Labor and Employment Law Section

 View Only

Lupyan v. Corinthian Colleges Inc.: You’ve Got Mail, But Can We Prove It?

By Allison J. Vogel posted 01-09-2015 11:30 AM

  
Originally published in New Jersey Labor and Employment Law Quarterly Vol. 36, No. 1/January 2015. 

Employers send out numerous communications each day relating to a wide variety of topics. Due to the volume of correspondence, many employers do not give a second thought to sending a given letter via electronic, regular, or certified mail. With the unofficial motto of the U.S. Postal Service being “[n]either snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds,” employers generally presume that their mailings reach their intended recipients. This presumption is known as the ‘mailbox rule.’

However, the Third Circuit has cast doubt on this presumption by vacating the lower court’s grant of summary judgment to the defendant on plaintiff Lisa Lupyan’s Family and Medical Leave Act (FMLA) claims, holding the presumption of receipt usually given to U.S. Postal Service mail was insufficient to establish Lupyan’s receipt as a matter of law, in light of Lupyan’s denial that she ever received her employer’s letter outlining her rights under the FMLA, and questioning the ease with which a letter can be certified, tracked, or proof of receipt obtained.1 

Facts of Lupyan

Lupyan was employed as an instructor at Corinthian Colleges, Inc.’s (CCI) applied science management program. In Dec. 2007, her supervisor suggested she take a personal leave of absence because she seemed depressed. Lupyan submitted a request for leave form indicating she was taking a ‘personal leave’ from Dec. 4, 2007, through Dec. 31, 2007. After her supervisor suggested she apply for short-term disability coverage instead, Lupyan scheduled a doctor’s appointment and received a certification of health provider form. Based upon this document, CCI’s human resources department determined Lupyan was eligible for FMLA leave, rather than personal leave.

On Dec. 19, 2007, Lupyan met with CCI’s supervisor of administration, Sherri Hixson. During this meeting, Hixson instructed Lupyan to initial the box marked ‘Family Medical Leave’ on her request for leave form, and changed her projected date of return to April 1, 2008, in conformity with her certification of health provider. While Hixson did not discuss Lupyan’s rights under the FMLA with her, CCI allegedly mailed a letter to her that afternoon advising that her leave was designated as FMLA leave and explaining her rights under the FMLA. Lupyan denied receiving the letter or knowing she was on FMLA leave until she sought to return to her job.

Lupyan advised CCI in or around March 2008, that she could return to work with restrictions, but her supervisor advised her on April 1, 2008, that she could not return to work unless she had no restrictions. Although Lupyan provided CCI with a full release from her psychiatrist shortly thereafter, CCI terminated her employment on April 9, 2008, because of low student enrollment and Lupyan’s failure to return to work within the 12 weeks provided by the FMLA. Lupyan asserted she did not know she was on FMLA leave until this time.

Following her termination, Lupyan brought a lawsuit alleging CCI interfered with her rights under the FMLA by failing to provide the required notice that her leave fell under the FMLA and terminated her in retaliation for taking FMLA leave.

The district court initially granted summary judgment in favor of CCI, but sua sponte reversed its ruling on Lupyan’s FMLA interference claim due to Lupyan’s claim that she had not received notice of her FMLA rights. After CCI submitted an amended summary judgment motion with affidavits stating the letter was properly mailed to Lupyan, the district court granted summary judgment in favor of CCI, relying upon the mailbox rule to find that Lupyan had received the letter.2 Lupyan appealed the decision to the Third Circuit. 

Requirements under the FMLA

The Third Circuit court first reviewed the requirements under the FMLA. The FMLA provides eligible employees with 12 weeks of leave during any 12-month period for the employee’s own “serious health condition that makes the employee unable to perform the functions” of his or her job.3 An employee has a right to be restored to his or her position or an equivalent position following FMLA leave.4 However, if the employee cannot perform an essential function of his or her original position due to the “continuation of a serious health condition,” the employee does not have a right to job restoration.5 An employee can bring claims for interference and retaliation under the FMLA.

The FMLA requires employers to provide general and individual notice about the FMLA to employees. While an employer can post a notice of FMLA rights and provide information regarding FMLA policies in a handbook to meet the FMLA’s general notice requirements, an employer on notice that an employee is taking FMLA-qualifying leave must: 1) notify the employee of eligibility to take FMLA leave within five business days;6 2) provide written notice to the employee regarding whether the leave will be designated as FMLA leave;7 3) notify the employee regarding his or her obligations under the FMLA and consequences for failing to meet them;8 and 4) advise the employee of the specific amount of leave that will be counted against the employee’s FMLA leave entitlement.9

The Third Circuit stated that an employer’s failure to advise an employee of his or her FMLA rights can constitute an interference claim when the employee has been prejudiced by the violation. Lupyan based her interference claim on her employer’s alleged failure to advise her that her leave was under the FMLA. In granting summary judgment to CCI, the district court relied upon the letter CCI allegedly provided to Lupyan and various provisions of CCI’s employee handbook. While the provisions of the handbook satisfy general notice requirements, the court determined the crux of the issue was whether the district court properly afforded CCI the benefit of the presumption of receipt under the mailbox rule. The Third Circuit stated CCI would satisfy its obligation of providing actual notice under the FMLA by establishing that Lupyan received the letter. 

