Hitoshi Yoshikawa v. Troy Seguirant

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HITOSHI YOSHIKAWA, No. 21-15970

Plaintiff-Appellee,

D.C. No.

v. 1:18-cv-00162-

JAO-RT

TROY K. SEGUIRANT, Individually,

Defendant-Appellant,

OPINION

and

CITY AND COUNTY OF HONOLULU;

GREG TALBOYS; AGT

CONSTRUCTION, LLC; JAMES A.

SCHMIT,

Defendants.

Appeal from the United States District Court

for the District of Hawaii

Jill Otake, District Judge, Presiding

Submitted April 14, 2022*

San Francisco, California

Filed July 25, 2022

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 YOSHIKAWA V. SEGUIRANT

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,

and Susan R. Bolton,** District Judge.

Opinion by Judge Bybee

SUMMARY***

Civil Rights / Qualified Immunity

The panel affirmed the district court’s order denying

building inspector Troy Seguirant’s motion to dismiss, on the

basis of qualified immunity, a claim brought by Hitoshi

Yoshikawa under 42 U.S.C. § 1981.

Seguirant determined that Yoshikawa’s renovation of a

property violated local ordinances. Although he conceded the

ordinance violation, Yoshikawa alleged that the enforcement

action against him was motivated by racial animus, in

violation of § 1981.

The panel held that, in addressing a qualified immunity

claim in an action against an officer for an alleged violation

of a constitutional right, the court first asks whether, taken in

the light most favorable to the party asserting the injury, the

facts alleged show that the officer’s conduct violated a

constitutional right. If not, the complaint must be dismissed

**

The Honorable Susan R. Bolton, United States District Judge for

the District of Arizona, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

YOSHIKAWA V. SEGUIRANT 3

for failure to state a claim. Second, the court asks whether

the constitutional or statutory right was clearly established,

such that the officer had fair notice that his conduct was

unlawful.

The panel held that Yoshikawa stated a § 1981 damages

claim against Seguirant, a state actor. Under Comcast Corp.

v. Nat’l Ass’n Afr. Am.-Owned Media, 140 S. Ct. 1009

(2020), an allegation of discrimination on the basis of race is

a but-for element of a claim brought under § 1981.

Disagreeing with Seguirant’s contention that Yoshikawa’s

undisputed violation of building regulations created an

absolute defense to any claim of but-for causation, the panel

explained that such a rule would mean that a plaintiff would

lose on a § 1981 claim as long as the defendant provided

some justification for the discriminatory act. The panel

concluded that Yoshikawa’s allegations, if proven,

established but-for causation, and he therefore stated a § 1981

claim.

The panel further held that Seguirant’s alleged actions

violated clearly established law because he was accused of

intentional racial discrimination, a violation of a well-

established Fourteenth Amendment right to be free from

racial animus in public decisions. The panel found irrelevant

to qualified immunity, at the motion to dismiss stage, the

issue of the applicability of the McDonnell Douglas test, an

evidentiary standard, for analyzing § 1981 claims in non-

employment cases.

4 YOSHIKAWA V. SEGUIRANT

COUNSEL

Robert M. Kohn and Nicolette Winter, Deputies Corporation

Counsel; Department of the Corporation Counsel, Honolulu,

Hawai‘i; for Defendant-Appellant.

Terrance M. Revere, Revere & Associates LLLC, Kailua,

Hawai‘i, for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

In this case we consider the application of qualified

immunity to a claim arising under 42 U.S.C. § 1981. Hitoshi

Yoshikawa bought waterfront property in Kane‘ohe, Hawai‘i.

Appellant Troy Seguirant, a building inspector for the City

and County of Honolulu, determined that the subsequent

renovation of the property violated the Revised Ordinances of

Honolulu by rebuilding a prior nonconforming structure

without the appropriate new building permit. Although he

concedes the violation of the local ordinances, Yoshikawa

alleged that the enforcement action against him was

motivated by racial animus, in violation of § 1981. Seguirant

moved to dismiss the complaint on the basis of qualified

immunity, claiming that Yoshikawa had not stated a cause of

action under § 1981 and, alternatively, that the law was not

clearly established. The district court denied both the motion

to dismiss and qualified immunity on the § 1981 claim,

reasoning in part that the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is

sufficiently established law in our circuit to justify a denial of

qualified immunity. Yoshikawa v. City and County of

YOSHIKAWA V. SEGUIRANT 5

Honolulu, 542 F. Supp. 3d 1099 (D. Haw. 2021). Although

we take a slightly different path than the district court, we

affirm the denial of qualified immunity.

