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

______________

Before: SMITH, Chief Judge, JORDAN and SHWARTZ, 

Circuit Judges. 

(Filed: March 21, 2017)
2

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

______________

SHWARTZ, Circuit Judge.
3

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 coworkers. 

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 mixedmotive 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-
4

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 
5

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—
6

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 
7

Instructions 10.1.3 and 10.1.2, respectively embodying the 

pretext and mixed-motive theories for proving 

discrimination.1 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. 

 

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) (mixedmotive 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).
8

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. 
9

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 
10

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). 
11

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. 
12

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 
13

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. 
14

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 
15

“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 
16

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 disparatetreatment 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.
17

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 antiretaliation 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 
18

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 
19

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 mixedmotive 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 
20

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 mixedmotive 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 
21

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 mixedmotive 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 
22

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”).
23

“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?
24

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.
25

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 
26

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 
27

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.
1

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 
2

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, 
3

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 
4

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.”). 
5

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). 
6

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 
7

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 
8

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 energyproducing 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”).
9

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 
10

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 mixedmotive 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.)
11

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.
12

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).