                                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              ______________

                  No. 16-1471
                ______________

                JOSEPH EGAN,

                                       Appellant

                       v.

     DELAWARE RIVER PORT AUTHORITY

                ______________

     APPEAL FROM THE UNITED STATES
          DISTRICT COURT FOR THE
    EASTERN DISTRICT OF PENNSYLVANIA
             (D.C. No. 2:15-cv-03695)
      District Judge: Hon. Timothy J. Savage
                  ______________

            Argued: January 12, 2017
               ______________

Before: SMITH, Chief Judge, JORDAN and SHWARTZ,
                   Circuit Judges.

             (Filed: March 21, 2017)
Michael J. Salmanson, Esq. [ARGUED]
Scott B. Goldshaw, Esq.
Salmanson Goldshaw, P.C.
1500 John F. Kennedy Boulevard
Two Penn Center, Suite 1230
Philadelphia, PA 19102

      Counsel for Appellant

Rachel Goldberg, Esq. [ARGUED]
United States Department of Labor
Division of Fair Labor Standards
Room N2716
200 Constitution Avenue, N.W.
Washington, DC 20210

      Counsel for Amicus Appellant

Zachary R. Davis, Esq. [ARGUED]
Danielle M. Dwyer, Esq.
Stevens & Lee
1818 Market Street
29th Floor
Philadelphia, PA 19103

      Counsel for Appellee

                    ______________

               OPINION OF THE COURT
                   ______________

SHWARTZ, Circuit Judge.




                              2
        Plaintiff Joseph Egan brought suit against defendant
Delaware River Port Authority, claiming that the Port
Authority discriminated against him in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621
et seq. (the “ADEA”), and the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA”), and
retaliated against him for exercising his right to take leave
under the Family and Medical Leave Act of 1993, 29 U.S.C.
§ 2601 et seq. (the “FMLA”). A jury found that he was not
the victim of discrimination or retaliation. Egan appeals,
arguing that the District Court erred in: (a) refusing to give a
mixed-motive jury instruction in connection with his FMLA
claim; and (b) excluding testimony from one of Egan’s co-
workers.

       To resolve this appeal, we must examine the regulation
upon which Egan’s FMLA retaliation claim is based and
determine whether there is any requirement that a plaintiff
introduce direct evidence of retaliation to pursue a mixed-
motive theory of liability.       As we will explain, the
Department of Labor (the “DOL”) acted within its authority
to promulgate the regulation and the regulation’s language
permits a plaintiff to rely on such a theory so long as the
evidence, whether direct or circumstantial, permits a
reasonable juror to conclude that the plaintiff’s use of FMLA
leave was a negative factor in the employer’s adverse
employment decision. Because the District Court erred in
requiring Egan to provide direct evidence of retaliation, we
will vacate the FMLA verdict and remand on that claim.

       As to Egan’s ADA claim, because the Court acted
within its discretion in excluding the testimony of Egan’s co-




                               3
worker, it did not commit reversible error impacting those
claims, and we will affirm the verdict in favor of the Port
Authority on those counts.

                             I

       Egan worked for the Port Authority from July 2008
until October 2012. He was hired as a Projects Manager for
Special Projects. His primary responsibility was to manage
fleet assets such as police vehicles, heavy equipment, and
other vehicles. During his first two years of employment,
only a small percentage of his work involved “economic
development,” which concerned the Port Authority’s efforts
to improve the communities in surrounding areas. App. 150-
51. He did not perform any economic development work
after 2010.

       Egan reported to Deputy CEO Robert Gross until
February 2012, when Michael Conallen replaced Gross. In
March 2012, following a meeting with Conallen, Egan was
transferred on special assignment to the Engineering
Department and began reporting to Michael Venuto, the Port
Authority’s Chief Engineer. He was not given a new job
description, and the duration of the assignment was not
determined at that time.

       Egan has suffered from migraine headaches since a
1995 accident. Egan testified that the frequency of his
migraines increased “almost instantaneously” with his
transfer to the Engineering Department, and he applied for
FMLA leave in April 2012. App. 77. The Port Authority
approved Egan’s request for intermittent FMLA leave. An
issue arose in July 2012 because Egan had been reporting




                             4
only the “approximate” number of hours he had worked,
rather than the actual number of hours he had worked and
took FMLA leave, and this discrepancy in Egan’s reported
hours “appear[ed] to be causing a hardship in his
department.” App. 612.

        Evidence concerning this alleged “hardship” was
adduced during discovery. The parties deposed one of Egan’s
Engineering Department co-workers, Mark Green. Green
testified that he overheard a conversation between Egan and
Venuto in which Venuto complained, in an “upset and angry”
tone, about Egan’s ability to complete tasks because of health
issues. App. 611. Egan sought to elicit testimony about this
conversation from Green at trial but the District Court
precluded it because Green was not a participant in the
conversation and heard only part of it while walking by
Egan’s office and, to permit it, would be misleading to the
jury.

        During trial, Egan did not recount such a conversation
with Venuto. Instead, in response to the question, “Did
[Venuto] ever say anything to you that indicated he was
unhappy with the way you were using FMLA leave?”, Egan
testified:

      A. Well, on one occasion he came into my
      office and wanted me to—he was angry. He
      was upset. I was there working and he said in
      the future he wanted me when I left the
      premises to wave to his assistant as I was
      leaving, and that is somewhat unusual so—




                              5
       Q. Did you feel that that suggested that he was
       unhappy with the way you were using FMLA
       leave?
       A. I think there was a connection and that’s
       speculation on my part, but I felt that way.

App. 108-09. Egan also confirmed the accuracy of the
following deposition testimony:

       Did [Venuto] ever say anything to you that
       indicated that he was not happy with your usage
       of FMLA leave?
       Answer: No.

App. 109.

       In August 2012, Venuto informed Conallen that he
would not request positions for Egan and another employee.
In addition, in October 2012, the Port Authority decided to
eliminate its economic development positions. Thereafter,
and while he was on FMLA leave, Egan was informed that all
“economic development functions” were being eliminated,
his “temporary reassignment” to the Engineering Department
was “deemed completed,” and he was terminated. App. 90.

       Egan filed a complaint alleging violations of the
ADEA, ADA, and FMLA. After discovery and motion
practice, the case proceeded to trial. During the trial, the jury
heard testimony from Egan, Venuto, and Green, among
others. After the presentation of the evidence, the District
Court resolved a dispute concerning the jury instructions. At
the Court’s request, the parties presented a joint set of
instructions that included the Third Circuit Model Civil Jury




                                6
Instructions 10.1.3 and 10.1.2, respectively embodying the
pretext      and   mixed-motive    theories   for   proving
discrimination. The District Court denied Egan’s request for
                 1

a mixed-motive instruction for his FMLA retaliation claim,
concluding that a mixed-motive instruction was not warranted
because it should not be given in the FMLA context and, in
any event, Egan had not presented direct evidence of
retaliation.




