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No. 09-36110
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD COLLINS, et al.
Plaintiffs/Appel lants,
v.
GEE WEST SEATTLE, LLC,
Defendant/Appellee.
Appeal from the United States District Court
Western District of Washington
The Honorable Marsha J. Pechman
No. C08-0238 MJP
APPELLEE 'S BRIEF
Richard P. Lentini, WSBA # 18086
Ryan, Swanson & Cleveland, PLLC
1201 Third Avenue, Suite 3400
Seattle, WA 98101-3034
(206) 464-4224
Attorneys for Appellee
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CORPORATE DISCLOSURE STATEMENT
Appellee Gee West Seattle, LLC has no parent corporation, and no publiclyheld corporation owns 10% or more of its equity units.
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TABLE OF CONTENTS
Page
1. JURISDICTIONAL STATEMENT ..................................................................1
II. ISSUES PRESENTED FOR REVIEW ............................................................1
III. STATEMENT OF THE CASE .......................................................................1
IV. STATEMENT OF FACTS ............................................................................. 2
A. Background ..................................................................................................2
B. Notice of possible closure and request for Employees ' cooperation .......... 3
C. Mass exodus of Employees .......................................................................... 4
D. Closure of stores .......................................................................................... 5
E. The reasons the Employees abandoned their jobs are unknown ................. 5
F. Gee West Seattle was not required to give 60 days' notice of a
possible closure ............................................................................................ 6
V. SUMMARY OF ARGUMENT ....................................................................... 6
VI. ARGUMENT .................................................................................................. 7
A. Employees' WARN Act claims were properly dismissed as a matter
of law because fewer than 50 employees suffered an employment loss
after all but 30 employees abandoned their jobs ......................................... 7
1. To make a prima facie case under the WARN Act, the Employees
must establish that 50 or more employees suffered an
"employment loss." ................................................................................. 7
2. The WARN Act provides that employees who voluntarily depart
their jobs after receiving notice of a closure do not suffer an
«employment loss." ................................................................................. 8
3. The Gee West Seattle employees who abandoned their jobs prior to
closure voluntarily departed and did not suffer an employment
loss .......................................................................................................... 9
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TABLE OF CONTENTS
(continued)
Page
B. The WARN Act explicitly and unambiguously provides that a
voluntary departure cannot constitute an employment loss ...................... 10
C. The reasons the Employees voluntarily departed are immaterial ..............12
D. The length of notice of the possible closure is immaterial ........................13
E. Employees provided no evidence that those who abandoned their jobs
were constructively discharged ..................................................................16
F. Equitable estoppel and proximate cause arguments are inapplicable....... 19
G. If the Court were to reverse the district court's judgment that all but
approximately 30 of the Employees "voluntarily departed," further
discovery is necessary to determine the reasons Employees abandoned
their jobs and whether or not they voluntarily departed and therefore
did not suffer an employment loss ............................................................. 21
VII. CONCLUSION ........................................................................................... 22
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TABLE OF AUTHORITIES
Page
FEDERAL CASES
17,18
Amatuzio v. Gandalf Sys. Corp, 994 F. Supp . 253 (D . N.J. 1998 ) ................ 17,
Castro v. Chicago Housing Authority, 360 F.3d 721 (7th Cir. 2004) ................. 14
Guinn v. Timco Aviation Services, Inc., 317 F. Supp . 2d 888 (W.D. Ark.
2004 ) ...................................................................................................... 9, 14
Johnson v. Telespectrum Worldwide Inc., 61 F . Supp .2d 116, 121 (D.
Del. 1999 ) .................................................................................................... 7
Knappenberger v. City ofPhoenix, 566 F .3d 936 (9`' Cir. 2009 ) ........................ 18
Long v. Dunlop Sports Group Americas, Inc., 506 F . 3d 299 , 302 (4th
Cir. 2007 ) ......................................................................................... 8, 11, 17
Perrin v. U.S., 444 U.S. 37 , 42 (1979) ................................................................... 8
Rifkin v. McDonnell Douglass Corp., 78 F.3d 1277, 1283 (8th Cir.
1996) ............................................................................................................9
FEDERAL STATUTES
1,7
29 U.S.C. § 2101(a)(6 )(A) .................................................................................1,
29 U.S.C. § 2101(a)(2) .......................................................................1, 6, 7, 10, 15
29 U.S.C. § 2101(b)(3) ...........................................................................................3
29 U.S.C. § 2102(b)(1) ...............................................................................6, 15,20
29 U.S.C. § 2101 .................................................................................................... 7
29 U.S.C. § 2101(a)(6) ...................................................................8, 11, 14, 16, 21
10,16
20 C.F.R. § 639.3(f)(2) ...................................................................................10,
OTHER AUTHORITY
Fed. R. Civ. P. 56(e) .............................................................................................13
Fed. R. Civ. Pro. 56(f) ..........................................................................................21
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I. JURISDICTIONAL STATEMENT
Appellee Gee West Seattle, LLC ("Gee West Seattle") agrees with the
Appellants' ("Employees") jurisdictional statement.
II. ISSUES PRESENTED FOR REVIEW
Whether Employees who abandoned their jobs before the closure of Gee
West Seattle, for unknown reasons and without coercion, "voluntarily departed"
within the meaning of the WARN Act, 29 U.S.C. § 2101(a)(6)(A), and therefore
did not suffer an "employment loss."
III. STATEMENT OF THE CASE
Gee West Seattle agrees with the Employees' description of the proceedings
below, except for their characterization of the district court's reasoning.
The
district court did not rule that the Employees voluntarily departed because they
"started looking for other work." Appellants' Brief at p. 3. To the contrary, the
district court noted, "The record is devoid of any declarations from employees
concerning the motivation for their early departure."
ER 6, fn. 2. Rather, the
district court found as a matter of law that Employees who left employment with
Gee West Seattle of their own free will, without being forced out by hostile or
intolerable conditions, voluntarily departed and did not suffer an employment loss
within the meaning of the WARN Act. ER 6:1-14. Because fewer than 50
employees remained until closure and suffered an "employment loss," no "plant
closure" occurred within the meaning of 29 U.S.C. § 2101(a)(2). ER 7.
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In response to the Employees ' motion for summary judgment, Gee West
Seattle moved to strike the speculative deposition testimony of members of its
management team Ryan Gee , Scott Brewer and Saundra Godin concerning the
possible reasons the Employees abandoned their jobs and whether they would have
stayed if the dealerships had not closed.
