In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3596

JOHN ELLIS, TIMOTHY PRICE, and

all others similarly situated,

Plaintiffs-Appellants,

v.

DHL EXPRESS INC. (USA) and

DEUTSCHE POST AG, formerly known as

DEUTSCHE POST WORLD NET,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CV 06541—Matthew F. Kennelly, Judge.

ARGUED SEPTEMBER 9, 2010—DECIDED JANUARY 11, 2011

Before WOOD, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Package delivery service DHL

Express and its German parent company, Deutsche Post

AG, publicly announced on November 10, 2008, that

they would stop offering U.S. domestic shipping on

January 30, 2009. This announcement effectively sounded
2 No. 09-3596

the death knell for five of DHL’s six Chicagoland

facilities, which handled domestic parcels almost exclusively and had been shedding jobs since August. The

union that represented the drivers and clerical workers

at those facilities, the International Brotherhood of Teamsters Local 705, immediately began talks with DHL to

negotiate severance agreements for its members. (The

collective bargaining agreements that covered the

workers did not provide for severance benefits.) The

negotiations were successful and on December 5, 2008,

yielded a severance agreement for each bargaining unit,

the drivers and the office workers. The agreements

became operative on December 9, 2008, when DHL’s

representative signed them. Whether DHL violated the

Worker Adjustment and Retraining Notification

(WARN) Act, 29 U.S.C. §§ 2101-2109, in reaching and

implementing these agreements is the principal question before us in this appeal.

The agreements contained a number of different severance benefits packages. The first was available to up to

325 of DHL’s full-time drivers. Drivers who opted (and

qualified on seniority grounds) for this package would

receive ten weeks of pay and benefits. Drivers had little

time to decide whether to participate in this plan;

they were simultaneously required to complete a job

rebid form on which they had to indicate by the close

of business on December 11, 2008, not only their future

shift preferences but also whether they had signed up

for the ten-week plan. The other severance packages

Local 705 negotiated provided four rather than ten weeks

of pay and benefits but were otherwise substantially
No. 09-3596 3

similar to the ten-week plan. There were no limits

placed upon the number of workers who could enroll

in the four-week plans, though one of the packages for

each bargaining unit was aimed exclusively at individuals who had already been laid off (these packages

provided no benefits), and the others were aimed

at workers who remained on staff. Drivers and alreadylaid-off office workers were given until December 22,

2008, to decide whether they wanted to participate in

the four-week plans. Employed office workers appear to

have been given until January 18, 2009, to make their

decisions.

Workers who accepted any of the Local 705-negotiated

severance packages signed the following “General

Waiver and Release”:

For and in consideration of the receipt of the

Severance Payment and other benefits provided

in the Effects Bargaining Agreement (which

I acknowledge are payments and benefits beyond

anything to which I am already or otherwise

entitled), I hereby waive, release and discharge

DHL Express (USA), Inc., its parent corporation,

subsidiaries, related corporations and affiliates,

their successors and assigns, and their shareholders, officers, directors, employees and agents

(hereinafter together the “Company”), and the

Teamsters Local Union No. 705, affiliated with the

International Brotherhood of Teamsters (hereinafter the “Union”) from any and all actions, causes

of action, demands, claims or liabilities (whether
4 No. 09-3596

known or unknown) arising out of my employment or the termination of my employment by

the Company, including but not limited to any

claims under any federal, state, or local law concerning employment rights or employment discrimination of any type, including the National

Labor Relations Act, the Illinois Worker Adjustment and Retraining Notification Act, the Federal

Worker Adjustment and Retraining Notification

(WARN) Act, and laws involving claims of discrimination based on race, sex, religion, national

origin, disability, veteran’s status, union activity, marital status, retaliation, harassment

or other protected categories, claims for breach of

any implied or express employment contracts or

covenants, claims for wrongful termination, public

policy violations, defamation, emotional distress

or other common law torts, or claims under any

Collective Bargaining Agreement, Supplemental

Agreement, Memorandum of Understanding

(MOU), or any other agreement between the

Company and the Union. I further understand

that by accepting the Severance Payment, I am

giving up my employment relationship with the

Company, including any recall rights and seniority. . . . 

