Rapczynski et al v. Directv, Inc. et al

MOTION for Summary Judgment as to Plaintiff Stephen Rydzanich

M.D. Pa.November 28, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GARY RAPCZYNSKI, et al. v. DIRECTV, LLC, et al. : : : : : : : 3:14-cv-02441-RDM (Judge Robert D. Mariani) DEFENDANTS DIRECTV, LLC AND MASTEC NORTH AMERICA, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF STEPHEN RYDZANICH Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants DIRECTV, LLC (“DIRECTV”) and MasTec North America, Inc. (“MasTec,” and, collectively with DIRECTV, “Defendants”) hereby moves for summary judgment as to all claims asserted against it by Plaintiff Stephen Rydzanich (“Rydzanich”) under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., the Pennsylvania Minimum Wage Act, 43 P.S. § 333.101, et seq., and the Pennsylvania Wage Payment Collection Law, 43 P.S. § 260.3, et seq. (“PWPCL”).1 In support of its Motion, Defendants state that there are no genuine issues of material fact in dispute and that Defendants are entitled to judgment as a matter of law. This Motion is brought on the following grounds: 1 Rydzanich’s claims arising out of his employment with MasTec are subject to the provisions of an arbitration agreement entered into between Rydzanich and MasTec. Through the filing of the instant Motion, Defendants do not waive this affirmative defense. Case 3:14-cv-02441-RDM Document 75 Filed 11/28/16 Page 1 of 5 - 2 - 1. DIRECTV is entitled to summary judgment on all of Rydzanich’s claims because Rydzanich was not employed by DIRECTV during the time period relevant to his claims. 2. Defendants are entitled to summary judgment on all of Rydzanich’s claims because Defendants did not suffer or permit the work upon which Rydzanich predicates those claims. 3. Defendants are entitled to summary judgment with respect to Rydzanich’s overtime claims because he was exempt at all times relevant to those claims. 4. Defendants are entitled to summary judgment with respect to Rydzanich’s minimum wage claims because his hourly rate exceeded the minimum wage at all times relevant to that claim. 5. Defendants are entitled to summary judgment on all of Rydzanich’s claims because Rydzanich cannot prove his alleged damages as a matter of just and reasonable inference. 6. Defendants are entitled to summary judgment with respect to Rydzanich’s FLSA claims to the extent those claims fall outside the two year statue of limitations. Case 3:14-cv-02441-RDM Document 75 Filed 11/28/16 Page 2 of 5 - 3 - 7. DIRECTV is independently entitled to summary judgment on all of Rydzanich’s PWPCL claims because Rydzanich does not have a contractual right to the alleged unpaid wages. In further support of this Motion, Defendants submit the accompanying Memorandum of Law, Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment as to Plaintiff Stephen Rydzanich, and Defendants’ Appendix to Motions for Summary Judgment, each of which has been filed on this date and is incorporated herein by reference. A proposed order is attached hereto. DATED: November 28, 2016 Respectfully submitted, REED SMITH LLP /s/ Thomas E. Hill Thomas E. Hill (ECF User) Admitted pro hac vice; CA 100861 Linda S. Husar (ECF User) Admitted pro hac vice; CA 93989 Christina Tellado (ECF User) Admitted pro hac vice; PA 204246 Reed Smith LLP 355 South Grand Avenue, Suite 2800 Los Angeles, CA 90071-1514 Telephone: 213.457.8000 Valerie E. Brown (ECF User) Admitted pro hac vice; PA 309849 Reed Smith LLP Three Logan Square, Suite 3100 Philadelphia, PA 19103 Telephone: 215. 851.8859 Case 3:14-cv-02441-RDM Document 75 Filed 11/28/16 Page 3 of 5 - 4 - Richard L. Etter (ECF User) PA 92835 Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: 412. 288.3806 Attorneys for Defendants DIRECTV, LLC and MasTec North America, Inc. Case 3:14-cv-02441-RDM Document 75 Filed 11/28/16 Page 4 of 5 - 5 - CERTIFICATE OF NON-CONCURRENCE The undersigned certifies that Defendant contacted Plaintiffs’ counsel prior to the filing of this Motion, but was unable to obtain consent from Plaintiffs’ counsel to file the Motion as Unopposed. /s/ Thomas E. Hill Thomas E. Hill CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via CM/ECF e-file system on this 28th day of November, 2016, to counsel of record. /s/ Thomas E. Hill Thomas E. Hill Case 3:14-cv-02441-RDM Document 75 Filed 11/28/16 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GARY RAPCZYNSKI, et al. v. DIRECTV, LLC, et al. : : : : : : : 3:14-cv-02441-RDM (Judge Robert D. Mariani) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS DIRECTV, LLC AND MASTEC NORTH AMERICA, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF STEPHEN RYDZANICH Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 1 of 44 - i - TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF QUESTIONS INVOLVED .............................................. 1 III. FACTUAL BACKGROUND .......................................................................... 2 A. Descriptions Of DIRECTV And MasTec And The Retail Sale Of DIRECTV’s Satellite Television Services ....................................... 2 B. Rydzanich’s Work Installing DIRECTV Satellite Television Services For Halsted And MasTec ........................................................ 5 IV. ARGUMENT ................................................................................................... 9 A. Standard of Review ............................................................................... 9 B. DIRECTV Is Entitled To Summary Judgment On All Of Rydzanich’s Claims Because DIRECTV Never Employed Rydzanich During His Claim Period ................................................... 10 1. Rydzanich’s Employment Theory ............................................ 10 2. The Applicable Joint Employment Standard ............................ 12 3. Rydzanich Was Not Jointly Employed By DIRECTV ............. 14 4. Rydzanich’s Anticipated Arguments In Support Of His Joint Employment By DIRECTV Are Without Merit .............. 16 C. Defendants Are Entitled To Summary Judgment With Respect To All Of Rydzanich’s Wage Claims Because They Did Not Suffer Or Permit The Work Upon Which Rydzanich Predicates Those Claims ....................................................................................... 20 D. Defendants Are Entitled To Summary Judgment With Respect To Rydzanich’s Overtime Claim Under The FLSA Because Rydzanich Was Exempt ...................................................................... 22 1. DIRECTV Is A Retail Or Service Establishment ..................... 23 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 2 of 44 - ii - 2. Rydzanich Was Paid Commissions .......................................... 25 3. Rydzanich’s Regular Rate Of Pay Exceeded One And One Half Times The Applicable Minimum Wage ................... 27 E. Defendants Are Entitled To Summary Judgment With Respect To Rydzanich’s Minimum Wage Claim Under The FLSA And PMWA ................................................................................................. 28 F. Defendants Are Entitled To Summary Judgment With Respect To All Of Rydzanich’s Claims Because Rydzanich Cannot Prove His Alleged Damages As A Matter Of Just And Reasonable Inference .......................................................................... 29 G. Defendants Are Entitled To Summary Judgment With Respect To A Portion Of Rydzanich’s FLSA Claims Because Such Claims Are Barred By The Applicable Two Year Statute of Limitations ........................................................................................... 31 H. DIRECTV Is Entitled To Summary Judgment As To Rydzanich’s PWPCL Claim Because He Does Not Have A Contractual Right To Alleged Unpaid Wages .................................... 33 V. CONCLUSION .............................................................................................. 35 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 3 of 44 - iii - TABLE OF AUTHORITIES Page(s) Cases Alvarado v. Corp. Cleaning Servs., Inc., 782 F.3d 365 (7th Cir. 2015) .............................................................................. 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................................................ 9, 10 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), superseded by statute on other grounds .......................... 30 Baum v. Astrazeneca LP, 372 Fed. Appx. 246 (3d Cir. 2010) ..................................................................... 11 Bennett v. UniTek Global Services, LLC, 2013 U.S. Dist. LEXIS 128350 (N.D. Ill. Sept. 9, 2013) ................................... 14 Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) ...................................................................... 11, 13 Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa. Super. Ct. 2011) aff'd, 106 A.3d 656 (Pa. 2014) .................... 35 Brock v. Richland Shoe Co., 799 F.2d 80 (3d Cir.1986) .................................................................................. 33 In re Cargill Meat Solutions Wage and Hour Litigation, 632 F. Supp. 2d 368 (M.D. Pa.) .......................................................................... 35 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................................ 9, 10 Chapman v. BOK Fin. Corp., 2014 U.S. Dist. LEXIS 101652 (N.D. Okla. July 25, 2014) .............................. 33 De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003) ............................................................................... 35 Dibello v. Alpha Centurion Sec., Inc., 2015 WL 1344642 (E.D. Pa. Mar. 23, 2015) ..................................................... 34 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 4 of 44 - iv - DiSantis v. Morgan Properties Payroll Servs., Inc., 2010 WL 3606267 (E.D. Pa. Sept. 16, 2010) ..................................................... 31 English v. Ecolab, Inc., 2008 WL 878456 (S.D.N.Y. 2008) ..................................................................... 24 In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, 683 F.3d 462 (3d Cir. 2012) ............................................................. 11, 12, 13, 15 Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590 (May 20, 2015) .................................................................. 34 Herman v. Mid-Atlantic Installation Services, Inc., 164 F. Supp. 2d 667 (D. Md. 2000), aff’d 16 Fed. Appx. 104 (4th Cir. 2001) ............................................................................................................ 17 Hertz v. Woodbury Cty., 566 F.3d 775 (8th Cir. 2009) .............................................................................. 22 Holaway v. Stratasys, Inc., 791 F.3d 1057 (8th Cir. 2014) ............................................................................ 31 Jacobson v. Comcast Corp., 740 F. Supp. 2d 683 (D.Md. 2010) ................................................... 14, 18, 19, 20 Jean-Louis v. Metropolitan Cable Comm’ns, Inc., 838 F. Supp. 2d 111 (S.D.N.Y. 2011) .......................................................... 