12‐4521‐cv

Greathouse v. JHS Security Inc.

1 United States Court of Appeals 

2 FOR THE SECOND CIRCUIT

3 ______________  

4 

5 August Term, 2012

6 

7 (Argued: June 10, 2013          Decided: April 20, 2015)

8 

9 Docket No. 12‐4521‐cv

10 ______________  

11 

12 DARNELL GREATHOUSE,

13 

14          Plaintiff‐Appellant,

15 

16 ‐v.‐ 

17 

18 JHS SECURITY INC., MELVIN WILCOX,

19 

20          Defendants‐Appellees.    21 

22 ______________

23 

24 B e f o r e:     

25 

POOLER and CARNEY, Circuit Judges, and KORMAN, District Judge.

* 26 

27 

28 Appeal from a final judgment of the United States District Court for the

29 Southern District of New York (Engelmayer, J.), adopting the Report and

30 Recommendation of a Magistrate Judge (Gorenstein, M.J.), and declining to

31 award damages, following entry of default, to Plaintiff‐Appellant Darnell

32 Greathouse on his retaliation claim brought under the Fair Labor Standards Act

 * The Honorable Edward R. Korman, of the United States District Court for the Eastern District of

New York, sitting by designation.   
 

2

1 (“FLSA”), 29 U.S.C. §§ 215(a)(3), 216.  Greathouse alleged that his employer

2 retaliated against him in violation of section 215(a)(3) when he orally complained

3 to his employer that he had not received the pay he was due.  The District

4 Court’s ruling against Greathouse turned on our decision in Lambert v. Genesee

5 Hospital, 10 F.3d 46 (2d Cir. 1993), which held that making an informal oral

6 complaint to a supervisor did not amount to “fil[ing a] complaint” and therefore

7 was not protected by the statute.  We now conclude that the Supreme Court’s

8 decision in Kasten v. Saint‐Gobain Performance Plastics Corp., 131 S. Ct. 1325

9 (2011), which held that an oral complaint can serve as a predicate to an FLSA

10 retaliation claim, casts doubt on the continued validity of our ruling in Lambert.

11 Accordingly, we overrule Lambert insofar as Kasten has not already done so.  

12 We VACATE the judgment of the District Court, and REMAND the cause for

13 further proceedings consistent herewith.  

14 

15 VACATED AND REMANDED.

16 

17 Judge KORMAN concurs in part and dissents in part in a separate opinion.

18 ______________                         

19 

20 PENN U. DODSON, AndersonDodson, P.C., New York,

21 New York, for Plaintiff‐Appellant.  

22                         

23 ALEXANDER BOGDAN (Vilia B. Hayes, on the brief),

24 Hughes Hubbard & Reed LLP, New York, New

25 York, amicus curiae counsel appointed by the Court in

26 support of Defendants‐Appellees.

27 

28 PAUL L. EDENFIELD, Attorney (M. Patricia Smith,

29 Solicitor of Labor, Jennifer S. Brand, Associate

30 Solicitor, Paul L. Frieden, Counsel for Appellate

31 Litigation, on the brief), U.S. Department of Labor,

32 Office of the Solicitor, Washington, D.C., for

33 amicus curiae Acting Secretary of Labor in support

34 of Plaintiff‐Appellant.

35 
 

3

1 TSEDEYE GEBRESELASSIE (Catherine K. Ruckelshaus, on  

2 the brief), National Employment Law Project, New

3 York, New York, for amici curiae Make the Road

4 New York, Brandworkers International,

5 Restaurant Opportunities Center of New York,

6 National Employment Law Project, Legal Aid

7 Society, Asian American Legal Defense and

8 Education Fund, and Urban Justice Center in

9 support of Plaintiff‐Appellant.

10 ______________                          

11 

12 SUSAN L. CARNEY, Circuit Judge:

13 In this appeal, we consider the effect of the Supreme Court’s decision in

14 Kasten v. Saint‐Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), on our

15 1993 decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993),

16 concerning what constitutes “fil[ing a] complaint” under the anti‐retaliation

17 provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3).   

18 Section 215(a)(3) makes it unlawful “to discharge or in any other manner

19 discriminate against any employee because such employee has filed any

20 complaint . . . related to” FLSA’s provisions.  In Lambert, we read section

21 215(a)(3) to require that an employee pursuing a claim for unlawful retaliation

22 have done more than voice an equal pay complaint to a supervisor.  10 F.3d at

23 55‐56.  To serve as a predicate for an FLSA retaliation claim, we held, a complaint
 

4

1 must be “formal[ly]” filed, see id. – a condition that we have subsequently

2 interpreted to require (1) a written complaint, that is (2) filed with a government

agency.1 3 

4 In its 2011 decision in Kasten, however, the Supreme Court held that the

5 section’s pivotal phrase – “filed any complaint” – encompasses oral as well as

6 written complaints, so long as the complaint is “sufficiently clear and detailed for

7 a reasonable employer to understand it, in light of both content and context, as

8 an assertion of rights protected by the statute and a call for their protection.”  131

9 S. Ct. at 1335.  To the extent, then, that Lambert turned on the oral nature of the

10 complaint made by the employee, Kasten rejected Lambert’s analysis.  The

11 Kasten Court refrained, however, from addressing the second factor on which

12 the Lambert analysis hinged:  that the complaint must be directed to a

13 government agency, not merely to a supervisor in the ranks of the defendant

14 employer.  Kasten, 131 S. Ct. at 1336.  Although Kasten itself arose in the context

 1 See, e.g., Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 328 (2d Cir. 2005) (explaining that in

Lambert, “this Court held that Section [2]15(a)(3) . . . does not apply to retaliation taken in response to

internal complaints, as opposed to retaliation occurring after an employee has cooperated with an

investigation brought by a regulatory agency”); see also Parilla v. Salt & Pepper on 33rd St. Inc., No. 12

Civ. 6382 (AKH), 2013 WL 4536628, at *3 (S.D.N.Y. Apr. 8, 2013) (“In [Lambert], the Second Circuit found

that two requirements had to be met in order for [section 215(a)(3)] to apply: 1) the complaint must have

been a formal, written complaint; and 2) the complaint must have been made to a government agency,

not to an employee’s supervisor.”).  
 

5

1 of an oral complaint made to an employer, not a government agency, the Kasten

2 Court declined to address specifically whether retaliation for a complaint made

3 to an employer is actionable.  See id. at 1336.     

4 Kasten overrules Lambert’s requirement that an employee seeking section

5 215(a)(3)’s protections file a written complaint.  As we discuss below, Kasten also

6 casts doubt on Lambert’s second requirement: that, for an employee’s complaint

7 to fall within the protections of section 215(a)(3), it be made to a government

8 agency.  Indeed, we not long ago characterized Kasten (albeit in a footnote) as

9 effecting an “abrogation of our precedent in this area.”  Kuebel v. Black & Decker

10 Inc., 643 F.3d 352, 358 n.3 (2d Cir. 2011).  Lambert’s holding in this respect is at

11 odds, moreover, with the weight of authority in our sister circuits, and with the

12 consistently held position of the two authorities charged with section 215(a)(3)’s

13 enforcement:  the Secretary of Labor and the Equal Employment Opportunity

14 Commission (“EEOC”).

15 Therefore, today, we overrule Lambert to the extent it holds that section

16 215(a)(3) requires an employee to have filed a complaint with a government

agency as a predicate for an FLSA retaliation claim.2 17   We conclude that an

 2 The panel’s opinions have been circulated to all active members of this Court prior to filing.  See
 

6

1 employee may premise a section 215(a)(3) retaliation action on an oral complaint

2 made to an employer, so long as – pursuant to Kasten – the complaint is

3 “sufficiently clear and detailed for a reasonable employer to understand it, in

4 light of both content and context, as an assertion of rights protected by the statute

5 and a call for their protection.”  131 S. Ct. at 1335.  Accordingly, because the

6 District Court denied Greathouse damages on his claim for retaliatory discharge

7 based entirely on Lambert’s rule, we vacate the judgment insofar as it relied on

8 Lambert and remand the cause for further proceedings consistent with this

9 opinion.    

10 

11 FACTUAL AND PROCEDURAL BACKGROUND

12 We recite the facts as found by the Magistrate Judge in a report and

13 recommendation that was adopted by the District Court.  See Greathouse v. JHS

14 Sec., Inc., No. 11 Civ. 7845 (PAE) (GWG), 2012 WL 3871523 (S.D.N.Y. Sept. 7,

15 2012), adopted by 2012 WL 5185591 (S.D.N.Y. Oct. 19, 2012).  Because both

16 defendants defaulted, the Magistrate Judge properly accepted as true the well‐

17 pleaded factual allegations of Greathouse’s complaint regarding liability, and

 

Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 & n.9 (2d Cir. 2009).
 

7

1 provided for further proceedings to determine the appropriate damage award.  

2 See SEC v. Razmilovic, 738 F.3d 14, 19 (2d Cir. 2013).  

3 From September 2006 through October 14, 2011, plaintiff Darnell

4 Greathouse worked as a security guard for defendant JHS Security Inc. (“JHS”).   

5 Greathouse considered defendant Melvin Wilcox, the president and part‐owner

6 of JHS, to be his “boss.”  Greathouse, 2012 WL 3871523, at *2.  During the course

7 of his employment with JHS, Greathouse was the victim of a number of

8 improper employment practices, including non‐payment and late payment of

9 wages, and improper payroll deductions.  Although Wilcox repeatedly told

10 Greathouse that he would receive his outstanding paychecks, those checks never

11 arrived.

