No. 07-16017 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SERRANO'S MEXICAN RESTAURANTS, LLC, d/b/a Serrano's Fine Mexican Food Restaurants, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona Civil Action No. 02-cv-1608-PHX _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S REPLY BRIEF _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791 Fax (202) 663-7090 susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SERRANO'S' ANSWER BRIEF OFFERS NO SUPPORT FOR JUDGE MARTONE'S DECISION TO VACATE JUDGE CARROLL'S NEW TRIAL ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .17 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . .19 TABLE OF AUTHORITIES FEDERAL CASES Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176 (9th Cir. 1989) . . . . . .6 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . . . . . . .13 Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) . . . . . . . . . 3, 5, 6 Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) . . . . . . . . . . . . . . 14 EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) . . . . . . . 8, 13 Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003) . . . . . . . . . . . . 15 Great N. Ry. Co. v. McLaughlin, 70 F. 669 (9th Cir. 1895) . . . . . . . . . 4, 5 Ind. Metal Prods. v. N.L.R.B., 442 F.2d 46 (7th Cir. 1971) . . . . . . . . . . . 14 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) . . . . . . 15 Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) . . . . . . . . . . . 4, 5 Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir. 1990) . . . . . . . . . . . .4 Patton v. County of Kings, 857 F.2d 1379 (9th Cir. 1988) . . . . . . . . . . . . 6 United States v. Carty, 453 F.3d 1214 (9th Cir.), reh'g en banc granted and decision vacated, 462 F.3d 1066 (9th Cir. 2006) . . . . . . . . . . . . . . . 5 United States v. Kellington, 217 F.3d 1084 (9th Cir. 2000) . . . . . . . . . 5, 6 Venegas v. Wagner, 831 F.2d 1514 (9th Cir. 1987) . . . . . . . . . . . . . . . 4, 5 Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2007) . . . . . . . . . . . .7 Weeks v. Bayer, 246 F.3d 1231 (9th Cir. 2001) . . . . . . . . . . . . . . . . . .16 Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . .5 FEDERAL RULES Fed. R. Civ. P. 52(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT SERRANO'S' ANSWER BRIEF OFFERS NO SUPPORT FOR JUDGE MARTONE'S DECISION TO VACATE JUDGE CARROLL'S NEW TRIAL ORDER. In our opening brief, the Equal Employment Opportunity Commission (EEOC) argued that Judge Martone, as the newly-assigned district court judge in this case, abused his discretion when he granted Defendant Serrano's Mexican Restaurants' untimely second motion for reconsideration and vacated the original judge's grant of a new trial. Judge Martone claimed he was merely "correct[ing] clear legal errors" committed by the first district court judge and "prevent[ing] the injustice and expense of subjecting the parties to a needless second trial." R.259 at 4 & n.2 (RE4a). As we explained in our opening brief, however, Judge Carroll, who presided over this trial, correctly determined that the jury's verdict was against the clear weight of the evidence. See EEOC's Opening Brief (EEOC Brf) at 19-31. Since Judge Carroll's order was not "clearly erroneous," Judge Martone had no proper grounds to disturb it. Id. at 31. We also explained that Judge Martone abused his discretion when he thereafter denied the EEOC's motion for reconsideration. Id. at 31-37. Judge Martone vacated Judge Carroll's new trial order based on a misperception that the EEOC conceded that the transfer mentioned by Ric Serrano would have accommodated Terra Naeve's religious beliefs. See R.259 at 10 (RE10a). In our motion for reconsideration, we clarified our position that only an unconditional transfer would have accommodated Naeve's religious beliefs, whereas the transfer Ric Serrano and Theresa Serrano-Keel discussed with Naeve was implicitly conditioned on Naeve's agreement to forego her religious convictions at the new location if the same situation should recur. R.262 at 3-5, 12-14 (RE49a-51a, 58a- 60a). As we explained, Serrano's foreclosed the option of transfer as soon as Naeve indicated she would not compromise her religious beliefs at the new location. See id.; EEOC Brf at 31-33 & nn. 11, 12. Thus, although Ric Serrano asserted during trial that he offered Naeve a transfer with no strings attached, the clear weight of the evidence demonstrates the contrary. We argued in our opening brief that Judge Martone abused his discretion when he refused to reconsider his decision after we clarified that his decision rested on a faulty factual premise. See id. at 33-37. Finally, we argued in our opening brief that, as between Judge Carroll's exercise of judicial discretion in granting a new trial and Judge Martone's exercise of judicial discretion in vacating Judge Carroll's order, this Court should defer to Judge Carroll. See id. at 38-41. A judge's grant of a new trial based on the "clear weight of the evidence" depends critically on the judge's first-hand familiarity with the entire trial evidence as well as the judge's observation of the witnesses' demeanor as they testified and his or her assessment of their credibility. Here, only Judge Carroll, having presided over the trial, could assess the witnesses' demeanor and credibility when weighing the testimony to determine whether the jury's verdict was against the clear weight of the evidence. See id. at 39. The policy considerations that underlie the "law of the case" doctrine likewise support Judge Carroll's prior determination. See id. at 39-41. Thus, even if this Court were to conclude that the deference this Court ordinarily accords a district court's exercise of discretion puts these two contrary district court rulings essentially in equipoise, the fact that Judge Carroll issued his ruling first, after having presided over the trial, and that it is well-supported by the trial evidence, would properly tip the balance in favor of deference to Judge Carroll. See id. at 41. Serrano's' Answer Brief does not address this latter point, stating only that "[t]he EEOC's attempt to focus this Court on one district judge's decision versus another's, ignores the critical role of the jury." Serrano's' Answer Brief (AnsBrf) at 12; see also id. at 13 (it was jury's role to determine whether Serrano's offered Naeve an accommodation that eliminated any conflict between her religious beliefs and Serrano's Management Code, and "jury's decision must be given primacy"). A jury's factfinding function is important to our judicial system, but a jury's findings are not sacrosanct. Indeed, "[a] trial court's ordering of a new trial . . . is not an uncommon feature of any trial which goes to verdict." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam). Although a trial judge should ordinarily accept a jury's findings out of a "respect for the collective wisdom of the jury and for the function entrusted to it," at the same time "the trial judge does not sit to approve miscarriages of justice." Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987); see also Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990) (trial judge is ultimately responsible for ensuring a party is not "a victim of a miscarriage of justice"). Consequently, when a jury's verdict is against the "great weight of the evidence," see Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1987), it is the trial court's proper function to set aside the verdict. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (when party against whom verdict was returned moves for a new trial, court has "duty" to weigh evidence as court saw it "and to set aside the verdict of the jury . . . where, in [the court's] conscientious opinion, the verdict is contrary to the clear weight of the evidence") (citation omitted); Great N. Ry. Co. v. McLaughlin, 70 F. 669, 676-77 (9th Cir. 1895) (it is trial court's duty, when verdict is clearly against weight of the evidence, to set verdict aside). And although, as Serrano's notes, AnsBrf at 18, the jury properly determines credibility in the first instance, a district court deciding a motion for a new trial based on the weight of the evidence is permitted to consider its own assessment of the witnesses' credibility. Landes, 833 F.2d at 1371.<1> The district court's exercise of this longstanding, common law authority is not "a denigration or usurpation" of the jury's function, because an order for a new trial "leaves the final decision in the hands of the jury." See Landes, 833 F.2d at 1371; United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (affirming district court's grant of new trial) (citations omitted). Thus, when Judge Carroll granted a new trial here based on the clear weight of the evidence, he was not usurping the jury's role, but merely exercising a judicial function that is an integral and longstanding part of litigation. See Allied Chem., 449 U.S. at 36; Molski, 481 F.3d at 729; McLaughlin, 70 F. at 676-77. And in weighing the trial evidence, Judge Carroll was permitted to consider that Ric Serrano's trial testimony contradicted his prior sworn statements on a crucial aspect of the case-Serrano's' alleged offer to transfer Naeve to another restaurant. See Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 190 (9th Cir. 1989) (upholding new trial where district court found testimony of appellant's witnesses not credible on key issue because they gave inconsistent testimony in prior depositions).<2> Judge Martone, on the other hand, purported to second-guess Judge Carroll's weighing of the evidence, without the benefit of having heard the evidence himself. See R.259 at 11 ("The jury's finding on an offer of an accommodation [i.e., transfer to another restaurant] is not against the clear weight of the evidence.") (RE11a). Of course, the trial transcript was available for Judge Martone to review, but this Court has noted that "reading the dry pages of the record" is a poor substitute for first-hand observation of witnesses. See, e.g., Kellington, 217 F.3d at 1097. More importantly, there is no indication Judge Martone even took this simple, essential step of reading the entire trial record before vacating Judge Carroll's order.