Oil, Chemical and Atomic Workers International Union , Local 7-629, Afl-Cio v. Rmi Titanium Company

36 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
For the foregoing reasons, I would hold that plaintiffs-
appellants have raised legitimate fact questions on whether
additional employees should be counted. As a result, I would
reverse the district court’s grant of summary judgment to
defendant and remand the case for trial.
*The Honorable Douglas W. Hillman, United States District Judge
for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0016P (6th Cir.)
File Name: 00a0016p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
OIL, C HEMICAL AND ATOMIC
W ORKERS INTERNATIONAL
UNION , LOCAL 7-629,
AFL-CIO, et al.,
Plaintiffs-Appellants,
v.
RMI TITANIUM C OMPANY ,
Defendant-Appellee.
;>

1
No. 98-4336
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 92-01679—Paul R. Matia, Chief District Judge.
Argued: November 3, 1999
Decided and Filed: January 12, 2000
Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
Judge; HILLMAN,* District Judge.

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2 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
_________________
COUNSEL
ARGUED: David A. Santacroce, SUGAR LAW CENTER
FOR ECONOMIC AND SOCIAL JUSTICE, Detroit,
Michigan, for Appellants. Barton A. Bixenstine, ULMER &
BERNE, Cleveland, Ohio, for Appellee. ON BRIEF: David
A. Santacroce, Julie H. Hurwitz, SUGAR LAW CENTER
FOR ECONOMIC AND SOCIAL JUSTICE, Detroit,
Michigan, Theodore E. Meckler, Cleveland, Ohio, for
Appellants. Barton A. Bixenstine, ULMER & BERNE,
Cleveland, Ohio, for Appellee.
DAUGHTREY, J., delivered the opinion of the court, in
which MARTIN, C. J., joined. HILLMAN, D. J. (pp. 12-36),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiffs, Oil, Chemical and Atomic Workers’ (OCAW)
Union Local 7-629, Kenneth Allen, and a class of OCAW
members separated from employment during July and August
1991, advanced a claim for damages under the Worker
Adjustment Retraining and Notification Act of 1988 (WARN)
against the defendant, RMI Titanium Company. The
plaintiffs alleged that by failing to give its employees
adequate notice of the layoffs, the company violated
provisions of the Act. In response to cross-motions for
summary judgment, the district court ruled in the company’s
favor, finding that the plaintiffs had failed to establish the
requisite number of layoffs to trigger the notice provisions
under WARN. We affirm.
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
35
acknowledge the existence of facts in the record (elicited from
defendant’s own agents) which directly contradict its present
claim that the employees were part-time. First, in its answers
to appellants’ interrogatories, appellee represented that none
of the employees laid off between April 23, 1991 and
November 17, 1991 worked less than 20 hours per week in
the last 90 days of work or the actual time worked, whichever
is shorter. J.A. pp. 178-79. In addition, in the affidavit of
Jerome Bennett, attached to appellee’s motion for summary
judgment and contained in the appendix, Bennett averred that
13 of the 21 employees whose voluntary recall ended between
July 22, 1991 and August 21, 1991 were full time employees.
Bennett Aff. ¶ 9, J.A. p. 201. Twenty-one of the 27
employees at issue here were returned to layoff on August 5,
1992, and only one other employee’s voluntary recall ended
during the period between July 22, 1991 and August 21, 1991.
J.A. pp. 151-52 (V. Johnson (whose regular layoff date is July
22, 1991) is shown as returning to layoff after voluntary recall
on August 19, 1991).
These record statements made by defendant-appellee create
a genuine issue of material fact concerning the full-time status
of at least 13 or as many as all of the 27 employees who were
returned to layoff following voluntary recall between August
and September 1991. Accordingly, appellee is not entitled to
summary judgment on the basis of this alternative argument.
III.
In upholding the district court’s grant of summary
judgment, the majority gives conclusive weight to the
evidence adduced by the employer while disregarding or
discounting both circumstantial and direct evidence presented
by plaintiffs-appellants. In our judicial system, it is the
appointed finders of fact who alone are permitted to sort
through such conflicting evidence, to determine credibility,
and to make reasonable inferences. Because the majority’s
decision oversteps its role, and out of respect for the structure
of our judicial system, I respectfully dissent.

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34 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
Activity in the Voluntary Layoff Program, J.A. pp. 150-52.
In light of this pattern, defendant-appellee’s failure to
anticipate that at least two employees would request voluntary
layoff during the relevant 90 days was patently unreasonable.
Appellee next claims without discussion that layoffs caused
by the voluntary layoff program resulted from a cause that
was separate and distinct from RMI’s overall economic
difficulties. I reject that claim. Although the 27 voluntarily
recalled employees were returned to layoff status as the result
of the return to work of more senior employees, it is not this
change that triggered their employment loss. Instead, as a
direct result of RMI’s economic difficulties, these employees,
once returned to layoff status, lost all opportunity for further
recalls. Specifically, as the result of the dramatic number of
new layoffs of more senior employees, these employees
experienced an employment loss because they lost any
reasonable expectation of recall and their previously
temporary layoffs were rendered permanent.
Accordingly, while their return to layoff status in and of
itself was arguably tied to the separate cause of the more
senior employees having voluntarily returned to work under
the voluntary layoff program, their employment loss, the
relevant consideration at issue here, occurred not because they
were placed on layoff, but because that layoff was no longer
temporary and instead continued for a period of greater than
six months. 29 U.S.C. § 2101(6)(B). The employment loss,
therefore, was caused not by the voluntary layoff program, but
by the same economic causes precipitating the rest of the
layoffs occurring during the 90-day period, that is, the
accelerating economic downturn of the company.
Appellee’s final argument is that all of the 27 employees
were part-time employees and therefore were not countable in
determining whether a mass layoff occurred. See 29 U.S.C.
§ 2102(a)(3)(B) (excluding part-time employees). In support
of its assertions, appellee makes absolutely no citations to the
record. Moreover and more significantly, appellee fails to
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
3
I. PROCEDURAL AND FACTUAL BACKGROUND
The facts are largely undisputed. RMI Titanium
experienced a downturn in its business beginning in 1990,
which precipitated a series of layoffs as part of a continuing
reduction in its workforce, beginning with an initial layoff of
60 unionized employees in 1990. In January 1991, the
company warned union representatives of the need for further
reductions and laid off another 29 employees in February
1991. Despite these efforts, RMI posted losses of $2.5
million in the first six months of 1991.
During the spring of 1991, approximately 197 unionized,
non-salaried employees and 72 non-unionized, salaried
employees were working full-time at RMI’s Metals Plant. Of
the unionized employees,14 senior union members
participated in a “voluntary layoff” program negotiated with
RMI in 1986 and made available to employees during periods
of workforce reduction. Employees taking a voluntary layoff
received one month’s unpaid leave, subject to renewal, and
were replaced by union members previously (involuntarily)
laid off from the plant who possessed similar job skills. At
the end of the senior employee’s voluntary layoff, the
replacement was returned to “layoff” status, unless he or she
was asked to replace another senior employee.
Of the 72 non-unionized employees working at the Metals
Plant during the first half of 1991, approximately 13
employees were assigned to a research and development
project referred to internally as the Electrolytic Titanium
Project (ETP). The project’s objective was the development
of a variation on titanium production processes in use at the
Metals Plant. RMI shared funding responsibilities for this
project with an Italian company, Ginatta Torino Titanium.
The company continued its layoffs during the summer of
1991, laying off 85 additional unionized workers in July and
August, and five non-unionized employees, including three
members of the ETP team. Also during this time,

