## Facts

- Cassandra Woods worked as a substance-abuse counselor for START Treatment & Recovery Centers, Inc.
- A key job duty was drafting and timely filing notes for each counseling session.
- START asserted Woods repeatedly failed to meet note-keeping requirements and received performance warnings and probation.
- Woods suffered severe anemia and was hospitalized multiple times; her absences were treated as unpaid FMLA leave.
- Woods requested additional FMLA leave around these hospitalizations, and some requests were denied.
- START terminated Woods approximately three weeks after she returned from a hospitalization.
- Woods alleged START interfered with her FMLA rights and retaliated against her for taking FMLA-protected leave; START maintained the termination was solely for poor performance.

## Issues

1. For an FMLA retaliation theory brought under 29 U.S.C. § 2615(a)(1), must the employee prove but-for causation, or is it sufficient to show FMLA leave was a motivating (negative) factor under 29 C.F.R. § 825.220(c)?
2. Did the district court abuse its discretion and unfairly prejudice Woods by permitting and framing adverse inferences from her invocation of the Fifth Amendment at deposition?

## Decision

- The court held Woods’s retaliation theory was grounded in § 2615(a)(1) and required a motivating-factor (negative-factor) causation standard, not but-for causation.
- The court concluded 29 C.F.R. § 825.220(c) reasonably interprets § 2615(a)(1) and is entitled to Chevron deference.
- The court held the district court exceeded its discretion in admitting and permitting adverse inferences from Woods’s Fifth Amendment invocation as framed in the jury instructions.
- The judgment for START was vacated and the case remanded for further proceedings.

## Legal Principles

- FMLA claims alleging an employer used FMLA leave as a negative factor in an employment decision fall within § 2615(a)(1)’s prohibition on interference with the exercise of FMLA rights.
- Under 29 C.F.R. § 825.220(c), an employer may not consider taking FMLA leave as a negative factor in employment actions.
- For retaliation theories of this type under § 2615(a)(1), the employee need show only that FMLA leave was a motivating factor in the adverse action; the employee need not prove the leave was the but-for cause.
- In civil cases, adverse inferences from a party’s Fifth Amendment invocation may be permitted, but the trial court must ensure the scope and presentation do not unfairly prejudice the party or usurp the jury’s role.

## Conclusion

The Second Circuit vacated a defense verdict in an FMLA case, holding that a motivating-factor standard governs retaliation theories premised on § 2615(a)(1) and that the trial court’s but-for instruction and its handling of Fifth Amendment adverse inferences were erroneous and prejudicial, requiring a remand.


Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158 (2d Cir. 2017)