Marcotte v. City of Rochester

Filing 32

-CLERK TO FOLLOW UP- DECISION AND ORDER: Plaintiffs Motion to Amend the Complaint (Dkt #21) is granted. The Proposed Amended Complaint (Dkt #21-2) replaces the Complaint (Dkt #1) as the operative pleading in this matter, and the Clerk of the Court is requested to re-docket the Proposed Amended Complaint (Dkt #21-2) as the First Amended Complaint. Defendants Motion to Dismiss the Complaint for Failure to State a Claim (Dkt #14) and Amended Motion to Dismiss for Failure to State a Claim (Dkt #15) are granted. Accordingly, the First Amended Complaint is dismissed with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/1/2016. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PAMELA MARCOTTE,
Plaintiff,
DECISION and ORDER
No. 6:14-cv-6128(MAT)

-vsCITY OF ROCHESTER,
Defendant.

I.

Introduction
Represented

by

counsel,

Pamela

Marcotte

(“Plaintiff”)

instituted this action against the City of Rochester (“Defendant”
or “the City”) alleging causes of action for retaliation under
Title VII of the Civil Rights Act of 1964 (“Title VII”) and the
Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently
before

the

Court

is

Defendant’s

Motion

for

Judgment

on

the

Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed herein, Defendant’s motion is
granted.
II. Background
The factual summary below is drawn from the allegations in the
Complaint

and

Proposed

Amended

Complaint,

and

the

documents

incorporated by reference in those pleadings.
Plaintiff was hired as a Junior Architect by the City in May
of 1998. In 2001, she was promoted to Managing Architect.

On March 7, 2012, Plaintiff sent an email to James McIntosh
(“McIntosh”), her supervisor, with courtesy copies to Paul Holahan
(“Holahan”),

Commissioner

of

the

Department

of

Environmental

Services (“DES”), and Tassie R. Demps (“Demps”), Director/BHRM,
that stated as follows:
Jim, Please be advised that I have a good faith belief
that I have been subject to discrimination on the basis
of sex. Please take prompt, remedial action with regard
to my good faith complaints.
Proposed Amended Complaint (“PAC”) (Dkt #21-2), ¶ 14.
In April of 2012, Plaintiff filed a discrimination complaint
with the Equal Employment Opportunity Commission (“EEOC”), listing
as respondents the City, McIntosh, and Holahan. The contents of
this complaint (“EEOC #1”) are unknown; a copy of it has never been
submitted to this Court in any of the three lawsuits filed by
Plaintiff against the City.1 Plaintiff states that “[t]he EEOC
issued a right to sue letter and [she] filed a complaint in Federal
District Court which was docketed as civil action l2-CV-6416.”

1

On August 3, 2012, Plaintiff instituted Marcotte v. City of Rochester, et
al., 6:12-cv-06416(CJS) (“Marcotte I”), which was assigned to District Judge
Charles J. Siragusa. In that action, Plaintiff alleged causes of action against
Holahan, McIntosh, and the City for discrimination (disparate treatment) and
retaliation under the First Amendment and 42 U.S.C. § 1983. Plaintiff also
asserted a cause of action for municipal liability against the City but did not
assert a Title VII claim. On February 4, 2013, Plaintiff filed a separate action
alleging a Title VII claim, see Marcotte v. City of Rochester, 6:13-cv-06055-MAT
(W.D.N.Y.) (“Marcotte II”). However, the complaint in Marcotte II was never
served on the City. On May 29, 2013, Judge Siragusa dismissed all of the causes
of action in Marcotte I with prejudice for failure to state a claim. Plaintiff
filed a Notice of Voluntary Dismissal in Marcotte II on the same day.

