Update on Retaliation Claims

Kasten then filed suit against Saint-Gobain, alleging retaliatory termination in violation of the FLSA. Kasten asserted that, during the period in which he was receiving disciplinary warnings concerning his alleged failure to use the time clocks properly, he had made numerous oral complaints to his supervisors and to Human Resources, saying that the location of the time clocks was illegal. The alleged illegality stemmed from the fact that, in Kasten's view, the location of the time clocks prevented employees, including himself, from being paid for the time they spent donning and doffing their required gear. 2009 U.S. App. LEXIS 13913, at *3. Kasten further alleged that, in addition to complaining that the time clocks' location was illegal, he also had advised his supervisors and Human Resources on multiple occasions that he was considering filing a lawsuit concerning the location of the time clocks and that he believed Saint-Gobain would lose such a lawsuit. 2009 U.S. App. LEXIS 13913, at *3-4. Saint-Gobain denied that Kasten had made any of the alleged oral complaints to his supervisors or to Human Resources.

On Saint-Gobain's motion for summary judgment, the district court dismissed Kasten's FLSA retaliation claim. Kasten v. Saint-Gobain Performance Plastics Corp., 2008 U.S. Dist. LEXIS 47686 (D. Minn. June 18, 2008). The district court held that, although intra-company complaints can constitute “protected activity” under the FLSA if they are in writing and are in fact “filed,” according to the language of ' 215(a)(3), unwritten verbal complaints cannot constitute “protected activity” because, by definition, an oral complaint cannot be “filed.” 2008 U.S. Dist. LEXIS 47686, at *10, 11. The district court acknowledged the remedial purposes of the FLSA and the consequent need to give a broad interpretation to its terms, but nonetheless observed that it was not free to ignore the statutory language of ' 215(a)(3) of the FLSA, which requires a “fil[ing].” 2008 U.S. Dist. LEXIS 47686, at *11-12. The district court thus concluded that Kasten's alleged oral complaints in this case were, at most, “abstract grumbling” or “amorphous expression[s] of discontent.” 2008 U.S. Dist. LEXIS 47686, at *12 (citations omitted). Because the plaintiff had engaged in no protected activity under the FLSA, the district court granted summary judgment.

Plaintiff's Appeal

On plaintiff's appeal, the Seventh Circuit affirmed, after considering the two issues that the district court had addressed: 1) whether intra-company complaints can rise to the level of “protected activity” under the FLSA; and 2) whether purely oral complaints may be deemed “protected activity” under the statute. As to the first issue, which was an issue of first impression in the Seventh Circuit, the appellate court held that the plain language of the statute indicated that the FLSA protects employees who make strictly internal complaints. 2009 U.S. App. LEXIS 13913, at *7-8. The court noted the breadth of the term “any complaint” and the absence of any qualifying language that required the employee to have complained in court or with an agency. Moreover, the court made reference to the fact that, of the numerous courts of appeals that have addressed this issue, only the Fourth Circuit had rejected the proposition that purely internal complaints were “protected activity” under the FLSA. 2009 U.S. App. LEXIS 13913, at *8-9 (citing Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363-65 (4th Cir. 2000)).

As to the second issue ' whether purely oral complaints could be deemed “protected activity” under ' 215(a)(3) of the FLSA ' the court again focused on the plain language of the key statutory provision: “filed any complaint.” Rejecting Kasten's argument that “filed” means “submitted,” the Seventh Circuit invoked the dictionary definition of “file,” which “connotes the use of a writing.” 2009 U.S. App. LEXIS 13913, at *10. The court further observed that the “natural” meaning of “file,” as it would likely be understood in common conversation, suggestion the submission of a writing, not merely an oral statement. 2009 U.S. App. LEXIS 13913, at *11.

