Voisin et al v. Axxis Drilling, Inc. et al
ORDER & REASONS granting 29 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 10/21/2015. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KETTI VOISIN, ET AL.
AXXIS DRILLING, INC. AND
TRINIDAD DRILLING, LP
ORDER AND REASONS
judgment. For the reasons that follow, the motion is GRANTED.
This putative class action lawsuit is brought on behalf of a
group of Axxis Drilling, Inc.'s former employees who were laid off
between December of 2014 and February of 2015 in response to a
downturn in oil and gas productivity. The plaintiffs' claims arise
under the Worker Adjustment and Retraining Notification Act of 1988
(the WARN Act), which requires covered employers to give notice to
plaintiffs claim they did not receive the required notice.
Until February of 2015, Axxis Drilling, Inc. operated a fleet
of five floating drilling rigs in the territorial waters of
Louisiana and Texas. While the rigs were not self-propelled, they
were periodically moved by boat to new drilling sites. Each rig had
between 24 and 43 employees. A rig manager supervised the employees
on each rig and oversaw daily operations. The rig employees worked
rotating shifts of seven days on duty and seven days off duty.
While on duty, they worked, ate, slept, and lived on the rig. At
transported to and from the rig by a boat that traveled between the
rig and a designated dock facility. Rig employees were responsible
typically drove their personal vehicles between their homes and the
Axxis also employed 20 people at an office located along the
Intracoastal Waterway in Houma, Louisiana. The Axxis office handled
operations manager and superintendent worked out of the office but
routinely visited with each rig. The rigs worked independently from
each other, but each was in daily communication with the managers
at the Axxis office. Each rig produced its own daily and weekly
reports, which it relayed to the Axxis office. Rig managers
contacted the office personnel when they needed to order parts or
have equipment sent to the barges. In short, the office functioned
as Axxis' headquarters for its drilling operations.
Adjacent to Axxis' office were two warehouses and roughly 300
feet of dock space. Axxis used the warehouses to store supplies and
spare parts for the rigs. Occasionally, when the drilling rigs were
between jobs, they were "stacked" at the dock adjacent to the Axxis
office. At most, two rigs were stacked at a time for repairs and
maintenance or to prepare to move to a new location. While they
were stacked at the dock, rig employees continued to work their
normal shifts, living and sleeping on the rigs. Lester Guilbeau,
Axxis' operations manager, testified that stacked rigs could remain
at the dock from two weeks to a month before being moved to a new
location. While stacked, rig employees parked at the Axxis office
and could walk back and forth from the rig to the office. When
Axxis laid off 101 employees in February of 2015, two of the fullystaffed rigs were stacked at the Axxis dock.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); FED. R. CIV. P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
The WARN Act requires employers who have 100 or more full-time
employees to provide affected employees with a 60-day notice before
ordering a plant closing or a mass layoff. 29 U.S.C. § 2102. The
Act defines "plant closing" as the permanent or temporary shutdown
of a "single site of employment" that results in 50 or more
employees losing employment during any 30-day period. 29 U.S.C. §
2101(a)(2). A "mass layoff" is a reduction in force which causes 50
or more employees at a "single site of employment," who comprise at
least one third of the total employees at that site, to lose
employment for any 30-day period. 29 U.S.C. § 2101(a)(3). An
employer who fails to give the required notice is liable to its
employees for their average salaries and benefits for each day of
violation. 29 U.S.C. 2104(a)(1). The outcome of this case turns on
the meaning of "single site of employment."
The Act does not define "single site of employment," but the
Department of Labor has adopted regulations that offer guidance.
The parties identify the following:
(1) A single site of employment can refer to either a
single location or a group of contiguous locations.
Groups of structures which form a campus or industrial
park, or separate facilities across the street from one
another, may be considered a single site of employment.
(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 reasonable
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 a
town and which are managed by a single employer are
separate sites if they employ different workers.
(6) For workers whose primary duties require travel from
point to point, who are outstationed, or whose primary
duties involve work outside any of the employer's regular
employment sites (e.g., railroad workers, bus drivers,
salespersons), the single site of employment to which
they are assigned as their home base, from which their
work is assigned, or to which they report will be the
single site in which they are covered for WARN purposes.
