                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1626


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Plaintiff - Appellant,

           v.

THOMPSON   CONTRACTING,    GRADING,   PAVING,   AND    UTILITIES,
INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-cv-00675-BO)


Argued:   March 26, 2009                    Decided:    June 25, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.


Vacated and remanded by unpublished opinion. Senior Judge Siler
wrote the opinion, in which Judge Niemeyer and Judge Michael
joined.


ARGUED: Susan Ruth Oxford, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.      Michael Coghlan
Lord, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee.
ON BRIEF: Ronald S. Cooper, General Counsel, Lorraine C. Davis,
Acting   Associate   General   Counsel,  U.S.   EQUAL   EMPLOYMENT
OPPORTUNITY   COMMISSION,    Washington,  D.C.,   for   Appellant.
Kimberly D. Bartman, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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SILER, Senior Circuit Judge:

       The Equal Employment Opportunity Commission (EEOC) appeals

from    the     district      court’s     order       granting      summary     judgment

against    it     for    failing    to    establish          evidence     of   religious

discrimination      by       Thompson    Contracting,         Grading,     Paving,    and

Utilities, Incorporated (Thompson) under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1), when

Thompson terminated the employment of Banayah Yisrael (formerly

Garry Parker).

       We find that the EEOC proffered sufficient evidence of a

prima     facie    case      of   religious         discrimination        by   Thompson.

However, we decline to address the issue of whether Thompson met

the accommodation aspect of the claim because the district court

did not address this issue.              Accordingly, we vacate the judgment

and remand to the district court for proceedings consistent with

this opinion.



                                              I

       Yisrael     is    a    Hebrew     Israelite          who   began    working    for

Thompson in June 2004 as a dump truck driver.                             As a Hebrew

Israelite, Yisrael’s religious beliefs require him to observe

the    Sabbath    and     refrain      from       working    on   Saturdays.         As   a

contractor that works outdoors, Thompson sometimes requires its

employees to work on Saturdays when weather prevents work during

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the normal Monday through Friday work week.                              Thompson’s employee

handbook informs its employees of the requirement to work on

Saturdays and requires that each applicant disclose any days

that he or she is unavailable to work before they are employed.

When hired, Yisrael informed Thompson that he could not work on

Saturdays because of his religious beliefs.

       Early in his employment with Thompson in September 2004,

Yisrael       tested    positive        for      marijuana          and    was   terminated.

Yisrael       reapplied        for      employment           at     Thompson.       Thompson’s

Director of Operations, Jim Stafford, agreed to hire Yisrael

again, but told Yisrael that he would be under close scrutiny

and be required to undergo random drug testing.

       After he was rehired in November 2004, Yisrael was asked to

work   on     Saturday,      December       3,       2004,    but    declined       to    do    so.

Yisrael alleged that he told a manager at Thompson that he could

not    work      because     of   his    religious           beliefs.      Yisrael       was    not

disciplined for his absence.                  On Thursday, December 9, 2004, he

failed      to   show   up     for   work     again.           Yisrael      claims       that    he

informed his supervisor, Mike Lowe, of his absence one day in

advance.          For   this      absence,       Stafford         gave    Yisrael    a    verbal

warning.

       On Friday, December 16, 2004, a manager asked Yisrael to

work on Saturday, December 17, 2004.                           Yisrael alleges that he

told a manager that his religion did not allow him to work on

                                                 4
Saturdays.       Consequently, Yisrael did not show up for work that

Saturday,       which   was   his    second      Saturday      absence.          For    this

absence    Yisrael      was   suspended         for   three       days    and    issued   a

written    warning      stating     that    he    failed     to    show    or    call    and

inform Thompson of his absence for the second week in a row.

The written warning also stated that the next infraction would

result in termination.

      For at least one of the December Saturday absences, Lowe

admits that Yisrael informed him in advance that he could not

work and Lowe simply replaced him with another truck driver.

After     his    second   Saturday     absence          in   December,         Lowe    asked

Yisrael to provide a letter from his spiritual leader verifying

his   religious      belief    that    he       could    not      work    on    Saturdays.

Yisrael obtained the letter and gave it to the receptionist at

the main desk.          Stafford received the letter and placed it in

Yisrael’s employee file.

      In January 2005, Yisrael had an accident while driving a

dump truck, which resulted in damage to the tailgate of the

truck.     Yisrael was issued a written warning for unsafe dumping

of concrete.

      On Friday, February 11, 2005, Yisrael was asked to work on

Saturday, the next day.             Yisrael again stated that he could not

work on Saturdays because of his religious beliefs and did not

work that Saturday.           On February 15, 2005, Thompson terminated

                                            5
Yisrael’s employment for “unsatisfactory job performance.”               The

employee termination form stated, “Mr. [Yisrael] has not had

regular,    dependable   attendance      as    required   by   our   company

policy.”

      Yisrael filed a charge of discrimination with the EEOC on

February 14, 2005, claiming that he had been denied religious

accommodation and disciplined and discriminated against due to

his religious beliefs.     The EEOC filed suit in the United States

District Court for the Eastern District of North Carolina on

Yisrael’s behalf, claiming that Thompson discriminated against

Yisrael by refusing to accommodate his religious beliefs and

ultimately terminating him because of his religion.             Yisrael did

not join the suit as a party.

