John D. OLITSKY, Plaintiff-Appellee, Cross-Appellant, v. SPENCER GIFTS, INC., Defendants-Appellant, Cross-Appellee

Employment Opportunity Commission BROWN, WIENER, Before KING and (EEOC) alleging fired him be- Judges. Circuit age. cause of his After the EEOC conduct- WIENER, Judge: Circuit investigation, ed an but before it made a Gifts, (Spencer) appeals Inc. Olitsky’s charge determination of on the judgment against firing D. it John Olit- merits, Olitsky brought suit federal dis- sky Age in violation of the Discrimination court, alleging trict violations of the ADEA (ADEA)1 in Employment Act and the Em- trial, jury and ERISA. After a the district ployee Security Retirement Income Act judgment court entered in favor of (ERISA).2 Olitsky cross-appeals, arguing I,3 both claims. reversed erroneously district court refused remanded, holding the district jury’s pay double award front as erroneously had into court admitted evi- liquidated damages under the ADEA. Olitsky’s charge. dence the EEOC’s file on Finding arguments no merit to the of ei- party, ther we affirm. remand, jury On returned a verdict Olitsky, finding Spencer willfully

I. against Olitsky on discriminated the basis FACTS $500,- age, awarding backpay him $100,000. pension 1983,. and lost benefits December fired position manager. accepted jury’s from his as merchandise The district court find- Inc., 3. Olitsky Spencer Gifts, §§ 29 U.S.C. 621-634. Cir.), denied, cert. 109 S.Ct. (1988). U.S.C. 1001-1461. §§ 102 L.Ed.2d 326 prejudice back- udicial and that willfulness, jury’s ing of doubled instruction. could cured not be awards pension lost benefits pay and $400,000 as damages, liquidated awarded con- a bench The district court conducted $123,000 dam- pension had allowed lost ference and noted that front prior trial Spenc- Olitsky to refer to the Olitsky’s ERISA claim.4 ages under objection, and opening statement without appeals. er not raise the issue did limine, though even that motion motion in II. address several issues that did considered “a lot less harmful than ANALYSIS prior There was [reference trial].” challenges aspects of the several a whether also discussion about It appeal. in this proceedings district contending Olitsky did not miti- that erroneously district court argues that the diligently searching gate damages by testimo- (1) certain documents and admitted employment of- for and whether evidence, (2) jury give refused to ny into testimony the first trial to fered the about disputed prima instructions ele- facie The district court that contention. rebut (3) claim, Olitsky’s ADEA and ments of it earlier in stated that had asked that violated ERISA determined making it was such a the trial whether Olitsky argues on Olitsky. it fired when contention, that “danced but in court erred cross-appeal that the district question” specifi- and did not around failing his front after to double award cally it deny that was. willfully Spencer acted jury found that The court concluded the bench district violating ADEA. in by denying Spencer’s motion conference mistrial, stating again that it did not for A. evidence. Admission of Spencer did not raise the why understand of evidence is with admission The district in its motion limine. issue in in the discretion of the district court. sound jury gave and the follow- court recalled the a court’s evidentia We will reverse ing instruction: rulings only upon finding abuse.5 ry of pre- testimony about a have heard [Y]ou The fact that trial of this case. vious prior 1. Result trial. the second trial is irrelevant this is of trial, Spencer immediately moved A. During Olitsky’s Q. being terminated getting since the first trial cult because the aware encountered amount he What [Sjince ^[*] testified I high level kinds % the first trial won that case money. ^[*] direct entire follows: at have problems employment since of this case? ^[*] examination at gift kept you from it’s for a industry more # have Gifts and mistrial, large diffi- you ^[*] jury before The district court further your consideration verdict law as trial or upon the facts as ous trial You have heard evidence introduced at this should admitted as evidence mony from at the end of the case. I not consider the fact in this case its shall it outcome this case. retired to deliberate: give that there was you trial which must of this case. You you find them from in this Except any be based during the trial instructed trial with the of a way. trial, you has for testi- previous