Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer had informed the employee that her leave from work had been designated as FMLA leave and that she had to return to work within twelve weeks or be terminated.
Wallace v. FedEx Corp.
Tina Wallace worked for FedEx in 1986 as a part-time package handler until June 2007, when she was promoted to senior paralegal, and worked under supervisor Rusty Phillips. Shortly after the promotion Wallace suffered from temporomandibular joint disorder (“TMJ”). She suffered with severe headaches, facial pain, chest pain and significant weight loss. Wallace did not inform Phillips of her medical condition. Wallace arrived to work late several times, and Phillips reminded her of the importance of arriving to work on time. Wallace apologized and stated she would try to be at work at or before 9 o’clock. By August, Wallace was struggling to get to work.
In early August, Wallace e-mailed Phillips stating she was not sure what to do and explained she had struggled with whether to tell someone at FedEx about what she was experiencing. Phillips responded to Wallace’s e-mail, encouraging her to keep an open and honest line of communication, so she could successfully perform the job duties of her new position. He also offered to find someone with whom she could comfortably speak about any issues. Wallace missed Monday and Tuesday of the following week, and on Tuesday she e-mailed Phillips stating she would be away from work the remainder of the week.
Wallace returned to work the following Monday, albeit, 90 minutes late. Phillips e-mailed her again about her attendance issues and both agreed to start fresh. The fresh start never happened, however, because the next day Wallace was 30 minutes late. Phillips prepared a written warning documenting Wallace’s tardiness and the on-going attendance issues. On August 15th, Wallace met with Phillips and a FedEx Human Resources Manager to discuss the written counseling. Wallace alerted Phillips and the Human Resources Manager she was having difficulty, in part, because her doctor had adjusted her medication. Phillips gave Wallace three options:
- Comply with the attendance policy and complete work assignments in a timely fashion;
- Consider taking a period of time for medical leave until she felt capable of adhering to the attendance policy and completing her work tasks; or
- Elect to not comply with the work requirements and suffer the consequences of the progressive discipline process.
Immediately following the conclusion of the meeting, Wallace went to a pre-scheduled appointment with her physician. During the visit, Wallace’s physician noticed she was not physically well, and recommended she take off at least two weeks due to her medical condition. The physician stated she would reassess Wallace after the two-week period. Wallace’s physician also indicated her absences on August 7-10 should be excused for medical reasons. Wallace met with Phillips after the appointment and gave him both letters from her physician. Wallace also met with Phillips and a FedEx labor & employment attorney. The three discussed Wallace’s medical leave, and the attorney gave Wallace several FMLA forms. The attorney told Wallace FedEx needed to receive the completed forms within 15 days.
Wallace took the forms to her physician, who completed them by August 20th. The physician also wrote a letter recommending Wallace take an additional three weeks of sick leave. Although Wallace left the physician’s office with the forms and letter, she never turned them into FedEx. The original two-week period came and went, and when Phillips did not hear from Wallace, he tried to call her several times. Phillips kept getting a busy signal, so he emailed her to inform her that her leave had ended and that he had received no additional documentation from her. Phillips also explained that if her physician had provided her with additional sick time, she must notify him of her absences as required by the Company’s policy.
On Tuesday, September 4—seventeen days after receiving the FMLA form, Wallace notified the HR Rep she was on her way to the hospital for emergency surgery on her right ear. The same day Phillips drafted a termination letter ending Wallace’s employment with FedEx. He cited to FedEx’s no-call, no-show policy, which provided that absences on two consecutive work days without notice was a violation FedEx’s attendance policy. Phillips and the HR Rep also left a voicemail for Wallace advising her she had been terminated. The next day Wallace received the letter and the voicemail message and immediately called Phillips, the HR Rep, the General Counsel and Vice President at FedEx. She explained she had a completed medical examination form, but was told it didn’t matter.
Wallace filed suit in federal court about six months later, alleging FedEx violated the FMLA by terminating her employment. A few days into the jury trial, FedEx moved for judgment as a matter of law. The trial court denied the motion, finding that a reasonable jury could conclude that FedEx failed to comply with 29 C.F.R. § 825.305, when it failed to advise Wallace of the anticipated consequences if she failed to provide adequate certification within the fifteen (15) day period. After another day of testimony, FedEx moved again for judgment as a matter of law. FedEx argued that Wallace failed to put the company on notice that she was taking FMLA leave. Again, the court denied the motion, finding sufficient evidence in the record to support a reasonable juror’s finding in favor of Wallace. The court then submitted the liability issues to the jury, which found in Wallace’s favor on her FMLA interference claim. Following a series of post-trial motions, FedEx appealed the liability finding to the Sixth Circuit.
