689 F.Supp. 1060 (1987)
Cindy S. PERCIVAL and John F. Percival, parents and natural guardians of Charles Thomas Percival, an infant, Cindy S. Percival, individually; and John F. Percival, individually, Plaintiffs,
v.
AMERICAN CYANAMID COMPANY, a corporation, d/b/a Lederle Laboratories, Defendant.
No. CIV-85-2671-P.
United States District Court, W.D. Oklahoma.
December 9, 1987.
*1061 Ed Abel, Glen Mullins, Oklahoma City, Okl., for plaintiffs.
William G. Smith, Brenda Penland, Stephen Peterson, Oklahoma City, Okl., John Clough, Mary Ann Murphy, Larry Larson, Barry L. Rodolff, Odette L. Ashley and JoAnn M. Zaleskas, Santa Monica, Cal., for defendant.

ORDER
PHILLIPS, District Judge.
Before the Court are two motions for partial summary judgment filed October 27, 1987, by defendant American Cyanamid Company, d/b/a Lederle Laboratories (hereinafter "Lederle"). The first motion concerns the learned intermediary and sophisticated user rules; the second motion concerns the adequacy of Lederle's warnings. Plaintiffs responded in opposition to both motions on November 16, 1987, and both parties presented oral argument to the Court on November 23, 1987.[1]
The facts presented to the Court upon a Motion for Summary Judgment must be construed in a light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. The Court is precluded from granting summary judgment where there is a genuine dispute as to a fact which is material, that is a fact which is relevant under the applicable substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985).
For the reasons set forth below, both of Lederle's motions for partial summary judgment are GRANTED.

A. INTRODUCTION
In 1981 and 1982, when Charles Thomas Percival was an infant, he received three vaccinations of Lederle's DTP vaccine known as Tri-Immunol. He thereafter developed severe and permanent neurological damage, allegedly as a result of an adverse reaction to the DTP vaccine.
In each instance, the vaccine was administered by Dr. Mary Abbott in her office in Norman, Oklahoma. Dr. Abbott was young Charles Percival's treating physician, and treated him numerous times.
Charles Percival's parents brought this action against the manufacturer of the DTP vaccine on various theories, including, inter alia, that Lederle failed to directly warn them of the possible adverse reactions to the DTP vaccine, and that Lederle *1062 failed to adequately warn Dr. Abbott of the possible adverse reactions.
Lederle contends in the two motions for partial summary judgment presently before the Court, that its duty was to warn the prescribing physician, not the ultimate consumer, and that its warning contained in the package insert was adequate.
This first issue presented by these motions is whether Lederle had a duty to directly warn the plaintiffs of the risks involved in taking the vaccine, or whether its duty was to warn the prescribing physician.
If Lederle's duty was to warn the prescribing physician rather than the plaintiffs, the second issue presented is whether Lederle's warning to the physician was adequate as a matter of law.

B. LEARNED INTERMEDIARY RULE
The general rule in manufacturers' product liability actions in Oklahoma is that a manufacturer has a duty to warn the consumer of potential dangers which may occur from the use of its product when the dangers are known or should be known. Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla.1974).
However, in cases involving prescription drugs, the manufacturer has a duty to warn only the prescribing physician. Cunningham v. Pfizer, 532 P.2d 1377 (Okla. 1974). The reason for this rule is that the physician acts as a learned intermediary between the manufacturer and the consumer. McKee v. Moore, 648 P.2d 21 (Okla. 1982). The physician is in the best position to evaluate the patient's needs, to balance the benefits and risks of the particular prescription drug, and to supervise its use. Id. The patient is expected to and presumably does rely on the physician's judgment. Id.
One exception to the learned intermediary rule arises when the prescription drug is not administered as a prescription drug. Cunningham, supra. In Cunningham a fifteen year-old boy took an oral polio vaccine at a mass immunization clinic in Tulsa, Oklahoma. The manufacturer of the vaccine had not given any direct warning to the boy or his parents concerning the possible effects of the vaccine. The Oklahoma Supreme Court held that the manufacturer did have a duty to warn the consumers directly because the vaccine had been administered in a mass immunization program and the evidence did not indicate the doctor present at the clinic assessed medical risks in light of his knowledge of each patient's needs and susceptibilities. Id. at 1381. Davis v. Wyeth Laboratories, 399 F.2d 121 (9th Cir.1968); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.1974). See also Williams v. Lederle Laboratories, 591 F.Supp. 381, 388-89 (S.D.Ohio 1984) (containing a concise history of the development of this exception to the learned intermediary rule).
The Oklahoma Supreme Court also recognizes a second exception to the learned intermediary rule. It arises if the FDA has mandated, with respect to a particular drug or device, that warnings be given to the patient as well as to the physician. McKee v. Moore, 648 P.2d 21 (Okla. 1982).
Neither exception arises in the instant case. There is no evidence the FDA mandated that warnings with respect to Tri-Immunol be given to the patient directly. Nor do the facts give rise to the mass immunization exception. Dr. Abbott was the treating physician and had treated young Charles Percival numerous times. She administered the vaccine in her office.
It is the physician's duty to inform herself of the qualities and characteristics of the prescription drugs she administers, and to exercise her judgment based on her knowledge of the patient and the product. The physician decides which facts should be told to the patient. McKee, supra at 24-25. "Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise an informed judgment in the best interest of the patient." Id. at 25.
*1063 Accordingly, this Court holds that Lederle did not have a duty to warn the plaintiffs directly of the risks involved in its vaccine. Rather, Lederle's duty was to warn the prescribing physician, who acts as a learned intermediary.[2]

C. ADEQUACY OF WARNINGS
The next issue to be addressed is whether the warning Lederle gave to the prescribing physician, Dr. Abbott, was adequate as a matter of law.
Though ordinarily the adequacy of a warning is a question of fact for the jury, Ross v. Jacobs, 684 P.2d 1211 (Okla.App. 1984), it is not improper for the court to determine that a warning is adequate as a matter of law. Steele v. Daisy Mfg. Co., 743 P.2d 1107 (Okla.App.1987).
The DTP vaccine is used to immunize children against the diseases of diphtheria, pertussis (whooping cough) and tetanus. The pertussis component can cause adverse reactions ranging from swelling and fever to, rarely, severe brain damage or death. See Toner v. Lederle Laboratories, 779 F.2d 1429, 1430-31 (9th Cir.1986) for a concise, informative discussion of the development and licensing of this vaccine.
Lederle furnished purchasing doctors, such as Dr. Abbott, with package inserts describing possible adverse reactions and contra-indications to the vaccine's use.
The package insert dated February 1980 was the warning distributed along with vials of vaccine distributed during 1981 and 1982. It contained the following language:
ADVERSE REACTIONS
Adverse reactions may be local and include pain, erythema, tenderness and induration at the site of injection. Significant reactions attributed to the pertussis vaccine component have been high fever greater than 39°C), a transient shock-like episode, excessive screaming, somnolence, convulsions, encephalopathy and thrombocytopenia. Such reactions almost always appear within 24 to 48 hours after injection but have been thought to occur after an interval as long as seven days. A small nodule may develop at the site of injection and remain for a few weeks before being completely absorbed. Sterile abscesses have been reported. Systemic reactions include mild to moderate transient fever, chills, malaise, and irritability.

Neurological disorders such as encephalopathy, possibly due to the pertussis component, have been reported to occur rarely following the injection of this product and they may be fatal, or result in permanent damage to the central nervous system.

