Clifton Sandifer v. United States Steel Corporation

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1821, 10-1866
CLIFTON SANDIFER, et al.,
Plaintiffs-Appellees/
Cross-Appellants,
v.
UNITED STATES STEEL CORPORATION,
Defendant-Appellant/
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:07-cv-00443-RLM-PRC—Robert L. Miller, Jr., Judge.
ARGUED FEBRUARY 15, 2012—DECIDED MAY 8, 2012
Before POSNER, FLAUM, and MANION, Circuit Judges.
POSNER, Circuit Judge. These appeals arise out of a class
action (technically a “collective action,” as it is brought
pursuant to 29 U.S.C. § 216(b), a part of the Fair Labor
Standards Act of 1938, 29 U.S.C. §§ 201 et seq., rather
than pursuant to Fed. R. Civ. P. 23) on behalf of 800
former and current hourly workers at U.S. Steel’s steel

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2 Nos. 10-1821, 10-1866
works in Gary, Indiana. The plaintiffs argue that U.S. Steel
has violated the Act by failing to compensate them for
the time they spend in putting on and taking off their
work clothes in a locker room at the plant (“clothes-
changing time”) and in walking from the locker room
to their work stations, and back again at the end of the
day (“travel time”). The collective bargaining agreement
between U.S. Steel and the steelworkers union does
not require compensation for such time, and apparently
none of the previous collective bargaining agreements
between U.S. Steel and the union since 1947, nine years
after the FLSA was enacted, required it either. But the
plaintiffs argue that the Act itself requires compensa-
tion; and if it does, it overrides any contrary contractual
provision. Barrentine v. Arkansas-Best Freight System, Inc.,
450 U.S. 728, 740-41 (1981).
The district judge ruled that the Fair Labor Standards
Act does not require that the clothes-changing time in
this case be compensated, but that the Act may require
that the travel time be compensated and he therefore
refused to dismiss the suit. But he certified the issue of
the compensability of the travel time for an inter-
locutory appeal under 28 U.S.C. § 1292(b) by U.S. Steel,
and we accepted the appeal.
The plaintiffs have cross-appealed. They want to chal-
lenge the district judge’s ruling that clothes-changing
time is not compensable. U.S. Steel points out that the
cross-appeal doesn’t satisfy the procedural standard for
an appeal under section 1292(b) because the plaintiffs
did not ask either the district judge or us for leave to

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Nos. 10-1821, 10-1866 3
appeal. So we hereby dismiss the cross-appeal. But the
dismissal has no practical significance. For if the ruling
on clothes-changing time was erroneous, the plaintiffs’
case for compensation for travel time is, as we’ll see,
irrefutable. And so they can certainly argue, in opposition
to the appeal, that the ruling was indeed erroneous.
So on to the merits—and it will simplify exposition to
start with the clothing issue. The Fair Labor Standards
Act requires that workers be paid at least the federal
minimum wage for all hours worked, and time and a
half for hours worked over 40 hours in a week. But the
statute does not define “work,” a critical hole that the
courts must fill—critical because the Act covers an im-
mense variety of kinds of workplace, and by expanding
the meaning of “work” courts could overrule agree-
ments negotiated between labor and management and
create unforeseen retroactive liabilities. To cut back on
Supreme Court decisions believed to have done this,
Congress in 1947 passed the Portal-to-Portal Act, 29
U.S.C. §§ 251 et seq., and two years later, in the spirit of
that Act, added section 3(o) to the Fair Labor Standards
Act, 29 U.S.C. § 203(o). That section excludes, from
the time during which an employee is entitled to be
compensated at the minimum hourly wage (or, if it is
overtime work, at 150 percent of his hourly wage),
“any time spent in changing clothes or washing at the
beginning or end of each workday which was excluded
from measured working time . . . by the express terms of
or by custom or practice under a bona fide collective-
bargaining agreement applicable to the particular em-
ployee.” Id. (“Washing time” is not at issue in this case,

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4 Nos. 10-1821, 10-1866
however.) The plaintiffs argue that the section is inap-
plicable because what the district court deemed “clothes”
are not clothes within the meaning of the Act, but
rather safety equipment. The statute does not define
“clothes.”
The alleged clothes consist of flame-retardant pants
and jacket, work gloves, metatarsal boots (work boots
containing steel or other strong material to protect the
toes and instep), a hard hat, safety glasses, ear plugs,
and a “snood” (a hood that covers the top of the head,
the chin, and the neck). These work clothes are in the
record, and since a picture is worth a thousand words, here
is a photograph of a man modeling the clothes:

