1 (Slip Opin i o n) OCTOBER T ERM, 20 10
Sy llabu s

N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r

. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O F THE UNI TED STATES

Sy llabu s
KAS T E N v

. SAINT- GOBAIN PE R F ORMA NC E PLASTICS CORP.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVE NT H CIRCUIT
No. 09–8 34. Ar g u ed Oc tober13, 2010— Dec i ded M a r c h22, 2011 Petitioner Kasten brough t an antir e ta lia tion suitag ai nst his for m e r

employer, respondent (Sain t -Gobai n), under the Fa ir Lab o r S t a n
dar d s Ac t of 193 8 (Ac t), w h ic h pr ov ides minimum wa g e , max i mum hour , a n d o v e r time pa y rul e s ; a n d which forbids empl oyers “to dis

charge .

. . any employee be cause such employee has f iled any com
plain t” al legi n ga v i olat iono f th e Ac t, 2 9 U. S. C. §215( a)(3). Inar e
lated suit, th e Distr i c tCou r t found thatSaint-Gob a inv i olated the Ac t byplac ingtimec l oc ks in a loc a tion that prevented workers f r om receivin g credi tfor t h e t i me t h ey s p ent donning a n d doffing work

r e lated pr otec tiv eg e ar

. In this su i tK a s t e nc l a i m s t h a th ew a s d i s
c h ar g e d bec a use h eor allyc o mplain ed to c o mpan yoffic i als abou t th e timec l oc ks. The Distr i c t Cour t g r anted Saint-Goba in summar y judg ment, c o nc ludingthat the Ac t’ s antir e tali ation pr ov ision did not

coverora lcom p la int s

. The S e vent h Circ uita ffirm ed. Held: The scop e of statutory term “filed an y complaint” i n cludes oral, a s

well as wr itte n , c o mplain ts. Pp. 4–15.

(a) The inter p r e tation of the stat utory phrase “depends upon read

ing the whole statutory text, consid er ingthe [sta tute’ s ] pur p ose an d context .

. . , and cons ulting any prec edent s or authorit ies that inform th e an aly s i s .” Dolanv. Post al Service , 546 U. S. 4 81, 4 86. Th e tex t , ta ken a l one, ca nnot provide aconclus ive a n s w er here

. S o me diction

ary definitions of “filed” contempla t e a writing while others permit using“file” in c o njunc t ion wi th or al mater i al. In additio nto dic t ion

ar ydefinitions , sta t e sta t ute s andfeder a l r e g u lations so metime s c o n
templ a te oral filings, and co ntempo raneous judicial usag e shows that oral filings were a known p h enomen on atthe time of the Act’s pas

sage. Even if “filed,” conside r ed alone, might sug g e st a nar r o w inter

-2 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Sy llabu s pretation li mit e d to writings, “ anyc o mplai n t” sug g e sts abr oad inter

pr etationth at wou l d in c l u d e anor alc o mplaint. Thus, the thr ee-wor d ph r a se, taken byitself, c a n n ot an sw erthe inter p r e tiv equestion. The Act ’ s ot her ref e rences t o “f iled” a l s odo not resolve the linguistic ques

tion. Some of those provisio ns invo lve filed materia ltha tis virtually always in wri t ing; others specific ally require a writing, and the re

mainder, like the provision here, leave the oral/written question un

resolved. Since “filed any complaint” lend s it self l i nguistically to the br oader , “or a l” inter p r e tatio n , the use of broader language in other

s t atutes ’ a n tir e ta lia t ion provis ions does not indica te whether Con

gress did or di d not intend to leave oral grievances unprotected here. Bec a use the tex t , taken alone, migh t, or migh t not, enc o mpass or a l

c o mplain ts, th e Cou r t mu st look fu r t h e r

. Pp. 4–8.

(b) Several functional considerat ions indi cate tha tCo ngress in

tended the an tir e tali ation p r ov ision to c o v e ror al, as wel las wr itten,

c o mplain ts. Pp. 8–14. (1 ) A na rrowi n t e rpret a t i on would u n derm ine t h e Act ’ s b a s i c ob

jective, which is to prohib it “l abor conditions de trime n tal to the maintenanc e of the minimum st andar dof living neces s a ry for hea l t h , effic i en c y , and g e n e r a l wel l -bein gof worker s,” 29 U. S. C. §202(a). The Actrelies for enforcem e ntof it s su b s t a n t iv e st an da r d s on“in f or
mation and c o mplaint s r e ceived from employees,” Mitch e ll v. Robert DeMar i o J e we lry, In c. , 361 U. S. 288, 292, an d its an tir e tali ationpr o
vision makes the enforcement scheme effective by preventing “fear of economic retaliation” from i n ducingwork ers “ q uiet ly t o a ccepts u b

s t a n da rd condit ions ,” ibid. Why would Co ngres s want to limit the en

for c e ment sc heme’ s effec t iv eness byinhib i tinguse of th e Ac t’ s c o m
plaint procedure by those who would finditdifficultt o reduce t h eir complaints to writing, particularlythe il literate, less educated, or

overwo rked workers who were most inneed of the Act’s help at th e time of p a s s ag e? Limitingt h e pr ov ision’ s sc ope to wr itte n c o mplaints could pre v ent Government agencies from using hotlines, interviews, and otheror a lmethod s to r e c e iv e c o mplaints. And i n sofaras the provision cove rs complaints made to em ployers, a lim iting reading would discourage using i n fo rmal wo rkplace grievancep r ocedures to

sec u r ec o mplianc e with the Ac t. The National Labor Re lations Act’s antiretali at ion provision has been broadly interpreted as protecting

wor k er s who simply “par tic i pate[d] in a [ N ationa l Labo r Relation s] Boar d in v e sti g ation

. ” NLRBv. Scriv e n e r , 405 U. S. 1 1 7 , 123. Th e simi lar enforcement needs of this r e latedstatu t e ar g u e fora br oad inter p r e tationof “c omplaint.” The Act’s requirem ent that an em

ployer receivefa ir not i ce of a n emp l oy ee’ s c o mpl a int c a n be met by

or al, as well as wr itten , c o m p lain ts. Pp. 8–12. (2) Giv e n the deleg a tion of enfor c e ment power s to feder a l admin

-3 Cite as: 56 3 U

. S. ____ (2011)
Sy llabu s istrative agencies, th eir views about th e meaning of the phrase should be given a degree of weight. The Secretary of L abor has con

sistently held the view that “filed an y com p la int” covers bot hora la n d

wr itten c o mplaints. The E q ual Em ploy ment Oppor t unityCommi s
sionh a s se t o u t a si mil a rv i ewinits Co m p liance Manual and in mul

tiple briefs. T h ese views are reason able a n d c o nsistent with the Ac t. And the leng th of time theyhav eb een held suggests th at they reflect

ca reful co ns idera t ion, not“ post ho crationaliza t io[n].” Motor Ve hicle Mfrs . Assn . of United S t ates , Inc. v. Sta t e Farm Mut. Au tom o b ile Ins. Co. , 463 U. S. 29, 50. Pp. 12–13. (3) After engaging in traditio nal st atutor yinter p r e tation meth

ods, the statu t e does not remain s u fficient l y a m b i guous t owa rra nt applic a t ionof th e r u le of len i ty

. Pp. 13–1 4.

