16-1318-cv
Woods v. START Treatment & Recovery Ctrs.


                             In the
                 United States Court of Appeals
                    For the Second Circuit

                               August Term, 2016

                           Argued: February 23, 2017
                             Decided: July 19, 2017

                              Docket No. 16-1318-cv


                               CASSANDRA WOODS,

                                               Plaintiff-Appellant,

                                   TINA HINTON,

                                               Plaintiff,

                                        –v.–

                START TREATMENT & RECOVERY CENTERS, INC.,

                                               Defendant-Appellee,

             ADDICTION RESEARCH AND TREATMENT CORPORATION,

                                               Defendant.


                 Appeal from the United States District Court
                    for the Eastern District of New York
                  No. 13-cv-4719 – Ann M. Donnelly, Judge.



Before:
       KEARSE, HALL, and CHIN, Circuit Judges.
       Plaintiff Cassandra Woods lost a jury trial on claims that she was fired
for exercising her rights under the Family and Medical Leave Act. Her appeal
presents two principal questions. First, what is the appropriate causation
standard for FMLA retaliation claims? Second, was Woods unduly prejudiced
by the admission of adverse inferences based on her invocation of the Fifth
Amendment at her deposition?

       The district court (Ann M. Donnelly, Judge) instructed the jury that it
must apply “but for” causation to Woods’s claims and that it was permitted to
infer that Woods would have answered “yes” to the relevant questions at her
deposition. We hold that FMLA retaliation claims of the sort Woods brings in
this case require a “motivating factor” causation standard and that Woods
was unduly prejudiced by the admission of adverse inferences.

      VACATED AND REMANDED.


                                  ABDUL K. HASSAN, Queens Village, New
                                  York, for Plaintiff-Appellant.

                                  DAVID M. POHL, New York, New York, for De-
                                  fendant-Appellee.

                                  RACHEL GOLDBERG, Senior Attorney (M. Pa-
                                  tricia Smith, Solicitor of Labor, Jennifer S.
                                  Brand, Associate Solicitor, William C. Less-
                                  er, Deputy Associate Solicitor, Paul L.
                                  Frieden, Counsel for Appellate Litigation, on
                                  the brief), for R. Alexander Acosta, United
                                  States Secretary of Labor, Washington, D.C.,
                                  as amicus curiae in support of Plaintiff-
                                  Appellant.


HALL, Circuit Judge:

      If a jury finds against Woods, but it was wrongly instructed on the law,

can its verdict still stand? In this case, our answer is no.

      Plaintiff-Appellant Cassandra Woods appeals a final judgment of the

United States District Court for the Eastern District of New York (Ann M.

                                        2
Donnelly, Judge) following a jury trial in which Woods lost on all of her

claims under the Family and Medical Leave Act (“FMLA”). Woods was fired

from her job at START Treatment and Recovery Centers (“START”) in 2012.

She says that she was terminated in retaliation for taking leave under the

FMLA; START says it was because of her poor performance. The jury appears

to have agreed with START.

      Woods lodges two main arguments on appeal. First, she contends that

the district court wrongly instructed the jury that “but for” causation applies

to FMLA retaliation claims. Second, Woods argues that she suffered imper-

missible prejudice when the district court allowed the jury to draw adverse

inferences based on her invocation of the Fifth Amendment at her deposition.

We agree on both counts. Accordingly, the judgment of the district court is

vacated, and the case is remanded for further proceedings not inconsistent

with this opinion.

                                       I

      Because Woods appeals a jury verdict in favor of START, we view the

facts in the light most favorable to START. See Kosmynka v. Polaris Indus.,

Inc., 462 F.3d 74, 77 (2d Cir. 2006); see also Jacques v. DiMarzio, Inc., 386

F.3d 192, 195 (2d Cir. 2004) (applying this standard even where the district

court provided improper jury instruction).

      START is a nonprofit that operates eight clinics providing treatment

services to about 3,000 narcotic-addicted patients each day. Cassandra Woods



                                      3
began work as a substance abuse counselor at START’s “Kaleidoscope” Clinic

in 2007, and her tenure ended on May 18, 2012. The reason for her departure

is the subject of this suit.

