                 UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                          __________________

                             No. 95-50792
                          __________________



     RONALD E. CARROLL,

                                         Plaintiff - Appellee,

                                versus

     TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                         Defendant - Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
                          (A-93-CV-484)
         ______________________________________________

                          June 26, 1996
Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

     The Texas Department of Criminal Justice ("TDCJ") appeals from

an adverse jury verdict that TDCJ's discharge of an employee,

Richard Carroll, was a willful violation of the Age Discrimination

in Employment Act ("ADEA").     See 29 U.S.C. § 623(a).    The jury

awarded $50,000 in damages which the district court doubled based

upon the willfulness finding.    See id. § 626(b).   TDCJ challenges



*
     Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the sufficiency of the evidence to support the jury's findings of:

(1) an ADEA violation; (2) the willfulness of that violation; and

(3) the $50,000 backpay award.     TDCJ also contends that the jury

was improperly instructed on the applicable legal standard. Having

carefully considered the record, the briefs, and argument of

counsel, we affirm for the following reasons:

     1.     Under the Boeing standard,1 the evidence is legally

sufficient to support the jury's finding that TDCJ unlawfully

discharged Carroll because of his age.       Carroll presented evidence

of numerous age discriminatory remarks made by his supervisor, Mike

Teare.     These comments included statements that older managers

needed to be replaced by younger ones.       There is evidence that the

jury could credit that some of these comments were made in the

presence     of   the   ultimate       decisionmaker,   Larry   Fickel.

Additionally, Teare fired a co-worker (who was also over fifty) in

Carroll's presence and Teare reiterated at that time that he wanted

younger managers.   Without authorization, Teare fired Carroll the

next day.     There was evidence that Carroll was replaced by a

younger worker.

     To be sure TDCJ presented an alternative theory for Carroll's

discharge--failure to follow certain policies and procedures.      The

jury heard extensive evidence from TDCJ on this alternative reason.

Likewise, Carroll presented evidence vigorously contesting the



1
     See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en
banc).

                                   2
pretext.      As we said in Wilson v. Monarch Paper Co., 939 F.2d

1138, 1146 (5th Cir. 1991), "[t]he jury heard both sides and the

jury spoke."     Just as in Wilson, there were clearly two sides to

this case.    The jury believed Carroll and his evidence; it did not

believe the evidence proffered by TDCJ.     We conclude the evidence

is legally sufficient to support the jury's verdict.

     2.      Similarly, the evidence is legally sufficient to support

the jury's finding of a willful violation of the ADEA.   Under Hazen

Paper Co. v. Biggins, 113 S. Ct. 1701, 1710 (1993), a willful

violation of the ADEA occurs when the employer either knew or

showed reckless disregard for the matter of whether its conduct was

prohibited by the statute.    In this case, the jury found that TDCJ

discriminated against Carroll by: informing him that he would be

demoted; replacing him with a much younger person; and notifying

him that older managers would be replaced by younger ones.     As we

noted above, the evidence is sufficient to support these findings.

Fickel and Teare admitted at trial that they knew that basing their

actions on Carroll's age would amount to an ADEA violation. TDCJ's

defense was that it did not act based upon Carroll's age.   The jury

concluded otherwise. Consequently, there is sufficient evidence to

support the jury's willfulness finding.

     3.      The evidence is also sufficient to support the backpay

award.    TDCJ contends that the district court's failure to grant a

frontpay award due to Carroll's employment status precludes a jury

award for backpay damages.       TDCJ is incorrect.    The jury was


                                   3
charged with determining the amount of damages Carroll would have

earned absent the illegal discharge.     Carroll presented evidence

that his former position continued after his discharge.        There was

also evidence that Carroll was told he could remain in a demoted

position on future sites.     Carroll presented evidence that his

backpay damages were well in excess of the jury's ultimate award.

Notwithstanding   the   district   court's   reluctance   to   use   its

equitable powers to award frontpay damages, there is sufficient

evidence to support the jury's backpay award.

     4.   Finally, the district court did not abuse its discretion

in charging the jury.   The court properly instructed the jury that

the discriminator need not be the ultimate decisionmaker, but a

significant participant in the decision to terminate the plaintiff.

See E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th Cir.

1994), cert. denied, 115 S. Ct. 1252 (1995).    Moreover, the charge,

taken as a whole, does not leave this Court with a substantial and

ineradicable doubt that the jury was improperly guided.

     The judgment of the district court is AFFIRMED.




                                   4
