Opposition Brief — REN Laboratories of Florida, Inc. v. Weiss

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No. 01-317

Supreme Court, U.S.

FILED

SEP 20 2001

CIn Oo) he

OFFICE OF TRE CLERK

Supreme Court of the Cited States ©

KENNETH WEISS,

Petitioner,

REN LABORATORIES OF FLORIDA, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

Steven D. Brown

Counsel of Record

Shannon P. Garbett

WILLIAMS, MULLEN,

CLARK & DOBBINS, P.C.

1021 East Cary Street

Two James Center

Post Office Box 1320

Richmond, Virginia 23218-1320

Telephone: (804) 643-1991

Counsel for Respondent

THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400 @ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com

PARTIES TO THE PROCEEDINGS

In his presentation of the parties to this proceeding,

Kenneth Weiss ("Mr. Weiss") lists REN Laboratories of

Florida, Inc.'s ("REN") parent corporation and states, "[t]here

are no other known parent or subsidiary entities to these

parties." (Weiss Pet. at ii). In lieu of this statement, REN

directs this Court to the Corporate Disclosure Statement

filed by REN in its Petition for Writ of Certiorari, Case No.

01-292, which states, "REN Laboratories of Florida, Inc. is

now known as Gambro Healthcare Laboratory Services, Inc.

Gambro Healthcare, Inc. f/k/a Gambro Healthcare Patient

Services, Inc. f/k/a REN Corporation - USA is the parent

corporation. There is no publicly held company that owns

10% or more of the company's stock." (REN Pet. at iii).

TABLE OF CONTENTS

Page

PORUEMD BUF CREM POM IU MEIN OCAD scscssenentsenssctsssnorsheeesncescussanacinkanass i

TE HAE IIE OD icsseccenssntsenintasihnesincittasbcemdnesaasnanmaminesiiie iv

PRU RURDUER GO BE IE PANU ciecscnsssesesicinesisscauselorsitsilensatnbieniiebitsenansas 1

REASONS WHY THE WRIT SHOULD BE DENIED .........esscssecseeees 3

[. CERTIORARI IS NOT WARRANTED BECAUSE

THIS [IS NOT AN APPROPRIATE CASE FOR

THE COURT TO REVIEW THE STANDARD

FOR TITLE VII RELIGIOUS HARASSMENT .........sscecseseeeus 3

A. The Standard for Title VII Religious

Piarassmnent is Irrebe vant .............sccsccsccsccecesccassecsesecssecseess 2

B. The Issue of Religious Accommodation is Not

cg gh En Re LEN 6

C. Mr. Weiss' Petition Ignores the Alternate

Legitimate, Non-Discriminatory Reasons

REN had for Terminating His Employment................... 9

II. CERTIORARI IS NOT WARRANTED BECAUSE

THE STANDARD FOR GRANTING A NEW

TRIAL IS CLEAR AND WAS PROPERLY

RELIED ON BY THE DISTRICT COURT AND

RS ORG PO Ee CaF csecnienscasietencnntnvennenteqsncennntonnscstonse 10

A. There is Not a Conflict Over the New Trial

Standard in the Eleventh Circuit or Any

Other Circuit in the United States o.oo. 11

B. The Jury Verdict Was Against the Great

Weight of Evidence, Making a New Trial

TABLE OF AUTHORITIES

Page(s)

Cases:

