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 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. District Court Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. Judge Martone abused his discretion in granting reconsideration because Judge Carroll's grant of a new trial based on the weight of the evidence was not clearly erroneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. Judge Martone also abused his discretion in denying EEOC's motion for reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 III. Consistent with the policies underlying the "law of the case" doctrine, where two district court judges assigned to the same case at different times reach different results on the same discretionary question, this court should defer to the first judge's decision. . . . . . . . . . . . . . . . . . . . . . . 38 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 TABLE OF AUTHORITIES Cases pages Analytical Eng'g, Inc. v. Baldwin Filters, Inc., 425 F.3d 443 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 39 Anderson v. Bessemer City, 470 U.S. 564 (1985) . . . . . . . . .. . . . . . . 34 Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978) . . . . . . . . . . . . . . . 19, 20, 21, 22, 27 Arizona v. California, 460 U.S. 605 (1983) . . . . . . . . . . . . . . . . 17 Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) . . . . . . . . . . . 38, 39, 40 Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975) . . . . . 20 Easley v. Cromartie, 532 U.S. 234 (2001) . . . . . . . . . . . . . . . . . . . . 34 EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) . . . 19, 27 Globe Liquor Co. v. San Roman, 332 U.S. 571 (1948) . . . . . . . . . . . . 38, 39 Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993) . . . . . . . . . . . 19, 23, 27 Hemmings v. Tidyman's, 285 F.3d 1174 (9th Cir. 2002) . . . . . . . . . . . . . . 29 Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . 29 Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365 (9th Cir. 1987) . . . . . . . . . . . . . . . . 16, 29, 30, 35 Maricopa County, Ariz. v. Maberry, 555 F.2d 207 (9th Cir. 1977) . . . . . . . 38 Mendenhall v. Mueller Streamline Co., 419 F.3d 686 (7th Cir. 2005) . . . . . 40 Minnesota Mut. Life Ins. Co. v. Ensley, 174 F.3d 977 (9th Cir. 1999) . . . . 16 Old Person v. Brown, 312 F.3d 1036 (9th Cir. 2002) . . . . . . . . . . . . . . . 17 Opuku-Boateng v. State of Cal., 95 F.3d 1461 (9th Cir. 1996) . . . . . . . . 21 Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 17 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1976) . . . . . . . . . . . 19 United States v. Desert Gold Min. Co., 433 F.2d 713 (9th Cir. 1970) . . . . 16 United States v. 4.0 Acres of Land, 175 F.3d 1133 (9th Cir. 1999) . . . . . 30 United States v. Kellington, 217 F.3d 1084 (9th Cir. 2000) . . . . . . . . . . . 38 United States v. U.S. Gypsum Co., 333 U.S. 364 (1948) . . . . . . . . . . . . . 34 Williams v. Commissioner, 1 F.3d 502 (7th Cir. 1993) . . . . . . . . . . . . 40, 41 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §§ 1331, 1337, 1343, 1345 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 2107(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 2000e-2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 50(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 38 Fed. R. Civ. P. 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 16 Fed. R. Civ. P 59(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 30 Local Rule Civ. 7.2(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17 STATEMENT OF JURISDICTION The district court had jurisdiction to hear this Title VII lawsuit under 28 U.S.C. §§ 1331, 1337, 1343, 1345, and 42 U.S.C. §§ 2000e-5(f)(3), 2000e-8(c). The district court initially entered judgment on the jury verdict, R.204,<1> but then vacated judgment and granted a new trial. R.224. The district court thereafter vacated the new trial order and entered final judgment on the jury verdict on February 14, 2007, R.259, R.260, and denied the EEOC's timely motion for reconsideration on April 5, 2007. R.267; see R.262. The EEOC filed a notice of appeal on June 1, 2007, within 60 days after reconsideration was denied. R.270 (RE272a). This appeal is timely under 28 U.S.C. § 2107(b) and Fed. R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether Judge Martone abused his discretion when he granted Serrano's' untimely second motion for reconsideration where Judge Carroll's order granting a new trial based on the clear weight of the evidence was not clearly erroneous. 2. Whether Judge Martone abused his discretion in denying the EEOC's motion for reconsideration where the denial was based on the court's erroneous perception of the evidence on the critical issue of transfer as an accommodation. 3. Whether, in any event, this Court should defer to Judge Carroll's decision because only Judge Carroll presided over the trial and assessed the witnesses' credibility, and deference to Judge Carroll's decision would give full effect to the important policies underlying the "law of the case" doctrine. STATEMENT OF THE CASE A. Course of Proceedings The EEOC filed this lawsuit on August 20, 2002. R.1. The case was tried before a jury for six days between June 7 and 15, 2005, with the Hon. Earl H. Carroll, U.S.D.J., presiding. R.191-196. On June 15, 2005, the jury returned a verdict for Serrano's. R.202 (RE12a). On June 28, 2005, the EEOC moved under Federal Rules of Civil Procedure 50(b) and 59(a) for Judgment as a Matter of Law (JMOL) or, alternatively, for a new trial. R.207. On September 1, 2005, the district court denied JMOL and granted a new trial on two separate grounds: that the jury's answers to written interrogatories were inconsistent, and that the verdict, based on the jury's finding that Serrano's had accommodated Naeve, was against the clear weight of the evidence. R.224 (RE23a). On September 16, 2005, Serrano's filed a timely motion for reconsideration, R.225, which the district court denied on September 28, 2005. R.229 (RE20a). Serrano's moved to have the "new trial" order certified for immediate appeal, R.230, and on November 28, 2005, Judge Carroll certified the question of whether the jury's answers to interrogatories were inconsistent. R.236; see also R.241. On July 27, 2006, this Court denied leave to appeal and remanded the case for a new trial. R.245 (RE92a). Judge Carroll scheduled re-trial for February 2007. See Minute Entry dated 10/10/06 (RE298a). On January 18, 2007, Judge Carroll recused himself, and the case was re-assigned to the Hon. Frederick J. Martone, U.S.D.J. R.250, 251 (see RE298a-299a). Serrano's filed an untimely second motion for reconsideration on January 31, 2007, R.253, which Judge Martone granted on February 14, 2007, R.259, reinstating the jury verdict in Serrano's' favor. R.260 (RE19b). Judge Martone denied the EEOC's timely motion for reconsideration. See R.262, R.267. This appeal followed. B. Statement of the Facts Serrano's operates a chain of Mexican restaurants in the Phoenix area. The company has a Management Code of Conduct that prohibits managers from socializing with subordinates outside of work. Tr.Exh.2 (RE133a); Tr.313:14-24 (RE144a). In March 2000, Serrano's hired Terra Naeve as general manager of its Power Road restaurant, where she oversaw between 55 and 65 employees. Tr.301:12-20, 306:8-11 (RE140a, 141a). At the time, Naeve was a member of New Hope Community Church, which she had been attending since approximately 1994. Tr.319:9-14 (RE147a). Naeve did not initiate any conversations about her faith or her church at work, nor did she in any way proselytize her co-workers. See, e.g., Tr.326:8-328:20, 358:17-25, 685:2-8 (RE154a-156a, 164a, 237a). When two Power Road employees asked Naeve where she went to church, however, she told them, and they and another Power Road employee began attending New Hope Community Church. Tr.325:6-329:20 (RE153a-157a). New Hope emphasizes lay ministry, which Naeve's pastor explained is the involvement of non-clergy church members to assist in furthering the work of the church's ministry. Tr.469:14-470:22 (RE199a-200a). In March 2001, Naeve was nominated to be a Servant Leader. Tr.320:14-20 (RE148a). Among other duties, Servant Leaders were required to lead a Focus Group, a small group of people meeting on a regular basis to study the Bible for the purpose of continued spiritual growth. Tr.321:22-322:5 (RE149a-150a). Naeve accepted the position, Tr.320:21- 321:10 (RE148a-149a), and after prayer