Rochell Mitchell v. JCG Industries , 753 F.3d 695 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
May 28, 2014
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2115
ROCHELLE MITCHELL, et al.,
individually and on behalf of all
others similarly situated,
Plaintiffs-Appellants,
v.
JCG INDUSTRIES, INC., and
KOCH FOODS, INC.,
Defendants-Appellees.
____________________
2 No. 13-2115
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 6847 — Robert M. Dow, Jr., Judge.
____________________
ORDER
On April 1, 2014, plaintiffs-appellants filed a petition for re-
hearing and for rehearing en banc, and on April 17, 2014, defend-
ants-appellees filed an answer to the petition. A vote of the active
members of the court on whether to grant rehearing en banc was
requested and a majority of the judges have voted to deny the pe-
tition. 1
The petition is therefore DENIED.
1Chief Judge Wood, Judge Rovner, Judge Williams and Judge Hamilton
voted to grant the petition for rehearing en banc.
No. 13-2115 3
WILLIAMS, Circuit Judge, with whom WOOD, Chief Judge,
and ROVNER and HAMILTON, Circuit Judges join, dissenting
from denial of rehearing en banc. This is an important case
with far-reaching implications for, among others, workers
who are being paid minimum wage or close to it. As set forth
in Chief Judge Wood’s well-written dissent and also in the
petition for rehearing, this case should have been heard en
banc because the majority opinion calls into question the ap-
plication of the “continuous workday” doctrine of the Fair
Labor Standards Act (“FLSA”), erroneously applies de mini-
mis analysis to the FLSA in contravention of Supreme Court
precedent, and improperly applies the summary judgment
standard under Federal Rule of Civil Procedure 56.
Under the FLSA, an employer and employee may collec-
tively bargain to make non-compensable “any time spent in
changing clothes or washing at the beginning or end of each
workday …” 29 U.S.C. § 203(o). Congress adopted section
203(o) with full knowledge of the then-existing Department
of Labor definition of “workday” known as the “continuous
workday” rule or doctrine—which states that the workday
is, “in general, the period between the commencement and
completion on the same workday of an employee’s principal
activity or activities.” 29 C.F.R. § 790.6(b); see Sandifer v. U.S.
Steel Corp., 134 S. Ct. 870, 875-76 (2014) (describing history of
FLSA). Applying reasoning that I believe contravenes the
plain language of both the FLSA and the Department of La-
bor’s definition, the majority finds that the employees of the
chicken processing plant work not one eight-hour day, but
two four-hour workdays broken up by a thirty-minute lunch
break. Mitchell v. JCG Indus., Inc., 745 F.3d 837, 840 (7th Cir.
2014). Under the majority’s approach, any time spent doffing
clothes during the start of the lunch break is actually at the
4 No. 13-2115
end of the first four-hour workday, and any time donning
clothes at the end of the lunch break is actually at the begin-
ning of the employees’ second four-hour workday, and so
the donning and doffing during the mid-day lunch break is
subject to the collective bargaining agreement under §
203(o). Id. The day can be broken up that way, the majority
states, because the employees have an unpaid lunch break
and that non-compensable period must act as a break be-
tween the first workday and the second workday. Id. The
Department of Labor’s “general” definition of a continuous
workday does not apply here, the majority continues, be-
cause this case presents a “compelling reason to recognize an
exception” to the continuous workday doctrine, namely that
there are actually two four-hour workdays. Id.