Allied Chemical Corp., v. Daiflon, Inc.,

OP Res Ee tis caciscsseicilasntesccpcitalesssiiesindahatnaiiiabiaiolesciaas 11

Ard v. Southwest Forest Indus.,

POF FBG SEP CG, TOD vices ssniscnsnsninsinssntinisesisannieaaiasi 12

Beasley v. Health Care Service Corp.,

POE Fe TD FC: BIE) csienssncsssccsinstinsnsnsinsinastsnemassilannte 5

Bonner v. City of Prichard,

CGE FB TAD GRO Cie. TIE) a cescssccsnnsncsinsiinnsinasovarannnapnsanibente 11

Brown v. Syntex Laboratories, Inc.,

Fate WD COG, BOG) sccercccsinsassassnientcnsnensnsanainivisinnesaannes 12

Chalmers v. Tulon Co. of Richmond,

101 F.3d 1012 (4% Cir. 1996), cert. denied,

AGE a SP CIPI Pcesihsinihionnlacraginieeiclcceibssectatdie se a ane passim

City of Springfield, Mass. v. Kibbe,

480 U.S. 257, 259 (1987), reh’g denied,

EG A Bee Ue Picncesssl ltrcscccemissinsiaisiinacibiseiilinesiabiaunetiaiin 7

Combs v. Plantation Patterns,

106 F.3d 1519 (11% Cir. 1997), cert. denied,

922 US. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998) ......ss..000.. 9

EEOC

Dec. No. 72-1114, 4 F.E.P. 842 (1972) ......csccsscssscescossceccessnseseeee 8

Globe Liquor Co. v. San Roman,

332 U.S. 571 (1948), reh'g denied,

SED US. Ga CG cccrsteesanantenccnctsannsncsictnissisnnssiciatiiitianiaiicaiai

Greenleaf v. Garlock, Inc.,

SAG F.Be SES GB Cie, Baap acecsrernesninsescnensenecetneniasentieniccaninvinaiinn

Harris v. Quinones,

he Ty he RR ee

Hernandez-Torres v. Intercontinental Trading, Inc.,

158 F.3d 43 (15 Cir. 1998) ..ccccccccsssssscssssesessessseeceessnssnsesseeeee

Kearns v. Keystone Shipping Company,

SED FG B77 CG, TE wiensseenstinsssiinnceniersmnieianttisibaaaiane

Montgomery Ward & Co. v. Duncan,

SET WG. BED CABO cccesececscensesccnsececsersnneenenennaniovssnnsinetnnnsassianiiaats

National Car Rental System, Inc. v. Better Monkey Grip Co.,

511 F.2d 724 (5 Cir. 1975), cert. denied,

GHD TIE. 906 COUT. ceisssnscsiatseinistiiaiiepcieiacemmanns 11-12

Nelson v. Adams USA, Inc.,

SIP 5S. 600 CUTIE vesicle

Ryan v. McDonough Power Equipment, Inc.,

TOO FBG SES OO Cae, Fa cccecstcncsntiiiesncesinnsesntansaiiiiiintiaianen

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993)...

Turner v. United States,

229 F.2d 944 (6 Cir. 1956), cert. denied,

Sk EB. SES CRG ccccsntsrstanssacineisieissisniinatinsddbandbamnaganiinens

U.S. for the Use and Benefit of Weyerhaeuser Company v. Bucon

Construction Company, Inc.,

Se a rr, GFR seceteiicnntinnsisetcstagriiaicaadiansasatiaiatiines 12

Venters v. City of Delphi,

i | EL 5, 6

Statute:

GE UA G ION cxcscrssesrsesiccscinesieiassnencinaiesetiaiteanaiaiaataaaa 3

Other:

David J. Stephenson, Jr., Annotation, What Constitutes

Religious Harassment in Employment in Violation of Title VII .

Civil Rights Act of 1964, 149 A.L.R. Fed. 405 ere bstictlianeiseninepnanteanieics 6

Michael Wolf, Bruce Friedman, and Daniel Sutherland,

RELIGION IN THE WORKPLACE, A COMPREHENSIVE GUIDE TO

LEGAL RIGHTS AND RESPONSIBILITIES 62, American Bar

STATEMENT OF THE CASE

Instead of setting out again the material facts to the

questions presented by this Petition, REN directs this Court

to the undisputed facts cited by both the district court and

the Eleventh Circuit in this case. (Weiss Pet. at A5-A8 and

C23-25).1 However, in several significant areas REN

supplements the statement of facts set forth by Mr. Weiss in

his Petition as follows:

Mr. Weiss stresses in several places the importance

of the "investigation" undertaken by Dr. Brian Walters ("Dr.

Walters"), REN’s Medical Director of Microbiology and

Immunology, and his "finding" that there was no substance

to the allegations of religious harassment by Mr. Weiss.

However, Dr. Walters was not officially charged with

investigating the complaint. Once the investigation was

conducted by another manager, Dr. Walters was asked to

talk to Mr. Weiss about unwanted religious discussions with

other REN employees. Moreover, Mr. Weiss specifically

admitted that he was orally counseled by Dr. Walters

regarding unwelcome religious discussions with coworkers

and supervisors in the workplace. Mr. Weiss admitted that

Dr. Walters told him that “sex, religion and politics are best

kept out of the workplace.” (R 9/215/247-248).2 Accordingly,

the important fact regarding Dr. Walters’ involvement is that

it resulted in a warning to Mr. Weiss about holding unwanted

religious conversations in the workplace.