14, 18 Johnson v. Wave Communications, GR LLC, 4 F. Supp. 3d 423 .......................................................................................... 24, 26 Jones v. Tucker Comm’ns, Inc., No. 5:11-CV-398 (MTT), 2013 WL 6072966 (M.D. Ga. Nov. 18, 2013) ............................................................................................................. 23, 27 Kelly v. A1 Tech., 2010 WL 1541585 (S.D.N.Y. 2010) ................................................................... 24 Killian v. McCulloch, 850 F.Supp. 1239 (E.D. Pa. 1994) ...................................................................... 34 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 5 of 44 - v - Klinedinst v. Swift Invs., Inc., 260 F.3d 1251 (11th Cir. 2001) .......................................................................... 26 Koleshnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98 (S.D.N.Y. 2009) .................................................................. 32 Lawrence v. Adderley Indus. Inc., 2011 WL 666304 (E.D.N.Y. 2011) .............................................................. 14, 20 Levitt v. Technical Educ. Servs., Inc., 2012 WL 3205490 (E.D. Pa. Aug. 7, 2012) ....................................................... 11 Lugo v. Farmer’s Pride Inc., 802 F. Supp. 2d 598 (E.D. Pa. 2011) .................................................................. 32 Matrai v. DirecTV, LLC, 168 F. Supp. 3d 1347 (D. Kan. 2016) ............................................... 23, 25, 26, 27 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................ 10 McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) ............................................................................................ 33 Millington v. Morrow Cnty. Bd. of Comm’rs, No. 06-347, 2007 WL 2908817 (S.D. Ohio Oct. 4, 2007) ................................. 32 Oakes v. Pennsylvania, 871 F. Supp. 797 (M.D. Pa.1995) ....................................................................... 33 Oberneder v. Link Computer Corp., 696 A.2d 148 (Pa. 1997) ..................................................................................... 35 Owopetu v. Nationwide CATV Auditing Servs., Inc., 2011 WL 4433159 (D. Vt. 2011) .................................................................. 24, 26 Parker v. NutriSystem, Inc., 620 F.3d 274 (3d Cir. 2010) ............................................................................... 26 Reich v. Delcorp, Inc., 3 F.3d 1181 (8th Cir. 1993) ................................................................................ 23 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 6 of 44 - vi - Roslov v. DIRECTV, C.A. No. 4:14-CV-00616 BSM, slip op. (E.D. Ark. Nov. 4, 2016) ............passim Schwind v. EW & Assocs., Inc., 371 F. Supp. 2d 560 (S.D.N.Y. 2005) .......................................................... 23, 28 Signora v. Liberty Travel, Inc., 886 A.2d 284 (Pa. Super. 2005) ......................................................................... 11 Thompson v. Real Estate Mortg. Network, 748 F.3d 142 (3d Cir. 2014) ............................................................................... 12 Thornton v. Charter Communications, LLC, 2014 WL 4794320 (E.D. Mo. 2014) ............................................................. 14, 18 Valdez v. Cox Communications Las Vegas, Inc., 2012 WL 1203726 (D. Nev. 2012) ..................................................................... 14 Vilches v. Travelers Cos., 413 F. App’x 487 (3d Cir. 2011) .......................................................................... 9 Whitaker v. Pac. Enters. Oil Co., 1992 U.S. App. LEXIS 5135 (10th Cir. Mar. 9, 1992) ...................................... 21 Zampos v. W&E Communications, Inc., 970 F. Supp. 2d 794 (N.D. IL 2013) ................................................................... 14 Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003) ................................................................................. 17 Statutes 29 U.S.C. § 203(d) ................................................................................................... 12 29 U.S.C. § 203(e)(1) ............................................................................................... 12 29 U.S.C. § 206 ........................................................................................................ 28 29 U.S.C. § 207(i) .............................................................................................. 23, 24 29 U.S.C. § 255(a) ................................................................................................... 32 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 7 of 44 - vii - Rules Fed. R. Civ. P. 56(c) ................................................................................................... 9 Regulations 29 C.F.R. 778.120 .................................................................................................... 28 29 C.F.R. § 779.302 ................................................................................................. 24 29 C.F.R. § 779.318 ................................................................................................. 24 29 C.F.R. § 779.411 ................................................................................................. 24 29 C.F.R. § 779.419 ................................................................................................. 28 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 8 of 44 - 1 - I. INTRODUCTION Plaintiff Stephen Rydzanich (“Rydzanich”) asserts claims against DIRECTV, LLC (“DIRECTV”) and MasTec North America, Inc. (“MasTec,” and, collectively with DIRECTV, “Defendants”) for unpaid minimum wages and overtime under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”) and the Pennsylvania Minimum Wage Act, 43 P.S. § 333.101, et seq. (“PMWA”), and the Pennsylvania Wage Payment Collection Law, 43 P.S. § 260.3, et seq. (“PWPCL”). Rydzanich also asserts a claim against the Defendants for “unauthorized” deductions from his wages under the PWPCL. Defendants hereby submit this Memorandum of Law in support of their Motion for Summary Judgment as to all of Rydzanich’s claims. II. STATEMENT OF QUESTIONS INVOLVED  Whether DIRECTV is entitled to summary judgment on all of Rydzanich’s claims because Rydzanich was not employed by DIRECTV during the time period relevant to his claims.  Whether Defendants are entitled to summary judgment on all of Rydzanich’s claims because Defendants did not suffer or permit the work upon which Rydzanich predicates those claims.  Whether Defendants are entitled to summary judgment with respect to Rydzanich’s overtime claims because he was exempt at all times relevant to those claims.  Whether Defendants are entitled to summary judgment with respect to Rydzanich’s minimum wage claims because his hourly rate exceeded the minimum wage at all times relevant to that claim. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 9 of 44 - 2 -  Whether Defendants are entitled to summary judgment on all of Rydzanich’s claims because Rydzanich cannot prove his alleged damages as a matter of just and reasonable inference.  Whether Defendants are entitled to summary judgment with respect to Rydzanich’s FLSA claims to the extent those claims fall outside the two year statue of limitations.  Whether DIRECTV is independently entitled to summary judgment on all of Rydzanich’s PWPCL claims because Rydzanich does not have a contractual right to the alleged unpaid wages. III. FACTUAL BACKGROUND A. Descriptions Of DIRECTV And MasTec And The Retail Sale Of DIRECTV’s Satellite Television Services DIRECTV sells satellite television services to retail customers throughout the United States. (See Defendants DIRECTV, LLC and MasTec North America, Inc.’s Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment as to Plaintiff Stephen Rydzanich, at paragraph 1, hereinafter cited as “SMF, ¶ _”) These sales are completed through the installation of satellite dishes, receiver units and other DIRECTV equipment at or in the homes of DIRECTV’s customers. (SMF, ¶ 1) The satellite television services that DIRECTV sells are not for resale, and are made available for the comfort and convenience of members of the general public, who enjoy those services in the course of their daily living. (SMF, ¶ 1) Well more than 75% of DIRECTV’s revenue is derived from the sale of its satellite television services. (SMF, ¶ 2) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 10 of 44 - 3 - MasTec is a publicly-traded (NYSE) diversified infrastructure construction company. (SMF, ¶ 3) MasTec operates throughout the United States, and employs nearly 10,000 people. (SMF, ¶ 3) MasTec’s activities include electrical utility transmission and distribution, wind farms, solar farms, other renewable energy, natural gas and petroleum pipeline infrastructure, wireless and wireline satellite communication, industrial infrastructure, and water and sewer systems. (SMF, ¶ 3) MasTec’s annual revenues exceed $4.2 billion. (SMF, ¶ 3) DIRECTV regularly contracts with independent businesses such as MasTec to perform the installation work necessary to complete sales of its satellite television services to retail customers. (SMF, ¶ 4) DIRECTV refers to these installation companies as Home Service Providers (“HSPs”). (SMF, ¶ 4) MasTec is an HSP of DIRECTV. (SMF, ¶ 12) HSPs such as MasTec generally use their own satellite technician employees to perform the installation services specified in their contracts with DIRECTV, which are commonly referred to as “HSP Agreements.” (SMF, ¶ 7) In addition, HSPs can and routinely do subcontract with other independent business entities (“Subcontractors”) to perform some of the installation work that the HSP has agreed to provide DIRECTV through its HSP Agreement. (SMF, ¶ 8) DIRECTV’s non-exclusive HSP Agreements with MasTec have always provided that MasTec is an independent contractor of DIRECTV, that DIRECTV Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 11 of 44 - 4 - is not the employer of MasTec’s satellite technicians or the technicians engaged by any Subcontractor of MasTec, and that MasTec and its Subcontractors are required to comply with all applicable laws in performing the installation services specified in the HSP Agreement, including all laws governing the compensation of satellite technicians who actually perform the installation work. (SMF, ¶ 9) Halsted was a former HSP that installed DIRECTV systems. (SMF, ¶ 5) The relationship between Halsted and DIRECTV was governed by an HSP Agreemend identical to the other HSP Agreements. (SMF, ¶ 5) MasTec acquired Halsted in or about June 2011, and Halsted thereafter ceased to exist as an independent HSP. (SMF, ¶ 5) Technicians install DIRECTV receiving equipment in customers’ homes or businesses so that they can receive service. Technicians will only perform a work order if a customer first purchases DIRECTV service. The DIRECTV system consists of a receiving satellite dish antenna, one or more digital set-top receivers and remote controls. (SMF, ¶ 10) SIEBEL, the work order management system utilized by DIRECTV to process sales orders, assigns customer work to either the applicable