                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 January 14, 2011
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    NIT DASGUPTA,

              Plaintiff-Appellee,

    v.                                                 No. 09-6277
                                                (D.C. No. 5:08-CV-00546-R)
    KATHY HARRIS; JAMES BOWEN;                         (W.D. Okla.)
    STEVE LOHMANN; PAUL BERAN,
    in their individual and official
    capacities,

              Defendants-Appellants,

    and

    BOARD OF REGENTS FOR
    OKLAHOMA COLLEGES;
    NORTHWESTERN OKLAHOMA
    STATE UNIVERSITY; LEROY
    BURKS,

              Defendants.


                            ORDER AND JUDGMENT *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



      Kathy Harris, James Bowen, Steve Lohmann, and Paul Beran appeal the

district court’s denial of their motion for qualified immunity with regard to

Nit Dasgupta’s 42 U.S.C. § 1981 claims of intentional race discrimination arising

out of the nonrenewal of his employment contract. Exercising only limited

jurisdiction in this interlocutory appeal, we dismiss the portions of the appeal

over which we do not have jurisdiction; affirm the denial of qualified immunity to

Dr. Harris, Dr. Bowen, and Dr. Lohmann; and reverse the denial of qualified

immunity to Dr. Beran.

                                  I. Background

      Mr. Dasgupta, who is of Asian Indian origin and ethnicity, was an assistant

professor of business at Northwestern Oklahoma State University. His immediate

supervisor was Dr. Harris, who was the Chair of the Department of Business,

E-Commerce, and Agriculture. Dr. Harris reported to the Dean of the School of

Professional Studies, Dr. Bowen; Dr. Bowen reported to the Vice President of

Academic Affairs, Dr. Lohmann; and Dr. Lohmann reported to the President of

the University, Dr. Beran.

      Mr. Dasgupta was employed pursuant to a yearly contract for each of the

2003-04, 2004-05, and 2005-06 academic years. Each appellant participated in


                                         -2-
hiring him, either recommending the university offer him a contract or approving

the recommendation. For the first two contract years, there were no problems.

According to appellants, however, in the fall semester of 2005, Mr. Dasgupta

began acting erratically. They point to several events they considered unusual,

including Mr. Dasgupta sleeping in his office overnight, leaving late-night

messages on Dr. Harris’s office voice mail, and leaving a letter containing

inappropriate comments for Dr. Harris under her office door. They also state that

a female student complained of feeling harassed by e-mail and telephone contacts,

and that Mr. Dasgupta was instructed not to contact that student and not to

contact any student after 9 p.m. Ultimately, Dr. Harris, Dr. Bowen, and

Dr. Lohmann recommended that Dr. Beran not renew Mr. Dasgupta’s contract for

the 2006-07 academic year. Dr. Beran agreed with the recommendation and

issued a notice of nonrenewal. Because his contract was not renewed and he was

not employed by the university after the end of the spring 2006 semester,

Mr. Dasgupta also was denied the opportunity to teach classes during the summer

2006 interim session.

      Alleging discrimination on the basis of race and national origin and

retaliation, Mr. Dasgupta brought suit under § 1981, 42 U.S.C. §§ 1983 and 1985,

Title VII of the Civil Rights Act of 1964, and state law. Appellants moved for

summary judgment. Mr. Dasgupta responded in opposition, attaching an affidavit

that denied the occurrence of many of the events identified by appellants (such as

                                        -3-
sleeping in his office, writing a disturbing letter to Dr. Harris, and harassing a

female student) and denied having these issues being brought to his attention by

appellants. He stated that Dr. Harris had encouraged him to communicate freely

with her by e-mail or voice mail and that he left late-night messages on her voice

mail because she had indicated that she needed his feedback urgently.

      His affidavit also stated that Dr. Harris had “told [him] that [he] was

considered expensive as an Asian Indian by the administration during [his] Spring

annual evaluation meetings with her in Spring 2005 and Spring 2006,” and that

“[s]he commented that she and the administration considered me expensive for

my Asian Indian ethnicity [a]nd [another Asian Indian employee] was saving

them money.” Aplt. App., Vol. IV at 614, 616; see also id. at 621. Mr. Dasgupta

contended that, at a February 2010 meeting in his office, Dr. Bowen raised the

issue of certain additional compensation Mr. Dasgupta had requested:

      Defendant Bowen compared me to the other faculty member who
      shared my Asian Indian ethnicity . . . [who] worked in the same
      [Business, E-Commerce, and Agriculture] department as me and was
      being paid a lesser salary than that required by the official salary
      schedule. Bowen advised me not to pursue the requested overload
      payments and cooperate [u]ncomplainingly to accept similar unequal
      terms of lesser pay for more work obediently without being
      insubordinate, just like [the other employee] obeyed. I complained
      to Bowen that this is discrimination against the two minority non
      white faculty in the department based on racial and ethnic
      characteristics that this faculty cannot control.

