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Davis v. Cheng

United States District Court, E.D. New York

December 28, 2017

MENGRU DAVIS, Plaintiff,

          TROY LAW, PLLC Attorneys for the Plaintiff BY: Kibum Byun, Esq., of Counsel

          KEVIN KERVENG TUNG, P.C. Attorneys for the Defendants BY: Song Chen, Esq., of Counsel SPATT, District Judge.



         The 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.

         Initially, 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.

         The 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.

         The case was tried before this Court on October 2, 2017, and was completed in one day.

         This is the Court's decision rendered following the non-jury trial.


         A. The Plaintiff's Case

         The 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.

         Ms. 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.

         After 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.

         Ms. 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).

         The 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.

         The 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.

         While 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.

         Although 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).

         The 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).

         Once every year, the Plaintiff cleaned the windows for Ms. Cheng.

         When the Plaintiff received her cash payments, they would be made by the defendant Ching Yi Cheng.

         On 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 license.

         Ms. 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.

         The 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.

         It was 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.

         Ms. 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 name.

         Sometimes when Ms. Cheng was watching television, the Plaintiff went to bed and was awakened by Ms. Cheng.

         Ms. 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.

         The Plaintiff stated that the defendant had three children. She never met the defendant's daughter.

         On 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.

         On 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 park.

         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.

         The 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.

         Asked 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).

         Also, the defendant testified that the Plaintiff, as her home attendant, did cleaning work at her home on Saturday and Sunday for two months.

         The 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.

         The 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 night.

         The 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.

         On 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.

         Wei 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.

         Hang 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).

         The 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.

         During 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.

         On 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.

         The Plaintiff then rested. The defendants' motion to dismiss at the end of the Plaintiff's case was DENIED.

         B. The Defendants' Case

         Ching 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.

         When 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.

         Also, 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.

         The 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 assistance.

         The defendant has four sons and a daughter who is in Paris and did not come to the apartment to meet the Plaintiff ...

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