-2-

Plaintiff does not indicate the date that the EEOC issued a right
to sue letter with regard to EEOC #1.
On April 23, 2012, Mcintosh, Holahan, and the City Law
Department brought a disciplinary charge against Plaintiff pursuant
to New York Civil Service Law § 75 (“Section 75”), alleging
insubordination because she turned in something to her supervisor
regarding performance expectations three days late. A second set of
Section

75

charges

was

filed

on

May

3,

2012,

alleging

that

Plaintiff had been insubordinate, had lied to her supervisor, and
had falsified her time card when she left work 90 minutes early on
April 4, 2012, for a doctor’s appointment and to attend one of her
children’s

sporting

events.

Plaintiff

states

that

she

worked

90 minutes at home that evening, and filled out her time card as
having

worked

eight

hours

that

day.

When

McIntosh

informed

Plaintiff that she would have to use one of her accumulated
personal days or sick days to cover the 90-minute absence, she
complained to him about her status as an exempt employee under the
FLSA.
On July 25, 2012, Plaintiff was placed on paid suspension
pending the outcome of a hearing on the Section 75 disciplinary
charges. After the hearing, Plaintiff was found not guilty of the
April 23, 2012 charge and guilty of the May 3, 2012 charges,
although the City did not contest that she had performed 90 minutes
of work later in the day at her home. On December 18, 2012, as a

-3-

result of the guilty finding, Plaintiff was demoted eight pay
grades, which constituted a $27,239.00 loss in salary per year.
Plaintiff alleges both before and after her demotion, the
other Managing Architects in the City’s DES, all of whom have been
male, have been free to arrive late and leave early without
reporting to McIntosh.
On July 31, 2013, Plaintiff filed a charge with the EEOC
(“EEOC #2”) naming the City as the respondent. Plaintiff alleged
retaliation under Title VII “for having filed a previous EEOC
charge on or about April 11, 2012, and a federal lawsuit based on
sex discrimination on July 12, 2012.”

EEOC #2, p. 1 (Dkt #27-1).

Plaintiff was issued a Right to Sue Notice from the EEOC on
December 13, 2013 (Dkt #30-1).
On March 14, 2014, Plaintiff, represented by her former
counsel Matthew Fusco, Esq., commenced this action (“Marcotte III”)
against the City. The Complaint (Dkt #1) alleges retaliation claims
under Title VII and the FLSA. The Title VII claim asserts that the
Section 75 disciplinary charges in April and May of 2012, and the
resulting demotion in December 2012, were issued in retaliation for
the filing of EEOC #1 and Marcotte I. The FLSA claim asserts that
Plaintiff was disciplined in retaliation for having complained
about her status as an exempt employee after she was informed that
she would have to use accrued leave time to cover a 90-minute
absence from work.

-4-

On September 25, 2015, Defendant filed its Rule 12(c) Motion
(Dkt #14), which it docketed as a Motion to Dismiss for Failure to
State a Claim. Defendant argued that Plaintiff’s lawsuit is barred
by the doctrine of res judicata and that her Complaint fails to
state any plausible claims for relief. On September 28, 2015,
Defendant filed a pleading docketed as an Amended Motion to Dismiss
for Failure to State a Claim (Dkt #15). However, the exhibits and
the supporting memoranda of law submitted in support of both
motions

appear

to

be

the

same,

and

both

are

brought

under

Rule 12(c) rather than Rule 12(b)(6).
On October 8, 2015, Karen Sanders, Esq. (“Sanders”) was
substituted as Plaintiff’s attorney. Plaintiff filed a Memorandum
of Law in Opposition to Defendant’s Rule 12(c) Motion (Dkt #21-3)
as well as a Motion to Amend the Complaint (Dkt #21).
On January 13, 2016, Defendant filed a Memorandum of Law in
Opposition to Plaintiff’s Motion to Amend and in Further Support of
Defendant’s Motion (Dkt #24, amending Dkt #23). Defendant asserts
that amendment is futile because the Title VII claim in the
Proposed Amended

Complaint

is

barred

by

the

doctrine

of

res

judicata. Defendant also argues that Plaintiff has failed to meet
pre-conditions of suit for Title VII claim, and that the FLSA claim
fails on the merits.
On January 27, 2016, Plaintiff filed a Reply (Dkt #26). On
February

