Li Ni v. Red Tiger Dumpling House Inc.
| Decision Date | 30 November 2020 |
| Docket Number | CV 19-3269 (GRB) (AKT) |
| Parties | LI NI, on his own behalf and on behalf of himself and all other persons similarly situated, Plaintiff, v. RED TIGER DUMPLING HOUSE INC d/b/a Red Tiger Dumpling House, TWO COUNTRIES DUMPLING HOUSE INC d/b/a Red Tiger Dumpling House, JUN WEN BURNS, and HAI QING LIU, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. PRELIMINARY STATEMENT
Plaintiff Li Ni ("Plaintiff") commenced this putative collective and class action on behalf of himself and all others similarly situated against corporate Defendants Red Tiger Dumpling House Inc. d/b/a Red Tiger Dumpling House and Two Countries Dumpling House, Inc. (collectively "Red Tiger") and individual Defendants Jun Wen Burns ("Burns") and Hai Qing Liu ("Liu"), (collectively with Red Tiger, "Defendants") for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law ("NYLL"). See generally Amended Complaint ("Am. Compl.") [DE 16]. Plaintiff seeks to recover for Defendants' alleged improper retention of tips, failure to pay overtime and regular wages, and other violations of applicable law. See id.
Plaintiff has moved for conditional certification as a collective action and for court-authorized notice, pursuant to § 216(b) of the FLSA. See Plaintiff's Memorandum of Law in Support of his Motion for Conditional Certification ("Pl.'s Mem.") [DE 23]; Plaintiff's Reply Memorandum of Law in Support of his Motion for Conditional Certification ("Pl.'s Reply") [DE 26]. Defendants oppose Plaintiff's motion chiefly arguing that Plaintiff has failed to demonstrate he is similarly situated to the other potential members of the collective or that these employees were subject to a common unlawful policy or plan. See generally Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Conditional Certification ( ) [DE 25]. For the reasons set forth below, Plaintiff's motion is GRANTED, in part, and DENIED, in part.
II. BACKGROUND
The following allegations are taken from Plaintiff's Amended Complaint and are assumed to be true for purposes of the instant motion. Defendants own and operate the Red Tiger Restaurant located at 1320 Stony Brook Rd., Stony Brook, New York. See Am. Compl. ¶¶ 8, 11. Defendants Burns and Zhang were responsible for hiring and firing employees, supervising and controlling employee work schedules, and determining rates and methods of pay. Id. ¶¶ 15, 12.
Plaintiff was working as a waiter for Defendants from September 15, 2015 to May 12, 2019. Id. ¶¶ 7, 22. During this time, Plaintiff regularly worked from 11 a.m. to 10:30 p.m. for 10.5 hours a day, six or seven days per week, resulting in an excess of 40 hours per week. Id. ¶¶ 28-32. From September 15, 2015 to November 2018, Plaintiff did not receive any compensation for his work. Id. ¶ 35. From December 2018 to February 2019, Plaintiff received a monthly salary of $100. Id. ¶ 36. From March 2019 through May 12, 2019, Plaintiff again didnot receive any compensation for his work. Id. ¶ 37. Instead, Plaintiff's pay consisted entirely of tips which ranged from $150 to $180 per day. Id. ¶¶ 38-39. Plaintiff asserts that he received his tips from a tip pool shared among waiters/waitresses, busgirls, and the receptionist. Id. ¶ 45. Although Defendants guaranteed that Plaintiff would receive a minimum amount of tips per day, to be raised incrementally each year, the amount of tips Plaintiff received on several occasions was less than the guaranteed amount. Id. ¶ 42. Indeed, after Defendants' receptionist quit in early 2017, Plaintiff states that he and the other waiters/waitresses began fulfilling the responsibilities of the receptionist at least three days per week. Id. ¶¶ 46, 49. On these days, Plaintiff would receive $10 in tips per day. Id. ¶ 50. Plaintiff further alleges that sometime in December 2018, Defendant Burns began misappropriating the tips by diverting them to non-tipped employees -- namely chefs -- and undercounting the amount of the tips received. Id. ¶ 51.
According to Plaintiff, Defendants did not pay him overtime compensation at the rate of one and one-half times his regular pay for hours worked in excess of 40 per week or "spread of hours" premium for shifts that lasted longer than 10 hours. Id. ¶ 56. Defendants also failed to maintain accurate records of the hours worked by Plaintiff and failed to provide Plaintiff with any wage notice or wage statements. Id. ¶ 55. Defendants never informed Plaintiff of any tip deductions toward the minimum wage. Id. ¶ 44. The Amended Complaint also asserts that there are many current and former employees of Defendants who were treated in the same manner as he was. Id. ¶¶ 20-21.
