U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSIONHOUSTON DISTRICT OFFICE

Kawaljeet Kaur REDACTED

Complainant

v.

EEOC Case No. 460-2007-00023X

Agency No. TD 06-2236

Henry M. Paulson, Jr.,Secretary of the Treasury,Internal Revenue Service

Agency

COMPLAINANT’S OPPOSITION TO AGENCY’S MOTION FORDECISION WITHOUT A HEARING AND DISMISSAL

I. INTRODUCTION

This complaint arises from allegations by Kawaljeet Kaur REDACTED of employment

discrimination committed by the Internal Revenue Service (“IRS”). The IRS 1) required Ms.

REDACTED to work from home for over nine months, 2) deemed her absent without leave, and

3) ultimately terminated her, after it forced her to choose between her continued employment or

her religious faith, and she chose the latter.

Ms. REDACTED carries a kirpan, a religious article of the Sikh faith. The IRS maintains

that a conflict exists between Ms. REDACTED’s religious mandate, and it’s internal workplace

requirements as well as federal law. Ms. REDACTED alleges that the IRS, by failing to grant

an accommodation that would have permitted her to work as an Internal Revenue Agent while

carrying a kirpan,, violated Title VII of the Civil Rights Act of 1964.

Put in simpler terms, this case is about a Sikh-American who wanted to serve as an IRS

Revenue Agent and practice her religion. Regrettably, Ms. REDACTED was forced to make

what the Honorable United States Supreme Court Justices Thurgood Marshall and William

Brennan once described as the “cruel choice” between surrendering one’s religion or one’s job.

See Trans World Airlines v. Hardison, 432 U.S. 63, 87 (1977)

In the Agency’s Motion for Decision Without a Hearing and Dismissal, the IRS asserts

that, as a matter of law, it is entitled to judgment on the religious discrimination claims asserted

by Ms. REDACTED as well as dismissal of the complaint. However, Ms. REDACTED

presents substantial evidence demonstrating numerous genuine issues of material fact that

preclude summary judgment under Rule 56, FED. R. CIV. P. and dismissal under 29 C.F.R. §

1614.109(g)(1). Accordingly, the IRS’ Motion should be denied.

II. ISSUES ACCEPTED1

The Department of Treasury accepted the following issues for investigation of

Complainant REDACTED’s complaint of discrimination:

1. Was the Complainant subjected to disparate treatment based on her religion (Sikhism) when beginning April 2005 and ongoing, she was not allowed to wear her Kirpan in the workplace; and thereafter she was placed on Flexi-place until the situation regarding her Kirpan was resolved. Subsequently, on January 30, 2006; and thereafter, she was charged with being Absent Without Leave (AWOL) regardless of whether she has been able to enter the building wearing her Kirpan; and

2. Was the Complainant discriminated against based on her religion (Sikhism) when the employer failed to reasonably accommodate her religious practices, when beginning April 2005 and ongoing, she was not allowed to wear her Kirpan in the workplace; and thereafter she was placed on Flexi-place until the situation regarding her Kirpan was resolved. Subsequently, on January 30, 2006; and thereafter, she was charged with being Absent Without Leave (AWOL) regardless of whether she has been able to enter the building wearing her Kirpan?

See Investigative File (hereinafter “I.F.”) at 2-3.

1 The Complainant’s Motion to Amend Complaint to include an allegation of adverse impact discrimination is currently pending before the EEOC Administrative Judge.

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III. CONTEXTUAL AND INFORMATIONAL CASE BACKGROUND2

A. The Sikh Religion and the Kirpan

The Sikh religion is a monotheistic religion that originated in the late fifteenth century in

the northwestern area of South Asia that is known today as Punjab. See I.F., tab 4 at 43-44.3 It

is a distinct and independent religion and is not affiliated with any other religion. See generally

id., tab 4 at 43-48. With over 20 million followers worldwide, Sikhism is the fifth largest

religion in the world today. See id., tab 4 at 47.

On or about April 14, 1699, the tenth Sikh Guru4 decreed that all Sikhs take amrit (be

initiated into the Sikh faith), and keep five articles of faith, including the kirpan. See id., tab 4 at

44 – 45; see also REDACTED Dep. at 85. Since that time, Sikhs have been required, as a

matter of religious belief and practice, to take amrit and maintain five articles of faith, including

the kirpan, on or as part of their person. Ex. 2, Rehat Maryada at 26; see also I.F., tab 4 at 44 –

45; Ex. 1, REDACTED Dep. at 77 – 78, 85; These articles of faith are physical manifestations

of cores Sikh spiritual values, reminding their bearer that her actions should be consistent with

her beliefs. The obligation of Sikhs to keep these articles of faith is a cornerstone of the Sikh

religion and is commonly viewed by members of the Sikh faith to be among the central

requirements of the Sikh religion.5

2 The purpose of this section of the memorandum is to provide the Court and parties with relevant substantive information related to both the historical and contemporary context in which this litigation arises.3 See also "Sikhism" Encyclopædia Britannica. 2007. Encyclopædia Britannica Online, 2 June 2007 <http://www.search.eb.com/eb/article-9105865>.4 The term “Guru” means “Enlightener.” In Sikhism there were a total of ten living Gurus, all of whom are considered “prophets,” or direct messengers for a higher transcendental power. See I.F., tab 4 at 43-44; Kapur Singh, Sikhism for the Modern Man, 4th ed., Amritsar: Guru Nanak Dev University, 2000, p. 34.5 Kapur Singh, Me Judice, Amritsar: B. Chattar Singh Jiwan Singh, 2003, p. 258-264.

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A kirpan, the Sikh article of faith at issue in this case, commonly resembles a sword but

varies in length, and the portion representative of a “blade”6 is often not sharp. See, e.g., Ex. 1,

REDACTED Dep. (pictures of Complainant’s kirpan7). Although there is no prescribed length,

kirpans are often six to eight inches in length; about half of that length is usually representative

of the “hilt” and the other half, the “blade.” See id. As a matter of practice, a kirpan is kept in a

tight sheath. See, e.g., Ex. 3, REDACTED Decl. at ¶ 3. Consistent with the Rehat Maryada (the

Sikh Code of Conduct) the kirpan is to be worn using a gatra, a strap typically worn across the

chest and over the shoulder that enables a kirpan to be suspended at one's waist or tucked inside

one's belt.  See Ex. 2, Rehit Maryada at 24; Ex. 3, REDACTED Decl. at ¶ 3.