The record contains no
ER 112.
testimony by the Employees as to why they left before Gee West Seattle closed.
IV. STATEMENT OF FACTS
A.
Background.
Gee West Seattle began business operations selling and servicing
automobiles in January 2007. Gee West Seattle operated several facilities which
had separate physical locations and were independently operated . The separate
sites
included
three
independent
new
car
dealerships :
Chevrolet;
Buick/Pontiac/GMC; and Chrysler-Jeep . Each of these three new car dealerships
contained a sales department, a parts department and a service department. The
Chevrolet dealership had two separate buildings for sales and service.
The
company also operated a separate used cars facility; a separate body shop; a
separate auto loan store (for customers with challenged credit); and a separate
administration building. Each of these sites had less than 50 employees. ER 113114, Declaration of Scott Brewer, ¶ 3.
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After experiencing financial losses , Gee West Seattle actively began efforts
to sell its business in July 2007. ER 109, Declaration of Ryan Gee, ¶ 3.
B.
Notice of possible closure and request for Employees ' cooperation.
On September 26, 2007, Gee West Seattle informed its employees by memo
and announcement that it was actively seeking a purchaser of the business, but if
no purchaser could be found, Gee West Seattle would cease business operations on
October 7, 2007. Gee West Seattle did not inform its employees sooner in part
because Gee West Seattle believed it was likely that many employees would leave
its employ and thus jeopardize both the continued viability of the business and the
possibility of a sale.' ER 109-110, Declaration of Ryan Gee, ¶ 4.
Gee West Seattle specifically requested its employees' cooperation in
keeping its stores operational and "in good standing to provide the opportunity of
finding a potential buyer." ER 24.
Gee West Seattle only notified its employees of a possible closure, explicitly
stating that a purchaser was being pursued in the hopes the sites would not close,
and requesting the Employees' cooperation in keeping the stores open.
At this time, we are actively pursuing the option of selling the
dealership. If a buyer is not found before October 7, the following
will occur: Employment of all current employees of GEE West Seattle
will be terminated on Sunday, October 7 .... We truly appreciate
' Pursuant to 29 U.S.C. § 2102(b)(3), an employer entitled to a reduction of the 60day notification period is required to "give a brief statement of the basis for
reducing the notification period."
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your understanding and cooperation in the remaining days of the
store's operation. The store must remain in good standing to provide
the opportunity of finding a potential buyer, and a sale would be the
very best outcome for our employees as a whole.
ER 23-24.
C.
Mass exodus of Employees.
Before the September 26, 2007 announcement of a possible closure or sale,
Gee
West Seattle had approximately 150 employees.2
Following the
announcement, employees of Gee West Seattle began abandoning their jobs en
masse. Fewer employees showed up for work each day. General Manager Scott
Brewer became increasingly concerned about his ability to keep operations running
and assets protected with so few employees remaining.
By the morning of
October 5, 2007, only about 30 employees remained throughout the various
facilities. ER 114-115, Declaration of Scott Brewer, ¶¶ 6-7
Because the Employees began abandoning their jobs without notice
immediately after the September 26 announcement, Gee West Seattle "had no way
of counting how many people were leaving each day." ER 30-31, Godin Dep. at
39:10-40:21. It is undisputed that less than 30 employees showed up for work on
October 5.
ER 89, Godin Dep. at 72:3-12.
Ms. Godin eventually documented
most of the Employees' termination date as October 5 because she did not know
which day they left. ER 83-84, Godin Dep. at 52:23-53:12.
2 Estimates in the record span from 120 to 150 employees. Since the total number
of company employees admittedly exceeded 100, the discrepancy is immaterial.
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D.
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Closure of stores.
Because so few employees remained, Gee West Seattle could not keep the
doors open any longer and protect the company's assets. For this reason, Gee
West Seattle closed its doors on October 5, 2007. Gee West Seattle reopened the
following day, October 6, 2007, for inspection by a potential purchaser (with the
hope the stores might remain open), but the effort was unsuccessful and the
business was permanently closed. ER 115, Declaration of Scott Brewer, T¶ 8 and
10.
E.
The reasons the Employees abandoned their jobs are unknown.
There is no admissible evidence in the record to support the Appellants'
assertions that the Employees abandoned their jobs in order to seek alternative
employment; that they did so solely because they received notice of a possible site
closure; and that they otherwise would have remained employed with Gee West
Seattle.
The Employees did not submit any declarations or other admissible
evidence of their motives for quitting after they were asked to continue working to
keep the stores open and viable for a potential purchaser.
speculative testimony of Gee
West Seattle
ER 23-24.
The
management concerning the
Employees' motives is inadmissible and was the subject of a motion to strike. ER
112.
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Furthermore, there is no evidence in the record that any of the Employees
quit because of a hostile or intolerable work environment, or that Gee West Seattle
applied some sort of pressure or coercion which forced Employees to quit. ER 5.
F.
Gee West Seattle was not required to give 60 days ' notice of a possible
closure.
Assuming the WARN Act applied, Gee West Seattle was not required to
provide 60 days' notice for two independent reasons.
First, Gee West Seattle presented uncontroverted evidence that none of its
various sites employed 50 or more employees, so none of the closures constituted a
plant closing under 29 U.S.C. § 2101(a)(2).
ER 113-114, Declaration of Scott
Brewer, ¶ 3.
Second, Gee West Seattle presented uncontroverted evidence that it was
actively seeking capital to avoid a shutdown and in good faith believed that giving
60 days' notice would have precluded it from obtaining that capital. ER 109-110,
Declaration of Ryan Gee ¶ 4. In such circumstances, 60 days' notice is not
required. 29 U.S.C. § 2102(b)(1).
V. SUMMARY OF ARGUMENT
As a matter of law, all but approximately 30 of Gee West Seattle's
employees "voluntarily departed" when they abandoned their jobs of their own
volition without pressure or coercion.
Consequently, less than 50 employees
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suffered an "employment loss" within the meaning of 29 U.S.C. § 2101(a)(6)(A),
and no "plant closure" occurred within the meaning of 29 U.S.C. § 2101(a)(2).
Gee West Seattle is not estopped from relying upon the express statutory
provisions of the WARN Act. There is no evidence Gee West Seattle committed
any wrongful act, and no evidence the Employees relied to their detriment.
