Appellate Review Is Limited to Preserved Theories of Harm in Title VII Cases

Introduction

In Blaine v. Mystere Living & Healthcare, Inc., No. 24-3121 (10th Cir. Nov. 14, 2025), a Tenth Circuit panel (Judges Matheson, Kelly, and Bacharach; opinion by Judge Bacharach) affirmed summary judgment against an employee who, after resigning from an assisted living facility and receiving pay for her two-week notice period, sued under Title VII for sex discrimination and retaliation. The Equal Employment Opportunity Commission participated as amicus curiae.

The case presents a straightforward but consequential procedural holding: an appellant may not secure reversal on a theory of harm not raised in the district court. More specifically, after the district court rejected the plaintiff’s constructive-discharge theory as insufficiently severe, the plaintiff abandoned constructive discharge on appeal and asserted a new harm—the employer’s refusal to let her work the remainder of her notice period, which she said deprived her of the ability to say goodbye to coworkers and residents. The Tenth Circuit declined to consider this new theory, underscoring the preservation requirement and the narrow confines of plain-error review in this context.

Parties and posture:

Plaintiff–Appellant: Jennifer Blaine, former employee at Wellsville Health & Rehab (a facility associated with Mystere Living & Healthcare, Inc.).
Defendant–Appellee: Mystere Living & Healthcare, Inc.
Claims below: Title VII sex discrimination, retaliation, and hostile work environment (the latter abandoned on appeal).
District court: Granted summary judgment to the employer, holding there was no constructive discharge and no actionable harm.
Appeal: Plaintiff reframed the harm theory, conceding voluntary resignation and full pay for the notice period but alleging injury from not being allowed to work the remaining eleven days to say goodbye.

Summary of the Opinion

The Tenth Circuit affirmed summary judgment for the employer. The core reasoning is procedural:

The plaintiff shifted her theory of harm on appeal. In the district court, she claimed constructive discharge; on appeal, she expressly disclaimed constructive discharge and instead contended she suffered harm because she could not work through her notice to say goodbye.
Because this goodbye-based harm theory was not presented to the district court in response to summary judgment, the appellate court would not consider it. The court cited its settled rule limiting appellate review of summary judgment to arguments made below.
Even entertaining plain-error review arguendo, the panel held any error was not “plain” (i.e., obvious) because the district court had no duty to comb uncited parts of the record or invent a new harm theory the plaintiff never presented.
Result: Affirmed. The district court “couldn’t have erred by misanalyzing an allegation that was never made.”

The panel did not decide whether an employer’s decision to excuse an employee from working a paid notice period or the loss of the opportunity to say goodbye can constitute actionable “harm” under Title VII. The holding rests entirely on preservation and the insufficiency of the plaintiff’s new appellate theory.

Analysis

Precedents Cited and Their Role

Murphy v. City of Tulsa, 950 F.3d 641, 645 (10th Cir. 2019) — Establishes that appellate review of summary judgment is generally confined to arguments presented to the district court. This was the linchpin: because Ms. Blaine did not present the “goodbye” harm theory below, the panel declined to reverse on that basis.
Bishop v. Smith, 760 F.3d 1070, 1095 n.17 (10th Cir. 2014) — Defines “plain error” as error that is clear or obvious. The panel invoked Bishop to explain that even if the district court erred, the error could not be “plain” where the plaintiff never raised the goodbye theory or directed the court to supporting record citations.
United States v. Faunce, 66 F.4th 1244, 1247 n.2 (10th Cir. 2023) — The panel assumed arguendo that an appellant may seek plain-error review for the first time in a reply brief, but did not resolve that procedural point because it did not affect the outcome.
United States v. Portillo-Uranga, 28 F.4th 168, 177 (10th Cir. 2022) — Notes the typical rule that unpreserved arguments are considered only if the appellant invokes plain-error review in the opening brief. This undercut the plaintiff’s late pivot.
United States v. Paycer, No. 23-5120, 2025 WL 2652831, at *4 (10th Cir. Sept. 16, 2025) (to be published) — Clarifies a narrow path: an appellant’s meaningful assertion in the opening brief that an issue was preserved can support the court’s discretion to consider a plain-error argument first raised in reply. The panel explained that Ms. Blaine made no such assertion concerning her goodbye-based theory.
United States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015) — Similar to Paycer, it recognizes that a reply brief can suffice for plain-error argument where the opening brief contended the issue was preserved. Again, Blaine failed that prerequisite.
Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1273 (10th Cir. 2020) — Demonstrates waiver when a party waits until the reply to raise plain-error, reinforcing the court’s refusal to entertain Blaine’s new harm theory introduced at that late stage.

Together, these precedents reinforce a consistent Tenth Circuit doctrine: parties must present their theories—including specific articulations of harm—at summary judgment, and late-breaking recharacterizations on appeal are out of bounds, with only a very narrow and rarely satisfied plain-error escape hatch.

