UcPech v. Chez Thuy Corporation et al

Filing 43

ORDER ON SUMMARY JUDGMENT by Magistrate Judge Kristen L. Mix on 9/16/22. 37 Motion for Summary Judgment IS GRANTED IN PART AND DENIED IN PART.(lgale, )

Case 1:21-cv-00285-KLM Document 43 Filed 09/16/22 USDC Colorado Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-00285-KLM
PEDRO UCPECH,
Plaintiff,
v.
CHEZ THUY CORPORATION, d/b/a Chez Thuy Restaurant, and
THUY LE, an individual,
Defendants.
_____________________________________________________________________
ORDER ON SUMMARY JUDGMENT
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
[#37] (the “Motion”), which seeks judgment as a matter of law on Plaintiff’s claims under the
Fair Labor Standards Act (“FLSA”) and other issues. See Second Am. Compl. [#37]
(“Complaint”). Specifically, Plaintiff seeks summary judgment as to the following: (1)
Defendants are liable for their failure to pay Plaintiff overtime; (2) overtime damages can
be computed; (3) the FLSA applies; (4) liquidated damages are appropriate; (5) Defendants
failed to issue any payment to Plaintiff for his final few weeks of work; (6) unpaid final pay
wages can be computed; (7) wage demand penalties are appropriate pursuant to Colo.
Rev. Stat. § 8-4-109(3); (8) attorney fees may be decided separately; and (9) Defendant
Thuy Le is an additional “employer” under the FLSA. Motion [#37] at 1. Plaintiff does not
seek summary judgment on his claim under the Colorado Wage Claim Act or the Colorado

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Minimum Wage Act, to the extent he is still asserting a violation of the latter Act.1 The
Court has reviewed the Motion [#37], the Response [#38], the Reply [#39], the case file,
and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, the Motion [#37] is granted in part and denied in part.
I. Material Facts
The Court notes at the outset that it is has considered all the facts asserted in the
briefing, even though it has not recited them all in this Order. To the extent the Court
distinguishes below between undisputed and disputed facts, this does not necessarily
mean that there are genuine issues of material fact regarding the disputed facts. The Court
addresses this issue in its analysis of whether summary judgment is appropriate in Section
III, infra.
A.

Undisputed Facts
Defendant Chez Thuy is a restaurant located in Boulder, Colorado. Plaintiff worked

for Chez Thuy in the “back of the house” as a kitchen helper. Plaintiff first started working
for Chez Thuy during the month of August 2019.
During relevant times Defendants maintained a calendar indicating days that
workers were off. In some of Defendants’ records, including the calendar, the Plaintiff
Pedro UcPech is referred to by the nickname “Peter.” On the calendar, Defendants made
notations indicating when Plaintiff was absent from work. Other than the calendar,
Defendants did not maintain any other records of days and times that Plaintiff worked.

1

Plaintiff responded to Defendants’ assertion that Plaintiff was paid properly and in excess
of minimum wage for all hours worked (Response [#38] at 9) by stating that he has not made
minimum wage claims in this case. See Reply [#39] at 5.

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From September 2019 until the COVID-19 pandemic disrupted operations in March,
2020, Plaintiff’s normal schedule was to work full days Mondays, Wednesdays, Thursdays,
Fridays and Saturdays, and a shorter day on Sundays; generally he was off Tuesdays. A
“full day” was 11 hours; Sundays Plaintiff was expected to work 7 hours. Thus, in total,
Plaintiff’s normal work schedule was 62 hours per week.
Defendants issued checks in the following gross amounts to Plaintiff:
Bates

Check Date

Pay Period

Ck No

Gross

D26
D27
D28
D39
D29
D30
D31
D32
D33
D34

10/31/2019
11/30/2019
12/31/2019
1/1/2019
1/31/2020
2/29/2020
4/15/2020
4/30/2020
5/19/2020
6/1/2020

10/1/19-10/31/19

32008
3680
3649
3429
31916
31939
1362
31967
31977
31995

$2,250.00
$750.00
$1,500.00
$1,500.00
$1,500.00
$1,500.00
$1,500.00
$1,500.00
$1,000.00
$1,000.00

Dec. 2019
1/1/20-1/31/20
2/1/20-2/29/20
03/01/20-03/31/20
04/01/20-04/30/20
05/05/20-05/18/20
05/19/20-06/01/20

None of these paychecks indicate quantity of hours worked.2
The following tax documents were issued by Defendants to Plaintiff:
a.

2019: a 1099 for $11,700 and a W2 for $2,250

b.

2020: a 1099 for $11,950, a 1099 for $16,000, and a W2 for $8,000.

Thuy Le is the sole owner of Chez Thuy. Thuy Le has been running the Chez Thuy
restaurant for over 20 years, since approximately 1991. At all relevant times Thuy Le
exercised substantial control over the functions of the company’s employees, including

2

Although not a material fact, Defendants note that the check date for the December 2019
check in the amount of $1,500 is December 19, 2019 (not January 1, 2019). Response [#38] at 4
(citing Ex. 6, Bates No. CHEZ THUY 039). Also although not a material fact as admitted by
Defendants, the checks report a quantity of hours, but Defendants assert without reference to any
evidence that the quantity reported for Plaintiff is not correct. Id.

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Plaintiff. She actively participated in day-to-day operations, had the authority to hire and
fire, and served as the “boss.” In conjunction with the acting manager Amy Khong,
Defendant Thuy Le also handled requests for days off and other employee scheduling
matters.
Defendant Chez Thuy (the “Restaurant”) had annual gross revenues in excess of
$500,000 during relevant times. Defendants purchased items for use in the Restaurant that
originated outside the state, including but not limited to rice, coconut, and lobster.
Defendants admit that Plaintiff was an “employee” within the meaning of 29 U.S.C.
§ 203(e) and 7 CCR § 103-1(2). In deciding how to pay Plaintiff, Defendants did not speak
to the Department of Labor or review its regulations. Defendants also did not seek outside
advice in regard to how to pay employees such as Plaintiff.
Plaintiff, through counsel, sent Defendants a letter dated July 20, 2020 claiming
owed back wages and referring to Colo. Rev. Stat. § 8-4-109. Defendants did not tender
any money to Plaintiff in response.
B.