Setting aside the specific facts of this case, I have serious
concerns about what effect the majority’s analysis will have
on the “continuous workday” doctrine going forward. Un-
der the doctrine, workers must be compensated for time they
spend doing what might otherwise be non-compensable ac-
tivities if those activities occur during the “period between
commencement and completion on the same workday of an
employee’s principal activity or activities,” subject to FLSA
carve outs. IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (U.S. 2005)
(quoting 29 C.F.R. § 790.6(b)). Normally, an employee who
commences her first principal activity at 8 a.m., takes a half-
hour lunch break from 12-12:30, and completes her principal
activity at 4:30 p.m., has worked one continuous workday (8
a.m. – 4:30 p.m.). Kellar v. Summit Seating Inc., 664 F.3d 169,
174 (7th Cir. 2011) (noting “[w]ork activities that Kellar per-
formed after [her first integral and indispensable work activ-
ities] would be covered by the ‘continuous workday rule’”
and quoting 29 C.F.R. § 790.6); see also Alvarez v. IBP, Inc., 339
No. 13-2115 5
F.3d 894, 907 (9th Cir. 2003) (noting the workday is “continu-
ous, not the sum of discrete periods”), aff’d by IBP, Inc., 546
U.S. at 29. She must be compensated for all of that period,
except for the bona fide lunch break. 29 C.F.R. § 785.19 (ex-
cluding bona fide lunch breaks from “worktime”). However,
based on the majority’s analysis, that same employee now
has worked two continuous workdays (8 a.m. – 12 p.m. and
12:30 p.m. – 4:30 p.m.), twice commenced her principal activ-
ities, and twice completed her principal activities, all be-
tween sunrise and sunset. Mitchell, 745 F.3d at 840. In other
words, whereas before the majority’s opinion the employee
only had one “beginning [and] end” of the workday that is
subject to collective bargaining, now that same employee has
two. 29 C.F.R. § 790.6(b). I have great concern that the majori-
ty’s reasoning will spell the end of the “continuous work-
day” doctrine, which courts around this circuit have relied
upon in deciding cases, and will allow employers to negoti-
ate away otherwise compensable time. See, e.g., Harris v. Reli-
able Reports Inc., No. 13-cv-210, 2014 U.S. Dist. LEXIS 31223,
at *13-14 (N.D. Ind. March 10, 2014) (denying motion to dis-
miss based on continuous workday doctrine); Espenscheid v.
Directstat USA, LLC, No. 09-cv-625, 2011 U.S. Dist. LEXIS
154706, at ** 68-70 (W.D. Wis. April 11, 2011) (denying sum-
mary judgment on continuous workday FLSA claim). Con-
gress has spoken and decided what should or should not be
subject to collective bargaining: those periods donning and
doffing at the “beginning or end of each” continuous work-
day are subject to collective bargaining; those periods during
the continuous workday are not. 29 U.S.C. § 203(o). The ma-
jority’s fracturing of the workday now calls into question the
very existence of the “continuous workday” doctrine, since
there is nothing continuous about the workday as the major-
6 No. 13-2115
ity describes it. Indeed, this dubious rationale has already
been questioned by one federal court. Abadeer v. Tyson Foods,
Inc., 09-cv-00125, 2014 U.S. Dist. LEXIS 50528, *46 (M.D.
Tenn. April 10, 2014) (“Departing radically from the conven-
tional understanding of ‘workday’—in effect since 1947 and
approved by the Supreme Court in 2005—Mitchell found
that the period before a meal break was the end of one
‘workday’ and the period after a meal break was the start of
another.”); see also Castaneda v. JBS USA, LLC, No. 08-cv-
01833, 2014 U.S. Dist. LEXIS 62390, **9-10 (D. Colo. May 6,
2014) (rejecting idea of “two four-hour work days” and
therefore not applying 203(o)).
Moreover, by carving out an “exception” to the “general”
definition propounded by the Department of Labor, the ma-
jority has created an exception to what had previously been
the “continuous workday” doctrine’s rule, but does nothing
to explain when this exception should be applied and when
it should not. Mitchell, 745 F.3d at 840. Going forward, dis-
trict courts, employers and employees are likely to be con-
fused as to when a day is continuous and when it is not.
When is a seemingly eight-hour workday actually two four-
hour workdays, or four two-hour workdays, or eight one-
hour workdays? What makes this case the “exception” to the
“general” definition, but another case not the “exception”?
