Felton v. Polles

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 01-60104
_____________________

CEASAR FELTON, Etc.; ET AL.,

Plaintiffs,

LYNDELL CARTER, On behalf of himself and as representative of a
class of all others similarly situated,

Plaintiff-Appellee,

versus

SAM POLLES, Etc.; ET AL.,

Defendants,

RANDALL MILLER, Colonel; TERRY THOMAS, Lieutenant,

Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of Mississippi

December 17, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge

For the alleged racially discriminatory conduct in state

employment extending through 15 years, the numerous issues in this

interlocutory appeal from a qualified immunity denial underscore

the importance of exacting application of each of the two parts

comprising the long-established test for ruling on such immunity:

(1) under existing law, does the plaintiff allege a violation of an
actual, clearly established constitutional or federal statutory

right; and (2) if so, was the defendant’s conduct objectively

unreasonable in the light of clearly established law at the time of

that conduct. The two principal issues at hand concern the first

prong.

First, can a state employee assert a claim against his

supervisor, in his individual capacity, for violation of 42 U.S.C.

§ 1981 (proscribes racial discrimination in “mak[ing] and

enforce[ment]” of contracts, including their “performance” and

“enjoyment of all benefits ... and conditions of the contractual

relationship”), when that § 1981 right has not been asserted

through 42 U.S.C. § 1983 (creating action against person who, under

color of state law, deprives another of constitutional or federal

statutory right)?

Second, in determining whether, under existing law, a

plaintiff has alleged the deprivation of a clearly established

constitutional or federal statutory right, what consideration is to

be accorded alleged unlawful conduct that occurred outside the

applicable limitations period?

Lyndell Carter’s supervisors, Lieutenant Terry Thomas and

Colonel Randall Miller, contend that Carter fails each prong of

qualified immunity analysis: that he does not state the

deprivation of a § 1981 or Fourteenth Amendment right against

2
racial discrimination in his state employment; and that he does not

show their conduct was objectively unreasonable.

This appeal is a classic example of the interplay — sometimes

conflicting — between Title VII, § 1981, § 1983, and, most

especially, qualified immunity in a racial discrimination action

brought by a state employee against his co-state employees and his

state employer. Likewise, it is a classic example of the care that

must be taken in framing and pursuing such an action employing

multiple theories of recovery. It is hoped this opinion’s

extensive treatment of this interplay will clear up some of the

confusion surrounding such actions.

Based upon our analysis of the numerous issues at hand, we

hold that Thomas and Miller, in their individual capacities, are

entitled to qualified immunity from Carter’s §§ 1981 and 1983

claims. REVERSED and REMANDED.

I.

Carter has been an employee of the Mississippi Department of

Wildlife, Fisheries, and Parks since 1985. Presenting federal and

state law claims, he and three others began this action in 1999

against, among others, Thomas and Miller (official and individual

capacities), and the Department. The federal claims — essentially

for race discrimination — were brought under: Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and §§ 1981

and 1983.

3
 Because of the multiple parties and claims in this action, it

is necessary to identify those involved in this interlocutory

appeal. It involves only Carter, Thomas, and Miller. It concerns

only the summary judgment denial of qualified immunity from the §§

1981 and 1983 claims against Thomas and Miller in their individual

capacities. (Although one of the three federal claims is pursuant

to Title VII, it is not at issue now.) In addition to the numerous

sub-issues pertaining here to qualified immunity vel non, and the

limitations on our jurisdiction because this is an interlocutory

appeal, this appeal is framed by quite a few factors present in

this action: numerous parties, claims, and district court rulings;

and, most especially, the 15-year period between the first of many

alleged acts of discrimination and this action’s being filed. In

order to address qualified immunity, these numerous factors must be

discussed.

For starters, three discrete time periods pertain to the §§

1981 and 1983 claims: (1) 1985 to 1992, when Carter was under

Thomas’ supervision; (2) 1992 to 1995, when Carter was promoted and

removed from Thomas’ supervision; and (3) 1995 to 1997, when Carter

was reassigned to Thomas’ supervision. Again, this action was not

filed until 1999. The following facts are from the summary

judgment record.

In 1985, Carter began with the Department as a Conservation

Officer in Grenada County; Thomas was his supervisor. At the end

4
of Carter’s mandatory one-year probationary period, Thomas

recommended him for permanent employment status with the

Department. Carter does not claim to have ever heard Thomas make

a racial slur throughout Carter’s state employment.

Nevertheless, Carter claims “racial opposition” by Thomas

until 1992, when Carter was promoted. For example, Carter alleges:

on his first day of employment in 1985, Thomas “[o]ccasionally ...

would turn around and roll his eyes at [Carter] trying to

intimidate [him]”; another supervisor told Carter “he knew there

would be major problems with hiring a black officer in Thomas’

district”; the division chief told Carter that Thomas “did not want

a black officer working in his district”; another officer advised

Carter that Thomas had ordered a background check performed on

Carter and had said “in a meeting ... he did not want any ‘niggers’

working in his district”; Appellant Miller, then a Hunter Safety

Coordinator (became Department’s Chief of Enforcement in 1993),

told Carter “he knew some of the things that ... Thomas ha[d] said

in [Miller’s] presence were racially motivated”; Carter “believe[s]

Thomas coordinated with a Highway Patrol Officer in Montgomery

County” to stop Carter for speeding; Thomas told Carter’s partner

he “did not want any ‘niggers’ at the funeral” of another officer’s

mother; and Thomas assigned Carter to “a remote area”, without

adequate backup, and refused to issue him new equipment. Each act

5
of alleged discrimination occurred well outside the applicable

three-year limitations period.

In 1992, Carter was promoted to Investigator, a position he

held until 1995. Although Carter was not then under Thomas’

supervision, Thomas allegedly informed Carter’s new supervisor of

“a complaint [against Carter] for stopping females in Montgomery

County and harassing them”. Again, this alleged incident is

outside the limitations period.

