19-1894-cv
Wang v. Happy Hot Hunan Rest., 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 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:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
            GERARD E. LYNCH,
                        Circuit Judges.
_____________________________________________________

JIXIANG WANG, on behalf of himself and others similarly situated,

                Plaintiff-Appellant,

                v.                                                  19-1894-cv

HAPPY HOT HUNAN RESTAURANT, INC.,
d/b/a HAPPY HOT HUNAN, YUNCHOU LIU
a/k/a YUN CHOU LIU, YING LIU, AND CAIFA ZOU,

            Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:         Aaron Schweitzer, Troy Law, PLLC (John Troy, on the brief),
                                 Flushing, N.Y.

Appearing for Appellee:          Bingchen Li, Law Office of Z. Tan, PLLC, Flushing, N.Y.

Appeal from the United States District Court for the Southern District of New York (Abrams, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
       Jixiang Wang appeals from the May 31, 2019 judgment of the United States District
Court for the Southern District of New York (Abrams, J.) dismissing his complaint seeking
damages under the Fair Labor Standards Act and New York labor law after finding that Wang
was an exempt employee. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         “On appeal from a bench trial, conclusions of law — as well as mixed questions of law
and fact — are reviewed de novo, while findings of fact are reviewed for clear error.” Atl.
Specialty Ins. Co. v. Coastal Envt’l Grp., Inc., 945 F.3d 53, 63 (2d Cir. 2019). “Under the clear
error standard, we may not reverse a finding even though convinced that had we been sitting as
the trier of fact, we would have weighed the evidence differently.” Id. (internal quotation marks,
brackets, and citation omitted). “Rather, a finding is clearly erroneous only if although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks and citation
omitted).

        The Fair Labor Standards Act, which requires employers to pay their employees at a “one
and one-half times the regular rate at which [the employee] is employed” for each hour worked
in excess of forty hours in a single week. 29 U.S.C. § 207(a)(1). The requirement does not apply,
however, with respect to certain categories of employees, including those that are “employed in a
bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1). The “bona fide executive” exemption is
an affirmative defense on which the defendant bears the burden of proof, see Corning Glass
Works v. Brennan, 417 U.S. 188, 196-97 (1974), and is narrowly construed against the employer,
see Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir. 2002).

         Here, the district court concluded that Wang was an exempt employee based on
testimony offered during a three-day bench trial. On appeal, Wang primarily challenges the
district court’s fact finding and credibility determinations. Nothing Wang points to, however,
demonstrates that the district court committed clear error in its fact finding. Indeed, the majority
of Wang’s arguments regarding the district court’s fact finding are essentially complaints about
the district court’s credibility findings. In determining whether factual findings are clearly
erroneous, this Court “must give due regard to the trial court's opportunity to judge the
witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). When the district court sits as trier of fact, the
judge is “entitled, just as a jury would be, to believe some parts and disbelieve other parts of the
testimony of any given witness.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d
42, 52 (2d Cir. 2011) (citation omitted). As the record evidence clearly supports the district
court’s findings of fact, and because we find no error of law.

        In his reply brief and at oral argument, Wang also argued that the district court erred in
relying on testimony discussing his authority during the latter period of his employment to make
findings about the scope of his duties throughout his employment. Wang failed to make these
arguments in his principal brief, and thus they are waived. . McCarthy v. Sec. & Exch. Comm’n.,
406 F.3d 179, 186 (2d Cir. 2005). Regardless, the district court specifically rejected this
argument, citing testimony from defendant Yunchou Liu that Wang held the same authority from
the beginning of his employment. As it was for the district court to judge the credibility of the
witnesses, we cannot say that it was plain error for the court to rely on that testimony.

       We have considered the remainder of Wang’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk
