           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 9, 2008

                                                                      Charles R. Fulbruge III
                                       No. 07-60885                           Clerk


PHYLLIS BREWER; DOROTHY CAINE; EDDIE L CAINE; GWENDOLYN
CHANDLER; LOLA CUNNINGHAM; ET AL

                                                  Plaintiffs-Appellants
v.

AMERICAN POWER SOURCE, INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:06-CV-135


Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiffs challenge the adverse summary-judgment on their claims under
the Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C.
§ 2102 et seq. The primary issue at hand is whether a genuine issue of material
fact exists on whether the February 2005 layoffs by Plaintiffs’ former employer,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-60885

American Power Source (APS), were a “mass layoff” for purposes of triggering
the WARN Act; specifically, whether two APS plants were a “single site of
employment” under the Act. AFFIRMED.
                                        I.
      In February 2005, APS laid off 102 employees from its Columbus,
Mississippi, plant, including Plaintiffs. This action was filed in January 2006.
The November 2006 amended complaint, for 49 named Plaintiffs, and “other
Plaintiffs similarly situated”, claimed APS violated the WARN Act by not
providing advance notice of the layoffs.
      Following discovery, APS moved for summary judgment on Plaintiffs’
WARN Act claim. APS contended dismissal was proper for several reasons,
including that 60-days’ notice of the layoff was not required because, under the
WARN Act, the layoff was not a “mass layoff” because less than one-third of APS’
employees at the “single site of employment” suffered an “employment loss”.
      Attached to APS’ motion were three declarations: by APS’ president, office
manager, and plant manager. The office manager: confirmed the February 2005
layoffs of 102 Columbus employees, out of the 343 Columbus, Mississippi, and
Fayette, Alabama, employees; and stated, inter alia, that the Columbus and
Fayette plants perform the same function–producing military uniforms to fulfill
the same government contract–and share employees. As noted, APS maintained
the Columbus and Fayette plants were a “single site of employment” under the
WARN Act.
      After receiving two extensions of time, Plaintiffs filed their opposition to
summary judgment.       They contended, inter alia, that the Fayette plant’s
employees should not be counted with the Columbus plant’s for purposes of


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determining whether a sufficient percentage of employees was laid off to
constitute a “mass layoff”. Along that line, they maintained, but without
providing supporting evidence, that the Columbus and Fayette plants were not
a “single site of employment” because, inter alia, they do not routinely share
employees.
      Defendant replied, contending, inter alia, that Plaintiffs failed to create a
genuine issue of material fact on whether one-third of the employees at the
relevant “single site of employment” suffered an employment loss.
      On 24 September, a pretrial conference was held (in anticipation of a
bench trial). On 3 October, however, Defendants’ summary judgment was
granted on the basis that Plaintiffs failed to produce sufficient evidence to create
a genuine issue of material fact. The court noted, inter alia, that Plaintiffs
offered no evidence to rebut APS’ assertion that no “mass layoff”, under WARN,
had occurred. It held, inter alia, that the WARN Act’s “unexpected business
circumstances” exception excused APS’ failure to give 60-days’ notice. (It did not
address the single-site issue.)
      On 22 October, Plaintiffs moved for relief from, or amendment of, the
judgment. For an issue not controlling for the mass-layoff issue at hand, they
pointed to 48 laid-off employees who were not contacted for recall within six
months of the layoff and attached declarations of nine such employees.
Defendant responded on 24 October. The district court denied the motion. It
noted that Plaintiffs “rel[ied] almost entirely upon arguments and facts which,
with reasonable diligence, could have been presented to this court originally”,
and ruled summary judgment remained appropriate.




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                                  No. 07-60885

                                        II.
      A summary judgment is reviewed de novo, applying the same standard as
did the district court. E.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir.
2005). Such judgment is appropriate if there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
      “We resolve doubts in favor of the nonmoving party and make all
reasonable inferences in favor of that party.” Dean v. City of Shreveport, 438
F.3d 448, 454 (5th Cir. 2006). No genuine issue of material fact exists, however,
if, based on the summary-judgment evidence, no reasonable juror could find for
the nonmovant. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255,
260 (5th Cir.), cert. denied, 128 S. Ct. 181 (2007).
      To survive summary judgment, a plaintiff must provide sufficient evidence
to create a genuine issue of material fact. E.g., Celotex Corp. v. Catrett, 477 U.S.
317, 324-25 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“This Court has cautioned that conclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden in
a motion for summary judgment.” Ramsey v. Henderson, 286 F.3d 264, 269 (5th
Cir. 2002) (citation and internal quotation marks omitted); see also FED. R. CIV.
P. 56(e) (“party may not rest upon the mere allegations or denials of the adverse
party’s pleadings”).
                                        A.
      As a threshold matter, our de novo review is limited to the evidence that
would be properly before the district court when it made its summary-judgment
ruling. E.g., Palasota v. Haggar Clothing Co., 499 F.3d 474, 489 n.12 (5th Cir.
2007) (citation omitted). Along that line, Plaintiffs do not appeal from the denial