In 1995, the Investigative Division was disbanded. Carter was

reassigned to Grenada County, again under Thomas’ supervision.

Thomas maintains problems soon surfaced with Carter’s work

performance, stemming in part from a private business he had begun

operating while in the Investigative Division.

Thomas states: Carter missed a day of work without permission

in September 1995, apparently to attend an event for which his

business had a contract; co-workers complained Carter was handling

personal business while on duty; regularly, Thomas could not find

Carter at his post on Grenada Lake; during November 1995, Carter

put unusually high mileage on his vehicle, but wrote no hunting-

violation tickets; co-workers did not see Carter during a scheduled

duck-hunting detail on 2 December 1995; and, after reviewing the

Time-Attendance-Leave (TAL) records for the officers under his

command, Thomas discovered Carter had purchased a vehicle battery

with his state-issued fuel card, without prior permission and

6
despite, less than three months earlier, having purchased another

battery.

According to Thomas, in the light of the battery incident and

concerns over Carter’s job performance, Thomas and Miller (Chief of

Enforcement) agreed in January 1996 it would be appropriate to

review Carter’s credit card and TAL records. The review revealed

37 discrepancies concerning, in addition to the battery incident,

misusing a state telephone card and falsifying TAL records. Thomas

detailed the discrepancies in a 17 January 1996 memo to Miller; he

forwarded it to the Department’s legal counsel.

In July 1996, a hearing was held before the Department’s

Executive Director (a defendant granted qualified immunity by the

district court). Carter admitted misusing his telephone card. He

agreed to reimburse the State, received a written reprimand, and

was suspended for five days without pay.

Carter believes the investigation and suspension were racially

motivated. Concerning racial discrimination, he also states:

Thomas denied him leave on 3-4 July 1995, although it had been

approved by Carter’s prior supervisor; in January 1996 (the month

Carter’s credit card and TAL records were reviewed), an officer

overheard Thomas tell Miller, “I’m just about to get that nigger”;

and Thomas denied Carter leave for 23-24 March 1996, after having

approved it.

7
 Carter also claims racial discrimination in the denial of his

September 1996 application for a June 1997 Hunter Safety

Coordinator vacancy. In support, Carter notes that he outscored

the white applicant on the interview portion of the selection

process. (As discussed infra, the white applicant received a

higher total score, however, pursuant to the procedure utilized by

the State Personnel Board.)

Finally, in March 1997, Thomas gave Carter a low performance

evaluation, resulting in his being placed on a performance

improvement plan and postponing, for approximately one month, a

scheduled $300 annual wage increase. (As a result, Carter

apparently lost approximately $25.) Thomas maintains the

evaluation was low because of the above-mentioned: (1) inability

to contact Carter during duty hours; (2) low ticket issuance; (3)

erroneous TAL reporting; and (4) failure to return forms.

In June 1997, shortly after the performance evaluation, Carter

was removed from Thomas’ supervision and transferred to that of

another officer.

In March 1999, two years after the low evaluation given

Carter, he and another filed this putative class action against the

Department, Thomas, Miller, and five other named defendants, as

well as 20 unknown defendants, presenting federal and state law

claims and seeking declaratory, injunctive, and monetary relief.

The complaint, as amended that May, also involved claims by two

8
other named plaintiffs (total of four). The plaintiffs never

sought class certification.

In addition to two state law claims, the following federal

claims were presented: Count 1, “race discrimination”, in

violation of § 1981; Count 2, “den[ial of] ... employment and

promotion opportunities because of ... race”, in violation of Title

VII; and, Count 3, “violat[ion of] constitutional rights ...

secured pursuant to the 5th Amendment and 14th Amendment”, brought

under § 1983. Therefore, unlike the final count, the § 1981 claim

(Count 1) was not brought pursuant to § 1983.

Thomas, Miller, and the five other individual defendants, in

their individual capacities, moved to dismiss under FED. R. CIV. P.

12 (b)(6) (failure to state claim) or, in the alternative, for

summary judgment, claiming, inter alia, qualified immunity.

Through an extremely comprehensive and detailed opinion, qualified

immunity was granted to all but Thomas and Miller. Felton v.

Polles, No. 3:99CV200LN, at 13 (S.D. Miss. 14 Jan. 2000) (Felton

I).

After completion of discovery, the Department, Thomas, and

Miller moved for summary judgment; the two individuals again

claimed qualified immunity. Concerning them, and in another

detailed opinion, the court referenced its first opinion and

concluded that the reasons for the earlier denial remained. Felton

9
v. Polles, No. 3:99CV200LN, at 3 (S.D. Miss. 23 Jan. 2001) (Felton

II).

On the other hand, the Department’s motion was granted in most

respects, including for Carter’s claims based on not being promoted

to Hunter Safety Coordinator in 1997. Felton II, at 17-18. In

that regard, the court found no evidence that the failure to

promote was pretextual. Noting that Carter’s combined interview

and State Personnel Board score for the position was lower than the

white applicant’s because of the point system used by the Board for

factors such as an applicant’s education level or military service,

it stated: “Carter’s grievance ... should be with the [State

Personnel] Board and not the Department”. Id. at 13. The

Department’s motion was denied, however, “[t]o the extent ... [it

was] based on the fact that neither Thomas nor Miller individually

discriminated against Carter”. Id. at 3 (emphasis added).

II.

This interlocutory appeal, concerning only one of the four

named plaintiffs (Carter), is brought by the only two individual

defendants denied qualified immunity (individual capacity), not by

the Department; it concerns qualified immunity, not the merits. It

is well-established that, “to the extent ... it turns on an issue

of law”, a qualified immunity denial is appealable. Southard v.

