upreme Court, U.S.

NO. ^ ~_ o ~, .~N 1.2 2010

~n ~(~)FFICE Ur ~ GLE~K

Kevin Kasten,
Petitioner,
Vo

Saint-Gobain Performance Plastics Corporation,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

James H. Kaster
Counsel of Record
Adrianna S. Haugen
NICHOLS KASTER, PLLP
4600 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 256-3202

Counsel for Petitioner

2010 - Bachman Legal Printing ¯ (612) 339-9518 ¯ 1-800-715-3582 ¯ Fax (612) 33%8053
Blank Page
 QUESTION PRESENTED FOR REVIEW

Is an oral complaint of a violation of the

~Fair Labor Standards Act protected conduct
under the anti-retaliation provision, 29 UoS.C. §
215(a)(3)?
 ii

PARTIES TO THE PROCEEDING

All parties to this Action are set forth in
~the Caption.
 III

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........i

PARTIES TO THE PROCEEDINGS ................

TABLE OF CONTENTS ...................................iii

vi
TABLE OF AUTHORITIES ..............................

PETITION FOR WRIT OF CERTIORARI .......1

OPINIONS BELOW ...........................................1

¯ STATEMENT OF JURISDICTION ...................1

STATUTORY PROVISION INVOLVED ...........2

CONCISE STATEMENT OF THE CASE .........2

3
I. Factual Background : .................................

II. Proceedings Below ....................................5

A. Summary Judgment in the District

Court ..................................................... 5

5
B. Decision on Appeal....: ........................

C. Denial of Rehearing with Three

Dissenting Judges ................................ 6

ARGUMENT IN SUPPORT OF GRANTING

THE WRIT .......................................................... 7
 iv

I. The Appellate Decision Conflicts With

The Decisions Of Six OtherCourts Of
Appeals ........... : .......................................... 9

II. The Question Presented Is Of Exceptional

Importance .................. : ............................ 16

III. The Court Of Appeals’ Decision Is

Incorrect, And Runs Contrary To This
Court’s Prior Guidance On Interpreting
The FLSA ................................................ 22

CONCLUSION ..................................................29

APPENDICES

10/15/09 Order of the Seventh Circuit Court

of Appeals Denying Petition for Rehearing
with Dissenting Opinion ........................ App. 1

07/23/09 Department of Labor and EEOC

Amicus Brief in Support of Rehearing.
.............................. : ............ ~ .................. App. 15

06/29/09 Opinion and Order of the Seventh

Circuit Court of Appeals Panel Affirming
Grant of Summary Judgment ............. App: 32

11/18/08 Department of Labor Amicus Brief

on Appeal .............................................. App. 44

06/19/08 District Court Opinion and Order

Granting Summary Judgment ........... App. 63

06/02/08 District Court Opinion and Order

Granting Class Certification and Summary
 V

Judgment on Class Claims in Related Case.

........................................... ................... App. 73

American Heritage Dictionary, 658 (4th ed.

2000) .................................................. App. 114

H.R. Conf. Rep. No. 2738, 75th Cong., 3d

Sess. 21 (1938) (selected excerpts)...App. 115

Hearings on the Fair Labor :Standards

Amendments 0f 1977, S. Comm. on Human
Resources, Subcomm. on Labor, 95th Cong.,
1st Sess. 17 (1977) (selected. excerpts) ...........
............................................................ App. 123
 vi

TABLE OF AUTHORITIES

Federal Cases

Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360

(4th Cir. 2000) ............................................... 10

Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179

(8th Cir. 1975) ..................................... 9, 12, 16

Brock v. Richardson, 812 F.2d 121 (3d Cir.

1987) ................................................................ 9

CBOCS W., Inc. v. Humphries, 128 S.Ct. 1951

(2008)
....... . ...... . ..... . ...................... ................ ..23

Clevinger v. Motel Sleepers, Inc., 36 F. Supp. 2d

322 (W.D. Va. 1999) ......... : .............................. 7

Crawford v. Metro. Gov’t of Nashville &

Davidson County, 129 S.Ct. 846 (2009) ...... 23

EEOC v. Romeo Cmty. Sch., 976 F.2d 985 (6th

Cir. 1992) ............................................ 9, 10, 11

EEOC v. White & Son Enters., 88.1 F.2d 1006

(llth Cir. 1989) ................................... 9, 13, 14

.Ergo v. Int~l Merch. Servs., Inc., 519 F. Supp. 2d

765 (N.D. Ill. 2007) ..... ~ ................................. 18

.Green v. Bock Laundry, 490 U.S. 504 (1989) ...22

Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008)...23

 vii

Hagan v. l~chostar Satellite, L.L.C., 529 F.3d

617 (5th Cir. 2008) .................................... 9, 14

Hernandez v. City Wide Insulation of Madison,

Inc., 508 F. Supp. 2d 682 (E.D. Wis. 2007)... 18

Kasten v. Saint-Gobain Performance Plastics

Corp., 570 F.3d 834 (7th Cir.
2009) ..................................................... passim

Kasten v. Saint-Gobain Performance Plastics

Corp., 585 F.3d 310 (7th Cir.
2009) ..................................................... .passim

Kasten v. Saint-Gobain Performance Plastics

Corp., 556 F. Supp. 2d 941 (W.D. Wis. 2008)
...................................................................... 3,4,5

Kasten v. Saint-Gobain Performance Plastics

Corp., 619 F. Supp. 2d 608 (W.D. Wis. 2008).
...... : ........................................................ 1, 5, 10

Knickerbocker v. City of Stockton, 81 F.3d 907

(9th Cir. 1996) .............................................. 18

Lambert v. Ackerley, 180 F.3d 997 (9th Cir.

1999) (en banc), cert. denied, 528 U.S. 1116
(2000) ................................................... 9, 14, 15

Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir.