(c) This Court will not considerSaint-Go bain’s a l terna t ive claim that the anti r e talia tion pr ov ision applie s only to co mplaint s filed with the Gov e r n ment, sinc e that c l aim was notr a ised in the c e r t io

rari briefs and since its res o lution is not a “ ‘predicate to an intelli

gent resolution’ ” of the oral/wr itten question a tis sue , Caterpillar Inc. v. Le w i s , 519 U. S. 61, 7 5 , n

. 13. Pp. 14–1 5. 570 F. 3d 83 4, v a c a ted an d r e man d ed.

B REYER , J., delivered the o p inion of the Cour t, in whic h R OBERTS , C. J., an d K E NNEDY , G IN SB U R G , ALITO , and S OTOMAYOR , JJ., joined. S CALI A , J., filed a dissent ing opinion, in which T HOMAS , J., joined as to all bu t n

. 6. K AGAN , J., took no part in the co nsiderati o n or decision of the c a se._________________

_________________ 1 Cite as: 56 3 U

. S. ____ (2011)
Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to
n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s

. 

## SUPREME CO URT O F THE UNI TED STATES

No. 09–8 34

KEVIN KA STE N , PET I TIONER v. SAINT- GOBAIN PERF ORMA NC E PLA STICS COR P ORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SEVE NTH CIRCUI T [M ar c h22, 2011]
J USTICE B RE YE Rdelivered the opinion of the C o urt. The Fair Labor Standards Act of 1938 (Act) sets forth employmen trules concerning minimum wage s, 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 a n y other manner discriminate against any employee b e cause such employee h a s filed any complaintor instituted or caus ed to be in stituted any proceeding under or relatedto [the Ac t], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industrycommittee.” §215( a)(3) (emphasis added). We must decide whether the statutory ter m “filed any complaint” includes oral as well as written complaints within its scope. We co nclude that it does. IThe petitioner, Kevin Kasten, brought this antiretaliation lawsuit against h i s former employer, Saint-Gobain Performance Plastics Corporation. Kast en says t h a t2 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt Saint-Gobain located its timeclocks bet w een the area where Kasten and oth e r work ers put on (a nd tak e off) their work -related protective gear and the are awhere they

carr y out t h eir assigned tasks. That location prevented workers f r om receiving creditf o r the tim e they spent putting on and taking off thei r work clothes—contrar y to the Act’s r e quirement s. In a related suitthe Distric t Court agre ed with Kasten, finding that Sa int-Gobain’s “prac t ice of not compensating .

. . for time spent donning and doffing certain required protective gear and walkin g to workare a s” violated the Act. Kastenv. Saint-Gobain Performan c e Plas tics Co rp. , 556 F. Supp. 2d 9 41, 954 (WD Wis. 2008). In this s u it Kasten claims unla w ful retaliation. He says that Sa int-Gobain discharged him becaus e he orally complained to Saint-Go bain officia l s about the timeclocks. In particular, Kasten says that he repeatedly called the unlawful ti meclock location to Sa int-Gobain’s attention— in accorda n ce with Saint-Gobain’s interna lgrievance

resolution procedure. See Brief for Petitioner 4 (quoting Saint-Gobain’s Code of Ethics and Business Conduct a s imposing u p on every e m ployee “the responsib i lity to report

. . . suspected violation s of .

. . any applicable law of which he or she becomes a w are”); id. , at 4–5 (q uoting Sai n tGobain’s Employee Policy Handb ook as instructing em

ployees with “questio ns, co mpla ints, and problems” to “[c]ontact” t h eir “supervisor[s] immediately” and if necessary “ta ke the issue to the next level of m anagement,” then to the “local Hu man Resources Mana ger,” then to “Human Resources” personnel at the “Regional” or “Headquarters” level). Kasten adds that he “raised a concern” withhis shift supervisor that “it wa s 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 “i f they were to get chal­Cite as: 56 3 U

. S. ____ (2011) 3
Opinion of theCourt lenged on” the location in cou rt, “t hey would lose”; he told his lead operator that the lo cation was illegal and that he “was thinki ng about starting a l a wsuit about the placement of the time clocks”; and he told the human resources manager and the operations man a ger that h e thought the location was illegal an d that the company would “lose” in court. Record in No. 3:07–cv–00686–bbc (WD Wis.), Doc. 87–3, pp. 31–34 (depos ition of Kevin Kasten). This activity, Kasten concludes, led the company to discipline hi m and, in December 2006 , to dismiss him. Saint-Gobain presents a different version of events. I t denies that Kasten made any significant complaint abou t the timeclock location. And itsay s that it dis m issed Kas

ten simply because Kasten, after being repeatedly warne d , failed to record his comings and goings on the timeclock. For present purposes we a cceptKasten’s version of these conte s ted events as valid. See Scottv. Harr is , 550 U. S. 372, 3 80 (2007). That is because the District Court entered summary judgment in Saint-Gobain’s favor. 619 F. Supp. 2d 608, 610 (W D Wis. 2 008). And it did so, n o t because it doubted Kasten’s abilit y to prove the facts he alleged, but because it thought the Act did notprotect oral complaints. Id. , at 6 11–613. O nappeal, t h e Seventh Circuit agr eed with the District Court that the Act’s a n
tiretaliation provision does not cover oral complaints. 570 F. 3d 834, 838–840 (2009). Kasten sought certiora r i. Andin l i ght of confl i ct among the Circuits as to whether an oral complaint is protected , we gran ted Kasten’s pe tition. Compare Haganv. Ec hos t a r Satellite, L. L. C. , 529 F. 3d 617 , 625–626 (CA5 2008) (antiretaliation provision covers oral complain ts); Lambert

