Pirant, Antoinette v. Postal Servic

Filing 28

Opinion

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604 December 3, 2008 Before WILLIAM J. BAUER, Circuit Judge RICHARD D. CUDAHY, Circuit Judge DIANE S. SYKES, Circuit Judge

No. 071055 ANTOINETTE PIRANT, PlaintiffAppellant, v. UNITED STATES POSTAL SERVICE, DefendantAppellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 9383 Joan Humphrey Lefkow, Judge.

O R D E R Based on the petition for panel rehearing filed on November 3, 2008, by Defendant Appellee United States Postal Service, the panel opinion issued on September 4, 2008, is hereby modified as follows: ! Footnote number 2 on page 12 of the slip opinion is deleted. ! Pages 12 and 13 of the slip opinion are modified to delete the full paragraph that begins "In Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir. 2007) . . ." and to remove certain text from the final two paragraphs of the opinion. Pages 12 and 13 now read: noted, however, that "changing clothes and showering under normal conditions" generally would not be compensable. Id. at 332; see also 29 C.F.R. § 790.7(g) ("[o]ther types of activities which . . . would be

No. 071055

Page 2 considered `preliminary' or `postliminary' activities, include . . . changing clothes, washing up or showering"); Reich v. IBP, Inc., 38 F.3d 1123, 1126 n.1 (10th Cir. 1994) (requiring employees to put on safety glasses, earplugs, and a hard hat "is no different from having a baseball player show up in uniform, a businessperson with a suit and tie, or a judge with a robe"); Anderson v. Pilgrims Pride Corp., 147 F. Supp. 2d 556 (E.D. Tex. 2001) (donning of aprons, smocks, gloves, boots, hairnet, and earplugs not compensable). Here, Pirant was not required to wear extensive and unique protective equipment, but rather only a uniform shirt, gloves, and work shoes. The donning and doffing of this type of work clothing is not "integral and indispensable" to an employee's principal activities and therefore is not compensable under the FLSA. It is, instead, akin to the showering and changing clothes "under normal conditions" that the Supreme Court said in Steiner is ordinarily excluded by the Portalto 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 hoursofservice total for purposes of the FMLA. AFFIRMED.

The petition for rehearing is otherwise denied.