This “exception” is likely to create confusion in both the ad-
ministration of law—since district courts are now faced with
the Supreme Court precedent adopting the “continuous
workday” doctrine, IBP, Inc., 546 U.S. at 29, and precedent by
our court rejecting its application—and the collective bar-
gaining process. See, e.g., Abadeer, 2014 U.S. Dist. LEXIS
50528, at *46 n.4 (discussing Mitchell and stating “[t]his new-
ly discovered ‘exception,’ then, presumably applies to all un-
No. 13-2115 7
ionized shift work that includes a meal break, which is to say
nearly all unionized shift work.”). Since the application of
the “continuous workday” doctrine involves “a question of
exceptional importance” and the majority’s decision calls in-
to question the “uniformity of the court’s decisions”—
specifically when the “exception” should apply—I believe
this case should have been heard en banc. Fed. R. App. P.
35(a).
Second, the majority holds that its conclusion is support-
ed, in the alternative, by the fact that such donning and doff-
ing is de minimis and therefore non-compensable. Mitchell,
745 F.3d at 841-843. Yet, as Chief Judge Wood stated in her
dissent, as Appellant’s petition for rehearing points out, and
as the majority itself notes, the Supreme Court has explicitly
rejected the idea that donning and doffing “on the whole”
can be subject to a de minimis analysis. As the Supreme Court
stated, 203(o) is “all about trifles – the relatively insignificant
periods of time in which employees wash up and put on var-
ious items of clothing needed for their jobs.” Sandifer, 134 S.
Ct. at 880 (emphasis in original). The majority here accepts
this statement, but nonetheless applies the de minimis doc-
trine because it believes the Supreme Court tacitly approved
such application. Mitchell, 745 F.3d at 841-843. However, this
is a misreading of Sandifer. In that case, the employees ar-
gued that twelve items of clothing were donned and doffed
and such time was compensable. Sandifer, 134 S. Ct. at 879.
The Supreme Court ultimately found that three of the items
were not actually clothing. Id. at 880. Rather than figure out
which portion of the donning and doffing time was compen-
sable and which was not, the Supreme Court wrote off the
time putting on and taking off the non-clothing items so
long as the entire period “on the whole” was “fairly character-
8 No. 13-2115
ized as ‘time spent in changing clothes or washing.’” Id. at
881 (emphasis in original) (quoting § 203(o)). In other words,
where there is an intermingling between clothes and non-
clothes item during the donning and doffing period, the
court need not be a “time study professional[]” and deter-
mine which portion relates to clothing and which does not;
so long as the period “on the whole” can be characterized as
donning and doffing non-clothes, it is compensable. Id. at
880. However, this does not change the Supreme Court’s
statement that the entire donning and doffing period cannot
be written off as de minimis since, as the Court stated, 203(o)
is all about such “trifles.” Id. Yet that is exactly what the ma-
jority does, writing off the entire period as de minimis. Mitch-
ell, 745 F.3d at 843. I am concerned that a district court faced
with a donning and doffing case will not know whether it
should apply the de minimis standard and follow the majori-
ty’s opinion, or whether it should follow the Supreme
Court’s precedent. This conflicting precedent creates confu-
sion and will disrupt the “uniformity of the court’s deci-
sions,” and for that reason, I believe this case should have
been heard en banc. Fed. R. App. P. 35(a).
Finally, I believe the majority misapplied the Federal Rule
of Civil Procedure 56 summary judgment standard and did
not view the evidence in the light most favorable to the non-
moving party. See Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.
2014). Rather, the majority discounted an affidavit presented
by Appellant that it took her 5-6 minutes to doff (and pre-
sumably) the same 5-6 minutes to don the clothing during
the lunch break. See November 1, 2012 Affidavit of Rochell
Mitchell. The majority found the employees’ estimate to be
“inconceivable.” Mitchell, 745 F.3d at 841. Taken in the light
most favorable to the employees, those 10-12 minutes daily
No. 13-2115 9
add up to 50-60 minutes per week. Even if de minimis analy-
sis were appropriate here, that is not de minimis time. By ex-
plicitly rejecting Appellant’s affidavit and accepting the em-
ployer's time estimation (and confirming that with a court
staff “experiment”), the majority ignored the evidence in the
light most favorable to the employees and therefore did not
conduct the proper Rule 56 analysis. In the light most favor-
able to Appellant, how long it took to don and doff was an
issue of fact that should have been decided by a jury.