Disputed Facts
Plaintiff asserts that he first worked for three days from August 19-21 (or 20-22),

2019. Motion [#37] at 2 (citing Pl.’s Ex. 4, Defs.’ First Supp. Resp. to Int. No. 12).
Defendants dispute this. Response [#37] at 3 (noting that First Supp. Resp. to Int. 12
states “Plaintiff worked on a temporary basis for 2 or 3 days [in August 2019][,]” not that
Plaintiff definitively worked three days in August 2019).
According to Plaintiff, Defendants contend that they paid him $150 per day for each
of the first three days referenced above, but have no documentary records of those
payments. Motion [#37] at 3 (citing Ex. 3, Def.’s 30(b)(6) Dep. at 82:5-10; Ex. 4, Defs.’ First
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Supp. Resp. to Int. No. 12; Ex. 5, calendar; Ex. 6, paystubs; Ex. 7, bank records).
Defendants dispute this, asserting that Plaintiff admitted under oath during his deposition
that he was told he would be paid $150/day for each day of work he performed, and that
he would not be paid if he did not work. Response [#38] at 3 (citing Ex. A, Pl.’s Dep. at
52:21-25; 54:15-25; 55:1-7).
Plaintiff avers that he began working for the Restaurant full time on or about August
29, 2019. Id. (citing Ex. 4, Defs.’ First Supp. Resp. to Int. No. 12). Defendants dispute this,
correctly noting that the Response to Interrogatory No. 12 does not state this; rather it
states that “[o]n August 29, 2019, Plaintiff returned to the [R]estaurant again asking for
work.” Response [#38] at 3 (citing Ex. 4).
Plaintiff maintains that at all relevant times Defendants did not maintain timekeeping
records per se in the sense of clock in/clock out punch clocks, POS records, or similar.
Motion [#37] at 3 (citing Answer [#25] ¶ 24; Ex. 3, Defs.’ 30(b)(6) Dep. at 71:3-10.
Defendants admit the Restaurant did not have a punch clock, but deny that they did not
maintain timekeeping records as they maintained calendars to record the days Plaintiff
worked. Response [#38] at 3 (citing Ex. 5, calendar).
According to the Motion [#37], the Restaurant closed for one day for COVID-19
(March 16, 2020) and then reopened with shortened hours (3:00pm to 8:00pm) for the
remainder of Plaintiff’s employment. Staff would arrive approximately a half hour to an hour
before opening time. During this time period Plaintiff asserts that Defendants characterized
his work time as being six hours a day per shift. Motion [#37] at 4 (citing Ex. 3, Defs.’
30(b)(6) Dep. at 50:15-52:23; 62:3-19; 116:23-24). Defendants admit the one day the
Restaurant closed and the shortened hours based on COVID-19, but dispute the hours
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Plaintiff worked per shift after March 17, 2020. As to that issue, Defendants assert that
Plaintiff admitted during his deposition that he arrived at work each day at the start of his
shift or ten minutes before, and the only day he arrived up to thirty minutes before his shift
was on Sunday. Response [#38] at 3-4 (citing Ex. A, Pl.’s Dep. at 78:13-25; 79:1-25; 80:
1-6). Thus, according to Defendants, Plaintiff’s hours after March 17, 2020, at most, were
five (5) hours each day on Monday, Wednesday, Thursday, Friday, and Saturday, and 5.5
hours on Sunday, which totals 30.5 hours a week if he appeared for work each day, with
no applicable overtime.
Plaintiff avers that Defendants paid Plaintiff in cash in the following amounts,
indicated by the following handwritten notes written on the referenced documents:
Bates

Month

Amount

D35
D36
D38
D40
D41
D42
D31
D33

Oct. 2019
Nov. 2019
Dec. 2019
Jan. 2020
Feb. 2020
Mar. 2020
Apr. 2020
May 2020

$2,250
$3,750
$1,500
$3,000
$3,000
$4,500
$4,500
$1,500

Motion [#37] at 5 (citing Ex. 7, bank records; Ex. 3, Defs.’ 30(b)(6) Dep. at 99:10-22).
Defendants dispute this, asserting that they paid Plaintiff the following cash amounts:
Month

Amount

October 2019
November 2019
December 2019
Total 2019:
January 2020
February 2020
March 2020

$2,250
$3,570
$1,500
$7,500
$3,000
$3,000
$4,500
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April 2020
May 2020
June 2020
Total 2020:

$1,500
$1,500
$2,500
$16,000

Response [#38] at 4-5 (citing Ex. 7; Ex. B; Ex. A, Pl.’s Dep. at 75-76) (testifying that he
received the two cash payments of $1,500 and $1,000 as referenced in the June 2020 text
messages). As far as the Court can ascertain from the foregoing, the only dispute pertains
to what amount Plaintiff was paid in cash in April 2020 ($4,500 per Plaintiff or $1,500 per
Defendants), and what amount was paid to Plaintiff in June 2020. Otherwise, the parties
agree on the amounts of cash Plaintiff was paid.
A spreadsheet is attached to the Motion [#37] as Exhibit 9 that, according to Plaintiff,
summarizes Defendants’ payment records (citing Exhibit 6, paychecks; Exhibit 7, notations
of cash payments on bank records, and Exhibit 8, tax records). Id. at 5. Defendants
dispute that the spreadsheet summarizes their payment records, citing its responses to the
paragraphs above indicating the amounts paid to Plaintiff in cash and checks. Response
[#38] at 5. The Court notes, however, that the amount paid to Plaintiff in checks is
undisputed, and the amount paid to Plaintiff in cash is disputed only as to April and June,
as discussed previously.
According to Plaintiff, his rate of pay was a flat rate of $4500 per month. Plaintiff
asserts that Defendants alternately contend that his rate of pay was $12.50 per hour, or
$150 per day. Motion [#37] at 5 (citing Exs 1-2, Complaint & Answer; Ex. 3, 30(b)(6) Dep.
at 40:1-23). Defendants dispute this, asserting that Plaintiff admitted under oath during his
deposition that he was told he would be paid $150/day for each day of work he performed,
and that he would not be paid if he did not work. Response [#38] at 5 (citing Ex. A, Pl.’s
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Dep. at 52:21-25; 54:15-25; 55:1-5). Defendants further assert that as their corporate
representative testified, the day rate of $150 for Plaintiff was calculated based on a regular
rate of $12.50/hour and an overtime rate of $18.75. Id. (citing Ex. 3, 30(b)(6) Dep. at
40:21-23, pp.104-15, explaining that Plaintiff’s requests for cash advances made it appear
as though he was paid $4,500/month, when, in reality, Defendants paid him based on an
hourly rate of $12.50 hour).
At the time of his hire, Plaintiff asserts that Defendants did not expressly state a
specific pay rate. Motion [#37] at 6 (citing Ex. 3, Defs.’ 30(b)(6) Dep. at 120:7-15 (“Q:
Okay.… how was Mr. UcPech's rate of pay, the $12.50 an hour that you talked about or the
$150 a day, how was that communicated to him? Was there any writing given to him, or
was it verbal? How was it communicated? A: We did say that we pay him over minimum
wage. That's all we tell him. Q: That's all you told him? A:Yes). Defendants dispute this,
asserting again that Plaintiff admitted under oath during his deposition that he was told he
would be paid $150/day for each day of work he performed, and that he would not be paid
if he did not work. Response [#38] at 5-6 (citing Ex. A, Pl.’s Dep. at 54:15-25; 55:1-5, 22).
In regard to days and hours worked and when pay was received, Plaintiff attaches
to the Motion [#37] as Exhibit 10 a spreadsheet which he states is based on a summary of
Defendants’ relevant testimony and calendar records, with the amount allegedly paid per
the paystubs and bank records. Defendants’ stated hourly rate of $12.50 per hour is
included to show how much Plaintiff contends he should have been paid if that had been
the rate actually in effect for his work. Motion [#37] at 6 (citing Ex. 10, referencing Ex. 3,
Def.’ 30(b)(6) Dep.; Ex. 6, paystubs; Ex. 7, notations of cash payments on bank records).
Defendants dispute the spreadsheet and Plaintiff’s assertions in this paragraph. They state
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that in addition to the days summarized as not being worked on Exhibit 10, Plaintiff also did
not work on September 11, 2019 or January 16, 2020 through January 24, 2020.
Response [#38] at 6. Then, after COVID-19 closed the restaurant on March 16, 2020, the
Restaurant’s hours changed to 3:00 p.m. to 8:00 p.m. for takeout service only, and Plaintiff
only worked five (5) hours each of these days, with up to 5.5 hours on Sundays (to the
extent he continued to report to work 30 minutes early on Sundays after COVID-19).
The Motion [#37] asserts that Defendants’ calendar shows Plaintiff’s last day as
being June 26, 2020. The last record of any payment issued to him was June 1, 2020.
Motion [#37] at 6 (citing Ex. 5, calendar at CHEZ THUY 25; Ex. 9, spreadsheet of payments
issued; Ex. 6 paystubs at CHEZ THUY 34, with final check dated 6/1/2020). Defendants
dispute this, stating that Plaintiff admitted under oath during his deposition that he received
$2,500 in cash payments from Defendants in June 2020. Response [#38] at 6 (citing Ex.
B, Text Messages, Ex. A, Pl.’s Dep. at pp.75-76 – testifying that he received two cash
payments of $1,500 and $1,000 as referenced in the June 2020 text messages).
Plaintiff states that Defendants advertise the Restaurant to the entire world on the
internet at “www.chezthuy.com” and accept credit cards as one form of payment.
Defendants bank at US Bank. Motion [#37] at 7 (citing Answer [#25] ¶ 9; Ex. 3, 30(b)(6)
Dep. at 126:14-16; Ex. 7, bank records). These assertions are disputed by Defendants.
Specifically, while Defendants admit the Restaurant has a website address and accepts
credit card payments, Defendants assert that they do not engage in advertising and do not
agree with the characterization that they “advertise[] its restaurant to the entire world.”
Response [#38] at 6.

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II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to
assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Pursuant to Rule 56(a), summary judgment should be entered if the pleadings, the
discovery, affidavits, and disclosures on file show “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” An issue is
genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material if it might affect the outcome of the case. Id.
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). When the
movant does not bear the ultimate burden of persuasion at trial, the “movant may make its
prima facie demonstration [of the absence of a genuine issue of material fact] simply by
pointing out to the court a lack of evidence for the nonmovant on an essential element of
the nonmovant’s claim.” Id. at 671. If the movant carries the burden of making a prima
facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim such that a reasonable jury could
find in her favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the
allegations of her pleadings and provide admissible evidence, which the Court views in the
light most favorable to her. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

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III. Analysis
A.