*   *   *   *   *   *
Should symptomatology referable to the central nervous system develop following administration, no further immunization with this product should be attempted.
Routine immunization should be postponed or avoided in patients with acute infections, or a personal or family history of neurological disturbances. [Exhibit A to Lederle's Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment on the Issue of Warnings (hereafter, "Lederle's Brief") (emphasis added).]
The package insert specifically warned of convulsions and encephalopathy, and warned that rarely such neurological disorders may be fatal or result in permanent brain damage. Young Charles Percival's injuries have been characterized by plaintiffs as "seizure disorder," "infantile *1064 spasms"[3] and "moderate to severe retardation." Thus the package insert warned of the very injuries suffered by Charles Percival.
Furthermore, Dr. Abbott, the treating physician, testified the warning contained in the package insert was sufficient to apprise her of the adverse reactions to DTP as of 1981. [Exhibit C to Lederle's Brief.]
The warning in the instant case is identical to that in Hurley v. Lederle Laboratories, 651 F.Supp. 993 (E.D.Tex.1986), wherein the court found the warning adequate as a matter of law.
The Hurley court cited with approval Smith v. Wyeth Laboratories, Inc., No. 84-2002, slip op. (S.D.W.Va. August 21, 1986), which dealt with a Wyeth package insert which was virtually identical to the Lederle package insert. The Smith court also found the warning adequate as a matter of law, stating:
The plaintiffs also contend that the defendants are liable because they failed to warn consumers directly or to require doctors to warn their patients of the danger of DTP vaccines. As observed earlier, no such duty exists with regard to manufacturers of prescription drugs. The only duty of such manufacturers is to adequately warn the prescribing physician of the drug's dangerous propensities. Accordingly, the adequacy of the warnings communicated to the physicians prescribing the DTP vaccine must next be considered.
*   *   *   *   *   *
The plaintiff cites no authority for the proposition that a drug manufacturer has a duty to warn prescribing physicians of the rate of adverse reactions. As a practical matter, this would be extremely difficult, perhaps impossible, with respect to a drug like the DTP vaccine which has many possible harmful side effects. Moreover, the warning states "The below-listed serious, and occasionally fatal adverse reactions have been reported...." Thereafter, the warning lists with specificity seven serious reactions, one of which ultimately inflicted the minor plaintiff. The warning also refers the physician to medical resource material further explaining the possible consequences of administering the DTP vaccine. Based upon the foregoing, it is clear that the warning adequately warns of the severity and nature of adverse reactions as a matter of law. The position of the plaintiffs that the defendants should have explained the advantages of a fractionated-cell vaccine in relation to a whole-cell vaccine is untenable. The plaintiffs offer no authority for their argument that a drug manufacturer may be required to represent that other drugs with similar effects are safer. Further, it does not appear that the fractionated-cell vaccine was distributed in the United States at the time that the minor plaintiff was vaccinated.... The warnings were adequate as a matter of law. [Smith, supra, slip op. at 23-25 (citations and footnote omitted.)]
In accordance with the discussion above, this Court finds the warning contained in the package insert dated February 1980 was adequate as a matter of law to apprise purchasing physicians of the risks involved in its vaccine.

D. CONCLUSION
Lederle did not have a duty to warn plaintiffs directly of the risks involved in its vaccine. Rather, Lederle's duty was to warn the prescribing physician, who acts as a learned intermediary.
Lederle's warning contained in the package insert dated February 1980 was adequate as a matter of law to apprise purchasing physicians of the risks involved in its vaccine.
Accordingly, Lederle's motion for partial summary judgment regarding the learned intermediary and sophisticated user rules is hereby GRANTED. Lederle's motion for *1065 partial summary judgment on the adequacy of warnings is hereby GRANTED.
NOTES
[1]  The parties presented oral argument on sixteen defense motions during the November 23, 1987, hearing. Some of the motions, including the two which are the subject of this Order, were taken under advisement. See Order entered November 25, 1987.
[2]  Lederle also urges the position that Dr. Abbott was a "sophisticated user" of the vaccine and therefore Lederle had no duty to warn the plaintiffs directly. Lederle cites Littlehale v. E.I. DuPont de Nemours & Co., 268 F.Supp. 791 (S.D.N. Y.1966) in support of this position. Littlehale dealt with personal injury resulting from an explosion of blasting caps. The court held there was no duty to warn the particular purchaser of the blasting caps because the danger was generally known to the trade or profession which purchased them. The court followed with the conclusion that since there was no duty to warn the purchaser, there could be no duty to warn the purchaser's employee. Id. That fact situation is unlike the situation before this Court.
[3]  "Infantile spasms are a unique form of seizure disorder...." Acardi, Epilepsy in Children, International Review of Child Neurology, 4th Vol. Raven Press, N.Y. (1986) (cited in Lederle's Brief at 9).


19 F.Supp.2d 884 (1998)
Dolores M. ENRIGHT, Plaintiff,
v.
ILLINOIS STATE POLICE, Defendant.
No. 97 C 8688.
United States District Court, N.D. Illinois, Eastern Division.
September 14, 1998.
*885 Gerald A. Goldman, Arthur R. Ehrlich, Jonathan C. Goldman, Goldman & Ehrlich, Chicago, IL, for Dolores M. Enright, plaintiff.
Vanessa Victoria Clohessy, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL, for Illinois State Police, defendant.

MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Plaintiff Dolores M. Enright ("Enright") filed an action for discrimination on the basis of sex (female) and retaliation against the defendant Illinois State Police ("Defendant") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended. Enright claims defendant continually failed to promote her to the position of Master Sergeant while promoting less qualified male candidates. Defendant filed a Fed. R.Civ.P. 12(b)(6) motion to dismiss certain of Enright's claims on the ground that they are time-barred. Both parties have submitted *886 affidavits and other supporting documents for consideration. Therefore, defendant's motion to dismiss will be treated as one for summary judgment pursuant to Rule 56.

STANDARD OF REVIEW
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists, the non-moving party must show, by specific factual allegations, the existence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "A genuine issue of material fact exists if there is sufficient evidence for a jury to return a verdict in favor of the nonmoving party." La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th Cir.1990). While any inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party, only reasonable inferences need to be drawn. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

FACTS
The following facts are uncontested: Enright was hired by Defendant on November 10, 1980. After completing her training at the police academy, Enright became an Illinois State Trooper in March 1981. On July 16, 1985, Enright was promoted to Sergeant. Between February 16, 1988, and November 13, 1993, ten officers were promoted from Sergeant to the rank of Master Sergeant. During this period, Enright consistently applied for promotion, but was denied.
Defendant promotes officers to Master Sergeant by generating a list of eligible candidates and promoting from that list until the promotion period is closed. On July 16, 1987, a promotional list was issued on which Enright ranked among the top ten officers. Four eligible individuals were promoted from that list before the promotion period closed on November 1, 1988. On December 1, 1988, a second promotional list was issued on which Enright was ranked among the top ten officers eligible for promotion. Three eligible officers were promoted from that list before the second promotion period closed on April 1, 1990. On December 11, 1991, a third promotional list was issued on which Enright again ranked in the top ten officers for promotion. Three eligible officers were promoted from that list before the third promotion period closed on November 13, 1993.
On December 14, 1993, Enright filed a charge of sex discrimination with the Equal Employment Opportunity Commission for failure to promote. In March and November 1996, three more people were promoted to the rank of master sergeant. Enright continued to seek and was denied promotion during this period. On April 22, 1997, Enright filed a charge of sex discrimination and retaliation with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission.

DISCUSSION

Statute of Limitations:
Defendant argues that Enright's discrimination claim for conduct prior to February 18, 1993, is time-barred because Enright did not file a complaint with the EEOC until December 14, 1993. In Illinois, a charge of employment discrimination must be filed with the Illinois Department of Human Rights or the Equal Employment Opportunity Commission within 300 days of the discriminatory act. Failure to do so bars litigation over those claims. 42 U.S.C. § 2000e-5(e); Speer v. Rand McNally & Co., 123 F.3d 658, 662 (7th Cir.1997); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th Cir. 1995). Enright concedes that the pre-February 18, 1993, claims exceed the 300 day statute of limitations, but argues that, under the *887 continuing violations doctrine, this conduct can be treated as part of one continuous act.
The continuing violation doctrine allows a plaintiff to seek relief for a time-barred act by linking it with an act that is within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). "[T]he plaintiff may not base her ... suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations." Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996); see also, Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir.1994) ("[T]he purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred"). However, if the plaintiff knew, or "with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed" her, she must sue over the act within the relevant statute of limitations. Jones v. Merchants National Bank & Trust Company of Indianapolis, 42 F.3d 1054 (7th Cir.1994).
There are three scenarios in which the continuing violations doctrine is applicable: (1) cases where the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the `violation' occurred; (2) cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory; and (3) cases in which "the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy." Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir.1982). Enright argues that this third scenario, also known as the "serial violation" theory, applies to defendant's conduct.
The question before this court is whether, in response to defendant's motion for summary judgment, Enright has produced sufficient evidence to establish that there existed a genuine issue of fact whether the defendant's acts were "related closely enough to constitute a continuing violation" or were "merely discrete, isolated, and completed acts which must be regarded as individual violations." Selan, 969 F.2d at 565 (quoting Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983)). Courts consider three factors in determining whether conduct is part of a continuing violation: (1) the subject matter, (2) the frequency, and (3) the degree of permanence. Id. Both parties agree that the alleged acts of discrimination involve the same subject matter: namely, promotion. Enright was denied promotion during each round of promotions, therefore, the frequency requirement appears to be satisfied. The crucial factor is the whether the alleged acts of discrimination had the degree of permanence which should trigger an employee's awareness of and duty to assert her rights. Id.
In Selan, the court held that there was no genuine issue of material fact whether the defendant's actions were part of a continuing violation. Selan, 969 F.2d at 567. The plaintiff alleged two acts of discrimination: a transfer/demotion and then, three years later, removal of privileges. The court considered the subject matter, frequency and permanence of the alleged discrimination and found that "despite the fact that the alleged acts were similar in type, the two-year gap and the permanence of the ... transfer/demotion negates the contention that the acts were continuous or connected." Id.
Similarly, in Jones, the court found that the plaintiff's various promotion denials over a five year period did not constitute a continuing violation. Jones, 42 F.3d at 1058. Jones admitted that she felt, at the time she was denied promotion, that some of the defendant's refusals to promote her were discriminatory. Id. "In addition, each promotion was a discrete decision and each time [the plaintiff] knew, or should have known, that she had not received the promotion and another person had." Id.
*888 Enright asserts that because there appeared to be justifiable reasons for the other promotions and defendant continued to assure her that promotion was imminent, she could not have known that discrimination was occurring until 1993 when the pattern became evident. This reasoning could apply to an indefinite series of employment decisions and effectively would eliminate the 300 day statute of limitations. Each round of promotions was a discrete, isolated and completed act. Selan, 969 F.2d at 565. Enright claims she was just as qualified, if not more, than the male officers who were promoted. This information was available to Enright after the first round of promotions. Moreover, Enright's contention that she failed to realize she was being discriminated against until 1993 is contradicted by the fact that she complained to other officers after each round of promotions and appears to have expressed her intent to file a formal complaint after the first round of promotions. Even with all inferences in favor of the nonmoving party, it is clear that, with the exercise of reasonable diligence, Enright would have known after each round of promotions that she had grounds to claim it was discriminatory. Jones, 42 F.3d 1054.
Alternatively, Enright argues that, even if the pre-February 18, 1993, conduct is not part of a continuing violation, defendant should be equitably estopped from relying on the statute of limitations. Equitable estoppel is appropriate where a plaintiff's untimely filing was the result of "a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir.1986) (quoting Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982)). An employer's attempts to lessen the adverse impact of an employment decision will not as a matter of law serve to toll the limitations period. Id. To have a viable equitable estoppel claim, Enright must show that defendant took "active steps to prevent the plaintiff from suing in time, ... such as by hiding evidence or promising not to plead the statute of limitations." Speer v. Rand McNally & Co., 123 F.3d 658, 663 (7th Cir.1997) (quoting Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir.1995)).
Enright alleges that after the first four sergeants were promoted Master Sergeant Bosco told her, "Don't get upset about not being promoted, things will work out in the long run. If you do anything about it ... you will anger upper management." After another promotion, according to Enright, Lieutenant Maurice Underwood told her, "The timing was not right for you to get promoted." In 1990, after two more sergeants were promoted to master sergeant, Enright alleges that Captain Burke wrote her to say, "What are your chances for the future? No one knows what the future openings will be, or where one will finish on the new list. I think if you are in the top ten your chances are good. Hang in there & keep sick time to a minimum. I think your time will come."
Even with all reasonable inferences drawn in favor of plaintiff, she has not provided sufficient evidence to raise a genuine issue of material fact whether defendant's conduct was improper. Not only do the alleged statements fail to meet the requirement of active steps or deliberate design, but the statements were not made by persons, nor has Enright alleged that they were made by persons, in a position to determine whether or not Enright would be promoted. The reasonable inference from Enright's allegations is that other employees were attempting to alleviate the adverse impact of passing Enright over for promotion to Master Sergeant, rather than attempting to prevent Enright from filing a charge with the EEOC. Mull, 784 F.2d at 292.
Enright's final argument that defendant has waived the statute of limitations defense is close to frivolous. Enright asserts that because defendant never claimed that the pre-1993 conduct was barred during defendant's internal investigation or the EEOC investigation, defendant has waived the statute of limitations defense at trial. Defendant is correct in stating that there is no statutory requirement, or supporting case law, that requires a defendant to raise the statute or limitations defense at the investigation stage *889 in order to preserve the defense at the litigation stage. Defendant is not required to inform Enright of the potential pitfalls in her case.
For the foregoing reasons, defendant's motion for summary judgment on the alleged pre-1993 violations is granted.

Retaliation:
Defendant also moves for summary judgment on Enright's retaliation claim on the ground that she cannot establish the necessary causal connection between her discrimination complaint and her lack of promotion. To show a prima facie case of retaliation, plaintiff must show that: (1) she was engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) there was a causal connection between the statutorily protected expression and the adverse employment action. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989). The parties agree that Enright was engaged in statutorily protected expression when she filed her EEOC complaint, 42 U.S.C. § 2000e-3(a), and that Enright suffered an adverse employment action by not being promoted during the next round of promotions after her complaint was filed. The only issue in dispute is whether Enright can establish a causal connection between her EEOC claim and defendant's failure to promote.
Defendant argues that there is no causal link because there is a gap of more than two years between Enright's discrimination charge and the adverse employment action. At the same time, defendant recognizes that the alleged adverse employment action occurred during the "very next round of promotions." These two position are contradictory. The fact that a new promotional list was not opened until two years after Enright filed her complaint does not create a gap of two years. The delay could just as easily indicate that defendant did not have an opportunity to retaliate until the next round of promotions. Enright alleges that when the first opportunity presented itself, defendant retaliated by denying her promotion.
Even if there was a gap between the EEOC complaint and the adverse employment action, defendant has failed to show why this warrants granting summary judgment. Defendant cites a number of cases to support its position that if enough time has passed between a plaintiff's complaint and the alleged retaliation, then the plaintiff has failed to establish the requisite causal connection. However, the cases cited all involve retaliation claims in which the plaintiff's only evidence of causation was the temporal proximity of the complaint and the adverse action. While the time elapsed between filing the complaint and retaliatory action is a factor in the court's determination, it is not dispositive. In other words, temporal proximity may be sufficient to prove a causal connection, but it is not a necessary condition for a retaliation claim.[1]
In Jean v. Walgreen Co., 887 F.Supp. 1007, the Court held that a nine month gap was "insufficient to show intentional discrimination." 887 F.Supp. at 1013. It does not follow, however, that the existence of a gap necessarily destroys the causal connection. The plaintiff in Jean failed to show a causation in part because nine months had passed before she was terminated, and also because she admitted in a deposition that no one at her place of employment ever mentioned her EEOC claims to her. The only evidence in support of plaintiff's retaliation claim was the proximity of her termination to her complaint. For that reason, the court found the evidence insufficient to establish retaliation. Similarly, in Hughes v. Derwinski, 967 F.2d 1168 (7th Cir.1992), a case also cited by defendant, the court held that where there was a four month gap between plaintiff's filing and disciplinary action, "temporal proximity ... standing by itself, does not sufficiently raise the inference that [plaintiff's] *890 filing was the reason for the adverse action." 967 F.2d at 1174.
Enright alleges that, subsequent to filing her EEOC complaint, defendant "began a program of systematically directing her immediate supervisors to lower her performance ratings ... [making] it harder for her to rate high enough to get onto the eligibility lists." In her affidavit, Enright states that, on two different occasions since 1993, her "immediate supervisors and performance evaluators have told [Enright] that they were directed by upper management to lower [her] performance ratings." (Plaintiff's Affidavit ¶ 5). These allegations, together with the fact that Enright was denied promotion during the next promotional period following her complaint, allow Plaintiff to withstand the summary judgment motion on her retaliation claim.
WHEREFORE, for the foregoing reasons, defendant's motion for summary judgment is granted in part and denied in part.
NOTES
[1]  A substantial time lapse merely "discounts" the causal connection between filing a complaint and adverse employment action. Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1115 (7th Cir.1992). Similarly, in the context of a retaliation claim brought under the American's with Disabilities Act, the Seventh Circuit has held that the time elapsed does not preclude a plaintiff from making out a prima facie case of retaliation, but rather requires that additional proof of a causal nexus be provided. Davidson v. Midcl fort Clinic, Ltd., 133 F.3d 499, 511 (1998).


388 S.C. 282 (2010)
696 S.E.2d 587
Samuel Anthony WILDER, Petitioner,
v.
STATE of South Carolina, Respondent.
No. 26841.
Supreme Court of South Carolina.
Submitted March 17, 2010.
Decided July 26, 2010.
*283 Appellate Defender Robert M. Pachak, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Salley W. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.
PER CURIAM.
Petitioner was convicted of murder and possession of a firearm during the commission of a violent crime and received consecutive sentences of life and five years. He had no direct *284 appeal,[1] and following an evidentiary hearing on his post-conviction relief (PCR) application, the PCR judge found petitioner was entitled to a belated direct appeal. See White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). PCR counsel neglected to timely appeal this PCR order, and this Court issued a writ of certiorari in our original jurisdiction to review this PCR order. Since we find no merit to the direct appeal, we dismiss the writ of certiorari.

