Mello v. Siena College
Filing
33
DECISION AND ORDER denying # 11 Defendant's Motion for Partial Summary Judgment. Signed by Chief Judge Glenn T. Suddaby on 3/23/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JEFFREY A. MELLO,
Plaintiff,
1:15-CV-0013
(GTS/ATB)
v.
SIENA COLLEGE,
Defendant.
________________________________________
APPEARANCES:
OF COUNSEL:
GLEASON, DUNN, WALSH & O’SHEA
Counsel for Plaintiff
40 Beaver Street
Albany, New York 12207
LISA F. JOSLIN, ESQ.
TOBIN & DEMPF, LLP
Counsel for Defendant
33 Elk Street
Albany, New York 12207
MICHAEL L. COSTELLO, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed by Jeffrey
Mello (“Plaintiff”) against Siena College (“Defendant”), is Defendant’s motion for partial
summary judgment pursuant to Fed. R. Civ. P. 56 seeking to dismiss Plaintiff’s retaliation claim
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3), as modified by the Equal
Pay Act (“EPA”) of 1963, 29 U.S.C. § 206(d) et seq. (Dkt. No. 11.) For the reasons set forth
below, Defendant’s motion is denied.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Amended Complaint
Plaintiff’s Amended Complaint asserts the following five claims: (1) a claim that
Defendant retaliated against Plaintiff for reporting and complaining of unlawful employment
practices, in violation of N.Y. Exec. Law (“NYSHRL”) § 296(1)(e); (2) a claim that Defendant
breached Plaintiff’s employment contract when it reduced his salary after he was removed from
his position as Dean of the School of Business; (3) a claim that Defendant retaliated against
Plaintiff by removing him from his position as Dean of the School of Business and reducing his
salary after he complained of unlawful employment practices, in violation of Title VII, 42 U.S.C.
§ 2000e-3(a); (4) a claim that Defendant violated the FLSA when it retaliated against Plaintiff by
removing him from his position as Dean of the School of Business and reducing his salary after
he complained of unlawful employment practices;1 and (5) a claim that Plaintiff is entitled to an
award of attorneys’ fees and expenses pursuant to 42 U.S.C. § 1988(b) and 29 U.S.C. § 216(b).
(Dkt. No. 3, ¶¶ 50-69 [Pl.’s Am. Compl.].) Familiarity with the factual allegations supporting
these claims in Plaintiff’s Amended Complaint is assumed in this Decision and Order, which is
intended primarily for the review of the parties.
1
The Court notes that, in its memorandum of law, Defendant refers to this particular claim
as arising under the EPA. (Dkt. No. 11, Attach. 3, at 3-8.) However, a careful reading of Plaintiff’s
Amended Complaint reveals that he is asserting a retaliation claim under “29 U.S.C. § 215(a)(3),” which
is the FLSA. (Dkt. No. 3, ¶¶ 65-68.) Indeed, Plaintiff’s opposition memorandum of law emphasizes that
“nowhere in plaintiff’s Amended Complaint does he purport to raise a ‘wage disparity’ claim pursuant to
[the EPA,] 29 U.S.C. § 206(d)(1). Rather, . . . plaintiff’s claim is brought pursuant to the anti-retaliation
provision of the FLSA and the EPA, codified at 29 U.S.C. § 215(a)(3).” (Dkt. No. 17, Attach. 3, at 11.)
As the Second Circuit has explained, the “EPA was passed in 1963 as an amendment to the [FLSA] . . . .
As part of the FLSA, the EPA utilizes the FLSA’s enforcement mechanisms and employs its definitional
provisions.” Anderson v. State Univ. of N.Y., 169 F.3d 117, 119-120 (2d Cir. 1999) vac. on other grounds,
528 U.S. 1111 (2000). As a result, for the sake of simplicity and precision, the Court will, in this
Decision and Order, refer to this particular claim as a retaliation claim under the FLSA rather than one
under the EPA.