Id. at 616. And Mr. Dasgupta alleged that the copy of his evaluation before him

on February 17, 2006, was different from the copy he was given on May 31, 2006.

                                          -4-
      The district court granted defendants’ motion as to the bulk of the claims.

But noting Mr. Dasgupta’s affidavit, the district court concluded that for his

§ 1981 claims regarding the nonrenewal of his contract and the denial of the

summer teaching opportunity, he had produced sufficient evidence that

appellants’ nondiscriminatory reason was a pretext for discrimination. As a

result, the district court denied qualified immunity on those two claims. 1

Appellants brought this interlocutory appeal challenging this denial of qualified

immunity.

                                    II. Analysis

A. Jurisdiction and Standard of Review

      This court has jurisdiction to consider 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). “[I]f 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) (quotation

and alteration omitted). But “we are not at liberty to review a district court’s

factual conclusions, such as the existence of a genuine issue of material fact for a


1
       The district court also denied summary judgment on a state-law claim of
tortious interference, but that claim is not at issue in this appeal.

                                         -5-
jury to decide, or that a plaintiff’s evidence is sufficient to support a particular

factual inference.” Buck v. City of Albuquerque, 549 F.3d 1269, 1276 (10th Cir.

2008) (quotation and emphasis omitted); see also Johnson, 515 U.S. at 313.

      This court sua sponte ordered the parties to brief the issue of appellate

jurisdiction. After the parties responded, the jurisdictional question was referred

to this panel. As discussed below, appellants identify questions of law that we

have jurisdiction to consider. Accordingly, we decline to dismiss the entire

appeal for lack of jurisdiction. But appellants do raise some arguments that

appear to attack the factual record; particularly, that the court should disregard

Mr. Dasgupta’s affidavit. Because we consider this argument to be one

concerning evidence sufficiency, we dismiss it for lack of jurisdiction. 2

      Our review of the district court’s denial of summary judgment based on

qualified immunity is de novo. See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir.

2010). In analyzing appellants’ arguments, we view the evidence in the light

most favorable to Mr. Dasgupta. See Deutsch v. Jordan, 618 F.3d 1093, 1099

(10th Cir. 2010).

2
       Appellants invoke an exception noted by Lewis v. Tripp, 604 F.3d 1221
(10th Cir. 2010), and argue that the court can disregard Mr. Dasgupta’s affidavit
because it “is blatantly contradicted by the record.” Aplt. Br. at 27. But as
support for the “blatant contradiction” exception, Lewis cited Scott v. Harris,
550 U.S. 372, 380 (2007). See Lewis, 604 F.3d at 1226. In Scott, a videotape of
the relevant events contradicted the plaintiff’s account, and thus his “version of
events is so utterly discredited by the record that no reasonable jury could have
believed him.” 550 U.S. at 380. These circumstances are not sufficiently close to
Scott to support applying the “blatant contradiction” exception.

                                           -6-
B. Qualified Immunity

      To overcome appellants’ assertion of qualified immunity, Mr. Dasgupta

must show (1) appellants violated his rights under § 1981, and (2) those rights

were clearly established at the time appellants acted. See Clark, 625 F.3d at 690;

see also Deutsch, 618 F.3d at 1099. Appellants argue that Mr. Dasgupta has not

established either factor. With regard to the violation factor, they assert that he

has not shown the required element of purposeful discrimination by each and

every appellant. In connection with this argument, they raise three legal

questions that we have jurisdiction to consider: that (1) the relevant issue is their

honest beliefs at the time, not the actuality of what occurred; (2) they are entitled

to the benefit of the “same actor” inference; and (3) the district court did not

make any findings regarding each appellant’s intentional discrimination. With

regard to the “clearly established” factor, appellants present the immediately

appealable legal issue of whether the law was clearly established.

      1. Intentional Discrimination

      “Section 1981 prohibits racial discrimination in ‘the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.’” Reynolds v.

Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995) (quoting 42 U.S.C.

§§ 1981(a), (b)). “To make out a claim under § 1981, [plaintiff] must show that

Defendants intentionally or purposefully discriminated against [him].” Id.

