[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

N o . 05-11562

M a r c h 20, 2006

N o n - A r g u m e n t Calendar T H O M A S K. KAHN

CLERK

D . C. Docket No. 03-03107-CV-AR-M

E D D IE L. TUCKER,

Plaintiff-Appellee-

Cross-Appellant-

versus

TALLADEGA CITY SCHOOLS,

Defendant-

Cross-Appellee,

LEONARD MESSER,

in his individual capacity and in his capacity

as Superintendent,

Defendant-Appellant-

Cross-Appellee.

A p p e als from the United States District Court

fo r the Northern District of Alabama

(M a rch 20, 2006)

B efo re ANDERSON, BIRCH and CARNES, Circuit Judges.

P E R CURIAM: A fter Eddie Tucker was terminated as Coordinator of the Continuous L earn in g Center (CLC) within the Talladega City School system, he brought this actio n against the Talladega City School District and Lee Messer, the su p erin ten d en t of that school district, alleging violations of Title VII, 42U.S.C. §§ 1 9 8 1 and 1983. The district court granted summary judgment to superintendent M esser on the Title VII and § 1981 claims, but the court denied summary judgment o n the § 1983 claim, finding that Messer was not entitled to the defense of q u alified immunity. The district court also granted partial summary judgment to th e School District on the § 1981 and § 1983 claims. Therefore, the only claims th at remain for trial are Tucker's Title VII claim against the School District and his § 1983 claim against Messer.

The district court determined that under Fed. R. Civ. P. 54(b) there was no ju s t reason for delay and directed entry of final judgment as to the claims for which su m m ary judgment in favor of the defendants had been entered. Messer brings this in terlo cu to ry appeal from the denial of qualified immunity on the § 1983 claim ag ain st him. Tucker cross-appeals the granting of summary judgment to Messer on th e § 1981 claim and to the School District on the § 1981 and § 1983 claims. I.

W e will first address the district court's denial of qualified immunity to d efen d an t Lee Messer on the § 1983 claim. A public defendant acting within his d is cr etio n a ry authority is entitled to qualified immunity unless that official violated a right of the plaintiff's that was clearly established. Cook v. Gwinnett County S c h o o l District, 414 F.3d 1313, 1315 (11th Cir. 2005). The district court held that a reasonable jury could find that the First Amendment protected Tucker's speech an d that there was a causal connection between the speech or Tucker's EEOC activ ity and his termination, so that his termination was a violation of his First A m e n d m e n t rights. The court also held that the law was clearly established b ecau se, assuming that Messer knew that he was retaliating against Tucker for his p u b lic comments, no reasonable Superintendent could have thought that he could resp o n d by recommending termination.

T u ck er raises an initial challenge to this court's jurisdiction to hear Messer's in terlo cu to ry appeal. This Court has jurisdiction over Messer's appeal only if it tu rn s on a question of law; we do not have jurisdiction if Messer is merely ch allen g in g the sufficiency of the evidence to support the district court's denial of h is motion for summary judgment on qualified immunity grounds. Johnson v. Jones, 515 U.S. 304, 313­18, 115 S.Ct. 2151, 2156­58 (1995); Cook, 414 F.3d at 1 3 1 5 ; Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir. 1996).

To establish a First Amendment claim of retaliation under § 1983, an em p lo yee must show that: "(1) the speech involved a matter of public concern; (2) th e employee's free speech interests outweighed the employer's interest in effectiv e and efficient fulfillment of its responsibilities; and (3) the speech played a su b stan tial part in the adverse employment action." Cook, 414 F.3d at 1318. The b u rd en then shifts to the employer to show (4) that it would have made the same d ecisio n even absent the protected speech. Id. The first two factors are questions o f law, commonly referred to as the Pickering/Connick test. Id. The latter two are q u estio n s of fact that go to "whether the alleged adverse employment action was in retaliatio n for the protected speech." Id.

Most of the protected speech involved statements Tucker made urging more h irin g of minorities and expressing his concern about the treatment of minority stu d en ts and students at the CLC. In any event, Messer concedes that Tucker's sp eech involved a matter of public concern, thus satisfying the first element.

