Chen v. MG Wholesale Distribution Inc. et al
ORDER: For the reasons stated in the attached, Defendants' motion for summary judgment is granted as to Plaintiff's sole remaining federal claim in the Complaint, which is dismissed with prejudice, and the Court declines to exercise supplem ental jurisdiction over Plaintiff's state-law claims, which are dismissed without prejudice to being refiled in state court. The Clerk of Court is respectfully requested to enter judgment and terminate this case. Ordered by Judge Pamela K. Chen on 11/14/2017. (Hess, Alexandra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
YU SEN CHEN, individually and on behalf of
all employees similarly situated,
MEMORANDUM & ORDER
16-CV-4439 (PKC) (RLM)
MG WHOLESALE DISTRIBUTION INC.,
“ANDY” CHEUNG, and XIAO MIN YANG,
PAMELA K. CHEN, United States District Judge:*
Plaintiff Yu Sen Chen brings this action against Defendants MG Wholesale Distribution
Inc., Andy Cheung, 1 and Xiao Min Yang for alleged violations of federal minimum wage laws
under the Fair Labor Standards Act (“FLSA”) as well as alleged violations of New York Labor
Law. Before the Court is Defendants’ motion for partial summary judgment. For the reasons
stated below, Defendants’ motion is granted. The Court also declines to exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims.
* The Clerk of Court is respectfully directed to amend the caption to conform to the listing
At his deposition, Defendant Cheung stated that his name is Ming Cheung, although he
goes by “Andy” on a day-to-day basis. (Andy Cheung Deposition (“Cheung Dep.”), Dkt. 53-1, at
11:9-16.) He further stated that his last name is not “Zhang.” (Id. at 11:17-18.) Therefore, the
Court has directed the Clerk of Court to amend the caption accordingly. The Court will refer to
Cheung by his correct name in this Order.
A. Undisputed Facts 2
Plaintiff was hired by MG Wholesale—then known as WS Distribution (Cheung Dep. at
19:14-25) 3—in or around June 1996 as a truck loader and driver’s helper. (Defs.’ 56.1 Stmt., Dkt.
54, at ¶ 3.) MG Wholesale is a restaurant supply wholesale business located in Maspeth, New
York and is owned by Defendants Cheung and Yang. (Id. at ¶¶ 1-2; Yu Sen Chen Deposition
(“Chen Dep.”), Dkt. 53-3, at 14:25-15:21.) Three days each week, MG Wholesale opens at 6:30
a.m. and three days a week it opens at 7:00 a.m. (Cheung Dep. at 25:2.)
Plaintiff stopped working at MG Wholesale on or around August 4, 2016. (Pl.’s 56.1 Resp.
at ¶ 4.) The Parties also agree that Plaintiff worked six days per week, although they sharply
disagree about the number of hours he worked. (Id. at ¶ 5.) One of Plaintiff’s responsibilities was
to open the factory each morning. (Cheung Dep. at 25:3-4.) Per Defendants’ policies, Plaintiff
was required to, and did, clock-in at the beginning of each work day and clock-out at the end of
each workday using a finger scanner. (Pl.’s 56.1 Resp. at ¶¶ 8-10.) Defendant Yang could,
however, manually change the records, and she did so on occasion. (Xiao Min Yang Deposition
II (“Yang Dep. II”), Dkt. 53-5, at 10:5-11.)
The facts recited in this section are taken from the parties’ Local Rule 56.1 submissions
and the record evidence cited therein. (Defs.’ 56.1 Stmt., Dkt. 54; Pl.’s 56.1 Response, Dkt. 561.) Where a party’s Rule 56.1 Statement is cited and there is no contrary evidence in the record,
the Court deems that fact to be undisputed and admitted. Unless otherwise noted, a standalone
citation to a 56.1 Statement denotes that the Court has deemed the underlying factual allegation
undisputed. Any citation to a party’s Rule 56.1 Statement incorporates by reference the documents
cited therein unless otherwise noted. Where relevant, however, the Court may cite directly to the
All page references are to the ECF pagination of the document, and not the document’s
Chen was paid biweekly in cash, with a weekly salary between $588.46 and $600.
