GERALD ROBERTS, STEPHEN JOHNSON, CHRISTOPHER MCLEOD, DAVID SHAW, ANITA JOHNSON, CHRISTOPHER HUMPHRIES, JEFFREY WILKINS, LATANYA MARTIN-RICE, LAURA SANCHEZ, LUCY MUNOZ, NATALIO HERRERA, RADIKA KANHAI, ROGER SIERRA, YOON SUNG KIM, CHRISTINA LAMBRU, IRENE TSOROROS, MARIA DIAZ, CYNTHIA DURAN, JASPER JONES, ALLEN CHERFILS, LISA LUNDSREN, TERESA AREVALO, SYED A. HAQUE, AHMED TALHA, OLIE AHMED, JAMAL AHMED, SORWAR HUSSAIN, LUZ OSPINA, JOHNNY MURILLO, THOMAS DORGAN, SENECA SCOTT, ERIC LEE, WILLIAM BOONE, MARLENNI MINAYA, ISABEL PENA, CELESTE BROWN-POLITE, DWIGHT CURRY, RAWLO BENFIELD, JOSEPH BROWN, SANDRA MILENA-MARTINEZ, MARINO CANO, ABIGAIL APPIAH-OTCHERE, DALIA TOPPIN, ANA MOREIRA, BETSABE TORRES, LORNA BENT, OSMOND WALKER, CONRAD HALL, VISHWANI SUKHRAM, ANNE GRONATA, BRUCE SMITH, NESTOR AMAYA, GUIDO ANTONIO RODRIGUEZ, WILLIE BALLENTINE, PETER VONTAS, FELIX GONZALEZ, MICHELLE LATIMER, VARISE WALLER, SOOKIA FREEMAN, CAMARCA FLOWERS, ANTONIO SALCEDO, JOEVEN CORTEZ, аnd JUDITH ALLEN on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. GENTING NEW YORK LLC, D/B/A RESORTS WORLD CASINO NEW YORK CITY, Defendant-Appellee.
Docket No. 21-833-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: May 15, 2023
August Term 2021 (Argued: May 11, 2022)
Before: NEWMAN, CHIN, and SULLIVAN, Circuit Judges.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) denying plaintiffs-appellants’ motion for summary judgment, granting defendant-appellee‘s cross-motion for summary judgment, and dismissing plaintiffs-appellants’ amended complaint. Without providing advance notice, defendant-appellee closed a buffet restaurant within its casino, simultaneously laying off 177 employees, including plaintiffs-appellants. The district court held the buffet was not an “operating unit” or a “single site of employment” for the purpose of federal and state laws that require employers to give employees advance warning when a site or unit is to be closed. On appeal, plaintiffs-appellants contend that the district court erred in granting summary judgment because a reasonable finder of fact could have determined the buffet was an operating unit or single site of employment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Judge Sullivan dissents in a separate opinion.
DANA M. SUSMAN (Jonathan M. Sabin, on the brief), Kane Kessler, P.C., New York, New York, for Defendant-Appellee.
Brian M. Boynton, Principal Deputy Assistant Attorney General, Michael S. Raab, Catherine M. Padhi, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Amicus Curiae United States of America.
CHIN, Circuit Judge:
On January 6, 2014, defendant-appellee Genting New York LLC, d/b/a Resorts World Casino New York City (“Genting“), closed the Aqueduct Buffet (the “Buffet“), a restaurant located inside the Resorts World Casino (the “Casino“) where plaintiffs-appellants (“Plaintiffs“) worked. Genting gave Plaintiffs no notice of the closure, which took effect the same day and resulted in 177 employees being laid off. The next week, Plaintiffs filed a putative class action against Genting, alleging that its failure to provide notice violated the Worker Adjustment and Retraining Notification Act (the “WARN Act“),
On appeal, Plaintiffs argue that the district court erred in granting summary judgment for Genting because, they claim, a reasonable jury could only conclude that the Buffet was either an operating unit or a single site of employment under the WARN Acts. After hearing oral argument, we solicited the views of the U.S. Department of Labor (the “DOL“) on the scope and meaning of the terms “operating unit” and “organizationally or operationally distinct” as used in the federal WARN Act and its associated regulations. Submitting an amicus curiae brief, the DOL emphasized that determining whether an operating unit exists “requires a fact-intensive analysis.” Amicus Br. at 2, 6. The DOL took the position that, on a “somewhat mixed” record, the district court erred in concluding as a matter of law that the Buffet was not an operating unit. Id. at 8.
