* The HONORABLE DONALD D. ALSOP, United States District Judge

for the District of Minnesota, sitting by designation. The Honorable Lawrence O. Davis, United States Magistrate 1 Judge fo the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)(1988). ___________ No. 95-2605

___________ Leonard Rifkin, James F. * Hutson, on their own behalf * and on behalf of all others * similarly situated; Gerald * Blair, * * Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. McDonnell Douglas Corporation, * a Corporation, * * Appellee. *

___________ Submitted: January 8, 1996 Filed: March 6, 1996

___________ Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP, District * Judge.

___________ ALSOP, District Judge. Appellants Leonard Rifkin, et al., bring this action claiming McDonnell Douglas Corporation violated their rights under th e Worker Adjustment and Retraining Notification (“WARN”) Act b y failing to provide timely notice to workers who suffered a n emplo yment loss. 29 U.S.C. §§ 2101-09 (1992). They appeal th e District Court’s ruling that there was no “mas s layoff” as defined 1There are actually two locations in St. Charles County and 2 numerous locations in St. Louis County. The parties do not dispute whether the locations within each separate county may be grouped together. The only dispute is whether those locations in St. Louis County may be grouped together with the two St. Charles County locations. Accordingly, we simply refer to St. Louis County and St. Charles County as two different locations as opposed to multiple locations. -2- in the WARN Act because the re quisite 500 employees did not suffer
an employment loss and, because there was no “mass layoff”, th e WARN Act does not apply. We affirm.

I.

In early 1992, Leonard Rifkin and James F. Hutson wer e employees of McDonnell Douglas Corporation in the metropolitan St. Louis area. Between October 16, 1992 and January 14, 1993, 60 9 emplo yees, including appellants, were laid off by McDonnel l Douglas. None of these employees received the 60 days’ writte n notice required by the WARN Act.
These 609 employees worked at different locations in the St. Louis metropolitan area. Five hundred sixty-two (562) employee s worked at the St. Louis County location whereas 47 employees worked at the St. Charles County location. These two locations are 11 1⁄2 2 miles apart. Fifty-two (52) employees were “part-time” employees as defined by the WARN Act (50 at the St. Louis County locat ion and 2 at the St. Charles County location). Both parties agree th e pa rt-time employees do not count towards the requisite 50 0 employees. Thirty-five (35) employees who had been laid off during this period were rehired within six months (32 at St. Louis and 3 at St. Charles). Thirty-one (31) employees elected earl y retirement in lieu of being laid off (all at St. Louis).A “mass layoff” is also defined as a layoff of at least 33 3 percent of the employees, at a minimum of 50 employees (excluding part-time employees). 29 U.S.C. § 2101(a)(3). Appellant does not argue this, however. Appellants also challenge the District Court’s denial of class 4 certification in the underlying matter. This issue will not be addressed because, as a result of the court’s present holding, the issue is moot. -3- Appe llants Rifkin and Hutson filed suit in the Easter n District of Missouri on January 21, 1993 claiming McDonnell Douglas violated the WARN Act. On Aug ust 11, 1993, appellants filed their first amended complaint adding Gerald Blair as a plaintiff an d requesting they be allowed to bring the suit as a class action on behalf of all McDonnell Douglas employees who were permanent ly laid off be tween October 16, 1992 and January 14, 1993. A motion fo r class certification filed October 13, 1993 was denied by th e Honorable Charles Shaw on December 22, 1994.

McDo nnell Douglas filed its Motion for Summary Judgment o n January 7, 1995, arguing the WARN Act does not apply because there was no “mass layoff.” Under the WARN Act, at least 500 employees
mu st suffer an “employment loss” at a single site in order fo r there to be a “mas s layoff.” First, McDonnell Douglas argued the 3 St. Loui s County and St. Charles County sites were not a “singl e site ” as defined by the WARN Act and thus the number of laid of f employees from these separate locations could not be aggrega ted for pu rposes of meeting the 500 employee requirement. Second , McDonnell Douglas argued that employees who were laid off an d later rehired within six months did not suffer an employment loss a s de fined by the WARN Act because their layoffs were not in fac t perm anent. Finally, McDonnell Douglas argued the employees wh o op ted for early retirement in lieu of layoff did not suffer a n employmen t loss as defined by the WARN Act. The District Cour t 4-4-

granted McDonnell Douglas’s Motion for Summary Judgment. Ac cording to the court below, the St. Lo uis and St. Charles sites were not a-5-

“single site”, and those emplo yees laid off and rehired within six months and those employees who opted for early retirement in lieu of layoff did not suffer an em ployment loss. Accordingly, the 500 employee requisite number was not met. Mr. Rifkin, et al., now appeal the District Court’s decision in all respects.

