                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2006

Sommer v. Vanguard Grp
Precedential or Non-Precedential: Precedential

Docket No. 05-4034




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                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 05-4034


 ROBERT SOMMER, ON BEHALF OF HIMSELF
AND ALL SIMILARLY-SITUATED EMPLOYEES,


                        v.

         THE VANGUARD GROUP;
JOHN DOES 1-10, FICTITIOUS INDIVIDUALS AND
                  ENTITIES

                 Robert Sommer,

                                  Appellant
                    _________

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
               (D.C. No. 04-cv-02682)
   District Judge: The Honorable Jan E. DuBois
                     _________

               Argued July 10, 2006
  Before: SMITH, ALDISERT and ROTH, Circuit Judges.

                 (Filed: August 24, 2006)


William B. Hildebrand, Esq. (ARGUED)
Law Offices of William B. Hildebrand LLC
1040 North Kings Highway, Suite 601
Cherry Hill, NJ 08034

      Counsel for Appellant

Joseph J. Costello, Esq. (ARGUED)
Pam R. Jenoff, Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103

      Counsel for Appellee


               OPINION OF THE COURT


ALDISERT, Circuit Judge.

       This appeal by Robert Sommer, a former employee of
The Vanguard Group, Inc., presents a question of first
impression regarding the construction of the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, and the
corresponding Department of Labor (“DOL”) regulations. We

                              -2-
must decide whether Vanguard illegally interfered with
Sommer’s FMLA rights when, upon his return from
approximately eight weeks of short-term disability FMLA leave,
it did not award him a full annual bonus payment under its
Partnership Plan, but instead awarded him a payment prorated
on the basis of the time he was absent. Central to this question
is a determination of what the bonus program rewards:
employee production or the absence of an occurrence. If it
rewards employee production, then proration for FMLA
absences is generally allowed; if it rewards the absence of an
occurrence (like a safety or perfect attendance bonus), then
proration is not allowed.

        In a summary judgment dated August 10, 2005, the
District Court for the Eastern District of Pennsylvania
determined that the Vanguard Partnership Plan is a production
bonus and that the company had not unlawfully interfered with
Sommer’s FMLA rights by prorating his bonus. We agree and
will affirm.1

                               I.

       Congress enacted the FMLA in 1993 to accommodate
“the important societal interest in assisting families, by
establishing a minimum labor standard for leave.” Churchill v.
Star Enters., 183 F.3d 184, 192 (3d Cir. 1999) (quoting S. Rep.

       1
         The District Court had jurisdiction over this action
pursuant to 28 U.S.C. § 1331 as well as 29 U.S.C. § 2617. We
have jurisdiction to hear this appeal pursuant to 28 U.S.C. §
1291.

                              -3-
No. 103-3 at 4, 1993 U.S.S.C.A.N. at 6-7). Congress’ stated
purposes for the act are “(1) to balance the demands of the
workplace with the needs of families, to promote the stability
and economic security of families, and to promote national
interests in preserving family integrity; [and] (2) to entitle
employees to take reasonable leave for medical reasons, for the
birth or adoption of a child, and for the care of a child, spouse or
parent who has a serious health condition; . . .” 29 U.S.C. §
2601(b)(1), (2). To accomplish these goals, the FMLA grants
an “eligible employee” the right to 12 work-weeks of leave over
any 12-month period because of, among other things, “a serious
health condition that makes the employee unable to perform the
functions” of the employee’s position. § 2612(a)(1). After a
period of qualified leave, an employee is entitled to
reinstatement to his former position or an equivalent one with
“equivalent employment benefits, pay and other terms and
conditions of employment.” § 2614(a)(1). Moreover, the taking
of FMLA leave, “shall not result in the loss of any employment
benefit accrued prior to the date on which leave commenced.”
§ 2614(a)(2). This right is limited, however, by the proviso that
the restored employee shall not be entitled to “the accrual of any
seniority or employment benefits during any period of leave[,]
or . . . any right, benefit, or position of employment other than
any right, benefit, or position to which the employee would have
been entitled had the employee not taken the leave.” §
2614(a)(3)(A), (B).

