Kasten v. Saint-Gobain Performance Plastics Corp. , 703 F.3d 966 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1671
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, Judge.
A RGUED O CTOBER 30, 2012—D ECIDED N OVEMBER 30, 2012
Before B AUER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. Kevin Kasten sued his employer,
Saint-Gobain Performance Plastics Corporation (“Saint-
Gobain”), alleging unlawful retaliation for lodging oral
complaints regarding the location of time clocks under
the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§ 215(a)(3). Kasten complained that Saint-Gobain’s time
clocks were placed in locations which caused him to
2 No. 12-1671
frequently forget to punch in, notifying his supervisors
on at least five occasions that the location away from
the donning and doffing area was “illegal.” Kasten failed
to punch in on several occasions, violating company
policy. He was suspended and ultimately terminated.
The district court granted summary judgment for Saint-
Gobain on the ground that oral complaints do not con-
stitute protected activity under the FLSA, and we
affirmed the decision. On certiorari, the Supreme Court
vacated and remanded our decision, holding that oral
complaints may qualify as protected activity where they
provide “fair notice” that an employee is asserting his
rights under the FLSA. Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S. Ct. 1325, 1334 (2011). On remand, the
district court concluded that Kasten’s oral complaints
did in fact provide Saint-Gobain with “fair notice” that
he was asserting rights under the FLSA, but concluded
that Kasten had failed to create a dispute of material
fact regarding causation. Accordingly, the court granted
summary judgment in Saint-Gobain’s favor. Because
Kasten has provided evidence which would support a
jury inference of retaliation, we reverse the district
court’s grant of summary judgment in Saint-Gobain’s
favor and remand for further proceedings.
I. Background
A. Factual Background
Saint-Gobain manufactures a variety of high per-
formance polymer products. Kasten worked for Saint-
Gobain at its Portage, Wisconsin manufacturing and
No. 12-1671 3
production facility from October 2003 through Decem-
ber 2006. Kasten held multiple positions as an hourly
manufacturing and production employee.
Saint-Gobain requires employees like Kasten to punch
in and out of its time clocks to receive a weekly pay-
check. The Saint-Gobain employee policy handbook
explains the existence of a “Corrective Action Program”
that provides for disciplinary action up to and including
termination for employees who fail to punch in and out
correctly. The program’s procedures typically begin with
a verbal reminder, progress to written warnings, and
conclude with termination. Under the Corrective Action
Program, an employee can be terminated after receiving
four disciplinary actions within a twelve-month period.
In addition, Saint-Gobain’s handbook outlines a
distinct “Attendance Policy” applicable to unexcused
absences and tardiness. If an employee punches in late
because he arrived at work late, that employee would
have violated the Attendance Policy. However, if the
employee arrived at work on time and simply forgot to
punch in, that employee would have violated the time
clock policy and would be subject to the Corrective
Action Program. Under the Attendance Policy, an em-
ployee receives a point for every two violations. If an
employee receives seven points under the Attendance
Policy within a twelve-month period, he could be termi-
nated according to that policy.
During Kasten’s 39 months of employment, he re-
ceived the following overall ratings on his performance
appraisals: “Very Good” on March 19, 2003; “Good” on
4 No. 12-1671
May 5, 2003; “Good” on December 8, 2003; “Good” on
May 3, 2004; and “Good” on March 30, 2005. However,
Saint-Gobain also formally disciplined Kasten on eleven
occasions for violations of its employee policies. On
December 30, 2003, February 13, 2004, and January 20,
2006, Saint-Gobain issued Kasten disciplinary action
warning notices for Attendance Policy violations. On
April 5, 2004, June 1, 2004, September 28, 2006, and
October 31, 2006, Saint-Gobain issued him disciplinary
action warning notices for violations of its safety and
accountability policies.
On February 13, 2006, Kasten received a “disciplinary
action warning notice—verbal counseling warning” from
Saint-Gobain because of several “issues” relating to
punching in and out on the time clocks during
January 2006. This 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.” On August 31, 2006, Kasten
received a “disciplinary action warning notice—step 2
policy violation—written warning” from Saint-Gobain,
again regarding problems punching in and out on the
time clocks. The notice stated in part that “[i]f the same
or any other violation occurs in the subsequent 12-
month period from this date [it] will result in further
disciplinary action up to and including termination.”
