IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60116

KENNETH M. JONES, 

 Plaintiff – Appellee,

v.

THE MISSISSIPPI SECRETARY OF STATE DELBERT HOSEMANN, 

Individually and in His Official Capacity; CARLA THORNHILL, Individually 

and in Her Official Capacity; DOUG DAVIS, Individually and in His Official 

Capacity; KIM TURNER, Individually and in Her Official Capacity,

 Defendants – Appellants.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:18-CV-281

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

Kenneth Jones worked for the Mississippi Secretary of State before being 

denied a promotion and ultimately terminated. He challenged both adverse 

employment decisions. In relevant part, the district court denied the 

defendants’ motion to dismiss Jones’s claims under 42 U.S.C. § 1983. Three 

individual defendants appealed. We reverse. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2020

Lyle W. Cayce

Clerk

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I.

Jones is an African-American man who worked as a Lobbying 

Compliance Officer for the Mississippi Secretary of State. After working there 

for nearly ten years, he applied to become the Director of Compliance. He 

interviewed but was told he was not the “right fit.” The person hired was white

and had significantly less career experience and education.

Jones filed a complaint with the United States Equal Employment 

Opportunity Commission (“EEOC”). The EEOC found there was reasonable 

cause to believe that the Secretary of State’s office violated Title VII of the Civil 

Rights Act. Within a couple months of the EEOC’s determination, someone 

reported that Jones violated the Secretary of State’s office policy by being in 

the building after hours. An investigation ensued, and Jones was fired. He 

subsequently brought this suit. 

In Jones’s complaint, he alleged that defendants Doug Davis, Kim 

Turner, and Carla Thornhill—all employees in the Secretary of State’s office—

“conspired, colluded, and collaborated to deny” him the promotion.

Additionally, Jones said that the investigation into his violation of office policy

was “pre-textual” and that his eventual termination was retaliation for his 

EEOC complaint. Jones brought several claims against the Mississippi 

Secretary of State, the Secretary of State’s office, and the three employees

(Davis, Turner, and Thornhill).

The defendants filed a motion to dismiss, which the district court granted 

in part and denied in part. The district court allowed the following claims to 

proceed: (1) Jones’s claims against the Secretary of State’s office for 

employment discrimination and retaliation under Title VII of the Civil Rights 

Act; (2) Jones’s claims against the three individual employees for racially 

discriminatory contracting practices under 42 U.S.C. § 1981; and (3) Jones’s 

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constitutional claims alleging that the three individual employees violated his 

First and Fourteenth Amendment rights, see 42 U.S.C. § 1983.

The three individual defendants appeal only the district court’s denial of 

their motion to dismiss Jones’s § 1983 claims. Since the defendants raised the 

defense of qualified immunity, we have jurisdiction to review the court’s 

rulings on the § 1983 claims de novo. See Ashcroft v. Iqbal, 556 U.S. 662, 675 

(2009). We express no view on Jones’s Title VII or § 1981 claims.

II.

On appeal, the individual defendants do not allege that the district court 

erred in applying the familiar two-step framework to assess qualified 

immunity. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). Instead, the 

employees argue that Jones’s complaint does not “contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)); see FED. R. CIV. P. 8(a)(2).

When appellants argue that a plaintiff has failed to state a claim for 

relief as required by Federal Rule of Civil Procedure 8(a)(2), the “sufficiency of 

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

implicated by the qualified-immunity defense.” Iqbal, 556 U.S. at 673 (internal 

quotation marks and citations omitted). We must “tak[e] note of the elements 

a plaintiff must plead to state a claim . . . against officials entitled to assert the 

defense of qualified immunity.” Id. at 675. Jones failed to carry his burden 

here.

A.

First, Jones argues that the three employees violated the Fourteenth 

Amendment by unconstitutionally discriminating against him on account of 

his race. We have analogized § 1983 discrimination claims made by public 

employees (like Jones) to similar claims made under Title VII. See Lauderdale 

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v. Tex. Dep’t. of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007). In doing 

so, we have stated that invidious discriminatory intent can be shown in the 

same way under § 1983 as under Title VII—by either direct or circumstantial 

evidence. See Lee v. Conecuh Cty. Bd. of Ed., 634 F.2d 959, 961–62 (5th Cir. 

1981); Giles v. City of Dallas, 539 F. App’x 537, 543 (5th Cir. 2013) (per curiam). 

