Historically, federal agencies have used what is known as the “mailbox rule.” This maxim provides that if a notice or letter is properly addressed and duly mailed, it is presumed to have arrived at the mailing address in due course.
This presumption of receipt has traditionally been followed by MSPB, EEOC and OWCP as it relates to workers compensation claims. In fact, for OWCP, you can find this in 20 CFR 10.617 (b). There is the presumption that first class mail is received under the mailbox rule because a notice was mailed in the normal course of business to the last known address of record. M.F. and Department of the Navy, 112 LRP 56360 (ECAB 2012).
The mailbox rule has much of its origin in contract law, and it has even been applied and accepted in cases involving inmates. “The mailbox rule states that an incarcerated pro se litigant’s filing requirement is met when the pro se litigant delivers a document to prison authorities for mailing. [Faurot v. Barton, 2008 U.S. Dist. LEXIS 3818 (E.D. Cal. Jan. 4, 2008)].” Well, like everything else in life, nothing is ever static and following some recent case law, the “mailbox rule” appears heading for extinction with the likes of its siblings: common sense, reasonableness, logical, and rational.
A few years back, when I was a human resources officer with the Department of Labor (DOL), we lost a removal case because an employee was chronically absent without leave (AWOL). DOL sent this employee 26 letters that were mailed both first class as well as FedEx return receipt requested. Five of the notices were signed by a family member at his apartment.
He was initially suspended for extended AWOL, and then removed for AWOL and failing to follow established leave procedures. At the hearing he testified that he never received ANY of the letters that we had sent to him. And, as Paul Harvey would say, “now for the rest of the story.”
As you can imagine the MSPB judge sided with him, despite evidence to the contrary, and proclaimed that if he has testified under oath that he did not receive the letters, he did not receive the letters. At that moment we heard the familiar sound of our case going down the porcelain bowl. In the judge’s opinion we should have sent the letters to his home by courier.
MSPB case law does not require the Agency to prove that the appellant personally received the notice of an adverse action. Rather, MSPB case law only requires the Agency to show that it took” intelligent and diligent steps” to provide the Appellant with notice (Wright v. Department of Navy, 16M.S.P.R.408,411(1983)) where the notice was sent to the appellant’s home and received by his relatives.
In the Wright case, the employee was told by the Agency to contact his attorney in a criminal case if there were questions about his leave, and the Agency provided to the attorney a copy of the proposal). In Stockton v. Department of Navy (11 M.S.P.R.440,442 (1982) ) if an employee is not going to be at his home where he normally receive his first class mail, the employee should haven notified the employer of his whereabouts or made arrangements to have his mail checked.
In Givens v. U.S. Postal Service, the MSPB held that the Agency’s efforts to notify the employee were not reasonably diligent because the Agency sent the notice and decision letter to the employee’s former home address despite being informed in writing of a different address and telephone number where the employee could be reached.
Now, we come to a recent private sector decision on the “mailbox rule” involving the Family and Medical Leave Act (FMLA). In Lupyan v. Corinthian College, the Third Circuit Court of Appeals concluded that the delivery of FMLA notices by first class mail does not rule out a contention regarding the receipt of the notice.
Both the DOL and OPM regulations do not dictate how FMLA notices to employees must be delivered, but the above referenced case gives employers serious pause to analyze how the delivery of notices are sent and received.
In this case, Lupyan was placed on FMLA leave, and when she failed to return to duty after her 12-week absence, the college fired her. The employee cried foul that the college interfered with her FMLA rights and claimed that she was not aware of her leave rights, nor did she receive the notices from the college.
At the initial trial, the lower court ruled in favor of the college citing the “mailbox rule” that there is an evidentiary presumption that a letter properly addressed and mailed with sufficient postage is deemed to be received by the intended recipient. However, on appeal, the Third Circuit Court of Appeals reversed the trial court’s findings and decision that her claim that she did not receive the mail created a factual dispute, and the summary judgment in favor of the college should not have been rendered, as this was a matter to be decided by a jury.
The lesson in the above case, and the case against the Department of Labor and Lupyan, is that employers must demonstrate a very strong presumption of delivery to overcome any credible dispute by the employee that the personnel notice was not received.
Normally, certified mail creates actual evidence of delivery in the form of a receipt. Even though this was prevalent in the DOL case, the judge chose to ignore both testimonial and hard evidence to this fact. However, the weak presumption of delivery was that the signature on some of the FedEX receipts for the majority of the 26 letters was not legible, and it could not firmly establish that the employee actually received it. Another alternative is electronic delivery with a return digital receipt when the email is delivered and read.
I am aware that one agency took an innovative approach to have the employee’s final payment for their lump sum leave to be delivered by a Treasury check that was sent by the agency. In mailing the check, the agency also included another copy of the employee’s termination notice, and then obtained a copy of the cashed check from the Treasury. Prior to this, the employee had continually refused to accept and sign for any certified mail from the agency. True to form, the employee attempted to file a late appeal. The agency paraded several employees who testified that they witnessed the termination notice being placed in the regular mail with along with the Treasury check. It was game, set and match in favor of the agency.
The transmission of a personnel decision and any important legal notice is not a perfunctory exercise. Agencies must ensure that the delivery is affected in such a manner to eliminate any reasonable doubt as to its delivery and receipt. Anything less, and the organization risks this becoming a distraction on appeal that can sink an action.