Whether Plaintiff Can Establish Coverage Under the FLSA
Plaintiff asserts that the FLSA applies in this case, and requests summary judgment

to that effect. Motion [#37] at 14. Defendants dispute that the FLSA applies to them, and
accordingly asserts that the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s Colorado Wage Act claim. See Response [#38] at 7-9 and n. 2. FLSA coverage
is a threshold issue that must be addressed for Plaintiff’s FLSA claim to go forward.
An employer is subject to the overtime and minimum wage provisions of the FLSA
if the Plaintiff employee is engaged in commerce (individual coverage) or the employer is
an enterprise engaged in commerce (enterprise coverage). Individual coverage is limited
to employees “who in any workweek [are] engaged in commerce or in the production of
goods for commerce.” 29 U.S.C. 207(a)(1). For individual coverage to apply under the
FLSA, Plaintiff must provide evidence that he was engaged in commerce or engaged in the
production of goods for commerce. Thorne v. All Restoration Servs., Inc., 448 F.3d 1264,
1265-66 (11th Cir. 2006) (citing 29 U.S.C. 207(a)(1)). Plaintiff has not asserted individual
coverage under the FLSA in his Motion [#37], only enterprise coverage. Id. at 14-15; see
also Reply [#39] at 1-4. Nor has Plaintiff presented evidence that he, as a kitchen helper
at the restaurant, was directly engaged in the production of goods for commerce. See
Response [#38] at 8; Monelus v. Tocodrian, Inc., 598 F. Supp. 2d 1312, 1314-15 (S.D. Fla.
2008) (collecting cases and finding that a cook who worked at a local restaurant failed to
establish individual coverage under the FLSA even though he may have handled food that
traveled in interstate commerce).

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Accordingly, the Court turns to Plaintiff’s argument that Defendants engaged in
commerce (enterprise coverage).3

To establish enterprise coverage, Plaintiff must

demonstrate that the enterprise: (1) has at least two employees that are directly engaged
in commerce, in the production of goods for commerce, or handle, sell or otherwise work
on goods or materials that have been moved in or produced for commerce; and (2) that the
enterprise’s annual gross volume of sales made is greater than or equal to $500,000. 29
U.S.C. 203(s)(1)(A)(I)-(ii); see also Harlas v. Barn LLC, No. 18-CV-02320-RM-NYW, 2020
WL 730313, at *3 (D. Colo. Feb. 13, 2020). Defendants concede that their gross annual
sales exceed $500,000; thus, only the first prong of the above test is at issue.
Defendants argue that Plaintiff has not come forward with sufficient evidence that
at least two employees of the Restaurant regularly handle materials that have traveled in
interstate commerce. Response [#38] at 9. In contrast, Defendants note that they provided
deposition testimony that their Restaurant only purchases materials from local suppliers.
Id. (citing Ex. 3, 30(b)(6) Dep. at 125:9-25.)
The Court first rejects Defendants’ argument that enterprise coverage under the
FLSA does not apply because they shop and purchase supplies only from local vendors.
As Plaintiff points out, even if it were true, arguendo, that Defendants never ordered
supplies online and that all of their purchases were made from stores or vendors within
Colorado, that is not enough to demonstrate a lack of interstate commerce as the products
at issue still originated from out of state. Id. at 15. Thus, the Court finds that the evidence
shows that the Restaurant handles, sells, or otherwise works on goods or materials that

3

The Court addresses in Section III.C.2, infra, whether Defendant Thuy Le is an employer,
but assumes for the analysis in this section that she is.

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have been moved in or produced for commerce for purposes of enterprise coverage. As
stated in 29 C.F.R. § 779.242:
[G]oods will be considered to “have been moved * * * in commerce” when
they have moved across State lines before they are handled, sold, or
otherwise worked on by the employees. It is immaterial in such a case that
the goods may have “come to rest” within the meaning of the term “in
commerce” . . . , before they are handled, sold, or otherwise worked on by
the employees in the enterprise. Such movement in commerce may take
place before they have reached the enterprise. . . . Thus, employees will be
considered to be “handling, selling, or otherwise working on goods that have
been moved in * * * commerce” where they are engaged in the described
activities on “goods” that have moved across State lines at any time in the
course of business, such as from the manufacturer to the distributor, or to the
“enterprise,” or from one establishment to another within the “enterprise.”4
Here, it is undisputed that Defendants purchase lobster which they believe is
probably from Maine as well as rice and coconut products that originated out of state.
There are no genuine issues of material fact as to this issue. These food items would
necessarily have moved across State lines before they were handled or sold by employees
of the Restaurant. Courts have found that food items that originated out of state before
being obtained by the enterprise are sufficient to constitute materials that have been moved
in or produced for commerce as required for enterprise coverage. See Torres v. Rock &
River Food Inc., 244 F. Supp. 3d 1320, 1328-30 (S.D. Fla. 2016) (finding that “the
foodstuffs ordered from [a source] whose invoices show that the ingredients traveled

4

Under the FLSA, “goods” are “‘goods. . . wares, products, commodities, merchandise, or
articles or subjects of commerce of any character, or any part or ingredient thereof, but [do] not
include goods after their delivery into the actual physical possession of the ultimate consumer
thereof other than a producer, manufacturer, or processor thereof.” Torres v. Rock & River Food
Inc., 244 F. Supp. 3d 1320, 1328-30 (S.D. Fla. 2016) (quoting 29 U.S.C. § 203(I)). While the
statute does not define “materials,” this has been defined as “‘tools or other articles necessary for
doing or making something.’” Id. (citing Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217,
1223-26 (11th Cir. 2010)). An example of this is soap used by a laundry because soap could be
deemed necessary for washing clothes that is done commercially in the employer’s business. Id.

