                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 96-3363
                                    ___________

Jack E. McCoy,                          *
                                        *
      Appellant,                        * Appeal from the United States
                                        * District Court for the Southern
      v.                                * District of Iowa.
                                        *
American Federation of Labor and        *      [Unpublished]
Congress of Industrial Organizations,   *
and AFL-CIO Retirement Plan,            *
Employer Identification Number          *
XX-XXXXXXX,                             *
                                        *
      Appellees.                        *
                                   ___________

                              Submitted: May 21, 1997

                                   Filed: July 23, 1997
                                    ___________

Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                       ___________

PER CURIAM.

       Jack E. McCoy asserted a number of causes of action against the defendant
union in his complaint, but appeals only from the trial court's order entering judgment
against him on his claim that the union discriminated against him on account of his age
in refusing to transfer him to another job, in violation of 29 U.S.C. §§ 621-634 and
Iowa Code Ann. §§ 216.1-216.20. The trial court, after a full bench trial, found that
Mr. McCoy had not made out a prima facie case because he had not proved that he was
qualified for the position to which he requested a transfer. See Clements v. General
Accident Ins. Co., 821 F.2d 489, 491 (8th Cir. 1987). After a review of the record, we
cannot say that the trial court clearly erred in reaching this factual conclusion.

       Mr. McCoy contends that we ought to review this record de novo, rather than
for clear error, because the trial judge who rendered judgment did not preside during
the first part of the trial and did not, therefore, have an opportunity to judge the
demeanor of the witnesses. We reject this contention. First of all, Mr. McCoy does
not direct our attention to any decided case that supports his novel argument, and we
know of none. Second, Mr. McCoy consented to the procedure that was employed in
this case. Most importantly, perhaps, the rule that Mr. McCoy urges us to adopt might
well undermine the utility of agreements between parties to a lawsuit allowing a trial
court to decide a case on the basis of a written record, including depositions and
affidavits, a result to which we would not like to contribute.

      We therefore affirm the judgment of the trial court. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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