á solely previ- Your been everything disregard statement about the about arguing should reaching your extremely prej- trial in verdict the first earlier result of trial willfulness) pre- damages so as to light of its uidated 4. The district court stated that $123,000 pension recovery. under award as lost benefits double vent a $100,000 jury’s as lost ERISA and the pension award of ADEA,Olitsky would benefits under Co., Chems., Freeport Inc. Chem. 5. Jon-T $123,000 for lost be entitled to recover pension (5th Cir.1983). $100,000 (in liq- benefits addition you Liberto, Common sense will tell this case. witness Sam plaintiff who adjudication previous against tri- that the from the suit earlier same defen otherwise, flawed; (Chrysler), allegations dant al must have been which the were identical to those in In spent would not have all of time Coleman. suit, previous had found that required by effort this trial determine Chrysler conspired monopolizetrade, but rights parties. liabilities damages, that Liberto had no sustained so you If of the previ- should allow fact judgment was entered Chrysler. you, ous trial or outcome to influence Coleman, Chrysler cross-examined Liberto improper, that would be all against about his suit Chrysler and spent time and effort on this trial will brought out the fact that Liberto had re have been wasted. money covered no from that suit. On redi arguing the evidence the result rect, Coleman asked Liberto whether the prejudicial so the first trial was jury in his suit had found Chrysler had adequate curative instruction was not conspired monopolize trade, and he an harm, Spencer eliminate the relies on Unit Chrysler swered in the object affirmative. case, ed v. Williams.6 In that States ed, but the district court allowed the testi criminal his defendant and three co-defen mony. The district court instructed the trial, in jury dants were convicted a the but jury they that could consider the verdict in granted their district court motion for new previous assessing the trial in the credibili day trial, trial. On the third of the second ty of in determining Liberto and whether government the informed the district court Chrysler had and intent. notice The Third a local television news broadcast on Chrysler’s Circuit held that reference to previous night report the had included a previous permissible the verdict was a at report about the trial. The stated tempt bias, to show Liberto’s but that Cole previously con four defendants had been man on redirect did not limit questions victed, a trial grant but that new had been previous about the to an verdict effort to polled ed. The district the jury, court and implication Thus, rebut the of bias.10 held jurors they two admitted that had seen the of appeals, the court Coleman’s references jurors report report. Both stated that the prior prejudicial verdict were and would not their influence decision in the trial warranted new because ad “[t]he mistrial, case. The defendant moved for a prior possi mission aof verdict creates the but the district court denied motion. bility will jury defer to the earlier jury The district court instructed the will, effectively, result and thus decide disregard everything not heard in court. on not case evidence before it.”11 trial, proceeded The court with the and case, In the instant the disclosure of again defendants were convicted. first prejudice the result trial did not appeal, we On held that because Spencer Spencer extent would have report’s news mention of the result partly us believe. was at least probative highly trial guilt first was and disclosure, as blame for the prejudicial, exposure of jurors the two recognized. court “danced in an that information resulted unfair question around” the district court’s wheth preju- second trial.7 We concluded that the contending it er was failed to dice was not corrected the district mitigate damages, failed instruction, court’s we reversed issue, raise the which it now remanded for a trial.8 new prejudicial, in incurably its motion in li mine. on also relies Coleman Motor addition, In Chrysler Corp.9 given Co. that Third Cir In the curative instruction case, (Coleman) plaintiff negated any prejudice as a cuit called the district court (5th Cir.1978). 10. 6. F.2d 464 Id. at 1350-51.

7. Id. at 470-71. 11. Id. 1351. at at Id. 471. (3d Cir.1975). F.2d 1338 disputes.” We held that distinguishes conciliation of may have occurred and entire EEOC file con- the admission of the and Cole- from

