Kevin Kasten v. Saint-Gobain Performance Plast

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.
On Petition for Rehearing En Banc
S UBMITTED JULY 13, 2009—D ECIDED O CTOBER 15, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
K ANNE, R OVNER, W OOD , E VANS, W ILLIAMS, S YKES, and
T INDER, Circuit Judges.
On consideration of the petition for rehearing
with suggestion of rehearing en banc filed by the plain-
tiff-appellant and the answer of defendant-appellee,
2 No. 08-2820
Judge Bauer and Judge Flaum, the two circuit judges on the
original panel,Πvoted to deny rehearing and a majority of
the judges in active service voted to deny rehearing en
banc.
The petition for rehearing en banc is denied.
R OVNER, Circuit Judge, with whom W OOD and W ILLIAMS,
Circuit Judges, join, dissenting from the denial of rehearing
en banc. The court has adopted a construction of the
Fair Labor Standard Act’s anti-retaliation provision that
is unique among the circuits. On the one hand, the
court understands the statute’s “filed any complaint”
language to cover intra-company complaints about
unfair labor practices, but on the other it concludes that
oral complaints fall outside the reach of the statute.
Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d
834 (7th Cir. 2009). In deeming the statutory language to
reach only written and not oral complaints, the court
has taken a position contrary to the longstanding view of
the Department of Labor, departed from the holdings of
other circuits, and interpreted the statutory language in
Œ
The third judge on the original panel, District Judge Frederick
J. Kapala, did not participate in the petition for rehearing or the
petition for rehearing en banc.
No. 08-2820 3
a way that I believe is contrary to the understanding
of Congress.
Section 15(a)(3) of the Fair Labor Standard Act (“FLSA”)
makes it unlawful for an employer “to discharge or in any
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 committee.” 29 U.S.C. § 215(a)(3) (emphasis
mine). As the Equal Employment Opportunity Commis-
sion and the Department of Labor point out, a number of
other statutes have anti-retaliation provisions containing
language that is similar if not identical to this text. See 29
U.S.C. § 660(c)(1) (Occupational Safety and Health Act)
(proscribing retaliation against “any employee because
such employee has filed any complaint . . . under or
related to this chapter . . .”); 29 U.S.C. § 1855(a) (Migrant
and Seasonal Agricultural Worker Protection Act) (pro-
scribing retaliation against worker who “has, with just
cause, filed any complaint . . . under or related to this
chapter . . .”); 33 U.S.C. § 1367(a) (Clean Water Act) (pro-
scribing retaliation against employee who “has filed,
instituted, or caused to be filed or instituted any pro-
ceeding under this chapter”); 42 U.S.C. 6971(a) (Solid
Waste Disposal Act) (proscribing retaliation against any
employee who “has filed, instituted, or caused to be
filed or instituted any proceeding under this chapter . . .”).
The court’s understanding of what the FLSA’s “filed any
complaint” language means portends a similar construc-
tion of those other statutes.
4 No. 08-2820
These anti-retaliation provisions play a vital role in
protecting the workplace rules that Congress has adopted.
They serve to protect not just the individual worker, but
the means by which federal agencies become aware of
unlawful labor practices. As the Supreme Court has
observed with respect to section 15(a)(3) of the FLSA:
For weighty practical and other reasons, Congress did
not seek to secure compliance with prescribed stan-
dards through continuing detailed supervision or
inspection of payrolls. Rather, it chose to rely on
inform at ion and com plaints received from
employees seeking to vindicate rights claimed to
have been denied. Plainly, effective enforcement
could thus only be expected if employees felt free
to approach officials with their grievances. This ends
the prohibition of § 15(a)(3) against discharges and
other discriminatory practices was designed to serve.
For it needs no argument to show that fear of economic
retaliation might often operate to induce aggrieved
employees quietly to accept substandard conditions.
By the proscription of retaliatory acts set forth in
§ 15(a)(3), and its enforcement in equity by the Secre-
tary [of Labor] in section 17, Congress sought to
foster a climate in which compliance with the sub-
stantive provisions of the Act would be enhanced.
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80
S. Ct. 332, 335 (1960) (citation omitted).
The court in this case rightly concluded that “filed any
complaint” reaches complaints that an employee makes
to his employer. 570 F.3d at 837-38. Nothing in the
No. 08-2820 5
statute suggests that the complaint must be made exter-
nally to an administrative or judicial body in order to
qualify for protection. On the contrary, reference to “any
complaint” counsels in favor of a broad understanding
that encompasses both internal and external complaints.
