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

Filing 185

ORDER adopting in part and rejecting in part 168 Report and Recommendations, granting 123 Cinemark's motion for summary judgment, denying in part and denying without prejudice in part 134 plaintiffs' motion for partial summary judgment. So Ordered by Judge Raymond P. Moore on 05/22/2017. (rmlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Case No. 15-cv-00974-RM-MEH
AURELIO SANCHEZ, et al.,
Plaintiffs,
v.
SIMPLY RIGHT, INC., et al.,
Defendants.
______________________________________________________________________________
OPINION AND ORDER
______________________________________________________________________________
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”).

1

Another Report and Recommendation (ECF No. 174), as well as two other motions (ECF
Nos. 177, 178) are also pending before the Court. The Court will address those matters in other order(s).
2

The named plaintiffs in this action are: Aurelio Sanchez (“Aurelio”); Domingo Sanchez
(“Domingo”); Daniel Hernandez (“Hernandez”); Miguel Angel Godoy (“Godoy”); Benita Arreola
(“Benita”); Jose Luis Arreola (“Jose Luis”)’ and Clara Arreola (“Clara”). Three further individuals have
opted to join this lawsuit: Maribel Arreola (“Maribel”); Nazario Arreola (“Nazario”); and Armida Raya
(“Raya”).

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
2

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
3

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 nonmovant “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

3

The Court notes that plaintiffs do not respond to any of Cinemark’s objections to the Magistrate
Judge’s factual findings. (See generally ECF No. 173.)

4

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

4

This includes any objection to factual findings 29, 48-49. (See ECF No. 169 at 20.)

5

Cinemark also objects on the ground that Raya’s testimony does not reflect that she meant the
word “problem” in the sense of a problem with cleaning. (ECF No. 169 at 18.) The Court disagrees, given
that Raya uses the word “clean” in the immediately preceding sentence.

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 142:19143:18.) “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.

6

Cinemark asserts that Raya selected who to bring on the walk-throughs. (ECF No. 169 at 19.)
Raya’s deposition testimony is not clear on this issue, however, as she both responds to a question whether
she selected “Daniel and Benita” with a “[y]es,” and that a Cinemark manager requested her to tell the
janitors to do walk-throughs “maybe like about two or three times.” (ECF No. 134-6 at 142:19-25, 143:2325.) The Court will not resolve this apparent ambiguity in Raya’s deposition testimony in Cinemarks’ favor
at this stage in proceedings.
7

Cinemark appears to assert that emails were sent only with respect to “midnight showings.” (ECF
No. 169 at 19) (alteration and quotation omitted). This mischaracterizes Raya’s testimony, however, as she
used “midnights” as an example of when she would have to tell cleaners when to arrive. (ECF No. 134-6
at 110:17-20.)

6

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

7

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.)

8

Cinemark asserts that Clara’s testimony does not indicate who said this to her. (ECF No. 169
at 19.) The Court disagrees, as her testimony clearly references “Cinemark employees” and then her being
told not to stay so late. (ECF No. 134-3 at 66:12-19.) Cinemark also asserts that Clara’s deposition
testimony in this regard was offered in support of plaintiffs’ motion for partial summary judgment. (ECF
No. 169 at 19.) However, plaintiffs also cited this testimony in their response statement of undisputed facts
with respect to Cinemark’s motion for summary judgment. (ECF No. 148-1 at ¶ 14.) Therefore, the
Magistrate Judge properly considered it in assessing Cinemark’s motion for summary judgment.

8

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.

9

The Court notes that the issue of plaintiffs’ job duties is discussed in more detail infra.

9

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 nonstayed 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 U.S. Supreme
Court has “explicitly approved of the use of representative evidence to establish liability in FLSA
actions,” citing Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___, 136 S.Ct. 1036 (2016).
The Court agrees with the ultimate resolution (although, not with all of its alleged support)
sought by Cinemark. The Court first resolves plaintiffs’ assertion that Cinemark did not raise this
argument before the Magistrate Judge. While the Court agrees that Cinemark’s motion for summary
judgment is not a model of clarity when it comes to whether plaintiffs’ claims should be assessed
individually, the Court notes that the motion begins by requesting summary judgment as to plaintiffs’
“individual” claims. (See ECF No. 123 at 1.) To the extent the motion for summary judgment was
unclear, Cinemark’s reply makes clear that they sought summary judgment as to plaintiffs’ individual
claims. (ECF No. 164 at 1, 8-10.) As a result, the Court rejects plaintiffs’ argument in this regard.

