PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 97-2223 _______________
D. C. Docket No. 93-30306/LAC
MICHAEL J. OLMSTED,
Plaintiff-Appellant,
versus
TACO BELL CORPORATION,
Defendant-Appellee.
______________________________
Appeal from the United States District Court for the Northern District of Florida ______________________________ (May 28, 1998)
Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit Judges. BIRCH, Circuit Judge:
In this employment discrimination action, a jury found that
defendant-appellee Taco Bell Corporation (“Taco Bell”) retaliated
against plaintiff-appellant Michael J. Olmsted in response to
Olmsted’s complaints of discriminatory practices within Taco Bell
and awarded both compensatory and punitive damages. The district
court found that the jury verdict was not supported by the evidence
adduced at trial and, in granting judgment as a matter of law in favor
of Taco Bell, struck the award of punitive damages, reduced the
award of compensatory damages, and ultimately set aside the jury’s
verdict. Olmsted appeals these orders and asks that we reinstate
both the verdict and damages awards. For the reasons that follow,
we AFFIRM in part and REVERSE in part.
I. FACTUAL BACKGROUND
From October 1990 until July 1993, Michael Olmsted, a white
male, worked for Taco Bell as an assistant restaurant manager at its
2 North Davis Highway restaurant (“the restaurant”) in Pensacola,
Florida. In January of 1993, Olmsted spoke to both Rick Stone, the
manager of the restaurant, and David Higgins, a manager for one of
Taco Bell’s human resources divisions, about what Olmsted
perceived to be racially discriminatory behavior at the restaurant.
Olmsted also faxed a letter to Richard Klein, the manager of Taco
Bell’s Equal Employment Opportunity division, reporting Olmsted’s
impressions of racially motivated conduct at the restaurant.
According to Olmsted’s trial testimony, Klein initially appeared
helpful and interested in Olmsted’s allegations and assured Olmsted
that he would communicate with him in the future. Klein, however,
did not follow up on the initial conversation and, when Olmsted
eventually contacted him, was evasive.
Olmsted testified that following his complaint of race
discrimination, he was treated differently by various Taco Bell
supervisory personnel. In June, 1993, Rick Stone gave Olmsted an
“employee consultation memorandum,” a type of disciplinary action
3 at Taco Bell. The memorandum stated that “it had been alleged”
that Olmsted had violated one of Taco Bell’s cash handling policies;
the memorandum further stated that “[a]t the present time we cannot
confirm whether the above activity is taking place. However, if we
are able to confirm this type of activity, or any other policy violation,
it would result in termination.” R7-104. Stone noted on the
memorandum that Olmsted had been counseled previously with
respect this type of infraction---a fact that Olmsted disputed both at
the time he received the memorandum and at trial. Olmsted also
disputed that he had committed any cash-handling violation and
testified that neither Stone nor any other Taco Bell administrator
ever confirmed the veracity of the allegation contained in the
memorandum. Olmsted testified that, until June, he had neither
received an employee consultation memorandum during his tenure
with Taco Bell nor had he ever seen any other employee threatened
with termination based on an unconfirmed allegation.
4 Shortly after he received the referenced memorandum,
Olmsted was transferred to a different Taco Bell restaurant on Navy
Boulevard that was managed, during the relevant time period, by
Brenda Mepham. On July 1, 1993, Olmsted notified Mepham by
telephone that he would not be able to work that day because his
wife required emergency surgery. According to Olmsted’s
testimony, neither Olmsted nor Mepham was certain as to whether
Olmsted was entitled to a sick day at that point; Mepham informed
Olmsted that “if you don’t have anything, then you can come in and
work it on one of the days off later in the week.” R7-116. Mepham
apparently left for vacation the day after this conversation took
place. Olmsted, in the meantime, ascertained that he had been
entitled to a sick day and, in filling out the payroll report for the
month during Mepham’s absence, reported that he should be
compensated for July 1.1 On July 16, 1993, after Mepham had
1 It is undisputed that Taco Bell’s computerized payroll system did not distinguish between paid days in which an employee worked and paid sick leave. The only way to represent the pay status of an employee who had taken a sick day to which he was entitled, therefore, was to indicate that the day in question was a paid work
5 returned to the restaurant following her vacation, Mepham verbally
informed Olmsted that he was suspended from work for falsifying
time records. During this same exchange, Mepham also provided
Olmsted with three memoranda accusing Olmsted of various
violations of company cash-handling policy that he allegedly had
committed several weeks earlier. Two of the memoranda stated that
Olmsted had been verbally warned that he had violated company
policies on the day the violations occurred---a fact that Olmsted
contends is false. On July 27, 1993, Taco Bell terminated Olmsted
from employment for falsifying time records.
