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


***********************************************************************
<<FOOTNOTES>>

<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.