11-3674-cv
Daniels v. 1710 Realty

                           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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of September, two thousand twelve.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            RAYMOND J. LOHIER, JR.,
                              Circuit Judges.
_____________________________________________________

JOSEPH DANIELS,

                               Plaintiff-Appellant,

                         -v-                                               11-3674-cv

1710 REALTY LLC, 1710 REALTY ASSOCIATES,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:       Abdul Karim Hassan, Queens Village, NY.

Appearing for Appellee:        Patrick M. Collins, McCarter & English LLP (M. Christopher
                               Moon, on the brief), New York, NY.
Appeal from the United States District Court for the Eastern District of New York (Reyes,
M.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Joseph Daniels appeals from the August 17, 2011 findings of fact and conclusions of law
by the United States District Court for the Eastern District of New York (Reyes, M.J.) dismissing
his action, brought pursuant to the Fair Labor Standards Act (“FLSA”), for unpaid minimum and
overtime wages, and dismissing without prejudice his claims brought under N.Y. Labor Law §
191. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         “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, 469 F.3d 284, 300 (2d Cir. 2006) (citation 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, 631 F.3d 42, 52 (2d Cir. 2011). “It is within the province of the district court as
the trier of fact to decide whose testimony should be credited.” Id. (citations omitted) “The court
is also entitled, just as a jury would be to believe some parts and disbelieve other parts of the
testimony of any given witness. We are not allowed to second-guess the court's credibility
assessments.” Id. (citation omitted). “Further, where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly erroneous.” Id. (citation
omitted). “The fact that there may have been evidence to support an inference contrary to that
drawn by the trial court does not mean that the findings made are clearly erroneous.” Id.
(citation omitted). Conclusions of law are reviewed de novo. Id. at 51.

       The parties agree that 1710 Realty failed to keep records of the hours Daniels worked.
The parties also agree that the burden-shifting analysis set forth in Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680 (1946), applies. Thus, where the employer failed to keep accurate
records, “an employee has carried out his burden if he proves that he has in fact performed work
for which he was improperly compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.” Id. at 687. The
employee’s burden “is not high,” such “that it is possible for a plaintiff to meet this burden
through estimates based on his own recollection.” Kuebel v. Black & Decker Inc., 643 F.3d 352,
362 (2d Cir. 2011). Once an employee satisfies his burden, the employer may rebut with
“evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee's evidence.” Anderson, 328 U.S.
at 687-88.

         Daniels’ primary contention on appeal is that the district court erred in failing to properly
credit his testimony regarding the overtime hours he allegedly worked. We find no error in the
district court’s analysis. While Daniels is correct that a plaintiff’s burden under Anderson is

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minimal, there must be at least some credible evidence that he performed overtime work. See
Grochowski v. Phoenix Constr., 318 F.3d 80, 88–89 (2d Cir. 2003) (testimony that plaintiffs
“‘usually’ worked” certain hours and did not know if they worked all Saturdays was “only
speculation to establish what hours these plaintiffs worked” and did not “present sufficient
evidence for the jury to make a reasonable inference as to the number of hours worked by the
non-testifying employees”). At bottom, the district court simply found Daniels’ testimony too
vague to be credible – a finding well supported by even a cursory reading of Daniels’ testimony
at trial.

Moreover, Daniels relies on Kuebel to argue that the district court failed to engage in a required
“fault” analysis to determine whether the fact that defendant did not know Daniels worked on
weekends was due to its improper record keeping. That reliance is misplaced. In Kuebel, the
plaintiff argued that his employers knew he was working more than 40 hours a week, but
instructed him to not record more than 40 hours a week. 643 F.3d at 356. Nothing in Kuebel
changed the rule that “[t]o establish liability under the FLSA on a claim for unpaid overtime, a
plaintiff must prove that he performed work for which he was not properly compensated, and
that the employer had actual or constructive knowledge of that work.” Id. at 361. It is only
“once an employer knows or has reason to know that an employee is working overtime” that the
employer “cannot deny compensation simply because the employee failed to properly record or
claim his overtime hours.” Id. at 362. Nothing in the record indicates the district court’s finding
that 1710 Realty was unaware that Daniels worked Saturdays and Sundays was clearly
erroneous.

      We have examined the remainder of plaintiff’s claims and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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