For the reasons set forth below, we AFFIRM in part, VACATE in part, and REMAND.
BACKGROUND
A. The Facts1
1. The Casino and the Buffet
The Buffet was located inside the Casino, which Genting owned in Queens, New York. When the Casino opened in 2011, it offered guests “over 30 food and beverage options.” J. App‘x at 1241. Among them were outlets in a food court, service and retail bars, two gourmet restaurants, a fast food venue, a coffee shop, and the Buffet. The Casino was also responsible for food and beverage service at the New York Racing Association (the “NYRA“), which was “adjacent to and connected to” the Casino and housed another buffet, called1
Genting management regarded the Buffet, like the Casino‘s other food and beverage offerings, as an “amenity” for Casino patrons rather than a destination or product in its оwn right. Id. at 281. Genting advertised the Buffet in brochures encouraging prospective guests to patronize the Casino. Those wishing to eat at the Buffet typically paid an entrance fee, although the Casino sometimes offered discounted or complimentary admission. Unlike the Casino‘s other food outlets, the Buffet operated on an all-you-can-eat basis.
A wide selection of hot and cold foods was available at the Buffet, including beef stew, chicken breasts, pizza, sushi, and salads. Generally, hot items were prepared in the Buffet‘s own kitchen, whereas refrigerated items and refrigerated ingredients for hot foods were brought to the Buffet from the Casino‘s centralized cold kitchen (known in industry parlance as the ”garde manger“). Id. at 228. The Buffet used the same culinary manual as the Casino‘s other food outlets, although the manual designated which recipes were used at
As these facts indicate, the Buffet was dependent on the Casino for certain centralized services. In addition to the garde manger and warehouse, the Casino‘s human resources department hired employees for the Buffet, trained them, and worked with a vendor to process payroll. A centralized accounting and finance department recorded and reported financial information for costs incurred by the F&B department; the Buffet had a designated cost center in the Casino‘s accounting system, as did some other food outlets. Staff from the maintenance and engineering departments repaired defective equipment in the Buffet. Whenever an unsanitary “incident” occurred in the Buffet, the Casino‘s environmental services department would provide specialized cleaning services. Id. at 257. Stewards who performed ordinary cleaning duties rotated through all the food outlets. The stewards reported to managers outside the Buffet, and the Casino allocated their wages to the stewards’ cost center.
Food and beveragе workers were assigned to the Buffet only after they had been hired by the Casino. Once assigned to the Buffet or another F&B outlet, an employee would typically receive a schedule to work there for one or
The Buffet had its own managers, although they did not report directly to Casino officers such as the chief operating officer or president. The managers occupied positions within two reporting lines. The “Buffet Manager,” who oversaw the front-of-house area where employees interacted with patrons, reported to the assistant director of the F&B department, who, in turn, reported to the F&B department‘s vice president. Separately, the “Executive Sous Chef-Buffet” managed the Buffet‘s kitchen and reported to the assistant executive chef, who, in turn, reported to the executive chef. The executive chef, who oversaw all the Casino‘s food outlets and was responsible for determining what food options would be offered at each, reported to the director of F&B, who reported to the
Non-management employees throughout the Casino belonged to a union, the New York Hotel and Motel Trades Council, AFL-CIO (the “Union“), which began organizing the Casino‘s workers before it opened its doors. Plaintiffs bеcame members of the Union in December 2011, after the Union and Casino entered into a card check and neutrality agreement and after the Union was certified as the exclusive bargaining representative for non-management employees of the Casino.