VI. ARGUMENT
A.
Employees ' WARN Act claims were properly dismissed as a matter of
law because fewer than 50 employees suffered an employment loss after
all but 30 employees abandoned their jobs.
The WARN Act, 29 U.S.C. § 2101 et seq., generally requires employers of
100 or more employees to provide 60 days' advance notice of a shutdown of a
single site of employment that results in an employment loss for 50 or more
employees. Gee West Seattle employed more than 100 employees and shut down
several sites of employment.
However, none of the shutdowns resulted in an
employment loss for 50 or more employees because all but 30 employees
voluntarily departed, abandoning their jobs before the closure.
1.
To make a prima facie case under the WARN Act, the Employees
must establish that 50 or more employees suffered an "employment
loss."
The WARN Act only applies to a shutdown that results in an employment
loss for 50 or more employees at a single site of employment. 29 U.S.C. §
2101(a)(2). The plaintiff bears the burden to prove a prima facie case under the
WARN Act. See Johnson v. Telespectrum Worldwide Inc., 61 F. Supp.2d 116, 121
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(D. Del. 1999), and cases cited therein. One element of plaintiff's prima facie case
is proof that a "plant closing" occurred, which requires evidence that 50 or more
employees suffered an employment loss at a single site of employment. Id. Since
all but approximately 30 of Gee West Seattle's employees voluntarily departed,
less than 50 employees suffered an employment loss.
2.
The WARN Act provides that employees who voluntarily depart their
jobs after receiving notice of a closure do not suffer an "employment
loss.
7f
An employee who abandons his or her job does not suffer an "employment
loss."
[T]he term "employment loss" means (A) an employment
termination, other than a discharge for cause, voluntary departure,
or retirement ....
29 U.S.C. § 2101(a)(6) (emphasis added).
The statute expressly states that
employees who voluntarily depart do not suffer an employment loss.
The words of the WARN Act should be interpreted according to their
ordinary meaning.
A fundamental canon of statutory construction is that, unless
otherwise defined, words will be interpreted as taking their ordinary,
contemporary, common meaning.
Long v. Dunlop Sports Group Americas, Inc., 506 F.3d 299, 302 (4th Cir. 2007),
citing Perrin v. U.S., 444 U.S. 37, 42 (1979).
The ordinary meaning of a
"voluntary departure" includes an employee's volitional choice to abandon their
job before they are terminated.
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3.
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The Gee West Seattle employees who abandoned their jobs prior to
closure voluntarily departed and did not suffer an employment loss.
The Appellant's Brief suggests that, upon receiving notice of the possibility
of the closure, the Employees did nothing more than start looking for other jobs as
any reasonable person would do.
However, the record contains no admissible
evidence the Employees began looking for other jobs, or that that the employees
could not continue to work while seeking other employment. But these are red
herrings. The critical fact is that the Employees abandoned their jobs of their own
free will, whatever their motivations.
In Guinn v. Timco Aviation Services, Inc., 317 F. Supp.2d 888 (W.D. Ark.
2004), the court held that employees who resigned prior to their lay off voluntarily
departed and did not suffer an employment loss under the WARN Act.
Employment records indicate that four of the individuals identified by
Plaintiff resigned prior to the layoff. Plaintiffs contend that these
employees resigned because they "were aware of the financial
condition of the company, and they knew that a lay-off was
inevitable." Plaintiffs argue that this creates a "fact issue" as to
whether the resignations constituted an employment loss. Plaintiffs
have cited no authority for this proposition and the Court's review of
the caselaw does not support Plaintiffs' position. To the contrary, the
Eighth Circuit has expressly held that a voluntary resignation in lieu
of being laid off is not an employment loss under the Warn Act. See
Rifkin v. McDonnell Douglass Corp., 78 F.3d 1277, 1283 (8th Cir.
1996).
Guinn, 317 F. Supp. at 891 (citations to record omitted).
Here, all but 30
employees abandoned their jobs prior to the closure of Gee West Seattle.
As a
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matter of law, less than 50 employees suffered an employment loss, and there was
no "plant closing " under the WARN Act. 29 U.S.C. § 2101( a)(2).
The regulations interpreting the WARN Act agree with this plain
construction of the definition of employment loss at 29 U.S.C. § 2101 (a)(6):
Where a termination or a layoff ... is involved, an employment loss
does not occur when an employee is reassigned or transferred to
employer-sponsored programs, such as retraining or job search
activities, as long as the reassignment does not constitute a
constructive discharge or other involuntary termination.
20 C.F.R. § 639.3(f)(2). The Department of Labor's view is that early departures
are voluntary unless they are coerced and constitute a constructive discharge:
DOL agrees with the commentators that some clarification of the
concept of voluntary departure is appropriate. The concept is not a
new one in the law; there is a developed body of law under such
statutes as the NLRA, Title VII of the 1964 Civil Rights Act and the
Age Discrimination in Employment Act. This body of law recognizes
the concept of constructive discharge, under which a worker's
resignation or retirement may be found not to be voluntary if the
employer has created a hostile or intolerable work environment or has
applied other forms of pressure or coercion which forced the
employee to quit or resign.
54 Fed. Reg. 16,048.
B.
The WARN Act explicitly and unambiguously provides that a voluntary
departure cannot constitute an employment loss.
The WARN Act explicitly states that an employee who voluntarily departs
his or her job does not suffer an "employment loss."
[T]he term "employment loss" means ... an employment termination,
other than a discharge for cause, voluntary departure, or retirement...
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29 U.S.C. § 2101(a)(6).
Employees ask this Court to ignore this plain language of the WARN Act,
citing the remedial nature of the Act and "textual ambiguities." Appellants' Brief
at p. 10. But there is no ambiguity: a voluntary departure is not an employment
loss, and without at least 50 employment losses there is no plant closing under the
Act. The words of the WARN Act should be interpreted according to their plain
and ordinary meaning. Long v. Dunlop Sports Group Americas, Inc., 506 F.3d
299, 302 (4th Cir. 2007), citing Perrin v. U.S., 444 U.S. 37, 42 (1979). The plain
and ordinary meaning of a "voluntary departure" includes an employee's volitional
choice to abandon their job before they are terminated.
