### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-30912

Summary Calendar.

Robbie A. VIATOR, individually and on behalf of all persons

similarly situated; Donie R. Harmon, individually and on behalf of

all persons similarly situated; Pamela S. Barbry, individually and

on behalf of all persons similarly situated; Richard D. Keith;

Patricia Douglas; Angela Romero; Donald Fontenot; Gerald Lee;

Odelia Louise Tate; Dina Lopez; Michael Joseph Trahan; Angela R.

Lopez; Steven Paul Johnson; Everett Paul Marshall; Gary Chester;

Kevin B. Matte; Cynthia L. Rougeau; David Lee Patton; Bradley

Fontenot; Tracy Barnes; Frank Berlin; Kathleen Crich; Nancy H.

Bimle, Plaintiffs-Appellants,

v.

DELCHAMPS INCORPORATED, Defendant-Appellee.

April 15, 1997.

Appeal fromthe United States District Court for the Western

District of Louisiana.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellants, all previously employed by the grocery store chain

Delchamps , Inc. in and around Lake Charles, Louisiana, filed the

current class action lawsuit, alleging D e lchamps violated the

Worker's Adjustme nt Retraining and Notification Act ("WARN"), 29

U.S.C. §§ 2101-2109 (1994), by failing to provide them with sixty

days notice prior to Delchamps' closing of its three area stores.

The district court granted summary judgment in favor of Delchamps,

concluding that Delchamps' three Lake Charles-area stores did not

constitute a "single site of employment" under WARN and, therefore,

that the stores did not employ enough wor kers to come within thescope of the Act. We affirm.

I.

In the six months preceding February 17, 1985, Delchamps

opened three grocery stores in the greater Lake Charles area. All

of the stores were located in Calcasieu Parish, Louisiana, two in

the city of Lake Charles and the other in nearby Sulphur,

Louisiana. The three stores were located within approximately

twelve miles of each other and all had the same 33,387 square foot

floor plan. Shortly after the three Lake Charles-area stores were

opened, Delchamps initiated a coordinated six-month advertising

campaign for the stores in the local paper.

Summary judgment evidence established that approximately

twenty-seven employees, out of a to tal of eighty-eight persons

employed by the three stores over a ten-year period, had been

permanently transferred between stores on at leas t one occasion.

Some eighteen employe es had been temporarily transferred between

stores during the thirty-one weeks preceding the closures as a

result of loss of an employee, employee sickness or vacation, or

similar employment needs. Similarly, limited transfers of

inventory between the three stores were not uncommon. The evidence

established that Delchamps would occasionally transfer some

inventory between the stores whenever necessa ry to assist with a

temporary shortage in one of the stores.

However, further summary judgment evidence established that

each store prepared its own weekly sales rep ort; had its own

profit/loss statements; determined its own product needs and

placed its own resupply orders; had its own management staff(except for the two months preceding the closures when the stores

shared a common store manager); had its own payroll and maintained

its own employees; and hired, fired, and disciplined its own

workers. Delchamps also made sure that whenever an employee

transfer occurred, the transferring employee's pay came from the

temporary place of employment, rather than from the employee's base

store. Similarly, Delchamps carefully kept track of all inventory

transfers and made sure that such inventory was either carried on

the books of the receivin g store or traded in exchange for other

merchandise.

On February 14, 1995, as part of a larger reduction brought on

by declining sales and profits, Delchamps announced its intent to

close its three Lake Charles-area stores by the end of the month.

The stores were closed on February 28, 1995. Employees of the Lake

Charles-area stores who did not accept Delchamps offer to transfer

to other stores were discharged.

On May 4, 1995, appellants filed the present lawsuit. The

district court granted summary judgment in favor of Delchamps. The

primary issue the court considered was whether the thr ee Lake

Charles-area stores constituted a "si ngle site of employment" as

defined by WARN and app licable Department of Labor ("DOL")

regulations. The court concluded that under the DOL's regulations,

the stores could not be considered a single site of employment.

