Franco et al v. Roman's Commercial Cleaning and Property Maintenance, Inc. et al

Filing 44

MEMORANDUM AND ORDER granting 42 Motion for Summary Judgment as to Defendants Roman's Commercial Cleaning and Property Maintenance, Inc. and Roman Drozdowski. So Ordered by Chief Judge William E. Smith on 5/31/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

MAXIMILIANO FRANCO; BAUDILIO
NAVARRO; and WALTER SALAZAR,
Plaintiffs,
v.
ROMAN’S COMMERCIAL CLEANING AND
PROPERTY MAINTENANCE, INC.; EAGLE
JANITORIAL SERVICES CORP.; ROMAN
DROZDOWSKI; LUCIANO A. DESOUZA;
and DAVI DESOUZA (a.k.a. DAVID
SOUZA or DAVID DESOUZA),
Defendants.

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C.A. No. 16-225 WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Roman’s Commercial Cleaning
and Property Maintenance, Inc. (“Roman’s”), and Roman Drozdowski
(“Drozdowski”) (collectively “Defendants”) 1 Motion for Summary
Judgment (“Motion”) (ECF No. 42).
(“Franco”),

Baudilio

Navarro

Plaintiffs Maximiliano Franco

(“Navarro”),

and

Walter

Salazar

(“Salazar”) (collectively “Plaintiffs”) assert claims under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and

1

On September 29, 2016, the Clerk of Court entered default
against Defendants Eagle Janitorial Services Corp. (“Eagle”),
Luciano DeSouza, and Davi DeSouza (a.k.a. David Souza or David
DeSouza) (“Davi Souza”).
Since that time, however, Plaintiffs
have taken no further steps to obtain default judgment against
these defendants.

the Rhode Island Minimum Wage Act (“RIMWA”), R.I. Gen. Laws § 2812-1, et seq., for Defendants’ failure to pay Plaintiffs minimum
wage

and

overtime

pay.

(See

generally

Compl.,

ECF

No.

1.)

Defendants’ Motion concerns whether Roman’s constitutes a “joint
employer” for purposes of Plaintiffs’ action.

(See Defs.’ Mem. of

L. in Supp. of its Mot. for Summ. J. (“Defs.’ Mem.”) 2–3, ECF No.
42-1.)

For the reasons set forth below, the answer is no, and

Defendants’ Motion is therefore GRANTED.
I.

Background 2
Roman’s, owned by Defendant Drozdowski, is a cleaning company

in West Warwick, Rhode Island, which has been in the commercial
cleaning business for approximately thirty years.

(Drozdowski

Dep. 9:8–9, 15:3–7, 14–16, 16:9–14, 15–22, 17:5–14, 23:23–24:2,
ECF No. 42-12.) Roman contracts with customers to clean commercial
properties.

(Id. at 21:9–17.)

Rather than clean its customers’

properties itself, however, Roman’s subcontracts the cleaning work
out to other cleaning companies.

(Id. at 21:17–19.)

Roman’s,

meanwhile, employs only a small office staff and two supervisors,
Andrzej Skura and Marian Boda, who liaise with the subcontractors.

2

The Court recounts the facts in the light most favorable
to, and drawing all inferences for, Plaintiffs, as the nonmovants.
See Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 396 (1st
Cir. 2012).
2

(Id. at 21:20–22:13, 30:4–31:8; Boda Dep. 6:11–15, ECF No. 42-9;
Skura Dep. 8:19–9:1, ECF No. 42-10.)
Eagle was one such cleaning company to which Roman’s farmed
out cleaning work.

(Drozdowski Dep. 66:3–6.)

Eagle, incorporated

in July 2015, 3 was located in Revere, Massachusetts, and owned by
Davi Souza.

(See Company Resume & Portfolio 1, ECF No. 42-3;

Business Entity Summ. 1, ECF No. 43-8.)

Eagle contracted with

Roman’s to clean Stop & Shop stores in Bristol and Middletown,
Rhode Island; Savers stores in Woonsocket, Rhode Island, and in
Saugus,

Danvers,

Average

Joe’s

Massachusetts.

and

Framingham,

restaurants

in

Massachusetts;

Waltham,

Acton,

and
and

Not

Your

Westboro,

(Master Cleaning Services Agreement ¶¶ 1–2(A), ECF

No. 42-4; Statement of Services 1, ECF No. 42-5.)

The contract

directed that Roman’s pay Eagle for cleaning services at set rates,
usually weekly.

