NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0383n.06 No. 16-1798

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBBIN PERKINS, Plaintiff-Appellant,

v. ROCK-TENN SERVICES, INC., Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, MOORE, a nd GIBBONS, Circuit Judges. MARTHA CRAIG DAUGHTREY, Circuit Judge . After resigning from Rock-Tenn Services, Inc., Robbin Perkins discovered that the male employee assigned to take over her former job responsibilities was paid much more than she had been paid. Perkins filed suit under the Equal Pay Act, 29 U.S.C. § 206(d), alleging that the pay differential was based on sex. Perkins also claimed that Rock-Tenn did not pr ovide her with notice th at she was entitled to continue her health-care benef its after her resignation, as is required under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA ), 29 U.S.C. § 1166(a). The district court granted Rock-Tenn’s motion for summary judgment as to both claims.

FACTUAL AND PROCEDUR AL BACKGROUND In August 2010, Rock-Tenn Services hired Robbin Perkins as the shipping superintendent at a paper-production mill in Battle Creek, Mi chigan. The International Brotherhood of Teamsters represented Rock-Tenn’s non-manageri al employees under a collective bargainingNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-2- agreement (CBA) that set compensation for those employees. Shipping superintendent was a management position, however, and not subject to the CBA. Based on factors set out in RockTenn’s “Guide to Salaried Compensation,” such as market value of skills, performance, and geographic location, Rock-Tenn hired Perk ins at a salary of $70,000 a year. As shipping superintendent, Perkins wa s responsible for managing the shipment schedule, tracking shipments, supervising the shipping department employees, and confirming that the correct number and type of paper rolls were loaded into the delivery trucks. As a manager, Perkins had the authority to promote, hi re, discipline, and fire, but the record indicates that generally she received permission from her direct supervisor, the plant manager, before taking any of these actions. Six months after hiring Perkins, Rock-Te nn hired Tom Shannon in January 2011 as the plant manager. In that positi on, Shannon was responsible for supe rvising the five different plant departments, including the ship ping department. The relationsh ip between Perkins and Shannon appears to have been strained. Perkins repeat edly made suggestions to Shannon about ways to improve the shipping department, specifically ab out how to reduce “detention costs,” which are costs charged by the trucking companies for time th at the delivery trucks spend at the plant waiting to be loaded, but Shannon did not implement these changes. Shannon assigned Perkins additional job responsibi lities but did not increase her compensation. In 2013, Perkins asked Shannon to provide her w ith a “lead,” a title used to signify a union employee that assists a department supe rintendent. The 2009-2013 collective bargaining agreement provided: Lead person functions will include implementation of their supervisor’s orders and the making of necessary decisions in th e absence of their supervisor as these decisions pertain to the normal operations of the Company. Lead persons will have no management rights and shall have no authority to hire, fire, promote,No. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-3- discipline, distribute paychecks, nor will they be held responsible in the event there are errors in the di stribution of overtime. Shannon agreed to add a lead position to the shipping department, and Perkins and Shannon selected Gary Wood to fill the role. Wood had worked at the Battle Creek mill since 1994, first as a generalist, then in the machine departme nt, and since 2009, in the shipping department. Upon being selected for the lead position, Wood wa s given an initial 12 percent pay increase, which was required by the CBA. As lead, Wood assisted Perkins with all as pects of her job. He took over her job responsibilities on the weekends, when she was not at work. His pay rate was dictated by the CBA, and he received time-and-a-half for every overtime hour worked, as well as double pay on Sundays, holidays and for any