OCAW, Local 7-629 v. RMI Titanium Company

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 36 OCAW, Local 7-629, et al. No. 98-4336 Pursuant to Sixth Circuit Rule 206 v. RMI Titanium Co. ELECTRONIC CITATION: 2000 FED App. 0016P (6th Cir.)

File Name: 00a0016p.06

For the foregoing reasons, I would hold that plaintiffs- appellants have raised legitimate fact questions on whether UNITED STATES COURT OF APPEALS additional employees should be counted. As a result, I would reverse the district court’s grant of summary judgment to FOR THE SIXTH CIRCUIT defendant and remand the case for trial. _________________

; 

OIL, CHEMICAL AND ATOMIC



WORKERS INTERNATIONAL



UNION, LOCAL 7-629,



No. 98-4336

AFL-CIO, et al.,



Plaintiffs-Appellants,>

  

v.



Defendant-Appellee. 

RMI TITANIUM COMPANY,



1

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 92-01679—Paul R. Matia, Chief District Judge.

Argued: November 3, 1999

Decided and Filed: January 12, 2000 Before: MARTIN, Chief Judge; DAUGHTREY, Circuit Judge; HILLMAN,* District Judge.

*

The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation.

2 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 35 v. RMI Titanium Co. v. RMI Titanium Co.

_________________ acknowledge the existence of facts in the record (elicited from defendant’s own agents) which directly contradict its present COUNSEL claim that the employees were part-time. First, in its answers to appellants’ interrogatories, appellee represented that none ARGUED: David A. Santacroce, SUGAR LAW CENTER of the employees laid off between April 23, 1991 and FOR ECONOMIC AND SOCIAL JUSTICE, Detroit, November 17, 1991 worked less than 20 hours per week in Michigan, for Appellants. Barton A. Bixenstine, ULMER & the last 90 days of work or the actual time worked, whichever BERNE, Cleveland, Ohio, for Appellee. ON BRIEF: David is shorter. J.A. pp. 178-79. In addition, in the affidavit of A. Santacroce, Julie H. Hurwitz, SUGAR LAW CENTER Jerome Bennett, attached to appellee’s motion for summary FOR ECONOMIC AND SOCIAL JUSTICE, Detroit, judgment and contained in the appendix, Bennett averred that Michigan, Theodore E. Meckler, Cleveland, Ohio, for 13 of the 21 employees whose voluntary recall ended between Appellants. Barton A. Bixenstine, ULMER & BERNE, July 22, 1991 and August 21, 1991 were full time employees. Cleveland, Ohio, for Appellee. Bennett Aff. ¶ 9, J.A. p. 201. Twenty-one of the 27 employees at issue here were returned to layoff on August 5, DAUGHTREY, J., delivered the opinion of the court, in 1992, and only one other employee’s voluntary recall ended which MARTIN, C. J., joined. HILLMAN, D. J. (pp. 12-36), during the period between July 22, 1991 and August 21, 1991. delivered a separate dissenting opinion. J.A. pp. 151-52 (V. Johnson (whose regular layoff date is July 22, 1991) is shown as returning to layoff after voluntary recall _________________ on August 19, 1991).

OPINION These record statements made by defendant-appellee create _________________ a genuine issue of material fact concerning the full-time status MARTHA CRAIG DAUGHTREY, Circuit Judge. The of at least 13 or as many as all of the 27 employees who were plaintiffs, Oil, Chemical and Atomic Workers’ (OCAW) returned to layoff following voluntary recall between August Union Local 7-629, Kenneth Allen, and a class of OCAW and September 1991. Accordingly, appellee is not entitled to members separated from employment during July and August summary judgment on the basis of this alternative argument. 1991, advanced a claim for damages under the Worker III. Adjustment Retraining and Notification Act of 1988 (WARN) against the defendant, RMI Titanium Company. The In upholding the district court’s grant of summary plaintiffs alleged that by failing to give its employees judgment, the majority gives conclusive weight to the adequate notice of the layoffs, the company violated evidence adduced by the employer while disregarding or provisions of the Act. In response to cross-motions for discounting both circumstantial and direct evidence presented summary judgment, the district court ruled in the company’s by plaintiffs-appellants. In our judicial system, it is the favor, finding that the plaintiffs had failed to establish the appointed finders of fact who alone are permitted to sort requisite number of layoffs to trigger the notice provisions through such conflicting evidence, to determine credibility, under WARN. We affirm. and to make reasonable inferences. Because the majority’s decision oversteps its role, and out of respect for the structure of our judicial system, I respectfully dissent.

34 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 3 v. RMI Titanium Co. v. RMI Titanium Co.

Activity in the Voluntary Layoff Program, J.A. pp. 150-52. I. PROCEDURAL AND FACTUAL BACKGROUND In light of this pattern, defendant-appellee’s failure to anticipate that at least two employees would request voluntary The facts are largely undisputed. RMI Titanium layoff during the relevant 90 days was patently unreasonable. experienced a downturn in its business beginning in 1990, which precipitated a series of layoffs as part of a continuing Appellee next claims without discussion that layoffs caused reduction in its workforce, beginning with an initial layoff of by the voluntary layoff program resulted from a cause that 60 unionized employees in 1990. In January 1991, the was separate and distinct from RMI’s overall economic company warned union representatives of the need for further difficulties. I reject that claim. Although the 27 voluntarily reductions and laid off another 29 employees in February recalled employees were returned to layoff status as the result 1991. Despite these efforts, RMI posted losses of $2.5 of the return to work of more senior employees, it is not this million in the first six months of 1991. change that triggered their employment loss. Instead, as a direct result of RMI’s economic difficulties, these employees, During the spring of 1991, approximately 197 unionized, once returned to layoff status, lost all opportunity for further non-salaried employees and 72 non-unionized, salaried recalls. Specifically, as the result of the dramatic number of employees were working full-time at RMI’s Metals Plant. Of new layoffs of more senior employees, these employees the unionized employees,14 senior union members experienced an employment loss because they lost any participated in a “voluntary layoff” program negotiated with reasonable expectation of recall and their previously RMI in 1986 and made available to employees during periods temporary layoffs were rendered permanent. of workforce reduction. Employees taking a voluntary layoff received one month’s unpaid leave, subject to renewal, and Accordingly, while their return to layoff status in and of were replaced by union members previously (involuntarily) itself was arguably tied to the separate cause of the more laid off from the plant who possessed similar job skills. At senior employees having voluntarily returned to work under the end of the senior employee’s voluntary layoff, the the voluntary layoff program, their employment loss, the replacement was returned to “layoff” status, unless he or she relevant consideration at issue here, occurred not because they was asked to replace another senior employee. were placed on layoff, but because that layoff was no longer temporary and instead continued for a period of greater than Of the 72 non-unionized employees working at the Metals six months. 29 U.S.C. § 2101(6)(B). The employment loss, Plant during the first half of 1991, approximately 13 therefore, was caused not by the voluntary layoff program, but employees were assigned to a research and development by the same economic causes precipitating the rest of the project referred to internally as the Electrolytic Titanium layoffs occurring during the 90-day period, that is, the Project (ETP). The project’s objective was the development accelerating economic downturn of the company. of a variation on titanium production processes in use at the Metals Plant. RMI shared funding responsibilities for this Appellee’s final argument is that all of the 27 employees project with an Italian company, Ginatta Torino Titanium. were part-time employees and therefore were not countable in determining whether a mass layoff occurred. See 29 U.S.C. The company continued its layoffs during the summer of § 2102(a)(3)(B) (excluding part-time employees). In support 1991, laying off 85 additional unionized workers in July and of its assertions, appellee makes absolutely no citations to the August, and five non-unionized employees, including three record. Moreover and more significantly, appellee fails to members of the ETP team. Also during this time, 4 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 33 v. RMI Titanium Co. v. RMI Titanium Co.

