Invited Error and Unpreserved Challenges Bar Appellate Reversal of FMLA “Motivating-Factor” Instructions and Alleged Verdict Inconsistencies

Introduction

Ramadei v. Radiall USA, Inc. (2d Cir. Mar. 19, 2026) is a nonprecedential summary order affirming a jury verdict for plaintiff Gary T. Ramadei against his former employer, Radiall USA, Inc. Ramadei alleged, among other claims, that Radiall terminated him in retaliation for taking medical leave protected by the Family and Medical Leave Act (FMLA).

After the district court denied Radiall’s summary-judgment motion on the FMLA retaliation claim, the case went to trial and resulted in a plaintiff’s verdict and judgment of $770,006.06 plus post-judgment interest. On appeal, Radiall principally argued that the district court (i) used the wrong causation standard for FMLA retaliation, (ii) accepted an irreconcilably inconsistent verdict, and (iii) admitted improper testimony.

Summary of the Opinion

The Second Circuit affirmed across the board. It held that Radiall could not obtain relief on the causation standard because it invited the “motivating factor” instruction and, in any event, did not preserve any challenge to existing circuit law. The court also held Radiall waived any inconsistency challenge by failing to object before the jury was discharged, and further found no “fundamental error.” Finally, even assuming the challenged testimony was admitted in error, Radiall failed to show the alleged evidentiary errors were not harmless.

Analysis

1) Precedents Cited

A. FMLA retaliation causation and administrative deference

  • Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158 (2d Cir. 2017): The panel treated Woods as the governing circuit decision adopting a “motivating factor” causation standard for FMLA retaliation claims. Radiall’s appellate strategy was to argue that Woods should be overturned, but the panel never reached that merits question because of preservation barriers (invited error, forfeiture, and the lack of plain error).
  • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Radiall argued that Woods rested on Chevron-style deference and thus was undermined by Loper Bright. The panel did not decide whether Loper Bright would change the analysis, emphasizing instead that Radiall did not timely raise the point in the district court or even in post-trial motions.

B. “Default” but-for causation in federal employment statutes

  • Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (ADEA); University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation); Comcast Corp. v. National Ass'n of African American-Owned Media, 589 U.S. 327 (2020) (§ 1981): Radiall invoked these decisions for the proposition that but-for causation is the default absent express statutory language. The Second Circuit characterized the application of these authorities to FMLA retaliation as an unsettled legal question (because those cases construed different statutes and neither the Supreme Court nor the Second Circuit had applied the full trio to FMLA retaliation).

C. Preservation doctrines: invited error, waiver, forfeiture, and standards of review

  • United States v. Bastian, 770 F.3d 212 (2d Cir. 2014): Cited for the “invited error” principle: a party cannot complain on appeal about an error it requested. This citation did substantial work—Radiall had proposed “motivating factor” instructions, cutting off relief.
  • Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d Cir. 2001), and Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d 216 (2d Cir. 2020): These cases supplied the proposition that unpreserved objections to verdict forms and civil jury instructions are reviewed for plain error, and that civil plain-error reversal is undertaken with “extreme caution.”
  • Keeling v. Hars, 809 F.3d 43 (2d Cir. 2015): Provided the four-part civil plain-error framework (error, plainness, effect on substantial rights, and effect on the fairness/integrity/public reputation of proceedings).
  • Fabri v. United Techs. Int'l, Inc., 387 F.3d 109 (2d Cir. 2004): Central to the panel’s “unsettled law” reasoning: on plain-error review, the Second Circuit “typically will not” find plain error where the operative legal question is unsettled.

D. Verdict inconsistency and timing of objections

  • Kosmynka v. Polaris Indus., Inc., 462 F.3d 74 (2d Cir. 2006): The rule that inconsistency objections are waived if not raised before the jury is excused.
  • Perks v. Town of Huntington, 234 F. App'x 8 (2d Cir. 2007), and Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34 (2d Cir. 2015): Used to reject the attempt to repackage an instruction/verdict-sheet problem as “inconsistency” after the fact. Anderson Group also supported the view that, absent binding law on the alleged inconsistency, any error was not “fundamental.”

E. Evidentiary rulings, harmless error, and the appellant’s burden

  • Warren v. Pataki, 823 F.3d 125 (2d Cir. 2016), and Meloff v. N.Y. Life Ins. Co., 240 F.3d 138 (2d Cir. 2001): These cases supplied the deferential abuse-of-discretion review and “wide latitude” afforded trial judges in evidentiary decisions.
  • Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012), and Cameron v. City of New York, 598 F.3d 50 (2d Cir. 2010): Cited for the proposition that evidentiary error warrants a new trial only if it affects a substantial right and substantially influences the jury; the harmless-error test is whether the court has “fair assurance” the evidence did not substantially influence the verdict.
  • Tesser v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 370 F.3d 314 (2d Cir. 2004): The panel relied on Tesser to reject speculation about prejudice and to emphasize the appellant’s burden to show the error was not harmless and likely swayed the factfinder in a material way.