12 On October 14, 2011, Greathouse complained to Wilcox that he had not

13 been paid in several months. Wilcox responded, “I’ll pay you when I feel like it,”

14 and, without warning, drew a gun and pointed it at Greathouse.  Greathouse,

15 2012 WL 3871523, at *2.  Greathouse understood that response as ending his

16 employment with JHS.

17 About two weeks later, Greathouse filed his complaint in the United States
 

8

1 District Court for the Southern District of New York.  In addition to various

2 FLSA and New York Labor Law (“NYLL”) claims related to his missing and

improperly reduced wages, 3 3 he alleged that Wilcox and JHS (through Wilcox)

4 had effectively discharged him in retaliation for his October 14th complaint,

5 thereby violating section 215(a)(3) and the NYLL.

6 Several months later, after neither defendant appeared or filed an answer,

7 the clerk of court entered defaults against both.  The District Court then referred

8 the matter to a magistrate judge to evaluate Greathouse’s claims for damages.   

9 The Magistrate Judge issued a Report and Recommendation in September 2012,

10 recommending that the District Court enter a damages award in the total amount

11 of $30,658.50, plus prejudgment interest, for Greathouse’s claims for unpaid

12 overtime, unpaid wages, improper deductions, and liquidated damages under

13 the NYLL.  Greathouse, 2012 WL 3871523, at *12.

14 As to the retaliation claim, however, the Magistrate Judge concluded that

15 Lambert barred an award because Greathouse had not filed a complaint with any

16 government agency or other prosecutorial authority, but had merely confronted

 3 Section 216, “Penalties,” provides that an employee may sue an employer to recover legal or

equitable relief, including the payment of lost wages, “as may be appropriate to effectuate the purposes

of section 215(a)(3) . . . .”  29 U.S.C. § 216(b).  New York Labor Law does essentially the same.  See N.Y.

Lab. Law § 663 (McKinney 2011).  
 

9

1 his employer in person to demand his missing wages. The Magistrate Judge

2 recognized that, under the Supreme Court’s holding in Kasten, an oral complaint

3 may serve as a predicate for an FLSA retaliation claim.  The Magistrate Judge

4 correctly acknowledged, however, that Kasten did not overturn Lambert insofar

5 as we held there that a complaint made to a supervisor is not a complaint “filed”

6 under section 215(a)(3).

7 Greathouse filed objections to the Magistrate Judge’s report in the District

8 Court, contesting, inter alia, the Magistrate Judge’s finding that Greathouse was

9 not entitled to damages for his FLSA retaliation claim.  The District Court

10 rejected Greathouse’s objection on this issue, agreeing with the Magistrate Judge

11 about the continued import of Lambert.  The District Court subsequently

12 adopted the Magistrate Judge’s conclusions, subject only to two minor

exceptions not relevant here, and the District Court entered default judgment.4 13     

14 On appeal, Greathouse argues primarily that, in light of Kasten, we should

15 overrule what remains of Lambert and squarely hold that FLSA prohibits

16 retaliation against employees who complain orally to their employers about

 4 These concerned the accounting for certain unlawful payroll deductions and unpaid wages,

which marginally affected the amount of the District Court’s award for liquidated damages under the

NYLL. [A.95‐96, 98]    
 

10

1 perceived FLSA violations.  Because defendants defaulted in the District Court

2 and never filed an appearance in this Court, we appointed pro bono counsel to

3 argue, as amicus curiae in support of defendants, that the Supreme Court’s

4 decision in Kasten did not abrogate our holding in Lambert and that the Lambert

5 rule with respect to intra‐company complaints should survive.  The two

6 administrative authorities charged with administering FLSA – the EEOC and the

Secretary of Labor – filed amicus briefs in support of Greathouse’s position.5 7 

8 

9 DISCUSSION

10 Section 215(a)(3) forbids “any person” from “discharg[ing] or in any other

11 manner discriminat[ing] against any employee because such employee has filed

12 any complaint or instituted or caused to be instituted any proceeding under or

13 related to this chapter . . . .”  29 U.S.C. § 215(a)(3) (emphasis added).  As

14 described above, the Supreme Court held in Kasten that FLSA’s anti‐retaliation

15 provision “includes oral as well as written complaints.”  131 S. Ct. at 1329.  The

16 Court overruled Lambert and our precedent following Lambert to the extent that

17 Lambert required an employee to have filed a written complaint to claim FLSA’s

 5 Counsel for the Secretary also participated in oral argument.
 

11

1 protections.  Id. at 1330 (citing Lambert as a contrary decision).  But the Kasten

2 Court expressly declined to address the question whether an employer’s

retaliation for an intra‐company complaint is actionable under FLSA.6 3   Id. at

4 1336.   

5 It is difficult to ignore, however, that the complaint at issue in Kasten was

6 lodged not with a government agency, but with an employer.  See id. at 1340‐41

7 (Scalia, J., dissenting).  Although slightly different concerns animated the Court’s

8 discussion in Kasten, an interpretation that excludes clearly stated complaints

9 from protection because they were made to the employer instead of a

10 government agency would run counter to the broadly remedial purpose that the

11 Kasten Court instructed FLSA serves.  See id. at 1334.  So, although we recognize

12 that the Court has not yet ruled on this precise question, we conclude that its

13 ruling in Kasten must be read as casting serious doubt on the second component

14 of our ruling in Lambert.

15 A. Our Holding in Lambert  

16 In Lambert, three female employees alleged that their employer, Genesee

17 Hospital (the “Hospital”), retaliated against them in violation of the Equal Pay

 6 It explained that the issue was not before the Court, since the defendant employer had failed to

mention the point in its opposition to the petition for certiorari.  Id. at 1336.
 

12

1 Act of 1963 (“EPA”), 29 U.S.C. § 206(d), a statute that amended FLSA.  10 F.3d at

2 50.  Two of the plaintiffs, Janine Lambert and Eva Baker, alleged that they

3 complained to their departmental supervisor and to a member of the Hospital’s

4 employee‐affairs department about Baker’s salary, which in their view was

5 unfairly lower than that of a male employee in the department (Francis Dupre),

6 whose responsibilities were substantially equivalent to Baker’s.  Id. at 51.   

7 About one year after Lambert and Baker complained, the supervisor

8 selected Dupre to manage the department.  Id.  Citing that incident and others,

9 Lambert, Baker, and one of their female colleagues sued the Hospital, their

10 supervisor, and Dupre, alleging that Dupre’s promotion over Baker was made in

11 retaliation for Lambert and Baker’s complaints to their supervisor about Baker’s

unequal pay.  Id.  This, they contended, violated the EPA and section 215(a)(3).7 12 

13 The district court assumed that plaintiffs’ allegations stated a retaliation

14 claim under section 215(a)(3), Lambert, 10 F.3d at 56, and the case proceeded to

15 trial, where a jury found for plaintiffs on their retaliation claim as well as on their

16 equal pay claim, id. at 51‐52.  After trial, however, the district court granted

 7 The EPA amended FLSA and is codified under the same chapter.  An employer’s retaliation for

filing EPA complaints, like retaliation for filing FLSA complaints, is analyzed under section 215(a)(3).  See

Lambert, 10 F.3d at 55.
 

13

1 defendants’ motion for judgment notwithstanding the verdict.  Id. at 52.  

2 Plaintiffs appealed the resulting dismissal.

3 On appeal, we held that the district court erred in granting judgment to

4 defendants on plaintiffs’ retaliation claim because defendants had waived their

5 legal argument.  Id. at 54.  Nonetheless, we dismissed plaintiffs’ section 215(a)(3)

6 claim, on our own accord, for failure to state a claim.  Id. at 56.  We determined

7 that the plain language of section 215(a)(3) – to “file[] any complaint” – “limits

8 the cause of action to retaliation for filing formal complaints, instituting a

9 proceeding, or testifying, but does not encompass complaints made to a

10 supervisor.”  Id. at 55.  Because plaintiffs premised their claim on “simply oral

11 complaints to a supervisor,” they had not stated a claim for retaliation under

12 section 215(a)(3).  Id. at 55‐56.

13 The Lambert court’s conclusion – that an employee pursuing a claim for

14 unlawful retaliation must do more than voice an equal pay complaint to a

15 supervisor to invoke section 215(a)(3)’s protections – is contrary to the weight of

16 authority in our sister circuits, even more so now than when Lambert was

17 decided.  Indeed, the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and
 

14

1 Eleventh Circuits have all held that section 215(a)(3) protects employees from

2 retaliation for their complaints made to employers, and the Sixth Circuit has

3 assumed, without significant discussion, that complaints to an employer are

covered by section 215(a)(3). 8 4   The EEOC has long maintained the position that

5 the Act protects employees who make such intra‐company complaints.

6 B. The Supreme Court’s Holding in Kasten

7 Nearly two decades after Lambert was decided, after these developments

8 in other circuits and application of Lambert within our own, the Supreme Court

9 granted certiorari in Kasten to resolve a “conflict among the Circuits as to

10 whether an oral complaint is protected” by section 215(a)(3).  131 S. Ct. at 1330.  

