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Sanchez v. Simply Right, Inc.

United States District Court, D. Colorado

May 22, 2017

AURELIO SANCHEZ, et al., Plaintiffs,
v.
SIMPLY RIGHT, INC., et al., Defendants.

          OPINION AND ORDER

          RAYMOND P. MOORE United States District Judge

         Pending before the Court is the February 27, 2017 Report and Recommendation (“R&R”) of U.S. Magistrate Judge Michael E. Hegarty (ECF No. 168), [1] recommending denying defendant Cinemark USA, Inc.'s (“Cinemark”) motion for summary judgment, and recommending denying in part and denying without prejudice in part plaintiffs'[2] motion for partial summary judgment. Both parties sought summary judgment as to whether Cinemark was plaintiffs' joint employer for purposes of the Fair Labor Standards Act (“FLSA”).

         The Magistrate Judge recommended denying plaintiffs' motion for partial summary judgment, in part, without prejudice as to Aurelio, Domingo, Hernandez, Godoy, Benita and Raya because their claims were stayed for arbitration. (ECF No. 168 at 3-4.) The Magistrate Judge next recommended reserving judgment as to whether plaintiffs were entitled to summary judgment with respect to their claims on behalf of the purported class because this case had not yet been conditionally certified as a class action. (Id. at 4.) Finally, the Magistrate Judge recommended denying Cinemark's motion for summary judgment and plaintiffs' motion for partial summary judgment as it pertained to Maribel, Nazario, Jose Luis, and Clara (collectively, “the non-stayed plaintiffs”) because there were genuine issues of fact as to whether Cinemark was the joint employer of the non-stayed plaintiffs. (Id. at 33.) In so recommending, the Magistrate Judge also forewarned the parties that they would have 14 days to file specific, written objections to the R&R. (Id. at 2 n.1.)

         Fourteen days later, Cinemark filed the only timely objections to the R&R. (ECF No. 169.) Eleven days thereafter, plaintiffs filed a response to Cinemark's objections. (ECF No. 173.)

         I. Review of a Magistrate Judge's Report and Recommendation

         A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

         “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72, Adv. Comm. Notes, subdivision (b) (1983); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”).

         II. Legal Standard for Summary Judgment

         Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Initially, the movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. If the moving party bears the burden of persuasion on a claim at trial, that party must support its motion with evidence that, if uncontroverted, would entitle it to a directed verdict at trial. Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990) (citing Celotex Corp., 477 U.S. at 331).

         A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Adams, 233 F.3d at 1246. However, a mere “scintilla of evidence” is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant “must proffer facts such that a reasonable jury could find in her favor.” Id.

         III. Matters to Which No Objection is Raised

         Neither party raises any objection to the Magistrate Judge's recommendations to deny without prejudice plaintiffs' motion for partial summary judgment as to Aurelio, Domingo, Hernandez, Godoy, Benita, and Raya, as well as with respect to the proposed class. (ECF No. 168 at 3-4, 33.) As a result, the Court ADOPTS those recommendations, and DENIES WITHOUT PREJUDICE plaintiffs' motion for partial summary judgment in those respects.

         There are also no objections to the Magistrate Judge's recommendation to deny plaintiffs' motion for partial summary judgment in all other respects. (Id. at 33.) As a result, the Court also ADOPTS that recommendation, and DENIES plaintiffs' motion for summary judgment as it pertains to the non-stayed plaintiffs.

         The only matters subject to objection are the Magistrate Judge's recommendation with respect to Cinemark's motion for summary judgment, which the Court takes up now.

         IV. Objections to the Magistrate Judge's Factual Findings

         Cinemark raises objections to both the Magistrate Judge's factual findings and legal conclusions. The Court addresses the factual disputes first.[3] As an initial matter, Cinemark raises some general objections to the Magistrate Judge's factual findings. One of these appears to be a dispute over the Magistrate Judge's word choice, as Cinemark objects to the Magistrate Judge saying that “findings of fact” were made. (See ECF No. 169 at 18.) This is an objection that the Court rejects. The R&R is clear that the Magistrate Judge was making factual findings for purposes of summary judgment; nothing more, nothing less. To the extent Cinemark believes that facts were found for all purposes, including trial, this is simply not what happened. The factual findings in the R&R are purely for summary judgment purposes (as one would expect seeing as the R&R addressed motions for summary judgment).[4]

