KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTICS CORP.
No. 09-834
Supreme Court of the United States
Argued October 13, 2010-Decided March 22, 2011
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and
James H. Kaster argued the cause for petitioner. With him on the briefs were Adrianna S. Haugen and Eric Schnapper.
Jeffrey B. Wall argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Acting Solicitor General Katyal, Deputy Solicitor General Kneedler, M. Patricia Smith, Mary J. Rieser, and P. David Lopez.
Carter G. Phillips argued the cause for respondent. With him on the brief were Eric D. McArthur, Jeffrey A. McIntyre, Thomas P. Godar, and Barbara J. Zabawa.*
JUSTICE BREYER delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (Act) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay.
“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.”
§ 215(a)(3) (emphasis added).
We must decide whether the statutory term “filed any complaint” includes oral as well as written complaints within its scope. We conclude that it does.
I
The petitioner, Kevin Kasten, brought this antiretaliation lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Kasten says that Saint-Gobain located its timeclocks between the area where Kasten and other workers put on (and take 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 Act‘s requirements. In a related suit the District Court agreed with Kasten, finding that Saint-Gobain‘s “practice of not compensating ... for time spent donning and doffing certain required protective gear and walking to work areas” violated the Act. Kasten v. Saint-Gobain Performance Plastics Corp., 556 F. Supp. 2d 941, 954 (WD Wis. 2008). In this suit Kasten claims unlawful retaliation. He says that Saint-Gobain discharged him because he orally complained to Saint-Gobain officials about the timeclocks.
In particular, Kasten says that he repeatedly called the unlawful timeclock location to Saint-Gobain‘s attention-in accordance with Saint-Gobain‘s internal grievance-resolution procedure. See Brief for Petitioner 4 (quoting Saint-Gobain‘s Code of Ethics and Business Conduct as imposing upon every employee “the responsibility to report ... suspected violations of ... any applicable law of which he or she becomes aware“); id., at 4-5 (quoting Saint-Gobain‘s Employee Policy Handbook as instructing employees with
Kasten adds that he “raised a concern” with his shift supervisor that “it was illegal for the time clocks to be where they were” because of Saint-Gobain‘s exclusion of “the time you come in and start doing stuff“; he told a human resources employee that “if they were to get challenged on” the location in court, “they would lose“; he told his lead operator that the location was illegal and that he “was thinking about starting a lawsuit about the placement of the time clocks“; and he told the human resources manager and the operations manager that he thought the location was illegal and that the company would “lose” in court. Record in No. 3:07-cv-00686-bbc (WD Wis.), Doc. 87-3, pp. 31-34 (deposition of Kevin Kasten). This activity, Kasten concludes, led the company to discipline him and, in December 2006, to dismiss him.
Saint-Gobain presents a different version of events. It denies that Kasten made any significant complaint about the timeclock location. And it says that it dismissed Kasten simply because Kasten, after being repeatedly warned, failed to record his comings and goings on the timeclock.
For present purposes we accept Kasten‘s version of these contested events as valid. See Scott v. Harris, 550 U. S. 372, 380 (2007). That is because the District Court entered summary judgment in Saint-Gobain‘s favor. 619 F. Supp. 2d 608, 610 (WD Wis. 2008). And it did so, not because it doubted Kasten‘s ability to prove the facts he alleged, but because it thought the Act did not protect oral complaints. Id., at 611-613. On appeal, the Seventh Circuit agreed with the District Court that the Act‘s antiretaliation provision does not cover oral complaints. 570 F. 3d 834, 838-840 (2009).
Kasten sought certiorari. And in light of conflict among the Circuits as to whether an oral complaint is protected, we granted Kasten‘s petition. Compare Hagan v. Echostar Satellite, L. L. C., 529 F. 3d 617, 625-626 (CA5 2008) (antiretaliation provision covers oral complaints); Lambert v. Ackerley, 180 F. 3d 997, 1007 (CA9 1999) (en banc) (same), with Lambert v. Genesee Hospital, 10 F. 3d 46, 55-56 (CA2 1993) (antiretaliation provision does not cover informal complaints to supervisors). See also Pacheco v. Whiting Farms, Inc., 365 F. 3d 1199, 1206 (CA10 2004) (antiretaliation provision covers unofficial assertion of rights); EEOC v. White & Son Enterprises, 881 F. 2d 1006, 1011-1012 (CA11 1989) (same); Moore v. Freeman, 355 F. 3d 558, 562-563 (CA6 2004) (assuming without discussion that oral complaints are covered); Brennan v. Maxey‘s Yamaha, Inc., 513 F. 2d 179, 181 (CA8 1975) (same).
II
The sole question presented is whether “an oral complaint of a violation of the Fair Labor Standards Act” is “protected conduct under the [Act‘s] anti-retaliation provision.” Pet. for Cert. i. The Act protects employees who have “filed any complaint,”
A
We begin with the text of the statute. The word “filed” has different relevant meanings in different contexts. Some dictionary definitions of the word contemplate a writing. See, e. g., Webster‘s New International Dictionary 945 (2d ed. 1934) (def. 4(a)) (to file is to “deliver (a paper or instrument) to the proper officer so that it is received by him to be kept on file, or among the records of his office” (emphasis added)); Webster‘s Ninth New Collegiate Dictionary 462 (1983) (def. 2(a)) (one definition of “file” is “to place among official records as prescribed by law“).
But other dictionaries provide different definitions that permit the use of the word “file” in conjunction with oral material. One can, for example, file an oral statement that enters a matter “into the order of business.” 1 Funk & Wagnalls New Standard Dictionary of the English Language 920 (rev. ed. 1938) (def. 2) (to file is to “present in the regular way, as to a judicial or legislative body, so that it shall go upon the records or into the order of business“). This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints. Cf. Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 277 (2009) (looking for the “limits” of a linguistic phrase rather than what “exemplif[ies]” its application).
In addition to the dictionary definitions, we have found that legislators, administrators, and judges have all sometimes used the word “file” in conjunction with oral statements. Thus state statutes sometimes contemplate oral filings. See, e. g.,
Regulations promulgated by various federal agencies sometimes permit complaints to be filed orally. See, e. g.,
And a review of contemporaneous judicial usage, cf. Utah v. Evans, 536 U. S. 452, 475 (2002), shows that oral filings were a known phenomenon when the Act was passed. See, e. g., Reed Oil Co. v. Cain, 169 Ark. 309, 312, 275 S. W. 333, 334 (1925) (“appellee filed ... an oral complaint“); Tingler v. Lahti, 87 W. Va. 499, 503, 105 S. E. 810, 812 (1921) (“complaint subsequently filed, either oral or written“); Ex parte Mosgrove, 47 Okla. Crim. 40, 287 P. 795 (1930) (only “complaint ... filed against him” was “oral complaint of the town marshal“); Indian Fred v. State, 36 Ariz. 48, 52-53, 282 P. 930, 932 (1929) (“filed an oral motion to quash“); Dunn v. State, 60 Okla. Crim. 201, 203, 63 P. 2d 772, 773 (1936) (“filed an oral demurrer“); Morrison v. Lewis, 58 Ga. App. 677, 199 S. E. 782 (1938) (“filed an oral motion” demurring); Brock v. Cullum Bros., 263 S. W. 335 (Tex. Civ. App. 1924) (“filed an oral motion to quash“); Fike v. Allen, 269 S. W. 179, 180 (Tex. Civ. App. 1925) (“filed oral pleadings“).
Filings may more often be made in writing. See, e. g., Ritter v. United States, 28 F. 2d 265, 267 (CA3 1928) (finding words “file a claim for refund” to require a written request in context of Tax Code). But we are interested in the filing of “any complaint.” So even if the word “filed,” considered alone, might suggest a narrow interpretation limited to writ-ings, the phrase “any complaint” suggests a broad interpretation that would include an oral complaint. See, e. g., Republic of Iraq v. Beaty, 556 U. S. 848, 856 (2009). The upshot is that the three-word phrase, taken by itself, cannot answer the interpretive question.
We can look further to other appearances of the word “filed” in the Act. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 226 (1994) (examining “contextual indications” of the meaning of a term). That word (or a variant) appears in numerous other provisions. But its appearance elsewhere in the Act does not resolve the linguistic question before us. Some of those other provisions (1) involve filed material that, unlike a complaint, is of a kind that is virtually always in writing. See, e. g.,
Looking beyond the Act, we find other statutes that contain antiretaliation provisions. Those statutes, however, use somewhat different language. See, e. g.,
The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase “filed any complaint” might, or might not, encompass oral complaints. We must look further.
B
1
Several functional considerations indicate that Congress intended the antiretaliation provision to cover oral, as well as written, “complaint[s].” First, an interpretation that limited the provision‘s coverage to written complaints would undermine the Act‘s basic objectives. The Act seeks to prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”
Why would Congress want to limit the enforcement scheme‘s effectiveness by inhibiting use of the Act‘s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act‘s help. See Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (seeking a bill to help the poorest of “those who toil in factory“).
In the years prior to the passage of the Act, illiteracy rates were particularly high among the poor. See E. Gordon & E. Gordon, Literacy in America 273 (2003) (one-quarter of World War I conscripts were illiterate); Dept. of Commerce, Bureau of Census, Sixteenth Census of the United States, 1940, Population: The Labor Force (Sample Statistics): Occupational Characteristics 60 (1943) (20.8% of manufacturing laborers in 1940 had less than five years of schooling). Those rates remained high in certain industries for many years after the Act‘s passage. In 1948, for
“In many plants where there is a high degree of illiteracy, the writing of grievances by employees works a substantial hardship. In other plants where there is considerable dirt and special clothes must be worn, it is often not practicable to write up grievances during work hours.” 1 The Termination Report of the National War Labor Board, p. 122.
To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act‘s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints. And insofar as the antiretaliation provision covers complaints made to employers (a matter we need not decide, see infra, at 16-17), it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act. Cf. Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 764 (1998) (reading Title VII to encourage the development of effective grievance procedures to deter misconduct); D. McPherson, C. Gates, & K. Rogers, Resolving Grievances: A Practical Approach 38-40 (1983) (describing the significant benefits of unwritten complaints).
Given the need for effective enforcement of the National Labor Relations Act (NLRA), this Court has broadly interpreted the language of the NLRA‘s antiretaliation provision-“filed charges or given testimony,”
Saint-Gobain replies that worker protection is not the only relevant statutory objective. The Act also seeks to establish an enforcement system that is fair to employers. To do so, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation. If oral complaints suffice, Saint-Gobain adds, employers too often will be left in a state of uncer-tainty about whether an employee (particularly an employee who seems unusually angry at the moment) is in fact making a complaint about an Act violation or just letting off steam.
We agree with Saint-Gobain that the statute requires fair notice. Although the dictionary definitions, statutes, regulations, and judicial opinions we considered, see supra, at 7-10, do not distinguish between writings and oral statements, they do suggest that a “filing” is a serious occasion, rather than a triviality. As such, the phrase “filed any complaint” contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.
Moreover, the statute prohibits employers from discriminating against an employee “because such employee has filed any complaint.”
At oral argument, the Government said that a complaint is “filed” when “a reasonable, objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [Act].” Tr. of Oral Arg. 23, 26. We agree. 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.
2
Second, given Congress’ delegation of enforcement powers to federal administrative agencies, we also give a degree of weight to their views about the meaning of this enforcement language. See
The Secretary of Labor has consistently held the view that the words “filed any complaint” cover oral, as well as written, complaints. The Department of Labor articulated that view in an enforcement action filed many years ago, Goldberg v. Zenger, 43 CCH LC ¶ 31,155, pp. 40,985, 40,986 (D Utah 1961). It has subsequently reaffirmed that view in briefs. See, e. g., Brief for Secretary of Labor as Amicus Curiae Supporting Petition for Rehearing With Suggestion for Rehearing En Banc in Lambert v. Ackerley, No. 96-36017 etc. (CA9), pp. 6-7. And more recently it has acted in accordance with that view by creating a hotline to receive oral complaints, see Dept. of Labor, Compliance Assistance by Law-The Fair Labor Standards Act (FLSA), http://www.dol.gov/compliance/laws/comp-fisa.htm (as visited Mar. 18, 2011, and available in Clerk of Court‘s case file) (directing participants who wish to “file a complaint” to contact a local office “or call the Department‘s Toll-Free Wage and Hour Help Line at 1-866-4-US-WAGE“).
