RENECIA JOHNSON, LORRAINE KENNEDY, LYNETTE ADDISON, individually v. TELESPECTRUM WORLDWIDE, INC., a Delaware corporation Renecia Johnson, Lorraine Kennedy

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 01-1985
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RENECIA JOHNSON, LORRAINE KENNEDY, LYNETTE ADDISON,
individually and on behalf of all others similarly situated
v.
TELESPECTRUM WORLDWIDE, INC., a Delaware corporation
Renecia Johnson, Lorraine
Kennedy and Lynette Addison,
Appellants
_____________
Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 97-cv-00433)
District Judge: Honorable Sue L. Robinson
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Submitted Under Third Circuit LAR 34.1(a)
January 7, 2002
Before: MANSMANN, RENDELL and FUENTES, Circuit Judges.
(Filed January 15, 2002)
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MEMORANDUM OPINION OF THE COURT
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MANSMANN, Circuit Judge.
Renecia Johnson, Lorraine Kennedy and Lynette Addison, the named
plaintiffs in this class action on behalf of all persons formerly employed by Telespectrum
Worldwide, Inc. at its site in Wilmington, Delaware, sought statutory damages as a result
of Telespectrum’s alleged violation of the WARN Act. Plaintiffs appeal from an order
of the District Court granting summary judgment to Telespectrum. Because the District
Court correctly held that Plaintiffs failed to establish a prima facie case where they failed
to establish the threshold number of employment losses required to trigger the protection
of the WARN Act, we will affirm the order of the District Court.
I.
The parties are familiar with the factual and procedural history underlying
this matter. Accordingly, we turn directly to the merits of Plaintiffs’ appeal.
Summary judgment is proper "against a party who fails to make a showing
sufficient to establish the existence of an element essential to the party’s case and on
which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In this case, Plaintiffs have the burden of proving that a "plant
closing" or "mass layoff" under the WARN Act occurred. Under the plain statutory
language, this entails a showing that (1) 50 employees, not including part-time
employees, (2) at a single site of employment, (3) suffered an employment loss. See 29

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U.S.C. 2101 and 2102. Thus, at the summary judgment stage, Plaintiffs were
required to adduce evidence from which a jury could reasonably conclude that 50 or
more employees at the Wilmington site suffered an employment loss. See, e.g., United
Mine Workers of America v. Florence Mining Co., 855 F.Supp. 1466, 1476 (W.D. Pa.
1994); May v. Shuttle, Inc., 129 F.3d 165, 174 (D.C. Dir. 1997).
We have carefully reviewed the record in the matter, devoting attention to
the employee information and summaries submitted to the District Court. We find that
the District Court correctly concluded that Plaintiffs presented insufficient evidence to
create a genuine issue of material fact as to whether 50 or more employees (other than
excluded employees) experienced an employment loss.
After reviewing the questionnaires, the District Court concluded that less
than 50 individuals had been identified and noted that much of the information provided
by Plaintiffs in the form of a summary chart was incomplete and inaccurate. Indeed, of
the 55 employees Plaintiffs contends meet the threshold requirements, five indicated they
had "quit" employment at Telespectrum. Plaintiffs assert these employees should
nonetheless be counted because they may have ceased employment due to a lack of work,
Telespectrum’s closing of its night shift or its announcement of closing of the
Wilmington site. To the contrary, WARN decisions have uniformly held that employees
who voluntarily forego an opportunity to continue their employment do not suffer an
employment loss, and the Final Rules indicate that the voluntariness of a departure may
be called into question only in light of evidence of coercion, creation of a hostile or
intolerable work environment, application of undue pressure by the employer or similar
circumstances. Plaintiffs have offered no such evidence and accordingly those
employees who quit are properly deducted from the number of employees suffering
"employment loss." Similarly, Plaintiffs assert that a sixth employee who indicated she
ceased employment "over a misunderstanding with a supervisor" should be counted
because she may have quit or her discharge may not have been "for cause." Again,
Plaintiffs have failed to provide any evidence to establish a question of material fact as to
whether this employee suffered an employment loss. Because Plaintiffs have clearly not
met the threshold requirements necessary to trigger notice provisions under the WARN
Act, we need not address the remaining disputed employees.
II.
For the reasons set forth above, we will affirm the order of the District
Court.
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To the Clerk:
Please file the foregoing opinion.
/s/ Carol Los Mansmann
Circuit Judge
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-1985
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RENECIA JOHNSON, LORRAINE KENNEDY, LYNETTE ADDISON,
individually and on behalf of all others similarly situated
v.
TELESPECTRUM WORLDWIDE, INC., a Delaware corporation

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Renecia Johnson, Lorraine
Kennedy and Lynette Addison,
Appellants
_____________
Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 97-cv-00433)
District Judge: Honorable Sue L. Robinson
_____________
Before: MANSMANN, RENDELL and FUENTES, Circuit Judges.
JUDGMENT
This cause came to be considered on the record from the United States
District Court for the District of Delaware and was submitted under Third Circuit LAR
34.1(a) on January 7, 2002.
On consideration whereof, it is now here ordered and adjudged by this
court that the judgment of the District Court entered on March 23, 2001, be and the same
is hereby affirmed.
Costs taxed against appellants.
ATTEST:
Clerk
Dated: January 15, 200

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