DeLong v. Trujillo, No. 99SC807.

• Docket Nº: No. 99SC807.
• Citation: 25 P.3d 1194
• Case Date: June 25, 2001
• Court: Supreme Court of Colorado

25 P.3d 1194

James DELONG & the City & County of Denver, Petitioners,
v.
Robert TRUJILLO, Respondent

No. 99SC807.

Supreme Court of Colorado, En Banc.

June 25, 2001.

25 P.3d 1195

J. Wallace Wortham, Jr., City Attorney Richard A. Stubbs, Assistant City Attorney, Denver, CO, Attorneys for Petitioners

John R. Palermo, Denver, CO, Attorney for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

In this case we construe for the first time the Family Medical Leave Act, 29 U.S.C. §§ 2601 to 2654 (2000) ("FMLA"). As relevant here, the FMLA provides that an employee may take reasonable leave, up to twelve weeks in a twelve-month period, to care for a parent who has a serious health condition. 29 U.S.C. § 2612(a)(1)(C).

In the case before us, an employee was dismissed from his employment because he took FMLA leave without following the appropriate procedures for taking such leave and for failing to call in his absences on a daily basis. The court of appeals ordered the reinstatement of the employee, concluding that the dismissal violated the provisions of FMLA. DeLong v. Trujillo, 1 P.3d 195 (Colo.App.1999).

We determine that, under FMLA's interim regulations applicable to this case, an employee who has actual knowledge of an employer's requirements for taking FMLA leave may be disciplined for failing to comply with these requirements. We also conclude that an employer may assert that an employee is not covered by FMLA if the employee fails to produce medical certification of his or her relative's serious health condition. Finally, we find that an employer's requirement that an employee periodically report his or her absences is not inconsistent with the provisions of the FMLA and therefore an employer does not violate FMLA when it disciplines an employee for failing to follow such a procedure.

I.

The history of this case is as follows. The City and County of Denver ("City") employed the respondent, Robert Trujillo ("Trujillo"), for fifteen years before dismissing him on April 1, 1995. Between December 1993 and March 1995, Trujillo took three leaves of absence. Prior to these absences, the City had issued Trujillo three written reprimands for attendance problems and another written

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reprimand for refusing to follow a direct order from an authorized supervisor

Trujillo took his first leave ("Leave I") from December 12, 1993, through March 5, 1994, to take care of his ailing mother. He took additional time off to care for his mother from November 25, 1994, until January 30, 1995, when his mother died ("Leave II"). Trujillo did not return to work after his mother's death, spending the additional time settling his mother's estate and caring for his father ("Leave III").

At the beginning of Leave I, Trujillo provided the City with a note from his mother's heart specialist explaining that a leave of absence was required so that Trujillo could care for his mother who was seriously ill. Leave I was Trujillo's first leave of absence under the provisions of the FMLA, and provided him with his first exposure to the City's requirements for such leave.

Trujillo did not submit a request for FMLA leave prior to taking Leave II, claiming that he did not submit the proper paperwork because the leave was unforeseeable; Trujillo commenced Leave II when his mother was rushed to the hospital with serious health problems. During Leave II, Trujillo followed the standard City absentee procedure and called his supervisor on a daily basis, informing his supervisor that he would be absent from work that day and stating the reason for the absence. After Trujillo had been absent from work for a month without requesting a leave of absence, the City asked him to submit a request for leave according to the City's FMLA procedures. The City received such a request for leave on February 3, 1995. The physician who was treating Trujillo's mother signed the leave of absence request, and stated that the leave was necessary so that Trujillo could care for his terminally ill mother. The City retroactively approved the leave request.

Trujillo's mother died on January 30, 1995. Following her death, Trujillo had several conversations with Jim Thomas, an administrative director with the City. Trujillo and Thomas had different recollections of the conversations. The hearing officer who reviewed this case when Trujillo appealed his dismissal, credited Thomas's version of the conversations. On January 31, 1995, at his mother's funeral, Trujillo informed Thomas that he was concerned about caring for his father who was having problems adjusting to life without his wife. Thomas explained to Trujillo that this was not an appropriate time to discuss his employment and that he should not worry about his job.

After January 31, Trujillo stopped calling his supervisor on a daily basis and initiated no further contact with the City. On February 10, 1995, Thomas contacted Trujillo and informed him that his FMLA leave to care for his mother had ended when his mother died. Thomas explained to Trujillo that his absences subsequent to January 30 would therefore be treated as unauthorized unless he submitted a new request for FMLA leave. Trujillo was told that until he submitted such a request he would be considered to be on unauthorized "Leave Without Pay" status and that there would be serious consequences if he remained absent from work. Trujillo also was informed that he still was required to call his supervisor every workday to explain his absence or he would be in violation of City procedures. Thomas emphasized that such a violation could jeopardize Trujillo's future employment with the City. Thomas repeated the warnings to Trujillo and asked him if he understood what he had been told; Trujillo answered in the affirmative. After the conversation, Thomas faxed Trujillo the appropriate paperwork to request family medical leave.

Even after these events, Trujillo failed to call in any of his absences or submit a new FMLA request form. On March 14, 1995, a disciplinary meeting was held at which Trujillo and his union representative met with Thomas and Trujillo's direct supervisor. After the meeting, Thomas recommended that Trujillo be terminated because he had: (1) failed to call in his absences to his supervisor even though he had been instructed to do so; (2) previously been reprimanded for abusing the City's sick leave policies; and (3) previously failed to comply with directives from a supervisor.

On March 16, the physician treating Trujillo's father submitted a letter to the City. The

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letter stated that Trujillo required a leave of absence after his mother's death so that he could manage his mother's estate and care for his father, whose health had deteriorated after his wife's death. The letter made no mention as to whether Trujillo's father had a serious health condition. On April 1, 1995, the City terminated Trujillo's employment. According to the City, Trujillo was terminated for being absent from work without requesting leave and for failing to comply with a supervisor's directive to follow the City's call-in procedure during his absence. Specifically, the grounds for immediate termination, as provided for in Denver Career Service Rule 16-22, were neglect of duty, failure to comply with a supervisor's orders and department policies, unauthorized absence from work, and abuse of sick leave

Trujillo appealed his dismissal to the City's Career Service hearing office who overturned Trujillo's dismissal. The hearing officer determined that the City failed to adhere to FMLA regulations in terminating Trujillo, and therefore, his firing was invalid. The Career...