        To protect these rights, the FMLA declares it “unlawful
for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided” in the FMLA.
§ 2615(a)(1). Such a claim is typically referred to as an

                                -4-
“interference” claim, and is acknowledged to “set floors for
employer conduct.” Callison v. City of Philadelphia, 430 F.3d
117, 119 (3d Cir. 2005). To deter such interference, Congress
has provided that an employer may be found liable for civil
damages that include: compensatory damages for any wages,
salary, employment benefits or other compensation lost by
reason of the violation; and liquidated damages.            §
2617(a)(1)(A).

       To assert an interference claim, “the employee only needs
to show that he was entitled to benefits under the FMLA and
that he was denied them.” Callison, 430 F.3d at 119 (citing 29
U.S.C. §§ 2612(a), 2614(a)). “Under this theory, the employee
need not show that he was treated differently than others[, and]
the employer cannot justify its actions by establishing a
legitimate business purpose for its decision.” Id. at 119-120.
“An interference action is not about discrimination, it is only
about whether the employer provided the employee with the
entitlements guaranteed by the FMLA.” Id. at 120. Because the
FMLA is not about discrimination, a McDonnell-Douglas
burden-shifting analysis is not required. See Parker v.
Hanhemann Univ. Hosp., 234 F. Supp. 2d 478, 485 (D.N.J.
2002) (citing Hodgens v. Gen’l Dynamics Corp., 144 F.3d 151,
159 (1st Cir. 1998)).

                              II.

        Addressing unlawful FMLA interference, the DOL has
stated that it includes “not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave.” 29



                              -5-
C.F.R. § 825.220(b).2 As for company bonus programs—and,
more specifically, the distinction between absence of occurrence
bonuses (e.g., safety and perfect attendance bonuses) and
production bonuses—the DOL has explained:

       Many employers pay bonuses in different forms
       to employees for job-related performance such as
       for perfect attendance, safety (absence of injuries
       or accidents on the job) and exceeding production
       goals. Bonuses for perfect attendance and safety
       do not require performance by the employee but
       rather contemplate the absence of occurrences.
       To the extent an employee who takes FMLA
       leave had met all the requirements for either or
       both of these bonuses before FMLA leave began,

       2
          Congress has vested the Secretary of Labor with the
authority to “prescribe such regulations as are necessary to carry
out” the provisions of the FMLA. See 29 U.S.C. § 2654.
Accordingly, the DOL’s regulations must be given “controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, 467 U.S. 837, 843-844 (1984); Ciarlante v. Brown
& Williamson Tobacco Corp., 143 F.3d 139, 145 (3d Cir. 1998)
(stating that Chevron deference is due where the statute
expressly delegates “to the Department of Labor the authority to
promulgate regulations interpreting” the statute); Sekula v.
F.D.I.C., 39 F.3d 448, 452 (3d Cir. 1994) (“So long as the
regulation bears a fair relationship to the language of the statute,
reflects the views of those who sought its enactment, and
matches the purpose they articulated, it will merit deference.”).

                                -6-
       the employee is entitled to continue this
       entitlement upon return from FMLA leave, that is,
       the employee may not be disqualified for the
       bonus(es) for the taking of FMLA leave. See §
       825.220 (b) and (c). A monthly production
       bonus, on the other hand does require
       performance by the employee. If the employee is
       on FMLA leave during any part of the period for
       which the bonus is computed, the employee is
       entitled to the same consideration for the bonus as
       other employees on paid or unpaid leave (as
       appropriate). See paragraph (d)(2) of this section.

§ 825.215(c)(2). The referenced subsection (d)(2) provides that
“[a]n employee may, but is not entitled to, accrue any additional
benefits or seniority during unpaid FMLA leave.”               §
825.215(d)(2).

