Woods v. START Treatment & Recovery Ctrs. , 864 F.3d 158 ( 2017 )


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  • 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.
    24
    

Document Info

Docket Number: 16-1318-cv

Citation Numbers: 864 F.3d 158

Filed Date: 7/19/2017

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (23)

Hodgens v. General Dynamics Corp. , 144 F.3d 151 ( 1998 )

Colburn v. Parker Hannifin/Nichols Portland Division , 429 F.3d 325 ( 2005 )

Lore v. City of Syracuse , 670 F.3d 127 ( 2012 )

Elizabeth Gordon v. New York City Board of Education , 232 F.3d 111 ( 2000 )

Abdulkhaleq Mugalli v. John Ashcroft, Attorney General of ... , 258 F.3d 52 ( 2001 )

Audrey Jacques, Plaintiff-Appellee-Cross-Appellant v. ... , 386 F.3d 192 ( 2004 )

Martin T. Kosmynka and Christine Kosmynka v. Polaris ... , 462 F.3d 74 ( 2006 )

United States v. Patricia J. Ford , 435 F.3d 204 ( 2006 )

Peter Potenza, Clifford Aversano v. City of New York , 365 F.3d 165 ( 2004 )

Maryanne RENZ, Plaintiff-Appellant, v. GREY ADVERTISING, ... , 135 F.3d 217 ( 1997 )

Joseph H. Holzapfel, and Others Similarly Situated v. Town ... , 145 F.3d 516 ( 1998 )

Millea v. Metro-North Railroad , 658 F.3d 154 ( 2011 )

a-michael-sista-plaintiff-appellant-cross-appellee-v-cdc-ixis-north , 445 F.3d 161 ( 2006 )

brinks-inc-v-the-city-of-new-york-brinks-inc , 717 F.2d 700 ( 1983 )

Bryant v. Dollar General Corp. , 538 F.3d 394 ( 2008 )

United States v. Mead Corp. , 121 S. Ct. 2164 ( 2001 )

Baxter v. Palmigiano , 96 S. Ct. 1551 ( 1976 )

Burlington Northern & Santa Fe Railway Co. v. White , 126 S. Ct. 2405 ( 2006 )

Gross v. FBL Financial Services, Inc. , 129 S. Ct. 2343 ( 2009 )

Pamela Richardson v. Monitronics International, Inc. , 434 F.3d 327 ( 2005 )

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