       In her role as a substance abuse counselor, Woods was responsible for

counseling around fifty patients, usually in thirty-minute sessions. After each

such session, START counselors spend fifteen minutes or so writing a patient

“note,” which is important for START both to maintain its state certification

and to bill Medicaid and other insurance companies. In 2011, START imple-

mented a new, state-mandated note system known as “APG.” APG is more

complex than the prior note-keeping method, and many counselors struggled

to adapt; fifteen percent of counselors were terminated for failing to comply

with APG requirements.

       Woods also struggled with APG. Although her July 2010 and July 2011

performance reviews were generally satisfactory, START’s assessment of her

took a turn for the worse in March 2011. START determined that Woods was

failing to achieve “required outcomes” in “compliance” and “documentation.”

J. App’x 874. START offered Woods “enhanced training.” Id.

       Enhanced training, however, did not seem to do the trick. Woods re-

ceived warning memos documenting performance issues in April and June

2011. In August 2011, Woods appeared to right the ship, and she received a

pay raise for her efforts, but thereafter her performance again began to slip.

She received three more warning memos in November 2011, December 2011,



                                      4
and February 2012. The February 2012 memo recorded that Woods had a

twenty-eight percent completion rate for her notes. The typical completion

rate among other counselors was ninety to ninety-five percent. By March

2012, Woods was put on ninety-day probation for “her on-going failure to per-

form [her] job duties as directed and/or within designated time frames de-

spite verbal and/or written warnings.” J. App’x 879–80.

      Probation did not appear to have remedied Woods’s performance issues

either. Her deadline for catching up on a backlog of patient notes was extend-

ed by memo twice—on April 4, 2012 and April 18, 2012. On May 10, 2012,

Rodney Julian, Clinical Director at the Kaleidoscope Clinic and Woods’s di-

rect supervisor, recommended terminating Woods to Dr. Robert Sage, the

Senior Vice President for the Division of Human Services. Dr. Sage fired

Woods on May 17, 2012, citing Woods’s failure to maintain up-to-date patient

notes and “on-going failure to perform [her] job duties.” J. App’x 889.

      Woods tells a different story about the reason for her termination. She

suffers from severe anemia and other conditions and on several occasions re-

quested medical leave under the FMLA. The exercise of her FMLA rights, in

Woods’s view, is why START fired her. Woods’s account begins in February

2011, when she approached Madeleine Miller, an employee in START’s hu-

man resources department, and requested FMLA leave. Shortly thereafter,

Woods cancelled the request. Woods says that she did so because Rodney Jul-

ian asked her to; Julian denies that such a conversation ever took place.



                                       5
      In August 2011, Woods was hospitalized for six days while being treat-

ed for her anemia. Although START does not appear to have given Woods a

full explication of her FMLA rights, it did acknowledge that the hospitaliza-

tion period was protected. Some months later, while Woods was on probation,

she again attempted to take FMLA leave. According to Woods’s version of the

encounter, she was told that because she was on probation, she could not take

FMLA leave. Renee Sumpter, the human resources contact to whom Woods

made the request, says that she told Woods no such thing. The next day,

Woods visited her doctor but declined hospitalization because she was afraid

of losing her job. START did nothing at that time.

      In April 2012, still while Woods was on probation, she was hospitalized

for another seven days. START acknowledges that this time too was protect-

ed under the FMLA. Woods returned to work on April 28, 2012. Twelve days

later, Julian recommended firing Woods, and she was terminated a week lat-

er.

      Woods sued, bringing claims for, inter alia, interference and retaliation

under the FMLA. In discovery, Woods sat for a deposition. She was asked

about a prior incident in which she was accused of some wrongdoing. In rele-

vant part, Woods was asked a series of questions about whether she had been

accused of criminal conduct, of lying, of fabrication, and of fraud. See J. App’x

53–54. Woods invoked her Fifth Amendment right against self-incrimination

in response to each of questions.