DIRECTV office or HSP responsible for the customer’s zip code. (SMF, ¶ 11) SIEBEL does not have any actual records of hours worked by technicians. (SMF, ¶ 11) SIEBEL’s preliminary assignments of work orders are based on a “technician Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 12 of 44 - 5 - profile,” which consists of the “three S’s”: (1) the technician’s start and stop location, which may not be a technician’s home address, and is often referred to as “Service Area”; (2) schedule (the days and times the technician is reported as available to receive work orders); and (3) skill set (information on certifications or specialized skill set). (SMF, ¶ 12) The preliminary assignments are provided solely to HSPs, like MasTec, and not to the Subcontractors of the HSPs. (SMF, ¶ 12) Most HSPs, including MasTec, reassign the work orders to their employee technicians as they see fit, and thereafter provide Subcontractors work orders on a “bulk” or “bundled” basis. (SMF, ¶ 12) The Subcontractors are free to unpack those “bundled” work orders and distribute job assignments to their individual technicians as they deem appropriate. (SMF, ¶ 12) B. Rydzanich’s Work Installing DIRECTV Satellite Television Services For Halsted And MasTec In or around Spring 2010, Rydzanich began working as an employee for Halsted. (SMF, ¶ 13) In June 2011, Halsted was acquired by MasTec.1 (SMF, ¶¶ 5, 31) Rydzanich admits that he applied to perform satellite installation work directly with Halsted, who informed Rydzanich that he would be compensated on a 1 MasTec denies any potential liability for wage violations allegedly committed by Halsted during its employment of Rydzanich. Nevertheless, for purposes solely of this Motion, MasTec addresses the lack of merit to Rydzanich’s Halsted-based claims as if it bears potential liability with respect to those claims given its acquisition of Halsted. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 13 of 44 - 6 - piece rate basis. (SMF, ¶¶ 22, 25-26) Rydzanich admits that, throughout his employment with Halsted, he was paid pursuant to the Halsted’s piece rate schedule. (SMF, ¶¶ 22, 25-26) Halsted had a tiered compensation system where the piece rate paid to Rydzanich increased or decreased based on his performance. (SMF, ¶ 26) Rydzanich admits that he was paid at the highest tier on Halsted’s rate card because he was a higher performing technician. (SMF, ¶ 26) Rydzanich admits that he received compensation in addition to the agreed-upon piece rate from Halsted, including compensation for attending company meetings at Halsted’s warehouse and minimum wage supplements. (SMF, ¶¶ 23, 27) Rydzanich also admits that he received overtime, that he was never paid less than minimum wage, and that the allegations in the Amended Complaint stating otherwise are incorrect. (SMF, ¶ 27-29, 42-43) Rydzanich never received payments from DIRECTV. (SMF, ¶ 30) Rydzanich admits to being interviewed, hired, trained, scheduled, supervised and paid directly and exclusively by Halsted throughout his employment with Halsted performing DIRECTV installation work. (SMF, ¶¶ 14-19) Rydzanich admits that, during his employment with Halsted, he was paid directly and solely by Halsted. (SMF, ¶ 30) Rydzanich also admits that he was paid based on the line items that he completed on his work orders. (SMF, ¶ 22) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 14 of 44 - 7 - Halsted provided Rydzanich with the equipment, vehicle, and other small parts needed for him to perform DIRECTV installation work. (SMF, ¶¶ 20, 24) Rydzanich reported to Halsted’s warehouse to pick up equipment or attend company meetings. (SMF, ¶¶ 17, 23) Rydzanich admits that Halsted management reviewed his work performance. (SMF, ¶ 21) Rydzanich admits that the work orders he completed for Halsted reflected the sale of services to DIRECTV customers. (SMF, ¶¶ 14, 22) Rydzanich admits that he was paid a certain amount for installing one satellite dish and receiver, and that he was paid additional amounts for installing additional receivers at a customer’s home. (SMF, ¶ 25) Rydzanich admits he wanted to complete work orders as quick and as efficient as possible. (SMF, ¶ 19) Approximately a year later, in June 2011, Halsted was acquired by MasTec. (SMF, ¶¶ 5, 31) As a result of the acquisition, Rydzanich became an employee of MasTec. (SMF, ¶ 32) Rydzanich continued performing DIRECTV satellite installation work through MasTec. (SMF, ¶¶ 31, 40) Rydzanich was hired, trained, scheduled, supervised, paid and controlled directly and exclusively by MasTec throughout the time that he performed DIRECTV installation work. (SMF, ¶ 34) Rydzanich attended meetings and trainings and reported to work at MasTec’s warehouse, or at the customer’s home each workday. (SMF, ¶¶ 35-36) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 15 of 44 - 8 - MasTec provided Rydzanich with the equipment, vehicle, and other small parts needed for him to perform DIRECTV installations. (SMF, ¶ 38) Rydzanich picked up supplies from MasTec’s warehouse. (SMF, ¶ 36) Rydzanich admits that MasTec distributed job assignments and set the order in which Rydzanich was required to complete his jobs on his handheld device, which was supplied by MasTec. (SMF, ¶ 37) During his employment with MasTec, Rydzanich also installed satellite internet equipment for WildBlue, a completely separate and distinct company from DIRECTV. (SMF, ¶ 39) Rydzanich accepted compensation throughout his employment with MasTec pursuant to MasTec’s piece rate compensation methodology. (SMF, ¶ 40) Rydzanich admits that MasTec paid him over the minimum wage, paid him overtime, and guaranteed that he received minimum wage for all hours worked in the form of a minimum wage adjustment. (SMF, ¶ 41) Rydzanich admits that the allegations in the Amended Complaint that he did not receive overtime or minimum wage are incorrect. (SMF, ¶¶ 42-43) MasTec issued Rydzanich’s paychecks and tax forms during his employment with MasTec. (SMF, ¶ 44) DIRECTV never issued Rydzanich a paycheck or any tax forms. (SMF, ¶ 44) Rydzanich resigned his employment with MasTec in 2013. (SMF, ¶ 45) Rydzanich contacted his supervisor at MasTec to turn in his resignation. (SMF, ¶ 45) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 16 of 44 - 9 - IV. ARGUMENT A. Standard of Review Summary judgment is appropriate when there is “no genuine issue as to any material fact,” and “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Vilches v. Travelers Cos., 413 F. App’x 487, 491 (3d Cir. 2011). “Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has established that there is no genuine issue of material fact, the burden of production shifts to the non-moving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, establish that there is a specific and genuine issue of material fact warranting a trial. Celotex, supra, 477 U.S. at 324. Significantly, when the moving party has carried its burden, “the responding party must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 17 of 44 - 10 - Thus, the factual question for a court considering summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, supra, 477 U.S. at 251-252. B. DIRECTV Is Entitled To Summary Judgment On All Of Rydzanich’s Claims Because DIRECTV Never Employed Rydzanich During His Claim Period It is axiomatic that liability for violations of the FLSA requires the existence of an employment relationship between the plaintiff and the defendant. Thus, absent evidence of such a relationship between Rydzanich and DIRECTV while Rydzanich performed satellite installation work through the Halsted or MasTec, DIRECTV is entitled to summary judgment with respect to all of Rydzanich’s claims.2 1. Rydzanich’s Employment Theory Under the FLSA, an individual may be jointly employed by more than one entity at the same time. See In re Enterprise Rent-A-Car Wage & Hour 2 Courts have repeatedly acknowledged that wage claims asserted under the PMWA and PWPCL parallel like claims when asserted under the FLSA. Accordingly, all of the FLSA analyses and defense set forth herein apply equally to Rydzanich’s PMWA and PWPCL claims, and Defendants are entitled to summary judgment as to those state law claims for the same reasons as apply to Rydzanich’s FLSA claims. See Baum v. Astrazeneca LP, 372 Fed. Appx. 246, 248 n.4 (3d Cir. 2010); Levitt v. Technical Educ. Servs., Inc., 2012 WL 3205490, at *3 (E.D. Pa. Aug. 7, 2012); Signora v. Liberty Travel, Inc., 886 A.2d 284, 296 (Pa. Super. 2005). Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 18 of 44 - 11 - Employment Practices Litigation, 683 F.3d 462, 469 (3d Cir. 2012) (“A determination as to whether a defendant is a joint employer ‘must be based on a consideration of the total employment situation and the economic realities of the work relationship.’”) (citing Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)). Rydzanich predicates his claims against DIRECTV solely on the allegation that DIRECTV jointly employed him along with Halsted and MasTec, the entities that Rydzanich admits directly hired him, paid him, and provided him work orders. (SMF, ¶ 15, 18, 34, 37) Rydzanich does not contend, nor does he have any evidence to support the contention, that he was directly employed by DIRECTV during his claim period. It is axiomatic that DIRECTV did not jointly employ Rydzanich along with Halsted and MasTec because Halsted and MasTec were independent, separate companies. See Roslov v. DIRECTV, C.A. No. 4:14-CV-00616 BSM, slip op., at *23 (E.D. Ark. Nov. 4, 2016) (granting summary judgment to DIRECTV because the plaintiff satellite technicians who worked for DIRECTV’s contractors were both (1) independent contractors, and (2) not jointly employed by DIRECTV). Here, DIRECTV is entitled to summary judgment because, under the governing standards, Rydzanich was an employee of the Halsted and later MasTec, and was not jointly employed by DIRECTV. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 19 of 44 - 12 - 2. The Applicable Joint Employment Standard The “first inquiry in most FLSA cases is whether the plaintiff has alleged an actionable employer-employee relationship.