(Plaintiff’s Brief (“Pl.’s Br.”), Dkt. 56, at 4.) Plaintiff signed wage statements and time sheets on
each payday (Pl.’s 56.1 Resp., at ¶¶ 13-14), but he never read them (Chen Dep. at 58:9-12; 59:912; 91:12-23). Although he now disputes the accuracy of the pay and time records, Plaintiff never
complained contemporaneously that they were inaccurate (Pl.’s 56.1 Resp. at ¶ 15; Chen Dep. at
90:12-20) and he did not keep independent records of his hours (Pl.’s 56.1 Resp. at ¶ 11). He also
acknowledges that Defendants’ wage and hour records are “facially adequate”. (Pl.’s Br. at 6.)
B. Purported Extra Work by Plaintiff
The crux of the dispute between the parties is the number of hours of work Plaintiff was
compensated for each week. In his Complaint, Plaintiff alleges that he worked 78 to 84 hours per
week from June 1996 to December 2014 and 72 to 81 hours per week from January 2015 to August
3, 2016. (Complaint, Dkt. 1, at ¶¶ 20-21.) In his opposition to summary judgment, Plaintiff states
that he worked between 72 and 96 hours each week. (Pl.’s Br. at 5-6.) During his deposition, he
contended that he worked “for about twelve hours a day” (Chen Dep. at 20:2-3) or “about ten or
twelve hours a day” six days per week (id. at 96:7-16). And, finally, in his Response to
Defendants’ 56.1 Statement, Plaintiff claims that he worked “between 66 and 84 hours per week,
and sometimes more.” (Pl.’s 56.1 Resp. at ¶ 6.) Plaintiff alleges that “no matter how early [he]
clock[ed]-in, how late [he] clock[ed]-in, [he would] get the same amount for [his] salary” (Chen
Dep. at 48:8-10), and that “his hours were so high that his average hourly rate fell below [FLSA’s]
statutory minimum” (Pl.’s Br. at 2).
By contrast, Defendants argue that Plaintiff was promised a minimum weekly salary of
$588.46 (Yang Dep. II at 27:9-16) and that his weekly compensation was the greater of $588.46
or the sum of: (1) an hourly rate for the first 40 hours worked; (2) overtime in the amount of one
and a half times his hourly rate; and (3) a “bonus hour” at his hourly rate for each day that he
worked more than 10 hours in a day as recorded by the finger scanner (Xiao Min Yang Deposition
I (“Yang Dep. I”), Dkt. 53-4, at 33:11-34:14; Yang Dep. II at 23:10-17). Defendants submitted
wage statements and time sheets that they allege demonstrate that Plaintiff was properly and
adequately compensated based on the hours recorded by the finger scanner system. (See Dkts. 538 and 53-9.) Plaintiff does not dispute that these records are “facially adequate”. (Pl.’s Br. at 6.)
In response to the wage and hour records, Plaintiff argues that Defendant Yang manually
“fixed the time” recorded by the finger scanner to artificially lower Plaintiff’s hours. (Chen Dep.
at 78:6-8; see also id. at 85:18-20.) Furthermore, Plaintiff contends that although his signature (or
what appears to be his signature) is on each page of his wage statements and time sheets, these
records have been altered since he signed them or, alternatively, he never signed the records and
someone forged his signature. (Compare Chen Dep. at 24:10-11 (“I signed the document, but . . .
I have no knowledge of the content.”); id. at 24:22-24 (“I can identify my signature. Other than
that, I don’t have no [sic] knowledge of the contents.”); id. at 25:12-19; 26:16-20; 27:15-21; 28:1925, 30:17-19; 33:7-18; 34:2-8; 60:14-16, with id. at 25:24-25 (“I can swear to you that I have not
seen those before and I did not sign those either.”); id. at 29:25-30:2 (“My gut feeling tells me that
I never signed on any piece of paper with this content.”); id. at 108:21-23 (“Q: So none of the
signatures that appear on any of the pages . . . are yours? A: That’s right.”); id. at 28:16-18; 29:510; 30:6-8; 37:3-5; 38:19-39:2; 39:20-21; 40:5-8; 41:16-18; 61:2-5; 62:12-14; 68:22-24; 72:1721; 77:6-7.)
C. Procedural History
Plaintiff commenced this action on August 9, 2016. (Dkt. 1.) On November 16, 2016,
Plaintiff voluntarily dismissed Counts Three and Four of the Complaint. (Dkt. 26.) 4 After the
close of discovery, the parties appeared for a pre-motion conference concerning Defendants’
request to file a motion for summary judgment on the remaining federal claim. With the Court’s
leave, on July 17, 2017, Defendants filed the present motion for partial summary judgment. (Dkt.
Summary judgment is appropriate where the submissions of the parties, taken together,
“show that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986) (summary judgment inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the nonmoving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of N.Y., 579 F.3d 160, 166-67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A mere “scintilla of evidence” in support of the nonmoving party is
insufficient; “there must be evidence on which the jury could reasonably find for the [non4
Count Three alleged a violation of the FLSA’s overtime wage requirements. Count
Four alleged a violation of New York Labor Law’s overtime pay requirements.
movant].” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted;
alteration in original). In other words, “[t]he nonmoving party must come forward with specific
facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quotation omitted).
In determining whether a genuine issue of fact exists, the court must resolve all ambiguities
and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc.
v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any disputed facts in
the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970). However, “the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment.” Anderson, 477
U.S. at 247-48.
A. Federal Minimum Wage Claim
Under Section 206 of the FLSA, “[t]o establish liability on a claim for underpayment of
wages, ‘a plaintiff must prove that he performed work for which he was not properly compensated,
and that the employer had actual or constructive knowledge of that work.’” Salinas v. Starjem
Rest. Corp., 123 F. Supp. 3d 442, 472 (S.D.N.Y. 2015) (quoting Kuebel v. Black & Decker, Inc.,
643 F.3d 352, 361 (2d Cir. 2011)); 29 U.S.C. § 206(a). “In particular, an employee must be paid
at least minimum wage.” Salinas, 123 F.Supp.3d at 361 (citing 29 U.S.C. § 206(a)). To determine
whether an employee was compensated above the required federal minimum wage, the Court must
calculate the employee’s average hourly wage, which is calculated as follows: “the total wage paid
. . . during any given week is divided by the total time [the employee] worked that week.” United
States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960); see also Thind v.
Healthfirst Mgmt. Servs., LLC, 2015 WL 4554252, at *4 (S.D.N.Y. July 29, 2015) (citation and
internal quotation marks omitted). The federal minimum wage for the period in question was
$7.25 per hour. 29 U.S.C. § 206(a)(1)(C); Armata v. Unique Cleaning Servs., LLC, 2015 WL
12645527, at *5 n.5 (E.D.N.Y. Aug. 27, 2015). Therefore, to state a claim under Section 206 of
the FLSA, Plaintiff must prove that the total amount he was paid in a given week (between $588.46
and $600 per week) divided by the number of hours he worked in a given week must be less than
$7.25 per hour. 5
Even assuming arguendo that the Court adopts Plaintiff’s position that Defendants’ records
are inaccurate, and that the Court should instead rely solely on Plaintiff’s recollection, (Pl.’s Br.
7-8); see also Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 88 (E.D.N.Y. 2012) (“[W]hen an
plaintiff[’s] recollection and estimates of hours worked are presumed to be correct.” (internal
quotation marks omitted)), there is still no genuine dispute as to any material fact such that a
reasonable jury could find in Plaintiff’s favor.
