United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge
before the Court is the February 27, 2017 Report and
Recommendation (“R&R”) of U.S. Magistrate
Judge Michael E. Hegarty (ECF No. 168),  recommending
denying defendant Cinemark USA, Inc.'s
(“Cinemark”) motion for summary judgment, and
recommending denying in part and denying without prejudice in
part plaintiffs' 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”).
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.)
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.)
Review of a Magistrate Judge's Report and
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
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.”).
Legal Standard for Summary Judgment
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).
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
Matters to Which No Objection is Raised
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.
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.
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.
Objections to the Magistrate Judge's Factual
raises objections to both the Magistrate Judge's factual
findings and legal conclusions. The Court addresses the
factual disputes first. 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).
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
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.
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.)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.)
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
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.
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.)
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. (See id.
(citing ECF No. 123-4 at 31-33; ECF No. 164-1 at ¶¶
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.
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.
Objections to the Magistrate Judge's Legal
Considering Plaintiffs' Claims Individually
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 ...