Sanchez et al v. Simply Right, Inc. et al

Filing 168

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that Defendant Cinemark USA, Inc.'s Motion for Summary Judgment 123 be denied, and Plaintiffs' Motion for Partial Summary Judgment as to Cinemark USA, Inc.'s Status as a Joint Employer 134 be denied without prejudice as to the relief sought by the stayed Plaintiffs and the class and, otherwise, denied, by Magistrate Judge Michael E. Hegarty on 2/27/17. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00974-RM-MEH
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 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.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.3 The claims of the
1

Be advised that all parties shall have fourteen (14) days after service hereof to serve and
file any written objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served with a copy may bar the
aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991)).
2

Plaintiffs’ claims for overtime pay are asserted only against Simply Right and the
individual Defendants. Am. Compl. ¶45. Cinemark is exempt from the obligation to pay
overtime to its employees. See 29 U.S.C. § 213(b)(27).
3

The Court was informed by counsel for the parties that these claims have settled;
however, the Plaintiffs currently remain identified in this case and no action has been taken to
dismiss these Plaintiffs. Therefore, the Court will proceed in this case according to the status as
determined by the case docket—i.e., the Court has approved the parties’ stipulation to stay the
2

remaining Plaintiffs have proceeded through discovery.
The 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.
However, 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

case pending arbitration of the claims of the stayed Plaintiffs. ECF Nos. 40, 42.
3

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.
Moreover, 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.
II.

Findings of Fact
Cross-motions 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.4 See Edwards v. Briggs
& Stratton Ret. Plan, 639 F.3d 355, 359 (7th Cir. 2011).
1.

Defendant Cinemark USA, Inc. (“Cinemark”) is in the business of exhibiting movies.

2.

Defendant Simply Right, Inc. (“Simply Right”) was formed in 2000. Simply Right is a

4

Unless otherwise cited, these facts are undisputed.
4

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.

4.

In approximately October 2006, Simply Right began providing janitorial services at some

of Cinemark’s movie theater locations.
5.

One 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.
6.

In 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.
7.

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.
8.

Simply Right hired cleaners or custodians to perform janitorial services at Cinemark theaters,

including the Greeley theater.
9.

Per 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]

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employees.” Id. II. § 2.14.
10.

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.
11.

The 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.
12.

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. 123-5.
13.

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.
14.

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.
15.

Between April 2013 and the present, Cinemark employed at least fifteen different managers

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at the Greeley theater.
16.

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.
17.

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
Greeley theater.
18.

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.
19.

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.
20.

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.
21.

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.
22.

Opt-in Plaintiffs Maribel Arreola (“Maribel”) and Nazario Arreola (“Nazario”) (ECF No.

7)5 worked for Simply Right cleaning at the Greeley theater between April 21, 2014 and May 13,

5

The Court will follow the parties’ practice of referring to certain Plaintiffs by their first
names because they share the same last name.
7

2015. Maribel and Nazario claim they worked seven days a week during this roughly 13-month time
period (or, approximately 388 days).
23.

In 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 meeting.
24.

At 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 Employee
Handbook.
25.

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.
27.

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
among themselves.
28.

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

8

for a bathroom not being “clean enough.” Id. 105: 5-22.
29.

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.
30.

Nazario received paychecks from Simply Right, and neither Nazario nor Maribel received

payments from Cinemark for their work.
31.

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.

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32.

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.
33.

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 Cinemark managers.
35.

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.
36.

During their employment with Simply Right, Jose Luis and Clara cleaned only the Cinemark

theater in Greeley.
37.

On 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.
38.

Jose Luis received paychecks from Simply Right, and neither Jose Luis nor Clara received

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payments from Cinemark for their work.
39.

Neither Clara nor Jose Luis ever discussed with anyone from Cinemark that Clara was not

being paid by Simply Right.
40.

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.
41.

Neither Jose Luis nor Clara received any written work rules or employee handbook from

Cinemark.
42.

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 faster.”).
43.

Jose Luis and Clara were initially trained on how to clean the theater by two other Simply

Right cleaners, Daniel Hernandez and Benita Arreola.
44.

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 there.
45.

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 did not
have telephone numbers for any Cinemark manager.
46.

When Jose Luis and Clara wanted to take time off, they contacted their Simply Right

supervisor.
47.

Neither Jose Luis nor Clara were ever asked by Cinemark managers to sell movie tickets for

Cinemark, hang movie posters, sell food or drink at the concession stand, or stock candy or food.

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48.

