Kevin Kasten v. Saint-Gobain Performance Plast ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2820
K EVIN K ASTEN,
Plaintiff-Appellant,
v.
S AINT-G OBAIN P ERFORMANCE
P LASTICS C ORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-C-0686—Barbara B. Crabb, Chief Judge.
A RGUED A PRIL 2, 2009—D ECIDED JUNE 29, 2009
Before B AUER and F LAUM, Circuit Judges, and K APALA,
District Judge.Œ
F LAUM, Circuit Judge. Plaintiff Kevin Kasten appeals
the district court’s grant of summary judgment to defen-
dant Saint-Gobain Performance Plastics Corporation
(“Saint-Gobain”). Kasten claims that the district court
Œ
Of the Northern District of Illinois, sitting by designation.
2 No. 08-2820
erred in its interpretation of the Fair Labor Standards Act
when it determined that Kasten had not suffered retalia-
tion within the meaning of the statute. For the reasons
explained below, we affirm the judgment of the
district court.
I. Background
Defendant Saint-Gobain is a corporation that manufac-
tures a variety of high-performance materials at facilities
throughout the country. Plaintiff Kevin Kasten worked
in Saint-Gobain’s Portage, Wisconsin facility from
October 2003 to December 2006.
In order to receive their weekly paychecks, Saint-Gobain
hourly employees must use a time card to swipe in and
out of an on-sight Kronos time clock. On February 13,
2006, Kasten received a “Disciplinary Action Warning
Notice - Verbal Counseling Warning” from Saint-Gobain
because of several “issues” Kasten had with regard to
punching in and out on the Kronos time clocks. The
notice stated that “[i]f the same or any other violation
occurs in the subsequent 12-month period from this date
of verbal reminder, a written warning may be issued.”
Kasten signed the notice, acknowledging that he read
and understood it.
On August 31, 2006, Kasten received a written warning
from defendant, again related to swiping in and out
on the Kronos clocks. The notice stated that “[i]f
the same or any other violation occurs in the subse-
quent 12-month period from this date [sic] will result in
No. 08-2820 3
further disciplinary action up to and including termina-
tion.” Kasten signed the written warning, again acknowl-
edging that he read and understood it.
On November 10, 2006, plaintiff received yet another
written warning from Saint-Gobain for failure to swipe
in and out, this time accompanied by a one day disciplin-
ary suspension. The warning stated that “[t]his is the
last step of the discipline process” and that if another
violation occurred, further discipline, including termina-
tion, could result. Kasten signed the warning, again
acknowledging that he read and understood it.
Plaintiff alleges (though defendant disputes) that from
October through December, 2006, he verbally complained
to his supervisors about the legality of the location of Saint-
Gobain’s time clocks. Specifically, Kasten claims that he
told his supervisors that the location of the Kronos
clocks prevented employees from being paid for time
spent donning and doffing their required protective
gear. Regarding his complaints, plaintiff alleges (1) that he
told Dennis Woolverton (his shift supervisor) that he
believed the location of defendant’s time clocks was
illegal; (2) that he told Lani Williams (a Human
Resources generalist) that the location of the time clocks
was illegal; (3) that he told April Luther (a “Lead Opera-
tor” and apparently another of Kasten’s supervisors) that
the location of the time clocks was illegal; and (4) that
he told Luther that he was thinking of commencing a
lawsuit regarding the location of defendant’s time clocks.
Saint-Gobain denies that Kasten ever told any of his
supervisors or any human resources personnel that he
believed that the clock locations were illegal.
4 No. 08-2820
On December 6, 2006, Saint-Gobain suspended Kasten
on the ground that he had violated its policy regarding
time clock punching for the fourth time. Kasten claims
that at a meeting regarding this suspension, he again
verbally told his supervisors that he believed the loca-
tion of the clocks was illegal and that if he challenged the
company in court regarding the location of the clocks the
company would lose. Saint-Grobain disputes that Kasten
complained about the time clocks at this meeting. On
December 11, 2006, Human Resources Manager Dennis
Brown told Kasten over the phone that Saint-Gobain
had decided to terminate his employment.
Kasten filed suit under the FLSA, claiming that he had
been terminated in retaliation for his verbal complaints
regarding the location of the time clocks. The district court
granted summary judgment to defendant, finding that
Kasten had not engaged in protected activity because
he had not “filed any complaint” about the allegedly
illegal location of the time clocks. Kasten appeals.
