United States District Court, D. Colorado
AURELIO SANCHEZ, DOMINGO SANCHEZ, DANIEL HERNANDEZ, MIGUEL ANGEL GODOY, BENITA ARREOLA, JOSE LUIS ARREOLA, and CLARA ARRELOA, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
SIMPLY RIGHT, INC., CINEMARK USA, INC., DANIEL KILGORE, and BEATRICE PERMANN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge
the Court are Defendant Cinemark USA, Inc.'s Motion for
Summary Judgment [filed November 11, 2016; ECF No.
123] and Plaintiffs' Motion for Partial Summary
Judgment as to Cinemark USA, Inc.'s Status as a Joint
Employer [filed November 18, 2016; ECF No. 134]. The
motions are fully briefed and the Court finds oral argument
(not requested by the partes) will not assist in its
adjudication of the motions. For the following reasons, this
Court respectfully recommends that Plaintiffs' motion be
denied in part and denied without prejudice in part and that
Defendant Cinemark's motion be denied.
(self-described janitorial employees of Defendant Simply
Right, Inc. (“Simply Right”) and their family
members and friends working in Defendant Cinemark USA, Inc.
(“Cinemark”) theaters) initiated this action on
May 7, 2015 and filed the operative Amended Complaint on July
10, 2015 alleging essentially that Simply Right, a cleaning
service contractor, and Cinemark, the contracting party,
failed to pay them minimum wages and overtime
On August 21, 2015, the parties stipulated to stay the claims
of certain Plaintiffs-Aurelio Sanchez, Domingo Sanchez,
Miguel Godoy, Daniel Hernandez, Benita Arreola, and Opt-in
Plaintiff Armida Raya- pending the conclusion of arbitration
proceedings for each of these individuals. The claims of the
remaining Plaintiffs have proceeded through discovery.
issue raised by the present motions concerns whether Cinemark
is a “joint employer” with Simply Right necessary
to demonstrate liability under the Fair Labor Standards Act
(“FLSA”). Cinemark argues that its relationship
with Simply Right was simply one of contractor/subcontractor,
and it had no supervision or control over Simply Right's
employees. Plaintiffs counter that, although they were
employed by Simply Right, they “worked on
Cinemark's premises, with materials and equipment
supplied by Cinemark, ” and “Cinemark managers
used and directed [them] just like they were their own
employees.” Notably, Plaintiffs bring their motion
seeking judgment on behalf of themselves and the
purported class. Therefore, to the extent Plaintiffs'
motion is construed to seek judgment on behalf of the named
Plaintiffs having claims currently before this Court-Jose
Luis Arreola, Clara Arreola, Nazario Arreola, and Maribel
Arreola-the Court will treat the Plaintiffs' motion and
Cinemark's motion as cross motions for summary judgment.
Plaintiffs' motion also seeks judgment on behalf of the
stayed Plaintiffs currently in arbitration. The Court finds
that a ruling on behalf of the stayed Plaintiffs would
constitute a “rul[ing] on the potential merits of the
underlying claims, ” which is prohibited by Supreme
Court precedent. See AT&T Techs., Inc. v.
Comm'cns Workers of Am., 475 U.S. 643, 649-50 (1986)
(“even if it appears to the court to be frivolous, the
[plaintiff's] claim that the employer has violated the
[law] is to be decided, not by the court asked to order
arbitration, but as the parties have agreed, by the
arbitrator.”); see also Int'l Bhd. of Elec.
Workers, Local 111 v. Pub. Serv. Co., 773 F.3d 1100,
1109-10 (10th Cir. 2014) (“We recognize that as a
general rule, ‘in deciding whether the parties have
agreed to submit a particular grievance to arbitration, a
court is not to rule on the potential merits of the
underlying claims.'”) (quoting AT&T Techs.,
Inc., 475 U.S. at 649). As such, the Court will
recommend that Plaintiffs' motion on behalf of Plaintiffs
Aurelio Sanchez, Domingo Sanchez, Miguel Godoy, Daniel
Hernandez, Benita Arreola, and Opt-in Plaintiff Armida Raya
be denied without prejudice.
