975 F.2d 181
27 Collier Bankr.Cas.2d 1462, 24 Fed.R.Serv.3d 588
In the Matter of Marvin A. DIERSCHKE, d/b/a Marvin DierschkeFarms, and Janis L. Dierschke, d/b/a MarvinDierschke Farms, Debtors.Brian DIERSCHKE, Appellant,v.Walter O'CHESKEY, Trustee, and Tom L. Tippens, Appellees.
No. 92-1303Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Oct. 19, 1992.Rehearing Denied Nov. 19, 1992.

Billy Warren Boone, Abilene, Tex., for appellant, debtors.
John Charles Sims, Sims, Kidd, Hubbert & Wilson, Lubbock, Tex., for appellee Walter O'Cheskey.
Stephen D. Beam, Jonathan R. Davis, Shannon, Porter, Johnson, Pfluger & Davis, Weatherford, Okl., for appellee Tom L. Tippens.
Appeal from the United States District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, DUHE and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:

1
Brian Dierschke appeals a decision of the district court denying him relief from entry of a default and the subsequent judgment by default by the bankruptcy court.   The district court affirmed.   Finding neither error nor abuse of discretion we affirm.

Background

2
This case arises out of a voluntary bankruptcy proceeding involving Dierschke's parents.   The trustee and a creditor1 commenced an adversarial proceeding against Dierschke exactly one year after a reorganization plan had been confirmed by the bankruptcy court.   This proceeding involved an alleged series of fraudulent transfers between Dierschke and his parents prior to the filing of their bankruptcy proceedings.2  Both Dierschke and his lawyer were served with a copy of the complaint and the summons.   No responsive pleadings were filed.

3
More than two months later, plaintiffs filed a request for entry of default and moved for a default judgment.   The clerk entered the default on January 9, 1991.   Thereafter, a notice of hearing on damages and attorney's fees was issued.   Dierschke responded with an array of motions, including a motion to set aside the default.   After a hearing the bankruptcy court found "that the failure to answer was willful" and denied the motion.3  Following a second hearing the bankruptcy court entered judgment by default for $98,000 in damages and awarded $5000 in attorney's fees.

4
Upon appeal to the district court Dierschke presented multiple issues which distill to complaints about (1) the bankruptcy court's failure to set aside the default, (2) the entry of the judgment by default, (3) the denial of trial by jury, and (4) the award of attorney's fees.   The district court affirmed in all respects.   This appeal followed.

Analysis

5
Initially we note that the entry of the default was proper.4  The sole issue is whether the court erred in not allowing Dierschke relief therefrom.   On appeal we review that decision for abuse of discretion.

6
Bankruptcy Rule 7055 provides that Federal Rule 55 applies to adversary proceedings.   Rule 55 provides that "[f]or good cause shown the court may set aside an entry of default," and the judgment subsequently rendered thereon.   We are mindful that "good cause" is not susceptible of precise definition, and no fixed, rigid standard can anticipate all of the situations that may occasion the failure of a party to answer a complaint timely.   At the outset it is important, however, to recall that courts " 'universally favor trial on the merits' "5 and that the decision to set aside a default is committed to the sound discretion of the trial court, a discretion that obviously is not unlimited.6

7
As have other courts, we have found it useful to consider three factors in assessing good cause in this default setting.   In United States v. One Parcel of Real Property,7 we stated:

8
In determining whether to set aside a default decree, the district court should consider whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.

9
The bankruptcy court found that Dierschke's failure to answer was intentional, noting that "[t]he plain and simple fact is that Mr. Dierschke chose to play games with this court."   The court did not make any finding on the record as to the remaining factors identified in One Parcel of Real Property, although the court entertained argument on these.

10
We perceive a variance among our circuit colleagues as to whether the court must consider and note its disposition of all three factors on the record.   Decisions of three circuits may be read to require such consideration by the trial court.8  Others have treated the factors in the disjunctive.9  We find the latter course more persuasive.

11
The three factors identified in One Parcel of Real Property are not talismanic.   Courts have been careful to avoid treating them as though they were exclusive,10 relying on such other factors including whether:  (1) the public interest was implicated,11 (2) there was a significant financial loss to the defendant,12 and (3) the defendant acted expeditiously to correct the default.13  Whatever factors are employed, the imperative is that they be regarded simply as a means of identifying circumstances which warrant the finding of "good cause" to set aside a default.   That decision necessarily is informed by equitable principles.14  We conclude that when the court finds an intentional failure of responsive pleadings there need be no other finding.

12
We review the record to determine if the bankruptcy court's acting on Dierschke's culpable conduct suffices.   The factual determination--that the failure to answer was intentional--is reviewed under the clearly erroneous standard.15  Dierschke explained his failure to answer by stating that he was involved in a second suit when served and, as a result, he did not understand that he had been served with a summons in this case.   Dierschke's lawyer was also served.   Counsel testified that he had discussed the complaint with Dierschke and had mailed a copy of same to his client well before an answer was due.   We find no reason to disturb the court's finding that Dierschke "chose to make a decision that he hadn't been served when, in fact, he had."

13
The determination that the default should not be set aside is reviewed for abuse of discretion.   A motion to set aside a default usually arises at a point when final judgment has not been rendered.   Thus, while courts apply essentially the same standard to motions to set aside a default and a judgment by default,16 the former is more readily granted than a motion to set aside a default judgment.   The willful failure to answer, the lack of any meritorious defense, and the existence of resulting prejudice to the plaintiff, depending on the circumstances, typically can provide adequate cause for the court to deny a motion to set aside a default.   Assuming no prejudice to the plaintiffs and that Dierschke had meritorious defenses does not automatically overcome the willful failure to answer.   Willful failure alone may constitute sufficient cause for the court to deny this motion.   Although Dierschke's counsel acted promptly after being notified of the hearing on attorney's fees, considering his client's conduct, the court's refusal to set aside the default was not an abuse of discretion.

14
Having determined that the courts a quo did not abuse their discretion by refusing to set aside the default, we address the remaining issues.   Dierschke claims that the court erred by entering a final judgment.   Specifically, he claims that the pleadings do not support the entry of judgment on default because the complaint failed to allege that there was an unsecured creditor in existence at the time of the challenged transfers.   The applicable law provides a cause of action to any creditor whose claim "arose within a reasonable time before or after the transfer was made...."17  The complaint alleged that the transfers were made "with the actual intent to hinder, delay, and defraud their creditors."   We find that this sufficiently alleged that the transfers were made while creditors held unsecured claims.

15
Dierschke also complains that he was denied the right to a jury trial.   It is universally understood that a default operates as a deemed admission of liability.18  It is also "clear ... that in a default case neither the plaintiff nor the defendant has a constitutional right to a jury trial on the issue of damages."19  Assuming that Dierschke had the right to a jury trial he waived that right when he purposefully chose not to answer the suit and timely request such a trial.

16
Finally, Dierschke complains of the award of attorney's fees.   The complaint did not request such relief.   As an initial matter we note that there is no general authority for the award of attorney's fees in bankruptcy litigation.   In Cates v. Sears Roebuck & Co.,20 we recently held that federal rules usually govern the procedure employed in the taxation of fees in federal proceedings.   This rule has particular application in bankruptcy proceedings which are uniquely federal.   We look, then, to the federal rules.   They do not support Dierschke's contention.   It is true, of course, that Rule 8(a) requires a specification of the relief requested by the plaintiff and that Rule 54(c), and for that matter fundamental fairness, dictate that a judgment by default operates as a deemed admission only as to the relief requested in the complaint.21  But the attorney's fees objected to were not awarded by virtue of the entry of a default judgment alone.   A default was entered on the issue of liability, but before judgment was entered for the attorney's fees Dierschke had notice, appeared, and opposed that award.   Rule 54(d) provides authority for the judgment rendered herein;  it provides that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleading."   The plaintiffs were entitled to the attorney's fees awarded by the court.

17
For these reasons, the judgment of the district is, in all respects, AFFIRMED.

1
 Ordinarily we would question a creditor's ability to pursue relief from a fraudulent transfer pursuant to 11 U.S.C. § 544 sua sponte, see In re Mortgage America Corp., 714 F.2d 1266, 1275-76 (5th Cir.1983) (noting creditor's lack of standing);  however, because the record indicates that the bankruptcy court authorized the creditor's exercise of the trustee's right to reach fraudulent transfers we need not address the standing issue.   See In re Natchez Corp. of W. Va., 953 F.2d 184, 187 (5th Cir.1992)

2
 The transfers are discussed in detail in the district court opinion

3
 The written order states that "the defendant willfully failed to answer the Complaint and Summons and that no excusable neglect has been shown."   Dierschke complains that the wrong standard, excusable neglect, was applied.   The bankruptcy court made clear that it found both a willful failure and no excusable neglect

4
 See Fed.R.Civ.P. 55(a)

5
 Bridoux v. Eastern Air Lines, Inc., 214 F.2d 207, 210 (D.C.Cir.)  (quoting Manos v. Fickenscher, 62 A.2d 791, 793 (D.C.1948)), cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954)

6
 United States v. One Parcel of Real Property, 763 F.2d 181 (5th Cir.1985)

7
 763 F.2d at 183 (citation omitted)

8
 Shepard Claims Service, Inc. v. William Darrah & Assoc., 796 F.2d 190, 194 (6th Cir.1986);  Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14 (3d Cir.1985);  Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C.Cir.1980)

9
 See, e.g., Alan Neuman Prod., Inc. v. Albright, 862 F.2d 1388 (9th Cir.1988) (noting the three-part test and affirming refusal of a Rule 55(c) motion based solely on plaintiff's culpable conduct), cert. denied, 493 U.S. 858, 110 S.Ct. 168, 107 L.Ed.2d 124 (1989);  see also In re Hammer, 940 F.2d 524 (9th Cir.1991) (finding the tripartite test disjunctive);  United States v. Proceeds of Sale of 3,888 Pounds of Atlantic Sea Scallops, 857 F.2d 46 (1st Cir.1988) (default judgment);  Cassidy v. Tenorio, 856 F.2d 1412 (9th Cir.1988) (default judgment);  Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., 687 F.2d 182 (7th Cir.1982)

10
 E.g., Coon v. Grenier, 867 F.2d 73 (1st Cir.1989) (The tripartite "compendium is by no means exclusive....");  Brock v. Unique Racquetball & Health Clubs, Inc., 786 F.2d 61, 64 (2d Cir.1986) ("Among the relevant factors are ...")