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B.
Statement of Undisputed Material Facts
Based on Defendant’s Statement of Material Facts and Plaintiff’s response thereto, the
undisputed material facts are as follows. (Compare Dkt. No. 11, Attach. 2 [Def.’s Rule 7.1
Statement] with Dkt. No. 17, Attach. 4 [Pl.’s Rule 7.1 Response].) On July 1, 2010, Plaintiff
began his employment with Siena College as Dean of the School of Business and as a tenured
faculty member in the Department of Marketing and Management. (Dkt. No. 11, Attach. 2, ¶ 1
[Def.’s Rule 7.1 Statement].) Plaintiff continued his employment in these positions for more
than three years, until he was notified that his position as Dean of the School of Business would
be discontinued as of August 2, 2013. (Id., ¶ 2.) Plaintiff was further notified that, beginning on
August 2, 2013, he would be returned to his faculty position and his salary would be reduced by
$55,000 to a total amount of $105,000 for the following academic year. (Id., ¶ 3.)
On March 17, 2014, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) alleging violations under Title VII. (Id., ¶ 4.) On April 4,
2014, Plaintiff filed an Amended Charge of Discrimination with the EEOC including a claim of a
violation under the FLSA. (Id., ¶ 5.) On April 9, 2014, Plaintiff commenced an action in New
York State Supreme Court, County of Albany, alleging breach of contract and that he was
retaliated against for reporting and complaining of unlawful employment practices, in violation
of NYSHRL § 296(1)(e). (Id., ¶ 6.) Thereafter, Plaintiff received a Notice of Right to Sue letter
from the EEOC and, on January 2, 2015, his action was removed to the United States District
Court for the Northern District of New York. (Id., ¶ 9.) Plaintiff continues to be employed in
his full-time tenured faculty position with full benefits at Siena College. (Id., ¶ 10.)
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C.
Parties’ Briefing on Defendant’s Motion for Partial Summary Judgment
1.
Defendant’s Memorandum of Law
Generally, Defendant asserts the following two arguments in its memorandum of law.
(Dkt. No. 11, Attach. 3 [Def.’s Mem. of Law].) First, Defendant argues that Plaintiff has not
alleged that he was engaging in a protected activity under the FLSA when he raised concerns to
administrators at Siena College regarding gender inequity in the salaries paid to professors. (Id.
at 5.) In support of this argument, Defendant cites Lambert v. Genesee Hosp., 10 F.3d 46 (2d
Cir. 1993), for the point of law that the FLSA anti-retaliation provision prohibits retaliation only
after an employee has complained of a violation to a governmental authority. (Id. at 3-4.) As an
initial matter, Defendant argues that complaining to Siena College’s administrators (rather than a
governmental authority) constitutes an intra-company complaint that is not considered a
protected activity under Lambert. (Id. at 5.) Furthermore, Defendant argues that, although
Plaintiff’s Amended Complaint alleges that he filed a complaint with the EEOC, he did not do so
until after he was allegedly retaliated against. (Id.)
Second, Defendant argues that Plaintiff lacks standing to bring his FLSA claim because
he was not actually aggrieved by the alleged wage disparity among certain faculty members. (Id.
at 6.) More specifically, Defendant argues that, because the FLSA is silent on the issue of
standing, the Court must use the standing provision contained in Title VII. (Id.) Defendant
further argues that, under Title VII (specifically, 42 U.S.C. § 2000e-5), a wage discrimination
claim must be filed by or on behalf of someone claiming to be aggrieved. (Id. at 6-8.)
Therefore, Defendant argues that, because Plaintiff’s Amended Complaint alleges that he
complained about female professors being paid less than male professors for the same work, and
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that he was a member of the higher-paid class (i.e., male professors), he has not been aggrieved.2
(Id. at 8.)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, Plaintiff’s opposition memorandum of law asserts two arguments. (Dkt. No.