The word “kirpan” comes from two Punjabi words. 'Kirpa' means an act of kindness, a

favor; and 'aan' means honor, respect, self-respect. See Ex. 1, REDACTED Dep. at 89.8 The

kirpan is therefore a religious article that obligates a Sikh to the highest ideals of generosity,

compassion, and service to humanity. See Ex. 1, REDACTED Dep. at 88; I.F., tab 4 at 45. It

acts as a constant reminder to its bearer of a Sikh’s solemn duty to protect the weak and promote

justice for all. See Ex. 1, REDACTED Dep. at 88; I.F., tab 4 at 45.9

Moreover, the kirpan is an allusion to the transcendental knowledge that cuts through

ignorance and sin, as described in the Sikh scripture, the Sri Guru Granth Sahib10:

6 Quotation marks are used around the word “blade” here because the Complaint disputes that the portion of her kirpan that resembles a blade is actually a blade as commonly understood i.e., that it is capable of cutting and/or inflicting injury.7 The pictures of Ms. REDACTED’s kirpan taken during her deposition are not labeled with a page number. They have been placed at the very end of Complainant’s Exhibit 1.8 See also Gobind Singh Mansukhani “Sikh Rehit Maryada and Sikh Symbols” in Sikhism: It’s Philosophy & History, eds. Daljeet Singh & Kharak Singh, 319. 9 See also David B. Kopel “Self Defense in Asian Religions” 33 (to be published in Liberty Law Review vol 2:1) available at www.davekopel.com/Religion/Self- defense -in-Asian-religions.pdf (last visited June 3, 2007).10 Siri Guru Granth Sahib, Guru Ram Das, Maru, pg. 1087.

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From the Guru, I have obtained the supremely powerful sword of spiritual wisdom. I have cut down the fortress of duality and doubt, attachment, greed and egotism. The Name of the Lord abides within my mind; I contemplate the Word of the Guru's hymns.

Venerable Sikh theologian Kapur Singh further explains11:

One meaning of the kirpan has already been referred to as a weapon [used figuratively], which cuts at the very roots of avidya, nescience, that separates the transient, puny, individual self from the abiding, immortal, Universal Self.  The kirpan, therefore, is symbolic of the Transcendental Knowledge, the brahmanjnana, which destroys the illusion of the temporalia, the world of Time and Space, and leads to the Life everlasting.  It is symbolic of the Guru Himself who is the Destroyer of Ignorance; it is nothing less than an Attribute of God to which a reference is made in the Muslim Sufi literature, as, alhadt. 

Thus, contrary to the IRS’ characterization of the kirpan as a sword or weapon, the kirpan is an

article of faith and, as described above, functions quite differently from the other two.

B. History of Sikh Migration to the United States

Sikhs first migrated from the Punjab region of India to the United States in the early

1900’s, arriving in British Columbia, Canada, in 1902.12 From Canada they migrated south,

settling in the states of California, Oregon and Washington. According to N. Gerald Barrier, a

professor of Sikh Studies at the University of Wisconsin, when this group of immigrants first

arrived in the United States, “[t]he numbers were not large, but the specter of a ‘Hindu’ or

‘turban13’ tide, when combined with the current racial attitudes and fears about Asian immigrants

as a whole, caused a backlash and led to a series of administrative and legislative measures that

put . . . limits on future migration during the second decade of the century.”14

11 Kapur Singh, Prasaraprasna, 103 (3rd ed., Guru Nanak Dev University, Amritsar, 2001) (1959).12 N. Gerald Barrier, “Sikh Emigrants and the Homeland: The Transmission of Information, Resources and Values in the Early Twentieth Century”ch.3 in The Sikh Diaspora, Barrier & Dusenbery, Chanakya,, p. 69.13 Sikh men and some Sikh women wear a turban to cover their unshorn hair. Both the turban and unshorn hair are Sikh articles of faith.14 Id.

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By the 1960’s, however, a second wave of Sikh immigrants arrived on the eastern coast

of the United States, taking positions of employment mostly in the fields of medicine, science,

and business. A third wave of Sikh immigrants arrived in the United States in the 1980’s and

1990’s, partly as a result of political conflict in their homeland of Punjab. These immigrants

have taken a variety of employment positions, ranging from day laborers and taxi drivers to

information technology consultants. Today, approximately 500,000 Sikh Americans reside in

the United States.15

In the aftermath of the tragic events of September 11, 2001, Sikhs across the country

were subject to a variety of forms of discrimination and harassment that was largely based on a

mistaken perception that they are of Arab and/or Muslim background.16 Relative to other

vulnerable minorities, Sikhs have been disproportionately targeted for discrimination because

they wear turbans and keep unshorn hair (including facial hair).17 The forms of discrimination

that Sikhs have been subject to include illegal profiling by law enforcement authorities, the

commission of hate crimes by civilians (including fatalities), and employment discrimination.18

C. Courts Consistently Recognize that Kirpans are Not Weapons but Articles of Faith

Misunderstanding regarding Sikhism and Sikh practices, including the wearing of the

kirpan, is not uncommon. Indeed, since 2001, the Sikh Coalition,19 a Sikh advocacy

organization, has assisted Sikhs in seventeen separate criminal cases in which the individuals

15 Senate Congressional Resolution 74, 107th Congress, 1st Session, (October 2, 2001).16 Human Rights Watch, We Are Not The Enemy: Hate Crimes Against Arabs, Muslims, and Those Perceived to be Arab or Muslim after September 11 Vol. 14, No. 6(G), p. 14 (Nov. 2002) (“HRW Report”).17 Senate Congressional Resolution 74, 107th Congress, 1st Session, (October 2, 2001).18 HRW Report, pp. 17-20. 19 The Sikh Coalition is a national human and civil rights organization working to promote tolerance, understanding, and cultural diversity. The organization is a resource for the government, organizations, and citizens who want to better interact and learn about Sikhs and Sikh practices, and also represents Sikhs who have been discriminated against. See I.F., tab 4 at 40. The Sikh Coalition also is Complainant’s counsel in this proceeding before the EEOC.