FACTS
Petitioner and the victim were married for less than a year when she left him. There was evidence that petitioner's wife was afraid of him. Two days after moving out of the home they shared, the victim was shot dead. She was inside a club when shots were fired, and then patrons, including the victim, ran into the street. Several witnesses testified they observed a man with a gun in the club, and then saw him shoot the victim in the back once they were outside the club. These witnesses were unable to identify petitioner as the armed shooter. Another witness, Terrance Smalls, was inside the club, and did identify petitioner as the shooter. A bartender, Harold Wigfall, also identified petitioner as the man shooting the gun in the club. Witness Smith observed petitioner with the gun in the club, then saw him shoot the victim in the street, stand over her where she fell, and shoot her again. Witness Campbell also identified petitioner as the shooter, as did witness Washington. Moreover, other witnesses were able to identify the automobile in which the shooter fled the scene. When this car was found, it contained fired cartridges matching those found at the scene. The automobile belonged to petitioner.
The State also called as a witness Scennie Murdaugh, an employee of the club where the shooting occurred. Murdaugh, who was working that night, testified and identified petitioner as the person firing the gun. The trial judge refused to allow petitioner to attempt to impeach Murdaugh *285 with nine alleged incidents of preparing false tax returns, holding these alleged prior bad acts were not probative of Murdaugh's credibility under Rule 608(b), SCRE.

ISSUE
Did the trial judge err in holding that allegations of preparing false tax returns are not probative of a witness's truthfulness?

ANALYSIS
Under Rule 608(b)(1), a trial judge may allow a witness to be cross-examined about "specific instances of [that witness's] conduct" if the trial judge, in his discretion, finds these instances probative of the witness's credibility. An abuse of discretion occurs when the trial court's ruling lacks evidentiary support or where it is controlled by an error of law. E.g., State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000). Here, the trial judge committed such an error when he held that preparing false tax returns was not conduct probative of Murdaugh's credibility. Compare In re Hamer, 342 S.C. 437, 537 S.E.2d 552 (2000) (filing false tax returns is a "serious crime" adversely reflecting on a judge's honesty and trustworthiness).
In order for this Court to reverse petitioner's convictions and sentences, however, we must find that the trial court's error prejudiced petitioner. Since Murdaugh was merely one of six eye witnesses to identify petitioner as the shooter, there were other witnesses whose testimony was consistent with that of the identifying witnesses, and physical evidence linked petitioner in the murder, her testimony was merely cumulative to other overwhelming evidence of guilt. As such, reversal is not warranted here. E.g., State v. Simmons, 384 S.C. 145, 682 S.E.2d 19 (Ct.App.2001).

CONCLUSION
The writ of certiorari is
DISMISSED.
NOTES
[1]  Although a direct appeal was filed, it was dismissed on counsel's motion because a post-trial motion was pending in the circuit court. Ultimately, a second direct appeal was begun but not perfected due to petitioner's appointed counsel's delicts.


                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                        No. 17-1327

                 EDWARD WEHRENBERG,
                                Appellant
                         v.

 METROPOLITAN PROPERTY & CASUALTY INSURANCE CO
        ____________________________________

       On Appeal from the United States District Court
          for the Western District of Pennsylvania
           (D.C. Civil Action No. 2-14-cv-01477)
         District Judge: Honorable Mark R. Hornak
        ____________________________________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                  on November 14, 2017

Before: AMBRO and KRAUSE, and RENDELL, Circuit Judges.

            (Opinion filed: November 15, 2017)
                                         OPINION*

KRAUSE, Circuit Judge.

       Appellant Edward Wehrenberg appeals the District Court’s grant of summary

judgment in favor of Appellee Metropolitan Property and Casualty Insurance Company

(“Metropolitan”) on Pennsylvania state law claims for breach of contract and bad faith.

For the following reasons, we will affirm.

I.     Background

       Wehrenberg owned a house that was insured by a homeowners insurance policy

issued by Metropolitan (the “Policy”).

       The Policy provides, in pertinent part:

              We will pay for sudden and accidental direct physical loss or
              damage to the property described in Coverages A and B, except
              as excluded in Section I—LOSSES WE DO NOT COVER
              ...
                       Section I—LOSSES WE DO NOT COVER
              ...
              We do not insure under any coverage for any loss consisting of
              . . . B. defective, inadequate, faulty or unsound . . . 2. design,
              specifications, workmanship, repair, construction, renovation,
              remodeling, grading, compaction[.]

JA 277, 280-281.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
       In October 2011, Wehrenberg leased the property to Alphonso Hyman for a period

of five years starting in November 2011. The lease provided that Hyman could not

“[m]ake changes to the property, such as painting or remodeling, without the written

permission of [Wehrenberg].” JA 462. Despite this prohibition, Hyman proceeded to

renovate the property, hiring a structural engineer in December 2011 and completing

demolition of the house by January 2013.

       In early 2012, Wehrenberg learned that Hyman had stopped making his monthly

rent payments, which were to be paid directly to Wehrenberg’s mortgage company.

Unable to reach Hyman by call or email, Wehrenberg finally visited the property in June

2012, at which point he learned that the house had been “gutted[.]” JA 148. When

Wehrenberg confronted Hyman about this on the phone after the visit, Hyman responded

that the house had major structural problems, which he had decided to fix and which

required him to gut the house, and that he would put the house back together.

       Wehrenberg did not file a claim with Metropolitan at this time. Instead, he

allowed Hyman to continue his work on the property, so long as Hyman promised to get

the mortgage caught up and to get the house put back together as soon as possible. But in

January 2013, Hyman again stopped paying rent. When Wehrenberg was again unable to

reach him, Wehrenberg visited the property and found that the house remained in

disrepair.

       On February 28, 2013—more than eight months after he learned of the

construction—Wehrenberg filed a claim for coverage under the Policy, asserting that the
                                            3
property had been vandalized. After conducting an investigation, Metropolitan denied

the claim for coverage on the basis that the Policy did not cover Wehrenberg’s damage

because it (1) was not “sudden and accidental” and (2) constituted an incomplete

“renovation.” JA 211-223.

       Wehrenberg then filed a complaint in the Western District of Pennsylvania

alleging two counts: one for breach of contract and one for bad faith denial of insurance

coverage. The District Court granted Metropolitan’s motion for summary judgment on

both claims. As to the contract claim, the District Court concluded that the damage to

Wehrenberg’s property was not “sudden” or “accidental,” and even if it were, the damage

fell into many of the excluded categories of coverage under the Policy, including

“repair,” “construction,” “renovation,” and “remodeling.” JA 13. As to the bad faith

claim, the District Court concluded that there was no evidence of bad faith in the record.

This appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332,

and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s grant of summary judgment, Smathers v. Multi–Tool, Inc./Multi–

Plastics, Inc. Emp. Health and Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002), which is

appropriate only if, viewing the facts in the light most favorable to the non-moving party,

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law,” Fed. R. Civ. P. 56(a).
                                              4
III.   Discussion

       A.     Breach of Contract Claim

       Wehrenberg contends that disputes of material fact barred summary judgment as

to the breach of contract claim.1 We disagree. As the insured, Wehrenberg bore “the

burden of proving facts that bring [his] claim within the policy’s affirmative grant of

coverage.” Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir. 1996).

Only if he satisfied that burden did the burden shift to the insurer to “prov[e] the

applicability of any exclusion or limitation on coverage.” Id. Wehrenberg thus cannot

prevail on appeal unless he can make the initial showing of coverage, i.e., that the

damage to the property was “sudden and accidental” within the meaning of the Policy.

       Wehrenberg has failed to make this showing. Pennsylvania courts deem the term

“sudden and accidental” unambiguous, see Techalloy Co., Inc. v. Reliance Ins. Co, 487

A.2d 820, 826-27 (Pa. Super. 1984), and define it to mean, respectively, “abrupt[]” and

“unexpected or unintended.” Lower Paxton Twp. v. U.S. Fidelity & Guar. Co., 557 A.2d

       1
          We reject at the outset Wehrenberg’s argument that Metropolitan is precluded
from asserting affirmative defenses because it failed to plead them with specificity in its
answer. “[A]ffirmative defenses may be raised by motion, at any time (even after trial),
if plaintiffs suffer no prejudice.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 506 (3d
Cir. 2006). Wehrenberg has suffered no prejudice from Metropolitan’s failure to raise its
affirmative defenses in the pleadings. He has been on notice of the defense since he
received a denial of coverage letter from Metropolitan in July 2013, and the defenses
have been before the District Court since the motion to dismiss stage.

                                              5
393, 402 (Pa. Super. 1989); see N. Ins. Co. of New York v. Aardvark Assocs., Inc., 942

F.2d 189, 193 (3d Cir. 1991) (following the Pennsylvania Superior Court’s interpretation

of “sudden and accidental,” and holding that a “sudden and accidental” discharge of

pollution must be “abrupt and last a short time”). Damage that is ongoing typically

cannot be sudden. See Lower Paxton, 557 A.2d at 403 (gas that entered a home

“gradually over time” was not “sudden”); Techalloy, 487 A.2d at 827 (pollution

discharge over a long period of time, even if “sporadic,” was not “sudden”).

