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Low v. Tian Yu Inc.

United States District Court, S.D. New York

March 11, 2015

LAI YOONG LOW, et al., Plaintiffs,
v.
TIAN YU INC., et al., Defendants.

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I. Introduction

Plaintiffs Ji Hui Zhang, Bin Xie and Lai Yoong Low commenced this action against their former employer, Tian Yu Inc. d/b/a Aki Sushi Restaurant Inc. ("Aki Sushi") and its principal Zhao Yu Chen, to recover for alleged wage and hour violations under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and New York Labor Law ("Labor Law"), N.Y. Lab. Law §§ 190 et seq., §§ 650 et seq. (Amended Complaint, dated December 18, 2012 (Docket Item 14) ("Am. Compl.") ¶¶ 1-2). By notice of motion dated May 12, 2014 (Docket Item 35), defendants move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking to limit the periods for which each plaintiff can recover damages. The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

For the following reasons, defendants' motion for partial summary judgment is granted in part and denied in part.

II. Facts

This action arises out of plaintiffs' employment at Aki Sushi, a sushi restaurant in New York City (Declaration of Zhao Yu Chen, dated May 12, 2014 (Docket Item 37) ("Chen Decl.") ¶ 1). Zhang and Xie were employed as deliverymen and Low was employed as a waitress (Chen Decl. ¶¶ 2-4). Plaintiffs all assert claims under the FLSA and the Labor Law for a series of alleged violations, including failure to pay minimum wage, failure to pay overtime, failure to pay spread of hours, failure to reimburse for the purchase and maintenance of equipment, failure to reimburse for unauthorized deductions and failure to comply with the FLSA and Labor Law posting requirements (Am. Compl. ¶¶ 1-2, 19). Plaintiffs also seek liquidated damages and attorneys fees (Am. Compl. ¶¶ 1-2).

In their Amended Complaint, plaintiffs allege that Zhang was employed at Aki Sushi from July 1, 2008 through September 30, 2010, that Low was employed from September 12, 2009 through May 15, 2010 and that Xie was employed from July 1, 2008 through September 30, 2010 (Am. Compl. ¶¶ 11-13).

A. Zhang

Zhang stated that he worked at Aki Sushi from July 1, 2008 through September 30, 2010 (Affidavit of Ji Hui Zhang, dated June 4, 2014 ("Zhang Aff."), annexed as Ex. A to Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment, dated June 6, 2014 (Docket Item 43) ("Pls.' Mem."), ¶ 3). Zhang testified that Low and Xie both started working at Aki Sushi after he did (Deposition of Ji Hui Zhang ("Zhang Dep."), annexed as Ex. E to Defendants' Memorandum of Law in Support of Motion for Partial Summary Judgment, dated May 12, 2014 (Docket Item 36) ("Defs.' Mem."), at 65). Zhang did not remember when Low left (Zhang Dep., annexed as Ex. E to Defs.' Mem., at 65). Zhang testified that he continued to work at Aki Sushi after Xie left (Zhang Dep., annexed as Ex. E to Defs.' Mem., at 65).

In 2010, the United States Department of Labor ("DOL") conducted an investigation of Aki Sushi regarding possible wage and hour violations (Chen. Decl., annexed to Defs.' Mem., ¶ 5). The DOL found that Aki Sushi owed Zhang $1, 083.99 for the period from February 16, 2008 through February 20, 2010 (DOL Summary of Unpaid Wages, annexed as Ex. B to Defs.' Mem.; Chen. Decl., annexed to Defs.' Mem., ¶¶ 9-10). Aki Sushi issued a check to Zhang in June 2010 for the amount of $1, 083.99 (Check, annexed as Ex. D to Defs.' Mem.; Chen Decl. ¶ 13). On August 31, 2010, Zhang signed a DOL Receipt for Payment of Lost or Denied Wages, Employment Benefits, or Other Compensation ("WH-58") (WH-58, annexed as Ex. D to Pls.' Mem.). The WH-58 purported to release all claims under the FLSA that Zhang might have against Aki Sushi for the period from February 16, 2008 through March 1, 2010 (WH-58, annexed as Ex. D to Pls.' Mem.). The WH-58 form contained the following language:

NOTICE TO EMPLOYEE UNDER THE FAIR LABOR STANDARDS ACT - Your acceptance of back wages due under the Fair Labor Standards Act means that you have given up any right you may have to bring suit for back wages under Section 16(b) of that Act. Section 16(b) provides that an employee may bring suit on his/her own behalf for unpaid minimum wages and/or overtime compensation and an equal amount as liquidated damages, plus attorneys' fees and court costs. The statute of limitations for Fair Labor Stadards Act suits require that a suit for unpaid minimum wages and/or overtime compensation must be filed within 2 years of a violation of the Act, except that a suit for a willful violation must be filed within 3 years of the violation. Do not sign this receipt unless you actually have received payment of all back wages due

(WH-58, annexed as Ex. D to Pls.' Mem.).

