* Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20435

THOMAS E. LOGANS,

Plaintiff-Appellant,

VERSUS

GTECH CORPORATION, ET AL,

Defendants,

GTECH CORPORATION; GTECH Texas,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-94-1813)

March 26, 1997

Before REYNALDO G. GARZA, EMILIO M. GARZA, and DeMOSS, Circuit

Judges.

PER CURIAM: *

Thomas E. Logans brought this employment discrimination suit

against GTECH Corporation (GTECH), GTECH Texas and other1 Logans also sought damages for wrongful discharge, defamation,

and false-light invasion of privacy under Texas common law and T EX

.

R EV

. C IV

. S TAT

. A NN

. art. 5430. Logans does not contest the district

court’s order granting summary judgment as to these claims.

2 individuals employed by GTECH, alleging violations of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e e t seq. (Title

VII), the Civil Rights Ac ts of 1866 and 1871, 42 U.S.C. §§ 1981,

1985 (§ 1981), and the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq. (ADEA). 1 The district court disposed of this

case by issuing a series of orders granting partial summary

judgmen t on the various claims. Logans filed a timely notice of

appeal. Finding no error, we affirm.

BACKGROUND

GTECH has operated certain aspects of the Texas State Lottery

si nce the lottery’s inception in April 1992. GTECH is a wholly

owned subsidiary of GTECH Holdings Corporatio n, a company whose

stock is publicly traded. GTECH has no publicly held shares and is

a Delaware Corporation qualified to do business in Texas. GTECH

Texas, a Texas Corporation, is an affiliate of GTECH.

GTECH hired Logans in April 1992 to be the Sales Manager for

the Houston District. Logans, an African-American, was 49 years

old when he was hired. Logans worked for GTECH until he was fired

in May 1993 for allegedly participating in an illegal kickback

scheme which defrauded the company.3

Jerri Lee, another GTECH employee, told the company that she,

Logans, and Claudia LeBlanc had conspired to steal money from GTECH

by manipulating a company check request that was to be used to pay

for the Houston office’s 1992 Christmas party. Jerri Lee then

voluntarily resigned. Ramon Rivera, GTECH’s Manager of Human

Resources, and Deidre Spencer, the State Sales Manager, followed up

on Lee’s allegations by conducting an investigation into this

i ncident which later confirmed Lee’s story. As a result of the

investigation, Logans and LeBlanc were discharged on May 27, 1993.

Logans was replaced by Calvin Hud son, a 30-year-old AfricanAmerican male.

Logans denied any knowledge of, or participation in, the

kickback scheme. He contends that GTECH fired him in retaliation

for his persistent efforts to fight for the rights of minority

employees at GTECH. Logans asserts that, in the summer of 1992, he

engaged in protected act ivity by standing up for the right of a

black female employee to be free from racial discrimination by

making sure that GTECH promoted her in accordance with law. Logans

also contends that he spoke out against alleged sexual harassment

committed by GTECH’s general manager.

Logans contends that, in March 1993, he reported acts of

racial discrimination by GTECH Corporation’s security manager. In

April 1993 , Logans contends that he supported employees who had

been sexually har assed by reporting that Jim Hosker, GTECH’s

Gen eral Manager, had made crude and sexist remarks to female4

employees. Logans also reported Hosker for alleged acts of racial

discrimination. Logans alleges that he then began counseling

employees to document incidents of racial discrimination and sexual

harassment within GTECH.

Logans filed suit against GTECH Corporation, GTECH Texas, and

others on May 26, 1994. Logans filed an amended complaint on

August 25, 1994, and the district court issued summonses for both

GTECH Corporation and GTECH Texas. Logans then served both

companies with the complaint and a summons. On September 14, 1994,

GTECH Corporation filed an answer. However, the record does not

reflect that GTECH Texas ever filed an answer. GTECH contends that

GTECH Texas was never properly served and is, therefore, not a

party to this case.

The district court then issued a series of orders dismissing

individual defendants and granting partial summary judgment.

First, the district court granted the individual defendants’ motion

to dismiss Logans’ Title VII and ADEA claims against them based on

the fact that Logans could not show that these individuals were

statutory employers. Then, on July 26, 1995, the district court

granted partial summary judgm ent dismissing (1) Logans’ wrongful

termination claim under Texas law ; (2) his retaliation and

discrimination claims under Title VII; (3) his 42 U.S.C. § 1981

claim of race discrimination; and (4) Logans’ 42 U.S.C. § 1985

claim. On November 17, 1994, the district court entered another

partial summary judgment order dismissing Logans’ claim under the5

ADEA. This order resolved all remaining issues of Logans lawsuit.

Logans appealed. GTECH filed a motion to dismiss the appeal

on February 16, 1996. On March 27, 1996, this Court issued an

order which granted GTECH’s motion in part, denied it in part, and

remanded the case back to the district court with instructions to

enter a final judgment pursuant to F ED

. R. C IV

. P. 58. We then

held that the Appellant, Logans, coul d appeal from that judgment

within 30 days of the order.