Messer's initial argument is that Tucker cannot satisfy the second element of the P ic k e rin g /C o n n ic k test. However, in his brief Messer actually concedes that T u ck er's free speech interests outweighed his own interest in effective and efficien t fulfillment of his responsibilities which is what the second element is ab o u t. Messer states that "[t]he timing of Mr. Tucker's speech could not have im p e d e d Mr. Messer's ability to perform his duties." App. Br. at 45. He further s ta te s that "Mr. Tucker's speech did not impede Mr. Messer's ability to perform h is duties, [his] continuous insubordination did." Id. Messer also suggests no in te re sts of the School Board that justified interfering with Tucker's speech. If T u c k e r 's speech did not impede Messer's interest in performing his duties, as M e ss er concedes, Messer did not have an interest in curtailing that speech which co u ld outweigh Tucker's First Amendment interest in speaking on matters of p u b lic concern.

What Messer is actually arguing is that certain insubordinate behavior by T u ck er justified his termination. There were thirty-two specifications of in su b o rd in atio n including, for example, failure to follow proper leave procedures, lyin g about the purpose of an absence from the CLC, intentionally being late for m e etin g s , and making some statements that Messer does not concede were p ro tected speech. This argument goes to whether the termination of Tucker was in retaliatio n for his protected speech or was for conduct other than protected speech, an inquiry that belongs under the third and fourth prongs of the test.

T h e district court determined that a reasonable jury could find a causal co n n ec tio n between Tucker's protected speech and his termination. Messer's arg u m en ts to us go only to whether there is enough evidence of a causal connection to establish that the termination was in retaliation for the protected speech. This is a question of fact and Messer's arguments are that the evidence is insufficient to p erm it factfindings of retaliatory motive. This is exactly the sort of sufficiency of th e evidence question which we have no jurisdiction to review interlocutorily.

T h e qualified immunity inquiry also requires us to determine if the law was c le ar ly established at the time of the alleged violation. If Messer had raised an a rg u m e n t that the law was not clearly established at the time he recommended T u ck er's termination that would have been a question of law over which we would h a v e interlocutory appellate jurisdiction. Messer's arguments, however, are that T u c k e r was fired for his insubordination and not in retaliation for his protected sp eech . Messer does not contend that the law prohibiting an employer from retaliatin g against an employee for the employee's exercise of constitutionally p ro tected speech was not clearly established at the time Tucker was fired. He is arg u in g only that his termination of Tucker was not an act of retaliation.

Messer attempts to state a legal issue by arguing that it was not clearly estab lish ed that terminating a teacher "who had thirty incidents of misconduct, one o f which involved barring two male children from school until they repaid him tw ice the cost of ladies' shoes the teacher purchased for them" would violate fed eral law. But Tucker does not contend that firing him for that alleged reason w o u ld have violated the First Amendment, and the district court did not imply that it would have. Instead, the dispute is: was Tucker fired for a reason such as that w h ich does not involve his admittedly protected speech, or was he fired because of h is protected speech? Characterizing this evidentiary sufficiency dispute as one of law is not enough to mask its true nature.

Messer relies on cases where we have stated that "a defendant in a First A m e n d m e n t suit will only rarely be on notice that his actions are unlawful." See M artin v. Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998); see also Dartland v. M e tr o p o lita n Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989). The problem w ith Messer's argument is that those cases were discussing the "intensely factsp ecific" legal determinations that must be made under the first two prongs of the P ick erin g /C o n n ick test. See Martin, 141 F.3d at 1420; Dartland, 866 F.2d at 1323.

I n those cases, this Court considered (1) whether certain speech was co n stitu tio n ally protected or (2) whether the employer's interest in effectively p e r fo r m in g his duties outweighed the employee's interest in making the protected sp eech . Id. We held that those are questions of law not susceptible to bright-line ru les. Id. However, as we have already noted, Messer is not arguing about those q u e stio n s of law. He has conceded the first two prongs of the Pickering/Connick test and disputes only the sufficiency of the evidence under the third and fourth p ro n g s of it. This being nothing more than an evidentiary sufficiency dispute, we h av e no interlocutory appellate jurisdiction to decide it. Accordingly, we will d ism iss Messer's appeal from the district court's denial of qualified immunity.

T h is dismissal is without prejudice to pursuit of the defense at trial. See Cottrell, 8 5 F.3d at 1487­88.

II.

W e have jurisdiction over the remaining issues we are going to address b ecau se the district court directed the entry of final judgment under Fed. R. Civ. P.

5 4 (b ) as to the claims on which it granted summary judgment for the defendants.

S ee In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339­40 (1 1 th Cir. 1982).

