In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1221
S USAN K ELLAR,
Plaintiff-Appellant,
v.
S UMMIT S EATING INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-cv-00464—Christopher A. Nuechterlein, Magistrate Judge.
A RGUED JUNE 3, 2011—D ECIDED D ECEMBER 14, 2011
Before E VANS and W ILLIAMS, Circuit Judges, and
C ONLEY, District Judge.
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
The Honorable William M. Conley, Chief Judge of the
United States District Court for the Western District of Wiscon-
sin, sitting by designation.
2 No. 11-1221
W ILLIAMS, Circuit Judge. Susan Kellar contends that she
is entitled to overtime under the Fair Labor Standards
Act for work performed prior to the official start of her
work shift. The district court granted summary judgment
in favor of her employer, Summit Seating, because it
found that Kellar’s pre-shift activities were “preliminary,”
that any work Kellar performed before her shift was
“de minimis,” and that Summit did not know that Kellar
was engaging in pre-shift work. While we disagree
with the district court’s conclusions regarding the “pre-
liminary” and “de minimis” nature of Kellar’s pre-shift
work, we affirm because we conclude that Summit did
not know or have reason to know that Kellar was
working before her shift.
I. BACKGROUND
Summit Seating (“Summit”) is a small company that
manufactures seating for buses, trucks, and vans. In
2001, Susan Kellar began working for Summit as a
cutter’s helper, and in 2004 she was promoted to sewing
manager. In that capacity, she was responsible for sup-
plying sewers with their sewing products, tracking sup-
plies, ensuring that work was completed on schedule,
and training junior employees. Kellar managed between
seven and eight employees, and was paid on an hourly
basis.
In her deposition, Kellar claimed that she regularly
arrived at Summit’s factory between 15 and 45 minutes
before the start of her 5:00 a.m. shift. When she arrived
before or at the same time as her sister and co-worker,
No. 11-1221 3
Mamie Spice, Kellar spent about 5 minutes unlocking
doors, turning on lights, turning on the compressor, and
punching in on the time clock. Then she prepared coffee
for the rest of Summit’s employees, which took her
about 5 minutes. Depending on her workload, she spent
5 to 10 minutes (or longer) reviewing schedules and
gathering and distributing fabric and materials to her
subordinates’ workstations, “so that they could go
straight to work, rather than waiting for [her] to bring
[fabric] to them.” For another 5 minutes, she drank
coffee and smoked a cigarette. The remaining time was
spent performing “prototype work” (preparing models
for production), cleaning the work area, or checking
patterns. According to Kellar, no one told her that she
needed to come in before her shift, but she arrived early
because it would have been “a hassle” to show up at
5:00 a.m. and still get her subordinates up and running
close to the start of their 5:00 a.m. work shifts. Kellar’s
time cards reflect that she often punched in early, although
on those days when she forgot to clock in, Kellar would
write the official start time of her shift on her time card.
Spice, who is still employed at Summit, tells a different
story. In an affidavit, Spice claimed that Kellar never
performed any work before the start of her shift. Rather,
after clocking in, she and Kellar would chat and drink
coffee until their shifts began.
Kellar acknowledged in her deposition that many
Summit employees would clock in early and socialize
until the start of their shifts. And on one occasion, at
her supervisor’s behest, Kellar reprimanded a sub-
4 No. 11-1221
ordinate for punching in too early. Nevertheless, Kellar
insists that, excluding a five-minute smoking and coffee
break, she spent her pre-shift time at Summit working,
not socializing.
If Kellar arrived early in order to work, her super-
visors, Ray and Sue Fink, who were the owners and the
president and vice-president of Summit, respectively,
never personally observed it. They typically arrived at
the factory after Kellar, between 7:00 and 8:00 a.m.
Kellar testified that she had a good relationship with
the Finks and felt “comfortable going to them with prob-
lems.” Kellar was also aware that Summit had a policy
(outlined in its employee handbook) requiring employees
to request pre-approval to work overtime. Even so,
Kellar never told the Finks that she was working before
the start of her shift. She also never reported errors with
her paychecks, requested overtime pay, or mentioned
during the weekly production meetings she attended
with the Finks that her schedule needed to be adjusted
to account for her pre-shift work.