hour worked beyond tw elve hours in a row. Wood explained that while working as lead for Perkins, he occasionally was elevated to “production lead” when Perkins was on vacation or away from the mill. He received another 12 percent increase in pay for time he spent as production lead. Wood testif ied that the production-lead pay increase is not in the “actual contract” but that it had been negotiated between the union and management. After becoming lead, Wood genera lly worked over 70 hours a w eek, and in 2013, he earned $108,954. Perkins resigned in February 2014, citing a “l oss of confidence” in Shannon’s ability to manage. At the time of her resignation, Pe rkins was earning $78,463 a year. After her resignation, Rock-Tenn posted the shipping supe rintendent position and listed the maximum salary as $70,000. In th e meantime, Shannon assigned the major ity of Perkins’s responsibilities to Wood. Wood, however, remained an hourly uni on employee and thus still did not have authority to hire, fire, promote, or discipline. Rock-Tenn ultimatel y decided not to hire a salaried shipping superintendent to replace Perkins and, instead, decided that Wood would continue toNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-4- perform the majority of the res ponsibilities previously de signated to the shi pping superintendent. As a permanent production lead, Wood received 12 percent more—at all times—than his base pay rate as regular lead. Wood earned $113,672.54 in Social Security wages in 2014. Eventually, Monica LeGrand was selected to be Wood’s lead. As l ead, she received a 12 percent pay increase and another 12 percent increase for any periods of time when she worked as the production lead, if Wood was away from the mill. Wood s upervised the lead and other shipping department employees and coordinate d and scheduled the shipments. Shannon was Wood’s direct supervisor. Perkins filed an action against Rock-Tenn, alleging that it paid her less than male employees in her position, in violation of severa l federal and state statutes, and that Rock-Tenn failed to provide her with notice of continuing health-care coverage, as required under COBRA. Rock-Tenn moved for summary judgment, which the district court granted as to all claims. Perkins appeals the district cour t’s grant of summary judgment as to her claim that Rock-Tenn violated the Equal Pay Act, by paying Wood more money for doing equal work. She also appeals the district court’s gran t of summary judgment to the de fendant on her COBRA claim.

DISCUSSION

Standard of Review “Our standard of review of a grant of summary judgment is de novo ; we use the same test used by the district court.” Whittlesey v. Cole , 142 F.3d 340, 342 (6th Cir. 1998). “Summary judgment is appropriate if, after an opportunity for di scovery, the moving party demonstrates that there is no genuine issue of material fact as to the existence of an element essential to the nonmoving party’s case and on which the non-moving party would bear the burden of proof at trial.”No. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-5- Martin v. Ohio Tpk. Comm’n , 968 F.2d 606, 608 (6th Cir. 1992) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). “In re viewing a summary judgment mo tion, credibility judgments and weighing of the evidence are prohib ited. Rather, the evidence should be viewed in the light most favorable to the non-moving party.” Biegas v. Quickway Carriers, Inc. , 573 F.3d 365, 374 (6th Cir. 2009). Equal Pay Act In an effort to address “the age-old belief in women’s inferiority and to eliminate the depressing effects on living sta ndards of reduced wages for female workers and the economic and social consequences which flow from it, ” the Equal Pay Act prohi bits employers from paying an employee less than an employee of th e opposite sex, if both employees are performing equal work. Bence v. Detroit Health Corp ., 712 F.2d. 1024, 1029 (6th Cir. 1983) (internal quotations omitted). The district co urt found that Perkins established a prima facie case of wage discrimination, but determined that Rock-Tenn had successfully established an affirmative defense. Additionally, the district court found that Perkins failed to offer any evidence that Rock-Tenn’s affirmative defense was pretexual.