I acknowledge that I have been and am in this

document advised in writing to consult an attorney before executing this General Release and

that the foregoing shall operate as a general release

and as a promise not to sue, and that I have read

and understand this General Release. I acknowl-
No. 09-3596 5

edge I have received seven (7) days to consider

this General Release before signing it, and I understand that I have seven (7) days to revoke it after

I sign it.

A total of 506 workers (some of them were members of

Automobile Mechanics Union Local 701, which negotiated

its own similar four-week plan) signed a release and

resigned their employment in exchange for either four

or ten weeks of severance pay and benefits. Three

hundred nineteen drivers took the ten-week plan, while

187 workers participated in one of the three fourweek plans.

Workers who did not participate in one of the unionnegotiated severance plans did not receive any severance pay from DHL. Those individuals instead retained their seniority status and recall rights, as well as

the right to bring legal claims against DHL and its

parent, Deutsche Post. John Ellis and Timothy Price, the

named plaintiffs in this putative class action, were

DHL drivers and Local 705 members who did not participate in the union-negotiated plans. Ellis, who was laid

off days before the discontinuation of domestic shipping

was announced, and Price, who was laid off on January 9,

2009, instead filed suit, alleging that DHL and its

parent Deutsche Post failed to comply with the WARN

Act, which requires certain businesses contemplating

“plant closings” or “mass layoffs” to inform workers of

these impending events at least sixty days in advance.

Ellis and Price sought back pay and benefits. See 29

U.S.C. § 2104. They also sought to represent a class of
6 No. 09-3596

former DHL employees who had been represented by

Local 705, but the district court terminated as moot

their motion to certify a class after granting in full DHL’s

motion for summary judgment. See Muro v. Target Corp.,

580 F.3d 485, 494 (7th Cir. 2009).

The district court provided three interrelated bases for

its grant of summary judgment, all of which led it to the

conclusion that the WARN Act was not applicable here.

First, the district court concluded that the DHL layoffs could not constitute a “plant closing” as defined

in 29 U.S.C. § 2101(a)(2) because the five Chicagoland

facilities could not together be considered a “single site

of employment,” and Price and Ellis failed to put forth

allegations sufficient to raise a genuine issue of

material fact as to whether a “plant closing” occurred at

any of the individual facilities. Second, the district court

concluded that the layoffs could not constitute a “mass

layoff” as defined in 29 U.S.C. § 2101(a)(3) because the

employment losses at the five facilities (considered collectively for the sake of argument) did not reach the

requisite critical mass of 33% of the full-time workforce during the relevant statutory time period. Finally,

the district court determined that Ellis and Price failed

to raise a genuine issue of material fact regarding the

voluntariness of the union-negotiated severance agreements, fatally undermining their contention that the

workers who left DHL pursuant to those agreements

should be counted as involuntarily separated for WARN

Act purposes. See 29 U.S.C. § 2101(a)(6); 54 Fed. Reg.

16042, 16048 (Apr. 20, 1989). The district court recognized

that the DHL workers had to make a tough choice in
No. 09-3596 7

the face of daunting economic circumstances, but concluded that there was no evidence that they signed the

severance agreements involuntarily. Because it found that

the bases for its grant of summary judgment in favor

of DHL applied equally to Deutsche Post, against

whom Ellis and Price levied identical claims, the district

court sua sponte granted summary judgment in favor

of Deutsche Post as well and terminated the case. Ellis

and Price appeal the grants of summary judgment.

We review a district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in the light most favorable to the non-moving

party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th

Cir. 2010). Summary judgment is appropriate if “the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a).

