[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 14

- 13076

________________________ D.C. Docket No. 2:10

- cv - 02989

- VEH

DARRIEST LIKES, and all other similarly situated persons, Plaintiff

- Appellant,

versus DHL EXPRESS (USA), INC., Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Alabama

________________________ (May 29, 2015) Before ED CARNES , Chief Judge, JILL PRYOR and H IGGINBOTHAM, ∗ Circuit Judges.

∗ Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by designation.

Case: 14-13076 Date Filed: 05/29/2015 Page: 1 of 102 PER CURIAM: In this putative class action, plaintiff Darriest Likes 1 appeals the district
court’s entry of summary judgment in favor of DHL

. Mr. Likes alleges that DHL violated the Worker Adjustment and Retraining Notification Act (“WARN Act”) by failing to provide 60 days’ notice before Mr. Likes was laid off from his job at DHL’s Birmingham delivery facility. After careful review, and with the benefit of oral argument, we affirm

. I. Until 2009 , DHL maintained a d elivery network in the United States consisting of approximately 300 contractors that employed drivers who delivered packages for DHL. DHL’s agreements with these contractors

— including the three companies working out of its Birmingham delivery facility, S ky Land Express, Territory Reps, Inc., and Wood Airfreight, Inc.

— expressly did not prohibit the
contractors from delivering packages for other companies

. However, DHL’s former director of independent contractors could recall only two instances nationally where contractors actuall y delivered for another company. 2 In any

1 Mr. Likes is alternately referred to as “Darrius ” Likes in the briefing and record in this case. Mr. Likes has informed the Court that the correct spelling of his first name is “Darriest , ” so we use that spelling here. 2 T hese two instances involved contractors in remote locations: the island of Saipan and Anchorage, Alaska.

Case: 14-13076 Date Filed: 05/29/2015 Page: 2 of 103 event, each of the Birmingham facility contractors received 100 percent of their business from DHL. In 2008, DHL began to phase out its U.S. domestic delivery program and entered into Termination and Transition Agreements (“TTA”) with each of its
contractors. In the TTA with Mr. Likes’ s employer , 3 contractor Wood Airfreight , DHL agreed to provide retention payments to the contrac tor ’s employees who work ed until the TTA’s termination date or until the contractor no longer needed the employee’s services as delivery volume dropped. Mr. Likes was laid off in December 2008.
Mr. Likes filed this lawsuit as a class action , alleging that DHL violated the
WARN Act by failing to provide 60 days’ notice of impending layoffs. The district court denied Mr. Likes’ s request to certify the case as a class action, and w e denied his petition for interlocutory review of that ruling. The district court then granted summary judgment to DHL. The court assumed, without deciding, that (1) neither res judicata n or collateral estoppel based on a previous lawsuit between the parties applied, and ( 2) Mr. Likes could show DHL was his employer. Even with tho se assumptions, the court held that Mr. Likes failed to demonstrate the existence of a genuine issue of material fact with respect to his WARN Act claim because he

3 Mr. Likes moved this Court to supplement the appendix to his appeal with a copy of the TTA between DHL and Wood Airfreight

. Because consideration of the terms of the TTA is relevant to this appeal, the motion is GRANTED

.

Case: 14-13076 Date Filed: 05/29/2015 Page: 3 of 104 could not show that 50 or more employees were laid off from a single work sit e. Mr. Likes appeals both the class action determination and the summary judgment ruling.

II. We review summary judgment decisions de novo and “ draw all inferences and review all evidence in the light most favorable to the nonmoving party.”
Airtran Airways, Inc. v. Elem , 767 F.3d 1192, 1196 (11th Cir. 2014)

. Summary judgment is appropriate when there is “no genuine dispute as to an y material fact and the mov ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute regardin g a material fact is genui ne “ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. ” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probati ve, summary judgment may be granted.” Id

. at 249

- 50 (internal citations omitted)

. III. The WARN Act requires that “[ a ] n employer shall not order a plant closing or mass layoff” without providing 60 days’ notice to workers. 29 U.S.C. § 2102(a). The parti es agree that DHL did not provide the requisite notice of termination. Thus, to establish a WARN Act claim , Mr. Likes must demonstrate

Case: 14-13076 Date Filed: 05/29/2015 Page: 4 of 105 that he was (1) an employee of a qualified employer and (2) the subject of a mass layoff. The WARN Act defines an “employer” as “any business enterprise that employs . . . 100 or more employees.” Id

. § 2101(a)(1)

. The Department of Labor’s (“DOL”) regulations implementing the WARN Act state that an independent contractor should be considered either a separate employer or a joint employer with a contracting company “depending upon the degree of their independence ” from the contracting company. 20 C.F.R. § 639.3(a)(2). The regulations provide a list of five factors drawn from “existing legal r ules ” to help determine whether an independent contractor is truly independent or not: “(i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and ( v) the dependency of operations” between the independent contractor and contracting
company. Id

. Wood Airfreight, Mr. Likes’ direct employer, did not have 100 o r more employees and therefore wa s not subject to WARN Act liability. Mr. Likes argues that DHL , which employ ed enough people to qualify as an “employer” for purposes of the WARN Act, was Mr. Likes’ joint employer under the DOL regulations. Case: 14-13076 Date Filed: 05/29/2015 Page: 5 of 106 DHL argues that Mr. Likes is barred by collateral estoppel from arguing that DHL is his joint employer. In 2008, Mr. Likes filed a separate lawsuit against DHL, alleging violations of the Fair Labor Standards Act (“FLSA”). In that case,
t he district court held that Mr. Likes could not show that DHL was his joint employer for purposes of FLSA liability. Darri est Likes v. DHL , No. 2: 08

- cv 00428

- AKK, ECF No . 112 at 25 (N.D. Ala. Mar. 7, 2012) [hereinafter Likes I ]. DHL argues that the district court’s holding in Likes I precludes Mr. Likes from arguing that DHL was his employer for purposes of liability under the WARN
Act. 4 Alternatively, DHL argues that Wood Airfreight was Mr. Likes’ s sole employer under the DOL regulations. We need not decide whether collateral estoppel applies or whether DHL employed Mr. Likes because we agree with the district court that , even assuming DHL qualifie d as his employer, Mr. Likes cannot show he was the subject of a mass layoff under the WARN Act

.

