United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE.
Battle, Russell Blakely, Rodney Bridges, Nicholos Butts,
Tanner Carden, Douglas Ferren, Robert Field, Randall Hill,
Bret Hughes, Earnest Jackson, Tyrone Kelley, Carl Kennedy,
Ellon La Mothe, Scott Manzo, Andrew Mitchell, Jose Morales,
Ricardo Newman, Jayson Porter, Dusty Prestridge, James Renkl,
Kenneth Rogers, Jonathan Summerlin, Mark Yates, Geno Marine,
and Austin Carpenter assert claims against DIRECTV, L.L.C.
for violations of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (“FLSA”). Doc. 26-1.
Presently before the court are DIRECTV's four
issue-specific motions for summary judgment, docs. 78, 81,
83, 85,  which are fully briefed, docs. 79, 82, 84,
86, 94, 95, 96, 99, 104, 105, 106, 107, and ripe for review.
For the reasons stated below, the fourth motion is due to be
granted, and, as a result, this case is due to be dismissed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a), summary judgment is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id.
at 323. The burden then shifts to the non-moving party, who
is required to go “beyond the pleadings” to
establish that there is a “genuine issue for
trial.” Id. at 324 (internal citations and
quotation marks omitted). A dispute about a material fact is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 244 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual dispute will be
resolved in the non-moving party's favor when sufficient
competent evidence supports that party's version of the
disputed facts. But see Pace v. Capobianco, 238 F.3d
1275, 1276-78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party's favor when
that party's version of events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that a jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
provides satellite television services and “sells its
services on a subscription basis, necessitating the
installation of equipment in its customers' homes to
establish a connection to the DIRECTV network.” Doc. 79
at 9. DIRECTV maintains a W2 technician work force and also
contracts with various subcontracting companies, which
provide purported independent contractor technicians.
Id. The Plaintiffs were engaged by subcontracting
companies to perform DIRECTV installation and related work.
Id. DIRECTV, the subcontracting companies, and
technicians coordinated the scheduling of work orders through
a program known as Siebel, which “runs a script that
pairs available technicians based on their ‘technician
profile' . . . with available customer requests for
work.” Id. at 15-16.
argues that it is due summary judgment for four independent
reasons: (1) the Plaintiffs are independent contractors; (2)
even if the Plaintiffs are employees, DIRECTV is not their
joint employer; (3) even if the Plaintiffs are employees,
DIRECTV is not liable based on the § 7(i) exemption; and
(4) the Plaintiffs failed to present sufficient evidence of
their damages. The court examines these arguments separately
Plaintiff's Alleged Independent Contractor
first seeks summary judgment on the basis that the Plaintiffs
are independent contractors, doc. 79, who do not qualify as
“employees” under the FLSA, Freund v. Hi-Tech
Satellite, Inc., 185 F. App'x 782, 782 (11th Cir.
2006).In distinguishing between employees and
independent contractors, the salient question is whether a
worker is “dependent upon the business to which [he]
render[s] service” as a “matter of economic
reality.” Bartels v. Birmingham, 332 U.S. 126,
130 (1947). Thus, economic reality, rather than any label
placed on the relationship by the parties, controls. Several
factors guide the inquiry into the economic reality of the
1. [T]he nature and degree of the alleged employer's
control as to the manner in which the work is to be
2. [T]he alleged employee's opportunity for profit or
loss depending upon his managerial skill;
3. [T]he alleged employee's investment in equipment or
materials required for his task, or his employment of
4. [W]hether the service rendered requires a special skill;
5. [T]he degree of permanency and duration of the working
6. [T]he extent to which the service rendered is an integral
part of the alleged employer's business.
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308,
1312 (11th Cir. 2013). “No one of these considerations
can become the final determinant, nor can the collective
answers to all of the inquiries produce a resolution which
submerges consideration of the dominant factor-economic
dependence.” Usery, 527 F.2d at 1311 (citing
Mednick v. Albert Enters., Inc., 508 F.2d 297 (5th
Cir. 1975)). In other words, “[t]he purpose of weighing
the factors is . . . to view them qualitatively to assess the
evidence of economic dependence.” Antenor v. D
& S Farms, 88 F.3d 925, 933 (11th Cir. 1996). The
ultimate determination of an individual's employment
status is a question of law. Id. at 929.
“Subsidiary findings are considered issues of
fact.” Freund, 185 F. App'x at 783 (citing
Patel v. Wargo, 803 F.2d 632, 634 n.1 (11th Cir.
noted by the court in Lang v. DirecTV, Inc., 801
F.Supp.2d 532, 536 (E.D. La. 2011), courts have reached mixed
results about whether satellite and cable installers are
employees or independent contractors under the FLSA.
Generally, courts have decided this issue after a trial. In
this circuit in particular, most district courts that have
faced this issue have found that a factual determination was
necessary to properly assess the Scantland factors.
See Freund, 185 F. App'x at 782 (upholding
decision of trial court after bench trial that plaintiff was
an independent contractor); Parrilla v. Allcom Constr.
