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Battle v. Directv, L.L.C.

United States District Court, N.D. Alabama, Southern Division

September 14, 2017

KRIS BATTLE, et al., Plaintiffs,
v.
DIRECTV, L.L.C., Defendant.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE.

         Kris 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, [1] 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.

         I. STANDARD OF REVIEW

         Under 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).

         The 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).

         II. FACTUAL BACKGROUND[2]

         DIRECTV 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.[3]

         III. ANALYSIS

         DIRECTV 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 below.

         A. Plaintiff's Alleged Independent Contractor Status

         DIRECTV 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).[4]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 parties' relationship:

1. [T]he nature and degree of the alleged employer's control as to the manner in which the work is to be performed;
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 workers;
4. [W]hether the service rendered requires a special skill;
5. [T]he degree of permanency and duration of the working relationship;
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. 1986)).

         As 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).

         1. Control

         In a 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.

         The 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.

         2. Opportunity for Profit or Loss

         The 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).

         According 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.

         The 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.

         Again, 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.

         3. Investment in Equipment and Materials

         DIRECTV 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).

         This 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.

         4. S ...


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