The parties dispute whether Kasten told his super-
visors that the location of Saint-Gobain’s time clocks
was illegal after he received these two disciplinary warn-
ings. Kasten alleges that he complained multiple times
No. 12-1671 5
that the location of the clocks was illegal, causing him to
miss punches. Specifically, he alleges that in September
or October 2006, he told his Shift Supervisor, Dennis
Woolverton, that he believed the time clock location
was illegal. He also alleges that on three or four occasions
between September and December 2006 he told third
Shift Lead Operator April Luther about his belief
that the time clock location was illegal and that he
was considering starting a lawsuit about it. Saint-
Gobain alleges that Kasten’s complaints instead focused
on the inconvenience of the time clock location.
Management at Saint-Gobain had internal discussions
regarding the legality of the time clock location. On
September 29, 2006, Human Resources Manager Dennis
Brown emailed Plant Manager Daniel Tolles, Human
Resources Generalist Lani Williams, and Plant Engineer
Lance DeLaney regarding the time clocks. Brown wrote
in part:
[a]s you know we need to move our Kronos clocks
to ensure that we are in compliance with Wage and
Hour law which states that employees are to be
paid for the time used to gown/prepare for work. Lani
and I walked out to review our current set-up and
to determine what we should do to become compliant.
On November 10, 2006, Kasten received a “disciplinary
action warning notice—step 3 policy violation—written
warning” and a one-day disciplinary suspension for
his failure to clock in and out on the time clocks on
October 31, 2006. The notice stated in part that “if the
same or any other violation occurs in the subsequent 12-
6 No. 12-1671
month period from this date [it] will result in further
disciplinary action up to and including termination.”
Kasten served his one-day suspension on November 16,
2006. On (or around) November 18, 2006, Kasten forgot
to punch in after returning from lunch. Soon after,
Kasten asked Luther about having a potluck meal at
work, stating that he was probably going to be fired
over his most recent missed punch.
On December 6, 2006, Saint-Gobain suspended Kasten
on the ground that he had violated the time clock
punches policy a fourth time. Kasten alleges that before
the meeting regarding his suspension, Woolverton
stopped him and said, “just lay down and tell them
what they want to hear, [they] can probably save your
job.” Saint-Gobain denies that Woolverton made such
a statement. At the meeting, Kasten asked whether
the location of the clocks was a “legal issue” for the
company. Kasten alleges, and Saint-Gobain denies,
that he told Brown and Operations Manager Steven
Stanford that he believed the location of the time clocks
was illegal and that Saint-Gobain would lose if it was
challenged in court.
Kasten alleges that on December 8, 2006, he had a
phone conversation with Williams in which he told her
that he thought the location of the time clocks was
illegal and that “if they were challenged in court, they
would lose.” That same day, Luther emailed Brown
regarding the conversation, stating that “he made the
comment to me that if he does get fired his name will
be widely known as he has many things in the works.”
No. 12-1671 7
On Saturday, December 9, 2006, Kasten called Shift Super-
visor Mary Riley and asked whether she had read any
articles about a class action lawsuit and time clock
punches. Riley then emailed the Human Resources Man-
ager and Human Resources Generalist the following:
Kevin Kasten called me here at work today about
3:45 PM to ask me if I had read any articles here
about a class action suit and punches. I told him
I hadn’t read anything here and said goodbye.
Kasten alleges that the Human Resources Manager
forwarded this email to the Operations Manager and
Plant Manager on Monday morning, December 11, 2006.
Later that same day, Brown told Kasten over the phone
that Saint-Gobain had decided to terminate his employ-
ment. Kasten alleges that the Operations Manager and
Plant Manager participated in the decision to terminate
his employment. Saint-Gobain’s time clocks were also
moved closer to the donning and doffing area on that
same day.
When asked whether the conversation in which Saint-
Gobain decided to terminate Kasten “involved the
question Mr. Kasten asked about whether the location of
the time clock was a legal issue,” the Human Resources
Manager acknowledged that “it’s likely that it came up.”
Kasten further alleges that management personnel dis-
cussed Kasten’s threat of a potential lawsuit related to
the location of the time clocks. On December 19, 2006,
Williams wrote Kasten a letter confirming his termina-
tion and explaining that the termination was in response
to his repeated violation of the time clock policy.
8 No. 12-1671
Saint-Gobain has terminated several employees for
violating its time clock policy. Kasten alleges that Saint-
Gobain did not promptly terminate two employees that
had more time clock violations than he did, namely,
Shawn McCune and Joyce Montcufe. Saint-Gobain termi-
nated Shawn McCune on January 15, 2007 for violating
the time clock policy, after McCune had received dis-
cipline through Saint-Gobain’s progressive discipline
policy. Joyce Montcufel received three disciplinary warn-
ings for missing punches under the same policy
applicable to Kasten (the time clock policy changed in
May 2007; Montcufel missed a number of punches
after May 2007 and was disciplined according to the
new policy).
