DAVID A. GOLDMEIER and TERRY C. GOLDMEIER v. Allstate Insurance Company

*The Honorab le George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0246P (6th Cir.)
File Name: 03a0246p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID A. GOLDMEIER and
TERRY C. GOLDMEIER,
Plaintiffs-Appellants,
v.
ALLSTATE INSURANCE
COMPANY,
Defendant-Appellee.
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No. 01-3888
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-01091—Norah McCann King, Magistrate Judge.
Argued: March 25, 2003
Decided and Filed: July 24, 2003
Before: BOGGS and SILER, Circuit Judges; and STEEH,
District Judge.*
2 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
_________________
COUNSEL
ARGUED: Tony C. Merry, PALMER, VOLKEMA &
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.
Jon L. Fleischaker, DINSMORE & SHOHL, Louisville,
Kentucky, Jerome C. Tinianow, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Plaintiffs Terry C. and David A.
Goldmeier (the “Goldmeiers”) appeal the district court’s grant
of summary judgment to defendant Allstate Insurance
Company (“Allstate”), their former employer, in their action
for religious discrimination, in violation of both federal and
Ohio state law. The Goldmeiers, husband and wife, are
Sabbath-observant Orthodox Jews. They had resigned their
positions as insurance agents with Allstate after the company
announced plans to require offices to remain open on Friday
evenings and Saturday mornings. Because they had not
suffered discipline or discharge over this conflict, but instead
resigned prior to the effectiveness of the new policy, the
United States District Court for the Southern District of Ohio
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
Bexley, Ohio, and later in Lewis Center, Ohio. While the

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 3
Goldmeiers had a great deal of discretion in how they ran
their own offices, including allocation of administrative
expenditures, it is undisputed that they were not independent
contractors, but employees of Allstate. The Goldmeiers are
also Sabbath-observant Orthodox Jews and as such followed
a religious prohibition against working from sundown Friday
until sundown Saturday. Until 1998, they accommodated
their religious and work requirements by closing their office
earlier on Fridays in the winter months when the sun set
before regular closing hours and always keeping it closed on
Saturdays and Jewish holidays. In September 1998, Allstate
announced new Service Availability Standards (“SAS”). The
SAS required that, beginning on January 1, 1999, all offices
had to remain open until 6 PM on Fridays and, beginning on
July 1, 1999, from 9 AM to 1 PM on Saturdays. While an
open office did not explicitly require the Goldmeiers’
presence, it did require the presence of a licensed insurance
agent at all times and the Goldmeiers were the only such
agents in their office. Allstate employees were advised that
failure to comply with the new policy could lead to discipline,
up to and including discharge.
In response, the Goldmeiers informed Allstate that the new
policy conflicted with the demands of their religion and
initiated discussions in order to find an accommodation.
Initially, Allstate indicated that there would be no exceptions
to the office hours policy. Allstate suggested that the
Goldmeiers could hire a licensed insurance agent to cover the
hours they would not be present. Such part-time help had to
be provided by an Allstate-approved list of “vendors,” but
could be funded out of the office expense allowance that the
company allocated to each office. When the Goldmeiers’
children were young, they had used these funds to hire outside
office assistance. Nevertheless, at this time outside help was
not acceptable to the Goldmeiers for multiple reasons. They
contended that the office expense allowance would be
insufficient to pay for an additional agent and that they would
be required to cover any deficit in the allowance out of their
personal funds, as they had been required to do in previous
4 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
years. Moreover, the Goldmeiers would have been
responsible for the performance of the office even in their
absence and they “did not want to trust [their] financial
security to a vendor possibly finding someone to work while
[they] weren’t there.” Hence the Goldmeiers did not
investigate this option further.
