Barry T. SULLIVAN, Plaintiff-Appellee,

                                                      v.

NATIONAL RAILROAD PASSENGER CORPORATION, a foreign corporation, Defendant-Appellant.

                                                No. 98-4080.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                              March 25, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-0037-CIV-DLG),
Donald L. Graham, Judge.

Before COX and BARKETT, Circuit Judges, and FAY, Senior Circuit Judge.

        BARKETT, Circuit Judge:

        National Railroad Passenger Corporation ("Amtrak") appeals a final judgment following a jury

verdict in favor of Barry T. Sullivan on his claim of unlawful retaliation under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), the Civil Rights Act of 1991, 42 U.S.C. § 1981(a) and

the Florida Whistleblower's Protection Act, Fla. Stat. Ann. § 448.102(3) (West 1998). Amtrak argues that

the district court should have granted its motion for judgment as a matter of law or, in the alternative, for a

new trial. We reverse.

Background

        In 1995, Barry Sullivan sued Amtrak, claiming that he was the victim of sexual harassment and

retaliation stemming from an incident in December 1993 when Sullivan's immediate supervisor, Kevin Scott,

allegedly sexually propositioned him in a hotel parking garage. Sullivan claims that the incident occurred

while the two were traveling on business and staying at a hotel in Tampa, Florida. According to Sullivan,

when Sullivan accompanied Scott to the hotel parking garage to retrieve Scott's briefcase from the car, Scott

suggested that Sullivan accompany him to Scott's room for a short while, and that Sullivan would not regret

it. Sullivan claimed he slammed Scott to the trunk of the car, causing Scott to lose his glasses. As Scott

retrieved his glasses from the ground, he apologized profusely to Sullivan, asking him to forget about the
incident and assuring him that it would not happen again. According to Sullivan, Scott further assured him

that he would have nothing to worry about for as long as the two continued to work together. Sullivan did

not report this incident to anyone at Amtrak until February 1994, after he had been demoted from his job as

manager.

        Sullivan's demotion occurred on January 26, 1994, when Scott hand-delivered a letter to Sullivan

informing him that his management job as District Manager of the Miami Station had been eliminated as part

of Amtrak's nationwide reorganization. This led to Sullivan's taking the non-managerial position of Yard

Chief of the Miami Station. On February 11, 1994, Amtrak began an investigation into the whereabouts of

fifteen missing Publix gift certificates as well as a cellular phone that had been in Sullivan's care. Shortly

thereafter, Sullivan returned eight of the gift certificates and the phone. He could not account for the missing

eight certificates, which were cashed at a grocery store near his home. He also admitted to making, along

with his wife, over one thousand dollars worth of unauthorized calls on the company phone. Amtrak took

no formal action against Sullivan regarding either the phone or the gift certificates.

        On approximately February 15, 1994, Sullivan's attorney lodged a complaint with Amtrak on

Sullivan's behalf, claiming that the incident with Scott in December 1993 constituted sexual harassment.

Amtrak officials investigated the complaint and concluded that the incident had not in fact occurred. In June

1994, Sullivan's work schedule was changed from four to five days a week. Amtrak claims that this change

was necessary to satisfy a Food and Drug Administration (FDA) regulation that all inbound trains be

inspected and cleaned upon arrival. In July 1994, Amtrak eliminated all Yard Chief positions nationwide.

Sullivan then took the lesser position of Chief of On Board Service.             Throughout 1995, Sullivan

unsuccessfully applied for a number of different management positions including: Director of OBS Station

Support (January 1995); Product Line Director (March 1995); Manager of Terminal Services, Miami (March

1995); Manager of Terminal Services, New Orleans (May 1995); Conventional Services Manager, Northeast

Corridor (April 1995).



                                                       2
        Sullivan filed suit against Amtrak in February 1995, claiming that the incident with Scott in

December 1994 constituted sexual harassment. Sullivan amended his complaint in June 1995 to include

charges that Amtrak had retaliated against him by: 1) investigating his involvement with the misuse of a

company cellular telephone and the theft of fifteen Publix gift certificates; 2) changing the job description

of Sullivan's job as Yard Chief and then eventually eliminating the position, and; 3) after eliminating the

position, failing to hire him for any of the other management positions for which he applied.

