De Jesus et al v. Empire Szechuan Noodle House Inc. et al
Filing
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OPINION AND ORDER: re: 36 MOTION for Summary Judgment . filed by Felix De Jesus. For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff is entitled to summary judgme nt on his contention that his pay statements failed to comply with the NYLL's notice and record-keeping requirements. Plaintiff is entitled to summary judgment on his contention that Defendants Empire Szechuan Noodle House, Inc. and Ah Fong C hang qualify as his employers for purposes of his FLSA and NYLL claims. Plaintiffs motion for summary judgment is denied in all other respects. The parties are directed to confer regarding trial dates and to submit a joint letter by May 15, 2019, t hat (1) states whether either party demands a jury trial, (2) estimates the length of trial, and (3) proposes dates within the next six months for a trial. The Clerk of Court is directed to close the motion at Docket Number 36. SO ORDERED (Signed by Judge J. Paul Oetken on 4/24/2019) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FELIX DE JESUS,
Plaintiff,
18-CV-1281 (JPO)
-vOPINION AND ORDER
EMPIRE SZECHUAN NOODLE
HOUSE INC., et al.,
Defendants.
J. PAUL OETKEN, District Judge:
Plaintiff Felix De Jesus brings this wage-and-hour case against Defendants Empire
Szechuan Noodle House Inc., Julie S.Y. Chen, and Ah Fong Chang, alleging violations of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et. seq., and the New York Labor Law
(“NYLL”). (Dkt. No. 32 (“FAC”) ¶¶ 6–8, 24–45.) Before the Court now is Plaintiff’s motion
for summary judgment. (Dkt. No. 26.) For the reasons that follow, Plaintiff’s motion is granted
in part and denied in part.
I.
Background
A.
Factual Background
The following facts are drawn from the parties’ Local Rule 56.1 statements (see Dkt. No.
47 (“SUF”)) and are not subject to genuine dispute unless otherwise noted.
Defendant Empire Szechuan Noodle House, Inc. is a New York-based corporation that
runs a restaurant in New York City. (SUF ¶ 1.) Defendant Ah Fong Chang has owned and
operated the restaurant continuously since 2006, with the exception of an indeterminate period of
time during which the restaurant was run by Chang’s daughter, Defendant Julie S.Y. Chen.
(SUF ¶ 2–3; see also Dkt. No. 38-1 at 6:9–7:13, 9:15–25.) Chang resumed full responsibility for
the operation of the restaurant by 2012. (Dkt. No. 38-1 at 7:25–8:6.) At all relevant times,
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Chang retained the authority to hire and fire the restaurant’s employees and was in charge of
maintaining the restaurant’s employment records. (SUF ¶¶ 4, 7.) The parties dispute the extent
to which Chang exercised authority over employee compensation and work schedules at the
restaurant. (SUF ¶¶ 5–6.)
Plaintiff Felix De Jesus worked at Defendants’ restaurant as a cook from at least January
2012 to November 2017, with the exception of one approximately four-month period during
which Plaintiff worked at a different restaurant. (SUF ¶ 9; Dkt. No. 46-9.) During his time
working at Defendants’ restaurant, De Jesus was scheduled to work 49.5 hours per week. (SUF
¶ 10.) The parties do not dispute that De Jesus would sometimes work one to two hours beyond
his scheduled shifts, and that he would do so once or twice per month. (SUF ¶ 11–12.) But the
parties dispute both the frequency with which De Jesus’s number of hours of work per week
would exceed his scheduled 49.5 hours, and whether De Jesus was paid overtime and “incentive”
compensation for any additional hours worked. (Id.; Compare Dkt. No. 38-2 ¶¶ 3–4, 6 with Dkt.
Nos. 38-1 at 23:17–24:3 and 46-1 ¶¶ 6, 9.) The parties also dispute whether De Jesus received a
fixed salary or hourly compensation. (SUF ¶¶ 15, 19.)
B.