        Although the regulations do not speak specifically to the
proration of bonuses, the DOL has issued several opinion letters
detailing how companies should compute the bonuses of those
employees who take FMLA leave.3

       3
         See DOL Op. Ltr., FMLA-110, 2000 WL 33157364
(Sept. 11, 2000) (the “2000 DOL Opinion Letter”); DOL Op.
Ltr., FMLA-80, 1996 WL 1044777 (Apr. 24, 1996) (the “1996
DOL Opinion Letter”); DOL Op. Ltr., FMLA-31, 1994 WL
1016739 (Mar. 21, 1994) (the “1994 DOL Opinion Letter”).
Although statements contained in agency opinion letters are not
entitled to Chevron deference, they are “entitled to respect” to
“the extent that those interpretations have the ‘power to

                               -7-
      If a bonus is calculated based on hours worked or
      yearly or monthly earnings, the FMLA leave taker
      would naturally receive a lesser amount.
      Conversely, any methodology for calculating
      bonuses that are not based on worktime or
      accrued earnings cannot be reduced at all for
      FMLA leave takers who qualified for the bonus
      before they started FMLA leave and return to
      work and continue an otherwise perfect record for
      the remainder of the bonus period.

1994 DOL Opinion Letter, n.1. The DOL revisited this question
several years later, again stating:

      Under the FMLA, while an employee is not
      automatically entitled to accrue seniority or
      benefits during unpaid FMLA leave, an employer
      cannot use unpaid FMLA leave as a negative
      factor in employment actions. For example, in the
      case of a monthly “perfect” attendance bonus that
      tracks absences rather than performance, an
      employee who had not missed any time before
      taking unpaid FMLA leave would continue to be
      eligible for the bonus upon returning from FMLA
      leave. Where the amount of the bonus is


persuade.’” See Christensen v. Harris County, 529 U.S. 576,
587 (2000) (citations omitted). Accordingly, although we do not
defer to the DOL FMLA opinion letters here, we do find them
persuasive in guiding our analysis of the Vanguard Partnership
Plan.

                              -8-
       calculated from hours worked, [however] the
       FMLA leave taker would naturally receive a
       lesser amount than an employee who had not been
       on leave.

2000 DOL Opinion Letter; see also id. (“[S]ince bonuses may
be pro-rated based upon hours worked, it would not be a
violation under FMLA to determine the bonus percentage based
only upon the actual hours of work during the monthly rating
period.”).

        The precept that we derive from the regulations and DOL
opinion letters is that although an employer may not reduce an
absence of occurrence bonus paid to an FMLA leave taker if the
employee was otherwise qualified but-for the taking of the
FMLA leave, that employer may prorate any production bonuses
to be paid to an FMLA leave taker by the amount of any lost
production (be it hours or another quantifiable measure of
productivity) caused by the FMLA leave. This rule is an
appropriate application of the admonition found at 29 U.S.C. §
2614(a)(3) that, while on FMLA leave, an employee is not
entitled to the accrual of any right of employment, but is entitled
to those rights of employment “to which the employee would
have been entitled had the employee not taken the leave.”

                               III.

                                A.

      Having set forth the relevant statutory and regulatory
framework, we now turn to the facts of this case. While

                                -9-
employed at Vanguard as a Financial Administrator,4 Sommer
was on short-term disability leave under the FMLA from
December 7, 2000 to February 4, 2001, approximately eight
weeks. He returned to work on February 7, 2001, having used
sick days to cover his absences on February 5-6, 2001. In his
Certification of Health Care Provider Form, submitted in
support of his FMLA leave request, he stated that he was absent
“due to major depression and generalized anxiety,” which
required hospitalization at Underwood-Memorial Hospital PHP.5
App. at A-083. Because of this absence, Vanguard prorated the
bonus payments received by Sommer under both its Partnership
Plan and Bonus Program: reducing his December 2001 Bonus
Program payout by $110.00 and his June 21, 2002 Partnership
Plan payout by $1,788.23. Both bonus payments were for
calendar year 2001.