Olmsted filed the instant action pursuant to Title VII of the Civil
Rights Act of 1991, 42 U.S.C. § 2000e-3 (Title VII) and 42 U.S.C. §
1981. The case was tried before a jury. At the close of Olmsted’s
case, Taco Bell moved for judgment as a matter of law on the
grounds that Mepham alone made the decision to terminate Olmsted
and that Olmsted had failed to show that Mepham knew of his
day---rather than a vacation day or an unpaid day---for that employee.
6 complaints of racial discrimination when she fired him. The court
noted that it would take the motion under advisement but did not rule
on the motion during the pendency of the trial. Following the
presentation of Taco Bell’s evidence, the jury found in favor of
Olmsted and awarded $10,000 in back pay, $450,000 in
compensatory damages, and $3 million in punitive damages.
The district court subsequently filed two orders that are relevant
to this appeal. In the first order, the court granted Taco Bell’s
request to reduce the amount of damages awarded to Olmsted. The
basis for the court’s ruling was that Olmsted effectively had
abandoned his § 1981 claim prior to trial and, as a result, was bound
by the statutory damages cap under Title VII. In the second order,
entitled “Order Granting Defendant’s Motion For Judgment As A
Matter of Law Made At Close of Plaintiff’s Case,” R5-162, the court
determined that Mepham had been the sole decisionmaker with
respect to Olmsted’s termination, that Olmsted had failed to prove
that his discharge was retaliatory in nature, and that Olmsted thus
7 had failed to establish a prima facie case of retaliation under Title
VII. Consistent with these findings, the court set aside the verdict
and entered judgment in favor of Taco Bell.
II. DISCUSSION
A. The Jury’s Finding of Liability
We review de novo a district court’s order granting a renewed
judgment as a matter of law under Federal Rule of Civil Procedure
50(b). See Gilchrist Timber Co. v. ITT Rayonier, Inc., 127 F.3d
1390, 1392 (11th Cir. 1997). “In reviewing the sufficiency of the
evidence to support the jury’s verdict, we draw all reasonable
inferences in favor of the nonmovant . . . in order to determine
whether or not reasonable jurors could have concluded as this jury
did based on all the evidence presented.” Morro v. City of
Birmingham, 117 F.3d 508, 513 (11th Cir. 1997) (internal citation and
quotation marks omitted). We previously have noted that, in
conducting our review of a renewed motion for judgment as a matter
8 of law after a jury has rendered its verdict, “[w]e must determine
‘whether the evidence is such that, without weighing the credibility
of the witnesses or otherwise considering the weight of the
evidence, there can be but one conclusion as to the verdict that
reasonable men could have reached.’” Gilchrist, 127 F.3d at 1392
(quoting Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1057 (11th
Cir. 1982)).
To establish a prima facie case of retaliation under Title VII, a
plaintiff must show that (1) he engaged in statutorily protected
expression; (2) he suffered an adverse employment action; and (3)
there is some causal relation between the two events. See Meeks
v. Computer Associates Intern., 15 F.3d 1013, 1021 (11th Cir. 1994).