      Here, the evidence in the record reflects that the demolition of the property

happened over “a time span of about a month,” a period of time that, as the District Court

observed, cannot itself be considered “abrupt.” But even if the initial physical damage

could be considered “abrupt,”2 the record evidence shows that after Wehrenberg learned

of the damage in June 2012, he authorized Hyman to continue working on the property,

at least to the extent of sheetrock being hung, which Wehrenberg himself then

characterized as “remodeling.” JA 14. Under these circumstances, we cannot say that

the damage to the property was either “sudden” or “accidental,” much less “sudden and

accidental,” as required under the Policy. 3 Accordingly, Wehrenberg’s breach of

      2
        Wehrenberg argues that the Court should consider whether the damage to the
property was “sudden and accidental” from his subjective perspective. However, he cites
no authority in support of his argument, and we are not aware of Pennsylvania case law
that would support that proposition.
      3
         Because the term “sudden and accidental” is conjunctive, the District Court’s
finding that the damage was not “sudden” is a sufficient basis on which to affirm. See
Ogden Corp v. Travelers Indem. Co., 924 F.2d 39, 42 (2d Cir. 1991) (construing the term
                                           6
contract claim was properly dismissed.4

       B.     Bad Faith Claim

       Wehrenberg argues that Metropolitan acted in bad faith by refusing to cover the

claim and by failing to adequately investigate it. We agree with the District Court that

this claim has no merit. Generally, there can be no bad faith claim for denial of coverage

if the insurer was correct as a matter of law in denying coverage. Frog, Switch & Mfg.

Co., Inc. v. Travelers Ins. Co.,193 F.3d 742, 751 n.9 (3d Cir. 1999). Thus, as we agree

with the District Court that Wehrenberg’s breach of contract claim was meritless, so too

was his bad faith claim.

       Nor can Wehrenberg’s bad faith claim stand independently based on

“sudden and accidental” and holding that “[b]ecause the complaint cannot be interpreted
under New York law to contain an allegation of sudden contamination, it is unnecessary
to analyze the allegations for the purpose of determining whether the conduct of
Appellants falls within the meaning of ‘accidental’”). However, the District Court
properly concluded that the damage to the property was also not “accidental” because
“the demolition and construction that Hyman performed was carefully planned” by
Hyman, such that it could not be considered “unintended” by him. JA 11.
       4
         We recognize that if Wehrenberg had satisfied his burden of establishing
coverage under the Policy, the burden would have shifted to Metropolitan to “establish[]
the applicability of an exclusion [under the Policy].” Nationwide Mut. Ins. Co. v.
Cosenza, 258 F.3d 197, 206 (3d Cir. 2001) (internal citations omitted). He would then
have faced an uphill battle in arguing that “renovation” became “vandalism” within the
meaning of the Policy simply because that renovation was prohibited under
Wehrenberg’s separate residential lease contract with Hyman; indeed, if anything, his
argument supports a claim against Hyman for breach of that lease, not a change to the
characterization of the property damage. Because we affirm the District Court’s finding
that Wehrenberg failed to satisfy his burden, however, we need not engage Wehrenberg’s
argument that the District Court erred in finding the “renovation” exclusion applicable.
                                              7
Metropolitan’s failure to investigate the claim before denying it. Rancosky v. Wash. Nat’l

Ins. Co., 130 A.3d 79, 94 (Pa. Super. 2015) (“Bad faith conduct includes lack of good

faith investigation into the facts”). The record evidence clearly establishes that

Metropolitan appropriately investigated Wehrenberg’s claim before determining that it

was not covered under the Policy, inter alia, by hiring a private investigator to investigate

the claim and to interview Wehrenberg and Hyman, by sending a Metropolitan field

adjuster, and by setting forth the reasons for denial in a formal coverage opinion.

IV.    Conclusion

       For the above-stated reasons, we will affirm the judgment of the District Court.

                                             8


                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        Nos. 10-10295 and 10-10299

              Plaintiff - Appellant/             D.C. No. 1:09-cr-00271-OWW
              Cross-Appellee,

  v.                                             MEMORANDUM *

HERIBERTO SICAIROS-QUINTERO,

              Defendant - Appellee/
              Cross-Appellant.

                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                       Argued and Submitted July 17, 2012
                            San Francisco, California

Before:       TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

       Following a jury trial, Heriberto Sicairos-Quintero was convicted of

manufacturing and aiding and abetting the manufacture of marijuana, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and of carrying a firearm during and in

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The

district court imposed a 120-month sentence for the drug offense, and a concurrent

60-month sentence for the firearm offense. The government appeals the sentence,

and Sicairos-Quintero cross-appeals his conviction. We have jurisdiction under 18

U.S.C. § 3742(b) and 28 U.S.C. § 1291. We affirm the conviction, vacate the

sentence, and remand for resentencing.

      Sicairos-Quintero first contends that there was insufficient evidence that he

knew or could reasonably foresee that there were 1,000 or more marijuana plants

being manufactured. The parties stipulated that there were 7,143 marijuana plants

being manufactured, and Sicairos-Quintero testified at trial that he spent 25 days

living at the grow site, and that he would enter the marijuana garden to provide

cigarettes to the workers. The two arresting officers testified that it was

immediately obvious to them that there were thousands of plants at the site.

Viewing the evidence in a light most favorable to the prosecution, a rational trier of

fact could have found beyond a reasonable doubt that Sicairos-Quintero knew or

could reasonably foresee that there were 1,000 or more marijuana plants being

manufactured. See United States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011).

      Sicairos-Quintero also contends that there was insufficient evidence that he

carried a firearm during and in relation to a drug trafficking crime. Officers

                                           2                           10-10295 & 10-10299
arrested Sicairos-Quintero approximately 50 yards from an active marijuana

garden and discovered a loaded pistol in his waistband. Viewing the evidence in a

light most favorable to the prosecution, a rational trier of fact could have found

beyond a reasonable doubt that Sicairos-Quintero was protecting the grow site and

thus carried the firearm in relation to a drug trafficking offense. See Shetler, 665

F.3d at 1163; United States v. Arreola, 467 F.3d 1153, 1160 (9th Cir. 2006)

(carrying of a firearm relates to the underlying drug offense where it facilitates the

crime). We accordingly affirm Sicairos-Quintero’s conviction.

      As Sicairos-Quintero concedes, in light of the Supreme Court’s recent

decision in Abbott v. United States, a district court is required to impose a

consecutive mandatory minimum sentence for a section 924(c) conviction. See

131 S. Ct. 18, 23 (2010) (“[A] defendant is subject to a mandatory, consecutive

sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of

receiving a higher mandatory minimum on a different count of conviction.”).

Accordingly, we vacate Sicairos-Quintero’s sentence and remand for resentencing,

because the district court ordered the sentence for Sicairos-Quintero’s section

924(c) conviction to run concurrently with the sentence for his drug offense.

      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

for resentencing.

                                           3                           10-10295 & 10-10299


                                 Cite as 2013 Ark. App. 440

                ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                      No.CV-12-953

                                                 Opinion Delivered   August 28, 2013

LORI ERWIN                                       APPEAL FROM THE SCOTT
                              APPELLANT          COUNTY CIRCUIT COURT
                                                 [NO. CV-2010-34]
V.

                                                 HONORABLE DAVID H.
SHELBY LEE FROST, INDIVIDUALLY                   MCCORMICK, JUDGE
AND AS TRUSTEE OF THE DONALD
ROSS AND SHELBY LEE FROST
REVOCABLE LIVING TRUST
                       APPELLEE                  REBRIEFING ORDERED

                          BRANDON J. HARRISON, Judge

       Lori Erwin filed a complaint seeking to have a trust created by her late father and her

stepmother declared irrevocable. The circuit court denied the request, and Erwin appealed

that denial. We will not yet decide this appeal’s merits because we must order rebriefing.

There are two main hang-ups.           One is Erwin’s abstract, which is presented in

question-and-answer format; Arkansas Supreme Court Rule 4-2(a)(5)(B) (2012) expressly

forbids this. Second, Erwin’s addendum contains the entire transcript of the proceedings

below; Rule 4-2(a)(8) forbids that. An abstract and addendum can be deficient for containing

too much material, as well as too little. Am. Transp. Corp. v. Exch. Capital Corp., 84 Ark.

App. 28, 129 S.W.3d 312 (2003). Though an addendum’s particular contents are often a

matter of judgment that poses no problem, we have expressly warned that
                                  Cite as 2013 Ark. App. 440

“[t]ranscripts—whether of testimony at trial or on deposition or of hearings—must be

converted into an impartial first-person narrative in the abstract. Transcripts should not be

in the addendum.” Lackey v. Mays, 100 Ark. App. 386, 389, 269 S.W.3d 397, 399 (2007).

