Argued: January 12, 2017
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
Michael J. Salmanson, Esq. [ARGUED] Scott B. Goldshaw, Esq.
Salmanson Goldshaw, P.C. Counsel for Appellant
Goldberg, Esq. [ARGUED] United States Department of Labor
Counsel for Amicus Appellant
Zachary R. Davis, Esq. [ARGUED] Danielle M. Dwyer, Esq.
Stevens & Lee Counsel for Appellee
Before: SMITH, Chief Judge, JORDAN and SHWARTZ, Circuit
SHWARTZ, Circuit Judge.
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.
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.
Egan's ADA claim, because the Court acted within its
discretion in excluding the testimony of Egan's co-
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.
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
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.
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 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.
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.
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
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.
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.
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 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 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.
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.
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.
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
Id. at 842-43. The question of whether Congress has
spoken on the question at issue is known as Chevron
step one. If we 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
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).
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).
statute does not specifically provide for a retaliation
claim. 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 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.
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).
empowered the DOL to "prescribe such regulations as are
necessary to carry out" the FMLA. 29 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).
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. 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 ...