1993) cert. denied, 511 U.S. 1052 (1994)
................................................................... 9, 18

Love v. RE~MAX of Am., Inc., 738 F.2d 383

(10th Cir. 1984) ................................... 9, 15, 16
 VII1

Lundervold v. Core-Mark Int’l, Inc., No. Civ. 96-

1542-AS, 1997 WL 907915 (D. Or. 1997)
................................................ : ................. 27, 28

Marshall v. Power City Elec., Inc., No. 77-197,

1979 WL 23049 (E.D. Wash. Oct. 23, 1979)

Mitchell v. Robert DeMario Jewelry, Inc., 361

U.S. 288 (1960) ................................. 17, 18, 28

Moon v. Transp. Drivers, Inc., 836 F. 2d 226 (6th

Cir. 1987) .............. ,..,: ............................ 11, 12

Moore v. Freeman, 355 F.3d 558 (6th Cir. 2004)

....................................................................... 11

Nicolaou v. Horizon Media, Inc., 402 F.3d 325 (2d

Cir. 2005) ........................................ :.. ............ 18

Pacheco v. Whiting Farms, Inc., 365 F. 3d 1199

(10th Cir. 2004) ................ " ............................ 15

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local

123, 321 U.S. 590 (1944) ........................ 22, 23

Valerio v. Putnam Assocs., Inc., 173 F.3d 35 (1st

Cir. 1999) ........................................... i ............ 9

Whitten v. City of Easley, 62 Fed. Appx. 477 (4th

Cir. 2003) (unpublished) ................. , ....... ~ ............ 9

State Cases

Ash~yv. Tri-State Lumber Co., 91S.E. 813(W.

Va. 1917) ....................................................... 26
 ix

Commonwealth v. Mol~na, 346 A.2d 351 (Pa.

Super. Ct. 1976) ........................................... 26

Donovan v. Walsh, No. 287326; 2005 WL

1208964 (Mass. Land Ct. May 23,
2005) ..................... : ........................................ 26

Grievance of McCort, 650 A.2d 504 (Vt. 1994)

In re Estate of Shields v. Abdalian, No. 44137,

1982 WL 5386 (Ohio Ct. App. May 27, 1982)

Mid-Century Ins. Co. v. Barclay, 880 S.W. 2d 807

(Tex. App. 1994) .............................. : ............. 24

.Parks v. Farmers Ins. Co. of Or., ---P.3d--- 2009

WL 4981699 (Or. Dec. 24, 2009) .................. 24

Richmond v. Newson, 17 So. 2d 635 (La. Ct. App.

1944) ............................................................. 26

State v. Howard, 805 So. 2d 1247 (La. Ct. App.

2002) ................................ ~ ............................ 26

State v. Riggins, 508 So. 2d 918 (La. Ct. App.

1987) ............................................................. 26

Administrative Decisions

Don Bassette Aviation, Inc., DMS FAA-2005-

20640, DMS FAA 2005-20641, 2006 WL
728858 (Dep’t Of Transp. Mar. 17, 2006)
 X

E. Ky. Paving Corp.,. 293 NLRB 1132

(1989) ............................................................. 25

Guy Am. Airways, Inc., 4 N.T.S.B. 886 (May 20,

1983) ............................................................. 25

I.R.S. Priv. Ltr. Rul., PLR 8630019, 1986 WL

369778 (Apr. 23, 1986) ................................. 25

Motor Convoy, Inc., 252 NLRB 1253 (1980)

Ormet Corp., OSHRC Dkt. No. 76-4397, 1978 WL

6690 (Occupational Safety Health Review
Comm’n May 18, 1978) .: ............................... 25

Federal Statutes

2 U.S.C. § 437g(a) ...............................................27

5 U.S.C. § 7116(a)(4) ..........................................20

5 U.S.C. § 3330a(a)(2)(B) ..................................27

7 U.S.C. § 193(a) ...............................................27

7 U.S.C. § 228b-2(a) ..........................................27

.7 U.S.C. § 1599(a) .............................................27

15 U.S.C. 3 80b-9(a) ...........................................27

19 U.S.C. § 2561(a) ...............................: ............27

22 U.S.C. § 4115(a)(4) ........................................20

28 U.S.C. § 1254(1) ........... : ..................................2

 xi

¯ 28 U.S.C. § 1291 ...................................................6

28 U.S.C. § 1294(1) ..............................................6

28 U.S,C. § 1331 ........................... ~ .......................5

29 U.S.C. § 206 ....................................................4

29 U.S.C. § 207 .....................................................4

29 U.S.C. § 215(a)(3) ......... ........................ .passim

29 U.S.C. § 660(c) ...............................................19

29 U.S.C. § 1855(a) ............................................19

29 U.S.C. § 2002(4)(A) ................." ......~ ...............20

29 U,S.C. § 2934(f) ............................: ................20

33 U.S.C. § 392 ...................................................27

38 u.s.c. § 4322(b) ............................................27

42 U.S.C. § 2000b(a) ..........................................27

42 U.S.C. § 2000c-6(a) .......................................27

42 U.S.C. § 3610(a)(1)(A)(ii) ..............................27

42 U.S.C. § 15512(a)(2)(C) ................................11

47 U.S.C. § 554(g) ......: .......................................27

49 U,S.C. § 20109(a)(3) ......................................19

59 U.S.C. § 2305(a) ............................................11

49 U.S.C. § 31105(a) .........................................19

49 U.S.C. § 46101(a)(1) .....................................27

State Statutes And Regulations

2007 ME Reg. Text 46674 (NS) § 2(A) ...............26

Minn. Stat. § 144.4808(2) ...................................26

Miss. Code § 69-47-23(4) .: ..................................26

N.J. Stat. § 30:4C-12 ..........................................26

Nev. Rev. Stat. § 618.705 ...................:..~ .............26

Tenn. Code § 49-6-3401(c)(4)(B) ........................26

Other Authorities

American Heritage Dictionary (4th ed. 2000)

American Heritage Desk DiCtionary, 369 (1981).

New Shorter Oxford English Dictionary (1993)

Random House College Dictionary, 493 (1982)

H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess.

21 (1938) ............................................... : ............. 18

Hearings on the Fair Labor Standards

Amendments of 1977, S. Comm. on Human
 ×111

Resources, Subcomm. on Labor, 95th Cong., 1st

Sess. 17 (1977) (selected excerpts)

Brief for the Secretary of Labor as Amicus Curiae

Supporting Appellant in Part at 14, KiIpatrick v.
Serv. Merch., Inc., No. 98-31423 (6th Cir. Apr. 22,
1999), available at 1999 WL 33729234.
Blank Page
 PETITION FOR WRIT OF CERTIORARI

Petitioner / Plaintiff Kevin Kasten

respectfully requests that this Court issue a
.writ of certiorari to review the judgment of the
~United States Court of Appeals for the Seventh
Circuit.

OPINIONS BELOW

The decision of the Court of Appeals for

the Seventh Circuit denying the petition for
rehearing and rehearing en banc, with three
judges dissenting, is available at Kasten v.
¯ Saint-Gobain Performance Plastics Corp., 585
F.3d 310 (7th Cir. 2009), and is reproduced at
Petitioner’s Appendix ("App.") at 1. The panel
opinion of the United States Court of Appeals
for the Seventh Circuit is available at Kasten v.
Saint-Gobain Performance Plastics Corp., 570
F.3d 834 (7th Cir. 2009) and is reproduced at
App. 32~ The district court’s opinion granting
summary judgment is available at Kasten v.
Saint-Gobain Performance Plastics Corp., 619 F.
Supp. 2d 608 (W.D. Wis. 2008) and is
reproduced at App. 63.

