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 Plaintiffs' Motion for Conditional
Collective Action Certification [filed November 9, 2016;
ECF No. 121] and Defendants' Motion to Strike or
Disregard Evidence in Support of Plaintiffs' Motion for
Conditional Certification [filed January 20, 2017; ECF
No. 149]. 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 granted in part and denied in part
and that Defendants' 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-Jose Luis Arreola and Clara Arreola, and
opt-in Plaintiffs, Nazario Arreola and Maribel Arreola- have
proceeded through discovery.
operative First Amended Collective Action Complaint,
Plaintiffs allege in pertinent part:
Simply Right, Inc. is a national janitorial company operating
in more than 30 states, and Defendant Cinemark USA, Inc. is
the third largest movie theater company in the United States,
operating 335 theaters in 41 states. Plaintiffs and those
similarly situated are employed by Defendants to clean movie
theaters. Defendants' cleaners spend each night cleaning
the lobbies, bathrooms, kitchens, and auditoriums of each
theater, including picking up garbage, wiping surfaces,
cleaning seats, sweeping, vacuuming, mopping, scrubbing
toilets and walls, dusting, and replacing soap and paper
pay their employees across the nation below the minimum wage
for this work. For example, Defendants paid the named
Plaintiffs between $3.57 and $5.55 per hour, and no overtime,
for their work. That is, Plaintiffs Lazario and Maribel
Arreola each averaged 21 hours of work each week and were
paid a total of $300 (together, not each) every two weeks,
which calculates as $3.57 per hour for their work. Similarly,
Plaintiffs Aurelio and Domingo Sanchez and Miguel Angel Godoy
worked together and averaged 138.75 total hours of work each
week cleaning theaters for Defendants. Defendants paid these
Plaintiffs $1, 541 every two weeks with no overtime premiums,
which calculates to $5.55 per hour.
subject all their employees across the nation to this policy
of refusing to pay minimum and overtime wages. Plaintiffs and
other employees handle cleaning materials such as soap,
brooms, vacuums, mops and other materials which moved in
interstate commerce each year relevant to this action.
Defendants enjoyed more than $500, 000.00 in gross receipts
each year relevant to this action.
work performed by Plaintiffs and the putative Members of the
Class was not specialty work requiring any sort of labor
certification, but was menial janitorial labor. Plaintiffs
and the putative Members of the Class did not clean other
theaters, but worked exclusively for Cinemark. Plaintiffs and
the putative Members of the Class were not in business for
themselves, they did not run their own businesses, own their
equipment, or seek contracts with other theaters. Rather,
they were dependent on Cinemark for their employment.
See First Am. Collective Action Compl. (“Am.
Compl.”), ECF No. 23.
commencing an analysis of the Plaintiffs' motion seeking
conditional certification, the Court must first determine
whether certain exhibits submitted by Plaintiffs in support
of their motion need be stricken as argued by the Defendants.
ask the Court to “strike in its entirety the
declarations of Maria de Jesus Morales-Lopez, Adrian Reyes,
Eriberto Aleman de los Santos, Alfonso Solis, Pedro German
Hernandez, Maria de la Luz Lopez, Domingo Sanchez, and Daniel
Hernandez because the Spanish to English translations have
not been properly authenticated.” These declarations
are found at ECF Nos. 121-2, 121-3, 121-4, 121-5, 121-7,
121-8, 121-11, and 121-12, respectively. Alternatively and
additionally, Defendants argue Mr. Aleman de los Santos'
declaration should be stricken because Defendants were unable
to depose him despite best efforts; Mr. Aleman de los
Santos' and Mr. Solis' declarations contain
translation errors; and ten of the declarations contain
testimony that lacks foundation and is conclusory.
respond identifying their counsel, Brandt Milstein, as fluent
in Spanish and as having extensive experience and immersion
in the Hispanic culture, having lived, studied, and worked in
Mexico and Central America. Declaration of Brandt Milstein
(“Milstein Decl.”) ¶¶ 3-5, ECF No.
165-1. Mr. Milstein certified that the translations are true
and complete. Id. ¶ 7. Further, Plaintiffs
argue any translation “errors” are immaterial to
the issue of whether conditional certification should be
granted. Finally, Plaintiffs contend the declarants'
testimony is not inadmissible simply because they refer to
their employers as “they” and reference
“overtime” wages in the testimony.
provided an opportunity to do so, the Defendants did not file
a reply brief.
Court has reviewed the challenged declarations as translated
by Mr. Milstein (ECF Nos. 121-2, etc.) and the Declaration of
Jeannette Garofalo (“Garofalo Decl.”),
Defendants' translator (ECF No. 149-4), and finds that
any discrepancies between the translations are minimal and
insufficient to form a basis for striking the challenged
affidavits. For instance, the fact that the English language
translations of Exhibits 4 and 5 do not include statements
declaring the information is true “under penalty of
perjury” is insignificant so long as the Spanish
declarations, which were actually signed by the declarants,
contain such statement. Garofalo Decl. ¶ 4, ECF No.
149-4). Moreover, whether a Spanish word is translated as
“busy” or “dirty, ” the declarant
still testifies that a supervisor asked him to bring five
members of his family to help clean the theater. Id.
¶ 6. Finally, the English translation of, “They
never paid my wages, they only paid me” is implied in
the declarant's testimony, “For a time during our
employment, they only paid me $500 every two weeks.”
Id. ¶ 5; see also Declaration of
Eriberto Aleman de los Santos, ECF No. 121-4.
extent any declaration submitted on behalf of either position
contains testimony that is “lacking in foundation or
improperly states a legal conclusion, ” the Court will
(as with any such declaration) disregard the testimony.
See Mot. at 1-2.
the Plaintiffs do not respond to Defendants' contention
that Mr. Aleman de los Santos' declaration should be
stricken due to Defendants' inability to depose him.
Defendants cite primarily unpublished cases outside of this
Circuit in support of their contention. Mot. 4-5. This is not
a situation where Defendants have simply neglected to take
the declarants' depositions. SeeEnos-Martinez v. Bd. of Cnty. Comm'rs of the Cnty. of
Mesa, No. 10-cv-00033-WJM, 2012 WL 1079442, at *3 (D.
Colo. Mar. 30, 2012). Nor has Mr. Aleman de los Santos failed
to appear for a ...