dissenting.
Because the Career Service Board hearing officer applied erroneous legal standards in rendering her decision, and the termination of defendant's employment is sustainable regardless of plaintiff's violation of the Family and Medical Leave Act, I respectfully dissent.
Defendant was absent from his employment as a heavy equipment mechanic for the City & County of Denver Department of Aviation (department) between the end of November 1998 and March 5, 1994, to care for his mother. The department authorized leave for that period under the auspices of the Family and Medical Leave Act of 1998, 29 U.S.C. § 2601, et seq. (1999) (FMLA).
Defendant was again absent from work because of his mother's illness from November 25, 1994, through January 30, 1995, the date of her death. As required by departmental policy, during that time he regularly reported his absences to the department. The department retroactively approved this FMLA leave on February 3, 1995.
On January 31, 1995, defendant spoke by telephone with his supervisor, mentioning how poorly his father was handling his mother's death. Defendant indicated that he needed additional leave to care for his father. The supervisor told defendant not to worry about his job at that time.
On February 10, 1995, the supervisor notified defendant that the department considered his FMLA leave to have ended when his mother died. The supervisor told defendant to submit another FMLA request for additional leave if he needed to care for his father. The supervisor told defendant that he was "in unauthorized leave without pay status" after his mother had died, and that he would. remain so until a new FMLA request was submitted and approved. He also told defendant that he must call in daily to the department if he remained absent.
The department sent defendant a FMLA form and a memorandum concerning FMLA. Defendant gave his father's doctor the *203FMLA form and asked him to complete it, but he did not check to see whether the doctor timely sent the form to the department.
Defendant did not submit a new FMLA form, nor did the department receive any medical documentation supporting leave from the doctor. After January 31, 1995, defendant also failed to call in his absences from work as required.
On March 9, 1995, the department delivered a letter to defendant indicating that it was contemplating discipline against him for failing to return to work, failing to call in his absences, and failing to submit another FMLA request form after February 10, 1995. On March 14, 1995, the department held a pre-disciplinary meeting in which defendant acknowledged that he had not reported his absences daily. At that time, defendant first learned that his father's doctor had not submitted the required medical certification. Upon his request, the doctor submitted a letter on March 16, 1995, indicating that defendant had been taking care of his father.
On March 31, 1995, the department dismissed defendant because of neglect of duty, failing to comply with his supervisor's orders and department policies, unauthorized absence from work, and abuse of sick leave. Upon appeal to the Denver Career Service Board, the hearing officer determined that the department's dismissal violated the letter and spirit of the FMLA. Therefore, she rescinded that termination and a suspension was imposed. The Denver Career Service Board affirmed.
Concluding that the hearing officer had applied incorrect legal standards, the district court reversed the hearing officer's determination and reinstated defendant's termination, and this appeal followed.
Appellate review of agency action under C.R.C.P. 106(a)(4) is limited to considering whether the administrative agency exceeded its jurisdiction or abused its discretion. Under this standard, as the majority correctly notes, a reviewing court is required to reverse the administrative agency's decision if there is no competent evidence to support it or if the ageney applied an erroncous legal standard. Regents of University of Colorado v. City & County of Denver, 929 P.2d 58 (Colo.App.1996).
I. FMLA Regulations
The hearing officer stated in her order that the final regulations implementing the FMLA became effective February 6, 1995. Thus, she concluded that such regulations governed the way in which the department was required to notify defendant about FMLA leave requirements on or after February 10, 1995, and she therefore applied and interpreted those regulations throughout her decision.
However, on February 3, 1995, the effective date of those final regulations was deferred until April 6, 1995, which was 5 days after defendant's termination. See Deferral of Effective Date of Regulations, 60 Fed.Reg. 6658 (1995). Hence, because FMLA regulations cannot be applied retroactively, see La-coparra v. Pergament Home Centers, Inc., 982 F.Supp. 218 (S.D.N.Y.1997) (fn.6), the hearing officer erred in interpreting and applying the final regulations in her decision.
Contrary to the majority's conclusion, the differences between the interim and final regulations are, in this instance, significant. Specifically, the hearing officer applied and heavily relied on final regulation 29 C.F.R. § 825.301 which provides, in pertinent part, that, when an employee gives notice of the need for FMLA leave:
(b)(1) The employer shall also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.