(Master Cleaning Services Agreement ¶ 3(B);

Statement of Services 1.)
Davi Souza hired Plaintiffs to clean some of the stores that
Eagle

contracted

to

clean

for

Roman’s.

(See,

e.g.,

Franco,

Navarro, Salazar Deps. (“Pls.’ Deps.”) 7:16–8:1, 10:13–14, 22:5–
6, ECF No. 42-11; see also Pls.’ Statement of Disputed Facts
(“Pls.’ SDF”) ¶ 7, ECF No. 43-1.)

3

Franco and Navarro aver that

Though, when applying to be a subcontractor for Roman’s,
Davi Souza represented that Eagle had been in the cleaning business
for eight years. (Company Resume & Portfolio 1.)
3

they each “worked as a Cleaner at the Stop & Shop grocery store in
Bristol and Newport, Rhode Island from August 2015 until December
24, 2015.”

(Franco Aff. ¶ 3, ECF No. 43-7; Navarro Aff. ¶ 3, ECF

No. 43-7.)

Salazar states that he “worked as a Cleaner at Stop &

Shop grocery stores in Attleboro, Massachusetts and Bristol and
Newport,

Rhode

Woonsocket,

Island

Rhode

as

Island

well
and

as

Framingham,

January 2015 until December 30, 2015.”
43-7.)

Savers

thrift

stores

Massachusetts

in

from

(Salazar Aff. ¶ 3, ECF No.

Plaintiffs each attest that, during these periods, they

believed that they worked for Roman’s.
Navarro Aff. ¶ 8; Salazar Aff. ¶ 11.)

(See Franco Aff. ¶ 8;

Plaintiffs stopped working

at these stores because they were only compensated partially for
their services 4 by Davi Souza, whom Roman’s paid.

(See Franco Aff.

¶¶ 4–7; Navarro Aff. ¶¶ 4–7; Salazar Aff. ¶¶ 4–10; Pls.’ Deps.
6:16–7:5, 13–15, 22:17–20; Pls.’ SDF ¶¶ 8, 11–12.)
Around the same time that Plaintiffs stopped working, Roman’s
lost the contracts to clean Stop & Shop and Savers stores because
of the poor quality of Eagle’s cleaning and the failure of Eagle’s

4

Franco and Navarro claim that they were each hired to work
for $1,000 every two weeks, worked approximately forty-two hours
per week, and were paid only $500 each for all of their work from
September 2015 to December 24, 2015. (Franco Aff. ¶¶ 5-7; Navarro
Aff. ¶¶ 5–7.)
Salazar declares that he was hired to work for
$1,400 every two weeks, worked approximately fifty-two hours per
week, and was not paid for his overtime work between January 2015
and November 26, 2015 and for all work performed between November
27, and December 30, 2015. (Salazar Aff. ¶¶ 7-10.)
4

employees to report to the stores when scheduled, which Eagle
failed to remedy after frequent complaints.

(See, e.g., Boda Dep.

14:20–16:6; Skura Dep. 33:22–35:21; Drozdowski Dep. 89:8–91:19,
126:18–128:15; see generally Ex. J to Pls.’ Obj. to Defs.’ Mot.
for Summ. J., ECF No. 43-12 (no-show emails); Ex. K to Pls.’ Obj.
to Defs’ Mot. for Summ. J., ECF No. 43-13 (complaint emails).)
Soon after, in May 2016, Eagle dissolved its business.
Entity Summ. 1.)

(Business

Plaintiffs commenced the present action only

days before Eagle’s dissolution.
II.

Legal Standard
Summary Judgment requires the Court to “tak[e] all the facts

in the light most flattering to the nonmoving party, resolv[e] any
evidentiary

conflicts

in

that

party's

favor,

reasonable inferences therefrom to his behoof.”

and

draw[]

all

Gomez v. Stop &

Shop Supermarket Co., 670 F.3d 395, 396 (1st Cir. 2012) (citing
Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011)).

“Summary

judgment is appropriate when ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’”

Packgen v. BP Expl., Inc., 754 F.3d 61, 66 (1st

Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).

In this context,

however, the Court “will not ‘draw unreasonable inferences or
credit bald assertions, empty conclusions, rank conjecture, or
vitriolic invective.’”

Garmon v. Nat’l R.R. Passenger Corp., 844

5

F.3d 307, 312 (1st Cir. 2016) (quoting Pina v. Children’s Place,
740 F.3d 785, 795 (1st Cir. 2014)).
III.

