Cockman v. Assignment Desk Works LLC

• Decision Date: 03 May 2021
• Docket Number: Civil Action No. 2:19-cv-3082-BHH
• Parties: Katherine Cockman, On Behalf of Herself and All Others Similarly Situated, Plaintiff, v. Assignment Desk Works LLC, Patrick Bryant, and Shawn Moffatt, Defendants.
• Court: U.S. District Court — District of South Carolina

Katherine Cockman, On Behalf of Herself and All Others Similarly Situated, Plaintiff, v. Assignment Desk Works LLC, Patrick Bryant, and Shawn Moffatt, Defendants.

Civil Action No. 2:19-cv-3082-BHH

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

May 3, 2021

Opinion and Order

This matter is before the Court on various motions, including: Plaintiff's Motion for Conditional Class Certification (ECF No. 18); Defendants' Motion for Relief from Mediation (ECF No. 24); Defendant's Motion for Summary Judgment as to Patrick Bryant (ECF No. 27); Defendants' Motion for Summary Judgment (ECF No. 29); Plaintiffs' Motion for Summary Judgment (ECF Nos. 33), and Defendants' Motion to Strike and/or Deny Plaintiffs' Motion for Partial Summary Judgment and/or Award Sanctions to the Defendants (ECF No. 34). For the following reasons: Plaintiff's Motion for Conditional Class Certification (ECF No. 18) is granted; Defendants' Motion for Relief from Mediation (ECF No. 24) is denied as moot; Defendant's Motion for Summary Judgment as to Patrick Bryant (ECF No. 27) is granted; Defendants' Motion for Summary Judgment (ECF No. 29) is denied; Plaintiffs' Motion for Summary Judgment (ECF No. 33) is granted in part and denied in part; and Defendants' Motion to Strike and/or Deny Plaintiffs' Motion for Partial Summary Judgment and/or Award Sanctions to the Defendants (ECF No. 34) is denied.

BACKGROUND

In this action, Plaintiff Katherine Cockman ("Cockman"), on behalf of herself and all others similarly situated, seeks recovery for alleged violations of the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). Additionally, Cockman asserts individual causes of action for retaliation under the FLSA and for breach of contract.

In 1997, Defendant Patrick Bryant ("Bryant") along with a business partner started a company called Go to Team ("GTT"). GTT provides broadcast television services to networks and other producers of television and video production. GTT has a staff of cameramen and other production specialists. Bryant hired Defendant Shawn Moffatt ("Moffatt") to work at GTT in 2006.

In 2013, Bryant and Moffatt purchased Assignment Desk Works LLC ("ADW"), which was a customer of GTT. ADW outsourced some of their video production to GTT staff and crews. When Bryant and Moffatt purchased ADW, they retained the Production Coordinators ("PCs") who were employed by the former owner. Bryant testified that other than adding new roles at the company, ADW's business model is the same as when he and Moffatt purchased it. (Bryant Dep. 35:14-24, ECF No. 33-1.) Bryant owns 90 percent of ADW stock and is Chairman of the Board; Moffatt is Managing Partner of both GTT and ADW.

ADW is a "middleman" in the video production industry. The company provides a service for video production crews and clients. ADW clients range from news, sports, and entertainment organizations to large corporations. ADW books freelance productioncrews for video shoots and charges a percentage to both the crews and the clients for this service. Moffat testified, "You have clients on one side. You have crews on another. [ADW is] in the middle, as a broker. And we mark up to the client and we mark down to the crew." (Moffat Dep. 5:12-15, ECF No. 33-2.) Moffat further testified that the average markup is 22%; however, the best-case scenario is a 30% markup, with a 15% markup to both crews and clients respectively. (Id. 5:16-6:1.) ADW's Employee Manual outlines a 15% markup on each side of the deal. (ECF No. 33-3 at 3.)

ADW and GTT are closely related business entities. The businesses share office space, the same controller, an accounting firm, and some employees. The distinction between them is that ADW books freelance crews, while GTT books crew members that are on its staff. (Moffatt Dep. 17:22-18:1.) Approximately 6% of shoots booked through ADW are covered by GTT crews. (Id. 18:4-6.) ADW and GTT have the same management staff. The organizational chart that Defendants submitted pertains to both companies. (ECF No. 33-4.) Bryant is at the top of the organizational chart for both GTT and ADW as President. (Id.) Moffatt is below him with the title Managing Partner for both companies. (Id.) Courtney Crosby is directly below Moffatt with the title of Operations Manager. (Id.) Moffat testified that Ms. Crosby is responsible for running high-level documents and reports, looking at specific clients, specific crews, potential clients, and revenue streams; she also reaches out to clients on the phone and handles marketing. (Moffatt Dep. 21:7-15.) Erin Gunther who is the Production Manager, falls underneath Ms. Crosby. (ECF No. 33-4.) According to Moffatt, Ms. Gunther focuses on sales and big projects like the Super Bowl. (Moffatt Dep. 23:5-25.) Robin Morton is also a Production Manager even though her name and title are not on the organizational chart. Moffatttestified Ms. Morton supervises the PCs. (Id. 24:20-25). The PCs are the lowest level employees with the exceptions of interns and PC assistants. (Id. 30:4-24.) However, the PC assistant and intern positions are often vacant. (Id.) The PCs do not have the authority to hire or fire employees (Id. 31:3-7.)