the instant case Williams error.14 stituted reversible gave Williams, the trial man. disregard only “the usual instruction to gave Spencer notice of Johnson specific not No everything heard court. 22,1984. Man- by letter dated March claim jurors given the two instruction was position letter dated gel responded with a trial, prior disregard report (the news “Mangel April 1984 to Johnson they prior instructed that nor were letter”). letter denied that That guilt.” instructions were evidence Olitsky and stat- against had discriminated evidentiary rulings in Additionally, such fired sales ed because his trials, constitutional Mangel with their letter also inadequate. criminal were analogous in overtones, weakly stated, part, are at best that “Ms. Jeri Hurvitz re- Man- placed Merchandising Mr. civil cases. ager____ Her birthdate October Coleman, trial court instructed Mangel referenced the let- 1956.” the result of it could consider jury copy of it to its answers ter and attached for a limited trial prior as evidence during Olitsky’s interrogatories pretrial case, however, the purpose. In the instant discovery. clearly jury, on instructed the district court remand, Olitsky At the second trial occasions, irrel- that the first trial was two Spencer’s discovery responses, introduced not to consider evant and that the including Mangel letter. also trial or result of the first the occurrence summary chart that included introduced that those any purpose. We conclude excerpts from the Man- to and references any sufficient to cure instructions were gel The district court admitted letter. from the may have resulted harm that Spencer’s objection. over those exhibits first trial and its results. mention of the admission of the that the the Spencer’s position letter to 2. letter, Mangel part was of Johnson’s which EEOC. as held inadmissible a EEOC file that we I, Olitsky violates both section whole I, court admitted Olitsky Rights 706(b) Act of Title VII of the Civil dispute the entire file on this into evidence Olitsky holding the of I. of 196415 and Johnson, by investiga- an prepared Janice part: 706(b) provides That file included John- tor for the EEOC. Section reported Ron- handwritten notes that son’s such the determines after If Commission as Mangel, general Spencer, ald counsel investigation that there is reasonable pro- if McNally true, rebut was saying charge he “can’t believe that the cause to McNally younger employee elimi- moted.” was shall endeavor to the Commission employ- Spencer promoted Olitsky any alleged when was unlawful whom nate such methods of Olitsky Mangel’s practice by ment informal used statement fired. conference, conciliation, persuasion. and argue had admit- during or done and allegation Nothing said not ted that it could rebut may endeavors part such Man- age stated that discrimination. We informal Commission, public by be made liability gel’s was supposed admission or as evi- employees, used among parties exchange “the kind of officers subsequent proceeding with- in a dence informal conciliation and the EEOC persons out the written consent encourage” allowing the ought to and that added). (emphasis concerned litigation in later use of such admissions penalty the candor and I the admission Olitsky “would attach a we stated that Congress obviously be- of entire file violated section forthrightness that EEOC 706(b), sec- but we did not decide whether necessary to successful lieved were Williams, 14. Id. F.2d at 466. 2000e-5(b). I, 15. 42 U.S.C. § F.2d at 127. 706(b) applied tion to an ADEA case.16 about those rumors and Spenc- introduced here, question decide Neither do response interrogatory. Brog we er’s Mangel did we hold that letter not testified that he did not investigate those that, constitute conciliation evidence which rumors. maintained as Roth 706(b) apply. section would younger Olitsky, than that evidence showed that younger treated em- Mangel purely letter set forth ployees favorably more than employ- older Spencer’s factual information and related and Spencer’s ees asserted reason for position on the merits of claim. firing Olitsky pretext age dis- The letter contained no reference to concili crimination. ation between and the efforts any EEOC. neither made offers Spencer argues that the district court any responded of settlement nor such in admitting (1) erred that evidence because Mangel offers the EEOC the letter. Olitsky did not establish a connection be- Phillips Co.,17 In Branch v. Petroleum to investigate tween failure the rumors distinguished “purely factual ma between Spencer’s firing Olitsky; (2) and charge” terial related to merits of [the] prove actually did that Roth used “proposals counter-proposals and and of drugs; (3) Olitsky did not show connec- parties during compromise made Brog’s approval tion between of Roth’s de- and efforts conciliate” held [EEOC’s] cision to Brog fire and the fact that 706(b), that under section disclosure of the use; drug heard rumors of Roth’s (4) allowable, former was but disclosure of the 403, any under probative value Fed.R.Evid. latter that distinc was not.18 We adhere to substantially evidence out- Mangel tion and that the letter does hold weighed by danger of prejudice, confu- not constitute conciliation material that sec issues, jury. misleading sion 706(b), apply, tion it to render were would are convinced the evidence of inadmissible. drug unfairly Roth’s rumored use was not prejudicial Spencer, that the we hold argues that under the law of the doctrine, court did not abuse its holding Olitsky pro- case our I discretion admitting it. admitting hibited the district court from Mangel Spencer interprets the letter. that 4. Olitsky’s open surgery. heart holding broadly. Olitsky I too we held that the inadmissi- entire EEOC was Olitsky that he underwent testified file ble, not hold that individual but we did each surgery February in while open heart item file within that would be inadmissible job. searching for another presented in Here and of itself. we are admitting court in that the district erred with one document from that file. irrelevant, testimony it was that because Finding Mangel did that the letter not con- any probative testimony value of material, stitute conciliation hold that we outweighed by the dan substantially was did not its discre- court abuse Spencer. Olitsky as ger prejudice of to admitting single in tion letter into evi- that, testimony being serts like his about dence. following in “blacklisted” his success case, original of trial of this the evidence drug Hank Roth’s use. Rumors of Spenc surgery offered to heart was rebut Olitsky to miti contention that failed response er’s pretrial

