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Date Created:November 13, 2013
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Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 THE UNITED STATES COURT APPEALS United States Court Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED November 13, 2013 No. 12-20214 Lyle Cayce Clerk KAWALJEET TAGORE, Plaintiff-Appellant UNITED STATES AMERICA; UNITED STATES DEPARTMENT HOMELAND SECURITY; FEDERAL PROTECTIVE SERVICE; UNITED STATES AMERICA DEPARTMENT THE TREASURY INTERNAL REVENUE SERVICE, Defendants-Appellees Appeal from the United States District Court for the Southern District Texas Before JONES, DENNIS, and HIGGINSON, Circuit Judges. EDITH JONES, Circuit Judge: Kawaljeet Tagore Tagore was refused permission wear kirpan Sikh ceremonial sword) with blade long enough considered dangerous weapon under federal law inside the federal building where she worked for the Internal Revenue Service IRS She lost her job failing comply with the applicable regulations receive appropriate waiver. Tagore sued the United States and various federal agencies and employees, alleging violations her religious rights protected Title VII, U.S.C. 2000e seq., and the Religious Freedom Restoration Act RFRA U.S.C. 2000bb seq. The Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 district court granted summary judgment favor the government defendants both claims. affirm summary judgment Tagore Title VII claim. reverse and remand her RFRA claim for further development evidence concerning the government compelling interest enforcing against this plaintiff the statutory ban weapons with blades exceeding 2.5 inches. U.S.C. 930(a), (g)(2). BACKGROUND 2004, Tagore was hired revenue agent for the IRS the George Mickey Leland federal building Leland building Houston, Texas. April 2005, she participated Amrit Sanskar ceremony, pursuant which she was formally initiated into the Sikh faith. Following the ceremony, Tagore began wearing the five articles the Sikh faith, including approximately 9inch kirpan, Sikh article that resembles knife sword but, unlike those objects, often has edge that curved blunted. her first day back work after taking Amrit, Tagore passed through security without setting off the metal detector and proceeded her office. After Tagore informed her supervisor, Nieves Narvaez Narvaez that she was wearing her kirpan, Narvaez instructed her request security waiver. told Tagore explain that she had recently been baptized into Sikhism and needed carry the five articles faith, including the kirpan, her person all times. Thereafter, Tagore began wearing shorter kirpan with blade approximately inches long hopes that would alleviate the security concerns. Two days later, Tagore provided Narvaez letter from Amardeep Singh Bhalla Bhalla Legal Director for the Sikh Coalition, which explained that wearing the kirpan mandatory article the Sikh faith. The letter asserted that kirpans are less dangerous than scissors, box cutters, other objects that are regularly brought into federal buildings. Narvaez forwarded Tagore Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 request for security waiver Micralyn Baker-Jones Baker-Jones IRS labor specialist. After discussing the issue with Baker-Jones, Narvaez placed Tagore interim Flexiplace arrangement she could work home until the matter was resolved. The Federal Protective Service FPS advised Baker-Jones that18 U.S.C. 930(a) proscribes the knowing possession firearm other dangerous weapon Federal facility, and that the term dangerous weapon defined 930(g)(2) weapon, device, instrument, material, substance, animate inanimate, that used for, readily capable of, causing death serious bodily injury, except that such term does not include pocket knife with blade less than inches length. FPS determined that Tagore kirpan qualified dangerous weapon due its 3-inch blade. The FPS also decided that Tagore kirpan did not fall within any the statutory exemptions. See 930(d)(1) (3) (providing exemptions for (1) government officers acting lawful performance official duties, (2) federal and military officials, such possession authorized law, and (3) other persons, possession incident hunting other lawful purposes The FPS denied Tagore request for security waiver. The IRS then convened working group determine whether Tagore religious exercise wearing kirpan could accommodated way that would not violate federal law. assist that process, Narvaez emailed Tagore inquire whether she would consider (1) wearing kirpan with blade shorter than 2.5 inches, (2) wearing dulled blade, (3) wearing dulled blade sewn its sheath, (4) wearing symbolic kirpan encased plastic lucite, (5) leaving her kirpan home her car while she was federal building. Sikh Coalition attorney Bhalla responded Tagore behalf. noted that Tagore kirpan already contained dull blade and that the remaining accommodations would violate her conscience religious mandates. Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 The IRS working group considered whether Tagore could work from home reassigned federal building without on-site security. Both ideas were rejected, however, because 930(a) applies nonsecure federal buildings and permanent Flexiplace arrangement was not compatible with Tagore job responsibilities. Seeing other feasible option, the IRS directed Tagore report work the Leland building without her kirpan January 30, 2006, charged Absent Without Leave AWOL January 24, Bhalla responded that [i]n order accommodate the IRS, the bladed part Ms. Tagore kirpan now three and one half inches long and expressed that Tagore sincerely believe[d] that any further reduction the size her kirpan would violate her sincerely held Sikh religious beliefs. When Tagore attempted report work the Leland building with her kirpan, she was denied entry. The IRS declared her AWOL and