Pirant, Antoinette v. USPS ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1055
A NTOINETTE P IRANT,
v. Plaintiff-Appellant,
U NITED S TATES P OSTAL S ERVICE,
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.
____________
A RGUED O CTOBER 23, 2007—D ECIDED S EPTEMBER 4, 2008
____________
Before B AUER, C UDAHY, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Antoinette Pirant sued her former
employer, 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 thres-
hold 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 the statutorily
required 1,250 hours during the 12-month period preced-
2 No. 07-1055
ing the date of her unscheduled absence from work. See
29 U.S.C. § 2611(2)(A). The district court granted sum-
mary 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 preced-
ing the date of her absence—1.2 hours shy of the mini-
mum required by the FMLA.
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 require-
ment. This change in the Postal Service’s pleading, permit-
ted by the district court in its discretion, is not evidence
of a material factual dispute about Pirant’s FMLA eligibil-
ity; 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
No. 07-1055 3
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 ex-
cluded from her FMLA hourly total.
I. 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, how-
ever, Pirant convinced her superiors to reduce the termina-
tion to a suspension.
In March 2001 Pirant again avoided termination by
acceding to a written “last chance” agreement. The agree-
ment provided as follows: “It is agreed by all parties to
this agreement that any violation of the terms or condi-
tions 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 con-
vinced one of her supervisors to hold it in abeyance until
December 10. This was merely a delay of the termination,
4 No. 07-1055
however, not a rescission of it; the additional grace period
did not entitle Pirant to reinstatement, even if she main-
tained a perfect attendance record in the interim.
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 work.1 Pirant
clocked out and went home two hours early, but com-
plained 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 syndrome 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—presum-
ably 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
1
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.
No. 07-1055 5
October 5. She had 15 days to do so, but did not meet
this deadline.
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 submit-
ted 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 explana-
tion “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 re-
quired 1,250 hours in the 12 months preceding her un-
scheduled absence in order to qualify for FMLA coverage.
6 No. 07-1055
Later, however, the district court granted the Postal Ser-
vice’s motion for leave to file an amended answer denying
that 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
Hrs. Both measures fell just short of the 1,250 hours
required for FMLA eligibility.
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 ab-
sence. 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
No. 07-1055 7
and overtime pay categories. Either way, Pirant had not
come forward 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 ex-
cluded 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.
II. Analysis
We review a grant of summary judgment de novo,
construing the facts and all reasonable inferences in favor
of the nonmoving party. Tutman 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 (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 em-
ployees 12 weeks of leave for the birth or adoption of a
8 No. 07-1055
child; to care for 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 em-
ployee 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-Illinois, 223 F.3d 579, 582 (7th Cir. 2000)
(emphasis added). We proceed then to Pirant’s remaining
arguments.
A. The FMLA’s 1,250-hour Requirement
Pirant maintains that the Postal Service’s initial admis-
sion of her FMLA eligibility, and the removal and replace-
ment of that admission with a denial in the amended
answer, is enough to establish a material factual dispute
entitling her to a 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 be-
tween 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.
No. 07-1055 9
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 estab-
lished (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 “over-
time” 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
Pirant also argues that she should be credited for the two
hours she alleges she missed when her supervisor improp-
erly ordered her to clock out early. Citing the Sixth Cir-
10 No. 07-1055
cuit’s decision in Ricco 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. Ricco 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 likely would have worked but for her
unlawful termination.” Id. 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 and 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 formal challenge to her suspension, Pirant
has accepted that she is not entitled to either com-
pensation or FMLA credit for the lost two hours.
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
No. 07-1055 11
removing her gloves, shoes, 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 Stan-
dards Act (“FLSA”). 29 U.S.C. § 2611(2)(C) (cross- referenc-
ing 29 U.S.C. § 207).
In 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 Por-
tal-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
employed and are not specifically excluded” by the Portal-
to-Portal Act. Steiner v. Mitchell, 350 U.S. 247, 256 (1956).
The Court held in Steiner that a battery manufacturer
must compensate its employees for the 30 minutes they
spent putting on unique protective clothing and bathing
at the factory because those activities were indispensable
to the health and safety of the employees. Id. The Court
12 No. 07-1055
noted, however, that “changing clothes and showering
under normal conditions” generally would not be com-
pensable.2 Id. at 332.
In Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594
(2d Cir. 2007), the Second Circuit held that the donning of
a minimal amount of nonunique safety clothing, such
as helmets, goggles, and steel-toed boots, is not compensa-
ble under the FLSA. Though this safety clothing was
required by the employer in Gorman, the court held that
the de minimis time spent “donning and doffing [ ] such
generic protective gear is not different in kind from the
‘changing clothes and showering under normal condi-
tions,’ which, under Steiner, are not covered by the FLSA.”
Id. (quoting Steiner, 350 U.S. at 249). The court distin-
guished Steiner on the ground that the special protective
equipment in that case protected the employees from
battery acid and therefore was indispensable to making
the working environment nonlethal. Id. at 593.
2
In IBP, Inc. v. Alvarez, 546 U.S. 21, 40-41 (2005), the Supreme
Court held that post-donning and pre-doffing waiting time
was not a principal activity and therefore was excluded
from coverage under the Portal-to-Portal Act. The Court
noted that the employer in Alvarez had not challenged the
court of appeals’ holding that the donning and doffing
of unique protective gear was a “principal activity” and
therefore compensable; the issue before the court was
whether the post-donning/pre-doffing waiting time was
compensable. Id. at 32.
No. 07-1055 13
Gorman is consistent with regulations implementing the
Portal-to-Portal Act, see 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”), and other cases are in accord.
See 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).
Here, Pirant was not required to wear extensive and
unique protective equipment, but rather only a uniform
shirt, gloves, and work shoes. We agree with the
Second Circuit’s decision in Gorman that the donning and
doffing of this type of work clothing is not “integral and
indispensable” to an employee’s principal activities and
therefore is not compensable under the FLSA. It is, instead,
akin to the showering and changing clothes “under normal
conditions” that the Supreme Court said in 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.
A FFIRMED.
9-4-08