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.
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.
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,
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. 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).
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, 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, inter alia, the Magistrate Judge's finding that Greathouse was not entitled to damages for his FLSA retaliation claim. The District Court rejected Greathouse's objection on this issue, agreeing with the Magistrate Judge about the continued import of Lambert. The District Court subsequently adopted the Magistrate Judge's conclusions, subject only to two minor exceptions not relevant here, and the District Court entered default judgment.
On appeal, Greathouse argues primarily that, in light of Kasten, we should overrule what remains of Lambert and squarely hold that FLSA prohibits retaliation against employees who complain orally to their employers about perceived FLSA violations. Because defendants defaulted in the District Court and never filed an appearance in this Court, we appointed pro bono counsel to argue, as amicus curiae in support of defendants, that the Supreme Court's decision in Kasten did not abrogate our holding in Lambert and that the Lambert rule with respect to intra-company complaints should survive. The two administrative authorities charged with administering FLSA -- the EEOC and the Secretary of Labor -- filed amicus briefs in support of Greathouse's position.
Section 215(a)(3) forbids " any person" from " discharg[ing] or in any other manner discriminat[ing] 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 . . . ." 29 U.S.C. § 215(a)(3) (emphasis added). As described above, the Supreme Court held in Kasten that FLSA's anti-retaliation provision " includes oral as well as written complaints." 131 S.Ct. at 1329. The Court overruled Lambert and our precedent following Lambert to the extent that Lambert required an employee to have filed a written complaint to claim FLSA's protections. Id. at 1330 (citing 1 Lambert as a contrary decision). But the Kasten Court expressly declined to address the question whether an employer's retaliation for an intra-company complaint is actionable under FLSA. Id. at 1336.
It is difficult to ignore, however, that the complaint at issue in Kasten was lodged not with a government agency, but with an employer. See Id. at 1340-41 (Scalia, J., dissenting). Although slightly different concerns animated the Court's discussion in Kasten, an interpretation that excludes clearly stated complaints from protection because they were made to the employer instead of a government agency would run counter to the broadly remedial purpose that the Kasten Court instructed FLSA serves. See Id. at 1334. So, although we recognize that the Court has not yet ruled on this precise question, we conclude that its ruling in Kasten must be read as casting serious doubt on the second component of our ruling in Lambert.
A. Our Holding in Lambert
In Lambert, three female employees alleged that their employer, Genesee Hospital (the " Hospital" ), retaliated against them in violation of the Equal Pay Act of 1963 (" EPA" ), 29 U.S.C. § 206(d), a 1 statute that amended FLSA. 10 F.3d at 50. Two of the plaintiffs, Janine Lambert and Eva Baker, alleged that they complained to their departmental supervisor and to a member of the Hospital's employee-affairs department about Baker's salary, which in their view was unfairly lower than that of a male employee in the department (Francis Dupre), whose responsibilities were substantially equivalent to Baker's. Id. at 51.
About one year after Lambert and Baker complained, the supervisor selected Dupre to manage the department. Id. Citing that incident and others, Lambert,
Baker, and one of their female colleagues sued the Hospital, their supervisor, and Dupre, alleging that Dupre's promotion over Baker was made in 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).
The district court assumed that plaintiffs' allegations stated a retaliation claim under section 215(a)(3), Lambert, 10 F.3d at 56, and the case proceeded to trial, where a jury found for plaintiffs on their retaliation claim as well as on their equal pay claim, Id. at 51-52. After trial, however, the district court granted defendants' motion for judgment 1 notwithstanding the verdict. Id. at 52. Plaintiffs appealed the resulting dismissal.
On appeal, we held that the district court erred in granting judgment to defendants on plaintiffs' retaliation claim because defendants had waived their legal argument. Id. at 54. Nonetheless, we dismissed plaintiffs' section 215(a)(3) claim, on our own accord, for failure to state a claim. Id. at 56. We determined that the plain language of section 215(a)(3) -- to " file any complaint" -- " 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. at 55. Because plaintiffs premised their claim on " simply oral complaints to a supervisor," they had not stated a claim for retaliation under section 215(a)(3). Id. at 55-56.
The Lambert court's conclusion -- that an employee pursuing a claim for unlawful retaliation must do more than voice an equal pay complaint to a supervisor to invoke section 215(a)(3)'s protections -- is contrary to the weight of authority in our sister circuits, even more so now than when Lambert was decided. Indeed, the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have all held that section 215(a)(3) protects employees from retaliation for their complaints made to employers, and the Sixth Circuit has assumed, without significant discussion, that complaints to an employer are covered by section 215(a)(3). The
EEOC has long maintained the position that the Act protects employees who make such intra-company complaints.
B. The Supreme Court's Holding in Kasten
Nearly two decades after Lambert was decided, after these developments in other circuits and application of Lambert within our own, the Supreme Court granted certiorari in Kasten to resolve a " conflict among the Circuits as to whether an oral complaint is protected" by section 215(a)(3). 131 S.Ct. at 1330. The question there arose from an employee's oral complaints to his shift supervisor and to other employees 1 that their employer was violating FLSA by failing to compensate them for time spent donning and doffing their work-related protective gear. Id. at 1329-30. The Seventh Circuit had affirmed summary judgment for the employer, ruling that FLSA does not protect oral complaints. Id. at 1330.
Deciding that the statutory phrase " filed any complaint," read in isolation, is " open to competing interpretations," id. at 1330-31, the Supreme Court looked to FLSA's basic objectives for interpretive guidance. It also examined the range of meanings that the words " filed" and " complaint" and the phrase " filed any complaint" could bear and gave " a degree of weight" to the views of the agencies charged with enforcing FLSA -- the Department of Labor and the EEOC, which argued for a broad reading of the section, one protective of employees. Id. at 1335.
The Court concluded that " only one interpretation is permissible" : an oral complaint is protected by FLSA's anti-retaliation provision if 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." Id. at 1331, 1335. Despite framing the inquiry by reference to what a " reasonable employer " would understand, id. at 1335 (emphasis added), the Court nevertheless expressly declined to address the logically prior question whether FLSA applies, in the first instance, ...