If a lawsuit is a house, then the complaint is its foundation.
Buried in a footnote of Brannon v. City of New York, No. 09CV4335-LTS, 2016 WL 270399 (S.D.N.Y. Jan. 21, 2016) is an important pleading point for employment discrimination cases – namely, that the failure to plead a particular theory of recovery (here, hostile work environment) may result in the dismissal of that claim/theory, regardless of whether it is raised when opposing summary judgment.
That is what happened here. Judge Swain explains:
Although Plaintiff makes an argument in his Opposition Brief [in response to defendant’s motion for summary judgment] that the undisputed facts presented entitle Plaintiff to a finding of a hostile work environment as a matter of law, it is well settled that a Court should not on summary judgment consider factual allegations and legal theories not raised in the complaint. … Because Plaintiff failed to raise a hostile work environment claim in any of the complaints filed in these consolidated actions, the Court will not consider those arguments here.
In support, the court cites Bush v. Fordham University, 452 F. Supp. 2d 394, 406 (S.D.N.Y. 2006) for the proposition that “although a complaint need not correctly plead every legal theory in supporting the claim, at the very least, plaintiff must set forth facts that will allow each party to tailor its discovery to prepare an appropriate defense.”