        The jury found against Sullivan on his claims of sexual harassment and Sullivan has not appealed

from the judgment on that claim. However, the jury found for Sullivan on his claims of retaliation, awarding

him $50,000 in compensatory damages. Following the trial, the magistrate judge held an evidentiary hearing

and awarded Sullivan equitable damages in the amount of $98,783 in backpay, with pre-judgment and

post-judgment interest calculated at 6.5%, and front pay in the amount of $458,166.

        On appeal, Amtrak argues that the district court erred by not granting Amtrak judgment as a matter

of law or, alternatively, a new trial because: 1) the jury found against Sullivan on his sexual harassment claim

and therefore could not reasonably find for Sullivan on his retaliation claim; and 2) there was no evidence

of retaliation. Amtrak additionally claims that the damage amounts awarded by both the jury and the

magistrate judge were not supported by the evidence.

Discussion

         We first address Amtrak's claim that, as a matter of law, the jury could not find against Sullivan on

his sexual harassment claim while finding for him on the retaliation claim.1 Amtrak argues that Sullivan's

harassment claim is based on a single incident which Amtrak maintains never occurred. Because the jury

found for Amtrak on the sexual harassment claim, Amtrak asserts, the jury must have accepted Amtrak's

contention that the incident never happened. Consequently, Amtrak argues, Sullivan's claim of retaliation




   1
   We review the district court's denial of Amtrak's motion for judgment as a matter of law de novo. See
Daniel v. City of Tampa, Fla., 

, 549 (11th Cir.1994).

                                                       3
cannot stand because it requires a good faith, objectively reasonable belief that the discrimination occurred.

See Harper v. Blockbuster Entertainment Corp., 

, 1388 (11th Cir.1998).

         We find this argument totally meritless. The fact that the jury concluded that Sullivan's claim did

not meet all the elements for a successful sexual harassment action does not mean that it could not have found

that the incident did take place and that Sullivan could have reasonably believed himself the victim of sexual

harassment. For example, the jury could well have determined that the incident occurred but did not rise to

the level of harassment prohibited by Title VII. Courts may not reach behind jury verdicts to evaluate their

reasoning. See, e.g., U.S. v. Russo, 

, 1450 (11th Cir.1986) (court will not look behind verdict

for evidence of jury confusion); Delpit v. Nocuba Shipping Co., 

, 838 (5th Cir.1962) ("We may

not second-guess jurors or substitute our judgment for theirs when theirs is supported by sufficient

evidence."); Vera-Lozano v. International Broadcasting, 

, 71 (1st Cir.1995) (court will not

supplant the jury verdict nor second-guess what may have been their thought process). Moreover, retaliation

is a separate offense under Title VII; an employee need not prove the underlying claim of discrimination for

the retaliation claim to succeed. Meeks v. Computer Associates Int'l, 

, 1021 (11th Cir.1994);

Tipton v. Canadian Imperial Bank of Commerce, 

, 1494 (11th Cir.1989).

         Turning to the question of whether there is sufficient evidence to support Sullivan's claim of

retaliation, however, we find Amtrak's appeal meritorious. To make a prima facie case for retaliation, the

plaintiff must show: 1) a statutorily protected expression; 2) an adverse employment action; 3) a causal link

between the protected expression and the adverse action. See Olmsted v. Taco Bell Corp., 

,

1460 (11th Cir.1998); Raney v. Vinson Guard Service, 

, 1196 (11th Cir.1997).2 Once the

plaintiff makes out a prima facie case, "the burden shifts to the defendant to rebut the presumption of

retaliation by producing legitimate reasons for the adverse employment action." 

   2
    The district court instructed the jury to apply this test for both Sullivan's state and federal retaliation
claims. Neither party has disputed that instruction. Consequently, we follow the same procedure.

                                                       4
(quoting Hairston v. Gainesville Sun Publishing Co. 

