Petition for Writ of Certiorari — Pirant v. United States Postal Service (No. 08-1100)

Sure a US

W O081100MAR3 2009

No. ~*

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

ANTOINETTE PIRANT,

Petitioner,

UINITED STATES POSTAL SERVICE.

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

C. STEVEN TOMASHEFSKY WILLIAM M. HOHENGARTEN

STEIN, RAY & HARRIS LLP Counsel of Record

222 WEST ADAMS STREET JENNER & BLOCK LLP

SUITE 1800 1099 New York Ave. NW

CHICAGO, ILLINOIS 60606 Washington, D.C. 20001

‘Telephone (312) 516-2087 Telephone (202) 639-6048

MERIC A. SACKS

KDWARD P. MCKENNA

JENNER & BLOCK LLP

330 NORTH WABASH AVE.

CHICAGO, ILLINOIS 60611

Telephe ne (312) 222-935

Attornevs for Antoinette FPirant

i

QUESTIONS PRESENTED

i Whether the Seventh Circuit erred in

holding, contrary to the Third and Ninth Circuits

and the interpretation of the Secretary of Labor

presented to the court below, that to meet the 1,250-

hours worked threshold for entitlement to benefits

under the Family and Medical Leave Aci, the time

an employee spends donning and doffing required

work gear may only be counted if the gear is unique

or burdensome to wear.

2. Solely for purposes of determining

whether an employee has accumulated enough hours

to meet the FMLA eligibility threshold, where an

employee alieges she had been wrongfully suspended

by her supervisor, can the suspension’s time period

be counted if the wrongfulness is established in the

employee’s lawsuit alleging an FMLA violation, or

can it be counted only if the employee first prevails

in a union grievance proceeding seeking back pay for

the wrongful suspension? Here, the Seventh Circuit

held that the period of a wrongful suspension can be

counted, but only if the employee first prevailed in a

union grievance proceeding seeking back pay.

1]

TABLE OF CONTENTS

QUESTIONS PRESENTED

INDEX TO PETITIONER’S APPENDIX

TABLE OF AUTHORITIES

OPINIONS BELOW

PARTIES TO THE PROCEEDING...

STATEMENT OF JURISDICTION

SLATEMENT OF THE CASE)......<:csssssesssvsssesseneeenene

REASONS FOR GRANTING THE WRIT

This Court Should Resolve the

Spht among the Circuits and

Clarify for the Department of

Labor whether Consideration of

the Degree of Effort Involved in

Donning and Doffing Protective

Gear is Improper for Computing

Hours Worked

he Decision below Widens a

Circuit Split on the Standard for

Counting Donning and Doffing

rime under the FLMA

The Decision below Conflicts with

the Department of Labor’s

[nterpretation of the Statute

1]

11]

c. The Conflict in Authority Was

Not Eliminated by the Court of

Appeals’ Cosmetic Changes to Its

Opinion in Response to the

Government’s Rehearing

Nc oss duc ov nndosnesvieseccs 19

[T. This Court Should Resolve the

Question whether Hours during

which an Employee Is Wrongfully

Suspended Can Be Counted

toward FMLA Eligibility without

the Need for a Prior Gnevancs

Proceeding Rare ik

CONCLUSION .... . 26

B.

LV

INDEX TO PETITIONER’S APPENDIX

Pirant v. U.S. Postal Service

(7th Cir. Sept. 4, 2008)

(opinion as revised and reported)...............

Pirant v. U.S. Postal Service

(U.S. Dist., Northern Dist., Eastern Div..,

tO Tage Bae | SARE Re Pra A Keone Pp Net BEOY

Prrant v. U.S. Postal Service

Defendant-Appellee’s Petition for Panel

ee ERE PURIST HS Se AOE TERE: Stee

Pirant v. U.S. Postal Service

Brief of the Secretary of Labor as Amicus

,o08

Curiae in Support of Defendant-Appellee’s

Petition For Panel Rehearing ....................

Pirant v. U.S. Postal Service

(7th Cir. Dee. 3, 2007)

Order modifying panel opinion issued on

Sept. 4, 2008 and otherwise denying

PPO CRE UOE HO Fe ce cvescrhcccacsscacennvecsvaessus

Pirant v. U.S. Postal Service

(7th Cir. Sept. 4, 2008)

{

(excerpt of original opinion)

Statutory Provisions Involved.

.56a

ova

...64a

TABLE OF AUTHORITIES

CASES Page(s)

Alvarez v. IBP. Inc.,

339 F.3d 894 (9th Cir. 2003).............. 8-9, 13-14,18, 20

Armour & Co. v. Wantock,

323 U.S. 126 (1944) ................- eee eT

Barrentine v. Arkansas-Best Freight Sys., Inc.,

450 U.S. 728 (1981) 24

Collins v. Lohdel/

188 F.3d 1124 (9th Cir. 2006) 20

Garcia v. Tyson Foods, [nc

474 F. Supp. 2d 1240 (D. Kan. 2007) 19

Gorman v. Consolidated Edison Corp

188 FF 3d 586 (2d Cir. 2007) 6-7, 16

i @, L2U

[BP. Inc. v. Alvarez

546 U.S. 21 (2005) 6-9, 12-14

Nance v. Goodyear Tire & KRubber ¢

527 F.3d 5 49 (6th Cir. VOOR 9

Reich v. LBP. In

38 F.3d 1123 (10th Cir. 1994) y- 1 19

Steiner v. Mitchell,

350 U.S. 247 (1956)

29 U.S.¢

29 U.

9 U

29 U

rg |

MS,

LS)

AT?

Y

STATUTES

a 0 es |

794(a)Q1)

2OLI2ZCADOD.

26]

1(20(@)

261 74a)(2)

12-13, 18

1

OPINIONS BELOW

The opinion of the court of appeals is reported

at 542 F.3d 202 and reproduced in the Appendix to

the Petition (“Pet. App.”) at la-14a. The relevant

portion of the earlier version of the court of appeals

decision before revision is excerpted at 59a-6la. The

opinion of the district court is unreported and

reproduced at Pet. App. 15a-34a.

PARTIES TO THE PROCEEDING

The Petitioner is Antoinette Pirant, the

plaintiff and plaintiff-appellant in the courts below.

The Respondent is the United States Postal Service

(“USPS”), the defendant and defendant-appellee in

the courts below.

STATEMENT OF JURISDICTION

The Seventh Circuit’s original opinion was

entered on September 4, 2008. The USPS filed a

timely petition for panel rehearing on November 3,

2008 The court denied that petition, but issued a

revised opinion, on December 3, 2008. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §

125401). The court of appeals had jurisdiction under

28 U.S.C. § 1291. The district court had jurisdiction

under 28 USC. § 1331: 29 U.S.C. § 794(a)(1):; 29

U.S.C. § 701 et seg.; 29 U.S.C. § 2617(a)(2); and 42

U.S.C. § 12117

STATUTORY PROVISIONS INVOLVED

The Family Medical Leave Act (“FMLA”), 29

9

U.S.C.A. § 2612 (a)(1), states in relevant part that

“an eligible employee shall be entitled to a total of 12

workweeks' of leave during any 12-month

period...because of a serious health condition that

makes the employee unable to perform the functions

of the [employee’s] position.” 29 U.S.C. § 2612(a)(1).

An “Eligible employee” is “an employee who

has been employed... for at least 12 months by the

employer” and who has “at least 1,250 hours of

service with such employer during the previous 12-

month period.” 29 U.S.C. § 2611(2)A). “For

purposes of determining whether an employee meets

the hours of service requirement specified in

subparagraph (A)(ii), the legal standards established

under section 207 of [the Fair Labor Standards Act]

shall apply.” Jd. at 2611(C)

The Portal-to-Portal Act, which applies to the

Fair Labor Standards Act (“FLSA”), states in

relevant part that “activities not compensable are

..activities which are preliminary to or postliminary

to said principal activity or activities, which occur

either prior to the time on any particular workday at

which such employee commences, or subsequent

to the time on any particular workday at which he

ceases, such principal activity or activities.” 29

U.S.C.A. § 254

STATEMENT OF THE CASE

A. Factual Background

Petitione: Antoinette Pirant Was ¢ mploye ad by

the USPS as a mall handler. working the night shift

3

at the USPS’ Busse facility. She was terminated by

the USPS in January 2002. During her employment

with the USPS, Ms. Pirant suffered, and still suffers,

from degenerative osteoarthritis in her left knee.

The USPS was aware of her knee condition

Before clocking in for her shift, Ms. Pirant

typically spent three to five minutes in the locker

room changing into a required work shirt and

putting on a required apron, protective work gloves,

and protective shoes. Ms. Pirant would then take

one to two minutes to walk to the time clock from the

locker room and clock in for her shift. She would

perform the same tasks in reverse at the end of her

shift after clocking out. Thus, the time Ms. Pirant

spent each day from donning her gear before

punching in to doffing it after punching out ranged

from eight to fourteen minutes

In the months leading up to Ms. Pirant’s

termination, she mussed several days of work,

primarily due to her osteoarthritis. As a result, the

USPS required her to sign a “last chance agreement”

in which she acknowledged that she would be

terminated if she missed any more work days

On October 5, 2001, after a dispute on the

work floor, Ms. Pirant’s supervisor, Frank Peden,

ordered her to clock out and O home two hours

early. Ms. Pirant filed a grievance requesting back

pay and an apology A USPS dispute resolution

specialist investigated the matter. obtaining

statements from Mr. Peden and Ms. Pirant about the

incident On December ?1 ZOO. tne dispute

4

resolution specialist informed Ms. Pirant that she

had the right to pursue her grievance. ‘lhe dispute

resolution specialist testified that floor supervisors

often improperly ordered employees to go home

early. Moreover, Mr. Peden himself conceded that he

lacked the authority to order employees to clock out.!

Another supervisor at the Busse Facility

corroborated Mr. Peden’s statement that he did not

have the authority to suspend Ms. Pirant or order

her to clock out early

Ms. Pirant was terminated before she could

pursue that gnevance further On December 5,

2001, she called in shortly before her after-midnight

shift was to start, stating that she needed to see a

doctor about pain in her knee. She did not report for

her shift that night. At her supervisor's request, she

brought in documentation showing she had seen a

doctor and visited an emergency room, but despite

that, on January 11, 2002. the USPS terminated her

for the December 6 absence. Ms. Pirant then filed

and lost a union grievance asserting wrongful

B Proceedings Below

MI Pirant filed her pro se Amended

Complaint on February 10, 2004, asserting that her

termination had violated her right to leave under the

—

FMLA. The Amended Complaint asserted that Ms.

Pirant had worked 1,250 hours, and the USPS’

Answer admitted that allegation. (Pet. App. 3a,

19a.) More than a year later, however, the USPS

moved to change its admission to a denial, asserting

for the first time that Ms. Pirant had worked only

1,249.8 hours, thus leaving her 12 minutes short of

FMLA eligibility. (Ud at 19a.) The district court

permitted the USPS to amend its answer. (/d)

Then, in its reply bref in support of its summary

judgment motion, the USPS changed its position

again, asserting its records showed Ms. Pirant was

wy ¢

72 minutes short. (/d. at 25a.)

In granting summary judgment to the USPS,

the district court ignored the USPS’ prior admission

and its varying hours totals, holding that there was

no material fact issue as to whether Ms. Pirant had

met the 1250-hour threshold. (Ud. at 25a-28a.) In

addition to challenging the USPS’ inconsistent

accounting, Ms. Pirant raised two arguments that

the district court rejected Kirst, assuming the

clocked-in time was 72 minutes. short, the

accumulated sum of Ms. Pirant’s donning and doffing

time would have pushed the total well over 1,250

hours. Second, if the two hours during which Ms

Pirant was wrongly suspended were added, she also

would have crossed the 1,.250-hour threshold

On appeal, the Seventh Cuircuit affirmed

Holding that the time spent putting on and taking off

the protective gear should not be counted, the court

stated that “donning a minimal amount of nonunique

safety clothing, such as helmets, goggles, and steel

6

toed boots, is not compensable under the [Fair Labor

Standards Act]” (“FLSA”), 29 U.S.C. § 2611(2)(C),

which contains the standards for computing FMLA

hours. (Pet. App. 62a.) In support of that holding,

the court relied on Gorman v. Consolidated Edison

Corp., 488 F.3d 586, 593-94 (2d Cir. 2007), cert.

denied, 128 S. Ct. 2902 (2008), which held that even

where such safety year was required by the

employer, it was not “integral” to the job because it

was “non-unique” and “relatively effortless” to don

and doff. In a footnote, the Seventh Circuit also cited

this Court’s decision in JBP v. Alvarez, 546 U.S. 21,

40-41 (2005), stating that “post-donning and pre-

doffing waiting time” cannot be compensable under

the FLSA. (Pet. App. 6la n.2.)

Addressing the wrongful suspension issue, the

Seventh Circuit acknowledged that Acco v. Potter,

377 F.3d 599, 605 (6th Cir. 2004), held that, for

eligibility purposes under the FMLA, hours “the

employee likely would have worked but for her

wrongful termination” should be included. (Pet. App.

10a-1la.) In fFicco, the employee grieved her

termination and won reinstatement. 377 F.3d at

605. But the Sixth Circuit did not hold that

pursuing a grievance was a necessary precondition to

having the hours counted. That court only noted in

passing that “back-pay awards often include

payment for overtime work that an employee would

have performed but for her employer's violation of

employment laws.” /d. Consistent with that logic,

the Sixth Circuit held that an employee should get

FMLA credit for hours worked where the employer

wrongfully prevented the employee from working

{

/d. But here, the Seventh Circuit held that

nt could count the hours only if she had in

ecessfully pursued a grievance for back pay,

‘dera!l rights under the FMLA to a union wage

having no relation to the FMLA claim: “by

pursue a formal challenge to her

Pirant has accepted that she is not

1 1 ither compensation or FMLA credit for

two hours. (Pet. App. lla.)

\iter th urt of appeals issued its opinion,

iry of Labor apparently informed the

that . the Labor Department’s view, the

Circuit's Gorman decision wrongly “focused

itu f the work gear at issue — whether it

nique, and how extensive

at la [In addition, the Secretary

{ th the irt ippeal n eadl of

I in } i? I equestea tha

t ! 1/Val e deleted /

e disagreemen however, t

rte it d t rt iw on Vv

' 9 be ? ! ‘ f f

| if ‘ g>T

| re

{ r y

,

| t ‘ i

petition had sought, deleting the references to

Gorman and the footnote citing A/varez Becauss

Fed. R. App. P. 40 barred M Pirant from

sponding unless the court of appeals requested

ecause Fed. R. App. P. 40 embodies

1 presumption that the requested relief will not be

rranted without giving the opponent an pportunity

t respond Ms. Pirant was not afforded an

pportunity to explain why, when the proper test

was applied, the time she had spent puttu n and

taking off the required protective gear should be

ludes ie FMLA hour

‘ t t tat Gorn tl

ot eal lack u jueness and

XxtTens ere = i test tf if Na ‘xpress elected I

e Ninth Circuit in A/var IBP. In 39 F.3d

894 903 (9th Cir. 2! itfd, 546 U.S. 21 (2005) and

he Third Cir t De Asene lyson Foods, Ini

0 F.3d 361, 373 (3d ©1 Ae ert. denicd SS

(it. POOY (2008

REASONS FOR GRANTING THE WRIT

Ih Court I | { A ' ‘ " Helou

‘ ; re

First. tl Seventh Cuircuits decision. while

eelng with the Second Circuits decision in

Gorman and the Tenth Circuit’s decision in Merch 1

IBP Inc. 38 F.3d 1123 (Oth Cir 1994). directlh

ynflicts with the Ninth and Third Circuits In

Y

doffing time to be counted under the FLSA, “ease of

donning and ubiquity of use do not make the donning

of such equipment any less ‘integral and

indispensable” to the job. 339 F.3d at 903. In De

Asencio, the Third Circuit rejected a test that would

focus on “laborious degree cf exertion” in donning or

doffing the protective gear. 500 F.3d at 373.

This petition presents an excellent opportunity

to resolve the conflict between the circuits, which

bedevils employers and employees alike. The test

used by the Ninth and Third Circuits is more

consistent with this Court’s A/varez decision, which

reiterated that the definition of “work” should look

beyond the level of exertion and sugyested an

approach to preparatory time that focuses on

whether the employer requires the time be spent on

that activity. 546 U.S. at 40 n.8.

A bright-line test turning on whether the

employer requires that the gear be worn will avoid

complicated case-by-case adjudication of whether the

equipment is burdensome and whether it is

“integral” for some reason other than that the

employer sees fit to require its use. Indeed, it is

appropriate to presume that, if the employer requires

that the gear be worn, the gear is integral to the job.

The Seventh Circuit did not solve the conflict

by revising the opinion to delete its reference to

Gorman. The decision still conflicts with the Ninth

and Third Circuits because it relies on a finding that

the protective equipment is not “extensive and

unique,’ so the time spent donning and doffing that

LQ

sear cannot be counted toward the FMLA eligibility

threshold. (Pet. App. 13a.) Indeed, the decision still

cites a pre-A/varez ‘Tenth Circuit decision that

focuses on the degree uf physical or mental exertion

to determine whether preparatory activities are

compensable. GSee id. citing Reich, 38 F 3d. at 1126

n.1.)

Since the lower courts acces pte d that Ms.

Pirant was required to wear her protective gear, her

time should have been counted under the Third and

Ninth Circuits’ test (as well as the Secretary of

Labor’s reasoning). It is undisputed that Ms. Pirant

would be FMLA eligible with that time counted. The

proper resolution of this case is reversal to the lower

courts so that Ms. Pirant can proceed with her action

based on the USPS’ violation of her FMLA rights

Second, the opinion below creates = an

unwarranted new doctrine, hitching an employee's

entitlement to relleft under the FMLA to the

successful pursuit of a union grievance for back pay

unrelated to the FMLA claim. The FMLA eligibility

threshold is set by federal statute and imphes no

exhaustion requirement. The federal courts are fully

capable of determining whether an employee's hours

were improperly docked — especially where, as here,

the supervisor conceded he lacked authority to order

Ms. Pirant to clock out, and the only real dispute was

the conflicting testimony over whether’ the

supervisor had in fact ordered her to clock out. The

number of hours worked is a fact question to be

determined lhke any other by a judicial fact-finder if

contested. Though umion contracts may require a

1]

grievance procedure before an employee can be

awarded back pay, the USPS cited no contractual

provision requiring a grievance procedure merely to

establish FMLA eligibility. This Court should hold

that no such requirement exists.

if This Court Should Resolve the Split among

the Circuits and Clarify for the Department of

Labor whether Consideration of the Degree of

Effort Involved in Donning and Dofting

Protective Gear is Improper for Computing

Hours Worked

Review by this Court is warranted because thx

decision below deepens a clear-cut split of authority

hetween the Second, Seventh, and Tenth Circuits on

the one side and the Third and Ninth Circuits on the

other. In addition, the decision below conflicts with

the Secretary of Labor’s interpretation of the FLMA,

as set forth in Respondent's own petition for

rehearing to the Seventh Circuit disavowing the

rationale of the decision below as erroneous. And the

Seventh Circuit did not eliminate this conflict in

authority through the cosmetic changes it made in

its opinion in response to the USPS’s petition for

rehearing, which merely obscured the rationale for

the decision by deleting citation to the Second Circuit

and deleting a mistaken description of A/varez

without in any way altering the rule of decision that

conflicts with two other circuits.

>.

a. The Decision below Widens a Curcuit

Split on the Standard for Counting

Donning and Dotfing Time under the

FLMA

In JBP. Inc. v. Alvarez, 546 U.S. 21 (2005), this

Court left unanswered an important issue that has

divided the lower courts for several years: when

must time an employee spends donning and doffing

protective gear required by the employer be

compensable under the Fair Labor Standards Act

and countable the Family and Medical Leave Act’s

1,250-hour threshold for eligibility?

The FMLA, 29 U.S.C. § 2611(2)(A)(ii), sets a

threshold requirement for eligibility: an employee

must have worked for an employer at least 1,250

hours during the previous twelve months to be

eligible for FMLA benefits from that employer. The

FMLA itself contains no standards for computing the

hours needed to reach the 1,250 threshold. Rather,

it directs courts to apply standards and tests used

under the FLSA for what defines compensable

“work.” See 29 U.S. C. § 2611(2)C). That statute

itself is circumscribed by the Portal-to-Portal Act, 29

Sh. Oe F S 254, designed by Congress to exclude from

compensation several forms of preparatory activity

(like walking) that Congress considered outside the

work day. This Court’s opinion in Sterner v.

Mitchell, 350 U.S. 247, 254 (1956), clarified that the

Portal-to-Portal Act does not exclude all of these

preparatory activities. Employees must still be

compensated for activities that are “integral and

indispensable to the principal activity,” 1.e., part of

the employee's job. /d.

In Alvarez, this Court applied these statutes

and Steiner to address the FLSA claims of food-

processing employees who sought compensation for

time during which they donned and doffed their

“outer garments, hardhats, hairnets, earplugs,

gloves, sleeves aprons, leggings, and boots,” as well

as “chain link metal aprons, vests, plexiglass

armguards, and special gloves.” Alvarez, 546 U.S. at

30. The lower court in A/varez had held that the

donning and doffing time should be counted under

the FLSA if the gear was required by the employer,

without the need to consider whether the gear was

unique to the particular job or burdensome to put on

and take off. A/varez, 339 F. 3d at 903

On certiorari: to this Court, the petitioner did

not challenge that ruling but sought review only of

the lower court’s determination that time spent

walking to the production floor after the gear had

been donned, and to the changing room where the

gear was to be doffed, was also compensable.

Alvarez, 546 U.S. at 32. This Court held that,

because the donning and doffing were compensable

parts of the work day, time spent after donning and

before doffing was necessarily part of a “continuous

workday” and thus was also compensable Td. at 37

Alvarez therefore left open the question

whether the donning and doffing themselves were

compensable without a showing that the gear was

unique and burdensome to wear. This Court did,

however, offer suggestions for how that question

14

should be answered. First, the Court reiterated that

‘“exertion’ was not in fact necessary for an activity to

”

constitute ‘work’ under the FLSA.” 546 U.S. at 25.

Second, this Court explained that there can be no

difference between “integral and _ indispensable”

activities and “principal” activities: “any activity that

is ‘integral and indispensable’ to a ‘principal activity’

is itself a ‘principal activity’ under...the Portal-to-

Portal Act.” 546 U.S. at 37. Third, in the Court’s

discussion of waiting, an activity that by definition

requires no exertion, the Court stated that waiting

time could be compensable if the employer “required

its employees to arrive at a particular time in order

to begin waiting.” /d. at 40 n.8.

As noted above, the Ninth Circuit’s opinion in

Alvarez stressed the key role played by the

employer's requirements. In the portion of the

opinion not reviewed by this Court, the Ninth Circuit

explained that activities are “integral and

indispensable” to the principal activity if they are

required or “done for the benefit of [the employer],”

such as “activities [that] j;revent unnecessary

workplace injury and contamination.” A/varez, 339

F.3d at 903. Indeed, the Ninth Circuit held that the

requirements of the employer should be’ given

conclusive weight, while the time and effort should

be disregarded:

This “integral and indispensable” conclusion

extends to donning, doffing, and cleaning of

non-unique gear (e.y., hardhats) and unique

gear (e.g., Kevlar gloves) alike. Little time

may be required to don safety glasses and the

—'

pervasive in industrial work. But ease of

donning and ubiquity of use do not make th

donning of such equipment any less “integral

ind indispensable " as that term is defined in

Steiner. Safety goggles are, hke metal-mesh

leggings, required by IBP, and they are, hke

metal-mes| legging necessary to. the

performance of the principal work. Both ars

‘Integral and indispensable” under Steiner

exception to tn Portal-to-Portal Act’s bar t

compensation of preliminary or postiiminar.

WTIVITY

ld Thr tne question whether in iCcTLVIT\ l

itegral or indispensable innot hinge on the «ind ol!

rotective gear or the effort required to don or doff

the gear Rather, it lust tocu vhether the

ictivity was quired b red to the benefit of

Relying h both A/va yp1n101 the

Vhird Circuit adecist n LD isenci 900 td at

al emphasized the equired nature of the

preparato! ACTIVITY reyectl i test opasea n tne

itiuyré ind the burder i clatea With tne

rotective re A! There the plaintiffs Were poultry

yrker \fter a jury decided that the preliminary

ind postliminary activity they engaged in daily was

not “work inder the FLSA, plaintiffs appealed,

irnyvuiny t} it the ury nstructions had mprope rly

told the urv§ te consider whether the AcULVItLe

The Third Circuit rejected that instruction

noting that this Court held in Armour & Co. 14

Wantock, 323 U.S. 126 (1944) that exertion is not the

hallmark of work under the FLSA Instead, the

Third Circuit plac t d the proper rocus on whether the

ictivily was require d by the en ploy r for its ber ett

[Wle conclude that 1t was error for the jur

instruction to direct the jury to conside

whether the gear was cumbersome, heavy, or

required concentratior to don and doft This

language in effect mpermissibly rected the

jury to consider whether the poultry worker

had demonstrated some sufficiently laborious

degree of exertion, rather than some form of

activity controlled or required by the

employer and pursued for the benefit of the

employer Armour demonstrates that

exertion 1S not in fact. required for activity to

Alvarez decision precludes the consideration of

cumbersomeness or difficulty mm tne yuestion I

whether activities are ‘work.” /d. at 370-71

In sharp contrast to the Third and Ninth

Circuits, the court of appeals here did emphasize the

type of protective gear and the burden associated

with it use, entirely ignoring the USPS’

requirement that it be worn. In its original opinion,

the court of appeals relied on Gorman, 488 F.3d at

593-94, noting that, in Gorman, the Second Circuit

held that “the donning of a minimal amount of

onunilqti é ( if

ind steel-toed boots, is not compensable under the

FLSA.’ (Pet Ap] 62a.) The Seventh Circuit

1eC) yn conflicted with the better-reasoned decision

ts sister circuits Indeed, the original de I

Wa ff the mark that the winn ng party opjects

/ ) on below Conflict vith th

Departmen { Lal [nterpretatsh

he Statu

After initiall yr vee Di NV, n tl

Government repudiated the court -¢ appeal

isoning. The USPS, with am upport from the

a retal tf Labor took thi extraordinar' tey |

ash the burt to reneal re is¢ Olely to rreci

its rationale. As the Secretary's brief argued t} hi

irt should not have reled on Gorman becauss

that decision lid no ADPpPLy th correct criteria t

letermine whether clothes changing 1 mpensabl

ider the FLSA (Pet. App. 50a.)

In the Secretarys view, Gorman incorrectls

nature of the clothing worn

tnat cast which included helmet

roggles ind steel toed pDoots However a the

Supreme Court recently suggested tin A/varez}, th

factor 1s not dispositive in determining whethe

Plaintiff's donning and dotting lS compensable under

the FLSA (Jd. at 5la-d5Wa.) Indeed, as the

1, the Labor Department ha

Secret 17% brief note

issued at advisory memorandum tating that

whether clothing ts ‘unique or ‘nonunique’ is not

cd sposit ‘ i? le te ning whether moOnnwy iri

} «

i“

on the employer's premises is required by law, by

rules of the employer, or by the nature of the work

(Pet. App. 5la, citing 29 C.F.R. 790.8(c) n.65.)

The rule for which the Secretary argued is the

rrect rule that should be adopted by this Court

c. The Conflict in Authority Was Not

Eliminated by the Court of Appeals

Cosmetic Changes to Its Opinion in

Response CO the Governments

Rehearing Petition

In response to the USIS’ petition and the

Secretary's amicus bricf, the Seventh Circuit revised

the opinion to delete any reference to either A/varez

or Gorman. (Pet. App. 56a°58a.) On the donning

and doffing question, the Seventh Circuit still cite

Reich, a Tenth Circuit case pre-dating A/varez that

is at odds with the Supreme Court’s post-A/varez

definition of what constitutes compensable “work

The Court in Herch focused on the degree of phy sical

or mental exertion, and as with Gorman, courts have

been prompted to consider whether it is viable

precedent in a post-A/varez world. 38 F. 3d. at 1125-

26. See, for e.g., Garcia v. Tyson koods, Inc., 474 ¥

Supp. 2d 1240, 1246 (D. Kan. 2007) (stating that “if

given the opportunity to revisit the issues in AercA,

[the Tenth Circuit] would approach its analysis of

the pertinent issues differently in light of A/varez.”)

The Seventh Circuit's revised decision, like the

decisions in Gorman and Aeich, is still based on

whether the gear is “unique and extensive” or in

other words, the And of protective gear and effort

20

involved in wearing it, not on whether the employer

required the gear to be worn.

In the amicus brief in support of the petition

for rehearing, the Secretary suggested that the

district court could have been affirmed if the Seventh

Circuit did not concentrate on the degree of exertion

but instead on whether the protective gear was

required. But the Secretary's argument was based

on a misapprehension of the record, in the argument

that Ms. Pirant did not show she was required to

wear her protective clothing.

The Seventh Circuit, like the district court

before it, unequivocally held that Ms. Pirant alleged

she was required to wear the protective gear. The

district court had found that, applying the facts in

the light most favorable to the nonmovant for

purposes of summary judgment, “Pirant was

required to use ordinary gloves and an apron.” (Pet.

App. 3la.) The Seventh Circuit found, in its final

version of its opinion, that Ms. Pirant was “required”

to wear a “a uniform, shirt, gloves, and work shoes.”

(/d. at 13a.)

Thus, both courts did hold that Ms. Pirant was

required to wear at least some items, and like in

Alvarez and De Asencio, the gear was part of

“preventling] unnecessary workplace injury” for the

employer's benefit. A/varez, 339 F.3d 903; De

Asencio, 500 F.3d at 372-73. Under the Secretary's

own reasoning, there was no basis for the Seventh

Circuit to conclude that time spent in putting the

gear on and taking it off did not qualify as “integral

21

and indispensable” to the principal activity. It is not

necessary to make an independent iudgment as to

whether the items were required by the nature of the

work. Rather, it is enough, as the Secretary urged,

that wearing the items was required by her

employer, demonstrating the employer's belief that

the items were necessary. There is no reason why

the courts should second-guess the employer’s own

judgment.

In any event, the court of appeals did not give

Ms. Pirant an opportunity to correct the Secretary’s

misstatement of the record. Instead, the court of

appeals formally denied the petition for rehearing

but amended the decision without comment or

explanation. (Pet. App. 56a-58a.) The court simply

deleted its citations to A/varez and Gorman without

changing any of the opinion’s reasoning. The revised

opinion now stands as the reported decision of the

Seventh Circuit and contains the same incorrect

analysis that the Secretary of Labor identified.?

3 The Seventh Circuit’s opinion also could not have been saved

by the notion that the eight to fourteen daily minutes Ms.

Pirant spent donning and doffing her gear and walking to the

time clock was de minimis. Tellingly, the Secretary of Labor

did not even make this de minimis argument in her amicus

brief in support of the petition for rehearing. (Pet. App. 49a-

50a.) Adding Ms. Pirant’s preparatory time would have made

her FMLA eligible in mere days. Given that both lower courts

rejected the idea that there could be a de minimis exception to

the i,250 hours requirement that would have excused Ms.

Pirant’s minuscule shortfall on the clock (Pet. App. 8a-9a, 31a-

32a), it would be perverse to ignore her daily donning and

doffing time on the ground that it was de minimis.

22

This Court should grant certiorari to resolve

the circuit split and clarify that time spent donning

and doffing protective gear is compensable under the

FLSA, and includable under the FMLA’s eligibility

threshold, if wearing the gear is a requirement of the

job.

IT. This Court Should fesolve the Question

whether Hours during which an Employee Is

Wrongfully Suspended Can Be Counted

toward FMLA Eligibility without the Need for

a Prior Grievance Proceeding.

If the time Ms. Pirant spent donning and

doffing her protective gear is counted, she would

indisputably have exceeded the 1,250-hour eligibility

threshold, and there would be no need to reach this

second issue. If not, then her two-hour wrongful

suspension, if counted, would put her over the top.

As a preliminary matter, the court of appeals

agreed with the Sixth Circuit’s decision in Acco, 377

F.3d at 604-05, holding that hours during which an

employee was wrongfully suspended can be counted

toward the FMLA eligibility threshold. (Pet. App.

10a-1la.)

Naturally, the USPS did not concede that Ms.

Pirant’s suspension was wrongful. But the question

whether the suspension was wrongful could and

should have been determined by the district court,

based on the evidence, including her supervisor’s

own testimony that he lacked authority to suspend

her. Instead, the court of appeals held that Ms.

23

Pirant was required to use union= grievance

procedures to make a “formal challenge to her

suspension” to prove that she was unlawfully

suspended. (/d. at lla.) Because (in light of her

termination) Ms. Pirant did not _ successfully

complete the grievance proceeding she _ initiated

about the suspension, and so was not awarded back

pay, the court of appeals held it was not open to her

to prove that she was unlawfully suspended.

The Seventh Circuit’s grievance requirement

was its own creation, with no support in prior case

law. To be sure, in Aicco, the employee had in fact

pursued a grievance proceeding. But Aicco nowhere

held that a grievance proceeding was required.

Indeed, in a subsequent decision, Nance v. Goodyear

Tire & Rubber Co., 52'7 ¥.3d 539, 557 (6th Cir. 2008),

the Sixth Circuit described the rule simply as giving

credit for “hours that the employee wanted to work

but was unlawfully prevented by the employer from”

doing so. The court made no mention that obtaining

an arbitral back pay award was a_ necessary

precondition to counting the hours for FMLA

purposes.

In this case, the court of appeals elevated the

mere fact that an arbitration proceeding had

occurred in Aicco to decisive significance in

determining whether an employee should be credited

for FMLA time. That approach is unwarranted. A

contractually established grievance proceeding is —

in some cases — required as a_ condition of

employment to receive contractually established pay.

But the FMLA established a_ federal right

24

independent of contract, and nothing in the statute

indicates that Congress intended employers to limit

FMLA rights by establishing contractual hoops

through which an employee must jump.

Put another way, the union contract may

require arbitration to determine an award of back

pay, but it cannot require arbitration as a

precondition to obtaining FMLA relief — nor is there

anything in the record suggesting the union contract

here even attempted to do so. As this Court held,

union arbitrations are appropriate for adjudicating

rights arising from a __ collective-bargaining

agreement, but not rights created by federal statute:

Not all disputes between an employee

and his employer are suited for binding

resolution in accordance with the

procedures established by collective

bargaining. While courts should defer to

an arbitral decision where the

employee’s claim is based on rights

arising out of the collective-bargaining

agreement, different considerations

apply where the employee’s claim is

based on rights arising out of a statute

designed to provide minimum

substantive guarantees to individual

workers.

Barrentine v. Arkansas-Best Freight Sys., Inc., 450

U.S. 728, 736-37 (1981). Application of this rule for

the FLSA has led the Ninth Circuit to conclude that,

although exhaustion requirements may be imposed

25

for contractual rights, “if the claim arises from

statutory rights, the plaintiff is not required to

exhaust agreement remedies,” as the FLSA makes

“guarantees to individual workers that may not be

waived by collective bargaining.” Collins v. Lobdell,

188 F.3d 1124, 1127 (9th Cir. 2006) (nternal

citations and quotes omitted).

In this proceeding, Ms. Pirant was not

seeking back pay for the two hours during which she

alleges she was wrongfully suspended, so it is not

even a matter of an overlap or tension between the

contract-based and statute-based rights. Ms. Pirant

only sought a ruling that the two hours should have

been included in the amount needed to reach the

1,250 hour threshold for FMLA relief. By requiring

that she pursue an unconnected back-pay grievance

to prove she was cligible under the FMLA, the court

of appeals imposed an improper and arbitrary

contract-based precondition on Ms. _ Pirant’s

eligibility for relief created by a federal statute.

The arbitrariness of the court of appeal’s

ruling here is evident because, had Ms. Pirant been

employed in a non-union shop, there would have

been no opportunity for a grievance proceeding, and

the issue of her wrongful suspension would

necessarily have been determined by the district

court. The FMLA directs courts to use standards

developed under § 207 of the FLSA to determine the

number of hours worked, 29 U.S.C. § 2611(2)(C), it

does not direct the courts to defer to union grievance

proceedings.

26

Even without any formal grievance

proceeding, the district court or a jury could have

determined whether the two-hour suspension was

wrongful and the hours should be counted based on

the evidence, along with trial testimony from the

relevant witnesses. It must be emphasized, however,

that the question here is one of law, not of fact. The

Seventh Circuit did not review the evidence of

wrongful termination and conclude it came up

wanting. Rather, it applied the wrong rule of law by

requiring that Ms. Pirant “prove” the wrongful

termination through a prior grievance proceeding.

This Court should grant certiorari to establish the

correct rule: the FMLA does not require that

disputes over the number of hours worked be

determined in employer-mandated grievance

proceedings.

CONCLUSION

The petition for a writ of certiorari should be

granted to resolve important questions under the

Family and Medical Leave Act.

Dated: March 3, 2009

C. STEVEN TOMASHEFSKY

STEIN, RAY & HARRIS LLP

222 WEST ADAMS STREET

SUITE 1800

CHICAGO, ILLINOIS 60606

‘Telephone (312) 516-2087

~]

Respectfully Submitted,

WILLIAM M. HOHENGARTEN

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave. NW

Washington, D.C. 20001

Telephone (202) 639-6048

ERIC A. SACKS

EDWARD P. MCKENNA

JENNER & BLOCK LLP

330 NORTH WABASH AVE.

CHICAGO, ILLINOIS 60611

Telephone (312) 222-9350

APPENDIX

la

Appendix A

United States Court of Appeals,

Seventh Circuit.

Antoinette PIRANT.

Plaintiff-Appellant,

Vv.

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

No. 07-1005

Argued October 23, 2007.

Decided September 4, 2008.

As Modified on Denial of Rehearing Dec. 3, 2008

Background: Former employee sued Postal Service

under Family and Medical Leave Act (FMLA). The

United States District Court for the Northern

District of Illinois, Joan Humphrey Lefkow, J.,

entered summary judgment for Postal Service.

Employee appealed.

Holdings: The Court of Appeals, Sykes, Circuit

Judge, held that:

(1) Postal Service’s inconsistent positions as to

whether employee met 1,250-hour requirement for

FMLA cligibility did not create fact issue;

(2) employee could not count two hours during

which she was suspended toward minimum for

FMLA eligibility: and

2a

(3) employee could not count time she spent each

workday putting on and removing gloves, shoes, and

work shirt toward minimum for FMLA eligibility.

Affirmed.

*203 C. Steven Tomashefsky, Edward P. McKenna

(argued), Jenner & Block, Chicago, IL, for Plaintiff-

Appellant.

Ernest Y. Ling (argued), Office of the United States

Attorney, Chicago, IL, for Defendant-Appellee.

Before BAUER, CUDAHY, and SYKES, Circuit

Judges.

SYKES, Circuit Judge.

Antoinette Pirant sucd her former employcr, the

United States Postal Service, for an alleged violation

of the Family Medical Leave Act, 29 U.S.C. §§ 2601-

2654 ("FMLA"), but her suit failed on the threshold

question of her eligibility for FMLA leave. She

appeals, contending there were triable issues of fact

regarding her FMLA eligibility-specifically, a factual

dispute over whether she had worked *204 the

statutorily required 1,250 hours during the 12-month

period preceding the date of her unscheduled absence

from work. See 29 U.S.C. § 261 1(2)(A). The district

court granted summary judgment for the Postal

Service based on Pirant's uncontested payroll

records, which showed that she worked 1,248.8 hours

during the 12-month period preceding the date of her

absence-1.2 hours shy of the minimum required by

the MLA.

3a

Pirant asks us to reverse on a number of grounds.

First, she claims that the Postal Service's

inconsistent litigation positions regarding her FMLA

eligibility entitle her to a trial. She also argues she

should receive credit for two hours she lost due to a

claimed wrongful suspension. Finally, she contends

that the time she spent putting on and removing her

gloves, uniform shirt, and work shoes should be

counted toward her total hours of service.

We affirm. It is true that the Postal Service initially

conceded Pirant's FMLA eligibility in its original

answer. But it later obtained leave to file an

amended answer denying eligibility and_ then

submitted Pirant's payroll records on summary

judgment documenting that her hours of service fell

just short of the statutory requirement. This change

in the Postal Service's pleading, permitted by the

district court in its discretion, is not evidence of a

material factual dispute about Pirant's FMLA

eligibility; the work hours reflected in Pirant's

payroll records were in fact uncontradicted. As to the

alleged wrongful two-hour suspension, Pirant did not

timely pursue her right to challenge the suspension

and have the lost hours restored, so she is not

entitled to count these hours for FMLA purposes.

Finally, the time Pirant spent donning and doffing

her work gloves, uniform shirt, and shoes was

“preliminary” and “postliminary" to her principal

work activity under the Portal-to-Portal Act, 29

U.S.C. § 254, and therefore is noncompensable under

the Fair Labor Standards Act, 29 U.S.C. § 254(a)(2),

and is excluded from her FMLA hourly total.

BACKGROUND

Pirant had a tumultuous employment history

with the Postal Service. Hired in 1993 as a mail

handler, she was terminated at least four times, once

each in 1994, 1995, 1999, and in 2000, and also

received multiday suspensions in 1997 and 2000, all

for failure to maintain a regular attendance record.

Each time she was terminated, however, Pirant

convinced her superiors to reduce the termination to

a suspension.

In March 2001 £Pirant again = avoided

termination by acceding to a written “last chance”

apreement. The agreement provided as follows: “It

is agreed by all parties to this agreement that any

violation of the terms or conditions of this agreement

will result in the re-issuance of a Removal. It is

further understood that this settlement agreement

constitutes an absolute last chance to remedy any

conduct and attendance problems.”

On August 14, 2001, and September 25, 2001,

Pirant was again absent without excuse. On

September 28 she received a 30-day notice of

termination, but on October 26 convinced one of her

supervisors to hold it in abeyance until December 10.

This was merely a delay of the termination, however,

not a rescission of it; the additional grace period did

not entitle Pirant to reinstatement, even if she

maintained a_ perfect attendance record in the

interim.

5a

In the meantime, on October 5, 2001, Pirant’s

supervisor ordered her to clock out two hours early,

claiming that she was being insubordinate and not

doing her *205 work.! Pirant clocked out and went

home two hours early, but complained to Darrow

Andrews, a Postal Service Dispute Resolution

Specialist. Andrews investigated the incident,

interviewing both Pirant and her supervisor.

At 10 p.m. on December 5, 2001, Pirant called

the Postal Service and left a message with another

employee that she could not make it to her next shift.

She did not report to work on December 6. On

December 7 she returned to work and told her

supervisor that she had not been feeling well. The

record contains reports reflecting that on December

10, 2001, Pirant visited the emergency room at

Provident Hospital of Cook County and was

examined for carpal tunnel syndrorne and arthritis

in the knee. The discharge notes reflect that she was

directed not to work from December 10 to December

17, 2001. These reports are stamped “received” on

December 14, 2001-presumably by the _ Postal

Service. On December 21, 2001, Andrews informed

Pirant of her right to file a formal grievance for

restoration of back pay if she still thought she had

been wrongfully ordered to clock out two hours early

on October 5. She had 15 days to do so, but did not

meet this deadline.

' The supervisor denied that he ordered Pirant to clock out,

suggesting that she just left early. On summary judgment,

however, we accept Pirant’s version of the facts.

6a

On January 4, 2002, the Postal Service fired

Pirant for violating her March 2001 last-chance

agreement. On January 8 Pirant submitted a note

from a doctor indicating that she had been absent on

December 5 (not December 6), 2001, because of her

arthritic knee. In addition, she submitted an

absentee form filled out by the employee who had

answered her absentee phone call on December 5.

The original form had no indication of the reason for

Pirant’s absence, but Pirant had written in the

explanation “arthritis in knee.” On January 23

Pirant filed a formal complaint and request for back

pay regarding the October 5 clock-out incident; this

was more than a month after Andrews told her she

could do so and well beyond the 15-day time limit for

filing such a request. On April 8 Andrews submitted

a report finding that Pirant’s request for a formal

inquiry into the October 5 incident was too late.

Pirant did not pursue an internal appeal or any

further challenge to the two-hour suspension, but

she did file a formal grievance over her termination.

On May 6, 2002, an arbitrator held that the Postal

Service had good cause to fire her.

Pirant then took the dispute to federal court.

She filed a complaint alleging that the Postal Service

violated the FMLA by terminating her for missing

work on December 6, 2001, due to her arthritic knee.

In its first answer, the Postal Service admitted that

Pirant had worked the required 1,250 hours in the

12 months preceding her unscheduled absence in

order to qualify for FMLA coverage. Later, however,

the district court granted the Postal Service’s motion

for leave to file an amended answer denying that

7a

allegation.

‘The Postal Service then moved for summary

judgment asserting (among other arguments) that

Pirant had not worked the required 1,250 hours in

the 12 months prior to her unscheduled absence and

was therefore ineligible for FMLA leave. The Postal

Service submitted Pirant’s biweekly payroll records

reflecting her work-hour totals for that 12-month

period. The payroll records listed “Paid Hrs” and

“TACS Hrs”-the latter is an acronym for the Postal

Service’s time-clock system. For the 12 months

preceding December 6, 2001, Pirant’s payroll records

credited her with 1,248.8 Paid Hrs and 1,249.8 TACS

*206 Hrs. Both measures fell just short of the 1,250

hours required for FMLA eligibilty.

The district court entered summary judgment

for the Postal Service, holding that the undisputed

payroll records established that Pirant had not

worked the required 1,250 hours in the 12 months

preceding her unscheduled absence. The court

rejected Pirant’s argument that the conflict between

the Postal Service’s first and amended answers-the

first admitting her FMLA eligibility and the second

denying it-entitled her to a trial. The court also held

that the slight difference between Paid Hrs and

TACS Hrs on Pirant’s payroll records did not

demonstrate a material factual dispute requiring a

trial. On this point the court noted that TACS Hrs

represented the hours clocked on the Postal Service’s

time-clock system, which were later converted into

Paid Hrs according to regular and overtime pay

categories. Either way, Pirant had not come forward

sa

with any evidence to contradict the accuracy of her

payroll records, which established her ineligibility

for FMLA leave. Pirant also argued that the two

hours she lost due to the October 5, 2001 suspension

ought to be counted because her supervisor wrongly

ordered her to “clock out,” but the court viewed this

as nothing more than a subjective belief on Pirant’s

part, not enough to create a material issue for trial.

The court also held that the time Pirant spent

putting on her gloves, uniform shirt, and shoes was

not compensable under the Fair Labor Standards Act

and therefore was excluded from the calculation of

her hours of service under the FMLA. Finally, the

court rejected Pirant’s argument that her failure to

satisfy the 1,250-hour requirement should be

excused as de minimis.

Il.

ANALYSIS

[1] We review a grant of summary judgment

de novo, construing the facts and all reasonable

inferences in favor of the nonmoving party. Vutman

v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048

(7th Cir.2000); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986). On appeal Pirant renews the arguments

she made in the district court, with the exception of

her contention that a de minimis shortfall in work

hours may be disregarded for purposes of FMLA

eligibility. She was right to drop this last argument.

The FMLA guarantees eligible employees 12 weeks

of leave for the birth or adoption of a child; to care for

9a

a child, spouse, or parent with a serious health

condition; or “because of a serious health condition

that makes the employee unable to perform the

functions of the [employee’s] position.” 29 U.S.C.

§ 2612(a)(1). “Eligible employee” is defined in the

statute as “an employee who has been employed ...

for at least 12 months by the employer” and who-has

“at least 1,250 hours of service with such employer

during the previous 12-month period.” 29 U.S.C.

§ 2611(2)(A). We have previously held that “[t]he

statutory text is perfectly clear and covers the issue

[of leave eligibility]. The right of family leave is

conferred only on employees who have worked at

least 1,250 hours in the previous 12 months.”

Dormeyer v. Comerica Bank-/llinois, 223 F.3d 579,

582 (7th Cir.2000) (emphasis added). We proceed

then to Pirant’s remaining arguments.

*207 A. The FMLA’s 1,250-hour Requirement

[2113] Pirant maintains that the Postal

Service’s initial admission of her FMLA eligibility,

and the removal and replacement of that admission

with a denial in the amended answer, is enough to

establish a material factual dispute entitling her toa

trial. Not so. An amended pleading supersedes the

original, 188 LLC v. Trinity Indus., Inc., 300 F.3d

730, 736 (7th Cir.2002), and an_ inconsistency

between the initial and amended pleading does not

preclude summary judgment. That an amended

pleading differs from the original is hardly

surprising; that difference alone does not necessitate

a trial.

10a

Here, the Postal Service submitted Pirant’s

payroll records as objective evidence of Pirant’s hours

of service, and Pirant presented no evidence to refute

the accuracy of her records. As the district court

noted, the question of Pirant’s eligibility under the

FMLA does not turn on any issues of credibility or

evidence-weighing; it is established (or not) by the

total hours of work reflected in her payroll records.

On that point Pirant argues that the

difference between the Paid Hrs and the TACS Hrs

in her payroll records raises a triable factual dispute.

Again, as the district court explained, TACS Hrs

corresponded to the hours clocked on the Postal

Service’s time-clock system, while Paid Hrs

reconciled those hours pursuant to “regular” and

“overtime” categories of pay. By either measure,

however, Pirant falls short-by an admittedly tiny .2

hours if the TACS Hrs total is used and an only

slightly larger 1.2 hours if the Paid Hrs total is used.

The discrepancy between these two hourly measures

in the Postal Service’s payroll records does not

entitle Pirant to a trial. The district court properly

concluded that the undisputed evidence of Pirant’s

hours of service for purposes of the FMLA fell just

short of establishing the 1,250 threshold required by

the statute.

B. The Alleged Wrongful Two-Hour Suspension

[4] Pirant also argues that she should be

credited for the two hours she alleges she missed

when her supervisor improperly ordered her to clock

out early. Citing the Sixth Circuit’s decision in Acco

lla

v. Potter, 377 F.3d 599 (6th Cir.2004), Pirant argues

that hours not worked because of a_ wrongful

suspension or discharge count as hours of service for

FMLA purposes. Acco does not help her here. That

case involved a Postal Service employee who was

terminated, then grieved the termination and won

reinstatement and a make-whole order from an

arbitrator. The employee later sought FMLA leave.

The Sixth Circuit held that the hours-of-service

calculation for purposes of determining’ the

employee’s FMLA eligibility should include the

“hours the employee lhkely would have worked but

for her unlawful termination.” Jd. at 605.

Here, Pirant was advised of her right to file a

formal grievance and request for back pay after the

October 5, 2001 clock-out incident. She did not do so-

not, at least, until after she was terminated anJ long

after the 15-day regulatory filing period had expired.

Nor did she pursue any challenge to the dismissal of

her belated grievance as untimely. As the district

court noted, Pirant is left with only = an

unsubstantiated subjective belief that her two-hour

suspension was wrongful. That is not enough to

create a genuine factual dispute for trial. By failing

to pursue a *208 formal challenge to her suspension,

Pirant has accepted that she is not entitled to either

compensation or FMLA credit for the lost two hours.

OF Donning and Doffing of Gloves and Uniform

[5] Finally, Pirant claims she is entitled to

credit for the three to five minutes she spent each

workday putting on and removing her gloves, shoes,

12a

and work shirt. The FMLA provides that the

determination of whether the _ hours-of-service

requirement for leave eligibility has been met is

governed by the legal standards of the Fair Labor

Standards Act (“FLSA”). 29 U.S.C. § 2611(2)(C)

(cross-referencing 29 U.S.C. § 207).

In Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), the

Supreme Court held that the time employees syent

donning aprons and overalls was compensable under

the FLSA. But Congress responded with the Portal-

to-Portal Act, 29 U.S.C. 29 § 254, which amended the

FLSA to exclude from compensation “activities which

are preliminary to or postliminary to [the] principal

activity [the employee is employed to perform] ...

which occur either prior to the time on any particular

workday at which such employee commences, or

subsequent to the time on any particular workday at

which he ceases, such principal activity or activities.”

29 U.S.C. § 254(a)(2).

In a subsequent case interpreting the

amended statute, the Supreme Court held that

activities such as washing up or changing clothes

would be compensable only “if those activities are an

integral and indispensable part of the principal

activities for which covered workmen are employed

and are not specifically excluded” by the Portal-to-

Portal Act. Steiner v. Mitchell, 350 U.S. 247, 256, 76

S.Ct. 330, 100 L.Ed. 267 (1956). The Court held in

Sterner that a battery manufacturer must

compensate its employees for the 30 minutes they

spent putting on unique protective clothing and

13a

bathing at the factory because those activities were

indispensable to the health and safety of the

employees. Jd. The Court noted, however, that

“changing clothes and showering under normal

conditions” generally would not be compensable. /d.

at 332; see also 29 C.F.R. § 790.7(g) (“lolther types of

activities which ... would be considered ‘preliminary’

or ‘postliminary’ activities, include ... changing

clothes, washing up or showering”); Rerch v. IBP

Inc., 38 F.3d 1123, 1126 n.1 (10th Cir.1994)

(requiring employees to put on _ safety glasses,

earplugs, and a hard hat “is no different from having

a baseball player show up in_ uniform, a

businessperson with a suit and tie, or a judge with a

robe”); Anderson v. Pilgrim’s Pride Corp., 147

F.Supp.2d 556 (E.D.Tex.2001) (donning of aprons,

smocks, gloves, boots, hairnet, and earplugs not

compensable).

Here, Pirant was not required to wear

extensive and unique protective equipment, but

rather only a uniform shirt, gloves, and work shoes.

The donning and doffing of this type of work clothing

is not “integral and indispensable” to an employee’s

principal activities and therefore is not compensable

under the FLSA. It is, instead,*209 akin to the

showering and changing clothes “under normal

conditions” that the Supreme Court said in Steiner is

ordinarily excluded by the Portal-to-Portal Act as

merely preliminary and _ opostliminary activity.

Accordingly, the district court properly concluded

that Pirant is not entitled to include this time in her

hours-of-service total for purposes of the FMLA.

lida

Appendix B

United States District Court,

Northern District of [hlinois

Eastern Division

Antoinette PIRANT. Plaintiff

Vv.

UNITED STATES POSTAL SERVICE, Defendant.

No. 03 C 9383

December 7, 2006.

Clark Steven Tomashefsky, Courtney M. Beemer,

Edward Paul McKenna, Jenner & Block LLP,

Chicago, IL, for Plaintiff.

Ernest Yi Ling, United States Attorney’s Office,

Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

LEFKOW, J.

*1 Plaintiff, Antoinette Pirant (“Pirant”), filed

an amended complaint against defendant, the United

States Postal Service (“USPS”), alleging that she was

terminated in violation of the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seg, for

missing work due to a chronic medical condition that

is covered by the FMLA. The court’s jurisdiction is

invoked under that statute. Presently before the

court is the USPS’s motion for summary judgment.

For the reasons stated below, the USPS’s inotion is

16a

granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a

trial where there is no genuine issue as to any

material fact and the moving party is entitled to

judgment as a matter of law. FedR.Civ.P. 56(c). To

determine whether any genuine fact exists, the court

must pierce the pleadings and assess the proof as

presented in depositions, answers to interrogatories,

admissions, and affidavits that are part of the record.

Fed R. Civ. P. 56(c) Advisory Committee’s notes. The

party seeking summary judgment bears the initial

burden of proving there is no genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In

response, the nonmoving party cannot rest on bare

pleadings alone but must use the evidentiary tools

listed above to designate specific material facts

showing that there is a genuine issue for trial. /d. at

324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598

(7th Cir.2000). A material fact must be outcome

determinative under the governing law. Jnsolia, 216

F.3d at 598-99. Although a bare contention that an

issue of fact exists is insufficient to create a factual

dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492

(7th Cir.2000), the court must construe all facts in a

light most favorable to the nonmoving party as well

as view all reasonable inferences in that party’s

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

17a

FACTS

From March 1993 to January 2002, Pirant was

employed by the USPS as a mail handler, working

the night shift first at the USPS’s O’Hare facility and

then at its Busse facility. USPS’s Local Rule 56.1

Statement of Material Facts J 1, hereinafter USPS

{ _. During that time, Pirant accumulated several

unexcused absences. Jd. 94] 2-12.As a result, Pirant

received a number of disciplinary’ sanctions,

including multiple suspensions. Jd.

On March 29, 2000, Pirant was given a long-

term suspension for failing to maintain a regular

attendance __ record. Td. §10.Pirant remained

suspended until March 15, 2001 when she returned

to work under what the USPS termed a “Last

Chance Agreement” (“the agreement”). /d. § 12.Under

the agreement, Pirant was required, among other

things, to maintain satisfactory attendance, which

meant no more than three unscheduled absences and

no instances of AWOL, or absent without official

leave. Id. 4 13.

*2 During that spring and summer, Pirant

had several unscheduled absences./d. §/{| 14-17.On

July 17, September 2 and September 3, Pirant was

absent due to an alleged illness. /d. On August 14,

2001 and September 25, 2001, Pirant was AWOL.

Id. For these latter absences, Pirant did not claim

then, nor does she now, that they were anything

other than unexcused. /d.

On September 28, 2001, Pirant was notified of

18a

her removal from employment because of her

absences and for other violations of the agreement.

ld. §| 18.0n October 26, 2001, however, Gerald

Kubick, plant manager of the Chicago Airmail

Center and the Chicago Metro Surface Hub, at

Pirant’s request, placed her removal in abeyance for

45 days. Id. {| 19.The abeyance agreement, initialed

by both Kubick and Pirant, stipulated:

“Hold in abeyance for 45 days 12/10/01. Must not

have any further unsched. absences. No conduct

issues. No work perf. issues. Agree only to discuss in

45 days.”

Id. The abeyance agreement further provided that

Pirant could still be removed for the violations of the

agreement even if she maintained perfect attendance

during the 45 day period her removal was held in

abeyance. /d. {| 20.

On December 5, 2001, at 10:30 p.m., three

hours before her next shift was to begin, Pirant

called in an unscheduled absence. Jd. {| 21.She

returned to work on December 7, 2001, and remained

employed until January 4, 2002, when the USPS

again issued her a notice of removal, thereby

terminating her employment./d. {| 25.

An arbitrator denied Pirant’s union grievance

on May 6, 2002, holding that the USPS had just

cause to remove her. /d. 4 30.0n December 29, 2003,

Pirant filed a complaint under the FMLA, which was

later amended on February 10, 2004. /d 4 31.

On May 26, 2004, the USPS answered Pirant’s

19a

amended complaint. Jd. § 37.In its answer, the

USPS admitted that Pirant had been employed by

the USPS for at least 1,250 hours in the 12 months

prior to the commencement of her leave./d@. {| 38.On

June 24, 2005, the USPS was given leave to file an

amended answer. /d. § 40.In the amended answer,

the USPS denied that Pirant had worked at least

1,250 during that period. Jd.

DISCUSSION

Congress enacted the FMLA in part “to entitle

employees to take reasonable leave for medical

purposes.” 29 U.S.C. § 2601(b)(2). The FMLA

provides “eligible employees” of a covered employer

the right to take unpaid leave of up to 12 work weeks

in any 12 month period for a “serious health

condition” as defined by the FMLA. /Jd.; see 29

U.S.C. § 2612(a)(1). After the period of qualified

leave expires, the employee is entitled to be

reinstated to the “position of employment held when

the leave commenced” or “an equivalent position

with equivalent employment benefits, pay, and other

terms and conditions of employment.” /d; see 29

U.S.C. § 2614(a). To insure the availability of these

guarantees, the FMLA declares it “unlawful for any

employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right

provided.” /d.; see 29 U.S.C. § 2615(a)(1).

*3 The USPS contends that Pirant was not an

“eligible employee” as defined by the FMLA because

she did not work the requisite 1,250 hours during the

12 months prior to the commencement of her desired

20a

leave. Under the FMLA, an “eligible employee” is

one who has worked for a covered employer for at

least 12 months, has worked at least 1,250 hours

during the previous 12 months, and has _ been

employed at a worksite where there are at least 50 or

more employees within a 75 mile radius. 29 U.S.C.

§ 2611(2)(A); 29 U.S.C. § 2611(2)(B)(ii). An employee

must satisfy each of these criteria independently to

be eligible for FMLA leave. 29 C.F.R. § 825.110.

Thus, an employce who has less than 1,250 hours of

service in the previous 12 month period is not

entitled to the protections of the FMLA and may not

maintain an action under the Act. 29 C.F.R.

§ 825.110.

|! In its opening memorandum the USPS also argued that it is

entitled to summary judgment because Pirant failed to timely

file suit under the FMLA. The argument is unavailing. Under

the FMLA, 29 U.S.C. § 2617(c)(1)(3), an action for a violation of

the statute must be brought within two years of the last event

constituting the alleged violation for which the action is

brought. The parties agree that the date of the last event in

this case was January 4, 2002, the date when Pirant’s

employment with the USPS was terminated.

Pirant originally filed suit on December 29, 2003, which was

within two years of her termination. The court subsequently

dismissed Pirant’s complaint with leave to amend, which she

did on February 10, 2004. Under Fed.R.Civ.P. 15(c), an

amendment of a complaint relates back to the date of the

original complaint when the claim asserted in the amended

complaint arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original complaint.

Since Pirant’s amended complaint raised claims based on the

same conduct, transactions, and occurrences alleged in her

original complaint, the amended complaint related back to the

21a

To determine whether an employee has

worked the minimum 1,250 hours of service, the

FMLA directs courts to examine the principles

established under the Fair Labor Standards Act

(“FLSA”) for determining compensable hours of

work. 29 U.S.C. § 2611(2)(C); 29 C.F.R. § 825.110(c).

Under the FLSA, “hours worked” does not include

time paid, but only time spent working. Kosakow v.

New Rochelle Radiology Associates, 88 F.Supp.2d

199, 205 (S.D.N.Y. 2000). Specifically, any work

hours paid when no work was performed due to

vacation, holiday, illness, and other similar causes

are not considered “hours of employment” under the

FLSA. 29 U.S.C. § 207(e)(2).

If an employer does not maintain an accurate

record of hours worked by an employee, the employer

has the burden of showing that the employee has not

worked the requisite hours. 29 C.F.R. § 825.110(c).

“An employer must be able to clearly demonstrate

that such an employee did not work 1,250 hours

during the previous 12 months in order to claim that

the employee is not ‘eligible’ for FMLA

leave.”/d.“[A]ny accurate accounting of actual hours

worked under FLSA’s principals [sic ] may be

used.” /d.

It is undisputed that Pirant worked at least

1,248.8 hours in the 12 months prior to the

commencement of her leave. Pirant argues, however,

that it should be presumed that she werked the

date of the timely filed original complaint. Accordingly,

Pirant’s sult was timely filed.

22a

requisite 1,250 hours because 1) the USPS admitted

in its original answer to her complaint that she did;

2) the USPS failed to count all of her FMLA hours;

and 3) if there is any shortfall, it should be

disregarded as de minimis.

A. The USPS’s Admission In Its Original Answer

Is Not Impeaching

Pirant contends that the USPS’s admission in

its original answer that she had worked more than

1,250 hours in the 12 months preceding the

commencement of her leave is sufficient to defeat

summary judgment because it would be admissible

at trial to impeach the USPS’s revised calculation of

her FMLA hours. As such, Pirant maintains, the

USPS’s original answer creates a fact issue as to

whether Pirant worked the requisite 1,250 hours.

*4 Pirant relies on Nisbet v. Van Tuyl, 224

F.2d 66, 71 (7 Cir. 1955). In Nisbet, the Seventh

Circuit stated:

“Upon a motion for summary judgment the

court, in considering the pleadings upon which the

motion is in part based, considers amended pleadings

rather than prior pleadings superseded by the

amended pleadings. An amended pleading

ordinarily supersedes the prior pleading. The prior

pleading is in effect withdrawn as to all matters not

restated in the amended pleading, and becomes

functus officio. Therefore the argument of

defendants in this regard is untenable. Upon a trial

of the issues raised by the pleadings, including the

23a

amended complaint, a complaint superseded thereby

might well be offered in evidence by the defense if it

contains material admissions by the plaintiffs named

in the amended complaint. Such evidence would be

admissible in order to enable the court to determine

the facts upon the issues being tried. Conversely,

upon the trial, plaintiffs would be permitted to show

by evidence the explanation, if any there be, as to

why the facts relied on by defendants as admissions

were stated in the amended complaint differently

than the way in which they were stated in the

original complaint.”

224 F.2d at 71. Superficially Misbet appears

to foreclose Pirant’s argument, as it expressly

precludes consideration of the prior pleading at the

summary judgment stage. In Misbet, however, the

defendant was attempting to rely on the prior

pleading to show the absence of a material fact.

Under those circumstances, the rationale for

excluding consideration of the prior pleading is clear:

to hold otherwise would defeat the plaintiffs right to

amend her pleadings. Here, though, no such interest

is at stake, because Pirant relies on the USPS’s

amended answer to show the presence of a material

fact issue. Unlike in Nisbet, acknowledging the prior

pleading in these circumstances is not tantamount to

ignoring the amended pleading, since the version of

facts in the prior pleading need not be treated as a

conclusive judicial admission, but instead as a mere

evidentiary admission, which, as the USPS concedes,

is how they would be treated at trial. The court

therefore finds that Msbet is inapposite and

considers the USPS’s original answer in resolving its

24a

motion for summary judgment,

It is of little consequence, though, because the

USPS’s prior admission that Pirant had worked the

requisite 1,250 hours is insufficient to create a

genuine issue of material fact. In this case, whether

Pirant worked a sufficient number of FMLA hours is

not an issue that depends on the credibility of a

witness. As Pirant concedes, the USPS has

presented an accurate and objective measure of her

FMLA hours: her payroll records. The credibility of

the records is not at issue. Thus, the issue is simply

whether the hours reflected in her payroll records

add up to 1,250. If they do, she is eligible. If not, she

is not. Accordingly, the USPS’s original answer is

insufficient to defeat summary judgment.

B. The USPS Counted Ali of Pirant’s FMLA

Hours

*5 Pirant argues that the USPS undercounted

her FMLA hours for three reasons: 1) for every

payroll period but one, the USPS relied on the “Paid

Hrs” line of her payroll records, which she contends

did not capture all of her FMLA hours; 2) it failed to

count two hours she lost when her supervisor

wrongfully suspended her, directing her to clock out

two hours before the end of her scheduled shift; and

3) it omitted the several off-the-clock minutes she

spent each day changing into and out of her work

clothes and protective gear.

25a

5. Failure to Rely on the “TACS Hrs” Line of the

Payroll Records

In its opening memorandum, the USPS

maintained that Pirant earned 25 FMLA hours

between December 3, 2001 and December 5, 2001,

giving her a total of 1249,8 FMLA hours since

December 6, 2000. After Pirant attacked both totals,

the USPS revised its calculations, maintaining in its

reply memorandum that she worked 24 FMLA hours

during that three-day stretch in early December

2001 and 1248.8 FMLA hours for the 12 months

preceding the commencement of her leave.

Pirant contends that the USPS’s calculation in

its opening memorandum was based on the “TACS

Hrs” line of her payroll records, whereas the

substitute calculation in the reply memorandum

utilized the “Paid Hrs” line. Pirant argues that the

USPS’s initial use of her “TACS Hrs,” which in this

and other instances are higher than “Paid Hrs,”

creates a genuine issue of material fact as to whether

“TACS Hrs” include FMLA hours not captured by

“Paid Hrs” and therefore whether they should have

been used to calculate her FMLA hours for every

other payroll period.

The USPS tracked employee hours at the

Busse facility through a time-clock system called the

Time/Attendance Control System (““TACS”).

Employees “clocked in” at the start of their shift and

then “clocked out” at its end. The hours recorded by

the TACS were then used by the USPS to determine

an employee’s compensable hours.

26a

The USPS’s payroll records tracked, among

other things, employees’ daily hours, as well as their

hours for the biweekly payroll period. An employee’s

daily hours were subdivided into “Code 52” and

“Code 53” hours, which as will be explained further

below, loosely represent “regular pay” and “overtime

pay’ hours respectively. An employee’s hours for the

biweekly pay period were subdivided into “Paid Hrs”

and “TACS Hrs,” while each of those respective

categories were then themselves subdivided into

“Code 52” and “Code 53” hours. “Paid Hrs” and

“TACS Hrs” are each a composite of the daily “Code

52” and “Code 53” hours. The dispute in this case,

however, centers on whether “Paid Hrs” and “TACS

Hrs” capture different hours, and if so, which lne

best reflects Pirant’s FMLA hours.

The parties’ briefs on this issue are not

particularly illuminating, but it is nevertheless clear

that “TACS Hrs,” at least those reflected in Pirant’s

December 1-14 payroll records, do not include FMLA

hours over and above those reflected in “Paid Hrs.”

USPS exhibit 1, page 002, shows that on Saturday,

December 7, 2001, Pirant worked 8.53 total hours,

.53 of which were overtime hours. The same page of

that exhibit also shows that on Wednesday,

December 11, 2001, Pirant worked a total of 8.51

hours, .51 of which were overtime hours. In light of

the correlation between the fractions in the “Code

52” and “Code 53” entries on those dates, it is readily

apparent that the daily “Code 52” represents a

combination of both “regular pay” and “overtime pay”

hours. It may in some instances include other types

of compensable and non-compensable hours, but in

27a

these examples there is no question that it does not.

*6 Having established that only “regular pay”

and “overtime pay” hours are reflected in the daily

“Code 52” and “Code 53” entries for December 8,

2001 through December 14, 2001, and thus that ali -£

Pirant’s. possible FMLA hours for that period are

accounted for, it is clear what the respective “Code

52” and “Code 53” entries on the “Paid Hrs” ' and

“TACS Hrs” ' lines represent. The 38.98 hours

reflected in “Code 52” of the “Paid Hrs” line is the

sum total of the daily “Code 52” entries for December

8, 2001 through December 14, 2001, minus the

overtime hours. Thus, on the “Paid Hrs” line, the

“Code 52” entry represents a “pure” total of “regular

pay’ hours, whereas the daily “Code 52” entries

represent a combination of “regular pay” and

“overtime pay” hours. On the “Paid Hrs” line, the

1.004 “overtime pay’ hours” are exclusively

represented by “Code 53.” Taken together, “Code 52”

and “Code 53” of the “Paid Hrs” line show that Pirant

worked 40.02 hours during that period and thus,

earned 40.02 FMLA qualifying hours. That sum

total is then reflected in “Code 52” of the “TACS Hrs”

line, which like the daily “Code 52” entries thus

represents a combination of “regular pay” and

“overtime pay” hours. “Code 53” of the “TACS Hrs”

line, just lhke “Code 53” of the “Paid Hrs” line,

represents a “pure” total of “overtime pay” hours:

1.04. “Paid Hrs” and “TACS Hrs” are thus, at least

in this example, merely different statements of the

same hours.

The same is true with respect to the “Paid

28a

Hrs” and “TACS Hrs’ reflected in the more relevant

USPS exhibit 1, page 001. The payroll records shows

that on ‘Tuesday, December 4, 2001, Pirant worked

one hour of overtime. As a consequence, the “Code

52” entry for that date shows “9.00” hours worked

and the “Code 58” entry shows “1.00” hour of

overtime. That one hour thus represents the

difference between the 29.99 hours of “regular pay”

hours reflected in “Code 52” of the “Paid Hrs” line

and the 30.99 hours of “regular pay” plus “overtime

pay’ hours reflected in “Code 52” of the “TACS Hrs”

line. In sum, subtracting the “6.99” hours Pirant

worked after requesting leave on December 5, 2001,

the payroll records undeniably show that Pirant

worked 24 hours between December 3 and December

5 and earned the same number of FMLA hours

during that period.

In light of the foregoing, even if the USPS

relied on the “TACS Hrs” line in its opening

memorandum, that fact is insufficient to defeat

summary judgment. Pirant cannot claim that she

worked hours, FMLA qualifying or otherwise, other

than those reflected in the daily “Code 52” and “Code

53” entries. As such, the daily “Code 52” and “Code

53” entries represent Pirant’s total possible number

of FMLA hours for those dates. Since those entries

confirm that Pirant only worked a total of 24 hours

between December 3, 2001 and December 5, 2001,

the inference urged as a result of the USPS’s

apparent mistaken reliance on the “TACS Hrs” line

is foreclosed.

29a

2. Failure to Count Hours Lost Due to Wrongful

Suspension

*7 Pirant contends that the USPS failed to

count two hours that she lost on October 5, 2001

when she was wrongfully suspended by her

supervisor and directed to clock out early. In

support of her position, Pirant cites Ricco v. Potter,

377 F.3d 599, 604-05 (6th Cir. 2004). In that case, the

Sixth Circuit held that the hours-of-service

requirement in the FMLA’s definition of “eligible

employee” included hours for which an unlawfully

terminated employee was compensated pursuant toa

make-whole arbitration award. The First Circuit

disagrees with that broad interpretation, having

previously held that the “eligible employee”

definition only includes those hours that an

employee actually worked. See Plumley v. Southern

Container, Inc., 303 F.3d 364 (1st Cir.2002). This

court need not resolve the dispute between the

circuits, as there is no evidence in this case that

Pirant’s suspension was’ wrongful. Pirant’s

argument is based entirely on her own belief, which

however honestly held is insufficient to warrant

crediting her with the two hours she would have

likely worked had she not been suspended.

3. Failure to Count Preliminary and

Postliminary Activity Hours

Pirant next argues that she should be credited

for the several off-the-clock minutes she spent each

day before and after work changing into and out of

her work clothes, which included a work shirt, apron,

30a

gloves, and shoes.

The FMLA’s standards for calculating hours of

service are derived from the FLSA, which the Portal-

to-Portal Act, 29 U.S.C. § 254, modified to provide

that employers need not compensate employces for:

activities which are preliminary to or postliminary to

[an employee’s} principal activity or activities, which

occur either prior to the time on any particular

workday at which such employee commences, or

subsequent to the time on any particular workday at

which he ceases, such principal activity or activities.

29 U.S.C. § 254. Ordinarily, changing and showering

before and after work need not be compensated

under the FLSA, though if it is “an integral and

indispensable part of the principal activity of the

employment” it must be. Steiner v. Mitchell, 350

U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). “An

activity is integral to a principal activity if the

activity is made necessary by the nature of the work

performed, it fulfills mutual obligations between the

employer and the employees, the activity directly

benefits the employer in the operation of the

business, and the activity is closely related to other

duties performed by the employees.” Aner v. Penn-

Harris-Madison Sch. Corp., 256 F.Supp.2d 854, 859

(N.D.Ind.2003) (citations omitted).

Here, the principal activity Pirant was

employed to perform was handling mail. There is no

evidence that that activity touches upon the type of

vital considerations of health, safety, or hygiene that

3la

would take Pirant’s clothes changing activities out of

the range of ordinary clothes changing and

showering that need not be compensated under the

FLSA. Compare e.g., Steiner, 350 U.S. at 247

(changing clothes and showering held to be an

integral and indispensable part of a principal work

for battery factory workers who used toxic materials

and were compelled by circumstances to change and

shower in facilities the employer was required to

provide by state law). Indeed, there is no evidence

that handling mail involved contact with hazardous

substances, nor that it required utilization of any

type of unique protective or safety gear. Instead, at

most Pirant was required to use ordinary gloves and

an apron. Donning and doffing these items would

have taken mere seconds and would have required

little to no physical or mental exertion. See Alvarez

v. IBP, Inc., 339 F.3d 894, 903 (9th Cir.2003) (time

spent donning and doffing non-unique protective

gear such as hard hats, ear plugs, frocks, safety

goggles, and hair net was not compensable). As a

consequence, Pirant was- not’ entitled = to

compensation for these activities, and thus, the

USPS was not required to include time spent

performing them in calculating her FMLA hours.

C. Pirant’s Shortfall Cannot Be Excused As De

RAv > — vo

Poe eee ee ee ere)

*8 Having previously found that Pirant’s

payroll records for December 3, 2001 through

December 5, 2001 show that she earned 24 FMLA

hours (and not 25 as originally argued) during that

period, Pirant worked a total of 1248.8 FMLA hours

32a

in the 12 months preceding the commencement of

her leave on December 6, 2001. Pirant is thus 1.2

hours short of satisfying the 1,250 hours-of-service

requirement for eligibility under the FMLA. Pirant

argues, though, that this’ shortfall should be

disregarded as de minimis.

Pirant’s counsel, whose advocacy has been

thorough and exemplary, does not cite and the court

is unable to find a case specifically addressing

whether the 1,250 hours-of-service requirement must

be strictly applied in situations as close as this. The

court’s research reveals, however, that courts have

strictly applied all of the FMLA’s numerical

requirements. See Warren v. United States Postal

Service, 147 Fed.Appx. 969 (Fed. Cir. 2005)

(employee who worked 1,240.9 hours in the 12

months preceding the date of the commencement of

her leave was not an “eligible employee” under the

FMLA); Grimsley v. Fiesta Salons, Inc., 2003 WL

117985 (E.D.Mich. Jan.7, 2003) (employer who

employed 49 employees within a 75-mile radius, one

short of the FMLA’s definitional requirement, was

not a covered employer); Babcock v. BellSouth

Advertising and Publishing Corp., 348 F.3d 73, 77

(4 Cir. 2003) (employee who commenced her

employment on June 1, 1999 was not eligible for

FMLA leave on May 27, 2000, because she had not

yet been employed for 12 months); Corcino v. Banco

Popular de Puerto Rico, 200 F.Supp.2d 507 (D. Vi.

2002) (employee who worked 1,197 hours in the

applicable 12 month period not an “eligible

employee”); A/drich v. Greg, 200 F.Supp.2d 784

(N.D.Ohio 2002) (employee who worked 1,152 hours

33a

ineligible under the FMLA). Although © strict

enforcement of the FMLA’s definitional requirements

results in the arbitrary exclusion of employees who

would otherwise be eligible, these cases counsel

against tinkering with the explicit parameters set by

Congress. The FMLA’s threshold numerical

requirements represent Congress’s careful balance of

“the demands of the workplace with the needs of

employees to take leave for eligible medical

conditions and compelling reasons,” Hukr// v. Auto

Care, Inc., 192 F.3d 437, 441 (4th Cir. 1999), and this

court 1s in no position to second guess that informed

and considered judgment. Accordingly, the court

declines to excuse Pirant’s 1.2 hour shortfall.

In light of the foregoing, Pirant did not qualify

as an “eligible employee” as of the date of the

commencement of her leave on December 6, 2001 due

to her 1.2 hour shortfall. As a result, the USPS was

entitled to terminate her employment due to the

unscheduled absence.?

2 As a final note, the court concurs with the USPS’s assessment

that, in the end, it is irrelevant whether Pirant was entitled to

KMLA leave on December 6, 2001. Pirant was already subject

to removal on December 6, 2001 due to her violation of the

March 2001 “last chance agreement” entered into as a condition

for her reinstatement following a nearly one-year suspension.

That egreement required Pirant to maintain satisfactory

attendance, which under the terms of the agreement meant nou

more than three unscheduled absences and no instances of

“AWOL.” As Pirant points out, the agreement's prohibition on

“more than three unscheduled absences” is likely

unenforceable, as it appears to abrogate Pirant’s entitlement to

FMLA leave. But even if that provision is void, the agreement’s

34a

ORDER

For the reasons stated above, the USPS’s

motion for summary judgment is granted (# 55). The

USPS’s motion to strike Pirant’s jury demand (# 76)

is therefore denied as moot. The case is terminated.

prohibition on absences without leave is not inconsistent with

the FMLA and thus provides a legitimate basis for terminating

Pirant’s employment. Pirant concedes that she was AWOL on

August 14, 2001 and again on September 25, 2001. [Each of

these absences, neither of which related to the arthritic

condition that Pirant contends entitles her to FMLA leave for

her other absences, is an independent violation of the

agreement and a valid basis for her termination. Thus, even if

Pirant were entitled to KMLA leave tor her December 6, 2001

absence, she still would not be entitled to recover in this case

because the USPS could have terminated her employment on

January 4, 2002 due to either or hoth of these instances of

AWOL. Accordingly, the USPS would still be entitled to

summary judgment even if Pirant was entitled to FMLA leave

on December 6, 2001.

35a

Appendix C

In the

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 07-1055

ANTOINETTE PIRANT,

Plaintitf-Appellant,

v.

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

On Appeal from the United States District Court

for the Northern District of [linois,

Eastern Division.

No. 03 C 9383 — Joan H. Lefkow, Judge.

DEFENDANT-APPELLEE’S

PETITION FOR PANEL REHEARING

PATRICK J. FITZGERALD

United States Attorney

for the Northern District

of Illinois

219 South Dearborn Street

Chicago, Illinois 60604

THOMAS P. WALSH

Assistant United States

Attorney

36a

Chief, Civil Division

Editor

ERNEST Y. LING

Assistant United States

Attorney

(312) 353-5870

Introduction and Statement of Purpose

Pursuant to Fed. R. App. P. 40, the United

States Postal Service respectfully petitions this

Court for panel rehearing. We do not ask this Court

to alter its judgment and disposition of the case. As

this Court correctly determined, the record failed to

support plaintiffs claims that she had worked the

requisite 1,250 hours of employment in the twelve-

month period prior to her allegedly seeking leave

under the Family Medical Leave Act, and she thus is

not entitled to relief under’ that _— statute.

Nevertheless, at the urging of the U.S. Department

of Labor (“DOL”), the Postal Service respectfully

requests that the panel rehear this case for the

limited purpose of amending its opinion to delete the

discussion of and partial reliance upon Gorman v.

Consolidated Edison Corp., 488 F.3d 586, 594 (2d

Cir. 2007), a decision that was not addressed in the

parties’ briefs or during oral argument. Reliance

upon Gorman is not necessary to affirm the district

court’s determination that plaintiff made no showing

that the time she spent donning her work shirt,

shoes, and gloves was compensable. As this Court

held, that decision was plainly correct under

37a

established law. /Pirant v. United States Postal

Service, 542 F.3d 202, 208-09 (7th Cir. 2008). We

make this unusual request because, as DOL’s amicus

brief explains, Gorman misapplies DOL’s

longstanding regulations implementing the relevant

statutes. We apologize for failing to provide the

Court with briefing on this issue earlier, but in

deference to the significant concerns articulated by

DOL, we respectfully request that the Court amend

its opinion by removing the discussion of Gorman. In

addition, we respectfully request that the panel

amend or delete footnote two, which we believe

inaccurately describes the holding of JBP, Inc. v.

Alvarez, 546 U.S. 21 (2005). Prrant, 542 F.3d at 208,

nS.

Statement

1. The Fair Labor Standards Act

determines whether an employee has satisfied the

Family Medical Leave Act’s 1,250 hours of service

requirement. See 29 U.S.C. § 2611(2)(C). An

employer under the FLSA generally must

compensate its employees at either minimum wage

or overtime rates for all “hours worked.” 29 U.S.C.

§§ 206, 207. The Portal-to-Portal Act carves out a

limited exception to this general rule, relieving an

employer of responsibility for compensating

employees for travel and other “preliminary” or

“postliminary” activities occurring either before an

employee starts her first principal activity of the

workday, or after she ends her last principal activity

of the workday. 29 U.S.C. § 254(a); JBP Inc. v.

Alvarez, 546 U.S. 21, 27-28 (2005).

38a

2. It has been long established that

activities such as changing clothes prior to beginning

a work shift are ordinarily excluded from calculating

hours compensable under the FLSA (and therefore

hours counted toward the FMLA’s_ 1,250-hour

minimum), unless those activities “are an integral

and indispensable part of the lemployee’s] principal

activities.” Sterner v. Mitchell, 350 U.S. 247, 249,

256 (1956) (distinguishing time required to be spent

st worksite changing and bathing after exposure to

toxic chemicals, which was compensable, from

“changing clothes and showering under normal

conditions,” which was concededly not compensable):

Alvarez, 546 U.S. at 29 (noting same distinction); 29

C.F.R. § 790.8(c) (clothes changing that is merely a

“convenience” to the employee and not directly

related to her principal activities is not a principal

activity); 29 C.F.R. § 790.7(g) (“changing clothes”

when “performed outside the workday” and “under

the conditions normally present” is not

compensable). !

a. It was uncontested in district court that

Pirant’s time sheets showed that Pirant had not

quite worked the requisite 1,250 hours prior to

| By contrast, if an employee “cannot perform his principal

activities without putting on certain clothes, changing clothes

on the employer's premises at the beginning and end of the

workday would be an integral part of the employee’s principal

activity.” 29 C.F.R. 790.8(c). The regulations note that such a

situation “may exist where the changing of clothes on the

employer's premises is required by law, by rules of the

employer, or by the nature of the work.” 29 C.F.R. § 790.8(c)

n.65 (emphasis added).

39a

allegedly seeking FMLA leave. R. 57, {|| 40, 42.

(“R.” references are to numbered items in the Record

on Appeal.) The only evidence offered to support

plaintiffs contention that she should have been

credited for time she spent changing was a

declaration stating that when she arrived at work

she “would put on a work shirt, change shoes, put on

my apron and collect [her] gloves”; that it usually

took three to five minutes to do so; and that it took

about one minute to then walk to the time clock to

punch in. R. 62, Ex. F 4 19-21. But Pirant’s

declaration provides nothing to support a conclusion

that the time she spent on the premises changing

clothes was “integral and indispensable” to her job.

The declaration does not establish that she was

required by her employer, or regulation, or by the

nature of the work to change clothes in order to

perform her job, that she was required to change at

her workplace, or that she could not change her

clothes prior to arriving at work. R. 62, Ex. F 94 19-

21; seen. 1, supra.

A. The district court granted summary

judgment, finding, inter alia, that Pirant failed to

present any evidence that would take her clothes-

changing time “out of the range of ordinary clothes

changing .. . that need not be compensated under

the FLSA.” R. 81 at 12. In affirming that decision,

this Court cited and relied in part upon the analysis

set forth in Gorman v. Consolidated Edison Corp.,

488 F.3d 586 (2d Cir. 2007), which focused on the

nature of the work gear at issue — whether it was

unique or non-unique, and how extensive it was —

rather than upon whether changing into the work

40a

gear on the premises was required by the employer

and “integral and indispensable” to the employee’s

principal work activities. Pirant, 542 F.3d at 208-09

(citing Gorman, 488 F.3d at 593-94).

Argument

The Department of Labor’s amicus brief

explains the basis for its disagreement with Gorman,

and the basis for its concern with this Court’s

reliance upon that decision. This Court need not

opine on the disagreement that DOL has with

Gorman in order to resolve the present case. Here,

the plaintiff put forward no evidence whatsoever to

suggest that the time she spent changing clothes was

anything other than the ordinary clothes-changing

that DOL regulations and Supreme Court precedent

make clear are not compensable under the FLSA

(and accordingly do not count toward the 1,250

threshold for FMLA eligibility). See Steiner, 350

U.S. at 249, 256; Alvarez, 546 U.S. at 29-30; 29

C.F.R. §§ 790.7(g),790.8(c) & n.65; R. 62, Ex. F at 4

19-21. ‘There was no evidence that Pirant was

required to change clothes at work, nothing showing

that she could not have done so prior to coming to

work, or any other evidence that might create a

genuine dispute as to whether or not the clothes-

changing at issue here was “integral and

indispensable” to plaintiff's work. Accordingly, the

Court should affirm the district court’s grant of

summary judgment based upon straightforward

application of Sterner, A/varez and the regulations.

It need not reach the question of whether, as the

Second Circuit appears to believe, the nature of the

4la

clothing at issue can be dispositive of the inquiry.

Accordingly, in deference to DOL’s concern that

effective enforcement of the FLSA is compromised by

the Gorman decision, we respectfully request that

this Court amend its opinion by striking all

references to that decision.

Conclusion

For the foregoing reasons, we respectfully ask

that the Court grant rehearing and amend its

opinion by removing all references to Gorman v.

Consolidated Edison Corp., 488 F.3d 586 (2d Cir.

2007). The Court’s judgment of affirmance should

remain unchanged.

Respectfully submitted,

PATRICK J. FITZGERALD

United States Attorney

Northern District of Illinois

THOMAS P. WALSH

Assistant United States

Attorney

Chief, Civil Division

ERNEST Y. LING

2 In addition, we respectfully suggest that the Court take this

opportunity to delete or correct the description of the A/varez

decision set forth in footnote 2 of its decision. For the reasons

explained in DOL's amicus brief (at 5-6), we believe that the

footnote as currently written is inaccurate.

42a

Assistant United States

Attorney

219 South Dearborn Street

Chicago, Illinois 60604

(312) 353-5870

43a

Appendix D

No. 07-1055

IN ‘THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ANTOINETTE PIRANT,

Plaintiff-Appellant,

Vv.

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

On Appeal from the United States District Court

for the Northern District of Illinois,

Joan H. Lefkow, Judge

BRIEF FOR THE SECRETARY OF LABOR AS

AMICUS CURIAE IN SUPPORT OF DEFENDANT-

APPELLEE’S PETITION FOR PANEL

REHEARING

Pursuant to Federal Rule of Appellate

Procedure 29, the Secretary of Labor (“Secretary”)

submits this brief as amicus curiae in support of

Defendant Appellee’s petition for panel rehearing.

The petition is limited to the issue whether this court

applied the correct legal standard in determining

that the time Plaintiff allegedly spent each day

putting on and taking off her uniform shirt, gloves,

and work shoes does not count as “hours worked”

44a

under the Fair Labor Standards Act of 1938, as

amended (“FLSA” or “Act”), 29 U.S.C. 201 et seq.,

and therefore cannot be used to satisfy the Family

and Medical Leave Act’s (“FMLA”) 1,250 hours of

service requirement for eligibility, see 29 U.S.C.

2611(2)(A). While the Secretary does not disagree

with this Court’s decision to affirm summary

judgment for the Postal Service in light of Plaintiff's

failure to allege any facts sufficient to defeat

summary judgment on this issue, the Secretary

believes that the Court should not have relied on the

Second Circuit’s decision in Gorman v. Consolidated

Edison Corp., 488 F.3d 586 (2007), cert. denied, 128

S. Ct. 2902 (2008), in concluding that the time

Plaintiff spent donning and _ =<doffing is_ not

compensable under the FLSA. See Pirant v. United

States Postal Serv., 542 F.3d 202, 208 (7th Cir.

2008). The Second Circuit’s decision in Gorman is at

odds with Supreme Court and other precedent and

with the Department of Labor’s (“Department” or

“‘DOL”) longstanding interpretation of the FLSA and

the Portal-to-Portal Act (“Portal Act”), 29 U.S.C. 251

et seq., and has been criticized by other courts.

Thus, the Secretary supports Defendant-Appellee’s

petition for panel rehearing seeking to amend the

decision in this case to eliminate any reliance on

Gorman, as well as to characterize correctly the

Supreme Court’s holding in IBP, Inc. v. Alvarez, 546

U.S. 21 (2005).

INTEREST OF THE SECRETARY OF LABOR

The Secretary has a substantial interest in the

issue presented by this petition for panel hearing

45a

because she administers and enforces the FLSA. See

29 U.S.C. 204, 216, 217. Consistent with that

responsibility, DOL has_ issued interpretive

regulations addressing the compensability of “hours

worked” under the FLSA, see 29 C.IF’.R. Pt. 785, and

the Portal Abt. See 29 C.F.R. Pt. 790. ‘The

Department also has issued formal guidance on the

compensability of donning and doffing activities

under the FLSA after the Supreme Court’s decision

in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) (in which

the United States participated as amicus curiac).

See Wage and Hour Advisory Memorandum No.

2006-2 (May 31, 2006).

The Secretary currently is prosecuting major

legal actions seeking compensation under the FLSA

for donning and doffing sanitary and protective gear.

See, e.g., Chao v. Pilgrim's Pride, No. 07-01352 (N.D.

Tex. filed Aug. 6, 2007), transferred to W.D. Ark., No.

08-01011 (Feb. 15, 2008); Chao v. Tyson Foods, Inc.,

No. 02-1174 (N.D. Ala. filed May 9, 2002). In

addition, the Secretary has participated as amicus

curiae in a number of federal appeals addressing the

compensability of donning and doffing such gear.

See, e.g., DeAsencio v. Tyson Foods, Inc., 500 F.3d

361 (3d Cir. 2007), cert. denied, 128 S. Ct. 2902

(2008); Tum v. Barber Foods, Inc., 360 F.3d 274 (st

Cir. 2004), aff'd in part, rev'd in part, and remanded,

546 U.S. 21 (2005); Alvarez v. IBP, Inc., 339 F.3d 894

(9th Cir. 2003), affd 546 U.S. 21 (2005). The

Department believes that its expertise on this issue

Available at: http://www.dol.gov/esa/whd/PieldBulletins/

visoryMemo2006 2.pdf.

3

Ad

46a

would be helpful to this Court in considering

whether to grant the petition for panel rehearing and

amend its decision.

ARGUMENT

THIS COURT DID NOT NEED TO RELY ON

THE SECOND CIRCUIT'S ERRONEOUS

DECISION IN GORMAN TO CONCLUDE

THAT PLAINTIFF'S DONNING AND

DOFFING ACTIVITIES WERE NOT

COMPENSABLE UNDER THE FLSA

l. The FLSA provides the legal standards

for determining whether an employee has satisfied

the FMLA’s 1,250 hours of service requirement. Sec

29 U.S.C. 2611(2(C). Under the FLSA, an employer

generally must compensate its employees at either

minimum wage or overtime rates for all “hours

worked.” See 29 U.S.C. 206, 207. The Portal Act,

however, creates a limited exception to this general

rule, relieving an employer of responsibility for

compensating employees for travel and _ other

“preliminary” or “postliminary” activities that occur

either before an employee starts his or her first

principal activity of the workday, or after an

employee ends his or her last principal activity of the

workday. See 29 U.S.C. 254(a). All time in between

an employee’s first and last principal activity (with

the exception of bona fide breaks) is part of the

“continuous workday” and must be compensated.

See LBP, Inc. v. Alvarez, 546 U.S. 21, 28-29 (2005).

The Supreme Court has held that “activities

47a

performed either before or after the regular work

shift, on or off the production line, are compensable

under the portal-to-portal provisions of the Fair

Labor Standards Act if those activities are an

integral and indispensable part of the principal

activities for which covered workmen are employed.”

Steiner v. Mitchell, 350 U.S. 247, 256 (1956). The

Court recently clarified that “any activity that is

‘integral and indispensable’ to a ‘principal activity’ is

itself a ‘principal activity’ under § 4(a) of the Portal-

to-Portal Act.” Alvarez, 546 U.S. at 37. Such an

activity is compensable under the FLSA and begins

the “continuous workday.” Id.

In Steiner, the Supreme Court held that

changing into old clean work clothes and showcring

on the employer’s premises by battery plant workers

were integral and indispensable to the employees’

principal activitics. See 350 U.S. at 249, 254-58.

The Court based its holding in part on DOL’s

regulations interpreting the Portal Act. See id. at

255 n.Y (relying on 29 C.F.R. 790.8). These

regulations, which were promulgated shortly after

the Portal Act was passed, state that if an employee

“cannot perform his principal activities without

putting on certain clothes, changing clothes on the

employer's premises at the beginning and end of the

workday would be an integral part of the employee's

principal activity.” 29 C.F.R. 790.8 (c). The

regulations explain that “[sluch a situation may exist

where the changing of clothes on the employer's

premises is required by law, by rules of the employer,

or by the nature of the work.” 29 C.F.R. 790.8(c)

n.65. By contrast, “if changing clothes is merely a

48a

convenience to the employee and not directly related

to his principal activities, it would be considered as a

‘preliminary’ or ‘postliminary’ activity rather than a

principal part of the activity.” 29 C.F.R. 790.8(c).

DOL’s longstand:ng position is that “if employees

have the option and the ability to change into the

required gear at home, changing into that gear is not

a principal activity, even when it takes place at the

plant.” Wage and Hour Advisory Memorandum No.

2006-2, at 3.4

:. As an initial matter, this Court should

take this opportunity to correct its misreading of the

Supreme Court's decision in Alvarez. This Court

stated that Alvarez held “that post-donning and pre-

doffing waiting time was not a principal activity and

therefore was excluded from coverage under the

Portal-to-Portal Act.” Pirant v. United States Postal

Serv., 542 F.3d 202, 208 n.2 (7th Cir. 2008). In fact,

the Supreme Court held that post-donning and pre-

doffing waiting time (as well as post-donning and

pre-doffing walking time) was compensable as part of

4 DOL’s Portal Act regulations were ratified by Congress in

1949 when former Section 16(c) of the FLSA was enacted. See

Steiner, 350 U.S. at 254-55 & n.8 (quoting Section 16(c) to the

effect that existing Wage-Hour regulations and interpretations

were to remain in effect unless inconsistent with the 1949

amendments, 63 Stat. 920 (1949), 29 U.S.C. 208 (note)). In any

event, these longstanding regulations, as well as this brief

construing these regulations and Wage and Hour Advisory

Memorandum No. 2006-2, are entitled to deference See

Skidmore v. Swift & Co, 3238 U.S. 134, 140 (1944)

(Administrator's FLSA interpretations “constitute a body of

experience and informed judgment to which courts and litigants

may properly resort for guidance”)

49a

the continuous workday. See Alvarez 546 U.S. at 37,

40. ‘The only time the Supreme Court found non-

compensable was pre-donning waiting time. See id.

at 40.

3 Moreover, while this Court

acknowledged Steiner’s “integral and indispensable”

test, see Pirant, 542 F.3d at 208, it primarily relied

on the Second Circuit’s flawed decision in Gorman v.

Consolidated Edison Corp., 488 F.3d 586 (2007), cert.

denied 128 S. Ct. 2902 (2008), to conclude that

Plaintiffs donning and doffing is not compensable.

This reliance on Gorman, however, is not necessary

to decide this case. Rather, this Court could have

affirmed the district court’s grant of summary

judgment to the Postal Service on the basis that

Plaintiff failed to allege that the donning and doffing

she performed was required to be done on the Postal

Service’s premises, if it was in fact required at all.

See Wage and Hour Advisory Memorandum No.

2006-2, at 3 (clothes changing is not a principal

activity if it can be done at home); 29 C.F.R. 790.8(c)

(clothes changing that is merely a “convenience” to

the employee and not directly related to her principal

activities is not a principal activity).

The affidavit Plaintiff submitted to support

her claim that she is entitled to credit toward the

FMLA’s 1,250 hour eligibility requirement for the

time she spent each workday putting on and taking

off her uniform shirt, gloves, and shoes states only

that she would put these items on at the plant before

her shift. See Pl’s Ex. F, Decl. of Antoinette Pirant

filed in support of Pl’s Opp’n to Def's Mot. for Summ.

50a

J., at 4, § 19-21 (District Court Docket No. 62); see

also Defs Reply Mem. in Support of Defs Mot. for

Summ. J. at 6 (District Court Docket No. 68).

Plaintiff relied solely on this affidavit in her

opposition brief, pointing to nothing else in the

record that establishes that she performed these

activities at the plant out of necessity, rather than as

simply a convenience to herself. See Pl’s Opp’n to

Defs Mot. for Summ. J. at 2, 9. It is well settled that

conclusory allegations and self-serving affidavits,

without support in the record, are not sufficient to

defeat a motion for summary judgment. See Hall v.

Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002).

Because this Court may affirm the district court’s

entry of summary judgment on any ground that finds

support 1n the record, see Jordan v. Summers, 205

F.3d 337, 342 (7th Cir. 2000), this Court could affirm

the district court's judgment on this basis without

relying on the Second Circuit’s decision in Gorman.

4, This Court should not have relied on

Gorman because that decision did not apply the

correct criteria to determine whether clothes

changing is compensable under the FLSA. First, the

Second Circuit considered only selected regulatory

language stating that clothes changing, “when

performed under the conditions normally present,

would be considered ‘preliminary’ or ‘postliminary’

activities,” 29 C.F.R. 790.7(g), and_ thus

noncompensable under the Portal Act. See Gorman,

488 F.3d at 594. The court inexplicably ignored a

footnote appended to that regulation, which states,

“Washing up after work, like the changing of clothes,

may in certain situations be so directly related to the

ola

specific work the employee is employed to perform

that it would be regarded as an integral part of the

employee’s ‘principal activity.” 29 C.F.R. 790.7(g)

n.49. The court also did not consider another DOL

regulation, relied on by the Supreme Court in

Steiner, see supra, explaining that clothes changing

is compensable if an employee “cannot perform his

principal activities without putting on certain

clothes,” 29 C.F.R. 790.8(c), and stating that “[sluch

a situation may exist where the changing of clothes

on the employer’s premises is required by law, by

rules of the employer, or by the nature of the work.”

29 C.F.R. 790.8(c) n.65.5

Second, Gorman emphasized the “generic”

nature of the clothing worn by plaintiffs in that case,

which included helmets, goggles, and _ steel-toed

boots, to support its conclusion that donning and

doffing the clothing was not compensable. See 488

F.3d at 594. However, as the Supreme Court

recently suggested, this factor is not dispositive in

determining whether Plaintiff's donning and doffing

5 As this Court noted, Gorman distinguishes Steiner on the

basis that the equipment in Steiner protected employees from

battery acid and therefore was “indispensable to making the

working environment nonlethal.” Pirant, 542 F.3d at 208. DOL

disagrees with this aspect of the Gorman decision as well.

Clearly, an activity may be integral and indispensable to an

employee's princjpal activity without being necessitated by

lethal circumstances. See, e.g., Ballaris v. Wacker Siltronic

Corp., 370 F.3d 901, 911 (9th Cir. 2004) (donning and doffing

cleanroom “bunny suits” integral and _ indispensable to

employees’ principal activities); Chao v. Tyson Foods, Inc., 568

F. Supp. 2d 1300, 1312 (N.D. Ala. 2008) (agreeing with

Secretary’s argument that Steiner cannot be read so narrowly).

52a

is compensable under the FLSA. See Alvarez, 546

U.S. at 32 (noting that although the Ninth Circuit

had endorsed a distinction between donning and

doffing elaborate protective gear and donning and

doffing nonunique gear such as hardhats and safety

goggles, it did so “not because donning and doffing

nonunique gear are categorically excluded from

being ‘principal activities’ as defined by the Portal-to-

Portal Act, but rather because, in the context of this

case, the time employees spent donning and doffing

nonunique protective gear was ‘de minimis as a

matter of law”). Indeed, Steiner itself addressed

donning and doffing “non-unique” gear — namely, old,

clean work clothes. 350 U.S. at 256. Thus, as the

Department has made clear in its Advisory

Memorandum, whether clothing is “unique” or

“nonunique” is not dispositive in determining

whether donning and doffing the clothing is

compensable. See Wage and Hour Advisory Mem.

No. 2006-2, at 3.

Third, Gorman inappropriately emphasized

the “minimal” nature of the clothing at issue in that

case in concluding that time spent donning and

doffing that clothing at work was not compensable.

See Gorman, 488 F.3d at 594. The amount of

clothing worn, and the amount of effort involved in

putting on or taking off this clothing, does not render

donning and doffing the clothing non-compensable

under the Portal Act if it would otherwise qualify as

integral and indispensable under Steiner and the

relevant DOL regulations. See Alvarez, 339 F.3d at

903 (“[Elase of donning and ubiquity of use do not

make the donning of such equipment any less

53a

‘integral and indispensable’ as that term is defined in

Steiner.”).6

A number of courts explicitly have disagreed

with Gorman because of these flaws in its analysis.

See Spoerle v. Kraft Foods Global, Inc., 527 F. Supp.

2d 860, 864-65 (W.D. Wis. 2007) (noting that

Gorman’s interpretation of Steiner is “truly bizarre”):

see also Jordan v. IBP, Inc., 542 F. Supp. 2d 790,

808-09 (M.D. Tenn. 2008) (“[T]he Gorman Court did

not explicitly consider whether the activities at issue

there were required and necessary and whether they

primarily benefiltled the employer, and concluded,

somewhat inexplicably and in reliance on Reich [v.

IBP, Inc., 38 F.3d 1123 (10th Cir. 1994)], that an

activity is not necessarily integral just because it was

‘required by the employer or by governmental

regulation.”) (quoting Gorman, 488 F.3d at 594);

Chao _ v. Tyson Foods, 568 F. Supp. 2d at 1312

(declining to rely on Gorman); Lemmon v. City of San

Leandro, 538 F. Supp. 2d 1200, 1204 n.3 (N.D. Cal.

2007) (rejecting reliance on Gorman’s interpretation

of the “integral and indispensable” standard). As

6 The FLSA provides employers with a “de minimis” defense

that allows them to avoid paying for otherwise compensable

time in certain circumstances. See Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 692 (1946) (“When the matter in

issue concerns only a few seconds or minutes of work beyond

the scheduled working hours, such trifles may be

disregarded.”). When applying this defense in the donning and

doffing context, however, it is the amount of aggregate time

spent donning and doffing, and not the amount of clothing

worn, that is relevant. See Wage and Hour Advisory Mem. No.

2006-2, at 4.

54a

explained above, this Court need not expressly reject,

or even mention, Gorman in order to decide this case.

See section 3, supra. Given the problems with the

Second Circuit’s analysis, which other courts have

noted, this Court should not have relied on that

decision here.

CONCLUSION

For the foregoing reasons, the Secretary

supports Defendant-Appellee’s petition for panel

rehearing. This Court should nonetheless affirm

summary judgment for Defendant-Appellee for the

reasons stated above.

Respectfully submitted,

GREGORY F. JACOB

Solicitor of Labor

STEVEN J. MANDEL

Associate Solicitor

PAUL L. FRIEDEN

Counsel for Appellate

Litigation

JOANNA HULL

Senior Attorney

U.S. Department of Labor

Office of the Solicitor

200 Constitution Ave., N.W.

Suite N-2716

o0a

Washington, D.C. 20210

(202) 693-5555

56a

Appendix E

United States Court of Appeals,

For the Seventh Circuit

Chicago, Illinois 60604

December 3, 2007

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD D. CUDAHY, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 07-1055

ANTOINETTE PIRANT, Appeal from the United

a States District Court for

Plaintiff Appellant, the Northern District of

Illinois, Eastern Division.

Vv.

No. 03 C 93838

UNITED STATES

POSTAL SERVICE, Joan Humphrey Lefkow,

Judge.

Defendant-Appellee.

ORDER

Based on the petition for panel rehearing filed

on November 3, 2008, by Defendant-Appellee United

States Postal Service, the panel opinion issued on

September 4, 2008, is hereby modified as follows:

57a

Footnote number 2 on page 12 of the slip

opinion is deleted.

Pages 12 and 138 of the slip opinion are

modified to delete the full paragraph that

begins “In Gorman v. Consolidated Edison

Corp., 488 F.3d 586, 594 (2d Cir. 2007)... .”

and to remove certain text from the final

two paragraphs of the opinion. Pages 12

and 13 now read:

noted, however, that “changing

clothes and showering under normal

conditions” generally would not be

compensable. Jd. at 332; see also 29

C.F.R. § 790.7(g) (“[o]ther types of

activities which ... would. be

considered ‘preliminary’ or

‘postliminary’ activities, include ...

changing clothes, washing up or

showering”); Reich v. IBP. Inc., 38

F.3d 1123, 1126 n.1 (10th Cir. 1994)

(requiring employees to put on

safety glasses, earplugs, and a hard

hat “is no different from having a

baseball player show up in uniform,

a businessperson with a suit and

tie, or a judge with a_ robe”);

Anderson v. Pilgrim’s Pride Corp.,

147 F. Supp. 2d 556 (E.D. Tex.

2001) (donning of aprons, smocks,

gloves, boots, hairnet, and earplugs

not compensable).

58a

Hlere, Pirant was not required to

wear extensive and unique

protective equipment, but rather

only a uniform shirt, gloves, and

work shoes. The donning and

doffing of this type of work clothing

is not “integral and indispensable”

to an employee’s principal activities

and therefore is not compensable

under the FLSA. It is, instead, akin

to the showering and changing

clothes “under normal conditions”

that the Supreme Court said in

Steiner is ordinarily excluded by the

Portal-to-Portal Act as merely

preliminary and postliminary

activity. Accordingly, the district

court properly concluded that Pirant

is not entitled to include this time in

her hours-of-service total for

purposes of the FMLA.

AFFIRMED.

The petition for rehearing is otherwise denied.

59a

Appendix F

In the

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 07-1055

ANTOINETTE PIRANT,

Plaintiff-Appellant,

V.

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 03 C 9383 — Joan Humphrey Lefkow, Judge.

ARGUED OCTOBER 23, 2007

DECIDED SEPTEMBER 4, 2008

Before BAUER, CUDAHY, and SYKES, Crreu/t

Judges.

SYKES, Circuit Judge.

[ORIGINAL TEXT OF SEPT. 4, 2008 OPINION,

SECTION I.C BEFORE REVISION}

60a

C. Donning and Doffing of Gloves and Uniform

Finally, Pirant claims she is entitled to credit

for the three to five minutes she spent each workday

putting on and removing her gloves, shoes, and work

shirt. The FMLA provides that the determination of

whether the hours-ofservice requirement for leave

eligibility has been met is governed by the legal

standards of the Fair Labor Standards Act ("FLSA").

29 U.S.C. § 2611(2)(C) (cross: referencing 29 U.S.C.

§ 207).

ln Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680 (1946), the Supreme Court held that the

time employees spent donning aprons and overalls

was compensable under the FLSA. But Congress

responded with the Portal-to-Portal Act, 29 U.S.C. §

254, which amended the FLSA to exclude from

compensation "activities which are preliminary to or

postliminary to [the] principal activity [the employee

is employed to perform] ... which occur either prior

to the time on any particular workday at which such

employee commences, or subsequent to the time on

any particular workday at which he ceases, such

principal activity or activities." 29 U.S.C. § 254(a)(2).

In a subsequent case interpreting the

amended statute, the Supreme Court held that

activities such as washing up or changing clothes

would be compensable only "if those activities are an

integral and indispensable part of the principal

activities for which covered workmen are cmployced

and are not specifically excluded" by the Portalto-

Portal Act. Steiner v. Mitchell, 350 U.S. 247, 256

6la

(1956). The Court held in Steiner that a battery

manufacturer must compensate its employees for the

30 minutes they spent putting on unique protective

clothing and bathing at the factory because those

activities were indispensable to the health and safety

of the employees. /d. The Court noted, however, that

"changing clothes and showering under normal

conditions” generally would not be compensable.? /d.

at 332.

In Gorman v. Consolidated Edison Corp., 488

F.3d 586, 594 (2d Cir. 2007), the Second Circuit held

that the donning of a minimal amount of nonunique

safety clothing, such as helmets, goggles, and steel-

toed boots, is not compensable under the FLSA.

Though this safety clothing was required by the

employer in Gorman, the court held that the de

minimis time spent "donning and doffing [ ] such

generic protective gear is not different in kind from

the 'changing clothes and showering under normal

conditions,’ which, under Steiner, are not covered by

the FLSA." Jd. (quoting Stezner, 350 U.S. at 249).

The court distinguished Stezneron the ground that

2In JBP, Inc. v. Alvarez, 546 U.S. 21, 40-41 (2005), the Supreme

Court held that post-donning and pre-doffing waiting time was

not a principal activity and therefore was excluded from

coverage under the Portal-to-Portal Act. ‘he Court noted that

the employer in A/varez had not challenged the court of

appeals’ holding that the donning and doffing of unique

protective gear was a “principal activity" and _ therefore

compensable; the issue before the court was whether the post-

donning/pre-doffing waiting time was compensable. /d. at 32.

62a

the special protective equipment in that case

protected the employees from battery acid and

therefore was indispensable to making the working

environment nonlethal. /d. at 593.

Gorman is consistent with regulations

implementing the Portal-to-Portal Act, see 29 C.I’.R.

§ 790.7(g) ("lolther types of activities which

would be considered 'preliminary' or 'postliminary'

activities, include ... changing clothes, washing up

or showering"), and other cases are in accord. Sec

Rerch v. LBP, Inc., 38 F.3d 1123, 1126 n.1 (10th Cir.

1994) (requiring employees to put on safety glasses,

earplugs, and a hard hat "is no different from

having a baseball player show up in uniform, a

businessperson with a suit and tie, or a judge with

a robe"); Anderson v. Pilgrim's Pride Corp., 147 F.

Supp. 2d 556 (E.D. Tex. 2001) (donning of aprons,

smocks, gloves, boots, hairnet, and earplugs not

compensable),

Here, Pirant was not required to wear

extensive and unique protective equipment, but

rather only a uniform shirt, gloves, and work shoes.

We agree with the Second Circuit's decision in

Gorman that the donning and doffing of this type of

work clothing is not "integral and indispensable" to

an employee's principal! activities and therefore is not

compensable under the FLSA. It is, instead, akin to

the showering and changing clothes “under normal

conditions" that the Supreme Court said in Ste/ner is

ordinarily excluded by the Portal-to-Portal Act as

merely preliminary and_ postliminary activity.

Accordingly, the district court properly concluded

boa

that Pirant is not entitled to include this time in her

hours-of-service total for purposes of the FMLA.

AFFIRMED.

64a

APPENDIX G

Statutory Provisions Involved

29 U.S.C.A. § 2611

2) Eligible employee

(A) In general

The term “eligible employee” means an

employee who has been employed--

G) for at least 12 months by the

employer with respect to whom leave

is requested under section 2612 of

this title; and

(ii) for at least 1,250 hours of service

with such employer during the

previous 12-month period.

(C) Determination

For purposes of determining whether an

employee meets the hours of service

requirement specified in subparagraph

(A)Qii), the legal standards established

under section 207 of this title shall apply.

65a

29 U.S.C.A. § 203

As used in this chapter

(o) Hours Worked.--In determining for the

purposes of sections 206 and 207 of this title

the hours for which an employee is employed,

there shall be excluded any time spent in

changing clothes or washing at the beginning

or end of each workday which was excluded

from measured working time during the week

involved by the express terms of or by custom

or practice under a bona fide collective

bargaining agreement applicable to the

particular employee.

29 U.S.C.A. § 254

(a) Activities not compensable

Except as provided in subsection (b) of this

section, no employer shall be subject to any

hability or punishment under the Fair Labor

Standards Act of 1938, as amended [29

U.S.C.A. § 201 et seq.], the Walsh-Healey Act

l41 U.S.C.A. § 35 et seq.}, or the Bacon-Davis

Act [40 U.S.C.A. § 276a et seq.], on account of

the failure of such employer to pay an

employee minimum wages, or to pay an

employee overtime compensation, for or on

account of any of the following activities of

66a

such employee engaged in on or after May 14,

1947

(1) walking, riding, or traveling ti

and from the actual place of

performance of the principal activity

or activities which such employee is

employed to perform, and

(2) activities which are preliminary

to or postliminary to said principal!

activity or activities, which occur

either prior to the time on any

particular workday at which = such

employee commences,

subsequent to the time on any

particular workday at which == he

ceases, such principal activity o1

activities For purposes of this

subsection, the use of an employer's

vehicle for travel by an employee and

activities performed by an employee

which are incidental to the use of

such vehicle for commuting shall not

be considered part of the

employee's principal activities if the

use of such vehicle for travel is

within the normal commuting area

tor the employer's’ business _ 01

establishment and the uss of the

employer's vehicle is subject to an

agreement n the part yf =the

employer and the employee

repres¢ ntative of sucn emp! Ver