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were arrested or prosecuted for carrying what the local authorities mistakenly deemed a

“weapon” under state or local criminal statutes. Ex. 4, Bhalla Decl. at ¶ 3. In all seventeen

cases, formal criminal charges against the individuals in question were dropped or dismissed

because the prosecutors consistently came to understand that kirpans are not weapons but instead

are articles of faith. Id. at ¶ 4. For example, Gerald J. Coyne, Deputy Attorney General for the

State of Rhode Island wrote:

During our review of the Sher Singh case, it was clear to us that Mr. Singh carried a kirpan only as a religious symbol, and had no intention of using the kirpan as a weapon. Thus, we advised the City of Providence that had brought the criminal against him, that this Department would not prosecute Mr. Singh if his case reached this office.

We are hopeful that law enforcement agencies will recognize the inherent religious nature of a kirpan, and also recognize that those who carry a kirpan only as a symbol of faith should not be subjected to criminal prosecution.

I.F., tab 4 at 49.

Moreover, of the three criminal cases that have been litigated regarding a kirpan in the

United States, none has resulted in a conviction. Courts have consistently recognized that

kirpans are not weapons but are instead articles of faith. In People of the State of New York v.

Partap Singh, the Court dismissed prosecution of the criminal charges against a kirpan-wearing20

Sikh sua sponte in the interests of justice. 135 Misc. 2d 701, 706; 516 N.Y.S.2d 412; 1987 N.Y.

Misc. LEXIS 2292, in I.F., tab 4 at 52-56. In State of Ohio v. Harjinder Singh, the Ohio

appellate court found “no evidence that [the defendant] possessed or carried the kirpan21 as a

20 The court’s opinion does not describe the kirpan at issue in the case.21 The court described the kirpan at issue as having “a two-and-one-half inch dulled blade” and “was sheathed and sewn fast to the waistband of [the defendant’s] under-garment.” 690 N.E.2d 917, 918 (Ohio Ct. App. 1996).

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weapon and no evidence that the kirpan was designed or adapted for use as a weapon.”22 690

N.E.2d 917, 920 (Ohio Ct. App. 1996), in I.F., tab 4 at 57 – 62.

In City of Detroit v. Sukhpreet Singh Garcha, the court considered whether a local

criminal law banning possession of a knife was applicable to the kirpan23-carrying defendant.

The court found that the law contained exceptions permitting good faith possession of knives 24

which indicated “that the ordinance was intended to apply to persons carrying a knife as a

weapon or for some unlawful purpose.” See Ex. 5, Slip op., No. Z-775606, *3 (36th Dist. Ct.,

City of Detroit), attached in appendix; see City of Detroit Ordinance §38-10-42. Because “the

Defendant was carrying the Kirpan ‘in good faith’” the court found the ordinance “inapplicable.”

The courts appear to have understood what the Honorable J. Painter (appellate judge)

articulated in his concurrence in the Ohio case, that “[t]o be a Sikh is to wear a kirpan – it is that

simple.” Harjinder Singh, 690 N.E. 2d at 921, in I.F., tab 4 at 57 – 62. See I.F., tab 4 at 50

(“The matter of Mr. Singh carrying a non-lethal, ceremonial, religious knife has come before the

court of Menomonee Falls and it has been determined, out of respect for Mr. Singh’s religious

requirements, that he does not present any type of threat whatsoever to the general public.”)

22 In his concurrence, Judge J. Painter wrote “I am amazed that such a case like this would ever be prosecuted once, much less twice, at tremendous cost to the state, the defendant, and the legal system.” State of Ohio v. Harjinder Singh, 690 N.E.2d 917, 921 (Ohio Ct. App. 1996), in I.F., tab 4 at 57 – 62. .23 The defendant in this case was carrying two kirpans; the first was ten inches long and the second, five inches long. See Ex. 5, City of Detroit v. Sukhpreet Singh Garcha, Slip op., No. Z-775606, *2 (36th Dist. Ct., City of Detroit).24 The local law in question prohibited knives in one’s possession with blades longer than three inches. See City of Detroit Ordinance §38-10-42. However, it contained the following exemption provision:

This section shall not apply to any person in possession of such knife when it is used or carried in good faith as a tool of honest work, trade, business, sport or recreation when the person in possession of the knife is actively engaged therein or actively in going to or returning from such honest work, trade, business, sport or recreation.

Id.

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IV. FACTS

Complainant Kawaljeet Kaur REDACTED was born in Delhi, India on March 27, 1973.

Ex. 1, REDACTED Dep. at 8. Ms. Kaur was born into a family that practices the Sikh faith; her

parents, grandparents, and extended family are all Sikh. Id. at 19 – 20. Several members of her

family (her father, a brother, and a sister) are amritdhari, meaning that they are Sikhs who have

taken amrit, who have been formally initiated into the faith. Id. at 80 – 81. Faith is of immense

importance to Ms. REDACTED. Ms. REDACTED considers herself Sikh and believes that

religion has made her “a better person” and has taught her “good things in life.” Id. at 20, 23.

Like many Sikhs before her, she immigrated from India to the United States, specifically

to Houston, Texas, where she presently resides. Id. at 8. She was 16 years old at the time and

came with her parents, brothers, and sisters to join members of her father’s family, who had

immigrated previously. Id. at 8 – 10. Ms. REDACTED spoke English and had no problems

integrating into the United States. Id. at 10. She enjoyed the move and living in America. Id. at

10. Despite being far from India, however, her faith remains important to her. For example, she

volunteers at a gurdwara (Sikh house of worship) in Houston at least twice per week. Id. at 11 –

12.

A. Ms. REDACTED’s Employment History

Ms. REDACTED’s employment history is a real-life immigration success story,

exemplifying motivation, dedication, and hard work. At the age of 16, shortly after immigrating

to the United States, Ms. REDACTED began working at Burger King. Id. at 13. While

simultaneously attending high school and then college, she worked her way up at the restaurant.