Mr. Weiss also specifically failed to refer to the

testimony of Evelyn Roby, a supervisor during Mr. Weiss'

employment at REN. She testified that REN allowed

consensual religious conversations in the workplace, and that

she had had several of these conversations with Mr. Weiss.

Ms. Roby also testified that she witnessed Mr. Weiss initiate

'REN reserves the right to submit a more detailed fact section,

should this Court grant certiorari on the issues presented by Mr. Weiss.

2"R" refers to the record filed with the Eleventh Circuit Court of

Appeals.

Gre ste Ey ce er een eo er ne ee

unwelcomed and harassing religious discussions with two of

his subordinates. (Weiss Pet. at C8). These material facts were

undisputed by Mr. Weiss.

Additionally, there are several instances where Mr.

Weiss makes "inferences" about the facts. However, these

inferences go beyond reasonable factual interpretation and

cross Over into argument. Specifically, Mr. Weiss infers that

Javed Quershi was "hyper-sensitive" to the discussion of any

religion other than his own. (Weiss Pet. at 11). Yet, Mr. Weiss

also states that Mr. Quershi simply rejected Mr. Weiss' offer of

a Bible saying, "No thank you." (Weiss Pet. at 11). A "hyper-

sensitive" Moslem would have a stronger reaction when

offered a Christian Bible. Mr. Weiss’ factual "inference" here is

misleading. In addition, Mr. Weiss infers, without any

support, that Mary Piccola, the member of REN management

who made the decision to terminate him, "did not like his

religion." (Weiss Pet. at 13).5 However, this is not a factual

statement, rather an argument that REN's reasons for

terminating Mr. Weiss were a pretext for discrimination. By

placing this inference in his recitation of facts, Mr. Weiss

substantially misleads the Court. Moreover, there is no proof

of pretext in this case.

Finally, it is important to note that there will always

be subtle differences in the parties' versions of events, i.e.,

the conversation Mr. Weiss had with Claudette Cannatella

the day before his termination, and the incident on July 21,

1993 where Mr. Weiss violently struck his hand on Mary

Piccola's desk during a meeting. However, the evidence

regarding the effect of these events on REN (and REN's belief

about these events) was never disputed. Specifically, there

is no material evidence that REN did not honestly believe

that Mr. Weiss was a poor performer, had been

insubordinate and was religiously harassing its employees.

(Weiss Pet. at C25).

3In fact, Mary Piccola herself is a Christian.

REASONS WHY THE WRIT SHOULD BE DENIED

I. CERTIORARI IS NOT WARRANTED BECAUSE

THIS IS NOT AN APPROPRIATE CASE FOR THE

COURT TO REVIEW THE STANDARD FOR

TITLE VII RELIGIOUS HARASSMENT.

In his Petition for Writ of Certiorari, Mr. Weiss asks

this Court to address whether voluntary prayer and

proselytization among co-workers in a private corporation

constitutes religious harassment in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title

VII"). (Weiss Pet. at i). In doing so, Mr. Weiss petitions this

Court to clarify the standard for Title VII religious

harassment. (Weiss Pet. at 18). However, it is wholly

unclear why Mr. Weiss believes that the Title VII religious

harassment standard is relevant in this case. Mr. Weiss’

only claim at trial was that REN terminated his empioyment

on July 23, 1993 "solely due to his religious beliefs," in

violation of Title VII. (Weiss Pet. at C1). Accordingly, this

case proceeded as a religious disparate treatment case

through discovery and trial. However, it appears at this late

juncture, that Mr. Weiss is attempting to interject the issue

of Title VII religious harassment into this case, perhaps in an

effort to divert the Court's attention from the relevant issues

presented by REN in its own Petition for Writ of Certiorari,

Case No. 01-292, docketed on August 17, 2001. For the

following reasons, Mr. Weiss' arguments that the standard

for Title VII religious harassment should be reviewed by

this Court are not persuasive.

