author: JORDAN, Circuit Judge:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CATASTROPHE MANAGEMENT SOLUTIONS, Defendant-Appellee.
    No. 14-13482
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 12/13/2016

      Paula René Bruner, Jeremy D. Horowitz, Equal Employment Opportunity Commission, Office of General Counsel-Appellate Services, Washington, DC, Julie Bean, Marsha Lynn Rucker, C. Emanuel Smith, EEOC, Birmingham, AL, for Plaintiff-Appellant.
    David James Middlebrooks, Whitney Ryan Brown, Lehr Middlebrooks & Vree-land, PC, Birmingham, AL, Thomas M. Johnson, Jr., Eugene Scalia, Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, for Defendant-Appellee.
    Joshua P. Thompson, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.
    William S. Consovoy, Consovoy McCarthy, PLLC, Arlington, VA, for Chamber of Commerce of the United States of America.
    Christina Swarns, I, NAACP Legal Defense & Educational Fund, Inc., Criminal Justice Project, New York, NY, for Ami-cus Curiae NAACP Legal Defense.'
    Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO, District Judge.

       The Honorable Eduardo Robreño, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

   JORDAN, Circuit Judge:

We withdraw our previous opinion, dated September 15, 2016, and published at 837 F.3d 1156, and issue this revised opinion:

The Equal Employment Opportunity Commission filed suit on behalf of Chastity Jones, a black job applicant whose offer of employment was rescinded by Catastrophe Management Solutions pursuant to its race-neutral grooming policy when she refused to cut off her dreadlocks. The EEOC alleged that CMS’ conduct constituted discrimination on the basis of Ms. Jones’ race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1) & 2000e-2(m). The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones. See E.E.O.C. v. Catastrophe Mgmt. Solutions, 11 F.Supp.3d 1139, 1142-44 (S.D. Ala. 2014). The district court also denied the EEOC’s motion for leave to amend, concluding that the proposed amended complaint would be futile. The EEOC appealed.

With the benefit of oral argument, we affirm. First, the EEOC — in its proposed amended complaint and in its briefs — conflates the distinct Title VII theories of disparate treatment (the sole theory on which it is proceeding) and disparate impact (the theory it has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks — though culturally associated with race — are an immutable characteristic of black persons. Third, we are not persuaded by the guidance in the EEOC’s Compliance Manual because it conflicts with the position taken by the EEOC in an earlier administrative appeal, and because the EEOC has not persuasively explained why it changed course. Fourth, no court has accepted the EEOC’s view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.

I

The EEOC relies on the allegations in its proposed amended complaint, see Br. of EEOC at 2-6, so we set out those allegations below.

A

CMS, a claims processing company located in Mobile, Alabama, provides customer service support to insurance companies. In 2010, CMS announced that it was seeking candidates with basic computer knowledge and professional phone skills to work as customer service representatives. CMS’ customer representatives do not have contact with the public, as they handle telephone calls in a large call room.

Ms. Jones, who is black, completed an online employment application for the customer service position in May of 2010, and was selected for an in-person interview. She arrived at CMS for her interview several days later dressed in a blue business suit and wearing her hair in short dreadlocks.

After waiting with a number of other applicants, Ms. Jones interviewed with a company representative to discuss the requirements of the position. A short time later, Ms. Jones and other selected applicants were brought into a room as a group.

CMS’ human resources manager, Jeannie Wilson — who is white — informed the applicants in the room, including Ms. Jones, that they had been hired. Ms. Wilson also told the successful applicants that they would have to complete scheduled lab tests and other paperwork before beginning their employment, and she offered to meet privately with anyone who had a conflict with CMS’ schedule. As of this time no one had commented on Ms. Jones’ hair.

Following the meeting, Ms. Jones met with Ms. Wilson privately to discuss a scheduling conflict she had and to request to change her lab test date. Ms. Wilson told Ms. Jones that she could return at a different time for the lab test.

Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her “with the dreadlocks.” When Ms. Jones asked what the problem was, Ms. Wilson said “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Ms. Wilson told Ms. Jones about a male applicant who was asked to cut off his dreadlocks in order to obtain a job with CMS.

When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her to return the paperwork she had been given. Ms. Jones did as requested and left.

At the time, CMS had a race-neutral grooming policy which read as follows: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines.... [HJairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]”

B

Dreadlocks, according to the proposed amended complaint, are “a manner of wearing hair that is common for black people and suitable for black hair texture. Dreadlocks are formed in a black person’s hair naturally, without any manipulation, or by manual manipulation of hair into larger coils.”

The EEOC alleged that the term dread-lock originated during the slave trade in the early history of the United States. “During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves’ hair as ‘dreadful,’ ” and dreadlock became a “commonly used word to refer to the locks that had formed during the slaves’ long trips across the ocean.”

C

The proposed amended complaint also contained some legal conclusions about the concept of race. First, the EEOC stated that race “is a social construct and has no biological definition.” Second, the EEOC asserted that “the concept of race is not limited to or defined by immutable physical characteristics.” Third, according to the EEOC Compliance Manual, the “concept of race encompasses cultural characteristics related to race or ethnicity,” including “grooming practices.” Fourth, although some non-black persons “have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.”

Playing off these legal conclusions, the proposed amended complaint set out allegations about black persons and their hair. The hair of black persons grows “in very tight coarse coils,” which is different than the hair of white persons. “Historically, the texture of hair has been used as a substantial determiner of race,” and “dreadlocks are a method of hair styling suitable for the texture of black hair and [are] culturally associated” with black persons. When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as not being ‘teamplayers,’ ‘radicals,’ ‘troublemakers,’ or not sufficiently assimilated into the corporate and professional world of employment.” Significantly, the proposed amended complaint did not allege that dreadlocks are an immutable characteristic of black persons.

II

Our review in this appeal is plenary. Like the district court, we accept as true the well-pleaded factual allegations in the proposed amended complaint and draw all reasonable inferences in the EEOC’s favor. See, e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal of a complaint for failure to state a claim); St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999) (denial of a motion for leave to amend due to futility). The legal conclusions in the proposed amended complaint, however, are not presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 679-81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013).

A complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In a Title VII case like this one, the EEOC had to set out enough “factual content t[o] allow[] [a] court to draw the reasonable inference” that CMS is liable for the intentional racial discrimination alleged. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (explaining that the “plausibility standard” requires more than a “mere possibility” but is “not akin to a ‘probability requirement’ ”).

Ill

The EEOC claimed in its proposed amended complaint that a “prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” So, according to the EEOC, the decision of CMS to “interpret its race-neutral written grooming policy to ban the wearing of dreadlocks constitutes an employment practice that discriminates on the basis of race.”

The district court dismissed the initial complaint, and concluded that the proposed amended complaint was futile, because “Title VII prohibits discrimination on the basis of immutable characteristics, such as race, color, or natural origin,” and “[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” Catastrophe Mgmt., 11 F.Supp.3d at 1143 (order granting motion to dismiss). The district court was not swayed by the EEOC’s contention that the allegations were sufficient because “hairstyle can be a determinant of racial identity,” explaining that other courts had rejected that argument. See id. The district court also declined the EEOC’s invitation to discard the immutable/mutable distinction for Title VII race discrimination claims. See id. See also D.E. 27 at 1-2 (order denying leave to amend because the EEOC had already presented its more detailed allegations as legal arguments in support of the initial complaint, and those arguments had been rejected).

