UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DR. LESLIE HANNAH, 

 Plaintiff – Appellee, 

v. 

DR. BRIAN COWLISHAW; DR. DONNA 

SHELTON; DR. D. AUDELL 

SHELBURNE; DR. PHILLIP 

BRIDGMON; DR. STEVE TURNER; 

DR. WILLIAM RUGG, 

 Defendants - Appellants, 

and 

NORTHEASTERN STATE 

UNIVERSITY, 

 Defendant. 

No. 15-7009 

(D.C. No. 6:14-CV-00074-RAW) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, GORSUCH, and McHUGH, Circuit Judges. 

_________________________________ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

January 29, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

 Defendants-Appellants are professors and administrators at Northeastern State 

University (NSU) who were sued by Dr. Leslie Hannah for racial discrimination. They 

interlocutorily appeal from a district court order that denied their assertion of qualified 

immunity on Mr. Hannah’s 42 U.S.C. § 1981 claim. Exercising limited jurisdiction,1

 we 

reverse and remand. 

BACKGROUND

 In 2009, NSU hired Dr. Hannah, a Native American, as an associate professor in 

its Languages and Literature Department. He was soon appointed chair of the 

department. 

 His appointment, however, was not without controversy. Several of the 

Defendants-Appellants made disparaging comments about Dr. Hannah on a social-media 

website. Dr. Hannah reported the comments to NSU, which reprimanded Dr. Brian 

Cowlishaw, Dr. Bridget Cowlishaw, and Dr. Donna Shelton. But that did not stop the 

offensive social-media posts, and Dr. Hannah eventually resigned as department chair. 

 In 2012, Dr. Hannah applied for tenure. The tenure committee, which included 

Dr. Brian Cowlishaw and Dr. Shelton, split evenly on the tenure vote, with one member 

abstaining. Dr. Hannah’s application was then forwarded to the dean, Dr. Phillip 

 1

 This court has jurisdiction over an interlocutory appeal from the district 

court’s denial of qualified immunity only to the extent that the denial rests on issues 

of law. See Johnson v. Jones, 515 U.S. 304, 311 (1995). In other words, “if a 

defendant’s appeal of the denial of qualified immunity is based on the argument that, 

even under the plaintiff’s version of the facts, the defendant did not violate clearly 

established law, then the district court’s ruling is immediately appealable.” 

Hatheway v. Thies, 335 F.3d 1199, 1204 (10th Cir. 2003) (alteration and internal 

quotation marks omitted). 
3 

Bridgmon, who declined to support it, claiming that Dr. Hannah had “polarized his 

department” and “engaged in behaviors that are unsettling . . . and distracting.” Aplt. 

App., Vol. I at 81. The provost, Dr. William Rugg, and the president, Dr. Steve Turner, 

concurred in the denial of tenure. Shortly thereafter, NSU placed Dr. Hannah on paid 

administrative leave for the remainder of his contract. 

 In 2014, Dr. Hannah filed suit in state court, claiming that the denial of tenure was 

racially motivated. Defendants-Appellants removed the case to federal court, where 

Dr. Hannah filed an amended complaint. Therein, he asserted claims under Title VII, 

42 U.S.C. § 1981, the Oklahoma Constitution, and common-law theories of negligence, 

tortious interference with contract, and breach of contract. 

 Defendants-Appellants sought summary judgment on all of Dr. Hannah’s claims. 

Regarding the § 1981 claim, the defendant administrators and professors raised qualified 

immunity. The district court rejected that defense, reasoning that because Dr. Hannah’s 

Title VII claim against NSU would survive summary judgment, so must the § 1981 claim 

against the individual defendants.2

 This appeal followed. 

DISCUSSION

I. Standards of Review 

 “When a defendant asserts qualified immunity at summary judgment, the burden 

shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and 

(2) the constitutional right was clearly established.” Morris v. Noe, 672 F.3d 1185, 1191 

 2

 The district court also denied summary judgment as to the common-law 

claims against the individual defendants. 
4 

(10th Cir. 2012) (internal quotation marks omitted). “[W]e review de novo the district 

court’s denial of a summary judgment motion asserting qualified immunity.” Id. at 1189 

(internal quotation marks omitted). 

