          RECOMMENDED FOR FULL-TEXT PUBLICATION
               Pursuant to Sixth Circuit Rule 206                           2    Goldmeier, et al. v. Allstate Ins. Co.       No. 01-3888
     ELECTRONIC CITATION: 2003 FED App. 0246P (6th Cir.)
                  File Name: 03a0246p.06                                                        _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                            ARGUED: Tony C. Merry, PALMER, VOLKEMA &
                   FOR THE SIXTH CIRCUIT                                    THOMAS, Columbus, Ohio, for Appellants. Jon L.
                     _________________                                      Fleischaker, DINSMORE & SHOHL, Louisville, Kentucky,
                                                                            for Appellee. ON BRIEF: Tony C. Merry, PALMER,
                                                                            VOLKEMA & THOMAS, Columbus, Ohio, for Appellants.
 DAVID A. GOLDMEIER and        X                                            Jon L. Fleischaker, DINSMORE & SHOHL, Louisville,
 TERRY C. GOLDMEIER,            -                                           Kentucky, Jerome C. Tinianow, Columbus, Ohio, for
                                                                            Appellee.
        Plaintiffs-Appellants, -
                                -              No. 01-3888
                                -                                                               _________________
           v.                   -
                                -                                                                   OPINION
                                 >                                                              _________________
 ALLSTATE INSURANCE             ,
 COMPANY ,                      -                                             BOGGS, Circuit Judge. Plaintiffs Terry C. and David A.
          Defendant-Appellee. -                                             Goldmeier (the “Goldmeiers”) appeal the district court’s grant
                               N                                            of summary judgment to defendant Allstate Insurance
                                                                            Company (“Allstate”), their former employer, in their action
       Appeal from the United States District Court                         for religious discrimination, in violation of both federal and
      for the Southern District of Ohio at Columbus.                        Ohio state law. The Goldmeiers, husband and wife, are
  No. 99-01091—Norah McCann King, Magistrate Judge.                         Sabbath-observant Orthodox Jews. They had resigned their
                                                                            positions as insurance agents with Allstate after the company
                     Argued: March 25, 2003                                 announced plans to require offices to remain open on Friday
                                                                            evenings and Saturday mornings. Because they had not
               Decided and Filed: July 24, 2003                             suffered discipline or discharge over this conflict, but instead
                                                                            resigned prior to the effectiveness of the new policy, the
 Before: BOGGS and SILER, Circuit Judges; and STEEH,                        United States District Court for the Southern District of Ohio
                   District Judge.*                                         dismissed their complaints for failure to make a prima facie
                                                                            case. We affirm.
                                                                                                           I
                                                                              The Goldmeiers began working as Allstate insurance agents
                                                                            in the late eighties. They ran an Allstate office first in
    *
     The Honorab le George C. Steeh, United States District Judge for the   Bexley, Ohio, and later in Lewis Center, Ohio. While the
Eastern District of Michigan, sitting by designation.

                                   1
No. 01-3888        Goldmeier, et al. v. Allstate Ins. Co.    3    4    Goldmeier, et al. v. Allstate Ins. Co.     No. 01-3888

Goldmeiers had a great deal of discretion in how they ran         years.    Moreover, the Goldmeiers would have been
their own offices, including allocation of administrative         responsible for the performance of the office even in their
expenditures, it is undisputed that they were not independent     absence and they “did not want to trust [their] financial
contractors, but employees of Allstate. The Goldmeiers are        security to a vendor possibly finding someone to work while
also Sabbath-observant Orthodox Jews and as such followed         [they] weren’t there.” Hence the Goldmeiers did not
a religious prohibition against working from sundown Friday       investigate this option further.