II.
Summaryjudgment is appropriate when no genuine issue o f material fact remains and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We review a grant of summary judgment de novo, applying the same standard as the trial court

. We view the record in the light most favorable to the non-movin g party, with all reasonable inf erences drawn in that party’s favor. Andersonv. Liberty Lobby, Inc. , 477 U.S. 242, 255. But if th e record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574 , 587 (1987). We also review a district court’s interpretation of a statute de novo. Crane v. Sullivan , 993 F.2d 1335, 1336 (8th Cir. 1993).
The WARN Act requires that an employer give 60 days’ notice to all affe cted workers before ordering a mass layoff. 29 U.S.C. § 2102(a)(3)
. A mass layoff is defined as a reduction in forc e which: (B) results in an employment loss at the single 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); or (ii)at least 500 employees (excluding any part time employees); . . . 29 U.S.C. § 2101(a)(3).-6-

Appellant argues the WARN Act applies because, under §-7-

21 02(a)(3)(B)(ii), at least 500 employees suffered an employmen t loss at the single site composed of the metropolitan St. Loui s area, including the St. Charles County sites. The issues to b e determined on appeal all concern the aggregation of the number of employees who suffered an employment loss: (A) whethe r geogra phicallyseparate sites, those located in St. Louis Count y and those in St. Charles County, compose a “single site”, thu s allowing the aggregation of the number of laid off employees a t both locations; (B) whether employees at these locations who were laid off and then rehired with in six months suffered an employment loss as defined by § 2101(a)(6); (C) whether employees at the St. Louis sites who chose early retirement in lieu of layoff suffered an employment loss as defined by § 2101(a)(6).

A. Single Site

There is no statutory definition of “single site” o f employ ment in the WARN Act but Deparment of Labor (“DOL” ) regulations and comments provide significant guidance i n interp reting these provisions. The DOL Comments to the WARN Ac t state: “workers who suffer an employment loss at another singl e site o f employment are not counted in determining whether plan t closing or mass layoff coverag e thresholds are met.” DOL Comments, 54 Fed. Reg. 16,042, 16,047 (1989). The DOL defines “single site of employment” spatially by stating a “single site of employmen t
ca nrefer to either a single location or a group of contiguou s locations.” 20 C.F.R. § 639.3(i)(1)(1995). As a general rule , ge ographicallyrelated facilities are single sites of employmen t whereas geographically separat e facilities are separate sites. DOL Comments, 54 Fed. Reg. 16,042, 16,049-50 (1989).

Sites need not be contiguous in order to be considered a-8-

“single site”, but in order for non-contiguous sites to be deemed a “single site”, there must be some connection between the sites-9-

beyond that of common ownership. In the situation of non

contiguous sites, the DOL states:

(4) No n-contiguous sites in the same geographic are a which do not share the same st aff or operational purpose should not be considered a single site. For example , assembly plants which are loca ted on opposite sides of a tow nand which are managed by a single employer ar e se parate sites if they employ different workers. 2 0 C.F.R. § 639.3(i)(4)(1995). A DOL discussion paper further clarifies that “geographically separate buildings (i.e. several blocks or miles apart) would not appear to constitute a single site unless they were part of a singl e operation. An example of such an exception might be tw o
wa rehouses several blocks apart sharing the same staff an d equipment.” 9A Ind.Empl.Rights Man. (BNA) 595:954 (1988) ; International Union, United Mine Workers v. Jim Walter Resources, Inc. , 6 F.3d 722 (11th Cir. 1993).
The WARN Act’s legislative history supports this definition. The House/Senate conferees removed “all references to ‘place o f employment’ and replace[d] them with ‘single site of employment.’ This change is intended to clarify that geographically separat e operations are not to be combined when determining whether th e employment threshold for triggering the notice requirement i s met.” H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 1045 (1988) , reprinted in1988 U.S.C.C.A.N. 2078, 2079.

