United States District Court, S.D. Mississippi, Southern Division
STEVEN EBERLINE on behalf of himself and all other similarly situated employees, PLAINTIFF
MEDIA NET LLC, JOHN ATEEQ, and MYKHAYLO KALYN, DEFENDANTS
For Steven Eberline, on behalf of himself and all other similarly situated employees, Plaintiff: Louis H. Watson , Jr., Robert Nicholas Norris, LEAD ATTORNEYS, WATSON & NORRIS, PLLC, Jackson, MS.
For Media Net LLC, John Ateeq, Mykhaylo Kalyn, Defendant: William W. Dreher , Jr., LEAD ATTORNEY, WILLIAM W. DREHER, JR., ATTORNEY, Gulfport, MS.
MEMORANDUM OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
LOUIS GUIROLA, JR., CHIEF UNITED STATES DISTRICT JUDGE.
BEFORE THE COURT are cross-motions for summary judgment filed by the parties in this Fair Labor Standards Act case. Plaintiff Steven Eberline has moved for partial summary judgment  requesting judgment on a number of elements of his FLSA case. The defendants, Media Net, LLC, John Ateeq, and Mykhaylo Kalyn, have moved for summary judgment  requesting judgment that the plaintiff was an independent contractor and not entitled to the protections of the FLSA. Also before the Court is Eberline's Motion  to Strike the Affidavit of Brian Hollingsworth.
After due consideration of the submissions, it is the Court's opinion that there are questions of material fact precluding summary judgment. Accordingly, both summary judgment motions will be denied. Furthermore, it was not necessary for the Court to refer to Hollingsworth's affidavit in reaching this conclusion, and therefore the Motion to Strike will be denied as moot.
The Allegations of the Complaint
Plaintiff Steven Eberline alleges that he worked primarily as an installer for defendant Media Net LLC for two periods between June 2010 and March 2012. Media Net supplies technical and installation services to DirecTV, a satellite television service provider. The two individual defendants, Ateeq and Kalyn, are the owners and managing operators of Media Net. Eberline alleges that Media Net improperly classified him as an independent contractor rather than an employee, and although he regularly worked more than
forty hours per week, Media Net did not pay him for overtime.
Eberline brings this action to recover lost wages under Section 207(a)(1) of the FLSA on behalf of himself and others similarly situated. He also alleges that the defendants violated the record-keeping requirements of Section 211(c), and that 29 U.S.C. § 207(a)(1) states that, the defendants' violations of the FLSA were willful within the meaning of Section 255(a), making the applicable statute of limitations three years.
Earlier in this case, the Defendants moved for dismissal for failure to state a claim, which motion was denied. (Order Denying Def.s' Mot. to Dismiss, ECF No. 31). Also, Plaintiff Eberline moved for class certification under § 16 of the FLSA. The Court determined that there was a reasonable basis to believe that other employees similarly situated to Eberline existed, and therefore conditionally certified a collective class for discovery purposes. (Mem. Op. & Order Granting Class Certification, ECF No. 37).
Eberline brought claims very similar to those in this case against a satellite television services installation company he worked for in Tennessee from April to August, 2012 - after leaving Media Net. See Hollis v. Dump Cable, Inc., No. 1:13cv1077-JDB-egb (W.D. Tenn. Mar. 1, 2013). In connection with his response to Media Net's summary judgment motion in this case, Eberline attached the decision of the Western District of Tennessee in which the court found, as a matter of law, that Eberline was an employee rather than an independent contractor. (Pl. Resp. Ex. A, ECF No. 83-1). Review of that decision shows significant differences in the circumstances of Eberline's employment with the Tennessee company. The litigation is currently stayed pursuant to a notice of bankruptcy filed by the company.
Establishing an FLSA Claim
The FLSA allows injured employees to sue directly on their own behalf under 29 U.S.C. § 216(b), for back pay, plus an equal amount as liquidated damages. Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1030 (5th Cir. 1993). In order to establish a claim for failure to compensate under the FLSA, the plaintiff must first show an employer/employee relationship. The FLSA defines employer as " any person acting directly or indirectly in the interest of an employer in relation to an employee."  29 U.S.C. § 203(d). An " employee" is defined as " any individual employed by an employer." 29 U.S.C. § 203(e)(1).
An entity employs an individual under the FLSA if it " suffer[s] or permit[s]" that individual to work. 29 U.S.C. § 203(g). Both parties contend they are entitled to judgment as a matter of law regarding whether an employee/employer relationship existed between Eberline and Media Net.
As observed by the Fifth Circuit, the FLSA definitions of " employee" and " employer" are broad and intended to encompass " some parties who might not qualify as such under a strict application of traditional agency law principles." Hopkins v. Cornerstone Am., 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)). And although Eberline was employed pursuant to an " Installer's Agreement" explicitly designating him an independent contractor rather than an employee, the Agreement's terms are not determinative. See Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1315 (5th Cir. 1976) (" [n]either contractual recitations nor subjective intent" can mandate a finding of employee or independent contract status.). Instead, in order to determine 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." Hopkins, 545 F.3d at 343 (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, Inc., 814 F.2d 1042, 1043-44 (5th Cir. 1987). This inquiry is a question of law. Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984); see also Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th Cir. 1983); Schultz v. Capital Intern. Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006). Therefore, if there are no genuine questions of fact regarding the factors, the Court should determine Eberline's status as a matter of law.
In addition to Eberline's own case in Tennessee, there have been a number of opportunities for courts to examine the issue of whether a cable or satellite television installer is an employee under the FLSA. There has been no consistent result, however, and one court has noted that the determination is " highly dependent on the specific context in which an ...