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(f) If an employer fails to provide notice in accordance with the provisions of this seetion, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice.
29 C.F.R. § 825.301 (1998) (emphasis added).
The hearing officer found that, because the department did not provide defendant with the written notice required by 29 CF.R. *204825.301(b)(1) when it required him to reapply for leave to care for his father, his dismissal was contrary to that regulation.
However, she should have applied the interim regulations, which were in effect from August 5, 1993, through April 5, 1995. Under interim regulation 29 C.F.R. § 825.301(c), which governs this proceeding, an employer was not required to give written notice. Rather, that regulation merely provided, in pertinent part, that:
In addition, when an employee provides notice of the need for FMLA leave, the employer shall provide the employee with notice detailing the specific expectations and obligations of the employee and explaining any consequences of failing to do so.
29 CER § 825.301(c) (19983) (emphasis added).
In her order, the hearing officer stated that the department gave defendant "oral notice of what it expected of him" on February 10, 1995. (emphasis added) But, in concluding that the department had a "new obligation to provide writter notification of FMLA rights to employees who invoked the law's protection," she ultimately found that "these violations of the FMLA and regulations are sufficient to render [defendant's] dismissal unjust." (emphasis added)
Contrary to the majority's conclusion, the requirement for specific written notice contained in the final regulation was not merely a clarification of the interim regulation's notice requirement. Rather, as noted by the preamble to the final regulations themselves, "the regulation has been changed ... the notice must be in writing." (emphasis added) See Southwest Capital Investments, Inc. v. Pioneer General Inswrance Co., 924 P.2d 1205 (Colo.App.1996) (as a general rule, when a statute is amended, there exists a presumption that the legislature intended the statute to have a meaning different from that accorded to it before the amendment).
There are other differences between the interim and final regulations as well. Interim regulation 29 C.F.R. § 825.8301 did not contain any language similar to that in final regulation 29 C.F.R. § 825.301(f) (1998) noted above, which prohibits an employer from taking action against an employee if the employer fails to provide proper notice.
Therefore, had the hearing officer applied interim regulation 29 C.F.R. § 825.301(c), which only requires "notice," she could not have concluded that the department violated this particular portion of the regulation. Because the hearing officer made no other findings concerning the adequacy of the oral notice actually given, at the minimum a remand is required so the hearing officer may apply the appropriate regulations and determine whether the balance of the notice complied with such regulations.
Accordingly, I cannot agree with the majority's conclusion that defendant was not adequately notified of his rights and obligations under the FMLA.
IL Daily Call-In Procedure
The hearing officer found that on February 10, 1995, defendant's supervisor had instructed him that he must call in daily any future absences, just as he had been required to do during the several months before his mother's death. She also found that the supervisor had stressed the importance of his directions to defendant. She found defendant's claim that his supervisor had excused him from that requirement when they spoke on January 30, 1995, "stretches the bounds of any reasonable interpretation of [the supervisor's] statements."
Nevertheless, she stated that, although defendant had failed to call the department daily after he was instructed to do so on February 10, 1995, she was "not persuaded that [defendant] willfully refused to follow the procedure which he had dutifully followed for the two months before his mother died." (emphasis added) However, willful conduct is not required before an employee can be terminated for failing to report to the employer concerning his or her status and intention concerning a return to work.
In terminating defendant, the department had four separate grounds for termination. The department cited several applicable portions of the Denver Career Service rules, and *205the hearing officer noted those rules as being applicable here.
Denver Career Service Rule 16-22 provides in pertinent part:
Causes for Immediate Dismissal
Although the supervisor may impose a lesser penalty, the following shall be just cause for immediate dismissal:
(1) gross negligence or willful neglect of duty.
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(7) Refusing to comply with the orders of an authorized supervisor or refusing to do assigned work which the employee is capable of doing.
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(11) Absence from work where the employee has requested permission to be absent and such request has been denied.
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(23) Any other act of dishonesty, gross misconduct, or neglect not specifically listed above.
Denver Career Service Rule 16-28 further provides that, under appropriate cireum-stances, immediate dismissal may be warranted when, inter alia, an employee abuses sick leave, fails to observe departmental regulations, fails to comply with the instructions of a supervisor, or for any other just cause including the good of the service.
