Tenth Circuit holds plaintiff’s case insufficient even though supervisor kept a special file on the plaintiff in case he some day decided to “pull the race card”

The Tenth Circuit held a plaintiff failed to establish a case worthy of trial, entering summary judgment for lack of evidence of discrimination, even though the plaintiff submitted evidence his supervisor had kept a special file on him because, plaintiff contends the supervisor admitted, he feared plaintiff would some day “pull the race card.”

The plaintiff, who was African-American, sued because he’d been denied a promotion. That same supervisor had evaluated the candidates for promotion and was part of the 4-person panel that decided not to promote plaintiff.

The Tenth Circuit held, first, that the supervisor’s having kept a special file on plaintiff was not an indication of discrimination. This was true even though the evidence suggested the supervisor hadn’t kept such a file on any other individual. The Tenth Circuit held further that it was non-discriminatory even if the supervisor had said he was keeping the special file because he feared plaintiff would “pull the race card.” The Tenth Circuit said that admission suggested merely that the file was
“a precautionary measure, not a symptom of invidious animus.”

Then, the court held, even if other evidence did suggest a discriminatory animus, the plaintiff had failed to prove that the supervisor’s animus had somehow infected the other three panelists.

Employers are cautioned this case illustrates a difficult tension in the current status of analyzing motions for summary judgment. It remains to be seen whether future courts will agree that keeping a special file only on a minority worker is somehow non-discriminatory simply because the supervisor fears the worker will “play the race card.” Indeed the Tenth Circuit itself did not identify the decision for official publication, saying it was “not binding precedent,” although it can nonetheless be cited “For its persuasive value.”

Source: Sasser v. Salt Lake City, case no. 17-4198 (10th Cir. 5/20/19).