      1
          “Generally speaking, in a ‘mixed-motive’ case a
plaintiff claims that an employment decision was based on
both legitimate and illegitimate reasons. Such cases are in
contrast to so-called ‘pretext’ cases, in which a plaintiff
claims that an employer’s stated justification for an
employment decision is false.” Connelly v. Lane Constr.
Corp., 809 F.3d 780, 787 (3d Cir. 2016). Both theories have
been used in FMLA cases in this Circuit. See, e.g., Budhun
v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256-57 (3d Cir.
2014) (pretext theory); Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012) (mixed-
motive theory). Under the FMLA regulation at issue in this
case, a plaintiff pursuing a mixed-motive theory must show
that exercise of FMLA rights was “a negative factor” in the
employer’s employment decision. 29 C.F.R. § 825.220(c). A
plaintiff who proceeds to trial under a pretext theory must
prove that a protected characteristic or the exercise of a
protected right was a determinative factor and therefore had a
determinative effect on the decision such that in the absence
of the characteristic or protected conduct, the adverse
employment action would not have occurred. See Miller v.
CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995) (en banc).




                              7
       The jury returned a verdict for the Port Authority on
all counts. Egan appeals, arguing that the District Court erred
in denying his request for the mixed-motive instruction for his
FMLA claim and, with respect to the ADA and FMLA
claims, erred in precluding him from presenting Green’s
testimony about Egan and Venuto’s conversation.

                              II2

                              A

        We will first examine Egan’s challenge to the District
Court’s ruling denying his request for a mixed-motive jury
instruction in connection with his FMLA retaliation claim.
When a party properly objects to a jury instruction, as here,
“we exercise plenary review to determine whether the
instruction misstated the applicable law.”            Franklin
Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 338 (3d
Cir. 2005). In this case, this review entails determining
whether the DOL properly exercised its authority to
promulgate the regulation upon which Egan’s retaliation
claim is based, and, if so, whether it embodies a reasonable
construction of the FMLA, including whether its inclusion of
a mixed-motive approach to liability is permitted under Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and
University of Texas Southwestern Medical Center v. Nassar,
133 S. Ct. 2517 (2013). If such a theory is permissible, then
we must decide whether a plaintiff is required to present
direct evidence to obtain a mixed-motive jury instruction.

      2
        The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.




                               8
                              1

       Our Court has premised liability for FMLA retaliation
claims on a DOL regulation, 29 C.F.R. § 825.220(c), which
embodies the DOL’s interpretation of the FMLA. Until now,
however, we have not been required to examine whether the
regulation embodies a permissible construction of the FMLA
to which we must defer under Chevron v. Natural Resources
Defense Council, 467 U.S. 837 (1984). To make this
determination, we must answer two questions:

      First, always, is the question whether Congress
      has directly spoken to the precise question at
      issue. If the intent of Congress is clear, that is
      the end of the matter; for the court, as well as
      the agency, must give effect to the
      unambiguously expressed intent of Congress.
      If, however, the court determines Congress has
      not directly addressed the precise question at
      issue, the court does not simply impose its own
      construction on the statute, as would be
      necessary in the absence of an administrative
      interpretation. Rather, if the statute is silent or
      ambiguous with respect to the specific issue, the
      question for the court is whether the agency’s
      answer is based on a permissible construction of
      the statute.

Id. at 842-43. The question of whether Congress has spoken
on the question at issue is known as Chevron step one. If we




                              9
determine that Congress has not spoken on the precise issue,
then we proceed to what is known as Chevron step two,
where we examine whether the interpretation of the statute as
embodied in the regulation is reasonable.

        At Chevron step one, courts may “‘employ [ ]
traditional tools of statutory construction [to] ascertain[ ] that
Congress had an intention on the precise question at issue.’”
Zheng v. Gonzales, 422 F.3d 98, 112 (3d Cir. 2005) (quoting
INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)). We
“read the language in [the] broader context of the statute as a
whole.” Geisinger Cmty. Med. Ctr. v. Sec’y U.S. Dep’t of
Health & Human Servs., 794 F.3d 383, 391 (3d Cir. 2015).
“If the statute’s language is clear and unambiguous, we
uphold the plain meaning of the statute.” Cheruku v. Att’y
Gen. of U.S., 662 F.3d 198, 202 (3d Cir. 2011).

        We thus turn to the language of the FMLA to
determine whether it provides precise guidance as to whether
the FMLA protects an employee from retaliation. Under the
FMLA, it is “unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any
right provided under this subchapter,” including the right to
seek or use FMLA leave. 29 U.S.C. § 2615(a)(1). The
FMLA also makes it “unlawful for any employer to discharge
or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.” Id.
§ 2615(a)(2).




                               10
        The statute does not specifically provide for a
retaliation claim.3 In light of Congress’s language and goals,
however, we cannot say that this silence means that Congress
did not intend to protect those who invoke their FMLA rights
from retribution. Congress chose words that broadly protect
individuals who invoke their FMLA rights. For instance, in
§ 2615(a)(1), Congress made it “unlawful for any employer to
interfere with . . . the exercise of . . . any right provided” by
the FMLA which includes the right to take up to “12
workweeks of leave during any twelve-month period” if the
employee has a “serious health condition that makes the
employee unable to perform the functions of the position of
such employee.” 29 U.S.C. § 2612(a)(1)(D). This right could
be interfered with by, for example, prohibiting the individual

       3
           Our Court has described, in general terms, §
2615(a)(1) as the “interference” provision and § 2615(a)(2) as
the “retaliation” provision. See Lichtenstein, 691 F.3d at 301;
see also Hansler, 798 F.3d at 158 (“Retaliation claims arise
out of the [FMLA’s] prohibition on employers ‘discharg[ing]
or in any other manner discriminat[ing] against any individual
for opposing any practice made unlawful’” (quoting 29
U.S.C. § 2615(a)(2) and citing § 825.220(c)). The DOL,
however, has concluded that retaliation flows from
§ 2615(a)(1). 73 Fed. Reg. 67,986 (Nov. 17, 2008) (stating
that “[a]lthough section 2615(a)(2) of the Act also may be
read to bar retaliation . . . , the Department believes that
section 2615(a)(1) provides a clearer statutory basis for
§ 825.220(c)’s prohibition on discrimination and retaliation”).
Since we are examining only the DOL’s interpretation of the
interference provision of § 2615(a)(1), we need not address
§ 2615(a)(2)’s prohibition of retaliation for “opposing any
practice made unlawful” by the FMLA.




                               11
who has such a condition from being permitted to take such
leave or by requiring the person to engage in significant work
while on FMLA leave. Interference could also occur if an
employee fears that he or she will be retaliated against for
taking such leave. Thus, because the term “interfere with” is
susceptible to multiple interpretations, and the statutory
language does not directly address whether retaliation is
among the actions an employer is prohibited from taking
under the FMLA, Congress has not spoken on the “precise
question” before us. Chevron, 467 U.S. at 842.