A. The Standard for Title VII Religious

Harassment is Irrelevant.

In his Petition, Mr. Weiss seems to be arguing for the

first time that REN was required to show that his actions

constituted Title VII religious harassment in order to rise to

a legitimate, nondiscriminatory reason for terminating him.

In support, Mr. Weiss states that the Fourth, Seventh and

Eleventh Circuit Courts of Appeal are in conflict regarding

the standard for Title VII religious harassment, and, thus,

this Court should clarify it. Mr. Weiss also seems to be

arguing that whatever the standard is, REN clearly did not

show that Mr. Weiss' actions at work were Title VII religious

harassment. Mr. Weiss' arguments are misplaced.

First, it was never REN's burden to show that Mr.

Weiss' actions constituted Title VII religious harassment in

order to claim his actions were a_ legitimate,

nondiscriminatory reason for terminating him. See St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993) (under the

burden-shifting analysis, the plaintiff must first establish a

prima facie case of discrimination, and if he is successful in

doing so, then the burden shifts to the employer to produce

evidence demonstrating that it had a _ legitimate

nondiscriminatory reason for the adverse employment

action). In.fact, REN never argued that Mr. Weiss' conduct

rose to the level of Title VII religious harassment, because it

was not required to do so. Rather, REN argued that it could

terminate Mr. Weiss for religiously harassing its employees

in violation of its anti-harassment policy. (Weiss Pet. at C17-

C19). Neither the district court nor the Eleventh Circuit

questioned whether REN could present this defense, and it

was never questioned by Mr. Weiss until now. See Chalmers

v. Tulon Co. of Richmond, 101 F.3d 1012, 1019-1020 (4 Cir.

1996, cert. denied, 522 US. 815 (1997) (upholding

termination of Evangelical Christian for sending personal,

distressing letters to coworkers’ homes, criticizing them for

ungodly and shameful conduct).

This case is a disparate treatment case. However,

Mr. Weiss' Petition claims for the first time that one of REN's

reasons for terminating him (religious harassment of REN

employees) is now somehow discrimination against him

because the reason is based on his practice of his religion.

Mr. Weiss argues that this decision will chill innocuous

religious speech and conduct in the workplace, as

employers will perceive themselves to be at risk for

allowing employees to discuss religion or offer others

religious materials during work time. (Weiss Pet. at 21-22).

However, the facts of this case fit into a subset of situations

where harassment might not rise to the level of Title VII

religious harassment, but may also be a non-discriminatory

reason for termination. The courts have developed “basic

parameters of conduct and have upheld employers that

suppress proselytizing activities that become harassing."

See Michael Wolf, Bruce Friedman, and Daniel Sutherland,

RELIGION IN THE WORKPLACE, A COMPREHENSIVE GUIDE TO

LEGAL RIGHTS AND RESPONSIBILITIES 62, American Bar

Association, 1998. A careful employer can avoid a charge

that it is discriminating against a proselytizing employee "if

it has fully investigated the facts surrounding the

proselytizing and has a sound factual basis for concluding

that the employee has either disrupted work or has harassed

coworkers." Id. Both the Eleventh Circuit and the district

court pointed out that it was the continuous nature and

frequency of Mr. Weiss' unwanted religious actions, in the

face of warnings from his supervisors, along with the fact

that Mr. Weiss was a supervisor, that made his conduct

unacceptable, against REN policy and a legitimate reason

for termination. (Weiss Pet. at A5-A8).

Second, even if the standard for Title VII religious

harassment is relevant to this case, there is no conflict in the

standard presented by the cases cited by Mr. Weiss in his

Petition. See Hernandez-Torres v. Intercontinental Trading,

Inc., 158 F.3d 43, 48 (1st Cir. 1998) (jury instruction applied

sexual harassment principles to religious harassment claim);

Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4 Cir.

1996) (plaintiff's claim based on religious accommodation,

not religious harassment, so no definition of religious

harassment given); Venters v. City of Delphi, 123 F.3d 956,

975 (7th Cir. 1997) (applies sexual harassment principles to

Title VII religious harassment claim); Beasley v. Health Care

Service Corp., 940 F.2d 1085, 1089 (7 Cir. 1991) (court did not

need to address religious harassment claim because of

finding that discharge was for good cause); David J.