Employees employ a sort of semantic gymnastics in an attempt to create an
ambiguity in 29 U.S.C. § 2101(a)(6). However, Employees necessarily concede
that a voluntary departure is a termination "excluded" from the definition of an
employment loss.
Employees also concede that the hallmark of a voluntary
departure is the employee's volition.
As a matter of law, the employees who
abandoned their jobs prior to the closure of Gee West Seattle did so of their own
volition. There is no evidence to the contrary.
Employees argue that this plain interpretation of the WARN Act would be
inconsistent with its purposes to provide employees with two months of income
while they seek other work. Appellants' Brief at pp. 6, 10. But even Employees'
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argument contemplates that the statute requires them to continue to work, and not
quit, while they seek alternative employment. Thus, the WARN Act only provides
this remedy to those employees who continue to work, not to those who depart
voluntarily.
The district court interpreted the statute consistently with these
purposes. Employees who abandon their jobs voluntarily, for whatever reason, are
not entitled to a remedy.
C.
The reasons the Employees voluntarily departed are immaterial.
The employees' reasons for abandoning their jobs are immaterial. Some
may have left Gee West Seattle early because they found alternative employment.
The WARN Act was certainly not intended to provide them with double income,
and that is why the Act excludes voluntary departures from its coverage. Some
may have abandoned their jobs for other reasons - dissatisfaction, retirement,
vacation, family concerns, etc.
The WARN Act simply makes no distinctions
regarding an employee's reasons for voluntarily departing, and their reasons in this
case are currently unknown.
Regardless, the record contains no admissible evidence of the Employees'
motives in quitting.
For whatever reasons, the Employees chose not to submit
declarations concerning why they abandoned their jobs.
In response to the Employees' motion for summary judgment, Gee West
Seattle moved to strike the speculative deposition testimony of Ryan Gee, Scott
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Brewer and Saundra Godin concerning the possible reasons the Employees
abandoned their jobs and whether they would have stayed if the dealerships had
not closed. ER 112. Fed. R. Civ. P. 56(e) requires that testimony "must be made
on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on the matters stated." Mr. Gee, Mr.
Brewer and Ms. Godin do not have personal knowledge of the reasons the
employees chose to abandon their jobs, and were merely speculating.
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need
not, consist of the witness' own testimony.
ER 602.
There is no evidence these witnesses have personal knowledge
concerning the motivations of the Employees who abandoned their jobs.3
D.
The length of notice of the possible closure is immaterial.
The district court noted that the September 26 notice indicated a closure was
not certain. ER 4-5. While the district court questioned whether the September 26
notice constituted a "notice of closure" under the WARN Act, the district court did
not make its ruling based upon on that ground.
In any event, the facts are that operations did eventually cease and
Defendant does not contest that it failed to give 60 days' advance
notice of that closure.
ER 5.4
3 Mr. Gee testified he had no information on that topic. ER
83:3-15.
, Gee Dep. at
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The timing of Gee West Seattle's notice of its possible closure is also
immaterial. It does not affect the voluntary nature of the departure by those who
abandoned their jobs. Nowhere in the definition of employment loss is the timing
of notice implicated. 29 U.S.C. § 2101(a)(6).
Castro v. Chicago Housing Authority, 360 F.3d 721 (7th Cir. 2004),
confirms that the length of notice of a closure is immaterial. In Castro, the court
found that the employer had given only 15 days notice prior to termination.
Castro, 360 F.3d at 726. Furthermore, the court found that "it is undisputed that
[the employer] violated the [WARN] Act." Castro, 360 F.3d at 730. Nevertheless,
an employee who resigned six days after the notice but prior to his actual
termination was held to have voluntarily departed and did not suffer an
employment loss under 29 U.S.C. § 2101(a)(6). See also Guinn v. Timco Aviation
Services, Inc., 317 F. Supp.2d 888 (W.D. Ark. 2004) (employees who resigned
prior to their lay-off voluntarily departed and did not suffer an employment loss
under the WARN Act).
Moreover, the Employees' assertion that Gee West Seattle violated the
WARN Act by giving less than 60 days' notice of a possible closure is false.
4 Employees' argument that the district court "erred" in its characterization of the
September 26 notice is immaterial. Appellants ' Brief at 11-14. The district court's
analysis assumed that it constituted a notice of closure under the WARN Act.
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Assuming any notice was required,' Gee West Seattle was permitted to provide
less than 60 days' notice because it fell under the faltering business exception of 29
U.S.C. § 2102(b)(1). Gee West Seattle was ultimately proven correct in its belief
that providing notice of a possible closure would lead to a mass exodus of its
employees and jeopardize any opportunity to secure a buyer and keep the business
open. ER 109-112, Gee Declaration ¶4. Thus, it certainly is not established that
Gee West Seattle was required to give 60 days' notice of a possible closure.
Regardless, the employees who abandoned their jobs did not even wait until
the sites closed.
They all left no later than October 4, even though Gee West
Seattle was still seeking a purchaser who could keep the sites open, and even
though Gee West Seattle had notified its employees it would remain open at least
through October 7, 2007. ER 23-24; ER 83-84, Godin Dep. at 52:23-53:12.6
s Since less than 50 employees suffered an employment loss, there was no "plant
closing" and no notice was required. 29 U.S.C. § 2101(a)(2). Also, the WARN
Act does not apply, and no notice was required, because Gee West Seattle closed
multiple sites, none of which employed 50 employees. 29 U.S.C. § 2101(a)(2); ER
_, Brewer Declaration, T3.
6 Ms. Godin testified that she could not determine on what date many employees
left their jobs, so she used the dates of October 5 and October 31 in her
documentation for convenience.
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E.
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Employees provided no evidence that those who abandoned their jobs
were constructively discharged.
The Department of Labor has interpreted "voluntary departure" in 29 U.S.C.
§ 2101(a)(6) consistently with the common law concept of constructive discharge.
Plaintiffs' Motion at 10:2-13.
Where a termination or a layoff ... is involved, an employment loss
does not occur when an employee is reassigned or transferred to
employer-sponsored programs, such as retraining or job search
activities, as long as the reassignment does not constitute a
constructive discharge or other involuntary termination.
