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, and 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
Argued: May 11, 2022
August Term 2021
* The Clerk of Court is respectfully directed to amend the official caption to conform to the above.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
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 reasonаble 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.
JESSE C. ROSE, Phillips & Associates PLLC, New York, New York, for Plaintiffs-Appellants.
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.
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. Genting argues that the district сourt did not err and, moreover, that we should reject the bulk of the DOL‘s brief as an improper usurpation of the Court‘s authority.
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
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 рroduct in its own 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 which outlets. The Buffet did not purchase its own food but instead ordered ingredients from the Casino‘s centralized warehouse.
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’ сost center.
Food and beverage 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 more six-month cycles. The Casino charged the wages of employees assigned to the Buffet to the Buffet‘s cost center. Employees assigned to the Buffet were sometimes sporadically asked (and occasionally volunteered) to work in other locations, such as when the Casino hosted special events or when workers were needed to cover for absentees as a result of inclement weather, sickness,
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 vice president of F&B. Within the Buffet, both the Buffet Manager and the Executive Sous Chef set the work schedules of employees and, along with shift managers who reported to them, approved proposed changes. The Casino‘s other food outlets had similar management structures.
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 opеned its doors. Plaintiffs became 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 employees. “[T]he salary structure, job duties, and terms and conditions of employment were identical for each job classification, regardless of which food and beverage outlet an employee was аssigned to at any given time.” Id. at 1254-55. The CBA also required that layoffs “be governed by classification seniority in a department.” Id. at 392.
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
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 the grievances in their entirety, argued that, for purposes of the CBA, the Buffet was its own department.
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, thе 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). The court concluded that Genting had “sufficiently proven” the Buffet was not an “operating unit” under the WARN Acts. Id. at *10.4 The court determined there were no issues of fact preventing it from reaching this conclusion because record evidence “sufficiently prove[d]” the Buffet was neither “operationally separate and distinct,” nor
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 district court granted one motion but denied the other.” Atlas Air, Inc. v. Int‘l Bhd. of Teamsters, 943 F.3d 568, 576-77 (2d Cir. 2019) (internal quotation marks and brackets omitted). “[W]hen both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001); see also 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 2720 (4th ed. 2022) (“[T]he mere fact that both parties seek summary judgment does not constitute a waiver of a full trial or the right to have the case presented to a [finder of fact].“). Rather, the court evaluates each party‘s motion “on its own merits,” and “all reasonable inferences” are drawn “against the party whose motion is under consideration.” Morales, 249 F.3d at 121.
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
Accordingly, an employer who shuts down a “single site of employment” or an “operating unit,” terms whose meaning we discuss below, must give notice to all employees who would reasonably be expected to lose their jobs as a result, whether they work inside or outside the site or operating unit. See id. §§ 2102(a)(1), 2101(a)(5).
Unless an exception applies, a covered employer violates the WARN Act when it “order[s] a plant сlosing 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
2. Implementing Regulations
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, as stated in the regulation‘s preamble . . . as well as the purpose of the regulation‘s authorizing statute.” Fernandez v. Zoni Language Ctrs., Inc., 858 F.3d 45, 50 (2d Cir. 2017) (internal quotation marks omitted). In general, we give effect to the DOL‘s regulations unless “they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).7 When the agency‘s interpretation of a regulation is at issue, “although we will generally defer . . . so long as the interpretation is not plainly erroneous or inconsistent with the law,” such interpretations “are not binding and do not have the force of law.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 559 (2d Cir. 2012) (internal quotation marks omitted). Yet even where the text of a regulation is unambiguous and we do not give deference, any regulatory preаmble is still “persuasive because it rests on a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. at 561 (quoting In re Beacon Assocs. Litig., 745 F. Supp. 2d 386, 424 (S.D.N.Y. 2010); cf. Guippone, 737 F.3d at 226 (characterizing DOL regulations as “the best method for determining WARN Act liability because they were created with WARN Act policies in mind and focus particularly on circumstances relevant to labor relations” (quoting Pearson v. Component Tech. Corp., 247 F.3d 471, 490 (3d Cir. 2001) (internal quotation marks omitted))).
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 regulatory 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 561.8
The regulations implementing the
ii. Operating Unit
As noted above, the regulations define an “operating unit” as “an organizationally or operationally distinct produсt, operation or specific work function.”
To illustrate its “view of the appropriate limits of the definition,” the DOL has offered “illustrative” examples.
3. The New York WARN Act
Like the federal statute, the
Plaintiffs allege violations of both WARN Acts. The parties do not dispute whether the state regulations are similar to the DOL‘s regulations.10 Forthat reason, our analysis focuses on the federal law and its regulations but applies equally to Plaintiffs’ New York WARN Act claims. See Debejian v. Atl. Testing Lab‘ys, Ltd., 64 F. Supp. 2d 85, 87 n.1 (N.D.N.Y. 1999).
C. Application
On aрpeal, 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 reasonable fact-finder11could
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 sеparate 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. Thedistrict court‘s analysis in this respect tracks that of Genting‘s expert Bjorn Malmlund. Compare id. at *5-*6 with J. App‘x at 221-29.13 The district court did not, however, fully recognize the implications of the fact that Malmlund, who had never before offered testimony concerning the scope of the WARN Acts, all but redefined the term “operating unit” in his report and deposition testimony. In place of the definition contained in the implementing regulations, Malmlund consistently employed the shorthand phrase ”independent operating unit” (emphasis added). J. App‘x at 221. Moreover, he supplemented the DOL‘s definition of “operating unit” with three other definitions that, he wrote, “are commonly used and generally accepted from an accounting/оperational perspective.”
