case on for argument today is woods versus addiction research hassan are you going to argue first yes your own knowledge you have a different preference no no no absolutely that's fine we'll wait a minute or two while the courtroom players are that way we can concentrate on what you lot are going to be be addressing a but for causation issue so i would like to start with a sledgehammer that was used to smash my client several times during the trial and that is the adverse inferences that work iran is fully admitted into evidence as set and investigations of my kline it is well settled that mayor accusations or investigations or even a rest are inadmissible to impeach credibility that's not set forth just by the so proper in included in numerous district court decisions because this is you comes up a lot in the context of arrests its act accusations are so far off people don't even try to get accusations in by themselves i mean really if i'm right this was an  held and brings and other cases and the ninth circuit and every other court as is looked at the use of adverse inferences from invocation of the fifth amendment that like every other piece of evidence they must pass the test  miss ability on fear prejudice and so on so there is no exception to the rules of evidence or invocations of the fifth to the extent that there is an exception that exception should weigh in favor of  testimony by asked about the alleged conduct in question no she was no and i think that's a key point because the defendants probably know that the inference is well a lot worse than reality and they wanted to use the inferences and not get into accused of lying were you accuse you or agree well or maybe you would but that if she were asked did you engage in that conduct and she took the fifth then the adverse inference why did she take the fifth on whether she had been accused i mean what is i'm not sure that it was a proper indication of the fifth on whether she had been accused and might be a proper indication on whether she did the conduct yes your honor as to whether she was accused i think when we when you decide to invoke the fifth you have to err on the side of caution if there is an ongoing proceeding you can't beat that sort in in the middle of a deposition whether this will ultimately not be need are we didn't with any objections at all and this is another critical point because when you have questions or acts in a deposition as you know the deposition you can access questions that seek inadmissible evidence in a deposition but those questions will not be permitted a trial so you have to that's why i don't understand why the fifth was asked to these questions but in any event what she was convicted of something at some point it was resolved as a disorderly conduct the prior conviction well it wouldn't pass as a prior conviction because it's dark and my question is whether there was discussion about whether it fit within rule six on honoring the federal of evidence not because the defendant didn't want there the defendants wanted the adverse inference because that was the damage that was the hammer over the head look at the adverse inference is they're pretty pretty bad and they were not only bad they were case and the entire case started on credibility defense counsel said told the jury that this these inferences are important because the plaintiff's entire case turns on credibility and what he was saying to the jury is if you believe her she wins if you believe us we win so the entire thing revolved around credibility and it used to strategically in opening statements during cross examination it was the subject of jury instructions and use it  credibility and the harm cannot be disputed the district court itself made a finding after the trial that one of the reasons to justify the jury verdict is because of these adverse inferences look at a record at eighty nine fifty five to nine fifty six so you have the judge saying it was critical to the jury's decision you have defense counsel telling the jury to this is important for them to reach a decision and then you have the strategic use throughout the trial of this evidence as to the most important and critical issue the on the tail end of a cold and it's tough stage i represent the secretary of labor were appearing as a mckesson support of plaintiff appellant and we're here strictly on a family mixed motive question whether mixed of analysis is available under the a family and i'd like to start with interference and tell you well it really comes into play in retaliation claims but retaliat clearing retaliation for exercising your family rights really falls under the statutory prohibition against interference and so in a way that leads right into what i wanted to start with which is the clearly that is prohibiting retaliation for opposing an unlawful conduct and when an employee takes a from l a leave and is retaliated against for doing that they haven't opposed anything so it's doesn't fall under a two but the broad prohibition against interference with an employees a from the labor rights in a one does encompass that kind of retaliation and that's what we have said in our regulation at eight twenty five to twenty at which we instruct courts to look to the language of the statute to determine what type of retaliation is prohibited and what the conservation is what causation is required and here when you look to the language of the a family you see first of all that this type of retaliation isn't even expressly included it does prohibit interference you know and importantly the statute here also gives the authority gives the department authority to promulgate rules to enact the snatch to well i guess i think it's actually truly more of a gap in that it's not that the eighty two i don't think is ambiguous per say in one interference could be seen as ambiguous in that what does interference mean exactly what isn't compassed within that and there's clearly a gap in that that type of retaliation that we're talking about for exercising your family rights is is not included and can  require but for causation but in any event that's not that that's not the applicable provision a one the interference provision is the applicable provision and i'd like to  deference or generally speaking other cases out there that say you give chevron deference to regulations that film gaps as opposed to clarify ambiguities yes sure the chevron deference is is for ambiguities for certainly but yes also for where the work for gap filling and to me this is a quintessential gap filling because this kind of retaliation has to be prohibited and it's function it's essential to the functioning of the that this case is not like gross announcer where the statutory language clearly compelled about four causation standard