Cutrera v. Bd. of Supervisors

In Cutrera v. Bd. of Supervisors, the Fifth Circuit explained an often-cited rule about waiver of an argument not argued in the district court:

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Appellant argues next that the District Court erred when it granted summary judgment on her ADA retaliation claim. The District Court found that appellant failed to prove any causal connection between the protected activity asserted in Appellants retaliation claim requesting an accommodation from the LSU Law Library in 1997 and applying for new positions following her termination in 1998 and the adverse employment action. Appellant now argues that the District Court failed to consider her request for accommodations at the LSU Foundation in 1998 as a basis for the alleged retaliation. However, Appellant's new factual theory was not raised in her complaint, nor raised in her opposition to Appellee's motion for summary judgment. We decline to consider Appellant's new arguments raised for the first time on appeal. Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir.2004). The District Court correctly dismissed the retaliation claims. C. Appellant argues next that the District Court erred when it granted summary judgment on her 1983 claim, arguing that the District Court ignored her First Amendment retaliation claim. Appellant's First Amendment retaliation claim, however, was not raised in her complaint, and instead was raised for the first time in response to Appellee's motion for summary judgment. A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court. Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990).

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Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005).