11 The question there arose from an employee’s oral complaints to his shift

 8 See Minor v. Bostwick Labs., Inc., 669 F.3d 428, 432 (4th Cir. 2012) (holding that “remedial

purpose of the statute requires that it protect from retaliation employees who file intracompany

complaints”); Kasten v. Saint‐Gobain Performance Plastics Corp., 570 F.3d 834, 838 (7th Cir. 2009),

overruled on other grounds, 131 S. Ct. 1325 (2011) (concluding internal complaints protected under plain

language of § 215(a)(3)); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir. 2008) (adopting

“majority rule” that internal complaints are protected because “it better captures the anti‐retaliation

goals” of FLSA); Lambert v. Ackerley, 180 F.3d 997, 1005 (9th Cir. 1999) (en banc) (holding that

section 215(a)(3) protections “extend[] to employees who complain to their employer”); Valerio v. Putnam

Assocs. Inc., 173 F.3d 35, 43 (1st Cir. 1999) (Campbell, J.) (concluding that “animating spirit of the [FLSA]

is best served by a construction of § 215(a)(3) under which the filing of a relevant complaint with the

employer no less than with a court or agency may give rise to a retaliation claim”); EEOC v. Romeo

Cmty. Sch., 976 F.2d 985, 989‐90 (6th Cir. 1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th

Cir. 1989) (stating that unofficial complaints to an employer “constitute an assertion of rights protected

under the statute”); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (concluding that

section 215(a)(3) applies to “the unofficial assertion of rights through complaints at work”); Brennan v.

Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975) (concluding that a complaint to company

president “was an act protected from reprisals” under section 215(a)(3)).   
 

15

1 supervisor and to other employees that their employer was violating FLSA by

2 failing to compensate them for time spent donning and doffing their work‐

3 related protective gear.  Id. at 1329‐30.  The Seventh Circuit had affirmed

4 summary judgment for the employer, ruling that FLSA does not protect oral

5 complaints.  Id. at 1330.     

6 Deciding that the statutory phrase “filed any complaint,” read in isolation,

7 is “open to competing interpretations,” id. at 1330‐31, the Supreme Court looked

8 to FLSA’s basic objectives for interpretive guidance.  It also examined the range

9 of meanings that the words “filed” and “complaint” and the phrase “filed any

10 complaint” could bear and gave “a degree of weight” to the views of the agencies

11 charged with enforcing FLSA – the Department of Labor and the EEOC, which

12 argued for a broad reading of the section, one protective of employees.  Id. at

13 1335.     

14 The Court concluded that “only one interpretation is permissible”:  an oral

15 complaint is protected by FLSA’s anti‐retaliation provision if the complaint is

16 “sufficiently clear and detailed for a reasonable employer to understand it, in

17 light of both content and context, as an assertion of rights protected by the statute
 

16

1 and a call for their protection.”  Id. at 1331, 1335.  Despite framing the inquiry by

2 reference to what a “reasonable employer” would understand, id. at 1335

3 (emphasis added), the Court nevertheless expressly declined to address the

4 logically prior question whether FLSA applies, in the first instance, to complaints

5 made directly to employers, rather than to government agencies.  Id. at 1336.  It is

6 to that question that we now turn.      

7 C. Looking Anew at the Statutory Language: “Filed Any Complaint”

8 Both impelled and guided by Kasten, we now look anew at the statutory

9 interpretation question that we addressed of our own accord in Lambert, but that

10 the Kasten Court did not resolve:  does section 215(a)(3) prohibit retaliation

11 against employees for oral complaints made to employers?

12 1. The phrase “filed any complaint” admits of more than one       

13    meaning

14 

15 A statute generally “should be enforced according to its plain and

16 unambiguous meaning.”  United States v. Livecchi, 711 F.3d 345, 351 (2d Cir.

17 2013).  The “plainness or ambiguity of statutory language is determined by

18 reference to the language itself, the specific context in which that language is

19 used, and the broader context of the statute as a whole.”  Robinson v. Shell Oil
 

17

1 Co., 519 U.S. 337, 341 (1997).  If we determine that a statutory provision is

2 ambiguous, we then turn to canons of statutory construction for assistance in

3 interpreting the statute.  See Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408,

4 423 (2d Cir. 2005).  

5 In Lambert, we determined that the plain language of section 215(a)(3)

6 prohibited only “retaliation for filing formal complaints, instituting a proceeding,

7 or testifying.”  Lambert, 10 F.3d at 55 (emphasis added).  But when we look again

8 at section 215(a)(3), with the benefit of Kasten and the readings of our sister

9 circuits, we now conclude that the statutory language is not as plain and

10 unambiguous as it seemed when Lambert was decided.  See Kasten, 131 S. Ct. at

11 1330‐31 (stating that section 215(a)(3) “may be open to competing

12 interpretations”).  As the Supreme Court explained, “even if the word ‘filed,’

13 considered alone, might suggest a narrow interpretation limited to writings, the

14 phrase ‘any complaint’ suggests a broad interpretation that would include an

15 oral complaint.”  Id. at 1332.   

16 Guided by this discussion, we must reevaluate the distinction drawn in

17 Lambert and its progeny between “formal” complaints to government agencies
 

18

1 and “informal” complaints to supervisors.  First, we observe that the text of the

2 statute does not provide that a complaint must be filed “formally,” or exclude

3 from its protections those complaints that are filed “informally.”  In short:  it

4 does not use either word.  Nor does it expressly direct that, to be protected, a

complaint must be filed with a government agency or any particular entity.9 5   

6 Second, even if the word “filed,” considered alone, might seem to contemplate

7 lodging a complaint with a governmental body, the word’s context counsels

8 against a narrow reading:  as the Supreme Court reasoned, the phrase “any

9 complaint” suggests an expansive reading, one that could include complaints

10 filed with or expressed to an employer.

11 Citing Justice Scalia’s dissent in Kasten, 131 S. Ct. at 1337 (Scalia, J.,

12 dissenting), amicus curiae in support of defendants argues that the phrase “filed

13 any complaint” clearly and unambiguously refers only to complaints made to

14 government agencies, because every other use of the word “complaint” in FLSA

15 refers to a governmental filing.  See 29 U.S.C. § 216(b) (explaining that the right

 9 In full, subsection 3 of section 215(a) provides that it is unlawful for any person:  

(3) to discharge or in any other manner discriminate against any employee

because such employee has filed any complaint or instituted or caused to be

instituted any proceeding under or related to this chapter, or has testified or is

about to testify in any such proceeding, or has served or is about to serve on an

industry committee.
 

19

1 to bring certain actions “shall terminate upon the filing of a complaint by the

2 Secretary of Labor”); id. § 216(c) (explaining that the statute of limitations for an

3 action for unpaid wages commences “on the date when the complaint is filed”);

4 id. § 218c(b) (setting forth the “Complaint procedure” by which one may “seek

5 relief” by filing a complaint with the Department of Labor).  Amicus also

6 contends that the phrase “fil[ing a] complaint” is not commonly used to describe

7 the act of complaining to an employer.

8 But, as our sister circuits have recognized, the phrase “filed any

9 complaint” may also plausibly be interpreted to include intra‐company

10 complaints.  The accepted definition of “to file,” as the First Circuit has noted,

11 may include an employee’s submission of a written letter of complaint to an

12 employer:  the concept is “sufficiently elastic to encompass an internal complaint

13 made to a private employer with the expectation the employer will place it on

14 file among the employer’s official records.”  Valerio v. Putnam Assocs. Inc., 173

F.3d 35, 41‐42 (1st Cir. 1999) (Campbell, J.).10 15   And, filing work‐related grievances

 10 We also agree with the Fourth Circuit that the phrase “filed any complaint” is “correctly

considered separately from the remainder of § 215(a)(3).”  Minor, 669 F.3d at 436.  As noted above,

FLSA’s anti‐retaliation provision protects an employee who has “filed any complaint or instituted or

caused to be instituted any proceeding . . . or has testified or is about to testify in any such proceeding.”  

29 U.S.C. § 215(a)(3) (emphasis added).  As the Fourth Circuit concluded, by phrasing section 215(a)(3) in

the disjunctive, “Congress has indicated its intent that we consider each of these categories of protected
 

20

1 with employers is a common practice in many workplaces.  See, e.g., Lambert v.

2 Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (en banc) (noting that “any

3 complaint” is clearly broad enough to encompass complaints made to employers,

4 and highlighting the widespread practice of “filing” grievances and complaints

5 with unions and employers before commencing other internal or external

6 proceedings).  In addition, “filed any complaint” must be examined in context,

7 contrasting it with the neighboring phrase, “instituted any proceeding”:  to avoid

8 rendering one or the other surplusage, we may construe the first to contemplate

9 a communication (such as an intra‐company complaint seeking a change in

10 company practice) that does not ordinarily trigger a “proceeding” (such as an

adjudicatory process).11 11 

12 In light of these competing interpretations, we conclude that the statutory

13 phrase “filed any complaint” is variable in meaning and does not

14 unambiguously denote submission of complaints to government agencies alone.  

15 To interpret the language of the statute, then, we must apply traditional tools of

 

activity independently.”  Minor, 669 F.3d at 436 (explaining that “‘terms connected by a disjunctive

[should] be given separate meanings’” (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979))).

11 As noted above, see supra note 8, other circuits have drawn similar conclusions about the reach

of the phrase “filed any complaint.”  See Minor, 669 F.3d at 432; Kasten, 570 F.3d at 838; Hagan, 529 F.3d

at 626; Lambert, 180 F.3d at 1005; Valerio, 173 F.3d at 43; White & Son Enters., 881 F.2d at 1011; Love, 738

F.2d at 387; Brennan, 513 F.2d at 181.
 