and consultation with her pastor, Naeve felt called by God to start an introductory Bible study, something New Hope did not then offer. Tr.322:6-324:1, 372:3-6, 471:6-472:12 (RE150a-152a, 174a, 201- 202a). The Bible study was announced at church, and the other Serrano's employees who were attending Naeve's church decided to join. Tr.330:22-331:8 (RE158a-159a). The Bible study met in different participants' homes on Naeve's day off from work. Tr.331:9-332:21 (RE159a-160a). Nothing in Serrano's' Management Code of Conduct suggested the company's anti-fraternization policy related to a supervisor's religious practices or observances, see Tr.Exh.2 (RE133a), and Naeve did not believe that leading a Bible study attended by some of her employees violated the Code's prohibition against "socializing" outside of work. Tr.313:25- 314:7, 363:3-5 (RE144a-145a, 168a). Nevertheless, Naeve mentioned the Bible study to Ric Serrano, the company general manager, so there would be no appearance she was trying to hide anything. Tr.361:2-9, 362:14-363:5 (RE166a- 168a). Ric Serrano directed Naeve either to stop leading the Bible study or to tell the three subordinates they could no longer attend. Tr.370:1-7, 392-93, 658:11- 659:15, 689:15-23, 696:1-7 (RE172a, 181a-182a, 224a-225a, 239a, 243a). Both options conflicted with Naeve's religious beliefs. Tr.370:10-371:20, 395:1-396:8 (RE172a-173a, 184a-185a). Naeve testified that she told Ric Serrano that this was a church-affiliated Bible study and "was something [she] was led to do." Tr.364:11-17, 366:23-367:9, 396:9-397:4, 446:11-20 (RE169a-171a, 185a-186a, 190a). She further testified that her Church did not offer any other introductory Bible study, and that her faith required that the Bible study she led be open to anyone who wanted to participate. Tr.334:14-23, 367, 396-97, 446:11-20 (RE162a, 171a, 185a-186a, 190a). As Naeve testified, explaining why she could not tell her employees to stop attending her Bible study: "Which hat would I wear? Would I wear the Bible study leader hat and tell them to go somewhere else? I couldn't do that, that's not what I was called to do in that position. Would I wear my general manger's hat and tell them to do that? I couldn't do that. I could not tell my employees what to do and what to choose in their church and in their faith life." Tr.371:5-15 (RE173a). See also Tr.472:13-19 (RE202a) (Naeve's pastor testified it would have been inconsistent with New Hope's ministry philosophy for Naeve to tell anyone they could not participate in her Focus Group). Naeve informed Ric Serrano that she could not comply with either directive. Tr.392:20-394:2 (RE181a-183a). Naeve asked Serrano's to exempt the Bible study from the anti-fraternization policy. She suggested various ways that the company's management could ensure she was not showing favoritism to the employees attending Bible study. Naeve suggested that her immediate superiors could check the weekly staff schedule to ensure the Bible study participants were not receiving preferential work assignments, Tr.375:13-24, 691:11-16 (RE176a, 241a), something Theresa Serrano-Keel said would take less than a minute to do. Tr.534:6-535:23 (RE209a- 210a). Naeve also suggested that Serrano's could instruct her two assistant managers to report any concerns of favoritism directly to the company, as the assistant managers were already required to do with any improper behavior on the part of the general manager. Tr.379:1-18, 534-35, 664-68, 691:11-18 (RE177a, 209a-210a, 230a-234a, 241a). Serrano's rejected Naeve's suggestions. Tr.379:19- 22, 664-68 (RE177a, 230a-234a). Although Naeve's proposals would not have cost the company anything, Tr.382:23-383:8 (RE179a-180a), Serrano's said that her suggestions were not "workable," Tr.692:7-11, 788:8-13 (RE242a, 258a), and speculated that permitting Naeve to lead a Bible study attended by some of her employees would cause a hardship to Serrano's' business because Naeve might become too familiar with these employees in the future, leading to a potential morale issue, possible perception of favoritism, or possible sexual harassment. Tr.661, 669 (RE227a, 235a). At the time, Serrano's had never received any complaints of this nature concerning Naeve. Tr.372:15-22, 489, 499, 664:23-25, 669 (RE174a, 203a, 204a, 230a, 235a). Ric Serrano had mentioned transferring Naeve to another restaurant so the Bible study participants would no longer be her subordinates, Tr.654-55 (RE220a- 221a),<2> and Naeve indicated she would have accepted such an offer readily. Tr.380:20-25 (RE178a). Once Naeve said she could not guarantee the same thing would not happen again at a new location, however, transfer ceased to be an option. Tr.379:23-380:17, 447-48, 725-27 (RE177a-178a, 191a-192a, 253a-255a). The parties dispute how this subject came up. Naeve testified that, before actually offering her a transfer, Ric and Theresa asked her directly if she could guarantee the same problem would not occur at a new location. When she answered "how could I possibly guarantee something I have no control over?" they told her transfer was no longer an option because it would be too much hassle to switch managers and then have the same thing happen again. Tr.379-80, 447-48 (RE177a-178a, 191a-192a). Ric testified that it came up in a telephone conversation wherein Naeve stated, "[M]y pastor and I have talked about this, and I cannot guarantee that this won't happen wherever you transfer me." Tr.657:5-25 (RE223a); see also Tr.725:4-8 (Ric's audio-recorded statement) (RE253a).<3> Serrano's fired Naeve on July 10, 2001, informing her she had violated the Management Code of Conduct. Tr.310:4-10, 319:4-8, 394:16-23 (RE142a, 147a, 183a). The case was tried before a jury for six days in June 2005. R.177-187. The jury verdict form contained two written interrogatories. R.200 (RE13a). The first asked whether the EEOC proved that "Naeve held a sincere religious belief that required her to lead a Bible study class for anyone who chose to enroll" and had "informed Serrano's of this belief." The second asked whether Serrano's proved "that it offered Ms. Naeve an accommodation that would have eliminated any conflict between the practice of her sincerely held religious belief and the Management Code of Conduct." After deliberating a little more than an hour, the jury indicated "no decision" to the first interrogatory, answered "yes" to the second, and returned a verdict for Serrano's. R.202 (RE12a-13a). C. District Court Decisions 1. Judge Carroll's September 1, 2005, Order Granting a New Trial On September 1, 2005, Judge Carroll granted the EEOC's motion for a new trial. Judge Carroll ruled, in relevant part, that the jury's finding that Serrano's reasonably accommodated Naeve's sincerely held religious beliefs was against the clear weight of the evidence.<4> R.224 at 3 (RE25a). Judge Carroll denied Serrano's' motion for reconsideration on September 28, 2005. R.229 (RE20a).<5> Judge Carroll issued an order scheduling the case for re-trial beginning February 27, 2007. See Minute Entry on 10/10/06 (RE298a). On January 18, without explanation, Judge Carroll recused himself, and the case was re-assigned to Judge Martone. R.250, R.251 (RE298a-299a). Approximately ten days later, Serrano's filed an untimely, second motion for reconsideration. R.253 (RE78a). Serrano's did not assert any change in the facts or the relevant law, but claimed it had "good cause" to bring a belated second motion for reconsideration on the grounds that Judge Carroll's Order was "clear error" and reconsideration was needed to prevent the injustice of a second trial. Id. at 8, 13-14 (RE85a, 90a-91a). 