See, e.g., Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41 (1st
Cir. 1999). As the court noted, this is the understanding
adopted by the “vast majority” of the circuits. 570 F.3d
at 838; see Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 625-
26 (5th Cir. 2008); Moore v. Freeman, 355 F.3d 558, 562-63
(6th Cir. 2004); Lambert v. Ackerley, 180 F.3d 997, 1003-07
(9th Cir. 1999) (en banc); Valerio, 173 F.3d at 41-44; Conner
v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997);
EEOC v. White & Son Enters., 881 F.2d 1006, 1011-12 (11th
Cir. 1989); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179,
181-82 (8th Cir. 1975); contra Whitten v. City of Easley, 62
Fed. Appx. 477, 480 (4th Cir. 2003) (unpublished); Lambert
v. Genesee Hosp., 10 F.3d 46, 55-56 (2d Cir. 1993). But the
court went on to conclude that the use of the term “filed”
suggests that a complaint must be written in order to
come within the statute’s protection. 570 F.3d at 838-40.
“[T]he natural understanding of the phrase ‘file any
complaint’ requires the submission of some writing to
an employer, court, or administrative body.” Id. at 839.
For that reason, the court rejected the multiple deci-
sions from other circuits recognizing that oral as well as
written complaints are protected by the statute. See Lam-
bert, 180 F.3d at 1008; EEOC v. Romeo Cmty. Sch., 976
F.2d 985, 989-90 (6th Cir. 1992); White & Son Enters., 881
F.2d at 1011-12; Marshall v. Parking Co. of Am.-Denver, Inc.,
670 F.2d 141, 142-43 (10th Cir. 1982); Maxey’s Yamaha, 513
6 No. 08-2820
F.2d at 181-82; see also Hagan, 529 F.3d at 626 (assuming
that objections voiced orally to management regarding
work schedule change that decreased overtime pay
might be protected by FLSA, but concluding that
because objections were framed in personal terms
rather than in terms of potential illegality were beyond
scope of statute); Brock v. Richardson, 812 F.2d 121, 123-25
& n.2 (3d Cir. 1987) (employer’s decision to discharge
plaintiff based on mistaken belief that she had filed
complaint, when in fact she had only spoken with agency
investigator, was prohibited by FLSA).1 It also rejected
what has been the Department of Labor’s view for nearly
fifty years. See Goldberg v. Zenger, 43 Lab. Cas. (CCH)
¶ 31,155, at 40,986 (D. Utah 1961) (DOL action on behalf
of employee who cooperated with agency’s investigation
and insisted that employer pay him back wages in lump
sum rather than installments).
1
A number of district courts in this circuit have taken a similar
view. See Ergo v. Int’l Merchant Servs., Inc., 519 F. Supp. 2d 765,
778-79 (N.D. Ill. 2007) (Leinenweber, J.); Hernandez v. City
Wide Insulation of Madison, Inc., 508 F. Supp. 2d 682, 689-90, 692
(E.D. Wis. 2007) (Adelman, J.); Skelton v. Am. Intercont’l Univ.
Online, 382 F. Supp. 2d 1068, 1076 (N.D. Ill. 2005) (Kennelly, J.);
DeGrange v. Richard Wolf Medical Instruments Corp., 141 Lab. Cas.
(CCH) ¶ 34,147, 2000 WL 1368043, at *2-*3 (N.D. Ill. Sep. 15,
2000) (Guzmán, J.); Wittenberg v. Wheels, Inc., 963 F. Supp. 654,
658-60 (N.D. Ill. 1997) (Coar, J.); Cuevas v. Monroe Street City
Club, 752 F. Supp. 1405, 1412-13 (N.D. Ill. 1990) (Shadur, J.);
see also Wilke v. Salamone, 404 F. Supp. 2d 1040, 1047-48
(N.D. Ill. 2005) (Moran, J.) (deliberate failure to show up for
work that employees knew would be uncompensated was
protected).