21

1 statutory interpretation.  These include looking to the purpose of FLSA, and

2 affording some degree of weight to the interpretations of the agencies charged

3 with enforcing it.  See Minor v. Bostwick Labs., Inc., 669 F.3d 428, 436 (4th Cir.

4 2012) (concluding that “‘filed any complaint’ is ambiguous as to whether

5 intracompany complaints are protected activity under the FLSA,” and “mov[ing]

6 to other interpretive tools”).   

7 2. Statutory purpose

8 Congress declared its intention in FLSA “to correct and as rapidly as

9 practicable to eliminate” labor conditions “detrimental to the maintenance of the

10 minimum standard of living necessary for health, efficiency, and general well‐

11 being of workers,” without substantially reducing employment or earning

12 power.  29 U.S.C. § 202.  To achieve this goal, FLSA sets forth minimum wage

13 standards, id. § 206, and establishes certain payroll practice requirements, id.     

14 §§ 207, 211(c), among other mandates.  Because the government cannot directly

15 monitor every employer’s payroll, FLSA also creates an enforcement mechanism

16 that relies in significant part on employees’ complaints.  See Mitchell v. Robert

17 DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960).  Congress enacted
 

22

1 section 215(a)(3) to “prevent[ ] fear of economic retaliation from inducing

2 workers quietly to accept substandard conditions,” Kasten, 131 S. Ct. at 1333

3 (internal quotation marks omitted), and to foster an atmosphere protective of

4 employees who lodge such complaints.  

5 We have repeatedly affirmed that “the remedial nature of the FLSA

6 warrants an expansive interpretation of its provisions so that they will have the

7 widest possible impact in the national economy.”  Irizarry v. Catsimatidis, 722

8 F.3d 99, 110 (2d Cir. 2013) (internal quotation marks and alterations omitted);

9 Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (same); see also

10 Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003) (recognizing the

11 “remedial purpose” of FLSA).  FLSA’s remedial goals counsel in favor of

12 construing the phrase “filed any complaint” in section 215(a)(3) broadly, to

13 include intra‐company complaints to employers as well as complaints to

14 government agencies.  See, e.g., Valerio, 173 F.3d at 43 (concluding that the

15 “remedial and humanitarian purposes of [FLSA] . . . would hardly be furthered

16 by a narrow reading of § 215(a)(3)” (internal quotation marks and citations

17 omitted)).   
 

23

1 Prohibiting retaliation against employees who make internal complaints

2 furthers the purposes of FLSA by encouraging speedier and more efficient

3 resolution of employee grievances, and resolving FLSA‐related issues before

4 employees have lost significant wages or other benefits.  As the Supreme Court

5 cautioned in Kasten, limiting the protections of section 215(a)(3) to employees

6 who make complaints to government agencies “would discourage the use of

7 desirable informal workplace grievance procedures to secure compliance with

8 the Act.”  131 S. Ct. at 1334.  Even before Kasten, the First Circuit opined that

9 “[b]y protecting only those employees who kept secret their belief that they were

10 being illegally treated until they filed a legal proceeding,” a narrow

11 interpretation of FLSA “would discourage prior discussion of the matter between

12 employee and employer, and would have the bizarre effect both of discouraging

13 early settlement attempts and creating an incentive for the employer to fire an  

14 employee as soon as possible after learning the employee believed he was being

15 treated illegally.”  Valerio, 173 F.3d at 43.  

16 The protective purpose of FLSA, recognized and acted on by the Kasten

17 Court, counsels unmistakably in favor of adopting a reading of the statutory
 

24

1 phrase “filed any complaint” that includes lodging an internal complaint with an

2 employer.     

3 3. Administrative interpretations

4 We next examine another factor relevant to our analysis:  the views of the

5 EEOC and the Secretary of Labor, as the authorities charged with enforcing

FLSA.12 6   “The well‐reasoned views of the agencies implementing a statute

7 constitute a body of experience and informed judgment to which courts and

8 litigants may properly resort for guidance . . . .”  United States v. Mead Corp.,

9 533 U.S. 218, 227 (2001) (internal quotation marks and brackets omitted).  The

10 weight appropriately afforded an agency interpretation that lacks the force of

11 law – such as an agency manual or litigation document – depends upon “the

12 thoroughness evident in its consideration, the validity of its reasoning, its

13 consistency with earlier and later pronouncements, and all those factors which

14 give it power to persuade, if lacking power to control.”  Skidmore v. Swift & Co.,

15 323 U.S. 134, 140 (1944).  In Kasten, the Supreme Court ascribed “a degree of

 12 Congress has authorized the Secretary of Labor to enforce FLSA’s substantive provisions.  29

U.S.C. § 216(c).  Like FLSA, the EPA was originally enforced by the Secretary of Labor, but in 1977,

authority to enforce the EPA and jurisdiction over its regulations were transferred to the EEOC, an

independent bipartisan commission chartered by Title VII of the Civil Rights Act, 42 U.S.C. § 2000e.  See

Reorganization Plan No. 1 of 1978, 5 U.S.C. App. § 1.  
 

25

1 weight” to the views of the EEOC and the Secretary, finding them “reasonable”

2 and “consistent with the Act,” and explaining that “[t]he length of time the

3 agencies have held them suggests that they reflect careful consideration, not ‘post

4 hoc rationalizatio[n].’”  131 S. Ct. at 1335 (quoting Motor Vehicle Mfrs. Ass’n of

5 United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50 (1983)).

6 Since no later than 1998, the EEOC Compliance Manual – a document

7 intended, among other things, to “provide[ ] guidance and instructions for

8 investigating and analyzing claims of retaliation under the statutes enforced by

9 the EEOC” – has provided that employees are protected from retaliation “if an

10 individual explicitly or implicitly communicates to his or her employer or other

covered entity a belief that its activity” is unlawful.13 11   2 EEOC Compliance

Manual, Section 8: Retaliation § 8‐II(B)(1) (May 20, 1998).14 12    

13 The agencies’ litigation positions on this question have also been consistent

14 for decades.  Both the Secretary and the EEOC have filed numerous briefs in the

15 various Courts of Appeals maintaining that section 215(a)(3) prohibits retaliation

 13 The Supreme Court has described the EEOC Compliance Manual as reflecting “a body of

experience and informed judgment to which courts and litigants may properly resort for guidance” and

thus “entitled to a measure of respect.”  Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008)

(internal quotation marks omitted).   

14 Available at http://www.eeoc.gov/policy/docs/retal.pdf (last visited Mar. 29, 2015).    
 

26

1 against employees who complain to their employers about FLSA violations.  See

2 Minor, 669 F.3d at 439 (noting that “although it is not determinative, because the

3 Secretary and the EEOC have consistently advanced this reasonable and

4 thoroughly considered position, it adds force to our conclusion” (internal

5 quotation marks and alterations omitted)).  We are advised that this litigation

6 position dates back to at least 1989 for the EEOC and 1999 for the Secretary.  See

7 Brief for the EEOC as Amicus Curiae at 2; Brief for the Secretary of Labor as

8 Amicus Curiae at 27.   

9 For the reasons relied on by the Supreme Court in Kasten as to the

10 question of oral complaints, then, we find that the agencies’ longstanding,

11 consistent interpretation provides additional support for the view that to “file[]

12 any complaint” includes to submit a complaint to an employer.  

13 D. To “File[] Any Complaint” Encompasses Intra‐Company

14 Complaints   

15 

16 Based on the foregoing analysis, we conclude that section 215(a)(3) does

17 not restrict its protections to employees who file formal, written complaints with

18 government agencies.  Consistent with FLSA’s text and remedial purpose, with

19 the approach adopted in Kasten, and with Congressional design to encourage
 

27

1 workers to report potential violations without fear of reprisal, we construe the

2 phrase “file[] any complaint” as encompassing oral complaints made to

3 employers in a context that makes the assertion of rights plain.  Our reading

4 derives support from the provision’s consistent, longstanding interpretation by

5 the agencies charged with its enforcement.  It brings us in harmony, too, with the

decisions of the other Courts of Appeals to have considered the issue.15 6    

7 Our reading is subject, however, to certain limitations.  As observed in part

8 by the Kasten Court, whether the “fil[ing of a] complaint” – especially an oral

9 complaint delivered directly to an employer – constitutes an act protected by

10 FLSA is a context‐dependent inquiry.  In some circumstances, an employer may

11 find it difficult to recognize an oral complaint as one invoking rights protected

12 by FLSA.  It seems to us inconsistent with Kasten to elevate a grumble in the

13 hallway about an employer’s payroll practice to a complaint “filed” with the

14 employer within the meaning of section 215(a)(3).  Indeed, the Supreme Court

15 observed in Kasten that “the phrase ‘filed any complaint’ contemplates some

16 degree of formality,” 131 S. Ct. at 1334 (emphasis added), but described the level

17 of formality necessary in terms of the employer’s interests in knowing when it

 15 See supra note 8.    
 

28

1 need take care to avoid action that might be seen as retaliatory:  “where the

2 recipient has been given fair notice that a grievance has been lodged and does, or

3 should, reasonably understand the matter as part of its business concerns,” id.   

