Category Archives: anti-retaliation

Is the anti-retaliation provision of the Fair Labor Standards Act limited to complaints that are in writing?

In Kasten v. Saint-Gobain Performance Plastics Corp. the United States Supreme Court was asked to decide whether an employee’s oral complaints triggered the anti-retaliation protections of the Fair Labor Standards Act (the “Act”), which sets forth employment rules concerning minimum wages, maximum hours, and overtime pay.  563 U.S. ______ (2011).

The anti-retaliation provision of the Act makes it unlawful

“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 [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”

29 U.S.C. §215(a)(3).

The Court had to decide whether the statutory term “filed any complaint” included oral as well as written complaints.  Kevin Kasten sued his former employer, Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”), following his termination for allegedly failing to record his comings and goings on the timeclock.  Kasten argued that he was really terminated in retaliation for making repeated oral complaints about the location of the timeclock.  Saint-Gobain’s timeclock was located between the area where Kasten and other workers put on and took off their work-related protective gear and the area where they performed their assigned tasks.  As a result, Kasten and the other workers did not receive credit for the time it took them to put on and take off their work clothes, which is contrary to the Act’s requirements.  In fact, in a separate lawsuit a District Court in Wisconsin held that Saint-Gobain’s failure to compensate its employees for the time it took to put on and take off work clothes violated the Act.  Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 954 (W.D.Wis. 2008).

Kasten repeatedly told Saint-Gobain about the timeclock’s unlawful location via Saint-Gobain’s internal grievance-resolution procedure and raised the issue with his shift supervisor.  Kasten told Saint-Gobain’s human resources manager that the timeclock’s location was illegal, that he was thinking about starting a lawsuit about the timeclock’s placement and that company would lose in court.  Kasten claimed in his lawsuit that it was this activity, and not his failure to use the timeclock, that caused Saint-Gobain to discipline and ultimately terminate him in December, 2006.

The District Court granted Saint-Gobain’s motion for summary judgment and dismissed Kasten’s lawsuit on the ground that the Act did not protect oral complaints.  On appeal, the United States Court of Appeals for the Seventh Circuit agreed that the Act did not apply to oral complaints and affirmed the District Court’s dismissal of Kasten’s lawsuit.  The United States Supreme Court agreed to hear Kasten’s appeal to determine whether “an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the [Act’s] anti-retaliation provision.”  Kasten, 563 U.S. at p.4.

In analyzing the statutory text, the Court considered some dictionary definitions of “file”, which used of the word “file” in connection with oral material, and common usage of the word by legislators, administrators, and judges, which sometimes use the word when referring to oral statements.  The Court noted that regulations promulgated by federal agencies sometimes permit complaints to be filed orally and that oral filings were a known phenomenon when the Act was passed.  The Court, however, determined that review of the statutory text alone was insufficient to provide a conclusive answer.

The Court next analyzed the Act’s objectives, which are to prohibit labor conditions that are detrimental to the minimum standard of living necessary for health, efficiency, and the general well-being of workers.  The Act relies upon information and complaints by employees that seek to enforce their rights under the Act.  The Act’s anti-retaliation provision serves to prevent employees from being fearful of economic retaliation and quietly accepting substandard working conditions.

The Court found no evidence in the Act’s legislative history supporting the position that Congress intended to limit the effectiveness of the Act by preventing those employees who cannot read or write from making complaints under the Act.  Limiting complaints under the Act to those made in writing would also prevent governmental agencies from using hotlines, interviews and other oral methods to take employee complaints.  Thus, the Court held, “to fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.  This standard can be met, however, by oral complaints, as well as by written ones.”  Id. at p.12.

Moreover, the Court noted that the Department of Labor has consistently held that the phrase “filed any complaint” covers oral, as well as written, complaints.  See e.g. Goldberg v. Zenger, 43 CCH LC ¶31,155, pp. 40,985, 40,986 (D.Utah 1961).  More recently, the Department of Labor set up a hotline for the purposes of receiving oral complaints.  The Equal Employment Opportunity Commission has set forth a similar view with regard to oral complaints in its Compliance Manual, Vol. 2, §8-II(B)(1), p. 8-3, and n. 12 (1998).

The Court concluded that the Court of Appeals erred in holding that oral complaints cannot fall within the phrase “filed any complaint” in the Act’s anti-retaliation provision.  As a result, the Court vacated the judgment in favor of Saint-Gobain, reinstated Kasten’s complaint and remanded the case to the District Court for trial.


© 2011 Nissenbaum Law Group, LLC

Does the anti-retaliation provision of New York City’s Human Rights Law protect employees who suffer retaliation for opposing discrimination against other employees?

