Woods v. Addiction Research and Treatme

Filing

OPINION, the judgment of the district court is vacated and the case is remanded, by ALK, PWH DC, FILED.[2081607] [16-1318]

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page1 of 24
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.

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page2 of 24

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 Defendant-Appellee.
RACHEL GOLDBERG, Senior Attorney (M. Patricia Smith, Solicitor of Labor, Jennifer S.
Brand, Associate Solicitor, William C. Lesser, 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 PlaintiffAppellant.
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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page3 of 24

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 impermissible 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page4 of 24

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 implemented 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 received 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page5 of 24

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 perform [her] job duties as directed and/or within designated time frames despite 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 extended 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 direct 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 requested 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 human resources department, and requested FMLA leave. Shortly thereafter,
Woods cancelled the request. Woods says that she did so because Rodney Julian asked her to; Julian denies that such a conversation ever took place.

5

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page6 of 24

In August 2011, Woods was hospitalized for six days while being treated for her anemia. Although START does not appear to have given Woods a
full explication of her FMLA rights, it did acknowledge that the hospitalization 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 protected under the FMLA. Woods returned to work on April 28, 2012. Twelve days
later, Julian recommended firing Woods, and she was terminated a week later.
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 relevant 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page7 of 24

After the close of discovery, the district court ruled on a number of pretrial 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 credibility, and inadmissible under the Federal Rules of Evidence. The district court
granted START’s motion, ruling that the jurors would be permitted to presume that Woods would have answered the deposition questions in the affirmative. 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 whether 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 termination, 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page8 of 24

At trial, START put on evidence of Woods invoking the Fifth Amendment. During Woods’s cross-examination, defense counsel reviewed the deposition 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 permitted 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 answers 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 Amendment. You may, but are not required to, draw these
inferences against the plaintiff 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 district court also instructed the jury on the ultimate questions before it. One of those questions was whether START retaliated against Woods

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 conduct?” 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.
1

8

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page9 of 24

for exercising her rights under the FMLA. On the retaliation issue, the district 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 performance problems caused by the conditions for which
the FMLA leave is taken. Under the FMLA, a person 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 related to the same elements that gave rise to the
FMLA leave, then the employee can still be terminated based on her work performance problems regardless of the indirect causal link between the
FMLA leave and the decision to terminate the employee.
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 discrimination, you must find that the defendant violated the FMLA.
J. App’x 652–53.
After all of the evidence was submitted and the district court instructed the jury on the applicable law, the jury deliberated for a short time and
returned a complete defense verdict. Woods timely appealed.

9

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page10 of 24

II
Woods first challenges the district court’s jury instruction on the appropriate 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. (quoting 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page11 of 24

“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, restrain, 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 retaliation. 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 employment 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 provision 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page12 of 24

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 attempt 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page13 of 24

rights under the Act would constitute an ‘interfer[ence] with’ and a ‘restrain[t]’ of his exercise of those rights”); see also Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005) (“The term ‘interference’ may, depending on the facts, cover both retaliation claims . . . and
non-retaliation claims . . . .”) (internal citation omitted). The Sixth Circuit assumes 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 Pittsburgh 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 statutory 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page14 of 24

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. terminations 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 consistent with the statutory text of § 2615(a)(2). Section 2615(a)(2) prohibits
adverse employment actions—“discharg[ing] or in any other manner discriminat[ing]”—against employees “for opposing any practice made unlawful by
this subchapter.” Being fired for taking FMLA leave cannot easily be described 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” language.
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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page15 of 24

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 Department 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 concluded 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page16 of 24

claims under § 2615(a)(2), however, because, as we explained above, retaliation 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 “motivating 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 without 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, promotions 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 authority 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 promulgated in the exercise of that authority. Here, Congress delegated to the Secretary of Labor authority to “prescribe such regulations as are necessary to

16

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page17 of 24

carry out” the FMLA. 29 U.S.C. § 2654. The 825.220(c) regulation was promulgated pursuant to that delegation of authority.
The first step of the Chevron analysis is determining whether the statute 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). Section 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 “because” 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 silent on the causation issue in § 2615(a)(1) and has instead delegated a statutory gap-filling function to the Secretary of Labor. Indeed, “express congressional 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 interpretation is reasonable, we defer to it “whether or not it is the only possible interpretation or even the one a court might think best.” Holder v. Mar-

17

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page18 of 24

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 prohibition—“It shall be unlawful . . . to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right”—and the absence of any indication 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 stability 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 reflects the well-reasoned judgment of the executive officer charged with enforcing the rights granted to this country’s employees.

18

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page19 of 24

Accordingly, we defer to the Labor Department’s regulation implementing 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].” Holzapfel 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 plaintiff’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 difference to the verdict.” Id. at 224. We cannot say the same here.
Although there is evidence from which a reasonable jury could conclude that Woods’s deficient performance served as the sole basis for her ter-

19

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page20 of 24

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 below, resulted in impermissible prejudice.
III
We next consider Woods’s challenge to the admission of adverse inferences based on her invocation of the Fifth Amendment privilege against selfincrimination in her deposition. We review for abuse of discretion the district
court’s admission into evidence of a witness’s invocation of the Fifth Amendment, Abascal v. Fleckenstein, 820 F.3d 561, 564 (2d Cir. 2016), and we review 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 evidence 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 infer that the plaintiff’s answers at her deposition, if
20

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page21 of 24

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 required to, draw these inferences against the plaintiff 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, reliable, 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, accusations 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 answers to those deposition questions and from the court’s related instructions.

21

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page22 of 24

Second, Woods suffered even harsher prejudice from the admission of
an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical 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 determine that establishing the elements of the crime” required proving a “dishonest 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) analysis 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 reference 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page23 of 24

was repeatedly emphasized—defense counsel raised it during Woods’s crossexamination, 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 highlighting 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 character for truthfulness.
Apart from allowing such vigorous argument on this point, the district 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 suffered substantially outweighed the minimal, if not immaterial, probative value 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

Case 16-1318, Document 93-1, 07/19/2017, 2081607, Page24 of 24

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.

24