Labor & Employment Law Daily Wrap Up, DISCRIMINATION—10th Cir.: Chinese-American applicant passed over for superintendent position denied en banc rehearing on bias claims, (Jul 21, 2026)

By Kathleen Kapusta, J.D.

“McDonnell Douglas has faced mounting scrutiny over the years, both within this Circuit and outside of it.”

In a case in which it had previously affirmed a lower court’s grant of summary judgment against the race and age discrimination and retaliation claims asserted by a Chinese-American engineer at a Tulsa water treatment plant because he could not point to facts upon which a jury could find the city was untruthful in its assertion that it desired a candidate with “leadership” experience which the employee lacked, the Tenth Circuit denied the employee’s Petition for Rehearing En Banc. Judge Eid, joined by Judges Hartz and Tymkovich, dissented (Jiang v. City of Tulsa, No. 25-5097 (10th Cir. July 20, 2026)).

The employee had applied for a position as the plant’s superintendent and he and two younger white men, neither of whom possessed a college degree, were considered for the role. When the employee was passed over for the position, he complained of race and age discrimination to the city’s HR department, arguing that the other two candidates should not have been certified as applicants because neither met the job’s education requirement. The city subsequently rewrote the education requirement for the position, effectively changing the job description to ensure that the two white candidates qualified for the position.

The city ultimately reposted the position, the employee and the two white men applied, and the white man who was chosen the first time around was chosen again. The employee sued, and the district court granted summary judgment to the city.

Prior opinion. The Tenth Circuit, addressing the employee’s discrimination claims under the McDonnell Douglas framework in its March 17, 2026, decision, found he failed to show pretext. The employee sought rehearing en banc, which the court denied.

Dissent. Dissenting from that denial, Judge Eid argued that “McDonnell Douglas’s fixation on pretext is especially problematic in cases like this one, where the facts presented at summary judgment make the case close enough to go to a jury. McDonnell Douglas has faced mounting scrutiny over the years, both within this Circuit and outside of it, and I believe the instant case offers us a chance to address pretext in the summary judgment context.”

The Supreme Court, she asserted, “has stated that the McDonnell Douglas framework was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’” The Court, she continued, “has directed us to be more flexible when evaluating whether pretext existed under McDonnell Douglas, but we have not followed that instruction in this case.”

The case is No. 25-5097.

Judge: Per Curiam.

Attorneys: Mark Allen Smith (Caruso Smith Picini) for Hua Jiang. Kristina L. Gray, City of Tulsa Legal Department, for City of Tulsa.

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