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4 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
approximately 35 senior unionized employees took one- or
two-month leaves under the voluntary layoff program; they
were replaced by previously separated junior employees
recalled from and then returned to layoff status. Apparently,
none of the employees laid off during this period received
advance notice of their change in job status.
Despite these measures, the company’s financial
misfortunes continued, and it commenced shutting down
some of its production facilities in January 1992. The Metals
Plant closed on February 15, 1992. Later that year, the
plaintiffs brought this WARN action against RMI, claiming
violation of the notice provisions of the Act.
II. DISCUSSION
WARN Liability
The Worker Adjustment Retraining and Notification Act
provides, in pertinent part, that:
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 . . . 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.
29 U.S.C. § 2102(a) (1994). The purpose of this provision is
“to ensure that ‘workers receive advance notice of plant
closures and mass layoffs that affect their jobs.’” Kildea v.
Electro-Wire Products, Inc., 144 F.3d 400, 405 (6th Cir.
1998) (quoting Marques v. Telles Ranch, Inc., 131 F.3d 1331,
1333 (9th Cir. 1997)). Under WARN, an “affected
employee” is an employee “who may reasonably be expected
to experience an employment loss as a consequence of a
proposed plant closing or mass layoff by their employer.” 29
U.S.C. § 2101(a)(5). An “employer” is “any business
enterprise that employs . . . 100 or more employees, excluding
part-time employees.” 29 U.S.C. § 2101(a)(1)(A). An
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
33
“unforeseeable business circumstances.” Title 29 United
States Code, § 2102(B)(2)(A) provides that
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.
Besides making the blanket assertion that it is protected by the
exception, defendant-appellee makes no attempt to analyze
the applicability of the statutory provision.
By its plain terms, the quoted exception is designed to
provide a mechanism for an employer to engage in a mass
layoff with less than 60 days of notice based on circumstances
in which an employer had been prevented from projecting the
need for or the size of layoffs because business circumstances
were not reasonably foreseeable. In other words, the
exception provides an escape valve to the length of notice
period required in those circumstances in which the employer
was unable to project the need for mass layoffs 60 days in
advance in order to provide the required notice. Here,
defendant-appellee instead attempts to use the provision not
to excuse the unknown economic necessity for layoffs, but to
excuse its need to project with some degree of precision how
many employees would use the voluntary layoff program.
Even if the provision could be interpreted to apply to RMI’s
inability to project how many people might be on voluntary
recall, defendant-appellee has failed to create a genuine issue
of fact as to whether it was reasonably foreseeable that the
number of voluntary layoffs in the 90-day period would equal
or exceed two, the total number of additional employees
required to trigger a mass layoff under WARN. The record
reflects that between September 1990 and September 1991 an
average of nine employees per month participated in the
voluntary layoff program, and in no month did fewer than
three employees participate in the program. See Summary of

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32 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
on layoff, with their original layoff date, while the more
senior active employees are treated as remaining on active
status. As a consequence, defendant-appellee suggests, the
layoffs of these 27 employees as regular employees must be
considered under the contract to have occurred prior to the
WARN period at issue here, when they were first laid off, and
should not be countable as relevant employment losses.
As I previously noted, however, contract rights under the
collective bargaining agreement are not affected by and have
no effect on the rights of employees under WARN. 29 U.S.C.
§ 2105. Contractual terms, therefore, may not be used to
either expand or contract the statutory language.
In addition, under the regulations, even if these workers are
considered temporary replacement employees as opposed to
returning laid-off regular employees, they must be counted
under WARN as employees for purposes of determining
whether a mass layoff has occurred. Pursuant to 20 C.F.R.
§ 639.3(c)(2),
Workers, other than part time workers, who are exempt
from notice under section 4 of WARN [29 U.S.C.
§ 2103(1)] are nonetheless counted as employees for
purposes of determining coverage as a . . . mass layoff.
For example, if an employer closes a temporary project
on which 10 permanent and 40 temporary workers are
employed, a covered plant closing has occurred although
only 10 workers are entitled to notice.
(Emphasis added.) For both reasons, I am persuaded that
contractual classification of these employees neither has nor
could have any bearing on whether they should be counted
under WARN for purposes of determining whether a mass
layoff has occurred.
Defendant-appellee next contends that even if the 27
employees should otherwise be counted in determining the
threshold number under WARN, they fall within a statutory
exception to being counted because they were caused by
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
5
“employment loss” is “an employment termination, other than
a discharge for cause, voluntary departure, or retirement . . .
a layoff exceeding 6 months, or . . . a reduction in hours of
work of more than 50 percent during each month of any 6-
month period.” 29 U.S.C. § 2101(a)(6).
Certain statutory thresholds apply in order for a layoff or
sequence of layoffs to constitute a “mass layoff” and subject
an employer to liability under WARN:
[T]he 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 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)(2). In order 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.
Department of Labor regulations governing WARN
enforcement require that these figures be calculated at a
“snapshot”date, the date notice is first required to be given.
See 20 C.F.R. § 639.5(a)(2) (1999). Even where the number
of layoffs does not exceed both 50 and 33 percent of the total
number of employees, however, layoffs occurring in separate
reduction actions may be aggregated into a “mass layoff” if
each set of layoffs involves fewer workers than required by

