DENVER (CN) - A Black woman urged the 10th Circuit on Thursday to revive her racial discrimination lawsuit against Chili's parent company after a Denver restaurant asked her to prepay for her birthday meal.

On April 30, 2022, Markesha Futrell-Smith took her family to her favorite Chili's in Denver to celebrate her birthday. When server Maria Chavez informed manager Natasha Kilwine she recognized Futrell-Smith as someone who had previously walked out on a bill, the manager asked the family to prepay for their meal.

In a federal civil rights lawsuit filed in November 2023 against parent company Brinker International, Futrell-Smith said the manager never informed her of the walkout accusation, but she observed they were the only Black family in the restaurant and the only patrons asked to prepay.

"This case arises from Chili's decision to require Ms. Futrell-Smith and her family, the only Black family in the restaurant, to prepay for their meal based on a disputed claim they had been identified as a walkout," attorney Spencer Kontnik told the court.

Finding Futrell-Smith hadn't interrogated why she had been identified as a walkout, Chief U.S. Magistrate Judge Scott Varholak dismissed the lawsuit in December 2025. Futrell-Smith appealed.

In court, U.S. Circuit Judge Joel Carson raised the same question.

"When you say it was because of her looks, what do you mean?" asked the Donald Trump appointee.

Kontnik said the answer to this question underscores why the case should be decided by a jury and not a judge.

"Chili's couldn't even answer that," Kontnik said. "Chili's couldn't support a single factual detail about how that misidentification was made. That in of itself is strong evidence of pretext."

Kontnik practices with the Denver firm Kontnik Cohen.

Part of the issue came down to the fact that the server who identified the Smith family as walkouts had left the job and could not be brought in for a deposition. On behalf of Brinker International, attorney Melisa Panagakos countered that the server's testimony didn't matter because the manager made the decision to take Futrell-Smith's payment up front.

"We don't know what the truth is in terms of Ms. Chavez's understanding of whether Ms. Futrell-Smith had previously walked out," Panagakos said. "What we do have is testimony regarding Ms. Kilwine's belief for her actions, and that belief has nothing to do with race or racial animus."

Carson asked whether Chili's had a documented problem of customers skipping on their bill.

"Yes, this area had a higher number of walkouts than others, and it was something Ms. Kilwine had been instructed to watch out for," said Panagakos, who practices with Jackson Lewis in San Francisco.

George W. Bush-appointed Senior U.S. Circuit Judge Timothy Tymkovich and Bill Clinton-appointed Senior U.S. Circuit Judge Michael Murphy rounded out the panel. The court did not indicate when or how it would decide the case.

Source: Courthouse News Service