# Roberts v. Genting New York LLC

> District Court, E.D. New York · March 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10305846

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305846

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- x
GERALD ROBERTS, STEPHEN JOHNSON, :
CHRISTOPHER MCLEOD, DAVID SHAW, ANITA :
JOHNSON, CHRISTOPHER HUMPHRIES, JEFFREY :
WILKINS, LATANYA MARTIN-RICE, LAURA : MEMORANDUM &
SANCHEZ, LUCY MUNOZ, NATALIO HERRERA, : ORDER
RADIKA KANHAI, ROGER SIERRA, YOO SUNG : 14-CV-257 (ILG) (VMS)
KIM, CHRISTINA LAMBRU, IRENE TSOROROS, :
MARIA DIAZ, CYNTHIA DURAN, JASPER JONES, :
ALLEN CHERFILS, LISA LUNDSREN, TERESA :
AREVALO, SYED A. HAQUE, AHMED TALHA, :
OLIE AHMED, JAMAL AHMED, SORWAR :
HUSSAIN, LUZ OSPINA, JOHNNY MURILLO, :
THOMAS DORGAN, SENECA SCOTT, ERIC LEE, :
WILLIAM BOONE, MARLENNI MINAYA, ISABEL :
PENA, CELESTE BROWN-POLITE, DWIGHT :
CURRY, RAWLO BENFIELD, JOSEPH BROWN, :
SANDRA MILENA-MARTINEZ, MARINO CANO, :
ABIGAIL APPIAH-OTCHERE, DALIA TOPPIN, ANA :
MOREIRA, BETSABE TORRES, LORNA BENT, :
OSMOND WALKER, CONRAD HALL, VISHWANI :
SUKHRAM, ANNE GRONATA, BRUCE SMITH, :
NESTOR AMAYA, GUIDO ANTONIO RODRIGUEZ, :
WILLIE BALLENTINE, PETER VONTAS, FELIX :
GONZALEZ, MICHELLE LATIMER, VARISE :
WALLER, SOOKIA FREEMAN, CAMARCA :
FLOWERS, ANTONIO SALCEDO, JOEVEN CORTEZ, :
and JUDITH ALLEN, on behalf of themselves and all :
others similarly situated, :
:
Plaintiffs, :
:
-against- :
:
GENTING NEW YORK LLC, d/b/a RESORTS :
WORLD CASINO NEW YORK CITY, :
:
Defendant. :
----------------------------------------------------------------------x
GLASSER, Senior United States District Judge:
On January 14, 2014, plaintiffs Gerald Roberts, Stephen Johnson, Christopher McLeod,
and David Shaw, on behalf of themselves and all others similarly situated, commenced this action
against defendant Genting New York LLC, d/b/a Resorts World Casino New York City (“Resorts
World”), alleging violations of the Worker Adjustment and Retraining Notification Act (“WARN
Act”), 29 U.S.C. §§ 2101, et seq., and New York Labor Law (“NYLL”) §§ 860, et seq. (“N.Y.
WARN Act”). Compl. ¶ 1, Dkt. 1. On March 17, 2014, plaintiffs filed an Amended Complaint,

adding 59 new plaintiffs. Am. Compl., Dkt. 5. Before the Court are the parties’ cross motions for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. 53, 61. For
the reasons set forth below, plaintiffs’ motion for summary judgment is DENIED and Resorts
World’s cross motion for summary judgment is GRANTED.
BACKGROUND
I. Statutory and Regulatory Framework

Congress enacted the federal WARN Act to protect workers, their families, and
communities by requiring employers to provide advance notice before plant closings and mass
layoffs. 20 C.F.R. § 639.1(a). Such advance notice “provides workers and their families some
transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs
and, if necessary, to enter skill training or retraining that will allow these workers to successfully
compete in the job market.” Id.; see Guippone v. BH S & B Holdings LLC, No. 09-CV-1029 (CM),
2010 WL 2077189, at *2 (S.D.N.Y. May 18, 2010), aff’d, 737 F.3d 221 (2d Cir. 2013).
A business enterprise with 100 or more full time employees qualifies as an “employer”
under the federal WARN Act. 29 U.S.C. § 2101(a)(1)(A). An employer must provide a 60-day
written notice to each affected employee or their representative before a plant closing or mass
layoff. 29 U.S.C. § 2102(a)(1). If an employer orders a plant closing or mass layoff without giving
the required notice, the employer is liable to each affected employee for back pay and benefits for
the period of the violation, up to a maximum of 60 days, but in no event for more than one-half
the number of days the employee was employed by the employer. 29 U.S.C. § 2104(a)(1). A
“plant closing” means “the permanent or temporary shutdown of a single site of employment, or
one or more facilities or operating units within a single site of employment, if the shutdown results
in an employment loss at the single site of employment during any 30-day period for 50 or more

