FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 April 14, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-10046

________________________

D. C. Docket No. 98-01851-CV-CO-E

ROLLEN JACKSON, 

Plaintiff-Appellant, 

versus 

STATE OF ALABAMA STATE TENURE COMMISSION, 

STATE OF ALABAMA BOARD OF EDUCATION, 

PEGGY CONNELL, Superintendent of the 

Talladega Board of Education in her

individual and in her official capacity, 

Defendants, 

TALLADEGA COUNTY BOARD OF EDUCATION, 

Defendant-Appellee. 

_______________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(April 14, 2005)
2

Before ANDERSON, CARNES and RONEY, Circuit Judges.

CARNES, Circuit Judge:

In 1996 the Talladega County Board of Education fired Rollen Jackson from

his job as a welding instructor at Pittard Area Vocational High School. Shortly

thereafter, Jackson filed a lawsuit in federal district court. In the eight years of

litigation that followed, his case has been before four district court judges and two

juries. It is now before this Court for the second and final time.

I.

Several incidents preceded Jackson’s termination. During the latter part of

his nearly twenty-year tenure as a welding instructor, Jackson sent numerous

insulting and demeaning letters to members of the Talladega County Board of

Education. Shortly before Jackson was terminated, a student in his welding class

who was not wearing safety gloves was burned on his hand by a welding torch. 

Jackson also went to a Board meeting at which he was not scheduled to participate

and distributed confidential records regarding his special education students,

apparently in an attempt to demonstrate that the classes were overcrowded. 

On October 25, 1996, about a week after that incident at the Board meeting,

Dr. Peggy Connell, who was then the Superintendent of the Board of Education,

notified Jackson that the Board had decided to consider terminating his
3

employment. A public hearing was held and the Board voted to terminate

Jackson’s teaching contract. Jackson filed an administrative complaint with the

EEOC and, after receiving his right-to-sue letter, he filed this lawsuit in federal

district court. His lawsuit claimed that Dr. Connell and the Board: 1) had

impermissibly fired him on account of his race, in violation of Title VII, 42 U.S.C.

§ 2000e et seq., 42 U.S.C. §§ 1981, 1981(a), and 42 U.S.C. § 1983 (“the race

discrimination claim”); 2) had done so in retaliation for his speech in opposition to

racial discrimination, in violation of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C.

§§ 1981, 1981(a), and 42 U.S.C. § 1983 (“the statutory retaliation claim”); and 3)

had also done so in retaliation for Jackson’s exercise of his First Amendment right

to free speech, in violation of the First Amendment and 42 U.S.C. § 1983 (“the

First Amendment claim”).

The district court, Judge Propst presiding, granted summary judgment to Dr.

Connell and the Board on all counts. With regard to the race discrimination claim,

the court determined that Jackson had presented no direct evidence of

discrimination, but that he had presented sufficient evidence to establish a genuine

issue of material fact as to the existence of a prima facie case under McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). The court also

determined that the Board had proffered a legitimate non-discriminatory reason for
4

Jackson’s termination. The district court concluded, as well, that Jackson had

failed to create a genuine issue of material fact regarding whether the reason

proffered by the Board for his termination was pretextual. For those reasons, the

court granted summary judgment in favor of Dr. Connell and the Board on the race

discrimination claim. 

Regarding Jackson’s statutory retaliation claim, the district court determined

that Jackson’s speech activities were protected and that he had established a prima

facie case of retaliation. However, because the district court decided that Jackson

had failed to create a genuine issue of fact regarding whether the Board’s proffered

reason for discharge was a pretext, it granted summary judgment to Dr. Connell

and the Board on the statutory retaliation claim. 

As for Jackson’s First Amendment claim, the district court applied the

analysis set out in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731

(1968) and Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989). It

determined that Jackson’s speech was a matter of public concern, that his interest

in speaking outweighed the government’s interest in preventing him from doing so,

and that his speech played a substantial role in his termination. Nonetheless, the

district court granted summary judgment in favor of Dr. Connell and the Board
5

because there was no genuine dispute that the Board would have made the same

employment decision regardless of Jackson’s speech. 

Jackson appealed to this Court, and we affirmed in part and reversed in part.

See Jackson v. Ala. State Tenure Comm’n, No. 99-15123 (11th Cir. Feb. 21,

2001). We held that summary judgment in favor of Dr. Connell was appropriate

on all claims because she was not a decisionmaker with regard to Jackson’s

termination. However, we reversed the grant of summary judgment in favor of the

Board on the race discrimination and statutory retaliation claims because we

concluded that the Board had not articulated, as required by McDonnell Douglas, a

non-discriminatory reason, or any reason at all, for Jackson’s termination. 

Similarly, we reversed as to the First Amendment claim because the Board, not

having articulated any reasons for Jackson’s termination, had not established the

Mt. Healthy defense that it would have made the same decision to fire Jackson

regardless of his speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 97 S. Ct. 568 (1977). 

