PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RONALDA MESON,
Plaintiff-Appellant,
v.
GATX TECHNOLOGY SERVICES
CORPORATION; GATX FINANCIAL
CORPORATION, No. 06-1942
Defendants-Appellees,
and
EPLUS GROUP, INCORPORATED,
Party in Interest.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:04-cv-03806-DKC)
Argued: September 25, 2007
Decided: November 16, 2007
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and
T. S. ELLIS, III, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Chief Judge Williams and Senior Judge Ellis concurred.
COUNSEL
ARGUED: James Earl McCollum, Jr., College Park, Maryland, for
Appellant. Robert J. Kriss, MAYER BROWN, L.L.P., Chicago, Illi-
2 MESON v. GATX TECHNOLOGY SERVICES
nois, for Appellees. ON BRIEF: Michael E. Geltner, GELTNER &
ASSOCIATES, P.C., Washington, D.C., for Appellant. Lauren R.
Noll, MAYER BROWN, L.L.P., Chicago, Illinois, for Appellees.
OPINION
DUNCAN, Circuit Judge:
Ronalda Meson ("Meson") was employed as a regional sales man-
ager and sales representative with GATX Technology Services Cor-
poration ("GTS"), a corporation specializing in leasing information-
technology equipment. Her employment with GTS ended in June
2004 when the corporation’s assets were sold. Shortly thereafter,
Meson filed a complaint against her former employer and its parent
corporation, GATX Financial Corporation (collectively, "GATX"),
alleging seven claims stemming from her termination. Meson subse-
quently consented to the dismissal of three of these claims, and
GATX moved for summary judgment on the remaining four. The dis-
trict court granted GATX’s motion and entered final judgment in its
favor on all counts. Meson appeals the court’s judgment on her claims
for breach of contract; violation of the Maryland Wage Payment and
Collection Law, Md. Code Ann., Lab. & Empl., §§ 3-505, 3-507.1
("Maryland Wage Law"); and violation of the federal Work Adjust-
ment and Retraining Notification Act ("WARN Act" or "the Act"), 29
U.S.C. § 2101 et seq. For the reasons that follow, we affirm.
I.
Meson began working for GTS when it purchased the lease portfo-
lio of her former employer, El Camino Resources, Ltd., in 2001.
Meson was an at-will employee. She managed two employees at her
small GTS office in Falls Church, Virginia, but her duties involved
significant travel. In her role as regional manager, Meson reported to
GTS’s Tampa, Florida headquarters.
As a sales representative, Meson had the opportunity to earn com-
missions, in addition to receiving her base pay and management com-
pensation. Under GTS’s Sales Commission Plans ("Plans"),1 a sales
1
Three Commission Plans were issued during Meson’s tenure. The
parties concede that the Plans do not meaningfully differ for purposes of
MESON v. GATX TECHNOLOGY SERVICES 3
representative could earn Gross Margin Commissions by arranging
and completing Gross Margin Commission Events ("Commission
Events") on the leases in her portfolio. Commission Events consisted
of various transactions that resulted in the generation of a positive
Gross Margin, or profit. Examples included lease renewal, lease
extension, equipment sale, and lease termination. A portion of the
expected Gross Margin Commission, labeled the Lease Origination
Commission, was paid to a sales representative at the start of a lease.2
When a Commission Event occurred, GTS would calculate the
Gross Margin generated on the lease.3 The sales representative would
then receive the Gross Margin Commission (equal to approximately
twenty-five percent of GTS’s profit on the transaction) less the Lease
Origination Commission already paid. If the Lease Origination Com-
mission exceeded the value of the Gross Margin Commission, the dif-
ference was deducted from the sales representative’s commission
account. The Plans stipulated that the sales representative had to be
employed on the date commissions became payable, and
"[r]esignation or termination [would] result in the forfeiture of any
further commissions as of the last date of employment." J.A. 287.
