Louis Lindsley v. Bellsouth Telecom Inc, et al

Filing

UNPUBLISHED OPINION FILED. [09-30699 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/06/2010 [09-30699]

Louis Lindsley v. Bellsouth:Telecom Inc, et al Case 09-30699 Document: 00511292963

Page: 1 Date Filed: 11/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 15, 2010 N o . 09-30699 S u m m a r y Calendar Lyle W. Cayce Clerk

L O U I S F. LINDSLEY, P la in t if f ­ A p p e lla n t v. B E L L S O U T H TELECOMMUNICATIONS INC; DIRECTIONAL ROAD B O R I N G INC, D e fe n d a n t s -C r o s s Claimants­Appellees

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:07-CV-6569

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* I n the wake of Hurricane Katrina, BellSouth Telecommunications, Inc. ("B ellS o u t h " ) had an immediate need for "splicers" to maintain and repair aboveg r o u n d telephone lines. BellSouth contracted with Directional Road Boring, Inc. (" D R B I " ) to perform this work. DRBI sub-contracted with Robert J. Parker d/b/a

Pursuant to Fifth Circuit Rule 47.5, we have determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.

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Dockets.Justia.com

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No. 09-30699 P a r k e r Communications ("Parker"). Parker hired individual splicers, including p la in t iff Louis F. Lindsley. After his employment ended, Lindsley filed suit in federal district court. Lindsley alleged that he was not adequately paid for hours worked in excess of fo r t y hours per week, in violation of the Fair Labor Standards Act ("FLSA"). See 2 9 U.S.C. § 207(a)(1) (requiring that covered employers pay employees at least o n e -a n d -a -h a lf times the regular rate for hours worked in excess of forty hours p e r week). BellSouth and DRBI (collectively "Defendants") filed a motion for s u m m a r y judgment, arguing that the FLSA did not cover Lindsley because he w a s an independent contractor rather than an employee. The district court a g r e e d and granted Defendants' motion for summary judgment. Lindsley timely a p p e a le d . We have jurisdiction under 28 U.S.C. § 1291. "To determine if a worker qualifies as an employee [under the FLSA], we f o c u s on whether, as a matter of economic reality, the worker is economically d e p e n d e n t upon the alleged employer or is instead in business for himself." Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008). To aid in this i n q u i r y , we consider five non-exhaustive factors: (1) the degree of control e x e r c is e d by the alleged employer; (2) the extent of the relative investments of t h e worker and the alleged employer; (3) the degree to which the worker's o p p o r t u n it y for profit or loss is determined by the alleged employer; (4) the skill a n d initiative required in performing the job; and (5) the permanency of the r e la t io n s h ip . Id. The ultimate determination of whether an individual is an e m p lo y e e under the FLSA is a legal, and not a factual, finding. Brock v. Mr. W F ir e w o r k s , Inc., 814 F.2d 1042, 1045 (5th Cir. 1987). Accordingly, "we review the d e t e r m in a t io n that [plaintiffs] were not employees as we review any d e t e r m in a t io n of law," which is de novo. Donovan v. Am. Airlines, Inc., 686 F.2d 2 6 7 , 270 n.4 (5th Cir. 1982).

