Labombard v. Textron Auto. CV-98-599-JD 06/23/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lynn M. Labombard

v. Civil No. 98-599-JD

Textron Automotive Interiors Co.

O R D E R

Plaintiff Lynn Labombard, appearing pro se, brings an action

against her former employer, Textron Automotive Interiors,

alleging that Textron laid off employees in violation of the

Worker Adjustment and Retraining Notification Act ("WARN Act"),

(West Supp. 1998). Both Labombard and

Textron have filed motions for summary judgment (documents no. 9

and 16) .1 For the reasons that follow, the court grants summary

judgment in favor of Textron.

Background

Textron Automotive Interiors, a supplier of automotive

parts, operated plants in Dover and Farmington, New Hampshire, in

1995. Lynn Labombard was an employee of Textron Automotive

1The plaintiff's motion for leave to file evidentiary materials (document no. 27) is granted and the materials were considered as part of the record for the summary judgment motions. Interiors in 1995 working in the Dover plant in the K06

production line. During 1995, several product contracts,

including the Ford Taurus/Sable armrest ("DN-5") program, were

not renewed so that work on those products ended or "balanced

out." Also during 1995, Textron considered consolidating some of

the operations at the Dover and Farmington plants.

The production program for the DN-5 product involved

employees in the injection molding department of business unit 1,

the K06 paint line of business unit 6, and foam line 2 of

business unit 2. The employees who worked on the DN-5 program

also worked on production programs for other products. In March

of 1995, Textron became aware that the DN-5 program would balance

out in mid-May to June which was projected to result in layoffs

of eighty-five employees. Between March 1, 1995, and September

30, 1995, a total of 138 employees were laid off from the Dover

plant because of the balancing out of the DN-5 program: 27 from

the injection molding department, 20 from the K06 paint line, and

91 from foam line 2.2

2Although Labombard alleges that Textron admitted in a different case that eighty-three employees were laid off within a thirty-day period due to the balancing out of the DN-5 program, she has not provided evidence to support her allegation. See Fed. R. Civ. P. 56(e). In addition, the court's reading of the referenced document, which was a "response" not an affidavit, differs significantly from Labombard's representation. Therefore, Labombard has not submitted evidence of her version of

2 Labombard, however, was not working when she alleges that

the other DN-5 program employees were laid off in June of 1995,

because she was injured and left work in May. She applied for

and received workers' compensation benefits. She was laid off on

September 1, 1995, so that she could gualify for insurance

continuation coverage under COBRA. She continued to receive

workers' compensation benefits until she was paid a lump sum in

December of 1996 after she was determined to be permanently

partially disabled.

Discussion

Labombard asserts that she brings her suit under the WARN

Act for herself and "all similarly situated [Textron] employees,"

and moves for summary judgment. She contends that the balancing

out of the DN-5 program was a plant closing that reguired notice

under the WARN Act. Textron moves for summary judgment on

several grounds including that the balancing out of the DN-5

program was not subject to the WARN Act and Labombard was not

affected by the closure.3

the number and timing of layoffs for purposes of summary judgment.

3Textron continues to argue that the disposition of Allan Lewis's case has preclusive effect in this case. That issue was resolved against Textron in the court's order, in this case.

3 Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The record evidence is taken in the light most favorable

to the nonmoving party. Perkins v. Brigham & Women's Hosp.,

(1st Cir. 1996). "An issue is only 'genuine' if

there is sufficient evidence to permit a reasonable jury to

resolve the point in the nonmoving party's favor, while a fact is

only 'material' if it has the potential to affect the outcome of

the suit under the applicable law." Bourque v. F.D.I.C.,

(1st Cir. 1994) (guotations omitted). Summary

judgment will not be granted as long as a reasonable jury could

return a verdict in favor of the nonmoving party. See Anderson

v. Liberty Lobby, Inc.,

(1986).

The Warn Act reguires an employer of more than 100 employees

to provide written notice to "affected employees" sixty days

before a plant closing or mass layoff.

(a)

(West 1999). " [A]ffected employees" are those "who may

reasonably be expected to experience an employment loss as a

dated March 2, 1999. Textron's persistence in this regard is neither helpful nor a wise use of resources.

