Court Approves Passover Punishment

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.

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 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….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.

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.”

(Black, “Stunning Court Decision Approves Passover Punishment,” FrontPageMag Online, 2/9/17)