Kasten v. Saint-Gobain Performance Plastics Corp. , 131 S. Ct. 1325 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 09–834. Argued October 13, 2010—Decided March 22, 2011
Petitioner Kasten brought an antiretaliation suit against his former
employer, respondent (Saint-Gobain), under the Fair Labor Stan
dards Act of 1938 (Act), which provides minimum wage, maximum
hour, and overtime pay rules; and which forbids employers “to dis
charge . . . any employee because such employee has filed any com
plaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). In a re
lated suit, the District Court found that Saint-Gobain violated the
Act by placing timeclocks in a location that prevented workers from
receiving credit for the time they spent donning and doffing work
related protective gear. In this suit Kasten claims that he was dis
charged because he orally complained to company officials about the
timeclocks. The District Court granted Saint-Gobain summary
judgment, concluding that the Act’s antiretaliation provision did not
cover oral complaints. The Seventh Circuit affirmed.
Held: The scope of statutory term “filed any complaint” includes oral, as
well as written, complaints. Pp. 4–15.
(a) The interpretation of the statutory phrase “depends upon read
ing the whole statutory text, considering the [statute’s] purpose and
context . . . , and consulting any precedents or authorities that inform
the analysis.” Dolan v. Postal Service, 546 U. S. 481, 486. The text,
taken alone, cannot provide a conclusive answer here. Some diction
ary definitions of “filed” contemplate a writing while others permit
using “file” in conjunction with oral material. In addition to diction
ary definitions, state statutes and federal regulations sometimes con
template oral filings, and contemporaneous judicial usage shows that
oral filings were a known phenomenon at the time of the Act’s pas
sage. Even if “filed,” considered alone, might suggest a narrow inter
2 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Syllabus
pretation limited to writings, “any complaint” suggests a broad inter
pretation that would include an oral complaint. Thus, the three-word
phrase, taken by itself, cannot answer the interpretive question. The
Act’s other references to “filed” also do not resolve the linguistic ques
tion. Some of those provisions involve filed material that is virtually
always in writing; others specifically require a writing, and the re
mainder, like the provision here, leave the oral/written question un
resolved. Since “filed any complaint” lends itself linguistically to the
broader, “oral” interpretation, the use of broader language in other
statutes’ antiretaliation provisions does not indicate whether Con
gress did or did not intend to leave oral grievances unprotected here.
Because the text, taken alone, might, or might not, encompass oral
complaints, the Court must look further. Pp. 4–8.
(b) Several functional considerations indicate that Congress in
tended the antiretaliation provision to cover oral, as well as written,
complaints. Pp. 8–14.
(1) A narrow interpretation would undermine the Act’s basic ob
jective, which is to prohibit “labor conditions detrimental to the
maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers,” 29 U. S. C. §202(a).
The Act relies for enforcement of its substantive standards on “infor
mation and complaints received from employees,” Mitchell v. Robert
DeMario Jewelry, Inc., 361 U. S. 288, 292, and its antiretaliation pro
vision makes the enforcement scheme effective by preventing “fear of
economic retaliation” from inducing workers “quietly to accept sub
standard conditions,” ibid. Why would Congress want to limit the en
forcement scheme’s effectiveness by inhibiting use of the Act’s com
plaint procedure by those who would find it difficult to reduce their
complaints to writing, particularly the illiterate, less educated, or
overworked workers who were most in need of the Act’s help at the
time of passage? Limiting the provision’s scope to written complaints
could prevent Government agencies from using hotlines, interviews,
and other oral methods to receive complaints. And insofar as the
provision covers complaints made to employers, a limiting reading
would discourage using informal workplace grievance procedures to
secure compliance with the Act. The National Labor Relations Act’s
antiretaliation provision has been broadly interpreted as protecting
workers who simply “participate[d] in a [National Labor Relations]
Board investigation.” NLRB v. Scrivener, 405 U. S. 117, 123. The
similar enforcement needs of this related statute argue for a broad
interpretation of “complaint.” The Act’s requirement that an em
ployer receive fair notice of an employee’s complaint can be met by
oral, as well as written, complaints. Pp. 8–12.
(2) Given the delegation of enforcement powers to federal admin
Cite as: 563 U. S. ____ (2011) 3
Syllabus
istrative agencies, their views about the meaning of the phrase
should be given a degree of weight. The Secretary of Labor has con
sistently held the view that “filed any complaint” covers both oral and
written complaints. The Equal Employment Opportunity Commis
sion has set out a similar view in its Compliance Manual and in mul
tiple briefs. These views are reasonable and consistent with the Act.
And the length of time they have been held suggests that they reflect
careful consideration, not “post hoc rationalizatio[n].” Motor Vehicle
Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins.
Co., 463 U. S. 29, 50. Pp. 12–13.
(3) After engaging in traditional statutory interpretation meth
ods, the statute does not remain sufficiently ambiguous to warrant
application of the rule of lenity. Pp. 13–14.
(c) This Court will not consider Saint-Gobain’s alternative claim
that the antiretaliation provision applies only to complaints filed
with the Government, since that claim was not raised in the certio
rari briefs and since its resolution is not a “ ‘predicate to an intelli
gent resolution’ ” of the oral/written question at issue, Caterpillar
Inc. v. Lewis, 519 U. S. 61, 75, n. 13. Pp. 14–15.
570 F. 3d 834, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined as to
all but n. 6. KAGAN, J., took no part in the consideration or decision of
the case.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–834
_________________
KEVIN KASTEN, PETITIONER v. SAINT-GOBAIN
PERFORMANCE PLASTICS CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[March 22, 2011]
JUSTICE BREYER delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (Act) sets forth
employment rules concerning minimum wages, maximum
hours, and overtime pay. 52 Stat. 1060, 29 U. S. C. §201 et
seq. The Act contains an antiretaliation provision that
forbids employers
“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 Act], or has
testified or is about to testify in such proceeding, or
has served or is about to serve on an industry commit­
tee.” §215(a)(3) (emphasis added).