In April 2004, GATX announced its plan to sell the assets of GTS
to CIT Corporation ("CIT"). Employees were informed that unless
offered positions with CIT, they would be paid only through July 25,
2004. Meson was not offered a position, and her employment thus
ended when the asset sale closed on June 30, 2004. In response to
Meson’s request, GTS informed her that she would receive "no bonus
payment related to [her] lease portfolio." J.A. 308.
On December 2, 2004, Meson filed a complaint against GATX in
the U.S. District Court for the District of Maryland alleging: (I)
breach of contract for failure to pay all compensation due; (II) viola-
this appeal. We therefore refer to the 2004 Plan.
2
The Lease Origination Commission was generally equal to one per-
cent of the original equipment cost.
3
The Plans included a different Gross Margin calculation method for
each type of Commission Event, generally trying to capture GTS’s profit
on the lease.
4 MESON v. GATX TECHNOLOGY SERVICES
tion of the Maryland Wage Law; (III) refusal to pay severance; and
(IV) violation of the WARN Act, 29 U.S.C. § 2101 et seq.4 The dis-
trict court applied Maryland law, the law of the forum, as neither
party presented facts sufficient to justify application of any other
state’s law.5 The court granted summary judgment on all Counts and
entered final judgment in favor of GATX on August 1, 2006. As to
Meson’s breach of contract claim regarding sales commissions (Count
I), the court found that Meson was not entitled to these commissions
because the asset sale was not a Commission Event.6 With respect to
Count II, the court found that Meson could not invoke the Maryland
Wage law because GATX did not meet the law’s definition of
employer. As to Count IV, the court found Meson’s Falls Church,
Virginia office, her fixed place of work, to be her "single site of
employment." Because that office had fewer than fifty employees, the
district court decided that Meson was not entitled to the protections
of the WARN Act. Meson appeals the judgment on Counts I, II, and
IV.
We review de novo the district court’s grant of summary judgment
in favor of GATX, viewing the facts in the light most favorable to
Meson. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962);
LeBlanc v. Cahill, 153 F.3d 134, 148 (4th Cir. 1998). Summary judg-
ment is proper only where "there is no genuine issue as to any mate-
rial fact" and GATX is "entitled to judgment as a matter of law." See
United States v. Ringley, 985 F.2d 185, 186 (4th Cir. 1993) (citing
Fed. R. Civ. P. 56(c)).
4
Meson originally alleged seven counts, but later agreed to the dis-
missal of three.
5
As a federal court sitting in diversity, the district court was obliged
to apply Maryland law, including its choice of law provisions, unless
another state’s law was clearly applicable. See Hitachi Credit Am. Corp.
v. Signet Bank, 166 F.3d 614, 623-624 (4th Cir. 1999). Neither party
challenges the district court’s choice of law decision on appeal; thus, we
too apply Maryland law.
6
Count I also included a claim concerning Meson’s management com-
pensation. She does not pursue this portion of Count I on appeal.
MESON v. GATX TECHNOLOGY SERVICES 5
II.
Meson’s argument regarding her entitlement to Gross Margin
Commissions (Count I) has mutated on appeal. In the district court,
she argued that the asset sale to CIT was itself a Commission Event.
Meson has since abandoned that position. Her sole argument now is
that she is entitled to commissions under the performance prevention
doctrine ("prevention doctrine"), a common-law principle of contract
law, because the asset sale prevented her from completing Commis-
sion Events on the leases in her portfolio. Application of the preven-
tion doctrine to the facts of this case constitutes a mixed question of
law and fact, Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717,
724 (4th Cir. 2000), which we review by inspecting factual findings
for clear error and examining de novo the legal conclusions derived
from those facts, U.S. Dep’t. of Health & Human Servs. v. Smitley,
347 F.3d 109, 116 (4th Cir. 2003).
In support of her argument, Meson relies on this court’s articula-
tion of the prevention doctrine in the seminal case of Fuller v. Brown:
"[I]f [one party to a contract] is himself the cause of the failure of per-
formance, either of an obligation due from him or of a condition upon
which his liability depends, he cannot take advantage of the failure."7
15 F.2d 672, 677 (4th Cir. 1926) (quoting 2 Williston on Contracts
¶ 677).