& Installation Servs., LLC, No.
6:08-cv-1967-Orl-3GJK, 2009 WL 2868432 (M.D. Fla. Aug. 31,
2009) (holding after bench trial that plaintiff was an
employee); Santelices v. Cable Wiring, 147
F.Supp.2d 1313 (S.D. Fla. 2001) (finding genuine issues of
material fact as to plaintiff's employment status).
nutshell, DIRECTV contends that its control over the
Plaintiffs' work is analogous to that in Roslov v.
DirecTV Inc., which held that “DIRECTV's
installation standards and uniform requirements . . . are
entirely consistent with the standard role of a contractor
who is hired to perform highly technical duties, ” and
that installers were independent contractors rather than
employees. Doc. 79 at 25 (quoting 218 F.Supp.3d 965, 974
(E.D. Ark. 2016) (internal quotation marks omitted)).
Specifically, DIRECTV alleges that the Plaintiffs
“negotiated the terms of their engagement directly with
a subcontractor representative, ” doc. 79 at 24, spent
the “vast majority of their time” working
“unsupervised, ” id. at 25, “were
responsible for determining the manner and method by which
the work orders would be performed, ” id.,
established their own availabilities, id. at 26, and
that, “once assigned a work order, [the Plaintiffs]
retained a significant degree of flexibility and autonomy
over their own schedules, ” including “decid[ing]
which jobs to perform first, ” id. at 27.
Plaintiffs allege that DIRECTV controlled work hours, the
length of the work week, requests for time off, and the types
of work assigned to technicians, doc. 94 at 13-14, 23, 26,
and could stop assigning work to an installer in cases of
inadequate work or misconduct, doc. 95 at 12 n.30, 16 at
n.48. It “dictat[ed] the manner and method of
[installers'] work, ” including how to conduct the
installation and “what words to use when talking to the
customer, ” through the Standard Professional
Installation Guide, from which installers were not allowed to
deviate, and prohibited subcontractor technicians from
performing cable installations for other companies not
affiliated with DIRECTV. Doc. 94 at 11, 16-17, 24-25;
see doc. 98-30 at 13, 15-16. Finally, DIRECTV
dictated the clothing, grooming, and appearance of
technicians, “including hair color, the number and
location of body piercings and the visibility of
tattoos.” Doc. 94 at 14. Taking these facts as true, as
it must at this juncture of the case, the court finds that
they weigh against a finding, as a matter of law, that the
Plaintiffs were independent contractors.
Opportunity for Profit or Loss
court also considers the “alleged employee's
opportunity for profit or loss depending on his managerial
skill.” Scantland, 721 F.3d at 1312.
Managerial skills include “control over price and
choice of work location, advertising, and services
provided.” Ingram v. Passmore, 175 F.Supp.3d
1328, 1336 (N.D. Ala. 2016) (citations omitted).
to DIRECTV, “[o]nce certified, Plaintiffs became their
own independent businesses, free to use their skills as they
pleased and realize profits through their business
decisions.” Doc. 79 at 28. Allegedly, installers made
daily decisions that could impact their opportunity for
profit or loss, including “their selection of
materials, their control over overhead expenses, their
performance of work with other entities, and their decisions
regarding with which companies they would contract, ”
doc. 106 at 8, their daily routes, the speed with which they
completed work orders, their negotiation for the performance
of custom labor, and their sales of the DIRECTV Protection
Plan to customers, doc. 79 at 29-31.
Plaintiffs contend that they “exercised no managerial
skill that would translate into profit or loss, ” and
that DIRECTV, which assigned the work orders, controlled the
prices and work locations. Doc. 94 at 27. While the
Plaintiffs admit they could earn additional income from
performing custom work for customers, they contend that
DIRECTV set the rates they could charge for such work.
Id. at 15. Moreover, the Plaintiffs contend that
their ability to choose their selection of materials and
mitigate overhead expenses was limited by DIRECTV's
requirements that they use “only DIRECTV-approved
materials, ” “drive a vehicle that complied with
DIRECTV's standards, ” and purchase uniforms and a
vehicle placard from DIRECTV. Id. at 14-15.
reviewing the facts in the light most favorable to the
Plaintiffs, these facts weigh against a finding, as a matter
of law, of independent contractor status.
Investment in Equipment and Materials
argues that the Plaintiffs “made sizable
investments” in “tools, phones, equipment,
ladders, and other materials to perform installations,
including vehicles and fuel.” Doc. 79 at 31. The
Plaintiffs do not dispute this, but contend that their
investments should be weighed against those that DIRECTV has
made in its distribution network, warehouses, and similar
infrastructure. Doc. 94 at 30-31 (citing Parilla,
2009 WL 2868432 at *4).
interpretation of Parilla misses the mark, as it
held that the plaintiff “did not make any significant
investment in capital or employ others, ” not that he
did not make significant investments compared to those of the
defendant, which the Parilla court did not consider
in its analysis of this factor. 2009 WL 2868432 at *4.
Accordingly, this factor weighs in favor of finding
independent contractor status as a matter of law.