Relations between the Union and the Casino were not without tension. Following a roughly two-year organizing effort, an Interest Arbitration Award in October 2013 settled the terms of a collective bargaining agreement (the “CBA“) between the Union and the Casino. The CBA provided non-management employees substantially higher pay and more generous benefits than they had previously enjoyed. It described the job classifications, compensation structure, policies, and terms of employment for non-management
2. The Buffet‘s Closure
On January 6, 2014, less than three months after the Interest Arbitration Award took effect, Genting closed the Buffet. Genting laid off 177 employees, including cooks, food servers, food runners, bussers, hosts, cashiers, warehousemen, and stewards who “work[ed] in the buffet department or in roles supporting the buffet.” Id. at 793. Genting notified affected employees of their layoffs through letters dated the same day.2 The Casino‘s employee rosters listed2
After the Casino closed the Buffet, the Union filed CBA-based grievances concerning the closure with the same Office of the Impartial Chairperson that had issued the 2013 Interest Arbitration Award. The Union argued that the Casino ignored the clear language of the CBA by conducting “out of seniority layoffs” of certain F&B employees. Id. at 393. Because the Union asserted that each food outlet was not a separate department for the purposes of classification seniority, it argued that employees with less seniority who worked outside the Buffet should have been laid off before employees with greater seniority who worked in the Buffet. Genting, seeking a decision dismissing the3
On November 24, 2015, the Office of the Impartial Chairperson issued a decision in favor of the Union. The Impartial Chairperson found that the term “department,” as used in the CBA, means the “food and beverage department,” and that “where jobs from one outlet to another are, in the overwhelming main, vastly similar or fungible so as to require little or no training, classification seniority must be given effect” across outlets. Id. at 399.
B. Procedural History
On January 14, 2014, Plaintiffs filed this putative class action. Their amended complaint alleges that Genting violated the WARN Acts when it failed to provide them with notice before closing the Buffet because the Buffet was “a site of employment, or one or more facilities or operating units within a single site of employment.” Id. at 32-33. On February 16, 2016, following discovery, Plaintiffs and Genting filed cross-motions for summary judgment.
On March 12, 2021, the district court denied Plaintiffs’ motion and granted Genting‘s motion, dismissing Plaintiffs’ amended complaint. Roberts v. Genting New York LLC, No. 14-CV-257, 2021 WL 950055 (E.D.N.Y. Mar. 12, 2021).
This appeal followed. After oral argument, because “[w]e ha[d] not previously considered the scope of ‘operating unit’ under
DISCUSSION
A. Standard of Review
“We review a district court‘s grant of summary judgment de novo where . . . the parties filed cross-motions for summary judgment and the district4
Summary judgment is proper only if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Atlas Air, Inc., 943 F.3d at 577 (quoting Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008);
B. Applicable Law
1. The WARN Act
The WARN Act “requires employers to give employees 60 calendar days’ notice in advance of plant closings and mass layoffs.” Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013) (citing
Unless an exception applies, a covered employer violates the WARN Act when it “order[s] a plant closing or mass layoff without providing each employee, either individually or through [her or his] representatives, with sixty-days advance notice.” Frymire v. Ampex Corp., 61 F.3d 757, 764 (10th Cir. 1995) (citing
The WARN Act‘s “primary” purpose is “remedial.” Loc. Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1159 (9th Cir. 2001). The statute “was adopted in response to the extensive worker dislocation that occurred in the 1970s and 1980s.” Hotel Emps. & Rest. Emps. Int‘l Union Loc. 54 v. Elsinore Shore Assocs., 173 F.3d 175, 182 (3d Cir. 1999). During that period, companies “were merged, acquired, or closed,” causing “many employees [to] lo[se] their jobs, often without notice. In some circumstances, the projected closing was concealed from the employees.” Id. Accordingly, “[b]y requiring advance notice, the WARN Act aims to ‘provide workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market,’ and allows the state to provide prompt assistance to displaced workers.” Guippone, 737 F.3d at 225 (brackets omitted) (quoting
The WARN Act confers upon the DOL authority to “prescribe such regulations as may be necessary to carry out” the statute.
To give force to the WARN Act‘s regulations, “we look to the plain language of the regulatory text, which we consider in light of its purpose, as6
Here, the parties do not argue that the DOL‘s definition of either a “single site of employment” or an “operating unit” is ambiguous. Instead, as we noted in our order inviting the DOL to share its views on this issue, the parties have “diverging interpretations of the statutory and regulatory language.” ECF Dkt. No. 87 at 2. Accordingly, while we do not defer either to the rеgulatory preamble or to the DOL‘s further comments in its amicus brief, we consider these materials to the extent they offer persuasive guidance that helps resolve the issues on appeal. See Ramos, 687 F.3d at 561.88
The regulations implementing the
As noted above, the regulations define an “operating unit” as “an organizationally or operationally distinct product, operation or specific work function.”