We previously have noted that the causal link requirement under
Title VII must be construed broadly; “a plaintiff merely has to prove
that the protected activity and the negative employment action are
not completely unrelated.” E.E.O.C. v. Reichold Chem., Inc., 988
F.2d 1564, 1571-72 (11th Cir. 1993). Once the prima facie case is
9 established, the employer must proffer a legitimate, non-retaliatory
reason for the adverse employment action. The plaintiff bears the
ultimate burden of proving by a preponderance of the evidence that
the reason provided by the employer is a pretext for prohibited,
retaliatory conduct. See Meeks, 15 F.3d at 1021.
It is undisputed that Olmsted has met the first two elements of
his prima facie case of retaliatory discrimination, i.e., that he
engaged in statutorily protected conduct (reporting alleged race
discrimination) and suffered an adverse employment action
(termination). The dispute centers solely on whether Olmsted
demonstrated at trial the existence of a causal relationship between
his protected conduct and eventual termination to a degree that
reasonably supports the jury’s determination. As noted, the district
court found that Mepham was the only individual responsible for
Olmsted’s suspension and termination and that Olmsted had failed
to prove at trial that Mepham was aware of Olmsted’s complaint of
race discrimination; thus, according to the court’s findings, Olmsted
10 did not establish the necessary causal link between the protected
conduct and adverse job action and, consequently, failed to set forth
a prima facie case of retaliation.
Having independently reviewed the record in this case,
however, we believe that the jury’s verdict is amply supported by the
testimony adduced at trial. Although we acknowledge that the
district court’s opinion accurately represents evidence that was
presented in support of Taco Bell’s defense, the jury also considered
this evidence but found the testimony offered by Olmsted (notably
absent from the district court’s discussion) to be more credible. It is
critical to reiterate that our task at this point in the proceedings is to
resolve all reasonable inferences in favor of the non-movant; indeed,
the fact that the evidence in this case strongly suggests arguable
interpretations points in favor of sustaining the jury’s verdict. See
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) (“[T]here
must be a substantial conflict in evidence to support a jury
question.”).
11 Maridell Thompson testified that the individuals involved in
making the decision to terminate included herself, Mepham, Higgins,
and Klein. See R8-101. As previously mentioned, it is beyond
dispute that at least Thompson, Higgins, and Klein were aware of
Olmsted’s complaints of racial discrimination at the restaurant.
Thompson further testified that no one person made the decision to
fire Olmsted and that it was a “consensus decision.” Id. Thompson
also stated in her testimony that both she, Higgins, Klein, and Stone
had all participated on some level in preparing the first employee
consultation memorandum that Olmsted received in June, 1993.
See id. at 97. Moreover, Stone testified that he recalled Higgins
stating, at a meeting in May 1993, that Olmsted “wasn’t going to be
with the company much longer in the future.” Id. at 190. Although
these bits of evidence are not necessarily conclusive proof that the
decision to terminate Olmsted was at least influenced by individuals
other than Mepham---individuals who unequivocally had knowledge
of Olmsted previous complaints---conclusive proof of the plaintiff’s
12 theory of the case is not required to support a jury’s determination;
rather, the evidence summarized above compels us to conclude that
a reasonable jury could have concluded, as this jury did, that Taco
Bell’s decision to suspend and terminate Olmsted was causally
related to his complaints of racially motivated conduct. See Quick
v. Peoples Bank of Cullman County, 993 F.2d 793, 797 (11th Cir.
1993) (“When reviewing . . . a challenge [to the sufficiency of the
evidence], the question is whether or not reasonable jurors could
have concluded as this jury did based on the evidence
presented.”) (citation and internal quotation marks omitted)). We
conclude that the district court erred in granting judgment as a
matter of law in favor of Taco Bell and, thereby, in setting aside
the jury’s verdict. We therefore reverse the district court as to the
issue of Taco Bell’s liability.
B. Damages Award
13 Prior to entering its order granting judgment as a matter of
law on the primary liability question, the district court decided that
the damages awarded by the jury must be reduced in conformity
with the damages cap applicable to Title VII actions, as set forth
in 42 U.S.C. § 1981a.2 The court noted that, although Olmsted
initially filed this action under both Title VII, for which potential
damages awards have been limited by statute, and 42 U.S.C. §
1981(a), which has no statutory damages cap, Olmsted effectively
abandoned his § 1981(a) claim in the pre-trial stipulation and in
subsequent proceedings prior to trial.
