Joseph Egan v. Delaware River Port Authority

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-1471

______________

JOSEPH EGAN,

Appellant

v.

DELAWARE RIVER PORT AUTHORITY

______________

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 2:15-cv-03695)

District Judge: Hon. Timothy J. Savage

______________

Argued: January 12, 2017

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Before: SMITH, Chief Judge, JORDAN and SHWARTZ,

Circuit Judges.

(Filed: March 21, 2017)

Michael J. Salmanson, Esq. [ARGUED]

Scott B. Goldshaw, Esq.

Salmanson Goldshaw, P.C.

1500 John F. Kennedy Boulevard

Two Penn Center, Suite 1230

Philadelphia, PA 19102

Counsel for Appellant

Rachel Goldberg, Esq. [ARGUED]

United States Department of Labor

Division of Fair Labor Standards

Room N2716

200 Constitution Avenue, N.W.

Washington, DC 20210

Counsel for Amicus Appellant

Zachary R. Davis, Esq. [ARGUED]

Danielle M. Dwyer, Esq.

Stevens & Lee

1818 Market Street

29th Floor

Philadelphia, PA 19103

Counsel for Appellee

______________

OPINION OF THE COURT

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SHWARTZ, Circuit Judge.

2

Plaintiff Joseph Egan brought suit against defendant

Delaware River Port Authority, claiming that the Port

Authority discriminated against him in violation of the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 621

et seq. (the “ADEA”), and the Americans with Disabilities

Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA”), and

retaliated against him for exercising his right to take leave

under the Family and Medical Leave Act of 1993, 29 U.S.C.

§ 2601 et seq. (the “FMLA”). A jury found that he was not

the victim of discrimination or retaliation. Egan appeals,

arguing that the District Court erred in: (a) refusing to give a

mixed-motive jury instruction in connection with his FMLA

claim; and (b) excluding testimony from one of Egan’s co-

workers.

To resolve this appeal, we must examine the regulation

upon which Egan’s FMLA retaliation claim is based and

determine whether there is any requirement that a plaintiff

introduce direct evidence of retaliation to pursue a mixed-

motive theory of liability. As we will explain, the

Department of Labor (the “DOL”) acted within its authority

to promulgate the regulation and the regulation’s language

permits a plaintiff to rely on such a theory so long as the

evidence, whether direct or circumstantial, permits a

reasonable juror to conclude that the plaintiff’s use of FMLA

leave was a negative factor in the employer’s adverse

employment decision. Because the District Court erred in

requiring Egan to provide direct evidence of retaliation, we

will vacate the FMLA verdict and remand on that claim.

As to Egan’s ADA claim, because the Court acted

within its discretion in excluding the testimony of Egan’s co-

3

worker, it did not commit reversible error impacting those

claims, and we will affirm the verdict in favor of the Port

Authority on those counts.

I

Egan worked for the Port Authority from July 2008

until October 2012. He was hired as a Projects Manager for

Special Projects. His primary responsibility was to manage

fleet assets such as police vehicles, heavy equipment, and

other vehicles. During his first two years of employment,

only a small percentage of his work involved “economic

development,” which concerned the Port Authority’s efforts

to improve the communities in surrounding areas. App. 150-

51. He did not perform any economic development work

after 2010.

Egan reported to Deputy CEO Robert Gross until

February 2012, when Michael Conallen replaced Gross. In

March 2012, following a meeting with Conallen, Egan was

transferred on special assignment to the Engineering

Department and began reporting to Michael Venuto, the Port

Authority’s Chief Engineer. He was not given a new job

description, and the duration of the assignment was not

determined at that time.

Egan has suffered from migraine headaches since a

1995 accident. Egan testified that the frequency of his

migraines increased “almost instantaneously” with his

transfer to the Engineering Department, and he applied for

FMLA leave in April 2012. App. 77. The Port Authority

approved Egan’s request for intermittent FMLA leave. An

issue arose in July 2012 because Egan had been reporting

4

only the “approximate” number of hours he had worked,

rather than the actual number of hours he had worked and

took FMLA leave, and this discrepancy in Egan’s reported

hours “appear[ed] to be causing a hardship in his

department.” App. 612.

Evidence concerning this alleged “hardship” was

adduced during discovery. The parties deposed one of Egan’s

Engineering Department co-workers, Mark Green. Green

testified that he overheard a conversation between Egan and

Venuto in which Venuto complained, in an “upset and angry”

tone, about Egan’s ability to complete tasks because of health

issues. App. 611. Egan sought to elicit testimony about this

conversation from Green at trial but the District Court

precluded it because Green was not a participant in the

conversation and heard only part of it while walking by

Egan’s office and, to permit it, would be misleading to the

jury.

During trial, Egan did not recount such a conversation

with Venuto. Instead, in response to the question, “Did

[Venuto] ever say anything to you that indicated he was

unhappy with the way you were using FMLA leave?”, Egan

testified:

A. Well, on one occasion he came into my

office and wanted me to—he was angry. He

was upset. I was there working and he said in

the future he wanted me when I left the

premises to wave to his assistant as I was

leaving, and that is somewhat unusual so—

5

Q. Did you feel that that suggested that he was

unhappy with the way you were using FMLA

leave?

A. I think there was a connection and that’s

speculation on my part, but I felt that way.

App. 108-09. Egan also confirmed the accuracy of the

following deposition testimony:

Did [Venuto] ever say anything to you that

indicated that he was not happy with your usage

of FMLA leave?

Answer: No.

App. 109.

In August 2012, Venuto informed Conallen that he

would not request positions for Egan and another employee.

In addition, in October 2012, the Port Authority decided to

eliminate its economic development positions. Thereafter,

and while he was on FMLA leave, Egan was informed that all

“economic development functions” were being eliminated,

his “temporary reassignment” to the Engineering Department

was “deemed completed,” and he was terminated. App. 90.

Egan filed a complaint alleging violations of the

ADEA, ADA, and FMLA. After discovery and motion

practice, the case proceeded to trial. During the trial, the jury

heard testimony from Egan, Venuto, and Green, among

others. After the presentation of the evidence, the District

Court resolved a dispute concerning the jury instructions. At

the Court’s request, the parties presented a joint set of

instructions that included the Third Circuit Model Civil Jury

6

Instructions 10.1.3 and 10.1.2, respectively embodying the

pretext and mixed-motive theories for proving

discrimination. The District Court denied Egan’s request for

1

a mixed-motive instruction for his FMLA retaliation claim,

concluding that a mixed-motive instruction was not warranted

because it should not be given in the FMLA context and, in

any event, Egan had not presented direct evidence of

retaliation.

