*1 Jеffrey Hanson, prior Hodg upon Pettigrew’s Mr. convictions John Daniel H. son, Jensen, Kafka, court. The expressly tribal Guidelines Michael Ben Kor King, contemplate departure Liljenquist, on this basis. man Carrie Marsha 4A1.3(a)(2)(A) Ludlow, (stating McIntosh, See U.S.S.G. Glenn William Angela Perry, Mulloy, based departure may upon be warranted Steven Peter sentence(s) Sermon, son, not “[pjrior computing Strange, used in H. H. John Alan history Walters, Willis, category (e.g., the criminal sen Lane P. Ben Plain offenses)”). tiffs-Appellees, foreign tences for tribal Pettigrew Mr. had several tribal convic v. including disorderly tions convictions SYBASE, INC., conduct, corporation; assault, Delaware aggravated endangering Fusion, Inc., minor, Financial a Delaware aggravated battery, the welfare of a corporation, Defendants-Appellants. damage. correctly points and criminal He out these that some of convictions were No. 04-4045. old, years more than ten and therefore would be included the criminal histo Appeals, United States Court of ry calculation if state federal Tenth Circuit.
court convictions. See U.S.S.G. Oct. 4A1.2(e)(2). Nevertheless, independent convictions, of the Tribal Court his crimi adequate
nal record reveals basis for one-criminal-history-point departure.
We all therefore decline reach the fac
tors the District Court considered find departure warranted. See United Harlan,
States
Cir.2004). We conclude that the District departure permissible
Court’s criminal degree departure —one
history category reasonable. —was
IV. CONCLUSION reasons,
For the foregoing we AFFIRM Pettigrew’s
Mr. convictions and sentence. Bryan ALLEN, Benson,
Julie Jessica
Bentz, Bess, Bradley, Matthew Mark
Gregory Burgess, Carone, Allen Jason
Jeffrey Coburn, Egan, L. Fredric Karl
Augusto Jay Falco, Gentry, Ellen *3 proceed- and remand for further part,
ings.2
I place In order to the facts this case (John Baum and Mel- F. Felicia R. Reid context, begin relevant we with a their briefs) Lamfalusi, with her on the E. issa WARN, which preliminary discussion Hirschfeld & Dellaverson of Curíale analysis. in our develop fully we will more Francisco, CA, Kraemer, LLP, San generally is a remedial statute that Defendants-Appellants. workers, protections provides *4 (Mark D. Stubbs Barnard N. Madsen by requiring families and communities brief) Spencer of Fillmore him on the with employers provide to notification 60 cal- LLC, Provo, UT, Plaintiffs-Appellees. for days plant closings in advance of endar layoffs. pro- and mass Advance notice KELLY, SEYMOUR, and Before vides and their families some workers EBEL, Judges. Circuit adjust to the prospec- transition time to to seek and employment, tive loss of SEYMOUR, Judge. Circuit and, jobs necessary, obtain alternative Plaintiffs, twenty-six1 former retraining or that training to enter skill Fusion, (FFI), Inc. filed suit of Financial successfully to allow these workers will company, Sy- parent FFI and its against compete in the market. (defendants), base, Inc., for viola- (Sybase) 639.1(a).3 § WARN directs Adjustment and 20 C.F.R. under the Worker tions (WARN). up sixty can for to employer 29 an be liable Retraining Notification Act to certain days’ pay filed back benefits seq. parties § 2101 et The U.S.C. jobs part of a employees who lose their summary judgment, and motions for cross re- closing layoff4 or mass without plaintiffs. plant court ruled for the district sixty days’ advanced notice. See judgment ceiving subsequently entered final court 2104(a)(1).5 may employer § An companies pay to dаm- U.S.C. ordering defendant sixty-day notice re- excused from the attorneys plain- fees to be ages, interest and was the quirement where a with WARN. Defen- tiffs accordance circum- of an unforseen business part, affirm in reverse result appeal. We dants Co., 720 n. twenty-eight, Coal Originally, plaintiffs Martinka numbered 1. Cir.2000) (quotations suit on and citations omit- withdrew from the but two individuals ted). 2003. October grant Motion to Strike At- 2. We defendants' below, depth in more 4. As we will discuss Appellees’ Brief. tachment 1 here, plant clos- a mass as relevant fifty more em- ing generally occurs when statute, Department of 3. Pursuant to the thirty-three percent of an ployees equaling regulations as "prescribe such Labor is to single at a site are laid employer's work force necessary carry may [the Act].'' out be thirty-day period. 29 U.S.C. during a off 2107(a). regulations § are thus "The U.S.C. 2101(a)(2)-(3). § Department pur- promulgated by of Labor and, statutory authority, if substan- suant to tive, equally Employers liable under are held 5. they are of law unless have the force required provide the failure to WARN for meaning of a with the clear irreconcilable plant closings and mass statute, for advance notice language, purpose, as revealed relates to a mass layoffs. This case history.” Am. v. United Mine Workers of 2102(b)(2)(A). § Neverthe- need to stance. Id. at would take actions reduce its less, operating costs. give an “shall as much no- employer and at shall practicable tice аs is that time Aplt.App. at FFI Sybase directed give a brief statement the basis profitable by it needed to be reducing period.” the notification Id. quarter fourth of 2001. 2102(b)(3). 'also directs that a Sybase’s In effort to meet financial employment number over of smaller losses FFI targets, engaged in a series of small a ninety-day period aggregated layoffs during quarters the first two layoff, thereby imposing constitute a mass company 2001. The four dismissed em- employer obligation provide on an ployees during quarter the first and five sixty days’ either notice or statutory back quarter. operating But FFI’s second pay employees. in lieu of notice to relevant during still costs exceeded its revenues: 2102(d). situations, In
Id. at these how- quarter first FFI operated ever, may disprove the exis- million; during loss the second $11 tence of a if it shows quarter, the loss was million. $5.6 employment individual sets of losses were early August the middle Id.; separate distinct causes. *5 quarter, FFI production third cancelled 639.5(a)(1)(h). C.F.R. product for a scheduled to be released the during quarter first of 2002. It then Having principles outlined basic of project engineers all the moved who were WARN, turn to the we facts of this case. assigned the 2002 a product, including employed FFI, Plaintiffs a were soft- majority plaintiffs, of work on a differ- company ware in bank- specializing retail ent product Septem- with a release date of software, ing capital and markets with a frame, 24. During ber this same time FFI broаd in base of its clients located New a planned in comparable size to the York City’s financial FFI district. is in year. terminations earlier On headquartered Concord, Massachusetts, in 7, 2001, September company terminat- but has in facilities various across states employees location, ed four at Orem all Orem, country, including one located in eventually plaintiffs of whom became in Utah, employed. where were case. FFI not provide instant did FFI wholly subsidiary is a owned of with employees advance notice of the ter- Sybase. Sybase acquired FFI in March minations, days’ nor in sixty pay lieu of 2000. During year, the 2000 fiscal FFI pursuant such notice to WARN. reported an operating approximate- loss of The employees terminated were offered ly Sybase’s million. According to $20.3 a severance package exchange sign- for Officer, Chief Financial Van der Pietier release form in which waived Vorst, FFI operate continued at loss any against claims had the company. throughout quarters the first three of 2001 language The relevant the form read: and I agree my Severance Benefit is in
