In a 6:2 decision (with Kagan recused), the Supreme Court relied upon the “basic objectives” of the Fair Labor Standards Act (FLSA) to resolve ambiguity that had let to a circuit split regarding whether, for a retaliation claim, the statutory term “filed any complaint” included oral, as well as written, complaints.
The decision, written by Justice Breyer, also deferred to the interpretation of the federal government. The majority refused to reach the issue of whether FLSA retaliation claims could apply in the context of a complaint to the employer, rather than the government. The majority refused to address that issue, because even though it was addressed in the decisions below, the issue was NOT raised in the brief in opposition to certiorari. Justices Scalia and Thomas, dissenting, would have reached the issue and determined that the term “complaint” was limited to complaints directed to the government. Kasten v. Saint-Gobain Performance Plastics Corp.,http://www.supremecourt.gov/opinions/10pdf/09-834.pdf (March 22, 2011). This is the second case this year in which the Supreme Court has ruled in favor of a plaintiff in a retaliation case, continuing its trend.
The suit alleged that Kevin Kasten complained to his employer about the location of the time clock which prevented workers from receiving credit for the time they spent putting on and taking off their work clothes. He allegedly repeatedly told his employer that the location of the time clocks violated the FLSA. He alleged that he was discharged in retaliation for complaining about the location of the time clocks. The employer disputed that Kasten made these complaints and asserted that Kasten was dismissed for failing to record his time on the time clocks. The district court granted summary judgment to the employer, holding that the FLSA did not cover oral complaints and the 7th Cir. agreed.
Reversing, the Court accepted the allegations in the complaint as true for the purpose of deciding the summary judgment motion. Justice Breyer began his analysis by establishing that the word “filed” was ambiguous and in different statutory schemes has sometimes meant only written complaints and other times encompassed both written and oral complaints. The Court concluded that “text alone” could not resolve the question of whether “filed” included oral complaints.
Breyer posited that limiting “complaints” to written complaints would “undermine the Act’s basic objectives.” He asked: “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?” In addition, rejecting oral complaints would limit the government’s ability to use hotlines, interviews, and other oral methods of receiving complaints.
The decision accords “weight” to the opinion of the government, and notes that the Equal Employment Opportunity Commission and the Department of Labor have interpreted “complaints” to include oral complaints for many years. The Court accorded Skidmore deference to the views of the agency. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) (giving weight to a persuasive articulation of views within an agency’s area of expertise). The Court stated that the agency’s reasonable views “add force to our conclusion.”
The Court summarily refused to consider the question that captured the two dissenting votes. The Court noted that the employer had advanced the claim in the district and circuit court that the anti-retaliation provision was applicable only to complaints filed with the government. Both lower courts ruled against the employer. The employer did not address this issue in its opposition to certiorari. Based on the employer’s failure to address the issue in the certiorari stage, the Court refused to rule on the issue.
Justice Scalia, joined by Justice Thomas, would have held that complaints to the employer were not covered by the FLSA. Scalia asserted that the text was clear and therefore there was “no need to resort to the abstractions of congressional purpose.” He suggested that Congress “may” not have wanted to expose employers to the risk of such litigation.
Scalia ridiculed the majority for comparing the FLSA to recent statutes in order to ascertain the intended meaning of the text. He stated: “While the jurisprudence of this Court has sometimes sanctioned a ‘living Constitution,’ it has never approved a living United States Code. What Congress enacted in 1938 must be applied according to its terms, and not according to what a modern Congress (or this Court) would deem desirable.”
The dissent also asserted that no deference to the government was warranted. Going too far for Justice Thomas (who refused to join the applicable footnote), Scalia derided Skidmore deference as “incoherent.” He suggested that under recent precedent, “deference is appropriate only when Congress has given the agency authority to make rules carrying the force of law.” He incorrectly cites Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006), which in fact describes Skidmore deference with approval.
