                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1172
                                  ___________

Jeffrey Chubb,                         *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
City of Omaha, Nebraska,               *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: June 24, 2005
                               Filed: September 27, 2005
                                ___________

Before ARNOLD, MCMILLIAN, and COLLOTON, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

      Jeffrey Chubb appeals the entry by the district court1 of summary judgment in
favor of the City of Omaha, Nebraska, on his claim that Omaha violated the Family
and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, by denying him bonus
annual leave after he took FMLA leave. We review the district court's decision de
novo, see Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir. 2003), cert.
denied, 540 U.S. 823 (2003), and affirm.


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
       The City of Omaha awards a police officer who does not take more than
40 hours of sick leave in a particular year with 2 hours of additional annual leave for
each pay period during that year in which the officer had at least 1000 hours of
accrued sick leave. For all of 2003, Mr. Chubb had at least 1000 hours of accrued
sick leave. When in that year he took three weeks of leave for surgery, however, he
"substitute[d]" accrued paid sick leave for FMLA leave, see 29 U.S.C.
§ 2612(d)(2)(B). (Although the term "substitute" is used in § 2612(d)(2)(B), that
term is somewhat misleading because the paid sick leave counts against the 12 weeks
of leave guaranteed by the FMLA, see 29 U.S.C. § 2612(c), (d)(1).) Since the paid
sick leave that Mr. Chubb took exceeded 40 hours, Omaha refused to award him the
annual leave bonus after he was restored to employment.

       Mr. Chubb maintains that, by denying him the annual leave bonus, Omaha
failed to restore him "to an equivalent position with equivalent employment benefits,"
as the FMLA requires. 29 U.S.C. § 2614(a)(1)(B). He points to the regulations that
implement this requirement, specifically 29 C.F.R. § 825.215(c)(2), which requires
that bonuses "for job-related performance such as for perfect attendance" be available
to an employee "upon return from FMLA leave" when that employee "met all the
requirements for [the bonus] before FMLA leave began." The title for § 825.215(c),
however, is "Equivalent Pay," and what Mr. Chubb seeks is additional annual leave,
which the FMLA and accompanying regulations define as a "benefit" rather than
"pay." See 29 U.S.C. § 2611(5); 29 C.F.R. § 825.215(d). Therefore, we must
evaluate Mr. Chubb's claim based on the statutory and regulatory requirements for
benefits.

       The FMLA limits the benefits to which a restored employee is entitled:
"Nothing" in the section on protection of benefits "shall be construed to entitle any
restored employee to – (A) the accrual of any ... employment benefits during any
period of leave; or (B) any ... benefit ... of employment other than any ... benefit ... to
which the employee would have been entitled had the employee not taken the leave."

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29 U.S.C. § 2614(a)(3). (The applicable regulation – 29 C.F.R. § 825.215(d)(2) –
essentially repeats the statutory language.) Mr. Chubb contends that he "would have
been entitled" to the annual leave bonus "had [he] not taken the leave," and thus the
above limitation still redounds in his favor. Omaha counters that it did not deny
Mr. Chubb the annual leave bonus because he took FMLA leave; instead it refused
him the bonus because he took paid sick leave concurrently with his FMLA leave.
Although the FMLA does not define "leave," the statute earlier uses the term "paid
... medical or sick leave" to refer to that specific kind of leave. See 29 U.S.C.
§ 2612(d)(2)(B). Therefore we interpret the term "leave" in § 2614(a)(3) to mean the
baseline, unpaid component of leave, apart from any substitution of paid sick leave.
See 29 U.S.C. § 2612(c); 29 C.F.R. § 825.207. Consequently, Omaha correctly
distinguishes between FMLA leave and paid sick leave.

       Mr. Chubb further argues, however, that Omaha required him to use his paid
leave and that Omaha should not be allowed through such coercion to skirt the
FMLA's requirement that he be restored to equivalent benefits. Whether the City of
Omaha required Mr. Chubb to take paid annual or sick leave is unclear from the
record. Omaha's form for requesting FMLA leave asks employees to select either
paid sick leave or annual leave to run concurrently with FMLA leave and states that
employees "may not use unpaid leave until all paid leave is exhausted." But a letter
sent to Mr. Chubb after he filed his request promised that Omaha would "not require
that [Mr. Chubb] substitute accrued paid leave for unpaid FMLA leave." Because
Mr. Chubb appeals from the grant of summary judgment, "we view the facts ... in the
light most favorable to [him]." Kraft v. St. John Lutheran Church of Seward, Neb.,
414 F.3d 943, 945 (8th Cir. 2005). Therefore we will assume without deciding that
Omaha required Mr. Chubb to substitute paid leave for FMLA leave.

       Mr. Chubb's contention nonetheless fails. Omaha permitted Mr. Chubb to take
either paid sick leave or paid annual leave concurrently with his FMLA leave, and
had Mr. Chubb chosen annual leave rather than sick leave he would not have forfeited

                                        -3-
his annual leave bonus. Thus, by electing paid sick leave he voluntarily ceded his
claim to the annual leave bonus. And even if Mr. Chubb had no paid annual leave
remaining when he took FMLA leave (we cannot tell from the record), the FMLA
allows Omaha to require that Mr. Chubb substitute paid sick leave for FMLA leave,
see 29 U.S.C. § 2612(d)(2)(B); 29 C.F.R. § 825.207(a). Without the substitution of
such paid leave, Mr. Chubb would have gone unpaid. The FMLA does not require
employers to provide paid leave, 29 U.S.C. § 2612(c), and we decline to punish
Omaha for putting Mr. Chubb in a better position than he would have enjoyed had
Omaha fulfilled only its minimum duties under the FMLA. See id.; cf. Ragsdale v.
Wolverine Worldwide, Inc., 535 U.S. 81, 96 (2002). Therefore we conclude that the
voluntariness of Mr. Chubb's election is of no moment, and that Omaha did not
violate the FMLA by denying Mr. Chubb an annual leave bonus after he took more
than 40 hours of sick leave during his FMLA leave.

      Affirmed.
                      ______________________________




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