         Next, Cinemark objects to “any findings that are not supported by the record.” (Id.) To the extent this is meant to be a standalone objection, it is grossly generalized, and the Court rejects it for that reason. Instead, the Court will only address those factual findings Cinemark specifically addresses. First among those specifically-addressed factual findings is factual finding 14. (Id.) The Court agrees with Cinemark, in part. Because the factual finding is a summary of deposition testimony, the Court finds it easier to simply recite the testimony in fuller detail. As such, factual finding 14 is changed to the following: Raya visited theaters in Fort Collins, Boulder, and Aurora more frequently because “sometimes” there were no cleaners and “sometimes” there were problems with the cleaning. (ECF No. 123-5 at 47:12-21.) Cinemark alerted Raya to problems with the cleaning in these theaters. (Id. at 47:22-24.) Raya did not have problems with, inter alia, Jose Luis and Clara, who, it appears, worked at a theater in Greeley. (Id. at 102:9-11.)[5]

         Second, Cinemark objects to part of factual finding 18. (ECF No. 169 at 18-19.) The Court agrees with Cinemark, in part. As such, the second sentence of factual finding 18 is changed as follows: Janitors did walk-through inspections of their cleaning work with Raya for theaters in Lakewood, Fort Collins, and Greeley. (ECF No. 134-6 at 141:15-18.) “Sometimes” the janitors would do the walk-throughs because they were still at the theater, and “sometimes” the theaters' manager would request for the janitors to do them. (Id. at 141:23-142:2.) A manager at the Greeley theater asked “maybe like two or three times” for janitors to do a walk-through. (Id. at 142:19-143:18.) “Daniel and Benita” were the janitors that did the walk-throughs at the Greeley theater. (Id. at 143:19-21.) Raya would tell the janitors in advance when they needed to be at the theater for a walk-through, including walk-throughs requested by a Cinemark manager. (Id. at 144:19-145:20.)[6]

         Third, Cinemark objects to factual finding 20. (ECF No. 169 at 19.) The Court agrees with Cinemark, in part. As such factual finding 20 is changed to the following: Managers from Cinemark sent Raya emails with times they would like cleaners to start work. (ECF No. 134-6 at 110:17-19.)[7]In response to a question, Raya affirmed that there were no set times for cleaners to start, but only times when cleaners could not be cleaning. (Id. at 110:21-24.) “[S]ometimes, ” Cinemark managers would tell cleaners it was not the right time to start work because movies were playing. (Id. at 111:6-11.) This happened when Cinemark managers forgot to send Raya emails telling her when cleaning could start. (Id. at 111:3-11.)

         Fourth, Cinemark objects to factual finding 32. (ECF No. 169 at 19.) The Court agrees with Cinemark, in part. As such, factual finding 32 is changed to the following: Maribel testified that the theater she worked in needed to be cleaned by 10:30 a.m., but it did not matter when she arrived to start cleaning, as long as the theater was clean by 10:30 a.m. (ECF No. 123-10 at 18:13-19:1.) “[S]ometimes” Maribel and Nazario cleaned in the mornings because they wanted to spend the rest of the day with their family or because Nazario was going to his other job. (Id. at 54:4-18.)

         Fifth, Cinemark objects to part of factual finding 48; specifically, the sentence finding that Raya told Jose Luis that certain work was not part of the contract between Cinemark and Simply Right, Inc. (“Simply Right”) and such work had to be done by Cinemark employees. (ECF No. 169 at 19.) Cinemark objects on the ground that the factual finding is based upon inadmissible hearsay- Jose Luis' testimony about what Raya told him. (Id.) The Court agrees with Cinemark. As noted, plaintiffs do not respond to this objection, but the only conceivable non-hearsay purpose the Court can imagine for the statement is for the fact that Raya said it. However, plaintiffs are not using the statement for that purpose; they are using it to establish the truth of Jose Luis being asked to do work outside the contract between Simply Right and Cinemark. (See ECF No. 148-1 at ¶ 7.) Because this would be inadmissible hearsay, the Court strikes the sentence mentioned supra from factual finding 48.

