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Crosby v. Cox Communications, Inc.

United States District Court, E.D. Louisiana

May 1, 2017


         DIVISION: 1



         Before the Court is the Motion for Summary Judgment filed by defendant Cox Communications, Inc. (“Cox”).[1] (Rec. Doc. 50). For the following reasons, IT IS ORDERED that the Motion for Summary Judgment is GRANTED.


          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.[2] 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).

         The 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).

         Undisputed Facts

          a. Superior-Cox Relationship

         Cox 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 in 2008.

         Cox's 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.

         It is 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 Superior's office.

         b. Hiring and Firing

         The FSA 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.[3]

         Plaintiffs 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.

         When 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.

         Plaintiffs 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 Stargate.

          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. 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.

         Plaintiffs 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.

         “For 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. ΒΆ 2.14. The technicians wear ...

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