UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOWARD J. FOSTER,
Plaintiff-Appellant,

v.                                                                       No. 96-1332

SARA LEE INTIMATES,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-94-213-3-MU)

Submitted: April 30, 1997

Decided: May 22, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Howard J. Foster, Appellant Pro Se. W. R. Loftis, Jr., Robin Elizabeth
Shea, CONSTANGY, BROOKS & SMITH, Winston-Salem, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Howard J. Foster appeals from the district court's order dismissing
his employment discrimination action. Foster filed this action against
Sara Lee Intimates (Sara Lee) alleging that Sara Lee refused to make
a reasonable accommodation of his religious beliefs and that he was
discriminated against on the basis of his race. We affirm.

I.

Foster, a black male, is a Seventh Day Adventist. He believes that
the Sabbath, from Friday at sundown until Saturday at sundown, is
sacred and that work should not be performed during that time. In
1992, Uniforce, a temporary employment agency, assigned Foster to
a job at Sara Lee's facility in Kings Mountain, North Carolina, after
informing Sara Lee about Foster's inability to work during the Sab-
bath. Foster primarily worked as a lift operator. He worked the third
shift, which ran from 11 p.m. until 7 a.m., but did not work the shift
that began Friday at 11 p.m. and ended Saturday at 7 a.m. In late 1992
or early 1993, Foster began having conversations with plant manage-
ment about getting a permanent job with Sara Lee. In January 1993,
however, Sara Lee terminated the employment of all temporary
employees in Foster's building, including Foster. Sara Lee subse-
quently decided to hire some temporaries back as"SLI temporaries."
In February 1993, Foster applied for employment as a SLI temporary
and received an offer of employment. Foster began work as a SLI
temporary in March 1993. He worked as a loader/puller on third shift.
As with his previous Uniforce job, he did not work the shift that
began Friday at 11 p.m. and ended Saturday at 7 a.m.

Management subsequently sent a memorandum to all temporary
employees offering them the opportunity for permanent employment.
In June 1993 Foster returned his memorandum asking to be consid-
ered for a custodial position. Another SLI temporary, Steven Blalock,
returned his memorandum a few days earlier requesting consideration
for the same position. Although Blalock was working as an SLI tem-
porary like Foster, Blalock was already performing custodial work
and was doing so satisfactorily. The first available permanent custo-

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dial position was on third shift. Blalock was offered this position and
he accepted it in July 1993. About the same time that Blalock took
the third shift position, a first shift custodial position opened, which
ran from 7 a.m. until 3 p.m. Under Sara Lee's policy, Blalock should
have had the first opportunity to move to the more favorable shift
because he was already in that position but on a different shift.

Because of company error, however, the first shift position was
offered to Foster, and Blalock was not given the first opportunity to
accept that shift. When Blalock learned of the situation, he made it
known that he would have waited for the first shift position if he had
known that it would have been available only a few days after he had
taken the third shift position. Sara Lee subsequently allowed Blalock
to take the first shift position and offered Foster the third shift posi-
tion.

Foster accepted the third shift position and filed a charge of dis-
crimination with the Equal Employment Opportunity Commission
(EEOC). He alleged that he was required to take the third shift posi-
tion because of his race. He also claimed that Sara Lee failed to rea-
sonably accommodate his religious beliefs. In August 1993, another
first shift custodian resigned and Foster moved into that position. He
was in that position until his voluntary resignation in October 1994.
He filed this suit and the district court granted Sara Lee summary
judgment.

II.

Title VII requires employers to make reasonable accommodation
for the religious observances of its employees if this can be done
without undue hardship on the business. 42 U.S.C.§§ 2000e-2(a)(1),
2000e(j) (1994).

          To establish a prima facie religious accommodation claim,
          a plaintiff must establish that: (1) he or she has a bona fide
          religious belief that conflicts with an employment require-
          ment; (2) he or she informed the employer of this belief; (3)
          he or she was disciplined for failure to comply with the con-
          flicting employment requirements.

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Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir.
1996) (quotation omitted). "If the employee establishes a prima facie
case, the burden then shifts to the employer to show that it could not
accommodate the plaintiff's religious needs without undue hardship."
Id.