        Therefore, we move to Chevron step two to determine
whether the DOL’s interpretation of § 2615 to include
prohibiting retaliation “is based on a permissible construction
of the statute” to which we are required to defer. Id. at 843.
As the Chevron Court instructed, “legislative regulations are
given controlling weight unless they are arbitrary, capricious,
or manifestly contrary to the statute.” Id. at 844. “A court
may conclude that a regulation is arbitrary and capricious
only if the agency relied on facts other than those intended by
Congress, did not consider an important aspect of the issue
confronting the agency, provided an explanation for its
decision which runs counter to the evidence before the
agency, or is entirely implausible.” Gardner v. Grandolsky,
585 F.3d 786, 790 (3d Cir. 2009) (citation and internal
quotation marks omitted). Although our “inquiry into the
facts is to be searching and careful, the ultimate standard of
review is a narrow one,” and we are “not empowered to
substitute [our] judgment for that of the agency.” Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

       Congress empowered the DOL to “prescribe such
regulations as are necessary to carry out” the FMLA. 29




                              12
U.S.C. § 2654. The DOL identified § 2615(a)(1) as the
source of the prohibition against retaliation and promulgated
a regulation that made retaliation for exercising FMLA rights
unlawful. The regulation, 29 C.F.R. § 825.220(c), states that
“[t]he Act’s prohibition against interference prohibits an
employer from discriminating or retaliating against an
employee or prospective employee for having exercised or
attempted to exercise FMLA rights,” and further states that
“employers cannot use the taking of FMLA leave as a
negative factor in employment actions.”            29 C.F.R.
§ 825.220(c).

        We conclude that § 825.220(c) is a reasonable
interpretation of § 2615(a)(1). The DOL’s interpretation is
consistent with the purposes of the FMLA, which include
“entitl[ing] employees to take reasonable leave for medical
reasons” without interference. 29 U.S.C. §§ 2601(b)(2),
2615(a)(1); Bachelder v. Am. W. Airlines, Inc., 259 F.3d
1112, 1119 (9th Cir. 2001) (discussing legislative history and
stating, among other things, that “[t]he FMLA provides job
security to employees who must be absent from work because
of their own illnesses”).            Indeed, “the established
understanding at the time the FMLA was enacted was that
employer actions that deter employees’ participation in
protected activities constitute ‘interference’ or ‘restraint’ with
the employees’ exercise of their rights,” and “attaching
negative consequences to the exercise of protected rights
surely ‘tends to chill’ an employee’s willingness to exercise
those rights.” Bachelder, 259 F.3d at 1124. To allow an
employer to take an adverse employment action against an
employee who takes FMLA leave would “undoubtedly run
contrary to Congress’s purpose in passing the FMLA.”
Bryant v. Dollar Gen. Corp., 538 F.3d 394, 401 (6th Cir.




                               13
2008). We agree with our colleagues in the Sixth and Ninth
Circuits, as well as the Secretary of Labor, that “to permit
employees to take leave from work for certain family and
medical reasons and to return to the same or equivalent job at
the conclusion of that leave” would be undermined if
retaliation were not prohibited, Br. of Sec’y of Labor as
Amicus Curiae in Support of Appellant 8-9. Thus, the
regulation prohibiting retaliation for exercising FMLA rights
is consistent with Congress’s goal of enabling workers to
address serious health issues without repercussion.

                               2

         Having concluded that the regulation is a reasonable
interpretation of the FMLA’s interference provision, we must
examine the DOL’s decision to impose a requirement to
consider the reason for the employer’s action. We conclude
that it is appropriate for the DOL to set forth in the regulation
what constitutes retaliation, including this requirement for
such a claim.

        The regulation precludes an employer from placing
negative weight on the use of FMLA leave when making an
employment decision. As we explained in Lichtenstein v.
University of Pittsburgh Medical Center, 691 F.3d 294 (3d
Cir. 2012), under the regulation, “employers are barred from
considering an employee’s FMLA leave ‘as a negative factor’
in employment decisions,” and that “an employee does not
need to prove that invoking FMLA rights was the sole or
most important factor upon which the employer acted.” Id. at
301. Thus, under the regulation, an employee who claims
retaliation and seeks to proceed under a mixed-motive
approach must show that his or her use of FMLA leave was




                               14
“a negative factor” in the employer’s adverse employment
action.

        Imposing this requirement makes sense, especially
since a claim of retaliation includes an implication that the
employer was motivated at least in part by the employee’s use
of FMLA leave. The interference provision of § 2615(a)(1)
does not explicitly require a relationship between intent and
outcome. See id. at 312. By including the “a negative factor”
requirement, the DOL further addressed the gap left open by
the statute’s silence on the availability of a claim of
retaliation and recognized that such a claim requires proof
that the employer’s motivation contributed to the adverse
action. Thus, the DOL did not act arbitrarily in including
such a requirement.

                             3

       We next consider whether the selection of a
requirement that a plaintiff show only that the use of FMLA
leave was a negative factor in the employer’s adverse job
action, as opposed to the but-for cause of the action, is
arbitrary or capricious. Congress has embraced both but-for
and mixed-motive approaches in its anti-discrimination laws,
and so long as there is a nonarbitrary basis for the DOL to
select a mixed-motive approach, we are required to defer to
the agency.

        In the ADEA and in Title VII’s anti-retaliation
provision, Congress chose language that made clear that a
plaintiff must prove “but-for” causation between the adverse
employment action and the protected characteristic, in the
case of the ADEA, and the protected act, in the case of Title




                             15
VII retaliation. In Gross, the Supreme Court observed that
“[u]nlike Title VII[’s anti-discrimination provision], the
ADEA’s text does not provide that a plaintiff may establish
discrimination by showing that age was simply a motivating
factor.” 557 U.S. at 174. The text of the ADEA provides that
an employer may not “‘fail or refuse to hire or . . . discharge
any individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s age.’” Id. at 176 (quoting 29 U.S.C. § 623(a)(1)
(emphasis in Gross)). The Court reasoned “the ordinary
meaning of the ADEA’s requirement that an employer took
adverse action ‘because of’ age is that age was the ‘reason’
that the employer decided to act,” and a plaintiff must
therefore prove that age was a “but-for” cause of the
employer’s adverse decision in order to establish a disparate-
treatment claim. Id. at 176-77.