       Erwin has fifteen days from this opinion’s date to file a substituted brief that complies

with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). We strongly encourage Erwin to review the

rules and ensure that no other deficiencies exist. A subsequent failure to timely correct all

deficiencies in her appellant’s brief may result in the circuit court’s judgment being summarily

affirmed. See Ark. Sup. Ct. R. 4-2(c)(2). After Erwin has served her substituted appellant’s

brief on Appellee Frost, then Frost may revise or supplement her appellee’s brief if need be.

       Rebriefing ordered.

       GLADWIN, C.J., and WALMSLEY, J., agree.

       Hatfield & Sayre, by: Christopher D. Brockett and Eugene G. Sayre, for appellant.

       Walters, Gaston, Allison & Parker, by: Troy Gaston, for appellee.

                                               2


905 F.2d 1542
U.S.v.Mutter***
NO. 88-8859
United States Court of Appeals,Eleventh Circuit.
MAY 29, 1990

1
Appeal From:  N.D.Ga.

2
AFFIRMED.

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

**
 Local Rule 36 case


534 S.E.2d 132 (2000)
243 Ga. App. 673
BURGE
v.
The STATE.
No. A00A0618.
Court of Appeals of Georgia.
April 20, 2000.
William H. Newton III, Rome, for appellant.
Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.
PHIPPS, Judge.
Henry Burge appeals his convictions for obstruction of an officer and riot in a penal institution. He challenges the sufficiency of the evidence to support the jury's verdict. After review of the record, we find the evidence was sufficient to support the verdict, and we affirm Burge's convictions.
Viewing the evidence in the light most favorable to the verdict, the jury was authorized to find that the following occurred. On *133 April 2, 1998, Burge was lawfully incarcerated at the Floyd County Jail. His uncle, Anthony Burge, was also an inmate in the same cellblock. Anthony Burge became involved in an altercation with other inmates in a cell on the lower level of the cellblock. After breaking up the fight, officers ordered Anthony Burge to go to his cell on the second level and gather his belongings because he was going to be removed to isolation. Before Anthony Burge left the second level, Henry Burge exited his cell on that level and angrily charged down the stairs. Sergeant Billy Null met him on the stairs and twice instructed him to go back to his cell. Burge refused to comply, and Null told him to go and gather his possessions, because he too was going to be placed in isolation. Burge then began yelling curses and threats at Null, pointing his finger in Null's face and making fists. While Null was attempting to restrain him, Burge either "lunged at" or pushed Null. They fell down the stairs to the floor. On the floor, Burge began swinging at Null, and three officers pulled Burge off Null and wrestled with him before they were able to restrain him. Null suffered a broken finger in the encounter.
"Whoever knowingly and willfully resists, obstructs or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer" commits the felony of obstruction of an officer.[1] "Any person legally confined to any penal institution of this state or of any political subdivision of this state ... who commits an unlawful act of violence or any other act in a violent or tumultuous manner commits the offense of riot in a penal institution."[2]
On appeal, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. In evaluating the sufficiency of the evidence, the relevant question is whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[3]
Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that Burge committed the offenses of obstruction of an officer and riot in a penal institution. Accordingly, we affirm the convictions.
Judgment affirmed.
JOHNSON, C.J., and McMURRAY, Senior Appellate Judge, concur.
NOTES
[1]  OCGA § 16-10-24(b).
[2]  OCGA § 16-10-56(a).
[3]  (Citations, punctuation, and emphasis omitted.) Johnson v. State, 239 Ga.App. 886, 522 S.E.2d 478 (1999).


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 01-7236

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

WILLIE DAVID BROWN,

                                             Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-93-264-P, CA-01-348-3-V)

Submitted:   December 20, 2001          Decided:    December 28, 2001

Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Willie David Brown, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Willie David Brown appeals the district court’s order denying

his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001).    We

have reviewed the record and the district court’s opinion and find

no reversible error.   Accordingly, we deny a certificate of ap-

pealability and dismiss the appeal on the reasoning of the district

court. See United States v. Brown, Nos. CR-93-264-P; CA-01-348-3-V

(W.D.N.C. filed July 3, 2001; entered July 9, 2001).    We further

deny Brown’s motion for the appointment of counsel.    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.

                                                         DISMISSED

                                2


[Cite as State v. Blair, 2012-Ohio-1847.]

          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.     24784

v.                                                      :            T.C. NO.     11 CRB 773

JEREMY L. BLAIR                                         :            (Criminal appeal from
                                                                      Municipal Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                          Rendered on the        27th       day of        April     , 2012.

                                            ..........

ROBERT B. COUGHLIN, Atty. Reg. No. 0003449, 6111 Taylorsville Road, Huber Heights,
Ohio 45424
      Attorney for Plaintiff-Appellee

KATHRYN L. BOWLING, Atty. Reg. No. 0084442, 111 W. First Street, Suite 518, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Following a bench trial, Jeremy Blair was found guilty of disorderly
                                                                               2

conduct, in violation of R.C. 2917.11(A)(2), and of resisting arrest, in violation of R.C.

2921.33(A). On the charge of disorderly conduct, he was fined $150, with $100 suspended.

On the charge of resisting arrest, he was sentenced to thirty days in jail, with twenty days

suspended, and he was fined $250, with $200 suspended. He appeals from his conviction.

He sought a stay of execution of his sentence in the trial court, but his request was denied.1

         {¶ 2}         The State presented the following evidence about the bases for the charges

against Blair. Blair’s actions will be discussed in greater detail under the assignment of

error.

         {¶ 3}         On May 28, 2011, Blair was involved in an altercation with Chris Lewis, at

the home of Lewis’s family on Mill Ridge Road in Huber Heights. When police officers

arrived, Blair berated them and Lewis’s family with abusive language and insults for thirty

minutes to an hour, while the officers repeatedly attempted to calm him down. One of the

officers eventually decided to arrest Blair, and Blair resisted arrest by struggling with the

officer. Blair was cited for disorderly conduct and resisting arrest.

         {¶ 4}         At trial, Lewis’s brother and two police officers testified for the State; the

defense did not call any witnesses. Blair made a Crim.R. 29(A) motion for acquittal on

both charges at the close of the State’s case, which was overruled. Blair was found guilty

on both charges and sentenced as described above.

         {¶ 5}         Blair raises one assignment of error on appeal, which states:

         THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

             1
             Blair’s request for a stay demonstrates that he did not voluntarily serve his sentence and, therefore, that his appeal is
   not moot due to voluntary satisfaction of the judgment. See Lammers v. Caltrider, 2d Dist. Montgomery No. 21565,
   2007-Ohio-1745, ¶ 5, citing State v. Miller, 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 18.
                                                                               3

       FOR A RULE 29 ACQUITTAL, AS THE STATE FAILED TO SHOW

       THAT THE ARREST WHICH APPELLANT “RESISTED” WAS A

       LAWFUL ARREST.

       {¶ 6}     Blair contends that his arrest for resisting arrest was unlawful because his

behavior did not constitute disorderly conduct and, as such, the officers did not have a lawful

basis to arrest him. He also claims that his Crim.R. 29 motion for acquittal should have

been granted.

       {¶ 7}     When reviewing the denial of a Crim.R. 29(A) motion, an appellate court

applies the same standard as is used to review a sufficiency of the evidence claim. State v.

Thaler, 2d Dist. Montgomery No. 22578, 2008-Ohio-5525, ¶ 14. “A sufficiency of the

evidence argument disputes whether the State has presented adequate evidence on each

element of the offense to allow the case to go to the jury or sustain the verdict as a matter of

law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State

v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). When

reviewing whether the State has presented sufficient evidence to support a conviction, the

relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light

most favorable to the State, could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096

(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could not

reach the conclusion reached by the trier-of-fact.” Id.

       {¶ 8}     Resisting arrest is defined at R.C. 2921.33(A), which states that “[n]o

person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or
                                                                               4

another.”   “Although the arrest must be ‘lawful,’ it is not necessary for the state to prove

that the defendant was in fact guilty of the offense for which the arrest was made to uphold a

conviction for resisting arrest. State v. Hurst, 1st Dist. Hamilton No. C-880706, 1989 WL

140010 (Nov. 22, 1989). An arrest is ‘lawful’ if the surrounding circumstances would give

a reasonable police officer cause to believe that an offense has been or is being committed.

Id.; Parma Heights v. Kaplan, 8th Dist. Cuyahoga No. 55108, 1989 WL 30584 (Mar. 30,

1989).” State v. Sansalone, 71 Ohio App.3d 284, 285-286, 593 N.E.2d 390 (1st Dist.1991).