a. Perkins’s Prima Facie Case To make a prima facie case of wage discrimination under the Equal Pay Act, a plaintiff “must show that an employer pays different wa ges to employees of opposite sexes ‘for equal work on jobs the performance of which requires e qual skill, effort, and responsibility, and which are performed under similar working conditions.’” Beck-Wilson v. Principi , 441 F.3d 353, 359 (6th Cir. 2006) (quoting Corning Glass Works v. Brennan , 417 U.S. 188, 195 (1974)). “Equal work” does not necessarily mean that two jobs must be identical or share a title; rather, “[i]n determining whether a comparator is appropriate for the purposes of an [Equal Pay Act] claim,No. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-6- our focus is on actual job requirements and duties, rather than job classifications or titles.” Id. at 362. “The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance. . . . Skill includes consid eration of such factors as experience, training, education, and ability. It must be measured in terms of the performan ce requirements of the job.” 29 C.F.R. § 1620.15(a). “W hether a job is substantially equal for purposes of the [Equal Pay Act] is determined on a case-by-case basis and ‘resolved by an overall comparison of the work, not its individual segments.’” Beck-Wilson , 441 F.3d at 359. (quoting Odomes v. Nucare,
Inc. , 653 F.2d 246, 250 (6th Cir. 1981)). The district court found that the work performed by Perkin s in her role as “shipping superintendent” and the work performed by Wood as “production lead” after Perkins’s resignation to be equal work for purposes of th e statute. We agree. In explaining the responsibilities associated with each of their respective roles, Perkins and Wood described the same primary tasks: managing the shipping floo r, supervising the shippers, coordinating with customer service, and creating the shipment sc hedule. Wood explained that when he worked under Perkins as a “lead,” he helped her perform the shipping-superintendent duties, and that he performed these duties on a full-time basis as “production lead” after Perkins re signed. After Perkins left, Rock-Tenn did not hire a ne w “shipping superintendent” because Wood was covering the main job responsibilities. “[E]vi dence that the positions being compared are fungible can support a prima facie case under the [Equal Protection Act].” Beck-Wilson , 441 F.3d at 360. Both Perkins, as shipping superi ntendent, and Wood, as production lead, were responsible for supervising th e shipping department employees. Both worked with a union employee in the “lead” position. Both were supervis ed directly by Shannon. In short, the record contains sufficient evidence such that a reasonable jury could conclude that the positions ofNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-7- “shipping superintendent” and “p roduction lead” were fungible unde r the circumstances in this case and, therefore, that th ey required “equal work” unde r the Equal Pay Act.
b. Rock-Tenn’s Affirmative Defense “Once the plaintiff establishe s a prima facie case, the defendant must ‘prove’ that the wage differential is justified under one of the four affirm ative defenses set forth under § 206(d)(1) of the Equal Pay Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of pro duction; or (4) any other f actor other than sex.” Buntin v. Breathitt Cty. Bd. of Educ. , 134 F.3d 796, 799 (6th Cir. 1998). Unlike the Title VII framework, in which defendants only have to assert a legitimate, non-discriminatory reason for the treatment at issue before the burden shifts b ack to the plaintiff to show pretext, under the Equal Pay Act, the defendant bears the burden of proof in establishing an affirmative defense. Beck-Wilson , 441 F.3d at 360. “Thus the district cour t’s grant of [a defendant’s] motion for summary judgment can be upheld only if the record shows that [a defendant] established the defense so clearly that no rational jury could have found to the contrary.” Id. at 365 (internal quotations omitted). The “factor other than sex” defense does not encompass all other factors—at a minimum, it must be a factor that was adopt ed for a legitimate business reason. E.E.O.C. v. J.C. Penney
Co. , 843 F.2d 249, 253 (6th Cir. 1988). “[T]he burden of proving that a factor other than sex is the basis for a wage differ ential is a heavy one.” Timmer v. Michigan Dept. of Commerce , 104 F.3d 833, 843 (6th Cir. 1997). Nevertheless, the di strict court found that Rock-Tenn successfully proved that the wage differential at issue was ju stified under the Equal Pa y Act. The district court ruled that “[i]t cannot be disputed that paying one employee more than another based on aNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-8- different measure of compensation (hours worked ve rsus an annual salary) in accordance with an agreement with a union is a le gitimate business reason.” The district court was correct in finding th at Rock-Tenn met its bu rden of proving that the wage differential was justified based on factor s other than sex by establishing