Stephenson, Jr., Annotation, What Constitutes Religious

Harassment in Employment in Violation of Title VII of Civil

Rights Act of 1964, 149 A.L.R. Fed. 405 (1998) (does not

address a conflict in the circuit courts).4 In fact, federal cases

that discuss religious harassment consistently view religious

harassment the same as race or gender harassment. See

Venters v. City of Delphi, 123 F.3d 956, 975 (7 Cir. 1997) (the

federal courts have been applying the same _ hostile

environment principles to harassment based on race,

religion, national origin and sex since 1971).

B. The Issue of Religious Accommodation is

Not Presented By this Case.

In addition, to the extent Mr. Weiss is also arguing

that REN is at fault for not accommodating Mr. Weiss'

religious practices, this argument must fail, because the

issue is not adequately presented by this case. (Weiss Pet. at

20-21). First, Mr. Weiss specifically did not properly

preserve the religious accommodation issue for appeal. Mr.

Weiss did not plead failure to accommodate in his initial

Complaint, and the parties conducted no discovery on this

issue. In addition, REN, believing that Mr. Weiss might

attempt to insert this issue in this case at a later date,

specifically addressed this issue in its Motion for Summary

Judgment and Motion in Limine before trial. Because of

this, the trial court specifically addressed this issue with Mr.

Weiss' counsel during the trial. Mr. Weiss’ trial counsel

4In Footnote 3, Mr. Weiss states that most of the circuit court

cases cited in his Petition present the religious harassment issue in the

same regard as the instant case, i.e., "where an employer contends that it

took action against the plaintiff religious employee for religious speech or

conduct it considered harassing." (Weiss Pet. at 20, fn. 3). However, only

one of the cited cases - Chalmers v. Tulon Co. of Richmond - deals with a

situation where an employer uses the plaintiff's harassing conduct as a

legitimate non-discriminatory reason for terminating the plaintiff.

never stated that this was a religious accommodation case,

even when directly asked by the trial judge, and instead

focused on the disparate treatment aspects of the case. (R

9/215/301). Moreover, at the jury charge conference, Mr.

Weiss' counsel never requested a religious accommodation

instruction. In addition, the issue of whether or not REN

accommodated Mr. Weiss' religious practices was not posed

to the Eleventh Circuit on appeal. Accordingly, because the

religious accommodation issue was not addressed by Mr.

Weiss at trial or on appeal, he did not properly preserve it

for appeal to this Court, and this Court has no jurisdiction to

review the issue. See Nelson v. Adams USA, Inc., 529 U.S. 460,

469 (2000) (it is the general rule that issues must be raised in

lower courts in order to be preserved as potential grounds

of decision in higher courts); City of Springfield, Mass. v.

Kibbe, 480 U.S. 257, 259 (1987), reh’g denied, 481 U.S. 1033

(1987) (ordinarily the Supreme Court will not decide

questions not raised or litigated in the lower courts).

Second, assuming arguendo, that this Court can

consider this case in the religious accommodation

framework, the evidence weighs in favor of REN. Mr. Weiss

admitted at trial that he was aware of REN's anti-

harassment policy and that as a supervisor he was

responsible for assuring compliance with the policy. (Weiss

Pet. at C6-C7). Mr. Weiss also admitted at trial that he never

complained to REN that its policies and procedures

conflicted with his religious beliefs. (Weiss Pet. at C6).

Accordingly, Mr. Weiss gave no notice of his alleged need to

be accommodated. See Chalmers v. Tulon Co. of Richmond, 101

F.3d 1012, 1019 (4% Cir. 1996) (in order to establish a prima

facie religious accommodation claim, a plaintiff must

establish that he or she informed his employer that his bona

fide religious belief conflicts with an employment

requirement). In addition, Mr. Weiss admitted that REN

management told him that he could have consensual, non-

threatening religious discussions with co-workers and

subordinates. (R 9/215/265-266). Finally, the undisputed

evidence of Mr. Weiss' harassing behavior shows that

allowing Mr. Weiss' behavior to continue would present an

undue hardship to REN. (Weiss Pet. at A5-A8). Specifically,

several employees testified at trial that they would have quit

or taken action against REN if the company had not

attempted to stop Mr. Weiss' religious harassment. (Weiss

Pet. at C9-C10).

