Liang et al v. J.C. Broadway Restaurant, Inc. et al

Filing 82

OPINION: The motion for summary judgment is denied. This resolves the motion listed as number 70 in this case, 12 Civ. 1054. (As further set forth in this Order) (Signed by Judge Thomas P. Griesa on 9/15/2015) (kl) (Main Document 82 replaced on 9/15/2015) (kl).

USDCSDNY
DOCUMENT
·
ELECfRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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\l DOC #: - - - - - - : - CHENG CHUNG LIANG, TEH KUI SUN,
and FU HSIUNG CHEN,

1! DATE FILED:
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Plaintiffs,

't/JS/'I ~

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12 Civ. 1054

v.

OPINION

J.C. BROADWAY RESTAURANT, INC.,
et al.,
Defendants.

This is a wage-and-hour action originally brought by three
restaurant chefs against their employers. Cheng Chung Liang, Teh Kui
Sun, and Fu Shiung Chen allege on behalf of themselves and others
similarly situated that defendants failed to pay overtime rates, failed to
pay a minimum wage, and failed to pay all required wage premiums. The
claims in the complaint fall under the Fair Labor Standards Act (FLSA),
29 U.S.C. §§ 201, et seq., N.Y. Lab. Law§§ 650, and NYCRR § 137-1.7.
The claims of Sun and Chen have since been dismissed, leaving
Liang as the sole named plaintiff in the case.

It is not disputed that

Liang's claims exclusively concern defendants' alleged failure to pay
overtime rates.

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Defendants have moved for summruy judgment pursuant to Fed. R.
Civ. P. 56.

They argue that that Liang was subject to the FLSA's

exemption for executive employees, and that his overtime claims must
fail.
The motion is denied.
Factual Background

Liang worked for defendant Empire Szechuan, a Manhattan
restaurant, from October 2009 through November 2011. (Compl.

at~

6.)

Liang was hired as a cook, but in Januruy 2010 he was awarded a
raise and given certain additional responsibilities. (Liang Tr. at 50-65.)
The new responsibilities included ordering supplies for the kitchen and
recruiting and selecting new cooks. (I d.) They also included preparing
sauces, instructing other cooks in the proper execution of recipes, and
directing other cooks to re-cook dishes when customers sent them back.
(ld. at 58, 67-68, 74-76.)

Concurrently, Liang's pay increased from

$2,600 per month to $3,500 per month. (ld. at 60.) The four other cooks
in the kitchen continued to make $2,600 per month. (Id.)
Liang attests that the restaurant owners paid him more than the
other cooks because he was harder-working and more able, not because
he was in a management position.

(Id. at 60-63.) He further explains
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that there was almost always an owner or "boss" in the restaurant, and
that matters of employee discipline, scheduling, and compensation were
handled exclusively by these persons, not by Liang. (Id. at 65-69, 76-77.)

The Motion for Summary Judgment
The motion before the court is straightforward.

Defendants

contend that the evidentiary record reveals that Liang's claims must fail
because he was employed at defendants' restaurants in an executive
position-namely, a "head chef'-rendering him exempt from the
overtime requirements of the FLSA.

Liang counters that the record

reveals no such thing, and opposes summary judgment.
A. Summary Judgment Standard
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue
as to a material fact is genuine if "the evidence is such that a reasonable
jury could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1987).

Anderson v.

In demonstrating the

existence of a genuine issue of material fact, the nonmoving party may
not rest upon mere allegations or conclusory statements, but must go
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beyond the pleadings with proper documentary evidence.

See Davis v.

New York, 326 F.3d 93, 100 (2d. Cir. 2002).
B. Executive Exemption
The FLSA's overtime pay provision does not apply to "any employee
employed in a bona fide executive ... capacity." 29 U.S.C. § 213(a)(1).
Whether an individual employee falls within that exemption is a mixed
question of law and fact that depends upon the actual job characteristics
and duties of the employee. See Myers v. Hertz Corp., 624 F. 3d 537, 548
(2d Cir. 2010) (citing Holzapfel v. Town of Newburgh, 145 F.3d 516, 521
(2d Cir.1998)). The employer bears the burden of establishing that the
employee falls within the exemption. See Corning Glass Works v.
Brennan, 417 U.S.