11
 E.g., General Motors Corp. v. Blevins, 144 F.Supp. 381 (D.Colo.1956)

12
 E.g., Bridoux, 214 F.2d at 210

13
 E.g., Zuelzke Tool & Eng'g Co. v. Anderson Die Castings, Inc., 925 F.2d 226 (7th Cir.1991)

14
 Koen v. Beardsley, 63 F.2d 595 (10th Cir.1933)

15
 Fed.R.Civ.P. 52(a)

16
 See generally, 10 Wright, Miller & Kane, Federal Practice and Procedure:  Civil 2d § 2692 at 470 (1983).   Because we find that the bankruptcy court's decision did not violate what is commonly recognized as the most lenient standard, we need not decide whether the Rule 55(c) good-cause standard is equivalent to the standard applied to relief from judgment under Rule 60(b).   See FSLIC v. Kroenke, 858 F.2d 1067 (5th Cir.1988)

17
 Tex.Bus. & Com.Code Ann. § 24.005(a) (Vernon 1987)

18
 Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991)

19
 5 Moore's Federal Practice § 38.19 (1992)

20
 928 F.2d 679 (5th Cir.1991) (citing Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938))

21
 Fed.R.Civ.P. 54(c);  Nishimatsu Constr.  Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975)


999 F.2d 1582
U.S.v.Lee***
NO. 92-6629
United States Court of Appeals,Eleventh Circuit.
July 27, 1993

1
Appeal From:  S.D.Ala.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3

**
 Local Rule 36 case


753 N.W.2d 183 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Dexter Elton HARRIS, Defendant-Appellant.
Docket No. 136387. COA No. 276767.
Supreme Court of Michigan.
July 29, 2008.
On order of the Court, the application for leave to appeal the April 8, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.


685 F.2d 421
U. S.v.Rivera
81-1675
UNITED STATES COURT OF APPEALS First Circuit
6/1/82

1
D.Mass.

AFFIRMED


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 08-4219

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY ELKINS,

                Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin, Chief
District Judge. (2:07-cr-00119-1)

Submitted:   September 29, 2008           Decided:   October 14, 2008

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Karen L. Bleattler, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Larry Elkins pled guilty to knowingly taking a motor

vehicle   that   had   been     transported,      shipped,     and    received    in

interstate commerce from the person and presence of a person by

force, violence and intimidation, in violation of 18 U.S.C. § 2119

(2000).       Elkins   was      sentenced    to    a   total    of     180   months

imprisonment.    He challenges his sentence on appeal.

           Elkins      argues     that    his     sentence     is     procedurally

unreasonable because the district court erred in applying the

vulnerable    victim    enhancement.         Elkins    also    argues    that    his

sentence is substantively unreasonable because it is greater than

necessary to comply with the purposes of 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008).

           Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

First, it must calculate the appropriate advisory Guidelines range.

It must then consider the resulting range in conjunction with the

factors set forth in 18 U.S.C.A. § 3553(a) and determine an

appropriate sentence.         United States v. Davenport, 445 F.3d 366,

370 (4th Cir. 2006).      The appellate court reviews the sentence for

abuse of discretion.         Gall v. United States, 128 S. Ct. 586, 597

(2007).      The court must first ensure that the district court

committed no procedural error, such as “failing to calculate (or

improperly     calculating)      the     Guidelines    range,        treating    the

                                         2
Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.”     Id.

            With respect to a district court’s application of the

Sentencing Guidelines, this court reviews factual determinations

for clear error, and legal questions de novo.       United States v.

Blake, 81 F.3d 498, 503 (4th Cir. 1996).        Section 3A1.1 of the

Sentencing Guidelines provides for a two-level increase if the

defendant knew or should have known that a victim of the offense

was “unusually vulnerable due to age, physical or mental condition,

or who is otherwise particularly susceptible to the criminal

conduct.”    USSG § 3A1.1, comment. (n.2).   The commentary explains

that “Subsection (b) applies to offenses involving an unusually

vulnerable victim [when] the defendant knows or should have known

of the victim’s unusual vulnerability.”       USSG § 3A1.1, comment.

(n.2).

            The probation officer recommended a two-level enhancement

under U.S. Sentencing Guidelines Manual § 3A1.1 (2007), finding

that the victim of the offense was unusually vulnerable due to her

age.   Elkins was a passenger in a car that rear-ended the car of an

off-duty Logan County Sheriff’s deputy.      While waiting for police

to arrive at the accident scene, Elkins left the car and ran to

another parking lot in the shopping center and approached Clara

                                  3
Finley, a seventy-one year old woman, sitting in her Jeep Cherokee

with the ignition on and her seat belt off.                  Elkins brandished a

knife and placed the knife at Finley’s throat.                      Elkins forced

Finley from the vehicle and cut her right tricep as he pushed her

out of the car.       Elkins then entered the car and drove away.

Elkins referred to Finley as an “old lady” in his post-arrest

statement.

             Elkins objected to the vulnerable victim enhancement at

sentencing.     The district court found that Elkins noted Finley’s

age at the time he removed her from her car and considered the

circumstances of her car running, her apparent age, that her

seatbelt was off and window open, and that she was about to exit

her   car,   and   found   for   these       reasons   she    was   an   unusually

vulnerable victim. The court further found that older persons’ age

and appearance make them obviously susceptible to physical force

from those more youthful. In this case, due to the size of the

defendant, the vulnerability of the victim would have been apparent

due to her age and physical ability.                   The court held that,

generally, older persons are not as strong as younger persons, that

older women in particular are not as strong as this very large

defendant, and that the disparity would be apparent.

             After overruling Elkins’ objection to the vulnerable

victim and other enhancements, the court considered the advisory

sentencing guidelines range of 130 to 162 months.                        The court

                                         4
informed the parties that it was imposing an upward variance based

on the facts surrounding the offense and the history of the

defendant.       The court imposed a sentence of 180 months--an upward

variance of eighteen months.

            Elkins    contends    that       age   was    not   a    factor    in   his

selection of Finley as a victim, nor did her age facilitate the

completion of the crime, and therefore the court erred in finding

that Finley was a vulnerable victim.                There must be some nexus

between    the    victim’s    vulnerability        and    the    crime’s      ultimate

success.   United States v. Hawes, 523 F.3d 245, 255 (3d Cir. 2008).

In this case, the district court appeared to rely only on Finley’s

age and the fact that her age and size and physical strength

difference   would     be    apparent    to   Elkins      as    he   approached     the

vehicle.

            A victim is not considered vulnerable based only upon the

victim’s membership in a defined class.                  United States v. Frank,

247 F.3d 1257, 1260 (11th Cir. 2001).                    “The enhancement still

requires a fact-based explanation of why advanced age or some other

characteristic made one or more victims ‘unusually vulnerable’ to

the offense conduct, and why the defendant knew or should have

known of this unusual vulnerability.”              United States v. Anderson,

349 F.3d 568, 572 (8th Cir. 2003).

            Here, Elkins clearly observed that Finley was elderly.

While there is no specific information about Finley’s size in the

                                         5
record, there was evidence that Elkins was a tall and larger man,

likely able to overcome an older smaller person.                 Finley has not

disputed the size differential.            “When a vigorous young defendant

inflicts a crime of violence on an elderly person, the defendant's

knowledge that the victim was unusually vulnerable to this crime

due to age is often obvious for purposes of clear error review.”

Anderson, 349 F.3d at 572.           Finley was in full view when Elkins

ordered her out of her car and he made the decision to remove her

from the car after observing her size and appearance.              The facts of

Finley’s age and obvious disparity in size and ability are adequate

to   support    the   court’s   decision.         Accordingly,    there   was   no

procedural error.

            If there is no procedural error, the court then considers

the substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances. United States v. Evans,

526 F.3d 155, 161 (4th Cir. 2008).          Elkins claims that his sentence

is substantively unreasonable because his sentence is greater than

necessary to comply with § 3553(a).           While the court may presume a

sentence within the guidelines range to be reasonable, it may not

presume a sentence outside the range to be unreasonable. Gall, 128

S. Ct. at 597.          Moreover, it must give due deference to the

district court’s decision that the § 3553(a) factors justify the

sentence.      Id.    Even if the reviewing court would have reached a

different      sentencing   result    on    its   own,   this    fact   alone   is

insufficient to justify reversal of the district court. Evans, 526

F.3d at 160.

