Zhuo v. Jia Xing 39th Inc. et al

Filing 44

OPINION & ORDER re: 32 MOTION to Certify Class filed by Qing Tiang Zhuo. Because plaintiff has proffered a sufficient factual nexus between himself and the putative collective to determine that they are indeed similarly situated for purposes of this motion, his motion for conditional certification of a FLSA collective action is granted. SO ORDERED. (Signed by Judge Sidney H. Stein on 4/01/2015) (ama)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATEF-IL_E_D_:_r_/~,/~,('----/

QING TIAN ZHUO, on behalf of himself,
FLSA Collective Plaintiffs and the Class,

14-Cv-2848 (SHS)

Plaintiff,

OPINION & ORDER

-againstJIA XING 39TH INC., LI XING INC., XING
WONG GOURMET INC., XING YUE INC.,
CHENG ZHONG HUANG, ZHENG JING
HUANG, XING HUANG, LIAO LILI, and
XUE YAN WANG,
Defendants.

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\

·-------------------------------------------------------------------------------------------------J!

SIDNEY H. STEIN, U.S. District Judge.
Plaintiff Qing Tian Zhuo brings this action on behalf of himself and
other current and former tipped employees of defendants, alleging various
wage and hour violations of the Fair Labor Standards Act ("FLSA"), 29
U.S.C. §§ 201 et seq. and New York Labor Law ("NYLL"), Art. 6 §§ 190 et

seq. and Art. 19 §§ 650 et seq. Currently before the Court is plaintiff's
motion for conditional certification of his FLSA collective action claims
pursuant to 29 U.S.C. § 216(b). Because plaintiff has made the required
factual showing that he and potential opt-in plaintiffs were the subjects of
a common policy or plan that violated the law, plaintiff's motion is
granted.
I.

BACKGROUND

Qing Tian Zhuo has brought this action against the corporate owners
and individual officers of four Szechuan Gourmet restaurants in New

York. 1 Plaintiff, a former delivery person at defendants' Szechuan
Gourmet restaurant located at 1395 Second A venue in Manhattan, alleges
violations of the FLSA minimum wage, overtime, and tip credit
provisions. (Compl. <JI'Il 40-52, Dkt. No. 2.)
Plaintiff alleges the following facts: During his six months of
employment from October 2012 through April 2013, plaintiff, a tipped
employee, 2 worked 11 hours per day, six or seven days per week, for a
fixed daily salary of $40 per day, or roughly $3.64 per hour. (Compl. <JI<JI
23-24.) Plaintiff did not receive overtime for any hours worked in excess of
forty in a work week. (Id. <JI<JI 29-30, 33.) Defendants paid plaintiff
biweekly in cash and never furnished any wage statements. (Id. <JI<JI 25, 38.)
Defendants also failed to provide notice that they were taking a tip credit
for each payment period. 3 (Id. <JI<JI 26, 31-32.)
Plaintiff brings his FLSA claims on behalf of himself and other
similarly-situated tipped employees who worked at any of the four
Szechuan Gourmet restaurants during the past three years. (Id. <JI<JI 12-14.)
He alleges that the Szechuan Gourmet restaurants operate as a single
integrated enterprise, with common ownership, joint advertising, a general
manager, and freely-interchangeable staff. (Id. <JI 9.) He claims that
defendants applied the same wage and hour policies to the tipped
employees at all four locations. (Id. <JI<JI 12-14, 25-33, 38.)

The four restaurants are located at: 1395 Second Avenue, New York, NY 10021; 242
West 561h Street, New York, NY 10019; 21West391h Street, New York, NY 10018; and
135-15 371h Avenue, Flushing, New York 11354. (Compl. 'lI'lI 6, 8.)

1

A "tipped employee" is "any employee engaged in an occupation in which he
customarily and regularly receives more than $30 a month in tips." 29 U.S.C. § 203(t).

2

A tip credit is the amount from employee tips that an employer may count toward
his or her payment of the full federal minimum wage. See 29 U.S.C. § 203(m). An
employer may take a tip credit for a tipped employee provided "such employee has
been informed by the employer of the provisions of this subsection, and all tips
received by such employee have been retained by the employee." Id.