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No. 09-30699 T h is case is largely controlled by our recent decision in Thibault v. B e llS o u th Telecommunications, Inc., 612 F.3d 843 (5th Cir. 2010). Thibault a d d r e s s e d the issue of FLSA employee status for another splicer hired by B e llS o u t h in the New Orleans area after Hurricane Katrina. In fact, Louis T h ib a u lt worked for Parker at the same time and in the location as Lindsley, a lb e it on different work crews. Like Thibault, Lindsley worked for Parker for a p p r o x im a t e ly three months, and was paid at a rate of $68 an hour along with a $50 per diem. The splicers worked twelve to thirteen hour days for thirteen c o n s e c u t iv e days before receiving the fourteenth off. Both reported for work e v e r y morning to get his assignments, and although Defendants inspected their r e p a ir work, they did not instruct either how to actually perform the work. Both m e n provided their own equipment, including bucket trucks, and the tools r e q u ir e d for the job valued at approximately $10,000. Defendants provided a d d it io n a l materials for the splicing including tape and splicing modules. In Thibault, this Court held that the plaintiff was not an employee of D e fe n d a n t s under the FLSA. 612 F.3d at 849. We found that our decision r e g a r d in g welders in Carrell v. Sunland Construction, Inc., 998 F.2d 330 (5th C ir . 1993) provided "substantial guidance" in our analysis. Id. at 846. This is in contrast to our unpublished decision in Cromwell v. Driftwood Electrical C o n tr a c to r s , Inc., 348 Fed. Appx. 57 (5th Cir. 2009). In that case, we found that o t h e r splicers performing work in the wake of Hurricane Katrina were e m p lo y e e s under the FLSA, as these splicers were more analogous to the e m p lo y e e welders in Robicheaux v. Radcliff Material, Inc., 697 F.2d 662 (5th Cir. 1 9 8 3 ) than the non-employee welders in Carrell. Cromwell, 348 Fed. Appx. at 6 0 ­ 6 1 . Despite the similarity of facts between the splicers in Thibault and C r o m w e ll, we noted that Cromwell distinguished Carrell in a way not applicable t o Thibault: "the splicers in Cromwell did `not have the same temporary, projectb y -p r o je c t , on-again-off-again relationship with their purported employers.'" 3

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No. 09-30699 T h ib a u lt, 612 F.3d at 849 (quoting Cromwell, 348 Fed. Appx. at 60). The

C r o m w e ll splicers worked for their employers for eleven months, similar to the R o b ic h e a u x welders who worked for the employer for periods ranging from ten m o n th s to three years, and unlike the Carrell welders who worked annually for t h e contractor for three to sixteen weeks, and the Thibault splicers who worked fo r the contractor for approximately three months. See Cromwell, 348 Fed. A p p x . at 60­61; Thibault, 612 F.3d at 845. T h e Thibault court also distinguished its facts from those in Cromwell in t h a t Plaintiff Thibault continued to own and operate his own business in D e la w a r e , overseeing its "operations and multiple employees." Thibault, 612 F .3 d at 849. Thibault also deposited all payments he received from Parker into h is company's account for "tax reasons." Id. The Thibault court used this e v id e n c e to show that unlike in Cromwell, "Thibault is a sophisticated, in t e llig e n t business man who entered into a contractual relationship to perform a specific job for the defendants." Id. Because the facts in this case are so similar to those in Thibault, we will n o t repeat the Thibault court's full analysis of the Hopkins factors. The two d is t in c t io n s that Thibault made from Cromwell, however, merit discussion. Similar to Thibault, Lindsley worked for Parker for approximately three months, u n l i k e the eleven month employment in Cromwell. Therefore, as we stated in T h ib a u lt, "Cromwell made a distinction from the Carrell welders that does not a p p ly . . . ." Thibault, 612 F.3d at 849. Unlike in Thibault, Lindsley did not

o w n and continue to operate an independent business while working for Parker, a n d claims that he was forbidden and unable to work for any other company as a splicer while with Parker. This distinction does push against part of this C o u r t 's basis for distinguishing Thibault from Cromwell. However, Lindsley d o e s have several decades of experience as a splicer, considers himself "selfe m p lo y e d ," and has paid self-employment tax. 4 Lindsley's single material

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No. 09-30699 d is t in c t io n from Thibault is not strong enough to merit a finding that Lindsley, u n lik e Thibault, was "economically dependent" on Defendants. Like Thibault, t h is case falls under the umbrella of Carrell rather than Robicheaux. F o r the foregoing reasons, we find that the district court did not err in g r a n t in g summary judgment to Defendants. The judgment of the district court is therefore AFFIRMED.

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