2. Judge Martone's February 14, 2007, Order Granting Serrano's' Motion for Reconsideration and Vacating Judge Carroll's Order Granting a New Trial At the February 1, 2007, pretrial conference, Judge Martone acknowledged Serrano's' untimely, second motion for reconsideration of the order granting a new trial, noting that the "weight of the evidence" issue "would require reference to the transcript, which I have not done." R.257 (Pretrial Tr.) at 11 (RE35a). When the parties asked to have the trial postponed to March, Judge Martone stated, "[I]f this motion is as meritorious as it looks, there won't be a trial anyway." Id. at 18-19 (RE42a-43a). Judge Martone gave the EEOC until February 12 to file its opposition to the motion and indicated he would render a decision the next day or the day after, urging the parties to hold off on any trial preparation until they received his ruling. Id. at 26 (RE45a). EEOC filed its opposition on February 12, R.258 (RE61a), and Judge Martone granted Serrano's' motion on February 14, vacating the order for a new trial and reinstating the jury's verdict in Serrano's' favor. R.259 (RE1a-11a). Judge Martone declined to apply the "law of the case" doctrine, noting that under Federal Rule of Civil Procedure 54(b), any district court order is subject to revision prior to final judgment. Id. at 4-5 (RE4a-5a). Judge Martone found "good cause" to entertain the motion even though it was filed more than ten days (indeed, almost eighteen months) after the original order, see Local Rule Civ. 7.2(g), on the ground that Judge Carroll's grant of a new trial was "clear error," a finding that also satisfied a criterion for granting reconsideration. R.259 at 4 & n.2 (RE4a). The Commission had argued that where Judge Martone was being asked to reconsider a prior judicial ruling that was based on the first court's exercise of discretion, and where Serrano's had cited no change in the law or the underlying facts, considerations of judicial comity strongly counseled that the second judge should not overturn the first. R.258 at 9-10 (RE69a-70a). Judge Martone rejected this argument, stating that the EEOC was describing an appellate standard of review. R.259 at 8-9 (RE8a-9a). Judge Martone stated that he did not stand in the shoes of the court of appeals, but was reconsidering Judge Carroll's ruling "as though we had made it on our own earlier in the case." Id. at 9 (RE9a). Judge Martone recognized that, unlike the narrow circumstances for granting JMOL, a district court can grant a new trial even where substantial evidence supports the jury verdict, "if the verdict is against the clear weight of the evidence." Id. Nevertheless, Judge Martone stated that a court should not substitute its own conclusion for that of the jury, id., and then essentially concluded that was what Judge Carroll had done here. See id. at 10-11 (RE10a-11a). In examining whether the evidence supported the jury's finding that Serrano's accommodated Naeve's religious beliefs, Judge Martone relied on the EEOC's statement that a transfer would have accommodated Naeve's beliefs, id. at 10 (quoting EEOC's Response at 11), stating the Commission had "narrowed [the court's] focus by conceding that one of three accommodations defendant discussed with Naeve was reasonable, and would have eliminated any conflict between Naeve's practice and the Code." Id. (RE10a). Taking the EEOC's statement out of context, Judge Martone summarized the witnesses' testimony concerning transfer and rejected the Commission's contention that the weight of this evidence showed a transfer was never actually offered. Id. at 11 (RE11a). The court concluded that "[t]he issue of whether an offer was actually made was left to the jury," and said, "We are not persuaded that the clear weight of the evidence could only support a finding that an offer was not made." Id. (emphasis in original). Judge Martone stated: This issue went to the jury because it was a difficult one to decide. The jury's finding on an offer of an accommodation is not against the clear weight of the evidence. The jury was entitled to believe Ric Serrano and construe plaintiff's cross-examination and contentions as an exercise in semantics. Plaintiff had a fair trial. There is no reason to hold another one. Id. 3. Judge Martone's Order Denying EEOC's Motion for Reconsideration The EEOC moved for reconsideration, primarily to rectify Judge Martone's misperception of the Commission's position on transfer. R.262 at 3-5, 9-13 (RE49a-51a, 55a-59a). The EEOC clarified that an unconditional transfer would have resolved the conflict between Naeve's religious beliefs and Serrano's' interpretation of the Code, but the undisputed evidence showed that Serrano's never made such an unconditional transfer offer. Id. at 9-10, 12 (RE55a-56a, 58a). Judge Martone rejected this position on two grounds: that the EEOC allegedly did not cite to the trial record to show the transfer offer was conditional, and that the EEOC was improperly seeking to ensure Naeve could continue "to recruit subordinate employees at the restaurant to which she would have been transferred." R.267 at 5-6 (RE18a-19a). Judge Martone stated, in this respect, that Serrano's "was entitled to restrict workplace proselytizing" and that "EEOC's views on this issue distort the law and raise very substantial First Amendment issues." Id. at 6 (RE19a). Judge Martone also rejected the EEOC's position that before reversing the judge who presided over the trial on a "weight of the evidence" determination, the district court was obligated to engage in a full and searching review of the entire trial record. R.267 at 2 (RE15a); see R.262 at 2-3, 6-9 (RE48a-49a, 52a-55a). Judge Martone gave no indication that he had reviewed the entire record, stating only that the EEOC cited no authority for this contention. R.267 at 2 (RE15a). Judge Martone further stated that "the responsibility to point out material portions of the record falls on the parties" and that he had examined everything the EEOC had brought to his attention. Id. at 3 (RE16a). STANDARD OF REVIEW This Court reviews for abuse of discretion a district court's decision to depart from the law of the case, to find "good cause" to consider an untimely motion for reconsideration, and to grant reconsideration. See Minnesota Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 987 (9th Cir. 1999); United States v. Desert Gold Min. Co., 433 F.2d 713, 715 (9th Cir. 1970). This Court also reviews for abuse of discretion a district court's grant of a motion for a new trial based on the clear weight of the evidence. Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1372 (9th Cir. 1987). In so doing, this Court does not weigh the evidence or assess the credibility of the witnesses. Id. SUMMARY OF ARGUMENT Judge Martone abused his discretion when he granted Serrano's' second motion for reconsideration and denied the EEOC's motion for reconsideration. When Judge Martone was assigned to this matter, Judge Carroll's order granting a new trial-which this Court had already declined to review on an interlocutory basis-was the "law of the case." Although any order of the district court is subject to revision prior to entry of final judgment on all claims, see Fed. R. Civ. P. Rule 54(b), this Court has stated that "one [district court] judge should not overrule another except for the most cogent reasons." See Desert Gold, 433 F.2d at 715. Thus, deviation from the law of the case requires appropriate justification. Cf. Arizona v. California, 460 U.S. 605, 619 n.8 (1983) (appellate court may depart from a prior holding if convinced it is clearly erroneous and would work a manifest injustice); Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002) (same). Likewise, motions for reconsideration, even when timely, are generally disfavored and should be granted only for "newly discovered evidence," "an intervening change in controlling law," or where the district court "committed clear error or the initial decision was manifestly unjust." See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). None of these criteria is present here. There was no newly discovered evidence nor any change in controlling law-only the assignment of a new district court judge. Indeed, while Serrano's' second motion for reconsideration misstated the standard for granting a new trial, it did not purport to make any arguments based on newly discovered evidence or a change in the controlling law. A careful review of the entire trial record amply supports Judge Carroll's conclusion that the jury's finding of accommodation was against the clear weight of the trial evidence. And since Judge Carroll's order is not clearly erroneous, conducting a new trial would not result in a manifest injustice. Judge Martone therefore abused his discretion in vacating Judge Carroll's "new trial" order.