1

“Generally speaking, in a ‘mixed-motive’ case a

plaintiff claims that an employment decision was based on

both legitimate and illegitimate reasons. Such cases are in

contrast to so-called ‘pretext’ cases, in which a plaintiff

claims that an employer’s stated justification for an

employment decision is false.” Connelly v. Lane Constr.

Corp., 809 F.3d 780, 787 (3d Cir. 2016). Both theories have

been used in FMLA cases in this Circuit. See, e.g., Budhun

v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256-57 (3d Cir.

2014) (pretext theory); Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012) (mixed-

motive theory). Under the FMLA regulation at issue in this

case, a plaintiff pursuing a mixed-motive theory must show

that exercise of FMLA rights was “a negative factor” in the

employer’s employment decision. 29 C.F.R. § 825.220(c). A

plaintiff who proceeds to trial under a pretext theory must

prove that a protected characteristic or the exercise of a

protected right was a determinative factor and therefore had a

determinative effect on the decision such that in the absence

of the characteristic or protected conduct, the adverse

employment action would not have occurred. See Miller v.

CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995) (en banc).

7

The jury returned a verdict for the Port Authority on

all counts. Egan appeals, arguing that the District Court erred

in denying his request for the mixed-motive instruction for his

FMLA claim and, with respect to the ADA and FMLA

claims, erred in precluding him from presenting Green’s

testimony about Egan and Venuto’s conversation.

II2

A

We will first examine Egan’s challenge to the District

Court’s ruling denying his request for a mixed-motive jury

instruction in connection with his FMLA retaliation claim.

When a party properly objects to a jury instruction, as here,

“we exercise plenary review to determine whether the

instruction misstated the applicable law.” Franklin

Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 338 (3d

Cir. 2005). In this case, this review entails determining

whether the DOL properly exercised its authority to

promulgate the regulation upon which Egan’s retaliation

claim is based, and, if so, whether it embodies a reasonable

construction of the FMLA, including whether its inclusion of

a mixed-motive approach to liability is permitted under Gross

v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and

University of Texas Southwestern Medical Center v. Nassar,

133 S. Ct. 2517 (2013). If such a theory is permissible, then

we must decide whether a plaintiff is required to present

direct evidence to obtain a mixed-motive jury instruction.

2

The District Court had jurisdiction pursuant to 28

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

8

1

Our Court has premised liability for FMLA retaliation

claims on a DOL regulation, 29 C.F.R. § 825.220(c), which

embodies the DOL’s interpretation of the FMLA. Until now,

however, we have not been required to examine whether the

regulation embodies a permissible construction of the FMLA

to which we must defer under Chevron v. Natural Resources

Defense Council, 467 U.S. 837 (1984). To make this

determination, we must answer two questions:

First, always, is the question whether Congress

has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is

the end of the matter; for the court, as well as

the agency, must give effect to the

unambiguously expressed intent of Congress.

If, however, the court determines Congress has

not directly addressed the precise question at

issue, the court does not simply impose its own

construction on the statute, as would be

necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the

question for the court is whether the agency’s

answer is based on a permissible construction of

the statute.

Id. at 842-43. The question of whether Congress has spoken

on the question at issue is known as Chevron step one. If we

9

determine that Congress has not spoken on the precise issue,

then we proceed to what is known as Chevron step two,

where we examine whether the interpretation of the statute as

embodied in the regulation is reasonable.

At Chevron step one, courts may “‘employ [ ]

traditional tools of statutory construction [to] ascertain[ ] that

Congress had an intention on the precise question at issue.’”

Zheng v. Gonzales, 422 F.3d 98, 112 (3d Cir. 2005) (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)). We

“read the language in [the] broader context of the statute as a

whole.” Geisinger Cmty. Med. Ctr. v. Sec’y U.S. Dep’t of

Health & Human Servs., 794 F.3d 383, 391 (3d Cir. 2015).

“If the statute’s language is clear and unambiguous, we

uphold the plain meaning of the statute.” Cheruku v. Att’y

Gen. of U.S., 662 F.3d 198, 202 (3d Cir. 2011).

We thus turn to the language of the FMLA to

determine whether it provides precise guidance as to whether

the FMLA protects an employee from retaliation. Under the

FMLA, it is “unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to exercise, any

right provided under this subchapter,” including the right to

seek or use FMLA leave. 29 U.S.C. § 2615(a)(1). The

FMLA also makes it “unlawful for any employer to discharge

or in any other manner discriminate against any individual for

opposing any practice made unlawful by this subchapter.” Id.

§ 2615(a)(2).

10

The statute does not specifically provide for a

retaliation claim.3 In light of Congress’s language and goals,

however, we cannot say that this silence means that Congress

did not intend to protect those who invoke their FMLA rights

from retribution. Congress chose words that broadly protect

individuals who invoke their FMLA rights. For instance, in

§ 2615(a)(1), Congress made it “unlawful for any employer to

interfere with . . . the exercise of . . . any right provided” by

the FMLA which includes the right to take up to “12

workweeks of leave during any twelve-month period” if the

employee has a “serious health condition that makes the

employee unable to perform the functions of the position of

such employee.” 29 U.S.C. § 2612(a)(1)(D). This right could

be interfered with by, for example, prohibiting the individual

3

Our Court has described, in general terms, §

2615(a)(1) as the “interference” provision and § 2615(a)(2) as

the “retaliation” provision. See Lichtenstein, 691 F.3d at 301;

see also Hansler, 798 F.3d at 158 (“Retaliation claims arise

out of the [FMLA’s] prohibition on employers ‘discharg[ing]

or in any other manner discriminat[ing] against any individual

for opposing any practice made unlawful’” (quoting 29

U.S.C. § 2615(a)(2) and citing § 825.220(c)). The DOL,

however, has concluded that retaliation flows from

§ 2615(a)(1). 73 Fed. Reg. 67,986 (Nov. 17, 2008) (stating

that “[a]lthough section 2615(a)(2) of the Act also may be

read to bar retaliation . . . , the Department believes that

section 2615(a)(1) provides a clearer statutory basis for

§ 825.220(c)’s prohibition on discrimination and retaliation”).

Since we are examining only the DOL’s interpretation of the

interference provision of § 2615(a)(1), we need not address

§ 2615(a)(2)’s prohibition of retaliation for “opposing any

practice made unlawful” by the FMLA.

11

who has such a condition from being permitted to take such

leave or by requiring the person to engage in significant work

while on FMLA leave. Interference could also occur if an

employee fears that he or she will be retaliated against for

taking such leave. Thus, because the term “interfere with” is

susceptible to multiple interpretations, and the statutory

language does not directly address whether retaliation is

among the actions an employer is prohibited from taking

under the FMLA, Congress has not spoken on the “precise

question” before us. Chevron, 467 U.S. at 842.

