693 F.Supp. 1183 (1988)
NISSAN MOTOR MFG. CORP., U.S.A., Plaintiff,
v.
UNITED STATES, Defendant.
No. 87-01-00051.
United States Court of International Trade.
August 16, 1988.
*1184 Sharretts, Paley, Carter & Blauvelt, P.C., Gail T. Cumins and Ned H. Marshak, New York City, for plaintiff.
John R. Bolton, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, U.S. Dept. of Justice, Michael P. Maxwell, New York City, for defendant.
DiCARLO, Judge:
Cross-motions for summary judgment, made pursuant to Rule 56 of the Rules of this Court, frame the question of whether machinery imported to produce merchandise in a foreign trade zone subzone should be subject to duty. Nissan Motor Manufacturing Corporation U.S.A. (Nissan) moves for summary judgment requiring the United States Customs Service (Customs) to reliquidate entries of production machinery and related capital equipment and refund over $3,000,000 in duties. The United States moves for summary judgment affirming Customs' assessment of duties.
The Court finds from its review of the Foreign Trade Zones Act and the relevant legislative history that machinery and related capital equipment imported to produce merchandise in a foreign trade zone subzone are subject to duty. Defendant's motion for summary judgment is granted; Nissan's motion for summary judgment is denied.

BACKGROUND
A foreign trade zone is "an isolated, enclosed and policed area, operated as a public utility, in or adjacent to a port of entry, furnished with facilities for loading, unloading, handling, storing, manipulating, manufacturing, and exhibiting goods, and for reshipping them by land, water, or air." 15 C.F.R. § 400.101 (1988). Among other benefits, foreign trade zones often permit an importer to lessen its liability for duties or avoid quota problems. The original Foreign Trade Zones Act did not permit merchandise to be manufactured in a zone. In 1950, section 3 of the Foreign Trade Zones Act was amended to provide that:
Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the Customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into Customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into Customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise....
19 U.S.C. § 81c (1982).
The Foreign Trade Zones Act is administered by the Foreign Trade Zones Board (Board), which has authority to grant to public and private corporations, as those terms are defined in 19 U.S.C. § 81a(e) and (f) (1982), the privilege of establishing, operating, and maintaining foreign trade zones in or adjacent to United States Customs ports of entry. 19 U.S.C. § 81b(a) *1185 (1982). In 1952 the Board promulgated regulations pursuant to 19 U.S.C. § 81h to authorize "zones for specialized purposes" or "subzones" in areas separate from existing free trade zones "for one or more of the specialized purposes of storing, manipulating, manufacturing, or exhibiting goods" when the Board finds that existing or authorized zones will not serve adequately the convenience of commerce with respect to the proposed purposes. 17 Fed. Reg. 5316 (June 11, 1952), now codified without amendment at 15 C.F.R. § 400.304 (1988). In contrast to general purpose zones where a municipal corporation leases a portion of the zone to firms that subsequently locate within that zone, subzones are generally used by a single firm. deKieffer & Thompson, Political and Policy Dimensions of Foreign Trade Zones: Expansion or the Beginning of the End?, 18 Vand.J.Transnat'l L. 481, 492 (1985). Subzones are especially attractive to domestic manufacturers that import component parts or raw materials because the board may authorize subzones for existing or planned production facilities and thus spare manufacturers from relocating facilities to existing or authorized general purpose zones. Id.
The Metropolitan Nashville Port Authority applied to the Board on December 18, 1981 for authority to establish a foreign trade subzone at Nissan's vehicle manufacturing and assembly plant in Smyrna, Tennessee.
On February 2, 1982, Nissan requested a Customs ruling under 19 C.F.R. § 177.1(a)(1) regarding its future obligations for duties. Nissan stated that production machinery to be used in the subzone consisted of a highly automated integrated system of industrial robots, automated conveyor and stamping systems, and a complex computerized interface. In the proposed final configuration, Nissan noted that it was uncertain whether the machinery would be capable of full-scale production of motor vehicles, and that machinery needed to be assembled, installed and tested. As a result of these tests, Nissan stated that some or all of the machinery might be returned to the foreign manufacturers, replaced, redesigned, or scrapped as useless.
Upon the facts Nissan presented, Customs decided that production equipment imported into a foreign trade zone is not "merchandise" for purposes of the Foreign Trade Zones Act and is thus dutiable. In Nissan's case, however, Customs deferred assessment of duties on the production machinery until it was completely installed and tested in full-scale production of motor vehicles in the subzone. C.S.D. 82-103, 16 Cust.Bull. 869, 870 (1982).
The Board approved the application for the foreign trade zone subzone, Resolution and Order Approving Applications of Metropolitan-Nashville Davidson County Port Authority for a Foreign-Trade Zone and Subzone in the Nashville Customs Port of Entry Area, 47 Fed.Reg. 16,191 (Apr. 15, 1982), and in May of 1982 Nissan began to place in the subzone production equipment valued at approximately $116,314,883, with over $3,000,000 in assessed duties. See Suzman, An Evaluation of Current Trends in Foreign Direct Investment in the Southeast United States, 18 Vand.J.Transnat'l L. 247, 257-58 (1985) (description of the Nissan Subzone). The 29 entries involved in this action were filed on June 13, 1983 and liquidated as entered on June 6, 1986. The liquidations were protested on September 3, 1986 and denied on January 8, 1987. The Court has jurisdiction under 28 U.S.C. § 1581(a) (1982).

DISCUSSION

1
The Foreign Trade Zones Act provides that merchandise may be brought into foreign trade zones and "may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into Customs territory of the United States...." 19 U.S.C. § 81c (1982).
*1186 The Court finds that the imports in this action are actively used or intended to be used to produce motor vehicles. The imports are thus not stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated or manufactured to be exported, destroyed, or sent into the Customs territory of the United States.
Given the exhaustive list of activities in the 1950 amendment, it would distort the statute's plain language to read in other terms such as "installed," "affixed," "used," "consumed," or "operated." A general rule of statutory construction is that the expression of one thing is the exclusion of the alternative, expressio unius est exclusio alterius. See United States v. Douglas Aircraft Co., 62 CCPA 54, 59, C.A.D. 1145 (1975). None of the activities that Congress identified in its comprehensive list permit installation or operation of production equipment without payment of duties.
In addition to a plain reading of the statute, the legislative history of the 1950 amendment to the Foreign Trade Zones Act is instructive on Congress' intent:
The first proviso to section 3 of the act of June 18, 1934, now authorizes the appraisement and liquidation of duties on foreign merchandise when it is first admitted to a zone, such duties not to be paid until the merchandise is sent into customs territory. This privilege has not been used by importers, possibly because the proviso also imposes an absolute requirement that the duties be paid within a maximum of 2 years, even if the merchandise is never sent into customs territory. The proposed legislation would modify this proviso in several respects. The importer could secure a finding of the taxes as well as the duties on his merchandise. This finding could be requested either when the foreign merchandise first entered a zone or at any time during its stay in the zone unless and until there was a manipulation or manufacture effecting a change in tariff qualification of the merchandise. The proposed legislation would authorize such a finding, once made, would thereafter govern the dutiable and taxable status of the merchandise whenever it was sent into customs territory, whether or not it had been manipulated or manufactured in the zone in the meantime. The present absolute requirement for payment of duties on merchandise obtaining a privileged status under the proviso would be eliminated. Duties and taxes would be payable in accordance with the finding only if and when the merchandise was sent into customs territory. The amended proviso would not authorize consumption of merchandise in a zone, but would authorize its exportation or destruction without the payment of the liquidated duties and determined taxes thereon.

