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 Connecticut Appellate Court, in a decision that will be officially released later this month.  At issue: what are the questions a jury should answer in an employment discrimination matter.

The federal courts covering Connecticut that have looked at the issue for federal discrimination claims have pretty much rejected the use of what’s known as a "McDonnell Douglas" balancing test.  That test, created by the U.S. Supreme Court, is supposed to be used to help judges decide some cases. Instead, some courts started using it to instruct the jury.  However, federal courts have disavowed that in recent years, finding the test confusing for juries.

In Connecticut, state court judges have an advantage with model jury instructions that are written to provide some guidance to them in an area of law that might be unfamiliar to them.  Among them, is an instruction on state discrimination law that explicitly rejects that analysis:  

The charge does not refer to the prima facie or burden shifting aspects of McDonnell Douglas because whether or not a plaintiff has established a prima facie case is an issue for the court and many federal courts have found that the burden shifting language has no place in a jury charge.  

Which is why the Appellate Court case here is so surprising and frustrating. In the background of the case, the decision suggests that the jury was given several questions to answer on the discrimination question.  In fact, the plaintiff contended on appeal that the jury interrogatories did a poor job of instructing the jury on the McDonnell Douglas concepts.

But alas, the Appellate Court didn’t address that issue opting to reject the appeal on procedural grounds.  (And, in fairness to the judge, the current model jury instructions are effective January 1, 2008.)

Thus, we’ll have to wait for another day for some additional appellate court pronouncements.

For employers going to trial, presentation of evidence is obviously important. But overlooking the "details" like jury instructions or interrogatories can lead to disappointing results as well.