Joseph Egan v. Delaware River Port Authority
851 F.3d 263
| 3rd Cir. | 2017Background
- Egan worked for the Delaware River Port Authority (DRPA) from 2008–2012; after a 2012 reassignment he developed increased migraines and obtained intermittent FMLA leave.
- While on leave the Port Authority eliminated economic-development functions, deemed Egan’s temporary reassignment complete, and terminated him in October 2012.
- Egan sued under the ADEA, ADA, and for FMLA retaliation; a jury returned verdicts for the Port Authority.
- At trial the District Court denied Egan’s request for a mixed-motive jury instruction on his FMLA claim, ruling such an instruction was not warranted and required direct evidence of retaliation.
- The District Court also excluded testimony by co-worker Mark Green recounting a partially overheard conversation between Egan and his supervisor as potentially misleading under FRE 403.
- The Third Circuit affirmed exclusion of Green’s testimony but vacated and remanded the FMLA verdict, holding (1) the DOL regulation permitting mixed-motive FMLA claims is entitled to Chevron deference, and (2) direct evidence is not required to obtain a mixed-motive instruction under the FMLA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of mixed-motive instruction for FMLA retaliation | Mixed-motive instruction should be given because DRPA considered Egan’s FMLA leave as a negative factor | Mixed-motive instruction inappropriate; FMLA retaliation requires but-for causation or direct evidence | Mixed-motive instruction is available: DOL regulation §825.220(c) is a permissible Chevron construction allowing mixed-motive liability |
| Evidentiary threshold for mixed-motive instruction | No requirement to produce direct evidence; circumstantial evidence suffices | Direct evidence required to trigger mixed-motive instruction | Direct evidence not required; Desert Palace principle applies so circumstantial evidence may suffice if a reasonable juror could find FMLA use was a negative factor |
| Validity of DOL regulation defining retaliation under FMLA | Regulation reasonably interprets §2615(a)(1) to prohibit using FMLA leave as a negative factor | Regulation is inconsistent with FMLA and Supreme Court causation decisions (Gross, Nassar) | Regulation is a reasonable construction of the FMLA and not inconsistent with Gross/Nassar; entitled to Chevron deference |
| Exclusion of Green’s partially-overheard testimony under FRE 403 | Testimony was probative of DRPA’s motivation and should be admitted | Testimony was incomplete and would mislead jury; exclusion proper under FRE 403 | District Court did not abuse discretion in excluding Green’s testimony; exclusion upheld as non-reversible error |
Key Cases Cited
- Chevron v. Natural Resources Defense Council, 467 U.S. 837 (Sup. Ct.) (agency interpretations of ambiguous statutes entitled to deference)
- Desert Palace, Inc. v. Costa, 539 U.S. 90 (Sup. Ct.) (direct evidence not required for mixed-motive Title VII instruction)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (Sup. Ct.) (ADEA requires but-for causation absent statutory language to the contrary)
- University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (Sup. Ct.) (Title VII retaliation requires but-for causation)
- Auer v. Robbins, 519 U.S. 452 (Sup. Ct.) (deference to agencies’ interpretation of their own regulations; discussed in concurrence)
- Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294 (3d Cir.) (third circuit application of §825.220(c) and mixed-motive framework under FMLA)
- Bachelder v. American Airlines, Inc., 259 F.3d 1112 (9th Cir.) (holding DOL regulation treating use of FMLA as a negative factor is a reasonable interpretation)