until sundown Saturday. Until 1998, they accommodated
their religious and work requirements by closing their office       On November 16, 1998, the Goldmeiers informed Allstate
earlier on Fridays in the winter months when the sun set          that they considered themselves to be constructively
before regular closing hours and always keeping it closed on      discharged and resigned their positions. As the Goldmeiers
Saturdays and Jewish holidays. In September 1998, Allstate        conceded at oral argument, this resignation came as a surprise
announced new Service Availability Standards (“SAS”). The         to Allstate. In response, Allstate now offered to allow the
SAS required that, beginning on January 1, 1999, all offices      Goldmeiers to observe the Sabbath but to work on Sundays
had to remain open until 6 PM on Fridays and, beginning on        instead, an offer the Goldmeiers had earlier made, but which
July 1, 1999, from 9 AM to 1 PM on Saturdays. While an            had then been rejected by Allstate. The Goldmeiers now
open office did not explicitly require the Goldmeiers’            rejected this compromise because Allstate did not make the
presence, it did require the presence of a licensed insurance     offer in writing and the Goldmeiers had, even before
agent at all times and the Goldmeiers were the only such          tendering their resignations, accepted new positions with
agents in their office. Allstate employees were advised that      another employer. On January 1, 1999, the new Allstate
failure to comply with the new policy could lead to discipline,   policy went into effect. The first Friday after the SAS went
up to and including discharge.                                    into effect that also was a regular working day was January 8,
                                                                  1999, fifty-three days after the Goldmeiers resigned.
  In response, the Goldmeiers informed Allstate that the new
policy conflicted with the demands of their religion and             On October 20, 1999, the Goldmeiers filed a complaint
initiated discussions in order to find an accommodation.          against Allstate in federal district court. They alleged
Initially, Allstate indicated that there would be no exceptions   employment discrimination on religious grounds, in violation
to the office hours policy. Allstate suggested that the           of 42 U.S.C. § 2000e, a parallel state law claim, under Ohio
Goldmeiers could hire a licensed insurance agent to cover the     Rev. Code § 4112, and discharge contrary to the public policy
hours they would not be present. Such part-time help had to       embodied in § 4112. On July 13, 2001, the district court
be provided by an Allstate-approved list of “vendors,” but        granted summary judgment to Allstate on the grounds that the
could be funded out of the office expense allowance that the      Goldmeiers had not suffered an adverse employment action
company allocated to each office. When the Goldmeiers’            and therefore failed to make out a prima facie case of
children were young, they had used these funds to hire outside    religious discrimination. The district court also denied the
office assistance. Nevertheless, at this time outside help was    state law claim of discharge contrary to public policy because
not acceptable to the Goldmeiers for multiple reasons. They       it concluded the Goldmeiers had not been discharged. Before
contended that the office expense allowance would be              this court now is the Goldmeiers’ timely appeal of the grant
insufficient to pay for an additional agent and that they would   of summary judgment.
be required to cover any deficit in the allowance out of their
personal funds, as they had been required to do in previous
No. 01-3888        Goldmeier, et al. v. Allstate Ins. Co.    5    6        Goldmeier, et al. v. Allstate Ins. Co.              No. 01-3888

                              II                                  out of their office expense allowance, allowing the
                                                                  Goldmeiers to comply with both the SAS and their religious
  “Title VII makes it unlawful for an employer to ‘discharge      requirement. In this regard the factual situation differs from
any individual, or otherwise to discriminate against any          the more common religious discrimination case in which the
individual with respect to his compensation, terms,               employer explicitly requires an employee to work during the
conditions, or privileges of employment, because of such          Sabbath. The employment requirement here only placed an
individual’s religion.’” Cooper v. Oak Rubber Co., 15 F.3d        additional burden on the religious observance, the expenditure
1375, 1378 (6th Cir. 1994) (quoting 42 U.S.C. § 2000e-            of the limited office expense allowance or the Goldmeiers’
2(a)(1), internal alterations omitted); accord Virts v. Consol.   personal funds.
Freightways Corp., 285 F.3d 508, 516 (6th Cir. 2002).
                                                                    Nevertheless, where the conflict between an employee’s
  The employee bears the burden of establishing a prima           religious belief and an employer’s requirement can only be
  facie case, and sustains that burden by showing that he         removed by the employee’s forfeiture or expenditure of a
  holds a sincere religious belief that conflicts with an         substantial benefit available to other employees, we hold that
  employment requirement; that he has informed his                conflict sufficient to establish a prima facie religious
  employer of the conflict; and that he was discharged or         discrimination case exists.1 In Cooper, we ruled on a similar
  disciplined for failing to comply with the conflicting          argument with respect to vacation time:
  requirement.