approximately 35 senior unionized employees took one- or “unforeseeable business circumstances.” Title 29 United two-month leaves under the voluntary layoff program; they States Code, § 2102(B)(2)(A) provides that were replaced by previously separated junior employees recalled from and then returned to layoff status. Apparently, An employer may order a plant closing or mass layoff none of the employees laid off during this period received before the conclusion of the 60-day period if the closing advance notice of their change in job status. or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice Despite these measures, the company’s financial would have been required. misfortunes continued, and it commenced shutting down some of its production facilities in January 1992. The Metals Besides making the blanket assertion that it is protected by the Plant closed on February 15, 1992. Later that year, the exception, defendant-appellee makes no attempt to analyze plaintiffs brought this WARN action against RMI, claiming the applicability of the statutory provision. violation of the notice provisions of the Act.

By its plain terms, the quoted exception is designed to II. DISCUSSION provide a mechanism for an employer to engage in a mass layoff with less than 60 days of notice based on circumstances WARN Liability in which an employer had been prevented from projecting the need for or the size of layoffs because business circumstances The Worker Adjustment Retraining and Notification Act were not reasonably foreseeable. In other words, the provides, in pertinent part, that: exception provides an escape valve to the length of notice period required in those circumstances in which the employer An employer shall not order a plant closing or mass was unable to project the need for mass layoffs 60 days in layoff until the end of a 60-day period after the employer advance in order to provide the required notice. Here, serves written notice of such an order . . . to each defendant-appellee instead attempts to use the provision not representative of the affected employees as of the time of to excuse the unknown economic necessity for layoffs, but to the notice or, if there is no such representative at that excuse its need to project with some degree of precision how time, to each affected employee. many employees would use the voluntary layoff program.

29 U.S.C. § 2102(a) (1994). The purpose of this provision is Even if the provision could be interpreted to apply to RMI’s “to ensure that ‘workers receive advance notice of plant inability to project how many people might be on voluntary closures and mass layoffs that affect their jobs.’” Kildea v. recall, defendant-appellee has failed to create a genuine issue Electro-Wire Products, Inc., 144 F.3d 400, 405 (6th Cir. of fact as to whether it was reasonably foreseeable that the 1998) (quoting Marques v. Telles Ranch, Inc., 131 F.3d 1331, number of voluntary layoffs in the 90-day period would equal 1333 (9th Cir. 1997)). Under WARN, an “affected or exceed two, the total number of additional employees employee” is an employee “who may reasonably be expected required to trigger a mass layoff under WARN. The record to experience an employment loss as a consequence of a reflects that between September 1990 and September 1991 an proposed plant closing or mass layoff by their employer.” 29 average of nine employees per month participated in the U.S.C. § 2101(a)(5). An “employer” is “any business voluntary layoff program, and in no month did fewer than enterprise that employs . . . 100 or more employees, excluding three employees participate in the program. See Summary of part-time employees.” 29 U.S.C. § 2101(a)(1)(A). An 32 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 5 v. RMI Titanium Co. v. RMI Titanium Co.

on layoff, with their original layoff date, while the more “employment loss” is “an employment termination, other than senior active employees are treated as remaining on active a discharge for cause, voluntary departure, or retirement . . . status. As a consequence, defendant-appellee suggests, the a layoff exceeding 6 months, or . . . a reduction in hours of layoffs of these 27 employees as regular employees must be work of more than 50 percent during each month of any 6- considered under the contract to have occurred prior to the month period.” 29 U.S.C. § 2101(a)(6). WARN period at issue here, when they were first laid off, and should not be countable as relevant employment losses. Certain statutory thresholds apply in order for a layoff or sequence of layoffs to constitute a “mass layoff” and subject As I previously noted, however, contract rights under the an employer to liability under WARN: collective bargaining agreement are not affected by and have no effect on the rights of employees under WARN. 29 U.S.C. [T]he term “mass layoff” means a reduction in force § 2105. Contractual terms, therefore, may not be used to which -- either expand or contract the statutory language.

(A) is not the result of a plant closing; and In addition, under the regulations, even if these workers are considered temporary replacement employees as opposed to (B) results in an employment loss at the single site of returning laid-off regular employees, they must be counted employment during any 30-day period for– under WARN as employees for purposes of determining whether a mass layoff has occurred. Pursuant to 20 C.F.R. (i)(I) at least 33 percent of the employees § 639.3(c)(2), (excluding any part-time employees); and

Workers, other than part time workers, who are exempt (II) at least 50 employees (excluding any part-time from notice under section 4 of WARN [29 U.S.C. employees); or § 2103(1)] are nonetheless counted as employees for purposes of determining coverage as a . . . mass layoff. (ii) at least 500 employees (excluding any part-time For example, if an employer closes a temporary project employees). on which 10 permanent and 40 temporary workers are 29 U.S.C. § 2101(a)(2). In order to trigger the notice employed, a covered plant closing has occurred although requirement under this section, if the employer lays off fewer only 10 workers are entitled to notice. than 500 employees in an action unrelated to a plant closing, (Emphasis added.) For both reasons, I am persuaded that the number of employees laid off must exceed 50 and must contractual classification of these employees neither has nor also exceed 33 percent of the total number of employees. could have any bearing on whether they should be counted Department of Labor regulations governing WARN under WARN for purposes of determining whether a mass enforcement require that these figures be calculated at a layoff has occurred. “snapshot”date, the date notice is first required to be given.

