United States District Court, E.D. New York
LAW, PLLC Attorneys for the Plaintiff BY: Kibum Byun, Esq.,
KERVENG TUNG, P.C. Attorneys for the Defendants BY: Song
Chen, Esq., of Counsel SPATT, District Judge.
MEMORANDUM OF DECISION AND ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE.
plaintiff Mengru Davis (the “Plaintiff) commenced this
lawsuit against the defendants Ching Yi Cheng (or “Ms.
Cheng”), Terence Cheng, Hang Hsin Cheng, Wei Hsin
Cheng, Tai Hsin Cheng and Weh-Hsin Cheng (together, the
“Defendants”), for alleged violation of the Fair
Labor Standards Act (“FLSA”), and the New York
Labor Law (“NYLL”), arising from alleged unlawful
employment policies and practices by the Defendants. The
gravamen of the complaint is that the Defendants failed to
pay the Plaintiff overtime compensation for hours worked in
addition to forty hours per work week and for other
violations of the applicable statutes.
the Court notes that in the title of this case, the Plaintiff
has named as defendants Wei Hsin Cheng, Tai Hsin Chen and
Weh-Hsin Cheng. During the trial, one of the defendants
called a witness Wei Hsin Cheng, a son of the defendant. Even
though neither party has referred to the person named three
times in the title of the complaint as Wei Hsin Cheng, Tai
Hsin Chen and Weh-Hsin Cheng, the Court infers that this is
the same person and not three separate individuals.
complaint requests recovery of: (1) unpaid minimum wages; (2)
unpaid overtime wages; (3) unpaid spread of hours payments;
(4) liquidated damages; (5) attorney's fees and costs;
and (6) pre-judgment and post-judgment interest.
case was tried before this Court on October 2, 2017, and was
completed in one day.
the Court's decision rendered following the non-jury
The Plaintiff's Case
Plaintiff testified that she started to work for the
defendant Ching Yi Cheng on December 5, 2013. She worked for
Ms. Cheng until February 8, 2016, a period of more than
twenty-six months. She typically worked from 5:00 p.m. at
night to 8:00 a.m. the following day. When asked what kind of
work she did for Ms. Cheng, the Plaintiff testified that she
heated food for her in addition to performing other duties
for Ms. Cheng.
Cheng was living in a “kind of condo, ” which was
her residence. When the Plaintiff first arrived at Ms.
Cheng's residence at 5:00 p.m., her first duty was to
“warm up the food.” Then the Plaintiff would
bring a bucket of hot water for Ms. Cheng “to place her
feet in the water.” (Tr. at 11). In her second year of
employment, the Plaintiff would massage her feet by hand
because Ms. Cheng had developed a red rash on her feet and
could not use the water. The Plaintiff typically massaged Ms.
Cheng's feet for about a half hour. Then either the
Plaintiff or her son would take the defendant downstairs for
her exercise. Asked to describe the exercise the defendant
performed, the Plaintiff stood up and waved both her arms,
“like the bird flying.” (Tr. at 13). Her
exercises extended for ten to twenty minutes.
her exercise, Ms. Cheng would sometimes, chat with her
friends. After the exercises, the Plaintiff would get the
mail and then assist Ms. Cheng upstairs “to go back
home.” (Tr. at 14). When they were upstairs, the
Plaintiff would turn on the television and the defendant
would watch a Korean movie television series. They typically
watched television from 9:00 p.m. to 11:00 p.m., a two hour
period. At 11:00 p.m., when she finished watching television,
Ms. Cheng washed her body by “rubbing her body”,
that took a period of a half hour to forty minutes. During
this washing-up period, the Plaintiff rubbed Ms. Cheng's
back. Then Ms. Cheng changed into her nightgown and, by 12:00
midnight was ready to go to sleep. After Ms. Cheng went to
sleep, the Plaintiff also went to a bed and went to sleep.
However, she was “also listening in case there was
something happen to her.” (Tr. at 17). The Plaintiff
was listening to determine “if she was in any
danger.” (Tr. at 17). There was one occasion when Ms.
Cheng got out of bed and sat down on the floor and was unable
to get up. The Plaintiff assisted her to get up and she
placed her back on the bed.
Cheng slept in the master bedroom and the Plaintiff slept in
the living room, which was next to the master bedroom. She
kept the door open between the master bedroom and the living
room so that “in case she was in danger, if something
happened to her.” (Tr. at 18).
