### 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

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R OCHELLE M ITCHELL , et al., individually and on behalf of all others similarly situated

, Plaintiffs

- Appellants

,

v.

J CG I NDUSTRIES , I NC ., and
K OCH F OODS , I NC

. , Defendants

- Appellees

.

____________________2 No. 13

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 10 C 6847

— Robert M. Dow, Jr

., Judge

.

____________________

O R D E R
On April 1 , 2014, plaintiffs

- appellants filed a petition for r ehearing and for rehearing en banc , and on April 17, 2014, defen dants

- 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 p etition. 1

The petition is therefore DENIED.

1 Chief Judge Wood, Judge Rovner, Judge Williams and Judge Ha m ilton voted to grant the petition for rehearing en banc

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W ILLIAMS , Circuit Judge , with whom W OOD , Chief Judge

, and R OVNER and H AMILTON , 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 rehe aring, this case should have been heard en banc because the majority opinion calls into question the a pplication of the “continuous workday” doctrine of the Fair Labor Standards Act (“FLSA”), erroneously applies de min imis analysis to the FLSA in contraven tion 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 colle ctively 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 ac tivities .” 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 L abor’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 du ring the start of the lunch break is actually at the4 No. 13

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end of the first four

- hour workday, and any time donning clothes at the end of the lunch break is actually at the begi nning 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 bre ak b etween 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, b ecause this case presents a “compelling reason to recognize an exception” to the c ontinuous 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 “c ontinuous workday” doctrine going forward. U nder the doctrine , workers must be compensated for time they spend doing what might otherwise be non

- compensable a ctivities 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 pe rfo rmed after [her first integral and indispensable work acti vities] would be covered by the ‘continuous workday rule’”
and quoting 29 C.F.R. § 790.6); see also Alvarez v. IBP, Inc. , 339No. 13

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F.3d 894, 907 (9th Cir. 2003) (noting the workday is “contin uous, 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 (e xcluding bona fide lunch breaks from “work time”). 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 acti vities, and twice completed her principal activities, all b etween 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 major ity’s reasoning will spell the end of the “continuous wor kday” doctrine, which courts around this circuit have relied upon in deciding cases, and will allow employers to negot iate away otherwise compensable time. See, e.g., Harris v. Rel iable Reports Inc. , No. 13

- cv

- 210, 2014 U.S. Dist. LEXIS 31223,
at *13

- 14 (N.D. Ind. March 10, 2014) (denying motion to di smiss based on continuous workday doctrine); Espenscheid v. Directstat USA, LLC, No. 09

- cv

- 625, 2011 U.S. Dist. LE XIS 154706, at ** 68

- 70 (W.D. Wis. April 11, 2011) (denying su mmary judgment on continuous workday FLSA claim). Co ngress has spoken and decided what should or should not be subject to collective bargaining: those periods donning and doffing at the “ beginni ng or end of each ” continuous wor kday are subject to collective bargaining; those periods during the continuous workday are not. 29 U.S.C. § 203(o). The m ajority’s fracturing of the workday now calls into question the very existence of the “continuous work day” doctrine, since there is nothing continuous about the workday as the major

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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 conve ntional 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 perio d 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 m ajority 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, di strict courts, emplo yers and employees are likely to be co nfused 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 “excepti on” to the “general” definition, but another case not the “exception”? This “exception” is likely to create confusion in both the a dministration of law

— since district courts are now faced with the Supreme Court precedent adopting the “continuous workday” d octrine, IBP, Inc., 546 U.S. at 29 , and precedent by our court rejecting its application

— and the collective ba rgaining process. See, e.g., Abadeer, 2014 U.S. Dist. LEXIS 50528, at *46 n.4 (discussing Mitchell and stating “[t]his ne wly discovered ‘exception ,’ then, presumably applies to all un

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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 maj ority’s decision calls i nto 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 major ity holds that its conclusion is suppor ted, in the alternative, by the fact that such donning and dof fing 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 fo r 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 re latively insignificant periods of time in which employees wash up and put on va rious 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 mini mis do ctrine 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 a rgued 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 compe nsable and which was not, t he 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

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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 dete rmine 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 m ajority does, writing off the entire period as de minimis