, 919 (11th Cir.1993)). If the defendant offers

legitimate reasons, the presumption of retaliation disappears. 

must then show that the

employer's proffered reasons for taking the adverse action were actually a pretext for prohibited retaliatory

conduct. 

.

        There is no dispute that Sullivan's complaint to Amtrak's management that he had been sexually

harassed constituted protected expression nor that Sullivan suffered adverse employment actions. The only

issue to be addressed here is whether a causal link existed between the adverse employment action and the

protected expression.

        While Sullivan initially included in his complaint as adverse employment actions his first demotion

and the investigation into the gift certificates and cellular phone, he concedes that these cannot be considered

retaliatory actions because they predate the protected expression. Thus, the only question before us is

whether a causal link exists between Sullivan's sexual harassment complaint and the change in his work

hours, the subsequent elimination of his job, and Amtrak's failure to rehire him.

         Although Sullivan argues that the change in his work hours as Yard Chief and the subsequent

elimination of the position were retaliatory actions taken directly by Scott, he offers no evidence to refute

Amtrak's contentions that the change in hours was a response to an FDA requirement and that the job's

subsequent elimination (along with all other Yard Chief positions) was part of a nationwide restructuring.

Absent evidence suggesting that Amtrak's reasons for changing the Yard Chief's hours and then eliminating

the position were pretextual, Sullivan's retaliation claim arising from this action must fail.

         Sullivan next claims that Amtrak failed to rehire him to a management position for retaliatory

reasons. He argues that he was more qualified than the successful applicants for all of the management

positions for which he applied, and that in each case he was denied the position by someone who had some

tie to Scott or who knew of his sexual harassment complaint. In each case, however, there is insufficient

evidence to support a conclusion that Sullivan was not hired for retaliatory reasons.



                                                       5
        First, according to Sullivan, he should have received the position of Director of OBS Station Support

because the job's responsibilities were similar to those he had been performing for the past twenty years.

Sullivan claims that Jon Tainow, who did the hiring for the position, told him that as far as he was concerned,

Sullivan had the job but that Ken Bagley, Deputy Chief Executive Officer for the Northeast Corridor and a

friend of Scott's, told Tainow to "take a good look" at another candidate, Mark Rose. Rose eventually got the

position. Tainow, however, testified that he never told Sullivan that Sullivan had the job and that he hired

Mark Rose as Director of Operations because of his administrative background and budget experience.

Tainow further stated that the only role Bagley played in the hiring process was that Tainow and Bagley

reviewed the list of candidates prior to Tainow's informing Bagley that he was going to hire Mark Rose. More

importantly, Tainow testified that he only learned of Sullivan's harassment complaint a week before the trial.

Sullivan presented no evidence to rebut the testimony that the decisionmaker in this case was not aware of

his complaint or to show that the reasons Sullivan was not hired were false.

        Second, Sullivan claims he should have received the Product Line Director position because it also

encompassed duties he had been performing for many years. Moreover, Dennis Hale, the successful

candidate, had a marketing background which Sullivan maintains did not prepare him for the on-board

services component of the job. Sullivan further claims that the decision about whom to interview was made

"in conjunction" with John Stafford, Amtrak's Director of Human Resources, who knew of Sullivan's sexual

harassment complaint. However, Allan Edelston, who did the hiring for the position, testified that he hired

Dennis Hale for the Product Line Director position because of Hale's experience managing the Autotrain,

Amtrak's flagship train. Although Stafford participated in the interview process, the decision was made by

Edelston and Edelston testified that the first time he heard of Sullivan's sexual harassment complaint was in

the Spring of 1996, over a year after he had filled the position. Again, there is no evidence in the record to

rebut the testimony that the decisionmaker did not know of Sullivan's complaint or to show that Amtrak's

reasons for hiring Hale were pretextual.



