                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

Palmer v. Reese Bros Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4594




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Recommended Citation
"Palmer v. Reese Bros Inc" (2005). 2005 Decisions. Paper 81.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/81


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                                         NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ___________

                          No. 04-4594
                          ___________

MARK PALMER; ALEXIS ABBOT; JACQUIE ANDERSKOVICH; DIANE AMOS;
  TOSHA ARNOLD; TYKISHA BECK; LARRY CAMINO; MARIE CAPANNA;
   KAREN CHRISTOPHER; JOANNE DAVIS; ANDREW P. DZATKO; SUSAN
  ESSEY; MICHELLE EWING; SUSAN GRECO; JAMIE GROVE; KATHLEEN
 HATALOWICH; BRANDI JERICHO; AMBER JOHNSON; TINA M. JOHNSON;
TIA JOHNSON; KIM LACOTTA; BERTHA LAMBERT; SCOTT LAMBERT; AMY
    LANE; CAROLE LEE; PAM LEWIS; MELISSA MEHN; BRENDA PAGE;
   BOBBIE PALMER; CATHERINE RAWLINS; LISA M. RENNER; BEVERLY
   REID; AARON RICHIE; MELANIE ROLL; JAMES R. ROLL; SHILA ROSE;
     JENNIFER ROTHEY; DELLA SECHRIST; LIBERTY SHAFFER; LORI
   SKULLY; UVETA SMITLEY; JOY SETHMAN; CRYSTAL SMITH; SHARIE
  SMITH; VERONICA TOMAN; DUSTIN TOMAN; GERALD TOYE; KYLONA
      VALENTINO; CHRISTOPHER WALTERS; KEVIN WASHINGTON;
   GEORGENE WHIPKEY; BETTY WILLIAMS; DANA ZAIS; APRIL DIANE
           BENEDIK; NAOMI BELL; KARA CHRISTINE HENRY

                                v.

                     REESE BROTHERS, INC.


                        MARK PALMER; ALEXIS ABBOT; JACQUIE
                        ANDERSKOVICH; DIANE AMOS; TOSHA
                        ARNOLD; TYKISHA BECK; LARRY CAMINO;
                        MARIE CAPANNA; KAREN CHRISTOPHER;
                        JOANNE DAVIS; ANDREW P. DZATKO; SUSAN
                        ESSEY; MICHELLE EWING; SUSAN GRECO;
                        JAMIE GROVE; KATHLEEN HATALOWICH;
                        JERICHO BRANDI; AMBER JOHNSON; TINA M.
                        JOHNSON; TIA JOHNSON; KIM LACOTTA;
                        BERTHA LAMBERT; SCOTT LAMBERT; AMY
                        LANE; CAROLE LEE; PAM LEWIS; MELISSA
                        MEHN; BRENDA PAGE; BOBBIE PALMER;
                                   CATHERINE RAWLINS; LISA M. RENNER;
                                   BEVERLY REID; AARON RICHIE; MELANIE
                                   ROLL; JAMES R. ROLL; SHILA ROSE; JENNIFER
                                   ROTHEY; DELLA SECHRIST; LIBERTY
                                   SHAFFER; LORI SKULLY; UVETA SMITLEY;
                                   JOY SETHMAN; CRYSTAL SMITH; SHARIE
                                   SMITH; VERONICA TOMAN; DUSTIN TOMAN;
                                   GERALD TOYE; KYLONA VALENTINO;
                                   CHRISTOPHER WALTERS; GEORGENE
                                   WHIPKEY; BETTY WILLIAMS; DANA ZAIS;
                                   APRIL DIANE BENEDIK,

                                   Appellants


                                      ___________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                          (D.C. Nos. 03-cv-00458, 02-cv-1019)
                   District Judge: The Honorable William L. Standish
                                     ___________

                            ARGUED OCTOBER 18, 2005

          BEFORE: SMITH, STAPLETON, and NYGAARD, Circuit Judges.

                               (Filed December 20, 2005)
                                      ___________

Ernest B. Orsatti, Esq. (Argued)
Jubelirer, Pass & Intrieri
219 Fort Pitt Boulevard
Pittsburgh, PA 15222-1505

             Counsel for Appellants

Jeffrey B. Balicki, Esq. (Argued)
Feldstein, Grinberg, Stein & McKee
428 Boulevard of the Allies

                                            2
Pittsburgh, PA 15219

              Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Appellants sued under the Worker Adjustment and Retraining Notification

Act, 29 U.S.C. § 2101 et seq., for back pay because they were not notified of a plant

closing or mass layoff, sixty days before the layoff or closing as required by the Act.

The WARN Act’s notice provision exclusively applies to companies with fifty or more

employees, excluding part-time employees, on the date sixty days prior to the date of the

plant closing or mass layoff (the “snapshot date”). The burden rests on the plaintiffs to

prove that the Act applies.

              Following a bench trial, the District Court held that plaintiffs failed to make

out a prima facie case under the WARN Act because they did not prove that Reese

Brothers, Inc. had the requisite number of employees to trigger the protection of the Act.



