(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 Standards Act of 1938 (Act), which provides minimum wage, maximum 

hour, and overtime pay rules; and which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). In a related 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 workrelated protective gear. In this suit Kasten claims that he was discharged 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 reading 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 dictionary definitions of “filed” contemplate a writing while others permit

using “file” in conjunction with oral material. In addition to dictionary definitions, state statutes and federal regulations sometimes contemplate oral filings, and contemporaneous judicial usage shows that

oral filings were a known phenomenon at the time of the Act’s passage. 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 interpretation 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 question. Some of those provisions involve filed material that is virtually 

always in writing; others specifically require a writing, and the remainder, like the provision here, leave the oral/written question unresolved. 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 Congress 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 intended the antiretaliation provision to cover oral, as well as written, 

complaints. Pp. 8–14.

(1) A narrow interpretation would undermine the Act’s basic objective, 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 “information and complaints received from employees,” Mitchell v. Robert 

DeMario Jewelry, Inc., 361 U. S. 288, 292, and its antiretaliation provision makes the 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 complaint 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 employer 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 consistently held the view that “filed any complaint” covers both oral and 

written complaints. The Equal Employment Opportunity Commission has set out a similar view in its Compliance Manual and in multiple 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 methods, 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 certiorari briefs and since its resolution is not a “ ‘predicate to an intelligent 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, Washington, 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 committee.” §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 antiretaliation 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 retaliation. 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 grievanceresolution 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 SaintGobain’s Employee Policy Handbook as instructing employees with “questions, complaints, and problems” to

“[c]ontact” their “supervisor[s] immediately” and if necessary “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 “Headquarters” 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 placement 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 activity, 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 Kasten 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 antiretaliation 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 discussion 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 complaint of a violation of the Fair Labor Standards Act” is

“protected conduct under the [Act’s] anti-retaliation provision.” 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 authorities 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 considering 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 Dictionary 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 business”). 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 written 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 sometimes used the word “file” in conjunction with oral statements. 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 administrative 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 grievance”); 49 CFR §1503.629(c) (2009) (“[f]iling of motions . . .

must be in writing or orally on the record” (italics omitted)); 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 complaint”); 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 

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Opinion of the Court 

Looking beyond the Act, we find other statutes that

contain antiretaliation provisions. Those statutes, however, 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 Congress 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 maintenance 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 substantive 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 employees seeking to vindicate rights claimed to have been denied.” 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 complaint 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) (onequarter 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 industries for many years after the Act’s passage. In 1948, for 

example, the National War Labor Board wrote: 
10 KASTEN v. SAINT-GOBAIN PERFORMANCE 

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Opinion of the Court 

“In many plants where there is a high degree of illiteracy, 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 National War Labor Board, p. 122. 

To limit the scope of the antiretaliation provision to the

filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It 

could prevent Government agencies from using hotlines, 

interviews, and other oral methods of receiving complaints. And insofar as the antiretaliation provision covers 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 procedures 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 interpreted the language of the NLRA’s antiretaliation provision—“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 “remedial 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 employee is making a complaint that could subject the employer 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 (particularly an employee who seems unusually angry at the 

moment) is in fact making a complaint about an Act violation 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 supra, 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 formality, 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 discriminating 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 believe 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 

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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 powers 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, Compliance 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 complaint” 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 Compliance 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 Suggestion 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 counsels 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 criminal 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 traditional 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 interpretation, we cannot find that the statute remains sufficiently 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 antiretaliation 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, at 

837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said 

nothing about it in response to Kasten’s petition for certiorari. 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 determining 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 remand 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 committee.” Ibid. 

The phrase central to the outcome here is “filed any complaint.” 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 SaintGobain’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 allegation 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] statement 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 environment 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, prescribed process of delivery or submission. Ante, at 4–5 

(comparing, for example, Webster’s 945 (to file is to “deliver (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 assuredly 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 alongside 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 complaint” 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 creating 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 retaliation for, his intracompany complaint, than to require the 

Administrator-protected complaint to be filed with the 

—————— 

1Kasten and this Court’s opinion, ante, at 7, argue that the use of the

modifier “any” in the phrase “filed any complaint” suggests that Congress 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. 2Section 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. Nevertheless, 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. Rodriguez 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 

—————— 

3Kasten 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 retaliatory 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 unmistakably 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 Constitution,” 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 Department 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 almost half a century,” in litigating positions and enforcement 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 intracompany complaints. Id., at 20. 

Even were §215(a)(3) ambiguous, deference would still 

—————— 

4Moreover, 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 regulations 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 appropriate, 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 

—————— 

5Or 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 certiorari 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 permissive rather than mandatory: “Any objection to consideration 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 permitted 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 therefore 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 question 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, objective 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 SaintGobain, 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 nonexistent: 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 detailed,” ante, at 12, carries the requisite “degree of formality,” ante, at 11, or provides “fair notice,” ibid., whatever 

those terms may require.

The test the Court adopts amply disproves its contention that “we can decide the oral/written question separately,” 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.