No. 05-80145 ___________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. SERRANO'S MEXICAN RESTAURANTS, LLC, Defendant-Petitioner. ____________________________________________________________ On Petition for Leave to Appeal from the United States District Court for the District of Arizona, Hon. Earl H. Carroll, United States District Judge Civil Action No. 02-1608 PHX-EHC ____________________________________________________________ OPPOSITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO DEFENDANT SERRANO'S PETITION FOR LEAVE TO APPEAL ___________________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney U.S. Equal Employment VINCENT J. BLACKWOOD Opportunity Commission Acting Associate General Counsel 1801 L Street, NW, Room 7010 Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4791 (tel) Assistant General Counsel (202) 663-7090 (fax) susan.oxford@eeoc.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S OPPOSITION TO SERRANO'S PETITION FOR PERMISSION TO APPEAL In this Title VII action, the Equal Employment Opportunity Commission ("EEOC" or "Commission") claims that Serrano's Mexican Restaurants failed to accommodate the religious beliefs of one of its managers and terminated her for leading a Bible study, during non-working hours, attended by three of her subordinates (who also attended her church). After the jury ruled in Serrano's favor, the district court granted the EEOC's motion for a new trial on the grounds that the jury's answers on the verdict form were internally inconsistent and could not be harmonized, and the verdict, based on the jury's finding that Serrano's accommodated the manager's religious beliefs, was against the clear weight of the evidence. R.224.<1> Serrano's petitions this Court under 28 U.S.C. § 1292(b) for immediate review of two questions: whether the district court had authority to set aside the jury's verdict based on internally inconsistent interrogatory responses, and whether the district court applied the proper standard when it held that the jury's verdict is against the weight of the evidence. See Petition ("Pet.") at 1. Serrano's mischaracterizes the district court's second ruling, since the district court actually held that the jury's verdict is against the clear weight of the evidence. See R.224 (Order at 3). In any event, 28 U.S.C. § 1292(b) permits review of a non-final order that "involves a controlling question of law as to which there is substantial ground for difference of opinion," if "immediate appeal from the order may materially advance the ultimate termination of the litigation." The district court certified only the first question as meeting this standard. R.236 (Order at 2). Because neither question satisfies the three statutory criteria established in § 1292(b), Serrano's Petition should be denied. BACKGROUND Serrano's operates a chain of Mexican restaurants. In 2001, there were eight restaurants, and Terra Naeve served as the general manager for one of them. Tr.306. On August 30, 2002, the EEOC filed this lawsuit alleging Serrano's discriminated against Ms. Naeve because of her religion in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). R.1. The EEOC alleged that Serrano's failed to accommodate Ms. Naeve's religious beliefs and terminated her for leading a Bible study that several of her subordinates chose to attend. Serrano's claimed that Ms. Naeve's Bible study violated a company policy prohibiting supervisors from socializing with subordinates outside of work, a policy Serrano's implemented to protect employees from sexual harassment by supervisors. See Tr.490-95, 575-78, 656. Ms. Naeve began working as the General Manger of Serrano's Power Road restaurant in March 2000. Tr.301. Unrebutted evidence showed Ms. Naeve did not discuss her religious beliefs at work or initiate any conversations about the church she attended. Tr.358. At various times, several employees asked her if she attended church and she told them she attended New Hope Community Church. Tr.325-28. Over time, three Power Road employees began attending New Hope. Tr.325. Ms. Naeve testified concerning her very strong belief in, and practice of, following God's teaching and direction as reflected in the Bible and as she understood it through prayer. Tr.395-96. In March 2001, the pastor of New Hope nominated Ms. Naeve to serve as a "Servant Leader," or lay minister, for the church. Ms. Naeve testified that she accepted this invitation after feeling led, through prayer, that this was God's intention for her. Tr.320-21. Among other things, Servant Leaders are required to lead a Focus Group, or small group Bible study, which is an important element of New Hope's lay ministry. Tr.321-22. Ms. Naeve testified that after praying with her minister, she felt called by God to lead an introductory Bible study, something the church did not have at the time. Tr.322-24, 372. The three employees from Serrano's Power Road restaurant