The EEOC advances a number of arguments on appeal in support of its position that denying a black person employment on the basis of her dreadlocks through the application of a race-neutral grooming policy constitutes intentional discrimination on the basis of race in violation of Title VII. The arguments, which build on each other, are that dreadlocks are a natural outgrowth of the immutable trait of black hair texture; that the dreadlocks hairstyle is directly associated with the immutable trait of race; that dreadlocks can be a symbolic expression of racial pride; and that targeting dreadlocks as a basis for employment can be a form of racial stereotyping. See Br. of EEOC at 14-39.

A

Before we address these arguments, we discuss an overarching problem concerning the EEOC’s liability theory. Despite some loose language in its proposed amended complaint, the EEOC confirmed at oral argument that it is proceeding only on a disparate treatment theory under 42 U.S.C. § 2000e-2(a)(1) (making it “unlawful [for a covered employer] to fail or refuse to hire or to discharge any individual ... because of such individual’s race, color, religion, sex or national origin”), and is not pursuing a disparate impact theory under 42 U.S.C. § 2000e-2(k)(l) (permitting disparate impact claims for unlawful employment practices and setting out applicable burdens of proof).

This matters because the two theories are not interchangeable, and “courts must be careful to distinguish between the[m.]” Raytheon Co. v. Hernandez, 540 U.S. 44, 53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). See also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 (11th Cir. 2000) (concluding that allowing plaintiffs who alleged disparate treatment to assert a disparate impact claim “would unwisely conflate the distinct theories of disparate impact and disparate treatment”). To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. See Ricci v. DeS-tefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). In contrast, a disparate impact claim does not require proof of discriminatory intent. A disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups. See id. Given the EEOC’s disparate treatment claim, the proposed amended complaint had to contain sufficient factual allegations to set out a plausible claim that CMS intentionally discriminated against Ms. Jones, individually, because of her race.

Despite its decision to assert only a disparate treatment claim, the EEOC at times conflates the two liability theories, making disparate impact arguments in support of its disparate treatment claim. See Br. of Chamber of Commerce of the United States as Amicus Curiae at 14-19 (pointing this out). The EEOC, for example, faults the district court for not allowing expert testimony on the “racial impact of a dreadlock ban” and for failing to acknowledge “the critical disadvantage at which the dreadlock ban places Black applicants.” Br. of EEOC at 7-8, 18 (emphasis added). It also asserts that “the people most adversely and significantly affected by a dreadlocks ban, such as CMS’, are African-Americans.” Id. at 31 (emphasis added). And it argues that “a policy which critically disadvantages or affects members of one group over another” can support an intentional discrimination claim. See Reply Br. of EEOC at 16 (emphasis added). Because this is a disparate treatment case, and only a disparate treatment case, we do not address further the EEOC’s arguments that CMS’ race-neutral grooming policy had (or potentially had) a disproportionate effect on other black job applicants.

B

In its notice of supplemental authority the EEOC relies on the Supreme Court’s recent decision in Young v. United Parcel Serv., Inc., — U.S.-, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015), a case involving 42 U.S.C. § 2000e(k) — a provision of the Pregnancy Discrimination Act — to support its use of disparate impact arguments in this action. Young, however, does not work a dramatic shift in disparate treatment jurisprudence.

In Young, the Supreme Court dealt with the accommodation requirements of the PDA. Specifically, it considered how to implement the statutory mandate that employers treat pregnancy-related disabilities like nonpregnancy-related disabilities in a situation where an employer does not treat all nonpregnancy-related disabilities alike. Young held that a pregnant employee who seeks to show disparate treatment in such a scenario may do so through the application of the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Young, 135 S.Ct. at 1353-54. If an employer offers apparently legitimate reasons for failing to accommodate pregnant employees, the plaintiff may assert that the proffered reasons are pretextual by providing “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather— when considered along with the burden imposed — give rise to an inference of intentional discrimination.” Id. at 1354. For example, a plaintiff may provide evidence that an employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. See id. at 1354-55.

The rationale and holding in Young are based on, and therefore limited to, the language in a specific provision of the PDA. Young is not, as the EEOC suggests, automatically transferable to a disparate treatment case under Title VII involving allegations of intentional racial discrimination.

Despite the textual differences between the Title VII disparate treatment provision at issue here (§ 2000e-2(a)(l)) and the PDA provision at issue in Young (§ 2000e(k)), the EEOC argues that the following language from Young supports its use of disparate impact concepts in a disparate treatment case:

[Djisparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpre-textual reason for doing so.

135 S.Ct. at 1350 (internal citations omitted). The quoted passage, however, merely explains that disparate treatment liability attaches only when an employer intentionally harms members of a protected group. It summarizes the familiar framework courts use to assess disparate treatment claims at summary judgment, where direct proof of intentional discrimination is unavailable: the McDonnell Douglas burden-shifting framework, which places the burden on the employer to articulate a legitimate reason for taking an adverse employment action once an employee establishes a prima facie case.

We do not read the passage from Young in the inverse to stand for the proposition that an employer’s neutral policy can engender disparate treatment liability merely because it has an unintended adverse effect on members of a protected group. The crux of the disparate treatment inquiry, and the question the McDonnell Douglas framework seeks to answer, is whether the employer intentionally discriminated against particular persons on an impermissible basis, not whether there was a disparate impact on a protected group as a whole. An allegation of adverse consequences, without more, is not sufficient to state a claim for disparate treatment. Cf. id. at 1355 (“the continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination avoids confusing the disparate-treatment and disparate-impact doctrines”).

IY

The question in a disparate treatment case is “whether the protected trait actually motivated the employer’s decision.” Raytheon, 540 U.S. at 52, 124 S.Ct. 513 (ellipses and internal quotation marks omitted). Generally speaking, “[a] plaintiff can prove disparate treatment ... by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or ... by [circumstantial evidence] using the burden-shifting framework set forth in McDonnell Douglas.” Young, 135 S.Ct. at 1345. See also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005) (explaining that McDonnell Douglas “is not the exclusive means” for showing intentional discrimination through circumstantial evidence).

Title VII does not define the term “race.” And, in the more than 50 years since Title VII was enacted, the EEOC has not seen fit to issue a regulation defining the term. See EEOC Compliance Manual, § 15-11, at 4 (2006) (“Title VII does not contain a definition of ‘race,’ nor has the Commission adopted one.”). This appeal requires us to consider, at least in part, what “race” encompasses under Title VII because the EEOC maintains that “if [] individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.” Br. of EEOC at 20.

A

“The meaning of the word ‘race’ in Title VII is, like any other question of statutory interpretation, a question of law for the court.” Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words are not defined in a statute, they are “interpreted as taking their ordinary, contemporary, common meaning,” Sandifer v. U.S. Steel Corp., — U.S.-, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014) (citation and internal quotation marks omitted), and one of the ways to figure out that meaning is by looking at dictionaries in existence around the time of enactment. See, e.g., St. Francis College v. Al-Khazraji, 481 U.S. 604, 609-12, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (consulting 19th century dictionaries to determine the meaning of “race” in a case arising under 42 U.S.C. § 1981, which became law in 1866).