Because none of the individual stores employed the st atutory

minimum of fifty full-time employees, the district court held that

WARN does not apply to the closings. Appellants timely appealed.

II.A.

We review the district court's grant of summary judgment de

novo. C arpenters District Council of New Orleans & Vicinity v.

Dillard Dept. Stores, Inc., 15 F.3d 1275, 1281 (5th Cir.), cert.

denied,

--- U.S. ----, 115 S.Ct. 933, 130 L.Ed.2d 879 (1994); F DIC

v. Myers, 955 F.2d 348, 349 (5th Cir.1992). The issue of whether

multiple work loc ations constitute a "single site of employment"

under WARN is a mixed question of law and fact. W illiams v.

Phillips Petroleum Co., 23 F.3d 930, 934 (5th Cir.), cert. denied,

--- U.S. ----, 115 S.Ct. 582, 130 L.Ed.2d 497 (1994). Accordingly,

we review the district court's application of law de novo,

Carpenters District Council, 15 F.3d at 1281; U nited States v.

Long, 996 F.2d 731, 732 (5th Cir.1993), while reviewing the court's

findings of facts for clear error. C arpenters District Council, 15

F.3d at 1281; Fed.R.Civ.P. 52(a).

B.

WARN requires covered employers to notify "affected employees"

of a "mass layoff." "Affected employees" are defined as "employees

who may reasonably be expected to experience an employment loss as

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

employer." 29 U.S.C. § 2101(a)(5). A "mass layoff" includes any

employment loss at a single site of employment wh ich involves

one-third of the employees at that site and at least fifty

employees, or alternatively, at least five hundred employees. 29

U.S.C. § 2101(a)(3). When such a layoff occurs, the employer must

provide at least sixty days written notice to each affected

employee and notify various state and local officials of theimpending lay off. 29 U.S.C. § 2102. An employer who fails to

provide such notice is liable for back pay, lost benefits, civil

penalties, and attorneys fees. 29 U.S.C. § 2104.

While WARN does not specifically define what constitutes a

single site of employment, the DOL regulations do. These

regulations provide in relevant part:

(3) Separate buildings or areas which are not directly connected or

in immediate proximity may be considered a single site of

employment if they are in reasona ble geographic proximity,

used for the same purpose, and share the same staff and

equipment. An example is an employer who manages a number of

warehouses in an area but who regularly shifts or rotates the

same employees from one building to another.

(4) Non-contiguous sites in the same geographic area which do not

share the same staff or operational purpose should not be

considered a single site. For example, assembly plants which

are located on opposite sides of town and which are managed by

a single em ployer may be considered separate sites if they

employ different workers.

20 C.F.R. § 639.3(i) (1996) (emphasis added). Moreover, the DOL

made clear in its analysis of its implementing regulations that

"[t]he general rule is that separate facilities are separate

sites." 54 Fed.Reg. ¶ 16,050 (April 21, 1989). The DOL further

added that exceptions to the general rule are "narrow" and limited

to cases where geographically distinct sites have an "inextricable

operational purpose." I d. at ¶ 16, 049. As we observed in

Williams, "[t]he regulations indicate that two plants across town

will rarely be considered a single site for purposes of a mass

layoff." Williams, 23 F.3d at 934.

Based on the DOL's regulations and our case law, we conclude

that separate facilities are only to be treated as a single site of

employment if all three factors identified in the regulations are

met, namely: 1) the separate facilities are in "reasonablegeographic proximity" of one another; 2) they are "used for the

same purpose"; 3) and they "share the same staff and equipment."

20 C.F.R. § 639.3(i)(3). Any other reading would be inconsistent

with the plain language of the regulation.

Because we agree with the district court that the three stores

did not share the same staff or equipment, we need not address the

other factors and express no view on the district court's

resolution of these issues. We will consider separately the

questions of whether the three Delchamps stores shared the same

staff or equipment.