4 Recognizing the potential for ambiguity in oral communications, yet

5 desiring not to impair the enforcement framework adopted in the statute, the

6 Kasten Court explained that “a complaint is ‘filed’ [only] when a reasonable,

7 objective person would have understood the employee to have put the employer

8 on notice that the employee is asserting statutory rights under the Act.”  Id. at

9 1335 (internal quotation marks and alterations omitted).  The employee need not

10 invoke the Act by name, but, as the Court concluded, “[t]o fall within the scope

11 of the antiretaliation provision, a complaint must be sufficiently clear and

12 detailed for a reasonable employer to understand it, in light of both content and

13 context, as an assertion of rights protected by the statute and a call for their

14 protection.”  Id.  Defining the exact contours of that standard is beyond the scope

15 of this opinion, but it would, for example, exclude from the concept of “fil[ing a]
 

29

complaint” a mere passing comment.16 1   This limitation, applied with the statute’s

2 remedial purpose in mind, informs and cabins our holding today.

3 We decline, however, to address here the question whether Greathouse’s

4 complaint provided an adequate basis on which to enter a default judgment

5 against his employer on his retaliation claim.  The decision whether to enter

6 default judgment is committed to the district court’s discretion, see City of New

7 York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 131 (2d Cir. 2011), as is the

8 decision whether to conduct a hearing before deciding the default judgment

9 motion, see Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir. 2009).   See also Fed.

10 R. Civ. P. 55(b)(2) (“The court may conduct hearings or make referrals . . . when,

11 to enter or effectuate judgment, it needs to . . . conduct an accounting; . . .

12 determine the amount of damages; . . . establish the truth of any allegation by

evidence; or . . . investigate any other matter.”).17 13   We therefore remand the cause

 16 The state of the record in Lambert was such that it is difficult to ascertain whether the

complaint and the setting in which it was communicated satisfied the conditions that the Kasten majority

identified as necessary to give the employer “fair notice that a grievance has been lodged.”  Kasten, 131 S.

Ct. at 1334.  We note further that the complaints made to the supervisor in Lambert were particularly ill‐

documented and removed in time from the allegedly discriminatory action.    

17 Judge Korman, concurring in part and dissenting in part, infra, highlights, among other

passages, text from Trans World Airlines, Inc. v. Hughes, 449 F.2d 51 (2d Cir. 1971), rev’d on other

grounds, 409 U.S. 363 (1973), in which this Court asserted that a “default ha[s] the effect of admitting or

establishing that the acts pleaded in the complaint violated the [applicable] law[],” id. at 70.  He suggests,

on this basis and in light of defendants’ defaults, that the District Court was required to award
 

30

1 to the District Court for a ruling in the first instance on Greathouse’s default

2 judgment motion with respect to his claim for unlawful retaliation under FLSA.  

3 

4 CONCLUSION

5 In sum, we overrule what is left of our holding in Lambert v. Genesee

6 Hospital, 10 F.3d 46 (2d Cir. 1993), and conclude, in accordance with all of our

7 sister circuits to have addressed the issue, that section 215(a)(3) prohibits

8 retaliation against employees who orally complain to their employers, so long as

9 their complaint is “sufficiently clear and detailed for a reasonable employer to

10 understand it, in light of both content and context, as an assertion of rights

11 protected by the statute and a call for their protection.”  Kasten, 131 S. Ct. at 1335.   

12 We therefore VACATE the District Court’s judgment insofar as it relied on

13 Lambert, and REMAND the cause to the District Court to determine, in the first

 

Greathouse damages on his section 215(a)(3) retaliation claim, contending that the defaults conclusively

established defendants’ liability—and were not simply an admission to the well‐pleaded allegations.  But

even if this passage from Trans World Airlines remains good law in light of this Court’s subsequent

jurisprudence, see, e.g., Finkel, 577 F.3d at 84 (The district court “is . . . required to determine whether

[plaintiff’s] allegations establish [defendant’s] liability as a matter of law.”), the Court in that case did not

hold that a district court lacks discretion to investigate the basis for a plaintiff’s claims before deciding

whether to grant default judgment, see generally 10A Wright, Miller & Kane, Federal Practice &

Procedure § 2684, at 28 (“The court has discretion to decide whether to enter a judgment by default,

. . . and Rule 55(b)(2) empowers the district judge to hold hearings or ‘order such references as it deems

necessary and proper’ to aid its execution of this discretion.”).
 

31

1 instance, whether to grant Greathouse a default judgment on his retaliation claim

2 under section 215(a)(3), and if so, what damages, if any, Greathouse is entitled to

recover therefor.18 3   

 18 The District Court deemed Greathouse’s NYLL retaliation claim waived because he did not

request any related damages in his submissions to the Magistrate Judge.  Greathouse, 2012 WL 5185591,

at *6. Since Greathouse concedes that if he succeeds on his FLSA retaliation claim under 29 U.S.C.

§ 215(a)(3), he may not recover duplicative damages under the NYLL, we do not reach his NYLL claim

here.
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

1 

Edward R. Korman, District Judge, concurring in part, dissenting in part: 

 Darnell Greathouse (“Greathouse”) complained orally to his employer, JHS Security, Inc. 

(“JHS”), that he had not received a paycheck in several months. Greathouse alleged that he was 

terminated as a result. The majority recognizes that, under Lambert v. Genesee Hosp., 10 F.3d 

46 (2d Cir. 1993) (Walker, J.), Greathouse would be precluded from recovering on his FLSA 

retaliation claim, because the complaint that prompted his retaliatory dismissal was made to his 

employer, and not to a government agency. Nevertheless, it declines to follow Lambert because 

it concludes that it is no longer good law after Kasten v. Saint-Gobain Performance Plastics 

Corp., 131 S. Ct. 1325 (2011). Moreover, because any damage award predicated on New York 

Labor Law (“NYLL”)—if such an award were made—would duplicate Greathouse’s recovery 

on the Fair Labor Standards Act (“FLSA”) retaliation claim, the majority declines to address the 

issue whether he waived his claim for damages under the NYLL. This assumes that on remand, 

contrary to my understanding of Kasten, Greathouse would be entitled to recover damages if 

Lambert is overruled. 

 I agree that the district court erred by denying an award of damages on the FLSA 

retaliation cause of action. I would hold that Greathouse is entitled to an award of damages in 

his favor pursuant to the anti-retaliation provision of the FLSA § 215(a)(3) and on his pendent 

NYLL § 215(2) claim. I reach this conclusion because the procedural posture of this case makes 

it inappropriate to do anything other than enter a default judgment on both causes of action after 

the failure of the defendants to appear. 

BACKGROUND 

I begin with a brief overview of the procedural history of the case. On March 15, 2012, 

the district judge ordered “that a default judgment be entered against [the] defendants . . . with 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

2 

the amount of the judgment to be determined after an inquest before . . . the magistrate judge.” 

Default J. & Inquest Order, Greathouse v. JHS Sec., Inc., No. 11-cv-7845 (S.D.N.Y. March 15, 

2012), ECF No. 15. On September 7, 2012, the magistrate judge issued a Report & 

Recommendation (“R&R”) that acknowledged that “[b]ecause the default establishes 

defendants’ liability . . . the only remaining issue is whether plaintiffs [sic] have supplied 

adequate proof of their damages.” R&R, Greathouse v. JHS Sec., Inc., No. 11-cv-7845 

(S.D.N.Y. Sept. 7, 2012) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d 

Cir. 1995)), ECF No. 26 at 2. Nevertheless, rather than address the issue of whether plaintiff had 

supplied adequate proof of his damages, he ignored the direction of the district judge, as well as 

the rule of law that he had previously cited, and went on to address the issue of whether the 

allegations in the complaint were sufficient to state a claim for relief. 

Specifically, as relevant here, he found deficient the cause of action alleging that 

Greathouse was terminated because he had complained to his superior about the non-payment of 

wages. Relying on Lambert, he concluded that, “[b]ecause Greathouse does not allege that his 

termination was in response to the submission of a complaint to some relevant governmental or 

other prosecutorial authority, Greathouse fails to state a claim for retaliation under the FLSA.” 

Id. at 15. Consequently, he declined to recommend that damages be awarded on that claim, even 

though Greathouse presented evidence documenting the damages that he suffered as a result of 

the retaliatory termination. The magistrate judge did not address the plaintiff’s NYLL antiretaliation claim, which was not dependent on whether the employee’s grievance was voiced to a 

judicial or administrative body. 

 Greathouse appealed to the district judge, who adopted the recommendation of the 

magistrate judge that the allegations failed to state a claim under the FLSA. Greathouse v. JHS 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

3 

Sec. Inc., No. 11 CIV. 7845 (PAE) (GWG), 2012 WL 5185591, at *5 (S.D.N.Y. Oct. 19, 2012). 

Moreover, he rejected Greathouse’s objection that he was entitled to a judgment under the NYLL 

retaliation statute because Greathouse did not refer to that cause of action in the findings of fact 

and conclusions of law that he filed with the magistrate judge. Id. at *6. While he was not 

required to do so, the district judge held, sua sponte, that this constituted a waiver of 

Greathouse’s objection. On appeal, we appointed Vilia B. Hayes, a partner at Hughes Hubbard 

& Reed LLP and the then-President-elect of the Federal Bar Council, to argue on behalf of the 

absent defendants in favor of the judgment below to the extent that it relied on Lambert. 

DISCUSSION 

I. The Effect of the Default Judgment 

 Regardless of whether the majority’s decision to overrule Lambert is correct—an issue 

that I address later in this opinion—this is not the appropriate case in which to reconsider that 

decision. Specifically, we should exercise restraint here in light of this case’s troubling 

procedural posture, arising as it does from a default judgment. There is something wrong when a 

case or controversy, to the extent that it exists, is principally between a plaintiff and the judges 

deciding the case. The way to avoid such an anomalous procedure here is to award damages 

based on the default judgment entered by the district court against JHS and its owner and 

president, Melvin Wilcox (“Wilcox”), who failed to appear in the district court. I proceed to 

discuss the rules governing the entry of default judgments and demonstrate that the entry of 

default judgment would be particularly appropriate, if it was not compelled, in this case. 

A. The Default Judgment and the FLSA Retaliation Cause of Action 

 Fed. R. Civ. P. 55(b) sets out the procedures to be followed when a defendant defaults by 

failing to appear. First, Rule 55(b)(1) provides that, “[i]f the plaintiff’s claim is for a sum certain 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

4 

or a sum that can be made certain by computation, the clerk . . . must enter judgment for that 

amount and costs against a defendant who has been defaulted for not appearing and who is 

neither a minor nor an incompetent person.” Fed. R. Civ. P. 55(b)(1) (emphasis added). By 

these terms, the entry of default judgment for the damages requested is mandatory and there is no 

room for discretion to deny an award of damages because the complaint does not state a claim 

for relief. 

 Rule 55(b)(2) provides in pertinent part that “[i]n all other cases,” which would 

presumably include cases in which damages are not even sought, as well as cases where damages 

claimed are other than a sum certain, “[t]he court may conduct hearings or make referrals . . . 

when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the 

amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any 

other matter.” Fed. R. Civ. P. 55(b)(2) (emphasis added). There is no reason why the Federal 

Rules of Civil Procedure would mandate the entry of a judgment without an examination of the 

allegations of the complaint where the amount sought is for a sum certain, but permit such an 

inquiry simply because the damages are not certain. The reason for the discretion vested in Rule 

55(b)(2) is to permit proceedings facilitating the district judge’s determination of damages or 

other relief sought in the complaint that fall within the discretion of the trier of fact. Thus, in 

Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974), we held that a hearing was required to 

determine punitive damages because such damages were within the discretion of the trier of fact 

and were “clearly not liquidated or computable and there is no basis at all here to award the 

amount set forth in the complaint.” 

 This is not to say that courts are obligated to enter default judgments no matter how 

frivolous the suit, so long as the defendants have defaulted. Courts have both statutory and 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

5 

inherent authority to sua sponte dismiss frivolous suits. See Fitzgerald v. First East Seventh 

Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[W]e hold that district courts may 

dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee 

. . . .”). Indeed, in cases proceeding in forma pauperis, the discretion of the district court may 

even be greater. Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The standard for 

frivolousness does not encompass otherwise well-pled claims for relief on the ground that they 

fail to state a claim, although there may be some overlap between those two classes of suits. 

Neitzke v. Williams, 490 U.S. 319, 326 (1989). Frivolous suits are those that lack “an arguable 

basis either in law or fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke, 490 

U.S. at 325). As the Supreme Court explained in Neitzke,

Close questions of federal law, including claims filed pursuant to 

42 U.S.C. § 1983, have on a number of occasions arisen on 

motions to dismiss for failure to state a claim, and have been 

substantial enough to warrant this Court's granting review, under 

its certiorari jurisdiction, to resolve them [even though they were 

initially dismissed]. It can hardly be said that the substantial legal 

claims raised in these cases were so defective that they should 

never have been brought at the outset. To term these claims 

frivolous is to distort measurably the meaning of frivolousness 

both in common and legal parlance. Indeed, we recently reviewed 

the dismissal under Rule 12(b)(6) of a complaint based on 42 

U.S.C. § 1983 and found by a 9-to-0 vote that it had, in fact, stated 

a cognizable claim—a powerful illustration that a finding of a 

failure to state a claim does not invariably mean that the claim is 

without arguable merit. 

Neitzke, 490 U.S. at 328-29 (internal citations omitted). In this case, there has never been a 

suggestion that plaintiff’s suit is frivolous, even as there has been much discussion as to whether 

it adequately states a claim. 

 Moreover, an aggrieved party against whom a default judgment has been entered also has 

recourse to set aside the judgment after the fact. Rule 55(c) confers discretion on the district 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

6 

court to provide for relief from the entry of a default judgment for “good cause shown,” and that 

a default judgment may be vacated “in accordance with Rule 60(b).” Fed. R. Civ. P. 55(c); see 

10A Wright, Miller & Kane § 2692 at 90, § 2693 at 103-04 (“[S]everal courts [including the 

Second Circuit] have concluded that Rules 55(c) and 60(b) express a policy of liberality toward 

motions for relief from default entries and default judgments,” and “they have ruled that on a 

motion for relief from the entry of a default or a default judgment, all doubts should be resolved 

in favor of the party seeking relief.); see also Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983) 

(same). This provides significant protection against any miscarriage of justice that may result 

from a defendant’s decision not to appear and a resulting default judgment. 

 In light of these protections, there seems little justification for granting defaulting parties 

the benefits they received in this case. Those benefits were substantial. The magistrate in the 

case essentially took it upon himself to act as counsel for parties who had not bothered 

themselves to appear in court. Acting as both counsel and judge, the magistrate—affirmed by 

the district judge—sua sponte denied damages on a previously entered default judgment on the 

basis of a defense that the defendants may have waived if they had appeared and not timely 

raised it. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006) (holding that an objection 

that a complaint failed to state a claim could not be asserted post-judgment). Then, we appointed 

counsel to defend on appeal the lawyering of these judicial officers on behalf of parties who 

never even appeared in court. Thus, through the magistrate judge, the district court judge, and 

the able counsel appointed by this Court, defendants may have obtained far more capable 

representation than they would have obtained had they not chosen voluntarily to default and 

instead retained their own counsel. 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

7 

 Separate and apart from the manner in which Rule 55(b) should be construed, we held in 

Trans World Airlines v. Hughes that, while a hearing was necessary on the issue of damages, 

“there was no burden on [the plaintiff] to show that any of [the defendant’s] acts pleaded in the 

complaint violated the antitrust laws nor to show that those acts caused the well-pleaded injuries, 

except as we have indicated that it had to for the purpose of establishing the extent of the injury 

caused [to the plaintiff], in dollars and cents.” 449 F.2d 51, 70 (2d Cir. 1971), rev’d on other 

grounds, 409 U.S. 363 (1973). On the contrary, we held that “[t]he default had the effect of 

admitting or establishing that the acts pleaded in the complaint violated the antitrust laws and 

that those acts caused injury to TWA in the respects there alleged.” Id. 

 We reiterated this holding in Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 

(2d Cir. 1995), where Judge McLaughlin observed “[t]here is no question that a default judgment 

establishes liability.” Indeed, writing in a later case, Judge McLaughlin held that this 

distinguishes default judgments from unopposed motions for summary judgment. Vermont 

Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004). There, the 

district judge granted an unopposed motion for summary judgment after assuming the truth of 

the allegations in the complaint and failing to analyze any of the complex legal and factual 

issues. Id. at 242, 245. Judge McLaughlin suggested that the district judge there had confused 

the procedure for addressing a motion for summary judgment with the procedure for addressing a 

default judgment. Vermont Teddy Bear, 373 F.3d at 242; see also Jackson v. Fed. Express, 766 

F.3d 189, 196 (2d Cir. 2014). 

 The majority expresses doubt, albeit in a footnote, whether these cases and, more 

particularly, Trans World Airlines “remain[] good law in light of this court’s subsequent 

jurisprudence.” Majority Op. at 29 n.17 (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

8 

2009)). This argument overlooks the principle that a panel of this Court is “bound by the 

decisions of prior panels until such time as they are overruled either by an en banc panel of our 

Court or by the Supreme Court.” Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 

F.3d 58, 67 (2d Cir. 2009) (internal quotation marks omitted). Neither Trans World Airlines nor 

the other cases which echo its language have been overruled in this manner or by the mini-en 

banc procedure that the majority employs here. Indeed, Finkel v. Romanowicz, upon which the 

majority relies, does not even acknowledge the existence of these cases. 

While there is dictum in Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 

1981), suggesting that a district judge “need not agree that the alleged facts constitute a valid 

cause of action,” that case did not allude to the prior Second Circuit cases to the contrary, and 

relied solely on the then-current version of § 2688 of Wright & Miller, which has not changed. 

Id. The latter, in turn, had relied principally on Ohio Cent. R. Co. v. Central Trust Co., 133 U.S. 

83 (1890). 10A Charles Alan Wright, Alan R. Miller & Mary Kane, Federal Practice and 

Procedure § 2688 at 60 (3d ed. 1998). In that case, the Supreme Court held only that the 

complaint “was taken as confessed; but that fact did not, in itself justify giving complainant more 

than it claimed.” Ohio Cent. R. Co., 133 U.S. at 90. In this context, the Supreme Court observed 

that, “under the rules and practice of this court in equity” a defaulting defendant is not precluded 

“on appeal . . . from insisting that the averments contained in it do not justify the decree.” Id. at 

90-91. Nevertheless, this language assumes a true adversary proceeding in which the defendant 

appears and challenges or asks to be relieved of the default judgment. Ohio Central does not 

sanction the proceeding in this case in which multiple judges—indeed, the judicial system 

itself—assumes an adversarial position on behalf of defaulting defendants. 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

9 

Moreover, the then-prevailing rules and practices of the Supreme Court preceded the 

adoption of the Federal Rules of Civil Procedure, including Fed. R. Civ. P. 12(h), which requires 

that a motion to dismiss a complaint for failure to state a claim must be made before judgment is 

entered in the district court, otherwise it is waived and cannot be raised on appeal. See Arbaugh, 

546 U.S. at 506-07. Thus, if a defendant appeared and failed to timely challenge the allegations 

in the complaint, it would be deemed waived. By contrast, the majority holds that a defendant 

who defaults does not waive the defense and is in a better position than one who appears. 