II. § 1981 Liability 

 Defendants-Appellants argue that “[t]he district court erred in imposing individual 

liability under § 1981 and the error was compounded by relying on Title VII theories of 

liability . . . .” Aplt. Opening Br. at 14. This argument has merit. 

 Section 1981 gives “[a]ll persons within the jurisdiction of the United States . . . 

the same right . . . to make and enforce contracts.” 42 U.S.C. § 1981. It thus “prohibits 

not only racial discrimination [in the workplace] but also retaliation against those who 

oppose [discrimination].” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2529 

(2013). Similarly, Title VII of the Civil Rights Act of 1964 provides a cause of action 

against employers who “discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), or 

who retaliate against a person for opposing an unlawful employment practice, id. § 

2000e-3(a). 

 But unlike Title VII, § 1981 does not provide a vehicle for remedying racial 

discrimination and retaliation in cases brought against state actors, see Jett v. Dallas 

Indep. Sch. Dist., 491 U.S. 701, 705, 735 (1989). Rather, § 1983 “provides the exclusive 

federal damages remedy for the violation of the rights guaranteed by § 1981 when the 

claim is pressed against a state actor.” Id. at 735. Dr. Hannah does not contest 
5 

Defendants-Appellants’ assertion that they are state actors. Nor does he identify any 

portion of the amended complaint predicated on § 1983. Instead, he attempts to avoid the 

implications of Jett on two grounds. 

 First, Dr. Hannah advances a jurisdictional challenge. He contends that on 

interlocutory review of a decision denying qualified immunity, we may review only “the 

district court’s legal determination that certain alleged actions violate clearly established 

law,” Aplee. Br. at 13 (internal quotation marks omitted), and not whether he is 

“entitle[d] to bring a § 1981 claim against” Defendants-Appellants, id. at 14. But the 

Supreme Court rejected a similar argument in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In 

that case, the plaintiff argued that “a qualified immunity appeal based solely on the 

complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified 

immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Id. at 672 

(internal quotation marks omitted). The Supreme Court disagreed, explaining that “the 

sufficiency of [the plaintiff’s] pleadings is both inextricably intertwined with and directly 

implicated by the qualified immunity defense.” Id. at 673 (citations and internal 

quotation marks omitted). 

 Although Iqbal involved a sufficiency challenge to “the facts pleaded” in the 

complaint, id., various Courts of Appeals have applied Iqbal’s jurisdictional teachings to 

claims for relief that are insufficient as a purely legal matter, see, e.g., Bosarge v. Miss. 

Bur. of Narcotics, 796 F.3d 435, 439, 441 (5th Cir. 2015) (determining on interlocutory 

appeal from denial of immunity that plaintiff’s claim for malicious prosecution was 

foreclosed by circuit precedent); Drimal v. Tai, 786 F.3d 219, 223, 224 (2d Cir. 2015) 
6 

(concluding on interlocutory appeal from denial of immunity that claim for unlawfully 

intercepting phone calls lacked necessary element). Indeed, it has long been recognized 

that interlocutory decisions denying qualified immunity are appealable “to the extent [the 

appeal] turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). 

Therefore, whether Mr. Hannah has plead a legally sufficient § 1981 claim is 

encompassed within this court’s interlocutory jurisdiction over the denial of qualified 

immunity. 

 We now turn to Mr. Hannah’s second ground for overlooking Jett. He maintains 

that Jett was nullified by the Civil Rights Act of 1991, and thus, he may proceed against 

the “individual [defendants] independent of § 1983.” Aplee. Br. at 15. This court has 

held, however, that Jett was unaffected by that legislation. See Bolden v. City of Topeka, 

441 F.3d 1129, 1137 (10th Cir. 2006) (“conclud[ing] that even after the 1991 

amendments to § 1981, damages claims against state actors for § 1981 violations must be 

brought under § 1983”); accord Brown v. Sessoms, 774 F.3d 1016, 1021 (D.C. Cir. 2014) 

(noting that all Circuits except the Ninth recognize Jett’s continued viability). 

