R. Acosta v. Zhao Zeng Hong , 704 F. App'x 661 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. ALEXANDER ACOSTA, Secretary of No. 15-35322
Labor,
Plaintiff-Appellee, D.C. No. 2:13-cv-0877- RSL
v.
MEMORANDUM*
ZHAO “JENNY” ZENG HONG, an
individual,
Defendant-Appellant,
and
PACIFIC COAST FOODS, INC, DBA J
& J Mongolian Grill, a Washington
corporation; J & J COMFORT ZONE,
INC, DBA Spa Therapy,
Defendants.
R. ALEXANDER ACOSTA, Secretary of Nos. 15-35323
Labor,
Plaintiff-Appellee, D.C. No. 2:13-cv-0877- RSL
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
PACIFIC COAST FOODS, INC, DBA J
& J Mongolian Grill, a Washington
corporation; J & J COMFORT ZONE,
INC, DBA Spa Therapy,
Defendants,
and
HUANG “JACKIE” JIE, an individual,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted July 10, 2017
Seattle, Washington
Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,** District
Judge.
These are appeals from a judgment entered on a jury verdict in an action
brought by the Secretary of Labor under §§ 16(c) and 17 of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 216(c), 217.
**
The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
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Appellants Huang Jie and Zhao Zeng Hong1 owned and operated J&J
Mongolian Grill (the “Restaurant”) and Spa Therapy (the “Spa”). In 2012,
following an investigation, the Department of Labor (the “Department” or
“Appellee”) brought suit for violations of the FLSA, alleging that Appellants failed
to pay their employees a minimum wage and overtime, failed to keep adequate
records, and retaliated against employees who cooperated with the Department’s
investigation. After a four-day trial, the jury returned a verdict for the Department
and awarded $652,859.62 in back wages. After the jury determined that the
violations were willful and not in good faith, the district court doubled the damages
award pursuant to the FLSA’s liquidated damages provision. These appeals
followed.
On appeal, Appellants challenge the jury instructions, the special verdict
form, and the district court’s submission of the questions of willfulness and good
faith to the jury. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. Appellants raise two distinct challenges to the jury instructions. First,
they argue that the district court erred by not requiring the jury to separately
determine Huang and Zhao’s liability with respect to the Restaurant employees, on
1
These appeals have been consolidated for argument and decision.
3
the one hand, and the Spa employees, on the other. Second, Appellants challenge
the instruction given on the Department’s retaliation claim. Appellants failed to
object in the trial court to any of the instructions they now contend were erroneous.
A. We review for plain error where, as here a party in a civil case
fails to preserve an objection. C.B. v. City of Sonora, 769 F.3d 1005, 1016 (9th
Cir. 2014) (en banc). When reviewing civil jury instructions for plain error, we
consider “whether (1) there was an error; (2) the error was obvious; and (3) the
error affected substantial rights.” Id. at 1018 (citation omitted). The plain error
standard is more demanding in civil cases than it is in criminal cases. See id. at
1018 n.9. And, critically, “the decision to correct a plain error [in the civil context]
is discretionary.” Id. at 1018. We exercise this discretion “only if review is
needed to prevent a miscarriage of justice, meaning that the error seriously
impaired the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1019 (citation and internal quotation marks omitted).
B. Appellants first contend that the district court erred by not
instructing the jury to separately determine Huang and Zhao’s respective liability
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as to the Restaurant employees and the Spa employees.2 Appellants assert that this
error infected both the jury instructions and the special verdict form.
As a preliminary matter, because Appellants failed to challenge the special
verdict form at trial, this portion of their argument is waived. See Yeti by Molly,
Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir. 2001) (citing Home
Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995)).
Appellants failure to object is made all the more glaring because, during trial, the
district court asked Appellants if the special verdict form’s language – in
particular, its treatment of Zhao’s status as an “employer” – was adequate. Far
from objecting to the language, Appellants agreed the language was acceptable.
Appellants’ challenge to the jury instructions also fails. First, Appellants
stipulated that (1) Huang was an “employer” for purposes of the FLSA, see 29
U.S.C. § 203(d) (defining “employer”), and (2) the Restaurant and the Spa
operated as an “enterprise” under the FLSA, wherein “related activities” were
2
At oral argument, Appellants urged that we review this issue de novo,
relying on Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997), wherein we held
that “[w]hether an entity is a ‘joint employer’ under the FLSA . . . is a question of
law.” Id. at 638 (citations omitted). We reject this contention because Appellants’
argument, as set forth in their briefs, does not challenge whether the Restaurant and
the Spa were “joint employers” under the FLSA. Instead, Appellants contend, for
the first time on appeal, that the jury was improperly instructed. Accordingly, we
review for plain error.
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“performed” by multiple people “for a common business purpose,” see 29 U.S.C.