stopped paying her salary. March 2006, after unsuccessful mediation, Tagore filed Title VII charge with the United States Treasury Department. She alleged that the IRS had discriminated against her the basis religion not allowing her enter the Leland building while wearing her kirpan and declaring her AWOL. May the IRS issued Tagore Notice Proposed Adverse Action, informing her its intent terminate her employment. She was formally terminated July 11, 2006.1 Tagore then filed suit district court against the United States and several federal agencies and employees,2 alleging that the defendants violated her rights under Title VII and RFRA. The district court dismissed several Tagore Tagore exhausted internal administrative EEOC remedies. The Complaint names defendants the United States; four federal agencies (the Department the Treasury DOT Department Homeland Security DHS FPS, and IRS); two cabinet secretaries; and several federal employees (William Carmody, III, David Hiebert, Christina Navarete-Wasson, Sergio Arellano, James Ellis, Nieves Narvaez, and unidentified persons referred the Doe defendants Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 claims.3 These rulings left two live claims: the Title VII religious discrimination claim against Treasury Secretary Jacob Lew Lew ),4 and the RFRA claim against the FPS, Department Homeland Security DHS the DHS Secretary, William Carmody III, David Hiebert, and unidentified defendants. After discovery, the parties filed cross-motions for summary judgment. The district court, writing comprehensive opinions, granted summary judgment favor the defendants both claims, denied Tagore motion for reconsideration, and dismissed the case with prejudice. Tagore timely appealed. STANDARD REVIEW review district court summary judgment novo, applying the same standard the district court. Moss BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). Summary judgment warranted if, viewing all evidence the light most favorable the non-moving party, the record demonstrates that there genuine issue material fact and that the moving party entitled judgment matter law. Id. (citing Fed. Civ. 56). fact material might affect the outcome the suit under the governing law, and dispute genuine the evidence such that reasonable jury could return verdict for the nonmoving party. Anderson Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The district court dismissed Tagore Title VII retaliation claim, individual-capacity claims, Title VII religious discrimination claim against all defendants except the Treasury Secretary, and RFRA claims against the IRS and DOT. Tagore does not challenge any these dismissals this appeal. Lew replaced Timothy Geithner during the pendency this appeal. Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 DISCUSSION Sincerely held religious belief. appeal, Tagore asserts that her evidence creates genuine issue material fact concerning the sincerity her religious practice wearing kirpan with blade longer than 2.5 inches. The sincerity plaintiff belief particular religious practice essential part the plaintiff prima facie case under either Title VII RFRA. See Weber Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000)(Title VII); Gonzales Centro Espirita Beneficente Uniao Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211 (2006)(RFRA). After reviewing hundreds pages deposition testimony and exhibits, the district court concluded that Tagore did not create triable issue fact that her sincere religious beliefs require her wear kirpan with 3-inch, rather than the statutorily permitted 2.5-inch, blade. With due respect the able court, this slicing too thin. This court recently explored the threshold inquiry into person beliefs when discussing prisoner claim under the related Religious Land Use and Institutionalized Persons Act RLUIPA Moussazadeh Tex. Dept. Criminal Justice, 703 F.3d 781, 790-92 (5th Cir. 2012). Briefly, each case turns its particular facts. Id. 791. The specific religious practice must examined rather than the general scope applicable religious tenets, and the plaintiff sincerity espousing that practice largely matter individual credibility. Id. 792. fact, the sincerity plaintiff engagement particular religious practice rarely challenged. Id. 791. Moussazadeh explains, [t]hough the sincerity inquiry important, must handled with light touch, judicial shyness. Id. 792 (quoting A.A. rel. Betenbaugh Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir. 2010)). [E]xamin[ing] religious convictions any more deeply would stray into the realm religious inquiry, area into which are forbidden tread. Id. (fn. omitted). Both Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 before and following Moussazadeh, claims sincere religious belief particular practice have been accepted little more than the plaintiff credible assertions. See, e.g., Garner Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (Muslim prisoners desire wear beard not challenged TDCJ); Betenbaugh, 611 F.3d 261-62 (Native American schoolboy wearing long hair sincere religious belief; Texas RFRA parallels RFRA); Mayfield Tex. Dept. Criminal Justice, 529 F.3d 599 (5th Cir. 2008) (Odin worshiper religious need for runestones and rune literature not challenged TDCJ). There was ample evidence create genuine issue material fact the sincerity Tagore practice wearing kirpan with 3-inch blade. The court contrary decision focused close questioning Tagore her deposition, which exhibited some ambiguity about whether her sincere beliefs require the kirpan blade, the entire dagger, exceed inches. Cf. Moussazadeh, 703 F.3d 792 stray[ing] from the path perfect adherence does not eviscerate claim sincerity). She adduced voluminous evidence from the Sikh community, however, that kirpans are mandated worn the religion adherents and although there are detailed regulations for