                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2009

Dilorio v. Neshaminy Manor
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1758




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                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 07-1758
                                    _____________

                                 DOMINICK DIIORIO,

                                            Appellant

                                            v.

                                NESHAMINY MANOR




                    On Appeal From the United States District Court
                        for the Eastern District of Pennsylvania
                                 (Civil No. 06-cv-02400)
                       District Judge: Honorable John P. Fullam

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 5, 2009

 Before: CHAGARES and HARDIMAN, Circuit Judges, and GARBIS,* District Judge.

                                 (Filed: April 1, 2009)
                                 __________________

                              OPINION OF THE COURT
                                __________________




      *
        The Honorable Marvin J. Garbis, Senior District Judge, United States District
Court for the District of Maryland, sitting by designation.
CHAGARES, Circuit Judge.

       Dominick DiIorio appeals the District Court’s grant of summary judgment in favor

of his employer, Neshaminy Manor, and denial of DiIorio’s motion for summary

judgment. DiIorio claims that Neshaminy Manor interfered with his rights under the

Family and Medical Leave Act (“FMLA”) by unlawfully denying benefits that he held

prior to taking a medical leave of absence. We disagree and will affirm the judgment of

the District Court.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts.

       DiIorio was on FMLA leave from January 11, 2005 to April 5, 2005. He contends

that, upon returning to work, he was assigned a less favorable position on the overtime

list than he should have been. Neshaminy Manor offers opportunities to work overtime

according to a rotating list required by a collective bargaining agreement. Appendix

(“App.”) 178-79. The purpose of the list is to give employees roughly equal opportunities

to work overtime. App. 15-16.

       In putting together the overtime list, Neshaminy Manor initially assigns employees

to the list in reverse order of seniority. As opportunities for overtime work are presented,

the employee with the fewest overtime hours is given the opportunity to accept the

overtime assignment. Employees are credited, on the list, with the number of overtime



                                             2
hours they actually work or, if they turn down the assignment, with the number of

overtime hours they could have worked had they accepted the assignment. Thus,

employees cycle through the list, with every employee having a roughly equal opportunity

to work overtime. Every six months, the slate is wiped clean, and the process is repeated.

       Neshaminy Manor has also adopted the practice of placing new hires and persons

who have been absent on leave for more than three weeks in the least favorable position

on the overtime list. Accordingly, when DiIorio returned from leave, he was placed at the

top of the overtime list. As a result, he was not offered overtime until eight days after his

return. Because the list was reconstituted shortly before DiIorio began his FMLA leave,

he was in a better position on the overtime list immediately before commencing his leave

than when he returned.1

       DiIorio filed this lawsuit against Neshaminy Manor on November 14, 2005,

alleging that his post-leave placement at the top of the overtime list interfered with his

rights under the FMLA, and that Neshaminy Manor retaliated against him for taking

FMLA leave. Neshaminy Manor filed a Motion for Summary Judgment and DiIorio filed

a Cross-Motion for Summary Judgment. The District Court granted Neshaminy Manor’s

motion and denied DiIorio’s motion. DiIorio now appeals the District Court’s judgment




       1
        On the day DiIorio commenced his FMLA leave, he had zero hours on the
overtime list. Upon DiIorio’s return to work, he was assigned 172 hours of overtime,
placing him at the top of the overtime list.

                                              3
with respect to his FMLA claim.2

                                             II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

Because DiIorio is appealing from a final judgment, we have jurisdiction pursuant to 28

U.S.C. § 1291.

       When reviewing an order granting summary judgment, “[w]e exercise plenary

review . . . and we apply the same standard that the lower court should have applied.”

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment

is appropriate “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making this

determination, we “view the facts in the light most favorable to the nonmoving party and

draw all inferences in that party’s favor.” Farrell, 206 F.3d at 278. “There must,

however, be sufficient evidence for a jury to return a verdict in favor of the nonmoving

party; if the evidence is merely colorable or not significantly probative, summary

judgment should be granted.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.

1994). “A disputed fact is ‘material’ if it would affect the outcome of the suit as

determined by the substantive law.” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078




       2
        DiIorio did not appeal the District Court’s judgment with respect to the retaliation
claim, so we do not address that issue here.

                                             4
(3d Cir. 1992).

                                             III.

