Three judges of the U.S. Court of Appeals for the Fourth Circuit 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 Passover 2013, as she had done for the previous 26 years in which 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. 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. 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 highest 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 five-day suspension for being AWOL. 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 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 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 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 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 Jan. 26 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 in 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 Holocaust,” “Financing the Flames” and “The Farhud.” He can be found atedwinblack.com.