. Mitc hell , 745 F.3d at 843. I am concerned that a district court faced with a donning and doffing ca se will not know whether it should apply the de minimis standard and follow the major ity’s opinion, or whether it should follow the Supreme Court’s precedent. This conflicting precedent creates conf usion and will disrupt the “uniformity of the court’s dec isions,” 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 d id 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 pr esumab ly) 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 em ployees, those 10

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add up to 50

- 60 minutes per week. Even if de minimis anal ysis were appropriate here, that is not de minimis time. B y e xplicitly rejecting Appellant’s affi davit and accepting the e mployer's time estimation ( and confirm ing that with a court staff “ experi ment”), 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 favo rable 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 rehea ring en banc.

P OSNER , Circuit Judge , concurring in denial of rehearing en banc. Published opinions dissenting from denials of r eheari ng 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 r ehearing 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. B efore beginning work in the morning the workers put on a sterilized jacket, plastic a pron, cut

- resistant gloves, plastic sleeves, earplugs, and a hairnet. They are required to remove this sanitary10 No. 13

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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 du ring 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 c ase en banc, precipitating the di ssenting 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 th e 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 in clude: “ I disagree with the panel major ity.” The Seventh Circuit’s P ractitio ner’s Han dbook for Appeals states that “‘an en banc hearing or rehea ring 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 i nvolves 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 devel o pment of the law (questions of exceptional impor tance)." And
there is more: Rule 35 (b) (1) requires a petition for rehear ing en banc to “ begin with a statement that either: (A) the panel decision conflicts with a decision of the United States S upreme Court or of the court to which the petition is a ddressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to se

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c ure and maintain uni formity of the court’ s decisions; or (B) the proceeding involves one or more questions of exceptio nal 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 t he authoritative d ecisions of other United States Courts of Appeals that have
ad dressed the issue.” The Advisory Commi ttee’ s Note to Rule 35 also stress es intercircuit conflict as a basis for rehea ring 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 reve rsal of the panel decision would create a circuit split with the only other app ellate 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 d ecision 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 exceptiona lly troublesome, such disputes can be and usually are r esolved in collective bargaining negotiations wit hout genera ting 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
C ongress’s reasons for amending the Fair Labor Standards Act (under which this suit was brought) in 1947: “C ongress finds that the Fair Labor Standards Act

... has been inte rpreted judicially in disregard of long

- established customs, practices, and contracts between employers and employees,12 No. 13

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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 pra ctices 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 c itations 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 refe rences to the panel decisio n (many critical of the “exper iment” 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 import ance. A Google search of “ donning and doff ing” (and some variant

term s suggested at the bottom of the fir st Google page) r evealed only one reference to donning and doffing in the poultry processing industry and nothing to suggest a co ncern with donning and doffing at meal breaks.
In considering whether a case is appropriate for rehea ring 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 wo rthy of en banc considera tion: “ 1. Does the continuous wor kday 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 r egarding an interpretation of an Illinois regulation on hoursNo. 13

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worked, and instead rely upon an unpublished Illinois dec ision? Or should the matter be certified to the Illinois S upreme Court?” The dissent does not seek en banc rehearing
to resolve the second ques tion. The first is fact

- bound. No one can deny that there are exceptions to the continu ous workday rule. T he question is whether the poultry pr ocessing donning/doffing time might be one

. So far as a ppears, that is a question of limited significance

. The petition for rehearing is sloppy. Apart from nume rous mistakes, such as its assertion that the poultry workers are minimum wage employees (as pointed out in the appe llees’ response, they are n ot

— 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. T he income of the poultry processing workers will be determined by collective bargaining, not by
our decision. Their income depends on their union’ s ba rgaining power vis