                                         -7-
      Appellants first argue that what is relevant is not what actually happened,

but what they honestly believed to have happened at the time they acted. See,

e.g., Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (“[T]he relevant

inquiry is not whether the employer’s proffered reasons were wise, fair or correct,

but whether it honestly believed those reasons and acted in good faith upon those

beliefs.” (quotation omitted)). Thus, they contend, even if Mr. Dasgupta did not

sleep in his office, did not write the letter that bothered Dr. Harris, and did not

harass a female student, they are still entitled to qualified immunity, because they

honestly believed that he did those things.

      It appears, however, that this argument was not raised before the district

court. Appellants do not identify where they raised it, see 10th Cir. R. 28.2(C)(2)

(“For each issue raised on appeal, all briefs must cite the precise reference in the

record where the issue was raised and ruled on.”), and we do not see where it was

raised. Accordingly, we will not consider the argument. See Rosewood Servs.,

Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005)

(holding that arguments not raised in the district court are waived on appeal).

      Appellants also argue that because they recommended and approved hiring

Mr. Dasgupta, they are entitled to the benefit of the “same actor” inference. See

Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (“[I]n

cases where the employee was hired and fired by the same person within a

relatively short time span, there is a strong inference that the employer’s stated

                                          -8-
reason for acting against the employee is not pretextual.” (quotations and footnote

omitted)). This inference, however, is of limited utility in situations such as this,

where Mr. Dasgupta avers that appellants discriminated against him because he

did not conform to a preconceived notion that Asian Indians could be paid less for

doing the same or more work. As the Seventh Circuit has stated, “[t]he

psychological assumption underlying the same-actor inference may not hold true”

where the hiring person acts with beliefs or stereotypes about how the employee

should behave, but the employee does not conform to those expectations.

Johnson v. Zema Sys. Corp., 170 F.3d 734, 745 (7th Cir. 1999). There, the court

concluded:

      [The plaintiff] is able to rebut whatever inference arises from the fact
      that the same person both hired and fired him. [He] produces
      sufficient evidence of racial bias during his employment to suggest
      that when [the owner] hired him, he expected [the plaintiff] to
      comply with the race-based limitations of the job. The evidence
      suggests that when [the plaintiff] failed to comply with these
      limitations, he was fired.

Id.; see also Antonio, 458 F.3d at 1183 (stating that despite the “same actor”

inference, “[t]he plaintiff still has the opportunity to present countervailing

evidence of pretext”). As in Johnson, under these circumstances Mr. Dasgupta

has rebutted whatever inference arises from the fact that appellants originally

recommended and approved hiring him.

      Finally, appellants argue that the district court failed to make findings that

each of them intentionally discriminated against Mr. Dasgupta. This argument

                                          -9-
invokes an exception discussed in Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.

2010), in which this court stated:

      when the district court at summary judgment fails to identify the
      particular charged conduct that it deemed adequately supported by
      the record, we may look behind the order denying summary judgment
      and review the entire record de novo to determine for ourselves as a
      matter of law which factual inferences a reasonable jury could and
      could not make.

      The district court did identify specific facts concerning Dr. Harris’s and

Dr. Bowen’s participation in the events underlying the nonrenewal. Thus, as to

these appellants, the argument becomes one of evidence sufficiency rather than a

lack of findings. Under these circumstances, the exception is not satisfied and we

will not review the record de novo to determine for ourselves the possible factual

inferences. These appellants’ arguments are dismissed for lack of jurisdiction.

      The situation is not so clear for Dr. Lohmann. The district court did

identify some facts alluding to his participation in the events underlying the

nonrenewal, but these facts do not so clearly implicate racial discrimination.

Given this uncertainty, we have engaged in a de novo review of the record

regarding Dr. Lohmann’s conduct, and conclude that there is sufficient evidence

to support the district court’s decision to deny qualified immunity. Dr. Lohmann,

jointly with Dr. Harris and Dr. Bowen, recommended nonrenewal, and he

transmitted that recommendation to Dr. Beran. And Dr. Lohmann’s testimony is

essential to establish one of the events allegedly underlying the nonrenewal


                                         -10-
decision (that he found Mr. Dasgupta sleeping in his office and told him that he

could not live there). Mr. Dasgupta contradicted Dr. Lohmann’s testimony. A

jury could disbelieve Dr. Lohmann, and “evidence establishing the prima facie

case, along with the reasonable inferences drawn therefrom, coupled with a

disbelief of the employer’s explanation, can be sufficient to make” a finding of

discrimination. Miller v. Eby Realty Group, LLC, 396 F.3d 1105, 1111 (10th Cir.