        Similarly, in Nassar, the Supreme Court held that Title
VII retaliation claims—where Title VII “makes it unlawful
for an employer to take adverse employment action against an
employee ‘because’ of certain criteria”—“require proof that
the desire to retaliate was the but-for cause of the challenged
employment action.” 133 S. Ct. at 2528. Notably, the Court
distinguished Title VII’s anti-retaliation provision from its
“principal” anti-discrimination provision, which states that a
plaintiff establishes discrimination when he or she
“demonstrates that race, color, religion, sex, or national origin
was a motivating factor, for any employment practice, even
though other factors also motivated the practice.” Id. at 2526
(emphasis added) (quoting 42 U.S.C. § 2000e-2(m)). The
anti-discrimination provision, with its “lessened causation
standard,” allows for a mixed-motive instruction. See id.




                               16
Thus, based on the statutory language, the Court recognized
that different causation standards may apply to different
claims.

        The FMLA interference provision on which the
regulation is based does not provide a causation standard and
thus does not unambiguously require the use of “but-for”
causation. See Chase v. U.S. Postal Serv., 149 F. Supp. 3d
195, 210 (D. Mass. 2016) (stating that “[t]he statute does not
speak directly to standards for causation and provides no
unambiguous indication that but-for causation is required”
and concluding that § 825.220(c) is entitled to controlling
Chevron deference), aff’d, 843 F.3d 553, 559 n.2 (1st Cir.
2016) (taking no position on Chevron deference or
§ 825.220(c)’s causation standard). Section 825.220(c) fills
in that gap. Its text, which uses the phrase “a negative
factor,” resembles the “lessened causation standard” in
§ 2000e-2(m) and stands in contrast to the “because”
language in the ADEA (at issue in Gross) and Title VII’s anti-
retaliation provision (at issue in Nassar).

       We cannot say that choosing something other than
“but-for” causation is unreasonable. As demonstrated above,
Congress has endorsed the use of a lessened causation
standard in Title VII’s anti-discrimination provisions.
Congress’s choice reflects a view that consideration of any of
the protected characteristics set forth in the statute, namely
race, color, religion, sex, or national origin, is never
permissible, even if it is not the sole reason for the
employment decision. Similarly, in enacting the FMLA,
Congress chose to ensure that those who need to address
serious health issues may do so without interference. The
regulation precludes an employer from considering the use of




                              17
such leave as a negative factor in an employment decision.
Thus, like Title VII’s anti-discrimination provision, it seeks to
ensure that engaging in such protected activity does not
negatively impact an employee. This choice is consistent
with Congress’s goals in enacting the FMLA and the sort of
“legitimate policy choice[ ]” the agency is entitled to make.
Chevron, 467 U.S. at 866; Chase, 149 F. Supp. 3d at 210
(“The relaxed causation standard provided by the [DOL] is
precisely the sort of ‘legitimate policy choice[ ]’ that Chevron
empowers a properly delegated agency to make.” (quoting
Chevron, 476 U.S. at 866) (alteration in Chase)). We cannot
say this approach is arbitrary, and there is nothing to show
that it is inconsistent with the teachings of Gross or Nassar.
See Hunter v. Valley View Local Sch., 579 F.3d 688, 692
(6th Cir. 2009) (observing that “[t]he phrase ‘a negative
factor’ envisions that the challenged employment decision
might also rest on other, permissible factors,” and thus
“continu[ing] to find Price Waterhouse’s burden-shifting
framework applicable to FMLA retaliation claims” after
Gross); see also Bachelder, 259 F.3d at 1122-25 (holding that
§ 825.220(c) “is a reasonable interpretation of the statute’s
prohibition on ‘interference with’ and ‘restraint of’
employee’s rights under the FMLA [§ 2615(a)(1)]” and that
“[t]he Labor Department’s conclusion that employer use of
‘the taking of FMLA leave as a negative factor in
employment       actions’ . . . violates . . . the Act    is . . . a
reasonable one”).

       For these reasons, we hold that the DOL’s use of a
mixed-motive framework is not inconsistent with Nassar and
Gross, and the regulation’s mixed-motive approach is a
permissible construction of the statute.        Therefore,
§ 825.220(c) is entitled to controlling deference under




                                18
Chevron, and a mixed-motive jury instruction is available for
FMLA retaliation claims.

                               4

       Having concluded that a mixed-motive instruction is
available for FMLA retaliation claims, the next question is
the evidentiary threshold to obtain that instruction. As
explained below, the Supreme Court has made clear that
direct evidence is not required to proceed under a mixed-
motive theory of liability.

        In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the
Supreme Court held that direct evidence is not required for a
court to deliver a mixed-motive jury instruction for Title VII
claims under § 2000e-2(m). Id. at 92, 101-02. Section
2000e-2(m) requires only that a plaintiff “‘demonstrat[e]’ that
an employer used a forbidden consideration with respect to
‘any employment practice,’ which “[o]n its face . . . does not
mention, much less require, that a plaintiff make a heightened
showing through direct evidence.” Id. at 98-99 (quoting 42
U.S.C. § 2000e-2(m) (alteration in Desert Palace)). The
Court observed that “Title VII’s silence” regarding the type of
evidence necessary in mixed-motive cases “also suggests that
we should not depart from the “‘[c]onventional rul[e] of civil
litigation [that] generally appl[ies] in Title VII cases,’” which
“requires a plaintiff to prove his case ‘by a preponderance of
the evidence,’ . . . using ‘direct or circumstantial evidence.’”
Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253
(1989) (alterations in Desert Palace)).

       We have followed Desert Palace within and outside of
the Title VII context. See, e.g., Araujo v. N.J. Transit Rail




                               19
Operations, Inc., 708 F.3d 152, 161 (3d Cir. 2013) (citing
Desert Palace and stating that direct evidence is not required
for a retaliation claim under the Federal Rail Safety Act);
Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (stating
that Desert Palace held that a plaintiff need not present direct
evidence in a mixed-motive Title VII discrimination case). In
addition, the Courts of Appeals for the First, Seventh, Ninth,
and Tenth Circuits have said that a plaintiff may establish an
FMLA retaliation claim by either direct or circumstantial
evidence. See Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 999-1000, 1004-05 (10th Cir. 2011); Lewis v. Sch. Dist.
#70, 523 F.3d 730, 742 (7th Cir. 2008); Hillstrom v. Best W.
TLC Hotel, 354 F.3d 27, 30-31 (1st Cir. 2003); Bachelder,
259 F.3d at 1125.

        Like Title VII, the FMLA is silent concerning whether
direct evidence is required to prove a claim. As a result, “we
should not depart from the [c]onventional rule[s] of civil
litigation,” which allow a plaintiff to prove his claim using
direct or circumstantial evidence. Desert Palace, 539 U.S. at
98-99 (citation and internal quotation marks omitted). Thus,
we join our sister circuits in applying Desert Palace and
holding that direct evidence is not required to obtain a mixed-
motive instruction under the FMLA.