17, Attach. 3 [Pl.’s Opp’n Mem. of Law].) First, with respect to whether he engaged in protected
activity under the FLSA, Plaintiff argues that Defendant’s heavy reliance on the Second Circuit’s
decision in Lambert is misplaced because the Second Circuit specifically overruled that decision
in Greathouse v. JHS Sec., Inc., 784 F.3d 105 (2d Cir. 2015). (Id. at 10-11.) More specifically,
Plaintiff argues that, in Greathouse, the Second Circuit held that “FLSA’s remedial goals
counsel in favor of construing the phrase ‘filed any complaint’ in section 215(a)(3) broadly, to
include intra-company complaints to employers as well as complaints to government agencies.”
Greathouse, 784 F.3d at 114. Based upon this ruling, Plaintiff argues that he engaged in
protected activity under the FLSA when he expressed his concern to College administrators
regarding gender wage inequity (which occurred before he was retaliated against). (Id. at 13.)
Second, Plaintiff argues that Defendant’s standing argument is also misplaced because he
has not asserted a wage disparity claim pursuant to 29 U.S.C. § 206(d)(1) of the EPA; rather, he
has asserted a retaliation claim pursuant to 29 U.S.C. § 215(a)(3) of the FLSA. (Id. at 14.)
Plaintiff argues that the elements required to establish a prima facie case of retaliation under the
2
The Court notes that this particular argument is based not merely on the unverified
Amended Complaint filed by Plaintiff in this Court on January 12, 2015 (Dkt. No. 3) but on the verified
Amended Complaint filed by Plaintiff in state court at some point before removal of that state court action
to this Court on January 2, 2015 (Dkt. No. 17, Attach. 3, at 8 [citing Dkt. No. 17, Attach. 1, at 58-70].)
Ordinarily, a verified pleading has the effect of an affidavit for purposes of a motion for summary
judgment. However, because the verified Amended Complaint proffered by Defendant was not signed by
either Plaintiff or his attorney, it has no such effect.
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FLSA are separate and distinct from those required to establish a wage disparity claim under the
FLSA. (Id. at 14-15.)
Furthermore, Plaintiff argues that, even if Title VII’s standing provision were applicable
to his FLSA retaliation claim, he would still have standing to pursue that claim. (Id. at 12.) In
support of this argument, Plaintiff cites Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011),
where the Supreme Court noted that Title VII’s anti-retaliation provision “is not limited to
discriminatory actions that effect the terms and conditions of employment. . . . Rather, Title
VII’s anti[-]retaliation provision prohibits any employer action that ‘well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Thompson, 562 U.S.
at 174 (quoting Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 68 [2006]). In addition,
Plaintiff argues that, because the Supreme Court adopted a broad interpretation of Title VII’s
anti-retaliation provision, courts should adopt a broad interpretation of FLSA’s anti-retaliation
provision, which is similarly broad. (Dkt. No. 17, Attach. 3, at 13 [Pl.’s Opp’n Mem. of Law].)
Finally, Plaintiff argues that his retaliation claim falls within the “zone of interests”
protected by the FLSA because, in lodging complaints with his supervisors, he sought to address
the same discriminatory conduct that the FLSA is meant to protect. (Id. at 14.)
3.
Defendant’s Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition memorandum of law, Defendant asserts two
arguments. (Dkt. No. 20 [Def.’s Reply Mem. of Law].) First, Defendant argues that the Second
Circuit’s decision in Greathouse (which was issued on April 20, 2015) should not have
retroactive effect over this case (which was filed on January 2, 2015) under the retroactiveapplication standard set forth by the Supreme Court in Chevron Oil v. Huson, 404 U.S. 97
(1971). (Id. at 2-5.)
