     12-5046
     Dunn v. Sederakis

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                JOHN G. KOELTL,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       AYSHEA L. DUNN,
14                Plaintiff-Appellant,
15
16                    -v.-                                               12-5046
17
18       JOHN SEDERAKIS, SABRINA BROWN,
19                Defendants-Appellees.**
20       - - - - - - - - - - - - - - - - - - - -X
21

                *
               Judge John G. Koeltl, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                **
                The Clerk of Court is directed to amend the case
         caption as above.
                                                  1
 1   FOR APPELLANT:             Chinyere Okoronkwo, New York,
 2                              New York.
 3
 4   FOR APPELLEES:             Leslie B. Dubeck, Barbara D.
 5                              Underwood, Steven C. Wu, for
 6                              Eric T. Schneiderman, Attorney
 7                              General of the State of New
 8                              York, New York, New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Southern District of New York (Engelmayer,
12   J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED in part and VACATED and REMANDED in part.
17
18        Ayshea Dunn appeals from the judgment of the United
19   States District Court for the Southern District of New York
20   (Engelmayer, J.), dismissing pursuant to Federal Rule of
21   Civil Procedure 12(b)(6) Dunn’s retaliation claim under the
22   Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201
23   et seq. We assume the parties’ familiarity with the
24   underlying facts, the procedural history, and the issues
25   presented for review.
26
27        Dunn’s Second Amended Complaint alleged that her
28   supervisors retaliated against her for, among other
29   protected activities, registering oral complaints with her
30   supervisors in July and August 2008. The district court
31   dismissed the retaliation claim, holding in part that the
32   oral complaints to Dunn’s supervisors were not protected
33   activity under Section 15(a)(3) of the FLSA. On appeal,
34   Dunn challenges that holding in light of recent changes in
35   the law.
36
37        We review de novo the district court’s grant of a
38   motion to dismiss under Rule 12(b)(6), “accept[ing] as true
39   all allegations in the complaint and draw[ing] all
40   reasonable inferences in favor of the non-moving party.”
41   Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d
42   Cir. 2007).
43
44        The district court’s ruling that oral complaints to
45   supervisors are not protected activity under the FLSA relied
46   on our decision in Lambert v. Genesee Hospital, 10 F.3d 46
47   (2d Cir. 1993), which held that the FLSA “limits the cause

                                  2
 1   of action to retaliation for filing formal complaints,
 2   instituting a proceeding, or testifying, but does not
 3   encompass complaints made to a supervisor.” Id. at 55. In
 4   the intervening time since the district court entered
 5   judgment in this case, we have overruled Lambert. See
 6   Greathouse v. JHS Sec. Inc., No. 12-4521-cv, slip op. at 5-6
 7   (2d Cir. Apr. 20, 2015). Greathouse holds:
 8
 9         [A]n employee may premise a section 215(a)(3)
10         retaliation action on an oral complaint made to an
11         employer, so long as--pursuant to [Kasten v. Saint-
12         Gobain Performance Plastics Corp., 131 S. Ct. 1325
13         (2011)]--the complaint is “sufficiently clear and
14         detailed for a reasonable employer to understand it,
15         in light of both content and context, as an
16         assertion of rights protected by the statute and a
17         call for their protection.” 131 S. Ct. at 1335.
18
19   Id.
20
21        The district court thus applied our circuit’s law then
22   in effect; but its basis for dismissal may no longer be
23   sound under Greathouse. We therefore vacate the dismissal
24   of Dunn’s FLSA retaliation claim. On remand, the district
25   court should consider whether Dunn’s claim describes an oral
26   complaint that survives Greathouse and Kasten’s standard of
27   clarity and detail.1
28



           1
           On remand, the district court is free to revisit (or
     not) Dunn’s complaint to the New York State Division of
     Human Rights (“NYSDHR”). Dunn alleges that her complaint to
     the NYSDHR constituted yet another protected activity, but
     she urges on appeal that the district court must not look at
     the face of the NYSDHR complaint itself. On a motion to
     dismiss, a court may consider both: (a) documents
     incorporated by reference into the complaint and
     (b) unincorporated documents that are integral to the
     complaint and upon which the complaint heavily relies. See
     Chambers v. Time Warner Inc., 282 F.3d 147, 152–53 (2d Cir.
     2002). If the district court chooses on remand to revisit
     whether Dunn plausibly and specifically pled the elements of
     an FLSA retaliation claim based on the NYSDHR complaint, it
     may consider the content of that complaint, as it did
     before.
                                    3
1        For the foregoing reasons, and finding no merit in
2   Dunn’s other arguments, we hereby VACATE and REMAND the
3   judgment of the district court for further proceedings
4   consistent with Greathouse.
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




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