In the 1960s, as today, “race” was a complex concept that defied a single definition. Take, for example, the following discussion in a leading 1961 dictionary: “In technical discriminations, all more or less controversial and often lending themselves to great popular misunderstanding or misuse, RACE is anthropological and ethnological in force, usu[ally] implying a physical type with certain underlying characteristics, as a particular color of skin or shape of skull ... although sometimes, and most controversially, other presumed factors are chosen, such as place of origin ... or common root language.” Webster’s Third New International Dictionary of the English Language 1870 (unabridged 1961).

Nevertheless, most dictionaries at that time tied “race” to common physical characteristics or traits existing through ancestry, descent, or heredity. See id. (defining “race” as “the descendants of a common ancestor: a family, tribe, people, or nation belonging to the same stock” or “a class or kind of individuals with common characteristics, interests, appearance, or habits as if derived from a common ancestor,” or “a division of mankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type (Caucasian =) (Mongoloid =)”); A Dictionary of the Social Sciences 569 (Julius Gould & William Kolb eds. 1964) (“A race is a subdivision of a species, individual members of which display with some frequency a number of hereditary attributes that have become associated with one another in some measure through considerable degree of in-breeding among the ancestors of the group during a substantial part of their recent evolution.”); A Dictionary of Sociology 142 (G. Duncan Mitchell ed. 1968) (“Biologically speaking the concept of race refers to a population sharing a gene-pool giving rise to a characteristic distribution of physical characteristics determined by heredity. There are no clear cut boundaries between racial groups thus defined and considerable variations may be exhibited within races.”). One specialty dictionary, while defining “race” as an “anthropological term denoting a large group of persons distinguished by significant hereditary physical traits,” cautioned that “[a] common misconception is that cultural traits sufficiently differentiate races.” Dictionary of Political Science 440 (Joseph Dunne ed. 1964).

From the sources we have been able to review, it appears more likely than not that “race,” as a matter of language and usage, referred to common physical characteristics shared by a group of people and transmitted by their ancestors over time. Although the period dictionaries did not use the word “immutable” to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.

There is little support for the position of the EEOC that the 1964 Congress meant for Title VII to protect “individual expression ... tied to a protected race.” Br. of EEOC at 20. Indeed, from a legal standpoint, it appears that “race” was then mostly understood in terms of inherited physical characteristics. See Black’s Law Dictionary 1423 (4th ed. 1951) (“Race. An ethnical stock; a great division of mankind having in common certain distinguishing physical peculiarities constituting a comprehensive class appearing to be derived from a distinct primitive source. A tribal or national stock, a division or subdivision of one of the great racial stocks of mankind distinguished by minor peculiarities. Descent.”) (citing cases).

It may be that today “race” is recognized as a “social construct,” Ho by Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather than an absolute biological truth. See also Al~ Khazraji, 481 U.S. at 610 n.4, 107 S.Ct. 2022 (noting that some, but not all, scientists have concluded that “racial elassifiea-tions are for the most part sociopolitical, rather than biological, in nature”); The American Heritage Dictionary of the English Language 1441 (4th ed. 2009) (usage note for “race”: “The notion of race is nearly as problematic from a scientific point of view as it is from a social one.”). But our possible current reality does not tell us what the country’s collective Zeitgeist was when Congress enacted Title VII half a century ago. “That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.” Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to Race Consciousness and Colorblindness in Post-Slavery America, 54 Ala. L. Rev. 483, 515 (2003).

B

If we assume, however, that the quest for the ordinary understanding of “race” in the 1960s does not have a clear winner, then we must look for answers elsewhere. Some cases from the former Fifth Circuit provide us with binding guidance, giving some credence to Felix Frankfurter’s adage that “[n]o judge writes on a wholly clean slate.” Walter Hamilton, Preview of a Justice, 48 Yale L.J. 819, 821 (1939) (quoting Felix Frankfurter, The Commerce Clause under Marshall, Taney, and Waite 12 (1937)). As we explain below, those cases teach that Title VII protects against discrimination based on immutable characteristics.

In Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), we addressed a Title VII sex discrimination claim by a male job applicant who was denied a position because his hair was too long. Although the employer interpreted its neutral dress/grooming policy to prohibit the wearing of long hair only by men, and although the plaintiff argued that he was the victim of sexual stereotyping (i.e., the view that only women should have long hair), we affirmed the grant of summary judgment in favor of the employer. See id. at 1092-93.

We held in Willingham that “[ejqual employment opportunity,” which was the purpose of Title VII, “may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a hiring policy that distinguishes on some other ground, such as grooming or length of hair, is related more closely to the employer’s choice of how to run his business than equality of employment opportunity.” Id. at 1091. We “adopt[ed] the view ... that distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of [Title VII].” Id. at 1092. And we approved the district court’s alternative ground for affirming the grant of summary judgment in favor of the employer — that because grooming and hair standards were also imposed on female employees, men and women were treated equally. See id. In closing, we reiterated that “[pjrivate employers are prohibited from using different hiring policies for men and women only when the distinctions used relate to immutable characteristics or legally protected rights.” Id.

Willingham involved hair length in the context of a sex discrimination claim, but in Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), we applied the immutable characteristic limitation to national origin, another of Title VII’s protected categories. In Garcia a bilingual Mexican-American employee who worked as a salesperson was fired for speaking Spanish to a co-worker on the job in violation of his employer’s English-only policy, and he alleged that his termination was based on his national origin in violation of Title VII (which we referred to as the “EEO Act”). We affirmed the district court’s judgment in favor of the employer following a bench trial. We noted that an expert witness called by the employee had “testified that the Spanish language is the most important aspect of ethnic identification for Mexican-Americans, and it is to them what skin color is to others,” and that testimony formed part of the basis for the claim that the employer’s policy was unlawful. See id. at 267. Although the district court had found that there were other reasons for the employee’s dismissal, we assumed that the use of Spanish was a significant factor in the employer’s decision. See id. at 268.

We explained that neither Title VII nor common understanding “equates national origin with the language that one chooses to speak,” and noted that the English-only rule was not applied to the employee as a “covert basis for national origin discrimination.” Id. Though the employee argued that he was discriminated against on the basis of national origin “because national origin influences or determines his language preference,” we were unpersuaded because the employee was bilingual and was allowed to speak Spanish during breaks. Id. And even if the employer had no genuine business need for the English-only policy, we said that “[n]ational origin must not be confused with ethnic or sociocultural traits or an unrelated status, such as citizenship or alienage.” Id. at 269. Citing Willingham, we emphasized that Title VII “focuses its laser of prohibition” on discriminatory acts based on matters “that are either beyond the victim’s power to alter, or that impose a burden on an employee on one of the prohibited bases.” Id.

The employee in Garcia also argued that the employer’s English-only policy was “discriminatory in impact, even if that result was not intentional, because it was likely to be violated only by Hispanie-Americans and that, therefore, they ha[d] a higher risk of incurring penalties.” Id. at 270. We rejected this argument as well because “there is no disparate impact if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference,” and Title VII “does not support an interpretation that equates the language an employee prefers to use with his national origin.” Id.

What we take away from Willing-ham and Garcia is that, as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices. See Willingham, 507 F.2d at 1092; Garcia, 618 F.2d at 269. And although these two decisions have been criticized by some, see, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. Rev. 1134, 1213-21 (2004), we are not free, as a later panel, to discard the immutable/mutable distinction they set out. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (“[T]he prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of the initial decision’s correctness. Nor is the application of the rule dependent upon the skill of the attorneys or wisdom of the judges involved in the prior decision — upon what was argued or considered.”).