      Here, the District Court denied Egan’s request for a
mixed-motive instruction, explaining that “there was no direct
evidence which was the qualifying ground for submitting” a
mixed-motive instruction to the jury. App. 509. As discussed
above, after Desert Palace, Egan was not required to produce




                               20
direct evidence to receive a mixed-motive instruction.4 Thus,
the District Court erred in requiring Egan to produce direct
evidence of retaliatory motive to obtain the mixed-motive
instruction. Rather, in response to the request for the
instruction, the Court should have determined whether there
was evidence from which a reasonable jury could conclude
that the Port Authority had legitimate and illegitimate reasons
for its employment decision and that Egan’s use of FMLA
leave was a negative factor in the employment decision. 5 We

       4
          While Defendants pointed to a few of our cases as
authority that direct evidence is required for mixed-motive
instructions in FMLA retaliation claims even after Desert
Palace, we have not held as much because that issue was
never outcome-determinative until this case. See Ross v.
Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (noting that the
plaintiff did “not argue that his retaliation claims are mixed-
motive claims”); Lichtenstein, 691 F.3d at 302 (holding that
whether the case could proceed under a mixed-motive
instruction was not relevant because the case could proceed
under “the more taxing McDonnell Douglas standard”);
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 136, 147
(3d Cir. 2004) (noting that the defendant did not contest that
the plaintiff supplied direct evidence).
        5
          The Port Authority argues that this error in the jury
instruction was harmless because the jury quickly returned a
verdict finding that Egan’s use of FMLA leave was not the
motivating factor for his termination. A jury instruction error
“is not harmless if it could have ‘reasonably . . . affected the
outcome of the trial’ or if the jury ‘quite possibly’ relied on
an erroneous instruction.’” Avaya Inc., RP v. Telecom Labs,
Inc., 838 F.3d 354, 396 (3d Cir. 2016) (quoting Hill v.
Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 411 (3d




                              21
will therefore vacate the FMLA judgment entered in favor of
the Port Authority and remand.

                               B

        We next examine Egan’s assertion that the District
Court abused its discretion by precluding Green’s testimony
pursuant to Federal Rule of Evidence 403. We review a
district court’s Rule 403 ruling for abuse of discretion, United
States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010), and
reverse only if the error was not harmless.

      “A district court has broad discretion to determine the
admissibility of relevant evidence in response to an objection
under Rule 403.” Id. (citation and internal quotation marks
omitted). Under Rule 403, “the court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. The Rule 403 inquiry is inexact,


Cir. 2006), and Hirst v. Inverness Hotel Corp., 544 F.3d 221,
228 (3d Cir. 2008)). Here, the difference between “but-for”
and "mixed-motive" instruction goes to the central issue
before jury: Why was Egan fired? There is no question that a
significant change relating to this critical issue could have
reasonably affected the outcome of the trial. See Gross v.
FBL Fin. Servs., Inc., 588 F.3d 614, 617 (8th Cir. 2009)
(holding that the improper use of a “mixed-motive”
instruction in a “but-for” case “shifted the burden of
persuasion on a central issue in the case,” and therefore “the
error cannot be harmless”).




                              22
“requiring sensitivity on the part of the trial court to the
subtleties of the particular situation, and considerable
deference on the part of the reviewing court to the hands-on
judgment of the trial judge.” Vosburgh, 602 F.3d at 537
(citation and internal quotation marks omitted). Thus, “[w]e
will not disturb the District Court’s ruling unless it was
arbitrary or irrational.” Id. (citation and internal quotation
marks omitted). If a trial court fails to articulate its balance
between the probative value and the prejudicial effect of
evidence, we either “decide the trial court implicitly
performed the required balance; or, if we decide the trial court
did not, we undertake to perform the balance ourself.” United
States v. Eufrasio, 935 F.2d 553, 572 (3d Cir. 1991).

        If we conclude it was error to exclude or admit a piece
of evidence, then we review the ruling to determine if the
exclusion or admission of the evidence was harmless. Under
the harmless error standard, the erroneous exclusion or
admission of evidence will not require reversal “if it is highly
probable that the error did not contribute to the judgment.”
United States v. Cross, 308 F.3d 308, 326 (3d Cir. 2002)
(citation and internal quotation marks omitted).

       Here, the District Court sustained the Port Authority’s
objection to Green’s testimony about a conversation between
Venuto and Egan that he overheard. The following occurred
during Green’s direct examination:

       Q. Did you ever hear Mr.—did you ever
       observe Mr. Egan and Mr. Venuto in Mr.
       Egan’s office?
       A. Yes.
       Q. And what did you observe?




                               23
Mr. Davis [Port Authority’s counsel]:
Objection, Your Honor.
The Court: Sustained.
...
Q. When you observed them in their office,
were you—were they having a conversation?
A. Yes.
Q. And were you able to hear the conversation?
A. Yes.
Q. Can you please describe the conversation
that Mr. Egan—
The Court: were you present in the room?
The Witness: No, Sir.
The Court:        But you could hear the
conversation?
A. Yes.
...
Q.     Where were you standing for this
conversation?
A. I was walking down a corridor towards Mr.
Egan’s office—actually, past Mr. Egan’s office,
and I heard the conversation that way.
Mr. Davis: Objection, Your Honor.
The Court: Did you continue walking?
The Witness: Yes.
The Court: You didn’t stop to listen?
The Witness: No.
The Court: So you were able to hear this as
you’re walking, the whole conversation?
The Witness: Not the whole conversation but a
great deal. They were pretty loud.
Mr. Davis: Objection, Your Honor.
The Court: Sustained.




                      24
       Mr. Salmanson [Egan’s counsel]: What’s the
       basis for the objection?
       The Court:        He didn’t hear the entire
       conversation.
       Mr. Salmanson: And could he relay the part of
       the conversation he did hear?
       The Court: No, because it would be incomplete
       and misleading.
       Mr. Salmanson: I have nothing further, Your
       Honor.

App. 170-72. The transcript shows that the District Court did
not explicitly conduct a balancing inquiry under Rule 403, but
it did identify one 403 consideration, that admission of only a
part of the conversation could be misleading. While we
strongly prefer that the District Court explain how it balanced
the Rule 403 considerations, we will perform the balancing
analysis ourselves to determine whether the District Court
abused its discretion. See Eufrasio, 935 F.2d at 572.

       First, we examine the probative value of the proposed
testimony. Green’s testimony, as shown in his deposition and
the District Court’s summary judgment order, was probative
of the Port Authority’s motivation in terminating Egan.
Green testified in his deposition that he heard Egan and
Venuto “having an exchange” when he was walking by
Egan’s office. App. 610. He explained that:

       [W]hat I could hear was Mr. Egan telling Mr.
       Venuto that he couldn’t commit to a certain task
       because of his underlying health issues. He
       wasn’t sure if he could commit to the deadline.
       And I overheard Mr. Venuto yelling, what can




                              25
      you do, Joe, what can you do. And at that time
      I turned around and went back to my office. I
      didn’t want to be involved in that exchange.

