                                                            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.




                                   21
