United States District Court, D. Rhode Island
JUAN SIGUI; JOSE SIGUI; JOSE CIPRIANO; JOSEPH MENDEZ; JOSE L. SANTOS; and ANTHONY R. KERN, individually and on behalf of other similarly situated individuals, Plaintiffs,
M M COMMUNICATIONS, INC., alias; COX RHODE ISLAND TEL[ECOM, LLC, d/b/a COX COMMUNICATIONS, alias; and COXCOM, LLC, d/b/a COX COMMUNICATIONS NEW ENGLAND, alias; and WILLIAM DOWLING, alias, Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
the Court is Magistrate Lincoln D. Almond's Report and
Recommendation (“R&R”) (ECF No. 113)
recommending that the Court grant Defendants Cox Rhode Island
Telecom, LLC's and CoxCom, LLC's (collectively,
“Cox”) Motion for Summary Judgment (ECF No. 83)
and deny Plaintiffs' Cross-Motion for Partial Summary
Judgment (ECF No. 89). Plaintiffs timely objected to the
R&R (ECF No. 114) (“Objection”). After
careful review of the R&R, Plaintiffs' Objection, and
the relevant papers,  the Court ACCEPTS the R&R and adopts
its recommendations and reasoning. See 28 U.S.C.
Plaintiffs argue that Magistrate Judge Almond contravened his
duty to draw all reasonable inferences in favor of Plaintiffs
(as the nonmovants) in construing Cox's Motion for
Summary Judgment. (Pls.' Mem. in Support of Obj. to R.
& R. (“Pls.' Obj.”) 2.) Specifically,
Plaintiffs posit that, “the R&R ignores all 265 of
Plaintiffs' proffered undisputed facts-most of which are
not disputed by Cox-and all but 8 of Plaintiffs' 104
disputed facts.” (Id. at 14.) Plaintiffs
appear to suggest that, when reviewing Cox's Motion for
Summary Judgment, in addition to considering Cox's
Statement of Undisputed Facts and Plaintiffs' responsive
Statement of Disputed Facts, the magistrate judge must also
consider Plaintiffs' Statement of Undisputed Facts
submitted in support of their cross-motion for summary
judgment. (See id.) Plaintiffs' argument is a
nonstarter. Magistrate Judge Almond, as he was required to
do, considered the factual record attached to Cox's
motion in the light most favorable to Plaintiffs.
(See R. & R. Part I.) In this context, the
presence of cross-motions for summary judgment does not alter
the applicable framework. Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003). That is, “the
court must mull each motion separately, drawing inferences
against each movant in turn.” Id. (citing
Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996)).
Magistrate Judge Almond appropriately viewed the factual
record set forth by Cox's motion, composed of Cox's
Statement of Undisputed Facts and Plaintiffs' responsive
Statement of Disputed Facts, through which Plaintiffs
conceded several facts by either not responding at all or not
responding with sufficient substance. See DRI LR 56(a)(3)
(“[A]ny fact alleged in the movant's Statement of
Undisputed Facts shall be deemed admitted unless
expressly denied or otherwise controverted by a party
objecting to the motion.” (emphasis added)).
Plaintiffs posit that Magistrate Judge Almond
“[i]mproperly relie[d] on other cases involving
telecommunications installers, which are based on different
facts and assumes that because in those cases a particular
indicia of control, standing alone, did not indicate a
joint-employer relationship[, ] no combination of those
indicia could lead to a determination that a joint-employer
relationship exists.” (Pls.' Obj. 2.) This specific
averment goes hand in hand with a larger theme that fills
Plaintiffs' fifty-seven-page objection: a suggestion that
Magistrate Judge Almond neglected to consider the totality of
the circumstances. (See, e.g., id. at 9-13,
16-17, 55-56.) Contrary to Plaintiffs' characterization
of the R&R, Magistrate Judge Almond conducted what the
Plaintiffs correctly recognize is required: a
“pragmatic, holistic, totality-of-the-circumstances,
economic-reality approach for joint-employment . . . .”
(Pls.' Obj. 9-10.); see also Baystate Alternative
Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir.
1998) (“[T]o determine whether an employment
relationship exists . . . courts look . . . to the
‘economic reality' of the totality of the
circumstances bearing on whether the putative employee is
economically dependent on the alleged employer.”).
break down Plaintiffs' argument, it is helpful to start
with the basics. This is important because Plaintiffs'
suggestion that Magistrate Judge Almond applied the incorrect
standard is premised upon a fundamental misconception of what
that standard is. To be certain, the applicable standard in
this context dictates that, “it is the totality of the
circumstances, and not any one factor, which determines
whether a worker is the employee of a particular alleged
employer.” Baystate, 163 F.3d at 676;
accord Rutherford Food Corp. v. McComb, 331 U.S.