STATEMENT OF JURISDICTION

The Seventh Circuit Court of Appeals

issued its Opinion and Final Judgment on June
29, 2009. The Seventh Circuit denied
Petitioner’s timely-filed petition for rehearing
and rehearing en banc on October 15, 2009.
This Court has jurisdiction pursuant to 28
U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

29 U.S.C. § 215(a)(3):

(a) After the expiration of one hundred

and twenty days from June 25, 1938,
it shall be unlawful for any personm

(3) 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.

CONCISE STATEMENT OF THE CASE

On June .29, 2009, the Seventh Circuit

Court of Appeals affirmed the dismissal of
Petitioner’s retaliation claim under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. §
215(a)(3), holding that his "unwritten, purely
verbal complaints are not protected activity"
because "the FLSA’s use of the phrase ’file any
complaint’ requires a plaintiff employee to
submit some sort of writing". App. 43. In light
of the discrepancy between the Seventh Circuit’s
holding and other Circuits, the Department of
 3

Labor and Equal Employment Opportunity

Commission’s warnings that the decision will
have a negative impact on enforcement of the
FLSA, Equal Pay Act, and other Federal laws,
and the Seventh Circuit dissenting opinion
recognizing that the decision is "contrary to the
understanding of Congress," this petition for a
writ of certiorari follows. App. 2.

I. Factual Background

Petitioner Kevin Kasten worked at

Respondent Saint-Gobain Performance Plastics
Corporation’s Portage, Wisconsin facility from
October 2003 until December 2006 as an hourly-
paid manufacturing and production worker.
Kasten v. Saint-Gobain Performance Plastics
Corp., 556 F. Supp. 2d 941, 948 (W.D. Wis.
200S), App. 81.

Petitioner. alleges that in late 2006, he

began issuing repeated oral complaints to his
supervisors, in compliance with company
reporting procedures, about the legal
implications of employees not clocking in during
the gowning process, and therefore not being
paid for their donning and doffing time. App. 24
n.4, 34. Specifically, Petitioner states that he:
(1) told his Shift Supervisor that the location of
Respondent’s time clocks was illegal; (2) met
with the Human Resources Generalist and
¯ informed her that the location of Respondent’s
time clocks was illegal, and that if Respondent
was challenged in court regarding its time clock
practices, "they would lose"; (3) informed his
 4

Lead Operator that the location of Respondent’s

time clocks was illegal on three or four
occasions; (4) told his Lead Operator that he
was considering starting a lawsuit regarding the
location of the time clocks; and (5) told the
Human Resources Manager and the Director
that he believed the location of the time clocks
was illegal and that if Respondent was
challenged in court, it would lose. App. 34-35.
Respondent denies receiving these complaints.
App. 34.

During the same timeframe, Petitioner

received an increasing number of disciplinary
warnings, a suspension, and ultimately was
terminated. App. 33-35. Petitioner claims that
this discipline and termination was in
retaliation for his complaints of violations of the
FLSA, and Respondent denies retaliation.1 App.
35.

On August 8, 2007, Petitioner filed a

Complaint in the United States District Court
for the Western District of Wisconsin on behalf
of himself and a collective and Rule 23 class,
alleging, inter alia, that Respondent violated the
minimum wage and overtime requirements of
the FLSA, 29 U.S.C. §§ 206-207 and Wisconsin
labor law by failing to. pay its employees for

1 The district court impermissibly adopted disputed facts

and drew inferences against Petitioner regarding the
reason for his disciplinary action, but the ultimate
decision turned on whether oral complaints to the
employer are protected, rather than the disputed matters.
work time spent donning and doffing. App. 73,
85. On June 2, 2008, the District Court entered
partial summary judgment in the plaintiffs’
favor, granted class certification, and held that
Respondent was liable to the class as a matter
of law for failing to compensate employees for
all hours worked. App. 112. "

II. Proceedings Below

A. Summary Judgment in the

District Court

On December 3, 2007, Petitioner filed the

instant case, alleging that Respondent/
retaliated against, him in violation of the FLSA
-by terminating his employment because he filed
oral complaints and indicated that he planned
~o take legal action for Respondent’s violations
of the FLSA. See App. 63. The District Court
for the Western District of Wisconsin exercised
jurisdiction pursuant to 28 U.S.C. § 1331. Id.
Respondent moved for summary judgment, and
on June 19, 2008, the District Court granted
Respondent’s motion on the basis of its’
determination that, as a matter of law, oral
complaints cannot be ."filed" as the statute
requires, and thus can never constitute
protected conduct within the anti-retaliation
provision of the FLSA. App. 71-72.

B. Decision on Appeal

On June 29, 2009, a three-judge panel at

the Seventh Circuit Court of Appeals exercised
 6

jurisdiction pursuant to 28 U.S.C. § 1291 and 28

U.S.C. § 1294(1). App. 32. The panel refused to
give deference to Amicus Curiae Department of
Labor’s position, and affirmed the judgment of
the District Court. App.. 39 n.2. The panel held
that informal intra-company complaints are
protected, but that unwritten oral complaints
are not "filed," and therefore can never come
within the protection of the FLSA anti-
retaliation provision. App. 38, 43. The court
acknowledged its disagreement with other
Circuits, which find that oral complaints to an
employer are protected activity under the FLSA.
App. 41. Nevertheless, the panel confirmed the
district court’s holding that "[o]ne cannot ’file’
an oral complaint; there is no document, such as
a paper or record, to deliver to someone who can
put it in its proper place." App. 39.

C. Denial of Rehearing with Three

Dissenting Judges

Petitioner thereafter sought rehearing,

and the Secretary of Labor and Equal
Employment Opportunity ¯ Commission
("EEOC") joined Petitioner’s position as Amici
Curiae. See App. 17. On October 15, 2009, the
Seventh Circuit denied the petition, but three
Judges issued a lengthy dissenting opinion.
App. 1-2. The dissent stated:

In deeming the statutory language to

reach only written and not oral
complaints, the court has taken a position
contrary to the longstanding view of the
 7

Department of Labor, departed from the

holdings of other circuits, and interpreted
the statutory language in a way. that I
believe is contrary to the understanding
of Congress.