20 C.F.R. § 639.3(f)(2). The Department of Labor's view is that early departures
are voluntary unless they are coerced and constitute a constructive discharge:
DOL agrees with the commentators that some clarification of the
concept of voluntary departure is appropriate. The concept is not a
new one in the law; there is a developed body of law under such
statutes as the NLRA, Title VII of the 1964 Civil Rights Act and the
Age Discrimination in Employment Act. This body of law recognizes
the concept of constructive discharge, under which a worker's
resignation or retirement may be found not to be voluntary if the
employer has created a hostile or intolerable work environment or has
applied other forms of pressure or coercion which forced the
employee to quit or resign.
54 Fed. Reg. 16,048.
Employees failed to present the district court with any evidence of
constructive discharge.
Absent such evidence, the abandoning employees
voluntarily departed and suffered no employment loss under 29 U.S.C.
§ 2101(a)(6).
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Giving notice of a closure or possible closure does not constitute
constructive discharge. In Long v. Dunlop, supra, the court applied the doctrine of
constructive discharge in concluding that employees who abandoned their job for
another after receiving notice of a plant closure voluntarily departed.
A constructive discharge occurs if an employer deliberately makes the
working conditions intolerable in an effort to induce the employee to
The Employees apparently believe that Dunlop's actions
quit.
rendered their working conditions "intolerable" and their departure
"involuntary" because Dunlop told them that their employment would
end in 60 days. But the WARN Act requires that covered employers,
like Dunlop, provide notice 60 days prior to termination resulting
from a plant shutdown. If this notice of termination would make
workplace conditions "intolerable," then every employer that adhered
to the WARN Act notice requirement would constructively discharge
its employees at the moment of notice and so violate the WARN Act.
Obviously, Congress did not pass legislation in which an employer's
very compliance with the statute constitutes a statutory violation.
And again, the regulations promulgated pursuant to the WARN Act
fatally undermine the Employees' position. In these regulations, the
Department of Labor states that it "does not ... agree that a worker
who, after the announcement of a plant closing or mass layoff, decides
to leave early has necessarily been constructively discharged or quit
`involuntarily'." Worker Adjustment and Retraining Notification, 54
Fed. Reg. at 16,048.
Long, 506 F.3d at 303-04 (quotations and citations omitted).
Amatuzio v. Gandalf Sys. Corp., 994 F. Supp. 253 (D. N.J. 1998), does not
change the result. The employer in that case terminated its employees the day after
providing notice of the closure.
Amatuzio, 994 F. Supp. at 275-76. Thus, the
termination was not voluntary. In contrast, Gee West Seattle did not terminate
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those employees who abandoned their jobs early. They voluntarily departed. In
addition , the court in Amatuzio found that the employees who resigned before the
business closed were not constructively discharged.
Amatuzio, 994 F . Supp. at
262-64.
Relying upon Knappenberger v. City of Phoenix, 566 F.3d 936 (9th Cir.
2009), Employees argue that they had no choice but to begin looking for
alternative employment , and consequently they were forced to quit and
constructively discharged . This argument is nonsensical . Continuing to work and
searching for alternative employment are not mutually exclusive activities.
As
discussed above , The WARN Act contemplates employees will continue to work
until site closure while they seek alternative employment. As this Court did in
Knappenberger, it should " reject cases in which the employee did have a choice,
even if between comparatively unpleasant alternatives." 566 F.3d at 941.
Here, the parties agree that all but approximately 30 employees (at all of Gee
West Seattle sites ) abandoned their jobs prior to closure . There is no evidence that
their departures were anything other than voluntary ; no evidence of "other forms of
pressure or coercion which forced the employee to quit or resign ." See 54 Fed.
Reg. 16,048. Gee West Seattle did nothing more than notify its employees that, if
a purchaser were not found, the stores would close on October 7, 2007. But by
October 5 , 2007 , only approximately 30 employees remained in total and were
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ultimately terminated. Nobody was forced to resign. The Employees voluntarily
departed, and thus did not suffer an employment loss as a matter of law.
F.
Equitable estoppel and proximate cause arguments are inapplicable.
Without citation to any pertinent legal authority, plaintiffs argue that Gee
West Seattle should be equitably estopped from arguing that its employees
voluntarily departed.
First, this argument ignores the fact that the WARN Act
itself requires proof that at least 50 employees suffered an employment loss. There
is no authority for the proposition that this Court may employ equity to ignore or
modify the express requirements of the statute.
Secondly, there is no evidence of the first element of equitable estoppel: a
misrepresentation of fact. Employees baldly assert that "Gee West Seattle knew 60
days in advance of the closure of its business operations that it would be shutting
its doors" but concealed that information "because it did not want them to look for
alternative employment." Appellants' Brief at 35, 34. To the contrary, Employees
presented no evidence that Gee West Seattle knew it would close its businesses 60
days prior to the closure. Indeed, the evidence is that Gee West Seattle was not
even sure it would close when it notified its employees on September 26 that, if no
purchaser were secured, the businesses would close October 7.
ER 23.
Moreover, there is absolutely no evidence that Gee West Seattle wanted to prevent
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the Employees from seeking alternative employment - only that Gee West Seattle
did not want the Employees to quit. ER 23-24.
Furthermore, there is no evidence that Gee West Seattle had any duty to
disclose the possible closures at all, let alone prior to September 26. As argued
above, Gee West Seattle was not required to give notice because none of the sites
to be closed employed 50 persons; and Gee West Seattle fell within the faltering
business exception of 29 U.S.C. § 2102(b)(1).
There is also no evidence of detrimental reliance by the Employees who quit
their jobs.
Employees seem to argue that, if they had known of the possible
closures earlier, they could have abandoned their jobs earlier. Thfis would not be
detrimental reliance - it would merely be an earlier voluntary departure, again
negating any employment loss.
Neither is tort-based proximate cause analysis applicable. Employees argue
their job abandonment was "caused" by Gee West Seattle's notice of possible
closure, because they would not have quit had they not received the notice. But
this logic has no destination and ignores the express language of the WARN Act.
The WARN Act is concerned with whether the Employees' departure was
voluntary, not whether it was causally related to the giving of notice of closure.
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G.
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If the Court were to reverse the district court's judgment that all but
approximately 30 of the Employees " voluntarily departed," further
discovery is necessary to determine the reasons Employees abandoned
their jobs and whether or not they voluntarily departed and therefore
did not suffer an employment loss.
If the Court is unable to conclude as a matter of law that the Employees
voluntarily departed under the WARN Act and reverses the district court, more
discovery is required and the denial of the Employees' motion for summary
judgment should be affirmed.
