Chen v. C & R Rock Inc. et al

Filing 95

ORDER. The court awards the plaintiff damages totaling $16,930.76, for which defendants C&R Rock, Inc. and Jin Huang are jointly and severally liable. Plaintiff has failed to prove that defendants Johnny Zeng and Mark Zeng violated the FLSA and New Hampshire wage and hour law. The plaintiff shall submit an affidavit and accounting of itemized costs and attorneys fees by April 5, 2016. The defendants shall submit any opposition to costs within fourteen (14) days of the filing of the plaintiffs application. Plaintiffs' MOTION to Strike 91 Request for Findings of Fact (doc. no. 92) is denied. Any findings of fact or conclusions of law found in the parties post-trial memoranda (doc. nos. 91 & 93) consistent with this order are granted. Accordingly, all other findings of fact or conclusions of law inconsistent with this order are denied. So Ordered by Magistrate Judge Andrea K. Johnstone. (kad)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Yin Gui Chen
v.

Case No. 14-cv-114-AJ
Opinion No. 2016 DNH 060

C & R Rock Inc., et al.
O R D E R
The plaintiff Ying Gui Chen, proceeding pro se, has brought
suit against C&R Rock, Inc. (“C&R Rock”), Johnny Zeng, Mark
Zeng, and Jin Huang (collectively “defendants”) alleging they
violated the Fair Labor Standards Act of 1938 (“FLSA”), 29
U.S.C. § 201 et seq., and New Hampshire Revised Statutes
Annotated (“RSA”) §§ 275, 279, when they failed to compensate
him for all hours worked and overtime wages.
The court held a one-day bench trial on February 24, 2016.
Chen testified on his own behalf.1
defendants.

Huang testified for the

After considering the trial testimony and the

record evidence, the court concludes that C&R Rock and Huang are
liable to Chen for violations of the FLSA and RSA in the amount
of $16,930.76.

Pursuant to Federal Rule of Civil Procedure

Chen does not speak English. A certified Mandarin interpreter,
appointed by the court and paid for by the plaintiff pursuant to
Federal Rule of Civil Procedure 43(d), was present during all
phases of trial.
1

52(a), the court’s findings of fact and rulings of law are set
forth below.
Findings of Facts
C&R Rock, a corporation based in New Hampshire, does
business as a restaurant under the name Peking Tokyo of Lebanon
(“Restaurant”).

Tr. 50:5-18; Defs.’ Ex. B, doc. no. 88.

On

average, the Restaurant’s sales total between $70,000 and
$80,000 each month.

Tr. 93:4-10.

Jin Huang is the sole owner of C&R Rock.
A.

Id.; Defs.’ Ex.

Johnny Zeng, Huang’s husband, works for C&R Rock as an

assistant manager.

Tr. 49:6-9, 60:9-15.

Mark Zeng, Johnny

Zeng’s uncle, has never been an owner, director, or employee of
C&R Rock.

Tr. 55:17-56:12, 56:20-21.

Huang testified that her responsibilities at the Restaurant
include creating the employees’ schedules, managing orders, and
preparing payroll.

Tr. 60:16-24.

Huang testified that she

understood “labor law” and employees would speak with her if
they “had any issues.”

Tr. 61:5-9, 91:19-23.

Huang testified

that she and her husband, Johnny Zeng, preform “prep work” for
the Restaurant at night after it has closed or before it opens
in the morning.

Tr. 97:15-24.

The plaintiff, Ying Gui Chen, began working at the
Restaurant on September 28, 2009.

2

Tr. 69:2-8; Defs.’ Ex. D.

On

October 2, 2009, Chen and Huang signed an employment agreement.
Defs.’ Ex. H.

The agreement stated that Chen would be paid

$8.00 an hour as a cook for 20 to 40 hours of work per week.
Id.

The agreement also stated that Chen, as an employee, had

“the duty to report any wage statement errors to the Employer
within two (2) weeks of the affected wage statement (including
wrong regular working hour, overtime, overtime pay and pay
rate), otherwise the right to dispute is waived.”