No. 08-2820 7
Although I agree that the term “to file” often connotes
(particularly for lawyers) the submission of a document,
it is by no means out of the ordinary to read and hear
the term used in conjunction with oral complaints; in
that sense, “to file” is used more broadly to signify the
making of a report or the lodging of a protest. Thus, the
notion that one can “file” an oral complaint or grievance
is reflected in any number of federal opinions and reg-
ulations. See, e.g., NLRB v. Sw. Elec. Co-op., Inc., 794 F.2d
276, 279 (7th Cir. 1986) (sustaining NLRB’s finding that
collective bargaining agreement included “the right to
file oral grievances”); United States v. Bent, 702 F.2d 210,
212 (11th Cir. 1983) (“Before trial appellant orally filed
a motion for a jury trial, which the court denied.”); Ward
v. Housatonic Area Reg’l Transit Dist., 154 F. Supp. 2d 339,
351 (D. Conn. 2001) (“Clearly, any written or oral com-
plaints that Wa[rd] filed with HART were protected
speech . . . .”); Rallis v. Holiday Inns, Inc., 622 F. Supp. 63, 65
(N.D. Ill. 1985) (“Plaintiffs’ complaint alleges that their
grievances were ignored after they had filed more than
20 oral and written grievances over an eight year period
of time.”); 42 C.F.R. 438.402(b)(3) (specifying that certain
managed care entities and insurance plans must have
grievance procedures that permit enrollee to “file a griev-
ance either orally or in writing” and to “file an appeal
either orally or in writing”); cf. 14 C.F.R. 1.1 (defining
“flight plan” to mean information about intended flight
path “that is filed orally or in writing with air traffic
control”). These examples (and there are many others)
put to rest the notion that filing a complaint invariably
means filing a written complaint.
8 No. 08-2820
At the same time, it is noteworthy that Congress in
many other statutes has specifically required written
complaints. See, e.g., 2 U.S.C. § 437g(a)(1) (Federal
Election Campaign Act) (“Any person who believes a
violation of this Act . . . has occurred, may file a com-
plaint . . . . Such complaint shall be in writing . . . .”);
5 U.S.C. § 3330a(a)(1)(A) & (a)(2)(B) (Veterans Em-
ployment Opportunities Act) (preference-eligible veteran
who believes agency has violated his or her rights may
file complaint; “[s]uch complaint shall be in writing . . .”);
7 U.S.C. § 193(a) (Packers and Stockyards Act) (whenever
the Secretary of Agriculture believes a packer or swine
contractor is committing violations, “he shall cause a
complaint in writing to be served upon the packer or
swine contractor, stating his charges in that respect . . .”);
7 U.S.C. § 228b-2(a) (same—poultry dealers); 7 U.S.C.
§ 1599(a) (Federal Seed Act) (same—seed and grain
handlers); 19 U.S.C. § 2561(a) (Trade Agreements Act)
(federal agency may not consider a complaint unless the
Trade Representative informs the agency concerned “in
writing”); 38 U.S.C. § 4322(a) & (b) (Uniformed Services
Employment and Reemployment Act) (person claiming
violation of right to employment or reemployment as
veteran may file complaint; “[s]uch complaint shall be
in writing. . .”); 42 U.S.C. § 2000b(a) (Civil Rights Act of
1964) (public accommodations) (“Whenever the Attorney
General receives a complaint in writing . . . the Attorney
General is authorized to institute for or in the name of
the United States a civil action . . . .”); 42 U.S.C. § 2000c-6(a)
(same—public education); 42 U.S.C. § 3610(a)(1)(A)(i) & (ii)
(Fair Housing Act) (person aggrieved by discriminatory
No. 08-2820 9
housing practice may file complaint with Secretary of
Housing and Urban Development, and Secretary may
also file complaint; “[s]uch complaints shall be in
writing . . . ”); 42 U.S.C. § 15512(a)(2)(C) (Help America
Vote Act) (“Any complaint filed under the procedures
shall be in writing and notarized, . . . .”); 47 U.S.C. § 554(g)
(Cable Communications Policy Act) (complaint by em-
ployee or applicant for employment who believes he or
she was victim of discrimination by cable operator “shall
be in writing, and shall be signed and sworn to by that
person”); 49 U.S.C. § 46101(a)(1) (Federal Aviation Act)
(“[a] person may file a complaint in writing” for violation
of the Act or its implementing rules and regulations).
These statutes suggest that when Congress means to
require that complaints take a written form, it sets forth
that requirement expressly. See, e.g., Whitfield v. United
States, 543 U.S. 209, 216-17, 125 S. Ct. 687, 692 (2005).