Jose Luis testified that Cinemark managers “would identify problem areas that needed more

attention . . . the supervisor would ask who is cleaning this area in order to talk to that person to tell
the person that they need to put more care in a certain area.” Jose Luis Dep. 61: 5-11. “[T]he
supervisor, last name Hidalgo . . . told me the changes that need to be done, for instance, if I needed
to move some arcade games, the video games. He will tell me where to move it or he would tell me
what chemicals I could use in order not to ruin the machine.” Id. 61: 14-19. He stated that if
Cinemark managers “had inspections they would tell us what areas to concentrate on or what to
clean.” Id. 63: 2-4. Also, Hidalgo asked him to clean “the area where they have the cups and the
area where they have like the window displays . . ., but [Armida Raya] had told me that that [sic]
was not part of the contracts and that that [sic] had to be done by Cinemark employees.” Id. 67: 525, 68: 1-7. “I kept on cleaning that area because the supervisor insisted . . . [s]omething else that
I did that he told me that I had to do was move the popcorn machines.” Id. 68: 8-16. Jose Luis
asserted he would call Simply Right supervisors “on rare occasions because the people that I had
more contact with were the cinema – the movie theater managers.” Id. 84: 24-25, 85: 1-6. He
explained that the Simply Right supervisors “were always busy cleaning other theaters.” Id. 84: 814. Jose Luis also said that Hidalgo directed that they finish cleaning the theater by 8:00 a.m. and
“there were other occasions where he told me I had to stay because he had to check the auditoriums
and they were not right.” Id. 133: 17-23; 136: 21-25, 137: 1-4.
49.

Clara testified that she saw Simply Right supervisor Raya maybe once a week when Raya

might get a complaint from Hidalgo, and Simply Right supervisor Parra never answered her calls.
Deposition of Clara Arreola, October 27, 2016 (“Clara Dep.”) 51: 6-22; 53: 2-22. “The one who
was almost [sic] there was Mr. Hidalgo and he was more likely to solve our problems.” Id. 53: 23-

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25, 54: 1-3. “Hidalgo complained about the pink chemical that could be seen in the toilets in the
bathroom, so on some occasions Hidalgo told my husband when we were on our way out and he
showed him the bathrooms and said, look, you can see this pink ring and you shouldn’t be doing that
so you need to come to clean better.” Id. 51: 11-17. Clara also testified that Hidalgo instructed her
to “dust the high area in the bathrooms”, “make sure that we cleaned the [ice melting] salt very well,
that there was no salt in the corners,” “make sure that I get rid of . . . lint stuck in the corners” of the
bathrooms, and “clean[ ] the trash cans all the way to the bottom.” Id. 80: 14-23; 81: 14-19; 82: 314. She also described an instance where Raya called her during non-work hours and instructed her
to go to the theater to replace toilet paper; when she arrived, “Elizabeth, who was another of the
managers . . . said, oh, please put the toilet paper and I said are you going to pay me for this time
because this is not my work time, and she said please change the toilet paper and when I asked that
question she sort of laughed and didn’t answer.” Id. 52: 13-19. Also, “when the Cinemark
employees were done in the kitchen, they would tell me you can come in now.” Id. 64: 17-19.
When attempting to give an estimate of how much time it took to clean the theater each day, Clara
testified that it was difficult to give because, as time went on, Cinemark managers “added more
[cleaning] tasks and more tasks and more tasks were added.” Id. 69: 12-25, 70, 71: 1-3.
LEGAL STANDARDS
A motion for summary judgment serves the purpose of testing whether a trial is required.
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant
summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits
show there is no genuine issue of material fact, and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit

13

under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis
for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry
its initial burden either by producing affirmative evidence negating an essential element of the
nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence
to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976,
979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for
summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
1985).
The non-moving party has the burden of showing there are issues of material fact to be
determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for
summary judgment, the opposing party may not rest on the allegations contained in his complaint,
but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e);
Scott v. Harris, 550 U.S. 372, 380 (2007) (“[t]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation
omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir.
2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in
Rule 56(c), except the mere pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006,
1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment
evidence must be generally admissible and . . . if that evidence is presented in the form of an
affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the

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evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114,
1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most
favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431
F.3d 1241, 1255 (10th Cir. 2005).
ANALYSIS
Under the FLSA, an “employer” is defined as “any person acting directly or indirectly in the
interest of an employer in relation to an employee . . . .” 29 U.S.C. § 203(d). An “employee” is
defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The FLSA “defines
the verb ‘employ’ expansively to mean, ‘suffer or permit to work.’” Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326 (1992) (quoting 29 U.S.C. § 203(g)). “The ‘striking breadth’ of these
definitions ‘stretches the meaning of “employee” to cover some parties who might not qualify as
such under a strict application of traditional agency principles.’” Johnson v. Unified Gov’t of
Wyandotte Cnty., Kan., 371 F.3d 723, 729 (10th Cir. 2004) (quoting Darden, 503 U.S. at 326).
Any “employer” of an “employee” is “responsible, both individually and jointly, for
compliance with all of the applicable provisions of the” FLSA. See 29 C.F.R. § 791.2(a). In
determining whether an entity is “jointly responsible” with the employer under the FLSA, courts
analyze whether the claimants constitute “employees” of the entity. See Harbert v. Healthcare
Servs. Grp., Inc., 173 F. Supp. 2d 1101, 1105 (D. Colo. 2001) (citing Boire v. Greyhound Corp., 376
U.S. 473, 481 (1964) (finding status of employer as independent contractor is immaterial because
focus of joint employment inquiry is on employees, not employers) (emphasis in original). The