4,

2016,

Plaintiff’s

attorney

-5-

filed

a

Declaration

(“Sanders Dec.”) (Dkt #27) in further support of the Motion to
Amend. Sanders noted that she received what was purportedly the
complete file of Plaintiff’s former attorneys in November of 2015.
However, that was not the case. On February 3, 2016, Plaintiff
provided Sanders some additional documents she had found at home,
including a copy of EEOC #2 (Dkt #27-1). Although Sanders was
unable to find the notice of right to sue associated with the
second charge, she found a reference in an unspecified “different
document that a letter dated December 13, 2013[,] was received, and
that letter indicated that there was ninety days to bring suit.”
Sanders Dec., ¶ 13. Sanders noted while she did not yet have a copy
of the right to sue notice, “it seems clear there was such a
notice, dated December 13, 2013.” Id., ¶ 17. Therefore, Sanders
concluded, the “jurisdictional prerequisites” for the Title VII had
been met. Id., ¶ 16.
With the Court’s permission, Defendant filed a Sur-Reply
(Dkt #29) and submitted the Declaration of Patrick Beath, Esq.
(“Beath Dec.”) (Dkt #30), attaching a copy of the December 13, 2013
Right to Sue letter (Dkt #30-1) issued with regard to EEOC #2.
Defendant argue that EEOC #2 and the December 13, 2013 right to sue
letter do not render the Title VII claim timely because they do not
relate to the events forming the basis of the current Title VII
retaliation claim.
The motions are now fully submitted and ready for decision.

-6-

III. The Motion to Amend
“Leave to file an amended complaint ‘shall be freely given
when justice so requires,’ FED. R. CIV. P. 15(a), and should not be
denied unless there is evidence of undue delay, bad faith, undue
prejudice to the non-movant, or futility.’” Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)).
Plaintiff requests permission to “correct two erroneous dates”
in the Complaint with regard to the Section 75 disciplinary charges
and to “correct a number of typographical errors[.]” Pl’s Mem.
(Dkt #21-3) at 6. Defendant does not object to these requests.
Plaintiff also wishes to “add language that makes clear that”
Defendant

“was

aware

of

[P]laintiff’s

complaints

of

gender

discrimination by virtue of a March 7, 2012 email. . . .” Id.;
Proposed Amended Complaint (“PAC”) (Dkt #21-2),
argues

that

the

proposed

amendment

is

¶ 14.2 Defendant

futile

and

actually

establishes its defense of res judicata, since Plaintiff set forth
substantially

the

same

allegation

in

the

Marcotte

I

Amended

Complaint. See Marcotte I Proposed Amended Complaint (Dkt #11-2),
¶ 50.

2

The allegation at issue reads as follows:
“On March 7, 2012, [P]laintiff sent an email to James Mcintosh, her
supervisor, with courtesy copies to Paul Holahan, Commissioner of
the Department of Environmental Services, and Tassie R. Demps,
Director/BHRM, that stated: ‘Jim, Please be advised that I have a
good faith belief that I have been subject to discrimination on the
basis of sex. Please take prompt, remedial action with regard to my
good faith complaints.’”

-7-

Because the Court can dispose of Plaintiff’s Complaint, even
as amended, the Court will exercise its discretion to grant the
Motion to Amend. The operative pleading is now the Proposed Amended
Complaint (Dkt #21-2), which will be re-docketed in a separate
entry as the First Amended Complaint.
IV.

Rule 12(c) Standard
On a Rule 12(c) motion for judgment on the pleadings, the

court utilizes “the same . . . standard applicable to dismissals
pursuant to FED. R. CIV. P. 12(b)(6).” Morris v. Schroder Capital
Mgmt. Int’l, 445 F.3d 525, 529 (2d Cir. 2006). Thus, the court
“will accept all factual allegations in the complaint as true and
draw

all

reasonable

inferences

in

[the

non-movant]’s

favor.”

Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (citation
omitted). As with a Rule 12(b)(6) motion, to withstand challenge
under Rule 12(c), a plaintiff’s “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Under Rule 12(c), “the court considers ‘the complaint, the
answer, any written documents attached to them, and any matter of
which the court can take judicial notice for the factual background
of the case.’” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419,
427 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418,

-8-

419 (2d Cir. 2009) (per curiam)). A complaint is also “deemed to
include

.

.

.

documents

that,

although

not

incorporated

by

reference, are ‘integral’ to the complaint.” Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004) (quoting Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002)). A plaintiff’s failure to include
matters of which she, as the pleader, “had notice and which were
integral to [her] claim . . . may not serve as a means of
forestalling the district court’s decision on [a 12(c)] motion.”
Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 44 (2d Cir.
1991).
IV.

Res Judicata
Defendant has moved to dismiss the Title VII claim in this

case under the doctrine of res judicata because the factual issues
underlying it were previously addressed in Marcotte I.
“‘[A] judgment upon the merits in one suit is res judicata in
another where the parties and subject-matter are the same, not only
as respects matters actually presented to sustain or defeat the
right asserted, but also as respects any other available matter
which might have been presented to that end.’” Woods v. Dunlop Tire
Corp., 972 F.2d 36, 38 (2d Cir. 1992), cert. denied, 506 U.S. 1053
(1993) (quoting Grubb v. Public Utils. Comm’n of Ohio, 281 U.S.
470,

479

(1930);

citation

omitted;

alteration

in

original).

Judgments under Rule 12(b)(6) are “judgments on the merits” “with
res judicata effects. . . .” Teltronics Servs., Inc. v. LM Ericsson

-9-

Telecomm’n Inc., 642 F.2d 31, 34 (2d Cir.), cert. denied, 450 U.S.
978 (1981) (quotation omitted; ellipsis in original).
As noted above, the Amended Complaint in Marcotte I was
dismissed by Judge Siragusa pursuant to Rule 12(b)(6). Thus, its
dismissal constitutes a final judgment on the merits for purposes
of the res judicata doctrine. The parties in Marcotte I and this
suit

are

the

same.

Furthermore,

the

factual

predicates

for

Plaintiff’s Title VII retaliation claim in this case and her
Section 1983 disparate treatment claim in Marcotte I are the same.
In both actions, Plaintiff’s allegations focus on the City’s
issuance of the Section 75 disciplinary charges against her and her
demotion based on the hearing officer’s finding of guilty on
certain of the charges. As Defendant notes, in the Marcotte I
amended complaint, Plaintiff alleged facts concerning the purported
gender discrimination by McIntosh; her email to McIntosh asserting
that she had been subjected to discrimination and requesting that
he

take

prompt

remedial

action;

the

filing

of

EEOC

#1;

the

allegedly retaliatory Section 75 disciplinary charges on April 23,
2012, and May 3, 2012; and the discipline (demotion) imposed as the
result of the finding of guilty on certain of those charges.
See Marcotte I Amended Complaint, ¶¶ 21-51 (discrimination); 52-57
(disciplinary charges); 58-62 (demotion). Moreover, the Marcotte I
amended complaint repeatedly labels the disciplinary charges as
“retaliatory.” See id., ¶¶ 2, 20, 52, 61, 71, 85, 89. These events

-10-

were alleged in either the Complaint or Proposed Amended Complaint
in the instant action.
It is true that Plaintiff here is proceeding on a theory of
retaliation under Title VII rather than one of disparate treatment
under Section 1983, as she did in Marcotte I. However, “[e]ven
claims based upon different legal theories are barred provided they
arise from the same transaction or occurrence.” L-Tec Electronics
Corp. v. Cougar Electronic Org., Inc., 198 F.3d 85, 88 (2d Cir.
1999) (per curiam) (citing Woods, 972 F.2d at 38). The Second
Circuit has

explained

that “[i]t

is th[e]

identity

of facts

surrounding the occurrence which constitutes the cause of action,
not the legal theory upon which [the plaintiff] chose to frame her
complaint.” Woods, 972 F.2d at 39 (citing Berlitz Sch. of Languages
of Am., Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980)
(“[W]hatever legal theory is advanced, when the factual predicate
upon which claims are based are substantially identical, the claims
are deemed to be duplicative for purposes of res judicata.”); other
citations omitted).
Plaintiff argues that res judicata does not apply because she
has set forth a factual allegation that she

allegedly could not

have included in Marcotte I, since it took place after she filed
her motion

for

leave

to

amend

in

that

action.

