12-5046 Dunn v. Sederakis



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 8 th** **day of May, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **Circuit Judges ,**  8 **JOHN G. KOELTL,** 9 **District Judge**

**.** * 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **AYSHEA L. DUNN,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 12-5046** 16 17 **JOHN SEDERAKIS, SABRINA BROWN,** 18 **Defendants-Appellees**

**.** ** 19 - - - - - - - - - - - - - - - - - - - -X 20 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**FOR APPELLANT:** Chinyere Okoronkwo, New York, 1 New York. 2 3 **FOR APPELLEES:** Leslie B. Dubeck, Barbara D. 4 Underwood, Steven C. Wu, for 5 Eric T. Schneiderman, Attorney 6 General of the State of New 7 York, New York, New York. 8 9 Appeal from a judgment of the United States District 10 Court for the Southern District of New York (Engelmayer, 11 J. ). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14 **AND DECREED**that the judgment of the district court be 15
**AFFIRMED**in part and **VACATED and REMANDED**in part. 16 17 Ayshea Dunn appeals from the judgment of the United 18 States District Court for the Southern District of New York 19 (Engelmayer, J. ), dismissing pursuant to Federal Rule of 20 Civil Procedure 12(b)(6) Dunn’s retaliation claim under the 21 Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 22 et seq

. We assume the parties’ familiarity with the 23 underlying facts, the procedural history, and the issues 24 presented for review. 25 26 Dunn’s Second Amended Complaint alleged that her 27 supervisors retaliated against her for, among other 28 protected activities, registering oral complaints with her 29 supervisors in July and August 2008. The district court 30 dismissed the retaliation claim, holding in part that the 31 oral complaints to Dunn’s supervisors were not protected 32 activity under Section 15(a)(3) of the FLSA. On appeal, 33 Dunn challenges that holding in light of recent changes in 34 the law

. 35 36 We review de novo the district court’s grant of a 37 motion to dismiss under Rule 12(b)(6), “accept[ing] as true 38 all allegations in the complaint and draw[ing] all 39 reasonable inferences in favor of the non-moving party.” 40 Gorman v. Consol. Edison Corp. , 488 F.3d 586, 591-92 (2d 41 Cir. 2007). 42 43 The district court’s ruling that oral complaints to 44 supervisors are not protected activity under the FLSA relied 45 on our decision in Lambert v. Genesee Hospital , 10 F.3d 46 46 (2d Cir. 1993), which held that the FLSA “limits the cause 47

2of action to retaliation for filing formal complaints, 1 instituting a proceeding, or testifying, but does not 2 encompass complaints made to a supervisor.” Id. at 55. In 3 the intervening time since the district court entered 4 judgment in this case, we have overruled Lambert . See 5 Greathouse v. JHS Sec. Inc. , No. 12-4521-cv, slip op. at 5-6 6 (2d Cir. Apr. 20, 2015). Greathouse holds: 7 8 [A]n employee may premise a section 215(a)(3) 9 retaliation action on an oral complaint made to an 10 employer, so long as--pursuant to [Kasten v. Saint11 Gobain Performance Plastics Corp. , 131 S. Ct. 1325 12 (2011)]--the complaint is “sufficiently clear and 13 detailed for a reasonable employer to understand it, 14 in light of both content and context, as an 15 assertion of rights protected by the statute and a 16 call for their protection.” 131 S. Ct. at 1335. 17 18 Id. 19 20 The district court thus applied our circuit’s law then 21 in effect; but its basis for dismissal may no longer be 22 sound under Greathouse . We therefore vacate the dismissal 23 of Dunn’s FLSA retaliation claim. On remand, the district 24 court should consider whether Dunn’s claim describes an oral 25 complaint that survives Greathouse and Kasten ’s standard of 26 clarity and detail. 1 27 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.

3For the foregoing reasons, and finding no merit in 1 Dunn’s other arguments, we hereby **VACATE** and **REMAND**the 2 judgment of the district court for further proceedings 3 consistent with Greathouse

. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8

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