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Case: 12-20214
Document: 00512439042
United States Court Appeals
Fifth Circuit
November 13, 2013
No. 12-20214
Lyle Cayce
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
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
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
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
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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, 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
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No. 12-20214
Sikh practices,
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
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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
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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.
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
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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
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
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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
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
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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.
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.