For the foregoing reasons, I dissent from denial of rehear-
ing en banc.
POSNER, Circuit Judge, concurring in denial of rehearing
en banc. Published opinions dissenting from denials of re-
hearing en banc are rare; published opinions concurring in
denials of rehearing en banc are virtually unheard of. But
this case merits such an opinion in view of assertions and
omissions in the opinion dissenting from the denial of re-
hearing en banc that relate both to the appropriateness of the
case for rehearing by the full court and to the grounds of the
panel’s decision.
Workers in a poultry processing plant in Chicago, who
are represented by a union that has a collective bargaining
agreement with their employer, stand next to a conveyor belt
and perform various operations, such as deboning, on the
chicken carcasses conveyed by the belt. Before beginning
work in the morning the workers put on a sterilized jacket,
plastic apron, cut-resistant gloves, plastic sleeves, earplugs,
and a hairnet. They are required to remove this sanitary
10 No. 13-2115
gear, except for the earplugs and hairnet at the start of their
half-hour lunch break, and put it back on before returning to
work. The issue is whether the time spent in changing dur-
ing the lunch break is worktime that must be compensated.
The panel assigned to this case ruled that the changing time
did not have to be compensated. The full court has declined
by a split vote to hear the case en banc, precipitating the dis-
senting opinion that is the focus of my discussion.
It should go without saying that mere disagreement with
a decision by a panel of the court is not a sufficient ground
for rehearing en banc. Otherwise every case in which the
panel was divided could provoke a petition for rehearing en
banc and a call by the dissenting judge for a vote on whether
to rehear the case en banc. Unremarked by the dissent is that
there are standards for granting rehearing en banc, and for
obvious reasons they do not include: “I disagree with the
panel majority.” The Seventh Circuit’s Practitioner’s Hand-
book for Appeals states that “‘an en banc hearing or rehear-
ing is not favored and ordinarily will not be ordered unless
(1) en banc consideration is necessary to secure or maintain
uniformity of the court’s decision, or (2) the proceeding in-
volves a question of exceptional importance.’ Fed. R. App. P.
35(a).” The handbook goes on to state that "rehearings en
banc are designed to address issues that affect the integrity
of the circuit’s law (intra-circuit conflicts) and the develop-
ment of the law (questions of exceptional importance)." And
there is more: Rule 35(b)(1) requires a petition for rehearing
en banc to “begin with a statement that either: (A) the panel
decision conflicts with a decision of the United States Su-
preme Court or of the court to which the petition is ad-
dressed (with citation to the conflicting case or cases) and
consideration by the full court is therefore necessary to se-
No. 13-2115 11
cure and maintain uniformity of the court’s decisions; or (B)
the proceeding involves one or more questions of exception-
al importance, each of which must be concisely stated; for
example, a petition may assert that a proceeding presents a
question of exceptional importance if it involves an issue on
which the panel decision conflicts with the authoritative de-
cisions of other United States Courts of Appeals that have
addressed the issue.” The Advisory Committee’s Note to
Rule 35 also stresses intercircuit conflict as a basis for rehear-
ing en banc.
None of these criteria for rehearing en banc is satisfied in
this case or even mentioned by the dissent. Far from there
being either an intracircuit or an intercircuit conflict, a rever-
sal of the panel decision would create a circuit split with the
only other appellate decision to deal with the same issue:
Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir.
2009). Reversal also would create deep tensions with our de-
cision in Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir.