On August 15, 2007, Kasten and others filed a class
action lawsuit against Saint-Gobain for violations of the
FLSA, including failure to pay hourly workers at the
Portage, Wisconsin plant for time spent donning and
doffing. On June 2, 2008, the Western District of
Wisconsin District Court granted summary judgment to
the class action plaintiffs, finding as a matter of law that
Saint-Gobain had violated the FLSA. The lawsuit was
subsequently settled on behalf of 156 opt-in collective
class members and 768 Rule 23 class members.
On September 12, 2007, Kasten filed a wage and hour
complaint against Saint-Gobain with the Equal Rights
Division of the Wisconsin Department of Workforce
Development, alleging that he had been wrongfully
terminated. In response to Kasten’s initial retaliation
complaint, Saint-Gobain represented to the Department
No. 12-1671 9
of Workforce Development that Kasten was terminated
because he violated the Attendance Policy. Specifically,
in its position statement to the state, Saint-Gobain ex-
plained that “disciplinary actions for time clock viola-
tions, tardiness, and absenteeism are all governed by
the attendance policy.” Kasten pointed out in his
rebuttal statement that his termination would be
improper under the Attendance Policy, as he had not
clocked in late twenty-five times within a twelve-month
period (the required grounds for termination under
that policy).1 Saint-Gobain later described its aforemen-
tioned position as a labeling error, claiming that Kasten
was terminated pursuant to the Corrective Action
Program rather than the Attendance Policy. The Depart-
ment issued a finding of “Probable Cause” that Saint-
Gobain terminated Kasten in retaliation for his pro-
tected complaints.
B. Procedural Background
On December 5, 2007, Kasten filed this civil action
under the FLSA. He alleged that Saint-Gobain retaliated
against him for lodging oral complaints of alleged FLSA
violations by increasing the frequency and severity of
1
Under the Attendance Policy, after the first ten tardies, an
employee begins to accrue one-half point per tardy and could
be terminated if the employee accrued seven points within
a rolling twelve-month period. In addition, an employee
arriving at seven points for the first time during their em-
ployment could receive one last chance prior to termination.
10 No. 12-1671
disciplinary action against him and by terminating his
employment. On June 18, 2008, the district court granted
Saint-Gobain’s motion for summary judgment on the
basis that oral complaints were not protected activity
under the FLSA; the district court did not address Saint-
Gobain’s arguments regarding the sufficiency of causa-
tion evidence. On appeal, we affirmed the district court’s
decision that oral complaints do not constitute pro-
tected activity under the anti-retaliation provision of the
FLSA. The Supreme Court granted certiorari and held
that oral complaints are protected activity under the
FLSA’s anti-retaliation provision so long as they
provide an employer “fair notice” that the employee
is asserting rights under the FLSA. Kasten, 131 S. Ct.
at 1334. The Court vacated the summary judgment
order and remanded for further proceedings.
On remand, the district court determined that
although Saint-Gobain had received “fair notice” that
Kasten was asserting rights under the FLSA (such that
his activity was protected) and Saint-Gobain had taken
adverse employment actions against him, Kasten had
failed to establish a genuine dispute of material fact
regarding causation. Accordingly, he had not estab-
lished a prima facie case of retaliation. On March 6, 2012,
the district court entered summary judgment in Saint-
Gobain’s favor. Kasten filed a timely notice of appeal.
II. Discussion
Our review of the district court’s grant of summary
judgment is de novo. Raymond v. Ameritech Corp., 442 F.3d
No. 12-1671 11
600, 608 (7th Cir. 2006). Summary judgment is appro-
priate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Facts are viewed in the light most favorable to the
nonmovants, drawing all reasonable inferences in their
favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). If
a “reasonable jury could return a verdict for the
nonmoving party,” summary judgment is improper.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A. Kasten has raised a genuine dispute of material fact
regarding causation
Under the FLSA, it is unlawful for an employer
“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 or related to [the FLSA].” 29 U.S.C.
§ 215(a)(3). Under § 215(a)(3), Kasten has the burden of
demonstrating that Saint-Gobain engaged in retaliatory
conduct, utilizing either the direct or indirect method of
proof. Cichon v. Exelon Generation Co., L.L.C., 401 F.3d
803, 810 (7th Cir. 2005).
