The Honorable Joseph E. Stevens, Jr., United States District Judge for the

1

Western District of Missouri, sitting by designation.

1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2057

___________

Richard Breedlove, individually, *

and on behalf of all others similarly *

situated; Nadine Tanner, individually, *

and on behalf of all others similarly *

situated, *

*

Plaintiffs/Appellants, *

* Appeal from the United

States

v. * District Court for the

Eastern

* District of Arkansas.

Earthgrains Baking Companies, Inc., *

doing business as Campbell *

Taggart Baking Company, Inc., *

*

Defendant/Appellee. *

___________

Submitted: November 19, 1997

Filed: April 9, 1998

___________

Before McMILLIAN and WOLLMAN, Circuit Judges, and

STEVENS, District Judge.1

STEVENS, District Judge.

Plaintiffs/appellants are former employees of

appellee/defendant Earthgrains
The Honorable James M. Moody, United States District Judge for the Eastern 2

District of Arkansas.

On this appeal, there is no dispute that Earthgrains was an “employer” subject 3

to the WARN Act’s provisions and that Earthgrains’ actions triggered the notice

requirement.

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Baking Companies, Inc. (“Earthgrains”). Plaintiffs

brought this suit against Earthgrains pursuant to the

Worker Adjustment and Retraining Notification (“WARN”)

Act, 29 U.S.C. § 2101 et seq. The district court granted

2

Earthgrains’ motion to dismiss on the ground that

plaintiffs had been compensated fully under the WARN Act.

See Breedlove v. Earthgrains Baking Companies, Inc., 936

F. Supp. 802 (E.D. Ark. 1997). We affirm.

I.

Plaintiffs worked at Earthgrains’ baking plant in

Little Rock, Arkansas. In December of 1995, Earthgrains

notified its employees, including plaintiffs, that it

would close the Little Rock plant. Plaintiffs then

brought suit alleging that Earthgrains had violated the

WARN Act’s notice provision, 29 U.S.C. § 2102, which

requires certain employers “to provide written notice to

each affected employee sixty (60) days in advance” of the

closing of a covered facility. In their complaint, the 3

plaintiffs sought recovery of wages that they claim

should have been paid during the notice period. They

admitted that Earthgrains had “paid [them] for working

days within the required 60 day notification period.”

App. 95, Compl. ¶ 14. However, the employees alleged

that they were entitled to wages for each calendar day

within the violation period.

Earthgrains then moved to dismiss the action.

Earthgrains claimed, on the basis of plaintiffs’

admission that Earthgrains had paid wages for working
3

days within the notification period, plaintiffs had not

stated a claim for relief. Earthgrains contended that

these wages constituted the entire amount they were

obligated to pay under the
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WARN Act. Plaintiffs concurrently moved for summary

judgment claiming that they were entitled to wages for

each calendar day within the violation period as a matter

of law. The district court granted Earthgrains’ motion

to dismiss and denied plaintiffs’ motion for summary

judgment, holding that the employees were entitled only

to wages for each working day within the notification

period. The district court found that the damages

provision of the WARN Act was capable of more than one

reasonable interpretation and, therefore, examined the

legislative history to discern Congressional intent.

Finally, the district court found that the legislative

history demonstrated that Congress “unequivocally”

intended that damages be measured by working days rather

than calendar days. See 963 F. Supp. at 805.

II.

The standard for a district court to employ in ruling

a motion to dismiss is clear. A district court must

accept the allegations contained in the complaint as

true, see Hishon v. King & Spalding, 467 U.S. 69, 73

(1984), and all reasonable inferences from the complaint

must be drawn in favor of the nonmoving party. See

Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).

“[D]ismissal is inappropriate ‘unless it appears beyond

doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’”

McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir.

1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46

(1957)). Our standard of review of a district court’s

grant of a motion to dismiss is similarly clear. We

review de novo. See Hafley, 90 F.3d at 266; First

Commercial Trust Co., N.A. v. Colt’s Mfg. Co., Inc., 77

F.3d 1081, 1083 (8th Cir. 1996); Weaver v. Clarke, 45

F.3d 1253, 1255 (8th Cir.1995).
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III.

The issue of whether an employer’s liability to

affected employees due to a violation of the WARN Act’s

notice requirement should be calculated based on
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working days or calendar days has been addressed by

several courts. The majority of Circuit Courts have held

working days to be the proper basis for the calculation.

See Carpenters District Council v. Dillard Dept. Stores,

Inc., 15 F.3d 1275, 1282-86 (5th Cir. 1994), cert.

denied, 513 U.S. 1126 (1995); Saxion v. Titan-C

Manufacturing, Inc., 86 F.3d 553, 558-61 (6th Cir. 1996);

Frymire v. Ampex Corp., 61 F.3d 757, 771-72 (10th Cir.

