Ayshea L. DUNN, Plaintiff-Appellant, v. John SEDERAKIS, Sabrina Brown, Defendants-Appellees, 602 F. App'x 33

SUMMARY ORDER Ayshea Dunn appeals from the judgment of the United States District Court for the Southern District of New York (Engelmayer, /.), dismissing pursuant to Federal Rule of Civil Procedure 12(b)

(6) Dunn’s retaliation claim under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Dunn’s Second Amended Complaint alleged that her supervisors retaliated against her for, among other protected activities, registering oral complaints with her supervisors in July and August 2008. The district court dismissed the retaliation claim, holding in part that the oral complaints to Dunn’s supervisors were not protected activity under

Section 15(a)(3) of the FLSA. On appeal, Dunn challenges that holding in light of recent changes in the law. We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6), “accepting] as true all allegations in the complaint and drawfing] all reasonable inferences in favor of the non-moving party.” Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007). The district court’s ruling that oral complaints to supervisors are not protected activity under the FLSA relied on our decision in Lambert v.

Genesee Hospital, 10 F.3d 46 (2d Cir.1993), which held that the FLSA “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. In the intervening time since the district court entered judgment in this case, we have overruled Lambert. See Greathouse v. JHS Sec. Inc., No. 12-4521-cv, 784 F.3d 105, 107, 2015 WL 1781036, at *2 (2d Cir. Apr. 20, 2015). Greathouse holds: [A]n employee may premise a

section 215(a)(3) retaliation action on an oral complaint made to an employer, so long as — pursuant to [Kasten v. Saint-Go-bain Performance Plastics Corp., — U.S. --, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011)] — 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. Id. The district court thus applied our circuit’s law then in effect; but its basis for dismissal may no longer be sound under Greathouse.

We therefore vacate the dismissal of Dunn’s FLSA retaliation claim. On remand, the district court should consider whether Dunn’s claim describes an oral complaint that survives Greathouse and Hasten’s standard of clarity and detail. For the foregoing reasons, and finding no merit in Dunn’s other arguments, we hereby VACATE and REMAND the judgment of the district court for further proceedings consistent with Greathouse. . 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.