Id.2

Although Chen’s employment agreement stated that he would
be paid $8.00 an hour, he was paid $7.50 from September 28,
2009, to November 29, 2009.

Defs.’ Ex. E, at 1-5.

Huang

explained that Chen’s pay of $7.50 was “the training rate.”
75:2-14.

Tr.

Beginning on November 30, Chen pay was increased to

$8.00 an hour.

Defs.’ Ex. I, at 5.

Chen stopped working at the Restaurant in June 2010.
68:18-2; Defs.’ Ex. D.

Tr.

Soon after, Chen moved to St. Louis,

Missouri to work at another restaurant.

Tr. 23:6-24:18.

Chen

returned to work at the defendants’ Restaurant on January 23,
2012.

Tr. 76:17-24.

There is no evidence of an employment

agreement during this second period of employment.

Chen worked

Chen and Huang also signed a Chinese version of the employment
agreement. Defs.’ Ex. I. The English employment agreement,
however, contains a clause that states “[i]f there is a
dissimilarity between Chinese and English interpretation,
[parties should] accord[] to the English version.” Defs.’ Ex.
H.
2

3

at the Restaurant until the first week of May 2013.

Tr. 9:10-

13, 87:7-10.
At trial, Chen testified that he worked 67 hours each week
while employed by the Restaurant.

Tr. 10:7-9, 19:11.

The chart

below summarizes the hours Chen stated he worked at the
Restaurant each week:
Monday
10:30
a.m.
–
9:30
p.m.

Tuesday

Off

Wednesday Thursday
10:30
a.m.
–
9:30
p.m.

10:30
a.m.
–
9:30
p.m.

Friday

Saturday

Sunday

10:30
a.m.
–
10:30
p.m.

10:30
a.m.
–
10:30
p.m.

11:30
a.m.
–
9:30
p.m.

Tr. 9:20-24, 20:15-20.
The alleged hours worked by Chen mirror the hours the
restaurant was open; the only difference being that Chen
testified that he started working 30 minutes before the
restaurant opened in order to complete food preparation.3
33:8-12.

Tr.

Chen never testified that he performed any work after

the Restaurant was closed for the night.
During trial, the defendants presented pay stubs
(Defendants’ Exhibits E and G) and work schedules (Defendants’

During trial, the defendants stipulated that, from July 2009 to
June 2010, the Restaurant’s operating hours were the following:
Monday – Thursday, 11:00 a.m. – 9:30 p.m.; Friday – Saturday,
11:00 a.m. – 10:30 p.m.; Sunday – 12:00 p.m. – 9:30 p.m. Tr.
31:20-32:19. No evidence was presented as to whether the
Restaurant’s hours were the same during the period Chen worked
at the Restaurant from January 2012 to May 2013.
3

4

Exhibits D and F) to refute Chen’s claim of hours worked.

The

pay stubs note how many hours Chen worked each week and match
the hours Chen was scheduled to work in a particular week.
Defs.’ Ex. D, E, F, and G.

Most weeks, the Restaurant’s

generated work schedule shows that Chen was scheduled to work
either 32 or 40 hours.

Id.

According to these schedules, Chen

was never scheduled to work before or after the Restaurant was
open.

Defs.’ Ex. D and F.

Most, if not all, of Chen’s scheduled work days at the
Restaurant were set into two shifts, with Chen scheduled to work
3 to 4 hours, followed by at least a 90 minute break, and then
returning to work another 4 to 5 hours.

Defs.’ Ex. D and F.

During trial, the court asked Huang what Chen normally did
during the extended break in his schedule.

Huang answered that

Chen would take a walk or go back and rest in a dormitory
located across the street from the Restaurant.

Tr. 98:8-18.4

Huang also testified that, during Chen’s entire employment at
the Restaurant, he was never required to work beyond the
designated hours set in his work schedule.

Tr. 98:19-22.

The court also asked Huang if the Restaurant had any
records that showed the actual hours an employee worked, in

There is no evidence in the record that Huang’s testimony as to
what Chen normally did between his scheduled shifts was based on
her personal observations.
4

5

place of the schedule generated before an employee’s shift.
96:5-14.

