*1 improvidently later that it was a Court ruled damages based on rather to seek but during proceeding supplemental. Although Indiana cause of action. new Therefore, Mercantile, that the trial at 887. determined 906 N.E.2d Supreme Court granted Mercantile improvidently should not court Mercantile’s its to add to amend of limitations leave been dismissed on statute Mercantile claim, also stated that CVCA grounds. claim pursue its CVCA

“may continue to a new cause number through transfer B. Motion for Mercantile’s Certifica- Rose, N.E.2d at other means.” some is Denied 777. In light of our decision Mercantile’s Supreme issued Indiana Court After the favor, request certify we decline its decision, Superior the Newton Court Supreme question to the Indiana Court. seeking motion mis- Mercantile’s denied Mercantile claim. joinder the CVCA III. CONCLUSION to the Indiana that decision appealed Therefore, we decision The Indiana Court of Appeals. Court Reverse Remand for further the district the claim was commenced Appeals found proceedings opinion. consistent and that Mercantile timely in a fashion Mercantile, misjoinder. entitled to was at 883. The court concluded

906 N.E.2d was CVCA claim com-

that Mercantile’s

menced within statute limitations filed its motion amend

when Mercantile The court complaint. 886. went Supreme explain that the Indiana

on to bringing ruling,

Court’s CVCA during proceeding supplement claim KASTEN, Plaintiff-Appellant, Kevin history “not rewrite improper, did the time of commencement of the erase 886-87, and, result, action,” id. at PERFORMANCE SAINT-GOBAIN misjoinder entitled to Mercantile was CORPORATION, PLASTICS Id. at the CVCA claim. 888. Defendant-Appellee. question As involves under No. 08-2820. damages, state this court

lying claim of Appeals, United States Court Kutsugeras law. AVCO applies state Seventh Circuit. (7th Cir.1992). Corp., 973 F.2d reasoning concur with We July Submitted Appeals CVCA Indiana Court Decided Oct. within the properly claim was commenced Mercantile statute of limitations when complaint. This most recent

amended its decision, Appeals

Indiana Court Supreme

the Indiana declined to

reconsider, the final word that Mercan MN, Raster, Minneapolis, H. “evaporate claim did not into James

tile’s CVCA Plaintiff-Appellant. the ether” the Indiana when

3H Sievert, Whyte, contrary to the Anthony longstanding Hirschboeek view of J. Labor, S.C., Madison, WI, P. departed Thomas & Dudek circuits, of other and Godar, Friedrich, holdings interpreted Best & Milwau- Michael statutory language way in a kee, WI, that I Defendanb-Appellee. for contrary understanding believe is to the Rieser, Labor, Mary Department of J. Congress. Solicitor, DC, Washington, for Office of the 15(a)(3) Section Fair Labor Amicus Curiae. (“FLSA”) Act Standard makes it unlawful EASTERBROOK, Judge, Before Chief for an “to or in any POSNER, FLAUM, KANNE, against any manner discriminate WOOD, WILLIAMS, ROVNER, EVANS ee such because any filed TINDER, SYKES, Judges. Circuit instituted or caused to be any instituted under proceeding, or relat- Rehearing On Petition for En Banc chapter, ed to this or has testified or is for petition On consideration of the re testify in any about to proceeding, such suggestion rehearing hearing with en or has served or is about serve on an plaintiff-appellant banc filed and the industry committee.” defendant-appellee, Judge answer mine). (emphasis As the Flaum, circuit Judge Bauer and the two Equal Employment Opportunity Commis- judges original panel,* on the voted to sion point deny and a rehearing majority out, a number of other statutes have anti- judges deny service re active voted to provisions containing retaliation language hearing en banc. if is similar not identical to this text. The petition rehearing for en banc is 660(c)(1) (Occupational See 29 U.S.C. denied. Act) Safety Health (proscribing retal- against “any iation employee because such ROVNER, Judge, with whom Circuit any complaint has filed ... un- WILLIAMS, Judges, WOOD and Circuit chapter der or related to this join, dissenting from the denial of 1855(a) (Migrant and Seasonal rehearing en banc. Agricultural Worker (pro- Protection adopted The court construction of scribing against retaliation worker who “has, cause, the Fair Labor Standard Act’s anti-retalia any complaint provision unique among ... under or this chapter related to hand, (Clean 1367(a) circuits. one un On the the court Water any derstands the statute’s “filed com (proscribing against retaliation em- plaint” language intra-company filed, instituted, to cover ployee “has unfair practices, about caused to be filed any pro- or instituted but on the other concludes that oral under ceeding chapter”); this (Solid 6971(a) complaints fall outside reach Waste Disposal (pro- any statute. Kasten scribing Saint-Gobain retaliation Perform filed, Corp., instituted, Plastics F.3d 834 who “has or caused to be Cir.2009). deeming In lan any proceeding filed or instituted under ”). guage to reach not oral ... chapter court’s under- complaints, position the court has taken a of what standing the FLSA’s “filed * original judge panel, petition rehearing petition The third District on in the Judge Kapala, participate rehearing Frederick J. did not en banc. contrary, reference On portends

complaint” language in favor of a “any complaint” counsels stat- construction of those other similar understanding encompasses broad utes. *3 external both internal and provisions play These anti-retaliation Inc., 173 e.g., Valerio v. Putnam Assocs. workplace the rules protecting vital role Cir.1999). (1st 35, 41 As the court F.3d to They serve Congress adopted. that noted, understanding adopted the worker, but individual not “vast of circuits. 570 by majority” be- by agencies federal 838; v. Satel Hagan at Echostar F.3d practices. of aware unlawful come (5th lite, LLC, 617, 529 F.3d 625-26 Cir. Supreme Court observed As the Freeman, 558, 2008); F.3d Moore v. 355 15(a)(3) of the FLSA: to section respect (6th Cir.2004); v. Acker 562-63 Lambert reasons, weighty practical For other (9th Cir.1999) 997, 1003-07 ley, 180 F.3d compli- to not seek secure Congress did (en Valerio, banc); 41-44; 173 at F.3d through prescribed standards Markets, Inc., 121 v. Schnuck F.3d Conner in- continuing supervision or detailed (10th Cir.1997); 1390, 1394 v. White EEOC Rather, it chose to payrolls. of spection 1006, Enters., F.2d 1011-12 & Son 881 re- complaints information and rely on (11th Cir.1989); Yam Maxey’s Brennan v. seeking to vindi- employees ceived (8th aha, Inc., 179, 513 F.2d 181-82 Cir. rights claimed to been denied. cate 1975); Easley, City contra v. 62 Whitten of thus Plainly, effective enforcement could (4th Cir.2003) 477, (unpub Fed.Appx. 480 felt free expected if lished); Hosp., v. Lambert Genesee griev- with their approach to officials (2d Cir.1993). 46, But 55-56 F.3d prohibition ances. This ends the use court went on to conclude that discharges and other suggests term that a “filed” designed to discriminatory practices was must be written order to come within For no to argument serve. it needs F.3d at 838- the statute’s that of economic retaliation show fear understanding of “[T]he natural aggrieved might operate often to induce ‘file phrase any complaint’ requires the accept employees quietly to substandard employ submission some retal- By proscription conditions. er, court, body.” administrative 15(a)(3), iatory acts forth in and its set reason, rejected For that Secretary equity enforcement in multiple from other circuits decisions 17, Congress Labor] [of recognizing that oral as well as written com- sought to foster a climate in which by the complaints protected statute. provisions with the substantive pliance Lambert, 1008; F.3d at EEOC v. of the Act would be enhanced. Sch., 985, Cmty. Romeo 976 F.2d 989-90 Inc., Jewelry, Mitchell v. Robert DeMario (6th Enters., Cir.1992); White Son 288, 332, 335, 4 1011-12; Parking Marshall Co. F.2d (1960) (citation omitted). L.Ed.2d 323 Inc., Am.-Denver, 670 F.2d 142-43 rightly Yamaha, The court in this case concluded Cir.1982); Maxey’s com- any complaint” 181-82; that “filed reaches Hagan, F.2d at see also 529 F.3d his em- plaints that an makes to that (assuming objections at 626 voiced Nothing work ployer. orally management regarding F.3d 837-38. to suggests change the statute that decreased overtime schedule FLSA, but externally might protected by made pay must be an administra- objections were judicial body concluding in order that because qualify tive or (D.Conn.2001) (“Clear personal F.Supp.2d terms rather than in framed they potential illegality, ly, were be- oral terms written or statute); scope of Brock Richard- yond filed with HART were Wa[rd] (3d son, & n. 2 ”); Inns, speech.... v. Holiday Rallis Cir.1987) (employer’s decision (N.D.Ill.1985) belief that based on mistaken she plaintiff (“Plaintiffs’ alleges their complaint, fact she had had when grievances ignored they were after had only spoken agency investigator, filed more than griev 20 oral and written FLSA).1 rejected It also prohibited period time.”); ances over an eight year *4 has been the of Labor’s what 438.402(b)(3) 42 C.F.R. (specifying that nearly fifty years. Goldberg view for See certain managed care entities and insur ¶ (CCH) 31,155, Zenger, v. 43 Lab. Cas. plans ance grievance proce must have (D.Utah 1961) (DOL 40,986 action on be- that permit dures enrollee to “file a griev cooperated half of orally writing” either and to agency’s investigation insisted that appeal orally “file an either or writing”); wages in employer pay lump him back sum (defining 14 “flight plan” C.F.R. 1.1 cf. installments). than rather mean information about intended flight

Although I the term agree that “to file” path orally “that or in writing is filed (particularly lawyers) often connotes control”). (and air traffic examples These document, the submission of a it is no others) there many put to rest ordinary means out of the to read and hear notion that filing complaint a invariably conjunction the term used in with oral complaint. a written sense, complaints; in that “to file” is used time, At noteworthy the same it is broadly making more signify of a Congress many spe other statutes has Thus, a report lodging protest. or the cifically See, required written the notion that one can “file” an oral com (Federal e.g., § 2 437g(a)(1) U.S.C. Elec plaint grievance any is reflected num Act) Campaign (“Any person who be opinions regulations. ber federal a lieves violation of this Act ... has oc Inc., e.g., NLRB Elec. Co-op., v. Sw. curred, Cir.1986) complaint.... file a (7th Such 276, F.2d (sustaining 794 279 complaint writing....”); shall be in 5 finding bargaining NLRB’s that collective (Vet 3330a(a)(1)(A) (a)(2)(B) § & U.S.C. agreement right included “the to file oral Bent, Employment Opportunities erans v. grievances”); United States 702 (11th Cir.1983) (“Before 210, (preference-eligible 212 F.2d trial veteran believes orally agency appellant jury rights may filed a motion for a has violated his or her trial, “[sjuch denied.”); complaint; which the court file Ward v. shall be Dist., 193(a) (Pack- Housatonic Reg’l § Area Transit 154 7 U.S.C. 1368043, (N.D.Ill. 15, 2000) 1. A number courts in Sep. of district this circuit at *2-*3 Ergo (Guzmán, have taken a J.); Wheels, Inc., similar view. v. Int’l Wittenbergv. 963 Servs., Inc., 765, F.Supp.2d Merchant 519 654, (N.D.Ill.1997) (Coar, F.Supp. J.); 658-60 (N.D.Ill.2007) (Leinenweber, J.); 778-79 Her Club, City Cuevas v. Monroe Street 752 Madison, City v. Wide Insulation nandez 1405, (N.D.Ill.1990) (Sha 1412-13 Inc., 682, 689-90, F.Supp.2d dur, Salamone, J.); see also Wilke (E.D.Wis.2007) (Adelman, J.); Skelton v. Am. 1040, (N.D.Ill.2005) F.Supp.2d Online, F.Supp.2d Intercont’l Univ. (Moran, J.) (deliberate up failure to show (N.D.Ill.2005) J.); (Kennedy, DeGrange work that would be knew uncom Corp., v. Richard Instruments Medical Wolf pensated protected). ¶ 34,147, (CCH) 141 Lab. Cas. 2000 WL Act) (whenever that when Con- suggest the These statutes Stockyards ers packer Secretary Agriculture require believes means to gress committing viola form, or swine contractor sets forth take written tions, in writ “he shall cause See, e.g., Whit- requirement expressly. packer swine upon to be served States, 216- v. United field contractor, re stating charges in that 160 L.Ed.2d 611 (same— 228b-2(a) spect (2005). 1599(a) (Fed dealers); 7 poultry opinions in previous Sapper own Our (same grain eral Seed —seed Cir.1999), (7th Hager, 188 F.3d 852 stein (Trade 2561(a) handlers); Metropolitan Avitia v. Club Chica Act) (federal may not agency Agreements Cir.1995), argu go, F.3d Trade unless the consider ably understanding reflect an of the statu con informs the Representative tory language that reaches oral 4322(a) “in writing”); cerned Sapperstein complaints: equated (b) (Uniformed Employment Services re complaint” language the “file *5 (person claiming Reemployment and statute, porting potential violation of the right employment violation of to or reem may 188 F.3d an act be may complaint; as ployment veteran file writing accomplished orally by writing, shall in as well complaint be as “[s]uch (Civil 2000b(a) Rights § employee’s and Avitia cited an oral state accommodations) 1964) Act of (public a Department ment to of Labor auditor as (“Whenever Attorney General receives conduct, 49 F.3d at 1223-24. Attorney ... complaint in protection Conditioning the of the stat- to in General is authorized institute for or ute on submission a written com- ac the name of the States a civil United plaint aggrieved well mean em- 2000c-6(a) tion....”); § 42 U.S.C. differently ployees will be treated based on education); (same public 42 U.S.C. — happenstance. employee An who sched- (ii) (Fair 3610(a)(1)(A)(i) Housing ules a with a human resources meeting discriminatory (person aggrieved by to manager discuss the denial of overtime housing practice may file complaint not pay protected, will be no matter how Secretary Housing Develop and Urban unequivocal detailed and the oral com- ment, -may Secretary and file com also be, plaint may while an in plaint; “[s]uch shall be writ manager cannot catch in her office 15512(a)(2)(C) instead leaves her handwritten note (Help (“Any complaint America Vote communicate her an e-mail to sends procedures filed under be shall sort will protected. same be notarized,.... ”); writing and appropri- I submit that the focus is more (Cable 554(g) Policy Communications ately on the complaining whether Act) (complaint by employee applicant ee has communicated substance of employment she who believes he or employer to on concerns rather than op was victim cable of discrimination whether the communication written. was writing, erator “shall be and shall Lambert, F.3d at In this signed person”); to sworn 46101(a)(1) (Federal way distinguish a court state- can between Aviation (“[a] of an ments are made furtherance person may file rights those employee’s statutory its writing” violation of the Act or regulations). vague, rules that amount to no more than “ab- implementing just grumblings.” (citing nications are essential to an em- stract 44). Valerio, ployee attempting to ascertain her and to the discov- nothing It also out that pointing bears ering potential FLSA, violations rationale holding the court’s limits its notwithstanding likelihood that an em- narrow construction of lan ployer practices bent on keeping out of guage intra-company regulators might view of the court’s decision that written com likely penalize an for her oral protected presumably plaints would contacts with agency as would employee’s external apply contacts written contacts. regulatory officials. See 570 F.3d at Yet, other courts understood It was precisely type these of inconsis- the statute to reach oral contacts with an tencies that the sought agency cooperation as well as oral Scrivener, avoid in NLRB v. e.g., auditors. Daniel (1972), 92 S.Ct. L.Ed.2d where Atlanta, Winn-Dixie it construed the anti-retaliation provision (N.D.Ga.1985) (employee’s phone call to the National Labor Relation Act Wage Labor’s Hour (“NLRA”), language which uses similar to inquire Division to whether could that of the FLSA. See Food Rutherford lawfully deny compensation her overtime McComb, Corp. 215(a)(3); protected by other 1473, 1473-74, 91 L.Ed. 1772 wise, consulted, “an but did (1947) (noting that decisions interpreting with, H not file a W & and who *6 coverage persuasive of NLRA have force employer informed her first would not be FLSA). 8(a)(4) coverage as to Section the long employer protected fired of the NLRA it an prac- makes unlawful could actually her before she file a com tice for an “to discharge or oth- Parts, Factory Prewitt v. Motor plaint”); against erwise discriminate an employee (W.D.Mo. because he charges given has tes- filed 1990) (telephone Wage call to and Hour timony under subchapter.” inquire employer’s Division to whether 158(a)(4) supplied). (emphasis In Scriv- salary plan new and work schedule were ener, employees four were fired after by 215(a)(3); protected lawful was section they by were gave interviewed sworn prerequisite employee knowing “[a] written a National statements to to file a is having whether infor (“NLRB”) Relations Board field examiner employer’s mation about an whether ac investigating of unfair charges prac- FLSA”); tions violate the also tices that against had been filed their em- Avitia, supra, at 1223-24 (finding ployer. discharged None employ- of the support finding evidence sufficient to ees had charges themselves filed with the against employee retaliation who was fired NLRB prior discharge; they to their had after he told of Labor auditor simply given evidence to the field examin- that he had without being worked overtime er. The NLRB that statutory concluded the dis- compensated at overtime rate of charges were in violation of regular section hourly one and one-half times 8(a)(4), (1969), decisions, 177 N.L.R.B. 504 but pay). By from such the departing Eighth Circuit disagreed, concluding the that the has left statute prohibit the statute those did not retaliation repre interactions form, employee that in an who has done noth- place sentatives take notwithstanding give the fact oral commu- more than a written statement to (1971) integrity preserve tion needed to F.2d 1296 examiner. 435 a field entirety. in process the Board curiam). sided Court (per 8(a)(4) (footnote “Construing with the NLRB. at 802 at 92 S.Ct. omitted). during the investi employee thus concluded that protect The Court employees in consti- stage, connection of the four gative under giving actionable retaliation charge or the tuted filing of a formal NLRA, the fact that none notwithstanding testimony, comports with of formal a actually had employees section,” noted the Court objective of at testimony. Id. charge given 121, 92 at at S.Ct. at the outset. U.S. S.Ct. it ‘“Congress made it clear information about persons logic all wishes would do well to heed We completely Jewelry [illegal] practices warnings to be of both Robert DeMario such construing them reach against reporting and Scrivener free from coercion ” Congress designed scheme FLSA. (quoting Ibid. Nash v. to the Board.’ play a crucial which individual Comm’n, 235, 238, Fla. Indus. identifying potential violations of role in (1967)). 362, 365, L.Ed.2d 438 88 S.Ct. bringing them to the atten- the FLSA and practicalities ap Having mind “the of Labor. Robert tion of action,” id. at propriate agency Jewelry, DeMario did not think S.Ct. that an em- at 335. This court’s decision logical employee an pro- ployee’s intra-company testimony in charge given has filed appropriate pays tected agency proceeding, but not one who an homage by extending to that role the stat- necessary steps participated opportunity that ute’s reach to the earliest leading up prosecution to the an has to assert his charge: workplace, with his —in participates An has filed noth- Although er. may not be called investigation Board nothing point at that ing and testified *7 formally testify may discharged time, taken the first he has nonetheless any hearing at which he could before rights. of his step toward the vindication testify. might be His contribution step, he penalized taking If he is may merely or the case cumulative (and co-workers) might well take no his hearing. settled or dismissed before why, explains, That is other. Scrivener statutory pro- Which receive necessary phrases it is to construe like vagaries tection should not turn on the charges” complaint” “filed or “filed process of the selection or on other liberally to include not those ultimate events that have no relation to the need necessary preceding all of the acts but than It would make less that culminate in those acts. 405 steps complete protect sense to And that U.S. at formal participates because he view, my it makes “less than why, (by filing a inception process be- complete sense” to draw distinction final, presenta- charge) or formal oral as- employee’s tween an written and tion, participation but not to rights. of his See id. sertions developmental stages clear, important make at 802. As the cases S.Ct. points virtually any employee may that fall two that an step between these prior unequal pursuit and incon- take in of his time. This would be Department of La- with the protection protec- and is not the sistent e.g., inquiring rights, ques- into his bor — hours, legality wages of his tioning the cooperating with a of La- by way do investigation

bor —he the written word. spoken and information inquiries, protests,

Oral

supplied agency representative play important

no less an role letters, e-mails,

scheme than do and sworn They

statements. must be

well. reasons, I

For these believe this case full

warrants further consideration

court, I respectfully dissent from deni- rehearing

al of en banc. POTDAR, Petitioner,

Madhumilind Jr., HOLDER, Attorney

Eric H. States,

General of the United

Respondent.

No. 06-2441. Appeals,

United States Court of

Seventh Circuit.

Oct.