Mailbox Rule Analysis

The Third Circuit then turned its focus to the mailbox rule, which provides that 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.”10 Although there is a presumption of receipt, it is a rebuttable “inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business.”11 The court explained that certified mail carries a stronger presumption of receipt than regular mail because it generates actual evidence of delivery in the form of a receipt. While the court acknowledged that receipt can be proven circumstantially in the absence of actual proof of delivery, the affiant must have ‘personal knowledge’ of the procedures in place at the time of the mailing.

Reviewing the affidavits submitted with CCI’s amended motion for summary judgment, the court found CCI was not able to establish that Lupyan received the letter. Since CCI did not use registered or certified mail, request a return receipt, or assign a tracking number when it allegedly sent the letter to Lupyan, CCI could not show whether or not Lupyan received the letter. The court also found that CCI’s affidavits, which were signed almost four years after the alleged mailing date of the letter, implicated the presumption of receipt but were not sufficient to establish receipt as a matter of law.

The court next discussed the rebuttal of the presumption of receipt under the mailbox rule. Once a party proves mailing, the presumption of receipt “imposes the burden of production on the party against whom it is directed[.]”12 Under Federal Rule of Evidence 301, the “introduction of evidence to rebut a presumption destroys that presumption, leaving only that evidence and its inferences to be judged against the competing evidence and its inferences to determine the ultimate question at issue.”13 The court determined Lupyan’s claim that she did not have notice her leave was under the FMLA because she did not receive the letter destroyed the mailbox rule’s presumption of receipt.

Additionally, the court agreed with Lupyan’s assertion that her testimony alone, if credited by the factfinder, was sufficient to rebut the presumption that she received the letter. The court, relying upon a position it recently adopted in Cappuccio v. Prime Capital Funding LLC,14 found that testimony alone is sufficient to overcome the presumption of receipt. Applying this reasoning to Lupyan’s claim, the court held that an addressee’s positive denial of receipt alone is sufficient to nullify the presumption of receipt under the mailbox rule. The court reversed the district court’s order granting summary judgment on Lupyan’s FMLA interference claim.

Finally, the court considered whether Lupyan was prejudiced by the lack of notice. Lupyan claimed she would have returned to work sooner had she known her leave was covered under the FMLA. The court noted it has held that a plaintiff can show she was prejudiced by contending that, had she known her leave fell under the FMLA, she would have returned to the job before she exhausted her 12 weeks of leave and was terminated.15 The court found Lupyan’s claim was sufficient to establish prejudice under the FMLA. 

Implications and Considerations

While widely accepted in the past, blanket reliance upon regular mail to send FMLA notices and other legally mandated documents can create a host of legal issues for the unwary employer. If an employer cannot affirmatively prove an FMLA notice has been received by an employee, an employee can simply deny receipt of the letter to create a genuine issue of material fact. An employer can be faced with defending an FMLA interference claim based upon a technicality.

Even in this age of computerized communications and handheld devices, employers should consider using registered or certified mail when sending mandatory FMLA notices and other legally mandated documents to employees. Employers should also keep track of when notices are sent and received. In addition, employers should regularly communicate with employees while they are out on leave. The negligible cost and inconvenience of ensuring an employee received the employer’s notice is worth avoiding a potentially lengthy and costly litigation.

Allison J. Vogel is an associate at Jackson Lewis P.C. The firm represents management exclusively in workplace law and related litigation.

Endnotes

1.          Lupyan v. Corinthian Colleges Inc., 2014 U.S. App. LEXIS 15019 (3d Cir. Aug. 5, 2014).

2.             Lupyan v. Corinthian Colleges Inc., 2011 U.S. Dist. LEXIS 101024 (W.D. Pa. Sept. 8, 2011).

3.             29 U.S.C. § 2612(a)(1)(D).

4.             Id. § 2614(a)(1).

5.             29 C.F.R. §825.216(c).

6.             Id. § 825.300(b)(1).

7.             Id. § 825.300(d)(1).

8.             Id. § 825.300(c)(1).

9.             Id. § 825.300(d)(6).

10.        Rosenthal v. Walker, 111 U.S. 185, 193 (1884).

11.        Id. at 193-94 (citations omitted).

12.        McCann v. Newman Irrevocable Trust, 458 F.3d 281, 287 (3d Cir. 2006).

13.        Id. at 287-88.

14.        649 F.3d 180, 190 (3d Cir. 2011).

15.        Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142-43 (3d Cir. 2004).


Permalink