Speedone v. Revco DS Inc ( 1999 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 sum-
mary 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 non-
discriminatory reason for its decision to deny Speedone's requests for
a transfer. We conclude that Revco has provided a legitimate, nondis-
criminatory 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 pharma-
cists to work in a store in Hagerstown, Maryland. 1 During the inter-
view 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 Sat-
urdays; 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 phar-
macy is open 120 hours per week.
2
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 Sep-
tember 1995, Speedone requested that he not be scheduled to work on
Tuesdays and Thursdays so he could participate in educating his chil-
dren 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 Opportu-
nity 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 judg-
ment 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 reli-
gious 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 deci-
sion 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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