reproaches the issue in this case in her circumstance was that she had some some panic issue some depression issues and she has stated that she would have been able to restructure her therapy this year so she was well ahead of schedule in that regard again this wasn't in issue where she was out with a broken leg or something in the doctor's visit with that you can't be on your feet you're completely precluded from working this was a mental health issue that she certainly could have restructured the way she was getting her treatment if she knew she had to be backed by a certain date the ballpark figure that she got from her doctor was not in regard to to any notice that she had she had to be back in a certain time fact she was our position that she was never told what date her leave would expire would expire in fact her rights weren't explicitly explained to her so she didn't have addressed during our first summary judgment of this record that a handbook notice was not sufficient receipt under the law you have actually received the written notice she received the handbook i when she began working this is a number years before so this issue even a rose so it's a toehold her to understand exactly that that she had twelve weeks based upon a handbook that she read a few years ago i don't think is sufficient on the law and certainly in her case with insufficient because she was not aware when she needed to retire employer comply with the statute and send notice that's the issue that we have right now our contention is that she never received the letter in question that would have have shown her and her notice and the evidence that's been presented on this issue on one hand from the employer was testimony from the human resources human resources individual who submitted affidavit a little less than four years after the date saying oh yes i remember stuffing and placing this letter into our company does that comply with the statute that you just as written notice well our contention is number one that the employer hasn't proven as a matter of law that they actually mailed this document and number two they have not proven as a matter of law that our client actually received it in this ng with their entire presumptions and well they're entitled to presumptions as long as they submit sufficient evidence to entitle them to that presumption the one of the first arguments that we've we've been making is that the employer simply submitted self serving testimony from one individual we cited a number of cases and in our brief same time a jury would be free to reject that testimony stating that an individual four years after the fact simply can say oh yeah i put that letter in the district court so that that was the presumption was but the truth in lending actually simply was the statute that gave rise to the presumption of or see itself essential that when an individual signed an acknowledgment that they received something that that created a presumption of receipt but the truth in lending act in that case well in general but the court noted in that case you didn't even have that because the knowledge in which is bizarre it certainly could ask for a copy or certified mailing receipt of it this is a very important document informing somebody of their federal rights you know that how many companies are not certified letters right mean i understand they might not and i'm not saying that their own testimony is not required oh it's not required certainly isn't and their own testimony might be sufficient in front of the ultimate fact five year to decide that yes we find this just repaired it was put in a number of it was taken to the mail room and the other person showed up and said when these things are done i put it in the postal service and they they have said and they're entitled to a presumption of delivery if those facts are proven or accepted by the ultimate fact i think with a dispute they were just beat our client has disputed that she received it and i think that calls into question whether or not it actually was received doesn't mean it was it doesn't but it also doesn't mean that it was the jury certainly is free to reject again testimony from somebody less than four years ago saying i sigh i'm in charge of human resources in charge of all the mailing for our company but i remember mailing this specific length because the company how many employees and i did offhand i'm not sure but i five hundred well had the actual school in question is located in western pennsylvania the human resources department where all this is happening was look at it out in california so this is the the actual individual who testified the mailing was the human resources manager from out in california is it the case that one employee has to say his and he get t comes out of the mailbox with language about a notice that's in there it is and it states that an individual once the family medical leave act states that once an individual makes the employer aware that he or she is in need of family gave the gave rise to the mailbox but but the case didn't look at the truth in lending act any further for interpret ing what that presumption of or see met they look to federal rules of civil procedure federal evidence three zero one which if i could read a quote from it states that the introduction of evidence to rebut a presumption destroys that presumption the court interpreted that to mean in the situation when we're talking about individual trying to overcome some type of presumption the quote from the court was the testimony of a bar or alone is sufficient to overcome through them let me ask resumption of or see what kind of we're kind of notice use your your book what the employer prepare in this case the written notice outline outlining what the family medical leave act entails when you began your leave and when is the late last date you can return that would be sufficient get so how can you or you come in and say i have proof that i let the statute requires me to i think the first step in it summary judgment would be to have a practice as an employer to prove as a matter of law that you've mailed something by by let's say sending it out certified mail so you have that receipt you can point to and say there is no question that this was sent out then i put the burden on the united states postal service to do their job and deliberate and that  she was effectively terminated because she had exhausted her f m l a bites and she appeared to return to work two weeks after those rights had expired so he was no longer going to have that you're going back to the subdivision for a second let's focus on she was now an applicant for rehired essentially that's what she constructively turns into there's no requirement under f m r way that and lawyer sent a notice to the him or you telling them