See 20 C.F.R. § 639.5(a)(2) (1999). Even where the number Defendant-appellee next contends that even if the 27 of layoffs does not exceed both 50 and 33 percent of the total employees should otherwise be counted in determining the number of employees, however, layoffs occurring in separate threshold number under WARN, they fall within a statutory reduction actions may be aggregated into a “mass layoff” if exception to being counted because they were caused by each set of layoffs involves fewer workers than required by 6 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 31 v. RMI Titanium Co. v. RMI Titanium Co.

the two statutory thresholds and all layoffs occur within the unfair to penalize the employer for permitting use of the same 90-day period. See 29 U.S.C. § 2102(d). Where this is voluntary layoff program. the case, the employer will be liable under WARN for failure to notify “unless [it] demonstrates that the employment losses I disagree. By the explicit terms of the statute, WARN are the result of separate and distinct actions and causes and provisions are to have no effect on contractual rights. See 29 are not an attempt by the employer to evade the requirements U.S.C. § 2105 (“The rights and remedies provided to of [WARN].” Id. employees by this chapter are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of In this case, the parties stipulate that RMI employed 269 the employees, and are not intended to alter or affect such workers on the “snapshot” date for the first of the layoffs in rights and remedies . . . .”). As a result, the reasons for and question, May 23, 1991. All parties also agree that 85 the existence of a contractual provision governing voluntary unionized and two non-unionized employees were laid off layoffs is irrelevant to the interpretation or reach of the during the 90-day period following the initial layoffs, and statute. Moreover, because the employer was or should have that these layoffs may be added together to make 87 total been aware that WARN required the employer to consider the layoffs, or 32.34 percent of the total employees. The parties impact on temporarily laid off workers as well as active disagree as to the district court’s conclusion that neither the employees, the employer is not unfairly burdened by layoffs of the three non-unionized members of the ETP team considering the impact of its reduction in force on the nor the layoffs of 27 OCAW members after temporary recall, employment of temporarily laid off workers who had the events that took place during the same 90-day period, should potential to be voluntarily recalled. Finally, in interpreting be counted with the other layoffs in order to reach the “mass statutory language, it is hardly the responsibility of the court layoff” threshold for WARN liability. to determine what statutory provisions2 are “fair” in light of the employer’s contractual obligations. For all these reasons, ETP Employees the district court erred in concluding that it was unfair to include the 27 employees in the total number of laid off The appellants argue that the ETP layoffs, like the earlier employees. layoffs of unionized employees, resulted from “[RMI’s] continuing loss of income and resulting financial decline” Defendant-appellee next argues that even if the court rejects and, therefore, that RMI failed to demonstrate “separate and the reasoning of the district court, the 27 temporarily recalled distinct actions and causes” for the ETP layoffs that would employees should be excluded because the contract provides allow it to avoid WARN liability. See 29 U.S.C. § 2102(d). that employees who are temporarily recalled under the RMI argues in response that the layoffs of the three ETP voluntary recall program shall be treated as if they remained employees were due to the failure of project co-sponsor Ginatta to pay its required share of expenses. The company supported its summary judgment motion on this point with 2 the affidavit of Jerome Bennett, who at the time of the layoffs Further, even were it relevant whether the contract rights at issue in question was an RMI executive in charge of employee inure solely to the employees, the district court’s finding that the voluntary layoff program operates solely for the benefit of employees is relations. Bennett’s affidavit referred to a letter from John F. unsupported by the record. Indeed, the record reflects that the employer Hornbostel, Jr., RMI’s general counsel, to Dr. Marco V. paid only the wages to which the replacement worker was entitled, not the Ginatta, dated September 5, 1991, advising Ginatta that, since rate of the more senior employee on voluntary layoff. Bennett dep., J.A.

p. 372. Arguably, at least, the benefits also accrued to the employer.

30 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 7 v. RMI Titanium Co. v. RMI Titanium Co.

employment loss as the result of the employer’s economic monies previously agreed to be provided by Ginatta to RMI downturn and overall reduction in force. Defendant- “for May and June expenses” had not been received, RMI appellee’s layoffs of substantial numbers of additional would “shut down the MX-4 Facility at RMI’s Metals Plant employees during July and August 1991 had the effect of in Ashtabula, Ohio, tomorrow, Friday, September 6, 1991.” eliminating these 27 employees’ reasonable expectations of The record indicates that the three employees in question recall and converted their layoffs into qualifying were terminated the following Monday. The district court “employment losses” under the statute when they exceeded considered the letter in reaching its decision on the motion, six months. 29 U.S.C. § 2101(a)(6)(B) (defining an along with Bennett’s February 1994 affidavit and September employment loss as a layoff exceeding six months). As a 1993 deposition, in which he attributed the ETP layoffs to result, they experienced an employment loss at the time their problems obtaining funding from Ginatta. voluntary layoffs in August and September 1991 were rendered permanent. See Jones, 748 F. Supp. at 1284-85 The appellants attempted to rebut RMI’s assertions only (holding that it would be inconsistent with the meaning and with the deposition testimony of Warren Jensen, RMI’s vicepurpose of WARN to conclude that temporarily laid off president of personnel during 1991. Jensen, who was workers were not “affected employees” when their responsible for personnel matters at all five of RMI’s plants employment was permanently terminated). at the time, stated that RMI’s financial losses caused the “large force reductions in [its] salaried work force” during I therefore am persuaded that the majority’s conclusion that 1991. The record in this case shows that part of his the layoffs of the 27 employees did not constitute a reduction deposition testimony included the following exchange: in force misconstrues the structure of the statute and violates the clear statutory language, the purpose of the statute, and the Q: Do you know what the reasons were for that large implementing regulations. As a result, I conclude that both force reduction in the salaried work force that you’d the district court and the majority of this court have erred in already made? excluding the voluntarily recalled employees as a matter of law from the mass-layoff threshold count on the basis that the A: Certainly, it cut costs. layoffs of these employees resulted in no lost positions.

Q: Is it because of decreased sales and decreased profits In light of my conclusion, I must address the alternative during this time frame? rationale offered by the district court in support of its decision, together with the remaining arguments raised by A: RMI was very definitely losing money at that time, defendant-appellee, but not reached by the district court or the yes. majority of this court.