The Employees ask this Court to rule as a matter of law that none of Gee
West Seattle employees voluntarily departed within the meaning of 29 U.S.C. §
2101(a)(6).
This cannot be determined without questioning those employees
regarding the reasons they abandoned their jobs. Some may have found alternative
employment and thus suffered no employment loss. Some may have chosen to
retire and thus suffered no employment loss.
Gee West Seattle and its attorneys are entitled to discovery as to why the
Employees abandoned their jobs prior to closure, and may only question class
members by deposition.
Under these circumstances, a continuance of the
Employees' motion is appropriate under Fed. R. Civ. Pro. 56(f).
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VII. CONCLUSION
The district court ' s judgment should be affirmed.
RESPECTFULLY SUBMITTED this 11 th day of March, 2010.
RYAN, SWANSON & CLEVELAND, PLLC
1201 Third Avenue, Suite 3400
Seattle, WA 98101
Telephone: (206) 464-4224
Facsimile: (206) 583-0359
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STATEMENT OF RELATED CASES
Appellee Gee West Seattle is not aware of any related cases pending in this
Court.
RESPECTFULLY SUBMITTED this 11 ch day of March, 2010.
RYAN, SWANSON & CLEVELAND, PLLC
By
Richard P. Lentini, WSBA # 18086
Attorneys for Defendant/Appellee
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ADDENDUM
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§ 2101 . Definitions; Exclusions from Definition of Loss of Employment.
United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 910-460
§ 2101. Definitions ; Exclusions from Definition of Loss of Employment.
(a)
Definitions
As used in this chapter(1)
the term "employer" means any business enterprise that employs(A)
100 or more employees, excluding part-time employees; or
(B)
100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of
overtime);
(2)
the term "plant closing" means the permanent or temporary shutdown of a single site of employment, or one or more
facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single
site of employment during any 30-day period for 50 or more employees excluding any part-time employees;
(3)
the term "mass layoff' means a reduction in force which(A)
is not the result of a plant closing; and
(B)
results in an employment loss at the single site of employment during any 30-day period forG)
(ii)
(I)
at least 33 percent of the employees (excluding any part-time employees); and
(II)
at least 50 employees (excluding any part-time employees); or
at least 500 employees (excluding any part-time employees);
(4)
the term "representative" means an exclusive representative of employees within the meaning of section 159 (a) or 158
(f) of this title or section 152 of title 45;
(5)
the term "affected employees" means employees who may reasonably be expected to experience an employment loss as
a consequence of a proposed plant closing or mass layoff by their employer;
(6)
subject to subsection (b) of this section, the term "employment loss" means
(A)
an employment termination, other than a discharge for cause, voluntary departure, or retirement,
(B)
a layoff exceeding 6 months, or
(C)
a reduction in hours of work of more than 50 percent during each month of any 6-month period;
(7)
the term "unit of local government" means any general purpose political subdivision of a State which has the power to
levy taxes and spend funds, as well as general corporate and police powers; and
(8)
the term "part-time employee" means an employee who is employed for an average of fewer than 20 hours per week or
who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.
As used in this chapter-
(b)
Exclusions from definition of employment loss
(1)
In the case of a sale of part or all of an employer's business, the seller shall be responsible for providing notice for any
plant closing or mass layoff in accordance with section 2102 of this title, up to and including the effective date of the sale.
After the effective date of the sale of part or all of an employer's business, the purchaser shall be responsible for
providing notice for any plant closing or mass layoff in accordance with section 2102 of this title. Notwithstanding any
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other provision of this chapter, any person who is an employee of the seller (other than a part-time employee) as of the
effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the
sale.
(2)
Notwithstanding subsection (a)(6) of this section, an employee may not be considered to have experienced an
employment loss if the closing or layoff is the result of the relocation or consolidation of part or all of the employer's
business and, prior to the closing or layoff(A)
the employer offers to transfer the employee to a different site of employment within a reasonable commuting
distance with no more than a 6-month break in employment; or
(B)
the employer offers to transfer the employee to any other site of employment regardless of distance with no
more than a 6-month break in employment, and the employee accepts within 30 days of the offer or of the
closing or layoff, whichever is later.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 2, Aug. 4, 1988, 102 Stat. 890.)
Effective Date
Section 11 of Pub. L. 100-379 provided that: "This Act [enacting this chapter] shall take effect on
the date which is 6 months after the date of enactment of this Act [Aug. 4, 1988], except that the
authority of the Secretary of Labor under section 8 [section 2107 of this title] is effective upon
enactment."
Short Title
Section 1(a) of Pub. L. 100-379 provided that: "This Act [enacting this chapter] may be cited as the
'Worker Adjustment and Retraining Notification Act'."
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United States Statutes
Title 29. Labor
Chapter 23. WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2102 . Notice Required before Plant Closings and Mass Layoffs.
(a)
Notice to employees, State dislocated worker units , and local governments
An employer shall not 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(1)
to each representative of the affected employees as of the time of the notice or, if there is no such representative at that
time, to each affected employee; and
(2)
to the State or entity designated by the State to carry out rapid response activities under section 2864 (a)(2)(A) of this
title, and the chief elected official of the unit of local government within which such closing or layoff is to occur.
If there is more than one such unit, the unit of local government which the employer shall notify is the unit of local
government to which the employer pays the highest taxes for the year preceding the year for which the determination is made.
An employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of
such an orderIf there is more than one such unit, the unit of local government which the employer shall notify is the unit of local government to
which the employer pays the highest taxes for the year preceding the year for which the determination is made.
(b)
Reduction of notification period
(1)
(2)
(3)
(c)
An employer may order the shutdown of a single site of employment before the conclusion of the 60-day period if as of
the time that notice would have been required the employer was actively seeking capital or business which, if obtained,
would have enabled the employer to avoid or postpone the shutdown and the employer reasonably and in good faith
believed that giving the notice required would have precluded the employer from obtaining the needed capital or
business.
(A)
An employer may order a plant closing or mass layoff before the conclusion of the 60-day period if the closing or
mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice
would have been required.
(B)
No notice under this chapter shall be required if the plant closing or mass layoff is due to any form of natural
disaster, such as a flood, earthquake, or the drought currently ravaging the farmlands of the United States.
An employer relying on this subsection shall give as much notice as is practicable and at that time shall give a brief
statement of the basis for reducing the notification period.