Tex. Bd. of Criminal Justice, 114 F.3d 539, 548 (5th Cir. 1997)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

10
 Among other protections it provides, “qualified immunity

serves to shield a government official from civil liability for

damages based upon the performance of discretionary functions if

the official’s acts were objectively reasonable in light of then

clearly established law”. Thompson v. Upshur County, Tex., 245

F.3d 447, 456 (5th Cir. 2001). To that end:

Where a defendant pleads qualified immunity
and shows he is a governmental official whose
position involves the exercise of discretion,
the plaintiff then has the burden “to rebut
this defense by establishing that the
official’s allegedly wrongful conduct violated
clearly established law.” We do “not require
that an official demonstrate that he did not
violate clearly established federal rights;
our precedent places that burden upon
plaintiffs.”

Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (emphasis

added; internal citations omitted; quoting Salas v. Carpenter, 980

F.2d 299, 306 (5th Cir. 1992)).

“The bifurcated test for qualified immunity is quite familiar:

(1) whether the plaintiff has alleged a violation of a clearly

established constitutional [or federal statutory] right; and, (2)

if so, whether the defendant’s conduct was objectively unreasonable

in the light of the clearly established law at the time of the

incident.” Hare v. City of Corinth, Miss., 135 F.3d 320, 325 (5th

Cir. 1998).

The first prong requires determining “whether the plaintiff

has alleged the deprivation of an actual constitutional [or

11
statutory] right”, Conn v. Gabbert, 526 U.S. 286, 290 (1999)

(emphasis added) — that is, a right “clearly established ... under

... currently applicable ... standards”, Hare, 135 F.3d at 325-26

(emphasis added; internal citations and quotation marks omitted).

Only if the plaintiff has done so should the court proceed to the

second prong. As shown infra, this first prong serves a very

important purpose.

The second prong “is better understood as two separate

inquiries: whether the allegedly violated constitutional rights

were clearly established at the time of the incident; and, if so,

whether the conduct of the defendants was objectively unreasonable

in the light of that then clearly established law”. Hare, 135 F.3d

at 326 (first emphasis in original).

To satisfy the first prong (claimed violation, under existing

law, of actual, clearly established constitutional or federal

statutory right), a plaintiff may allege the claimed deprivation at

a higher level of generality. See Thompson, 245 F.3d at 459. For

the second prong (objectively unreasonable conduct in the light of

clearly established law at time of incident), however,

the right ... alleged to have [been] violated
must have been ‘clearly established’ in a more
particularized, and hence more relevant,
sense: The contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

12
 The second prong “focuses not only on the state of the law at

the time of the complained of conduct, but also on the particulars

of the challenged conduct and/or of the factual setting in which it

took place”. Pierce, 117 F.3d at 872. A “defendant’s acts are ...

objectively reasonable unless all reasonable officials in the

defendant’s circumstances would have then known that the

defendant’s conduct violated the United States Constitution or the

federal statute as alleged by the plaintiff.” Thompson, 245 F.3d

at 457 (emphasis in original).

“It goes without saying that we review a summary judgment de

novo, viewing the evidence in the light most favorable to the

nonmovant.” Hare, 135 F.3d at 326. Moreover, due to our limited

jurisdiction for this interlocutory appeal, we “cannot review

whether the evidence ‘could support a finding that particular

conduct occurred’”. Southard, 114 F.3d at 548 (quoting Behrens v.

Pelletier, 516 U.S. 299, 313 (1996)).

On the other hand, we do have “interlocutory jurisdiction to

‘take, as given, the facts that the district court assumed when it

denied summary judgment’ and determine whether these facts state a

claim under clearly established law”. Nerren v. Livingston Police

Dept., 86 F.3d 469, 472 (5th Cir. 1996) (emphasis added; quoting

Johnson v. Jones, 515 U.S. 304, 319 (1995)). Likewise, we may

review: (1) “[t]he issue of whether and when a right is clearly

established”; and (2) “to the extent that the relevant discrete,

13
historic facts are undisputed, ... the question of the objective

reasonableness of the defendant’s conduct”. Pierce, 117 F.3d at

871 (internal citations omitted).

Title VII is not at issue now. “Because ... qualified

immunity protects a public official from liability for money

damages in her individual capacity only, [it] is inapplicable in

the Title VII context.” Harvey v. Blake, 913 F.2d 226, 228 (5th

Cir. 1990) (emphasis added). This is because, as the district

court noted: “[U]nder Title VII, a plaintiff may sue only his ...

employer, ... and few, if any, of the named defendants other than

the [Department] would seem to qualify as a Title VII ‘employer’”.

Felton I, at 6 n.7. (Carter does not appear to contend either

Thomas or Miller is an “employer” for Title VII purposes.

Obviously, non-“employers’”, such as Thomas and Miller’s, not being

liable under Title VII is one of the reasons why parallel claims

are brought against them under § 1981.) Therefore, for this

interlocutory appeal, the claims at issue for Thomas and Miller, in

their individual capacities, are only under §§ 1981 and 1983.

In addition to the three counts for the Title VII claim not at

issue and for the §§ 1981 and 1983 claims detailed below, Carter’s

amended complaint earlier claims:

[H]e was discriminated against in violation of
Title VII ... because of his race and
retaliated against ... in violation of ...
Title VII ... because he complained about his
treatment and the treatment of other Blacks.
And also in violation of ... § 1983.

14
(Emphasis added.) In denying qualified immunity, the district

court indicated a possible retaliation claim but did not identify

the applicable statute. Felton I, at 4; Felton II, at 2. Thomas

and Miller categorize the claims at issue here as only disparate

treatment and racial harassment; retaliation is not included.

Carter’s brief repeatedly similarly identifies his claims against

Thomas. Accordingly, Carter’s counsel was asked at oral argument

if his § 1981 claims were for disparate treatment and racial

harassment; he responded they were. In sum, retaliation is not at

issue for purposes of qualified immunity vel non for Thomas and

Miller.

For Thomas, the claims are: discrimination, under § 1981,

framed by Carter as involving racial harassment and disparate

treatment; and Fifth and Fourteenth Amendment violations

(presumably equal protection), under § 1983.