                                                      6
        Third, Sullivan claims he should have received the Manager of Terminal Services positions, jobs for

which he was not interviewed. Scott Weddle, who was hired for the Miami position, had held a lower

position than Sullivan's prior to the reorganization. The New Orleans position went to James Turngren, who

had also held a position lower than Sullivan. In each case, Sullivan claims Stafford participated in the hiring

process by pointing out what the interviewer should look for when selecting the person for the job. In

response, Dennis Hale testified that he hired Scott Weddle for the Miami Service Manager job because of his

training background in on-board service and because of his philosophy of integrating employees into the

decision-making process, and because Hale considered him the best qualified applicant for the job.3 He

further testified that he only learned of Sullivan's sexual harassment complaint in late 1996. Sullivan

presented no evidence to rebut Hale's asserted ignorance of the complaint or to show that the reasons Hale

proffered for selecting Weddle over Sullivan were false. And, while Charles Bothwell did not testify directly

as to why Turngren got the New Orleans job over Sullivan, he testified in a deposition read at trial that at a

General Managers meeting he attended following the reorganization, several people raised questions as to

Sullivan's integrity and honesty. Those concerns stemmed from their belief that Sullivan gave false reasons

for requesting a transfer to Miami from New York, and from his attempts to get his wife a position in Miami

in violation of the company's nepotism policy. John Stafford also testified that at that meeting Scott

recommended Sullivan for several open management positions but that questions were raised about Sullivan's

performance ratings and about his integrity stemming from his attempt to get his wife hired in Miami.4




   3
     There is some discrepancy in the record as to who got this position. Hale testified at trial that the
position went to Weddle. However, Stafford, in his deposition, states that the job went to J. MacArthur.
In either case, Sullivan presented no evidence to show that the hiring decision was made for retaliatory
reasons.
   4
    Sullivan testified that he was aware that he had angered a number of people in management following
his move to Miami. Margaret Leitereg, Amtrak's Human Resources Manager for the New York district
until 1995, also testified that Stafford told her in January 1994, a month prior to Sullivan's lodging a
complaint, that Sullivan would not wind up with a management position following the reorganization
because he had alienated too many people in the years previous.

                                                      7
        Finally, Sullivan claims that he, rather than John Coffe, should have gotten the Conventional Service

Manager position. He argues that Coffe, who was not an Amtrak employee, was selected over him despite

Amtrak's policy of hiring and promoting from within, and that Coffe's technical background with commuter

railroads did not match Sullivan's qualifications for a position that dealt with food amenities and sleeper cars.

According to Sullivan, David Nogar told him after their interview that he was at the head of the list of

candidates, but Nogar then checked with some of Sullivan's previous supervisors and removed him from

contention for the job. Sullivan also asserts that Nogar "reported to" Bagley and "knew" Scott. He further

notes that each of the other district managers who lost their positions during the reorganization were

subsequently rehired in management positions. In response, David Nogar testified that he chose Coffe, a man

with whom he had worked previously, because of Coffe's customer service sensitivity and mechanical

background. He denied checking with any of Sullivan's previous superiors or to knowing any more about

his employment history than Sullivan listed on his application. He further stated that he only learned of

Sullivan's sexual harassment complaint a week prior to testifying at the trial. Sullivan again failed to rebut

Nogar's stated ignorance of the harassment complaint.

         When an employer offers legitimate reasons for its actions, as Amtrak did, the presumption of

retaliation disappears. The plaintiff then bears the burden of showing that the employer's reasons for not

promoting him were pretextual. Sullivan has not borne that burden. He failed to introduce any evidence that

would have permitted the jury to legitimately draw the inference that the reasons proffered by Amtrak for

Sullivan not getting these jobs were false and that the real reason was retaliation. We recognize that

circumstantial evidence can suffice to support inferences that retaliation was the reason for the adverse action.

In this case, however, the evidence presented is far too speculative to support the jury's conclusion that

Amtrak retaliated against Sullivan by not promoting him to any of the management jobs for which he applied

following his demotion.




                                                       8
       Accordingly, we REVERSE the judgment of the district court and REMAND the case for entry of

judgment on behalf of Amtrak.5




   5
   Because we reverse on the retaliation claims, we need not address the issue of whether the damage
amount was appropriate.

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