Both Jones and the district court proceeded on the assumption that his 

claim would be akin to a Title VII circumstantial evidence claim. And to make 

such a claim, a plaintiff would need to show that “he (1) was a member of a 

protected group; (2) was qualified for his position; (3) suffered an adverse 

employment action; and (4) received less favorable treatment than similarly 

situated individuals outside of his protected group.” Giles, 539 F. App’x at 543.

So, proceeding on the assumption that Jones’s claim against the individual 

employees was just like a Title VII claim, the district court denied the 

employees’ motion to dismiss because Jones’s complaint contains allegations 

along these Title VII lines.

But Title VII and § 1983 are different in at least one important way. See, 

e.g., Sims v. City of Madisonville, 894 F.3d 632, 640–41 (5th Cir. 2018) (per 

curiam). Critically, “[u]nlike Title VII, § 1983 applies to individuals.” Id. at 

640. And since § 1983 applies to individuals, we must be keenly aware of what 

§ 1983 requires before plaintiffs can seek relief from individuals—namely 

individual causation. See id.

In a § 1983 claim, the Supreme Court has told us that “a plaintiff must 

plead that each Government-official defendant, through the official’s own 

individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676

(emphasis added); see id. at 683 (holding that defendants cannot be held liable 

“unless they themselves acted on account of a constitutionally protected 

characteristic” (emphasis added)). Only when those individual actions 

“proximately cause[]” the plaintiff’s injury can that plaintiff seek relief under 

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§ 1983. County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1548 (2017) (citing 

Heck v. Humphrey, 512 U.S. 477, 483 (1994)); see also Sims, 894 F.3d at 639 

(noting that “individual liability for a government official who violates 

constitutional rights . . . turns on traditional tort principles of ‘but-for’ 

causation”).

Requiring a plaintiff to plead individual causation in § 1983 suits makes 

sense. After all, § 1983 “create[d] a species of tort liability.” Heck, 512 U.S. at 

483 (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)). 

The Supreme Court routinely looks to “the common law of torts,” id., to 

“determine the elements of, and rules associated with, an action seeking 

damages for [a constitutional] violation.” Manuel v. City of Joliet, 137 S. Ct. 

911, 920 (2017). And it goes without saying that a fundamental element of 

common-law torts is causation. See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

570 U.S. 338, 346 (2013) (“Causation in fact—i.e., proof that the defendant’s 

conduct did in fact cause the plaintiff’s injury—is a standard requirement of 

any tort claim.”).1 It is not enough for a plaintiff to simply allege that 

something unconstitutional happened to him. The plaintiff must plead that 

each defendant individually engaged in actions that caused the 

unconstitutional harm.

Thus, while the prima facie elements of a Title VII claim may establish 

an employer’s liability for intentional discrimination, a § 1983 plaintiff must 

additionally plead and prove which actions of the individual defendant caused 

the harm. Sims, 894 F.3d at 641 (“That individual liability turns on traditional 

tort principles of whether the particular act was a ‘causal link’ in the 

1 The Supreme Court has articulated different ways that plaintiffs must “plead and 

prove” the “causal connection” for different constitutional harms. Nieves v. Bartlett, 139 S. 

Ct. 1715, 1722 (2019). But the requirement of pleading and eventually proving causation in 

§ 1983 endures. See id. at 1723 (discussing how different cases account for the “problem of 

causation”).

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termination.”); cf. Iqbal, 556 U.S. at 676 (“[Plaintiffs] must plead and prove 

that the defendant[s] acted with discriminatory purpose.” (emphasis added)); 

Lee, 634 F.2d at 960 (“[Plaintiff] alleges that defendants Conecuh County 

Board of Education, its members, and the Superintendent of Schools . . . 

repeatedly fail[ed] to promote him to a principalship because of his race.”).2

Turning now to Jones’s complaint, it is plainly inadequate under § 1983 

because he does not make any allegations about the particular actions of the 

individual employees. Jones states that he interviewed for a promotion and 

“that he was not selected for the job.” But he does not allege that the three 

individual employees were the ones who interviewed him, rejected him, or 

selected someone else for the job. Instead, Jones uses the passive voice and 

says that a “white male” with fewer qualifications and less experience “was

ultimately hired.” Jones also alleges that “[t]he only reason given for his nonselection was that he was not the ‘right fit.’” But Jones does not allege that 

any of the three individual employees gave this allegedly false reason.

The one allegation Jones does include is that the three individual 

employees “conspired, colluded, and collaborated to deny” him the promotion.

