16-1318-cv 

Woods v. START Treatment & Recovery Ctrs. 

In the 

United States Court of Appeals 

For the Second Circuit

August Term, 2016 

Argued: February 23, 2017 

Decided: July 19, 2017 

Docket No. 16-1318-cv 

CASSANDRA WOODS, 

 Plaintiff-Appellant,

TINA HINTON, 

 Plaintiff, 

–v.– 

START TREATMENT & RECOVERY CENTERS, INC., 

 Defendant-Appellee,

ADDICTION RESEARCH AND TREATMENT CORPORATION, 

Defendant.

Appeal from the United States District Court 

for the Eastern District of New York 

No. 13-cv-4719 – Ann M. Donnelly, Judge. 

Before: 

KEARSE, HALL, and CHIN, Circuit Judges. 
2 

Plaintiff Cassandra Woods lost a jury trial on claims that she was fired 

for exercising her rights under the Family and Medical Leave Act. Her appeal 

presents two principal questions. First, what is the appropriate causation 

standard for FMLA retaliation claims? Second, was Woods unduly prejudiced 

by the admission of adverse inferences based on her invocation of the Fifth 

Amendment at her deposition? 

The district court (Ann M. Donnelly, Judge) instructed the jury that it 

must apply “but for” causation to Woods’s claims and that it was permitted to 

infer that Woods would have answered “yes” to the relevant questions at her 

deposition. We hold that FMLA retaliation claims of the sort Woods brings in 

this case require a “motivating factor” causation standard and that Woods 

was unduly prejudiced by the admission of adverse inferences. 

 

VACATED AND REMANDED.

ABDUL K. HASSAN, Queens Village, New 

York, for Plaintiff-Appellant. 

DAVID M. POHL, New York, New York, for Defendant-Appellee. 

RACHEL GOLDBERG, Senior Attorney (M. Patricia Smith, Solicitor of Labor, Jennifer S. 

Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Paul L. 

Frieden, Counsel for Appellate Litigation, on 

the brief), for R. Alexander Acosta, United 

States Secretary of Labor, Washington, D.C., 

as amicus curiae in support of PlaintiffAppellant. 

HALL, Circuit Judge: 

 If a jury finds against Woods, but it was wrongly instructed on the law, 

can its verdict still stand? In this case, our answer is no. 

 Plaintiff-Appellant Cassandra Woods appeals a final judgment of the 

United States District Court for the Eastern District of New York (Ann M. 
3 

Donnelly, Judge) following a jury trial in which Woods lost on all of her 

claims under the Family and Medical Leave Act (“FMLA”). Woods was fired 

from her job at START Treatment and Recovery Centers (“START”) in 2012. 

She says that she was terminated in retaliation for taking leave under the 

FMLA; START says it was because of her poor performance. The jury appears 

to have agreed with START. 

 Woods lodges two main arguments on appeal. First, she contends that 

the district court wrongly instructed the jury that “but for” causation applies 

to FMLA retaliation claims. Second, Woods argues that she suffered impermissible prejudice when the district court allowed the jury to draw adverse 

inferences based on her invocation of the Fifth Amendment at her deposition. 

We agree on both counts. Accordingly, the judgment of the district court is 

vacated, and the case is remanded for further proceedings not inconsistent 

with this opinion. 

I 

 Because Woods appeals a jury verdict in favor of START, we view the 

facts in the light most favorable to START. See Kosmynka v. Polaris Indus., 

Inc., 462 F.3d 74, 77 (2d Cir. 2006); see also Jacques v. DiMarzio, Inc., 386 

F.3d 192, 195 (2d Cir. 2004) (applying this standard even where the district 

court provided improper jury instruction). 

START is a nonprofit that operates eight clinics providing treatment 

services to about 3,000 narcotic-addicted patients each day. Cassandra Woods 
4 

began work as a substance abuse counselor at START’s “Kaleidoscope” Clinic 

in 2007, and her tenure ended on May 18, 2012. The reason for her departure 

is the subject of this suit. 

