UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL J. SPEEDONE,

Plaintiff-Appellant,

v. No. 98-1465

REVCO DS, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-97-919-S)

Submitted: October 30, 1998

Decided: January 4, 1999

Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Eric Siegel, Guy Zuzovsky, Washington, D.C., for Appellant. Joseph

A. Schwartz, III, Pamela Metz Kasemeyer, SCHWARTZ, BOYD &

METZ, P.A., Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Samuel J. Speedone appeals the district court's order granting summary judgment to his former employer, Revco Drugs, Inc. ("Revco"),

in his Title VII action alleging religious discrimination and retaliation.

Speedone, an Orthodox Jew, alleged that Revco's refusal to transfer

him to a store in Baltimore was improperly based on his religion. The

district court held that Speedone failed to establish a prima facie case

of religious discrimination and that Revco provided a legitimate nondiscriminatory reason for its decision to deny Speedone's requests for

a transfer. We conclude that Revco has provided a legitimate, nondiscriminatory explanation for its denial of Speedone's transfer requests

and that Speedone failed to create a triable dispute over whether that

explanation is pretextual. Accordingly, we affirm.

In December 1992, Revco hired Speedone as one of three pharmacists to work in a store in Hagerstown, Maryland. 1 During the interview process, Speedone informed Revco that he could not work

Friday evenings or Saturdays until sundown due to his religious

beliefs. To accommodate Speedone, Revco scheduled him to work

Sundays through Thursdays.

In June 1995, Speedone requested a transfer to a Baltimore store

to reduce commuting costs. At the time of this request, there were no

three-pharmacist stores in Baltimore with a pharmacist2 vacancy.

Revco contends that Speedone's scheduling requirements could not

be met in a two-pharmacist store without causing undue hardship for

the second pharmacist, who would then be required to work every

weekend. Revco did offer Speedone a transfer to a two-pharmacist

store with the provision that Speedone work Friday evenings and Saturdays; Speedone declined this transfer.

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1 Speedone accepted the position in Hagerstown even though he resided

in Baltimore.

2 Three pharmacists are needed to staff those stores in which the pharmacy is open 120 hours per week.

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When Revco opened a new store in Hagerstown, the pharmacy

sales in Speedone's store decreased. Accordingly, Revco reduced the

pharmacy's hours, and because Speedone was the junior pharmacist

at his store, his schedule was reduced to twenty-six hours per week

instead of forty. However, Revco arranged for Speedone to work at

a store in Baltimore to make up for some of the reduction.3 In September 1995, Speedone requested that he not be scheduled to work on

Tuesdays and Thursdays so he could participate in educating his children at home. Revco agreed to this request.

After allegedly submitting two other requests for a transfer in May

1996, Speedone filed a charge with the Equal Employment Opportunity Commission, in which he alleged that Revco discriminated

against him on the basis of his religion by failing to transfer him to

a Baltimore store.

In December 1996, Revco terminated Speedone's employment

when, after leaving the store, a security check revealed he possessed

several store items he had not purchased. Speedone acknowledged

that the termination of his employment was justified. Subsequent to

the termination of his employment, Speedone filed this complaint

alleging retaliation and religious discrimination in violation of Title

VII.

Title VII prohibits employment discrimination on the basis of

religion.4 Absent direct evidence of discrimination, a plaintiff must

first demonstrate a prima facie case of discrimination.5 Once a party

has made a prima facie case, the employer must provide a legitimate

nondiscriminatory justification for its action. 6 If the employer

advances such a justification, the plaintiff then must prove that this

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3 Speedone was scheduled to work ten hours per week in the Baltimore

store.

4 See 42 U.S.C. § 2000e-2(a) (1994).

5 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir.

1996), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3815 (U.S. Oct. 6, 1997)

(No. 96-1874).

6 See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981); Chalmers, 101 F.3d at 1017-18.

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justification is a mere pretext for an actual discriminatory motive.7

We review a grant of summary judgment de novo.8 Summary judgment is appropriate when there are no genuine issues of material fact

and when the record taken as a whole could not lead a rational trier

of fact to find for the non-moving party.9 All reasonable inferences

are to be drawn in favor of the non-moving party. 10

Speedone challenges the district court's conclusion that he did not

establish a prima facie case of religious discrimination or retaliation.

We agree with the district court that Speedone failed to establish any

adverse employment action taken by Revco that was in any way

related to his religious beliefs. In fact, Revco offered ample evidence

demonstrating their commitment to accommodating Speedone's religious beliefs. It is undisputed that Speedone never worked Friday

evenings, Saturdays before sundown, or any religious holiday during

his employment with Revco. Further, Speedone's contention that his

religion motivated Revco's denial of his requests for a transfer is

nothing more than speculation. Even if Speedone demonstrated a

prima facie case of discrimination based upon religion, Revco

advanced legitimate, nondiscriminatory business reasons for its decision not to transfer Speedone, and Speedone failed to establish this

justification was pretextual.

Accordingly, we affirm the district court's order granting summary

judgment to Revco. 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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7 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993);

Chalmers, 101 F.3d at 1018.

8 See Higgins v. E. I. DuPont de Nemours & Co., 863 F.2d 1162 (4th

Cir. 1988).

9 See Celotex v. Catrett, 477 U.S. 317, 323 (1986).

10 See Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).

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