                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                     NOVEMBER 15, 2011
                                            No. 11-10443
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                                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.
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,

                                          3
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

                                          4
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

                                           5
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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