15

Department of Labor’s (“DOL”) regulation6 outlining when multiple parties may be jointly liable
under the FLSA provides:
(b) Where the employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during the
workweek, a joint employment relationship generally will be considered to exist in
situations such as:
(1) Where there is an arrangement between the employers to share the employee’s
services, as, for example, to interchange employees; or
(2) Where one employer is acting directly or indirectly in the interest of the other
employer (or employers) in relation to the employee; or
(3) Where the employers are not completely disassociated with respect to the
employment of a particular employee and may be deemed to share control of the
employee, directly or indirectly, by reason of the fact that one employer controls, is
controlled by, or is under common control with the other employer.
29 U.S.C. § 791.2. It is undisputed here that Cinemark and Simply Right have no “arrangement”
to share the Plaintiffs’ cleaning services, and the parties raise no argument that the entities are acting
in each other’s interest in relation to the Plaintiffs; accordingly, the Court will focus its analysis on
the level of control Cinemark has (if any) over the Plaintiffs’ employment pursuant to § 791.2(b)(3).
The Tenth Circuit has not addressed directly the standard(s) by which a district court must
analyze “joint employment” under the FLSA. But, in analyzing whether a plaintiff was an employee
protected by the FLSA or simply an independent contractor, the court instructed:
Thus, in determining whether an individual is covered by the FLSA, “our inquiry is
not limited by any contractual terminology or by traditional common law concepts
of ‘employee’ or ‘independent contractor.’” Henderson v. Inter–Chem Coal Co.,

6

“Since Congress has not directly addressed the issue of when a joint-employer
relationship exists, and since the regulations enacted by the DOL are based on a permissible
reading of the FLSA, this Court grants deference to the DOL’s regulations.” Harris v. Universal
Contracting, LLC, 2014 WL 2639363, at *5 (D. Utah Jun. 12, 2014) (citing Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).
16

Inc., 41 F.3d 567, 570 (10th Cir. 1994) (citing Dole v. Snell, 875 F.2d 802, 804 (10th
Cir. 1989)). Instead, the economic realities of the relationship govern, and “the focal
point is ‘whether the individual is economically dependent on the business to which
he renders service ... or is, as a matter of economic fact, in business for himself.’” Id.
The economic reality test includes inquiries into whether the alleged employer has
the power to hire and fire employees, supervises and controls employee work
schedules or conditions of employment, determines the rate and method of payment,
and maintains employment records. Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir.
1990).
In applying the economic reality test, courts generally look at (1) the degree of
control exerted by the alleged employer over the worker; (2) the worker’s
opportunity for profit or loss; (3) the worker’s investment in the business; (4) the
permanence of the working relationship; (5) the degree of skill required to perform
the work; and (6) the extent to which the work is an integral part of the alleged
employer’s business. Henderson, 41 F.3d at 570. In deciding whether an individual
is an employee or an independent contractor under the FLSA, a district court acting
as the trier of fact must first make findings of historical facts surrounding the
individual’s work. Second, drawing inferences from the findings of historical facts,
the court must make factual findings with respect to the six factors set out above.
Finally, employing the findings with respect to the six factors, the court must decide,
as a matter of law, whether the individual is an “employee” under the FLSA. Id. at
571. None of the factors alone is dispositive; instead, the court must employ a
totality-of-the-circumstances approach. Id. at 570.
Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440–41 (10th Cir. 1998). Baker’s analysis has
been utilized by some district courts in this circuit when determining whether a joint employer
relationship exists. Matrai v. DirecTV, LLC, 168 F. Supp. 3d 1347, 1353 (D. Kan. 2016); see also
Beltran v. InterExchange, Inc., 176 F. Supp. 3d 1066, 1079 (D. Colo. 2016). While the Tenth
Circuit had occasion in Johnson, supra, to address how the “joint employer” issue should be
analyzed, the court determined not to, instead limiting its analysis to whether the plaintiffs in that
case were independent contractors, as opposed to employees, using the Baker factors. 371 F.3d at
728.7 In so doing, the Tenth Circuit essentially distinguished between an employee/independent

7

The court described the issues in Johnson as whether the plaintiffs presented sufficient
evidence to the jury “that they were employees of the Housing Authority, as opposed to
17

contractor analysis and a joint employer analysis. See id.
At least one district court in this circuit has recognized (indirectly) such distinction when
noting that “[b]ecause the inquiry in this case is one of joint employer status rather than employee
status, the factors applied in those cases [including Baker and Johnson] are not directly applicable.”
Zachary v. Rescare Okla., Inc., 471 F. Supp. 2d 1175, 1179 (N.D. Okla. 2006) (citing Zheng v.
Liberty Apparel Co., Inc., 355 F.3d 61, 67–68 (2d Cir. 2003)) (noting that factors such as those
considered in Henderson and Johnson, including the workers’ investment in the business and the
degree of skill and independent initiative required of workers, are used primarily to distinguish
independent contractors from employees and therefore “do not bear directly on whether workers
who are already employed by a primary employer are also employed by a second employer”). In
Zachary, the court listed four factors “most commonly applied” in this context—whether the alleged
employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee
work schedules or conditions of employment, (3) determined the rate and method of payment, or (4)
maintained employment records (id. (citing Bonnette v. Cal. Health & Welfare Agency, 704 F.2d
1465, 1470 (9th Cir. 1983))—but concluded that “[r]egardless of the specific factors used, the
concept of joint employment should be ‘defined expansively,’ and the Court must always consider
the ‘economic realities’ of the employment relationship in light of all circumstances presented.” Id.
(citation omitted).