Specifically,

Plaintiff alleges that “the current Managing Architect, a male, has
been permitted to come in late and leave early without reporting

-11-

his comings and goings to the City.” PAC (Dkt #21-2), ¶ 25. The
Second Circuit has recognized that “when the second action concerns
a

transaction

occurring

after

the

commencement

of

the

prior

litigation, claim preclusion generally does not come into play.”
Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)
(citation omitted; emphasis supplied). In Maharaj, the Second
Circuit agreed that res judicata should not have been applied “to
[the plaintiff’s later] causes [of action] because each of them
arose out of an event—the dissolution of InterQuant—that occurred
more than two and one half years after the filing of the complaint
in [the first action].” Id. (emphasis supplied). Unlike in Maharaj,
the

causes

of

action

in

this

case

and

Plaintiff’s

first

discrimination action, Marcotte I, arose out of the same events—the
email complaining of disparate treatment based on gender, the
filing of EEOC #1, the disciplinary charges, and the demotion. See
Woods, 972 F.2d at 39 (“Essentially the same underlying occurrence
was relevant to both the LMRA and Title VII claims. Both actions
centered

around

Dunlop’s

firing

of

Woods,

the

reasons

for

termination, and her employment history, physical limitations, and
qualifications.

.

.

.”)

(citations

omitted).

The

subsequent

disparate treatment of the male successor to Plaintiff’s position
as Managing Architect is not a new transaction giving rise to a new
claim, and Plaintiff is not pursuing a later arising cause of
action based on this event.

-12-

Plaintiff

alternatively

argues

that

there

are

“unusual

circumstances as to the conduct and competence” of her prior
counsel in Marcotte I, Christina Agola, who, during the same timeframe, was being publicly reprimanded by the Second Circuit for her
conduct

and

was

being

investigated

by

the

Fourth

Department

Grievance Committee. Although there were certain irregularities in
Agola’s litigation of Marcotte I, they have no bearing on the
appropriateness of applying res judicata here.
In Marcotte I, at the oral argument on the City’s motion to
dismiss, Judge Siragusa noted that it was unusual that Agola had
not included a Title VII claim in that lawsuit. Subsequently, Judge
Siragusa learned that Agola had filed Marcotte II, asserting a
Title VII claim; apparently, Agola’s co-counsel, Ryan Woodworth,
Esq.,

was

not

aware

of

the

filing

of

Marcotte

II.

These

irregularities have no effect on the Court’s res judicata analysis.
In Marcotte I, Judge Siragusa found that Plaintiff did not plead a
plausible disparate treatment claim under Section 1983 and, having
failed

to

plead

an

underlying

constitutional

violation,

her

municipal liability claim could not stand. If Agola had included a
Title VII disparate treatment claim in Marcotte I, it would have
been dismissed on the same basis. Either way, Plaintiff could not
avoid the preclusive effect of res judicata on her Title VII
retaliation claim, because this claim could have been raised and
litigated in Marcotte II. Moreover, Judge Siragusa noted that