App. 2. The dissent recognized a long list of

statutes which include similar language, and
have been held to encompass protection for oral
complaints. App. 2-3. It contrasted these
.statutes with another lengthylist of statutes in
which Congress "specifically require[s] written
complaints." App. 7. Since the Seventh
Circuit’s decision has such a broad impact on a
.variety of anti-retaliation provisions, which
"serve to protect not just the individual worker,
but the means by which Federal agencies
become aware of unlawful labor practices", the
dissent determined that further consideration
was warranted. App. 3.

ARGUMENT IN SUPPORT OF GRANTING

THE WRIT

The Seventh Circuit adopted an

unprecedented interpretation of the anti-
retaliation provision of the Fair Labor Standards
Act, holding that that provision does not protect a
worker who complains orally - in person or by
~telephone - about ~i violation of the Act.2 Because

~ The only other published decision in agreement with the

Seventh Circuit in this case is at the district court level.
See, e.g., Clevinger v. Motel Sleepers, Inc., 36 F. Supp. 2d
 8

the Equal Pay Act is enforced under the

provisions of the FLSA, a female employee who
complains to her supervisor about a violation of
the Equal Pay Act is also unprotected in the
Seventh Circuit. Moreoverl the panel’s
decision "would apply to an employee’s external
contacts with regulatory officials." App. 9-10.
Accordingly, employees could legally be fired for
telephoning the Department of Labor or EEOC,
or for speaking in person with officials of those
agencies, about violations of the FLSA or the
Equal Pay Act.

Certiorari. is warranted. The decision of

the court of appeals poses a serious obstacle to
the administration of the law in the Seventh
Circuit. The Seventh Circuit’s decision to
legalize retaliation against employees who
attempt to secure their rights under the FLSA
verbally conflicts with the decisions of all other
Federal Courts of Appeals to have considered
the issue, and conflidts with the instructions of
this Court on an important issue of Federal law.
The scope of protection against retaliation is an
issue of exceptional importance in the
administration of the FLSA as well as other
Federal statutes, on which national uniformity
is vital. Petitioner therefore respectfully
petitions for this Court to review the judgment
of the Seventh Circuit Court of Appeals.

322, 324 (W.D. Va. 1999) ("The word ’filed’ clearly denotes
a procedure other than oral.").
 9

THE APPELLATE DECISION

CONFLICTS WITH THEDECISIONS
OF SIX OTHER COURTS OF
APPEALS.

In conflict with the six other Courts of

Appeals that have considered the issue,3 the
Seventh Circuit, in a straightforward but
sweeping holding, ruled that "the phrase ’file any
.complaint’ [in section 215(a)(3) of the FLSA]
requires a plaintiff employee to submit some sort
of writing." App. 43. On this interpretation,
section 215(a)(3) does not apply to oral complaints
in the Seventh Circuit, either in person (as

3 The section 215(a)(3) conflict most frequently discussed

relates to whether complaints must be "formally" filed
with a court or administrative agency. Eight circuits hold
that internal complaints to an employer are protected.
See, e.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617
(5th Cir. 2008); Lambert v. Ackerley, 180 F.3d 997 (9th
Cir. 1999) (en banc), cert., denied, 528 U.S. 1116 (2000);
Valerio v. P~tnam Assocs., Inc., 173 F.3d 35 (lst Cir.
1999); EEOC v. Romeo Cmty. Sch., 976 F.2d 985 (6th Cir.
1992); EEOC v. White & Son Enters., 881 F.2d 1006 (llth
Cir. 1989); Brock v. Richardson, 812 F.2d 121 (3d Cir.
1987); Love v. RE~MAX of Am., Inc., 738 F.2d 383 (10th
Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d
179 (Sth Cir. 1975). Two circuits hold that complaints
must be filed in cp. urts or administrative agencies.
.Whitten v. City of Easley, 62 Fed. Appx. 477 (4th Cir.
2003) (unpublished); Ball v. Memphis Bar-B-Q Co., Inc.,
228 F.3d 360 (4th Cir. 2000); Lambert v. Genesee Hosp.,
I0 F.3d 46 (2d Cir. 1993) cert. denied, 511 U.S. 1052
(1994). Because the Seventh Circuit correctly determined
that complaints to an employer are protected, the only
conflict at issue is whether oral complaints are protected
activity, regardless of the venue in which they are raised.
 10

occurred in this case) or by telephone, regardless

of the venue in which they are raised.

The Seventh Circuit’s divergence from

other Circuits on .this issue is well-established.
¯ The Seventh Circuit candidly recognized that
"other [Courts of Appeals] have found oral
domplaints to be protected activity," correctly
citing such interpretations of section 215(a)(3) by
the Sixth, Eighth and Eleventh Circuits. App. 41.
In their dissent from the denial of rehearing en
banc, several members of the Court of Appeals
also noted that the panel had "rejected the
multiple decisions from other circuits recognizing
that oral as well as written complaints are
protected by the statute.!’. App. 5. Likewise, the
district court noted that the narrow
interpretation of section 215(a)(3) proposed by the
Defendant, and ultimately adopted by the
Seventh Circuit, conflicted with decisions in
Several circuits. App. 68. In their amicus brief
supporting rehearing en banc, the Secretary of
Labor and EEOC repeatedly pointed out that the
panel decision "conflicts with conclusions of the
Sixth, Eighth, and Eleventh Circuits that
internal complaints are protected, even when
communicated orally." App. 18.

The court below acknowledged that the

Sixth Circuit holds that oral complaints are
protected by section 215(a)(3). App. 41. In EEOC
v. Romeo Community: Schools,. an .Equal Pay Act
retaliation case governed by section 215(a)(3), the
employee suffered retaliation after she orally
 11

"complained about her .pay rate.., but was told

that her pay would not be raised." 976 F. 2d at
986. The employee "told [school officials] she
believed they were ’breaking some sort of law’ by
paying her lower wages than . . . paid to male
[workers]." Id. at 989. The Sixth Circuit held
that "it is the assertion of statutory rights which
is the triggering factor, not the filing of a formal
complaint." Id. In Moore v. Freeman, 355 F. 3d
558 (6th Cir. 2004), the Sixth Circuit upheld a
retaliation claim based on an oral complaint
under the FLSA and Equal Pay Act. The plaintiff
in that case had "raised the [salary] issue [with
his supervisor] at a... staff meeting." Id. at 561.
The Sixth Circuit held:

[The plaintiff] was clearly engaged in

statutorily-protected activity, given the
fact that the anti-retaliation provisions of
the FLSA can be triggered by informal
complaints.., and that the defendants do
not dispute that [the plaintiff] protested to
[his supervisor] about his unequal pay.

