Unreported / Non-Citable
Background
Comcast terminated Duy Dihn Do in January 2023. Do sued, alleging sex discrimination and retaliation under Title VII, race- and ethnicity-based discrimination and retaliation under 42 U.S.C. § 1981, and interference and retaliation under the Family and Medical Leave Act.
After Comcast moved for partial dismissal, Do stated that he had no objection to dismissal of the Title VII claim. His second amended complaint included only the Section 1981 and FMLA claims. The district court later denied his request to amend again to add claims for witness retaliation under Title VII and the Americans with Disabilities Act, then granted Comcast summary judgment on the remaining claims.
The Court’s Holding
The Fifth Circuit affirmed. On appeal, Do argued that he had established a prima facie retaliation case under Title VII’s participation clause, but the court declined to consider a claim that had not been raised below and had been voluntarily dismissed.
Do did not directly address his Section 1981 claim or explain how his Title VII theory related to it, and he did not mention his FMLA claim. The court therefore held that he had forfeited appellate review of the claims that remained in the operative complaint.
Key Takeaways
- An appellate court generally will not consider a claim that was not raised in the district court, particularly one the plaintiff voluntarily allowed to be dismissed.
- An appellant forfeits review by failing to brief the claims actually resolved in the judgment under appeal.
- A Title VII retaliation argument does not preserve a separate Section 1981 claim without an explanation connecting the two theories.
Why It Matters
The decision underscores that appellate briefing must address the live claims and rulings presented by the record. An appellant cannot obtain reversal by focusing on a previously dismissed theory while leaving the claims decided at summary judgment substantively unchallenged.