Date: Sep 3, 2026

Comparator-or-None: No Prima Facie § 1981 / § 2000a Discrimination Inference Under McDonnell Douglas Without a Similarly Situated Comparator

1. Introduction

Case: Futrell-Smith v. Brinker International (10th Cir. Sept. 2, 2026) (unpublished “Order and Judgment”).
Parties: Markesha Futrell-Smith (Plaintiff–Appellant), a Black customer; Brinker International, Inc. (Defendant–Appellee), operator of Chili’s.
Background: Plaintiff alleged that a Chili’s manager required her to provide payment “upfront” before service after a server identified her as a prior “walkout.” Plaintiff left the restaurant and later sued under 42 U.S.C. § 1981 and 42 U.S.C. § 2000a (and a Colorado public-accommodations statute, later dismissed without prejudice when the federal claims failed).
Key issues on appeal:

Whether the district court abused its discretion by granting summary judgment before “resolving” a spoliation sanctions motion.
Whether summary judgment improperly rested on inadmissible hearsay (a server’s statement relayed by the manager).
Whether the district court misapplied McDonnell Douglas by requiring comparator evidence at the prima facie stage and by defining “similarly situated” customers in a way that allegedly collapsed steps one and two.

2. Summary of the Opinion

The Tenth Circuit affirmed summary judgment for Brinker. It held that when a plaintiff seeks to raise an inference of racial discrimination through comparator evidence, the plaintiff must identify at least one comparator—someone “similarly situated in all relevant respects” but outside the protected class who received more favorable treatment. Absent such a comparator, “disparate treatment alone” does not establish a prima facie case of discrimination at step one of the McDonnell Douglas framework.

The court also rejected Plaintiff’s procedural and evidentiary challenges: the sanctions motion had been resolved before summary judgment, and the server’s identification of Plaintiff as a “walkout” was not hearsay because it was used to show its effect on the manager (why the manager acted), not to prove that Plaintiff actually walked out on prior bills.

3. Analysis

3.1. Precedents Cited

A. Timing/management of sanctions and summary judgment

Helget (844 F.3d at 1225–27): Treated a claim that summary judgment was entered before resolving spoliation as reviewed for abuse of discretion and described a “best practices” preference to decide spoliation “before, or in the process of” summary judgment. The court used Helget to distinguish this case: here, the district court did resolve whether sanctions were warranted and what sanctions to impose before entering summary judgment.
Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005): Found abuse of discretion where sanctions were granted but the sanction was deferred until trial, and summary judgment later ended the case with “no sanction of any kind.” The Tenth Circuit distinguished Phillips because the district court here imposed a defined, lesser sanction (allowing evidence that notes existed but were missing and permitting a “should have preserved” instruction request), rather than leaving sanctions unresolved at case-dispositive time.
Gutierrez v. Cobos, 841 F.3d 895 (10th Cir. 2016) and Trans-Western Petrol., Inc. v. U.S. Gypsum Co., 830 F.3d 1171 (10th Cir. 2016): Cited in the discussion analogizing spoliation-timing complaints to Rule 56(d) requests and confirming abuse-of-discretion review.

B. Hearsay at summary judgment; “effect on the listener”

Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir. 1993) (citing United States v. Lambinus, 747 F.2d 592 (10th Cir. 1984)): Establishes that statements offered for their “effect on the listener” are generally not hearsay. The court relied on this doctrine to admit the server’s identification of Plaintiff as a prior walkout—not to prove the walkout occurred, but to explain the manager’s subsequent conduct.
Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)): Reiterates that summary judgment evidence need not be in trial-admissible form so long as it can be presented in admissible form at trial.
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193 (10th Cir. 2006) (citing Bryant v. Farmers Ins. Exch., 432 F.3d 1114 (10th Cir. 2005)): Illustrates that affidavits/deposition testimony may be considered at summary judgment because the witness can testify live at trial—supporting consideration of Kilwine’s deposition account of what she was told.

C. Substantive discrimination framework and comparator requirement

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The foundational three-step burden-shifting framework for circumstantial evidence discrimination claims; the court emphasized that Plaintiff failed at step one (prima facie case), so step three (pretext) was never reached.
Durham v. Xerox Corp., 18 F.3d 836 (10th Cir. 1994): Confirms McDonnell Douglas applies to § 1981 claims relying on circumstantial evidence.
Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523 (10th Cir. 1995) and Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091 (10th Cir. 2001) (also citing Bellows v. Amoco Oil Co., 118 F.3d 268 (5th Cir. 1997) and Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996)): Provide the elements of a prima facie § 1981 claim, including discriminatory intent as the contested element here.
Jackson v. BellSouth Telecomms., 372 F.3d 1250 (11th Cir. 2004) (citing Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306 (11th Cir. 1998) and E & T Realty v. Strickland, 830 F.2d 1107 (11th Cir. 1987)): Cited for the comparator principle that comparators must be “similarly situated in all relevant respects” other than race. The Tenth Circuit used this to hold that other restaurant patrons were not valid comparators because they were not suspected walkouts.
EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) (citing Burrus v. United Tele. Co. of Kan., 683 F.2d 339 (10th Cir. 1982), and also citing Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999); Williams v. Boorstin, 663 F.2d 109 (D.C. Cir. 1980); Powell v. Syracuse Univ., 580 F.2d 1150 (2d Cir. 1978)): Plaintiff invoked Horizon to argue the district court improperly imported the defendant’s asserted reason into the prima facie inquiry. The court distinguished Horizon: there, the employer’s “qualification” was an employer-imposed criterion unrelated to job performance and could not be used to block step one. Here, the suspicion of a prior walkout was a “relevant respect” that determined whether customers were similarly situated.
Lizardo v. Denny's, Inc., 270 F.3d 94 (2d Cir. 2001): Used to justify affirming the § 2000a ruling where Plaintiff did not develop an independent appellate argument and where similar reasoning can defeat both statutes’ discrimination theories on the same record.
Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty., 661 F.3d 477 (10th Cir. 2011) (quoting Lauck v. Campbell Cnty., 627 F.3d 805 (10th Cir. 2010) and Meiners v. Univ. of Kan., 359 F.3d 1222 (10th Cir. 2004)): Cited for the standard of de novo review and viewing evidence in the appellant’s favor at summary judgment.