Tr.

Huang answered that the Restaurant does use a computer

time card, however, she testified that “most of [the] employees
. . . don’t want to use the computer . . . and like [Chen], he
[does not] know how to use the computer . . . .”

Tr. 96:15-22.

Rulings of Law
I.

Liability under the FLSA and State Law5
To state a valid FLSA claim, the plaintiff must show by a

preponderance of the evidence that: (1) he was employed by the
defendants; (2) his work involved interstate activity; and (3)
he performed work for which he was under-compensated.

Pruell v.

Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012).
As to the first element, it is uncontested that the

In addition to state and federal wage and overtime claims, the
plaintiff’s amended complaint includes claims for unjust
enrichment and violations of the New Hampshire Consumer
Protection Act (“CPA”), RSA § 358-A. Am. Compl. ¶¶ 63-72, doc.
no. 40. The plaintiff never addressed these claims at trial.
Regardless, these claims are inapplicable to this case. First,
“state claims that duplicate FLSA claims are preempted.” Cosman
v. Simon Roofing & Sheet Metal Corp., No. CIV.A. 12-11537-DJC,
2013 WL 2247498, at *2 (D. Mass. May 17, 2013). Here, the
plaintiff’s unjust enrichment claim simply duplicates other
allegations found in the complaint. Second, state consumer
protection acts do “not normally extend to run-of-the-mill
employment disputes.” Anderson v. Sara Lee Corp., 508 F.3d 181,
190 (4th Cir. 2007) (quotation marks omitted). In this case,
the plaintiff has failed to demonstrate any extraordinary
circumstances that would allow RSA § 358-A to apply to his wage
and overtime claims.
5

6

plaintiff, for some period of time, was employed by C&R Rock.
The parties disagree, however, as to the second and third
elements of the plaintiff’s FLSA claim.
A.

Interstate Activity

To satisfy the second element of his FLSA claim, the
plaintiff must demonstrate that his work at the Restaurant
involved interstate activity.

Pruell, 678 F.3d at 12.

This may

be shown by proving that the employer
(i) has employees engaged in commerce or in the
production of goods for commerce, or . . . has
employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced
for commerce by any person; and (ii) is an enterprise
whose annual gross volume [“AGV”] of sales made or
business done is not less than $500,000 . . . .
Martinez v. Petrenko, 792 F.3d 173, 175 (1st Cir. 2015) (quoting
29 U.S.C. § 203(s)(1)(A)).
“A restaurant with over $500,000 in annual sales satisfies
this statutory definition.”

Cordova v. D & D Rest., Inc., No.

14 CIV. 8789 CS LMS, 2015 WL 6681099, at *3 (S.D.N.Y. Oct. 29,
2015); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93
F. Supp. 3d 19, 33 (E.D.N.Y. 2015) (finding that “it is
reasonable to infer that the myriad goods necessary to operate a
. . . restaurant with an eat-in dining area and over $500,000.00
in annual sales do not exclusively come from [instate].

As a

restaurant, it is reasonable to infer that [it] requires a wide
variety of materials to operate, for example, foodstuffs,
7

kitchen utensils, cooking vessels, cleaning supplies, paper
products, furniture, and more.

It is also reasonable to infer

that some of these materials moved or were produced in
interstate commerce.”).
Here, it is uncontested that defendant C&R Rock owns the
Restaurant.

Further, Huang, the owner of C&R Rock, testified

that the restaurant averages between $70,000 and $80,000 in
sales every month.

Therefore, because the plaintiff has shown

that the restaurant averages over $500,000 in annual sales, he
has satisfied the second element of his FLSA claim.
B.

Evidence of Inadequate Compensation

Employees covered under the FLSA are currently guaranteed a
minimum wage of $7.25 for each hour worked.

29 U.S.C. § 206(a).

When an employee works beyond 40 hours in one week, the FLSA
requires that he or she be compensated “at a rate not less than
one and one-half times the regular rate at which he is
employed.”

29 U.S.C. § 207.

New Hampshire law mirrors the

federal wage and overtime requirements.

