19-78(L)
Li v. Chinatown Take-Out, Inc.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 7th day of May, two thousand twenty.

        PRESENT: GUIDO CALABRESI,
                         RICHARD C. WESLEY,
                         RICHARD J. SULLIVAN,
                                 Circuit Judges.
        ------------------------------------------------------------------
        SHANFA LI, on behalf of himself and others
        similarly situated, GUIMING SHAO,

                         Plaintiffs-Appellants-Cross-Appellees,

                   v.                                                        Nos. 19-78-cv,
                                                                             19-2628-cv

        CHINATOWN TAKE-OUT INC., DBA CHINA
        TOWN TAKE OUT, YECHIEL MEITELES,
                       Defendants-Appellees-Cross-Appellants.
      ------------------------------------------------------------------

      FOR PLAINTIFFS-APPELLANTS-                       AARON B. SCHWEITZER (John Troy
      CROSS-APPELLEES:                                 on the brief), Troy Law, PLLC, New
                                                       York, NY.

      FOR DEFENDANTS-APPELLEES-                        BERNARD WEINREB, Spring Valley,
      CROSS-APPELLANTS:                                NY.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Judith C. McCarthy, M.J.).

      UPON        DUE       CONSIDERATION,                  IT     IS      HEREBY   ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Plaintiffs-Appellants-Cross-Appellees Shanfa Li and Guiming Shao

(“Plaintiffs”) appeal from a judgment of the United States District Court for the

Southern District of New York (McCarthy, M.J.), following a bench trial in which

the court awarded Plaintiffs damages on their Fair Labor Standards Act (“FLSA”)

and New York Labor Law (“NYLL”) claims against their employers, Chinatown

Take-out Inc. and Yechiel Meiteles (“Defendants”). 1 In their complaint, Plaintiffs




1Under 28 U.S.C. § 636(c), the parties consented to have the magistrate judge conduct all
proceedings, including trial, in the case.

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alleged, among other things, that Defendants failed to pay the minimum wage and

overtime, and that they failed to provide wage notices and wage statements as

required by state law.     Plaintiffs appeal the district court’s findings as to the

amount of work they performed without compensation, as well as the district

court’s award of $2,500 in statutory damages for Defendants’ violation of the

NYLL’s wage notice requirements. Defendants cross-appeal, challenging the

court’s determinations regarding Plaintiffs’ claims for straight time wages – i.e.,

the non-overtime hours Plaintiffs worked but for which they were not paid – and

its findings regarding the length and compensability of Plaintiffs’ mealtimes.

Defendants also dispute the court’s calculation of straight time and overtime

damages and its denial of Defendants’ Rule 60(b)(3) motion. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal, which we note only to the extent necessary to explain

our decision.

   I.      Credibility Determinations Regarding Plaintiffs’ Compensable Hours

        “Following a bench trial, we set aside findings of fact only when they are

clearly erroneous, and we give due regard to the trial court's credibility

determinations.” Design Strategy, Inc. v. Davis, 

, 300 (2d Cir. 2006)


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(internal quotation marks omitted). “The ‘clearly erroneous’ standard applies

whether the findings are based on witness testimony, or on documentary

evidence, or on inferences from other facts.” Diesel Props S.r.l. v. Greystone Bus.

Credit II LLC, 

, 52 (2d Cir. 2011). “[W]here there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.”

marks omitted).

      Plaintiffs argue that the court failed to properly apply the burden-shifting

framework from Anderson v. Mt. Clemens Pottery Co., 

(1946), when it

determined that Plaintiffs did not work on Jewish holidays and did not work past

8:00 p.m. on days that they allege they worked until 10:00 p.m. The court,

however, was entitled to credit Defendants’ testimony over Plaintiffs’ recollection

and determine that as to these issues, “[Plaintiffs’] testimony did not sufficiently

show the amount and extent of their claimed work.” Special App’x at 34; see Tho

Dinh Tran v. Alphonse Hotel Corp., 

, 31 (2d Cir. 2002), overruled on other

grounds by Slayton v. Am. Express Co., 

(2d Cir. 2006). Accordingly, we

find no clear error in the district court’s analysis.

      Similarly, we reject Defendants’ conclusory challenges to the district court’s

credibility determinations relating to payment of straight time wages and details


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about mealtime. Defendants argue that Plaintiffs’ testimony was so “totally

unbelievable . . . that it was unreasonable for the court to accept any of their

testimony,” including Plaintiffs’ claims that they were not paid their promised

wages.      Defendants’ Br. at 17–19.     The record, however, does not support

Defendants’ view, and the district court’s decision was not clearly erroneous.

         As to Plaintiffs’ mealtimes, “if [an employee] is required to perform any

duties, whether active or inactive, while eating,” he is not “completely relieved”

from duty, and the meal period is compensable. 29 C.F.R. § 785.19(a). The district

court considered the parties’ credibility with respect to their testimony on

mealtime and determined that Plaintiffs spent about twenty minutes eating meals,

during which time they could be required to stop eating if a task needed

completion.      Given that “[w]e are not allowed to second-guess the court’s

credibility assessments,” we do not find the district court’s findings to be clearly

erroneous. Diesel Props 

.