In February 2009, Kellar voluntarily resigned and later
sued Summit, claiming that she was not paid overtime
wages in violation of the Fair Labor Standards Act
(“FLSA”). The district court granted summary judgment
in favor of Summit, finding that Kellar was not entitled
to overtime wages. This appeal followed.
II. ANALYSIS
The FLSA requires employers to pay overtime to
certain employees who work more than 40 hours in a
No. 11-1221 5
work week. 29 U.S.C. § 207(a). The employee bears the
burden of proving that she performed overtime work
for which she was not properly compensated. Anderson
v. Mt. Clemens, 328 U.S. 680, 686-87 (1946), superseded on
other grounds by statute, Portal-to-Portal Act of 1947, 29
U.S.C. §§ 251-262. The employer bears the burden to
establish that an exemption from the FLSA applies.
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97
(1974); Kennedy v. Commonwealth Edison Co., 410 F.3d 365,
370 (7th Cir. 2005). We review the district court’s entry
of summary judgment de novo, construing all facts
and inferences in the light most favorable to the non-
moving party. Cardoso v. Robert Bosch Corp., 427 F.3d
429, 432 (7th Cir. 2005).
A. Kellar’s Pre-Shift Activity Was Non-Preliminary
Work
The district court found that Kellar’s pre-shift activities
were non-compensable “preliminary” activities under
the Portal-to-Portal Act of 1947. The Portal-to-Portal Act,
in relevant part, amended the FLSA to eliminate
employer liability “on account of . . . activities which are
preliminary to or postliminary to [principal activities,]
which occur either prior to the time on any particular
workday at which such employee commences, or subse-
quent to the time on any particular workday at which
he ceases, such principal [activities].” 29 U.S.C. § 254(a).
As a threshold matter, Kellar contends that it was im-
proper for the district court to have considered
whether her activities were “preliminary” because
6 No. 11-1221
Summit did not make that argument in its motion for
summary judgment.
A district court may enter summary judgment sua
sponte on an issue not explicitly argued if the losing
party is on notice that she has to come forward with all
of her evidence. See Acequia, Inc. v. Prudential Ins. Co. of
Am., 226 F.3d 798, 807 (7th Cir. 2000). We agree with
Kellar that she was not “on notice” that the district
court would consider whether her activities were “pre-
liminary.” In its motion for summary judgment,
Summit only argued that it did not know that Kellar
was working overtime and that Kellar’s pre-shift work
was de minimis. Summit cited the Portal-to-Portal Act,
but it did not contend that Kellar’s activities were “prelim-
inary.” And the court did not apprise Kellar, before
it issued its order, that it was considering whether
Kellar’s activities were preliminary.
Kellar, however, does not argue that she would have
come forward with additional evidence had the court
given her notice. Instead, she seems to be arguing that
she was not given the opportunity to present argument
to the court. While we agree with Kellar that the court
should have given her notice and an opportunity to
brief the issue, “reversal is not required in every
instance of procedural shortfall. Instead, a litigant . . .
must show that notice and an opportunity to respond
would have mattered.” See Alioto v. Marshall Field’s & Co.,
77 F.3d 934, 936 (7th Cir. 1996). Because at this juncture
the parties have presented all of their evidence, and
Kellar has now had the opportunity to argue her case to
No. 11-1221 7
us, we shall consider whether the court erred in finding
that the Portal-to-Portal Act bars recovery in this case.
The Portal-to-Portal Act provides that activities that
are “preliminary” to principal activities are not com-
pensable. The Act does not purport to define “prelim-
inary” activities further. But the Supreme Court has
held that activities that are “an integral and indis-
pensable part of [an employee’s] principal activities,” are
not “preliminary,” but are also “principal activities,”
and are compensable even if they occur before the begin-
ning of an employee’s shift. See Steiner v. Mitchell, 350
U.S. 247, 253, 256 (1956).