§§ 203(r)-(s). These stipulations were read to the jury. The district court then
instructed the jury to decide whether Zhao was also an “employer” under the
FLSA. These instructions contemplated that the jury would consider Zhao’s role
with respect to the Restaurant employees and, separately, with respect to the Spa
employees. Ultimately, the jury concluded that Zhao was, in fact, an employer
under the FLSA, and that Appellants’ violations were willful and not made in good
faith.
In light of these stipulations, instructions, and jury determinations, there can
be little doubt that the jury understood its charge: to decide (1) whether Zhao had
sufficient contacts with the Restaurant and/or the Spa to be deemed an employer
thereof; and (2) whether Appellants willfully violated the FLSA in their operation
of the same. No further instructions were required. Accordingly, Appellants have
failed to satisfy the demanding plain error standard, and we reject this aspect of
their appeal.
C. Next, Appellants challenge the jury instructions for the
Department’s retaliation claim. To prevail on a retaliation claim under the FLSA,
the Department must establish that (1) the Restaurant and Spa employees were
engaged in “an activity protected under federal law,” (2) Zhao and Huang
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“subjected [them] to an adverse employment action,” and (3) the protected activity
was a “motivating reason” for the adverse action. See, e.g., Avila v. L.A. Police
Dep’t, 758 F.3d 1096, 1109 (9th Cir. 2014). With respect to the second element,
the district court gave the following instruction:
In order to prevail on this the Secretary must prove each of the following
facts by a preponderance of the evidence: . . . Second, that the employee
suffered some adverse employment action, such as having been fired, having
work hours reduced by the employer, or being afraid of some future action
which would negatively affect the employee, such as an unjustified negative
employment reference, if they engaged in reporting to and/or cooperating
with the Secretary or other enforcement agency. . . .
(Emphasis added.) Appellants contend that this instruction is erroneous because it
suggests that “‘being afraid of some future action’ could constitute an adverse
employment action.” Again, Appellants failed to object to this instruction in the
trial court.
We have already held that the FLSA’s anti-retaliation provision protects
workers against threats of future physical harm. Ford v. Alfaro, 785 F.2d 835,
841–42 (9th Cir. 1986) (holding that the owner committed “clear violation of
section 15(a)(3)” when he “threatened [plaintiff] with serious bodily harm”). We
see no reason why the plain language of that provision cannot be read to protect
against threats of other kinds of harm (e.g., discharge or loss of benefits),
especially given that we have held that being “free from threats of retaliatory
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discharge” is necessary for the FLSA to “function effectively.” Lambert v.
Ackerley, 180 F.3d 997, 1005 n.3 (9th Cir. 1999) (en banc). Such “enforcement
needs,” as well as the FLSA’s “remedial and humanitarian” purpose, require us to
adopt an interpretation of the FLSA that provides “broad rather than narrow
protection to the employee.” Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 13 (2011) (quoting Tenn. Coal, Iron & R.R. v. Muscoda Local No. 123,
321 U.S. 590, 597 (1944)).
Furthermore, even if we accept Appellants’ premise that the instruction was
erroneous, any such error was harmless. The evidence in the record makes clear
that Appellants went beyond merely threatening employees with future disciplinary
action. In particular, one employee testified that her hours were reduced after she
refused to falsify time sheets at Appellants’ direction, and that she was ultimately
fired for refusing to testify favorably on Appellants’ behalf. On this record and
under plain error review, we cannot find that the jury instructions, as given,
amount to a “miscarriage of justice.” City of Sonora, 769 F.3d at 1019.
Accordingly, we reject Appellants’ challenge to the jury instructions for the
retaliation claim.
2. In their final argument, Appellants contend that the district court erred
by asking the jury to determine, as part of the special verdict form, whether Huang
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and Zhao willfully violated the FLSA or, instead, if they inadvertently did so in
good faith. Appellants suggest that a finding of error is compelled by the text of
the FLSA’s liquidated damages provision, 29 U.S.C. § 260. We disagree. To be
sure, § 260 provides that it is the court that determines whether liquidated damages
are appropriate. However, nothing in the language of that section – or, for that
matter, of any other provision of the FLSA of which we are aware – prohibits a
district court from requesting the jury’s view on these questions, especially if, as
here, the court is merely asking for an advisory verdict.
In any event, even assuming, without deciding, that the district court erred in
seeking an advisory verdict, the error is harmless. The record is replete with
evidence that Appellants actively worked to undermine and obstruct the
Department’s investigation. This evidence undermines Appellants’ claims of good
faith and, in fact, confirms the district court’s conclusion that their FLSA
violations were willful. We therefore reject Appellants’ final argument.
• ! •
In each of these appeals, the judgment of the district court is
AFFIRMED.
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