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Nos. 10-1821, 10-1866 5
The glasses and ear plugs are not clothing in the
ordinary sense but the hard hat might be regarded as an
article of clothing, and in any event putting on the

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6 Nos. 10-1821, 10-1866
glasses and the hard hat and putting in the ear plugs is
a matter of seconds and hence not compensable, because
de minimis. “Split-second absurdities are not justified by
the actualities of working conditions or by the policy of
the Fair Labor Standards Act. It is only when an employee
is required to give up a substantial measure of his time
and effort that compensable working time is involved.”
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946);
see also Frank v. Wilson & Co., 172 F.2d 712, 715-16
(7th Cir. 1949); Perez v. Mountaire Farms, Inc., 650 F.3d 350,
372-75 (4th Cir. 2011); id. at 376-81 (concurring opin-
ion); Alvarez v. IBP, Inc., 339 F.3d 894, 903-04 (9th Cir. 2003),
affirmed under the name of IBP, Inc. v. Alvarez, 546 U.S. 21
(2005).
The rest of the outfit certainly seems to be clothing, but
the plaintiffs argue, no, it’s “personal protective equip-
ment.” Actually it’s both. Protection—against sun, cold,
wind, blisters, stains, insect bites, and being spotted
by animals that one is hunting—is a common function
of clothing, and an especially common function of work
clothes worn by factory workers. It would be absurd
to exclude all work clothes that have a protective
function from section 203(o), and thus limit the exclu-
sion largely to actors’ costumes and waiters’ and door-
men’s uniforms. Remember that the section covers not
only clothes-changing time but also washing-up time,
and workers who wear work clothes for self-protection
in a dangerous or noxious work environment are far
more likely to require significant time for washing up
after work than a waiter.

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Nos. 10-1821, 10-1866 7
It’s true that not everything a person wears is cloth-
ing. We say that a person “wears” glasses, or a watch, or
his heart on his sleeve, but this just shows that “wear” is a
word of many meanings. Almost any English speaker
would say that the model in our photo is wearing work
clothes. Given the subject matter of the Fair Labor Stan-
dards Act it would be beyond odd to say that the word
“clothes” in section 203(o) excludes work clothes, espe-
cially since the section is about changing into and out
of clothes at the beginning and end of the workday. Not
all workers wear work clothes, but workers who change
at the beginning and end of the workday are changing
into and out of work clothes, and if they are governed
by a collective bargaining agreement that makes such
changing noncompensable the agreement must apply
to work clothes, for otherwise the noncompensation
provision would have virtually no applications.
The fact that the clothing exclusion is operative only
if it is agreed to in collective bargaining implies, more-
over, that workers are compensated for the time they
spend changing into work clothes, and washing up and
changing back. “Section 203(o) permits unions and man-
agement to trade off the number of compensable
hours against the wage rate; the workers get more, per
hour, in exchange for agreeing to exclude some time
from the base.” Spoerle v. Kraft Foods Global, Inc., 614
F.3d 427, 428 (7th Cir. 2010). The steelworkers would not
have given up their statutory entitlement to time and a
half for overtime, when changing clothes or traveling
to and from their work stations, without receiving some-
thing in return; and they will get to keep that compensa-

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8 Nos. 10-1821, 10-1866
tion until the next collective bargaining agreement
goes into effect, in addition to the back pay they’re de-
manding, if they convince us that “clothes” don’t include
the work clothes worn by steelworkers at the Gary plant.
From a worker’s standpoint any time spent on the
factory grounds is time “at work” in the sense of time
away from home or some other place where he might
prefer to be if he weren’t at work. But it is not time
during which he is making steel, and so it is not time
for which the company will willingly pay. If the
workers have a legal right to be paid for that time, the
company will be less willing to pay them a high wage
for the time during which they are making steel; it
will push hard to reduce the hourly wage so that its
overall labor costs do not rise. The steel industry is inter-
national and highly competitive, and unions temper
their wage demands to avoid killing the goose that lays
the golden eggs. They don’t want the American steel
industry to go where so much American manufacturing
has gone in recent years—abroad. The plaintiffs are
adverse to their union, to the interests of other
steelworkers, and to their own long-term interests.
The plaintiffs cite language from a number of cases
to the effect that “exemptions” from the Fair Labor Stan-
dards Act are to be construed narrowly. E.g., Moreau
v. Klevenhagen, 508 U.S. 22, 33 (1993); A.H. Phillips, Inc. v.
Walling, 324 U.S. 490, 493 (1945). We expressed skepticism
in Yi v. Sterling Collision Centers, Inc., 480 F.3d 505,
508 (7th Cir. 2007), asking rhetorically: “Why should one
provision in a statute take precedence over another?”