here you don't have that kind of statutory language you have a gap you have congressional authorization to engage in role making which we have done and it's consistent with the policy of the f m l a which is to create and to give employees the ability to take it from l a leave and have their job be protected have job security and if an employee i'm sorry for an employer can't take their family leave into account as a motive it's motivating them to do to impose an adverse action on that employee well that's clearly  undermining the employees leave in title mitt which is the essential function of the f m l a which is to provide job protected leave we have to reach this issue we determine the facts that the jury had  she was discharged it well as many some courts have done you could say well under either standard it what fails or doesn't fail by i would no ppened at trial because i think overall that's the most important thing here today but i want to start with mr hasan's point about the fifth amendment he it's presented as if these are mere accusations that is simply not true await the questions were were you accused of repeatedly that was where you were accused of these things and even if the answer is yes watch the program to value an accusation understood  mere accusations to be entirely correct but another question was in connection with this were you convicted of any immoral or unethical conduct so by few trying to impeach with a conviction well that's partially partially yes would you not have to look at well your honor because i believe not only was it at miscible as non hearsay because of the conviction but i believe also this court has the power within the context of a harmless error review to say well it was analysis there is not a discussion of it on the record you know that this is a problem now i don't believe it is what so ever your honor and here's why i believe that a problem whatsoever  the reason is even if mr assad is trying to paint a picture as if this entire case came down to fifteen then invocations and that could not be further from the truth yes you're making a harmless error analysis but are you conceding that there was are no i'm invocations is not based in reality this jury witnessed ms woods get caught in lies no less than five times i caught her in five lies so i even told the jury mr son makes  summation i just said fifth and then fifth and then and over and over again it's quite the opposite i told the jury quote i'm not hanging my hat on the fifth and then an invocation and i said to the jury i have demonstrated that she has lied in this case that's more important she's lied in this six thirty two as you're some nation and it certainly looks to me like you are relying very heavily on the the the inferences well your honor i believe that's exactly where i say i'm not hanging my hat on these inferences and that comes after a very long i gave it a very long winded summation i admit and in that long winded summation i went through all of the lies in this case the jury heard her lie about facts in this case so i was attempting to downplay the fifth a minute by saying i don't need to hang my hat on that that's my quote i want you to look at the lies in this case so now if your honor if you don't mind i'd like to get to what those were and i think a good place to start would be what happened here at this trial she claims she was fired for taking a family leave start put on four witnesses credible witnesses who testified in no uncertain terms that ms woods would was fired soley for performance problems after countless second chances there was no other contemporaneous memos over a year long period detailing these issues the jury had them and i urge the panel to to review them they go through in detail the missed deadlines the extensions she was given start work with her for over a  year she was given a raise in hopes of a motivate her but after that her performance slipped to the point where she had a twenty eight percent completion rate she was the lowest performing counsellor at her clinic her colleagues were up at around ninety or ninety five percent again this is an refuted undisputed testimony that she was the worst performing counsellor at the clinic dr sage who was her not her immediate supervisor but a supervisor told the jurors how she was with how fifteen percent of other employees fifteen percent of her colleagues were terminated for the same reason and after the same process he also testified quote there was no other reason to terminate her so this has nothing to do with f m l a or any medical issue that was occurring at that time she was terminated for performance issues this was the cause that testimony was not even challenged not cross examined it's undisputed that if she just would have caught up with her work by may seventeenth she just would have caught up substantially not even entirely but just gotten close that she would not have been fired all of her supervisors said that she would have caught up she wouldn't have been fired so f emily leave there's no evidence she failed to reduce any evidence that was even considered as a factor now let's get to the lies that she told the jury in which she was caught number one she lied about an alleged march twenty twelfth denial of f and then later leave i impeached her testimony on that and this is all in the brief so i'm not going to go into all the details i impeached her testimony with her prior deposition and her complaint which showed that this whole story was impossible as a matter of physics couldn't happen number two she lied about a february twent eleventh incident where she said she was discouraged from taking a leave again i impeached her in front of the jury with her prior inconsistent deposition testimony and she was forced to admit to the jury that testimony she just gave wasn't accurate this all happened right in front of the jury number three she lied about her belief in her own claims and her pretrial deposition she admitted that she was not even sure whether she still believed she was fired for taking f m elaine leave and not for her documentation problems at trial she denied making that admission so i showed the jury your deposition testimony where she clearly did make that admission this wasn't even difficult for me pointing out these inconsistencies in the jury witnesses that's three number four she lied about a particular credential being a job requirement the case x c a s a c certified alcohol substance abuse counselor at a pretrial deposition she admitted that it that obtaining it was a job she admitted being told that it was a job requirement and in fact it was and she could have been fired for only that reason start didn't name that as a reason because this was not something that was high on the list of