Id. at 13. She started as a cook, was promoted to a cashier position, and ultimately attained an

assistant manager position. Id. at 13. She remained at Burger King until her senior year in

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college, at which point she moved to Wal-Mart. Id. at 13. In 1996, Ms. REDACTED graduated

from the University of Houston with a bachelor’s degree in accounting, and promptly obtained

an entry level tax associate position at PriceWaterhouse. Id. at 11, 13. She stayed at

PriceWaterhouse for approximately seven years. Id. at 13. Although the work was fun, she

ultimately decided to leave due to the long work hours (close to 80 per week). Id. at 13.

Ms. REDACTED subsequently obtained a position with the IRS and began working on

July 12, 2004 as an Internal Revenue Agent. Id. at 14, 17; I.F., tab 7 at 93. Her job duties

included auditing large and mid-size business tax returns. Ex. 1, REDACTED Dep. at 15. She

worked in the Leland Building in Houston, a federal building. See I.F., tab 7 at 94. Nieves

Narvaez, Team Manager, was Ms. REDACTED’s direct supervisor at the IRS during the time

relevant to this proceeding. Ex. 1, REDACTED Dep. at 15; I.F., tab 7 at 93. Her second line

supervisor was James K. Ellis, Senior Manager of a Domestic Territory, Large and Mid Size

Businesses, and her third line was Sergio Arellano, Director of Field Operations, Natural

Resources, Large and Mid Size Businesses. I.F., tab 4 at 33, tab 5 at 82, tab 6 at 90.

B. As Mandated by Her Faith, Ms REDACTED Took Amrit and Began Wearing a Kirpan

Ms. REDACTED worked at the IRS without incident until mid-April of 2005 when the

agency learned that she had begun wearing a kirpan after taking amrit as mandated by her Sikh

faith. See Ex. 1, REDACTED Dep. at 78, 96 – 97. For Ms. REDACTED taking amrit was an

announcement that she was committing to the ideals of the Sikh faith. Id. at 79. She had been

looking for a wholesome purpose in life and believed that taking amrit provided her with an

answer. Id. at 79.

On approximately April 14, 2005, consistent with the teachings of Sikhism, Ms.

REDACTED took amrit and began wearing all five mandated Sikh articles of faith, including

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the kirpan. Id. at 85, 89, 91. The date was particularly significant because it was the anniversary

of Vaisakhi, the date that the tenth Guru first decreed that all Sikhs take amrit and keep the five

articles of faith. See I.F., tab 4 at 44 – 45; Ex. 1, REDACTED Dep. at 85 – 90. As an amrit

ceremony was not being held in Houston, Ms. REDACTED had flown to the Washington, D.C.

area to take amrit at a gurdwara (Sikh house of worship) there. Ex. 1, REDACTED Dep. at 94 –

95. After she took amrit, Ms. REDACTED began wearing a kirpan that was approximately nine

inches in length. Id. at 92. However, after the amrit ceremony, unsure of what to do, Ms.

REDACTED removed her kirpan to board a plane home to Houston. Id. at 94 – 95. Aside from

this one instance, Ms. REDACTED wears a kirpan at all times –including in the shower and to

sleep. Id. at 94.

C. Ms REDACTED Consistently Was Able to Pass Through Federal Security While Wearing Her Kirpan

Ms. REDACTED had informed her IRS supervisor, Nievez Narvez, about the

commitment that she was making shortly before she took amrit. Id. at 96. On approximately

April 18, 2005, Ms. REDACTED’s first day back after taking amrit, she and supervisor Nieves

Narvaez had a discussion about her kirpan. Id. at 96 – 97. Mr. Narvez expressed some concern

about her kirpan and asked her if she had had any problems getting through security while

wearing a kirpan. Id. at 96 – 97. She responded in the negative.25 Id. at 96 – 97.

The Federal Protective Service (“FPS”) manned the Leland Building’s security

checkpoints. I.F., tab 9 at 101 – 102. For approximately three days that week, Ms. REDACTED

consistently was able to pass through the FPS security screening – which included walking

25 Mr. Narvez states that Ms. REDACTED told him that she had a problem at the security checkpoint. I.F. tab 7 at 94. This, however, is untrue. Ms. REDACTED was passed through security that morning without incident. See I.F., tab 4 at 35. Indeed, David Heibert, Area Commander for the Federal Protective Service, admits that Ms. REDACTED’s kirpan only became an issue because she had informed the IRS that she was wearing it, and not because she was ever stopped while being screened at a security checkpoint. I.F., tab 9 at 101-102.

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through a metal detector – while wearing her kirpan. Ex. 1, REDACTED Dep. at 96, 98; Ex.

3, REDACTED Decl. at ¶ 8. In other words, her kirpan went undetected every time she went

through federal security. Moreover, she normally went through security twice per day, once in

the morning and once after returning from lunch. Ex. 3, REDACTED Decl. at ¶ 8.

D. The IRS Barred Ms. REDACTED from the Leland Building While Wearing Her Religiously Mandated Kirpan

On approximately April 19, 2005, Mr. Narvez asked Ms. REDACTED for written

information about the kirpan. Ex. 1,REDACTED Dep. at 97. Given the IRS’ continued

concerns, Ms. REDACTED began carrying a shorter kirpan. Id. at 91. The shorter kirpan,

which she continues to carry, is approximately six total inches in length. See Ex. 1 (pictures of

Complainant’s kirpan). The portion of her kirpan that is representative of a “blade” is

approximately three inches in length and is blunted, therefore unlikely to break skin. I.F., tab 4

at 65 – 66; Ex. 1, REDACTED Dep. at 112. The blade is as short as it can be consistent with

Ms. REDACTED’s sincere religious mandate; to Ms. REDACTED, anything shorter is not a

kirpan and is rendered meaningless. Ex. 1, REDACTED Dep. at 106.

The Sikh Coalition provided Mr. Narvaez with a letter of explanation and information

about the kirpan at the request of Ms. REDACTED on approximately April 20, 2005. Ex. 1,

REDACTED Dep. at 96 – 98; see also I.F., tab 4 at 40-64. The letter requested that the IRS

provide religious accommodation to allow Ms. REDACTED to carry her kirpan into her

workplace. See I.F., tab 4 at 40-42. On approximately the same day26, Mr. Narvez told Ms.