S.Rep. No. 1107, 81st Cong., 2d Sess. (1949), reprinted in 1950 U.S.Code Cong. & Admin.News 2533, 2535-36 (emphasis added). Defendant interprets this history to show Congress' intent that zones not be used to completely avoid duties on production equipment that is consumed (used) in the zone.
Defendant's interpretation is further supported by legislative history amending the Foreign Trade Zones Act (P.L. 98-573), which states expressly that under the Act as amended in 1950, the exemption of payment of duties for merchandise imported into a foreign trade zone "does not apply to machinery and equipment that is imported for use (for manufacturing and the like) within a foreign trade zone." S.Rep. No. 308, 98th Cong., 2d Sess. 35, 36, reprinted in 1984 U.S.Code Cong. & Admin.News 4910, 4944-45. Although this observation was made in 1984 after the production machinery was imported into the Nissan subzone, the statement dovetails with the legislative history of the 1950 amendment. "While in general it is legislative history prior to and at the time of enactment which is most helpful in ascertaining intention, yet, we [as judges] are not to ignore the legislative history in connection with subsequent congressional consideration of the legislation, incidental to modifying enactments or to reenactments." Ellis K. Orlowitz *1187 Co. v. United States, 74 Cust.Ct. 583, 590, 200 F.Supp. 302, 308 (1961), aff'd, 50 CCPA 36, C.A.D. 816 (1963). See also Butler v. United States Dep't of Agriculture, 826 F.2d 409, 414 n. 6 (5th Cir.1987) (although subsequent congressional statements are worthy of less weight than contemporaneous ones, they are nevertheless entitled to careful consideration as secondarily authoritative expression of expert opinion).
In a Customs Service Decision on production machinery imported from Japan for use in another foreign trade zone, Customs stated that "not every article can be termed `merchandise.'" C.S.D. 79-418, 13 Cust.Bull. 1627, 1627 (1979). Customs stated that Congress'
very action of listing the permitted operations rather than simply stating that foreign merchandise could be admitted free of duty was purposeful. The list does not permit an article to be brought into a zone, free of duty, to be used as production equipment to make other articles. The clear intent was to limit the scope of permitted operations is shown in the restriction on the term "manufactured" by the language " * * * except as otherwise provided in this chapter * * *," and in the discussion of the fifth proviso to section 3 in the Senate Report No. 1177, 81 Cong. (September 26, 1949).
13 Cust.Bull. at 1629-30. Customs also found support in Congress' rejection of legislative proposals to specifically permit entry of production equipment into foreign trade zones without payment of duties.
This case is not the first judicial review of the dutiable status of imports in a foreign trade zone subzone. In Hawaiian Indep. Refinery v. United States, 81 Cust.Ct. 117, 460 F.Supp. 1249 (1978), appeals dismissed, 66 CCPA 135 (1979), crude oil was imported into a foreign trade zone subzone and processed at the oil refinery in the subzone. Some of the processed crude oil was then stored and used as needed as a source of fuel for the refinery's operations. Customs required the plaintiff to file consumption entries for refined crude oil used as fuel within the zone and classified the fuel under the Tariff Schedules of the United States (TSUS). The plaintiff protested Customs' decision and claimed the refined crude oil was not subject to duty because it never entered customs territory.
The United States Customs Court found from the free trade zone statutes and regulations that distinct lines were drawn between the boundaries delineating the geographical territory of the United States and the Customs territory of the United States. The court stated that:
Resort to the legislative history of the Foreign Trade Zones Act, and its amendments, confirms the conclusion that foreign merchandise is not subject to duty until it actually enters the customs territory of the United States.
81 Cust.Ct. at 123, 460 F.Supp. at 1254. The court thus agreed that the refined crude oil used as a secondary source of fuel in the subzone refinery was not dutiable:
In view of the fact that Congress, in enacting the Foreign Trade Zones Act and its amendments, has provided for distinct geographical zones separate from our customs territory, the defendant's argument for the dutiability of the instant merchandise which remains within Sub-zone 9-A is without persuasion. Merchandise which does not actually enter the customs territory of the United States is not dutiable under the Tariff Schedules of the United States.
Id. at 124, 460 F.Supp. at 1255. The dicta in Hawaiian Indep. Refinery indicates that the Court reached its decision strictly on a territorial interpretation of the Foreign Trade Zones Act.
Defendant distinguishes Hawaiian Indep. Refinery on the basis that while refined crude oil is merchandise within the meaning of the Foreign Trade Zones Act, production equipment is not merchandise because Congress' exhaustive list of permissible operations does not permit an article to be brought into a zone, free of duty, to be used as production machinery to make other articles.
As a matter of public policy, defendant states that Congress did not intend to place *1188 domestic manufacturers or sellers of production machinery at a competitive disadvantage with foreign-manufactured production machinery that could be imported without duty for foreign trade zones and sold cheaper.
The Court finds that the exhaustive list of permitted activities and the relevant legislative history show that foreign-manufactured machinery imported to manufacture goods in a foreign trade zone are not exempt from duty.

2
Noting that Hawaiian Indep. Refinery stated that "merchandise is not subject to the customs laws while in a zone, unless the Foreign Trade Zones Act authorizes their application", 81 Cust.Ct. at 122, 460 F.Supp. at 1254, defendant also argues that the Act authorizes application of the tariff schedules to Nissan's production equipment because the Board specifically contemplated payment of these duties in creating Nissan's subzone. Defendant asserts that because the Board is directed to "prescribe such rules and regulations ... as may be necessary to carry out" the Act, 19 U.S.C. § 81h (1982), Nissan cannot avoid payment of duties on its production equipment.
Defendant asserts that Nissan implicitly acknowledged its obligation to pay duties on production equipment in the "formal and complete application to establish a foreign trade zone" and a "Basic Plan for the FTZ System" which were submitted in May of 1982. Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment, at 21-23. Defendant asserts "[t]hese documents define the scope of the zone granted by the Board." Id. at 23.
Without addressing the Board's authority to condition the granting of a zone or subzone on the payment of duties on production equipment, the Court finds that the Board did not condition the grant of Nissan's subzone on any implicit promises in the May documents to pay duties. The Court reaches this conclusion because the Board had already adopted its "Resolution and Order" on March 30, 1982, and delivered its "Grant of Authority" on April 2, 1982. Both documents were then published in the Federal Register. Resolution and Order Approving Applications of Metropolitan-Nashville Davidson County Port Authority for a Foreign-Trade Zone and Subzone in the Nashville Customs Port of Entry Area, 47 Fed.Reg. 16,191 (Apr. 15, 1982). Contrary to defendant's assertion that "[t]he Board's grant of the Port Authority's and Nissan's application plainly required the payment of duties on production equipment," Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment, at 23, the Board required Nissan to abide by only the "provisions, conditions, and restrictions of the Act and the regulations issued thereunder," as well as certain "express conditions and limitations" enumerated in the grant. 47 Fed.Reg. at 16,191. Nowhere did the Board "plainly require" Nissan to pay duty on production machinery remaining in the zone.
Nissan states defendant is confusing the actions of the Board and Customs, because the Board's decision to approve Nissan's subzone is totally unrelated to the subsequent manner in which Customs required Nissan to enter production machinery into the zone. Regarding the actions of Customs, Nissan states that its ruling request in February of 1982 acknowledged that in C.S.D. 79-418, 13 Cust.Bull. 1627 (1979), Customs had limited Hawaiian Indep. Refinery to the facts of that case. Therefore, Nissan based its claim on the realization that C.S.D. 79-418 could only be overturned by appeal to the Court of International Trade. Similarly, in Nissan's "Basic Plan for FTZ System Design" and Customs Form 216, Nissan states that it accepted the fact that Customs would not allow an importer to bring production machinery into a foreign trade zone free of duty:
In this regard, there is absolutely no requirement that a party wishing to challenge a Customs Service decision indicate its disagreement with Customs at the time of entry. Importers routinely enter *1189 merchandise in the manner required by Customs, and the protest liquidation of entries pursuant to Section 514, Tariff Act of 1930, as amended. These normal Customs procedures apply to FTZ merchandise, as the Government itself has acknowledged by admitting that this court has jurisdiction over the entries in issue. Thus, the fact that a Zone applicant computes the economic benefit to be derived from an FTZ based on Customs' position at time of entry does not bar the Zone grantee from challenging that position through litigation.... [Nissan] is not precluded from challenging Customs position as to the dutiability of production machinery merely because [Nissan] correctly recognized that it would be futile to convince the Customs Service to overturn its position, and that it therefore would be required to challenge Customs' decision in the CIT.
Plaintiff's Response to Defendant's Statement of Material Facts, at 12-14.
Similar to where the Court of International Trade has not required plaintiffs to argue before an agency that the agency should not apply its own regulation, Rhone Poulenc, S.A. v. United States, 7 CIT 133, 135, 583 F.Supp. 607, 610 (1984), the Court finds that Nissan complied with Customs' requirements in order to preserve its right to judicial review in this Court after denial of a protest rather than subject itself to a finding of estoppel.
Regarding actions of the Board, the Court finds that Nissan's December 18, 1981 application to the Board made no reference to the dutiable status of production machinery and the Board's grant of authority neither restricted Nissan's right to enter production machinery into the zone without paying duty nor conditioned the grant on Nissan's waiving its right to challenge Customs' entry requirements by filing a protest against liquidation and commencing an action in this Court to challenge denial of the protest. The situation is similar to Hawaiian Indep. Refinery, where the court found the Board's grant of authority "was in no way conditioned upon the use of duty paid fuel." 81 Cust.Ct. at 126, 460 F.Supp. at 1257.
The documents accompanying the motions for summary judgment do not support defendant's second argument that Nissan must pay duties because it agreed to do so or was required to do so in the Board's grant of authority. However, the failure of defendant's second argument does not defeat the success of its first argument based on the statute and legislative history.

CONCLUSION
Based on the language of the Foreign Trade Zones Act, as amended, and the relevant legislative history, the Court holds that production machinery and related capital equipment are dutiable. Customs' determination to assess duties on the production machinery is affirmed. Nissan's motion for summary judgment is denied. Defendant's motion for summary judgment is granted. Judgment will be entered accordingly.


352 F.3d 318
VENCARE ANCILLARY SERVICES, INC., Petitioner/Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
No. 01-2165.
No. 01-2300.
United States Court of Appeals, Sixth Circuit.
Argued: October 23, 2003.
Decided and Filed: December 11, 2003. Pursuant to Sixth Circuit Rule 206.

ARGUED: John v. Nordlund, Fairfax, California, for Petitioner.
Meredith L. Jason, National Labor Relations Board, Washington, D.C., for Respondent.
ON BRIEF: John V. Nordlund, Fairfax, California, for Petitioner.
Meredith L. Jason, Aileen A. Armstrong, Kira Vol, National Labor Relations Board, Washington, DC, for Respondent.
Before KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*
OPINION
KENNEDY, Circuit Judge.

1
This case presents an appeal from the Board's order finding that Petitioner — Cross-Respondent Vencare unlawfully discharged five employees for engaging in a protected activity under the National Labor Relations Act ("Act"). Petitioner argues that the Board erred in several respects, including its holding that the employees' conduct did not constitute an unprotected partial strike. We deny the enforcement of the Board's order.