independent contractors; that the Housing Authority and the Unified Government should be
regarded as joint employers; and that they had worked more than [the statutory] hours in any
week for which they sought recovery.” Johnson, 371 F.3d at 727–28 (emphasis added). The
court found, “Because we conclude that sufficient evidence supported the jury findings that the
plaintiffs were not employees of the Housing Authority, but were instead functioning as
independent contractors when they patrolled as security guards, we will not decide the other
issues mentioned above.” Id. at 728.
18

With these legal principles in mind, the Court agrees that certain of the Baker factors are not,
or may not be, applicable here and will proceed to consider any factors that reasonably apply to the
circumstances presented while employing a totality-of-the-circumstances approach. Baker, 137 F.3d
at 1440–41.
I.

Bonnette Factors
The Court concludes that Plaintiffs have failed to demonstrate genuine issues of material fact

as to whether Cinemark had the power to hire and fire the Plaintiffs, determined the rate and method
of payment to the Plaintiffs, and maintained Plaintiffs’ employment records. The evidence is
uncontroverted that Cinemark engaged in none of these practices with respect to the Plaintiffs.
Although Plaintiffs attempt to argue that the JSA “sets the terms of payment” to the cleaners, the
Court finds the JSA actually provides: 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.” JSA II. § 2.14. There is nothing in the JSA
that can be construed as giving Cinemark the power to control or determine (as opposed to “affect”)
the Plaintiffs’ pay. See Jean-Louis v. Metro. Cable Comm’cns, Inc., 838 F. Supp. 2d 111, 129–30
(S.D. N.Y. 2011) (“the test is whether a putative joint employer determines pay rates, not whether
it affects them.”). Thus, the Court recommends that Judge Moore find these factors weigh against
a finding of “joint employment.”
The only Bonnette factor remaining is whether Cinemark “supervised and controlled
employee work schedules or conditions of employment,” which the Court equates with the first
Baker factor concerning the nature and degree of control over the claimants.

19

II.

Cinemark’s Nature and Degree of Control Over Plaintiffs
One court in this district analyzed a joint employer relationship focusing on whether the

purported employer “possessed sufficient indicia of control” by considering “the nature and structure
of the employment relationship . . . to determine whether the economic realities justify a finding of
joint employment.” Harbert, 173 F. Supp. 2d at 1106. In so doing, the court looked at whether the
alleged employer not only paid the claimant’s salary and benefits, but also whether it determined
the work schedule, work responsibilities, and work conditions of the claimant. Id. The Court will
consider each of these latter factors to determine Cinemark’s nature and degree of control, if any,
over the Plaintiffs.
A.

Work Schedule

The JSA provides that Simply Right agreed with Cinemark to perform cleaning services
“nightly between box office close and two hours prior to theater opening.” JSA Addendum A, §
V.a. In addition, Simply Right’s “Golden Work Rules” direct its cleaners to “[a]rrive at the theater
between 1:00 and 2:00 a.m.” ECF No. 123-4 at 29.
However, Simply Right Supervisor Armida Raya testified that, based on movie schedules,
Cinemark managers notified her of “what time they would like for [the cleaners] to start” work, and
Raya would then notify the cleaners. Raya Dep. 110: 15-25, 111: 1-11. In addition, 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. Clara also testified that she was not allowed to start cleaning
the lobby or restrooms until the public was gone or to start cleaning the auditoriums until the movies
were finished, so her start time depended on when the first movie of the final showings for the day

20

ended. Clara Dep. 61: 7-25, 62: 1-3. She also testified that she was admonished by Cinemark
employees for finishing her work as late as 8:30 a.m. Id. 66: 8-19. Finally, Jose Luis testified that
Hidalgo directed they finish cleaning the theater by 8:00 a.m. each day, and “there were other
occasions where he told me I had to stay because he had to check the auditoriums and they were not
right.” Jose Luis Dep. 133: 17-23; 136: 21-25, 137: 1-4.
The Court finds these facts are material in determining whether Cinemark controlled, or
shared with Simply Right the control of, the Plaintiffs’ work schedules. Jacob Hidalgo, Cinemark’s
Senior Assistant Manager of the Greeley theater during the relevant time, testified that he “did not
instruct any Simply Right cleaner when to clean particular areas of the theatre or when the cleaners
needed to start work or stop work.” Declaration of Jacob Hidalgo, January 19, 2017 (“Hidalgo
Decl.”) ¶ 8, ECF No. 151-14. Accordingly, the Court concludes material disputed facts exist as to
whether Cinemark exercised some degree of control over the Plaintiffs’ work schedules.
B.