Accordingly, even if the religious accommodation

issue was properly preserved for appeal, Mr. Weiss’ claim

should fail. Mr. Weiss failed to present a prima facie claim

of religious accommodation because he did not notify REN

of any alleged conflict between his beliefs and company

policy. Alternatively, even if Mr. Weiss did present a prima

facie case, REN adequately accommodated him by allowing

him to have consensual religious discussions with co-

workers. Finally, Mr. Weiss' unwelcome religious

discussions presented an undue hardship on the conduct of

REN's business by putting REN in an impossible situation

vis ‘a vis its employees. See Chalmers v. Tulon Co. of

Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996) (if Tulon had

authorized Ms. Chalmers to write the letters to her co-

workers, the company would subject itself to possible suits

from the co-workers claiming that Ms. Chalmers violated

their religious freedoms, and the company was not required

to accommodate that conduct); EEOC Dec. No. 72-1114, 4

F.E.P. 842 (1972) (EEOC ruled that an employer failed to

maintain a work environment free of religious harassment

triggering a Title VII violation when one of its supervisors

preached about religion at work over the objection of

employees).5

sThroughout this section of his Petition, Mr. Weiss also refers to

the First Amendment's protection of religious exercise as well as religious

belief. However, the First Amendment is not at issue in this case, because

there is no First Amendment. right to religious speech in the private

workplace. Thus, Mr. Weiss' references to the Tucker and Brown cases in

Footnote 4 are irrelevant.

‘. Mr. Weiss' Petition Ignores the Alternate

Legitimate, Non-Discriminatory Reasons

REN had for Terminating His Employment.

Finally, even if this Court believes that the Title VII

religious harassment and/or accommodation standards are

relevant to this case, certiorari is not warranted because

review of those issues will not alter the effect of the Eleventh

Circuit's decision. Mr. Weiss' Petition only focuses on one of

REN's legitimate, non-discriminatory reasons for

terminating him, i.e., his religious harassment of co-workers,

subordinates and supervisors. However, at trial and on

appeal to the Eleventh Circuit, REN argued two other

legitimate, non-discriminatory reasons for terminating Mr.

Weiss, ie. poor performance and insubordination.

Specifically, the district court found that the greater weight

of the evidence supported REN's assertion that it terminated

Mr. Weiss because of religious harassment and

insubordination. (Weiss Pet. at C25). In addition, the

Eleventh Circuit found that the weight of the evidence

supported REN's argument that religious harassment, poor

performance and _ insubordination led to Mr. Weiss’

termination. (Weiss Pet. at A5-A8).°

Mr. Weiss was required to put forth sufficient

evidence to challenge the truth of each of REN's reasons for

its employment action. See Combs v. Plantation Patterns, 106

F.3d 1519, 1529 (11% Cir. 1997), cert. denied, --- U.S. --, 118

S.Ct. 685, 139 L.Ed.2d 632 (1998) (defendant granted

¢Mr. Weiss notes in his Petition that the Eleventh Circuit erred in

basing its decision, in part, on poor performance, because the district

court did not find a legitimate nondiscriminatory reason based on poor

performance. However, this is a distinction without a difference. Mr.

Weiss’ poor performance was addressed at every juncture of this case,

and it was presented in REN's brief to the Eleventh Circuit as a legitimate

non-discriminatory reason. In addition, the district court did not address

Mr. Weiss’ poor performance only because it stated it did not have to, as

Mr. Weiss failed to undermine the veracity of REN's other stated reasons

for his termination. (Weiss Pet. at C17-C18, fn. 2).

judgment as a matter of law because plaintiff failed to

produce sufficient evidence to permit reasonable juror to

reject each one of defendant's legitimate, nondiscriminatory

reasons). Because Mr. Weiss does not challenge the

Eleventh Circuit's decision that the evidence regarding Mr.

Weiss' poor performance and insubordination weighs in

favor of REN, his arguments regarding the standard for

Title VII religious harassment, even if decided in his favor,

would not affect the outcome of this case. REN would still

be entitled to a new trial based on the Eleventh Circuit's

unchallenged decision that the great weight of the evidence

supports the fact that Mr. Weiss was terminated for poor

performance and insubordination.