722, 730 (1947) (“[T]he determination of the
[employer-employee] relationship does not depend on such
isolated factors but rather upon the circumstances of the
whole activity.”). In other words, using the
four-factor standard adopted in Baystate as a guide,
the court must holistically consider the case's
circumstances to decipher whether the “‘economic
reality' of the situation” aligns with an
employer/employee relationship. 163 F.3d at 675-77. This is
precisely what Magistrate Judge Almond did. And his holistic
analysis lead to the correct conclusion.
Objection to the R&R reveals that Plaintiffs' problem
is not the standard applied but the conclusion reached. This
Court has the benefit of not writing on a blank canvas; many
courts have considered nearly identical arguments in nearly
identical factual circumstances. See generally,
e.g., Crosby v. Cox Commc'ns, Inc., No. CV
16-6700, 2017 WL 1549552 (E.D. La. May 1, 2017);
Gremillion v. Cox Commc'ns Louisiana, No. CV
16-9849, 2017 WL 1321318 (E.D. La. Apr. 3, 2017); Roslov
v. DirecTV Inc., 218 F.Supp.3d 965 (E.D. Ark. 2016);
Thornton v. Charter Commc'ns, LLC, No. 4:12CV479
SNLJ, 2014 WL 4794320 (E.D. Mo. Sept. 25, 2014); Zampos
v. W & E Commc'ns, Inc., 970 F.Supp.2d 794 (N.D.
Ill. 2013); Valdez v. Cox Commc'ns Las Vegas,
Inc., No. 2:09-CV-01797-PMP, 2012 WL 1203726 (D. Nev.
Apr. 11, 2012); Lawrence v. Adderley Indus., Inc.,
No. CV-09-2309 SJF ETB, 2011 WL 666304 (E.D.N.Y. Feb. 11,
2011); Smilie v. Comcast Corp., No. 07-CV-3231, 2009
WL 9139890 (N.D. Ill. Feb. 25, 2009); Jacobson v. Comcast
Corp., 740 F.Supp.2d 683 (D. Md. 2010); Herman v.
Mid-Atl. Installation Servs., Inc., 164 F.Supp.2d 667
(D. Md. 2000), aff'd sub nom. Chao v. Mid-Atl.
Installation Servs., Inc., 16 F. App'x 104 (4th Cir.
2001); Santelices v. Cable Wiring, 147 F.Supp.2d
1313 (S.D. Fla. 2001). Each of those courts, in considering
the totality of the circumstances of substantially analogous
facts, granted summary judgment for the defendant-cable
company. Magistrate Judge Almond considered these decisions,
where other federal district courts principally tested the
facts and arguments against the same four-factor standard.
And he correctly deemed them highly persuasive. Like
Magistrate Judge Almond, this Court finds these cases highly
persuasive, and Plaintiffs have not convincingly explained
why the circumstances of this particular case are any
different than the near-dozen cases in which summary judgment
was granted on the issue of joint-employment on practically
best Plaintiffs can do is to exclusively rely on an outlier
case, Perez v. Lantern Light Corp., No. C12-01406
RSM, 2015 WL 3451268 (W.D. Wash. May 29, 2015). (See,
e.g., Pls.' Obj. 13-19, 23, 28, 31, 40, 47.) Alas,
the persuasiveness of this case does not increase with the
number of times Plaintiffs cite to it in their objection.
Plaintiffs suggest that Magistrate Judge Almond, in refusing
to follow this case's reasoning, “[i]mproperly
reject[ed] the most authoritative and factually apposite case
. . . merely because M's contract with Cox was not
exclusive, even though M has never worked for another cable
company and is totally economically dependent upon Cox . . .
.” (Pls.' Obj. 2.) But each fact that Plaintiffs
attach significance to from Perez is present in
abundance in the other cases in which summary judgment was
granted, and - as Magistrate Judge Almond recognized - this
case is factually distinguishable from Perez in more
fundamental and material ways. (See R. & R. 18
n.2.); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (“As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.”). For instance,
Plaintiffs pinpoint a “laundry list of similar
facts” shared between the instant case and
Perez, including, among other things, Cox requiring
background checks, qualifications to install cable,
collecting quality control data on installers, requiring
uniforms, badges, and logos on vehicles, and providing
payment on a “piece rate.” (Pls.' Obj. 15.)