The WARN Act requires “employers” (defined as

businesses with 100 or more full-time employees, 29

U.S.C. § 2101(a)(1)) to provide employees with written

notice of impending “plant closings” or “mass layoffs”

at least sixty days prior to the closing or layoffs. 29

U.S.C. § 2102. The WARN Act does not apply—and the

employer need not provide advance notice to any of

its workers—if the shutdown of a plant does not result

in an employment loss of at least 50 full-time employees

at a single site of employment, 29 U.S.C. § 2101(a)(2), or

the layoffs do not affect at least 33% of full-time employees, 29 U.S.C. § 2101(a)(3). Despite the lack of

practical distinction between eliminating 49 or 50 full-
8 No. 09-3596

time jobs, or between laying off 32% or 33% of a workforce in a thirty-day period, the numerical thresholds in

the WARN Act are immutable. See Phason v. Meridian Rail

Corp., 479 F.3d 527, 530 (7th Cir. 2007) (“The [WARN

Act] draws a lot of bright lines; it is really nothing but

lines. . . . None of these distinctions is inevitable; all are

arbitrary. But using sharp lines makes the Act easier to

administer.”). If an employer crosses one of them without

providing affected employees the requisite notice, it is

liable to provide “each aggrieved employee” with back

pay and benefits for each day that the WARN Act

was violated. 29 U.S.C. § 2104. That is why the 506 departures pursuant to the union-negotiated severance agreements are crucial here: if those workers are counted in

the total number of affected employees, DHL may

have overstepped one of WARN’s lines. If they are not

counted, however, DHL is in the clear; Ellis and Price

explicitly conceded this point twice at oral argument. We

therefore begin and end our analysis by examining the

voluntariness issue, as it is dispositive. See Spivey, 622

F.3d at 822.

The WARN Act excludes “voluntary departure[s]” from

its definition of “employment loss[es]” that trigger its

notification requirements. 29 U.S.C. § 2101(a)(6). The

WARN Act does not provide a definition of “voluntary,” though it authorizes the Secretary of Labor to issue

“such regulations as may be necessary to carry out this

chapter.” 29 U.S.C. § 2107(a). Before enacting the regulations currently codified at 20 C.F.R. §§ 639.1-639.10,

the Secretary in the Federal Register addressed public

comments. See 54 Fed. Reg. 16042 (Apr. 20, 1989). In
No. 09-3596 9

doing so, the Secretary clarified the Department of

Labor’s position on “what constitutes a ‘voluntary departure.’ ” Id. at 16048. We give significant weight to these

interpretations. See United States v. Mead Corp., 533 U.S.

218, 227-28 (2001) (“[T]he well-reasoned views of the

agencies implementing a statute constitute a body of

experience and informed judgment to which courts

and litigants may properly resort for guidance, and

[w]e have long recognized that considerable weight

should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer . . . .” (quotations omitted)); see also Johnson v.

Telespectrum Worldwide, Inc., 29 F. App’x 76, 78 (3d Cir.

2002) (giving weight to the very interpretations at issue

here).

The Secretary explained that “incentive programs,

including incentive retirement programs and voluntary

layoffs” should typically be considered voluntary departures within the meaning of the WARN Act so long

as the circumstances surrounding them comport with

traditional legal notions of voluntariness. 54 Fed. Reg. at

16048. That is, “a worker’s resignation or retirement

may be found to not be voluntary if the employer

has created a hostile or intolerable work environment

or has applied other forms of pressure or coercion

which forced the employee to quit or resign,” or “where

a worker was unduly pressured to accept the program.”

Id. The Secretary expressly disagreed with the proposition that “a worker who, after the announcement of a

plant closing or mass layoff, decides to leave early

has necessarily been constructively discharged or quit

‘involuntarily.’ ” Id. In other words, worker participation
10 No. 09-3596

in incentive programs is generally considered voluntary unless the employer improperly induced workers

to leave their jobs, either by creating a hostile or intolerable work environment or by applying other forms

of undue pressure or coercion.

We have not previously addressed the issue of voluntariness in the WARN Act context, though we have considered the voluntariness of early retirement offers. In

that analogous context, we explained, 

The “voluntariness” question . . . turns on such

things as: did the person receive information about

what would happen in response to the choice?

was the choice free from fraud or other misconduct? did the person have an opportunity to

say no? A very short period to make a complex

choice may show that the person could not

digest the information necessary to the decision.