Other circuits interpret the regulations and legislativ e history similarly, holding that sharing of staff and equipme nt, and sharing the same operational purpose are appropriate criteria for dete rmining whether two non-contiguous sites comprise a “singl e site” under the WARN Act. See Williams v. Phillips Petroleu m Company , 23 F.3d 930 (5th Cir. 1994); International Union, United Mine Workers v. Jim Walter Resources, Inc. , 6 F.3d 722 (11th Cir.-10-

1993).-11-

Appell ant argues: (1) he has created a genuine issue o f mater ial fact as to whether the St. Louis and St. Charles site s share the same staff, equipment, and operational purpose; and, in the alternative, (2) the “truly unusual organizational situation” exceptionset forth at 20 C.F.R. § 639.3(a)(i)(8) applies in th e case at hand.

(1) Operational staff and purpose
Appellants argue their submissions create a genuine issue of material fact as to whether the St. Louis and St. Charles lo cations are a “single site”. The evidence alleges that McDonnell Douglas operations are, in general, quite integrated. The evidence further alleges occasional transfer of employees and office equipmen t between the different sites, and central maintenance of personnel files. This evidence, even if true, does not establish th e necess aryconnection between locations to constitute a “singl e site.” There is no evidence that employees and equipment ar e regularlyshared as opposed to occasionally transferred. Ji m Walter s , 6 F.3d at 726. Further, appellants alleged som e similarities and connections amongst the products produced at the differ ent sites. However, similarity of “operational purpose ” means more than “produce the same product.” It suggests, at least, the sharing of some management and personnel. Jim Walters , 6 F.3d at 727. Appellants’ evidence does not establish a genuine i ssue of material fact regarding any of these “single site” criteria.

(2) Truly Unusual Organizational Situation
Appell ants also argue McDonnell Douglas’s St. Louis and St

. Charle s locations fit within the “truly unusual organizationa l situation” exception to the “single site” rule. 20 C.F.R. §-12-

639.3(a)(i)(8)(1995). Under th is exception, two or more apparently separate sites may be deemed a “single site” if other criteria set-13-

out by the DOL do not reasonably apply. The case which bes t defines this exception is Carpenters Dist. Council v. Dillar d Dep’t Stores , 15 F.3d 1275, 1290 (5th Cir. 1994), cert. denied , 11 5 S.Ct. 933 (1995). In Carpenter’s Di st. Council , the court held that two
se parate locations were a “single site” when employees, house d together, were split off into a different building due to spac e considerations yet continued to perform the same functions. In the situation at hand, there is no thing unusual about the organization of the St. Louis and St. Charles County sites. Any connectio n betwe en the two sites is nothing more than that present in mos t large corporate organizations.
The St. Louis and St. Charles sites are not a “single site” as defined by DOL regulations and they do not come under the “trul y unusual organizational situation” exception. Accordingly, th e number of employees who suffered an employment loss at these tw o separate locations may not be aggregated to reach the 500 employee threshold.
The Court’s holding that the St. Louis and St. Charles sites
are not a “single site” has the following effect. Of the 60 9 employees who allegedly suffered an employment loss, 47 worked at the St . Charles location, leaving the total potential number o f employees suffering an employm ent loss at 562. Forty-nine (49) of th e St. Louis employees were part-time employees, reducing th e total to 513. Thirty-two (32) St. Louis employees were rehire d within 6 months and 28 retired before layoff. If those employees who were rehired within six months did not suffer an employmen t loss, then the total potential number of employees suffering a n employment loss is 481. In the alternative, if those employ ees who opted for early retirement in lieu of a layoff did not suffer a n employment loss, the total pot ential number of employees suffering-14-

an employment loss is 485. Accordingly, if appellants’ arguments on either issue fail, this Court must affirm the lower court-15-

because the 500 employee requirement is not met.

B. Rehired employees
The layoff notice given to the affected employees stated they
were being laid off as part of a reduction in force and that th e layoff was “expected to be permanent.” Thirty-two (32) of thes e employees were rehired within six months. The WARN Act define s “employment loss” as . . . “(A) an employment termination, othe r than a discharge for cause, voluntary departure, or retireme nt, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period.” 29 U.S .C. § 2101(a)(6). Appellants argue that, because the layoff s were “expected to be permanent”, these were employment termi nations and the situation falls under § 2101(a)(6)(A). Thus, appellant s argue, the subsequent rehiring was irrelevant.

Acommon sense reading of the statute indicates it is th e actuality of a termination whi ch controls and not the expectations of the employees. An employee cannot be defined as “termina ted” if he or she is, in fact, rehiredin the same position. Further, the fact that the layoff was merely “expected to be permanent” a s opposed to a termination left open the possibility of a rehire and thus weighs against classifying this situation as an employmen t termination.