<6> Moreover, Judge Martone's decision to vacate Judge Carroll's new trial order was based largely on a misperception of the EEOC's position concerning whether a transfer would have accommodated Naeve's beliefs. The district court further abused its discretion by declining to alter its ruling once the Commission pointed out, in its motion for reconsideration, that the district court had apparently misunderstood the Commission's position regarding transfer. In any event, there are strong policy reasons for this Court to defer to Judge Carroll's determination rather than Judge Martone's. Among other things, deference to Judge Carroll gives proper effect to the interests of finality that underlie the "law of the case" doctrine. This standard has even more force here, where the matter at issue-whether to grant a new trial-involves assessing witness credibility and only Judge Carroll was in a position to make such assessments. ARGUMENT I. JUDGE MARTONE ABUSED HIS DISCRETION IN GRANTING RECONSIDERATION BECAUSE JUDGE CARROLL'S GRANT OF A NEW TRIAL BASED ON THE WEIGHT OF THE EVIDENCE WAS NOT CLEARLY ERRONEOUS. Judge Martone abused his discretion when he granted Serrano's' second motion for reconsideration, thereby reversing Judge Carroll's sound determination that the jury's finding of religious accommodation was against the clear weight of the evidence. Title VII requires employers to accommodate an employee's religious observances and practices unless the employer can demonstrate that accommodation would pose an undue hardship to its business. 42 U.S.C. §§ 2000e-2(a), 2000e(j); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1976). An accommodation must actually eliminate the conflict between the religious practice or belief and the workplace requirement, EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988), and an employee seeking religious accommodation under Title VII is not required to compromise her religious beliefs or practices. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 401 n.3 (9th Cir. 1978). An employer that seeks to establish that accommodation would cause "undue hardship" cannot base such a claim on theoretical concerns or hypothetical problems for which there is little or no proof. Id. at 402; Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520-21 (6th Cir. 1975). The clear weight of the evidence in this case shows that Naeve made reasonable suggestions that Serrano's rejected and that Serrano's, in return, failed to offer any accommodation that would have actually eliminated the conflict between Naeve's religious beliefs and Serrano's' interpretation of its Management Code of Conduct.<7> Naeve testified, and her pastor corroborated, that she sincerely believed God was calling her to teach an introductory Bible study to anyone who chose to attend. Tr.334:14-23, 472:13-19 (RE162a, 202a). She also testified that she sincerely believed she should not turn her back on God's calling. Tr.395:17- 396:8 (RE184a-185a). When Ric Serrano informed Naeve that meeting with fellow church members to study the Bible conflicted with the Code's prohibition against managers "socializing" with subordinates, Naeve asked Serrano's to exempt Bible study. Serrano's refused. Although Serrano's had never received any complaints about Naeve's behavior as a manager, Tr.489, 521-22, 669 (RE203a, 205a-206a, 235a), Ric Serrano speculated that Naeve might become too familiar with these employees in the future, leading to potential morale problems, perceptions of favoritism, or possible sexual harassment. Tr.669 (RE235a). As a matter of law, however, none of these reasons, based as they are on purely hypothetical and speculative concerns of potential future problems, could serve to establish "undue hardship" with respect to Naeve's proposed accommodation. See Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1473 (9th Cir. 1996) (hypothetical morale problems clearly insufficient to establish undue hardship); Anderson, 589 F.2d at 400, 402, 406-07 (speculative concerns insufficient). In response to these expressed concerns, Naeve suggested several steps whereby Serrano's could assure itself none of this was occurring. For instance, Naeve suggested that her immediate superiors could review the weekly employee schedules to verify that the Bible study participants were not being favored with the most desired time-slots, a task that both Naeve and Theresa Serrano-Keel testified would take Naeve's superiors, at most, a few minutes each week to accomplish. Tr.534-35, 886:20-887:14 (RE209a-210a, 263a-264a). Serrano's, however, rejected this suggestion as unworkable. Tr.692:7-11, 788:8-13 (RE242a, 258a). Naeve also suggested that her two assistant managers could report to the Serrano family if they observed Naeve showing favoritism or any other inappropriate behavior toward any of the Bible study participants, just as they were already required to report any observations of inappropriate behavior by Naeve or any other manager. Tr.379 (RE177a). Serrano's rejected this suggestion, as well, without any evidence that it would have created an undue hardship for Serrano's' business. Tr.379, 664-68 (RE177a, 230a-234a). To be sure, an employer is not obligated to adopt an employee's suggested accommodations, and an employee is not entitled, as a matter of law, to her preferred reasonable accommodation. However, an employer does not satisfy its obligation to provide an accommodation simply by rejecting the employee's suggestions, even if it has good cause to do so. See Anderson, 589 F.2d at 401 (employer's failure to accommodate religious beliefs not excused by "pointing to deficiencies . . . in [employee's] suggested accommodation). Rather, an employer must offer an alternative that actually eliminates the conflict, unless it can prove doing so would result in undue hardship. Id. at 402. The evidence adduced at trial demonstrates that none of Serrano's' suggestions would have eliminated the conflict between Naeve's religious beliefs and Serrano's' interpretation of the Management Code of Conduct. First, Ric Serrano suggested the employees be directed to attend a different Bible study, or be permitted to attend Naeve's Bible study for a short while and then transition to a different Bible study. Tr.392:22-393:6, 661:13-664:12 (RE181a-182a, 227a-230a). Apart from the fact that at the time, Naeve's Bible study was the only introductory Bible study New Hope Community Church offered, Tr.323:5-12 (RE151a), these two suggestions would not have accommodated Naeve's religious beliefs, Tr.393:7-17 (RE182a), as they would have required Naeve to act contrary to her religious belief that she was called to lead a Bible study open to anyone who chose to attend. Heller, 8 F.3d at 1438. As Naeve explained, the three Serrano's employees who attended New Hope Community Church had decided, on their own, to join this introductory Bible study, Tr.334:24-335:18 (RE162a-163a), and they could decide, on their own, to stop attending. Naeve's beliefs simply did not permit her to turn them away, even at the risk of losing her job. See Tr.453:18-454:23 (RE194a-195a). Judge Martone apparently understood this because, in granting Serrano's' second motion for reconsideration, he did not even mention these two suggestions as possibly fulfilling Serrano's' obligations under Title VII. See R.259 at 9-11 (focusing solely on "transfer" as a possible accommodation) (RE9a-11a). The fact that Serrano's continued, during this litigation, to advance these two suggestions as potential "accommodations" demonstrates that Serrano's has a fundamental misunderstanding of the requirements of Title VII.<8> Serrano's also maintains that it offered to eliminate the conflict by transferring Naeve to another restaurant. In the EEOC's original motion for a new trial and in its opposition to Serrano's' second motion for reconsideration, the EEOC explained why the weight of the evidence demonstrates that Ric Serrano merely discussed the possibility of a transfer with Naeve, but never actually offered it. See R.207 at 12-14 (RE125a-127a); R.258 at 10-12 (RE70a-72a); see also R.262 at 9-10 (RE55a-56a).