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

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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* [UNPUBLISHED]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 Minirth1

Meier-Rice Clinic (MMR) judgment as a matter of law in his employment

discrimination and contract action. For the reasons discussed below, we

affirm.

Tribulak, a Southern Baptist, was hired by MMR, a Christian

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 marital casework Tribulak could

conduct and required that his therapy sessions be supervised. MMR also

advised Tribulak that he needed to include more prayer and biblical

references in his counseling, which he felt was inappropriate. Tribulak

resigned in November 1992. 

After exhausting his administrative remedies, Tribulak brought an

action under Title VII of the Civil Rights Act of 1964, claiming, inter

alia, MMR discriminated against him on the basis of his sex and his

Southern Baptist religious beliefs. On the second day of trial at the

close of Tribulak's case, the district court granted MMR's motion for

judgment as a matter of law. 

 

The district court concluded that Tribulak failed to make a prima

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 that

his failure to pray was consistent with his sincerely-held religious

beliefs or that the restrictions during his own marital difficulties were

punitive or a result of religious discrimination. In addition, the

district court concluded Tribulak did not establish a prima facie case of

sex discrimination, because the evidence showed he was not similarly

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 pursuant

to Rule 52(c) is 
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reversible only if it is clearly erroneous. Id. In the absence of a trial

transcript, this court cannot review the district court's findings for

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. United Bhd. of Carpenters, 827 F.2d 384, 386 (8th Cir. 1987) (per

curiam), cert. denied, 484 U.S. 1071 (1988). 

Accepting the district court's factual findings as true, we agree

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 discrimination, employee must

plead and prove he holds bona fide belief that compliance with employment

requirement violates his religion), or sex discrimination, see James v.

Frank, 973 F.2d 673, 676 (8th Cir. 1992) (prima facie case of sex

discrimination requires 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. Mitsui & 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.
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A true copy.

Attest:

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