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    Clocking In: Federal Appeals Court Sides with Employee in Retaliation Suit

    Joe Forward
    Legal Writer

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    title Nov. 30, 2012 – Kevin Kasten kept forgetting to clock in for work, which violated company policy. Employees who didn’t punch in or out on time, despite their diligent attendance, could accumulate enough disciplinary points to be suspended or terminated.

    Eventually, Kasten’s Portage-based employer terminated him for this reason. In 2007, Kasten filed a civil action under the Fair Labor Standards Act (FLSA). He said his employer, Saint-Gobain Performance Plastics Corporation, retaliated against him for alleging FLSA violations.

    Under the FLSA, employers can’t discharge or discriminate against employees for complaining that the employer is violating the FLSA.

    Kasten alleged that, before he was fired, he orally complained that Saint-Gobain was violating FLSA wage and hour laws by positioning time clocks in locations that were not easily accessible.

    The case went to the U.S. Supreme Court on the question of whether “oral complaints” constitute protected activity under the anti-retaliation provisions of the FLSA. The nation’s high court said oral complaints can be protected, and remanded the case to the district court.

    On remand, the U.S. District Court for the Western District of Wisconsin ruled that Kasten’s employer received a fair notice that Kasten was asserting rights under FLSA. However, it ruled that Kasten could not overcome summary judgment on the issue of causation.

    But a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit reversed in Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-1671 (Nov. 30, 2012).

    “Kasten has raised a genuine issue of material fact as to causation under the direct method of proof,” wrote Judge Joel Flaum for the panel. “He has presented several varieties of circumstantial evidence which create a permissible jury inference of retaliation.”

    The panel noted evidence that his discharge involved suspicious timing, ambiguous statements and behavior, and “evidence of pretextual reasoning for his discharge.”

    Kasten alleged that he was treated more severely for missing time clock punches after making oral complaints about FLSA violations. He also says Saint-Gobain fired him two days after he asked about lawsuits relating to time clock punches, and moved the clocks the same day.

    The panel also upheld the district court’s ruling that Saint-Gobain had fair notice that Kasten was invoking protected FLSA rights before supervisors fired him.

    “Kasten engaged in protected activity for purposes of his retaliation claim,” Judge Flaum wrote. “We decline Saint-Gobain’s invitation to affirm summary judgment on these grounds.”


    Joe Forward is the legal writer for the State Bar of Wisconsin.