See RSA § 279:21.

Although a plaintiff normally “has the burden of proving
that he performed work for which he was not properly
compensated,” when an employer has “inaccurate or inadequate”
records, the plaintiff “has carried out his burden if he proves
that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the
8

amount and extent of that work as a matter of just and
reasonable inference.”
U.S. 680, 687 (1946).

Anderson v. Mt. Clemens Pottery Co., 328
In this scenario, the plaintiff’s burden

is minimal.

Sec'y of Labor v. DeSisto, 929 F.2d 789, 792 (1st

Cir. 1991).

Indeed, “[s]ufficient evidence may be established

by recollection alone.”

Solis v. SCA Rest. Corp., 938 F. Supp.

2d 380, 394 (E.D.N.Y. 2013) (quotation marks omitted).

If the

plaintiff succeeds on satisfying his minimal burden,
[t]he burden then shifts to the employer to come
forward with evidence of the precise amount of work
performed or with evidence to negative the
reasonableness of the inference to be drawn from the
employee's evidence. If the employer fails to produce
such evidence, the court may then award damages to the
employee, even though the result be only approximate.
Mt. Clemens, 328 U.S. at 687-88.
In this case, the evidence shows that C&R Rock’s records
are inadequate.

The FLSA requires an employer to “make, keep,

and preserve such records of the persons employed by him and of
the wages, hours, and other conditions and practices of
employment maintained by him . . . .” 29 U.S.C. § 211(c).
Required records include “[h]ours worked each workday and total
hours worked each workweek . . . .”

29 C.F.R. § 516.2(a)(7).

As discussed in the court’s findings of fact, the
defendants submitted pay stubs and employer generated schedules
at trial to demonstrate its maintenance of employee hours
worked.

Prospective work schedules, however, are not a
9

sufficient record of actual hours worked.

See McComb v. La Casa

Del Transporte, 167 F.2d 209, 210 (1st Cir. 1948) (holding that
an employer that did not keep records of “actual time,” but
“recorded merely the ‘average hours' . . . as set forth in the
published schedule” failed to show actual hours worked each day
and hours worked each week); see also U.S. Dep't of Labor v.
Cole Enterprises, Inc., 62 F.3d 775, 779 (6th Cir. 1995)
(finding that shift schedules were not evidence of actual hours
worked).
Further, Huang testified at trial that the Restaurant did
not have time cards for the plaintiff – evidence that may have
demonstrated actual hours the plaintiff worked – because she
contends the plaintiff did not know how to use the computer
system.

In addition, the pay stubs submitted as exhibits by the

defendants offer little support because they align perfectly
with the work schedules created by the employer prior to the
plaintiff’s actual shift.

Consequently, the pay stubs also fail

to demonstrate actual hours worked.
Because C&R Rock’s employee records are inadequate, Chen
has the minimal burden to show “sufficient evidence” of the
length of his employment and the hours he worked each day.
Mt. Clemens, 328 U.S. at 687-88.

See

Chen has satisfied this burden

by providing sworn testimony concerning the general dates of his
employment and the estimated hours he worked each day for the
10

Restaurant.
Chen’s testimony, however, is only partially credible.
Chen’s testimony is credible to the extent of the hours he
worked each day, with the exception of time Chen testified that
he participated in “preparation work” before the Restaurant was
scheduled to open.

The court finds Huang’s testimony that she

and her husband performed food preparation work before and after
the Restaurant was open to be credible.

Huang’s testimony

demonstrated that she had personal knowledge of who performed
preparation work before the Restaurant opened.
The court finds that the defendants failed to rebut Chen’s
testimony that he worked throughout the entire day, contrary to
the gaps between shifts typically indicated on the employer
provided work schedule.

As stated previously, the defendants

have provided no time cards, credible testimony of personal
knowledge, or any other evidence that rebuts Chen’s testimony as
to these hours.

Further, the court finds that Huang’s testimony

as to what Chen did between his shifts speculative.
Although the Restaurant’s work schedules are not evidence
of actual hours worked, the court finds that they are evidence
of actual days worked.