2012), and with the Supreme Court’s decision affirming it
unanimously, 134 S. Ct. 870 (2014). And rather than the type
of dispute between the parties to this case being exceptional-
ly troublesome, such disputes can be and usually are re-
solved in collective bargaining negotiations without generat-
ing litigation. A reversal might disrupt labor relations in a
variety of industries, besides poultry processing, by allowing
a class action suit to override arrangements agreed upon in
collective bargaining agreements. That would be to forget
Congress’s reasons for amending the Fair Labor Standards
Act (under which this suit was brought) in 1947: “Congress
finds that the Fair Labor Standards Act … has been inter-
preted judicially in disregard of long-established customs,
practices, and contracts between employers and employees,
12 No. 13-2115
thereby creating wholly unexpected liabilities, immense in
amount and retroactive in operation, upon employers.”
29 U.S.C. § 251. We would be upending long-standing prac-
tices of the Illinois Department of Labor as well.
A Westlaw search of Mitchell v. JCG Industries, Inc., 745
F.3d 837 (7th Cir. 2014) (the panel decision), reveals three ci-
tations to the decision, all of which distinguish it from the
citing cases. Castaneda v. JBS USA, LLC, 2014 WL 1796707, at
*3 (D. Colo. May 6, 2014); Abadeer v Tyson Foods, Inc., 2014
WL 1404836, at *12–13 (M.D. Tenn. Apr. 10, 2014); Jones v. C
& D Technologies, Inc., 2014 WL 1233239, at *7 n. 5 (S.D. Ind.
Mar. 25, 2014). A Google search reveals a number of refer-
ences to the panel decision (many critical of the “experi-
ment” conducted by court staff in that case regarding the
time it takes to don and doff the sanitary gear that poultry
workers are required to wear) but nothing to suggest that
the decision involves an issue of general importance. A
Google search of “donning and doffing” (and some variant
terms suggested at the bottom of the first Google page) re-
vealed only one reference to donning and doffing in the
poultry processing industry and nothing to suggest a con-
cern with donning and doffing at meal breaks.
In considering whether a case is appropriate for rehear-
ing en banc, a judge will generally look first at the grounds
suggested in the petition. The petition in this case lists two
issues that the class action lawyers who drafted it deem wor-
thy of en banc consideration: “1. Does the continuous work-
day doctrine have an exception that applies to the facts of
our case? And if so, what is the exception? 2. Should the
Court ignore the opinion of the Illinois Attorney General re-
garding an interpretation of an Illinois regulation on hours
No. 13-2115 13
worked, and instead rely upon an unpublished Illinois deci-
sion? Or should the matter be certified to the Illinois Su-
preme Court?” The dissent does not seek en banc rehearing
to resolve the second question. The first is fact-bound. No
one can deny that there are exceptions to the continuous
workday rule. The question is whether the poultry pro-
cessing donning/doffing time might be one. So far as ap-
pears, that is a question of limited significance.
The petition for rehearing is sloppy. Apart from numer-
ous mistakes, such as its assertion that the poultry workers
are minimum wage employees (as pointed out in the appel-
lees’ response, they are not—they are paid $9; the Illinois
minimum wage is $8.25), the main arguments in the petition
were made neither in the district court, nor in this court
when the case was briefed and argued to the panel. So there
is an ambush element.
The dissent doesn’t mention collective bargaining. That
is a critical omission. The income of the poultry processing
workers will be determined by collective bargaining, not by
our decision. Their income depends on their union’s bar-
gaining power vis-à-vis the employer. If any part of the meal
break is considered compensable time (despite the exemp-
tion, which I discuss below, of bona fide meal breaks--and
the plaintiffs don’t argue that the meal breaks in this case are
not bona fide), the employer can cut the total number of
hours of work to avoid having to pay overtime, or indeed
can eliminate meal breaks. For although Illinois law requires
meal breaks for shifts of 7.5 hours or more, the breaks need
not exceed 20 minutes, and the requirement does not apply
to workers, such as the workers in this case, who are subject
to a collective bargaining agreement. 820 ILCS 140/3. The
14 No. 13-2115
employer, if forced to compensate for time spent in doffing
and donning sanitary gear during meal breaks, could reduce
the wage to the minimum wage, or take other measures de-
signed to make sure that the workers have no greater income
than they now have, for that is the maximum income that
their union have been able to extract in collective bargaining
negotiations. Only class counsel would benefit from a judg-
ment or settlement. And by the way, meal breaks are a
common subject of collective bargaining (see Google refer-
ences to “Collective Bargaining Over Meal Breaks”); the va-
lidity of those agreements could be placed in doubt by a re-
versal of the panel decision. As the appellees’ response to the
petition for rehearing points out, “it would be absurd to al-
low CBAs [collective bargaining agreements] to exclude
donning and doffing time when arriving at and leaving the
work site, but prohibit those same CBAs from doing the same
thing as to the same activity by the same employees at the be-
ginning and end of the lunch break” (emphases in original).