On remand to the district court, the case was assigned to Judge Buttram and

tried before a jury. The jury found in favor of the Board as to the race

discrimination and First Amendment claims; but it returned a verdict in favor of

Jackson on the statutory retaliation claim and awarded him $36,000 in
6

compensatory damages and $150,000 in punitive damages. After the verdict was

rendered, it was discovered that one of the jurors had falsely answered questions

about her criminal history, having failed to disclose that she was convicted for

killing one of her children. For that reason, a new trial was granted. Judge

Buttram recused himself before the second trial, and the case was reassigned to

Judge Nelson. 

Before the second trial, Judge Nelson granted summary judgment to the

Board on both the race discrimination and the statutory retaliation claims, leaving

only Jackson’s First Amendment claim. In resolving this type of First Amendment

claim, a four-step analysis applies, one step of which requires the court to

determine whether the employee’s interest in speaking outweighs the government’s

legitimate interest in preventing the speech in order to promote efficient public

service, an inquiry known as Pickering balancing. See Pickering, 391 U.S. at 568,

88 S. Ct. at 1734–35; Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554,

1563–64 (11th Cir. 1995); Bryson, 888 F.2d at 1565. If the Pickering balance

weighs in favor of the government, the employee cannot prevail on his First

Amendment claim, and there is no point in submitting it to a jury. Brochu v. City

of Riviera Beach, 304 F.3d 1144, 1157 (11th Cir. 2002). 
7

In denying summary judgment on the First Amendment claim, Judge Nelson

noted that in the proceedings before Judge Propst the district court had found that

the Pickering balance weighed in favor of Jackson. Judge Nelson held that,

because this Court did not disturb those findings on appeal, neither would he in

ruling on the Board’s motion for summary judgment. So the First Amendment

claim was heard by another jury in a second trial.

After the close of evidence and before the jury instructions were given, the

Board reminded the district court that Pickering balancing is to be done by the

court (Judge Propst had done it). On that basis, the Board renewed its motion for

judgment as a matter of law under Fed. R. Civ. P. 50, arguing that the balancing

should be decided by the court in its favor. Judge Nelson overruled the Board’s

motion and, parting ways with Judge Propst’s decision, instructed the jury to

perform the Pickering balancing. That was error in light of the well-established

case law dictating that the court, not the jury, must conduct the Pickering

balancing. See Brochu, 304 F.3d at 1157; Beckwith, 58 F.3d at 1563–64; Bryson,

888 F.2d at 1565. 

While the jury was deliberating, Judge Nelson realized his mistake and took

steps to correct it. He called in the jury and explained to it that: “[Pickering

balancing] is not a question for the jury; it’s a question for me, one that I have to
8

answer. . . . [B]ecause I am going to answer question number three[, whether the

Pickering balance favors Jackson,] ‘no,’ then that means there is nothing for you to

do.” After dismissing the jury, Judge Nelson directed Jackson to submit an index

of instances Jackson contended were protected speech; he also instructed both

parties to brief the Board’s Rule 50 motion, even though he had already announced

his intention to grant it. Judge Nelson died before he could enter a written final

judgment.

The case was then assigned to Judge Coogler, who determined that Judge

Nelson had orally granted the Board’s Rule 50 motion for judgment as a matter of

law and had stated his reasons for doing so in open court. Judge Coogler decided

that Fed. R. Civ. P. 63 did not require him to hear the testimony of any witnesses,

because in deciding a Rule 50 motion, which is what Judge Nelson had done, a

court is not allowed to make credibility determinations and must draw all

reasonable factual inferences in favor of the nonmoving party. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51, 120 S. Ct. 2097, 2110

(2000). Judge Coogler completed what he viewed as the “ministerial task” of

formally entering judgment in favor of the Board. 
9

II.

Jackson raises several issues in this appeal. First, he contends that the prior

decision of this Court reversing Judge Propst’s grant of summary judgment in

favor of the Board established as law of the case that Jackson had satisfied certain

elements of his First Amendment and statutory retaliation claims. As a result,

according to Jackson, Judge Nelson violated the law of the case doctrine by reevaluating those elements, which led it to grant both the Board’s motion for

summary judgment on the statutory retaliation claim and its Rule 50 motion for

judgment as a matter of law on the First Amendment claim. 

Second, Jackson contends that even if the law of the case doctrine did not

bar Judge Nelson’s Rule 50 decision, there were subsidiary issues of fact that

should have been decided by the jury before the court undertook the Pickering

balancing. It was error, he argues, to take the case away from the jury before it had

decided those subsidiary fact issues. 

Third, Jackson contends that Rule 63 required Judge Coogler, who inherited

the case from Judge Nelson, to retry it instead of simply entering judgment, and

also that Fed. R. Civ. P. 52 required Judge Coogler to make findings of fact and

conclusions of law. Fourth, Jackson contends that the judgment in the first postremand trial (the one presided over by Judge Buttram) was improperly vacated. 
10

Fifth, Jackson contends that Judge Nelson erred by granting the Board’s motion for

summary judgment on his race discrimination claim. 