Therefore, the court finds the schedules

submitted by the defendants credible as to actual days, but not
actual times, Chen worked at the Restaurant.
In conclusion, the defendants failed to come forward with
11

evidence as to actual hours worked by the plaintiff.

What

little evidence they submitted largely failed to satisfy an
employer’s requirements under the FLSA.

Thus, the mostly

credible testimony of the plaintiff is weighed heavily by the
court.

The purpose of this burden shifting framework is clear:

“Where the employer has failed to keep adequate employment
records, it pays for that failure at trial by bearing the lion's
share of the burden of proof.”

DeSisto, 929 F.2d at 792.

At

trial, an employer cannot “capitaliz[e] on its failure to
maintain records.”

O'Brien v. Town of Agawam, 482 F. Supp. 2d

115, 119 (D. Mass. 2007).6
The court therefore credits the plaintiff’s account of the
number of hours he worked, with the exception of any alleged
preparation time, based on the days he worked as found in the
defendants’ work schedules and hourly rate of pay reflected in
the defendants’ pay stubs.
II.

Statute of Limitations
Generally, FLSA violations are subject to a two-year

The RSA’s record-keeping, overtime compensation, and minimum
wage requirements are analogous to the FLSA’s regulations and
requirements. See RSA §§ 275:43, 279:21, 27; 29 U.S.C. §§ 20607, 211(c); 29 C.F.R. § 516.2(a). As a result, the court’s
analysis of the burden shifting framework first established in
Mt. Clemens is germane to the plaintiff’s wage and overtime
claims under New Hampshire law. Therefore, the defendants are
liable to the plaintiff under his state wage claims for the same
reasons as under the FLSA.
6

12

statute of limitations.

29 U.S.C. § 255(a).

However, “a cause

of action arising out of a willful violation may be commenced
within three years after the cause of action occurred.”

Id.

(emphasis added).
An employer’s violation is willful if “the employer either
knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the [FLSA] . . . .”
Richland Shoe Co., 486 U.S. 128, 133 (1988).

McLaughlin v.
“[T]he First

Circuit has recognized two separate, yet interdependent,
components implicit in the [willful violation] standard.”
Acosta Colon v. Wyeth Pharm. Co., 363 F. Supp. 2d 24, 28 (D.P.R.
2005) amended on reconsideration in part No. CIV. 03-2327 DRD,
2006 WL 508094 (D.P.R. Mar. 1, 2006).

First, “a plaintiff in

such a case must proffer evidence that . . . the defendant
employer had actual knowledge of, or showed reckless disregard
for, that required under the [FLSA], and, secondly, the employer
intentionally disobeyed or ignored the law.”

Id.; see also Haro

v. City of Los Angeles, 745 F.3d 1249, 1258 (9th Cir.) (“An
employer who knows of a risk that its conduct is contrary to
law, yet disregards that risk, acts willfully.”).
Here, the defendant’s conduct was willful, therefore the
plaintiff is entitled to a three-year statute of limitations.
As stated in court’s findings of fact, Huang testified that she
understood labor law.

Moreover, during trial, the defendants
13

attempted to present evidence of their compliance with state and
federal law by introducing a poster (admitted as defendants’
exhibit C) that hangs near the Restaurant’s kitchen which
informs employees of their rights under the law.7

This evidence

supports that the defendants had actual knowledge of the
requirements espoused under the FLSA and state law.
Just as this evidence supports that the defendants had
knowledge of the applicable law, other evidence supports that
they willfully disregarded it.

First, as stated previously, the

defendants failed to maintain adequate employee records pursuant
to 29 U.S.C. § 211(c), a strong indication of willfulness.

See

Xuan v. Joo Yeon Corp., No. 1:12-CV-00032, 2015 WL 8483300, at
*5 (D.N. Mar. Is. Dec. 9, 2015) (“[The business manager] stated
that he believed he was paying [the plaintiff] more than what
the law required, but nevertheless failed to track hers or any
other employee's hours. In other words, [the business manager],
understanding the requirements of the FLSA and the risk of
noncompliance, determined to proceed as if the risk did not
exist at all — the very definition of willful.”)
Second, the plaintiff’s employment agreement with the
Restaurant states that the plaintiff must “report any wage
statement errors to the Employer within two (2) weeks of the

7

The poster is written in English.
14

affected wage statement . . . otherwise the right to dispute
[the wages] is waived.”

