3RD CIRCUIT SAYS U.S. MAIL MAY NOT BE ADEQUATE FOR FMLA NOTICES

The United States Court of Appeals for the Third Circuit has ruled that relying on the post office to deliver a letter may not be adequate.  The 3rd Circuit said that in this age of computerized communications, it is not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.

Lisa Lupyan appealed the summary judgment rendered in favor of her former employer, Corinthian Colleges, Inc. (CCI) on her claims of interference with the exercise of her rights under the Family and Medical Leave Act (FMLA) and retaliation for her exercise of those rights.  The 3rd Circuit concluded that genuine issues of fact remain as to her FMLA claims and reversed the District Court’s grant of summary judgment and remanded the case for further proceedings.

Lupyan was hired as an instructor by 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 Lupyan scheduled an appointment with her doctor and received a “Certification of Health Provider,” providing certification of a mental health condition.  Based on this document, CCI’s human resources department determined that Lupyan was eligible for leave under the FMLA, rather than personal leave.

On December 19, 2007, CCI’s Supervisor of Administration, met with Lupyan and instructed her to initial the box marked “Family Medical Leave” on her Request for Leave Form.  Lupyan contended—and CCI did not dispute —that her rights under the FMLA were never discussed during this meeting.  However, later that afternoon CCI allegedly mailed Lupyan a letter advising her that her leave was designated as FMLA leave, and further explaining her rights under that Act.  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.  The issue of whether Lupyan received the letter was central to this appeal.

On March 13, 2008, Lupyan advised CCI that she had been released by her doctor to return to her teaching position with certain restrictions.  On April 1, 2008, Thomas informed Lupyan that she could not come back to work if any restrictions were a condition of her return. Shortly thereafter, Lupyan provided Thomas with a full release from her psychiatrist.  This confirmed that she was able to return to work without any restrictions or accommodations.  Nonetheless, Lupyan was advised on April 9, 2008 that she was being terminated from her position at CCI due to low student enrollment, and 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.

Thereafter, Lupyan brought this action. She alleged that that CCI 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 motion for summary judgment as to both claims, based in part on 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.

On appeal, 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 12 weeks or be subject to termination.

The presumption of receipt derives from the longstanding common law “mailbox rule.”  Under the mailbox rule, if a properly addressed letter is proved to have been either put into the post-office or delivered to the postman, it is presumed that it was received by the person to whom it was addressed.

However, this is not a conclusive presumption of law.  Rather, it is a rebuttable inference of fact.  When the presumption of mailing is opposed by evidence that the letter was never received, it must be weighed by a jury in determining the question whether the letters were actually received or not.

A strong presumption of receipt applies when notice is sent by certified mail, because it creates actual evidence of delivery in the form of a receipt.  A weaker presumption arises where delivery is sent via regular mail, for which no receipt, or other proof of delivery, is generated.  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.  However, because the presumption is weak where proof of receipt is attempted solely by circumstantial evidence, courts require personal knowledge of the procedures in place at the time of the mailing.

CCI submitted affidavits of its Mailroom Supervisor and Anne Binns, CCl’s HR Coordinator, both of whom had personal knowledge of CCI’s customary mailing practices when the letter was allegedly mailed to Lupyan.  Binns swore that she personally prepared the letter and placed it in the outgoing mail.

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 common ways of assigning a tracking number to the letter.  The only evidence CCI submitted consisted of self-serving affidavits signed nearly four years after the alleged mailing date.  However, under the circumstances, it is a very weak presumption.  Given Lupyan’s denial, and the ease with which a letter can be certified, tracked, or proof of receipt obtained, that weak rebuttable presumption the 3rd Circuit said it was not sufficient to establish receipt as a matter of law and thereby entitle CCI to summary judgment.

Lupyan argued that her testimony alone, if credited by the factfinder, should be sufficient to rebut the presumption she received the letter.  The 3rd Circuit held that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s denial of receipt.

The 3rd Circuit said that in this age of computerized communications, it is not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.  The court said the negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.  This is evident here, because CCI’s employees had to recall the circumstances surrounding a letter that was mailed four years earlier.  Where denial of receipt creates a genuine issue of material fact, the court said justice should not give way to expediency or the rigid application of a common law presumption that was adopted long before modern forms of communication and proof could have even been imagined.

The 3rd Circuit reversed the District Court’s order granting summary judgment on Lupyan’s FMLA interference claim and remanded the case for determination of whether she received notice that her leave fell under the FMLA.  The 3rd Circuit also reversed the District Court’s order granting summary judgment on Lupyan’s FMLA retaliation claim.

Employers that rely on the U.S. mail to deliver FMLA notices should re-evaluate their policies, particularly employers in the 3rd Circuit, which covers Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands.

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