                                                                      We recognize that use of vacation time legitimately may
Cooper, 15 F.3d at 1378 (citing Smith v. Pyro Mining Co.,             be required to allow an employee to avoid work on
827 F.2d 1081, 1085 (6th Cir. 1987)); accord Virts, 285 F.3d          religious holidays or, in combination with other methods,
at 516. Religious discrimination can arise out of an                  to allow an employee to regularly avoid working on the
employer’s failure to “accommodate those employees who                Sabbath. Under appropriate circumstances, this use of a
refuse to work on particular days of the week because of their        portion of an employee’s vacation entitlement may be
religious beliefs.” Pyro Mining Co., 827 F.2d at 1085.                reasonable. In this case, however, Cooper was faced
                                                                      with the choice of working on the Sabbath or potentially
  In the present case, the parties agree that the Goldmeiers          using all of her accrued vacation to avoid doing so. Getz
sincerely hold a religious belief barring them from work on           v. Pennsylvania, 802 F.2d 72 (3d Cir. 1986); United
the Sabbath and that they had informed their employer of that         States v. City of Albuquerque, 545 F.2d 110, 113-14
belief. Therefore the existence of a prima facie case depends         (10th Cir. 1976). An employer who permits an employee
on two disputed propositions, whether that religious belief           to avoid mandatory Sabbath work only by using accrued
conflicted with the SAS and whether they were discharged or           vacation does not “reasonably accommodate” the
disciplined for failing to comply with the SAS.                       employee’s religious beliefs. Such an employee stands
  Allstate contends that the SAS did not conflict with the
Goldmeiers’ religious beliefs because it did not directly              1
                                                                        This is not to say that every such conflict results in a valid religious
require them to work on the Sabbath. The SAS merely               discrimination claim. Many conflicts of this type will still fail to give rise
required that the office would remain open during Sabbath         to such a claim under the reasonable accommodation part of the test.
hours, but did not prevent them from hiring substitute agents     However, the search for reasonable accomm odation is not part of the
                                                                  prima facie case.
No. 01-3888            Goldmeier, et al. v. Allstate Ins. Co.              7    8     Goldmeier, et al. v. Allstate Ins. Co.       No. 01-3888

  to lose a benefit, vacation time, enjoyed by all other                           The Goldmeiers maintain that they were constructively
  employees who do not share the same religious conflict,                       discharged. “To constitute a constructive discharge, the
  and is thus discriminated against with respect to a                           employer must deliberately create intolerable working
  privilege of employment.                                                      conditions, as perceived by a reasonable person, with the
                                                                                intention of forcing the employee to quit and the employee
Cooper, 15 F.3d at 1379 (internal citation form normalized).2                   must actually quit.” Moore v. KUKA Welding Sys. & Robot
By the same token, the Goldmeiers were faced with a choice                      Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Logan
of violating the Sabbath or hiring outside staff using either                   v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). In the
their own funds or their limited office expense allowance,                      case of constructive discharge, “working conditions would
otherwise available for other business-enhancing purposes to                    have been so difficult or unpleasant that a reasonable person
other agents.3     Such an incompatibility between an                           in the employee’s shoes would have felt compelled to resign.”
employment and a religious requirement is sufficient to create                  Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887
a conflict.                                                                     (6th Cir. 1996) (quoting Held v. Gulf Oil Co., 684 F.2d 427,
                                                                                432 (6th Cir. 1982)).         “In determining whether an
  We have consistently held that a prima facie case of                          environment is one that a reasonable person would find
religious discrimination requires discharge or discipline for                   hostile or abusive and that the plaintiff in fact did perceive to
failure to comply with an employment requirement                                be so, courts look at all of the circumstances.” Hafford v.