10

Next, the important matter to resolve is the substantive issue of whether the facts underlying
plaintiffs’ claims should be considered collectively or individually. The Court believes they should
be considered individually as to each plaintiff, at least under the circumstances here. The case to
which plaintiffs cite, Tyson Foods, supports this conclusion.10 In Tyson Foods, the Supreme Court
was faced with, inter alia, the question whether the plaintiffs could rely upon “representative
evidence” to show the amount of time the plaintiffs spent donning and doffing certain equipment.
Tyson Foods, 136 S.Ct. at 1043, 1046. The Supreme Court rejected the request to pronounce a broad
rule against the use of representative evidence in class actions. Id at 1046. Instead, the Supreme
Court held that the permissibility of such evidence turned on “the degree to which the evidence is
reliable in proving or disproving the elements of the relevant cause of action.” Id. With respect to
the issue presently before this Court, the Supreme Court notably stated that, “[i]n a case where
representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be
deemed improper merely because the claim is brought on behalf of a class.” See id. (emphasis
added). The Supreme Court then explained that one way to show that representative evidence was
a permissible method of proving classwide liability was to show that each class member could have
relied upon such evidence to establish liability “if he or she had brought an individual action.” Id.
“If the [representative evidence] could have sustained a reasonable jury finding as to hours worked
in each employee’s individual action, that [evidence] is a permissible means of establishing the
employees’ hours worked in a class action.” Id. at 1046-47.
Thus, as plaintiffs assert, the Supreme Court has sanctioned the use of representative
evidence in class actions, but it is for the purpose of establishing liability in an individual action, and
10

The Court does not find useful the cases to which Cinemark cites (ECF No. 169 at 6), as they do
not address this issue in any detail.

11

to be used only if it is relevant in proving an individual’s claim. Here, plaintiffs make no argument
that all of the evidence they wish to use is relevant to proving their individual claims. In fact,
plaintiffs do not even explain why the evidence in this case should be considered representative in
the sense that the evidence applies equally or, at least, approximately equally to each plaintiff.11 In
many respects plaintiffs’ evidence is not. For example, in the R&R, the Magistrate Judge cited
testimony from individual plaintiffs as to specific communications they had with Cinemark
employees, specific tasks Cinemark employees asked them to do, and specific instances where they
were told to finish their work earlier. (ECF No. 168 at 20-21, 23-26.) However, each of these events
is specific only to the individual plaintiff to which the event happened. In other words, the events
have no relevance to any of the other plaintiffs because they did not happen to them. As such, to the
extent the Magistrate Judge effectively aggregated these specific instances of purported work control,
that was error, as they only applied to the relevant individual non-stayed plaintiff.
That is not to say, however, that there is not representative evidence in this case. For
example, the “guidelines” listed in Addendum A to the JSA govern the performance of Simply
Right’s services under the JSA. (ECF No. 124 at ¶ 2.2.) Putting aside for now Cinemark’s apparent
dispute over the applicability of the Addendum, it is “representative” in the sense that it provides
guidelines for all of Simply Right’s services, including those provided by the non-stayed plaintiffs.
The same is true of the Golden Rules and the job description for plaintiffs’ jobs. There is no error

11

To be clear, this is not to say that all representative evidence must apply exactly equally to each
plaintiff. In the case of statistical evidence that is obviously not the case. See Tyson Foods, 136 S.Ct.
at 1046. In this case, however, the representative evidence is not statistical in form. As the Supreme Court
explained, the use of representative evidence, including statistics, “will depend on facts and circumstances
particular to each case.” Id. at 1049.

12

in citing to those pieces of evidence and saying that plaintiffs’ job duties are this or that, rather than
mentioning each plaintiff by name and saying the same thing.
The Court also rejects plaintiffs’ apparent policy argument that assessing claims individually
is “particularly misplaced” in this context. (See ECF No. 173 at 9.) Other than asserting that the
joint-employment inquiry focuses upon the “totality of the circumstances,” which is undoubtedly
true, plaintiffs provide no explanation for why this should mean that the facts underlying their claims
should be aggregated. Merely because the analysis focuses upon the totality of the circumstances
does not mean that the total for a specific plaintiff is made up of all other plaintiffs’ alleged
circumstances. Instead, under the circumstances of this case and the tests for joint employment
proposed by the parties, it should be the totality of circumstances relevant to a particular plaintiff.
As explained supra, to do otherwise would allow evidence to be considered that is irrelevant to a
specific plaintiff’s claims. And there is no policy argument that can favor the consideration of
irrelevant evidence.
As such, going forward, to the extent that evidence is representative of each non-stayed
plaintiff’s work, the Court will consider it as being relevant to said plaintiff’s claims. To the extent
the evidence is not representative, though, it will only be considered as relevant to the specific
plaintiff to whom it applies. To be clear, therefore, the non-stayed plaintiffs’ claims will be assessed
individually.
B.

The Applicable Test for Assessing Joint Employment

The parties advocated two different tests for assessing whether Cinemark was a joint
employer for purposes of the FLSA. Cinemark requested that a four-factor test set forth in Bonnette
v. California Health & Water Agency, 704 F.2d 1465 (9th Cir. 1983), be used. (ECF No. 123 at 4-5.)