                                       6
      After the close of discovery, the district court ruled on a number of pre-

trial matters. START filed a motion in limine seeking an adverse inference

instruction based on Woods’s invocation of the Fifth Amendment in response

to several questions asked during her deposition. Woods opposed the motion,

arguing that the deposition questions were hearsay, not reflective of credibil-

ity, and inadmissible under the Federal Rules of Evidence. The district court

granted START’s motion, ruling that the jurors would be permitted to pre-

sume that Woods would have answered the deposition questions in the af-

firmative. The district court noted that Woods had preserved her objections.

J. App’x 89.

      The district court also resolved START’s motion for a ruling on wheth-

er Woods was required to show that the exercise of her FMLA rights was the

“but for” cause of her termination in order to prevail on the retaliation claim.

See Woods v. START Treatment & Recovery Ctrs., Inc., No. 13-cv-4719, 2016

WL 590458 (E.D.N.Y. Feb. 11, 2016). After analyzing the FMLA’s text and

Supreme Court precedent, the district court concluded that Woods did indeed

need to demonstrate that her FMLA leave was the “but for” cause of her ter-

mination, rather than a mere “motivating factor” in the decision, as Woods

had argued. Id. at *2 (emphases omitted). The parties were instructed to

submit proposed jury instructions that comported with the district court’s

rulings.




                                       7
       At trial, START put on evidence of Woods invoking the Fifth Amend-

ment. During Woods’s cross-examination, defense counsel reviewed the depo-

sition transcript with Woods, reading each of the pertinent questions and

Woods’s responses. See J. App’x 333–38.1 Woods confirmed the accuracy of

the deposition transcript and acknowledged that she had asserted the Fifth

Amendment in response to the questions. Based on that evidence, the district

court gave the following instruction to the jury at the close of evidence:

               The plaintiff invoked her Fifth Amendment right
               against self-incrimination, which she was permit-
               ted to do in this case. However, from the plaintiff’s
               invocation of the Fifth Amendment, you may draw
               certain conclusions but are not required to do so.
               Specifically, you may infer that the plaintiff’s an-
               swers at her deposition, if she had not refused to
               answer, would have been “yes” to the questions
               asked, if she had not invoked the Fifth Amend-
               ment. You may, but are not required to, draw these
               inferences against the plaintiff when you are eval-
               uating her credibility, and you can give these infer-
               ences whatever weight that you wish or, if you
               choose to give it no weight, you can do that.

J. App’x 642–43.

       The district court also instructed the jury on the ultimate questions be-

fore it. One of those questions was whether START retaliated against Woods




1 For example, defense counsel asked Woods: “do you have knowledge of a City of New York
investigation concerning you that was being conducted in or about October of 2011?” J. App’x
334. Woods invoked the Fifth Amendment. About that same investigation, defense counsel
asked more questions, such as: “In that case were you accused of some kind of immoral con-
duct?” Id. at 335. “[W]ere you accused of lying.” Id. “[W]ere you accused of fabricating
events?” Id. at 336. “[W]ere you accused of submitted false documentation?” Id. “[W]ere you
accused of misrepresenting facts to the government?” Id. at 337. “[W]ere you accused of
fraud.” Id. To all these questions, Woods invoked the Fifth Amendment.

                                             8
for exercising her rights under the FMLA. On the retaliation issue, the dis-

trict court gave the following instruction:

             To succeed on her claim of retaliation, the plaintiff
             must prove by a preponderance of the evidence that
             the defendant terminated her for taking FMLA
             leave. For you to determine that the plaintiff was
             terminated for taking FMLA leave, she must prove
             that the defendant would not have terminated her
             if she had not taken FMLA leave, but everything
             else had been the same.

             The defendant has given nondiscriminatory reasons
             for its decision to terminate the plaintiff. The
             FMLA does not protect an employee from perfor-
             mance problems caused by the conditions for which
             the FMLA leave is taken. Under the FMLA, a per-
             son can be fired for poor performance, even if that
             poor performance is due to the same root cause as
             the need for the leave. To put that another way, if
             an employee’s work performance problems are re-
             lated to the same elements that gave rise to the
             FMLA leave, then the employee can still be termi-
             nated based on her work performance problems re-
             gardless of the indirect causal link between the
             FMLA leave and the decision to terminate the em-
             ployee.