Appellants challenge the District Court’s conclusion that they failed to prove that there

was either a plant closing or mass layoff, and that Reese Brothers employed fewer than

fifty employees (excluding part-time employees) as of the snapshot date. We will affirm.

                                             I.

                                             3
              The WARN Act protects workers, their families and their communities by

requiring that employers subject to the Act provide notice sixty calendar days before a

plant closing or mass layoff. Employers who violate the WARN Act’s requirements are

liable to the affected employees for “back pay for each day of the violation at a rate of

compensation not less than the higher of the average regular rate received by such

employees during the last three (3) years of the employee’s employment or the final

regular rate received by such employee[.]” 29 U.S.C. § 2104(a)(1); United Steel Workers

of America v. Crown Cork & Seal Co., 32 F.3d 53 (3d Cir. 1994).

              A plaintiff bears the initial burden of proving that there was a plant closing

or mass layoff as defined by the Act to make out a prima facie case under the Act, and

that the organization employed at least fifty employees, excluding part-time employees,

as of the snapshot date to trigger the Act’s mandatory notice provision. Part-time

employees are defined as those who average fewer than twenty hours of work per week or

who have been employed for fewer than six of the twelve months preceding the date on

which notice is required. 29 U.S.C. §§ 2101(a)(8). A plant closing is “the permanent or

temporary shutdown of a single site of employment . . . if the shutdown results in

employment loss at the single site of employment during any thirty (30) day period for

fifty (50) or more employees excluding any part-time employees[.]” 29 U.S.C. §

2101(a)(2). A mass layoff is “a reduction in force which is not the result of a plant

closing; and results in an employment loss at a single site of employment during any

thirty (30) day period for at least 33-1/3% of the employees (excluding part-time

                                             4
employees) and at least fifty (50) employees (excluding 50 employees). . . [.]” 29 U.S.C.

§ 2101(a)(3). All employees, including part-time employees, are entitled to notice of the

plant closing or mass layoff no less than sixty days before the closing or layoff – the

snapshot date – provided that the threshold count of fifty employees is satisfied. 29

U.S.C. § 2102(a)(1); 20 C.F.R. 639.5 (a)(2), 639.6(b) (2004). Employees who are offered

and accept a transfer to another employment site operated by the employer have not

suffered an employment loss. Employees who voluntarily depart or resign have also not

suffered an employment loss. Moore v. Warehouse Club, Inc., 992 F.2d 27 (3d Cir.

1993).1

                                             II.

              The District Court found that the plaintiffs did not meet their burden of

proving that Reese Brothers employed fifty employees, excluding part-time employees, as

of the snapshot date of January 20, 2002. On that date, the Court found that Reese

Brothers had, at most, only forty-six employees, excluding part-time employees.

              The District Court's determination rested first on the credibility of a

particular Plaintiff, Beverly Reid, whose testimony, if credible, would have put Reese

Brothers above the fifty employee mark as of the snapshot date. The District Court found

Reid’s testimony incredible. Specifically, she admitted that she did not work for the



1.      Defendant and the District Court also bring our attention to Johnson v.
Telespectrum Worldwide, Inc., 29 Fed. Appx. 76 (3d Cir. 2002). This opinion is factually
on point but was non-precedential. Although, not binding on us, it informs our decision.

                                              5
human resources department and was not involved in the termination or resignation

process except to recommend that a telemarketer be fired if he or she was rude on the

phone. Reid offered no testimony to substantiate that the employees about which she

testified fell outside of the definition of part-time employees who are not counted in

calculating if Reese Brothers had at least fifty employees. Lastly, her testimony as to

specific hiring and termination dates of particular employees substantially conflicted with

Reese Brother’s employee database maintained by its information technology department.

We find no clear error in the District Court’s credibility determination.

              The District Court also did not include in its calculation of forty-six

employees certain employees that plaintiffs claim were admitted by Reese Brothers’

answer to be full-time employees on January 20, 2002. We conclude that this was proper.

Giannone v. United States Steel Corp., 238 F.2d 544, 547-48 (3d Cir. 1956). Here,

appellants failed to tender into evidence, or indeed call to the attention of the Court at

trial, Reese Brothers’ answer to their complaint which they contend would have proved

the WARN Act’s numerosity requirement.

              Finally, we note that even if Reese Brothers had fifty or more employees as

of the snapshot date, the WARN Act would not apply because, as the District Court

correctly found, there was neither a plant closing nor mass layoff. We held in Moore, 992

F.2d at 29-31 (3d Cir. 1993), as the District Court noted, “that the definition of

‘employment loss’ set forth in the statute [does] not apply to transferred employees

because such employees continue . . . as employees, albeit in different positions at another

                                              6
location.” App. at 25-26. In order to find “employment loss” by fifty or more employees

on this record, one would have to include four employees who transferred to new

positions at other locations.

                                           III.

              Because Plaintiffs’ failed to meet their burden in making out a prima facie

case under the WARN Act, the order of the District Court will be affirmed.




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