conflicting with a religious requirement. See, e.g., Cooper,                    Seidner, 183 F.3d 506, 512 (6th Cir. 1999). Such
15 F.3d at 1378; Pyro Mining Co., 827 F.2d at 1085; Virts,                      circumstances include “the frequency of the discriminatory
285 F.3d at 516-17. In the present case it is undisputed that                   conduct; its severity; whether it is physically threatening or
the Goldmeiers were not actually discharged or disciplined.                     humiliating, or a mere offensive utterance; and whether it
To remedy this defect fatal to their case, the Goldmeiers offer                 unreasonably interferes with an employee’s performance.”
two alternative theories: that they were constructively                         Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); accord Abeita
discharged and that the 1991 Civil Rights Act amendments                        v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.
sub silentio eliminated the discharge requirement.                              1998); Hafford, 183 F.3d at 512. The circumstances are
                                                                                examined from the point of view of a reasonable member of
                                                                                the protected class. See Yates v. Avco Corp., 819 F.2d 630,
    2
      This discussion in Cooper occu rs within the context of the               636-37 & n.2 (6th Cir. 1987) (evaluating whether sexual
reasonable acco mmoda tion analysis.        But that circumstance on ly         harassment constitutes constructive discharge from the point
strengthens our conclusion. If requiring an em ployee to use up all of her      of view of a reasonable member of the gender being
vacation time to avoid working on the Sabbath is not a re asonable
accommodation of a religious conflict, it a fortiori is not a resolution that
                                                                                harassed).
eliminates the very existence of a religious conflict.
                                                                                   Under these standards, Allstate did not expose the
    3
      The parties extensively dispute the cost and availability of such         Goldmeiers to a work environment so hostile and abusive as
support staff and whether the office expense allowance could have been          to compel a reasonable Orthodox Jewish couple to quit, rather
expected to comple tely cover it. However, there appears to be no dispute       than tolerate it for one more day. The Goldmeiers’ physical
that the expense would have been greater than the allowance or would            work environment was their own office, selected, staffed, and
have at least consumed a substantial fraction of the allowance. As the          controlled exclusively by themselves and hence could hardly
Goldme iers would have b een substantively adve rsely affected by this
expenditure in either case, we need not resolve this factual dispute.           have been intolerable to them. Their broader corporate
No. 01-3888        Goldmeier, et al. v. Allstate Ins. Co.    9    10    Goldmeier, et al. v. Allstate Ins. Co.       No. 01-3888

environment consisted of regular contacts with Allstate           the first actual conflict between their religious and
management. Prior to the announcement of the new SAS in           employment requirements. Even in combination, all
1998, the Goldmeiers cite a few instances of religious            circumstances of employment cited by the Goldmeiers are
incompatibility with Allstate. David Goldmeier forfeited two      legally insufficient to create an intolerably hostile work
pleasure trips, one to Las Vegas and one to the Bahamas, that     environment.
Allstate had awarded him in recognition of his services
because they had been scheduled on the Sabbath and Rosh              The Goldmeiers’ constructive discharge claim also fails
Hashanah, respectively. The Goldmeiers also were unable to        independently for lack of evidence that Allstate “deliberately
participate in a previous, voluntary, Premier Service Agency      create[d] intolerable working conditions . . . with the intention
program, because it too had required their office to be open      of forcing” the Goldmeiers to quit. Moore, 171 F.3d at 1080.
on Saturdays. The Goldmeiers do not allege that any Allstate      “To determine if there is a constructive discharge, both the
representative ever made any discriminatory, hostile,             employer’s intent and the employee’s objective feelings must
offensive, humiliating, or physically threatening comment         be examined.” Ibid. (citing Held v. Gulf Oil Co., 684 F.2d
towards them. The Goldmeiers do not even allege that any          427, 432 (6th Cir. 1982)). The seemingly stringent intent
comment, however innocuous, with respect to their religion        requirement can, however, be met “by demonstrating that
was ever made by an Allstate representative. Moreover, until      quitting was a foreseeable consequence of the employer’s
the Goldmeiers’ abrupt resignation, no action undertaken by       actions.” Ibid. Allstate’s offer of compromise after the
Allstate seems to have substantively interfered with the          Goldmeiers quit, on terms the Goldmeiers had earlier
Goldmeiers’ effective performance of their work. To the           proposed, nevertheless, strongly suggests the absence of any
contrary, the Goldmeiers express how much they enjoyed            such intent. While it is conceivable that this offer was not
their work at Allstate for more than a decade.                    made in good faith and for the sole purpose of avoiding a
                                                                  claim such as the Goldmeiers raise here, there is no evidence
   Finally, in 1998, there was the announcement of the Service    to support a finding of such an elaborate ruse. Therefore, we
Availability Standards. Allstate intransigently refused to        conclude that there was no genuine issue of material fact that
adjust the new office hours to be more congenial to the           the Goldmeiers were not constructively discharged.