             If the plaintiff has proved by a preponderance of
             the evidence that the defendant’s explanations for
             the termination are a pretext or an excuse for dis-
             crimination, you must find that the defendant vio-
             lated the FMLA.

J. App’x 652–53.

      After all of the evidence was submitted and the district court instruct-

ed the jury on the applicable law, the jury deliberated for a short time and

returned a complete defense verdict. Woods timely appealed.




                                        9
                                       II

       Woods first challenges the district court’s jury instruction on the ap-

propriate causation standard to be applied to her FMLA retaliation claims,

that is, how the jury was to assess the role, if any, that Woods’s exercise of

FMLA rights played in START’s decision to fire her. As it did below, START

argues that Woods must prove that her exercise of FMLA rights was the “but

for” cause of her termination. Woods counters that she must only show that

her FMLA leave was used as a “negative factor” in START’s decision to fire

her.

       “We review a claim of error in the district court’s jury instructions de

novo, disturbing the district court’s judgment only if the appellant shows that

the error was prejudicial in light of the charge as a whole.” Sheng v.

M&TBank Corp., 848 F.3d 78, 86 (2d Cir. 2017) (quoting Turley v. IFG

Lackawanna, Inc., 774 F.3d 140, 152–53 (2d Cir. 2014)). Jury instructions

that mislead the jury as to the correct legal standard are erroneous, but we

will not require a new trial unless the instructions, read as a whole, fail to

“present[] the issues to the jury in a fair and evenhanded manner.” Id. (quot-

ing Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012)).

       The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., provides

broad protections to employees who need to take time away from work to deal

with serious health conditions of the employee or her family. An employee

has the right to return to the position she held before taking leave, or to an



                                       10
“equivalent position with equivalent employment benefits, pay, and other

terms and conditions of employment.” Id. § 2614(a)(1)(B). The FMLA also

“creates a private right of action to seek both equitable relief and money

damages against any employer (including a public agency) in any Federal or

State court of competent jurisdiction should that employer interfere with, re-

strain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc.,

445 F.3d 161, 174 (2d Cir. 2006) (internal quotation marks omitted).

      FMLA claims come in at least two varieties: interference and retalia-

tion. See Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004) (per

curiam). In a general sense, an employee brings an “interference” claim when

her employer has prevented or otherwise impeded the employee’s ability to

exercise rights under the FMLA. See Graziadio v. Culinary Inst. of Am., 817

F.3d 415, 424 (2d Cir. 2016). “Retaliation” claims, on the other hand, involve

an employee actually exercising her rights or opposing perceived unlawful

conduct under the FMLA and then being subjected to some adverse employ-

ment action by the employer. See Potenza, 365 F.3d at 168. The two types of

claims serve as ex ante and ex post protections for employees who seek to

avail themselves of rights granted by the FMLA.

      The first issue in this case presents two distinct, but related, legal

questions that have yet to be resolved in this Circuit. First, in which provi-

sion of the FMLA are retaliation claims rooted? Second, what quantum of

causation must a plaintiff prove between the exercise of FMLA rights and the



                                     11
adverse employment action to hold an employer liable for retaliation? Our

answer to the first question informs our answer to the second. We hold that

FMLA retaliation claims of the sort Woods brings in this case are grounded in

29 U.S.C. § 2615(a)(1) and a “motivating factor” causation standard applies to

those claims.

                                        A

      There is little question that given its broad salutary intent, the FMLA

prohibits retaliation against employees who attempt to exercise their rights

under the statute. Which statutory provision creates that protection against

retaliation, however, is a subject of some dispute in the circuits.

      Two possible statutory sources could support FMLA retaliation claims.

The first contender is 29 U.S.C. § 2615(a)(1), which provides:

                It shall be unlawful for any employer to interfere
                with, restrain, or deny the exercise of or the at-
                tempt to exercise, any right provided under this
                subchapter.