v. Ackerl ey , 180 F. 3d 997, 1007(CA9 1999) (en ban c) (same); with Lambert v. Gene se e Hospi t al , 1 0 F. 3d 46, 55– 56 (CA2 1 993) (antiretaliation provision does not cover informal complaints to supervisors). See also Pacheco v. Whitin g Fa rms, Inc. , 365 F. 3d 1199, 1206 (CA10 2004 )4 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt (antiretaliation provision covers unofficial assertion of rights); EE OC v. Whi t e & Son En ter p ris e s , 8 81 F. 2d 1006, 1011–1012 (CA11 198 9) (same); Moorev. F reeman , 35 5 F. 3d 558, 562–563 (CA6 2004) (a ssuming wi thout discu s
sion that or al complaints are covered); Brennanv. Maxey’s Yamaha, In c. , 513 F. 2d 179, 181 (CA8 1975) (same). II The sole q u estion presented is whether “an oral complaint of a violation of the Fair Labor Standards Act” i s “protected c o nduct und er the [Act’s] anti-retaliation provision.” Pet. for Cert. i. The Act protects employees who have “filed any complaint,” 29 U. S. C. §2 15(a)(3), and interpretati on of this phrase “de p ends upon reading th e whole statutory text, considering the purpose and context of the statute, and co nsulting any pre c edents or authorities that inf o rm the an alysis,” Dol a nv. PostalService , 5 4 6 U. S. 481, 486 (2006). This analysis leads us to conclude that the lan guage of the provisio n, considered in is olation, may be open to competing interpr e tations. B u t considering the provision in conjunction with the purpose an d context leads us to conclude that only one interpretation i s permissible. A We begin with the textof the statute. The word “filed” has different relevant meaning s in different contexts

. Some dictionary definitions of the word contemplate a writing. Se e, e.g. , Webster’s Ne w I n ternational Dictionary 945 (2d ed. 1934) (def. 4(a)) (to file is to “deliv er (a paper or instrum e nt)to the pro p er officer so that it i s received by h i m t o b e k e p to nf i l e , o ra m ong 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 pre s cribed by law”). But other d i ctionaries provide different definitions tha t5 Cite as: 56 3 U

. S. ____ (2011)
Opinion of theCourt permit the use of the word “file” in conjuncti on with ora l material. One can, for example, file a nor al statement that enters a matter “i nto the order of business.” 1 Fun k & Wagnalls New Standard Dictionary of the English Language 9 20 (rev. ed. 1938) (def. 2) (to file is to “present in the regular way, as to a judicial or legislative body, so that itshall go upon t h e records or into the order of bu siness”). This possibility is significant becau s e it means that dictionary meanings, even if c o nsidered a l one, do no t
neces sar ily limit the scope of the statutory phrase to written complaints. Cf. Cr awfordv. Metropolitan Government of Nashville and Davidson Cty. , 555 U. S. ___, ___ (200 9) (slip op., at 5) (looking for the “limits” of a linguistic phrase rath er than wh at “exemplif[ies]” its application). In addition to the dicti onary defin i tions, we have found that legislators, administrators, a n d judges h a ve all sometimes used the word “f ile” in conjunction wit horal statements. Th us state statutes sometimes contemplate oral filings. See, e.g. , Alaska Stat. §47.32.090(a) (2008) (“file a verbal or written co mplaint”); Cal. Health & Safety Code Ann. §17055(a) (West 200 6) (“file anadministrative complaint orally or in wri t ing”); D. C. Code §7– 1231.12(a)(2)(B) (2001) (“filing his or her grievance, orall y or in writi n g”); Ga. Code Ann. §§31–8–124( a), (c), 31– 8– 134(b) (200 9) (“to file a grievance,” a person may “submit an oral or written complaint”); Ind. Code §27–8–28–14(a) (2009) (“file a grievance orallyor in writing”); Me. Rev. Stat. Ann., Tit. 34–B, §5604(3)(B) (2009) (“filed through a n oral request”); Miss. Code Ann. §69–47–23(4) (2005) (“fi le 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 grievanc e or shallstate it orally”); Nev. Rev. Stat. §§618.336(2)(a), 618.341(1)(a) (2009) (“oral or wri tten complaint filed”); N. J. Sta t . Ann. §30:4C–12 (West 2008) (“writtenor oral complaint m a y be filed”); N. Y. Ins. Law Ann. §§3217–a( a)(7), 4324(a)(7) (Wes t6 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt 2006) (“file a grievance orally”); N. Y. Pub. Health La w Ann. §§4408(1)(g) (West Supp. 2 010) (“file a grievance orally”); Pa. Stat. Ann., Tit. 40, §§991.2141(a)–(b) (Purdo n 1999) (“file a .

. . written or oral complaint”); Tex. Ins. Code Ann. §§1305.401( a)–(b) (Wes t 2009) (“oral or writte n complaint” must be “file[d]”); Wash. Rev. C o de §§90.64.030 (3), (5) (2008) (“complaints have been filed .

. . as the result of either an oral or a written com p laint”). Regulations promulgated byvarious federal agencies sometimes permit com p laints to b e filed orally. See, e.g. , 32 CFR §8 42.20 (2010) (“[f]iling a claim” may proceed “orally or in writing”); 42 CFR §4 22.564(d)(1) (2009) (“file a grievance

. . . either orally or in writing”); §423.564(d)(1) (same); §43 8 .402(b)(3)(i) (“file a grievance eit h er orally or in writing”); §494.180 (e) (“file a noral or written gri e vance”); 49 CFR §1503.629(c) (2009) (“[f]iling of motions .

. . must be in writing or orally on the record” (italics omi t

ted)); 42 CFR §438.402(b)(3)(ii) (2009) (“file an appeal either orall yor in writing”). And a review of contemporaneous judicial usage, cf. Utahv. Ev ans , 536 U. S. 452, 475 (2002), shows that ora l filings were a known phenomenon when the Act was passed. See, e.g., ReedOil Co. v. Cain , 169 Ark. 309, 312, 275 S. W. 3 33, 334 (19 25) (“appellee filed .