Our own previous opinions in Sapperstein v. Hager, 188
F.3d 852 (7th Cir. 1999), and Avitia v. Metropolitan Club
of Chicago, Inc., 49 F.3d 1219 (7th Cir. 1995), arguably
reflect an understanding of the statutory language that
reaches oral as well as written complaints: Sapperstein
equated the “file any complaint” language with reporting
a potential violation of the statute, see 188 F.3d at 857, an
act which may be accomplished orally as well as by
writing, and Avitia cited an employee’s oral statement to
a Department of Labor auditor as protected conduct,
49 F.3d at 1223-24.
Conditioning the protection of the statute on the sub-
mission of a written complaint may well mean that ag-
10 No. 08-2820
grieved employees will be treated differently based on
happenstance. An employee who schedules a meeting
with a human resources manager to discuss the denial
of overtime pay will not be protected, no matter how
detailed and unequivocal the oral complaint may be,
while an employee who cannot catch the manager in
her office and instead leaves her a handwritten note or
sends her an e-mail to communicate the same sort of
complaint will be protected. I submit that the focus is
more appropriately on whether the complaining employee
has communicated the substance of his concerns to the
employer rather than on whether the communication
was written. See Lambert, 180 F.3d at 1008. In this way a
court can distinguish between statements that are made
in furtherance of an employee’s statutory rights from
those that amount to no more than vague, “abstract
grumblings.” Id. at 1007 (citing Valerio, 173 F.3d at 44).
It also bears pointing out that nothing in the court’s
holding or rationale limits its narrow construction of the
statutory language to intra-company complaints. The
court’s decision that only written complaints are pro-
tected presumably would apply to an employee’s
external contacts with regulatory officials. See 570 F.3d at
839. Yet, other courts have understood the statute to
reach oral contacts with an agency as well as oral co-
operation with agency auditors. See, e.g., Daniel v. Winn-
Dixie Atlanta, Inc., 611 F. Supp. 57, 59 (N.D. Ga. 1985)
(employee’s phone call to Department of Labor’s Wage
and Hour Division to inquire whether employer could
lawfully deny her overtime compensation was protected
by section 215(a)(3); otherwise, “an employee who con-
No. 08-2820 11
sulted, but did not file a complaint with, W&H and who
informed her employer first would not be protected as
long as the employer fired her before she actually could
file a complaint”); Prewitt v. Factory Motor Parts, Inc., 747
F. Supp. 560, 563-64 (W.D. Mo. 1990) (telephone call to
Wage and Hour Division to inquire whether employer’s
new salary plan and work schedule were lawful was
protected by section 215(a)(3); “[a] prerequisite to an
employee knowing whether to file a complaint is
having information about whether an employer’s
actions may violate the FLSA”); see also Avitia, supra,49 F.3d at 1223-24 (finding evidence sufficient to
support finding of retaliation against employee who
was fired after he told Department of Labor auditor that
he had worked overtime without being compensated at
statutory overtime rate of one and one-half times his
regular hourly pay). By departing from such decisions,
the court has left protected by the statute only those
interactions with agency representatives that take place
in written form, notwithstanding the fact that oral com-
munications are just as essential to an employee at-
tempting to ascertain her rights and to the Department of
Labor in discovering potential violations of the FLSA, and
notwithstanding the likelihood that an employer bent
on keeping its practices out of view of the regulators
might be just as likely to penalize an employee for her
oral contacts with the agency as it would any written
contacts.
It was precisely these type of inconsistencies that the
Supreme Court sought to avoid in NLRB v. Scrivener, 405
U.S. 117, 92 S. Ct. 798 (1972), where it construed the anti-
12 No. 08-2820
retaliation provision of the National Labor Relation Act
(“NLRA”), which uses language similar to that of the
FLSA. See Rutherford Food Corp. v. McComb, 331 U.S. 722,
723-24, 67 S. Ct. 1473, 1473-74 (1947) (noting that decisions
interpreting coverage of NLRA have persuasive force as to
coverage of FLSA). Section 8(a)(4) of the NLRA makes it
an unlawful practice for an employer “to discharge or
otherwise discriminate against an employee because he
has filed charges or given testimony under this sub-
chapter.” 29 U.S.C. § 158(a)(4) (emphasis supplied). In
Scrivener, four employees were fired after they were
interviewed by and gave sworn written statements to a
National Labor Relations Board (“NLRB”) field examiner
investigating charges of unfair labor practices that had
been filed against their employer. None of the discharged
employees had themselves filed charges with the NLRB
prior to their discharge; they had simply given evidence
to the field examiner. The NLRB concluded that the
discharges were in violation of section 8(a)(4), 177 N.L.R.B.
