United States District Court, Northern District of Illinois, Eastern Division
May 15, 2001
THOMAS ROWAN, THOMAS RIZZI, INDIVIDUALLY AND ON BEHALF OF A CLASS OF PERSONS SIMILARLY SITUATED, PLAINTIFFS,
CHICAGO HOUSING AUTHORITY, DEFENDANT.
The opinion of the court was delivered by: Ruben Castillo, Judge
MEMORANDUM OPINION AND ORDER
Class action Plaintiffs Thomas Rowan and Thomas Rizzi, police officers
formerly employed by Defendant Chicago Housing Authority ("CHA"), sued
the CHA to recover damages they suffered when the CHA terminated their
employment as part of a reduction in force in September 1998. Plaintiffs
allege that the CHA violated the Worker Adjustment and Retraining
Notification ("WARN") Act, 29 U.S.C. § 2101, by terminating their
employment without adequate notice. Defendant CHA seeks summary judgment
on the grounds that it is not an "employer" subject to the notice
requirements of the WARN Act, and even if the WARN Act applies to the
CHA, its reduction in force is not a "mass layoff" or "plant closing"
sufficient to trigger the WARN Act's notice requirements. Because we
agree that the CHA's reduction in force in this case is not actionable
under the WARN Act, we decline to address whether the WARN Act would
apply to the CHA in other circumstances. For the reasons stated below,
Defendant's motion for summary judgment is granted.
Rowan and Rizzi were police officers employed by the CHA to provide
police and security services to public housing residents. The CHA
terminated Plaintiffs' employment on September 11, 1998, as part of a
planned reduction in force which eliminated 69 out of 394 police officer
positions. Plaintiffs received written notice of their layoffs from the
CHA on August 28, 1998. In addition, Plaintiffs' union representatives,
the Fraternal Order of Police ("FOP"), received definitive notice of the
layoffs from the CHA on August 24, 1998, after having received earlier
notice from the CHA on July 24, 1998, that the CHA intended to implement
a reduction in force.
The CHA ordered the reduction in force to comply with a Corrective
Action Order ("CAO") issued by the Department of Housing and Urban
Development ("HUD") in 1996, which required the CHA to reduce its
spending of federal capital grant funds on police and security
activities. Also, as a result of the CAO, the
CHA executed an agreement
with the Chicago Police Department coordinating certain police and
security services between the two forces. Prior to the layoffs in
September 1998, the CHA employed 394 sworn police officers. All
officers, including Plaintiffs and the 67 other officers laid off on
September 11, 1998, generally were assigned to one of five CHA police
stations near Chicago public housing sites. None of the CHA's police
stations was shut down in connection with this reduction in force.
I. Summary Judgment
Summary judgment is appropriate if the record shows that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for
trial exists only when "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 (1986). The Court must view the evidence in a
light most favorable to the nonmoving party and draw all reasonable
inferences in the nonmovant's favor. Crim v. Bd. of Educ. of Cairo Sch.
Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). However, if the evidence
is merely colorable, or is not sufficiently probative, summary judgment
may be granted. Liberty Lobby, 477 U.S. at 249-50. Moreover, in
considering a motion for summary judgment, we need not assume the truth
of a nonmovant's conclusory allegations on faith or scour the record to
unearth material factual disputes. Carter v. Am. Oil Co., 139 F.3d 1158
(7th Cir. 1998) (citation omitted). Ultimately, this Court must decide
"whether the state of the evidence is such that, if the case were tried
tomorrow, the plaintiff would have a fair chance of obtaining a verdict."
Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1573 (7th Cir. 1989).
II. WARN Act
The WARN Act requires employers to provide sixty day's advance notice
to employees and local communities in the event of plant closings and
mass layoffs. 29 U.S.C. § 2102(a). Under the Act, an "employer" means
"any business enterprise" that employs 100 or more full time equivalent
employees. Id. at § 2101(a)(1). The WARN Act is intended to provide
workers, their families and communities with some warning about the
sudden loss of employment. See 20 C.F.R. § 639.1 (Department of Labor
regulations defining the purpose of the WARN Act). An employer who
violates the WARN Act is liable for back pay, lost benefits, civil
penalties and attorney's fees. 29 U.S.C. § 2104(a)(1).