4 consequence of a proposed plant closing or mass layoff by their

employer."

(a)(5). A plant closing is "the

permanent or temporary shutdown of a single site of employment,

or one or more facilities or operating units within a single site

of employment, if the shutdown results in an employment loss at

the single site of employment during any 30-day period for 50 or

more employees excluding any part-time employees."

(a) (2) .

The Act provides an exclusive remedy for violation of the

Act through a civil action to recover statutory damages and

attorneys' fees.

(a)(1) and (6), and (b)(West

1999). "Any employer who orders a plant closing or mass layoff

in violation of section 2102 of this title shall be liable to

each aggrieved employee who suffers an employment loss as a

result of such closing or layoff. ..." § 2104(a)(1). An

"aggrieved employee" is "an employee who has worked for the

employer ordering the plant closing or mass layoff and who, as a

result of the failure by the employer to comply with section 2102

of this title, did not receive timely notice . . . as required by

section 2102 of this title." § 2104 (a) (7) .

Based on the record presented for summary judgment, it is

undisputed that Textron did not provide written notice under the

WARN Act to employees, including Labombard, that might reasonably

5 have been expected to be affected by the balancing out of the DN-

5 program. The parties dispute whether the balancing out of the

DN-5 program was a "plant closing" under section 2102 (a) .

Although Textron laid off more than fifty employees as a result

of the loss of the DN-5 contract, the record does not clearly

show whether the layoffs occurred within a thirty-day period.

See § 2101(a)(2). The parties also dispute whether the DN-5

program was an "operating unit" within the meaning of section

2101(a)(2). Based on the record presented for summary judgment,

it is unlikely that the DN-5 program was an "operating unit,"

making it unlikely that a "plant closing" occurred. Therefore,

it is at least disputed whether the anticipated balancing out of

the DN-5 program triggered WARN Act reguirements at all.

However, this issue cannot be resolved on the merits before

addressing the standing issue raised in this case.

It is also undisputed that Labombard was not laid off as a

result of the balancing out of the DN-5 program since she was out

of work, collecting workers' compensation benefits, until she was

laid off in September to allow her to gualify for COBRA benefits.

Although Labombard might be an "aggrieved employee," if she could

show that Textron was reguired by the Act to provide notice,

nevertheless, she did not suffer an employment loss as a result

of the closing of the DN-5 program. Having not suffered an

6 injury as a result of an alleged violation of the WARN Act,

Labombard lacks standing to bring suit under the ACT on her own

behalf. See § 2104(a)(1); see also Food and Commercial Workers

v. Brown Group, Inc.,

(1996).

Labombard contends that her suit is brought on behalf of

other "similarly situated" Textron employees. Section 2104(a) (5)

grants individual plaintiffs standing to sue as representatives

of "other persons similarly situated." Labombard's attempt to

find standing in a representational capacity fails on several

grounds. First, Labombard cannot herself be a plaintiff under

the WARN Act. Second, even if her personal lack of standing

would not disgualify her as the representative of a group of

aggrieved employees, the circumstances of her layoff distinguish

her from the others who were laid off due to the closing of the

DN-5 program, and thus prevent her from being "similarly

situated" with the others. Third, and most importantly,

Labombard's pro se status prevents her from serving as the

representative of a class of other similarly situated employees.

See, e.g., Allnew v. Duluth,

(D. Minn.

1997) (citing cases).

Since Labombard lacks standing to maintain her action under

the WARN Act, the court lacks jurisdiction to consider the

7 remaining issues raised by Textron. See Steel Co. v. Citizens

for a Better Environment,

(1998).

Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment (document no. 16) is granted, and the

plaintiff's motion for summary judgment (document no. 9) is

denied. Plaintiff's motion leave to refile documents (document

no. 27) is granted. Plaintiff's motion for default (document no.

26) is denied as moot. The clerk of court is directed to enter

judgment accordingly and to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge

June 23, 1!

cc: Lynn M. Labombard, pro se Debra Dyleski-Najjar, Esguire