Appeal from the United States District Court for the Western District of Wisconsin. No. 07-C-0686-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: *fn1FLAUM, Circuit Judge.
Before BAUER and FLAUM, Circuit Judges, and KAPALA, District Judge.
Plaintiff Kevin Kasten appeals the district court's grant of summary judgment to defendant Saint-Gobain Performance Plastics Corporation ("Saint-Gobain"). Kasten claims that the district court erred in its interpretation of the Fair Labor Standards Act when it determined that Kasten had not suffered retaliation within the meaning of the statute. For the reasons explained below, we affirm the judgment of the district court.
Defendant Saint-Gobain is a corporation that manufactures a variety of high-performance materials at facilities throughout the country. Plaintiff Kevin Kasten worked in Saint-Gobain's Portage, Wisconsin facility from October 2003 to December 2006.
In order to receive their weekly paychecks, Saint-Gobain hourly employees must use a time card to swipe in and out of an on-sight Kronos time clock. On February 13, 2006, Kasten received a "Disciplinary Action Warning Notice - Verbal Counseling Warning" from Saint-Gobain because of several "issues" Kasten had with regard to punching in and out on the Kronos time clocks. The notice stated that "[i]f the same or any other violation occurs in the subsequent 12-month period from this date of verbal reminder, a written warning may be issued." Kasten signed the notice, acknowledging that he read and understood it.
On August 31, 2006, Kasten received a written warning from defendant, again related to swiping in and out on the Kronos clocks. The notice stated that "[i]f the same or any other violation occurs in the subsequent 12-month period from this date [sic] will result in further disciplinary action up to and including termination." Kasten signed the written warning, again acknowl-edging that he read and understood it.
On November 10, 2006, plaintiff received yet another written warning from Saint-Gobain for failure to swipe in and out, this time accompanied by a one day disciplinary suspension. The warning stated that "[t]his is the last step of the discipline process" and that if another violation occurred, further discipline, including termination, could result. Kasten signed the warning, again acknowledging that he read and understood it.
Plaintiff alleges (though defendant disputes) that from October through December, 2006, he verbally complained to his supervisors about the legality of the location of SaintGobain's time clocks. Specifically, Kasten claims that he told his supervisors that the location of the Kronos clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Regarding his complaints, plaintiff alleges (1) that he told Dennis Woolverton (his shift supervisor) that he believed the location of defendant's time clocks was illegal; (2) that he told Lani Williams (a Human Resources generalist) that the location of the time clocks was illegal; (3) that he told April Luther (a "Lead Operator" and apparently another of Kasten's supervisors) that the location of the time clocks was illegal; and (4) that he told Luther that he was thinking of commencing a lawsuit regarding the location of defendant's time clocks. Saint-Gobain denies that Kasten ever told any of his supervisors or any human resources personnel that he believed that the clock locations were illegal.
On December 6, 2006, Saint-Gobain suspended Kasten on the ground that he had violated its policy regarding time clock punching for the fourth time. Kasten claims that at a meeting regarding this suspension, he again verbally told his supervisors that he believed the location of the clocks was illegal and that if he challenged the company in court regarding the location of the clocks the company would lose. Saint-Grobain disputes that Kasten complained about the time clocks at this meeting. On December 11, 2006, Human Resources Manager Dennis Brown told Kasten over the phone that Saint-Gobain had decided to terminate his employment.
Kasten filed suit under the FLSA, claiming that he had been terminated in retaliation for his verbal complaints regarding the location of the time clocks. The district court granted summary judgment to defendant, finding that Kasten had not engaged in protected activity because he had not "filed any complaint" about the allegedly illegal location of the time clocks. Kasten appeals.
The FLSA provides private remedies for employees who have suffered adverse employment actions as a result of engaging in certain protected activities. Section 215(a)(3) of the statute defines the scope ...