Procedural Background
De Jesus commenced this action on February 13, 2018 by filing a complaint against
Defendants Empire Szechuan Noodle House, Inc. and Julie S.Y. Chen. (Dkt. No. 1.) De Jesus
filed the operative First Amended Complaint on August 29, 2018, this time also asserting claims
against Defendant Ah Fong Chang. (Dkt. No. 32.) Before the Court now is De Jesus’s motion
for summary judgment. (Dkt. No. 36.) The motion has been fully briefed (see Dkt. Nos. 37–39,
46–48), and the Court is now prepared to rule on it.
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II.
Legal Standard
Summary judgment is appropriate when “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). A fact is
material if it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine whenever,
considering the record as a whole, a rational jury could find in favor of the non-moving party.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
In reviewing a motion for summary judgment, a court must consider the evidence “in the
light most favorable to the non-moving party and draw all reasonable inferences in its favor.”
Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995). “It is well established that ‘[c]redibility
assessments, choices between conflicting versions of the events, and the weighing of evidence
are matters for the jury, not for the court on a motion for summary judgment.’” Curry v. City of
Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) (alteration in original) (quoting Fischl v. Armitage,
128 F.3d 50, 55 (2d Cir. 1997)).
III.
Discussion
De Jesus moves for summary judgment on the following claims: (1) his FLSA and NYLL
overtime claims; (2) his NYLL spread-of-hours claims; and (3) his NYLL wage-and-hour notice
and wage-statement claims. Six specific issues are before the Court on this motion: (1) whether
Defendants failed to pay De Jesus overtime compensation as required by the FLSA and the
NYLL; (2) whether De Jesus is entitled to summary judgment on his spread-of-hours claims
under the NYLL; (3) whether De Jesus is entitled to summary judgment on his wage-and-hournotice claims and wage-statement claims under the NYLL; (4) whether De Jesus is entitled to
liquidated damages under the FLSA and the NYLL; (5) whether De Jesus’s FLSA claims are
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subject to a three-year statute of limitations; and (6) whether each Defendant named in this suit
may be held jointly and severally liable to De Jesus as “employers” within the meaning of the
FLSA and the NYLL. Each of De Jesus’s contentions is addressed in turn.
A.
Unpaid Overtime Compensation
De Jesus moves for summary judgment on the contention that Defendants failed to
provide him with proper overtime compensation as required by the FLSA and the NYLL. (Dkt.
No. 38 at 2–5.)
The FLSA provides that, subject to certain exceptions not relevant here, “no employer
shall employ any of his employees . . . for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the hours above specified at a
rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C.
§ 207(a)(1). When an employee is provided a weekly salary, “the regular hourly rate of pay, on
which time and a half must be paid, is computed by dividing the salary by the number of hours
which the salary is intended to compensate.” 29 C.F.R. §778.113(a). “[T]here is a rebuttable
presumption that a weekly salary covers 40 hours; the employer can rebut the presumption by
showing an employer-employee agreement that the salary cover a different number of hours.”
Moon v. Kwon, 248 F. Supp. 2d 201, 207 (S.D.N.Y. 2002) (quoting Giles v. City of New York, 41
F. Supp. 2d 308, 317 (S.D.N.Y.1999)).
De Jesus’s NYLL claims are subject to a similar standard. See N.Y. Comp. Codes R. &
Regs. tit. 12, §§146-1.4, 146-3.5(b). However, some courts have held that for purposes of NYLL
claims brought by employees in the hospitality industry, a plaintiff’s weekly salary is required to
be construed to represent compensation for a forty-hour week, irrespective of whether a
defendant can satisfy the Giles burden-shifting framework. Quiroz v. Luigi’s Dolceria, Inc., No.