 In her role as a substance abuse counselor, Woods was responsible for 

counseling around fifty patients, usually in thirty-minute sessions. After each 

such session, START counselors spend fifteen minutes or so writing a patient 

“note,” which is important for START both to maintain its state certification 

and to bill Medicaid and other insurance companies. In 2011, START implemented a new, state-mandated note system known as “APG.” APG is more 

complex than the prior note-keeping method, and many counselors struggled 

to adapt; fifteen percent of counselors were terminated for failing to comply 

with APG requirements. 

 Woods also struggled with APG. Although her July 2010 and July 2011 

performance reviews were generally satisfactory, START’s assessment of her 

took a turn for the worse in March 2011. START determined that Woods was 

failing to achieve “required outcomes” in “compliance” and “documentation.” 

J. App’x 874. START offered Woods “enhanced training.” Id.

 Enhanced training, however, did not seem to do the trick. Woods received warning memos documenting performance issues in April and June 

2011. In August 2011, Woods appeared to right the ship, and she received a 

pay raise for her efforts, but thereafter her performance again began to slip. 

She received three more warning memos in November 2011, December 2011, 
5 

and February 2012. The February 2012 memo recorded that Woods had a 

twenty-eight percent completion rate for her notes. The typical completion 

rate among other counselors was ninety to ninety-five percent. By March 

2012, Woods was put on ninety-day probation for “her on-going failure to perform [her] job duties as directed and/or within designated time frames despite verbal and/or written warnings.” J. App’x 879–80. 

 Probation did not appear to have remedied Woods’s performance issues 

either. Her deadline for catching up on a backlog of patient notes was extended by memo twice—on April 4, 2012 and April 18, 2012. On May 10, 2012, 

Rodney Julian, Clinical Director at the Kaleidoscope Clinic and Woods’s direct supervisor, recommended terminating Woods to Dr. Robert Sage, the 

Senior Vice President for the Division of Human Services. Dr. Sage fired 

Woods on May 17, 2012, citing Woods’s failure to maintain up-to-date patient 

notes and “on-going failure to perform [her] job duties.” J. App’x 889. 

 Woods tells a different story about the reason for her termination. She 

suffers from severe anemia and other conditions and on several occasions requested medical leave under the FMLA. The exercise of her FMLA rights, in 

Woods’s view, is why START fired her. Woods’s account begins in February 

2011, when she approached Madeleine Miller, an employee in START’s human resources department, and requested FMLA leave. Shortly thereafter, 

Woods cancelled the request. Woods says that she did so because Rodney Julian asked her to; Julian denies that such a conversation ever took place. 
6 

 In August 2011, Woods was hospitalized for six days while being treated for her anemia. Although START does not appear to have given Woods a 

full explication of her FMLA rights, it did acknowledge that the hospitalization period was protected. Some months later, while Woods was on probation, 

she again attempted to take FMLA leave. According to Woods’s version of the 

encounter, she was told that because she was on probation, she could not take 

FMLA leave. Renee Sumpter, the human resources contact to whom Woods 

made the request, says that she told Woods no such thing. The next day, 

Woods visited her doctor but declined hospitalization because she was afraid 

of losing her job. START did nothing at that time. 

 In April 2012, still while Woods was on probation, she was hospitalized 

for another seven days. START acknowledges that this time too was protected under the FMLA. Woods returned to work on April 28, 2012. Twelve days 

later, Julian recommended firing Woods, and she was terminated a week later. 

