UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                              No. 91-1010


JOHN D. OLITSKY,
                                Plaintiff-Appellee, Cross-Appellant,


                                versus


SPENCER GIFTS, INC.,
                                Defendant-Appellant, Cross-Appellee.



          Appeals from the United States District Court
                For the Northern District of Texas

                    (     June 22, 1992        )
Before BROWN, KING and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Spencer Gifts, Inc. (Spencer) appeals a judgment against it

for firing John D. Olitsky in violation of the Age Discrimination

in Employment Act (ADEA)1 and the Employee Retirement Income

Security Act (ERISA).2   Olitsky cross-appeals, arguing that the

district court erroneously refused to double the jury's award of

front pay as liquidated damages under the ADEA.     Finding no merit

to the arguments of either party, we affirm.

                                  I.



     1
      29 U.S.C. §§ 621-634.
     2
      29 U.S.C. §§ 1001-1461.
                                FACTS

       In December 1983, Spencer fired Olitsky from his position as

merchandise manager.    Olitsky was 53 years old.   Spencer

originally hired Olitsky in 1973, when he was 42 years old, as a

buyer for its retail store division.    Olitsky resigned from

Spencer in 1979 to take a position with another company.      In

1981, Spencer again hired Olitsky, who was then 50 years old, as

a merchandise manager.    Spencer performed well in that position

in 1981 and 1982 and received favorable evaluations.

       In October 1983, Hank Roth, a general merchandise manager

for Spencer, informed Olitsky that his performance had

deteriorated and that the buyers whom he supervised were not

performing adequately.    When Roth dismissed Olitsky in December

1983, he explained to Olitsky that he had not satisfactorily

improved his performance, that Spencer was in the process of

reorganizing its merchandise department, and that as a result of

the reorganization, there would be no room for Olitsky.       When he

was fired, Olitsky was only a few months from meeting the ten-

year vesting period of his benefits under Spencer's pension plan.

       Olitsky filed a charge with the Equal Employment Opportunity

Commission (EEOC) alleging that Spencer fired him because of his

age.    After the EEOC conducted an investigation, but before it

made a determination of Olitsky's charge on the merits, Olitsky

brought suit in federal district court, alleging violations of

the ADEA and ERISA.    After a jury trial, the district court

entered judgment in favor of Olitsky on both claims.     In Olitsky


                                  2
I,3 we reversed and remanded, holding that the district court had

erroneously admitted into evidence the EEOC's file on Olitsky's

charge.

     On remand, the jury returned a verdict for Olitsky, finding

that Spencer willfully discriminated against Olitsky on the basis

of age, and awarding him backpay of $500,000 and lost pension

benefits of $100,000.   The district court accepted the jury's

finding of willfulness, doubled the jury's backpay and lost

pension benefits awards as liquidated damages, awarded $400,000

as front pay and $123,000 as lost pension damages under Olitsky's

ERISA claim.4   Spencer appeals.

                                   II.

                              ANALYSIS

     Spencer challenges several aspects of the district court

proceedings in this appeal.   It argues that the district court

erroneously (1) admitted certain documents and testimony into

evidence, (2) refused to give jury instructions on disputed prima

facie elements of Olitsky's ADEA claim, and (3) determined that

Spencer violated ERISA when it fired Olitsky.   Olitsky argues on

cross-appeal that the district court erred in failing to double


     3
      Olitsky v. Spencer Gifts, Inc., 

(5th Cir.),
cert. denied, 

, 

, 

(1988).
     4
      The district court stated that in light of its $123,000
award as lost pension benefits under ERISA and the jury's award
of $100,000 as lost pension benefits under the ADEA, Olitsky
would be entitled to recover only $123,000 for lost pension
benefits (in addition to $100,000 as liquidated damages for
willfulness) so as to prevent a double recovery.

                                    3
his front pay award after the jury found that Spencer acted

willfully in violating the ADEA.

A.   Admission of evidence.

      The admission of evidence is within the sound discretion of

the district court.   We will reverse a district court's

evidentiary rulings only upon a finding of abuse.5

      1.   Result of the prior trial.

      During Olitsky's direct examination at trial, he testified

as follows:

      Q.   What kinds of problems have you encountered that have
           kept you from getting high level employment since being
           terminated at Spencer Gifts and since the first trial
           of this case?

                          *            *      *

      A.   [S]ince the first trial it's more difficult because the
           entire gift industry is aware I won that case for a
           large amount of money.

Spencer immediately moved for a mistrial, arguing that Olitsky's

statement about the result of the first trial was extremely

prejudicial to Spencer and that the prejudice could not be cured

by a jury instruction.

      The district court conducted a bench conference and noted

that Spencer had allowed Olitsky to refer to the prior trial in

his opening statement without objection, and that Spencer did not

raise the issue in its motion in limine, even though that motion

did address several issues that the district court considered "a

lot less harmful than [reference to the prior trial]."     There was

      5
      Jon-T Chems., Inc. v. Freeport Chem. Co., 

,
1417 (5th Cir. 1983).

                                   4
also a discussion about whether Spencer was contending that

Olitsky did not mitigate his damages by diligently searching for

employment and whether Olitsky offered the testimony about the

first trial to rebut that contention.   The district court stated

that it had asked Spencer earlier in the trial whether it was

making such a contention, but that Spencer "danced around that

question" and did not specifically deny that it was.

     The district court concluded the bench conference by denying

Spencer's motion for mistrial, stating again that it did not

understand why Spencer did not raise the issue in its motion in

limine.   The district court recalled the jury and gave the

following instruction:

     [Y]ou have heard testimony about a previous trial of this
     case. The fact that this is the second trial is irrelevant
     to your consideration of this case. You should not consider
     the fact of a previous trial or its outcome in any way.
     Your verdict in this case must be based solely upon the
     facts as you find them from the evidence introduced at this
     trial with the law as I shall give to you during the trial
     or at the end of the case.

The district court further instructed the jury before it retired

to deliberate:

     You have heard that there was a previous trial of this case.
     Except for testimony from that trial which has been admitted
     as evidence in this trial, you should disregard everything
     about that earlier trial in reaching your verdict in this
     case. Common sense will tell you that the adjudication from
     the earlier trial must have been flawed; otherwise, we would
     not have spent all of the time and effort required by this
     trial to determine the rights and liabilities of the
     parties. If you should allow the fact of the previous trial
     or its outcome to influence you, that would be improper, and
     all of the time and effort spent on this trial will have
     been wasted.

     In arguing that the evidence of the result of the first


                                 5
trial was so prejudicial that the curative instruction was not

adequate to eliminate the harm, Spencer relies on United States

v. Williams.6 In that case, a criminal defendant and his three

co-defendants were convicted in a jury trial, but the district

court granted their motion for new trial.      On the third day of

the second trial, the government informed the district court that

a local television news broadcast on the previous night had

included a report about the trial.      The report stated that the

four defendants had previously been convicted, but that a new

trial had been granted.      The district court polled the jury, and

two jurors admitted that they had seen the report.      Both jurors

stated that the report would not influence their decision in the

case.    The defendant moved for a mistrial, but the district court

denied that motion.      The district court instructed the jury to

disregard everything not heard in court.      The court proceeded

with the trial, and the defendants were again convicted.