                                       6
           The court considered that Elkins committed the offense

while fleeing from police, he risked human life in taking Finley’s

vehicle,   his   criminal   history       included   two   prior   robberies

involving threats of violence, and that the sentence must be

sufficient to deter Elkins from further criminal activity.                We

conclude that the sentence may be affirmed as the district court

did not abuse its discretion in applying an eighteen-month upward

variance based on the totality of the circumstances.

           We therefore affirm the sentence.         We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                    AFFIRMED

                                      7


47 Wn. App. 352 (1987)
734 P.2d 961
WILLIAM ROBERT NIELSON, Appellant,
v.
WOLFKILL CORPORATION, ET AL, Respondents.
No. 17200-0-I.
The Court of Appeals of Washington, Division One.
March 30, 1987.
Malcolm Edwards, Charles Wiggins, Howard M. Goodfriend, Edwards & Barbieri, and Paul Luvera, for appellant.
*354 David Soderland, for respondent Wolfkill Corporation.
Kenneth O. Eikenberry, Attorney General, and Michael Tardif, Senior Assistant, for respondent State.
PEKELIS, J.
Plaintiff William Robert Nielson appeals from orders granting summary judgment in favor of defendants Wolfkill Feed & Fertilizer Corporation and the State of Washington. Nielson argues that his personal injury suit is not barred by the Industrial Insurance Act, and that there was sufficient evidence for the case to go to trial.

I

FACTS
On April 30, 1982, Nielson was unloading chemicals from a railroad car at a fertilizer plant operated by Wolfkill Feed & Fertilizer Corporation. A screw auger pushed the chemicals from an opening under the railroad tracks through a metal trough into a warehouse. Because the auger was prone to jamming, it was typically operated with its cover removed in order to observe the flow of chemicals through the trough. As Nielson was shoveling fertilizer at the edge of the trough, he slipped and fell, catching his foot in the rotating blades of the auger. The auger pulled him into the trough, amputating both legs and an arm.
On two occasions prior to the accident, in 1974 and in April 1981, safety inspectors from the State of Washington's Department of Labor and Industries (DLI) toured the Wolfkill plant. In 1981, according to the plant supervisor, an inspector asked if the workers operated the auger with its cover removed. The plant supervisor told the inspector that "they were not supposed to." An employee who was present during the 1981 inspection could not recall any discussion regarding the auger. During a third inspection shortly after the accident, it was determined that Wolfkill had violated safety regulations by operating the auger without a cover.
*355 Nielson brought suit against Wolfkill,[1] alleging that his injuries were occasioned by the "intentional and malicious conduct" of Wolfkill. Nielson subsequently amended his complaint to add the State as a defendant on the theory that the DLI had failed to adequately inspect the Wolfkill plant. Wolfkill moved for summary judgment, arguing that the suit was barred by the Industrial Insurance Act, RCW 51.04.010 et seq. The court granted the motion, finding Wolfkill immune from suit. The State also moved for and was granted summary judgment. Relying on Coulter v. State, 93 Wn.2d 205, 608 P.2d 261 (1980) and Loger v. Washington Timber Prods., Inc., 8 Wn. App. 921, 509 P.2d 1009, review denied, 82 Wn.2d 1011 (1973), the court concluded that the State was not subject to suit under former RCW 51.24.030 as a "third person not in the same employ" as Nielson.

II

SUMMARY JUDGMENT IN FAVOR OF WOLFKILL
The Industrial Insurance Act, RCW 51.04.010 et seq., provides an exclusive remedy for injuries suffered by workers in the course of their employment. With two exceptions, the act abolishes the jurisdiction of the courts over causes of action arising out of such injuries. RCW 51.04.010. The first of these exceptions, RCW 51.24.020, provides for a cause of action by an injured worker against his or her employer if the injury results "from the deliberate intention of [the] employer to produce such injury". Nielson alleged in his complaint that his injury was caused by the "intentional and malicious conduct" of Wolfkill. Thus, he argues, he should be allowed to proceed against Wolfkill under RCW 51.24.020.
[1] Washington courts have consistently interpreted the language of RCW 51.24.020 to require a specific intent to injure. See, e.g., Foster v. Allsop Automatic, Inc., 86 Wn.2d *356 579, 547 P.2d 856 (1976) and cases cited therein. The required intention relates to the injury, not the act causing it. Foster, at 584. Negligence, however gross, is not sufficient to establish a cause of action under RCW 51.24.020, Delthony v. Standard Furniture Co., 119 Wash. 298, 300, 205 P. 379 (1922), nor is a deliberate evasion of recognized safety procedures, Peterick v. State, 22 Wn. App. 163, 189, 589 P.2d 250 (1977), review denied, 90 Wn.2d 1024 (1978).
Nielson has produced no evidence of a specific intent to injure on the part of Wolfkill. Instead, he asks this court to follow James v. VIP Dev. Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984), and to reject the specific intent requirement altogether. To do so would require us to overrule a long line of precedent established by our Supreme Court. This we have no authority to do. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).

III

SUMMARY JUDGMENT IN FAVOR OF THE STATE
Nielson also contends that his action against the State for negligent safety inspection is not barred by the Industrial Insurance Act. He argues, first, that such an action is provided for in RCW 51.24.030; second, that barring such an action would deny him his right to the equal protection of the laws; and third, that the State is liable for negligent safety inspection to the same extent that a private person would be liable. We consider each of these arguments in turn.

A
Under the second exception to the exclusive remedy provision of RCW 51.04.010, a worker whose injury is due to the negligence or wrong of a "third person not in the same employ" as the worker may elect to seek damages from the third person. RCW 51.24.030(1). Nielson contends that the State is such a third person, and that therefore a private cause of action may be brought against the State under RCW 51.24.030(1) for the negligence of DLI inspectors.
The Supreme Court has previously addressed the issue of *357 whether DLI inspectors are subject to suit as third persons in Coulter v. State, 93 Wn.2d 205, 608 P.2d 261 (1980). In Coulter, the court concluded that the Legislature did not intend that DLI inspectors performing their official functions should be liable as third persons under former RCW 51.24.010,[2] which has since been repealed and replaced by RCW 51.24.030. Coulter, at 208. Nielson argues that the rationale of Coulter is inapplicable to the new statute, or, in the alternative, that Coulter was wrongly decided and should be overruled.
Under former RCW 51.24.010, an injured worker could elect either to take benefits under the act or to sue the third person. If the worker elected not to sue, then his cause of action against the third person was assigned to the DLI or, in the case of a self-insured employer, to the self-insurer. If, on the other hand, the worker elected to sue the third person, then the DLI or the self-insurer, as the case may be, would make up any deficiency between the amount recovered from the third person and the amount of benefits the worker would have received had he elected not to sue. The worker would receive benefits initially even if he did elect to sue, but the insurer would have a lien against his recovery for the amount of benefits paid.
The Coulter court pointed out that if the injured worker were allowed to treat the DLI as a third person under former RCW 51.24.010, then the cause of action would be assigned to the DLI if the worker elected not to sue. In such a case, "the department would sue itself, thus becoming both plaintiff and defendant". Coulter, at 208. The court concluded that the Legislature could not have intended to create such an "anomalous result", and that it therefore must not have intended to include the DLI as a third person under former RCW 51.24.010.[3]Coulter, at *358 208.
[2] Under RCW 51.24.030, as under former RCW 51.24.010, an injured worker may still elect to seek damages from a third person not in the same employ. As under the old statute, if the worker elects not to sue, then his cause of action is assigned to the DLI or to the self-insurer. RCW 51.24.050(1). The principal innovations of the new statutory scheme concern the manner in which any damages recovered by either the worker or the insurer shall be distributed between them. See RCW 51.24.050(4), (5),.060(1). However, these changes have no bearing on the issues with which Coulter was concerned. The same "anomalous result" which troubled the court in Coulter is just as theoretically possible under the new statute. For if RCW 51.24.030(1) were interpreted to allow the worker a cause of action against the DLI as a third person, then RCW 51.24.050(1) would permit that same cause of action to be assigned to the DLI. Thus, the rationale of Coulter applies with equal force to the new statute.
Nielson argues in the alternative that Coulter was wrongly decided and should be overruled. Whatever merits his arguments may have, this court is without authority to overrule a decision of the Supreme Court. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).