Therefore, we move to Chevron step two to determine

whether the DOL’s interpretation of § 2615 to include

prohibiting retaliation “is based on a permissible construction

of the statute” to which we are required to defer. Id. at 843.

As the Chevron Court instructed, “legislative regulations are

given controlling weight unless they are arbitrary, capricious,

or manifestly contrary to the statute.” Id. at 844. “A court

may conclude that a regulation is arbitrary and capricious

only if the agency relied on facts other than those intended by

Congress, did not consider an important aspect of the issue

confronting the agency, provided an explanation for its

decision which runs counter to the evidence before the

agency, or is entirely implausible.” Gardner v. Grandolsky,

585 F.3d 786, 790 (3d Cir. 2009) (citation and internal

quotation marks omitted). Although our “inquiry into the

facts is to be searching and careful, the ultimate standard of

review is a narrow one,” and we are “not empowered to

substitute [our] judgment for that of the agency.” Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

Congress empowered the DOL to “prescribe such

regulations as are necessary to carry out” the FMLA. 29

12

U.S.C. § 2654. The DOL identified § 2615(a)(1) as the

source of the prohibition against retaliation and promulgated

a regulation that made retaliation for exercising FMLA rights

unlawful. The regulation, 29 C.F.R. § 825.220(c), states that

“[t]he Act’s prohibition against interference prohibits an

employer from discriminating or retaliating against an

employee or prospective employee for having exercised or

attempted to exercise FMLA rights,” and further states that

“employers cannot use the taking of FMLA leave as a

negative factor in employment actions.” 29 C.F.R.

§ 825.220(c).

We conclude that § 825.220(c) is a reasonable

interpretation of § 2615(a)(1). The DOL’s interpretation is

consistent with the purposes of the FMLA, which include

“entitl[ing] employees to take reasonable leave for medical

reasons” without interference. 29 U.S.C. §§ 2601(b)(2),

2615(a)(1); Bachelder v. Am. W. Airlines, Inc., 259 F.3d

1112, 1119 (9th Cir. 2001) (discussing legislative history and

stating, among other things, that “[t]he FMLA provides job

security to employees who must be absent from work because

of their own illnesses”). Indeed, “the established

understanding at the time the FMLA was enacted was that

employer actions that deter employees’ participation in

protected activities constitute ‘interference’ or ‘restraint’ with

the employees’ exercise of their rights,” and “attaching

negative consequences to the exercise of protected rights

surely ‘tends to chill’ an employee’s willingness to exercise

those rights.” Bachelder, 259 F.3d at 1124. To allow an

employer to take an adverse employment action against an

employee who takes FMLA leave would “undoubtedly run

contrary to Congress’s purpose in passing the FMLA.”

Bryant v. Dollar Gen. Corp., 538 F.3d 394, 401 (6th Cir.

13

2008). We agree with our colleagues in the Sixth and Ninth

Circuits, as well as the Secretary of Labor, that “to permit

employees to take leave from work for certain family and

medical reasons and to return to the same or equivalent job at

the conclusion of that leave” would be undermined if

retaliation were not prohibited, Br. of Sec’y of Labor as

Amicus Curiae in Support of Appellant 8-9. Thus, the

regulation prohibiting retaliation for exercising FMLA rights

is consistent with Congress’s goal of enabling workers to

address serious health issues without repercussion.

2

Having concluded that the regulation is a reasonable

interpretation of the FMLA’s interference provision, we must

examine the DOL’s decision to impose a requirement to

consider the reason for the employer’s action. We conclude

that it is appropriate for the DOL to set forth in the regulation

what constitutes retaliation, including this requirement for

such a claim.

The regulation precludes an employer from placing

negative weight on the use of FMLA leave when making an

employment decision. As we explained in Lichtenstein v.

University of Pittsburgh Medical Center, 691 F.3d 294 (3d

Cir. 2012), under the regulation, “employers are barred from

considering an employee’s FMLA leave ‘as a negative factor’

in employment decisions,” and that “an employee does not

need to prove that invoking FMLA rights was the sole or

most important factor upon which the employer acted.” Id. at

301. Thus, under the regulation, an employee who claims

retaliation and seeks to proceed under a mixed-motive

approach must show that his or her use of FMLA leave was

14

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

action.

Imposing this requirement makes sense, especially

since a claim of retaliation includes an implication that the

employer was motivated at least in part by the employee’s use

of FMLA leave. The interference provision of § 2615(a)(1)

does not explicitly require a relationship between intent and

outcome. See id. at 312. By including the “a negative factor”

requirement, the DOL further addressed the gap left open by

the statute’s silence on the availability of a claim of

retaliation and recognized that such a claim requires proof

that the employer’s motivation contributed to the adverse

action. Thus, the DOL did not act arbitrarily in including

such a requirement.

3

We next consider whether the selection of a

requirement that a plaintiff show only that the use of FMLA

leave was a negative factor in the employer’s adverse job

action, as opposed to the but-for cause of the action, is

arbitrary or capricious. Congress has embraced both but-for

and mixed-motive approaches in its anti-discrimination laws,

and so long as there is a nonarbitrary basis for the DOL to

select a mixed-motive approach, we are required to defer to

the agency.

In the ADEA and in Title VII’s anti-retaliation

provision, Congress chose language that made clear that a

plaintiff must prove “but-for” causation between the adverse

employment action and the protected characteristic, in the

case of the ADEA, and the protected act, in the case of Title

15

VII retaliation. In Gross, the Supreme Court observed that

“[u]nlike Title VII[’s anti-discrimination provision], the

ADEA’s text does not provide that a plaintiff may establish

discrimination by showing that age was simply a motivating

factor.” 557 U.S. at 174. The text of the ADEA provides that

an employer may not “‘fail or refuse to hire or . . . discharge

any individual or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s age.’” Id. at 176 (quoting 29 U.S.C. § 623(a)(1)

(emphasis in Gross)). The Court reasoned “the ordinary

meaning of the ADEA’s requirement that an employer took

adverse action ‘because of’ age is that age was the ‘reason’

that the employer decided to act,” and a plaintiff must

therefore prove that age was a “but-for” cause of the

employer’s adverse decision in order to establish a disparate-

treatment claim. Id. at 176-77.

Similarly, in Nassar, the Supreme Court held that Title

VII retaliation claims—where Title VII “makes it unlawful

for an employer to take adverse employment action against an

employee ‘because’ of certain criteria”—“require proof that

the desire to retaliate was the but-for cause of the challenged

employment action.” 133 S. Ct. at 2528. Notably, the Court

distinguished Title VII’s anti-retaliation provision from its

“principal” anti-discrimination provision, which states that a

plaintiff establishes discrimination when he or she

“demonstrates that race, color, religion, sex, or national origin

was a motivating factor, for any employment practice, even

though other factors also motivated the practice.” Id. at 2526

(emphasis added) (quoting 42 U.S.C. § 2000e-2(m)). The

anti-discrimination provision, with its “lessened causation

standard,” allows for a mixed-motive instruction. See id.

