In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-1055

ANTOINETTE PIRANT,

v. Plaintiff-Appellant,

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

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

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ARGUED OCTOBER 23, 2007—DECIDED SEPTEMBER 4, 2008

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Before BAUER, CUDAHY, and SYKES, Circuit Judges.

SYKES, 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 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 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 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 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 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
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 excluded 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, 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” agreement. 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,
4 No. 07-1055

The supervisor denied that he ordered Pirant to clock out, 1

suggesting that she just left early. On summary judgment,

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

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.

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. Pirant

1

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 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—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
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 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.
6 No. 07-1055

Later, however, the district court granted the Postal Service’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 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
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 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.

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 employees 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 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-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 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 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 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.
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 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

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 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 compensation 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-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).

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 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

employed and are not specifically excluded” by the Portalto-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

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

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.

noted, however, that “changing clothes and showering

under normal conditions” generally would not be compensable. Id. at 332. 2

In Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594

(2d Cir. 2007), the Second Circuit held that the donning of

a minimal amount of nonunique safety clothing, such

as helmets, goggles, and steel-toed boots, is not compensable under the FLSA. Though this safety clothing was

required by the employer in Gorman, the court held that

the de minimis time spent “donning and doffing [ ] such

generic protective gear is not different in kind from the

‘changing clothes and showering under normal conditions,’ which, under Steiner, are not covered by the FLSA.”

Id. (quoting Steiner, 350 U.S. at 249). The court distinguished 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.
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.

AFFIRMED.

9-4-08