Sigui v. M Communications, Inc.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         Before 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, ^[1] the Court ACCEPTS the R&R and adopts its recommendations and reasoning. See 28 U.S.C. § 636(b)(1).

         First, 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.^[2] 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)).

         Next, 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.”).

         To 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.

         Plaintiffs' 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.^[3] 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 identical facts.

         The 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.”).

         Perez 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 Cir. 2003))).

         What 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.

         Accordingly, the Court GRANTS Cox's Motion for Summary Judgment (ECF No. 83). Plaintiffs' Cross-Motion for Summary Judgment (ECF No. 89) is therefore DENIED.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          Lincoln D. Almond, United States Magistrate Judge.

         Pending 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) be DENIED.

         I. Facts

         Cox 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.

         Since 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.

         M is 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.

         M has 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).

         Plaintiff 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.

         Cox did 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 ¶ 48.

         M 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).

         Cox 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 ...