<9> This dispute poses no problem for this Court, however. Regardless of whether a transfer was actually offered or just discussed as a possibility, the trial record demonstrates that Serrano's conditioned any potential transfer on Naeve's guarantee that her coworkers at the new location would not attend any Bible study she might lead, a guarantee Naeve could not give. Notwithstanding that Ric Serrano testified that he offered Naeve a transfer without any strings attached, the trial record as a whole demonstrates that Serrano's premised any transfer on Naeve's agreement, in advance, to be willing to compromise her religious beliefs in the new location. Specifically, when he was asked to explain exactly how Naeve had communicated that she was rejecting his offer of a transfer, Ric Serrano testified that Naeve rejected a transfer when she said that she could not "guarantee that this won't happen wherever you transfer me." Tr.657 (RE223a); see also Tr.541 (Theresa Serrano explained that Naeve rejected the transfer offer when "she told Ric . . . she could not guarantee that it would not happen again"). Naeve, who testified that she would have accepted a transfer readily, Tr.380:20-25 (RE178a), agrees that she made this comment, stating it was in response to Ric and Theresa's direct inquiry whether she could guarantee the same situation would not recur at the new location. Tr.379-80, 447-48, 459 (RE177a-178a, 191a-192a, 198a). Regardless of what prompted Naeve's statement, it does not indicate that Naeve rejected a transfer. Rather, it simply reflects an effort on Naeve's part to clarify the parties' respective assumptions or expectations once a transfer occurred. Ric and Theresa's testimony that they perceived this comment as Naeve's rejection of a transfer necessarily implies that they conditioned any transfer on Naeve's agreement that she would not permit any future subordinates to participate in a Bible study she was leading. Ric Serrano's failure to assure Naeve that such a guarantee was not necessary confirmed what Naeve knew or suspected-transfer to a new location required her promise that the same situation would not recur. Thus, the evidence points overwhelmingly to only two possible conclusions: either Ric Serrano never actually offered the transfer because, while the company was still considering the possibility, Naeve said she could not agree, in advance, to compromise her religious beliefs at the new location, or Ric Serrano offered a transfer and then withdrew it once Naeve said she could not agree, in advance, to compromise her religious beliefs at the new location. Either way, an accommodation that requires an employee to agree, in advance, to compromise her sincerely-held religious beliefs does not satisfy Title VII. See Heller, 8 F.3d at 1438; Townley, 859 F2d at 615-16; Anderson, 589 F.2d at 401 n.3. Judge Martone erroneously reasoned that the question of whether a transfer was offered "was left to the jury," R.259 at 11 (RE11a), and that a "new trial was properly granted on this ground only if the jury's finding that defendant actually offered Naeve a transfer was against the clear weight of the evidence." Id. at 10 (emphasis added) (RE10a). Judge Martone further concluded that the jury had found that Serrano's offered Naeve a transfer "by answering 'Yes' to the second interrogatory." Id. at 10 n.7 (RE10a). As we had pointed out to Judge Martone, see R.258 at 11 n.2 (RE71a), that was not the question before the jury, and that is not what the jury's answer of "yes" to the second question necessarily means. The jury was asked whether Serrano's had proven "that it offered Ms. Naeve an accommodation that would have eliminated any conflict between the practice of her sincere religious belief and the Management Code of Conduct." See id. at 16 (RE76a) (emphasis added). The jury was not asked to identify what form of accommodation it believed had been offered.<10> Given that Serrano's argued to the jury that it offered three, distinct "accommodations," the jury's answer of "yes" to the second written interrogatory does not necessarily mean the jury found that Serrano's offered Naeve a transfer. More importantly, as explained above, none of the three "accommodations" that Serrano's presented to the jury actually eliminated the conflict between Serrano's' interpretation of the Code and Naeve's religious beliefs. As a result, even if the jury's answer of "yes" to the second written interrogatory meant it found a transfer was offered, a finding of "accommodation" was still necessarily against the clear weight of the evidence, and Judge Carroll properly granted a new trial on this ground to avoid a miscarriage of justice. When Judge Martone reversed this sound exercise of discretionary judgment some eighteen months later, he emphasized that "[a] court may not substitute its own conclusion for that of the jury." R.259 at 9 (RE9a). In so doing, however, Judge Martone failed to recognize, as this Court has explained, that the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. Landes, 833 F.2d at 1371. Furthermore, when Judge Martone supported his reversal with the comment that he was not persuaded the evidence could only support a finding that an offer was not made, see R.259 at 11 (RE11a), he incorrectly applied the standard that governs JMOL rather than new trials. See Hemmings v. Tidyman's, 285 F.3d 1174, 1196 (9th Cir. 2002) (JMOL is appropriate when "the evidence, construed in the light most favorable to the non-moving party, permits only one reasonable conclusion, which is contrary to the jury's verdict."). Serrano's similarly misstated the applicable legal standard when it asked Judge Martone to reconsider Judge Carroll's order. Serrano's asserted that the jury's verdict "must be upheld if it is supported by substantial evidence." See R.253 at 12 (citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 1999)) (RE89a). Serrano's further argued that, although the district court should review the record as a whole, "it must disregard all evidence favorable to the moving party that the jury is not required to believe, and may not substitute its view of the evidence for that of the jury." See id. (citing Johnson, supra). Johnson, however, was primarily an appeal from a district court's grant of JMOL, and the language Serrano's quoted to Judge Martone is the standard for granting JMOL. See Johnson, 251 F.3d at 1227-29. A new trial, in contrast, can be granted even where substantial evidence exists to support the jury verdict if, based on the entire record, the judge who presided over the trial and heard the evidence is "left with the definite and firm conviction that a mistake has been committed." Landes, 833 F.2d at 1371-72. Although it is true, as Serrano's argued in its first motion to reconsider that, at least in the first instance, "Mr. Serrano's credibility was . . . an issue for the jury to determine," see R.225 at 14 (RE97a), that is not the end of the analysis. In considering whether to grant a new trial under Rule 59(a), the judge who presided over the trial is required to weigh all of the evidence, taking into account the witnesses' credibility, and to determine whether the jury's verdict was clearly contrary to the record as a whole. Moreover, in conducting this searching review, the district court is not required to view the evidence from the perspective most favorable to the prevailing party. United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999); Landes, 833 F.2d at 1371. Here, the overwhelming weight of the trial evidence demonstrated that Serrano's never offered Naeve an accommodation that would have eliminated her religious conflict. That evidence, coupled with the fact that Judge Carroll was entitled to assess Ric Serrano's credibility when he baldly testified that he had offered Naeve an unconditional transfer after having previously told the EEOC investigator that transfer was merely a possibility being considered, provided ample basis for Judge Carroll to determine that the jury's finding of accommodation was against the clear weight of the evidence. Since Judge Carroll's determination was not "clearly erroneous," there was also no manifest injustice, particularly since the outcome is not a directed verdict in the EEOC's favor but merely an opportunity for the EEOC to re-try the case before a new jury. Given the absence of either "clear error" or "manifest injustice," Judge Martone had no proper grounds to reverse Judge Carroll's order, and his order doing so constitutes an abuse of discretion. II. JUDGE MARTONE ALSO ABUSED HIS DISCRETION IN DENYING EEOC'S MOTION FOR RECONSIDERATION. Judge Martone further abused his discretion when he denied the EEOC's motion for reconsideration. In deciding to vacate Judge Carroll's "new trial" order, Judge Martone relied in significant part on an isolated statement from the EEOC's opposition memorandum that a transfer would have resolved the conflict. Although apparent from the EEOC's entire memorandum, Judge Martone failed to understand that the EEOC contended that only an unconditional transfer would satisfy Title VII's accommodation requirement, something Serrano's had never offered Naeve. To rectify Judge Martone's misunderstanding, the Commission moved for reconsideration and expressly clarified our contention that only an unconditional transfer would have accommodated Naeve's beliefs. See R.262.