Discussion
Under the FLSA, an “employee” is defined as “any individual

employed by an employer.”

29 U.S.C. § 203(e)(1).

An “employer”

is defined as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.”

Id. § 203(d).

Furthermore, “employ” is defined as “to suffer or permit to work.”
Id. § 203(g).

These definitions are to be construed broadly.

See

Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st
Cir. 1998).

Moreover, the FLSA “contemplates several simultaneous

employers, each responsible for compliance with the Act.”

Id.

(citations omitted). 5
“[T]o

determine

whether

an

employment

relationship

exists . . . courts look not to the common law conceptions of that
relationship, but rather to the ‘economic reality’ of the totality
of the circumstances bearing on whether the putative employee is
economically dependent on the alleged employer.”

Id. (citing

Aimable v. Long & Scott Farms, 20 F.3d 434, 439 (11th Cir. 1994)).
Four factors have emerged to test the “economic reality” of the
circumstances:

“whether the alleged employer (1) had the power to

5

“Rhode Island law governing . . . wages is similar to the
FLSA.” Harbor Cruises LLC v. R.I. Dep’t of Labor, No. P.C. 055076, 2008 WL 4961656, at *3 (R.I. Super. Ct. Nov. 10, 2008). The
Court, therefore, does not separately address the RIMWA claim.
6

hire and fire the employees; (2) supervised and controlled employee
work schedules or conditions of employment; (3) determined the
rate and method of payment; and (4) maintained employment records.”
Id. (citing Bonnette v. Cal. Health & Welfare Agency, 704 F.2d
1465, 1470 (9th Cir. 1983)).

“The first two . . . factors address

the extent of a putative employer’s control over the nature and
structure of the working relationship[,]” while the final two
“address the extent of a putative employer’s control over the
economic aspects of the working relationship[.]”

Id. at 675–76.

However, “it is the totality of the circumstances, and not any one
factor, which determines whether a worker is the employee of a
particular alleged employer.”

Id. at 676.

A. Whether Roman’s Had the Power To Hire and Fire Plaintiffs
At the outset, the record shows, and Plaintiffs seemingly
concede that, neither Roman’s nor Drozdowski ever hired 6 or fired

6

Plaintiffs contend that Roman’s hired Salazar prior to
Eagle’s incorporation. (Pls.’ Mem. 14.) While Davi Souza hired
Salazar before Eagle was incorporated (see Pls.’ Deps. 21:21–22:6;
Salazar Aff. ¶ 3; Business Entity Summ. 1), Salazar’s own averments
conflict as to whether he was hired by, or was an employee of,
Roman’s before Eagle’s incorporation.
(Pls.’ Dep. 22:2 (“Yes.
[Davi Souza] called me, there was job with Roman.”); Salazar Aff.
¶ 11 (“I believe I worked for . . . Roman’s.”); id. ¶ 12 (“Davi
hired me to work for Roman’s.); id. ¶ 13 (“I believe that Davi
worked for Roman’s.”)). Even assuming arguendo that Plaintiffs’
suggestion is true, Plaintiff Salazar’s own belief that he was
hired prior to Eagle’s formation – a proposition that is
questionable at best based on the record – does not suffice to
create a triable issue on the critical inquiry of who had the power
to hire and fire Plaintiffs from Eagle. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a
7

Plaintiffs.

(Pls.’ Deps. 7:16–8:1, 10:13–14, 22:5–6; Drozdowski

Dep. 65:23–66:24 (testifying that he never hired Plaintiffs); (see
also Pls.’ Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. 14
(“Pls.’ Mem.”), ECF No. 43-2 (“[W]hile it may not be disputed that
Defendant Drozdowski did not, himself, personally and directly
hire or fire the three Plaintiffs . . . .”)).

Plaintiffs, however,

contend that the “relevant legal test” is whether “Roman’s actions,
in ‘the economic reality of the totality of the circumstances,’
amount to an exercise of indirect, joint authority with and through
[Davi Souza] over the Plaintiffs to initiate and terminate their
employment.”

(Pls.’ Mem. 14.)

Plaintiffs argue that this is so

because Eagle was not an independent economic entity, but instead
entirely relied on Roman’s for work and payment, which bestows
upon Roman’s – and not Eagle - the power to initiate and terminate
the employment relationship by Roman’s “ability to create and
sustain cleaning contracts” with its customers.

(Id. at 14–15.)