employees excluding any part-time employees.” 29 U.S.C. § 2101(a)(2) (emphasis added).
The regulations define an “operating unit” for purposes of the WARN Act as “an
organizationally or operationally distinct product, operation, or specific work function within or
across facilities at a single site.” 20 C.F.R. § 639.3(j). The Department of Labor (“DOL”), when
promulgating these regulations, explained that “[t]he reason for the use of the term ‘operating unit’
in WARN is to apply the protections of the law to small units of workers in a larger plant when
their units are closed.” Analysis of Final Rule and Comments to Section 639.3(j), 54 Fed. Reg.
16051 (1989). Indeed, the DOL stated, “[i]t is not relevant to this purpose whether the workers
are production workers or support workers; their job loss and their need for protection is as real in
either case.” Id. The DOL further explained that “[t]he critical factor in determining what

constitutes an operating unit will be the organizational or operational structure of the single site of
employment” and that “[s]ources of evidence which will assist in defining separate and distinct
units will be applicable collective bargaining agreements, the employer’s organizational structure
and industry understandings of what constitutes distinct work functions.” 54 Fed. Reg. 16050.
The N.Y. WARN Act is similar to the federal WARN Act, with several key differences.
First, the N.Y. WARN Act “sets a lower trigger threshold for its protections.” 1199 SEIU United
Healthcare Workers E. v. S. Bronx Mental Health Council, Inc., No. 13-CV-2768 (JGK)(JCF),
2013 WL 6003731, at *2 (S.D.N.Y. Nov. 13, 2013), report and recommendation adopted, 2013
WL 6244716 (S.D.N.Y. Dec. 3, 2013). Specifically, an “employer” is defined as a business
enterprise with 50 or more full time employees, as opposed to 100 or more, and a “plant closing”
is defined as the permanent or temporary shutdown of a single site of employment, or one or more
facilities or operating units within a single site of employment, if the shutdown results in an
employment loss during any 30-day period for 25 or more full time employees, as opposed to 50

or more. NYLL § 860-a(3), (6). Next, the notification requirements under the N.Y. WARN Act
are stricter, requiring an employer to provide a 90-day written notice—as opposed to a 60-day
notice—to each affected employee and their representative before a plant closing or mass layoff.
NYLL § 860-b(1). “Given these stricter requirements, wherever there is liability under the federal
WARN Act, there is necessarily liability under the N.Y. WARN Act.” 1199 SEIU United
Healthcare Workers E., 2013 WL 6003731, at *2.
II. Facts and Procedural History1
Resorts World operates a casino in Queens, New York that offers thousands of games and
a variety of food and beverage options. Def.’s Rule 56.1 Statement of Undisputed Material Facts
(“SOF”) ¶¶ 1, 3, Dkt. 65; Pls.’ Response to Def.’s Rule 56.1 SOF ¶¶ 1, 3, Dkt. 68. In or around

July 2010, prior to the opening of the casino in 2011, the New York Hotel and Motel Trades
Council, AFL-CIO (the “Union”) began to organize Resorts World’s future non-management
employees. Def.’s Rule 56.1 SOF ¶ 7; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 7. In this regard,
the Union and Resorts World entered into a card check and neutrality agreement (the “Neutrality
Agreement”), which designated an “Interest Arbitrator” to preside over all matters between the
Union and Resorts World. Def.’s Rule 56.1 SOF ¶¶ 7–8; Pls.’ Response to Def.’s Rule 56.1 SOF
¶¶ 7–8; see Neutrality Agreement, Dkt. 63-2. On December 20, 2011, the Interest Arbitrator—the
Office of the Impartial Chairperson—certified that the Union had obtained a majority of the cards

1 Unless otherwise noted, plaintiffs do not dispute the facts as set forth in this section except to object as “not material.”
selecting the Union as the exclusive bargaining representative for all non-management job
classifications. Def.’s Rule 56.1 SOF ¶ 8; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 8; see
Certification of Card Count, Dkt. 63-3. Plaintiffs were members of the Union at all times relevant
to this action. See Def.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Def.’s Mem. of Law”) at

4, n.2, Dkt. 64.
On October 18, 2013, the Interest Arbitrator issued an award, which resolved certain
unsettled terms in the Collective Bargaining Agreement (“CBA”), including, as relevant here,
employee hourly and weekly wage rates, as well as a schedule of annual wage increases, and
increases in pension and health benefits and vacation, holiday, and sick leave. Def.’s Rule 56.1
SOF ¶ 9; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 9; see Interest Arbitration Award, Dkt. 63-4,
63-5, 63-6. This Interest Arbitration Award, which became effective immediately, “nearly
doubled employee wages for Union members, and increased Union members’ health and pension
benefits by more than 20 percent.” Def.’s Rule 56.1 SOF ¶ 10; Pls.’ Response to Def.’s Rule 56.1
SOF ¶ 10. Resorts World claims that it was forced to mitigate “the extraordinary impact” of the

