Dunn v. Sederakis

143 F. Supp. 3d 102, 2015 U.S. Dist. LEXIS 148319, 2015 WL 6681134
CourtDistrict Court, S.D. New York
DecidedNovember 2, 2015
DocketNo. 11 Civ. 8210(PAE)
StatusPublished
Cited by21 cases

This text of 143 F. Supp. 3d 102 (Dunn v. Sederakis) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. Sederakis, 143 F. Supp. 3d 102, 2015 U.S. Dist. LEXIS 148319, 2015 WL 6681134 (S.D.N.Y. 2015).

Opinion

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This case is before the Court on remand. This Court had dismissed plaintiff Ayshea Dunn’s retaliation claim under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3), because, under Second Circuit precedent at the time, an oral complaint to a supervisor did not qualify as protected activity under the FLSA. Earlier this year, however, the Second Circuit reversed the earlier precedent in Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir.2015), and remanded this case for proceedings consistent with Greathouse. See Dunn v. Sederakis, 602 Fed.Appx. 33, 34-35 (2d Cir.2015).

Defendants John Sederakis and Sabrina Brown (collectively, “defendants”) again move to dismiss. For the reasons that follow, the Court grants that motion.

I. Background

A. Factual Allegations1

Between 1993 and April 21, 2009, Dunn was an employee of the City College of New York (“CCNY”), part of the City [106]*106University of New York (“CUNY”). TAC ¶ 7. Dunn earned about $44,000 per year as an administrative assistant. Id. ¶ 8. In 2007 and 2008, the time period at issue, Dunn’s immediate supervisor was Dr. Jane Gallagher, Sederakis was CCNY’s associate director of human resources, and Brown was director of human resources.2 Id. ¶¶ 4-5, 7.

Dunn alleges that, between April and September 2008, she “routinely worked overtime hours,” for which she was never compensated. Id. ¶ 9. She also claims that, in late September and October 2008, she was docked a total of nine days’ wages. Id. ¶ 10. Dunn alleges that, after she complained to CCNY personnel about the unpaid overtime and docked wages, defendants retaliated against her by taking adverse employment actions. See id. ¶¶ 9, 10, 22.

1. Dunn’s Complaints

As reviewed more fully below, between July 2008 and November 2008, Dunn made complaints on multiple occasions to different individuals. Id. ¶ 14.

During this same period, CCNY was resolving disciplinary charges against Dunn. Specifically, on July 8, 2008, Seder-akis notified Dunn by letter that disciplinary charges had been brought against her, alleging four days of absence without leave in June, 10 days of lateness in June, and failure to report six days of absence on her timesheets in April and May. See Klekman Deck, Ex. E. On September 12, 2008, CCNY issued its “Step One Decision,” signed by Brown, finding Dunn guilty of misconduct and docking her nine days’ pay. Id., Ex. G.3 The Step One Decision preceded most of Dunn’s complaints and the allegedly connected adverse employment actions, and the July 8 letter from Sederakis appears to have preceded all of them.

The following is a timeline of Dunn’s complaints as alleged in the TAC, presented in as chronological an order as can be reconstructed:

1. On July 14, 2008, Dunn filed a written complaint with the State Division of Human Rights (“SDHR”) alleging that she had been subjected to unlawful discrimination because of her disability conditions, namely, sarcoidosis and hydrocephalus. Klekman Deck, Ex. F, ¶ 1. Dunn ■ alleges that she also complained orally to the SDHR about the docking of her wages and the failure to pay overtime, but these complaints were not memorialized. TAC ¶ 21.
2. On August 18, 2008, Dunn complained in a letter to Sederakis that she had been “targeted” since returning from sick leave by Human Resources and by Gallagher. See Klekman Deck, Ex. H. She complained that she had been incorrectly penalized for taking unearned sick time and requested a recalculation of her “time and leave balance.” Id.
[107]*1073. On September 22, 2008, Dunn copied Brown and Sederakis, among others, on a letter to her union representative complaining that she “had been found guilty” of misconduct at work, expressing displeasure with her union representation in the disciplinary proceedings, and requesting to move “to the next step or phase.”4 Id., Ex. I.
4. On unspecified dates in August and September 2008, Dunn complained orally to Dean Paul F. Occhiogrosso, CCNY’s legal counsel, about “earned, unpaid compensation for overtime work hours, among other matters.” TAC ¶ 17.
5. On an unspecified date in September 2008, Dunn complained orally to CCNY’s Affirmative Action Director, Robert Rodriguez, about the unpaid overtime, the wages docked from her September paycheck, and an “unpaid retroactive pay increase.” Id. ¶ 18.
6. On or about September 25, 2008, ' Dunn complained orally to Gallagher about the unpaid overtime, the docked wages, the unpaid retroactive pay increase, and the fact that defendants were ignoring her letters. Id. 19.
7. On or about November 26, 2008, Dunn complained orally to Sederakis about the unpaid overtime,’ other “unpaid wages” (presumably the aforementioned docked wages), and the unpaid retroactive pay increase. Id. ¶ 20.

2.Alleged Adverse Employment Actions

Dunn alleges that, in retaliation for these complaints, defendants subjected her to the following adverse employment actions, mostly in late 2008.

1. On September 12, 2008, the disciplinary charges initiated against Dunn in July 2008 were found to be substantiated and she was docked wages for four days as a penalty and five days for absences not previously recorded. Klekman Deck, Ex. G; see also TAC ¶ 13.
2. Between November 2008 and early July 2009, Sederakis, with Brown’s approval, withheld leave credits that Dunn had earned. TAC ¶ 23.
3. Starting in November 2008, defendants refused to provide Dunn a retroactive pay increase “to which she was entitled pursuant to contract between CCNY and her union.” Id. ¶ 24.
4. On November 26, 2008, Sederakis “had security abruptly escort Dunn out of the office.” Id. ¶ 25.
5. In December 2008, Sederakis took steps to “have Dunn deemed persona non grata at the campus.” Id. ¶ 26.
6. In December 2008, defendants warned Dunn’s union representa-[108]*108fives not to intervene on her behalf. Id. ¶ 27.
7. On or about December 23, 2008, at a meeting between Dunn, defendants, and Dunn’s union representatives, “the attendees sought to improperly pressure [Dunn] into dropping her wage and overtime compensation claims.” Id. ¶ 28.
8. At an unspecified time, Dunn sought for CCNY’s “retaliation committee” to investigate her complaints and the defendants “influenced” members of the committee to ignore Dunn’s request. Id. ¶ 29.
9.

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143 F. Supp. 3d 102, 2015 U.S. Dist. LEXIS 148319, 2015 WL 6681134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-sederakis-nysd-2015.