. . an oral com

plaint”); Ti nglerv. La hti , 87 W. Va. 499, 5 03, 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 ma r s hal”); Indian Fredv. Sta t e , 36 Ariz. 48, 52–53, 282 P. 930, 932 (19 29) (“filed an oral motionto quash”); Dunn v. St a t e , 60 Okla. Cr. 201, 203, 63 P. 2d 772, 773 (1936) (“filed an ora ldemurrer”); Morrison v. Lewis , 58 Ga. App. 6 77, 199 S. E. 782 (193 8) (“filed an oral motion” demurring); Brockv. Cullum Bros. , 263 S. W. 3 35 (Tex. Civ. App. 1924) (“filed anoral m o tion to quash”); Fike v. Allen , 269 S. W. 179, 18 0 (Tex. Civ.Cite as: 56 3 U

. S. ____ (2011) 7
Opinion of theCourt App. 1925) (“filed oral pleadings”). Filings may more often be made in writing. See, e.g. , Ritte rv. Unit e dSt at es , 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 “ anycomplaint.” So even if the word “filed, ” considered alone, migh t suggest a narrow interpretati on limited to writings, the phrase “ anycomplai n t” suggests a broad inter p retation th at would in clude an or al complaint. See, e.g. , Republic of Iraqv. Be a t y , 556 U. S. ___, ___ (2009) (slip op., at 7). The upshot is that th e three-word phrase, taken by itself, cannot a n swer the interpretive question. We can look further to other app e arances of the word “filed” in the Act. See MCI Tele c o mmunicati ons Corp. v. Americ a n Telephone & Teleg raph Co. , 512 U. S. 218, 22 6 (1994) (examining “contextual indications” of the meaning of a term). That word (or a variant) appears in numerous other provisions. But its appearance elsewhe r e in the Act does not resolve the linguistic question before us. Some o f those othe r provisions (1) involv e filed m a terial that, unlike a complaint, is of a kind th at is virtual ly always i n writing. See, e.g. , 29 U. S. C. §203( l) (employers mus t “have on file an unexpired certificate” (emphasis added)); §210(a) (Secretary mu st “file in the court the re cord 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 wri t ing ” to join collective action to be “fil ed” (emph a sis added)); §216(b) (same). And the remainder (3) leave the oral/ written question unre s olved—just as does t h e provisio n before us. See, e.g. , §210(b) (prohibiting a stay unless movant “fi l e[s] in court an u ndertaking ” (emphasis added)); §214(c)(5)(A) (employee “may file .

. . a petition ” for review of a special wage rate ( e mphasis added)).8 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt Looking beyond the Act, we find other statutes that contain antiretaliationprovisions. Those st atutes, 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

“ opposeda n y [unlawful] practi ce” (emphasis added)); 42 U. S. C. §§2000e– 3 (a), 12203(a) (same); 29 U. S. C. §2615(a)(2) (similar). S ee also, e.g., 15 U. S. C. §2087(a)(1) (2006 ed., Supp. III) (“ provided

. . . to the e m ployer .

. . informationrelating to any violation” (emphasis added)); §2651(a) (similar); 30 U. S. C. §815(c)(1) (“filed or madea complaint” (emphasis added)); 42 U. S. C. § 5851(a)(1)(A) (“ notifiedh i s employer” (emphasis added)); 49 U. S. C. §42121(a)(1) (“ provid ed

. . . information” (emphasis added)); §6 0129(a)(1) (same). So me of this language is broader than the phrase before u s , but, given the fact tha t the phrase before us lends itself linguistically to the broader, “or a l” interpre tation, the use of broader languag e elsewhere may mean (1) that Congress wante dto limit th e scope of the phrase before us to w r itings, or (2) that Congress did not beli eve the differ e nt phraseology made a significant difference in this respect. The language alone does not tell us whethe r Cong ress, if intending to protect orally expressed grievances else where, did or did not intend to leave those or al grievanc es unprotected here. The bottom line is th at the text, taken alone, cannot provide a c o nclusive answer to o u r interpre tive question. The phrase “filed any complaint” might, or might not, encompass oral complaints. We m u st look further. B 1 Several functional cons iderat ions indicate that Congress intended the antiretaliation provision to coveroral, as well as written, “complaint [ s].” First, an interpr e tation that limited the provision’s covera ge to writte n complaintsCite as: 56 3 U

. S. ____ (2011) 9
Opinion of theCourt would undermine the Act’s basic objectives. The Act see k s to prohibit “labor conditions det r imental to the maint e
nance of the minimu m standard of living necessary for health, efficiency, and general well-being of workers.” 29 U. S. C. §202(a). It d oes s o inpart by setting forth substantive wa ge, hour, and overti me standards. It relies f o r enforcemen tof these standards, not upon“continuing detailed federal supervision or ins p ection of payrolls,” butupon “information and complaints received from employees seek ing to vindicate rights claimed to have been denied.” Mitchell v. Robe rt DeMa rio Jewel r y, Inc. , 361 U. S. 288, 292 (1 960). And its antiretaliation provision makes this enforcement scheme effecti ve by preventing “fear of economic retaliation” from inducing work ers “quietly to accept subs tandard con d itions.” Ib id. Why would Congress want to limit the enforcement scheme’s ef fectiveness by inhibitin guse of th e Act’s com

plaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or over work ed work ers? President Frank lin Roosevelt pointed out at the tim e that thes e were the workers mo st in need of the Act’s help. See Message t o Congress, May 24, 1937, H. R. Doc. No. 255 , 75th Cong., 1st Sess., 4 (seeking a bill to help t h e poorest of “those who toil in factory”). In the years prior to the passage of the Act, illiteracy rates were particularl y high am ong the po or. See E

.Gordon & E. Gordon, Literacy in America 273 (2003) (onequarter of World War I conscripts were illiterate); Dept. of Commerce, Bureau of Census, S i xteenth Census of t h e United Sta t es, 1940, Population: The Labor Force (Sampl e Statistics): Occu pational Characte ristics 60 (1943) (20.8 % of manufacturing laborers in 194 0 had less than five year s 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-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt“In many plants where there is a high degree of illiteracy, the writing of griev ances by employees work s a substantial hardship. In other plants where there is considerable dirt and special clothes must be worn, it is often not prac ticable to write u p grievan c es during work hours

. ” 1 The Termination Report of the National War Labor Board, p. 122. To limit the scope of the ant iretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It could preve n t Govern ment agencies from using hotlines, interviews, and other oral methods of receiving co mplaints. And insofar as the anti r etaliation provision covers complaints made to employer s (a matter we need not decide, see infra, at 14–15), it wou l d discourage the use of desirable informal workplac e grievance procedures to secure compliance wit hthe Ac t. Cf. Burlington Industries, Inc. v. E llert h , 524 U. S. 742, 764 (1998) (reading Title VII to encourage the devel o pment of e ffective grievance proce

dures to deter misconduct); D. Mc Pherson, C. Gates, & K. Rogers, Resolving Grievances: A P r actical Ap proach 38–4 0 (1983) (describing the significant benefits of unwritten complaints). Given the need for effective enforcement of the NationalLabor Relations Act (NLRA), this Court has broadly interpreted the language of the NL RA’s antiretaliation provision—“filed charges or given t e stimony,” 29 U. S. C

. §158(a)(4)—as protecting workers who neither filed charges nor were “called formallyto testify” but simply “participa te[d] in a [National Labor Relations] Board investigation.” NLRBv. Scriv e n e r , 405 U. S. 117, 123 (1972) (emphasis added). The similar enforcement needs of this related statute argue for an interpretation of the word “comp laint” that would prov ide “broad rather than narrow protection to the employee, ” id. , at 122 (and would11 Cite as: 56 3 U

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Opinion of theCourt do so here without pressing statutory language to its limit). See also Tennes see Coal, Ir on & R. Co. v. Muscod a Local No. 1 2 3 , 321 U. S. 590, 597 (1944) (the Act’s “rem e
dial and humanitarian .

