DeLong v. Trujillo

1 P.3d 195, 1999 WL 373939

• Court: Colorado Court of Appeals
• Decided: May 30, 2000
• Docket: 97CA1652
• Status: Published

Opinions

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 1998 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 1998, 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The hearing officer concluded that defendant's termination violated the FMLA and rescinded the termination.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, 718 P.2d 987 (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 T58 (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. Subsequent ly, 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 recodi-fied with the same section numbers and subsections.

Ii. FMLA Leave Provisiofis

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.FB.R. § 825.101(@) (1998). 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)(8) (1998).

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. § 825.3083(a) (1993). e -

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 cireumstances 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 14832 (11th Cir.1997); see Manmel v. Westlake Polymers Corp., 66 F.8d 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 CFR. $ 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 CFR. § 825.801(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 CFR. § 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) (employer may not interfere with, restrain, or deny the exercise of or attempt to exercise any right under FMLA).

In addition to providing written guidance to the employee concerning the expectations and obligations of the employee under the FMLA, an employer may require that an employee supply a medical certification issued by the health care provider of the employee or the employee's ill family member. 29 C.F.R. § 825.305(a). "An employer must give written notice of a requirement for medical certification in a particular case, but an employer's verbal request to an employee to furnish any subsequent medical certification is sufficient." 29 C.F.R. $ 825.805(a) (1998).

Further, 29 CFR. § 825.8305(c) (1998) {now codified as 29 CFR. § 825.305(d) (1998)) provides:

At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification. The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.

The employer must allow the employee at least 15 calendar days to provide the certification requested. 29 CFP.R. § 825.305(a) (19983) (now codified as 29 CFR. § 825.305(b) (1998)).

Finally, an employer's violations of the FMLA or of the regulations constitute an interference with the exercise of rights provided by the FMLA. 29 C.F.R. § 825.220(b) (1993).

From late November 1998 through March 5, 1994, defendant was absent to care for his ailing mother (Leave I). He took a second leave beginning November 25, 1994, again to care for his mother until her death on January 30, 1995 (Leave II). Defendant remained absent from work from January 31, 1995, until March 20, 1995, to care for his father, whose health deteriorated after the death of defendant's mother (Leave IIT).

The hearing officer concluded that:

The [department] granted FML [Act leave] to Appellant between November 19983-March 1994 and again between November 1994 and January 80, 1995. Yet, the [department] did not establish that either time it fully notified Appellant of his rights to FML [Act leave], his obligations in order to secure such leave, or the procedures it expected him to follow.

The hearing officer's findings of fact are supported by the record.

A. Rights and Obligations

At no point was defendant ever informed of, or provided with guidance concerning, his obligations under the FMLA.

While the record is unclear concerning when defendant received FMLA leave for Leave I, it is undisputed that he was granted FMLA leave from the department. It is also unclear whether defendant was required to follow any formal procedure to qualify for FMLA leave during Leave I.

During Leave II, the department realized that no formal request for family medical leave had been submitted for Leave II, and it asked defendant to submit a leave form which defendant, in turn, asked his mother's physician to complete and submit. After the physician submitted the requested medical certification, defendant was retroactively granted family medical leave for Leave II on February 3, 1995.

When defendant spoke with a supervisor on February 10, 1995, the supervisor informed him that the department considered that defendant's family medical leave for Leave II had expired on the date of his mother's death, January 80, 1995. Although the request form for FMLA leave for Leave II was submitted before the death of defendant's mother, it was not approved until after her death. Importantly, while the department's FMLA leave request form contains space to indicate the date of the employee's return to work, defendant apparently indicated that his date of return was "unknown." Further, when plaintiffs retroactively granted defendant leave on February 8, 1995, the approval did not indicate when such approved leave was to end.

Thus, because defendant was not told when his FMLA leave would expire, the department failed to notify him adequately of his rights and obligations under the FMLA, and consequently, it cannot now assert that defendant forfeited his rights under the FMLA, See Sherry v. Protection, Inc., supra (employer could not penalize employee for remaining on leave after death of father where employer did not notify employee that his FMLA leave would expire in the event of his father's death).

B. Medical Certification

In addition to not notifying defendant properly concerning his general rights and obligations under the FMLA, the department failed to provide defendant with written notification of the requirement for medical certification.

During the conversation with his supervisor on February 10, 1995, defendant was informed that he had to submit a new family medical leave request form with supporting documentation from his father's doctor to qualify for family medical leave for Leave III. The supervisor then faxed defendant a family medical leave request form and a memo describing the general requirements for obtaining FMLA leave.