In so holding, the Seventh Circuit also rejected the interpretation of the term “file” that was suggested by the Secretary of Labor, who had appeared as amicus curiae in support of the plaintiff on appeal. The Secretary of Labor argued that the statutory language ' “file any complaint” ' did not clearly require a written complaint and, accordingly, that the court should defer to the Secretary's interpretation, which would protect both oral and written complaints. 2009 U.S. App. LEXIS 13913, at *11 n.2. Because the Seventh Circuit characterized the Secretary's interpretation as a mere “litigating position,” as opposed to a rule, regulation or administrative practice, it held that such interpretation was not entitled to deference.

Moreover, the Seventh Circuit surveyed the varying decisions of other federal circuit courts on the issue of whether ' 215(a)(3) required a written complaint or permitted an oral complaint. Specifically, the Seventh Circuit highlighted the Fourth and Second Circuits' rulings that mere verbal complaints about wage practices to supervisors did not rise to the level of “fil[ing] any complaint” under the FLSA. 2009 U.S. App. LEXIS 13913, at *12-13 (citing Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363-65 (4th Cir. 2000), and Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2nd Cir. 1993)). The Kasten court further noted that several other circuit courts of appeals ' specifically, the Sixth, Eighth, and Eleventh Circuits ' appeared to have held that purely oral complaints may be deemed a “fil[ing]” under ' 215(a)(3), but the cases themselves were not clear as to whether the underlying complaint had been written or oral. 2009 U.S. App. LEXIS 13913, at *13-14. The court also took issue with the plaintiff's and Secretary of Labor's reliance on decisions in the Ninth and Tenth Circuits that had held broadly that informal complaints to the employer sufficed for purposes of the FLSA. Those cases, reasoned the Seventh Circuit, had involved written complaints, and so the courts' broad dicta was not instructive. 2009 U.S. App. LEXIS 13913, at *14 n.3.

Finally, the Seventh Circuit compared the language of ' 215(a)(3) with the anti-retaliation provisions in Title VII, 42 U.S.C. ' 2000e-3(a), and the Age Discrimination in Employment Act, 29 U.S.C. ' 623(d) (“ADEA”), which both include the broad language “opposed any practice.” 2009 U.S. App. LEXIS 13913, at *12-15. Courts have widely interpreted the “opposition” clauses of these statutes, which contain no reference to the “fil[ing]” of a complaint, to encompass both verbal and written complaints. The more narrow language of the FLSA's anti-retaliation provision thus supports interpreting it to have a more narrow scope.

Broad Interpretation

Like the district court below, the Seventh Circuit affirmatively noted that, as a remedial statute, the FLSA must be interpreted broadly, but only in a way that is consistent with the statutory language, which, the court held, cannot be ignored. 2009 U.S. App. LEXIS 13913, at *15-16. The court, therefore, dismissed Kasten's retaliatory discharge claim and entered judgment in favor of Saint-Gobain.

The conclusion of this article will discuss whether the Kasten decision is consistent with Supreme Court case law, its practical significance and other federal anti-discrimination statutes.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors, leads Day Pitney's Employment Litigation practice group. She has significant trial experience, representing clients across New England in state and federal court and in arbitration. She also has an appellate practice and has argued appeals in the First and Second Circuits and in the Connecticut Supreme Court.

If an employee orally complains to a supervisor about the employer's wage practices, which he believes violate the Fair Labor Standards Act (“FLSA”), has the employee engaged in protected activity that may form the predicate to a claim of retaliation under the FLSA? The Seventh Circuit recently answered this question in the negative in Kasten v. Saint-Gobain Performance Plastics Corp., 2009 U.S. App. LEXIS 13913 (7th Cir. June 29, 2009). The court so held because the employee's strictly oral complaints about allegedly improper wage practices did not implicate the FLSA's prohibition of retaliation against those who have “filed any complaint.” 29 U.S.C. ' 215(a)(3) (emphasis added). In light of this holding, members of both the plaintiff's and defense bar are now asking: if the Seventh Circuit got it right in Kasten, what is the practice impact of the decision, and what is the viability, under other federal anti-discrimination statutes, of retaliation claims that are predicated solely on employees' oral complaints of allegedly illegal conduct by employers?