16

Thus, based on the statutory language, the Court recognized

that different causation standards may apply to different

claims.

The FMLA interference provision on which the

regulation is based does not provide a causation standard and

thus does not unambiguously require the use of “but-for”

causation. See Chase v. U.S. Postal Serv., 149 F. Supp. 3d

195, 210 (D. Mass. 2016) (stating that “[t]he statute does not

speak directly to standards for causation and provides no

unambiguous indication that but-for causation is required”

and concluding that § 825.220(c) is entitled to controlling

Chevron deference), aff’d, 843 F.3d 553, 559 n.2 (1st Cir.

2016) (taking no position on Chevron deference or

§ 825.220(c)’s causation standard). Section 825.220(c) fills

in that gap. Its text, which uses the phrase “a negative

factor,” resembles the “lessened causation standard” in

§ 2000e-2(m) and stands in contrast to the “because”

language in the ADEA (at issue in Gross) and Title VII’s anti-

retaliation provision (at issue in Nassar).

We cannot say that choosing something other than

“but-for” causation is unreasonable. As demonstrated above,

Congress has endorsed the use of a lessened causation

standard in Title VII’s anti-discrimination provisions.

Congress’s choice reflects a view that consideration of any of

the protected characteristics set forth in the statute, namely

race, color, religion, sex, or national origin, is never

permissible, even if it is not the sole reason for the

employment decision. Similarly, in enacting the FMLA,

Congress chose to ensure that those who need to address

serious health issues may do so without interference. The

regulation precludes an employer from considering the use of

17

such leave as a negative factor in an employment decision.

Thus, like Title VII’s anti-discrimination provision, it seeks to

ensure that engaging in such protected activity does not

negatively impact an employee. This choice is consistent

with Congress’s goals in enacting the FMLA and the sort of

“legitimate policy choice[ ]” the agency is entitled to make.

Chevron, 467 U.S. at 866; Chase, 149 F. Supp. 3d at 210

(“The relaxed causation standard provided by the [DOL] is

precisely the sort of ‘legitimate policy choice[ ]’ that Chevron

empowers a properly delegated agency to make.” (quoting

Chevron, 476 U.S. at 866) (alteration in Chase)). We cannot

say this approach is arbitrary, and there is nothing to show

that it is inconsistent with the teachings of Gross or Nassar.

See Hunter v. Valley View Local Sch., 579 F.3d 688, 692

(6th Cir. 2009) (observing that “[t]he phrase ‘a negative

factor’ envisions that the challenged employment decision

might also rest on other, permissible factors,” and thus

“continu[ing] to find Price Waterhouse’s burden-shifting

framework applicable to FMLA retaliation claims” after

Gross); see also Bachelder, 259 F.3d at 1122-25 (holding that

§ 825.220(c) “is a reasonable interpretation of the statute’s

prohibition on ‘interference with’ and ‘restraint of’

employee’s rights under the FMLA [§ 2615(a)(1)]” and that

“[t]he Labor Department’s conclusion that employer use of

‘the taking of FMLA leave as a negative factor in

employment actions’ . . . violates . . . the Act is . . . a

reasonable one”).

For these reasons, we hold that the DOL’s use of a

mixed-motive framework is not inconsistent with Nassar and

Gross, and the regulation’s mixed-motive approach is a

permissible construction of the statute. Therefore,

§ 825.220(c) is entitled to controlling deference under

18

Chevron, and a mixed-motive jury instruction is available for

FMLA retaliation claims.

4

Having concluded that a mixed-motive instruction is

available for FMLA retaliation claims, the next question is

the evidentiary threshold to obtain that instruction. As

explained below, the Supreme Court has made clear that

direct evidence is not required to proceed under a mixed-

motive theory of liability.

In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the

Supreme Court held that direct evidence is not required for a

court to deliver a mixed-motive jury instruction for Title VII

claims under § 2000e-2(m). Id. at 92, 101-02. Section

2000e-2(m) requires only that a plaintiff “‘demonstrat[e]’ that

an employer used a forbidden consideration with respect to

‘any employment practice,’ which “[o]n its face . . . does not

mention, much less require, that a plaintiff make a heightened

showing through direct evidence.” Id. at 98-99 (quoting 42

U.S.C. § 2000e-2(m) (alteration in Desert Palace)). The

Court observed that “Title VII’s silence” regarding the type of

evidence necessary in mixed-motive cases “also suggests that

we should not depart from the “‘[c]onventional rul[e] of civil

litigation [that] generally appl[ies] in Title VII cases,’” which

“requires a plaintiff to prove his case ‘by a preponderance of

the evidence,’ . . . using ‘direct or circumstantial evidence.’”

Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253

(1989) (alterations in Desert Palace)).

We have followed Desert Palace within and outside of

the Title VII context. See, e.g., Araujo v. N.J. Transit Rail

19

Operations, Inc., 708 F.3d 152, 161 (3d Cir. 2013) (citing

Desert Palace and stating that direct evidence is not required

for a retaliation claim under the Federal Rail Safety Act);

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (stating

that Desert Palace held that a plaintiff need not present direct

evidence in a mixed-motive Title VII discrimination case). In

addition, the Courts of Appeals for the First, Seventh, Ninth,

and Tenth Circuits have said that a plaintiff may establish an

FMLA retaliation claim by either direct or circumstantial

evidence. See Twigg v. Hawker Beechcraft Corp., 659 F.3d

987, 999-1000, 1004-05 (10th Cir. 2011); Lewis v. Sch. Dist.

#70, 523 F.3d 730, 742 (7th Cir. 2008); Hillstrom v. Best W.

TLC Hotel, 354 F.3d 27, 30-31 (1st Cir. 2003); Bachelder,

259 F.3d at 1125.

Like Title VII, the FMLA is silent concerning whether

direct evidence is required to prove a claim. As a result, “we

should not depart from the [c]onventional rule[s] of civil

litigation,” which allow a plaintiff to prove his claim using

direct or circumstantial evidence. Desert Palace, 539 U.S. at

98-99 (citation and internal quotation marks omitted). Thus,

we join our sister circuits in applying Desert Palace and

holding that direct evidence is not required to obtain a mixed-

motive instruction under the FMLA.

