Filed: Apr. 01, 2009
Latest Update: Mar. 02, 2020
Summary: 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United 2009 Decisions States Court of Appeals for the Third Circuit 4-1-2009 Dilorio v. Neshaminy Manor Precedential or Non-Precedential: Non-Precedential Docket No. 07-1758 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Dilorio v. Neshaminy Manor" (2009). 2009 Decisions. Paper 1608. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1608 This decision is brought to you for free and open access by the Op
Summary: 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United 2009 Decisions States Court of Appeals for the Third Circuit 4-1-2009 Dilorio v. Neshaminy Manor Precedential or Non-Precedential: Non-Precedential Docket No. 07-1758 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Dilorio v. Neshaminy Manor" (2009). 2009 Decisions. Paper 1608. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1608 This decision is brought to you for free and open access by the Opi..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Dilorio v. Neshaminy Manor" (2009). 2009 Decisions. Paper 1608.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1608
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL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