who attended New Hope learned of the introductory Bible study through announcements at church and attended the first session on June 26, 2001. Tr.330-35. Serrano's had recently introduced a new Management Code of Conduct (the "Code"). Tr.310. Among other things, the Code stated: "[A]s a manager, you cannot socialize with your staff outside of work." Trial Exhibit ("Ex.") 2. Ms. Naeve understood this to prohibit managers from "getting together in drinking and partying or having a relationship, a romantic relationship, . . . with an employee." Tr.312-14, 317. Nothing in the provision, and nothing said at the meeting when Serrano's introduced the new Code to its managers, suggested this anti-fraternization provision had anything to do with a supervisor's religious practices or observances. Tr.314. In fact, members of the Serrano family testified that some Serrano's employees attend the same Catholic church as the Serrano family, and this was not considered a violation of the anti-socialization policy. Tr.450, 524-25, 652. Ms. Naeve did not believe that the participation of three Serrano's employees in the Bible study she was leading conflicted with the prohibitions in the Management Code of Conduct, given the Bible study's focus on religious instruction and fellowship rather than "socializing." Tr.363. Nevertheless, Ms. Naeve wanted to be certain the Serrano family did not think she was doing anything behind their back, so she informed Serrano's General Manager, Ric Serrano, that three employees who attended her church were attending a Bible study she was leading on Tuesday evenings (her day off). Tr.360-62. Ric Serrano was not certain, at the time, that studying the Bible with subordinates violated company policy, saying later that it would depend on how the Bible study impacted the functioning of the restaurant. Tr.719-23. Without first trying to determine whether the Bible study was negatively impacting her ability to manage the Power Road store, Serrano's fired Ms. Naeve on July 10, 2001, for violating the policy prohibiting managers from socializing with subordinates. Tr.663, 722-23. Before she was terminated, Ms. Naeve asked Serrano's to accommodate her religious beliefs by exempting Bible study from Serrano's "anti-socializing" policy, and suggested various ways Serrano's could verify she was not showing any favoritism to the employees who studied the Bible with her. Tr.374-75, 664-68. Serrano's rejected her suggestions, claiming they would not be "in the best interests of the Serrano corporation" or would take too much time to effectuate. Tr.534-35, 664-68. Ric Serrano suggested Ms. Naeve could stop leading the Bible study, or the employees could attend a Bible study led by someone else, either immediately or after a month or two. Tr.370, 658-59, 663, 669, 696. The employees, however, were specifically seeking an introduction to Christianity, and at the time Ms. Naeve led New Hope's only introductory Bible study. Tr.372. Ms. Naeve declined these suggestions, in any event, as inconsistent with her religious beliefs that she should not turn anyone away from the Bible study she felt spiritually compelled to lead.<2> Tr.370, 392-95. At trial, Ric Serrano claimed he also offered to accommodate Ms. Naeve by transferring her to another location. Tr.654. The EEOC disputed that such an offer was ever extended to Ms. Naeve. E.g., Tr.459, 654-55, 701, 886. Serrano's eventually told Ms. Naeve that a transfer was not an option after Ms. Naeve explained that she could not guarantee the same situation would not arise in any new location.<3>. Tr.447-48, 725, 727. The six-day trial generated close to 1,000 pages of trial transcript. In addition to the above, Ms. Naeve's pastor corroborated Ms. Naeve's unrebutted testimony concerning the sincerity of her religious beliefs, particularly her spiritual belief that God wanted her to lead this particular introductory Bible study and not turn anyone away. Tr.469-72. Serrano's witnesses admitted the company had never experienced any problems because of "socializing" in "religious based activities." Tr.705. Finally, the EEOC presented evidence that accommodating Ms. Naeve's religious beliefs would not have imposed an undue hardship, and that Serrano's never offered an accommodation that would have allowed Ms. Naeve to exercise her religious beliefs fully. Tr.654-59, 664-69, 696, 886-87. The jury verdict form contained special interrogatories and a general verdict. The jury was instructed to determine, first, whether Ms. 