Plaintiff was aware of Ms. Cheng's medical condition and
that she underwent heart surgery. When Ms. Cheng would awaken
at 7:00 a.m. in the morning, the Plaintiff massaged her
stomach and also massaged her legs and feet. The Plaintiff
demonstrated how she conducted this massage by waving her
hands in a circular manner. The Plaintiff testified that she
performed this massage on Ms. Cheng from 7:00 a.m. to 8:00
a.m., when she would leave work.
Plaintiff further testified that she received money from Ms.
Cheng while working for her. She received $800.00 dollars per
month for the first year and $900.00 dollars per month for
the second year. She was paid on the first day of each month
by cash from Ms. Cheng.
she was working for Ms. Cheng, no one recorded her
activities. Ms. Cheng “remembered it with her
brain.” (Tr. at 21). She received cash payments and no
paper was given to her. During the time the Plaintiff worked
for Ms. Cheng, she saw no documents or paper of any kind with
respect to her employment.
the Plaintiff testified during her direct examination that
during the time she worked for Ms. Cheng, she resided at
140-10 Franklin Avenue in Flushing, New York, the Court finds
that the Plaintiff lived at Ms. Cheng's apartment during
the course of her employment. During cross-examination, the
Plaintiff testified that she kept her clothes and shoes in
Ms. Cheng's apartment, (Tr. at 29), had her own bed,
(Id.), and that she leased the 140-10 Franklin
Avenue apartment to her son-in-law. (Tr. at 38-39).
Plaintiff testified that she worked for Ms. Cheng seven days
a week. During the time that the Plaintiff worked for Ms.
Cheng she saw the defendant's three sons every week or
two. On Sundays, she saw the defendant's number three
son. She could not name that son but saw him in the
courtroom. The son did not give her any
“direction” while she worked for Ms. Cheng. On
one occasion, the number three son said to her that “.
. . you are late for half an hour and I was afraid to leave.
If something happened to my mother, what should I do.”
(Tr. at 24).
every year, the Plaintiff cleaned the windows for Ms. Cheng.
the Plaintiff received her cash payments, they would be made
by the defendant Ching Yi Cheng.
cross-examination, the Plaintiff testified that her education
consisted of her attending junior high school in China. She
did receive training as a home attendant five years ago in
the United States for a period of one month in 2012. She also
learned “a little bit from the home healthcare
company.” (Tr. at 28). She has a home attendant
Cheng's apartment consisted of one bedroom and one living
room located at 4265 Kissena Boulevard, Apartment 406,
Flushing, New York. During nighttime, Ms. Cheng slept in her
bedroom and the Plaintiff slept in the living room. The
Plaintiff put her clothes and shoes in the defendant's
apartment. There was a bed in the living room in which she
slept. The Plaintiff brought four cushions to the
defendant's apartment. The Plaintiff received $20.00
dollars to clean the windows with a tip of another $20.00
dollars for a total of $40.00 dollars. Ms. Cheng also gave
the Plaintiff $20.00 dollars for combing her hair.
Plaintiff had worked for a company called ABI. She started
working for ABI seven years ago and left that job in 2014.
Her work schedule at ABI was sometimes four hours and
sometimes six hours a day. She worked for ABI sometimes in
the morning and sometimes in the afternoon. She worked from
11:00 a.m. to 3:00 p.m. After 2014, she did not have any
other daytime jobs.
Ms. Cheng who offered her the job and agreed to pay her
$800.00 dollars per month and asked her to come to her
apartment at 5:00 p.m. and leave at 8:00 a.m. The defendant
also had a domestic helper during the daytime.
Cheng went to dinner with her eldest son two times a week.
When Ms. Cheng went to dinner with her son, the Plaintiff
went to her son-in-law's small apartment at 140-10
Franklin Avenue, Flushing, New York, to take a rest. This
apartment was one block away from the defendant's
residence. The Plaintiff's husband's name is Xia Qun
Gao. She received the name Davis when she applied for
citizenship and she changed her name to Davis. She loves that
when Ms. Cheng was watching television, the Plaintiff went to
bed and was awakened by Ms. Cheng.
Cheng can dress herself and she groomed herself. The
Plaintiff would massage her head and her hair. For one month,
the Plaintiff massaged the defendant's head every day.
Ms. Cheng did not need anyone to feed her. However, she
heated up food for the defendant every day.