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across state lines “were materials necessary for the making of something, namely sushi,
and there can be no argument that the making of sushi had a significant connection to the
employer’s commercial activity of serving food[,]” and granting summary judgment to the
plaintiff on FLSA coverage because a reasonable jury could conclude that the ingredients
used by the defendants crossed state lines and were regularly and recurrently handled by
two employees); Diaz v. Jaguar Rest. Grp., LLC, 649 F. Supp. 2d 1343, 1353-54 (S.D. Fla.
2009) (finding that materials used by the defendant’s employees during the course of the
restaurant’s operations were sufficient to trigger enterprise coverage “because, even if the
business purchased those materials locally from Florida restaurant or food product
distributors,” they had “in the past” traveled in interstate commerce); see also Rocha v.
Bakhter Afghan Halal Kababs, Inc, 44 F. Supp. 3d 337, 346 (E.D.N.Y. 2014) (finding that
the first prong for enterprise coverage was met for purposes of motion to dismiss where the
complaint alleged that the plaintiff “regularly handles goods in interstate commerce, such
as dishwashing liquid, olive oil and meat, and other supplies produced outside of the State
of New York”). Defendants have not cited any authority to the contrary, or to support their
argument that this prong of enterprise coverage is not met.
The next question is whether Plaintiff has shown that two or more employees of the
Restaurant handle, sell, or otherwise work on goods or materials as required in the first
prong of enterprise coverage. In addition to his own work, Plaintiff cites evidence regarding
other employees who handled the goods/materials that originated outside of the state.
Reply [#39] at 4. Defendants’ 30(b)(6) representative Amy Khong testified that she worked
at the Restaurant as a waiter and that other employees who worked with Plaintiff included
Tu Ngo (the head chef), Hoa Spitaly (chef), Heng Nguyen (chef), Lin Dong (chef), Hi Lee
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(cook helper), Duong Le (cook helper), Nhi Giang (server), Mike Reed (server), Ching
Nguyen (server), Hi Lou (busser), and Heng To (busser). Ex. 3, 30(b)(6) Dep. at pp 44-49.
The 30(b)(6) representative also testified that four chefs worked together daily when the
restaurant was open, and that three chefs worked daily during COVID-19. Id. at pp. 59-60.
The cook helpers plated some of the food, chopped and cooked vegetables, and cut meat.
Id. at p. 60.5 Plaintiff argues that the Restaurant’s employees would have had to have
used the food items that originated outside of the state. The Court agrees, at least as to
the chefs and the cook helpers, finding that a reasonable jury could conclude from the
evidence that two or more employees at Defendants’ restaurant handled, sold, or otherwise
worked with the food items that originated out of state and have been moved in or
produced for commerce.
Based on the foregoing, the Court finds that the first prong of enterprise coverage
is met. Further, as the second prong is not disputed, the Court finds that there is FLSA
coverage since Defendants’ restaurant is an enterprise engaged in commerce.
Accordingly, the Motion [#37] is granted as to this issue.
B.

Whether Plaintiff Has Shown that Defendants Failed to Pay Him Overtime
Plaintiff next argues that the evidence shows as a matter of law that he was not paid

overtime for the months of October 2019 through February 2020. Motion [#37] at 9.
Plaintiff specifically states that he is not seeking overtime for his work from mid-March

5

While Plaintiff did not specifically reference this testimony in his briefing, he attached this
portion of the deposition to his Motion [#37]. Pursuant to Fed. R. Civ. P. 56(c)(3), the Court may
consider materials in the record even if they are not specifically cited by a party. Defendants did
not cite any authority to the contrary, or present any evidence that only one employee would have
handled such food items. Accordingly, Defendants failed to show that there is a genuine issue of
material fact as to this issue.

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through June 2020 since he was working reduced hours due to the pandemic. Id. at 9-10.
“The FLSA generally requires covered employers to pay its employees overtime pay for
work in excess of 40 hours a week.” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304
(10th Cir. 2011). “Overtime hours must be compensated ‘at a rate not less than one and
one-half times the regular rate at which [the employee] is employed.’” Id. (quoting 29
U.S.C. § 207(a)(1)). An employee’s “regular rate” of pay is thus the basis on which
overtime compensation is computed under the FLSA, and “[t]he proper determination of
that rate is therefore of prime importance.” 29 U.S.C. § 207(a)(1); Walling v. YoungermanReynolds Hardwood Co., 325 U.S. 419, 424 (1945)). “The regular rate ‘shall be deemed
to include all remuneration for employment paid to, or on behalf of the employee,’” with
certain exceptions not applicable here. Chavez, 630 F.3d at 1304 (quoting 29 U.S.C. §
207(e)). The “regular rate is ‘the hourly rate actually paid for the normal, non-overtime
workweek.’” Id. at 1304-05 (quoting Walling, 323 U.S. at 40). This calculation must be
separately performed for each distinct workweek. See Walling, 323 U.S. at 40; 29 C.F.R.
§§ 778.109 and 778.113(b).
Plaintiff asserts that Defendants first paid him a daily rate of $150 a day and then,
when he started full time, changed it to a salary of $4500 per month. Motion [#37] at 9.
Plaintiff relies on the spreadsheet he submitted as Exhibit 9 which contains a summary of
Defendants’ records and testimony regarding pay records (including cash payments as
written in handwriting on bank statements, paystubs, non-payroll checks, W2s, 1099s, and
testimony regarding cash payments for the initial three days of work for which there are no
records). Id. Once these components are put together, Plaintiff avers that the evidence
shows that he was in fact paid a $4500 per month rate from October 2019 through
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February 2020, and also shows that he was not and could not have been paid on an hourly
basis (at $12.50 per hour or otherwise) or a day rate basis as claimed by Defendants. Id.
Specifically, adding the payments by cash and check, “the payment records show a total
of exactly $4500 for the months of October 2019 through February 2020.” Id.6
Defendants disagree, asserting as to Plaintiff’s pay that he admitted in his deposition
that he was informed of a daily rate of $150, not a monthly salary of $4500, and that he
would not receive pay for days he did not work. Response [#38] at 10 (citing Ex. A, Pl.’s
Dep. at 52:21-25; 54:15-25; 55:1-5). Additionally, Defendants assert that the hourly rate
sheets that are maintained and posted in the Restaurant show that kitchen helpers and
dishwashers were paid $12.50/hour in 2019. Id. (citing Exs. C and D). Thus, Defendants
assert that they have provided uncontroverted testimony that the hourly rate for a kitchen
helper was $12.50 per hour, and that Plaintiff and Defendant Thuy Le agreed on a daily
rate of $150. Id. at 11. Plaintiff was, according to Defendants, paid amounts by check and
cash consistent with this agreed rate. Id. Accordingly, Defendants aver that they paid
Plaintiff at least minimum wage and overtime for all hours worked, and Plaintiff’s claims for
unpaid overtime must fail. Id. (citing Ex. 3, Defs.’ 30(b)(6) Dep. at 2:2-24; 70:2-20; 132:1925; 133:1-25; 134:1-12). Finally, Defendants argue that there are disputed issues of
material fact regarding the days and hours worked by Plaintiff, such that summary
judgment may not be entered in favor of Plaintiff on his claims for unpaid overtime. Id.