App. 610. He also stated that Venuto “seemed pretty
animated and pretty upset and angry.” App. 611. The
District Court noted the potential probative value of this
testimony in its order denying the Port Authority’s motion for
summary judgment, where it noted that “[r]emarks made by
Michael Venuto . . . may give rise to an inference of
discriminatory animus as to Egan’s age, disability, and
FMLA status” because “Green[ ] testified that Venuto voiced
concerns over Egan’s ability to complete assignments due to
his being out of work for health reasons.” App. 613-14.
Thus, even the District Court recognized that Green’s
testimony about the conversation he overheard was probative
of the Port Authority’s alleged discriminatory animus.

        Having concluded that the evidence has probative
value, we turn to the second part of the inquiry, namely
whether the value is substantially outweighed by
considerations in Rule 403 such as prejudice or misleading
the jury. Despite the testimony’s probative value, the District
Court did not abuse its discretion in precluding the testimony
at trial. By the time Green’s testimony was offered, the
District Court had heard Egan’s testimony. Egan did not
recount a conversation like the one Green said he partially
overheard. In addition, the District Court heard no testimony
from Venuto about such a conversation. Thus, the District
Court was presented with a situation where neither participant
in the conversation that Green partially overheard testified
about it. Given the great deference we pay to district courts’
Rule 403 rulings, even if we may have reached a different




                              26
ruling,6 we cannot say the Court here abused its discretion by
precluding Green’s testimony, and we will not disturb the
verdicts on any of the claims on this basis.7

                             IV

       For the foregoing reasons, we will affirm in part and
vacate and remand in part.




      6
          Arguably, the District Court could have properly
exercised its discretion and permitted the testimony given
that: (1) the parties could have cross-examined Green about
what he was able to hear; (2) participants in the conversation
testified and could have been questioned about it; and (3) the
jury could have given whatever weight it deemed warranted
to the testimony from a witness who heard only part of a
conversation. Cf. United States v. Mathis, 264 F.3d 321, 327-
28 (3d Cir. 2001) (finding no abuse of discretion for
admitting testimony when the court instructed the jury on the
permissible uses of that testimony and the testimony “was
properly challengeable, and was in fact challenged, by
vigorous cross-examination”).
        7
          Because our ruling is based upon the trial record
presented on this appeal, we render no opinion about the
admissibility of the testimony at a subsequent trial if the
evidence presented satisfies the District Court that its
probative value is not substantially outweighed by Rule 403
considerations.




                              27
JORDAN, Circuit Judge, concurring in the judgment.

       In our ruling today, we are required to defer to the
Department of Labor’s interpretation of the FMLA. While I
concur in the judgment, I write separately to note my
discomfort with our reasoning, which is dictated by the
regimes of deference adopted by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), and Auer v. Robbins, 519 U.S. 452
(1997). The doctrine of deference deserves another look.
Chevron and Auer and their like are, with all respect, contrary
to the roles assigned to the separate branches of government;
they embed perverse incentives in the operations of
government; they spread the spores of the ever-expanding
administrative state; they require us at times to lay aside
fairness and our own best judgment and instead bow to the
nation’s most powerful litigant, the government, for no reason
other than that it is the government. The problems they create
are serious and ought to be fixed.

        Our nation’s founders embraced the idea that freedom
is best secured by dividing governmental power into distinct,
structurally separate components. James Madison famously
wrote that “[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands … may justly be
pronounced the very definition of tyranny.” The Federalist
No. 47; see also Rebecca L. Brown, Separated Powers and
Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1538 (1991)
(noting that the constitutions of five states, including Virginia
and Massachusetts, expressly separated governmental power
in ways similar to the United States Constitution). The
Revolutionary generation had learned by hard experience
“that abandonment of separated powers led directly to the loss




                               1
of accountable, impartial government, which, in turn, led
inevitably to the loss of due process and individual rights.”
Brown, supra at 1538; see also Martin H. Redish & Elizabeth
J. Cisar, “If Angels Were to Govern”: The Need for
Pragmatic Formalism in Separation of Powers Theory, 41
Duke L.J. 449, 476 (1991) (observing that formal separation
of powers is a prophylactic measure intended to prevent one
branch’s accumulation and concentration of powers). Our
Constitution was thus framed specifically to avoid the
concentration of powers in the hands of a single branch of
government.        Chevron, however, has dramatically
undermined that purpose.

       Each branch of government was meant to act as a
check on the other so that power is not exercised without
accountability. See Perez v. Mortg. Bankers Ass’n, __ U.S.
__, 135 S. Ct. 1199, 1216 (2015) (Thomas, J., concurring)
(“To the Framers, the separation of powers and checks and
balances were more than just theories. They were practical
and real protections for individual liberty in the new
Constitution.”). The checking function of the courts is in our
power of judicial review, it being “emphatically the province
and duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
Yet, the Supreme Court has created a doctrine that requires
judges to ignore their own best judgment on how to construe
a statute, if the executive branch shows up in court with any
“reasonable interpretation made by the administrator of an
agency.” Chevron, 467 U.S. at 844.

       As though that were not bad enough, our hands are
also tied when an agency interprets or reinterprets its own
rules. Those fetters were put in place by Auer v. Robbins,




                              2
which extended judicial deference to an agency’s
interpretation of its rules, even in the midst of litigation. 519
U.S. at 462 (1997). The result today is that agencies are
entitled to deference for their interpretation of statutes and
then to a further dose of deference for their interpretation of
the rules and regulations they layer on top of those statutes.1
All the while, federal courts are pushed further and further
away from our constitutional responsibility to “say what the
law is.” 2 Marbury, 5 U.S. at 177; see also Decker v. Nw.

       1
         Agencies can also play a large role in the drafting and
vetting of legislation, even before it is enacted, so they will at
times have three bites at the law-making apple. See
Christopher J. Walker, Legislating in the Shadows, 165 U. Pa.
L.      Rev.      (forthcoming      2017),       available      at
https://ssrn.com/abstract=2826146 (presenting the results of
extensive interviews and surveys with twenty federal
agencies).
       2
         Several states have expressly rejected the Chevron
framework and their courts have refused to defer to state
agency interpretations of state law. See, e.g., Hughes Gen.
Contractors, Inc. v. Utah Labor Comm’n, 322 P.3d 712, 717-
18 (Utah 2014) (“openly repudiat[ing]” Chevron deference to
agencies and “retain[ing] for the courts the de novo
prerogative of interpreting the law, unencumbered by any
standard of agency deference”); In re Complaint of Rovas
Against SBC Mich., 754 N.W.2d 259, 272 (Mich. 2008)
(“[T]he unyielding deference to agency statutory construction
required by Chevron conflicts with … separation of powers
principles … by compelling delegation of the judiciary’s
constitutional authority to construe statutes to another branch
of government.”); Pub. Water Supply Co. v. DiPasquale, 735




                                3
Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia, J.,
concurring) (arguing that Auer deference “violate[s] a
fundamental principle of separation of powers—that the
power to write a law and the power to interpret it cannot rest
in the same hands”). Chevron and the cases that have
followed and expanded on it, including Auer, thus
“undermine[] our obligation to provide a judicial check on the
other branches, and … subject[] regulated parties to precisely
the abuses that the Framers sought to prevent.” Perez, 135 S.
Ct. at 1213 (Thomas, J., concurring).

