     Case: 09-30699 Document: 00511292963 Page: 1 Date Filed: 11/15/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                       November 15, 2010

                                    No. 09-30699                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



LOUIS F. LINDSLEY,

                                          Plaintiff–Appellant

v.

BELLSOUTH TELECOMMUNICATIONS INC; DIRECTIONAL ROAD
BORING INC,

                                          Defendants-Cross Claimants–Appellees




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-6569


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       In the wake of Hurricane Katrina, BellSouth Telecommunications, Inc.
(“BellSouth”) had an immediate need for “splicers” to maintain and repair above-
ground telephone lines. BellSouth contracted with Directional Road Boring, Inc.
(“DRBI”) to perform this work. DRBI sub-contracted with Robert J. Parker d/b/a



       *
        Pursuant to Fifth Circuit Rule 47.5, we have determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.
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                                  No. 09-30699

Parker Communications (“Parker”). Parker hired individual splicers, including
plaintiff Louis F. Lindsley.
      After his employment ended, Lindsley filed suit in federal district court.
Lindsley alleged that he was not adequately paid for hours worked in excess of
forty hours per week, in violation of the Fair Labor Standards Act (“FLSA”). See
29 U.S.C. § 207(a)(1) (requiring that covered employers pay employees at least
one-and-a-half times the regular rate for hours worked in excess of forty hours
per week). BellSouth and DRBI (collectively “Defendants”) filed a motion for
summary judgment, arguing that the FLSA did not cover Lindsley because he
was an independent contractor rather than an employee. The district court
agreed and granted Defendants’ motion for summary judgment. Lindsley timely
appealed. We have jurisdiction under 28 U.S.C. § 1291.
      “To determine if a worker qualifies as an employee [under the FLSA], we
focus on whether, as a matter of economic reality, the worker is economically
dependent upon the alleged employer or is instead in business for himself.”
Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008). To aid in this
inquiry, we consider five non-exhaustive factors: (1) the degree of control
exercised by the alleged employer; (2) the extent of the relative investments of
the worker and the alleged employer; (3) the degree to which the worker’s
opportunity for profit or loss is determined by the alleged employer; (4) the skill
and initiative required in performing the job; and (5) the permanency of the
relationship. Id. The ultimate determination of whether an individual is an
employee under the FLSA is a legal, and not a factual, finding. Brock v. Mr. W
Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir. 1987). Accordingly, “we review the
determination that [plaintiffs] were not employees as we review any
determination of law,” which is de novo. Donovan v. Am. Airlines, Inc., 686 F.2d
267, 270 n.4 (5th Cir. 1982).



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                                 No. 09-30699

      This case is largely controlled by our recent decision in Thibault v.
BellSouth Telecommunications, Inc., 612 F.3d 843 (5th Cir. 2010). Thibault
addressed the issue of FLSA employee status for another splicer hired by
BellSouth in the New Orleans area after Hurricane Katrina. In fact, Louis
Thibault worked for Parker at the same time and in the location as Lindsley,
albeit on different work crews. Like Thibault, Lindsley worked for Parker for
approximately three months, and was paid at a rate of $68 an hour along with
a $50 per diem. The splicers worked twelve to thirteen hour days for thirteen
consecutive days before receiving the fourteenth off. Both reported for work
every morning to get his assignments, and although Defendants inspected their
repair work, they did not instruct either how to actually perform the work. Both
men provided their own equipment, including bucket trucks, and the tools
required for the job valued at approximately $10,000. Defendants provided
additional materials for the splicing including tape and splicing modules.
      In Thibault, this Court held that the plaintiff was not an employee of
Defendants under the FLSA. 612 F.3d at 849. We found that our decision
regarding welders in Carrell v. Sunland Construction, Inc., 998 F.2d 330 (5th
Cir. 1993) provided “substantial guidance” in our analysis. Id. at 846. This is
in contrast to our unpublished decision in Cromwell v. Driftwood Electrical
Contractors, Inc., 348 Fed. Appx. 57 (5th Cir. 2009). In that case, we found that
other splicers performing work in the wake of Hurricane Katrina were
employees under the FLSA, as these splicers were more analogous to the
employee welders in Robicheaux v. Radcliff Material, Inc., 697 F.2d 662 (5th Cir.
1983) than the non-employee welders in Carrell. Cromwell, 348 Fed. Appx. at
60–61. Despite the similarity of facts between the splicers in Thibault and
Cromwell, we noted that Cromwell distinguished Carrell in a way not applicable
to Thibault: “the splicers in Cromwell did ‘not have the same temporary, project-
by-project, on-again-off-again relationship with their purported employers.’”

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Thibault, 612 F.3d at 849 (quoting Cromwell, 348 Fed. Appx. at 60).          The
Cromwell splicers worked for their employers for eleven months, similar to the
Robicheaux welders who worked for the employer for periods ranging from ten
months to three years, and unlike the Carrell welders who worked annually for
the contractor for three to sixteen weeks, and the Thibault splicers who worked
for the contractor for approximately three months. See Cromwell, 348 Fed.
Appx. at 60–61; Thibault, 612 F.3d at 845.
       The Thibault court also distinguished its facts from those in Cromwell in
that Plaintiff Thibault continued to own and operate his own business in
Delaware, overseeing its “operations and multiple employees.” Thibault, 612
F.3d at 849. Thibault also deposited all payments he received from Parker into
his company’s account for “tax reasons.” Id. The Thibault court used this
evidence to show that unlike in Cromwell, “Thibault is a sophisticated,
intelligent business man who entered into a contractual relationship to perform
a specific job for the defendants.” Id.
       Because the facts in this case are so similar to those in Thibault, we will
not repeat the Thibault court’s full analysis of the Hopkins factors. The two
distinctions that Thibault made from Cromwell, however, merit discussion.
Similar to Thibault, Lindsley worked for Parker for approximately three months,
unlike the eleven month employment in Cromwell. Therefore, as we stated in
Thibault, “Cromwell made a distinction from the Carrell welders that does not
apply . . . .”   Thibault, 612 F.3d at 849. Unlike in Thibault, Lindsley did not
own and continue to operate an independent business while working for Parker,
and claims that he was forbidden and unable to work for any other company as
a splicer while with Parker. This distinction does push against part of this
Court’s basis for distinguishing Thibault from Cromwell. However, Lindsley
does have several decades of experience as a splicer, considers himself “self-
employed,” and has paid self-employment tax.          Lindsley’s single material

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                                 No. 09-30699

distinction from Thibault is not strong enough to merit a finding that Lindsley,
unlike Thibault, was “economically dependent” on Defendants. Like Thibault,
this case falls under the umbrella of Carrell rather than Robicheaux.
      For the foregoing reasons, we find that the district court did not err in
granting summary judgment to Defendants. The judgment of the district court
is therefore AFFIRMED.




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