Here, the District Court denied Egan’s request for a

mixed-motive instruction, explaining that “there was no direct

evidence which was the qualifying ground for submitting” a

mixed-motive instruction to the jury. App. 509. As discussed

above, after Desert Palace, Egan was not required to produce

20

direct evidence to receive a mixed-motive instruction.4 Thus,

the District Court erred in requiring Egan to produce direct

evidence of retaliatory motive to obtain the mixed-motive

instruction. Rather, in response to the request for the

instruction, the Court should have determined whether there

was evidence from which a reasonable jury could conclude

that the Port Authority had legitimate and illegitimate reasons

for its employment decision and that Egan’s use of FMLA

leave was a negative factor in the employment decision. 5 We

4

While Defendants pointed to a few of our cases as

authority that direct evidence is required for mixed-motive

instructions in FMLA retaliation claims even after Desert

Palace, we have not held as much because that issue was

never outcome-determinative until this case. See Ross v.

Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (noting that the

plaintiff did “not argue that his retaliation claims are mixed-

motive claims”); Lichtenstein, 691 F.3d at 302 (holding that

whether the case could proceed under a mixed-motive

instruction was not relevant because the case could proceed

under “the more taxing McDonnell Douglas standard”);

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 136, 147

(3d Cir. 2004) (noting that the defendant did not contest that

the plaintiff supplied direct evidence).

5

The Port Authority argues that this error in the jury

instruction was harmless because the jury quickly returned a

verdict finding that Egan’s use of FMLA leave was not the

motivating factor for his termination. A jury instruction error

“is not harmless if it could have ‘reasonably . . . affected the

outcome of the trial’ or if the jury ‘quite possibly’ relied on

an erroneous instruction.’” Avaya Inc., RP v. Telecom Labs,

Inc., 838 F.3d 354, 396 (3d Cir. 2016) (quoting Hill v.

Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 411 (3d

21

will therefore vacate the FMLA judgment entered in favor of

the Port Authority and remand.

B

We next examine Egan’s assertion that the District

Court abused its discretion by precluding Green’s testimony

pursuant to Federal Rule of Evidence 403. We review a

district court’s Rule 403 ruling for abuse of discretion, United

States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010), and

reverse only if the error was not harmless.

“A district court has broad discretion to determine the

admissibility of relevant evidence in response to an objection

under Rule 403.” Id. (citation and internal quotation marks

omitted). Under Rule 403, “the court may exclude relevant

evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403. The Rule 403 inquiry is inexact,

Cir. 2006), and Hirst v. Inverness Hotel Corp., 544 F.3d 221,

228 (3d Cir. 2008)). Here, the difference between “but-for”

and "mixed-motive" instruction goes to the central issue

before jury: Why was Egan fired? There is no question that a

significant change relating to this critical issue could have

reasonably affected the outcome of the trial. See Gross v.

FBL Fin. Servs., Inc., 588 F.3d 614, 617 (8th Cir. 2009)

(holding that the improper use of a “mixed-motive”

instruction in a “but-for” case “shifted the burden of

persuasion on a central issue in the case,” and therefore “the

error cannot be harmless”).

22

“requiring sensitivity on the part of the trial court to the

subtleties of the particular situation, and considerable

deference on the part of the reviewing court to the hands-on

judgment of the trial judge.” Vosburgh, 602 F.3d at 537

(citation and internal quotation marks omitted). Thus, “[w]e

will not disturb the District Court’s ruling unless it was

arbitrary or irrational.” Id. (citation and internal quotation

marks omitted). If a trial court fails to articulate its balance

between the probative value and the prejudicial effect of

evidence, we either “decide the trial court implicitly

performed the required balance; or, if we decide the trial court

did not, we undertake to perform the balance ourself.” United

States v. Eufrasio, 935 F.2d 553, 572 (3d Cir. 1991).

If we conclude it was error to exclude or admit a piece

of evidence, then we review the ruling to determine if the

exclusion or admission of the evidence was harmless. Under

the harmless error standard, the erroneous exclusion or

admission of evidence will not require reversal “if it is highly

probable that the error did not contribute to the judgment.”

United States v. Cross, 308 F.3d 308, 326 (3d Cir. 2002)

(citation and internal quotation marks omitted).

Here, the District Court sustained the Port Authority’s

objection to Green’s testimony about a conversation between

Venuto and Egan that he overheard. The following occurred

during Green’s direct examination:

Q. Did you ever hear Mr.—did you ever

observe Mr. Egan and Mr. Venuto in Mr.

Egan’s office?

A. Yes.

Q. And what did you observe?

23

Mr. Davis [Port Authority’s counsel]:

Objection, Your Honor.

The Court: Sustained.

...

Q. When you observed them in their office,

were you—were they having a conversation?

A. Yes.

Q. And were you able to hear the conversation?

A. Yes.

Q. Can you please describe the conversation

that Mr. Egan—

The Court: were you present in the room?

The Witness: No, Sir.

The Court: But you could hear the

conversation?

A. Yes.

...

Q. Where were you standing for this

conversation?

A. I was walking down a corridor towards Mr.

Egan’s office—actually, past Mr. Egan’s office,

and I heard the conversation that way.

Mr. Davis: Objection, Your Honor.

The Court: Did you continue walking?

The Witness: Yes.

The Court: You didn’t stop to listen?

The Witness: No.

The Court: So you were able to hear this as

you’re walking, the whole conversation?

The Witness: Not the whole conversation but a

great deal. They were pretty loud.

Mr. Davis: Objection, Your Honor.

The Court: Sustained.

24

Mr. Salmanson [Egan’s counsel]: What’s the

basis for the objection?

The Court: He didn’t hear the entire

conversation.

Mr. Salmanson: And could he relay the part of

the conversation he did hear?

The Court: No, because it would be incomplete

and misleading.

Mr. Salmanson: I have nothing further, Your

Honor.

App. 170-72. The transcript shows that the District Court did

not explicitly conduct a balancing inquiry under Rule 403, but

it did identify one 403 consideration, that admission of only a

part of the conversation could be misleading. While we

strongly prefer that the District Court explain how it balanced

the Rule 403 considerations, we will perform the balancing

analysis ourselves to determine whether the District Court

abused its discretion. See Eufrasio, 935 F.2d at 572.

First, we examine the probative value of the proposed

testimony. Green’s testimony, as shown in his deposition and

the District Court’s summary judgment order, was probative

of the Port Authority’s motivation in terminating Egan.

Green testified in his deposition that he heard Egan and

Venuto “having an exchange” when he was walking by

Egan’s office. App. 610. He explained that:

[W]hat I could hear was Mr. Egan telling Mr.

Venuto that he couldn’t commit to a certain task

because of his underlying health issues. He

wasn’t sure if he could commit to the deadline.

And I overheard Mr. Venuto yelling, what can

25

you do, Joe, what can you do. And at that time

I turned around and went back to my office. I

didn’t want to be involved in that exchange.