Interest Arbitration Award by, among other things, reducing the workforce. Def.’s Rule 56.1 SOF
¶ 12; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 12.
Furthermore, Resorts World claims that, from approximately November 2013 through the
first week of January 2014, it had negotiated with the Union in meetings and by email concerning
proposed non-management layoffs. Def.’s Rule 56.1 SOF ¶¶ 14–15; see Emails, Dkt. 63-7.
Plaintiffs counter that the proposed “layoffs were more of a decree by [Resorts World] which the
Union had no choice but to agree with in significant portion.” Pls.’ Response to Def.’s Rule 56.1
SOF ¶¶ 14–15.
On January 6, 2014, Resorts World closed the Aqueduct Buffet—one of the food outlets at
the casino—and terminated approximately 177 employees, including cooks, food servers, food
runners, bussers, hosts, cashiers, warehouse attendants, and stewards. Def.’s Rule 56.1 SOF ¶ 18;
Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 18; Pls.’ Rule 56.1 SOF ¶ 1, Dkt. 56; Def.’s Response

to Pls.’ Rule 56.1 SOF ¶ 1, Dkt. 59; see Not. of Layoffs dated Jan. 6, 2014 & FAQ, Dkt. 63-8; List
of Layoffs, Dkt. 63-9. Resorts World contends that, “at the time they were laid off, some of the
affected employees were working in the Aqueduct Buffet, while others were working in other
outlets/departments of Resorts World, such as the Stewarding department, the Cold Kitchen and
the Warehouse.” Def.’s Rule 56.1 SOF ¶ 19; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 19. “In
fact,” Resorts World asserts, “nearly half (71) of the affected employees did not work in the
Aqueduct Buffet either exclusively, consistently or at all.” Def.’s Rule 56.1 SOF ¶ 19 (emphasis
omitted); Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 19. Laid-off employees received “Regular
Severance,” as well as other required payments, and approximately 20 laid-off employees received
“Enhanced Severance,” which included a waiver of claims against Resorts World. Def.’s Rule

56.1 SOF ¶ 20; Pls.’ Response to Def.’s Rule 56.1 SOF ¶ 20 (disputing, among other things, that
the exchange included a general waiver); see CBA, Dkt. 63-10; Severance Info., Dkt. 63-11.
Plaintiffs brought the instant action, asserting that they did not receive advance notice of
the closure in violation of the federal WARN Act and N.Y. WARN Act. Am. Compl. ¶¶ 160–65.
On February 16, 2016, the parties filed their cross motions for summary judgment. Not. of Pls.’
Mot. for Summ. J., Dkt 53; Pls.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.’ Mem. of
Law”), Dkt. 55; Not. of Def.’s Mot. for Summ. J., Dkt. 61; Def.’s Mem. of Law.2 On December

2 On February 21, 2018, the case was reassigned from U.S. Senior District Judge Sandra L. Townes to the
undersigned.
11, 2020, the Court heard oral argument on the cross motions and reserved decision. Min. Entry
dated Dec. 11, 2020, Dkt. 75.
DISCUSSION
I. Legal Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted); see Fed. R. Civ. P.
56; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). “An
issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material when it “might affect the
outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 248).
If the movant satisfies its initial burden of production, the burden of proof shifts to the non-

moving party, who “must come forward with specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587 (internal quotation marks, emphasis,
and citation omitted). Once the non-movant has met that requirement, its “allegations [will be]
taken as true, and [it] will receive the benefit of the doubt when [its] assertions conflict with those
of the movant.” Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996) (internal quotation marks and
citation omitted).
The Court’s role in a motion for summary judgment is one of “issue-finding,” not “issue-
resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
“In determining whether summary judgment is appropriate, this Court will construe the facts in
the light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(internal quotation marks and citation omitted). “The same standard[s] appl[y] where, as here, the
parties file[] cross-motions for summary judgment.” Morales v. Quintel Entm’t, Inc., 249 F.3d

115, 121 (2d Cir. 2001). “[W]hen both parties move for summary judgment, asserting the absence
of any genuine issue[] of material fact, a court need not enter judgment for either party.” Id.
“Rather, each party’s motion must be examined on its own merits, and in each case all reasonable
inferences must be drawn against the party whose motion is under consideration.” Id.
II. The Aqueduct Buffet was not an operating unit.

Plaintiffs argue that, because the closure of the Aqueduct Buffet qualifies as a “plant
closing” under the federal WARN Act and N.Y. WARN Act, Resorts World was required to send
an advance notice of the closure to plaintiffs. Pls.’ Mem. of Law at 4–6. A “plant closing,” as
stated above, is defined as “the permanent or temporary shutdown of a single site of employment,
or one or more facilities or operating units within a single site of employment.” 29 U.S.C. §
2101(a)(2) (emphasis added); NYLL § 860-a(6). The main issue in the cross motions for summary
judgment is whether the Aqueduct Buffet was an “operating unit” under the federal WARN Act
and the N.Y. WARN Act. The Court agrees with Resorts World that the Aqueduct Buffet was not
an operating unit.3