On November 16, 1998, the Goldmeiers informed Allstate
that they considered themselves to be constructively
discharged and resigned their positions. As the Goldmeiers
conceded at oral argument, this resignation came as a surprise
to Allstate. In response, Allstate now offered to allow the
Goldmeiers to observe the Sabbath but to work on Sundays
instead, an offer the Goldmeiers had earlier made, but which
had then been rejected by Allstate. The Goldmeiers now
rejected this compromise because Allstate did not make the
offer in writing and the Goldmeiers had, even before
tendering their resignations, accepted new positions with
another employer. On January 1, 1999, the new Allstate
policy went into effect. The first Friday after the SAS went
into effect that also was a regular working day was January 8,
1999, fifty-three days after the Goldmeiers resigned.
On October 20, 1999, the Goldmeiers filed a complaint
against Allstate in federal district court. They alleged
employment discrimination on religious grounds, in violation
of 42 U.S.C. § 2000e, a parallel state law claim, under Ohio
Rev. Code § 4112, and discharge contrary to the public policy
embodied in § 4112. On July 13, 2001, the district court
granted summary judgment to Allstate on the grounds that the
Goldmeiers had not suffered an adverse employment action
and therefore failed to make out a prima facie case of
religious discrimination. The district court also denied the
state law claim of discharge contrary to public policy because
it concluded the Goldmeiers had not been discharged. Before
this court now is the Goldmeiers’ timely appeal of the grant
of summary judgment.

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 5
II
“Title VII makes it unlawful for an employer to ‘discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s religion.’” Cooper v. Oak Rubber Co., 15 F.3d
1375, 1378 (6th Cir. 1994) (quoting 42 U.S.C. § 2000e-
2(a)(1), internal alterations omitted); accord Virts v. Consol.
Freightways Corp., 285 F.3d 508, 516 (6th Cir. 2002).
The employee bears the burden of establishing a prima
facie case, and sustains that burden by showing that he
holds a sincere religious belief that conflicts with an
employment requirement; that he has informed his
employer of the conflict; and that he was discharged or
disciplined for failing to comply with the conflicting
requirement.
Cooper, 15 F.3d at 1378 (citing Smith v. Pyro Mining Co.,
827 F.2d 1081, 1085 (6th Cir. 1987)); accord Virts, 285 F.3d
at 516. Religious discrimination can arise out of an
employer’s failure to “accommodate those employees who
refuse to work on particular days of the week because of their
religious beliefs.” Pyro Mining Co., 827 F.2d at 1085.
In the present case, the parties agree that the Goldmeiers
sincerely hold a religious belief barring them from work on
the Sabbath and that they had informed their employer of that
belief. Therefore the existence of a prima facie case depends
on two disputed propositions, whether that religious belief
conflicted with the SAS and whether they were discharged or
disciplined for failing to comply with the SAS.
Allstate contends that the SAS did not conflict with the
Goldmeiers’ religious beliefs because it did not directly
require them to work on the Sabbath. The SAS merely
required that the office would remain open during Sabbath
hours, but did not prevent them from hiring substitute agents
6 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
1This is not to say that every such conflict results in a valid religious
discrimination claim. Many conflicts of this type will still fail to give rise
to such a claim under the reasonable accommodation part of the test.
However, the search for reasonable accomm odation is not part of the
prima facie case.
out of their office expense allowance, allowing the
Goldmeiers to comply with both the SAS and their religious
requirement. In this regard the factual situation differs from
the more common religious discrimination case in which the
employer explicitly requires an employee to work during the
Sabbath. The employment requirement here only placed an
additional burden on the religious observance, the expenditure
of the limited office expense allowance or the Goldmeiers’
personal funds.