   II.      Calculation of Damages

         Each party challenges certain aspects of the district court’s calculation of

damages. We find the arguments unpersuasive and affirm the award. First, we

reject Defendants’ argument that the district court erred in calculating the


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damages Plaintiffs are owed for unpaid straight time. Defendants’ conclusory

assertions provide us no reason to disturb the district court’s award of damages

under the NYLL for Defendants’ violations of section 191, a substantive provision

of Article 6 of the NYLL.

      We likewise reject Defendants’ arguments regarding the calculation of

Plaintiffs’ overtime compensation. Under the FLSA and the NYLL, employers

must pay a wage premium of one-and-one-half times the regular rate for hours

worked in excess of forty per week. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2.

Defendants urge that to find the regular rate of pay, the district court should have

divided the weekly wage by 48, the number of hours it found that Plaintiffs

worked.    While “the applicable damages measurement” is a legal question

reviewed de novo, “the amount of recoverable damages is a question of fact”

reviewed for clear error. Bessemer Tr. Co. v. Branin, 

, 85 (2d Cir. 2010)

(internal quotation marks omitted). Here, the district court found, among other

things, that Defendants failed to “offer any credible evidence” of an agreement or

understanding that Plaintiffs’ wages were intended to compensate more than forty

hours a week. Special App’x at 16. Upon review of the record and giving due

regard to the court’s credibility determinations, we find no clear error in this


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determination.    Further, because Plaintiffs were not compensated for their

overtime hours, the court properly concluded that Plaintiffs were entitled to one-

and-one-half times their regular rate of pay, “calculated by dividing the

employee’s total weekly earnings . . . by the lesser of 40 hours or the actual number

of hours worked by that employee during the work week.” 12 N.Y.C.R.R. § 146-

3.5(b). Accordingly, Defendants’ proposed method of calculation is inapplicable.

      Plaintiffs, for their part, claim that the district court erred in calculating the

damages owed to Shao for Defendants’ violations of NYLL § 195’s wage notice

requirement. Specifically, Plaintiffs argue that the district court should not have

capped statutory damages at $2,500 – the maximum provided by the NYLL in 2011

when Shao began working for Defendants – since Shao continued to work until

after February 27, 2015, when the NYLL was amended to increase the maximum

statutory damages for wage notice violations to $5,000. Upon due consideration

of the parties’ arguments, we see no reason to apply the amendment retroactively

and therefore affirm the award.

   III.   Rule 60(b)(3) motion

      Finally, Defendants argue that the district court should have denied

Plaintiffs damages pursuant to Federal Rule of Civil Procedure 60(b)(3) because


                                          7
Plaintiffs engaged in “fraud[,] . . . misrepresentation, or misconduct,” when they

perjured themselves at trial. In support of this claim, Defendants note that the

district court found Plaintiffs to be not credible when they testified to working on

Jewish holidays and argue that such testimony amounted to perjury.

       “The decision whether to grant a party's Rule 60(b) motion is committed to

the ‘sound discretion’ of the district court, and appellate review is confined to

determining whether the district court abused that discretion.” Stevens v. Miller,

, 67 (2d Cir. 2012). To succeed on a Rule 60(b)(3) motion, Defendants

“must show that the conduct complained of prevented [them] from fully and fairly

presenting [their] case.” State Street Bank & Tr. Co. v. Inversiones Errazuriz Limitada,

, 176 (2d Cir. 2004) (internal quotation marks omitted). Here, the fact

that Defendants introduced evidence contradicting Plaintiffs’ testimony reflects

that they were in no way prevented from presenting their case at trial. To the

contrary, “the credibility and conflicting accounts of the witnesses were subject to

full examination by the parties and were carefully considered by the court” below,

which in fact discredited Plaintiffs’ testimony about working on Jewish holidays.

Serzysko v. Chase Manhattan Bank, 

, 702 n.2 (2d Cir. 1972). Therefore,

the district court did not abuse its discretion in denying Defendants Rule 60(b)


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motion. To the extent that Defendants seek to “set aside [the] judgment for fraud

upon the [c]ourt” pursuant to Rule 60(d), that argument likewise fails, for the

simple reason that the court was not defrauded. Defendants’ Br. at 20. Although

Defendants persist in arguing that the district court’s factual findings regarding

whether Plaintiffs worked on Jewish holidays must have amounted to a finding of

perjury, the district court made no such determination. Nor have Defendants

identified any authority for the proposition that a court must set aside a judgment

in any case in which it endorses less than one hundred percent of the plaintiff’s

testimony. Accordingly, the district court did not abuse its discretion in denying

Defendants’ motion to set aside the judgment.

                                  *      *      *

      We have considered the parties’ remaining arguments on appeal and

conclude that they are without merit. For the foregoing reasons, the judgment of

the district court is AFFIRMED.

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




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