Legal Reasoning

Framing of harm below versus on appeal. In the district court, Ms. Blaine’s claimed injury was constructive discharge arising from her employer’s handling of alleged sexual harassment. The district court found the conditions were not severe enough to amount to constructive discharge and granted summary judgment on both the discrimination and retaliation claims for failure to show the requisite harm.
Abandonment and substitution of harm theory. On appeal, Ms. Blaine abandoned constructive discharge entirely, conceding that she voluntarily resigned, gave two weeks’ notice, and was fully paid for that period. She contended instead that the employer’s refusal to let her work the remaining eleven days harmed her by depriving her of the opportunity to say goodbye to coworkers and residents. She also floated a “termination” characterization, but acknowledged receipt of full pay and benefits for the notice period, effectively tying the “termination” harm to the goodbye theory.
Preservation doctrine forecloses the new theory. The court relied on Murphy to hold that it would not reverse a grant of summary judgment based on a theory never presented to the district court. The “goodbye” theory was missing from Blaine’s summary judgment briefing; thus the district court had no occasion to consider whether such harm could satisfy Title VII’s harm requirement for discrimination or retaliation.
Plain-error review does not rescue the claim. Assuming solely for argument’s sake that plain-error review could be invoked for the first time in a reply brief (Faunce), the panel held any error was not “plain” under Bishop because:
- There was no argument below identifying the goodbye theory as harm;
- The district court would have had to “sift through uncited record pages” and invent that theory for the plaintiff; and
- Therefore, even if it would have been error not to recognize the theory sua sponte, such error would not be obvious.
The court also noted the typical requirement that plain-error be invoked in the opening brief (Portillo-Uranga) and the limited circumstances in which a reply-brief plain-error argument might be entertained (Paycer; Zander), circumstances not present here. Platt further illustrated the risk of waiver by delay.
No merits decision on what counts as Title VII “harm.” Importantly, the panel did not decide whether an employer’s excusing an employee from working a paid notice period, or the loss of a chance to say goodbye, can constitute an adverse employment action (for discrimination) or a materially adverse action (for retaliation). The affirmance rests squarely on procedural grounds.

Impact and Practical Significance

While labeled a nonprecedential order and judgment, the decision is citable for persuasive value and has immediate practical consequences for Title VII litigants and, more broadly, for civil appeals in the Tenth Circuit:

Preservation of harm theories is essential. Plaintiffs must articulate all viable theories of “harm” at summary judgment, tailored to each claim’s standard (e.g., adverse employment action for discrimination; materially adverse action for retaliation). Attempting to swap a constructive-discharge theory for a new intangible-harm theory on appeal will not be entertained.
Record citation obligations matter. District courts are not required to scour the record to construct unbriefed theories. Appellate arguments premised on uncited record material risk rejection, and any alleged error in failing to divine such theories will rarely be “plain.”
Narrow path for plain error in civil appeals. The panel underscores the stringent approach to late-raised arguments. Absent a meaningful opening-brief assertion that the issue was preserved, the court is unlikely to reach plain-error arguments unveiled only in a reply. Even then, a failure that turns on unraised theories and uncited materials will seldom be “obvious.”
Title VII practitioners: calibrate harm theories early. For discrimination claims, be prepared to show a tangible adverse employment action; for retaliation, a materially adverse action under Burlington Northern’s deterrence-based standard. If alternative conceptions of harm exist (e.g., economic, reputational, or non-pecuniary), they must be pleaded and argued in the summary judgment opposition with supporting evidence.
Employers’ early-release-with-pay policies. Although not decided here, the facts suggest that excusing an employee from serving a notice period while paying the employee for that period typically weakens claims of cognizable harm. Employers relying on such practices should still document the rationale and ensure non-retaliatory, non-discriminatory consistency.

Complex Concepts Simplified

Constructive discharge: A doctrine under which a resignation is treated as a termination if working conditions are so intolerable that a reasonable person would feel compelled to quit. It requires more severe conditions than a standard adverse action. The district court found no constructive discharge here; the plaintiff abandoned that theory on appeal.
Adverse employment action (discrimination): A significant change in employment status or conditions that materially affects compensation, benefits, or job duties. This is the “harm” element for discrimination claims.
Materially adverse action (retaliation): An action that might dissuade a reasonable worker from making or supporting a discrimination charge (Burlington Northern standard). It can include a broader range of harms than discrimination’s adverse action standard, but still requires “some harm.”
Preservation: The requirement that issues and theories be raised in the trial court—particularly in briefing on summary judgment—so the court can address them. Unpreserved theories are generally not considered on appeal.
Plain-error review: A narrow appellate safety valve for unpreserved errors, requiring an error that is clear or obvious and affects substantial rights. It is rarely applicable in civil appeals and even less so when the alleged error involves a theory never presented below.
Summary judgment: A procedural device allowing judgment without trial when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Parties opposing summary judgment must present their legal theories and cite record evidence supporting each element, including harm.
Nonprecedential order and judgment: A decision that is not binding precedent except under doctrines like law of the case, res judicata, and collateral estoppel. In the Tenth Circuit, such orders may still be cited for persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Amicus curiae: A “friend of the court” who is not a party but submits views to assist the court. The EEOC appeared as amicus here, signaling broader interest, though the panel resolved the appeal on narrow procedural grounds.

Conclusion

Blaine v. Mystere Living & Healthcare reaffirms a foundational appellate principle in the Tenth Circuit: a party cannot obtain reversal on a theory of harm not presented to the district court. The opinion underscores that, even when the district court addresses harm, an appellant who abandons the harm theory litigated below cannot retrofit the case on appeal with a new formulation—here, an unbriefed claim of harm premised on being unable to say goodbye during a paid notice period.

The panel’s careful treatment of plain-error doctrine further narrows the escape route for late-raised arguments: unless properly positioned in the opening brief and unmistakably obvious on the existing record, such claims will fail. For Title VII practitioners, the message is clear. Identify and develop all plausible harm theories at the summary judgment stage, support them with specific record citations, and tailor them to the distinct standards governing discrimination and retaliation. Procedural rigor—not creative recharacterization on appeal—determines whether a case survives to be heard on the merits.

Case: Blaine v. Mystere Living & Healthcare, Inc., No. 24-3121 (10th Cir. Nov. 14, 2025). Panel: Matheson, Kelly, Bacharach. Opinion by Judge Bacharach. Disposition: Affirmed.

Blaine v. Mystere Living & Healthcare: Appellate Review Is Limited to Preserved Theories of Harm in Title VII Cases