 Woods sued, bringing claims for, inter alia, interference and retaliation 

under the FMLA. In discovery, Woods sat for a deposition. She was asked 

about a prior incident in which she was accused of some wrongdoing. In relevant part, Woods was asked a series of questions about whether she had been 

accused of criminal conduct, of lying, of fabrication, and of fraud. See J. App’x 

53–54. Woods invoked her Fifth Amendment right against self-incrimination 

in response to each of questions. 
7 

After the close of discovery, the district court ruled on a number of pretrial matters. START filed a motion in limine seeking an adverse inference 

instruction based on Woods’s invocation of the Fifth Amendment in response 

to several questions asked during her deposition. Woods opposed the motion, 

arguing that the deposition questions were hearsay, not reflective of credibility, and inadmissible under the Federal Rules of Evidence. The district court 

granted START’s motion, ruling that the jurors would be permitted to presume that Woods would have answered the deposition questions in the affirmative. The district court noted that Woods had preserved her objections. 

J. App’x 89. 

The district court also resolved START’s motion for a ruling on whether Woods was required to show that the exercise of her FMLA rights was the 

“but for” cause of her termination in order to prevail on the retaliation claim. 

See Woods v. START Treatment & Recovery Ctrs., Inc., No. 13-cv-4719, 2016 

WL 590458 (E.D.N.Y. Feb. 11, 2016). After analyzing the FMLA’s text and 

Supreme Court precedent, the district court concluded that Woods did indeed 

need to demonstrate that her FMLA leave was the “but for” cause of her termination, rather than a mere “motivating factor” in the decision, as Woods 

had argued. Id. at *2 (emphases omitted). The parties were instructed to 

submit proposed jury instructions that comported with the district court’s 

rulings. 
8 

 At trial, START put on evidence of Woods invoking the Fifth Amendment. During Woods’s cross-examination, defense counsel reviewed the deposition transcript with Woods, reading each of the pertinent questions and 

Woods’s responses. See J. App’x 333–38.1 Woods confirmed the accuracy of 

the deposition transcript and acknowledged that she had asserted the Fifth 

Amendment in response to the questions. Based on that evidence, the district 

court gave the following instruction to the jury at the close of evidence: 

The plaintiff invoked her Fifth Amendment right 

against self-incrimination, which she was permitted to do in this case. However, from the plaintiff’s 

invocation of the Fifth Amendment, you may draw 

certain conclusions but are not required to do so. 

Specifically, you may infer that the plaintiff’s answers at her deposition, if she had not refused to 

answer, would have been “yes” to the questions 

asked, if she had not invoked the Fifth Amendment. You may, but are not required to, draw these 

inferences against the plaintiff when you are evaluating her credibility, and you can give these inferences whatever weight that you wish or, if you 

choose to give it no weight, you can do that. 

J. App’x 642–43. 

 The district court also instructed the jury on the ultimate questions before it. One of those questions was whether START retaliated against Woods 

 

1 For example, defense counsel asked Woods: “do you have knowledge of a City of New York 

investigation concerning you that was being conducted in or about October of 2011?” J. App’x 

334. Woods invoked the Fifth Amendment. About that same investigation, defense counsel 

asked more questions, such as: “In that case were you accused of some kind of immoral conduct?” Id. at 335. “[W]ere you accused of lying.” Id. “[W]ere you accused of fabricating 

events?” Id. at 336. “[W]ere you accused of submitted false documentation?” Id. “[W]ere you 

accused of misrepresenting facts to the government?” Id. at 337. “[W]ere you accused of 

fraud.” Id. To all these questions, Woods invoked the Fifth Amendment. 
9 

for exercising her rights under the FMLA. On the retaliation issue, the district court gave the following instruction: 

To succeed on her claim of retaliation, the plaintiff 

must prove by a preponderance of the evidence that 

the defendant terminated her for taking FMLA 

leave. For you to determine that the plaintiff was 

terminated for taking FMLA leave, she must prove 

that the defendant would not have terminated her 

if she had not taken FMLA leave, but everything 

else had been the same. 