Lupyan v. Corinthian Colleges, Inc.
Lisa Lupyan was employed as an instructor in Corinthian Colleges, Inc.’s (“CCI”) Applied Science Management program for approximately three years, when her supervisor, James Thomas, encouraged her to take a personal leave of absence. Lupyan had been suffering with depression. On her request for leave form, Lupyan specified that she was taking “personal leave” from December 4, 2007, through December 31, 2007. Lupyan’s supervisor suggested she take short term disability leave instead of personal leave. Lupyan obtained the necessary certification from her physician, which indicated she had a mental health condition. CCI’s human resources department determined Lupyan was eligible for leave under FMLA rather than personal leave.
On December 19, 2007, CCI’s administrator met with Lupyan and instructed her to select FMLA on the leave form. The administrator also extended her projected return to work date to April 1—three months beyond the original date. The administrator did not explain Lupyan’s FMLA rights during the meeting; however, later than afternoon CCI allegedly mailed a letter to Lupyan advising her that the leave was being designated as FMLA leave. CCI sent the letter by regular U.S. mail.
On or about March 13, 2008, Lupyan informed CCI that she had a return to work release from her physician and planned to return to her teaching position with certain restrictions. Lupyan’s supervisor informed her she could not return to work if she had any restrictions. Lupyan received a full release from her psychiatrist within the next few weeks; however, on April 9, 2008, Lupyan received notice that her position had been terminated from CCI due to low student enrollment, and because she had not returned to work within the 12 weeks permitted under the FMLA.
Lupyan filed suit against CCI alleging FMLA interference when CCI failed to inform her that her leave was under the FMLA, and retaliation when she was terminated for taking FMLA leave. The district court granted CCI’s motion for summary judgment as to both claims. Although the district court sua sponte reversed its ruling regarding the FMLA interference claim, CCI provided additional affidavits and support that Lupyan had, in fact, been provided notice that her leave was covered under the FMLA and the district court again entered summary judgment in favor of CCI.
Circuit Courts weigh in
In Wallace v. FedEx Corp. the Sixth Circuit affirmed the trial court’s ruling, finding that FedEx failed to comply with the FMLA notice requirements and that the Wallace’s termination interfered with her ongoing FMLA leave. The Court reminds employers that 29 C.F.R. §825.305(d) states, “at the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” The court found FedEx failed to provide the necessary notice and reinstated the jury verdict.
In Lupyan v. Corinthian Colleges, Inc., the Third Circuit explained that there was a genuine issue of fact as to whether Lupyan actually received CCI’s notice, which had been sent by regular U.S. mail. To prove that it provided proper notice to Lupyan of the consequences of not returning to work within twelve weeks, CCI relied on the “mailbox rule,” which provides that when it is proven that a letter was “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.” The mailbox rule is not a conclusive presumption of law, rather it is a rebuttal “inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business.” The court explained a strong presumption exists when notice is sent by certified mail, because there is evidence of delivery in the form of a receipt. The court further opined that computerized communications and handheld devices, provide a convenient and cost-effective method for employers to confirm receipt of important notices. CCI employed none of these advanced methods for providing the notice to Lupyan. In addition, CCI could provide no corroborating evidence that Lupyan received the letter, so the court reversed the district court’s grant of summary judgment on the interference claim, and remanded for determination of whether Lupyan received the notice. The court held the employee’s denial of receipt of letter sent via regular mail was enough to create a genuine issue of material fact.
Now is as good a time as any for employers to review their FMLA certification and notice documents and procedures to ensure that they not only include all of the necessary instructions to employees, but also are calculated to provide proof that the documents actually were provided to the employee. The FMLA is very stringent in its requirements and, as the Lupyan court noted, the digital age provides several ways for employers to communicate with employees and to document such communications. Both FedEx and CCI had to learn expensive lessons for not being able to prove that they provided their employees with the necessary notices of the consequences under the FMLA of their failing to act.