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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 19-60116                        March 27, 2020
                                                                           Lyle W. Cayce
KENNETH M. JONES,                                                               Clerk


              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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 19-60116
                                         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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                                    No. 19-60116
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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                                  No. 19-60116
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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                                      No. 19-60116
§ 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


       1The 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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                                      No. 19-60116
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 non-
selection 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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                                  No. 19-60116
                                        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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                                  No. 19-60116
      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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                                  No. 19-60116
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 wage-
discrimination 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 well-
established rule that a court evaluates a § 1983 claim under the same standard governing
Title VII actions.
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                                    No. 19-60116
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 individual-
causation 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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