Mitchell v. Murray Energy Corporation et al

MOTION for Summary Judgment and Memorandum in Support

S.D. Ill.June 28, 2017

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS JETSON MITCHELL, individually and on ) behalf of all others similarly situated, ) ) Plaintiff, ) ) v. ) Case No. 17-CV-00444-NJR-RJD ) Judge: Hon. Nancy J. Rosenstengel MURRAY ENERGY CORPORATION, ) Judge: Hon. Reona J. Daly THE AMERICAN COAL COMPANY, INC. ) and DOE DEFENDANTS 1-20, ) ) Defendants. ) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT The above-captioned case must be dismissed with prejudice because Plaintiff’s sole cause of action arises from a statute whose condition precedent has not been triggered. Plaintiff relies entirely upon the WARN Act (the “Act”), a statute that applies only in the event of a “plant closing” or “mass layoff” at a “single site of employment.” 29 U.S.C. § 2101(a)(2)-(3). Plaintiff has not alleged that a plant closing occurred, and an insufficient ratio of employees have been laid off to qualify the action as a “mass layoff.” The facts, the arithmetic, and the statute are all clear. The complained-of April 22, 2017 layoffs near Galatia, Illinois fall short of a “mass layoff,” leaving Plaintiff without a valid cause of action. Consequently, Defendants are entitled to summary judgment as a matter of law. STATEMENT OF UNCONTROVERTED MATERIAL FACTS1 1. Defendant The American Coal Company, Inc. (“TACC”), is a corporate subsidiary of Defendant Murray Energy Corporation (collectively “Defendants”). Exh. A, ¶ 4 (Declaration of TACC’s Manager of Human Resources, Cindy Biggs). 1 Unless otherwise noted, the Facts described herein reflect conditions as of the effective date of the Layoffs, April 22, 2017. Exh. A, ¶ 62. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 1 of 16 Page ID #44 2 2. TACC has maintained coal mining operations at a facility southeast of Galatia, Illinois (the “Complex”) at all times material. Exh. A, ¶ 5. 3. TACC administers all payroll functions for TACC’s employees working at the Complex. Exh. A, ¶ 6. 4. TACC utilizes the same Federal Employer Identification Number for all employees working at the Complex. Exh. A, ¶ 7. 5. TACC’s employees at the Complex work in administrative offices, a preparation plant, a warehouse, a coal mine known as the “New Future Mine,” and, previously, a coal mine known as the “New Era Mine.” Exh. A, ¶ 8. 6. The New Era Mine was permanently closed and sealed on April 28, 2017. Exh. A, ¶ 9. 7. The administrative offices, the preparation plant, and a dormant warehouse are immediately adjacent to the entrance to the New Era Mine. Exh. A, ¶ 10. 8. An active warehouse is immediately adjacent to the entrance to the New Future Mine. Exh. A, ¶ 11. 9. The entrance to the New Era Mine is located 4 miles away from the entrance to the New Future Mine, as measured along the most direct public roadway route. Exh. A, ¶ 12. 10. The subterranean portion of the New Era Mine extends within 500 feet of the subterranean portion of the New Future Mine. Exh. A, ¶ 13. 11. TACC’s subterranean coal mining permit area is contiguous, and it encompasses all above-ground Complex structures. Exh. A, ¶¶ 14-18, Attachment 1. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 2 of 16 Page ID #45 3 12. Each mine site and building at the Complex sits in sufficiently close proximity to every other site and building as to permit rapid transportation of employees, equipment, and goods throughout the Complex. Exh. A, ¶ 19. 13. All Complex postal mail is addressed to the same mailing address. Exh. A, ¶ 20. 14. The processes and equipment used to mine coal at the New Future Mine are virtually identical to the processes and equipment previously used to mine coal at the New Era Mine. Exh. A, ¶ 23. 15. Once mined, employees transport coal to the preparation plant where it is prepared for transport to the market. Exh. A, ¶ 24. 16. Prior to the closing of the New Era Mine, coal from both the New Era Mine and New Future Mine was processed and stored at the preparation plant. Exh. A, ¶ 25. 17. Employees of all Complex facilities may enter the preparation plant and warehouse to obtain supplies and equipment when necessary. Exh. A, ¶ 26. 18. Prior to the closing of the New Era Mine, mining employees commonly interchanged between performing work at the New Future Mine and the New Era Mine. Exh. A, ¶ 27. 19. Prior to the closing of the New Era Mine, TACC utilized buses to facilitate interchange between employees at each mine. Exh. A, ¶ 28. 20. Prior to the closing of the New Era Mine, equipment was shared between the New Future Mine and the New Era Mine when necessary. Exh. A, ¶ 29. 