The Hon orable Joseph E. Stevens, Jr., United States District Judge for th e 1 Western District of Missouri, sitting by designatio n.
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 Unite d States v. * District Court for t he 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, an d STEVENS, District Judge. 1
STEVENS, District Judge.
Plaintiffs/appellants are former employees o f appellee/defendant EarthgrainsThe 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 WAR N Act’s provisions and that Earthgrains’ actions triggered the notic e requirement.
2 Baking Companies, Inc. (“Earthgrains”). Plaintiff s brou ght this suit against Earthgrains pursuant to th e Worker Adjustment and Retraining Notification (“WARN” ) Act, 29 U.S.C. § 2101 et seq. The district court grante d 2 Eart hgrains’ motion to dismiss on the ground tha t plaintiffs had been compensated fully under t he WARN Act. See Breedl ove v. Earthgrains Baking Companies, Inc. , 936 F. Supp. 802 (E.D. Ark. 1997). We affirm.

I.

Plaintiffs worked at Earthgrains’ baking plant i n Little Roc k, Arkansas. In December of 1995, Earthgrains notif ied its employees, including plaintiffs, that i t would close the Little Rock plant. Plaintiffs the n brou ght suit alleging that Earthgrains had violated th e WA RNAct’s notice provision, 29 U.S.C. § 2102, whic h requires c ertain employers “to provide written notice to each affected employee sixty (60) days in adv ance” of the closing of a covered facility. In their complaint, the 3 plai ntiffs sought recovery of wages that they clai m shoul d have been paid during the notice period. The y admi tted that Earthgrains had “paid [them] for workin g days within the required 60 day notification period. ” App. 95, Compl. ¶ 14. However, the employees allege d that t hey were entitled to wages for each calendar da y within the violation period.

Ear thgrains then moved to dismiss the action

. Earthgrains claimed, on the basis of plaintiffs ’ admi ssion that Earthgrains had paid wages for workin g3

days within the notification period, plaintiffs had no t stat ed a claim for relief. Earthgrains contended tha t thes e wages constituted the entire amount they wer e obligated to pay under the4

WARNAct. Plaintiffs concurrently moved for summar y judg ment claiming that they were entitled to wages fo r each calendar day within the violation periodas a matter of law. The district court granted Earthgrains’ motio n to d ismiss and denied plaintiffs’ motion for summar y judg ment, holding that the employees were entitled onl y to wage s for each working day within the notificatio n period. The district court found that the damage s provision of the WARN Act was capable of more than on e reasonable interpretation and, therefore, examined th e legislative history to discern Congressional intent

. Fina lly, the district court found that the legislativ e historydemonstrated that Congress “unequivocally ” intended t hat 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 rulin g
a motion to dismiss is clear. A district court mus t
acce pt the allegations contained in the complaint a s true, see Hishon v. King & Spalding , 467 U.S. 69, 7 3 (1984), an d all reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Se e Haf leyv. Lohman , 90 F.3d 264, 266 (8th Cir. 1996)

. “[D]ismissal is inappropriate ‘unless it appears beyon d doubt that the plaintiff can prove no set of facts i n 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, 45-4 6 (1957) ). Our standard of review of a district court’ s grant of a motion to dismiss is similarly clear. W e reviewde novo. See Hafley , 90 F.3d at 266; Firs t Commerc ial Trust Co., N.A. v. Colt’s Mfg. Co., Inc. , 7 7 F.3d 1081, 1083 (8th Cir. 1996); Weaver v. Clarke , 4 5 F.3d 1253, 1255 (8th Cir.1995).5 III.

The issue of whether an employer’s liability t o affecte d employees due to a violation of the WARN Act’ s notice requirement should be calculated based on6

worki ng days or calendar days has been addressed b y several courts. The majority of Circuit Cour ts have held working da ys to be the proper basis for the calculation. See Carpen ters District Council v. Dillard Dept. Stores, Inc. , 15 F.3d 1275, 1282-86 (5th Cir. 1994), cert

. deni ed , 513 U.S. 1126 (1995); Saxion v. Titan- C Manufacturing, Inc. , 86 F.3d 553, 558-61 (6thCir. 1996); Frymir e 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 e mployees for a violatio n of the WARN Act’s notice provisions is based
on cal endar days rather than working days. See Unite d Steel W orkers of America v. North Star Steel Co., Inc. , 5 F.3 d 39 (3d Cir. 1993), cert. denied , 510 U.S. 111 4 (1994). A s 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 distric t prev iouslyheld that liability was based on calenda r 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 compen sation when an employer violates the W ARN Act’s notice requirement is governed by 2 9 U.S.C