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 148 (3d Cir. 2014). Under the FLSA, an “employee” is “any individual employed by an employer,” 29 U.S.C. § 203(e)(1), and an “employer” includes any individual or entity “acting directly or indirectly in the interest of an employer in relation to an employee.” Id. at § 203(d). The Third Circuit analyzes whether a defendant is a joint employer under the FLSA using a fact-intensive, plaintiff specific analysis referred to as the Enterprise factors. See In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, 683 F.3d 462, 469 (3d Cir. 2012) (“A determination as to whether a defendant is a joint employer ‘must be based on a consideration of the total employment situation and the economic realities of the work relationship.’”) (citing Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)). The Enterprise factors as enumerated by the Third Circuit include whether the alleged employer had: “(1) authority to hire and fire employees (“Hire/Fire Authority”); (2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours (“Conditions of Employment Authority”); (3) day-to-day supervision, including employee discipline (“Supervision”); and (4) control of employee records, including payroll, Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 20 of 44 - 13 - insurance, taxes, and the like (“Recordkeeping”).” In re Enterprise, 683 F.3d at 469-470; see also Doc. No. 73 at 3. “[T]hese factors do not constitute an exhaustive list of all potentially relevant factors” and are not necessarily the “sole considerations” that enter into a determination of joint employer status. In re Enterprise, 683 F.3d at 469-470. Because the Court must balance multiple factors, “summary judgment may still be appropriate even if not all of the factors favor one party.” Id. at 471. To prevail, a plaintiff must ultimately show that the alleged employer exercises “significant control.” Id. at 470. Significantly, numerous federal district courts have granted summary judgment to satellite and cable service providers, including DIRECTV, in cases where the service provider’s liability turned on issue of independent contractor and/or joint employment status. Roslov, supra, slip op., at *23 (summary judgment granted DIRECTV on FLSA claims where the plaintiff satellite technicians were found to be independent contractors of DIRECTV installation service providers and finding DIRECTV was not a joint employer); Bennett v. UniTek Global Services, LLC, 2013 U.S. Dist. LEXIS 128350 (N.D. Ill. Sept. 9, 2013) (same); Jean-Louis v. Metropolitan Cable Comm’ns, Inc., 838 F. Supp. 2d 111 (S.D.N.Y. 2011) (summary judgment granted Time Warner on cable installer wage claims based on Time Warner’s alleged status as the joint employer of its subcontractor’s technicians); Lawrence v. Adderley Indus. Inc., 2011 WL 666304 (E.D.N.Y. 2011) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 21 of 44 - 14 - (summary judgment granted Cablevision on same basis); Thornton v. Charter Communications, LLC, 2014 WL 4794320 (E.D. Mo. 2014) (summary judgment granted Charter Communications on same basis); Zampos v. W&E Communications, Inc., 970 F. Supp. 2d 794 (N.D. IL 2013) (summary judgment granted to Comcast on same basis); Valdez v. Cox Communications Las Vegas, Inc., 2012 WL 1203726 (D. Nev. 2012) (summary judgment granted Cox Cable on same basis); Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 693-694 (D.Md. 2010) (summary judgment granted Comcast on same basis). 3. Rydzanich Was Not Jointly Employed By DIRECTV The undisputed facts establish that DIRECTV does not qualify as Rydzanich’s joint employer based on the four factors identified in Enterprise, supra, 683 F.3d at 469-470. Rydzanich admits that he was hired directly and exclusively by Halsted and MasTec. (SMF, ¶¶ 13, 21, 31) Rydzanich admits that he interviewed solely with Halsted prior to his employment, that MasTec directly hired him through its acquiring Halsted, and that he discussed his pay package directly and exclusively with Halsted and MasTec, respectively. (SMF, ¶¶ 15, 22, 32, 34, 40) Rydzanich also admits that he voluntarily terminated his employment with MasTec. (SMF, ¶ 45) Rydzanich admits that MasTec, not DIRECTV, had the authority to terminate his employment. (SMF, ¶ 44) Thus, DIRECTV did not play any role in Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 22 of 44 - 15 - connection with Rydzanich’s employment and termination thereof. (SMF, ¶¶ 15, 22, 32, 34, 40, 44-45) It follows that the first factor identified in Enterprise (Hire/Fire Authority) weighs against joint employment. Rydzanich admits that he received his training as a satellite technician from Halsted and MasTec. (SMF, ¶¶ 16, 34-35) DIRECTV did not play a role in that training. (Id.) Rydzanich admits that his work assignments came directly from Halsted and MasTec, including the hours he would work. (SMF, ¶¶ 15, 17-18, 21, 34, 36-37) Rydzanich also admits that he was directed by Halsted and MasTec as to which jobs he was to perform and how he was to perform them. (Id.) Rydzanich admits that he would report back to Halsted and MasTec when a job was completed. (Id.) Rydzanich admits that he received discipline solely from Halsted and MasTec. The third factor identified in Enterprise (Supervision) thus also weighs against joint employment. It is also beyond dispute that DIRECTV exercised no authority over and had no knowledge of the rates, methods, calculations and/or timing by which Rydzanich was paid by Halsted or MasTec. (SMF, ¶¶ 15, 22-23, 25-30, 34, 40-44) Rydzanich admits that Halsted and MasTec set his compensation, that he was paid by Halsted or MasTec for the work he performed, and that he made any complaints regarding his pay to Halsted and MasTec. (Id.) Rydzanich never received any direct payments from DIRECTV for his installation work. (SMF, ¶ 44) DIRECTV Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 23 of 44 - 16 - maintained no timekeeping, compensation or personnel files regarding Rydzanich, and he was not subject to any of DIRECTV’s employee policies or procedures. (SMF, ¶¶ 11, 15, 22-23, 25-30, 34, 40-44); see also Roslov, supra, slip op., at *15 (DIRECTV’s maintenance of “identification numbers, names and status information” regarding its service providers’ technicians held to be “nothing more than quality control information” insufficient to support joint employment). As such, the third and fourth factors identified in Enterprise (Conditions of Employment Authority and Recordkeeping) also fail to support a finding of joint employment. 4. Rydzanich’s Anticipated Arguments In Support Of His Joint Employment By DIRECTV Are Without Merit Rydzanich may argue that certain quality control measures and metrics that DIRECTV use to ensure the satisfaction and safety of DIRECTV’s customers somehow equates to control over his working conditions. But Rydzanich has no evidence that these quality control measures/metrics were ever directly used by DIRECTV to exercise any control over him. Moreover, numerous courts have cautioned that the use of metrics and other benchmarks and standards to ensure contractual compliance and quality control by a subcontractor and its technicians does not support a finding of joint employment. See Roslov, supra, slip op., at *16 (“While DirecTV’s installation standards and uniform requirements certainly Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 24 of 44 - 17 - provided expectations, installation specifications and quality control measures are ‘entirely consistent with the standard role of a contractor who is hired to perform highly technical duties,’” quoting Herman v. Mid-Atlantic Installation Services, Inc., 164 F. Supp. 2d 667, 672 (D. Md. 2000), aff’d 16 Fed. Appx. 104 (4th Cir. 2001); Zheng v. Liberty Apparel Co., 355 F.3d 61, 75 (2d Cir. 2003) (“supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry, as such supervision is perfectly consistent with a typical, legitimate subcontracting arrangement,” emphasis added); Jean- Louis, supra, 838 F. Supp. 2d at 127 (Time Warner’s tracking data regarding the performance of its subcontractors’ technicians was merely an element of quality assurance, and did not evidence control sufficient to create a triable issue of fact on the issue of joint employment); Thornton, supra, 2014 WL 4794320, at *14 (quality control measures imposed on subcontractors by Charter Communications did not evidence “control” so as to support a finding of joint employment of its subcontractor’s technicians); Jacobson, supra, 740 F. Supp. 2d at 691 (“Comcast’s quality control procedures ultimately stem from the nature of their business and the need to provide reliable service to their customers, not the nature of the relationship between the [subcontractor’s] technicians and Comcast”). Rydzanich may also argue that he was required to perform his DIRECTV installation work pursuant to specifications established by DIRECTV, and with Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 25 of 44 - 18 - equipment provided to Halsted and MasTec by DIRECTV. In addition, Rydzanich may contend that his work orders were initially assigned through SIEBEL, a work order management system that DIRECTV uses to preliminarily soft book work orders based on the skill sets, availability and locations of individual technicians. Such arguments, however, fall far short of establishing DIRECTV’s actual exercise of control over Rydzanich’s work. First, the installation and equipment specifications that DIRECTV imposes upon HSPs such as MasTec, are intended to ensure that the satellite television services that DIRECTV sells its customers are satisfactory and perform as promised. As previously noted, it is well-settled that requiring a contractor to perform work in compliance with standards set by a principal does not make the principal a joint employer of the contractor’s employees. See Roslov, supra, slip op., at *13 (“Quality control ... is not the type of authority contemplated by the FLSA” to establish joint employment); Jacobson, supra, 740 F. Supp. 2d at 692 (control exercised over a subcontractor by an alleged joint employer for quality control purposes is “qualitatively different from the control exercised by employers over employees”). Second, DIRECTV’s preliminary “soft booking” of work orders to specific individuals through SIEBEL is not equivalent to establishing the work schedules of technicians employed by HSPs such as Rydzanich. The preliminary assignments Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 26 of 44 - 19 - made through SIEBEL are provided to HSPs such as MasTec and not the HSPs technicians. Most HSPs, including MasTec, reassign the work orders they receive through SIEBEL to their own employee technicians as they see fit. Here, Rydzanich admits that he received all of his initial work orders directly from Halsted and MasTec, and that Halsted and MasTec could assign him additional work orders throughout the day. Rydzanich may also argue that he received equipment indirectly from DIRECTV through Halsted and MasTec, and that this equipment was required to perform his installation work. But the fact that equipment owned and supplied to Halsted and/or MasTec by DIRECTV, and was later used by Rydzanich to perform his DIRECTV installation work, does nothing to support his joint employment theory of recovery. The satellite television services sold by DIRECTV require the installation of sophisticated and proprietary DIRECTV equipment in order to work. This fact is in no way indicative of the employee control necessary to support a finding of joint employment. See Roslov, supra, slip op., at *14 (DIRECTV’s imposition of “installation standards” on service providers does not support a finding of joint employment); Jacobson, supra, 740 F. Supp. 2d at 693 (the fact that Comcast supplied certain equipment to its subcontractors’ technicians did not support a finding of joint employment); Lawrence, supra, 2011 WL 666304 at *10 (the fact that subcontractor technicians installed and serviced Cablevision Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 27 of 44 - 20 - equipment did not support a finding of