Employee's Affidavit Destroys Presumption that FMLA Notice Sent Via Regular Mail was Received: Third Circuit | Practical Law

Employee's Affidavit Destroys Presumption that FMLA Notice Sent Via Regular Mail was Received: Third Circuit | Practical Law

In Lupyan v. Corinthian Colleges Inc., the US Court of Appeals for the Third Circuit reversed summary judgment in favor of the employer in a Family and Medical Leave Act (FMLA) interference and retaliation case and held that an employee may create a triable issue of fact simply by submitting an affidavit that an FMLA notice was never received, thereby destroying the presumption that a letter mailed by the employer via regular mail was received by the recipient.

Employee's Affidavit Destroys Presumption that FMLA Notice Sent Via Regular Mail was Received: Third Circuit

by Practical Law Labor & Employment
Published on 08 Aug 2014 • USA (National/Federal)
In Lupyan v. Corinthian Colleges Inc., the US Court of Appeals for the Third Circuit reversed summary judgment in favor of the employer in a Family and Medical Leave Act (FMLA) interference and retaliation case and held that an employee may create a triable issue of fact simply by submitting an affidavit that an FMLA notice was never received, thereby destroying the presumption that a letter mailed by the employer via regular mail was received by the recipient.
On August 5, 2014, in Lupyan v. Corinthian Colleges Inc., the US Court of Appeals for the Third Circuit reversed summary judgment in favor of the employer in an FMLA interference and retaliation case and held that an employee may create a triable issue of fact simply by submitting an affidavit that an FMLA notice was never received, thereby destroying the rebuttable presumption that a letter mailed by the employer via regular mail was received by the recipient (13-1843, (3d Cir. Aug. 5, 2014)).

Background

Lisa Lupyan started working as an instructor in Corinthian Colleges, Inc.'s (CCI) Applied Science Management program in 2004. In December 2007, Lupyan's supervisor, after noticing that she seemed depressed, suggested she take a personal leave of absence. On her "Request for Leave Form," Lupyan specified that she was taking "personal leave" from December 4, 2007 through December 31, 2007. However, her supervisor suggested that she instead apply for short-term disability coverage.
Therefore, Lupyan saw her doctor and received a "Certification of Health Provider" to certify a mental health condition. After review of the certification, CCI human resources determined that Lupyan was eligible for leave under the FMLA, rather than personal leave.
In December 2007, CCI's Administration Supervisor:
  • Instructed Lupyan to initial the box marked "Family Medical Leave" on her Request for Leave Form.
  • Changed Lupyan’s projected date of return to April 1, 2008, based upon the Certification of Health Provider provided by Lupyan.
Lupyan and CCI agree that Lupyan's rights under the FMLA were never discussed during this meeting. However, CCI alleges that later that afternoon it mailed Lupyan a letter:
  • Advising her that her leave was designated as FMLA leave.
  • Further explaining her rights under the FMLA.
However, Lupyan denies:
  • Ever having received the letter.
  • Having any knowledge that she was on FMLA leave until she attempted to return to work.
In March 2008, Lupyan advised CCI that she had been released by her doctor to return to her teaching position with certain restrictions. She then provided a full release from her psychiatrist confirming that she was able to return to work without any restrictions or accommodations. However, in April 2008, CCI advised Lupyan that she was being terminated:
  • Due to low student enrollment.
  • Because she had not returned to work within the 12 weeks allotted for FMLA leave.
Lupyan claims this was the first time she had any knowledge that she was on FMLA leave.
Lupyan brought action in the district court claiming that:
  • CCI interfered with her rights under the FMLA by failing to give notice that her leave fell under the FMLA.
  • She was fired in retaliation for taking FMLA leave.
The district court granted CCI’s initial motion for summary judgment as to both claims.
Thereafter, the district court reversed its ruling on Lupyan's FMLA interference claim, recognizing that summary judgment was not appropriate because of a factual dispute over whether CCI had informed Lupyan of her FMLA rights.
CCI responded with an amended summary judgment motion including affidavits from CCI employees testifying that the letter was properly mailed to Lupyan. Based on the affidavits, the district court:
  • Relying on the evidentiary presumption that arises under the "mailbox rule," found that Lupyan had received the letter.
  • Entered summary judgment in favor of CCI.
Lupyan appealed to the Third Circuit.

