## Facts

- Cassandra MacArthur worked for about six years as a research laboratory technician in the biochemistry department at the University of Texas Health Center at Tyler (UTHC), a public employer.
- Her workplace superiors included Dr. Alan Cohen (direct supervisor), Dr. Richard Painter (department chair), and Dr. Michael Wilson (human resources).
- MacArthur complained to Cohen after observing Painter berate a female employee, stating that Painter could not continue to abuse women.
- MacArthur alleged Painter then engaged in retaliatory or harassing behavior and that UTHC did not correct it.
- She asserted multiple theories: First Amendment retaliation, sex discrimination, intentional infliction of emotional distress (IIED) under Texas law, Equal Protection, and Title VII retaliation.
- Although listed in the pretrial order, at trial MacArthur presented evidence and argument only on First Amendment retaliation, sex discrimination, and IIED.
- MacArthur did not present evidence or argument on Title VII retaliation, did not request a jury instruction on it, and did not object to its omission; she objected to the omission of an Equal Protection instruction, but that claim did not go to the jury.
- The jury rejected the First Amendment retaliation and sex-discrimination claims, but found for MacArthur on IIED against Painter only and awarded $65,000.
- The district court entered judgment consistent with the verdict and denied MacArthur’s motion for a new trial.
- On appeal, MacArthur’s briefing focused on Title VII retaliation and related evidentiary complaints, not on the First Amendment or sex-discrimination claims decided by the jury.
- Painter cross-appealed, challenging the legal sufficiency of the evidence supporting the IIED verdict and damages.

## Issues

1. Whether a Title VII retaliation theory could be reviewed on appeal when it was not pursued at trial, not submitted to the jury, not preserved by objection, and not embodied in the final judgment.
2. Whether claims decided at trial and included in the judgment (First Amendment retaliation and sex discrimination) are abandoned on appeal when the appellant does not brief and argue them.
3. Whether the evidence was legally sufficient under Texas law to support an IIED verdict based on “extreme and outrageous” conduct.

## Decision

- The court declined to review MacArthur’s Title VII retaliation theory because it was abandoned in the district court and not part of the judgment under review.
- The court treated MacArthur’s First Amendment retaliation and sex-discrimination claims as abandoned on appeal because she did not brief or argue them.
- The court sustained Painter’s cross-appeal and reversed the IIED judgment, holding the evidence did not satisfy Texas’s “extreme and outrageous” requirement for IIED.
- The net result was no relief for MacArthur on appeal and reversal of the $65,000 award against Painter.

## Legal Principles

- Appellate review is limited to matters preserved and embodied in the final judgment; a claim not pursued at trial and not submitted to the factfinder cannot be raised for the first time on appeal.
- An appellant abandons issues that are included in the judgment if the appellant fails to adequately brief and argue them on appeal; a notice of appeal does not substitute for developed appellate argument.
- Under Texas law, IIED requires conduct that is “extreme and outrageous,” exceeding ordinary workplace disputes; harsh, unfair, or unprofessional treatment in employment settings generally does not meet the threshold absent exceptionally egregious facts.

## Conclusion

The Fifth Circuit enforced both trial-level and appellate-level abandonment rules by refusing to consider an untried Title VII theory and treating unbriefed tried claims as waived, and it reversed the IIED verdict because the record did not show workplace conduct sufficiently extreme and outrageous under Texas law.


MacArthur v. Univ. of Tex. Health Ctr. at Tyler, 45 F.3d 890 (5th Cir. 1995)