REDACTED to leave work informing her that carrying her kirpan to work violated agency

Rules of Conduct and federal law. I.F., tab 4 at 35.

26 Ms. REDACTED recalls the date that she was sent home April 20, 2005, while Mr. Narvaez posits that it was April 26, 2005. See I.F. tab 4 at 35, tab 7 at 94.

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E. Whether Ms. REDACTED’s Kirpan is a “Weapon” is a Genuine Issue of Material Fact Because Neither the IRS Nor Federal Protective Service Ever Inspected It Before or After She was Terminated

It is curious that the IRS deemed Ms. REDACTED’s kirpan a “weapon” when – to this

day – no one associated with the IRS or Federal Protective Service has ever inspected her kirpan

to make such a determination. The Agency contends that allowing Ms. REDACTED to wear

her kirpan into the Leland Building violates 18 U.S.C. § 930, which prohibits dangerous

weapons in federal facilities. The statute states:

Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

18 U.S.C. 930(a). Under the statute,

[t]he term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 21/2 inches in length.

18 U.S.C. §930(g)(2). Subsection (d) provides for several exceptions27 to the ban against

dangerous weapons, including “the lawful carrying of firearms or other dangerous weapons in a

Federal facility incident to hunting or other lawful purposes” (emphasis added). 18 U.S.C.

§930(d)(3).

27 The three exceptions to the statute’s ban on firearms and dangerous weapons in federal facilities are:

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law; (2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or (3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

18 U.S.C. §930(d).

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Whether Ms. REDACTED’s kirpan qualifies as a “dangerous weapon” under 18 U.S.C.

§930 or under its own “Treasury-wide” department rules is a genuine issue of material fact.

First, contrary to the IRS’ assertion,it is not “used for… causing death or serious bodily injury.”

18 U.S.C. §930(d)(3). Instead, as discussed infra, it is a religious article of faith that obligates a

Sikh to the highest ideals of generosity, compassion and is an allusion to transcendental

knowledge that cuts through ignorance and sin as described in the Sikh scripture, the Siri Guru

Granth Sahib (Guru Ram Das, Maru, pg. 1087).

Second, Ms. REDACTED’s kirpan is not “readily capable of… causing death or serious

bodily injury.” 18 U.S.C. §930(d)(3). As stated infra, the section of Ms. REDACTED’s kirpan

that resembles a blade is blunt and unlikely to break skin. I.F., tab 4 at 65; Ex. 1, REDACTED

Dep. at 112. It is less sharp and less capable of inflicting injury than the scores of scissors,

kitchen knives, letter openers or box cutters in the Leland Building. When Ms. REDACTED

first began working at the IRS, management provided her with scissors and a letter opener-knife

that were clearly more dangerous than her kirpan because the blades of both were longer and

sharper than the section representative of the blade on her kirpan. I.F., tab 4 at 36. In addition,

box cutters and kitchen knives were freely accessible to staff in the Leland Building. Id.; see

also Ex. 1., REDACTED Dep. at 141, 162-163.

Amazingly, no one from the IRS or the Federal Protective Service ever inspected28 Ms.

REDACTED’s kirpan at any time during her employment with IRS! Ex. 1, REDACTED Dep.

at 162. Therefore, none of the staff cited in the Investigator’s File, whether IRS managers (e.g.,

Nieves Narvaez, James K. Ellis, Sergio Arellano, and Christina Navarrette-Wasson) or FPS staff

had any factual basis to summarily conclude that allowing Ms. REDACTED to wear her kirpan

28 The first and only time that that an agency representative inspected Ms. REDACTED’s kirpan was IRS’ counsel in this matter during Ms. REDACTED’s deposition in February of 2007 – long after the IRS had terminated the Complainant. See Ex. 1, REDACTED Dep. at 92.

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into the Leland Building would have violated 18 U.S.C. §930. For example, David Hiebert,

Area commander for Federal Protective Service, Department of Homeland Security, asserts that

“[t]he Kirpan is not an acceptable item to bring into any Federal Building” citing security laws.

I.F., tab 9 at 102. However Mr. Hibert nor any agent of the FPS ever inspected Ms.

REDACTED’s kirpan. Indeed, the FPS rebuffed the complainant’s attempts to discuss the her

kirpan vis a vis security concerns. See I.F., tab 4 at 69.

F. Genuine Issues of Material Fact Exist as to Whether the IRS Contends that Ms. REDACTED Violated Department of Treasury Employee Rules of Conduct

Whether Ms. REDACTED’s ability to carry her kirpan into her workplace violated

Department of Treasury employee rules of conduct is also a genuine issue of material fact. Mr.

Narvaez had told Ms. REDACTED that the fact that she wore a kirpan in the workplace violated

employee rules of conduct before he sent her home in mid-April of 2005. See I.F., tab 4 at 35.

Additionally, in a letter dated January 20, 2006, Sergio Arellano, IRS Director of Field

Operations-East, told Ms. REDACTED that her kirpan was a dangerous weapon and that

wearing it into the Leland Building violated a “Treasury-wide Rule of Conduct which prohibits

the possession of dangerous weapons both in a federal facility and while on official duty.” I.F.,

tab 11 at 115. The agency, however, never cited to a specific rule in making this conclusory

allegation. In its Motion, the agency does not mention this rule whatsoever as a basis for the IRS

taking multiple adverse employment actions against Ms. REDACTED. However, Mr.

Arellano’s letter clearly states otherwise, as does the Complainant’s declaration.

G. The IRS Refused to Accommodate Ms. REDACTED’s Religiously-Mandated Article of Faith

After the IRS sent Ms. REDACTED home in mid-April of 2005 for wearing her

religiously-mandated kirpan, the Agency told her that she would have to use her personal

15

vacation time until further notice. I.F., tab 4 at 36. Ms. REDACTED challenged this decision

and ultimately, the IRS placed her on “flexi-place” leave; in other words, she was allowed to

work from home. I.F., tab 4 at 36. In the meantime, Mr. Narvaez sought the assistance of the

IRS’ Labor Relations, the Large & Mid-Size Business Equal Employment Opportunity &

Diversity Director, and General Legal Services in handling the matter. See I.F., tab 7 at 94.

