Dunn v. Sederakis , 602 F. App'x 33 ( 2015 )

12-5046
Dunn v. Sederakis
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of May, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 JOHN G. KOELTL,
10 District Judge.*
11
12 - - - - - - - - - - - - - - - - - - - -X
13 AYSHEA L. DUNN,
14 Plaintiff-Appellant,
15
16 -v.- 12-5046
17
18 JOHN SEDERAKIS, SABRINA BROWN,
19 Defendants-Appellees.**
20 - - - - - - - - - - - - - - - - - - - -X
21
*
Judge John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.
**
The Clerk of Court is directed to amend the case
caption as above.
1
1 FOR APPELLANT: Chinyere Okoronkwo, New York,
2 New York.
3
4 FOR APPELLEES: Leslie B. Dubeck, Barbara D.
5 Underwood, Steven C. Wu, for
6 Eric T. Schneiderman, Attorney
7 General of the State of New
8 York, New York, New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Southern District of New York (Engelmayer,
12 J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED in part and VACATED and REMANDED in part.
17
18 Ayshea Dunn appeals from the judgment of the United
19 States District Court for the Southern District of New York
20 (Engelmayer, J.), dismissing pursuant to Federal Rule of
21 Civil Procedure 12(b)(6) Dunn’s retaliation claim under the
22 Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201
23 et seq. We assume the parties’ familiarity with the
24 underlying facts, the procedural history, and the issues
25 presented for review.
26
27 Dunn’s Second Amended Complaint alleged that her
28 supervisors retaliated against her for, among other
29 protected activities, registering oral complaints with her
30 supervisors in July and August 2008. The district court
31 dismissed the retaliation claim, holding in part that the
32 oral complaints to Dunn’s supervisors were not protected
33 activity under Section 15(a)(3) of the FLSA. On appeal,
34 Dunn challenges that holding in light of recent changes in
35 the law.
36
37 We review de novo the district court’s grant of a
38 motion to dismiss under Rule 12(b)(6), “accept[ing] as true
39 all allegations in the complaint and draw[ing] all
40 reasonable inferences in favor of the non-moving party.”
41 Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d
42 Cir. 2007).
43
44 The district court’s ruling that oral complaints to
45 supervisors are not protected activity under the FLSA relied
46 on our decision in Lambert v. Genesee Hospital, 10 F.3d 46
47 (2d Cir. 1993), which held that the FLSA “limits the cause
2
1 of action to retaliation for filing formal complaints,
2 instituting a proceeding, or testifying, but does not
3 encompass complaints made to a supervisor.” Id. at 55. In
4 the intervening time since the district court entered
5 judgment in this case, we have overruled Lambert. See
6 Greathouse v. JHS Sec. Inc., No. 12-4521-cv, slip op. at 5-6
7 (2d Cir. Apr. 20, 2015). Greathouse holds:
8
9 [A]n employee may premise a section 215(a)(3)
10 retaliation action on an oral complaint made to an
11 employer, so long as--pursuant to [Kasten v. Saint-
12 Gobain Performance Plastics Corp., 131 S. Ct. 1325
13 (2011)]--the complaint is “sufficiently clear and
14 detailed for a reasonable employer to understand it,
15 in light of both content and context, as an
16 assertion of rights protected by the statute and a
17 call for their protection.” 131 S. Ct. at 1335.
18
19 Id.
20
21 The district court thus applied our circuit’s law then
22 in effect; but its basis for dismissal may no longer be
23 sound under Greathouse. We therefore vacate the dismissal
24 of Dunn’s FLSA retaliation claim. On remand, the district
25 court should consider whether Dunn’s claim describes an oral
26 complaint that survives Greathouse and Kasten’s standard of
27 clarity and detail.1
28
1
On remand, the district court is free to revisit (or
not) Dunn’s complaint to the New York State Division of
Human Rights (“NYSDHR”). Dunn alleges that her complaint to
the NYSDHR constituted yet another protected activity, but
she urges on appeal that the district court must not look at
the face of the NYSDHR complaint itself. On a motion to
dismiss, a court may consider both: (a) documents
incorporated by reference into the complaint and
(b) unincorporated documents that are integral to the
complaint and upon which the complaint heavily relies. See
Chambers v. Time Warner Inc., 282 F.3d 147, 152–53 (2d Cir.
2002). If the district court chooses on remand to revisit
whether Dunn plausibly and specifically pled the elements of
an FLSA retaliation claim based on the NYSDHR complaint, it
may consider the content of that complaint, as it did
before.
3
1 For the foregoing reasons, and finding no merit in
2 Dunn’s other arguments, we hereby VACATE and REMAND the
3 judgment of the district court for further proceedings
4 consistent with Greathouse.
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
4