Plaintiff concedes that he was paid biweekly in cash, with a weekly salary between $588.46
and $600 during the relevant period. (Pl.’s Br. at 4.) Therefore, by Plaintiff’s own admission,
“[d]uring the period that Plaintiff was paid $588.46[,] Defendants are in violation of the FLSA’s
minimum wage violations where Plaintiff worked in excess of 81.17 hours in a week, and 82.76
hours where Plaintiff was paid $600 per week.” (Id. at 6.) Plaintiff claims in his opposition brief
that he worked between 72 and 96 hours each week (id. at 5-6) and in his Response to Defendant’s
The Court observes that in five work weeks during the time period covered by Plaintiff’s
claims, Defendants’ wage records show an amount owed of less than $588.46. (Dkt. 53-8, at 31,
37, 49; Dkt. 53-9, at 20, 22.) The Court construes Plaintiff’s concession that he was paid a weekly
salary between $588.46 and $600 (Pl.’s Br. 4) to include those weeks as well. This is consistent
with Defendant Yang’s statements that Plaintiff was paid, at a minimum, $588.46, even if he
worked fewer hours. (Yang Dep. I at 33:11-34:14; Yang Dep. II at 23:10-17).
56.1 Statement, claims that he worked “between 66 and 84 hours per week, and sometimes more”
(Pl.’s 56.1 Resp. at ¶ 6). These statements, however, are belied by Plaintiff’s deposition testimony,
to which he has asked this Court to give great weight. (Pl.’s Br. at 8-9.)
First, Plaintiff repeatedly stated during his deposition that he worked “for about twelve
hours a day”, six days per week. (Chen Dep. at 20:2-3; see also id. at 96:7-9 (“I can tell you on
average that I worked for about ten or twelve hours a day.”); 96:14-16 (“I can only give you
average that I worked about ten–plus or twelve hours a day.”).) Accepting this as true, there is no
genuine dispute of material fact at issue in this case. See Anderson, 477 U.S. at 248 (1986) (“Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). If Plaintiff worked 12 hours per day, 6 days per week,
he would have worked 72 hours per week, making his hourly rate $8.17 (assuming a weekly salary
of $588.46) or $8.33 (assuming a weekly salary of $600), well above the federal minimum wage
in effect during his employment.
Second, while Plaintiff states with relative consistency that he started work each day at
approximately 5:40a.m. (Chen Dep. at 63:4-5), Plaintiff gives a broad range of times he may have
He claims that his end time depended on where he was on any given day:
“Sometimes 6:00[p.m.]. Sometimes 7:00. Sometimes 8:00. Sometimes 9:00.” (Id. at 20:17-20.)
However, Plaintiff also states that he sometimes clocked-out “as early as 4:00ish or 5:00[p.m.].”
(Id. at 97:3-4.) 6 When asked if he had evidence of what he believed to be the correct clock-out
(See also Chen Dep. at 37:9-12 (“A lot of time when I finished my work, it’s not 4:00
p.m. It’s not 3:00 p.m. A lot of time, it was 8:00 at night. A lot of time, it was even 11:00 at
night.”); 55:8-10 (“All I can tell you is basically, I always get off after 5:00, around 6:00, and on
my recollection, you know, I have never got off work that early.”); 64:9-10 (“I usually clock-out
around 6:00, 7:00, 8:00, or 9:00, but nothing like this.”); 66:5-7 (“[I]t’s quite often for me to clockout around 8:00ish, 9:00.”); 66:25-67:2 (“Most of the time, I went back around 7:00, 6:00.
