Posted on 02/09/2017 4:55:56 AM PST by SJackson
Three judges of the U.S. Court of Appeals for the Fourth Circuit surprisingly rejected the appeal of Susan Abeles a Washington D.C., Orthodox Jew, who was punished by the Metropolitan Washington Airports Authority (MWAA) because she took off work for the last two days of Passover 2013, as she had done for the past 26 years that she worked at the agency. Abeles’ closely-watched case evoked amicus briefs by the National Jewish Commission on Law and Public Affairs (COLPA) as well as The Becket Fund for Religious Liberty, and the American Jewish Committee. Ms. Abeles' lawyer is Nathan Lewin, the well-known advocate for Jewish religious rights."
For each of the 26 years Abeles worked for the Airports Authority since 1987, she took off for all Jewish holidays on which work is prohibited, including the last two days of Passover. Everyone at her job knew she was an Orthodox Jew. She consistently gave her supervisors a list of the dates of Jewish holidays at the beginning of each calendar year and her supervisors accepted that list as a request for annual leave on the specified Jewish holidays.
In 2012, new supervisors appeared. Ms. Abeles provided them with a list of the Jewish holidays on which she would be absent and also, at their request, specified the holidays in their Outlook calendars. On the Friday before the last two days of Passover (which fell on Monday and Tuesday) she was unable to speak with her immediate supervisor because that person was out on annual leave. So, Abeles sent an e-mail reminding the next higher supervisor in the chain of command. That supervisor replied with an e-mail that affirmatively said, “Thanks.” But when Abeles returned to work, she was slapped with an unexpected 5-day suspension for being AWOL. Abeles sued. The case was transferred to a Virginia federal court on the Airports Authority’s motion.
In a sixteen-page decision written by Judge Allyson Duncan, the first African-American judge in the Fourth Circuit, the court declared, “We conclude that MWAA did not discriminate against Plaintiff on the basis of her religion in violation of Title VII.” The Airports Authority argued that Ms. Abeles had failed to follow a formal “Leave Policy” procedure under which her immediate supervisor had to explicitly approve her leave in advance. That “Leave Policy” had not been invoked during her previous 26 years’ employment.
The Airports Authority also said it was exempt from the Religious Freedom Restoration Act because it was technically a “regional authority,” not a federal agency. The President of the United States, the governors of Virginia and Maryland, and the Mayor of the District of Columbia appoint all directors of the Airports Authority. Attorneys for the Airports Authority defended the suspension on the asserted ground that Abeles was an “insubordinate” and “mediocre” employee notwithstanding the record of awards and high performance ratings she received during her tenure. Documents produced by the Airports Authority during discovery proved that prior to her absence on Passover her supervisors had considered nothing more than a “reprimand” for alleged “insubordination.” They increased this discipline to a suspension without pay only because she had been absent on Passover.
During oral arguments, late last year in Richmond VA, an exasperated Lewin, appearing on Ms. Abeles’ behalf, abruptly declared: “Your Honor, I'm an Orthodox Jew. When I've worked for people, I've given them a list of what the Jewish holidays are at the beginning of the year. And they know that means I'm going to be out for those days. This is a phony response by [the company] saying ‘we didn't know why you would be out.’ Of course, they knew why she was out. Everybody in the whole company knew that she was a Sabbath observer and for 26 years had been absent on Jewish holidays. She listed all the Jewish holidays at the beginning of the year. And, suddenly, to penalize her even though she has listed them and has notified her supervisors on the day before she was gone—we submit that's outrageous.” In his argument to the court, Lewin called the Airport Authority’s punishment an “ambush” of Ms. Abeles.
Lewin said after the Fourth Circuit’s decision was rendered, “The Airport Authority’s conduct was the most egregious example of deliberate retaliation for observance of a religious holiday that I have seen in decades of experience in this field. If so thin a pretext as the MWAA offered can excuse punishment for religious observance, no employee with a bona fide religious duty is safe from arbitrary after-the-fact punishment by his or her employer.”
Eric Rassbach, deputy general counsel of the Becket Fund, quipped, “It takes some chutzpah for the government to punish a Jewish woman for celebrating Passover. It takes even more chutzpah to say that they are the only government agency in DC exempt from our civil rights laws.”