Nevertheless, where the conflict between an employee’s
religious belief and an employer’s requirement can only be
removed by the employee’s forfeiture or expenditure of a
substantial benefit available to other employees, we hold that
conflict sufficient to establish a prima facie religious
discrimination case exists.1 In Cooper, we ruled on a similar
argument with respect to vacation time:
We recognize that use of vacation time legitimately may
be required to allow an employee to avoid work on
religious holidays or, in combination with other methods,
to allow an employee to regularly avoid working on the
Sabbath. Under appropriate circumstances, this use of a
portion of an employee’s vacation entitlement may be
reasonable. In this case, however, Cooper was faced
with the choice of working on the Sabbath or potentially
using all of her accrued vacation to avoid doing so. Getz
v. Pennsylvania, 802 F.2d 72 (3d Cir. 1986); United
States v. City of Albuquerque, 545 F.2d 110, 113-14
(10th Cir. 1976). An employer who permits an employee
to avoid mandatory Sabbath work only by using accrued
vacation does not “reasonably accommodate” the
employee’s religious beliefs. Such an employee stands

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 7
2This discussion in Cooper occurs within the context of the
reasonable acco mmoda tion analysis. But that circumstance on ly
strengthens our conclusion. If requiring an employee to use up all of her
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
eliminates the very existence of a religious conflict.
3The parties extensively dispute the cost and availability of such
support staff and whether the office expense allowance could have been
expected to completely cover it. However, there appears to be no dispute
that the expense would have been greater than the allowance or would
have at least consumed a substantial fraction of the allowance. As the
Goldme iers would have b een substantively adversely affected by this
expenditure in either case, we need not resolve this factual dispute.
to lose a benefit, vacation time, enjoyed by all other
employees who do not share the same religious conflict,
and is thus discriminated against with respect to a
privilege of employment.
Cooper, 15 F.3d at 1379 (internal citation form normalized).2
By the same token, the Goldmeiers were faced with a choice
of violating the Sabbath or hiring outside staff using either
their own funds or their limited office expense allowance,
otherwise available for other business-enhancing purposes to
other agents.3 Such an incompatibility between an
employment and a religious requirement is sufficient to create
a conflict.
We have consistently held that a prima facie case of
religious discrimination requires discharge or discipline for
failure to comply with an employment requirement
conflicting with a religious requirement. See, e.g., Cooper,
15 F.3d at 1378; Pyro Mining Co., 827 F.2d at 1085; Virts,
285 F.3d at 516-17. In the present case it is undisputed that
the Goldmeiers were not actually discharged or disciplined.
To remedy this defect fatal to their case, the Goldmeiers offer
two alternative theories: that they were constructively
discharged and that the 1991 Civil Rights Act amendments
sub silentio eliminated the discharge requirement.
8 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
The Goldmeiers maintain that they were constructively
discharged. “To constitute a constructive discharge, the
employer must deliberately create intolerable working
conditions, as perceived by a reasonable person, with the
intention of forcing the employee to quit and the employee
must actually quit.” Moore v. KUKA Welding Sys. & Robot
Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Logan
v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). In the
case of constructive discharge, “working conditions would
have been so difficult or unpleasant that a reasonable person
in the employee’s shoes would have felt compelled to resign.”
Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887
(6th Cir. 1996) (quoting Held v. Gulf Oil Co., 684 F.2d 427,
432 (6th Cir. 1982)). “In determining whether an
environment is one that a reasonable person would find
hostile or abusive and that the plaintiff in fact did perceive to
be so, courts look at all of the circumstances.” Hafford v.
Seidner, 183 F.3d 506, 512 (6th Cir. 1999). Such
circumstances include “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s performance.”
Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); accord Abeita
v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.
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,
636-37 & n.2 (6th Cir. 1987) (evaluating whether sexual
harassment constitutes constructive discharge from the point
of view of a reasonable member of the gender being
harassed).