<11> Once the EEOC had provided this clarification, Judge Martone was left with only (1) conflicting testimony from Ric Serrano concerning whether he "offered" a transfer or simply mentioned it as a possibility, (2) unequivocal testimony from Naeve that Serrano's never actually offered her a transfer, and (3) strong circumstantial evidence, based on the consistent testimony of Ric Serrano, Theresa Serrano-Keel, and Naeve, that a transfer (whether actually offered or merely mentioned) was conditioned on a guarantee from Naeve that the same situation would not recur at the new location. As a matter of law, a transfer conditioned on Naeve's agreement to forego her religious beliefs at the new location could not satisfy Title VII. Furthermore, Judge Carroll was entitled to make a credibility judgment regarding Ric Serrano's various, inconsistent statements (a judgment that Judge Martone could not make, having not heard Ric Serrano testify). Given all of this, Judge Carroll's conclusion that the jury's finding of accommodation was against the clear weight of the evidence could not be "clearly erroneous," and Judge Martone abused his discretion when he denied the Commission's motion for reconsideration after the Commission clarified its position on "transfer."<12> Judge Martone denied the EEOC's request for reconsideration based, in part, on the court's additional mistaken belief that Naeve sought to proselytize at work, R.267 at 5-6 (RE18a-19a), something the EEOC never claimed and the trial record does not support. There is absolutely no evidence in the record that Naeve ever proselytized at work, and Serrano's' witnesses admitted they had never observed such behavior nor received any complaints of proselytizing by Naeve. See supra at 4. The trial court based this misunderstanding on a statement in the EEOC's opposition to Serrano's' motion for reconsideration-that a proper accommodation would have permitted Naeve "to continue in her lay ministry, thereby observing her religious beliefs." See R.267 at 4 (RE17a), quoting EEOC's Response at 11. The lay ministry that Naeve sought to continue was that if employees asked her what church she attended, she could respond with the name of her church, and if they thereafter began attending her church, she would not have to turn them away if they chose to join a Bible study she was leading. Indeed, Judge Martone's misunderstanding on both "transfer" and "proselytizing" underscores the importance of the district court's familiarity with the entire trial record before presuming to decide whether a particular jury finding was consistent with, or in conflict with, the clear weight of the evidence. As the Supreme Court recently explained, albeit in a different context, the "clear error" standard that Judge Martone applied here does not permit reversal of another court's ruling simply because the second court would have decided the case differently. See Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citing Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). Rather, a court that is reviewing another judge's decision under a "clear error" standard "must ask whether, 'on the entire evidence,' it is 'left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (emphasis added)). A review of the entire record is especially critical in this context, since the very decision that Judge Martone undertook to reconsider involved Judge Carroll's determination that the jury's verdict was against the clear weight of the record as a whole, not just a portion of it. See Landes, 833 F.2d at 1372. It is difficult to imagine how a judge who did not preside over the trial could possibly determine that the judge who presided over the trial had clearly erred in weighing the evidence as a whole without at least reviewing the entire trial transcript and all of the trial exhibits. In the EEOC's memoranda below, the EEOC called to Judge Martone's attention the particular pages on which specific testimony could be found. The EEOC argued, in addition, that a second judge could properly vacate an earlier judge's grant of a new trial based on the weight of the evidence only after, at a minimum, reviewing the entire trial record. R.262 at 7-8 (RE53a-54a); see also R.258 at 9-10 (RE69a-70a). Judge Martone apparently rejected this contention, stating first that the EEOC cited no authority for it, R.267 at 2 (RE15a), and then observing that it is the parties' responsibility to point out material portions of the record, stating: "We examined everything the [EEOC] brought to our attention." Id. at 3 (RE16a). Neither Judge Martone's opinion granting Serrano's' second motion for reconsideration, nor his opinion denying the EEOC's motion for reconsideration, gives any indication he ever reviewed the entire trial transcript. See generally R.259 (RE1a-11a), R.267 (RE14a-19a). Indeed, his opinion suggests quite the contrary. Judge Martone's mistaken conclusion that Naeve had proselytized at work and that the EEOC sought to enable her to continue to do so in the future, see discussion at 33-34, supra, is just one example of the erroneous conclusions that a non-presiding judge might reach when attempting to determine whether the jury's verdict was against the clear weight of the evidence without having reviewed the entire trial transcript. In sum, even if Judge Martone thought the weight of the trial evidence was a close call, he abused his discretion in second-guessing the judgment of the judge who presided over the trial, particularly without even reviewing the entire trial record. This principle is applicable in any case where the presiding trial judge's ability to judge the witnesses' credibility on the witness stand is integral to a determination of whether the verdict is against the clear weight of the evidence. The principle is particularly apposite here, where the record contains conflicting statements of a key defense witness, Ric Serrano, as to a critical issue in the case, i.e., whether Serrano's offered Naeve an unconditional transfer. The statements Ric Serrano made during the EEOC investigation, including an audio recording that was played for the jury and Judge Carroll, see supra at 8 n.2, indicate that transfer was considered by the company but abandoned before an offer was actually extended to Naeve. The inconsistency between these sworn statements and Ric's trial testimony raises serious doubts about the credibility of Serrano's' claims that it offered Naeve an unconditional transfer that she refused without justification. Judge Carroll, as the presiding trial judge, was in a position, and was unquestionably entitled, to assess Ric Serrano's credibility on the witness stand and to take his prior, conflicting statements into account in determining whether the jury's finding of "accommodation" was against the clear weight of the evidence. Only Judge Carroll was in a position to assess Ric's credibility first-hand, however. Judge Martone abused his discretion when he reversed Judge Carroll's informed judgment on the alleged grounds of "clear error," without having had the benefit of hearing the witnesses testify at trial and apparently without having even read the entire trial transcript.