We will address each of Jackson’s contentions in turn.

III.

Jackson raises two arguments that rely on the law of the case doctrine. First,

he asserts that this Court’s decision reversing the grant of summary judgment in

favor of the Board on his First Amendment claim established that the Pickering

balance favors him. As a result, Jackson argues, Judge Nelson was barred by the

law of the case doctrine from deciding the Pickering balance issue in favor of the

Board. Second, Jackson argues that our previous decision also established that

there is a genuine issue of material fact with regard to Jackson’s statutory

retaliation claim. Accordingly, he argues that Judge Nelson violated the law of the

case doctrine by granting summary judgment in favor of the Board on that claim. 

A. 

In order to establish that he was fired in violation of the First Amendment,

Jackson first had to demonstrate that his speech involved a matter of public

concern. See Bryson, 888 F.2d at 1565. Second, he had to establish that the

“balance between the interests of the teacher, as a citizen, in commenting upon
11

matters of public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees”

weighed in his favor. See Pickering, 391 U.S. at 568, 88 S. Ct. at 1734–35; see

also Bryson, 888 F.2d at 1565. This step is known as Pickering balancing. Third,

Jackson had to show that his speech played a substantial part in the Board’s

decision to fire him. See Bryson, 888 F.2d at 1565–66. Finally, even if Jackson

were able to establish all three of those elements, his claim would still fail if the

Board proved by a preponderance of the evidence that it would have fired him

regardless of his speech. See id. at 1566. This last possibility is known as a Mt.

Healthy defense. See Mt. Healthy, 429 U.S. at 274, 97 S. Ct. at 568.

When this case was first before the district court (with Judge Propst

presiding), summary judgment was granted in favor of the Board on all the claims. 

In the course of addressing the First Amendment claim, the district court decided

that Jackson’s speech was of public concern, that the Pickering balance weighed in

his favor, and that his speech played a substantial role in his being fired. Despite

that, the court ultimately held that the Board was entitled to summary judgment

because it found that “the only substantial evidence is that the same action would

have been taken” regardless of Jackson’s speech. In other words, the district court

found that the Board had mounted a successful Mt. Healthy defense.
12

On appeal, we reversed the district court’s decision on that claim, explaining

that: “the Board has failed to articulate any reason for Jackson’s termination and,

therefore, cannot yet establish that Jackson would have been terminated absent his

protected speech. Accordingly, summary judgment for the Board on Jackson’s

First Amendment claim was improper.” In the course of our discussion, we

recounted what “[t]he district court found,” but we did not comment on any of its

findings or conclusions other than to point out that it had erred in finding that the

Board had established a Mt. Healthy defense. 

Nonetheless, Jackson argues that, by deciding the Mt. Healthy issue, we

implicitly held in his favor regarding the other elements of his First Amendment

claim, including the Pickering balance. That means, Jackson says, that we

established as law of the case that the Pickering balance favored him, and on

remand the district court (this time with Judge Nelson presiding) violated the law

of the case doctrine by ruling that the Pickering balance weighed in favor of the

Board. That ruling was crucial to the grant of the motion for judgment as a matter

of law to the Board on that claim. 

“Under the law of the case doctrine, both the district court and the appellate

court are generally bound by a prior appellate decision of the same case. The law

of the case doctrine, however, bars consideration of only those legal issues that
13

were actually, or by necessary implication, decided in the former proceeding.” 

Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (internal

quotations and citations omitted). Exceptions to this doctrine apply when 

substantially different evidence is produced, when there has been a change in

controlling authority, or when the prior decision was clearly erroneous and would

result in manifest injustice. Id.; United States v. Robinson, 690 F.2d 869, 872

(11th Cir. 1982).

The first step in the analysis is to identify the legal issues this Court

“actually, or by necessary implication,” decided when we reversed the district

court’s grant of summary judgment. See Oladeinde, 230 F.3d at 1288. Jackson

says that we must have agreed with the district court that the Pickering balance

favored him, because if we had disagreed we could have affirmed on the

alternative ground that he had failed to establish that element. We need not decide

if Jackson’s missed opportunity or implicit agreement argument is correct because,

even if it is, the evidence before Judge Nelson when he entered judgment as a

matter of law was substantially different from the evidence upon which we based

our reversal of Judge Propst’s grant of summary judgment for the Board.

The prior appeal was from a grant of summary judgment based on the record

before the district court at that time. The dispositive question was whether there is
14

a genuine issue of material fact raised by that evidence. See Fed. R. Civ. P. 56(c). 

Even if we necessarily decided that question in Jackson’s favor during the earlier

appeal, we did so only as to the Pickering balance issue framed by the facts (drawn

from the evidence viewed in the light most favorable to Jackson) in that record. 