The dissent does not respond to this point.
Instead it accuses the panel decision of rejecting the con-
cept of the “continuous workday.” It says that “Congress has
spoken and decided what should or should not be subject to
collective bargaining: those periods donning and doffing at
the ‘beginning or end of each’ continuous workday are sub-
ject to collective bargaining; those periods during the con-
tinuous workday are not. 29 U.S.C. § 203(o). The majority’s
fracturing of the workday now calls into question the very
existence of the ‘continuous workday’ doctrine, since there is
nothing continuous about the workday as the majority de-
No. 13-2115 15
scribes it.” The dissent cites two district court cases that ac-
cept the doctrine. Of course they accept the doctrine, as does
the panel decision. It is announced in a Department of Labor
regulation in force since 1947 and accepted as valid, 29
C.F.R. § 790.6(b); it is repeated in the Supreme Court’s deci-
sion in IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (2005), and numer-
ous other decisions besides the two district court cases cited
by the dissent. But the dissent misses a vital point: the term
“workday” means “in general, the period between the com-
mencement and completion on the same workday of an em-
ployee’s principal activity or activities.” The phrase that I’ve
italicized, which is from the regulation and is paraphrased
by the Supreme Court as “generally” in IBP, Inc. v. Alvarez,
supra, 546 U.S. at 29, allows for exceptions from the continui-
ty requirement. “Workday” needn’t always mean the entire
interval between the worker’s arrival at work at the begin-
ning of the day and his departure for home at the end of the
day. Suppose a family hires a nanny to come to its home at 7
a.m. and remain till 9 a.m., to get the kids ready for school;
and to return at 3 p.m. and remain till 8 p.m. in order to take
care of them after school and feed them and put them to bed.
Her workday is not 13 hours (7 a.m. to 8 p.m.), but rather 7
hours (7 to 9 and 3 to 8). Similarly, the poultry workers in
this case work an 8 hour day, not an 8½ hour day. The lunch
break breaks up their workday.
The dissent takes a “plain language” approach to the
workday regulation, but fails to note that “in general” is part
of that plain language, and has to be given meaning. In rec-
ognizing an exception, the panel decision was not violating
the regulation.
16 No. 13-2115
The workday issue is only one of three grounds of the
panel decision. Another—and the most straightforward—is
that bona fide meal breaks are excluded from work time. 29
C.F.R. § 785.19; Sepulveda v. Allen Family Foods, Inc., supra,
591 F.3d at 217 n. 4 (“lastly, the employees seek compensa-
tion for the time they spend during their lunch breaks don-
ning and doffing a few items, washing, and walking to and
from the cafeteria. This time is non-compensable, however,
because it is part of a bona fide meal period”). The regula-
tion I just cited states that a meal break ceases to be “bona
fide” when “an office employee who is required to eat at his
desk or a factory worker who is required to be at his ma-
chine is working while eating.” The poultry workers in our
case do not eat while working. It is true that section 203(o)
makes no reference to lunch breaks, but the reason is that the
Fair Labor Standards Act does not require lunch breaks, so
naturally doesn’t specify exclusion of clothes-changing time
during such breaks.
So clear is this ground for rejecting the plaintiffs’ claim
that if we were to grant rehearing en banc and reverse, the
district court would have no choice but to reinstate its judg-
ment.