The Act is only triggered, however, if an employer conducts a plant
closing or mass layoff. The WARN Act defines a plant closing as "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." Id. at § 2101(a)(2). Furthermore, mass
layoff under the Act is defined as a loss of employment for "at least 33
percent of the employees" and "at least 50 employees" at a "single site of
employment." Id. at § 2101(a)(3).
In its motion for summary judgment, Defendant CHA argues that it is not
an "employer" within the meaning of the WARN Act and that it has not
committed a reduction in force sufficient to trigger the Act. Because we
agree with Defendant
that its reduction in force does not meet the Act's
requirements of a "mass layoff" or "plant closing," the Act is not
triggered, and we need not address at this time whether the CHA is an
employer subject to the notice requirements of the WARN Act.
Plaintiffs in this case do not present a triable legal issue under the
WARN Act. As a threshold matter, in order for Plaintiffs to sustain a
claim for damages under the Act, they must demonstrate that Defendant
conducted a "mass layoff" or "plant closing." Id. at § 2102. Thus,
Plaintiffs must produce specific facts showing that Defendant's reduction
in force affected at least 33 percent and at least 50 of its employees at
a single site of employment, see id. at § 2101(a)(3);
20 C.F.R. § 639.3(c), or showing that Defendant shut down a single
site of employment or one or more facilities or operating units within a
single site of employment. See 29 U.S.C. § 2101(a)(2);
20 C.F.R. § 639.3(b). Because Plaintiffs have not carried their
evidentiary burden on either point, they cannot defeat Defendant's
summary judgment motion.
First, Plaintiffs fail to show that Defendant conducted a mass layoff
Plaintiffs admit that the CHA laid off only 69 of its 394 police officers
from five different sites on September 11, 1998.*fn1 (R. 30, Pls.'
Resp. to Def.'s Statement of Facts ¶¶ 44-45.) Plaintiffs assert that
the five different CHA police stations comprise a single site for the
purpose of applying the WARN Act. (R. 29, Pls.' Resp. to Def.'s Mot. for
Summ. J. at 13). Even when viewing the evidence in a light most favorable
to Plaintiffs, Defendant's reduction in force of 69 of its 394 officers
represents only 17.5 percent of the CHA's employees at a single site.
While the CHA's reduction in force affected over 50 employees, it failed
to affect at least 33 percent of employees at a single site and thus does
not constitute an actionable mass layoff under the WARN Act.
Second, Plaintiffs fail to show that the CHA conducted a plant
closing. Plaintiffs admit that the CHA did not shut down any of its five
sites in connection with the September 1998 reduction in force. (R. 30,
Pls.' Resp. to Def.'s Statement of Facts ¶ 46.) Based on this fact
alone, the requirement of a "permanent or temporary shutdown" of a single
site or of one or more facilities within a single site is not met.
Moreover, Plaintiffs' argument that Defendant's reduction in force
constitutes a plant closing because it affected more than 50 employees
misconstrues the WARN Act. (R. 29, Pls.' Resp. to Def.'s Mot. for Summ,
J. at 13.) The Act first defines a plant closing as a temporary or
permanent shutdown of a single site or operating unit within a single site
of employment, and second imposes a requirement that the shutdown affect
at least 50 or more full time equivalent employees. See
20 U.S.C. § 2101(a)(2). Contrary to Plaintiffs' assertion, the Act
does not state that a layoff of 50 or more employees from a single site,
alone, qualifies as a plant closing.*fn2 Hence, based on the undisputed
fact that the CHA did not shut down any of its five sites as a result of
its September 1998 reduction in force, Defendant did not conduct a plant
closing in violation of the WARN Act.
For the foregoing reasons, we grant Defendant's motion for summary
judgment. (R. 21-1.) The Clerk of the Court is directed to enter judgment
pursuant to Federal Rule of Civil Procedure 58 in favor of Defendant and