21. Employees share vehicles used to transport coal and other items throughout the Complex. Exh. A, ¶ 30. 22. Prior to the closing of the New Era Mine, employees deposited mining refuse Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 3 of 16 Page ID #46 4 materials at a common refuse disposal area located adjacent to the preparation plant. Exh. A, ¶ 31. 23. All mining, preparation plant, and warehouse operations are overseen, managed, and supported by personnel based in the administrative offices. Exh. A, ¶ 32. 24. Personnel based in the administrative offices perform the tasks described in ¶ 23 through functions including, but not limited to, clerical and logistical work, day-to-day direction, and major business decision-making. Exh. A, ¶ 33. 25. Personnel based in the administrative offices perform tasks often referred to as “administration” and “surface support” functions. Exh. A, ¶ 34. 26. Employees of all Complex facilities commonly enter the administrative offices for purposes including meetings, mail pick-up, map retrieval, consultation with engineering staff, and human resources functions. Exh. A, ¶ 35. 27. Employees assigned to light duty perform custodial and/or security work at the administrative offices, the preparation plant, the active warehouse, and/or TACC’s security guard booths. Exh. A, ¶ 36. 28. Common management, administrative, and surface support personnel at the Complex manage and support operations at the New Future Mine, the New Era Mine, the preparation plant, and the warehouse. Exh. A, ¶ 37. 29. TACC reduced the number of employees employed at the Complex in April 2017 due to adverse mining conditions (“the Layoffs”). Exh. A, ¶ 38. 30. TACC employed 373 employees who had worked at least 6 of the prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 39. 31. In addition, TACC employed 6 employees who had not worked at least 6 of the Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 4 of 16 Page ID #47 5 prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 40. 32. TACC’s independent contractor, David Stanley Consultants, employed 9 employees who had worked at least 6 of the prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 41. 33. In addition, David Stanley Consultants employed 24 employees who had not worked at least 6 of the prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 42. 34. TACC’s independent contractor, and Redbird Machinery Repair, LLC, employed 2 employees who had worked at least 6 of the prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 43. 35. In addition, David Stanley Consultants employed 5 employees who had not worked at least 6 of the prior 12 months at the Complex on April 22, 2017, immediately prior to the Layoffs. Exh. A, ¶ 44. 36. David Stanley Consultants and Redbird Machinery Repair, LLC are the only entities, other than TACC, who regularly employed individuals at the Complex between March 23, 2017 and May 22, 2017. Exh. A, ¶ 45. 37. Two other entities, Morris Excavating and Marvel Excavating, have performed projects onsite, but none of those entities’ employees were onsite for at least 6 of the prior 12 months prior to April 22, 2017. Exh. A, ¶ 46. 38. The Layoffs were effectuated by TACC on April 22, 2017. Exh. A, ¶ 47. 39. The Layoffs resulted in separation from employment of 112 employees of TACC who had worked at least 6 of the prior 12 months at the Complex, as well as all 6 employees who Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 5 of 16 Page ID #48 6 had not worked at least 6 of the prior 12 months at the Complex. Exh. A, ¶ 48. 40. The Layoffs included an immediate reduction-in-force at the New Era Mine from 9 employees to 4 employees. Exh. A, ¶ 49. 41. TACC employed a total of 261 employees at the Complex on April 22, 2017, immediately following the Layoffs. Exh. A, ¶ 50. 42. During May 2017 and June 2017, TACC recalled 11 employees who had been laid off on April 22, 2017. Exh. A, ¶ 51. 43. The 11 employees recalled during May 2017 and June 2017 included 10 employees who had worked at the Complex at least 6 of the 12 months immediately preceding the Layoffs, and 1 employee who had not worked at the Complex at least 6 of the 12 months immediately preceding the Layoffs. Exh. A, ¶ 52. 44. The Layoffs also resulted in the cessation of work at the Complex for all employees of TACC’s independent contractors. Exh. A, ¶ 53. 45. Upon information and belief, David Stanley Consultants continues to locally employ 2 individuals whose work at the Complex ceased in conjunction with the Layoffs. Exh. A, ¶ 54. 