Plaintiffs’ only factual support for this economic dependence is
that Plaintiffs were not paid unless Salazar picked up the check

scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.”). And, in any event, the power
to hire and fire is but one factor to test the “economic reality”
of the totality of circumstances; a possible question of fact on
this factor alone is not enough to send this case to a jury.
8

from Roman’s to Eagle and delivered this check to Davi Souza. 7
(Id. at 15.)
Even assuming that Salazar had to pick up every check that
Roman’s wrote to Eagle for payment of Eagle’s services, and that
these

payments

were

Eagle’s

only

funding

source,

Eagle’s

dependence on Roman’s as its only income source says nothing about
Roman’s

authority

argument,

in

to

hire

essence,

or

goes

fire
to

Plaintiffs.

whether

Plaintiffs’

Plaintiffs

worked

“exclusively or predominately” for the putative joint employer,
which is one of six additional factors to determine joint-employer
status articulated by the Second Circuit in Zheng v. Liberty
Apparel Co., 355 F.3d 61, 75 (2d Cir. 2003). 8 This factor “weigh[s]
in favor of joint employment if a subcontractor worked solely for
a single client but had the ability to seek out other clients at
any time.”

Id. at 75 n.12.

However, the record lacks evidence,

and Plaintiffs point to no such facts, to support that Eagle worked

7

The record does not support that Plaintiffs were only paid
if Salazar first picked up the check. (See, e.g., Pls.’ SDF ¶ 11;
Pls.’ Deps. 6:16–7:5, 12:1–13:3, 22:17–20.) Moreover, it is not
apparent – nor do Plaintiffs explain – how the method of delivering
payment has any effect on Roman’s ability to hire or fire
Plaintiffs, or, as Plaintiffs argue, renders Eagle economically
dependent on Roman’s.
8

The Second Circuit in Zheng v. Liberty Apparel Co., 355
F.3d 61, 72 (2d Cir. 2003) derived these six additional factors
from Rutherford Food Corp. v. McComb, 331 U.S. 722, 724–25 (1947).
9

solely

for

Roman’s. 9

(See

Pls.’

Mem.

14–15.)

Accordingly,

Plaintiffs have not produced evidence that Roman’s or Drozdowski
could hire or fire Plaintiffs. 10
B.

Whether Roman’s Supervised and Controlled Plaintiffs’
Work Schedules or Employment Conditions

“[S]upervision and control is probative of an employment
relationship

only

when

the

oversight

demonstrates

effective

control over the schedule and conditions of employment.”

Jacobson

v. Comcast Corp., 740 F. Supp. 2d 683, 690 (D. Md. 2010) (citing
Rutherford,

331

U.S.

772).

Generally,

a

joint-employment

relationship requires the putative joint employer to control the
day-to-day aspects of the putative employee, but “[t]he nature of
the

control

distinguishes

employment

and

contractor

relationships[,]” even if there is a high level of control and
supervision.

See id. at 690–91; cf. Baystate, 163 F.3d at 676

9

Although it appears that the First Circuit has not adopted
the six additional Zheng factors, the Court discusses them to the
extent that they are referenced by the parties or are otherwise
useful to the Court’s analysis. However, reference to the Zheng
factors only bolsters the conclusion that summary judgment is
appropriate for Defendants.
10

Plaintiffs argue that Roman’s has the authority to fire
Plaintiffs because the Master Cleaning Services Agreement empowers
it to notify Eagle that a worker is unqualified, whom Eagle must
then remove from the job. (See Master Cleaning Services Agreement
¶ 2H.) However, such “deauthorization” of an Eagle employee is
not tantamount to Roman’s firing the employee from Eagle because
it does not prevent that “deauthorized” Eagle employee from working
for Eagle altogether. See Jean-Louis v. Metro. Cable Commc’ns,
Inc., 838 F. Supp. 2d 111, 124 (S.D.N.Y. 2011).
10

(“An employer does not need to look over his workers’ shoulders
every day in order to exercise control.” (quoting Brock v. Superior
Care, Inc., 840 F.2d 1054, 1060 (2d Cir. 1988)).

“[S]upervision

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.”

Jean-Louis, 838 F. Supp. 2d at 126

(quoting Zheng, 355 F.3d at 75).
Roman’s control and supervision of Plaintiffs consisted of
Roman’s receiving reports and complaints of when Eagle employees
arrived at and left the stores, or were absent from work, 11 and
when Eagle’s cleaning fell below the store’s standards.

(See,

e.g., Drozdowski Dep. 89:3–15, 106:5–20; Boda Dep. 19:12–21:6;
Skura Dep. 19:23–20:14, 24:17–25:6.)