       {¶ 9}     The citation charged Blair with disorderly conduct in violation of R.C.

2917.11(A)(2), which states: “No person shall recklessly cause inconvenience, annoyance, or

alarm to another by * * * making unreasonable noise or an offensively coarse utterance,

gesture, or display or communicating unwarranted and grossly abusive language to any

person.”    The disorderly conduct statute has long been interpreted to require that a

reasonable person “would find the defendant’s ‘language and conduct annoying or alarming

and would be provoked to want to respond violently.’” (Internal citations omitted.) Gessner

v. Schroeder, 2d Dist. Montgomery No. 21498, 2007-Ohio-570, ¶ 38, citing Warren v.

Patrone, 74 Ohio App.3d 595, 600 N.E.2d 344 (11th Dist.1991).             See, also, State v.

Hoffman, 57 Ohio St.2d 129, 387 N.E.2d 239 (1979); State v. Glenn, 1st Dist. Hamiltion

No. C-030356, 2004-Ohio-1489, ¶ 25. The test is objective and focuses on whether, under

the circumstances, it is probable that a reasonable person would find the accused’s language

and conduct annoying or alarming and would be provoked to want to respond violently; a

person need not actually be provoked to a violent response. Sansalone at 286.
                                                                               5

       {¶ 10}       Blair contends that his arrest was unlawful for two reasons: 1) the officers

were not provoked to respond violently toward him and did not feel threatened by him, and

thus were unjustified in arresting him, and 2) arrest was not permitted for this offense

because it was a minor misdemeanor.

       {¶ 11}      Huber Heights Police Officers Scott Short and Robert Bluma testified for

the State. They responded to a house on Mill Ridge Road on the night of May 28, 2011,

due to a report of a “disorderly subject at the residence.”                               Upon investigation, they

discovered that Blair had been involved in a physical and verbal altercation with his friend,

Chris Lewis, whose family lived at the residence. Blair had called the police. Both Lewis

and Blair had been drinking, and Lewis left the home before the officers arrived. Blair was

cursing loudly and disruptively.

       {¶ 12}      The officers attempted to calm Blair for thirty minutes to an hour; Blair

would appear to calm down, but then become agitated again. Blair was “belligerent and

disorderly” during this period, calling the officers “f***ing pigs”2 who did not know how to

do “their f***ing jobs,” and claiming that the laws of Montgomery County did not apply to

him because he lived elsewhere. Blair was also cursing at Lewis’s family members, who

were sitting outside their home. Blair told the officers that he was waiting for a ride from

someone who was coming from Washington Courthouse, so the officers “tried to be

patient,” but the owners of the home wanted Blair off of their property and the officers had

other calls waiting, including some priority calls. According to the officers’ testimony,

Blair was arrested because he continued to curse after the officers had repeatedly asked him

          2
           We have modified some of the offensive language contained in the transcript.
                                                                               6

to stop, and because he intended to walk to Rite Aid, despite the officers’ instructions that he

should wait for his ride at his current location, since he was too intoxicated “to walk on his

own.”

        {¶ 13}    Although the officers found Blair’s conduct annoying and unpleasant, they

testified that they did not feel threatened by him and that tolerating such behavior was part of

their job. Sean Lewis, Chris’s brother, also testified that Blair was yelling in a loud voice

and cursing for approximately half an hour.

        {¶ 14}    The officers asked Blair to step off of the Lewises’ property while he

waited for his ride. As they were preparing to clear the call and leave, Blair again started to

yell at them and call them names. Officer Scott also testified that Blair wanted to walk to a

Rite-Aid, which he was in no condition to safely accomplish because of his intoxication.

Officer Bluma decided to arrest Blair. It is undisputed that Blair struggled with Bluma and

resisted his arrest.

        {¶ 15}    Blair contends that his arrest was unlawful, and therefore he did not resist a

lawful arrest. However, the officers’ testimony, which was unrefuted, established that Blair

had, at the very least, recklessly caused inconvenience and annoyance to the officers and his

friend’s family members by making “unreasonable noise” or “offensively coarse

utterance[s]” over an extended period of time. Because of the length and nature of Blair’s

diatribe, directed at both the officers and the residents, and the fact that Blair had no safe

means of leaving the premises, the officers could have reasonably concluded that Blair’s

conduct and language would provoke someone to respond violently if it were allowed to

continue and that it was lawful to arrest him. Further, the statute does not require that the
                                                                               7

officers were actually provoked to violence, but that a reasonable person would be provoked.

 Sansalone, 71 Ohio App.3d 284, 286, 593 N.E.2d 390. In other words, there was evidence

from which a rational factfinder could have concluded that Blair had engaged in disorderly

conduct. His Crim.R. 29 motion for acquittal was properly denied.

         {¶ 16}        Moreover, under the circumstances presented, Blair’s arrest for disorderly

conduct was justified, even though the offense is, in many circumstances, a minor

misdemeanor for which a citation is issued. See R.C. 2917.11(E)(2); R.C. 2935.26. R.C.

2917.11(E)(3)(a) provides that disorderly conduct is a misdemeanor of the fourth degree if

the “offender persists in disorderly conduct after reasonable warning or request to desist.”

The officers testified that, over the course of thirty minutes to an hour, they had repeatedly

instructed Blair to stop his abusive and disruptive behavior.                                  The officers could have

reasonably concluded that they were permitted to arrest Blair for his failure to desist because

his offense was a misdemeanor of the fourth degree, rather than a minor misdemeanor.3

Thus, the arrest was lawful as that term is used in the resisting arrest statute.

         {¶ 17}        Further, R.C. 2935.26 states that a person may be arrested, rather than

issued a citation, for a minor misdemeanor if the offender “is unable to provide for his own

safety.” Officer Scott testified that Blair was intoxicated, that Blair was attempting to leave

the scene to walk to a Rite-Aid store, and that he would have been unable to complete such a

walk safely. This testimony justified Blair’s arrest, even if his conduct were classified as a

minor misdemeanor.

             3
              Neither the citation nor the probable cause determination sets forth the degree of the disorderly conduct offense,
   although the narrative report stated that Blair “did persist using loudly vulgar language in public after multiple warnings.” The
   termination entry refers to it as a minor misdemeanor.
                                                                               8

       {¶ 18}    We have concluded that Blair’s arrest was not an unlawful arrest, and he

has asserted no other bases to challenge his conviction for resisting arrest.

       {¶ 19}    The assignment of error is overruled.

       {¶ 20}    The judgment of the trial court will be affirmed.

                                          ..........

HALL, J. and FISCHER, J., concur.

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Robert B. Coughlin
Kathryn L. Bowling
Hon. James D. Piergies


                         T.C. Memo. 2005-231

                       UNITED STATES TAX COURT

                CAREY K. PARKER II, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

     Docket No. 8214-04L.               Filed October 3, 2005.

     Carey K. Parker II, pro se.

     Marty J. Dama, for respondent.

                         MEMORANDUM OPINION

     VASQUEZ, Judge:    Respondent sent petitioner a Decision

Letter Concerning Equivalent Hearing Under Section 6320 and/or

63301 for 1994, 1995, 1996, and 1997.   The issue for decision is

whether the Court lacks jurisdiction under section 6330(d)(1)

with regard to the years in issue.

     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code.
                                - 2 -

Background

     At the time he filed the petition, petitioner resided in

Arlington, Texas.   Since at least 2000, petitioner has resided in

a private residence at 6411 Shorewood Drive, Arlington, Texas,

76016-2540117 (Shorewood address).

     Petitioner failed to file income tax returns for 1994, 1995,

1996, and 1997.   On October 22, 1996, respondent assessed

petitioner’s tax liability (including penalties and interest) for

1994, and on December 10, 2001, respondent assessed petitioner’s

tax liabilities (including penalties and interest) for 1995,

1996, and 1997.

     On September 2, 2003, respondent mailed petitioner a notice

of intent to levy and right to a section 6330 hearing for 1994,

1995, 1996, and 1997 at the Shorewood address (hearing notice).

     After receiving no response to the hearing notice, on

November 10, 2003, respondent mailed petitioner a Final Notice

Before Levy on Social Security Benefits.   As of November 10,

2003, petitioner owed taxes, penalties, and interest totaling

$42,272.55, $42,698.46, $40,945.03, and $33,522.46 for 1994,

1995, 1996, and 1997, respectively.

     On December 7, 2003, petitioner mailed respondent a Form

12153, Request for a Collection Due Process Hearing (dated

December 6, 2003) for 1994, 1995, 1996, and 1997 (hearing

request).    Petitioner attached to the hearing request a 10-page
                                - 3 -

explanation of disagreement containing frivolous and groundless

arguments, including that he could not find any statute making

him liable for the taxes in issue and that he has no liability

for “income taxes”.