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2

Defendants deny plaintiff's allegations and oppose the conditional
certification of the FLSA collective action. They maintain that the four
Szechuan Gourmet restaurants are "separate entities" which are
"unaffiliated" and that there is no common policy or practice applied by
defendants to employees at the four restaurants. (Defs.' Mem. of Law in
Opp'n to Pl.'s Mot. for Conditional Collective Certification at 4-6, Dkt. No.
38.) As a result, defendants contend that plaintiff is not similarly situated
to the employees of the three restaurants where he did not work and
therefore conditional certification would be improper. (Id. at 6-7.)
II. LEGAL STANDARD
The FLSA "was created to eliminate low wages and long hours as well
as to free commerce from the interferences arising from production of
goods under conditions that were detrimental to the health and well being
of workers." Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 320
(S.D.N.Y. 2007) (internal quotation marks omitted). Accordingly, the FLSA
"regulates minimum wages and overtime wages paid by employers
engaged in interstate commerce." Id.
Pursuant to Article 16(b) of the FLSA, employees may sue on behalf of
themselves and "other employees similarly situated." 29 U.S.C. § 216(b).
In Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010), the U.S. Court
of Appeals for the Second Circuit endorsed the two-step approach to
certification widely used by the district courts. "The first step involves the
court making an initial determination to send notice to potential opt-in
plaintiffs who may be 'similarly situated' to the named plaintiffs with
respect to whether a FLSA violation has occurred." Id. at 555. During the
second step, the court evaluates "whether a so-called 'collective action'
may go forward by determining whether the plaintiffs who have opted in
are in fact 'similarly situated' to the named plaintiffs. The action may be
'de-certified' if the record reveals that they are not, and the opt-in
plaintiffs' claims may be dismissed without prejudice." Id.

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"Neither the FLSA nor its accompanying regulations define the term
'similarly situated."' Fasanelli, 516 F. Supp. 2d at 321. Bearing in mind the
remedial purposes of the statute, the named plaintiff, at the first stage,
must simply "make a 'modest factual showing' that [he] and potential optin plaintiffs 'together were victims of a common policy or plan that
violated the law.' ... The 'modest factual showing' cannot be satisfied
simply by 'unsupported assertions' ... but it should remain a low
standard of proof because the purpose of this first stage is merely to
determine whether 'similarly situated' plaintiffs do in fact exist." Myers, 624
F.3d at 555 (citations omitted); see also Fasanelli, 516 F. Supp. 2d at 321
(calling the burden "minimal" and noting that the plaintiff need only show
a "factual nexus" between his claims and the claims of those who have
chosen to opt in).
Because the court is assessing the plaintiff's claims at the start of
discovery, the court "need not evaluate the merits of plaintiff[' s] claims in
order to determine that a definable group of 'similarly situated' plaintiffs
... exist[s]." Hoffman v. Sbarra, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997);
see also Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y.

2007) ("At this procedural stage, the court does not resolve factual
disputes, decide substantive issues going to the ultimate merits, or make
credibility determinations."). The conditional certification standard is
"considerably more liberal than class certification under Rule 23" and does
not require a showing of numerosity, typicality, commonality, or
representativeness. Lynch, 491 F. Supp. 2d at 369.
Courts throughout this district "have endorsed the sending of notice
early in the [FLSA] proceeding, as a means of facilitating the FLSA' s broad
remedial purpose and promoting efficient case management." Hoffman,
982 F. Supp. at 262. Once the plaintiff sends court-approved notice to the
potential collective members, the potential plaintiffs may "elect to opt-in
pursuant to section 216(b) by filing Consent Forms with the court." Lynch,
491 F. Supp. 2d at 368.

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Ill. DISCUSSION
A. Plaintiff's Motion for Conditional Certification is Granted
The Court must determine whether there is a "factual nexus" between
the claims of the named plaintiff, Qing Tian Zhuo, and the putative
collective such that the Court can be satisfied, based on the pleadings and
any affidavits, that they were "victims of a common policy or plan that
violated the law." Fasanelli, 516 F. Supp. 2d at 321 (internal quotation
marks omitted). Zhuo's motion for conditional collective certification is
supported by the allegations in his Complaint and his two declarations
sworn under penalty of perjury.
In his Complaint, Zhuo asserts a colorable claim that defendants failed

