Of the Northern District of Illinois, sitting by designation. 

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2820

KEVIN KASTEN,

Plaintiff-Appellant,

v.

SAINT-GOBAIN PERFORMANCE

PLASTICS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-C-0686—Barbara B. Crabb, Chief Judge.

ARGUED APRIL 2, 2009—DECIDED JUNE 29, 2009

Before BAUER and FLAUM, Circuit Judges, and KAPALA,

District Judge.



FLAUM, Circuit Judge. Plaintiff Kevin Kasten appeals

the district court’s grant of summary judgment to defendant Saint-Gobain Performance Plastics Corporation

(“Saint-Gobain”). Kasten claims that the district court
2 No. 08-2820

erred in its interpretation of the Fair Labor Standards Act

when it determined that Kasten had not suffered retaliation within the meaning of the statute. For the reasons

explained below, we affirm the judgment of the

district court.

I. Background

Defendant Saint-Gobain is a corporation that manufactures a variety of high-performance materials at facilities

throughout the country. Plaintiff Kevin Kasten worked

in Saint-Gobain’s Portage, Wisconsin facility from

October 2003 to December 2006.

In order to receive their weekly paychecks, Saint-Gobain

hourly employees must use a time card to swipe in and

out of an on-sight Kronos time clock. On February 13,

2006, Kasten received a “Disciplinary Action Warning

Notice - Verbal Counseling Warning” from Saint-Gobain

because of several “issues” Kasten had with regard to

punching in and out on the Kronos time clocks. The

notice stated that “[i]f the same or any other violation

occurs in the subsequent 12-month period from this date

of verbal reminder, a written warning may be issued.”

Kasten signed the notice, acknowledging that he read

and understood it.

On August 31, 2006, Kasten received a written warning

from defendant, again related to swiping in and out

on the Kronos clocks. The notice stated that “[i]f

the same or any other violation occurs in the subsequent 12-month period from this date [sic] will result in
No. 08-2820 3

further disciplinary action up to and including termination.” Kasten signed the written warning, again acknowledging that he read and understood it.

On November 10, 2006, plaintiff received yet another

written warning from Saint-Gobain for failure to swipe

in and out, this time accompanied by a one day disciplinary suspension. The warning stated that “[t]his is the

last step of the discipline process” and that if another

violation occurred, further discipline, including termination, could result. Kasten signed the warning, again

acknowledging that he read and understood it.

Plaintiff alleges (though defendant disputes) that from

October through December, 2006, he verbally complained

to his supervisors about the legality of the location of SaintGobain’s time clocks. Specifically, Kasten claims that he

told his supervisors that the location of the Kronos

clocks prevented employees from being paid for time

spent donning and doffing their required protective

gear. Regarding his complaints, plaintiff alleges (1) that he

told Dennis Woolverton (his shift supervisor) that he

believed the location of defendant’s time clocks was

illegal; (2) that he told Lani Williams (a Human

Resources generalist) that the location of the time clocks

was illegal; (3) that he told April Luther (a “Lead Operator” and apparently another of Kasten’s supervisors) that

the location of the time clocks was illegal; and (4) that

he told Luther that he was thinking of commencing a

lawsuit regarding the location of defendant’s time clocks.

Saint-Gobain denies that Kasten ever told any of his

supervisors or any human resources personnel that he

believed that the clock locations were illegal.
4 No. 08-2820

On December 6, 2006, Saint-Gobain suspended Kasten

on the ground that he had violated its policy regarding

time clock punching for the fourth time. Kasten claims

that at a meeting regarding this suspension, he again

verbally told his supervisors that he believed the location of the clocks was illegal and that if he challenged the

company in court regarding the location of the clocks the

company would lose. Saint-Grobain disputes that Kasten

complained about the time clocks at this meeting. On

December 11, 2006, Human Resources Manager Dennis

Brown told Kasten over the phone that Saint-Gobain

had decided to terminate his employment.

Kasten filed suit under the FLSA, claiming that he had

been terminated in retaliation for his verbal complaints

regarding the location of the time clocks. The district court

granted summary judgment to defendant, finding that

Kasten had not engaged in protected activity because

he had not “filed any complaint” about the allegedly

illegal location of the time clocks. Kasten appeals.