      The district court granted Thompson’s motion for summary

judgment.    It held “[t]here is no evidence that the employer,

[Thompson], discriminated against the employee because of his

religion or his religious practice.”            The district court found

the   termination   of   Yisrael   was   entirely    performance     related

based on his previous failed drug test, accident with a company

truck, and random absences from work.



                                    II

      The EEOC presented sufficient evidence of a prima facie

case of religious discrimination.             Both Thompson and the EEOC

                                    6
assert different theories as to why Yisrael’s employment was

terminated.       Thompson claimed that it was because of Yisrael’s

past    employment         troubles      and   unsatisfactory         job     performance

during     his    probationary           period,     while     the     EEOC        presented

evidence       that    Yisrael’s        termination     was    the     result       of   his

failure    to    work      on   Saturdays      in    observance       of    the    Sabbath.

       We review de novo the district court’s grant of summary

judgment to Thompson.              Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006).       In reviewing the evidence, we draw all reasonable

inferences in favor of the nonmoving party, the EEOC, and we do

not    make     credibility        determinations       or     weigh       the    evidence.

Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004).

The essential inquiry in granting summary judgment is “whether

the    evidence       presents      a    sufficient     disagreement          to    require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.”                         Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

       Under     Title      VII,        an   employer    may     not       discharge      or

discriminate against an individual in employment because of the

individual’s religion.              42 U.S.C. § 2000e-2(a)(1).                     Religious

accommodation         in    employment       cases    contain     a    burden-shifting

scheme analogous to that in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).            EEOC v. Firestone, 515 F.3d 307, 312 (4th

Cir. 2008).       A plaintiff must first establish a prima facie case

                                               7
of religious discrimination. Id.              “If the employee establishes a

prima facie case, the burden then shifts to the employer to show

that    it    could    not     [reasonably]    accommodate      the     plaintiff's

religious needs without undue hardship.”                 Id. (quoting Chalmers

v. Tulon Co. Of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996)).

       The   district      court   held   that   the     EEOC   did    not   present

sufficient evidence that Thompson discriminated against Yisrael

based on his religion and granted summary judgment in favor of

Thompson.      For a prima facie case of religious discrimination,

the EEOC must prove that Yisrael: (1) had a bona fide religious

belief that prevented him from working on Saturdays;(2) informed

Thompson of his belief; and (3) was disciplined for failing to

work on Saturdays.             See Firestone, 515 F.3d at 312.               Thompson

does not challenge whether the EEOC met elements one and two of

the prima facie case.           Thompson does, however, challenge element

three, whether Yisrael was disciplined for failing to work on

Saturdays.      It argues Yisrael was fired for reasons other than

failing to work on Saturdays.

       If    there    is   a    genuine   dispute   as    to    why    Yisrael   was

terminated, then summary judgment must be vacated.                     In reviewing

the evidence in the light most favorable to the EEOC, we find

that   there    is    a    genuine   dispute     concerning      the    reason   for

Yisrael’s termination.



                                          8
        Thompson argues that Yisrael was terminated because he was

on a second probationary period after he was rehired in November

2004,    which     placed   him     under          a    strict      standard     to    perform

satisfactory work, a standard that he did not meet.                                   Thompson

argues    that     Yisrael’s     firing       was       the    result     of   an     array   of

instances, only three of which involved Saturday absences.

        However, the EEOC contends that Yisrael’s Saturday absences

were the crucial factor in Yisrael’s termination.                                Since three

of the four days Yisrael missed were Saturday absences, and the

reason given for Yisrael’s unsatisfactory job performance was

his     attendance       record,        the        EEOC       reasons     that      Yisrael’s

termination was a result of his Saturday absences.

        Further,    at   least     two    of       the       four   disciplinary       actions

Yisrael incurred were related to his Saturday absences.                                Yisrael

was given a written warning and a three-day suspension for his

second Saturday absence, which occurred on December 17, 2004.

Later, Yisrael was terminated directly after his third Saturday

absence on February 12, 2005.                          Thus, the EEOC has presented

sufficient       evidence   for     a    trier          of    fact   to    determine      that

Yisrael was terminated for failing to work on Saturdays.

        Since the resolution of this issue is the deciding factor

in whether the EEOC made out a prima facie case of religious

discrimination, it is undoubtedly material.                          Therefore, the EEOC

has met its burden of presenting a genuine issue of material

                                               9
fact concerning the prima facie case, so we vacate the district

court’s entry of summary judgment.



                                          III

      In its order, the district court held that the EEOC did not

establish a prima facie case of religious discrimination and,

therefore,       did   not    address    the     accommodation        aspect   of   the

religious discrimination claim.                 Under the accommodation aspect

of the claim, summary judgment might still be proper if Thompson

shows     that    it    could     not    reasonably         accommodate    Yisrael’s

religious needs without undue hardship.                    See Firestone, 515 F.3d

at 312.     Although this court may affirm summary judgment on any

legal ground supported by the record, Jackson v. Kimel, 992 F.2d

1318, 1322 (4th Cir. 1993), we decline to address this issue.

On   remand,     the   district        court    may   review    the     evidence    and

determine    whether         summary    judgment      in   favor   of    Thompson    is

proper under an accommodation theory.

                                                              VACATED AND REMANDED




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