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6 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
the two statutory thresholds and all layoffs occur within the
same 90-day period. See 29 U.S.C. § 2102(d). Where this is
the case, the employer will be liable under WARN for failure
to notify “unless [it] 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 [WARN].” Id.
In this case, the parties stipulate that RMI employed 269
workers on the “snapshot” date for the first of the layoffs in
question, May 23, 1991. All parties also agree that 85
unionized and two non-unionized employees were laid off
during the 90-day period following the initial layoffs, and
that these layoffs may be added together to make 87 total
layoffs, or 32.34 percent of the total employees. The parties
disagree as to the district court’s conclusion that neither the
layoffs of the three non-unionized members of the ETP team
nor the layoffs of 27 OCAW members after temporary recall,
events that took place during the same 90-day period, should
be counted with the other layoffs in order to reach the “mass
layoff” threshold for WARN liability.
ETP Employees
The appellants argue that the ETP layoffs, like the earlier
layoffs of unionized employees, resulted from “[RMI’s]
continuing loss of income and resulting financial decline”
and, therefore, that RMI failed to demonstrate “separate and
distinct actions and causes” for the ETP layoffs that would
allow it to avoid WARN liability. See 29 U.S.C. § 2102(d).
RMI argues in response that the layoffs of the three ETP
employees were due to the failure of project co-sponsor
Ginatta to pay its required share of expenses. The company
supported its summary judgment motion on this point with
the affidavit of Jerome Bennett, who at the time of the layoffs
in question was an RMI executive in charge of employee
relations. Bennett’s affidavit referred to a letter from John F.
Hornbostel, Jr., RMI’s general counsel, to Dr. Marco V.
Ginatta, dated September 5, 1991, advising Ginatta that, since
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
31
2Further, even were it relevant whether the contract rights at issue
inure solely to the employees, the district court’s finding that the
voluntary layoff program operates solely for the benefit of employees is
unsupported by the record. Indeed, the record reflects that the employer
paid only the wages to which the replacement worker was entitled, not the
rate of the more senior employee on voluntary layoff. Bennett dep., J.A.
p. 372. Arguably, at least, the benefits also accrued to the employer.
unfair to penalize the employer for permitting use of the
voluntary layoff program.
I disagree. By the explicit terms of the statute, WARN
provisions are to have no effect on contractual rights. See 29
U.S.C. § 2105 (“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 . . . .”). As a result, the reasons for and
the existence of a contractual provision governing voluntary
layoffs is irrelevant to the interpretation or reach of the
statute. Moreover, because the employer was or should have
been aware that WARN required the employer to consider the
impact on temporarily laid off workers as well as active
employees, the employer is not unfairly burdened by
considering the impact of its reduction in force on the
employment of temporarily laid off workers who had the
potential to be voluntarily recalled. Finally, in interpreting
statutory language, it is hardly the responsibility of the court
to determine what statutory provisions are “fair” in light of
the employer’s contractual obligations.2 For all these reasons,
the district court erred in concluding that it was unfair to
include the 27 employees in the total number of laid off
employees.
Defendant-appellee next argues that even if the court rejects
the reasoning of the district court, the 27 temporarily recalled
employees should be excluded because the contract provides
that employees who are temporarily recalled under the
voluntary recall program shall be treated as if they remained

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30 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
employment loss as the result of the employer’s economic
downturn and overall reduction in force. Defendant-
appellee’s layoffs of substantial numbers of additional
employees during July and August 1991 had the effect of
eliminating these 27 employees’ reasonable expectations of
recall and converted their layoffs into qualifying
“employment losses” under the statute when they exceeded
six months. 29 U.S.C. § 2101(a)(6)(B) (defining an
employment loss as a layoff exceeding six months). As a
result, they experienced an employment loss at the time their
voluntary layoffs in August and September 1991 were
rendered permanent. See Jones, 748 F. Supp. at 1284-85
(holding that it would be inconsistent with the meaning and
purpose of WARN to conclude that temporarily laid off
workers were not “affected employees” when their
employment was permanently terminated).
I therefore am persuaded that the majority’s conclusion that
the layoffs of the 27 employees did not constitute a reduction
in force misconstrues the structure of the statute and violates
the clear statutory language, the purpose of the statute, and the
implementing regulations. As a result, I conclude that both
the district court and the majority of this court have erred in
excluding the voluntarily recalled employees as a matter of
law from the mass-layoff threshold count on the basis that the
layoffs of these employees resulted in no lost positions.
In light of my conclusion, I must address the alternative
rationale offered by the district court in support of its
decision, together with the remaining arguments raised by
defendant-appellee, but not reached by the district court or the
majority of this court.
The district court separately concluded that the counting of
the 27 employees would be “unfair” to the employer. The
court reasoned that because the voluntary layoff program was
a program adopted by the employer as part of the bargaining
agreement solely for the benefit of the employees, it would be
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
7
monies previously agreed to be provided by Ginatta to RMI
“for May and June expenses” had not been received, RMI
would “shut down the MX-4 Facility at RMI’s Metals Plant
in Ashtabula, Ohio, tomorrow, Friday, September 6, 1991.”
The record indicates that the three employees in question
were terminated the following Monday. The district court
considered the letter in reaching its decision on the motion,
along with Bennett’s February 1994 affidavit and September
1993 deposition, in which he attributed the ETP layoffs to
problems obtaining funding from Ginatta.
The appellants attempted to rebut RMI’s assertions only
with the deposition testimony of Warren Jensen, RMI’s vice-
president of personnel during 1991. Jensen, who was
responsible for personnel matters at all five of RMI’s plants
at the time, stated that RMI’s financial losses caused the
“large force reductions in [its] salaried work force” during
1991. The record in this case shows that part of his
deposition testimony included the following exchange:
Q: Do you know what the reasons were for that large
force reduction in the salaried work force that you’d
already made?
A: Certainly, it cut costs.
Q: Is it because of decreased sales and decreased profits
during this time frame?
A: RMI was very definitely losing money at that time,
yes.
We are unable to conclude that these somewhat ambiguous
responses are sufficient to bring the three ETP layoffs within
the ambit of the notice requirement, because the record fails