<3> Serrano's' focus, in its Answer Brief, on the role of the jury offers no support for Judge Martone's extraordinary decision to depart from the law of this case and override the judgment of the trial judge concerning the weight of the trial evidence. With respect to the EEOC's other arguments, Serrano's agrees with much of the EEOC's position, departing on only a few, narrow points. Serrano's agrees, for example, that Judge Martone needed "good cause" to entertain Serrano's' untimely motion for reconsideration and disturb Judge Carroll's prior ruling. See AnsBrf at 8-10. Serrano's further acknowledges that the only "good cause" Judge Martone found here was his conclusion that Judge Carroll's new trial order was "clear error" and that a second trial would, therefore, constitute an "injustice." Id. at 9, 12; see R.259 at 4 & n.2 (RE4a); R.267 at 3 (RE16a). Serrano's also recognizes that, for a proposed accommodation to satisfy Title VII, it "must eliminate the alleged conflict between an employee's religious beliefs and an employment duty." AnsBrf at 14 (emphasis added) (citing EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988); other citation omitted); see EEOC Brf at 19. Serrano's correctly acknowledges the religious belief at issue here-Naeve's sincere belief that she was called to lead a Bible study for anyone who wanted to attend and that she could not turn away anyone who chose to participate. AnsBrf at 14; see, e.g., Tr.370-371, 395 (RE172a-173a, 184a). Serrano's also accurately notes-several times-that Naeve's religious beliefs did not require her to include subordinates in her Bible study; her beliefs simply prohibited her from turning them away. AnsBrf at 14-16, 19, 20 (Naeve said she did not need to have Serrano's employees in her Bible study to fulfill her calling to teach a Bible study for whomever attended); see, e.g., Tr.371 (RE173a); Tr.409:2-13 (same) (Serrano's' Supplemental Record Excerpts at 2). Serrano's argues, however, that because Naeve's religious beliefs did not require her to conduct a Bible study for her subordinates, her beliefs did not actually conflict with the Management Code of Conduct. See AnsBrf at 16. Serrano's further argues that it accommodated Naeve's religious beliefs in three separate ways: by proposing that Naeve's subordinates "attend another Bible study" immediately or "transition to another Bible study, over a period of time," id. at 20, and by allegedly offering Naeve an unconditional transfer that Naeve allegedly rejected. See id. at 16-19. Serrano's' contention that there was no conflict, as well as the two proposed "accommodations" that involved removing Naeve's coworkers from her Bible study, ignore the very aspect of Naeve's religious beliefs that is at issue here-that she could not turn anyone away who chose to attend the Bible study she led. Serrano's' latter contention-that it offered Naeve an unconditional transfer- finds no credible support in the trial record. First, Serrano's' assertion that "Naeve's religious beliefs did not conflict with Serrano's Code because her belief did not require her to include any subordinate employees in her Bible study group," id. at 16 (italics added and bold in original), is simply wrong and misses the point. The question at the heart of the EEOC's claim is whether Serrano's unlawfully failed to accommodate Naeve when Serrano's decided that its Management Code of Conduct conflicted with Naeve's religious belief that she should not turn anyone, including her coworkers, away from her Bible study. See EEOC Brf at 23-24 & n.8. It is undisputed that Naeve's coworkers chose to attend her Bible study, see, e.g., Tr.729:21-739:24 (Debra Mills' testimony) (Appellant's Further Excerpts of Record (FRE) 3-13); Tr.330:22-335:18, 887:15-888:3 (Naeve's testimony) (RE158a-163a, 264a-265a), and that after learning of this, Ric Serrano advised Naeve that studying the Bible with her subordinates violated the Code. See RE165a-168a, 175a, 179a (Naeve's testimony); RE226a-228a, 243a (Ric Serrano's testimony). Serrano's further acknowledges that Naeve's beliefs prevented her from turning away anyone who chose to attend her Bible study. See AnsBrf at 14; see also RE172a-174a, 181a- 184a (Naeve's testimony). Accordingly, there was a real conflict at issue here. Serrano's' hypothetical argument that "if no Serrano's employees attended Ms. Naeve's Bible study, . . . there would be no conflict between her religious beliefs and the Code," AnsBrf at 14, is completely beside the point. Indeed, Serrano's' repeated emphasis that Naeve's beliefs did not require her to have subordinates in her Bible study, and its suggestion that having the employees attend a