To illustrate its “view of the appropriate limits of the definition,” the DOL has offered “illustrative” examples. Id. at 16050-51; see also Amicus Br. at 6-8. For instance, “[i]f an automobile manufacturing plant has an assembly line
3. The New York WARN Act
Like the federal statute, the New York WARN Act requires that qualified employers give employees advance notice of a plant closing or mass
Plaintiffs allege violations of both WARN Acts. The parties do not dispute whether the state regulations are similar to the DOL‘s regulations.10 For
C. Application
On appeal, Plaintiffs contend the district court erred when it concluded as a matter of law that the Buffet‘s closure did not constitute a “plant closing” on the ground that the Buffet was neither a “single site of employment” nor an “operating unit.” Roberts v. Genting New York LLC, 2021 WL 950055 at *4; see Appellants’ Br. at 15-25; Appellee‘s Br. at 22-23. While there are facts in the record that support the district court‘s conclusions, other facts in the record support Plaintiffs’ argument that the Buffet was sufficiently distinct, both organizationally and operationally, to constitute an operating unit and thus come within the protection of the WARN Acts. Because a rеasonable fact-finder11
1. Operational Independence
In determining whether an operating unit exists, no single consideration is dispositive. See Amicus Br. at 4, 6, 8. We begin with the Buffet‘s dependence on other entities within the Casino because the district court analyzed this factor most extensively.
The district court agreed with Genting “that the Aqueduct Buffet was not operationally separate and distinct from the rest of the casino.” Roberts v. Genting New York LLC, 2021 WL 950055, at *4. In support of this conclusion, the district court cited the Buffet‘s dependence on the Casino‘s centralized services, including “recipes, ingredients, supplies, storage, cleaning, human resources, legal issues, payroll, and insurance and accounts payable.” Id. at *5-*6. The
The district court and the dissent are correct that the Casino provided the Buffet with centralized services, including purchasing, warehousing, human resources management, and cleaning. But the Buffet‘s reliance on these centralized services is not, as a matter of law, fatal to a determination that it was an operating unit. Indeed, the “illustrative” examples of operating units given by the DOL include an assembly line at an automobile manufacturing plant, a data-processing department, a housekeeping department, a clerical pool, and a product department at a department store. The DOL
2. Other Factors
In determining whether the Buffet was operationally and organizationally distinct, and thus an operating unit for WARN Act purposes, a fact-finder might deem other elements of the record helpful. Some favor Plaintiffs; others support Genting. That the record is equivocal is not surprising: The DOL advises us that in WARN Act cases, “[t]he ultimate determination will depend on the circumstances of each case, and all relevant evidence should be considered in the evaluation.” Amicus Br. at 8. Contrary to the view of our dissenting colleague, the “somewhat mixed” summary judgment record in this case is insufficient to establish, as a matter of law, that the Buffet was not an operating unit. Id.
Consider, first, the evidence concerning the Buffet‘s physical location. Robert Netter, vice president of food and beverage at the Casino,
Likewise, the record is mixed as to whether the Buffet, when compared to the Casino‘s other dining options, offered patrons a distinct experience. The strongest evidence in favor of this proposition is that no other food outlet in the Casino operated on an all-you-can eat basis. Some food items were unique to the Buffet. Other items, even though they were available elsewhere in the Casino, were “prepared differently” when served in the Buffet. J. App‘x at 108. The Buffet‘s kitchen prepared the bulk of the hot items it served. Yet the Buffet was not wholly distinct: Cold items served there were generally prepared in the central garde manger, аnd Genting operated another all-you-can eat buffet in the NYRA section of the building.
As to employees, those assigned to the Buffet typically worked there for at least six months, and their wages were allocated to the Buffet‘s cost center. Cf. Pavao, 844 F. Supp. at 895 (concluding that the Consolidated Parts Department was an “operating unit” under the federal WARN Act, in part, because it had its own “cost center” department number). On Genting‘s rosters, at least half of the employees whom the company laid off were assigned to
As a final example, even the factual record concerning Buffet employees’ uniforms is susceptible to competing interpretations. The servers, cashiers, and bus persons who worked at the two buffets Genting operated -- the Buffet and Equestrius -- wore different color shirts or other top garments than their counterparts at the Casino‘s other food outlets. While this detail provides further support for the conclusion that the Buffet was distinct, it is also true that cooks, stewards, and hosts wore the same uniform throughout the Casino, and Buffet employees wore the same pants as employees elsewhere. As with the other factors we have discussed, how to weigh these minor but observable
There are additional examples, but the outcome remains the same: When the evidence is considered in the light most favorable to Plaintiffs, issues of material fact that are genuine and more than “superficial,” see Dissent at 8, exist with regard to whether the Buffеt was organizationally and operationally distinct enough from the rest of the Casino to merit being designated an operating unit for WARN Act purposes. Genting is not entitled to summary judgment because a reasonable finder of fact could conclude that the Buffet was, in fact, an operating unit. Likewise, to the extent Plaintiffs argue on appeal that the district court erred in failing to grant summary judgment in their favor, we are not persuaded, for, as discussed above, there is also evidence in the record to support the conclusion that the Buffet was not an operating unit. It will be for the finder of fact at trial to weigh the evidence comprising the “somewhat mixed” record in this case to answer the question. Amicus Br. at 8. We conclude the district court erred in granting summary judgment for Genting and in dismissing Plaintiffs’ claims under the WARN Acts.