     On appeal, we held that because the news report's mention of

the result of the first trial was probative of guilt and highly

prejudicial, the exposure of the two jurors to that information

resulted in an unfair second trial.7     We concluded that the

prejudice was not corrected by the district court's instruction,

and we reversed and remanded for a new trial.8



     6
        

(5th Cir. 1978).
     7
        

     8
        

                                    6
     Spencer also relies on Coleman Motor Co. v. Chrysler Corp..9

In that Third Circuit case, the plaintiff (Coleman) called as a

witness Sam Liberto, who was the plaintiff in a previous suit

against the same defendant (Chrysler), in which the allegations

were identical to those in Coleman.      In the previous suit, the

jury had found that Chrysler conspired to monopolize trade, but

that Liberto had sustained no damages, so judgment was entered

for Chrysler.     In Coleman, Chrysler cross-examined Liberto about

his suit against Chrysler and brought out the fact that Liberto

had recovered no money from that suit.      On redirect, Coleman

asked Liberto whether the jury in his suit had found that

Chrysler had conspired to monopolize trade, and he answered in

the affirmative.     Chrysler objected, but the district court

allowed the testimony.      The district court instructed the jury

that they could consider the verdict in the previous trial in

assessing the credibility of Liberto and in determining whether

Chrysler had notice and intent.      The Third Circuit held that

Chrysler's reference to the previous verdict was a permissible

attempt to show Liberto's bias, but that Coleman on redirect did

not limit its questions about the previous verdict to an effort

to rebut the implication of bias.10     Thus, held the court of

appeals, Coleman's references to the prior verdict were

prejudicial and warranted a new trial because "[t]he admission of

a prior verdict creates the possibility that the jury will defer

     9
      

(3d Cir. 1975).
     10
          

                                    7
to the earlier result and thus will, effectively, decide a case

on evidence not before it."11

     In the instant case, the disclosure of the result of the

first trial did not prejudice Spencer to the extent Spencer would

have us believe.     Spencer was at least partly to blame for the

disclosure, as the district court recognized.     Spencer "danced

around" the district court's question whether it was contending

that Olitsky failed to mitigate his damages, and Spencer failed

to raise the issue, which it now argues was incurably

prejudicial, in its motion in limine.

     In addition, the curative instruction given by the district

court negated any prejudice that may have occurred and

distinguishes the instant case from Williams and Coleman.     In

Williams, the trial court gave only "the usual instruction to

disregard everything not heard in court.     No specific instruction

was given the two jurors to disregard the news report of the

prior trial, nor were they instructed that the prior instructions

were not evidence of guilt."12     Additionally, such evidentiary

rulings in criminal trials, with their constitutional overtones,

are at best weakly analogous in civil cases.

     In Coleman, the trial court instructed the jury that it

could consider the result of the prior trial as evidence for a

limited purpose.     In the instant case, however, the district

court clearly instructed the jury, on two occasions, that the

     11
          

     12
          

.

                                   8
first trial was irrelevant and that the jury was not to consider

the occurrence or result of the first trial for any purpose.       We

conclude that those instructions were sufficient to cure any harm

that may have resulted from the mention of the first trial and

its results.

     2.     Spencer's position letter to the EEOC.

     In Olitsky I, the district court admitted into evidence the

entire file on this dispute prepared by Janice Johnson, an

investigator for the EEOC.     That file included Johnson's

handwritten notes that reported Ronald Mangel, general counsel

for Spencer, as saying he "can't rebut if McNally was promoted."

McNally was a younger employee whom Spencer promoted when Olitsky

was fired.      Olitsky used Mangel's statement to argue to the jury

that Spencer had admitted that it could not rebut the allegation

of age discrimination.     We stated that Mangel's supposed

admission of liability was "the kind of exchange among the

parties and the EEOC that informal conciliation ought to

encourage" and that allowing the use of such admissions in later

litigation "would attach a penalty to the candor and

forthrightness that Congress obviously believed were necessary to

the successful conciliation of disputes."13     We held that the

admission of the entire EEOC file constituted reversible error.14

     Johnson gave Spencer notice of Olitsky's claim by letter

dated March 22, 1984.     Mangel responded with a position letter

     13
          Olitsky 

.
     14
          

April 11, 1984 to Johnson (the "Mangel letter").         That

letter denied that Spencer had discriminated against Olitsky and

stated that Olitsky was fired because his sales were inadequate.

The Mangel letter also stated, in part, that "Ms. Jeri Hurvitz

replaced Mr. Olitsky as Merchandising Manager. . . .         Her

birthdate is October 5, 1956."      Spencer referenced the Mangel

letter and attached a copy of it to its answers to Olitsky's

interrogatories during pretrial discovery.

     At the second trial on remand, Olitsky introduced Spencer's

discovery responses, including the Mangel letter.         Olitsky also

introduced a summary chart that included references to and

excerpts from the Mangel letter.         The district court admitted

those exhibits over Spencer's objection.

     Spencer argues that the admission of the Mangel letter,

which was part of Johnson's EEOC file that we held inadmissible

as a whole in Olitsky I, violates both section 706(b) of Title

VII of the Civil Rights Act of 196415 and the holding of Olitsky

I.

     Section 706(b) provides in part:

     If the Commission determines after such investigation that
     there is reasonable cause to believe that the charge is
     true, the Commission shall endeavor to eliminate any such
     alleged unlawful employment practice by informal methods of
     conference, conciliation, and persuasion. Nothing said or
     done during and as a part of such informal endeavors may be
     made public by the Commission, its officers or employees, or
     used as evidence in a subsequent proceeding without the
     written consent of the persons concerned (emphasis added).