13

Plaintiffs advocated for a test “drawn from various circuits’ case law” that purportedly included three
of the four Bonnette factors, as well as five other factors. (ECF No. 148 at 4-5.) Both parties,
however, ended up assessing all of the Bonnette factors, as well as many other factors. (ECF
No. 123 at 5-19; ECF No. 148 at 5-13.) Perhaps understandably, therefore, the Magistrate Judge also
assessed a number of factors that could “reasonably apply” to the circumstances here. (See ECF
No. 168 at 19.) As such, the Court sees little error in the Magistrate Judge considering factors
outside the Bonnette test, given that the parties spent so much of their briefing discussing those
additional factors. As for Cinemark’s objection that the additional factors were “irrelevant,” this is
sharply undermined by Cinemark spending more time bringing those factors to the Magistrate
Judge’s attention in its motion for summary judgment (and relying upon them), than it did addressing
the Bonnette factors. (See ECF No. 123 at 5-19.)12
As a result, the Court will not disturb the factors considered by the Magistrate Judge because
the Court does not find Cinemark’s objection to be well-taken.13

12

The Court also rejects Cinemark’s objection that the Magistrate Judge relied upon a regulation
from the Department of Labor. (ECF No. 169 at 12.) Although the Magistrate Judge cited the regulation,
and stated that it would focus its analysis pursuant to one part of the same, the R&R’s actual analysis
reflects that the Magistrate Judge relied upon the Bonnette factors and other factors argued by the parties.
(See ECF No. 168 at 19-31.) Notably, the Magistrate Judge does not cite the regulation again, and does not
cite it at all in the R&R’s analysis section. (See id.) Therefore, to the extent consideration of the regulation
was error, which the Court does not decide, its mention in the R&R did not prejudice Cinemark.
13

If the Court were writing on a clean slate, it would likely not adopt either test advocated by the
parties. Instead, the Court likely would be persuaded to adopt the test recently pronounced by the Fourth
Circuit Court of Appeals in Salinas v. Commercial Interiors, Inc., 848 F.3d 125 (2017). The Court is
inclined to do so because it agrees with the Fourth Circuit that the test set forth in Salinas focuses upon the
relevant relationship—“the relationship between the putative joint employers”—as opposed to the
relationship between the employee and the putative employers. Salinas, 848 F.3d at 142. As the Fourth
Circuit explained, the latter relationship is still part of the inquiry, but it is distinct from the former and
addressed separately. Id. at 142-143. However, the Court chooses not to take this approach in this case, not
least because Salinas was decided after Cinemark’s motion for summary judgment was filed. Moreover,
although plaintiffs cite to Salinas in their response to Cinemark’s objections (ECF No. 173 at 2 n.2, 14, 15
n.10, 17), they persist in advocating for their self-made “modern test of joint employment” (id. at 15-16),

14

C.

The Magistrate Judge’s Assessment of Joint Employment

The Magistrate Judge initially found that three of the four Bonnette factors weighed against
plaintiffs. Specifically, the Magistrate Judge found that there were no genuine issues of material fact
that Cinemark did not (1) have the power to hire or fire plaintiffs; (2) determine the rate and method
of plaintiffs’ payment; and (3) maintain plaintiffs’ employment records. (ECF No. 168 at 19.) No
objection has been made to those findings. Keeping to factors that the Magistrate Judge found
weighed against a finding of joint employment, the Magistrate Judge found that (1) Cinemark was
not Simply Right’s only contractor, and (2) plaintiffs would not continue to work at the Greeley
theater if the JSA was terminated. (Id. at 28-30.) No timely objection has been raised to these
findings.14 The Magistrate Judge also found that one factor—whether plaintiffs engaged in specialty
work—was neutral. (Id. at 31.) No timely objection has been made to this finding either.15

which ignores the test established in Salinas. As such, the Court has received no argument as to how the
facts of this case mesh with the Salinas test. Moreover, the way the parties have presented their facts and
arguments is within the framework of Cinemark’s relationship with the non-stayed plaintiffs, rather than
Cinemark’s relationship with Simply Right. The Court would, thus, be writing on a blank slate, which it
does not believe would be appropriate, and will not do on this occasion. In addition, adoption of Salinas
may very likely alter the Court’s assessment of whether facts can be considered collectively, at least for
purposes of the joint-employer analysis, because the Salinas test appears to find relevant all of the
circumstances between putative employers, even if they only occurred on one occasion or applied to only
certain plaintiffs. See Salinas, 848 F.3d at 145-147. Plaintiffs, though, do not make that argument, and, as
noted, frame their arguments in terms of the relationship between an employee and the putative employer.
With all of this being said, however, it provides further reason for why the Court does not believe
Cinemark’s objection, as to the test used for establishing joint employment, to be well-taken.
14

Plaintiffs appear to make an argument in their response contrary to the Magistrate Judge’s
finding that Cinemark was not Simply Right’s only contractor, in that plaintiffs assert that this factor looks
at whether the plaintiffs had a business that could shift from one employer to another. (See ECF No. 173
at 17-18.) Plaintiffs do a similar thing with respect to whether responsibilities under the JSA could pass
from one subcontractor to another. (See id. at 18.) Plaintiffs do not assert that they are objecting to the
R&R in these regards, even though the Magistrate Judge found, with respect to one of these factors, that
plaintiffs’ interpretation was “unsupported by the law” (ECF No. 168 at 29), and, as explained supra, even
if they did frame their arguments as objections, they would be untimely. Therefore, the Court considers the
Magistrate Judge’s findings in this regard to be undisputed.
15

As discussed in the preceding footnote, plaintiffs again attempt to do an end-run around objecting
to the R&R by simply making an argument contrary to the Magistrate Judge’s findings without framing the

