DeLong v. Trujillo, 97CA1652.

• Decision Date: 10 June 1999
• Docket Number: No. 97CA1652.,97CA1652.
• Citation: 1 P.3d 195
• Parties: James DeLONG and City and County of Denver, Plaintiffs-Appellees, v. Robert TRUJILLO, Defendant-Appellant.
• Court: Colorado Court of Appeals

1 P.3d 195

James DeLONG and City and County of Denver, Plaintiffs-Appellees, v. Robert TRUJILLO, Defendant-Appellant.

No. 97CA1652.

Colorado Court of Appeals, Div. I.

June 10, 1999.

As Modified on Denial of Rehearing September 23, 1999.

Certiorari Granted May 30, 2000.¹

Office of the City Attorney, Daniel E. Muse, City Attorney, Richard A. Stubbs, Assistant City Attorney, Denver, Colorado, for Plaintiffs-Appellees.

Carol M. Iten, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Robert Trujillo, appeals the district court's judgment reversing the decision of the Denver Career Services Board that had reinstated him in his employment by plaintiffs, James DeLong and the City and County of Denver. We reverse and remand with directions.

After having been employed in the Denver Department of Aviation (department) for a period of 15 years, defendant took three leaves of absence between December 1993 and March 1995 to care for his terminally ill mother and ill father. He took his leave under the auspices of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (1999) (FMLA).

On April 1, 1995, defendant was terminated from his employment for neglect of duty, failure to comply with his supervisor's orders and department policies, unauthorized absence from work, and abuse of sick leave. All of these asserted grounds for termination related to defendant's leaves of absence to care for his parents.

A hearing officer of the Career Service Board heard defendant's appeal. During the hearing, evidence was presented that, during defendant's 15 years of employment, he had received several letters of reprimand for excessive absenteeism. The hearing officer also heard testimony that defendant had been asked to call in to work each day he was absent, and that he had failed to do so after the death of his mother.

The hearing officer concluded that defendant's termination violated the FMLA and rescinded the termination. She converted the termination to a 10-month suspension as discipline for "past overuse of leave, for exceeding the allowable Family Medical Leave in 1994-1995, and for his delay in responding to the Agency's written request for medical certification after March 9, 1995."

In considering the evidence concerning defendant's failure to call in on a daily basis, the hearing officer concluded that defendant's failure to call in was not willful. Rather, she concluded that defendant "did not hear or understand that he was not excused from the requirement [of calling in every day]." The hearing officer attributed this misunderstanding to defendant's grief following his mother's death.

The Denver Career Service Board affirmed the hearing officer's decision.

Plaintiffs filed a complaint for judicial review in district court. The trial court found that the hearing officer had applied an improper legal standard in determining that plaintiffs improperly dismissed defendant concluding that defendant was not entitled to the protection of the FMLA for Leave III because he had not established that his father had a serious health condition. The district court expressly declined to consider the issue of defendant's failure to follow the proper procedure for requesting FMLA leave, defendant's failure to comply with the daily call in requirement, and other rule infractions committed by defendant. Thus, it reversed the hearing officer's ruling and remanded for the reinstatement of defendant's termination.

Defendant contends the hearing officer correctly concluded that plaintiffs had violated the notice requirements of the FMLA in three respects. We agree.

The scope of review granted to the district court in a proceeding under C.R.C.P. 106(a)(4) is strictly limited to whether jurisdiction has been exceeded or whether discretion was abused. City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). Moreover, the court of appeals is in the same position as the district court concerning review of the proceedings pursuant to this rule. Empiregas, Inc. v. County Court, 713 P.2d 937 (Colo.App.1985).

A reviewing court may reverse a decision of the administrative agency if it applies an incorrect legal standard or if there is no competent evidence to support the decision. No competent evidence means that the decision of the administrative agency is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995).

I. Interim and Final Regulations

Initially, we consider plaintiffs' contention that the hearing officer erroneously applied final regulations of the FMLA that had not yet taken effect on the date of defendant's termination. We disagree.

