                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2002

Johnson v. Telespectrum
Precedential or Non-Precedential:

Docket 1-1985




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Recommended Citation
"Johnson v. Telespectrum" (2002). 2002 Decisions. Paper 18.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/18


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                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                          _____________

                           No. 01-1985
                          _____________

                     RENECIA JOHNSON, LORRAINE KENNEDY, LYNETTE ADDISON,
           individually and on behalf of all others similarly situated

                    v.

                    TELESPECTRUM WORLDWIDE, INC., a Delaware corporation

                                                       Renecia Johnson,
Lorraine
                              Kennedy and Lynette Addison,
                                             Appellants
                          _____________

           Appeal from the United States District Court
                   for the District of Delaware
                   (D.C. Civ. No. 97-cv-00433)
            District Judge: Honorable Sue L. Robinson
                          _____________

            Submitted Under Third Circuit LAR 34.1(a)
                         January 7, 2002
      Before: MANSMANN, RENDELL and FUENTES, Circuit Judges.

                      (Filed January 15, 2002)
                           _____________

                 MEMORANDUM OPINION OF THE COURT
                          _____________
MANSMANN, Circuit Judge.



          Renecia Johnson, Lorraine Kennedy and Lynette Addison, the named
plaintiffs in this class action on behalf of all persons formerly employed
by Telespectrum
Worldwide, Inc. at its site in Wilmington, Delaware, sought statutory
damages as a result
of Telespectrum's alleged violation of the WARN Act. Plaintiffs appeal
from an order
of the District Court granting summary judgment to Telespectrum. Because
the District
Court correctly held that Plaintiffs failed to establish a prima facie
case where they failed
to establish the threshold number of employment losses required to trigger
the protection
of the WARN Act, we will affirm the order of the District Court.

                                I.
          The parties are familiar with the factual and procedural history
underlying
this matter. Accordingly, we turn directly to the merits of Plaintiffs'
appeal.
           Summary judgment is proper "against a party who fails to make a
showing
sufficient to establish the existence of an element essential to the
party's case and on
which that party will bear the burden of proof at trial." Celotex Corp.
v. Catrett, 477
U.S. 317, 322 (1986). In this case, Plaintiffs have the burden of proving
that a "plant
closing" or "mass layoff" under the WARN Act occurred. Under the plain
statutory
language, this entails a showing that (1) 50 employees, not including
part-time
employees, (2) at a single site of employment, (3) suffered an employment
loss. See 29
U.S.C.     2101 and 2102. Thus, at the summary judgment stage, Plaintiffs
were
required to adduce evidence from which a jury could reasonably conclude
that 50 or
more employees at the Wilmington site suffered an employment loss. See,
e.g., United
Mine Workers of America v. Florence Mining Co., 855 F.Supp. 1466, 1476
(W.D. Pa.
1994); May v. Shuttle, Inc., 129 F.3d 165, 174 (D.C. Dir. 1997).
           We have carefully reviewed the record in the matter, devoting
attention to
the employee information and summaries submitted to the District Court.
We find that
the District Court correctly concluded that Plaintiffs presented
insufficient evidence to
create a genuine issue of material fact as to whether 50 or more employees
(other than
excluded employees) experienced an employment loss.
          After reviewing the questionnaires, the District Court concluded
that less
than 50 individuals had been identified and noted that much of the
information provided
by Plaintiffs in the form of a summary chart was incomplete and
inaccurate. Indeed, of
the 55 employees Plaintiffs contends meet the threshold requirements, five
indicated they
had "quit" employment at Telespectrum. Plaintiffs assert these employees
should
nonetheless be counted because they may have ceased employment due to a
lack of work,
Telespectrum's closing of its night shift or its announcement of closing
of the
Wilmington site. To the contrary, WARN decisions have uniformly held that
employees
who voluntarily forego an opportunity to continue their employment do not
suffer an
employment loss, and the Final Rules indicate that the voluntariness of a
departure may
be called into question only in light of evidence of coercion, creation of
a hostile or
intolerable work environment, application of undue pressure by the
employer or similar
circumstances. Plaintiffs have offered no such evidence and accordingly
those
employees who quit are properly deducted from the number of employees
suffering
"employment loss." Similarly, Plaintiffs assert that a sixth employee who
indicated she
ceased employment "over a misunderstanding with a supervisor" should be
counted
because she may have quit or her discharge may not have been "for cause."
Again,
Plaintiffs have failed to provide any evidence to establish a question of
material fact as to
whether this employee suffered an employment loss. Because Plaintiffs
have clearly not
met the threshold requirements necessary to trigger notice provisions
under the WARN
Act, we need not address the remaining disputed employees.

                                II.
           For the reasons set forth above, we will affirm the order of the
District
Court.

_________________________________

To the Clerk:
Please file the foregoing opinion.


                                     /s/ Carol Los Mansmann
          Circuit Judge
                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                          _____________

                            No. 01-1985
                           _____________

                     RENECIA JOHNSON, LORRAINE KENNEDY, LYNETTE ADDISON,
           individually and on behalf of all others similarly situated

                    v.

                    TELESPECTRUM WORLDWIDE, INC., a Delaware corporation

                                                       Renecia Johnson,
Lorraine
                               Kennedy and Lynette Addison,
                                              Appellants
                           _____________

           Appeal from the United States District Court
                   for the District of Delaware
                   (D.C. Civ. No. 97-cv-00433)
            District Judge: Honorable Sue L. Robinson
                          _____________

      Before: MANSMANN, RENDELL and FUENTES, Circuit Judges.


                              JUDGMENT

          This cause came to be considered on the record from the United
States
District Court for the District of Delaware and was submitted under Third
Circuit LAR
34.1(a) on January 7, 2002.
          On consideration whereof, it is now here ordered and adjudged by
this
court that the judgment of the District Court entered on March 23, 2001,
be and the same
is hereby affirmed.
               Costs taxed against appellants.
                                   ATTEST:


                                    Clerk
 Dated: January 15, 2002