BACKGROUND

2
Petitioner was a subsidiary of Vencor, Inc., a national health care provider based in Louisville, Kentucky that operated hospitals, skilled nursing facilities and nursing homes, including Hermitage Nursing and Rehabilitation Center ("Hermitage").1 Petitioner contracted rehabilitation services to Vencor. At all relevant times, Bryan Stuart was the on-site supervisor of Petitioner's employees at Hermitage, including physical therapists, physical therapy aides, speech and language therapists, and rehabilitation technicians. The Hermitage therapists were paid hourly wages rather than a salary, but did not punch a time clock. Instead, they each filled out a daily activity report ("DAR") each evening, describing that day's work. Petitioner calculated the therapists' pay according to the number of hours they claimed on their DARs.

3
On May 29, 1998, Petitioner announced wage reductions for its rehabilitation employees, effective July 1. On the same day, Stuart met with his employees to explain the wage changes. The employees, upset by the news, began discussing among themselves in early June what actions to take to reverse the decision. On Friday, June 19, a group of the rehabilitation employees met after work at Moreland Park, near Hermitage. This group included Norman deCaussin,2 Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil Kanth-Bohre, and Martha Severs ("Vencare Five.")3 At the meeting, the group drafted a letter containing their demands related to the wage reductions and raising other issues, including work load and scheduling.4 The group selected deCaussin to represent them at the meeting with Stuart on June 23. DeCaussin told Stuart that the employees were going to refuse to see patients that day until someone from upper management met with them to discuss their issues. DeCaussin also said that the group would remain on the premises. Severs testified that the group informed Stuart that they "were going to ... do other work such as paper work until corporate agreed to talk to [them]."5 No one said they were on strike, nor were the terms "strike" and "work stoppage" ever used. Stuart told them he would fax the letter to Kevin Mack, his superior. He also asked the Vencare Five to continue seeing patients until he received a response from the upper management. The group refused and returned to the therapy office to do paperwork and other projects.6 At some point that morning, Thomas told Stuart that if the issue was not addressed, she would quit.7

4
Over the course of the morning of June 23, Stuart met individually with each employee who was refusing to see patients. He explained that their refusal to see patients was an entirely different matter from their grievance letter, and that refusing to see patients could have serious consequences for their jobs. Around noon, deCaussin told Stuart that he was not feeling well and was going to go home. He also said that if Stuart needed anything, he should call deCaussin at home. The other four employees told Stuart about the same time that they were taking "their designated lunch," but that they would return. When they returned from their lunch break, Stuart told them that he heard from management, and had been instructed to tell them to go home until further notice. The group met at 2:30 p.m. in the park to discuss whether to picket the Hermitage facility. They decided not to do so.

5
On June 24, they met again and drafted letters which were faxed to corporate management, in which they requested a meeting to address their grievances. On June 24, Petitioner decided to terminate the employees who refused to see patients for insubordination. Stuart called all five employees on June 24 to schedule individual meetings with them the following morning. The employees telephoned each other and agreed to meet with the management only as a group. When they arrived at Hermitage the next morning, they informed Stuart they would only meet as a group. Stuart then told all of them at once that they were being terminated for insubordination due to their refusal to see patients on June 23. Nearly eight months later, on February 12, 1999, Petitioner sent each of the five discharged therapists a paycheck for Tuesday, June 23.

6
This case originated with an unfair labor practice charge, filed against Petitioner by Severs on September 24, 1998. The General Counsel issued a complaint on October 30, 1998. Following a hearing, an administrative law judge dismissed the complaint on May 28, 1999.8 Petitioner and the General Counsel both excepted to the judge's decision before the Board. On August 6, 2001, the Board issued a Decision and Order reinstating the complaint, finding that Petitioner had violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).

STANDARD OF REVIEW

7
Under the Act, the scope of this Court's review of the Board's findings is limited. First Healthcare Corp. v. NLRB, 344 F.3d 523, 528 (6th Cir.2003). More specifically, "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e). "Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision." Turn-bull Cone Baking Co. of Tennessee v. NLRB, 778 F.2d 292, 295 (6th Cir.1985) (per curiam)(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Although this Court "should consider the evidence contrary to the Board's conclusions," it "may not conduct a de novo review of the record." Id. (citing Union Carbide Corp. v. NLRB, 714 F.2d 657, 660 (6th Cir.1983)). "When there is a conflict in the testimony, `it is the Board's function to resolve questions of fact and credibility,' and thus this court ordinarily will not disturb credibility evaluations by an ALJ who observed the witnesses' demeanor." Id. (quoting NLRB v. Baja's Place, 733 F.2d 416, 421 (6th Cir.1984)). "The Board's application of the law to particular facts is also reviewed under the substantial evidence standard..." Id. (citations omitted). However, "[i]f the Board errs in determining the proper legal standard, the appellate court may refuse enforcement on the grounds that the order has `no reasonable basis in law.'" Id. (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979)).

ANALYSIS

8
On appeal, Petitioner argues that the refusal by the Vencare Five to see patients was unprotected by the Act for two reasons: (1) it was a partial strike; and (2) the group failed to give advance notice of the work stoppage, as required of employees at a health care institution by Section 8(g) of the Act. Petitioner further argues that since the work stoppage was unprotected, it was lawful for it to terminate the employees for their refusal to see patients. Respondent argues that substantial evidence supports the Board's finding that the work stoppage was protected. We find that the employees engaged in an unprotected partial strike and that their discharge was lawful.9 Therefore, we do not reach the question of whether the Vencare Five constituted a labor organization that was required to give a 10 day notice before striking a health care employer.

9
Section 7 of the Act protects "not only concerted activity under the sanction of a labor union, but also concerted activity of the same nature engaged in by unorganized employees." Vic Tanny Int'l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir.1980). However, "not ... all work stoppages are federally protected concerted activities." Auto Workers Local 232 v. Wisconsin Employment Relations Bd., 336 U.S. 245, 255, 69 S.Ct. 516, 93 L.Ed. 651 (1949), overruled on other grounds by Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers v. Wisconsin Employment Relations Comission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). While employees may strike to "protest and seek to change any term or condition of their employment," thus assuming the risk of losing their jobs, they may not strike and retain the benefits of working at the same time. First Nat'l Bank of Omaha, 171 N.L.R.B. 1145, 1151, 1968 WL 19259 (1968), enforced, 413 F.2d 921 (8th Cir.1969). Partial strikes, where employees continue working on their own terms, are therefore unprotected by Section 7 of the Act. Id. at 1149-51; Valley City Furniture, 110 N.L.R.B. 1589, 1594, 1954 WL 13146 (1954), enforced, 230 F.2d 947 (6th Cir.1956). Employees, thus, may not "refuse to work on certain assigned tasks while accepting pay or while remaining on the employer's premises." Audubon Health Care Ctr. v. United Labor Unions, Local 100, 268 N.L.R.B. 135, 136, 1983 WL 24712 (1983) (finding that nurses engaged in a partial strike when they refused to perform some of their job functions while performing others). They may, however, engage in a single walkout. Daniel Constr. v. Wilcher, 277 N.L.R.B. 795, 1985 WL 46097 (1985).

10
The ALJ concluded that the Vencare Five did not engage in a partial strike. In its opinion,

11
The General Counsel correctly characterize[d] the "old patient" paperwork performed after the group's announcement to Stuart as incidental wind-up work done in preparation for their work stoppage regarding new patients. Moreover, the Vencare Five told Stuart that they did not expect to be paid for this paperwork and immediately left the premises when Stuart told them to do so after lunch on June 23 ... Lastly, the employees did not "pick and choose" when they would perform their work duties by announcing either a 24-hour or few days' delay in seeing patients ... Rather their action was simply a short-term, single work stoppage-the first of its kind-whose only goal was to obtain a meeting with management.

12
Vencare Ancillary Servs., Inc., 334 N.L.R.B. No. 119, 2001 WL 910767, at *17 (Aug. 6, 2001) (decision of the ALJ). The Board agreed with the ALJ and found that "any work done after the group announced that they were refusing to see patients, was done in preparation for, and in conjunction with the work stoppage." Vencare, 2001 WL 910767, at *9. The Board continued to say:

13
In reaching this conclusion, we find it unnecessary to determine the percentage of time the employees normally spent performing paperwork, or the percentage of billable time attributable to paperwork. The judge found that the employees' paperwork function took up to 10 to 20 percent of their time and approximately 40 percent of their billable time. However, the testimony in this regard was ambiguous, (particularly with respect to the 40 percent figure), or was given in response to leading questions, and the exhibits do not clearly support the testimony. For the reasons discussed below, we find that, regardless of the percentage of time the employees normally spent on or billed for paperwork, the fact that they performed paperwork while waiting to hear back from upper management did not render their work stoppage an unprotected partial strike.