. § 2104(a)(1). The statute provides that an y empl oyer who violates the notice provision “shall b e liab le to each aggrieved employee who suffers a n employment loss for “back pay for each day of violation.” Id. Our analysis, of course, begins by examining th e langu age of the statute. See United States v. Ron Pai r Ente rprises, Inc. , 489 U.S. 235, 241 (1989) (citin g LandrethTimber Co. v. Landreth , 471 U.S. 681, 68 5 (1985)) ; A

merican Tobacco Co. v. Patterson , 456 U.S. 63, 68 (1982) (citing Reiter v. Sonotone Corp. , 4 42 U.S. 330, 337 (19 79)) ; United States v. Bishop , 894 F.2d 981, 98 57

(8thCir.), cert. denied , 498 U.S. 836 (1990). If th e statute is clear and unambiguous because it is no t possi ble to construe it in more than one reasonabl e manner , we need go no further. See In re Erickso n Part nership , 856 F.2d 1068, 1070 (8th Cir. 1988); Bee f Nebrask a, Inc. v. United States , 807 F.2d 712, 717-1 8 (8th Cir. 1986) (citing Maine v. Thiboutot , 4488

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

Th e 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 o f this title shall be liable to each aggrieve d emplo yee who suffers an employment loss as a result of such closing or layoff for –

(A) ba ck pay for each day of violatio n at a rate of compensation not less than the higher of –

(i) the average regular rat e received by such employee during th e last 3 years of the employee’ s employment; or (ii ) the final regular rat e received by such employee; and (B) benefits under an employee benefi t plan described in section 1002(3) of thi s title, including the cost of medica l expenses incurred during the employment loss wh ichwould have been covered under a n employee benefit plan if the employment loss had not occurred. Suchliability shall be calculated for th e period of violation, up to a m aximum of 60 days, but in no event for more than one-half th e number of days the employee was employed by the employer.
29 U.S.C. § 2104(a)(1).

Of course, the relev ant language in this case is the phras e “back pay for each day of violation.” Id. § 2104(a)(1)(A). On one hand, the term “back p ay” seems to imply wage s that the employee would have received absent a violatio n. The Supreme Court construed the term “back pay ” as used in the National Labor Relations Act a s “payme nt of a sum equal to what [an employee] normall y would h ave earned absent a violation of the statute. ” Phelp s Dodge Corp. v. NLRB , 313 U.S. 177, 197 (1941)

.9

Usin g working days to calculate an employer’s liabilit y coul d be a reasonable interpretation of this language

. On the other hand, the phrase “for each day of10

violation” seems to imply that an employee would receive daily wage s for each day of the violation period. Using calendar d ays to calculate an employer’s liability could be a reasonable interpretation of this language.

Thus, in our view, the statute is susceptible to mor e than one r easonable interpretation. If “for each day of viol ation” mandated the use of calendar days, employee s would be paid for days on which they do not work. Suc h
an interpretation would fly in the face of what i s comm onlythought of as “back pay.” To interpret th e phrase “ba ck pay for each day of violation” to mean that empl oyees should receive wages on days they otherwis e would not have been paid would be to write th e “back pay” out of the statute. But to interpret the sta tute, on its fac e, as requiring the use of working days alone t o ar rive at a figure for “back pay,” would not full y account for the phrase “for each day of violation.”

The Third Circuit in North Star Steel came to th e oppo site conclusion, finding that the statute could no t be reasona bly construed in more than one way. The North Star Steel Court held that the term “back pay ” is “simply a label us ed to describe the amount of damages for which
an employer is liable for each day of the violation. ” NorthStar Steel , 5 F.3d at 42. It reached thi s conclusion using three common rules of statutor y construction. See id. at 42-43. We, however , agree with the conclusions of the Fifth and Sixth Circui ts that none of the rul es of statutory construction used by the Third Circ uit compelled the result that the Third Circui t reach ed. See Dillard , 15 F.3d at 1283 n.14; Saxion , 8 6 F.3d a t 559-60. As demonstrated by their analyses, w e beli eve that interpreting this provision on its fac e usin g rules of statutory construction creates even mor e ambiguity as to its proper meaning.11

Asta tute can also be considered ambiguous when a part icular interpretation from the face of a statut e could leadto an anomalous, unusual or absurd result. A hypo thetical situation, as set forth in Dillard i s illustrative.12

[T]he violation period contains sixty days

. Employee "A" is a full-time em ployee who works a regular eight-hour shift each weekday. However , emplo yee "B" is a part-time employee who work s just one ten-hour shift each S aturday. Under the

. . . calendar-day approach, employee "A" would receive 480 hours pay in lieu of notice (eigh t hours per day times sixty days ), while part-time emplo yee "B" would receive 600 hours pay (te n hours per day times sixty days).