       4
         Sommer was terminated from Vanguard on May 14,
2004 for misrepresenting that he had taken certain examinations
required for his position.
       5
           In its brief, Vanguard also argues that Sommer
“neglected to present any evidence to the Court that he suffered
from a ‘serious health condition,’ a necessary element of his
FMLA claim.” Vanguard Br. at 8 n.3 (citing 29 U.S.C. §
2612(a)(1)). The District Court declined to address this point
because it held that Sommer’s interference claim failed as a
matter of law. Sommer v. Vanguard Group, 380 F. Supp. 2d
680, 686 n.1 (E.D. Pa. 2005). Because we agree that Sommer’s
interference claim fails as a matter of law, we need not discuss
the merits of this contention.

                              -10-
                               B.

       The Vanguard Bonus Program is not at issue in this
appeal, see infra, section IV, so we will focus exclusively upon
the Partnership Plan. Vanguard created the Partnership Plan in
1984 to “recognize crew members’ contributions to Vanguard’s
growth and success in a tangible way,” and to allow employees
“to share in Vanguard’s growth and financial success.”
Vanguard Partnership Plan Policy (hereinafter “Policy”), app. at
A-058. The amount that the company will distribute annually
under the Plan depends upon              Vanguard’s operating
performance, its competitors’ operating performance, the
performance of the securities markets, the investment
performance of the Vanguard funds and company earnings. Id.
at A-058; Articles of the Vanguard Group, Inc. Partnership Plan
(hereinafter “Articles”), app. at A-071. Company earnings, for
purposes of the Partnership Plan, are calculated by the
company’s compensation committee. Articles, app. at A-071.

       Qualification for the bonus is based on three
requirements: the recipient must be employed (1) on the last
calendar day of the year, (2) on the date of the Plan’s
distribution, and (3) all days in between. Policy, app. at A-058.
The amount a qualifying employee will receive under the Plan
depends upon three criteria: (1) job level, (2) length of service
to the company, and (3) hours worked. Id. at A-058-A-059.
Hours worked, or “Hours of Service” as it is referred to in the
Partnership Plan’s Articles, is defined as:

       [T]he actual hours for which an employee is paid
       or entitled to be paid by the Company for the

                              -11-
      performance of duties or for vacation, holidays,
      sick time, or an approved leave of absence
      (including bereavement leave, court duty leave,
      and military leave). Any employee who is on a
      disability leave of absence under the Company’s
      short-term or long-term disability program shall
      not be credited with Hours of Service during such
      leave of absence.

Articles, app. at A-066-A-067.

       If an employee does not meet the annual goal for hours
worked, 1,950 hours, his or her Partnership Plan payment is
prorated by the amount of hours that he or she is deficient.
Partnership and Leaves of Absence Q & A (hereinafter “Q &
A”), app. at A-063. Vanguard explains its proration policy as
follows:

      How is my Partnership payment impacted by
      a leave of absence?

      The Partnership payment is based on hours
      worked during the plan year. Time spent on leave
      is not considered time worked for purposes of
      calculating your Partnership payment. The basic
      proration is based on the following formula:
      number of hours worked divided by full-time
      hours (1,950) = proration percentage. . . .

                            ***



                            -12-
       How many days can I be on leave before my
       Partnership is prorated?

       The Partnership payment is always prorated for
       the leave time no matter how short the amount of
       time the [employee] is on leave, from a few hours
       to a few months. However, vacation and sick
       time, typically used during the elimination period,
       are considered time worked for purposes of
       calculating the Partnership payment.