        The deference required by Chevron not only erodes the
role of the judiciary, it also diminishes the role of Congress.
Under Chevron, “[s]tatutory ambiguity … becomes an
implicit delegation of rule-making authority, and that
authority is used not to find the best meaning of the text, but
to formulate legally binding rules to fill in gaps based on
policy judgments made by the agency rather than Congress.”
Michigan v. Envtl. Prot. Agency, __ U.S. __, 135 S. Ct. 2699,
2713 (2015) (Thomas, J., concurring). And we in the courts
have abetted that process, largely “abdicat[ing] our duty to
enforce [the] prohibition” against Congressional delegation of
legislative power to executive agencies. Dep’t of Transp. v.
Ass’n of Am. R.R., __ U.S. __, 135 S. Ct. 1225, 1246 (2015)
(Thomas J., concurring). The consequent aggrandizement of
federal executive power at the expense of the legislature leads
to perverse incentives, as Congress is encouraged to pass
vague laws and leave it to agencies to fill in the gaps, rather



A.2d 378, 382 (Del. 1999) (“Statutory interpretation is
ultimately the responsibility of the courts.”).




                              4
than undertaking the difficult work of reaching consensus on
divisive issues.3

        Auer deference further accentuates the shift of power
to the executive branch by encouraging agencies to
promulgate regulations vague enough to allow administrators
wide latitude in deciding how to govern. See Perez, 135 S.
Ct. at 1212 (Scalia, J., concurring) (critiquing Auer deference
because it encourages agencies to “write substantive rules
more broadly and vaguely, leaving plenty of gaps to be filled
in later, using interpretive rules unchecked by notice and
comment” rulemaking). And govern they do, not merely by
enforcing laws passed by the people’s representatives, but
through their own vast and largely unaccountable power. It
is, in fact, a growing power. Deference to agencies
strengthens the executive branch not only in a particular
dispute under judicial review; it tends to the permanent
expansion of the administrative state. Even if some in
Congress want to rein an agency in, doing so is very difficult

      3
          As well stated by Representative Bob Goodlatte,
Chairman of the House Committee on the Judiciary, Chevron
deference “tempts Congress to let the hardest work of
legislating bleed out of Congress and into the Executive
Branch, since Congress knows judges will defer to agency
interpretations of ambiguities and gaps in statutes Congress
did not truly finish.” The Chevron Doctrine: Constitutional
and Statutory Questions in Judicial Deference to Agencies:
Hearing before the H. Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the Committee on the
Judiciary, 114th Cong. (March 15, 2016) (Prepared Statement
of the Honorable Bob Goodlatte).




                              5
because of judicial deference to agency action. Moreover, the
Constitutional requirements of bicameralism and presentment
(along with the President’s veto power), which were intended
as a brake on the federal government, being “designed to
protect the liberties of the people,” are instead, because of
Chevron, “veto gates” that make any legislative effort to
curtail agency overreach a daunting task. Randy R. Barnett,
Our Republican Constitution: Securing the Liberty and
Sovereignty of We the People, 212 (2016).

        In short, Chevron “permit[s] executive bureaucracies
to swallow huge amounts of core judicial and legislative
power and concentrate federal power in a way that seems
more than a little difficult to square with the Constitution of
the [F]ramers’ design.” Gutierrez-Brizuela v. Lynch, 834
F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).
That deterioration in the separation of powers is not merely a
matter of abstract concern over political theory. The point of
structural separation is, again, the protection of individual
liberty. See NLRB v. Noel Canning, __ U.S. __, 134 S. Ct.
2550, 2559 (2014) (“We recognize, of course, that the
separation of powers can serve to safeguard individual
liberty[.]”). “The doctrine of the separation of powers was
adopted by the Convention of 1787 not to promote efficiency
but to preclude the exercise of arbitrary power.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952)
(Douglas, J., concurring) (quoting Myers v. United States, 272
U.S. 52, 293 (1926) (Brandeis, J., dissenting)).

       When the power to create and interpret and enforce the
law is vested in a single branch of government, the risk of
arbitrary conduct is high and individual liberty is in jeopardy.
An agency can change its statutory interpretation with




                               6
minimal justification and still be entitled to full deference
from Article III courts. See Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)
(“Agency inconsistency is not a basis for declining to analyze
the agency’s interpretation under the Chevron framework.”).
Citizens are therefore left to the mercy of government
functionaries who are free “to bend existing laws, to
reinterpret and apply them retroactively in novel ways and
without advance notice.” Gutierrez-Brizuela, 834 F.3d at
1149 (Gorsuch, J., concurring). We would never allow a
private litigant the power to authoritatively reinterpret the
rules applicable to a dispute, yet we routinely allow the
nation’s most prolific and powerful litigant, the government,
to do exactly that.4 Agencies can make the ground rules and
change them in the middle of the game.5

      4
         The authority that agencies have to create binding
law and reinterpret it at will may be heard as an echo of the
royal prerogative to issue proclamations and interpret laws, a
power claimed by British monarchs and widely rejected by
Parliament and common law judges during the latter half of
the 17th century. See Philip Hamburger, Is Administrative
Law Unlawful?, 33-63 (2014).
      5
          The Supreme Court has declared that deference is
inappropriate when an agency’s reinterpretation of its
regulation is “nothing more than a ‘convenient litigating
position’ … a ‘post hoc rationalizatio[n]’ advanced by an
agency seeking to defend past agency action against attack,”
or would result in “unfair surprise.”         Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 132 S. Ct. 2156,
2167-68 (2012) (citations omitted) (second alteration in
original). In practice, however, deference is granted even to




                              7
       I am not arguing that there is no role in our system of
government for deference to administrative agencies. They
unquestionably have institutional expertise that allows them
to understand some provisions of law “based upon more
specialized experience and broader investigations and
information than is likely to come to a judge in a particular
case.” Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).
Such expertise may give agencies and the courts assistance
when confronting technical issues. So, for instance, the
Federal Energy Regulatory Commission is well qualified to
determine what is the “just and reasonable” rate that utilities
should pay when purchasing energy from other energy-
producing facilities. Am. Paper Inst., Inc. v. Am. Elec. Power
Serv. Corp., 461 U.S. 402, 415 (1983). Likewise, the
Treasury Department is in a good position to say whether
certain revenue qualifies as “reserve strengthening.” Atl. Mut.
Ins. Co. v. C.I.R., 523 U.S. 382, 389-91 (1998). And the
Department of Energy can helpfully suggest whether “oil
produced from tar sands” includes oil produced using
enhanced extraction techniques.       Shell Petroleum, Inc. v.


an agency’s poorly reasoned post-hoc rationalizations. See
Columbia Gas Transmission, LLC v. 1.01 Acres, More or
Less in Penn Twp., York Cty., Pa., Located on Tax ID
#440002800150000000 Owned by Brown, 768 F.3d 300, 316
(3d Cir. 2014) (Jordan J., dissenting) (critiquing the majority
opinion for accepting an agency’s regulatory interpretation
that the agency itself had once acknowledged was “at odds
with … the common understanding” of the terms of the
regulation and that was adopted in a footnote “in the middle
of an unrelated rulemaking” as a “reaction to the District
Court’s decision in [that] case”).




