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 1997-04

Michael D. Tribulak v. Minirth-Meier-Rice ( 1997 )


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  •                              United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 95-4008
___________
Michael Dennis Tribulak,                   *
*
Appellant,                 *
*    Appeal from the United States
v.                                 *    District Court for the
*    Eastern District of Arkansas
Minirth-Meier-Rice Clinic,                 *
*          [UNPUBLISHED]
Appellee.                  *
___________
Submitted: November 7, 1996
Filed: April 15, 1997
___________
Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
___________
PER CURIAM.
Michael D. Tribulak appeals from the final judgment of the District
1
Court       for the Eastern District of Arkansas granting defendant Minirth-
Meier-Rice Clinic (MMR) judgment as a matter of law in his employment
discrimination and contract action.            For the reasons discussed below, we
affirm.
Tribulak,    a   Southern   Baptist,    was   hired    by   MMR,   a   Christian
counseling clinic, as a therapist in June 1989.               After Tribulak obtained
his Arkansas license in February 1990, he conducted group
1
The Honorable Susan Webber Wright, United States District
Judge for the Eastern District of Arkansas.
marital and family therapy.    For a two-year period, during Tribulak's
separation and divorce, MMR restricted the marital casework Tribulak could
conduct and required that his therapy sessions be supervised.       MMR also
advised Tribulak that he needed to include more prayer and biblical
references in his counseling, which he felt was inappropriate.       Tribulak
resigned in November 1992.
After exhausting his administrative remedies, Tribulak brought an
action under Title VII of the Civil Rights Act of 1964, claiming, inter
alia, MMR discriminated against him on the basis of his sex and his
Southern Baptist religious beliefs.        On the second day of trial at the
close of Tribulak's case, the district court granted MMR's motion for
judgment as a matter of law.
The district court concluded that Tribulak failed to make a prima
facie case of religious discrimination.       Although the evidence indicated
MMR encouraged Tribulak to pray with some of his patients which Tribulak
thought improper, the district court held Tribulak failed to establish that
his failure to pray was consistent with his sincerely-held religious
beliefs or that the restrictions during his own marital difficulties were
punitive or a result of religious discrimination.          In addition, the
district court concluded Tribulak did not establish a prima facie case of
sex discrimination, because the evidence showed he was not similarly
situated to the female therapists.
"In ruling on a [Federal Rule of Civil Procedure] 52 motion the trial
court need not consider the evidence in a light favorable to the plaintiff
and may render judgment for the defendant if it believes the plaintiff's
evidence is insufficient to make out a claim."       Geddes v. Northwest Mo.
State Univ.,
    49 F.3d 426
    , 429 n.7 (8th Cir. 1995).    A finding made pursuant
to Rule 52(c) is
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reversible only if it is clearly erroneous.
    Id.
       In the absence of a trial
transcript, this court cannot review the district court's findings for
clear error.   See Meroney v. Delta Int'l Mach. Corp.,
    18 F.3d 1436
    , 1437
(8th Cir. 1994).   In addition, we cannot review Tribulak's arguments that
the district court erred in admitting or excluding evidence.      See Schmid
v. United Bhd. of Carpenters,
    827 F.2d 384
    , 386 (8th Cir. 1987) (per
curiam), cert. denied,
    484 U.S. 1071
     (1988).
Accepting the district court's factual findings as true, we agree
that Tribulak did not prove a prima facie case of religious discrimination,
see Johnson v. Angelica Unif. Group, Inc.,
    762 F.2d 671
    , 673 (8th Cir.
1985) (to make prima facie case of religious discrimination, employee must
plead and prove he holds bona fide belief that compliance with employment
requirement violates his religion), or sex discrimination, see James v.
Frank,
    973 F.2d 673
    , 676 (8th Cir. 1992) (prima facie case of sex
discrimination requires proof that plaintiff is similarly situated in all
relevant respects to members of opposite gender).
Finally, the district court did not abuse its discretion in quashing
witness subpoenas which were not accompanied by the witness fee.      See CF
& I Steel Corp. v. Mitsui & Co.,
    713 F.2d 494
    , 496 (9th Cir. 1983) (plain
meaning of Fed. R. Civ. P. 45(c) requires tender of fees with service of
subpoena).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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