To establish a prima facie case of retaliation under the
direct method, Kasten must show: (1) that he engaged in
protected expression; (2) that he suffered an adverse
employment action; and (3) that a causal link existed
between the protected expression and the adverse action.
See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir. 2002). To show causation under the direct
12 No. 12-1671
method, Kasten may rely on either direct evidence of a
causal link, or “circumstantial evidence that is relevant
and probative on any of the elements of a direct case
of retaliation.” Treadwell v. Office of Ill. Sec. of State, 455
F.3d 778, 781 (7th Cir. 2006). In other words, Kasten must
show “that he engaged in protected activity . . . and as a
result suffered the adverse employment action of which
he complains” through the use of direct and/or circum-
stantial evidence. Sylvester v. SOS Children’s Vills. Ill.,
Inc., 453 F.3d 900, 902 (7th Cir. 2006). Direct evidence
is evidence, which “if believed by the finder of fact,
‘will prove the particular fact in question without
reliance upon inference or presumption.’ ” Volovsek v.
Wis. Dep’t of Agric., Trade and Consumer Prot., 344 F.3d
680, 689 (7th Cir. 2003) (internal citation omitted). Cir-
cumstantial evidence, which allows a jury to infer retalia-
tion, may include: (1) suspicious timing, ambiguous
statements or behaviors; (2) evidence that similarly situ-
ated employees were treated differently; or (3) a pretextual
reason for adverse employment action. See id. at 689-90.
Kasten argues that under the direct method of proof
he has adduced sufficient direct and circumstantial evi-
dence to create a genuine dispute of material fact
regarding causation. First, he identifies the fact that Saint-
Gobain’s Human Resources Manager admitted that
decisionmakers “likely” discussed his protected com-
plaints when deciding to terminate his employment.
Second, he suggests that Kasten’s Shift Supervisor fore-
warned him that Saint-Gobain would terminate his em-
ployment unless he would “tell them what they want to
hear,” which he interpreted as a threat that he would
No. 12-1671 13
be fired if he did not stop reporting violations of law.
He also argues that the timing of the events which oc-
curred between December 9, 2008 and December 11, 2008
was suspicious: Hours after management allegedly re-
ceived an email indicating that Kasten had inquired
about class action suits regarding time clock punches,
Kasten was terminated. That same day, the time clocks
were moved closer to the donning and doffing area.
He further suggests that others similarly situated to
him that had not lodged complaints—that is, other em-
ployees who had missed punches—were treated differ-
ently. Finally, he argues that Saint-Gobain offered
pretextual reasons for his termination.2
Kasten has raised a genuine dispute of material fact as
to causation under the direct method of proof. He has
2
It is not clear whether Kasten advances this pretext argument
in the context of the direct method of proof (proffering it as
circumstantial evidence) or the indirect method of proof (as
part of a burden-shifting analysis). Presumably for this reason,
Saint-Gobain argues that Kasten has abandoned the indirect
method of proof argument on appeal, effectively waiving the
issue. However, we have recognized that circumstantial evi-
dence of pretext offered as part of a direct method claim “bears
an eerie similarity to the evidence required under the indirect
method.” Volovsek, 344 F.3d at 690. This notion, coupled with
Kasten’s argument that he can succeed under the indirect
method of proof (Appellant’s Br. 17), suggest that he has not
waived this argument. Nevertheless, because Kasten has
raised a material factual dispute under the direct method, we
do not analyze his claims under the indirect method of proof.
14 No. 12-1671
presented several varieties of circumstantial evidence
which create a permissible jury inference of retaliation:
suspicious timing, ambiguous statements and behavior,
and evidence of pretextual reasoning for his discharge.
See Volovsek, 344 F.3d at 689-90. First, Kasten presents
considerable evidence of suspicious timing permitting
an inference of retaliatory motive: Kasten asked his
Shift Supervisor about class action lawsuits regarding
time clock punches on a Saturday (December 9, 2006)
and the Shift Supervisor relayed this inquiry in an email
to a Human Resources Manager that same day. Two
days later (December 11, 2006), the Human Resources
Manager forwarded the email to the Operations Manager
and Plant Manager, both of whom Kasten alleges partici-
pated in the decision to terminate him. Just a few hours
later that day, Kasten was terminated. Such timing lends
itself to an inference of causation. See Lalvani v. Cook
County, Ill., 269 F.3d 785, 790 (7th Cir. 2001) (“[When] an
adverse employment action follows close on the heels
of protected expression and the plaintiff can show the
person who decided to impose the adverse action knew
of the protected conduct, the causation element of the
prima facie case is typically satisfied.”).