15

The Magistrate Judge did find, however, that one of the Bonnette factors—supervision and
control over employee work schedules and conditions of employment—could not be resolved in
Cinemark’s favor. (ECF No. 168 at 20-28.)16 It is evident from the R&R that it was this factor that
resulted in the Magistrate Judge recommending to deny Cinemark’s motion for summary judgment.
(See id. at 31-33.) As such, the Court focuses its attention on the same.
The Magistrate Judge first considered plaintiffs’ work schedules. (Id. at 20-21.) The
Magistrate Judge found that, for purposes of summary judgment, Cinemark controlled plaintiffs’
work schedules for the following reasons. Raya testified that, based upon movie schedules,
Cinemark managers notified her about the time they would like the cleaners to start work. (Id.
at 20.) Maribel and Nazario, knowing Cinemark’s requirement that the theater needed to be cleaned
by 10:30 a.m., arrived at work between 5:00 and 5:30 a.m. based on various factors. Clara was not
allowed to start cleaning until the public was gone. (Id.) Clara was admonished by Cinemark
employees for staying as late as 8:30 a.m. to finish her work. (Id. at 21.) Jose Luis was directed by
a Cinemark employee to finish cleaning the theater by 8:00 a.m. each day, and, on other occasions,
he was told to stay because the theater was not right. (Id.)

argument as an objection. (See ECF No. 173 at 19-20.) For the reasons already stated herein, the Court
will not allow this.
16

The only other factor that the Magistrate Judge found weighed in favor of Cinemark being a joint
employer was that plaintiffs’ work was “integral” to Cinemark. (ECF No. 168 at 29-30.) The Court agrees
with the Magistrate Judge. However, the Magistrate Judge does not appear to have placed any weight on
this factor in summarizing the reasons for denying Cinemark’s motion for summary judgment, as it is not
mentioned in that summary. (See id. at 31-32.) As discussed in more detail infra, the Court does not
disagree with the Magistrate Judge’s decision to place little or no weight on this factor. (See id. at 29-30.)
For that reason, the Court again points out that Cinemark’s objection to the Magistrate Judge’s formulation
of the joint -employer test does not appear to be well-taken. The Magistrate Judge’s summary of the
relevant factors demonstrates that the only factor weighing against Cinemark was a Bonnette factor. (See
id. at 32.) All of the other factors from outside Bonnette, and summarized as relevant to the Magistrate
Judge’s analysis, weighed in favor of Cinemark. (See id. at 31-32.)

16

The Court does not find these facts sufficiently show that Cinemark had control over
plaintiffs’ work schedules. The important thing to note in this regard is that the JSA provided that
Simply Right would perform cleaning services between “box office close and two hours prior to
theatre opening ….” (ECF No. 124 at 32.) All but a few of the facts upon which the Magistrate
Judge relied are entirely consistent with this broad time frame for plaintiffs to perform their work.
In other words, the Court does not find such a broad time frame for when plaintiffs could start and
finish their work to constitute “control” for purposes of this test. Clara’s testimony that she was not
allowed to start work until the public was gone is entirely consistent with the broad time frame set
forth in the JSA. Simply because she could not permissibly start work until after the public had
gone, does not mean that Cinemark controlled when she could actually start. Maribel’s testimony
affirms this.
Contrary to the Magistrate Judge’s finding, Maribel did not testify that knowing the theater
needed to be clean by 10:30 a.m. affected her decision when to begin. Rather, Maribel testified that
it “didn’t matter whether we arrived in the morning or at night,” as long as the theater was clean by
10:30 a.m. (ECF No. 123-10 at 18:20-23.) Maribel further testified that her decision on whether
to begin working in the morning or the evening was based, for weekends, on wanting to spend time
with her children, and, during the week, on whether Nazario needed to get to his other work. (Id.
at 54:8-18.) In other words, the decision on when to start was not based upon the knowledge that
the theaters had to be clean by 10:30 a.m.; instead it was a decision based on purely personal factors.
As such, Maribel’s testimony, if anything, undermines the contention that Cinemark controlled
plaintiffs’ work schedules because Maribel’s testimony shows that she could decide when to start,

17

with this decision being affected by Maribel’s personal circumstances, rather than the dictates of her
job.
As for Clara and Jose Luis’ testimony that they were told, respectively, to finish work before
8:30 a.m. or by 8:00 a.m., that does not mean Cinemark had control over their work schedules, at
least not in the context of the broad time frame the JSA provided for the work to be completed.
Raya’s testimony that Cinemark managers sent her emails for when they wanted individuals to start
cleaning is somewhat more troubling, but when read in context, it does not suggest any greater
degree of control over plaintiffs’ work schedules. Notably, Raya immediately then affirmed that
there was no set time for when individuals had to begin work, and further testified that Cinemark
managers told individuals they could not start working because movies were still playing. (ECF No.
134-6 at 110:21-111:11.) Read in context, this testimony indicates that Cinemark managers were
not sending Raya emails instructing her on when individuals could begin work, but, rather, telling
her the times that individuals could not start work because the theater would still be open. This is
again consistent with the broad time frame allowed under the JSA. Finally, Jose Luis’ testimony,
that he was told to stay because he had not done work right, does not indicate any meaningful degree
of control over his work schedule. It may indicate a degree of control over the performance of his
work, but asking him to satisfactorily do his work has only an incidental affect on his work schedule.
As a result, the Court finds that the facts upon which the Magistrate Judge relied upon to find
Cinemark exercised some degree of control over plaintiffs’ work schedules to be insufficient for that
purpose.
The Magistrate Judge next considered plaintiffs’ work responsibilities. (ECF No. 168
at 21-25.) The Magistrate Judge found, for purposes of summary judgment, that Cinemark exercised