performance problems are much higher but this was a fireable offense at trial she tried to claim it was not a requirement and so i'm pete with her admission from a deposition where she acknowledged that it was and also the jury saw numerous memos that she received over a year saying you have to get the case act if you don't you can be terminated and she never got it number five she lied to the jury about a conversation she claims to have had with her supervisor on april thirtieth two thousand and twelve in which after she came home from me back to work from a five day athame leave she says he told her oh don't do any more work you're going to be fired it's over i showed her emotion this is something she didn't bring up in a deposition at all and so i impeach her by omission in the jury was left to conclude that she had made this whole story up for trial and that that's exactly what happened and so these are not factual disputes the way mr sun is characterizing them that he's just lie is that she got caught five times so her credibility was absolutely decimated in this trial no doubt about it but she did it to herself she did it by getting caught lying five times the fifth amendment stuff it merely corroborated what the jury saw right in front of it that this is a witness who has a hard time with the truth so the idea that this was the hammer that did or did her in that is that is absolutely not true i say the same thing to you that i say to the jury i am not hang my hat on a fifth and then an invocation so i can answer any more questions about the fifth amendment maybe go into us about why the but for jury charge or the absence of the month for jury charge is not a problem ok so ok so nasir is clear congress incorporates but for causation in any claim any federal statutory claim of workplace discrimination absent an indication to the contrary in the statute itself it's that simple that's you gree that there is some ambiguity in the statute absolutely not absolutely not section eight t bars retaliation for opposing any practice made unlawful section b bars will tell you because an individual participant paid in at the mill a proceeding there's only amp service somewhere else this court has acknowledged as have inferring that this cause of action arises under that provision the sixth circuit stated clearly the structure of the f m away itself and its legislative history strongly support interpret section twenty six fifteen eighty two as prohibiting retaliation against employees who use at the mill a leaf this court in the malaysia decision which i quote in my papers expressly identified section eight two as quote v f m l a's anti retaliation provision that has the same underlying purpose as title seven and almost identical why would anyone also pick up retaliation well as retaliation would be an interference well you could certainly take that view and i would say that even if you do not her is still clear that absent an indication in section a one  retaliation provision and so i understand i agree with you that the language may not be crystal clear but every quarter in agreement on that yes the deal is correct there is some language where courts also say that anyone could have an impact here puts it creates an arbitrary distinction here in terms of what causation standard would be applied i guess it wouldn't matter which one you are under almost you could want to include that on his part form the other is motivating factor and then it would matter that's correct but i have briefs in my papers and there's a tenth circuit case that invalidated an f m l a provision for drawing an arbitrary distinction between claims where it was unwarranted that would be a purely arbitrary distinction so a plaintiff comes into court and fired for taking a family leave and that's motivating factor these are that there is no reason analysis for that distinction and this court's jurisprudence i cited in my papers requires the deal well they have a reason analysis for why that distinction makes sense there is no reason analysis you won't hear one and the reason is that there is no reason behind that distinction it's arbitrary the deal well is attempting to create confusion here they're attempting to ignore the expressed retaliation provisions saying that all falls under the interference provision because that creates some kind of confusion and ambiguity and that's what gets you chevron deference but after nasr the crystal clear statement that absence an indication to the contrary in the statute itself the claim requires but for causation in light of that there is no ambiguity here this is crystal clear and i should say the sixth circuit this is very important here the well points out of six brief but pay attention to what consul said about the witnesses when he said all the witnesses testified that the plaintiff would not have been fired if he had met the deadline or even caught up on the april eighteenth memorandum all the performance problems here there everywhere it came down to the april eighteenth memorandum that was the responsibility she was charged with completing my me second and all of the defense witnesses testified a trial if she had met the deadline or even caught up not even reasonable extension not just an extension equal to the time that she was out on leave if you look at the regulation a twenty ninth reason so i think why is that extension unreasonable well the jury didn't get to make a determination of what it was reasonable or not and hit let me tell you why our longer extension may be reasonable in this case when you come back to work especially for from an illness a lot of times you need time to reintegrate the conditions may april could that all been the result of being out for seven days noir on a but remember in april eighth the memorandum they gave for certain tasks to complete by may second which dave felt she could finish by may second and she couldn't finish them because for half the time she was arguing there is lots of evidence in the record that she was unable to do the job apart from half a mile i leave so with me what evidence is there that she was  at her rights were interfering with the she was retaliated against because she took because they did not extend the deadline for her to complete the two week assignment that she was given which is the the but for causation to me is a fairly simple even though complicated one in some respects the supreme court in nassau when it was presented to the agency interpretation what did he do it performed deference analysis now in that case it f requirements for skidmore deference were satisfied but in this case counsel wants you to just apply some magical default rule and ignore the deference analysis or to skip the second step of it before the fall of the high court in nasser