Argued: February 23, 2017
from the United States District Court for the Eastern
District of New York No. 13-cv-4719 - Ann M. Donnelly, Judge.
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?
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
K. Hassan, Queens Village, New York, for Plaintiff-Appellant.
M. Pohl, New York, New York, for Defendant-Appellee.
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 Plaintiff-Appellant.
Before: Kearse, Hall, and Chin, Circuit Judges.
jury finds against Woods, but it was wrongly instructed on
the law, can its verdict still stand? In this case, our
answer is no.
Cassandra Woods appeals a final judgment of the United States
District Court for the Eastern District of New York (Ann M.
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.
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.
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).
is a nonprofit that operates eight clinics providing
treatment services to about 3, 000 narcotic-addicted patients
each day. Cassandra Woods 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.
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.
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.
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, 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.
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.
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.
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 hospitaliza-tion 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.
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.
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.
the close of discovery, the district court ruled on a number
of pre-trial 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.
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 ...