Extension of layoff period
A layoff of more than 6 months which, at its outset, was announced to be a layoff of 6 months or less, shall be treated as an
employment loss under this chapter unless-
(1)
the extension beyond 6 months is caused by business circumstances (including unforeseeable changes in price or cost)
not reasonably foreseeable at the time of the initial layoff; and
(2)
notice is given at the time it becomes reasonably foreseeable that the extension beyond 6 months will be required.
A layoff of more than 6 months which , at its outset, was announced to be a layoff of 6 months or less, shall be treated as an
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employment loss under this chapter unlessDeterminations with respect to employment loss
(d)
For purposes of this section, in determining whether a plant closing or mass layoff has occurred or will occur, employment
losses for 2 or more groups at a single site of employment, each of which is less than the minimum number of employees specified
in section 2101 (a)(2) or (3) of this title but which in the aggregate exceed that minimum number, and which occur within any 90day period shall be considered to be a plant closing or mass layoff unless the employer demonstrates that the employment losses
are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of
this chapter.
For purposes of this section, in determining whether a plant closing or mass layoff has occurred or will occur, employment losses for
2 or more groups at a single site of employment, each of which is less than the minimum number of employees specified in section 2101
(a)(2) or (3) of this title but which in the aggregate exceed that minimum number, and which occur within any 90-day period shall be
considered to be a plant closing or mass layoff unless the employer demonstrates that the employment losses are the result of separate
and distinct actions and causes and are not an attempt by the employer to evade the requirements of this chapter.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 3, Aug. 4, 1988, 102 Stat. 891; Pub. L. 105-277, div. A, §101(f) [title VIII, § 405(d)(26),
(f)(18)], Oct. 21, 1998, 112 Stat. 2681-337, 2681-424, 2681-432.)
Amendments
1998-Subsec. (a)(2). Pub. L. 105-277, §101(f) [title VIII, § 405(f)(18)], struck out "the State
dislocated worker unit or office (referred to in section 1661 (b)(2) of this title), or" before "the
State or entity".
Pub. L. 105-277, §101(f) [title VIII, § 405(d)(26)], substituted "to the State dislocated worker unit
or office (referred to in section 1661 (b)(2) of this title), or the State or entity designated by the
State to carry out rapid response activities under section 2864 (a)(2)(A) of this title, and the chief'
for "to the State dislocated worker unit (designated or created under title III of the Job Training
Partnership Act) and the chief".
Effective Date of 1998 Amendment
Amendment by section 101 (f) [title VIII, § 405(d)(26)] of Pub. L. 105-277 effective Oct. 21, 1998,
and amendment by section 101 (f) [title VIII, § 405(f)(18)] of Pub. L. 105-277 effective July 1,
2000, see section 101 (f) [title VIII, § 405(8)(1), (2)(13)] of Pub. L. 105-277, set out as a note
under section 3502 of Title 5, Government Organization and Employees.
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2103. Exemptions.
This chapter shall not apply to a plant closing or mass layoff if(1)
the closing is of a temporary facility or the closing or layoff is the result of the completion of a particular project or undertaking,
and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or
the project or undertaking; or
(2)
the closing or layoff constitutes a strike or constitutes a lockout not intended to evade the requirements of this chapter. Nothing in
this chapter shall require an employer to serve written notice pursuant to section 2102 (a) of this title when permanently replacing
a person who is deemed to be an economic striker under the National Labor Relations Act [29 U.S.C. 151 et seq.]: Provided, That
nothing in this chapter shall be deemed to validate or invalidate any judicial or administrative ruling relating to the hiring of
permanent replacements for economic strikers under the National Labor Relations Act.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 4, Aug. 4, 1988, 102 Stat. 892.)
References in Text
The National Labor Relations Act, referred to in par. (2), is act July 5, 1935, ch. 372, 49 Stat. 452,
as amended, which is classified generally to subchapter II (§ 151 et seq.) of chapter 7 of this title.
For complete classification of this Act to the Code, see section 167 of this title and Tables.
Archive
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2104 . Administration and Enforcement of Requirements.
(a)
Civil actions against employers
(1)
Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each
aggrieved employee who suffers an employment loss as a result of such closing or layoff for(A)
(B)
back pay for each day of violation at a rate of compensation not less than the higher of(i)
the average regular rate received by such employee during the last 3 years of the employee's
employment; or
(ii)
the final regular rate received by such employee; and
benefits under an employee benefit plan described in section 1002 (3) of this title, including the cost of medical
expenses incurred during the employment loss which would have been covered under an employee benefit plan
if the employment loss had not occurred.
Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more
than one-half the number of days the employee was employed by the employer.
(2)
The amount for which an employer is liable under paragraph (1) shall be reduced by(A)
any wages paid by the employer to the employee for the period of the violation;
(B)
any voluntary and unconditional payment by the employer to the employee that is not required by any legal
obligation; and
(C)
any payment by the employer to a third party or trustee (such as premiums for health benefits or payments to a
defined contribution pension plan) on behalf of and attributable to the employee for the period of the violation.
In addition, any liability incurred under paragraph (1) with respect to a defined benefit pension plan may be reduced
by crediting the employee with service for all purposes under such a plan for the period of the violation.
(3)
Any employer who violates the provisions of section 2102 of this title with respect to a unit of local government shall be
subject to a civil penalty of not more than $500 for each day of such violation, except that such penalty shall not apply if
the employer pays to each aggrieved employee the amount for which the employer is liable to that employee within 3
weeks from the date the employer orders the shutdown or layoff.
(4)
If an employer which has violated this chapter proves to the satisfaction of the court that the act or omission that violated
this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was
not a violation of this chapter the court may, in its discretion, reduce the amount of the liability or penalty provided for in
this section.
(5)
A person seeking to enforce such liability, including a representative of employees or a unit of local government aggrieved
under paragraph (1) or (3), may sue either for such person or for other persons similarly situated, or both, in any district
court of the United States for any district in which the violation is alleged to have occurred, or in which the employer
transacts business.
(6)
In any such suit, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the
costs.
(7)
For purposes of this subsection, the term 'R] "aggrieved employee" means an employee who has worked for the employer
ordering the plant closing or mass layoff and who, as a result of the failure by the employer to comply with section 2102
of this title, did not receive timely notice either directly or through his or her representative as required by section 2102 of
this title.