I. BACKGROUND

This is an appeal from the district court’s decision

denying Seguirant qualified immunity. Because this case was

decided at the motion to dismiss stage, we have taken the

facts from the Third Amended Complaint (TAC) and, for

purposes of this appeal, will assume them to be true. See

UMG Recordings, Inc. v. Shelter Cap. Partners LLC,

718 F.3d 1006, 1014 (9th Cir. 2013).

A. Factual History

Hitoshi Yoshikawa is a Japanese national and lawful

permanent resident who resides in Hawai‘i. In 2014, he

bought waterfront property in Kane‘ohe and hired a licensed

architect (Defendant James Schmit) and contractor

(Defendant Greg Talboys) to secure design plans and permits

to renovate the property in compliance with applicable

regulations. Yoshikawa’s plans were complicated by the fact

that a nonconforming structure had previously been built

within the shoreline setback area. Schmit secured permitting

to commence the project, and Talboys started work in

November 2015.

Defendant-Appellant Troy Seguirant (Seguirant) is a

building inspector for the City and County of Honolulu.

Seguirant inspected the site at least nine times between

6 YOSHIKAWA V. SEGUIRANT

December 2015 and May 4, 2016.1 During these inspections,

Seguirant did not raise any issues or concerns related to the

scope of the project.

On May 6, 2016, however, Seguirant issued a Notice of

Violation and Stop Work Order on the Project (May NOV),

alleging that the project inappropriately reconstructed the

nonconforming structure within the shoreline setback without

a new building permit. Schmit and Talboys contacted the

Department of Planning and Permitting (DPP) in an effort to

have the May NOV rescinded, but they were instructed that

NOVs were unappealable and they would have to wait to

appeal until a formal Notice of Order (NOO) was issued. In

October 2016, Acting DPP Director Art Challacombe issued

a written letter (Challacombe letter) stating that a revised

proposal from Schmit was acceptable. The letter authorized

Yoshikawa to submit an application for a building permit,

leading Yoshikawa to expend substantial resources revising

and resubmitting the plans in December 2016.

On February 2, 2017, while in Yoshikawa’s yard, Talboys

overheard Seguirant telling the next-door neighbor, “I keep

shutting them down but f--- [expletive] these Haoles2 don’t

listen, that’s why I try [sic] keep it local.” (first alteration in

1

Yoshikawa alleges that this frequency of inspection was

significantly higher than usual—that typically inspections are conducted

only two or three times for such a project.

2

The word “haole” means “foreigner” in Hawaiian. In the modern

vernacular “haole” typically refers to Caucasians or others who are not

“locals.” It is sometimes regarded as a derogatory epithet. See Doe v.

Kamehameha Schs./Bernice Pauahi Bishop Est., 596 F.3d 1036, 1040 n.3

(9th Cir. 2010); Kaulia v. County of Maui, 504 F. Supp. 2d 969, 975 n.9

(D. Haw. 2007). Both Schmit and Talboys are white.

YOSHIKAWA V. SEGUIRANT 7

original). Following this statement, on March 14, 2017,

Seguirant issued an NOO (March NOO) alleging that the

work violated the approved building permit and a new

building permit was required. Yoshikawa appealed the

March NOO to the Board of Building Appeals (BBA). In the

meantime, an Amended Building Permit consistent with the

Challacombe letter was issued, DPP officials assured

Yoshikawa that the project could proceed, and construction

resumed.

Seguirant issued a second NOV in April 2017. In

addition to repeating the initial allegations, Seguirant further

alleged that Yoshikawa had supplied false information to

obtain the Amended Building Permit and a new structure had

in fact been built on the location of the prior nonconforming

structure in violation of the Revised Ordinances of Honolulu.