But as the Supreme Court counseled in Twombly, the “naked assertion of 

conspiracy” without “factual enhancement” is generally inadequate. 550 U.S. 

at 557. By not alleging any particular actions taken by the individual 

defendants, Jones has failed to adequately state a § 1983 race-discrimination 

claim upon which relief can be granted. FED. R. CIV. P. 8(a)(2); Iqbal, 556 U.S. 

at 676.

2 We respectfully disagree with the dissenting opinion’s view that the rule of 

orderliness compels a different result. We are simply following the Supreme Court’s 

command that a § 1983 complaint must include allegations that each individual defendant, 

through “th[at] official’s own individual actions, has violated the Constitution.” Iqbal, 556 

U.S. at 676. And the dissent’s own authorities appear consistent with that rule; in each case, 

the defendant was alleged to have personally caused a constitutional harm.

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B.

Second, Jones brings a First Amendment retaliation claim under § 1983.

To successfully bring such a claim as a public employee, Jones must show 

“(1) he suffered an adverse employment action; (2) he spoke as a citizen on a 

matter of public concern; (3) his interest in the speech outweighs the 

government’s interest in the efficient provision of public services; and (4) the 

speech precipitated the adverse employment action.” Wilson v. Tregre, 787 F.3d 

322, 325 (5th Cir. 2015). And since this is a § 1983 claim against individual 

defendants, Jones must plead that the individual defendants’ “animus against 

[his] exercise of First Amendment rights is a link in the causal chain that [led]

to [his] firing.” Sims, 894 F.3d at 639; cf. Nieves, 139 S. Ct. at 1722 (“To prevail 

on such a claim, a plaintiff must establish a causal connection between the 

government defendant’s retaliatory animus and the plaintiff’s subsequent 

injury.” (internal quotation marks omitted)).

Jones pleaded that after he lost out on the promotion, he filed a claim 

with the EEOC. The EEOC began investigating. But then someone reported 

Jones for being in the Secretary of State’s office building too late. So, the three 

individual defendants “initiated an investigation into the reason why [he] was 

in the building after hours.” Jones claims this investigation was “a pre-textual 

means” to fire him because the defendants “were aware” of the real reason he 

was in the office after hours.

Additionally, Jones claims that on October 11, 2017, the EEOC officially

concluded its review and denied the Secretary of State’s request for 

reconsideration. The very next day, October 12, Jones received a notice that 

the Secretary of State’s office intended to discipline him. On October 24, the 

three individual defendants held a hearing, and Jones was fired on October 30.

He claims this was “in retaliation for his filing of [his] EEOC claim.” Again, we 

express no view on whether Jones stated a claim under Title VII.

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The issue before us is whether the individual defendants violated the 

First Amendment by firing him based on an alleged “animus” toward his First 

Amendment activity (the filing of his EEOC claim). And on that question, 

Jones alleges nothing. Though the district court seemed to find the sequencing 

of events leading up to his firing sufficient, that allegation alone is not enough 

in this case to infer that each individual defendant acted with a retaliatory 

“state of mind.” Iqbal, 556 U.S. at 683; cf. Swanson v. Gen. Servs. Admin., 110 

F.3d 1180, 1188 n.3 (5th Cir. 1997). As a result, the sequencing is “merely 

consistent with” the defendants’ liability, but “stops short of the line between 

possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557).

His other allegations similarly fall short. In order to survive a motion to 

dismiss, Jones needed to do more than use “labels and conclusions” or “a 

formulaic recitation of the elements of [his] cause of action.” Twombly, 550 U.S. 

at 555. But all Jones alleges is that the individual defendants acted with 

“pretext” and “in retaliation.” Those are purely legal conclusions. Jones does 

not add “factual content” to these allegations, such as his alleged real reason

for being in the office after hours, why defendants would have known this real 

reason, or any other indicia of the defendants’ animus. Iqbal, 556 U.S. at 678.

Such factual content could allow the court to “infer more than the mere 

possibility of misconduct” by the defendants. Id. Instead, Jones’s complaint is 

“[t]hreadbare.” Id. The Federal Rules of Civil Procedure demand more. Id. 

* * *

The district court’s denial of the motion to dismiss Jones’s § 1983 claims 

is REVERSED.

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JENNIFER WALKER ELROD, Circuit Judge, dissenting: 

Because the majority opinion deviates from this court’s precedent by 

announcing a new standard for sufficiently pleading a § 1983 claim—in 

contravention of the rule of orderliness—I must respectfully dissent. 