Al thoughthe DOL has never addressed this particula r situat ion, its comments indicate it is actuality and no t expe ctations or terminology which control whether or not a n employment loss has occurred. Aco mmentator questioned whether employees laid off for a n indefinite period (i.e. where the employer expects to recall them but does not know whether their recall will occur before-16-

or after 6 months) are automatically to be considered a s experiencing an employment loss at the time of the layoff. In this situation, the layoff is not automatically deemed an-17-

employment loss. If the layof f lasted for more than six months, the workers would expe rience an employment loss, would be counted toward the trigger level for the plant closing or mass layoff of whic h their individual layoffs were a part, and would have been entitled to notice i f the layoff or closing met coverage thresholds. DO L Comments, 54 Fed. Reg. 16,042, 16,049 (1989). Finally, this conclusion is co nsonant with the purpose of the WARNAct, that is, “to ensure adequate opportunities (by way o f
no tice of imminent employment loss) for retraining and/o r reemployment.” Moore v. Warehouse Club, Inc. , 992 F.2d 27, 30 (3d Cir. 1993). It is designed to give “workers and their familie s some t ransition time to adjust to the prospective loss o f employment, to seek and obtainalternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market.” 20 C.F.R. § 639. 1 (19 95); Martin v. AMR Services Corp. , 877 F.Supp. 108, 11 3 (E.D.N.Y. 1995), aff’d , Gonzal ez v. AMR Services , 68 F.3d 1529 (2d Cir. 1995). Employees in the situation at hand who were in fac t
re hired do not fall within the purpose of the WARN Act becaus e there is no need for retrainin g or alternative jobs. Accordingly, the number of employees rehired within six months do not coun t to wards the requisite 500 employees who suffered an employmen t loss. Oil, Chemical, and Atomi c Workers, Int’l Union, Local 7-515, AFL-CIO v. American Home Prods . Corp. , 790 F.Supp. 1441 (N.D. Ind. 19 92)(holding that employees whose positions were terminated bu t were later rehired within six months did not suffer an employment loss.); cf Martin v. AMR Servs. Corp. , 877 F.Supp. 108 (E.D.N.Y
. 1995), aff’d , Gonzalez v. AMR Services , 68 F.3d 1529 (2d Cir

. 1995); Kildea v. Electro Wire Products , Inc. , 775 F.Supp. 101 4 (E.D.Mich. 1991).

C. Retirees-18-

Finally, appellants argue that those employees who opted for-19-

ear lyretirement in lieu of layoff suffered an “employment loss ” under the WARN Act. Once agai n, employment loss is defined in the WARN Act as “(A) an employment termination, other than a discharge for cause, voluntary departure, or retirement.” 29 U.S.C. § 2101(a )(6)(A). The plain wording of the statute indicates a retirement is not an “employment loss.” DOL Comments state:

If . . . at the time the decision to give notice has to be made, the employer is not certain that its earl y ret irement incentives will be accepted or how man y work ers will accept early retirement, the employer i s best advised to give notice. If the employer ‘gambles’ that a sufficient number of employees will accept th e offer and ‘loses’, the employer’s cost will be 60 day’s pa yand benefits . . . .” DOL Comments, 54 Fed. Reg

. 16,042, 16,043 (1989). By implication, the DOL’s position is that early retirement in lieu of layoff is not an “employmen t loss” under the WARN Act. This is consonant with the purpose of the WARN Act, providing time fo r retra ining and reemployment, because those who choose earl y retirement are not in need of such warning. Accordingly, we agree withthe lower court that those employees who opted for earl y retirement in lieu of layoff did not suffer an “employment loss.”

III. In summary, the work sites loc ated in St. Louis County cannot be jo ined with those located in St. Charles County to compose a single s ite and thus the number of workers at the separate site s maynot be aggregated for purposes of meeting the 500 employe e requisite for a “mass layoff” under the WARN Act. Further, those employees who were laid off an d later recalled within 6 months and those employees who opted for early retirement in lieu of a layoff did not suffer an “employment loss” as defined by the WARN A ct and, accordingly, do not count for purposes of meeting the 500 employee req uisite for a "mass layoff." Finally, the district court' s-20-

denial of class certification is moot as appellant’s claims fail on the-21-

mer its. Accordingly, for the reasons discussed above, we affir m the District Court’s order gra nting summary judgment for McDonnell Douglas Corporation.

A true copy.

Attest:

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