For Miller, the only claim is under § 1983 for deliberate

indifference to Carter’s constitutionally protected rights. The

district court concluded: “[T]he evidence fails to demonstrate

discriminatory intent on behalf of Miller”. Felton I, at 12. On

the other hand, it noted: “[A] supervisor may be liable under §

1983 if ‘that official, by action or inaction, demonstrates a

deliberate indifference to a plaintiff’s constitutionally protected

rights’”. Id. at 12-13 (quoting Southard, 114 F.3d at 550).

A.

15
 Regarding Thomas, the district court concluded there is “a

genuine issue of material fact as to whether ... [he] ...

intentionally discriminated against [Carter]”. Id. at 7. Noting

that “some of the incidences alleged by Carter may consist of mere

speculation or hearsay”, id. at 11, the court also noted: “Carter

... recounts numerous instances of alleged racial harassment and

discrimination by ... Thomas over the course of Carter’s [ongoing

15-year] employment, some of which constitute direct evidence of

discriminatory intent”, id. at 10 (emphasis added). The district

court identified “comments from supervisory officials indicating

... Thomas did not want black officers working in his district”.

Id. at 11.

In that light, the court held:

Carter has made allegations that, if proven,
would be sufficient to establish a violation
by Thomas of a clearly established
constitutional right [and] the court has
little difficulty concluding that if
[Carter’s] allegations as to Thomas’ actions
and motivation were proven, then Thomas’
conduct was not objectively reasonable, as a
reasonable officer in Thomas’ position would
have known that treating one differently based
upon his or her race is prohibited.

Id. Accordingly, Thomas was denied qualified immunity.

1.

It is more than well-established that, unlike § 1981, § 1983

“is not itself a source of substantive rights”; instead, it

provides “a method for vindicating federal rights elsewhere

16
conferred”. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)

(emphasis added). As noted, Carter’s § 1983 claim is for Fifth and

Fourteenth Amendment (presumably equal protection) violations; it

is not for vindication of the § 1981 rights he claims were violated

(separate count).

Section 1981 provides:

(a) Statement of equal rights

All persons ... shall have the same right
... to make and enforce contracts ... as is
enjoyed by white citizens....

(b) “Make and enforce contracts” defined

For purposes of this section, the term
“make and enforce contracts” includes the
making, performance, modification, and
termination of contracts, and the enjoyment of
all benefits, privileges, terms, and
conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are
protected against impairment by
nongovernmental discrimination and impairment
under color of State law.

42 U.S.C. § 1981 (emphasis added). Subsections (b) and (c) were

added by the Civil Rights Act of 1991, Pub. L. No. 102-166, § 101,

105 Stat. 1071. These two new subsections play an important role

in deciding whether Carter satisfies the first prong for qualified

immunity.

Section 1983 provides:

Every person who, under color of any
statute, ordinance, regulation, custom, or

17
 usage, of any State ..., subjects ... any
citizen of the United States ... to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress....

42 U.S.C. § 1983 (emphasis added). Whereas “section 1981 provides

a cause of action for public or private discrimination based on

race”, § 1983 does not reach purely private conduct. Jett v.

Dallas Indep. Sch. Dist., 798 F.2d 748, 762 (5th Cir. 1986)

(emphasis added), aff’d in part and remanded in part, 491 U.S. 701

(1989).

a.

Apart from the specifics of a discrimination claim, discussed

infra, there are several potential problems with pursuing a § 1981

claim against Thomas in his individual capacity. Some of these

points were addressed by our court subsequent to the qualified

immunity denial at issue here. Because these points were not

raised either in district court or here, the district court did not

address, nor do the parties brief, them. Nevertheless, we address

them because they are germane, if not necessary, to the first prong

of the qualified immunity analysis: whether, under currently

applicable law, Carter has stated a claim. See Nerren, 86 F.3d at

472, 473.

18
 (1)

First, it is not clear whether a § 1981 claim lies against an

individual defendant not a party to the contract giving rise to the

claim. Obviously, Carter’s contractual relation was not with

Thomas; it was with the State of Mississippi.

“[T]his Court has not yet decided whether a plaintiff has a

cause of action under section 1981 against a third party for

interference with the plaintiff’s right to make and enforce

contracts”. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.

1997), cert. denied, 522 U.S. 1068 (1998). Prior to Bellows,

however, Faraca v. Clements, 506 F.2d 956, 959 (5th Cir.), cert.

denied, 422 U.S. 1006 (1975), had held that the director of a state

entity could be personally liable under § 1981 for interfering with

the plaintiff’s right to contract with the State (refusal to hire

because wife was black).

Bellows distinguished Faraca on the basis that “[t]he director

was only nominally a third party”. Bellows, 118 F.3d at 274. “In

substance, because he was acting on behalf of the state when he

decided not to hire Faraca — thus making his hiring decision

indistinguishable from that of the state — the director and the

state were essentially the same.” Id.

In the light of Bellows’ limited reading of Faraca, it would

appear Thomas could only be amenable to § 1981 liability if he were

“essentially the same” as the State for purposes of the complained-

19
of conduct. He does not appear to be. However, as discussed

below, we need not decide this issue.

(2)

Even if Thomas had such status, a § 1981 discrimination claim

against him in his individual capacity is further complicated by a

somewhat recent decision by our court, subsequent to the qualified

immunity denial in this case: Oden v. Oktibbeha County, Miss., 246

F.3d 458 (5th Cir.), cert. denied, 122 S. Ct. 341, and cert.

denied, 122 S. Ct. 342 (2001). In reversing a judgment against a

county sheriff in his individual capacity for an alleged racially-

motivated failure to promote, Oden held:

Only officials should be responsible for
discriminatory decisions concerning government
employment contracts. Likewise, when a
plaintiff asserts a cause of action under §
1981 for discrimination in the terms and
conditions of a municipal employment contract,
the proper defendant is the government
employer in his official capacity.