different Bible study would accommodate any conflict, are puzzling. See, e.g., id. at 20-21 ("if the employees decided to attend another group, Ms. Naeve would have been able to fulfill her religious commitment") (emphasis added), see also id. at 14-16, 19. The Bible study led by Naeve was the one the employees chose to attend, and Serrano's never explains how Naeve might have accomplished the removal of these coworkers from her Bible study without violating her sincerely-held religious conviction that she not turn anyone away. Thus, the fact that Naeve did not need to lead a Bible study for her subordinates in no way eliminated or accommodated the conflict that existed between Naeve's sincere religious belief and Serrano's' interpretation of its Management Code. Judge Martone apparently recognized that requiring Naeve to bar her three coworkers from her Bible study-either immediately or in a month-did not "accommodate" her religious beliefs. In discussing the trial evidence on which the jury could have relied in finding that Serrano's accommodated Naeve's religious beliefs, Judge Martone never mentioned these two proposals, but relied solely on the notion that a transfer would have eliminated the conflict and that the jury could have found Serrano's offered Naeve a transfer. See R.259 at 10-11 (RE10a-11a). On this point, Serrano's argues in its Answer Brief that "Ric Serrano unequivocally testified . . . that he offered Ms. Naeve a transfer to another location on July 2, 2001, and that a transfer would have remedied the conflict with the Code." AnsBrf at 16. Serrano's argues, furthermore, that the transfer offer had "no strings attached." See id. at 19, 21 (Ric "testified at trial . . . that he offered Ms. Naeve a transfer with no strings attached"). Serrano's' representation of the transfer as having "no strings attached" suggests Serrano's understands that transferring Naeve to a new location would not have eliminated the religious conflict if the transfer was conditioned on Naeve compromising her religious beliefs at the new location. As the EEOC explained in its opening brief, however, the record demonstrates overwhelmingly that such a condition was implicit in the exchange between Ric Serrano, Theresa Serrano-Keel, and Naeve concerning any potential transfer. See, e.g., EEOC Brf at 25-26. Indeed, this conclusion follows inevitably from Serrano's' argument that Naeve rejected Ric Serrano's offer to transfer her to another restaurant "when she specifically told him that . . . she could not guarantee that the same issue would not reoccur at another Serrano's restaurant." AnsBrf at 19. Serrano's does not point to any testimony or evidence that Naeve ever said she would not transfer to a new restaurant, because there is none. To the contrary, Naeve testified unequivocally that she would have accepted a transfer to another location, had it actually been offered. Tr.380:20-25 (RE178a). She explained, however, that Ric never offered a specific transfer to any location, never asked her a question regarding transfer that would have required a yes or no answer, and never said anything that suggested he was offering an unconditional transfer. Tr.459:3-5, 886:4-14 (RE198a, RE263a). Naeve's statement concerning the guarantee she could not give was not a rejection of a transfer, but merely a clarification that she would not compromise her religious beliefs at the new location, should the same situation arise again. Serrano's' response to Naeve's statement further belies Serrano's' claim that Ric offered Naeve an unconditional transfer. Ric testified that when Naeve indicated she could not guarantee the same situation would not happen again at the new location, Serrano's abandoned the transfer option and terminated Naeve's employment. RE221a-223a, 229a, 236a, 251a-255a. If, as Serrano's now asserts, the alleged transfer offer was unconditional, Ric or Theresa surely would have told Naeve that no "guarantee" was necessary and would have proceeded to implement the transfer.<4> Ric testified, however, that he and Theresa understood Naeve's statement to be a refusal of a transfer.<5> RE236a-239a. Taking his testimony at face value, this can only mean that, in their minds, such a guarantee on Naeve's part was a prerequisite for a transfer.