A grant of summary judgment is subject to de novo review. Key West H arb o u r Dev. Corp. v. City of Key West, 987 F.2d 723, 726 (11th Cir. 1996). We v iew the evidence and all factual inferences in the light most favorable to Tucker to d eterm in e whether any genuine issue of material fact exists and whether the d efen d an ts are entitled to judgment as a matter of law. Id.

A.

T u ck er cross-appeals the district court's grant of summary judgment to M e ss er on Tucker's § 1981 retaliation claim.1 The district court held that Messer w as not subject to suit under § 1981 in his individual capacity "because there is no e v id e n tia ry basis for a claim of racial bias in any action that Messer took." Tucker arg u es that he does not have to show racial bias because his termination was in retaliatio n for his opposition to race discrimination.

T h is Court has recognized that § 1981 includes a cause of action for retaliatio n , but the elements of a claim for retaliation under § 1981 are not settled.

See Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412§ 1981 retaliation claim s are the same is an `open question' in this Circuit."). A plaintiff may bring a § 1981 claim not only for racial discrimination, but also for retaliation due to his o p p o sitio n to race discrimination. See Pinkard v. Pullman-Standard, 678 F.2d 1 2 1 1 , 1229 (5th Cir. Unit B 1982)2 (holding that district court erred in granting ju d g m en t to the defendant because the plaintiff had demonstrated that his discharge w as tainted by his advocacy of minority rights). In Pinkard this Court explicitly reco g n ized that § 1981 claims "may be based upon retaliatory action taken against a n employee for the employee's lawful advocacy of the rights of racial minorities." Id. at 1229 n.15.

P in k ard was decided prior to the Supreme Court's decision in Patterson v. M cL ean Credit Union, 491 U.S. 164, 109 S. Ct. 2363 (1989), which significantly n arro w ed the reach of § 1981. After Patterson, Congress amended § 1981 in 1991 to restore § 1981 to the broader interpretation recognized pre-Patterson. 42U.S.C.

§ 1981(b). That amendment was a direct response to Patterson and its progeny.

See Andrews, 140 F.3d at 1410§ 1981). Thus, while P in k ard is relevant, it does not address "the types of retaliation claims cognizable u n d e r § 1981 in light of the Civil Rights Act of 1991." Id. at 1412. We have, h o w ev er, cited Pinkard in support of § 1981 retaliation claims brought after the C iv il Rights Act of 1991. See Andrews, 140 F.3d at 1412; Jackson v. Motel 6 M u ltip u r p o s e , Inc., 130 F.3d 999, 1007 (11th Cir. 1997).

M esser relies on our decision in Little v. United Technologies, 103 F.3d 956 (1 1 th Cir. 1997), to support his defense that Tucker had to show racial bias to su rv iv e summary judgment. In that case Little brought a § 1981 retaliation claim ag ain st his employer arguing that his employer unlawfully retaliated against him w h e n he complained to his supervisor about another employee's use of a racial slu r. Id. at 958. We affirmed summary judgment for the employer because Little h ad not produced any evidence "that the discrimination or retaliation allegedly lev elled against him was due to his race." Id. at 961.

On the other hand, T u ck er relies on our decision in Andrews. There we reco g n ized that § 1981 retaliation claims are viable after the 1991 amendment to § 1 9 8 1 , but explained that whether a particular claim is cognizable depends on the sp ecific nature of the retaliation claim. Andrews, 140 F.3d at 1412. We d is tin g u is h e d Little and held that dismissal of the plaintiff's claim was improper b ecau se she had "allege[d] discrimination based on her race and retaliation due to filin g a race-based claim with the EEOC." Id.

Messer contends that Little and Andrews establish that a plaintiff must also b r in g a claim of race discrimination in order to bring a claim of retaliation under § 1 9 8 1 . Although both of those cases did involve race discrimination and retaliation c la im s we have never held that one requires the other. Additionally, we have noted th at at least some § 1981 claims of employment discrimination are analyzed in the sam e manner as Title VII. See Standard v. A.B.E.L. Servs, Inc., 161 F.3d 1318, 1 3 3 0 (11th Cir. 1998) (explicitly addressing a Title VII race discrimination claim w ith the understanding that the same analysis applied to the § 1981 claim because b o th statutes "have the same requirements of proof and use the same analytical fram ew o rk "); Howard v. BP Oil Co., 32 F.3d 520, 524 n.2 (11th Cir. 1994) (same).