fell far project claims, liabilities, short of the revenue and full satisfaction any targets Sybase action, budgeted had demands or causes of known or unknown, FFI in Sybase’s management had, 2001.... that I ever now have or repeatedly team to FFI against communicated claim to have had the Com- that, throughout 2001 for FFI pany any order ... parents [of] its as of the Release, meet the financial numbers target except date this claims for that had it by Sybase, compensation been established workers’ insurance and “Sybase FFI to elimi- Any plan, directed benefits. insurance unemployment discrimination, Orem, in- IT at its site. claims, positions nate 6 Utah whether law, Title VII 6 positions claims under state The elimination of these cluding or the Rights Sybase’s Act corporate of the Civil the result of consolida- Act, Employment Age Discrimination financial tion and was unrelated to FFI’s termination, con- breach of wrongful conjunction condition.” Id. In with the six tract, physical or public policy, breach by Sybase, FFI decided dismissals ordered any distress or other mental harm or employees an five to terminate additional claims, hereby forever released office “in an effort to cut from its Orem I that will not file agree promise I expenses.” Id. at 193. The quarter fourth any asserting such any legal action occurred on October 2001. dismissals claims. director, Neil FFI’s human resources given employees Id. Morris, notice and was aware WARN’s agreement and days to consider the seven requirements recognized payment an lawyer, and were allowed with consult dismissals, compa- with the October 31 days following execution three additional fifty employees had fired more than ny None of agreement to rescind. site. ninety-day period over a Orem attorney consulted with Therеfore, provided FFI the eleven em- waiver. signed each returned sixty fired on October 31 with ployees FFI met September On “in satisfaction of days’ pay and benefits product. Four date for the new release obligations company might] owe [the later, days on or about law.” Id. at 196. under state or Federal after the and two weeks *6 2002, Sybase proudly reported In January 11, airplane bombings World quarter] [fourth that FFI “bettered its (9/11 Pentagon bom- Trade and the Center produce expenses revenues and forecast forty-one employ- bings), FFI dismissed profitable quarter.” first company’s the ees, to ensure many of had worked whom Id. at 79. was released on product that FFI’s new on dismissed employees 7, time. As with the February on Plaintiffs filed this action 7, advance September provided none were 2003, fired without no- claiming were nor, in the terminations written notice of were in a mass and defendants tice alternative, sixty days’ pay and bene- them with obligated provide therefore Likewise, each of these WARN. fits under Defen- sixty days’ pay and benefits. back in form ex- signed release employees and liability under WARN dants denied from FFI. package for a change severance event, that, had any plaintiffs argued be- Twenty-four employees of these fired any by signing claims waived WARN in this case. remaining plaintiffs came the WARN, respect to defen- releases. With slightly losses were quarter FFI’s third terminations dants asserted million, but none- improved, equaling $4.9 did 7 аnd October 31 between mil- to a total of theless contributed $21.5 layoff trig- planned represent not lion in losses thus far 2001. and that statutory obligations, gering any layoffs during the rele- different the three October, Sybase’s Financial Of- Chief separate and ninety-day period were vant and plan initiated “a to restructure ficer meaning of the Act. distinct within Sy- company-wide on a basis consolidate (‘IT’) any potential WARN Finally, they claimed Technology oper- base’s Information under the un- excused liability should be In accordance with ations.” Id. at 189. exception during circumstances that period) forseen business terminated who are properly aggregated contained the Act. under Section 2102(d) or, are entitled to notice where motion for summary- Plaintiffs filed a denied, notice of remedy has been to the judgment May contending they sixty days lost, pay benefits jobs lost their in a mass without possibly attorneys’s reasonable fees. notice in violation WARN. On that Id. at 959. The court held had defendants date, issued scheduling same the court satisfy failed to their burden of establish- case, setting order for the discovery layoffs that the sets three between deadline August for October 2003. On early September late October 8, defendants filed a cross motion for sum- stemmed from separate and district causes mary judgment contending plaintiffs had The court WARN. reasoned that by signing waived claims even purpose firing six of the judge releases. A magistrate ap- еmployees in was due to October the reor- pointed non-dispositive to address matters ganization implemented plan by Sybase, for the case. Plaintiffs moved to strike the remaining five dis- Morris, portions of the of Neil affidavit part missed as FFI’s ongoing efforts which defendants had submitted to sup- reduce its Sybase’s costs and meet finan- port argument targets. court, cial According to the those were the result of the unfore- five employees contributed to a total seen impact economic associated with the fifty-one workers. n. dismissed Id. at 962 bombings. Plaintiffs asserted that 9/11 3.6 statements the Morris affidavit consti- The court plaintiffs also determined did hearsay. tuted inadmissible The magis- waive their signing WARN claims judge trate plaintiffs’ denied motion on the release The court forms. read During October summary language in any past the release to waive judgment hearing before the district court or present claims had the date 25, however, on November the court re- they signed agreement, but to exclude magistrate judge’s considered the ruling future claims. The court plain- concluded granted plaintiffs’ motion to strike. tiffs’ claims did not arise until October *7 subsequently district court granted 2001, when the final set of employees was summary judgment plaintiffs, in favor of laid off in and resulted an aggregated concluding that layoff under WARN. The court rea- [t]he WARN Act and its implementing soned that because the WARN violations regulations any make clear that within came being plaintiffs into after signed ninety-day period, forms, all terminated em- their they release had not waived ployees the (including employee first those claims. parties 28,
6. The
do not contest
that FFI
employees.
September
fired
fired four
On
it
fifty employees
over
equaling thirty-three per-
forty-one employees.
fired an additional
Fi-
31,
ninety-day
cent of
peri-
nally,
its work force over a
employ-
on October
a total of eleven
Likewise,
od.
appears
parties
it
and the
ees were fired
FFI's
from
Orem site. Based
calculations,
agree
district court
that
total number
on our
the number
off
of laid
employees
during
period equaled
employees
fifty-six,
fired
this
equals
fifty-seven,
not
as
fifty-seven.
unable, however,
We
parties
agree.
have been
and court seem to
This
parties
to
apparent
determine how
discrepancy
district
but uncontested
is of no
court reached
determining
that number. Based on
matter.
our
In terms
defendants'
WARN,
parties'
review of
liability
briefs and the
employee
record on
the one
dif-
7,
appeal,
appears
September
it
implicate
analysis.
on
ference
FFI
does
our
not
davits,
depositions
in
concluded defendants
attached exhibits
Finally, the court
party
light
their burden to show
most favorable
had not satisfied
Septem-
on
in
job
prevail,”
initiated
did not
this case the defen-
terminations
Simmons,
the unforeseen financial
were due to
dants.
Jacklovich v.