In its to a inter above, damages. his As we noted Olitsky, gate rogatory Spencer stated that from clearly express not dis Gifts, did Brog, President of Gene making or not it Roth, trict court whether that Hank Olit had heard rumors Thus, trial, a contention. the district court sky’s had At such supervisor, drugs. used admitting ap who did not abuse its discretion Brog, cross-examined Olitsky’s testimony. proved Olitsky, decision to fire Roth’s I, 18. Id. at 881. F.2d at 126. 1981). 17. 638 F.2d 873 Cir. Unit A stead, jury should the court instruct Jury

B. instructions. question the ultimate consider that two elements Spencer contends plaintiff defendant terminated whether ADEA case19 prima Olitsky’s facie age. of his To extent our because district dispute were imply or after Aikens decisions before refusing jury questions to submit erred prima facie case the issue Spencer asserts those two elements. resolve, question jury factual sub court should have district implications dictum.21 reject we such (1) questions on whether Olit jury mitted court did not err its instruc- he held position for the sky qualified jury. tions to the (2) Olitsky was Spencer and whether with protected outside the replaced by someone C. ERISA claim. ques refusing to submit those By class. employer prohibits ERISA Section 510 of tions, Spencer the district court argues, against employee partici- action an who jury. province of the usurped the pension plan pates in a benefit for “the argument in rejected that Walther interfering purpose of with attainment Walther, stat- Star Co.20 Lone Gas any right participant may such which ed: plan.”22 To entitled under the re- become 510, plaintiff “need cover under section produced has evi- the defendant

