Kasten v. Saint-Gobain Performance Plastics Corp.

585 F.3d 310

Kevin KASTEN, Plaintiff-Appellant, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant-Appellee.

No. 08-2820.

United States Court of Appeals, Seventh Circuit.

Submitted July 13, 2009.

Decided October 15, 2009.

Appeal from the United States District Court for the Western District of Wisconsin. No. 07-C-0686—Barbara B. Crabb, Chief Judge.

James H. Kaster, Minneapolis, MN, for Plaintiff-Appellant.

Anthony J. Sievert, Whyte, Hirschboeck & Dudek S.C., Madison, WI, Thomas P. Godar, Michael Best & Friedrich, Milwaukee, WI, for Defendant-Appellee.

Mary J. Rieser, Department of Labor, Office of the Solicitor, Washington, DC, for Amicus Curiae.

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, EVANS WILLIAMS, SYKES, and TINDER, Circuit Judges.

On Petition for Rehearing En Banc

On consideration of the petition for rehearing with suggestion of rehearing en banc filed by the plaintiff-appellant and the answer of defendant-appellee, Judge Bauer and Judge Flaum, the two circuit judges on the original panel,^* voted 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.

ROVNER, Circuit Judge, with whom WOOD and WILLIAMS, 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 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 Commission 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) (proscribing 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) (proscribing retaliation against employee who "has filed, instituted, or caused to be filed or instituted any proceeding 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 construction of those other statutes.

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 standards through continuing detailed supervision or inspection of payrolls. Rather, it chose to rely on information and complaints 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 Secretary [of Labor] in section 17, Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (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 statute suggests that the complaint must be made externally 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 decisions from other circuits recognizing that oral as well as written complaints are protected by the statute. See Lambert, 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 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).

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 regulations. 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 complaints 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 grievance 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.

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 . . ....