We are unable to conclude that these somewhat ambiguous The district court separately concluded that the counting of responses are sufficient to bring the three ETP layoffs within the 27 employees would be “unfair” to the employer. The the ambit of the notice requirement, because the record fails court reasoned that because the voluntary layoff program was a program adopted by the employer as part of the bargaining agreement solely for the benefit of the employees, it would be 8 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 29 v. RMI Titanium Co. v. RMI Titanium Co.

to show the context of the questions put to Jensen.1 We involved). I therefore am persuaded that the majority’s therefore agree with the district court’s determination that reading of the statute is unsupported by the legislative history. OCAW and the other plaintiffs failed to make a showing Instead, the legislative history lends further support to the sufficient to raise a genuine issue of material fact as to RMI’s position of plaintiffs-appellants. rationale for the September 1991 ETP layoffs. In response to a defendant’s summary judgment motion, a plaintiff “can no At bottom, the majority appears concerned that somehow longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by its sense of “fairness” would be offended to hold that these 27 affidavit or other evidence ‘specific facts,’ which for purposes employees, while temporarily employed, were active of the summary judgment motion will be taken to be true.” employees who experienced an actual layoff during the Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) statutory period, instead of employees who had been laid off (emphasis added) (citation omitted). Here the plaintiffs well before the large layoffs of the summer of 1991. This presented no specific evidence that would credibly controvert conclusion, however, is neither accurate nor contemplated by the September 5th letter from Hornbostel to Ginatta or offer the statute and regulations. To the extent these 27 people an opposing theory for why the three ETP employees were were already laid off, they were laid off with expectations of terminated. As to the ETP layoffs then, the district court was recall based on past notification and industry practice. See 20 correct in finding that they could not be aggregated with the C.F.R. § 639.3(a)(ii) (defining “reasonable expectation of other 87 layoffs in order to meet the threshold for WARN recall”). As the record reflects, these employees were treated liability. by the employer as regular employees. See Bennett dep., J.A.

p. 373. They were recalled with some regularity between Post-“Voluntary Layoff” Terminations their original layoff dates and their final layoffs in August or September 1991. See Voluntary Layoff Program Summary of The appellants also argue that 27 unionized employees who Activity, J.A. pp. 150-52 (showing repeated returns to work returned to layoff status during the 90-day period beginning for many of the 27 employees during the period between July 22, after being recalled to cover more senior employees November 1990 and August 1991). They also knew from on voluntary layoff, should have been counted as “laid off” experience that the 34 employees immediately preceding them under WARN. RMI does not dispute that the employment on the seniority list had been recalled to employment by the status of the 27 employees changed during the 90-day period; company on April 15 and April 29, 1991. See Recall Lists, rather, it argues that, as a matter of law, “layoffs” resulting J.A. pp. 272-73; Seniority List, J.A. pp. 214-215. Thus, a from participation in the voluntary leave/temporary recall reasonable factfinder could conclude that prior to August or program should not be counted as layoffs for WARN September 1991, when their voluntary recall periods ended, purposes. these laid-off employees had a reasonable expectation of recall. See Jones v. Kaiser-Roth Hosiery, Inc., 748 F. Supp.

The district court agreed and based its holding for RMI on 1276, 1284 (E.D. Tenn. 1990) (the fact that 111 employees two alternative grounds. First, it held that counting the return were recalled enhanced the expectation of the remaining 159 employees that they also would be recalled); Damron v. Rob Fork Mining Corp ., 739 F. Supp. 341 (E.D. Ky. 1990).

1 The quoted material appears at the top of a page of the transcribed deposition. However, the previous pages are missing both from the joint Moreover, these temporarily laid off employees could appendix and from the record. We thus have no way to determine whether experience and did experience a statutorily-defined or not the colloquy was directed toward the ETP employees.

28 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 9 v. RMI Titanium Co. v. RMI Titanium Co.

the only reading consistent with the treatment of temporarily to layoff status after temporary voluntary recall as a WARN laid off employees under the regulations. Under 29 C.F.R. layoff would be “manifestly unfair” to RMI , since RMI had § 639.3(a)(ii), agreed to the voluntary layoff/temporary recall program as a benefit for its unionized employees. Second, the court held Workers on temporary layoff or on leave who have a that, since Department of Labor regulations implementing reasonable expectation of recall are counted as WARN define a “mass layoff” as a “reduction in force” that employees. An employee has a “reasonable expectation results in an “employment loss” for at least 33 percent of of recall” when he/she understands, through notification employees at a single site of employment, the return of or through industry practice, that his/her employment employees to layoff status after being recalled temporarily with the employer has been temporarily interrupted and could not be considered layoffs contributing to a mass layoff that he/she will be recalled to the same or to a similar because this action involved no elimination of positions, and job. hence no reduction in force. Because we agree with the court’s reasoning on the second ground, we need not address The regulations require a worker on temporary layoff to be the first. counted as an employee whenever that employee has a reasonable expectation of being recalled. See also Kildea, The term “reduction in force,” used not only in the Labor 144 F.3d at 407 (holding that “employee” is an individual regulations but in the WARN statute itself, see 29 U.S.C. who is actively working or who is temporarily laid off with a § 2101(a)(3), is not without ambiguity. Congress did not reasonable expectation of recall). Yet the majority would define the phrase in enacting WARN, nor did the Department effectively disregard this definition of employee since a job of Labor offer clarification when promulgating regulations loss to a temporarily laid off worker could never result in a enforcing WARN. In an employment case involving reduction in the number of positions available and thus a allegations of age discrimination, however, we defined a temporarily laid off person could never be counted for reduction in workforce as a situation where “business purposes of the threshold mass layoff determination. The considerations cause an employer to eliminate one or more majority’s reading, therefore, is indisputably contrary to the positions within the company” and added that “[a]n employee clear and unambiguous language of the regulations. is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge.” Barnes v.

In addition, as the majority notes, the legislative history GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) does not discuss or define “reduction in force” or mention the (emphasis added); see also Matthews v. Allis-Chalmers, 769 elimination of “positions.” That same history, however, F.2d 1215, 1217 (7th Cir. 1985) (“[B]y definition, when the clearly reinforces the conclusion that Congress intended a employer reduces his work force he hires no one to replace mass layoff to be determined by counting the amount and the ones he lets go.”). Use of the Barnes definition, which percentage of employment loss and employees affected, not appears to reflect common parlance, is appropriate in this case by counting the amount or percentage of reduction in force or because it distinguishes the phrase “reduction in force” from whether positions have been eliminated. See H.R. Conf. Rep. the term “employment loss,” also present in WARN’s No. 100-576, at 1046 (1988), reprinted in 1988 U.S.C.C.A.N. definition of a mass layoff. See 29 U.S.C. § 2101(a)(6) 2078, 2079 (referring to employment losses and the (defining “employment loss” as “an employment termination, definitions of employment losses, and justifying notice other than a discharge for cause, voluntary departure, or requirement on disruption to communities and individuals retirement . . . a layoff exceeding 6 months, or . . . a reduction 10 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 27 v. RMI Titanium Co. v. RMI Titanium Co.