When reason not show ‘the sole nondiscriminatory reason [or dence of a pen- termination was interfere with has discharge, plaintiff plaintiff’s her] however, plaintiff rights’; sion must challenge rea- opportunity an had employer ‘specific had show that the the trier of fact should pretextual, son ”23 Olitsky intent to violate ERISA.’ con- directly issue of proceed ultimate tended that violated section intentionally dis- whether defendant firing him within a few months before Olit- against plaintiff. The ini- criminated ten-year sky vesting met the would have prima longer is no rele- tial facie case Spencer’s requirement under for benefits vant. thereby causing pension plan, him logic of Postal Under the Service [U.S. plan. any benefits under receive Aikens Bd. Governors v.] [460 403], it is 75 L.Ed.2d Brog 108 S.Ct. that when Gene testified plaintiff of whether a Brog mistakenly clear that the issue rehired place has prima believed, Olitsky, facie case no made out and told because of Instructing jury on Olitsky’s in the room. break in service with be- case, pre not enti- prima the elements of a facie tween 1979 and years prior sumptions, shifting burden of to credit for his service and the tled 1979, In- he would have to start a proof unnecessary confusing. so that Green, rebutting pre Douglas the Corp. v. 411 If defendant succeeds in McDonnell the 19. In 802, 1824, 792, 1817, sumption, plaintiff prove 93 S.Ct. 36 L.Ed.2d the must that the de 668, (1973), Supreme pretexts Court formulated the are mere fendant's articulated reasons evidentiary procedure race plaintiff an discrimina can do this for discrimination. adapted ADEA which has been discriminatory tion cases by showing a reason either First, prove prima plaintiff the a cases. must likely by or more the defendant motivated discrimination, age which consists case of showing that defendant’s reason is unwor the facie (1) plaintiff: was dis of evidence (citing thy Dept. credence. Id. Texas Com of of (3) charged; (2) position; qualified was for the 248, Burdine, munity v. 450 U.S. Affairs protected of at the time was within class (1981)). S.Ct. 67 L.Ed.2d 207 (4) discharge; replaced by was someone outside class; (5) by protected younger; someone Cir.1992). or (5th 20. 952 F.2d 119 (6) discharge that his was or show otherwise age. omitted). Air (citations Bienkowski v. American because of 21. Id. at 126-27 lines, (5th Inc., Cir. 851 F.2d 1504-05 case, 1988). plaintiff proves prima a § If U.S.C. facie presumption of which discrimination arises . Co., Unidynamics articulating Div. “le 23. Clark rebut the defendant must gitimate, of Resistoflex Cir.1988) (quoting nondiscriminatory Corp., dis 854 F.2d reason for its Co., plaintiff.” parate v. Continental Can treatment of the Id. at 1505. Gavalik vesting period. ten-year Brog owing new further person Amounts to a as a result of Olitsky testified did not learn that he of Chapter violation this shall be prior years had received for his of credit unpaid to be wages deemed minimum or Olitsky service until after was fired. Hank unpaid compensation overtime pur- Roth also that he did testified not know the poses of Sections 216 and 217 of this Olitsky’s vesting status of made when he Title; Provided, liquidated That damages Olitsky. Spencer decision to fire ar- payable shall be of cases willful gues is thus that there no evidence that of Chapter. any violations this action anyone involved in decision to fire Olit- brought Chapter, enforce this sky Olitsky vesting knew close to court jurisdiction grant shall have when he was fired. legal equitable such or may relief as be The district did not Olit- court submit appropriate purposes to effectuate the of sky’s Rather, jury. ERISA claim to the Chapter, this including without limitation court acted fact-finder on that judgments compelling employment, rein- claim and found had violated statement, promotion, or enforcing or section 510. The district court stated: liability for unpaid amounts to be deemed I I jury, instructed the feel free to [A]s wages unpaid minimum com- overtime witness, testimony of any disbelieve the pensation under this section. unimpeached. even if it is I find did not that a pay front award con- witness, Brog Mr. credible at be owing” stitutes an “amount pro- under that pensions, least on and I this issue about vision, requiring doubling of such an persuaded by am all the circumstantial liquidated damages upon award as a find- provided by plaintiff evidence ing of a willful violation of the ADEA. We specific timing there was intent in previously ques- have not addressed deprive discharge his him of vest- tion, rejected six other but circuits have ing pension plan. in the Olitsky’s argument.26 Olitsky per- has not accept findings a trial court’s suaded that those us circuits have inter- of fact are they clearly unless erroneous or preted incorrectly. that statute The dis- influenced an incorrect view of the trict thus did refusing court not err in shortly law.24 was fired before double front award. vesting pension of his benefits. Spencer contends that fired because III. poor performance work and that vest ing of benefits did not enter into deci its CONCLUSION sion to fire The district chose him. The district court did not its discre- abuse give not to testimony credence evidentiary rulings, partly tion in be- individuals made the fire who decision to Spencer’s attempts cause of to conceal its Olitsky, reasonably inferred from the strategy. The trial district court was cor- proximity firing date the date to the refusing questions give jury rect in vesting deprive intended to ease, Olitsky’s prima elements finding of his That benefits. facie questions as those elements are not factual clearly erroneous. for the to decide. has failed D. Doubling pay award. front us that the district court’s find- convince ing that violated section 510 of liquidated damages The ADEA states, addition, in provision25 part: clearly ERISA was erroneous. (3d Cir.), denied, 979, well, figure 851 S.Ct. as cert. 484 U.S. 108 be recoverable but it cannot 495, (1987)) (emphasis origi L.Ed.2d damages.’’); 492 liquidated the calculation of Grae- nal). 1198, Co., Brewing Pabst 870 F.2d v. fenhain Cir.1989) ("Since pay pro- is a front 1311, Hebert, 24. Branch-Hines v. 939 F.2d remedy, pay damages spective an award of front (5th Cir.1991). owing’ purposes of is not an ‘amount for section 626(b). Co., 626(b).”); 29 U.S.C. Cooper Asplundh Expert § v. Tree (10th Cir.1988) (finding 836 F.2d 1556-57 Enters., McKinley 26. See Wheeler v. 626(b), light read in of section that section (6th Cir.1991) (‘"Front may pay’ n. 2 panel’s evidentiary ruling court's or this correctly refused to dou- way any award, ruling an affirmation of such Olitsky’s front ble Gifts’ of this case punitive; Spencer an ow- loss “amount not constitute award does damages court. provi- laid at the feet of either cannot be liquidated ing” under court, most, assiduously foregoing rea- avoids For the This like ADEA. sion of the tarring district court is intended sons, client with the brush the decision of deem un- lawyers whose behavior we for AFFIRMED. professional. REHEARING PETITION FOR ON formally reprimand neither But here we July for nor sanction counsel otherwise however, do, seriously caution Gifts. We transgres- against repeating such counsel PER CURIAM: future. sions in the petition IT ORDERED IS and filed the above entitled rehearing hereby the same is cause and