The defendant has given nondiscriminatory reasons 

for its decision to terminate the plaintiff. The 

FMLA does not protect an employee from performance problems caused by the conditions for which 

the FMLA leave is taken. Under the FMLA, a person can be fired for poor performance, even if that 

poor performance is due to the same root cause as 

the need for the leave. To put that another way, if 

an employee’s work performance problems are related to the same elements that gave rise to the 

FMLA leave, then the employee can still be terminated based on her work performance problems regardless of the indirect causal link between the 

FMLA leave and the decision to terminate the employee. 

If the plaintiff has proved by a preponderance of 

the evidence that the defendant’s explanations for 

the termination are a pretext or an excuse for discrimination, you must find that the defendant violated the FMLA. 

J. App’x 652–53. 

 After all of the evidence was submitted and the district court instructed the jury on the applicable law, the jury deliberated for a short time and 

returned a complete defense verdict. Woods timely appealed. 
10 

II 

 Woods first challenges the district court’s jury instruction on the appropriate causation standard to be applied to her FMLA retaliation claims, 

that is, how the jury was to assess the role, if any, that Woods’s exercise of 

FMLA rights played in START’s decision to fire her. As it did below, START 

argues that Woods must prove that her exercise of FMLA rights was the “but 

for” cause of her termination. Woods counters that she must only show that 

her FMLA leave was used as a “negative factor” in START’s decision to fire 

her. 

“We review a claim of error in the district court’s jury instructions de 

novo, disturbing the district court’s judgment only if the appellant shows that 

the error was prejudicial in light of the charge as a whole.” Sheng v. 

M&TBank Corp., 848 F.3d 78, 86 (2d Cir. 2017) (quoting Turley v. IFG 

Lackawanna, Inc., 774 F.3d 140, 152–53 (2d Cir. 2014)). Jury instructions 

that mislead the jury as to the correct legal standard are erroneous, but we 

will not require a new trial unless the instructions, read as a whole, fail to 

“present[] the issues to the jury in a fair and evenhanded manner.” Id. (quoting Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012)). 

The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., provides 

broad protections to employees who need to take time away from work to deal 

with serious health conditions of the employee or her family. An employee 

has the right to return to the position she held before taking leave, or to an 
11 

“equivalent position with equivalent employment benefits, pay, and other 

terms and conditions of employment.” Id. § 2614(a)(1)(B). The FMLA also 

“creates a private right of action to seek both equitable relief and money 

damages against any employer (including a public agency) in any Federal or 

State court of competent jurisdiction should that employer interfere with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 

445 F.3d 161, 174 (2d Cir. 2006) (internal quotation marks omitted). 

 FMLA claims come in at least two varieties: interference and retaliation. See Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004) (per 

curiam). In a general sense, an employee brings an “interference” claim when 

her employer has prevented or otherwise impeded the employee’s ability to 

exercise rights under the FMLA. See Graziadio v. Culinary Inst. of Am., 817 

F.3d 415, 424 (2d Cir. 2016). “Retaliation” claims, on the other hand, involve 

an employee actually exercising her rights or opposing perceived unlawful 

conduct under the FMLA and then being subjected to some adverse employment action by the employer. See Potenza, 365 F.3d at 168. The two types of 

claims serve as ex ante and ex post protections for employees who seek to 

avail themselves of rights granted by the FMLA. 

 The first issue in this case presents two distinct, but related, legal 

questions that have yet to be resolved in this Circuit. First, in which provision of the FMLA are retaliation claims rooted? Second, what quantum of 

causation must a plaintiff prove between the exercise of FMLA rights and the 
12 

adverse employment action to hold an employer liable for retaliation? Our 

answer to the first question informs our answer to the second. We hold that 

FMLA retaliation claims of the sort Woods brings in this case are grounded in 

29 U.S.C. § 2615(a)(1) and a “motivating factor” causation standard applies to 

those claims. 

A 

 There is little question that given its broad salutary intent, the FMLA 

prohibits retaliation against employees who attempt to exercise their rights 

under the statute. Which statutory provision creates that protection against 

retaliation, however, is a subject of some dispute in the circuits. 