B
[3, 4] Nielson next contends that even if RCW 51.24.030 was correctly interpreted by the trial court, that interpretation is unconstitutional because it denies him his right to the equal protection of the laws. A 3-part test is used to determine whether a statute such as this one, which involves neither a suspect classification nor a fundamental *359 right, satisfies the requirements of constitutional equal protection. First, any classification created by the statute must apply alike to all members of the designated class. Second, there must be some basis in reality for distinguishing those within the class from those outside it. Third, the classification must bear a rational relation to the purpose of the statute. Myrick v. Board of Pierce Cy. Comm'rs, 102 Wn.2d 698, 701, 677 P.2d 140, 687 P.2d 1152 (1984).
Nielson argues first that the statute, as interpreted by the trial court, creates an irrational distinction between workers such as himself, who are covered by the state fund, and workers who are covered by self-insurers. The latter, he contends, would be permitted to sue the State for negligent inspection because the rationale of Coulter does not apply to them. For if such a worker elects not to proceed against the DLI, then his cause of action is assigned to the self-insurer, not to the DLI. The self-insurer could then proceed against the DLI without creating the "anomalous result" foreseen in Coulter.
However, there is another rationale for the decision in Coulter which applies with equal force to both classes of workers. In Coulter, the court cited with approval Loger v. Washington Timber Prods. Inc., 8 Wn. App. 921, 509 P.2d 1009, review denied, 82 Wn.2d 1011 (1973), which also held that the State was not liable for negligent safety inspection as a third party under former RCW 51.24.010. In Loger the court reasoned that because the functions of the State in the area of industrial insurance were enumerated by statute, and because a private cause of action against the State as a third party had not been expressly provided by the act, the Legislature must have intended that there should be no such cause of action. Loger, at 927-28. We believe Coulter adopts this analysis and makes no distinction, irrational or otherwise, between workers covered by the State fund and workers covered by self-insurers: neither has a cause of action against the State for the negligence of DLI inspectors.
Second, Nielson argues that the trial court's interpretation *360 of RCW 51.24.030 creates an irrational distinction between workers covered by the state fund and persons excluded from coverage altogether under the Industrial Insurance Act. See RCW 51.12.020. Since they are not covered by the act, the latter would not be barred by the act from bringing suit against the State for negligent inspection. However, there is a readily discernible basis for distinguishing the two classes: those in the former class are eligible for benefits under the act, while those in the latter class are not. The classification bears a rational relation to the purpose of the act by promoting the exclusive remedy provision thereof. See former RCW 51.24.010. Consequently, there is no equal protection violation. See Myrick, at 701.
Third, Nielson argues, relying on Hunter v. North Mason High Sch., 85 Wn.2d 810, 539 P.2d 845 (1975), that because victims of private third party tortfeasors would have a cause of action under RCW 51.24.030, the statute creates an irrational distinction between those victims and the victims of negligent DLI inspectors. However, the State's participation in a comprehensive system of industrial insurance provides a clear basis for distinguishing it from the private third party tortfeasor. Moreover, once again, the classification bears a rational relation to the purpose of the Industrial Insurance Act by promoting the exclusive remedy provision of the act. See former RCW 51.24.010. The statute therefore does not violate Nielson's right to the equal protection of the laws. See Myrick, at 701.

C
[5, 6] Finally, Nielson contends that because a private party may be held liable for negligent safety inspection, the State may be held liable as well. He relies on the broad language of RCW 4.92.090, which provides that the State "shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." He fails to recognize, however, that this general waiver of sovereign immunity does not prevent the *361 State from withdrawing certain actions from private controversy. RCW 4.92.090 is general in nature, while the Industrial Insurance Act is special. Where general and special acts are in conflict, the special act will be considered an exception to the general act. See, e.g., Wark v. Washington Nat'l Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976). Because the Industrial Insurance Act provides an exclusive remedy for workers injured in the course of their employment, which does not provide for a private cause of action against the State, it must be read as an exception to the more general provision of RCW 4.92.090. See Wark, at 867-68.

IV

CONCLUSION
In conclusion, we hold that Nielson's suit against Wolfkill and against the State is barred by the Industrial Insurance Act. Consequently the trial court's judgment is affirmed.
SCHOLFIELD, C.J., and RINGOLD, J., concur.
Reconsideration denied July 15, 1987.
Review denied by Supreme Court November 3, 1987.
NOTES
[1]  The complaint also named Wolfkill Corporation as the parent corporation of Wolfkill Feed & Fertilizer Corporation. Nielson does not assign error to the trial court's dismissal of Wolfkill Corporation.
[2]  Laws of 1973, 1st Ex. Sess., ch. 154, § 93.
[3]  Coulter does not acknowledge that under former RCW 51.24.010 the DLI would never be obliged to sue itself. The statute provides that "[a]ny such cause of action assigned to the department ... may be prosecuted ... by the department ... in its discretion". (Italics ours.) Thus, the "anomalous result" foreseen in Coulter need never, and in all probability would never, occur. Furthermore, a suit against the DLI, if it were permitted, would not be pointless from the point of view of the worker. It would, in fact, afford him the possibility of receiving more, but never less, than the amount of compensation provided by the act.


DAVID GRAYTON, Respondent Below-Appellant,
v.
JANE MOORE, Petitioner Below-Appellee.
No. 411, 2007
Supreme Court of Delaware.
Submitted: April 11, 2008.
Decided: May 19, 2008.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices

ORDER[1]
MYRON T. STEELE, Chief Justice
This 19th day of May 2008, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The respondent-appellant, David Grayton ("Father"), filed an appeal from the Family Court's July 5, 2007 custody order, which granted joint legal custody of the parties' minor child to Father and Jane Moore ("Mother"), primary residential custody to Mother, and visitation to Father. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) The record reflects the following: Mother filed a petition for custody of Donny, age 3, on August 24, 2006. Father filed a custody petition on February 16, 2007. The Family Court ultimately consolidated the petitions for a hearing, which took place on June 18, 2007.[2] Both Mother and Father were represented by counsel and testified at the hearing.
(3) On November 8, 2006, several weeks after filing her custody petition, Mother filed a petition for protection from abuse ("PFA") against Father. The Family Court dismissed the petition on November 22, 2006, after determining that Mother had presented insufficient evidence of abuse. Sometime thereafter, Father refused to return Donny after visitation, an altercation between Mother and Father ensued, and both Mother and Father were arrested. The charges against Father were dropped. Mother was placed on probation and directed to attend domestic violence prevention counseling. After further assessment, Mother was placed in a program for victims rather than perpetrators.
(4) Mother then filed three separate affidavits requesting priority scheduling of her PFA petition. The Family Court granted the third request for priority scheduling in the interest of the protection of the parties and their minor child. On January 5, 2007, the Family Court also entered a temporary contact order, which provided that Father would have visitation with Donny every other week from Sunday at noon until Tuesday morning and every other Tuesday until Wednesday at noon. Father filed his custody petition shortly thereafter. In the interim, the parties agreed to modify the Family Court order to provide for visitation with Father every other week from Sunday at noon until Wednesday morning and every Tuesday through Wednesday morning.
(5) The transcript of the June 18, 2007 hearing reflects the following: Mother requested the Family Court to maintain the current custody and visitation arrangement, while Father requested the Family Court to institute a shared residential custody arrangement. Mother testified that Donny has resided with her since he was born. They currently live in an apartment in Newark, Delaware, where they have been since February 2007. Mother's mother and sister live in a development approximately ten minutes away. Mother's sister has four children and Donny has a close relationship with them. Donny also sees his maternal grandmother every day. Donny has a routine for daycare and bedtime to which he has adjusted well. Mother testified that she is employed full-time with the Smyrna School District.
(6) Father testified that he lives in a townhouse about five minutes away from Mother's apartment. His family, including his grandmother, brother and stepfather live approximately ten minutes away. He maintains close ties to his family. Father has lived in the townhouse, which has three bedrooms and two and a half baths, for four years. Donny has his own room, clothes and toys at the townhouse. Father is employed on a part-time basis with Discover Financial Services. Father believes that, despite their problems, he and Mother have similar parenting philosophies. Father is very interested in getting back together with Mother and believes that they can successfully raise Donny together.
(7) In its July 5, 2007 decision, the Family Court observed that each parent has a good relationship with Donny and each responds well to his physical and emotional needs. In addition, each of the parents respects the other's ability to be a good parent to Donny. However, the parents have had a tempestuous relationship with each other ever since Donny was born. The parties argue and even have engaged in physical violence when Donny is present. The Family Court observed that, while neither parent has mental health problems, they are emotionally immature.
(8) During those times when Mother and Father are not getting along, communication between them, particularly as regards Donny, is impossible. The Family Court stated that, in spite of Father's opinion to the contrary, it saw no evidence of the parties having learned from their past mistakes and that, without counseling, their pattern of physical and emotional turmoil will continue. While the Family Court agreed to increase Father's visitation with Donny, it refused Father's request for shared residential custody because of the parties' inability to communicate with each other. After analyzing the factual circumstances against the required statutory factors,[3] the Family Court awarded residential placement of Donny to Mother, with increased visitation to Father. The Family Court also required the parties to complete a counseling program specifically designed to increase their communication as parents.
(9) In his appeal from the Family Court's order, Father claims that the Family Court abused its discretion by a) failing to properly balance the best interests of the child factors and explicitly stating what weight it gave to each factor; b) failing to consider factors beyond those enumerated in the statute; c) relying on unproven allegations of abuse against Father; and d) failing to consider the full spectrum of residential placement options.
(10) Del. Code Ann. tit. 13, § 722(a) requires the Family Court to determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. The statute requires the Family Court to consider all relevant factors, including a) the wishes of the parents, b) the wishes of the child, c) the interaction of the child with the parents, relatives and other residents of the household, d) the child's adjustment to his home, school and community, e) the mental and physical health of all individuals involved, f) compliance of the parents with their rights and responsibilities to their child, g) evidence of domestic violence, and h) the criminal history of the parents and other residents of the household. This Court has held that "[t]he clear intent of the legislature in passing the best interest standards was that each factor listed in the statute be independently considered and then given its due weight and importance relative to the other factors in a manner reflecting the best interests of the child in question."[4] Moreover, this Court has held that the Family Court "is not to limit itself to consideration of the listed factors, but is instead to consider all relevant factors in making its determination."[5]
(11) The scope of this Court's review of a Family Court judgment includes a review of both the law and the facts.[6] If the Family Court correctly applied the law, we review the Family Court's decision for abuse of discretion. The Family Court's judgment will not be disturbed if it is the product of a logical and orderly reasoning process.[7] Only when the Family Court's rulings of law or findings of fact are clearly wrong and justice requires their overturn is this Court free to draw contradictory conclusions.[8]
(12) We have reviewed carefully the record in this case, including, in particular, the transcript of the June 18, 2007 custody hearing. We find no error or abuse of discretion on the part of the Family Court in any of its factual findings or conclusions as set forth in its July 5, 2007 decision. The Family Court correctly applied the statutory factors and its decision was the product of a logical and orderly reasoning process. As such, the Family Court's judgment must be affirmed.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court is AFFIRMED.
NOTES
[1]  The Court assigned pseudonyms to the parties by Order dated September 18, 2007. Supr. Ct. R. 7(d).
[2]  Both Mother and Father previously filed petitions for custody in 2006. The petitions were dismissed by the Family Court after both Mother and Father failed to appear for the hearing.
[3]  Del. Code Ann. tit. 13, §722(a).
[4]  Holmes v. Wooley, Del. Supr., No. 113, 2001, Steele, J. (Jan. 3, 2002) (citing Friant v. Friant, 553 A.2d 1186, 1188 (Del. 1989)).
[5]  Id.
[6]  Wife (J.F.V.) v, Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
[7]  Jones v. Lang, 591 A.2d 185, 186-87 (Del. 1991).
[8]  Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PAUL SCHWARTZ,                                  No. 18-16544