For the foregoing reasons, the judgment of the district court is AFFIRMED to the extent it denied Plaintiffs’ motion for summary judgment and it is VACATED to the extent it granted Genting‘s motion for summary judgment and dismissed the complaint, and the case is REMANDED for further proceedings.
Because Plaintiffs have not shown that the Aqueduct Buffet is subject to the notice requirement of the Federal and New York WARN Acts, I would affirm the district court‘s order denying Plaintiffs’ motion for summary judgment and granting Resorts World‘s cross-motion for summary judgment dismissing Plaintiffs’ complaint.
Under the Federal WARN Act, business enterprises with 100 or more full-time employees must provide a written notice to each affected employee or their representative at least sixty days before a “plant closing.”
The district court granted summary judgment dismissing Plaintiffs’ claims, concluding that Plaintiffs’ asserted operating unit -- the Aqueduct Buffet -- did not satisfy the definitions of “operating unit” under the Federal or New York WARN Act. I agree.
As a threshold matter, I join the majority in concluding that we owe no deference to the DOL‘s interpretation of the statute and regulations offered in its amicus brief. See Maj. Op. at 20. “Where . . . an agency advances a statutory interpretation in an amicus brief that has not been articulated before in a rule or regulation, we do not apply the high level of deference due under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 (1984).” Conn. Off. of Prot. & Advoc. For Persons With Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 239 (2d Cir. 2006). Similarly, when the agency‘s regulation implementing the statute “is not ambiguous,” we afford no deference to the agency‘s interpretation of its own regulation because, in such a case, “[t]o defer to the agency‘s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 529 U.S. 576, 588 (2000); see also Stagg, P.C. v. U.S. Dep‘t of State, 983 F.3d 589, 603 (2d Cir. 2020) (“[C]ourts do not give deference to agency interpretation of its own regulation when [the] regulation is unambiguous.“). Here, “the parties do not argue that the DOL‘s definition of either a ‘single site of employment’ or an ‘operating unit’ is ambiguous.” Maj. Op. at 20. Therefore, like the majority, I see no reason to “defer . . . to the DOL‘s . . . comments in its amicus brief.” Id.
I disagree with the majority only because, to my mind, the “facts in the record” do not “support Plaintiffs’ argument that the [Aqueduct] Buffet . . . constitute[s] an operating unit and thus come[s] within the protection of the WARN Acts.” Maj. Op. at 25. When “the text of a regulation presents no ambiguity, . . . we are simply tasked with the application of an unambiguous regulation to the particular facts of a case.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 559 (2d Cir. 2012) (internal quotation marks omitted). Here, the DOL‘s regulations define “operating unit” as “an organizationally or operationally distinct product, operation, or specific work function.”
Applying the “unambiguous regulation to the particular facts” of this case, I cannot conclude that the Aqueduct Buffet meets this definition of an operating unit under the WARN Acts. Ramos, 687 F.3d at 559 (internal quotation marks omitted). First, the Aqueduct Buffet was not discernably separate from the
Second, the Aqueduct Buffet‘s organizational structure was not discernably separate from that of the rest of the casino. All of Resorts World‘s food outlets, including the Aqueduct Buffet, were collectively managed by an Executive Chef and Assistant Director of Food and Beverage. The Executive Chef and Assistant
The majority points to several differences between the Aqueduct Buffet and other food outlets in the Resorts World casino -- such as the fact that “no other food outlet in the [c]asino operated on an all-you-can eat basis,” that “[t]he managers of
For all these reasons, I respectfully dissent from the majority‘s opinion and would affirm the district court‘s grant of summary judgment dismissing Plaintiff‘s complaint.