504 (1969), but the Eighth Circuit disagreed, concluding
that the statute did not prohibit retaliation against an
employee who has done nothing more than give a
written statement to a field examiner. 435 F.2d 1296 (1971)
(per curiam). The Supreme Court sided with the NLRB.
“Construing § 8(a)(4) to protect the employee during
the investigative stage, as well as in connection with the
filing of a formal charge or the giving of formal testimony,
comports with the objective of that section,” the Court
noted at the outset. 405 U.S. at 121, 92 S. Ct. at 801. “ ‘Con-
gress made it clear that it wishes all persons with infor-
mation about such [illegal] practices to be completely
No. 08-2820 13
free from coercion against reporting them to the Board.’ ”
Ibid. (quoting Nash v. Fla. Indus. Comm’n, 389 U.S. 235,
238, 88 S. Ct. 362, 365 (1967)). Having in mind “the
practicalities of appropriate agency action,” id. at 123, 92
S. Ct. at 802, the Court did not think it was logical to
protect an employee who has filed a charge or given
testimony in an agency proceeding, but not one who
has participated in the necessary steps leading up to the
filing and prosecution of a charge:
An employee who participates in a Board investi-
gation may not be called formally to testify or may
be discharged before any hearing at which he
could testify. His contribution might be merely cumu-
lative or the case may be settled or dismissed
before hearing. Which employees receive statutory
protection should not turn on the vagaries of the
selection process or on other events that have no
relation to the need for protection. It would make
less than complete sense to protect the employee
because he participates in the formal inception of the
process (by filing a charge) or in the final, formal
presentation, but not to protect his participation in
the important developmental stages that fall between
these two points in time. This would be unequal and
inconsistent protection and is not the protection
needed to preserve the integrity of the Board process
in its entirety.
Id. at 123-24, 92 S. Ct. at 802 (footnote omitted). The Court
thus concluded that the discharge of the four employees
constituted actionable retaliation under the NLRA, not-
14 No. 08-2820
withstanding the fact that none of the employees had
actually filed a charge or given testimony. Id. at 125, 92
S. Ct. at 803.
We would do well to heed the logic and warnings of
both Robert DeMario Jewelry and Scrivener in construing
the reach of FLSA. Congress has designed a scheme
in which individual employees play a crucial role in
identifying potential violations of the FLSA and bringing
them to the attention of the Department of Labor. Robert
DeMario Jewelry, 361 U.S. at 292, 80 S. Ct. at 335. This
court’s decision that an employee’s intra-company com-
plaint is protected by section 15(a)(3) pays appropriate
homage to that role by extending the statute’s reach to
the earliest opportunity that an employee has to assert
his statutory rights—in the workplace, with his em-
ployer. Although the employee has filed nothing and
testified to nothing at that point in time, he has none-
theless taken the first step toward the vindication of
his rights. If he is penalized for taking that step, he (and
his co-workers) might well take no other. That is why, as
Scrivener explains, it is necessary to construe phrases
like “filed charges” or “filed any complaint” liberally to
include not only those ultimate acts but all of the neces-
sary preceding steps that culminate in those acts. 405
U.S. at 123-24, 92 S. Ct. at 802. And that is why, in my
view, it makes “less than complete sense” to draw a
distinction between an employee’s written and oral
assertions of his rights. See id. at 124, 92 S. Ct. at 802. As
the cases make clear, virtually any step that an em-
ployee may take in pursuit of his rights prior to filing a
complaint with the Department of Labor—e.g., inquiring
No. 08-2820 15
into his rights, questioning the legality of his wages
and hours, or cooperating with a Department of Labor
investigation—he may do by way of the spoken as well
as the written word. Oral inquiries, protests, and infor-
mation supplied to an agency representative play no
less an important role in the statutory scheme than do
letters, e-mails, and sworn statements. They must be
protected as well.
For these reasons, I believe this case warrants further
consideration by the full court, and I respectfully
dissent from denial of rehearing en banc.
10-15-09