3 Because the Court agrees with Resorts World that the Aqueduct Buffet was not an operating unit, the Court need
not address Resorts World’s alternative arguments as to waiver or estoppel. Def.’s Mem. of Law at 19–24. Moreover,
the Court rejects plaintiffs’ alternative argument that the Aqueduct Buffet was a single site of employment. See Pls.’
Mem. of Law at 6–7.
A. The Aqueduct Buffet was not operationally separate and distinct.
The record evidence in this case—including the CBA, the deposition transcript of Robert
Netter, and the deposition transcript and affidavit of Ryan Eller—show that there is no genuine
issue of fact that the Aqueduct Buffet was not operationally separate and distinct from the rest of

the casino. Def.’s Mem. of Law at 8–10; see CBA, Dkt. 63-10; Job Descriptions, Dkt. 63-13; see
also Netter Dep. Tr., Dkt. 62-4; Eller Dep. Tr. Dkt. 62-9, 62-10, 62-11; Eller Aff., Dkt. 63.4 As
Resorts World points out, the CBA does not identify the Aqueduct Buffet, or any other food outlet,
as a separate department, division, or unit in the casino. Rather, the CBA sets forth the same job
descriptions, salary and benefit structure, policies, and terms of employment for cooks, food
servers, food runners, bussers, hosts, cashiers, stewards, and warehouse attendants, regardless of
the food outlet. Many of these workers rotated among the various food outlets in the casino.
Indeed, Mr. Netter testified during his deposition that stewards, who were responsible for cleaning
and maintaining the entire facility, reported to the same shift manager on a given shift and regularly
rotated throughout the facility pursuant to a schedule. Netter Dep. Tr. at 39:3–41:9, 95:4-14; see

Eller Aff. ¶ 19. Mr. Netter further testified that all sous chefs used the same culinary manual, “no
matter where [they] work[ed]” in the building, and that sous chefs, along with managers, would
fill in at other food outlets as needed, such as when there were call-outs during a particular shift.
Netter Dep. Tr. at 24:7-14, 26:2-19, 50:12–52:14. As for executive sous chefs, Mr. Netter testified
that they managed the kitchens, “help[ing] each other everywhere . . . . rotating all day long,
walking through different kitchens.” Netter Dep. Tr. at 81:22–82:25. Moreover, Mr. Netter
testified that cashiers, servers, and culinary staff would fill in, as needed, at the other buffet located

4 At the time the briefs were submitted in 2016, Robert Netter was the vice president of Food and Beverage at Resorts
World and Ryan Eller was the president of Resorts World.
in the facility and could sign up to work at special events that took place throughout the facility.
Netter Dep. Tr. at 118:16–119:4, 119:11-24, 121:21–122:5.
Resorts World also submits the deposition transcripts of plaintiffs Radika Kanhai, Eric Lee,
and Christopher McLeod as evidence that the Aqueduct Buffet was not operationally separate and

distinct. Kanhai Dep. Tr., 62-5; Lee Dep. Tr., Dkt. 62-6; McLeod Dep. Tr., Dkt. 62-7. For
example, Mr. Lee testified that he had applied for a position in the Food and Beverage Department
of Resorts World and did not know which food outlet he would be assigned to until his start date.
Lee Dep. Tr. at 16:5–17:3. He further testified that, after he began working at the Aqueduct Buffet,
he was sometimes assigned to work in different food outlets depending on need. Lee Dep. Tr. at
41:22–43:6.
Next, the evidence shows that the Aqueduct Buffet was dependent on the casino’s
centralized services. According to Mr. Netter and Mr. Eller, employees working in the cold
kitchen, known in the industry as the “Garde Manger,” prepared and delivered vegetables, salads,
cold cuts, sushi, and pizza dough to all of the food outlets, including the Aqueduct Buffet. Eller

Aff. ¶ 16; Netter Dep. Tr. at 55:8–59:22. Indeed, Mr. Eller emphasized, “the Aqueduct Buffet did
not function without the Garde Manger.” Eller Aff. ¶ 16. Additionally, common recipes were
used across all food and beverage outlets and many similar or identical items were available across
several outlets. Eller Aff. ¶ 23; Netter Dep. Tr. at 134:17–136:8. For example, the pizza available
at the Aqueduct Buffet was the same as the pizza offered at another food outlet. Netter Dep. Tr.
at 142:2-5.
The Aqueduct Buffet also did not purchase its own food; rather, food was purchased
through Resorts World’s central purchasing department and was stored in a centralized warehouse.
Eller Aff. ¶¶ 17–18; Netter Dep. Tr. at 20:25–22:4, 22:22–23:2. Mr. Eller explained that “[t]he
Purchasing department acted as the centralized purchasing unit for everything needed to operate
Resorts World (not just food items), from paper clips, to furniture, to butter” and that “[t]he
employees in the Purchasing department determined what items were needed for the entire facility
and set re-ordering levels for those items.” Eller Aff. ¶ 17. Personnel in all areas of the casino