II. Discussion
The FLSA provides private remedies for employees
who have suffered adverse employment actions as a
result of engaging in certain protected activities. Section
215(a)(3) of the statute defines the scope of protected
activity. It states, in relevant part:
[I]t shall be unlawful for any person . . . to discharge
or in any other manner discriminate against any
employee because such employee has filed any com-
No. 08-2820 5
plaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has
testified or is about to testify in any such proceeding,
or has served or is about to serve on an industry
committee.
29 U.S.C. § 215(a)(3).
Here, Kasten seeks to establish a claim for retaliation
based solely on his allegation that he “filed complaints”
with his employers regarding the location of the time
clocks. To determine whether Kasten engaged in pro-
tected activity, we must answer two questions about the
scope of the FLSA’s retaliation provision: first, whether
intra-company complaints that are not formally filed
with any judicial or administrative body are protected
activity; and second, whether unwritten verbal com-
plaints are protected activity.
The district court found that intra-company complaints
were protected activity but concluded that unwritten
verbal complaints were not protected activity. Kasten
argues, along with a supporting amicus brief filed by
the U.S. Secretary of Labor, that we should reverse
the second portion of the district court’s ruling holding
that unwritten complaints are not protected activity
under the statute. They claim that the FLSA retaliation
provision should be read expansively to protect em-
ployees who make only internal, unwritten objections
to their employers.
We review the district court’s grant of summary judg-
ment to defendant de novo and view the evidence in
the light most favorable to the appellant. Hancock v.
Potter, 531 F.3d 474, 478 (7th Cir. 2008).
6 No. 08-2820
A. Internal Complaints
The Seventh Circuit has not directly addressed whether
internal complaints are protected activity under the
FLSA’s retaliation provision, though we have reviewed
two cases involving internal complaints without com-
menting on the matter. See Scott v. Sunrise Health Care
Corp., 195 F.3d 938, 940-41 (7th Cir. 1999) (affirming
dismissal of FLSA retaliation case because plaintiff had
not shown a causal connection between her complaints
and her later discharge); see also Shea v. Galaxie Lumber
Constr. Co., 152 F.3d 729, 731, 734-36 (7th Cir. 1998) (revers-
ing a denial of punitive damages in a case where an
employee had been discharged after complaining to the
company president).1
Statutory interpretation begins with “the language of
the statute itself [and] [a]bsent a clearly expressed legisla-
tive intention to the contrary, that language must ordi-
narily be regarded as conclusive.” Sapperstein v. Hager, 188
F.3d 852, 857 (7th Cir. 1999) (internal quotation marks and
citation omitted) (interpreting retaliation provision of
FLSA but not discussing whether internal complaints
were protected conduct); see also Consumer Prod. Safety
Comm’n v. GTE Sylvania, 447 U.S. 102, 107 (1980). Here, the
plain language of the statute indicates that internal, intra-
company complaints are protected. The retaliation pro-
vision states that it is “unlawful for any person to dis-
charge . . . any employee because such employee has
1
It appears that the parties in those cases did not raise the
issues we are considering in this appeal.
No. 08-2820 7
filed any complaint . . . .” 29 U.S.C. § 215(a)(3) (emphasis
added). As Kasten points out, the statute does not limit
the types of complaints which will suffice, and in fact
modifies the word “complaint” with the word “any.”
Thus, the language of the statute would seem to include
internal, intra-company complaints as protected activity.
The majority of circuit courts considering the question
have also found that “any complaint” includes internal
complaints. See Hagan v. Echostar Satellite, LLC, 529 F.3d
617, 625 (5th Cir. 2008) (internal complaint constitutes
protected activity); Moore v. Freeman, 355 F.3d 558 (6th
Cir. 2004) (informal complaints are protected activity);
Lambert v. Ackerly, 180 F.3d 1004, 1004 (9th Cir. 1999)
(section 15(a)(3) protects “employees who complain
about violations to their employers”); Valerio v. Putnam
Associates, Inc., 173 F.3d 35, 41 (1st Cir. 1999) (“By failing
to specify that the filing of any complaint need be with
a court or an agency, and by using the word ‘any,’ Con-
gress left open the possibility that it intended ‘complaint’