to the extent the Plaintiffs seek summary judgment on behalf
of the class, Plaintiffs concede that “once a named
plaintiff establishes individual standing, the issue of
whether a named plaintiff can assert claims on behalf of
absent class members is determined at the class certification
stage of the litigation.” Reply, ECF No. 163 at 6-7
(citing Indergit v. Rite Aid Corp., No. 08 Civ. 9361
(PGG), 2009 WL 1269250, at *4 (S.D.N.Y. May 4, 2009)). Thus,
until Judge Moore issues a ruling on certification, the Court
cannot determine whether the named Plaintiffs may seek
judgment on behalf of the purported class. The Court
recommends that Judge Moore reserve judgment as to whether
the Plaintiffs may seek summary judgment concerning the joint
employer issue on behalf of the purported class.
Findings of Fact
for summary judgment are examined under the usual Rule 56
standards, Saieg v. City of Dearborn, 641 F.3d 727,
733-34 (6th Cir. 2011), with the court viewing all facts and
reasonable inferences in the light most favorable to the
nonmoving party. See Edwards v. Briggs & Stratton
Ret. Plan, 639 F.3d 355, 359 (7th Cir. 2011).
Defendant Cinemark USA, Inc. (“Cinemark”) is in
the business of exhibiting movies.
Defendant Simply Right, Inc. (“Simply Right”) was
formed in 2000. Simply Right is a janitorial services
contractor that is “in the business of providing
[janitorial services] to the general public and other
businesses.” 3. Cinemark and Simply Right are separate
and distinct legal entities.
approximately October 2006, Simply Right began providing
janitorial services at some of Cinemark's movie theater
location where Cinemark contracted with Simply Right to
provide janitorial services was at the theater in Greeley,
Colorado (the “Greeley theater”). Simply Right
started performing janitorial services at the Greeley theater
on or around May 1, 2011, and has done so to the present.
addition to Cinemark, Simply Right provides janitorial
services to other commercial businesses and movie theater
companies. Of the approximately 800 to 1, 050 persons
employed by Simply Right, only about 400 to 500 are assigned
to clean movie theaters.
Under the Janitorial Services Agreement (“JSA”)
between Cinemark and Simply Right, Simply Right agreed to
perform cleaning services “nightly between box office
close and two hours prior to theater opening.” JSA
Addendum A, § V.a, ECF No. 124 at 32.
Simply Right hired cleaners or custodians to perform
janitorial services at Cinemark theaters, including the
the JSA, Simply Right was “solely responsible for any
supervision of its employees deemed necessary by”
Simply Right. Id., Addendum A. The JSA reserves to
Simply Right the right of direction and control over the
cleaners assigned to Cinemark's work sites, including the
right to hire, fire, supervise, discipline, and reassign the
cleaners. Id. II. § 2.7. The JSA also provides
that Simply Right “shall be solely responsible for the
salary, worker's compensation, income tax withholding,
unemployment, FICA, and all other aspects of employment
regarding [Simply Right's] employees.” Id.
II. § 2.14.
Simply Right provides a written list of “Golden Work
Rules” for its employees; a copy provided by Cinemark
reflects a signature by Plaintiff Jose Arreola Ramos on March
13, 2013. ECF No. 123-4. These “Rules” include an
arrival time, the requirement to “clock in and out each
day, ” and an order to “discuss any issues such
as time off, pay, job tasks[, ] etc. with your direct
supervisor[, ] not the theater manager.” Id.
JSA provides that Simply Right “agree[d] it will, at
all times, provide and maintain an individual at
[Cinemark's] work site (the “. . . Site
Manager”), who shall be responsible for the daily
on-site supervision of all [Simply Right] employees.”
JSA II. § 2.6.
Armida Raya (“Raya”) was employed by Simply Right
as a supervisor during some of the relevant time period. Raya
testified that her job duties included recruiting employees
for Simply Right, training cleaners, checking their work and
coaching cleaners who did not do a good job, ensuring the
cleaners kept track of their time, and serving as a contact
with whom Cinemark could communicate when the theaters were
not cleaned properly. Deposition of Armida Raya, September
27, 2016 (“Raya Dep.”), 42-48, 50-52, ECF No.
