Sigui v. M + M Commc'ns, Inc.

310 F.Supp.3d 313

Juan SIGUI; Jose Sigui; Jose Cipriano; Joseph Mendez ; Jose L. Santos; and Anthony R. Kern, individually and on behalf of other similarly situated individuals, Plaintiffs,

v.M + M COMMUNICATIONS, INC., alias; Cox Rhode Island Tel[e]com, LLC, d/b/a Cox Communications, alias; and CoxCom, LLC, d/b/a Cox Communications New England, alias; and William Dowling, alias, Defendants.

C.A. No. 14–442 WES

United States District Court, D. Rhode Island.

Signed March 30, 2018

Richard A. Sinapi, Danilo A. Borgas, Joshua D. Xavier, Sinapi Law Associates, Ltd., Warwick, RI, for Plaintiffs.

Dean J. Wagner, James G. Atchison, Shechtman Halperin Savage LLP, Pawtucket, RI, Michael D. Chittick, Adler Pollock & Sheehan P.C., Providence, RI, Annette A. Idalski, Peter N. Hall, Pro Hac Vice, Chamberlain Hrdlicka White Williams & Aughtry, Atlanta, GA, for Defendants.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge.

1 Before the Court is Magistrate Lincoln D. Almond's Report and Recommendation ("R & R") (ECF No. 113) recommending that the Court grant Defendants Cox Rhode Island Telecom, LLC's and CoxCom, LLC's (collectively, "Cox") Motion for Summary Judgment (ECF No. 83) and deny Plaintiffs' Cross–Motion for Partial Summary Judgment (ECF No. 89). Plaintiffs timely objected to the R & R (ECF No. 114) ("Objection"). After careful review of the R & R, Plaintiffs' Objection, and the relevant papers,¹ the Court ACCEPTS the R & R and adopts its recommendations and reasoning. See 28 U.S.C. § 636(b)(1).

2 First, Plaintiffs argue that Magistrate Judge Almond contravened his duty to draw all reasonable inferences in favor of Plaintiffs (as the nonmovants) in construing Cox's Motion for Summary Judgment. (Pls.' Mem. in Support of Obj. to R. & R. ("Pls.' Obj.") 2.) Specifically, Plaintiffs posit that, "the R & R ignores all 265 of Plaintiffs' proffered undisputed facts—most of which are not disputed by Cox—and all but 8 of Plaintiffs' 104 disputed facts." ( Id. at 14.) Plaintiffs appear to suggest that, when reviewing Cox's Motion for Summary Judgment, in addition to considering Cox's Statement of Undisputed Facts and Plaintiffs' responsive Statement of Disputed Facts, the magistrate judge must also consider Plaintiffs' Statement of Undisputed Facts submitted in support of their cross-motion for summary judgment. ( See id. ) Plaintiffs' argument is a nonstarter. Magistrate Judge Almond, as he was required to do, considered the factual record attached to Cox's motion in the light most favorable to Plaintiffs. ( See R. & R. Part I.) In this context, the presence of cross-motions for summary judgment does not alter the applicable framework. Cochran v. Quest Software, Inc. , 328 F.3d 1, 6 (1st Cir. 2003). That is, "the court must mull each motion separately, drawing inferences against each movant in turn." Id. (citing Blackie v. Maine , 75 F.3d 716, 721 (1st Cir. 1996) ). Magistrate Judge Almond appropriately viewed the factual record set forth by Cox's motion, composed of Cox's Statement of Undisputed Facts and Plaintiffs' responsive Statement of Disputed Facts, through which Plaintiffs conceded several facts by either not responding at all or not responding with sufficient substance.² See DRI LR 56(a)(3) ("[A]ny fact alleged in the movant's Statement of Undisputed Facts shall be deemed admitted unless expressly denied or otherwise controverted by a party objecting to the motion." (emphasis added) ).

Next, Plaintiffs posit that Magistrate Judge Almond "[i]mproperly relie[d] on other cases involving telecommunications installers, which are based on different facts and assumes that because in those cases a particular indicia of control, standing alone, did not indicate a joint-employer relationship[,] no combination of those indicia could lead to a determination that a joint-employer relationship exists." (Pls.' Obj. 2.) This specific averment goes hand in hand with a larger theme that fills Plaintiffs' fifty-seven-page objection: a suggestion that Magistrate Judge Almond neglected to consider the totality of the circumstances. ( See, e.g. , id. at 9–13, 16–17, 55–56.) Contrary to Plaintiffs' characterization of the R & R, Magistrate Judge Almond conducted what the Plaintiffs correctly recognize is required: a "pragmatic, holistic, totality-of-the-circumstances, economic-reality approach for joint-employment ...." (Pls.' Obj. 9–10.); see also Baystate Alternative Staffing, Inc. v. Herman , 163 F.3d 668, 675 (1st Cir. 1998) ("[T]o determine whether an employment relationship exists ... courts look ... to the ‘economic reality’ of the totality of the circumstances bearing on whether the putative employee is economically dependent on the alleged employer.").