That is the only Pickering balance issue the district court had before it, and that is

the only one that we could have implicitly decided during the appeal.

When the record changes, which is to say when the evidence and the

inferences that may be drawn from it change, the issue presented changes as well. 

The first exception to the doctrine recognizes that the law of the case is the law

made on a given set of facts, not law yet to be made on different facts. See Davis

v. Town of Lake Park, 245 F.3d 1232, 1237 n.1 (11th Cir. 2001) (“Law of the case

does not apply in this situation because [the later district court judge] based his

post-trial order on a different record than did [the earlier district court judge] when

addressing summary judgment.”); Shelkofsky v. Broughton, 388 F.2d 977 (5th Cir.

1968) (reversal of summary judgment for a trial by jury would not preclude the

district court from later entering summary judgment or judgment as a matter of law

if the evidence offered at trial was insufficient to warrant submission to the jury);

see also Oladeinde, 230 F.3d at 1289; Robinson, 690 F.2d at 872–73. 
15

In reversing Judge Propst’s grant of the Board’s motion for summary

judgment, we had before us limited evidence, including only excerpts from

Jackson’s termination hearing in front of the Board. We had the deposition of only

one Board member, and he was the lone member who voted against Jackson’s

termination. The evidence before us did not contain even an articulation by the

Board of the reasons for Jackson’s termination. The Board’s failure to provide any

reason, legitimate or otherwise, for Jackson’s termination was the stated basis for

our reversal of Judge Propst’s grant of summary judgment in favor of the Board.

By contrast, the record before us now contains the transcript of the two trials

that followed after we reversed the grant of summary judgment. Included is the

testimony of the three Board members who voted to terminate Jackson. Their

testimony discusses in detail the reasons Jackson was fired. It describes, among

other things, Jackson’s acerbic and demeaning letter-writing campaign and its

deleterious effect on the functioning of the school system. That conduct, as well as

his wrongful distribution of confidential student records and his poor job

performance, were among the reasons, the Board members testified, that caused

them to fire him. The new evidence weighs heavily in the Pickering balance on the

government’s side given its need to efficiently and effectively perform its

functions. See Connick v. Myers, 461 U.S. 138, 149–54, 103 S. Ct. 1684, 1691–94
 Jackson relies on Baumer v. United States, 685 F.2d 1318 (11th Cir. 1982), for the 1

proposition that because this evidence was available to the Board when Judge Propst first ruled

on the motion for summary judgment, it should not be allowed to use the evidence now to avoid

the law of the case doctrine. Jackson’s reliance on Baumer is misplaced.

In that decision we held that the law of the case doctrine precluded the district court from

ascertaining the value of an option to purchase land on the date it was granted. Id. at 1319. We

found that, because the first time through the plaintiffs had chosen as part of their trial strategy

not to make any arguments about the value of the option on that date, they were not entitled “to

resurrect a previously abandoned issue.” Id. at 1321. We further stated that “[p]ermitting

evidence of the value of the option when granted was outside the scope of [the] mandate” to the

district court. Id. 

This case is different from Baumer. The Board never abandoned for strategic or other

reasons its argument that the Pickering balance weighed in its favor. And our mandate to the

district court contained no limitation on the evidence that could be considered on this issue on

remand. To the contrary, because we reversed the grant of summary judgment, we anticipated

that more evidence would be developed as the case progressed. In Baumer the trial had already

been conducted at the time of the first appeal.

16

(1983). The articulation of reasons for the termination remedies a problem that

existed when the case was last before us.1

When, after the remand, Judge Nelson granted the Board’s motion based on

his decision that the Pickering balance favored the Board, he considered all of the

new evidence. His ruling that the Pickering balance favored the Board based on

the evidence at the judgment as a matter of law stage is not inconsistent with our

earlier ruling (if we implicitly made one) that the Pickering balance had favored

Jackson based on the evidence before Judge Propst at the summary judgment stage. 

Two different sets of facts framed two different issues and permitted two different

rulings. Even if the law of the case is that the Pickering balance favored Jackson
17

on the summary judgment record before Judge Propst, the law of the case is not

that the Pickering balance favored him on the record as it stood when Judge Nelson

entered judgment as a matter of law for the Board. 

B.

For similar reasons, we reject Jackson’s argument that Judge Nelson’s grant

of summary judgment in favor of the Board on the statutory retaliation claim

violated the law of the case doctrine. Jackson’s argument is that, because we

reversed the grant of summary judgment for the Board on this claim in the first

appeal, Judge Nelson violated the law of the case by entering summary judgment

on the claim after remand. He did that before the second trial began, but after the

first full trial. (As we mentioned, the judgment which resulted from that first trial

was set aside because of juror misconduct.) At the time Judge Nelson entered

summary judgment for the Board, he had before him the transcript of the first trial. 