App. 610. He also stated that Venuto “seemed pretty

animated and pretty upset and angry.” App. 611. The

District Court noted the potential probative value of this

testimony in its order denying the Port Authority’s motion for

summary judgment, where it noted that “[r]emarks made by

Michael Venuto . . . may give rise to an inference of

discriminatory animus as to Egan’s age, disability, and

FMLA status” because “Green[ ] testified that Venuto voiced

concerns over Egan’s ability to complete assignments due to

his being out of work for health reasons.” App. 613-14.

Thus, even the District Court recognized that Green’s

testimony about the conversation he overheard was probative

of the Port Authority’s alleged discriminatory animus.

Having concluded that the evidence has probative

value, we turn to the second part of the inquiry, namely

whether the value is substantially outweighed by

considerations in Rule 403 such as prejudice or misleading

the jury. Despite the testimony’s probative value, the District

Court did not abuse its discretion in precluding the testimony

at trial. By the time Green’s testimony was offered, the

District Court had heard Egan’s testimony. Egan did not

recount a conversation like the one Green said he partially

overheard. In addition, the District Court heard no testimony

from Venuto about such a conversation. Thus, the District

Court was presented with a situation where neither participant

in the conversation that Green partially overheard testified

about it. Given the great deference we pay to district courts’

Rule 403 rulings, even if we may have reached a different

26

ruling,6 we cannot say the Court here abused its discretion by

precluding Green’s testimony, and we will not disturb the

verdicts on any of the claims on this basis.7

IV

For the foregoing reasons, we will affirm in part and

vacate and remand in part.

6

Arguably, the District Court could have properly

exercised its discretion and permitted the testimony given

that: (1) the parties could have cross-examined Green about

what he was able to hear; (2) participants in the conversation

testified and could have been questioned about it; and (3) the

jury could have given whatever weight it deemed warranted

to the testimony from a witness who heard only part of a

conversation. Cf. United States v. Mathis, 264 F.3d 321, 327-

28 (3d Cir. 2001) (finding no abuse of discretion for

admitting testimony when the court instructed the jury on the

permissible uses of that testimony and the testimony “was

properly challengeable, and was in fact challenged, by

vigorous cross-examination”).

7

Because our ruling is based upon the trial record

presented on this appeal, we render no opinion about the

admissibility of the testimony at a subsequent trial if the

evidence presented satisfies the District Court that its

probative value is not substantially outweighed by Rule 403

considerations.

27

JORDAN, Circuit Judge, concurring in the judgment.

In our ruling today, we are required to defer to the

Department of Labor’s interpretation of the FMLA. While I

concur in the judgment, I write separately to note my

discomfort with our reasoning, which is dictated by the

regimes of deference adopted by the Supreme Court in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), and Auer v. Robbins, 519 U.S. 452

(1997). The doctrine of deference deserves another look.

Chevron and Auer and their like are, with all respect, contrary

to the roles assigned to the separate branches of government;

they embed perverse incentives in the operations of

government; they spread the spores of the ever-expanding

administrative state; they require us at times to lay aside

fairness and our own best judgment and instead bow to the

nation’s most powerful litigant, the government, for no reason

other than that it is the government. The problems they create

are serious and ought to be fixed.

Our nation’s founders embraced the idea that freedom

is best secured by dividing governmental power into distinct,

structurally separate components. James Madison famously

wrote that “[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands … may justly be

pronounced the very definition of tyranny.” The Federalist

No. 47; see also Rebecca L. Brown, Separated Powers and

Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1538 (1991)

(noting that the constitutions of five states, including Virginia

and Massachusetts, expressly separated governmental power

in ways similar to the United States Constitution). The

Revolutionary generation had learned by hard experience

“that abandonment of separated powers led directly to the loss

1

of accountable, impartial government, which, in turn, led

inevitably to the loss of due process and individual rights.”

Brown, supra at 1538; see also Martin H. Redish & Elizabeth

J. Cisar, “If Angels Were to Govern”: The Need for

Pragmatic Formalism in Separation of Powers Theory, 41

Duke L.J. 449, 476 (1991) (observing that formal separation

of powers is a prophylactic measure intended to prevent one

branch’s accumulation and concentration of powers). Our

Constitution was thus framed specifically to avoid the

concentration of powers in the hands of a single branch of

government. Chevron, however, has dramatically

undermined that purpose.

Each branch of government was meant to act as a

check on the other so that power is not exercised without

accountability. See Perez v. Mortg. Bankers Ass’n, __ U.S.

__, 135 S. Ct. 1199, 1216 (2015) (Thomas, J., concurring)

(“To the Framers, the separation of powers and checks and

balances were more than just theories. They were practical

and real protections for individual liberty in the new

Constitution.”). The checking function of the courts is in our

power of judicial review, it being “emphatically the province

and duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Yet, the Supreme Court has created a doctrine that requires

judges to ignore their own best judgment on how to construe

a statute, if the executive branch shows up in court with any

“reasonable interpretation made by the administrator of an

agency.” Chevron, 467 U.S. at 844.

As though that were not bad enough, our hands are

also tied when an agency interprets or reinterprets its own

rules. Those fetters were put in place by Auer v. Robbins,

2

which extended judicial deference to an agency’s

interpretation of its rules, even in the midst of litigation. 519

U.S. at 462 (1997). The result today is that agencies are

entitled to deference for their interpretation of statutes and

then to a further dose of deference for their interpretation of

the rules and regulations they layer on top of those statutes.1

All the while, federal courts are pushed further and further

away from our constitutional responsibility to “say what the

law is.” 2 Marbury, 5 U.S. at 177; see also Decker v. Nw.

1

Agencies can also play a large role in the drafting and

vetting of legislation, even before it is enacted, so they will at

times have three bites at the law-making apple. See

Christopher J. Walker, Legislating in the Shadows, 165 U. Pa.

L. Rev. (forthcoming 2017), available at

https://ssrn.com/abstract=2826146 (presenting the results of

extensive interviews and surveys with twenty federal

agencies).

2

Several states have expressly rejected the Chevron

framework and their courts have refused to defer to state

agency interpretations of state law. See, e.g., Hughes Gen.

Contractors, Inc. v. Utah Labor Comm’n, 322 P.3d 712, 717-

18 (Utah 2014) (“openly repudiat[ing]” Chevron deference to

agencies and “retain[ing] for the courts the de novo

prerogative of interpreting the law, unencumbered by any

standard of agency deference”); In re Complaint of Rovas

Against SBC Mich., 754 N.W.2d 259, 272 (Mich. 2008)

(“[T]he unyielding deference to agency statutory construction

required by Chevron conflicts with … separation of powers

principles … by compelling delegation of the judiciary’s

constitutional authority to construe statutes to another branch

of government.”); Pub. Water Supply Co. v. DiPasquale, 735

3

Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia, J.,

concurring) (arguing that Auer deference “violate[s] a

fundamental principle of separation of powers—that the

power to write a law and the power to interpret it cannot rest

in the same hands”). Chevron and the cases that have

followed and expanded on it, including Auer, thus

“undermine[] our obligation to provide a judicial check on the

other branches, and … subject[] regulated parties to precisely

the abuses that the Framers sought to prevent.” Perez, 135 S.