Saint-Gobain argues that Kasten’s claim of suspicious
timing is undermined by the fact that he received disci-
pline relating to clock punch violations both before and
after he engaged in protected activity. However,
Kasten alleges that after he lodged complaints with
his supervisors and management, Saint-Gobain repri-
manded him more often and more severely for infrac-
tions. Specifically, he alleges that prior to September 2006,
No. 12-1671 15
Saint-Gobain had permitted Kasten to miss multiple
time clock punches before disciplining him and permitted
him to apply “personal time” in lieu of disciplinary
action. After he lodged complaints, however, Kasten
alleges that he was disciplined every time he missed a
punch or punched in late and was not permitted to
apply personal time. Based on this record, a reasonable
juror could infer that the heightened severity of
discipline imposed upon Kasten constitutes evidence
of suspicious timing.
We have explained that “mere temporal proximity
between the filing of the charge of discrimination and
the action alleged to have been taken in retaliation for
that filing will rarely be sufficient in and of itself to
create a triable issue.” Stone, 281 F.3d at 644 (citations
omitted). However, in addition to evidence of suspicious
timing, Kasten has also presented evidence of ambiguous
statements. Kasten alleges that immediately before his
suspension meeting with management, his supervisor
told him to “just lay down and tell them what they want
to hear, [they] can probably save your job.” Both the
district court and Saint-Gobain describe this statement
as “too vague” to support a conclusion that Saint-
Gobain terminated Kasten because of his protected
activity. But ambiguous statements are of course by
their nature vague; whether this statement was simply
benign encouragement to “say something positive” at
the meeting, as Saint-Gobain suggests, or was instead a
warning that Kasten was at risk of termination if he
didn’t cease his protected complaints is an appropriate
16 No. 12-1671
question for a jury. Further, the fact that Saint-Gobain
changed the location of the clocks the very day that
Kasten was terminated serves as an example of suspi-
cious behavior, another variety of circumstantial evi-
dence which may permit a reasonable juror to infer re-
taliation. See Volovsek, 344 F.3d at 689. While Saint-
Gobain argues that the decision to move the clocks
was made months before and was wholly unrelated to
Kasten’s complaints, this dispute concerns Saint-
Gobain’s motive; “summary judgment is improper in a
discrimination case where a material issue involves
any weighing of conflicting indications of motive and
intent.” Stumph v. Thomas & Skinner, Inc., 770 F.2d 93,
97 (7th Cir. 1985) (citation omitted).
Further, Kasten has presented evidence that Saint-
Gobain offered pretextual reasons for his discharge.
Specifically, Kasten alleges that while Saint-Gobain
initially relied on the Attendance Policy as providing
the justification for his termination (in its position state-
ment to the Wisconsin Equal Rights Division), Saint-
Gobain later abandoned this position upon learning
that the policy disavowed termination for so few time
clock violations. Saint-Gobain subsequently claimed
that the Corrective Action Policy justified Kasten’s termi-
nation. Kasten argues that such “inconsistency is sug-
gestive of pretext.” Simple v. Walgreen Co., 511 F.3d 668, 671
(7th Cir. 2007). In Simple, we held that an employer’s
inconsistent explanations for taking an adverse employ-
ment action was suggestive of pretext, which, when
supported by other evidence of improper motive, was
No. 12-1671 17
sufficient to defeat a summary judgment motion in
the employer’s favor. Id.3
In response to these allegations, Saint-Gobain argues
that this court is not charged with adjudicating the
application of an employer’s personnel policies. See
Appelbaum v. Milwaukee Metro. Sewerage Dis., 340 F.3d
573, 579 (7th Cir. 2003) (“We are not, after all, a super-
personnel department that sits in judgment of the
wisdom of an employer’s employment decisions.”).
However, without commenting on the wisdom of Saint-
Gobain’s policies, we may recognize that throughout
the course of its dealings with Kasten, Saint-Gobain
changed its purported rationale for his termination.
Indeed, Saint-Gobain acknowledges as much, though
attributes the shift in its stance to a “labeling error” in
its letter to the Equal Rights Division rather than an
effort to “hide the truth.”