These time reports and

customer complaints led Roman’s supervisors to follow-up with Davi
Souza (but never any of his employees) 12 to instruct him to correct

11

At the Stop & Shop stores, Plaintiffs were required to
call into an automated system upon their arrival and departure
from the stores; this system generated automatic email reports to
Roman’s detailing the times that Plaintiffs arrived and departed
the stores and/or if Plaintiffs were absent.
(See, e.g.,
Drozdowski Dep. 77:11–21, 79:3–21; Skura Dep. 17:22–18:5.)
Roman’s informed Eagle about this system. (Drozdowski Dep. 105:2–
13; Pls.’ Deps. 8:6–11.)
12

Navarro testified that he had contact with an unnamed
Roman’s supervisor, who was at the store to see that the job was
done correctly; he also testified that the supervisor said he would
look into what was going on with the checks after Navarro told him
that he was not getting paid by Davi Souza. (Pls.’ Deps. 14:10–
11

any deficiencies.

(See, e.g., Drozdowski Dep. 91:4–9, 93:12–14,

109:9–110:13; Boda Dep. 21:7–14; Skura Dep. 19:23–20:14, 23:9–15,
33:22–35:21.)

Roman’s, its supervisors, and Drozdowski never

dictated to Davi Souza or Plaintiffs what Plaintiffs’ schedule was
to be or how to perform the agreed-upon cleaning tasks.
Drozdowski

Dep.

87:16–89:2,

112:14–113:5;

18:5–19:11; Skura Dep. 13:3–23.)

Boda

Dep.

(See

13:19–22,

Even assuming that Roman’s

supervised and controlled Plaintiffs’ work schedules or employment
conditions to a high degree - a proposition unsupported by the
record - Roman’s supervision and control was entirely aimed at
quality assurance (see Drozdowski Dep. 154:21–155:1; Boda Dep.
12:13–13:8;

Skura

Dep.

9:12–11:6,

12:4–13:2),

which

is

substantively distinct from the control and supervision needed to
form an employer-employee relationship.

See Jean-Louis, 838 F.

Supp. 2d at 126; see also Jacobson, 740 F. Supp. 2d at 690–92;
Zampos v. W & E Commc’ns, Inc., 970 F. Supp. 2d 794, 804 (N.D.
Ill. 2013) (“Quality control and compliance-monitoring that stem

19, 15:5–6, 14–22.) It was also his testimony that the supervisor
spoke Spanish. (Id. at 15:5–6.) However, Andrzej Skura and Marian
Boda both testified that they neither had any contact with
Plaintiffs nor spoke Spanish. (Boda Dep. 21:11–14, 21:20–21; Skura
Dep. 23:9–15, 41:18–21.)
Assuming Navarro contacted a Roman’s
supervisor, the supervisor’s presence at the store appears
consistent with Roman’s supervisors’ routine, quality-control
store checks. (See Boda Dep. 10:18–11; Skura Dep. 10:24–11:5,11:4–
6, 12:10–14).
But such quality control supervision does not
establish Roman’s as Plaintiffs’ joint employer. See Jean-Louis,
838 F. Supp. 2d at 126.
12

from the nature of the business — that is, from the nature of the
goods or services being delivered — are qualitatively different
from control that stems from the nature of the relationship between
the employees and the putative employer.” (quoting Grenawalt v. AT
& T Mobility, LLC, 937 F. Supp. 2d 438, 450–51 (S.D.N.Y. 2013))).
At bottom, Plaintiffs have not produced sufficient evidence to
demonstrate

that

Roman’s

exercised

the

requisite

control

and

supervision over them to establish an employment relationship with
Roman’s.
C.

Whether Roman’s Determined the Rate and Method of Payment

It is undisputed that Roman’s paid Eagle a set amount pursuant
to their Master Cleaning Services Agreement.
133:9–15,

134:11–12;

Boda

Dep.

(See Drozdowski Dep.

9:12–10:12;

Master

Services Agreement ¶ 3(B); Statement of Services 1.)

Cleaning

It is also

undisputed that Davi Souza paid Plaintiffs. (Pls.’ SDF ¶ 11; Pls.’
Deps.

6:16–7:5,

12:1–13:3,

22:17–20).

Further,

there

is

no

evidence that Roman’s or Drozdowski paid Plaintiffs or dictated
how Eagle should pay Plaintiffs.

(See Drozdowski Dep. 151:18–

152:4 (stating that he never told Davi Souza about Davi Souza’s
responsibility to pay Plaintiffs’ wages).)