392 F.3d
ber 28
Cir.2004)
FFI. Al-
bombings
420,
оn
impact
(citing
of the
United
9/11
argued
Diebold, Inc.,
to the district
though
defendants
States v.
369 U.S.
they
(1962));
needed “more time
de-
court that
82 S.Ct.
deed Summary judgment claim, have stating “Defendants ed this “if appropriate pleadings, deposi- is (over years Sep- since ample time two had tions, interrogatories, answers to and ad- 2001) to make that determina- file, tember together missions on with the affida- tion, any provide ... have failed to vits, any, genuine if show that there is no Id. at 965. The admissible evidence.” any fact and that the issue as material summary judgment in favor granted court judgment as a moving party is entitled to Sybase FFI and and ordered plaintiffs matter of law.” Fed.R.Civ.P. 56(c). sixty days’ employees the former pay II attorneys and reasonable pay, plus costs fees, required WARN. begin by examining whether defen- We raise a number of issues can held liable to for a
Defendants dants challenging regard, the district court’s In this appeal under WARN. First, employ- contend that there ruling. defendants concede the number violation, plaintiffs ninety-day waived period was a WARN ees fired over exceed- so, by signing They redress that even rights fifty. argue to seek ed Second, they separate assert there and dis- release forms. different were for not constitute a mass no mass under WARN because tinct causes and did terminations employee the three sets of De- separate and distinct causes.
were liability generally A. WARN have been argue they also should fendants obligations be- excused from WARN one considers broad When forty-one layoffs cause the strokes, An easy it to understand. em- is by the unforeseeable fi- precipitated engages a mass ployer who bombings. impact nancial 9/11 sixty days’ give does context, challenge the district is impending terminations notice of the decision to exclude certain state- court’s days’ and benefits up sixty pay liable for Finally, Morris affidavit. ments from the jobs. employees who lost their to those *8 they are not liable under they contend ease, however, This cannot be reduced layoff a mass was not because WARN Rather, we must general broad strokes. intended, or and hence the indi- planned and determine particular sort out the facts jobs not “affect- who lost their viduals aggregated the Act’s how fit within relief under the employees” ed entitled to 2102(d). § layoff provision, 29 U.S.C. mass statute. than clear Unfortunately, is less WARN in layoffs occurring respect with to mass summary for
“On cross-motions highlight setting. As we summary aggregation an judgment, our review of the below, general- regulations must the statute record is de novo and we judgment planned, proposed, in of ly speak terms to be drawn from affi- view the inferences layoffs employer employee mass covered under an benefit plan and foreseeable provide from liability employment that arises failure to if had not the lоss occurred. settings. Although notice in WARN liability those Such shall be calculated for the liability aggregated violation, employer creates maximum period up to a 2102(d), § layoffs it does not mass under days, event of 60 but no for more than employer how and explicitly state when days of employ- one-half number aggregated setting. duties arise in an Nor employed by employer. ee was directly any have we able to find been 2104(a)(1) added). § (emphasis 29 U.S.C. guide resolving relevant case law us “employer” any An is “... business enter- controversy. colleagues As our instant that prise employs (A) or more em- — commented, on the Circuit Fourth “while ployees, excluding part-time employees; or it is clear the intent of the Act (B) 100 or more who in the employees given 60 would have all affected 4,000 aggregate work at per least hours days’ permit their notice before ” (exclusive overtime).... of week of hours affairs, employment them to their arrange 2101(a)(1). § layoff’ A is Id. at “mass inartful, of specific language the Act is (A) reduction in force is not which— confusing.” not United Workers Mine (B) closing;7 result of a plant Co., Am. v. F.3d Martinka Coal of employment results an loss at the Cir.2000). any site of single employment during begin portion We with the of the statute (i)(I) 30-day period at least per- for — specifically outlines the terms of an of employees (excluding cent 2104(a) employer’s liability. Section (II) part-time employees); and at least WARN states employees (excluding any part-time [a]ny who employer plant orders a clos- (ii) or least 500 employees); employ- ing or mass in violation sec- (excluding any part-time ees employ- tion 2102 this title shall liable to be ees) .... aggrieved employee each who an suffers 2101(a)(3).8 § Id. at loss employment result such
closing (A) pay or pertinent back In further out the fleshing for — day 2104(a)(1), § each at a of com- portion of violation rate terms the relevant (i) pensation less than the higher 2102 of WARN dictates “[a]n of— regular average rate shall a ... employer received not order during years 60-day such employee period the last 3 of until the end of a after the (ii) employee’s employment; serves written notice of such an (1) final rate regular received such em- to each employ- ... affected order — ” 2102(a). (B) ployee; an em- ee.... Id. at An “affected benefits plan ployee benefit described in section is employee” reasonably one “who 1002(3) title, including of this the cost of expected experience employment loss expenses during medical incurred consequence as a of a ... proposed ” employment layoff by loss which have been employer.... would Id. at "plant closing” per- employees excluding any part-time [T]he term means the more or'temporary single manent shutdown of a employees.... *9 employment, site of or one more facili- or 2101(a)(2). § Id. at operating single ties or units within a site of employment, the shutdown results in an (B)(i)(II) (B)(ii) 8. Neither subsections or of employment single loss at the of em- site 2101(a)(3) § are at this issue in case. ployment during any 30-day period for 50 increments, 2101(a)(5).9 words, they might an affected occur smaller § In other reasonably aggregate ninety- in the and over a could which employee is someone who layoff. layoff, day period to will constitute a mass by virtue of a mass expected, be specifically As relevant directs employment an loss. suffer here, “an loss means em- employment an lay- a ... determining whether mass termination, other than dis- ployment occur, employ- or off has occurred will cause, or voluntary departure, charge for groups ment losses 2 or more at a 2101(a)(6). Finally, § Id. at retirement.” single employment, site of each of which employee” employee is “an “aggrieved an than minimum of is less the number ordering employer for the who has worked employees specified section who, layoff and closing [2101(a)(3) or mass plant the of this title which in the ] but employer the a result of the failure as aggregate exceed that minimum num- title, 2102 of this comply with section ber, any 90-day and which occur within ... timely notice as re- did not receive plant be a period shall considered to be Id. at by section 2102 of this title.” quired closing or unless the em- mass 2104(a)(7). Hence, aggrieved § an em- ployer employ- demonstrates that the emрloyee who loses ployee is an affected separate the ment losses are result of the re- in a mass without his and distinct actions and causes and are quired notice. attempt by employer not an the to evade chapter. requirements the this therefore, Generally, when em added). 2102(d) (emphasis § The Id. at lay enough foresees it could off ployer “imposes an affirmative bur- statute thus un to constitute mass employees employer prove den on WARN, employer provide must der disaggregate employment court should sixty days’ notice. with advance employees 90-day during losses that occurred so, employer fails to do it must When Reg’l Hosp. period.” Hollowell Orleans up sixty pay employees the terminated Cir.2000). LLC, If in lieu days’ pay and benefits back burden, satisfy employer does not illustrates, But this case busi notice. who aggregate employees number of always tidy so ness are not jobs, “shall be considered to have lost their 2102(d) of the statute contained. Section layoff....” ... 29 U.S.C. requisite sometimes the acknowledges that 2102(d) added). (emphasis § losses sufficient to employment number of 31— September 7 and October layoff might not occur Between constitute a mass Rather, dis- fifty-eight-day period single thirty-day period. during a —defendants when, whom, for an to decide determining notice In order and to notice. required, regulations issuing the em- given, the WARN indi- whether notice is should be (i) days cate that ployer ahеad 30 Look should — days employ- whether behind 30 determine given at least 60 calendar notice must be will, planned taken and ment actions both plant closing days prior planned any 30-day period, aggregate reach regulations. layoff, these as defined in plant closing for a the minimum numbers When all are not terminated trigger layoff and thus the notice or a mass date, the date individual the same first requirement.... statutory 30-day or within the termination added). 639.5(a)(1) (emphasis 20 C.F.R. 90-day period triggers 60-day notice re- regu- ninety-day period mentioned in The day employ- A worker’s last quirement. lay- aggregated mass is associated with lation the date of that worker’s ment is considered 2102(d), an issue under 29 U.S.C. off claims subsequent group each first we address days' are entitled to a terminees infra. full *10 652 fifty-six employees.