355 F. 3d at 562. In Moon v. Transport Drivers,

Inc., the Sixth Circuit again upheld a retaliation
claim involving an oral complaint, applying the
anti-retaliation provision4 of the Surface
Transportation Assistance Act ("STAA"), which
has language identical to section 215(a)(3). 836

4 The STAA forbids retaliation "because such employee...

has filed any complaint.., relating to a violation of [certain
provisions]." 49 U.S.C. § 2305(a).
 12

F. 2d 226, 228 (6th Cir. 1987) (plaintiff "made a

number of oral complaints to... his supervisor..
¯ , thereby engaging in protected activity under
the STAA.").

The Eighth Circuit also holds that internal

oral complaints about FLSA violations are
protected by section 215(a)(3). In Brennan v.
Maxey’s Yamaha, Inc., 513 F. 2d 179, the
dismissed employee had on two occasions voiced
her objection to actions~ that the employer was
taking in violation of the FLSA.6 The Eighth
Circuit stated:

[The employee’s] protest of what she

believed to be unlawful conduct on [the
employer’s] part was an act protected from
reprisals .... Her discharge was a direct
result of her insistence upon receiving [her
rights] under the Act .... [H]er lawful
assertion of rights based on that belief
[that the employer was violating the
FLSA] must be protected.

~ Following an agreement with the Department of Labor to

pay back wages to several employees, the company
president insisted that several of those workers endorse
their back wage checks to the company. Maxey’s Yamaha,
.513 F. 2d at 180.

~ The employee explained, "I told him that it was illegal,

that it was wrong, and that if they happen to be caught that
they would be in serious trouble, but [the company
president] said to me that ff I didn’t say anything, no one
would find out" and "I told him again that I didn’t approve
of the tactics he was using"). Id. at 182.
 13

Id. at 181.

The Eleventh Circuit, as the panel

recognized, has also held that oral complaints are
protected by section 215(a)(3). App. 41. In EEOC
v. White and Son Enterprises, 881 F. 2d 1006,
several female employees twice complained
verbally that they were being paid less than men
doing the same work.~ The employer argued that
the actions of the women did not constitute
"filling] a complaint" and thus were not among
"the acts specified in the FLSA." Id. at 1011. The
Eleventh Circuit rejected that narrow
interpretation of section 215(a)(3), holding that
the oral complaints to management were indeed
protected:

[E]ven though the [dismissed workers] had

not yet filed formal charges of
discrimination [under the Equal Pay Act]
with the EEOC, the discharge by appellant
can still be retaliatory in nature .... [W]e

The court described the following:

When the [terminated female employees] learned of

the pay increase [for male co-workers], several of
them met with [a co-owner of the firm] to ask why
they did not receive as raise as did the m~n and to
request equal pay .... The next morning, when [the
other owner] arrived, the women were waiting to
speak to him. [The other owner] asked the women
if there was a problem, and they replied that there
was. [The other owner] then stated that if it was
about a raise, there would be none...

Id. at 1007-08, 1011.

 14

conclude that the unofficial complaints

expressed by the women to their employer
about unequal pay constitute an assertion
of rights protected under the statute ....
The anti-retaliation provision of the FLSA
was designed to prevent fear of economic
retaliation by an employer against an
employee who chose to voice such a
grievance.

Id. at 1011.

The Fifth Circuit also holds that oral

statements can constitute protected activity.
Hagan, 529 F. 3d 617. In Hagan v. Echostar
Satellite, L.L.C., the plaintiff was dismissed
because of statements he made in two meetings -
.one with his supervisors and another with his
Subordinates - regarding a company decision that
reduced certain overtime pay.s Id. The Fifth
Circuit held that a worker’s oral statements to
superiors or subordinates could constitute
protected activity. Id. at 626.

The interpretation of.section 215(a)(3) in

the Ninth Circuit also expressly includes oral
complaints to supervisors.

[S]o long as an employee communicates

the substance of his allegations to the

8 The first statement was at a "December . . . 2004 . . .

managers’ meeting." [d. at 620. The second statement
occurred when the plaintiff met with several subordinates
"[l]ater that day." Id. at 620-21.
 15

employer (e.g., that the employer has

failed to pay adequate overtime, or has
failed to pay the .minimum wage), he is
protected by § 2i5(a)(3). As several
circuits have held, moreover, the employee
may communicate such allegations orally
or in writing. ""

Ackerley, 180 F. 3d at 1007-08.

Finally, the Tenth Circuit held that an oral

request for overtime pay was a protected activity
under section 215(a)(3) in Pacheco v. Whiting
Farms, Inc., 365 F. 3d 1199 (10th Cir. 2004). The
.plaintiff asked the company vice-president in-
person for overtime pay.9 The Tenth Circuit held
that section 215(a)(3) applied to that request:

[W]e have held an employee’s unofficial

assertion of rights under § 215(a)(3) is...
protected activity. An employee’s
request for overtime wages is protected
activity in the form of an unofficial
assertion of FLSA rights .... In this case,
Plaintiff engaged in protected activity
when she requested overtime wages.

365 F. 3d at 1206-07. See also Love, 738 F. 2d at

387 C[w]hen the ’immediate cause or motivating
factor of a discharge is the employee’s assertion of

9 "Plaintiff asked [the vice-president] if the ’packaging

department could get overtime like shipping:’ [The vice-
president] appeared ’nervous and shocked’ upon Plaintiffs
.inquiry, but informed Plaintiff. he would look into the
matter." Pacheco, 365 F. 3d at 1202.
 16

statutory rights, the discharge is discriminatory

under § 215(a)(3)’... The Act also applies to the
unofficial assertion of rights through complaints
at work.") (quoting Maxey’s Yamaha, 513 F.2d at
181).

In sum, the Seventh Circuit’s decision

creates a clear disagreement among the circuits
which requires resolution. The practical effect
of this split is that in an organization such as
.Respondent’s, which operates across the
country, employees in the Seventh Circuit will
receive protection only if they file written
complaints, while employees in the Sixth,
iEighth, Eleventh, Fifth, Ninth, and Tenth
Circuits will receive protection for issuing oral
complaints. For employees who travel, report
complaints to a national headquarters office, or
use complaint hotlines, the confusion among the
Circuits is unworkable. This kind of national
legal confusion necessitates review and
clarification by the Court.

II. THE QUESTION PRESENTED IS OF

EXCEPTIONAL IMPORTANCE.

