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For-Profit College Must Try FMLA Claims Of Instructor Fired After Leave, Court Rules

Wednesday, August 6, 2014

By Kevin McGowan  

Aug. 5 — A Corinthian Colleges Inc. instructor in Pennsylvania fired after exceeding 12 weeks of leave for depression may pursue Family and Medical Leave Act interference and retaliation claims because a reasonable jury could find the employer failed to notify her she was on FMLA leave, the U.S. Court of Appeals for the Third Circuit ruled Aug. 5.

Corinthian argued it had mailed Lisa Lupyan a letter informing her she was on FMLA leave limited to 12 weeks. Lupyan said she never got the alleged letter, but a federal district court granted summary judgment to Corinthian, saying Lupyan couldn't overcome a presumption of receipt under the common law “mailbox rule” (2011 BL 230952 (W.D. Pa. 2011)).

Reversing the district court, the Third Circuit said Lupyan's assertion she never received the letter raises a jury issue that Corinthian never provided actual notice she was on time-restricted FMLA leave, especially since Corinthian easily could have notified Lupyan by certified or registered mail or via electronic means that require acknowledgement of receipt.

‘Mailbox Rule' Subject to Rebuttal

The mailbox rule, which presumes letters sent through the U.S. Postal Service are received three days later, is rebuttable, Judge Theodore A. McKee wrote.

Citing Federal Rule of Evidence 301, the court said Lupyan's contention she lacked notice that her leave was subject to the FMLA's time limitation because she never received Corinthian's letter “sufficiently burst the mailbox rule's presumption” and requires a jury to weigh the credibility of Lupyan's and Corinthian's conflicting testimony.

Nothing in the FMLA or Labor Department regulations “suggests a legislative intent to provide a stronger presumption there than would otherwise apply under Rule 301,” the court said. “[E]vidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee's positive denial of receipt, creating an issue of fact for the jury.”

Requiring additional rebuttal evidence to get to a jury would make the mailbox rule “a conclusive presumption that would be equivalent to an ironclad rule,” the court said.

“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,” the court said.

Lupyan's termination is sufficient evidence of prejudice from the alleged lack of notice to raise an FMLA interference claim, even though Corinthian indisputably provided 12 weeks of leave, the court said.

Retaliation Claim Revived

Lupyan also has a triable FMLA retaliation claim, as a reasonable jury could find Corinthian's contentions that Lupyan was terminated either because she had exhausted FMLA leave or because student enrollment had decreased were pretexts for firing her for protected leave, the court said.

“[E]vidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee's positive denial of receipt, creating an issue of fact for the jury,” the court said.

Corinthian's own witness testified the school as a matter of policy didn't lay off instructors because of enrollment downturns, the court said.

“Given the unusual nature of her termination and its proximity to Lupyan's leave, a jury could reasonably conclude that Lupyan's request for FMLA leave motivated this differential treatment,” the court said.

Judges Julio M. Fuentes and Berle Schiller joined in the decision.

The Williams Law Office represented Lupyan. Feldstein Grinberg Lang & McKee represented Corinthian Colleges.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Lisa_Lupyan_v_Corinthian_Colleges_Inc_et_al_Docket_No_1301843_3d_.

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