The facts in Fuller present a paradigm of the circumstances in
which the prevention doctrine has been found to apply. The employer
there promised to pay an employee a share of the profits on each ship
the company manufactured and sold. These "bonuses" were condi-
tioned upon the employee rendering satisfactory service until the
completion of all twelve ships contemplated by the contract. Id. at
675. Upon completion of each of the first six ships, the employer paid
the employee fifty percent of the bonus due on the particular ship and
retained the other fifty percent. The employee was to receive the
remainder, as to each ship, upon completion of the twelfth ship. Id.
7
Fuller applied North Carolina, not Maryland, law. At oral argument,
however, the parties agreed that there is no meaningful difference
between the Fourth Circuit’s application of the prevention doctrine in
Fuller and the doctrine’s application in Maryland courts.
6 MESON v. GATX TECHNOLOGY SERVICES
After the tenth ship was completed, the employer closed the shipyard.
Id. at 677. The employer also refused to pay the employee the
retained portions of his bonuses, which the employee then sued to
recover. Id. Finding in favor of the employee, this court held that the
completion of twelve ships merely fixed the time of payment. Id. at
677, 678. The court went on to note, moreover, that even if the com-
pletion of all twelve ships were considered a condition precedent to
payment, "the failure to complete them cannot avail the defendant, as
defendant itself was responsible for the failure." Id.
The few cases in which Maryland courts have found the prevention
doctrine applicable involve facts similar to those in Fuller. Singer
Construction Co. v. Goldsborough, 128 A. 754 (Md. 1925), is repre-
sentative of such limited circumstances. In Singer, a broker was
employed to sell properties for a real estate corporation. The broker
"found and presented to the [corporation], within the time specified,
a purchaser who was able, willing and ready to buy upon the terms
specified." Id. at 758. The corporation, however, declined to make the
sale and sold the property to another party. Id. The corporation also
refused to pay the broker a commission, which the broker then sued
to recover. The Court of Appeals of Maryland held that although the
defendant had the power to decline to sell the property, "[w]here the
agent has done all he undertook to do, and procured a buyer as con-
templated, he may not be deprived of his right to remuneration" sim-
ply because the corporation refuses to complete the sale. Id.
Invoking the prevention doctrine, Meson contends that Commis-
sion Events would have occurred on her leases but for the asset sale,
and since GATX was responsible for that sale, GATX must compen-
sate her for the commissions that she would have otherwise gener-
ated. Meson’s argument fails for several reasons. First, the differences
between the facts in Fuller and Singer and those in this case are both
significant and readily apparent. In Fuller, the employee was seeking
the remainder of a bonus he had already earned. The ships in issue
were already completed and had already generated a profit. Similarly,
in Singer, the broker had already "furnished the act requested (i.e., the
procuring of a purchaser), upon which a promise to pay commissions
arose." 128 A. at 758. Here, Meson is trying to recover commissions
that she did not earn, based on events which never occurred.
MESON v. GATX TECHNOLOGY SERVICES 7
It is undisputed that no Commission Event, as defined by the Plan,
occurred with respect to any of the leases for which Meson seeks
recovery. Nor does Meson identify any specific leases that were in the
midst of a Commission Event or for which she had even arranged
such an event. She merely predicts that some leaseholders would have
chosen to renew their leases without further action on her part. Such
speculation is insufficient. To recover under the prevention doctrine,
Meson must have at least arranged a Commission Event, while
employed, and presented a willing and able leaseholder, with only
GATX’s inability or unwillingness to complete the event preventing
her from consummating the transaction. See Singer, 128 A. at 758. As
GATX correctly asserts, preventing Meson from attempting to earn
commissions is not the same as preventing her from receiving com-
missions that she has already earned by completing the work neces-
sary under the Plans.
