Opinion

Passover Punishment Case Continues To Wander Through The Courts

Edwin Black Investigative Journalist

Susan Abeles’ saga began in 2013 when she took time off to observe the last two days of Passover, just as she had done annually for the past 26 years. During those years, Abeles, an Orthodox Jew, worked for the Metropolitan Washington Airports Authority (MWAA), mainly as a data specialist. In 2013, the MWAA stunned Abeles by suddenly labeling her annual Passover time off as “AWOL” absenteeism. The MWAA slapped her with a five-day suspension without pay.

Shaken, Abeles saw the action as a clear infringement of her religious rights. The last two days of the eight-day holiday are considered holy days to all observant Jews. Abeles then took retirement rather than endure continued for what she termed “harassment on account of her religious faith.”

For years, Abeles was told to routinely schedule her religious days off via various ordinary direct means, including use of the official departmental Outlook calendar. In 2013, the MWAA required an advance verbal approval from Abeles’ immediate supervisor. Even though Abeles, as in prior years, provided her supervisors in advance a complete list of all days she would be out for religious holidays in 2013, her immediate supervisor was on leave the last work day prior to the end of Passover and not available to acknowledge the final submitted request. So Abeles did the next best thing, she sent an email reminder to both her supervisor and her supervisor’s supervisor. The ranking supervisor promptly acknowledged the reminder with a reply email stating “thanks.” Despite these efforts, Abeles was still punished.

Abeles sued the Authority and her two supervisors in Federal Court. Famed Jewish civil rights attorneys Nathan Lewin and daughter Alyza Lewin took up her cause. Defending the MWAA and its supervisors is Morris Kletzkin of the Washington D.C. firm Friedlander Misler and other attorneys.

The lower court dismissed the case, asserting Abeles had been properly penalized. The Lewins appealed. On December 8, 2016, the case was argued before the Federal Appeals court in Richmond Virginia. Abeles legal claim involves a 1973 amendment to the Civil Rights Act that requires private employers to make a “reasonable accommodation” for employees’ religious observances, as well as the 1993 Religious Freedom Restoration Act. MWAA has contended that neither the federal Religious Freedom Restoration Act provisions or its Virginia state equivalent apply to it even though it is a governmental body.

The Authority’s defense has revolved around the minutia of workplace process because Abeles had not followed precise verbal procedures in this instance. For its part, the MWAA openly took the position in prior filings that Abeles, despite her 26 years of loyal service, “was a long-term, albeit mediocre, employee.” By utilizing the years-long procedure of email and official Outlook calendar postings in 2013, and not verbally reminding her direct supervisor and getting oral approval, Abeles was guilty of “insubordination,” the defendants argued. The Authority’s brief even denigrated Abeles’ legal arguments as “most bizarre.”

The oral arguments in Richmond lasted about an hour. After much debate about arcane job procedures, an exasperated Nathan Lewin finally 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.”

The Becket Fund for Religious Liberty and several Jewish organizations filed amicus briefs on behalf of 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.”               

Immediately after the oral arguments in Richmond, attorney Kletzkin was contacted by phone, refused to answer any questions, and did not respond to this reporter’s email. Nathan Lewin commented that if needed he might appeal the case to the United States Supreme Court. “This is the ultimate plain denial of religious observance by an employer. Abeles gave plenty of notice and she got ambushed by her employer.” He added, “If this case is not illegal, then no such case will be illegal.”

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