Neither the memo nor the request form satisfied the required written request for medical certification under 29 C.FER. § 825.305 (1993). Neither informed defendant of the necessity of returning the forms by a specific date, nor did the forms advise defendant of the consequences of failing to submit adequate medical certification.

Defendant testified that he had supplied the FMLA certification form to his father's doctor and had asked the doctor to fax it to the agency. However, defendant also testified that he did not learn that the department had not received any medical certification from his father's doctor until after he received a letter from the department dated March 9, 1995, advising him of a pre-disci-plinary meeting concerning his extended absence and failure to call in on a daily basis. This letter was dated 27 days after he had been asked to submit the form, and 22 days before defendant's termination.

Nonetheless, on March 16, 1995, at defendant's request, his father's physician faxed a letter to plaintiffs stating: "[Defendant] has been taking care of the affairs of his deceased mother, as well as, the care of his father. His father's health and welfare have deteriorated since the death of his mother...." Ultimately, the department found this attempt to provide medical certification to be "no more than a return to work slip," and terminated defendant's employment 16 days later.

Therefore, not only was defendant not advised in writing of the potential consequences for failure to submit the required forms and medical certification, he was also not provided with "a reasonable opportunity to cure any such deficiency," as required by 29 C.F.R. § 800.805(c) (1998).

Because plaintiffs did not notify defendant that he had provided inadequate medical certification and did not provide him an opportunity to cure the deficiency, they cannot now complain of the deficiency in the medical certification. See Sims v. Alameda-Contra Costa Transit District, 2 F.Supp.2d 1258 (N.D.Ca1.1998) (employer waives right to argue employee did not have serious medical condition where employer fails to notify employee that medical certification inadequate).

C. Calculation of 12-month Period

As noted above, an employee can claim protection under the FMLA even if the employee has exceeded the 12 weeks allowable under the FMLA in situations where, as here, the employer has violated the notice requirements of the FMLA and the employer's failure to properly notify the employee causes the employee to miscalculate the amount of time he or she has under the FMLA. See Fry v. First Fidelity Bancorpo-ration, supra.

Moreover, when an employee is not informed of the method by which an employer has elected to calculate the 12-month period, the employee should have the benefit of the most favorable calculation allowable under the FMLA. McKiernan v. Smith-Edwards-Dumlap Co., No. CIV. A. 95-1175, 1995 WL 311398 (E.D.Pa.1995).

The FMLA provides four different methods for calculating the 12-month period. An employer may use a calendar year, any fixed 12-month period, the 12-month period forward from the time the employee first takes leave, or a 12-month period determined by measuring backwards from the date an employee uses any family medical leave. 29 C.F.R. § 825.200 (1998).

Here, defendant was not informed as to the method of calculation of the 12-month period. Even though Denver Career Service Rule 11-154 provides that the 12-month period is calculated by measuring forward from the first day on which FMLA leave is taken, nothing in the record indicates that defendant was ever told of this method of calculation, or provided with a copy of Denver Career Service Rules 11.150-11.161 concerning family medical leave.

Additionally, we cannot overlook the leniency with which defendant's request for family medical leave was treated during Leave II. Although individuals are presumed to know the law, see Haynes v. Charnes, 772 P.2d 670 (Colo.App.1989), Leaves I and II exceeded the allowable 12 weeks under the career service method of caleulation, but were nonetheless approved by the department. Significantly, Leave II was granted retroactively even though the department believed he had already exceeded 12 weeks of leave. Further, plaintiffs led defendant to believe that he was eligible for further FMLA leave by advising him to submit a new family medical leave request form for Leave III, concerning his absence attribut, able to his father's illness. Thus, defendant could reasonably have believed the department would approve his request for Leave III, even if it was in excess of the 12-week periods allowed by the FMLA.

We also note that, if the accrual of the 12-month period is calculated based upon a calendar year, defendant did not exceed his allotted time in 1998 or 1995, but did exceed it in 1994. Therefore, defendant could reasonably have believed he had additional leave remaining in 1995 when he was terminated. Thus, we agree with the hearing officer's finding that: "The [department] failed to establish that fit] ever notified Appellant that his 12 weeks of authorized FML [Act leave] would expire by a specific date or that he had to submit a new FML [Act leave] request form by a certain date." - ' |

Therefore, we perceive no abuse of discretion on the part of the hearing officer in finding that the employer violated the notice requirements of the FMLA. j

Inasmuch as defendant has already served the 10-month suspension imposed by the hearing officer, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion, including whether defendant is entitled to an award of back pay. ©

Judge METZGER concurs. Judge CASEBOLT dissents.