                Plaintiff-Appellant,            D.C. No. 4:15-cv-00048-JAS

 v.
                                                MEMORANDUM*
VINCENT DAGIEL; LOYA, Officer,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                    James Alan Soto, District Judge, Presiding

                             Submitted July 15, 2019**

Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

      Former federal prisoner Paul Schwartz appeals pro se from the district

court’s summary judgment in his action brought under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging

deliberate indifference to his serious medical needs. We have jurisdiction under 28

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.

2014) (en banc). We affirm.

      The district court properly granted summary judgment on Schwartz’s

deliberate indifference claim against defendant Loya because Schwartz failed to

exhaust his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90-91

(2006) (explaining that “proper exhaustion” under § 1997e(a) requires inmates to

complete “all steps that the agency holds out” and to follow administrative

procedural rules (citation and internal quotation marks omitted)); Griffin v. Arpaio,

557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner’s grievance must “alert[] the

prison to the nature of the wrong for which redress is sought” (citation and internal

quotation marks omitted)).

      The district court properly granted summary judgment on Schwartz’s

deliberate indifference claim against defendant Dagiel because Schwartz failed to

raise a genuine dispute of material fact as to whether he suffered any harm.

Although the September 13, 2013 EKG is not in the record, the three subsequent

EKGs that Schwartz had showed no abnormalities. See Toguchi v. Chung, 391

F.3d 1051, 1057-60 (9th Cir. 2004) (a prison official is deliberately indifferent only

if he or she knows of and disregards an excessive risk to a prisoner’s health); see

also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a prisoner must

demonstrate “harm caused by the indifference”).

                                          2                                    18-16544
      The district court did not abuse its discretion in denying Schwartz’s motion

under Federal Rule of Civil Procedure 56(d) because Schwartz failed to satisfy the

requirements of Rule 56(d). See Tatum v. City & County of San Francisco, 441

F.3d 1090, 1100 (9th Cir. 2006) (setting forth the standard of review and

explaining that Rule 56 requires a party to “identify by affidavit the specific facts

that further discovery would reveal, and explain why those facts would preclude

summary judgment”).

      The district court did not abuse its discretion in denying Schwartz’s various

discovery motions because Schwartz has not demonstrated “actual and substantial

prejudice” as a result of the denied discovery. See Hallett v. Morgan, 296 F.3d

732, 751 (9th Cir. 2002) (setting forth the standard of review).

      The district court did not abuse its discretion in denying leave to amend. See

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.

2011) (setting forth the standard of review and explaining that a “district court’s

discretion to deny leave to amend is particularly broad where [the] plaintiff has

previously amended the complaint” (citation and internal quotation marks

omitted)).

      Schwartz’s contentions that the district court denied him due process, failed

to consider his evidence, and demonstrated bias are unpersuasive.

      We do not consider arguments and allegations raised for the first time on

                                           3                                    18-16544
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.

                                        4                               18-16544


6 F.3d 783
In re Warren (Dominic)
NO. 93-1086
United States Court of Appeals,Eighth Circuit.
Jan 22, 1993

1
Appeal From:  D.Minn.

2
REVERSED, VACATED.


141 F.3d 1167
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Boyd Lee CRITEL;  Rita Lorraine Critel, Appellants,v.Curtis H. EVANS, County Judge, York, Nebraska;  Byrce Bartu,District Judge, Seward, Nebraska;  Richard D. Sievers, ChiefJudge, Nebraska Court of Appeals;  Everett O. Inbody, Judge,Nebraska Court of Appeals;  Wesley C. Mues, Judge, NebraskaCourt of Appeals;  Sharon Cuda, Clerk of District Court;Charles W. Campbell, County Attorney;  Loretta Heiden,County Treasurer;  Dean Buller, Chairman County Commissionand all others;  Dale E. Radcliff, County Sheriff and allothers;  Patricia Bredenkamp, Clerk and Register of Deeds;Ann Charlton, County Assessor;  Kelly M. Thomas, Svehla,Barrows & Thomas, York, Nebraska;  Steve A. Rediger;  RandyR. Stoll;  Rex Charlton;  Florance Charlton;  Lanet S.Asmussen, Clerk of Nebraska Supreme Court;  Jeannie Huff;Randy Campbell;  York News-Times, Dan D. Collin, Publisher,York, Nebraska;  Unknown Doe, 1 to 100;  First NationalBank, Appellees.
No. 98-1199.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 5, 1998.Filed Feb. 19, 1998.

Appeal from the United States District Court for the District of Nebraska.
Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
PER CURIAM.

1
Boyd Lee Critel and Rita Lorraine Critel appeal from a final order of the United States District Court1 for the District of Nebraska dismissing their complaint with prejudice for failing to comply with Fed.R.Civ.P. 8(a)(2).  We have carefully reviewed the entire record, and we summarily affirm.  See 8th Cir.  R. 47A(a).

2
A true copy.

1
 The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska, adopting the report and recommendation of the Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska


Unable to extract the content from this file. Please try reading the original.


                                                                                ACCEPTED
                                                                                13-14-00684-CR
        FILED                                                                        THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                               CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                                        3/26/2015 2:25:51 PM
                                                                                DORIAN RAMIREZ
          3/26/15                                                                                CLERK

DORIAN E. RAMIREZ, CLERK           CAUSE 13-14-00684-CR
BY DTello
           IN THE THRITEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                                     FILED IN
                                                                                --
                                                         13th COURT
                                                                           - - ----- OF APPEALS
                                                      CORPUS CHRISTI/EDINBURG,
                                                                       ---                      TEXAS
                                  CORPUS CHRISTI,   TEXAS      - - ---- AM ------
                                                           3/26/2015
                                                             -
                                                            - ID                 -2:25:51 PM
                                                                                -
                                                        ---- VO ------
                                                             DORIAN   - -         E. RAMIREZ
                                                                 ----
                                                           ----               Clerk

                                EUGENIO VALDEZ, APPELLANT
                                                                RECEIVED IN
                                                          13th COURT OF APPEALS
                                                       CORPUS CHRISTI/EDINBURG, TEXAS
                                           VS.             3/26/2015 2:25:51 PM
                                                            DORIAN E. RAMIREZ
                                                                   Clerk
                                    THE STATE OF TEXAS

                                APPELLANT’S AMENDED BRIEF

            Trial Cause 14-04-27914-D; Victoria Co. District Court

                                       Submitted by

                                    W. A. (BILL) WHITE
                                  Attorney for Appellant
                               POB 7422, Victoria, TX 77903
                                (361) 575-1774 voice & fax
                                       TBN 00788659

                               NO ORAL ARGUMENT REQUESTED

                                            1
                  IDENTITY OF PARTIES

    The parties are appellant, Eugenio Valdez, and the
State. Appellant was a resident of Victoria County
during trial.

    Appellant was represented at trial by James Beeler,
Attorney at Law, POB 1841, Port Lavaca, TX 77979.
Appellant is represented on appeal by W. A. (Bill)
White, Attorney at Law, POB 7422, Victoria, Texas
77903.

    The State was represented at trial by Jacquelyn
Johnson and Johna Stallings, ADAs, of the Victoria
County District Attorney’s Office, 205 N. Bridge St.,
Suite 301, Victoria, Texas 77901.

    Appellant’s counsel anticipates that the State’s
reply brief will be prepared and filed by Brendan Guy,
ADA, Victoria County District Attorney’s Office, 205 N.
Bridge St., Suite 301, Victoria, Texas 77901 or another
attorney at said office’s designation.

