Hitoshi Yoshikawa v. TROY K. SEGUIRANT, Individually

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HITOSHI YOSHIKAWA,
Plaintiff-Appellee,
v.
TROY K. SEGUIRANT, Individually,
Defendant-Appellant,
and
CITY AND COUNTY OF HONOLULU;
GREG TALBOYS; AGT
CONSTRUCTION, LLC; JAMES A.
SCHMIT,
Defendants.
No. 21-15970
D.C. No.
1:18-cv-00162-
JAO-RT
OPINION
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).

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YOSHIKAWA V. SEGUIRANT 2
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.

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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.

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YOSHIKAWA V. SEGUIRANT 4
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

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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

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YOSHIKAWA V. SEGUIRANT 6
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.

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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

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YOSHIKAWA V. SEGUIRANT 8
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.

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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.

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YOSHIKAWA V. SEGUIRANT 10
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

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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

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YOSHIKAWA V. SEGUIRANT 12
“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,

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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.

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YOSHIKAWA V. SEGUIRANT 14
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”

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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

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YOSHIKAWA V. SEGUIRANT 16
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

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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

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YOSHIKAWA V. SEGUIRANT 18
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.

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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”).

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YOSHIKAWA V. SEGUIRANT 20
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

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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

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YOSHIKAWA V. SEGUIRANT 22
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.

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YOSHIKAWA V. SEGUIRANT 23
IV. CONCLUSION
We affirm the district court’s order denying Seguirant
qualified immunity.
AFFIRMED.

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