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. If the answer was "no," the jury was instructed to proceed to the verdict; if the answer was "yes," the jury was instructed to answer the second interrogatory – asking whether Serrano's had accommodated Ms. Naeve's religious beliefs. Disregarding these instructions, the jury wrote "No decision" on the first question and answered the second question in the affirmative. The EEOC moved for judgment as a matter of law ("JMOL") or a new trial. R.207. The court denied JMOL but granted a new trial on two grounds. R.224. With respect to the jury verdict form, the district court stated: "The interrogatories . . . are inconsistent, because the second interrogatory requires that the first interrogatory be answered ‘yes'," noting that if the jury was unable to agree on the first interrogatory, a mistrial would have been ordered. Id. at 2-3. Separately, the district court noted that a court may grant a new trial under Rule 59 "if the verdict is against the clear weight of the evidence." Id. at 3 (citations omitted). The court expressly found that "a verdict in this case, based on the jury finding that Defendant reasonably accommodated Terra Naeve's sincerely held religious beliefs, is against the clear weight of the evidence" and ordered a new trial on that basis, as well. Id. PERMISSION TO APPEAL SHOULD BE DENIED The district court's grant of a new trial does not meet the exceptional requirements for interlocutory review of a non-final order under 28 U.S.C. §1292(b).<4>. See In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981) (§ 1292(b) to be used "only in exceptional situations" where interlocutory appeal will "avoid protracted and expensive litigation"). In considering a request for interlocutory appeal, this Court first "determine[s] whether the district court has properly found that the [three] certification requirements of the statute have been met: . . . (1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." Id. Even where all three elements have been met, however, this Court need not hear the appeal, and the second step in this Court's analysis is to decide whether to exercise discretion and accept jurisdiction. Id. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (even if district judge certifies order under § 1292(b), appellant still has the burden of persuading court of appeals that "exceptional circumstances" justify departure from basic policy of postponing appellate review until after the entry of final judgment) (citation omitted). Serrano's Petition does not meet the criteria in § 1292(b). The district court granted a new trial on two separate grounds, either of which fully and independently supports the district court's determination that a new trial is warranted. Only the first, "the form of the jury verdict,"even arguably presents a question of law, though not one that meets the requirements of § 1292(b), and this is the only question the district court certified for interlocutory appeal. See R.236 (Order at 1-2). The second, based entirely on the weight of the evidence, does not involve a question of law at all, let alone a "controlling" question on which there is a "substantial ground for difference of opinion." As a consequence, interlocutory review of the first question in Serrano's Petition, even if it met the other requirements for § 1292(b) certification, would not materially advance the ultimate termination of this litigation because a new trial would still be warranted on the second ground, a fact-based question that this Court ought not to be inclined to review at this stage. Appellate review should properly await the completion of a new trial and the entry of final judgment. A. This Court should exercise discretion to deny the petition because interlocutory review would not materially advance this litigation. 1. The ultimate resolution of this case will not be advanced by a review of the question certified by the district court because the district court granted a new trial on the additional and independent ground that the jury's verdict is against the clear weight of the evidence. As we explain infra, the sole issue certified by the district court – the form of the jury verdict – is not a "controlling question of law" within the meaning of § 1292(b). Even if it were, however, its immediate resolution would not "materially advance" the ultimate termination of this litigation because the district court granted a new trial on a second, completely separate, ground – that the verdict is against the clear weight of the evidence. Resolution of an issue on an interlocutory basis materially advances the ultimate termination of a lawsuit within the meaning of § 1292(b) only where it clarifies the legal standards to be applied, see Steering Comm. v. United States, 6 F.3d 572, 575 (9th Cir. 1993), or "would serve to avoid a trial or otherwise substantially shorten the litigation." McFarlin v. Conseco Servs., 381 F.3d 1251, 1259 (11th Cir. 2004). Inasmuch as this Court will reverse an order granting a new trial only if it finds "the district court abused its discretion as to each ground upon which its decision was based," William Inglis & Sons Baking Co. v. ITT Cont'l Baking Co., 668 F.2d 1014, 1027 (9th Cir. 1981) (emphasis added), and the district court's second ground for ordering a new trial was not certified and is not otherwise appropriate for interlocutory review, this matter would be re-tried irrespective of whether the district court correctly ruled that the jury's inconsistent answers cannot be harmonized. Thus, interlocutory review of the question certified will not materially advance this case. See In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) ("When litigation will be conducted in substantially the same manner regardless of [the court's] decision, the appeal cannot be said to materially advance the ultimate termination of the litigation.") (citation omitted). 