14 Civ. 871, 2016 WL 2869780, at *4 (E.D.N.Y. May 17, 2016).
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The parties do not dispute that De Jesus regularly worked at least 49.5 hours per week at
Defendants’ restaurant, which would presumptively entitle him to at least 9.5 hours of overtime
pay per week. (SUF ¶ 10.) But the parties genuinely dispute whether De Jesus was paid a fixed
salary for these 49.5 hours, or whether he was compensated hourly and in accordance with the
number of actual hours he worked per week. (Compare Dkt. No. 38-2 ¶ 4 (De Jesus testifying
that he was paid a set salary regardless of hours worked) with Dkt. No. 46-1 ¶¶ 4, 9 (Defendant
Chang testifying that she paid De Jesus an hourly wage); see also generally Dkt. No. 46-6
(collecting De Jesus’s pay statements indicating that De Jesus’s wages varied week-to-week and
providing separate line items for 40-hour workweek and overtime pay).) If a jury were to credit
Defendants’ evidence reflecting that De Jesus’s hourly pay and overtime wages were calculated
on a weekly basis in accordance with the actual number of hours he had worked that week, that
evidence would be sufficient to show that Defendants compensated De Jesus for any overtime
work as required by the FLSA and the NYLL.
De Jesus’s lone argument for summary judgment on his FLSA and NYLL overtime
claims is that his weekly salary must be presumed to cover only forty hours per week, and that he
was thus necessarily not compensated at time and a half for any additional hours worked. (Dkt.
No. 38 at 3–4.) Given that there remains a genuine factual dispute with respect to whether De
Jesus was in fact compensated on an hourly basis rather than on a salaried basis and whether he
was provided overtime compensation for any hours worked per week above forty, he cannot be
granted summary judgment on this basis.
B.
Spread of Hours
De Jesus moves for summary judgment on the contention that Defendants failed to
provide him with spread-of-hours compensation as required by the NYLL. (Dkt. No. 38 at 5–6.)
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“New York law requires [food services] industry employers to provide an additional
hour’s pay, at the basic minimum hourly wage rate before allowances, for any day in which the
employee’s spread of hours[—]defined as the interval between the beginning and end of the
workday[—]exceeds 10 hours.” Moon, 248 F. Supp. 2d at 235 (internal citation and quotation
marks omitted); see also N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6.
The parties do not dispute that De Jesus was regularly scheduled to work precisely ten
hours per day for four days per week. (SUF ¶ 10; see also Dkt. No. 38-3 (collecting sampling of
De Jesus’s work schedules).) However, the parties genuinely dispute the frequency with which
De Jesus worked in excess of these ten hours. (SUF ¶¶ 11–12; Compare Dkt. No. 38-2 ¶ 6 (De
Jesus testifying that he regularly worked more than ten hours per day) with Dkt. No. 38-1 at
23:17–24 and Dkt. No. 46-1 ¶ 4 (Defendant Chang testifying that De Jesus rarely worked in
excess of his scheduled hours).) The parties also genuinely dispute whether and to what extent
De Jesus was provided with additional compensation in the form of “incentive” pay in
circumstances where he was called upon to work additional hours. (Compare Dkt. No. 38-2 ¶ 6
(De Jesus testifying that he regularly worked more than ten hours per day and did not receive
“spread of hour payment” when he did so) with Dkt. No. 38-1 at 23:17–24:3 (Defendant Chang
testifying that she always paid De Jesus more when he arrived to work early such that his
workday would be 11 hours) and Dkt. No. 46-1 ¶ 9 (Defendant Chang testifying that she would
at times provide De Jesus a form of “incentive” compensation for additional work); see also Dkt.
No. 46-6 (collecting De Jesus’s pay statements indicating De Jesus regularly received “overtime
& incentive” pay (emphasis added)).) The record presents triable issues as to the frequency with
which De Jesus worked more than ten hours per day, and whether when De Jesus did so, the
additional “incentive” pay Defendants provided to him was sufficient for purposes of NYLL
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spread-of-hours compensation. Crediting as true Defendants’ evidence showing that De Jesus
rarely worked in excess of ten hours in a given day, and that in those circumstances in which he
did he received additional “incentive” pay, the Court cannot conclude that no reasonable juror
could find for Defendants on De Jesus’s spread-of-hours claims.
C.
Wage Statement Claims
De Jesus moves for summary judgment on the contention that Defendants failed to
provide him with wage-and-hour notices and wage statements in the manner required by the
NYLL. (Dkt. No. 38 at 6–8.)
1.
