Bledsoe v. Emery Worldwide Airlines Inc.

• Decision Date: 09 March 2011
• Docket Number: No. 09–4346.,09–4346.
• Citation: Bledsoe v. Emery Worldwide Airlines Inc., 635 F.3d 836 (6th Cir. 2011)
• Parties: David BLEDSOE; Gary Plaster; Rick Bridges; David Ungemach; Steven E. Dolski, Plaintiffs–Appellants,v.EMERY WORLDWIDE AIRLINES, INC.; CNF Corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

635 F.3d 836

160 Lab.Cas. P 10,347

31 IER Cases 1409

David BLEDSOE; Gary Plaster; Rick Bridges; David Ungemach; Steven E. Dolski, Plaintiffs–Appellants,

v.EMERY WORLDWIDE AIRLINES, INC.; CNF Corporation, Defendants–Appellees.

No. 09–4346.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2011.Decided and Filed: Feb. 16, 2011.Rehearing Denied March 9, 2011.

ARGUED:David G. Torchia, Tobias, Kraus & Torchia, Cincinnati, Ohio, for Appellants.Thomas H. Barnard, Jr., Ogletree Deakins Nash Smoak & Stewart, P.C., Cleveland, Ohio, for Appellees.ON BRIEF:David G. Torchia, Tobias, Kraus & Torchia, Cincinnati, Ohio, for Appellants.Thomas H. Barnard, Jr., Michelle R. Arendt, Ogletree Deakins Nash Smoak & Stewart, P.C., Cleveland, Ohio, for Appellees.Before: GUY, BOGGS, and GIBBONS, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiffs, representing a class of former employees of Emery Worldwide Airlines, Inc.(EWA), appeal from the entry of judgment in favor of defendants EWA and its parent company CNF Corporation on claims brought under the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act), 29 U.S.C. §§ 2101–2109.Plaintiffs' principal claim is that the district court erred in finding, at the conclusion of a four-day bench trial, that plaintiffs were not entitled to notice under the WARN Act because they had no “reasonable expectation of recall” from layoff at the time that EWA permanently ceased operations.Plaintiffs also urge us to reverse the district court's determination that there is no right to a jury trial for employee claims brought under the WARN Act.Lastly, plaintiffs challenge the district court's pretrial decision excluding from the class the laid-off employees of two nearby EWA facilities because those facilities could not be viewed as part of a “single site of employment” with EWA's Hub.After review of the record and consideration of the arguments presented on appeal, we affirm.¹

I.

EWA, a wholly owned subsidiary of CNF, operated as a commercial air freight carrier primarily from its “Hub” facility at the Dayton International Airport in Vandalia, Ohio.²Operating under a Federal Aviation Administration (FAA) certificate, EWA came under greater oversight following inspections in late 1999 and in the wake of a fatal accident involving an EWA plane in February 2000.The district court's written findings of fact outline the communications between the FAA and EWA beginning in early 2001, including: the serious possibility that EWA could lose its flight certificate; the actions taken by EWA to address safety issues through the spring and into the summer of 2001; and the events that followed EWA's suspension of flight operations at the insistence of the FAA in August 2001.

It was the grounding of EWA's planes in August 2001 that resulted in the temporary layoff of approximately 575 EWA employees, including flight crew members, between August 13 and 15, 2001.The first letters EWA sent to the laid-off employees anticipated that, if EWA was able to resolve issues with the FAA, the layoffs should last less than six months.Although EWA entered into a final settlement agreement with the FAA on September 18, 2001, the FAA imposed numerous additional requirements on EWA during a subsequent meeting on September 27, 2001.The district court found that these “increases in requirements were tantamount to requiring EWA to complete certification as if it were a new carrier entering the market.”Bledsoe v. Emery Worldwide Airlines, Inc.,No. 3:02cv069, 2009 WL 3127740, at *3(S.D.OhioSept. 28, 2009)(unpublished).EWA protested to the FAA that the additional requirements were significantly beyond the scope of their settlement, to no avail.As will be discussed more fully below, letters updating the laid-off employees about the situation were sent in both early October and early November 2001.

Despite continued efforts to address FAA concerns, EWA's management ultimately concluded that it would not succeed in getting FAA approval to resume operations in a timely manner.On December 4, 2001, CNF decided to permanently close EWA “based on the economic considerations of getting the company back in operating status and because of the continuing uncertainty associated with the FAA authorizing EWA's future flight operations.”Id. at *4.The next day, December 5, 2001, EWA notified the roughly 90 remaining active employees of a 60–day layoff, with pay, pending their termination effective February 6, 2002.The previously laid-off employees, on the other hand, were notified that their layoffs were permanent without affording them advance notice or pay in lieu thereof.