14
Id. at *9 n. 14 (emphasis added).

15
We find that the ALJ and the Board erred in concluding that the actions of the Vencare Five did not constitute a partial strike. Unlike the Board, we find that it is significant that the Vencare Five did some work after making their demands known. As the Board noted in an earlier case, "the Board and the courts have repeatedly condemned employees' refusal to work on the terms lawfully prescribed by the employer while remaining on their jobs." Highlands Hosp. Corp. v. District 1199, 278 N.L.R.B. 1097, 1986 WL 54186 (1986) (finding that the security guards engaged in a partial strike when they failed to perform some of their functions during a strike by the hospital employees); See also N.L.R.B. v. Local Union No. 1229, 346 U.S. 464, 476 n. 12, 74 S.Ct. 172, 98 L.Ed. 195 (1953) ("An employee can not work and strike at the same time. He can not continue in his employment and openly or secretly refuse to do his work.") (citations omitted). It is true that had the Vencare Five simply remained on the premises and waited to hear back from the management, they might have been protected under the current law.10 They did not, however, do that. See, e.g., Highlands Hosp., 278 N.L.R.B. at 1097 (drawing a distinction between the security guards who stated they would not perform certain duties and "the office clerical and other nonunit employees who joined the strike[,] ceased working completely[,] and refused to cross the picket line."); Audubon, 268 N.L.R.B. at 136 ("Having concluded that covering open sections was part of the nurses aides' job duties, we find that the aides were engaged in a partial strike when they refused to work in the open section. Thus, they did not completely walk off the job.") The Board's opinion that their conduct is commendable since they actually behaved responsibly is legally irrelevant. See, e.g., Audubon, 268 N.L.R.B. at 137 ("While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging in a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all their services from their employer."); Yale University, 330 N.L.R.B. at 247 (finding that the graduate teaching fellows engaged in a partial strike when they refused to submit their students' final grades for the semester to the University but continued writing letters of evaluation and recommendation for their students). The underlying rationale of the prohibition on partial strikes is that the employer has a right to know whether or not his employees are striking. See Vic Koenig Chevrolet v. Ruble, 263 N.L.R.B. 646, 650, 1982 WL 23888 (1982) (finding that "a struck employer is entitled to a clearcut decision from employees either to join the strike or to work in accordance with the instructions of the employer, including performance of struck work, so long as the employer does not discriminate against employees unwilling to perform the work of the strikers."). The conduct exhibited by the Vencare Five does not meet the clear definition of a protected strike. Yale Univ., 330 N.L.R.B. at 247 (affirming the ALJ's finding that the teaching fellows who refused to submit grades while writing recommendation letters "sought to bring about a condition that would be neither strike nor work.") (quoting Valley City, 110 N.L.R.B. at 1595). The Board had clearly articulated a long time ago why the Vencare Five's decision to stop seeing patients while performing other duties is an unprotected activity:

16
Employees may protest and seek to change any term or condition of their employment, and their ultimate sanction is the strike ... What may make such a work stoppage unprotected is exactly what makes any work stoppage unprotected, that is, the refusal or failure of the employees to assume the status of strikers, with its consequent loss of pay and risk of being replaced. Employees who choose to withhold their services because of a dispute over scheduled hours may properly be required to do so by striking unequivocally. They may not simultaneously walk off their jobs but retain the benefits of working.

17
First Nat'l Bank of Omaha, 171 N.L.R.B. at 1151.11 We understand that the Vencare Five were upset over the impending wage cuts. They decided to "flex their muscles" by withholding patient care, the major function of their jobs. The Board implies that they were doing work necessary for the protection of patients. However, there was no evidence that any of the performed work fell into the category of protecting the patients. Furthermore, there were no other exigent circumstances that required the striking employees to continue some work to avoid irreparable harm.12 The employees testified that they merely caught up on back paperwork which, in some cases, was several weeks old, as well as helped the clerical staff with filing.

18
We reiterate that employees must completely stop working or risk being discharged for engaging in an unprotected activity. There will always be conflicts between employers and employees, and the employees will often resort to with-holding their work as means of applying pressure on the employers. The employers will often respond by replacing the striking workers. Although we are sympathetic to the plight of the Vencare Five, who appear to have no knowledge of the labor law, we are constrained to find that the harsh result in this case is a consequence of a Congressional policy designed to protect both the employer and the employee. See, e.g., Vic Koenig Chevrolet, 263 N.L.R.B. at 650 (finding that a "young, inexperienced, very likely unknowledgeable about labor relations" lot boy nevertheless engaged in an unprotected partial strike when he failed to perform some of his duties).

CONCLUSION

19
In sum, we conclude that the employees engaged in an unprotected strike and were therefore lawfully discharged by Petitioner. Enforcement of the Board's order is denied.

Notes:

*
 The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation

1
 After the trial in this case, Vencor, Inc. filed for Chapter 11 bankruptcy. It has since emerged with a new name, Kindred Health-care, Inc

2
 Norman deCaussin was the only employee not affected by the wage cut

3
 They elected the name "Vencare Five" since Kanth-Bohre dropped out because of concerns over his immigration status. Traci O'Rourke signed the letter unaware that it contained the threat to stop seeing patients. Upon learning of that "detail" at the June 23 meeting with Stuart, she went back to seeing the patients

4
 The employees testified at the hearing before the administrative law judge that the group only wanted to reverse the wage adjustment; it merely raised the issues such as work load and scheduling, to support their claim that the wage adjustment was unwarranted

5
 DeCaussin, Higdon and Thomas acknowledged that the group informed Stuart that they were going to stop seeing patients but did not testify that the group would continue to do other work

6
 The employees told Stuart that the therapists who were refusing to see patients did not expect to be paid that day, and none of the five filled out a DAR for that Tuesday

7
 Only Thomas actually told Stuart that she would quit. Thomas and Higdon testified, however, that they not only intended to resign, but considered themselves as having already resigned before being informed of their termination

8
 The ALJ found that Petitioner did not violate the Act because the employees' work stoppage was unprotected. The ALJ found that the employee group was a "labor organization" within the meaning of Section 2(5) of the Act, and had failed to comply with Section 8(g), which requires that a labor organization give 10 days notice before engaging in a work stoppage at a healthcare institution. However, the ALJ rejected Petitioner's alternative argument that the employees had engaged in an unprotected partial strike

9
 We accordingly do not address the issue of reinstatement and back pay, including the question of whether two of the five employees quit before they were told they were fired. We also do not address Petitioner's argument that it was never advised that the Vencare Five engaged in a strike

10
 Respondent's discussion of cases involving sit-down strikes is therefore misplaced. All the cases cited in its brief involved situations where the striking workers remained on the premiseswithout working. See, e.g., City Dodge Ctr., Inc. v. Cozatt, 289 N.L.R.B. 194, 196-97 (1988), enforced sub nom., Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355 (8th Cir.1989) (complete work stoppage protected even though employees remained on employer's premises). Their failure to work therefore provided their employers with a clear indication of a strike. The issue in those cases was not whether or not employees engaged in a partial strike, but rather, assuming that a strike was a complete one, whether or not their conduct should be protected by the Act. See, e.g., Yale Univ., 330 N.L.R.B. 246, 257, 1999 WL 1076116 (1999) ("Not every work stoppage is protected activity, however; at some point, an employer is entitled to assert its private property rights and demand its premises back."). By citing these cases, Respondent merely confuses the issue by ignoring the clear difference between partial strikes and sit-down strikes. Although both types of strikes constitute an unprotected activity, they raise different concerns and should not be evaluated similarly. First Nat'l Bank of Omaha, 171 N.L.R.B. at 1149 ("There are cases which hold that the concerted activity of employees in refusing to work on assigned tasks [1] while accepting pay or [2] while remaining on the employer's premises is unprotected.") (emphasis added).

11
 Petitioner and Respondent argue about the legal relevance of the Vencare Five's expectation that they would not be paid for June 23. In light of the Fair Labor Standards Act's requirement that employees be paid for any time they are "suffered or permitted to work," regardless of whether the employees ask or expect to be paid, we agree with Petitioner that employees' expectations about being paid are not relevant to the question of whether there was a partial strike. 29 CFR § 785.11 ("For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial.")

12
 See, e.g., NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155 (5th Cir.1954) (employee walked off the job and left a potentially explosive boiler unattended); U.S. Steel Co. v. NLRB, 196 F.2d 459 (7th Cir.1952) (supervisors refused to assist their employer in maintaining and protecting the steel plant from imminent danger and destruction during strike period); Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314, 1953 WL 10987 (1943), enf. denied, 218 F.2d 409, 413 (5th Cir.1955), supplemented, 115 N.L.R.B. 7 (1956) (employee walkout happened at the moment molten iron was ready to be poured).


131 F.Supp.2d 947 (2001)
Geraldine FUHR, Plaintiff,
v.
SCHOOL DISTRICT OF the CITY OF HAZEL PARK, Defendant.
No. 99-CV-76360.
United States District Court, E.D. Michigan, Southern Division.
March 2, 2001.
*948 Deborah L. Gordon, Royal Oak, MI, for Plaintiff.
Timothy J. Mullins, Troy, MI, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
STEEH, District Judge.
This case arises out of plaintiff Geraldine Fuhr's allegation of sexual discrimination by defendant School District of the City of Hazel Park. Plaintiff's allegation of discrimination stems from the fact that she was passed over for the position of boys varsity basketball coach in favor of a male teacher. Defendant has filed a motion for summary judgment, which this court DENIES for the reasons stated below.