The EEOC has set forth a similar view in its Compliance Manual, Vol. 2, § 8-II(B)(1), p. 8-3, and n. 12 (1998), and in multiple briefs, see, e. g., Brief for EEOC as Amicus Curiae in Support of Petition for Rehearing With Suggestion for Rehearing En Banc in Lambert v. Ackerley, No. 96-36017 etc. (CA9), pp. 8-13; Brief for Appellee in EEOC v. White & Son Enterprises, Inc., No. 88-7658 (CA11), pp. 29-30.
These agency views are reasonable. They are consistent with the Act. The length of time the agencies have held them suggests that they reflect careful consideration, not “post hoc rationalizatio[n].” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 50 (1983). And they consequently add force to our conclusion. Skidmore, supra, at 140; cf. United States v. Mead Corp., 533 U. S. 218, 229, 234-235 (2001) (Court sometimes finds judicial deference intended even in absence of rulemaking authority); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703-704, and n. 18 (1995) (agency views, where the law counsels deference, can clarify otherwise ambiguous statutory provisions).
3
Finally, we note that Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those who violate the antiretaliation provision before us are subject to criminal sanction,
C
Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not to the Government; and, in Saint-Gobain‘s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts, which held to the contrary. 570 F. 3d, at 837-838; 619 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten‘s petition for certiorari. Indeed, it did not mention the claim in this Court until it filed its brief on the merits.
We do not normally consider a separate legal question not raised in the certiorari briefs. See this Court‘s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here. Resolution of the Government/private employer question is not a ““predicate to an intelligent resolution““” of the oral/written question that we granted certiorari to decide. See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/written question separately on its own. And we have done so. Thus, we state no view on the merits of Saint-Gobain‘s alternative claim. Cf. post, at 18-21 (SCALIA, J., dissenting).
*
*
*
We conclude that the Seventh Circuit erred in determining that oral complaints cannot fall within the scope of the phrase “filed any complaint” in the Act‘s antiretaliation provision. We leave it to the lower courts to decide whether Kasten will be able to satisfy the Act‘s notice requirement. We vacate the Circuit‘s judgment and remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or decision of this case.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to all but footnote 6, dissenting.
The Seventh Circuit found for the employer because it held that the Fair Labor
I
The FLSA‘s retaliation provision states that it shall be 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 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.” Ibid.
The phrase central to the outcome here is “filed any complaint.” In the courts below, Kasten asserted a claim for retaliation based solely on allegations that he “filed” oral “complaints” with his employer; Saint-Gobain argued that the retaliation provision protects only complaints that are (1) in writing, and (2) made to judicial or administrative bodies. I agree with at least the second part of Saint-Gobain‘s contention. The plain meaning of the critical phrase and the context in which it appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints-or even formal, written complaints-from an employee to an employer.
A
In isolation, the word “complaint” could cover Kasten‘s objection: It often has an expansive meaning, connoting any “[e]xpression of grief, regret, pain ... or resentment.” Webster‘s New International Dictionary 546 (2d ed. 1934) (hereinafter Webster‘s). But at the time the FLSA was passed (and still today) the word when used in a legal context has borne a specialized meaning: “[a] formal allegation or charge against a party, made or presented to the appropriate court or officer.” Ibid. See also Cambridge Dictionary of American English 172 (2000) (“a formal statement to a government authority that you have a legal cause to complain about the way you have been treated“); 3 Oxford English Dictionary 608 (2d ed. 1989) (“[a] statement of injury or grievance laid before a court or judicial authority ... for purposes of prosecution or of redress“).
There are several reasons to think that the word bears its specialized meaning here. First, every other use of the word “complaint” in the FLSA refers to an official filing with a governmental body.