Raya also recommended to Simply Right's Vice
President/Director of Operations Beatrice Permann
(“Permann”) how much each cleaner would be paid,
once Permann provided the “budget” for that
particular theater. Id. 108: 1-24.
Raya was alerted to “problems in the cleaning” by
Cinemark managers in Fort Collins, Boulder, and Aurora.
Id. 47: 12-24. She “never had problems”
with cleaners at the Greeley theater. Id. 102: 7-15.
Between April 2013 and the present, Cinemark employed at
least fifteen different managers at the Greeley theater.
Cinemark managers never asked Raya to specifically hire or
fire any janitor who performed work at the Greeley theater.
Id. 167: 20-25, 168: 1-4.
Cinemark did not maintain personnel files, time records, pay
stubs, or government employment forms for Plaintiffs or other
Simply Right cleaners who cleaned for Simply Right at the
Raya arranged and attended with Cinemark managers the monthly
inspections of the theaters she supervised. Approximately two
to three times during Raya's employment with Simply
Right, Cinemark managers at the Greeley theater asked
cleaners to accompany Raya and the manager on inspection
“walks.” Id. 142: 19-25; 143: 7-25.
Cinemark did not track the Simply Right cleaners' arrival
and departure times, and it did not receive lists from Simply
Right identifying who the cleaners were that Simply Right
assigned to its theaters.
Based on movie schedules, Cinemark managers notified Raya of
“what time they would like for [the cleaners] to
start” work, and Raya would notify the cleaners.
Id. 110: 15-25, 111: 1-11.
Cinemark purchases the chemicals and cleaning supplies used
to clean the Greeley theater, so it can ensure the products
used in its theaters “are environmentally friendly and
… lower the risk of exposure to its customers of any
contaminants.” JSA, Addendum A.
Opt-in Plaintiffs Maribel Arreola (“Maribel”) and
Nazario Arreola (“Nazario”) (ECF No.
worked for Simply Right cleaning at the Greeley theater
between April 21, 2014 and May 13, 2015. Maribel and Nazario
claim they worked seven days a week during this roughly
13-month time period (or, approximately 388 days).
or around April 2014, Plaintiff Jose Luis Arreola
(“Jose Luis”) told his brother Nazario about the
work he was doing with Simply Right. Jose Luis explained that
Simply Right was hiring cleaners, and he set up an
appointment for Nazario and his spouse, Maribel, to meet with
Permann of Simply Right at a Fort Collins hotel about
employment. Nazario and Maribel interviewed only with
Permann; no one from Cinemark was present for the interview
this meeting, Nazario completed and signed an Employment
Application with Simply Right, and well as W-4 and I-9
employment forms. Nazario also signed a copy of Simply
Right's “Golden Work Rules” and an
acknowledgment that he received a copy of Simply Right's
Permann discussed with Maribel and Nazario the amounts Simply
Right would pay them for work at the Greeley theater 26.
Cinemark never provided Nazario or Maribel with paperwork,
written rules, or an employee handbook.
During their employment with Simply Right, Nazario and
Maribel cleaned only the Cinemark theater in Greeley. The
cleaners assigned specific areas of the theater to be cleaned
During the time he worked for Simply Right, Nazario was never
asked to do any work at the Greeley theater other than
cleaning and no Cinemark employee told him to do something or
gave him direction or instructions. Deposition of Nazario
Arreola Ramos, October 25, 2016 (“Nazario Dep.”),
115: 3-9. However, a Cinemark employee criticized him for
“not mopping correctly” and for a bathroom not
being “clean enough.” Id. 105: 5-22.
Maribel testified that Cinemark employees “check[ed]
the work that [they] had done in the morning.”
Deposition of Maribel Arreola, September 30, 2016
(“Maribel Dep.”) 19:21-25, 20: 1-2, ECF No.
