Blaine v. Mystere Living & Healthcare, Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_____________________________________________________
JENNIFER BLAINE,
Plaintiff - Appellant,
v.
MYSTERE LIVING &
HEALTHCARE, INC.,
Defendant - Appellee.
------------------------------------
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amicus Curiae.
No. 24-3121
(D.C. No. 2:22-CV-02471-TC)
(D. Kan.)
______________________________________________________
ORDER AND JUDGMENT *
_______________________________________________________
Before MATHESON, KELLY, and BACHARACH, Circuit Judges.
_______________________________________________________
This case involves shifting allegations in an employment dispute.
The dispute led the plaintiff to resign and then to sue her former
employer. In the suit, the plaintiff has characterized her resignation as a
* 	This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
F APPEALS
CUIT
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R	R	R
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FILED
United States Court of Appeals
Tenth Circuit
November 14, 2025
Christopher M. Wolpert
Clerk of Court
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source of harm; but when she appealed, she changed her allegations about
the nature of her resignation and how she had been harmed.
In district court, the plaintiff alleged harm based on constructive
discharge. On appeal, she jettisons her allegation of constructive discharge
and concedes that she voluntarily quit, gave two weeks’ notice, and
obtained payment for the notice period. Despite these concessions, the
plaintiff argues on appeal that she was harmed when the employer didn’t
allow her to work for most of her notice period. The resulting question is
whether we can reverse when the plaintiff abandons the allegation of harm
presented in district court. We answer no.
1. 	The plaintiff resigns and sues unsuccessfully after complaining of
sexual harassment.
The plaintiff, Ms. Jennifer Blaine, worked at an assisted living
facility called Wellsville Health & Rehab. While she worked there,
Ms. Blaine complained about a coworker ’s sexual harassment. Ms. Blaine
later quit, giving Wellsville two weeks’ notice. Three days after receiving
the notice, Wellsville informed Ms. Blaine that (1) this would be her last
day and (2) she would be paid for the whole notice period.
Ms. Blaine sued, claiming retaliation and sex discrimination under
Title VII of the Civil Rights Act of 1964. 1 On both claims, the district
1 	She also claimed a hostile work environment, but she drops that
claim on appeal .
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court granted summary judgment to Wellsville, reasoning that Ms. Blaine
had failed to show either harm or a constructive discharge.
2. 	Ms. Blaine changes her allegations for both claims.
In this appeal, Ms. Blaine continues to press her claims for sex
discrimination and retaliation. For both claims, however, she changes her
allegations of harm. In district court, she alleged harm from constructive
discharge, 2 relying on Wellsville’s failure to stop the sexual harassment.
The district court rejected this allegation, reasoning that the conditions
hadn’t been severe enough to constitute a constructive discharge.
Ms. Blaine argues on appeal that the district court assessed harm
under the wrong standards. But this argument no longer fits because the
district court applied the disputed standards to allegations that Ms. Blaine
has abandoned.
In their place, Ms. Blaine argues on appeal that Wellsville should
have let her work another eleven days so that she could say goodbye to
coworkers and residents. 3 But Ms. Blaine didn’t present this argument
2 	Wellsville says that Ms. Blaine also based her claim of sex
discrimination on different policies for male and female employees
involving sexual harassment of female employees. This claim appeared in
the final pretrial order, but not in Ms. Blaine’s objection to summary
judgment.
3 	Ms. Blaine also argues on appeal that she was terminated when told
that she didn’t have to work through the notice period. But Ms. Blaine
acknowledges that she was paid for this period and received all of the
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when responding to Wellsville’s motion for summary judgment. As a result,
the district court couldn’t consider whether the inability to say goodbye
would have supported a claim of sex discrimination or retaliation. And we
ordinarily decline to reverse an award of summary judgment based on a
theory that the appellant didn’t present in district court. See Murphy v. City
of Tulsa, 950 F.3d 641, 645 (10th Cir. 2019) (stating that the court of
appeals limits review of summary judgment motions to arguments made in
district court).