2. The order granting a new trial based on the clear weight of the evidence is not appropriate for interlocutory review because it is purely factual in nature. Although this Court has authority under § 1292(b) to review an issue not certified by the district court but part of the same order, Bassidji v. Goe, 413 F.3d 928, 935 (9th Cir. 2005), this Court should decline to exercise such discretion here because the non-certified issue is purely factual in nature. Section 1292(b) requires, at the outset, a "controlling question of law." 28 U.S.C. § 1292(b); In re Cement Antitrust Litigation, 673 F.2d at 1026. The district court's grant of a new trial on the ground that the jury's verdict is against the clear weight of the trial evidence does not involve a question of law at all. It is a factual determination, inextricably tied to the extensive trial record in this case and vested in the trial court's sound discretion. Such a fact-intensive question is not appropriate for interlocutory review, and the district court properly declined to certify it in its November 23 Order. R.436; see McFarlin, 381 F.3d at 1259 (§ 1292(b) should be reserved for review of a pure, controlling question of law without having to determine the facts); Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 239 (D.D.C. 2003) (where crux of issue is fact-dependant, § 1292(b) appeal not justified). Indeed, in order for this Court to determine whether the district court abused its discretion in finding the verdict against the clear weight of the evidence, the Court would have to review the entire trial record, improperly embroiling this Court in consideration of almost 1,000 pages of trial transcript. In all likelihood, such a full-blown factual review would substantially delay, rather than materially advance, this litigation. See John v. United States, 247 F.3d 1032, 1051 (9th Cir. 2001) (only reason for interlocutory appeal is to facilitate disposition "by getting a final decision on a controlling legal issue sooner rather than later") (Rymer, J., writing separately). In an unconvincing effort to create a legal question where none exists, Serrano's argues this Court should review the grant of a new trial because the district court did not explain why it found the jury's verdict to be against the clear weight of the evidence. Serrano's asserts that "[t]he district court's lack of analysis or discussion of the evidence raises substantial questions as to whether it applied the proper standard in granting the EEOC's motion for new trial." Pet. at 14-16. Citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001), Serrano's claims that the district court was obligated to "disregard all evidence favorable to the moving party that the jury is not required to believe" and uphold the jury's verdict if it was supported by "substantial evidence." See Pet. at 14-15. Johnson was an appeal from a district court's grant of JMOL, and the language Serrano's quotes is the standard for granting JMOL. See 251 F.3d at 122-29. A different test governs motions for a new trial. "The existence of substantial evidence does not . . . prevent the court from granting a motion for a new trial pursuant to Fed.R.Civ.P. 59 if the verdict is against the clear weight of the evidence." Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987); see also United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999) ("trial court may grant a new trial . . . if ‘the verdict is contrary to the clear weight of the evidence . . . .'") (citation omitted) (emphasis added)). In considering whether to grant a new trial, "[t]he judge can weigh the evidence and assess the credibility of witnesses," and the district court is not limited to "view[ing] the evidence from the perspective most favorable to the prevailing party." Id. To grant a new trial based on the clear weight of the evidence, the district court need only be "left with the definite and firm conviction," based on the entire evidence, "that a mistake has been committed." Id. at 1372 (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806, at 48-49 (1973)). Unlike the de novo review of JMOL orders, Johnson, 251 F.3d at 1226, this Court reviews decisions granting or denying a new trial under a deferential "abuse of discretion" standard. See Landes, 833 F.2d at 1371-72. Although the district court plainly applied the "clear weight of the evidence" standard, see R.224 (Order at 3), Serrano's argues that review should be granted because the district court failed to set forth its reasons for granting a new trial. Pet. at 15-16. It is well settled that "[a] trial judge is not required to enter supporting findings of facts and conclusions of law when granting a new-trial motion." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (citing Fed.R.Civ.P. 52(a)); cf. Dias v. Bank of Hawaii, 764 F.2d 1292, 1294 (9th Cir. 1985) ("most rulings on motions do not require findings of fact") (per curiam) (dicta). Serrano's cites no legal support, and there is no basis, for a different requirement here. All this leaves is the purely factual issue of whether the district court properly exercised its considerable discretion in applying the "clear weight of the evidence" standard to this trial record. This issue is not appropriate for interlocutory review. See McFarlin, 381 F.3d at 1259 (issue that turns on whether district court properly applied settled law to evidence of a particular case is antithesis of proper § 1292(b) appeal). B. The sole issue certified by the district court for interlocutory appeal is not a "controlling question" within the meaning of § 1292(b). The sole issue the district court certified for review – the form of the jury verdict – does not involve a "controlling question of law," the first criteria for granting interlocutory review under § 1292(b). See 28 U.S.C. § 1292(b); In re Cement Antitrust Litigation, 673 F.2d at 1026. The legal standards in this Circuit for identifying and addressing inconsistent jury verdicts under Fed.R.Civ.P. 49(b) are clear: "Inconsistencies involving findings of fact, such as those in special verdicts and interrogatories," may arise, among other ways, when a jury "return[s] answers that plainly violate its instructions." Zhang v. Amer. Gem Seafoods, Inc., 339 F.3d 1020, 1037 (9th Cir. 2003). This is precisely what occurred in this case. See also id. at 1038 ("we review the consistency of the jury's verdict ‘in light of the instructions given.'"). The district court is required to reconcile any apparent inconsistency, if possible. Id. As this Court recently reiterated: When confronted by seemingly inconsistent responses to special verdict interrogatories, a trial court has a duty to harmonize those responses whenever possible. In doing so, the court "must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and ... [t]he consistency of the jury verdicts must be considered in light of the judge's instructions to the jury." El-Hakem v. BJY Inc., 415 F.3d 1068, 1074 (9th Cir. 2005) (citations omitted), cert. pet. pending, No. 05-846 (U.S.). The district court, citing these cases, articulated the correct legal standard. R.224 (Order at 3). This case presents no "question" requiring further clarification of the standard. All that is in dispute is whether the district court correctly applied these well-established principles to the jury's answers in this case. Serrano's argues, nevertheless, that the district court's resulting order presents a "controlling" question because if this were the only basis on which the district court granted a new trial, and if this Court granted permission to appeal and then reversed the district court, this litigation would be resolved in Serrano's favor. See Pet. at 8 ("Here, reversal of the district court's August 31, 2005 Order would terminate this litigation with judgment for Serrano's."). This is not what "controlling" means in § 1292(b), however. The term "controlling" in § 1292(b) refers to a governing legal question, the answer to which will have a significant impact on the adjudication of the parties' legal rights by clarifying the standards or procedures to be applied in the litigation. McFarlin, 381 F.3d at 1256-58; see Lewis v. Elliott, 628 F. Supp. 512, 524-25 (D.D.C. 1986) (district court certified, for § 1292(b) appeal, "critical legal issues" involving standard and burden of proof to apply in second trial) (cited in Pet. at 6). "Controlling legal questions" include, for example, disputes over statutory construction. See, e.g., United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir.), cert. denied 126 S.Ct. 828 (2005) (interlocutory review granted to resolve whether defendant can assert "innocent owner" defense in forfeiture action); Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090 (9th Cir. 1999) (interlocutory review proper to determine whether Boren Amendment applies to out-of-state medical providers). A legal question is also "controlling" if it determines whether state or federal law applies, Bassidji, 413 F.3d at 935; United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605 (7th Cir. 2000), or resolves the proper forum in which to litigate the claim. See Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 1996) (determining if case is subject to