We must decide whether the statutory term “filed any
complaint” includes oral as well as written complaints
within its scope. We conclude that it does.
I
The petitioner, Kevin Kasten, brought this antiretalia­
tion lawsuit against his former employer, Saint-Gobain
Performance Plastics Corporation. Kasten says that
2 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
Saint-Gobain located its timeclocks between the area
where Kasten and other workers put on (and take off)
their work-related protective gear and the area where they
carry out their assigned tasks. That location prevented
workers from receiving credit for the time they spent
putting on and taking off their work clothes—contrary to
the Act’s requirements. In a related suit the District
Court agreed with Kasten, finding that Saint-Gobain’s
“practice of not compensating . . . for time spent donning
and doffing certain required protective gear and walking
to work areas” violated the Act. Kasten v. Saint-Gobain
Performance Plastics Corp., 556 F. Supp. 2d 941, 954 (WD
Wis. 2008). In this suit Kasten claims unlawful retalia­
tion. He says that Saint-Gobain discharged him because
he orally complained to Saint-Gobain officials about the
timeclocks.
In particular, Kasten says that he repeatedly called the
unlawful timeclock location to Saint-Gobain’s attention—
in accordance with Saint-Gobain’s internal grievance­
resolution procedure. See Brief for Petitioner 4 (quoting
Saint-Gobain’s Code of Ethics and Business Conduct as
imposing upon every employee “the responsibility to report
. . . suspected violations of . . . any applicable law of which
he or she becomes aware”); id., at 4–5 (quoting Saint-
Gobain’s Employee Policy Handbook as instructing em­
ployees with “questions, complaints, and problems” to
“[c]ontact” their “supervisor[s] immediately” and if neces­
sary “take the issue to the next level of management,”
then to the “local Human Resources Manager,” then to
“Human Resources” personnel at the “Regional” or “Head­
quarters” level).
Kasten adds that he “raised a concern” with his shift
supervisor that “it was illegal for the time clocks to be
where they were” because of Saint-Gobain’s exclusion of
“the time you come in and start doing stuff”; he told a
human resources employee that “if they were to get chal­
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
lenged on” the location in court, “they would lose”; he told
his lead operator that the location was illegal and that he
“was thinking about starting a lawsuit about the place­
ment of the time clocks”; and he told the human resources
manager and the operations manager that he thought the
location was illegal and that the company would “lose” in
court. Record in No. 3:07–cv–00686–bbc (WD Wis.), Doc.
87–3, pp. 31–34 (deposition of Kevin Kasten). This activ­
ity, Kasten concludes, led the company to discipline him
and, in December 2006, to dismiss him.
Saint-Gobain presents a different version of events. It
denies that Kasten made any significant complaint about
the timeclock location. And it says that it dismissed Kas­
ten simply because Kasten, after being repeatedly warned,
failed to record his comings and goings on the timeclock.
For present purposes we accept Kasten’s version of
these contested events as valid. See Scott v. Harris, 550
U. S. 372, 380 (2007). That is because the District Court
entered summary judgment in Saint-Gobain’s favor. 619
F. Supp. 2d 608, 610 (WD Wis. 2008). And it did so, not
because it doubted Kasten’s ability to prove the facts he
alleged, but because it thought the Act did not protect oral
complaints. Id., at 611–613. On appeal, the Seventh
Circuit agreed with the District Court that the Act’s an­
tiretaliation provision does not cover oral complaints. 570
F. 3d 834, 838–840 (2009).
Kasten sought certiorari. And in light of conflict among
the Circuits as to whether an oral complaint is protected,
we granted Kasten’s petition. Compare Hagan v. Echostar
Satellite, L. L. C., 529 F. 3d 617, 625–626 (CA5 2008)
(antiretaliation provision covers oral complaints); Lambert
v. Ackerley, 180 F. 3d 997, 1007 (CA9 1999) (en banc)
(same); with Lambert v. Genesee Hospital, 10 F. 3d 46, 55–
56 (CA2 1993) (antiretaliation provision does not cover
informal complaints to supervisors). See also Pacheco v.
Whiting Farms, Inc., 365 F. 3d 1199, 1206 (CA10 2004)
4 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
(antiretaliation provision covers unofficial assertion of
rights); EEOC v. White & Son Enterprises, 881 F. 2d 1006,
1011–1012 (CA11 1989) (same); Moore v. Freeman, 355
F. 3d 558, 562–563 (CA6 2004) (assuming without discus­
sion that oral complaints are covered); Brennan v. Maxey’s
Yamaha, Inc., 513 F. 2d 179, 181 (CA8 1975) (same).
II
The sole question presented is whether “an oral com­
plaint of a violation of the Fair Labor Standards Act” is
“protected conduct under the [Act’s] anti-retaliation provi­
sion.” Pet. for Cert. i. The Act protects employees who
have “filed any complaint,” 29 U. S. C. §215(a)(3), and
interpretation of this phrase “depends upon reading the
whole statutory text, considering the purpose and context
of the statute, and consulting any precedents or authori­
ties that inform the analysis,” Dolan v. Postal Service, 546
U. S. 481, 486 (2006). This analysis leads us to conclude
that the language of the provision, considered in isolation,
may be open to competing interpretations. But consider­
ing the provision in conjunction with the purpose and
context leads us to conclude that only one interpretation is
permissible.
A
We begin with the text of the statute. The word “filed”
has different relevant meanings in different contexts.
Some dictionary definitions of the word contemplate a
writing. See, e.g., Webster’s New International Dictionary
945 (2d ed. 1934) (def. 4(a)) (to file is to “deliver (a paper or
instrument) to the proper officer so that it is received by
him to be kept on file, or among the records of his office”
(emphasis added)); Webster’s Ninth New Collegiate Dic­
tionary 462 (1983) (def. 2(a)) (one definition of “file” is “to
place among official records as prescribed by law”).
