Ned L. Labbe, Plaintiff-appellant, v. Bronco Wine Company, Dba Classic Wines of California,defendant-appellee, 28 F.3d 106 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 28 F.3d 106 (9th Cir. 1994) Submitted May 11, 1994. *Decided May 20, 1994

Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Ned L. Labbe appeals pro se the district court summary judgment in favor of Bronco Wine Company ("Bronco Wine") dba Classic Wines of California ("Classic Wines") in Labbe's action alleging a violation of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101-2109 ("WARN"). Labbe contends the district court erred by determining that Bronco Wine was not required by WARN to give him sixty days notice of his impending layoff. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court's grant of summary judgment. Jones v. Union Pacific R.R. Co., 968 F.2d 937, 940 (9th Cir. 1992). " [V]iewing the evidence in a light most favorable to the nonmoving party, [we must determine whether] there are any genuine issues of material fact and whether the district court applied the relevant substantive law." Tzung v. State Farm Fire and Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). "There is no genuine issue of fact if the party opposing the motion 'fails to make an adequate showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' " Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

WARN requires an employer to give a worker sixty days notice before ordering a mass layoff. 29 U.S.C. § 2102(a); see also International Union, UMW v. Jim Walter Resources, 6 F.3d 722, 724 (11th Cir. 1993); Local 217 v. MHM, Inc., 976 F.2d 805, 807 (2d Cir. 1992). A mass layoff is defined as a reduction in the work force which results in an employment loss at a single site of employment during any 30-day period for: 1) 50 or more employees constituting at least 33 percent of the employees; or 2) 500 or more employees, regardless of the percentage. 29 U.S.C. § 2101(a) (3) (B).

In support of its motion for summary judgment, Bronco Wine submitted the declaration of Michael Franzia, the safety and personnel supervisor. The declaration stated the following: Bronco Wine is a wine distribution company which operates facilities in Ceres and Whittier, California. In January 1991, Bronco lost a major client; therefore, it was forced to layoff a significant number of employees. Payroll records and personnel action forms disclosed that Bronco Wine had employed 253 people at its Ceres facility in Northern California before laying off 40 employees--including Labbe--and 53 people at the Whittier facility in Southern California before laying off 33 employees.

Arguing that Classic Wines (the Ceres facility) is a "single site of employment," separate from Bronco Wine (the Whittier facility), Labbe contends that Classic Wines violated WARN because it had approximately 126 employees and laid off 60 people--47 percent of the employees. Assuming without deciding that Classic Wines is a single site of employment, WARN still does not apply because Labbe presented no evidence supporting his figures regarding the number of workers employed and laid off at Classic Wines. See Taylor, 880 F.2d at 1045 ("A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.").

The district court therefore properly entered summary judgment in favor of the defendant.1  See id. at 1046.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In light of our holding, we need not address the defendant's argument regarding the applicable statute of limitations for WARN. Furthermore, we have considered and reject Labbe's remaining contentions, and deny his request for attorneys' fees