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Nos. 10-1821, 10-1866 9
No matter; section 203(o) does not create an exemp-
tion. The Fair Labor Standards Act has a section
entitled “Exemptions”; it is 29 U.S.C. § 213; the exclusion
of changing time is not in that section.
This is more than a quibble. There’s a difference
between exclusion and exemption, or, equivalently,
between scope and coverage. The FLSA does not apply
to American workers abroad. Or to soldiers. Or to
certain people who volunteer for particular kinds of
charitable work. These exclusions help to define the
scope of the Act. That scope is defined in 29 U.S.C.
§ 203, which is entitled “Definitions” and is where we
find the provision concerning compensation for clothes-
changing time, rather than in section 213, where instead
we find exemptions for certain types of worker, such
as certain agricultural workers. Section 203(o) creates
an exclusion rather than an exemption, as all but one
appellate decision to address the issue has held. See
Salazar v. Butterball, LLC, 644 F.3d 1130, 1138 (10th Cir.
2011); Franklin v. Kellogg Co., 619 F.3d 604, 611-12 (6th
Cir. 2010); Allen v. McWane, Inc., 593 F.3d 449, 458 (5th Cir.
2010); Anderson v. Cagle’s, Inc., 488 F.3d 945, 957-
58 (11th Cir. 2007).
The outlier is Alvarez v. IBP, Inc., supra, 339 F.3d at 905
(the affirmance of the decision by the Supreme Court
was on other grounds). But as the Anderson decision
points out, 488 F.3d at 957, the Ninth Circuit seemed
to have forgotten that subsection (o) of section 203
is not found in the section of the FLSA that creates ex-
emptions. The Ninth Circuit also thought it important

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10 Nos. 10-1821, 10-1866
that protective clothing (the workers in question were
employed in a meat-packing plant and were required
to wear protective work clothes similar to those the
steelworkers wear, see 339 F.3d at 898 n. 2) is “dif-
ferent in kind from typical clothing,” which the court
instanced by “warm clothing.” Id. at 905. But this was
just to say that work clothes are not street clothes.
That can’t be the end of the analysis. Since workers very
rarely change at work from street clothes into street
clothes, section 203(o) would as we said be virtually
empty if the Ninth Circuit were right.
So the district judge was correct to rule that, given
the terms of the collective bargaining agreement, U.S.
Steel doesn’t have to compensate its workers for the
time they spend changing into and out of their work
clothes. We add that the ruling accords with all but one
reported appellate decision, and again the outlier is
the Ninth Circuit’s decision in Alvarez. See Salazar v.
Butterball, LLC, supra, 644 F.3d at 1136-41; Franklin v. Kellogg
Co., supra, 619 F.3d at 610-16; Sepulveda v. Allen Family
Foods, Inc., 591 F.3d 209, 214-18 (4th Cir. 2009); Anderson v.
Cagle’s, Inc., supra, 488 F.3d 945, 955-58 (11th Cir. 2007);
Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir. 2001)
(per curiam). And in Spoerle v. Kraft Foods Global, Inc., supra,
614 F.3d at 428, we adopted Sepulveda’s reasoning and
conclusion without undertaking a separate analysis.
But the judge’s ruling that the clothes-changing time
isn’t compensable makes his ruling that the company
must compensate the plaintiffs for travel time puzzling
and paradoxical (which is why, as we said earlier, the

