In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-4305

A LAN M USCH, on behalf of himself
and all others similarly situated,
                                              Plaintiff-Appellant,
                               v.

D OMTAR INDUSTRIES, INCORPORATED ,
                                             Defendant-Appellee.


            Appeal from the United States District Court
               for the Western District of Wisconsin.
       No. 3:07-cv-00524-bbc—Barbara B. Crabb, Chief Judge.



  A RGUED S EPTEMBER 24, 2009—D ECIDED N OVEMBER 25, 2009




 Before B AUER, K ANNE and E VANS, Circuit Judges.
  B AUER, Circuit Judge. Plaintiff-Appellant, Alan Musch,
on behalf of himself and all others similarly situated
(collectively “Plaintiffs”), seeks compensation for the
time spent changing clothes and showering at the end of
each work shift. The district court judge found that
these activities were non-compensable postliminary
activities, and entered summary judgment in favor of
Defendant-Appellee, Domtar Industries. We affirm.
2                                              No. 08-4305

                   I. BACKGROUND
  Plaintiffs are hourly paid maintenance employees at
Domtar’s paper mills, located in Nekoosa and Port Ed-
wards, Wisconsin. Musch alleges that Plaintiffs’ clothing,
skin, and hair are regularly exposed to hazardous chemi-
cals such as calcium oxide (a/k/a lime dust) at these
paper mills. Accordingly, in order to reduce exposure
to hazardous chemicals, Plaintiffs shower and change
their clothing before leaving the paper mill; they are not
compensated for the time these ablutions take. Musch,
on behalf of Plaintiffs, filed claims for overtime com-
pensation under the federal Fair Labor Standards Act
(“FLSA”) and Wisconsin state law, contending that
Domtar failed to pay Plaintiffs for: (1) time spent putting
on and taking off their work clothes, safety shoes, and
safety glasses before and after each workday; (2) time
spent showering after each workday; and (3) time
spent shaving as required by Domtar policy.
  Domtar counters that such compensation is not appro-
priate because it has a policy that requires an employee,
who has been exposed to a hazardous chemical on the
job, to immediately remove any affected clothing, and
wash the affected area. Domtar states that it compensates
any employee for the time spent changing clothes and
showering, if these activities are necessitated by ex-
posure to a hazardous chemical, including any exposure
that occurs at the end of the employee’s workday. There-
fore, according to Domtar’s policy, if an employee
knows that his skin has been exposed to a hazardous
chemical, he is required to immediately shower and
No. 08-4305                                                3

change and is paid for such time, even if that time is post-
shift, entitling the employee to overtime wages.
  Domtar filed a motion for summary judgment on all
of Plaintiffs’ claims. The district court granted the
motion in full, entered judgment in Domtar’s favor,
and denied Musch’s motion for partial reconsideration
of relief.


                    II. DISCUSSION
  On appeal, Musch challenges the district court’s
granting of summary judgment on the claim that
Domtar should be required to pay maintenance em-
ployees for time spent changing clothes and showering
at the end of their shifts, maintaining that these activities
are required to limit exposure to hazardous chemicals.
Musch also appeals the district court’s denial of his
motion for partial reconsideration.


  A. Post-Shift Activities
  We review the district court’s granting of summary
judgment de novo, construing all facts and reasonable
inferences in Musch’s favor. Piscione v. Ernst & Young,
L.L.P., 

, 532 (7th Cir. 1999). Summary judg-
ment is proper if the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue
of material fact such that Domtar is entitled to judgment
as a matter of law. Fed R. Civ. P. 56(c).
  The FLSA requires employers to “pay their employees
a wage for all the ‘work’ that they do.” Spoerle v. Kraft
4                                                No. 08-4305

Foods Global Inc., 

, 862 (W.D. Wis. 2007)
(citing 29 U.S.C. §§ 206, 207). While the FLSA does not
specifically define “work,” it has been defined as
“physical or mental exertion (whether burdensome or
not) controlled or required by the employer and
pursued necessarily and primarily for the benefit of the
employer and his business.” Jonites v. Exelon Corp., 

, 726 (7th Cir. 2008) (internal citations omitted).
Like the FLSA, Wisconsin requires that employees be
paid for all hours worked, and has adopted the same
definition of compensable work. Wis. Stat. § 103.025
(2002); Wis. Admin. Code DWD § 272.12(a)(1) (West 2009).
  Not all work-related activities constitute “work” that
must be compensated. Under the FLSA, employers are not
required to pay employees for the time spent performing
“preliminary” or “postliminary” activities, which “occur
either prior to the time on any particular workday at
which such employee commences, or subsequent to the
time on any particular workday at which he ceases,
such principal activity or activities.” 29 U.S.C. § 254(a)(2).
  Ordinarily, washing up or showering “when performed
under the conditions normally present” would be consid-
ered a “preliminary” or “postliminary” activity. 29 C.F.R.
§ 790.7(g); 29 C.F.R. § 785.24(c) (“if changing clothes is
merely a convenience to the employee and not directly
related to his principal activities, it would be considered
as a ‘preliminary’ or ‘postliminary’ activity rather than
a principal part of the activity”). However, an employee
can be compensated for activities such as washing up or
changing clothes if these activities are “integral” and
No. 08-4305                                              5