Included in that transcript was the Board members’ testimony articulating reasons

Jackson was fired. That made the summary judgment issue materially different

from what it had been at the time of the first appeal, when we reversed the first

entry of summary judgment because the Board had not given any reasons for the

termination. Different evidence, different issues. The law of the case did not
18

preclude entry of summary judgment for the Board on the statutory retaliation

claim based on the record as it stood at the end of the first trial. 

IV.

Moving away from the law of the case questions, Jackson’s next contention

concerns the proper allocation of responsibilities between the court and the jury in

deciding the Pickering balance issue. Jackson contends that, even though the

actual balancing is done by the court, subsidiary facts that make up the weights on

each side of the scale must be found by the jury. According to Jackson, Judge

Nelson erred in deciding that the Pickering balance favored the Board without

having the jury decide the underlying facts.

“We acknowledge that sometimes a situation might present a factual dispute

which must be resolved by the jury before the trial judge is able to make the law

calls required” in deciding the Pickering balance. Brochu, 304 F.3d at 1158. 

There is, however, no categorical rule that requires the court to submit issues to the

jury before it can undertake the Pickering balancing. When the facts underlying

the balance are clear, courts can and do decide the Pickering balance issue without

the aid of a jury. See, e.g., Morris v. Crow, 117 F.3d 449, 458 (11th Cir. 1997). 

Here the relevant facts were clear. 
19

In resolving the Pickering balance, “[o]ne relevant consideration is whether

the speech at issue ‘impairs discipline by superiors or harmony among co-workers,

has a detrimental impact on close working relationships for which personal loyalty

and confidence are necessary, or impedes performance of the speaker’s duties or

interferes with the regular operation of the [public employer’s] enterprise.’” Id. at

457–58 (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S. Ct. 2891, 2899

(1987)). In holding that the Pickering balance favored the government employer in

the Morris case, we explained that: “the manner in which Morris’ message was

expressed was disrespectful, demeaning, rude, and insulting, and it was perceived

as such by Morris’ co-workers. It is not difficult to see how Morris’ behavior . . .

could cause serious disciplinary problems, undermine employee morale, and

impair harmony among co-workers. Indeed, it is difficult to imagine how it could

do anything else.” Id. at 458. 

The same is true in this case. There is no dispute that Jackson sent a number

of demeaning and inflammatory letters to, among others, the Superintendent of the

school, the director of the school, and members of the Board. For example,

Jackson sent a letter to the members of the Board in which he described one of the

Board members as a “Grand Wizard of the Klu [sic] Klux Klan” and a “selfish, nobusiness-minded, insulting, disgusting person let alone a[n] ethnic genocizer [sic].” 
20

He also sent a letter describing the then-assistant Superintendent as a “black

overseer with his whip, riding on his stallion with all of the noble trust and loyalty

that the master invested in him,” and stating that after the assistant

Superintendent’s job is done his “Master” (the Superintendent) will “put his big

black boy back in the fields.” Jackson wrote another letter to then-Superintendent

Dr. Connell that called her “very decieving [sic]” and stated: “I think that Dr.

Connell has demonstrated how she feels about the black community. She has our

vote of no confidence.” There were other letters in a similar vein. 

With this evidence, coupled with the testimony of the Board members at the

first trial, Judge Nelson had before him enough undisputed evidence to decide that

Jackson’s conduct, in the words of our Morris decision “could cause serious

disciplinary problems, undermine employee morale, and impair harmony among

co-workers.” 117 F.3d at 458. 

V.

Jackson’s next contention involves Judge Coogler’s actions after he took

over the case. Although Judge Nelson had orally granted the Board’s Rule 50

motion for judgment as a matter of law on the First Amendment claim after the

close of the evidence in the second trial, he died before he made any written

findings of fact and conclusions of law or entered final judgment. Without
 Rule 63 states: 2

If a trial or hearing has been commenced and the judge is unable to proceed, any

other judge may proceed with it upon certifying familiarity with the record and

determining that the proceedings in the case may be completed without prejudice to the

parties. In a hearing or trial without a jury, the successor judge shall at the request of a

party recall any witness whose testimony is material and disputed and who is available to

testify again without undue burden. The successor judge may also recall any other

witness.

Fed. R. Civ. P. 63.

21

recalling any witnesses or entering written findings of fact or conclusions of law of

his own, Judge Coogler entered a formal judgment in favor of the Board based on

Judge Nelson’s oral grant of the Board’s Rule 50 motion for judgment as a matter

of law. 

Jackson argues that before entering judgment Judge Coogler was obligated

by Rule 63 to recall witnesses and hear for himself the testimony that had been

presented at the second trial. Jackson asserts that cases such as Emerson Electric 2

Co. v. General Electric Co., 846 F.2d 1324 (11th Cir. 1988) (per curiam), and Zand

v. C.I.R. Service, 143 F.3d 1393 (11th Cir. 1998), stand for the proposition that,

under Rule 63, any time a judge in a civil case becomes disabled or dies before

issuing findings of fact and conclusions of law, the successor judge must retry the

case. Jackson is wrong.

