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By Thomas Paschos & Associates
Haddonfield, New Jersey

In Egan v. Delaware Port Authority, 851 F.3d 263 (3d. Cir (Pa.) March 21, 2017), Plaintiff, Egan, worked for the Port Authority as a Projects Manager for Special Projects from 2008 through 2012 In March 2012, Egan was transferred on special assignment to the Engineering Department. Egan suffered from migraine headaches and claimed that the frequency of his migraines increased with his transfer to the Engineering Department. When he began experiencing migraines, he requested intermittent FMLA leave.  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 (along with another employee).

Egan filed a complaint alleging violations of the ADEA, ADA, and FMLA. At trial, plaintiff did not present any direct evidence that his use of leave motivated the employer’s termination decision. Nonetheless, at the close of trial, the plaintiff requested that a “mixed-motive instruction” be given to the jury. This instruction would allow the jury to find for the plaintiff if it determined the employer relied at all on plaintiff’s leave when making the termination decision — even if there was another, lawful reason for the decision. The district court refused to issue such an instruction because there was no direct evidence the employer’s decision was motivated, even in part, by the plaintiff’s use of leave. After the jury returned a verdict for the defense, the plaintiff appealed.

The Third Circuit reversed holding that a plaintiff “does not need to prove that invoking FMLA rights was the sole or most important factor” motivating the adverse action. The employee needs to show only “that his or her use of FMLA leave was a ‘negative factor’ in the employer’s adverse employment action.”

The Court went on to hold that, to be entitled to the mixed-motive instruction, the plaintiff “was not required to produce direct evidence” that his use of leave was a negative factor. Instead, such an instruction was warranted if there was any evidence “from which a reasonable jury could conclude that … [the plaintiff’s] use of FMLA leave was a negative factor in the employment decision” — even if that evidence was circumstantial.”

The Court’s decision was precedential because it examined for the first time whether U.S. Department of Labor’s regulations interpreting the FMLA “[embody] a permissible construction of the FMLA” that conforms with the U.S. Supreme Court’s Chevron v. Natural Resources Defense Council decision establishing the standard for granting deference to a government agency's interpretation of a statute it administers. The panel deferred to the Chevron standard because the FMLA does not specifically provide for a retaliation claim.

In a concurring opinion, Judge Kent A. Jordan agreed with the panel’s ultimate judgment, but criticized Chevron, as well as Auer v. Robbins, 519 U.S. at 462, 117 S.Ct. 905 (1997) stating that the deference prescribed "erodes the role of the judiciary, it also diminishes the role of Congress" by allowing agencies to make the law when the laws are unclear.