United States District Court, W.D. Louisiana, Lafayette Division
CHRISTOPHER PREJEAN, on behalf of Himself and Other Persons Similarly Situated
SATELLITE COUNTRY, INC., LYNN JENKINS & PAMELA MCCUE
WHITEHURST, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
before the Court is a Motion for Summary Judgment to Dismiss
Claims of Opt-Ins Against Pamela McCue, Lynn Jenkins &
Satellite Country (“Motion for Summary Judgment”)
[Doc. No. 123] filed by Defendants. They contend that neither
Pamela McCue (“McCue”), a former employee and
officer of Satellite Country, Inc. (“Satellite
Country”); Lynn Jenkins (“Jenkins”), the
owner and CEO of Satellite Country; nor Satellite Country
itself was the “employer” of the Opt-In
Plaintiffs as that term is defined by the Fair Labor
Standards Act (“FLSA”). Plaintiffs filed a
Memorandum in Opposition to the motion [Doc. No. 130].
Defendants filed a reply. [Doc. No. 141].
following reasons, Defendants' motion is GRANTED IN PART
and DENIED IN PART.
September 14, 2017, Christopher Prejean, on behalf of himself
and all others similarly situated, filed a Collective Action
Complaint against Defendants Satellite, McCue, and Jenkins,
alleging violations of provisions of the Fair Labor Standards
Act (hereinafter “FLSA”) for failure to pay
overtime wages. On April 17, 2018, this Court conditionally
certified this matter as a Collective Action, and
approximately fifty-five (55) Plaintiffs have joined the
is a Texas corporation which has been in business for
approximately twenty years and provides sales and fulfillment
work for third party entities. While its headquarters and
administrative offices are in Austin, Texas, it provides
fulfillment work in limited markets, primarily the Lafayette,
Baton Rouge, and Alexandria, Louisiana areas (known as
“HUB installation locations”). Most of its work
over the years has been provided on behalf of Dish Network
Corporation (“DISH”), a home televisions services
provider based in Colorado. DISH provides the
direct-broadcast satellite provider DISH and the IPTV service
and McCue have been named individually as Defendants in this
matter. They have a personal relationship and live together
in Utah. With regard to Satellite Country, Jenkins is the
founder and CEO and remains active with the company. McCue
began working for Satellite Country in 2000, focusing on the
administrative side of the business. She was formerly the
President of the company, but relinquished all active roles
in 2015. McCue continues to assist from time to time on
issues that may arise, including gathering information
responsive to discovery requests in this lawsuit.
third Defendant, Satellite Country itself, employs forty-nine
persons as employees who receive W-2s from the company. These
employees handle sales, advertising, fulfillment,
administration, and management. During the collective period,
however, Satellite Country contracted with satellite
technicians to perform fulfillment work. Currently, Satellite
Country has only twelve subcontractor technicians to perform
the fulfillment services. It also has some technicians now
who are employed to perform fulfillment work.
relationship with each of the Company's technicians
starts once the technician is qualified to do DISH work
orders and when the technician accepts routes through
Satellite Country. The technicians do not have an exclusive
relationship with the Company, and the Company does not
prohibit the technician from working for DISH directly.
Although Satellite Country contends that the technicians are
not prohibited from working for other subcontracting
companies who have a similar relationship with DISH, some of
the technicians testified that the nature of the work
effectively prevented them from doing so. Additionally,
Satellite Country's manager, Derrick Wright, testified
that technicians could not perform DISH work concurrently for
is some question whether technicians must have formed an LLC
prior to accepting work from Satellite Country. Although many
of the technicians formed LLCs prior to contracting with the
Company, and Satellite Country helped others do so, at least
one technician testified that not all technicians were
required to form LLCs.
technicians who accept routes through Satellite Country work
for less than six (6) months. Each of the technicians is
responsible to (a) maintain his or her vehicle, (b) purchase
the fuel for his or her vehicle; (c) purchase and maintain
his or her tools, (d) have materials on hand necessary to
complete accepted work orders, (e) purchase and maintain
equipment necessary to complete accepted work orders, and (f)
ensure the completion of work orders is done accurately and
completely in line with DISH requirements. The technicians
perform their work at the residence of a DISH customer.
were required by Satellite Country to report to the warehouse
by 6:00 a.m. to collect materials and attend a meeting before
receiving schedules. Additionally, technicians are required
to perform jobs within the time slots given. They are also
required to receive work orders until 5:00 p.m. and to
provide advance written notice if they are taking time off.
last several years, including the collective period,
Satellite Country's HUB managers have helped to
facilitate the routing of DISH work orders to the technicians
once DISH has indicated its needs on a given day. The HUB
managers also assist the technicians with obtaining the
appropriate equipment needed for the work orders.