in hours of work of more than 50 percent during each month own definition or insertion of these terms to eliminate from of any 6-month period”). Applying this definition, we the threshold count two substantial groups of employees who conclude that no reduction in force occurred when expressly were included in a definition Congress did make: temporarily-recalled employees were again laid off, because the definition of employees experiencing an “employment they were replaced by the senior employees returning from loss.” The majority’s interpretation flies in the face of general voluntary layoff status. This distinguishes these “layoffs” principles of statutory construction under which the court is from those of the other 85 unionized employees separated required to give meaning to all terms in a provision and to from employment during July and August 1991, undisputedly interpret one statutory term in a manner that will not conflict laid off due to RMI’s financial losses and for whom no with other terms. replacements were hired. Because the return to layoff status of the 27 temporarily-recalled employees involved no Moreover, contrary to the majority’s tortured reading of the reduction in force, we agree with the district court’s decision statutory language to limit definitions adopted by Congress, that these “layoffs” may not be added to the other layoffs to a straightforward reading of the statute permits giving create a mass layoff triggering WARN liability. meaning to all terms, including “reduction in force” and “employment loss.” The use of “reduction in force” in the III. CONCLUSION statute is solely a means of describing a significant elimination of jobs “which . . . is not the result of a plant WARN expressly encourages employers to notify closing.” The resulting effect of this reduction in force is employees before permanent layoffs are effected, whether or separately described under the statute as the number and not the statute’s triggering thresholds are met. See 29 U.S.C. percent of employees experiencing an employment loss. § 2106 (“It is the sense of Congress that an employer who is not required to comply with the notice requirements of section As a result, even accepting that the term “reduction in 2102 of this title should, to the extent possible, provide notice force” requires — as the majority holds — that actual job to its employees about a proposal to close a plant or elimination must occur in order for a “mass layoff” to occur permanently reduce its workforce.”). These sentiments were — no dispute exists that a reduction in force has occurred echoed by the Department of Labor in promulgating during the layoffs at RMI in the summer of 1991. At least 87 regulations enforcing the statute. See 20 C.F.R. § 639.1(e) employees undisputedly lost their positions and were not (“It is civically desirable and it would appear to be good replaced during the economic downturn experienced by RMI. business practice for an employer to provide advance notice Thus, a “reduction in force” unquestionably has occurred. to its workers or unions, local government and the State when The remaining issue is whether that reduction in force “results terminating a significant number of employees. . . . The in an employment loss . . . for . . . at least 33 percent of the Department encourages employers to give notice in all employees . . . .” In other words, as the statute circumstances.”) (emphasis added). In the summer of 1991, unambiguously states, the definition does not require a RMI laid off 87 employees with no apparent notice, two reduction in force of 33 percent of the positions. It requires terminations short of the number necessary to make this a reduction in force resulting in an employment loss for 33 action a mass layoff. In so doing, RMI violated the spirit, if percent of the employees. not the letter of the law, providing these workers and their families with no transition time to seek alternative This reading of the statute is not only a preferred reading of employment or training for work outside the manufacturing the language and structure of Congress’ definition, it also is 26 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 11 v. RMI Titanium Co. v. RMI Titanium Co.

concludes that because the 27 temporarily recalled employees sector, and causing almost a decade’s worth of ensuing were replaced by the returning senior employees, they may litigation.2 not be counted as part of a reduction in force. The majority therefore concludes that it need not determine whether these Nevertheless, RMI has won the numbers game these employees have experienced an “employment loss” as defined parties ultimately played. We agree with the district court that by the statute. there is no genuine issue of material fact that RMI terminated 87 employees within the 90-day period beginning July 22, The majority’s interpretation of the statutory “reduction in 1991, and that only these layoffs may be counted toward force” language renders redundant, or meaningless in most triggering the 33 percent threshold for purposes of WARN’s circumstances, the statutory requirement that the employer advance notification provision. As a matter of law, then, the determine whether a particular percentage of the employees aggregated layoffs did not count as a mass layoff under has experienced an “employment loss.” Under the broad WARN for which affected employees must be notified. We definition of “employment loss” contained in the statute, therefore AFFIRM the judgment of the district court granting layoffs of more than six months (as opposed to layoffs of less summary judgment in the defendant’s favor. than six months) and certain reductions in hours of work both amount to “employment losses” covered by the statute. See 29 U.S.C. § 2101(a)(6). Yet such statutorily defined employment losses typically would not result in a loss of a position (i.e., a reduction in force under the majority’s rule). As a result, under the majority’s rule, an employee on a layoff of less than six months who, during the statutory “mass layoff” period, had his layoff converted to a layoff of more than six months would never be counted as an employee — and he therefore would never experience a countable employment loss for determining a mass layoff — because his loss would never result in the loss of a position, since he already was on layoff. Similarly, an employee who had his work hours reduced more than 50 percent in each month of any six-month period would never be counted because his “employment loss” would never result in the actual elimination of a position. Thus, despite the clear Congressional definitions of the persons counted as employees who experience employment losses under the statute, the majority would render those definitions meaningless.

Nowhere in the statute did Congress define “reduction in 2 See 20 C.F.R. § 639.1(e) (“It is . . . prudent for employers to weigh force” and nowhere in the statute did Congress mention the the desirability of advance notice against the possibility of expensive and elimination of “positions.” Yet the majority would rely on its time-consuming litigation to resolve disputes where notice has not been given.”).

12 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 25 v. RMI Titanium Co. v. RMI Titanium Co.

__________________ including at times serving as temporary recalls to fill positions made available when more senior employees took advantage DISSENT of the company’s voluntary layoff program provided under __________________ the contract. J.A. pp. 370-71. Under the voluntary layoff program, regularly employed but more senior employees DOUGLAS W. HILLMAN, District Judge, dissenting. could, if they wished, elect to accept voluntary layoff for a 30- Despite the apparent ease with which the majority disposes of day period if an employee on temporary layoff was available plaintiffs-appellants’ claims, I am persuaded that plaintiffs- and qualified to fill the position. Id. appellants have presented sufficient evidence to create a genuine issue of material fact whether defendant-appellee As noted, the 27 employees at issue here undisputedly were engaged in a mass layoff as defined by the Worker returned to layoff status during the 90-day period after July Adjustment Retraining and Notification Act (“WARN”), 29 22, 1991, after the more senior employees they had replaced U.S.C. § 2101(a)(3)(B)(i)(I). Consequently, I am satisfied returned to work. The majority holds that these temporarily that the district court’s grant of summary judgment to the recalled employees who were again laid off may not be employer was error, and I respectfully dissent. counted to determine whether a mass layoff occurred because their layoffs, after voluntary recall, did not amount to a loss in I. a position in the workforce, and thus did not constitute a “reduction in force” under the statutory definition.