But other dictionaries provide different definitions that
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
permit the use of the word “file” in conjunction with oral
material. One can, for example, file an oral statement
that enters a matter “into the order of business.” 1 Funk
& Wagnalls New Standard Dictionary of the English
Language 920 (rev. ed. 1938) (def. 2) (to file is to “present
in the regular way, as to a judicial or legislative body, so
that it shall go upon the records or into the order of busi­
ness”). This possibility is significant because it means
that dictionary meanings, even if considered alone, do not
necessarily limit the scope of the statutory phrase to writ­
ten complaints. Cf. Crawford v. Metropolitan Government
of Nashville and Davidson Cty., 555 U. S. ___, ___ (2009)
(slip op., at 5) (looking for the “limits” of a linguistic
phrase rather than what “exemplif[ies]” its application).
In addition to the dictionary definitions, we have found
that legislators, administrators, and judges have all some­
times used the word “file” in conjunction with oral state­
ments. Thus state statutes sometimes contemplate oral
filings. See, e.g., Alaska Stat. §47.32.090(a) (2008) (“file a
verbal or written complaint”); Cal. Health & Safety
Code Ann. §17055(a) (West 2006) (“file an administra-
tive complaint orally or in writing”); D. C. Code §7–
1231.12(a)(2)(B) (2001) (“filing his or her grievance, orally
or in writing”); Ga. Code Ann. §§31–8–124(a), (c), 31–8–
134(b) (2009) (“to file a grievance,” a person may “submit
an oral or written complaint”); Ind. Code §27–8–28–14(a)
(2009) (“file a grievance orally or in writing”); Me. Rev.
Stat. Ann., Tit. 34–B, §5604(3)(B) (2009) (“filed through an
oral request”); Miss. Code Ann. §69–47–23(4) (2005) (“file
a written or oral complaint”); Mo. Rev. Stat. §198.088.3(3)
(2009) (to have a complaint “filed,” a person “shall write or
cause to be written his grievance or shall state it orally”);
Nev. Rev. Stat. §§618.336(2)(a), 618.341(1)(a) (2009) (“oral
or written complaint filed”); N. J. Stat. Ann. §30:4C–12
(West 2008) (“written or oral complaint may be filed”);
N. Y. Ins. Law Ann. §§3217–a(a)(7), 4324(a)(7) (West
6 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
2006) (“file a grievance orally”); N. Y. Pub. Health Law
Ann. §§4408(1)(g) (West Supp. 2010) (“file a grievance
orally”); Pa. Stat. Ann., Tit. 40, §§991.2141(a)–(b) (Purdon
1999) (“file a . . . written or oral complaint”); Tex. Ins.
Code Ann. §§1305.401(a)–(b) (West 2009) (“oral or written
complaint” must be “file[d]”); Wash. Rev. Code
§§90.64.030(3), (5) (2008) (“complaints have been filed . . .
as the result of either an oral or a written complaint”).
Regulations promulgated by various federal agencies
sometimes permit complaints to be filed orally. See, e.g.,
32 CFR §842.20 (2010) (“[f]iling a claim” may proceed
“orally or in writing”); 42 CFR §422.564(d)(1) (2009) (“file
a grievance . . . either orally or in writing”); §423.564(d)(1)
(same); §438.402(b)(3)(i) (“file a grievance either orally or
in writing”); §494.180(e) (“file an oral or written griev­
ance”); 49 CFR §1503.629(c) (2009) (“[f]iling of motions . . .
must be in writing or orally on the record” (italics omit­
ted)); 42 CFR §438.402(b)(3)(ii) (2009) (“file an appeal
either orally or in writing”).
And a review of contemporaneous judicial usage, cf.
Utah v. Evans, 536 U. S. 452, 475 (2002), shows that oral
filings were a known phenomenon when the Act was
passed. See, e.g., Reed Oil Co. v. Cain, 169 Ark. 309, 312,
275 S. W. 333, 334 (1925) (“appellee filed . . . an oral com­
plaint”); Tingler v. Lahti, 87 W. Va. 499, 503, 105 S. E.
810, 812 (1921) (“complaint subsequently filed, either oral
or written”); Ex parte Mosgrove, 47 Okla. Cr. 40, 287 P.
795 (1930) (only “complaint . . . filed against him” was
“oral complaint of the town marshal”); Indian Fred v.
State, 36 Ariz. 48, 52–53, 282 P. 930, 932 (1929) (“filed an
oral motion to quash”); Dunn v. State, 60 Okla. Cr. 201,
203, 63 P. 2d 772, 773 (1936) (“filed an oral demurrer”);
Morrison v. Lewis, 58 Ga. App. 677, 199 S. E. 782 (1938)
(“filed an oral motion” demurring); Brock v. Cullum Bros.,
263 S. W. 335 (Tex. Civ. App. 1924) (“filed an oral motion
to quash”); Fike v. Allen, 269 S. W. 179, 180 (Tex. Civ.
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
App. 1925) (“filed oral pleadings”).
Filings may more often be made in writing. See, e.g.,
Ritter v. United States, 28 F. 2d 265, 267 (CA3 1928)
(finding words “file a claim for refund” to require a written
request in context of tax code). But we are interested in
the filing of “any complaint.” So even if the word “filed,”
considered alone, might suggest a narrow interpretation
limited to writings, the phrase “any complaint” suggests a
broad interpretation that would include an oral complaint.
See, e.g., Republic of Iraq v. Beaty, 556 U. S. ___, ___
(2009) (slip op., at 7). The upshot is that the three-word
phrase, taken by itself, cannot answer the interpretive
question.
We can look further to other appearances of the word
“filed” in the Act. See MCI Telecommunications Corp. v.
American Telephone & Telegraph Co., 512 U. S. 218, 226
(1994) (examining “contextual indications” of the meaning
of a term). That word (or a variant) appears in numerous
other provisions. But its appearance elsewhere in the Act
does not resolve the linguistic question before us. Some of
those other provisions (1) involve filed material that,
unlike a complaint, is of a kind that is virtually always in
writing. See, e.g., 29 U. S. C. §203(l) (employers must
“have on file an unexpired certificate” (emphasis added));
§210(a) (Secretary must “file in the court the record of
the industry committee” (emphasis added)); ibid. (industry
committee must “file” its findings and recommendations).
