672 F. App'x 81
2d Cir.2016Background
- Craig McFadden, a supervising child care worker at Monroe County Children’s Center, was terminated in 2008 after alleged violations of a post-incident “Safety Plan” that limited his being alone with residents.
- McFadden sued County of Monroe and Center director Michael Marinan alleging hostile work environment and retaliation under 42 U.S.C. § 1981 and Title VII.
- Prior to trial McFadden stipulated to dismissal of claims against the Center; at close of evidence the district court granted a Rule 50 motion dismissing the County from the § 1981 hostile-work-environment claim and dismissing Marinan from the § 1981 retaliation claim.
- A jury returned a verdict for defendants; McFadden appealed, challenging the Rule 50 rulings and jury instructions (including claims about “cat’s paw” liability and the “convincing mosaic” theory).
- The Second Circuit reviewed the Rule 50 dismissal de novo and reviewed jury-instruction challenges for plain error because McFadden failed to preserve specific objections under Rule 51.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County liable under § 1981 for hostile work environment | McFadden argued County should be liable for hostile work environment | County argued no municipal policy or custom evidence linking County to alleged conduct | Held: Affirmed dismissal — plaintiff produced no evidence of municipal policy/custom (Patterson governs) |
| Whether Marinan liable under § 1981 for retaliation | McFadden argued Marinan was personally involved or otherwise liable (including via cat’s paw) for retaliatory termination | Defendants argued Marinan lacked authority to terminate and no evidence he acted with retaliatory intent | Held: Affirmed dismissal — no evidence Marinan acted with intent to retaliate; no need to reach cat’s paw argument |
| Whether district court erred by failing to instruct on cat’s paw liability | McFadden argued jury should have been instructed on cat’s paw theory imputing subordinate’s motive | Defendants argued no basis for instruction; court had discretion | Held: No plain error — Second Circuit had not accepted/rejected cat’s paw at time of charge, so omission not plainly erroneous |
| Whether district court should have given “convincing mosaic” instruction | McFadden sought instruction that circumstantial mosaic could establish causation/motive | Defendants argued existing instructions on circumstantial evidence were sufficient and "convincing mosaic" is not a legal test | Held: No error — court properly instructed that circumstantial evidence is valid; “convincing mosaic” is not required and Seventh Circuit framing is inapplicable |
Key Cases Cited
- Patterson v. Cty. of Oneida, 375 F.3d 206 (2d Cir.) (municipal liability under § 1981 requires policy or custom)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir.) (individual liability requires personal involvement in deprivation)
- Lizardo v. Denny’s, Inc., 270 F.3d 94 (2d Cir.) (retaliation requires causal connection between protected activity and adverse action)
- Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267 (2d Cir.) (discussion of cat’s paw theory in Second Circuit context)
- Cromwell Assocs. v. Oliver Cromwell Owners, Inc., 941 F.2d 107 (2d Cir.) (appellate courts may affirm on any adequate legal ground)
- Smith v. Bray, 681 F.3d 888 (7th Cir.) (discussion of circumstantial "convincing mosaic" theory)