C.

Appellants have adduced evidence that roughly 30 percent of

full-time employees at the Lake C harles-area stores had been

permanently transferred between stores at least once during a

ten-year period. There is also evidence that in the thirty-one

weeks leading up to the closures, roughly 20 percent of the total

employees of the three stores had been transferred on a temporary

basis to assist with temporary employment shortages i n other

stores. Such temporary transfers appear to have been of short

duration, ranging between a few hours to, in at least one instance,

just over six weeks.

However, uncontroverted summary judgment evidence established

that each of the stores employed and controlled its own workforce

and that at no time did the stores employ workers in common. To

the contrary, the record establishes that Delchamps took pains to

ensure that any transferred employee was paid by the temporary

store, rather than the employee's base store. In short, there issimply no evidence that the stores routinely shifted the "same

employees" between the sites.

Even assuming these tr ansfers constitute "sharing" of

employees as envisioned by the regula tions, the relatively small

number of the se transfers suggest that they do not rise to a

sufficient level to consider the stores a single site of

employment. The regulations strongly suggest that WARN only

applies if an employer "regularly shifts or rotates the same

employees from one building to another." 20 C.F.R. § 639.3(i)(3).

In other words, occasional intermingling of various employees is

insufficient to place an employer within the act's coverage. S ee,

e.g., Frymire v. Ampex Corp., 61 F.3d 757, 767 (10th Cir.1995)

("[E]ven assuming transfers did occur frequently, we cannot equate

this phenomenon with the "shifting,' "rotating' or even "sharing'

of employees that defines a non-"separate' workforce.") (citations

omitted); R ifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1281

(8th Cir.1996) ("[O]ccasiona l transfers of employees and office

equipment ... does not establish the necessary connection between

locations to constitute a single site." ) Hooper v. Polychrome,

Inc., 916 F.Supp. 1111, 1117 (D.Kan.1996) ("[E]ven assuming that a

significant number of employees of either facility spent a portion

of their time at the other facility, we cannot equate this periodic

occurrence with the "shifting,' "rotating' or even "sharing' of

employees of a non-"separate' workforce....").

The regulations also state by way of example that facilities

located on opposite sides of a town should be considered separate

sites of employment if they employ "different workers." 20 C.F.R.§ 639.3(i)(4). Here, it is undisputed that nearly 70 percent of

the total combined workers of the three stores over a ten year

period were never permanently transferred between stores. An even

greater number were never transferred on a tempo rary basis.

Combined with the fact that no employee was ever paid at one store

for work performed at another, these numbers convince us that each

Delchamps store employed "different workers" within the meaning of

the DOL's regulations.

D.

The same conclusion applies to appellants' claims that the

stores routinely shared equipment. The only piece of equipment

appellants have pointed to as being used commonly between the three

stores is a single pressure washer. Appellants also point to

several instances where produce or other inventory was transferred

between stores when one store had a need and the other a surplus.

Even assuming these occa sional transfers of inventory are

significant for purposes of the regulations, the record establishes

that these transfers were either closely documented and accounted

for on each store's separate books, or the inventory was traded for

other merchandise. S ee, e.g., Rifkin, 78 F.3d at 1281

("[O]ccasional transfers of employees and office equipment between

the different sites

... does not establish the necessary connection

between locations to constitute a "single site.' There is no

evidence that employees and equipment are regularly shared as

opposed t o occasionally transferred."); H ooper, 916 F.Supp. at

1117 ("[W]e do not bel ieve that the use of isolated pieces of

equipment

... mandates a determination of "single site' status.").Under the circumstances we find no support for the conclusion that

the stores regularly shared equipment.

III.

Because appellants have failed to produce compet ent summary

judgment evidence establishing that Delchamps' three Lake

Charles-area stores regularly shared the same staff or equipment,

their WARN claims must fail. Accordingly, the order of the

district court granting summary judgment in favor of Delchamps is

AFFIRMED.

AFFIRMED.