784 F.3d 105 (2nd Cir. 2015), 12-4521-cv, Greathouse v. JHS Security Inc.

• Docket Nº: 12-4521-cv
• Citation: 784 F.3d 105
• Opinion Judge: Susan L. Carney, Circuit Judge :
• Party Name: DARNELL GREATHOUSE, Plaintiff-Appellant, v. JHS SECURITY INC., MELVIN WILCOX, Defendants-Appellees
• Attorney: PENN U. DODSON, Anderson Dodson, P.C., New York, New York, for Plaintiff-Appellant. ALEXANDER BOGDAN (Vilia B. Hayes, on the brief), Hughes Hubbard & Reed LLP, New York, New York, amicus curiae counsel appointed by the Court in support of Defendants-Appellees. PAUL L. EDENFIELD, Attorney (M. Patr...
• Judge Panel: Before: POOLER and CARNEY, Circuit Judges, and KORMAN, District Judge.[*] Judge KORMAN concurs in part and dissents in part in a separate opinion. Edward R. Korman, District Judge, concurring in part, dissenting in part:
• Case Date: April 20, 2015
• Court: United States Courts of Appeals, United States Court of Appeals (2nd Circuit)

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784 F.3d 105 (2nd Cir. 2015)

DARNELL GREATHOUSE, Plaintiff-Appellant,

v.

JHS SECURITY INC., MELVIN WILCOX, Defendants-Appellees

No. 12-4521-cv

United States Court of Appeals, Second Circuit

April 20, 2015

Argued: June 10, 2013.

As Amended April 23, 2015.

Appeal from a final judgment of the United States District Court for the Southern District of New York (Engelmayer, J.), adopting the Report and Recommendation of a Magistrate Judge (Gorenstein, M.J.), and declining to award damages, following entry of default, to Plaintiff-Appellant Darnell Greathouse on his retaliation claim brought under the Fair Labor Standards Act(" FLSA" ), 29 U.S.C. 1 § § 215(a)(3), 216. Greathouse alleged that his employer retaliated against him in violation of section 215(a)(3) when he orally complained to his employer that he had not received the pay he was due. The District Court's ruling against Greathouse turned on our decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993), which held that making an informal oral complaint to a supervisor did not amount to " fil[ing a] complaint" and therefore was not protected by the statute. We now conclude that the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 179 L.Ed.2d 379(2011), which held that an oral complaint can serve as a predicate to an FLS Aretaliation claim, casts doubt on the continued validity of our ruling in Lambert. Accordingly, we overrule Lambert insofar as Kasten has not already done so. We VACATE the judgment of the District Court, and REMAND the cause for further proceedings consistent herewith.

PENN U. DODSON, Anderson Dodson, P.C., New York, New York, for Plaintiff-Appellant.

ALEXANDER BOGDAN (Vilia B. Hayes, on the brief), Hughes Hubbard & Reed LLP, New York, New York, amicus curiae counsel appointed by the Court in support of Defendants-Appellees.

PAUL L. EDENFIELD, Attorney (M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, on the brief), U.S. Department of Labor, Office of the Solicitor, Washington, D.C., for amicus curiae Acting Secretary of Labor in support of Plaintiff-Appellant.

TSEDEYE GEBRESELASSIE (Catherine K. Ruckelshaus, on the brief), National Employment Law Project, New York, New York, for amici curiae Make the Road New York, Brandworkers International, Restaurant Opportunities Center of New York, National Employment Law Project, Legal Aid Society, Asian American Legal Defense and Education Fund, and Urban Justice Center in support of Plaintiff-Appellant.

Before: POOLER and CARNEY, Circuit Judges, and KORMAN, District Judge.^[*] Judge KORMAN concurs in part and dissents in part in a separate opinion.

OPINION

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Susan L. Carney, Circuit Judge :

In this appeal, we consider the effect of the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011), on our 1993 decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993), concerning what constitutes " fil[ing a] complaint" under the anti-retaliation provision of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 215(a)(3).

Section 215(a)(3) makes it unlawful " to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . related to" FLSA's provisions. In Lambert, we read section 215(a)(3) to require that an employee pursuing a claim for unlawful retaliation have done more than voice an equal pay complaint to a supervisor. 10 F.3d at 55-56. To serve as a predicate for an FLSA retaliation claim, we held, a complaint must be " formal[ly]" filed, see Id. 1 -- a condition that we have subsequently interpreted to require (1) a written complaint, that is (2) filed with a government agency.¹

In its 2011 decision in Kasten, however, the Supreme Court held that the section's pivotal phrase -- " filed any complaint" -- encompasses oral as well as written complaints,

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so long as the complaint is " 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." 131 S.Ct. at 1335. To the extent, then, that Lambert turned on the oral nature of the complaint made by the employee, Kasten rejected Lambert's analysis. The Kasten Court refrained, however, from addressing the second factor on which the Lambert analysis hinged: that the complaint must be directed to a government agency, not merely to a supervisor in the ranks of the defendant employer. Kasten, 131 S.Ct. at 1336. Although Kasten itself arose in the context of an oral complaint made to an employer, not a government agency, the Kasten Court declined to address specifically whether retaliation for a complaint made to an employer is actionable. See Id. at 1336.

