In Pirant v. United States Postal Service, — F.3d —-, 2008 WL 4072817 (C.A.7 (Ill.)), a Postal Service employee fell just short of FMLA eligibility having worked 1248.8 hours in the previous 12 month period leading up to her absence. She searched high and low for those 1.2 hours but the Seventh Circuit ruled her ineligible.

Antoinette Pirant began employment with the United States Postal Service in 1993 as a mail handler. She experienced a string of good luck as she was terminated four times from her job with the USPS, in 1994, 1995, 1999, and 2000, but she was able to persuade her superiors to reduce the termination to a suspension on each occasion.

In March 2001, Pirant was able to avoid termination yet again by agreeing to a written “last chance” agreement which 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 reissuance of a Removal. It is further understood that this settlement agreement constitutes an absolute last chance to remedy any conduct and attendance problems.”


Despite the last chance agreement , Pirant was absent without excuse on both August 14, 2001 and September 25, 2001. On September 28, the USPS provided her with a 30-day notice of termination. Pirant persuaded one of her supervisors to hold the notice of termination in abeyance until December 10 which meant that the termination was merely delayed and not rescinded.

Pirant continued with her scofflaw ways and on October 5, 2001, her supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant did as she was told and clocked out two hours early and went home for the day. She later complained to Darrow Andrews, a Postal Service Dispute Resolution Specialist. Andrews investigated the incident and interviewed both Pirant and her supervisor.

At 10 p.m. on December 5, 2001 (5 days prior to her termination date), Pirant called in to work and indicated that she could not make it to her shift. Pirant did not report to work on December 6. She did return to work the following day and told her supervisor that she had not been feeling well. Pirant did visit the emergency room on December 10 and was examined for carpal tunnel syndrome and arthritis in the knee. The hospital doctors directed her not to work from December 10 to December 17. The Postal Service received these reports on December 14.

On December 21, Andrews, the Postal Service Dispute Resolution Specialist, informed Pirant that she had the right to file a formal grievance for restoration of back pay if she believed that she had been wrongfully ordered to clock out two hours early on October 5. Pirant had a 15 day window in which to do so but did not meet the deadline.

Pirant’s tenure with the USPS finally came to an end on January 4, 2002 when the USPS fired her for violating the last chance agreement. Pirant then went on the offensive. On January 8, she submitted a note from a doctor indicating the she had been absent on December 5 (not December 6) because of her arthritic knee. She also submitted an absentee form filled out by an employee who had answered her absentee call on December 5. Pirant added to that form that the reason for her absence was because of “arthritis in knee.” On January 23, she filed a formal complaint and request for back pay concerning the October 5 clock-out incident. On that issue, Andrews ruled that she had missed her deadline and denied her complaint. Pirant did not appeal this ruling. She did file a grievance concerning her termination which was also rejected.

Pirant then moved her dispute with the USPS to federal court. She filed a complaint alleging that the Postal Service had violated the Family and Medical Leave Act by terminating her as a result of her missing work on December 6 because of her arthritic knee. The USPS responded in its initial answer by indicating that Pirant had worked the required 1250 hours in the 12 months preceding her December 6 absence. After checking Pirant’s work records, the USPS moved for leave to file an amended answer denying that allegation.

The Postal Service then moved for summary judgment arguing that Pirant had not worked the requisite 1250 hours in the 12 months leading up to her unscheduled absence and was therefore ineligible for FMLA coverage. In support of its motion, the Postal Service submitted Pirant’s biweekly payroll records reflecting her work-hour totals for that 12 month period. For that time period, Pirant’s payroll records indicated that she had worked 1248.8 Paid Hours and 1249.8 TACS Hours (referring to the Postal Service’s time clock system).

The district court granted summary judgment to the Postal Service based on the evidence showing that Pirant had not worked the 1250 hours in the12 months leading up to her absence. Pirant made a number of arguments in an effort to fight off summary judgment. She argued that the conflict between the Postal Service’s first and amended answers should entitle her to a trial. She contended that the difference between the Paid Hours and the TAC Hours created a genuine issue of material fact for trial. The district court found that the TAC Hours represented the hours clocked on the Postal Service’s time clock system and were later converted to Paid Hours according to regular and overtime pay categories. In the end, Pirant did not produce any evidence to contest the accuracy of either hours total.

At the summary judgment stage, Pirant claimed that the two hours lost as a result of the clock-out incident should be counted in her hourly totals. The district court determined that this was only a subjective belief on the part of Pirant and did not warrant a trial. Pirant argued that the time spent putting on her gloves, uniform shirt and shoes should be included in her hourly total as well. The district court held that this time was not compensable under the Fair Labor Standards Act (“FLSA”) and was therefore not counted in the calculation of her hours of service under the FMLA. Finally, the district court refused to excuse her failure to meet the 1250 hour requirement as de minimus. Pirant brought several of these arguments to the appeals court attention as well.

As to Pirant’s hope that differences in the first and amended answers would warrant a new trial, the appeals court succinctly stated: “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.”

Pirant pointed to another Postal Service discrepancy – the difference between the TAC Hours and the Paid Hours totals – as grounds for trial. The court of appeals accepted the district court’s explanation that TAC Hours refer to hours clocked and Paid Hours reflect
a reconciliation of TAC Hours according to “regular” and “overtime” categories of pay. In essence, there was no discrepancy between the two totals.

Pirant then focused on the alleged wrongful two hour suspension and claimed that those hours should be counted towards her FMLA eligibility total. For support, Pirant relied upon Ricco v. Potter, 377 F.3d 599 (CA 6 2004). In that case, a terminated Postal Service employee grieved his termination and won reinstatement and a make-whole order from the arbitrator. That employee later applied for FMLA leave. The Sixth Circuit determined that hours the employee likely would have worked but for her unlawful termination should be counted in the FMLA’s hours of service eligibility calculation. Pirant, however, never established that the clock-out incident resulted in a wrongful loss of hours as she never grieved the matter until well after the deadline. Having failed to do so, she lost the potential to later have these hours counted towards her FMLA eligibility.

The Seventh Circuit addressed Pirant’s most promising argument last. Pirant claimed that time spent putting on and removing her gloves, shoes and work shirt should be counted towards her total hours worked for the purpose of determining FMLA eligibility. In cases under the FLSA, the Supreme Court held that time spent on activities such as washing
up or changing clothes would be compensable only “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded” by the Portal-to-Portal Act. Steiner v. Mitchell, 350 U.S. 247, 256 (1956). In Steiner, the Court held that a battery manufacturer must pay its employees for time spent putting on protective clothing and bathing at the factory because those activities were indispensable to the employees’ health and safety. The Court also remarked that changing clothes and showering would not generally be compensable under normal circumstances.

The Seventh Circuit found Pirant’s donning and doffing of a work shirt, gloves and work shoes was not akin to putting on safety equipment integral and indispensable to an employee’s principal activities. Instead, it was similar to the showering and changing of clothes under normal conditions which is not compensable under the FMLA and not included in an hours total calculation under the FMLA.

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