The Kasten Decision

The Kasten case arose when Kevin Kasten, a non-exempt employee of the defendant Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”), received a series of disciplinary warnings regarding his failure to use the company's time clocks to punch in and out properly. 2009 U.S. App. LEXIS 13913, at *2-4. Specifically, Saint-Gobain issued a verbal warning, followed by a written warning, followed by another written warning that also involved a one-day suspension, all relating to Kasten's alleged failure to use the time clocks properly. After a fourth alleged incident of Kasten's failure to punch in and out properly, the company suspended him again and, several days later, terminated his employment. 2009 U.S. App. LEXIS 13913, at *4.

Kasten then filed suit against Saint-Gobain, alleging retaliatory termination in violation of the FLSA. Kasten asserted that, during the period in which he was receiving disciplinary warnings concerning his alleged failure to use the time clocks properly, he had made numerous oral complaints to his supervisors and to Human Resources, saying that the location of the time clocks was illegal. The alleged illegality stemmed from the fact that, in Kasten's view, the location of the time clocks prevented employees, including himself, from being paid for the time they spent donning and doffing their required gear. 2009 U.S. App. LEXIS 13913, at *3. Kasten further alleged that, in addition to complaining that the time clocks' location was illegal, he also had advised his supervisors and Human Resources on multiple occasions that he was considering filing a lawsuit concerning the location of the time clocks and that he believed Saint-Gobain would lose such a lawsuit. 2009 U.S. App. LEXIS 13913, at *3-4. Saint-Gobain denied that Kasten had made any of the alleged oral complaints to his supervisors or to Human Resources.

On Saint-Gobain's motion for summary judgment, the district court dismissed Kasten's FLSA retaliation claim. Kasten v. Saint-Gobain Performance Plastics Corp., 2008 U.S. Dist. LEXIS 47686 (D. Minn. June 18, 2008). The district court held that, although intra-company complaints can constitute “protected activity” under the FLSA if they are in writing and are in fact “filed,” according to the language of ' 215(a)(3), unwritten verbal complaints cannot constitute “protected activity” because, by definition, an oral complaint cannot be “filed.” 2008 U.S. Dist. LEXIS 47686, at *10, 11. The district court acknowledged the remedial purposes of the FLSA and the consequent need to give a broad interpretation to its terms, but nonetheless observed that it was not free to ignore the statutory language of ' 215(a)(3) of the FLSA, which requires a “fil[ing].” 2008 U.S. Dist. LEXIS 47686, at *11-12. The district court thus concluded that Kasten's alleged oral complaints in this case were, at most, “abstract grumbling” or “amorphous expression[s] of discontent.” 2008 U.S. Dist. LEXIS 47686, at *12 (citations omitted). Because the plaintiff had engaged in no protected activity under the FLSA, the district court granted summary judgment.

Plaintiff's Appeal

On plaintiff's appeal, the Seventh Circuit affirmed, after considering the two issues that the district court had addressed: 1) whether intra-company complaints can rise to the level of “protected activity” under the FLSA; and 2) whether purely oral complaints may be deemed “protected activity” under the statute. As to the first issue, which was an issue of first impression in the Seventh Circuit, the appellate court held that the plain language of the statute indicated that the FLSA protects employees who make strictly internal complaints. 2009 U.S. App. LEXIS 13913, at *7-8. The court noted the breadth of the term “any complaint” and the absence of any qualifying language that required the employee to have complained in court or with an agency. Moreover, the court made reference to the fact that, of the numerous courts of appeals that have addressed this issue, only the Fourth Circuit had rejected the proposition that purely internal complaints were “protected activity” under the FLSA. 2009 U.S. App. LEXIS 13913, at *8-9 (citing Ball v. Memphis Bar-B-Q Co. , 228 F.3d 360, 363-65 (4th Cir. 2000)).