46. Upon information and belief, Redbird Machinery Repair, LLC continues to locally employ 2 individuals whose work at the Complex ceased in conjunction with the Layoffs. Exh. A, ¶ 55. 47. TACC employed 371 employees at the Complex as of March 23, 2017. Exh. A, ¶ 56. 48. TACC’s independent contractors employed a total of 29 employees at the Complex as of March 23, 2017. Exh. A, ¶ 57. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 6 of 16 Page ID #49 7 49. TACC employed 257 employees at the Complex as of May 22, 2017. Exh. A, ¶ 58. 50. No additional reduction-in-force, beyond the Layoffs effectuated on April 22, 2017, occurred at the Complex within 30 days of April 22, 2017. Exh. A, ¶ 59. 51. TACC’s independent contractors employed no employees at the Complex as of May 22, 2017. Exh. A, ¶ 60. 52. TACC employed 4 fewer employees at the Complex as of May 22, 2017 than they employed immediately following the layoffs on April 22, 2017 due solely to voluntary separations and/or terminations for cause during the intervening time period. Exh. A, ¶ 61. STANDARD OF REVIEW Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant a motion for summary judgment if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir. 2001). The moving party must initially demonstrate the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In responding to a motion for summary judgment, Plaintiff may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(a). Further, Plaintiff must do more than simply show the existence of some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, he must set forth specific facts showing there is sufficient evidence to allow a verdict in his favor. Anderson, 477 U.S. at 249. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 7 of 16 Page ID #50 8 ARGUMENT I. The Act, Department of Labor, and Courts Have Defined the Standard for a “Mass Layoff” as a 33% Reduction in Force at a “Single Site of Employment.” Plaintiff’s sole cause of action rests upon his allegation that the layoffs at TACC’s New Future Mine near Galatia, Illinois constituted a “mass layoff” as defined in the Act. Complaint ¶¶ 1, 42, 42, 48. “The Act is only triggered [] if an employer conducts a plant closing or mass layoff.” Rowan v. Chicago Hous. Auth., 149 F. Supp.2d 390, 392 (N.D. Ill. 2001). Plaintiff has not alleged that a “plant closing” occurred. Thus, absent a showing that the Layoffs constituted a “mass layoff,” the Complaint’s WARN Act allegations (the sole cause of action) must fail. As Plaintiff acknowledges, the WARN Act defines a “mass layoff” as 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 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); Complaint ¶ 43. The Department of Labor (“DOL”) has defined the term “single site of employment” by stating, in relevant part: (1) A single site of employment can refer to either a single location or a group of contiguous locations. Groups of structures which form a campus or industrial park, or separate facilities across the street from one another, may be considered a single site of employment. . . . (3) Separate buildings or areas which are not directly connected or in immediate proximity may be considered a single site of employment if they are in reasonable geographic proximity, used for the same purpose, and share the Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 8 of 16 Page ID #51 9 same staff and equipment. An example is an employer who manages a number of warehouses in an area but who regularly shifts or rotates the same employees from one building to another. 20 C.F.R. § 639.3.2 Courts have elaborated further upon the standard for a “single site of employment,” noting that “geographic proximity provides the touchstone in determining what constitutes a ‘single site[,]’” and so “[c]ontinguous facilities or those in close geographic proximity are generally single sites of employment[.]” Teamsters Local Union 413 v. Driver’s, Inc., 101 F.3d 1107, 1109 (6th Cir. 1996) citing 20 C.F.R. § 639.3. Additionally, factors such as “sharing of staff and equipment, and sharing the same operational purpose” can show that even non- contiguous sites comprise a “single site of employment.” Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1281 (8th Cir. 1996) citing Williams v. Phillips Petroleum Company, 23 F.3d 930 (5th Cir.1994); International Union, United Mine Workers v. Jim Walter Resources, Inc., 6 F.3d 722 (11th Cir.1993). II. TACC’s Mining Complex near Galatia, Illinois Constitutes a “Single Site of Employment.” All conceivable indicia of a “single site of employment” exist at TACC’s Complex.3 The Complex includes administrative offices, a preparation plant, a warehouse, the New Future Mine, and, previously, the New Era Mine. Statement of Uncontroverted Material Facts (“SUMF”), ¶¶ 5, 6. Importantly, all of these facilities are located within a contiguous area delineated by 2 This regulation “filled in the gap” created by the Act’s failure to define “single site of employment.” Wiltz v. MG Transport Services, Inc., 128 F.3d 957 (6th Cir. 1997). As a reasonable interpretation of the Act, the DOL’s definition of “single site of employment” is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 3 Murray Energy Corporation (“Murray”)’s sole connection to this matter is its role as TACC’s corporate parent. Exh. A, ¶ 4. Murray joins in this Motion for Summary Judgment and, like TACC, is entitled to Summary Judgment because no “mass layoff” has occurred. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 9 of 16 Page ID #52 10 TACC’s coal mining permit rights. SUMF ¶ 11. Although the entrance to the New Era Mine is located 4 miles away from the entrance to the New Future Mine, the subterranean portions of the two mines come within 500 feet of one another. SUMF ¶¶ 9, 10. Above ground, the administrative offices, the preparation plant, and a dormant warehouse are immediately adjacent to the entrance to the New Era Mine, while the active warehouse is immediately adjacent to the entrance to the New Future Mine. SUMF ¶¶ 7, 8. Each site and building’s location sits in sufficiently close proximity to every other site and building as to permit rapid transportation of employees and goods throughout the Complex. SUMF ¶ 12. As a result, Plaintiff cannot genuinely dispute that the “touchstone” of “single site of employment” determinations, contiguous property and geographic proximity, applies to all facilities at the Complex. Driver’s, Inc., 101 F.3d at 1109. Furthermore, full operational integration exists throughout the Complex. The New Future Mine and New Era Mine both hosted TACC’s coal mining operations prior to April 28, 2017. SUMF ¶¶ 5, 6. Employees performed those operations using virtually identical processes and equipment at each mine. SUMF ¶ 14. Employees also transported that coal from both mines to the preparation plant for processing and storage. SUMF ¶¶ 15, 16. When supplies and equipment are needed, employees stationed at all Complex facilities may enter the preparation plant and warehouse to obtain supplies and equipment. SUMF ¶ 17. Prior to the closing of the New Era Mine, TACC utilized buses to facilitate regular interchange between employees working at both mines. SUMF ¶¶ 18, 19. Employees working at the two mines also shared equipment during that time period, and employees continue to share vehicles used to transport coal and other items throughout the Complex. SUMF ¶¶ 20, 21. They even deposited refuse mining materials at a common refuse disposal area. SUMF ¶ 22. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 10 of 16 Page ID #53 11 All mining, preparation plant, and warehouse operations are overseen and managed by personnel based in the administrative offices. SUMF ¶ 23. These individuals, including management, perform all tasks necessary to support the Complex’s other operations, from clerical and logistical work, to day-to-day direction, to major business decision-making. SUMF ¶ 24. These “administration” and “surface support” functions support the personnel and functions at the mines, the preparation plant, and the warehouse. SUMF ¶¶ 25, 28. TACC personnel, using the same Federal Employer Identification Number, administer all payroll functions for Complex employees from the administrative offices. SUMF ¶¶ 3, 4. Those employees also collect the Complex’s postal mail, which is all addressed to the same mailing address. SUMF ¶ 13. Accordingly, employees of all Complex facilities commonly enter the administrative offices for mail pick-up, as well as for meetings, map retrieval, consultation with engineering staff, and human resources functions, among other reasons. SUMF ¶ 26. Furthermore, mining and preparation plant employees assigned to light duty may perform custodial and security work at the administrative offices, the preparation plant, the active warehouse, and TACC’s security guard booths. SUMF ¶ 27. Consequently, even leaving aside the indisputably contiguous and geographically proximate nature of the Complex’s facilities, the Complex qualifies as a single site of employment because its facilities share employees, equipment, common management, and a unified operational purpose. Rifkin, 78 F.3d at 1281. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 11 of 16 Page ID #54 12 III. The Layoffs Did Not Trigger the WARN Act Because Less Than 33% of the Complex’s Employees Were Affected. A. Only 28.4% of Full-Time Complex Employees Suffered Losses of Employment Due to the Layoffs. TACC employed 373 full-time and 6 part-time employees at the Complex immediately prior to the Layoffs. SUMF ¶¶ 30, 31.4 Additionally, TACC’s independent contractors, David Stanley Consultants and Redbird Machinery Repair, LLC, employed a combined total of 11 full- time employees and 29 part-time employees onsite at that time.5 SUMF ¶¶ 32, 34. The only other entities present, Morris Excavating and Marvel Excavating, also performed irregular short- term projects around that time, but none of those companies’ employees were full-time employees. SUMF ¶¶ 36, 37. As a result, a total of 384 full-time employees (373 of TACC and 11 of its contractors) were employed at the Complex immediately prior to the Layoffs. The Layoffs on April 22, 2017 affected 112 of TACC’s full-time employees and all 6 of their part-time employees, leaving 261 full-time employees at the Complex immediately following the Layoffs. SUMF ¶¶ 38-39, 41. However, TACC recalled 10 full-time employees and 1 part-time employee in May and June 2017, reducing the number of TACC’s actual full- time layoffs to 102. 29 U.S.C. § 2101(a)(6)(B), (b)(2); SUMF ¶¶ 42, 43. 4 This Motion uses the term “part-time employees” in accordance with the WARN Act’s definition of employees who worked onsite fewer than 6 of the preceding 12 months. 29 U.S.C. § 2101(a)(8). Part-time employees are excluded from consideration in determining whether a “mass layoff” has occurred under the Act. 29 U.S.C. § 2101(a)(3)(B)(i). This Motion also refers to all employees who are not statutory “part-time employees” as “full-time employees.” 5 Defendants assume for the purposes of this Motion, but do not concede, that TACC’s independent contractors’ full-time employees must be considered for the purposes of “mass layoff” calculations. Defendants reserve the right to later contest that proposition on both factual and legal grounds. It should be noted that, since all 11 full-time employees of the contractors were laid off, and only 4 were locally transferred, exclusion of those employees from the figures described below would lower the layoff percentage from 28.4% to 27.3% (102 of TACC’s full- time employees laid off ÷ 373 full-time TACC employees pre-layoff = 27.3%). SUMF ¶¶ 44-46. Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 12 of 16 Page ID #55 13 Additionally, all of TACC’s contractors’ employees were affected by the Layoffs, including all 11 of their full-time employees. SUMF ¶ 44. The contractors have locally transferred 4 of those 11 full-time employees, leaving a total of 7 full-time contractor employee layoffs. 29 U.S.C. § 2101(b)(2); SUMF ¶¶ 45, 46. Consequently, the total number of all losses of employment due to the Layoffs is 109 (102 of TACC’s employees and 7 of its contractors). Those 109 laid-off employees constitute 28.4% of the 384 total employees employed prior to the Layoffs. As a matter of simple arithmetic, the Layoffs did not constitute a “mass layoff” of at least 33% under the Act. 29 U.S.C. § 2101(a)(3). The following table summarizes these calculations: TACC’s Total Employees Pre-Layoff 379 TACC’s Part-Time Employees Pre-Layoff 6 TACC’s Full-Time Employees Pre-Layoff 373 Total Independent Contractor Employees Pre-Layoff 40 Part-Time Independent Contractor Employees Pre-Layoff 29 Full-Time Independent Contractor Employees Pre-Layoff 11 Total Full-Time Employees Pre-Layoffs [373+11] 384 TACC’s Total Employees Post-Layoff 261 TACC’s Part-Time Employees Post-Layoff 0 Independent Contractor Employees Post-Layoff 0 Total Full-Time Employees Post-Layoff 261 TACC’s Recalled Full-Time Employees 10 Transferred Full-Time Independent Contractor Employees 4 Total Recalls and Transfers 14 Total Affected Full-Time Employees Remaining Employed [261+14] 275 Total Full-Time Layoffs [384-275] 109 Full-Time Layoff Ratio [109 ÷ 384] 28.4% Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 13 of 16 Page ID #56 14 B. Plaintiff Incorrectly Alleges that a Mass Layoff Occurred Because He Fails to Recognize that the Complex is a Single Site of Employment. Plaintiff imprecisely alleges that “120-185 full-time employees out of 266 experienced an employment loss at the single site of employment.” Complaint ¶ 48.6 The Complaint implies, and Defendants assume upon information and belief, that