Foster's religious accommodation claim fails because there was no
conflict between his religious belief and an employment requirement.
Foster conceded that he was never required to work during the Sab-
bath and was never penalized for taking the Sabbath off. Foster also
claims that while he was a temporary employee management made
comments to him indicating that he would be able to get a permanent
job at Sara Lee if he was willing to work during the Sabbath. How-
ever, these conversations do not state a religious accommodation
claim because Foster's religious belief was accommodated. He was
never required to work during the Sabbath. Thus, there was no con-
flict between his religious belief and an employment requirement. See
Chalmers, 101 F.3d at 1019. Although he was laid off in the begin-
ning of 1993, so were all the temporaries. Further, a Title VII claim
based on these conversations is time-barred because they took place
more than 180 days before Foster filed his EEOC charge and he has
not established a continuing violation. See 42 U.S.C.A.
§ 2000e-5(e)(1) (1994); Nealon v. Stone , 958 F.2d 584, 590 n.4 (4th
Cir. 1992); Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983).

Lastly, Foster claims that two managers used profanity in his pres-
ence. These alleged discriminatory statements are not sufficient to
maintain a claim because Foster does not show that they are related
to an adverse employment decision. See EEOC v. Clay Printing, 955
F.2d 936, 941-42 (4th Cir. 1992); Robinson v. Montgomery Ward,
823 F.2d 793, 797 (4th Cir. 1987); Figures v. Board of Pub. Utils.,
967 F.2d 357, 360-61 (10th Cir. 1992). Therefore, Foster has not
established a religious accommodation claim.

III.

Foster also claims that Sara Lee discriminated against him based
on his race. Foster points to the shift-trading situation involving
Blalock that occurred in the summer of 1993 as evidence of race dis-
crimination. In employment discrimination cases, the plaintiff bears

                    4
the burden of establishing a prima facie case of discrimination before
the burden of proof shifts to the defendant to show a legitimate, non-
discriminatory reason for its action. See Alvarado v. Board of Trust-
ees of Montgomery Community College, 928 F.2d 118, 121 (4th Cir.
1991). Foster's claim fails because Sara Lee had a legitimate, nondis-
criminatory reason for offering the first available permanent custodial
position to Blalock and subsequently offering him the first shift custo-
dial position. See id.; Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252-53 (1981).

Blalock was the first to be offered a permanent custodial position
because he had performed in that position as a temporary and had
done so satisfactorily. Further, Blalock applied for the position before
Foster. Sara Lee subsequently offered the permanent, first shift custo-
dial position to Blalock because of its company policy. Under the per-
tinent policy, when an opening occurs on a particular shift, the
employee already in that position but on a different shift has the first
opportunity to move to the more favorable shift. Foster has not shown
that Sara Lee's reason for offering Blalock the first permanent custo-
dial position or the first shift position was pretextual. See Burdine,
450 U.S. at 252-53. Although Foster may have had more seniority as
a temporary employee and experience was not a requisite for the cus-
todial position, Foster does not show a causal connection between the
employment decision and his race. See Autry v. North Carolina Dep't
of Human Resources, 820 F.2d 1384, 1386 (4th Cir. 1987).

Next, Foster claims racial discrimination because of discriminatory
comments made by co-workers. However, Foster has not shown that
the workplace was permeated with discriminatory intimidation, ridi-
cule, and insult that was sufficiently severe or pervasive to alter the
conditions of his employment and create a hostile or abusive working
environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);
White v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir. 1991).
Further, Foster does not show that the alleged incidents somehow
affected an employment decision. See Clay Printing Co., 955 F.2d at
941-42; Montgomery Ward & Co., 823 F.2d at 797.

Lastly, Foster claims that after he became a custodian, Sara Lee
instituted several changes that adversely affected his working condi-
tions based on his race. However, Foster fails to establish disparate

                    5
treatment because he does not show that the changes applied only to
him based on his race. See McDonnell Douglas Corp., 411 U.S. at
800-04. Therefore, Foster has not established a racial discrimination
claim.

IV.

Because Foster has not established employment discrimination, we
deny in forma pauperis status and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

DISMISSED

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