Others (2) specifically require a writing, see, e.g.,
§214(c)(5)(A) (requiring employee’s “consent in writing” to
join collective action to be “filed” (emphasis added));
§216(b) (same). And the remainder (3) leave the oral/
written question unresolved—just as does the provision
before us. See, e.g., §210(b) (prohibiting a stay unless
movant “file[s] in court an undertaking” (emphasis
added)); §214(c)(5)(A) (employee “may file . . . a petition”
for review of a special wage rate (emphasis added)).
8 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
Looking beyond the Act, we find other statutes that
contain antiretaliation provisions. Those statutes, how­
ever, use somewhat different language. See, e.g.,
§158(a)(4) (protecting an employee who has “filed charges
or given testimony”); §623(d) (protecting those who
“opposed any [unlawful] practice” (emphasis added));
42 U. S. C. §§2000e–3(a), 12203(a) (same); 29 U. S. C.
§2615(a)(2) (similar). See also, e.g., 15 U. S. C. §2087(a)(1)
(2006 ed., Supp. III) (“provided . . . to the employer . . .
information relating to any violation” (emphasis added));
§2651(a) (similar); 30 U. S. C. §815(c)(1) (“filed or made a
complaint” (emphasis added)); 42 U. S. C. §5851(a)(1)(A)
(“notified his employer” (emphasis added)); 49 U. S. C.
§42121(a)(1) (“provided . . . information” (emphasis
added)); §60129(a)(1) (same). Some of this language is
broader than the phrase before us, but, given the fact that
the phrase before us lends itself linguistically to the
broader, “oral” interpretation, the use of broader language
elsewhere may mean (1) that Congress wanted to limit the
scope of the phrase before us to writings, or (2) that Con­
gress did not believe the different phraseology made a
significant difference in this respect. The language alone
does not tell us whether Congress, if intending to protect
orally expressed grievances elsewhere, did or did not
intend to leave those oral grievances unprotected here.
The bottom line is that the text, taken alone, cannot
provide a conclusive answer to our interpretive question.
The phrase “filed any complaint” might, or might not,
encompass oral complaints. We must look further.
B
1
Several functional considerations indicate that Congress
intended the antiretaliation provision to cover oral, as well
as written, “complaint[s].” First, an interpretation that
limited the provision’s coverage to written complaints
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
would undermine the Act’s basic objectives. The Act seeks
to prohibit “labor conditions detrimental to the mainte­
nance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers.” 29
U. S. C. §202(a). It does so in part by setting forth sub­
stantive wage, hour, and overtime standards. It relies for
enforcement of these standards, not upon “continuing
detailed federal supervision or inspection of payrolls,” but
upon “information and complaints received from employ­
ees seeking to vindicate rights claimed to have been de­
nied.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S.
288, 292 (1960). And its antiretaliation provision makes
this enforcement scheme effective by preventing “fear of
economic retaliation” from inducing workers “quietly to
accept substandard conditions.” Ibid.Why would Congress want to limit the enforcement
scheme’s effectiveness by inhibiting use of the Act’s com­
plaint procedure by those who would find it difficult to
reduce their complaints to writing, particularly illiterate,
less educated, or overworked workers? President Franklin
Roosevelt pointed out at the time that these were the
workers most in need of the Act’s help. See Message to
Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong.,
1st Sess., 4 (seeking a bill to help the poorest of “those who
toil in factory”).
In the years prior to the passage of the Act, illiteracy
rates were particularly high among the poor. See E.
Gordon & E. Gordon, Literacy in America 273 (2003) (one­
quarter of World War I conscripts were illiterate); Dept. of
Commerce, Bureau of Census, Sixteenth Census of the
United States, 1940, Population: The Labor Force (Sample
Statistics): Occupational Characteristics 60 (1943) (20.8%
of manufacturing laborers in 1940 had less than five years
of schooling). Those rates remained high in certain indus­
tries for many years after the Act’s passage. In 1948, for
example, the National War Labor Board wrote:
10 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
“In many plants where there is a high degree of illit­
eracy, the writing of grievances by employees works a
substantial hardship. In other plants where there is
considerable dirt and special clothes must be worn, it
is often not practicable to write up grievances during
work hours.” 1 The Termination Report of the Na­
tional War Labor Board, p. 122.
To limit the scope of the antiretaliation provision to the
filing of written complaints would also take needed flexi­
bility from those charged with the Act’s enforcement. It
could prevent Government agencies from using hotlines,
interviews, and other oral methods of receiving com­
plaints. And insofar as the antiretaliation provision cov­
ers complaints made to employers (a matter we need not
decide, see infra, at 14–15), it would discourage the use of
desirable informal workplace grievance procedures to
secure compliance with the Act. Cf. Burlington Industries,
Inc. v. Ellerth, 524 U. S. 742, 764 (1998) (reading Title VII
to encourage the development of effective grievance proce­
dures to deter misconduct); D. McPherson, C. Gates, & K.
Rogers, Resolving Grievances: A Practical Approach 38–40
(1983) (describing the significant benefits of unwritten
complaints).
Given the need for effective enforcement of the National
Labor Relations Act (NLRA), this Court has broadly inter­
preted the language of the NLRA’s antiretaliation provi­
sion—“filed charges or given testimony,” 29 U. S. C.
§158(a)(4)—as protecting workers who neither filed
charges nor were “called formally to testify” but simply
“participate[d] in a [National Labor Relations] Board
investigation.” NLRB v. Scrivener, 405 U. S. 117, 123
(1972) (emphasis added). The similar enforcement needs
of this related statute argue for an interpretation of the
word “complaint” that would provide “broad rather than
narrow protection to the employee,” id., at 122 (and would
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
do so here without pressing statutory language to its
limit). See also Tennessee Coal, Iron & R. Co. v. Muscoda
Local No. 123, 321 U. S. 590, 597 (1944) (the Act’s “reme­
dial and humanitarian . . . purpose” cautions against
“narrow, grudging” interpretations of its language).