to relate to less formal expressions of protest . . . conveyed
to an employer.”); EEOC v. White & Son Enterprises, 881
F.2d 1006, 1011 (11th Cir. 1989) (employees’ internal
complaints to supervisor about unequal pay were asser-
tions of rights under the Equal Pay Act, part of the
FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383,
387 (10th Cir. 1984) (same); but see Ball v. Memphis Bar-B-Q
Co., 228 F.3d 360, 363-365 (4th Cir. 2000) (holding that
29 U.S.C. § 215(a)(3) does not protect internal complaints).
Because we conclude, in line with the vast majority of
circuit courts to consider this issue, that the plain
8 No. 08-2820
language of 29 U.S.C. § 215(a)(3) includes internal com-
plaints as protected activity, we affirm the judgment of
the district court in this regard.
B. Unwritten Complaints
The next question pertinent to this appeal is whether
unwritten, purely verbal complaints are protected
activity under the statute.
Again, we start with the language of the statute.
Sapperstein, 188 F.3d at 857. The FLSA’s retaliation pro-
vision prohibits “discharg[ing] . . . any employee because
such employee has filed any complaint . . . .” 29 U.S.C.
§ 215(a)(3) (emphasis added). The district court reasoned:
Expressing an oral complaint is not the same as filing
a complaint. By definition, the word “file” refers to
“a collection of papers, records, etc., arranged in a con-
venient order,” Random House Webster’s College
Dictionary 489 (2d ed. 1999), or, when used in verb
form as it is in the statute, “[t]o deliver (a paper or
instrument) to the proper officer so that it is
received by him to kept on file, or among the records
of his office,” Webster’s New International Dictionary
of the English Language 945 (2d ed. 1958). One
cannot “file” an oral complaint; there is no document,
such as a paper or record, to deliver to someone
who can put it in its proper place.
Plaintiff disagrees with this interpretation. He argues
that “to file” is a broad term that has several meanings,
including, generally, “to submit.”
No. 08-2820 9
Looking only at the language of the statute, we believe
that the district court correctly concluded that unwritten,
purely verbal complaints are not protected activity. The
use of the verb “to file” connotes the use of a writing.
Webster’s Ninth New Collegiate Dictionary defines the
verb “to file” as
1. to arrange in order for preservation and reference
<“file letters”> 2. a: to place among official records as
prescribed by law <“file a mortgage”> b: to perform
the first act of (as a lawsuit) <“threatened to file
charges against him”>
This definition accords with what we believe to be the
common understanding of the verb “to file.” Although
Kasten and the Secretary of Labor claim that “to file” can
mean, generally, “to submit,” this seems to us overbroad.2
If an individual told a friend that she “filed a complaint
2
The Secretary of Labor claims that because “it is not clear from
the phrase ‘file any complaint’ that a complaint must be in
writing, the Secretary’s reasonable interpretation that both oral
and written complaints are protected is entitled to Skidmore
deference.” However, the Secretary’s interpretation of “filed
any complaint” appears to rest solely on a litigating position
rather than on a Department of Labor regulation, ruling, or
administrative practice, and is therefore not entitled to defer-
ence. See Smiley v. Citibank, 517 U.S. 735, 741 (1996) (“[W]e
deny deference ‘to agency litigating positions that are wholly
unsupported by regulations, rulings, or administrative prac-
tice.’ The deliberateness of such positions, if not indeed
their authoritativeness, is suspect.”) (citing Bowen v. George-
town Univ. Hospital, 488 U.S. 204, 212 (1988)).
10 No. 08-2820
with her employer,” we doubt the friend would under-
stand her to possibly mean that she merely voiced dis-
pleasure to a supervisor. Rather, the natural under-
standing of the phrase “file any complaint” requires the
submission of some writing to an employer, court, or
administrative body. See United States v. Bank of
Farmington, 166 F.3d 853, 860 (7th Cir. 1999) (“Words in
a statute are to be given their plain and ordinary mean-
ing.”) (citing United States v. James, 478 U.S. 597, 604 (1986)).