missed They There has causes. assert September the four job been no assertion these terminations terminations by were caused FFI’s difficulties, represent thirty-three percent less than financial forty-one while the employment September the full time work force at the FFI losses on Orem 28 were site, the result of employer significant or that FFI is not an “the financial under fall- 2101(a)(1); §§ out from Aplt. See id. at the events of Br. WARN. at 9/11.” 2101(a)(3)(B)(i)(I). 2102(d) Applying Finally, they maintain the October 31 case, layoff of eleven enough employees employees Sy- this were laid off was due to aggregated reorganization base’s IT department. constitute an argue unless Defendants accordingly defendants establish September job layoffs those losses were for separate separate were distinct September distinct causes. from the 7 layoffs, so layoffs those two aggregat- should not be B. Separate and distinct causes claim, They ed. “[f]inancially-based lay- September offs 11 were due to the A mass will not be deemed to after post-9/11 new and different economic real- have occurred can show ities. September When the four 7 layoffs employment losses were the “result of total, are left out of the the number of separate and distinct actions and causes layoffs attributable to cost cutting meas- attempt by and are not an the employer to ures in the wake of is 46.” at Id. requirements evade the of’ WARN. Id. at 9/11 added). 2102(d). (emphasis Hence, in contrast agree with We the district argument their court, before the district court that defendants have not sufficiently appear defendants now to assert that raised an issue of fact on point first set of September terminations in summary judgment. survive separate and distinct from the other argument Defendants’ regarding the layoffs. two rounds of separate and distinct causes for the three (cid:127) brief, In reply their layoffs morph sets of defendants represents moving target. “separate their In and distinct” argument their motion for summary judgment back something they posi- more akin to the argued that tion presented to the district court. six terminated FFI incarnation, In this they place the line of 31, 2001, on October were laid off due to separate demarcation for and distinct em- “separate Sy- and distinct cause” of ployment actions after the IT reorganization plan.... base’s FFI’s firings. They claim is clear that “[i]t termination of these six IT employees entire October [layoff] was due to unrelated to financial difficulties separate causes and distinct from either of that precipitated the layoffs other September layoffs and should not be 90-day Orem within period. aggregated Aple. with them.” Reply Br. added). Aplt.App. (emphasis They at 18. appeared to contend that Sybase the six IT separate October and dis We are underwhelmed defendants’ tinct from employment arguments inconsistent and limit our re- losses, and therefore no oc position they view to the presented to the however, curred. appeal, On defendants district court. See Bancamerica Commer- argument shift their somewhat. Corp. Kan., Inc., cial v. Mosher Steel of opening Cir.1996) brief contend each of the 798-99 (“[W]here layoffs in this case arose from distinct a litigant changes to a new theo-
653 alternative, that falls under the same leased such claims. In ry appeal category argument present they as an general escape liability assert under that presents theory at trial or exceptions ed WARN’s unforseen business vague ambiguous way in a circumstances, disсussed plaintiffs or because theory ap will not be considered on persons” not “affected entitled to relief as omitted)). peal.” (quotations and citation aggrieved parties under the statute. We argument, initial it is As to defendants’ argument address each in turn. separate
immaterial that the and distinct employment cause for six of the losses on A. The release forms Sybase’s reorganization October 31 was In summary defendants’ motion for department. IT Even company-wide judgment, they plaintiffs contended waived excluding employees those six from the rights bring a civil against action calculation, in layoff mass FFI made the them when signed the release forms. dependent decision to fire another five em posit if they Defendants violated quarter “in an to cut fourth ployees effort any manner, WARN the violations nec- Aplt.App. at 193. one expenses.” When essarily occurred at the time FFI termi- together employees the four from the adds plaintiffs prior nated the without notice. terminations, job forty- 7 They state “a Act claim WARN accrues from the 28 ter employees one employee when an is notified he or minations, employees and the five from the being she is having terminated without terminations, employ October 31 the total given days’ requisite been 60 advance equals fifty.10 ment losses It was defen Aplt. They notice.” Br. at 32. thus assert present dants’ burden to evidence that the plaintiffs’ WARN claims were existence something employment losses were due to they signed at the time the release forms Sybase’s other than FFI’s efforts to meet and therefore were waived. profitable by final quar mandate to be A only WARN violation can occur after They of 2001. failed to meet ter satisfied, which, a number of elements are Paperworks burden. See Int’l United Un aggregated due to the nature of an mass Conrrugated Corp., ion v. Alden Container (D.Mass.1995) layoff, happen not all at the time. will same F.Supp. 901 435-36 foremost, (“Bates First and there must be a mass carry has failed to its burden of Then, it must be determined proof separate distinct causes for [of 2102(d).”). comprised who layoffs] as allocated under whether notice, layoff mass should have received showing the absence of evidence i.e., However, employees. were affected employment separate losses were layoff all until distinct causes and not the result of unless and the mass threshold situation, precarious crossed, FFI’s financial is has not violated properly aggregated terminations were it of a WARN. Hence is the occurrence 2102(d) layoff to constitute a mass under trigger poten- that is crucial to See, of WARN. liability employer. tial for an WARN e.g., Sys. Corp,, Amatuzio v. Gandalf Ill (D.N.J.1998) (indicating F.Supp. aggregated liability prior Even oc- no WARN can be considered curred, argue they determining defendants are not lia- whether a mass oc- curred); Corp., ble Bradley Sеquoyah because re- Fuels 10. See note 6. supra (first (E.D.Okla.1994) & Retail Food F.Supp. sale Distrib. Local *12 F.Supp. perfect claim at It considering
element in
is
331-32. makes
sense
WARN
occurred).
