UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.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. John-
son 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 liti-
gation arose in April 1994 when K-Mart initiated a new policy to
eliminate "sweetheart schedules," schedules which require no week-
end 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 forc-
ing 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 pay-
ing 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

                    2
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 intolera-
ble 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 intolera-
ble because her religious belief prohibited her from working on Sun-
day, 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 accom-
modate 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

                    3
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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

                    4