Despite the Sikh Coalition’s April 19, 2005 letter to Mr. Narvaez requesting that the IRS

provide religious accommodation to allow Ms. REDACTED to carry her kirpan into her

workplace, the agency refused to do so. See I.F., tab 4 at 40-64. On June 27, 2005, the agency

via Mr. Narvaez sent Ms. REDACTED a brief electronic mail message with a list of questions

asking if she would modify various aspects of her kirpan. See Ex. 6. The full text of the e-mail

is:

Good Morning,Kawaljeet as discussed this morning would you answer the following questions:

1. Would you consider wearing a shorter blade on the Kirpan of less than 2 ½ inches?

2. Would you consider wearing dulled [sic] blade?3. Would you consider a dulled blade sewn in it’s sheath?4. Would you consider wearing a “symbolic kirpan” encased in plastic or lucite?5. Would you consider leaving the kirpan in her [sic] car or at home while in a

Federal facility?

Id. The agency characterizes this e-mail as its attempt to “discuss possible accommodations and

modifications to [Ms. REDACTED’s] kirpan.” Agency’s Motion For Decision Without A

Hearing And Dismissal (hereinafter “IRS Motion”) at 6. However, the plain language of the e-

mail indicates that it simply was a one-sided attempt to persuade Ms. REDACTED to change

her religious practice by modifying her kirpan, rather than a genuine attempt to begin a dialogue

about actual accommodation. Indeed, the agency admits as much by stating in its Motion that

“[a]ny offer that required [Ms. REDACTED] to modify the kirpan was not an accommodation

16

in her mind.” IRS Motion at 8. Even that statement is inaccurate in that it implies that the

agency offered her an accommodation that did not require her to modify her kirpan. In short, all

that the agency ever “offered” Ms. REDACTED were requests to modify her kirpan, and not a

possible accommodation that would have allowed her maintain her faith and keep up her job..

On June 30, 2005, Ms. REDACTED’s counsel provided the following response to Mr.

Narvaez:

Question One: Would you consider wearing a shorter blade on the Kirpan of less than 2 ½ inches?

Answer: Ms. REDACTED’s kirpan is three inches long. It is already as small as it can be to meet what her conscious [sic] tells her are her religious mandates. I would also note that this kirpan is already smaller than what she would normally wear in consideration of the IRS concerns about her kirpan.

Please also keep in mind that what you call the “blade of Ms. REDACTED’s kirpan is dulled. I am not sure that it could be properly called a in the conventional sense of the term.

Question Two: Would you consider wearing dulled blade?

Answer: As stated above, Ms. REDACTED’s kirpan is dulled. It is not remotely as capable of cutting as a conventional box cutter, scissor blade, staple, or actual knife.

Question Three: Would you consider a dulled blade sewn in it's sheath?

Answer: Wearing a kirpan sewn into its sheath would clearly violate Ms. REDACTED’s religious mandates. She could not wear any kirpan sewn into its sheath.

Question Four: Would you consider wearing a "symbolic kirpan" encased in plastic or lucite?

Answer: Wearing a kirpan encased in plastic or lucite would violate Ms. REDACTED’s religious mandates. She could not encase her kirpan in plastic or lucite.

17

Question Five: Would you consider leaving the kirpan in her car or at home while in a Federal facility?

Answer: Leaving her kirpan in her car or at home would clearly violate Ms. REDACTED’s religious mandates. She could not leave her kirpan at home or in her car.

I.F., tab 4 at 65 – 66. Ms. REDACTED’s testimony is consistent with the responses provided by

her attorney. See Ex. 1, REDACTED Dep. at 106 – 109, 116 – 120.

Ms. REDACTED continued working at home on flexi-place for over nine months. See

I.F., tab 4 at 36. She did not enjoy the isolation of working at home, segregated from her co-

workers. Ex. 1, REDACTED Dep. at 100-101. As time passed she increasingly was given

assignments that were below grade work or that were clerical tasks. I.F., tab 7 at 94.

Ms. REDACTED ultimately received a letter from Sergio E. Arellano, an IRS Director

of Field Operations, dated January 20, 2006 mandating that she report to work at the Leland

Building with a modified kirpan by January 30, 2006. I.F., tab 11 at 115 – 116. The letter

further advised her that the IRS had consulted with a “reputable Sikh organization” and had been

“advised that modifying a Kirpan is not without precedent.” See id. at 115. According to the

letter, the organization “note[d] that in some security situations, some Sikhs have chosen to wear

a necklace with the Kirpan length approximately 1-2 inches.” See id. at 115. Mr. Arellano

further reiterated the IRS’ previous suggested modifications to Ms. REDACTED’s kirpan

“including wearing a shorter blade, or wearing a symbolic Kirpan encased in plastic or Lucite.”

See id at 115. The letter also informed Ms. REDACTED that the IRS had [incorrectly] found

the 18 U.S.C. §930 permits no exceptions for religious reasons. See id at 115.

On January 30, 2006, Ms. REDACTED reported to work at the Leland Building wearing

her religiously-mandated kirpan. Ex. 1, REDACTED Dep. at 129. She had not modified it. Id.

at 129. She told federal security officers that she was wearing her kirpan and so they disallowed

18

her from entering the building. Id. at 129. She was sent home and the IRS thereafter charged

her with being “AWOL” (Absent without Leave). Id. at 130. This meant that the IRS removed

her from “flexi-place” leave and stopped paying her.

On March 9, 2006, Ms. REDACTED, at Mr. Narvaez’s direction, went to the Leland

Building to return some files. See I.F., tab 4 at 35; Ex. 1, REDACTED Dep. at 133-134. Ms.

REDACTED entered the building and, as before, was able to pass through federal security,

including a metal detector, while wearing her kirpan. Ex. 1, REDACTED Dep. at 133-134. In

other words, yet again, the Federal Protective Service failed to detect her kirpan.

Ultimately, Ms. REDACTED received a letter from Sergio Arellano date July 11, 2006

informing her that the IRS was terminating her. See Ex. 7, at 1 – 3; see also Ex. 8, notice of

proposed adverse action from James K. Ellis to Kawaljeet K. REDACTED dated May 4, 2006.