Defs.’ Ex. H.

This type of agreed

waiver of earned wages is a violation of state and federal law,
and a clear demonstration of willfulness.

See RSA § 275:50;

Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 704-07 (1945) (“No
one can doubt but that to allow waiver of statutory wages by
agreement would nullify the purposes of the [FLSA].”).
Third, the evidence shows that the defendants violated
Chen’s employment contract by undercompensating him for the
first two months of his employment, another demonstration of
willfulness.

On October 2, 2009, Chen and Huang signed an

employment agreement stating that Chen would be paid $8.00 an
hour.8

However, from September 28, 2009 to November 29, 2009,

Chen was only paid $7.50 an hour.

At trial, Huang contended

that Chen’s $7.50 wage was “the training rate” and she had
“talked about that” with him.

Yet, there is no evidence in the

record that that Huang and Chen had any agreement that Chen be
paid $7.50 an hour, instead of $8.00 an hour as stated in the
employment agreement, for the first two months of his employment
at the Restaurant.

This employment agreement was signed four days after the
defendant began working for the Restaurant. Defs.’ Ex. D. Under
New Hampshire law, employees must be notified of their rate of
pay at the time of hiring. RSA § 275:49.
8

15

Therefore, because of the defendants’ willful violations,
the statute of limitations is extended to July 24, 2010, exactly
three years before the plaintiff filed his claim in federal
court.9

See doc. no. 1.

III. Individual Liability
In addition to Defendant C&R Rock, the plaintiff also has
claims against defendants Johnny Zeng, Mark Zeng, and Jin Huang
in their individual capacities.

Am. Compl. ¶¶ 17-19.

Under the FLSA, “liability attaches to any ‘employer,’
which is defined broadly to include ‘any person acting directly
or indirectly in the interest of an employer in relation to an
employee.’”

Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 47

(1st Cir. 2013) (citing 29 U.S.C. § 203(d)).

“In determining

employer status, ‘economic reality’ prevails over technical
common law concepts of agency.”

Donovan v. Agnew, 712 F.2d

1509, 1510 (1st Cir. 1983) (citing Goldberg v. Whitaker, 366
U.S. 28, 33 (1961)).

Similarly, the statute of limitations for the plaintiff’s state
wage claims is three years. See RSA §§ 508:4, 275:53, 279:29;
Scacchi v. Dycom Indus., Inc., 297 F. Supp. 2d 406, 408 (D.N.H.
2004) (finding that the three-year limitation period provided by
RSA § 508:4 applied to the plaintiff’s wage claim). The
plaintiff did not raise claims under New Hampshire wage law
until the filing of his amended complaint on January 26, 2015.
Am. Compl. ¶¶ 57-62. As such, because the plaintiff’s claims
under federal law were filed earlier, any damages entitled to
the plaintiff will be already covered by his federal claims.
9

16

“While recognizing the fact-based nature of this test . . .
courts should not apply the analysis in a manner that would
‘make any supervisory employee, even those without any control
over the corporation's payroll, personally liable for the unpaid
or deficient wages of other employees.’”
47 (quoting Donovan, 712 F.2d at 1513).

Manning, 725 F.3d at
Instead, the

analysis focuse[s] on the role played by the corporate
officers in causing the corporation to undercompensate
employees and to prefer the payment of other
obligations and/or the retention of profits. In
addition to direct evidence of such a role, other
relevant indicia may exist as well—for example, an
individual's operational control over significant
aspects of the business and an individual's ownership
interest in the business. Such indicia, while not
dispositive, are important to the analysis because
they suggest that an individual controls a
corporation's financial affairs and can cause the
corporation to compensate (or not to compensate)
employees in accordance with the FLSA.
Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 678
(1st Cir. 1998) (internal citation omitted).
Likewise, under New Hampshire law, a defendant may be
individually liable if an officer of a corporation “knowingly
permitted” the corporation to violate the state’s wage
provisions.
2003).