18

some degree of control over plaintiffs’ work responsibilities for the following reasons. Addendum A
to the JSA included a list of “guidelines,” describing daily and weekly cleaning services needed for
the theater. (Id. at 21-23.) Raya testified that two to three times during her employment with Simply
Right, Cinemark managers asked cleaners to accompany the manager and Raya on inspection walkthroughs. (Id. at 23.) Jose Luis testified that Cinemark managers identified problem areas that
needed more attention, and instructed him to move some video games and what chemicals to use on
the video games. Jose Luis was asked to clean the cup-area and window displays, and move the
popcorn machines. Jose Luis was also told to start folding carpets in the lobby. Clara testified that
she rarely saw or communicated with Simply Right supervisors, and a Cinemark manager was “more
likely to solve our problems.” (Id.) Clara testified that a Cinemark manager told Jose Luis to clean
the toilets better. (Id. at 23-24.) A Cinemark manager instructed Clara to dust high areas in the
bathrooms, to clean ice-melting salt, and clean trash cans to the bottom. (Id. at 24.) Maribel testified
that Cinemark employees checked her work, and, if there was something they did not like, told
Maribel to go back and finish cleaning. On one occasion, a Cinemark manager told Maribel to use
another chemical in a room to remove the smell of vomit. On one other occasion, a Cinemark
manager asked Maribel to interpret instructions to two other cleaners. A Cinemark manager also
once told Maribel that she needed to clean gum off of the floor, and there were unclean seats that
needed cleaning. (Id.)
The Court agrees with the Magistrate Judge that these facts indicate some degree of control
over plaintiffs’ work responsibilities/duties. The Court places the greatest emphasis on Addendum A
to the JSA. Contrary to Cinemark’s objection, the Court does not find the JSA to be a “scope of
work” whose “translation” was set by Simply Right’s job description. To the extent that the JSA can

19

be considered a “scope of work,” it was Addendum A’s “guidelines” that dictated its translation.
That much is clear from the text of the JSA, which states that Simply Right agreed to provide the
services described in Addendum A. (ECF No. 124 at ¶ 2.2.) To suggest that those described
services did not then, in turn, dictate the services Simply Right asked plaintiffs to perform is simply
disingenuous. Put another way, Cinemark cannot demand a long list of services that it wants Simply
Right to perform, and then absolve itself of being responsible for the setting of those services when
Simply Right turns around and requires individuals to perform them. Such an argument simply
ignores the “economic realities” of Cinemark’s relationship with Simply Right and plaintiffs.
That much is shown by the similarities in the services listed in Addendum A and those listed
in plaintiffs’ job description and/or “Golden Work Rules.” The services listed in Addendum A are
quoted in pertinent part in the R&R. (ECF No. 168 at 21-23.) The job duties listed in the
description for plaintiffs’ jobs (ECF No. 123-4 at 31-33) substantially mirror or, at the very least,
maintain consistency with the services in Addendum A. Some of the similarities are obvious. For
example, Addendum A requires that all windows under 8 feet be spot cleaned; an identical job duty
is listed in the job description. (Compare ECF No. 124 at 31, with ECF No. 123-4 at 31.) Other job
duties may not be so specifically identical, but it can still be inferred, at least for summary judgment
purposes, that they take direction from Addendum A. (Compare ECF No. 124 at 30-32, with ECF
No. 123-4 at 31-32 (e.g., cleaning of restrooms, mopping of floor surfaces, sweeping auditoriums,
emptying and cleaning trash cans, cleaning doors, dusting of lights and vents)). There are certainly
some discrepancies between the two lists. For example, Addendum A states that any found articles
must be placed in an area designated by Cinemark, whereas the job description states that a
supervisor should be notified of any items left in a theater. (Compare ECF No. 124 at 31, with ECF