<13> III. CONSISTENT WITH THE POLICIES UNDERLYING THE "LAW OF THE CASE" DOCTRINE, WHERE TWO DISTRICT COURT JUDGES ASSIGNED TO THE SAME CASE AT DIFFERENT TIMES REACH DIFFERENT RESULTS ON THE SAME DISCRETIONARY QUESTION, THIS COURT SHOULD DEFER TO THE FIRST JUDGE'S DECISION. Wholly apart from the fact that the trial record does not support Judge Martone's conclusion that Judge Carroll committed "clear error" when he granted a new trial based on the great weight of the evidence, this Court should apply the general rule of deference in favor of Judge Carroll's order rather than Judge Martone's, for at least two reasons. First, appellate courts accord special deference to the trial judge who saw and heard the witnesses. See Globe Liquor Co. v. San Roman, 332 U.S. 571, 574 (1948). Second, the policy considerations that underlie the "law of the case" doctrine, see Best v. Shell Oil Co., 107 F.3d 544, 546-47 (7th Cir. 1997), militate in favor of deference by this Court to Judge Carroll's grant of a new trial. This Court has stated that, in reviewing a "new trial" order, it "owe[s] special deference to the district court's evaluation of the testimony at trial . . . in its conclusion that the evidence preponderates sufficiently heavily against the verdict to merit re-trial." See United States v. Kellington, 217 F.3d 1084, 1101 (9th Cir. 2000) (appeal of district court's grant of new criminal trial). The reason for this is, as this Court has explained, because the trial judge has a "greater opportunity and advantage to observe all the parties and witnesses involved." Maricopa County, Ariz. v. Maberry, 555 F.2d 207, 223 (9th Cir. 1977). Indeed, the breadth of the discretion accorded to the trial judge in a "new trial" order reflects the inescapable conclusion that a cold review of an entire trial transcript is no substitute for the trial judge's first-hand observations. As the Supreme Court noted in Globe Liquor, "[d]etermination of whether a new trial should be granted or judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart." 332 U.S. at 574 (quotation marks and internal citation omitted). In this instance, only Judge Carroll was able to make such a judgment. Judge Martone, with only a paper transcript of the trial (and no indication that he actually reviewed the entire transcript), was not able to make any credibility assessments and was severely hampered in his ability to weigh the trial evidence. In these circumstances, deference is properly accorded by this Court to Judge Carroll's order. Second, the policies underlying the "law of the case" doctrine support deference to Judge Carroll. The presumption that, absent compelling reasons, courts will not reconsider matters already decided reflects judicial interests in consistency, finality, and the conservation of judicial resources, among others. Analytical Eng'g, Inc. v. Baldwin Filters, Inc., 425 F.3d 443, 454 (7th Cir. 2005). As the Seventh Circuit has explained, "In situations where a different member of the same court re-examines a prior ruling, 'the law of the case doctrine . . . reflects the rightful expectation of litigants that a change of judges midway through a case will not mean going back to square one.'" See Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir. 2005) (citations omitted). Although the second judge has the authority to alter previous rulings in appropriate circumstances, "he is not free to do so . . . merely because he has a different view of the law or the facts from the first judge." Id.; Best, 107 F.3d at 546. Considerations of "consistency" and "finality" that underlie the "law of the case" doctrine strongly support deference by this Court to Judge Carroll, not Judge Martone. See, e.g., Williams v. Commissioner, 1 F.3d 502, 503-04 (7th Cir. 1993) (where first and second judges disagreed concerning the same, discretionary ruling, "neither might have committed reversible error, and the law of the case doctrine would require the court of appeals to defer to the first judge's ruling.").<14> As the Seventh Circuit has explained, "if both rulings concerned a discretionary matter, . . . the court of appeals should defer to the first judge's ruling . . . because the second judge would have abused his discretion in reopening this kind of ruling." Best, 107 F.3d at 547 (citing Williams, supra). Judge Martone reversed Judge Carroll's "new trial" order solely because he reached a different conclusion based on a paper review of selected portions of the trial transcript, without having had the benefit of hearing the witnesses testify first-hand. When a decision like this is based on a district court's exercise of discretion and depends critically on the court's consideration of the entire trial record and ability to assess witness demeanor and credibility, the general rule that the court of appeals defers to the district court requires deference to the first judge's determination. See Williams, supra. Here, both the clear weight of the trial evidence and the law of the case doctrine support reinstatement of Judge Carroll's new trial order. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to reverse Judge Martone's order granting Serrano's' second, untimely motion for reconsideration and vacating Judge Carroll's order for a new trial based on the clear weight of the evidence. We further urge this Court to reinstate Judge Carroll's order granting a new trial and to remand this case for further proceedings. STATEMENT OF RELATED CASES There are no related cases pending before this Court. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate 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 10,108 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: November 19, 2007 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and fifteen copies of the EEOC's opening brief as appellant and five copies of the Excerpts of Record with this Court on November 19, 2007, by Federal Express, postage pre-paid, and served two copies of said brief and one copy of the Excerpts of Record on the same date by the same means on the counsel of record indicated below. I further certify that on November 21, 2007, I filed an original and fifteen copies of the foregoing corrected opening brief with this Court by Federal Express, postage pre-paid, and served two copies of the foregoing corrected opening brief on counsel for the defendant on the same date by the same means at the following address: Counsel for Defendant/Appellee: Mark J. Ogden, Esq., and Peter C. Prynkiewicz, 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> "R.#" refers to the district court document number and "RE" refers to the appropriate page in the Excerpts of Record. "Tr." Refers to the trial transcript, except where otherwise noted, and "Tr.Exh.#" refers to the trial exhibit number. <2> The trial record contains conflicting evidence as to whether Ric Serrano actually offered Naeve a transfer and, if so, when. Ric Serrano testified at trial that when Naeve first told him about the Bible study on July 2, 2001, he told her the company "would" or "could" transfer Naeve to another restaurant, stating "there was a transfer offered" on that date. Tr.652:11-12, 654:17-655:8 (RE219a-221a). During cross-examination, however, Ric Serrano admitted that when he was deposed on October 31, 2003, he said that during his July 2, 2001, meeting with Naeve "I stated to her . . . that we might look at a transfer, but that I would get back to her after I spoke with the family." Tr.701:8-25 (RE244a). The EEOC played a portion of an audio-taped interview conducted during the EEOC's investigation in which Ric Serrano stated under oath, Tr.720:16-721:3 (RE248a- 249a), that on July 2 he told Naeve, in relevant part: "And I said . . . I dunno yet [let me] think about it um talk to our family uh possibly . . . transfer uh something along those lines but [let me] think about it. So that was on Monday and I left it at that and then . . . went back to the family." See Tr.723:13-724:5, 728:15-19 (RE251a-252a, 256a); R.207 Exh.2, Attachment 1 (RE138a). Ric Serrano's testimony that he offered Naeve a transfer on July 2 is also inconsistent with the sworn declaration he submitted to the EEOC during the EEOC's investigation, see Tr.725:16-726:11 (RE253a-254a), in which he placed the alleged transfer offer as occurring during a later meeting with Naeve and his sister, Theresa Serrano-Keel. Tr.726:23-727:18 (RE254a-255a). That meeting took place on July 6. Tr.447:15- 24, 596:10-19, 688:18-25 (RE191a, 214a, 238a). Naeve testified she was never actually offered a transfer to any other location. Tr.459:3-5, 886:4-9 (RE198a, 263a). <3> Naeve's testimony is corroborated by both Ric Serrano's sworn declaration and notes Naeve compiled shortly after these events. Ric's declaration described a meeting between himself, his sister Theresa Serrano-Keel, and Naeve, stating, in paragraph 6: "Theresa and I also proposed a transfer to another location for the same pay and position. . . . Miss Naeve, however, stated that she could not guarantee that the same situation would not happen again at another location. . . . Because she could not agree to refrain from socializing with her new staff, we did not uproot another general manager to effect the transfer." Tr.727:13-25 (RE255a). Naeve's notes from the same July 6 meeting stated, in relevant part: "Told [they told me] that transfer was too much of a hassle for them and was not an option . . . 