In a highly unusual move, the court delivered its denial in a so-called “unpublished decision,” which cannot be cited as precedent in any future cases in that circuit. When the ruling was handed down on January 26, 2017 as “unpublished,” legal experts opined that the unusual status, “reduced the likelihood that it would be noticed or criticized by lawyers.” A copy of the unpublished decision was obtained by this writer. When asked, Lewin stated that he knew of no other federal appellate “unpublished” ruling that was so lengthy and detailed.
A clearly shocked Lewin promised to file a petition requesting review by the entire roster of active judges of the Court of Appeals for the Fourth Circuit and, if necessary, seek review by the Supreme Court of the United States. Lewin and/or his daughter partner, Alyza, have been before the Supreme Court 28 times, including the famous “Jerusalem Passport” case. The undaunted litigator promised, “This decision will not stand.”
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It's been my understanding that in cases such as this that the courts have taken the position that an employer has the right not to hire an employee or to make accommodation for religious observance. But once that accommodation has been made for a period of time, changing the policy must be for a substantial business reason. Usually this comes up when a new supervisor objects to the accommodation and changes it. Accommodation in the context of scheduling days off on the religious holiday, not as extra days off.
Anticipating the question, the judge is a GWB appointee.
Wanna bet what would have happened had she requested islamic holidays off?
You read my mind.
One thing that confused me: Almost all workplaces, especially Government ones, have a leave system. You put in a leave form and it gets approved. You can also specify the reason for leave. However, if it not an official Holiday (like the Forth of July), you have to take personal leave. Even for a religious holiday.
If this woman did not follow the official procedure, it is her fault. Presenting a list of holidays by itself is not enough. And I would say this for someone of any religion.
She would have been okay if she told them she was taking the time off to go to a college riot, a Black Lives Matter arson party, or a CAIR street rally supporting Jihadis.
A purely political move to subvert RFRA and further diminsh religious liberties AND the First Amendment which is about to go nuclear with trump and Oence in office. Thus the unpublished ruling.
Where’s her vaunted public union here? Religious liberties should be the last thing invoked here as she constantly took the time off and did indeed notify her bosses who chose to arbitrarily follow the letter of the law but not the intent.
(of course my money is on an atheist or Muslim boss making that arbitrary point and the courts know it.)
How could the first African-American judge appointed make the wrong decision? This must be a mistake
Black (er, liberal-extremist-democrat-voters-only) Lives Matter supporter/appointee?
You are correct and I believe there is more to this story than what has been reported. I’ll also add that work is also not a guaranteed right and she has a union if she is a Government employee.
We are a Christian nation, if you are scheduled to work on non-Christian holidays, too bad. Do so or quit. Arrange someone else to cover you if needed. But sue? No, no way.
If the article is accurate, she has followed the same procedure for 26 years. There was no indication or directive from her boss beforehand that she should change her approach. It think that her boss had an issue with her and is attempting to use her Passover absence as a excuse to discipline her.
I had an Orthodox Jewish NCO when I was a platoon leader. With a little discussion and preparation beforehand, our First Sergeant ensured that he never had the duty on Saturdays or religious holidays. He pulled his weekend and/or holiday duties on Sundays, Christmas, Easter, etc...
I smell a poor manager/leader as the root cause here.
However,knowing what this country has become I can easily to see this applying to Christians and Jews but *not* to "protected" moslems.
worked in a clinical (as opposed to an office) area = worked in a clinical (as opposed to an office) area of a hospital
The lady got a new boss in 2014 and had no problem that year with taking time off.
No problem in 2015 either.
No problem in 2016, until that one day when the boss was out.
It didn’t happen right after getting a new boss; there were two years without a problem.
They should take it all the way to the Supreme Court.
She had given a list to her boss every year for 26 years, and the new boss for two out of those 26.
So, why all of a sudden, when the boss is out, the boss lowers the boom on her?
I see less here about her reasons for taking leave than that she apparently did not follow formal procedure for getting her leave approved
The fact it wasn’t enforced for 26 years isn’t a defense when new management decided to follow the rules
And yet they insist on muzz slime foot washing tubs and 5 times a day prayer breaks.
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