Kellar testified that she began her day (after unlocking
doors and making coffee for employees) reviewing work
schedules and gathering and distributing fabric and
materials to her subordinates’ workstations. Such
activities are surely “integral and indispensable” to the
work that Kellar performed in her capacity as a sewing
manager, such as supplying sewers with their sewing
products, tracking supplies, and making sure that work
was completed on schedule. See IBP, Inc. v. Alvarez, 546
U.S. 21, 33 (2005) (activities which are “integral and
indispensable” to “principal activities” are themselves
“principal activities”). Work activities that Kellar per-
formed afterward would be covered by the “continuous
workday rule,” which provides that the Portal-to-
Portal Act does not apply “to the extent that activities
engaged in by an employee occur after the employee
commences to perform the first principal activity on
a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S.
at 29.
8 No. 11-1221
The district court reached a different conclusion
because it credited Mamie Spice’s affidavit to the
effect that Spice and Kellar spent their pre-shift time
socializing instead of working. The court acknowledged
that Kellar’s deposition testimony directly contradicted
Spice’s affidavit, but it did not accept Kellar’s version
of the events in question because Kellar “offer[ed] no
evidence other than her own testimony to support her
argument.” This was error. Absent a finding, not made
here, that the usual requirements for evidence at the
summary judgment stage were not met, evidence pre-
sented in a “self-serving” affidavit or deposition is
enough to thwart a summary judgment motion. Payne
v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). Kellar’s deposi-
tion testimony created a factual dispute, and the court
was not free to resolve it in Summit’s favor. See
McAllister v. Price, 615 F.3d 877, 884 n.1 (7th Cir. 2010)
(“Given the evidence on both sides, [there] are factual
disputes [that are] not amenable to resolution on sum-
mary judgment.”).
On appeal, Summit argues that the district court
properly disregarded Kellar’s testimony because it was
inconsistent and conclusory. But Kellar discussed her pre-
shift activities in a fair amount of detail. And any incon-
sistencies in her testimony were minor. For example,
Summit faults Kellar for first testifying that she
regularly arrived between 30 and 45 minutes before her
shift, but then acknowledging that she also sometimes
arrived 15 minutes early and sometimes arrived late.
There is no serious inconsistency in this testimony.
Kellar worked for Summit for eight years. It is under-
No. 11-1221 9
standable that she would have arrived late on some
occasions during her eight-year tenure. When Kellar
was confronted with the possibility that she might have
arrived later on some occasions, she corrected herself.
This correction does not necessarily mean that she was
lying, nor that it was proper for the district court to
disregard the rest of her testimony about working
before her shift.
Summit also contends that even if the court erred in
discrediting Kellar’s testimony, it correctly found that
the Portal-to-Portal Act applies because Kellar per-
formed her pre-shift activities primarily for her “own
convenience.” Summit points to Kellar’s deposition
testimony in which she stated that she arrived early
because it would be a “hassle” to show up at 5:00 a.m.
and get her subordinates up and running close to the
start of their 5:00 a.m. work shifts.
The Portal-to-Portal Act exempts those activities that
are “predominantly . . . spent in [the employee’s] own
interests,” meaning those activities that are undertaken
“for [the employee’s] own convenience, not being
required by the employer and not being necessary for
the performance of [the employee’s] duties for the em-
ployer.” Dunlop v. City Electric, Inc., 527 F.2d 394, 398 (5th
Cir. 1976); see also 29 C.F.R. § 790.8(c) (pre-shift activities
undertaken primarily for the employee’s convenience
are preliminary or postliminary). The Portal-to-Portal
Act, however, does not relieve employers from liability
for any work of consequence performed for an employer
from which the employer derives significant benefit.
Dunlop, 527 F.2d at 399.
10 No. 11-1221
Here, Summit conceded for purposes of its motion
for summary judgment that Kellar performed pre-shift
“work.” 1 That concession forecloses Summit’s argument.
“Work” is “exertion . . . pursued necessarily and primarily
for the benefit of the employer.” 2 See IBP, 546 U.S. at 25.
Therefore, by definition, “work” is performed not for
the employee’s “convenience,” but for the employer’s
benefit. Kellar’s subjective reasons for arriving early
simply do not matter for purposes of determining
whether her pre-shift activities primarily benefitted her
or Summit. See 29 C.F.R. § 785.11 (“[A]n employee may
voluntarily continue to work at the end of the shift [for
many reasons] . . . . The reason is immaterial . . . .
[T]he time is working time.”); see also Dunlop, 527 F.2d at
400 n.11 (“The fact that the employees too may have
benefited . . . is not inconsistent with the conclusion
that the work was an integral and indispensable func-
tion of the defendant business.”).