Work Responsibilities

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. But, Addendum A to the JSA includes a “list of proposed
guidelines” provided by Cinemark to Simply Right describing both daily and weekly cleaning
services needed for different areas of a theater. ECF No. 124 at 30–32. The list includes, for
example:
II. Daily Service:
a. Auditoriums/Game Rooms/Lobby/Common Hallways/All Public Areas
1. Pick up trash compact it or place in the dumpster/container outside.
2. Remove dust, debris and spills from auditorium seats and floors, including
21

removable stains and gum. Sweep, vacuum and mop auditoriums daily.
Blowers are strictly prohibited in the building.
3. Empty trash receptacles and replace liners in and wipe down receptacles
as needed.
4. Sweep and mop tile, concrete flooring and elevator floors.
5. Vacuum carpeted areas and throw mats.
6. Spot vacuum carpeted walls.
7. Remove gum from carpets, mats and floors.
8. Clean, polish, and sanitize drinking fountains
9. Clean ALL doors interior and exterior including hardware.
10. Organize and clean all janitorial supply closets.
****
b. Customer Restrooms (All restroom supplies will be furnished by the theatre):
l. Sweep floor
2. Clean and disinfect commodes, urinals, lavatories, faucets, sinks, fixtures,
pipes and all tile.
3. Clean mirrors
4. Remove finger marks and smudges from doors. Clean any graffiti from
stalls and walls
5. Mop and disinfect floor (with particular attention around and behind
commodes).
****
e. Food and Beverage Areas:
1. Clean poppers as applicable.
2. Remove mats and place in designated place.
3. Sweep and mop floor.
4. Clean scullery floor and sinks as applicable.
5. Mop floor in Dining Area only .... Move tables (if movable) and trash
receptacles to mop under and around.
6. Clean all tables and chairs in restaurant and cafe areas
III.

Weekly:

a. Auditoriums/Lobby/Common Hallways:
1. Vacuum carpeted walls.
2. Clean and sanitize auditorium entry doors.
3. Wash and sanitize interior of garbage cans.
22

4. Dust lights and vents under 10 feet.
5. Dust and clean all benches[.]
Id. Supervisor Raya testified that approximately two to three times during her 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.
Jose Luis testified that Cinemark managers “would identify problem areas that needed more
attention,” and “ask who is cleaning this area in order to talk to that person to tell the person that
they need to put more care in a certain area.” Jose Luis Dep. 61: 5-11. Also, Hidalgo instructed
Jose Luis to move some video games, where to move them, and what chemicals to use to avoid
ruining the machine. Id. 61: 14-19. Jose Luis stated that if Cinemark managers “had inspections
they would tell us what areas to concentrate on or what to clean.” Id. 63: 2-4. Also, Hidalgo asked
Jose Luis to clean “the area where they have the cups and the area where they have like the window
displays” although Raya had told him that such cleaning was not part of the contract. Id. 67: 5-25,
68: 1-7. Nevertheless, Jose Luis“kept on cleaning that area because the supervisor insisted . . .
[s]omething else that I did that he told me that I had to do was move the popcorn machines.” Id. 68:
8-16. Moreover, once when Jose Luis was at the movie theater with his family to see a movie,
Hidalgo approached him and told him that “from now on before you leave when you finish your job
start folding the carpets . . . that are in the lobby.” Id. 149: 18-25, 150, 151: 1-21.
In addition, Clara testified that she rarely saw or communicated with Simply Right
supervisors, but “[t]he one who was almost [sic] there was Mr. Hidalgo and he was more likely to
solve our problems.” Clara Dep. 53: 23-25, 54: 1-3. “Hidalgo complained about the pink chemical
that could be seen in the toilets in the bathroom, so on some occasions Hidalgo told my husband
when we were on our way out and he showed him the bathrooms and said, look, you can see this
23

pink ring and you shouldn't be doing that so you need to come to clean better.” Id. 51: 11-17. Clara
also testified that Hidalgo instructed her to “dust the high area in the bathrooms,” “make sure that
we cleaned the [ice melting] salt very well, that there was no salt in the corners,” “make sure that
I get rid of . . . lint stuck in the corners” of the bathrooms, and “clean[ ] the trash cans all the way
to the bottom.” Id. 80: 14-23; 81: 14-19; 82: 3-14.
Finally, Maribel testified that Cinemark employees “check[ed] the work that [they] had done
in the morning.” Maribel Dep. 19:21-25, 20: 1-2. “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, a
young female manager told the cleaners that one of the rooms smelled of vomit and instructed them
to use another chemical to remove the smell. Id. 30: 15-25, 31: 1-4. Moreover, on one occasion,
a Cinemark manager 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.
The Court finds these facts are material in determining whether Cinemark had control, or
shared control with Simply Right, over the Plaintiffs’ duties and responsibilities. Mr. Hidalgo
testified that he
did not direct janitors to clean areas they had missed, correct areas that were not well
cleaned, or perform additional cleaning tasks. I did not instruct janitors what areas
24