                           2
                      TABLE OF CONTENTS

                                               Page

Index of Authorities                            4

Appellant’s Brief                               5

Statement of the Case and Statement of Facts    5

Issue Presented                                 6

Summary of Argument                             6

Argument                                        6

Prayer                                          10

Certificate of Service                          11

Certificate of Compliance                       11

                              3
                 INDEX OF AUTHORITIES

Cases                                              Page

Jackson v. State, 287 S.W.2d 346 (Tex.App-Houston 2009)

                                                   10

                           4
                    CAUSE 13-14-00684-CR
                 Trial Cause 14-04-27914-D

EUGENIO VALDEZ, Appellant          IN THE THIRTEENTH

VS.                                COURT OF APPEALS AT

THE STATE OF TEXAS                 CORPUS CHRISTI, TEXAS

                 APPELLANT’S AMENDED BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, EUGENIO VALDEZ, through

counsel of record, W. A. (BILL) WHITE, Attorney at Law,

presenting:

       STATEMENT OF THE CASE AND STATEMENT OF FACTS

      Appellant was indicted by the Victoria County grand

jury in April 2014 for aggravated assault.   On

11/03/14, jury selection began, with trial on the

merits beginning 11/04/14.   Appellant pled “not

guilty”.   Appellant’s jury convicted him of aggravated

assault as alleged in the indictment on 11/05/14, and

punishment commenced on 11/06/14 before the same jury.

Appellant pled “not true” to two felony enhancement

paragraphs alleged in a State’s notice of intent.

                             5
Appellant did not testify at either stage of his trial.

After the jury found both enhancement allegations to be

true, it assessed punishment at 99 years in prison. The

trial judge then sentenced appellant to same. (RR Vol.

5, pp. 67 and 70).

    Appellant timely filed notice of appeal.

                      ISSUE PRESENTED

   THE PROSECUTION IMPORPERLY COMMENTED IN OPENING
STATEMENT AT GUILT/INNOCENCE ON APPELLANT’S SUBSEQUENT
                ELECTION NOT TO TESTIFY

                     SUMMARY OF ARGUMENT

    During opening statement at the guilt/innocence

phase of trial, the State made remarks which, given

that appellant later opted not to testify, constituted

an improper comment on his exercise of his right to

remain silent.

                          ARGUMENT

    During opening statement at guilt/innocence, the

State’s prosecutor stated:

                              6
    “January 18, 2014, it’s approximately 2:00 in the

morning.    The evidence is going to tell a story about

three individuals – three individuals covered in blood.

Only two of those three individuals remember what

happened and only one individual is responsible for the

entire incident.” (RR Vol. 4, p. 12, lines 14-19)

(italics added)

    Testimony during guilt/innocence established that

appellant (Eugenio Valdez aka “Tony”), the complaining

witness (Lorenzo Gonzales, Jr.), and a witness named

Lisa Lopez, all visited the Coyote Bar as a group in

Victoria County, Texas on the date alleged in the

indictment.   These are the “three individuals”.

    While in the bar, an unknown party struck appellant

with a pool stick.    Lorenzo and Lisa then tried to

drive appellant home, where he could better nurse his

wounds.    Inside the car on the way to appellant’s home,

appellant got angry with Lorenzo because he did not

help defend him against the person who hit him with the

stick.    Physical combat ensued between the two men,

                             7
with Lisa witnessing.    During this fight, Lorenzo was

cut deeply with a knife and went to a local emergency

room (ER).

    Testimony further revealed that appellant was

intoxicated at the ER.   According to a police officer

witness who arrived at the ER to investigate on the

night in question, appellant was too intoxicated to be

questioned. (RR Vol. 5, p. 151, lines 10-15)

    The prosecutor’s statement, “Only two of those

three individuals remember what happened …”, is a clear

reference to the complaining witness and to Lisa, the

eyewitness to the stabbing.       The implication that the

third individual (appellant) did not remember the

incident can be construed as a comment on why he would

later choose not to testify during guilt/innocence.

    Thus, the State asked the jury with these remarks

to speculate in advance as to why appellant might elect

not to testify later at guilt/innocence, in violation

of the court’s instructions.       Those instructions in the

court’s charge state, “In this case, the defendant has

                              8
elected not to testify, and you are instructed that you

cannot and must not refer to nor allude to that fact

throughout your deliberations, nor take it into

consideration for any purpose whatsoever as a

circumstance against the defendant.” (RR Vol. 4, p.

178, lines 2-7)

    In addition, by implying that appellant would not

later testify due to an inability to recall the event,

the State suggested that appellant was so intoxicated

on the night in question that he may have flown into a

chemically induced rage and did in fact commit the

crime alleged.    Thus, the State subtly used appellant’s

later election not to testify as evidence against him.

    While the State obviously could not have foreseen

with certainty that appellant would elect silence at

guilt/innocence, it gambled he might not, and could

later use his inability to speak with police at the ER

against him if he did in fact choose to testify (i.e.,

“How do you remember so well now, Mr. Appellant?”).

                             9
    Defense counsel at trial lodged no objection to

these remarks.

    To preserve error for review, a defendant must

timely object to the error during trial.        If the

objection is overruled, the defendant has preserved

error.   When the objection is sustained, and the

defendant desires to preserve argument that the error

incurably infected his right to a fair trial, he should

request an instruction to disregard and move for a

mistrial. See Jackson v. State, 287 S.W.3d 346, 353-354

(Tex.App.-Houston [14th Dist.] 2009, no pet.).

    Regardless, any comment by the State on an

accused’s right not to testify at trial is plagued with

constitutional infirmities.        Applying procedural bars

or the harmless error doctrine only encourages similar

remarks and arguments in future trials in all Texas

counties.   Accordingly, appellate counsel argues in

good faith for a change, extension, or modification of

existing law in the cause at bar.        The right to remain

silent at trial must remain inviolate.

                              10
                         PRAYER

    Appellant prays that conviction be reversed and

that this cause be remanded for new trial.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659

                 CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Brendan

Guy, ADA, Victoria Co. District Attorney’s Office, 205

N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail,

facsimile, electronic delivery, or hand-delivery on

this the 26th day of March 2015.

                                /s/ W. A. White
                                W. A. White

               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 1,244 words.

                                /s/ W. A. White
                                W. A. White

                           11


630 F.2d 1217
23 Fair Empl.Prac.Cas.  1412,24 Empl. Prac. Dec. P 31,236Wilbur L. KEPHART, Plaintiff-Appellant,v.INSTITUTE OF GAS TECHNOLOGY, Defendant-Appellee.
No. 79-2536.
United States Court of Appeals,Seventh Circuit.
Argued May 6, 1980.Decided Sept. 15, 1980.

Stephen G. Seliger, Chicago, Ill., for plaintiff-appellant.
James W. Gladden, Jr., Mayer, Brown & Platt, Chicago, Ill., for defendant-appellee.
Before PELL, Circuit Judge, NICHOLS, Associate Judge,* and CUDAHY, Circuit Judge.
PER CURIAM:

1
Plaintiff Kephart is an individual.  This is not a class action.  He is apparently an economist by training and profession.  Defendant, hereinafter IGT, despite its name, is a profit-making business organization, which performs (we suppose normally in a consultant relationship), energy-related research for the government and private industry.  Defendant employed plaintiff in June 1972 at his then age of forty-four as its Director of the Management Sciences Division.  It discharged him in November 1974 at the age of forty-seven.  He sued in district court alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 and ff.  The district judge dismissed on motion because he had not given a 180 day notice, but this court held the requirement was not jurisdictional and reversed.  581 F.2d 1287 (1978).  The opinion states that the Act should be liberally interpreted to effectuate its purpose to end age discrimination in employment, but its contents do not otherwise affect the present controversy.  The district court allowed extensive discovery, upon the completion of which defendant moved for summary judgment again, and the district judge granted the motion and dismissed the complaint.  Our problem is to determine whether such a dismissal on summary judgment was proper.  Certain state law claims asserted under pendent jurisdiction were also dismissed, but these are not before us and we do not consider them.  We determine that the summary judgment was properly granted and we therefore affirm.

2
We read the district judge's Memorandum Opinion and Order, which is attached to and made a part of this opinion, as holding that the plaintiff's special factual allegations and proffers of proof, as distinguished from his conclusory allegations, do not present a triable issue of fact.  The district judge necessarily, in view of his decision, rejected plaintiff's conclusion that IGT had a policy of discriminating against the aged, but he accepted at least arguendo all the subsidiary facts plaintiff put forward as evidence to support his assertion.  Summary judgment is improper in a discrimination case-or any other-if it involves-as it often must-any weighing of conflicting indications of motive and intent.  Here plaintiff had no indications of motive and intent, supportive of his position, to put on the scales for weighing.  It was a wholly empty case.  In such circumstances, summary judgment is proper.