Dillard , 15 F.3d at 1285. Although Congress coul d possibly h ave intended this result, we believe that this hypothetic al outcome is so unusual that we cannot ignore the likelihood that the legislative history w ould clarify Congress’ intent.

B.
Having determined that there is ambiguity in th e statute because it is subject to more than on e reasonable interpreta tion, we next turn to the legislative history. As the Fifth and Sixth Circuits noted, a Senate Repor t rega rding this legislation provides the answer. Se e Dillard , 15 F.3d at 1284-85; Saxion , 86 F.3d at 560.
For violations of the notice p rovisions, damages are to be measured by the wages the employe e would have received had the plant remained open or th e layoff had been deferred until th e conclusion of the notice period, less any wages or f ringe benefits received from the violatin g employer during that period. This is in effect a liquidated damages provisions [sic], designe d to penalize the wrongdoing employer, dete r fu ture violations, and facilitate simplifie d damages proceedings.

S. Rep. No. 62, 100th Cong. 1st Sess. 24 (1987). Sinc e “dama ges are to be measured by the wages the employe e would h ave received,” id. , the number of working day s13

within the violation period must be used to c alculate the
amoun t owed by the employer. See Dillard , 15 F.3d a t 1284. Also, the Senate Report language “mirrors” th e interpr etation of “back pay” in Phelps Dodge Corp. v

. NLRB

. Jeffrey Turner, Comment, Damages Under the Workers Adjustment and Retraining Act (WARN):We also no te that the Senate appears to have reached a consensus that th e 4 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).
14 Why D amages Cannot Be Based on Calendar Days , 12 T.M

. Cooley L. Rev. 197, 213 (1995). Therefore, we believ e that the Senate Report’s statement decides the issue. 4

Plain tiffs argue that there is an inconsistenc y between the first sentence and the second sen tence of the Senate Rep ort statement quoted above. Plaintiffs reason that the first sentence indicates a “make-whole ” calculation of damages while the second sente nce mandates a remedy which is punitive in nature. We are unpersuaded that there is an inconsistency. Employers are, in a sens e, penalized by not using the notice provision s because th ey must pay affected workers wages although no work was done. The WARN Act’s provisions can still b e viewed as punitive or deterrent even though t he employees do not receive an undue windfall. Ultimately, however , we fin d the clear statement of the Senate Repor t controlling.

Pl aintiffs also argue that the purpose of the WAR N Act is to provide workers who are laid off no tice so that they may a djust to changed circumstances, describing the WARNAct as requiring notice so that employees ma y con tinue to be at the plant or factory location an d gath er to receive counseling and training. Plaintiff s refe r to legislative debate which rejected an amendmen t to the WARN Act to allow “severance pay in lieu o f notice.” 134 Cong. Rec. 15,926 (1988) (state ment of Sen. Quayle). See also id. at 15,928 (statement of Sen

. Metzenb aum) (“[T]he bill is about giving notice. It i s not a mandatory severance bill . . . .”). Although th e debate evinces a purpose to require employers to giv e notice rather than allowing them to thwart the purpose s15

of t he statute by giving affected workers “severanc e pay,” we believe it does not overcome the cle ar intention manifested in the Senate Report.

Moreover, this Court has characterized the WARN Ac t as “most closely16

analogous to an action to recover damages for a breach of
an implied contract (or breach of an obligation) t o notify employees for terminating them.” Aaron v. Brow n Group, Inc. , 80 F.3d 1220, 1225 (8th Cir. 1996). Thi s bolsters our conclusion that Congress did not intend t o prov ide employees who did not receive notice mor e comp ensation than they would have received had notic e been given.

IV.

We hold that an employer’s liability under the WAR N Act’s comp ensation provision, 29 U.S.C. § 2104(a)(1), is calculatedbased on working days. Because the employees admitted in their complaint that they were pa id all wages for working days within the violation period, we affir m the decision of the district court to dismiss th e complaint for failure to state a claim upon which relief could be granted.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIR CUIT