Id. at 464 (internal citations omitted; emphasis added).

Oden speaks of discrimination in the terms and conditions of

a municipal employment contract; we see no reason not to extend its

holding to discrimination in the terms and conditions of state

employment contracts.

(3)

The final point is whether, as Carter has done in this action,

a state employee can assert a claim against his supervisor, in his

20
individual capacity, for violation of § 1981, when the § 1981 right

has not been asserted through § 1983. Carter’s independent § 1981

claim — not brought through § 1983 — against Thomas in his

individual capacity is contrary to Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701 (1989): “[T]he express ‘action at law’

provided by § 1983 for the ‘deprivation of any rights, privileges,

or immunities secured by the Constitution and laws,’ 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 (emphasis added).

Again, Oden comes into play. In considering additional § 1981

claims against the county and its sheriff in his official capacity,

Oden characterized Jett as holding “plaintiffs must assert a cause

of action against state actors under § 1983 to remedy violations of

civil rights under § 1981”. Oden, 246 F.3d at 463 (emphasis

added). Oden recognized some doubt had been cast on Jett’s

viability by the above-referenced addition in 1991 of subsection

(c) to § 1981: “The rights protected by this section are protected

against impairment by nongovernmental discrimination and impairment

under color of State law”. 42 U.S.C. § 1981(c) (emphasis added).

Oden nonetheless held: “Because Congress neither expressed its

intent to overrule Jett, nor explicitly created a remedy against

state actors in addition to § 1983, we are not willing to deviate

21
from the Supreme Court’s analysis of § 1981 in Jett”. Oden, 246

F.3d at 464. Accordingly, “Oden could not maintain an independent

cause of action under § 1981 against [the] County and Sheriff ...

in his official capacity”. Id. (emphasis added).

Jett involved a § 1981 action against a school district; Oden

relied on Jett only in addressing § 1981 claims against the county

and its sheriff in his official capacity. Nevertheless, we cannot

ignore Jett: “We hold that the express ‘action at law’ provided by

§ 1983 for the ‘deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,’ provides the

exclusive federal damages remedy for the violation of the rights

guaranteed by § 1981 when the claim is pressed against a state

actor”. Jett, 491 U.S. at 735 (emphasis added).

Jett repeatedly phrases its holding with respect to “state

actors” — not simply governmental entities. See, e.g., 491 U.S. at

731 (“We think the history of the 1866 Act [(precursor to § 1981)]

and the 1871 Act [(precursor to § 1983)] ... indicates that

Congress intended that the explicit remedial provisions of § 1983

be controlling in the context of damages actions brought against

state actors alleging violation of the rights declared in § 1981.”

(emphasis added)); id. at 733 (“Section 1983 provides an explicit

remedy in damages which, with its limitations on municipal

liability, Congress thought suitable to carry ... into effect the

rights guaranteed by § 1981 as against state actors.” (internal

22
quotation marks omitted; ellipsis in original; emphasis added));

id. at 734 (“The historical evidence surrounding the revision of

1874 [(amending what became § 1983)] further indicates that

Congress thought that the declaration of rights in § 1981 would be

enforced against state actors through the remedial provisions of §

1983.” (emphasis added)); but see id. at 733 (discussing Court’s

“conclusion that the express cause of action for damages created by

§ 1983 constitutes the exclusive federal remedy for violation of

the rights guaranteed in § 1981 by state governmental units”

(emphasis added)).

Thomas is a state actor for purposes of this action. “[S]tate

employment is generally sufficient to render the defendant a state

actor”. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18

(1982); West v. Atkins, 487 U.S. 42, 49 (1988) (quoting Lugar).

Accordingly, it appears § 1983 constitutes Carter’s exclusive

remedy for the claimed § 1981 violation by Thomas. See, e.g.,

Ebrahimi v. City of Huntsville Bd. of Educ., 905 F. Supp. 993, 996

(N.D. Ala. 1995) (“Jett is clear that a claim for damages against

a state actor for violation of rights contained in § 1981 must be

redressed pursuant to the explicit remedial provisions of § 1983.

The Supreme Court did not make a distinction between state entities

and individuals acting pursuant to color of state law. Therefore,

when a state employee seeks to hold an individual fellow state

employee liable in damages for violation of § 1981 rights, such

23
claim must also be pursued under the remedial provisions of §

1983.” (emphasis in original)).

Needless to say, requiring § 1981 claims against state actors

to be pursued through § 1983 is not a mere pleading formality. One

of the reasons why the § 1981 claim in this situation must be

asserted through § 1983 follows. Although respondeat superior

liability may be available through § 1981, see, e.g., Gen. Bldg.

Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 395 (1982);

Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876 F.2d 1231,

1234-36 (5th Cir. 1989), it is not available through § 1983, see,

e.g., Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

True, that form of liability against the governmental entity has no

direct bearing on qualified immunity from individual capacity

liability, but it is germane to whether a claim has been stated,

bearing on the first prong of qualified immunity analysis.

Again, Carter’s § 1983 claim (Count 3) does not include §

1981. Instead, it is for violations of “constitutional rights ...

secured pursuant to the 5th Amendment and 14th Amendment of the

United States Constitution”: (1) an equal protection claim

(presumably) against Thomas; and (2) a deliberate indifference

claim against Miller. The § 1981 claim is independent (Count 1).

In sum, Carter has failed to invoke the only remedy available to

him for the claimed deprivation of his § 1981 rights — he has

essentially failed to state a claim.

24
 b.

