Woods v. Start Treatment & Recovery Ctrs., Inc.

• Citation: 864 F.3d 158
• Decision Date: 19 July 2017
• Docket Number: August Term, 2016,No. 16-1318-cv,16-1318-cv
• Parties: Cassandra WOODS, Plaintiff-Appellant, Tina Hinton, Plaintiff, v. START TREATMENT & RECOVERY CENTERS, INC., Defendant-Appellee, Addiction Research and Treatment Corporation, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

864 F.3d 158

Cassandra WOODS, Plaintiff-Appellant,Tina Hinton, Plaintiff,

v. START TREATMENT & RECOVERY CENTERS, INC., Defendant-Appellee,Addiction Research and Treatment Corporation, Defendant.

No. 16-1318-cv

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: February 23, 2017

Decided: July 19, 2017

Abdul K. Hassan , Queens Village, New York, for Plaintiff-Appellant.

David M. Pohl , New York, New York, for Defendant-Appellee.

Rachel 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.

Hall, Circuit Judge:

If a jury finds against Woods, but it was wrongly instructed on the law, can its verdict still stand? In this case, our answer is no.

Plaintiff-Appellant 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.

Woods 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.

I

Because 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).

START 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.

In her 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.

Woods 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.

Enhanced 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 de-spite verbal and/or written warnings." J. App'x 879–80.

Probation 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. App'x 889.

Woods 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.

In 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 hospitalization 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.

In 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.

Woods 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.

After 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.

The 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 *2 (emphases omitted). The parties were instructed to submit proposed jury instructions that comported with the district court's rulings.

At trial, START put on evidence of Woods invoking the Fifth Amendment. During Woods's cross-examination, defense counsel reviewed the deposition transcript with Woods, reading each of the pertinent questions and Woods's responses. See J. App'x 333–38.¹ Woods confirmed the accuracy of the deposition transcript and acknowledged that she had asserted the Fifth Amendment in response to the questions. Based on that evidence, the district court gave the following instruction to the jury at the close of evidence:

The plaintiff invoked her Fifth Amendment right against self-incrimination, which she was permitted to do in this case. However, from the plaintiff's invocation of the Fifth Amendment, you may draw certain conclusions but are not required to do so. Specifically, you may infer that the plaintiff's answers at her deposition, if she had not refused to answer, would have been "yes" to the questions asked, if she had not invoked the Fifth Amendment. You may, but are not required to, draw these inferences against the plaintiff when you are evaluating her credibility, and you can give these inferences whatever weight that you wish or, if you choose to give it no weight, you can do that.

J. App'x 642–43.

The district court also instructed the jury on the ultimate questions before it. One of those questions was whether START retaliated against Woods for exercising her...