Title VII does not require a plaintiff bringing a retaliation claim to also bring a race d iscrim in atio n claim. However, we also recognize that § 1981, unlike Title VII, is d irec ted exclusively toward racial discrimination and, as a result, the plaintiff's c la im must allege discrimination due to race.

R e co g n iz in g that a plaintiff's claim must be about racial discrimination does n o t require us to impose the strict limitation on § 1981 retaliation actions that M e ss er would have us impose. Ruling out a § 1981 retaliation claim unless it was co u p led with a non-retaliation race claim would go a long way toward eviscerating o u r holding in Andrews which recognizes a separate and distinct cause of action fo r retaliation under § 1981.

A n d rew s does establish that § 1981 encompasses a cause of action for retaliatio n . This cause of action includes retaliation for a plaintiff's opposition to r ac e discrimination, whether or not he personally is the victim of that race d is cr im in a tio n . See Jackson, 130 F.3d at 1007 (noting that plaintiff employees w h o were retaliated against when they refused to participate in their employer's d iscrim in atio n against non-white customers could proceed with a retaliation claim u n d e r § 1981(b)); Pinkard, 678 F.2d at 1229. Our decision in Little might be read to require that the claimed retaliation be directly due to the race of the plaintiff, but w e do not believe Little goes that far. If we were to read Little in that way all "retaliatio n " claims under § 1981 would be nothing more than race discrimination claim s. That would not make sense in light of our holding in Andrews that there is a claim for § 1981 retaliation.

In Andrews we did recognize Little as a limitation on when a plaintiff p r o p e rly states a prima facie case of retaliation under § 1981. The white plaintiff in Little failed to state a prima facie case based on his complaint about a cow o r k e r 's racial slur that was derogatory toward blacks because the plaintiff failed to allege discrimination due to his own race. See Andrews, 140 F.3d at 1412.

The situation in this case is different. Tucker is an African-American who is claim in g that he was retaliated against because of his complaints on behalf of A frican -A m erican students and teachers. Therefore, the discrimination that forms th e basis for Tucker's complaint is due to his race as an African-American. For th at reason, Little does not preclude Tucker's § 1981 claim, and we will proceed to d is cu s s whether Tucker has established the elements of a prima facie case.

A lth o u g h we have not explicitly held that the elements of a § 1981 retaliatio n claim are the same as the elements of a Title VII retaliation claim, the p arties do not argue that they are different. Instead, they base their arguments on th e Title VII framework. We will accept that joint position for purposes of this ap p eal and will analyze Tucker's claim using the analytical framework for a Title V II retaliation claim. (Because the parties have not raised the issue here, we ex p ress no opinion about whether Messer would be entitled to the defense of q u alified immunity on this claim.) T o establish a prima facie case of retaliation "a plaintiff must show that (1) [h e] engaged in statutorily protected expression; (2) [he] suffered an adverse e m p lo y m e n t action; and (3) the adverse action was causally related to the protected e x p r e ss io n ." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1 9 9 8 ) . After a plaintiff establishes a prima facie case of retaliation, the burden sh ifts to the defendant to produce legitimate reasons for the adverse employment actio n s. Johnson v. Booker T. Washington Broadcasting Serv., 234 F.3d 501, 507 n .6 (11th Cir. 2000). If the defendant offers legitimate reasons, the plaintiff must resp o n d by showing that the employer's reasons are a pretext for retaliation. Id.

Tucker engaged in statutorily protected expression when he filed the Office o f Civil Rights (OCR) and EEOC complaints, and he suffered an adverse em p lo ym en t action when his contract was terminated. Whether there is sufficient ev id en ce to permit a factfinder to find a causal link between Tucker's termination an d any retaliatory animus that Messer may have had is a more difficult question. M e ss er , as Superintendent, had the authority to and did recommend to the Board th a t Tucker's contract be cancelled. Upon Messer's recommendation the Board s ch e d u le d and held a four-day hearing on the charges against Tucker. The Board w as responsible for the ultimate decision to terminate Tucker. Ala. Code § 16-249 (2003) (providing that only the board may cancel the employment contract of a teach er on continuing service status).

In Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999), w e held that the plaintiff had no actionable Title VII sex discrimination claim in a sim ilar situation. Stimpson's employer, the city, recommended her termination to th e Board of Civil Appeals. Id. at 1330. The city had no power under Alabama law to terminate Stimpson. Id. After a three-day hearing the Board decided to te rm in a te Stimpson and she brought a Title VII action alleging that she was term in ated because of her sex. Id. at 1332. This Court held that the causal link b etw een any discriminatory animus the City might have had and her termination w as broken by the Board's hearing and its independent decision to terminate her.

Id. at 1331.

In Stimpson we distinguished that case from previous ones in which we stated that a party with no power to actually terminate an employee might still be liab le for the ultimate termination if the recommendation directly resulted in the em p lo yee's discharge. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1 2 4 8 (11th Cir. 1998) (when the harasser and decisionmaker are not the same p e r so n the plaintiff must prove that the harasser's discriminatory animus caused th e employer to terminate the plaintiff in order to establish an inference of cau satio n ); Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d 291, 294 (11th Cir. 1988).

One way for the plaintiff to show causation is to demonstrate that "the d ecisio n m ak er followed the biased recommendation without independently in v e stig a tin g the complaint against the employee. In such a case, the recommender is using the decisionmaker as a mere conduit, or `cat's paw' to give effect to the reco m m en d er's discriminatory animus." Stimpson, 186 F.3d at 1332.

T u ck er has not made such a showing here. The Talladega Board is the only en tity with the power to terminate Tucker. After receiving Messer's r ec o m m e n d a tio n the Board held a four-day hearing. At that hearing Tucker was rep resen ted by counsel and was able to put on evidence and witnesses in his d efen se. The facts relating to the procedure used for the termination in this case fall squarely within the holding of Stimpson, and therefore Tucker is unable to estab lish a genuine issue of material fact that his termination was the direct result o f any retaliatory animus Messer might have held against him. For that reason, T u c k e r is unable to establish a prima facie case of retaliation against Messer under § 1981.

B.

T u ck er also appeals from the district court's grant of summary judgment to th e Talladega School Board on his § 1981 and § 1983 claims. The district court co n clu d ed that Tucker had failed to demonstrate that the Board had an official policy of retaliating against employees who exercise protected speech, and, th e r ef o r e, Tucker failed to get around the Board's Monell defense.3 T h e district court's decision was based on an incorrect understanding of M o n ell. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.

C t. 2018 (1978). Tucker is not relying on a theory of respondeat superior based on M esser's recommendation that the Board terminate Tucker. Tucker's theory is one o f direct liability. The Board had final policy-making authority with respect to the d ecisio n to discharge Tucker. This is sufficient to satisfy Monell; Tucker did not h av e to demonstrate that the Board had "an official policy . . . of retaliating against em p lo yees who exercise protected speech." 1.

A s we noted above with respect to the qualified immunity inquiry, to estab lish a First Amendment violation under § 1983, an employee must show that: "(1) the speech involved a matter of public concern; (2) the employee's free speech in terests outweighed the employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse em p lo ym en t action." Cook, 414 F.3d at 1318. The burden then shifts to the em p lo yer to show that it would have made the same decision even absent the p ro tected speech. Id.

The Board does not argue that Tucker has not satisfied the first two elements o f his prima facie case but focuses on whether Tucker demonstrated that his speech w as a substantial part of the Board's decision to terminate him. The Board held a fo u r-d ay hearing on Tucker's termination and considered the thirty-two reasons th at Messer had offered as grounds for Tucker's termination. The Board ultimately relied on twenty-two of those reasons to conclude that Tucker had been guilty of n eg lect of duty, incompetence, and insubordination. Tucker argues that the long list of charges itself demonstrates that Messer and the Board were trying to "drum u p " reasons for his termination and that some of the charges actually relate to his p ro tected speech activity and, therefore, demonstrate that the Board was retaliating ag ain st him specifically for that protected speech activity.

T u ck er argues that the Board had to undergo three separate investigations related to race discrimination because of his complaints to the Department of E d u catio n 's Office of Civil Rights. In response to these investigations Talladega en tered into two different conciliation agreements with the Department of E d u catio n . The Board had also received four months before Tucker's termination a determination letter from the EEOC in response to Tucker's complaint. That letter found probable cause to believe that the Board had retaliated against Tucker.

Tucker argues that this letter "reopened old wounds" and encouraged the Board to lo o k for a reason to terminate him. Tucker claims that he tried to speak to the B o ard on multiple occasions at public meetings but that the Board would not allow h im to speak. He also complains that he presented multiple grievances to the B o ard and that these were all rejected.

