Kasten v. Saint–Gobain Performance Plastics Corp.
| Decision Date | 30 November 2012 |
| Docket Number | No. 12–1671.,12–1671. |
| Citation | 703 F.3d 966 |
| Parties | Kevin KASTEN, Plaintiff–Appellant, v. SAINT–GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
James H. Kaster (argued), Attorney, Minneapolis, MN, for Plaintiff–Appellant.
Thomas P. Godar (argued), Attorney, Whyte, Hirschboeck & Dudek S.C., Madison, WI, for Defendant–Appellee.
Before BAUER, FLAUM, and WOOD, Circuit Judges.
Kevin Kasten sued his employer, Saint–Gobain Performance Plastics Corporation (“Saint–Gobain”), alleging unlawful retaliation for lodging oral complaints regarding the location of time clocks under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3). Kasten complained that Saint–Gobain's time clocks were placed in locations which caused him to frequently forget to punch in, notifying his supervisors on at least five occasions that the location away from the donning and doffing area was “illegal.” Kasten failed to punch in on several occasions, violating company policy. He was suspended and ultimately terminated. The district court granted summary judgment for Saint–Gobain on the ground that oral complaints do not constitute protected activity under the FLSA, and we affirmed the decision. On certiorari, the Supreme Court vacated and remanded our decision, holding that oral complaints may qualify as protected activity where they provide “fair notice” that an employee is asserting his rights under the FLSA. Kasten v. Saint–Gobain Performance Plastics Corp., ––– U.S. ––––, 131 S.Ct. 1325, 1334, 179 L.Ed.2d 379 (2011). On remand, the district court concluded that Kasten's oral complaints did in fact provide Saint–Gobain with “fair notice” that he was asserting rights under the FLSA, but concluded that Kasten had failed to create a dispute of material fact regarding causation. Accordingly, the court granted summary judgment in Saint–Gobain's favor. Because Kasten has provided evidence which would support a jury inference of retaliation, we reverse the district court's grant of summary judgment in Saint–Gobain's favor and remand for further proceedings.
Saint–Gobain manufactures a variety of high performance polymer products. Kasten worked for Saint–Gobain at its Portage, Wisconsin manufacturing and production facility from October 2003 through December 2006. Kasten held multiple positions as an hourly manufacturing and production employee.
Saint–Gobain requires employees like Kasten to punch in and out of its time clocks to receive a weekly paycheck. The Saint–Gobain employee policy handbook explains the existence of a “Corrective Action Program” that provides for disciplinary action up to and including termination for employees who fail to punch in and out correctly. The program's procedures typically begin with a verbal reminder, progress to written warnings, and conclude with termination. Under the Corrective Action Program, an employee can be terminated after receiving four disciplinary actions within a twelve-month period.
In addition, Saint–Gobain's handbook outlines a distinct “Attendance Policy” applicable to unexcused absences and tardiness. If an employee punches in late because he arrived at work late, that employee would have violated the Attendance Policy. However, if the employee arrived at work on time and simply forgot to punch in, that employee would have violated the time clock policy and would be subject to the Corrective Action Program. Under the Attendance Policy, an employee receives a point for every two violations. If an employee receives seven points under the Attendance Policy within a twelve-month period, he could be terminated according to that policy.
During Kasten's 39 months of employment, he received the following overall ratings on his performance appraisals: “Very Good” on March 19, 2003; “Good” on May 5, 2003; “Good” on December 8, 2003; “Good” on May 3, 2004; and “Good” on March 30, 2005. However, Saint–Gobain also formally disciplined Kasten on eleven occasions for violations of its employee policies. On December 30, 2003, February 13, 2004, and January 20, 2006, Saint–Gobain issued Kasten disciplinary action warning notices for Attendance Policy violations. On April 5, 2004, June 1, 2004, September 28, 2006, and October 31, 2006, Saint–Gobain issued him disciplinary action warning notices for violations of its safety and accountability policies.
