Likes v. DHL Express (USA), Inc., 14–13076.

• Decision Date: 29 May 2015
• Docket Number: No. 14–13076.,14–13076.
• Parties: Darriest LIKES, and all other similarly situated persons, Plaintiff–Appellant, v. DHL EXPRESS (USA), INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

787 F.3d 1096

Darriest LIKES, and all other similarly situated persons, Plaintiff–Appellant

v.DHL EXPRESS (USA), INC., Defendant–Appellee.

No. 14–13076.

United States Court of Appeals, Eleventh Circuit.

May 29, 2015.

Lee David Winston, Roderick T. Cooks, Winston Cooks, LLC, Birmingham, AL, for Plaintiff–Appellant.

Shannon L. Miller, Jackson Lewis, PC, Birmingham, AL, Devand Anthony Sukhdeo, Jackson Lewis, PC, Miami, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:10–cv–02989–VEH.

Before ED CARNES, Chief Judge, JILL PRYOR and HIGGINBOTHAM,^* Circuit Judges.

Opinion

PER CURIAM:

In this putative class action, plaintiff Darriest Likes¹ appeals the district court's entry of summary judgment in favor of DHL. Mr. Likes alleges that DHL violated the Worker Adjustment and Retraining Notification Act (“WARN Act”) by failing to provide 60 days' notice before Mr. Likes was laid off from his job at DHL's Birmingham delivery facility. After careful review, and with the benefit of oral argument, we affirm.

I.

Until 2009, DHL maintained a delivery network in the United States consisting of approximately 300 contractors that employed drivers who delivered packages for DHL. DHL's agreements with these contractors—including the three companies working out of its Birmingham delivery facility, Sky Land Express, Territory Reps, Inc., and Wood Airfreight, Inc.—expressly did not prohibit the contractors from delivering packages for other companies. However, DHL's former director of independent contractors could recall only two instances nationally where contractors actually delivered for another company.² In any event, each of the Birmingham facility contractors received 100 percent of their business from DHL.

In 2008, DHL began to phase out its U.S. domestic delivery program and entered into Termination and Transition Agreements (“TTA”) with each of its contractors. In the TTA with Mr. Likes's employer,³ contractor Wood Airfreight, DHL agreed to provide retention payments to the contractor's employees who worked until the TTA's termination date or until the contractor no longer needed the employee's services as delivery volume dropped. Mr. Likes was laid off in December 2008.

Mr. Likes filed this lawsuit as a class action, alleging that DHL violated the WARN Act by failing to provide 60 days' notice of impending layoffs. The district court denied Mr. Likes's request to certify the case as a class action, and we denied his petition for interlocutory review of that ruling. The district court then granted summary judgment to DHL. The court assumed, without deciding, that (1) neither res judicata nor collateral estoppel based on a previous lawsuit between the parties applied, and (2) Mr. Likes could show DHL was his employer. Even with those assumptions, the court held that Mr. Likes failed to demonstrate the existence of a genuine issue of material fact with respect to his WARN Act claim because he could not show that 50 or more employees were laid off from a single work site. Mr. Likes appeals both the class action determination and the summary judgment ruling.

II.

We review summary judgment decisions de novo and “draw all inferences and review all evidence in the light most favorable to the nonmoving party.” Airtran Airways, Inc. v. Elem, 767 F.3d 1192, 1196 (11th Cir.2014). Summary judgment is appropriate when 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). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505 (internal citations omitted).

III.

The WARN Act requires that “[a]n employer shall not order a plant closing or mass layoff” without providing 60 days' notice to workers. 29 U.S.C. § 2102(a). The parties agree that DHL did not provide the requisite notice of termination. Thus, to establish a WARN Act claim, Mr. Likes must demonstrate that he was (1) an employee of a qualified employer and (2) the subject of a mass layoff.

The WARN Act defines an “employer” as “any business enterprise that employs ... 100 or more employees.” Id. § 2101(a)(1). The Department of Labor's (“DOL”) regulations implementing the WARN Act state that an independent contractor should be considered either a separate employer or a joint employer with a contracting company “depending upon the degree of their independence” from the contracting company. 20 C.F.R. § 639.3(a)(2). The regulations provide a list of five factors drawn from “existing legal rules” to help determine whether an independent contractor is truly independent or not: “(i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations” between the independent contractor and contracting company. Id.

Wood Airfreight, Mr. Likes' direct employer, did not have 100 or more employees and therefore was not subject to WARN Act liability. Mr. Likes argues that DHL, which employed enough people to qualify as an “employer” for purposes of the WARN Act, was Mr. Likes' joint employer under the DOL regulations.

DHL argues that Mr. Likes is barred by collateral estoppel from arguing that DHL is his joint employer. In 2008, Mr. Likes filed a separate lawsuit against DHL, alleging violations of the Fair Labor Standards Act (“FLSA”). In that case, the district court held that Mr. Likes could not show that DHL was his joint employer for purposes of FLSA liability. Darriest Likes v. DHL, No. 2:08–cv–00428–AKK, 2012 WL 8499732, ECF No. 112 at 25 (N.D.Ala. Mar. 7, 2012) [hereinafter Likes I ]. DHL argues that the district court's holding in Likes I precludes Mr. Likes from arguing that DHL was his employer for purposes of liability under the WARN Act.⁴ Alternatively, DHL argues that Wood Airfreight was Mr. Likes's sole employer under the DOL regulations.

We need not decide whether collateral estoppel applies or whether DHL employed Mr. Likes because we agree with the district court that, even assuming DHL qualified as his employer, Mr. Likes cannot show he was the subject of a mass layoff under the WARN Act.

IV.

As relevant here, the WARN Act defines a mass layoff as a reduction in force that:

(B) results in an employment loss at the single site of employment during any 30–day period for—

(i)(I) at least 33 percent of the employees (excluding any part-time employees); and

(II) at least 50 employees (excluding any part-time employees) 29 U.S.C. § 2101(a)(3)(B).

It is undisputed that Wood Airfreight laid off fewer than 50 employees, so its reduction in work force alone cannot result in WARN Act liability. Mr. Likes argues that the DHL Birmingham facility was a “single site of employment” such that the layoffs from all three contractors that used the facility should be aggregated; together, the three companies laid off more than 50 employees.

DOL regulations explain that a “single site of employment can refer to either a single location or a group of contiguous locations.” 20 C.F.R. § 639.3(i)(1). “There may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within such a building.”Id. § 639.3(i)(2). And “[c]ontiguous buildings owned by the same employer which have separate management, produce different products, and have separate workforces are considered separate single sites of employment.” Id. § 639.3(i)(5).

In holding that the Birmingham facility constituted multiple sites of employment, the district court relied on International Union, United Mine Workers v. Jim Walter Resources, 6 F.3d 722 (11th Cir.1993), the only case in which we have interpreted 20 C.F.R. § 639.3(i). In...