2005). The denial of qualified immunity to Dr. Lohmann is affirmed.

      As for Dr. Beran, the district court identified only that he approved the

other appellants’ recommendation not to renew Mr. Dasgupta’s contract. This act

alone does not lead to an inference of intentional racial discrimination. And our

de novo review of the record does not reveal any other evidence that could lead a

reasonable jury to infer intentional racial discrimination by Dr. Beran.

Accordingly, we hold that the district court erred in denying Dr. Beran’s motion

for summary judgment. See Lewis, 604 F.3d at 1228-30; Serna v. Colo. Dep’t of

Corr., 455 F.3d 1146, 1153-54 (10th Cir. 2006). The denial of summary

judgment to Dr. Beran is reversed, and the matter is remanded with instructions to

grant summary judgment in favor of Dr. Beran on the § 1981 claims.

      2. Clearly Established Law

      The district court simply stated, without citation, that Mr. Dasgupta’s

§ 1981 “rights were clearly established in February 2006.” Aplt. App., Vol. IV at

799. On appeal, appellants complain that “[t]he district court overlooked any

                                        -11-
analysis of whether the law was sufficiently clear under the fact scenario faced by

the individually-named Defendants.” Aplt. Br. at 24. While they concede “that

the law is clearly established, in the broadest sense, that the individually-named

Defendants may not take an adverse employment action against Plaintiff based

upon his race/national origin,” they argue that “this broad generalized statement

of the law does not give any kind of guidance as to when government actors are

entitled to qualified immunity or not.” Id. at 25.

      Appellants mistakenly rely on their version of the facts, rather than the

facts in the light most favorable to Mr. Dasgupta. Particularly, they contend that

their honestly-held beliefs about his allegedly bizarre behavior should form part

of the “clearly established” calculus. But as discussed above, they did not raise

the honest-belief argument in the district court. And viewing the facts in the light

most favorable to Mr. Dasgupta, as we must, the evidence is that the majority of

these incidents never occurred.

      In evaluating a constitutional issue, this court recently explained when a

principle is “clearly established” for purposes of qualified immunity:

      The Supreme Court has held “a general constitutional rule already
      identified in the decisional law may apply with obvious clarity to the
      specific conduct in question, even though the very action in question
      has not previously been held unlawful.” Hope v. Pelzer, 536 U.S.
      730, 741 (2002) (quotations and alteration omitted). As this court
      has pointed out, “[t]he Hope decision shifted the qualified immunity
      analysis from a scavenger hunt for prior cases with precisely the
      same facts toward the more relevant inquiry of whether the law put
      officials on fair notice that the described conduct was

                                         -12-
      unconstitutional.” Casey v. City of Fed. Heights, 509 F.3d 1278,
      1284 (10th Cir. 2007) (quotations omitted).

Clark, 625 F.3d at 690. The same analysis applies here, where the alleged

violation involves a statutory right. This court decided well before 2006 that

employment discrimination on the basis of race violates § 1981. See Ramirez v.

Dep’t of Corr., 222 F.3d 1238, 1244 (10th Cir. 2000) (holding law to be clearly

established in 1996). We need not search for a case with precisely similar facts,

because we are convinced that by 2006, public officials had adequate notice that

deciding not to renew an employee’s teaching contract because of his race would

be in violation of his statutory rights.

      Thus, we agree with the district court that the law was clearly established at

the time of the events at issue in this case.

                                   III. Conclusion

      We DISMISS for lack of jurisdiction the portions of the appeal in which

appellants challenge the sufficiency of Mr. Dasgupta’s affidavit and the

sufficiency of the evidence as to discrimination by Dr. Harris and Dr. Bowen. We

AFFIRM the district court’s denial of qualified immunity to Dr. Harris,

Dr. Bowen, and Dr. Lohmann on Mr. Dasgupta’s § 1981 claims regarding the

nonrenewal of his contract and the denial of the opportunity to teach during the




                                           -13-
summer session. We REVERSE the district court’s denial of qualified immunity

to Dr. Beran on these claims. We REMAND with instructions to grant summary

judgment to Dr. Beran on the § 1981 claims and for further proceedings

consistent with this opinion.


                                                  Entered for the Court



                                                  Timothy M. Tymkovich
                                                  Circuit Judge




                                       -14-