Second is the following provision, § 2615(a)(2), which provides:

                It shall be unlawful for any employer to discharge
                or in any other manner discriminate against any
                individual for opposing any practice made unlawful
                by this subchapter.

      The First Circuit finds a basis for FMLA retaliation claims in

§ 2615(a)(1). See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4 (1st

Cir. 1998) (concluding that retaliation for exercising FMLA rights “can be

read into § 2615(a)(1): to discriminate against an employee for exercising his



                                       12
rights under the Act would constitute an ‘interfer[ence] with’ and a ‘re-

strain[t]’ of his exercise of those rights”); see also Colburn v. Parker Han-

nifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005) (“The term ‘in-

terference’ may, depending on the facts, cover both retaliation claims . . . and

non-retaliation claims . . . .”) (internal citation omitted). The Sixth Circuit as-

sumes that § 2615(a)(2) provides the source for retaliation claims. See Bryant

v. Dollar Gen. Corp., 538 F.3d 394, 400–02 (6th Cir. 2008). Other circuits

point to a Department of Labor regulation, see Lichtenstein v. Univ. of Pitts-

burgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) (citing 29 C.F.R.

825.220(c)), and yet others look to a combination of all three, see Richardson

v. Monitronics Int’l, Inc., 434 F.3d 327, 332, 334 (5th Cir. 2005).

      We have in the past suggested that retaliation claims fall under

§ 2615(a)(2). See Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir.

2011). In Millea we observed that:

             The FMLA’s anti-retaliation provision has the
             same underlying purpose as Title VII—and almost
             identical wording. Compare 29 U.S.C. § 2615(a)(2) .
             . . with 42 U.S.C. § 2000e-3(a).

Id. The underlying question in Millea, however, was unrelated to the statuto-

ry source of FMLA retaliation claims. Instead, we decided there that the

standard for “materially adverse action” under Title VII (first announced in

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006))

applies to FMLA claims. See 658 F.3d at 164. Because the core question did

not involve making a specific determination concerning the well from which

                                        13
FMLA retaliation claims spring, we do not read Millea’s passing reference to

§ 2615(a)(2) as controlling.

      We now hold that FMLA retaliation claims like Woods’s, i.e. termina-

tions for exercising FMLA rights by, for example, taking legitimate FMLA

leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1)

supports this conclusion. Firing an employee for having exercised her rights

under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those

rights. Indeed, FMLA rights have two parts—the right to take leave and the

right to reinstatement, so terminating an employee who has taken leave is

itself an outright denial of FMLA rights.

      That this sort of retaliation claim falls under § 2615(a)(1) is also con-

sistent with the statutory text of § 2615(a)(2). Section 2615(a)(2) prohibits

adverse employment actions—“discharg[ing] or in any other manner discrim-

inat[ing]”—against employees “for opposing any practice made unlawful by

this subchapter.” Being fired for taking FMLA leave cannot easily be de-

scribed as “opposing any practice made unlawful” by the FMLA. Instead, that

adverse employment action in the face of a lawful exercise of FMLA rights

fits comfortably within § 2615(a)(1)’s “interfere with, restrain, or deny” lan-

guage.

      Labor Department rules also support this interpretation of the statute.

The Department revised its rule at 29 C.F.R. 825.220(c) “to clarify that the

prohibition against interference includes a prohibition against retaliation as



                                      14
well as a prohibition against discrimination.” The Family and Medical Leave

Act of 1993, 73 Fed. Reg. at 67,934, 67,986 (Nov. 17, 2008). The Labor De-

partment further explained 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 of

discrimination and retaliation” for exercising FMLA rights. Id. We agree.

                                      B

      Woods’s FMLA retaliation claim being actionable under § 2615(a)(1),

the question becomes whether the district court correctly instructed the jury

that it must apply a “but for” causation standard in determining whether

START was liable for such retaliation. We conclude that the given instruction

was erroneous.

      In determining that a “but for” causation standard applied, the district

court conducted a thorough analysis of the statutory language in § 2615(a)(2).