Wage-and-Hour Notices
The NYLL requires that employers provide their employees
in writing in English and in the language identified by each employee as the
primary language of such employee, at the time of hiring, a notice containing the
following information: the rate or rates of pay and basis thereof, whether paid by
the hour, shift, day, week, salary, piece, commission, or other; allowances, if any,
claimed as part of the minimum wage, including tip, meal, or lodging allowances;
the regular pay day designated by the employer in accordance with section one
hundred ninety-one of this article; the name of the employer; any “doing business
as” names used by the employer; the physical address of the employer’s main
office or principal place of business, and a mailing address if different; the
telephone number of the employer; plus such other information as the
commissioner deems material and necessary.
New York Lab. Law § 195(1-a); see also N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.2.
Employers are required to furnish updates to any of the information stated above at least seven
days prior to any changes to that information taking effect. New York Lab. Law § 195(2).
De Jesus moves for summary judgment on the contention that the notices De Jesus
received were legally defective for inaccurately representing that De Jesus would receive an
hourly wage, while in fact De Jesus received a fixed salary. (Dkt. No. 38 at 7; see also Dkt. No.
38-5 (De Jesus’s wage-and-hour notices).) However, as the Court has already discussed, the
parties genuinely dispute whether De Jesus was paid a weekly salary or whether he was
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compensated on an hourly basis. (See, e.g., Dkt. No. 38-2 ¶ 4 (De Jesus testifying that he was
paid a fixed salary regardless of hours worked); Dkt. No. 46-1 ¶¶ 4, 9 (Defendant Chang
testifying that she paid De Jesus an hourly wage); Dkt. No. 46-6 (collecting De Jesus’s pay
statements indicating his wages varied week-to-week and providing separate line items for 40hour workweek and overtime pay).) Accordingly, De Jesus cannot be granted summary
judgment on his contention that his wage notices failed to accurately document his status as a
salaried employee.
2.
Wage Statements
With respect to regular pay statements, the NYLL requires that employers
furnish each employee with a statement with every payment of wages, listing the
following: the dates of work covered by that payment of wages; name of
employee; name of employer; address and phone number of employer; rate or
rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary,
piece, commission, or other; gross wages; deductions; allowances, if any, claimed
as part of the minimum wage; and net wages. For all employees who are not
exempt from overtime compensation as established in the commissioner’s
minimum wage orders or otherwise provided by New York state law or
regulation, the statement shall include the regular hourly rate or rates of pay; the
overtime rate or rates of pay; the number of regular hours worked, and the number
of overtime hours worked.
New York Lab. Law § 195(3). De Jesus is entitled to summary judgment on his contention that
his pay statements were deficient for failing to list, among other things, the name of his
employer; the address and phone number of his employer; his rate of pay; his overtime rate of
pay; the number of regular hours worked; and the number of overtime hours worked. (See Dkt.
No. 38-4 (De Jesus’s pay statements).)
Defendants urge that viewing De Jesus’s pay statements in conjunction with his weekly
work schedules remedies some of the defects identified by De Jesus in his summary judgment
motion. (Dkt. No. 46 at 13–14; see also Dkt. No. 46-3 (De Jesus’s weekly schedules).)
However, even assuming that these documents may be viewed in conjunction for purposes of the
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NYLL wage-statement requirements, they together still fail to include all of the information
required by New York Labor Law Section 195(3), because they do not include an employer
name, phone number, and address, nor do they include De Jesus’s regular and overtime rates of
pay. (See Dkt. Nos. 38-4, 46-3.) De Jesus is therefore entitled to summary judgment on his
wage-statement claims under the NYLL.
D.
Liquidated Damages
De Jesus moves for summary judgment on the contention that Defendants are liable for
liquidated damages under the FLSA and the NYLL. (Dkt. No. 38 at 8–10.)
“Under the FLSA, a district court is generally required to award a plaintiff liquidated
damages equal in amount to actual damages.” Barfield v. N.Y.C. Health & Hosps. Corp., 537
F.3d 132, 150 (2d Cir. 2008) (citing 29 U.S.C. § 216(b)). However, “the FLSA [also] affords
district courts discretion to deny liquidated damages where the employer shows that, despite its
failure to pay appropriate wages, it acted in subjective ‘good faith’ with objectively ‘reasonable
grounds’ for believing that its acts or omissions did not violate the FLSA.” Id. (quoting 29
U.S.C. § 260). Describing the employer’s burden to defeat a prevailing FLSA plaintiff’s request
for liquidated damages as a “‘difficult one,’” the Second Circuit has required a liable employer to
show that “it took ‘active steps to ascertain the dictates of the FLSA and then act to comply with
them.’” Id. (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)). A
defendant’s failure to point to any evidence sufficient to make such a showing may warrant
awarding liquated damages at the summary judgment stage. Id. at 151.