“requested stored items through Resorts World’s central Ariba System, and Warehouse personnel
would deliver such items, as needed.” Eller Aff. ¶ 18. Mr. Eller also explained that the Aqueduct
Buffet relied on centralized services from the Environmental Services Department, marketing,
human resources, legal, and payroll. Eller Aff. ¶¶ 20–21. Marketing efforts, for example, included
providing coupons to patrons for any of the food outlets or for one specific food outlet when they
spent a certain amount of money in the casino. Eller Aff. ¶ 21; Netter Dep. Tr. at 140:3-23.
Plaintiffs, relying on the same or similar evidence as Resorts World, emphasize that the
Aqueduct Buffet was operationally separate and distinct because (1) it was physically separate
from the other food venues, as it had its own seating area and customers were required to enter
through a cashier line and pay prior to entry; (2) it was advertised as a separate experience; and (3)

it offered different products and services from the other venues. Pls.’ Mem. of Law at 6; Pls.’
Mem. in Opp. to Def.’s Mot. for Summ. J. (“Pls.’ Mem. in Opp.”) at 4, Dkt. 67; see Netter Dep.
Tr. at 12:7–14:3, 140:24–144:21, 147:12–148:25; Advertisements, Dkt. 54-7, 54-8, 54-9, 54-10;
Def.’s Response to Pls.’ Requests for Admission at 3, Dkt. 54-2 (“Response to Request No. 3 . . .
Without waiving the foregoing objection and subject thereto, as well as the General Objections set
forth above, Defendant admits that the buffet had its own seating area . . .”). Plaintiffs further
point out, among other things, that the Aqueduct Buffet had its own schedule and employees who
worked there regularly, absent a special circumstance; most of its food items were prepared in its
own kitchen; the costs of labor and a majority of the food costs were recorded and attributed to the
Aqueduct Buffet using a cost center; and its employees had uniforms that were distinct from those
used at other food venues. Netter Dep. Tr. at 53:22–55:25, 72:2–73:23, 121:6-20, 131:13–133-2,
145:8-25; Eller Dep. Tr. at 84:11–85:2. However, as Resorts World argues, see Def.’s Reply at
5–6, Dkt. 71, some of these allegations are misleading and/or unsupported by the record. For

example, although plaintiffs assert that the Aqueduct Buffet was physically separate from the rest
of the casino, it should be noted that it was “open air” and not walled-off. Netter Dep. Tr. at
147:15-23. As for cost centers, Mr. Eller emphasized that “Resorts World did not prepare financial
statements that included all of the operating expenses, including allocations of shared costs, for
the Aqueduct Buffet” and that Resorts World instead had “a centralized accounting and finance
department which record[ed] and report[ed] financial information for direct costs incurred in the
Food and Beverage department on an overall summary basis.” Eller Aff. ¶ 33. Furthermore, the
uniforms worn by employees working in the Aqueduct Buffet were not entirely distinct. Cooks,
stewards, and hosts wore the same uniform across all the food venues, and servers, bus persons,
and cashiers wore the same uniform used in the other buffet. Netter Dep. Tr. at 131:19–132:19.

Moreover, plaintiffs’ proffered facts fail to dispute the CBA’s provisions with respect to
common job descriptions, training, hiring practices, and policies for all non-managerial employees.
Plaintiffs argue that no legal authority supports the conclusion that these provisions “would be
dispositive” on the issue of whether the Aqueduct Buffet was a separate and distinct unit. Pls.’
Mem. in Opp. at 5. However, Resorts World never argued that the CBA is dispositive, but that it
is a “[s]ource[] of evidence [that] assists in defining separate and distinct units.” Def.’s Reply at
2 (quoting 54 Fed. Reg. 16050). Plaintiffs’ proffered facts also fail to dispute the evidence that
the Aqueduct Buffet was dependent on Resorts World’s centralized services for, among other
things, recipes, ingredients, supplies, storage, cleaning, human resources, legal issues, payroll, and
insurance and accounts payable. The Court rejects plaintiffs’ argument that “there is absolutely
no legal authority” that centralized services affect the definition of an operating unit. Pls.’ Mem.
in Opp. at 6. The DOL clearly stated that “[t]he critical factor in determining what constitutes an
operating unit will be the organizational or operational structure of the single site of employment.”

