Thursday, December 22, 2016

Discrimination verdict is upheld as 2d Cir. rejects jury instruction challenge

This case will be of interest only to lawyers who try cases in federal court. The Second Circuit applies a few interesting rules that can make or break the appeal for those of us unlucky enough to lose at trial.

The case is McFadden v. County of Monroe, a summary order decided on December 6. Losing at trial is awful, no matter what side you're on. Think about what it takes for a case to go to trial. The case proceeds to discovery for six months to a year, followed by motion practice, when each side tries to convince the judge either that you have a great case (plaintiff's argument) or there is no case at all and a jury trial would be a waste of time (defendant's argument). If the case cannot settle (most cases settle prior to trial) it means the parties have dug into their positions such that any settlement offer or demand is regarded as an insult and the other side can go to hell. In this context, hell is trial, where eight strangers sit in judgment of your clients. After a week of testimony and trial madness, the jury reaches a verdict. The losing side picks itself off the floor and looks for a way to bring an appeal.

Most jury verdicts are essentially unreviewable on appeal unless the lawyer can argue that the trial court did something wrong that denied you a fair trial. One way to do that is to challenge the jury instructions on appeal. A bad jury instruction can go a long way toward a meritorious appeal. But even those arguments can lose. That's what happened here.

This is an employment discrimination case. The jury ruled against the plaintiff, who relied on the Cat's Paw theory of liability. Cat's Paw is a judge-made doctrine that says if the decisionmaker is a nice guy who happened to rely on the recommendation of a racist or sexist supervisor in terminating your employment, you can win the case because the racist or sexist supervisor tainted the process. Judges like Cat's Paw cases because it allows them to drop a footnote telling us about the Aesop's Fable from which the Cat's Paw language derives. It has something to do with a monkey, chestnuts, a fire and a cat.

Plaintiff argues that he was denied a fair trial because the trial court did not charge the jury on Cat's Paw. He also argues that the court should have told the jury that a retaliation plaintiff can win his case with proof of "a convincing mosaic of circumstantial evidence that would support the inference that retaliatory animus was at work."

Let's look at the mosaic argument. This language comes straight from a Seventh Circuit case, Smith v. Bray, 681 F.3d 888 (7th Cir. 2012). The "mosaic" theory of discrimination proof has turned up in Second Circuit cases, as well. It's another way of saying the plaintiff can win the case with bits and pieces of circumstantial evidence that together make out a mosaic of discrimination. But the mosaic language is useful only for resolving summary judgment motions, where the trial judge decides if the plaintiff has enough evidence to win the case. "Mosaic" is not a legal standard. For that reason, the Seventh Circuit said in the Smith case that any judge who mentions "mosaic" in the jury charge will probably be reversed on appeal. Since the trial court in McFadden's case did tell the jury he can win the case on circumstantial evidence, the jury charge was OK.

Equally interesting, at least for the trial lawyers, is why the Second Circuit (Katzmann, Winter and Calabresi) rejects the Cat's Paw argument. Yes, Cat's Paw language can go into the jury charge. But it was not reversible error for the trial court to omit that language from the jury charge. Since McFadden did not object to the jury charge during the trial, he can only win the appeal if the omission was "plain error," which is another way of saying the trial judge totally blew it. The trial court did not blow it in this case because the Second Circuit had neither accepted nor rejected the Cat's Paw approach when the trial took place. Since plain error only exists when the the trial court's ruling was contrary to law at the time of the ruling, McFadden cannot win the appeal on this basis. Which means the verdict stands.

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