Yoshikawa continued to challenge the orders, but city

officials went silent.

In November 2017, the BBA held a hearing on the March

NOO and, in early 2018, issued its Findings of Fact,

Conclusions of Law, and Decision and Order (BBA Order).

The BBA Order determined that a new building permit was

required for the removal of the walls on the existing structure

within the shoreline setback area, and that Yoshikawa had

failed to obtain the appropriate permit reflecting the actual

work done on the property. Yoshikawa did not appeal the

order.3

3

In the TAC, Yoshikawa alleges that the BBA Order was sent not to

Yoshikawa’s counsel but instead to an outdated address for Schmit and

returned as undeliverable. Yoshikawa claims that his failure to appeal the

8 YOSHIKAWA V. SEGUIRANT

B. Proceedings Below

Yoshikawa filed this action in March 2018 against

Seguirant, the City and County of Honolulu, Schmit, and

Talboys. Only the first count in the TAC filed against

Seguirant is relevant to this appeal. Yoshikawa alleged what

he called an “equal protection claim” under 42 U.S.C. § 1981.

Referring to Seguirant’s comment on “haoles” and “keeping

it local,” Yoshikawa alleged that Seguirant had interfered

with his “right to make contracts with . . . [his] white or

Caucasian architect [and] general contractor” and that the

comments were made “with malice or intent to discriminate

against [Yoshikawa] based on race, alienage, and/or national

origin.” Seguirant filed a motion to dismiss the TAC on the

grounds that it failed to state a claim under § 1981. He also

asserted qualified immunity.

In a published opinion, the district court denied

Seguirant’s motion to dismiss with respect to the § 1981

claim and denied him qualified immunity. Yoshikawa, 542

F. Supp. 3d at 1111–12. The district court held that § 1981

claims “typically arise in employment discrimination cases,”

and the court would, accordingly, apply the McDonnell

Douglas test: “Plaintiff must plead that he (1) is a member of

a protected class, (2) attempted to contract for certain

services, and (3) was denied the right to contract for those

services.” Id. at 1110 (citing Lindsey v. SLT L.A., LLC,

447 F.3d 1138, 1145 (9th Cir. 2006)). The court concluded

that by alleging “that Seguirant, motiv[at]ed by racial animus,

tried to prevent the Project from proceeding by engaging in

BBA Order was the result of not receiving the order. The TAC alleged

due process violations under 42 U.S.C. § 1983 by the City and County of

Honolulu. This claim is not before us in this appeal.

YOSHIKAWA V. SEGUIRANT 9

multiple inspections and issuing multiple violations,”

Yoshikawa had made “sufficient factual allegations to state

a Section 1981 claim against Seguirant.” Id. at 1111. The

district court rejected Seguirant’s argument that Yoshikawa

had failed to allege that racial animus was the “but-for” cause

of the failure of Yoshikawa’s project and that, in light of the

BBA Order finding building code violations, Yoshikawa

could not make such a showing. Id. at 1112. The court

observed that “[i]t may be the case that the Project violated

the City’s ordinances and that Seguirant discriminated against

Plaintiff in enforcing those ordinances because of racial

animus.” Id. “[I]t is possible that Seguirant would not have

enforced the City’s ordinances in the precise manner that he

did if [Yoshikawa’s] contractor and architect were of a

different race.” Id.

The district court also rejected Seguirant’s assertion that

he was entitled to qualified immunity. Id. Seguirant argued

that even if Yoshikawa had stated a § 1981 claim against him,

the right was not clearly established because there is a circuit

split concerning the applicability of the fourth prong of the

McDonnell Douglas test outside of the employment context.

See Lindsey, 447 F.3d at 1145 (discussing a split between the

Sixth and Seventh Circuits over whether, outside of the

employment context, a plaintiff must prove that services were

made available to persons not members of the protected class;

declining to decide the issue). The district court held that,

even if the fourth element of McDonnell Douglas applied, it

would not protect Seguirant here because the “right to be free

from such invidious discrimination . . . is so well established

and so essential to the preservation of our constitutional order

that all public officials must be charged with knowledge of

it.” Yoshikawa, 542 F. Supp. 3d at 1112 (quoting Williams v.