Saint-Gobain replies that worker protection is not the
only relevant statutory objective. The Act also seeks to
establish an enforcement system that is fair to employers.
To do so, the employer must have fair notice that an em­
ployee is making a complaint that could subject the em­
ployer to a later claim of retaliation. If oral complaints
suffice, Saint-Gobain adds, employers too often will be left
in a state of uncertainty about whether an employee (par­
ticularly an employee who seems unusually angry at the
moment) is in fact making a complaint about an Act viola­
tion or just letting off steam.
We agree with Saint-Gobain that the statute requires
fair notice. Although the dictionary definitions, statutes,
regulations, and judicial opinions we considered, see su
pra, at 4–7, do not distinguish between writings and oral
statements, they do suggest that a “filing” is a serious
occasion, rather than a triviality. As such, the phrase
“filed any complaint” contemplates some degree of formal­
ity, certainly to the point where the recipient has been
given fair notice that a grievance has been lodged and
does, or should, reasonably understand the matter as part
of its business concerns.
Moreover, the statute prohibits employers from dis­
criminating against an employee “because such employee
has filed any complaint.” §215(a)(3) (emphasis added).
And it is difficult to see how an employer who does not (or
should not) know an employee has made a complaint could
discriminate because of that complaint. But we also be­
lieve that a fair notice requirement does not necessarily
mean that notice must be in writing.
At oral argument, the Government said that a complaint
12 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
is “filed” when “a reasonable, objective person would have
understood the employee” to have “put the employer on
notice that [the] employee is asserting statutory rights
under the [Act].” Tr. of Oral Arg. 23, 26. We agree. To
fall within the scope of the antiretaliation provision, a
complaint 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. This standard
can be met, however, by oral complaints, as well as by
written ones.
2
Second, given Congress’ delegation of enforcement pow­
ers to federal administrative agencies, we also give a
degree of weight to their views about the meaning of this
enforcement language. See 29 U. S. C. §216(c) (vesting
enforcement power in Secretary of Labor); Reorganization
Plan No. 1 of 1978, 5 U. S. C. App. §1, p. 664 (transferring
to Equal Employment Opportunity Commission (EEOC)
enforcement of this antiretaliation provision as part of its
Equal Pay Act enforcement responsibilities); Skidmore v.
Swift & Co., 323 U. S. 134, 140 (1944) (giving weight to a
persuasive articulation of views within an agency’s area of
expertise).
The Secretary of Labor has consistently held the view
that the words “filed any complaint” cover oral, as well as
written, complaints. The Department of Labor articulated
that view in an enforcement action filed many years ago,
Goldberg v. Zenger, 43 CCH LC ¶31,155, pp. 40,985,
40,986 (D Utah 1961). It has subsequently reaffirmed
that view in briefs. See, e.g., Brief for Secretary of Labor
as Amicus Curiae Supporting Petition for Rehearing with
Suggestion for Rehearing En Banc in Lambert v. Ackerley,
No. 96–36017 etc. (CA9), pp. 6–7. And more recently it
has acted in accordance with that view by creating a hot­
Cite as: 563 U. S. ____ (2011) 13
Opinion of the Court
line to receive oral complaints, see Dept. of Labor, Compli­
ance Assistance By Law—The Fair Labor Standards Act
(FLSA), http://www.dol.gov/compliance/laws/comp-flsa.htm
(as visited Mar. 18, 2011, and available in Clerk of Court’s
case file) (directing participants who wish to “file a com­
plaint” to contact a local office “or call the Department’s
Toll-Free Wage and Hour Help Line at 1–866–4–US–
WAGE”).
The EEOC has set forth a similar view in its Compli­
ance Manual, Vol. 2, §8–II(B)(1), p. 8–3, and n. 12 (1998),
and in multiple briefs, see, e.g., Brief for EEOC as Amicus
Curiae in Support of Petition for Rehearing with Sugges­
tion for Rehearing En Banc in Lambert v. Ackerley, No.
96–36017 etc. (CA9), pp. 8–13; Brief for Appellee in EEOC
v. White & Son Enterprises, Inc., No. 88–7658 (CA11),
pp. 29–30.
These agency views are reasonable. They are consistent
with the Act. The length of time the agencies have held
them suggests that they reflect careful consideration, not
“post hoc rationalizatio[n].” Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co.,
463 U. S. 29, 50 (1983). And they consequently add force
to our conclusion. Skidmore, supra, at 140; cf. United
States v. Mead Corp., 533 U. S. 218, 229, 234–235 (2001)
(Court sometimes finds judicial deference intended even in
absence of rulemaking authority); Babbitt v. Sweet Home
Chapter, Communities for Great Ore., 515 U. S. 687, 703–
704, and n. 18 (1995) (agency views, where the law coun­
sels deference, can clarify otherwise ambiguous statutory
provisions).
3
Finally, we note that Saint-Gobain invokes the “rule of
lenity” in support of its “written complaint” interpretation.
That rule applies primarily to the interpretation of crimi­
nal statutes. It leads us to favor a more lenient interpre­
14 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
Opinion of the Court
tation of a criminal statute “when, after consulting tradi­
tional canons of statutory construction, we are left with an
ambiguous statute.” United States v. Shabani, 513 U. S.
10, 17 (1994). We agree with Saint-Gobain that those who
violate the antiretaliation provision before us are subject
to criminal sanction, 29 U. S. C. §216(a). And we have
said that the rule of lenity can apply when a statute with
criminal sanctions is applied in a noncriminal context.
See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But
after engaging in traditional methods of statutory inter­
pretation, we cannot find that the statute remains suffi­
ciently ambiguous to warrant application of the rule of
lenity here.