The PCs work directly with ADW's clients. Their primary job duty is to book the shoots that generate revenue for ADW. (Id. 35:15-20.) Moffatt described the PCs job duties in the following way: "[T]hey're taking the call, they're dealing with the client, potentially from the very beginning, and they're in front of that client, managing that shoot, managing that crew that they found, that they hired, that they chose for that shoot. And they're . . . on the front lines. . . . They manage the shoot day to day and are directly affecting the business." (Id. 33:9-22.) ADW has hundreds of clients with about 50 to 75 that provide ADW with significant volume. The Employee Manual states, "Each [PC] is equally the first contact for all crewed shoots, booked positions and other services. Any [PC] can work with any client at any time. Clients are not exclusive to [PCs]." (ECF No. 33-3 at 2.)

The Employee Manual is relatively detailed, setting forth how staff should answer the phone, the parameters that apply to ADW's 24-hour availability, the process of hiring vendors, how to make company calendar entries, the process of booking a shoot, pricing, invoicing and billing, customer service strategies, and more. (See ECF No. 33-3.) It further sets forth various instances where PCs are required to get approval from the "Production Manager, General Manager and/or Managing Partner" before taking certain actions. (Id.) For example, approval is required if a vender suggests changes to the ADW Independent Contactor Agreement, or to give a customer a discount in the case of client dissatisfaction.(See id. at 2, 4.) PCs are required to use ADW standard forms, and get them signed, when booking a shoot or dealing with a new client. (See id. at 3; Moffatt Dep. 79:20-25.) The Employee Manual specifies the range within which PCs can negotiate rates:

Assignment Desk shall require the crews to reduce their normal rate by 15% and markup the predesignated rate by at least 15%. This insures a 30% profit margin on all shoots and positions. PCs can negotiate rates with both the Vender and the Client. The goal is to book the shoot. So if you have to reduce profit margin to book the shoot, as long as you're not at break even or negative, then the shoot is profitable and it should be booked. Any further discounts or negotiated rates should involve the Production Manager and/or Managing Partner.

(ECF No. 33-3 at 3.) The Production Manager, General Manager and/or Managing Partner review all invoices generated by PCs using QuickBooks. (Id.) Moffatt testified that when PCs negotiate rates, they are working from guidelines pre-filled in QuickBooks by ADW management, which guideline rates ebb and flow with current rates in the industry given the applicable conditions. (Moffatt Dep. 60:5-61:21.) For instance, guideline rates for a makeup artist, cameraman, audio person, director of photography, and grip are auto filled for the PCs in QuickBooks. (Id. 61:22-62:15.) Moffatt stated he and his Operations Manager, Ms. Crosby, establish these guidelines by reviewing reports in QuickBooks and looking at average rates for a particular position that ADW has charged in the past. (Id. 63:3-17.)

The PCs are paid a starting salary of $28,500.00. (Employment Contract, ECF No. 33-5.) The Employment Contract specifies a two-year term of employment and contains penalties if a PC breaches the agreement. (Id. at 1, 4-5.) The penalty for early termination of the contract by a PC is two months' wages. (Id. at 4.) PCs have a set schedule of 9:00 a.m. to 6:00 p.m. with a one-hour lunch on weekdays. (Moffatt Dep. 96:21-25.) After the first 2 to 3 months, PCs are required to be on-call during evenings and weekends. (Id.83:4-25, 93:88-10.) The Employment Contract does not include the fact that PCs are required to be on-call. (See ECF No. 33-5.) Moffatt testified that ADW works globally and is a "24/7 operation;" therefore, the PCs are expected to respond to calls, emails, and voicemails seeking to book video shoots 7-days-a-week and 24-hours-a-day for a week at a time. (Moffatt Dep. 83:18-22, 84:3-25, 88:22-25, 90:1-18.) Ms. Morton creates the on-call schedule for the PCs. (Id. 25:13-24.) The PCs are not paid additional compensation for the hours they spend working when they are on-call. (Id. 95:23-25.) ADW does not keep records or track the hours the PCs spend working on-call. (Id. 94:2-15.)

Moffatt testified he is aware the PCs work more than 40 hours a week when they are on-call. (Id. 94:4-25.) He further testified that he did not consult with an attorney about whether the PCs' compensation plan complied with the FLSA. (Id. 156:9-12.) Moffat did, however, consult with an attorney about whether GTT video crews' compensation was FLSA compliant,...