Kasten v. Saint-Gobain Performance Plastics Corp.

• Decision Date: 19 June 2008
• Docket Number: No. 07-cv-686-bbc.,07-cv-686-bbc.
• Parties: Kevin KASTEN, Plaintiff, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

619 F.Supp.2d 608

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

No. 07-cv-686-bbc.¹

United States District Court, W.D. Wisconsin.

June 19, 2008.

Adrianna Salsbery Haugen, James Kaster, Jessica Jean Clay, Paul J. Lukas, Sarah M. Fleegel, Nichols Kaster & Anderson, PLLP, Minneapolis, MN, for Plaintiff.

Anthony J. Sievert, Jeffrey A. McIntyre, Thomas P. Godar, Whyte Hirschboeck Dudek, Madison, WI, for Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

In December 2007 plaintiff Kevin Kasten filed this civil action alleging that defendant Saint-Gobain Performance Plastics Corporation's decision to terminate plaintiff's employment was a form of retaliation against him in violation of 29 U.S.C. § 215(a)(3). Jurisdiction is present. 28 U.S.C. § 1331. Currently before the court is defendant's motion for summary judgment, which will be granted. I conclude that plaintiff did not engage in any protected activity listed in § 215(a)(3). From both parties' proposed findings of fact, I find that the following facts are material and undisputed.

UNDISPUTED FACTS

Defendant Saint-Gobain Performance Plastics Corporation is a corporation that manufactures a variety of high-performance polymer products. Defendant's principal place of business is in Akron, Ohio; it maintains and operates a manufacturing and production facility in Portage, Wisconsin.

Plaintiff Kevin Kasten worked for defendant at its Portage facility from October 2003 until December 2006. He was an hourly manufacturing and production worker who worked both first and third shifts. He worked as a Fabricator, Mill Room Utility and Setup Utility.

On February 13, 2006, plaintiff received a "Disciplinary Action Warning Notice-Verbal Counseling Warning" from defendant because of several "issues" plaintiff had during January 2006 regarding punching in and out on the Kronos time clocks. (The parties do not submit facts regarding the exact nature of plaintiff's "issues.") The notice stated in part 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."

On August 31, 2006, plaintiff received a "Disciplinary Action Warning Notice-Step 2 Policy Violation-Written Warning" from defendant, again related to problems punching in and out on the Kronos time clocks. The notice stated in part that "[i]f the same or any other violation occurs in the subsequent 12-month period from this date [sic] will result in further disciplinary action up to and including termination." On November 10, 2006, plaintiff received a "Disciplinary Action Warning Notice-Step 3 Policy Violation-Written Warning" accompanied by a "One Day Disciplinary Suspension" from defendant for his failure to clock in and out on the Kronos time clocks on October 31, 2006. The notice stated in part that "if the same or any other violation occurs in the subsequent 12-month period from this date [sic] will result in further disciplinary action up to and including termination."

On December 6, 2006, defendant suspended plaintiff on the ground that he had violated defendant's policy regarding time clock punches for a fourth time. On December 11, 2006, defendant's Human Resources Manager, Dennis Brown, told plaintiff over the phone that defendant had decided to terminate his employment. On December 19, 2006, defendant's Human Resources Generalist, Lani Williams, wrote plaintiff a letter confirming his termination and explaining that plaintiff's termination was in response to his repeated punch in and punch out violations.

On September 12, 2007, plaintiff filed a wage and hour complaint against defendant with the Equal Rights Division of the Wisconsin Department of Workforce Development alleging that defendant had wrongfully terminated him. On December 5, 2007, plaintiff filed this lawsuit, alleging that defendant terminated his employment in violation of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3).

DISPUTED FACTS

The parties dispute whether plaintiff complained to his supervisors about the legality of the location of defendant's time clocks because the location meant that employees were not being paid for all time spent donning and doffing required protective gear. Some of plaintiff's specific allegations are that: (1) in September or October 2006 he told Dennis Woolverton that he believed the locations of defendant's time clocks were illegal; (2) at a meeting with Lani Williams (whose last name at the time was Wruck) he told her that the location of defendant's time clocks were illegal and that if defendant was challenged in court regarding time clock location "they would lose,"; (3) on three or four occasions during the last few months of 2006 he told April Luther that the locations of defendant's time clocks were illegal; (4) sometime in October 2006 he told Luther that he was thinking of starting a lawsuit about the location of defendant's time clocks; and (5) during the December 6, 2006, meeting regarding plaintiff's suspension, he told Dennis Brown and Mr. Stanford that he believed that the location of defendant's time clocks were illegal and that if defendant was challenged in court regarding time clock location it would lose.

Defendant denies that plaintiff ever told any of his supervisors or any human resources personnel that he believed that the time clock locations were illegal.

OPINION

Plaintiff brought this action against defendant under the Fair Labor Standard Act's anti-retaliation provision. 29 U.S.C. § 215(a)(3). Under that provision:

it shall be unlawful for any person—

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[.]

Defendant contends that it is entitled to summary judgment because even if the court were to accept as true plaintiff's proposed facts regarding his oral complaints to his supervisors, plaintiff did not file any complaint and thus, did not engage in any protected activity listed under § 215(a)(3). Conversely, plaintiff contends that his oral complaint to his supervisors served as an assertion of his rights under the FLSA and that such an assertion is a complaint protected by the anti-retaliation provision.

The issue is whether plaintiff's oral complaint is a protected activity under the FLSA anti-retaliation provision's "filed any complaint" language. I conclude that it is not. Although the plain language of § 215(a)(3) appears to delineate which activities trigger the protection of the statute, there is a split among the circuits regarding what form employee complaints must take to be protected under language of the statute. Jennifer Clemons, FLSA Retaliation: A Continuum of Employee Protection, 53 Baylor L.Rev. 535 (2001) (discussing different approaches taken by different circuit courts toward FLSA's anti-retaliation provision). The Court of Appeals for the Seventh Circuit has never addressed the issue directly. See Crowley v. Pace Suburban Bus Division of the Regional Transportation Authority, 938 F.2d 797, 798 n. 3 (7th Cir.1991) (noting that although other circuits had construed anti-retaliation provision broadly to cover activities not listed in language of provision, that issue was not being addressed in case before court); see also Sapperstein v. Hager, 188 F.3d 852, 857 (7th Cir.1999) (noting that language in anti-retaliation provision is very broad and that filing claim with state Department of Labor qualified as protected activity, but not discussing what other activities are protected under statute).

The disagreement among courts that have directly addressed the issue generally centers on whether an informal complaint triggers the statute's protection. At one end of the spectrum are the courts that have determined that § 215(a)(3) protects informal complaints under the courts' interpretation of the anti-retaliation provision as protecting any activity by a worker constituting an assertion of an FLSA right, including mere oral complaints to supervisors when the basis for the complaining concerns something regulated by the FLSA. For example, in Love v. RE/MAX of America, 738 F.2d 383, 387 (10th Cir.1984), the Court of Appeals for the Tenth Circuit interpreted the FLSA's anti-retaliation provision to apply "to the unofficial assertion of rights through complaints at work." In Equal Employment Opportunity Commission v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992), the Court of Appeals for the Sixth Circuit relied on Love in determining that the plaintiff's verbal complaint to her employer about being paid lower wages than male employees was a protected activity under the FLSA's anti-retaliation provision.

At the other end of the spectrum are the courts that have interpreted the retaliation provision to protect only the filing of formal complaints with a labor agency or a court. For example, in Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993), the Court of Appeals for the Second Circuit determined that an employee's oral complaint to a supervisor about deficient pay was not an activity protected under the "plain and...