that any pay differential between Perkins and Wood was base d on experience, the existence of an hourly position, wage earnings history, and the fact that Wood’s pay was set by a collective bargaining agreement. Our circuit has previously found that a “[a] wage differential based on . . . experience is a factor other than sex for purpos es of the Equal Pay Act.” Balmer v. HCA, Inc. , 423 F.3d 606, 612 (6th Cir. 2005), abrogated on other grounds by Fox v. Vice , 563 U.S. 826 (2011). Additionally, “[c]onsiderat ion of a new employee’s prior sala ry is allowed as long as the employer does not rely solely on prior sa lary to justify a pay disparity.” Id. There are no issues of fact regarding Wood’s leng thy tenure at Rock-Tenn or hi s salary prior to Perkins’s resignation. Even before we consider Wood ’s union membership, the fact that Wood had worked at Rock-Tenn for 20 years, and the fact that his salary at the time of Perkins’s resignation was over $100,000, are both legitimate factors other th an sex that justify the wage differential. As the district court emphasized, however, the most persuasive justification for the wagedifferential between Wood and Perk ins is the fact that Wood wa s a union employee and Perkins was not. There is no question that the decisions made as a result of negotiations between union and employer are made for legitimate business pu rposes; thus, a wage differential resulting from status as a union member constitutes an acceptabl e “factor other than sex” for purposes of the Equal Pay Act. As a union employee, Wood was co mpensated on an hourly basis, rather than a set salary. Wood, and a ll union employees, received time-and- a-half pay for every hour workedNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-9- in excess of 40 hours, and double time on Sundays and holidays. Both parties agree that when Wood was assigned to the lead position under Perkins, the collective bargaining agreement required that he receive a 12 per cent pay increase. Even before Wood was elevated to full-time “production lead,” he earned significantly more than Perkins, largely due to the amount of money he was able to earn through overtime and weekend work. Perkins argues on appeal that Rock-Tenn failed to meet its burden of proof because it did not sufficiently prove that sex played no role in the pay differential. Although Rock-Tenn’s decision to convert Perkins’s former position to a union position clearly did benefit Wood, the record does not contain evidence that Rock-Te nn’s decision to convert the position was based on Wood’s sex. If Perkins had evidence that Ro ck-Tenn hired only men fo r union positions, while relegating female applicants to what turned out to be a lower-paid management track, this shipping superintendent job reassi gnment would be suspect. However, the record contains no such evidence. In fact, there is evidence in the record that Rock-Tenn assigned a woman, Monica LeGrand, to work as lead under Wood. Le Grand received a 12 percent pay increase as lead, and an additional 12 percent increase for a ny time she spent filling in for Wood—the same pay increases Wood received while working under Perkins. Based on the evidence of Wood’s experience, tenure, prior salary, and union member ship, and because the record does not contain any evidence that the job reclassification was ba sed on discriminatory animus, the district court concluded correctly that Rock-Tenn successfu lly established an affirmative defense.

c. Evidence of Pretext In an Equal Pay Act claim, the “plaintiff bears the burden of producing evidence of pretext solely where a reasonable jury viewing the defendant’s evidence could find only for the defendant; the plaintiff, howev er, never bears the burden of persuasion regarding the affirmativeNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-10- defenses.” Buntin , 134 F.3d at 799 n.7 (emphasis in origin al). The district court found that Perkins failed to offer evidence of pretext. Perkins puts forth several theories in an attempt to prove that the pay differential was based on sex, rather than Wood’s experience, former salary, or union membership. None , however, hold water. First, Perkins points out that in converti ng the shipping superint endent position from a salaried management position to an hourly uni on position, Rock-Tenn had to pay Wood over $35,000 more than what Perkins had earned. Perkin s argues that this de cision is “economically irrational,” “unusual,” and “counter -intuitive.” She further specu lates that “employers usually resist the expanding of unionization.” Perkins belie ves that a reasonable jury could infer, based on this fact, that Rock-Tenn’s decision to co nvert the position to a union position was made based on sex. Although proving an affirmative de fense is a heavy burden, this argument is insufficient to disprove Rock-Tenn’s e xplanation for the pay differential. Second, Perkins points out that the additiona l 12-percent pay increase given to lead employees who step in as “produc tion leads” is not referenced specifically in the collective