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8 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
1The quoted material appears at the top of a page of the transcribed
deposition. However, the previous pages are missing both from the joint
appendix and from the record. We thus have no way to determine whether
or not the colloquy was directed toward the ETP employees.
to show the context of the questions put to Jensen.1 We
therefore agree with the district court’s determination that
OCAW and the other plaintiffs failed to make a showing
sufficient to raise a genuine issue of material fact as to RMI’s
rationale for the September 1991 ETP layoffs. In response to
a defendant’s summary judgment motion, a plaintiff “can no
longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts,’ which for purposes
of the summary judgment motion will be taken to be true.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(emphasis added) (citation omitted). Here the plaintiffs
presented no specific evidence that would credibly controvert
the September 5th letter from Hornbostel to Ginatta or offer
an opposing theory for why the three ETP employees were
terminated. As to the ETP layoffs then, the district court was
correct in finding that they could not be aggregated with the
other 87 layoffs in order to meet the threshold for WARN
liability.
Post-“Voluntary Layoff” Terminations
The appellants also argue that 27 unionized employees who
returned to layoff status during the 90-day period beginning
July 22, after being recalled to cover more senior employees
on voluntary layoff, should have been counted as “laid off”
under WARN. RMI does not dispute that the employment
status of the 27 employees changed during the 90-day period;
rather, it argues that, as a matter of law, “layoffs” resulting
from participation in the voluntary leave/temporary recall
program should not be counted as layoffs for WARN
purposes.
The district court agreed and based its holding for RMI on
two alternative grounds. First, it held that counting the return
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
29
involved). I therefore am persuaded that the majority’s
reading of the statute is unsupported by the legislative history.
Instead, the legislative history lends further support to the
position of plaintiffs-appellants.
At bottom, the majority appears concerned that somehow
its sense of “fairness” would be offended to hold that these 27
employees, while temporarily employed, were active
employees who experienced an actual layoff during the
statutory period, instead of employees who had been laid off
well before the large layoffs of the summer of 1991. This
conclusion, however, is neither accurate nor contemplated by
the statute and regulations. To the extent these 27 people
were already laid off, they were laid off with expectations of
recall based on past notification and industry practice. See 20
C.F.R. § 639.3(a)(ii) (defining “reasonable expectation of
recall”). As the record reflects, these employees were treated
by the employer as regular employees. See Bennett dep., J.A.
p. 373. They were recalled with some regularity between
their original layoff dates and their final layoffs in August or
September 1991. See Voluntary Layoff Program Summary of
Activity, J.A. pp. 150-52 (showing repeated returns to work
for many of the 27 employees during the period between
November 1990 and August 1991). They also knew from
experience that the 34 employees immediately preceding them
on the seniority list had been recalled to employment by the
company on April 15 and April 29, 1991. See Recall Lists,
J.A. pp. 272-73; Seniority List, J.A. pp. 214-215. Thus, a
reasonable factfinder could conclude that prior to August or
September 1991, when their voluntary recall periods ended,
these laid-off employees had a reasonable expectation of
recall. See Jones v. Kaiser-Roth Hosiery, Inc., 748 F. Supp.
1276, 1284 (E.D. Tenn. 1990) (the fact that 111 employees
were recalled enhanced the expectation of the remaining 159
employees that they also would be recalled); Damron v. Rob
Fork Mining Corp ., 739 F. Supp. 341 (E.D. Ky. 1990).
Moreover, these temporarily laid off employees could
experience and did experience a statutorily-defined

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28 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
the only reading consistent with the treatment of temporarily
laid off employees under the regulations. Under 29 C.F.R.
§ 639.3(a)(ii),
Workers on temporary layoff or on leave who have a
reasonable expectation of recall are counted as
employees. An employee has a “reasonable expectation
of recall” when he/she understands, through notification
or through industry practice, that his/her employment
with the employer has been temporarily interrupted and
that he/she will be recalled to the same or to a similar
job.
The regulations require a worker on temporary layoff to be
counted as an employee whenever that employee has a
reasonable expectation of being recalled. See also Kildea,
144 F.3d at 407 (holding that “employee” is an individual
who is actively working or who is temporarily laid off with a
reasonable expectation of recall). Yet the majority would
effectively disregard this definition of employee since a job
loss to a temporarily laid off worker could never result in a
reduction in the number of positions available and thus a
temporarily laid off person could never be counted for
purposes of the threshold mass layoff determination. The
majority’s reading, therefore, is indisputably contrary to the
clear and unambiguous language of the regulations.
In addition, as the majority notes, the legislative history
does not discuss or define “reduction in force” or mention the
elimination of “positions.” That same history, however,
clearly reinforces the conclusion that Congress intended a
mass layoff to be determined by counting the amount and
percentage of employment loss and employees affected, not
by counting the amount or percentage of reduction in force or
whether positions have been eliminated. See H.R. Conf. Rep.
No. 100-576, at 1046 (1988), reprinted in 1988 U.S.C.C.A.N.
2078, 2079 (referring to employment losses and the
definitions of employment losses, and justifying notice
requirement on disruption to communities and individuals
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
9
to layoff status after temporary voluntary recall as a WARN
layoff would be “manifestly unfair” to RMI , since RMI had
agreed to the voluntary layoff/temporary recall program as a
benefit for its unionized employees. Second, the court held
that, since Department of Labor regulations implementing
WARN define a “mass layoff” as a “reduction in force” that
results in an “employment loss” for at least 33 percent of
employees at a single site of employment, the return of
employees to layoff status after being recalled temporarily
could not be considered layoffs contributing to a mass layoff
because this action involved no elimination of positions, and
hence no reduction in force. Because we agree with the
court’s reasoning on the second ground, we need not address
the first.
The term “reduction in force,” used not only in the Labor
regulations but in the WARN statute itself, see 29 U.S.C.
§ 2101(a)(3), is not without ambiguity. Congress did not
define the phrase in enacting WARN, nor did the Department
of Labor offer clarification when promulgating regulations
enforcing WARN. In an employment case involving
allegations of age discrimination, however, we defined a
reduction in workforce as a situation where “business
considerations cause an employer to eliminate one or more
positions within the company” and added that “[a]n employee
is not eliminated as part of a work force reduction when he or
she is replaced after his or her discharge.” Barnes v.
GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
(emphasis added); see also Matthews v. Allis-Chalmers, 769
F.2d 1215, 1217 (7th Cir. 1985) (“[B]y definition, when the
employer reduces his work force he hires no one to replace
the ones he lets go.”). Use of the Barnes definition, which
appears to reflect common parlance, is appropriate in this case
because it distinguishes the phrase “reduction in force” from
the term “employment loss,” also present in WARN’s
definition of a mass layoff. See 29 U.S.C. § 2101(a)(6)
(defining “employment loss” as “an employment termination,
other than a discharge for cause, voluntary departure, or
retirement . . . a layoff exceeding 6 months, or . . . a reduction