<6> Given this trial record, Judge Carroll properly determined that the jury's verdict was against the clear weight of the evidence, and there is no credible support in the trial record for Judge Martone's contrary conclusion. "Credibility" of evidence involves "the over-all evaluation of testimony" in light of its "rationality or internal consistency and the manner in which it hangs together with other evidence." Ind. Metal Prods. v. N.L.R.B., 442 F.2d 46, 51-52 (7th Cir. 1971) (citing Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963)). To be worth crediting, evidence "must not only proceed from a credible source, but must, in addition, . . . meet[] the test of plausibility." Id. (citations omitted). Here, the only plausible and internally consistent interpretation of Ric and Theresa's testimony is that Serrano's' transfer offer was implictly conditioned on Naeve's agreement to forego her religious convictions at the new location and that Serrano's withdrew the transfer offer as soon as Naeve communicated that she was unwilling to provide such a guarantee. In sum, the overwhelming weight of the evidence (and all of the credible evidence) establishes that Serrano's either never actually offered Naeve a transfer, or withdrew any such offer, because Naeve would not agree in advance to compromise her religious beliefs at the new location. The only contrary evidence is Ric Serrano's bald and self-contradictory assertion that he offered Naeve an unconditioned transfer that she refused, see Tr.654:17-657:25 (RE220a-224a), and Theresa Serrano-Keel's repetition of that same assertion based on what Ric told her. See Tr.595:1-596:13 (FRE1-2). As we explained above, this implausible assertion is undermined by uncontradicted evidence in the trial record, leaving Judge Martone's ruling without record support. Moreover, Judge Carroll was closest to the factual record and was in the best position to assess whether the jury verdict conflicted with the clear weight of the evidence. See Freund v. Nycomed Amersham, 347 F.3d 752, 765 (9th Cir. 2003) (district court is most familiar with context of trial, and enjoys broad discretion with regard to a new trial motion). In order for Judge Martone to vacate Judge Carroll's ruling, Judge Martone had to do more than simply find some evidence in the trial record to support Serrano's claim that it offered Naeve a transfer. Judge Martone had to conclude that Judge Carroll clearly erred when he ruled that the jury's finding on "accommodation" was against the clear weight of the trial evidence. Serrano's Answer Brief offers no support for concluding that Judge Carroll clearly erred. This Court has stated that a motion to alter or amend a judgment-like Serrano's' second motion for reconsideration-is an "extraordinary remedy," to be granted "sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). This Court has described the requisite showing for reconsideration as a "high hurdle," stating that "[a] judgment is not properly reopened 'absent highly unusual circumstances.'" Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). This case does not even arguably present the "highly unusual circumstances" that would warrant reconsideration of Judge Carroll's order. Rather, the only "circumstance" for Serrano's' untimely second motion for reconsideration-some fifteen months after Judge Carroll granted the EEOC a new trial, and after this Court denied Serrano's request for interlocutory review-was the reassignment of this litigation to a new district court judge. This Court should exercise caution not to condone a practice that would have the effect of encouraging litigants to seize upon the reassignment of a case to another judge as an opportunity to seek to revisit issues already decided. One district judge should not reverse another district judge's prior order in the same case solely because the second judge would have decided the issue differently in the first instance.<7> Judge Martone did just that here, and this Court should reverse. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to reverse Judge Martone's order granting Serrano's' second motion for reconsideration. We further urge this Court to reinstate Judge Carroll's order granting a new trial and to remand this case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791 Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,349 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: March 14, 2008 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and fifteen copies of the Appellant EEOC's Reply Brief with this Court on March 14, 2008, by Federal Express, postage pre-paid, and served two copies of said brief on the same date by the same means on: Mark J. Ogden, Esq., Peter C. Prynkiewicz, Esq., and Kristin R. Culbertson, Esq. LITTLER MENDELSON, PC 2425 East Camelback Road, Suite 900 Phoenix, Arizona 85016 (602) 474-3600, Fax (602) 957-1801 Susan R. Oxford Attorney EEOC, Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov *********************************************************************** <> <1> Neither of the cases cited by Serrano's on this point, see AnsBrf at 18, concerned the grant of a new trial. Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276 (9th Cir. 2001), was an appeal from a district court's grant of judgment as a matter of law. United States v. Carty, 453 F.3d 1214 (9th Cir.), was vacated when this Court granted rehearing en banc, 462 F.3d 1066 (9th Cir. 2006), but in any event it involves an appeal from a criminal conviction. Thus, these two cases reveal nothing about the interplay between a jury's credibility determinations in the first instance and a trial judge's grant of a new trial to prevent a miscarriage of justice. Serrano's also cites Venegas, which did involve a motion for a new trial. This Court did not, however, hold in Venegas that "[a] court may not substitute its own conclusion for a jury's conclusion" or that a jury's decision must necessarily be given "primacy," as Serrano's inaccurately asserts. See AnsBrf at 12, 13. Rather, this Court simply upheld the district court's denial of a new trial, finding the trial judge properly deferred to the jury's resolution of the particular factual questions in that case. See Venegas, 831 F.2d at 1519. <2> Unlike the district court in Air-Sea Forwarders, 880 F.2d at 190, Judge Carroll did not expressly state that he found Ric Serrano's testimony to be non-credible. A district court is not required, however, to state its reasons for ordering a new trial. Allied Chem., 449 U.S. at 36 n.3; see Fed. R. Civ. P. 52(a) (with exceptions not relevant here, "[f]indings of fact and conclusions of law are unnecessary on . . . any other motion"). This Court will uphold a district court's order, even without a statement of reasons, if, as here, it is supported by the record. See, e.g., Patton v. County of Kings, 857 F.2d 1379, 1381-82 (9th Cir. 1988) (upholding district court's ruling that attorney's fees were warranted despite absence of specific factual findings; remanding for statement of reasons on calculation of fees only). <3> This Court has acknowledged the propriety of "a careful review of the record" when considering a district court's grant of a new trial based on the weight of the evidence. See Wallace v. City of San Diego, 479 F.3d 616, 631 (9th Cir. 2007). Logically, a newly-assigned district court judge should do no less before concluding that the judge who presided over the trial committed "clear error" on a "weight of the evidence" question. Indeed, when Judge Martone first received Serrano's' motion, he expressly acknowledged that the "weight of the evidence" issue "would require reference to the transcript, which I have not done." R.257 (Pretrial Hearing Transcript) at 11 (RE35a) (cited in EEOC Brf at 12). At no point thereafter did Judge Martone ever indicate he had reviewed the entire transcript. In denying the EEOC's motion for reconsideration, he claimed only that he examined everything the EEOC called to his attention. See EEOC Brf at 15. <4> Indeed, as this Court has noted, an employer cannot require an employee to waive Title VII rights prospectively. Townley, 859 F.2d at 616 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974); other citations omitted). <5> Serrano's argues that Ric "did not ask Ms. Naeve to make any such guarantee; she raised the issue." AnsBrf at 19. Even if this were true, it would be immaterial. It does not matter who raised the issue; what matters is that Serrano's dropped the transfer option because Naeve could not guarantee there would be no future conflicts between her religious beliefs and Serrano's' Code of Conduct. In fact, however, Naeve testified that it was Ric and Theresa who broached the subject when she met with them on July 6, asking Naeve directly if she could "guarantee that this would never happen again in another location" and then telling her that a transfer was not an option after she said she could not provide such a guarantee. RE177a-178a, 191a-192a; see EEOC Brf at 8-9. Naeve's testimony on this point, which is corroborated by Ric Serrano's prior sworn declaration, see id. at 9 n.3, provides even further support for the EEOC's position that Ric and Theresa conditioned the option of "transfer" on Naeve's guarantee that the alleged conflict would not happen again. Judge Carroll was entitled to take into account this evidence concerning the context of Naeve's statement when he determined that the jury's verdict was against the clear weight of the evidence. <6> Certainly, as Serrano's argues, an employer can wait until a conflict arises before offering an accommodation. See AnsBrf at 20. Obviously, there is no duty to accommodate in the absence of a need for accommodation. That is no defense, however, to Serrano's' failure, in this instance, to accommodate a conflict that had already arisen. Serrano's did not have to promise Naeve that it would accommodate any future conflicts that might arise. The company did, however, have to accommodate this conflict. <7> Judge Martone claimed he understood this limitation. He also suggested, however, that he had full liberty to alter Judge Carroll's rulings, stating he was deciding Serrano's second motion for reconsideration as if he had rendered the September 1, 2005, new trial order himself in the first instance and suggesting he was free to alter it as he saw fit. See R.259 at 9 (RE9a). That was plainly the wrong posture. Judge Martone was obligated to consider only whether Judge Carroll, given his unique vantage point as presiding trial judge, had "clearly erred" when he ordered a new trial based on the clear weight of the trial evidence.