bargaining agreement. She contends that the de fendant generously volunt eered to “sweeten the deal” for Wood, by giving him a permanent 12-pe rcent increase when he became a full-time production lead. Based on the record, however, it appears to be standard procedure for the company to increase a union lead’s pay by 12 percent for time spen t filling in as “production lead.” The district court found that Perkins requested that Wood receive a 12-percent increase in pay for the time he spent filling in for her while she was away from the mill. Similarly, LeGrand received the same pay increase when she became lead, and a further 12-percent pay increase for periods of time she covered for Wood. Additio nally, both Shannon and Wood, who is the unionNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-11- vice-president, agreed that the additional 12- percent pay increase wa s negotiated through the collective-bargaining process. Finally, Perkins points out th at Shannon ignored all of th e cost-saving changes she suggested but agreed to make the same cha nges when suggested by Wood. Additionally, she explains that she was not given a raise after Shannon increased he r responsibilities as shipping superintendent. Perkins argues that the district court did not cons ider these facts, which, in her opinion, are compelling evidence of sexism. Howeve r, Perkins fails to connect adequately either of these alleged incidents to Rock-Tenn’s de cision to assign her duties to Wood after her resignation or Rock-Tenn’s decision to convert the shipping superintendent position into a “production lead” position to be filled by a union employee. As a result, these arguments are unpersuasive and fail to show that Rock-Te nn’s affirmative defense regarding the pay differential was pretextual. Because Perkins faile d to produce evidence on which a reasonable jury could determine that Rock-Tenn’s affirmative defense was pretextual, the district court was correct in granting Rock-Tenn’s motion for su mmary judgment as to this claim. COBRA Notice Next, Perkins asks us to review the distri ct court’s dismissal of her COBRA-violation claim. Perkins’s complaint alleged that Rock-Tenn failed to comply with COBRA because it did not send her a notice that she was entitled to c ontinue her health-insur ance benefits. Under COBRA, employers are required to notify employees of their right to continue health-insurance coverage after a “qualifying event.” 29 U.S. C. § 1166(a); 29 U.S.C. § 1162. Termination of employment is a qualifying event. 29 U.S.C. § 1 163(2). The district court granted Rock-Tenn’s motion for summary judgment as to this claim. We review a grant of summary judgment de

novo. Whittlesey , 142 F.3d at 342. Here, however, Perkin s’s challenge primar ily concerns theNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-12- district court’s consideration of an affidavit given in support of Rock-Tenn’s motion for summary judgment. We generally review a district court’s eviden tiary rulings for an abuse of discretion. United States v. Clay , 667 F.3d 689, 693 (6th Cir. 2012). We will reverse a district court’s evidentiary decisions only when we find that such abuse of discretion has caused more than harmless error. Cooley v. Carmike Cinemas, Inc. , 25 F.3d 1325, 1330 (6th Cir. 1994). In its motion for summary judgment, Rock-Tenn included an affidavit from Karol Fecteau, Rock-Tenn’s human resources manager, explaining that a third-party vendor, Aon Hewitt, was responsible for sending COBRA notic es on Rock-Tenn’s behalf. Rock-Tenn also attached screenshots from Aon Hewitt’s comput er database, indicating that COBRA notices had been sent to Perkins on March 7, 2014, and Februa ry 17, 2015. In her affidavit, Fecteau averred that the screen shots confirm that the notices had been sent to Perkins. Perkins argued that Fecteau’s affidavit and the computer screenshot s were inadmissible hearsay and, in response, Rock-Tenn submitted a second affidavit along with its reply br ief in support of the motion for summary judgment. The second affidavit is from Clyde Watson, a delivery manager directly employed by Aon Hewitt. a. Unfair Prejudice First, Perkins argues that she was unfairly prejudiced by the di strict court’s consideration of the Watson affidavit submitted with Rock-Tenn’ s reply brief, because she did not have an opportunity to respond. We have previously held th at “[w]hile the Rules ar e silent as to timing matters with reply affidavits, precedent establis hes that, in the face of new evidence, the court should permit the opposing party an opportunity to respond.” Peters v. Lincoln Elec. Co. , 285 F.3d 456, 477 (6th Cir. 2002). However, Rock-T enn filed its reply brief on January 22, 2016, more than four months before the district co urt ruled on the motion. Seemingly, Perkins hadNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-13- ample opportunity to request that the court allow her to respond to this new evidence, had she desired. See id. (finding that a reply a ffidavit filed one week before a hearing still provided the opponent