(8) The term “single site of employment” may also apply
to truly unusual organizational situations where the
above criteria do not reasonably apply. The application
of this definition with the intent to evade the purpose
of the Act to provide notice is not acceptable.
29 CFR 639.3(i).
The Fifth Circuit instructs 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 'reasonable geographic proximity of one another';
2) they are 'used for the same purpose'; 3) and they 'share the
same staff and equipment.'" Viator v. Delchamps Inc., 109 F.3d
1124, 1127 (5 Cir. 1997).
The sole question before the Court is whether Axxis' five
drilling rigs together with its Houma office constitute a "single
site of employment" under the WARN Act. If the office and each rig
are separate sites, the plaintiffs' claims fail because Axxis did
not lay off 50 employees from any individual site. The plaintiffs
contend that the Axxis office and the adjacent dock and warehouses
comprise a single site of employment under subparts 1 and 3 of the
regulations. Because the dock is a part of the Axxis office, the
plaintiffs surmise that, when a rig is stacked at the dock, it too
becomes part of the single site. The Court disagrees.
The plaintiffs urge the Court to find that the rigs and the
Axxis office form a single site of employment because they are
occasionally in close proximity to one another. The plaintiffs
submit evidence showing that at least one rig was stacked at the
dock in Houma for 297 days in 2014. Yet, geographic proximity is
only one of three essential factors for separate facilities to be
treated as a single site of employment. The plaintiffs fail to
satisfy the remaining factors.
Plaintiffs offer testimony of the operations manager, Lester
Guilbeau, in which he was asked the following series of questions:
So on the occasions when rigs were tied up in the back of
the shop in Houma, and whether they stayed two weeks or
two months, would Axxis still keep the crews employed and
have them come to the rigs and do maintenance work and
keep everything running?
And so for those periods of time, the employees would
actually drive to the office in Houma, park their cars,
and go get on the rig?
And they would eat and sleep and stay on the rig while
it's tied up to the dock in Houma?
This testimony confirms that the rigs maintained their independent
facilities and the Axxis office were not "used for the same
purpose." Nor did the office "share the same staff and equipment"
with the rigs. The rigs were separate facilities that functioned
independently from each other and the office, and each rig had its
own employees who reported for duty to wherever the rig was
employment for such employees is either: 1) the site of their home
base; 2) the site from where their work is assigned; or 3) the site
where they report to work.
The plaintiffs rely on the Sixth Circuit case, Wiltz v. M/G
Transport Services,128 F.3d 957, 961 (6 Cir. 1997). There, the
court held that a fleet of towboats used to transport barges by
river from New Orleans to Pittsburgh were all part of a single site
of employment based at their home office in Kentucky. The Sixth
Circuit found that "towboats are like planes, buses, and railroads
and all are not more than tools of 'workers whose primary duties
require travel from point to point.'" Id. The court reasoned that
subpart (6) of the regulations applied because, like railroad
workers, bus drivers, and salesman, the towboat operators used
moving vehicles to carry out the business of their employer, i.e.,
moving cargo for customers. Id. at 961-62. The facts on this record
Unlike planes, buses, trains, and towboats, the purpose of a
drilling rig is not to move people or cargo from point to point.
Axxis' rigs were not even self-propelled. The rig employees only
traveled to and from the oil rigs. They reported to their assigned
rig for their shifts and drove their vehicles from the designated
dock to their homes when their shifts were over. The rig employees
only reported for work at the Houma office if their assigned rig
was temporarily stacked there. Even then, the rig manager assigned
work to the rig employees, all of whom continued to live and sleep
on the rig. While the rig managers and drillers communicated
frequently with the operations manager at the Houma office, the
evidence shows that daily work assignments for the rig employees
were delegated onboard the rig. Subpart (6) of the regulations does
not govern the plaintiffs' claims. There are no material issues of
fact in dispute, in this record.
Each Axxis rig was a "single site of employment" under the
WARN Act. Because Axxis did not lay off 50 employees from any
single site of employment, the plaintiffs' claims fail.
Accordingly, the defendants' motion for summary judgment is
New Orleans, Louisiana, October 21, 2015
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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