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Renteria-Camacho v. Directv, Inc.

United States District Court, D. Kansas

October 16, 2017

ROLANDO RENTERIA-CAMACHO, Plaintiff,
v.
DIRECTV, INC. and DIRECTV, LLC, Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         This matter comes before the court upon defendants DIRECTV and DIRECTV, LLCs' Motion for Summary Judgment (Doc. 68).[1] Plaintiff Rolando Renteria-Camacho seeks to benefit from the unpaid overtime and minimum wage protections of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219.

         Defendant seeks summary judgment for seven reasons: (1) plaintiff was an independent contractor not an employee of defendant and therefore not entitled to overtime compensation; (2) plaintiff cannot show that defendant was his employer; (3) plaintiff has no evidence that defendant knew or should have known he was working overtime without compensation; (4) another judge in this district found that technicians installing DIRECTV systems who were paid by the job are exempt from overtime (5) plaintiff cannot prove the amount of unpaid overtime work he did because he made no record of it; (6) any work completed before September 5, 2010 is time barred by the FLSA's two-year statute of limitations. The FLSA's three-year statute of limitations only applies to willful violations and plaintiff cannot prove that defendant willfully denied him overtime compensation; and (7) plaintiff is barred from bringing suit by the doctrine of unclean hands because he fraudulently obtained a technician identification number and worked for defendant under a false identity. For the reasons explained below, defendant's motion is denied.

         I. Facts

         The following facts were stipulated in the parties' pretrial order, or in their briefing:

         Defendant is the leading provider of satellite television entertainment services in the United States. Defendant uses contracting companies or subcontractors who engage technicians to install and service DIRECTV systems. As of 2015 about half of defendant's installations are outsourced. Defendant uses some W-2 employees, some W-2 employees of other entities, and some independent contractors to complete work. Defendant uses a computer program called SIEBEL to manage work orders (installations, service, calls, or upgrades) for customers and ensure they are completed. Once a sale is made to a customer, a work order is created in SIEBEL. Customers book appointment windows and SIEBEL assigns work to technicians based on individual technicians' “Tech ID Numbers.”

         SIEBEL is not a timekeeping system. It books appointments based on estimated duration for each work order and does not necessarily reflect the amount of time spent by an individual technician on that job. Sometimes technicians complete work orders with another tech's ID number. Speedy Communications, LLC (“Speedy”) and Quest Integrated Systems, Inc. (“Quest”), as supervisors, were sometimes able to redistribute work by having technicians complete work orders assigned to other techs' ID numbers. SIEBEL uses timestamps when work orders are started and completed, but these timestamps are not necessarily accurate if a technician does not check in or out when a job is completed.

         Defendant had written Service Provider Agreements (“SPAs”) with Speedy and Quest. The SPAs provided that Speedy and Quest were contractors and would fulfill work orders for the installation and servicing of DIRECTV systems. The SPAs were intended to create an independent contractor relationship between defendant and Speedy and Quest. The SPAs included quality and technical requirements that applied to Speedy and Quest's subcontractors and technicians. Speedy and Quest then hired independent contractors to do work orders.

         Plaintiff worked as a technician installing, repairing, and upgrading defendant's satellite systems between March 2009 and July 2011. He worked for Speedy between March 2009 and August 2010. Then he worked for Quest until July 2011, when he went in-house for defendant so that he could take advantage of the benefits offered to in-house technicians.

         Defendant promulgates instructions for installations that it provides all contractors. Defendant requires all contractors who perform work on satellite television services to have the Satellite and Broadcast Communications Association certification. While he was working for Speedy and Quest, plaintiff never received instructions from a DIRECTV employee about how to do his job. He also did not receive memos, policies or other communications from defendant while he was working for Speedy and Quest. Plaintiff's supervisor at Speedy was the only person who conducted a quality control inspection of his work while he was still on site. When he was working for Quest, plaintiff's supervisor lived in Oklahoma and they only spoke once a week.

         If plaintiff was late for an appointment he would contact the customer. If he had wanted to take a day off, he would have contacted his supervisor at either Quest or Speedy. Plaintiff was paid directly by Speedy or Quest, not by defendant. He was paid pre-set, fixed amounts for performing different types of work orders (basic installations, installations of additional receivers, upgrades, and service calls). Speedy and Quest decided what to pay plaintiff for his work. Plaintiff received 1099 tax forms from Speedy and Quest when he was working for them. When he started working in-house for defendant, he received W-2 forms.

         Plaintiff purchased materials, such as cabling, from Speedy and Quest after shopping around. He chose to purchase a Toyota Tacoma for about $14, 000 to use as a work vehicle, taking into consideration fuel efficiency. He procured and paid for his own insurance on the truck. He also had to have a fax machine, computer with internet, cell phone, signal meter, GPS, and certain work attire to complete DIRECTV work orders. Plaintiff owned these items and did not ask to be reimbursed for them. He did get tax deductions for at least some of these expenses. Plaintiff claims that he worked between 50 and 60 hours per week on average.

         II. Legal Standard

         A. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The party moving for summary judgment has the burden to show “the lack of a genuine issue of material fact.” Ascend Media Prof'l Servs., LLC v. Eaton Hall Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))). The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find for him. Ascend Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)).

         III. Discussion

         As mentioned above. Defendant seeks summary judgment on seven grounds. The court will address each in turn.

         A. Whether Plaintiff was an Employee or Independent Contractor

         The FLSA creates a cause of action against employers who violate the overtime and minimum wage compensation requirements mandated by the Act. In the Act “employer” is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .” § 203(d). An “employee” is generally any individual employed by an employer. § 203(e)(1). “Employ” is defined to include “to suffer or permit to work.” § 203(g).

         The Tenth Circuit applies an “economic realities” test to determine whether a person is a statutory employee as defined by the FLSA or an independent contractor. Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012). The test “seeks to look past technical, common-law concepts of the master and servant relationship to determine whether, as a matter of economic reality, a worker is dependent on a given employer. Id. (citing Baker v. Flint Eng'g & Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998)). The test focuses on whether “the individual is economically dependent on the business to which he renders service, or is, as a matter of economic fact, in business for himself.” Id. (quoting Doty v. Elias, 733 F.2d 720, 722-23 (10th Cir. 1984) (emphasis in original)).

         Courts use a totality-of-the-circumstances approach when applying the economic realities test. Some factors the court may consider are:

(1) the degree of control exerted by the alleged employer over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which the work is an integral part of the alleged employer's business.

Id. (quoting Baker, 137 F.2d at 1440).

         The court finds that issues of material fact remain as to plaintiff's employment status. The court notes, as others in this district have, that courts across the country have reached varying results at summary judgment and after bench trials in similar cases. Matrai v. DirecTV, LLC, 168 F.Supp.3d 1347, 1353-54 (D. Kan. 2016) (quoting Thornton v. Mainline Commc'ns, LLC, 157 F.Supp.3d 844, 848-49 (E.D. Mo. 2016) (noting that the analysis is fact intensive and that each court must determine the status of the employment relationship before them)). The court finds that in this case, the parties disagree on material facts as well as which facts are important to the court's analysis.

         Degree of Control

         When an individual acts autonomously or with some degree of independence this tends to show that ...


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