6

The paystubs show no indication at all of hours worked (or even of days worked); there
is simply a line item for “rate” with a certain even dollar amount, usually $1500 or $1000. Plaintiff
further notes that even when Defendants’ attendance records show Plaintiff as having been a “no
show” for the day, there is no variation in the amount paid. Motion [#37] at 10 and Ex. 10 (day-byday spreadsheet).

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The Court agrees with Plaintiff that the undisputed evidence shows that he was paid
on a monthly rate basis of $4500 from October 2019 to February 2020 through a
combination of payments by payroll, check, and cash. While Defendants dispute the
figures in the spreadsheet Plaintiff relies on (Exhibit 9) and assert that Plaintiff’s argument
that he was paid $4500 a month is not supported by citation to evidence in the record
(Response [#38] at 5, 10), the Court disagrees. Plaintiff has attached the paystubs,
checks, and other evidence that support the spreadsheet and his assertion that he was
paid $4500 a month from October 2019 to February 2020. As explained in Section I, supra,
the amounts that Plaintiff was paid by payroll, check, and cash for the months of October
2019 through February 2020 were not actually disputed by Defendants. Furthermore, to
the extent that Defendants argue that Plaintiff was paid amounts by check and cash
consistent with the $12.50 per hour rate, Response [#37] at 11, they have cited no
evidence in support of this contention and the evidence cited by Plaintiff is to the contrary.
Accordingly, Defendants have failed to raise a genuine issue of material fact as to this
issue.
Defendants also rely on deposition testimony from their 30(b)(6) representative that
the $4500 amount paid to Plaintiff does not accurately reflect the monthly rate of pay
because it reflects advances that Plaintiff received. See Ex. 3, Defs.’ 30(b)(6) Dep. at
40:21-23, pp.104-15. However, Defendants present no evidence in the form of records
from the Restaurant to support that assertion. Moreover, the calculation of the regular rate
of pay is a math calculation based on what the evidence shows the employee was actually
paid, and testimony from the employer contesting that amount is not pertinent to the issue
and does not create a genuine issue of material fact. See 29 C.F.R. § 778.108 (stating that
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“[t]he ‘regular rate’ of pay under the [FLSA] cannot be left to a declaration by the parties as
to what is to be treated as the regular rate for an employee; it must be drawn from what
happens under the employment contract . . . .The Supreme Court has described it as the
hourly rate actually paid the employee for the normal, nonovertime workweek for which he
is employed—an ‘actual fact’”) (quoting Bay Ridge Operating Co. v. Aaron, 334 U.S. 446
(1948)); see also Chavez, 630 F.3d at 1304 (“the regular rate is ‘the hourly rate actually
paid for the normal, non-overtime work week”) (quotation omitted).
The Court also finds that Defendants’ assertion as to how Plaintiff was paid does not
add up mathematically, and thus must be rejected. As to the $12.50 hourly rate, assuming
Plaintiff worked exactly the 62 hours that Defendants admit were his normal weekly work
hours, Plaintiff would have earned $912.50 per week (including 40 hours at the regular rate
and 22 hours at the time and a half rate). See Motion [#37] at 10. There is no relationship
between that number and the amount Plaintiff was actually paid as per Defendants’
records. There is also no relationship between a $150-per-day rate and the pay records.7
The next issue is whether Plaintiff’s regular rate of pay and overtime are
determinable.

First, the Court notes that the FLSA does not require employers to

compensate employees on an hourly rate basis; compensation may be calculated instead
on a monthly basis as here.

29 C.F.R. § 778.109.

In such case the overtime

compensation due to employees must be computed on the basis of the hourly rate derived

7

Plaintiff also correctly notes that none of the time or pay records in the record show
anything about a $12.50 per hour rate. For example, there is no notation of this hourly rate on
paystubs. Reply [#38] at 7. The only proffer in this regard are some written fliers indicating that
rate, but there is no evidence that Plaintiff ever saw those documents or had any awareness of
them, if indeed they actually existed at the time of his employment. Id. Similarly, there are no time
or pay records in the record reflecting a $150 per day rate. Id.

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therefrom. Id. Accordingly, it is necessary to compute the regular hourly rate for Plaintiff.
This must be determined by dividing Plaintiff’s total remuneration for employment in any
workweek by the total number of hours actually worked by him in that workweek for which
he was paid. Id.; see also 29 C.F.R. § 778.113(b) (stating that where the salary covers a
period longer than a workweek, it must be reduced to its workweek equivalent, and that a
monthly salary can be translated “to its equivalent weekly wage by multiplying by 12 (the
number of months) and dividing by 52 (the number of weeks). . . . Once the weekly wage
is arrived at, the regular hourly rate of pay will be calculated . . . [by dividing it by the
number of hours which the salary is intended to compensate]”).
Based on the foregoing, the Court agrees with Plaintiff that his regular rate of pay
and overtime rate are determinable. $4500 per month times 12 months divided by 52
weeks yields a weekly rate of $1038.46. Motion [#37] at 11. Moreover, construing the
evidence in the light most favorable to Defendants for purposes of Plaintiff’s Motion [#37],
the undisputed evidence as discussed in Section I, supra, shows that Plaintiff’s regular
schedule was 62 hours a week (rather than the default of 40 hours a week). Defendants
do not dispute that the resulting regular rate of pay is $16.75 and the corresponding
overtime rate is $25.12. Defendants also do not dispute that even when a nonexempt
employee such as Plaintiff is paid on a monthly basis, he is entitled to overtime for hours
worked over 40 hours a week. See, e.g., 29 C.F.R. § 778.103 (“If in any workweek an
employee is covered by the Act and is not exempt from its overtime pay requirements, the
employer must total all the hours worked by the employee for him in that workweek . . . and
pay overtime compensation for each hour worked in excess of the maximum hours
applicable under section 7(a) of the Act[,]” i.e. 40 hours per 29 U.S.C. § 207(a)(2)(C)).
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The final issue is what amount, if any, of overtime is due Plaintiff. Plaintiff broadly
states that he is owed overtime for 554 hours, citing to the spreadsheet attached as Exhibit
10. See Motion [#37] at 8-9, 11. However, that spreadsheet is not limited to the period
from October 2019 to February 2020 for which the Court has determined Plaintiff’s regular
rate of pay and overtime rate, and workweeks from that period overlap with periods outside
of that time frame. See Ex. 10. Moreover, for some weeks Plaintiff claims overtime of 11
hours and for other weeks he claims overtime of 22 hours. Plaintiff does not explicitly state
in the Motion [#37] how many hours that he is owed overtime during this five month period,
and the Court declines to attempt its own calculation based on a spreadsheet that is
disputed by Defendants. The Court notes in addition that Plaintiff has not briefed what the
regular rate of pay is for the other periods that he worked and for which Plaintiff seeks
overtime (presumably August and September 2019 as well as the first half of March), and
the Court finds that there are genuine issues of fact relating to the hours/days worked, at
least as to August 2019 and March 2020. Accordingly, to the extent Plaintiff requests that
the Court find as a matter of law that he is entitled to overtime of 554 hours of total overtime
amounting to $13,918.73, the Court declines to do so as this has not been properly
established. The Motion [#37] is thus denied as to the amount of overtime due, and what
that amount is for the months at issue that Plaintiff worked for Defendants.
C.