Id. at A-063-A-064 (emphasis in original). As indicated,
vacation and sick leave are considered hours worked under the
Partnership Plan; most other forms of leave are treated
differently. Vanguard prorates the bonus amount of a qualifying
employee if that employee retired from Vanguard or was on
“Short-Term Disability (STD), Long-Term Disability (LTD),
Workers’ Compensation, or Family and Medical Leave (FMLA)
in the Plan year, or [is] on one of these leaves at distribution
time[.]” Policy, app. at A-059-A-061 (emphasis added). Those
who take personal leave and unpaid court leave also have their
bonuses prorated. Id. at A-061.

                              IV.

        On June 17, 2004, Sommer filed a complaint in the
United States District Court for the Eastern District of
Pennsylvania that alleged that Vanguard interfered with his
rights under the FMLA, in violation of 29 U.S.C. § 2615(a)(1),
by prorating his Partnership Plan and Bonus Program payments
for the time he spent on FMLA leave. He sought compensatory

                              -13-
damages for his lost income and benefits, liquidated damages,
costs and attorney’s fees. On October 4, 2004, Sommer
amended his complaint and added two claims: (1) that
Vanguard’s proration policy interfered with the FMLA rights
held by all similarly-situated employees, and (2) that in violation
of 29 U.S.C. § 2615(a)(2), Vanguard illegally retaliated against
Sommer for his objection to Vanguard’s proration policy by
ceasing the medical benefits that he had been receiving after the
date of his termination.

          On November 18, 2004, Sommer filed a motion for
leave to file a second amended complaint adding class
allegations, which the Court denied without prejudice in an
order filed December 6, 2004. It held that before it would
address the propriety of bringing this suit as a class action, as
distinguished from a collective action, it would first address the
underlying FMLA legal issue. Sommer and Vanguard
consequently filed cross-motions for summary judgment on the
issue of FMLA liability on February 28, 2005 and March 14,
2005, respectively. On August 10, 2005, the District Court
entered an order denying Sommer’s motion, granting
Vanguard’s, and entering judgment in favor of Vanguard.
Sommer v. Vanguard Group, 380 F. Supp. 2d 680 (E.D. Pa.
2005). The Court held that (1) Vanguard’s proration of
Sommer’s Partnership Plan bonus did not interfere with his
FMLA rights because the Partnership Plan is a production
bonus, for which proration is allowed, (2) Sommer’s FMLA
claim regarding the legality of Vanguard’s proration of his
Bonus Program payment was barred by the FMLA’s two-year
statute of limitations, and (3) his retaliation claim failed because
Sommer failed to show any causal connection between the

                               -14-
termination of his medical benefits and his FMLA challenges.

       Sommer now appeals the District Court’s ruling that
Vanguard’s proration of his Partnership Plan payments does not
interfere with his FMLA rights. He also appeals the Court’s
denial of his motion for leave to file a second amended
complaint. He does not appeal the Court’s denial of his Bonus
Program FMLA claim or his retaliation claim.

                               V.

          Because this is an appeal from a grant of summary
judgment, our review is plenary. Oritani Sav. & Loan Ass’n v.
Fid. & Deposit Co. of Maryland, 989 F.2d 635, 637 (3d Cir.
1993). “On review[,] the appellate court is required to apply the
same test the district court should have utilized initially.” Id.
(citation and quotations omitted). “A court may grant summary
judgment only when the submissions in the record ‘show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’” Id.
(quoting Rule 56(c), Federal Rules of Civil Procedure). “In
determining whether summary judgment is appropriate, ‘[t]he
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.’” Id. (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The inquiry
is ‘whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’” Id. (quoting
Anderson, 477 U.S. at 251-252).




                              -15-
                              VI.