The only provision requiring willful conduct is contained in Denver Career Service Rule 16-22(1). The balance of the quoted rules do not require the existence of willfulness. Hence, the hearing officer erred in implicitly imposing a willful conduct requirement to the remaining provisions authorizing dismissal.
Further, the hearing officer also erred in applying FMLA regulations to the career service rule scheme. She stated that, pursuant to 29 C.F.R. § 825.802(d), the department "may have been entitled to require that [defendant] follow usual and customary requirements for requesting leave, such as calling in daily." However, she also interpreted such regulation to provide "that an employer may not disallow or delay [FMLA leave] if the employee fails to follow the employer's internal policies, so long as the employee has given timely verbal notice."
Based on her finding that defendant had given timely verbal notice that he needed more leave to care for his father, she concluded that, by terminating him based in part on his failure "to comply with the customary [department] procedure of calling in each day to request leave," the ageney had "effectively disallowed [him] statutorily protected [FMLA] leave after, at least, February 10, 1995." The application of that regulation to these facts was erroneous.
209 C.E.R. § 825.302(d) (1998) provides that: .
An employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal other notice.
(emphasis added)
That provision, however, is contained in a section specifying the type of notice an employee must give an employer when the need for FMLA leave is foreseeable. Because the hearing officer here specifically found that "the need for defendant to care for his father was not foreseeable," that section, in its entirety, has no application here.
Regardless, even if I assume defendant's leave was foreseeable so that 29 C.F.R. § 825.802 applies, the above quoted subsection, when read in context, has no applicability to these facts. Rather, it specifically refers to what an employer may require of an employee when the employee is requesting foreseeable FMLA leave.
Here, contrary to the hearing officer's conclusion, the department's instruction that defendant was to call in daily was not part of its "usual and customary notice and procedural requirements for requesting leave." (empha*206sis added) Rather, that instruction was a standard internal procedure regarding an employee's responsibility to call in daily when absent from work, whether the employee was on leave or not.
Moreover, 29 U.S.C. § 2614(a)(5) (1999) specifically authorizes an employer to impose reporting requirements upon employees, such as the department's daily call-in requirement here. See Lempres v. CBS Inc., 916 F.Supp. 15, (D.D.C.1996) (fn.10).
That section provides:
Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave under section 2612 of this title to report periodically to the employer on the status and intention of the employee to return to work.
Thus, because this section specifically authorizes an employer to impose reporting requirements upon an employee, it must follow that it is permissible to terminate an employee for failing to comply with those reporting requirements, as the department did here. See Holmes v. The Boeing Co., 1998 WL 92233 (D.Kan. Feb.3, 1998) (failure to comply with employer's policies for reporting absences sufficient to justify discharge; 29 U.S.C. § 2614(a)(5) specifically authorized employer to impose reporting requirements, thus no FMLA violation when employee terminated).
Moreover, nowhere in the FMLA or in its implementing regulations is there a requirement that an employee's failure to obey such reporting requirements must be "willful" before the employee may be subject to discipline. And, I find no indication in the Denver Career Service Rules that defendant's "failure to hear or understand that he was not excused from the [reporting] requirement" vitiates or precludes his termination.
I acknowledge that 29 U.S.C. § 2615(a)(1) (1999) provides that it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided in the FMLA. However, because 29 U.S.C. § 2614(a)(5) specifically authorizes an employer to impose reporting requirements on employees, to hold that § 2615(a)(1) prohibits conduct _. specifically authorized by § 2614(a)(5) would be absurd and, thus, such an interpretation should be avoided. See Holmes v. The Boeing Co., supra; Colorado State Board of Medical Examiners v. Saddoris, 825 P.2d 39 (Colo.1992).
Accordingly, even if I were to agree with the majority that the department violated some provisions of the FMLA, at least one of the grounds relied upon by the department (the failure to call in daily) provides an independent basis for termination that is permissible under FMLA.
For these reasons, the district court reached the correct result, albeit under a different rationale. See Barham v. Scalia, 928 P.2d 1881 (Colo.App.1996) (if trial court reaches correct result, its determination should be affirmed). Hence, I would affirm the judgment. j