### The Honorable Susan Webber Wright, United States District 1 

### Judge for the Eastern District of Arkansas. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-4008

___________ Michael Dennis Tribulak, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas Minirth-Meier-Rice Clinic, * * [UNPUBLISHED] Appellee. *

___________ Submitted: November 7, 1996 Filed: April 15, 1997

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________
PER CURIAM.
Michael D . Tribulak appeals from the final judgment of the District Court for the Eastern District of Arkansas granting defendant Minirth

1 Meier-Rice Clinic (MMR) judgment as a matter of law in his employmen t discrimination and contract action. For the reasons discussed below, we affirm. Tribulak, a Southern Baptist, was hired by MMR, a Christia n counseling clinic, as a therapist in June 1989. After Tribulak obtained his Arkansas license in February 1990, he conducted group

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marital and family therapy. For a two-year period, during Tribulak' s separation and divorce, MMR restricted the marit al casework Tribulak could conduct and required that his therapy sessions be supervised. MMR als o advised Tribulak that he needed to include more prayer and biblica l references in his counseling, which he felt was inappropriate. Tribulak resigned in November 1992.

Aft er exhausting his administrative remedies, Tribulak brought a n action un der Title VII of the Civil Rights Act of 1964, claiming, inte r alia, MMR discriminated against him on the basis of his sex and hi s Southern Baptist religious beliefs. On the second day of trial at th e close o f Tribulak's case, the district court granted MMR's motion fo r judgment as a matter of law.

The d istrict court concluded that Tribulak failed to make a prim a facie case of religious discrimination. Although the evidence indicated MMR encouraged Tribulak to pray with some of his patients which Tribulak thought improper, the district court held Tribulak failed to establish tha t his fa ilure to pray was consistent with his sincerely-held religiou s beliefs or that the r estrictions during his own marital difficulties were punitive or a result of religious discrimination. In addition, th e district court conclu ded Tribulak did not establish a prima facie case of sex di scrimination, because the evidence showed he was not similarl y situated to the female therapists. "In ruling on a [Federal Rule of Civil Procedure] 52 motion the trial court need not consider the evidence in a light favorable to the plaintiff and may render judgment for the defendant if it believes the plaintiff's evidence is insufficient to make out a claim." Geddes v. Northwest Mo
. State Univ. , 49 F.3d 426, 429 n.7 (8th Cir. 1995). A finding made pursuan t to Rule 52(c) is

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reversible only if it is clearly erroneous. Id. In the absence of a tria l transc ript, this court cannot review the district court's findings fo r clear error. See Meroney v. Delta Int'l Mach. Corp. , 18 F.3d 1436, 1437 (8th Cir. 1994). In addition, we cannot review Tribulak's arguments that the district court erred in admitting or excluding evidence. See Schmid
v. Uni ted Bhd. of Carpenters, 827 F.2d 384, 386 (8th Cir. 1987) (pe r curiam), cert. denied , 484 U.S. 1071 (1988). Accepting the district court's factual findings as true, we agre e that Tribulak did not prove a prima facie case of religious discrimination , see Johnson v. Angelica Unif. Group, Inc. , 762 F.2d 671, 673 (8th Cir
. 1985) (to make prima facie case of religious dis crimination, employee must plead and prove he ho lds bona fide belief that compliance with employment requir ement violates his religion), or sex discrimination, see James v . Fra nk , 973 F.2d 673, 676 (8th Cir. 1992) (prima facie case of se x discrimination requir es proof that plaintiff is similarly situated in all relevant respects to members of opposite gender). Finally, the district court did not abuse its discretion in quashing witness subpoenas which were not accompanied by the witness fee. See CF & I Steel Corp. v. Mi tsui & Co. , 713 F.2d 494, 496 (9th Cir. 1983) (plain meaning of Fed. R. Civ. P. 45(c) requires tender of fees with service of subpoena). Accordingly, we affirm.

### -4- A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.