Dr. Hannah does not acknowledge Bolden. 

 Because Dr. Hannah’s § 1981 claim contravenes Jett, the district court should 

have dismissed that claim. We therefore reverse and remand this case to the district court 

for further proceedings, which should include providing Dr. Hannah the opportunity to 

amend his complaint to comply with Jett by pleading a § 1983 claim. See Bolden, 441 

F.3d at 1137 (remanding so the plaintiff could seek leave to amend to cure his 

complaint’s Jett violation). 
7 

 Defendants-Appellants also challenge Dr. Hannah’s § 1981 claim for failing to 

allege actions by each defendant that violated a clearly established constitutional right. If 

Dr. Hannah takes advantage of the opportunity to amend his complaint on remand to 

comply with Jett , it is likely the Defendants-Appellants will again claim qualified 

immunity. We therefore pause to provide guidance to the district court on the need to 

consider the actions of each defendant individually in assessing his entitlement to 

qualified immunity. 

The district court’s current summary judgment order does not provide such 

individualized analyses; rather, it denies qualified immunity “for the same reasons the 

court denied the motion . . . as to the Title VII claims against NSU.” Aplt. App., Vol. 

VIII, at 1289. But the district court’s Title VII analysis considered the conduct by all 

actors in combination to determine whether Dr. Hannah’s Title VII claims for 

discrimination, retaliation and hostile work environment against NSU could survive 

summary judgment. In contrast, Defendants-Appellants’ liability and their “entitlement 

to qualified immunity[ ] turn on an individual assessment of each defendant’s conduct 

and culpability.” Pahls v. Thomas, 718 F.3d 1210, 1233 (10th Cir. 2013); accord

Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 570 (6th Cir. 2013) (“[Q]ualified 

immunity must be assessed in the context of each individual’s specific conduct.”); cf. 

Quinn v. Young, 780 F.3d 998, 1017 (10th Cir. 2015) (remanding where the district court 

“did not articulate its rationale for denying the Officers qualified immunity”); Handt v. 

Lynch, 681 F.3d 939, 945 (8th Cir. 2012) (remanding for the district court to “analyze 

whether the facts pertaining to each defendant” show entitlement to qualified immunity). 
8 

 For example, in the current amended complaint, 3 Dr. Hannah alleges his § 1981 

rights were violated because “[t]he defendants unfairly treated and ultimately derailed 

[his] tenure track, at least in part because of his race.” Aplt. App., Vol. I at 17.4

 It is 

clearly established that “employment discrimination on the basis of race” is forbidden by 

§ 1981. Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1244 (10th Cir. 2000); see, e.g., Saint 

Francis Coll. v. Al-Khazraji, 481 U.S. 604, 606, 613 (1987) (denial of tenure). Thus, the 

district court’s task in assessing the Defendants-Appellants’ qualified immunity defenses 

was to “determine which facts a jury could reasonably find from the evidence” and 

whether those facts “suffice to show a . . . violation” of § 1981 as to each of the 

Defendants-Appellants. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) 

(internal quotation marks omitted). This analysis mandates a defendant-by-defendant 

inquiry that matches the allegations with the individual actor. Thus, it cannot be 

predicated on a conclusion that a reasonable jury could find NSU liable under Title VII 

based on the combined actions of the individual actors. 

CONCLUSION

 Because Dr. Hannah’s § 1981 claim in his first amended complaint fails to state a 

claim for relief, we reverse the district court’s judgment and remand with instructions to 

 3

 Dr. Hannah may include new factual allegations in an amended complaint 

properly asserting a § 1983 claim and nothing in this decision is intended to usurp the 

district court’s role in assessing the legal sufficiency of those allegations in the first 

instance. 

4

 Dr. Hannah conceded in the district court that NSU enjoys Eleventh 

Amendment immunity against § 1981 liability. Aplt. App., Vol. V at 360. 
9 

dismiss that claim and to provide Dr. Hannah the opportunity to amend the complaint to 

add a § 1983 claim premised on an alleged violation of his § 1981 rights. 

 Entered for the Court 

Carolyn B. McHugh 

Circuit Judge