In Egan v. Delaware River Port Authority, No. 16-1471 (3d Cir. Mar. 21, 2017), plaintiff sued his employer alleging, among other things, retaliation in violation of the Family and Medical Leave Act (FMLA).  At trial, plaintiff requested that the jury be instructed on a “mixed-motive” theory of retaliation; the district court denied the request, ruling that a mixed-motive instruction was not available in the FMLA context and, in any event, plaintiff had failed to proffer any direct evidence of retaliation.  On appeal, the Third Circuit reversed.  Although the FMLA does not specifically provide for retaliation claims, the court looked to the Department of Labor’s (DOL) regulation stating that the FMLA prohibits an employer from retaliating against an employee for having exercised FMLA rights, and that “employers cannot use the taking of FMLA leave as a negative factor in employment actions.”  29 C.F.R. § 825.220(c).  Applying the Chevron test, the court concluded that the DOL’s regulation is a reasonable interpretation of the FMLA.  The court further held that, consistent with this regulation, an employee does not need to prove that invoking FMLA rights was the sole or even the most important factor upon which the employer acted, so long as it was “a negative factor” in the adverse employment action.  Thus, an employee may bring an FMLA retaliation claim under a mixed-motive theory.  In addition, direct evidence is not required under a mixed-motive theory of liability; an employee need only proffer evidence – direct or circumstantial – from which a reasonable jury could conclude that the employee’s use of FMLA leave was a negative factor in the employment decision at issue.