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Nos. 10-1821, 10-1866 11
plaintiffs were entitled to argue against the judge’s
ruling on clothes-changing time without having to cross
appeal). The Portal-to-Portal Act exempts from the mini-
mum wage and overtime provisions of the Fair Labor
Standards Act “walking, riding, or traveling to and
from the actual place of performance of the principal
activity or activities which such employee is employed
to perform.” 29 U.S.C. § 254(a). Had the clothes-
changing time in this case not been rendered noncom-
pensable pursuant to section 203(o), it would have been
a principal activity. But unless changing into and
changing out of work clothes are principal activities
even when made noncompensable pursuant to section
203(o), the exemption in section 254(a) applies, and
U.S. Steel need not compensate for travel time.
The judge thought that clothes-changing time could
be a “principal activity” even though the employer and
the union had decided, as he agreed they were entitled
to do, that changing time is not work time and need not
be compensated. If it is not work time—the workers
aren’t being paid and their union has agreed to their not
being paid—how can it be one of the “principal . . . activi-
ties which [the] employee is employed to perform”? He
is required to wear work clothes, and for that matter
he is required to show up for work. But he is not
employed to show up or employed to change clothes.
Not all requirements imposed on employees constitute
employment. An employee may be required to call in
when he is sick, but unless he is on paid sick leave he
is not paid for the time it takes to place the call.

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12 Nos. 10-1821, 10-1866
In Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956), the
Supreme Court held that the term “principal activity
or activities” included all activities that are an “integral
and indispensable part of the principal activities” for
which the employee is employed, and the Court
reaffirmed that ruling in IBP, Inc. v. Alvarez, supra, 546
U.S. at 37. If an employer requires his employees to
don and doff work clothes at the workplace, then
donning and doffing are an integral and indispensable
part of the workers’ main activity (in this case, making
steel) and therefore a principal activity. Steiner v. Mitchell,
supra, 350 U.S. at 256. Alvarez held that when this is
the case the time the worker spends walking from the
locker room to the worksite is not time walking to and
from a principal activity, but instead time walking
between principal activities, and so is not within the ex-
emption created by the Portal-to-Portal Act, just as if
the worker were a millwright who inspects, repairs,
replaces, installs, adjusts, and maintains mechanical
equipment in different parts of the steel mill and to do
these tasks must walk from one piece of equipment to
another. See IBP, Inc. v. Alvarez, supra, 546 U.S. at 37.
But the Court in Steiner thought it significant that
there was no collective bargaining agreement that made
clothes-changing time noncompensable. The Court re-
marked “the clear implication” of section 203(o) “that
clothes changing and washing, which are otherwise a
part of the principal activity, may be expressly excluded
from coverage by agreement.” Steiner v. Mitchell, supra,
350 U.S. at 255 (emphasis added). That is what happened
in this case. Section 203(o) permits the parties to a col-

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Nos. 10-1821, 10-1866 13
lective bargaining agreement to reclassify changing time
as nonworking time, and they did so, agreeing that
the workday would not start when the workers changed
their clothes; it would start when they arrived at their
work site. If clothes-changing time is lawfully not com-
pensated, we can’t see how it could be thought a principal
employment activity, and so section 254(a) exempts the
travel time in this case.
As with clothes-changing time, workers would not
benefit in the long run from a rule that travel time must
be compensated. It would mean that in an 8-hour shift
(the hourly workers at the Gary steel works work 8-hour
shifts), the employer would not obtain eight hours of
productive work; he would be paying the same wage
and getting less work in return (or getting the same
work but paying time and half overtime for the work-
ers’ travel time), and so the wage would have to
fall the next time the collective bargaining agreement
was renegotiated unless the laws of economics were
repealed. Employers would also be moved to limit
the time they allowed their workers for travel (which
would require more supervisors and cause disputes) and
perhaps to reduce travel time further by moving the
locker rooms closer to the work stations. These measures
would spell higher costs for the employer—higher labor
costs. The higher such costs are, the lower the hourly
wage will be. And so the higher costs would be borne
ultimately by the workers.
Employers could emasculate the plaintiffs’ interpreta-
tion of the “primary activity” provision by placing the