We recognize that the distinction between immutable and mutable characteristics of race can sometimes be a fíne (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not. Compare, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en banc) (recognizing a claim for racial discrimination based on the plaintiffs allegation that she was denied a promotion because she wore her hair in a natural Afro), with, e.g., Rogers v. Am. Airlines, Inc., 527 F.Supp. 229, 232 (S.D.N.Y. 1981) (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of ... artifice”). As one commentator has put it, “the concept of immutability,” though not perfect, “provides a rationale for the protected categories encompassed within the antidiscrimination statutes.” Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483, 1514 (2011).

Critically, the EEOC’s proposed amended complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. That dreadlocks are a “natural outgrowth” of the texture of black hair does not make them an immutable characteristic of race. Under Willing-ham and Garcia, the EEOC failed to state a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race by asking her to cut her dreadlocks pursuant to its race-neutral grooming policy. The EEOC’s allegations — individually or collectively — do not suggest that CMS used that policy as proxy for intentional racial discrimination.

C

The EEOC admitted in its proposed amended complaint that CMS’ grooming policy is race-neutral, but claimed that a “prohibition on dreadlocks in the workplace constitutes race discrimination” because dreadlocks are a racial characteristic, i.e., they “are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” So, as noted earlier, the claim that CMS intentionally discriminated against Ms. Jones on the basis of her race depends on the EEOC’s conception of what “race” means (and how far it extends) under Title VII. See Br. of EEOC at 20 (“In the Title VII context, if the individual expression is tied to a protected race, discrimination based on such expression is a violation of the law.”).

In support of its interpretation of Title VII, the EEOC relies on its own Compliance Manual. See EEOC Compliance Manual, § 15-11, at 4 (2006) (“Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.”). But even if we could ignore Willingham and Garcia, the Compliance Manual does not save the day for the EEOC.

“[T]he rulings, interpretations, and opinions” of an agency charged with enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Compliance Manual, therefore, is entitled to deference “only to the extent that [it has] the power to persuade.” Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citation and internal quotation marks omitted). Factors relevant to determining the persuasiveness of the Compliance Manual, and thus the weight given to the EEOC’s guidance, include “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements[.]” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

The Compliance Manual contravenes the position the EEOC took in an administrative appeal less than a decade ago. See Thomas v. Chertoff, Appeal No. 0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office of Federal Operations Oct. 24, 2008) (concluding, in line with federal cases like Willingham and Rogers, that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies “outside the scope of federal employment discrimination statutes,” even when the prohibition targets “hairstyles generally associated with a particular race”). The EEOC attempts to characterize Thomas as a case about “hair length,” which it concedes is not an immutable trait, as opposed to “natural hair texture” or the “other racial characteristics presented here.” Reply Br. of EEOC at 27 n.5. That is not a basis for distinction, however, because the complainant in Thomas specifically disputed the employer’s hair length policy in the context of “African American males who wear ethnic hair styles such as braids.” See Thomas, 2008 WL 4773208, at *1. And the Commission, in dismissing his complaint, cited Willingham and Rogers approvingly to support the proposition that “prohibitions against ‘ethnic’ hairstyles generally associated with a particular race or ethnic group” are “typically outside the scope of federal employment discrimination statutes because they do not discriminate on the basis of immutable characteristics.” Id. In our view, the Compliance Manual is a change of course from Thomas and, because the EEOC has not provided a reasoned justification for this shift, we choose to not give its guidance much deference or weight in determining the scope of Title VII’s prohibition of racial discrimination. See, e.g., Young, 135 S.Ct. at 1352 (declining to rely significantly on the EEOC Compliance Manual because its guidelines were promulgated recently, took a position about which the EEOC’s previous guidelines were silent, and contradicted positions the EEOC had previously taken).

The Compliance Manual also runs headlong into a wall of contrary caselaw. In the words of a leading treatise, “[c]ourts generally have upheld facially neutral policies regarding mutable characteristics, such as facial hair, despite claims that the policy has an adverse impact on members of a particular race or infringes on the expression of cultural pride and identification.” Barbaba Lindemann & Paul Gbossman, 1 Employment Discrimination Law 6-5 (5th ed. 2012).

As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race. See Cooper v. Am. Airlines, Inc., 149 F.3d 1167, 1998 WL 276235, at *1 (4th Cir. May 26, 1998) (upholding district court’s 12(b)(6) dismissal of claims based on a grooming policy requiring that braided hairstyles be secured to the head or at the nape of the neck); Campbell v. Alabama Dep’t of Corr., No. 2:13-CV-00106-RDP, 2013 WL 2248086, at *2 (N.D. Ala. May 20, 2013) (“A dreadlock hairstyle, like hair length, is not an immutable characteristic.”); Pitts v. Wild Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 WL 1899306, at *5-6 (M.D. Ga. Apr. 25, 2008) (holding that a grooming policy which prohibited dreadlocks and cornrows was outside the scope of federal employment discrimination statutes because it did not discriminate on the basis of immutable characteristics); Batman v. United Parcel Serv., 194 F.Supp.2d 256, 259-67 (S.D.N.Y. 2002) (holding that an employer’s policy prohibiting “unconventional” hairstyles, including dreadlocks, braids, and cornrows, was not racially discriminatory in violation of Title VII); McBride v. Lawstaf, Inc., No. CIV. A.1:96-CV-0196C, 1996 WL 755779, at *2 (N.D. Ga. Sept. 19, 1996) (holding that a grooming policy prohibiting braided hairstyles does not violate Title VII); Rogers, 527 F.Supp. at 232 (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of ... artifice”); Carswell v. Peachford Hosp., No. C80-222A, 1981 WL 224, at *2 (N.D. Ga. May 26, 1981) (“There is no evidence, and this court cannot conclude, that the wearing of beads in one’s hair is an immutable characteristic, such as national origin, race, or sex. Further, this court cannot conclude that the prohibition of beads in the hair by an employer is a subterfuge for discrimination.”); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 470 (N.D. Cal. 1978) (explaining that the “even-handed application of reasonable grooming regulations has uniformly been held not to constitute discrimination on the basis of race”) (internal citations omitted); Thomas v. Firestone Tire & Rubber Co., 392 F.Supp. 373, 375 (N.D. Tex. 1975) (holding that a grooming policy regulating hair length and facial hair, which was applied evenhandedly to employees of all races, did not violate Title VII or 42 U.S.C. § 1981). See also Brown v. D.C. Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) (rejecting claim by black male employees that race-neutral grooming regulation, which prohibited most facial hair, violated Title VII despite contention by employees that the regulation was “an ‘extreme and gross suppression of them as black men and (was) a badge of slavery’ depriving them ‘of their racial identity and virility’ ”).

D

We would be remiss if we did not acknowledge that, in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of “race” and encompassing cultural characteristics associated with race. But even those calling for such an interpretive change have different visions (however subtle) about how “race” should be defined. Compare, e.g., Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.C.L. L. Rev. 1, 7 (1994) (defining “race” as “a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology and/or ancestry”), and Rich, Performing Racial and Ethnic Identity, 79 N.Y.U. L. Rev. at 1142 (“There is an urgent need to redefine Title VII’s definition of race and ethnicity to include both biological, visible racial/ethnic features and performed features associated with racial and ethnic identity.”), with, e.g., D. Wendy Greene, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It?, 79 U. Colo. L. Rev. 1355, 1385 (2008) (“Race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behavior are not ‘uniquely’ or ‘exclusively ‘performed’ by, or attributed to a particular racial group.”), and Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decision-making, 104 Yale L. J. 2009, 2012 (1995) (suggesting that discrimination on the basis of race might include “personal characteristics that ... intersect seamlessly with [one’s racial] self-definition”).