The IRS’ stated reasons were that she had 1) failed to observe designated duty hours because she

was AWOL for 12 weeks, and 2) willfully possessed a weapon in a federal building without

authorization as a result of entering the Leland Building with her kirpan on March 9, 2006. Id. at

1 – 3.

V. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Rule 56(c), FED. R. CIV. P. The court’s role is not “to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see also Poller v. Columbia

19

Broadcasting System, Inc., 386 U.S. 464 (1962) (even if “…the weight of the evidence favors the

moving party [that] does not authorize a court to grant summary judgment”).

The party seeking summary judgment bears the responsibility of demonstrating the

“absence of a genuine issue of material fact.29” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The burden is squarely on the moving party to establish that no triable issue of material

fact exists. Id., 477 U.S. at 323. The standard for determining whether summary judgment is

appropriate is “whether the evidence presents a sufficient disagreement to require submission to

a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-252(1986).

The court must view all evidence and any factual inferences in the light most favorable to

the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587

(1986); 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Moreover, the non-

moving party’s demonstration of a genuine issue of material fact is not a high bar:

. . . the issue of material fact required by Rule 56(c) . . . to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the parties' differing versions of the truth at trial.

First National Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968).

If a jury would be able to return a verdict for the non-movant in light of the facts

presented, the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc. , 477

U.S. 242, 249 (1986). In other words, summary judgment may be entered only where no

reasonable trier of fact could find for the non-moving party. Matsushita Electrical Industries v.

Zenith Radio Corporation, 475 U.S. 574, 587 (1986).

29 For the purposes of a summary judgment motion, a factual issue is material if its resolution could affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. , 477 U.S. at 248. Whether a fact is material is determined by the substantive law of the case. Id. at 248.

20

The Supreme Court has recognized that in discrimination cases, an employer's true

motivations are particularly difficult to ascertain. S ee United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 716 (1983) (acknowledging that discrimination cases present

difficult issues for the trier of fact, as “[t]here will seldom be ‘eyewitness' testimony as to the

employer's mental processes”). Courts have therefore found that in such cases factual

determinations are often unsuitable for disposition at the summary judgment stage. The Fifth,

Ninth, Eleventh, and D.C. Circuits have held that summary judgment is often inappropriate

because of the factual disputes inherent in most employment discrimination cases. See Sweat v.

Miller Brewing Co., 708 F.2d 655, 657 (11th Cir.1983) (“ ‘granting of summary judgment is

especially questionable’ ” in employment discrimination cases (quoting Hayden v. First Nat'l

Bank, 595 F.2d 994, 994 (5th Cir.1979))); McKenzie v. Sawyer, 684 F.2d 62, 67 (D.C.Cir.1982)

(factual disputes in most Title VII cases preclude summary judgment) In addition, the Sixth

and Ninth Circuits recognize the need to exercise caution in granting summary judgment in

discrimination cases where the plaintiff has established a prima facie case of discrimination. See

Singfield v. Akron Metropolitan Housing Authority, 389 F.3d 555, 564 (6th Cir. 2004); Lowe v.

City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985) (“Once a prima facie case is established . .

. summary judgment for the defendant will ordinarily not be appropriate on any ground”).

Summary judgment requires competent, admissible supporting evidence: “affidavits shall

be made on personal knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

Rule 56(e), Fed. R. Civ. P. Where inadmissible evidence is offered, the court must disregard it

and proceed on the basis of only the admissible evidence proffered. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 159 n.19 (1970); see also U.S. v. Alessi, 499 F.2d 513 (2nd Cir. 1979).

21

Notably, a responding party need not produce admissible evidence in order to avoid summary

judgment; rather, the court must determine whether the responding party has identified specific

facts demonstrating a genuine issue requiring resolution at trial. O-So Detroit, Inc. v. Home Ins.

Co., 973 F.2d 498 (6th Cir. 1992), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1985).

VI. MS. REDACTED MEETS HER BURDEN TO OVERCOME SUMMARY JUDGMENT FOR HER TITLE VII DISPARATE TREATMENT CLAIM

Pursuant to Title VII of the 1964 Civil Rights Act “[i]t shall be an unlawful employment

practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's ... religion....” 42 U.S.C. § 2000e-2(a).

The statute, therefore, explicitly protects employees from adverse employment actions on the

basis of religion.

A. Ms. REDACTED Can Establish a Prima Facie Case of Disparate Treatment

In analyzing disparate treatment cases based upon religion, courts utilize the same

analytical framework used for disparate treatment based upon race or sex. See Abramson v.

William Paterson College of New Jersey, 260 F.3d 265, 281 (3rd Cir. 2001); Chalmers v. Tulon

Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996). Where the employee cannot provide

direct evidence of discrimination, courts use the conventional McDonnell Douglas burden

shifting analysis. See id. ; McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-803

(1973). Under McDonnell Douglas, an employee must first establish a prima facie case of

discrimination, creating an inference that the employer unlawfully discriminated against the

employee. St. Mary’s Honors Center v. Hicks, 509 U.S. 502, 506. “[T]he precise requirements

of a prima facie case can vary depending on the context and were ‘never intended to be rigid,

22

mechanized, or ritualistic.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) quoting

Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

Generally, to establish a prima facie case of discrimination, an employee must establish

that: (1) she is a member of a protected group; (2) she was subject to an adverse employment

action; (3) she was qualified for the position; and (4) she was replaced by a person outside of the

protected class or that similarly-situated, non-protected employees were treated more favorably.

See, e.g., Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002); Abramson v. William

Paterson College of New Jersey, 260 F.3d 265, 281-282 (3rd Cir. 2001); Miller v. Borden, Inc.,

168 F.3d 308, 313 (7th Cir. 1999); Mann v. Frank, 7 F.3d 1365, 1370 (8th Cir. 1993) (Title VII

disparate treatment cases based on religion require plaintiff to show that she was treated less

favorably than others because of her religious beliefs). The 7th Circuit has even abrogated the

fourth prong of the prima facie case holding that an employee need not show that she was

replaced by someone outside of the protected class but instead should establish “a logical reason

to believe that the decision rests on a legally forbidden ground.” Carson v. Bethlehem Steel

Corp., 82 F.3d 157, 159 (7th Cir. 1996).

