DARRIEST LIKES, and all other similarly situated persons, Plaintiff - Appellant,
DHL EXPRESS (USA), INC., Defendant - Appellee
Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:10-cv-02989-VEH.
For DARRIUS LIKES, and all other similarly situated persons, Plaintiff - Appellant: Lee David Winston, Roderick T. Cooks, Winston Cooks, LLC, Birmingham, AL.
For Dhl Express, Defendant - Appellee: Shannon L. Miller, Jackson Lewis, PC, Birmingham, AL; Devand Anthony Sukhdeo, Jackson Lewis, PC, Miami, FL.
Before ED CARNES, Chief Judge, JILL PRYOR and HIGGINBOTHAM,[*] Circuit Judges.
In this putative class action, plaintiff Darriest Likes 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.
Until 2009, DHL maintained a delivery 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, Sky 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 actually delivered for another company. In any 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, contractor Wood Airfreight, DHL agreed to provide retention payments to the contractor's employees who worked 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 we 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 nor collateral estoppel based on a previous lawsuit between the parties applied, and (2) Mr. Likes could show DHL was his employer. Even with those 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 ...