Plaintiff stated that the defendant had three children. She
never met the defendant's daughter.
redirect examination, the Plaintiff testified that she had
worked as a home aid attendant for other persons. Ms. Cheng
did not use a wheelchair when she went to dinner with her
children. However, she did use a wheelchair at other times.
After dinner with Ms. Cheng, the Plaintiff washed the dishes
and the chopsticks, every day. Even though Ms. Cheng went to
dinner with her son, she would always first eat at home,
seven days a week because the rice in the food at the
restaurant was not very clean and caused her discomfort. The
Plaintiff washed the dishes and chopsticks for Ms. Cheng
every day during the time she worked for her. After she
finished her work at 8:00 a.m., another home attendant would
arrive at 9:00 a.m.
re-cross examination, that Plaintiff testified that she
washed dishes for the defendant every day. Also, the
defendant's youngest son, Wei Hsin Cheng would take his
mother out to dinner as well. When the defendant went to
dinner with her sons, the Plaintiff waited for her in the
defendant Ching Yi Cheng was called to the stand as a witness
in the Plaintiff's case. The defendant testified, that
the Plaintiff worked for her approximately two years. She has
no records which would show the days of the Plaintiff's
employment with her. The Plaintiff worked for her from 5:00
pm until sometime after 7:00 in the morning. Again, the
defendant stated that she has no written documents or papers
with regard to the Plaintiff's work schedule. As to
compensation, the defendant stated that “she asked for
$800.” (Tr. at 55). They never discussed overtime.
defendant testified that in Court with her was her home
attendant, who works from 8:00 a.m. to 5:00 p.m. and is paid
by the government. The defendant had a nighttime shift for
her home aid, namely, the Plaintiff. The defendant testified
that “she work night shift and she accompany me to
sleep.” (Tr. at 56). The defendant had one home aid
attendant during the day, and she also had the Plaintiff for
the night shift between 5:00 p.m. and 7:00 a.m.
why she needed a nighttime home aid, the defendant responded:
“She would accompany me to sleep because I was afraid.
I was afraid to be living by myself at night . . . I was
afraid that I would fall again because I also have fallen
several times . . . I also have a pace maker and because of
my heart problem I would die at any time.” (Tr. at 57).
the defendant testified that the Plaintiff, as her home
attendant, did cleaning work at her home on Saturday and
Sunday for two months.
defendant received close to $400.00 dollars per month for her
retirement fund. At first, she paid the defendant $800.00
dollars per month and later on she paid her $900.00 dollars
per month. Her four or five children gave her money. Each
child gave her $300.00 dollars, and in addition, she has food
stamps so that she can purchase food.
defendant hired the Plaintiff because her sons were busy and
she was afraid to live by herself. She was scared and could
not go to sleep. Her children were afraid that she would fall
again. Her children gave her money, “but they
didn't care how she spent it.” (Tr. at 66). Her
sons took her out for dinner more than twice a week. Her
youngest son, Wei Hsin Cheng, took her out almost every
defendant has a bank account in the United States at China
Trust. She didn't know if it was a joint account with one
of her children. Her son, Terrence Cheng, purchased the house
in which she resides.
cross-examination by her counsel, the defendant testified
that she came to the United States at the age of
seventy-three and now she is eighty-seven years of age. She
herself made the decision to hire the Plaintiff when the
Plaintiff approached her. Her hours started at 5:00 p.m.
including Saturday and Sunday.
Hsin Cheng, a son of the defendant, called by the Plaintiff,
testified that he has seen the Plaintiff at his mother's
residence and that “she accompanied my mother to
sleep.” (Tr. at 71). He also testified at a deposition
that “she was the one who help my mom out of the
building.” (Tr. at 74). He saw the Plaintiff when he
waited for his mother downstairs, from Monday through
Thursday. When he went to his mother's house to pick her
up for dinner, the Plaintiff was downstairs “to assist
my mother into the vehicle.” (Tr. at 74, 75). He has a
joint bank account with his mother at the China Trust. He
never gave any money to his mother while the Plaintiff was
working for her. He did give money to his mother on her
birthday and New Years Day.
Hsin Cheng, another son of the defendant, also called by the
Plaintiff, testified that he saw the Plaintiff sleeping on
the bed in his mother's house. He knew that she was the
butler for his mother. Asked to explain, he stated that the
Plaintiff accompanies his mother to sleep at night. He would
give his mother $200.00 or $300.00 dollars every year on New
Years Day; and on her birthday and holidays, “just to
show my love to my mother.” (Tr. at 78).
