Olitsky v. Spencer Gifts, Inc., 91-1010
| Decision Date | 22 June 1992 |
| Docket Number | No. 91-1010,91-1010 |
| Parties | 61 Fair Empl.Prac.Cas. (BNA) 1507, 59 Empl. Prac. Dec. P 41,657 John D. OLITSKY, Plaintiff-Appellee, Cross-Appellant, v. SPENCER GIFTS, INC., Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carol Stephenson, Akin, Gump, Strauss, Dallas, Tex., Lawrence D. Levien, Roxane N. Sokolove, Washington, D.C., for defendant-appellant, cross-appellee.
Hal K. Gillespie, Gillespie, Rozen & Tanner, Dallas, Tex., for plaintiff-appellee, cross-appellant.
Paul Bogas, E.E.O.C., Donald R. Livingston, Washington, D.C., for amicus curiae E.E.O.C.
Appeals from the United States District Court for the Northern District of Texas.
Before BROWN, KING and WIENER, Circuit Judges.
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.
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 I, 3 we reversed and remanded, holding that the district court had erroneously admitted into evidence the EEOC's file on Olitsky's charge.
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 his front pay award after the jury found that Spencer acted willfully in violating the ADEA.
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
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 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 In arguing that the evidence of the result of the first 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.
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
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
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 to the...
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