3
We regret, however, that the parties did not put before this court, nor does the district judge, more specific information as to the nature of defendant's business, the nature of plaintiff's duties in that business, and the nature of the qualifications his job or jobs required.  (He was shifted from one slot to another during his employment.) We gather by inference from the findings and facts of record that the business of defendant was consultancy and research in support of energy-related government and private business.  We gather it was small and informally run.  It had no direct labor force, nor did it produce, sell, or deliver materials.  One might almost call it a "think-tank."  Plaintiff for his first two years was Assistant Director of Management Sciences, a high level position that involved hiring and firing, supervision of the work of others, contacts with clients, and to some degree at least, getting and keeping business.  The name of the division suggests that its work was efficiency or management engineering.  In employing an outside "think-tank," companies and federal agencies often are influenced by what they know about the employee who will work to solve their problems.  In August 1974, the Management Sciences Division was merged into the Engineering Research Division, under one Robert Rosenberg.  Kephart was demoted in rank (but apparently not in pay) to senior economist, and relieved of all management responsibilities.  From then on he got no new work, several projects he was already working on were killed, and he was advised to look for other work.  He was allowed a decent interval, after which he was discharged.  Top officials in IGT had long been dissatisfied with Mr. Kephart, as was Columbia Gas Systems, a major integrated natural gas producer, for whom IGT, through Mr. Kephart, was doing an important study.

4
No reference is made to any written job descriptions and we gather there were none.  There was no written evaluation of an employee's performance except one of the most summary description when he was considered for a salary raise.  Mr. Kephart got one wherein the evaluation said his work was "good" but the evaluator made clear in deposition testimony that he meant only satisfactory.  Other top level employees got better raises at that time.  It is clear that management expected to and did move persons in and out within the organization and on and off the payroll with perfect freedom according to how useful it appeared they were to the company in light of its then mix of business and how successful they were in pleasing the clients.

5
The district judge cited and relied on the classic formula in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) which prescribes a prima facie case for the aggrieved employee to make in a discrimination case.  It involves four elements, one of which is that he was qualified for the job he sought.  In case of a discharge, the employer's experience with him is the best test of that.  If the prima facie case is made, the burden shifts to the employer to "articulate" a valid reason other than the protected characteristic for not hiring (or for firing).  Of course, unsatisfactory performance is the best of reasons, and the district judge construed this to mean unsatisfactory as evaluated by the employer, a decision, if not a mere pretext, not to be second guessed by the court.  The district judge well analyzes the case and we need not duplicate his effort as we incorporate his opinion in ours.  He seems to hold that plaintiff did not make a prima facie case, but even if he did, dissatisfaction with his work and valid reasons for it were "articulated."  We agree.

6
As regards the element of qualification in the prima facie case, we say a word more.  In the case of a company like IGT, with the personnel practices that appear in this record, how do you decide who is qualified?  Presumably Mr. Kephart's degrees in economics do not ipso facto qualify him, nor does the fact that IGT once hired him.  Qualification obviously depends on the nature of IGT's business at any given time.  One year an outgoing business-getter type might be best qualified, while in the next, after the business was got, it might be a cloistered scientist or mathematician.  To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits.  It is an obvious purpose of the Supreme Court in McDonnell, supra, and still more in Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) to make the allocation of burden of proof responsive to the need to stop unsupported and malicious suits short of the necessity for a full dress trial.  The district judge's use of summary judgment and his application of these burden of proof rules are sensitive and accord with law.  He had, however, support in the record for squarely holding that the prima facie case was not made because plaintiff was not, on the date of his dismissal, "qualified" in the sense the formula requires, i. e., his work was not satisfactory to his employers for reasons articulated by them, related to his capabilities, and unrelated to his age.

7
We note that plaintiff could and did depose defendant's top officials.  Where extended depositions are taken, much of the strain in the resources of a party, that a full dress trial would require, has already been imposed.  The purpose of summary judgment is to that extent frustrated.  It may be that in the development of a case such as this it will be necessary to depose company officials in the search of a prima facie case before summary judgment, whenever the employer is a small private outfit that does not maintain a separate personnel department nor the elaborate rules, rituals, forms, regulations, procedures, reports, documents, and records, that characterize the personnel management of large companies and the government.  The presence of these things will at least narrow the scope of inquiry by oral testimony and the ratio of company officials to be interrogated, compared to the whole number.  This is one of the many drawbacks a company will have to incur under our present day laws because of being small, but no doubt it enjoys some advantages too.  At any rate, the district judge has the right and duty to police the use of depositions for mere fishing expeditions and to favor the development of relevant facts by less costly means.  We note plaintiff complains that the depositions were useless to him without the right of cross-examination at trial being accorded besides.  Apparently he followed the common practice of just getting the deponent's stories and not trying to shake them.  We do not find this a sufficient reason for not deciding the case on summary judgment.

8
The district judge's opinion and order are attached hereto and incorporated by reference in this opinion.

9
AFFIRMED.

APPENDIX
MEMORANDUM OPINION AND ORDER

10
Wilbur L. Kephart, a former employee of the Institute of Gas Technology (IGT), brought this claim of age discrimination against his former employer.  He alleges that his termination by IGT and its refusal to provide recommendations to future employers violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and violated Illinois law.  Defendant has filed a motion for summary judgment.

11
Extensive discovery has been taken in this case, making it possible to set out the facts not in dispute with confidence.  Kephart was hired in June 1972 as Assistant Director of the Management Sciences Division of IGT.  He was then 45 years old.  His first assignment was as project manager on a study of gas allocation for the Columbia Gas System.  It is uncontroverted that this project was not completed on time and that certain of Kephart's superiors were dissatisfied with his performance on it.  Kephart's own version of his experience on this project, which the court will accept as true, describes it as an "education".  He felt that the project could not be completed in time for the amount of money projected, and disagreed with what he thought was IGT's approach to research, which was "to do as much research activity within a given general area until all that money was spent and then they would go back and say, 'Here's the results we found to date.  Now if you want us to do more, give us more money.' "  There is no dispute as to the fact that conflicts developed between Kephart and his employer as a result of this project.

12
Other IGT employees made complaints about Kephart's performance on other projects during the two years he was Assistant Director of Management Sciences.  Kephart was aware at the time of these complaints and knew that his superior, Jack Huebler, was dissatisfied with his performance.  Although one complaint, about Kephart's presentation at a meeting, was, according to Kephart, based on a misunderstanding, it remains the case that at least one of Kephart's superiors was dissatisfied with what he thought had been a poor presentation at that meeting.

13
For each of the two years Kephart was an assistant director, he received a performance evaluation of "good".  However, the person who made this evaluation, William Bodle, said that he thought Kephart was incompetent in some ways, that his work "left something to be desired," and that his work on the Columbia Gas project was "poor".  Kephart also received a raise each year, though these raises were smaller than those given to almost all other members of the administrative staff.

14
In August, 1974, the Management Sciences Division of IGT was merged into its Engineering Research Division under the direction of Robert Rosenberg.  Kephart was told at the time that there was dissatisfaction with the performance of the Management Sciences Division.  He was demoted in this reorganization to the position of senior economist, and was relieved of all management responsibilities.  Rosenberg did not give Kephart any new projects, and killed several of the projects Kephart had been working on.  In November, Rosenberg left a note on Kephart's desk saying, "How is the job hunting going?  Well?"  Kephart claims that this was the first time he was informed that he had been expected to leave IGT.

15
Kephart did have advance warning, though, that he had been given six months to improve or he would have difficulty in retaining his job.  Plaintiff does not contradict the testimony of Dr. Henry Linden, the Executive Vice President and Director of IGT, who states that he told Kephart prior to the August reorganization that he was being given six months to perform better, nor does plaintiff contest the testimony of Robert Rosenberg, who viewed the six month period as an "arrangement" leading to Kephart's discharge.  Kephart was aware during the last months of his employment that it was important for him to prove himself.  In his deposition at p. 163, he states, "I was working what I would call defensive action.  I was trying to do what I could do to maintain my credibility, my professional credibility.  Because, before I could go out and put my resume on the streets, I had to have some accomplishments."

16
Immediately after receiving the note from Rosenberg, Kephart talked to Linden who, Kephart claims, thought the note was a mistake.  Four days later, however, Linden informed Kephart that he was to be terminated, stating that "There is just too much controversy about you here."  Kephart was given an official notice of termination shortly thereafter.

17
After the reorganization of IGT, no one assumed all of the duties Kephart had performed as assistant director.  However, several younger economists were hired after Kephart's termination to perform less important functions.  Plaintiff asserts that younger men were given preferences in promotion as well as in hiring.  He points to the treatment of Nick Biederman as an example.  Though complaints had also been lodged against Biederman on several early projects, he was turned over to Rosenberg to be given another chance.  This treatment was justified by Kephart's superior, Jack Huebler, by the fact that Biederman "was a very young man when he came to work for IGT.  He went through many growing pains, as most college graduates do.  He's a little of a beatnik."  Rosenberg intended to make something out of Biederman, and did so.  He apparently had no intention of giving Kephart another chance to improve, viewing the demotion as an "arrangement" leading to Kephart's discharge.  At best, Rosenberg thought it highly unlikely that Kephart would improve sufficiently to justify his remaining with the company more than six months after the reorganization.

18
Plaintiff has also produced statistical evidence from an investigation by the Department of Labor showing that of the three people on the professional staff discharged between 1973 and 1975, all were over the age of 40.  Most of those hired during that time were under 40.  Kephart also states, as indicative of IGT's attitude, that he was told by Linden while he was an assistant director, that he should "act like what Rosenberg does, and that is to hire young people who are your marines who are going to do what you want and who are going to begin to work your problems for you.  That's how I got the message that I should go after young people and train them to where they will work for me and be loyal to me."  Kephart also stated that he was not allowed to hire a man with 20 years experience because "his technology was too old."