C
Alternatively, Saint-Gobain claims that it should prevail
because Kasten complained to a private employer, not to
the Government; and, in Saint-Gobain’s view, the antire­
taliation provision applies only to complaints filed with
the Government. Saint-Gobain advanced this claim in the
lower courts, which held to the contrary. 570 F. 3d, at837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said
nothing about it in response to Kasten’s petition for certio­
rari. Indeed, it did not mention the claim in this Court
until it filed its brief on the merits.
We do not normally consider a separate legal question
not raised in the certiorari briefs. See this Court’s Rule
15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13
(1996). We see no reason to make an exception here.
Resolution of the Government/private employer question
is not a “ ‘ “predicate to an intelligent resolution” ’ ” of the
oral/written question that we granted certiorari to decide.
See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38
(1996)). That is to say, we can decide the oral/written
question separately—on its own. And we have done so.
Thus, we state no view on the merits of Saint-Gobain’s
Cite as: 563 U. S. ____ (2011) 15
Opinion of the Court
alternative claim. Cf. post, at 1–5 (SCALIA, J., dissenting).
* * *
We conclude that the Seventh Circuit erred in determin­
ing that oral complaints cannot fall within the scope of the
phrase “filed any complaint” in the Act’s antiretaliation
provision. We leave it to the lower courts to decide
whether Kasten will be able to satisfy the Act’s notice
requirement. We vacate the Circuit’s judgment and re­
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 563 U. S. ____ (2011) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–834
_________________
KEVIN KASTEN, PETITIONER v. SAINT-GOBAIN
PERFORMANCE PLASTICS CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[March 22, 2011]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to
all but footnote 6, dissenting.
The Seventh Circuit found for the employer because it
held that the Fair Labor Standards Act of 1938 (FLSA), 29
U. S. C. §215(a)(3), covers only written complaints to the
employer. I would affirm the judgment on the ground that
§215(a)(3) does not cover complaints to the employer at all.
I
The FLSA’s retaliation provision states that it shall be
unlawful
“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 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 com
mittee.” Ibid.
The phrase central to the outcome here is “filed any com
plaint.” In the courts below, Kasten asserted a claim for
retaliation based solely on allegations that he “filed” oral
“complaints” with his employer; Saint-Gobain argued that
the retaliation provision protects only complaints that are
(1) in writing, and (2) made to judicial or administrative
2 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
SCALIA, J., dissenting
bodies. I agree with at least the second part of Saint-
Gobain’s contention. The plain meaning of the critical
phrase and the context in which appears make clear that
the retaliation provision contemplates an official grievance
filed with a court or an agency, not oral complaints—or
even formal, written complaints—from an employee to an
employer.
A
In isolation, the word “complaint” could cover Kasten’s
objection: It often has an expansive meaning, connoting
any “[e]xpression of grief, regret, pain . . . or resentment.”
Webster’s New International Dictionary 546 (2d ed. 1934)
(hereinafter Webster’s). But at the time the FLSA was
passed (and still today) the word when used in a legal
context has borne a specialized meaning: “[a] formal alle
gation or charge against a party, made or presented to the
appropriate court or officer.” Ibid. See also Cambridge
Dictionary of American English 172 (2000) (“a formal
statement to a government authority that you have a legal
cause to complain about the way you have been treated”);
3 Oxford English Dictionary 608 (2d ed. 1989) (“[a] state
ment or injury or grievance laid before a court or judicial
authority . . . for purposes of prosecution or of redress”).
There are several reasons to think that the word bears
its specialized meaning here. First, every other use of the
word “complaint” in the FLSA refers to an official filing
with a governmental body. Sections 216(b) and (c) both
state that the right to bring particular types of actions
“shall terminate upon the filing of a complaint” by the
Secretary of Labor, and §216(c) clarifies that the statute of
limitations begins running in actions to recover unpaid
wages “on the date when the complaint is filed.” These
provisions unquestionably use “complaint” in the narrow
legal sense. Identical words used in different parts of a
statute are presumed to have the same meaning absent
Cite as: 563 U. S. ____ (2011) 3
SCALIA, J., dissenting
contrary indication, IBP, Inc. v. Alvarez, 546 U. S. 21, 34
(2005); Sullivan v. Stroop, 496 U. S. 478, 484 (1990). It
is one thing to expand the meaning of “complaint” in
§215(a)(3) to include complaints filed with an agency
instead of a court; it is quite something else to wrench it
from the legal context entirely, to include an employee’s
objection to an employer.
Second, the word “complaint” appears as part of the
phrase “filed any complaint” and thus draws meaning
from the verb with which it is connected. The choice of the
word “filed” rather than a broader alternative like “made,”
if it does not connote (as the Seventh Circuit believed,
and as I need not consider) something in writing, at least
suggests a degree of formality consistent with legal action
and inconsistent (at least in the less regulated work envi
ronment of 1938) with employee-to-employer complaints.
It is noteworthy that every definition of the verb “filed”
that the Court’s opinion provides, whether it supports the
inclusion of oral content or not, envisions a formal, pre
scribed process of delivery or submission. Ante, at 4–5
(comparing, for example, Webster’s 945 (to file is to “de
liver (a paper or instrument) to the proper officer”) with 1
Funk & Wagnalls New Standard Dictionary of the English
Language 920 (rev. ed. 1938) (to file is to “present in the
regular way, as to a judicial or legislative body”)).
Moreover, “[t]he law uses familiar legal expressions in
their familiar legal sense,” Henry v. United States, 251
U. S. 393, 395 (1920). It is, I suppose, possible to speak of
“filing a complaint” with an employer, but that is assur
edly not common usage. Thus, when the antiretaliation
provision of the Mine Health and Safety Act used that
phrase in a context that includes both complaints to an
agency and complaints to the employer, it did not use
“filed” alone, but supplemented that with “or made”—and
to boot specified “including a complaint notifying the
[mine] operator . . . of an alleged danger or safety or health
4 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
SCALIA, J., dissenting
violation . . . .” 30 U. S. C. §815(c)(1).1
Third, the phrase “filed any complaint” appears along
side three other protected activities: “institut[ing] or
caus[ing] to be instituted any proceeding under or related
to this chapter,” “testif[ying] in any such proceeding,” and
“serv[ing] . . . on an industry committee.”2 29 U. S. C.