A s evidence of the Board's retaliatory motive Tucker cites statements made b y the Administration's attorney at his hearing. In her opening statement at the h ea rin g she stated: "Mr. Tucker has created--also created dissension as he's c ritic iz ed the CLC. He's criticized that school over which he presides." In her clo sin g statement the Administration's attorney discussed a reprimand letter from th e former Superintendent to Tucker regarding his failure to constructively address issu es at the CLC. The attorney noted that "instead of constructively addressing th o se [issues] with the superintendent, [Tucker] turned to the media and thereby w a s not constructively addressing those issues." Similarly, Tucker cites another statem en t by the Administration's attorney in the course of questioning a witness in which she explained that her questioning "has to do with creating dissension am o n g not only the teachers but among the superintendent and giving a poor im p ressio n of the school board." T u c k e r also points to two of the charges related to letters that he received fro m the former Superintendent reprimanding him for his public comments r eg a r d in g the school over which he was supervisor. Tucker contends that in clu d in g these letters among the charges indicates animus toward him for his criticism of Board policies. Another charge Tucker relies on was a reprimand T u ck er received for leaving the CLC during school hours without notifying the C en tral Office. Tucker indicated that he had a dental appointment but went to City H all and was taped for an interview with the local news instead.

T u ck er has presented sufficient evidence to create a jury question as to w h eth er his protected speech was a substantial part of the Board's decision to term in ate him. We have recognized that Tucker's burden in this regard is "not a h eav y one." Stanley v. City of Dalton, 219 F.3d 1280, 1291 (11th Cir. 2000). The b u r d e n shifts to the Board to demonstrate by a preponderance of the evidence that it would have made the same decision regardless of Tucker's protected speech.

S u p erin ten d en t Messer presented the Board with thirty-two charges to s u p p o r t his recommendation for Tucker's termination. The Board ultimately relied o n twenty-two of those charges. The Board points to "the shoe incident" as the "c ata ly st" for Tucker's termination. Although Tucker disputes many of the factual d etails surrounding this incident he does not dispute that he took two boys from sch o o l to Wal-Mart without the knowledge of his supervisor and without the p erm issio n of the children's parents in order to buy dress code compliant shoes.

The Board also relies on charges relating to other incidents as further legitimate reaso n s for its action. Tucker disputes many of the facts surrounding these in cid en ts as well, but they include his failure to follow the proper procedure for h a n d lin g student medication and failure to follow the proper reporting procedure w h en a student reported sexual harassment.

We agree with the district court that "the fact that Tucker was arguably a co n tin u in g thorn in the Board's side can form the basis for a logical, if weak, a rg u m e n t that the Board . . . [was] `laying in wait' for Tucker." Because Tucker h a s produced enough evidence from which a reasonable jury could find that retaliatio n for his protected speech played a substantial part in the Board's decision to terminate him and the Board has not produced enough evidence to demonstrate th at there is no genuine issue of material fact as to whether it would have made the sam e decision, a jury must decide the question of whether Tucker's termination w as the result of his protected speech.

W e make one additional observation about Tucker's reliance on the alleged retaliato ry motivations of Messer in recommending his termination. The Board did n o t ratify any of Messer's motivation. To prove that his speech played a su b stan tial part in the Board's decision to terminate him and to dispute whether the B o ard would have made the same decision absent his speech, Tucker must prove retaliato ry motive on the part of the Board itself. In order for the Board to be liable fo r any unconstitutional motive of Messer it must have ratified not only Messer's reco m m en d atio n , but the unconstitutional basis for it as well. Matthews v. C o lu m b ia County, 294 F.3d 1294, 1297 (11th Cir. 2002). Mere knowledge of u n co n stitu tio n al motive by Messer is insufficient for ratification. Id. at 1298. For th e same reasons that we concluded the Board was not the "cat's paw," we co n clu d e the Board did not merely ratify the allegedly unconstitutional basis for M esser's recommendation to terminate Tucker. The Board held a four-day hearing at which Tucker was represented by counsel and able to put on evidence and w itn e s se s in his defense. The Board made its own decision and Tucker has p resen ted enough evidence for a factfinder to conclude that the decision was the r es u lt of retaliatory animus on the part of the Board itself.

2.