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10 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
in hours of work of more than 50 percent during each month
of any 6-month period”). Applying this definition, we
conclude that no reduction in force occurred when
temporarily-recalled employees were again laid off, because
they were replaced by the senior employees returning from
voluntary layoff status. This distinguishes these “layoffs”
from those of the other 85 unionized employees separated
from employment during July and August 1991, undisputedly
laid off due to RMI’s financial losses and for whom no
replacements were hired. Because the return to layoff status
of the 27 temporarily-recalled employees involved no
reduction in force, we agree with the district court’s decision
that these “layoffs” may not be added to the other layoffs to
create a mass layoff triggering WARN liability.
III. CONCLUSION
WARN expressly encourages employers to notify
employees before permanent layoffs are effected, whether or
not the statute’s triggering thresholds are met. See 29 U.S.C.
§ 2106 (“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.”). These sentiments were
echoed by the Department of Labor in promulgating
regulations enforcing the statute. See 20 C.F.R. § 639.1(e)
(“It is civically desirable and it would appear to be good
business practice for an employer to provide advance notice
to its workers or unions, local government and the State when
terminating a significant number of employees. . . . The
Department encourages employers to give notice in all
circumstances.”) (emphasis added). In the summer of 1991,
RMI laid off 87 employees with no apparent notice, two
terminations short of the number necessary to make this
action a mass layoff. In so doing, RMI violated the spirit, if
not the letter of the law, providing these workers and their
families with no transition time to seek alternative
employment or training for work outside the manufacturing
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
27
own definition or insertion of these terms to eliminate from
the threshold count two substantial groups of employees who
expressly were included in a definition Congress did make:
the definition of employees experiencing an “employment
loss.” The majority’s interpretation flies in the face of general
principles of statutory construction under which the court is
required to give meaning to all terms in a provision and to
interpret one statutory term in a manner that will not conflict
with other terms.
Moreover, contrary to the majority’s tortured reading of the
statutory language to limit definitions adopted by Congress,
a straightforward reading of the statute permits giving
meaning to all terms, including “reduction in force” and
“employment loss.” The use of “reduction in force” in the
statute is solely a means of describing a significant
elimination of jobs “which . . . is not the result of a plant
closing.” The resulting effect of this reduction in force is
separately described under the statute as the number and
percent of employees experiencing an employment loss.
As a result, even accepting that the term “reduction in
force” requires — as the majority holds — that actual job
elimination must occur in order for a “mass layoff” to occur
— no dispute exists that a reduction in force has occurred
during the layoffs at RMI in the summer of 1991. At least 87
employees undisputedly lost their positions and were not
replaced during the economic downturn experienced by RMI.
Thus, a “reduction in force” unquestionably has occurred.
The remaining issue is whether that reduction in force “results
in an employment loss . . . for . . . at least 33 percent of the
employees . . . .” In other words, as the statute
unambiguously states, the definition does not require a
reduction in force of 33 percent of the positions. It requires
a reduction in force resulting in an employment loss for 33
percent of the employees.
This reading of the statute is not only a preferred reading of
the language and structure of Congress’ definition, it also is

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26 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
concludes that because the 27 temporarily recalled employees
were replaced by the returning senior employees, they may
not be counted as part of a reduction in force. The majority
therefore concludes that it need not determine whether these
employees have experienced an “employment loss” as defined
by the statute.
The majority’s interpretation of the statutory “reduction in
force” language renders redundant, or meaningless in most
circumstances, the statutory requirement that the employer
determine whether a particular percentage of the employees
has experienced an “employment loss.” Under the broad
definition of “employment loss” contained in the statute,
layoffs of more than six months (as opposed to layoffs of less
than six months) and certain reductions in hours of work both
amount to “employment losses” covered by the statute. See
29 U.S.C. § 2101(a)(6). Yet such statutorily defined
employment losses typically would not result in a loss of a
position (i.e., a reduction in force under the majority’s rule).
As a result, under the majority’s rule, an employee on a layoff
of less than six months who, during the statutory “mass
layoff” period, had his layoff converted to a layoff of more
than six months would never be counted as an employee —
and he therefore would never experience a countable
employment loss for determining a mass layoff — because
his loss would never result in the loss of a position, since he
already was on layoff. Similarly, an employee who had his
work hours reduced more than 50 percent in each month of
any six-month period would never be counted because his
“employment loss” would never result in the actual
elimination of a position. Thus, despite the clear
Congressional definitions of the persons counted as
employees who experience employment losses under the
statute, the majority would render those definitions
meaningless.
Nowhere in the statute did Congress define “reduction in
force” and nowhere in the statute did Congress mention the
elimination of “positions.” Yet the majority would rely on its
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
11
2See 20 C.F.R. § 639.1(e) (“It is . . . prudent for employers to weigh
the desirability of advance notice against the possibility of expensive and
time-consuming litigation to resolve disputes where notice has not been
given.”).
sector, and causing almost a decade’s worth of ensuing
litigation.2
Nevertheless, RMI has won the numbers game these
parties ultimately played. We agree with the district court that
there is no genuine issue of material fact that RMI terminated
87 employees within the 90-day period beginning July 22,
1991, and that only these layoffs may be counted toward
triggering the 33 percent threshold for purposes of WARN’s
advance notification provision. As a matter of law, then, the
aggregated layoffs did not count as a mass layoff under
WARN for which affected employees must be notified. We
therefore AFFIRM the judgment of the district court granting
summary judgment in the defendant’s favor.

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12 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
__________________
DISSENT
__________________
DOUGLAS W. HILLMAN, District Judge, dissenting.
Despite the apparent ease with which the majority disposes of
plaintiffs-appellants’ claims, I am persuaded that plaintiffs-
appellants have presented sufficient evidence to create a
genuine issue of material fact whether defendant-appellee
engaged in a mass layoff as defined by the Worker
Adjustment Retraining and Notification Act (“WARN”), 29
U.S.C. § 2101(a)(3)(B)(i)(I). Consequently, I am satisfied
that the district court’s grant of summary judgment to the
employer was error, and I respectfully dissent.
I.
As the majority observes, many of the facts involved in this
case are undisputed. I concur in the overview of the
procedural and factual background, as set forth in Section I of
the majority opinion. However, I am persuaded that the
majority has misstated or failed to acknowledge a wide range
of factual considerations during the course of its discussion of
legal issues under Section II of the opinion. In addition, the
majority has failed to explain how its conclusions are
consistent with an entire reading of the statutory definition of
“mass layoff” or with the statute’s implementing regulations.
Therefore, for the reasons set forth in the remainder of this
opinion, I dissent from part II and from the conclusion
reached by the majority opinion.
II.
The purpose of the WARN act is to “ensure that 'workers
receive advance notice of plant closures and mass layoffs that
affect their jobs.’” Kildea v. Electro-Wire Products, Inc., 144
F.3d 400, 405 (6th Cir. 1998) (quoting Marques v. Telles
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
25
including at times serving as temporary recalls to fill positions
made available when more senior employees took advantage
of the company’s voluntary layoff program provided under
the contract. J.A. pp. 370-71. Under the voluntary layoff
program, regularly employed but more senior employees
could, if they wished, elect to accept voluntary layoff for a 30-
day period if an employee on temporary layoff was available
and qualified to fill the position. Id.
As noted, the 27 employees at issue here undisputedly were
returned to layoff status during the 90-day period after July
22, 1991, after the more senior employees they had replaced
returned to work. The majority holds that these temporarily
recalled employees who were again laid off may not be
counted to determine whether a mass layoff occurred because
their layoffs, after voluntary recall, did not amount to a loss in
a position in the workforce, and thus did not constitute a
“reduction in force” under the statutory definition.
I respectfully suggest that the majority’s reading of the
statute distorts the plain meaning of the provision when read
as a whole and that such reading further conflicts with the
applicable regulations. As previously noted, a “mass layoff”
is defined in relevant part as a “reduction in force which . . .
is not the result of a plant closing; and . . . results in an
employment loss for . . . at least 33 percent of the employees
. . . .” 29 U.S.C. § 2101(3)(B)(i). The majority, in singling
out the words “reduction in force” acknowledges that the
phrase is not defined either in the statute or legislative history.
Nevertheless, the majority concludes based on cases
considering the employee’s evidentiary burden in reduction in
force cases alleging age discrimination, that when an
individual has been replaced, he or she may not be considered
to have been eliminated as part of a reduction in force. Citing
Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
(“An employee is not eliminated as part of a work force
reduction when he or she is replaced after his or her
discharge). Applying that reasoning, developed in an entirely
separate context for entirely different reasons, the majority