10 YOSHIKAWA V. SEGUIRANT

Alhambra Sch. Dist. No 68, 234 F. Supp. 3d 971, 978–79 (D.

Ariz. 2017)).

Seguirant timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had original jurisdiction over this action

pursuant to 28 U.S.C. § 1331, which grants jurisdiction to

well-pleaded questions of federal law. We have appellate

jurisdiction over this interlocutory appeal pursuant to

28 U.S.C. § 1291 and the collateral order doctrine. See

Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014); Johnson

v. Jones, 515 U.S. 304, 309–12 (1995).

We review de novo a government officer or employee’s

entitlement to qualified immunity. S.B. v. County of San

Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). On a Rule

12(b)(6) motion to dismiss, “the court accepts the facts

alleged in the complaint as true,” and “[d]ismissal can be

based on the lack of a cognizable legal theory or the absence

of sufficient facts alleged.” UMG Recordings, Inc., 718 F.3d

at 1014 (alteration in original) (quoting Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).

III. DISCUSSION

Seguirant is here on appeal from the denial of qualified

immunity. “The doctrine of qualified immunity shields

officials from civil liability so long as their conduct ‘does not

violate clearly established statutory or constitutional rights of

YOSHIKAWA V. SEGUIRANT 11

which a reasonable person would have known.’” Mullenix v.

Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). Because qualified

immunity is immunity from suit—and thus “an entitlement

not to stand trial or face the other burdens of litigation,”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)—“a ruling on

[qualified immunity] should be made early in the proceedings

so that the costs and expenses of trial are avoided where the

defense is dispositive,” Saucier v. Katz, 533 U.S. 194, 200

(2001). In a suit against an officer for an alleged violation of

a constitutional right, there are two steps to a qualified

immunity claim. First, we ask whether “[t]aken in the light

most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional

right?” Id. at 201. If the answer to that question is “no,” the

complaint must be dismissed for failure to state a claim. See

id. If the answer to that question is “yes,” we then ask

whether the constitutional or statutory right was “clearly

established,” that is, “whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. at 201–02. The second question

goes to “whether the officer had fair notice,” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam), because

“qualified immunity protects ‘all but the plainly incompetent

or those who knowingly violate the law,’” Ziglar v. Abbasi,

137 S. Ct. 1843, 1867 (2017) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).

In support of his claim for qualified immunity, Seguirant

makes two arguments. First, he contends that Yoshikawa has

not and cannot state a claim under § 1981 because Yoshikawa

12 YOSHIKAWA V. SEGUIRANT

“bears the burden of showing that race was a but-for cause of

[his] injury.” Comcast Corp. v. Nat’l Ass’n Afr. Am.-Owned

Media, 140 S. Ct. 1009, 1014 (2020). Seguirant argues that

the BBA Order established that Yoshikawa was in violation

of the Revised Ordinances of Honolulu. Thus, there is an

independent reason for the issuance of the March NOO, and

Yoshikawa cannot prove that race was the but-for cause of his

injury. Second, Seguirant argues that, even if Yoshikawa can

allege a but-for cause of his injury, Seguirant is entitled to

qualified immunity from suit because the elements of a

§ 1981 non-employment action are not clearly established.

A. Whether Yoshikawa Has Stated a § 1981 Claim

Section 1981 of Title 42 provides:

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens,

YOSHIKAWA V. SEGUIRANT 13

and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

42 U.S.C. § 1981(a).4 Damage actions against public officers

under § 1981 have a complex history. See, e.g., Jett, 491 U.S.

at 711–31 (plurality opinion). Initially, “Congress did not

4

Section 1981 was adopted as part of the Enforcement Act of 1870,

also referred to as the Civil Rights Act of 1870. Enforcement Act of 1870,

ch. 114, §§ 16, 18, 16 Stat. 144. The first section of the Enforcement Act

reenacted portions of the Civil Rights Act of 1866. Civil Rights Act of

1866, ch. 31, § 1, 14 Stat. 27. The purpose of those acts “was to eradicate

the Black Codes, laws enacted by Southern legislatures imposing a range

of civil disabilities on freedmen.” Gen. Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 386 (1982). The Civil Rights Act of 1866

had been adopted pursuant to § 2 of the Thirteenth Amendment. But with

lingering doubts over the constitutionality of the Civil Rights Act of 1866,

Congress proposed the Fourteenth Amendment to eliminate any question

of its constitutionality. See Jones v. Alfred H. Mayer Co., 392 U.S. 409,

436 (1968); Hurd v. Hodge, 334 U.S. 24, 32–33 (1948). The Court has

ascribed § 1981 to Congress’s power under both the Thirteenth and

Fourteenth Amendments. Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701,

711–31 (1989); Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S.