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14 Nos. 10-1821, 10-1866
locker rooms in the work stations, for then there would
be no post-primary-activity travel time. There is some-
thing amiss with an interpretation that implies that the
location of the locker room, rather than the amount
of time involved in walking to one’s work station, deter-
mines one’s statutory entitlement to compensation. Sup-
pose it is 100 yards from the plant entrance to the
locker room and another 100 yards to the work station.
On the plaintiffs’ view, traversing the second 100 yards
is compensable, though traversing the first 100 yards is
not, but if the locker room were adjacent to the work
station none of the workers’ travel time would be com-
pensable even though the amount of walking they’d
be doing would be identical. What sense could that make?
It was concern with the disruption of the workplace
caused by forcing employers to compensate for travel
time and clothes-changing time, as the Supreme Court
held they must do in Anderson v. Mt. Clemens Pottery Co.,
supra, 328 U.S. at 690-92; Jewell Ridge Coal Corp. v. Local No.
6167, United Mine Workers, 325 U.S. 161, 163-64 (1945); and
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,
321 U.S. 590, 598 (1944), that drove the enactment of
sections 203(o) and 254(a). IBP, Inc. v. Alvarez, supra, 546
U.S. at 25-26; Sepulveda v. Allen Family Foods, Inc., supra, 591
F.3d at 217; Anderson v. Cagle’s, Inc., supra, 488 F.3d at 957-
58; Adams v. United States, 471 F.3d 1321, 1324-25 (Fed. Cir.
2006); Thomas v. Howard University Hospital, 39 F.3d 370,
371-72 (D.C. Cir. 1994). “The FLSA . . . does not define the
terms ‘work’ or ‘workweek.’ The Supreme Court defined
these terms ‘broadly’ in its early FLSA cases . . . defined
them so broadly, in fact, that Congress found it necessary

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Nos. 10-1821, 10-1866 15
to amend the statute to restore some sanctity to private
employment contracts.” Sepulveda v. Allen Family Foods,
Inc., supra, 591 F.3d at 217.
This history provides guidance to the meaning of
“clothes” and “principal activity” by showing that Con-
gress was trying to eliminate the disruptions that the
Court’s interpretation of the Fair Labor Standards Act
had caused, and to allow the determination of what is
compensable work in borderline cases (is changing
into work clothes “work”? is walking from a locker room
to a work station “work”?) to be settled by negotiation
between labor and management. As the preamble to
the Portal-to-Portal Act states, rather dramatically,
The Congress finds that the Fair Labor Standards
Act of 1938 . . . has been interpreted judicially in
disregard of long-established customs, practices, and
contracts between employers and employees, thereby
creating wholly unexpected liabilities, immense in
amount and retroactive in operation, upon employers
with the results that, if said Act as so interpreted
or claims arising under such interpretations were
permitted to stand, (1) the payment of such
liabilities would bring about financial ruin of many
employers and seriously impair the capital resources
of many others, thereby resulting in the reduction
of industrial operations, halting of expansion and
development, curtailing employment, and the
earning power of employees; (2) the credit of many
employers would be seriously impaired; (3) there
would be created both an extended and continuous

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16 Nos. 10-1821, 10-1866
uncertainty on the part of industry, both employer
and employee, as to the financial condition of pro-
ductive establishments and a gross inequality of
competitive conditions between employers and be-
tween industries; (4) employees would receive
windfall payments, including liquidated damages, of
sums for activities performed by them without any
expectation of reward beyond that included in
their agreed rates of pay; (5) there would occur the
promotion of increasing demands for payment to
employees for engaging in activities no compensa-
tion for which had been contemplated by either
the employer or employee at the time they were
engaged in; [and] (6) voluntary collective bargaining
would be interfered with and industrial disputes
between employees and employers and between
employees and employees would be created….
29 U.S.C. § 251(a).
Only one previous appellate case has decided whether
noncompensable changing time can be work time for
purposes of the travel-time exemption. In Franklin v.
Kellogg Co., 619 F.3d 604, 618-19 (6th Cir. 2010), as in
this case, the employer, invoking section 203(o), did
not pay its workers for time spent changing into
work clothes. The court concluded nevertheless that
changing time, because required by the employer, was a
“principal activity.” This seems clearly wrong, for the
reasons we’ve explained (and the Franklin opinion
offers only a conclusion, not reasons). But because by
disagreeing with Franklin we would create an inter-