The named plaintiffs, David Bledsoe, Gary Plaster, Rick Bridges, David Ungemach, and Steven Dolski, filed this action in February 2002, asserting violations of the WARN Act on behalf of themselves and other laid-off employees.In March 2003, the district court conditionally certified a class of plaintiffs consisting of:

All persons, of about 575 in number, who were employed by [EWA] at its Vandalia, Ohio facility as of August 13, 2001; who were notified by [EWA] between August 13 and 15, 2001, of their subsequent layoffs; who were notified by [EWA] on December 5, 2001, that their layoffs were permanent; and who did not receive 60 days' notice or 60 days' pay in lieu thereof for the mass layoff that began on August 14, 2001, and which was deemed permanent on December 5, 2001.

Bledsoe v. Emery Worldwide Airlines, Inc.,258 F.Supp.2d 780, 803(S.D.Ohio2003).The certification was conditioned on a later determination as to the precise scope of the class, including the district court's determination that the employees of EWA's separate Hangar A and Webster Street facilities should not be included in the class.

With the class defined, and having granted the defendants' motion to strikethe plaintiffs' jury demand, seeBledsoe,258 F.Supp.2d at 788–99, the district court conducted a bench trial and issued its written decision setting forth its findings of facts and conclusions of law.Notably, the district court found, as plaintiffs had conceded at trial, that the layoffs in August 2001 did not constitute an employment loss upon which the WARN Act claims could be predicated.Then, finding that the plaintiffs no longer had “reasonable expectation of recall” at the time of the closure in December 2001, the district court concluded that plaintiffs were not “affected employees” entitled to notice under the WARN Act.Without reaching other contested issues, the district court concluded that neither EWA nor CNF could be liable to plaintiffs under the WARN Act.Judgment was entered accordingly, and this appeal followed.³

II.

The WARN Act, with some exceptions not at issue here, forbids an employer of 100 or more full-time employees to “order a plant closing or mass layoff until the end of a 60–day period after the employer serves written notice of such an order.”29 U.S.C. § 2102(a).The notice requirement depends on there being a sufficiently large plant closing or mass layoff at a “single site of employment,”id. at § 2101(a)(1)-(3), and the employer must notify, among others, “each affected employee,”id. at § 2102(a)(1).An employer who fails to give the required notice, or pay in lieu thereof, may be liable for civil penalties to the local government and for specified damages to affected employees.Id. at § 2104.⁴

A.Jury Demand

Whether there is a right to a trial by jury in an action seeking to enforce liability for back pay and benefits under the WARN Act is a question squarely addressed by only a few district courts, which have applied the same general principles but reached divergent conclusions.CompareBentley v. Arlee Home Fashions, Inc.,861 F.Supp. 65(E.D.Ark.1994)(finding a right to jury trial), with Bledsoe,258 F.Supp.2d at 788–99(finding no right to jury trial), and Loehrer v. McDonnell Douglas Corp.,No. 91–1747, 1992 U.S. Dist. LEXIS 22555(E.D.Mo.Oct. 5, 1992)(same).For the reasons that follow, we agree with the district court in this case and affirm.⁵

The Seventh Amendment of the United States Constitution provides that “[i]n Suits at common law, ... the right of trial by jury shall be preserved.”U.S. Const. amend. VII.The Supreme Court has explained that the phrase “suits at common law” means “ ‘not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.’ ”Curtis v. Loether,415 U.S. 189, 193, 94 S.Ct. 1005, 39 L.Ed.2d 260(1974)(citation omitted).Dispelling any lingering doubts about its application to statutory causes of action, the Court in Curtis held that: “The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.”Id. at 194, 94 S.Ct. 1005.

At the outset, we find that the WARN Act may not be construed to avoid the constitutional question entirely.Curtis,415 U.S. at 192 n. 6, 94 S.Ct. 1005(recognizing “the ‘cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question may be avoided’ ”);see alsoChauffeurs, Teamsters and Helpers, Local No. 391 v. Terry,494 U.S. 558, 565 n. 3, 110 S.Ct. 1339, 108 L.Ed.2d 519(1990).The WARN Act neither speaks directly to the question of whether there is a right to jury trial nor otherwise makes clear an intention in this regard.Cf.Lorillard v. Pons,434 U.S. 575, 583, 98 S.Ct. 866, 55 L.Ed.2d 40(1978)(finding a statutory right to jury trial on claims for lost wages and benefits under the ADEA).Nor does the legislative history traced by the district court, Bl...