       The FMLA prohibits an employer from interfering with, restraining or denying an

employee his rights under the FMLA. 29 U.S.C. § 2615(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.’” Sommer v. Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006)

(quoting § 2614(a)(1)). Moreover, “[t]he 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). These rights are subject to limitations, however; specifically, a “restored

employee” is not 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).

       DiIorio contends that the District Court erred in holding that Neshaminy Manor

did not interfere with DiIorio’s rights under the FMLA because Neshaminy Manor has

“substantially reduced Mr. DiIorio[’s] access to overtime work by placing him last in line

to receive such work.” Appellant’s Br. 15. DiIorio asserts that the Department of Labor

has issued a regulation, pursuant to its authority under 29 U.S.C. § 2654, that specifically

addresses the issue before this Court. Appellant’s Br. 21-22 . The regulation defines an



                                              5
equivalent position as, inter alia, a position that entitles a person to a similar amount of

overtime work upon return from FMLA leave as was available to that person before the

leave. 29 C.F.R. § 825.215(c)(1); see also 29 C.F.R. § 825.215(c) (“If an employee

departed from a position averaging ten hours of overtime (and corresponding overtime

pay) each week, an employee is ordinarily entitled to such a position on return from

FMLA leave.”).3

       Neshaminy Manor argues that the District Court correctly concluded that

Neshaminy Manor did not interfere with DiIorio’s FMLA rights because DiIorio was

reinstated to the same position with equivalent opportunities for overtime. Appellee’s Br.

15 (“[DiIorio] worked overtime eight days after he returned from leave, which was

consistent with his waiting periods between overtime opportunities for the months prior to

his leave. Further, DiIorio continued to work overtime on a[n] equitable basis as his

coworkers until he voluntarily transferred [to another job].”). Neshaminy Manor

emphasizes that “[w]hat DiIorio seeks is a preferred employment status, or being placed

in a priority position over his coworkers” by being allowed to “[make] up all the

[overtime] opportunities he missed while on leave.” Id. This amounts to an accrual of

benefits during leave, to which employees are not entitled under the FMLA.



       3
         DiIorio also asserts that (1) collective bargaining agreements may not diminish an
employee’s rights to take FMLA leave or waive an employee’s FMLA rights, and (2) the
District Court erred in analogizing the distribution of overtime hours to a production
bonus. We find that the disposition of these issues does not affect the outcome of this
appeal, and therefore do not address these arguments below.

                                               6
       We agree with Neshaminy Manor and will affirm the District Court’s holding.

Even though DiIorio was placed at the top of the overtime list upon his return from

FMLA leave, he was reinstated to the same position and was immediately put back into

the overtime rotation, subject to Neshaminy Manor’s generally applicable overtime

policy. This policy ensured that all Neshaminy Manor employees had roughly equal

opportunities to work overtime. After his leave, therefore, DiIorio had the same

opportunities for overtime as he did prior to taking the leave. See 29 C.F.R. § 825.215(c)

(stating that employees are entitled to be restored to a position with the same average

overtime opportunities). In fact, DiIorio worked overtime only eight days after returning

from leave, and continued to work overtime on an equitable basis as his coworkers until

he voluntarily transferred to another job. Thus, it is simply not true that Neshaminy

Manor “substantially reduced Mr. DiIorio[’s] access to overtime work.” Appellant’s Br.

15.

       Ultimately, in claiming that he should have been credited for zero hours of

overtime upon his return from FMLA leave, DiIorio is not requesting a reinstatement of

his prior overtime benefits (equivalent opportunities for overtime work), but rather, he is

asking to make up all the overtime he missed while he was out on leave. This amounts to

a retroactive accrual of work related benefits to which DiIorio is not entitled under the

FMLA. See 29 U.S.C. § 2614(a)(3)(A). As the District Court correctly noted, the FMLA

mandates that Neshaminy Manor restore DiIorio to his prior position with equivalent



                                              7
benefits, but it does not entitle DiIorio “to be treated as if he had actually worked during

the period of his leave.” DiIorio v. Manor, No. 06-cv-02400-JF, 2007 WL 519252, at *2

(E.D. Pa. Feb. 12, 2006).

       Because DiIorio was reinstated to his position with equivalent opportunities for

overtime, we will affirm the District Court’s judgment.




                                              8
