Paula Whitcomb v. Sumter County Board of Education, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 15, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10443
Non-Argument Calendar
________________________
D.C. Docket No. 7:09-cv-00200-LSC
PAULA WHITCOMB,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
SUMTER COUNTY BOARD OF EDUCATION,
FRED D. PRIMM, JR., individually and in his official capacity
as Superintendent of the Sumter County Board of Education,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 15, 2011)
Before MARCUS, WILSON and MARTIN, Circuit Judges.

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PER CURIAM:
Paula Whitcomb claims that racial discrimination and retaliatory animus
prevented her promotion to several administrative positions. She is seeking relief
against Defendants Dr. Fred D. Primm, Jr. and the Sumter County School Board
(Board) under 42 U.S.C. § 2000e, et seq., the Equal Protection Clause of the
Fourteenth Amendment, and 42 U.S.C. §§ 1981 and 1983. The district court
partially granted the Defendants’ motion for summary judgment by dismissing
Whitcomb’s discrimination claims. However, the district court found a genuine
issue of material fact in Whitcomb’s retaliation claim and partially denied
Defendant’s motion for summary judgment. The court also found that Primm was
not entitled to qualified immunity and the Board could be liable to Whitcomb
under a theory of municipal liability. Primm appeals the district court’s decision
that he is not entitled to qualified immunity and the Board appeals the district
court’s decision that municipal liability exists if Whitcomb establishes
discrimination. We affirm the district court’s determination that Primm was not
entitled to qualified immunity. We dismiss the Board’s interlocutory appeal for
lack of jurisdiction.
In March 2008, Whitcomb filed a charge with the Equal Employment
Opportunity Commission (EEOC) alleging racial discrimination. The complaint
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was referred by the EEOC to Primm on March 26, 2008. On June 2, 2008,
Whitcomb sent a letter of intent to Primm indicating her desire to be considered
for the 2008-2009 assistant principal positions. Primm claims he did not receive
this letter and that Whitcomb did not properly apply. However, it seems that both
Primm and the Board were aware of Whitcomb’s interest in the open positions.
We review a denial of qualified immunity de novo and view the evidence in
the light most favorable to the nonmoving party. Gray ex rel. Alexander v. Bostic,
458 F.3d 1295, 1303 (11th Cir. 2006). We also review subject matter jurisdiction
de novo. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).
I.
Generally, the denial of a motion for summary judgment is not a final order
subject to immediate appeal. Gray, 458 F.3d at 1303. Qualified immunity is “an
entitlement not to stand trial . . . . when a government actor’s discretionary
conduct does not violate clearly established statutory or constitutional rights.”
Koch v. Rugg, 221 F.3d 1283, 1294 (citation and quotation marks omitted). The
Supreme Court held that a denial of qualified immunity on a motion for summary
judgment is immediately appealable when it “concerns solely the pure legal
decision of (1) whether the implicated federal constitutional right was clearly
established and (2) whether the alleged acts violated that law.” Koch, 221 F.3d at,
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1294 (11th Cir. 2000) (citing Johnson v. Jones, 515 U.S. 304, 312, 115 S. Ct.
2151, 2156 (1995)). The appeal must present a “legal question concerning a
clearly established federal right that can be decided apart from considering
sufficiency of the evidence.” Koch, 221 F.3d at 1294. Here, Primm contends that
the district court erred by determining that Primm’s conduct violated clearly
established law; therefore, we have jurisdiction.
Whitcomb concedes that Primm acted within his discretionary capacity at
the time that he allegedly retaliated against her; therefore our analysis focuses on
whether Primm violated clearly established law. We decide whether the alleged
facts show a violation of clearly established law by “(1) defining the official’s
conduct, based on the record viewed most favorably to the non-moving party, and
(2) determining whether a reasonable public official could have believed that the
questioned conduct was lawful under clearly established law.” Koch, 221 F.3d
at1295–96.
We have clearly established a person’s right to be free from retaliation after
complaining of racial discrimination. Andrews v. Lakeshore Rehab. Hosp., 140
F.3d 1405, 1411–13 (11th Cir. 1998). Primm attempts to argue that he did not
violate clearly established federal law because it is unclear whether or not a
reasonable public official would fail to interview a person who did not properly
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apply for a position. Primm’s formulation of the issue is an attempt to reach the
factual determination of the district court that genuine issues of material fact exist.
This is not a proper inquiry. Defining Primm’s conduct in the light most favorable
to Whitcomb, we ask whether the law is clearly established that Primm cannot
retaliate for a complaint of racial discrimination. No reasonable public official
would think that it is permissible to retaliate against an individual for filing an
EEOC complaint. The district court found that a reasonable jury could find that
Primm violated Whitcomb’s clearly established right to be free from retaliation by
failing to even interview Whitcomb for the assistant principal positions. We agree
with this finding and affirm the district court.
II.
Next, the Board claims we have jurisdiction to decide whether the district
court correctly held that there is municipal liability through pendent jurisdiction.
However, “pendent appellate jurisdiction is limited to questions that are
‘inextricably interwoven’ with an issue properly before the appellate court.”
Harris v. Bd. of Educ., 105 F.3d 591, 594 (11th Cir. 1997) (per curiam) (citing
Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S. Ct. 1203, 1212
(1995)). The pendent issue must be essential to the resolution of the issue over
which appellate jurisdiction exists. Swint, 514 U.S. at 51, 115 S. Ct. at 1212. In
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order to determine whether Primm has qualified immunity, it is not necessary to
determine whether the Board could be held liable to Whitcomb on a theory of
municipal liability. Therefore, we dismiss the Board’s appeal for lack of
jurisdiction.
AFFIRMED IN PART AND DISMISSED IN PART
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