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24 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
credibility challenges and inconsistencies in the employer’s
proffered explanation, the majority denies plaintiffs-
appellants their day in court and the opportunity for effective
cross-examination of defendant-appellee’s witnesses
regarding those inconsistencies. The majority surprisingly
grants conclusive weight to the employer’s explanation
simply because it has claimed that the three salaried ETP
employees were laid off for a separate and distinct reason
from the remaining 87 employees — effectively relieving
defendant-appellee of its statutory obligation to prove that the
proffered reason for the ETP layoffs was the true reason for
those layoffs.
For all of these reasons, I am persuaded that the evidence is
more than sufficient to withstand summary judgment.
Plaintiffs are entitled to a jury determination of the reason for
defendant-appellee’s layoffs of ETP employees.
B. Voluntarily Recalled Employees
Plaintiffs-appellants also assert that the trial court
committed error when it held as a matter of law that an
additional 27 unionized employees, who were laid off during
the relevant time period after having been temporarily
recalled, should not be counted for purposes of determining
whether a mass layoff has occurred. The majority affirms the
district court, a decision from which I respectfully dissent.
The 27 employees at issue initially were temporarily laid
off on either October 1, 1990 or November 19, 1990, well
before the date of the first layoffs at issue in this case. J.A.
pp. 151-52. Like all temporarily laid off employees, the 27
continued to be listed as employees of the company and were
considered regular employees of the company. See Plant
Seniority List, J.A. pp. 215-16; Bennett dep., J.A. p. 373.
As temporarily laid off employees, the 27 employees were
required to report their availability for work. See Notices of
Layoff, J.A. pp. 147-48. They were eligible to be recalled by
the company when the company deemed it necessary,
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
13
Ranch, Inc., 131 F.3d 1331, 1333 (9th Cir. 1997). Under
WARN,
[a]n 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 . . . to each
representative of the affected employees as of the time of
the notice or . . . to each affected employee . . . .
29 U.S.C. § 2102(a). A mass layoff that involves more than
50 employees and fewer than 500 employees is defined as
a reduction in force which . . . is not the result of a plant
closing and . . . results in an employment loss at the
single site of employment during any 30-day period for
. . . at least 33 percent of the employees (excluding any
part-time employees) . . . .
29 U.S.C. § 2101(a)(3)(B)(i)(I). The required employment
loss of § 2101(a)(3) is defined as
an employment termination, other than a discharge for
cause, voluntary departure, or retirement, . . . a layoff
exceeding 6 months, or . . . a reduction in hours of work
of more than 50 percent during each month of any 6-
month period.
29 U.S.C. § 2101(a)(6).
Pursuant to the regulations developed under WARN, in
determining the number of employees (and thereby the
percentage of employees involved in a layoff) an employer
may be said to employ,
[w]orkers on temporary layoff or on leave who have a
reasonable expectation of recall are counted as
employees. An employee has a “reasonable expectation
of recall” when he/she understands, through notification
or through industry practice, that his/her employment
with the employer has been temporarily interrupted and

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14 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
that he/she will be recalled to the same or to a similar
job.
20 C.F.R. § 639.3(a)(ii).
As the majority observes, the regulations set a “snapshot”
date upon which the calculations of numbers of employees
and numbers of employees experiencing an “employment
loss” shall be calculated. See 20 C.F.R. § 639.5(a)(2). That
date is the date 60 days preceding the first layoffs triggering
the duty to provide notice.
In the instant case, the parties agree that the relevant
“snapshot” notice date is May 23, 1991. The parties also
stipulate (for purposes of this appeal) that RMI employed 269
employees on the “snapshot” date. As a result, for purposes
of this appeal, it is undisputed that 89 employees must have
experienced a countable employment loss during the relevant
period in order to trigger the notice requirement of the statute.
The district court found and the parties have not appealed that
at least 87 employees experienced a countable employment
loss during the relevant statutory period.
At issue, therefore, is whether at least two additional
employees may be considered to have experienced a
countable employment loss during the relevant period. If so,
then all agree the provisions of WARN are applicable.
Plaintiffs-appellants contend here, as they did below, that
two additional groups of employees, both of which include
more than two employees, must be counted in determining the
number of affected employees. First, plaintiffs-appellants
assert that three additional salaried employees in the
Electrolytic Titanium Process (“ETP”) Department, a research
and development project, also were laid off during the
relevant period for the same reason as the other 87 employees.
Defendant-appellee contends and the majority holds that, as
a matter of law, the three ETP employees were laid off for a
separate and distinct reason and therefore may not be
considered to be part of the mass layoff.
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
23
salaried work force reductions before October 3, 1991 (which
included ETP layoffs) had been made for a single reason —
to cut costs.
In sum, plaintiffs-appellants provided three separate types
of challenges to defendant-appellee’s explanation for the ETP
layoffs: (1) the statutory presumption that temporally
connected layoffs have the same cause; (2) inconsistencies
between defendant-appellee’s conduct and its proffered
explanation, which cast substantial doubt on the credibility of
the explanation; and (3) testimony in which defendant-
appellee’s vice-president for personnel failed to distinguish
the ETP layoffs in circumstances in which one reasonably
could conclude he would have claimed such a distinction if it
were true. In ignoring the presumption under the statute as
well as the circumstantial evidence tending to undermine the
employer’s explanation, the majority engages in a restrictive
reading of the statute to the benefit of the employer and to the
obvious detriment of employees. Such a restrictive reading is
particularly inappropriate where, as here, the statute is
remedial in nature and must be interpreted in favor of the
class it is designed to benefit. See, e.g., United Paperworkers
Int’l Union v. Alden Corrugated Container Corp., 901 F.
Supp. 426, 439 (D. Mass. 1995); Washington v. Aircap Indus.
Corp., 831 F. Supp. 1292, 1295 (D.S.C. 1993).
The court also disregards the Supreme Court’s mandate on
summary judgment:
Credibility determinations, the weighing of evidence, and
the drawing of legitimate inferences from the facts are
jury functions, not those of a judge, whether he is ruling
on a motion for summary judgment or for a directed
verdict. The evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(emphasis added). In declining to consider the reasonable