Outcome

The Third Circuit:
  • Vacated and remanded the district court's grant of summary judgment to CCI on both the retaliation and interference claims.
  • Remanded to the district court for determination of whether Lupyan received notice that her leave fell under the FMLA.
The Third Circuit found:
  • Employees can sue for interference with FMLA rights under 29 U.S.C. § 2615(a)(2), if an employer retaliates against an employee for exercising her FMLA rights. In Erdman v. Nationwide Insurance Co., this circuit held that "firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee" (582 F.3d 500, 509 (3d Cir. 2009)).
  • DOL regulations require that an employer give employees individual written notice that an absence falls under the FMLA, and is therefore governed by it (29 CFR §§ 825.208 and 825.300; Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir. 2004)).
  • Failure to provide the required FMLA notice can constitute an interference claim (Conoshenti, 364 F.3d at 144-145).
  • The presumption of receipt derives from the common law "mailbox rule." Under this rule, if a letter "properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed" (Rosenthal v. Walker, 111 U.S. 185, 193 (1884) and Phila. Marine Trade Ass’n.-Int’l Longshoremen’s Ass’n Pension Fund v. C.I.R., 523 F.3d 140, 147 (3d Cir. 2008)). However, this is a rebuttable inference of fact (Rosenthal, 111 U.S. at 193-94).
  • A strong presumption of receipt applies when notice is sent by certified mail. However, a "weaker presumption" arises when delivery is sent via regular mail when no receipt or other proof of delivery is generated (Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 279 (3d Cir. 2007)). If there is no actual proof of delivery, the employer can introduce circumstantial evidence of business practices or office customs pertaining to mail (US v. Hannigan, 27 F.3d 890, 893 (3d Cir. 1994)). This evidence may be a sworn statement (Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007)). However, the affiant is required to have "personal knowledge" of the procedures in place at the time of the mailing (Kyhn v. Shinseki, 716 F.3d 572, 574 (3d Cir. 2013)).
  • Although CCI submitted two affidavits, from CCI's Mailroom Supervisor and its Human Resources Coordinator, who both had personal knowledge of CCI’s customary mailing practices, and although the Human Resources coordinator swore that she personally prepared the letter and placed it in the outgoing mail bin, CCI was unable to prove that Lupyan received the letter because it was not sent by registered or certified mail and CCI did not request a return receipt or use a method of mailing that assigned a tracking number. The affidavits implicate a presumption of receipt under the mailbox rule. However, with Lupyan's denial, and the lack of tracking information, the presumption of receipt is weak and insufficient to establish receipt as a matter of law and entitle CCI to summary judgment.
  • Evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee's positive denial of receipt, creating an issue of fact for the jury.
  • Lupyan's denial of receipt of the letter is enough to create a genuine issue of material fact.
  • The credibility of Lupyan's statements that had she known her FMLA leave allowance had expired and her job was in jeopardy she would have returned to work within 12 weeks is also a genuine issue of material fact.
  • A reasonable jury could discredit CCI's reasons for Lupyan's termination as pretextual and suggestive of retaliatory motive.

Practical Implications

The Third Circuit has shown little patience for an employer who in this day and age of computerized communications, failed to keep a record of such an important mailing. To avoid lawsuits from employees who contend they did not receive essential mailings, employers are advised to maintain careful records of mailing receipts. Though the FMLA regulations do not specify a method of mailing required notices, employers should consider using certified mail return receipt requested or other method to document actual receipt by an employee on leave.