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Gremillion v. Cox Communications Louisiana

United States District Court, E.D. Louisiana

June 22, 2017

SCOTT 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 Conditional Certification as a Collective Action and Notice of Potential Class Members, filed by plaintiff Scott Gremillion (Rec. Doc. 83). Oral argument was held on June 14, 2017, and the matter was taken under submission. For the following reasons, the Motion is GRANTED in part.

         Background

         Plaintiff Scott Gremillion worked as a cable technician for defendant Grayco Communications, L.P. (“Grayco”) performing cable repair and installation services for customers of Cox Communications Louisiana, LLC (“Cox”). He filed this lawsuit on behalf of himself and others similarly situated on June 13, 2016, alleging that Grayco and Cox are liable under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., and Louisiana's wage payment laws, La. Rev. Stat. § 23:631, et seq., for failing to pay him and other 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).

         On November 1, 2016, the District Court dismissed Gremillion's claims under La. Rev. Stat. § 23:631 and § 23:632, but held that he had stated a claim under § 23:635. (Rec. Doc. 41). 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 agreed to conduct discovery and file a motion for summary judgment on the issue of whether Cox and Grayco were joint employers before addressing conditional class certification. At that time, they also agreed “to toll the statute of limitations for a period of 90 days (such that the parties will observe the limitations period as 90 days longer than it would otherwise be).” (Rec. Doc. 60). On April 3, 2017, the undersigned granted Cox's motion for summary judgment on the issue of joint employer liability, finding that Cox was not Gremillion's employer under the FLSA or Louisiana's wage payment laws. (Rec. Doc. 79). Cox was dismissed and Gremillion is proceeding against Grayco.

         Gremillion now seeks to have this matter conditionally certified as a collective action under the FLSA. He proposes to define the putative class as follows:

         All individuals who:

1. Worked for Grayco at any time during the past three years and;
2. Worked as a cable technician providing cable repair and installation services on behalf of Grayco and were paid upon a “point” system.

         In his declaration under penalty of perjury, Gremillion states that he and other technicians were paid on a per-job basis and that technicians were not paid time and half for hours worked over 40 in one week. He says technicians were paid the same rate regardless of the number of hours it took to complete a job and regardless of how much time was spent picking up equipment and/or traveling to and from each job. In his Complaint, Gremillion explains that he and other Grayco technicians accumulated “points” based on the type of job assignments they performed and they were paid based on the number of points they accumulated. Grayco does not dispute this assertion at this stage. Indeed, Gremillion cites the deposition testimony of Grayco's corporate representative Nathan Williams, Jr., who agreed that prior to November 2016, all technicians were paid on a point basis. Williams testified that since that time, technicians have been paid on an hourly basis. There was some dispute in the briefing regarding whether all Grayco technicians nationwide are paid pursuant to this system or only technicians in Louisiana. However, at oral argument, counsel for Gremillion conceded that he only seeks to certify a class of technicians who worked in Louisiana.

         In support of his claim that he and other technicians were not paid for overtime work, Gremillion declares that he worked at least 60 hours almost every week and often received paychecks as small as $300 a week. According to the allegations of his Complaint, Gremillion typically started work at 7:00 a.m., gathering necessary equipment from a warehouse. He would visit approximately 7 to 10 customers' homes and would not typically conclude work until 7:00 p.m. He says he worked six days a week. In the memorandum in support of the present motion, counsel for Gremillion further elaborates that his work included driving to customers' homes and businesses to perform work, calling customers to confirm appointments, attending meetings with Grayco supervisors, submitting paperwork or electronic notification of completed jobs at the end of each day, and, when necessary, returning to Grayco's offices at the end of each day. Counsel for Gremillion also submits that “all cable technicians hired by Grayco” performed the same duties. Gremillion asserts that Grayco has actual and constructive notice or knowledge of this “off-the-clock work.” Gremillion's Complaint also alleges that he was not always paid the required minimum wage. Gremillion declares that technicians were often fined and received deductions from their paychecks as a result of alleged failed quality check inspections, equipment failures, customer service calls by customers previously serviced by the technician (even if the call did not relate to the quality of the work performed by the technician), arriving late to a service call, and equipment not properly documented by management. The Court notes that the description of the lawsuit in the proposed notice that Gremillion submitted did not describe claims related to the purported failure to pay minimum wage. However, at oral argument, Gremillion's counsel insisted that these claims remain part of the lawsuit.

         Finally, Gremillion declares that he is personally aware of other similarly situated employees and former employees who have been improperly compensated in violation of the FLSA. As Grayco pointed out, Gremillion did not provide any affidavits of these other employees. At oral argument, counsel for Gremillion explained that he has not contacted any other employees, but he knows that similarly situated employees exist because all Louisiana employees worked under the point system. He added that Gremillion does not have easy access to other potential class members because he no longer works for Grayco.

         Law ...


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