In the interim, Logans file d a motion for default judgment

against GTECH Texas for failing to file an answer to his complaint.

The district court struck Logans’ request for entry of default on

the grounds that Loga ns failed to serve the motion for entry of

default on all parties to the case.

On April 2, 1996, the district court entered a final judgment

in accordance with this Court’s order dismissing Logans’ entire

case pursuant to Rule 58. Logans now appeals contending that the

district court erred in granting summary judgment against his

retaliatory discharge claims and against his ADEA c laim. Logans

also contends that the district court erred in striking his request

for entry of default against GTECH Texas.

ANALYSIS

We review a district court’s decision to grant summary6

judgment using the familiar de novo standard. S ee Cantu v. Rocha

,

77 F.3d 795, 805 (5th Cir. 1996). Logans first argues that the

district court erred by sua sponte granting summary judgment on his

retaliation claims without affording him notice and an opportunity

to respond as required by F ED

. R. C IV

. P. 56(c). Logans maintains

that GTECH’s motions for summary judgment were no t specifically

directed at his retaliation claims and, as a resu lt, he had no

indication that the retaliation claims were at issue.

This Court has strictly en forced the notice requirements of

F ED

. R. C IV

. P. 56(c). S ee Nowlin v. Resolution Trust Corp.

, 33

F.3d 498, 504 (5th Cir. 1994). Rule 56(c) provides that the

district court must give a party opposing summary judgment ten days

notice before entering judgment. The strict notice requirements of

Rule 56(c) have not been mechanically applied to those instances

in which a party has received informal notice that a particular

claim is at issue and has had an opportunity to present evidence

opposing summary judgment on that claim. S ee Celotex Corp. v.

Catrett

, 106 S. Ct. 2548, 2554 (1986) (“district courts are widely

acknowledged to possess the power to enter summary judgments s ua

sponte , so long as the losing party was on notice that she had to

come forward with all of her evidence.”) ; Howell Petroleum Co. v.

Leben Oil Corp.

, 976 F.2d 614, 617 (10th Cir. 1992) (recognizing

that an issue raised defensively, and not in the movant’s motion

for summary judgment, was sufficient to notify the non-movant to7

come forward with all evidence relevant to that issue for summary

judgment purposes).

GTECH’s March 3, 1995, motion for summa ry judgment did not

mention retaliation or refer to 42 U.S.C. § 2000e-3(a), the

retaliation portion of the statute. However, Logans’ response,

entered on March 24, 1995, specifically addressed retaliation. The

response provided a factual backgro und for Logans’ retaliation

claim. He also argued that he made a prima facie case of

discrimination and retaliation. In a response filed on April 3,

1995, G TECH noted that the only evidence presented to support

Logans’ claims of retaliation and discrimination was Logans’ selfserving decla ration and its conclusory statements. The district

court then entered its memorandum opinion and order granting

partial summary judgment as to Logans’ retaliation claims on July

27, 1995.

From April 3, 1995, until July 27, 1995, Logans had ample

opportunity to file supplemental briefing or submit additional

evidence to support his retaliation claim. Logans was on notice

that the retaliation issue was before the court bas ed on his own

response to GTECH’s motion for summary judgment as well as GTECH’s

reply brief. Therefore, we find no merit in Logans’ contention

that the district court erred in sua sponte ente ring summary

judgment on his retaliation claim. Logans placed the retaliation

issue before the court by raising it in his response to GTECH’s8

summary judgment motion. GTECH then filed a reply brief which also

raised retaliation as an issue ripe for summary judgment. The

district court then waited almost four months to grant summary

judgment agai nst Logans. Logans never submitted additional

evidence to support his claim or filed supplemental bri efing to

raise a genuine issue of fact concerning his claim of retaliation.

Even if we assume that Logans never received proper notice

pursuant to Rule 56(c), we have reviewe d the district court’s

failure to give proper notice for harmless error. See Nowlin , 33

F .3d at 504. “When there is no notice to the nonmovant, summary

judgment will be considered ha rmless i f the nonmovant has no

additional evidence or if all of the nonmovant’s add itional

evidence is reviewed by the appellate court and none of the

evidence presents a genuine issue of material fact.” I d

.

(quotations omitted) (emphasis original).

Logans relies completely on his affidavit and declara tion.

Other record references cited as support for his argument are taken

out of context and misquoted. After having reviewed the record in

this case, none of the evidence presented by Logans raises a

genuine issue of material fact and we, th erefore, affirm the

decision of the district court granting summary judgment in favor

of GTECH as to Logans’ retaliation claim.

Logans also contends that the district court erred in granting

summary judgment in favor of GTECH on his ADEA claims. 29 U.S.C.9

§ 623(a) makes it unlawful for an employer “to discharge any

individual or otherwise discriminate agai nst any individual with

respect to his comp ensation, terms, conditions, or privileges of

employment, because of such individual’s age.” To establish a

claim under the ADEA, Logans must show (1) that there was an

adverse employment activity and (2) there was a causal connection

between his age and the adverse employment action. S ee Holt v. JTM

Indus., Inc.