431, 439–40 & n.11 (1973); Gibson v. Mississippi, 162 U.S. 565, 580

(1896).

The question of the source of Congress’s power is relevant because

it demonstrates that principles found in both the Thirteenth and Fourteenth

Amendments animate the statute. The Thirteenth Amendment reaches

both state and private action; the Fourteenth Amendment reaches state

action alone. Unlike complaints brought under § 1983, § 1981 reaches

both private action and state action, see Runyon v. McCrary, 427 U.S. 160,

168 (1976); Johnson v. Ry. Express Agency, 421 U.S. 454, 459–60 (1975);

Jones, 392 U.S. at 441–43, a principle now made express in § 1981(c).

Seguirant acted under color of state law. As a remedy for actions under

color of law, Congress had authority to enact § 1981 under either the

Thirteenth or the Fourteenth Amendments.

14 YOSHIKAWA V. SEGUIRANT

adopt a private enforcement mechanism for violations of

§ 1981.” Comcast, 140 S. Ct. at 1015. Nevertheless, in 1975,

the Court read an implied right of action for damages into

§ 1981. Johnson, 421 U.S. at 459–60. In 1989, however, the

Court held that § 1981 did not create an action for damages

against state actors. Jett, 491 U.S. at 731–32. The Court

reasoned that Congress crafted § 1983 as its remedial scheme

for enforcing the rights enumerated in § 1981. See id. (“That

we have read § 1 of the 1866 Act to reach private action and

have implied a damages remedy to effectuate the declaration

of rights contained in that provision does not authorize us to

do so in the context of the ‘state action’ portion of § 1981,

where Congress has established its own remedial scheme [in

42 U.S.C. § 1983].”).

In the meantime, Congress enacted the Civil Rights Act

of 1991, which added § 1981(c) to the statute. That

subsection provides that “[t]he 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). Although most circuits have continued

to follow Jett and deny a private right of action against state

actors, see Buntin v. City of Boston, 857 F.3d 69, 72 n.3 (1st

Cir. 2017) (cataloguing cases), we have held that the Civil

Rights Act of 1991 statutorily overruled Jett. Fed’n of Afr.

Am. Contractors v. City of Oakland, 96 F.3d 1204, 1210–14

(9th Cir. 1996). We thus recognize a § 1981 damages action

against state actors.

In Comcast, the Supreme Court addressed the elements of

a claim under § 1981. The Court observed that § 1981’s “text

does not expressly discuss causation, [but] it is suggestive.”

140 S. Ct. at 1015. The Court found “further clues” in “[t]he

larger structure and history of the Civil Rights Act of 1866”

YOSHIKAWA V. SEGUIRANT 15

and in the history of the Court’s recognition of an implied

private right of action. Id. at 1015–16. Drawing from those

sources, the Court held that § 1981 incorporates an “on

account of race ” or “by reason of race” requirement. Id.; see

Johnson, 421 U.S. at 459–60 (holding that § 1981 “affords a

federal remedy against discrimination . . . on the basis of

race”). The Court concluded that an allegation of

discrimination on the basis of race is a “but-for” element of

a claim brought under § 1981. See Comcast, 140 S. Ct.

at 1014–15.

Seguirant argues that the district court should have

granted his motion to dismiss Yoshikawa’s § 1981 claim

because Yoshikawa cannot satisfy Comcast’s standard. The

core of Seguirant’s argument lies in the findings of fact and

conclusions of law issued by the BBA. The BBA Order

concluded that

upon the inspection by the Department’s

Building Inspectors, it was determined that

the existing structure [on Yoshikawa’s

property] was demolished and a new structure

was erected in its place which exceeded the

scope of the Building Permit and that

Petitioner needed a new building permit

which reflected the actual work being done on

the Property. Furthermore, work done on

non-conforming structures is only limited to

repair and alteration, not replacement or

reconstruction.