19
Plaintiff's burden of proof in an age discrimination case is to show that age was a factor in the decision to terminate him.  Age need not have been the sole motivating factor but it must have been the " 'determining factor' in his discharge in the sense that 'but for' his employer's motive to discriminate against him because of age, he would not have been discharged."  Loeb v. Textron, 600 F.2d 1003, 1019 (1st Cir. 1979).  The courts have generally applied the order of proof test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).  In Green, the Supreme Court held that a Title VII plaintiff carries the initial burden of establishing a prima facie case of intentional discrimination.  He may do so by showing that he belongs to the group allegedly discriminated against, that he was qualified for the job he sought, that he was not hired, and that the employer continued to seek applications for that position.  Id. at 802, 93 S.Ct. at 1824.  After this showing, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection."  Id.  The Supreme Court has recently made it clear that it is not the employer's burden to prove the absence of discrimination, only to state a legitimate reason for the refusal to hire.  Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978).  After the employer has articulated a justification, the burden shifts back to the employee to prove that this reason was merely a pretext for the alleged discrimination.  411 U.S. at 804, 93 S.Ct. at 1825.

20
While the Sixth Circuit has held that the Green guidelines should not be simply borrowed and applied automatically in age discrimination cases, Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975), the courts have generally spelled out the requirements of a prima facie case with only slight variations on the Green theme.  For example, the court in Wilson v. Sealtest Foods Division, 501 F.2d 84 (5th Cir. 1974), found that plaintiff had stated a prima facie case by showing that he was within a protected class, was doing "apparently satisfactory" work, was asked to take early retirement against his will, and was replaced by a younger person.  Similarly, in Loeb v. Textron, Inc., 600 F.2d at 1014, the plaintiff was held required to prove "that he was in the protected age group, that he was performing his job at a level that met his employer's legitimate expectations, that he nevertheless was fired, and that (the employer) sought someone to perform the same work after he left."  The Laugesen court, on the other hand, stated that the plaintiff's burden is simply to "prove his claim that he was discharged because of his age."  510 F.2d at 313.  And the Tenth Circuit, in Toussaint v. Ford Motor Co., 581 F.2d 812, 815 (10th Cir. 1978), stated that "the plaintiff must prove more than simply the fact that he was within the protected age group and that he was adversely affected by a decision of management relating to conditions of employment."

21
Plaintiff cannot dispute that his employer has articulated a legitimate reason for his dismissal.  His arguments address the question whether the employer will be able to prove that its reasons were legitimate.  The Supreme Court indicated in Sweeney that it regards the distinction as an important one. The court finds, therefore, that the employer's burden of rebutting the plaintiff's prima facie case has already been satisfied.  The plaintiff, in addition to stating a prima facie case, must also show that IGT's stated reasons for firing him were mere pretexts for discrimination due to age.  He must show that had it not been for his age, he would not have been fired.

22
The court must now determine whether there are material issues of fact remaining on these elements of plaintiff's case: whether plaintiff was in fact performing his work satisfactorily; whether his employer sought others to perform the work plaintiff had been doing; and whether the employer genuinely believed Kephart was not performing satisfactorily or was using this reason as a pretext for age discrimination.

23
According to the test formulated by the First Circuit in Loeb v. Textron, Inc., 600 F.2d at 1014, the plaintiff must show as part of his prima facie case only that he "met his employer's legitimate expectations".  This formulation raises the question whether the plaintiff would be permitted to show that the employer's demands were illegitimate in the sense of being unfair or arbitrary.  Plaintiff's assertion that the company's goals in the Columbia Gas project were unrealistic or constituted an approach to research that Kephart considered unsound might be relevant under this approach.

24
The Age Discrimination in Employment Act, however, was not intended as a vehicle for judicial review of business decisions.  See Havelick v. Julius Wile Sons & Co., 445 F.Supp. 919, 926 (S.D.N.Y.1978).  The question before the court is not whether the company's methods were sound, or whether its dismissal of Kephart was an error of business judgment.  The question is whether he was discriminated against because of his age.  Although an employer may not make unreasonable expectations, and must make the employee aware of just what his expectations are, beyond that the court will not inquire into the defendant's method of conducting its business.  If Kephart was not doing what his employer wanted him to do, he was not doing his job.  The plaintiff admits that conflicts developed between himself and his superiors as to how projects should be carried out.  He does not contradict the affidavits and depositions of other IGT employees stating that they thought his work was unsatisfactory.  In response, he offers only the judgments of some who thought his work was good.  These contrary assessments of his performance do not impeach the legitimacy of his employer's expectations.  Plaintiff does not raise a material issue of fact on the question of the quality of his work merely by challenging the judgment of his superiors.

25
On the second question, whether the employer sought younger people to perform Kephart's job, plaintiff has presented documents showing that several new younger economists have been hired by IGT.  Although these new employees did work that Kephart could have done, there is no showing that they did the work that he was supposed to do either as assistant director or as senior economist.  Kephart's was a position of more responsibility than appears to have been given to the new economists.  In addition, plaintiff admits that the administrative responsibilities he had as assistant director were taken over by Glenn Seay, who was older than Kephart.

26
There are thus insufficient facts in dispute that would permit a finding that plaintiff has made a prima facie showing of age discrimination.  Uncontradicted evidence reveals that he was not living up to his employer's expectations, and that he was not replaced in his particular position by persons younger than himself.  Assuming arguendo that plaintiff could satisfy the initially required showing, the question would still remain whether his employer genuinely believed that he was not performing satisfactorily, thus negating any inference that the reasons given by IGT were pretextual.

27
Kephart himself has stated that there were three primary reasons for his discharge: First, he felt that "special interests" did not want certain of his projects done; second, he thought there were people in IGT who were opposed to its having a Management Sciences Division; and finally, he thought that age played a role.

28
When asked about the reasons for age discrimination at IGT, Kephart stated that the company wanted people with less experience so that it would be able to control the way they performed projects.  The company was looking for people who were, in Kephart's words, "impressionable and very good technically."  Thus, Kephart's own statements reveal that the company's discrimination was not so much against age as against experience and independence.  The statement by Linden relied on by plaintiff, that he should hire young people because they would do what he wanted, also reveals that the company prized loyalty as much as youth.

29
Even if the court accepts the argument that the company's bias against the independent-minded had a disparate impact on employees over the age of 40, that does not provide a basis for a finding that this particular plaintiff would have been retained, if he had been under 40.  Aside from these few statements by IGT officials indicating a preference for the impressionable, only the statistics on hiring and promotion support Kephart's claim that the reasons given for his discharge were pretextual.  These statistics, while of some aid in showing discriminatory intent, are not significant in age discrimination cases unless the disparities in treatment are quite large.  See Morelock v. NCR Corp., 586 F.2d 1096, 1107 (6th Cir. 1978); Mastie v. Great Lakes Steel Corp., 424 F.Supp. 1299, 1319-20 (E.D.Mich.1976).  The reason such evidence is of little value in assessing discriminatory intent was explained by the court in Laugesen v. Anaconda Co., 510 F.2d at 313: "It is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in."  Moreover, the statistical evidence relied on by plaintiff is contradicted by personnel cards produced by defendant showing that most of the employees on Rosenberg's senior staff were over 40.

30
In short, even were there a dispute in this case about whether Kephart's work was good; there is no dispute about the fact that some of Kephart's superiors did not think his work was good.  As to whether his employer's dissatisfaction was a pretext for discrimination, plaintiff has introduced no documents to justify a finding that any age discrimination existed in his case.

31
Summary judgment may not often be an appropriate means of resolving a question as elusive as the existence of discriminatory intent.  Indeed, the court in Wilson v. Sealtest Foods Division, 501 F.2d at 86 went so far as to find that a directed verdict for an employer was improper where, "(i)t is possible that in the presentation of the employer's case, further evidence relating more directly to the requisite specific intent to discriminate might be adduced during cross-examination by the Appellant."  However, this cannot be taken to mean that a directed verdict or summary judgment is never an appropriate means to resolve age discrimination cases.  Indeed, summary judgment was granted in a case such as this one in Brennan v. Reynolds Co., 367 F.Supp. 440 (N.D.Ill.1973).  Plaintiff tries to distinguish Brennan by saying that the reasons given for the dismissal in that case were formulated contemporaneously, while those in this case are merely belated justifications.  However, in this case there are the facts, in addition to subsequently stated justifications, that Kephart was demoted immediately prior to his termination, for reasons unrelated to his age, and that he was informed of dissatisfaction with his work.

32
In this case, unlike Wilson, plaintiff has not established a prima facie showing of discrimination.  He should not, in such a case, be permitted to rely on the hope that he will be able to develop evidence on cross-examination of his opponent's witnesses.  This is especially true where, as here, the party opposing the motion for summary judgment has already had a chance to examine the movant's witnesses at their depositions.  Under such circumstances, it is not unfair to grant summary judgment if no other evidence has been introduced indicating that their testimony is untrue.  Radio City Music Hall Corp. v. United States, 135 F.2d 715 (2d Cir. 1943).

33
Plaintiff has failed to meet his burden of showing that there is a genuine issue of material fact remaining for trial.  Defendant's motion for summary judgment is therefore granted.  In view of the dismissal of plaintiff's federal claims, there is no longer pendent jurisdiction over his claims under state law.  These, too, are dismissed.

*
 The Honorable Philip Nichols, Jr., Associate Judge of the United States Court of Claims, is sitting by designation