. . pu rpose” cautions against “narrow, gr udging” int e rpretations of its language). Saint-Gobain replies t hat wor k erprotection is not the only relevant statutory objective. The Act also seek s to establish a nenforcement system that is fair to employers. To do so, t h e employer must have fair notic e 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 wh ether an employee (particularly anemployee who seems unusually angry at th e 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 t h e di ctionary definitions, statutes, regulations, and judicial opinions we considered, see su
pra , at 4–7, do not distinguish between writi n gs and oral statements, they do suggest that a “filing” is a seriou s occasion, rather thana trivialit y. As suc h , the phr a se “filed any complaint” contemplates some degree of formal

ity, certain ly to the point where the recipient has been given fair notice that a grievance has beenlodged an d does, or should, reasonably unders t and the m a tter as part of its busin ess concerns. Moreover, the statute proh ibits employers from discriminating against an employee “ becaus esuch employee has filed a n y complaint.” §215(a)(3) (emphasis added). And it is dif f icult to seehow an em ployer who does not (o r should not) know an e m ployee has made a complaint could discriminate because o f that comp laint. But we also believe that a fair notice requi rement does not necessarily mean that notice must be in writing. At oral argument, the Government said that a complaint12 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt is “filed” when “a reasonable, objective perso nwould have understood the emplo y ee” to have “put the employer on notice that [the] empl oyee 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 underst and it, in light of both content andcontext, as an assertion of righ ts protected b y the statute and a call f o r their protection. This standard can be met, however, by oral complaints, as well as by written ones.
2 Second, given Congress’ dele gation of enforcement powers to federal administrative ag encies, we also give a degree of weight to the i r views about the meaning of this enforcemen tlanguage. See 29 U. S. C. §216(c) (vestin g enforcement power in Secretar yo f Labor); Reorganization Plan No. 1 of 1978, 5 U. S. C. App. §1, p. 66 4 (transferring to Equal Employment Oppo rtunity Commis s ion (EEOC) enforcement of this an tiretaliation provision as partof its Equal Pay Act enforce ment responsibiliti e s); Skidmorev. Swif t & Co. , 323 U. S. 134, 140 (1944) (giving weight to a persuasive articulation of views within an agency’s area of expertise). The Secret a ry of Labor has consistently held the view that the words “filed a n y complaint” coveror al, as well as written, co mplaints. The Depa rt ment of Labor articulated that view in an enforcement action filed man yyears ago, Goldberg v. Zen ger , 43 CCH LC ¶31,155, pp. 40,98 5, 40,986 (D Utah 1961). It has s ubsequently reaffirme d that view i nbriefs. See, e.g. , Bri e f for Secretary of Lab o r
as Amicus CuriaeSu p p orting Pet i tion for Rehearing with Suggestion for Rehearing En Bancin Lambert v. Ackerley , No. 96–360 17 etc. (CA9), pp. 6–7. And mor e recently it has acted in accordanc e with t hat view by creating a hot­13 Cite as: 56 3 U

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Opinion of theCourt line to receive oral complaints, see Dept. of La bor, Compliance Assistance By La w—The Fai rLabor Standards Act (FLSA), http://www.dol.gov/com pliance/laws/comp-flsa.htm (as visited Mar. 18, 2011, and available inClerk of Court’s case file) (directing participants who wish to “file a complaint” to c o ntact a local o ffice “or call the Departmen t’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., Br ief for EEOC as Amicu s Curiaein S u pport of P e tition for Rehearing with Su gge stion for Rehearing En Bancin Lambertv. Ackerl ey , No. 96–36017 etc. (CA9), pp. 8–13; Brief for Appellee in EEOC

v. Whi t e & Son Enter p rise s, Inc. , No. 88–7658 (CA11), pp. 29–30. These agen cy views are reasonable. They are consistent with the Ac t. The length of time the agencies have held them sugge sts thatthe yreflectca reful consideration, not

“ post hocrationalizatio[n].” Motor Vehicl e Mfrs. A ssn. of United States, Inc. v. State Farm M u t. Automobile Ins. Co. , 463 U. S. 29, 50 (1983). And they consequent ly add force to our conc lusion. Skidmore , supra , at 140; cf. United Sta t esv. Me a dC o r

p

. , 533 U. S. 2 18, 229, 234–235 (2001) (Court sometimes find s judicial de ference inte nded even i n absence of rulemaking authority); Babbittv. Sweet Home Chapter, Communities for Gr ea t Ore. , 515 U. S. 687, 703 – 704, and n. 18 (1995) (agency views, where the law cou n
sels deference, can cla r ify otherwise ambiguous statutory provisions).
3 Finally, we note that Saint-Gobain invokes the “rule of lenity” in s u pport of i t s “writte n c o mplaint” interpretati on. That rule a pplies prim arily to the interpretat i on of criminal statute s

. It leads us to favor a more lenient interpre­14 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. Opinion of theCourt tation of a criminal statute “whe n, after consulting tra ditional canons of statutory cons t r u ction, we ar e left with a n ambiguous statute.” United S t a t esv. Shaba n i , 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). Bu t after engag i ng in trad i tional met h ods of statutory inte rpretation, we cannot find t hat the statute remains sufficiently ambiguous to warran tap plication of the rule of lenity here. C Alternative l y, Saint-Go bain claims that it should prevail because Kasten complained to a private employer, not to the Govern ment; and, in Saint-Go bain’s view, the antiretaliation provision app lies only to complaints filed with the Government. Sain t-Gobain advanced this claim inth e lower courts, which h e ld to the contrary. 570 F. 3d, at 837–838; 6 19 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten’s petition for certiorari. Indeed, it did no t mention t h e claim in this Court until it filedits brief on the merits. We do not normally consider a separate legal question not raised in the certio r ari briefs. See this C o urt’s Rule 15.2; Caterpillar Inc. v. Lewi s , 519 U. S. 61, 75, n. 1 3 (1996). We see no reason to make an exception here. Resolution of the Government/private employer questio n is not a “ ‘ “ p redicate t o an intelligent resolution” ’ ” of the oral/writtenquestionthat we gr a n ted certiorari to decide. See ibid. ( quoting Oh io v. Robi nette , 519 U. S. 33, 38 (1996)). That is to say, we candecide the oral/writte n question separately—o n its own. And we h a ve done so. Thus, we state no view on the merits of Saint-Gobain’s15 Cite as: 56 3 U