* * *

We have held on numerous occasions that the elements of a prima facie

case of employment discrimination under § 1983 are the same as those under 

Title VII. E.g., Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir. 2018) (“[A]lthough 

Mitchell’s wage-discrimination claim was brought under § 1983, his claim 

should be analyzed under the doctrinal framework applicable to wagediscrimination cases brought under Title VII.”); Giles v. City of Dallas, 539 F. 

App’x 537, 543 (5th Cir. 2013) (“In adjudicating Title VII claims of racial 

discrimination, we apply the . . . same framework [as we do] in adjudicating 

claims brought under . . . §§ 1981 and 1983 alleging racial discrimination in 

violation of the Equal Protection Clause.”); Davis v. Dallas Indep. Sch. Dist., 

448 F. App’x 485, 491 (5th Cir. 2011) (“Because a claim of racial discrimination 

under Section 1983 is essentially the same as such a claim brought under Title 

VII, our analysis with respect to [the plaintiff’s] discrimination and retaliation 

claims applies with equal force to both causes of action.”) (internal quotation 

marks omitted); Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 

166 (5th Cir. 2007) (“Section 1983 and [T]itle VII are parallel causes of action. 

Accordingly, the inquiry into intentional discrimination is essentially the same 

for individual actions brought under sections 1981 and 1983, and Title VII.”) 

(internal quotation marks and citations omitted); Irby v. Sullivan, 737 F.2d 

1418, 1431 (5th Cir. 1984) (“We have held that when section 1983 is used as a 

parallel remedy with Title VII in a racial discrimination suit the elements of a 

cause of action are the same under both statutes . . . .”) (internal quotation 

marks omitted); Lee v. Conecuh Cty Bd. of Educ., 634 F.2d 959, 962 (5th Cir. 

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Jan. 1981) (holding that for § 1983 cases alleging racially motivated 

employment discrimination, pleading the elements of a Title VII claim 

“represent one means by which a plaintiff may establish a prima facie case”) 

(emphasis added); Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 

1980) (“Insofar as [§ 1983] is used as a parallel remedy for transgression of 

section 1981 and . . . Title VII rights, the elements of the causes of action do 

not differ from those [applicable to a Title VII suit].”); see also Sorlucco v. 

N.Y.C. Police Dep’t, 888 F.2d 4, 7 (2d Cir. 1989) (explaining that “[i]n a claim 

arising under Title VII or section 1983, a plaintiff . . . has the initial burden of 

establishing a prima facie case of discrimination” and that “[s]he may satisfy 

this burden by” pleading the Title VII elements); Briggs v. Anderson, 796 F.2d 

1009, 1021 (8th Cir. 1986) (listing the elements of a Title VII case and noting 

that “[t]he inquiry into intentional discrimination is essentially the same for 

individual actions brought under §§ 1981 and 1983”); Matory v. Mason, No. 

3:16-CV-989, 2018 WL 6493874, at *5 (S.D. Miss. Dec. 10, 2018) (“When a 

plaintiff brings claims under Title VII and § 1983 premised on the same set of 

facts, the court evaluates both claims under the standard governing Title VII 

actions.”).1

The district court determined that Jones had adequately met the 

pleading threshold for his § 1983 claim based on his allegations establishing 

the Title VII elements. Indeed, the defendants conceded that Jones had 

properly perfected his Title VII claim against the Mississippi Secretary of 

1 Under our settled precedent, “one panel of our court may not overturn another 

panel’s decision, absent an intervening change in the law, such as by a statutory amendment, 

or the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 

375, 378 (5th Cir. 2008). But the majority opinion does not indicate that an intervening 

Supreme Court decision or 5th Circuit en banc decision has overturned this court’s wellestablished rule that a court evaluates a § 1983 claim under the same standard governing 

Title VII actions.

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State, further suggesting that Jones had adequately pled his § 1983 claims. 

That is not good enough for the majority opinion, however. Apparently, in 

addition to the Title VII elements, Jones needed to specifically plead which 

actions of the individual defendants caused him harm—an individualcausation requirement, as the majority opinion styles it. But none of the cases 

mentioned above say anything about individual causation. In Whiting v. 

Jackson State University, for example, which involved Title VII, § 1981, and 

§ 1983 claims against a university and its president, this court walked through 

each of the Title VII elements—and only those elements—and concluded that 

the plaintiff had established a prima facie case under Title VII. 616 F.2d at 

124. “Consequently,” it held, “section 1983 relief for an equal protection 

violation is appropriate . . . .” Id. 