the kirpans appearance, most Sikhs wear kirpans with blades longer than 2.5 inches. the government acknowledged during the pendency this appeal: There prescribed blade length for the Kirpan; its size varies based personal choice. The majority Kirpan blades range size from inches, but blades may small inches. Kirpan are always sheathed. [S]ome Sikhs believe Kirpan must worn all times Federal Protective Service, Policy Directive 22.214.171.124, Prohibited Items Program, Attachment (2012) [hereafter, Policy Statement Tagore has worn her kirpan hours day after taking Amrit, with one exception when she travelled airplane. Tagore was willing sacrifice her government employment for the sake wearing religiously significant symbolic kirpan. Tagore actions, Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 the independent evidence Sikh practices, and the governments acknowledgement create genuine issue material fact her sincere belief wearing 3-inch bladed kirpan. Title VII. Title VII prohibits employer from discriminating against employee the basis her religion, unless the employer unable reasonably accommodate the employee religious exercise without undue hardship its business. U.S.C. 2000e-2(a)(1), 2000e(j). establish prima facie case religious discrimination under Title VII, the plaintiff must present evidence that (1) she held bona fide religious belief, (2) her belief conflicted with requirement her employment, (3) her employer was informed her belief, and (4) she suffered adverse employment action for failing comply with the conflicting employment requirement. Bruff Miss. Health Servs., Inc., 244 F.3d 495, 499 n.9 (5th Cir. 2001). Assuming Tagore held sincere religious belief wearing kirpan with blade exceeding 2.5 inches, prima facie case Title VII religious discrimination exists because she lost her job result her religious practice. The district court found this claim inadequate matter law, however, two additional grounds: the DHS and FPS, not the IRS, control decisions concerning federal building security and the application Section 930(a); and the IRS proved the affirmative defense that could not accommodate Tagore wearing the kirpan without undue hardship. Both these holdings must sustained. First, because the IRS not authorized determine the security requirements federal buildings, cannot deemed legally responsible for discriminating against Tagore. Requiring IRS override the DHS/FPS would place the revenue agency the position violating federal law concerning the introduction dangerous weapons into federal buildings. employer need not accommodate employee religous practice violating other laws. See Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 Seaworth Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000) (defendant need not accommodate plaintiff religious beliefs when doing would require defendant violate federal law, which creates undue hardship); Sutton Providence St. Joseph Med. Ctr., 192 F.3d 826, 830-31 (9th Cir. 1999) [C]ourts agree that employer not liable under Title VII when accommodating employee religious beliefs would require the employer violate federal state law. United States Bd. Educ., 911 F.2d 882, 890-91 (3d Cir. 1990) (holding that allowing Muslim teacher wear religious garb while teaching, thereby violating state criminal statute, would impose undue hardship defendant school district). Even these defenses were not definitive,the FPS and DHS demonstrated that the accommodations that Tagore proposed allow her continue wear her kirpan amount more than minimis costs the employer. Title VII does not require religious accommodations that impose more than minimis costs employer. Trans World Airlines, Inc. Hardison, 432 U.S. 63, 84, Ct. 2264 (1977); Bruff, 244 F.3d 501. part, this because costly accommodations would place the religious practitioner more favorable position, the employer expense, than her coworkers. Further, more than minimis adjustments could require coworkers unfairly perform extra work accommodate the plaintiff. Tagore suggested three potential accommodations: wearing dulled kirpan blade; working from her home; working other federal buildings that might have fewer security requirements. the district court held, none these minimus measure. Security officers cannot asked ascertain whether blade sharp dull order determine whether dangerous weapon within the purview Section 930(a); this inquiry would time-consuming, impractical and detrimental the broad vigilance required the entrance public offices. The IRS also determined, and Tagore does not seriously challenge, that she could not effectively perform Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 her duties while working from home. Moreover, the option her working from other federal facilities unavailable because Section 930(a) across-the-board prohibition dangerous weapons; not facility-specific. For these reasons, the IRS failure accommodate Tagore did not violate Title VII matter law. RFRA. Assuming, again, that Tagore succeeds establishing sincerely held religious belief that mandates her wearing 3-inch kirpan blade, the remaining predicate prima facie RFRA case whether the FPS enforcement Section 930(a) substantially burdened her religious practice. See Gonzales, 546 U.S. 428, 126 Ct. 1216. This not serious hurdle: she gave her job rather than wear shorter-bladed kirpan, cf. Sherbert Verner, 374 U.S. 398, 403-06, Ct. 1790, Ed. 965 (1963), and she risked violating federal law when she entered the Leland building while wearing it. U.S.C. 930(a)(imposing fine and year imprisonment). Once prima facie case established, the government must show compelling interest enforcing that provision and that its means are the least restrictive achieve its objectives. U.S.C. 2000bb-1(a)-(b)(1) and (2); Gonzales, 546 U.S. 424. RFRA thus applies strict scrutiny government regulations that substantially burden person religious exercise. Surely, the government has compelling interest protecting federal buildings and the people and around them, and Congress choice defining dangerous weapons that cannot introduced into the buildings include bladed instruments exceeding 2.5 inches must given significant deference. The Supreme Court emphasized Gonzales, however, that RFRA requires the government explain how applying the statutory burden the person whose sincere exercise religion being seriously impaired furthers the compelling governmental interest. 