Yet the call for interpreting “race” as including culture has not been unanimous. This is in part because culture itself is (or can be) a very broad and ever-changing concept. See, e.g., Richard T. Ford, Race as Culture: Why Not?, 47 U.C.L.A. L. Rev. 1803, 1813 (2000) (“Culture is a much more problematic category for legal intervention than race, because culture in a broad sense encompasses almost any possible motivation for human behavior.”). Cf. Annelise Riles, Cultural Conflicts, 71 L. & Contemp. Probs. 273, 285 (2008) (“[CJultures are hybrid, overlapping, and creole: forces from trade to education to migration to popular culture and transnational law ensure that all persons participate in multiple cultures at once. Cultural elements circulate globally, and they are always changing. From this point of view, ‘culture’ is more of a constant act of translation and re-creation or re-presentation than it is a fixed and given thing.”).

Assuming that general definitional consensus could be achieved among those who advocate the inclusion of culture within the meaning of “race,” and that courts were willing to adopt such a shared understanding of Title VII, that would only be the beginning of a difficult interpretive battle, and there would be other very thorny issues to confront, such as which cultural characteristics or traits to protect. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 893 (2002) (“Even [in] ... a culture-race analysis ... one must still ask whether covering demands pertaining to grooming are sufficiently constitutive of race to violate bans on race discrimination.”). There would also be the related question of whether cultural characteristics or traits associated with one racial group can be absorbed by or transferred to members of a different racial group. At oral argument, for example, the EEOC asserted that if a white person chose to wear dreadlocks as a sign of racial support for her black colleagues, and the employer applied its dreadlocks ban to that person, she too could assert a race-based disparate treatment claim.

The resolution of these issues, moreover, could itself be problematic. See Ford, Race as Culture, 47 U.C.L.A. L. Rev. at 1811 (explaining that recognizing a right to cultural protection under the ambit of “race” would require “courts to determine which expressions are authentic and therefore deserving of protection,” and the “result will often be to discredit anyone who does not fit the culture style ascribed to her racial group”). Even if courts prove sympathetic to the “race as culture” argument, and are somehow freed from current precedent, how are they to choose among the competing definitions of “race”? How are they (and employers, for that matter) to know what cultural practices are associated with a particular “race”? And if cultural characteristics and practices are included as part of “race,” is there a principled way to figure out which ones can be excluded from Title VII’s protection?

We cannot, and should not, forget that we — and courts generally — are tasked with interpreting Title VII, a statute enacted by Congress, and not with grading competing doctoral theses in anthropology or sociology. Along these lines, consider the critique by Richard Ford of the attempt to have Title VII protect cultural characteristics or traits associated with race:

Once a status is ascribed, it is “immutable” in the pragmatic sense that the individual cannot readily alter it. This is the sense in which immutability is relevant to anti-discrimination law.
The mutability of a racial characteristic then, is strictly speaking, irrelevant, but not because — as difference discourse would have it — anti-discrimination law should prohibit discrimination based on mutable as well as immutable racial characteristics, but rather because racial characteristics generally are irrelevant. And it is quite right to say that anti-discrimination law prohibits discrimination on the basis of “immutable characteristics.” But it does not follow that the immutable characteristics in question are characteristics of race; instead they are any characteristic of potential plaintiffs that may be proxies for racial status.
This cuts against some common locutions that the law prohibits discrimination against racial groups; that it prohibits discrimination on the basis of racial characteristics; that it protects racial minorities; worst of all that it “protects race.” On my formulation it does none of these. Indeed it could not do these things because to do them it would first require a definition of a racial group, racial characteristic, and/or race — none of which courts have readily [at] hand. Instead, law prohibits discrimination on the basis of race — something it can do without knowing what race is and indeed without accepting that race is something that is knowable. To prohibit discrimination on the basis of race, we need only know that there is a set of ideas about race that many people accept and decide to prohibit them from acting on the basis of these ideas.

Richard Ford, Racial Culture: A Critique 103 (2005).

Our point is not to take a stand on any side of this debate — we are, after all, bound by Willingham and Garcia — but rather to suggest that, given the role and complexity of race in our society, and the many different voices in the discussion, it may not be a bad idea to try to resolve through the democratic process what “race” means (or should mean) in Title VIL Cf. Juan F. Perea, Ethnicity and Prejudice: Reevaluating ‘National Origin’ Discrimination under Title VII, 35 Wm. & Mary L. Rev. 805, 861 (1994) (proposing that Congress amend Title VII to protect against discrimination based on ethnic traits).

V

Ms. Jones told CMS that she would not cut her dreadlocks in order to secure a job, and we respect that intensely personal decision and all it entails. But, for the reasons we have set out, the EEOC’s original and proposed amended complaint did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race. The district court therefore did not err in dismissing the original complaint and in concluding that the proposed amended complaint was futile.

AFFIRMED.

      . We conclude that the notice of appeal was timely because the EEOC’s motion for leave to amend — which in part challenged the basis for the district court’s dismissal of the original complaint — is properly treated as a Rule 59(e) motion which tolled the time for appeal. See Giuffre v. Deutsche Bank Nat. Trust Co., 759 F.3d 134, 137 (1st Cir. 2014) (holding that a plaintiff's post-judgment motion for leave to file an amended complaint tolled the time to appeal because ”[i]n substance, [the] motion challenged the legal foundation of the dismissal order and called on the judge to either revoke that order or alter it to allow him leave to amend”); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir. 2000) (holding that a Rule 15 motion filed within the time limit for filing a Rule 59(e) motion tolls the time for filing a notice of appeal); Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (holding that a motion for leave to amend constituted a timely Rule 59(e) motion, and thus, the time for filing a notice of appeal commenced when the district court denied the motion).

      . Statistical evidence, of course, can sometimes be probative of intentional discrimination, see, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-40 & n.20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), but the EEOC did not allege, and does not claim, that there is statistical evidence showing (or allowing a reasonable inference of) a pattern or practice of disparate treatment on the part of CMS. Nor is there any claim that CMS applied its grooming policy differently to black applicants or employees, as was the case in Hollins v. Atl. Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999).

      . Of note, some contemporary judicial decisions and dictionaries still provide understandings of "race” tied to biological and physical characteristics. See, e.g., Abdullahi v. Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) ("A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits.”); 2 Shorter Oxford English Dictionary 2445 (5th ed. 2002) (defining "race” in part as "a group or set, esp. of people, having a common feature or features,” or “a group of living things connected by common descent or origin,” or “[a]ny of the major divisions of humankind, having in common distinct physical features or ethnic background”). And in the Geneva Convention Implementation Act of 1987, legislation that post-dated Title VII by about two decades, Congress defined the term "racial group” as "a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.” 18 U.S.C. § 1093(6). By citing to this provision, we do not mean to suggest that the definition of a term in one statute can be automatically used when the same term is undefined in a separate statute. We merely point out that in the late 1980s Congress still thought of "race,” in at least one context, as including common physical characteristics.

      . On several occasions we have reaffirmed the central holding of Willingham that Title VII protects against discrimination based on immutable characteristics, i.e., those that an employee is born with or cannot change. See, e.g., Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1389 (11th Cir. 1998); Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984).

