Poore; Doug E. Addis; Marty  Smith; Fred S. Wood v. DUNLOP SPORTS GROUP AMERICAS, INCORPORATED, a/k/a Dunlop Slazenger Group Americas,…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DONNA J. LONG; JEFFREY TAYLOR;
ARTHUR F. O’KELLY; LA WANDA A.
MULLINAX; ELAINE MATHESON;
STEPHEN E. KING; JANICE HOLLAND;
LARRY HARRIS; JOAN GOLDSMITH;
LINDA C. GILLIAM; ROBERT
GAMBRELL; SUSAN B. ELLIOTT;
ANTHONY DAVENPORT; MELISSA
WHITFIELD; VONDA G. SMITH;
TIMOTHY M. SMITH; BONNIE R.
RAMEY; PAMELA K. POORE; RHONDA
No. 06-2143 POORE; DOUG E. ADDIS; MARTY 
SMITH; FRED S. WOOD,
Plaintiffs-Appellants,
v.
DUNLOP SPORTS GROUP AMERICAS,
INCORPORATED, a/k/a Dunlop
Slazenger Group Americas,
Incorporated; WESTMINSTER
MANUFACTURING, LLC, a/k/a Dunlop
Slazenger Manufacturing, LLC,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(8:06-cv-00294-HMH)
Argued: September 26, 2007
Decided: October 29, 2007

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Before MOTZ and KING, Circuit Judges,
and Robert J. CONRAD, Jr., Chief United States District Judge for
the Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Conrad joined.
COUNSEL
Melvin Hutson, Greenville, South Carolina, for Appellants. Kristofer
Karl Strasser, OGLETREE, DEAKINS, NASH, SMOAK & STEW-
ART, P.C., Greenville, South Carolina, for Appellees.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Worker Adjustment and Retraining Notification Act ("WARN
Act" or "Act"), 29 U.S.C.A. §§ 2101-2109 (West 1999 & Supp.
2007), requires that certain employers provide their employees with
written notice 60 days before a plant shutdown causes the employees
an employment loss, including an employment termination other than
discharge for cause, voluntary departure, or retirement. In this case,
a covered employer ceased all production at its golf ball manufactur-
ing plant without prior notice of the shutdown. The employer, how-
ever, provided notice of the shutdown at the time of shutdown and for
the next 60 days continued to pay full wages and benefits to all but
twenty-two employees. The employer stopped payments to those
twenty-two employees when they began full-time employment with
another employer. Those employees bring this suit, asserting that the
employer violated the WARN Act and should pay their wages and
benefits for the entire 60-day notice period. We hold that the
employer did not violate the WARN Act because no employee suf-
fered an employment loss as a result of the plant shutdown until 60
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days after the employer provided notice of it. Accordingly, we affirm
the district court’s grant of summary judgment to the employer.
I.
The parties agree as to the relevant facts.
For many years, Dunlop Sports Group Americas, Inc. and West-
minster Manufacturing, LLC (collectively "Dunlop") operated a golf
ball manufacturing plant in Westminster, South Carolina, employing
approximately three hundred and fifty people. On October 31, 2005,
Dunlop’s employees arrived at work to discover that Dunlop had
ceased operations at the facility.
Dunlop provided all employees with written memoranda informing
them that Dunlop was selling the factory. The memoranda notified the
employees that their employment would continue until the earlier of
December 31, 2005, or the date that they accepted a position working
for the successor company, which intended to operate the plant at a
diminished capacity. The memoranda explained that henceforth
employees would not be required to report for work at the plant, but
assured them that they would continue to receive wages for forty
hours per week and stay eligible for health and other benefits as long
as they remained employed by Dunlop.
In late November, the successor company hired twenty-two Dunlop
employees who had worked at the Dunlop plant until October 31. In
early December, Dunlop ceased paying wages and benefits to these
twenty-two employees (the "Employees"), finding them employed
full-time by the successor company.
The Employees then filed this action, contending that Dunlop
should have continued to pay them wages and benefits until Decem-
ber 31, 2005. Specifically, the Employees allege that Dunlop failed
to comply with the notification requirements of the WARN Act and
so should be required to pay their wages for a full 60 days after Octo-
ber 31, 2005, regardless of their employment during that period with
the successor company. Both Dunlop and the Employees moved for
summary judgment. The district court granted Dunlop’s motion and
denied that of the Employees.
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II.
We review a district court’s grant of summary judgment de novo.
See United States v. Kanasco, Ltd., 123 F.3d 209, 210 (4th Cir. 1997).
This case turns solely on the interpretation of the WARN Act, and we
consider the district court’s interpretation of those statutory provisions
de novo. See United States v. Undetermined Amount of U.S. Cur-
rency, 376 F.3d 260, 264 (4th Cir. 2004).
