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ROQUET v. ARTHUR ANDERSEN

March 2, 2004.

NANCY J. ROQUET and CORETTA ROBINSON, Plaintiffs,
v.
ARTHUR ANDERSEN LLP, Defendant



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs, Nancy J. Roquet ("Roquet") and Coretta Robinson ("Robinson"), brought a class action suit against Defendant, Arthur Andersen LLP ("Andersen"), alleging Defendant violated the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. § 2101-2109, Presently before the Court are: (1) Defendant's Motion to Strike Plaintiffs' Cross-Motion for Partial Summary Judgment on Issue of Existence of Mass Layoff, (2) Defendant's Motion for Summary Judgment, and (3) Plaintiffs' Cross-Motion for Partial Summary Judgment on Issue of Existence of Mass Layoff,
BACKGROUND
Andersen was engaged in the business of accounting, auditing and tax and business and speciality consulting in various locations in the United States. (Def.'s 56.1(a)(3) Statement ¶ 3), In March and April 2002, Andersen had employed sites in more than eighty locations in the United States, including its employment site at 33 West Monroc Street, Chicago, Illinois, (Id., ¶ 8), Andersen's employees were assigned to one employment site. (Id., ¶ 11). Andersen's employment site at 33 West Monroe was not contiguous with any other Andersen location. (Id., ¶ 12). As of mid and late March 2002, Andersen employed in excess of 25,000 persons in its more than eighty employment sites throughout the United States. (Id., ¶ 25). Page 2

  On March 14, 2002, the United States Department of Justice made its indictment of Andersen on certain criminal charges, (Def.'s 56. l(a)(3) Statement ¶ 24). On or about April 8, 2002, notices were sent to a number of Andersen's employees, including some employees at its 33 West Monroe employment site, notifying each employee to whom a notice was addressed that his or her employment would be terminated at a future date after a specified period of continued employment, referred to as "job search" time. Based on business needs, some employees' employment was extended beyond the initial anticipated termination date indicated in their notice, (Id., ¶ 26). Decisions as to who should receive notice on April 8, 2002, of future termination at each Andersen site were made by local management, based on their best assessment of which employees were least critical to serve what business was anticipated to remain after the indictment. (Id., ¶ 27), During his or her paid job search period, each employee continued to be an employee of Andersen. His or her employment terminated at the earlier of either (1) the end of his or her job search period, (2) his or her voluntary termination of employment or (3) the receipt of an offer of replacement employment by another firm, (Id., ¶ 29).

  The notice Andersen gave a number of employees on or about April 8, 2002, did not terminate any employee's employment as of that date. (Def.'s 56. 1(a)(3) Statement ¶ 30). The earliest termination of employment pursuant to the April 8, 2002 notices occurred on April 23, 2002. This was because every employee was given at least two weeks of paid job search employment after April 8, 2002. (Id., ¶ 31). On Or about April 11, 2002, Andersen sent several local government offices notices that it anticipated that there may be layoffs at certain employment sites, including 33 West Monroe, either in excess of 500 or 33 percent of its workforce at those employment sites over a 180-day period. No notices sent to government offices indicated a particular number of anticipated layoffs in a thirty-day period. (Id., ¶ 32). Page 3

  At all relevant times between February 1, 2002, and April 8, 2002, the number of full-time employees at 33 West Monroe was in excess of 3,000. (Def's 56.1(a)(3) Statement ¶ 44). In the thirty-day period beginning with the period April 23, 2002, through May 22, 2002, and for several thirty day periods beginning each subsequent day thereafter, the number of full-time employees involuntarily terminated in each thirty-day period exceeded 50. (Id., ¶ 45). In the thirty-day period beginning with the period April 8 2002, through May 7, 2002, and going forward through the thirty-day period ending July 30, 2002, the number of full-time Andersen employees involuntarily terminated at 33 West Monroe was less than 500. (Id., ¶ 46).

  The largest number of full-time employees terminated from its 33 West Monroe employment site in any thirty-day period with the period of April 8, 2002, through May 7, 2002, and going forward through the thirty-day period ending July, 30, 2002, was 465. (Def.'s 56.1(a)(3) Statement ¶ 47). In each thirty-day period beginning April 8, 2002, through May 7, 2002, and continuing through a thirty-day period ending July 30, 2002, the number of Andersen employees involuntarily terminated from its 33 West Monroe employment site was less than 33 percent of the full-time employees employed at that employment site. (Id., ¶ 48).

  Andersen terminated 436 employees on 20 different dates at its 33 West Monroe employment site between April 23, 2002, and May 22, 2002. (Plaints.' 56.l(b)(3) Statement ¶ 53). Andersen terminated 154 employees on 22 different dates at its 33 West Monroe employment site between May 23, 2002, and June 21, 2002. (Id., ¶ 54), Andersen terminated 45 employees on 19 different dates at its 33 West Monroe employment site between June 22, 2002, and July 21, 2002. (Id. ¶ 55).

  Andersen gave Roquet notice on April 8, 2002, that she was terminated as of April 23, 2002. (Plaints,' 56.1(b)(3) Statement ¶ 56). Andersen gave Robinson notice on April 8, 2002, that she was terminated as of May 15, 2002. (Id., ¶ 57). Page 4

  ANALYSIS

  Andersen seeks to strike Plaintiffs' Cross-Motion for Partial Summary Judgment on Issue of Existence of Mass Layoff, arguing that Federal Rule of Civil Procedure 56 does not allow summary judgment be entered on an issue as sought by Plaintiffs. Instead, it only allows summary judgment on a claim.

  Federal Rule of Civil Procedure 56(d) allows the granting of partial summary judgment on less than a whole claim. See Fed.R.Civ.P. 56(d); Zapata Hermanos Sucessores v. Hearthside Baking Co., 313 F.3d 385, 391 (7th Cir. 2003). Accordingly, Defendant's Motion to Strike Plaintiffs' Cross-Motion for Partial Summary Judgment on Issue of Existence of Mass Layoff is denied.

  The WARN Act requires employers of 100 or more fall-time employees to give at least sixty days' advance notice of plant closings and mass layoffs to affected employees. See 29 U.S.C. § 2102(a). The only issue disputed by the parties in the instant case is whether the layoffs at the 33 West Monroe site constituted a "mass layoff as required by the WARN Act.

  The WARN Act defines a "mass layoff' as:
(3). . . a reduction in force which —
(A) is not the result of a plant closing; and
(B) results in an employment loss at a 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); or
(ii) at least 500 employees (excluding any part-time employees)
29 U.S.C. § 2101(a)(B)(3). To trigger the notice requirement under this section, if the employer lays off fewer than 500 employees in an action unrelated to a plant closing, the number of employees laid off must exceed 50 and must also exceed 33 percent of the total number of employees. The Department of Page 5 Labor regulations governing WARN enforcement provides that these figures be calculated at a "snapshot" date, the date notice is first required lo be given. See 20 C.F.R. § 639.5(a)(2).
  The WARN Act also provides for aggregating the number of laid-off employees. Section 2102(d) states:
(d) Determinations with respect to employment loss
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 al 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 ...

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