Sometimes 8:00.”); 67:14-15 (“I always started before 6:00. I always worked for them until 7:00,
8:00.”); 79:25-80:4 (“[W]hen [I did] clock-out, I’m having difficulty because I don’t remember
times, Plaintiff stated that “I can tell you, and I have said that the earlier time I clock-out was
5:00ish, and sometimes—most of the times are late around 7:00 or 8:00, but if you want me to put
down precisely what time, it is beyond me. I cannot do it.” (Id. at 87:22-88:2; see also id. at
88:16-18.) The most specific evidence of Plaintiff’s exact work hours is his claim that he “usually”
had “three early days and three late days” with “[t]he earliest [he got off work being], like 4:00ish,
5:00, and sometimes it’s like, late, like 7:00 or 8:00[p.m].” (Id. at 95:12-15.) Construing this in
the light most favorable to Plaintiff—that is, assuming he worked from 5:40a.m. to 5:00p.m. on
his “early” days and from 5:40a.m. to 8:00p.m. on his “late” days—he worked at most 77 hours
per week, making his hourly rate $7.64 (assuming a weekly salary of $588.46) or $7.79 (assuming
a weekly salary of $600). Plaintiff’s own testimony, therefore, fails to establish a genuine dispute
of material fact as to whether he was paid at least minimum wage for all hours he worked. The
record shows that he was. 7 In sum, there is not a “scintilla” of evidence, Hayut, 352 F.3d at 743,
on which “a fair-minded jury could return a verdict for [him],” Anderson, 477 U.S. at 252. As
discussed, using Plaintiff’s own testimony about the number of hours he worked—i.e., that he
worked 12 hours per day for a total of 72 hours per week or that he worked three early days and
three late days for a maximum of 77 hours per week—no jury could find that Plaintiff worked
exactly when on each day, but it has always been 6:00 or 7:00 and sometimes 8:00.”); 80:7-8
(“Some days, I left 5:00, but most of the time, I left 6:00, 7:00, or 8:00.”); 84:17-19 (“I usually -the earliest I got off was like 5:00, but most of the time I finished my day around 6:00, 7:00, and
8:00.”); 84:24-85:2 (“The earliest day I came back to sign out, it was at 5:00, but usually, I sign
out at 6:00, 7:00, or 8:00.”); 96:13-14 (“Like at 4:00 or 5:00 when I came back, the latest can be
like 8:00 or 9:00.”).)
Even assuming Plaintiff worked until 9:00 p.m. on his “late” days, he worked a maximum
of 80 hours per week, which is still below the 81-hour per week minimum threshold Plaintiff agrees
is required establish a FLSA violation. (Pl.’s Br. at 6.) In order to prevail, Plaintiff would have
to demonstrate that, at a minimum, he worked, on average, more than 13.5 hours per day, which,
with a clock-in time of 5:40a.m., would mean that he had to, on average, have worked until after
7:10p.m. six days per week.
more than 81.17 hours in a given week, which is the minimum number of hours that Plaintiff would
had to have worked to be paid less than minimum wage. 8 Furthermore, Plaintiff admits that he
has no extrinsic evidence of the number of hours he worked from which the Court can find a
genuine dispute of material fact. (See Chen Dep. at 21:20-22:10; 55:6-56:6; 65:2-4; 66:5-16; 67:923; 68:2-9; 79:25-80:4; 80:16-22; 87:17-88:2.) Therefore, Defendants’ motion for summary
judgment on Plaintiff’s remaining federal claim is granted.
B. Supplemental Jurisdiction
Having disposed of Plaintiff’s only remaining federal claim, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s claims arising under New York Labor Law. See 28
U.S.C. § 1367(c)(3). Where “federal-law claims are eliminated before trial, the balance of factors
to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,
and comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003); see also Marcus v.
AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed
before trial the state claims should be dismissed as well.”).
Accordingly, this Court declines to exercise supplemental jurisdiction over Plaintiff’s state
law claims, and dismisses them without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
Plaintiff’s claim that Defendants’ records are inaccurate is irrelevant in light of the fact
that Plaintiff’s recollections do not support that he worked the requisite number of hours in any
week to support a FLSA minimum wage claim.
For the reasons stated, Defendants’ motion for summary judgment is granted as to
Plaintiff’s sole remaining federal claim in the Complaint, which is dismissed with prejudice, and
the Court declines to exercise supplemental jurisdiction over Plaintiff’s state-law claims, which
are dismissed without prejudice to being refiled in state court. The Clerk of Court is respectfully
requested to enter judgment and terminate this case.
/s/Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: Brooklyn, New York
November 14, 2017
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