        Although the FMLA has been in effect for over ten years,
this is the first case in which an appellate court has been
required to distinguish between the two classifications of
company bonus programs for purposes of an FMLA interference
action. Sommer contends that the District Court erred in
rejecting his argument that Vanguard’s policy of mandatorily
prorating the Partnership Plan bonus payments of those
employees who take FMLA leave unlawfully interferes with
those employees’ FMLA rights. Specifically, he contends that
the District Court incorrectly classified the Partnership Plan as
a bonus program that rewards employees for production (under
which proration for time spent on FMLA leave is allowed) and
not for the absence of an occurrence (under which proration is
not allowed). He argues that Partnership Plan eligibility is only
contingent upon the employee remaining employed during the
period in which the bonus is calculated, which means that the
bonus program rewards the absence of an occurrence (i.e., not
leaving or getting fired). For support, he analogizes this bonus
program to the “stay bonus” considered in Dierlam v. Wesley
Jessen Corp., 222 F. Supp. 2d 1052 (N.D. Ill. 2002). There, the
district court determined that a company’s “stay bonus” was an
absence of an occurrence bonus because it was rewarding
continued employment during a period of company-wide
transition and was not contingent on an employee meeting any
production goals or quality standards. See id. at 1057.

       Although it is often difficult to sift through the jargon-
laden terms of a company’s bonus program documents to
ascertain the goal actually being rewarded, here we agree with

                              -16-
the District Court that the Partnership Plan is more akin to a
bonus program that rewards employee production. Production
bonuses are those types of bonus programs that “require some
positive effort on the employee’s part at the workplace,” as
distinguished from a bonus that merely rewards an employee for
“compliance with rules.” 1994 DOL Opinion Letter. Here,
Vanguard’s focus throughout its policy appears to be on
incentivizing employees to contribute to Vanguard’s
performance and production by meeting a predetermined hours
goal—1,950 hours a year. See, e.g., Q & A, app. at A-063
(“The Partnership Plan is designed to recognize a crew
member’s contributions to Vanguard’s growth and success.
During the time that the crew member is on a leave, that crew
member is not actively contributing to Vanguard’s overall
performance.”). Vanguard then communicates this production
goal to the employees throughout the policy—especially by
indicating that qualifying employees’ bonus amounts are based
on hours worked and will be prorated for every hour that they
are under the annual goal. See id., app. at A-063-A-064. (“The
Partnership payment is based on hours worked during the plan
year. . . . The Partnership payment is always prorated for the
leave time no matter how short the amount of time the crew
member is on leave, from a few hours to a few months.”)
(emphasis in original). An employee who works 1,950 hours
has met the target production goal, and receives a full bonus.
An employee who has less than 1,950 hours worked naturally
receives a lesser bonus. Sommer’s argument that the Plan is an
absence of an occurrence bonus because qualification hinges
upon continued employment ignores the simple fact that, beyond
the Plan’s qualification requirements, there is an hours-based
annual production requirement. Accordingly, we agree with the

                             -17-
District Court that the Partnership Plan is a production bonus
program and that the proration of its payments for those who
take FMLA leave is allowed.

                              VII.

        In the alternative, Sommer argues that even if the
Partnership Plan is a production bonus, Vanguard’s proration
policy still interferes with his FMLA rights because the
company prorates the bonuses of those who take unpaid forms
of FMLA leave but does not similarly prorate the bonuses of
those who take paid forms of leave, such as vacation or sick
leave. He contends that this disparate treatment violates the
mandate of § 825.215(c)(2) that FMLA leave-taking employees
be afforded “the same consideration” as those who go “on paid
or unpaid leave.” Sommer argues that this disparate treatment
interferes with employees’ FMLA rights because it discourages
employees from using such leave. See 29 C.F.R. § 825.220(b)
(stating that “interference” constitutes “not only refusing to
authorize FMLA leave, but discouraging an employee from
taking such leave”)

       The District Court rejected this argument, concluding that
although Vanguard prorates the Partnership Plan bonuses of
those who take FMLA leave and does not do so for those who
take vacation or sick leave, this disparate treatment does not
violate the final clause of § 825.215(c)(2) because Vanguard
also prorates “a variety of non-FMLA leaves of absence
including long-term disability, workers compensation, personal
leave, and unpaid court leave.” Sommer, 380 F. Supp. 2d at
685. Because FMLA leave is but one of many forms of leave

                              -18-
which triggers proration, the Court reasoned, Vanguard
complied with the mandate of § 825.215(c)(2) that those
employees who take FMLA leave be afforded “the same
consideration for the bonus as other employees on paid or
unpaid leave (as appropriate).” Id.

