(CN) – The 7th Circuit declined to reconsider its earlier dismissal of a former factory worker’s claim that he was fired in retaliation for verbally complaining about the placement of the company’s time clocks.
Kevin Kasten received several disciplinary warnings based on “issues” he was having punching in and out at a Wisconsin plant owned by Saint-Gobain Performance Plastics Corp.
Kasten signed each warning, acknowledging that he read and understood it.
But he insisted that he had repeatedly complained to supervisors that the time clocks were in an area that prevented employees from getting paid for the time spent putting on and taking off their required protective gear.
Saint-Gobain disputed this claim.
After Kasten was fired in December 2006, he sued for retaliation under the Fair Labor Standards Act.
The district court dismissed the case on the grounds that because Kasten had not “filed any complaint,” as required by the Act, he had not engaged in any protected activity. Oral complaints fell outside the reach of the law, the panel concluded.
A three-judge panel of the Chicago-based appeals court affirmed in a June opinion.
Kasten asked the full court to reconsider its panel decision, but a majority of the judges turned it down.
Three judges, however, said they thought the case was worth a second look.
“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 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,” Judges Rovner wrote.
Judges Wood and Williams joined in dissent.