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of their motion for reconsideration. Their notice of appeal stated the 3 October
2007 summary-judgment was being appealed; they did not either amend it to
include the order denying reconsideration or file a new notice appealing that
order; and their brief does not mention that denial. See Feiss v. State Farm
Lloyds, 392 F.3d 802, 806-07 (5th Cir. 2004) (refusing to review reconsideration-
denial where no intent to appeal it was shown); FED. R. APP. PROC. 3(c)(1)(B)
(stating notice must indicate which judgment is appealed), 4(a)(1)(A) (stating
notice can be amended). Thus, our de novo review includes Plaintiffs’ opposition
to summary judgment, but not their motion for new trial, with the requested
supplemental evidence. See, e.g., Theriot v. Parish of Jefferson, 185 F.3d 477,
491 n.26 (5th Cir. 1999).
                                         B.
      Further, the judgment can be affirmed on any basis preserved in district
court. See, e.g., Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997). Here,
as it did in district court, APS contends Plaintiffs failed to create a genuine issue
of material fact on whether the layoffs constitute a “mass layoff” (including the
single-site-of-employment subissue) so that notice would be required under the
WARN Act. As noted, the district court did not reach this single-site issue.
Although they responded to this issue in district court, Plaintiffs do not brief it
here, even though it is raised in APS’ response brief. In other words, Plaintiffs
did not respond to the issue through a reply brief. We do not consider their
district court brief. E.g., Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir.)
(refusing to incorporate by reference district court pleadings), cert. denied, 128
S. Ct. 34 (2007).




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                                  No. 07-60885

                                        C.
      Under the WARN Act, an employer must provide 60-days’ written notice
of a “mass layoff”. 29 U.S.C. § 2102(a). A “mass layoff” is defined, in relevant
part, as: “an employment loss at the single site of employment . . . for – at least
33 percent of the employees”. 29 U.S.C. § 2101(a)(3) (emphasis added). We
assume, arguendo, each laid-off employee suffered an “employment loss”.
      Therefore, to prevail, for summary judgment purposes, on whether APS’
February 2005 layoff was a “mass layoff”, for which notice was required,
Plaintiffs had to provide specific facts creating a genuine issue of material fact
on, inter alia, whether at least one-third of the employees at APS’ “single site of
employment” suffered an employment loss. See 29 U.S.C. § 2101(a)(3), (6); see
also, e.g., Ramsey, 286 F.3d at 269 (summary judgment burden).
      Again, in moving for summary judgment, APS contended in district court
(as it does now) that the February 2005 layoff was not a mass layoff because less
than one-third of the employees at its “single site of employment” suffered an
employment loss. It asserted that, even if all 102 laid-off employees suffered an
employment loss, those 102 do not comprise one-third of the single-site’s
employees because APS employs 343 employees at the relevant “single site of
employment” – the Columbus and Fayette plants. See 20 C.F.R. § 639.3(i)(1)-(5),
(8) (describing what constitutes a “single site of employment”); Viator v.
Delchamps, Inc., 109 F.3d 1124, 1127 (5th Cir. 1997) (listing factors: “1) the
separate facilities are in ‘reasonable geographic proximity’ of one another; 2)
they are ‘used for the same purpose’; 3) and they “share the same staff and
equipment’” (quoting 20 C.F.R. § 639.3(i)(3))). Defendants also relied upon
Carpenters District Council of New Orleans & Vicinity v. Dillard Department
Stores, Inc., 15 F.3d 1275 (5th Cir. 1995), in which two sites, one of which was


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an expansion of the original site, were held to be a “single site of employment”.
As discussed, in support, APS relied upon its office manager’s declaration stating
that the two plants are within 40 miles of each other, manufacture the same
uniforms to fulfill the same contract, and share management and payroll
personnel; and that the Columbus plant was an expansion of Fayette’s facilities.
                                        1.
      In opposition to summary judgment, as the district court noted, Plaintiffs
presented very little evidence. Moreover, they made no attempt to prove the
elements of their claims or dispute APS’ summary-judgment evidence.
      In district court, Plaintiffs only asserted that the employees in APS’
Fayette plant should not be counted with the Columbus plant’s employees in
determining whether one-third of the employees were affected, contending, as
noted, that the Columbus and Fayette plants do not constitute a “single site of
employment” because they are in different States and that, although APS
occasionally transferred employees between the two plants, those plants did not
“share the same staff and equipment”. See Viator, 109 F.3d at 1127 (listing the
latter as a factor). Plaintiffs did not discuss the managerial personnel APS’
office manager declared were shared, and made no attempt to distinguish
Carpenters. (Again, Plaintiffs do not even brief the single-site issue here.)
      As noted, Plaintiffs were required in district court to provide specific facts
in order to create a genuine issue of material fact on whether at least one-third
of APS’ employees at the relevant “single site of employment” suffered an
employment loss. Plaintiffs failed to do so because they offered no facts to create
this material fact issue. They have provided no facts that, if proven, entitle
them to relief against summary judgment. Restated, plaintiffs have provided no
summary judgment proof in support of their assertions and arguments
responding to the summary-judgment motion.

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                                 No. 07-60885

      In sum, no evidence exists from which a reasonable juror could conclude
that one-third of APS’ employees at Plaintiffs’ single site of employment were
laid off.   (Again, it is assumed that all laid-off employees suffered an
“employment loss”.) Therefore, Plaintiffs failed to create a genuine issue of
material fact on whether a “mass layoff” occurred so that 60-days’ notice would
be required.
                                       2.
      As discussed, for the second prong for obtaining a summary judgment,
APS must be “entitled to judgment as a matter of law”. FED. R. CIV. P. 56(c). For
the reasons stated above, it is entitled to such judgment.         (Accordingly,
Defendants’ alternative bases for upholding the judgment need not be reached.)
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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