The FMLA was enacted in 1993 and implemented by interim regulations. Subsequently, the Department of Labor implemented final regulations which became effective in 1995 — after defendant had been terminated.

Our review of the interim regulations and the final regulations indicates that the interim regulations were substantially the same as the final regulations in all material aspects. Moreover, plaintiffs do not specify any way in which they were prejudiced by the hearing officer's application of final, rather than interim, regulations. Thus, the application of the final regulations was not reversible error. Nonetheless, we will apply the interim regulations. Unless otherwise noted, the final regulations have been recodified with the same section numbers and subsections.

II. FMLA Leave Provisions

The FMLA was enacted to balance the demands of the workplace with the needs of families by allowing employees to take reasonable unpaid leave for medical reasons. 29 C.F.R. § 825.101(a) (1993). The FMLA gives eligible employees the right to take up to 12 weeks of leave during any 12-month period to care for the employee's spouse, son, daughter, or parent with a serious health condition. 29 C.F.R. § 825.112(a)(3) (1993).

The FMLA details the notice employers must provide employees regarding their rights under the FMLA and the notice employees must provide the employer to qualify for leave.

When leave under the FMLA is not foreseeable, the employee should give notice to the employer as soon as practicable under the circumstances. 29 C.F.R. § 825.303(a) (1993).

An employee need not expressly assert rights under the FMLA or even mention the FMLA to provide the employer adequate notice. The employee must only provide the employer with information sufficient to make the employer aware that the absence is attributable to circumstances that would potentially qualify the employee for coverage under the FMLA.

Once the employee notifies the employer of his or her need for leave, it is the employer's obligation to obtain any additional required information. Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir.1997); see Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir.1995) (notice to employer sufficient where employee called to say she could not return to work because of complications from treatment of an ingrown toenail).

While there is no specific requirement that an employer notify the employee of the specific date on which the employee's leave under the FMLA will expire, the employer is required to provide "written guidance" to an employee concerning all the employee's rights and obligations under the FMLA whenever an employee requests leave under the FMLA. The employer must also provide notice to the employee detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet those obligations. 29 C.F.R. § 825.301(b) & (c)(1993) (now codified as 29 C.F.R. § 825.301(a)(2) & (b)(1)(1998)). The requirement of this specific notice was changed from "notice" to "written notice" when the final regulations were promulgated. According to the preamble to the final regulations: "[This] regulation has been changed to make it clear that the notice must be in writing." 60 Fed.Reg. 2180, 2220 (Jan. 6, 1995) (emphasis added). Thus, the Department of Labor intended this change to clarify the interim regulations, not to effect a substantive change.

The more specific notice should state, inter alia, that the leave will be counted against the employee's annual leave entitlement under the FMLA. 29 C.F.R. § 825.301(c)(1) (1993)(now codified as 29 C.F.R. § 825.301(b)(1)(i) (1998)).

If the employer does not provide an employee with the required notice of policies and procedures related to the FMLA, an employee could be unfairly deprived of his or her right to reinstatement under the FMLA. Further, inadequate notice of an employee's rights and obligations can support a claim for violation of the FMLA even where the employee's leave exceeds the allotted 12 weeks. Fry v. First Fidelity Bancorporation, No. CIV.A 95-6019, 1996 WL 36910 (E.D.Pa. Jan.30, 1996) (under interim regulations, court determined that employer's failure to provide adequate notice of its FMLA policies to employees constituted interference with FMLA rights when lack of notice caused employee unknowingly to violate substantive provisions of employer's FMLA policies). Cf. Sherry v. Protection, Inc., 981 F.Supp. 1133 (N.D.Ill.1997) (under final regulations, where employer failed to notify employee of rights and obligations under FMLA, employer could not take action against employee for failure to comply with provisions required to be set forth in notice).

The final regulations added 29 C.F.R. § 825.301(f) (1998), which states that: "If an employer fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." However, this provision only reinforces what was implicit in the interim regulations. See Fry v. Fidelity Bancorporation, supra. See also 29 U.S.C. § 2615(a)(1) (1994)...