Richmond v. Hutchinson, 829 A.2d 1075, 1078 (N.H.

The factors to consider are similar to the

considerations made when determining individual liability under
the FLSA.

See id.

17

In this case, the evidence reveals that neither Johnny Zeng
nor Mark Zeng were involved in the incorporation of C&R Rock.
No evidence was presented to show that Johnny Zeng or Mark Zeng
were corporate officers of C&R Rock or possessed any corporate
control of C&R Rock during the relevant time.

Therefore, the

plaintiff has failed to satisfy his claims against Johnny Zeng
or Mark Zeng in their individual capacities.
The plaintiff has, however, demonstrated that Huang may be
jointly and severally liable under the FLSA.

Trial testimony

concluded that Huang is the sole owner of C&R Rock, “a
significant factor in the individual liability analysis.”
Manning, 725 F.3d at 48.

Further, Huang testified that she was

involved in scheduling employees and preparing payroll at the
restaurant.

Huang’s status as owner and controller of the

restaurant’s scheduling and payroll clearly demonstrates that
she is a corporate officer with operational control of C&R Rock
and is thus an “employer” pursuant to the FLSA.
Therefore, as joint employers, Defendants C&R Rock and
Huang may be jointly and severally liable for the plaintiff’s
wage and overtime claims.
IV.

Liquidated Damages
Both the FLSA and New Hampshire law permit a plaintiff to

recover liquidated damages in an amount equal to his unpaid
wages.

29 U.S.C. § 216(b); RSA § 275:44, IV.
18

Under the FLSA, any employer who violates its wage
provisions “shall be liable to the employee . . . in the amount
of their unpaid minimum wages, or their unpaid overtime
compensation . . . an addition equal amount as liquidated
damages.”

29 U.S.C. § 216(b) (emphasis added).

The court may exercise discretion in awarding liquidated
damages “if the employer shows . . . that the act of omission
giving rise to such action was in good faith and that he had
reasonable grounds for believing that his act or omission was
not a violation of the [FLSA].”

29 U.S.C. § 260.

“To

demonstrate good faith, the employer must adduce substantial
evidence showing an honest attempt to determine the requirements
of the FLSA and to comply with them.”

Herman v. Hogar Praderas

de Amor, Inc., 130 F. Supp. 2d 257, 267 (D.P.R. 2001).

Yet, a

showing that the employer “did not purposefully violate the
provisions of the FLSA is not sufficient to establish that it
acted in good faith.”

Reich v. S. New England

Telecommunications Corp., 121 F.3d 58, 71 (2d Cir. 1997).
In this case, because the defendants’ willfully violated
federal and state wage and hour law, the plaintiff is entitled
to liquidated damages.

See Chao v. Hotel Oasis, Inc., 493 F.3d

26, 35 (1st Cir. 2007) (finding that a district court’s
conclusion that a corporation willfully violated the FLSA
“adequately support[ed]” its decision to award liquidated
19

damages).

As stated previously, the court concludes that the

remaining defendants’ violations were willful because they
failed to maintain adequate employment records, attempted to
contract a waiver of any potential wage claims, and for two
months failed to pay the plaintiff the hourly rate specified in
his 2009 employment contract.

The defendants have presented no

“plain and substantial evidence to meet the good faith and
reasonableness standards” to show that they believed their acts
did not violate the FLSA.

Blake v. CMB Const., No. CIV. 90-388-

M, 1993 WL 840278, at *7 (D.N.H. Mar. 30, 1993).
Accordingly, the defendants are liable for liquidated
damages to be “assessed in an amount equal to the uncompensated
. . . wages found to be due to [the] plaintiff.”
VI.

Id.

Calculation of Damages
For the reasons stated above, “the court may . . . award

damages to the employee, even though the result be only
approximate.”

Mt. Clemens, 328 U.S. at 688.

