An employee’s denial of receipt of mailed FMLA notices can create an issue of fact for the jury, allowing FMLA claims to survive summary judgment, the Third Circuit held last week. Lupyan v. Corinthian Colleges, Inc., (3rd Cir. August 5, 2014).

The district court had previously granted summary judgment to Corinthian on Lupyan’s FMLA interference and retaliation claims, applying the “mailbox rule”, which presumes that a properly sent letter has been received by the addressee.

Plaintiff Lupyan was on short-term disability leave in December 2007.  Corinthian alleged that it sent her FMLA paperwork, notifying her that her leave was designated as FMLA leave. When Lupyan notified Corinthian that she was able to return to work in April 2008, Corinthian told her that her employment was being terminated due to low student enrollment and because she failed to return to work upon the expiration of her 12 weeks of FMLA leave. Lupyan claimed that this was the first time she learned that her leave had been designated as FMLA leave.

The Third Circuit reversed the district court, holding that Lupyan’s denial of receipt of the FMLA notice was enough to rebut the mailbox rule presumption. The court noted that Corinthian had no evidence to establish that Lupyan received the letter since it had not been sent registered or certified mail, requesting a return receipt, “or us[ing] any of the now common ways of assigning a tracking number to the letter.” The Court held that Corinthian’s self-serving affidavits confirming mailing of the notice were insufficient. Lupyan’s denial of receipt of the letter was enough to create a genuine issue of material fact that must be resolved by a jury.

This decision means employers need to take steps to follow up with employees when FMLA notices are ignored.  Employers can likely prevent this situation altogether simply by following up with a conversation, memorialized in a follow-up email or letter, confirming that the employee received the FMLA notice.

Samantha Sherwood Bononno