188,

196-97 (1974).

Because inquiries into

employees' FLSA-exempt status are fact-intensive, "[e]ven where there
has been full discovery, courts are often reluctant to grant summary
judgment based on [an FLSA] exemption." Indergit v. Rite Aid Corp., Nos.
08 Civ. 9361 (PGG), 08 Civ. 11364 (PGG), 2010 WL 1327242, at *7
(S.D.N.Y. Mar. 31, 2010).
Courts have deferred to the Department of Labor's regulations
defining the FLSA's executive exemption.

See,

~

Ramos v. Baldor

Specialty Foods, Inc., 687 F.3d 554, 560-61 (2d Cir. 2012).
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The

Department of Labor classifies employees as "executive" if 1) they are
"[c]ompensated on a salary basis"; 2) their "primary duty is management
of the enterprise . . . or of a customarily recognized department or
subdivision thereof'; 3) they "customarily and regularly direct[] the work
of two or more other employees"; and 4) they "ha[ve] the authority to hire
or fire other employees or" if their "suggestions and recommendations"
on personnel decisions "are given particular weight." 29 C.F.R. §
541.100(a)(l)-(4).
Defendants contend that after January 2010, Liang was the head
chef at the restaurant and an executive employee.

They point to

numerous statements Liang made in his deposition that tend to show he
met some criteria for the executive exemption. For example, Liang was
the only kitchen employee responsible for ordering ingredients.

(Liang

Tr. at 59.) Liang was paid $3,500 per month, which is equivalent to a
salary of $42,000 per year. (Id. at 60.) This made him the highest-paid
member of the kitchen staff, which also included four other cooks, and
several persons performing auxiliary work such as washing and cutting.
(Id. at 60-63.)

Liang admitted that he provided some instruction and

direction to other cooks with regards to executing recipes and responding
to customer preferences and complaints, and that he was sometimes the
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highest-ranking person in the kitchen.

(Id. at 58, 67-68, 74-76.)

Furthermore, Liang stated that he had a role 1n hiring two or three
cooks. (Id. at 64-65.)
Liang disputes defendants' claim that he was a head chef, and
describes his role as that of a cook. He asserts that, while he played a
significant role in recruiting or hiring several cooks, he did not make the
ultimate decision to hire them and he had no authority in setting other
employees' schedules, disciplining them, or firing them.
Liang Aff. at

~

(Liang Tr. at 69;

7.) He contends that the vast majority of his time was

spent cooking, and that management was not his "primary duty." (Id. at
~~

7, 8.)
The second prong of the Department of Labor's test for the

executive exemption is particularly important here.

An employee falls

within the executive exemption only if managerial work was the
employee's "primary duty."

The Department of Labor has made clear

that factual details are indispensable in identifying an employee's
primary duty:
"[A]ssistant managers in a retail establishment who perform
exempt executive work such as supervising and directing the
work of other employees, ordering merchandise, managing
the budget and authorizing payment of bills may have
management as their primary duty even if the assistant
managers spend more than 50 percent of the time performing
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nonexempt work such as running the cash register. However,
if such assistant managers are closely supervised and earn
little more than the nonexempt employees, the assistant
managers generally would not satisfy the primary duty
requirement."
29 C.F.R. § 541.700(c).
In this case, numerous unresolved issues of fact bear upon
whether managerial work constituted Liang's primary duty.

It is clear

that he discharged some special responsibilities and received greater pay
than the other cooks.

And Liang admits, in his deposition and his

affidavit, that he spent at least a small portion of his time assisting or
directing other employees. But there is no definitive evidence concerning
how much time Liang spent cooking versus assisting other employees, or
the extent to which he performed his job under strict supervision.
Under these circumstances, the court must find that there are
genuine issues of material fact concerning whether Liang's "primary
duty" was management of the kitchen.

Conclusion
The motion for summary judgment is denied.

This resolves

the motion listed as number 70 in this case, 12 Civ. 1054.

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So ordered.
Dated: New York, New York
September 15, 2015
United States District Judge

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