 Nevertheless, there is recent Second Circuit authority relying solely on the dictum in Au 

Bon Pain, and overlooking the Second Circuit cases to the contrary and discussed above, that 

hold that a district court has discretion to determine whether the allegations in the complaint, 

taken as true, establish a cause of action. See Priestley v. Headminder, Inc., 647 F.3d 497, 506 

(2d Cir. 2011); City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); 

Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). In two of these cases, the language can 

arguably be viewed as dictum because the alternative holding in one case was that the complaint 

stated a cause of action, Finkel, 577 F.3d at 84, and the holding in the other case that the issue 

was procedurally forfeited, Mickalis, 645 F.3d at 137. Moreover, in the third case the allegations 

in the complaint were not well-pleaded because they not only failed to support the theory of 

liability alleged, but “actually disproved it.” Priestley, 647 F.3d at 506.1 Under these 

circumstances, we need not resolve the conflict between the earlier and later cases because the 

district court ordered “that a default judgment be entered against [the] defendants . . . with the 

amount of the judgment to be determined after an inquest before . . . the magistrate judge.” 

Default J. & Inquest Order, Greathouse v. JHS Sec., Inc., No. 11-cv-7845 (S.D.N.Y. March 15, 

 

1

 The term “well-pleaded allegation” is a “term of art” that does not encompass the issue of whether the allegations 

in a complaint are sufficient to state a claim. See Trans World Airlines, 449 F.2d at 63 (“For example, an allegation 

made indefinite or erroneous by other allegations in the same complaint is not a well-pleaded allegation.”). 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

10 

2012), ECF No. 15. The problem here is not the failure of the district judge to enter a default 

judgment on the basis of the defendants’ failure to appear. Instead, it is the failure of the 

magistrate judge to follow the order of the district judge. 

B. The Default Judgment and the NYLL Retaliation Cause of Action 

 The district judge also rejected the plaintiff’s unopposed objection to the R&R that the 

magistrate judge failed to award damages on the NYLL retaliation claim. Greathouse v. JHS 

Sec. Inc., No. 11 CIV. 7845 (PAE) (GWG), 2012 WL 5185591, at *6 (S.D.N.Y. Oct. 19, 2012). 

He reasoned that this claim had not been addressed because the plaintiff’s “proposed findings of 

fact and conclusions of law did not make any request for damages on account of that claim,” and 

“[g]enerally, courts do not consider new arguments . . . raised in objections to a magistrate 

judge’s report and recommendation that were not raised, and thus were not considered, by the 

magistrate judge.” Id. There are two problems with this holding. 

 First, Greathouse’s proposed findings of fact and conclusions of law can be reasonably be 

read as seeking damages on both the FLSA and NYLL retaliation causes of action. Proposed 

Findings of Fact & Conclusions of Law, Greathouse v. JHS Sec., Inc., No. 11-cv-7845 (S.D.N.Y. 

May 8, 2012), ECF No. 22. In that document, Greathouse argued that “[i]n addition to the 

damages related to the nonpayment and underpayment of wages, Plaintiff is also entitled to 

recover for damages related to his retaliation claims.” Id at 13 (emphasis added). The word 

“claims,” by its plural form, clearly referred to both retaliation claims, not simply the FLSA 

claim. While Greathouse addressed the issue of whether he could recover on the FLSA claim in 

light of Lambert and Kasten, he had no reason to specifically address this issue with respect to 

the NYLL retaliation claim because unlike the FLSA claim as construed in Lambert, the NYLL 

claim was not dependent on whether the complaint which caused his employer to retaliate 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

11 

against the plaintiff was made to his supervisor, rather than a governmental agency. Under these 

circumstances, his failure to specifically address the latter cause of action should not have been 

viewed by the district court as a waiver of the claim. 

Second, the district judge may have unintentionally led Greathouse astray by directing an 

inquest solely on the issue of damages. In so doing, he may have lulled Greathouse into 

believing that the liability phase of the case was over. Greathouse had no reason explicitly 

justify his NYLL claim because he had already prevailed on his FLSA claim—or so he 

(reasonably) thought. Had he known there was a problem with the FLSA claim, he might have 

acted to more explicitly address his NYLL claim, as he ultimately did when he objected to the 

R&R. 

 Finally, the so-called “general rule,” on which the district judge relied, is a judge-made 

rule that should not automatically be applied without regard to the circumstances of a particular 

case. Indeed, we have held that “an appellate court has discretion . . . to review of its own 

motion any error not saved by a timely objection.” Curko v. William & Son, Corp., 294 F.2d 

410, 413-14 (2d Cir. 1961); see also Valdez ex rel. Donnelly v. U.S., 518 F.3d 173, 181 (2d Cir. 

2008). We do so when necessary to avoid a miscarriage of justice or to remedy “an obvious 

instance of misapplied law.” Caruolo v. John Crane, Inc., 226 F.3d 46, 55 (2d Cir. 2000). 

Moreover, while we apply a stringent standard for our consideration of trial errors, “which 

implicate the significant policy considerations underlying the need for a timely objection, 

namely, the avoidance of an unnecessary retrial,” we have suggested that a more forgiving 

standard is justified when such policy considerations are not present. Valdez, 518 F.3d at 182. 

Indeed, in Williams v. City of New York, 508 F.2d 356, 362 (2d Cir. 1974), we held that one 

consideration weighing in favor of noticing a plain error in a jury instruction for punitive 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

12 

damages was “the remediability of [the] error without a new trial below.” Indeed, in United 

States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997), we held that a district judge had 

discretion to reconsider a ruling of the magistrate judge even where no objection to it was filed. 

In the present case, the failure of the magistrate judge to award damages on the NYLL 

retaliation claim deprived Greathouse of relief to which he was entitled based on the defendants’ 

outrageous conduct. Moreover, a remand to the magistrate judge would not have involved a 

duplication of effort in which he had already engaged when he conducted the inquest on 

damages. A remand in the present case would not involve reopening a hearing at which 

testimony was taken. On the contrary, the magistrate judge did not address the amount of the 

damage award on either the FLSA retaliation or NYLL retaliation claim. A remand would 

simply require him to do a mathematical calculation based on the information that Greathouse 

has previously provided regarding the damages to which he was entitled as a result of his 

retaliatory termination—a much easier task than the one the majority dumps in his lap on 

remand. 

II. The Validity of Lambert

 My dissent is not dependent on the continued validity of Lambert. Nevertheless, I add 

these words because it adds further support to my view that this case is not the appropriate one to 

reach that issue. In Lambert, we explicitly held that the retaliation cause of action created by the 

FLSA “does not encompass [retaliation for] complaints made to a supervisor.” Lambert v. 

Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993). The case did not turn on whether the complaint 

was oral or written. Instead, it turned on the separate issue of the proper recipient of the 

complaint that triggered retaliatory action by the employer. Judge Walker, writing for the panel, 

explained that, while a retaliation cause of action under Title VII could be based on a complaint 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

13 

made to an employer, the language of the FLSA, as amended by the Equal Pay Act (“EPA”), was 

much narrower in scope. 

Title VII broadly provides that “[i]t shall be an unlawful 

employment practice for an employer to discriminate against any 

of his employees . . . because he has opposed any practice made an 

unlawful employment practice by this subchapter, or because he 

has made a charge, testified, assisted, or participated in any manner 

in an investigation, proceeding, or hearing under this subchapter.” 

42 U.S.C. § 2000e–3(a). The phrase “opposed any practice” 

encompasses an individual's complaints to supervisors regardless 

of whether she also files an EEOC charge. 

In contrast, FLSA’s anti-retaliation provision makes it unlawful “to 

discharge or in any other manner discriminate against any 

employee because such employee has filed any complaint or 

instituted or caused to be instituted any proceeding under or related 

to this chapter, or has testified or is about to testify in any such 

proceeding, or has served or is about to serve on an industry 

committee.” 29 U.S.C. § 215(a)(3). The EPA is an amendment to 

the FLSA and is codified under the same chapter; thus retaliation 

for filing EPA complaints falls under § 215(a)(3). The plain 

language of this provision limits the cause of action to retaliation 

for filing formal complaints, instituting a proceeding, or testifying, 

but does not encompass complaints made to a supervisor. 

Id. 

 In reaching this conclusion, Judge Walker acknowledged that it was contrary to the 

holdings in a number of circuits and to the EEOC’s “interpretation in its compliance manual that 

the EPA retaliation provisions should encompass informal workplace complaints.” Id. 

Nevertheless, he explained that “[b]ecause we hold that the statute’s language is plain and 

unambiguous we need not defer to the EEOC’s interpretation in its compliance manual that the 

EPA retaliation provisions should encompass informal workplace complaints.” Id. 

 The Supreme Court has subsequently held that a complaint by an employee that triggers 

retaliatory action by his employer need not be in writing. Kasten v. Saint-Gobain Performance 

Plastics Corp., 131 S. Ct. 1325 (2011). Unlike Lambert, which focused on the language relating 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

14 

to the issue of with whom a complaint must be filed, Kasten focused solely on the issue of 

whether an oral complaint is encompassed within the meaning of the word “filed.” Id. at 1331. 