2 42 U.S.C. § 1981a(3) sets forth specific limitations on the amount of damages available to prevailing plaintiffs under Title VII and provides, in relevant part:
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party –
. . . in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
42 U.S.C. § 1981a(3)(D).
14 We review the trial court’s interpretation of a pretrial order for
abuse of discretion. Thrift v. Hubbard, 44 F.3d 348, 356 (5th Cir.
1995). Federal Rules of Civil Procedure 16(e) dictates that the
pretrial order “shall control the subsequent course of the action
unless modified by a subsequent order.” Here, although we
acknowledge the potential confusion for plaintiffs in differentiating
between the amendment to Title VII that is embodied in 42 U.S.C.
§ 1981a and the cause of action created by 42 U.S.C. § 1981(a),
we cannot conclude in this instance that the district court’s
construction of the pretrial order---that is, that Olmsted
abandoned his § 1981(a) claim by virtue of the pretrial stipulation-
--was unreasonable. As observed by the district court, the pretrial
stipulation does not reference § 1981(a) at any point. Olmsted
contends that the reference in the pretrial statement to the Civil
Rights Act of 1991, see R3-110 at 3, encompasses both Title VII
and § 1981; however, the reference to the Civil Rights Act of 1991
mentions only § 1981a, not § 1981(a). While we are reluctant to
15 engage in an overly technical reading of a pleading when the
dispositive factor is the apparent absence of a set of parentheses,
these parentheses unfortunately control our decision. It is worth
noting that the complaint correctly cites to § 1981 and Title VII; we
therefore can assume that, notwithstanding the understandable
confusion with respect to the closely numbered statutory
provisions at issue here, the drafter of both the complaint and the
pretrial stipulation knew the difference between the two statutory
avenues of relief.
Olmsted argues that, were the abandonment of the § 1981
claim clear and unequivocal, the district court would not have
requested post-trial briefing on the question of damages.
Immediately after the jury rendered its verdict, the following
colloquy took place between defense counsel and the court:
Mr. Lipps: Your Honor, I do have one final motion that I do think is appropriate at this juncture. The statute under Title VII has an amount for compensatory and punitives of a maximum of 300,000, so I ask that – the
16 Court indicated it would enter judgment consistent with the verdict.
The Court: I said in accordance to the law as well, which was meant to encompass that.
Mr. Lipps: So the judgment will be the $300,000 cap? I do believe back pay is separate from that.
The Court: Unless I’m shown otherwise, and you can include any comments you might have in that regard, Mr. Emmanuel, in your brief.
R10-91. Significantly, the requested briefing resulted in a
memorandum from Olmsted detailing the availability of unlimited
damages pursuant to § 1981(a), and a memorandum from Taco
Bell asserting that Olmsted had waived or abandoned the §
1981(a) claim. Regardless of the possible miscommunication that
may have existed between the parties---and quite possibly
between the parties and the court---in this instance, we do not
construe the district court’s request for briefing on the question of
damages to be an indication that the court was tentative about the
17 continued viability of the § 1981(a) claim; the court’s suggestion
that the parties include a discussion of the appropriate measure
of damages, along with the other issues that needed to be
addressed post-trial, appears to indicate a desire to refrain from
issuing an immediate, oral decision on these matters from the
bench.3 Again, although we appreciate the potential for confusion
3 Conversely, the following colloquy is relied upon by both the district court and Taco Bell to demonstrate that Olmsted had waived his § 1981(a) claim:
Mr. Lipps: Your Honor, one further matter on punitive damages. I do want to be sure that we’re all of the same view. Let me suggest my view. This case does arise under Title VII, Civil Rights Act, according to the pretrial statement and, therefore, there would be, I realize it’s not a matter to instruct the jury, but would be a cap of $300,000 under Title VII for compensatory and punitive combined. And that is my understanding of the law under Title VII, so I wanted to advise the Court.