§215(a)(3). Since each of these three activities involves
an interaction with governmental authority, we can fairly
attribute this characteristic to the phrase “filed any com
plaint” as well. “That several items in a list share an
attribute counsel in favor of interpreting the other items
as possessing that attribute as well.” Beecham v. United
States, 511 U. S. 368, 371 (1994).
And finally, the 1938 version of the FLSA, while creat
ing private rights of action for other employer violations,
see §16(b), 52 Stat. 1069, did not create a private right of
action for retaliation. That was added in 1977, see §10, 91
Stat. 1252. Until then, only the Administrator of the
Wage and Hour Division of the Department of Labor could
enforce the retaliation provision. See §11(a), 52 Stat.
1066. It would seem more strange to require the employee
to go to the Administrator to establish, and punish retalia
tion for, his intracompany complaint, than to require the
Administrator-protected complaint to be filed with the
——————
1 Kasten and this Court’s opinion, ante, at 7, argue that the use of the
modifier “any” in the phrase “filed any complaint” suggests that Con
gress meant to define the word “complaint” expansively. Not so. The
modifier “any” does not cause a word that is in context narrow to
become broad. The phrase “to cash a check at any bank” does not refer
to a river bank, or even a blood bank.
2 Section 5 of the original FLSA, which has since been repealed,
charged industry committees with recommending minimum wages for
certain industries to the Department of Labor. 52 Stat. 1062. In order
to perform this function, industry committees were empowered, among
other things, to “hear . . . witnesses” and “receive . . . evidence.” §8(b),
id., at 1064.
Cite as: 563 U. S. ____ (2011) 5
SCALIA, J., dissenting
Administrator in the first place.3
B
1
The meaning of the phrase “filed any complaint” is clear
in light of its context, and there is accordingly no need
to rely on abstractions of congressional purpose. Never
theless, Kasten argues that protecting intracompany
complaints best accords with the purpose of the FLSA—“to
assure fair compensation to covered employees”—because
such purposes are “advanced when internal complaints
lead to voluntary compliance.” Reply Brief for Petitioner
18. But no legislation pursues its ends at all costs. Rodri
guez v. United States, 480 U. S. 522, 525–526 (1987) (per
curiam). Congress may not have protected intracompany
complaints for the same reason it did not provide a private
cause of action for retaliation against complaints: because
it was unwilling to expose employers to the litigation, or to
the inability to dismiss unsatisfactory workers, which that
additional step would entail. Limitation of the retaliation
provision to agency complaints may have been an attempt
“to achieve the benefits of regulation right up to the
point where the costs of further benefits exceed the value
of those benefits.” Easterbrook, Statutes’ Domains, 50
U. Chi. L. Rev. 533, 541 (1983).
2
In deciding whether an oral complaint may be “filed,”
the Court’s opinion examines modern state and federal
statutes, which presumably cover complaints filed with an
——————
3 Kasten argues that excluding intracompany complaints would make
the phrases “filed any complaint” and “instituted or caused to be
instituted any proceeding” redundant. That is not so. An employee
may file a complaint with the Administrator that does not result in a
proceeding, or has not yet done so when the employer takes its retalia
tory action.
6 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
SCALIA, J., dissenting
employer. The only relevance of these provisions to
whether the FLSA covers such complaints is that none of
them achieves that result by use of the term “filed any
complaint,” and all of them use language that unmistaka
bly includes complaints to employers. See, e.g., 42 U. S. C.
§2000e–3(a) (prohibiting retaliation against employees
who “oppos[e] any [unlawful] practice”). Any suggestion
that because more recent statutes cover intracompany
complaints, a provision adopted in the 1938 Act should be
deemed to do so is unacceptable. While the jurisprudence
of this Court has sometimes sanctioned a “living Constitu
tion,” it has never approved a living United States Code.
What Congress enacted in 1938 must be applied according
to its terms, and not according to what a modern Congress
(or this Court) would deem desirable.4
3
Kasten argues that this Court should defer to the De
partment of Labor and Equal Employment Opportunity
Commission’s (EEOC) interpretations of 29 U. S. C.
§215(a)(3). He claims that those agencies have construed
§215(a)(3) to protect intracompany complaints “[f]or al
most half a century,” in litigating positions and enforce
ment actions. Reply Brief for Petitioner 22. He also
argues that although the Department of Labor lacks the
authority to issue regulations implementing §215(a)(3), it
has such authority for several similarly worded provisions
and has interpreted those statutes to include intracom
pany complaints. Id., at 20.
Even were §215(a)(3) ambiguous, deference would still
——————
4 Moreover, if the substance of the retaliation provision of any other
Act could shed light upon what Congress sought to achieve in the
FLSA, it would be the relatively contemporaneous provision of the
National Labor Relations Act, §8(4), 49 Stat. 453, codified at 29 U. S. C.
§158(a)(4), which did not cover retaliation for employee-employer
complaints. See NLRB v. Scrivener, 405 U. S. 117 (1972).
Cite as: 563 U. S. ____ (2011) 7
SCALIA, J., dissenting
be unwarranted. If we are to apply our new jurisprudence
that deference is appropriate only when Congress has
given the agency authority to make rules carrying the
force of law, see Gonzales v. Oregon, 546 U. S. 243, 255–
256 (2006), deference is improper here. The EEOC has
no such authority. Although the Secretary of Labor and
his subordinates have authority to issue regulations
under various provisions of the FLSA, see, e.g., §203(l);
§206(a)(2), they have no general authority to issue regula
tions interpreting the Act, and no specific authority to
issue regulations interpreting §215(a)(3).
