Kong v. Wing Keung Enterprises, Inc. et al
Memorandum and Order denying 59 Motion for Reconsideration. Ordered by Judge Raymond J. Dearie on 12/1/2017. (Williams, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
WING KEUNG ENTERPRISES,INC.,
15 CV 6228(RJD)
KEUNG CHAN,MAY TONG,
DEARIE, District Judge
'The standard for granting [a motion for reconsideration] is strict...." Shrader v. CSX
Transp.. Inc.. 70 F.3d 255, 257(2d Cir. 1995)."In determining a motion for reconsideration, the
court should consider:(1) whether there has been 'an intervening change of controlling law;'(2)
whether there is new evidence presented that was not previously available on the original
motion; and (3) whether there is a 'need to correct a clear error or prevent manifest injustice.'"
Ceparano v. Suffolk Cntv. Dep't of Health. No. 09-CV-558(SJF)
(AKT),2014 WL 4385360, at
*I (E.D.N.Y. Sept. 4,2014)(quoting Kolel Beth Yechiel Mechil of Tartikov. Inc. v. YLL
Irrevocable Trust. 729 F.3d 99, 104(2d Cir. 2013)). "[RJeconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to alter the conclusion reached by the
court." Shrader. 70 F.3d at 257(citations omitted). A motion for reconsideration is not a tool "jfor
relitigating old issues, presenting the case under new theories, securing a rehearing on the mer ts.
or otherwise taking a second bite at the apple." Analytical Surveys. Inc. v. Tonga Partners. L.P.
684 F.3d. 36, 52(2d Cir. 2012)(internal citation omitted).
Plaintiff Jun Kong moves this Court to reconsider the Memorandum and Order denying
plaintiffs motion for summary judgment and granting in part and denying in part defendants'
motion for summary judgment.
Memorandum and Order, EOF No. 58. Specifically, plaintiff
argues that the Court should not have granted summary judgment as to plaintiffs overtime
claims made pursuant to the Fair Labor Standards Act("FLSA")and New York Labor Law
("NYLL"), and discrimination claims made pursuant to the New York State and New York Citj[
human rights laws. Plaintiffs motion is denied.
Taking in earnest plaintiffs suggestion that the Court overlooked legal requirements, arid
understanding that it was defendants' burden to provide evidence that plaintiff falls under the
Motor Carrier Act("MCA")exception, this Court undertook a detailed secondary review of the
record and of the controlling case law. Far from overlooking the different types of work plaintijf
may have performed while in defendants' employ, as plaintiff suggested in the motion for
reconsideration, the Court has scoured the record to uncover the nature of plaintiffs work and
make an informed determination as to the MCA exemption's application. The Court stands by its
original decision, denying Plaintiffs motion for reconsideration.
First, Plaintiff asserts that the Court should not have dismissed his overtime claims as
exempted by the Motor Carrier Act for the entirety of his employment. Rather, he argues that his
job description changed several times over the course of his employment at Wing Keung, and tie
was not necessarily a worker "whose activities affect[ed] the safety of operation" of vehicles
used in interstate commerce throughout his employment. See Fox v. Commonwealth Worldwide
Chauffeured Transp. OfN.Y.. LLC.865 F. Supp. 2d 257(E.D.N.Y. 2012). The MCA exceptidn
requires a two-part analysis: first, the court must consider the activities of the employer; second,
the court must evaluate the activities ofthe employee.
Dauphin v. Chestnut Ridge Transp..
Inc.. 544 F.Supp.2d 266, 273 (S.D.N.Y. 2008)("Whether the motor carrier exception applies to
an employee depends on the nature of both the employer's and employee's activities.")(citing 29
C.F.R. § 782.2(a)); See also Tang v. Wing Keung Enterprises. Inc.. 210 F.Supp.Sd 376, 390
(E.D.N.Y 2016). At issue for plaintiff is the second step in the MCA analysis, which hinges on
whether the employee is "engaged in activities of a character directly affecting the safety of
operation of motor vehicles."
29 C.F.R. § 782.2(a)(2)."There are four broad categories of
workers whose duties are said to directly affect the safety of vehicle operation: drivers,
mechanics, loaders, and helpers of the first three." Fox. 865 F.Supp.2d at 266 (internal citations
Here, at any given time during plaintiffs employment with defendants, he served as a
driver, a loader, or a helper. Plaintiff himself testified in his deposition that when he was initially
hired he began working for defendants as a loader. Wang Aff. Ex. 7 at 9:25-10:1-10,11:18-2512:1-9, ECF No. 48-1. This included occasionally riding with the trucks on the road and
regularly helping load or unload the trucks. Id. Defendant Keung Chan testified that while
plaintiff did not always go with the truck, particularly in the early months, plaintiffs role was as
a helper, sometimes in the warehouse and sometimes in the trucks. Wang Aff. Ex. 5 at 31-34,
ECF No. 48-1. Thus, despite plaintiffs varying roles in defendant's employ, his work through(j)ut
included driving, loading, or helping with loading, such that plaintiff does fall under the MCA
Second, Plaintiff also alleges that a"week by week' analysis of his job responsibilities is
required of the Court. On the contrary,"courts often decline to engage in a week-by-week
analysis where it is clear that the reasonable expectation of interstate travel was continuous
throughout the period of employment."
Williams v. Tri-State Biodiesel. L.L.C.. No. 13 CIV
5041 GWG,2015 WL 305362, at *10(S.D.N.Y. Jan. 23, 2015)."Courts have adopted different
approaches in determining what time periods should be used in analyzing exemption claims."
Tang. 210 F.Supp.3d, 393. Plaintiffs work for defendant was exempt under the MCA in each o
the three roles and time periods identified by plaintiff because plaintiff either traveled out of state
or participated in safety affecting activities throughout.
Wang Aff. Ex. 5 at 32:12-16, ECF
No. 48-1; Id Ex. 5 at 31-34; Id Ex. 7 at 77:23-78:4; Id Ex. 7 at 22:4-21; Id Ex. 7 at 9:25-10:1-
10, 11:18-25-12:l-9. The Court accordingly declines to engage in a week-by-week analysis and
affirms its earlier ruling.
Third, plaintiff argues that defendants are barred by collateral estoppel from asserting thai
plaintiff is exempt by the Motor Carrier Exemption because Judge Bloom found separate
plaintiffs were not exempt in a recent case involving the same defendants. See Tang v. Wing
Keung Enterprises. Inc.. No. 14 CV 390(JBW)(LB),2016 WL 6110454, at *13(E.D.N.Y. July
11, 20161. report and recommendation adopted sub nom. Chaohui Tang v. Wing Keung
Enterprises. Inc.. 210 F. Supp. 3d 376(E.D.N.Y. 2016). The Court finds the underlying facts to
be sufficiently distinct to render collateral estoppel inapplicable. See Envtl. Def. v. U.S. E.P.A..
369 F.3d 193, 202(2d Cir. 2004).
Plaintiff finally argues that defendants did not rebut plaintiffs allegation that he was
terminated for a discriminatory reason, or at the least this decision belongs to ajury. But, as the
Court previously found, the only evidence submitted, by either party, indicated that defendant's
motivation for terminating plaintiff was excessive absences, and not any discriminatory animus
related to disability. S^ Memorandum and Order at 6-7.
Accordingly, plaintiffs motion for reconsideration is denied.
Dated: Brooklyn, New York
December 1, 2017
United States District Judge
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