United States District Court, W.D. Virginia, Big Stone Gap Division
MICHAEL W. SULLIVAN, ET AL., Plaintiffs,
NINE MILE MINING, INC., Defendant.
Paul G. Beers and Andrea Hopkins, Glenn, Feldmann, Darby, & Goodlatte, Roanoke, Virginia, and Hugh F. O'Donnell, Client Centered Legal Services of Southwest Virginia, Norton, Virginia, for Plaintiffs.
Terry G. Kilgore, Gate City, Virginia, and Dustin M. Deane, James C. Justice Companies, Inc., and Affiliates, Roanoke, Virginia, for Defendant.
OPINION AND ORDER
JAMES P. JONES, District Judge.
In this class action arising under the Worker Adjustment and Retraining Notification Act (the "WARN Act"), the parties have filed cross motions for summary judgment. For the following reasons, I will grant the plaintiffs' motion and deny the defendant's motion.
The following facts taken from the summary judgment record are undisputed.
Nine Mile Mining, Inc. ("Nine Mile") operated two underground coal mines at a single site in Wise County, Virginia. On May 17, 2013, Nine Mile terminated seventy-three employees stationed at one of those mines. The employees were given no advance notice.
The members of the class, who were among the miners laid off on that date, allege a violation of the WARN Act and seek back pay and benefits to the extent permitted by 29 U.S.C. § 2104. Resolution of the cross motions for summary judgment turns solely on whether the defendant is a covered employer under the WARN Act. The defendant concedes that if it is a covered employer, then it violated the WARN Act's notice requirement.
The motions have been briefed and orally argued. They are ripe for decision.
Summary judgment is appropriate when the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Permitting certain narrow exceptions, the WARN Act generally mandates that covered employers provide sixty days' notice in advance of a plant closing or mass layoff. 29 U.S.C. § 2102(a). The Act defines an "employer" as "any business enterprise that employs - (A) 100 or more employees, excluding part-time employees; or (B) 100 or more employees [including part-time employees] who in the aggregate work at least 4, 000 hours per week (exclusive of hours of overtime)." Id. § 2101(a)(1). Coverage under subsection (B) is at issue here,  and the plaintiffs bear the burden of proof to establish the defendant's coverage as an employer under the WARN Act. See Hooper v. Polychrome, Inc., 916 F.Supp. 1111, 1118 (D. Kan. 1996) ("[P]laintiff bears the burden of proof to show that the threshold requirements for application of the WARN Act have been met."); Johnson v. TeleSpectrum Worldwide, Inc., 61 F.Supp.2d 116, 121 (D. Del. 1999) ("Plaintiffs have the burden to prove their prima facie case.").
At the center of the dispute is the appropriate method for determining the number of employees Nine Mile had for purposes of coverage. The Department of Labor has provided the following guidance for making a determination of coverage:
The point in time at which the number of employees is to be measured for the purpose of determining coverage is the date the first notice is required to be given. If this "snapshot" of the number of employees employed on that date is clearly unrepresentative of the ordinary or average employment level, then a more representative number can be used to determine coverage. Examples of unrepresentative employment levels include cases when the level is near the peak or trough of an employment cycle or when large upward or downward shifts in the number of employees occur around the time notice is to be given. A more representative number may be an average number of employees over a recent period of time or the number of employees on an ...