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Opinion of theCourt alternative claim. Cf. post , at 1–5 (S CALI A , J., dissenting). * * * We conclude that the Sevent h Circ uit erred in determining that oral complaints cannot fall within the scope of th e phrase “filed any com p laint” in t h e Act’s an tiretaliation provision. We leave it to the lower courts to decide whether Kasten will be able to satisfy the Act’s notice requirement. We vac a te the Cir c uit’s jud g ment and r e
mand the c a se for furt her proceed ings consistent withthi s opinion. It is so orde red.

J USTICE K AGANtook no part i nthe cons ideration or decision of t h is case._________________

_________________ 1 Cite as: 56 3 U

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S CALIA , J., dis s e nting 

## SUPREME CO URT O F THE UNI TED STATES

No. 09–8 34

KEVIN KA STE N , PET I TIONER v. SAINT- GOBAIN PERF ORMA NC E PLA STICS COR P ORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SEVE NTH CIRCUI T [M ar c h22, 2011]
J USTICE S CALIA , with whom J UST I CE T HOMASjoins as to all but foot note 6, diss enting. The Seventh Circuit found for the employer because it held that the Fair Labor Standards Act of 1938(FLSA), 29 U. S. C. §2 15(a)(3), covers only written comp laints to the employer. I would affirm the judgment on the ground that §215(a)(3) does not cover complaints to the em ployer at all. I The FLSA’s retaliationprovision s t ates that it shall be unlawful “to discharge or in a n y other manner discriminate against any employee because such employee has filed any complaint or instituted orcau s ed to be instituted any pro c eeding under o rrelated to this chapter, or has testified or is about to testify in any such pro c eeding, or has served or is about to serve on an industry com

mittee.” Ibid

. The phrase central to the outcome here is “filed any com

plaint.” In the courts belo w, Kasten asserteda claim for retaliation based solely on allegations that he “filed” oral “complaints” with his employer; Saint-Gobain argued that the retaliation provision protects o n ly complaints that ar e (1) in writing, and (2) made to j u dicial or administrativ e2 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. S CALIA , J., dis s e nting bodies. I agree with at least t h e second part of SaintGobain’s contention. The plain meaning of the critica l phrase and the context in which appears make clear that the retaliation provision contemplates an offic i al 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 “comp laint” could cover Kasten’s objection: It often has an expansive meanin g , connoting any “[e]xpression of grief, regret, pain .

. . or resentment.” Webster’s New Intern ational Dictionary 546 (2d ed. 193 4) (hereinafter Webster’s). Butat t h e time the FLSA wa s passed (and still today) the word when us ed in a legal context has borne a specialized m e aning: “[a] formal alle

gation or ch arge agains t a part y, m a de or presented to the appropriate court orof ficer.” Ibid. See also Cambridge Dictionary of American English 172 (2000) (“a formal statement to a government authority that yo u have a legal cause to complain about the wa y you have b een treated”); 3 Oxford English Dictionary 608 (2d ed. 1989) (“[a] state

ment or injury or grievance laid before a court or judicial authority . . . for purposes of prosec ution or of redress”). There are several reasons to think that the word bears its specializ ed meaning here. Firs t, every other use of th e 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 uponthe filing of a compl a int” by the Secretary of Labor, and §216(c) cla r ifies that the statute o f limitations begins running in actions to recover unpaid wages “on the date when the complaint is filed.” These provisions unquestion ably use “complaint” in the narrow legal sense. Identical words used in different parts of a statute are presumed to have the same m e a n ing absent3 Cite as: 56 3 U

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S CALIA , J., dis s e nting
contrar yin dication, IBP, Inc. v. A l varez , 546 U. S. 21, 3 4 (2005); Sull ivan v. Stroop , 496 U. S. 478, 48 4 (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; itis quite something else to wrenchit from the legal context entirely, to include an employee ’s objection to an employe r

. Second, th e word “co mplaint” appears as part of the phrase “filed any co mplaint” and thus draws meaning from the ve rb with whi c h it is conn ected. The choice of the word “filed” rathertha na broaderalternative like “made, ” if it does not connote (as the Seventh Circuit believed, and as I need not consider) something in wri t ing, at lea s t suggests a degree of formality con s istent withlegal actio n and inconsistent (at least in the less regulat e d work envi

ronment of 1938) with employee-to-employer complaints. It is noteworthy tha t every defin i tion of the verb “filed” that the Court’s opinion provides, whether it supports th e inclusion of oral conte n t or not, envisions aformal, pre

scribed pro c ess of delivery or submission. Ante , at 4– 5 (comparing, for example, Web ster’s 945 (to file is to “de

liver (a paper or instrument) to the proper officer”) with 1 Funk & Wa gnalls New Standard Dictionary of the English Language 9 20 (rev. ed. 1938) (to f ile is to “present in the regular way, as to a judicial or legis l ative body”)). Moreover, “[t]he law uses familia r legal expressions in their famili ar legal sense,” Henr yv. UnitedStates , 2 51 U. S. 393, 395 (1920). It is, I suppose, poss ible to speak of “filing a complaint” wi th an employer, but that is assur

edly not co mmon usage. Thus, when the antiretaliation provision of the Mine Health an d Safety Act used th at phrase in a context th at includes both comp laints to an agency an dcomplaints to the e m ployer, itdid notu s e “filed” alone, but supp lemented that with“o r made”—a n d to boot specified “including a complaint notifying the [mine] oper ator . . . of an allege d danger or safety or health4 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. S CALIA , J., dis s e nting violation . . . .” 30 U. S. C. §815(c)(1). 1 Third, the phrase “filed any comp laint” appears along

side three other p r otected ac ti vities: “institut[ing] or caus[ing] to be instituted any proceeding under or relate d to this chap ter,” “ t estif[ying] in an y such proc eeding,” an d “serv[ing] .