As the majority observes, many of the facts involved in this case are undisputed. I concur in the overview of the I respectfully suggest that the majority’s reading of the procedural and factual background, as set forth in Section I of statute distorts the plain meaning of the provision when read the majority opinion. However, I am persuaded that the as a whole and that such reading further conflicts with the majority has misstated or failed to acknowledge a wide range applicable regulations. As previously noted, a “mass layoff” of factual considerations during the course of its discussion of is defined in relevant part as a “reduction in force which . . . legal issues under Section II of the opinion. In addition, the is not the result of a plant closing; and . . . results in an majority has failed to explain how its conclusions are employment loss for . . . at least 33 percent of the employees consistent with an entire reading of the statutory definition of . . . .” 29 U.S.C. § 2101(3)(B)(i). The majority, in singling “mass layoff” or with the statute’s implementing regulations. out the words “reduction in force” acknowledges that the Therefore, for the reasons set forth in the remainder of this phrase is not defined either in the statute or legislative history. opinion, I dissent from part II and from the conclusion Nevertheless, the majority concludes based on cases reached by the majority opinion. considering the employee’s evidentiary burden in reduction in force cases alleging age discrimination, that when an II. individual has been replaced, he or she may not be considered to have been eliminated as part of a reduction in force. Citing The purpose of the WARN act is to “ensure that 'workers Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) receive advance notice of plant closures and mass layoffs that (“An employee is not eliminated as part of a work force affect their jobs.’” Kildea v. Electro-Wire Products, Inc., 144 reduction when he or she is replaced after his or her F.3d 400, 405 (6th Cir. 1998) (quoting Marques v. Telles discharge). Applying that reasoning, developed in an entirely separate context for entirely different reasons, the majority 24 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 13 v. RMI Titanium Co. v. RMI Titanium Co.

credibility challenges and inconsistencies in the employer’s Ranch, Inc., 131 F.3d 1331, 1333 (9th Cir. 1997). Under proffered explanation, the majority denies plaintiffs- WARN, appellants their day in court and the opportunity for effective cross-examination of defendant-appellee’s witnesses [a]n employer shall not order a plant closing or mass regarding those inconsistencies. The majority surprisingly layoff until the end of a 60-day period after the employer grants conclusive weight to the employer’s explanation serves written notice of such an order . . . to each simply because it has claimed that the three salaried ETP representative of the affected employees as of the time of employees were laid off for a separate and distinct reason the notice or . . . to each affected employee . . . . from the remaining 87 employees — effectively relieving defendant-appellee of its statutory obligation to prove that the 29 U.S.C. § 2102(a). A mass layoff that involves more than proffered reason for the ETP layoffs was the true reason for 50 employees and fewer than 500 employees is defined as those layoffs.

a reduction in force which . . . is not the result of a plant For all of these reasons, I am persuaded that the evidence is closing and . . . results in an employment loss at the more than sufficient to withstand summary judgment. single site of employment during any 30-day period for Plaintiffs are entitled to a jury determination of the reason for . . . at least 33 percent of the employees (excluding any defendant-appellee’s layoffs of ETP employees. part-time employees) . . . .

B. Voluntarily Recalled Employees 29 U.S.C. § 2101(a)(3)(B)(i)(I). The required employment loss of § 2101(a)(3) is defined as Plaintiffs-appellants also assert that the trial court committed error when it held as a matter of law that an an employment termination, other than a discharge for additional 27 unionized employees, who were laid off during cause, voluntary departure, or retirement, . . . a layoff the relevant time period after having been temporarily exceeding 6 months, or . . . a reduction in hours of work recalled, should not be counted for purposes of determining of more than 50 percent during each month of any 6- whether a mass layoff has occurred. The majority affirms the month period. district court, a decision from which I respectfully dissent.

29 U.S.C. § 2101(a)(6).

The 27 employees at issue initially were temporarily laid off on either October 1, 1990 or November 19, 1990, well Pursuant to the regulations developed under WARN, in before the date of the first layoffs at issue in this case. J.A. determining the number of employees (and thereby the pp. 151-52. Like all temporarily laid off employees, the 27 percentage of employees involved in a layoff) an employer continued to be listed as employees of the company and were may be said to employ, considered regular employees of the company. See Plant Seniority List, J.A. pp. 215-16; Bennett dep., J.A. p. 373. [w]orkers on temporary layoff or on leave who have a reasonable expectation of recall are counted as As temporarily laid off employees, the 27 employees were employees. An employee has a “reasonable expectation required to report their availability for work. See Notices of of recall” when he/she understands, through notification Layoff, J.A. pp. 147-48. They were eligible to be recalled by or through industry practice, that his/her employment the company when the company deemed it necessary, with the employer has been temporarily interrupted and 14 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 23 v. RMI Titanium Co. v. RMI Titanium Co.

that he/she will be recalled to the same or to a similar salaried work force reductions before October 3, 1991 (which job. included ETP layoffs) had been made for a single reason —

to cut costs.

20 C.F.R. § 639.3(a)(ii).

In sum, plaintiffs-appellants provided three separate types As the majority observes, the regulations set a “snapshot” of challenges to defendant-appellee’s explanation for the ETP date upon which the calculations of numbers of employees layoffs: (1) the statutory presumption that temporally and numbers of employees experiencing an “employment connected layoffs have the same cause; (2) inconsistencies loss” shall be calculated. See 20 C.F.R. § 639.5(a)(2). That between defendant-appellee’s conduct and its proffered date is the date 60 days preceding the first layoffs triggering explanation, which cast substantial doubt on the credibility of the duty to provide notice. the explanation; and (3) testimony in which defendant-

appellee’s vice-president for personnel failed to distinguish In the instant case, the parties agree that the relevant the ETP layoffs in circumstances in which one reasonably “snapshot” notice date is May 23, 1991. The parties also could conclude he would have claimed such a distinction if it stipulate (for purposes of this appeal) that RMI employed 269 were true. In ignoring the presumption under the statute as employees on the “snapshot” date. As a result, for purposes well as the circumstantial evidence tending to undermine the of this appeal, it is undisputed that 89 employees must have employer’s explanation, the majority engages in a restrictive experienced a countable employment loss during the relevant reading of the statute to the benefit of the employer and to the period in order to trigger the notice requirement of the statute. obvious detriment of employees. Such a restrictive reading is The district court found and the parties have not appealed that particularly inappropriate where, as here, the statute is at least 87 employees experienced a countable employment remedial in nature and must be interpreted in favor of the loss during the relevant statutory period. class it is designed to benefit. See, e.g., United Paperworkers Int’l Union v. Alden Corrugated Container Corp., 901 F.