54 Fed. Reg. 16050. Therefore, the facts proffered by Resorts World with respect to centralized
services are not only relevant but critical to the determination of whether the Aqueduct Buffet was
a separate and distinct unit.
B. The Aqueduct Buffet was not organizationally separate and distinct.
The record evidence shows that there is no genuine issue of fact that the Aqueduct Buffet
was not organizationally separate and distinct. Resorts World relies upon organizational charts to
show that the Food and Beverage Department had a common management structure that included
all of the food outlets. Def.’s Mem. of Law at 12–13; see Eller Aff. ¶¶ 25–26; Organizational
Charts, Dkt. 63-1; Malmlund Expert Report at 11, Dkt. 62-3. In particular, the charts show that
all food outlets, including the Aqueduct Buffet, were managed by the Executive Chef and Assistant

Director of the Food and Beverage Department. See Organizational Charts. The Executive Chef
and Assistant Director both reported to the Director of Food and Beverage, who, in turn, reported
to the Vice President of Food and Beverage. Id. The Vice President then reported to the Chief
Operating Officer of Resorts World, who, in turn, reported to the President of Resorts World.
Malmlund Expert Report at 11. Mr. Netter specifically testified that the Executive Chef oversaw
all the food outlets and determined what food would be served at each outlet. Netter. Dep. Tr. at
74:3-10.
Plaintiffs, however, argue that the Aqueduct Buffet had its own manager and shift
managers, which supports the finding that the Aqueduct Buffet was an operating unit. Pls. Mem.
of Law at 6; Pls.’ Mem. in Opp. at 7; see Netter Dep. Tr. at 23:9-19. In making this argument,
plaintiffs rely on Pavao v. Brown & Sharpe Mfg. Co., 844 F. Supp. 890 (D.R.I. 1994). In that
case, the district court held that the Consolidated Parts Department, as part of the Company’s
Measuring Systems Division, was an operating unit within the meaning of the WARN Act because

it “had its own managers, its own separate budget (along with a separate ‘cost center’ accounting
number), and its own separate workforce.” Pavao, 844 F. Supp. at 895. Here, on the other hand,
the record evidence demonstrates the Food and Beverage Department had a centralized
management structure, in which the Executive Chef and Assistant Director oversaw all the food
outlets, the executive sous chefs rotated among all the kitchens, stewards reported to one manager
who oversaw all the outlets, and managers would fill in at different food outlets, as needed. Eller
Aff. ¶ 26; see Organizational Charts; Netter Dep. Tr. at 81:22–82:25, 95:4-14. There was also a
single beverage manager, who ordered “all the beverage that comes into the central warehouse for
distribution to all outlets.” Netter Dep. Tr. at 92:7-9. Finally, as stated above, Resorts World did
not track all costs associated with the Aqueduct Buffet, and many workers rotated among the

various food outlets, either regularly or as needed. Eller Aff. ¶¶ 26, 33.
C. The Office of the Impartial Chairperson determined in November 2015 that the Aqueduct
Buffet was not a separate and distinct department for the purpose of classification seniority.

In addition to the evidence described above, Resorts World relies upon a November 2015
decision by the Office of the Impartial Chairperson to support its argument that the Aqueduct
Buffet was not an operating unit. Def.’s Mem. of Law at 13–15; see Impartial Chairperson Dec.
dated Nov. 24, 2015, Dkt. 62-8.5

5 The Office of the Impartial Chairperson is the same arbitrator who issued the Interest Arbitration Award in October
2013.
As set forth in the decision, the Union had filed two grievances, seeking a “make whole
remedy for [Resorts World’s] failure to apply classification seniority throughout its food and
beverage operations in effectuating the layoffs” on January 6, 2014 in relation to the closure of the
Aqueduct Buffet and for Resorts World’s failure “to properly classify Bus Persons to enable them

to share in tips.” Impartial Chairperson Dec. at 2 (internal quotation marks omitted). The Union
argued that, pursuant to the CBA, certain employees laid off on January 6 should have been entitled
to “bump” a less senior employee in the same job classification working for the Food and Beverage
Department. Id. at 11. Instead, the Union argued, Resorts World improperly “laid off all the [Food
and Beverage] employees who worked in the Buffet, including Host/Hostesses and Servers who
had more classification seniority than Host/Hostesses and Servers” who worked in other food
outlets within the casino, such as RW Prime and Genting Palace. Id. The Union asserted that each
food outlet was not a separate department for the purposes of classification seniority because
[a]ll outlet managers reported to the [Food and Beverage (“F&B”)]
Director. Each newly hired F&B employee received the same initial
customer service training and were subject to the same policies and
procedures regardless of which outlet they worked in. Buffet
Host/Hostesses and Servers were also paid the same rate of pay as
Host/Hostesses and Servers who worked in the other F&B outlets.

Id. The Union further asserted that hosts and servers working the buffet rotated among the food
outlets as needed and performed similar job duties as those who worked in other food outlets. Id.
at 9–10.
The Office of the Impartial Chairperson agreed with the Union that Resorts World operated
a centralized Food and Beverage Department. Id. at 17. Specifically, the Impartial Chairperson
found that “the term ‘department’ means a ‘food and beverage department’” and that “where jobs
from one outlet to another are, in the overwhelming main, vastly similar or fungible so as to require
little or no training, classification seniority must be given effect.” Id. Thus, the Impartial
Chairperson held, “a more senior buffet host may bump a host in another outlet” because all food
outlets operated under the same Food and Beverage Department. Id.
Plaintiffs argue that Resorts World’s “attempts to equate an arbitrator’s determination that
the word ‘department’ in the [CBA] is the same as the term ‘operating unit’ in the WARN Act and

