                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3637
SUSAN D. HENDRICKS,
                                                Plaintiff-Appellant,
                                 v.

COMPASS GROUP, USA, INC.,
                                               Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
      for the Northern District of Indiana, Lafayette Division.
               No. 03 CV 0079—Allen Sharp, Judge.
                         ____________
      ARGUED APRIL 13, 2007—DECIDED AUGUST 6, 2007
                         ____________


 Before FLAUM, MANION, and WOOD, Circuit Judges.
  MANION, Circuit Judge. Susan Hendricks filed a com-
plaint against her former employer, Compass Group, USA,
Inc. (“Compass Group”), seeking wages to which she
claimed entitlement under the Family Medical Leave Act
and a collective bargaining agreement. The district court
granted Compass Group summary judgment. Hendricks
appeals, and we affirm.
2                                              No. 06-3637

                             I.
  Compass Group employed Hendricks as a utility driver
for Canteen Vending, paying her $12.23 per hour. As a
utility driver, Hendricks performed maintenance duties
and traveled to businesses where Compass Group’s
vending machines were located to fill, repair, and clean
those machines. On June 2, 2003, she suffered a rotator
cuff injury while at work. After her injury, Hendricks
applied for workers’ compensation benefits. She did not,
however, apply for leave pursuant to the Family Medical
Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), until Septem-
ber 3, 2003. Instead of taking FMLA immediately after her
injury, she elected to take light duty under her workers’
compensation program.1
  Hendricks returned to work one week after her injury,
but was unable to resume her duties as a driver so she
went on light duty. While on light duty, Hendricks did
office work for twenty-five hours per week earning $9.00
per hour. A few weeks later, on July 28, 2003, Hendricks
had surgery on her shoulder, and three days later, she
requested to return to work on light duty. Her doctors
restricted her from lifting over ten pounds, lifting above
her shoulder, and repetitive lifting. Hendricks worked in
this light duty capacity until the cessation of her employ-
ment with Compass Group in March 2004.
  Hendricks filed suit seeking recovery of the $3.23 per
hour pay differential between her wages as a utility driver
and her wages while on light duty. She asserted that
while on light duty she was entitled to receive the pay rate


1
 It is unclear from the record whether Hendricks ever took
FMLA leave.
No. 06-3637                                                3

she had received as a utility driver under both the FMLA
and the collective bargaining agreement (“CBA”). The
district court granted Compass Group’s motion for sum-
mary judgment, concluding that FMLA leave is unpaid
leave and that the CBA did not entitle Hendricks to
payment of the wage rate differential. Hendricks appeals.


                             II.
  We review a district court’s grant of summary judg-
ment de novo. Vallone v. CNA Fin. Corp., 375 F.3d 623, 631
(7th Cir. 2004) (citation omitted). All reasonable inferences
from the evidence are drawn in the light most favorable to
the non-moving party. Id.
  “The FMLA guarantees qualifying employees twelve
weeks of unpaid medical leave each year.” Repa v. Roadway
Express, Inc., 477 F.3d 938, 940 (7th Cir. 2007) (citing
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 84
(2002)); see 29 U.S.C. § 2612(a)(1). An employee may re-
ceive compensation while on FMLA leave either through
the use of sick or vacation leave or through a workers’
compensation program. Repa, 477 F.3d at 941 (citing 29
U.S.C. § 2612(d)(2)). An employer may require an em-
ployee to use sick or vacation leave concurrently with
his FMLA leave, but may not do so if the employee is
receiving pay through workers’ compensation. Id. (citing
29 C.F.R. § 825.207(d)(2)). Also, a “workers’ compensa-
tion absence and FMLA leave may run concurrently . . . .”
29 C.F.R. § 825.702(d)(2). Under some workers’ compensa-
tion programs, however, a health care provider may
certify that an employee is able to return to “light duty”
work, and an employee is free to accept that light duty
work or continue on unpaid FMLA leave. If the employee
4                                                No. 06-3637

elects to continue on unpaid FMLA leave, he may no
longer be entitled to collect payment under his workers’
compensation program. Id. An employee, though, may not
waive his rights under the FMLA, whether on his own or
through his employer’s inducement. 29 C.F.R. § 825.220(d).
      For example, employees (or their collective bargaining
      representatives) cannot “trade off” the right to take
      FMLA leave against some other benefit offered by the
      employer. This does not prevent an employee’s volun-
      tary and uncoerced acceptance (not as a condition of
      employment) of a “light duty” assignment while
      recovering from a serious health condition (see
      § 825.702(d)). In such a circumstance the employee’s
      right to restoration to the same or an equivalent posi-
      tion is available until 12 weeks have passed within the
      12-month period, including all FMLA leave taken and
      the period of “light duty.”
Id.
  After an employee has completed his FMLA leave, the
FMLA also requires an employer restore an employee to
the position held at the time FMLA leave began or “an
equivalent position with equivalent employment benefits,
pay, and other terms and conditions of employment.” 29
U.S.C. § 2614(a)(1). However, “[i]f the employee is unable
to perform an essential function of the position because
of a physical or mental condition, including the continua-
tion of a serious health condition, the employee has no
right to restoration to another position under the FMLA.”
29 C.F.R. § 825.214(b). Finally, if there is an employment
benefit program that provides an employee leave rights
greater than that afforded by the FMLA, the employer
“must observe” such a program. 29 C.F.R. § 825.700.
No. 06-3637                                                 5