1
In its motion Summit stated: “[F]or the purpose of this
Motion only, Summit Seating will assume that Plaintiff per-
formed the tasks and that those tasks were ‘work’ under the
FLSA.”
2
Exertion is not in fact necessary for an activity to constitute
“work” because an employer may hire an employee “to do
nothing, or to do nothing but wait for something to happen.” Id.
No. 11-1221 11
B. Kellar’s Pre-Shift Work Was Not De Minimis
The de minimis doctrine allows employers to disregard
otherwise compensable work when only a few seconds
or minutes of work beyond the scheduled working
hours are in dispute. Singh v. City of New York, 524 F.3d 361,
370 (2d Cir. 2008). Summit bears the burden to show that
the de minimis doctrine applies. See Frank v. Wilson & Co.,
Inc., 172 F.2d 712, 715 (7th Cir. 1949) (characterizing the
de minimis doctrine as a defense); Spoerle v. Kraft Foods
Global, Inc., 527 F. Supp. 2d 860, 868 (W.D. Wis. 2007)
(explaining that because defendant sought to rely on the
de minimis exception, the defendant had the burden
of proof).
When evaluating whether work performed by an em-
ployee is de minimis, courts typically consider the
amount of time spent on the extra work, the practical
administrative difficulties of recording additional time,
the regularity with which the additional work is per-
formed, and the aggregate amount of compensable
time. Lindow v. United States, 738 F.2d 1057, 1062-63 (9th
Cir. 1984); see also 29 C.F.R. § 785.47 (“In recording
working time . . . insubstantial . . . periods of time
beyond the scheduled working hours, which cannot as
a practical administrative matter be precisely recorded
for payroll purposes, may be disregarded. . . . This rule
applies only where there are uncertain . . . periods of
time involved of a few seconds or minutes in duration,
and where the failure to count such time is due to con-
siderations justified by industrial realities. . . .”).
Summit contends that Kellar’s work was de minimis in
large part because it would have been administratively
12 No. 11-1221
difficult to determine how much of Kellar’s pre-shift
time is compensable. There is some merit to this argu-
ment. See Lindow 738 F.2d at 1062 (“The de minimis rule
is concerned with the practical administrative difficulty
of recording small amounts of time for payroll pur-
poses.”). Kellar’s time cards do not indicate which
tasks Kellar performed or for how long. Some of the
activities she performed, such as making coffee and
taking a smoking break, may not be compensable,
while others, such as distributing fabric and preparing
schedules, likely would be. But these were not insur-
mountable hurdles. Since Kellar testified that she
typically performed the same kinds of activities every
day, it would have been possible to compute how much
time Kellar spent on compensable activities. Cf. Lindow,
738 F.2d at 1064 (concluding that plaintiffs’ claim was
de minimis “because of the administrative difficulty of
recording the time and the irregularity of the additional
pre-shift work” (emphasis added)).
Moreover, at least as claimed, the amount of pre-shift
work at issue here, both per day and in the aggregate,
is substantial. Kellar testified that she worked between
15 and 45 minutes before her shift, excluding a 5-minute
break. She contends that she spent between 10 and
40 minutes working every day before her shift. Summit
does not point to any cases that have found that work
exceeding between 10 and 15 minutes in duration is
de minimis. Cf. id at 1054 (“Most courts have found daily
periods of approximately 10 minutes de minimis even
though otherwise compensable.”) (citing cases). Kellar’s
pre-shift work would therefore not be de minimis under
FLSA law.
No. 11-1221 13
C. Summit’s Lack of Knowledge
Although Kellar’s work activities were neither prelimi-
nary nor de minimis, her claimed work is nevertheless non-
compensable. To state a claim under the FLSA, Kellar
must show that Summit had actual or constructive knowl-
edge of her overtime work. See Reich v. U.S. Dep’t of
Conservation & Natural Res., State of Ala., 28 F.3d 1076, 1082
(11th Cir. 1994). The district court found that Summit
neither knew nor should have known, that Kellar was
working overtime. We agree.
The FLSA imposes an obligation on the employer “to
exercise its control and see that work is not performed if
it does not want it to be performed.” See 29 C.F.R. § 785.13.