FACTUAL BACKGROUND
Plaintiff was hired at Hazel Park High School ("HPHS") as a social studies teacher and coach in 1989. Charles Kirkland had been the boys' varsity basketball coach at HPHS for ten years when he decided to give up the position at the end of the 1998-1999 season. Only two candidates applied for the boys' varsity basketball coach position  plaintiff and fellow-teacher John Barnett.
In 1999, at the time of the selection process for boys' varsity basketball coach, plaintiff's experience and credentials included the following:
 16 seasons coaching girls' basketball (including 10 years as varsity coach) and 12 seasons coaching boys basketball (including 9 years as junior varsity coach),
 8 seasons as assistant varsity coach to Charlie Kirkland,
 many seasons conducting basketball clinics and camps,
 experience managing and coordinating basketball tournaments and tours, both domestic and international, and
 served as Social Studies department head.
John Barnett's experience at that time was as a junior high gym teacher for four years and coach of the boys freshman basketball team at HPHS for two years under plaintiff.
The collective bargaining agreement between defendant and its teachers' union provides that individuals who coach sports receive additional pay, which is calculated as a percentage of base pay. In 1999 plaintiff's base salary was approximately $66,000. Plaintiff received an additional 9% of pay for serving as coach of the junior varsity boys' basketball team, and an additional 11% of pay for serving as the coach of the girls' varsity basketball team. The pay for coaching a basketball team is the same, regardless of whether the team is boys or girls.
When Charlie Kirkland announced his resignation in March 1999, a selection committee was put together to hire his replacement. The committee consisted of Jim Anker (Superintendent), Vic Mayo (Assistant Superintendent), Dan Grant (District-wide Athletic Director), Jim Meisinger (HPHS Principal), and Tom Pratt (teacher who had been named HPHS Athletic Director for the following year). The committee was selected by Grant. Plaintiff points out that missing from the committee were the previous coach Charlie Kirkland and the current HPHS Athletic Director Dave Eldred. Kirkland ran the *949 basketball program at HPHS and plaintiff coached under him. Kirkland's opinion was never sought by the committee. Eldred attended nearly every home sporting event and supervised both candidates. He testified that if plaintiff had been a male, she would have gotten the job. (Eldred, pp. 49-50). Eldred testified that the natural progression in coaching is freshman, then junior varsity, then varsity. Eldred opined that plaintiff was qualified for and deserved the boys' varsity coach position, and that Barnett should have moved into the boys' junior varsity position. (Eldred, pp. 44-50). Eldred was initially asked to be on the selection committee, but was then "uninvited" on the day of the interviews by Grant, who told him that Superintendent Anker did not want him there.
Principal Meisinger testified that prior to the interviews he learned that certain Board members and Superintendent Anker were not in favor of plaintiff getting the job, citing "community problems" which Meisinger believed had no validity. Meisinger confirmed that Fuhr had no "community problems" beyond what all coaches have to contend with (parent complaints about their child being disciplined unfairly or denied adequate playing time).
Barnett was interviewed first. Anker remained in the room during his entire interview, but left a few minutes into plaintiff's interview. Teacher Tom Pratt asked plaintiff if she could coach both the Varsity boys and girls teams, to which she answered "absolutely", explaining that she had been coaching boys and girls basketball simultaneously at Hazel Park for the past ten years. There is a potential overlap between the boys' and girls' basketball seasons, depending on how the girls' team fairs in the state tournament. For example, in 1999, the girls' tournament began on November 15, the same day as the boys' team began its practice for the upcoming season. The girls' tournament ran until December 4, 1999, ending two days before the first varsity boys' basketball game. Coach Kirkland testified that based on his experience, it would be difficult to coach both varsity girls and varsity boys basketball teams at the same time. "Somebody is going to have to cover for somebody somewhere." (Kirkland, pp. 15-16).
The committee met to discuss the candidates. Meisinger wanted plaintiff. Pratt remained neutral, but agreed that plaintiff was more qualified for the job. The other members supported Barnett, mentioning unspecified "community problems." The issue of gender came up during the committee's discussions, with Anker asking whether it would be a problem to have a female coach in the boys' locker room. (Anker, p. 106). No other reasons for not selecting plaintiff were ever mentioned.

STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if 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 judgment as a matter of law." See FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir.1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir.1992).
The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citing Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th *950 Cir.1989)). The evidence and all inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Enertech Elec., Inc. v. Mahoning County Comm'r, 85 F.3d 257, 259 (6th Cir.1996); Wilson v. Stroh Companies, Inc., 952 F.2d 942, 945 (6th Cir.1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir.1996).
If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir.1995). Mere allegations or denials in the nonmovant's pleadings will not meet this burden. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Further, the nonmoving party cannot rest on its pleadings to avoid summary judgment. It must support its claim with some probative evidence. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993).

ANALYSIS
The parties disagree as to how this case ought to be viewed. According to defendant, plaintiff was denied a transfer from coach of the varsity girls team to the varsity boys team. Defendant argues that the fact plaintiff was not transferred from the varsity girls to the varsity boys team is not actionable because the positions are equivalent and there has been no reduction in plaintiff's pay. Plaintiff, on the other hand, views the facts as presenting a case of failure to hire her in favor of a less qualified male applicant. Additionally, plaintiff argues she should have been promoted from coach of boys junior varsity to that of boys varsity.
A plaintiff may establish a prima facie case of discrimination under Title VII and Michigan's Elliott-Larsen Civil Rights Act either by presenting direct evidence of intentional discrimination by the defendant or by showing the existence of circumstantial evidence which creates an inference of discrimination. Hoffman v. Sebro Plastics, 108 F.Supp.2d 757 (E.D.Mich.2000). Under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff satisfies the burden of establishing a prima facie case of discrimination by proving (1) membership in a protected class; (2) that she suffered an adverse action; (3) that she was qualified for the position; and (4) that she was replaced by, or treated differently than, someone outside the protected class. Id. at 802, 93 S.Ct. 1817. As modified for a "failure to promote" case, the test is whether plaintiff can show she belongs to a protected group, was qualified and applied for the promotion, and that another employee with similar qualifications who was not in the protected group was promoted to the position sought by plaintiff. Brown v. State of Tennessee, 693 F.2d 600, 603 (6th Cir.1982).
Once a plaintiff establishes a prima facie case, an inference of discrimination arises. The burden of proof then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action. Once established, the burden shifts back to the plaintiff to prove that the employer's articulated nondiscriminatory reason for its action was merely pretextual. Texas Dept. of Community Affairs v. *951 Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Defendant argues that there has been no adverse action in this case because plaintiff could not have retained her position as girls' varsity coach and held the boys' varsity coaching position at the same time. Based on this premise, and because both positions had the same rate of pay, defendant argues that plaintiff did not suffer any adverse employment action when she was not chosen to coach the boys' varsity basketball team.
The reason defendant contends plaintiff could not coach both varsity teams is because there is an overlap between the boys' and girls' basketball seasons. The length of the overlap depends on the performance of the girls' team in the state tournament. In 1999, the girls' season finished on December 4, 1999 with the tournament finals, while the boys' first practice began on November 15  a potential overlap of three weeks. Defendant offers the opinion of Charles Kirkland, who had been the boys' varsity basketball coach at HPHS for ten years. According to Mr. Kirkland, during the preseason, he put in three hours a day for fifteen days, plus six hours for a scrimmage the day after Thanksgiving. In the regular season he would have three days of practice, totaling seven hours, each week. Games were twice a week, for a total of ten hours, plus 1½ to 2 hours after each game to review and get ready for the next day's practice. During Christmas and winter break he had practices, scrimmages and games. (Kirkland, pp. 14-15). It is only the preseason that would overlap with the girls' varsity tournament schedule. Kirkland opined that if the same person coached the girls' and boys' varsity basketball teams it would detract from at least one program. "If you're working with the girls and you've got to finish that one up, then somebody's got to deal with the boys until, you know, whoever is coaching them can get there." (Kirkland, pp. 15-16).
Defendant maintains that it has an established non-discriminatory practice of not allowing a single individual to coach two major sports when there is an overlap in the seasons. In support, defendant provides affidavits from Tom Pratt and Dan Grant, along with a chart identifying the coaches and schedules from 1990 to the present. (Defendant's Supplemental Brief, Exhibit B). Plaintiff contends that other individuals at HPHS have been permitted to coach two varsity sports. However, according to defendant, each of these instances involve sports which are played during different parts of the school year, with no overlap. For example, while Amy Houser coaches girls' and boys' varsity soccer, the seasons do not overlap at all.
Plaintiff highlights the example of Frank Stagg who was coach of varsity football and wrestling. The football season ran from August 9 until November 27 including the tournament finals, while the wrestling season began November 15. Plaintiff provides the deposition testimony of James Anker, who identifies Frank Stagg as the one exception to defendant's practice of not having a person be head coach of two major sports. (Anker, dep. at 91). Defendant does not respond to plaintiff's allegation that Frank Stagg was permitted to coach two varsity sports with overlapping seasons. It would appear that this occurred prior to the 1990-1991 season, as it is not included in Exhibit B to defendant's supplemental brief.
Recognizing the overlap in the girls' and boys' basketball seasons, plaintiff points out that she handled the overlap for ten years while she coached the girls' varsity and boy's junior varsity teams. She testifies that in applying for the boys' varsity basketball position, she "wanted to be both the varsity girls and the varsity boys coach.... No one told me that I couldn't be both. If it ever came to the point where they said you had to choose one, not because I love girls basketball any less, but because I have  I've never coached the varsity boys, I would have done that if I *952 had to, but I didn't want to and I could have handled both and I should have been both." (Fuhr, pp. 235-36). According to plaintiff, nobody ever told her that if she was offered the boys' varsity position she would have to choose one varsity team over the other.
In addition to relying on its alleged nondiscriminatory practice of treating all varsity coaches alike, defendant cites to a number of cases from the Sixth Circuit for the proposition that something more than a slight reduction in employment level is required before finding an adverse employment action. Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir. 2000); Hatcher v. General Electric, 2000 WL 245515, 2000 U.S.App. LEXIS 2837 (6th Cir.2000); Orsini v. East Detroit Public Schools, 1995 WL 428426, 1995 U.S.App. LEXIS 20538 (6th Cir.1995). According to defendant, a plaintiff must suffer a loss of seniority, salary or other benefits as a result of a reduction in her employment level in order to state a cause of action. Defendant contends that in this case, if plaintiff had been appointed to the position of boys' varsity coach, she would have had to give up her boys' junior varsity position as well as her girls' varsity position, and would have suffered a reduction in her total pay. Therefore, defendant maintains that its refusal to transfer plaintiff actually preserved her existing rate of pay.
However, each of the cases relied on by defendant involved an employer-imposed job transfer where the employee was required to show that the transfer was in some way adverse. In the present case, plaintiff's adverse job action was not an employer-imposed job transfer, but rather the denial of an employee-sought job transfer or promotion. The Seventh Circuit has stated that when a plaintiff applies for a transfer, "[w]hether the new position is equivalent to or better than her current job is irrelevant to whether she was qualified for, applied for, and was rejected from the position while a less qualified male was selected. The fact that she was denied a position she applied for is adverse in and of itself." Parker v. State, Dept. of Public Safety, 11 F.Supp.2d 467, 477 (D.Del.1998).
Plaintiff has successfully raised a question of fact whether defendant in fact had an established policy of not permitting the same person to coach two varsity sports with overlapping seasons. Such a policy was never communicated to plaintiff when she applied for the boys' varsity position. Plaintiff was not asked to chose between the boys and girls varsity teams. Finally, defendant has no explanation for the Frank Stagg being able to coach two varsity sports with overlapping schedules.
The court does not agree with defendant's characterization of plaintiff's claim as being one of discriminatory failure to transfer. Rather, the court will analyze plaintiff's claim as one of discriminatory failure to hire or promote. Plaintiff argues that the denial of the boys' varsity coach position was an adverse action whether viewed as a failure to promote case or a failure to hire case. Plaintiff argues that defendant failed to promote her from boys' junior varsity coach to varsity/head coach, where she would have been in charge of the entire boys' basketball program, providing direction to and supervising the junior varsity and Ninth grade coaches. In this way, the job was clearly a promotion with higher visibility, a more distinguished title, and higher pay. In employment law, adverse action includes the failure to promote. Board of County Com'rs, Wabaunsee County, KS v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). If viewed as a failure to hire case, the denial of a sought-after position is also clearly an adverse action.
Plaintiff has successfully made out a prima facie case of discrimination in this case. The burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its action. In this case, defendant has explained that it had an established policy of not permitting anybody *953 to coach two varsity sports with overlapping seasons. Plaintiff, however, has provided sufficient evidence to raise an issue of fact that the defendant's articulated nondiscriminatory reason for its action was pretext for discrimination. Plaintiff, therefore, survives defendant's motion for summary judgment.