The Court: I think that is a general statement of the law as I understand it. Any comment at this point?
Mr. Emmanuel: Your Honor, I agree with what counsel is indicating. That is something the jury should not be informed of. If the jury comes back with punitives in excess of that, that would be an issue for the Court to take up at that time.
R9-237. We find this exchange to be open to varying interpretations. On the one hand, as Taco Bell avers, plaintiff’s counsel appears to “agree” with the proposition that this case arises under Title VII (And, implicitly, only Title VII) with its concomitant cap on available damages; on the other hand, it is also
18 in pleading causes of action based on both Title VII and § 1981,
we believe that the district court acted within its discretionary
authority in construing the pretrial statement as evincing an
abandonment of the § 1981 claim. Accordingly, the court did not
abuse its discretion in reducing the damages award consistent
with the limitations placed on Title VII damages that is embodied
in 42 U.S.C. § 1981a.4
reasonable to infer, as Olmsted suggests, that plaintiff’s counsel agrees solely with the proposition that the jury should not be informed of the issue of a possible damages cap one way or the other. Contrary to Taco Bell’s suggestion, we decline to interpret this colloquy as further evidence that Olmsted waived his § 1981(a) cause of action. 4 Notably, our prior decisional law leaves unclear whether Olmsted could have prevailed on his § 1981 claim even if we were to find that the claim had not been abandoned in the pretrial statement. Taco Bell points out that our decision in Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997), seems to indicate that the concerns underlying a retaliation action brought pursuant to Title VII and § 1981 might, in some circumstances, be different. We acknowledge that Little can be read to prohibit suits under § 1981 where the retaliation alleged is not based on the race of the complainant; we further note, however, that prior to our discussion of the plaintiff’s § 1981 claim in that case, we discussed at length---in the context of Title VII---our determination that the plaintiff had not shown that he had engaged in statutorily protected conduct that would give rise to a retaliation claim. See id. at 9959-60. Little, therefore, does not stand unambiguously for the proposition argued by defendants, particularly in light of the facts presented in that case, i.e., that there had been no showing of retaliation on the basis of the race of either the plaintiff or of the subject matter about which the plaintiff had complained. Indeed, the scope of relief available under § 1981 with respect to retaliation claims appears to remain largely an open question in this circuit. See, e.g., Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 (11 th Cir. 1997)
19 III. CONCLUSION
In this employment discrimination action, Olmsted asks that
we reverse the district court’s orders granting judgment as a
matter of law in favor of Taco Bell, thereby setting aside a jury’s
finding of liability in favor of Olmsted, and reducing the damages
award in conformity with the limitations on damages available
under Title VII. We conclude that the district court erred in
granting judgment as a matter of law with respect to the issue of
Taco Bell’s liability. We therefore reinstate the jury’s verdict
finding in favor of Olmsted on the question of retaliatory
discharge. We further find, however, that Olmsted waived his
claim initially brought pursuant to 42 U.S.C. § 1981. Accordingly,
(where white employees allegedly were retaliated against for complaining of discrimination against black employees, white plaintiffs had standing to proceed under § 1981); Reynolds v. CSX Transportation, Inc., 115 F.3d 860, 868 n.10 (11th Cir. 1997)(“In its entry of judgment, the district court noted that the damages awarded for retaliation could be based on either Title VII or § 1981. This court has not yet addressed the types of retaliation claims cognizable under § 1981 in light of the Civil Rights Act of 1991.”). In light of our conclusion with respect to Olmsted’s abandonment of his § 1981 claim in this case, we need not resolve the precise contours of § 1981, as amended by the 1991 Act, with respect to retaliation claims.
20 the district court properly reduced the award of damages
consistent with the damages cap set forth in 42 U.S.C. § 1981a,
as applied to Title VII actions.
AFFIRMED in part, REVERSED in part, and REMANDED for
reinstatement of the jury’s verdict. Olmsted’s motion for attorney’s
fees is remanded to the district court for a determination
consistent with this opinion.