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Attorneys

Does an Employer Meet its Obligations Under the FMLA by Sending an FMLA Designation Notice to an Employee via First Class Mail? Not Always

August 8 2014

In Lupyan v. Corinthian Colleges, Inc., a FMLA interference lawsuit, the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer claims it mailed to her. The Court essentially held that if an employer wishes to prevail on summary judgment, it will need to send the FMLA designation letter via a method that establishes receipt by the employee.

Lisa Lupyan was hired as an instructor at Corinthian Colleges Inc. (“CCI”) in 2004. In December 2007, Lupyan’s supervisor, James Thomas, noticed that she seemed depressed and 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, Thomas suggested that she apply for short-term disability coverage instead.  Accordingly, Lupyan scheduled an appointment with her doctor and received a DOL “Certification of Health Provider.” Based on the Certification, CCI’s human resources department determined that Lupyan was eligible for leave under the FMLA, rather than personal leave so on December 19th, CCI’s Supervisor of Administration, Hixson, met with Lupyan and instructed her to initial the box marked “Family Medical Leave” on her Request for Leave Form. Hixson also changed Lupyan’s projected date of return to April 1, 2008, based upon the Certification.

Later in the afternoon of December 19th, CCI allegedly mailed Lupyan a letter advising her that her leave was designated as FMLA leave and explaining her rights under the FMLA (the “Letter”). Lupyan denies ever having received the Letter, and denies having any knowledge that she was on FMLA leave until she attempted to return to work. When Lupyan did not return to work after the exhaustion of her FMLA leave, her employment was terminated.  CCI explained that due to low student enrollment and her failure to timely return from FMLA leave, there was no position available to her. Lupyan claims that the first time she had any knowledge that she was on FMLA leave was at the time of her termination.

Lupyan sued CCI alleging that it interfered with her rights under the FMLA by failing to give notice that her leave fell under that Act, and that 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 sua sponte reversed its ruling on Lupyan’s FMLA interference claim. The court recognized that summary judgment was not appropriate because there was a factual dispute regarding whether CCI had informed Lupyan of her FMLA rights. CCI responded with an amended summary judgment motion which included affidavits from CCI employees who testified that the Letter was properly mailed to Lupyan. Based on the affidavits, the District Court relied on the evidentiary presumption that arises under the “mailbox rule” and found that Lupyan had received the Letter. The Court entered summary judgment in favor of CCI, and Lupyan appealed.

The Court of Appeal explained that the FMLA requires employers to provide employees with both general and individual notice about the FMLA. To meet the general notice requirements, an employer must post a notice of FMLA rights on its premises. (29 CFR § 2619(a)). Because employers have some discretion in the way FMLA policies are implemented, employers must also include information regarding the employer’s FMLA policies in a handbook or similar publication. (29 CFR § 825.300).  Lupyan claimed that CCI interfered with her FMLA rights by not informing her that her leave was under the FMLA. According to her, she therefore was unaware of the requirement that she had to return to work within twelve weeks or be subject to termination.*  Given Lupyan’s claim that she did not receive the Letter that CCI claims was properly mailed to her, the Court had to decide whether the District Court properly afforded CCI the benefit of the presumption of receipt of properly mailed letters that arises under the “mailbox rule.”

Under the “mailbox 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.”  However, the presumption is a rebuttable presumption that can be rebutted by opposing evidence that the letter was never received.  The Court explained that in the absence of actual proof of delivery, receipt can be proven circumstantially by introducing evidence of business practices or office customs pertaining to mail. This evidence may be in the form of a sworn statement.  In this case, CCI submitted the affidavits of its Mailroom Supervisor and its HR Coordinator, both of whom had personal knowledge of CCI’s customary mailing practices when the Letter was allegedly mailed to Lupyan.  Moreover, the HR Coordinator swore that she personally prepared the Letter and placed it in the outgoing mail bin.

However, CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, the Court held that there is no direct evidence of either receipt or non-receipt.  Consequently, for purposes of a summary judgment motion, Lupyan’s contention that she had no notice that her leave was subject to the limitations of the FMLA because she never received CCI’s Letter, sufficiently burst the mailbox rule’s presumption, and requires that a jury determine the credibility of her testimony, as well as that of CCI’s witnesses.

Takeaway for Employers:

Employers should send all FMLA notices to employees via a method that tracks delivery and receipt by the employee (e.g. Federal Express or other overnight mail, certified mail/return receipt requested, or hand-delivery with a signed acknowledgment of receipt).  Be careful of sending the notices via email as, similar to this case, the employee could claim that he/she did not receive the email and the burden is on the employer to prove the employee did in fact open and read his or her email.

*Caveat:  Employers should never automatically terminate employees who do not return from FMLA (or CFRA) leave at the expiration of the 12 week period.  Instead they should engage in the interactive process to determine if the employee is eligible for a reasonable accommodation (including possibly more leave) under the ADA and FEHA.