Goldmeiers. This intransigence, if it had not been tempered,
as in fact it was, could potentially have led to an actual           In the alternative to a finding that they were constructively
discharge at some point in the future. The Goldmeiers cite        discharged, the Goldmeiers argue that the discipline or
Cooper for the proposition that the mere prospect of              discharge requirement found in our case law is a vestige of
discipline at some future point in time is sufficient to create   the pre-1991 employment discrimination law. See, e.g., Pyro
a hostile work environment. However, Cooper resigned the          Mining Co., 827 F.2d at 1085 (decided in 1987); Cooper, 15
day before her Sabbath absence would, cumulatively with the       F.3d at 1378 (decided in 1994 but adjudicating a claim arising
discipline for her earlier Sabbath absences, inevitably have      in 1987). Prior to 1991, relief in employment discrimination
led to her suspension under the employer’s announced rule.        suits was limited to injunctive and equitable relief, such as
Cooper, 15 F.3d at 1378, 1379 n.1. Thus, the threat of            back pay. 42 U.S.C. § 2000e-5(g). Under this law, absent
discharge had an immediacy which contrasts sharply with the       discharge or discipline, there would have been little a court
circumstances of the Goldmeiers who continued to work for         could have done to help a victim of employment
Allstate until both of them had found new employment and          discrimination. The Goldmeiers argue that this court, as well
then resigned fifty-three days before there would have been       as numerous other courts, inadvertently turned this limitation
No. 01-3888         Goldmeier, et al. v. Allstate Ins. Co.     11    12       Goldmeier, et al. v. Allstate Ins. Co.            No. 01-3888

on remedies into an element of the prima facie case. The             156 F.3d 771, 774-75 (7th Cir. 1998) (noting that “the
1991 amendments expanded the remedies available for                  [employer] had conceded that [the plaintiff] had established
intentional employment discrimination by authorizing                 a prima facie case of religious discrimination” and beginning
compensatory and punitive damages.                42 U.S.C.          its analysis with “the issue of whether the [employer] has
§ 1981a(a)(1). With these remedies, even a victim of                 satisfied its duty of reasonable accommodation”). The
employment discrimination who was not discharged or                  Goldmeiers also point to one case in another circuit which
disciplined could be offered relief by the court. Hence, they        upheld an injunction against an employer barring it from
argue, the discharge requirement repeatedly stated in our case       discharging an employee who for religious reasons refused to
law is obsolete and should not be enforced against them.             pay certain union dues. Tooley v. Martin-Marietta Corp., 648
                                                                     F.2d 1239 (9th Cir. 1981); see also Rodriguez, 156 F.3d at
   Nevertheless, for a number of reasons, we hold that               774 (noting that the plaintiff had requested injunctive relief).
discharge or discipline remains an element of a prima facie          But the Tooley court was considering the grant of an
cases of religious discrimination in employment. First, we           injunction, a form of relief that is necessarily directed at the
recently so held in a case undisputably interpreting the post-       prevention of some future violation of the law, and the future
1991 statute. In Virts, arising out of events occurring in 1997,     violation considered there, discharge, was exactly of the type
we reiterated that “[t]o establish a prima facie case, a plaintiff   that the Goldmeiers now argue need no longer be shown.