Emerson and Zand dealt with a version of Rule 63 that was considerably

narrower than the present one. See Emerson, 846 F.2d at 1324; Zand, 143 F.3d at
22

1393. More importantly, in those two cases the underlying trials were before the

bench, not before a jury. Emerson, 846 F.2d at 1324; Zand, 143 F.3d at 1393. 

Rule 63 treats bench trials and jury trials differently. The rule gives the parties the

right to insist that a witness be recalled in a bench trial. Fed. R. Civ. P. 63 (“In a

hearing or trial without a jury, the successor judge shall at the request of a party

recall any witness whose testimony is material and disputed and who is available to

testify again without undue burden.”). The rule does not give that right where a

jury trial is involved. What we have here is a jury trial, not a bench trial. 

That leaves as applicable only Rule 63’s general provision that: “If a trial or

hearing has been commenced and the judge is unable to proceed, any other judge

may proceed with it upon certifying familiarity with the record and determining

that the proceedings in the case may be completed without prejudice to the

parties.” Id. Judge Coogler did certify that he was familiar with the record and he

determined that the proceedings in the case could be completed without prejudice

to the parties; Rule 63 required no more. See id.

Jackson also contends that Judge Coogler violated Rule 52 by entering

judgment without issuing findings of fact and conclusions of law. Rule 52 requires

that “[i]n all actions tried upon the facts without a jury or with an advisory jury, the

court shall find the facts specially and state separately its conclusions of law
 Jackson argues that because the Pickering balance is an issue for the court to decide, see

3

Brochu, 304 F.3d at 1157, the court must issue findings of fact and conclusions of law when

deciding a Rule 50 motion that is based on the outcome of the Pickering balance. Not only is

this interpretation unsupported by the law, but it is at war with the plain language of Rule 52.

23

thereon . . . .” Fed. R. Civ. P. 52(a). The trial we are talking about was not

“without a jury;” it was with a jury.3

The rule also provides that “[f]indings of fact and conclusions of law are

unnecessary on decisions of motions under Rule 12 or 56 or any other motion

except as provided in subdivision (c).” Id. The motion we are talking about was

“any other motion,” because it was under Rule 50 which is not “provided” in

subdivision (c). As a result, neither Judge Nelson nor Judge Coogler were under

any obligation to enter findings of fact and conclusions of law in granting the

Board’s Rule 50 motion for judgment as a matter of law.

VI.

Jackson’s next contention is that the jury’s verdict from the first trial was

improperly vacated because there was no finding that the juror’s undisclosed

criminal conviction caused actual bias or prejudice. The reason Jackson cares is

that, although the jury decided against Jackson on other claims, it decided the

statutory retaliation claim in his favor and awarded him $36,000 in compensatory

damages and $150,000 in punitive damages. He would be happy to have that

verdict reinstated.
24

“In reviewing a trial court’s disposition of a motion to grant a new trial, we

apply an abuse of discretion standard.” McWhorter v. City of Birmingham, 906

F.2d 674, 677 (11th Cir. 1990). Because the trial judge is in the best position to

gauge whether a trial has been contaminated by potentially prejudicial conduct,

“[w]e . . . hesitate to overturn the grant of a new trial based on such grounds.” Id.

The reason that Judge Buttram (the second of four district court judges to be

involved in the case) granted the Board’s motion for a new trial is that one of the

jurors had failed to disclose that she had been convicted of a felony, though that

specific question was asked during voir dire while she was under oath. It was

discovered after the trial that the juror had been convicted of the murder of her

child. 

In addressing the prospective jurors, Judge Buttram had asked: “Are there

any of you who have ever been convicted of a state offense in state court, or a

federal offense in federal court, of a crime punishable by imprisonment for more

than one year, and who have not had your civil rights restored?” The juror in

question did not respond.

Later in the jury selection process, when that juror was introducing herself

and reading the answers to a questionnaire she had been given, she stated: 

“Experience in a lawsuit? No. Experience as a witness in a lawsuit? No. 
25

Experience as a juror. None.” Jackson’s attorney also specifically asked the jurors

whether any of them had “participated as a plaintiff or defendant in a lawsuit.” 

Again, the juror did not respond.

Just before the lawyers started asking questions, Judge Buttram asked: “Can

any of you think of any other matter which you should call to the Court’s attention

which may have some bearing on your qualifications as a juror . . . ?” Again, the

juror did not respond. Judge Buttram then stated: “In other words, . . . maybe

[there is] something that you feel like you need [me] to know about that, that I

have gotten close to, but haven’t asked the question direct to get the response, this

is an opportunity to give you to inform me of any matter that you think that I need

to be aware of that would bear upon your fairness, impartiality or qualifications to

serve in this particular case.” Again, no response. 

