Passover-observant employee awaits ruling on her appeal

Oral arguments for Susan Abeles v. Washington Metropolitan Airports Authority were heard in the 4th Circuit Court of Appeals in Richmond. Photo via the Wikimedia Commons.
Oral arguments for Susan Abeles v. Washington Metropolitan Airports Authority were heard in the 4th Circuit Court of Appeals in Richmond.
Photo via the Wikimedia Commons.

Federal law says that employers must accommodate workers who want to take time off for religious observance.

But when an employee is considered “absent without leave” on a religious holiday and punished, the question is whether the punishment reflects adherence to company procedures in seeking leave or discrimination against the employee.

The Fourth U.S. Circuit Court of Appeals in Richmond heard oral arguments earlier this month in such a case, brought by an Orthodox Jewish woman who claims she was wrongfully penalized by her boss for taking time off to observe Passover in 2013.  She is asking the appeals court to overturn a lower court ruling and let her lawsuit go to trial.

Susan Abeles, of Silver Spring, filed a lawsuit in May, 2015, in federal district court in Washington against the Metropolitan Washington Airport Authority, where she worked as a data technician, claiming that her former employer of 26 years violated the Civil Rights Act of 1964 and the Religious Freedom Restoration Act. She is seeking to recover lost pay and receive related monetary damages.

The case was later moved to the U.S. District Court in Alexandria.

The MWAA argued that Abeles failed to follow standard procedure for requesting time off.  The result: Considered “absent without leave,” she was suspended for five days. Abeles’ supervisors, Valerie O’Hara and Julia Hodge, were also named as defendants.

Judge Claude Hilton, of the U.S. Eastern District Court, granted WMAA’s request for summary judgment in March. Abeles appealed, leading to the oral arguments held on Dec. 8 before a three-judge panel of the Fourth Circuit.

There, lawyer Nathan Lewin, of Lewin & Lewin, contended that Hilton made incorrect factual assessments and reached an erroneous conclusion.

But Bruce Heppen, associate general counsel for WMAA, argued that Hilton made the right call.
Lewin, in an interview, called Abeles’ case “the most flagrant violation of the reasonable accommodation provision” he has seen.

A reasonable religious accommodation refers to “any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs” that does not unduly burden the employer, according to the Equal Employment Opportunity Commission.

Lewin told the judges that Hilton’s opinion did not address a section of the Civil Rights Act that bars employers from failing to “reasonably accommodate the religious practices of an employee.”

The legal standard for failing to accommodate requires that an individual has a religious belief that conflicts with an employment requirement, he or she must have informed their employer of this belief and was disciplined for failing to comply with the conflicting employment requirement.

“The failure to accommodate is punishing her after she explains she followed the same procedure that she did for 26 years and gave ample notice to take off on a religious holiday,” Lewin argued.

Lewin also said Hilton made decisions on facts that were in dispute. Hilton wrote: “The undisputed charge of insubordination merited a five-day suspension penalty on its own, regardless of the allegedly discriminatory [absent without leave] classification.” In an affidavit, however, Abeles denied the claim that she was insubordinate, according to Lewin.

Judge J. Harvie Wilkinson III asked Lewin if the court should take MWAA’s 26-year record of granting leave to Abeles into consideration.

“With all respect Judge Wilkinson, yes, it is very much of a difficulty because what it does [is] it ignores and completely covers up the individual plaintiff’s right, which is what the Civil Rights Act is designed to protect,” Lewin responded.

Arguing for MWAA, Heppen said Abeles was given a performance review in January 2013 that told her to “use leave according to the Airport Authority’s absence and leave policy.”

The review also found she was being “oppositional” in 2012, the MWAA attorney said.

Judge Dennis Shedd questioned Heppen on why he raised questions about Abeles’ performance, as the case revolved around a request for leave.

Heppen admitted it “doesn’t really have very much to deal with” the request for leave, but “there is this tension in the way the case has been argued about whether it is about disparate treatment or whether [MWAA] failed to accommodate.

“On the failure to accommodate, regardless of what test you apply, the first element is there needs to be a conflict between an employment practice and religious observance. There is no conflict, as the district court found,” Heppen said.

Shedd followed up by asking if Heppen was offering the bad performance as justification for the five-day suspension Abeles received.

“I am offering it to justify some of the punishment,” Heppen responded.

During a rebuttal, Wilkinson asked Lewin to identify the conflict, and an example of it, which Heppen had brought up.

Lewin referred to Abeles’ request for time off for Passover in 2013.

He continued: “Ms. Abeles is not worse off and does not have less rights under the Civil Rights Act because she worked for 26 years for [MWAA]. If that were the first year and she wanted to take off the last days of Passover, there is a conflict.”

Heppen declined to speak about the case later because it is pending.

Supporting Abeles as friends of the court are the Becket Fund for Religious Liberty, a nonprofit, public-interest law firm, and the American Jewish Committee.

The third judge considering Abeles’ appeal is Allyson Duncan.

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