CONCLUSION
For the reasons stated, defendant's motion for summary judgment is DENIED.


833 F.2d 310
Levendag (Carel W., Jewel E.)v.Dean Witter Reynolds, Inc.
NO. 86-2513
United States Court of Appeals,Fourth Circuit.
OCT 26, 1987
Appeal From:  D.S.C., 633 F.Supp. 131

1
AFFIRMED.


879 A.2d 1086 (2005)
388 Md. 404
Board of Educ.
v.
Heister.
Court of Appeals of Maryland.
Granted August 10, 2005.
Petition for writ of certiorari granted on the motion of this Court.


123 Ga. App. 89 (1970)
179 S.E.2d 548
BLACKMON
v.
ROSS.
45620.
Court of Appeals of Georgia.
Argued September 9, 1970.
Decided December 4, 1970.
*91 Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, William L. Harper, Timothy J. Sweeney, Assistant Attorneys General, for appellant.
Mitchell & Mitchell, Warren N. Coppedge, Jr., William T. Boyett, for appellee.
WHITMAN, Judge.
Howard Ross, as corporate officer of Signet Carpet Company, was assessed by the State Revenue Commissioner for a sale and use tax liability, plus a delinquency penalty and interest. See Code Ann. § 92-3451a (Ga. L. 1960, p. 210).
Ross, as authorized by Code Ann. § 92-8446 (Ga. L. 1937-38, Ex. Sess., pp. 77, 100; 1943, pp. 204, 206, 208) appealed to the superior court. When the matter came on for trial, and after selection of a jury, the trial court ruled, over the Commissioner's objection, that the burden of proof and the burden of going forward with the evidence were on the Commissioner.
The Commissioner introduced a certified copy of the assessment which was admitted without objection. The Commissioner also called Rufus Buchanan as a witness, who testified he was the *90 auditor of the Sales and Use Tax Unit of the Department of Revenue who had made the initial determination to assess and testified further as to the procedure followed by him in making the audit.
Following the testimony of the auditor, the Commissioner rested his case, and Ross moved, without introducing any evidence, for a directed verdict in his favor, claiming that the Commissioner had failed to establish a prima facie case as to each of the elements required to establish liability under Code Ann. § 92-3451a.
The court granted the motion and directed a verdict in favor of Ross. The Commissioner has appealed from the judgment entered thereon, enumerating the same as error, along with the ruling as to burden of proof and the ruling on the motion for directed verdict. Held:
We reverse. The case is controlled by Hawes v. LeCraw, 121 Ga. App. 532 (174 SE2d 382), wherein it was held, citing statutory and case law, that an assessment such as the one here involved is deemed to be "prima facie correct," and that where the assessed party invokes the appeal procedure to the superior court to contest the validity of the assessment, which is a de novo proceeding, he comes into court in the status of a plaintiff who has the burden of proof, while the Commissioner occupies the status of a defendant, who by transmitting the record showing the fact of the assessment, has provided sufficient answer to entitle him to his day in court on the merits to rebut whatever proof the other party may offer to support his contention that he is not liable for the tax deficiency.
Accordingly, the lower court erred in ruling over objection that the burden of proof in the matter was upon the Commissioner, and, further, in directing a verdict for Ross, there being no evidence whatever by him that the assessment was not correct or that he was not liable thereon. There is no conflict between the LeCraw case, supra, which we follow, and Undercofler v. White, 113 Ga. App. 853 (149 SE2d 845), as the appellant contends.
Judgment reversed. Bell, C. J., and Quillian, J., concur.


676 F.2d 205
28 Fair Empl.Prac.Cas.  1127,28 Empl. Prac. Dec. P 32,659Joseph K. LOCKE, Plaintiff-Appellant,v.COMMERCIAL UNION INSURANCE COMPANY, DIVISION OF COMMERCIALUNION ASSURANCE COMPANIES, LTD., Defendant-Appellee.
No. 81-5047.
United States Court of Appeals,Sixth Circuit.
Argued March 15, 1982.Decided April 20, 1982.Rehearing Denied May 19, 1982.

Robert K. Salyers, Olson, Baker & Salyers, Louisville, Ky., for plaintiff-appellant.
Edgar Zingman, Jon Fleischaker, Louisville, Ky., for defendant-appellee.
Before LIVELY and JONES, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.

1
The plaintiff appeals from summary judgment for the defendant in this action where he alleged he was discharged on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.  After nearly 20 years as an employee of the defendant, the plaintiff was terminated in 1979 shortly after reaching the age of 55.  After giving the required notice to the Secretary of Labor in accordance with 29 U.S.C. § 626(d), he brought this action.

2
Both parties conducted discovery after which the defendant filed a motion for summary judgment.  The district court held a pretrial conference at which it granted the plaintiff's motion for an extension of time in which to respond to the motion for summary judgment.  When the plaintiff did not submit any affidavits or other response to the motion for summary judgment for some ten weeks following the pretrial conference, the court directed plaintiff's counsel to submit an affidavit showing his apparent inability to produce an affidavit or other response to the motion.  The affidavit filed by plaintiff's counsel stated that the evidence in support of the allegations of the complaint was in the possession of the defendant and that the defendant had failed to answer interrogatories fully.

3
The district court then granted summary judgment for the defendant and filed an opinion in which he stated that the plaintiff had failed to establish a prima facie case of age discrimination.  The district court referred to the plaintiff's deposition in which he stated that he knew of no other reason why he was terminated except his age, but offered no evidentiary support for his conclusion that age was the cause of his discharge.  The affidavit which the defendant had filed in support of its motion for summary judgment described a number of inadequacies which the defendant had found in plaintiff's work and set forth specific instances in which the defendant had considered the plaintiff's job performance unsatisfactory.  The district court concluded that the conclusory statement of plaintiff's deposition concerning his discharge was not sufficient to withstand a motion for summary judgment supported by the affidavit of the defendant and that plaintiff's failure to respond as required by Rule 56(e), Fed.R.Civ.P., or to file an affidavit sufficient to satisfy Rule 56(f) made summary judgment appropriate.