Second, the word “complaint” appears as part of the phrase “filed any complaint” and thus draws meaning from the verb with which it is connected. The choice of the word “filed” rather than a broader
Moreover, “[t]he law uses familiar legal expressions in their familiar legal sense,” Henry v. United States, 251 U. S. 393, 395 (1920). It is, I suppose, possible to speak of “filing a complaint” with an employer, but that is assuredly not common usage. Thus, when the antiretaliation provision of the Mine Health and Safety Act used that phrase in a context that includes both complaints to an agency and complaints to the employer, it did not use “filed” alone, but supplemented that with “or made“-and to boot specified “including a complaint notifying the [mine] operator ... of an alleged danger or safety or health violation ....”
Third, the phrase “filed any complaint” appears alongside three other protected activities: “institut[ing] or caus[ing] to be instituted any proceeding under or related to this chapter,” “testif[ying] in any such proceeding,” and “serv[ing] on an industry committee.”2
several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.” Beecham v. United States, 511 U. S. 368, 371 (1994).
And finally, the 1938 version of the FLSA, while creating private rights of action for other employer violations, see
1
The meaning of the phrase “filed any complaint” is clear in light of its context, and there is accordingly no need to rely on abstractions of congressional purpose. Nevertheless, Kasten argues that protecting intracompany complaints best accords with the purpose of the FLSA-“to assure fair compensation to covered employees“-because such purposes are “advanced when internal complaints lead to voluntary compliance.” Reply Brief for Petitioner 18. But no legislation pursues its ends at all costs. Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam). Congress may not have protected intracompany complaints for the same reason it did not provide a private cause of action for retaliation against complaints: because it was unwilling
to expose employers to the litigation, or to the inability to dismiss unsatisfactory workers, which that additional step would entail. Limitation of the retaliation provision to agency complaints may have been an attempt “to achieve the benefits of regulation right up to the point where the costs of further benefits exceed the value of those benefits.” Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 541 (1983).
2
In deciding whether an oral complaint may be “filed,” the Court‘s opinion examines modern state and federal statutes, which presumably cover complaints filed with an employer. The only relevance of these provisions to whether the FLSA covers such complaints is that none of them achieves that result by use of the term “filed any complaint,” and all of them use language that unmistakably includes complaints to employers. See, e. g.,
3
Kasten argues that this Court should defer to the Department of Labor and Equal Employment Opportunity Commis-
sion‘s (EEOC) interpretations of
Presumably for this reason, the Court‘s opinion seems to suggest that only so-called Skidmore deference is appropriate, see Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).5
This doctrine states that agencies’ views are ““entitled to respect“” to the extent they have ““the power to persuade.“” Christensen v. Harris County, 529 U. S. 576, 587 (2000) (quoting Skidmore, supra, at 140).6 For the reasons stated above, the agencies’ views here lack the “power to persuade.”
II
The Court‘s opinion claims that whether
It regularly does so, however, under the circumstances that obtain here. (Curiously enough, Caterpillar, the case cited by the Court, was one instance.) Rule 15.2 is permissive rather than mandatory: “Any objection to consideration of a question presented based on what occurred in the proceedings below ... may be deemed waived unless called to the Court‘s attention in the brief in opposition.” (Emphasis added.) Accordingly, the Court has often permitted parties to defend a judgment on grounds not raised in the brief in opposition when doing so is “predicate to an intelligent resolution of the question presented,
cluded therein.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted); see also Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980).
Kasten‘s petition for certiorari phrases the question presented as follows: “Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision,
Moreover, whether
This utterly atextual standard is obviously designed to counter the argument of Saint-Gobain, that if oral complaints are allowed, “employers too often will be left in a state of uncertainty about whether an employee ... is in fact making a complaint ... or just letting off steam.” Ante, at 13-14. Of course, if intracompany complaints were excluded, this concern would be nonexistent: Filing a complaint with a judicial or administrative body is quite obviously an unambiguous assertion of one‘s rights. There would be no need for lower courts to question whether a complaint is “sufficiently clear and detailed,” ante, at 14, carries the requisite “degree of formality,” ibid., or provides “fair notice,” ibid., whatever those terms may require.
The test the Court adopts amply disproves its contention that “we can decide the oral/written question separately,” ante, at 17. And it makes little sense to consider that question at all in the present case if neither oral nor written complaints to employers are protected, cf. United States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006). This Court should not issue an advisory opinion as to what would have been the scope of a retaliation provision covering complaints to employers if Congress had enacted such a provision.