Plaintiffs’ emphasis

that Roman’s paid Eagle a set sum, with nothing more to demonstrate
that Roman’s controlled Plaintiffs pay, suggests nothing more than
a typical, contractor-subcontractor relationship.

See Jacobson,

740 F. Supp. 2d at 692 (“An employee’s income, received from its
13

direct employer, will always be ‘determine[d] and influence[d]’ by
what a contractor decides to pay the direct employer for services
rendered by the employee.” (citing Tafalla v. All Fla. Dialysis
Servs., Inc., No. 07–80396–CIV, 2009 WL 151159, at *7 (S.D. Fl.
Jan. 21, 2009)); (Pls.’ Mem. 18.).
produced

no

evidence

to

show

that

Plaintiffs have otherwise
Roman’s

or

Drozdowski

had

authority over the rate and method of Plaintiffs’ payment.
D.

Whether Roman’s Maintained Employment Records

The record makes clear that Roman’s maintained no employment
records, such as “personnel files . . ., time sheets, pay stubs,
or government employment forms[,]” for the individual Plaintiffs.
Jean-Louis, 838 F. Supp. 2d at 130.

The only records Roman’s

maintained, albeit on a temporary basis, were quality-of-work
reports, customer complaints to Roman’s about the quality of
Eagle’s cleaning and the tardiness or absence of employees, and
the automatically generated emails from the call-in, timekeeping
service at Stop & Shop stores that recorded Eagle employees’
absences and time spent at the stores. (See Drozdowski Dep. 92:10–
15; Boda Dep. 8:12–9:11, 16:8–24; Skura Dep. 14:19–24.)

These

records merely demonstrate that Roman’s maintained records for
quality-control purposes – a type of recordkeeping that does not
suffice to show that Roman’s controlled Plaintiffs’ employment.
See Jacobson, 740 F. Supp. 2d at 692 (“Plaintiffs have presented
no evidence to indicate that the maintenance of this type of
14

information

is

used

to

control

a

technician’s

day

to

day

employment, or that [the putative joint employer] retains records
for any purpose beyond quality control.”).

The record is bereft

of other evidence to suggest that Roman’s maintained employment
records for Plaintiffs sufficient to suggest control over them.
E.

Whether There Are Additional Factors for Consideration

The only other Zheng factor that this Court considers (because
both parties discuss it, (see Pls.’ Mem. 2, 9; Defs.’ Mem. 5)),
relates to equipment, i.e., “whether a putative joint employer’s
. . . equipment [is] used by its putative joint employees.”
355 F.3d at 72.

Zheng,

This factor may be “relevant because the shared

use of . . . equipment may support the inference that a putative
joint employer has functional control over the plaintiffs’ work.”
Zheng, 355 F.3d at 72.

While the record supports the inference

that Roman’s owned some equipment at the time that Plaintiffs had
cleaned the stores of Roman’s customers (see Ex. M to Pls.’ Opp.
to Defs.’ Mot. for Summ. J., ECF No. 43-15), the evidence shows
that

Eagle

used

its

own

equipment

at

the

job

sites.

(See

Drozdowski Dep. 80:7–9, 105:17–21, 106:3–4; Skura Dep. 21:12–13,
28:6–29:3; Ex. L to Pls.’ Opp. to Defs.’ Mot. for Summ. J. 5, ECF
No. 43-14.)

Plaintiffs have not cited any evidence that they used

Roman’s equipment to clean.

15

F.

Whether the Economic Reality of the Totality of the
Circumstances Renders Roman’s Plaintiffs’ Employer

In the end, Plaintiffs have not set forth sufficient evidence
to defeat Defendants’ Motion, either under the First Circuit’s
four-factor

Baystate

test,

or

the

additional

factors

deemed

relevant by other courts, to conclude that Roman’s is Plaintiffs’
joint-employer.

Instead, Plaintiffs simply supply “unsupported

speculation” and “conclusory allegations” to propose that the
“economic reality” of the totality of the circumstances raises a
genuine issue of material fact.
does not.
rescues

See Garmon, 844 F.3d at 313.

It

And no inference this Court could draw from this record

Plaintiffs

from

the

conclusion

that

Roman’s

is

not

Plaintiffs’ joint-employer within the meaning of the FLSA or RIMWA.
See Gomez, 670 F.3d at 396.
IV.

Conclusion
For the above reasons, Defendants’ Motion is GRANTED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: May 31, 2018

16