terminations
layoff has
where
coincide with the
whether a mass
layoff
of a
plant
occurrence
mass
clos-
contrary, defendants cite
Arguing to the
ing,
employee’s
an
claim would
WARN
they claim
their
support
a number of cases
accrue at that time. The same cannot be
claim
position
employee’s
that an
WARN
regarding
aggregated
layoff.
said
an
employee
learned
accrues at the time
factually
Auto. Mech. Local 701 is
distin-
v.
of his or her termination. See Joe
First
guishable
controversy.
from the instant
Inc.,
Sys.,
Bank
ployer to show that that the events of event occurred which unexpected’ part, precipitated substantial a” mass under WARN. precipitated rely Aplt.App. 191-92. Defendants circum- Id. an unforeseen business Where evidentiary sentences as the ba- these two from prevented stance has sis of their claim that the unforeseen im- *14 WARN, timely under providing notice pact bombings of the was the cause of 9/11 “give must still as much notice 28, 2001 terminations at the practicable as is and at that time shall essence, In they argue Orem site. of the for give a brief statement basis statement impact this is evidence reducing period.” the notification 29 bombings required Morris 9/11 2102(b)(3). § U.S.C. forty-one fire the employees. Defendants contend contested issues of admissibility In arguing of Mor- regarding fact exist whether the bom- 9/11 statement, ris’ defendants concede his an bings were unforeseen business circum- Sy- reference his conversation with the prompted stance that 28 hearsay. They base executives is nonethe- firings, thereby precluding summary judg- less claim the statements are admissible plaintiffs. ment for The district court dis- exception under the statements re- agreed, holding defendants had failed to 803(3).12 membered belief. Fed.R.Evid. proffer evidence raising admissible fact 803(3) permits Rule evidence out-of- issue on this matter. See Loehrer v. regarding court statements a declarant’s Douglas Corp., McDonnell 98 F.3d existing then state mind where the (8th Cir.1996) (defendant employer 1060 goes statement to the declarant’s intent to statutory has burden to show affirmative perform a certain act. See United States apply). defenses Best, (2d Cir.2000) (“A 219 F.3d 198
Defendants’ unforeseen business circum- declarant’s out-of-court statement as to his argument hinges stance on two sentences perform intent to certain act the fu- in an appearing affidavit of FFI’s Human hearsay ture is excludable on Director, Resource Neil Morris. Those grounds.”); Donley, United States v. 878 following: sentences state the (3d Cir.1989) (“Statements F.2d 803(3) Based on a I conversation had with a admitted under Fed.R.Evid. to show Sybase executive and plan may senior human re- the declarant’s intent or be used 803(3) permits hearsay including memory 12. Rule where the statement of or belief relates prove statement the fact remembered believed execution, mind, unless it relates to the revoca- existing the declarant’s then state of tion, identification, sensation, emotion, physical or terms of declarant's condition intent, motive, (such plan, design, will. mental health), 803(3). feeling, pain, bodily and but not Fed.R.Evid. magistrate that the declarant acted in accord judge to show assigned in this case plan.”); with that United States v. Free- non-dispositive address matters. See 28 man, (10th Cir.1975) 636(b)(1)(A); U.S.C. see also Lithuani (Rule 803(3) allows admission of an out-of- Corp. an Commerce Ltd. v. Sara Lee Ho court statement to show a future intent of (D.N.J.1998) siery, 179 F.R.D. act). perform the declarant to (magistrate’s evidentiary rulings, even where may ultimately affect the out In making argument, defendants defense, come of a claim or non-dispos point to a general appearing statement itive orders U.S.C. earlier in Morris’ affidavit that states 636(b)(1)(A)). Plaintiffs filed a motion my I commenced employment with FFI to strike the two contested sentences from in November position affidavit, the Morris claiming they lacked Senior Director of Human Resources. foundation and were based on inadmissible position, responsible this I am for a hearsay. parties The briefed the issue and variety employment-related issues, presented arguments oral magis to the including conducting overseeing judge. trate At hearing, judge layoffs, interpreting applying stated that Morris’ “statements constitute employment policies practices hearsay, but I find that are admissi compliance with state and federal em- 803(3)’s] pursuant ble to [Rule state of ployment laws. ” exception.... mind Aplt.App. at 1008. Aplt.App. at marry 191. Defendants magistrate judge’s order on the same *15 language with Morris’ hearsay statement issue simply stated “Plaintiffs’ Motion to regarding the “conversation had with [he] Strike Portions of the Declaration of Neil Sybase a executive and senior human re- Morris ... is denied....” Id. at 783. employee” regarding likely sources the im- pact bombings would have on Plаintiffs failed to file a timely objection 9/11 Sybase this, and its subsidiaries. From to magistrate judge’s pursuant decision 72(a) argue Morris’ statement evidences his to Rule of the Federal Rules of Civil existing “then state of mind ... such as Procedure. That rule states intent, motive, plan, design,” Fed.R.Evid. days 10 after being [w]ithin served with 803(3), him which led to decide to fire the copy order, a of magistrate judge’s a forty-one employees September on 28. party may objections serve and file to order; rejected
The district court party may defendants’ a not thereafter argument and held the portions assign magis- contested as error a defect in the of Morris’ statements should be excluded. trate judge’s objection order to which The court then determined that because timely was not made. The judge district presented defendants had no other evi- assigned to whom the case is shall con- dence that the 28 objections modify sider such and shall by caused bombings, they failed to set aside portion magistrate 9/11 of the create a triable issue of fact supporting the judge’s to clearly order found errone- unforeseen excep- business circumstances contrary ous or law. to tion. 72(a). See also 28 U.S.C. Fed.R.Civ.P. 636(b)(1)(A) (“A appeal, §
On defendants contest judge the dis- of the court portions trict court’s exclusion any pretrial reconsider matter under this (A) Morris In affidavit. the midst of this evi- subparagraph where it has been shown dentiary procedural issue is a quagmire. magistrаte judge’s clearly that the order is law.”). As opinion, contrary referenced earlier this erroneous or Never- 658 non-dispositive judgment magistrate judge’s order.
theless, summary during court, plaintiffs However, timely the district failure to seek hearing party’s before motion to strike. again raised their a district court of its strip review does not agreed it with the initially stated court See, e.g., power to revisit the issue. Unit per- judge’s decision but would magistrate 566, Flaherty, 668 F.2d 585 ed States v. it to convince otherwise. mit (1st Cir.1981); Raymond Corp., Phillips v. understanding that The court stated (N.D.Ill.2003); 521, 523, 525 213 F.R.D. maker and the decision “Mr. Morris was Hale, F.Supp.2d v. 159 Anderson had heard from someone that since he (N.D.Ill.2001); v. Cadillac Johnson bombings would have devastat- a] [the 9/11 Inc., F.Supp. Group, Plastic he went company] effect [on (D.Colo.1996); generally 12 see also forty-one to fire the and decided ahead” Arthur R. Miller & Wright, Alan Charles ApltApp. at 28. L. Marcus, Federal Practice Richard & out that Morris pointed 1019. Plaintiffs (2d ed.1997). 353-56 Procedure in his affidavit he never asserted similarly has so held the relat Case law Septem- decision to conduct made the authority of a district court’s ed matter response, the court layoffs. ber 28 In dispositive magistrate judge orders review the issue. Id. asked defendants to address See, object. party to which a has failed argued question Defendants Kruger e.g., Apfel, v. F.3d 786-87 already fully par- briefed had been (7th Cir.2000); Califano, Webb magistrate judge. ties and decided (E.D.Cal.1979); see also F.Supp. Pointing nothing other than the Morris Wright generally supra, Miller, & documents affidavit and some unverified 3070.1, case, the instant there it, accompanying defendants also tried fore, pow the district court was within its persuade the court that Morris did more hearsay merely Sep- question er to reexamine the sur than conduct oversee firings. The court was not con- tember 28 rounding the Morris affidavit.