The WARN Act requires an employer to provide written notice to
its employees 60 days before ordering a plant closing or a mass lay-
off. 29 U.S.C.A. § 2102(a). When a company fails to provide suffi-
cient notice, the Act allows individual employees suffering an
employment loss to bring suit to recover unpaid wages and other ben-
efits for each day of a violation. See 29 U.S.C.A. § 2104(a). The Act
calculates an employer’s liability for violations on the basis of the
number of days of the violation, reduced by "any wages paid by the
employer to the employee," but not reduced by wages the employee
may earn from a new employer. See 29 U.S.C.A. § 2104(a)(2)(A).
Thus, Dunlop would be liable to the Employees, as they allege,
despite their new employment with the successor company, if Dunlop
violated the WARN Act.
The WARN Act requires that "[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." 29 U.S.C.A.
§ 2102(a). The Act defines a "plant closing" as a "shutdown" that has
certain undisputed characteristics and "results in an employment loss
. . . for 50 or more employees." 29 U.S.C.A. § 2101(a)(2). As relevant
here, the Act defines "employment loss" as "an employment termina-
tion, other than a discharge for cause, voluntary departure, or retire-
ment." 29 U.S.C.A. § 2101(a)(6)(A).
Dunlop acknowledges that it is an "employer" as defined by the
WARN Act, see 29 U.S.C.A. § 2101(a)(1), and that a "plant closing"
involving the requisite number of employees occurred here, see 29
U.S.C.A. § 2101(a)(2). Dunlop contends, however, that it provided
the required WARN Act notification to its employees 60 days prior
to any employment loss resulting from the plant closing and thus
incurred no liability to the Employees under the Act. The district
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court so held. The Employees offer two arguments as to why the court
erred in doing so. We consider each in turn.
III.
First, the Employees maintain that they suffered an employment
loss at the time of the plant shutdown, October 31, 2005. Because the
WARN Act required Dunlop to provide them with notice of the shut-
down 60 days prior to October 31, they contend Dunlop’s failure to
do so violated the Act.
In support of this contention, the Employees initially suggest that
the date of the plant shutdown must coincide with the date of the
employment loss, and so their employment loss occurred on October
31, 2005. The Employees contend that because they received no
notice prior to that date, they should receive wages and benefits for
the full 60 days as a matter of course.
We addressed a similar contention in United Mine Workers v. Mar-
tinka Coal Co., 202 F.3d 717 (4th Cir. 2000). There, the employer
provided its employees with notice 60 days before it shut down its
mining operation, but then discharged eighty-nine employees the day
after providing the notice. Id. at 719. We expressly rejected the view
that the date of shutdown must coincide with the date of employment
loss. Moreover, relying on the purpose of the Act and the Department
of Labor’s implementing regulations, we concluded that "the Act’s
purpose is best served by construing 29 U.S.C. § 2102(a) to tie the 60-
day notice requirement to the date when loss of employment caused
by the shutdown first occurs." Id. at 721-22. Hence, in Martinka, we
held that the employer violated the WARN Act because it had failed
to provide notice 60 days prior to the employment loss suffered by the
eighty-nine employees. Id. at 725. This reasoning applies equally in
the case at hand. As we held in Martinka, the date of plant shutdown,
here October 31, need not coincide with the date of the employment
loss, and the WARN Act’s required notice must precede the date
when the employment loss resulting from the shutdown occurs, not
the date when the shutdown itself occurs.
The Employees contend that even if this is so, they suffered an
"employment termination," which constitutes an "employment loss,"
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on October 31. They argue that because they no longer worked in the
Dunlop factory as of that date, Dunlop terminated their employment,
although the company continued to pay their salary and benefits until
they accepted full-time employment with the successor employer. We
cannot agree that this conduct constitutes an "employment termina-
tion."
"A fundamental canon of statutory construction is that, unless oth-
erwise defined, words will be interpreted as taking their ordinary,
contemporary, common meaning." Perrin v. United States, 444 U.S.
37, 42 (1979). The ordinary meaning of "employment termination"
does not encompass a situation in which an employer continues to pay
its employees full wages and benefits. Rather, "employment termina-
tion" is a "permanent cessation of the employment relationship."
Graphic Commc’ns Int’l Union, Local 31-N v. Quebecor Printing
(USA) Corp., 252 F.3d 296, 299 (4th Cir. 2001) (quoting Worker
Adjustment and Retraining Notification, 54 Fed. Reg. 16,042, 16,047
(April 20, 1989)). When an employer commits to continue payment
of wages and benefits to its employees, the employment relationship
has not ended. Thus, our precedent has consistently held, as we do
now, that "termination" does not necessarily occur when the employer
ceases production. See, e.g., id.; Martinka, 202 F.3d at 722.