-13-

Plaintiff

did

assert

a

First

Amendment

retaliation

claim

in

Marcotte I but withdrew it. Agola’s co-counsel, Ryan Woodsworth,
Esq., appeared on Plaintiff’s behalf at the oral argument on the
City’s

motion

dismiss

in

Marcotte

I,

and,

according

to

Judge Siragusa, he agreed multiple times that Plaintiff was not
presently asserting a retaliation claim. Plaintiff has levied no
complaints against Woodworth’s performance or competence.
The Second Circuit in Teltronics has noted that “[w]hile it is
true that res judicata is not to be mechanically applied, no case
has been cited

or

discovered where

relief

from

res

judicata

principles has been granted simply because the plaintiff was
represented by inexperienced counsel.” 642 F.2d at 36 (internal
citation omitted). The Court finds that the instant case does not
warrant an exception to res judicata. See id. (noting that “to
sanction this exception would be to encourage endless litigation”
and ignore the principle that in American “jurisprudence ‘each
party is deemed bound by the acts of [her] lawyer-agent and is
considered to have notice of all facts . . . .’” Id. (quoting Link
v. Wabash, 370 U.S. 626, 633-34 (1962) (citation omitted; ellipsis
in original).
IV.

Failure to Fulfill Title VII’s Preconditions to Suit
Defendant

also

urges

dismissal

of

Plaintiff’s

Title

VII

retaliation claim on the basis that it is untimely, if EEOC #1 and
the resultant right to sue letter are used to measure compliance

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with the limitations period. Alternatively, Defendant argues that
Plaintiff failed to exhaust her administrative remedies because
EEOC #2 charges different conduct that is not reasonably related to
the current Title VII retaliation claim. The Court need not address
these arguments in light of its ruling that res judicata bars the
Title VII claim of retaliatory treatment.
V.

Failure to State an FLSA Claim
Defendant argues that Plaintiff fails to state a claim for

retaliation under the FLSA because she admits she is an exempt
employee and thus outside the statute’s protections.
The purpose of the FLSA is to “protect all covered workers
from

substandard

wages

and

oppressive

working

hours,

‘labor

conditions [that are] detrimental to the maintenance of the minimum
standard of living necessary for the health, efficiency and general
well-being of workers.’” Barrentine v. Arkansas–Best Freight Sys.
Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a);
footnote omitted). The FLSA requires covered employers to pay
covered employees overtime wages, at the rate of time and a half,
for hours in excess of 40 hours worked in a single week. See 29
U.S.C. § 207. Exempt from the FLSA’s overtime requirements are
employees

who

are

“employed

in

a

bona

fide

executive,

administrative, or professional capacity . . . (as such terms are
defined and delimited from time to time by regulations of the
Secretary [of Labor]).” 29 U.S.C. § 213(a)(1). Given the remedial

-15-

nature of the FLSA, employee exemptions must be narrowly construed,
and the employer bears the burden of showing that a claimed
exemption applies. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611,
614 (2d Cir. 1991) (citation omitted).
The FLSA’s anti-retaliation provision makes it “unlawful for
any person . . . to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under
[FLSA].” 29 U.S.C. § 215(a)(3). A plaintiff alleging retaliation
under

the

FLSA

establishes

a

prima

facie

case

by

showing

(1) participation in protected activity known to the employer, such
as the filing of an FLSA lawsuit or complaint; (2) an employment
action disadvantaging the employee; and (3) a causal connection
between the protected activity and the adverse employment action.
Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir. 2010) (citation
omitted).
The Supreme Court has held that “[t]o fall within the scope of
the [FLSA’s] antiretaliation provision,” a complaint by an employee
“must be 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.” Kasten v. Saint-Gobain Performance Plastics Corp., 563
U.S.

1,

131

S.

Ct.

1325,

1335

(2011)

(emphasis

supplied),

abrogating Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993)

-16-

(holding that FLSA Section 215(a)(3) prohibits only “retaliation
for

filing

formal

testifying”).3

complaints,

instituting

a

proceeding,

or

Kasten confirmed that this standard can be met “by

oral complaints, as well as by written ones.” Kasten, 131 S. Ct. at
1335.
The substantive allegations in support of Plaintiff’s FLSA
retaliation claim are as follows:
When Marcotte was informed by Mcintosh that she would
have to use one of her accumulated personal days or sick
days [to cover a 90-minute absence from work] she
complained to him about her status of an exempt employee
under the Federal Fair Labor Standards Act.
Complaint
Plaintiff,

