United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
SHARION AYCOCK, District Judge.
Presently before the Court is Plaintiff's Motion for Summary Judgment . For the reasons set forth below, the motion for summary judgment is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Based on the current record before the Court, the pertinent and undisputed facts are as follows:
Plaintiff Jerry Hill began working as a soliciting bail agent for Defendant Cobb Bail Bonding Co. ("Cobb Bail Bonding") at some point in the fall of 2010. Hill was hired by Sandra Cobb ("Cobb"), who is the owner and manager of Cobb Bail Bonding. Prior to working for Cobb Bail Bonding, Hill had worked as an agent with another bail agency for approximately ten years and came to Defendant without need for significant training. While working for Defendant, Hill continued to work on an inconsistent basis for one to two unrelated non-bonding enterprises. In his capacity as a bail agent, Hill was able to dictate his own work schedule. According to the unrebutted testimony, Hill's pay was dictated on a straight commission basis, although the specific terms of that arrangement are contested.
As described by Cobb, Hill was entitled to take a commission on every bond he wrote for the company. As she articulated: "bail bondsmen is an independent contractor. There's no such thing as minimum wage. You try to call to take me to minimum wages. Okay? If you wrote one bond a week, it's because you want to write that one bond a week; but it's not considered a labor act law, because you're a bail bondsmen [sic]. Bail bondsmen does not apply to that, because you get paid on percentage. Okay?" Although Hill had significant control over his office hours and the number of bonds he wrote, Cobb continued to maintain significant control over the individual bail agents and their duties.
As she described the situation, individual soliciting agents are unable to issue a bond in their individual capacity without the backing of the bond company. According to Cobb, "It's- when you get the power of the bond, okay, when you use the power of the bond, you take it over to the jail. And the jail knows that your name is up under that agent-that company name... and they'll accept that bond." As such, Cobb had significant authority to dictate how the agents performed their duties, and required each agent to obtain her approval before issuing a bond for any amount in excess of $3, 000. Cobb provided the agents with a specific contract and application to use when agents issued bonds for the company and had specific demands regarding procedures that needed to be followed.
As Cobb recalled, although soliciting agents received training from state-sponsored classes, she gave additional instruction and training. Cobb stated:
[S]ometimes I have to overturn [the outside instructors] because every sheriff is running his town differently. If the sheriff tells you one-you know, I'm not going to accept this, then you've got to go by what the sheriff say, no matter what we was taught in class... and bail bondsmen-some would listen to them and say, [w]ell, the sheriff said this; and, well, you got to fight that-no, you can't fight that sheriff in this town. This sheriff will get you out of his town. You abide by his law.
Because Cobb was required to ultimately take the responsibility for the bonds issued by her agents, she had an acute interest in monitoring their practices. As she testified, "the judge is never going to request for a bail bondman or secretary to come into court. They always request for that owner. So we have to be in court, especially to make sure that our client's there, because we're a big bail bonding-we're a company that writes big bonds." Cobb remained vigilant over the inter-office workings of the company as well, exclusively retaining the power to hire and fire employees and set their rate of pay.
Contending that he was an employee of Cobb Bail Bonding, Hill filed the present action under the Fair Labor Standards Act ("FLSA") in an attempt to recoup unpaid wages and overtime purportedly owed to him by Defendants. Plaintiff has now filed the present motion for summary judgment, arguing that judgment as a matter of law is due in his favor.
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals both that there is no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. FED R. CIV. P. 56(a). "When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial." Lindsey v. Sears Roebuck and Co. , 16 F.3d 616, 618 (5th Cir. 1994) (per curiam) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under the applicable law in the case." Celotex , 477 U.S. 317, 322-23, 106 S.Ct. 2548. Thus, where the movant is the plaintiff, the movant must establish that there is no genuine dispute of material fact with regard to each element of his claim. Calderone v. United States , 799 F.2d 254, 260 (6th Cir. 1986); Southern Calif. Gas Co. v. City of Santa Ana , 336 F.3d 885, 888 (9th Cir. 2003).
The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1997); Little , 37 F.3d at 1075.
DISCUSSION AND ANALYSIS
I. Employee Status
In order to state a claim for unpaid wages or overtime under the FLSA, the Plaintiff must first establish that he was an employee of the Defendant. See Benshoff v. City of Virginia Beach , 180 F.3d 136, 140 (4th Cir. 1999) ("Those seeking compensation under the Act bear the initial burden of proving that an employer-employee relationship exists and that the activities in question constitute employment for purposes of the Act."); Davis v. Food Lion , 792 F.2d 1274, 1276 (4th Cir. 1986) (Under [the overtime provisions of the FLSA], however, a plaintiff must also show that he was employed' by the defendant/employer in order to prove a violation."). Plaintiff contends that judgment as a matter of law is due to be granted on this issue. Under the FLSA, "employee" is defined as "any individual employed by an employer, " while "employ" means "to suffer or permit to work." 29 U.S.C. § 203(e)(1), 29 U.S.C. § 203(g). As observed by the Fifth Circuit, the definition is particularly broad and is intended to encompass "some parties who might not qualify as such under a strict application of traditional agency law principles." Hopkins v. Cornerstone America , 545 F.3d 338, 343 (5th Cir. 2008) (quoting Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)).
In order to gauge whether an individual is an employee or an independent contractor, the relevant inquiry is "whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself." Id . (citing Herman v. Express Sixty-Minutes Delivery Serv., Inc. , 161 F.3d 299, 303 (5th Cir. 1998)). In making that determination, the court should 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. Hopkins , 545 F.3d at 343. No factor is sufficient or dispositive in and of itself; instead each should be considered in the larger context of the ultimate inquiry. Brock v. Mr. W Fireworks, ...