Appellate Court decisions can be frustrating.  Every once in a while, instead of deciding the merits of the matter, the court will reject an appeal because a party did not "preserve" the issue at the lower courts through a proper protest. 

That’s what happened in Mokonnen v. Pro Park, Inc. (download here)  from the

The Second Circuit Court of Appeals released an unpublished decision earlier this week that should give employment law practitioners (and judges) some pause as they go to trial on discrimination claims.  It should serve as a cautionary tale about the use of certain language in jury instructions and it provides some guidance as to where the court might