Meson’s argument also fails to recognize that the Lease Origina-
tion Commissions she received at the start of the leases fully compen-
sated her for her completed performance. As Meson did not
consummate any Commission Events, GTS could not determine
whether or not these originated leases generated a profit. Thus, she
was not paid any Gross Margin Commissions, but she was also not
required to repay any Lease Origination Commissions.
Moreover, specific Plan provisions prevent Meson from recovering
commissions on these facts. Under the Plans, to be entitled to com-
missions she must have been employed at the time of the Commission
Events; here, she was not. Meson tries to argue that such provisions
are unenforceable under Maryland law, but this argument is also
unavailing. The authority on which she relies for such a proposition
holds only that if a commission has already been earned, a require-
ment that an employee be employed on the day it becomes payable
is unenforceable. See Medex v. McCabe, 811 A.2d 297, 303-05 (Md.
2002). Again, under this reasoning as well, Meson’s failure to achieve
a Commission Event prior to her termination precludes recovery.
Finally, it bears repeating that Meson was an at-will employee who
could have been terminated at any time. It flies in the face of the doc-
trine of at-will employment to suggest that GATX was required to
maintain her employment until a Commission Event occurred, or
8 MESON v. GATX TECHNOLOGY SERVICES
compensate her for the lost opportunity. When GATX sold the assets
of its leasing business, an action Meson admits it was permitted to
take, it would certainly have had an obligation to compensate her for
events already consummated. But Meson presents no basis for her
argument that she was impermissibly prevented from earning specula-
tive future commissions. As the prevention doctrine is inapplicable on
these facts, we affirm the district court’s grant of summary judgment
in favor of GATX on Meson’s breach of contract claim for failure to
pay sales commissions.8
III.
Meson’s final argument is that she is entitled to recovery under the
WARN Act, 29 U.S.C. § 2101 et seq. Resolution of this issue requires
us to determine Meson’s "single site of employment" for WARN Act
purposes. As none of the relevant facts are in dispute and this deter-
mination turns on statutory interpretation, we review the district
court’s decision de novo. UMW v. Martinka Coal Co., 202 F.3d 717,
720 (4th Cir. 2000).
The WARN Act was enacted in 1988 to provide notice of sudden,
significant employment loss so that workers could seek alternative
employment and their communities could prepare for the economic
disruption of a mass layoff. Bader v. N. Line Layers, Inc., 2007 U.S.
App. LEXIS 21645 (9th Cir. Sept. 10, 2007); 20 C.F.R. § 639.1(a).
The Act requires certain employers to provide affected employees
with sixty-days notice of a plant closing or "mass layoff." 29 U.S.C.
§ 2102(a). An employer who fails to provide this notice is liable to
each affected employee for backpay, benefits, and attorney’s fees. 29
U.S.C. § 2104(a). The statute defines "mass layoff" as a reduction in
8
Meson argues in Count II that the district court erred in finding the
Maryland Wage Law inapplicable to her Gross Margin Commission
claim. The Maryland Wage Law mandates that an employer pay an
employee all wages due for work performed prior to termination and pro-
vides for treble damages for violations. Md. Code Ann., Lab. & Empl.
§§ 3-505, 3-507.1. Meson contends that the law allows her to pursue tre-
ble damages against GATX for failure to pay the commissions she
sought. By Meson’s own admission, since we have decided that she is
not entitled to additional commissions, we need not reach this issue.
MESON v. GATX TECHNOLOGY SERVICES 9
work force at a "single site of employment" that affects at least thirty-
three percent of the employees and a minimum of fifty employees in
a thirty-day period. 29 U.S.C. § 2101(a)(3). Thus, an employee who
had a fixed workplace where fewer than fifty individuals suffered an
employment loss would seem, on the face of the statute, outside of the
protections of the WARN Act. Meson nevertheless claims that under
Department of Labor regulations she is entitled to WARN Act cover-
age, because GTS’s Tampa, Florida headquarters, and not her Vir-
ginia office, is her "single site of employment."