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Nos. 10-1821, 10-1866 17
circuit conflict, we have circulated this opinion to the
full court in advance of publication. 7th Cir. R. 40(e).
None of the judges in regular active service voted to
hear the case en banc. (Judge Williams did not partici-
pate in the Rule 40(e) consideration of the matter.)
The Department of Labor has participated as an
amicus curiae in this appeal on the side of the plaintiffs,
and we end by considering what weight we should give
its views. During the Clinton Administration the Depart-
ment took a narrow view of the meaning of the term
“clothes” for purposes of determining whether time
spent in changing in and out of work clothes could be
excluded under section 203(o) from the FLSA’s minimum
wage and overtime provisions. See U.S. Dep’t of Labor,
Opinion Letter, 2001 WL 58864 (Jan. 15, 2001); Opinion
Letter, 1997 WL 998048 (Dec. 3, 1997). During the
Bush Administration the Department took a broad
view—broader than we take—of what “clothes” means
in the FLSA, and added that clothes-changing time ex-
cluded under section 203(o) could not be a “principal
activity” under the Portal-to-Portal Act. U.S. Dep’t of
Labor, Opinion Letter, 2007 WL 2066454 (May 14, 2007);
Opinion Letter, 2002 WL 33941766 (June 6, 2002). After
the change in administrations in 2009 the Department
reverted to the Clinton Administration’s position on
“changing clothes” and also rejected the Bush Admin-
istration’s position on “principal activity.” U.S. Dep’t
of Labor, Administrator’s Interpretation No. 2010-2,
2010 WL 2468195 (June 16, 2010). Such oscillation is a
normal phenomenon of American politics. Democrats are
friendlier to unions than Republicans are, though we

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18 Nos. 10-1821, 10-1866
cannot see how a decision in favor of the plaintiffs in
this case would help unions. (No union is a party to
this case or an amicus curiae.)
Naturally the Department of Labor does not acknowl-
edge that its motive in switching sides was political;
that would be a crass admission in a brief or in oral argu-
ment, and unlikely to carry weight with the judges. The
Department says instead that it is right as a matter of
law and that the position the Department took in the
Bush years is wrong; it adds that since it enforces the
Fair Labor Standards Act its (current) position should
carry weight with us. But all the Department does to
demonstrate the “rightness” of its current position is
to echo the plaintiffs’ arguments. Nowhere in the De-
partment’s brief is there a reference to any institutional
knowledge of labor markets possessed by the Depart-
ment’s staff—or to anything indeed to which the
parties might not have complete access—that might
help the court to decide the case sensibly; and at the
oral argument the Department’s lawyer acknowledged
this void. All that the Department has contributed
to our deliberations, therefore, though it is not quite
nothing, is letting us know that it disagrees with the
position taken by the Bush Department of Labor; for if
it were silent, from which one might infer that it agreed
with that position, it would be inviting U.S. Steel to
argue that the Department of Labor had been consistent,
at least since 2001, and thus across Administrations
controlled by opposite political parties, in rejecting
the plaintiffs’ position.

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Nos. 10-1821, 10-1866 19
It would be a considerable paradox if before 2001 the
plaintiffs would win because the President was a Demo-
crat, between 2001 and 2009 the defendant would win
because the President was a Republican, and in 2012 the
plaintiffs would win because the President is again a
Democrat. That would make a travesty of the principle
of deference to interpretations of statutes by the
agencies responsible for enforcing them, INS v. Cardoza-
Fonseca, 480 U.S. 421, 446 n. 30 (1987), since that
principle is based on a belief either that agencies have
useful knowledge that can aid a court or that they are
delegates of Congress charged with interpreting and
applying their organic statutes consistently with legisla-
tive purpose. We are not surprised to discover that
courts of appeals that have reached varied conclusions
on the issues presented by this appeal have come
together in spurning, as Judge Wilkinson has put it, “the
gyrating agency letters on the subject.” Sepulveda v.
Allen Family Foods, Inc., supra, 591 F.3d at 216 n. 3; see
also Salazar v. Butterball, LLC, supra, 644 F.3d at 1139;
Franklin v. Kellogg Co., supra, 619 F.3d at 612-14; Alvarez
v. IBP, Inc., supra, 339 F.3d at 905 n. 9; contra, Anderson
v. Cagle’s, Inc., supra, 488 F.3d at 956-57.
We resolve the specific issue that we have been asked
to resolve in this interlocutory appeal in favor of U.S.
Steel. On the basis of that resolution, the suit has no
merit and should be dismissed by the district court.
5-8-12

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