       We agree with the District Court that—as to calculating
bonus amounts, and specifically proration—§ 825.215(c)(2)
does not require the equal treatment of those who take unpaid
forms of FMLA leave and those who take paid leave. First,
reading the regulation as a whole, § 825.215(c)(2) is concerned
solely with the question of qualification and consideration for
bonuses, not their calculation or proration. Indeed, neither
calculation nor proration is mentioned in subsection (c)(2).

       Second, for us to conclude that subsection (c)(2) requires
employers to calculate the production bonuses of those who take
unpaid forms of FMLA leave the same as those who take paid
leave would violate the very terms of the FMLA. See 29 U.S.C.
§ 2614(a)(3)(A), (B) (stating that an FMLA leave taker shall not
be entitled to “the accrual of any seniority or employment
benefits during any period of leave[,] or . . . any right, benefit,
or position of employment other than any right, benefit, or
position to which the employee would have been entitled had
the employee not taken the leave.”). Sommer took short-term
disability FMLA leave. Had he not designated that short-term
disability leave as FMLA leave, he still would have had his
bonus prorated. By comparison, if his short-term disability
FMLA leave were required to be treated the same as vacation or
sick leave, which are not prorated, Sommer would then be
accruing rights or benefits that would not otherwise have been

                               -19-
available to him if he had designated the leave only as short-
term disability and not as FMLA leave. Such a result is clearly
incompatible with the terms of § 2614(a)(3)(A), (B).

        Finally, we observe that, were we to agree with
Sommer’s argument, its practical application would create an
anomaly. Sommer’s interpretation would mean that FMLA
leave—regardless of the underlying leave classification—would
effectively be put on par with vacation and sick leave, which are
almost always treated differently than other forms of leave (i.e.,
workers’ compensation, short-term disability and long-term
disability leave). Employers would then be faced with the
choice of providing full production bonuses to those employees
who potentially miss up to 12 weeks of work in a 12-month
period, or prorating the production bonuses of all employees
who take accumulated vacation or sick leave. We do not believe
that Congress intended such a result, especially in light of its
admonishment that no employment right or benefit shall accrue
to an employee on FMLA leave, and that FMLA leave takers are
entitled to no rights or benefits other than those to which the
employee would have been entitled had the employee not taken
the FMLA leave. See 29 U.S.C. § 2614(a)(3); see also Price v.
City of Fort Wayne, 117 F.3d 1022, 1022 (7th Cir. 1997) (“The
goal [of Congress in enacting the FMLA] was not to supplant
employer-established sick leave and personal leave policies, but
to provide leave for more uncommon and, presumably,
time-consuming events such as having or adopting a child or
suffering from what is termed a ‘serious health condition.’”).

     Accordingly, we reject Sommer’s argument that
Vanguard’s policy of prorating the Partnership Plan payments

                              -20-
of those who take FMLA leave, but not the payments of those
who take paid leave, impermissibly interferes with his protected
FMLA rights.6

                            *****

       In conclusion, we hold that the hours-based Vanguard
Partnership Plan is a bonus program designed to reward
employee production, which may be prorated to account for the
hours not worked by those employees who take FMLA leave.
Accordingly, Vanguard’s proration of Sommer’s Partnership
Plan bonus for the time he spent on short-term disability FMLA
leave did not interfere with his FMLA rights.

       We will affirm the judgment of the District Court.




       6
          In light of the foregoing rejection of the legal bases for
Sommer’s FMLA interference claim, we need not reach the
question of whether the District Court exceeded the permissible
bounds of its discretion in denying Sommer’s motion for leave
to file a second amended complaint adding class allegations.

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