to clean or show them how they were to perform their job. I did not communicate
with any janitor to say I thought they were no doing a job task correctly or say they
should put more effort into a given task or do a better job of cleaning. I understood
from Cinemark that I was to address all issues concerning the cleanliness of the
theatre to Simply Right through a Simply Right manager or supervisor, and I did so.
Hidalgo Decl. ¶¶ 5, 6. Jason Buice and Sean Stengl, who served as General Managers at the Greeley
theater during the relevant time period, proffered essentially the same testimony. See Declaration
of Jason Buice, January 18, 2017 (“Buice Decl.”) ¶¶ 4, 6, ECF No. 151-12; Declaration of Sean
Stengl, November 10, 2016 (“Stengl Decl.”) ¶ 8, ECF No. 151-11. Consequently, the Court
concludes disputed facts exist as to whether Cinemark exercised some degree of control over the
Plaintiffs’ work responsibilities.
C.

Work Conditions

It is undisputed that all Plaintiffs testified they, as employees of Simply Right, worked at no
business other than the Greeley Cinemark theater. Under the JSA, Cinemark is responsible for
purchasing the chemicals and cleaning supplies used to clean the Greeley theater, and it does so to
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. Also, “[Simply Right] is
responsible for distributing such cleaning supplies, as deemed necessary by [Cinemark] with its
janitors. [Cinemark] will not provide cleaning supplies directly to [Simply Right]’s staff, but may
have a designated area where [Cinemark] will provide these supplies for [Simply Right].” Id.
Simply Right’s “Golden Work Rules” instruct its cleaners to “[n]otify your supervisor immediately
when you need supplies, cleaning chemicals, or the equipment breaks.” ECF No. 123-4.
Maribel testified that Leo Parra told her, “if we needed chemicals or anything like that, we
should ask the movie people.” Maribel Dep. 26: 23-25, 27: 1-5. Also, on one occasion, a Cinemark

25

manager 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. “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. Maribel also testified that she called her Simply Right
supervisor directly when one of the vacuums did not work properly.
Jose Luis testified that a Cinemark manager “would tell me what chemicals I could use in
order not to ruin the [video] machine.” Jose Luis Dep. 61: 14-19. He also stated he would call
Simply Right supervisors “on rare occasions because the people that I had more contact with were
the cinema – the movie theater managers.” Id. 84: 24-25, 85: 1-6. He explained that the Simply
Right supervisors “were always busy cleaning other theaters.” Id. 84: 8-14. Likewise, Clara
testified that she saw Simply Right supervisor Raya maybe once a week and Simply Right
supervisor Parra never answered her calls. Clara Dep. 51: 6-22; 53: 2-22. “The one who was almost
[sic] there was Mr. Hidalgo and he was more likely to solve our problems.” Id. 53: 23-25, 54: 1-3.
There were also hours when the Plaintiffs worked at the theater during which no Cinemark employee
was present.
The Court finds a reasonable jury could conclude from these facts that Cinemark exercised
some degree of control over the Plaintiffs’ work conditions at the Greeley theater.
D.

“Degree” of Control

Before the Court concludes that summary judgment in Cinemark’s favor is improper based
on the disputed facts, I must consider whether the “degree” of the control exhibited by the disputed
facts is sufficient to recommend sending Plaintiffs’ FLSA claims against Cinemark to a jury. See

26

Harbert, 173 F. Supp. 2d at 1106 (an entity may constitute a “joint employer” under the FLSA if it
“possesse[s] sufficient indicia of control.”).
In Zheng, the Second Circuit reasoned that “extensive supervision [by a general contractor
over the work of an individual employed by a subcontractor] weighs in favor of joint employment
only if it demonstrates effective control of the terms and conditions of the plaintiff’s employment.”
Zheng, 355 F.3d at 75 (citing Rutherford, 331 U.S. at 726) (emphasis added). “By contrast,
supervision with respect to contractual warranties of quality and time of delivery has no bearing on
the joint employment inquiry, as such supervision is perfectly consistent with a typical, legitimate
subcontracting arrangement.” Id. (citing Moreau v. Air France, 343 F.3d 1179, 1188 (9th Cir. 2003)
(internal citations omitted)).
The Eleventh Circuit defines the degree of control as:
“Control arises ... when the [purported joint employer] goes beyond general
instructions ... and begins to assign specific tasks, to assign specific workers, or to
take an overly active role in the oversight of the work.” Aimable [v. Long & Scott
Farms], 20 F.3d [434], 441 [(11th Cir. 1994)] (explaining that although an
agricultural company’s decisions about what to plant and how much land to use
showed “abstract” control over farm workers, that type of control did not constitute
control for FLSA purposes). A purported employer takes an overly active role in the
oversight of work “when it decides such things as (1) for whom and how many
employees to hire; (2) how to design the employees’ management structure; (3) when
work begins each day; (4) when the laborers shall start and stop their work
throughout the day; and (5) whether a laborer should be disciplined or retained.”
Martinez–Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1209–10 (11th Cir.
2003) (quotation marks and citation omitted) (discussing “nature and degree of
control” factor as set forth in Aimable). When assessing the nature and degree of
control, our “focus is more properly limited to specific indicia of control.” Aimable,
20 F.3d at 440.
Layton, 686 F.3d at 1178.
In this case, the disputed facts demonstrate that Cinemark managers “beg[a]n to assign
specific tasks” to the Plaintiffs, including tasks apparently not contemplated by the JSA, and they
27