Such liability shall be calculated for the period of the violation , up to a maximum of 60 days , but in no event for more than one-half the
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number of days the employee was employed by the employer.
In addition, any liability incurred under paragraph ( 1) with respect to a defined benefit pension plan may be reduced by crediting the
employee with service for all purposes under such a plan for the period of the violation.
Exclusivity of remedies
(b)
The remedies provided for in this section shall be the exclusive remedies for any violation of this chapter. Under this chapter,
a Federal court shall not have authority to enjoin a plant closing or mass layoff.
The remedies provided for in this section shall be the exclusive remedies for any violation of this chapter. Under this chapter, a
Federal court shall not have authority to enjoin a plant closing or mass layoff. [1] So in original. The comma probably should not appear.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 5, Aug. 4, 1988, 102 Stat. 893.)
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United States Statutes
Title 29. Labor
Chapter 23. WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 910-460
§ 2105 . Procedures in Addition to Other Rights of Employees.
The rights and remedies provided to employees by this chapter are in addition to, and not in lieu of, any other contractual or statutory
rights and remedies of the employees, and are not intended to alter or affect such rights and remedies, except that the period of notification
required by this chapter shall run concurrently with any period of notification required by contract or by any other statute.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 6, Aug. 4, 1988, 102 Stat. 894.)
Archive
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2106 . Procedures Encouraged Where Not Required.
It is the sense of Congress that an employer who is not required to comply with the notice requirements of section 2102 of this title
should, to the extent possible, provide notice to its employees about a proposal to close a plant or permanently reduce its workforce.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 7, Aug. 4, 1988, 102 Stat. 894.)
Archive
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2107 . Authority to Prescribe Regulations.
(a)
The Secretary of Labor shall prescribe such regulations as may be necessary to carry out this chapter . Such regulations shall, at a
minimum, include interpretative regulations describing the methods by which employers may provide for appropriate service of
notice as required by this chapter.
(b)
The mailing of notice to an employee's last known address or inclusion of notice in the employee's paycheck will be considered
acceptable methods for fulfillment of the employer's obligation to give notice to each affected employee under this chapter.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 8, Aug. 4, 1988, 102 Stat. 894.)
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 110-460
§ 2108 . Effect on Other Laws.
The giving of notice pursuant to this chapter, if done in good faith compliance with this chapter , shall not constitute a violation of the
National Labor Relations Act [29 U.S.C. 151 et seq.] or the Railway Labor Act [45 U.S. C. 151 et seq.].
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 9, Aug. 4, 1988, 102 Stat. 894.)
References in Text
The National Labor Relations Act, referred to in text, is act July 5, 1935, ch. 372, 49 Stat. 452, as
amended, which is classified generally to subchapter II (§ 151 et seq.) of chapter 7 of this title. For
complete classification of this Act to the Code, see section 167 of this title and Tables.
The Railway Labor Act, referred to in text, is act May 20, 1926, ch. 347, 44 Stat. 577, as amended,
which is classified principally to chapter 8 (§ 151 et seq.) of Title 45, Railroads. For complete
classification of this Act to the Code, see section 151 of Title 45 and Tables.
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United States Statutes
Title 29. Labor
Chapter 23 . WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Current through P.L. 190-460
§ 2109 . Report on Employment and International Competitiveness.
Two years after August 4, 1988, the Comptroller General shall submit to the Committee on Small Business of both the House and
Senate, the Committee on Labor and Human Resources, and the Committee on Education and Labor a report containing a detailed and
objective analysis of the effect of this chapter on employers (especially small- and medium-sized businesses), the economy (international
competitiveness), and employees (in terms of levels and conditions of employment). The Comptroller General shall assess both costs and
benefits, including the effect on productivity, competitiveness, unemployment rates and compensation, and worker retraining and
readjustment.
Notes from the Office of Law Revision Counsel
current through 2008-10-24
Source
(Pub. L. 100-379, § 10, Aug. 4, 1988, 102 Stat. 894.)
Change of Name
Committee on Small Business of Senate changed to Committee on Small Business and
Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June
29, 2001.
Committee on Labor and Human Resources of Senate changed to Committee on Health, Education,
Labor, and Pensions of Senate by Senate Resolution No. 20, One Hundred Sixth Congress, Jan. 19,
1999.
Committee on Education and Labor of House of Representatives treated as referring to Committee
on Economic and Educational Opportunities of House of Representatives by section 1(a) of Pub. L.
104-14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Economic
and Educational Opportunities of House of Representatives changed to Committee on Education
and the Workforce of House of Representatives by House Resolution No. 5, One Hundred Fifth
Congress, Jan. 7, 1997.
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Case: 09-36110 03/11/2010 Page: 42 of 43
ID: 7262477 DktEntry: 9
Ryan, Swanson & Cleveland, PLLC
1201 Third Avenue, Suite 3400
Seattle, WA 98101.3034
206.464.4224 1 Fax 206, 583.0359
Toll-free 800.458.5973
www.ryanswansonlaw.com
RYAN
SWANSON
Lawyers since 1897
Richard P. Lentini
direct dial 206.654.2231
direct fax 206.652.2931
lentini@ryanlaw,com
Ref. No . 602471 .01/012025.00007
February 23, 2010
Mr. Michael C. Subit
Frank Freed Subit & Thomas LLP
705 Second Avenue, Suite 1200
Seattle, WA 98104-1798
Re:
Collins v . Gee West Seattle LLC, Ninth Circuit No. 09-36110
Dear Mr. Subit:
Thank you for your cooperation regarding our request for an extension to file Appellee's
answering brief. At the direction of the court's clerk, we are writing to inform you that we have
been granted a 14-d4y oral extension and the due date for our brief is now March 11, 2010. Your
optional reply brief will be due within fourteen days of service of our Appellee's brief.
Thank you again for your professional courtesy.
Very truly yours,
Richard P. Lentini
cc:
Ryan Gee
Charter Member of TAGLaw,
a worldwide network of law firms
Case: 09-36110 03/11/2010 Page: 43 of 43
ID: 7262477 DktEntry: 9
9th Circuit Case Number(s) CA. No. 09-36110
NOTE : To secure your input, you should print the fi lled-in form to PDF (File > Print > PDF' Printer Creator).
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
March 11, 2010
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)
/s/ Richard P. Lentini
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid , or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)