 Two possible statutory sources could support FMLA retaliation claims. 

The first contender is 29 U.S.C. § 2615(a)(1), which provides: 

It shall be unlawful for any employer to interfere 

with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this 

subchapter. 

Second is the following provision, § 2615(a)(2), which provides: 

It shall be unlawful for any employer to discharge 

or in any other manner discriminate against any 

individual for opposing any practice made unlawful 

by this subchapter. 

 The First Circuit finds a basis for FMLA retaliation claims in 

§ 2615(a)(1). See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4 (1st 

Cir. 1998) (concluding that retaliation for exercising FMLA rights “can be 

read into § 2615(a)(1): to discriminate against an employee for exercising his 
13 

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

non-retaliation claims . . . .”) (internal citation omitted). The Sixth Circuit assumes that § 2615(a)(2) provides the source for retaliation claims. See Bryant 

v. Dollar Gen. Corp., 538 F.3d 394, 400–02 (6th Cir. 2008). Other circuits 

point to a Department of Labor regulation, see Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) (citing 29 C.F.R. 

825.220(c)), and yet others look to a combination of all three, see Richardson 

v. Monitronics Int’l, Inc., 434 F.3d 327, 332, 334 (5th Cir. 2005). 

 We have in the past suggested that retaliation claims fall under 

§ 2615(a)(2). See Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir. 

2011). In Millea we observed that: 

The FMLA’s anti-retaliation provision has the 

same underlying purpose as Title VII—and almost 

identical wording. Compare 29 U.S.C. § 2615(a)(2) . 

. . with 42 U.S.C. § 2000e-3(a). 

Id. The underlying question in Millea, however, was unrelated to the statutory source of FMLA retaliation claims. Instead, we decided there that the 

standard for “materially adverse action” under Title VII (first announced in 

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)) 

applies to FMLA claims. See 658 F.3d at 164. Because the core question did 

not involve making a specific determination concerning the well from which 
14 

FMLA retaliation claims spring, we do not read Millea’s passing reference to 

§ 2615(a)(2) as controlling. 

 We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA 

leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) 

supports this conclusion. Firing an employee for having exercised her rights 

under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those 

rights. Indeed, FMLA rights have two parts—the right to take leave and the 

right to reinstatement, so terminating an employee who has taken leave is 

itself an outright denial of FMLA rights. 

 That this sort of retaliation claim falls under § 2615(a)(1) is also consistent with the statutory text of § 2615(a)(2). Section 2615(a)(2) prohibits 

adverse employment actions—“discharg[ing] or in any other manner discriminat[ing]”—against employees “for opposing any practice made unlawful by 

this subchapter.” Being fired for taking FMLA leave cannot easily be described as “opposing any practice made unlawful” by the FMLA. Instead, that 

adverse employment action in the face of a lawful exercise of FMLA rights 

fits comfortably within § 2615(a)(1)’s “interfere with, restrain, or deny” language. 

Labor Department rules also support this interpretation of the statute. 

The Department revised its rule at 29 C.F.R. 825.220(c) “to clarify that the 

prohibition against interference includes a prohibition against retaliation as 
15 

well as a prohibition against discrimination.” The Family and Medical Leave 

Act of 1993, 73 Fed. Reg. at 67,934, 67,986 (Nov. 17, 2008). The Labor Department further explained that “[a]lthough section 2615(a)(2) of the Act also 

may be read to bar retaliation, . . . the Department believes that section 

2615(a)(1) provides a clearer statutory basis for § 825.220(c)’s prohibition of 

discrimination and retaliation” for exercising FMLA rights. Id. We agree. 

B 

 Woods’s FMLA retaliation claim being actionable under § 2615(a)(1), 

the question becomes whether the district court correctly instructed the jury 

that it must apply a “but for” causation standard in determining whether 

START was liable for such retaliation. We conclude that the given instruction 

was erroneous. 