The third alternative ground for affirming the district
court is what the panel decision called the “de minimis” char-
acter of the doffing and donning, a term for which the Su-
preme Court in the Sandifer opinion substituted “minimal”
while affirming our decision, notwithstanding the disagree-
ment over nomenclature—a trivial disagreement. I have dif-
ficulty understanding the dissent’s discussion of the issue.
The dissent states that in Sandifer
No. 13-2115 17
the employees argued that twelve items of clothing
were donned and doffed and such time was compen-
sable. The Supreme Court ultimately found that three
of the items were not actually clothing. Rather than
figure out which portion of the donning and doffing
time was compensable and which was not, the Su-
preme Court wrote off the time putting on and taking
off the non-clothing items so long as the entire period
“on the whole” was fairly characterized as “time spent
in changing clothes or washing” (emphasis in origi-
nal). In other words, where there is an intermingling
between clothes and nonclothes item[s] during the
donning and doffing period, the court need not be a
“time study professional[]” and determine which por-
tion relates to clothing and which does not; so long as
the period “on the whole” can be characterized as
donning and doffing non-clothes, it is compensable.
However, this does not change the Supreme Court’s
statement that the entire donning and doffing period
cannot be written off as de minimis since, as the Court
stated, 203(o) is all about such “trifles.” Yet that is ex-
actly what the majority does, writing off the entire pe-
riod as de minimis. [Emphasis in original; citations
omitted.]
I understand neither the reference to “trifles” in the Su-
preme Court’s opinion nor the use made of the term in the
dissent from our denial of rehearing en banc. Section 203(o)
allowed the parties in Sandifer to exclude donning and doff-
ing time from compensable time but only donning and doff-
ing of clothing. The workers in Sandifer, who were steel-
workers, were required to don and doff not only clothing
but certain protective equipment, such as a helmet and gog-
18 No. 13-2115
gles. Such equipment is not clothing, and so the time taken
in donning and doffing would be—one might have
thought—compensable time. But because there were very
few protective items in comparison to the amount of work
clothes that the steelworkers were required to wear, the
Court decided that the time required to don and doff the
protective equipment could be ignored—a result consistent
with what the panel ruled in the present case. Donning and
doffing protective equipment just wasn’t a big deal; in this
case donning and doffing sanitary gear during the lunch
break is likewise not a big deal.
A practical point important both in Sandifer and the pre-
sent case, but ignored in the dissent, is that it is infeasible to
determine the time it takes to doff and don, because every
worker will don and doff at a different rate unless monitored
by supervisors, which would be a cost borne ultimately by
the workers. Such monitoring would also be obnoxious—
imagine supervisors shouting “you have 20 seconds to finish
putting on the last item of your sanitary gear!”
One point remains to be considered, as it figures not only
in the petition for rehearing en banc and in the dissent from
the denial of rehearing en banc but also in some of the online
commentary on the panel decision. The petition denounces
the experiment conducted by “unidentified members of the
judiciary” (these villains are my law clerks and I), which it
states violates due process and the Federal Rules of Civil
Procedure. As the panel decision explains, the information
produced by the experiment was not “evidence,” was not
“appellate factfinding,” but was the fruits of curiosity re-
garding the appellants’ implausible (in fact unbelievable)
contention that it takes 15 minutes to don a few items of pro-
No. 13-2115 19
tective clothing. Although called “changing clothes,” the
donning and doffing by these poultry workers involve not
changing clothes but just putting some items of protective
clothing, like an apron and a hair net, on top of one’s street
clothes, and removing the same items. No way can that take
15 minutes.