1995), cert. dismissed, 116 S. Ct. 1588 (1996). Only one

Circuit Court has held that compensation to employees for

a violation of the WARN Act’s notice provisions is based

on calendar days rather than working days. See United

Steel Workers of America v. North Star Steel Co., Inc.,

5 F.3d 39 (3d Cir. 1993), cert. denied, 510 U.S. 1114

(1994). As noted above, the district court in this case

found working days to be the proper basis, see 963 F.

Supp. at 805, while another judge of the same district

previously held that liability was based on calendar

days. See Joshlin v. Gannett River States Publ’g Corp.,

840 F. Supp. 660 (E.D. Ark. 1993). The issue, however,

is one of first impression for this Court.

A.

An employee’s compensation when an employer violates

the WARN Act’s notice requirement is governed by 29

U.S.C. § 2104(a)(1). The statute provides that any

employer who violates the notice provision “shall be

liable to each aggrieved employee who suffers an

employment loss for “back pay for each day of violation.”

Id. Our analysis, of course, begins by examining the

language of the statute. See United States v. Ron Pair

Enterprises, Inc., 489 U.S. 235, 241 (1989) (citing

Landreth Timber Co. v. Landreth, 471 U.S. 681, 685

(1985)); American Tobacco Co. v. Patterson, 456 U.S. 63,

68 (1982) (citing Reiter v. Sonotone Corp., 442 U.S. 330,

337 (1979)); United States v. Bishop, 894 F.2d 981, 985
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(8th Cir.), cert. denied, 498 U.S. 836 (1990). If the

statute is clear and unambiguous because it is not

possible to construe it in more than one reasonable

manner, we need go no further. See In re Erickson

Partnership, 856 F.2d 1068, 1070 (8th Cir. 1988); Beef

Nebraska, Inc. v. United States, 807 F.2d 712, 717-18

(8th Cir. 1986) (citing Maine v. Thiboutot, 448
8

U.S. 1, 6 n.4 (1980)).

The statute defining compensation to be paid for a

notice violation reads as follows:

(1) 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 for – 

(A) back pay for each day of violation

at a rate of compensation not less than the

higher of – 

(i) the average regular rate

received by such employee during the

last 3 years of the employee’s

employment; or

(ii) the final regular rate

received by such employee; and

(B) benefits under an employee benefit

plan described in section 1002(3) of this

title, including the cost of medical

expenses incurred during the employment loss

which would have been covered under an

employee benefit plan if the employment loss

had not occurred.

Such liability shall be calculated for the

period of violation, up to a maximum of 60 days,

but in no event for more than one-half the

number of days the employee was employed by the

employer.

29 U.S.C. § 2104(a)(1).

Of course, the relevant language in this case is the

phrase “back pay for each day of violation.” Id. §

2104(a)(1)(A). On one hand, the term “back pay” seems to

imply wages that the employee would have received absent

a violation. The Supreme Court construed the term “back

pay” as used in the National Labor Relations Act as

“payment of a sum equal to what [an employee] normally

would have earned absent a violation of the statute.”

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941).
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Using working days to calculate an employer’s liability

could be a reasonable interpretation of this language.

On the other hand, the phrase “for each day of
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violation” seems to imply that an employee would receive

daily wages for each day of the violation period. Using

calendar days to calculate an employer’s liability could

be a reasonable interpretation of this language. 

Thus, in our view, the statute is susceptible to more

than one reasonable interpretation. If “for each day of

violation” mandated the use of calendar days, employees

would be paid for days on which they do not work. Such

an interpretation would fly in the face of what is

commonly thought of as “back pay.” To interpret the

phrase “back pay for each day of violation” to mean that

employees should receive wages on days they otherwise

would not have been paid would be to write the “back pay”

out of the statute. But to interpret the statute, on its

face, as requiring the use of working days alone to

arrive at a figure for “back pay,” would not fully

account for the phrase “for each day of violation.”

The Third Circuit in North Star Steel came to the

opposite conclusion, finding that the statute could not

be reasonably construed in more than one way. The North

Star Steel Court held that the term “back pay” is “simply

a label used to describe the amount of damages for which

an employer is liable for each day of the violation.”

North Star Steel, 5 F.3d at 42. It reached this

conclusion using three common rules of statutory

construction. See id. at 42-43. We, however, agree with

the conclusions of the Fifth and Sixth Circuits that none

of the rules of statutory construction used by the Third

Circuit compelled the result that the Third Circuit

reached. See Dillard, 15 F.3d at 1283 n.14; Saxion, 86

F.3d at 559-60. As demonstrated by their analyses, we

believe that interpreting this provision on its face

using rules of statutory construction creates even more

ambiguity as to its proper meaning.
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A statute can also be considered ambiguous when a

particular interpretation from the face of a statute

could lead to an anomalous, unusual or absurd result. A

hypothetical situation, as set forth in Dillard is

illustrative.
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[T]he violation period contains sixty days.