On February 13, 2006, Kasten received a “disciplinary action warning notice—verbal counseling warning” from Saint–Gobain because of several “issues” relating to punching in and out on the time clocks during January 2006. This 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.” On August 31, 2006, Kasten received a “disciplinary action warning notice—step 2 policy violation—written warning” from Saint–Gobain, again regarding problems punching in and out on the 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 [it] will result in further disciplinary action up to and including termination.”
The parties dispute whether Kasten told his supervisors that the location of Saint–Gobain's time clocks was illegal after he received these two disciplinary warnings. Kasten alleges that he complained multiple times that the location of the clocks was illegal, causing him to miss punches. Specifically, he alleges that in September or October 2006, he told his Shift Supervisor, Dennis Woolverton, that he believed the time clock location was illegal. He also alleges that on three or four occasions between September and December 2006 he told third Shift Lead Operator April Luther about his belief that the time clock location was illegal and that he was considering starting a lawsuit about it. Saint–Gobain alleges that Kasten's complaints instead focused on the inconvenience of the time clock location.
Management at Saint–Gobain had internal discussions regarding the legality of the time clock location. On September 29, 2006, Human Resources Manager Dennis Brown emailed Plant Manager Daniel Tolles, Human Resources Generalist Lani Williams, and Plant Engineer Lance DeLaney regarding the time clocks. Brown wrote in part:
[a]s you know we need to move our Kronos clocks to ensure that we are in compliance with Wage and Hour law which states that employees are to be paid for the time used to gown/prepare for work. Lani and I walked out to review our current set-up and to determine what we should do to become compliant.
On November 10, 2006, Kasten received a “disciplinary action warning notice—step 3 policy violation—written warning” and a one-day disciplinary suspension for his failure to clock in and out on the 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 [it] will result in further disciplinary action up to and including termination.” Kasten served his one-day suspension on November 16, 2006. On (or around) November 18, 2006, Kasten forgot to punch in after returning from lunch. Soon after, Kasten asked Luther about having a potluck meal at work, stating that he was probably going to be fired over his most recent missed punch.
On December 6, 2006, Saint–Gobain suspended Kasten on the ground that he had violated the time clock punches policy a fourth time. Kasten alleges that before the meeting regarding his suspension, Woolverton stopped him and said, “just lay down and tell them what they want to hear, [they] can probably save your job.” Saint–Gobain denies that Woolverton made such a statement. At the meeting, Kasten asked whether the location of the clocks was a “legal issue” for the company. Kasten alleges, and Saint–Gobain denies, that he told Brown and Operations Manager Steven Stanford that he believed the location of the time clocks was illegal and that Saint–Gobain would lose if it was challenged in court.
Kasten alleges that on December 8, 2006, he had a phone conversation with Williams in which he told her that he thought the location of the time clocks was illegal and that “if they were challenged in court, they would lose.” That same day, Luther emailed Brown regarding the conversation, stating that “he made the comment to me that if he does get fired his name will be widely known as he has many things in the works.” On Saturday, December 9, 2006, Kasten called Shift Supervisor Mary Riley and asked whether she had read any articles about a class action lawsuit and time clock punches. Riley then emailed the Human Resources Manager and Human Resources Generalist the following:
Kevin Kasten called me here at work today about 3:45 PM to ask me if I had read any articles here about a class action suit and punches. I told him I hadn't read anything here and said goodbye.
Kasten alleges that the Human Resources Manager forwarded this email to the Operations Manager and Plant Manager on Monday morning, December 11, 2006. Later that same day, Brown told Kasten over the phone that Saint–Gobain had decided to terminate his employment. Kasten alleges that the Operations Manager and Plant Manager participated in the decision to terminate his employment. Saint–Gobain's time clocks were also moved closer to the donning and doffing area on that same day.
When asked whether the conversation in which Saint–Gobain decided to terminate Kasten “involved the question Mr. Kasten asked about whether the location of the time clock was a legal issue,” the Human Resources Manager acknowledged that “it's likely that it came up.” Kasten further alleges that management personnel discussed Kasten's threat of a potential lawsuit related to the location of the time clocks. On December 19, 2006, Williams wrote Kasten a letter...
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