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22 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
asked directly and separately about the treatment of the
salaried ETP employees.
To the contrary, Jensen’s testimony provides some credible
evidence that defendant-appellee’s explanation is not worthy
of belief. Jensen testified about the explanation for salaried
workforce layoffs that he gave to union officials shortly after
the ETP layoffs, when he allegedly referred to “the large force
reductions . . . made to our salaried workforce.” In his
presentation in October 1991 and at his deposition, Jensen, a
vice-president of defendant company, made no attempt to
distinguish any one group of salaried employee layoffs from
any other. A failure by RMI’s vice-president for personnel to
distinguish the ETP layoffs — which RMI now contends
were made for a different reason — is itself suggestive that no
different reason did in fact exist. Cf. Fed. R. Evid. 801(d)(2)
& Advisory Committee Notes (including as statements the
failure to speak under circumstances in which a reasonable
person would do so).
Moreover, Jensen’s remaining answers, while susceptible
of more than one interpretation, may be read as an
unambiguous response to plaintiffs’ questions regarding the
reasons for the salaried work force layoffs that had been made
before October 3, 1991:
Q Did you know the reasons for the large work force
reductions in the salaried work force that you’d
already made?
A Certainly, it cut costs.
Q Is it because of decreased sales and decreased profits
during this time frame?
A RMI was very definitely losing money at that time,
yes.”
J.A. p. 348 (emphasis added). When read together, Jensen’s
explanations may reasonably be interpreted to mean that all
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
15
Second, plaintiffs-appellants contend that 27 non-salaried
employees, who already were on temporary layoff during the
period preceding the layoffs beginning July 22, 1991, also
should be counted. These employees were on temporary
layoff, but had been recalled as part of a voluntary layoff
program provided in the collective bargaining agreement.
Under the voluntary layoff program, more senior employees
could voluntarily take layoff status for 30-day periods, during
which periods they would be replaced by previously laid off,
more junior employees. At the end of the 30-day recall
periods, these 27 voluntarily recalled employees were again
laid off when the senior employees returned to work.
However, when laid off at this time (on either August 5, 1991
or September 2, 1991), these employees were laid off
permanently. Plaintiffs therefore assert that these 27
employees experienced an employment loss within the
meaning of WARN that was caused by the same reason as the
other 87 layoffs, i.e. economic downturn. Defendant-appellee
asserts and the majority holds that, as a matter of law, the 27
non-salaried employees may not be considered to have been
part of a reduction in force and therefore may not be counted.
I disagree with the majority’s conclusion regarding both
groups of employees.
A. ETP Employees
Defendant-appellee asserts that the three ETP employees
laid off on September 14, 1991, were laid off for a separate
and distinct reason other than the economic downturn causing
the layoffs of the other 87 employees. Defendant-appellee
contends therefore that as a matter of law the three ETP
employees may not be counted in determining whether a mass
layoff has occurred.
In determining whether a mass layoff has occurred, the
statute mandates the aggregation of all layoffs occurring
within a 90-day period, unless the employer is able to prove
both that the cause of a particular layoff is separate and

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16 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
distinct and that the employer’s actions are not taken to avoid
the requirements of WARN:
[I]n 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.
29 U.S.C. § 2102(d) (emphasis added). In other words, the
statute creates a rebuttable presumption that multiple layoffs
occurring within a 90-day period are the result of the same
cause. Moreover, while the statute does not specify the
meaning of the phrase “separate and distinct actions and
causes,” courts have concluded that “layoffs occasioned by a
continuing and accelerating economic demise are not the
result of separate and distinct causes.” United Paperworkers
Int’l Union v. Alden Corrugated Container Corp., 901 F.
Supp. 426, 435-36 (D. Mass. 1995).
In the instant case, the employer argues that the ETP
department was jointly funded by the employer and an Italian
partner company, Ginatta Torino Titanium (“GTT”).
Defendant-appellee asserts that the three ETP employees were
laid off as a result of GTT’s failure to pay its share of the
costs of operating the department. In support of its asserted
independent reason for layoff of the ETP employees,
defendant-appellee proffered the affidavit of Jerome Bennett,
stating that the three ETP employees were laid off on
September 14, 1991, “due to a funding problem involving an
outside company. As reflected in the RMI documents
attached as Exhibits G and H.” J.A. p. 205 ¶ 22. The
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
21
Jensen testified that at the time of his meeting with union
representatives in early October, he had been questioned
about both the company’s treatment of and its plans for the
salaried workforce. Jensen testified that at this meeting he
had displayed an exhibit on the overhead projector showing
workforce reductions to salaried employees. The relevant
portion of Jensen’s deposition testimony discussing the
October 1991 meeting is somewhat broader than the colloquy
quoted by the majority:
A. We — during the course of our discussion on
October 3rd, somebody from the union . . . raised the
question, well, what was going to be done with the
salaried people? In response to such questions, such
comments, I used an overhead, an exhibit showing
the large force reductions that had taken place —
that we had made in our salaried work force.
Q You’d already made?
A Already made. Correct.
Q Do you know what the reasons were for that large
force reductions in the salaried work force that
you’d already made?
A Certainly, it cut costs.
Q Is it because of decreased sales and decreased profits
during this time frame?
A RMI was very definitely losing money at that time,
yes.
J.A. p. 348 (emphasis added). The majority concludes that
the quoted language is insufficient to create a genuine issue of
fact as to whether the salaried ETP employees were laid off
for the same or different reasons. Specifically, the majority
concludes that Jensen’s testimony would only undermine
defendant-appellee’s proffered explanation if Jensen had been