20

No. 123-4 at 32.) However, for purposes of summary judgment, a rational factfinder could find that
the job duties set in plaintiffs’ job description were derived from the services required under
Addendum A. In turn, the Court, thus, finds that it could be inferred that plaintiffs’ job duties were
controlled, at least in part or jointly, by Cinemark.
Moreover, it is in this context that the instances cited in the R&R of communications or
interactions between Cinemark employees and plaintiffs with respect to plaintiffs’ work performance
must be viewed. (See ECF No. 168 at 23-24.) In other words, although the Court agrees with
Cinemark that the number of alleged instances of communications between Cinemark employees
and plaintiffs appears to be low in light of the time span that plaintiffs worked at Cinemark’s theater
(see ECF No. 169 at 7-11 (asserting that Nazario worked at a Cinemark theater for 388 days, Maribel
worked at a Cinemark theater for 13 months, and Clara and Jose Luis worked at a Cinemark theater
for 2 years); see also ECF No. 173 at 10-13 (not responding to the length of plaintiffs’ work periods
at Cinemark theaters)), during the entire length of plaintiffs’ work at the Cinemark theater they were
subject to the job duties derived from Addendum A. Thus, while the Court may agree that the
number of specific interactions between plaintiffs and Cinemark employees may be low in context
(and, in Nazario’s case, almost to completely non-existent), that does not turn this factor in
Cinemark’s favor in light of the continuing presence of the services required by Cinemark pursuant
to the JSA’s Addendum A.
As a result, like the Magistrate Judge, the Court finds that, for purposes of Cinemark’s
motion for summary judgment, this factor weighs in favor of joint employment. To what extent it
weighs in favor is discussed in more detail infra.

21

The Magistrate Judge finally considered plaintiffs’ work conditions. (ECF No. 168 at 25-26.)
The Magistrate Judge found, for purposes of summary judgment, that Cinemark exercised some
degree of control over plaintiffs’ work conditions because plaintiffs worked at no business other than
Cinemark’s theater in Greeley, Cinemark was responsible for purchasing the cleaning supplies used
by plaintiffs, Maribel was told to ask “the movie people” if she needed cleaning supplies, on one
occasion Maribel interpreted a Cinemark manager’s instructions to two other workers, Jose Luis
testified that he had more contact with Cinemark’s managers, a Cinemark manager told Jose Luis
what chemicals to use to clean a video machine, and Clara testified that a Cinemark manager was
more likely to solve her problems. (Id. at 25-26.)
Cinemark’s objections to these findings are meager at best. Essentially, Cinemark asserts
that this Court should reject the Magistrate Judge’s findings because another court has found that
it would be “quite unusual” for a service provider to never have contact with its client. (See ECF
No. 169 at 15-16.) Cinemark also asserts that the Magistrate Judge did not cite any other cases that
consider the issues relied upon in the R&R for purposes of this factor. (Id. at 16.) Cinemark’s
objections are simply inadequate. First, simply asserting that the Magistrate Judge did not cite other
cases does not explain why the issues considered are irrelevant to the analysis of this factor. Second,
merely because another court has not found contact between a putative employer and employee to
be unusual, that does not make it so under the facts of this case. This is especially so to the extent
that it shows some degree of control over work conditions, and particularly with respect to Jose Luis
and Clara who, the Magistrate Judge found, testified that, respectively, they had more contact with
Cinemark employees or Cinemark employees were more likely to solve problems.

22

Put simply, as the Magistrate Judge found, there was some degree of control over plaintiffs’
work conditions here. The more important issue is whether that degree of control, along with the
other elements of control or the lack thereof discussed supra, was sufficient to create a genuine issue
of material fact as whether Cinemark jointly employed plaintiffs.
With respect to that issue, the Magistrate Judge found that the disputed facts demonstrated
Cinemark had sufficient indicia of control over plaintiffs’ work to weigh in favor of joint
employment. (ECF No. 168 at 27-28.) The Magistrate Judge found that Cinemark managers began
to assign tasks to plaintiffs, Cinemark determined times plaintiffs could start and finish their work,
plaintiffs were told to report to Cinemark managers with problems or questions, and plaintiffs
believed that their work was properly supervised by Cinemark. (Id.)
Cinemark objects to these findings, principally, on the basis that the Magistrate Judge
purportedly “lost sight” of the totality of the circumstances. (ECF No. 169 at 16.) Cinemark asserts
that it does not hire, fire, train, discipline, or pay Simply Right’s workers. Cinemark further asserts
that plaintiffs decided when to begin and end work, plaintiffs decided how to divide up the work
amongst themselves, and plaintiffs were only rarely, if ever, given specific directions from Cinemark
managers. (Id.)
The Court agrees with Cinemark, at least to the extent that the Court finds that there is
insufficient evidence to create a genuine issue of fact with respect to whether Cinemark controlled
plaintiffs’ work such that Cinemark jointly employed plaintiffs. As an initial matter, the Court
agrees with the Magistrate Judge that no multi-factor test should be decided simply by adding up the
number of factors that fall on each side of the ledger. (See ECF No. 168 at 32.) That is no way to
decide a case. The Court also agrees that, in some cases, a small collection of factors may so