II. Discussion

The FLSA provides private remedies for employees

who have suffered adverse employment actions as a

result of engaging in certain protected activities. Section

215(a)(3) of the statute defines the scope of protected

activity. It states, in relevant part:

[I]t shall be unlawful for any person . . . to discharge

or in any other manner discriminate against any

employee because such employee has filed any com-
No. 08-2820 5

plaint or instituted or caused to be instituted any

proceeding under or related to this chapter, or has

testified or is about to testify in any such proceeding,

or has served or is about to serve on an industry

committee.

29 U.S.C. § 215(a)(3).

Here, Kasten seeks to establish a claim for retaliation

based solely on his allegation that he “filed complaints”

with his employers regarding the location of the time

clocks. To determine whether Kasten engaged in protected activity, we must answer two questions about the

scope of the FLSA’s retaliation provision: first, whether

intra-company complaints that are not formally filed

with any judicial or administrative body are protected

activity; and second, whether unwritten verbal complaints are protected activity.

The district court found that intra-company complaints

were protected activity but concluded that unwritten

verbal complaints were not protected activity. Kasten

argues, along with a supporting amicus brief filed by

the U.S. Secretary of Labor, that we should reverse

the second portion of the district court’s ruling holding

that unwritten complaints are not protected activity

under the statute. They claim that the FLSA retaliation

provision should be read expansively to protect employees who make only internal, unwritten objections

to their employers.

We review the district court’s grant of summary judgment to defendant de novo and view the evidence in

the light most favorable to the appellant. Hancock v.

Potter, 531 F.3d 474, 478 (7th Cir. 2008).
6 No. 08-2820

It appears that the parties in those cases did not raise the 1

issues we are considering in this appeal.

A. Internal Complaints

The Seventh Circuit has not directly addressed whether

internal complaints are protected activity under the

FLSA’s retaliation provision, though we have reviewed

two cases involving internal complaints without commenting on the matter. See Scott v. Sunrise Health Care

Corp., 195 F.3d 938, 940-41 (7th Cir. 1999) (affirming

dismissal of FLSA retaliation case because plaintiff had

not shown a causal connection between her complaints

and her later discharge); see also Shea v. Galaxie Lumber

Constr. Co., 152 F.3d 729, 731, 734-36 (7th Cir. 1998) (reversing a denial of punitive damages in a case where an

employee had been discharged after complaining to the

company president).1

Statutory interpretation begins with “the language of

the statute itself [and] [a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Sapperstein v. Hager, 188

F.3d 852, 857 (7th Cir. 1999) (internal quotation marks and

citation omitted) (interpreting retaliation provision of

FLSA but not discussing whether internal complaints

were protected conduct); see also Consumer Prod. Safety

Comm’n v. GTE Sylvania, 447 U.S. 102, 107 (1980). Here, the

plain language of the statute indicates that internal, intracompany complaints are protected. The retaliation provision states that it is “unlawful for any person to discharge . . . any employee because such employee has
No. 08-2820 7

filed any complaint . . . .” 29 U.S.C. § 215(a)(3) (emphasis

added). As Kasten points out, the statute does not limit

the types of complaints which will suffice, and in fact

modifies the word “complaint” with the word “any.”

Thus, the language of the statute would seem to include

internal, intra-company complaints as protected activity.

The majority of circuit courts considering the question

have also found that “any complaint” includes internal

complaints. See Hagan v. Echostar Satellite, LLC, 529 F.3d

617, 625 (5th Cir. 2008) (internal complaint constitutes

protected activity); Moore v. Freeman, 355 F.3d 558 (6th

Cir. 2004) (informal complaints are protected activity);

Lambert v. Ackerly, 180 F.3d 1004, 1004 (9th Cir. 1999)

(section 15(a)(3) protects “employees who complain

about violations to their employers”); Valerio v. Putnam

Associates, Inc., 173 F.3d 35, 41 (1st Cir. 1999) (“By failing

to specify that the filing of any complaint need be with

a court or an agency, and by using the word ‘any,’ Congress left open the possibility that it intended ‘complaint’

to relate to less formal expressions of protest . . . conveyed

to an employer.”); EEOC v. White & Son Enterprises, 881

F.2d 1006, 1011 (11th Cir. 1989) (employees’ internal

complaints to supervisor about unequal pay were assertions of rights under the Equal Pay Act, part of the

FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383,

387 (10th Cir. 1984) (same); but see Ball v. Memphis Bar-B-Q

Co., 228 F.3d 360, 363-365 (4th Cir. 2000) (holding that

29 U.S.C. § 215(a)(3) does not protect internal complaints).

Because we conclude, in line with the vast majority of

circuit courts to consider this issue, that the plain
8 No. 08-2820

language of 29 U.S.C. § 215(a)(3) includes internal complaints as protected activity, we affirm the judgment of

the district court in this regard.

B. Unwritten Complaints

The next question pertinent to this appeal is whether

unwritten, purely verbal complaints are protected

activity under the statute.

Again, we start with the language of the statute.

Sapperstein, 188 F.3d at 857. The FLSA’s retaliation provision prohibits “discharg[ing] . . . any employee because

such employee has filed any complaint . . . .” 29 U.S.C.

§ 215(a)(3) (emphasis added). The district court reasoned:

Expressing an oral complaint is not the same as filing

a complaint. By definition, the word “file” refers to

“a collection of papers, records, etc., arranged in a convenient order,” Random House Webster’s College

Dictionary 489 (2d ed. 1999), or, when used in verb

form as it is in the statute, “[t]o deliver (a paper or

instrument) to the proper officer so that it is

received by him to kept on file, or among the records

of his office,” Webster’s New International Dictionary

of the English Language 945 (2d ed. 1958). One

cannot “file” an oral complaint; there is no document,

such as a paper or record, to deliver to someone

who can put it in its proper place.

Plaintiff disagrees with this interpretation. He argues

that “to file” is a broad term that has several meanings,

including, generally, “to submit.”
No. 08-2820 9

2 The Secretary of Labor claims that because “it is not clear from

the phrase ‘file any complaint’ that a complaint must be in

writing, the Secretary’s reasonable interpretation that both oral

and written complaints are protected is entitled to Skidmore

deference.” However, the Secretary’s interpretation of “filed

any complaint” appears to rest solely on a litigating position

rather than on a Department of Labor regulation, ruling, or

administrative practice, and is therefore not entitled to deference. See Smiley v. Citibank, 517 U.S. 735, 741 (1996) (“[W]e

deny deference ‘to agency litigating positions that are wholly

unsupported by regulations, rulings, or administrative practice.’ The deliberateness of such positions, if not indeed

their authoritativeness, is suspect.”) (citing Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988)).

Looking only at the language of the statute, we believe

that the district court correctly concluded that unwritten,

purely verbal complaints are not protected activity. The

use of the verb “to file” connotes the use of a writing.

Webster’s Ninth New Collegiate Dictionary defines the

verb “to file” as

1. to arrange in order for preservation and reference

<“file letters”> 2. a: to place among official records as

prescribed by law <“file a mortgage”> b: to perform

the first act of (as a lawsuit) <“threatened to file

charges against him”> 

This definition accords with what we believe to be the

common understanding of the verb “to file.” Although

Kasten and the Secretary of Labor claim that “to file” can

mean, generally, “to submit,” this seems to us overbroad.2

If an individual told a friend that she “filed a complaint
10 No. 08-2820

with her employer,” we doubt the friend would understand her to possibly mean that she merely voiced displeasure to a supervisor. Rather, the natural understanding of the phrase “file any complaint” requires the

submission of some writing to an employer, court, or

administrative body. See United States v. Bank of

Farmington, 166 F.3d 853, 860 (7th Cir. 1999) (“Words in

a statute are to be given their plain and ordinary meaning.”) (citing United States v. James, 478 U.S. 597, 604 (1986)).