The BBA affirmed the notice of violation issued by Seguirant

in May 2016. Because Yoshikawa did not appeal from the

BBA’s Order, the district court ruled that it must be given

16 YOSHIKAWA V. SEGUIRANT

preclusive effect, a ruling not challenged by Yoshikawa. See

Yoshikawa, 542 F. Supp. 3d at 1108 n.4.

Seguirant contends that Yoshikawa’s undisputed violation

of building regulations creates an absolute defense to any

claim of but-for causation. As Seguirant puts it: “‘If a

complaint identifies independent non-discriminatory reasons

for an alleged contractual impairment, a § 1981 claim is

rendered implausible.’” Opening Brief for Defendant-

Appellant at 12 (quoting Sharifi Takieh v. Banner Health,

515 F. Supp. 3d 1026, 1035 (D. Ariz. 2021), aff’d sub nom.

Takieh v. Banner Health, No. 21-15326, 2022 WL 474170

(9th Cir. Feb. 16, 2022)).

We disagree, for two reasons. First, despite Seguirant’s

contentions otherwise, the district court applied the

appropriate but-for standard to Yoshikawa’s pleadings. Not

only did the district court label that section of its opinion

“But-for Causation,” it cited Comcast and applied the case’s

“because of” standard. Yoshikawa, 542 F. Supp. 3d at 1112.

The district court concluded: “It may be the case that the

Project violated the City’s ordinances and that Seguirant

discriminated against Plaintiff in enforcing those ordinances

because of racial animus.” Id. (second emphasis added). The

district court correctly determined that it is legally possible

for an individual to commit a technical violation of a

regulation and for enforcement of that regulation still to be

discriminatory if the government would not have enforced the

regulation in that manner but for the plaintiff’s race. See

Elliot-Park v. Manglona, 592 F.3d 1003, 1006–09 (9th Cir.

2010).

Second, Seguirant’s assertion would mean that a plaintiff

would lose on a § 1981 claim as long as the defendant

YOSHIKAWA V. SEGUIRANT 17

provided some justification for the discriminatory act. Here,

Seguirant effectively argues that he would be entitled to

qualified immunity even if he had explicitly declared that he

only ever enforced the regulation against disfavored racial

groups and would not have enforced it but for their race.

Seguirant’s position is contrary to foundational Fourteenth

Amendment principles incorporated in § 1981. The

Fourteenth Amendment provides that “No State shall make or

enforce any law which shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1 (emphasis added). Seguirant’s reading is in

tension with the Supreme Court’s analysis of § 1981 in

General Building Contractors Ass’n. See 458 U.S.

at 386–90; see also supra at 13 n.4. Emphasizing the

statute’s close relationship to the Fourteenth Amendment, the

Court explicitly stated that the statute targeted the

enforcement of “facially neutral” laws applied with

discriminatory intent in the post-war South. Gen. Bldg.

Contractors, 458 U.S. at 385–87. To hold, then, that any

violation of a facially neutral law provides an absolute shield

to § 1981 would defeat a central principle of the statute.

Rather, the statute’s history strongly suggests that sufficiently

persuasive evidence of discriminatory enforcement can

demonstrate but-for causation under § 1981, even in an as-

applied challenge.

Moreover, we have long understood that a law may be

fair on its face but grossly unfair in its enforcement. The

classic case is Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Yick Wo operated a laundry in San Francisco. The city

ordinance provided that no person could operate a laundry in

San Francisco without obtaining consent from the board of

supervisors, “except the same be located in a building

constructed either of brick or stone.” Id. at 357 (statement of

18 YOSHIKAWA V. SEGUIRANT

facts). Yick Wo alleged that more than 150 persons of

Chinese ancestry were arrested for operating their laundries,

while some 80 others operating “under similar conditions,

[we]re left unmolested.” Id. at 359. Citing the Fourteenth

Amendment and what is now § 1981(a), the Court held that

“[t]hough the law . . . be fair on its face, and impartial in

appearance,” it may be “applied and administered by public

authority with an evil eye and an unequal hand.” Id.

at 373–74. Such maladministration was a “denial of equal

justice” within the meaning of the Fourteenth Amendment.