      . The EEOC did assert that dreadlocks are an immutable characteristic of black persons, but it made that assertion (which conflicted with what the proposed amended complaint alleged) only in its motion for leave to amend. See D.E. 21 at 1. We do not consider this assertion, for facts contained in a motion or brief “cannot substitute for missing allegations in the complaint.” Kedzierski v. Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord

        Associated Press v. All Headline News Corp., 608 F.Supp.2d 454, 464 (S.D.N.Y. 2009) ("Conclusory assertions in a memorandum of law are not a substitute for plausible allegations in a complaint.'').

      . Religion is, of course, different from race in many ways, but it bears noting that Congress amended Title VII in 1972 to expand protection for "religious observance and practice.” See 42 U.S.C. § 2000e(j); E.E.O.C. v. Aber-crombie & Fitch Stores, Inc., - U.S. -, 135 S.Ct. 2028, 2034, 192 L.Ed.2d 35 (2015). It has not, however, prohibited discrimination on the basis of cultural practices associated with race.


source: Caselaw Access Project

author: WILLIAM PRYOR, Circuit Judge:

license: Public Domain

text:
    Treneshia DUKES, Plaintiff-Appellant, v. Nicholas DEATON, in his individual capacity, Steve Branham, in his individual and supervisory capacity, Defendants-Appellees.
    No. 15-14373
    United States Court of Appeals, Eleventh Circuit.
    (January 26, 2017)

      Mario Bernard Williams, Williams Oino-nen, LLC, David E. Betts, Betts & Associates, Danielle T. Davis, The Grant Bldg., Atlanta, GA, for Plaintiff-Appellant.
    Jack Reynolds Hancock, Arash Ali Sabzevari, Forest Park, GA, Wayne Steven Melnick, Freeman Mathis & Gary, LLP, Brian Richard Dempsey, Quintamos, Prieto, Wood & Boyer, P.A., Atlanta, GA, for Defendants-Appellees.
    Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and UNGARO, District Judge.

       Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires that we decide whether a police officer who threw a diversionary device, known colloquially as a “flashbang,” into a dark room occupied by two sleeping individuals, without first visually inspecting the room, is entitled to qualified immunity against a complaint of excessive force, 42 U.S.C. § 1983, and to official immunity against a complaint of assault and battery. At dawn, officers of the Clayton County, Georgia, Narcotics Unit executed a search warrant for Jason Ward’s apartment. Ward and his girlfriend, Treneshia Dukes, were asleep in his bedroom. After an officer detonated a flashbang outside the apartment and another officer broke the glass in a window to the bedroom, Officer Nicholas Deaton threw a flashbang into the bedroom. The flashbang exploded near Dukes, who suffered serious bums. Dukes filed a complaint against Deaton and Deaton’s supervisor, Commander Stephen Branham, for excessive force, assault, and battery. The district court granted the officers summary judgment on the grounds that they are immune from suit. Although we agree with Dukes that Deaton used excessive force, we also agree with the district court that Deaton is entitled to qualified immunity because it was not clearly established that his conduct violated the Constitution. And he is entitled to official immunity because Dukes offers no proof that Deaton intended to injure Dukes. Deaton’s supervisor, Branham, also enjoys qualified immunity from the complaint against his subordinate. We affirm.

I. BACKGROUND

On July 19, 2010, a special agent with the Narcotics Unit of Clayton County, Georgia, obtained a warrant to search Jason Ward’s apartment. The application for the warrant stated that a confidential informant had observed a “small quantity of a green leafy substance suspected to be marijuana” in the possession of Ward. The application also stated that Ward had several arrests for possession of marijuana, sold narcotics from his apartment, and was known to carry a silver nine-millimeter handgun. The application sought a “no-knock” provision because “drug dealers commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” A magistrate judge approved the no-knock provision.

Ward resided in a two-bedroom apartment on the first floor of an apartment complex. The front door to the apartment lay halfway down a short hallway. A window in Ward’s bedroom faced an outdoor courtyard. Adjacent to Ward’s bedroom, a living room with sliding glass doors opened onto a small balcony overlooking the courtyard.

To execute the search warrant, Stephen Branham, the commander of the county SWAT team, prepared an operational plan with four teams: Alpha, Bravo, Charlie, and Delta. Alpha was the “entry team.” Its job was to breach the main door to Ward’s apartment and secure the persons inside. Bravo was the support team. Its job was to wait outside and enter the apartment through the sliding glass door if help was needed. Deaton was a member of Bravo team. Charlie was a diversion team. Its job was to divert Ward’s attention by performing a “break and rake” on his bedroom window. A break and rake is a tactic in which an officer breaks and clears out all of the glass in a window. This tactic is used to cover a room until the rest of the officers make entry. It is also used as a diversionary tactic. Delta team, composed of only Officer Suzanne Bennett, was also a diversion team. Bennett’s job was to deploy a “bang-pole,” a stick with a flash-bang on the end of it, on the outside wall of the apartment.

The flashbang manual used by the county SWAT team explains that police use flashbangs in “high-risk warrant service” to “minimize the risk to all parties through the temporary distraction or disorientation of potentially violent or dangerous subjects.” The manual classifies flashbangs as explosives that can generate heat in “excess of 2,000 degrees centigrade,” a flash of light up to 80 times brighter than the flashbulb of a camera, and over 150 decibels of noise for less than one half of a second. Because flashbangs have the potential to cause “serious bodily injury,” Deaton and Branham testified that they received official instruction to visually inspect an area first before deploying a flashbang. The operational plan contemplated the use of two flashbangs — one thrown by Officer Scott Malette through the front door, the other deployed by Officer Bennett with the bang-pole. But the plan vested all SWAT team members with the authority to use more flashbangs if needed.

At 5:00 a.m. on July 21, the SWAT team members met to review the operational plan. Half an hour later, the SWAT team executed the warrant. Ward and his girlfriend, Treneshia Dukes, were asleep in the bedroom of Ward’s apartment. Ward was awakened by a “boom” and then heard his “window break and shattering.” Next, he remembered “Treneshia screaming,” telling “her to get down,” then grabbing the “pistol up under my head — up under my pillow,” and “kicking into the hallway.” Ward never discharged his gun. Dukes heard a “boom, and then [heard] the window like rattling and shattering ..., and like as I’m waking up I just seen an object coming towards me.” Dukes did not see who threw the object because she “was asleep.” After the object hit her and exploded, Dukes ran into the bathroom where she was detained by the police.

The SWAT team detonated three flash-bangs during the search. Bennett and Mal-Iette deployed their flashbangs as the operational plan prescribed. Deaton deployed the third flashbang. He was the only officer outside the window with a flashbang and testified that he threw his flashbang outside the window.

Although Deaton argues that his flash-bang detonated outside the apartment, we construe the facts and draw all inferences from the evidence in the light most favorable to the non-movant, Dukes. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Viewed in that light, Deaton threw the flashbang through the bedroom window where it landed near Dukes. Dukes testified that an object came through the window; that she was under a comforter; that the object landed on her right thigh; that the object “flashed” and “exploded”; that the explosion “blinded” her; and that the sound from the object “discombobulated” her, causing her run “into the [bedroom] wall.” Several witnesses who saw the bedroom after the search testified that the walls were covered in black residue consistent with an explosion. For example, Andrea Ward, who was asleep in the second bedroom of the apartment the morning of the raid, testified that “the bedroom looked like it had been on fire, the window was busted out. The room was a mess and there was a black something, smoke and stuff on the walls, black smoke was on the walls in the hallway also.”