In his opposition to defendants' motion, Zhang states that, on the day before the DOL investigation, Chen spoke with each employee individually because he "wanted us to give testimony as to what he advised us [to] say and told us how to talk with the investigator from the [DOL]" (Zhang Aff., annexed as Ex. A to Pls.' Mem., ¶ 5). Zhang also states that Chen observed the investigation and that Zhang "and the other employees understood that if we did not say to the investigator whatever the [b]oss wanted us to say that day, the employee [sic] would be fired" (Zhang Aff., annexed as Ex. A to Pls.' Mem., ¶ 6). Zhang further states that "Chen wanted us to deposit the check to our bank account and then refund all of the money to him" (Zhang Aff., annexed as Ex. A to Pls.' Mem., ¶ 7). Chen denies that he ever made any of these statements (Reply Declaration of Zhao Yu Chen, dated June 16, 2014 (Docket Item 40) ¶¶ 2-5).

After the investigation, Zhang went to the DOL and picked up his check (Zhang Aff., annexed as Ex. A to Pls.' Mem., ¶ 7). Zhang states that he never deposited the check and instead attempted to return it to Chen directly, but Chen refused to accept it (Zhang Aff., annexed as Ex. A to Pls.' Mem., ¶ 8).

B. Xie

Chen states that Xie worked at Aki Sushi from February 2010 through April 2010 (Chen. Decl. ¶¶ 16-17). At his deposition, Xie testified that he worked for Aki Sushi for one month in the spring of 2009 and then again from July 2009 through April 2010 (Deposition of Bin Xie ("Xie Dep."), annexed as Ex. E to Pls.' Mem., at 10-11; accord Affidavit of Bin Xie, dated June 4, 2014, annexed as Ex. B to Pls.' Mem., ¶ 4).

According to Xie, Zhang was working at Aki Sushi throughout the time he was there (Xie Dep., annexed as Ex. E to Pls.' Mem., at 11). Xie also testified that he was paid $900 as a monthly base salary and usually made an additional $1, 500 in tips each month (Xie Dep., annexed as Ex. G to Defs.' Mem., at 38). In his interrogatory responses, Xie stated that he was paid $1, 100 as a monthly base salary and earned another $1, 800 per month in tips (Plaintiff Bin Xie's Responses to Defendants' First Set of Interrogatories, dated July 31, 2013, annexed as Ex. I to Defs.' Mem., ¶ 7). Xie states that he signed documents when he received his bi-weekly paychecks, but that after signing for his paychecks he would return about one or two hundred dollars to his employer, which he was told was for taxes (Xie Dep., annexed as Ex. G to Defs.' Mem., at 47).

When Xie filed for unemployment benefits, Aki Sushi reported to the New York State Department of Labor ("NYS DOL") that it had employed Xie from February 1, 2010 through April 25, 2010 (Request for Employment and Wage Data ("Data Request"), annexed as Ex. F to Pls.' Mem.). The form Aki Sushi submitted instructed the employer to "[e]nter the TOTAL GROSS WAGES PAID in each quarter" and, "[i]f the employee did not work for you, [to] write NOT OUR EMPLOYEE'" for that quarter (Data Request, annexed as Ex. F to Pls.' Mem.). Aki Sushi reported paying Xie $2, 265.40 for the quarter from April 1, 2010 through June 30, 2010 and $5, 339.60 for the quarter from January 1, 2010 through March 31, 2010 (Data Request, annexed as Ex. F to Pls.' Mem.). Aki Sushi did not report making any other payments to Xie, but Aki Sushi did not mark Xie "not our employee" for any quarter (Data Request, annexed as Ex. F to Pls.' Mem.). Xie's 2010 tax return shows a total income of $7, 605 for that year (Bin Xie's Tax Return for 2010, annexed as Ex. J to Defs.' Mem.).

C. Low

While Chen states that Low worked at Aki Sushi for five months, from January 2010 through May 2010 (Chen Decl. ¶ 20), Low testified that she worked at Aki Sushi from either September or October of 2009 through May 2010 (Deposition of Lai Yoong Low ("Low Dep."), annexed as Ex. G to Pls.' Mem., at 20-21; see also Affidavit of Lai Yoong Low, dated June 4, 2014 ("Low Aff."), annexed as Ex. C to Pls.' Mem., ¶ 3 (stating that she worked at Aki Sushi from September 2009 through May 2010)). Low stated that she worked at Aki Sushi for about eight months and that Zhang worked there the entire time she worked there (Low Dep., annexed as Ex. F to Defs.' Mem., at 9). Low further testified that she was working at Aki Sushi when the DOL investigation occurred and remembers her boss telling the employees to leave the restaurant when the DOL was there (Low Dep., annexed as Ex. G to Pls.' Mem., at 21). Low also stated that Xie started working at Aki Sushi after she was already working there (Low Dep., annexed as Ex. F to Defs.' Mem., at 24).

In her affidavit, Low states that before commencing employment at Aki Sushi, she worked at Toyo of Japan Restaurant in Mamaroneck, New York, through March 2009 (Low Aff., annexed as Ex. C to Pls.' Mem., ¶ 4). Low also stated that during the time she worked at Aki Sushi in 2009, she did not receive a W-2 form (Low Aff., annexed as Ex. C to Pls.' Mem., ¶ 5). Low's 2009 tax return shows an income of $5, 040, and the only employer that ...


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