, 89 F.3d 1224, 1226 (5th Cir. 1996) . Logans had to

show that his age had “a determinative influence on the outcome.”

See Purcell v. Seguin State Bank and Trust Co. , 999 F.2d 950, 955

(5th Cir. 1993) (internal quotation omitted).

Logans maintai ns that GTECH’s proffered reasons for his

dismissal were false and merely a pretext for discrimination.

Logans argues that Hosker, who allegedly stated that GTECH was

favor able to young people, instructed Rivera and Spencer to get

LeBlanc to implicate Logans in the kickback scheme. Logans also

argues that GTECH decided to remove him before investig ating his

involvement in any kickback scheme and that GTECH admitted that the

investigation did not show that Logans was involved in the scheme.

In Rhodes v. Guiberson Oil Tools , 75 F.3d 989, 994 (5th Cir.

1996) (en banc), this Court explained that:

a jury issue will be presented and a plaintiff can

avoid summary judgment and judgment as a matter of

law if the evidence taken as a whole (1) creates a

fact issue as to wh ether each of the employer’s

stated reasons was what actually motivated the

employer and (2) creates a reasonable inference10 that age was a determinative factor in the actions

of which the plaintiff complains. The employer, of

course, will be entitled to summary judgment if the

evidence taken as a whole would not allow a jury to

infer that the actual reason for the discharge was

discriminatory.

After a complete review of the record, we find that the

evidence taken as a whole do es not create a fact issue as to the

GTECH’s actual motivation for firing Logans. Logans offers no

evidence to create a reasonable inference that age was a

determinative factor in his termination. GTECH investigated

Logans’ involvement in the kickback scheme before the company

suspended him, with pay, pending further investigatio n. No

evidence in the record so much as implies that LeBlanc was forced

to implicate Logans in this kickback scheme. Finally, nothing in

the record shows that GTECH’s reasons for terminating Logans were

false. The only evidence in the record to support Logans’ ADEA

claim is his self-serving declaration, subjective conclusions

contained in h is affidavit, and his misstatements of the record

itself. For the foregoing reasons, we affirm the decision of the

district court.

Finally, Logans argues that the district court erred in

striking his request for entry of default on the grounds that all

parties had not been served with such request. The district

court’s order stated:

After this Court granted summary judgment in favor

of the defendants, Logans requested that this Court

enter default judgment against GTECH Texas. Logans

cites Federal Rule of Civil Procedure 5(a) for the11 proposition that he need not serve this request on

any of the parties to this lawsuit. That rule,

however, only st ates that the “parties in default

for failure to appear” need not be served; it does

not address the other parties, who have not failed

to appear. The plaintiff’s request to enter

default[] is therefore STRICKEN for failure to

serve it upon all parties to the case.

Logans contends that a Rule 55(a) request for entry of default

does not require that a judgment of default be served on all

parties. Logans argues further that even if service was required

to all other parties to the lawsuit, they had been dismissed by the

district court’ s summary judgment orders and as such, were no

longer parties to this case.

While this argument presents an interesting issue of whether

a plaintiff must serve all defendants with its request for entry of

default against a party that has failed to answer, we find any

error by the district court, if one occurred, to be harmless.

Logans does not assert any claims against GTECH Texas different

from those brought against GTECH. Having found the exact claims

against GTECH to be without merit, and noting that Logans presents

no additional evidence to support any claim against GTECH Texas, we

find that the summary judgment was properly entered in favor of all

defendants in this case.

Even if we were to address the issue of whether requests for

entry of default must be served on all participating defendants,

Rule 5(a) of the Federal Rules of Civil Procedure provides that:

[ E]very order required by its terms to be s erved,

every pleading subsequent to the original complaint12 unless the court otherwise orders because of

numerous defendants, every paper relating to

discovery required to be served upon a party unless

the court otherwise orders, every written motion

other than one which may be heard ex parte, and

every written notice, appearance, demand, offer of

judgment, designation of record on appeal, and

similar paper shall be served on each of th e

parties. No service need be made on parties in

default for failure to appear except that pleading

asserting new or additional claims for relief

agai nst them shall be served upon them in the

manner provided for service of summons in Rule 4.

(emphasis added). While Rule 55 does not expressly state that

service of requests to enter defaults shall be served on other

parties, Rule 5(a) clearly requires that all written motions shall

be served on each of the parties. Logans did not serve GTECH

Corporation or the other defendants with his request for entry of

default against GTECH Texas. Further, no final judgment dismissing

GTECH or the other parties had been entered at the time of Logans’

request for default. As such, Logans contention that no parties

remained in the suit also fails. Because Rule 5(a) clearly

requires that all parties, except the defaulting party, are to be

served, the decision of the district court to strike Logans request

for entry of default is affirmed.

CONCLUSION

For the foregoing reasons, the decision of the district court

is, in all things,

AFFIRMED.