Plaintiff was then recalled by her counsel. While she worked
for Ms. Ching Yi Cheng she did not perform cleaning services
of her house. She just washed the dishes and warmed up the
meals. In testimony, somewhat confusing to the Court, the
Plaintiff testified that she worked for the government on
Saturdays and Sundays for two months from 9:00 a.m. to 3:00
p.m., for six hours. Asked what government hired her to do
that, the Plaintiff responded “the home attendant
company.” (Tr. at 80). During that period she was paid
by checks. Also, during that period the Plaintiff washed
clothes for the defendant; cleaned her sofa; bought groceries
and went to the pharmacy to pickup medication for the
defendant. During that two month period, the Plaintiff also
had her nighttime job at the defendant's home.
a two month period, she worked for the defendant from 9:00
a.m. to 3:00 p.m. on Saturdays and Sundays, and the Plaintiff
did whatever the defendant told her to do, “that was a
must.” (Tr. at 82). Also, the Plaintiff performed
various tasks such as cleaning the sofas; picking up letters;
picking up medications; all as directed by the defendant. The
Plaintiff also massaged the defendant and washed the dishes.
cross-examination, the Plaintiff testified that she went to
the grocery store with the defendant using her wheelchair and
she placed the grocery bags on both sides of the wheelchair.
She purchased tuna, meat, white turnip and tomato for the
defendant. The Plaintiff did this very rarely, maybe once a
week. The Plaintiff also went to the pharmacy to pick up
medications for the defendant. The people at the pharmacy all
knew her. Whenever the defendant was prescribed medications,
she would pick them up. This was apparently twice a month.
Plaintiff then rested. The defendants' motion to dismiss
at the end of the Plaintiff's case was DENIED.
The Defendants' Case
Yi Cheng, the defendant (herself) was called again as a
witness. She testified that she came to the United States at
age seventy-three and that she is eighty-eight years of age.
Asked about her health, the defendant testified that she was
sick and suffered from heart problems and hypertension. She
lives at 4265 Kissena Boulevard, Apartment 406, Flushing, New
York. The apartment consists of one bedroom and one living
room. During the years from 2013 to 2015, her home attendant
resided with her. A company provided a home attendant for her
during the daytime hours. That attendant was paid for by the
government. She also had a nighttime home attendant who she
paid for by herself. The daytime home attendant “did
everything, all the house chores, ” (Tr. At 89);
including washing her underwear; preparing meals; and
sweeping the floor. The daytime home attendant also bought
groceries and picked up medication for her.
the Plaintiff first worked for the defendant she was to be
her companion and spend the night with her. The Plaintiff
asked for $800.00 per month as compensation. The Plaintiff
then asked to raise her compensation to $900.00 dollars per
month. Also, the Plaintiff charged her $20.00 dollars for
trimming her hair and $40.00 dollars for cleaning the windows
in the apartment, which she did once a year.
the Plaintiff had someone replace her when her daughter gave
birth, only for one or two days. The defendant knew that the
Plaintiff had a daytime job as a “home attendant”
“to help an old lady to take a shower.” (Tr. at
95). At one time, the defendant's children had dinner
with her almost every day. Now it occurs less frequently. She
had dinner with her sons from 7:00 p.m. until 9:30 p.m. and
the latest to 10:00 p.m. During that time, the Plaintiff went
home but she came back in time to accompany the defendant
back upstairs to her apartment.
defendant testified that she had a “major” shower
every five days and she cleaned herself, and a
“minor” shower every day, when she cleaned
herself with a towel. She took a shower by herself. She also
cleaned her toilet by herself and dressed and undressed
herself. In the morning, the Plaintiff got up by 7:30 a.m.,
the latest, and left for work. The Plaintiff massaged her
stomach “once every several days.” (Tr. at 99).
Also, the Plaintiff only rarely washed dishes for her. The
Plaintiff kept her coats, a quilt, several pillows and a tea
pot in the defendant's home. The Plaintiff ate her food
in the defendant's home. “She used my residence as
her home.” (Tr. at 100). During the night, the
defendant did not wake up and call for the Plaintiff's
defendant has four sons and a daughter who is in Paris and
did not come to the apartment to meet the Plaintiff ...