34 To break down Plaintiffs' argument, it is helpful to start with the basics. This is important because Plaintiffs' suggestion that Magistrate Judge Almond applied the incorrect standard is premised upon a fundamental misconception of what that standard is. To be certain, the applicable standard in this context dictates that, "it is the totality of the circumstances, and not any one factor, which determines whether a worker is the employee of a particular alleged employer." Baystate , 163 F.3d at 676 ; accord Rutherford Food Corp. v. McComb , 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) ("[T]he determination of the [employer-employee] relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity."). In other words, using the four-factor standard adopted in Baystate as a guide, the court must holistically consider the case's circumstances to decipher whether the " ‘economic reality’ of the situation" aligns with an employer/employee relationship. 163 F.3d at 675–77. This is precisely what Magistrate Judge Almond did. And his holistic analysis lead to the correct conclusion.

Plaintiffs' Objection to the R & R reveals that Plaintiffs' problem is not the standard applied but the conclusion reached. This Court has the benefit of not writing on a blank canvas; many courts have considered nearly identical arguments in nearly identical factual circumstances.³ See generally, e.g. , Crosby v. Cox Commc'ns, Inc. , No. CV 16-6700, 2017 WL 1549552 (E.D. La. May 1, 2017) ; Gremillion v. Cox Commc'ns Louisiana , No. CV 16-9849, 2017 WL 1321318 (E.D. La. Apr. 3, 2017) ; Roslov v. DirecTV Inc. , 218 F.Supp.3d 965 (E.D. Ark. 2016) ; Thornton v. Charter Commc'ns, LLC , No. 4:12CV479 SNLJ, 2014 WL 4794320 (E.D. Mo. Sept. 25, 2014) ; Zampos v. W & E Commc'ns, Inc. , 970 F.Supp.2d 794 (N.D. Ill. 2013) ; Valdez v. Cox Commc'ns Las Vegas, Inc. , No. 2:09-CV-01797-PMP, 2012 WL 1203726 (D. Nev. Apr. 11, 2012) ; Lawrence v. Adderley Indus., Inc. , No. CV-09-2309 SJF ETB, 2011 WL 666304 (E.D.N.Y. Feb. 11, 2011) ; Smilie v. Comcast Corp. , No. 07-CV-3231, 2009 WL 9139890 (N.D. Ill. Feb. 25, 2009) ; Jacobson v. Comcast Corp. , 740 F.Supp.2d 683 (D. Md. 2010) ; Herman v. Mid–Atl. Installation Servs., Inc. , 164 F.Supp.2d 667 (D. Md. 2000), aff'd sub nom. Chao v. Mid–Atl. Installation Servs., Inc. , 16 Fed.Appx. 104 (4th Cir. 2001) ; Santelices v. Cable Wiring , 147 F.Supp.2d 1313 (S.D. Fla. 2001). Each of those courts, in considering the totality of the circumstances of substantially analogous facts, granted summary judgment for the defendant-cable company. Magistrate Judge Almond considered these decisions, where other federal district courts principally tested the facts and arguments against the same four-factor standard. And he correctly deemed them highly persuasive. Like Magistrate Judge Almond, this Court finds these cases highly persuasive, and Plaintiffs have not convincingly explained why the circumstances of this particular case are any different than the near-dozen cases in which summary judgment was granted on the issue of joint-employment on practically identical facts.

The best Plaintiffs can do is to exclusively rely on an outlier case, Perez v. Lantern Light Corp. , No. C12-01406 RSM, 2015 WL 3451268 (W.D. Wash. May 29, 2015). ( See, e.g. , Pls.' Obj. 13–19, 23, 28, 31, 40, 47.) Alas, the persuasiveness of this case does not increase with the number of times Plaintiffs cite to it in their objection. Plaintiffs suggest that Magistrate Judge Almond, in refusing to follow this case's reasoning, "[i]mproperly reject[ed] the most authoritative and factually apposite case ... merely because M + M's contract with Cox was not exclusive, even though M + M has never worked for another cable company and is totally economically dependent upon Cox ...." (Pls.' Obj. 2.) But each fact that Plaintiffs attach significance to from Perez is present in abundance in the other cases in which summary judgment was granted, and—as Magistrate Judge Almond recognized—this case is factually distinguishable from Perez in more fundamental and material ways. ( See R. & R. –––– n.2.); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). For instance, Plaintiffs pinpoint a "laundry list of similar facts" shared between the instant case and Perez , including, among other things, Cox requiring background checks, qualifications to install cable, collecting quality control data on installers, requiring uniforms, badges, and logos on vehicles, and providing payment on a "piece rate." (Pls.' Obj. 15.) Just as these facts did not compel the conclusion that cable companies were joint employers in other, factually similar cases, they do not do so here. See, e.g. , Crosby , 2017 WL 1549552, at *5 ("But simply requiring a background check has not been found sufficient to conclude that a communication company possesses authority to hire and fire."...