vinced, point exclaiming with exas- one sakes, not the
peration “for heaven’s he’s reexamining question, In maker, problem.” decision that’s the Id. required district court was to “defer to the at 1042. The court then excluded Morris judge’s ruling unless it magistrate [was] hearsay. statements as contrary clearly erroneous or to law.” 562, Pfeil, v. 566 Hutchinson 105 F.3d defendants note appeal, On Cir.1997) (10th objection mag- timely (citing failed to file a 28 U.S.C. n judge’s ruling pursuant 636(b)(1)(A); 72(a); istrate Rule Fed.R.CivP. 72(a), thereby waiving right to have City County v. & Francis- Grimes San magistrate the district court review (9th Cir.1991)). co, 236, 951 F.2d 240 Un- judge’s denying order their motion standard, clearly der the erroneous “the strike. Defendants contend the district affirm it reviewing court unless ‘on [must] plain- court not have entertained should with the definite the entire evidence is left arguments regarding tiffs’ belated and firm conviction that a mistake has ” only par- Morris affidavit. Defendants are Corp. committed.’ Ocelot Oil v. been tially correct. (10th Indus., Sparrow 847 F.2d 1464 Cir.1988) v. (quoting United States U.S. 72(a), statutory com Rule and its Co., 364, 395, 636(b)(1), Gypsum 333 U.S. 68 S.Ct. panion, place see 28 U.S.C. (1948)). 525, L.Ed. 746 ability on a to seek review of 92 party’s limits
659
turn,
ployees.
we review the district
If Morris was not the decision
final evidentiary ruling
cоurt’s
for abuse of maker regarding those firings, then his
Cestnik,
discretion. United States
36 thoughts, beliefs or
regard-
remembrances
(10th Cir.1994).
F.3d
906
“Under this
bombings
impact
and their
9/11
standard, a trial court’s decision will not be Sybase and FFI are irrelevant. They are
appellate
reversed unless the
court has a more accurately deemed to fall within the
definite and firm conviction that the lower
803(3)
exception listed
Rule
that makes
court made a clear error of judgment or
inadmissible
memory
statements “of
or be-
exceeded the bounds of permissible choice
prove
lief to
the fact remembered or be-
in the
Bryant
circumstances.”
v. Farmers
803(3).
lieved.” Fed.R.Evid.
His state-
Exch.,
Ins.
Cir.
“spoke
ments
not to then-existing state of
2005) (internal quotation and citation omit mind,
act,
but ‘spoke
past
to a
and more
ted).
that,
than
to an act
some one not the
”
speaker.’
Cintolo,
United States v.
We do not
think the district
(1st
Cir.1987)
F.2d
(quoting
evidentiary
court’s ultimate
decision repre
States,
Shepard
96, 106,
v. United
290 U.S.
sents an abuse of discretion. Defendants
(1933)).
most,
S.Ct.
As noted
Rule
ture is not
on hearsay grounds.
excludable
relevant,
out-of-court statement
such a
regarding
declar-
statement
be intro-
If
then-existing
ant’s
prove
state of mind where the
duced to
that the declarant thereaf-
statement serves as evidence of the declar-
ter acted in accordance with the stated
Best,
perform
ant’s intent to
an act. Defendants
intent.”
(emphasis
Morris’ 9/11 701(a). Fed.R.Evid. The dis- witness.” impact Sy- likely have bings would court did not abuse its discretion trict based, most, on an and FFI was base deeming portions inadmissible of the Mor- two un- he had with alleged conversation ris affidavit.14 Sybase employees. and unidentified named hearsay cannot serve as These statements of Mor Upon excluding portions basis for Morris’ under- the foundational statement, court ris’ the district deter bombings. regarding the standings 9/11 present that defendants failed to mined Hosp., Mem’l 993 Hong See v. Children’s to any evidence to create a triable issue as Cir.1993). (7th Nor does F.2d September whether the any other foun- provide Morris’ statement The by bombings. fact caused the 9/11 understanding that support his dation rejected suggestion court also defendants’ bombings actually precipitated the they needed “more time determine 9/11 layoffs. contested 2001 indeed caused whether layoffs.” lack foundation be- at 965. The court Aplt.App. sufficient statements ample had they fail ruled “Defеndants have time cause to demonstrate Sybase represented unnamed executive or human re tract cancellation an unforeseen agreed. circumstance. The court employee business mentioned in Morris’ affi sources hindsight, though, with Id. at 1062. Even asserting davit. Defendants are not that we concluded the "death knell” for the court un should consider the statements those began prior specific to sound contract at issue prove and unidentified executives to named cancellation, to its actual the court nonethe- mind, intent, existing plan or state of was unforeseeable less held the cancellation Rather, 803(3). motive. See Fed.R.Evid. de stated at the time. The court regard contend statements fendants Morris' necessarily regulations Act and its rec- [t]he Sybase with the the conversations he had ognize that even the most conscientious em- plan executives show Morris’ intent and perfect, ployers are thus allow not forty-one employees of the fire the because flexibility predictions ulti- needed about bombings. impermissible ap This is an 9/11 that, consequences though objectively mate 803(3). plication of Rule The rule cannot be reasonable, proved wrong. long So as it by receipt a statement used “authorize fairly be said that the eventual still [here, Sybase person executives’ state one closing by plant is caused ments,] proof [Morris'] as of another’s state оf sudden, dramatic, unexpected event Hong Hosp., mind.” v. Children’s Mem’l control, excep- employer’s outside (7th Cir.1993). F.2d See also applies. tion Joe, States v. 1493 n. 4 United Hence, though Id. at even it was evi- Cir.1993) (“An out-of-court statement dent after fact that the cancella- contract relating third-party’s state of mind falls out pending, tion had been was still scope hearsay exception side the be rely able to on the unforeseen business cir- necessarily cause such a statement is one of exception it acted cumstances because belief."); employers memory "would reasonable within its own No. 93-650 H.R.Rep. by giving (1973) market” notice sooner. Id. The reprinted in 1974 U.S.C.C.A.N. Loehrer, In ("the same cannot be said here. intends that [Rule Committee was in fact caused the unfore- 803(3) ... ] be construed so as to render Thus, seen event of the contract cancellation. statements of intent a declarant admissible causation was not contrast, issue in that case. conduct, only prove his future not the fu *18 fully and as we discuss more in the Again, person”). ture conduct of another text, presented defendants have no ad- here regard Morris’ statements are in to his memo Therefore, missible evidence as to causation. belief, ry and and cannot be construed as inapposite. Loehrer is intent, proof plan of his or motive. See Fed. 803(3). base, 14. At defendants are confused as to R.Evid. 803(3)'s applicability. de- Rule The relevant Morris, case is but the clarant not (over 2001) 56(f). 