In any event, and as discussed below, even if Carter can

maintain an independent § 1981 claim against Thomas in his

individual capacity, or even if his complaint is sufficiently broad

to incorporate the alleged § 1981 deprivations into his § 1983

claim, or even if amendment were permitted on remand, Thomas is

nevertheless entitled to qualified immunity against the

discrimination claims involved in this interlocutory appeal —

racial harassment and disparate treatment. “To establish a claim

under § 1981, a plaintiff must allege facts in support of the

following elements: (1) the plaintiff is a member of a racial

minority; (2) an intent to discriminate on the basis of race by the

defendant; and (3) the discrimination concerns one or more of the

activities enumerated in the statute [e.g., enforcement of a

contract].” Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th

Cir. 1994).

(1)

A harassment claim under § 1981 has not always been “clearly

established”. For the pre-amended version of § 1981, and pursuant

to Patterson v. McLean Credit Union, 491 U.S. 164 (1989),

employment discrimination claims alleging
racial harassment [were] “not actionable under
§ 1981, which covers only conduct at the
initial formation of the contract and conduct
which impairs the right to enforce contract
obligations through legal process. Rather,
such conduct is actionable under the more
expansive reach of Title VII”.

25
Lavender v. V & B Transmissions and Auto Repair, 897 F.2d 805, 806

(5th Cir. 1990) (emphasis added; quoting Patterson, 491 U.S. at

179-80). However:

In the Civil Rights Act of 1991, ...
Congress legislatively reversed Patterson.
Section 1981 now specifically states that,
“[f]or purposes of this section, the term
‘make and enforce contracts’ includes the
making, performance, modification, and
termination of contracts, and the enjoyment of
all benefits, privileges, terms, and
conditions of the contractual relationship.”
42 U.S.C. § 1981(b).

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San

Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994) (emphasis added).

Therefore, “[u]nder § 1981 as amended by the [1991] Act,

racial harassment and other discrimination in an employment

relation occurring after contract formation is actionable”.

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1372 (5th Cir. 1992)

(emphasis added), cert. denied, 511 U.S. 1068 (1994). Although our

court recognizes a § 1981 racial harassment claim against an

individual, it has apparently not stated the prima facie elements

for it. See, e.g., Patterson v. P.H.P. Healthcare Corp., 90 F.3d

927 (1996), cert. denied, 519 U.S. 1091 (1997); Wallace v. Tex.

Tech. Univ., 80 F.3d 1042 (5th Cir. 1996).

Usually, racial harassment is thought of in terms of Title

VII. Along this line, our court has relied on Title VII principles

for guidance in parallel § 1981 actions. See, e.g., Shackelford v.

26
Deloitte & Touche, L.L.P., 190 F.3d 398, 403-04 n.2 (5th Cir. 1999)

(“When used as parallel causes of action, Title VII and section

1981 require the same proof to establish liability.”); see also

Bunch v. Bullard, 795 F.2d 384, 387 n.1 (5th Cir. 1986).

Again, liability under Title VII lies only against “employers”

as defined by Title VII. See, e.g., 42 U.S.C. § 2000e(b)

(definition of “employer”) & 2000e-2(a) (inter alia, proscribes

racial discrimination by “employer”). Regarding Title VII, “[a]

prima facie case of racial harassment alleging hostile work

environment normally consists of five elements”, Celestine v.

Petroleos de Venezuela SA, 266 F.3d 343, 353 (5th Cir. 2001):

(1) the employee belongs to a protected group;
(2) the employee was subjected to unwelcome
harassment; (3) the harassment complained of
was based on race; (4) the harassment
complained of affected a term[,] condition or
privilege of employment; (5) the employer knew
or should have known of the harassment in
question and failed to take prompt remedial
action.

Id. (emphasis added). The fifth element (directed at the employer)

presents an obvious incongruity for a § 1981 claim against an

individual.

Accordingly, looking again to Title VII, “where the harassment

is allegedly committed by a supervisor with immediate (or

successively higher) authority over the harassment victim, the

plaintiff employee needs to satisfy only the first four of the

elements listed above”. Id. (citing Faragher v. City of Boca

27
Raton, 524 U.S. 775, 807 (1998)). Therefore, in the light of our

court’s reliance on Title VII principles for guidance in parallel

§ 1981 actions, and because Thomas was Carter’s supervisor, we

assume that, to have asserted a § 1981 racial harassment claim,

Carter had to provide summary judgment evidence for each of the

first four above-listed prima facie elements.

It is essential to identify what conduct is in play. In

district court, in response to the Defendants’ contention that much

of the alleged discriminatory conduct could not be considered

because it was barred by the statute of limitations, the court

ruled: “[W]hile the statute ... may bar bringing an action based

upon those alleged incidences, they may still be considered as

evidence of discriminatory intent”. Felton I, at 5 n.6. Such

incidents occurring more than three years prior to this action’s

being filed (17 March 1999) may be considered as “relevant

background information to current discriminatory acts”. Ramsey v.

Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (Title VII). On the

other hand, they are not actionable for a number of reasons.

First is the obvious statute of limitations bar referenced by

the district court. See National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) (suggesting discrete acts, as opposed to

hostile work environment claims, outside the applicable limitations

period, are not actionable). “The limitations period applicable to

§ 1981 claims is that applied to the most closely analogous claim

28
under state law.” Cervantes v. IMCO, Halliburton Servs., 724 F.2d

511, 513 n.4 (5th Cir. 1984). It is undisputed that, under

Mississippi law, the relevant period is three years.

Second, as noted, the Supreme Court held in 1989 in Patterson

that racial harassment claims were not actionable under § 1981.

491 U.S. at 179-80. Although § 1981 was amended to “legislatively

reverse[]” Patterson, the amendment “is not to be given retroactive

effect”. Nat’l Ass’n of Gov’t Employers, 40 F.3d at 713 (emphasis

added). Thus, even apart from the limitations consideration,

conduct prior to the 21 November 1991 amendment of § 1981 is not

actionable in a § 1981 harassment claim. Accordingly, as discussed

infra, the majority of Carter’s allegations — which reach as far

back as 1985 and are, in large part, double hearsay — are only

relevant as background information.