Accordingly, the issues of religious harassment

and/or religious accommodation are not relevant to this

case, and were not properly brought before this Court. In

addition, the cases cited by Mr. Weiss in his Petition do not

present a conflict regarding the standard for Title VII

religious harassment. Finally, the fact that REN presented

two other legitimate, nondiscriminatory reasons for

terminating Mr. Weiss, assures that the outcome of this

Petition would not affect REN's right to a new trial.

Accordingly, certiorari is not warranted.

Il. CERTIORARI IS NOT WARRANTED BECAUSE

THE STANDARD FOR GRANTING A NEW

TRIAL IS CLEAR AND WAS PROPERLY RELIED

ON BY THE DISTRICT COURT AND THE

ELEVENTH CIRCUIT.

Mr. Weiss' claim that this Court should grant

certiorari to "bring clarity to the notoriously unsettled

standard for granting a new trial" is unfounded. (Weiss Pet.

at 23-24). The District Court applied the correct standard

when it conditionally granted REN's Motion for New Trial.

Moreover, the Eleventh Circuit Court of Appeals applied

the proper standard in affirming the District Court's

conditional order granting a new trial. The opinions of both

the District Court and the Eleventh Circuit more than

adequately set forth the appropriate standard for granting a

new trial. REN will not squander this Court's time with a

full recitation of all vf the relevant cases from the two

opinions. However, there are several flaws in Mr. Weiss'

argument that merit some discussion.

A. There is Not a Conflict Over the New Trial

Standard in the Eleventh Circuit or Any

Other Circuit in the United States.

This Court has ruled that the determination of a

motion for new trial rests in the discretion of the trial judge.

See e.g. Globe Liquor Co. v. San Roman, 332 US. 571, 574

(1948), reh'g denied, 333 U.S. 830 (1948)("Determination of

whether a new trial should be granted or a 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."); Montgomery Ward & Co. v. Duncan, 311 USS.

243, 251 (1940) (the district court has the discretion to weigh

the evidence when considering a motion for new trial);

Allied Chemical Corp., v. Daiflon, Inc., 449 U.S. 33, 36-37 (1980)

("The authority to grant a new trial, moreover, is confided

almost entirely to the exercise of discretion on the part of the

trial court.").

Although Mr. Weiss tries to claim there is a conflict

in the Eleventh Circuit Court of Appeals and other Circuits,

the case law does not support the argument. The Eleventh

Circuit has clearly made the distinction between the

standard for granting judgment as a matter of law and a

motion for new trial. See National Car Rental System, Inc. v.

Better Monkey Grip Co., 511 F.2d 724, 730-731 (5 Cir. 1975)’,

7All decisions from the Fifth Circuit handed down prior to

September 30, 1981 were adopted as binding precedent by the Eleventh

Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11' Cir. 1981) (en

banc).

cert. denied, 423 U.S. 894 (1975) (when a district court is

considering a motion for directed verdict, it decides a pure

question of law without exercising discretion; however,

when the trial court determines the propriety of a motion for

new trial, the court "may and should exercise a sound

discretion, and its ruling thereon will not be reviewed in an

appellate court in the absence of a clear abuse of

discretion."); U.S. for the Use and Benefit of Weyerhaeuser

Company v. Bucon Construction Company, Inc., 430 F.2d 420,

423-424 (5% Cir. 1970) (same); Ard v. Southwest Forest Indus.,

849 F.2d 517, 521 (11% Cir. 1988) (a district court may weigh

the evidence to determine if the verdict is against the great

weight of evidence; a new trial may be appropriate even if

there is some evidence that supports the jury verdict).

Other circuits that have addressed the standard for

granting a new trial have employed the same analysis as the

Eleventh Circuit. See e.g. Kearns v. Keystone Shipping

Company, 863 F.2d 177, 181 (1% Cir. 1988) (the district court

has the discretion to order a new trial when it determines

that the verdict is against the great weight of evidence;

"[o]Jnly with appropriate caution and to prevent a

miscarriage of justice should a trial court set aside a jury

verdict, and only on a finding of an abuse of discretion

should a reviewing court set aside the trial court's

determination."); Greenleaf v. Garlock, Inc., 174 F.3d 352, 365-

366 (3 Cir. 1999) (same); Turner v. United States, 229 F.2d

944, 945 (6% Cir. 1956), cert. denied, 351 U.S. 970 (1956)

(same); Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 673-

674 (8% Cir. 1985) citing Ryan v. McDonough Power Equipment,

Inc., 734 F.2d 385, 387 (8th Cir.1984)(In determining if a

verdict is against the weight of the evidence, the trial court

may conduct its own evaluation of the evidence. It may

“weigh the evidence, disbelieve witnesses, and grant a new —

trial even where there is substantial evidence to sustain the

verdict."); and Harris v. Quinones, 507 F.2d 533, 535 (10 Cir.