NY WARN Act fail[] entirely because they are comparing two different terms used in different
contexts.” Pls.’ Mem. in Opp. at 7. Resorts World, in turn, argues that the Impartial Chairperson’s
factual finding that the Aqueduct Buffet was not a separate and distinct department “should be
given great deference.” Def.’s Mem. of Law at 15. In making this argument, Resorts World cites
to a number of cases in which the court, in its review of an arbitration award, was required to grant
deference to the arbitration panel’s decision. See, e.g., Wallace v. Buttar, 378 F.3d 182, 189 (2d
Cir. 2004); Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir. 2002).
Here, however, the Court has not been asked to review or vacate the November 2015
decision. The decision, at most, represents persuasive authority. The Court considers it as much,
particularly since the Impartial Chairperson relied on many of the same factual considerations in

making his determination that are relevant to the analysis in this case. Moreover, in any event, the
record evidence described in the above sections is sufficient on its own to show that the Aqueduct
Buffet was not an operating unit.
D. Resorts World’s expert opines that the Aqueduct Buffet was not an operating unit
according to accepted business practices.

Finally, Resorts World proffers the expert opinion of Bjorn Malmlund, a partner in the
Fraud Investigation and Dispute Services Practice at Ernst & Young LLP, to support its argument
that the Aqueduct Buffet is not an operating unit according to accepted business practices. Def.’s
Mem. of Law at 15–18; see Malmlund Expert Report. Plaintiffs, in turn, argue that the Court
should reject Mr. Malmlund’s expert report because (1) this is the first time Mr. Malmlund has
ever offered his opinion on the definition of an “operating unit” under the WARN Act; (2) Mr.
Malmlund’s opinion is not based on reliable principles and methods; and (3) the report is unsworn.
Pls.’ Mem. in Opp. at 8–10.
Under Rule 702 of the Federal Rules of Evidence, an expert witness, unlike a lay witness,

is “permitted wide latitude to offer opinions, including those that are not based on firsthand
knowledge or observation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993).
“Under Daubert, the district court functions as the gatekeeper for expert testimony, whether
proffered at trial or in connection with a motion for summary judgment.” Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (internal quotations marks and
citations omitted). A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if it: (1) will assist the
trier of fact to understand the evidence or determine a fact in issue; (2) is based on sufficient facts
or data; (3) is the product of reliable principles and methods; and (4) is the product of a reliable
application of the expert’s principles and methods to the facts of the case. See Fed. R. Evid. 702.

“The proponent of the expert testimony bears the burden of establishing the admissibility of such
testimony under the Daubert framework by a preponderance of the evidence.” Bee v. Novartis
Pharm. Corp., 18 F. Supp. 3d 268, 299–300 (E.D.N.Y. 2014).
“To gauge the reliability of proffered testimony, ‘the district court should consider the
indicia of reliability identified in Rule 702,’ which are not exhaustive.” United States v Raniere,
2019 WL 2212639, at *5 (E.D.N.Y May 22, 2019) (quoting Wills v. Amerada Hess Corp., 379
F.3d 32, 48 (2d Cir. 2004)). The court may also consider four additional factors identified in
Daubert, including: (1) whether the expert’s technique or theory can be or has been tested; (2)
whether it has been subjected to peer review and publication; (3) whether there is a high error rate
for the expert’s technique, and whether there are “standards controlling the technique’s operation”;
and (4) whether the expert’s technique or theory is generally accepted by the relevant scientific
community. Daubert, 509 U.S. at 592–94. The “court’s inquiry into the reliability of expert
testimony is ‘flexible,’” and the Daubert factors are not dispositive. Raniere, 2019 WL 2212639,

at *5 (quoting Daubert, 509 U.S. at 593–94). Indeed, the Supreme Court clarified in a later case
that the Daubert factors do not apply neatly to all expert evidence, especially evidence that is not
of the scientific nature found in Daubert. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147–49 (1999). Likewise, “[t]he Second Circuit’s standard for admissibility of expert testimony
is especially broad.” United States v. Herron, 2014 WL 1871909, at *6 (E.D.N.Y. May 8, 2014)
(internal quotation marks and citation omitted).
An expert can provide reliable testimony by, among other things, “citing to reports,
providing in-depth analysis of the facts, providing peer reviewed data, and explaining the basis for
[their] conclusions.” Fuentes v. Scag Power Equip. - Div. of Metalcraft of Mayville, Inc., No. 17-
CV-825 (DRH)(AKT), 2019 WL 3804735, at *5 (E.D.N.Y. Aug. 13, 2019), appeal dismissed