546 U.S. 430-31. categorical approach Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 insufficient, particularly if, here, the statute includes exceptions the prohibition,5 cf. id. 430-37, and the government must produce evidence justifying its specific conclusion. The district court held that the government carried its burden matter law with affidavit testimony that building security officers must apply Section 930(a) uniformly, consistently and rigorously; authorizing individualized case-by-case determinations would undermine security. The district court also held that the need for uniformity application satisfied the least restrictive means test. Although the Supreme Court did not reach the less restrictive means test Gonzales, settled that the government explain why alternative policies would unfeasible, why they would less effective maintaining institutional security. Spratt R.I. Dept. Corr., 482 F.3d 33, (1st Cir. 2007). The district court rejected Tagore citations case law and instances which Sikhs wearing kirpans have been granted permission enter federal buildings, including the White House. Such examples, the court held, reflect isolated exceptions rather than the blanket individual exemption for which Tagore contends. The court also rejected Tagore argument that she covered the exception Section 930(g) that allows the bearing dangerous weapons for other lawful purposes. this regard, accepted the government argument that this exception only extends people like construction workers whose job-related duties require tools that might otherwise violate the statute. recite very briefly the district court reasoning preface the point that has been practically undermined FPS decision acknowledge has been noted, U.S.C. 930(a) does not apply law enforcement officers, military personnel, and those lawfully carrying weapons incident hunting other lawful purposes. U.S.C. 930(d). agree with the court determination that Tagore kirpan not permitted under the exceptions Section 930(a) for law enforcement officers, military personnel, and hunters. express opinion whether Tagore kirpan would permitted under the subsection for other lawful purposes. Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 kirpans ceremonial weapons that may allowed federal building either exception exemption from the statute. The December 2012 FPS Policy Statement, earlier noted, establishes FPS policy for applying security force countermeasures mitigate prohibited item entry Federal properties. Policy Statement The statement repeatedly references processes that include allowing exceptions and exemptions prohibited items for religious exercise other purposes necessary required law. Attachment the statement prescribes Procedures for Exceptions and Exemptions for Otherwise Prohibited Items, Policy Statement one which for accommodations under the Religious Freedom Restoration Act. Attachment describes Accommodations for Sikh Articles Faith, and instructs FPS officers that kirpans with blades longer than 2.5 inches require exception exemption before being carried into federal building. One must ask, why refer accommodations and append this attachment document describing procedures for obtaining exceptions exemptions if, FPS contends against Tagore, case-by-case determinations are impractical inconsistent with maintaining security? The fact that FPS promulgated this Policy Statement after the case concluded the district court does not prevent our taking judicial notice its implication for the difficult and fact-sensitive inquiry that must accompany application strict scrutiny under RFRA. Because the new policy contradicts the arguments previously advanced the government for denying Tagore exception exemption for the wearing her kirpan the Leland building, the district court application strict scrutiny must reversed and remanded for further analysis. doing, emphasize that express opinion the ultimate application strict scrutiny because the government should allowed offer more evidence concerning its asserted need for uniform application Section 930(a) and the impact the new Policy Statement this case. Case: 12-20214 Document: 00512439042 Date Filed: 11/13/2013 No. 12-20214 Precisely because kirpans may dangerous weapons the wrong hands may fall into the hands evildoers who are not Sikhs, there would seem support for certain limitations, e.g. blade length, security clearance status the bearer the kirpan, the frequency the bearer visits particular federal facility, the degree method concealment, degree attachment the person body. All these considerations, and more, may bear the factintensive nature the RFRA strict scrutiny test. Despite the importance deferring officials charged with maintaining domestic security, conclusional affidavits will insufficient overcome the policies and procedures embodied RFRA. CONCLUSION For the foregoing reasons, the judgment the district court reversed part and remanded part; further proceedings are necessary determine matter fact whether Tagore holds sincere religious belief wearing kirpan with blade exceeding the federally prescribed maximum and, so, whether the government has proven that application Section 930(a) Tagore furthers compelling government interest with the least restrictive means. AFFIRMED PART; REVERSED PART; REMANDED PART.