determined times at which the Plaintiffs could start their work in the evening (based on movie
schedules) and finish their work in the morning. The testimony also demonstrates that the Plaintiffs
were told by their Simply Right supervisor(s) to report to Cinemark managers with problems or
questions, and the managers provided the needed information or equipment. A reasonable jury
could conclude that, for those tasks (including extra-contractual) assigned by Cinemark, the
Plaintiffs believed that their work was properly supervised by Cinemark, and they were required to
comply with the managers’ orders and directives. Under these circumstances, the Court finds the
disputed facts demonstrate sufficient indicia of control and recommends that Judge Moore weigh
these factors in favor of a “joint employer” finding.
III.

Other Applicable Factors
Both parties also argue that consideration of the following factors supports their positions:

(1) whether the Plaintiffs were part of a business organization8 that could or did shift as a unit from
one putative joint employer to another; (2) whether the Plaintiffs provided services that were integral
to Cinemark’s business; (3) whether responsibility for the contract with Simply Right could pass
from one subcontractor to another without material changes; and (4) whether the Plaintiffs
performed “specialty” work.
A.

Contractor Shift as a Unit

The question here is not only whether Simply Right’s business did shift from one contractor
to another, but whether it could. Jean-Louis, 838 F. Supp. 2d at 132. This factor “is relevant
because a subcontractor that seeks business from a variety of contractors is less likely to be part of

8

The Court notes that the term “business organization” might also refer to a union (see
Rutherford, 331 U.S. at 725); however, the Court could find no case interpreting this factor as
such.
28

a subterfuge arrangement than a subcontractor that serves a single client.” Id. (quoting Zheng v.
Liberty Apparel Co., Inc., 355 F.3d 61, 72 (2d Cir. 2003)).
Here, it is undisputed that Simply Right is a janitorial services contractor that is “in the
business of providing [janitorial services] to the general public and other businesses.” Plaintiffs
argue that the factor considers whether they, themselves, seParrately owned a business that could
or did shift as a unit; however, the Court finds Plaintiff’s interpretation unpersuasive and
unsupported by the law. See Torres-Lopez v. May, 111 F.3d 633, 640 (9th Cir. 1997) (citing
Rutherford Food Corp. v. McComb, 331 U.S. 722, 731 (1947)).9 Thus, Cinemark is not Simply
Right’s only contractor, and the Court recommends concluding this factor weighs against a finding
of joint employment.
B.

Integral Services

The Court agrees with Plaintiffs that their work at the theater was integral to its function as
a movie theater “exhibiting movies” to the public. Certainly, most members of the public would be
averse to frequenting a theater whose bathrooms and auditoriums were dirty and foul-smelling.
Cinemark argues that the Plaintiffs’ work was not “integral” because it was not production
work performed alongside Cinemark’s employees and was primarily performed after hours. The
Court disagrees that these requirements are necessary to constitute “integral” work. However, the
Court agrees with Cinemark that “interpreted broadly, this factor could be said to be implicated in
every subcontracting relationship, because all subcontractors perform a function that a general

9

In Torres-Lopez, unlike here, the plaintiffs were farm workers who were not employees
of any company; “[r]ather, individual farmworkers would learn by word of mouth that the
cucumbers were ready for picking and find their own way to the cucumber field. Ag–Labor then
selected the farmworkers from the labor pool that showed up.” Id. at 644.
29

contractor deems ‘integral’ to a product or service.” Zheng, 355 F.3d at 73. Accordingly, the Court
recommends placing the appropriate weight on this factor, keeping in mind the Second Circuit’s
admonition.
C.

Passing of Contract Responsibilities

On its face, the Court might agree with Plaintiffs that obligations and responsibilities under
the JSA could pass from one cleaning subcontractor to another without any material changes.
However, this observation does not take into account the Supreme Court’s concern about the
workers themselves.

In Rutherford, the Supreme Court explained that the workers in a

slaughterhouse were supervised by a single individual who contracted the work with a packing
company and, as each supervisor (at least three) “abandoned” his post, the work was taken over by
certain subordinates who had already been there and working. Rutherford, 331 U.S. at 724–25.
Thus, the Supreme Court recognized that supervision responsibilities of these workers passed from
one supervisor to the next with little, if any, changes, including that the work was performed by the
same individuals who had been already working there. Id. Based on this proposition, Cinemark
argues that because the Plaintiffs were not “tied” to it—i.e., they did not work for Cinemark before
or after their employment with Simply Right—this factor weighs against joint employment.
The Court finds that, for this factor, it must not only determine whether the JSA’s provisions
and obligations could “pass” easily from one subcontractor to the next, but also consider that the
“material changes” qualifier includes whether such “pass” would result in the termination of the
Plaintiffs’ services at Cinemark. Here, there is no indication that, had Simply Right or Cinemark
terminated the JSA, the Plaintiffs would continue to work at the Greeley theater. Therefore, the
Court recommends Judge Moore find this factor weighs against a finding of joint employment.