“indispensable” to that employee’s employment. IBP,
Inc. v. Alvarez, 

, 29-30 (2005).
  Musch seeks compensation for the time Plaintiffs
spend on Domtar’s premises changing their clothing and
showering after their shift. The district court found that
such time was not compensable under the FLSA and
Wisconsin state law and stated in her Order:
   Plaintiffs’ contention that they must shower at work at
   the end of their shift each day is based on their specu-
   lation that they may have hazardous chemicals on
   their skin. This contention fails . . . [because] it is
   based on speculation and not on evidence in the
   record.
Order at p. 18. Musch argues that the district court:
(1) ignored or missed specific evidence in which
Plaintiffs identified some of the chemicals on their skin
at the conclusion of their work shift; and (2) made infer-
ences and findings as to the weight of the evidence pre-
sented rather than the existence of such material evi-
dence. Appellant’s Brief at 6.
  To support his argument, Musch cites to the following
deposition testimony:
   ! During the course and scope of Plaintiffs’ duties
       in the “recaust area”, there is a potential for them
       to get lime dust on their work clothing and
       their skin. Deposition of Mikey Wert at 18-19,
       cited in Appellant’s Brief at 6-7.
   ! There are occasions when an employee was un-
       aware that chemicals were on him until he
6                                              No. 08-4305

       changed his clothes in the locker room. Most of the
       time it would be oil and grease, but it could be
       black liquor, lime, coal dust, ash, or soot. Deposi-
       tion of Rodney Nelson at 53-55, cited in Appel-
       lant’s Brief at 8.
    ! There have been times when there has been a
       delayed reaction to being exposed to chemicals
       such as lime dust. Deposition of Jeffrey L. Grube
       at 39-40, cited in Appellant’s Brief at 9.
    ! An employee showered every day after work
       because he did not want to enter his vehicle
       with dirty clothes and grease. He further stated
       that he didn’t want to take the grease, lime dust,
       and chemicals into his vehicle or home. Deposition
       of Daniel F. Savage at 31, 60-61, cited in Appel-
       lant’s Brief at 9.
    ! A manager would shower at the end of his work-
       day if he got lime dust on him. Deposition of
       Wes Erickson at 12-13, 16, 31-32, cited in Appel-
       lant’s Brief at 9-10.
  Musch contends that this testimony presents specific
evidence that Plaintiffs were exposed to chemicals such
as lime dust, which they did not discover until the end
of their work shift, and this exposure required them to
change and shower at Domtar’s premises. Appellant’s
Brief at p. 11. Musch submits that the frequency of expo-
sure is an issue that goes to damages, not liability. 

This testimony does not demonstrate
that the daily post-shift activities of changing one’s
No. 08-4305                                               7

clothes and showering are integral and indispensable to
Plaintiffs’ employment. Viewing the facts in the light
most favorable to Musch, we can infer that at times Plain-
tiffs needed to shower at Domtar’s premises, due to
chemical exposure. However, to the extent that this
testimony establishes that employees have been exposed
(or could be exposed) to hazardous chemicals, requiring
a change of clothes and shower, Musch fails to explain
how Domtar’s current policy regarding exposure to
hazardous chemicals is insufficient. In addition, the
record reveals that Plaintiffs bring their work clothes
home to launder them, casting doubt on the contention
that these clothes are regularly exposed to hazardous
chemicals. We find that recovery under the FLSA and
Wisconsin state law is not appropriate: Musch has failed
to demonstrate that chemical exposure is so pervasive
that it requires these post-shift activities, or that
Domtar has refused to compensate an employee for
the time spent in these post-shift activities following
chemical exposure. Further, even if there was an
occasion where an employee did not discover that he
had been exposed to hazardous chemicals until after
changing out of his work clothes, there is nothing that
would stop him from seeking compensation for the time
he spent changing and showering under Domtar’s
current policy.
  In sum, Plaintiffs’ daily post-shift activities are done
“under normal conditions” and are merely postliminary
non-compensable activities. See Pirant v. U.S. Postal Serv.,

, 208 (7th Cir. 2008). The district court prop-
erly granted summary judgment in favor of Domtar.
8                                              No. 08-4305

    B. Motion for Partial Reconsideration
  We review the district court’s decision to deny Musch’s
request for reconsideration under Fed. R. Civ. P. 60(b)
for an abuse of discretion. Hicks v. Midwest Transit, Inc.,

, 473 (7th Cir. 2008). Under Rule 60(b), a
court may relieve a party from a final judgment or order
based on, among other reasons, “mistake, inadvertence,
surprise, or excusable neglect”; “newly discovered evi-
dence that, with reasonable diligence, could not have
been discovered in time to move for a new trial”; or
“fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing
party.” Fed. R. Civ. P. 60(b).
  Following the granting of summary judgment in favor
of Domtar, Musch filed a motion under Rule 60(b), re-
questing partial reconsideration of relief, contending
that he had newly discovered evidence in the form of
deposition testimony from Domtar’s expert. Specifically,
Domtar’s expert testified that if a maintenance em-
ployee is exposed to calcium oxide, the employee
should wash it off immediately, and if a maintenance
employee was covered in calcium oxide at the end of his
shift, that employee should shower before leaving the
premises. Deposition of Kay Rowntree at 42-43, 162,
cited in Appellant’s Brief at 13-14.
  The district court denied relief under Rule 60(b)(2),
reasoning that Musch failed to show that this deposition
testimony could not have been discovered before the
summary judgment deadline or before the district court
issued its summary judgment order. Further, the
No. 08-4305                                             9

district court concluded that Musch merely rehashed the
arguments he had made at summary judgment and
failed to present evidence of extraordinary and excep-
tional circumstances under Rule 60(b)(6). In addition, the
district court noted that in moving for reconsideration,
Musch ignored Domtar’s policy concerning exposure to
hazardous chemicals.
  We agree with the district court’s reasoning, and find
that there was no abuse of discretion in denying
Musch’s motion to reconsider.


                  III. CONCLUSION
  For the reasons stated above, we A FFIRM the district
court.




                         11-25-09