numbered be

DENIED. to caution counsel

We are constrained henceforth exercise Gifts LINTON, Gregory Donald briefs, mo- their greater self-restraint Plaintiff-Appellant, tions, writings filed petitions, other and encourage court. admire with this & DOCK LAKES DREDGE GREAT advocacy; deplore and discour- vigorous Steamship Mutual Un COMPANY and stridently rhetoric and un- perjorative age (Bermuda) Ltd., derwriting Association fact professional mischaracterizations Defendants-Appellees. law, such mischarac- particularly when No. 90-4908. order, judgment or involves an terization apodictical An exam- opinion of this court. Appeals, Court of United States page on the first the latter is found ple of Fifth Circuit. rehearing: petition for Twice of counsels’ 22, 1992. June dis- opinion’s affirmation panel ruling is evidentiary character- trict court’s In one punishment. instance

ized in another instance punishment, and

word punished, quotation is set off

the word

marks, ostensibly-quoted word yet neither panel’s opinion!

appears anywhere in this slightest implica- is there even the

Neither court’s this in either the district or

tion opinions they were rendered

panel’s professional- The same lack of

punitively. intemper- that is demonstrated

ism rehearing petition of counsels’

ateness original in counsels’ demonstrated to this court.

brief

Moreover, client no let harbor counsels’

misconception either 626(b)); Act, doubling 216(b) provides subject under section Labor Standards Fair Chems., Inc., owing” types 817 F.2d for two of relief —"amounts Cassino v. Reichhold "legal equitable (9th Cir.1987) relief” —and that front (“By express other terms 1348 subject is not included latter and statute, in the damages liquidated are an addi Corp., doubling); F.2d Blum Witco Chem. backpay equal and benefits amount tional (3d Cir.1987); Dominic v. Consol- 382-83 pay.), cert. award” and thus do not include front York, Inc., Edison Co. New idated denied, L.Ed.2d S.Ct. (2d Cir.1987) (front pay is not 1258-59 (1988). award, owing”; equitable it is "amount as an

Case Details

Case Name: John D. OLITSKY, Plaintiff-Appellee, Cross-Appellant, v. SPENCER GIFTS, INC., Defendants-Appellant, Cross-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 28, 1992

Citation: 964 F.2d 1471

Docket Number: 91-1010

Court Abbreviation: 5th Cir.