Other circuit courts that have tackled this issue are
split. The Fourth Circuit found that verbal complaints
were not protected activity in Ball v. Memphis Bar-B-Q Co.,
Inc., 228 F.3d 360, 364 (4th Cir. 2000). The court recognized
that the FLSA’s “statutory language clearly places limits
on the range of retaliation proscribed by the act.” Specifi-
cally, in interpreting the “testimony” clause of the
FLSA’s retaliation provision, the Fourth Circuit held that
the FLSA “prohibits retaliation for testimony given or
about to be given but not for an employee’s voicing of a
position on working conditions in opposition to an em-
ployer.” Id. (emphasis added). Although the Fourth
Circuit acknowledged that the retaliation in that case—
which followed an employee’s statement to the company
president that, if he were deposed in a lawsuit, he
would not testify to the president’s suggested version of
events—was “morally unacceptable,” the court concluded
that a faithful interpretation of the statute did not recog-
nize mere statements to a supervisor as a protected activ-
ity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55
(2d Cir. 1993) (“The plain language of this provision
limits the cause of action to retaliation for filing formal
No. 08-2820 11
complaints, instituting a proceeding, or testifying, but does
not encompass complaints made to a supervisor.”) (cita-
tions omitted).
Other courts have found oral complaints to be pro-
tected activity, but it is difficult to draw guidance from
these decisions because many of them do not specifically
state whether the complaint in question was written or
purely verbal, and none discusses the statute’s use of
the verb “to file” and whether it requires a writing. See
EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90
(6th Cir. 1992) (holding, without discussion of the ver-
bal/written distinction, that plaintiff’s apparently oral
complaints to supervisors were protected activity);
EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th
Cir. 1989) (holding, without discussion of the verbal/
written distinction, that plaintiffs’ oral complaints
were protected activity); Brock v. Richardson, 812 F.2d 121,
125 (8th Cir. 1987) (holding, without discussion of the
verbal/written distinction, that defendant’s mistaken
belief that plaintiff had made apparently oral complaints
to supervisors was grounds for suit); Brennan v. Maxey’s
Yamaha, 513 F.2d 179, 183 (8th Cir. 1975) (holding, without
discussion of the verbal/written distinction, that em-
ployee’s “voicing” of concern was protected activity).3
3
The plaintiff and Secretary of Labor cite Lambert v. Ackerley,
180 F.3d 997 (9th Cir. 1999) and Love v. RE/MAX of America, Inc.,
738 F.2d 383 (10th Cir. 1984) to support their contention that
unwritten complaints are covered by the statute. However,
although Ackerley and Love contain favorable language for
(continued...)
12 No. 08-2820
Despite these contrary findings by some other circuits,
our interpretation of the phrase “file any complaint” is
confirmed by the fact that Congress could have, but did
not, use broader language in the FLSA’s retaliation provi-
sion. For example, analogous provisions in other
statutes, including Title VII and the Age Discrimination
in Employment Act, forbid employers from retaliating
against any employee who “has opposed any practice”
that is unlawful under the statutes. See 42 U.S.C. § 2000e-
3(a); 29 U.S.C. § 623(d). This broader phrase, “opposed
any practice,” does not require a “fil[ing],” and has been
interpreted to protect verbal complaints. See, e.g., Kotcher
v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65
(2d Cir. 1992). Congress’s selection of the narrower “file
any complaint” language in the FLSA thus appears to
be significant. See Ball, 228 F.3d at 364 (noting that “Con-
gress has crafted . . . broader anti-retaliation provisions
elsewhere” but “the cause of action for retaliation under
the FLSA is much more circumscribed”); Genesee
Hospital, 10 F.3d at 55 (noting that the FLSA uses
narrower language in its retaliation provision than
Title VII).
Finally, we are aware that “ ‘the remedial nature of the
[FLSA] . . . warrants an expansive interpretation of its
3
(...continued)
their argument, see Ackerley at 1008 (“[I]t is clear that so long
as an employee communicates the substance of his allegations
to the employer . . . he is protected by section 215(a)(3)); Love,
at 387 (“the unofficial assertion of rights through complaints
at work” is protected activity); those cases concerned written
complaints filed with employers.
No. 08-2820 13
provisions . . . . ’ ” Sapperstein, 188 F.3d at 857 (quoting
Herman v. RSR Security Services, 172 F.3d 132, 139 (2d Cir.
1999)). But expansive interpretation is one thing; reading
words out of a statute is quite another. Because we
believe that the FLSA’s use of the phrase “file any com-
plaint” requires a plaintiff employee to submit some
sort of writing, we agree with the district court’s con-
clusion that Kasten’s alleged complaints were not pro-
tected activity under the statute.
III. Conclusion
For the reasons explained above, we affirm the judgment
of the district court.
6-29-09