Dukes suffered severe burns across both thighs and her right arm that Deaton testified were consistent with the detonation of a flashbang. She was admitted to the hospital for three days after the raid. Ward was arrested and later convicted of being a felon in possession of a firearm.

Dukes filed a complaint against Officer Deaton and Commander Branham in the district court. The complaint alleged a violation of Dukes’s right to be free from excessive force under the Fourth Amendment, 42 U.S.C § 1983, and state law claims of assault and battery against Dea-ton. She alleged a claim of supervisory liability against Branham.

After the close of discovery, Branham and Deaton moved for, and the district court granted, summary judgment. The district court inferred in Dukes’s favor that Deaton threw a flashbang that landed on Dukes, but concluded that Deaton was entitled to qualified immunity against the claim of excessive force, official immunity against the claims of assault and battery, and that Branham was entitled to qualified immunity against the claim of supervisory liability.

II. STANDARD OF REVIEW

We review de novo whether the officers are entitled to immunity. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012) (official immunity); Townsend v. Jefferson Cty., 601 F.3d 1152, 1157 (11th Cir. 2010) (qualified immunity). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In an appeal of a denial of summary judgment based on qualified immunity, ‘[a]ll evidence must be viewed in the light most favorable to the nonmoving party.’ ” Townsend, 601 F.3d at 1157 (alteration in original) (quoting Crosby v. Monroe Cty., 394 F.3d 1328, 1332 (11th Cir. 2004)).

III. DISCUSSION

Dukes challenges the grants of immunity to both Deaton and Branham. Dukes argues that the district court erred when it granted Deaton qualified immunity against her claim of excessive force, when it grant ed Deaton official immunity against her claims of assault and battery, and when it granted Branham qualified immunity against her claim of supervisory liability. These arguments fail.

Both officers are entitled to immunity. Although we conclude that Deaton’s conduct violated the Fourth Amendment, qualified immunity protects him from suit because his violation was not clearly established in law when he acted. And official immunity protects Deaton from Dukes’s complaint of assault and battery because she offers no evidence that he threw the flashbang with the intent to injure her. Qualified immunity also protects Branham because his subordinate’s constitutional violation was not clearly established.

A. Deaton is Entitled to Qualified Immunity.

“Qualified immunity protects ... officers from liability in [section] 1983 actions as long ‘as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The officer bears the initial burden to prove that he acted within his discretionary authority, Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), which neither party disputes in this appeal. With discretionary authority established, the burden shifts to Dukes to prove that Deaton is not entitled to qualified immunity. Id.

To determine whether an officer is not entitled to qualified immunity at summary judgment, we employ a two-part inquiry. First, we ask “whether the facts, [t]aken in the light most favorable to the party asserting the injury, ... show [that] the officer’s conduct violated a [federal] right.” Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (first and third alterations in original) (quoting Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014)). Second, we ask “whether the right in question was ‘clearly established’ at the time of the violation.” Id. (quoting Tolan, 134 S.Ct. at 1866). When we perform this analysis, we “may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S.Ct. at 1866. Our function at summary judgment is to “determine whether there is a genuine issue for trial,” not to weigh the evidence. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

As a threshold matter, Dukes argues that the record supports a factual inference that Deaton intentionally threw the flashbang at Dukes, but we disagree. In support of her argument, Dukes cites the testimony of Deaton and Branham that their training requires a visual inspection of an area before they deploy a flashbang into that area. This testimony does not warrant the inference that Deaton looked into the bedroom, saw Dukes, and threw the flashbang toward her. Dukes’s argument would require us to infer that Deaton followed his training in one way by looking into the room, but ignored his training in another way by purposefully harming a bystander, Dukes. Although we must draw all inferences in favor of the non-movant at summary judgment, those inferences must be plausible. Mize, 93 F.3d at 742-43. The record does not support a reasonable inference that Deaton intentionally threw the flashbang at Dukes.

1. Deaton Violated the Fourth Amendment.

Dukes argues, and we agree, that Deaton’s deployment of the flashbang constituted excessive force in violation of the Fourth Amendment. Official action constitutes excessive force when it is objectively unreasonable. Salvato, 790 F.3d at 1293. To measure the objective reasonableness of official action, we weigh “the quantum of force employed” against “the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by flight.” Id. (citation omitted). But we do not apply these factors mechanically. Id. Whether an officer’s actions are “objectively reasonable” is a function of “the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation omitted).

The facts construed in the light most favorable to Dukes establish that Deaton used excessive force. Deaton’s conduct posed a significant risk of harm. He threw a flashbang that can generate heat in excess of 2,000 degrees Celsius into a dark room in which the occupants were asleep. He also failed to inspect the room, as he was trained to do, to determine whether bystanders, such as Dukes, occupied the room or if other hazards existed. And there existed minimal need for Deaton’s use of force. True, the warrant stated that an informant advised law enforcement that Ward kept a handgun on his person, and the applying officer attested that drug dealers are known to be violent. Perhaps this record could have supported the use of the two flashbangs contemplated by the operational plan to disorient the occupants of the apartment. We need not decide that question. Even if the record supports the use of the first two flashbangs, these earlier flashbangs made Deaton’s deployment gratuitous. The break and rake and the detonation of the flashbang on the exterior wall diverted the attention of Ward and Dukes before Deaton deployed his flash-bang. There is no evidence that Deaton was aware that Ward had drawn his gun or that Dukes or Ward resisted the officers. And the suspected crime that prompted the search was possession and sale of marijuana. Deaton deployed a dangerous device into a dark room for a de minimis return.

The decisions of our sister circuits support our conclusion that Deaton’s conduct was unconstitutional. Our sister circuits have held that an officer’s failure to perform a visual inspection before throwing a flashbang into an area weighs against reasonableness. Estate of Escobedo v. Bender, 600 F.3d 770, 785 (7th Cir. 2010); Boyd v. Benton Cty., 374 F.3d 773, 779 (9th Cir. 2004). And they have held that the use of a flashbang in an area occupied by bystanders, like Dukes, similarly weighs against reasonableness. Bender, 600 F.3d at 786; Boyd, 374 F.3d at 779; cf. Krause v. Jones, 765 F.3d 675, 679 (6th Cir. 2014); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 973 (7th Cir. 2003). The totality of the circumstances establishes that Deaton violated the Fourth Amendment.

2. Deaton’s Violation Was Not Clearly Established.

To overcome qualified immunity, Dukes also must prove that Deaton “violated a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.” Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735,131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Official conduct violates clearly established law if the “contours of [a] right [are] sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right.” Al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (alterations in original) (internal quotation marks omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Because no precedent of the Supreme Court, our Circuit, or the Supreme Court of Georgia has addressed the constitutionality of flashbangs, Dukes must establish that “a general constitutional rule already identified in the decisional law ... applies] with obvious clarity” to Deaton’s conduct. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citations omitted).