Just as these facts did not compel the conclusion that cable
companies were joint employers in other, factually similar
cases, they do not do so here. See, e.g.,
Crosby, 2017 WL 1549552, at *5 (“But simply
requiring a background check has not been found sufficient to
conclude that a communication company possesses authority to
hire and fire.”); id., at *7 (“[T]he
purpose of identifying Cox on the technician's badge and
vehicle is to ensure customer safety and the purpose of the
surveys and quality control checks is to ensure satisfaction
of Cox customers. These examples do not amount to day to day
supervision or control of a . . . technician's schedule
or working conditions.”); Zampos, 970
F.Supp.2d at 804 (“Plaintiffs argue that Comcast plays
a significant role in determining how much W & E
technicians are paid simply because it pays W & E on a
per service basis, itemizes how long work tasks should take,
and associates point value and hourly rates for each job. The
Court rejects this argument.”); Jacobson, 740
F.Supp.2d at 692 (“An employee's income, received
from its direct employer, will always be determined and
influenced by what a contractor decides to pay the direct
employer for services rendered by the employee.”);
id. at 690 (“Therefore, detailed instructions
and a strict quality control mechanism will not, on their
own, indicate an employment relationship.”).
is distinguishable in more significant ways. Despite
Plaintiffs' attempt to minimize this fact, as Magistrate
Judge Almond recognized, it matters that this case lacks the
“exclusivity language” present in Perez.
2015 WL 3451268, at * 6 (noting DirecTV “Services
Provider Agreement” included “exclusivity
language” that “forbade [installation company]
and its Installers from serving companies offering comparable
programming or television services”); cf.
Crosby, 2017 WL 1549552, at *5 (“Importantly,
because the contract with Cox is not exclusive, [the
installation company] is not precluded from obtaining other
installation work . . . .” (emphasis added)). Here too,
it is undisputed that the installation company, M, could
have chosen to contract with other cable companies.
(Compare Pls.' Statement of Disputed Facts, ECF
No. 88-2, with Cox's Statement of Undisputed
Facts, ECF No. 84, ¶ 17.) Like the many courts before it
to consider - and reject - Plaintiffs' exact argument,
the Court is not persuaded that Cox is a joint employer of
M simply because M chose to only perform work for Cox.
(See Pls.' Obj. 16); see also Thornton,
2014 WL 4794320, at *2 (granting summary judgment despite
that cable company was installation company's only
customer where “the Agreement did not bar [installation
company] from contracting with other cable or satellite
installation companies”); Zampos, 970
F.Supp.2d at 805 (“W & E's apparent dependence
on Comcast simply does not translate into functional control
by Comcast over W & E technicians.”);
Jacobson, 740 F.Supp.2d at 693 (“Installation
Companies work primarily, if not exclusively, for Comcast.
However, . . . a single client base is not a proxy for joint
employment because it is ‘perfectly consistent with a
legitimate subcontracting relationship.'” (quoting
Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d
remains of Plaintiffs' Objection is simply a parroting of
arguments previously made to Magistrate Judge Almond -
arguments that he appropriately rejected. While review of the
Magistrate Judge's R&R is de novo, it is not an
opportunity to re-run every argument made to the Magistrate
Judge. See Sackall v. Heckler, 104 F.R.D. 401,
402-03 (D.R.I. 1984) (“[I]f the magistrate system is to
be effective, and if profligate wasting of judicial resources
is to be avoided, the district court should be spared the
chore of traversing ground already plowed by the magistrate
[judge] except in those areas where counsel . . . can in good
conscience complain to the district judge that an objection
to a particular finding or recommendation is ‘well
grounded in fact and is warranted by existing law . . .
.'” (quoting Fed.R.Civ.P. 11)); see also
Gonzalez-Ramos v. Empresas Berrios, Inc., 360 F.Supp.2d
373, 376 (D.P.R. 2005) (“The objections . . . are not
to be construed as a second opportunity to present the
arguments already considered by the
Magistrate-Judge.”). Magistrate Judge Almond considered
the totality of the circumstances of this case in the light
most favorable to Plaintiffs through the four-factor test
from Baystate. (See R. & R. 15-22.) In
spite of Plaintiffs' Objection, the Court is satisfied
with his analysis and adopts it. The Court has considered
Plaintiffs' other arguments, which it deems unpersuasive.
the Court GRANTS Cox's Motion for Summary Judgment (ECF
No. 83). Plaintiffs' Cross-Motion for Summary Judgment
(ECF No. 89) is therefore DENIED.