As support for its new addition, the majority opinion cites to our decision 

in Sims v. City of Madisonville, 894 F.3d 632, 640 (5th Cir. 2018). That case, 

however, says nothing about grafting an entirely new individual-causation 

requirement onto the Title VII elements when evaluating a § 1983 claim. Sims 

mentioned Title VII only with regard to explaining the cat’s paw theory of 

imputed liability, the idea that in the workplace context, the employer may be 

liable for the animus of a supervisor not charged with making final 

employment decisions. See Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011). 

This is what we said in Sims: 

[Other cases] have mistakenly characterized the question as 

whether the nondecisionmaker can be liable under a cat’s paw 

theory of imputed liability. That turns cat’s paw liability on its 

head, and is another example of relying on the law of employer 

liability for a question of employee liability. As “cat’s paw” liability 

arose under Title VII in which only employers can be liable, it is 

not about the liability of individual employees. It is instead about 

whether the employers who are subject to Title VII liability can be 

held liable by imputing to those entities the unlawful motives of 

employees who are not final decisionmakers. Unlike Title VII, 

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section 1983 applies to individuals. So the question is not whether 

the metaphorical paw . . . is liable for carrying out the ill-motivated 

actions of the metaphorical cat . . .; it is whether the cat itself can 

be liable for having unlawful motives that caused the firing. That 

individual liability turns on traditional tort principles of whether 

the particular act was a “causal link” in the termination.

Sims, 894 F.3d at 640–41 (internal citations and emphasis omitted). 

Sims referenced Title VII and causation only with respect to addressing 

the proper use of cat’s paw liability. Though causation is relevant to the § 1983 

analysis, Sims in no way overturns decades of Fifth Circuit precedent 

establishing that a § 1983 plaintiff need plead only the Title VII elements to 

sufficiently state a claim. 

Even if, assuming arguendo, individual causation is a further element in 

the Title VII scheme—an element that has seemingly gone unidentified by this 

court for more than thirty years—Jones has adequately pled the individuals’ 

link to his termination. According to his complaint, the three individuals knew

the reason for Jones’s being in the office after hours, yet they pursued an 

investigation anyway. He alleges that the investigation was simply pretext for 

his subsequent firing. Moreover, Jones received notice that the disciplinary 

committee—headed by the three individual defendants—was proceeding with 

a hearing the very day after the EEOC denied the Secretary of State’s request 

for reconsideration of the agency’s determination that reasonable cause existed 

to believe that Jones had been discriminated against. At the hearing, Jones 

was fired, which he contends was in retaliation for his filing of the EEOC claim. 

If not for the defendants’ instigation of the investigation, Jones arguably 

would not have been fired. That adequately ties the defendants to his

termination. See id. at 641 (“That individual liability turns on traditional tort 

principles of whether the particular act was a ‘causal link’ in the 

termination.”). For that reason, the majority opinion’s citation to Ashcroft v. 

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Iqbal, 556 U.S. 662 (2009), is similarly unpersuasive. It notes the 

uncontroversial proposition that defendants cannot be held liable “unless they 

themselves acted on account of a constitutionally protected characteristic.” See 

Iqbal, 556 U.S. at 683. But Jones has pleaded that the three defendants did 

act on account of a constitutionally protected characteristic. His evidence? 

They sought his termination by initiating an investigation into an after-hours 

violation—a violation for which Jones had provided an explanation—and only 

proceeded with a disciplinary hearing after receiving notice that the EEOC 

denied the Secretary of State’s request for reconsideration. Jones was informed 

that disciplinary action could result in a “written reprimand, suspension 

without pay, demotion, or termination.” Out of those four options, the 

defendants chose termination. 

As the district court noted, this is only the motion-to-dismiss stage. My 

belief that Jones has done enough, at this stage, to “nudge[] [his] 

claims . . . across the line from conceivable to plausible,” id. at 680 (second 

alteration in original), says nothing about Jones’s ability to succeed at 

summary judgment or at trial. And all of this is ignoring the fact that our case 

law does not even demand the pleading of a causation requirement in the first 

place. 

Finally, even if Jones failed to plausibly plead causation, the proper 

remedy would be remand, not dismissal. The majority opinion has articulated 

a new rule: a § 1983 plaintiff must plead individual causation in addition to 

the normal Title VII elements. In such a circumstance, Jones should have the 

opportunity to meet this new standard by filing an amended complaint. 

Otherwise, we would be punishing a plaintiff for rightly following decades of 

our precedent. Because of that and the foregoing reasons, I respectfully dissent. 

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