4
The plaintiff did nothing more than state his conclusion that he was terminated because of his age.  To permit this single statement to constitute a prima facie case would place on employers a burden which Congress never intended.  There is no automatic presumption that every termination of an employee between the ages of 40 and 70 results in a violation of the Age Discrimination in Employment Act.  Yet to permit a plaintiff to shift the burden to the defendant of justifying a termination on such a conclusory statement would have this effect.  See Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 (6th Cir. 1980); Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir. 1982).

5
The judgment of the district court is affirmed.

6
NATHANIEL R. JONES, Circuit Judge, dissenting.

7
Because I believe that the record before the district court raised a genuine issue of material fact, I dissent.

8
The majority omits an important fact when it describes the affidavit filed by plaintiff's counsel in opposition to the motion for summary judgment as stating only that the evidence in support of the allegations of the complaint was in the possession of the defendant and that the defendant had failed to answer interrogatories fully.  The affidavit also referred the district court to a deposition of the plaintiff, stating that in light of this deposition an affidavit by plaintiff in response to defendant's motion for summary judgment would duplicate prior testimony and was thus unnecessary.  Plaintiff's deposition was properly before the district court on the motion for summary judgment, Fed.R.Civ.P. 56(c), and indeed the district court purported to rely upon the deposition in granting the motion.

9
In his deposition, plaintiff made the following sworn statements: (1) the Company's minimum retirement age was 55; (2) shortly after reaching the age of 55, he was terminated and began to receive pension checks for early retirement; (3) he had previously enjoyed a number of promotions and pay increases, including a raise in the annual amount of $2,300 granted six months prior to his termination; (4) the termination came without any warning; and (5) prior to the termination, he "had not received any complaints about the performance of the work of any significance certainly from anyone," and had, in fact, been complimented on his job performance by the "home office" shortly before his termination.

10
In an action brought under the Age Discrimination in Employment Act (ADEA), the ultimate burden that plaintiff must meet is to show that age was a determining factor in his or her discharge.  Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir. 1975).  However, at the summary judgment stage of the proceedings it was defendant, as movant, who had "the burden of showing conclusively that there exists no genuine issue of material fact."  Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979).  In determining whether defendant met his burden, the district court was required to read the evidence together with all inferences to be drawn therefrom in the light most favorable to the party opposing the motion.  Id.

11
Defendant attempted to satisfy its burden by reciting in an affidavit various incidents which allegedly demonstrated that plaintiff was an unsatisfactory employee.  The district court concluded that "all the evidence points to the conclusion that plaintiff's ultimate termination was due to these numerous employment-related incidents."  But plaintiff's sworn deposition testimony, which the district court was obliged to consider, Smith v. Hudson, supra at 64, expressly controverted this claim of poor job performance.  Since a genuine issue of material fact was thereby raised, summary judgment should have been denied.  Instead, the district court granted summary judgment with the remark that "All the defendant's evidence strongly indicates that 'good cause' existed for plaintiff's discharge."  (Emphasis added.)  Thus it appears that the district court simply chose to credit defendant's version of the facts.  This was error, for on a motion for summary judgment, the court is not permitted to rule on the credibility of the material that is presented.  Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628-29, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944).

12
Rather than focusing upon the factual dispute regarding job qualifications, the district court appeared to pass on the ultimate issue of the employer's intent.  This, too, was improper.  Cases involving questions of motive or intent are normally not suited to disposition on summary judgment.  First National Bank v. Cities Service, 391 U.S. 253, 284-85, 88 S.Ct. 1575, 1590, 20 L.Ed.2d 569 (1968); Smith v. Hudson, 600 F.2d 60, 66 (6th Cir. 1979).  And as stated in EEOC v. Southwest Texas Methodist Hospital, 606 F.2d 63, 65 (5th Cir. 1979), "(w)hen dealing with employment discrimination cases, which usually necessarily involve examining motive and intent ..., granting of summary judgment is especially questionable."  Thus, in Haydon v. Rand Corp., 605 F.2d 453 (9th Cir. 1979), the court reversed a summary judgment in favor of defendant in an age discrimination case quite similar to the instant case.  While the court noted that defendant had "made a substantial showing ... that key management personnel had been dissatisfied with (plaintiff's) job performance," it found that plaintiff "presented a material factual dispute concerning whether Rand's dissatisfaction with (plaintiff's) work was merely a pretext to discriminate against him because of his age," making summary judgment improper.  605 F.2d at 454-55.

13
The district court, as well as the majority opinion on appeal, misconceives the role of a prima facie case in ADEA actions.  The district court stated that "the initial burden (is) upon plaintiff to prove that his employment was terminated because of his age."  This statement transparently confuses the elements of plaintiff's prima facie case with plaintiff's ultimate burden of proving age discrimination.

14
This Circuit has not articulated what a plaintiff must prove to establish a prima facie case that his discharge violated the ADEA.  See Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975) (declining to apply guidelines established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to age discrimination cases).  However, it appears that every other circuit which has considered the question has concluded that McDonnell Douglas guidelines are applicable; a plaintiff alleging age discrimination establishes a prima facie case upon proof that 1) he was in the protected group, 2) he was performing his job at a level that met his employer's legitimate expectations, 3) he was nonetheless fired, and 4) his employer sought someone to perform the same work after he left.  Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir. 1979); Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3rd Cir. 1977) cert. denied 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); Smith v. Flax, 618 F.2d 1062, 1066 n.3 (4th Cir. 1980); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 735-36 (5th Cir. 1977); Cova v. Coca-Cola Bottling Co., 574 F.2d 958, 959-60 (8th Cir. 1978); Kentroti v. Frontier Airlines, Inc., 585 F.2d 967, 969 (10th Cir. 1978).

15
Here the employer disputed one of the elements of plaintiff's prima facie case by alleging that plaintiff's job performance was unsatisfactory.  Plaintiff was not required to conclusively establish his prima facie case at the summary judgment stage; it suffices that a factual issue is raised.  Whether plaintiff was performing satisfactorily then becomes a question for the trier of fact.  See Loeb v. Textron, supra at 1018.  It is this existence of a genuine issue of fact, not the existence or nonexistence of a prima facie case, which makes the instant grant of summary judgment improper.

16
Contrary to the suggestion of the majority, no one contends that the mere conclusory claim of age discrimination insulates plaintiff from summary judgment or establishes plaintiff's prima facie case.  Had plaintiff's employer established, for example, that plaintiff was discharged pursuant to a uniform policy mandating the discharge of all employees engaged in certain misconduct, mere allegations of unlawful discrimination would not raise a factual issue or establish a prima facie case.  See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974).  Here, however, plaintiff has raised a material issue of fact regarding the lack of job qualifications alleged by defendant's affidavits.

17
I would reverse the judgment below and remand the case for trial.


J-S30036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RUBEN GONZALEZ

                            Appellant                   No. 1077 EDA 2015

            Appeal from the Judgment of Sentence March 10, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001498-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 10, 2016

        Appellant Ruben Gonzalez appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his open

guilty plea to aggravated assault and conspiracy to commit aggravated

assault.1 We affirm and grant counsel’s petition to withdraw.

        At his guilty plea hearing, Appellant stipulated to the following facts:

           [O]n October 24[,] 2012[,] the complaining witness,
           Christopher Corisdeo [(“Victim”),] was high on PCP and
           walking down the [1900] block of East Dauphin Street….
           [Victim] was flailing his arms and he [struck] one of the
           codefendants in the face. That codefendant is Myleidi
           Rodriguez. Ms. Rodriquez at the time was the girlfriend of
           [Appellant]….

____________________________________________

1
    18 Pa.C.S. §§ 2702(a) and 903(c), respectively.
J-S30036-16

            As a result of witnessing that, [Appellant] along with
            several codefendants struck the victim.      [V]ictim was
            knocked to the ground immediately.        The defendants,
            Brandon Baez, Melvin Soto, Frank Justiniano, Aaron Webb,
            and Alex Webb proceeded to kick, punch, and stomp
            [Victim] in his face. [Victim] was dragged to an empty lot
            at the corner of Dauphin and Emerald Streets where the
            assault continued. Responding officers found [Victim’s]
            body in a pool of blood. One of his eyes had fallen out of
            the socket. One of the codefendants, Mr. Frank Justiniano,
            was observed by witnesses and several of the
            codefendants gave statements saying that Mr. Justiniano
            picked up a cinder block at the end of the assault and
            dropped the cinder block on [Victim’s] head.

            Every bone in [Victim’s] face was fractured. He had to
            have his entire face reconstructed with titanium plate.
            [H]e had over 18 hours [of] surgery and now two years
            later he still suffers serious side effects including seizures,
            …serious     cognizant     delays,   memory      issues,   and
            depression.

N.T., Guilty Plea, 12/02/2014, at 7-8.

      On January 11, 2013, a grand jury indicted Appellant with attempted

murder, aggravated assault, robbery, possession of an instrument of crime,

and conspiracy to commit those crimes.          On December 2, 2014, Appellant

completed a written guilty plea, and the court conducted an oral guilty plea

colloquy.      In exchange for pleading guilty to aggravated assault and

conspiracy to commit aggravated assault, the other charges against

Appellant were nolle prossed. Appellant indicated on his written guilty plea

that he was aware he could go to prison for twenty (20) to forty (40) years.