This action was filed on 17 March 1999. Therefore, within the

relevant limitations period are: (1) the 23-24 March 1996 leave-

denial (during turkey hunting season); (2) the January through July

1996 investigation regarding the credit card and TAL records

(Thomas’ involvement, however, was in preparing the 17 January 1996

memo — outside the limitations period); (3) the promotion-denial

for the June 1997 Hunter Safety Coordinator vacancy (for which the

district court found no evidence of pretext and granted the

Department summary judgment, opining that Carter’s complaint was

“with the [State Personnel] Board and not the Department”, Felton

29
II, at 13); and (4) the March 1997 unsatisfactory performance

evaluation, resulting in Carter’s being placed on a performance

improvement plan and missing approximately one month of an annual

wage increase (loss of approximately $25).

Actionable harassment must involve “racially discriminatory

intimidation, ridicule and insults”. Walker v. Thompson, 214 F.3d

615, 625 (5th Cir. 2000); see also Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993). And, as noted, it must have also

affected a term, condition, or privilege of employment. “For

harassment on the basis of race to affect a term, condition, or

privilege of employment, as required to support a hostile work

environment claim under Title VII, it must be sufficiently severe

or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment”. Ramsey, 286 F.3d at 268

(quoting Harris, 510 U.S. at 21 (1993); internal quotation marks

omitted).

These allegations, accepted as true and viewed in the light

most favorable to Carter, cannot constitute § 1981 racial

harassment. There are no allegations of intimidation, ridicule, or

insults within the actionable time period. Nor are any

“sufficiently severe or pervasive to alter the conditions of

[Carter’s] employment and create an abusive working environment”.

Id. (For example, Carter does not state he has ever heard Thomas

utter a racial slur.) The complained-of conduct falling within the

30
relevant period is more suited to Carter’s disparate treatment

claim, discussed infra.

Because Carter’s brief states he “was subjected to

continuo[u]s harassment and continuo[u]s disparate treatment”, it

may be that he attempts to invoke the continuing violation

doctrine. Any such attempt fails.

“The continuing violation theory relieves a plaintiff of

establishing that all of the complained-of conduct occurred within

the actionable period if the plaintiff can show a series of related

acts, one or more of which falls within the limitations period.”

Celestine, 266 F.3d at 351 (citing Messer v. Meno, 130 F.3d 130,

135 (5th Cir. 1997); emphasis added). This “doctrine does not

automatically attach in hostile work environment cases, and the

burden remains on the employee to demonstrate an organized scheme

led to and included the present violation”. Id. at 352. And, the

doctrine “‘requires the same type of discriminatory acts to occur

both inside and outside the limitations period,’ such that a valid

connection exists between them”. Id. (quoting Martineau v. ARCO

Chem. Co., 203 F.3d 904, 913 (5th Cir. 2000); emphasis added).

The majority of allegations that might tend to support a

harassment claim allegedly occurred during Carter’s first term

under Thomas’ supervision: 1985 to 1992. Carter was then promoted

and placed under another officer’s supervision until 1995 — nearly

three years. The only complained-of conduct during that three-year

31
period is Thomas’ informing Carter’s new supervisor that Carter had

been stopping females in Montgomery County. This very distinct,

three-year break defeats any attempt to establish a continuing

violation by tying incidents that allegedly occurred prior to

Carter’s second term under Thomas’ supervision (1995-1997) to

incidents that allegedly occurred during that second term.

The only incident that occurred during that second term which

even approaches harassment is the allegation that Carter was told

by another officer he overheard Thomas tell Miller in January 1996

(month during which Carter’s TAL and credit card records were being

reviewed): “I’m just about to get that nigger”. However, even

this allegation — again double hearsay — falls outside the

limitations period.

In sum, Carter has not alleged anything that approaches

harassment within the relevant time frame, and any attempt to

invoke the continuing violation doctrine fails. Accordingly,

“[t]aking [Carter’s] allegations as true”, and viewing all of the

evidence in a light most favorable to Carter, he has failed to

“state a [§ 1981 racial harassment] claim against [Thomas] under

clearly established [currently applicable] law”. Southard, 114

F.3d at 548 (internal quotation marks omitted). Restated, Carter

has not satisfied the first prong for overcoming qualified

immunity. (2)

32
 Likewise, for his disparate treatment claim against Thomas,

and again assuming Carter could maintain a § 1981 claim,

independent from § 1983, against him in his individual capacity,

Carter has for the most part failed to state a claim sufficient to

satisfy the first prong for overcoming qualified immunity. And,

for the conduct for which he arguably does satisfy that prong, he

fails to satisfy the second: he fails to show Thomas’ conduct was

objectively unreasonable.

For Carter’s disparate treatment claim, and in the light of

our precedent instructing that Title VII principles inform our

treatment of parallel § 1981 claims, the complained-of conduct must

rise to the level of an “ultimate employment decision”. “Title VII

was designed to address ultimate employment decisions, not to

address every decision made by employers that arguably might have

some tangential effect upon those ultimate decisions”. Dollis v.

Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (emphasis added).

“‘Ultimate employment decisions’ include acts ‘such as hiring,

granting leave, discharging, promoting, and compensating.’”

Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.) (quoting

Dollis, 77 F.3d at 782), cert. denied, 522 U.S. 932 (1997).

Our court has suggested that the ultimate employment decision

requirement may not apply with respect to disparate treatment, as

opposed to retaliation, claims. See, e.g., Shackelford, 190 F.3d

at 406-07; Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875,

33
878-79 (5th Cir. 1999); Mattern, 104 F.3d at 708-09 (noting the

limited scope of Title VII’s anti-retaliation provision when

compared to other Title VII provisions). The fact remains,

however, that Dollis, which involved disparate treatment (as well

as retaliation), made no such distinction.

Our court has also implied that the continuing vitality of the

“ultimate employment decision” doctrine is questionable in the

light of Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998),

and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See

Fierros v. Tex. Dept. of Health, 274 F.3d 187, 192 n.2 (5th Cir.

