Passover case appealed to Supreme Court
Lower courts ‘erred’ on issue of workplace religious discrimination, Lewin claims.
For 26 years, Susan Abeles, an Orthodox Jew, worked for the Washington Metropolitan Airports Authority. She took off on all the Jewish holidays, and was given permission to leave early on Fridays during the winter in order to observe the Sabbath.
During the first weeks of each year, Abeles said she followed her employer’s rules and emailed her supervisor a list of the dates of the Jewish holidays that she would be taking off that year. As a courtesy, Abeles also reminded her supervisor shortly before each Jewish holiday that she would be taking off.
But when she went to remind her supervisor in 2013 that she would be taking off on the last two days of Passover that year, she found that both her supervisor and the senior supervisor were not there. So she sent an email to both asking to meet them to remind them that she would be taking off the next two working days to observe the holiday. She did not meet with them because both were on leave that day.
When she returned to work after the holiday, Abeles, who lives in Silver Spring, Md., found that her supervisor had marked her absent without leave and docked her three days pay. Days later, she said her supervisor charged her with insubordination for failing to meet a work deadline and docked her another two days pay.
Because of the hostile work environment she said she found herself in, Abeles took early retirement and sued, alleging religious discrimination. Both the Virginia District Court and the Fourth Circuit Court of Appeals rejected her claims before trial and now Abeles’ lawyer, Nathan Lewin, is asking the U.S. Supreme Court to hear the case.
“This is the most extreme case of refusal to permit an employee to observe his or her religion that I have ever seen,” said Lewin, who has argued 28 cases before the high court. “I hope the Supreme Court will not eradicate the protection given to religious observance in the workplace by allowing this plainly erroneous decision to stand.”
He insisted that the lower courts had erred when they said Abeles had failed to properly request leave.
In its decision, the Court of Appeals quoted Abeles’ supervisor as saying: “Sending a meeting request on a day that I’m on leave to request leave for the following two days is unacceptable.”
The court said also that Abeles “did not refute” charges that she failed to meet a work deadline, failed to follow procedures for requesting leave, and was absent without leave on the last two days of Passover. It said her only explanation for missing a work deadline was that she missed a day of work to attend an aunt’s funeral.
“Plaintiff provides no evidence that she received more severe discipline than similarly situated employees,” the court ruled, adding that her employer accommodated her Sabbath requirements on Fridays and had permitted her to observe religious holidays after receiving advance approval.
Lewin acknowledged that Abeles had been granted leave to observe all the Jewish holidays. He told NJJN that her only obligation was to inform her employer of the dates of the Jewish holidays each year and that there was no need to request permission for each absence.
He said this case is no different than one in which a woman successfully sued to be able to wear a headscarf on the sales floor of a department store. She did not need to request and receive oral permission each day from the store manager to wear the scarf. Similarly, Lewin said, Abeles did not need her supervisor’s approval to take off for each Jewish holiday, provided she notify the supervisor of the holidays’ dates at the beginning of the year.
“They acknowledged in discovery that they couldn’t turn down the request for annual leave,” Lewin said. “To say that she had to ask [before each holiday] and get a response that could not be turned down is a ridiculous procedure. … She sent [a reminder] email; that should have been sufficient.”
Regarding her “insubordination” for being tardy in completing a work assignment, Abeles said she found herself “overwhelmed with work” when she returned after observing the first two days of Passover. And she said her attendance at her aunt’s funeral the day after Passover caused her to miss a deadline by one day on one of two projects that were due the same day.
Lewin said the insubordination charge is “an issue that ordinarily a jury would be asked to decide. But the [district court] judge foreclosed that possibility by ruling she was subordinate. A jury was to have heard the case 16 days later.”
The Airports Authority has until Aug. 28 to respond to Lewin’s court papers. The U.S. Supreme Court is expected to rule in October on whether it plans to hear the case.