As to the second issue ' whether purely oral complaints could be deemed “protected activity” under ' 215(a)(3) of the FLSA ' the court again focused on the plain language of the key statutory provision: “filed any complaint.” Rejecting Kasten's argument that “filed” means “submitted,” the Seventh Circuit invoked the dictionary definition of “file,” which “connotes the use of a writing.” 2009 U.S. App. LEXIS 13913, at *10. The court further observed that the “natural” meaning of “file,” as it would likely be understood in common conversation, suggestion the submission of a writing, not merely an oral statement. 2009 U.S. App. LEXIS 13913, at *11.

In so holding, the Seventh Circuit also rejected the interpretation of the term “file” that was suggested by the Secretary of Labor, who had appeared as amicus curiae in support of the plaintiff on appeal. The Secretary of Labor argued that the statutory language ' “file any complaint” ' did not clearly require a written complaint and, accordingly, that the court should defer to the Secretary's interpretation, which would protect both oral and written complaints. 2009 U.S. App. LEXIS 13913, at *11 n.2. Because the Seventh Circuit characterized the Secretary's interpretation as a mere “litigating position,” as opposed to a rule, regulation or administrative practice, it held that such interpretation was not entitled to deference.

Moreover, the Seventh Circuit surveyed the varying decisions of other federal circuit courts on the issue of whether ' 215(a)(3) required a written complaint or permitted an oral complaint. Specifically, the Seventh Circuit highlighted the Fourth and Second Circuits' rulings that mere verbal complaints about wage practices to supervisors did not rise to the level of “fil[ing] any complaint” under the FLSA. 2009 U.S. App. LEXIS 13913, at *12-13 (citing Ball v. Memphis Bar-B-Q Co. , 228 F.3d 360, 363-65 (4th Cir. 2000), and Lambert v. Genesee Hosp. , 10 F.3d 46, 55 (2nd Cir. 1993)). The Kasten court further noted that several other circuit courts of appeals ' specifically, the Sixth, Eighth, and Eleventh Circuits ' appeared to have held that purely oral complaints may be deemed a “fil[ing]” under ' 215(a)(3), but the cases themselves were not clear as to whether the underlying complaint had been written or oral. 2009 U.S. App. LEXIS 13913, at *13-14. The court also took issue with the plaintiff's and Secretary of Labor's reliance on decisions in the Ninth and Tenth Circuits that had held broadly that informal complaints to the employer sufficed for purposes of the FLSA. Those cases, reasoned the Seventh Circuit, had involved written complaints, and so the courts' broad dicta was not instructive. 2009 U.S. App. LEXIS 13913, at *14 n.3.

Finally, the Seventh Circuit compared the language of ' 215(a)(3) with the anti-retaliation provisions in Title VII, 42 U.S.C. ' 2000e-3(a), and the Age Discrimination in Employment Act, 29 U.S.C. ' 623(d) (“ADEA”), which both include the broad language “opposed any practice.” 2009 U.S. App. LEXIS 13913, at *12-15. Courts have widely interpreted the “opposition” clauses of these statutes, which contain no reference to the “fil[ing]” of a complaint, to encompass both verbal and written complaints. The more narrow language of the FLSA's anti-retaliation provision thus supports interpreting it to have a more narrow scope.

Broad Interpretation

Like the district court below, the Seventh Circuit affirmatively noted that, as a remedial statute, the FLSA must be interpreted broadly, but only in a way that is consistent with the statutory language, which, the court held, cannot be ignored. 2009 U.S. App. LEXIS 13913, at *15-16. The court, therefore, dismissed Kasten's retaliatory discharge claim and entered judgment in favor of Saint-Gobain.

The conclusion of this article will discuss whether the Kasten decision is consistent with Supreme Court case law, its practical significance and other federal anti-discrimination statutes.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors, leads Day Pitney's Employment Litigation practice group. She has significant trial experience, representing clients across New England in state and federal court and in arbitration. She also has an appellate practice and has argued appeals in the First and Second Circuits and in the Connecticut Supreme Court.