In Olitsky I we stated that the admission of the entire EEOC file

     15
          42 U.S.C. § 2000e-5(b).

                                    10
violated section 706(b), but we did not decide whether section

706(b) applied to an ADEA case.16       Neither do we decide that

question here, as we hold that the Mangel letter did not

constitute conciliation evidence to which section 706(b) would

apply.

     The Mangel letter set forth purely factual information and

related Spencer's position on the merits of Olitsky's claim.        The

letter contained no reference to conciliation efforts between

Spencer and the EEOC.     Spencer neither made any offers of

settlement nor responded to any such offers by the EEOC in the

Mangel letter.     In Branch v. Phillips Petroleum Co.,17 we

distinguished between "purely factual material related to the

merits of [the] charge" and "proposals and counter-proposals of

compromise made by the parties during the [EEOC's] efforts to

conciliate" and held that under section 706(b), disclosure of the

former was allowable, but disclosure of the latter was not.18       We

adhere to that distinction and hold that the Mangel letter does

not constitute conciliation material that section 706(b), were it

to apply, would render inadmissible.

     Spencer argues that under the law of the case doctrine, our

holding in Olitsky I prohibited the district court from admitting

the Mangel letter.      Spencer interprets that holding too broadly.

In Olitsky I we held that the entire EEOC file was inadmissible,

     16
          Olitsky 

.
     17
          

(5th Cir. Unit A 1981).
     18
          

                                   11
but we did not hold that each individual item within that file

would be inadmissible in and of itself.      Here we are presented

with only one document from that file.    Finding that the Mangel

letter did not constitute conciliation material, we hold that the

district court did not abuse its discretion in admitting that

single letter into evidence.

     3.    Rumors of Hank Roth's drug use.

     In its response to a pretrial interrogatory from Olitsky,

Spencer stated that Gene Brog, the President of Spencer Gifts,

had heard rumors that Hank Roth, Olitsky's supervisor, had used

drugs.    At trial, Olitsky cross-examined Brog, who approved

Roth's decision to fire Olitsky, about those rumors and

introduced Spencer's response to the interrogatory.      Brog

testified that he did not investigate those rumors.      Olitsky

maintained that, as Roth was younger than Olitsky, that evidence

showed that Spencer treated younger employees more favorably than

older employees and that Spencer's asserted reason for firing

Olitsky was a pretext for age discrimination.

     Spencer argues that the district court erred in admitting

that evidence because (1) Olitsky did not establish a connection

between the failure to investigate the rumors and Spencer's

firing of Olitsky; (2) Olitsky did not prove that Roth actually

used drugs; (3) Olitsky did not show a connection between Brog's

approval of Roth's decision to fire Olitsky and the fact that

Brog heard rumors of Roth's drug use; and (4) under FED. R. EVID.

403, any probative value of the evidence was substantially


                                 12
outweighed by the danger of prejudice, confusion of the issues,

and misleading the jury.   We are convinced that the evidence of

Roth's rumored drug use was not unfairly prejudicial to Spencer,

and we hold that the district court did not abuse its discretion

in admitting it.

      4.   Olitsky's open heart surgery.

      Olitsky testified that he underwent open heart surgery in

February 1984 while searching for another job.   Spencer argues

that the district court erred in admitting that testimony because

it was irrelevant, and any probative value of that testimony was

substantially outweighed by the danger of prejudice to Spencer.

Olitsky asserts that, like his testimony about being

"blacklisted" following his success in the original trial of this

case, the evidence of heart surgery was offered to rebut

Spencer's contention that Olitsky failed to mitigate his damages.

As we noted above, Spencer did not clearly express to the

district court whether or not it was making such a contention.

Thus, the district court did not abuse its discretion in

admitting Olitsky's testimony.