     On March 22, 2004, respondent mailed petitioner a letter

advising petitioner that respondent had received petitioner’s

hearing request and that the issues and arguments he raised in

his hearing request are of the kind that courts have determined

are frivolous or groundless.    In this letter, respondent directed

petitioner to a document entitled “The Truth About Frivolous Tax

Arguments” and a link to an IRS Web site containing this

document.   Respondent scheduled a telephonic hearing for April 8,

2004, at 1 p.m.    The letter further advised petitioner that if

the Appeals Office did not receive any further information from

petitioner or petitioner was not available when called for the

scheduled hearing, his case would be reviewed based on the

information in petitioner’s file.

     On April 7, 2004, in response to respondent’s March 22,

2004, letter, a letter was mailed to respondent demanding a face-

to-face hearing.    In the April 7, 2004, letter, petitioner did

not list any spousal defenses or collection alternatives, and he

did not list any nonfrivolous arguments regarding the

appropriateness of collection actions or his underlying tax

liabilities.
                                - 4 -

     On April 13, 2004, respondent issued to petitioner the

decision letter.   The decision letter advised petitioner that

respondent reviewed the proposed collection action for 1994,

1995, 1996, and 1997 and that petitioner received an equivalent

hearing because he did not file a request for a section 6330

hearing within the time prescribed under section 6320 and/or 6330

in order to receive a section 6330 hearing.   The decision letter

further stated that petitioner did not raise any issues that were

relevant to paying his tax liability but that petitioner raised

only frivolous issues.   The decision letter also stated that

petitioner had no right to dispute the decision of the Appeals

officer in court, cited Pierson v. Commissioner, 115 T.C. 576

(2000), to petitioner, and warned petitioner that if he appealed

the decision letter to the Tax Court, the Court is empowered to

impose sanctions up to $25,000 for instituting or maintaining an

action primarily for delay or taking a position that is frivolous

or groundless.

     Petitioner petitioned the Court to dispute the decision

letter.   Respondent filed a motion to dismiss for lack of

jurisdiction.    Petitioner filed a response to respondent’s motion

to dismiss for lack of jurisdiction.    Respondent filed a response

to petitioner’s response to respondent’s motion to dismiss for

lack of jurisdiction.
                               - 5 -

      The Court held a hearing on respondent’s motion to dismiss

for lack of jurisdiction.   At calendar call, respondent filed an

amendment to motion to dismiss for lack of jurisdiction.

Discussion

I.   Decision Letter

      Petitioner argues that respondent did not send him the

hearing notice as required by section 6330(a), that the first

collection notice he received was the Final Notice Before Levy on

Social Security Benefits, that he timely filed a hearing request

from the Final Notice Before Levy on Social Security Benefits,

that the decision letter is the functional equivalent of a notice

of determination, and accordingly that the Court has jurisdiction

over this case pursuant to section 6330.

      Respondent submitted a document entitled “CDP Certified Mail

System Research” printed from respondent’s “CDP Certified Mail

Web Site” (Web site certified mail document).   Respondent

submitted the Web site certified mail document because respondent

initially had difficulty obtaining a hard copy of the certified

mail list.   The certified mail list was issued from the Memphis

Service Center, which no longer processes section 6330 cases, and

many section 6330 records issued from the Memphis Service Center

have been placed in storage.   Respondent created the Web site

certified mail document by inputting into respondent’s computer

system the information contained in the certified mail list
                               - 6 -

before the certified mail list was placed in storage.    The Web

site certified mail document lists:    (1) Certified mail number

7107 3514 6973 1734 2376; (2) petitioner’s name and Social

Security number; (3) a letter dated September 1, 2003, that was

mailed to petitioner for 1994, 1995, 1996, and 1997; (4) a code

indicating that the mailing was a notice of intent to levy and

right to a hearing; and (5) that it was mailed to “ARLINGTON TX

76016-2540117.”

     A few days before calendar call, respondent received a copy

of the certified mail list.   Respondent submitted a copy of the

certified mail list to the Court and provided a copy to

petitioner.   The certified mail list lists certified mail number

7107 3514 6973 1734 2376; petitioner’s name and Social Security

number; the mailing was mailed to the Shorewood address; and a

postmark dated September 2, 2003, from “Memphis, TN USPS 38101”.

     Additionally, respondent submitted petitioner’s individual

master file literal transcripts of account for 1994, 1995, 1996,

and 1997.   The transcripts of account for each year indicate that

petitioner was issued an “Intent to levy collection due process

notice levy notice” dated September 1, 2003.    The transcripts of

account contain the same code number next to the “Intent to levy

collection due process notice levy notice” as is listed on the

Web site certified mail document.
                                - 7 -

     Respondent relies on the Web site certified mail document,

the certified mail list, and the literal transcripts to establish

that on September 2, 2003, petitioner was mailed, via certified

mail, a hearing notice for 1994, 1995, 1996, and 1997 to the

Shorewood address.    Petitioner admitted that the address listed

on the Web site certified mail document and certified mail list

is, and was in September 2003, his correct address.       The Web site

certified mail document, the certified mail list, and the literal

transcripts are consistent and corroborate that respondent mailed

petitioner, via certified mail, the hearing notice no later than

September 2, 2003.

     Petitioner claims that he did not receive the hearing

notice.    Petitioner’s testimony is inconsistent with the

documentary evidence in the record.      Orum v. Commissioner, 123

T.C. 1, 9 (2004), affd. on other grounds 412 F.3d 819 (7th Cir.

2005).    The Court is not required to accept petitioner’s

unsubstantiated testimony.    See Wood v. Commissioner, 338 F.2d

602, 605 (9th Cir. 1964), affg. 41 T.C. 593 (1964).       The Court

need not accept at face value a witness’s testimony that is self-

interested or otherwise questionable.     See Archer v.

Commissioner, 227 F.2d 270, 273 (5th Cir. 1955), affg. a

Memorandum Opinion of this Court; Weiss v. Commissioner, 221 F.2d

152, 156 (8th Cir. 1955), affg. T.C. Memo. 1954-51; Schroeder v.

Commissioner, T.C. Memo. 1986-467.      After observing petitioner’s
                                 - 8 -

demeanor at trial, we find his testimony on this point not to be

credible.   See Orum v. Commissioner, supra at 9.

     Accordingly, we find that on September 2, 2003, respondent

mailed petitioner the hearing notice for 1994, 1995, 1996, and

1997 to petitioner’s last known address, that petitioner received

it in due course, and that petitioner failed to file a timely

request for an Appeals Office hearing pursuant to section

6330(a)(2) and (3)(B) and (b).

     A decision letter is not a determination letter pursuant to

section 6320 or 6330.   See Orum v. Commissioner, supra at 7-12;

Kennedy v. Commissioner, 116 T.C. 255, 263 (2001); Offiler v.

Commissioner, 114 T.C. 492, 495 (2000).   Respondent did not issue

a determination letter to petitioner sufficient to invoke the

Court’s jurisdiction to review the hearing notice for 1994, 1995,

1996, and 1997.   Orum v. Commissioner, supra; Kennedy v.

Commissioner, supra.    Accordingly, we shall dismiss the petition

for lack of jurisdiction on the ground that respondent did not

make a determination pursuant to section 6330 regarding the

hearing notice for 1994, 1995, 1996, and 1997 because petitioner

failed to file a timely request for an Appeals Office hearing

pursuant to section 6330(a)(2) and (3)(B) and (b).    Orum v.

Commissioner, supra; Kennedy v. Commissioner, supra.
                               - 9 -

II.   Section 6673

      Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay.   A position maintained by the taxpayer is “frivolous”

where “it is contrary to established law and unsupported by a

reasoned, colorable argument for change in the law.”     Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

      Petitioner’s petition is replete with tax-protester

rhetoric.   Petitioner has advanced shopworn arguments

characteristic of tax-protester rhetoric that has been

universally rejected by this and other courts.   Wilcox v.

Commissioner, 848 F.2d 1007 (9th Cir. 1988), affg. T.C. Memo.

1987-225; Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir.

1986).

      Additionally, it is obvious to the Court that petitioner

litigated this case primarily for delay.   Petitioner was advised

of our opinion in Pierson v. Commissioner, supra, and that he

could not litigate respondent’s decision in court.
                              - 10 -

     We conclude that petitioner’s position was frivolous and

groundless and that petitioner instituted and maintained these

proceedings primarily for delay.   Petitioner was duly warned that

his arguments were frivolous and groundless, that his case was

not appealable to the Court, and of the potential consequences of

his actions.   Accordingly, pursuant to section 6673(a), we hold

petitioner is liable for a $1,000 penalty.

     To reflect the foregoing,

                                         An appropriate order and

                                    order of dismissal will be

                                    entered.