11, years September since two Defendants did not act Fed.R.Civ.P. 56(f). determination, to make that and ... have accordance with Rule any to provide failed admissible evidence.” Plaintiffs filed their motion for summary Id.15 judgment May 2003. In defendants’ motion, response they to this argued in a agree with the court’s decision not to
We footnote that should be more afforded provide defendants with additional discov- time to engage discovery to determine First, ery time. and as detailed the exactly how bombings impacted 9/11 WARN, regulations supporting test “[t]he their financial They status. contended determining when business circum- reasonably stances are not fo- foreseeable minimum, [a]t Court should allow employer’s judg-
cuses on an business Defendants additional 639.9(b)(2). time to conduct ment.” 20 C.F.R. This is thorough and analysis detailed financial objective test that requires the “em- regarding precise nature of ‘sudden, l’s ployer show that dramatic 9/1 impact on its business and the causal unexpected’ pre- event occurred which relationship between the financial effects cipitated a” mass under WARN. and the lay- Adjustment Retraining Worker Notifi- 9/11 when, off at all, Orem. The issue of cation, 16,042, *16,062 Fed.Reg. (April 1989) (codified may Defendants 639). have owed WARN no- at 20 C.F.R. Of tice to Plaintiffs cannot course, prematurely be bombings were an unex- 9/11 disposed summary of on judgment given However, pected and unforeseen event. the unforeseeable business circumstance court, aptly noted the district defen- dants failed to 9/11. produce, up even to two event,
years after the evidence that Aplt.App. at 183 n. 11. In their reply to bombings did in fact cause the 9/11 opposition, plaintiffs defendants’ noted layoffs. They begun have even “if Defendants wanted ‘additional time to point. meet their burden on this More- conduct thorough and detailed financial over, if defendants wanted more time for analysis’ proof to meet their burden of ... discovery prior to the district con- court’s sought should have a stipulation or plaintiffs’ sideration of the motion for sum- 56(f) filed a Rule affidavit and motion be- mary judgment, they should have filed a filing Opposition.” fore their Id. at n. 56(f) 56(f), Rule motion. Pursuant to Rule Regardless, no defendants took action. [sjhould it appear Additionally, from the affidavits of pursuant to the schedul- party opposing court, place by the motion that order set in the district party present cannot for reasons stated technically defendants still had until Octo- 15, 2003, affidavit justify facts essential to ber more than a month prior party’s opposition, may the court the summary judgment hearing, aplt. refuse see application judgment or may app. complete discovery or- permit der a continuance to gather support argument affidavits to evidence to depositions be obtained or taken or bombings were the cause of 9/11 discovery to be had or make such at the Orem site. just. other order as is appear Defendants do not to have taken 15. We note, regard, in this that FFI submitted but makes no mention of how or to what Sybase’s an affidavit from chief financial offi- bombings impacted extent the com- 9/11 cer, Vorst, 24, 2003, July Pieter Van der dated pany. Aplt.App. See 187-89. which describes the financial decline of FFI *19 Indeed, employees. employees affected Affected along these lines.
any steps may reasonably expect- are those “who by filings before plaintiffs asserted by experience employment ed to loss as a court, again and raised an district layoff ... consequence proposed arguments, wonders “[o]ne court at oral ” employer.... an 29 U.S.C. at chose not to submit why Defendants 2101(a)(5) added). Sybase (emphasis ques- unnamed execu- [the affidavit from affidavit], any plaintiffs tion remains whether are in the Morris tive referenced aggrieved employees or decided under the statute. who directed information about layoff September on 28 to conduct they Defendants assert do not have 2003,” Aplt.App. reason. and for what obligations plaintiffs under WARN be- 725, n. 3. layoff proposed not cause the mass request in its brief footnote Defendants’ planned plaintiffs therefore not discovery pass time not for additional does employees.” “affected Defendants con- 56(f). In under rule Comm. muster they tend did not know on 7 or Campbell, 962 F.2d First Amendment sepa- when lаid off two (10th Cir.1992), 1517, 1522-23 we deemed groups employees, rate that a mass 56(f) of Rule purposes insufficient for the layoff might following occur in the month. attorney memo unverified statements October, They only in claim it was late regarding randa the need for additional terminations, final with the set Auto. discovery. See also Miller v. Club they enough employ- knew had fired N.M., n. 17 420 F.3d layoff, ees to constitute a mass at which Cir.2005); v. Lear Petroleum Pasternak point they provided the last set of termi- Inc., 832-33 Exploration, sixty days’ pay and employees nated bene- (10th Cir.1986). Even defendants were Therefore, they say, impossi- it was fits. district court’s exclu disadvantaged provide required sixty ble for them to affidavit, of the Morris portions sion of jobs days’ employees notice to the whose argument they undermined their own re September. were terminated in The mass circum garding the unforeseen business ultimately arose because exception by failing properly stances terminations was thus not plaintiffs’ discovery light time. request additional planned plaintiffs or foreseeable and were evidence, of causation absence employees” not “affected to whom notice in ruling against district court did not err under was due WARN.