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20 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
1It is noteworthy that the record contains no assertion by the
company that the monies owed by GTT were never paid. See Bennett
dep., J.A. pp. 362-63 (stating only that project experienced “intermittent
shortages of money based upon the commitment that the Italians had
made to fund some portion of it.” (Emphasis added.)
that the funding issues with GTT were either resolved or
acquiesced to by RMI.1
Further, contrary to what the majority states, defendant-
appellee did not lay off the three employees on “the following
Monday” after the threatened shutdown date, September 6,
1991. Instead, the company did not lay off any employees
until September 14, 1991, nine days after the letter was
written and eight days after the supposed shutdown. Bennett
Aff., J.A. p. 205 ¶ 22 (stating that employees were laid off on
September 14, 1991).
As a result, a reasonable jury would be entitled to conclude
that the stated explanation by the employer that the three
employees were laid off for reasons other than economic
reasons was not credible because the stated reason was
inconsistent with what the company actually did. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(credibility determinations and the drawing of legitimate
inferences is for the jury, not the court). The mere fact that
RMI threatened a partner in order to coerce payment of
monies owed does not establish that RMI’s actions short of
the threat (that is, laying off three employees instead of
shutting down the project) were taken for the threatened
reason. The jury therefore would be entitled to infer from the
circumstantial evidence alone that the proffered explanation
was not the true reason for the layoffs and that defendant-
appellee had failed to prove that the presumption under the
statute was overcome.
Moreover, to further bolster their claim of pretext,
plaintiffs-appellants produced the deposition testimony of
Warren Jensen, appellee’s vice-president of personnel.
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
17
referenced Exhibit H consists of a letter dated September 5,
1991 from RMI’s Vice-President, General Counsel and
Secretary, John F. Hornbostel, Jr., to a representative of GTT
stating
This is to advise you that in accordance with the
agreement reached between RMI and GTT in your
meeting with Fred Gieg on August 28, 1991, here in
Niles and further in a conversation that Fred had with
you yesterday, it was definitely agreed that unless RMI
received by Thursday, September 5, 1991, the amount of
$382,796.94, which is payment for May and June
expenses, that RMI, upon such non-receipt, would shut
down the MX-4 Facility at RMI’s Metals Plant in
Ashtabula, Ohio, tomorrow, Friday, September 6, 1991.
Since we haven’t yet received the money as promised by
you, we will proceed with the shutdown.
J.A. p. 247.
On the basis of the affidavit and the letter, both the district
court and the majority hold that, as a matter of law, the three
ETP employees were laid off for a different and distinct
reason than the other 87 employees, who were laid off
because of the economic conditions in the company and the
market. I disagree.
As previously noted, the statute creates a presumption that
multiple layoffs occurring during a 90-day period have the
same cause and should be aggregated for purposes of
determining whether a mass layoff has occurred. See 29
U.S.C. § 2102(d) (“employment losses for 2 or more groups
. . . which occur within any 90-day period shall be considered
to be . . . a 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.”) (emphasis added).
See also H.R. Conf. Rep. No. 100-576, p. 1050 (1988),
reprinted in 1988 U.S.C.C.A.N. 2078, 2083 (using words

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18 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
No. 98-4336
“presumptively” and “presumption”). The employer is
permitted by statute to prove that a separate cause occasioned
certain layoffs. The burden of proof, however, is placed
squarely on the employer. Id. The employer’s explanation,
therefore, is nothing more than an alternative explanation
which, if challenged as to credibility, creates a typical fact
question for the jury to resolve. If the jury were to find the
explanation not to be credible, defendant-appellee would have
failed in meeting its burden of proof and plaintiffs-appellants
would be entitled to aggregate the ETP layoffs.
As a result, an employer’s claimed alternative reason is not
entitled to presumptive truthfulness. At best, the employer’s
proffered explanation may be given no more weight than is
given the “legitimate nondiscriminatory explanation” an
employer is required to articulate in response to a prima facie
case of discrimination under Title VII, 42 U.S.C. § 2000(e).
See, e.g. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d
1078, 1084 (6th Cir.1994) (applying circumstantial evidence
test for proving discrimination, including employer’s burden
to articulate nondiscriminatory explanation, and discussing
manner in which plaintiff may prove the explanation is
pretextual). A plaintiff may show pretext by producing
"sufficient evidence from which the jury may reasonably
reject the employer's explanation." Id. at 1083. As the courts
repeatedly have observed, in Title VII, ADEA and ADA
actions, plaintiffs-appellants are not required to introduce
direct evidence to challenge the credibility of any evidence,
including the employer’s explanation. Id. at 1083 (stating that
parties need not show directly that the illegal reason was the
actual reason, but instead may challenge the credibility of the
explanation, thereby creating inference that real reason was an
impermissible one). Direct evidence of illegal purpose
generally is not available. See Kline v. Tenn. Valley Auth.,
128 F.3d 337, 348 (6th Cir. 1997) (ADEA case) (“Rarely can
discriminatory intent be ascertained through direct evidence
because rarely is such evidence available.”). Instead,
plaintiffs are entitled to dispute defendant’s explanations with
the sort of circumstantial evidence and reasonable inferences
No. 98-4336 OCAW, Local 7-629, et al.
v. RMI Titanium Co.
19
used to challenge credibility in other contexts. Id. (“It is the
rare situation when direct evidence of discrimination is
readily available, thus victims of employment discrimination
are permitted to establish their cases through inferential and
circumstantial proof.”).
Further, plaintiffs’ burden of proving motive under WARN
unquestionably is lower than that burden under federal
discrimination statutes. Although the means for
demonstrating pretext under the two models may be
somewhat parallel, the burden of proving motive under
WARN is placed on the employer, whereas under Title VII,
the burden of proof remains always on plaintiffs. See 29
U.S.C. § 2102(d). As a result, under WARN the employer
bears the burden of demonstrating that the proffered
explanation is not pretextual.
Here, plaintiffs-appellants have raised substantial
credibility challenges to the employer’s stated reason for the
layoffs of the ETP employees. First, the explanation given by
the employer for its actions is inconsistent with its own
conduct. In the September 5, 1991 letter to GTT, defendant-
appellee threatened to shut down the operation of the entire
ETP program on September 6, 1991 unless the GTT
immediately paid the monies owed. Defendant-appellee,
however, did not shut down the ETP program on September
6, 1999 as threatened. Instead, the company laid off only
three of the department’s 13 employees, a pattern more
consistent with the overall economic downsizing in the plant
than with the threatened shutdown of a department. In
addition, in contrast with the representations contained in the
letter that the project would be shut down on September 6,
1991, the company did not shut down the program until
February 1992, at approximately the same time it closed the
entire plant. Bennett Dep., J.A. pp. 363-64 (project closed at
about the same time as the plant). This action is in direct
contravention of the threatened shutdown date and suggests

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