Presumably for this reason, the Court’s opinion seems to
suggest that only so-called Skidmore deference is appro
priate, see Skidmore v. Swift & Co., 323 U. S. 134, 140
(1944).5 This doctrine states that agencies’ views are
“ ‘entitled to respect’ ” to the extent they have “ ‘the power
to persuade.’ ” Christensen v. Harris County, 529 U. S.
576, 587 (2000) (quoting Skidmore, supra, at 140).6 For
——————
5 Or perhaps not. The actual quantum of deference measured out by
the Court’s opinion is unclear—seemingly intentionally so. The Court
says that it is giving “a degree of weight” to the Secretary and EEOC’s
views “given Congress’ delegation of enforcement powers to federal
administrative agencies.” Ante, at 12. But it never explicitly states the
level of deference applied, and includes a mysterious citation of United
States v. Mead Corp., 533 U. S. 218 (2001), along with a parenthetical
saying that “sometimes . . . judicial deference [is] intended even in [the]
absence of rulemaking authority.” Ante, at 13. I say this is mysterious
because Mead clearly held that rulemaking authority was necessary for
full Chevron deference, see Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984). I have chosen to interpret
the Court as referring to Skidmore deference, rather than Chevron
deference or something in-between, in order to minimize the Court’s
ongoing obfuscation of this once-clear area of administrative law. See
Mead, supra, at 245 (SCALIA, J., dissenting).
6 In my view this doctrine (if it can be called that) is incoherent, both
linguistically and practically. To defer is to subordinate one’s own
judgment to another’s. If one has been persuaded by another, so that
one’s judgment accords with the other’s, there is no room for deferral—
only for agreement. Speaking of “Skidmore deference” to a persuasive
8 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
SCALIA, J., dissenting
the reasons stated above, the agencies’ views here lack the
“power to persuade.”
II
The Court’s opinion claims that whether §215(a)(3)
covers intracompany complaints is not fairly included in
the question presented because the argument, although
raised below, was not made in Saint-Gobain’s response to
Kasten’s petition for certiorari. Citing this Court’s Rule
15.2 and Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13
(1996), the opinion says that this Court does “not normally
consider a separate legal question not raised in the certio
rari briefs.” Ante, at 15.
It regularly does so, however, under the circumstances
that obtain here. (Curiously enough, Caterpillar, the case
cited by the Court, was one instance.) Rule 15.2 is per
missive rather than mandatory: “Any objection to consid
eration of a question presented based on what occurred in
the proceedings below . . . may be deemed waived unless
called to the Court’s attention in the brief in opposition.”
(Emphasis added.) Accordingly, the Court has often per
mitted parties to defend a judgment on grounds not raised
in the brief in opposition when doing so is “predicate to an
intelligent resolution of the question presented, and there
fore fairly included therein.” Ohio v. Robinette, 519 U. S.
33, 38 (1996) (internal quotation marks omitted); see also
Vance v. Terrazas, 444 U. S. 252, 258–259, n. 5 (1980).
Kasten’s petition for certiorari phrases the question
presented as follows: “Is an oral complaint of a violation of
the Fair Labor Standards Act protected conduct under the
anti-retaliation provision, 29 U. S. C. §215(a)(3)?” Pet. for
Cert. i. Surely the word “complaint” in this question must
be assigned an implied addressee. It presumably does not
include a complaint to Judge Judy. And the only plausible
——————
agency position does nothing but confuse.
Cite as: 563 U. S. ____ (2011) 9
SCALIA, J., dissenting
addressee, given the facts of this case, is the employer.
Saint-Gobain’s rewording of the question presented in its
brief in opposition is even more specific: “Has an employee
alleging solely that he orally asserted objections to his
employer . . . ‘filed any complaint’ within the meaning of
[§215(a)(3)].” Brief in Opposition i (emphasis added).
Moreover, under this Court’s Rule 14.1(a), the question
presented is “deemed to comprise every subsidiary ques
tion fairly included therein.” Whether intracompany
complaints are protected is at least subsidiary to Kasten’s
formulation (and explicitly included in Saint-Gobain’s).
The question was also decided by the courts below and
was briefed before this Court. It is not clear what benefit
additional briefing would provide.
Moreover, whether §215(a)(3) covers intracompany
complaints is “predicate to an intelligent resolution of the
question presented” in this case. The Court’s own opinion
demonstrates the point. While claiming that it remains
an open question whether intracompany complaints are
covered, the opinion adopts a test for “filed any complaint”
that assumes a “yes” answer—and that makes no sense
otherwise. An employee, the Court says, is deemed to
have “filed [a] complaint” only when “ ‘a reasonable, objec
tive person would have understood the employee’ to have
‘put the employer on notice that the employee is asserting
statutory rights under the [Act].” Ante, at 12 (quoting Tr.
of Oral Arg. 23, 26). This utterly atextual standard is
obviously designed to counter the argument of Saint-
Gobain, that if oral complaints are allowed, “employers too
often will be left in a state of uncertainty about whether
an employee . . . is in fact making a complaint . . . or just
letting off steam.” Ante, at 11. Of course, if intracompany
complaints were excluded, this concern would be nonexis
tent: Filing a complaint with a judicial or administrative
body is quite obviously an unambiguous assertion of
one’s rights. There would be no need for lower courts to
10 KASTEN v. SAINT-GOBAIN PERFORMANCE
PLASTICS CORP.
SCALIA, J., dissenting
question whether a complaint is “sufficiently clear and de
tailed,” ante, at 12, carries the requisite “degree of formal
ity,” ante, at 11, or provides “fair notice,” ibid., whatever
those terms may require.
The test the Court adopts amply disproves its conten
tion that “we can decide the oral/written question sepa
rately,” ante, at 15. And it makes little sense to consider
that question at all in the present case if neither oral nor
written complaints to employers are protected, cf. United
States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006). This Court
should not issue an advisory opinion as to what would
have been the scope of a retaliation provision covering
complaints to employers if Congress had enacted such a
provision.