defendants on this issue. summary In plaintiffs’ judg- motion for issue, they argued in ment on this affected/aggrieved C. Were broadest of terms when defendants employees under WARN? enough employees ninety-day laid off in a layoff has oc Even where a mass layоff pursuant period to constitute a mass 2102(d), employer curred an pursuant 2102(d), employees §to laid off automatically is liable WARN. sixty-days pay and entitled to back bene- employee employ An has an who suffered provide did not fits because defendants ment in a must still loss show They ApltApp. notice to them. “aggrieved” he or she is under the statute. employer thus asserted that an is liable to above, all in the Al- aggrieved employees As noted dismissed essentially jobs though agreed in a mass the district court are those who lose their plaintiffs reasoning, per- notice with we are not receiving without requires provide them as suaded. *20 to argument ignores experience employment
Plaintiffs’ the statuto- an loss as employer liability only that ry consequence proposed command of a ... mass i.e., em- aggrieved employees, to by extends employer.” their 29 U.S.C. 2101(a)(5). for the em- ployees “who worked [have] § portion But the cited the ... mass ployer ordering disputed Morris affidavit creates a issue of who, a result of the failure of the em- as regarding material fact plaintiffs whether comply to with section 2102 of ployer were in fact employees,” preclud- “affected timely ... did not receive notice [WARN] ing summary judgment in favor of plain- required by 29 U.S.C. [the Act.].” tiffs. therefore portion We reverse this 2104(a)(7). § earlier in the As we noted the district summary judgment court’s rul- aggrieved employees must also opinion, be ing, proceed- we remand for further i.e., employees, “employees who affected ings on the disputed issue of whether experience be to may reasonably expected plaintiffs were affected employment consequence an loss as a 2101(a)(5). 29 U.S.C. ... employ- their
proposed IV 2101(a)(5) added). (emphasis er.” Id. at they Plaintiffs have not established reasons, For the foregoing we AFFIRM are not aggrieved employees and therefore summary district court’s denial of summary judgment. entitled to defendants, judgment in REVERSE part grant summary judgment recognized Defendants below that plaintiffs, REMAND pro- for further plaintiffs “filed numerous affidavits in ceedings light opinion. of this they imply which that Defendants had ad knowledge layoffs vance of Plaintiffs’ KELLY, Judge, Circuit dissenting. layoffs according conducted to [a] these bought peace The defendants their with predetermined Aplt. scheme or schedule.” plaintiff signed when each They App. then asserted “Plain exchange broad release in for a severance allegations directly tiffs’ conflict evi with (that benefit otherwise would not have regarding dence adduced Defendants paid) consisting been of four weeks of the plans respect layoffs with at the ” plaintiff-employee’s salary, plus base two In particular, Orem site.... Id. defen salary every additional weeks of base proffered dants an affidavit from Neil completed year of Under Morris that service. part indicated analysis, plaintiffs may court’s be enti- FFI laid off a total of [o]n only pay granted tled the severance site, 4 employees from the Orem all of release, exchange sixty for the but also whom are Plaintiffs in this lawsuit. days pay back in accordance with the During 90-day preceding and includ Act. WARN 7, 2001, ing September FFI laid off a total of 12 employees from its Orem site. The court that in an holds the case of 7, 2001,
As of
FFI did not
aggregated
layoff,
employee’s
plan
any significant
to conduct
additional
Act claims do not accrue until all
layoffs during the remainder of the third
satisfied,
elements of such a claim are
quarter of 2001.
including
requirement
of a mass
time,
contrary
Id. at 191.
At
court
that the
Plaintiffs’
evidence
the same
holds
provides support
general
duty
notify
prior
proposi-
occurs
to the
ultimately
tion that
were “affected
employees”
aggregated
will
be
to com-
“reasonably
expected
could
prise
layoff. According
the mass
to the
*21
occurred,
all,
if at
“as of the
only
must have
court,
in this case1
covers
the release
date of
release,”
claims as
past
present
date of this
and therefore the
claims,
future
includ-
and excludes
signing,
from
agreement released the defendants
accrue after the release
ing claims which
liability
from it.
potential legal
arising
all
reasons that be-
signed. The court
that
begin
proposition
We
with the
not ac-
Act claims did
cause the WARN
oppo
that
party
a
establishes
his
“[o]nce
signed, the
until
the release was
crue
after
that
signed
nent
a release
addresses
by the release.
plaintiffs are not barred
words,
issue,
Act
once the WARN
adequate
In other
claims at
received
consid
accrued,
applies
Act
claims
WARN
release,
eration,
op
and breached the
only
then would the
have such
demonstrating
ponent has
burden
authority
to release. Some
exists
claims
invalid
the release was
because
that a
contain-
proposition
for the
release
fraud, duress,
mistake,
material
or some
limitation does not encom-
temporal
Phillips
Pe
other defense.” Williams
not accrued because
pass claims that have
(5th
Co.,
930,
23 F.3d
935
Cir.
troleum
into
elements must later come
exis-
certain
1994).
parties
disagree
in this case
fall within a fair
tence unless such claims
enough
about whether the release is broad
In re
reading of the release terms.
Vehm
claims;
Act
encompass
(9th
186,
Eng’g
521 F.2d
188-89
Corp.,
dispute
no
the release is
there is
Cir.1975);
Am.
see also Sherman v.
Water
encompass
as to the
it
enforceable
claims
Co., Inc.,
455,
459-461
Heater
S.W.3d
Tel.
Wright
es. See
v. Southwestern Bell
(claim
mandatory
(Tenn.Ct.App.2001)
(10th Cir.1991)
Co.,
1288,
925 F.2d
employ-
did not arise until
indemnification
seven factors to
considered in
(listing
final,
judgment
favorable
which
ee had
release);
deciding
knowing
a release is
Schenck v. Minolta
whether
came after
(Colo.
Inc.,
Sys.,
802 P.2d
voluntary).
Office
(malicious prosecution claim
Ct.App.1990)
release,
interpreting
our
is to
subsequent
until
fa-
did not accrue
after
give
parties
effect to the intent of the
prosecution,
termination of
which
vorable
signed.
when the release was
Joe v. First
release).
came after
(8th
Inc.,
Sys.,
Bank
202 F.3d
Here,
legal duty
notify
and its
Cir.2000).
specifically
A
need not
release
breach occurred before the release was
encompass
Act claims to
mention WARN
executed,
reading
and a fair
of the release
Int’l
them. See
Ass’n Machinists &
encompasses
is that it
such claims. It is a
Workers,
Aerospace
AFL-CIO v. Compa
mistake to focus on the date of accrual
Aviacion,
C.V.,
nia Mexicana de
S.A. de
circumstances,
than
date
these
rather
(5th
Cir.2000);
199 F.3d
on which the defendants breached their
Williams,
legal duty
plaintiffs.
policy
to the
This breach
936. Public
discrimination,
provides
pertinent part;
including
1. The
claims under
release
law,
Rights
state
Title VII of the Civil
Act of
agree
my
I
Severance Benefit is in full
Age
Employ-
claims, liabilities,
1964 or the
Discrimination in
any
de-
satisfaction of
termination,
Act, wrongful
action,
breach of
ment
mands
causes
known or un-
or
contract,
known,
had,
public policy, physical
breach of
that I ever
now have or
distress,
any other
or mental harm or
against
Company
claim to have had
claims,
hereby
and I
any
parents,
forever released
... as of the date of this
[of]
Release,
agree
promise
any
except
that I will not file
claims for workers' com-
asserting any
legal
pensation
unemployment in-
action
such claims.
insurance and
Any
Aplt.App.
surance
claims whether for
benefits.
of unambiguous
uously
favors enforcement
re-
reveal an intent
every
cover
Joe,
agreements.
imaginable
”);
lease
WL at *1-3 Aug.10,
2005).
Indeed, it is doubtful that a release validly
could lacking waive claims a nexus to events which have occurred and still be Larry MAYNARD, D. Petitioner- public consistent with policy. There is no Appellant, requirement every element of a cause v. of action be satisfied as of the date of the release. Rather past, present future Bobby BOONE, Respondent-Appellee. claims, liabilities, demands, or causes of No. 05-5063. contemplated. Chaplin action are See Corp., NationsCredit Appeals, United States Court of (5th Cir.2002) (construing release “from Tenth Circuit. claims, suits, any demands, and all or other Oct. causes of action of ... arising kind any time in the past” noting unlimited unambig- terms of the “[t]he releases