The WARN Act itself does not define "single site of employment."
However, the Secretary of Labor, pursuant to her authority, has pro-
mulgated interpretive regulations. 29 U.S.C. § 2107. These regula-
tions are entitled to "controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute." Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
Meson invokes 20 C.F.R. § 639.3(i)(6) ("subpart (6)" or the "provi-
sion") of the WARN Act regulations, which states:
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 employ-
ment 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.
Meson filed an uncontested affidavit—essentially quoting the
provision—stating that she "traveled a lot from point to point" and
that her primary work was done outside of the Virginia office. J.A.
480. She thus claims that subpart (6) applies and, accordingly, her sin-
gle site of employment is determined by the second clause of the pro-
vision. Meson further asserts that this second clause is written in the
disjunctive, and because she received work assignments from, and
reported to, officials at the Tampa headquarters, the Tampa office
should be considered her single site of employment for WARN Act
purposes. Appellant’s Br. at 25-27 (citing Ciarlante v. Brown & Wil-
liamson Tobacco Corp., 143 F.3d 139, 145-47 (3d Cir. 1998) (apply-
10 MESON v. GATX TECHNOLOGY SERVICES
ing subpart (6) in this "disjunctive" manner in a case involving
salespersons who worked primarily out of their homes and cars)).
GATX contends, however, that subpart (6) does not apply because
Meson had a fixed place of work, and even if it does apply, the Vir-
ginia office, as Meson’s "home base," is her "single site of employ-
ment" under the Act. The Department of Labor regulations do not
address the apparent inconsistency that arises in the case of an
employee whose duties require travel, as described in subpart (6), but
who also has a fixed place of employment that appears to take her
beyond the scope of the provision. Faced with this discrepancy, we
conclude, consistent with the courts which have construed subpart (6)
in the most closely analogous contexts, that it does not apply on these
facts.
Although subpart (6) could be read literally to cover almost any
employee who leaves her office, we believe it was intended to apply
only to truly mobile workers without a regular, fixed place of work.
A close scrutiny of the provision’s language supports this conclusion.
The terms "travel . . . from point to point," "outstationed," and "home
base," all connote the absence of a fixed workplace. See Ciarlante,
143 F.3d at 146 (defining "home base" as "a site that the employee
visits during the course of a typical business trip"); Bader, 2007 U.S.
App. LEXIS 21645, at *13 ("The term [outstationed] most logically
connotes a situation where employees live for a short period of time
at a certain site, departing for home when the work is done."). The
examples provided in subpart (6) also support this view. Bus drivers
and railroad workers have no fixed workplace or office. Indeed, their
jobs are characterized by travel and mobility. Although the provision
includes "salespersons" as examples, the context suggests that this
reference is to traveling salespersons who work primarily out of their
homes or cars, rather than those who work out of fixed offices.
The commentary to the WARN Act regulations confirms our inter-
pretation. The Department of Labor explains that subpart (6) was
included in the definition of "‘single site of employment’ . . . [i]n
order to cover [the situation of railroad industry maintenance crews
who have no home base] and the situation of outstationed workers
and traveling workers who report to but do not work out of a particu-
lar office . . . ." Commentary to Worker Adjustment and Retraining
Notification Act, 54 Fed. Reg. 16042, 16051 (April 20, 1989)
MESON v. GATX TECHNOLOGY SERVICES 11
(emphasis added). The commentary goes on to refer to subpart (6) as
"that part of the regulation relating to mobile workers." Id. (emphasis
added).