1974) (same).

B. The Jury Verdict Was Against the Great

Weight of Evidence, Making a New Trial

Necessary.

In the case at bar, both the district court and the

Eleventh Circuit reviewed the various facts and determined

that the jury's verdict that religion made a difference in Mr.

Weiss’ termination was against the great weight of evidence.

The district court noted that the dispositive issue (religious

discrimination) "was neither simple nor the subject of highly

disputed testimony. The dispositive issue was the complex

one of Defendant's intent-whether Defendant terminated

Plaintiff because it intended to discriminate against him on

the basis of his religion or because it honestly believed he

had been insubordinate and religiously harassing

employees." (Weiss Pet. at C25). Moreover, both the district

court and the Eleventh Circuit relied upon undisputed facts

from the trial to support the decision that the jury verdict

was against the great weight of evidence. The undisputed

facts that support the district court and Eleventh Circuit's

opinions will not be repeated here. It was clear to the trial

judge that the jury verdict was against the great weight of

evidence, making a new trial necessary to avoid a

miscarriage of justice.

Mr. Weiss’ primary area of attack on the district

court and the Eleventh Circuit's opinions regarding a new

trial is to claim that the undisputed facts are somehow now

in dispute. This is the first time that Mr. Weiss has raised

this issue and it is not persuasive. Throughout the trial, the

post-trial motions and briefs and the briefs to the Eleventh

Circuit, Mr. Weiss has not refuted the undisputed facts. Mr.

Weiss admitted at trial that he was insubordinate to his

supervisor, he had performance problems’, and he was

warned several times to stop harassing employees with his

religious beliefs. (Weiss Pet. at C6-C8, C19-C24 and A5-A8).

Mr. Weiss was a poor performing supervisor who

used his position to harass subordinates, co-workers and

supervisors with his religious beliefs. There was no proof

that a reasonable jury could possibly rely upon to find that

Mr. Weiss was the victim of unlawful religious

discrimination. Therefore, a new trial is necessary in this

case.

CONCLUSION

The standard for Title VII religious harassment is

irrelevant to this case. Mr. Weiss' religious harassment of

co-workers, supervisors and subordinates was in violation

of REN policy, and, thus, was a legitimate, non-

discriminatory reason for REN's decision to terminate Mr.

Weiss. In addition, the Eleventh Circuit and the district

court both determined that the great weight of the evidence

in this case lays in favor of REN, and, based on that

evidence, both courts granted a new trial. Specifically, the

Eleventh Circuit concluded that the jury's verdict that

religion made a difference in Mr. Weiss' termination is

contrary to the great weight of the evidence, which "strongly

suggests [Mr. Weiss] was terminated for poor job

performance, insubordination, and religious harassment of

8Mr. Weiss tried to claim that it was improper for the Eleventh

Circuit to consider his performance problems as a basis for a new trial

because the district court did not consider it below. This assertion is

misleading. The district court did not have to reach this issue when

ruling on the Motion for Judgment as a Matter of Law because Mr. Weiss

could not discredit the legitimate, nondiscriminatory reasons of religious

harassment and insubordination. However, in reviewing whether a new

trial was warranted, the district court did list Mr. Weiss' performance

problems as evidence of his workplace behavior. Therefore, it was proper

for the Eleventh Circuit to consider Mr. Weiss' work performance

problems in its analysis of a new trial. (Weiss Pet. at C17-C18, fn. 2; C23-

C24; A5-A6).

co-workers, as alleged by [REN]." (REN Pet. at App. 7). For

the reasons stated herein, this case presents no fundamental

questions of law or any conflict among the United States

federal courts of appeals. Accordingly, Mr. Weiss’ Petition

for Writ of Certiorari should be denied.

Respectfully submitted,