Ms. Blaine nonetheless argues in her reply brief that (1) the district
court resolved the issue of harm and (2) the court’s errors were plain.
These arguments disregard Ms. Blaine’s failure to preserve the new
allegation of harm.
For example, Ms. Blaine observes that the district court decided that
Ms. Blaine’s harm hadn’t been severe enough to create liability for sex
discrimination or retaliation. This observation is beside the point: Ms.
Blaine acknowledges that she needed to show “some harm” to recover for
either sex discrimination or retaliation. Plaintiff ’s Opening Br. at 9, 27–28.
For both claims, Ms. Blaine argues that the district court applied the wrong
tests when assessing the harm. Id. at 10–11, 13, 18–22, 27–28.
required benefits. She appears to base harm from the alleged termination
on her inability to say goodbye to coworkers and residents.
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On appeal, however, Ms. Blaine changes her allegation of harm. In
district court, she identified the harm as her need to quit because of the
sexual harassment. On appeal, she abandons this allegation, characterizing
the harm as the inability to say goodbye to coworkers and residents during
the notice period. Id. at 12, 21, 23. With this new characterization of the
harm, Ms. Blaine argues that the district court applied the wrong standards
to assess an allegation of harm that she has abandoned.
Ms. Blaine also argues in her reply brief that the district court’s use
of the wrong standards would have constituted plain error. For the sake of
argument, let’s assume that Ms. Blaine could assert plain error for the first
time in her reply brief. See United States v. Faunce, 66 F.4th 1244, 1247
n.2 (10th Cir. 2023) (assuming for the sake of argument that the appellant
could request plain-error review for the first time in a reply brief). 4
4 	We ordinarily consider unpreserved arguments only if the appellant’s
opening brief includes an argument for plain error. See United States v.
Portillo-Uranga, 28 F.4th 168, 177 (10th Cir. 2022) (stating that we
typically consider an unpreserved argument only if the appellant urges
plain-error review in the opening brief). But “a meaningful assertion in an
opening brief that an issue is preserved advances an argument that this
court should exercise its discretion to take up a plain-error argument raised
for the first time in a reply brief.” United States v. Paycer, No. 23-5120,
2025 WL 2652831, at *4 (10th Cir. Sept. 16, 2025) (to be published); see
also United States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015)
(“We hold that Defendant adequately addressed the issue of plain error in
his reply to the government’s brief, after arguing in his opening brief that
his objections below were sufficiently raised to be preserved for review on
appeal.”). But Ms. Blaine didn’t argue in her opening brief that she had
preserved her theory involving an inability to say goodbye. Absent such an
argument, we need not decide whether Ms. Blaine could raise plain error
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With this assumption, the pertinent question would be whether the
district court plainly erred by failing to recognize harm from Ms. Blaine’s
inability to say goodbye to coworkers and residents. An alleged error
would be considered plain only if it had been obvious. Bishop v. Smith, 760
F.3d 1070, 1095 n.17 (10th Cir. 2014).
If an error had occurred, it wouldn’t have been obvious to the district
court because Ms. Blaine hadn’t argued that she would have wanted to say
goodbye to coworkers or residents. Without an argument, the district court
would have had to sift through uncited record pages and devise a new
theory of harm from Ms. Blaine’s inability to say goodbye after quitting
her job. So if the court had erred by failing to concoct that argument for
Ms. Blaine, the error wouldn’t have been obvious.
* * *
Ms. Blaine insists that she was harmed by her inability to say
goodbye to coworkers and residents. The district court never had a chance
to consider this allegation, and the court couldn’t have erred by
for the first time in her reply brief. Cf. Platt v. Winnebago Indus., Inc., 960
F.3d 1264, 1273 (10th Cir. 2020) (concluding that the plaintiff waived an
argument for plain error by waiting until the reply brief).
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misanalyzing an allegation that was never made. We thus affirm the grant
of summary judgment.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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