. . on an industry co mmittee.” 2 29 U. S. C. §215(a)(3). Since each of these three activi ties involves an interacti on with gov e rnmental authority, we can fairl y attribute th is character i stic to the phrase “filed any com
plaint” as well. “That several items in ali st share a n attribute co unsel in favor of inter p reting the other item s as possess ing that attribute as well.” Beecham v. United Sta t es , 511 U. S. 368, 371 (1994). And finally, the 1938 version of th e FLSA, while creat

ing priva t e rights of a ction for other employer violations,

see §16(b), 52 Stat. 1069, did not create a private right of action for retaliation. That was added in 197 7, see §10, 91 Stat. 1252. Until then, only th e Administrator of the Wage and Hour Division of the Department of Labor could enforce the retaliationprovision. See §11( a), 52 Stat. 1066. It would seem m o re strange to require the employee to go to the Administra tor to estab lish, and pu nish retalia

tion for, his intracompany compla int, than to require th e Administra tor-protecte d compla int to be filed with th e

——————

1 Kas t en and this Court’s opinion, ante , at 7, argue that the use of the modifier“any” in the phr a se “filed anyc o mplain t” su g g e sts th a tCon

g r ess meantt o define the w o r d“c omplain t” ex pans iv ely

. Not so. Th e modifier“any” does not c a use a wor dthat is in c o ntex t nar r o w to bec o me br oad. Th e ph r a se “to c a sha c h eck at an yban k” does n o t r e fer to a r iv e rbank, orev en a blood ban k.

2 Section 5 of the original FLSA, which ha s since b e en repea l ed,

c h ar g e d indus t r yc o mmittee s with r e c o mmendingminimum wag e s f o r
c e r t ainin du str i es to th e Depar tmen tof Labor

. 52 St at. 1062. Inor der to per f or m this func tion, ind u str yc o mmitt ees wer eempower e d, among other things , t o “hear .

. . witnes s e s” and “receive

. . . e v idence.” §8(b), id., at 1064.5 Cite as: 56 3 U

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S CALIA , J., dis s e nting Administra tor in the first place. 3 B 1 The meaning of the phr a se “filed any complaint” is clea r in light of its context, and there is accordingly no need to rely on abstraction s of congressional pur p ose. Never

theless, Kasten argu es that protecting i n tracompan y complaints best accord s with the p u rpose of the FLSA

—“t o assure fair compensation to cover e d employe e s”—because such purpo s es are “advanced when internal complaints lead to voluntary com p liance.” R e ply Brief for Petitioner 18. But no legislation pursues its ends at all costs. Rodr i

guez v. Uni t ed States , 480 U. S. 522, 525–52 6 (1987) (p er curiam). Congress may not have protected intracompan y complaints for the same reason it did not provide a private cause of action for retaliation against complaints: because it was unwi lling to expose employers to the litigation, or to the inabilit y to dismiss unsatisfactory workers , which that additional s t ep would entail. Limitation of the retaliation provision to agency co mplaints may have been an attem p t “to achieve the benefits of regulation right up to th e point where the costs of further benefits exceed the value of those be nefits.” Easterbrook , Statutes’ Domains, 50 U. Chi. L. Rev. 533, 541 (1983).
2 In deciding whether a noral complaint maybe “filed,” the Court’s opinion ex amines mo dern state and federal statutes, which presumably cover complaints filed with an

——————

3 Kasten ar g u es that ex c l udingintr ac ompanyc o mplaints would make the phrases “ f iled any complaint” an d“insti tuted o rc a used to be institutedany proceeding” redundant. T h a ti s n o t s o

. Ane m p l o y e e mayfile a c o mplaint wi th the Admini s t r a torthat doe s not r e sult in a proceeding, or has not yet d o ne so when the employer takes i t s retali a
tor yac tion.6 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. S CALIA , J., dis s e nting employer. The only relevance of these provisions to whether th e FLSA cov e rs such co mplaints is that none of them achieves that result by use of the ter m “filed any complaint,” and all of them use la nguage tha tunmistaka

bly includes complaints to employers. See, e.g. , 42 U. S. C. §2000e–3(a) (prohibiting retaliation agains t employees who “oppos[e] any [unlawful] pra ctice”). An y suggestio n that because more recent statut es cover intracompan y complaints, a provisionadopted inthe 1938 Act should b e deemed to do so is un acceptable. While the j u risprudence of this Cour t has sometimes sanctioned a “living Constitu

tion,” it ha s never approved a living United States Code. What Congress enacted in 1938 must be applied accordin g to its terms, and not ac cording to what a mod e rn Congre ss (or this Court) would de em desirable. 4
3 Kasten arg u es that this Court should defer to the De

partment of Labor and Equal Employment Opportuni ty Commission’s (EE O C ) interpret a tions of 29 U. S. C

. §215(a)(3). He claims that those agencies have construed §215(a)(3) to protect intracompan y complaints “[f]or al

most half a century, ” in litigating positions and enforce

ment actions. ReplyBrief for Petitioner 22. He al so argues that although the Department of Labor lacks the authority to issue regu lations im plementing §215(a)(3), it has such authority for s e veral similarly wordedprovisions and has interpreted t h ose statutes to include intracom

pany compl a ints. Id ., a t20. Even were §215(a)(3) ambiguous, deference would still

——————

4 Moreo v er, if the substance of the retaliation provision of any othe r Act could s h e dlight upon wha tCongres s s o ught to a c hieve i nthe FLSA, i twould be the rel a tively contemporaneous p r ovision of the Nation a lLabo rRelation s Ac t, §8(4), 4 9 St a t . 453, c o difiedat 2 9 U. S. C. §158( a)(4), wh ic hdid n o tc o v e rr e taliationforemploy ee-employ er complaints. S ee NLRBv. Scrivener , 405 U. S. 117 (197 2)

.7 Cite as: 56 3 U

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S CALIA , J., dis s e nting be unwarra nted. If we are to appl y our new ju risprudence that deference is app r opriate only when Congress ha s given the agency aut hority to make rules carr ying t h e force of law, see Gonzales v. Ore gon , 546 U. S. 243, 255 – 256 (2006), deference is improper here. The EEOC has no such authority. Al though the Secretar yof Labor and his subordinates have authority to issue regulations under various provisi o ns of th e FLSA, see, e.g. , §203( l); §206(a)(2), they have n o general authority to issue regula

tions interpreting the Act, and no specific authority to issue regulations interpreting §215(a)(3). Presumably for this reason, the Court’s opinion seems to suggest tha tonly so-called Skidmoredeference is appro

priate, see Skidmorev. Swift & Co. , 323 U. S. 134, 140 (1944). 5T h is doctrin e states th at agencies’ views a r e

