Background
Comcast Cable Communications Management, L.L.C. terminated Duy Dihn Do in January 2023. Do sued Comcast, 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 dismissing the Title VII claim. His second amended complaint therefore included only the Section 1981 and FMLA claims. The district court later denied his request for leave to add a cause of action for witness retaliation under Title VII and the Americans with Disabilities Act, then granted Comcast summary judgment and entered final judgment in its favor.
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, and his reply brief confirmed that he was relying on Title VII. The court declined to address that theory because Do had not raised it in the district court and had voluntarily dismissed his Title VII claim.
Do did not directly address his Section 1981 claim or explain how his Title VII argument related to it, and he did not mention his FMLA claim. The court consequently held that he had forfeited appellate review of both claims.
Key Takeaways
- An appellate court generally will not consider a theory that was not raised in the district court.
- A litigant cannot obtain appellate review of a claim that the litigant voluntarily dismissed below.
- Claims not adequately addressed in an appellant’s briefing are forfeited.
Why It Matters
The decision underscores that an appellant must challenge the claims actually preserved and decided in the district court. Arguments directed solely to an abandoned claim do not preserve appellate review of distinct statutory claims that remain in the case.
For employment litigants, the opinion also highlights the importance of separately briefing each cause of action and expressly connecting the appellate argument to the governing statute and district-court ruling.