The Denver-based federal appeals court agreed on Wednesday that a Black plaintiff failed to show that a Chili’s manager’s request for her family to provide valid payment at the outset of their meal amounted to racial discrimination.

Markesha Futrell-Smith filed claims under state and federal civil rights law, alleging a Denver Chili’s restaurant treated her differently based on her race by asking Futrell-Smith and her husband for valid payment upfront. Futrell-Smith’s family were allegedly the only Black customers at the time and there was no proof they had previously left without paying, as some staff believed.

Last year, Chief U.S. Magistrate Judge Scott T. Varholak determined the evidence did not show any intentional discrimination on Chili’s part. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that conclusion, noting Futrell-Smith needed to show Chili’s treated her differently than a non-Black customer who was also suspected of walking out on a check.

“Because Plaintiff identifies no non-Black customers that Defendant also suspected of a prior walkout, the other customers were not similarly situated in all relevant respects,” wrote Judge Joel M. Carson III in the Sept. 2 opinion. “Indeed, the record only identifies a White customer that Defendant suspected of a prior walkout and treated the same way as Plaintiff.”

Futrell-Smith, her husband and her children visited the Chili’s one night in April 2022. They had eaten there frequently and Futrell-Smith spoke with the assistant general manager several times before.

However, the Chili’s had experienced recent instances of customers walking out without paying, and a server claimed Futrell-Smith and her husband had previously done so. In response, the assistant manager asked the family for valid payment because they had been “identified as” walkouts.

Futrell-Smith began yelling at the manager and followed her through the restaurant. Eventually, the family left without eating.

Futrell-Smith denied she ever walked out on a check. She also acknowledged her appearance was different than usual that day, and the manager may have made the accusation before recognizing her.

A Chili’s inquiry found the assistant manager’s handling of the situation violated company policies. The Colorado Civil Rights Division, in response to Futrell-Smith’s complaint, determined Chili’s denied Futrell-Smith the “full and equal enjoyment” of a public accommodation due to discrimination.

Futrell-Smith then filed a discrimination lawsuit against the restaurant’s operator, Brinker International, Inc. The defendant moved to end the case in its favor without a trial, arguing a “misunderstanding and a reactionary decision of a restaurant manager” did not equate to intentional racial discrimination.

In his order, Varholak determined that Futrell-Smith’s civil rights claims failed under federal law. Futrell-Smith had to show Chili’s treated her differently from non-Black customers who were also suspected of walking out on a check.

“Ultimately, Plaintiff’s belief that she was singled out because of her race is not supported by specific, admissible evidence,” Varholak wrote. “Indeed, the only other similar comparator was a Caucasian male suspected of previously walking out on a bill and he was likewise questioned about his ability to pay.”

Futrell-Smith appealed to the 10th Circuit, arguing a jury could “easily disbelieve Chili’s asserted justification” and find Futrell-Smith was singled out for her race. She also challenged Varholak’s handling of her request for sanctions against the defendant for accidentally destroying interview notes with the server who claimed Futrell-Smith previously walked out.

The panel disagreed with Futrell-Smith’s argument that Varholak never determined an appropriate sanction before resolving the case in Chili’s favor.

“Here, the district court resolved Plaintiff’s sanctions motion at a December 2, 2024, hearing. It found that Defendants ‘had a duty to preserve’ the (server’s) interview notes but that any prejudice from their loss was speculative. The district court therefore rejected Plaintiff’s requested sanctions,” wrote Carson. “Only after resolving the sanctions motion did the district court grant Defendant summary judgment.”

Carson elaborated that the accuracy of the server’s identification of Futrell-Smith as a walkout was irrelevant, as the assistant manager had acted on the information as if it were correct.

Ultimately, “Plaintiff identified no other customer, similarly situated in all relevant respects, outside her protected class who received more favorable treatment,” which doomed her discrimination claims, Carson wrote.

The case is Futrell-Smith v. Brinker International, Inc.