B.   Jury instructions.

      Spencer contends that two elements of Olitsky's prima facie

ADEA case19 were in dispute and that the district court erred in

      19
      In McDonnell Douglas Corp. v. Green, 

, 802, 

, 1824, 

, 677 (1973), the Supreme
Court formulated an evidentiary procedure for race discrimination
cases which has been adapted for ADEA cases. First, the
plaintiff must prove a prima facie case of age discrimination,
which consists of evidence that the plaintiff: (1) was
discharged; (2) was qualified for the position; (3) was within

                                 13
refusing to submit jury questions on those two elements.     Spencer

asserts that the district court should have submitted jury

questions on (1) whether Olitsky was qualified for the position

he held with Spencer and (2) whether Olitsky was replaced by

someone outside the protected class.      By refusing to submit those

questions, Spencer argues, the district court usurped the

province of the jury.

     We rejected that argument in Walther v. Lone Star Gas Co..20

In Walther, we stated:

     When the defendant has produced evidence of a
     nondiscriminatory reason for plaintiff's discharge, and
     plaintiff has had an opportunity to challenge that reason as
     pretextual, the trier of fact should proceed directly to the
     ultimate issue of whether the defendant intentionally
     discriminated against the plaintiff. The initial prima
     facie case is no longer relevant.

          Under the logic of Aikens, it is clear that the issue
     of whether a plaintiff made out a prima facie case has no
     place in the jury room. Instructing the jury on the
     elements of a prima facie case, presumptions, and the
     shifting burden of proof is unnecessary and confusing.
     Instead, the court should instruct the jury to consider the
     ultimate question of whether defendant terminated plaintiff


the protected class at the time of discharge; (4) was replaced by
someone outside the protected class; or (5) by someone younger;
or (6) show otherwise that his discharge was because of age.
Bienkowski v. American Airlines, Inc., 

, 1504-05
(5th Cir. 1988). If the plaintiff proves a prima facie case, a
presumption of discrimination arises which the defendant must
rebut by articulating a "legitimate, nondiscriminatory reason for
its disparate treatment of the plaintiff." 

If the
defendant succeeds in rebutting the presumption, the plaintiff
must prove that the defendant's articulated reasons are mere
pretexts for discrimination. The plaintiff can do this either by
showing that a discriminatory reason more likely motivated the
defendant or by showing that the defendant's reason is unworthy
of credence. 

Dept. of Community Affairs v.
Burdine, 

, 

, 

(1981)).
     20
          

(5th Cir. 1992).

                                   14
      because of his age. To the extent our decisions before or
      after Aikens imply that the issue of prima facie case is a
      factual question for the jury to resolve, we reject such
      implications as dictum.21

The district court did not err in its instructions to the jury.

C.   Olitsky's ERISA claim.

      Section 510 of ERISA prohibits employer action against an

employee who participates in a pension benefit plan for "the

purpose of interfering with the attainment of any right to which

such participant may become entitled under the plan."22   To

recover under section 510, a plaintiff "need not show that 'the

sole reason for his [or her] termination was to interfere with

pension rights'; however, the plaintiff mush show that the

employer had the 'specific intent to violate ERISA.'"23   Olitsky

contended that Spencer violated section 510 by firing him within

a few months before Olitsky would have met the ten-year vesting

requirement for benefits under Spencer's pension plan, thereby

causing him not to receive any benefits under the plan.

      Gene Brog testified that when Spencer rehired Olitsky in

1981, Brog mistakenly believed, and told Olitsky, that because of

Olitsky's break in service with Spencer between 1979 and 1981,

Olitsky was not entitled to credit for his years of service prior

to 1979, so that he would have to start a new ten-year vesting

      21
           

(citations omitted).
      22
           29 U.S.C. § 1140.
      23
      Clark v. Resistoflex Co., Div. of Unidynamics Corp., 

, 770 (5th Cir. 1988) (quoting Gavalik v. Continental Can
Co., 

, 851 (3d Cir.), cert. denied, 

, 

, 

(1987)) (emphasis in original).

                                    15
period.     Brog further testified that he did not learn that

Olitsky had received credit for his prior years of service until

after Olitsky was fired.     Hank Roth also testified that he did

not know the status of Olitsky's vesting when he made the

decision to fire Olitsky.     Spencer argues that there is thus no

evidence that anyone involved in the decision to fire Olitsky

knew that Olitsky was close to vesting when he was fired.

