United States District Court, E.D. Louisiana
BILL CROSBY ET AL.
COX COMMUNICATIONS, INC. ET AL.
ORDER AND REASONS
VAN MEERVELD, MAGISTRATE JUDGE
the Court is the Motion for Summary Judgment filed by
defendant Cox Communications, Inc.
(“Cox”). (Rec. Doc. 50). For the following reasons,
IT IS ORDERED that the Motion for Summary Judgment is
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. Plaintiffs Bill Crosby, Larry Walker,
and Byron Taylor (“Plaintiffs”) allege that Cox
and Superior Telecom Services, Inc. (“Superior”)
are liable as their employers for failing to pay them and
other installers and technicians for work in excess of 40
hours in a work week and for failing to keep records in
accordance with FLSA. On October 17, 2016, the District Judge
dismissed Superior without prejudice because Plaintiffs had
failed to serve this defendant. (Rec. Doc. 32).
parties consented to proceed before the undersigned
Magistrate Judge, and on January 3, 2017, the District Judge
ordered the matter be referred to the undersigned pursuant to
28 U.S.C. § 636(c). (Rec. Doc. 43). The parties also
agreed to resolve issues related to the alleged liability of
Cox as a joint employer first, with Plaintiffs' 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 Plaintiffs' employer under
the FLSA and it must be dismissed from this lawsuit. (Rec.
Doc. 50-1). Plaintiffs oppose. (Rec. Doc. 55).
provides cable, telephone and Internet services to residences
and businesses in Louisiana and elsewhere in the United
States. To access these services, Cox's customers buy
cable equipment from Cox. Cox contracts with third parties to
provide installation and maintenance services to Cox's
customers. Superior provided these services for Cox from June
2013 until May 2016. Superior had been in business in
Louisiana for at least five years when it first engaged with
Cox: Mr. Crosby testified that he began working for Superior
relationship with Superior during the relevant time period
was governed by a Field Services Agreement
(“FSA”) between them. Pursuant to the FSA,
Superior is an “independent contractor” and none
of Superior's employees or representatives is to be
deemed a Cox employee, agent, or representative. (FSA, ¶
9, Rec. Doc. 50-6). It appears that Superior contracted with
a company called Stargate Communication, Inc.
(“Stargate”) to provide the services contemplated
under the FSA. Mr. Crosby testified that Superior began using
Stargate to supply additional workers in 2012 or 2013. And
the Plaintiffs' tax documents indicate they were paid by
Stargate as independent contractors. According to Cox's
Director of Field Services, Joseph Peeples, Superior was
required to provide Cox with notice prior to contracting with
another vendor to provide services under the FSA, but
Superior did not notify Cox about Stargate. Mr. Peeples
asserts that Cox first learned of the existence of Stargate
through this litigation. Cox does not have a contract with
Stargate and has never issued any work orders or technician
numbers to Stargate.
uncontested that Cox does not share office space or
warehouses with Superior or Stargate. Nor does Cox have an
ownership interest in Superior or Stargate. As noted above,
Superior was operating in Louisiana as early as 2008, when
Mr. Crosby began working for Superior. Further, Mr. Crosby
testified that Superior operated in states other than
Louisiana (including Florida, Virginia, Oklahoma, North
Carolina and Texas), but no longer operates in Louisiana at
this time. Little is known about Stargate. According to Mr.
Crosby, Stargate was formed by a Superior supervisor. And,
although Plaintiffs worked for Stargate, they reported to
Hiring and Firing
requires that Superior “maintain adequate, qualified,
experienced and professional-appearing” personnel.
(FSA, ¶ 4.1, Rec. Doc. 50-5). Pursuant to the FSA,
Superior agreed that it would subject all of its personnel to
background checks (including drug screenings and a criminal
background check) before the personnel could perform services
contemplated by the FSA. Id. Cox says this policy
ensures that its customers are safe and not subject to
individuals who have committed crimes or use illegal drugs.
The FSA requires annual background checks and authorizes Cox
to request an additional background check. Id.
Pursuant to the FSA, if a person does not meet the background
check requirements, Superior would not continue to allow that
person to perform services for Cox customers. Id.
Mr. Taylor and Mr. Walker testified that Cox temporarily
de-authorized them at some point, but they admit they were
not terminated from Superior.
present no evidence to contradict Mr. Peeples'
declaration that Cox had no input in the decision to hire Mr.
Crosby, Mr. Taylor, or Mr. Walker. It is undisputed that Cox
did not hire Mr. Crosby, Mr. Taylor, or Mr. Walker directly.
Mr. Crosby started working for Superior in 2008 and
transferred to Stargate when Stargate started working with
Superior in 2012 or 2013. Although Mr. Crosby does not recall
filling out an application to work for Superior or Stargate
(he transferred to each company), he testified that he never
interviewed with anyone at Cox and did not submit an
application to Cox. Mr. Taylor submitted an application to
Superior, interviewed with a Superior supervisor, and
understood that he was hired as an independent contractor for
Superior. Mr. Walker completed an application for Superior
but worked for Stargate and was paid by Stargate. Just as Mr.
Crosby did not submit an application to Cox, neither Mr.
Walker nor Mr. Taylor submitted applications to Cox, either.
Mr. Crosby resigned, he notified Stargate he was leaving, not
Cox. When Mr. Walker resigned, he notified his supervisor at
Stargate. Mr. Taylor stopped working because of an injury and
he filed his worker's compensation claim against
Stargate, not Cox.
have presented no evidence to dispute Cox's
representative's declaration that Cox has no involvement
or input in the hiring and firing decisions of Superior or
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. This request creates a
“work order” in Cox's automated billing
system. Cox has a separate computer application that
automatically generates bundles of work orders and sends
bundles to Superior based on the resources Superior has
available. Cox explains that the Superior technician numbers
serve as placeholders and that Superior 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. In deposition, each of
the named plaintiffs agreed that Superior or Stargate can add
or change the routes assigned by Cox's auto-routing
system. According to Mr. Walker, Stargate sometimes added or
changed jobs around to make it more convenient for the
technicians. Mr. Walker also testified that Cox could add
jobs through the same computer system. Mr. Crosby and Mr.
Taylor testified that they contacted their supervisors at
Superior or Stargate if they were sick or needed time off.
Mr. Crosby, Mr. Taylor and Mr. Walker did not report to Cox
supervisors, but instead were supervised by individuals with
Superior or Stargate.
point out that the FSA requires Superior to route work to
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.” FSA
at ¶ 2.4. They add that the FSA prohibits Superior from
using a technician number assigned to one personnel for
another personnel without Cox's permission. (FSA, ¶
2.1, Rec. Doc. 70-6). They also point to language in the FSA
that Cox assigns work orders “on an ‘as
needed' basis in Cox's sole discretion.”
Id. ¶ 2.1.
safety reasons, ” the FSA requires that technicians
“at all times represent and identify themselves as
independent contractors of Cox and follow Cox's branding
and identification guidelines and procedures for independent
contractors.” Id. ¶ 2.14. The technicians