 In determining that a “but for” causation standard applied, the district 

court conducted a thorough analysis of the statutory language in § 2615(a)(2). 

Woods v. START Treatment & Recovery Ctrs., Inc., No. 13-cv-4719, 2016 WL 

590458, at *2–3 (E.D.N.Y. Feb. 11, 2016). Specifically, the district court concluded that § 2615(a)(2) contained language indicating Congress’s intent to 

create such a standard, especially in light of the Supreme Court’s analogous 

analyses in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) and 

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). We need not decide 

whether the district court correctly determined the causation standard for 
16 

claims under § 2615(a)(2), however, because, as we explained above, retaliation claims like Woods’s are instead rooted in § 2615(a)(1). 

 START’s argument on the appropriate causation standard largely 

tracks the district court’s analysis. It contends that the FMLA lacks “motivating factor” language and thus, under Nassar, the default “but for” causation 

standard applies. Woods, and the Department of Labor as amicus, on the 

other hand, urge us to give Chevron deference to the Department’s regulation 

at 29 C.F.R. 825.220(c), which they say compels a lesser causation standard. 

That regulation provides: 

The Act’s prohibition against interference prohibits 

an employer from discriminating or retaliating 

against an employee or prospective employee for 

having exercised or attempted to exercise FMLA 

rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits 

(other than health benefits), the same benefits 

would be required to be provided to an employee on 

unpaid FMLA leave. By the same token, employers 

cannot use the taking of FMLA leave as a negative 

factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA 

leave be counted under no fault attendance policies. 

29 C.F.R. 825.220(c) (emphasis added). 

Chevron deference is appropriate where Congress has delegated authority to an administrative agency to make rules carrying the force of law 

and that agency’s interpretation to which deference is to be given was promulgated in the exercise of that authority. Here, Congress delegated to the Secretary of Labor authority to “prescribe such regulations as are necessary to 
17 

carry out” the FMLA. 29 U.S.C. § 2654. The 825.220(c) regulation was promulgated pursuant to that delegation of authority. 

The first step of the Chevron analysis is determining whether the statute is ambiguous or silent on the specific question at issue. See Chevron 

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). Section 2615(a)(1) is silent as to any test for causation. It makes no mention of a 

motivating factor test, and unlike the statutes in Nassar and Gross, it lacks 

any indicia of Congress’s intent to create “but for” causation—words like “because” or “by reason of.” While the Supreme Court has said that Congress 

must indicate when it intends to depart from the default tort rule of “but for” 

causation, see Nassar, 133 S. Ct. at 2525, Congress has chosen to remain silent on the causation issue in § 2615(a)(1) and has instead delegated a statutory gap-filling function to the Secretary of Labor. Indeed, “express congressional authorizations to engage in the process of rulemaking” is “a very good 

indicator of delegation meriting Chevron treatment.” United States v. Mead 

Corp., 533 U.S. 218, 229 (2001). We thus proceed to Chevron step two. 

At step two, we ask whether the Labor Department’s interpretation of 

the statute is reasonable—both as a matter of statutory construction and as a 

matter of policy. See Chevron, 467 U.S. at 843–44. It is as to both. 

As for statutory interpretation, so long as the Labor Department’s interpretation is reasonable, we defer to it “whether or not it is the only possible interpretation or even the one a court might think best.” Holder v. Mar-
18 

tinez Gutierrez, 132 S. Ct. 2011, 2017 (2012); see Mugalli v. Ashcroft, 258 F.3d 

52, 55 (2d Cir. 2001) (“[I]t is not necessary that we conclude that the agency’s 

interpretation of the statute is the only permissible interpretation, nor that 

we believe it to be the best interpretation . . . .”) (quoting Michel v. INS, 206 

F.3d 253, 263 (2d Cir. 2010)). Given the sweeping scope of § 2615(a)(1)’s prohibition—“It shall be unlawful . . . to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right”—and the absence of any indication of a causation standard, the Labor Department reasonably construed 

§ 2615(a)(1) to prohibit using the exercise of FMLA rights at all in making 

employment decisions. 