arbitration is "controlling question of law" because it will avoid needless expense and delay of litigating case in wrong forum); Lee v. Amer. Nat'l Ins. Co., 260 F.3d 997, 1000 (9th Cir. 2001) (review of legal question of plaintiff's Art. III standing, to determine if district court properly refused remand to state court). A question is not "controlling" within the meaning of § 1292(b) simply because it is outcome determinative. Cf. Ahrenholz v. Bd. of Trustees, 219 F.3d 674, 676 (7th Cir. 2000) (federal scheme does not provide for immediate appeal solely because it may advance the proceedings in district court). Rather, a controlling question determines the legal rule or standard applicable to the case. E.g., Talbert v. Kelly, 799 F.2d 62, 65 (3d Cir. 1986) (appeal permitted where order granting new trial rested on legal ruling that city was liable for bail policy that resulted in plaintiffs' wrongful detention); Cabral v. Sullivan, 961 F.2d 998 (1st Cir. 1992) (new trial order rested on question of first impression concerning consequences of including alternate jurors in jury deliberations, contrary to local court rule).<5> In contrast, the ruling certified here involves only the application of settled law to the jury's answers. Section 1292(b) is not intended to expedite review of a district court's routine or discretionary rulings during the course of the litigation. U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (§ 1292(b) "not intended merely to provide review of difficult rulings in hard cases") (per curiam). The district court's ruling on the consistency of the jury's answers is a routine matter of trial procedure. The correctness of this ruling does not need to be resolved now in order for the parties to litigate their legal rights and obligations under Title VII in a new trial, so its resolution will not "advance" the litigation in that sense. Indeed, it is almost certain that the district court and the parties will ensure the same situation does not recur in a second trial. Thus, there is no compelling need to appeal this issue before the second trial, and the court's ruling is properly reviewable following entry of final judgment. See United States v. 4.0 Acres of Land, 175 F.3d 1133 (9th Cir. 1999). The issue certified below is not a "controlling question of law" within the meaning of § 1292(b). Therefore, Serrano's Petition should be denied. C. Serrano's has not established a "substantial ground for difference of opinion." The Petition also fails to demonstrate a "substantial ground for difference of opinion" on the issue certified. See Pet. at 11-14. The legal standards for reviewing a jury's answers for possible inconsistency are well-established. See discussion at 14-15, supra. The district court reached the correct result here when it ruled that the jury's failure to answer the first interrogatory cannot be harmonized with the jury's answer to the second interrogatory or its verdict in Serrano's favor. By responding "no decision" to the first question, the jury indicated it never made a finding concerning the existence, nature or scope of Ms. Naeve's sincerely- held religious beliefs. Absent such a finding by the jury, it is impossible to assess the validity of the jury's determination that Serrano's accommodated Ms. Naeve's beliefs. If, for example, the jury incorrectly believed that Serrano's provided a complete accommodation or that a complete accommodation was not required, its finding as to the second question would be contrary to the instructions given, see Tr.896, and inconsistent with a verdict in favor of Serrano's. However, because the jury made no finding as to question number one, it is impossible to determine whether the jury properly performed its functions or patently disregarded the district court's instructions. The district court acted well within its discretion in ruling that the jury's failure to follow the unambiguous instructions on the jury verdict form warrants a new trial here. See R.224 (Order at 2-3). Serrano's other arguments likewise have no merit. Serrano's wrongly contends that once judgment has been entered, a district court has no authority to order a new trial under Fed.R.Civ.P. 49(b). See Pet. at 9. Rule 49(b) contains no such restriction. Rule 59(b) expressly permits a party to file "[a]ny motion for a new trial . . . no later than 10 days after entry of the judgment," (emphasis added), and the EEOC's motion for a new trial was timely under that rule. See Los Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351, 1353 (9th Cir. 1987) (allowing motion for new trial based on inconsistency in jury verdict, even though filed after judgment was entered). The EEOC did not waive its objection to the verdict by failing to assert it before the jury was dismissed, as Serrano's further contends. Pet. at 10-11. In Los Angeles Nut House, this Court held that a party's failure to object before the jury is dismissed does not waive the right to assert inconsistencies in a jury's answers. 