On March 31, 2011, the New York Court of Appeals upheld a jury’s verdict in favor of two New York City police officers that claimed they were subject to retaliation for opposing discrimination against a third officer on the basis of that third officer’s perceived sexual orientation.  Albunio v. City of New York, 2011 WL 1157706 (2011).

In 2002, Captain Lori Albunio was the commanding officer of the Youth Services section of the New York City Police Department.  Lieutenant Thomas Connors was operations coordinator of the section and reported to Albunio.  Sergeant Robert Sorrenti applied for a transfer into the Youth Services section, was interviewed by Albunio and seemed poised to become the Youth Services section DARE officer, responsible for educating New York City school children about the dangers of drugs.  Albunio recommended Sorrenti for the DARE position to her supervisor, Inspector James Hall.  Hall decided to interview Sorrenti himself and did so with Albunio present.

According to Albunio, during that interview Hall aggressively questioned Sorrenti about his marital status; whether he had children; and about his relationship with another male officer to whom he had allegedly loaned money, suggesting that the relationship was more than a friendship.  After the interview, Hall told Albunio that Sorrenti didn’t seem quite right.  Hall later chose another officer for the DARE position and told Albunio that he would not trust Sorrenti working around children.

Several months later, Hall told Lieutenant Connors that there had to be something more to Sorrenti’s relationship with the officer to whom he loaned money and that Hall would not have been able to sleep at night if he knew Sorrenti was working with children.  Connors responded that he believed Sorrenti was more than qualified to work with children and showed Hall a favorable performance evaluation that Sorrenti recently received.  Following that conversation, Connors formed the opinion that Hall “believed that Sergeant Sorrenti was a child molester and homosexual.”  Id. at *2.

Later in 2002, Albunio learned that she was to be removed as the commanding officer of the Youth Services section for utilizing poor judgment when requesting personnel.  Hall cited her recommendation of Sorrenti as the prime example.  Albunio told Hall that Sorrenti was the better candidate for the DARE position and that she would recommend Sorrenti again if she had the chance to do it over.  Albunio was told it would be in her best interest to find another assignment.  She did, but it was a much less desirable assignment.

After Albunio told Connors that she was directed to find another assignment, Connors filed a complaint with the police department’s Office of Equal Employment Opportunity alleging that Hall discriminated against Sorrenti based upon Sorrenti’s sexual orientation.  After Hall learned of the complaint, Connors decided it was time to leave the Youth Services section.  However, while Connors remained with that section he was subject to several adverse employment actions.  For example, his geographical assignments and working hours were changed in unfavorable ways; and he was shunned and excluded from meetings with Hall and Hall’s subordinates.  When he was finally transferred, he received a less desirable assignment than he expected.

Albunio and Connors filed a lawsuit against the City of New York claiming they were victims of retaliation in violation of the New York City Human Rights Law, Administrative Code §8-107(7).  That section states,

“Retaliation. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment, housing, or a public accommodation, provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.”

New York City Administrative Code §8-107(7).

A trial was held and the jury found that the City retaliated against both Albunio and Connors and awarded each monetary damages.  The City appealed the jury’s verdict to the Appellate Division, which upheld the verdict in favor of Albunio and Connors.  The City appealed that decision to the New York Court of Appeals, the state’s highest appellate court.

The Court of Appeals noted that the issue was whether the record supported the jury’s finding that Albunio and Connors “opposed” the discrimination against Sorrenti based upon his sexual orientation.  The court was guided by New York’s Local Civil Rights Restoration Act of 2005 (“LCRRA”), which requires that “the provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.”  Id. at *4.  In other words, the court was required to construe Administrative Code §8-107(7) “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.  We interpret the word ‘opposed’ according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.”  Id. at *4.

According to the court, Connors clearly opposed the discrimination since he filed a discrimination complaint on Sorrenti’s behalf; there was evidence Hall knew of the complaint; and after filing the complaint Connors was subjected to a series of adverse employment actions.  The court similarly found that Albunio “opposed” the discrimination although she did not file a formal complaint.  Albunio “opposed” the discrimination against Sorrenti when she stated that Sorrenti was the better candidate and that she would choose him again if given another chance.  In essence, the court held that the jury could have found that Albunio made her disapproval of Hall’s action clear and voiced her opinion that it was wrong when she made those statements to Hall.

The Court of Appeals affirmed the decision of the Appellate Division and reinstated the jury’s verdict in favor of Albunio and Connors.

Download Albunio v. City of New York, 2011 WL 1157706 (2011)


© 2011 Nissenbaum Law Group, LLC