(Dkt

#1),

Defendant

¶

19

(emphasis

retaliated

supplied).

against

her

According

when

it

to

“issued

disciplinary notice[s] and imposed discipline upon [her]” after
“she filed a complaint that as an exempt employee, she had to use
sick time or personal time to cover the ninety minutes she left
work early when she is specified as an exempt employee by the
City.” Id., ¶ 30 (emphases supplied).
Defendant

argues

that,

applying

Kasten,

a

“reasonable

employer” would not have understood any complaint by Plaintiff as
an assertion of rights under the FLSA, because Plaintiff is an
exempt employee and not entitled to the statute’s protections.
Indeed, as Defendant points out, Plaintiff admits in her Complaint
3

In Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir. 2015), the Second
Circuit “overruled what was left of [its] holding in Lambert[,]” 784 F.3d at 117,
based on Kasten.

-17-

several times that she is an exempt employee. The Court agrees that
a reasonable employer would not have understood a complaint by an
employee who admits she is exempt from the protections of the FLSA
to be “an assertion of rights protected by the [FLSA] and a call
for their protection.” Kasten, at 131 S. Ct. at 1335.
Furthermore, Plaintiff misapprehends the scope of the FLSA’s
protections.

The

crux

of

her

complaint

to

McIntosh

was

that—according to Plaintiff–the FLSA unfairly required her, as an
exempt employee, to utilize her accrued leave time to cover an
unexcused absence from work. In neither her Complaint nor her
Proposed Amended Complaint, however, does Plaintiff identify which
section of the FLSA allegedly makes it unlawful for employers to
require exempt employees to utilize accrued leave time to cover
unexcused absences from work.
Defendant suggests that Plaintiff is relying not on the text
of the FLSA itself, but on a portion of the Code of Federal
Regulations setting forth the “salary basis test,” which is used to
determine whether an employee is “exempt” under the FLSA. See
29 C.F.R. § 541.602(a) (“Subject to the exceptions provided in
paragraph (b) of this section [which are not relevant here], an
exempt employee must receive the full salary for any week in which
the employee performs any work without regard to the number of days
or hours worked.”). Significantly, Plaintiff does not allege that
she was threatened with having her pay “docked” as the result of

-18-

the 90-minute unexcused absence from work; nor does Plaintiff
allege that she was subjected to any improper deductions from her
compensation or even that the City has a policy under which paydocking based on partial-day absences may occur.4 Thus, Plaintiff
has not alleged any basis to contradict her express admission that
she is an exempt, salaried employee, or to suggest that Defendant
acted in a manner unlawful under the FLSA. Rather, as Defendant
argues, Plaintiff appears “to extrapolate from this language a
right, as an exempt employee, not to have to use leave time when
absent from work.” Def’s Mem. (Dkt #15-2) at 9.
The

great

weight

of judicial

authority,

as

well

as

the

Department of Labor (“DOL”) opinion letters5 interpreting the
regulation, are contrary to Plaintiff’s position. That is, the
overwhelmingly held view is that charging a partial day absence to
an employee’s paid leave account does not defeat her exemption
status. See Caperci, 43 F. Supp.2d at 92-93 (“[D]oes charging a

4

The Second Circuit has held that salaried employee may become non-exempt
under the FLSA if the employer has a policy of docking the employee’s salary for
absences of less than a day. Martin v. Malcome Pirnie, Inc., 949 F.2d 611, 615
(2d Cir. 1991) (citations omitted); see also Donovan v. Carls Drug Co., Inc., 703
F.2d 650, 652 (2d Cir. 1983) (“Carls’ payroll data clearly show that pharmacists
were paid according to an hourly rate and that this hourly amount was the amount
deducted for each hour of work missed. A salaried professional employee may not
be docked pay for fractions of a day of work missed.”); footnote omitted).
5

DOL opinion letters are entitled to “considerable deference.” Caperci v.
Rite Aid Corp., 43 F. Supp.2d 92, 94 (D. Mass. 1999) (citing Auer v. Robbins, 519
U.S. 452, 461 (1997) (“Because the salary-basis test is a creature of the [DOL]’s
own regulations, his interpretation of it is, under our jurisprudence,
controlling unless plainly erroneous or inconsistent with the regulation.”);
other citation omitted).