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Second, Defendant reiterates its argument that Plaintiff is not an aggrieved party within
the meaning of the FLSA and, therefore, cannot claim to be aggrieved by the alleged retaliatory
conduct. (Id. at 5-6.) Defendant argues that there is a dearth, if not a complete absence, of case
precedent within the Second Circuit holding that employers violated 29 U.S.C. § 215(a)(3) by
retaliating against employees for complaining about conduct by which they were not personally
aggrieved. (Id. at 6.)
Furthermore, Defendant argues that Plaintiff’s reliance on Thompson is inapposite
because, in that case, the Supreme Court made no attempt to harmonize the standing
requirements of the FLSA’s anti-retaliation provision with the one contained in Title VII. (Id.)
Defendant argues that a finding that Plaintiff has standing to pursue his FLSA claim under the
circumstances of this case would significantly expand the scope of the FLSA anti-retaliation
provision and expose employers to claims that have a tenuous nexus between an employee
complaint and subsequent adverse action. (Id. at 7.)
II.
STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). As a result, “[c]onclusory allegations, conjecture and
speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir. 1998) (citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the Supreme
Court has famously explained, “[the non-moving party] must do more than simply show that
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there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). As for the materiality requirement, a dispute
of fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248. “Factual disputes that are irrelevant or unnecessary will not be
counted.” Id.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movign party. Anderson, 477 U.S. at
255. In addition, “[the moving party] bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the . . . [record] which it
believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett,
477 U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c), (e). However, when the moving
party has met this initial burden of establishing the absence of any genuine issue of material fact,
the nonmoving party must come forward with specific facts showing a genuine dispute of
material fact for trial. Fed. R. Civ. P. 56(c), (e).
III.
ANALYSIS
As an initial matter, the Court notes that, although Defendant has filed its motion as a
motion for summary judgment, it is appropriately analyzed under the legal standard governing a
motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) because it relies
entirely on the allegations contained in Plaintiff’s Amended Complaint as well as documents
attached to it, incorporated into it by reference, and/or integral to it. Indeed, additional record
evidence, such as deposition transcripts or affidavits, has not been submitted in support of
Defendant’s motion. Under these circumstances, “a trial judge may dismiss for failure to state a
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cause of action upon motion for summary judgment.” Schwartz v. Compagnise Gen.
Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (citations omitted); see also Funches v.
Fischer, 11-CV-0869, 2014 WL 1312048, at *6 n.5 (N.D.N.Y. Mar. 31, 2014) (Suddaby, J.)
(stating that, “[t]o the extent that a defendant’s motion for summary judgment under Fed. R. Civ.
P. 56 is based entirely on the allegations of the plaintiff’s complaint, such a motion is
functionally the same as a motion to dismiss for failure to state a claim under Fed. R. Civ. P.
12[b][6]”) aff’d, 588 F. App’x 50 (2d Cir. 19, 2014); accord, Dabney v. Pegano, 10-CV-1109,
2013 WL 5464776, at *5 (N.D.N.Y. Sept. 30, 2013) (Suddaby, J.) aff’d, 604 F. App’x 1 (2d Cir.
Feb. 17, 2015). In such a circumstance, the Court need not give prior notice to the party whose
pleading is being analyzed. See Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (stating
that “[t]his Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule
12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties”).
For the sake of brevity, the Court will not recite, in this Decision and Order, the wellknown legal standard governing a motion to dismiss for failure to state a claim under Fed. R.
Civ. P. 12(b)(6), but will respectfully refer the reader to the Court’s Decision and Order in
Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289, 297-300 (N.D.N.Y. 2013) (Suddaby, J.).
A.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that He Engaged
in Protected Activity Under the FLSA When He Allegedly Made an IntraCompany Complaint to the College Administrators Regarding Wage
Disparity
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 17, Attach. 3, at
7-11 [Pl.’s Opp’n Mem. of Law].) To those reasons, the Court adds the following two points.