The point is that this juror had several opportunities to come clean with the

court about her murder conviction.

In an order clarifying why he had granted the Board’s motion for a new trial,

Judge Buttram stated that he had “granted a new trial based solely upon the

ground that one member of the petit jury was shown to have been statutorily

unqualified to serve as a juror, based upon a prior felony conviction, which she

failed to reveal during voir dire despite direct questioning.” He also said that he
26

“did not consider the effect that said juror might have had on the outcome of the

jury’s deliberations or any possible bias she might have had, so [he] deemed it

unnecessary to hold an evidentiary hearing on such matters.” 

In order to obtain a new trial “because counsel lacked an item of information

which objectively he should have obtained from a juror on voir dire examination[,]

. . . a party must first demonstrate that a juror failed to answer honestly a material

question on voir dire, and then further show that a correct response would have

provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc.

v. Greenwood, 464 U.S. 548, 555–56, 104 S. Ct. 845, 850 (1984). It is undisputed

that a question about prior felony convictions is material to jury service and that an

honest answer from this juror would have provided a basis to challenge her for

cause. United States v. Carpa, 271 F.3d 962, 967 n.5 (11th Cir. 2001) (per curiam)

(“A pending or final felony conviction is a valid basis for challenge for cause.”);

see also 28 U.S.C. § 1865(b)(5). That leaves only whether the juror’s failure to

answer the question was dishonest, instead of inadvertent. Although the district

court did not explicitly state that the juror’s nondisclosure was dishonest, the court

did specifically note that she had failed to reveal her prior felony conviction

“despite direct questioning.” We are satisfied that the court implicitly found that
27

the juror’s failure to speak up was an intentional and dishonest response to an

indisputably material question. 

In some circumstances a juror may have forgotten about a conviction or,

more likely, not realized that her conviction was covered by the question. That is

not a reasonable possibility here. This juror had been convicted in 1986 for

murdering her child and sentenced to fifteen years in an Alabama prison. She

served three years in prison and five years on probation. She could not have

forgotten that. The court asked about convictions for crimes punishable by

imprisonment for more than one year. Having spent three years in prison for

murder, there is no reasonable possibility that this juror could have honestly

doubted that she was covered by the question. 

For these reasons, we conclude that the district court did not abuse its

discretion in granting the Board’s motion for a new trial. See Carpa, 271 F.3d at

966–68.

VII.

Jackson’s final contention is that Judge Nelson, after the judgment in the

first trial was vacated, erred by granting summary judgment in favor of the Board

on Jackson’s race discrimination claim. We review de novo the district court’s

grant of summary judgment, applying the same legal standards as those that control
28

the district court. Indus. Partners, Ltd. v. CSX Transp., Inc., 974 F.2d 153, 155

(11th Cir. 1992).

A.

Where, as in this case, a plaintiff has no “direct evidence,” circumstantial

evidence of employment discrimination is evaluated under the McDonnell Douglas

framework. Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1103–04 (11th Cir.

2001). Under it, the plaintiff must first establish a prima facie case of

discrimination. “Once the plaintiff has made out a prima facie case of

discrimination, the employer must articulate some legitimate, non-discriminatory

reason for the [employment action].” Id. at 1104. If the employer meets this

burden of production, the presumption of discrimination is eliminated and the

plaintiff must then establish that each of the defendant’s proffered reasons is

pretextual. Id. 

In order to show pretext, the plaintiff must “demonstrate that the proffered

reason was not the true reason for the employment decision. . . . [The plaintiff]

may succeed in this either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981). “[A] plaintiff
29

withstands summary adjudication by producing sufficient evidence to allow a

reasonable finder of fact to conclude that the defendant’s articulated reasons for its

decision are not believable.” Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir.

1994) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742

(1993)). In evaluating a summary judgment motion, “[t]he district court must

evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th

Cir. 1997) (internal quotations and citations omitted).

B.

Here, neither party disputes that Jackson made out a prima facie case of

racial discrimination under McDonnell Douglas. That takes us to the proffered

reasons and whether the evidence creates a genuine issue of material fact as to

pretext.

In their testimony the three Board members who voted in favor of Jackson’s

termination articulated several reasons for Jackson’s termination. They cited as

reasons Jackson’s letter-writing campaign, his alleged filing of false expense

reports, his wrongful distribution of confidential student records, his poor job
30

performance, and, according to Board member Ed McLain, his “blatant

insubordination.” One reason that all three of them gave was Jackson’s abusive

letter-writing campaign. 

We have no doubt that the inflammatory and disparaging letters that Jackson

sent to various members of the Board were a legitimate basis for his termination. 

See Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989)

(“[T]o qualify for the protection of the [anti-discrimination] statute, the manner in

which an employee expresses her opposition to an allegedly discriminatory

employment practice must be reasonable. . . . FDLE denied Rollins’ applications

for promotions because she had earned the reputation as a disruptive complainer

who antagonized her supervisors and colleagues and impaired the morale of her

unit. Such conduct, even when associated with complaints of discrimination, has

been held to fall outside the protection of [42 U.S.C. § 2000e-3(a)] and to provide

the employer with a legitimate basis for its action.” (citing Whatley v. Metro.

Atlanta Rapid Transit Auth., 632 F.2d 1325, 1329 (5th Cir. 1980); Hochstadt v.

Worcester Found. for Experimental Biology, 545 F.2d 222, 234 (1st Cir. 1976))). 

Even Joe Duncan, the one Board member who voted against Jackson’s termination,

felt that Jackson’s demeaning and offensive letter-writing campaign was a

legitimate reason for his termination. He testified: “As I reflect back on
31

[Jackson’s termination] hearing, I would agree that on the other good and just

cause, due to the letters, we may have [had] probable cause to cancel Mr. Jackson’s

contract.” The right to disagree does not include within it the right to keep one’s

job after expressing that disagreement with abusive, racist, demeaning invective

publicly hurled at those with whom one serves.

Because the Board articulated legitimate nondiscriminatory reasons for

Jackson’s termination (specifically the letters), the burden was on Jackson to put

forth sufficient evidence to raise a genuine issue of material fact with regard to

whether the Board’s proffered reasons for his termination were pretextual. See

Bass, 256 F.3d at 1104. Jackson has failed to meet this burden. 

Jackson has made no attempt to argue that his letter-writing campaign was

conjured up by the Board in order to fire him. Nor would he be able to if he tried.

The letters are in the record and they shout for themselves. Without addressing the

content of those letters, Jackson endeavors to convince us that there is evidence

that some of the Board members, in particular McLain, were racist, and that racism

was the real reason the Board fired him.

In support of his assertion that some of the Board members were racist,

Jackson primarily relies on the testimony of Board member Duncan. Some of

Duncan’s testimony arguably indicates that he believed that McLain is a racist. 
32

Assuming that Duncan’s opinion is admissible evidence, or even assuming that

McLain is a racist, that would not create a genuine issue of material fact that the

Board fired Jackson because of racism. Regardless of his opinion about some of

his fellow Board members, Duncan also testified that in his opinion “due to the

letters” the Board “may have [had] probable cause to cancel Mr. Jackson’s

contract.” Duncan recognized that the Board had legitimate reasons for Jackson’s

termination, but he felt that it was unfair to terminate him now, when Jackson’s

letter writing had been going on for several years. Any “unfairness” in not

permitting an employee to continue to engage in misconduct does not state a claim

under federal law. 

Duncan never said that Jackson had been fired because of his race. When

asked in his deposition whether McLain wanted to terminate Jackson because he

was black, Duncan said: “I couldn’t say one way or the other.” When asked

whether McLain had any racial animus towards Jackson, he answered: “May have. 

I really don’t know.” The evidence at trial and the deposition testimony of

Duncan, the only Board member who voted against Jackson’s termination, severely

undercuts Jackson’s contention that the Board fired him not because of his abusive

and disrespectful letter-writing campaign but because the Board members are

racists.
33

Jackson also points to a statement in a letter that was written by someone

outside the Board to then-Superintendent Dr. Connell. The letter discusses how the

school should deal with the problems caused by Jackson’s distributing confidential

documents at a Board meeting the day before. Part of the letter to Dr. Connell says

that Ralph Gaines, the Board’s attorney, had stated that “this might be what we

have been waiting on to move toward taking action on Mr. Jackson.” Jackson

argues that the hearsay in this letter is evidence that the Board was developing a

pretext so it could terminate him on account of his race. This argument is not

tenable.

The letter, with its “what we have been waiting on” language, does suggest

that at least Dr. Connell was contemplating taking some kind of action against

Jackson. (Dr. Connell was not on the Board but her recommendation to commence

termination proceedings was a prerequisite to the Board firing Jackson. Even if we

assume that her desire to take action against Jackson can be attributed to the Board,

that does not mean that the desire was born of racism. As our previous discussion

makes clear, the Board had abundant, non-racial reasons to get rid of Jackson. 

Jackson tells us that the Board’s racial motivation must be “infer[red] from the

evidence as a whole.” Appellant’s Br. 56. We have studied the evidence as a

whole and it will not support any reasonable inference of racist motivation.
34

C.

Jackson’s burden at the summary judgment stage came down to showing

that there was a genuine issue of material fact as to whether the reasons the Board

gave for his termination were pretextual. He could have done this by pointing to

evidence that created a genuine issue that the reasons that the Board gave were

false or that a discriminatory reason was more likely the cause of his termination. 

See Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. He failed to do so. As a result,

the Board was entitled to summary judgment and Jackson is not entitled to have

that judgment reversed.

VIII.

The judgment of the district court is AFFIRMED.