Employee "A" is a full-time employee who works a

regular eight-hour shift each weekday. However,

employee "B" is a part-time employee who works

just one ten-hour shift each Saturday. Under the

. . . calendar-day approach, employee "A" would

receive 480 hours pay in lieu of notice (eight

hours per day times sixty days), while part-time

employee "B" would receive 600 hours pay (ten

hours per day times sixty days). 

Dillard, 15 F.3d at 1285. Although Congress could

possibly have intended this result, we believe that this

hypothetical outcome is so unusual that we cannot ignore

the likelihood that the legislative history would clarify

Congress’ intent. 

B.

Having determined that there is ambiguity in the

statute because it is subject to more than one reasonable

interpretation, we next turn to the legislative history.

As the Fifth and Sixth Circuits noted, a Senate Report

regarding this legislation provides the answer. See

Dillard, 15 F.3d at 1284-85; Saxion, 86 F.3d at 560.

For violations of the notice provisions, damages

are to be measured by the wages the employee

would have received had the plant remained open

or the layoff had been deferred until the

conclusion of the notice period, less any wages

or fringe benefits received from the violating

employer during that period. This is in effect

a liquidated damages provisions [sic], designed

to penalize the wrongdoing employer, deter

future violations, and facilitate simplified

damages proceedings.

S. Rep. No. 62, 100th Cong. 1st Sess. 24 (1987). Since

“damages are to be measured by the wages the employee

would have received,” id., the number of working days
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within the violation period must be used to calculate the

amount owed by the employer. See Dillard, 15 F.3d at

1284. Also, the Senate Report language “mirrors” the

interpretation of “back pay” in Phelps Dodge Corp. v.

NLRB. Jeffrey Turner, Comment, Damages Under the Workers

Adjustment and Retraining Act (WARN):
We also note that the Senate appears to have reached a consensus that the

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WARN Act is not a way “to place an additional financial burden on the employers of

this country.” 134 Cong. Rec. 15,928 (1988) (statement of Sen. Metzenbaum). 

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Why Damages Cannot Be Based on Calendar Days, 12 T.M.

Cooley L. Rev. 197, 213 (1995). Therefore, we believe

that the Senate Report’s statement decides the issue.4

Plaintiffs argue that there is an inconsistency

between the first sentence and the second sentence of the

Senate Report statement quoted above. Plaintiffs reason

that the first sentence indicates a “make-whole”

calculation of damages while the second sentence mandates

a remedy which is punitive in nature. We are unpersuaded

that there is an inconsistency. Employers are, in a

sense, penalized by not using the notice provisions

because they must pay affected workers wages although no

work was done. The WARN Act’s provisions can still be

viewed as punitive or deterrent even though the employees

do not receive an undue windfall. Ultimately, however,

we find the clear statement of the Senate Report

controlling.

Plaintiffs also argue that the purpose of the WARN

Act is to provide workers who are laid off notice so that

they may adjust to changed circumstances, describing the

WARN Act as requiring notice so that employees may

continue to be at the plant or factory location and

gather to receive counseling and training. Plaintiffs

refer to legislative debate which rejected an amendment

to the WARN Act to allow “severance pay in lieu of

notice.” 134 Cong. Rec. 15,926 (1988) (statement of Sen.

Quayle). See also id. at 15,928 (statement of Sen.

Metzenbaum) (“[T]he bill is about giving notice. It is

not a mandatory severance bill . . . .”). Although the

debate evinces a purpose to require employers to give

notice rather than allowing them to thwart the purposes
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of the statute by giving affected workers “severance

pay,” we believe it does not overcome the clear intention

manifested in the Senate Report. 

Moreover, this Court has characterized the WARN Act

as “most closely
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analogous to an action to recover damages for a breach of

an implied contract (or breach of an obligation) to

notify employees for terminating them.” Aaron v. Brown

Group, Inc., 80 F.3d 1220, 1225 (8th Cir. 1996). This

bolsters our conclusion that Congress did not intend to

provide employees who did not receive notice more

compensation than they would have received had notice

been given.

IV.

We hold that an employer’s liability under the WARN

Act’s compensation provision, 29 U.S.C. § 2104(a)(1), is

calculated based on working days. Because the employees

admitted in their complaint that they were paid all wages

for working days within the violation period, we affirm

the decision of the district court to dismiss the

complaint for failure to state a claim upon which relief

could be granted.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT