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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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.
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29 U
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STATUTES

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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
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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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0244%3A1. Public record. Not legal advice.