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First, the Court notes that Defendant’s argument regarding the retroactive effect of
Greathouse has been considered by other courts in this Circuit, which have found that “the
standard in Greathouse applies regardless of the prevailing interpretation of law at the time of
the underlying incident.” Thompson v. Jennings & Hartwell Fuel Oil Corp., 14-CV-1857, 2015
WL 5437492, at *4 (E.D.N.Y. Aug. 27, 2015); see also Dunn v. Sederakis, 602 F. App’x 33, 34
(2d Cir. 2015) (remanding dismissal of an anti-retaliation claim where the district court “applied
our circuit’s law then in effect; but its basis for dismissal may no longer be sound under
Greathouse”). Therefore, the Court declines to adopt Defendant’s argument that Lambert
precludes Plaintiff’s FLSA claim because he made a intra-company complaint rather than one to
a government agency.
Second, the Court notes that, because Defendant did not base its motion on the so-called
“manager rule,” and because Plaintiff is proceeding neither pro se nor in forma pauperis in this
action, the Court cannot, and does not sua sponte consider the manager rule in this Decision and
Order. However, the discovery and dispositive motion deadlines have not yet expired in this
action. (See Text Order dated March 17, 2016 [extending discovery deadline to May 20, 2016,
and the dispositive motion deadline to July 18, 2016].) As a result, should Defendant choose to
file another dispositive motion, it is of course free to discuss the manager rule in that motion and
whether it applies to Plaintiff who, as a dean, made complaints on behalf of female professors
that may have been his subordinates. See Littlejohn v. City of New York, 795 F.3d 297, 317 n.16
(2d Cir. 2015) (noting that the manager rule provides that “complaints of discrimination within
the scope of a manager’s job duties are not protected activities, and that, in order to engage in
protected activity, the employee must ‘step outside his or her role of representing the company’
and take action adverse to the company”).
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B.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that He Has
Standing to Bring His FLSA Retaliation Claim
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 17, Attach. 3, at
11-14 [Pl.’s Opp’n Mem. of Law].) To those reasons, the Court adds the following point.
Contrary to Defendant’s assertions, courts within this Circuit have considered the
applicability of the FLSA anti-retaliation provision to employees who are retaliated against after
making complaints on behalf of others. For example, the United States District Court for the
District of Connecticut recently commented that, “[a]lthough Greathouse did not discuss
whether the FLSA anti-retaliation provision encompasses complaints–like [plaintiff’s]–that are
made on behalf of other employees only, the language in the statute prohibiting employers from
discharging ‘any employee because such employee has filed any complaint . . . under or related
to this chapter. . .’ 29 U.S.C. § 215(a)(3), is sufficiently broad to cover complaints about FLSA
violations against others.” Corpes v. Walsh Constr. Co., 14-CV-0181, 2015 WL 5331803, at *3
(D. Conn. Sept. 14, 2015).
Similarly, the Tenth Circuit has stated, albeit in dictum, that “[w]hile the FLSA contains
no similar ‘opposition’ clause [to that contained in Title VII], we assume, without deciding that
the language of § 215(a)(3) is sufficiently broad to encompass conduct taken on behalf of others .
. . . Section 215(a)(3) does not explicitly require that the employee’s protected conduct relate to
the assertion of his or her own statutory rights.” McKenzie v. Renberg’s Inc., 94 F.3d 1478,
1486-87 n.8 (10th Cir. 1996).
Based upon these persuasive authorities, and the Second Circuit’s statement that the
“remedial nature of the FLSA warrants an expansive interpretation of its provisions so that they
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will have the widest possible impact on the national economy[,]” Greathouse, 784 F.3d at 114
(internal quotation marks omitted), the Court finds that Plaintiff has alleged facts plausibly
suggesting that he has standing to pursue an FLSA retaliation claim.
ACCORDINGLY, it is
ORDERED that Defendant’s partial motion for summary judgment (Dkt. No. 11) is
DENIED.
Dated: March 23, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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