                              8
United States, 182 F.3d 212, 217 (3d Cir. 1999). But
Supreme Court precedent before Chevron already granted the
“rulings, interpretations and opinions” of agencies a level of
deference consistent with “the thoroughness evident in [the
particular decision under] consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade.” Skidmore, 323 U.S. at 140. That level of
deference appropriately takes into account an agency’s
specialized knowledge while retaining for the judiciary the
prerogative “to say what the law is.” Marbury, 5 U.S. at 177.

        Highly specialized or technical matters are far
different, however, than the legal matters on which federal
courts are now routinely told, in the name of Chevron, to bow
down and obey the executive branch. The facts of this case
illustrate the problem. The Department of Labor is entitled to
tell us where, in a vaguely worded portion of the Family and
Medical Leave Act (FMLA), we are to look for a prohibition
on retaliation against employees who take FMLA leave.
Consequently, even though we determined years ago that
retaliation claims arise under 29 U.S.C. § 2615(a)(2),
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146
n.9 (3d Cir. 2004), we must now defer to the Department of
Labor’s final rule concluding otherwise.6         Then, after

      6
          Even the Department of Labor recognized that
“section 2615(a)(2) of the Act also may be read to bar
retaliation[.]” Dep’t of Labor Rules and Regulations for the
Family Medical Leave Act of 1993, 73 Fed. Reg. 67934-01
(Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825). But,
because the Department “believe[d] that section 2615(a)(1)
provides a clearer statutory basis for § 825.220(c)’s




                              9
deferring to the Department’s decision about which provision
of the statute we are supposed to interpret, we must again
defer to the Department when it delineates the rules of proof
regarding such a claim and the kind of jury instruction that
must be given.7 So much for the job of the judicial branch.

       Were we free to actually interpret the law rather than
merely defer to an executive agency, we might well conclude
that the FMLA does not allow for a mixed-motive instruction
for Egan’s retaliation claim. “Causation in fact – i.e., proof
that the defendant’s conduct did in fact cause the plaintiff’s
injury – is a standard requirement of any tort claim.” Univ. of
Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517,
2524 (2013). Therefore, “[a]bsent some reason to believe that
Congress intended otherwise,” Gross v. FBL Fin. Servs. Inc.,
557 U.S. 167, 177 (2009), an employee must prove that a
“prohibited criterion was the but-for cause of [an employer’s]
prohibited conduct.” Nassar, 133 S. Ct. at 2523. While the
terms of the FMLA do not expressly foreclose a mixed-
motive instruction, cf. Gross, 557 U.S. at 176 (emphasizing
that the prohibition in the ADEA against discrimination
“because of” an impermissible consideration was
synonymous with a requirement of “but for” causation and
foreclosed a mixed-motive instruction), neither do they
mandate or even encourage such an instruction, cf. Nassar,


prohibition of discrimination and retaliation[,]” we are
obligated to defer to that belief and limit our examination to
§ 2615(a)(1).
      7
          The differences between “mixed motive” and
“pretext” employment discrimination cases are ably described
in the majority opinion. (Maj. Op. at 7 n.1.)




                              10
133 S. Ct. at 2534 (emphasizing that the prohibition in Title
VII against retaliation when an impermissible characteristic
was a “motivating factor” clearly permitted a mixed- motive
instruction). Therefore, the default standard of “but for”
causation seems to be applicable and a mixed-motive
instruction would seem out of order.8 Nevertheless, because
the Department of Labor has interpreted the statute


       8
          Neither Section 2615(a)(1) nor (a)(2) contains
causation language akin to either the “because of” language
of the ADEA or the “motivating factor” language of Title VII.
29 U.S.C. §§ 2615(a)(1)-(2). Section 2615(a)(2) prohibits
discrimination against an individual “for opposing any
practice made unlawful by this subchapter.”               Id. at
§ 2615(a)(2). A subsequent section, 2615(b), prohibits
discharging someone “because such [an] individual” filed
charges, gave information in an inquiry, or testified in a
proceeding related to the rights protected by the FMLA –
language closer to that found in the ADEA. Id. at § 2615(b).
The best reading of Section 2615(a)(2) might thus involve
reading the “for opposing” language in harmony with the
“because” language from the subsequent section to conclude
that “but for” causation is required. See Food & Drug Admin.
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 121
(2000) (noting that courts “must place [statutory] provision[s]
in context, interpreting the statute to create a symmetrical and
coherent regulatory scheme”). Regardless, there is no
language akin to “motivating factor” indicating that
something less than “but for” causation is in order and so the
default rule laid out in Gross and Nassar indicates that a
mixed-motive instruction is not warranted.




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differently, we are obliged to fall in line and adopt a standard
for FMLA claims that Congress has never embraced.

       The consequences of this particular distortion of
government functioning are foreseeable. As the Supreme
Court noted in Nassar, “claims of retaliation are being made
with ever-increasing frequency” and “lessening the causation
standard could … contribute to the filing of frivolous claims,
which would siphon resources from efforts by employer[s],
administrative agencies, and courts to combat workplace
harassment.” 133 S. Ct. at 2531-32. Allowing claims to go
forward on the terms dictated by the Department of Labor is a
shift in public policy that should be debated and crafted
within the legislative branch rather than being announced by
unelected officials in an administrative agency. Yet, based on
the judgment of someone inside the Department tasked with
enforcing the FMLA, and despite the District Court’s effort to
say what the law is, employers will now face a lower
threshold of liability than they would have under the default
causation standard. It is worth pondering how we arrived at
this point.9 The trajectory is more important than the result in
this particular case.

       9
         Some elected officials are taking note. Recently,
Congress considered restoring full judicial review of agency
action. On January 12, 2017, the House of Representatives
passed The Regulatory Accountability Act of 2017, which, if
passed by the Senate and signed into law, would prevent
courts from deferring to certain agency determinations and
instead require review of those determinations for “abuse of
agency discretion.” H.R. 5, 115th Cong. § 107(c)-(d) (2017)
(proposing amendments to 5 U.S.C. § 706).




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