To satisfy this narrow exception, official conduct must be so egregious that “every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law.” Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011) (en banc) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)). When this exception for obvious clarity is “properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.” Al-Kidd, 563 U.S. at 743, 131 S.Ct. 2074 (internal quotation marks omitted) (citations omitted). It allows an officer to make “reasonable mistakes” about the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

We conclude that it was not clearly established that Deaton’s conduct was unconstitutional when he acted. Although we recognize that the doctrine of excessive force makes some official conduct off limits even in “novel factual circumstances,” Pelzer, 536 U.S. at 741, 122 S.Ct. 2508, Dea-ton’s conduct was not so lacking in justification that every reasonable officer would know that what he did constituted excessive force. The operational plan contemplated the use of flashbangs to disorient the residents, and there is no evidence Deaton intended to use his flashbang for any other purpose. And the application in support of the search warrant stated that “drug dealers,” such as Ward, “commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” The application also stated that an informant had advised law enforcement that Ward carried a handgun “on his person.” To be sure, Deaton should have followed his training and checked the bedroom before he threw. But a reasonable officer could have found it “difficult ... to determine how the relevant legal doctrine, here excessive force,” would apply. Katz, 583 U.S. at 205, 121 S.Ct. 2151.

Dukes argues that “no decisional law is necessary to inform a reasonable officer that he should not blindly throw a [flash-bang] grenade into the bedroom of a small apartment, at 5:30 a.m., ... occupied[ ] by people who ... were doing nothing other than sleeping,” but this portrait ignores facts stated in the warrant and the purpose of a flashbang. Ward carried a weapon. The warrant stated that drug trafficking occurred in his apartment. A flashbang is meant to disorient and avoid physical harm. And the operational plan permitted the officers to use a flashbang if needed. In the absence of binding caselaw to the contrary, Deaton, though badly mistaken, could have reasonably believed, based on the facts known to the officers on the morning of the search, that throwing a flashbang into Ward’s bedroom was not excessive force.

Our conclusion that Deaton violated the Fourth Amendment, but that the contours of the right were not clearly established, also finds support in the decisions of our sister circuits. In Boyd, for example, the Ninth Circuit ruled that the detonation of a flashbang in a room with up to eight bystanders without first looking was unconstitutional, but that the right was not clearly established. 374 F.3d at 783-84. In Bing ex rel. Bing v. City of Whitehall, the Sixth Circuit also decided that the use of a second flashbang violated the Fourth Amendment, but that the violation was not obvious. 456 F.3d 555, 571 (6th Cir. 2006). Consistent with these decisions, we affirm the ruling that Deaton is entitled to qualified immunity.

B. Deaton is Entitled to Official Immunity.

With two exceptions, the Constitution of Georgia protects public officials from personal liability for actions performed in their official capacity. Ga. Const. Art. I, § II, para. IX. Official immunity does not apply to ministerial acts performed negligently or discretionary acts performed “with actual malice or with intent to cause injury.” Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 60 (2007) (citation omitted). Dukes raises issues about both exceptions.

Dukes argues that the district court erred when it granted Deaton official immunity against her tort claims. Dukes argues that Deaton negligently performed a ministerial act when he deployed the flashbang, or, in the alternative, that the deployment of a flashbang was a discretionary act that Deaton performed with actual malice. Both arguments fail.

Settled Georgia caselaw delineates between ministerial and discretionary acts. “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Id. at 57 (citation omitted). By contrast, “A discretionary act ... calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Id. (citation omitted).

Deaton’s use of a flashbang was discretionary. It called for the “exercise of personal deliberation” because an officer must “examin[e] the facts” and “aet[ ] on [those facts] in a way not specifically directed.” Bajjani, 647 S.E.2d at 57 (citation omitted). The operational plan contemplated the specific use of two flashbangs, but vested every team member with the authority to use flashbangs. The search of Ward’s apartment called for the kind of “split-second deeision[s]” the Supreme Court of Georgia has held are. discretionary. E.g., Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 344 (2001) (holding that a high-speed police chase was discretionary).

Dukes’s argument that we should evaluate the relevant conduct more narrowly fails. She argues that we should examine Deaton’s failure to perform a visual inspection of the bedroom. Dukes argues that Deaton’s training to inspect an area before deploying a flashbang, makes this conduct ministerial. But her argument runs counter to Georgia law. In Phillip v. Hanse, for example, the Supreme Court of Georgia held that a decision of a police officer to engage in a high-speed chase, not his several violations of a police manual, was the relevant conduct for the purpose of official immunity. 281 Ga. 133, 637 S.E.2d 11, 12 (2006). And the Supreme Court of Georgia held that the decision to engage in a high-speed chase is discretionary. Id. Like Hanse, Deaton’s decision to deploy a flash-bang was discretionary despite the violation of his training.

Deaton is entitled to official immunity under Georgia law. An officer is entitled to official immunity for discretionary acts performed in his official capacity unless he acted with actual malice or intent to injure. Bajjani, 647 S.E.2d at 60. Actual malice means “a deliberate intention to do wrong, and does not include implied malice, i.e., the reckless disregard for the rights or safety of others.... A deliberate intention to do wrong ... must be the intent to cause the harm suffered by the plaintiffs.” Id. (citations omitted). Although Dukes asks us to infer that Deaton acted with actual malice, no evidence in the record suggests that Deaton “inten[ded] to cause the harm suffered by” Dukes. Id. She cites Deaton’s training to inspect an area and argues that he likely knew people were in the room, but these facts, at most, establish recklessness. We agree with the district court that Deaton is entitled to official immunity under Georgia law.

C. Branham is Entitled to Qualified Immunity.

Dukes makes two arguments that Bran-ham is liable for Deaton’s conduct under a theory of supervisory liability: that Bran-ham failed to train his officers in the proper use of flashbangs or, in the alternative, that Branham personally participated in the deployment of the flashbang. The first argument fails, and Dukes failed to preserve the second argument.

Dukes argues that Branham failed to train his subordinate officers in the use of flashbangs and that this failure exposes him to supervisory liability for Deaton’s violation of the Fourth Amendment, but we disagree. A supervisor cannot be liable for the constitutional violation of his subordinate if the constitutional violation was not then clearly established. See Keating v. City of Miami, 598 F.3d 753, 763 (11th Cir. 2010) (explaining that supervising officers are only liable under section 1983 if subordinate officers violated clearly established law); Harper v. Lawrence Cty., 592 F.3d 1227, 1235-36 (11th Cir. 2010) (“[W]e must analyze whether Plaintiff properly stated a violation of [constitutional rights] against [the supervisor], and whether those rights were clearly established.”). Branham is entitled to qualified immunity because Deaton’s conduct was not a clearly established violation of the Fourth Amendment.

The district court ruled, and we agree, that Dukes offered her alternative argument too late in an improper attempt to amend her complaint. “A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citation omitted). “At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).” Id. In her amended complaint, Dukes alleged one theory of supervisory liability: Branham’s failure to train his officers in the proper use of flashbangs. Although the amended complaint alleged that Branham gave Deaton “unbridled discretion to deploy [flashbangs],” nowhere did the complaint allege that Branham deployed the flashbang. But in her brief in opposition to Branham’s and Deaton’s ¿lotions for summary judgment Dukes asserted an alternative theory of supervisory liability that “Branham personally participated in the alleged unconstitutional conduct by Branham, himself, throwing a flashbang on to Ms. Dukes.” Personal participation is a distinct ground for supervisory liability, cf. Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir. 2003) (articulating the alternative theories of supervisory liability), which makes the assertion of it in a brief in opposition to summary judgment improper. Gilmour, 382 F.3d at 1315. As a result, we agree with the district court that Branham is entitled to qualified immunity.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Deaton and Branham.