Under these standards, Allstate did not expose the
Goldmeiers to a work environment so hostile and abusive as
to compel a reasonable Orthodox Jewish couple to quit, rather
than tolerate it for one more day. The Goldmeiers’ physical
work environment was their own office, selected, staffed, and
controlled exclusively by themselves and hence could hardly
have been intolerable to them. Their broader corporate

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 9
environment consisted of regular contacts with Allstate
management. Prior to the announcement of the new SAS in
1998, the Goldmeiers cite a few instances of religious
incompatibility with Allstate. David Goldmeier forfeited two
pleasure trips, one to Las Vegas and one to the Bahamas, that
Allstate had awarded him in recognition of his services
because they had been scheduled on the Sabbath and Rosh
Hashanah, respectively. The Goldmeiers also were unable to
participate in a previous, voluntary, Premier Service Agency
program, because it too had required their office to be open
on Saturdays. The Goldmeiers do not allege that any Allstate
representative ever made any discriminatory, hostile,
offensive, humiliating, or physically threatening comment
towards them. The Goldmeiers do not even allege that any
comment, however innocuous, with respect to their religion
was ever made by an Allstate representative. Moreover, until
the Goldmeiers’ abrupt resignation, no action undertaken by
Allstate seems to have substantively interfered with the
Goldmeiers’ effective performance of their work. To the
contrary, the Goldmeiers express how much they enjoyed
their work at Allstate for more than a decade.
Finally, in 1998, there was the announcement of the Service
Availability Standards. Allstate intransigently refused to
adjust the new office hours to be more congenial to the
Goldmeiers. This intransigence, if it had not been tempered,
as in fact it was, could potentially have led to an actual
discharge at some point in the future. The Goldmeiers cite
Cooper for the proposition that the mere prospect of
discipline at some future point in time is sufficient to create
a hostile work environment. However, Cooper resigned the
day before her Sabbath absence would, cumulatively with the
discipline for her earlier Sabbath absences, inevitably have
led to her suspension under the employer’s announced rule.
Cooper, 15 F.3d at 1378, 1379 n.1. Thus, the threat of
discharge had an immediacy which contrasts sharply with the
circumstances of the Goldmeiers who continued to work for
Allstate until both of them had found new employment and
then resigned fifty-three days before there would have been
10 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
the first actual conflict between their religious and
employment requirements. Even in combination, all
circumstances of employment cited by the Goldmeiers are
legally insufficient to create an intolerably hostile work
environment.
The Goldmeiers’ constructive discharge claim also fails
independently for lack of evidence that Allstate “deliberately
create[d] intolerable working conditions . . . with the intention
of forcing” the Goldmeiers to quit. Moore, 171 F.3d at 1080.
“To determine if there is a constructive discharge, both the
employer’s intent and the employee’s objective feelings must
be examined.” Ibid. (citing Held v. Gulf Oil Co., 684 F.2d
427, 432 (6th Cir. 1982)). The seemingly stringent intent
requirement can, however, be met “by demonstrating that
quitting was a foreseeable consequence of the employer’s
actions.” Ibid. Allstate’s offer of compromise after the
Goldmeiers quit, on terms the Goldmeiers had earlier
proposed, nevertheless, strongly suggests the absence of any
such intent. While it is conceivable that this offer was not
made in good faith and for the sole purpose of avoiding a
claim such as the Goldmeiers raise here, there is no evidence
to support a finding of such an elaborate ruse. Therefore, we
conclude that there was no genuine issue of material fact that
the Goldmeiers were not constructively discharged.
In the alternative to a finding that they were constructively
discharged, the Goldmeiers argue that the discipline or
discharge requirement found in our case law is a vestige of
the pre-1991 employment discrimination law. See, e.g., Pyro
Mining Co., 827 F.2d at 1085 (decided in 1987); Cooper, 15
F.3d at 1378 (decided in 1994 but adjudicating a claim arising
in 1987). Prior to 1991, relief in employment discrimination
suits was limited to injunctive and equitable relief, such as
back pay. 42 U.S.C. § 2000e-5(g). Under this law, absent
discharge or discipline, there would have been little a court
could have done to help a victim of employment
discrimination. The Goldmeiers argue that this court, as well
as numerous other courts, inadvertently turned this limitation

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 11
on remedies into an element of the prima facie case. The
1991 amendments expanded the remedies available for
intentional employment discrimination by authorizing
compensatory and punitive damages. 42 U.S.C.