At issue, therefore, is whether at least two additional Supp. 426, 439 (D. Mass. 1995); Washington v. Aircap Indus. employees may be considered to have experienced a Corp., 831 F. Supp. 1292, 1295 (D.S.C. 1993). countable employment loss during the relevant period. If so, then all agree the provisions of WARN are applicable. The court also disregards the Supreme Court’s mandate on summary judgment:

Plaintiffs-appellants contend here, as they did below, that two additional groups of employees, both of which include Credibility determinations, the weighing of evidence, and more than two employees, must be counted in determining the the drawing of legitimate inferences from the facts are number of affected employees. First, plaintiffs-appellants jury functions, not those of a judge, whether he is ruling assert that three additional salaried employees in the on a motion for summary judgment or for a directed Electrolytic Titanium Process (“ETP”) Department, a research verdict. The evidence of the nonmovant is to be and development project, also were laid off during the believed, and all justifiable inferences are to be drawn in relevant period for the same reason as the other 87 employees. his favor. Defendant-appellee contends and the majority holds that, as a matter of law, the three ETP employees were laid off for a Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) separate and distinct reason and therefore may not be (emphasis added). In declining to consider the reasonable considered to be part of the mass layoff.

22 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 15 v. RMI Titanium Co. v. RMI Titanium Co.

asked directly and separately about the treatment of the Second, plaintiffs-appellants contend that 27 non-salaried salaried ETP employees. employees, who already were on temporary layoff during the period preceding the layoffs beginning July 22, 1991, also To the contrary, Jensen’s testimony provides some credible should be counted. These employees were on temporary evidence that defendant-appellee’s explanation is not worthy layoff, but had been recalled as part of a voluntary layoff of belief. Jensen testified about the explanation for salaried program provided in the collective bargaining agreement. workforce layoffs that he gave to union officials shortly after Under the voluntary layoff program, more senior employees the ETP layoffs, when he allegedly referred to “the large force could voluntarily take layoff status for 30-day periods, during reductions . . . made to our salaried workforce.” In his which periods they would be replaced by previously laid off, presentation in October 1991 and at his deposition, Jensen, a more junior employees. At the end of the 30-day recall vice-president of defendant company, made no attempt to periods, these 27 voluntarily recalled employees were again distinguish any one group of salaried employee layoffs from laid off when the senior employees returned to work. any other. A failure by RMI’s vice-president for personnel to However, when laid off at this time (on either August 5, 1991 distinguish the ETP layoffs — which RMI now contends or September 2, 1991), these employees were laid off were made for a different reason — is itself suggestive that no permanently. Plaintiffs therefore assert that these 27 different reason did in fact exist. Cf. Fed. R. Evid. 801(d)(2) employees experienced an employment loss within the & Advisory Committee Notes (including as statements the meaning of WARN that was caused by the same reason as the failure to speak under circumstances in which a reasonable other 87 layoffs, i.e. economic downturn. Defendant-appellee person would do so). asserts and the majority holds that, as a matter of law, the 27 non-salaried employees may not be considered to have been Moreover, Jensen’s remaining answers, while susceptible part of a reduction in force and therefore may not be counted. of more than one interpretation, may be read as an unambiguous response to plaintiffs’ questions regarding the I disagree with the majority’s conclusion regarding both reasons for the salaried work force layoffs that had been made groups of employees. before October 3, 1991:

A. ETP Employees

Q Did you know the reasons for the large work force reductions in the salaried work force that you’d Defendant-appellee asserts that the three ETP employees already made? laid off on September 14, 1991, were laid off for a separate and distinct reason other than the economic downturn causing A Certainly, it cut costs. the layoffs of the other 87 employees. Defendant-appellee contends therefore that as a matter of law the three ETP Q Is it because of decreased sales and decreased profits employees may not be counted in determining whether a mass during this time frame? layoff has occurred.

A RMI was very definitely losing money at that time, In determining whether a mass layoff has occurred, the yes.” statute mandates the aggregation of all layoffs occurring within a 90-day period, unless the employer is able to prove J.A. p. 348 (emphasis added). When read together, Jensen’s both that the cause of a particular layoff is separate and explanations may reasonably be interpreted to mean that all 16 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 21 v. RMI Titanium Co. v. RMI Titanium Co.

distinct and that the employer’s actions are not taken to avoid Jensen testified that at the time of his meeting with union the requirements of WARN: representatives in early October, he had been questioned about both the company’s treatment of and its plans for the [I]n determining whether a plant closing or mass layoff salaried workforce. Jensen testified that at this meeting he has occurred or will occur, employment losses for 2 or had displayed an exhibit on the overhead projector showing more groups at a single site of employment, each of workforce reductions to salaried employees. The relevant which is less than the minimum number of employees portion of Jensen’s deposition testimony discussing the specified in section 2101(a)(2) or (3) of this title but October 1991 meeting is somewhat broader than the colloquy which in the aggregate exceed that minimum number, quoted by the majority: and which occur within any 90-day period shall be considered to be a plant closing or mass layoff unless the A. We — during the course of our discussion on employer demonstrates that the employment losses are October 3rd, somebody from the union . . . raised the the result of separate and distinct actions and causes and question, well, what was going to be done with the are not an attempt by the employer to evade the salaried people? In response to such questions, such requirements of this chapter. comments, I used an overhead, an exhibit showing the large force reductions that had taken place —

29 U.S.C. § 2102(d) (emphasis added). In other words, the that we had made in our salaried work force. statute creates a rebuttable presumption that multiple layoffs occurring within a 90-day period are the result of the same Q You’d already made? cause. Moreover, while the statute does not specify the meaning of the phrase “separate and distinct actions and A Already made. Correct. causes,” courts have concluded that “layoffs occasioned by a continuing and accelerating economic demise are not the Q Do you know what the reasons were for that large result of separate and distinct causes.” United Paperworkers force reductions in the salaried work force that Int’l Union v. Alden Corrugated Container Corp., 901 F. you’d already made? Supp. 426, 435-36 (D. Mass. 1995).

A Certainly, it cut costs.

In the instant case, the employer argues that the ETP department was jointly funded by the employer and an Italian Q Is it because of decreased sales and decreased profits partner company, Ginatta Torino Titanium (“GTT”). during this time frame? Defendant-appellee asserts that the three ETP employees were laid off as a result of GTT’s failure to pay its share of the A RMI was very definitely losing money at that time, costs of operating the department. In support of its asserted yes. independent reason for layoff of the ETP employees, J.A. p. 348 (emphasis added). The majority concludes that defendant-appellee proffered the affidavit of Jerome Bennett, the quoted language is insufficient to create a genuine issue of stating that the three ETP employees were laid off on fact as to whether the salaried ETP employees were laid off September 14, 1991, “due to a funding problem involving an for the same or different reasons. Specifically, the majority outside company. As reflected in the RMI documents concludes that Jensen’s testimony would only undermine attached as Exhibits G and H.” J.A. p. 205 ¶ 22. The defendant-appellee’s proffered explanation if Jensen had been 20 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 17 v. RMI Titanium Co. v. RMI Titanium Co.

