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Regular Mail May Not Be Sufficient for Delivery of FMLA Notice
An employer may not rely on the “mailbox rule” to prove that the employer provided an employee with notice of his or her rights under the Family and Medical Leave Act (FMLA), the 3rd U.S. Circuit Court of Appeals ruled.
The FMLA requires that employees going on FMLA leave receive specific notice that their leave will be designated as FMLA, as well as a summary of their rights and responsibilities. Dating back to the 1800s, courts have recognized the “mailbox rule,” which creates an inference that when an object is placed for mailing, it promptly reaches its recipient. In this case, the employer provided sworn testimony that an employee had prepared the required notice and placed it in the outgoing mail bin. The employee contended she never received it. The 3rd Circuit held that the employee had sufficiently rebutted the mailbox rule as applied to unverified first class mailings, and resurrected her FMLA interference and FMLA retaliation claims.
Corinthian Colleges Inc. (CCI) hired Lisa Lupyan in 2004. In December 2007, at her supervisor’s suggestion, Lupyan applied for a personal leave of absence from Dec. 4 through Dec. 31 for depression, which included submitting a certification of health care provider. CCI’s HR department reviewed Lupyan’s application and classified the leave as FMLA and not personal leave.
On Dec. 19, 2007, Lupyan met with a CCI administrator who told her to initial the box marked “family medical leave” on her leave application form and, acting on information in the certification, also extended the end date of her requested leave to April 1, 2008. The administrator did not discuss FMLA rights and responsibilities during this meeting.
CCI contended that it sent a letter, explaining Lupyan’s rights under the act, later that day. One employee testified about CCI’s usual mailing practices, and another employee testified that she was certain she had prepared Lupyan’s FMLA notices and put them in the outgoing mail bin. However, Lupyan swore that she never received this mailing.
On March 13, 2008, Lupyan advised CCI she could return to work with restrictions, but on April 1, CCI said she could return only if she was released without any restrictions. Shortly after April 1, Lupyan received a full release from her psychologist. Nonetheless, CCI terminated Lupyan on April 9, 2008, for low enrollment and because she had not returned to work until after her 12 weeks of FMLA had expired. Lupyan claimed this was her first notice that she had been on FMLA leave.
CCI prevailed at the trial court level by convincing the district court to apply the mailbox rule and to draw the inference that Lupyan had, in fact, received the notice of her FMLA rights. Since she had knowledge of the 12-week limitation, and had not returned within the 12-week period, she would not be entitled to reinstatement. Accordingly the district court granted summary judgment to the employer on Lupyan’s interference claim. The district court also found no evidence of bias or pretext to support Lupyan’s FMLA retaliation claim.
The 3rd Circuit disagreed with the district court. According to the appellate court, regular mailings only get the weakest level of inference, and the recipient’s sworn statement to the contrary was enough to upend that inference. Certified mail is due a stronger inference.
However, as the court pointed out, her FMLA interference claim would still fail if Lupyan would not have been able to return to work within 12 weeks. Lupyan testified that she could have and would have structured her leave differently to get back to CCI within 12 weeks had she known she had such a limitation. Though Lupyan was not medically trained, the appellate court found that Lupyan’s opinion on this subject created a question for a jury to decide.
The 3rd Circuit’s rehabilitation of the FMLA retaliation claim was more straightforward. The appellate court simply disagreed with the trial court’s conclusion that there was no evidence of bias or pretext. The 3rd Circuit pointed to testimony by a CCI witness that instructors like Lupyan were not normally laid off even during declining enrollment, and that despite an alleged hiring freeze, CCI had hired another instructor (albeit in another department) shortly after Lupyan’s termination and during the hiring freeze. Finally, CCI’s instruction to Lupyan that she needed a full release to be able to return to work undermined its position that, eight days later, her position had been eliminated.
Lupyan v. Corinthian Colleges Inc., 3rd Cir., No. 13-1843 (Aug. 5, 2014).
Professional Advise: Employers should communicate with FMLA-qualifying employees about their leave, throughout their leave, in more than one format.
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