joint employment). Finally, Rydzanich may argue that simply because he was required to wear a shirt and carry an identification badge with the DIRECTV logo, and because he installed DIRECTV equipment at the homes of DIRECTV customers, he must have been jointly employed by DIRECTV. But it is now well-settled that facts such as these are alone insufficient to support a finding of joint employment. See Roslov, supra, slip op., at *11 (the fact that plaintiff service technician “wore DirecTV apparel, worked only on DirecTV work orders, and were reminded of DirecTV’s standards” held insufficient to support a finding that DIRECTV employed the plaintiff for purposes of the FLSA). C. Defendants Are Entitled To Summary Judgment With Respect To All Of Rydzanich’s Wage Claims Because They Did Not Suffer Or Permit The Work Upon Which Rydzanich Predicates Those Claims Assuming, arguendo, that DIRECTV was in fact Rydzanich’s joint employer, Rydzanich can only recover on his wage claims if Defendants “knew or should have known” he was performing the work upon which those claims are based. Whitaker v. Pac. Enters. Oil Co., 1992 U.S. App. LEXIS 5135, at *3 (10th Cir. Mar. 9, 1992). Here, Rydzanich cannot demonstrate that Defendants had actual knowledge of his purported hours worked. Again, it is undisputed that DIRECTV did not establish or monitor Rydzanich’s work schedule or keep a record of his hours worked. (SMF, ¶¶ 18, 37) It is also undisputed that DIRECTV Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 28 of 44 - 21 - did not pay Rydzanich for his work time, or have knowledge of the rates, methodology or timing of Rydzanich’s pay. (SMF, ¶¶ 30, 44) In regard to MasTec, Rydzanich admits that he intentionally underreported his hours to MasTec to enable him to receive additional work orders to increase his piece rate earnings. (SMF, ¶ 41) Rydzanich’s falsification of his time records prevented MasTec from having knowledge of any time worked by him and not reported in violation of MasTec’s policies. (SMF, ¶ 41) Similarly, Rydzanich cannot show that DIRECTV had constructive knowledge of his purported work time. “The FLSA’s standard for constructive knowledge in the overtime context is whether the [employer] ‘should have known,’ not whether it could have known.” Hertz v. Woodbury Cty., 566 F.3d 775, 782 (8th Cir. 2009). Thus, although Rydzanich may argue that DIRECTV could have obtained knowledge of his hours worked through the SIEBEL work order management system, SIEBEL is neither a timekeeping system nor a payroll system; SIEBEL simply facilitates the issuance, performance, and completion of DIRECTV work orders. (SMF, ¶ 11) For DIRECTV to use SIEBEL in an attempt to discern Rydzanich’s hours worked would have forced them to “engage in actions beyond the ‘reasonable diligence’ the law requires of employers when determining whether their employees are working overtime.” See Hertz, supra, 566 F.3d at 782. Moreover, and just as importantly, any attempt by DIRECTV to Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 29 of 44 - 22 - ascertain Rydzanich’s actual hours worked through SIEBEL would have been futile because SIEBEL has no timekeeping component. (SMF, ¶ 17) Although SIEBEL does reflect the completion of work orders, it does not record the actual amount of time that was required to complete those work orders. (SMF, ¶ 17) In that regard, Rydzanich admits that every job is different and that the HSPs could transfer additional work order to him throughout the day. (SMF, ¶ 25) D. Defendants Are Entitled To Summary Judgment With Respect To Rydzanich’s Overtime Claim Under The FLSA Because Rydzanich Was Exempt Assuming, arguendo, that Rydzanich was jointly employed by DIRECTV and his overtime claims are not otherwise barred, Rydzanich’s overtime claims against Defendants are barred by 29 U.S.C. § 207(i). That statute provides an overtime exemption that is applicable to Rydzanich provided the following three elements can be established: (1) DIRECTV is a retail or service establishment; (2) more than half of Rydzanich’s compensation for a representative period was in the form of commissions; and (3) Rydzanich’s regular rate of pay exceeded one and one-half times the applicable minimum wage. See Reich v. Delcorp, Inc., 3 F.3d 1181, 1182 (8th Cir. 1993); Alvarado v. Corp. Cleaning Servs., Inc., 782 F.3d 365, 366 (7th Cir. 2015); Schwind v. EW & Assocs., Inc., 371 F. Supp. 2d 560, 563 (S.D.N.Y. 2005); Jones v. Tucker Comm’ns, Inc., No. 5:11-CV-398 (MTT), 2013 WL 6072966, at *4 (M.D. Ga. Nov. 18, 2013). Significantly, federal district courts Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 30 of 44 - 23 - have repeatedly applied the “7(i)” exemption to cable and satellite installation technicians like Rydzanich, and done so based on facts virtually identical to those present here. See Matrai v. DirecTV, LLC, 168 F. Supp. 3d 1347, 1358-1365 (D. Kan. 2016) (applying 7(i) exemption to satellite technicians engaged by subcontractors of DIRECTV); Jones v. Tucker Comm’ns., Inc., 2013 WL 6072966, at *4-11 (M.D. Ga. 2013) (applying 7(i) exemption to cable technicians engaged by subcontractors of Charter Communications and finding that defendant’s status as a subcontractor of Charter Communications did not impact the retail nature of the business); Owopetu v. Nationwide CATV Auditing Servs., Inc., 2011 WL 4433159, at *3-7 (D. Vt. 2011) (same). 1. DIRECTV Is A Retail Or Service Establishment Section 207(i) does not define the phrase “retail or service establishment,” although some courts look to the language of the now repealed § 213(a)(2) for a definition. See Johnson v. Wave Communications, GR LLC, 4 F. Supp. 3d 423, 434; Kelly v. A1 Tech., 2010 WL 1541585, at *10 (S.D.N.Y. 2010); English v. Ecolab, Inc., 2008 WL 878456, at *2 (S.D.N.Y. 2008). Section 213(a)(2) defined the phrase as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” See also 29 C.F.R. § 779.411. Whether a business is “recognized” within an industry as “retail” depends on the Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 31 of 44 - 24 - “character” of the establishment; i.e., its principal activity or purpose. See 29 C.F.R. § 779.302. In that regard, a retail or service establishment is one that serves the everyday needs of the community, provides services at the end of the stream of distribution, and provides those services for the comfort and convenience of the public in the course of its daily living. 29 C.F.R. § 779.318. In Matrai, the court analyzed the retail or service establishment prong of the 7(i) exemption at great length, and expressly held that DIRECTV qualifies as such an establishment. The Matrai court explained: “DIRECTV meets § 7(i)’s requirement of a “retail or service establishment” as it was understood and applied in Alvarado [v. Corporate Cleaning Services, Inc., 782 F.3d 365 (7th Cir. 2015)]. DIRECTV is selling an everyday service delivered through sophisticated equipment installed in the retail consumers’ homes. As demand drops for installing and repairing the sophisticated equipment, DIRECTV cannot make up for it by using the installers to make more product like a manufacturer would. See Alvarado, 782 F.3d at 369. DIRECTV sells its services to the ultimate customers, and the equipment is installed and serviced in the customers’ homes and they do not resell those services or equipment. Id. The purpose of the exemption appears to be served in covering DIRECTV’s use of commissioned installers. The court also is convinced that DIRECTV meets the definition of a “retail or service establishment” based on judicial deference to the DOL’s regulations as a guide in applying the exemption.” Id., at 1360. The facts relied on by the Matrai court regarding DIRECTV’s business structure are identical to those in this case. The business of DIRECTV is to Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 32 of 44 - 25 - provide satellite television services to consumers. (SMF, ¶ 1) Well more than 75% of DIRECTV’s revenue is generated from the sales of goods and services to the end user and is not for resale. (SMF, ¶ 2) DIRECTV provides its services for the comfort and convenience of the public in the course of their daily living. (SMF, ¶ 1) Rydzanich’s job was to install DIRECTV satellite television services in the homes of DIRECTV’s customers. (SMF, ¶¶ 13, 15, 31, 34) The installation of DIRECTV satellite equipment is recognized as retail within DIRECTV’s industry. (SMF, at ¶ 1) And, like the Matrai court, other federal district courts have found that providing, servicing, and installing television and broadband service (cable or satellite) entails a “retail concept.” See, e.g., Owopetu, supra, 2011 WL 4433159 at *4. 2. Rydzanich Was Paid Commissions The FLSA does not define the term commission, but whether a payment method is properly characterized as a commission for purposes of the 7(i) exemption is an issue of law. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir. 2001); Parker v. NutriSystem, Inc., 620 F.3d 274, 277 (3d Cir. 2010); Johnson, supra, 4 F. Supp. 3d at 442. Courts interpreting this exemption have held that “a commission system pays employees upon a sale, at a rate that is related to the price of the sale, and for work involving irregular hours.” Matrai, supra, 168 F. Supp. 3d at 1364. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 33 of 44 - 26 - Rydzanich claims that he was paid on a “piece rate” basis, but the “nomenclature” used to characterize compensation does not determine whether the compensation at issue consists of commissions. Id., at 1364-1365. In Matrai, the technicians installing DIRECTV services were paid for jobs at a rate that varied depending on the value of the services (based on the number of outlets and receivers), and any additional products sold (such as upgrades and the protection plan). Id. Moreover, the amount of the technician’s pay did not turn on the actual time it took the technician to complete the job. Id., at 1365. The more jobs technicians completed in a day, the more money they were paid. Id. As a result, technicians who wanted to make more money had an incentive to work efficiently and take on additional jobs. Id. Technicians also worked irregular hours. Id. Based on these facts, the Matrai court concluded that “a commission system of compensation” existed. Id. The same facts upon which the Matrai court relied in applying the 7(i) exemption are present here. Rydzanich admits that he was paid based on the work orders that he closed and that his compensation did not turn on how long it took to complete the work order. (SMF, ¶¶ 22, 25, 40) Those work orders reflected the sale of services to a DIRECTV customer. (SMF, ¶¶ 1, 13, 31) Rydzanich admits that he was paid certain amounts for performing certain services, including installing satellites dishes and receivers. (SMF, ¶¶ 22, 25, 40) Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 34 of 44 - 27 - Consistent with Matrai, other district courts have found that production- based pay identical to the pay that Rydzanich admits he received constitutes commissions for purposes of the 7(i) exemption. See Jones, supra, 2013 WL 6072966 at *4-11 (granting summary judgment based on 7(i) exemption and finding that cable television installers were paid commissions where they were paid a set amount per task, the length of time they took to complete jobs did not determine their compensation, they had the opportunity to pick up additional jobs during the day, and technicians who completed many jobs per week were paid more than technicians who completed few). 