(Dec. 27, 2019). “An otherwise well-credentialed expert’s opinion may be subject to
disqualification if [they] fail[] to employ investigative techniques or cannot explain the technical
basis for [their] opinion.” Dreyer v. Ryder Auto. Carrier Grp., Inc., 367 F. Supp. 2d 413, 416–17
(W.D.N.Y. 2005).
Here, Mr. Malmlund admits that this is the first time he has offered his opinion on the
definition of an operating unit under the WARN Act. Malmlund Dep. Tr. at 50:6-15, Dkt. 70-2.
Nevertheless, the report states Mr. Malmlund is a Certified Public Accountant and is certified in
financial forensics and accredited in business valuation by the American Institute of Certified
Public Accountants. Malmlund Expert Report at 2. He has “over 27 years of experience providing
accounting and auditing services, and assisting companies with complex accounting, economic,
financial and dispute-related issues.” Id. “[W]here an expert possesses qualifications in a general
field closely related to the subject matter in question, the court will not exclude the testimony
solely on the ground that the witness lacks expertise in the specialized areas that are directly

pertinent.” Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 236 (E.D.N.Y. 2014) (internal
quotation marks and citation omitted). Having considered Mr. Malmlund’s qualifications, the
Court finds that it is not necessary that he have prior experience in cases involving the WARN Act
in order to opine on the definition of an operating unit. The Court thus concludes that he is
qualified to testify in this case.
As for the reliability of Mr. Malmlund’s methodology, the Court notes that Mr. Malmlund,
after reciting the DOL’s definition of an “operating unit” for purposes of the WARN Act, listed
the following three dictionary definitions of an “operating unit” that are commonly used and
generally accepted from an accounting/operational perspective:
A subsidiary that engages in business with other parties. That is, an
operating unit has its own assets and liabilities and functions as if it
were an independent company; the only difference is that it is owned
by another company. An operating unit is useful for the profit it can
produce.

A subsidiary of a corporation that operates as if it were an
independent company. An operating unit has its own assets and
liabilities and its own management structure.

[A] [s]ubsidiary of any corporation that is run like an independent
company. An operating unit has its own structures, assets and
liabilities, distinct from those of the parent corporation.

Malmlund Expert Report at 8.6 Thereafter, based on his knowledge and experience, he listed a
number of factors that are typically considered in the determination of an operationally or

6 These three definitions were taken from the Farlex Financial Dictionary, BusinessDictionary.com, and Black’s Law
Dictionary, respectively.
financially independent operating unit according to business evaluation and accounting practices.
Id. at 8–9. He did not define the terms “product,” “operation,” or “specific work function” as used
in the regulations. Malmlund Dep. Tr. at 69:4–70:12. He testified during his deposition that he
did not know whether there was a specific definition of “operating unit” used by accountants, but

that accountants frequently must review information on operating units for financial reporting
purposes. Malmlund Dep. Tr. at 82:17–84:12, 120:14–121:11. He further testified that he did not
believe there was any other authority, textbook, or regular accounting practice that he could have
used to assist him in his analysis. Malmlund Dep. Tr. at 122:25–123:24.
In short, Mr. Malmlund relied on his knowledge and over 27 years of experience in
accounting in his analysis of whether the Aqueduct Buffet was an operating unit. Malmlund Dep.
Tr. at 114:14–115:21. Although he did not set forth definitions for certain terms or explain
specifically how he came up with the factors that he listed, it is clear, based on Exhibit B to the
report and his deposition testimony, that he heavily relied on his review of the record evidence,
interviews with various Resorts World employees, and a tour of the facility in coming to his

conclusions. See Exhibit B to Malmlund Expert Report. The Court finds that Mr. Malmlund’s
report is not, as plaintiffs assert, too unreliable to be considered. Accordingly, the Court will
consider this report in support of Resorts World’s argument that the Aqueduct Buffet is not an
operating unit.7

7 Plaintiffs also argue that Mr. Malmlund’s expert report must be excluded because it is unsworn. “Courts in this
Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed. R. Civ.
P. 56(e), and cannot be used to defeat a summary judgment motion without additional affidavit support.” Berk v. St.
Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 352 (S.D.N.Y. 2005). Here, because Mr. Malmlund submitted an
affidavit and was deposed about his qualifications and the substance of his report, see Malmlund Aff., Dkt. 70;
Malmlund Expert Report, Dkt. 70-2, the Court does not reject the expert report on the basis that it is unsworn. See
Philadelphia Indem. Ins. Co. v. Streb, Inc., No. 19-CV-366 (KPF), 2020 WL 5549316, at *4 n.4 (S.D.N.Y. Sept. 16,
2020).
CONCLUSION
Based on its review of the pleadings and the record evidence described above, the Court
concludes Resorts World has sufficiently proven that the Aqueduct Buffet was not an operating
unit under the federal WARN Act and N.Y. WARN Act. Plaintiffs have failed to come forward

with specific facts showing that there is a genuine issue for trial. Therefore, plaintiffs’ motion for
summary judgment is DENIED and Resorts World’s cross motion for summary judgment is
GRANTED, dismissing the Amended Complaint. The Clerk of the Court is directed to enter
judgment and close the case.

SO ORDERED.
/s/
I. Leo Glasser, U.S.D.J.

Brooklyn, New York
March 12, 2021

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305846. Public record. Not legal advice.