Ct. at 1213 (Thomas, J., concurring).

The deference required by Chevron not only erodes the

role of the judiciary, it also diminishes the role of Congress.

Under Chevron, “[s]tatutory ambiguity … becomes an

implicit delegation of rule-making authority, and that

authority is used not to find the best meaning of the text, but

to formulate legally binding rules to fill in gaps based on

policy judgments made by the agency rather than Congress.”

Michigan v. Envtl. Prot. Agency, __ U.S. __, 135 S. Ct. 2699,

2713 (2015) (Thomas, J., concurring). And we in the courts

have abetted that process, largely “abdicat[ing] our duty to

enforce [the] prohibition” against Congressional delegation of

legislative power to executive agencies. Dep’t of Transp. v.

Ass’n of Am. R.R., __ U.S. __, 135 S. Ct. 1225, 1246 (2015)

(Thomas J., concurring). The consequent aggrandizement of

federal executive power at the expense of the legislature leads

to perverse incentives, as Congress is encouraged to pass

vague laws and leave it to agencies to fill in the gaps, rather

A.2d 378, 382 (Del. 1999) (“Statutory interpretation is

ultimately the responsibility of the courts.”).

4

than undertaking the difficult work of reaching consensus on

divisive issues.3

Auer deference further accentuates the shift of power

to the executive branch by encouraging agencies to

promulgate regulations vague enough to allow administrators

wide latitude in deciding how to govern. See Perez, 135 S.

Ct. at 1212 (Scalia, J., concurring) (critiquing Auer deference

because it encourages agencies to “write substantive rules

more broadly and vaguely, leaving plenty of gaps to be filled

in later, using interpretive rules unchecked by notice and

comment” rulemaking). And govern they do, not merely by

enforcing laws passed by the people’s representatives, but

through their own vast and largely unaccountable power. It

is, in fact, a growing power. Deference to agencies

strengthens the executive branch not only in a particular

dispute under judicial review; it tends to the permanent

expansion of the administrative state. Even if some in

Congress want to rein an agency in, doing so is very difficult

3

As well stated by Representative Bob Goodlatte,

Chairman of the House Committee on the Judiciary, Chevron

deference “tempts Congress to let the hardest work of

legislating bleed out of Congress and into the Executive

Branch, since Congress knows judges will defer to agency

interpretations of ambiguities and gaps in statutes Congress

did not truly finish.” The Chevron Doctrine: Constitutional

and Statutory Questions in Judicial Deference to Agencies:

Hearing before the H. Subcomm. on Regulatory Reform,

Commercial and Antitrust Law of the Committee on the

Judiciary, 114th Cong. (March 15, 2016) (Prepared Statement

of the Honorable Bob Goodlatte).

5

because of judicial deference to agency action. Moreover, the

Constitutional requirements of bicameralism and presentment

(along with the President’s veto power), which were intended

as a brake on the federal government, being “designed to

protect the liberties of the people,” are instead, because of

Chevron, “veto gates” that make any legislative effort to

curtail agency overreach a daunting task. Randy R. Barnett,

Our Republican Constitution: Securing the Liberty and

Sovereignty of We the People, 212 (2016).

In short, Chevron “permit[s] executive bureaucracies

to swallow huge amounts of core judicial and legislative

power and concentrate federal power in a way that seems

more than a little difficult to square with the Constitution of

the [F]ramers’ design.” Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).

That deterioration in the separation of powers is not merely a

matter of abstract concern over political theory. The point of

structural separation is, again, the protection of individual

liberty. See NLRB v. Noel Canning, __ U.S. __, 134 S. Ct.

2550, 2559 (2014) (“We recognize, of course, that the

separation of powers can serve to safeguard individual

liberty[.]”). “The doctrine of the separation of powers was

adopted by the Convention of 1787 not to promote efficiency

but to preclude the exercise of arbitrary power.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952)

(Douglas, J., concurring) (quoting Myers v. United States, 272

U.S. 52, 293 (1926) (Brandeis, J., dissenting)).

When the power to create and interpret and enforce the

law is vested in a single branch of government, the risk of

arbitrary conduct is high and individual liberty is in jeopardy.

An agency can change its statutory interpretation with

6

minimal justification and still be entitled to full deference

from Article III courts. See Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)

(“Agency inconsistency is not a basis for declining to analyze

the agency’s interpretation under the Chevron framework.”).

Citizens are therefore left to the mercy of government

functionaries who are free “to bend existing laws, to

reinterpret and apply them retroactively in novel ways and

without advance notice.” Gutierrez-Brizuela, 834 F.3d at

1149 (Gorsuch, J., concurring). We would never allow a

private litigant the power to authoritatively reinterpret the

rules applicable to a dispute, yet we routinely allow the

nation’s most prolific and powerful litigant, the government,

to do exactly that.4 Agencies can make the ground rules and

change them in the middle of the game.5

4

The authority that agencies have to create binding

law and reinterpret it at will may be heard as an echo of the

royal prerogative to issue proclamations and interpret laws, a

power claimed by British monarchs and widely rejected by

Parliament and common law judges during the latter half of

the 17th century. See Philip Hamburger, Is Administrative

Law Unlawful?, 33-63 (2014).

5

The Supreme Court has declared that deference is

inappropriate when an agency’s reinterpretation of its

regulation is “nothing more than a ‘convenient litigating

position’ … a ‘post hoc rationalizatio[n]’ advanced by an

agency seeking to defend past agency action against attack,”

or would result in “unfair surprise.” Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 132 S. Ct. 2156,

2167-68 (2012) (citations omitted) (second alteration in

original). In practice, however, deference is granted even to

7

I am not arguing that there is no role in our system of

government for deference to administrative agencies. They

unquestionably have institutional expertise that allows them

to understand some provisions of law “based upon more

specialized experience and broader investigations and

information than is likely to come to a judge in a particular

case.” Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).

Such expertise may give agencies and the courts assistance

when confronting technical issues. So, for instance, the

Federal Energy Regulatory Commission is well qualified to

determine what is the “just and reasonable” rate that utilities

should pay when purchasing energy from other energy-

producing facilities. Am. Paper Inst., Inc. v. Am. Elec. Power

Serv. Corp., 461 U.S. 402, 415 (1983). Likewise, the

Treasury Department is in a good position to say whether

certain revenue qualifies as “reserve strengthening.” Atl. Mut.