Other circuit courts that have tackled this issue are

split. The Fourth Circuit found that verbal complaints

were not protected activity in Ball v. Memphis Bar-B-Q Co.,

Inc., 228 F.3d 360, 364 (4th Cir. 2000). The court recognized

that the FLSA’s “statutory language clearly places limits

on the range of retaliation proscribed by the act.” Specifically, in interpreting the “testimony” clause of the

FLSA’s retaliation provision, the Fourth Circuit held that

the FLSA “prohibits retaliation for testimony given or

about to be given but not for an employee’s voicing of a

position on working conditions in opposition to an employer.” Id. (emphasis added). Although the Fourth

Circuit acknowledged that the retaliation in that case—

which followed an employee’s statement to the company

president that, if he were deposed in a lawsuit, he

would not testify to the president’s suggested version of

events—was “morally unacceptable,” the court concluded

that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55

(2d Cir. 1993) (“The plain language of this provision

limits the cause of action to retaliation for filing formal
No. 08-2820 11

The plaintiff and Secretary of Labor cite Lambert v. Ackerley,

3

180 F.3d 997 (9th Cir. 1999) and Love v. RE/MAX of America, Inc.,

738 F.2d 383 (10th Cir. 1984) to support their contention that

unwritten complaints are covered by the statute. However,

although Ackerley and Love contain favorable language for

(continued...)

complaints, instituting a proceeding, or testifying, but does

not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from

these decisions because many of them do not specifically

state whether the complaint in question was written or

purely verbal, and none discusses the statute’s use of

the verb “to file” and whether it requires a writing. See

EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90

(6th Cir. 1992) (holding, without discussion of the verbal/written distinction, that plaintiff’s apparently oral

complaints to supervisors were protected activity);

EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th

Cir. 1989) (holding, without discussion of the verbal/

written distinction, that plaintiffs’ oral complaints

were protected activity); Brock v. Richardson, 812 F.2d 121,

125 (8th Cir. 1987) (holding, without discussion of the

verbal/written distinction, that defendant’s mistaken

belief that plaintiff had made apparently oral complaints

to supervisors was grounds for suit); Brennan v. Maxey’s

Yamaha, 513 F.2d 179, 183 (8th Cir. 1975) (holding, without

discussion of the verbal/written distinction, that employee’s “voicing” of concern was protected activity).3
12 No. 08-2820

(...continued) 3

their argument, see Ackerley at 1008 (“[I]t is clear that so long

as an employee communicates the substance of his allegations

to the employer . . . he is protected by section 215(a)(3)); Love,

at 387 (“the unofficial assertion of rights through complaints

at work” is protected activity); those cases concerned written

complaints filed with employers.

Despite these contrary findings by some other circuits,

our interpretation of the phrase “file any complaint” is

confirmed by the fact that Congress could have, but did

not, use broader language in the FLSA’s retaliation provision. For example, analogous provisions in other

statutes, including Title VII and the Age Discrimination

in Employment Act, forbid employers from retaliating

against any employee who “has opposed any practice”

that is unlawful under the statutes. See 42 U.S.C. § 2000e3(a); 29 U.S.C. § 623(d). This broader phrase, “opposed

any practice,” does not require a “fil[ing],” and has been

interpreted to protect verbal complaints. See, e.g., Kotcher

v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65

(2d Cir. 1992). Congress’s selection of the narrower “file

any complaint” language in the FLSA thus appears to

be significant. See Ball, 228 F.3d at 364 (noting that “Congress has crafted . . . broader anti-retaliation provisions

elsewhere” but “the cause of action for retaliation under

the FLSA is much more circumscribed”); Genesee

Hospital, 10 F.3d at 55 (noting that the FLSA uses

narrower language in its retaliation provision than

Title VII).

Finally, we are aware that “ ‘the remedial nature of the

[FLSA] . . . warrants an expansive interpretation of its
No. 08-2820 13

provisions . . . . ’ ” Sapperstein, 188 F.3d at 857 (quoting

Herman v. RSR Security Services, 172 F.3d 132, 139 (2d Cir.

1999)). But expansive interpretation is one thing; reading

words out of a statute is quite another. Because we

believe that the FLSA’s use of the phrase “file any complaint” requires a plaintiff employee to submit some

sort of writing, we agree with the district court’s conclusion that Kasten’s alleged complaints were not protected activity under the statute.

III. Conclusion

For the reasons explained above, we affirm the judgment

of the district court.

6-29-09