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,

on the 8th 4 day of May, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges,

9 JOHN G. KOELTL,

District Judge.* 10

11

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13 AYSHEA L. DUNN, 

14 Plaintiff-Appellant,

15

16 -v.- 12-5046

17

18 JOHN SEDERAKIS, SABRINA BROWN, 

Defendants-Appellees.** 19

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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. Saint12 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

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.

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