         Sixth, Cinemark objects to the findings, on pages 20 to 21 of the R&R, that (1) Clara was not allowed to start cleaning the lobby and restrooms until the public was gone, and (2) Clara was admonished by Cinemark employees for finishing her work as late as 8:30 a.m. (ECF No. 169 at 19-20.) As to the first, the Court agrees that Clara's testimony does not mention lobbies or restrooms, therefore, the Court will not consider the phrase “lobby or restrooms” when considering the R&R. However, Clara's deposition testimony does support the “characterization” that she was not allowed to start cleaning until the public was gone. Clara was asked, “did that mean that you couldn't come and get started until after those movies ended?”; to which Clara responded “[y]es.” (ECF No. 123-8 at 61:4-6.) To find that Clara was thus not allowed to start until the movies had finished is a perfectly natural reading of her testimony. As to the second objection, the Court agrees with Cinemark, in part. The Court will consider the evidence as showing Clara testifying that: “one time, ” Cinemark employees told her that they did not want her to “stay so late” as 8:30 a.m. to finish her work. (ECF No. 134-3 at 66:12-19.)[8]

         Seventh, Cinemark objects to the finding, on page 21 of the R&R, that Addendum A to a Janitorial Services Agreement (“JSA”) included a list of proposed guidelines provided by Cinemark to Simply Right describing daily and weekly cleaning services. (ECF No. 169 at 20.) Cinemark objects on the ground that this finding “misconstrues” the Addendum, which, Cinemark asserts, is a “scope of work” governing Simply Right's contractual obligations to Cinemark. (Id.) The Court disagrees. The R&R simply quotes from language contained in the Addendum in stating that it included a “list of proposed guidelines” provided by Cinemark to Simply Right, and in stating that the guidelines described both daily and weekly cleaning services. (See ECF No. 124 at 30-32.) Cinemark also asserts that the Magistrate Judge's finding in this regard is “incomplete” because it fails to account for the purportedly undisputed fact that plaintiffs' job duties were set by their Simply Right job description and “Golden Work Rules.” (ECF No. 169 at 20.) To the extent Cinemark is asserting that plaintiffs' job duties were set exclusively by the job description and “Golden Work Rules, ” the Court disagrees that the cited evidence supports such an assertion.[9] (See id. (citing ECF No. 123-4 at 31-33; ECF No. 164-1 at ¶¶ 12, 71)).

         A final matter for discussion at this juncture is certain arguments made in plaintiffs' response. Notably, plaintiffs assert that the Magistrate Judge considered only a “sampling” of plaintiffs' undisputed material facts in finding that Cinemark was not entitled to summary judgment. (ECF No. 173 at 3.) Thereafter, plaintiffs proceed to reference numerous facts that the Magistrate Judge purportedly did not consider, and which plaintiffs assert this Court should consider. (See id. at 4-7, 9-13.) This is improper. If plaintiffs wanted this Court to consider facts that the Magistrate Judge purportedly did not consider, then plaintiffs should have filed objections to the R&R, and gone through the same process that the Court just went through with Cinemark's objections to the Magistrate Judge's factual findings. Instead, plaintiffs assert that the Magistrate Judge “got it right.” (See id. at 8); see also Sedillo v. Hatch, 291 F. App'x 883, 885-886 (10th Cir. 2008) (unpublished) (rejecting a party's argument that his response to objections constituted an objection to the report and recommendation). At no point do plaintiffs assert that they are objecting to the Magistrate Judge's factual findings, and, even if they did, any such objection in their response would be untimely, as the response was filed 25 days after entry of the R&R.

         As a result, the Court will only consider those facts that the Magistrate Judge relied upon in reaching its decision, as amended by the changes the Court made supra.

         V. Objections to the Magistrate Judge's Legal Conclusions

         A. Considering Plaintiffs' Claims Individually

         Cinemark's first objection is that the Magistrate Judge purportedly assessed plaintiffs' claims collectively, when the Magistrate Judge should have assessed the claims individually for each non-stayed plaintiff. (ECF No. 169 at 5-7.) Plaintiffs respond that, in its motion for summary judgment, Cinemark did not ask the Magistrate Judge to analyze the evidence as to each plaintiff individually, but, instead, moved for summary judgment against plaintiffs as a group. (ECF No. 173 at 8-9.) Plaintiffs next assert that assessing their claims separately would be “particularly misplaced” in the context of the joint employment inquiry because that inquiry focuses upon the totality of the circumstances for a given set of employees. (Id. at 9.) Plaintiffs also assert that the ...


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