The employer “cannot sit back and accept the benefits
without compensating for them.” Id. “[The employer’s]
duty arises even where the employer has not requested the
overtime be performed or does not desire the employee
to work, or where the employee fails to report his
overtime hours.” Chao v. Gotham Registry, Inc., 514 F.3d
280, 288 (2d Cir. 2008). The mere promulgation of a rule
against overtime work is not enough. 29 C.F.R. § 785.13.
Nor does the fact that the employee performed the
work voluntarily necessarily take her claim outside of
the FLSA. 29 C.F.R. § 785.11.
However, the FLSA stops short of requiring the
employer to pay for work it did not know about, and
had no reason to know about. See 29 U.S.C. § 203(g) (“’Em-
ploy’ includes to suffer or permit to work.”); Reich, 28
F.3d at 1082 (“[A]n employer’s knowledge is measured
in accordance with his duty . . . to inquire into the condi-
14 No. 11-1221
tions prevailing in his business. . . . [A] court need only
inquire whether . . . [the employer] had the opportunity
through reasonable diligence to acquire knowledge.”
(internal quotation marks and citations omitted));
29 C.F.R. § 785.11 (“The employer knows or has reason
to believe that he is continuing to work.”).
Kellar points to her time cards, which reflect that she
clocked in early, and argues that Summit should have
known that she was performing pre-shift work. But
Kellar’s clocking in early would not necessarily have
alerted Summit that Kellar was performing pre-shift
work. See 29 C.F.R. § 785.48 (employees who clock in early
do not have to be paid so long as they are not working).
Kellar conceded that most Summit employees were in
the habit of punching in early and then socializing
until their work shifts began. Nothing in the record
suggests that Ray and Sue Fink, who were aware of this
practice and who arrived several hours after everybody
else, had reason to believe that Kellar was arriving early
in order to work. Cf. Chao, 514 F.3d at 280, 286-88
(nurses did not tell employer ahead of time that they
were working overtime, but the employer had notice
because it was aware that the nurses often worked over-
time and the nurses reported the overtime in their time
sheets).
We recognize that “an employer is not relieved of the
duty to inquire into the conditions prevailing in his
business because the extent of the business may preclude
his personal supervision.” Reich, 28 F.3d at 1083 (internal
quotation marks and citation omitted). But in this case,
No. 11-1221 15
the Finks had no reason to suspect Kellar was acting
contrary to the conditions prevailing in their business
generally. Kellar’s behavior raised no flags. When Kellar
forgot to punch in, she would simply write in her time
card that she arrived at the beginning of her scheduled
work shift. Over the course of eight years, Kellar never
told the Finks that she was working overtime. Indeed,
there is no indication that anyone else knew Kellar was
performing pre-shift work.
On the contrary, every week, Summit’s management
had meetings to discuss the following week’s schedule.
Kellar, who was herself a manager, never mentioned
during any of those meetings that she was working
before her shift began or that she was not being
properly compensated, even though she claims to have
had a good relationship with the Finks. Kellar was also
aware of Summit’s policy prohibiting overtime work
absent express permission—once, she even reprimanded
another employee for clocking in early.
Given these circumstances, the Finks had little reason
to know, or even suspect, Kellar was acting in direct
contradiction of a company policy and practice that she
herself was partially responsible for enforcing. Accord-
ingly, no reasonable trier of fact could conclude that
Summit had reason to know that Kellar was working
before her shift, and the district court must be affirmed.
D. Failure of Kellar’s Indiana’s Wage Payment Claim
Kellar concedes that her state law claim under
Indiana’s Wage Payment Statute (“IWPS”) is derivative
16 No. 11-1221
of her FLSA claim. See Gehbauer v. Emas, Inc., 679 N.E.2d
1374, 1376-77 (Ind. Ct. App. 1997). The only difference
between the two claims in this case is that Kellar’s FLSA
claim seeks damages for unpaid hours worked over
40 hours in each workweek, while her IWPS claim seeks
damages for unpaid, pre-shift hours for those workweeks
during which she worked less than 40 hours and for
which the FLSA would not provide compensation.
Because we have concluded that Summit is entitled to
summary judgment on Kellar’s FLSA claim, we con-
clude that Kellar’s IWPS claim fails too.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
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