Woods v. START Treatment & Recovery Ctrs., Inc., No. 13-cv-4719, 2016 WL

590458, at *2–3 (E.D.N.Y. Feb. 11, 2016). Specifically, the district court con-

cluded that § 2615(a)(2) contained language indicating Congress’s intent to

create such a standard, especially in light of the Supreme Court’s analogous

analyses in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) and

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). We need not decide

whether the district court correctly determined the causation standard for




                                      15
claims under § 2615(a)(2), however, because, as we explained above, retalia-

tion claims like Woods’s are instead rooted in § 2615(a)(1).

      START’s argument on the appropriate causation standard largely

tracks the district court’s analysis. It contends that the FMLA lacks “motivat-

ing factor” language and thus, under Nassar, the default “but for” causation

standard applies. Woods, and the Department of Labor as amicus, on the

other hand, urge us to give Chevron deference to the Department’s regulation

at 29 C.F.R. 825.220(c), which they say compels a lesser causation standard.

That regulation provides:

             The 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. For example, if an employee on leave with-
             out pay would otherwise be entitled to full benefits
             (other than health benefits), the same benefits
             would be required to be provided to an employee on
             unpaid FMLA leave. By the same token, employers
             cannot use the taking of FMLA leave as a negative
             factor in employment actions, such as hiring, pro-
             motions or disciplinary actions; nor can FMLA
             leave be counted under no fault attendance policies.

29 C.F.R. 825.220(c) (emphasis added).

      Chevron deference is appropriate where Congress has delegated au-

thority to an administrative agency to make rules carrying the force of law

and that agency’s interpretation to which deference is to be given was prom-

ulgated in the exercise of that authority. Here, Congress delegated to the Sec-

retary of Labor authority to “prescribe such regulations as are necessary to



                                      16
carry out” the FMLA. 29 U.S.C. § 2654. The 825.220(c) regulation was prom-

ulgated pursuant to that delegation of authority.

      The first step of the Chevron analysis is determining whether the stat-

ute is ambiguous or silent on the specific question at issue. See Chevron

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). Sec-

tion 2615(a)(1) is silent as to any test for causation. It makes no mention of a

motivating factor test, and unlike the statutes in Nassar and Gross, it lacks

any indicia of Congress’s intent to create “but for” causation—words like “be-

cause” or “by reason of.” While the Supreme Court has said that Congress

must indicate when it intends to depart from the default tort rule of “but for”

causation, see Nassar, 133 S. Ct. at 2525, Congress has chosen to remain si-

lent on the causation issue in § 2615(a)(1) and has instead delegated a statu-

tory gap-filling function to the Secretary of Labor. Indeed, “express congres-

sional authorizations to engage in the process of rulemaking” is “a very good

indicator of delegation meriting Chevron treatment.” United States v. Mead

Corp., 533 U.S. 218, 229 (2001). We thus proceed to Chevron step two.

      At step two, we ask whether the Labor Department’s interpretation of

the statute is reasonable—both as a matter of statutory construction and as a

matter of policy. See Chevron, 467 U.S. at 843–44. It is as to both.

      As for statutory interpretation, so long as the Labor Department’s in-

terpretation is reasonable, we defer to it “whether or not it is the only possi-

ble interpretation or even the one a court might think best.” Holder v. Mar-



                                       17
tinez Gutierrez, 132 S. Ct. 2011, 2017 (2012); see Mugalli v. Ashcroft, 258 F.3d

52, 55 (2d Cir. 2001) (“[I]t is not necessary that we conclude that the agency’s

interpretation of the statute is the only permissible interpretation, nor that

we believe it to be the best interpretation . . . .”) (quoting Michel v. INS, 206

F.3d 253, 263 (2d Cir. 2010)). Given the sweeping scope of § 2615(a)(1)’s pro-

hibition—“It shall be unlawful . . . to interfere with, restrain, or deny the ex-

ercise of or the attempt to exercise, any right”—and the absence of any indi-

cation of a causation standard, the Labor Department reasonably construed

§ 2615(a)(1) to prohibit using the exercise of FMLA rights at all in making

employment decisions.