     The district court did not submit Olitsky's ERISA claim to

the jury.     Rather, the district court acted as fact-finder on

that claim and found that Spencer had violated section 510.       The

district court stated:

     [A]s I instructed the jury, I feel free to disbelieve the
     testimony of any witness, even if it is unimpeached. I did
     not find Mr. Brog to be a credible witness, at least on this
     issue about pensions, and I am persuaded by all the
     circumstantial evidence provided by the plaintiff that there
     was specific intent in the timing of his discharge to
     deprive him of his vesting in the pension plan.

     We accept a trial court's findings of fact unless they are

clearly erroneous or influenced by an incorrect view of the

law.24     Olitsky was fired shortly before the vesting of his

pension benefits.     Spencer contends that Olitsky was fired

because of poor work performance and that the vesting of benefits

did not enter into its decision to fire him.     The district court

chose not to give credence to the testimony of the individuals

who made the decision to fire Olitsky, and reasonably inferred

from the proximity of the date of firing to the date of vesting


     24
          Branch-Hines v. Hebert, 

, 1317 (5th Cir.
1991).

                                   16
that Spencer intended to deprive Olitsky of his benefits.     That

finding was not clearly erroneous.

D.   Doubling of the front pay award.

      The ADEA liquidated damages provision25 states, in part:

      Amounts owing to a person as a result of a violation of
      this Chapter shall be deemed to be unpaid minimum wages
      or unpaid overtime compensation for purposes of
      Sections 216 and 217 of this Title; Provided, That
      liquidated damages shall be payable only in cases of
      willful violations of this Chapter. In any action
      brought to enforce this Chapter, the court shall have
      jurisdiction to grant such legal or equitable relief as
      may be appropriate to effectuate the purposes of this
      Chapter, including without limitation judgments
      compelling employment, reinstatement, or promotion, or
      enforcing the liability for amounts deemed to be unpaid
      minimum wages or unpaid overtime compensation under
      this section.

Olitsky argues that a front pay award constitutes an "amount

owing" under that provision, requiring the doubling of such an

award as liquidated damages upon a finding of a willful violation

of the ADEA.      We have not previously addressed that question, but

six other circuits have rejected Olitsky's argument.26     Olitsky

      25
           29 U.S.C. § 626(b).
      26
      See Wheeler v. McKinley Enters., 

, 1163 n.2
(6th Cir. 1991) ("'Front pay' may be recoverable as well, but it
cannot figure in the calculation of liquidated damages.");
Graefenhain v. Pabst Brewing Co., 

, 1210 (7th Cir.
1989) ("Since front pay is a prospective remedy, an award of
front pay damages is not an 'amount owing' for purposes of
section 626(b)."); Cooper v. Asplundh Tree Expert Co., 

, 1556-57 (10th Cir. 1988) (finding that section 626(b), read
in light of section 216(b) of the Fair Labor Standards Act,
provides for two types of relief--"amounts owing" and other
"legal or equitable relief"--and that front pay is included in
the latter and is not subject to doubling); Blum v. Witco Chem.
Corp., 

, 382-83 (3d Cir. 1987); Dominic v.
Consolidated Edison Co. of New York, Inc., 

, 1258-59
(2d Cir. 1987) (front pay is not "amount owing"; as an equitable
award, it is not subject to doubling under section 626(b));

                                   17
has not persuaded us that those circuits have interpreted that

statute incorrectly.   The district court thus did not err in

refusing to double Olitsky's front pay award.

                                 III.

                              CONCLUSION

     The district court did not abuse its discretion in its

evidentiary rulings, partly because of Spencer's attempts to

conceal its trial strategy.    The district court was correct in

refusing to give jury questions on the elements of Olitsky's

prima facie case, as those elements are not factual questions for

the jury to decide.    Spencer has failed to convince us that the

district court's finding that Spencer violated section 510 of

ERISA was clearly erroneous.    In addition, the district court

correctly refused to double Olitsky's front pay award, as such an

award does not constitute an "amount owing" under the liquidated

damages provision of the ADEA.    For the foregoing reasons, the

decision of the district court is

AFFIRMED.




Cassino v. Reichhold Chems., Inc., 

, 1348 (9th Cir.
1987) ("By the express terms of the statute, liquidated damages
are an additional amount equal to the backpay and benefits award"
and thus do not include front pay.), cert. denied, 

,

, 

(1988).

                                  18