Additional Issues
1.

Whether Defendants Failed to Pay Plaintiff for His Final Weeks of Work

Plaintiff next argues that Defendants failed to pay Plaintiff for his final weeks of work
in June 2020. Motion [#37] at 12. According to Plaintiff, the last record of a paycheck (or

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payment of any kind) issued to him was dated June 1, 2020. Id. During the 21 workdays
during this period, Plaintiff states he was working the shortened schedule of six hours a day
(citing Exhibit 10), and that he was unpaid for 126 hours of work. Id. The Court finds that
there are genuine issues of material fact as to this issue. Defendants dispute that Plaintiff
received only one paycheck on June 1, 2020, citing his testimony that he received a cash
payment of $1,500 on June 12, 2020. Response [#38] at 5 (citing Ex. A, Pl.’s Dep. at 7576). Moreover, even if amounts were not paid to Plaintiff in June 2021, Plaintiff provides
three different possibilities for what the regular rate of pay should have been for his work
that month. Motion [#37] at 12-13. The Court cannot make this determination based on
the evidence of record. Accordingly, the Motion [#37] is denied as to Plaintiff’s argument
that he was not paid for his final weeks of work in June 2021, and what amount, if any, he
is owed for that month.
2.

Whether Thuy Le is an Additional Employer under the FLSA

Plaintiff also asserts that Defendant Thuy Le is an “employer” of Plaintiff (in addition
to Defendant Chez Thuy Corporation). Motion [#37] at 13-14. As this Court has stated,
personal liability under the FLSA has often been imposed on an individual who “falls within
the FLSA’s definition of an ‘employer’ and thus shares statutory obligations with the
corporation itself.” Lopez v. Next Generation Constr. & Envtl., LLC, No. 16-cv-00076-CMA,
2016 WL 6600243, *3-4 (D. Colo. Nov. 8, 2016). Numerous factors are considered in
determining whether an individual is an “employer” under the FLSA, including “whether the
alleged employer has the power to hire and fire employees, supervises and controls
employee work schedules or conditions of employment, determines the rate and method

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of payment, and maintains employment records.” Id. “Courts also have looked at the level
of operational control the individual has over the company, including whether the individual
is ‘involved in the day-to-day operation or ha[s] some direct responsibility for the
supervision of the employee.’” Id. (quotation omitted).
Here, Plaintiff cites evidence supporting his assertion that Thuy Le “was the ‘boss’
as well as the owner of the restaurant, had the power to hire and fire, had the authority to
set or alter work schedules, and was actively involved in day to day operations of the
restaurant. Motion [#37] at 14; see also id. at 6 ¶ 26 (citing Answer [#25] ¶¶ 12-14; Ex. 3,
30(b)(6) Dep. at 53:1-24, 56:1-9.5). These facts were not disputed by Defendants (see
Response [#38] at 6 ¶ 26), and support Plaintiff’s argument that Thuy Le was an additional
employer. Additionally, Defendants did not address the merits of Plaintiff’s argument that
Thuy Le is an employer, or cite any evidence to create a genuine issue of material fact as
to this issue. Accordingly, the Court finds from the foregoing that Thuy Le is an additional
employer of Plaintiff as defined in the FLSA. Summary judgment is thus granted as to this
issue.
3.

Whether Liquidated Damages are Appropriate

Plaintiff also contends that liquidated damages are appropriate on the FLSA claim
because Defendants cannot maintain a “good faith” defense. Motion [#37] at 15-17. The
Tenth Circuit has made clear that an employer in violation of the FLSA is generally liable
for both compensatory damages as well as “‘an additional equal amount as liquidated
damages,’” essentially doubling the plaintiff’s damage award. Mumby v. Pure Energy
Services (USA) Inc., 636 F.3d 1266, 1272 (10th Cir. 2011) (quoting 29 U.S.C. § 216(b)).