The facts surrounding the shifting explanations
for termination, as alleged by Kasten, are the following:
Saint-Gobain represented to the state of Wisconsin that
it had terminated Kasten pursuant to its Attendance
3
We made these observations in Simple in the context of an
argument under the indirect method of proof. See 511 F.3d at
671. However, as previously mentioned, circumstantial evi-
dence under the direct method “bears an eerie similarity” to
evidence of pretext in the context of the indirect method.
Volovsek, 344 F.3d at 690. Thus, the reasoning of Simple lends
support to a finding that Kasten has established a genuine
dispute regarding pretextual reasoning on the part of Saint-
Gobain under the direct method of proof.
18 No. 12-1671
Policy. However, the letter in which Saint-Gobain
referred to this rationale did not merely label the policy
under which Kasten was terminated, but actually ex-
plained its reasoning: “disciplinary actions for time clock
violations, tardiness, and absenteeism are all governed
by the attendance policy.” (emphasis added). Once Kasten
pointed out in his rebuttal statement to the Wisconsin
Equal Rights Division that termination under the Atten-
dance Policy was improper and the Division issued a
finding of probable cause that Kasten was terminated
in retaliation for his protected complaints, Saint-Gobain
shifted its position, claiming that Kasten was terminated
under the Corrective Action Program.
Such apparent inconsistency is suggestive of pretext.
As in Simple, Saint-Gobain’s inconsistent explanations
reinforce other evidence of a retaliatory motive for
Kasten’s discharge and accordingly permit Kasten to
withstand a summary judgment motion. 511 F.3d at 671.
Because Kasten has produced evidence of suspicious
timing, ambiguous statements and behaviors, and pretext
from which a jury could permissibly infer that Saint-
Gobain retaliated against him for engaging in protected
activity, he has raised a genuine dispute of material fact
as to causation. We reverse the grant of summary judg-
ment in Saint-Gobain’s favor.
B. Kasten’s oral complaints put Saint-Gobain on “fair
notice” that that he was invoking rights under the
FLSA
Saint-Gobain argues that in the alternative, we may
affirm summary judgment on the basis that Kasten
No. 12-1671 19
did not engage in any protected activity and accordingly
has not established a prima facie case of retaliation.
The Supreme Court explained that oral complaints only
constitute protected activity where such complaints
provide the employer with “fair notice” that the
employee is invoking rights under the FLSA. Kasten, 131
S. Ct. at 1334 (“[T]he phrase ‘filed any complaint’ contem-
plates some degree of formality, certainly to the point
where the recipient has been given fair notice that a
grievance has been lodged and does, or should, rea-
sonably understand the matter as part of its business
concerns.”). Specifically, “[t]o fall within the scope of the
antiretaliation provision, a complaint must be suf-
ficiently 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.” Id. at 1335. This standard is an
“objective” one. See id. Thus, for Kasten to prevail
in establishing that his activity was protected, Saint-
Gobain need not actually have known that Kasten was
asserting rights under the FLSA, so long as a reasonable
employer in Saint-Gobain’s circumstances and armed
with its knowledge of the relevant context would have
had fair notice of his assertion of rights protected by
the FLSA.
The district court correctly determined that at the
summary judgment stage, Kasten is entitled to a
finding that Saint-Gobain had fair notice of Kasten’s as-
sertion of rights. Kasten alleges that he complained
about the location of the time clocks on at least five sepa-
rate occasions and that he notified his supervisors that
20 No. 12-1671
he was contemplating bringing a lawsuit which he
thought Saint-Gobain would lose. See EEOC v. Romeo
Community Schools, 976 F.2d 985, 989 (6th Cir. 1992) (find-
ing protected activity where an employee alleged that
employer was “breaking some sort of law”). Such allega-
tions must be credited at this stage. Further, during
this time period Saint-Gobain’s management was dis-
cussing the legality of the time clock location and acknowl-
edged in emails that it might need to move them to
insure compliance with wage and hour laws and com-
pensate employees for time spent donning and doffing.
In light of these facts, which must be viewed in the light
most favorable to Kasten at the summary judgment
stage, we conclude that a reasonable employer in Saint-
Gobain’s position would have received fair notice that
Kasten was asserting rights under the FLSA. Accordingly,
Kasten engaged in protected activity for purposes of
his retaliation claim. We decline Saint Gobain’s invita-
tion to affirm summary judgment on these grounds.
IV. Conclusion
For the foregoing reasons, we R EVERSE the grant of
summary judgment in Saint-Gobain’s favor and R EMAND
for further proceedings.
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