'Same thing could happen at different store' Asked me if same thing would happen . . . told them I always remain professional at work but if someone came to me with a question about my church I'm going to give them the answer, and always act on my conscience". Tr.Exh.17 (RE113a); Tr.443:24-444:3, 447:22- 448:25 (RE188a-189a, 191a-192a). <4> The district court also ruled that the jury's answers were internally inconsistent because the jury could only reach the second question by answering "yes" to the first, which it had failed to do. The district court concluded there was "no way to 'harmonize' the jury's finding of fact on one issue with the jury's failure to make a required finding of fact on another issue." R.224 at 3 (RE25a). <5> Serrano's asked the district court to certify the new trial order for immediate appeal, and the court certified the question regarding the jury's answers to the written interrogatories. R.230, R.236, R.241. This Court denied Serrano's application for leave to appeal and remanded the case for trial. R.245 (RE92a). <6> In addition, under the district court's Local Rule Civ. 7.2(g), the court can consider an untimely motion for reconsideration only if there is "good cause." Judge Martone's finding of "good cause"-on the basis that Judge Carroll's order was "clearly erroneous"-constitutes an additional abuse of the court's discretion. <7> We pose the issue here as one of a conflict between Naeve's religious beliefs and Serrano's interpretation of the Management Code of Conduct, rather than a conflict between Naeve's beliefs and the Code itself, because on its face the Code's prohibition against supervisors "socializing" with subordinates appears to have no application to a church-sponsored Bible study. Bible study is a form of worship or religious practice. Both Ric Serrano and Theresa Serrano-Keel testified that the Code permits employees and supervisors to worship together in church. Tr.524:15-525:10, 652:11-17 (RE207a-208a, 219a); see also Tr.374:4-11 (Naeve testified that Serrano's told her okay to attend church with employees, but "faith sharing" in a Bible study would cause problems); 450:5-11 (same) (RE175a, 193a). Thus, their testimony that the Code bars employees and supervisors from engaging in virtually the same activities in a small-group Bible study is not only inconsistent, but demonstrates that Serrano's could have avoided any conflict had it simply interpreted its own policy in a manner more consonant with its literal terms and the company's admitted understanding of it. <8> In its closing argument at trial and in both its first and second motions for reconsideration, Serrano's argued that requiring the employees to attend another Bible study would have "allowed Ms. Naeve to completely exercise her alleged religious beliefs because she could have continued teaching her Bible study group and would not have violated the Policy because she would no longer be leading subordinates." Tr.964:3-967:21 (RE268a-271a); R.253 at 5 (RE82a), 13 (RE90a); see also R.225 at 15 (RE98a). Serrano's maintained this was consistent with Naeve's religious beliefs because she had "conceded that she did not need to have Serrano's employees in her Bible study to fulfill her alleged calling to teach a class for whomever attended." Id.; see also R.253 at 13 ("Naeve admitted that her Bible study did not have to include any Serrano's employees for her to satisfy her religious beliefs.") (RE90a). This misses the point, however. The EEOC never contended that Naeve's religious beliefs required her to lead a Bible study for her coworkers. Naeve testified simply that her religious beliefs compelled her to teach this introductory Bible study to anyone who chose to attend. When, through no encouragement on her part, three of her subordinates chose to attend, she could not turn them away. <9> In response to Ric Serrano's testimony that he offered Naeve a transfer with no strings attached and she turned it down, the EEOC offered evidence of the statements Ric made during the EEOC investigation indicating that transferring Naeve was merely a possibility the company was considering, and Naeve's testimony that she never received a specific transfer offer. See supra at 8 n.2. <10> Moreover, the jury indicated "no decision" on the first question, which asked whether the EEOC had proven that Naeve "held a sincere religious belief that required her to lead a Bible study class for anyone who chose to enroll" and had informed Serrano's of this belief. RE13a. Given this non-response to the first question, it is not clear whether the jury actually understood the nature of the religious belief that it thought Serrano's had accommodated when it answered "yes" to the second question. Since it is unclear precisely what religious belief the jury understood was being accommodated, it certainly cannot be said that the jury necessarily found it was an offer of transfer that accommodated it. <11> An unconditional transfer was not simply Naeve's preferred form of accommodation, as Judge Martone erroneously stated. See R.267 at 6 (RE19a). The "condition" to which Naeve objected was the requirement that she guarantee ahead of time a willingness to compromise her religious beliefs at the new location. Whether express or implied, the existence of this condition was what made Serrano's' proposed transfer an ineffective accommodation. <12> In denying the EEOC's motion for reconsideration, Judge Martone stated that the EEOC offered "no citation to the trial transcript to support its contention that [Serrano's'] transfer offer was conditioned upon Naeve abandoning her religious beliefs." R.267 at 5 (RE18a). This is simply incorrect. The Commission provided the relevant transcript pages in its opposition to Serrano's' second motion for reconsideration. See, e.g., R.258 at 4-5 (citing transcript references for, inter alia, the propositions that unconditional offer was never extended to Naeve; Serrano's said transfer was not an option after Nave was unable to guarantee same situation would not arise in new location; transfer to another restaurant, even if it was offered, would not have accommodated Naeve's beliefs fully because same restrictions would apply in new location) (RE64a-65a). In the same document, as well as in our motion for reconsideration, we explained our contention that this demonstrated the transfer was not an effective accommodation. See id. at 12-13 ("Defendant conditioned the transfer on Naeve's guarantee she would never permit in the future other employees to attend a Bible study" which "had the practical effect of conditioning continued employment on a promise Naeve would forego observing her religious belief."), 14 ("possibility of a transfer [was] conditioned on Ms. Naeve's promise to abandon her sincerely held religious beliefs") (RE72a- 74a); R.262 at 12-13 (same) (RE58a-59a). <13> For the same reason, Judge Martone also abused his discretion when he permitted Serrano's to make an untimely motion for reconsideration. The district court's local rules bar an untimely motion for reconsideration unless there is "good cause." Judge Martone's sole basis for finding that Serrano's had "good cause" to bring its second, belated motion for reconsideration, almost eighteen months after Judge Carroll entered the "new trial" order, was the alleged "clear error" of Judge Carroll's order. As demonstrated above, Judge Carroll's decision on this point was not clearly erroneous. Therefore, "good cause" did not exist for Serrano's belated motion, and Judge Martone abused his discretion in so finding. <14> This principle has even more force here because Judges Carroll and Martone were not called upon to decide the identical question. Only Judge Carroll was faced with a motion for a new trial, for which the trial judge has discretion to weigh the trial evidence and assess witness credibility. Judge Martone, on the other hand, had before him only an untimely, second motion for reconsideration, for which he was required to find, first, "good cause" to hear the motion out of time and, second, "clear error" in Judge Carroll's exercise of his discretion (since there was no new evidence and no change in the law). Thus, although both district court judges considered the EEOC's entitlement to a new trial, the posture in which each judge considered the question imposed very different legal burdens on their respective discretionary determinations. Under these circumstances, deference is even more properly accorded to Judge Carroll's decision. Cf. Best, 107 F.3d at 547 (situation "more complex if second ruling was not in the same posture as the first," but where both rulings concern a discretionary matter, reviewing court should defer to first judge's ruling).