Ins. Co. v. C.I.R., 523 U.S. 382, 389-91 (1998). And the

Department of Energy can helpfully suggest whether “oil

produced from tar sands” includes oil produced using

enhanced extraction techniques. Shell Petroleum, Inc. v.

an agency’s poorly reasoned post-hoc rationalizations. See

Columbia Gas Transmission, LLC v. 1.01 Acres, More or

Less in Penn Twp., York Cty., Pa., Located on Tax ID

#440002800150000000 Owned by Brown, 768 F.3d 300, 316

(3d Cir. 2014) (Jordan J., dissenting) (critiquing the majority

opinion for accepting an agency’s regulatory interpretation

that the agency itself had once acknowledged was “at odds

with … the common understanding” of the terms of the

regulation and that was adopted in a footnote “in the middle

of an unrelated rulemaking” as a “reaction to the District

Court’s decision in [that] case”).

8

United States, 182 F.3d 212, 217 (3d Cir. 1999). But

Supreme Court precedent before Chevron already granted the

“rulings, interpretations and opinions” of agencies a level of

deference consistent with “the thoroughness evident in [the

particular decision under] consideration, the validity of its

reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade.” Skidmore, 323 U.S. at 140. That level of

deference appropriately takes into account an agency’s

specialized knowledge while retaining for the judiciary the

prerogative “to say what the law is.” Marbury, 5 U.S. at 177.

Highly specialized or technical matters are far

different, however, than the legal matters on which federal

courts are now routinely told, in the name of Chevron, to bow

down and obey the executive branch. The facts of this case

illustrate the problem. The Department of Labor is entitled to

tell us where, in a vaguely worded portion of the Family and

Medical Leave Act (FMLA), we are to look for a prohibition

on retaliation against employees who take FMLA leave.

Consequently, even though we determined years ago that

retaliation claims arise under 29 U.S.C. § 2615(a)(2),

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146

n.9 (3d Cir. 2004), we must now defer to the Department of

Labor’s final rule concluding otherwise.6 Then, after

6

Even the Department of Labor recognized that

“section 2615(a)(2) of the Act also may be read to bar

retaliation[.]” Dep’t of Labor Rules and Regulations for the

Family Medical Leave Act of 1993, 73 Fed. Reg. 67934-01

(Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825). But,

because the Department “believe[d] that section 2615(a)(1)

provides a clearer statutory basis for § 825.220(c)’s

9

deferring to the Department’s decision about which provision

of the statute we are supposed to interpret, we must again

defer to the Department when it delineates the rules of proof

regarding such a claim and the kind of jury instruction that

must be given.7 So much for the job of the judicial branch.

Were we free to actually interpret the law rather than

merely defer to an executive agency, we might well conclude

that the FMLA does not allow for a mixed-motive instruction

for Egan’s retaliation claim. “Causation in fact – i.e., proof

that the defendant’s conduct did in fact cause the plaintiff’s

injury – is a standard requirement of any tort claim.” Univ. of

Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517,

2524 (2013). Therefore, “[a]bsent some reason to believe that

Congress intended otherwise,” Gross v. FBL Fin. Servs. Inc.,

557 U.S. 167, 177 (2009), an employee must prove that a

“prohibited criterion was the but-for cause of [an employer’s]

prohibited conduct.” Nassar, 133 S. Ct. at 2523. While the

terms of the FMLA do not expressly foreclose a mixed-

motive instruction, cf. Gross, 557 U.S. at 176 (emphasizing

that the prohibition in the ADEA against discrimination

“because of” an impermissible consideration was

synonymous with a requirement of “but for” causation and

foreclosed a mixed-motive instruction), neither do they

mandate or even encourage such an instruction, cf. Nassar,

prohibition of discrimination and retaliation[,]” we are

obligated to defer to that belief and limit our examination to

§ 2615(a)(1).

7

The differences between “mixed motive” and

“pretext” employment discrimination cases are ably described

in the majority opinion. (Maj. Op. at 7 n.1.)

10

133 S. Ct. at 2534 (emphasizing that the prohibition in Title

VII against retaliation when an impermissible characteristic

was a “motivating factor” clearly permitted a mixed- motive

instruction). Therefore, the default standard of “but for”

causation seems to be applicable and a mixed-motive

instruction would seem out of order.8 Nevertheless, because

the Department of Labor has interpreted the statute

8

Neither Section 2615(a)(1) nor (a)(2) contains

causation language akin to either the “because of” language

of the ADEA or the “motivating factor” language of Title VII.

29 U.S.C. §§ 2615(a)(1)-(2). Section 2615(a)(2) prohibits

discrimination against an individual “for opposing any

practice made unlawful by this subchapter.” Id. at

§ 2615(a)(2). A subsequent section, 2615(b), prohibits

discharging someone “because such [an] individual” filed

charges, gave information in an inquiry, or testified in a

proceeding related to the rights protected by the FMLA –

language closer to that found in the ADEA. Id. at § 2615(b).

The best reading of Section 2615(a)(2) might thus involve

reading the “for opposing” language in harmony with the

“because” language from the subsequent section to conclude

that “but for” causation is required. See Food & Drug Admin.

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 121

(2000) (noting that courts “must place [statutory] provision[s]

in context, interpreting the statute to create a symmetrical and

coherent regulatory scheme”). Regardless, there is no

language akin to “motivating factor” indicating that

something less than “but for” causation is in order and so the

default rule laid out in Gross and Nassar indicates that a

mixed-motive instruction is not warranted.

11

differently, we are obliged to fall in line and adopt a standard

for FMLA claims that Congress has never embraced.

The consequences of this particular distortion of

government functioning are foreseeable. As the Supreme

Court noted in Nassar, “claims of retaliation are being made

with ever-increasing frequency” and “lessening the causation

standard could … contribute to the filing of frivolous claims,

which would siphon resources from efforts by employer[s],

administrative agencies, and courts to combat workplace

harassment.” 133 S. Ct. at 2531-32. Allowing claims to go

forward on the terms dictated by the Department of Labor is a

shift in public policy that should be debated and crafted

within the legislative branch rather than being announced by

unelected officials in an administrative agency. Yet, based on

the judgment of someone inside the Department tasked with

enforcing the FMLA, and despite the District Court’s effort to

say what the law is, employers will now face a lower

threshold of liability than they would have under the default

causation standard. It is worth pondering how we arrived at

this point.9 The trajectory is more important than the result in

this particular case.

9

Some elected officials are taking note. Recently,

Congress considered restoring full judicial review of agency

action. On January 12, 2017, the House of Representatives

passed The Regulatory Accountability Act of 2017, which, if

passed by the Senate and signed into law, would prevent

courts from deferring to certain agency determinations and

instead require review of those determinations for “abuse of

agency discretion.” H.R. 5, 115th Cong. § 107(c)-(d) (2017)

(proposing amendments to 5 U.S.C. § 706).

12