The purpose and structure of the WARN Act permit no other view.
The Act requires advance notice because such notice "provides work-
ers and their families some transition time to adjust to the prospective
loss of employment, to seek and obtain alternative jobs and, if neces-
sary, to enter skill training or retraining that will allow these workers
to successfully compete in the job market." Worker Adjustment and
Retraining Notification, 20 C.F.R. § 639.1(a) (2007); see also Mar-
tinka, 202 F.3d at 720 (citing regulations’ description of purpose
approvingly). Thus, in the WARN Act, Congress sought to protect
employees’ expectation of wages and benefits, not their expectation
of performing work. The Act requires an employer to compensate
employees for back pay and employee benefits when the employer
fails to provide the required 60-day notice period. See 29 U.S.C.A.
§ 2104(a). But nothing in the Act suggests that Congress sought to
protect an individual’s ability to continue performing labor during the
60-day period, as the Employees contend.
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Indeed, in the regulations promulgated pursuant to the WARN Act,
the Department of Labor noted that "neither WARN nor the regula-
tions dictate the nature of work to be performed — or whether work
must be performed — during a period of employment after notice of
an impending plant closing or mass layoff has been given." Worker
Adjustment and Retraining Notification, 54 Fed. Reg. at 16,048
(emphasis added). These regulations also expressly provide that for
purposes of the WARN Act, "termination" does not occur simply
because an employee no longer performs the work that the employee
formerly performed. See 20 C.F.R. § 639.3(f)(2) ("[A]n employment
loss does not occur when an employee is reassigned or transferred to
employer-sponsored programs, such as retraining or job search activi-
ties, as long as the reassignment does not constitute a constructive dis-
charge or other involuntary termination.").
Dunlop’s decision to continue paying all benefits and wages for 60
days without requiring work in exchange entirely accords with the
language, purpose, and structure of the WARN Act, as well as the
Department of Labor’s authoritative interpretation of it. That decision
did not constitute an "employment termination" under the Act.
IV.
Alternatively, the Employees argue that they did not voluntarily
depart the company in early December, but rather Dunlop construc-
tively discharged them and thus caused them an "employment loss"
at that time. Although we agree that an "employment termination"
occurred at this point, no "employment loss" occurred because the ter-
mination resulted from a voluntary departure. See 29 U.S.C.A.
§ 2101(a)(6).
A constructive discharge occurs "if an employer deliberately makes
the working conditions intolerable in an effort to induce the employee
to quit." Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th
Cir. 1995) (internal quotation marks and citations omitted). The
Employees apparently believe that Dunlop’s actions rendered their
working conditions "intolerable" and their departure "involuntary"
because Dunlop told them that their employment would end in 60
days. But the WARN Act requires that covered employers, like Dun-
lop, provide notice 60 days prior to termination resulting from a plant
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shutdown. If this notice of termination would make workplace condi-
tions "intolerable," then every employer that adhered to the WARN
Act notice requirement would constructively discharge its employees
at the moment of notice and so violate the WARN Act. Obviously,
Congress did not pass legislation in which an employer’s very com-
pliance with the statute constitutes a statutory violation.
And again, the regulations promulgated pursuant to the WARN Act
fatally undermine the Employees’ position. In these regulations, the
Department of Labor states that it "does not . . . agree that a worker
who, after the announcement of a plant closing or mass layoff,
decides to leave early has necessarily been constructively discharged
or quit ‘involuntarily’." Worker Adjustment and Retraining Notifica-
tion, 54 Fed. Reg. at 16,048.
We note that the Employees seem particularly disgruntled with
Dunlop’s decision to consider only those employees hired by the suc-
cessor company to have departed voluntarily. Dunlop apparently
came to this decision because it could easily ascertain the employ-
ment status of the employees hired by its successor.* The Employees
have presented no evidence that an anticompetitive or discriminatory
intent motivated this decision. Nor do they assert that this decision
violated any statute that prohibits anticompetitive conduct or discrimi-
nation in employment decisions; clearly, the WARN Act itself does
not regulate such matters. The WARN Act simply requires that cov-
ered employers provide notice 60 days before an employment loss;
Dunlop complied with the Act.
In sum, the Employees voluntarily departed Dunlop’s employment
in early December 2005 for full-time employment with its successor;
no constructive discharge occurred.
*Nothing in the record suggests that Dunlop discharged any employee
engaged in part-time employment consistent with continued work for
Dunlop and then mislabeled this termination a "voluntary departure."
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V.
For all of these reasons, the judgment of the district court is
AFFIRMED.
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