      The Labor Department’s interpretation is reasonable as a matter of

policy. The rule was promulgated after notice-and-comment rulemaking, and

it comports with the FMLA’s broad salutary purposes—namely, “to balance

the demands of the workplace with the needs of families, to promote the sta-

bility and economic security of families, and to promote national interests in

preserving family integrity; [and] . . . to entitle employees to take reasonable

leave for medical reasons, for the birth or adoption of a child, and for the care

of a child, spouse, or parent who has a serious health condition.” 29 U.S.C.

§ 2601(b)(1)–(2). The rule is neither arbitrary nor capricious. Instead, it re-

flects the well-reasoned judgment of the executive officer charged with enforc-

ing the rights granted to this country’s employees.




                                       18
         Accordingly, we defer to the Labor Department’s regulation imple-

menting a “negative factor” causation standard for FMLA retaliation claims.

The district court erred by instructing the jury otherwise.

                                       C

         An erroneous jury instruction, however, does not necessarily entitle

Woods to a new trial. “A jury verdict will be reversed only when an appellant

can show that the instructions considered as a whole prejudiced [her].” Hol-

zapfel v. Town of Newburgh, 145 F.3d 516, 521 (2d Cir. 1998). “[T]he party

asserting error has the burden of demonstrating prejudice . . . .” Renz v. Grey

Advert., 135 F.3d 217, 223 (2d Cir. 1997) (internal quotation marks omitted).

“An error is harmless only if the court is convinced that [it] did not influence

the jury’s verdict.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.

2000).

         In Renz, we held that the district court’s erroneous failure to give a

motivating factor instruction—and instead requiring but for causation under

the Age Discrimination in Employment Act (“ADEA”)—“did not prejudice the

plaintiff.” 135 F.3d at 223. We did so there because the evidence of the plain-

tiff’s poor performance was so overwhelming “that a correct charge on the

plaintiff’s standard of proof in her ADEA claim would not have made a differ-

ence to the verdict.” Id. at 224. We cannot say the same here.

         Although there is evidence from which a reasonable jury could con-

clude that Woods’s deficient performance served as the sole basis for her ter-



                                       19
mination, we are unable to conclude that that evidence is so overwhelming as

to render the erroneous instruction harmless. That error, coupled with the

erroneous admission of the adverse inferences against Woods described be-

low, resulted in impermissible prejudice.

                                      III

      We next consider Woods’s challenge to the admission of adverse infer-

ences based on her invocation of the Fifth Amendment privilege against self-

incrimination in her deposition. We review for abuse of discretion the district

court’s admission into evidence of a witness’s invocation of the Fifth Amend-

ment, Abascal v. Fleckenstein, 820 F.3d 561, 564 (2d Cir. 2016), and we re-

view de novo the related jury instructions, United States v. Ford, 435 F.3d

204, 209 (2d Cir. 2006). In evaluating whether the admission of certain evi-

dence was erroneous, we consider the following relevant factors: “(1) whether

the evidence bore on the most important issues in the case; (2) whether the

evidence was simply cumulative or corroborative; (3) whether the evidence

was used in summation; and (4) whether the appellee’s case was particularly

strong.” Abascal, 820 F.3d at 567. The admission of the adverse inferences

here resulted in prejudicial error.

      The district court gave the following instruction as part of its final

charge to the jury:

             [F]rom the plaintiff’s invocation of the Fifth
             Amendment, you may draw certain conclusions but
             are not required to do so. Specifically, you may in-
             fer that the plaintiff’s answers at her deposition, if

                                      20
             she had not refused to answer, would have been
             “yes” to the questions asked, if she had not invoked
             the Fifth Amendment. You may, but are not re-
             quired to, draw these inferences against the plain-
             tiff when you are evaluating her credibility, and
             you can give these inferences whatever weight that
             you wish or, if you choose to give it no weight, you
             can do that.