must demonstrate that . . . he was discharged or disciplined         Conversely, the Goldmeiers filed an action for damages,
for failing to comply with the conflicting employment                which must be based on the defendant’s past adverse
requirement.” 285 F.3d at 516 (citing Pyro Mining Co., 827           employment actions.4 The fact remains that neither this
F.2d at 185). Even were we so inclined, absent circumstances         court, nor any of its sister circuits with substantively parallel
not present here, no panel of this court has the authority to        religious discrimination jurisprudence, has ever endorsed the
overrule the previous, published decision of another panel.          Goldmeiers’ conclusion that no adverse employment action
See, e.g., Goad v. Mitchell, 297 F.3d 497, 503 (6th Cir. 2002)       need be shown to sustain a prima facie case.
(citing Salmi v. Sec'y of Health and Human Servs., 774 F.2d
685, 689 (6th Cir. 1985)).                                             Third, reading the discipline or discharge requirement out
                                                                     of the prima facie case creates significant analytical
  Second, despite an impressive tour through the circuits, the       difficulties. Absent this requirement, a prima facie case
Goldmeiers fail to discover even a single federal appellate          would lie wherever there was a sincere conflict and
case in the twelve years since the enactment of the                  compensation would be due when, in addition, the employer
amendments holding that the discharge or discipline                  does not immediately adopt a reasonable accommodation.
requirement has been eviscerated. Rather, the Goldmeiers             What a successful religious discrimination claim would not
quote language requiring reasonable accommodation, trying            require would be any actual employer action to the detriment
to imply that reasonable accommodation is required without           of the employee. Employers who, while not offering a formal
any condition precedent, without mentioning that these
statements follow a previous finding, or defendant’s
concession, of a prima facie case. See, e.g., Ansonia Bd. of              4
Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (explicitly                      W e need not and do not de cide w hether the Goldm eiers’ action, if
declining to rule on the existence of a prima facie case where       brought for injunctive re lief against enforcement of the S AS instead of,
                                                                     or in addition to, damages, could have been sustained by the district court
employee was not discharged); Rodriguez v. City of Chicago,          on the facts alleged here.
No. 01-3888        Goldmeier, et al. v. Allstate Ins. Co.     13    14   Goldmeier, et al. v. Allstate Ins. Co.   No. 01-3888

accommodation, deliberately turned a blind eye to employees’        given. They resigned and were not discharged, actually or
religiously motivated minor deviations from the letter of           constructively. Therefore, they have no claim under this
company policy–not an unusual situation one would                   heading.
imagine–would suddenly find themselves liable as civil rights
offenders.                                                                                       III

   Finally, we note that we have previously rejected a parallel       For the foregoing reasons, we AFFIRM the judgment of
argument. Hiler v. Brown, 177 F.3d 542, 546-57 (6th Cir.            the district court.
1999) (rejecting argument that the 1991 amendments by
allowing compensatory damages implicitly expanded the
class of potential employment discrimination defendants
beyond employers). For these reasons, we decline to follow
the Goldmeiers’ suggestion to remove the discipline or
discharge requirement.
  The parties expend considerable energy on the reasonable
accommodation question prominent in the religious
discrimination case law. “Once a prima facie case is
established, the burden shifts to the employer to show that it
could not reasonably accommodate the employee without
undue hardship.” Cooper, 15 F.3d at 1378 (citing Pyro
Mining Co., 827 F.2d at 1085). “To require an employer to
bear more than a de minimis cost in order to accommodate an
employee’s religious beliefs is an undue hardship.” Cooper,
15 F.3d at 1378 (citing Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 84 (1977)). But reasonable
accommodation is not part of the prima facie case, the basis
on which the district court decided the case. As we uphold
the district court on the same basis, we do not rule on the
reasonable accommodation question.
  The Goldmeiers’ other claims must fail for reasons already
elucidated. Ohio State employment discrimination law under
O.R.C. § 4112 tracks federal law under 42 U.S.C. § 2000e-5.
Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc.,
630 N.E.2d 669, 672 (Ohio 1994). Therefore, when their
federal religious discrimination claim failed, so did their state
religious discrimination claim. The Goldmeiers’ wrongful
discharge state law claim must also fail for reasons already