This would show that the offer of information

was illusory and there was no informed choice.

But when the employee has time to consult spouse

and financial adviser, the fact that he still found

the decision hard cannot be decisive.

Henn v. Nat’l Geographic Soc’y, 819 F.2d 824, 828-29 (7th

Cir. 1987). The arguments raised by Ellis and Price echo

these very concerns. Ellis and Price contend that the

resignations, particularly those of the already-laid-off

workers, cannot be considered voluntary because the

employees resigned against a backdrop of extreme economic uncertainty and pressure exerted by DHL.

They emphasize that the drivers were simultaneously
No. 09-3596 11

presented with the severance agreements and the job

rebid forms, which in their view rendered any choice

they had about signing up for one of the severance packages a Hobson’s choice at best. They also contend that

the 319 drivers who accepted the ten-week plan had

inadequate time to make their decisions. With respect

to the already-laid-off workers who accepted the fourweek packages aimed at them, Ellis and Price assert

that their resignations could not possibly have been

voluntary because they did not have jobs to resign from.

While we recognize the unenviable positions in which

DHL’s Chicagoland workers found themselves, we are

unpersuaded by these arguments and cannot conclude on the evidence before us that the workers who

accepted the union-negotiated severance packages did

so involuntarily. The affidavits of former DHL employees that Ellis and Price present paint a wrenching

picture of a difficult decision that had to be made

quickly. But they do not demonstrate that the workers

were given incomplete information, or that DHL somehow strong-armed them into signing the release forms

and accepting the severance packages against their will.

(Indeed, Ellis and Price expressly disclaim any arguments that DHL harassed workers or created a hostile

work environment to induce them to resign.) To the

contrary, several affiants testified that their managers

declined to discuss the options with them. Cf. Henn,

819 F.2d at 829 (observing that employer’s unwillingness

to advise potential early retirees whether to accept an

early retirement offer was probably due to a desire to

“avoid charges of placing undue pressure on the employees”). The severance agreements and the General
12 No. 09-3596

Waiver and Release were both negotiated by Local 705

with the workers’ interests in mind, and were written

unambiguously in plain English. The General Waiver

and Release also expressly advised workers to consult

an attorney before signing, as did a letter that Local 705

sent to the already-laid-off workers.

We appreciate that two business days may not have

been an expansive window in which to fully discuss

matters with an attorney. But see Joe v. First Bank Sys.,

Inc., 202 F.3d 1067, 1070 (8th Cir. 2000) (noting that a

WARN Act plaintiff “presented no meaningful proof of

duress” which was “not surprising since [he] had the

release for two or three days and discussed it with his

attorney”). Yet “the need to make a decision in a

short time, under pressure, is an unusual definition of

‘involuntary.’ ” Henn, 819 F.2d at 828. Indeed, many

criminal defendants must decide whether to sign take-itor-leave-it plea agreements; “the need to act in haste

does not make the plea ‘involuntary’ if the defendant

knows and accepts the terms of the offer.” Id. Of

course, criminal defendants are afforded procedural safeguards to ensure that their decisions truly are

voluntary. See Fed. R. Crim. P. 11. The workers here

were not required to have their decisions evaluated by

an impartial judge, but neither is there any evidence

that DHL denied them the opportunity to educate themselves about their options or to discuss the terms of the

offers with their families, friends, financial advisors, or

attorneys. Moreover, the workers who were considering the ten-week package had not two days but

nine in which to do so; the General Waiver and Release
No. 09-3596 13

gave workers seven days after accepting a severance

package in which to reconsider and revoke their acceptance. That the workers had to decide whether to take

the bird in the hand—the severance packages—or the

bird in the bush—the right to retain their seniority rank,

remain on the recall rolls for three years, and pursue

claims against DHL—in a short period of time does

not render their decisions involuntary. Nor does

the fact that neither bird was particularly attractive.