The Labor Department’s interpretation is reasonable as a matter of 

policy. The rule was promulgated after notice-and-comment rulemaking, and 

it comports with the FMLA’s broad salutary purposes—namely, “to balance 

the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in 

preserving family integrity; [and] . . . to entitle employees to take reasonable 

leave for medical reasons, for the birth or adoption of a child, and for the care 

of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. 

§ 2601(b)(1)–(2). The rule is neither arbitrary nor capricious. Instead, it reflects the well-reasoned judgment of the executive officer charged with enforcing the rights granted to this country’s employees. 
19 

Accordingly, we defer to the Labor Department’s regulation implementing a “negative factor” causation standard for FMLA retaliation claims. 

The district court erred by instructing the jury otherwise. 

C 

 An erroneous jury instruction, however, does not necessarily entitle 

Woods to a new trial. “A jury verdict will be reversed only when an appellant 

can show that the instructions considered as a whole prejudiced [her].” Holzapfel v. Town of Newburgh, 145 F.3d 516, 521 (2d Cir. 1998). “[T]he party 

asserting error has the burden of demonstrating prejudice . . . .” Renz v. Grey 

Advert., 135 F.3d 217, 223 (2d Cir. 1997) (internal quotation marks omitted). 

“An error is harmless only if the court is convinced that [it] did not influence 

the jury’s verdict.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 

2000). 

 In Renz, we held that the district court’s erroneous failure to give a 

motivating factor instruction—and instead requiring but for causation under 

the Age Discrimination in Employment Act (“ADEA”)—“did not prejudice the 

plaintiff.” 135 F.3d at 223. We did so there because the evidence of the plaintiff’s poor performance was so overwhelming “that a correct charge on the 

plaintiff’s standard of proof in her ADEA claim would not have made a difference to the verdict.” Id. at 224. We cannot say the same here. 

 Although there is evidence from which a reasonable jury could conclude that Woods’s deficient performance served as the sole basis for her ter-
20 

mination, we are unable to conclude that that evidence is so overwhelming as 

to render the erroneous instruction harmless. That error, coupled with the 

erroneous admission of the adverse inferences against Woods described below, resulted in impermissible prejudice. 

III 

 We next consider Woods’s challenge to the admission of adverse inferences based on her invocation of the Fifth Amendment privilege against selfincrimination in her deposition. We review for abuse of discretion the district 

court’s admission into evidence of a witness’s invocation of the Fifth Amendment, Abascal v. Fleckenstein, 820 F.3d 561, 564 (2d Cir. 2016), and we review de novo the related jury instructions, United States v. Ford, 435 F.3d 

204, 209 (2d Cir. 2006). In evaluating whether the admission of certain evidence was erroneous, we consider the following relevant factors: “(1) whether 

the evidence bore on the most important issues in the case; (2) whether the 

evidence was simply cumulative or corroborative; (3) whether the evidence 

was used in summation; and (4) whether the appellee’s case was particularly 

strong.” Abascal, 820 F.3d at 567. The admission of the adverse inferences 

here resulted in prejudicial error. 

The district court gave the following instruction as part of its final 

charge to the jury: 

[F]rom the plaintiff’s invocation of the Fifth 

Amendment, you may draw certain conclusions but 

are not required to do so. Specifically, you may infer that the plaintiff’s answers at her deposition, if 
21 

she had not refused to answer, would have been 

“yes” to the questions asked, if she had not invoked 

the Fifth Amendment. You may, but are not required to, draw these inferences against the plaintiff when you are evaluating her credibility, and 

you can give these inferences whatever weight that 

you wish or, if you choose to give it no weight, you 

can do that. 