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partial day absence to an employee’s paid leave account defeat the
professional capacity exemption? The answer, as found in the
language of the regulation, . . . DOL opinion letters interpreting
that regulation, and the great weight of precedent at both the
circuit and district court levels, is ‘no.’”) (citing Haywood v.
North Am. Van Lines, Inc., 121 F.3d 1066, 1070 (7th Cir. 1997);
Barner v. City of Novato, 17 F.3d 1256, 1261–62 (9th Cir. 1994);
York v. City of Wichita Falls, Tex., 944 F.2d 236, 242 (5th Cir.
1991) (deductions from “sick or vacation leave on an hourly basis
. . . do not establish that a person is paid on a wage basis”);
Vogel v. American Home Products Corp. Severance Pay Plan, 122 F.3d
1065, 1997 WL 577578, at *5 (4th Cir. 1997) (unpublished opn.);
Opinion Letter Fair Labor Standards Act (FLSA), 1993 WL 13652221,
at *1 (DOL WAGE-HOUR Apr. 9, 1993) (“Where an employer has bona
fide

vacation

and

sick

time

benefits,

it

is

permissible

to

substitute or reduce the accrued benefits for the time an employee
is absent from work, even if it is less than a full day, without
affecting the salary basis of payment, if by substituting or
reducing such benefits, the employee receives in payment an amount
equal to his or her guaranteed salary.”); other citations omitted);
see also Castro v. Metropolitan Transp. Auth., No. 04 CIV. 1445 LTS
THK, 2006 WL 1418585, at *4 (S.D.N.Y. May 23, 2006) (“Docking an
employee’s leave balance or other fringe benefits for partial day
absences does not change his exemption status as long as his salary

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is never docked.”) (citing 29 C.F.R. § 541.602(a) (referring to
“predetermined”

amount

of

pay);

other

citations

and

footnote

omitted).
According

to

Iqbal/Twombly,

the

the

Supreme

plausibility

Court’s
standard

pronouncements
used

in

judging

in
the

sufficiency of a complaint “asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(internal quotation marks omitted). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of
misconduct,

the

complaint

has

alleged—but

it

has

not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 1950
(quoting FED. R. CIV. P. 8(a)(2)). The facts pleaded in Plaintiff’s
Complaint

and

Proposed

Amended

Complaint

do

not

permit

the

inference of anything more than the merest possibility of wrongful
conduct under the FLSA. Thus, Plaintiff has failed to fulfill the
Iqbal/Twombly plausibility standard. See, e.g., Ritchie v. St.
Louis Jewish Light, 630 F.3d 713, 717 (8th Cir. 2011) (affirming
dismissal of complaint alleging retaliation under the FLSA where
“[t]he facts pleaded in [the plaintiff]’s complaint do not permit
[the

court]

to

infer

more

than

the

mere

possibility

of

misconduct”).
VI.

Conclusion
For the reasons discussed above, Plaintiff’s Motion to Amend

the Complaint (Dkt #21) is granted. The Proposed Amended Complaint

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(Dkt #21-2) hereby replaces the Complaint (Dkt #1) as the operative
pleading in this matter, and the Clerk of the Court is requested to
re-docket the Proposed Amended Complaint (Dkt #21-2) as the “First
Amended Complaint.” Defendant’s Motion to Dismiss the Complaint for
Failure to State a Claim (Dkt #14) and Amended Motion to Dismiss
for Failure to State a Claim (Dkt #15) are granted. Accordingly,
the First Amended Complaint is dismissed with prejudice. The Clerk
of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

March 1, 2016
Rochester, New York

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