Plaintiff’s denominator of “266” reflects only his estimate of employees employed at the New Future Mine prior to the Layoffs. Plaintiff’s failure to account for the other 118 employees at the Complex defeats his assertion that a “mass layoff” occurred, and thus the Complaint itself. Furthermore, even if Plaintiff could incorrectly discount the New Era Mine from his calculations, such a mistake would only take him further below the 33% threshold. The Layoffs included a reduction in force at the New Era Mine from 9 to 4 employees. SUMF ¶ 40. The erroneous exclusion of the New Era Mine would thus reconfigure the calculations to 104 layoffs out of 375 employees, for an even lower layoff percentage of 27.7%. Plaintiff attempts to gerrymander his way to a WARN Act claim by excluding the Complex’s administrative offices, preparation plant, and warehouse from his “mass layoff” calculations. That attempt flies in the face of the WARN Act’s “single site of employment” clause, the DOL’s reasoned guidance, and the Courts’ emphasis on geographic proximity, common management, employees, equipment, and operational purpose. 29 U.S.C. § 2101(a)(3); 20 C.F.R. § 639.3; Driver’s, Inc., 101 F.3d at 1109; Rifkin, 78 F.3d at 1281. 6 Plaintiff does not, and could not truthfully, allege any further employment losses due to a reduction-in-force within the Act’s 30-day periods surrounding April 22, 2017. 29 U.S.C. § 2101(a)(3); SUMF ¶ 49. The total number of onsite employees actually increased between March 23, 2017 and April 22, 2017. Compare SUMF ¶¶ 47, 48 with ¶¶ 30-36. Following the Layoffs, the number of onsite employees decreased by 4 from April 22, 2017 to May 22, 2017 solely due to voluntary separations and/or terminations for cause during the intervening time period. SUMF ¶¶ 41, 49-52; 29 U.S.C. § 2101(a)(6)(A). Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 14 of 16 Page ID #57 15 Absent the employees Plaintiff seeks to exclude, coal at the Complex would be unfit for sale without a preparation facility, and the supplies and equipment used to mine that coal would rust, rot, or be stolen without a warehouse. Meanwhile, miners would lack the direction, support, coordination, and equipment supplied from within the administrative offices. These operational realities, combined with geographic proximity, underpin the Act’s conception of a “single site of employment.” When those employees are properly included, Plaintiff cannot dispute that the Layoffs affected less than 33% of the pre-Layoff workforce. As a result, the WARN Act has not been triggered by a “mass layoff,” and Plaintiff’s sole cause of action must be dismissed. CONCLUSION This case should be dismissed with prejudice because no genuine issues of material fact exist. TACC has not laid off the requisite ratio of employees at the Complex to implicate the WARN Act. Accordingly, the Defendants are entitled to judgment as a matter of law, and for such other and further relief as this Court deems just and proper. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ R. Lance Witcher R. Lance Witcher, IL Bar #6279646 (Lead Counsel) Sarah J. Kuehnel, IL Bar # 6301817 Joseph T. Charron, MO Bar # 67992 7700 Bonhomme Avenue, Suite 650 St. Louis, Missouri 63105 Telephone: 314.802.3935 Facsimile: 314.802.3936 lance.witcher@ogletreedeakins.com ATTORNEYS FOR DEFENDANTS Date: June 28, 2017 Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 15 of 16 Page ID #58 CERTIFICATE OF SERVICE I hereby certify that on June 28, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system to be served on the following registered participants: Kevin P. Green, Thomas P. Rosenfeld, and Thomas J. Lech. Thomas P. Rosenfeld Thomas J. Lech Kevin P. Green GOLDENBERG HELLER & ANTOGNOLI, P.C. 2227 South State Route 157 Edwardsville, IL 62025 tom@ghalaw.com tlech@ghalaw.com kevin@ghalaw.com ATTORNEYS FOR PLAINTIFF /s/ R. Lance Witcher ATTORNEY FOR DEFENDANTS 30257164.1 Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 16 of 16 Page ID #59 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 1 of 8 Page ID #60 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 2 of 8 Page ID #61 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 3 of 8 Page ID #62 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 4 of 8 Page ID #63 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 5 of 8 Page ID #64 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 6 of 8 Page ID #65 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 7 of 8 Page ID #66 Case 3:17-cv-00444-NJR-RJD Document 14-1 Filed 06/28/17 Page 8 of 8 Page ID #67