J. App’x 642–43. The instruction accurately states the law insofar as “the 

Fifth Amendment does not forbid adverse inferences against parties to civil 

actions when they refuse to testify in response to probative evidence offered 

against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such adverse 

inferences are appropriately admitted, however, only if they are relevant, reliable, and not unduly prejudicial. See Brink’s Inc. v. City of New York, 717 

F.2d 700, 710 (2d Cir. 1983). We conclude that the district court exceeded the 

bounds of its discretion in admitting and permitting the adverse inferences to 

be drawn here. 

 First, most of the questions in Woods’s deposition were merely whether 

Woods had been accused of something. Even assuming her answers would 

have been “yes,” accusations have little, if any, probative value because the 

innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not “impeach the integrity or impair the credibility of a witness.” 

Michelson v. United States, 335 U.S. 469, 482 (1948). Thus, Woods suffered 

acute prejudice from the admission of adverse inferences based on her answers to those deposition questions and from the court’s related instructions. 
22 

 Second, Woods suffered even harsher prejudice from the admission of 

an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of 

a conviction only when the crime is a felony or the court “can readily determine that establishing the elements of the crime” required proving a “dishonest act or false statement.” The district court here failed to consider whether 

the requirements of Rule 609(a) were met. The results of a Rule 609(a) analysis are especially important in this case because the record is unclear as to 

what, if any, crime Woods was convicted of. Indeed, there was only a reference to “disorderly conduct,” which is not necessarily “dishonest,” much less 

“immoral” or “unethical.” An adverse inference based upon Woods declining 

to answer that deposition question is of questionable probative value on the 

issue of her credibility. 

 Third, the danger of unfair prejudice is high when a jury is told that a 

witness declined to answer a question by invoking the Fifth Amendment; the 

implication is, at best, that the witness refused to answer because she had 

something to hide. We tolerate some danger of prejudice from such inferences 

in civil cases, unless it substantially outweighs the probative value of those 

inferences. See Brink’s Inc., 717 F.2d at 710. Here, the way in which Woods’s 

Fifth Amendment invocation was raised and later argued at closing elevated 

the prejudice to an intolerable level. Woods’s Fifth Amendment invocation 
23 

was repeatedly emphasized—defense counsel raised it during Woods’s crossexamination, the district court instructed the jury on it, and defense counsel 

argued it during his summation. Although defense counsel attempted to 

moderate this line of argument, see J. App’x 632 (“I am not hanging my hat 

on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that 

the entire case hinged on Woods’s credibility, defense counsel told the jury 

“you are permitted in this case to infer that Ms. Woods was the subject of a 

government grand jury investigation, was accused of fraud, lying, fabricating 

events, and misrepresenting facts to the government and was then convicted 

of a crime.” Id. Defense counsel’s statement was consistent with the district 

court’s instruction, but the inferences that the jury was permitted to draw did 

not necessarily mean anything with respect to Woods’s credibility or character for truthfulness. 

 Apart from allowing such vigorous argument on this point, the district court erred by failing to engage in the required Rule 403 analysis. See 

Brink’s, Inc., 717 F.2d at 710. In our view, the unfair prejudice Woods suffered substantially outweighed the minimal, if not immaterial, probative value of Woods’s Fifth Amendment invocation. Accordingly, it was error for the 

district court to admit those invocations into evidence and to instruct the jury 

as to what it was allowed to infer from them. 
24 

IV 

We have considered Woods’s remaining arguments and find them to be 

without merit. Nevertheless, the incorrect jury instruction on the causation 

standard for Woods’s FMLA retaliation claim and the admission of adverse 

inferences based on Woods’s invocation of her Fifth Amendment privilege 

during the course of her deposition generated prejudicial error. Accordingly, 

the judgment of the district court is VACATED and the case is REMANDED

for further proceedings not inconsistent with this opinion.