825 F.2d at 1354-56 (concluding "waiver" would be inconsistent with a "sensible reading" of Rule 49(b)). Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995), cited in Serrano's Petition at 10, did not purport to overrule this Circuit precedent. In any event, the district court in this case dismissed the jury without first apprising the parties of the jury's answers, and the EEOC was unaware, at that point, of any basis for opposing the jury's dismissal.<6> Tr.995-96. Serrano's argument boils down to its contention that if the district court erred in granting a new trial, correcting the "error" now rather than later will save the company from undergoing a second trial. Congress did not intend § 1292(b) to be used in this manner. See Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970) (appeal under § 1292(b) limited to "controlling questions of law," not "convenience to the litigants"). Since the Petition does not meet any of § 1292(b)'s requirements, this Court should exercise its discretion and deny review. WHEREFORE, the Commission urges this Court to deny Serrano's Petition. Respectfully submitted, JAMES L. LEE ____________________________ Deputy General Counsel SUSAN R. OXFORD Attorney, U.S. EEOC VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7010 Acting Associate General Counsel Washington , D.C. 20507 (202) 663-4791 (tel) LORRAINE C. DAVIS (202) 663-7090 (fax) Assistant General Counsel susan.oxford@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that an original and four copies of the EEOC's opposition to Serrano's Petition for Leave to Appeal were sent to the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit this 20th day of January, 2006, by Federal Express next-business-day delivery, and a copy sent on this same day, by the same means, to the following counsel of record: J. Mark Ogden, Esq. Peter Prynkiewicz, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON, P.C. Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, Arizona 85016 Theodore A. Schroeder, Esq. Dominion Tower 625 Liberty Avenue, 26th Floor Pittsburgh, Pennsylvania 15222 (courtesy copy) _____________________________ Susan R. Oxford Attorney *********************************************************************** <> <1> “R.*” refers to the district court docket number and “Tr.” to the trial transcript page. Relevant portions of the record are in Serrano’s Appendix of Exhibits and in the EEOC’s Supplemental Appendix of Exhibits. <2> As Ms. Naeve explained: “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 manager'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 to 15. <3> In disputing that a transfer was ever offered, the EEOC relied on two prior, inconsistent statements that were read into the record during trial: Ric Serrano’s deposition testimony, and his statement to the EEOC investigator under oath, that he told Ms. Naeve he would talk to his family about a possible transfer and then get back to her. See R.207 (EEOC’s Motion for JMOL at 13 & n.1). In any event, Serrano’s never offered to suspend the policy at any new location, so transfer to another restaurant, even if it was offered, would not have accommodated Ms. Naeve’s beliefs fully. The persons currently attending the Bible study would no longer be subordinates, but the same restrictions would apply in the new location. Tr.379-80. <4> An order granting a new trial is a non-final order not appealable under 28 U.S.C. § 1291. Eaton v. Nat’l Steel Prods. Co., 624 F.2d 863, 864 (9th Cir. 1980) (citing Wright & Miller, Federal Practice & Procedure, § 3915.5). <5> Serrano’s cites Cabral as an example of a new trial order certified under § 1292(b). See Pet. at 6. Cabral is distinguishable, however, because the district court’s grant of a new trial was based solely on a legal ruling on a question of first impression in the First Circuit. 757 F. Supp. 107, 112 (D. Mass. 1991). Repola v. Morbark Indus., 980 F.2d 938 (3d Cir. 1992), see Pet. at 6, is similarly distinguishable. After one of the two defendants was found liable in the first trial, that defendant appealed. The plaintiff did not cross-appeal the first jury’s finding of “no liability” as to the second defendant. The Third Circuit remanded for a new trial, and the district court ordered both defendants to submit to the retrial. Id. at 939. The second defendant was granted permission under § 1292(b) to challenge the district court’s interpretation of the Third Circuit’s remand order as encompassing both defendants, and the Third Circuit reversed. Id. <6> In any event, Serrano’s has itself waived this argument by not asserting it in response to the EEOC’s motion for a new trial, raising it for the first time in Serrano’s subsequent motion for reconsideration. Compare R.210 (Serrano’s Response to EEOC’s Motion for JMOL) with R.225 (Serrano’s Motion for Reconsideration, at 7).