Relying on the “dictionary definitions” of the term, research that disclosed “that legislators, 

administrators, and judges have all sometimes used the word ‘file’ in conjunction with oral 

statements,” and “that oral filings were a known phenomenon at the time of the Act’s passage,” 

the Court concluded that “[t]he phrase ‘filed any complaint’ might, or might not, encompass oral 

complaints.” Id. at 1331-32. Indeed, Justice Breyer, writing for the majority, observed that oral 

complaints can be made to government agencies through “hotlines, interviews, and other oral 

methods of receiving complaints.” Kasten, 131 S. Ct. at 1334. Moreover, the Department of 

Labor, in accordance with its position that the FLSA retaliation provision covered oral 

complaints, had “creat[ed] a hotline to receive oral complaints.” Id. at 1335. Consequently, the 

Supreme Court looked at other factors relating to statutory interpretation to hold that the word 

“filed” encompassed oral complaints. Id. at 1332-36. 

 Nevertheless, Kasten expressly left open the issue we decided in Lambert that a 

complaint—oral or written—made only to a supervisor may not provide the predicate for an 

FLSA retaliation claim. Id. at 1336. While the complaint in Kasten was made to a supervisor, 

the employer, Saint Gobain, did not properly preserve the issue for consideration by the Supreme 

Court. Id. Nor could Saint Gobain take advantage of an exception that would have permitted 

the Supreme Court to consider the issue on the ground that it was a necessary “predicate to an 

intelligent resolution of the oral written question that [it] granted certiorari to decide.” Id.

(internal quotation marks omitted). As Justice Breyer succinctly stated: “That is to say, we can 

decide the oral/written question separately—on its own. Thus, we state no view on the merits of 

Saint-Gobain’s alternative claim.” Id. Nevertheless, the majority declines to take Justice Breyer 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

15 

at his word, and insists that Kasten compels us to consider in this case the issue that the Supreme 

Court declined to address. I do not agree that we must do so here. 

 I observed earlier that a panel of this Court is “bound by the decisions of prior panels 

until such time as they are overruled either by an en banc panel of our Court or by the Supreme 

Court.” Shipping Corp., 585 F.3d at 67 (internal quotation marks omitted). Where an 

intervening Supreme Court decision “casts doubt on the prior ruling,” however, that general rule 

does not apply. Finkel v. Stratton Corp., 962 F.2d 169, 174-75 (2d Cir. 1992); see also In re 

Zarnel, 619 F.3d 156, 168 (2d Cir. 2010); Union of Needletrades, Indus. & Textile Emps. v. INS, 

336 F.3d 200, 2010 (2d Cir. 2003). The intervening decision “need not address the precise issue 

decided by the panel for this exception to apply.” In re Zarnel, 619 F.3d at 168; see also 

Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 274 (2d Cir. 2005) (overruling prior panel when 

intervening Supreme Court decision “entirely undermine[d]” the assumption underlying the prior 

panel’s statutory analysis). 

In re Zarnel provides a particularly informative example of a case in which we overruled 

a prior holding based on an intervening Supreme Court ruling. The prior Second Circuit case 

held that the failure of the allegations in the complaint to satisfy the requirements to obtain relief 

under the statute deprived the district court of subject matter jurisdiction. In re BDC 56 LLC, 

330 F.3d 111 (2d Cir. 2003). A subsequent Supreme Court ruling set out a standard for resolving 

when a statutory limitation on coverage is jurisdictional. Arbaugh, 546 U.S. at 515-16. More 

specifically, it held “[i]f the Legislature clearly states that a threshold limitation on a statute’s 

scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not 

be left to wrestle with the issue. . . . But when Congress does not rank a statutory limitation on 

coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

16 

Id. (footnote and internal citation omitted). The statute at issue in In re Zarnel, was not the same 

statute that we had construed in In re BDC 56. Nevertheless, we explained that the standard set 

out in Arbaugh compelled the conclusion that the limitation on statutory coverage at issue in In 

re BDC 56 was not jurisdictional, and that In re BDC 56 should be overruled. In re Zarnel, 619 

F.3d at 169 (“We find that, in light of Arbaugh, In re BDC LLC can no longer be considered 

good law on this point.”). 

 The circumstances here do not approach those in In re Zarnel, if only because the 

Supreme Court in Kasten left open the issue that Lambert decided, and did not adopt a broad rule 

that would cover the facts in that case. Nor does the fact that “[t]he Lambert court’s conclusion 

. . . is contrary to the weight of authority in our sister circuits,” as the majority observes, 

necessarily provide a basis for rejecting its holding here.2

 Indeed, Judge Walker’s unanimous 

opinion in Lambert acknowledged “that a number of our sister circuits have held to the 

contrary.” Lambert 10 F.3d at 55. Significantly, he cited with approval a dissenting opinion in 

one of those cases. Id. (citing EEOC v. Romeo Community Sch., 976 F.2d 985, 990 (6th Cir. 

1992) (Surheinrich, J., dissenting)). Moreover, he also declined to adopt the EEOC’s 

interpretation of the statute in its compliance manual. Lambert, 10 F.3d at 55. 

 In sum, three distinguished judges of the Second Circuit (Judges Lumbard, Winter, and 

Walker) and the only two Supreme Court Justices (Justices Scalia and Thomas) who have spoken 

to the issue agree that the FLSA does not encompass complaints made to a supervisor. Indeed, 

Justice Scalia, who reached the issue of to whom a complaint must be filed, makes a compelling 

argument supporting and supplementing the holding in Lambert. See Kasten, 131 S. Ct at 1336-

 

2

 The fact that other circuits may disagree is not an answer to this argument. Indeed, it is worth recalling that in 

McNally v. United States, 483 U.S. 350 (1987), the Supreme Court rejected the unanimous construction of the mail 

fraud statute, 18 U.S.C. § 1341, by all of the circuits. See id. at 376 (Stevens, J., dissenting). 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

17 

41 (Scalia, J., dissenting).3 The Kasten majority did not respond to Justice Scalia’s argument, 

because it declined to reach the issue, and the majority here likewise does not do so. While I do 

not suggest that the majority’s position is unreasonable, Lambert’s continuing validity should not 

be resolved in the unusual procedural context of this case. 

III. The Application of Kasten

 There is one more reason why this case is not an appropriate one to reconsider Lambert. 

Simply stated, Greathouse cannot recover under the standard set out in Kasten. Even if the 

Supreme Court had overruled Lambert, the oral complaint made by the plaintiff in this case does 

not satisfy the standard the Supreme Court prescribed in Kasten for an employee to prevail on an 

FLSA retaliation cause of action. In that case, the Supreme Court described an oral complaint 

that would satisfy the FLSA as follows: 

To fall within the scope of the antiretaliation provision, a complaint 

must be sufficiently clear and detailed for a reasonable employer to 

understand it, in light of both content and context, as an assertion of 

rights protected by the statute and a call for their protection. This 

standard can be met, however, by oral complaints, as well as by 

written ones. 

131 S. Ct. at 1335. The oral complaint in this case does not meet this standard. Nor does the 

majority hold that it does. As described in the majority opinion, Greathouse complained to the 

defendant Wilcox, the owner and president of JHS, that he had not been paid in several months. 

If this complaint had been made to a government agency, such as the Department of Labor, the 

very nature of the complaint and the entity to which it was made would have put the employer on 

notice of an assertion of rights protected by the statute. Id. at 1341 (Scalia, J., dissenting) 

 

3

 While Justice Scalia’s dissent in Kasten voiced concerns over the effect that the analysis in Kasten would have on 

the issue in the present case, it is helpful to recall Judge Friendly’s admonition that “dissenting opinions are not 

always a reliable guide to the meaning of the majority; often their predictions partake of Cassandra’s gloom more 

than of her accuracy.” Local 1545 United Broth. Of Carpenters and Joiners of America, AFL-CIO v. Vincent, 286 

F.2d 127, 132 (2d Cir. 1960). 
Greathouse v. JHS Security, Inc., No. 12-4521-cv 

18 

(“Filing a complaint with a judicial or administrative body is quite obviously an unambiguous 

assertion of one’s rights.”). 

 Greathouse’s simple complaint to JHS when he was not paid did not put the employer on 

such notice. Indeed, the explicit complaint made by the employee in Kasten provides a useful 

contrast. Id. at 1329-30. There, the employee—Kasten—complained that the location of time 

clocks “prevented workers from receiving credit for the time they spent putting on and taking off 

their work clothes.” Id. at 1329. Kasten not only repeatedly called the issue to Saint Grobain’s 

attention in accordance with the latter’s internal grievance review procedure, he also told his 

shift supervisor that “it was illegal for the time clocks to be where they were.” Id. at 1330. 

Moreover, he told a human resources employee that “‘if they were challenged on’ the location in 

court, ‘they would lose.’” Id. Finally, he told his lead operator that he “was thinking about 

starting a lawsuit about the placement of the time clocks.” Id. The oral complaint in this case 

does not come close to approaching the specificity and clarity of the complaint in Kasten. By 

leaving this question undecided, the majority sets this case on a potentially wasteful and 

circuitous route. If the district court finds that the notice given to the employer was insufficient, 

then the case would presumably be headed back here once again and we would again be in the 

position of considering whether to appoint counsel for a defaulting defendant. 

 In conclusion, I would reverse the judgment of the district court and remand for the 

calculation of damages on Greathouse’s claim of retaliatory termination. Because the damages 

overlap, and because Greathouse is not entitled to a double recovery, it is not relevant on which 

cause of action the district judge makes that determination. Unlike the majority, I would not 

remand to the district court to determine whether the complaint that Greathouse made to his 

employer provided a sufficient predicate to an FLSA retaliation cause of action.