FMLA Claims Reinstated Because Employer Couldn’t Prove Employee Received FMLA Notice

Reviving an employee’s FMLA interference claim that she was unfairly discharged for exhausting her FMLA leave—since she did not know that her extended absence had been deemed FMLA leave—the Third Circuit U.S. Court of Appeals held that her insistence she had never received the employer’s letter designating her leave as FMLA rebutted the presumption of receipt under the “mailbox rule.” Her FMLA reprisal claim also was reinstated since she presented sufficient evidence of pretext. The district court’s dismissal of her claims on summary judgment was reversed and remanded. The case is Lupyan v. Corinthian Colleges, Inc.

The employee was an instructor for an institution that provided college-level classes. In December 2007, her supervisor suggested that she take a personal leave of absence since she seemed depressed. She filled out a form requesting “personal leave” from December 4 through December 31. After her supervisor suggested that she apply for short-term disability instead, she scheduled an appointment with her doctor and received a DOL form certifying her mental health condition. Based on the form, human resources determined that she qualified for FMLA leave.

Letter received? On December 19, a manager instructed the employee to initial the box marked “Family Medical Leave” on her leave request form and changed her projected date of return to April 1, 2008. However, the manager did not discuss the employee’s FMLA rights. The employer claimed that on that same day, it mailed the employee a letter advising her that she was placed on FMLA leave and explaining her rights. However, she claimed that she never received the letter and denied knowing that she was on FMLA leave until she attempted to return to work.

On March 13, 2008 (two weeks after her FMLA leave expired), the employee advised management that she had been released by her doctor to return to her teaching position with certain restrictions. Two weeks later, her supervisor told her that she could not return with restrictions. Although she subsequently provided a full release from her psychiatrist, ultimately she was discharged on April 9, ostensibly due to low student enrollment and because she had not returned to work within the 12 weeks allotted for FMLA leave.

Lower court proceedings. The district court dismissed the employee’s FMLA claims on summary judgment. After initially claiming that a factual dispute existed as to whether she was informed of her FMLA rights, the employer produced affidavits from employees who testified that the FMLA letter was properly mailed to her. Based on the affidavits, the district court relied on the “mailbox rule” to hold that she had received the letter.

Mailbox rule. Because the employee claimed interference by her employer not informing her that her leave was under the FMLA—which resulted in her being unaware that she had to return to work within 12 weeks or be subject to termination—at issue was whether the district court properly afforded the employer the benefit of the presumption of receipt of properly mailed letters that arises under the “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 letter carrier, it is presumed that it reached its destination at the regular time and was received by the person to whom it was addressed.

Rebuttable. However, this presumption is a rebuttable. A “strong presumption” of receipt applies when notice is sent by certified mail, but a “weaker presumption” arises where delivery is sent via regular mail. Without actual proof of delivery, receipt can be proven though evidence of business practices pertaining to mail, such as through a sworn statement. Because the presumption is weak where proof of receipt is attempted solely by circumstantial evidence, the affiant must have “personal knowledge” of the applicable procedures at the time of the mailing.

Letter received? The employer submitted the affidavits of its mailroom supervisor and the HR coordinator, both of whom had personal knowledge of the business’s customary mailing practices and one of whom swore that she prepared the letter and placed it in the outgoing mail bin. It did not, however, present any evidence that the employee received the letter since it was not sent by registered or certified mail and it did not request a return receipt or use any of the now common ways of tracking a letter. Its only evidence consisted of self-serving affidavits signed nearly four years after the alleged mailing date. Given the employee’s denial, and the ease with which a letter can be certified, tracked, or proof of receipt obtained, the weak rebuttable presumption was insufficient to establish receipt as a matter of law.

Verifiable receipt. The Third Circuit went on to note that, in this age of computerized communications and handheld devices, “it is certainly 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.” Finding that her denial of the receipt of the letter was enough to create a genuine issue of material fact, it reversed summary judgment on her FMLA interference claim and remanded for determination of whether she received notice that her leave fell under the FMLA.

Prejudice by lack of notice. The employee also sufficiently demonstrated that, had she been properly informed of her FMLA rights, she could have structured her leave differently. It was undisputed that she received all of the FMLA leave to which she was entitled and that she did not provide a release to return to work without restrictions until about 18 weeks after she began her leave. However, she claimed that had she known her leave fell under the FMLA, she would have expedited her return and returned to week before she exhausted her 12 weeks of leave.

She also pointed out that her first doctor’s release was issued only two weeks after her FMLA leave expired and did not indicate that she was unable to return to her job. Instead, it stated that she “would benefit from a position with minimal student contact if at all possible.” Thus, while her leave request form contained a projected return date of April 1, the record did not establish that she was not able to return before February 26, when her FMLA leave expired.

Pretext shown. Summary judgment was also improper as to her FMLA reprisal claim since the employee presented sufficient evidence that her discharge was pretextual. After submitting her full release, she was advised that she was fired not only because she failed to return within 12 weeks, but also because of low student numbers. However, the employer’s own witness testified that, as a matter of school policy, the employer did not “lay off” instructors because of downturns in enrollment. Thus, even if enrollment had declined, it was highly unusual for the employer to respond by terminating the employee. Given the unusual nature of her termination and its proximity to her leave, a jury could reasonably conclude that her request for FMLA leave motivated this differential treatment.

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