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, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 Defendants-Appellants are professors and administrators at Northeastern State University (NSU) who were su ed by Dr. Leslie Hannah for ra cial discrimination. They interlocutorily appeal from a district court or der 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.
B ACKGROUND In 2009, NSU hired Dr. Hannah, a Native American, as an asso ciate professor in its Languages and Literature Department. He was soon appo inted chair of the department. His appointment, however, was not w ithout controversy. Several of the Defendants-Appellants made disparaging comme nts 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 re signed as department chair. In 2012, Dr. Hannah applie d for tenure. The tenure committee, which included Dr. Brian Cowlishaw and Dr. Sh elton, split evenly on the te nure vote, with one member abstaining. Dr. Hannah’s application wa s then forwarded to the dean, Dr. Phillip

1 This court has jurisdiction over an in terlocutory appeal from the district court’s denial of qualified immunity only to the extent that the de nial 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 de nial of qualified immunity is based on the argument that, even under the plaintiff’s version of the fa cts, the defendant di d 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, clai ming that Dr. Hannah had “polarized his department” and “engage d in behaviors that are unsettling . . . and distracting.” Aplt. App., Vol. I at 81. The provost, Dr. Willia m Rugg, and the presiden t, 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 re moved 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 Oklahom a Constitution, and common-law theories of negligence, tortious interference with contract, and breach of contract. Defendants-Appellants sought summary j udgment on all of Dr. Hannah’s claims. Regarding the § 1981 claim, the defendant ad ministrators and professors raised qualified immunity. The district court rejected that defense, reasoning that because Dr. Hannah’s Title VII claim against NSU would survive su mmary judgment, so mu st the § 1981 claim against the individual defendants. 2 This appeal followed.
D ISCUSSION I. Standards of Review “When a defendant asserts qualified imm unity at summary judgment, the burden shifts to the plaintiff to s how that: (1) the defendant vi olated a constitutional right and (2) the constitutional right wa s clearly established.” Morris v. Noe , 672 F.3d 1185, 1191

2 The district court also denied su mmary judgment as to the common-law claims against the i ndividual defendants.4 (10th Cir. 2012) (internal quot ation 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 di strict court erred in imposing individual liability under § 1981 and the error was comp ounded by relying on Title VII theories of liability . . . .” Aplt. Opening Br. at 14. This argument has merit. Section 1981 gives “[a]ll pers ons within the juri sdiction of the United States . . . the same right . . . to make and enforce contr acts.” 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 Righ ts Act of 1964 provides a cause of action against employers who “discriminate agai nst any individual with respect to his compensation, terms, conditions, or priv ileges of employment, because of such individual’s race, color, religi on, sex, or national origin,” 42 U.S.C. § 2000 e-2(a)(1), or who retaliate against a person for opposi ng an unlawful employment practice, id. § 2000e-3(a). But unlike Title VII, § 1 981 does not provide a vehicle for remedying racial discrimination and retaliation in cas es 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 contest5 Defendants-Appellants’ assertion that they ar e 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 jurisdic tional challenge. He contends that on interlocutory review of a decision denying qualified immuni ty, we may review only “the district court’s legal determination that certa in alleged actions viol ate clearly established law,” Aplee. Br. at 13 (internal quotati on 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 qualif ied immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues re levant to the qualified immunity defense itself, is not a proper su bject of interlocutory jurisdiction.” Id. at 672 (internal quotation marks omitted). The Supr eme Court disagreed, explaining that “the sufficiency of [the plaintiff’s] pleadings is bot h inextricably intertwi ned with and directly implicated by the qualifie d 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 plai ntiff’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 deni al of immunity that claim for unlawfully intercepting phone calls lacked necessary elem ent). Indeed, it has lo ng been recognized that interlocutory decisions de nying qualified immunity are app ealable “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 ov er 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) (“c onclud[ing] that even after the 1991 amendments to § 1981, damages claims against state actors fo r § 1981 violations must be brought under § 1983”); accord Brown v. Sessoms , 774 F.3d 1016, 1 021 (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 pr oviding 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 opportun ity to amend his comp laint on remand to comply with Jett , it is likely the Defendants-Ap pellants will again claim qualified immunity. We therefore pause to provide guida nce 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 curre nt summary judgment order does not provide such individualized analyses; rather, it denies qu alified 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 consider ed the conduct by all actors in combination to determine whet her Dr. Hannah’s Title VII claims for discrimination, retaliation an d hostile work environment against NSU could survive summary judgment. In contrast, Defendant s-Appellants’ liability and their “entitlement to qualified immunity[ ] turn on an individual assessme nt 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 deny ing the Officers qualified immunity”); Handt v. Lynch , 681 F.3d 939, 945 (8th Ci r. 2012) (remanding for the dist rict court to “analyze whether the facts pertaining to each defendant” show entitle ment to qualified immunity).8 For example, in the current amended complaint, 3 Dr. Hannah alleges his § 1981 rights were violated because “[t]he defendants unf airly 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 “empl oyment discrimination on the basi s 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 Defend ants-Appellants’ qualified immunity defenses was to “determine which facts a jury c ould reasonably find from the evidence” and whether those facts “suffice to show a . . . violation” of § 19 81 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 de fendant-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 lia ble under Title VII based on the combined actions of the individual actors. C ONCLUSION Because Dr. Hannah’s § 1981 claim in his first amended complain t 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 al legations in an amended complaint properly asserting a § 1983 clai m and nothing in this decisi on is intended to usurp the district court’s role in asse ssing 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 lia bility. Aplt. App., Vol. V at 360.9 dismiss that claim and to provide Dr. Hannah the opportunity to am end the complaint to add a § 1983 claim premised on an alle ged violation of his § 1981 rights. Entered for the Court

Carolyn B. McHugh Circuit Judge