that the funding issues1 with GTT were either resolved or referenced Exhibit H consists of a letter dated September 5, acquiesced to by RMI. 1991 from RMI’s Vice-President, General Counsel and Secretary, John F. Hornbostel, Jr., to a representative of GTT Further, contrary to what the majority states, defendant- stating appellee did not lay off the three employees on “the following Monday” after the threatened shutdown date, September 6, This is to advise you that in accordance with the 1991. Instead, the company did not lay off any employees agreement reached between RMI and GTT in your until September 14, 1991, nine days after the letter was meeting with Fred Gieg on August 28, 1991, here in written and eight days after the supposed shutdown. Bennett Niles and further in a conversation that Fred had with Aff., J.A. p. 205 ¶ 22 (stating that employees were laid off on you yesterday, it was definitely agreed that unless RMI September 14, 1991). received by Thursday, September 5, 1991, the amount of $382,796.94, which is payment for May and June As a result, a reasonable jury would be entitled to conclude expenses, that RMI, upon such non-receipt, would shut that the stated explanation by the employer that the three down the MX-4 Facility at RMI’s Metals Plant in employees were laid off for reasons other than economic Ashtabula, Ohio, tomorrow, Friday, September 6, 1991. reasons was not credible because the stated reason was inconsistent with what the company actually did. See Since we haven’t yet received the money as promised by Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) you, we will proceed with the shutdown. (credibility determinations and the drawing of legitimate inferences is for the jury, not the court). The mere fact that J.A. p. 247. RMI threatened a partner in order to coerce payment of monies owed does not establish that RMI’s actions short of On the basis of the affidavit and the letter, both the district the threat (that is, laying off three employees instead of court and the majority hold that, as a matter of law, the three shutting down the project) were taken for the threatened ETP employees were laid off for a different and distinct reason. The jury therefore would be entitled to infer from the reason than the other 87 employees, who were laid off circumstantial evidence alone that the proffered explanation because of the economic conditions in the company and the was not the true reason for the layoffs and that defendant- market. I disagree. appellee had failed to prove that the presumption under the statute was overcome. As previously noted, the statute creates a presumption that multiple layoffs occurring during a 90-day period have the Moreover, to further bolster their claim of pretext, same cause and should be aggregated for purposes of plaintiffs-appellants produced the deposition testimony of determining whether a mass layoff has occurred. See 29 Warren Jensen, appellee’s vice-president of personnel. U.S.C. § 2102(d) (“employment losses for 2 or more groups . . . which occur within any 90-day period shall be considered to be . . . a mass layoff unless the employer demonstrates that 1 the employment losses are the result of separate and distinct It is noteworthy that the record contains no assertion by the actions and causes and are not an attempt by the employer to company that the monies owed by GTT were never paid. See Bennett dep., J.A. pp. 362-63 (stating only that project experienced “intermittent evade the requirements of this chapter.”) (emphasis added). shortages of money based upon the commitment that the Italians had See also H.R. Conf. Rep. No. 100-576, p. 1050 (1988), made to fund some portion of it.” (Emphasis added.) reprinted in 1988 U.S.C.C.A.N. 2078, 2083 (using words 18 OCAW, Local 7-629, et al. No. 98-4336 No. 98-4336 OCAW, Local 7-629, et al. 19 v. RMI Titanium Co. v. RMI Titanium Co.

“presumptively” and “presumption”). The employer is used to challenge credibility in other contexts. Id. (“It is the permitted by statute to prove that a separate cause occasioned rare situation when direct evidence of discrimination is certain layoffs. The burden of proof, however, is placed readily available, thus victims of employment discrimination squarely on the employer. Id. The employer’s explanation, are permitted to establish their cases through inferential and therefore, is nothing more than an alternative explanation circumstantial proof.”). which, if challenged as to credibility, creates a typical fact question for the jury to resolve. If the jury were to find the Further, plaintiffs’ burden of proving motive under WARN explanation not to be credible, defendant-appellee would have unquestionably is lower than that burden under federal failed in meeting its burden of proof and plaintiffs-appellants discrimination statutes. Although the means for would be entitled to aggregate the ETP layoffs. demonstrating pretext under the two models may be somewhat parallel, the burden of proving motive under As a result, an employer’s claimed alternative reason is not WARN is placed on the employer, whereas under Title VII, entitled to presumptive truthfulness. At best, the employer’s the burden of proof remains always on plaintiffs. See 29 proffered explanation may be given no more weight than is U.S.C. § 2102(d). As a result, under WARN the employer given the “legitimate nondiscriminatory explanation” an bears the burden of demonstrating that the proffered employer is required to articulate in response to a prima facie explanation is not pretextual. case of discrimination under Title VII, 42 U.S.C. § 2000(e). See, e.g. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d Here, plaintiffs-appellants have raised substantial 1078, 1084 (6th Cir.1994) (applying circumstantial evidence credibility challenges to the employer’s stated reason for the test for proving discrimination, including employer’s burden layoffs of the ETP employees. First, the explanation given by to articulate nondiscriminatory explanation, and discussing the employer for its actions is inconsistent with its own manner in which plaintiff may prove the explanation is conduct. In the September 5, 1991 letter to GTT, defendantpretextual ). A plaintiff may show pretext by producing appellee threatened to shut down the operation of the entire "sufficient evidence from which the jury may reasonably ETP program on September 6, 1991 unless the GTT reject the employer's explanation." Id. at 1083. As the courts immediately paid the monies owed. Defendant-appellee, repeatedly have observed, in Title VII, ADEA and ADA however, did not shut down the ETP program on September actions, plaintiffs-appellants are not required to introduce 6, 1999 as threatened. Instead, the company laid off only direct evidence to challenge the credibility of any evidence, three of the department’s 13 employees, a pattern more including the employer’s explanation. Id. at 1083 (stating that consistent with the overall economic downsizing in the plant parties need not show directly that the illegal reason was the than with the threatened shutdown of a department. In actual reason, but instead may challenge the credibility of the addition, in contrast with the representations contained in the explanation, thereby creating inference that real reason was an letter that the project would be shut down on September 6, impermissible one). Direct evidence of illegal purpose 1991, the company did not shut down the program until generally is not available. See Kline v. Tenn. Valley Auth., February 1992, at approximately the same time it closed the 128 F.3d 337, 348 (6th Cir. 1997) (ADEA case) (“Rarely can entire plant. Bennett Dep., J.A. pp. 363-64 (project closed at discriminatory intent be ascertained through direct evidence about the same time as the plant). This action is in direct because rarely is such evidence available.”). Instead, contravention of the threatened shutdown date and suggests plaintiffs are entitled to dispute defendant’s explanations with the sort of circumstantial evidence and reasonable inferences