- à

- vis the employer. If any part of the meal break is considered compensable time (despite the exem ption , 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 f or shifts of 7.5 hours or more, the breaks need not exceed 20 minutes, and the req uirement does not apply to workers, such as the workers in this case, who are subject

to a collective bargaining agreement. 820 ILCS 140/3. The14 No. 13

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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 d esigned 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

n egotiations . Only class counsel would benefit from a jud gment or settlement. And by the way, meal breaks are a common subject of collective bargaining (see Google refe rences to “Collective Bargaining Over Meal Breaks”); the v alidity of those agreements cou ld be placed in doubt by a r eversal of the panel decision. As the appellees’ response to the petition for rehearing points out, “it would be absurd to a llow CBAs [collective bargaining agreements] to exclude donning and doffing time when arriving at and le aving the work site, but prohibit those same CBAs from doing the same thing as to the same activity by the same employees at the b eginning 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 co ncept 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 doffi ng at the ‘ beginning or end of each ’ continuous workday are su bject to collective bargaining; those periods during the co ntinuous workday are not. 29 U.S.C. § 203( o ). The majority’s fracturing of the workday now calls into question the very existence of th e ‘continuous workday’ doctrine, since there is nothing continuous about the workday as the majority de

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scribes it. ” The dissent cites two district court cases that a ccept 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 dec ision in IBP, Inc. v. Alvarez , 546 U.S. 21, 29 (2005), and nume rous other decisions besides the tw o district court cases cited by the dissent. But the dissent misses a vital point: the term “workday” means “ in general , the period between the co mmencement and completion on the same workday of an e mployee’s principal activity or activities.” The phrase t hat 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 continu ity requirement. “Workday” needn’t always mean the entire interval between the worker’s arrival at work at the begi nning 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 retur n 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 h our day, not an 81⁄2 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 ha s to be given meaning. In re cognizing an exception, the panel decision was not violating the regulation.16 No. 13

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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 f rom 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 compens ation for the time they spend during their lunch breaks do nning and doffing a few items, washing, and walking to and
f rom the cafeteria. This time is non

- compensable, however, because it is part of a bona fide meal period ”). The regul ation 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 factor y worker who is required to be at his m achine 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 no t 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 jud gment. The third alternative ground for affirming the district court is what the panel decision called the “ de minimis ” cha racter of the doffing and donning, a term for which the S upre me Court in the Sandifer opinion substituted “minimal” while affirming our decision, notwithstanding the disagre ement over nomenclature

— a trivial dis agreement . I have di fficulty understanding the dissent’s discussion of the issue

. The dissent states that i n SandiferNo. 13

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the employees argued that twelve items of clothing were donned and doffed and such time was compe nsable. The Supreme Court ultimately found that three of the items were not actually clothing. Rather than figure out which portion of the donning a nd doffing time was compensable and which was not , the S upreme 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 orig inal). 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 po rtion relates to clothing and wh ich 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 d e minimis since, as the Court stated, 203( o ) is all about such “trifles.” Yet that is e xactly what the majority does, writing off the entire p eriod as de minimis . [Emphasis in original; citations omitted.]

I understand neither the reference to “trifles” in the S upreme 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 dof fing time from compensable time bu t only donning and dof fing of clothing. The workers in Sandifer , who were stee lworkers, were required to don and doff not only clothing but certain protective equipment, such as a helmet and gog

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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 d on 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 pr esent 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 u nless 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 f rom the denial of rehearing en b anc 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 R ules 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 r egarding the appellants’ implausible (in fact unbelievable)
contention that it takes 15 minutes to don a few items of pro

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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 appe llants’ 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 r equired for donning and doffing. The plaintiffs must agree, because they ch ange their allegations in the petition for r ehearing, 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 wa s 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 prope rly 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 d efendants’ motion for summary judgme nt, “o nce I receive the PPE [ ‘ personal protective equipment ’

— what I’ve bee n ta l king about] it takes approximately 10

- 15 minutes to put all of the gear on prop erly ” (“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 suc h claims was in a footnote in the plaintiffs’
response to summary judgment

— and was thus forfeited (a critical point overlooked by the dissent). Apparent ly the20 No. 13

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plaintiffs accepted his ruling, because they didn’t challenge it in their appeal brief s. 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 g ear. That statement is doubly problematic: there is no claim that wal king 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 d on 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. Ma ybe 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 o bviously 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 do nning “indisputably consumes between ... two to over 15 minutes” (emphasis added)

— a concession that underscores the infeasibility of actually measuring these times for pu rposes of determining how much additional wages the wor kers 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

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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 ridic ulous 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 st ation to the changing area and remove her protective clot hing. And walking and washin g 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 jur y? 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 betwe en 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 ma nagement 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 th e case, but illustrates the important point that determining facts in a litigation can be devilishly difficult if one thinks accuracy important.