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Gremillion v. Cox Communications Louisiana

United States District Court, E.D. Louisiana

April 3, 2017

SCOTT MR. GREMILLION
v.
COX COMMUNICATIONS LOUISIANA ET AL.

         DIVISION: 1

          ORDER AND REASONS

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Motion for Summary Judgment filed by defendant Cox Communications Louisiana LLC (“Cox”). (Rec. Doc. 70). For the following reasons, IT IS ORDERED that the Motion for Summary Judgment is GRANTED.

         Background

         This lawsuit is a putative collective action under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., and a putative class action under Louisiana's wage payment laws, La. Rev. Stat. § 23:631, et seq.[1] Plaintiff Scott Gremillion alleges that Cox and defendant Grayco Communications, L.P. (“Grayco”) are liable as his employers for failing to pay him and other installers and technicians for work in excess of 40 hours in a work week “through the guise of the pay-per-point/unilateral charge-back scheme.” (Rec. Doc. 1, ¶13). The parties consented to proceed before the undersigned magistrate judge and on December 8, 2016, the District Judge ordered the matter be referred to the undersigned pursuant to 28 U.S.C. § 636(c). (Rec. Doc. 61).

         The parties also agreed to resolve issues related to the alleged liability of Cox as a joint employer with Grayco first, with Mr. Gremillion's motion for conditional class certification to follow thereafter. In the present Motion for Summary Judgment, Cox maintains that as a matter of law, it is not Mr. Gremillion's employer under the FLSA and it must be dismissed from this lawsuit. (Rec. Doc. 70-1). Mr. Gremillion opposes. (Rec. Doc. 75).

         Undisputed Facts

         a. Grayco-Cox Relationship

         Cox provides cable, telephone and Internet services to residences and businesses in Louisiana and elsewhere in the United States. (Cox Undisputed Facts, ¶ 1, Rec. Doc. 70-2). To access these services, Cox's customers buy cable equipment from Cox. Id. ¶ 2. Cox contracts with third parties like Grayco to provide installation and maintenance services to Cox's customers. Id. ¶ 4. Grayco began providing these services to Cox in July 2014. Id. ¶ 5. Cox and Grayco's relationship for the relevant time period is governed by a June 1, 2015, Field Services Agreement (“FSA”) between them. Id. ¶¶ 21-23. Pursuant to the FSA, Grayco is an “independent contractor” and none of Grayco's employees or representatives is to be deemed a Cox employee, agent or representative. (FSA, ¶ 9, Rec. Doc. 70-6).

         Cox has presented uncontested declarations asserting that Grayco had been operating independently for 15 years before it began servicing Cox customers, that Cox and Grayco maintain separate offices, that Cox does not have an ownership or financial interest in Grayco, and that Grayco does not have an ownership or financial interest in Cox. Id. ¶6-12. Further, Cox does not supply or share managers or employees with Grayco. Id. ¶ 11. Instead, Grayco employs managers and supervisory personnel to oversee Grayco's installation technicians. Id. ¶ 15. Mr. Gremillion concedes that Grayco does business with other companies besides Cox, but points out that in Louisiana, Grayco solely provides services to Cox. (Mr. Gremillion Opp., at 4, Rec. Doc. 75).

         b. Hiring and Firing

         The FSA requires that Grayco “maintain adequate, qualified, experienced and professional-appearing” personnel. (FSA, ¶ 4.1, Rec. Doc. 70-6). The FSA also requires that a Grayco technician must pass a criminal background check and a drug test before performing any work for Cox customers. (Cox Undisputed Facts, ¶ 39, Rec. Doc. 70-2). Cox says this policy ensures that its customers are safe and not subject to individuals who have committed crimes or use illegal drugs. Id. The FSA requires annual background checks and authorizes Cox to request an additional background check. (FSA, ¶ 4.1, Rec. Doc. 70-6). Pursuant to the FSA, if a person does not meet the background check requirements, Grayco would not continue to allow that person to perform services for Cox customers. Id.

         It is undisputed that Cox did not hire Mr. Gremillion. (Cox Undisputed Facts, ¶ 55, Rec. Doc. 70-2). Mr. Gremillion submitted an application to Grayco, not Cox. Id. ¶ 56. When Mr. Gremillion applied, Grayco processed a background check as required by the FSA and submitted the results to Cox. Id. ¶¶ 59-60. Cox then sent Grayco a technician badge for Mr. Gremillion and a technician identification number. Id. ¶ 61. As Grayco's corporate representative explained in his deposition, “[t]he hiring of an individual is totally within our discretion, so [Cox] shouldn't have to approve us hiring someone.” (Williams Depo., at 107, Rec. Doc. 70-6). Once Grayco decides to hire a technician, a clean background check is required “[t]o obtain a badge, ” which allows the technician to enter customers' homes. Id. It is also undisputed that when Mr. Gremillion resigned, he notified Grayco and not Cox. (Cox Undisputed Facts, ¶ 117, Rec. Doc. 70-2).

         c. Supervision and Control

         When a Cox customer requests installation and maintenance services, the customer contacts Cox and selects a two hour window of time for the service to take place. (Cox Undisputed Fact, ¶ 26, Rec. Doc. 70-2). This request creates a “work order” in Cox's automated billing system. Id. ¶ 27. Cox has a separate computer application that automatically generates bundles of work orders and assigns each bundle to a particular Grayco technician number. Id. ¶ 28-29. Cox explains that the Grayco technician numbers serve as placeholders and that Grayco can assign the work orders to technicians in any manner it sees fit and Cox learns the technician number for the individual who performed the work order when the work order is completed and recorded in Cox's automated billing system. Id. ¶¶ 31-32. Mr. Gremillion does not dispute this explanation. However, he points out that the FSA prohibits Grayco from using a technician number assigned to one personnel for another personnel without Cox's permission. (FSA, ¶ 2.1, Rec. Doc. 70-6). Mr. Gremillion also points to language in the FSA that Cox assigns work orders “on an ‘as needed' basis in Cox's sole discretion.” Id. ¶ 2.1. Mr. Gremillion further notes that the FSA requires Grayco to assign work to its personnel “in a manner reasonably calculated to not adversely affect the quality of the work and to not result in high first call resolution leading to chargebacks.” Id. ¶ 2.4

         Cox conducts random quality control checks and requests that its customers complete surveys. (Cox Undisputed Facts, ¶ 34-35, Rec. Doc. 70-2). Mr. Gremillion does not dispute the evidence presented by Cox that it only discusses customer complaints, surveys and quality control checks with Grayco management and never with Grayco's technicians. Id. ¶¶36-37.

         Mr. Gremillion admitted in deposition that he was supervised by Grayco manager Louis Hall and that he was not supervised by anyone at Cox. Id. ¶¶ 97-98. Mr. Gremillion testified that if he was sick or needed to leave work early or arrive late, he checked in with Mr. Hall. Id. ΒΆ100. He testified that he did not contact Cox if he had issues with an installation and only contacted Cox if Grayco's computer system was shut down or if he needed Cox to turn on its cable service to a specific location so he could determine if the cable ...


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