As explained

previously, in calculating damages owed to the plaintiff, the
court credits the plaintiff’s account of the number of hours he
worked, with the exception of any alleged preparation time,
based on the days he worked as found in the defendants’ work
schedules and hourly rate of pay reflected in the defendants’
pay stubs.

Defs.’ Ex. F, G.

Pursuant to 29 U.S.C. § 255(a),

the plaintiff’s damages may only reach back to July 24, 2010.
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The court’s calculations are below:
A.

Straight-time compensation owed to the plaintiff:




B.

From the period of January 23, 2012, to November 4,
2012 (when the plaintiff was paid $8.50 an hour):
o Unpaid hours (245) x Wage ($8.50) = $2,082.50
From the period of November 5, 2012, to May 5, 2013
(when the plaintiff was paid $9.00 an hour):
o Unpaid hours (5) x Wage ($9.0) = $45.00

Overtime compensation owed to the plaintiff:




C.

From the period of January 23, 2012, to November 4,
2012 (when the plaintiff was paid $8.50 an hour):
o Unpaid hours (189.5) x Overtime Wage ($12.75) =
$2,416.13.
From the period of November 5, 2012, to May 5, 2013
(when the plaintiff was paid $9.00 an hour):
o Unpaid hours (290.5) x Overtime Wage ($13.50) =
$3,921.75

Final Damages


Straight-time owed: $2,082.50 + $45.00 = $2,127.50



Overtime owed: $2,416.13 + 3,921.75 = $6,337.88



Liquidated damages: $8,465.38



TOTAL: $16,930.76
Judgment

For the foregoing reasons, the court concludes that the
plaintiff has proved, by a preponderance of the evidence, that
defendants C&R Rock, Inc. and Jin Huang violated the FLSA and
RSA by failing to pay him appropriate straight-time and overtime
wages.

Accordingly, the court awards the plaintiff damages
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totaling $16,930.76, for which defendants C&R Rock, Inc. and Jin
Huang are jointly and severally liable.
The court also concludes that the plaintiff has failed to
prove that defendants Johnny Zeng and Mark Zeng violated the
FLSA and New Hampshire wage and hour law.

Therefore, the

plaintiff is not entitled to any damages from these defendants.
The FLSA provides for the defendants to pay a successful
plaintiff’s reasonable costs.

29 U.S.C § 216(b).

The plaintiff

shall submit an affidavit and accounting of itemized costs and
attorney’s fees by April 5, 2016.

The court notes that the

plaintiff prepaid $1,254.00 to the Clerk of Court for an
interpreter during trial.

On March 17, 2016, the court approved

payment of the interpreters’ submitted invoices and ordered the
remaining balance of monies prepaid by the plaintiff to be
reimbursed to him.

As stated in an order dated February 4,

2016, the plaintiff may recover the actual cost of interpreter
services, which, after partial reimbursement, totals $858.23.
Doc. no. 82 at 5.

The defendants shall submit any opposition to

costs within fourteen (14) days of the filing of the plaintiff’s
application.
Before trial, the court invited the parties to submit
requests for findings of fact and conclusions of law before the
presentation of evidence.
memoranda before trial.

Doc. no. 86.

Neither party submitted

After trial, the court offered the
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parties the opportunity to file post-trial memoranda.
87.

Doc. no.

The pro se plaintiff filed proposed findings of fact and

conclusions of law.

Doc. no. 91.

The defendants filed a motion

to strike the plaintiff’s proposed findings and conclusions
(doc. no. 92) and its own post-trial memorandum.

Doc. no. 93.

In its motion to strike, the defendants contend that the
pro se plaintiff’s filing should be stricken because it does not
contain separately numbered paragraphs, a violation of Local
Rule 16.2(b)(2).

The motion (doc. no. 92) is denied.

Any findings of fact or conclusions of law found in the
parties post-trial memoranda (doc. nos. 91 & 93) consistent with
this order are granted.

Accordingly, all other findings of fact

or conclusions of law inconsistent with this order are denied.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 22, 2016
cc:

Yin Gui Chen, Pro Se
George E. Spaneas, Esq.

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