Lincoln D. Almond, United States Magistrate Judge.
before me for a report and recommendation (28 U.S.C. §
636(b)(1)(B)) are Defendant Cox Rhode Island Telecom, LLC and
Coxcom, LLC's (collectively “Cox”) Motion for
Summary Judgment (ECF Doc. No. 83) and Plaintiffs'
Combined Cross-Motion for Summary Judgment and Objection to
Cox's Motion. (ECF Doc. No. 89). In this Motion, Cox
maintains that, as a matter of law, it was not
Plaintiffs' employer under either the Fair Labor
Standards Act (“FLSA”) or the Rhode Island
Minimum Wage Act (“RIMWA”), and thus it must be
dismissed as a Defendant in this lawsuit. For the following
reasons, I recommend that Cox's Motion (ECF Doc. No. 83)
be GRANTED and Plaintiffs' Cross-Motion (ECF Doc. No. 89)
provides cable, telephone, internet and communication
services to residents and businesses in the state of Rhode
Island and throughout parts of the United States. (ECF Doc.
No. 84 at ¶ 1). Third-party cable installation companies
provide installation and maintenance services to Cox's
customers. Id. at ¶ 2. Cox customers buy
services and cable equipment from Cox in order to have access
to television, internet and/or telephone services in their
homes. Id. at ¶ 3. M, founded in 1996, is
engaged in the cable, Internet, telephone and
telecommunications installation business. Id. at
¶ 4. Cox contracted with M to perform installation and
maintenance services on cable television, internet, telephone
lines and equipment to Cox customers throughout Rhode Island.
Id. at ¶ 5.
2011, Cox entered into four Field Service Agreements
(“FSAs”) with M, each of which governed the
terms of their business relationship. Id. at ¶
6. Under the terms of the FSA, M provided installation and
maintenance services to Cox through M's Field Service
Technicians (hereinafter “Technicians”).
Id. at ¶ 7. The FSAs between Cox and M stated
that M's Technicians were independent contractors and
not employees of Cox. Id. at ¶ 8. The FSAs also
state that “[c]ontractor's obligations to comply
with Applicable Laws does not create the relationship of
employer-employee between Cox and either Contractor or any of
Contractor's Personnel.” Id. at ¶ 10.
The FSAs state that neither M, “nor its Personnel is,
nor shall become, Cox's employee or agent, and that this
Agreement does not establish a partnership or joint venture
between either Contractor and Cox or Contractor's
Personnel and Cox.” Id. at ¶11. Cox and
M each have their own owners, officers, directors,
managers, supervisors, policies and procedures. Id.
at ¶ 12. Cox has no ownership interest or financial
interest in M, and M has no ownership interest or
financial interest in Cox, nor does Cox reimburse M for any
of its business expenses. Id. at ¶ 13.
owned by Michael Jackman and was managed by Defendant William
Dowling (“Dowling”), General Manager, at all
relevant times. Id. at ¶ 14. M's facility
is located in Warwick, Rhode Island and also has related
operations throughout the United States. Id. at
¶ 15. Cox required M to store the materials necessary
to perform work for Cox at M's facility; and to ensure
it was properly staffed, climate controlled and
fire-protected. (ECF Doc. No. 88-2 at ¶ 15). Cox's
Rhode Island facility is located in West Warwick, Rhode
Island; M does not have any interest in Cox's offices.
(ECF Doc. No. 84 at ¶ 16). M is not required to work
only for Cox. Id. at ¶ 17. Although M is not
required to work only for Cox, M has worked solely for Cox
since 2011. Id. at ¶ 18.
its own dispatch personnel and supervisory personnel who work
with and monitor M's Technicians; none of M's
employees are directly employed by Cox or report to anyone
employed by Cox. Id. at ¶ 19. Cox monitored
M's compliance with its requirements by holding weekly
meetings with Dowling. (ECF Doc. No. 88-2 at ¶ 19). M
develops its own personnel policies; these personnel policies
differ from Cox's personnel policies. (ECF Doc. No. 84 at
¶ 20). During its contractual relationship with Cox, M
provided services to Cox through skilled Technicians
(including many Technicians with prior cable installation
experience) who were hired or contracted solely by M.
Id. at ¶ 21. The FSA set forth certain
standards that a potential M hire must meet including:
passing a background check, drug screening, identifying
verification and various other requirements. (ECF Doc. No.
88-2 at ¶ 3). At all relevant times, Cox had the
authority to, “at any time without cause upon at least
fourteen (14) days' prior written notice to Contractor,
” terminate its relationship with M. (ECF Doc. No. 84
at ¶ 22).