§ 1981a(a)(1). With these remedies, even a victim of
employment discrimination who was not discharged or
disciplined could be offered relief by the court. Hence, they
argue, the discharge requirement repeatedly stated in our case
law is obsolete and should not be enforced against them.
Nevertheless, for a number of reasons, we hold that
discharge or discipline remains an element of a prima facie
cases of religious discrimination in employment. First, we
recently so held in a case undisputably interpreting the post-
1991 statute. In Virts, arising out of events occurring in 1997,
we reiterated that “[t]o establish a prima facie case, a plaintiff
must demonstrate that . . . he was discharged or disciplined
for failing to comply with the conflicting employment
requirement.” 285 F.3d at 516 (citing Pyro Mining Co., 827
F.2d at 185). Even were we so inclined, absent circumstances
not present here, no panel of this court has the authority to
overrule the previous, published decision of another panel.
See, e.g., Goad v. Mitchell, 297 F.3d 497, 503 (6th Cir. 2002)
(citing Salmi v. Sec'y of Health and Human Servs., 774 F.2d
685, 689 (6th Cir. 1985)).
Second, despite an impressive tour through the circuits, the
Goldmeiers fail to discover even a single federal appellate
case in the twelve years since the enactment of the
amendments holding that the discharge or discipline
requirement has been eviscerated. Rather, the Goldmeiers
quote language requiring reasonable accommodation, trying
to imply that reasonable accommodation is required without
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
Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (explicitly
declining to rule on the existence of a prima facie case where
employee was not discharged); Rodriguez v. City of Chicago,
12 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
4W e need not and do not de cide w hether the Goldm eiers’ action, if
brought for injunctive re lief against enforcement of the SAS instead of,
or in addition to, damages, could have been sustained by the district court
on the facts alleged here.
156 F.3d 771, 774-75 (7th Cir. 1998) (noting that “the
[employer] had conceded that [the plaintiff] had established
a prima facie case of religious discrimination” and beginning
its analysis with “the issue of whether the [employer] has
satisfied its duty of reasonable accommodation”). The
Goldmeiers also point to one case in another circuit which
upheld an injunction against an employer barring it from
discharging an employee who for religious reasons refused to
pay certain union dues. Tooley v. Martin-Marietta Corp., 648
F.2d 1239 (9th Cir. 1981); see also Rodriguez, 156 F.3d at
774 (noting that the plaintiff had requested injunctive relief).
But the Tooley court was considering the grant of an
injunction, a form of relief that is necessarily directed at the
prevention of some future violation of the law, and the future
violation considered there, discharge, was exactly of the type
that the Goldmeiers now argue need no longer be shown.
Conversely, the Goldmeiers filed an action for damages,
which must be based on the defendant’s past adverse
employment actions.4 The fact remains that neither this
court, nor any of its sister circuits with substantively parallel
religious discrimination jurisprudence, has ever endorsed the
Goldmeiers’ conclusion that no adverse employment action
need be shown to sustain a prima facie case.
Third, reading the discipline or discharge requirement out
of the prima facie case creates significant analytical
difficulties. Absent this requirement, a prima facie case
would lie wherever there was a sincere conflict and
compensation would be due when, in addition, the employer
does not immediately adopt a reasonable accommodation.
What a successful religious discrimination claim would not
require would be any actual employer action to the detriment
of the employee. Employers who, while not offering a formal

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No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 13
accommodation, deliberately turned a blind eye to employees’
religiously motivated minor deviations from the letter of
company policy–not an unusual situation one would
imagine–would suddenly find themselves liable as civil rights
offenders.
Finally, we note that we have previously rejected a parallel
argument. Hiler v. Brown, 177 F.3d 542, 546-57 (6th Cir.
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
14 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
given. They resigned and were not discharged, actually or
constructively. Therefore, they have no claim under this
heading.
III
For the foregoing reasons, we AFFIRM the judgment of
the district court.

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