United States District Court, D. Rhode Island
MAXIMILIANO FRANCO; BAUDILIO NAVARRO; and WALTER SALAZAR, Plaintiffs,
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.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
the Court is Defendants' Roman's Commercial Cleaning
and Property Maintenance, Inc. (“Roman's”),
and Roman Drozdowski (“Drozdowski”) (collectively
“Defendants”) Motion for Summary Judgment
(“Motion”) (ECF No. 42). Plaintiffs Maximiliano
Franco (“Franco”), Baudilio Navarro
(“Navarro”), and Walter Salazar
“Plaintiffs”) assert claims under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., and the Rhode Island Minimum Wage Act
(“RIMWA”), R.I. Gen. Laws § 28-12-1, 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.
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. (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.)
was one such cleaning company to which Roman's farmed out
cleaning work. (Drozdowski Dep. 66:3-6.) Eagle, incorporated
in July 2015,  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,
and Framingham, Massachusetts; and Not Your Average Joe's
restaurants in Waltham, Acton, and Westboro, Massachusetts.
(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.)
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.) Franco
and Navarro aver that 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 Island as well
as Savers thrift stores in Woonsocket, Rhode Island and
Framingham, Massachusetts from January 2015 until December
30, 2015.” (Salazar Aff. ¶ 3, ECF No. 43-7.)
Plaintiffs each attest that, during these periods, they
believed that they worked for Roman's. (See
Franco Aff. ¶ 8; Navarro Aff. ¶ 8; Salazar Aff.
¶ 11.) Plaintiffs stopped working at these stores
because they were only compensated partially for their
services 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 ¶¶
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 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. (Business Entity Summ. 1.) Plaintiffs commenced
the present action only days before Eagle's dissolution.
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, and
draw all reasonable inferences therefrom to his
behoof.” 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 F.3d 307, 312 (1st
Cir. 2016) (quoting Pina v. Children's Place,
740 F.3d 785, 795 (1st Cir. 2014)).
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.
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 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.
Whether Roman's Had the Power To Hire and Fire Plaintiffs
outset, the record shows, and Plaintiffs seemingly concede
that, neither Roman's nor Drozdowski ever
hired or fired 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 ...