The NYLL also allows for an award of liquidated damages, and an employer seeking to
avoid liability for liquidated damages under the NYLL is subject to the same standard as under
the FLSA. See Sun v. China 1221, Inc., No. 12 Civ. 7135, 2016 WL 1587242, at *3 (S.D.N.Y.
Apr. 19, 2016) (“[A 2009] amendment to NYLL . . . incorporated the federal standard[.]”); see
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also N.Y. Lab. Law § 198(1-a) (permitting liquidated damages “unless the employer proves a
good faith basis for believing that its underpayment of wages was in compliance with the law”).
“Liquidated damages are not available on NYLL’s wage-statement penalties.” Sun, 2016 WL
1587242, at *3.
As De Jesus has yet to establish an underlying FLSA or NYLL violation that might
entitle him to liquidated damages, the Court cannot conclude that no reasonable juror could find
any good faith basis for Defendants’ hypothetical violations that De Jesus may prove at trial.
Accordingly, De Jesus’s motion for summary judgment on his claims for liquidated damages
must be denied at this stage of the case.
E.
Statute of Limitations
De Jesus moves for summary judgment on the contention that his FLSA claims are
subject to the three-year statute of limitations. (Dkt. No. 38 at 11.)
Although De Jesus’s FLSA claims would usually be subject to a two-year statute of
limitations, his FLSA claims would be subject to a three-year statute of limitations if
Defendants’ illegal conduct constituted a willful violation of FLSA. 29 U.S.C. § 255(a). But
because De Jesus has yet to establish any FLSA violation, the Court cannot grant De Jesus
summary judgment on his contention that any violations he might prove at trial were as a matter
of law willful. De Jesus’s motion for summary judgment on his contention that his FLSA claims
are subject to the three-year statute of limitations is therefore denied.
F.
Individual Liability
De Jesus moves for summary judgment on the contention that each Defendant named in
this suit may be held jointly and severally liable to De Jesus as “employers” within the meaning
of the FLSA and NYLL. (Dkt. No. 38 at 11–13.)
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To establish liability for unpaid overtime under the FLSA, a plaintiff must establish that
the defendant was the plaintiff’s “employer.” See 29 U.S.C. § 207(a)(1). Recognizing that the
FLSA’s “statutory definitions [of ‘employer,’ ‘employee,’ and ‘employ’] sweep broadly,” the
Second Circuit has “treated employment for FLSA purposes as a flexible concept to be
determined on a case-by-case basis by review of the totality of the circumstances.” Barfield, 537
F.3d at 140, 141–42. Ultimately, “the determination of whether an employer-employee
relationship exists for purposes of the FLSA should be grounded in ‘economic reality rather than
technical concepts[.]’” Id. at 140 (quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28,
33 (1961)). The following factors may be relevant to determining whether a putative
employment relationship is sufficient to trigger FLSA liability: “whether the alleged employer
(1) had the power to hire and fire the employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate and method of payment, and (4)
maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984).
Still, the Second Circuit has consistently “reiterate[d] the necessary flexibility of the economic
realities test,” a flexibility that is needed “to ensure that the economic realities test mandated by
the Supreme Court is sufficiently comprehensive and flexible to give proper effect to the broad
language of the FLSA.” Barfield, 537 F.3d at 143.
With respect to the NYLL, “courts in this Circuit ‘have interpreted the definition of
“employer” under the New York Labor Law coextensively with the definition used by the
FLSA.’” Sethi v. Narod, 974 F. Supp. 2d 162, 188 (E.D.N.Y. 2013) (quoting Spicer v. Pier Sixty
LLC, 269 F.R.D. 321, 335 n.13 (S.D.N.Y. 2010)) (collecting cases).
The parties do not dispute that De Jesus was an employee of the restaurant owned and
operated by the corporate Defendant Empire Szechuan Noodle House, Inc. (SUF ¶¶ 1, 9), and as
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such, the Court agrees with De Jesus that as a matter of law De Jesus was an employee of
Defendant Empire Szechuan Noodle House, Inc. for purposes of his FLSA and NYLL claims.
The Court also agrees with De Jesus that the undisputed facts in the record are sufficient
to establish as a matter of law Chang’s status as his employer for purposes of the FLSA and the
NYLL. The parties do not dispute any of the facts relevant to Carter factors one and four,
namely whether Chang “had the power to hire and fire [the restaurant’s] employees” and whether
she “maintained employment records,” Carter, 735 F.2d at 12, weigh in De Jesus’s favor on this
question (see SUF ¶¶ 4, 7). With respect to Carter factor two, which concerns whether Chang
“supervised and controlled employee work schedules or conditions of employment,” Carter, 735
F.2d at 12, Defendants admitted in their answer that this was the case (Dkt. No. 35 ¶ 8), and
Defendant Chang testified at her deposition that she had the discretion to control employee work
schedules (see, e.g., Dkt. No. 38-1 at 11:4–25). Similarly, with respect to Carter factor three,
Carter, 735 F.2d at 12 (asking whether putative employer “determined the rate and method of
payment”), Defendants admitted in their answer that Chang had the authority to “determine rate
and method of pay” for employees at the restaurant (Dkt. No. 35 ¶ 8), and Chang testified to
exercising this discretion over the rates and methods of employee compensation both at her
deposition and in her declaration (see, e.g., Dkt. No. 38-1 at 22:7–24, 26:13–27:9; Dkt. No. 46-1
¶ 9). Even though other managers at the restaurant might have also exercised some discretionary
authority with respect to assigning employee schedules and determining employee compensation
(see, e.g., Dkt. No. 38-1 at 8:7–14, 13:4–9; Dkt. No. 46 ¶ 4; Dkt. No. 46-8 at 99:15–100:9,
106:5–10), no reasonable juror could find that Chang was not De Jesus’s “employer” based on
the undisputed evidence in the record and based on Defendants’ prior admissions in this case.
Cf. Barfield, 537 F.3d at 144 (concluding that “even when the historical facts and the relevant
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factors are viewed in the light most favorable to defendants, [a FLSA defendant’s] status as
[plaintiff’s employer could be] established as a matter of law” at summary judgment stage).
Finally, with respect to Defendant Julie S.Y. Chen, De Jesus’s brief identifies no facts in
the summary judgment record relevant to the question of whether she qualifies as one of De
Jesus’s employers, let alone undisputed facts sufficient to show that Chen qualifies as an
employer as a matter of law. (See Dkt. No. 38 at 11–13; see also SUF ¶ 2 (providing the only
reference to Chen in the parties’ Local Rule 56 statements); Dkt. No. 38-1 at 8:4–9:25 (testimony
from Chang describing Chen’s minimal involvement in the restaurant during the time periods
relevant to this suit).) De Jesus’s motion for summary judgment with respect Defendant Julie
S.Y. Chen’s status as De Jesus’s employer must therefore be denied.
IV.
Conclusion
For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED in
part and DENIED in part. Plaintiff is entitled to summary judgment on his contention that his
pay statements failed to comply with the NYLL’s notice and record-keeping requirements.
Plaintiff is entitled to summary judgment on his contention that Defendants Empire Szechuan
Noodle House, Inc. and Ah Fong Chang qualify as his employers for purposes of his FLSA and
NYLL claims. Plaintiff’s motion for summary judgment is denied in all other respects.
The parties are directed to confer regarding trial dates and to submit a joint letter by May
15, 2019, that (1) states whether either party demands a jury trial, (2) estimates the length of trial,
and (3) proposes dates within the next six months for a trial.
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The Clerk of Court is directed to close the motion at Docket Number 36.
SO ORDERED.
Dated: April 24, 2019
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
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