Tenth Circuit: Discrimination Case Can Proceed Though Plaintiff and Successful Candidate Share Race

An African-American narcotics agent who claimed he was passed over for a promotion in favor of a less-qualified candidate can pursue his race discrimination claim even though the agent promoted was also African-American, a federal judge ruled last week. Edwards v. Okla. ex rel. Okla. Bureau of Narcotics & Dangerous Drugs Control (W.D. Okla. 2015). Judge Robin Cauthron said her decision was in line with Tenth Circuit precedent as established in Perry v. Woodward (10th Cir. 1999).

Chris Edwards applied for and was denied a special agent position in July 2014. Edwards alleged the agent who received the job was less experienced and educated, and lacked training. Moreover, he had a disciplinary record.

Edwards sued in July 2015, but did not mention the race of the candidate promoted over him in his complaint. The state moved for dismissal, arguing that Edwards’ failure to allege he was replaced by a non-minority was fatal to his case.

Edwards persuaded the court that no such requirement exists under the law, and that a qualified candidate need only show that after he was rejected, the position was filled. The court acknowledged that a requirement to plead race has appeared in district court and Tenth Circuit cases, but only as non-precedential dicta, which does not carry the force of law.

Requiring Edwards to show that the person hired instead of him was a non-minority “is untenable because it could result in the dismissal of meritorious claims,” the court wrote. Such a requirement “would preclude suits against employers who replace a terminated employee with an individual who shares her protected attribute only in an attempt to avert a lawsuit.”

Members should be aware that hiring an employee or applicant in a protected class over an employee in the same protected class will not necessarily prevent a failure-to-promote lawsuit. Members are encouraged to contact MSEC with any questions or concerns.