UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAULA EDNA JOHNSON,

Plaintiff-Appellant,

v.

No. 96-2408

K-MART CORPORATION; HAL LEWIS;

MARK KUHLMAN,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge.

(CA-95-75-H)

Submitted: October 31, 1997

Decided: December 2, 1997

Before HALL, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas D. Logie, Front Royal, Virginia, for Appellant. R. Craig

Wood, H. Dill Battle, III, MCGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P., Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Paula Edna Johnson brought suit against K-Mart and two of its

employees alleging that the Defendants discriminated against her in

violation of Title VII, 42 U.S.C. § 2000e-2000e-17 (1994), based

upon her religious beliefs and practices. The district court granted

summary judgment to the Defendants and dismissed the action. Johnson appeals, alleging that the district court erred when it found as a

matter of law that she was not constructively discharged. Finding no

error, we affirm.

Johnson was a personnel and training manager at K-Mart. This litigation arose in April 1994 when K-Mart initiated a new policy to

eliminate "sweetheart schedules," schedules which require no weekend working hours, in its stores. The new policy required Johnson to

work one Sunday per month. Because working on Sunday interfered

with her religious beliefs, Johnson resigned from her position on

November 5, 1994. During her exit interview, Johnson told her

employers that K-Mart's implementation of the new policy was forcing her to choose between attending church on Sunday and her

employment with K-Mart.

Defendants Lewis and Kuhlman, two K-Mart managers, offered

Johnson an accommodation: she could work either before or after

church on the one Sunday a month that she would be scheduled to

work. Johnson refused the offer and instead proposed that they give

her a job in the pharmacy which was closed on Sundays thereby

negating the scheduling problem. K-Mart declined her offer because

of the cost it would incur to train Johnson for the position and in paying Johnson full-time wages and benefits when it desired to fill the

position with two part-time employees.

To establish a prima facie religious accommodation claim under

Title VII, the plaintiff must: (1) have a bona fide religious belief

which conflicts with an employment requirement; (2) inform the

employer of the belief; and (3) be disciplined for failing to comply

with the conflicting requirement. See Chalmers v. Tulon Co. of

Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996), cert. denied, 65

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U.S.L.W. 3815 (U.S. Oct. 6, 1997) (No. 96-1874). If the plaintiff

presents a prima facie case, the burden shifts to the defendant to show

that it was unable to reasonably accommodate the plaintiff's religious

needs without undue hardship. Id.

Johnson conceded that the only adverse action taken against her

relates to her resignation from K-Mart. She does not claim that the

Defendants actually fired her; she alleges that she was constructively

discharged. An employee is entitled to relief under Title VII if an

employer "deliberately" makes the "working conditions" of the

employee "intolerable" in an effort to induce the employee to quit.

See Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.

1995). In order to establish such a claim of constructive discharge, the

plaintiff must prove deliberateness of the employer's actions and

intolerability of the working conditions. Id. at 1354. The plaintiff

must also prove that the actions complained of were intended by the

employer as an effort to force the employee to quit. Id. Intent may be

shown by evidence that an employee's resignation was the reasonably

foreseeable consequence of the employer's conduct and may be

inferred from the employer's failure to act when he knows of intolerable conditions. See Amirmokri v. Baltimore Gas and Elec. Co., 60

F.3d 1126, 1132-33 (4th Cir. 1995).

Even assuming that working conditions for Johnson were intolerable because her religious belief prohibited her from working on Sunday, Johnson cannot show that K-Mart deliberately adopted the

requirement that she work one Sunday per month to induce her to quit

her job. By Johnson's account, all employees were subject to the

same requirement. In addition, the Defendants attempted to accommodate Johnson's religious belief by offering her an opportunity to

attend services on Sunday before or after she worked. While we

refrain from ruling upon whether this is a reasonable accommodation

under Title VII, it is evidence that the Defendants attempted to keep

Johnson employed. Johnson has not produced any evidence from

which a reasonable factfinder could infer that the Defendants enacted

the scheduling policy intending that it would force Johnson to quit.

Because Johnson cannot prove constructive discharge and therefore

cannot establish a prima facie case of religious discrimination, we

find that the district court did not err in granting summary judgment

to the Defendants. Because Johnson cannot establish a prima facie

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case, it is unnecessary to decide if K-Mart reasonably accommodated

Johnson's Sabbatarian belief.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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