sufficient time to respond). There is no evidence that Perkins made any effort to respond, despite having sufficient tim e to do so and, therefore, this argument fails to establish that the district court abused its disc retion in admitting the Watson affidavit. b. Hearsay Second, Perkins contends that the district court erred in admitting the Watson affidavit because the affidavit contains inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or th e hearing, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay evidence cannot be considered on summary judgment. See Carter v. Univ. of Toledo , 349 F.3d 269, 274 (6th Cir. 2003). The district court held that the Fecteau affi davit and the accompanyi ng screen shots of Aon Hewitt’s database were inadmissible as h earsay, because the screenshot was “merely commentary and a picture from an unknown source pur porting to establish the truth of the matter asserted” and because Fecteau did not assert that the data depicted by the screenshot was a record kept in the ordinary cour se of business. The district court determined that the evidence did not fall under any of the hearsay exceptio ns and, therefore, that “[Fecteau ’s] affidavit and its exhibits are not sufficient in themselves to establis h that [the] Defendant complied with COBRA.” The district court gave much gr eater credence to the Watson affidavit. In that affidavit, Watson asserted that he had worked for Aon Hewitt since 1998 and as a “delivery manager” since April 2015. As delivery manager, Wats on was responsible for ensuring that COBRA notices were sent to departing Rock-Tenn em ployees, as directed by Rock-Tenn. Watson’s affidavit explained that Aon Hewitt “maintains cert ain records in the ordinary course of businessNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-14- on behalf of Rock-Tenn.” He further stated, “My review of Aon Hewitt’s computer system demonstrates that COBRA notifications were sent by regular U.S. mail to Ms. Perkins twice: first on March 7, 2014 and again on February 15, 2015.” Watson does not claim that he personally sent the notices to Perkins or documented such mailings in the computer system—nor could he have, because he did not take on the role as delivery manager until after Aon Hewitt mailed Perk ins her notices. Watson stated only that he reviewed the company’s computer data—pres umably input by another Aon Hewitt employee— and Rock-Tenn offered this statement for the truth of the matter asserted. This statement is also hearsay and is admissible only if it satis fies one of the hearsay exceptions. Although the district court did not articulate the relevant applicable hearsay exception, we conclude that Watson’s affidavit, and the A on Hewitt computer records referenced therein, are admissible under the business record excep tion. Rule 803(6) of the Federal Rules of Evidence permits records of regularly conducted busin ess activity to be admitted into evidence if the records: (1) “were create d in the course of a regularly conducted bus iness activ ity,” (2) “were kept in the regular course of that business,” (3) “resulte d from a regular practice of the business to create such documen ts,” and (4) “were created by a person with knowledge of the transaction or from information tr ansmitted by a person with knowledge.” United States v. Collins , 799 F.3d 554, 582 (6th Cir. 2015) (internal quotations omitted). Fulfillment of the business record excepti on conditions must be shown through the testimony of the custodian, a qualified w itness, or through a certification. Id. at 583. “[I]t is not necessary that the person laying the foundation for the introduction of the business record to have personal knowledge of their preparation.” Dyno Const. Co. v. McWane, Inc. , 198 F.3d 567, 576 (6th Cir. 1999). “All that is required of the witness is that he or she be familiar with theNo. 16-1798 Perkins v. Rock-Tenn Services, Inc.

-15- record-keeping procedures of the organization.” Id. As a long-time Aon Hewitt employee, and the current delivery manager of COBRA notices , Watson was qualified to lay a foundation for the introduction of Aon Hewitt’ s computer records. Watson’s affidavit explains that Aon Hewitt provides record-keeping services for RockTenn, provides COBRA notifications to departing Rock-Tenn empl oyees, and maintains certain records in the ordinary course of business on be half of Rock-Tenn. Watson specifies that Aon Hewitt does not retain hard copies of COBRA notic es, but it does retain computer records. It was not an abuse of discretion for the district court to admit this hearsay evidence under the business record exception. In consideration of Watson’s affidavit and Aon Hewitt’s computer records, there is no issue of material fact that, th rough a third-party vendor, Rock-Tenn sent Perkins written notice of her option to continue her health insurance pursuant to COBRA. See also 29 C.F.R. § 2590.606- 1; 29 C.F.R § 2520.104(b)-1 (explaining that mail is a permissible way to deliver notice).

CONCLUSION For the reasons set out above, we AFFI RM the district court’s judgment.