to pay him proper minimum wage and overtime compensation while
serving as a tipped employee at the Szechuan Gourmet restaurant located
at 1395 Second Avenue. (Compl. <JI<JI 24-33, 44-49.) In his first declaration,
Zhuo reiterates the same allegations. (Declaration of Qing Tian Zhuo,
dated January 15, 2015 ("Zhuo Deel."), Dkt. No. 34.) Consistent with the
Complaint, Zhuo also avows that the Szechuan Gourmet restaurants are
operated as a common enterprise under the trade name Szechuan
Gourmet; that one person owns all four restaurants; and that the
employees, including the kitchen staff, cashiers, servers, and manager, are
"freely interchangeable" among the restaurants. (Id. <JI 2; see also
Declaration of Qing Tian Zhuo, dated March 5, 2015 ("Zhuo Suppl. Deel.")
<JI 1, Dkt. No. 41.) For instance, according to Zhuo, one individual manages

all four locations. (Zhuo Suppl. Deel. <JI 2.) In addition, plaintiff knows that
at least two individuals who worked at the Second A venue location had
been transferred there from the 391h Street location. (Id. <JI<JI 2-3.)
"[B]ased on [plaintiff's] conversations with coworkers transferred
from other locations," Zhuo declares that "[d]efendants implemented the
same wage and hour policies on all tipped employees at all of the
Szechuan Gourmet [r]estaurants." (Zhuo Deel. <JI 2.) For each FLSA

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violation-related to minimum wage, overtime, and the tip credit-Zhuo
affirms that "[b ]ased on [his] personal observations and conversations
with coworkers, other tipped employees at the [four] Szechuan Gourmet
[r]estaurants" were victims of the same illegal policies. (Id. <JI<JI 3-5, 7-8, 11.)
These declarations are sufficient to satisfy the "modest factual
showing" that plaintiff is similarly situated to tipped employees at all four
Szechuan Gourmet locations in New York. Myers, 624 F.3d at 555 (internal
quotation marks omitted). Several courts have conditionally certified a
collective of employees spanning multiple locations based on the
allegations and affidavit of a single plaintiff who worked at only one
location. See Mendoza v. Ashiya Sushi 5, Inc., No. 12-Cv-8629, 2013 WL
5211839, at *4-5 (S.D.N.Y. Sept. 16, 2013); Cheng Chung Liang v.]. C.
Broadway Rest., Inc., No. 12-Cv-1054, 2013 WL 2284882, at *1 (S.D.N.Y. May
23, 2013); Khamsiri v. George & Frank's Japanese Noodle Rest. Inc., No. 12-Cv265, 2012 WL 1981507, at *1 (S.D.N.Y. June 1, 2012); Harrington v. Educ.
Mgmt. Corp., No. 02-Cv-0787, 2002 U.S. Dist. LEXIS 8823, at *5-6 (S.D.N.Y.

May 17, 2002). In Khamsiri, the district court found that there was
"sufficient indicia of the possibility of a common policy or plan ... to meet
the minimal burden plaintiff faces at this stage of the litigation" where, in
addition to the testimony of the named plaintiff, the three restaurants
shared signage, an entrance, and an address. 2012 WL 1981507, at *1 n.l.
Zhuo has similarly supported his motion with specific facts, which, if
true, support the existence of a common policy. Specifically, he avers that
the Szechuan Gourmet restaurants (1) operate under the same Chinese
trade name and have the same English name, Szechuan Gourmet; (2) are
owned by the same person; (3) share one general manager; and (4) freely
transfer employees among the restaurants. (Zhuo Deel. <JI 2; Zhuo Suppl.
Deel. <JI<JI 1-2.) For each purported violation, Zhuo describes either
observing that violation as to other employees or being told about the
same violation by one or more coworkers transferred from the other
Szechuan Gourmet locations. (Zhuo Deel. <JI<JI 3-5, 7-8, 11.) Zhuo's "sworn

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statements establish the basis of [his] knowledge with specific facts," as
defendants' "rotation of personnel among corporate Defendants ...
enabled [him] to meet and speak to employees at the other New York
restaurants." Santana v. Fishlegs, LLC, No. 13-Cv-1628, 2013 WL 5951438, at
*4 (S.D.N.Y. Nov. 7, 2013). 4
Defendants' reliance on Morales v. Plantworks, Inc., No. 05-Cv-2349,
2006 WL 278154 (S.D.N.Y. Feb. 2, 2006) is unavailing. There, the district
court denied the conditional certification motion because the affidavit and
exhibits the plaintiffs submitted made "no reference to any ... employee
other than [the named] plaintiffs, and they ma[d]e no allegations of a
common policy or plan to deny plaintiffs overtime." Id. at *2. By offering
only "a conclusory allegation in their complaint," the plaintiffs in that
litigation had failed to meet their minimal burden to show that they were
similarly situated to putative collective members. Id. at *3.
Bernard v. Household International, Inc., 231 F. Supp. 2d 433 (E.D. Va.