Kasten overrules Lambert's requirement that an employee seeking section 215(a)(3)'s protections file a written complaint. As we discuss below, Kasten also casts doubt on Lambert's second requirement: that, for an employee's complaint to fall within the protections of section 215(a)(3), it be made to a government agency. Indeed, we not long ago characterized Kasten (albeit in a footnote) as effecting an " abrogation of our precedent in this area." Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 n.3 (2d Cir. 2011). Lambert's holding in this respect is at odds, moreover, with the weight of authority in our sister circuits, and with the consistently held position of the two authorities charged with section 215(a)(3)'s enforcement: the Secretary of Labor and the Equal Employment Opportunity Commission (" EEOC" ).

Therefore, today, we overrule Lambert to the extent it holds that section 215(a)(3) requires an employee to have filed a complaint with a government agency as a predicate for an FLSA retaliation claim.² We conclude that an employee may premise a section 215(a)(3) retaliation action on an oral complaint made to an employer, so long as -- pursuant to Kasten -- the complaint is " 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." 131 S.Ct. at 1335. Accordingly, because the District Court denied Greathouse damages on his claim for retaliatory discharge based entirely on Lambert's rule, we vacate the judgment insofar as it relied on Lambert and remand the cause for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

We recite the facts as found by the Magistrate Judge in a report and recommendation that was adopted by the District Court. See Greathouse v. JHS Sec., Inc., No. 11 Civ. 7845 (PAE) (GWG), 2012 WL 3871523 (S.D.N.Y. Sept. 7, 2012), adopted by 2012 WL 5185591 (S.D.N.Y. Oct. 19, 2012). Because both defendants defaulted, the Magistrate Judge properly accepted as true the well-pleaded factual allegations of Greathouse's complaint regarding liability, and provided for further proceedings 1 to determine the appropriate damage award. See SEC v. Razmilovic, 738 F.3d 14, 19 (2d Cir. 2013).

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From September 2006 through October 14, 2011, plaintiff Darnell Greathouse worked as a security guard for defendant JHS Security Inc. (" JHS" ). Greathouse considered defendant Melvin Wilcox, the president and part-owner of JHS, to be his " boss." Greathouse, 2012 WL 3871523, at *2. During the course of his employment with JHS, Greathouse was the victim of a number of improper employment practices, including non-payment and late payment of wages, and improper payroll deductions. Although Wilcox repeatedly told Greathouse that he would receive his outstanding paychecks, those checks never arrived.

On October 14, 2011, Greathouse complained to Wilcox that he had not been paid in several months. Wilcox responded, " I'll pay you when I feel like it," and, without warning, drew a gun and pointed it at Greathouse. Greathouse, 2012 WL 3871523, at *2. Greathouse understood that response as ending his employment with JHS.

About two weeks later, Greathouse filed his complaint in the United States District Court for the 1 Southern District of New York. In addition to various FLSA and New York Labor Law (" NYLL" ) claims related to his missing and improperly reduced wages,³ he alleged that Wilcox and JHS (through Wilcox) had effectively discharged him in retaliation for his October 14th complaint, thereby violating section 215(a)(3) and the NYLL.

Several months later, after neither defendant appeared or filed an answer, the clerk of court entered defaults against both. The District Court then referred the matter to a magistrate judge to evaluate Greathouse's claims for damages. The Magistrate Judge issued a Report and Recommendation in September 2012, recommending that the District Court enter a damages award in the total amount of $30,658.50, plus prejudgment interest, for Greathouse's claims for unpaid overtime, unpaid wages, improper deductions, and liquidated damages under the NYLL. Greathouse, 2012 WL 3871523, at *12.

As to the retaliation claim, however, the Magistrate Judge concluded that Lambert barred an award because Greathouse had not filed a complaint with any government agency or other prosecutorial authority, but had merely confronted his employer in person to 1 demand his missing wages. The Magistrate Judge recognized that, under the Supreme Court's holding in Kasten, an oral complaint may serve as a predicate for an FLSA retaliation claim. The Magistrate Judge correctly acknowledged, however, that Kasten did not overturn Lambert insofar as we held there that a complaint made to a supervisor is not a complaint " filed" under section 215(a)(3).

Greathouse filed objections to the Magistrate Judge's report in the District Court, contesting, ...