In the Court of Appeals, the Secretary of

Labor warned that "a decision . . . that internal
Complaints that are oral are not covered . . .
would have an adverse impact upon the
administration of the Department of Labor’s
programs", and characterized the Seventh
Circuit’s decision as presenting a question of
"exceptional importance." App. 18, 46. The
question presented here affects not only the
implementation of the FLSA anti-retaliation
provision, but will also have an enormous
impact, on the enforceability of the FLSA as a
whole, as well as the Courts of Appeals’
interpretations of a variety of other retaliation
provisions in similar Federal statutes. The
-answer to this important question will therefore
impact millions of working Americans.

To ensure an adequate flow of

information to the Department of Labor in an
effort to enable enforcement of the FLSA,
Congress chose to rely on employee reports of
violations. Particularly in off-the-clock cases
like Petitioner’s, employee reports are the sole
source of information ¯ regarding FLSA
violations. As this Court explained in Mitchell
v. Robert DeMario Jewelry, Inc.:

For weighty practical and other reasons,

Congress did not seek to secure
compliance with prescribed standards
through continuing detailed Federal
supervision or inspection of payrolls.
Rather it chose to rely on information and
complaints received from employees
seeking to vindicate rights claimed to
have been denied. Plainly, effective
enforcement could thus only be expected
if employees felt free to approach officials
with their grievances .... For it needs no
argument to show that fear of economic
retaliation might often operate to induce
 18

aggrieved employees quietly to accept

substandard conditions.

361 U.S. 288, 292 (1960) (citations omitted). See

also Hearings on the Fair Labor Standards
Amendments of 1977, S. Comm. on Human
Resources, Subcomm. on Labor, 95th Cong., 1st
Sess. 17 (1977), App. 123; H.R. Conf. Rep. No.
2738, 75th Cong., 3d Sess., at 10, 26 (1938),
App. 115.

However, the Seventh Circuit decision

largely eviscerates the statute’s protection for
workers who bring violations of the FLSA or the
Equal Pay Act to their employers’ attention. The
Secretary of Labor pointed out that "in the
workplace an employee is more likely to approach
an employer with an oral complaint about wage
and hour practices, rather than providing a
written document.’’I° App. 59. However,
¯ employees who wish to resolve an issue
informally with their employers will think twice
before doing so if they are aware of the potential
consequences in the Seventh Circuit.11

~o See e.g., Nicolaou v. Horizon Media, Inc., 402 F.3d 325

(2d Cir. 2005); Knickerbocker o. City of Stockton, 81 F.3d
907 (9tl~ Cir. 1996); Genesee Hosp., 10 F.3d at 55; Ergo v.
Int~ Merch. Servs., Inc., 519 F. Supp. 2d 765, 778 (N.D. Ill.
2007); Hernandez v. City Wide Insulation of Madison, [nc.,
508 F. Supp. 2d 682, 690 (E.D. Wis. 2007); Clevinger, 36 F.
Supp. 2d 322.

.~ Many workers in the Seventh Circuit will not be able to

avoid the consequences of the Seventh Circuit’s decision by
 As the Department of Labor explained, "a
decision . . . that internal complaints that are
oral are not covered, would have an adverse
impact upon the effective administration of the
Department of Labor’s programs", including a
number of other legal schemes in addition to the
FLSA. App. 46. For example, anti-retaliation
provisions that use similar language to prohibit
reprisals against a worker who "filed a
complaint," include the Occupational Safety and
Health Act,1~- the Railway Labor Act,13 the
Surface Transportation Assistance Act,14 the
Migrant and Seasonal Agricultural Worker
Protection Act, l~ and the Employee. Polygraph

circumspectly Putting their complaints in writing and never

mentioning them out loud. Most employees are laymen
with no knowledge of Seventh Circuit case law and no
access to skilled counsel who might advise them to raise
such matters only in documents.

’~ 29 U.S.C. § 660(c)(1) (proscribing retaliation against "any

employee because such employee has filed any complaint..
¯ under or related to this chapter...").

,3 49 U.S.C. § 20109(a)(3) (proscribing retaliation against

railroad workers who "file a complaint" about certain safety
issues)¯

,4 49 U.S.C. § 31105(a)(1)(A)(i) (proscribing retaliation

against employee because he "has filed a complaint, related
to certain motor vehicle safety issues).

~5 29 U.S.C. § 1855(a) (proscribing retaliation against

worker who "has,. with just cause, filed any complaint . . i
under or related to this. chapter").
 2O

Protection Act.16 Oral complaints under those

statutes and others~7 may no longer receive
protection against retaliation in the Seventh
Circuit.

The Secretary of Labor has further

obj ecte d that "[p]rotecting only written
complaints under Section 15(a)(3) would
mean, for example, that an employee who places
a telephone call to the Department of Labor
would not be protected." Brief for the Secretary
of Labor as Amicus Curiae Supporting Appellant
in Part at 14, Kilpatrick v. Service Merchandise,
Inc., No. 98-31423 (6th Cir. Apr. 22, 1999),
available at 1999 WL 33729234. This is
extremely problematic, because both the EEOC
and the Wage and Hour Division indicate on their
websites that aggrieved employees should call a
toll-free number to make complaints,is Even the

~6 29 U.S.C. § 2002(4)(A) (proscribing retaliation against an

employee because the employee "has filed any complaint").

17 See 5 U.S.C. § 7116(a)(4) (proscribing retaliation against

.certain Federal employees because "the employee has filed a
complaint" related to labor management relations); 22
U.S.C. § 4115(a)(4) (proscribing discrimination against a
State Department employee "because the employee has
filed a complaint" related to labor management relations);
Workforce Investment Act, 29 U.S.C. § 2934(f) (requiring
Secretary to take remedial action ff a grant recipient has
discriminated against an individual because such individual
"has fried any complaint").

is The Wage and Hour Division call center phone number is

displayed at www.dol.gov/whcYcontact_us.htm. The EEOC
 21

FLSA poster required to be displayed in millions

of worksites across the nation contains that same
number.19 The uniquely narrow interpretation of
section 215(a)(3) issued by the Seventh Circuit
means that callers from Illinois, Indiana and
Wisconsin, unlike callers from elsewhere in the
United States, may lawfully be subject to
retaliation for speaking with the Division or
Commission. It. would be wholly impracticable
for the national call centers for these two
agencies to provide different information, counsel
and warnings depending on the place of
employment of each particular caller.

The Seventh Circuit’s opinion will no

doubt have a tremendous chilling effect on
employee reporting, encourage prompt
retaliatory action if employers hear of the
possibility of an employee questioning the
propriety of wage payments, and nearly.
obliterate the viability of enforcement
mechanisms written into not only the FLSA, but
other Federal laws employing similar language.
Because the question presented involves an
extremely important issue of Federal law,
certiorari should be granted.

call center phone number is d~splayed at

www.eeoc.gov/contact/index.cfm.

The toll-free number for the Wage and Hour Division is 1-

866-4-USWAGE.
 22

III. THE COURT OF APPEALS’ DECISION

IS INCORRECT, AND RUNS
CONTRARY TO THIS COURT’S PRIOR
GUIDANCE ON INTERPRETING THE
FLSA~

Moreover, the Seventh Circuit’s decision is

incorrect. The decision rests on a single mistaken
premise: that the verb "file" used in the phrase
"filed any complaint" necessarily requires a
written document. App.. 43, The court below
based its narrow interpretation of section
215(a)(3) on one definition of the word "file" found
in a single dictionary, and rejected the
government’s argument that "file" could also
mean "submit," on the grounds that the
alternative meaning "seems to us overbroad."20
App. 39.

The Seventh Circuit’s decision conflicts

with this Court’s instructions in Tennessee Coal,

20 As Justice Scalia explained in his concurring opinion in

Green v. Bock Laundry, 490 U.S. 504, 529 (1989), when
~hoosing among alternative available definitions of a legal
term, it is most appropriate to choose the definition which
does the "least violence to the text" and is most
"consistent with the policy of law in general and the [Act
at issue] in particular." Here, the Seventh Circuit did not
explain why it rejected the definition of "to file" as "to
submit", which was the .option .which does the least
violence to the FLSA, is the most consistent with. the
policy of the law in general, and the FLSA’s remedial
purposes specifically.
 23

Iron and Railroad Co. v. Muscoda Local 123;

321 U.S. 590 (1944), which called for an
.expansive and practical interpretation of the
FLSA.21 In Tennessee Coal, the Court set forth
guidelines for statutory interpretation of the
FLSA. Id. at 592. The Court reasoned that the
meaning of the word "work" in the FLSA could
"be resolved only by discarding formalities and
adopting a realistic attitude, recognizing that
we are dealing with human beings and with a
statute that is intended to secure to them the
fruits of their toil and exertion." Id. The Court
instructed that the provisions of the FLSA "are
remedial and humanitarian in purpose.
Such a statute must not be interpreted or
applied in a narrow, grudging manner." 321
U.S. at 597. However, the Seventh Circuit
failed to confer any weight to the Congressional
remedial and humanitarian purpose of the
FLSA, and ignored the Court’s instructions to
resolves questions of statutory construction.
¯ under the FLS/k "by discarding formalities and
adopting a realistic attitude, recognizing that
We are dealing with human beings". Id. at 592.

~ The Seventh Circuit’s holding is also contrary in spirit

to this Court’s recent decisions in Craw ford v.
Metropolitan Government of Nashville and Davidson
County, 129 S. Ct. 846 (2009), Gomez-Perez v. Potter, 128
S. Ct. 1931 (2008), and CBOCS West, Inc. v. Humphries,
128 S. Ct. 1951 (2008), which indicate that anti-
retaliation provisions should be interpreted in a manner
which best-effectuates the broad remedial goals of the
statutes in which they appear.
 24

Had the Seventh Circuit applied these

principles in an effort to find an option that would
effectuate the Congressional purpose of section
215(a)(3), it would have discovered that "file" is
defined as "to submit" in other dictionaries.
American Heritage Dictionary,. at 658, (4th ed.
2000), App. 114 (defining "files" as "3. To send or
submit (copy) to a newspaper. 4. To carry out
the first stage of..."); App. 58-59 (citing New
Shorter Oxford English Dictionary, 947 (1993)
(defining "file" as "[to] .submit (an application for
a patent, a petition for divorce, etc.) to the
appropriate authority"); Random House College
Dictionary, 493 (1982) (defining "file" as "[t]o
submit (an application, petition, etc.)"; American
Heritage Desk Dictionary, 369 (1981) (defining
"file" as "to present for consideration"). A number
of lower courts have also held in other contexts
that "file" can encompass an oral statement.22

For example, the Oregon Supreme Court explained:

[The defendant] suggests that the term

"filed" strongly implies a writing, t~ut while
that may be true with respect to court
filings, we are not persuaded that the term
carries that some connotation in the world
of insurance and beyond. Certainly car and
unemployment insurance Claims often are
"filed" orally by .telephone, as are
newspaper stories and ordinary complaints
to businesses and government agencies.

Parks v. Farmers Ins. Co. of Or., ---P.3d--- 2009 WL

4981699, at *9 (Or. Dec. 24, 2009); See also Mid-Century
Ins. Co. V. Barclay, 880 S.W. 2d 807, 810 (Tex. App. 1994)
(term "filed" refers to "action in providing . . . whatever
 25

The phrase "file a complaint", like the

phrases "submit a complaint" and "make a
complaint," has an idiomatic meaning: to make a
complaint .known to the responsible party. If the
verb "file" were really limited to documents, then
the phrase "file an oral complaint" would be
nonsense. As the dissenting judges noted in this
case, however, several Federal regulations and a
large number of Federal judicial and
administrative decisions which refer to the
"filing" of an "oral complaint" or "oral
grievance.’’23 App. 6. At the state level there are

notice was required"). See also App. 58 (quoting Marshall

~. Power City.Elec., Inc., No. 77-197, 1979 WL 23049, at
"1-2 (E.D. Wash. Oct. 23, 1979) ("The statute [§ 215(a)(3)
nowhere explicitly requires a written complaint to confer
protection .... The Court further holds that the term
’i’fled’ as used in this clause means ’lodged’ and is not
limited to a written form of complaint.’.’).

~3 See e.g., Don Bassette Aviation, Inc., DMS FAA-2005-

20640, DMS FAA 2005-20641, 2006 WL 728858 (Dep’t Of
Transp. Mar. 17, 2006) (~’filed oral Motions to dismiss");
East E. Ky. Paving Corp., 293 NLRB 1132, 1133 (1989)
("filed an oral grievance"); I.R.S. Priv. Ltr: Rul., PLR
8630019, 1986 WL 369778 (Apr. 23, 1986) ("the nurses
regularly file oral . . . reports"); G~y Am. Airways, Inc., 4
N.T.S.B. 886, 877 n.3 (May 20, 1983) ("notice of appeal was
filed orally"); Motor Convoy, Inc., 252 NLRB 1253, 1257
(1980) (the employee "filed . . . many oral complaints")
(reversed on other grounds); Ormet Corp., OSHRC Dkt. No.
76-4397, 1978 WL 6690 (Occupational .Safety Health
Review Comm’n May 18, 1978) (two motions " filed orally
.at the commencement of the trial’!).
 26.

also statutes, regulations,24 and a substantial

number of judicial decisions reaching back almost
a century25 which use. "file" to refer to oral
complaints, grievances or other statements.
Public and private organizations (including the
Defendant in this case) provide employees and
members of the public with a toll-free number
and invite them to "file a complaint.’’26

2~ Minn. Stat. § 144.4808(2) ("may be fried orally by

telephone"); Tenn. Code § 49-6-3401(c)(4)(B) ("appeals must
be filed, orally or in writing’~; Miss. Code § 69-47-23(4)
("may file a written or oral complaint"); Nev. Rev. Stat. §
618.705 (imposing penalties on "[a]ny person who.., files a
false oral or written complaint"); N.J. Stat. § 30:4C-12 (in
certain circumstances "a written or oral complaint may be
fried"); 2007 ME Reg. Text 46674 (hiS) § 2(A) ("Complaints
may be filed orally"). ¯

~ Donovan v. Walsh, No. 287326, 2005 WL 1208964 at *2

(Mass. Land Ct. May 23, 2005) (’.’filed orally a mo~ion");
State v. Howard, 805 So. 2d 1247, 1256 (La. Ct. App. 2002)
("motion for continuance filed orally"); Grievance of McCort,
650 A.2d 504, 506 n.1 (Vt. 1994) ("complaint . . . may be
fried orally’~; State v. Riggins, 508 So. 2d 918, 919 (La. Ct.
App. 1987) ("The State filed an oral multiple bill of
information"); In re Estate of Shields v. Abdallan, No.
44137, 1982 WL 5386, at *1 (Ohio Ct. App. May 27, 1982)
(~’claim... was filed orally with counsel"); Commonwealth v.
Molina, 346 A.2d 351, n. 4 (Pa. Super. Ct. 1976) ("a writ of
coram nobis could be filed orally"); Richmond v. Newson, 17
So. 2d 635, 636 (La. Ct. App. 1944) ("right to file oral
¯ pleadings"); Ashley v. Tri-State Lumber Co., 91 S.E. 813,
814 (W. Va. 1917) ("court permits such demurrer to be filed
orally").

26 For example, the public is invited to file a complaint.

orally in the instructions offered on the following websites
 27

Moreover, "it is noteworthy that Congress

in many other statutes has specifically required
written complaints .... These .statutes suggest
that when Congress means to require that
complaints take a written form, it sets forth that
requirement expressly." 27 App. 8. Because
Congress did not use such language in section
215(a)(3), it seems contrary to Congressional
intent to read the words "in writing" into the
statutory text.

Moreover, the decision not only leaves an

employee who makes an oral complaint
unprotected, but it gives an employer ~ perverse

for the States of Texas, www.dot.state.tx.us, Minnesota,

~vww.oah.state.mn.us, and New York, www.ins.state.ny.us.
See also n. 18-19, supra.

~ See, e.g., 2 U.S.C. § 437g(a)(1) "complaint shall be in

writing")(; 5 U.S.C. § 3330a(a)(2)(B) (same); 7 U.S.C. §
193(a) ("complaint in writing"); 7 U.S.C. § 228b-2(a)
(same); 7 U.S.C. § 1599(a) (same); 15 U.S.C. § 80b-9(a)
("file with it a statement in writing"); 19 U.S.C. § 2561(a)
(Federal agency may not consider a complaint unless the
agency is informed "in writing"); 33 U.S.C. § 392 ("a
statement of complaint, verified by oath in writing"); 38
U.S.C. § 4322(b) ("complaint-shall be in writing..."); 42
U.S.C. § 2000b(a) ("complaint in writing"); 42 U.S,C. §
2000c-6(a) (same); 42 U.S.C. § 3610(a)(1)(A)(ii)
("complaints shall be in writing ."); 42 U.S.C. §
!5512(a)(2)(C) ("complaint fried.., shall be in writing and
notarized, and signed and sworn by the person filing the
complaint."); 47 U.S.C. § 554(g) ("A complaint by any such
person shall be in writing, and shall be signed and sworn
to by that person."); 49 U.S.C. § 46101(a)(1) ("A person
.may file a complaint in writing...").
 28¸

incentive to fire or otherwise discriminate against

an employee before he or she has had an
opportunity to engage . in activity that is
protected. See also LundervoId v. Core-Mark
Int’l, Inc., No. Civ. 96-1542-AS, 1997 WL 907915
at * 2 (D. Or. 1997) (absence of protection creates
"a perverse incentive to immediately terminate
any employee who complains about wage and
hour violations before the employee can [engage
in protected activity]"). In Mitchell, this Court
reasoned that the anti-retaliation provision of
the FLSA must be interpreted in light of the
practical realities weighing against an
employee’s .decision to report her employer’s
alleged violations:

Resort to statutory remedies might thus

often take on the character of a. calculated
risk, with restitution of partial
deficiencies in wages due for past work
perhaps obtainable only. at the cost of
irremediable entire 10ss of pay for an
unpredictable period. Faced with such
alternatives, employees understandably
might decide that matters had best be left
.as they are. We cannot read the Act as
presenting those it sought to protect with
what is little more than a Hobson’s
choice.

-361 U.S at 292. Accordingly, any interpretation

that discourages an employee from complaining
l~o his employer about minimum wage and
overtime violations undermines the FLSA. Id.
 29

The Seventh Circuit’s decision presents

employees with a "Hobson’s choice" of." 1)
Complaining internally about FLSA violations
and leaving themselves unprotected from
retaliation; 2).becoming their employer’s formal
antagonist by filing a formal written complaint;
or 3) deciding "that matters had best be left as
they are." See id. at 293. The decision therefore
leaves unprotected precisely those employees
whom it ought to benefit: those with FLSA-
related concerns who do not wish to "rock the
boat" with the employer any more than
necessary, and who desire amicable resolutions
of workplace disputes: Accordingly, the Court
should grant the petition for certiorari to ensure
consistent and adequate enforcement of Federal
law.

CONCLUSION

For the above reasons, Petitioner

respectfully requests that this petition for a writ
of certiorari be granted to review the judgment
and opinion of the Court of Appeals for the
Seventh Circuit. In the alternative, the Solicitor
General should be invited to file a brief
expressing the views of the United States.
 130

Respectfull~ubmitted this ~th day of

NICH~ PLLP
Jam~t~as~’r
C~u~sel of Record
~ar #1001474
E-mail: kaste~a.com,
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Adrianna S. Haugen
WI Bar #1064788
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