In support of the motion for conditional certification, Plaintiff has submitted his own affidavit in which he attests to certain facts relevant to the instant motion. See Affidavit of Li Ni in Support of Plaintiff's Motion for Conditional Certification ("Ni Aff.") [DE 22-5]. Within theAffidavit, Plaintiff repeats many of the same facts pleaded in the Amended Complaint regarding his own employment. Id. ¶¶ 3-38. However, he also identifies 19 current or former coworkers whom he contends were subjected to similar unlawful employment practices. Id. ¶ 39. The 19 individuals identified by Plaintiff fall into the following categories: (1) waiters/receptionists; (2) cashiers; (3) deliverymen; (4) packers; (5) dishwashers; (6) oil woks; (7) head fry woks; (8) fry woks and their helpers; (9) soup dumpling/dumpling chefs; and (10) miscellaneous kitchen staff. See id. Throughout his employment with Defendants, Plaintiff states that he "regularly observed and spoke with [his] co-workers about [their] wages and work." Id. ¶ 40. Plaintiff states that he spoke with his co-workers about their wages during their rides to and from work and at work itself. Id. ¶¶ 40-41. Plaintiff personally observed the hours worked by his coworkers because they were all transported to and from work by the Defendants at designated times and from a designation location. Id. ¶¶ 47-55. Each employee worked in excess of 40 hours per week. See id. ¶ 43.
Plaintiff identifies two individuals referred to as Xiao Zheng and Lisa, who worked from 11 a.m. to 10 p.m. -- 11 hours a day -- five or six days per week. Id. ¶¶ 62-64, 66-69. Lisa worked as the cashier and receptionist, id. ¶ 66, and Xiao Zheng worked as a waiter and receptionist, id. ¶ 59. Plaintiff found out that Xiao Zheng's pay consisted entirely of tips from the tip pool based on the conversations he had with him during their break times. Id. ¶ 65. Plaintiff identifies an individual referred to as Lao Zhu, who transported the employees to and from work and worked as the deliveryman from 10:15 a.m. to 11 p.m. for approximately 13 hours a day, seven days per week. Id. ¶¶ 78-79. Lao Zhu received a fixed monthly salary of $1,800 in addition to tips. Id. ¶¶ 83, 85. Plaintiff was familiar with Lao Zhu's wage based onconversations they had together during their breaks and because Defendant Burns complained to Plaintiff about having to pay Lao Zhu a based salary of $1,800 a month. Id. ¶¶ 82-83.
Plaintiff also identifies an individual referred to as Hunan Lao Xiang, who worked as a "miscellaneous worker in the kitchen" and filled in as the deliveryman in the rare instances that Lao Zhu was absent from work. Id. ¶¶ 87, 89. Hunan Lao Xiang generally worked from 11 a.m. to 10 p.m. for a total of 11 hours a day, six days per week unless he was filling in as the deliveryman, in which case he would work the same hours Lao Zhu worked. Id. ¶¶ 90-93. Plaintiff states that Hunan Lao Xiang was paid a fixed monthly salary of around $2,600 which Plaintiff learned about during conversations he had with Hunan Lao Xiang during their break times. Id. ¶ 95.
Plaintiff further identifies an employee from Hunan, China, who worked as the oil wok from 11 a.m. to 10 p.m. -- again for 11 hours a day -- six days per week. Id. ¶ 99. The oil wok received a fixed monthly salary between $2,500 and $2,800, which he learned about conversations he had with the oil wok the restaurant and on the company van. Id. ¶ 103. Plaintiff identifies two employees from Canton and Dungbei, China, who worked as the fry wok and fry wok helper from 10:15 a.m. to 11 p.m., for 11 hours a day, six days per week. Id. ¶¶ 43, 123, 127-28. The fry wok and fry helper received a fixed monthly salary between $3,500 and $4,000, and $2,800 to $3,300, respectively. Id. ¶¶ 121, 129. Plaintiff had conversations with the fry wok and fry wok helper about their wages and work conditions outside of the restaurant and inside the kitchen. Id. ¶¶ 120-21, 130. Plaintiff also identifies an individual referred to as Hunanese Lao Da, who he states worked as the head fry wok from 11:00 a.m. to 10:00 p.m. for 11 hours a day, six days per week. Id. ¶¶ 109-11. According to Plaintiff, Hunanese Lao Da was"first in rank" after Defendants Burns and received a monthly salary of approximately $10,000 which included her base salary of $5,000 and 10% of the total sales of the restaurant. Id. ¶¶ 114-15.
Plaintiff refers to four dishwashers but does not provide any personal identifying information about them, except for one who Plaintiff states was from Hunan, China. Id. ¶¶ 136-42. The dishwashers worked from 11 a.m. to 10 p.m. -- for 10 hours a day -- six days per week and received a fixed monthly salary between $1,500 and $1,600. Id. ¶¶ 134-35. Plaintiff states that one dishwasher was Plaintiff's neighbor and told Plaintiff about his wages. Id. ¶ 145.
Plaintiff identifies four individuals referred to as Lao Tou Zi, Chen Jie, Da Jie, and Da Ge, who worked as soup dumpling/dumpling chefs from 11 a.m. to 10 p.m. -- for 11 hours a day -- five or six days per week. Id. ¶¶ 147, 153-54,...
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