J. App’x 642–43. The instruction accurately states the law insofar as “the

Fifth Amendment does not forbid adverse inferences against parties to civil

actions when they refuse to testify in response to probative evidence offered

against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such adverse

inferences are appropriately admitted, however, only if they are relevant, re-

liable, and not unduly prejudicial. See Brink’s Inc. v. City of New York, 717

F.2d 700, 710 (2d Cir. 1983). We conclude that the district court exceeded the

bounds of its discretion in admitting and permitting the adverse inferences to

be drawn here.

      First, most of the questions in Woods’s deposition were merely whether

Woods had been accused of something. Even assuming her answers would

have been “yes,” accusations have little, if any, probative value because the

innocent and guilty alike can be accused of wrongdoing. Without more, accu-

sations do not “impeach the integrity or impair the credibility of a witness.”

Michelson v. United States, 335 U.S. 469, 482 (1948). Thus, Woods suffered

acute prejudice from the admission of adverse inferences based on her an-

swers to those deposition questions and from the court’s related instructions.




                                      21
       Second, Woods suffered even harsher prejudice from the admission of

an adverse inference based on her invocation of the Fifth Amendment in re-

sponse to being asked whether she was ever convicted of any immoral or un-

ethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of

a conviction only when the crime is a felony or the court “can readily deter-

mine that establishing the elements of the crime” required proving a “dishon-

est act or false statement.” The district court here failed to consider whether

the requirements of Rule 609(a) were met. The results of a Rule 609(a) analy-

sis are especially important in this case because the record is unclear as to

what, if any, crime Woods was convicted of. Indeed, there was only a refer-

ence to “disorderly conduct,” which is not necessarily “dishonest,” much less

“immoral” or “unethical.” An adverse inference based upon Woods declining

to answer that deposition question is of questionable probative value on the

issue of her credibility.

       Third, the danger of unfair prejudice is high when a jury is told that a

witness declined to answer a question by invoking the Fifth Amendment; the

implication is, at best, that the witness refused to answer because she had

something to hide. We tolerate some danger of prejudice from such inferences

in civil cases, unless it substantially outweighs the probative value of those

inferences. See Brink’s Inc., 717 F.2d at 710. Here, the way in which Woods’s

Fifth Amendment invocation was raised and later argued at closing elevated

the prejudice to an intolerable level. Woods’s Fifth Amendment invocation



                                      22
was repeatedly emphasized—defense counsel raised it during Woods’s cross-

examination, the district court instructed the jury on it, and defense counsel

argued it during his summation. Although defense counsel attempted to

moderate this line of argument, see J. App’x 632 (“I am not hanging my hat

on [the] Fifth Amendment invocation.”), he did so only after forcefully high-

lighting the inferences that the jury was permitted to draw. In arguing that

the entire case hinged on Woods’s credibility, defense counsel told the jury

“you are permitted in this case to infer that Ms. Woods was the subject of a

government grand jury investigation, was accused of fraud, lying, fabricating

events, and misrepresenting facts to the government and was then convicted

of a crime.” Id. Defense counsel’s statement was consistent with the district

court’s instruction, but the inferences that the jury was permitted to draw did

not necessarily mean anything with respect to Woods’s credibility or charac-

ter for truthfulness.

        Apart from allowing such vigorous argument on this point, the dis-

trict court erred by failing to engage in the required Rule 403 analysis. See

Brink’s, Inc., 717 F.2d at 710. In our view, the unfair prejudice Woods suf-

fered substantially outweighed the minimal, if not immaterial, probative val-

ue of Woods’s Fifth Amendment invocation. Accordingly, it was error for the

district court to admit those invocations into evidence and to instruct the jury

as to what it was allowed to infer from them.




                                      23
                                      IV

      We have considered Woods’s remaining arguments and find them to be

without merit. Nevertheless, the incorrect jury instruction on the causation

standard for Woods’s FMLA retaliation claim and the admission of adverse

inferences based on Woods’s invocation of her Fifth Amendment privilege

during the course of her deposition generated prejudicial error. Accordingly,

the judgment of the district court is VACATED and the case is REMANDED

for further proceedings not inconsistent with this opinion.




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