4 DHL also argues that res judicata bars Mr. Likes’ s argument

. “In order f or the doctrine of r es judicata to bar a subsequent suit, four elements must be pre sent: (1) there must be a final judgment on the merits, (2) the decision must be rendered by a court of competent jurisdiction, (3) the parties, or those in privity with them, must be identical in both suits; and (4) the same cause of action must be involved in both cases .” I .A. Durbin, Inc. v. Jefferson National Bank , 793 F.2d 1541, 1549 (11th Cir. 1986). Because Likes I arose under FLSA and concerned back pay, while this case arises under the WARN Act a nd concerns notice of layoffs , t hese causes of action are not the same , and thus res judicata does not apply.

Case: 14-13076 Date Filed: 05/29/2015 Page: 6 of 107 IV. As relevant here, the WARN Act defines a mass layoff as a reduction in
force that : (B) results in an employment loss at the sing le site of employment during any 30

- day period for

— (i)(I) at least 33 percent of the employees (excluding any part

time employees); and (II) at least 50 employees (excluding any part

- time employees) 29 U.S.C. § 210 1 (a) (3)(B)

. It is undisputed that Wood Airfreight laid off fewer than 50 employees, so its reduction in work force alone cannot result in WARN Act liability. Mr. Likes argues that the DHL Birmingham facility was a “single site of employment” such that the layoffs from all three contractor s that used the facility should be aggregated ; together, the three companies laid off more than 50 employees

. DOL regulations explain that a “ single site of employment can refer to either a single location or a group of contiguous locations.” 20 C.F.R. § 639.3(i)(1). “There may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within such a buildi ng.” Id . § 639.3(i)(2). And “[c] ontiguous buildings owned by the same empl oyer which have separate management, produce different products, and have separate workforces are considered separate single sites of employment.” Id . § 639.3(i)(5).

Case: 14-13076 Date Filed: 05/29/2015 Page: 7 of 108 I n holding that the Birmingham facility constituted multiple sites of employment , t he dis trict court relied on International Union, United Mine Workers v. Jim Walter Resources , 6 F.3d 722 (11th Cir. 1993), the only case in which we have i nterpreted 20 C.F.R. § 639.3(i). In Jim Walter , we considered a plaintiff’s ability to aggregate employees from separate work sites run by one employer in
order to meet the WARN Act’s threshold nu mber of terminated employees. The
p laintiffs argued that they should be able to aggregate employees from several mines, three of which were geographically contiguous and two of which were connected underground. 6 F.3d at 725. The employer often moved coal among the
mines , but the mines did not share workers

. We reasoned that the proper focus of the single site analysis is on day

- to

- day managemen t, administration, and personnel flow. Relying on the DOL regulations, we held that the mines did not qualify as a single employment site because “ the day

- to

- day management and employee structures at the four mines are fundamentally distinct.” Id . at 72 7

. Here, DHL’s contr actors worked out of the same Birmingham facility, but
each had distinct “ day

- to

- day manage ment and employee structures. ” Id

. The evidence is undisputed that Wood Airfreight hired and fired its own employees, maintained its own personnel policies, rented its own delivery equipment, and ran its own payroll. Mr. Likes has presented no evidence suggest ing that employees moved between the different contractors at the Birmingham facility or that the

Case: 14-13076 Date Filed: 05/29/2015 Page: 8 of 109 contractors shared day

- to

- day management. To the contrary, the record shows that

e ach contractor had its own administrative staff and payroll , made personnel decisions individually, and delivered packages to a distinc t geographic area of Birmingham. We thus conclude that t he Bir mingham facility wa s most similar to a situation where “[c]ontiguous buildings owned by the same employer . . . have separate management, produce different products, and have separate workforces,” which the regulations “consider[] separate single sites of employment.” 20 C.F.R. § 639.3(i)(5). Although they operate d out of a common facility, t he Birmingham contractors lack ed the “operational c onnection” the DOL regulation deems necessary to constitute a single site of employment. Jim Walter , 6 F.3d at 725 (“‘ The common thread in determining what is a single site would appear to be a sufficient degree of geographic contiguity as well as an operational connection. ’ ” (quoting 9A Ind. Empl. Rights Man. (BNA) 595:954 (1988))). Under Jim Walter and the DOL regul ations, the contractors were too distinct from each other for the Birmingham facility to be a single site of employment, even if DHL was Mr. Likes’s joint employer.
Because Mr. Likes has presented no evidence from which a reasonable jury could conclude tha t the Birmingham facility constituted a single site of employment, an element necessary for a WARN Act violation, we affirm the

Case: 14-13076 Date Filed: 05/29/2015 Page: 9 of 1010 district court’s grant of summary judgment to DHL. We therefore need not determine whether the district court properly denied class certification. AFFIRMED. Case: 14-13076 Date Filed: 05/29/2015 Page: 10 of 10