Employee Who Made Oral Complaint Has FLSA Retaliation Claim
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Employee Who Made Oral Complaint Has FLSA Retaliation Claim

By Joanne Deschenaux  12/4/2012
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In a case sent back to the lower courts by the U.S. Supreme Court, the 7th U.S. Circuit Court of Appeals ruled that an employee at a polymer production plant in Wisconsin who was terminated two days after he made a verbal complaint about time clock locations has a triable retaliation claim under the Fair Labor Standards Act (FLSA).

Kevin Kasten brought an anti-retaliation lawsuit against his former employer, Saint-Gobain Performance Plastics Corp. He said that Saint-Gobain located its time clocks between the area where Kasten and other workers put on and took 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 requirements of the FLSA, according to Kasten. He said that he was discharged, because he complained orally to Saint-Gobain officials about the time clocks.

Saint-Gobain said that it terminated Kasten because he failed to record his comings and goings on a time clock despite repeated warnings.

Kasten sued, alleging that he was fired in violation of the FLSA’s anti-retaliation provisions. The district court entered summary judgment in Saint-Gobain’s favor, concluding that the act does not protect oral complaints. The 7th U.S. Circuit Court of Appeals affirmed, but the Supreme Court vacated the 7th Circuit decision. It noted that the only question before the court was whether an oral complaint of an FLSA violation was protected conduct under the statute’s anti-retaliation provision. The high court ruled that such a complaint might be protected but sent the case back to the district court to determine whether Kasten could proceed with his suit.

On remand, the district court ruled that Kasten’s oral complaints constituted protected activity under the FLSA because they gave Saint-Gobain Performance Plastics Corp. “fair notice” about Kasten’s assertion of his FLSA rights.

The district court granted summary judgment to Saint-Gobain again, however, holding that Kasten did not show the existence of a causal link between his complaints and his discharge.

The 7th Circuit reversed, finding a triable issue with respect to causation based on the temporal proximity between Kasten’s last complaint and his termination, and other evidence raising an inference of unlawful retaliation. This evidence included a potential warning from a supervisor that Kasten would be fired if he did not stop complaining and Saint-Gobain’s decision to change time clock locations on the same day it discharged Kasten.

The court concluded, also, that Kasten presented evidence that Saint-Gobain’s reason for firing him was pretextual, given the company’s changing explanations for his discharge.

Initially, Saint-Gobain stated that it had fired Kasten under its attendance policy, the court said. But when Kasten argued that he had not yet met the grounds for termination under the attendance policy and a state agency issued a probable cause finding against Saint-Gobain, the company then claimed it had fired Kasten under its corrective action program.

“Such apparent inconsistency is suggestive of pretext,” the court concluded. “Saint-Gobain’s inconsistent explanations reinforce other evidence of a retaliatory motive for Kasten’s discharge and accordingly permit Kasten to withstand a summary judgment motion.”

In addition, the 7th Circuit agreed with the district court that Kasten’s oral complaints constituted protected activity because they put Saint-Gobain on “fair notice” that he was invoking his FLSA rights, as required by the Supreme Court.

Kasten complained about time clock locations “on at least five separate occasions” and informed supervisors that he was considering suing Saint-Gobain, the court said.

“In light of these facts, which must be viewed in the light most favorable to Kasten at the summary judgment stage, we conclude that a reasonable employer in Saint-Gobain’s position would have received fair notice that Kasten was asserting rights under the FLSA,” the court said.

Kasten v. Saint-Gobain Performance Plastics Corp., 7th Cir., No. 12-1671 (Nov. 30, 2012).

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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