“ ‘entitled to respect’ ” t o the extent they have “ ‘the powe r to persuad e.’ ” Chri stensen v. Harris County , 529 U. S. 576, 587 (2000) (quoting Skidmo re , sup ra, a t140). 6F o r

——————

5 Orperh aps n o t. Th e ac tu al qu an tu m of defer e n c e measu r ed ou t by the Court’s op inion is unclear—seemin gly intentionally so. The Cour t say s th at i ti s giv i ng“a deg r ee of weight” t othe Sec r e tar yand EEOC’ s views “given Congress’ delegation of en forcem e ntpo wers t ofeder a l administrativ eagencies.” An t e , at 12. But it n e v e rex pli c itlystate s th e level of deference applied, a n d in cludes a mysterious citation of United Statesv. Mea d Corp ., 533 U. S. 218 (20 0 1 ), alon gwith a par e n t h e tic a l say i ngthat “s ometime s

. . . judic i al deference [is] intend ed even in [the] absence of rulemaking authority.” Ant e , a t13. I s a y this is mys t eriou s bec a u s e Mead clea rly held t h a trulem a king a u t h orit y wa s neces s a ry for full Chevron deference , see Chevron U. S

. A. Inc

. v. Natural Resou r c e s Defense Council, Inc. , 467 U. S. 837 (1 98 4). I h av ec h ose nto in ter p r e t the Cour t as r e fer r i ngto Skidmoredeference , ra t h ert h a n Chevro n deference o rsomething in-between, in orderto minimi ze the Cour t’ s ongoing obfuscation of this once-clearar ea of admin i str a tiv el a w. Se e Mead , supra, at 24 5 (S CALIA , J., dis s e nting)

.

6 In m yview t h is doct rine (if itca n b eca lled t h a t) is incoherent , b o t h linguistically and practicall y. To defer is to subordi n ate one’s own judgment to another’s. If one has been p e rsuaded by another, so that one’s j u dgm e n ta ccords wit ht h e ot her’s , th ere is no roo mfor deferra l

— only for agree m ent. Speaki ng of “ Sk idm o re defere nce” t o a persuasive8 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. S CALIA , J., dis s e nting the reasons stated above, the agencies’ views here lackthe “power to p e rsuade.” II The Court’s opinion claims that whether §215(a)(3) covers intracompany complaints i s not fairly included in the question presented because the argume nt, although raised bel o w, was not made in Sa int-Gobain’s response to Kasten’s petition for certiorari. Citing this Court’s Rul e 15.2 and Caterpillar Inc. v. Lewi s , 519 U. S. 61, 75, n. 13 (1996), the opinion says that this Court does “not normally consider a s e parate leg a l question not raised in the cer t io

rari briefs.” Ante , at 15

. It regularlydoes so, however, under the circ umstances that obtain here. (Curiously enough , Caterpill ar , the case cited by the Court, was one inst ance.) Rule 15.2 is p e r
missive rather than m andatory: “Any objecti on to consid

eration of aquestion p r esented based on what occurred i n the proceedings below .

. . maybedeemed waived unles s called to the Court’s a ttention in the brief in opposition.” (Emphasis added.) Accordingly, t h e Court has often per

mitted part ies to defend a judg ment on grounds not raised in the brief in opposition whendoing so is “predicate to an intelligent resolution of the question presented, and there

fore fairly included therein.” Ohio v. Robinette , 519 U. S. 33, 38 (1996) (internal quotation marks omitted); see also Vancev. Te rraza s , 444 U. S. 252, 258–259, n. 5 (1980). Kasten’s p e tition forcertiorari phrases the question presented as follows: “Is an oral co mplaint of a violation of the Fair La bor Standa r ds Ac t prot ected condu ct underth e anti-retaliation provision, 29 U. S. C. §215(a)(3)?” Pet. fo r Cert. i

. Su r e ly the wor d“complain t” in this qu estion must be assigned an implied addressee. It presumably does not include a complaint to Judge Judy. And the o n ly plausible

—————— agency positio ndoes nothing but confuse.9 Cite as: 56 3 U

. S. ____ (2011)

S CALIA , J., dis s e nting addressee, given the facts of this case, is the employer. Saint-Gobain’s rewordi n g of the question presented in it s brief in opposition is ev en more specific: “H as an employee alleging solely that he orally ass e rted 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 Rul e 14.1(a), t h e question presented is “deemed to comprise every subsidiary ques

tion fairly included therein.” Whether intracompan y complaints are protecte d is at least subsidiary to Kasten’s formulation(and explicitly included in Sain t-Gobain’s). The question was als o decided by the courts below an d was briefed before this Court. It i s not clear what benefit additional briefing would provide. Moreover, whether §215(a)(3) covers intracompan y complaints is “predicate to an intelligent resol u tion of the question presented” in this case. The Court’s own opinio n demonstrates the point. Whileclaiming that it remain s an open question whether intraco mpany com p laints are covered, the opinion adopts a test for “filed any complaint” that assum e s a “yes” answer—an d that makes no sense otherwise. An employee, the Court says, is deemed to have “filed [a] complaint” only when “ ‘a reasonable, objec

tive person would have understoo d the employee’ to have ‘put the employer on notice that the employe e is asserti ng 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 Sai n tGobain, that if oral complaints are allowed, “employers too often will be left in a state of uncertainty about whether an employee .

. . is in f a ct making a complain t .

. . or just letting off steam.” Ante , at 11. Of course, if intracompan y complaints were excluded, th is con c ern would be nonexis

tent: Filing a complaint with a judicial or administrative body is quite obvious l y an unambiguous assertion of one’s rights. There wo uld be no need for lower courts to10 KASTEN v. SAINT-GOBAI N PERFORMANCE PLASTIC S C O RP. S CALIA , J., dis s e nting question w h ether a complaint is “ s ufficiently clear and de

tailed,” ante , at 12, car r ies the requisite “degr ee of formal

ity,” ante , at 11, or provides “fair notice,” ibid. , whatever those terms may require. The test the Court adopts amply disproves its conten

tion that “ w e can dec i de the oral/written q u estion sepa

rately,” ante , at 15. An d it makes little sens e to cons ider that question at allin the present case if neither oral no r written co mplaints to employers are protected, cf. United Sta t esv. 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 retalia tion provision covering complaints to employers if Congr e ss had enacted such a provision.