123-10. “A supervisor would come and check the rooms
that we had cleaned. And if there was something they
didn't like, they would tell us to go back and finish the
cleaning.” Id. 14: 19-25, 15: 1. Also, after
Maribel had finished cleaning one night, “the young
woman manager[ ] told us that one of the rooms really smelled
because somebody had vomited in there, ” and she also
said, “there was another chemical that we could apply
to the seats to remove the smell.” Id. 30:
15-25, 31: 1-4. Moreover, on one occasion, a Cinemark manager
to whom the cleaners referred as “Easy Money”
(because he joked that their work was “easy
money”), asked Maribel to interpret for him some
instructions to two other cleaners: “he said that the
bathrooms smelled like urine, and he wanted them to use
another chemical, and he was going to show them how to use
it.” Id. 28: 7-24, ECF No. 134-5. “First
we got the chemicals, and then we went to the bathroom. And
he explained to them where he wanted to place those chemicals
in and around the bathroom and down the drain.”
Id. 29: 4-10. “That same manager . . . told us
[once] that there was too much gum on the floor that we had
to clean. And there were some seats that we needed to clean
that were not clean.” Id. 30: 2-14.
Nazario received paychecks from Simply Right, and neither
Nazario nor Maribel received payments from Cinemark for their
Nazario never discussed the pay he received from Simply
Right, or about whether Simply Right paid Maribel, with
anyone at Cinemark. Likewise, Maribel never discussed her pay
with Cinemark employees.
Knowing Cinemark's requirement that, daily, the theater
needed to be cleaned by 10:30 a.m. (Maribel Dep. 18: 17-25),
Maribel and Nazario determined whether to arrive at work at
5:00 a.m. or 5:30 a.m. based on various factors. Id.
54: 4-20. Neither Nazario nor Maribel was aware of any
Cinemark employee keeping track of their hours.
Maribel and Nazario had telephone numbers for Simply Right
supervisors Permann and Leo Parra (“Parra”).
Parra gave Maribel and Nazario the key to the Greeley theater
but also came to the theater when there was going to be an
inspection because “he wanted everything to be all
right.” 34. Maribel called Parra and Permann when one
of the vacuums did not work properly. When Nazario and
Maribel decided to quit working at Simply Right, Maribel
called and told Parra. In response, Permann called Maribel
and offered them more money to continue. Neither Maribel nor
Nazario called, emailed, or exchanged text messages with
Jose Luis and Clara Arreola (“Clara”) cleaned at
the Greeley theater from approximately April 1, 2013
(Employment Application, ECF No. 123-13 at 79; Pay Stub, ECF
No. 123-13 at 81; Deposition of Jose Luis Arreola, October
27, 2016 (“Jose Luis Dep.”) 164: 21-25, 165: 1-4)
to May 13, 2015, when they resigned. Jose Luis and Clara
allege they worked nearly every day during this period.
During their employment with Simply Right, Jose Luis and
Clara cleaned only the Cinemark theater in Greeley.
March 30, 2013, Jose Luis completed an Employment
Application, as well as W-4 and I-9 forms, for Simply Right.
Jose Luis and Clara interviewed with and were signed up to
clean by Simply Right supervisor, Armida Raya.
Jose Luis received paychecks from Simply Right, and neither
Jose Luis nor Clara received payments from Cinemark for their
Neither Clara nor Jose Luis ever discussed with anyone from
Cinemark that Clara was not being paid by Simply Right.
Jose Luis claims he or another cleaner showed a Cinemark
manager a paystub around the time they were thinking about
quitting due to problems with Simply Right.
Neither Jose Luis nor Clara received any written work rules
or employee handbook from Cinemark.
During the time they cleaned at the Greeley theater, Jose
Luis and Clara mostly decided with the other cleaners how
they would “split up” the work necessary to clean
the building. Jose Luis Dep. 55: 2-6; see also Id.
61: 2-5 (“there wasn't a lot of communication with
[the supervisor]. So, it ended up being that we had to
organize ourselves in order to figure out how to do the job
Jose Luis and Clara were initially trained on how to clean
the theater by two other Simply Right cleaners, Daniel
Hernandez and Benita Arreola.
During the period that Jose Luis and Clara cleaned the
Greeley theater, there were times when they and the other
janitors were in the building and no Cinemark employees were
Jose Luis was instructed by Simply Right to use a telephone
number to clock in for work with Simply Right. Jose Luis had
cell phone numbers for his Simply Right supervisors. He ...