Juan Carlos Sigui worked with M as a Technician in June
2010 and was fired by Dowling, M's General Manager, in
2012; was again hired by M by Dowling shortly thereafter in
2012 and worked as a Technician for M until he was again
fired by Dowling in May 2014. Id. at ¶ 23.
Plaintiff Jose Sigui worked with M as a Technician from
2010 until he was fired by Dowling on May 10, 2014.
Id. at ¶ 24. Plaintiff Jose Santos worked with
M as a Technician from 2009 to 2014, when he submitted his
voluntary resignation to M. Id. at ¶ 25.
Plaintiff Joseph Mendez worked with M as a Technician from
February 2009 until early 2013 when he was terminated from
M by Dowling; Joseph Mendez was again hired by M shortly
thereafter in early 2013 and remained at M as a Technician
until he was fired by Dowling on January 17, 2014 for
refusing to drive a route to western Rhode Island.
Id. at ¶ 26. Jose Cipriano worked with M as a
Technician from 2010 until he was fired from M by Dowling
in May 2014. Id. at ¶ 28.
not hire, or instruct M to hire, M's Technicians, nor
did it have the authority to do so. Id. at ¶
32. Plaintiffs completed M applications to work for M.
Id. At ¶ 33. Plaintiffs submitted their
completed applications to M, not Cox. Id. at
¶ 34. Plaintiffs submitted resumes, if any, to M, not
Cox. Id. at ¶ 35. Plaintiffs did not submit any
documents of any kind to Cox during their application process
with M. Id. at ¶ 36. Once an individual was
hired by M, Cox stored their name and unique Identification
Number, as well as results from the “Qualified Cox
Contractor Requirements Program, ” including various
background checks. (ECF Doc. No. 88-2 at ¶ 36).
Plaintiffs were interviewed, if at all, by Dowling at
M's facilities. (ECF Doc. No 84 at ¶ 37).
Plaintiffs were not interviewed by any Cox employee nor were
their interviews conducted on Cox's premises.
Id. at ¶ 38. Plaintiffs did not speak with any
Cox employee during the hiring process by M. Id.
at ¶ 39. Plaintiffs were hired by Dowling to work as
Technicians for M. Id. at ¶ 40. No Cox
employee hired Plaintiffs to work for M. Id. at
¶ 41. After being hired by M, M Technicians signed
paperwork prepared by M and submitted new hire paperwork to
M, not Cox. Id. at ¶ 42. After being hired by
M, but before performing work for Cox customers, Plaintiffs
completed a criminal background check and drug screening to
ensure the safety of Cox's customers. Id. at
¶ 43. After being hired by M, but before performing
work for Cox customers, M Technicians were required to meet
the Cox Qualified Contractor Requirements Program, which
required that they take a certification exam at M's
facility. Id. at ¶ 44. For an M Technician to
be authorized to perform work for Cox customers, the M
Technician was required to submit to a criminal background
check, drug screen and certification, as well as other tests
within Cox's discretion. Id. at ¶ 45; (ECF
Doc. No. 88-2 at ¶ 45). The criminal background check
and drug screening are performed by a third-party vendor,
InfoMart, who provides the results of such testing to M,
not Cox. (ECF Doc. No. 84 at ¶ 46). M informed Cox
that Plaintiffs satisfactorily completed the background
check, drug screen and certification process, and Cox then
authorized Plaintiffs to perform work for Cox's
customers. Id. at ¶ 47. Cox then issued
technician numbers and identification badges. Id. at
fired Plaintiffs, and other M Technicians, without first
advising Cox and without Cox's input. Id. at
¶ 49. No Plaintiff was fired by a Cox employee.
Id. at ¶ 51. Cox did not have the authority to
terminate, nor did it suggest M terminate, any
Plaintiff's relationship with M; rather, Cox only had
the authority to de-authorize an M Technician from
performing services for Cox “if there is a violation of
law, a customer grievance or other reason affecting the
safety of Cox's customers or the quality of Cox's
services…” Id. at ¶ 52. M was
free to retain any Technician de-authorized by Cox to serve
in another capacity for M. Id. at ¶ 52(a).
customers in need of Cox services contacted Cox, by telephone
or on the Internet, to request services. Id. at
¶ 53. Cox's customers decide on a two-hour window of
time for a service call. Id. at ¶ 54. After a
customer requests services, a work order for each request is
generated in ICOMS, Cox's billing system. Id. at
¶ 56. Only M Managers and Dispatchers - not M
Technicians - have access to ICOMS. Id. at ¶
57. M would report to Cox on a daily basis with respect to