Category Archives: united states supreme court

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.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Under what circumstances may a hospital be held liable for discrimination against employees who undertake military service?

On March 1, 2011, the United States Supreme Court was asked to decide whether an employer was liable for discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) for firing a hospital employee that was also a member of the United States Army Reserve.  Staub v. Proctor Hospital, No. 09-400, 2011 WL 691244 (2011).

Vincent Staub worked as an angiography technician at Proctor Hospital (the “Hospital”) until he was fired in 2004.  The Hospital fired Staub for leaving his desk without permission in violation of a disciplinary notice he previously received called a “Corrective Action.”  Staub sued the hospital claiming that he was discharged due to his military obligations in violation of the USERRA.

A trial was held and the jury found in favor of Staub.  The Hospital moved for judgment as a matter of law or for a new trial.  The United States District Court for the Central District of Illinois denied the Hospital’s motion.  The Hospital appealed that decision to the United States Court of Appeals for the Seventh Circuit which reversed the decision of the District Court, granting the Hospital’s motion for judgment as a matter of law and dismissing Staub’s complaint.  The United States Supreme Court agreed to hear Staub’s appeal to “consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.”  Id. at *2.

In January 2004, Staub was issued a disciplinary warning called a “Corrective Action” by his immediate supervisor, Janice Mulally, for allegedly leaving his work area without permission.  Staub disputed the “Corrective Action” on two grounds: the rule Mulally relied upon did not exist and, even if it did, Staub did not leave his work area.

In April 2004, Staub was, once again, accused of leaving his work area without permission.  Staub denied the allegation and claimed he left Mulally’s supervisor, Michael Korenchuk, a voice mail notification that he was leaving his work area.  Linda Buck, the Hospital’s vice president of human resources, relied on Korenchuk’s accusations and, after reviewing Staub’s personnel file, decided to fire Staub.  The official reason for Staub’s firing was that he ignored the directive of the January “Corrective Action.”  Staub challenged his firing through the Hospital’s grievance process claiming that Mulally fabricated the allegation underlying the “Corrective Action” out of hostility toward Staub’s military obligations.  Despite Staub’s claims, Buck refused to change her decision.

Staub thereafter sued the Hospital under the USERRA, which states:

A person who is a member of … or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership … or obligation.” 38 U.S.C. §4311(a).

An employer shall be considered to have engaged in actions prohibited … under subsection (a) if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.  38 U.S.C. §4311(c).

The Supreme Court determined from the evidentiary record that Mulally and Korenchuk were hostile to Staub’s military obligations.  The Court accepted as true Staub’s allegations that Mulally scheduled Staub for additional shifts without notice so that he could “pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.”  Id. at *2.  Mulally also told one of Staub’s co-workers that his military duty “had been a strain on the department” and asked that co-worker to help Mulally “get rid of him [Staub].”  Id.  Korenchuk referred to Staub’s military obligations as “a bunch of smoking and joking and a waste of taxpayer’s money.”  Id.  Korenchuk was also aware that Mulally was “out to get” Staub.  Id.

The Supreme Court determined that it was necessary to construe the phrase, “motivating factor in the employer’s action.”  Id. at *4.  The problem arises when the company official making the adverse employment decision “has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.”  Id.  The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  Id. at *6.

Applying that analysis to the facts, the Supreme Court decided to reverse the Court of Appeals decision dismissing Staub’s complaint.  It found that both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that caused Buck to fire Staub.  There was evidence that Mulally and Korenchuk were motivated by hostility toward Staub’s military obligations.  There was also evidence that the actions of Mulally and Korenchuk were “causal factors underlying Buck’s decision to fire Staub” as Buck clearly relied upon the allegation that Staub ignored the January “Corrective Action.”  Id.  Finally, there was evidence that both Mulally and Korenchuk intended to get Staub fired.  Id.  The Supreme Court remanded the case to the Court of Appeals so that court could determine whether a new trial was necessary.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC