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Sanchez v. Simply Right, Inc.

United States District Court, D. Colorado

April 13, 2017

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,
v.
SIMPLY RIGHT, INC., CINEMARK USA, INC., DANIEL KILGORE, and BEATRICE PERMANN, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         Before 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.[1]

         BACKGROUND

         I. Procedural History

         Plaintiffs (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 pay.[2] 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.

         In the operative First Amended Collective Action Complaint, Plaintiffs allege in pertinent part:

         Defendant 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 products.

         Defendants 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.

         Defendants 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.

         The 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.

         ANALYSIS

         Before 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.

         I. Strike Exhibits

         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.

         Plaintiffs 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.

         Although provided an opportunity to do so, the Defendants did not file a reply brief.

         The 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.

         To the 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.

         Notably, 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 ...


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