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However, if the employer can establish that its conduct was both in good faith and based
on a reasonable belief that its conduct was not in violation of the FLSA, the court may, in
its discretion, award less or no liquidated damages. Id. (citing 29 U.S.C. § 260).
“Good faith is a subjective test that requires ‘the employer have an honest intention
to ascertain and follow the dictates of the FLSA.’” Fowler v. Incor, 279 F. App’x 590, 599600 (10th Cir. 2008) (quotation omitted). The reasonableness requirement “‘imposes an
objective standard by which to judge the employer’s behavior.’” Id. at 600 (quotation
omitted). Only in those instances where the court finds that the employer meets this
burden, may the court, “in its sound discretion,” deny liquidated damages. Id.
Here, Plaintiff asserts that “Defendants have not put forth evidence that as a matter
of law could satisfy this burden of proof.” Motion [#37] at 17. Further it is undisputed that
in deciding how to pay him, Defendants did not speak to the Department of Labor or review
its regulations, nor did they seek any other outside advice on the matter. Id. at 17, see also
6 id. at 7 ¶¶ 31-32; Response [#38] to ¶¶ 31-32 at 6-7). Plaintiff concludes that regardless
of what Defendants’ internal subjective state of mind may have been, this stance is
objectively unreasonable. Motion [#37] at 17.
Turning to the Court’s analysis, the employer bears the burden on the issue of
liquidated damages to prove that its conduct was reasonable and in good faith. See Renfro
v. City of Emporia, Kan., 948 F.2d 1529, 1540 (10th Cir. 1991). If this burden is met, the
Court may eliminate or reduce the award of liquidated damages. Id. For purposes of
assessing whether the employer has met its burden, “[t]he good faith requirement
mandates the employer have ‘an honest intention to ascertain and follow the dictates of the
Act.’” Id. (quotation omitted).

“‘The additional requirement that the employer have
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reasonable grounds for believing that his conduct complies with the Act imposes an
objective standard by which to judge the employer’s behavior.’” Id.
In this case, Defendants did not respond to Plaintiff’s argument that he is entitled to
liquidated damages, present any evidence as to how their conduct was objectively
reasonable to meet their burden on this issue or to refute Plaintiff’s evidence, or dispute
that liquidated damages are appropriate if Plaintiff prevails on the FLSA claim. Accordingly,
the Court finds that liquidated damages are appropriate and such award is mandatory if
Plaintiff prevails on his FLSA claim. The Motion [#37] is thus granted as to this issue.
4.

Whether Colorado Wage Demand Penalties are Appropriate

Finally, Plaintiff argues that Colorado wage demand penalties are appropriate in this
case pursuant to Colo. Rev. Stat. § 8-4-109(3). That statute provides that “[i]f an employer
refuses to pay wages or compensation in accordance with subsection (1) of this section,
the employee, his or her designated agent, or the division may send a written demand for
the payment.” Id. § 8-4-109(3)(a). If the employer disputes the amount of wages or
compensation claimed by the employee, it may make “a legal tender of the amount that the
employer in good faith believes is due” within fourteen days after the written demand is sent
in order to avoid a penalty. § 8-4-109(3)(a.5). If the employer does not make such a legal
tender, it “shall be liable to the employee for the wages or compensation, and a penalty of
the sum of the following amounts of wages or compensation due or, if greater, the
employee's average daily earnings for each day, not to exceed ten days, until such
payment or other settlement satisfactory to the employee is made:
(I) One hundred twenty-five percent of that amount of such wages or
compensation up to and including seven thousand five hundred dollars; and
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(II) Fifty percent of that amount of such wages or compensation that exceed
seven thousand five hundred dollars.”
§ 8-4-109(3)(b).
Here, Plaintiff’s attorneys sent a written demand letter dated July 9, 2020 for
Plaintiff’s wages pursuant to § 8-4-109(3). Motion [#37] at 17 (citing Ex 11). Plaintiff further
asserts that the Complaint in this action was filed on January 28, 2021, and can serve as
a “written demand.” Id. (citing Damitio v. Sushi Zanmai Inc., No. 12-CV-2603-JLK, 2013
WL 136186, at *1 (D. Colo. Jan. 10, 2013). Defendants have not, according to Plaintiff,
paid any money in response to the letter or the Complaint, and considerably more than 14
days have passed.

Id.

Accordingly, pursuant to § 8-4-109(b), which language is

mandatory, Plaintiff argues that Defendants are liable for damages equal to 125% of the
first $7,500 owed to Plaintiff, plus 50% of the remainder. Again, Defendants did not
respond to this argument in their Response [#38], present any evidence to create a
genuine issue of material fact, or dispute that wage demand penalties under § 8-4-109(b)
are appropriate if Plaintiff is owed compensation. Accordingly, if Plaintiff prevails on his
claim under the Colorado Wage Act, the Court finds that penalties are appropriate as set
forth in Colo. Rev. Stat. § 8-4-109(b), and the Motion [#37] is granted as to this issue.8
III. CONCLUSION
Based upon the foregoing,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [#37] is

8

While the Motion [#37] states that it seeks summary judgment on the issue of whether
“attorney fees may be decided separately,” id. at 1, Plaintiff did not brief this issue. The

Court agrees, however, that attorney fees, if appropriate, would need to be decided after
the remaining issues are resolved at trial.
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GRANTED IN PART AND DENIED IN PART. Specifically,
IT IS ORDERED that the Motion [#37] is GRANTED IN PART as follows:
1)

Defendants’ restaurant is an enterprise engaged in commerce and governed
by the FLSA;

2)

Defendant Thuy Le was an additional employer of Plaintiff under the FLSA;

3)

From October of 2019 through February of 2020, Plaintiff was paid on a
monthly rate basis of $4500 per month;

4)

For the time period of October 2019 through February or 2020, Plaintiff’s
regular rate of pay was $16.75 per hour and his overtime rate of pay was
$25.12 per hour;

5)

If Plaintiff prevails on his FLSA claim, liquidated damages are appropriate;
and

6)

If Plaintiff prevails on his Colorado Wage Act claim, statutory penalties are
appropriate.

IT IS FURTHER ORDERED that the Motion [#37] is DENIED IN PART as to:
1. The amount of overtime due to Plaintiff for the period October of 2019 through
February of 2020 or for other time periods that Plaintiff worked;
2. Whether Plaintiff was paid for his final weeks of work in June of 2021; and
3. What amount of pay, if any, is owed to Plaintiff for his work in June 2021.
Dated: September 16, 2022

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