3. Rydzanich’s Regular Rate Of Pay Exceeded One And One Half Times The Applicable Minimum Wage The regular rate of pay under the FLSA is “the rate per hour, computed for the particular workweek by a mathematical computation in which hours worked are divided into straight-time earnings for such hours to obtain the statutory regular rate.” See 29 C.F.R. § 779.419 (titled, “Dependence of the section 7(i) overtime pay exemption upon the level of the employee’s ‘regular rate’ of pay”). This straightforward computation is more difficult where the “straight-time earnings” in question consist of commissions. According to the United States Department of Labor, “if it is not possible or practicable to allocate the commission among the workweeks of the period in proportion to the amount of commission actually earned or reasonably presumed to be earned each week, some other reasonable and Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 35 of 44 - 28 - equitable method may be adopted.” 29 C.F.R. 778.120. One such method is to divide an employee’s average weekly compensation by his weekly hours worked. See Schwind v. EW & Associates, Inc., supra, 371 F. Supp. 2d at 568, n.8. At all times relevant to Rydzanich’s overtime claims, the federal minimum wage was $7.25 per hour. 29 U.S.C. § 206. One and one-half times $7.25 is $10.88. Rydzanich’s most conservative estimate of his weekly earnings as a satellite technician is $700, and his least conservative estimate of his average weekly work time is 60 hours. (SMF, ¶ 47) Simple arithmetic thus confirms that Rydzanich’s regular rate of pay was no less than $11.67 per hour, which is more than one and one-half times the applicable minimum wage. In sum, and based on all of the foregoing, the prerequisites for application of the 7(i) exemption to Rydzanich exist, and Defendants are entitled to summary judgment on Rydzanich’s overtime claim under the FLSA. E. Defendants Are Entitled To Summary Judgment With Respect To Rydzanich’s Minimum Wage Claim Under The FLSA And PMWA Rydzanich admits that he was paid the minimum wage for all hours worked and therefore Defendants are entitled to summary judgment as to his claims seeking minimum wage under the FLSA and PMWA. (SMF, ¶¶ 27-29, 41-43) Moreover, for the reasons set forth above in Section III.D.3 of this memorandum, Defendants are entitled to summary judgment as the undisputed facts confirm that Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 36 of 44 - 29 - Rydzanich’s hourly rate of pay (i.e., $11.67) for his satellite technician work with Halsted and MasTec was always well more than the applicable minimum rate of $7.25 per hour. F. Defendants Are Entitled To Summary Judgment With Respect To All Of Rydzanich’s Claims Because Rydzanich Cannot Prove His Alleged Damages As A Matter Of Just And Reasonable Inference Rydzanich’s claims are meritless because Rydzanich admits that he received overtime and that he was never paid less than minimum wage, and that the allegations in the Amended Complaint stating otherwise are incorrect. (SMF, ¶¶ 28-29, 42-43) Even if Rydzanich’s claims were not otherwise barred, Defendants are entitled to summary judgment because Rydzanich cannot establish the amount of his damages. An employee who sues for unpaid wages “has the burden of proving that he performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds. Where the employee alleges that the employer’s time and pay records are “inaccurate or inadequate,” and the employee cannot offer a convincing substitute for those records, the employee’s burden to prove the amount and extent of his damages may be relaxed. In those circumstances, the employee may only be required to (1) demonstrate that he has in fact performed work for which he was improperly compensated, and (2) produce evidence sufficient to demonstrate “the amount and extent of that work as a matter of just and reasonable Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 37 of 44 - 30 - inference.” Id. at 687. As explained below, Rydzanich cannot carry his burden of proof even under this relaxed standard. Rydzanich has no competent evidence to establish the amount and extent of his alleged unpaid wages. Rydzanich’s deposition testimony and other sworn statements regarding his hours worked, compensation and damages are completely contradictory and inconsistent. For example, Rydzanich alleges in his Complaint that he worked an average of 60 hours per week, of which 20 hours were unpaid. (SMF, ¶ 47) In his interrogatory responses, however, Rydzanich states that he worked 5 to 20 hours of unpaid time each week. (SMF, ¶ 48) Rydzanich later testified at deposition that he worked “maybe 50, maybe 60” hour per week and that there were weeks during which he worked fewer than 40 hours in a week. (SMF, ¶ 49) Rydzanich admits, of course, that he has no personal time records to support his damages claims, that he cannot remember “exactly” how many hours he worked that were unpaid, and that his damages calculation is merely an “educated guess.” (SMF, ¶ 50) In Holaway v. Stratasys, Inc., 791 F.3d 1057, 1059-1060 (8th Cir. 2014), the court affirmed a grant of summary judgment where the plaintiff provided inconsistent testimony regarding his alleged unpaid overtime, rejecting the notion that “contradictory and bare assertions” of unpaid hours worked will suffice. See also DiSantis v. Morgan Properties Payroll Servs., Inc., 2010 WL 3606267, at *13 Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 38 of 44 - 31 - (E.D. Pa. Sept. 16, 2010) (granting defendant’s motion for summary judgment on the basis that plaintiff failed to establish a sound factual foundation for the number of her claimed unpaid overtime hours because her evidence was so “vague, conclusory, and speculative”); Koleshnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 118-119 (S.D.N.Y. 2009) (granting motion for summary judgment where plaintiff failed to provide “concrete particulars” to support her purported unpaid overtime work); Millington v. Morrow Cnty. Bd. of Comm’rs, No. 06-347, 2007 WL 2908817, at *7 (S.D. Ohio Oct. 4, 2007) (“plaintiff’s bare allegations that he worked an average of five hours every week at home is insufficient to meet his burden of proof .... Mere conclusory, factually unsupported allegations are insufficient to withstand a motion for summary judgment”). In sum, Rydzanich has offered conflicting statements, all under oath, regarding the amount and extent of his alleged unpaid time, he admits that his damages are based on his “educated guesses”, and he admits that he has no other evidence to support his damages calculations. Under these circumstances, Defendants are entitled to summary judgment on all of Rydzanich’s claims. G. Defendants Are Entitled To Summary Judgment With Respect To A Portion Of Rydzanich’s FLSA Claims Because Such Claims Are Barred By The Applicable Two Year Statute of Limitations The statute of limitations on Rydzanich’s FLSA claims is two years, absent evidence of a willful violation of the FLSA. See 29 U.S.C. § 255(a); Lugo v. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 39 of 44 - 32 - Farmer’s Pride Inc., 802 F. Supp. 2d 598, 609 (E.D. Pa. 2011) (“Whether the statute of limitations is three years instead of two years depends on whether the employer acted in willful violation of the FLSA.”). “Willful” means that the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); see also Brock v. Richland Shoe Co., 799 F.2d 80, 81 (3d Cir.1986). To prove willfulness under the FLSA, a plaintiff must prove by a preponderance of the evidence that “the employer either knew or showed reckless disregard for whether its conduct was prohibited.” McLaughlin, 486 U.S. at 133. Negligent conduct and even unreasonable conduct does not rise to the level required to show willfulness. Id. It is well-settled that “[u]nreasonableness is insufficient to suffice as proof of knowing or reckless disregard.” Chapman v. BOK Fin. Corp., 2014 U.S. Dist. LEXIS 101652, at *12 (N.D. Okla. July 25, 2014) (citing to McLaughlin, 486 U.S. at 135 n.13). Rather, the “word ‘willful’ is considered synonymous with such words as ‘voluntary,’ ‘deliberate,’ and ‘intentional,’” McLaughlin., 486 U.S. at 133; see also Brock, 799 F.2d at 83 (“willfulness is akin to intentionality”). Where the defendant shows that it reasonably believed it was complying with “existing [FLSA] law”, summary judgment for the employer is appropriate on the issue of willfulness. See Oakes v. Pennsylvania, 871 F. Supp. 797, 801 (M.D. Pa.1995). Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 40 of 44 - 33 - As previously discussed, DIRECTV’s HSP Agreements with MasTec and Halsted expressly required that the HSPs comply with all applicable state and federal wage and hour laws. Further, DIRECTV had absolutely no knowledge relating to Rydzanich’s hours worked or compensation as a satellite installation technician. In regards to MasTec, Rydzanich admits that he intentionally falsified his time records based on his own personal motivations and, thus, MasTec was prevented from having knowledge of any alleged unpaid work time. Without these pieces of information, it was impossible for Defendants to know whether Rydzanich was being properly compensated in accordance with the FLSA. Because a two year statute of limitations applies to all of Rydzanich’s FLSA claim, his claims against DIRECTV are time-barred to the extent they arose before February 25, 2011, and his claims against MasTec are time-barred to the extent they arose before March 31, 2013. (SMF, ¶ 51) H. DIRECTV Is Entitled To Summary Judgment As To Rydzanich’s PWPCL Claim Because He Does Not Have A Contractual Right To Alleged Unpaid Wages The purpose of the PWPCL is to allow employees to recover wages and other benefits that are due from employers pursuant to agreements between the parties. Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590, 613 (May 20, 2015) (quoting Killian v. McCulloch, 850 F.Supp. 1239, 1255 (E.D. Pa. 1994)). In order to recover under the PWPCL, the Third Circuit and Pennsylvania state appellate Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 41 of 44 - 34 - courts have both held that plaintiffs must aver a contractual right to the claimed wages. See Dibello v. Alpha Centurion Sec., Inc., 2015 WL 1344642, *1 (E.D. Pa. Mar. 23, 2015); In re Cargill Meat Solutions Wage and Hour Litigation, 632 F. Supp. 2d 368, 397 (M.D. Pa.) (“a prerequisite for relief under the PWPCL is a contract between employee and employer that sets forth their agreement on wages to be paid”); De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003); see also Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997); Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 888 (Pa. Super. Ct. 2011) aff'd, 106 A.3d 656 (Pa. 2014). Specifically, the Pennsylvania Supreme Court has stated that “[t]he Wage Payment and Collection Law provides employees a statutory remedy to recover wages and other benefits that are contractually due to them.” Oberneder, 696 A.2d at 150 (emphasis added). Likewise, the Third Circuit has held that “the WPCL does not create a right to compensation . . . rather, it provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages.” See De Asencio, 342 F.3d at 309 (emphasis added). It is undisputed that Rydzanich never entered into a contract with DIRECTV. Indeed, Rydzanich cannot point to a contractual provision showing that he has a right to wages from DIRECTV. It follows that Rydzanich cannot establish a necessary element of his alleged PWPCL claim, and that DIRECTV is therefore entitled to summary judgment on that claim. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 42 of 44 - 35 - V. CONCLUSION For all the foregoing reasons, Defendants’ Motion for Summary Judgment as to Plaintiff Rydzanich should be granted. DATED: November 28, 2016 Respectfully submitted, REED SMITH LLP /s/ Thomas E. Hill Thomas E. Hill (ECF User) Admitted pro hac vice; CA 100861 Linda S. Husar (ECF User) Admitted pro hac vice; CA 93989 Christina Tellado (ECF User) Admitted pro hac vice; PA 204246 Reed Smith LLP 355 South Grand Avenue, Suite 2800 Los Angeles, CA 90071-1514 Telephone: 213.457.8000 Valerie E. Brown (ECF User) Admitted pro hac vice; PA 309849 Reed Smith LLP Three Logan Square, Suite 3100 Philadelphia, PA 19103 Telephone: 215. 851.8859 Richard L. Etter (ECF User) PA 92835 Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: 412. 288.3806 Attorneys for Defendants DIRECTV, LLC and MasTec North America, Inc. Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 43 of 44 - 36 - CERTIFICATE OF NON-CONCURRENCE The undersigned certifies that Defendant contacted Plaintiffs’ counsel prior to the filing of this Motion, but was unable to obtain consent from Plaintiffs’ counsel to file the Motion as Unopposed. /s/ Thomas E. Hill Thomas E. Hill CERTIFICATE OF COMPLIANCE WITH WORD LIMIT In accordance with the Court’s Order permitting Defendants to file memorandums not in excess of 9,000 words, the undersigned hereby certifies that the foregoing Memorandum does not exceed 9,000 words. Based on the word processing software used to generate the document, the foregoing Memorandum contains 8,044 words, excluding the caption, title page, table of authorities and contents, signature blocks and certifications. /s/ Thomas E. Hill Thomas E. Hill CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via CM/ECF e-file system on this 28th day of November, 2016, to counsel of record. /s/ Thomas E. Hill Thomas E. Hill Case 3:14-cv-02441-RDM Document 75-1 Filed 11/28/16 Page 44 of 44 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GARY RAPCZYNSKI, et al. v. DIRECTV, LLC, et al. : : : : : : : 3:14-cv-02441-RDM (Judge Robert D. Mariani) STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF STEPHEN RYDZANICH Defendants DIRECTV, LLC and MasTec North America, Inc. (“MasTec”), in conjunction with their Motion for Summary Judgment filed this date, hereby submit the following Statement of Undisputed Material Facts pursuant to Local Rule 56.1. Reference to the record and other materials in support of this Statement are included in the Defendants’ Appendix to Motions for Summary Judgment (“Appendix”), also filed this date, which is incorporated herein by reference. For purposes of their Motion for Summary Judgment, Defendants assume, as they must under Fed. R. Civ. P. 56, the truth of the statements of undisputed fact contained herein. However, Defendants reserve the right to present evidence and argument to contradict Plaintiffs’ claims, allegations, and evidence at trial or as otherwise appropriate. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 1 of 15 - 2 - I. Descriptions Of DIRECTV And MasTec And The Retail Sale Of DIRECTV’s Satellite Television Services A. The Parties 1. DIRECTV sells satellite television services to retail customers throughout the United States. These sales are completed through the installation of satellite dishes, receiver units and other DIRECTV equipment at or in the homes of DIRECTV’s customers. The satellite television services that DIRECTV sells are not for resale, and are made available for the comfort and convenience of members of the general public, who enjoy those services in the course of their daily living. See Declaration of Steven Hill (“Hill Dec.”), dated May 22, 2015, filed in Arnold v. DIRECTV, Inc., E.D. Mo. Case No. 4:10-cv-00352-JAR, Dkt. No. 331-2, attached as Exhibit 1, at ¶¶ 4-5. 2. Well more than 75% of DIRECTV’s revenue is derived from the sale of its satellite television services. See Declaration of Valerie Kirby (“Kirby Dec.”), dated June 16, 2015, filed in Arnold, Dkt. No. 317-1, attached as Exhibit 3, at ¶ 4. 3. Defendant MasTec North America, Inc. (“MasTec”) is a publicly- traded (NYSE) diversified infrastructure construction company that operates throughout the United States and employs nearly 10,000 people. MasTec’s activities include electrical utility transmission and distribution, wind farms, solar farms, other renewable energy, natural gas and petroleum pipeline infrastructure, wireless and wireline satellite communication, industrial infrastructure, and water Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 2 of 15 - 3 - and sewer systems. MasTec’s annual revenues exceed $4.2 billion. Deposition of MasTec 30(b)(6) witness, Jeff Muoio (“Muoio Dep.”) taken in Arnold on April 14, 2015, attached as Exhibit 4, at 238:19-239:11; Excerpt from MasTec, Inc. SEC 10K Statement, attached as Exhibit 8, at 5. B. The Contracts 4. DIRECTV regularly contracts with independent businesses such as MasTec to perform the installation work necessary to complete sales of its satellite television services to retail customers. DIRECTV refers to these installation companies as Home Service Providers (“HSPs”). Deposition of Christopher Altomari (“Altomari Dep.”), taken in Arnold on March 5, 2015, attached as Exhibit 2, at 16:25-17:15; 20:2-21:13. 5. Halsted was a former HSP of DIRECTV. The relationship between Halsted and DIRECTV was governed by an HSP Agreemend identical to the other HSP Agreements. MasTec acquired Halsted in or about June 2011, and Halsted thereafter ceased to exist as an independent HSP. Exhibit C, Muioi MasTec 30(b)(6) Dep. 61:25-62:3; Deposition of MasTec 30(b)(6) witness, Jay Carroll (“Jay Carroll MasTec 30(b)(6) Dep.”) taken on April 28, 2016, attached as Exhibit 5, at 24:14-21; 300:20-301:14. 6. MasTec is currently an HSP of DIRECTV. Exhibit 2, Altomari Dep. at 36:3-10; 50:24-51:8; Dkt. No. 18, Amended Complaint at ¶ 13. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 3 of 15 - 4 - 7. HSPs such as MasTec generally use their own satellite technician employees to perform the installation services specified in their contracts with DIRECTV, which are commonly referred to as “HSP Agreements.” Exhibit 2, Altomari Dep. at 16:25-17:15. 8. In addition, HSPs can and routinely do subcontract with other independent business entities (“Subcontractors”) to perform some of the installation work that the HSP has agreed to provide DIRECTV through its HSP Agreement. Exhibit 2, Altomari Dep. at 17:7-20; 45:20-46:4. 9. DIRECTV’s non-exclusive HSP Agreements with MasTec have always provided that MasTec is an independent contractor of DIRECTV, that DIRECTV is not the employer of MasTec’s satellite technicians or the technicians engaged by any Subcontractor of MasTec, and that MasTec and its Subcontractors are required to comply with all applicable laws in performing the installation services specified in the HSP Agreement, including all laws governing the compensation of satellite technicians who actually perform the installation work. Declaration of Lois Beneke (“Beneke Dec.”), filed in Arnold, Dkt. No. 343, attached as Exhibit 9, at ¶ 10, Dec. Ex. A §§ 1(f), 13, 19. 10. Technicians install DIRECTV receiving equipment in customers’ home or business so that they can receive service. Technicians will only perform a Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 4 of 15 - 5 - work order if a customer first purchases DIRECTV service. Exhibit 2, Altomari Dep. at 65:22-66:4; 70:14-73:11. 11. SIEBEL, the work order management system utilized by DIRECTV to process sales orders, assigns customer work to either the applicable DIRECTV office or HSP responsible for the customer’s zip code. See Exhibit 2, Altomari Dep. at 67:14-68:24; 73:22-74:10. SIEBEL is not a timekeeping system and does not have actual records of hours worked by technicians. Deposition of Kyle Wells, taken in Anderson, et al. v. DIRECTV, LLC, C.A. No. 14-CV-02307 on May 24, 2016, (“Wells Dep.”) attached as Exhibit 10, at 275:7-276:12. 12. SIEBEL’s preliminary assignments of work orders are based on a “technician profile,” which consists of the “three S’s”: (1) the technician’s start and stop location, which may not be a technician’s home address, and is often referred to as “Service Area”; (2) schedule (the days and times the technician is reported as available to receive work orders); and (3) skill set (information on certifications or specialized skill set). The preliminary assignments made through SIEBEL are provided solely to HSPs, such as MasTec, and not to the technicians of the HSPs. Most HSPs, including MasTec, reassign the work orders they receive through SIEBEL to their own employee technicians as they see fit, and thereafter provide Subcontractors work orders on a “bulk” or “bundled” basis. The Subcontractors are then free to assign those “bundled” work order to their individual technicians as Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 5 of 15 - 6 - they deem appropriate. See Deposition of Mary Ellen Baumgardt (“Baumgardt Dep.”), taken in Arnold on July 13, 2011, attached as Exhibit 6, at 38:10-39:21; Ex. 12; Deposition of Daniel Yannantuono Jr., taken in Arnold on June 3, 2015, attached at Exhibit 7, at 67:17-68:15; Exhibit 2, Altomari Dep. at 216:5-217:9; Deposition of Eddie Phillips, taken in Alston, et al. v. DIRECTV, LLC, et al., C.A. No. 3:14-cv-04093-JMC (D.S.C.) on September 23, 2016, attached as Exhibit 11, at 51:9-52:1. II. Rydzanich’s Installation of DIRECTV Satellite Television Services with Halsted and MasTec. 13. In or around Spring 2010, Rydzanich first commenced his DIRECTV satellite installation services through Halsted Communications, Ltd. (“Halsted”) Deposition of Plaintiff Stephen Rydzanich (“Rydzanich Dep.”), taken on November 19, 2016, attached as Exhibit 24, at 21:13-16. 14. Throughout Rydzanich’s employment with Halsted, it maintained its own business headquarters and warehouse, from which it directed its operations, stored equipment, and issued hard copy work orders to its cadre of satellite technicians. Halsted also employed management personnel, office assistants and bookkeepers to support its operations. Exhibit 24, Rydzanich Dep. at 80:14-81:2. Halsted provided satellite installation services for DIRECTV and internet satellite installation services for WildBlue. Exhibit 24, Rydzanich Dep. at 27:9-12. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 6 of 15 - 7 - 15. Rydzanich was interviewed, hired, trained, scheduled, supervised, paid and controlled directly and exclusively by Halsted throughout the approximate year period that he allegedly performed DIRECTV installation work through Halsted. Exhibit 24, Rydzanich Dep. at 31:6-9; 41:1-15; 42:20-43:2; 66:22-68:1; 81:18-82:5; 102:22-103:10; 106:19-23; 162:24-163:2. 16. At the commencement of his employment with Halsted, Rydzanich completed training courses on how to perform satellite installations. Exhibit 24, Rydzanich Dep. at 41:1-15; 66:12-68:1; 81:-18-82:5. Rydzanich’s training included classroom sessions and shadowing a Halsted employee on the job. Exhibit 24, Rydzanich Dep. at 41:10-15; 101:18-22. 17. Rydzanich reported for work either at Halsted’s warehouse or at the first customers home each workday. Exhibit 24, Rydzanich Dep. at 80:20-81:2; 84:2-19; 85:6-10; 86:7-23. Rydzanich would pick up his supplies from the warehouse. Exhibit 24, Rydzanich Dep. at 80:14-19. 18. Halsted distributed job assignments and set the order in which Rydzanich was required to complete his jobs by email on his handheld device, which was supplied by Halsted. Exhibit 24, Rydzanich Dep. at 106:13-107:10. 19. Rydzanich was interested in completing installation quickly and efficiently. Exhibit 24, Rydzanich Dep. at 202:24-204:8. As Rydzanich completed Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 7 of 15 - 8 - assignments, his supervisor would “keep on throwing” him more jobs. Exhibit 24, Rydzanich Dep. at 203:15-20. 20. If Rydzanich needed equipment in the field that he did not have, such as a 40-foot ladder, he would contact his Halsted field supervisor, who would bring the equipment out to Rydzanich. Exhibit 24, Rydzanich Dep. at 109:7-11. 21. Halsted supervisors would review Rydzanich’s performance. Exhibit 24, Rydzanich Dep. at 135:12-22. 22. Halsted provided Rydzanich with a rate card that showed how much he would be paid for each type of job. Exhibit 24, Rydzanich Dep. at 133:7- 135:11. Halsted/MasTec explained, and Rydzanich understood, that he would be compensated for completing “line items” associated with satellite installations and services. Exhibit 24, Rydzanich Dep. at 44:7:12; 69:16-25;133:7-135:11. 23. Halsted also compensated Rydzanich for attending company meetings at the warehouse. Exhibit 24, Rydzanich Dep. at 44:14-25. 24. Halsted provided Rydzanich with the equipment, vehicle, and other small parts needed for him to perform DIRECTV installations. Exhibit 24, Rydzanich Dep. at 79:19-80:25. 25. Rydzanich understood that he would be paid “by line item”, which would be a different amount depending on what type of work he performed, and Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 8 of 15 - 9 - that the line items had to be completed to finish a job. Exhibit 24, Rydzanich Dep. at 83:11-16; 88:12-16. 26. Halsted had a tiered compensation system wherein the piece rates earned by Rydzanich would increase or decreased based on his performance. Exhibit 24, Rydzanich Dep. at 133:16-134:16. Thus, higher performing technicians were paid from a higher rate card. Id. Rydzanich was in the highest compensation tier. Exihibit 24, Rydzanich Dep. at 133:24-134:5. 27. Halsted paid Rydzanich over the minimum wage, paid Rydzanich overtime, and guaranteed him a minimum wage in the form of a minimum wage adjustment. Exhibit 24, Rydzanich Dep. at 162:8-23; 174:4-9; 177:7-24; 28. The allegations in the Amended Complaint that Rydzanich did not receive overtime are incorrect. Exhibit 24, Rydzanich Dep. at 176:10-16. 29. Rydzanich never was paid less than minimum wage. Exhibit 24, Rydzanich Dep. at 177:7-21. 30. Halsted issued Rydzanich’s paychecks and tax forms during his employment. DIRECTV has never issued Rydzanich a paycheck or W-2. Exhibit 24, Rydzanich Dep. at 43:3-7; 205:14-206:22. 31. Approximately a year later, in June 2011, Halsted was acquired by MasTec. Rydzanich continued performing DIRECTV satellite installation services through MasTec. Exhibit 24, Rydzanich Dep. at 28:5-7. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 9 of 15 - 10 - 32. As a result of the acquisition, Rydzanich became an employee of MasTec. Exhibit 24, Rydzanich Dep. at 28:8-17; 31:10-17. 33. Throughout Rydzanich’s employment with MasTec, it maintained its own business headquarters and warehouse, from which it directed its operations, stored equipment, and issued hard copy work orders to its cadre of satellite technicians. Exhibit 24, Rydzanich Dep. at 80:14-81:2. MasTec provided satellite installation services for DIRECTV and internet satellite installation services for WildBlue. Exhibit 24, Rydzanich Dep. at 27:9-12. 34. Rydzanich was hired, trained, scheduled, supervised, paid and controlled directly and exclusively by Mastec throughout the time that he allegedly performed DIRECTV installation work through Mas. Exhibit 24, Rydzanich Dep. at 31:6-9; 41:1-15; 42:20-43:2; 66:22-68:1; 81:18-82:5; 102:22-103:10; 106:19-23; 162:24-163:2. 35. Throughout his employment with MasTec, Rydzanich attended several training sessions regarding installing new devices. Exhibit 24, Rydzanich Dep. at 81:18-82:5. 36. Rydzanich reported for work either at MasTec’s facilities or at the first customers home each workday. Exhibit 24, Rydzanich Dep. at 80:20-81:2; 84:2-19; 85:6-10; 86:7-23. Rydzanich would pick up his supplies from the warehouse. Exhibit 24, Rydzanich Dep. at 80:14-19. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 10 of 15 - 11 - 37. MasTec distributed job assignments and set the order in which Rydzanich was required to complete his jobs by email on his handheld device, which was supplied by MasTec. Exhibit 24, Rydzanich Dep. at 106:13-107:10. 38. MasTec provided Rydzanich with the equipment, vehicle, and other small parts needed for him to perform DIRECTV installations. Exhibit 24, Rydzanich Dep. at 79:19-80:25. 39. During his employment with MasTec, Rydzanich also installed internet equipment for WildBlue, a completely separate and distinct company from DIRECTV. Exhibit 24, Rydzanich Dep. at 28:2-4; 120:23-121:9. 40. Rydzanich accepted compensation throughout his employment with MasTec pursuant to MasTec’s piece rate compensation methodology. Exhibit 24, Rydzanich Dep. at 40:8-22. 41. MasTec paid Rydzanich over the minimum wage, paid Rydzanich overtime, and guaranteed him a minimum wage in the form of a minimum wage adjustment. Exhibit 24, Rydzanich Dep. at 162:8-23; 174:4-9; 177:7-24. Rydzanich intentionally underreported his overtime hours in violation of MasTec’s timekeeping policies in an attempt to obtain more work orders. Exhibit 24, Rydzanich Dep. at 153:3-154:12; 159:4-11. 42. The allegations in the Amended Complaint that he did not receive overtime are incorrect. Exhibit 24, Rydzanich Dep. at 176:10-16. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 11 of 15 - 12 - 43. Rydzanich was never paid less than minimum wage. Exhibit 24, Rydzanich Dep. at 177:7-21. 44. MasTec issued Rydzanich’s paychecks and W-2 forms during his employment with MasTec. DIRECTV never issued Rydzanich a paycheck or W-2. Exhibit 24, Rydzanich Dep. at 43:3-7; 205:23-206:22. Furthermore, MasTec – not DIRECTV – had the authority to terminate his employment. Exhibit 24, Rydzanich Dep. at 199:16-200:15. 45. Rydzanich resigned from employment with MasTec in 2013. Exhibit 24, Rydzanich Dep. at 31:18-23. Rydzanich contacted his supervisor at MasTec, but did not contact DIRECTV, to turn in his resignation. Id. 46. Rydzanich alleges in his Complaint that he worked an average of 60 hours per week, of which 20 hours were unpaid. Dkt. No. 18, Amended Complaint at ¶ 29. 47. Rydzanich’s most conservative estimate of his weekly earnings as a satellite technicians is $700 and his least conservative estimate of his average weekly work time is 60 hours. Dkt. No. 18, Amended Complaint at ¶ 29; Exhibit 24, Rydzanich Dep. at 173:16-174:25. 48. In his interrogatory responses, however, Rydzanich states that he worked 5 to 20 hours of unpaid time each week. Plaintiff Stephen Rydzanich’s Responses to DIRECTV LLC’s First Set Of Interrogatories, attached as Exhibit 25, at p. 6-7. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 12 of 15 - 13 - 49. Rydzanich later testified at deposition that he worked “maybe 50, maybe 60” hours per week. Exhibit 24, Rydzanich Dep. at 174:10-25. He further testified that there were weeks in which he worked fewer than 40 hours. Exhibit 24, Rydzanich Dep. at 157:7-10. 50. Rydzanich has no personal time records to support his damages claims. Exhibit 24, Rydzanich Dep. at 159:4-161:12. In fact, Rydzanich states that his damages calculation is merely an “educated guess.” Id. 51. Rydzanich first alleged claims for unpaid wages against DIRECTV in Arnold. (Arnold Dkt. No. 155-1) Following his dismissal from Arnold, Rydzanich initiated this action. Rydzanich first alleged claims for unpaid wages against MasTec in the Amended Complaint filed in this action on March 31, 2015. (Compare Dkt. No. 18, Amended Complaint at ¶ 30 and Dkt. No. 1, Complaint at ¶ 26) Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 13 of 15 - 14 - DATED: November 28, 2016 Respectfully submitted, REED SMITH LLP /s/ Thomas E. Hill Thomas E. Hill (ECF User) Admitted pro hac vice; CA 100861 Linda S. Husar (ECF User) Admitted pro hac vice; CA 93989 Christina Tellado (ECF User) Admitted pro hac vice; PA 204246 Reed Smith LLP 355 South Grand Avenue, Suite 2800 Los Angeles, CA 90071-1514 Telephone: 213.457.8000 Valerie E. Brown (ECF User) Admitted pro hac vice; PA 309849 Reed Smith LLP Three Logan Square, Suite 3100 Philadelphia, PA 19103 Telephone: 215. 851.8859 Richard L. Etter (ECF User) PA 92835 Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: 412. 288.3806 Attorneys for Defendants DIRECTV, LLC and MasTec North America, Inc. Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 14 of 15 - 15 - CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via CM/ECF e-file system on this 28th day of November, 2016, to counsel of record. /s/ Thomas E. Hill Thomas E. Hill Case 3:14-cv-02441-RDM Document 75-2 Filed 11/28/16 Page 15 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GARY RAPCZYNSKI, et al. : : : : Plaintiff, : No. 3:14-CV-02441-RDM : (Judge Robert D. Mariani) v. : : DIRECTV, LLC, et al. Defendants. : : : : ORDER AND NOW this _____ day of November 2016, upon consideration of the foregoing Motion for Summary Judgment as to Plaintiff Stephen Rydzanich by Defendants DIRECTV, LLC and MasTec North America, Inc. (“Defendants”), as well as the accompanying Memorandum of Law, and the evidentiary material, IT IS HEREBY ORDERED that said Motion is GRANTED and that judgment is hereby entered in favor of Defendants and against Plaintiff. IT IS HEREBY FURTHER ORDERED that the claims asserted by Plaintiff Stephen Rydzanich in Plaintiffs’ Amended Complaint are DISMISSED WITH PREJUDICE. _________________________ Robert D. Mariani United States District Judge Case 3:14-cv-02441-RDM Document 75-3 Filed 11/28/16 Page 1 of 1