Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 9383-Joan Humphrey Lefkow, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, CUDAHY, and SYKES, Circuit Judges.
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 preceding 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 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 non-compensable under the Fair Labor Standards Act, 29 U.S.C. § 254(a)(2), and is excluded from her FMLA hourly total.
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, how-ever, 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 agree-ment 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, 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*fn1 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 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 ...