Ellis and Price’s final argument about the voluntariness

of the departures—that the already-laid-off workers

could not leave DHL voluntarily because they had no

jobs to leave from—gets them no further. Their position

presupposes that the already-laid-off workers lost

their attachment to DHL the moment they were laid

off. The record shows, and Ellis and Price acknowledged at oral argument, that laid-off workers retained

their hard-earned seniority status and recall rights

with DHL for up to three years. If the laid-off workers

elected to sign the General Waiver and Release in exchange for the severance package, they gave up those

potentially valuable rights and fully cut their ties

with DHL. They may not have been walking away

from specific positions, but they were electing to end

their relationships with DHL rather than waiting

around for three years to see if new opportunities came

to fruition.

In offering its workers the olive branch of severance

pay, DHL was hedging its bets against WARN Act liability. Employers are permitted to “gamble” that enough
14 No. 09-3596

workers accept their proffered incentive packages to

absolve them from potential WARN Act liability, 54

Fed. Reg. at 16043, and DHL successfully tossed the dice

here. Ellis and Price are in effect asking us to prohibit such

behavior, but we cannot rewrite the WARN Act.

We likewise decline their invitation to treat the WARN

Act less like the notification procedure that it is and

more like the universally applicable Fair Labor Standards

Act and Older Workers Benefit Protection Act that it is

not. That is, we maintain our previous stance that

WARN Act claims can be waived as part of a voluntarily

signed general release. See Hardy v. Chi. Hous. Auth., 189

F. App’x. 510, 512 (7th Cir. 2006) (citing Joe, 202 F.3d at

1070, and Int’l Ass’n of Machinists & Aerospace Workers

v. Compania Mexicana de Aviacion, 199 F.3d 796, 799 (5th

Cir. 2000)).

We are left with only one issue to resolve: whether the

district court erred in sua sponte granting summary

judgment to Deutsche Post. Recall that Ellis and Price

brought WARN Act claims against both DHL and

its parent, and only DHL moved for summary judgment. The district court, reasoning that if Ellis and Price

could not prevail against one defendant they could not

prevail against its alleged alter ego, granted summary

judgment to both companies. Ellis and Price contend

that because they had limited opportunity to conduct

discovery with respect to Deutsche Post (it is based in

Germany and there was significant delay in serving it

with process and bringing it into the case), summary

judgment was inappropriately granted.
No. 09-3596 15

District courts have the authority to enter summary

judgment sua sponte as long as the losing party was on

notice that it had to come forward with all its evidence.

Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec,

529 F.3d 371, 384 (7th Cir. 2008) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986)). “In addition, we have

held that if a district court grants one defendant’s

motion for summary judgment, it may sua sponte

enter summary judgment in favor of non-moving defendants if granting the motion would bar the claim against

those non-moving defendants.” Id. (citing Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986)); see

also Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798,

807 (7th Cir. 2000) (“[W]here one defendant succeeds

in winning summary judgment on a ground common

to several defendants, the district court may also grant

judgment to the non-moving defendants, if the plaintiff

had an adequate opportunity to argue in opposition.”).

The district court did not overstep its authority here.

All of Ellis and Price’s substantive allegations implicate

both DHL and Deutsche Post; their first amended complaint even alleges that Deutsche Post was “at all times . . .

the alter ego of DHL Express and maintains strict control over DHL Express.” First Am. Compl. ¶ 4. When

the district court correctly concluded that summary

judgment for DHL was appropriate, the necessary implication was that the identical claims against Deutsche

Post could not succeed either. Whether the departures

were voluntary, whether there was a “plant closing,” and

whether there was a “mass layoff” are issues that
16 No. 09-3596

were wholly unaffected by the precise corporate identity

of the defendant. Further, Ellis and Price had ample

notice that DHL was pursuing summary judgment on

the claims that were common to both defendants, and

they vigorously opposed the motion by procuring and

coming forward with hundreds of pages of documents

and declarations. The district court’s grant of summary

judgment in favor of both defendants is AFFIRMED.

1-11-11