Id. at 374. Yoshikawa’s allegations, if proven, therefore

establish but-for causation, and the district court did not err

in concluding they support a denial of Seguirant’s motion to

dismiss.

B. Whether Seguirant’s Actions Violated Clearly Established

Law

The district court read Yoshikawa’s complaint to claim

that Seguirant’s “haole” comment demonstrated racial animus

and that Seguirant, motivated by that “racial animus, tried to

prevent the Project from proceeding by engaging in multiple

inspections and issuing multiple violations.” Yoshikawa,

542 F. Supp. 3d at 1111. We have long held that a public

official is not entitled to qualified immunity in a § 1981 case

if he is accused of intentional racial discrimination. See

Gutierrez v. Mun. Ct. of Se. Jud. Dist., L.A. Cnty., 838 F.2d

1031, 1050–51 (9th Cir. 1988), vacated on mootness grounds,

490 U.S. 1016 (1989); Lowe v. City of Monrovia, 775 F.2d

998, 1011 (9th Cir. 1985).5 “The constitutional right to be

5

Although Gutierrez was vacated as moot, we have cited the opinion

favorably—and for this principle in particular—in subsequent decisions.

See, e.g., Sanchez v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir.

YOSHIKAWA V. SEGUIRANT 19

free from such invidious discrimination is so well established

and so essential to the preservation of our constitutional order

that all public officials must be charged with knowledge of

it.” Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980);

see Elliot-Park, 592 F.3d at 1008–09 (same).

Seguirant argues that we have granted qualified immunity

to officials alleged to have acted with racial animus. But the

single case Seguirant cites, Wong v. United States, 373 F.3d

952 (9th Cir. 2004), only reinforces the district court’s

decision here. Wong involved an immigration official who

allegedly discriminated against a non-admitted alien when

considering whether to parole the alien into the United States.

Neither we nor the Supreme Court had ever ruled on whether

such foreign nationals at the border had equal protection

rights. Id. at 970–75. We concluded that Wong’s allegations

were sufficient to state a discrimination claim under the Fifth

Amendment, but we then held the “constitutional uncertainty

regarding race discrimination against nonadmitted aliens”

was “not sufficiently clear” that a reasonable border official

would have recognized the Constitution’s application “with

regard to immigration-related decisions.” Id. at 975–76.

Accordingly, although the complaint did state a constitutional

violation, there was sufficient legal debate on the

applicability of the Fifth Amendment in such a situation prior

to the panel’s decision that a reasonable immigration officer

might not have known that Wong had equal protection rights

at all. Id. Not only, then, did our decision in Wong close this

narrow gap by providing clarity on the question, but it also

1990), as amended on denial of reh’g en banc (1991) (citing Gutierrez for

the holding that “governmental officials are not entitled to qualified

immunity from a section 1981 or section 1983 action based on intentional

discrimination”).

20 YOSHIKAWA V. SEGUIRANT

demonstrated the very limited circumstances under which a

person acting under color of law could commit a

constitutional violation based on intentional discrimination

yet still receive qualified immunity. No reasonable

government official would believe that a homeowner or

contractor in Hawai‘i lacked constitutional rights under the

standard set in Wong.

Seguirant raises a slightly different claim to qualified

immunity. He points out that the McDonnell Douglas test has

been used as a framework for analyzing § 1981 claims in the

employment context. Seguirant argues that there is a circuit

split over the applicability of the fourth element of the test in

non-employment cases. See Lindsey, 447 F.3d at 1145.

Because there is a circuit split, he claims that there is no

clearly established law, and he is entitled to qualified

immunity.

