United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court upon defendants DIRECTV and
DIRECTV, LLCs' Motion for Summary Judgment (Doc.
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.
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
following facts were stipulated in the parties' pretrial
order, or in their briefing:
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
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.
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.
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.
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.
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.
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.
Summary Judgment Standard
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
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)).
mentioned above. Defendant seeks summary judgment on seven
grounds. The court will address each in turn.
Whether Plaintiff was an Employee or Independent
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).
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)).
use a totality-of-the-circumstances approach when applying
the economic realities test. Some factors the court may
(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
Id. (quoting Baker, 137 F.2d at 1440).
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.
individual acts autonomously or with some degree of
independence this tends to show that ...