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 DOLconcluded that all of these could be operating units, even though none could reasonably be considered an independent, subsidiary company. Amicus Br. at 5-6. Indeed, the Buffet was arguably less dependent on the Casino than the DOL‘s hypothetical units would be dependent on the larger entities of which they would have been part.
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 аll 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.
Consider, first, the evidence concerning the Buffet‘s physical location. Robert Netter, vice president of food and beverage at the Casino,testified that it occupied an area separate from other retail outlets and amenities. It did not share space with any other restaurant. The Buffet had a single entrance for guests, who had to pass by a cashier station before being seated by a host. Although a reasonable fact-finder could consider these facts as evidence the Buffet was operationally distinct, the district court focused instead on the fact that, as an “open air” outlet, it was not separated from other parts of the Casino by walls or doors. Roberts v. Genting New York LLC, 2021 WL 950055, at *5.
Likewise, the record is mixed as to whether the Buffet, when compаred 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, and Genting operated another all-you-can eat buffet in the NYRA section of the building.
A more complex set of facts concerns the Buffet‘s staffing arrangements. The managers of the Buffet‘s kitchen and
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“Buffet” or “Buffet-Culinary” as their “Home Department.” Genting did not treat Buffet personnel as interchangeable with their cоunterparts at other food outlets; for instance, the Casino rarely assigned Buffet servers to work in either of its fine dining restaurants. These facts weigh in favor of the argument that the Buffet was sufficiently organizationally and operationally distinct to be considered an operating unit. The district court, however, gave greater weight to contrary evidence, including the fact that the CBA did not identify the Buffet as a separate department, division, or unit.15 The court stressed that the CBA set “forth the same job descriptions, salary and benefit structure, policies, and terms of employment for cooks, food servers, food runners, bussers, hosts, cashiers, stewards, and warehouse attendants, regardless of the food outlet.” Roberts v. Genting New York LLC, 2021 WL 950055, at *4. Moreover, deposition testimony from former Genting employees suggests that these provisions were implemented in practice. Prospective employees applied to a centralized humanresources office, not to a particular restaurant or other amenity. After being hired, food аnd beverage employees such as cooks, servers, and cashiers were provided a common orientation; they were given a single employee handbook and, for those who prepared food, a single culinary manual. In addition, some employees, such as the executive sous chefs and the stewards, who worked in the Buffet also staffed other food outlets.
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
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 Buffet 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.
CONCLUSION
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.
RICHARD J. SULLIVAN, Circuit Judge, Dissenting:
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
The crux of this appeal is whether the Aqueduct Buffet constitutes an “operating unit” under the Federal and New York WARN Acts.1 Federal regulations define
DOL factors are the best method for determining WARN Act liability.‘” (quoting Pearson v. Component Tech. Corp., 247 F.3d 471, 490 (3d Cir. 2001))).
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).
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 Aсts. Ramos, 687 F.3d at 559 (internal quotation marks omitted). First, the Aqueduct Buffet was not discernably separate from theoperation of the rest of Resorts World. The record reflects that the Aqueduct Buffet purchased food through Resorts World‘s centralized purchasing department, stored the purchased food items in a centralized warehouse, prepared cold dishes at a centralized cold kitchen, relied on the support of a centralized stewarding department, and conducted cleaning of its large equipment through a centralized environmental service department. Plaintiffs also testified that they were recruited to join the general Food & Beverage Department, not the Aqueduct Buffet specifically, and that they were rotated among the various food outlets within the Food & Beverage Department. Resorts World‘s Collective Bargaining Agreement with the union, moreover, provided uniform salary structures, benefits, employment terms, job classifications, and job descriptions for all non-managerial employees, irrespective of the food outlet. To me, the district court did not err in concluding that the Aqueduct Buffet was not operationally distinct from the rest of Resorts World.
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 AssistantDirector reported to the Director of Food and Beverage, who then reported to Resorts World‘s Chief Operating Officer and Vice President of Food and Beverage. The Executive Chef, the Director, and the Assistant Director oversaw all thirty food outlets at Resorts World, assisted by Executive Sous Chefs who “rotat[ed] all day long, walking through different kitchens” to ensure quality control of the food products and compliance with Resorts World‘s policies and procedures. J. App‘x at 267. In short, the Aqueduct Buffet was not organizatiоnally distinct, as it did not have its own managerial
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 ofthe [Aqueduct] Buffet‘s kitchen and front-of-house area . . . had the word ‘Buffet’ in their job titles,” and that employees working at the Aqueduct Buffet “wore different color shirts or other top garments than their counterparts at the [c]asino‘s other food outlets.” Maj. Op. 29-34. But these plainly superficial differences do not disturb the district court‘s finding that the Aqueduct Buffet was “dependent on,” and not operationally or organizationally separate from, the rest of the Resorts World. Sp. App‘x at 10.
For all these reasons, I respectfully dissent from the majority‘s opinion аnd would affirm the district court‘s grant of summary judgment dismissing Plaintiff‘s complaint.