23

persuasively show a joint employment relationship that how the other factors fall may be irrelevant.
But, that is not the case here.
Here, the fact that weighs in favor of all plaintiffs is that plaintiffs’ work duties were arguably
set in large part by Addendum A; in other words, in large part by Cinemark. This is no small fact.
But it is not enough, at least not when faced by the countervailing force of the facts stacked against
finding a joint employment relationship. As the Magistrate Judge found, there is no evidence that
Cinemark had the power to hire or fire plaintiffs, set the rate or method of their pay, or maintain their
employment records. (ECF No. 168 at 31.) Added to this, the Court finds that Cinemark did not
have sufficient control over plaintiffs’ work schedules. As discussed supra, although the permissible
start and end points were set by Cinemark, in between these broad points plaintiffs could exercise
their own discretion as to when they started and finished working. The Court does not find this to
be sufficient control over plaintiffs’ work schedules to suggest that Cinemark was plaintiffs’ joint
employer.
The Magistrate Judge also found that Cinemark began to assign specific tasks to plaintiffs.
As an initial matter, this is not true of Nazario. There are no facts found in the R&R to show that
Nazario was assigned specific tasks by Cinemark. (See ECF No. 168 at 8-9, 21-26.) As for the other
plaintiffs, the Magistrate Judge does find instances of specific tasks being assigned to plaintiffs, or,
at least, specific instructions being given to plaintiffs on how to complete their tasks. (See id.
at 21-26.) However, the Court finds it important the length of time these plaintiffs worked at the
Cinemark theater and the number of instances of direction from or interaction with Cinemark
employees. As mentioned supra, Cinemark asserts, without response from plaintiffs, that Maribel
worked at a Cinemark theater for 13 months, and Clara and Jose Luis worked at a Cinemark theater

24

for 2 years. (See ECF No. 169 at 8-11; ECF No. 173 at 10-13.) Cinemark further asserts that
Maribel and Jose Luis had a “handful” of interactions with Cinemark employees, while Clara
testified that her interactions happened about five times each. (ECF No. 169 at 8-11.) These
characterizations are largely borne out by the facts found in the R&R.
Notably, the Magistrate Judge refers to only a limited number of events with respect to each
plaintiff. (See ECF No. 168 at 23-26.) For Maribel, it is Cinemark employees checking her work and
telling her to complete it if they were unhappy, a Cinemark manager telling her to clean a room that
smelled of vomit, a Cinemark manager asking her to interpret instructions to other workers, and her
being told to ask the “movie people” for cleaning supplies. (Id. at 24-26.) Over the course of
working at the Cinemark theater for 13 months, the Court does not find that these limited
interactions create a genuine issue of material fact with respect to Maribel being jointly employed
by Cinemark. Even if the Court were to accept the arguably more expansive recitation of
interactions in plaintiffs’ response statement of facts (see ECF No. 148-1 at ¶ 44), this would still
not rise to the level of control necessary.
In one of the cases plaintiffs rely upon for their “modern test” of joint employment, Zheng
v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003) (see ECF No. 173 at 15 n.10), the Second
Circuit Court of Appeals explained that “extensive supervision of a plaintiff’s work is indicative of
an employment relationship…only if it demonstrates effective control of the terms and conditions
of the plaintiff’s employment.” Id. at 74-75 (emphasis added, citation omitted). Here, the evidence
Maribel relies upon founders at the first beachhead—extensive supervision. As discussed, the
limited number of interactions over the course of 13 months does not demonstrate extensive
supervision. Notably, apart from asserting that Cinemark provided instructions as to “minute

25

details” of work (ECF No. 173 at 1), plaintiffs do not provide a reasoned argument otherwise (see
generally id.).
Even if somehow Cinemark did minutely control plaintiffs’ work details, plaintiffs also fail
to explain how that resulted in effective control of the terms and conditions of their employment, at
least when that phrase is understood in light of the Second Circuit’s later explanation that
“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.” See Zheng, 355 F.3d at 75. Here, many of the alleged instances of
control relate to Cinemark employees ensuring that Simply Right (by way of its workers) provided
the services that it had contracted to provide. (See ECF No. 124 at § 2.2.) As such, rather than
resulting in effective control of plaintiffs’ employment, Cinemark was ensuring effective compliance
with the JSA.
For Clara, the Magistrate Judge relied upon Clara’s testimony that a Cinemark manager was
“more likely” to solve her problems, a Cinemark manager instructed her to dust the high area in
bathrooms, clean ice-melting salt, clean lint stuck in the corners of bathrooms, and clean trash cans
to the bottom, and a Cinemark manager complained about a chemical in the toilets. (ECF No. 168
at 23-24, 26.) Clara worked at a Cinemark theater for two years. The Court simply does not find
these interactions between Cinemark employees and Clara over that period of time to give rise to a
joint employment relationship. Even if the Court were to again consider the arguably more
expansive set of facts alleged in plaintiffs’ response statement of facts (see ECF No. 148-1 at ¶ 69),
they do not overcome the need for extensive supervision and a resulting effect on the control of

