Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—8th Cir.: St. Louis may not use race in considering police commissioner promotion, (Sep 9, 2026)

By Ursula Furi-Perry, J.D., MBA

An employer may not invalidate an established promotional process for reasons having to do with applicants’ race, even when an applicant is not guaranteed the position or remains eligible to compete in a new search.

A police commissioner applicant sued St. Louis, Missouri’s former mayor and former interim director of public safety, alleging that they violated his equal protection rights by refusing to promote him and reopening the hiring process because the original eligible candidates were white men. The district court denied the officials’ motion to dismiss based on qualified immunity, and on appeal, the Eighth Circuit affirmed, holding that the applicant plausibly alleged a violation of clearly established law. An employer may not invalidate an established promotional process for reasons having to do with applicants’ race, even when an applicant is not guaranteed the position or remains eligible to compete in a new search (Sack v. City of St. Louis, No. 25-3044 (8th Cir. Sept. 4, 2026)).

Police commissioner search. In September 2021, the City of St. Louis began a nationwide search for a new police commissioner. Under the city charter, the interim director of public safety was authorized to select the commissioner from candidates certified by the personnel department. The plaintiff, a lieutenant colonel with the police department, was among 29 individuals who applied.

Six candidates were invited to take an in-person examination, but four did not appear; only the plaintiff and another lieutenant colonel received test scores and completed the process necessary to be considered for commissioner. The plaintiff was informed that he had scored 100 on the promotional examination and ranked first on the eligibility list, yet no interview was scheduled.

New search. In January 2022, the mayor publicly stated that she would not select either certified candidate because both were white men and the city and its police department were more diverse. Instead, the mayor announced that the city would begin a new search. The reopened process established lower minimum qualifications and produced four finalists, including the plaintiff, two Black candidates, and another white candidate. After both Black finalists withdrew, the city selected the other white candidate as commissioner.

Lawsuit. Subsequently, the plaintiff sued the city, mayor and interim director alleging that they violated the Equal Protection Clause by declining to promote him and reopening the search based on race. The officials moved to dismiss, arguing that the applicant had suffered no adverse employment action and had not plausibly alleged a failure to promote, particularly because the city ultimately appointed a white man. They also asserted qualified immunity. The district court denied the motion, and the officials appealed the denial of qualified immunity.

Race-based denial. According to the plaintiff, the officials had denied him an established route to promotion because of his race. He also alleged that, after the other certified candidate retired, he was the highest-ranked and only remaining eligible applicant under the original process, and that the only reason the officials could not fill the position from that list was their decision to discriminate on the basis of race.

Adverse employment action? In response, the officials argued that the applicant had not alleged an adverse employment action. The court rejected such an argument based on Ricci v. DeStefano, 557 U.S. 557 (2009), which held that an employer’s race-based invalidation of promotional examination results violated Title VII absent another justification. Because the Eighth Circuit applies a parallel framework to employment discrimination claims under Title VII and the Fourteenth Amendment, Ricci clearly established that invalidating an established hiring process for racial reasons is unlawful. The plaintiff plausibly alleged such an action when the officials reopened the search and changed its requirements because the original eligible candidates were white.

Entitlement. The court also rejected the contention that the applicant had to establish an entitlement to promotion. The firefighters in Ricci were not guaranteed promotions, but the Supreme Court nevertheless recognized that they suffered adverse employment actions when they were denied the opportunity to advance through the established process. Moreover, the plaintiff alleged that the city’s civil service rules entitled him to promotion once he became the only remaining eligible candidate, absent a legitimate reason the vacancy could not be filled. The applicant’s continued eligibility in the reopened search did not eliminate the alleged injury, the court held, as requiring him to compete against a new applicant pool under new criteria, allegedly for racial reasons, did not cure the asserted violation in the original process.

Personal involvement. Finally, the court concluded that the complaint adequately alleged each official’s personal involvement. The mayor allegedly announced that she would not select the certified candidates because they were white men and then initiated a new search. The interim director was the appointing authority, and the applicant had been directed to contact him for an interview. The court found it reasonable to infer that the appointing authority participated in the decision to reopen the search without interviewing the applicant. Accordingly, the court affirmed the federal district court’s decision below.

The case is No. 25-3044.

Judge: Colloton, S.

Attorneys: Lynette Marie Petruska (Petruska Law) for Michael Sack. Andrew D. Wheaton, City Counselor’s Office, for City of St. Louis.

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