We are required to affirm a grant of summary judgment
when “no reasonable jury” would have credited the appel-
lants’ contentions. Nunez v. BNSF Railway Co., 730 F.3d 681,
685 (7th Cir. 2013). The panel considered this the situation
with regard to the plaintiff’s contentions about the time re-
quired for donning and doffing. The plaintiffs must agree,
because they change their allegations in the petition for re-
hearing, arguing for the first time that they have to store the
protective clothing for reuse, travel to a sink, and wait in line
to wash. In the district court the only act they claimed took
10 to 15 minutes was putting on the sanitary gear (which
they call, misleadingly in light of Sandifer, “protective
equipment’). “It typically took [they alleged in a Statement
of Additional Fact] ten (10) to fifteen (15) minutes to proper-
ly don the protective equipment.” Not taking off and putting
on—just putting on. As the lead plaintiff, Rochell Mitchel,
stated in an affidavit attached to her opposition to the de-
fendants’ motion for summary judgment, “once I receive the
PPE [‘personal protective equipment’—what I’ve been talk-
ing about] it takes approximately 10-15 minutes to put all of
the gear on properly” (“put on,” not “put on and take off”).
The complaint makes no mention of “instrument washing”
or “walking time” and the district judge noted that the first
mention of such claims was in a footnote in the plaintiffs’
response to summary judgment—and was thus forfeited (a
critical point overlooked by the dissent). Apparently the
20 No. 13-2115
plaintiffs accepted his ruling, because they didn’t challenge
it in their appeal briefs. Now they concede (maybe without
realizing this) that no, those acts alone don’t add up to 10 to
15 minutes. It’s those acts plus additional ones that do.
The dissent quotes plaintiff Mitchell’s claim that it takes
her “5–6 minutes” to walk to lunch and doff her gear. That
statement is doubly problematic: there is no claim that walk-
ing time needs to be compensated, and Mitchell does not say
how much of the alleged 5 to 6 minutes is spent walking. She
says “it took … (presumably) the same 5–6 minutes to don
the clothing during the lunch break.” But remember that her
affidavit stated that it took her 10–15 minutes to put on the
gear at the start of the day. She does not explain why it
should take so much less time during the lunch break. May-
be a sympathetic jury would brush aside these contractions,
but no reasonable jury could believe her testimony, and that is
the standard.
The district judge based his summary judgment decision
on the factual claims made by the parties, including the ob-
viously fantastic claim (now implicitly conceded to be false)
that donning alone takes 15 minutes. Further confusing the
issue, the petition for rehearing states that doffing and don-
ning “indisputably consumes between … two to over 15
minutes” (emphasis added)—a concession that underscores
the infeasibility of actually measuring these times for pur-
poses of determining how much additional wages the work-
ers are entitled to under the petitioners’ theory. Will some
workers get 2 minutes of overtime pay a day and others 20
(remember “over 15 minutes”)? Who will keep track of these
times? How will dawdling be monitored and prevented?
No. 13-2115 21
As the appellees point out, the statement in the petition
for rehearing that “over 50 percent of the entire meal break”
is spent in changing clothes and washing is not only ridicu-
lous and unsupported by any citations to the record, but if
true would mean that the meal break was not bona fide. In
that event the employees would be entitled to compensation
for the entire break, not just the time taken in changing and
washing—and that is not argued. Mitchell attested that it
took her only five or six minutes to walk from her work sta-
tion to the changing area and remove her protective cloth-
ing. And walking and washing time are not even part of the
appellants’ claim.
I am puzzled finally by the dissent’s remark that “how
long it took to don and doff was an issue of fact that should
have been decided by a jury.” My puzzle is: how is such a
fact to be determined by a jury? Suppose one worker testifies
(as per Mitchell’s affidavit) that it takes 10 to 15 minutes to
don and doff, and another (one aligned with management,
for remember that the exclusion of donning and doffing time
from compensable time was by agreement between union
and management) testifies it takes 2 minutes. How is a jury
to decide between them? Probably the most accurate way to
resolve the dispute would be, on the model of the criticized
experiment by court staff, to videotape workers doffing and
donning. The problem is that the workers aligned with the
plaintiffs would dawdle, and the workers aligned with man-
agement would practice doffing and donning until they
broke the speed record. What would the jury do? This is
somewhat to the side of the issue of the case, but illustrates
the important point that determining facts in a litigation can
be devilishly difficult if one thinks accuracy important.