      On March 10, 2015, the court sentenced Appellant to six (6) to twenty

(20) years’ incarceration for aggravated assault and three (3) to twenty (20)

                                         -2-
J-S30036-16

years’ incarceration for conspiracy.             The court imposed the sentences

consecutively, resulting in an aggregate sentence of nine (9) to forty (40)

years’ incarceration.

       On March 17, 2015, Appellant filed a motion to withdraw his guilty

plea and for reconsideration of sentence, claiming he did not know his

sentences could be imposed consecutively.             On April 13, 2015, before the

court had ruled on this motion, Appellant filed a motion to have his appellate

rights re-instated nunc pro tunc, because he believed he had missed the

deadline to file a timely appeal.              That same day, the court reinstated

Appellant’s appellate rights nunc pro tunc, and Appellant filed a timely notice

of appeal on April 14, 2015.2 On April 15, 2015, the court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and he timely complied on April 20, 2015.

       On October 26, 2015, Appellant’s counsel filed a petition for leave to

withdraw along with an Anders brief.

____________________________________________

2
  Neither the docket nor the certified record reflects that the court ruled on
Appellant’s motion to withdraw his guilty plea and for reconsideration of
sentence. In its opinion, however, the trial court states: “The motions were
denied.” Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 1. If
the trial court did not rule on Appellant’s post sentence motion, it would
have been denied by operation of law July 15, 2015. See Pa.R.Crim.P.
720(B)(3)(a). Because the trial court indicated that it denied Appellant’s
motion and because it reinstated Appellant’s appellate rights nunc pro tunc,
we deem this appeal properly before us, despite the ambiguous procedural
history.

                                           -3-
J-S30036-16

      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa.2009).    Prior to withdrawing as counsel on a direct appeal under

Anders, counsel must file a brief that meets the requirements established

by our Supreme Court in Santiago. The brief must:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.       Counsel must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her right to “(1) retain new counsel to pursue the appeal;

(2) proceed pro se on appeal; or (3) raise any points that the appellant

deems worthy of the court’s attention in addition to the points raised by

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007).         Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

                                     -4-
J-S30036-16

fact, wholly frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).
     Here, counsel filed a petition for leave to withdraw as counsel along

with an Anders brief and a letter advising Appellant of his right to obtain

new counsel or proceed pro se to raise any points he deems worthy of the

court’s attention in addition to the issues raised in the Anders brief. The

petition states counsel determined there were no non-frivolous issues to be

raised on appeal, notified Appellant of the withdrawal request, supplied him

with a copy of the Anders brief, and sent him a letter explaining his right to

proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit.          In the

Anders brief, counsel provides a summary of the facts and procedural

history of the case with citations to the record, refers to evidence of record

that might arguably support the issue raised on appeal, provides citations to

relevant case law, and states his conclusion that the appeal is wholly

frivolous and his reasons therefor.        See Anders Brief, at 7-9, 13-19.

Accordingly,   counsel     has   substantially   complied   with   the   technical

requirements of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues raised

in the Anders brief:

         WHETHER [APPELLANT’S] GUILTY PLEA WAS A KNOWING
         AND VOLUNTARY PLEA[?]

                                       -5-
J-S30036-16

           WHETHER THE TRIAL COURT SHOULD HAVE PERMITTED
           [APPELLANT] TO WITHDRAW HIS GUILTY PLEA WHERE
           IMMEDIATELY AFTER IMPOSITION OF SENTENCE AT THE
           BAR OF THE COURT [APPELLANT] ORALLY REQUESTED
           WITHDRAWAL[?]

Anders Brief at 6. 3

        Appellant claims the trial court abused its discretion by denying his

motion to withdraw his guilty plea, after imposition of sentence, because he

did not enter into it knowingly and voluntarily. We disagree.

        This Court’s scope of review of a trial court’s ruling on a motion to

withdraw a plea is to review the record of the plea and any post-sentence

proceeding.      See Commonwealth v. Moser, 921 A.2d 526, 528-530

(Pa.Super.2007). Our standard of review is whether the trial court abused

its discretion. Id. at 530.

        “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”      Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super.2013)

____________________________________________

3
    Appellant also listed the following issue in the Anders Brief:

           WHETHER THERE IS ANYTHING IN THE RECORD THAT
           MIGHT ARGUABLY SUPPORT THE APPEAL THAT OBVIATES
           A CONCLUSION THAT THE APPEAL IS FRIVOLOUS[?]

Anders Brief at 6. This issue reflects counsel’s request to withdraw, which
we grant herein after a discussion of Appellant’s other issues, infra.

                                           -6-
J-S30036-16

(quoting      Commonwealth      v.   Anderson,   995    A.2d   1184,     1192

(Pa.Super.2010), appeal denied, 9 A.3d 626 (Pa.2010) (alterations in

original)).     A guilty plea colloquy must “affirmatively demonstrate the

defendant understood what the plea connoted and its consequences.”        Id.

(quoting Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)).

No absolute right to withdraw a plea exists. Commonwealth v. Flick, 802

A.2d 620, 623 (Pa.Super.2002). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d

1209, 1212 (Pa.Super.2008).

      The standard for withdrawal of a guilty plea after the imposition of

sentence is much higher than the standard applicable to a pre-sentence

motion to withdraw.       Commonwealth v. Byrne, 833 A.2d 729, 737

(Pa.Super.2003).     A defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw

the plea.     Id. “[D]isappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.” Id. “Manifest injustice may

be established if the plea was not tendered knowingly, intelligently, and

voluntarily.”      Commonwealth      v.    Hodges,   789   A.2d   764,    765

(Pa.Super.2002); see also Pa.R.Crim.P. 590(a)(3). “Determining whether a

defendant understood the connotations of his plea and its consequences

                                     -7-
J-S30036-16

requires an examination of the totality of the circumstances surrounding the

plea.” Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super.2007).

      “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”            Commonwealth v.

Morrison, 878 A.2d 102, 107 (Pa.Super.2005), appeal denied, 887 A.2d

1241 (Pa.2005); Comment to Pa.R.Crim.P. 590(A)(2).                A written plea

colloquy that is read, completed and signed by the defendant and made part

of   the   record   may   serve   as   the   defendant’s   plea   colloquy   when

supplemented by an oral, on-the-record examination. Morrison, 878 A.2d

at 108 (citing Comment to Pa.R.Crim.P. 590). Even if “there is an omission

or defect in the guilty plea colloquy, a plea of guilty will not be deemed

invalid if the circumstances surrounding the entry of the plea disclose that

the defendant had a full understanding of the nature and consequences of

his plea and that he knowingly and voluntarily decided to enter the plea.”

Fluharty, 632 A.2d at 315. Further, “where the record clearly demonstrates

that a guilty plea colloquy was conducted, during which it became evident

that the defendant understood the nature of the charges against him, the

voluntariness of the plea is established.” Moser, 921 A.2d at 529.

      Here, in denying Appellant’s petition to withdraw his guilty plea, the

trial court reasoned:

                                       -8-
J-S30036-16

          Appellant both signed the colloquy form, and later testified
          in court that he understood the terms of his plea. N.T.,
          12/02/2014, at 2.      Appellant verbally verified that he
          understood the rights he was giving up. Id. at 3. He
          stated that he understood he was submitting an “open
          plea”[4] and that sentencing would be at the discretion of
          the judge following presentence and mental health
          evaluations. Id. at 2. He stated in the colloquy form and
          before this court that he understood that the sentence
          could be up to forty years’ imprisonment. Colloquy, at 6;
          N.T., 12/2/2014, at 3. Appellant was questioned by this
          court prior to sentencing to ensure that he understood and
          accepted the terms of the plea arrangement. Id. at 3. He
          was sentenced in accordance with the sentencing
          guidelines, as well as within the range of possible
          sentences indicated in the colloquy form. Upon hearing
          that his sentences were to be served consecutively,
          Appellant immediately objected and indicated he would like
          to withdraw his guilty plea. N.T., 3/10/2015.

                                       *       *   *

          It is the opinion of this court that the guilty plea was
          entered into with a full understanding of its terms. No
          manifest injustice is created by refusing to allow Appellant
          to use a guilty plea to “test the waters” of sentencing only
          to renege when an appropriate sentence within the
          sentencing guidelines is handed down.
____________________________________________

4
    We observe:

       [i]n an open plea agreement, there is an agreement as to the
       charges to be brought, but no agreement at all to restrict the
       prosecution’s right to seek the maximum sentences applicable to
       those charges. At the other end of the negotiated plea
       agreement continuum, a plea agreement may specify not only
       the charges to be brought, but also the specific penalties to be
       imposed.

Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super.1994) (quoting
Commonwealth v. Porreca, 567 A.2d 1044, 1047 (Pa.Super.1989), rev'd
on other grounds in 595 A.2d 23 (Pa.1991)).

                                           -9-
J-S30036-16

Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 5, 6.

      The trial court did not abuse its discretion in denying Appellant’s

request to withdraw his guilty plea that he entered into knowingly,

intelligently, and voluntarily.   In return for his open plea to aggravated

assault and conspiracy, Appellant received the benefit of all other charges

being nolle prossed.    Appellant knew he could receive a maximum of 40

years’ incarceration.     Moreover, his minimum sentence of 9 years’

incarceration is far less than what he could have received. Appellant cannot

now escape the terms of the bargain into which he voluntarily entered.

      Further, after an independent review of the record, we agree with

Counsel that this appeal is wholly frivolous.

      Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016

                                     - 10 -