We are not persuaded by this argument. First, for the

reasons we have explained, Yoshikawa has adequately pled

a violation under color of law of a clearly established

right—the right to be free from racial animus in public

decisions—under the Fourteenth Amendment. That is

sufficient to deny Seguirant qualified immunity. But, second,

we are not persuaded that the McDonnell Douglas test is the

proper measure of a § 1981 claim at the motion to dismiss

stage. Even accepting Seguirant’s claim that there is a circuit

split over the proper McDonnell Douglas standard in this

context, his argument is irrelevant to qualified immunity. In

Swierkiewicz v. Sorema N.A., the Supreme Court held that

“under a notice pleading system, it is not appropriate to

require a plaintiff to plead facts establishing a prima facie

case” under McDonnell Douglas. 534 U.S. 506, 511 (2002).

The McDonnell Douglas test “is an evidentiary standard, not

YOSHIKAWA V. SEGUIRANT 21

a pleading requirement” and is therefore both inapposite to

claim sufficiency and inappropriate to apply at the motion to

dismiss stage. Id. at 510–11. Following Swierkiewicz, we

have made clear that the evidentiary strictures of McDonnell

Douglas do not determine the sufficiency of a § 1981 claim.

Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir. 2004)

(“[T]here is little doubt that Swierkiewicz governs complaints

in section 1981 discrimination actions.”). We held that “in

order to survive a Rule 12(b)(6) motion to dismiss, a

complaint asserting a claim . . . pursuant to 42 U.S.C. § 1981”

need only contain a short and plain statement under Rule 8.

Id.; Fed. R. Civ. P. 8(a).

Simply put, invoking McDonnell Douglas at this stage

created unnecessary confusion over the clearly established

law test for qualified immunity. As an evidentiary standard,

the McDonnell Douglas factors do not determine whether a

defendant’s conduct violated a clearly established right;

instead, they are used only as a potential means to determine

whether a plaintiff has created a triable dispute of fact

regarding discriminatory intent. See Comcast, 140 S. Ct. at

1019 (“For its part, McDonnell Douglas sought only to

supply a tool for assessing claims, typically at summary

judgment, when the plaintiff relies on indirect proof of

discrimination.”); Lowe, 775 F.2d at 1006–07. Indeed,

McDonnell Douglas is not the sine qua non of § 1981 claims;

“a plaintiff can prove disparate treatment either (1) by direct

evidence . . . or (2) by using the burden-shifting framework

set forth in McDonnell Douglas.” Young v. United Parcel

Serv., Inc., 575 U.S. 206, 213 (2015); see also McGinest v.

GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).

We think McDonnell Douglas is inapplicable in the

qualified immunity context for another reason. The purpose

22 YOSHIKAWA V. SEGUIRANT

of the second prong of the qualified immunity inquiry is to

ensure that public officials are on full notice that their

conduct violates the Constitution, and that they acted in spite

of that. See Saucier, 533 U.S. at 206 (“Qualified immunity

operates . . . to ensure that before [governmental officials] are

subjected to suit, [they] are on notice their conduct is

unlawful.”). The McDonnell Douglas test is not suited to that

purpose. As an evidentiary framework, it guides the litigants

in preparing their case. Nothing in that test is designed to put

officials on notice of what the Constitution demands. Indeed,

the disputed fourth step of McDonnell Douglas would require

a plaintiff in a non-employment case to prove that similar

services were available to similarly situated individuals who

were not members of the plaintiff’s protected class. Lindsey,

447 F.3d at 1145. Nothing in that fourth step would apprise

a public official that his conduct was in violation of the

Fourteenth Amendment. Put another way, the disagreement

over the fourth prong of the McDonnell Douglas test does not

represent a circuit split on “an issue so central to the cause of

action alleged, [that] a reasonable official lacks the notice

required before imposing liability.” Ziglar, 137 S. Ct. at 1868

(citation omitted).

Thus, while the district court erred by applying

McDonnell Douglas, it correctly determined that the

complaint stated a claim for racial discrimination under

§ 1981 based upon actions—intentional discrimination in the

enforcement of building codes, evidenced by statements

asserting racial animus as the but-for cause of the official’s

actions—that a reasonable government official would have

known violated clearly established constitutional and

statutory rights.

YOSHIKAWA V. SEGUIRANT 23

IV. CONCLUSION

We affirm the district court’s order denying Seguirant

qualified immunity.

AFFIRMED.