that they've been terminated often the employees never even return to return to work can you explain the conflicting explanations she was given for her terminations conflicting in the sense that you didn't come back in time number one and number two we ha i'm sorry what was number two we have a drop in roman right when she told it we have a job in rome and therefore we can't take it that actually that is true they had to drop an involvement they had reduced the class or i'm sorry they had reduced the  applied science management instructor's from five to four is one reason or the other or is it is it a matter that there was even two to two different reasons for why she was giving different reasons not conflicting reasons one there was a drop off in involvement of student population two they had reduced the staff size from five to four three they had reduced classes from i think three to two so there was you know several things that were going on and they had no position for her to feel so there was no need to hire her back if you will is it your position had she not exhausted the f m i believe she would never ha terminated that is correct despite the fact that you had to drop off in the room and reduce classes and everything else as the company says they don't layoff existing employees or employees because of a downturn  page one page one ninety of the opinion that states her testimony was also obviously based on her personal knowledge and was in no way conclusory accordingly undergo three o one her testimony would appear to be sufficient to burst the presumptions bubble leaving the decision of whether to credit her testimony or that of traits witnesses to the jury that different how does that help you how does that help us because what the court is saying in my my read of this opinion is that her testimony which was very factual she testified that she went to the closing she was there for more than forty minutes but the was should have been had to notices for each one that she was applying for i think she was applying for four for two loans so she should have had four notices upon leaving what would be what would be similar in this case i never got the notice i went to the mailbox i opened it up it was empty so what you want to say she said she never got the notice she said that she never received the notice that's true that's a system here actually as you can get isn't it in fact the difference between just a general denial and what's happening but you know the employer could help itself a lot through good instead of going through that old you know box rule and instead under the law it's not systems corporation the mailbox was applied in a case that was a two thousand and eight decision so even though yes mailing procedures have changed over one hundred years you know i i'm sorry i think you might be right ordinary business transactions but this is a statute in which congress has put in the specific we are and imposing obligations on lawyers posing on obligations on lenders and when congress says i want you to be sure to congress we cry ring that notification be made in a statute and if congress believes that this should be done that way then they will have to amend the act and make it that way but right now until and i don't but i would like to conclude one point before we and three in the remaining minutes that i have i would like to just point out that the law is a remedial sachi that this court has held that the presumption that's created by is the weakest form possible on the other hand the mailbox rule is a in my opinion a higher standard and there must be an absence of clear evidence and other words the person against whom the mailbox rule was being imposed has to show by clear evidence that they did not actually b c the item how do you show you didn't receive something how is it possible how can i possibly sentences in  clear how well you prove you didn't receive something other than saying i didn't get it your honor in a case that's been cited by both parties in this case karnac on versus the ohio national life insurance company and that case argued that he did not receive a notice of cancellation of his insurance coverage is how did he prove that in addition was circumstantial evidence that he have in addition to his general denial he and that he showed that the mailings for that insurance policy came to his place of business and that his to see ger at his place of business was to have the secretary sort the mail into bills and nonviable i don't see she would then business record fighting other business records he's basically relying upon something which is a kind of a cousin of mailbox role and a business comedy so that has this been received my stinted business conduct your pick it up it wasn't picked up in this case is break into the improper your honor we did not we felt that we had put in our original motion for summary judgment a good faith affidavit of one of the employees to establish the mailbox what we raised in the box will defense as a part of our original motion for summary judgment in fact the court originally agreed with us the only changed the court only changed its mind upon a motion for reconsideration was a hiring freeze and as you heard that she was terminated effective once she refused failed to return within her f m l a time period that was a lot of to her and the position is that she was let go at that point and it was essentially a new hire who had been subject to this hiring freeze this simply is not what their witnesses have testified to i could read from a deposition of the school president arthur herman he was asked question and  loopy and would not have been a higher though would she she would have this would be and appendix volume three page seven again deposition testimony of arthur herman again question and this is looping would not have been a higher though which she wouldn't have been in to hire answer that is correct question she would have been an employee on lead that was being brought back answer sure that's correct so their own witnesses have have provided evidence showing that she in fact was not terminated effective upon her failure return within the twelve weeks or the damages that you see in both of these crimes interference in that you know yes the we're not asking for the job back at this point but just to reiterate they've brought up it at this point this issue of a hiring freeze i would even point to the fact that a month later another employee was hired to trim an upholstery department it's different department different department but it is curious if there's a hiring freeze that it just so happens that affects mrs levy and then a month later they're bringing in a new employee in the hiring freeze which it would indicate that regardless they're not going to be hiring for could be a