30

D.

Specialty Work

Plaintiffs also argue that the work they performed required no specialized skills, training, or
certification and, thus, “is indicative of employee status.” The Court agrees with this proposition,
but notes that this factor is actually derived from the Supreme Court’s opinion in Rutherford where
the Court focused on the fact that the workers completed one process in the middle
of a series of interdependent steps at the slaughterhouse. The facts led the Court to
conclude that the workers “did a specialty job on the production line” that was “more
like piecework than an enterprise that actually depended for success upon the
initiative, judgment or foresight of the typical independent contractor.” Id. at 730, 67
S.Ct. at 1477. Because the workers were “part of the integrated unit of production”
of the slaughterhouse, the Court found them to be employees of the establishment.
Id. at 729, 67 S.Ct. at 1476.
Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1180 (11th Cir. 2012) (quoting Rutherford, 331
U.S. at 729–30). In this case, it is undisputed that the Plaintiffs worked on no production line, and
the work they performed was not “piecework” in an effort to “complete[] one process in the middle
of a series of interdependent steps.” Id. In fact, although cleaning a movie theater is certainly
integral to a theater’s ability to earn profits by repeat business, the cleaning itself is not a necessary
step in the theater’s primary business of exhibiting movies. Therefore, the Court recommends
finding that this factor weighs neutrally.
CONCLUSION
Of the factors considered, only those concerning Cinemark’s degree of control over the
Plaintiffs’ work schedule, responsibilities, and conditions raise factual issues. The undisputed facts
show Cinemark did not have the power to hire, discipline, and fire the Plaintiffs; determine the rate
and method of payment to the Plaintiffs; maintain Plaintiffs’ employment records; and, design the
Plaintiffs’ management structure. Moreover, the facts show the Plaintiffs were part of a business
organization, Simply Right, that could shift as a unit from one putative joint employer to another,
31

and the responsibility for the contract with Simply Right could not pass from one subcontractor to
another without material changes, including the termination of the Plaintiffs. Conversely, the facts
demonstrate the Plaintiffs worked solely at the Cinemark theater during their employment; Cinemark
was contractually responsible for providing the supplies and equipment necessary for Plaintiffs’
work; and, the Plaintiffs followed the instructions and directives of Cinemark’s managers at the
Greeley theater.
Although the number of factors weighing against joint employment in this case exceed those
in favor, the Court must not rely solely on such computation. In Layton, the court listed five
principles used to guide its joint employer analysis:
First, the question in “joint employment” cases is not whether the worker is more
economically dependent on the independent contractor or the [alleged employer],
with the winner avoiding responsibility as an employer .... [T]he focus of each
inquiry must be on each employment relationship as it exists between the worker and
the party asserted to be a joint employer.
Second, no one factor is determinative. As we explained in Aimable, the existence
of a joint employment relationship depends on the economic reality of all the
circumstances.
Third, the factors are used because they are indicators of economic dependence.
They are aids—tools to be used to gauge the degree of dependence of alleged
employees on the business to which they are connected .... Thus, the weight of each
factor depends on the light it sheds on the [ ]workers’ economic dependence (or lack
thereof) on the alleged employer, which in turn depends on the facts of the case.
Fourth, a joint employment relationship is not determined by a mathematical formula
.... The purpose of weighing the factors is not to place each in either the contractor
or the [alleged employer’s] column, but to view them qualitatively to assess the
evidence of economic dependence, which may point to both.
Fifth, in considering a joint-employment relationship, we must not allow
common-law concepts of employment to distract our focus from economic
dependency.
686 F.3d at 1177–78 (quoting Antenor v. D & S Farms, 88 F.3d 925, 932–33 (11th Cir. 1996)
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(quotation marks and citations omitted)). With these principles in mind, the Court concludes that
the undisputed facts do not resolve the issue one way or the other, and the disputed facts present a
genuine issue as to whether the Plaintiffs were economically dependent on Cinemark. See, e.g.,
Matrai v. DirecTV, LLC, 168 F. Supp. 3d 1347, 1355–56 (D. Kan. 2016) (court found disputed
issues of fact as to whether the purported employer had control over the plaintiffs’ assignments,
schedules, and performance, and the evidence demonstrated managers “may have imposed and
communicated requirements that went beyond the semblance of mere quality control.”).
Based on the entire record and for the reasons stated above, the Court respectfully
recommends that Defendant Cinemark USA, Inc.’s Motion for Summary Judgment [filed November
11, 2016; ECF No. 123] be denied, 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] be
denied without prejudice as to the relief sought by the stayed Plaintiffs and the class and,
otherwise, denied.
Respectfully submitted at Denver, Colorado, this 27th day of February, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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