United States District Court, E.D. Louisiana
SCOTT MR. GREMILLION
COX COMMUNICATIONS LOUISIANA ET AL.
ORDER AND REASONS
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
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
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. 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).
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).
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).
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).
Hiring and Firing
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.
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).
Supervision and Control
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
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.
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. ¶100. 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 ...