“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump Fifth Circuit Judge Kurt Engelhardt cast the deciding vote in Inocencio v. Montalvo to affirm a decision granting summary judgment without trial against a Latino Houston police detective who contended he was discriminated against when he sought a promotion. Judge Leslie Southwick, who was appointed by President George W. Bush, dissented and would have given the detective the opportunity to prove his case at trial.

Jose Inocencio was a detective in the Houston Police Department’s narcotics division, and applied for a lieutenant position three times in the High Intensity Drug Trafficking Area (HIDTA) program. All three requests were denied. He filed a discrimination complaint with the EEOC, which agreed he had a sufficient case to file suit. He claimed discrimination based on race as well as retaliation for his first two complaints. The police department and its chief contended that the people they hired instead of Inocencio were better qualified, and the lower court found against him on summary judgment without a trial. In an unsigned 2-1 opinion joined by Engelhardt, a panel of the Fifth Circuit affirmed the district court.

Judge Southwick strongly dissented. As he explained, there were “genuine fact issues” that should have precluded summary judgment and allowed Inocencio to present his case to a jury. In particular, this included evidence that a long-standing practice of internal promotion was “discarded” just before Inocencio would have benefited from it, and that the new practice of using a panel interview was abandoned in favor of the old system “shortly after” he left the department. Southwick accordingly concluded that there was evidence that the new procedure was adopted and then abandoned “for discriminatory reasons” and that the task of making that factual determination properly “falls to the jury.” As a result of Engelhardt’s deciding vote, however, Inocencio will never have the chance to prove his discrimination claim to a jury.