2) Legal Reasoning

A. The court avoided a merits reexamination of FMLA causation by enforcing preservation rules

Radiall’s lead merits argument was doctrinal: after Loper Bright Enterprises v. Raimondo and in light of Gross, Nassar, and Comcast, the Second Circuit should abandon Woods and require but-for causation in FMLA retaliation. The panel declined to reach that question because Radiall’s litigation conduct foreclosed it:

  • Invited error (affirmative waiver): Radiall requested a “motivating factor” instruction in its proposed jury instructions, so it could not later attack that same standard on appeal. This is a strict, party-accountability move: appellate review is not a “redo” for tactical choices at trial.
  • Forfeiture and plain-error limits: Even apart from invited error, Radiall failed to raise the issue when it mattered—before the district court. The panel emphasized timing: Gross, Nassar, and Comcast predated the lawsuit, and Loper Bright predated Radiall’s post-trial motions. On the resulting plain-error review, the court held Radiall could not show “plain” error because the legal question is unsettled, particularly given existing circuit law in Woods.

Functionally, the decision illustrates how preservation doctrines can be outcome-determinative: even potentially significant developments in administrative-law and causation doctrine will not be entertained when not timely pressed, especially where the appellant previously endorsed the very instruction it challenges.

B. The “inconsistent verdict” argument failed at the threshold (timing) and on the backstop (no fundamental error)

The jury found (Question 1) retaliation—termination motivated at least in part by FMLA leave—and also found (Question 5) that Radiall acted in good faith with reasonable grounds to believe it was not violating the FMLA. Radiall argued these answers cannot logically coexist and that the good-faith finding bound the court.

The panel’s response proceeded in two steps:

  • Waiver: Under Kosmynka v. Polaris Indus., Inc., a party must object to inconsistency before the jury is discharged. Radiall did not, so the objection was waived.
  • No fundamental error: Relying on Perks v. Town of Huntington and Anderson Grp., LLC v. City of Saratoga Springs, the court held that even if inconsistency existed, it was not “fundamental” given the lack of binding precedent on (i) whether such findings are irreconcilable in an FMLA case and (ii) whether a good-faith finding is or can be advisory. The panel also treated Radiall’s complaint as, in reality, a belated attack on the verdict sheet/instructions—another issue that must be raised before deliberations.

C. Evidentiary issues: assumed error, no prejudice shown

Radiall challenged testimony from (1) Joanna Petrowski (another employee’s leave experience) and (2) Ramadei’s testimony about William Moleski’s alleged leave/insurance situation. The Second Circuit took a conservative appellate approach: it assumed without deciding there was error, but held Radiall failed to carry its burden to show the evidence was prejudicial rather than harmless under Warren v. Pataki, Lore v. City of Syracuse, Cameron v. City of New York, and Tesser.

The court characterized Radiall’s prejudice arguments as “conjecture” (e.g., that the testimony “likely” took on “extraordinary significance” and led to “rough justice”), which is insufficient to obtain a new trial.

3) Impact

Although the order is expressly nonprecedential, it is practically instructive in three ways:

  • FMLA causation challenges must be preserved early and consistently: Parties seeking to revisit Woods v. START Treatment & Recovery Centers, Inc. must raise the issue in the district court, in proposed instructions/verdict forms, and (if relevant) in post-trial motions, especially when arguing that Loper Bright Enterprises v. Raimondo changes the analytic baseline.
  • Verdict-inconsistency objections are perishable: If counsel suspects inconsistency, the objection must be raised before the jury is excused, or it is typically lost under Kosmynka v. Polaris Indus., Inc..
  • On evidentiary error, appellate courts demand a concrete showing of prejudice: The decision underscores that even potentially inflammatory testimony will not justify a new trial absent a developed, non-speculative demonstration that the verdict was likely affected.

Complex Concepts Simplified

  • “Motivating factor” vs. “but-for” causation: “Motivating factor” means the protected activity (here, taking FMLA leave) was one reason among others for the decision. “But-for” means the adverse action would not have happened absent the protected activity.
  • Invited error: If a party asks the court to do something (like give a particular jury instruction), it generally cannot complain on appeal that doing so was error.
  • Waiver vs. forfeiture: Waiver is the intentional relinquishment of an argument (including by inviting the action). Forfeiture is failure to raise an argument in time. Forfeited issues may be reviewed only for “plain error,” a difficult standard to meet in civil cases.
  • Plain error (civil): A narrow safety valve reserved for clear, obvious mistakes that likely changed the outcome and seriously undermine the fairness or integrity of the proceeding—rarely applied where the law is unsettled.
  • Harmless error: Even if the trial judge made a mistake admitting evidence, the verdict stands unless the appellant shows the mistake likely mattered to the jury’s decision.

Conclusion

Ramadei v. Radiall USA, Inc. affirms a substantial FMLA retaliation judgment largely by applying appellate gatekeeping rules: invited error, waiver for failure to object before jury discharge, strict limits on civil plain-error review where the law is unsettled, and a demanding harmless-error requirement for evidentiary challenges. The decision signals that any attempt to displace the Second Circuit’s Woods “motivating factor” framework—whether based on Loper Bright or on the causation line of Gross, Nassar, and Comcast—must be preserved meticulously in the trial court to be heard on appeal.