Our view of subpart (6) is consistent with the few other courts that
have construed the provision in the context of an employee who has
an undisputed fixed place of work. When interpreting a similar term
in the Family Medical Leave Act, the Tenth Circuit concluded that
subpart (6) does not govern such employees. See Harbert v. Health-
care Servs. Group, Inc., 391 F.3d 1140, 1152 (10th Cir. 2004). That
court reasoned (1) that all three employee examples listed in the pro-
vision do not have a fixed place of work; (2) that the agency referred
to the provision as "that part of the regulation relating to mobile
workers;" and (3) for employees with a fixed workplace there is no
reason to believe that the Department of Labor would have chosen
another single site. Id.; see also Moore v. On-Line Software Int’l, Inc.,
No. 92 CD 1563, 1993 WL 244902, at *5 (N.D. Ill. Apr. 13, 1993)
(finding the "only logical conclusion" to be that subpart (6) did not
apply to a regional sales manager and sales representative with a "reg-
ular employment site").
When faced with more loosely analogous facts, some courts, how-
ever, have chosen to look directly to subpart (6) to determine whether
an employee or group of employees qualifies for WARN Act cover-
age without lingering on the overarching statutory construct. These
courts ascertain (1) whether the alleged "single site of employment"
was the employee’s home base; (2) whether the employee’s work was
assigned from that location; or (3) whether the employee reported to
that site. If the site advanced by the employee satisfies any of the
three inquiries and the other WARN Act criteria are met, that
employee is entitled to the WARN Act’s protections. See, e.g., Bader,
2007 U.S. App. LEXIS 21645, at *12-13 (taking this approach despite
opining that subpart (6) may not actually apply to small groups of
construction workers and project managers working at sites across the
country); Ciarlante, 143 F.3d at 145-46 (applying the provision in this
manner in a case involving traveling salespersons); Teamsters Local
Union 413 v. Driver’s, Inc., 101 F.3d 1107, 1109-11 (6th Cir. 1996)
(using this approach in a case involving truck drivers).
Notwithstanding this alternative approach, we find that the pur-
poses of the WARN Act, the provisions’s language, and the Depart-
12 MESON v. GATX TECHNOLOGY SERVICES
ment of Labor commentary make it plain that subpart (6) was not
intended to cover employees like Meson. Meson was not a "mobile
worker": she "work[ed] out of a particular office" in Falls Church,
Virginia and also managed the two other employees in that office.
Though she traveled to visit clients in her region and reported to offi-
cials located at the Tampa office, her position was similar to that of
most other branch managers who receive work assignments from, and
report to, their company’s headquarters. Were we to construe subpart
(6) to apply on these facts, every such regional manager or chief exec-
utive could claim the corporate headquarters—in lieu of the office she
manages—as her "single site of employment." See Moore, No. 92 C
1563, 1993 WL 244902, at *5 (N.D. Ill. Apr. 13, 1993). We do not
believe that Congress or the Department of Labor intended the provi-
sion to possess such a potentially limitless scope.
Finally, we note that the minimal impact on the Falls Church com-
munity also militates against a finding that the WARN Act’s purposes
would be served by applying it to Meson. See Wiltz v. M/G Transport
Servs., Inc., 128 F.3d 957, 963 (6th Cir. 1997) (stating that the "ab-
sence of community impact cuts against a finding of ‘single site’").
As we have discussed, the WARN Act was enacted, in part, to pre-
pare communities for the economic disruption of a mass layoff. See
20 C.F.R. § 639.1(a). There was no such layoff here. In fact, Meson’s
job loss was the only one suffered by this Virginia community as a
result of the asset sale. Congress’s decision to target only those
employment losses affecting a minimum of fifty employees in one
locale supports our conclusion that subpart (6) does not apply on
these facts. We therefore find that Meson’s "single site of employ-
ment" under the WARN Act was the GTS office in Falls Church, Vir-
ginia. As this office, comprised as it was of only three individuals, did
not have the requisite number of affected employees to trigger appli-
cation of the WARN Act, we affirm the district court’s grant of sum-
mary judgment in favor of GATX on this issue.
IV.
For the reasons stated herein, the judgment of the district court is
AFFIRMED.