2001) (“Burlington Industries and Faragher are noteworthy in the

context of this court’s ‘ultimate employment decision’ doctrine

because the Supreme Court sets out a relatively broad definition of

‘tangible employment action’: ‘a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits’”.).

In any event, for qualified immunity purposes, the test is

whether Carter has asserted deprivation of a statutory right under

clearly established law. Dollis is the one clear pronouncement on

the matter.

(a)

Of the following complained-of incidents within the relevant

period, the January through July 1996 investigation regarding the

34
credit card and TAL records cannot constitute an ultimate

employment decision. As noted, Thomas’ primary involvement in the

investigation was preparation of his 17 January 1996 memo — outside

the limitations period. In any event, the investigation had “mere

tangential effect on a possible future ultimate employment

decision”, Mattern, 104 F.3d at 708: namely, a five-day suspension

following the hearing at which Carter admitted placing

approximately 900 minutes of personal calls at the State’s expense

and agreed to reimburse it for them.

(b)

For the promotion-denial for the June 1997 Hunter Safety

Coordinator vacancy, the district court found no evidence of

pretext and granted the Department summary judgment. As noted, it

opined that Carter’s complaint was “with the [State Personnel]

Board and not the Department”. Felton II, at 13. Nevertheless,

that denial might constitute an ultimate employment decision.

Carter has not, however, demonstrated any involvement by

Thomas. As the district court noted, the Department made the

decision not to promote Carter. Id. at 12. When pressed on this

point at oral argument, Carter’s counsel stated: “[T]he point is

that the well was poisoned [when Carter] went to apply for that

position. He wasn’t allowed to get it because he had all this

stuff in his record from Thomas”. (Emphasis added.)

35
 We assume counsel was referring primarily to the investigation

(and possibly Thomas’ resulting 17 January 1996 memo) regarding the

credit card and TAL records, culminating in the July 1996 hearing

and resulting disciplinary action, including the written reprimand.

In any event, Mattern held: “[H]aving documented reprimands in

[plaintiff’s] file may have increased the chance that she would

eventually suffer an adverse employment action but, ... neither

were they ultimate employment decisions nor did they rise above

having mere tangential effect on a possible future ultimate

employment decision”. Id. at 708. “To hold otherwise would be to

expand the definition of ‘adverse employment action’ to include

events such as disciplinary filings, supervisor’s reprimands, and

even poor performance by the employee — anything which might

jeopardize employment in the future.” Id.

(c)

The 23-24 March 1996 leave-denial may be an ultimate

employment decision. It appears, however, that Carter’s accrued

leave was not taken away; its use was merely postponed. In any

event, the leave-denial was not objectively unreasonable. As

Carter acknowledges in his brief, “no officers were allowed leave”.

(d)

The final claimed discriminatory conduct is the March 1997 low

performance evaluation, which resulted in Carter’s being placed on

a performance improvement plan and the loss of approximately one-

36
month’s wage increase. Of course, placement on a performance

improvement plan is not, by itself, an ultimate employment

decision. See Mattern, 104 F.3d at 708 (“[B]eing placed on ‘final

warning’[] do[es] not constitute [an] ‘adverse employment

action[]’”.). On the other hand, Thomas’ counsel conceded at oral

argument that, under Department policy, participation in the plan

automatically postponed Carter’s scheduled annual raise.

Assuming that the raise-postponement did constitute an

ultimate employment decision (again, the loss amounted to only

approximately $25), it is important to note that, with the possible

exception of Thomas’ claimed inability to contact Carter during

duty hours, Carter does not dispute the underlying bases for the

evaluation, which are supported by the summary judgment evidence:

low ticket issuance, erroneous TAL reporting, and failure to return

forms. Accordingly, there was no objectively unreasonable conduct.

2.

Carter’s § 1983 claim against Thomas for violation of

“constitutional rights ... secured pursuant to the 5th Amendment

and 14th Amendment” is presumably an equal protection claim.

Carter, however, does not mention either Amendment in his brief;

therefore, obviously, he does not mention equal protection.

To the extent an equal protection claim might reach the same

conduct for which we have already recognized qualified immunity

against the § 1981 claims, Carter has failed to make the requisite

37
showing. “We do ‘not require that an official demonstrate that he

did not violate clearly established federal rights; our precedent

places that burden upon plaintiffs’”. Pierce, 117 F.3d at 872

(internal citations omitted; quoting Salas v. Carpenter, 980 F.2d

299, 306 (5th Cir. 1992)).

B.

Regarding Miller, the only claim recognized by the district

court is under § 1983 for deliberate indifference. Felton I, at

12-13. It held: “Although Carter has offered evidence suggesting

that Miller may have been aware of racial bias and discrimination

by Thomas, the evidence fails to demonstrate discriminatory intent

on behalf of Miller”. Id. at 12. As noted, the court also

recognized, however: “[A]ccording to the Fifth Circuit, a

supervisor may be liable under § 1983 if ‘that official, by action

or inaction, demonstrates a deliberate indifference to a

plaintiff’s constitutionally protected rights’”. Id. at 12-13

(quoting Southard, 114 F.3d at 551). In that light, the court

concluded: “Because Carter has presented sufficient evidence to

create a genuine issue as to whether Miller was aware of racial

discrimination and did nothing to prevent it, he is not entitled to

qualified immunity....” Id. at 13.

For such liability, however, the supervisor’s conduct must

have caused a constitutional injury. See Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 454-55 (5th Cir.) (en banc), cert. denied, 513

38
U.S. 815 (1994). There are none here. Accordingly, Miller is

entitled to qualified immunity.

III.

For the foregoing reasons, the denial of qualified immunity

from the §§ 1981 and 1983 claims against Thomas and Miller, in

their individual capacities, is REVERSED and this case is REMANDED

for further proceedings consistent with this opinion.

REVERSED and REMANDED

39