26

Clara’s terms and conditions of employment. This is especially so where, as here, the vast majority
of the alleged interactions relate to ensuring satisfaction of the JSA.
For Jose Luis, the Magistrate Judge relied upon: Cinemark managers identifying problem
areas that needed more attention; a Cinemark manager instructing Jose Luis to move video games,
where to move them, and chemicals to use to avoid damaging the games; Cinemark managers telling
Jose Luis what areas to concentrate upon during inspections; a Cinemark manager telling Jose Luis
to clean the cup area; Jose Luis being told to move the popcorn machines; when Jose Luis was
visiting the theater with his family, him being told to fold the carpets before he finished his work;
and Jose Luis testifying that he had more contact with Cinemark managers. (ECF No. 168 at 23, 26.)
The facts with respect to Jose Luis are the closest of the non-stayed plaintiffs, at least with
respect to the degree of control over Jose Luis’ work. In a vacuum, there are instances of specific
direction, and, allegedly, instructions to perform acts that the JSA may or may not have required.
However, to the extent that this can be described as “begin[ning] to assign specific tasks,” as the
Magistrate Judge appears to have found (see ECF No. 168 at 27-28), the Court does not believe that
it demonstrates sufficient indicia of control for purposes of joint employment in the overall context
of Jose Luis’ work.
Specifically, the context of Jose Luis having worked at a Cinemark theater for two years. At
any point during that time period, Cinemark could have begun to assign tasks to Jose Luis, and
apparently, its employees did. Perhaps, if Cinemark had begun assigning tasks from the near get-go
of Jose Luis’ work, and continued assigning or renewing the assignment of tasks unabated from
thereon, the assignment of tasks could be considered a key factor in whether Cinemark was Jose
Luis’ joint employer. But that it not what the facts show here. The mere fact that some tasks were

27

assigned to Jose Luis during his two-year period of work at the Cinemark theater demonstrates no
more than that Jose Luis worked at the theater for a long time. In other words, the assignment of
tasks is purely a natural consequence of this lengthy period; it does not in this case demonstrate that
Cinemark had sufficient indicia of control of Jose Luis’ work. Put simply, all things with respect
to this analysis are contextual, and, here, the context of Jose Luis’ work is that he was assigned tasks
over a two-year period of working at a Cinemark theater. For purposes of this case, the Court does
not find that to be a sufficient degree of control or, on a wider plane, of joint employment to create
a genuine issue of material fact under the tests proposed by the parties.17
The Magistrate Judge’s consideration of other factors (see ECF No. 168 at 28-31), does not
change the Court’s analysis. If anything, those additional factors put Cinemark further away from
being a joint employer than closer. The only factor that the Magistrate Judge found weighed in favor
of joint employment was the fact that plaintiffs’ work was integral to Cinemark. (Id. at 29-30.) The
Court agrees with the Magistrate Judge that plaintiffs’ work was integral to Cinemark—a movie
theater needs to be clean for the theater to be usable. However, the Court does not find this factor
at all relevant to the joint employment analysis. As the Magistrate Judge indicated, this factor could
be implicated in most situations. (Id.) For example, Cinemark may call in a contractor to come and
fix a broken projection system or screen in one of its theaters. The screen or projection system is

17

The Court notes that its analysis may very well have been different under Salinas, which, inter
alia, looks at whether the putative joint employers allocate the power to direct such things as controlling a
worker. See Salinas, 848 F.3d at 141-142. Arguably, the JSA here allocates between Cinemark and Simply
Right the power to do a host of things with respect to individuals hired to clean in Cinemark’s theaters.
(See ECF No. 124 at ¶ I.) That, however, is not the issue before the Court today, nor will it be the issue
before the Court on any other day in this case, as, although Salinas was decided after the filing of plaintiffs’
response to Cinemark’s motion for summary judgment, plaintiffs could have easily argued that the Court
should have looked at the relationship between the putative joint employers. Instead, plaintiffs have chosen
to argue, and continue to do so, that the appropriate test should focus on the relationship between the
employer and the employee. (See ECF No. 173 at 15-16.) It is too late to turn back now.

28

undoubtedly integral to Cinemark, but that does not make Cinemark the contractor’s joint employer.
Put simply, there is no reason why work being integral is more likely to result in an employment
relationship, than the lack of one. Therefore, the Court places no weight on this factor.
Other than the integral nature of plaintiffs’ work, none of the additional factors weighed in
their favor, and the Magistrate Judge found that two weighed against them. (ECF No. 168 at 28-31.)
Although plaintiffs appear to re-argue certain of those factors in their response to Cinemark’s
objections (see ECF No. 173 at 17-18), as noted supra, plaintiffs have not raised these arguments
as objections, and, even if they did, they would be untimely. Therefore, the Court considers the
Magistrate Judge’s findings with respect to these factors to be undisputed, and does not disturb them.
Adding those factors to the totality of the other circumstances found herein and, to the extent
undisturbed, in the R&R, the Court is left with the firm impression that Cinemark was not the joint
employer of any of the non-stayed plaintiffs. Although, as explained, Cinemark had some control
over plaintiffs’ job duties, and (to varying degrees) plaintiffs interacted with Cinemark employees
concerning their work, the Court finds that insufficient facts support a finding of joint employment
under the totality of the circumstances in this case.
VI.

Conclusion
For the reasons set forth herein, the Court:
(1)

SUSTAINS IN PART Cinemark’s objection to the R&R (ECF No. 169);

(2)

ADOPTS IN PART and REJECTS IN PART the R&R (ECF No. 168);

(3)

GRANTS Cinemark’s motion for summary judgment (ECF No. 123), with respect
to the individual claims of the non-stayed plaintiffs against Cinemark; and

(4)

DENIES IN PART and DENIES WITHOUT PREJUDICE IN PART plaintiffs’
motion for partial summary judgment (ECF No. 134).
29

SO ORDERED.
DATED this 22nd day of May, 2017.

BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

30