Country requires that technicians wear a uniform; identify
themselves as representatives of Satellite Country; and drive
a certain model, color, and year vehicle.
the base rate of pay for a given work order is established by
DISH within a given market, Satellite Country sets up a tier
system that allocates a portion of that base rate to
technicians who do DISH work orders through the company.
Technicians are paid for the successful completion of work
orders through a piece meal compensation system. Compensation
for completion of work orders to the technicians is
determined by the efficiency of completed DISH work orders,
the procurement of tools, materials and equipment, management
of expenses, and the accuracy and quality of their work.
Satellite Country determines whether to pay technicians
higher compensation based on completion of DISH work orders
with a high level of accuracy and quality.
19, 2019, Defendants filed the instant Motion for Summary
Judgment, contending that none of the three Defendants is an
employer as defined by the FLSA and case law interpreting it.
August 9, 2019, Plaintiffs filed a Memorandum in Opposition
to the Motion for Summary Judgment [Doc. No. 130], disputing
the evidence relied upon by Defendants and arguing that there
are genuine issues of material fact for trial that the three
Defendants are employers under the FLSA.
August 21, 2019, Defendants filed a Reply Memorandum [Doc.
matter is now ripe, and the Court is prepared to rule.
LAW AND ANALYSIS
Standard of Review
a worker is an employee for FLSA purposes is a question of
law. Parrish v. Premier Directional Drilling, L.P.,
917 F.3d 369, 377 (5th Cir. 2019) (citing Brock v. Mr. W
Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir. 1987)).
judgment is appropriate when the evidence before a court
shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting
Anderson, 477 U.S. at 247). “The moving party
may meet its burden to demonstrate the absence of a genuine
issue of material fact by pointing out that the record
contains no support for the non-moving party's
claim.” Stahl v. Novartis Pharm. Corp., 283
F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant
is unable to identify anything in the record to support its
claim, summary judgment is appropriate. Id.
“The court need consider only the cited materials, but
it may consider other materials in the record.”
evaluating a motion for summary judgment, courts “may
not make credibility determinations or weigh the
evidence” and “must resolve all ambiguities and
draw all permissible inferences in favor of the non-moving
party.” Total E & P USA Inc. v. Kerr- McGee Oil
and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013)
(citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party, ” an
actual controversy exists only “when both parties have
submitted evidence of contradictory facts.” Little
v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). To rebut a properly supported motion for summary
judgment, the opposing party must show, with
“significant probative evidence, ” that
a genuine issue of material fact exists. Hamilton v.
Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(emphasis added). “‘If the evidence is merely
colorable, or is not significantly probative,' summary
judgment is appropriate.” Cutting Underwater Tech.
USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517
(5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
there can be no genuine dispute as to a material fact when a
party fails “to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex Corp., 477 U.S. at 322-23.
This is true “since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323.
determinations of employment status are “‘very
fact dependent.'” Parrish, 917 F.3d at 380
(quoting Carrell v. Sunland Constr., Inc., 998 F.2d
330, 334 (5th Cir. 1993)). A summary judgment “on FLSA
employee status can be granted when ‘there are facts
pointing in both directions,' Carrell, 998 F.2d
at 334, so long as they do not generate a genuine dispute of
material fact.” Parish, 917 F.3d at 380.
seek damages for unpaid compensation under the FLSA. They
have named McCue, Jenkins, and Satellite Country as
Defendants because they were allegedly
“employers” under the FLSA. Defendants move the
Court for summary judgment, contending that Plaintiffs cannot
establish that any of the three Defendants is an employer
under the FLSA.
FLSA mandates that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). An
“‘[e]mployer' includes any person acting
directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d).
The definition of employee under the FLSA is particularly
broad. See Nationwide Mut. Ins. Co. v. Darden, 503
U.S. 318, 326 . . . (1992) (noting that the FLSA
“stretches the meaning of ‘employee' to cover
some parties who might not qualify as such under a strict
application of traditional agency law principles”). To
determine if a worker qualifies as an employee, we focus on
whether, as a matter of economic reality, the worker is
economically dependent upon the alleged employer or is
instead in business for himself. Herman v. Express
Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299, 303
(5th Cir. 1998). To aid us in this inquiry, we consider five
non-exhaustive factors: (1) the degree of control exercised
by the alleged employer; (2) the extent of the relative
investments of the worker and the alleged employer; (3) the
degree to which the worker's opportunity for profit or
loss is determined by the alleged employer; (4) the skill and
initiative required in performing the job; and (5) the
permanency of the relationship. Id. No ...