  Hendricks argues that while she was working on “FMLA
light duty” for $9.00 an hour she was entitled to the $12.23
an hour that she was paid as a utility driver. Citing C.F.R.
§ 825.220(d), Hendricks asserts that she “did not take
traditional ‘leave’ under the FMLA, but instead sub-
stituted light duty work in lieu of leave.” Hendricks
acknowledges that there are no statutes or regulations that
directly support her conclusion, but contends that her
position is “in line with 29 U.S.C. §§ 2612(a)(1), 2614(a)(1),
guaranteeing placement in an equivalent position upon
her return from FMLA leave.”
  Hendricks’s reading of the statutes and regulations is
incorrect. There is no such thing as “FMLA light duty”
whether pursuant to the statutes or their corresponding
regulations. To the extent that “light duty” is mentioned in
the regulations, it is as a component of a workers’ compen-
sation program. See 29 C.F.R. §§ 825.220(d) and 825.702(d)
(providing that an employee may take “light duty” under
workers’ compensation or may continue with unpaid
FMLA leave). These regulations do not address the rate of
pay an employee is to receive while on “light duty”
because that matter is covered by workers’ compensation
and not by the FMLA. While an employee may receive
payment through workers’ compensation benefits while on
FMLA leave and an employer may not require an em-
ployee to use paid leave time while receiving workers’
compensation, see 29 C.F.R. § 825.207(d), the FMLA does
not require an employer to pay a certain pay rate while
the employee is on leave; the FMLA only requires that
an employer permit an employee to take up to twelve
weeks of unpaid leave for illness and return to his prior
post or an equivalent position.
  While the FMLA requires that an employee be able to
return to the same or equivalent position and pay rate that
6                                                 No. 06-3637

he held prior to going on FMLA leave, such a require-
ment only applies if the employee is able physically to
perform the functions and duties of that position. 29 C.F.R.
§ 825.214(b). Even if Hendricks took FMLA leave (and it is
not clear whether or not she did), Hendricks was unable
physically to perform the duties of a utility driver, and
thus she was not entitled to return to the same or equiva-
lent position. Accordingly, the district court did not err
in granting summary judgment in favor of Compass
Group on Hendricks’s FMLA claim.
  Hendricks also contends that she is entitled to recover
wages under the CBA. Specifically, Hendricks relies on the
CBA provision: “Employees who work on a temporary
basis in a lower paid classification shall retain their regular
rate.” Compass Group responds that Hendricks did not
work in a light duty position temporarily, but rather
consistently from the time of her accident in June 2003
until the end of her employment with Compass Group.
Compass Group also states that the CBA uses the
term“classification,” not light duty, and therefore is not
applicable to Hendricks’s situation. Specifically, Compass
Group states that there are six classifications in the CBA
and because light duty is not one of them, Hendricks is not
entitled to the same pay rate she received as a utility
driver.
   Like her FMLA claim, Hendricks’s claim under the CBA
also fails because she has not established that light duty is
a classification under the CBA or that she was employed
in light duty on a temporary basis. The classifications
listed in the CBA are: maintenance, utility, warehouse,
vending attendant, V.A. #1, and V.A. #2. Light duty is not
listed as a classification. Hendricks fails to present evi-
dence of her work classification prior to her injury and her
No. 06-3637                                                7

work classification while she was on light duty. Further,
she does not argue that she fell within any of the CBA
classifications while she was on light duty. Also, Hendricks
performed light duty for the remainder of her employ-
ment with Compass Group after her injury, a period of
nearly ten months. She never again worked as a utility
driver, and she did not present evidence that she planned
or was able to return to a such a position. Therefore,
Hendricks has failed to establish that she was entitled
under the CBA to her utility driver pay rate while she
was working on light duty.


                            III.
  The FMLA does not provide for paid leave nor does it
dictate the wage rate for an employee to receive while on
light duty under a workers’ compensation plan. Light duty
also is not covered by Compass Group’s CBA. Accordingly,
we AFFIRM the district court’s grant of summary judg-
ment to Compass Group.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-6-07
