Stunning Federal Court Decision Approves Pesach Punishment

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By Edwin Black

Three judges of the US Court of Appeals for the Fourth Circuit surprisingly rejected the appeal of Susan Abeles — a Washington, DC Orthodox Jew, who was punished by the Metropolitan Washington Airports Authority (MWAA) — because she took off work for the last two days of Pesach in 2013.

Abeles’ closely watched case was the subject of friendly amicus briefs by the National Jewish Commission on Law and Public Affairs (COLPA), 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 that Abeles worked at the MWAA, she took off for all Jewish holidays on which work is prohibited, including the last two days of Passover. Everyone at her job knew that 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 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 in 2013 (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 email reminding the next supervisor in the chain of command. That supervisor replied with an email that affirmatively said, “Thanks.”

But when Abeles returned to work, she was slapped with an unexpected five-day suspension for missing those two days. Abeles sued. The case was transferred to a Virginia federal court on the Airports Authority’s motion.

In a 16-page decision written by Judge Allyson Duncan, 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 that it was exempt from the Religious Freedom Restoration Act, because it was technically a “regional authority,” not a Federal agency. 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.

During oral arguments late last year, 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 agency] 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.”

He added, “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 also called the Airport Authority’s punishment an “ambush” of Ms. Abeles.

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’s father-daughter team has been before the Supreme Court 28 times, including for the famous “Jerusalem Passport” case. The undaunted litigator promised, “This decision will not stand.”

Edwin Black is the New York Times bestselling author of IBM and the HolocaustFinancing the Flames and The Farhud. He can be found at www.edwinblack.com.

{Matzav.com}

12 COMMENTS

  1. If the facts are as described in the article then the following is obvious:
    1) The Airports Authority was clearly out to get Susan Abeles. The circumstances are just so outrageous there is no other plausible explanation.
    2) The Fourth Circuit court perpetrated a miscarriage of justice, and furthermore they knew it.

    This decision should be appealed and corrected.

  2. she is a jerk , a five day pay cut is not the end of the world would you rather ruin your job and relationships at work even if you win in court – people using religion to be an akshan – hashem can make up the 5 days

    • So why don’t you offer to pay for her fine. Then, pay for the even greater fine that they’ll give her on Shavuos, Tisha B’av, Rosh Hashona etc, etc.

    • Great post, except for a few things:

      1) “she is a jerk” Nasty and uncalled for, even if subsequent points are correct.
      2) “a five day pay cut is not the end of the world” Neither is a firing; it’s still a pretty big deal.
      3) “would you rather ruin your job and relationships at work even if you win in court” This is actually a point worth considering, but the flip side is by not fighting this injustice it opens the door for further injustices.
      4) “people using religion to be an akshan” Keeping Shabbos and Yom Tov is akshanus? I suppose so, but what better use of akshanus exists?
      5) “Hashem can make up the 5 days” Hashem can make up for any injustice. Using that logic should we not prosecute criminals because “Hashem can make up for” their crimes?

    • Exactly! Hey newsflash: life can be unfair at times. No need to get so worked up! Maybe she can raise this point with her supervisor and get her coworkers together to make it clear that she always takes off on pesach? Why to turn this into an entire religious thing? Thats how the muslims work. This matter could have been settled in a civil manner instead of her spending all her savings and retirement money towards a lawyer for this. Its all a publicity stunt.

  3. Was Susan Abeles orthodox to the enth degree?Or only for passover?
    Did she plausibly espouse on occasion opinions that contradicted ?
    One wonders if Susan Abeles appeared to her employers and to the Court of Appeals as schizophrenic?

  4. The current environment of religious tolerance in the workplace is the result of the actions of employees and their lawyers who stood up for blatant discrimination over the years. This is not about her 5 days of lost pay but about precluding a precedent from being set. We should express unwavering support for people who sacrifice to establish religious tolerance in the workplace.

  5. Ms Abeles followed the accepted protocol which had been accepted practice for many years was penalized and her work record was maligned by the defendants. I think that the court recognized it made a mistake by relegating its opinion to the unpublished nature hoping that would be the end of the matter. Maybe a SCOTUS with for justices who respect free exercise of religion will help

    • Agree , however be careful what you wish for
      Where does “free exercise of religion” end?Some cult?

      Secondly ,
      Ms.Abeles’ community in the past lauded Noami Regan ,Ruth Bader Ginsburg& the like,and were more jaundiced towards those who emphasized “free exercise of religion”
      Well,she “who sows the wind reaps the whirlwind”

  6. But yet the forgotten man, S.M.Rubashkin, continues to rotate in prison. The system is racist and broken. We all know if this was a Muslim or a Black from downtown Chicago, we wouldn’t be having any court case. Instead, the supervisor at the airport would of been fired, arrested, and charged with a hate crime. But an Orthodox Jew, nu nu.

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