2002) is also inapposite. In Bernard, the district court found that the
plaintiffs had failed to show that there were similarly-situated employees
in offices outside of the state where the plaintiffs worked because the
plaintiffs made no "specific allegations regarding practices in other offices
... and [there was] no indication that the problems alleged through first-

Defendants have failed to submit any factual evidence in opposition to plaintiff's
motion apart from attaching pictures of separate websites for three of the restaurants.
Even if the Court were to credit defense attorney's unsupported assertions that the
restaurants are separate entities, it would only prove that there is a factual dispute as
to the common ownership of the restaurants, which is not an issue before the Court at
the conditional certification stage. See Lynch, 491 F. Supp. 2d at 368; see also Lamb v.
Singh Hospitality Grp., Inc., No. 11-Cv-6060, 2013 WL 5502844, at *4 (E.D.N.Y. Sept. 30,
2013) ("While Defendants argue that each of the restaurants is distinct, Plaintiffs have
demonstrated that there are issues of fact regarding whether Defendants operate as a
single employer ... [which] should be determined following discovery, at the second
stage of FLSA collective action certification."). The Court will decide if the collective
plaintiffs are indeed similarly situated based on the facts in the record at the time of
the motion for final certification. See Myers, 624 F.3d at 555.
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hand knowledge in the two Virginia offices exist[ed] elsewhere." Id. at 43536. Here, Zhuo spoke with coworkers transferred from the other New
York locations, and based on those conversations and his own personal
observations, he declares under penalty of perjury that other tipped
employees at all four Szechuan Gourmet restaurants worked more than
ten hours a day and were neither paid overtime nor compensated at the
prevailing minimum wage. (Zhuo Deel.<[<[ 2-5, 7-8, 11.) As "[l]eniency in
favor of Plaintiff[] at this stage comports with the spirit of the two-step
approach," the Complaint and Zhuo' s declarations are sufficient to meet
the "'low standard of proof' at th[is] first step." Santana, 2013 WL 5951438,
at *4 (quoting Myers, 624 F.3d at 555).

B. Court Authorization of Notice and Limited Discovery
Zhuo also seeks approval of the proposed notice attached to his
motion. (See Notice of Pendency of Lawsuit Regarding Wages, Ex. 1 to
Dkt. No. 33.) Although it is "well settled that courts may authorize notice
when the Plaintiff has demonstrated that he and potential plaintiffs are
similarly situated," "[n]either the statute, nor other courts, have
specifically outlined what form court-authorized notice should take nor
what provisions the notice should contain." Fasanelli, 516 F. Supp. 2d at
322-23. The contents of that notice are left to the trial court's discretion.
See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).

At the pre-trial conference on February 11, the Court suggested
various modifications to plaintiff's proposed notice and consent form. The
parties are directed to meet and confer and submit an agreed-upon notice
and consent form on or before April 15, 2015. If the parties cannot agree
upon a proposed notice, defendants may submit a letter setting forth its
objections to plaintiff's revised notice or submit an alternative version to
the Court. As stated at the February 11 conference, the Court will require
that the notice and consent form be sent to putative collective members in
both English and Chinese, see, e.g., Cuzco v. Orion Builders, Inc., 477 F. Supp.
2d 628, 635 (S.D.N.Y. 2007), and be posted in the Szechuan Gourmet

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restaurants where putative collective members are employed, see, e.g.,
Sherrill v. Sutherland Global Servs., Inc., 487 F. Supp. 2d 344, 351 (W.D.N.Y.

2007).
The Court also grants plaintiff's request for the discovery of contact
information of putative collective members to the extent plaintiff seeks the
names, telephone numbers, email addresses, mailing addresses, and
employment dates of all covered employees. The Court denies plaintiff's
request for the social security numbers of potential collective members, as
there is no current need for that information. See, e.g., Fasanelli, 516 F.
Supp. 2d at 324.
IV. CONCLUSION
Because plaintiff has proffered a sufficient factual nexus between
himself and the putative collective to determine that they are indeed
similarly situated for purposes of this motion, his motion for conditional
certification of a FLSA collective action is granted.
Dated: New York, New York
April l, 2015
SO ORDERED:

A
Sidn

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