T u ck er also cross-appeals the district court's grant of summary judgment to th e Board on his § 1981 retaliation claim. Section 1981 does not provide an in d ep en d en t cause of action against state actors. Butts v. County of Volusia, 222 F .3 d 891, 894 (11th Cir. 2000). Any such claim must be brought under the rem ed ial provisions of § 1983. Id. Therefore, Tucker may not rely on a theory of resp o n d eat superior based on any alleged retaliatory motive of Messer. Id. at 893.

A s we have just noted, Tucker must demonstrate that the Board itself acted with r eta lia to r y motive without regard to the motive of Messer and he has presented su fficien t evidence for a factfinder to make that finding.

B e ca u s e the parties have assumed that the Title VII retaliation framework also applies to this § 1981 retaliation claim, we will also. The Board does not in d ep en d en tly argue the merits of the elements of Tucker's § 1981 claim and, th erefo re, we will also assume that the Board concedes that Tucker engaged in a p r o te cte d activity and suffered an adverse employment action. We will further assu m e that the Board's arguments that it would have made the same decision with resp ect to Tucker's First Amendment § 1983 claim apply with equal force to this § 1 9 8 1 claim.

Tucker's protected activity consists of his complaints filed with the D ep artm en t of Education's OCR and his EEOC complaint. Tucker filed OCR c o m p la in ts in October 2000, April 2001and January 2002. OCR initiated in v e stig a tio n s as a result of all three complaints and the Talladega School District a g r ee d to take certain steps in response to two of the investigations. Tucker filed an EEOC complaint on February 26, 2001. Two years later, on February 6, 2003, th e Board received an EEOC determination letter stating that there was reasonable cau se to believe Tucker had suffered discrimination in retaliation for his activities.

Although the receipt of the letter does not constitute a protected activity, Tucker attem p ts to establish causation by arguing that the letter "reopened old wounds" an d caused the Board to revisit all of Tucker's prior OCR and EEOC activity.

Tucker further argues that the Board had knowledge of all of his OCR and EEOC activ ity and that the Board that terminated him was composed of the same m e m b e r s at the time of the OCR and EEOC investigations. As we stated above, w e believe Tucker has presented enough evidence from which a reasonable jury m ig h t infer that the Board was "laying in wait" for him. Therefore, we will co n sid er the legitimate, non-discriminatory reasons that the Board offers for its te rm in a tio n of Tucker.

B ecau se the Board relies on the same reasons here as it relied on to d em o n stra te that it would have made the same decision for purposes of Tucker's F ir st Amendment claim, our analysis is the same. The Board offered legitimate, n o n - d is cr im in a to r y reasons for its decision to terminate Tucker. However, we are u n a b le to say that there is no genuine issue of material fact that Tucker was te rm in a te d for these reasons instead of in retaliation for protected conduct. A jury n eed s to decide that factual issue.

III.

M esser's appeal from the district court's denial of qualified immunity is D I S M I S S E D for lack of jurisdiction. The district court's grant of summary ju d g m en t to Messer on the § 1981 claim is AFFIRMED. The district court's grant o f summary judgment to the Board on the § 1983 First Amendment retaliation claim and the § 1981 retaliation claim are REVERSED.

1 Messer and the Board both argue in footnotes in their briefs that Tucker failed to comply with Fed. R. App. P. 3 because of a defect in his "Civil Appeal Statement." Rule 3 requires an appellant to timely file a notice of appeal which must "designate the judgment, order, or part thereof being appealed." Fed. R. App. P. 3(a)(2) & (c)(1)(B). Tucker filed a timely notice of appeal stating that he appealed "from the February 17, 2005 order granting partial summary judgment against him." This was sufficient to comply with Rule 3.

2 Decisions of Unit B of the former Fifth Circuit, even those made after October 1, 1981 are binding on this Court. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).

3 The district court initially held that the Board was entitled to summary judgment because Tucker's § 1981 and § 1983 retaliation claims were precluded by the findings of the Alabama State Tenure Commission when it rejected his appeal of the Board's decision to terminate him. In response to Tucker's motion for reconsideration, the district court recognized that its preclusion holding was contrary to this Court's decision in Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376 (11th Cir. 1988). The district court modified its order to also grant summary judgment to the Board on the basis of Monell. The Board conceded in its brief to this court that the Alabama Tenure Commission's decision is not preclusive as a matter of law. Therefore, we will not address further the district court's initial holding of preclusion.