3.2. Legal Reasoning

A. Comparator evidence is essential (when it is the plaintiff’s chosen route)

The opinion’s central move is to treat Plaintiff’s “only Black patrons + asked to prepay + no White patrons asked to prepay” theory as a comparator-based inference. Once framed that way, the court required a comparator “similarly situated in all relevant respects” except race. The “relevant respect” here was the manager’s suspicion (based on what she was told) that the customer had previously walked out on bills. Because Plaintiff identified no non-Black customer who was similarly suspected and nevertheless served without upfront payment, she could not clear step one of McDonnell Douglas.

B. Distinguishing “collapsing” steps one and two under Horizon

Plaintiff argued the district court improperly defined the comparator class by adopting Defendant’s justification (walkout suspicion), thereby collapsing the prima facie stage into the legitimate-reason stage. The Tenth Circuit rejected that analogy to EEOC v. Horizon/CMS Healthcare Corp. because the alleged walkout suspicion was not an arbitrary employer-imposed “qualification” unrelated to the relevant comparison; it was the key factual feature that made customers alike or different for disparate-treatment purposes. Thus, the court treated “suspected walkout” as part of the “similarly situated” inquiry rather than an impermissible early merits defense.

C. Hearsay and “effect on the listener” in discrimination explanations

The court allowed the record to include the server’s statement (as relayed by the manager) because it was offered to explain the manager’s conduct—why she confronted Plaintiff and requested payment upfront—not to prove Plaintiff actually walked out before. This evidentiary holding matters in discrimination cases because decisionmakers often act on reports, complaints, or tips; proving discriminatory intent may require understanding what the decisionmaker believed, even if the underlying report was wrong.

D. Spoliation sanctions did not block summary judgment

The court emphasized that the district court had already decided the spoliation motion and selected lesser sanctions (no exclusion, no adverse inference) based on speculative prejudice and lack of bad faith. Because no sanction barred Defendant’s reliance on the summary judgment record, there was no procedural error in deciding summary judgment after the sanctions ruling.

3.3. Impact

Public-accommodation discrimination claims may rise or fall on finding a true comparator: Plaintiffs pursuing a “treated worse than others” theory in restaurant/retail settings should expect courts to demand at least one non-protected customer who was similar on the key triggering facts (here, suspected prior nonpayment) yet was treated better.
Comparator definition can legitimately incorporate context that explains the challenged action: The decision signals that “collapsing steps” objections (via Horizon) will not succeed where the allegedly imported fact is a genuine “relevant respect” for comparability rather than an extraneous or arbitrary criterion.
Evidence of what the decisionmaker was told is often admissible for a non-hearsay purpose: By relying on “effect on the listener,” defendants (and plaintiffs) can often introduce third-party statements to show motive, knowledge, or belief—though not to prove the underlying accusation true.
Limited precedential force but practical persuasive weight: As an unpublished “Order and Judgment,” it is “not binding precedent” except for law-of-the-case/res judicata/collateral estoppel, but it can be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

4. Complex Concepts Simplified

McDonnell Douglas framework: A three-step method used when there is no direct evidence of discrimination. Step 1: Plaintiff must produce a minimal “prima facie” showing suggesting discrimination. Step 2: Defendant must offer a legitimate, nondiscriminatory reason. Step 3: Plaintiff must show that reason is a pretext (not the real reason). If the plaintiff fails at step 1, the court never reaches steps 2 and 3.
Comparator: Another person outside the plaintiff’s protected class who is similar in the ways that matter to the challenged decision. The point is to isolate race as the meaningful difference.
“Similarly situated in all relevant respects”: Not identical in every detail—only alike on facts that would reasonably drive the decision. Here, the relevant respect was whether the customer was suspected of being a prior “walkout.”
Hearsay vs. non-hearsay (effect on the listener): A statement is hearsay only when used to prove what it asserts is true. If used to show what the listener believed or why the listener acted, it is often not hearsay.
Spoliation sanctions: Penalties for failing to preserve evidence. Courts calibrate sanctions based on duty to preserve, culpability (e.g., bad faith), and prejudice—here found speculative, supporting only mild remedies.

5. Conclusion

Futrell-Smith v. Brinker International crystallizes a practical rule for comparator-based discrimination claims in public-accommodation settings: when a plaintiff relies on disparate treatment to imply discriminatory intent under McDonnell Douglas, the plaintiff must identify at least one similarly situated comparator outside the protected class who received better treatment. The court also reinforced two recurring litigation points: (1) third-party accusations can be admissible to show “effect on the listener” (what the decisionmaker believed), and (2) spoliation disputes will not derail summary judgment where the district court has already selected appropriate, proportionate sanctions and no sanction excludes dispositive record evidence.