Ms. REDACTED can clearly establish a prima facie case of disparate treatment. She

meets the first prong because she is a member of a protected group based upon her religion,

Sikhism. Ms. REDACTED meets the second prong because she was subject to an adverse

employment decision. An “adverse employment action” is defined as a “materially adverse

change in the terms and conditions of [plaintiff’s] employment.” Hollins v. Atlantic Co., 188

F.3d 652, 662 (6th Cir. 1999); see also Crady v. Liberty Nat. Bank and Trust Co. of Indiana , 993

F.2d 132, 136 (7th Cir. 1993). Adverse employment actions include not only terminations but

actions without a loss in pay or benefits. See, e.g., White v. Burlington Northern & Sante Fe

23

Railway, Co., 364 F.3d 789, 801 (6th Cir. 2004) (discipline in which there is no loss in

compensation can be considered an “adverse employment action”); Fortier v. Ameritech Mobile

Communications, Inc., 161 F.3d 1106, 1112 (7th Cir. 1998) (“adverse job actions can include

changes that do not involve quantifiable losses in pay or benefits.”); Sanchez v. Denver Public

Schools, 164 F.3d 527, 532 (10th Cir. 1998) (“such actions are not simply limited to monetary

losses in the form of wages or benefits”).

The IRS subjected Ms. REDACTED to not one, but three separate adverse employment

actions. First, in mid-April of 2004 after the agency learned that Ms. REDACTED kept a kirpan

as mandated by her religion, the agency sent her home and barred her from her workplace. Ms.

REDACTED was forced to work from home, causing a dramatic change in the terms and

conditions of her employment. She was segregated and isolated from her workplace and her

colleagues. Ex.1, REDACTED Dep. at 100-101. As time passed, the IRS increasingly gave her

assignments that were below grade work or that were clerical tasks. I.F., tab 7 at 94. In essence,

she was punished for complying with the tenets of her faith.

Second, on January 30, 2005 after Ms. REDACTED refused to change her religious

beliefs and modify her kirpan as the IRS had mandated, the agency (through the Federal

Protective Service) barred her from reporting to work and thereafter deemed her AWOL (absent

without leave). At this point, the agency stopped providing Ms. REDACTED with pay or

benefits. Ex. 1, REDACTED Dep. at 129.

Third, the agency terminated Ms. REDACTED on July 11, 2006 because she allegedly

1) was AWOL for 12 weeks, and 2) reported to work at Leland Building with her kirpan on

March 9, 2006 to return certain files as requested. See Ex. 7, at 1 – 3. Ms. REDACTED easily

24

meets the second prong of the prima facie case for disparate treatment because she was subject to

three separate adverse employment actions.

Ms. REDACTED also meets the third prong of the prima facie case because she was

qualified for the position that she held as Internal Revenue Agent. There is no dispute about her

qualifications. Indeed, she worked without incident as an Internal Revenue Agent for

approximately eight months (from July 12, 2004 until mid-July of 2005) until the IRS sent her

home for keeping her religiously-mandated article of faith.

Finally, Ms. REDACTED meets the fourth prong of the prima facie case for disparate

treatment for two reasons. First, the IRS treated similarly situated non-Sikh employees more

favorably because the agency allowed them access to objects far more dangerous than Ms.

REDACTED’s kirpan but did not punish them or subject them to an adverse employment

action. For example, IRS management provided employees with scissors and a letter opener-

knife that were clearly more dangerous than Ms. REDACTED’s kirpan if used in an unlawful

manner. See I.F., tab 4 at 36. The blades of both were longer and sharper than the purported

“blade” on her kirpan. See id., tab 4 at 36. In addition, similarly-situated staff had access to box

cutters and kitchen knives in the Leland Building. Id., tab 4 at 36.; Ex. 1, REDACTED Dep. at

141, 162-163. Despite the fact that Ms. REDACTED’s workplace was replete with objects that,

if used unlawfully, were more dangerous than her kirpan, the IRS never disciplined non-Sikh

employees for carrying these more dangerous objects. In contrast, the agency did punish Ms.

REDACTED for carrying a less dangerous object. These fact clearly evinces animus or bias

against (less dangerous) religious objects and a preference for (more dangerous) secular objects.

Such bias clearly favors non-Sikh employees over Sikh employees and is barred by Title VII’s

protection against religious discrimination in the workplace.

25

Second, under the IRS’ reasoning, similarly-situated IRS employees who are hunters with

firearms would be allowed in the Leland Building. The IRS cites 18 U.S.C. §930 in barring Ms.

REDACTED and her kirpan from the Leland Building. The statute, however, contains several

exceptions to its ban against dangerous weapons in federal facilities, including “the lawful

carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or

other lawful purposes.” 18 U.S.C. §930(d)(3) (emphasis added). The exception for hunters with

firearms provides a huge loophole in the statute. Indeed, the complainant would argue that the

exception swallows the rule for Title VII purposes. Firearms are on their face more dangerous

than a three inch kirpan. If the IRS follows the letter of the statute and allows employees to

bring firearms into federal buildings for sport – a secular endeavor – or for other undefined

lawful purposes, then surely Ms. REDACTED should be allowed in blunted kirpan, a religious

article of faith. C.f. Fraternal Order of Police Newark Lodge No. 12 v. Newark, 179 F.3d 359

364-367 (3d Cir.) (denial of religious exemption to no-beard requirement for police officers,

while allowing secular medical exemption, violated free exercise clause of First Amendment),

cert. denied, 120 S. Ct. 56 (1999).

B. Genuine Issues of Material Fact Exist as to Whether the Agency’s Articulated Reasons Were a Pretext for Discrimination

Once an employee-plaintiff establishes the prima facie case, the burden shifts to the

employer-defendant to produce a legitimate, non-discriminatory reason for its adverse action

against the plaintiff. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1992); see also

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). The employee must then be

afforded the opportunity to prove by a preponderance of evidence that the legitimate reasons

offered by the employer were not its true reasons, but were a pretext for discrimination. Reeves,

530 U.S. at 143 citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

26

The prima facie case, combined with evidence that the employer’s proffered reason is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated without any

further evidence. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) (emphasis

added).

The agency’s purported legitimate, non-discriminatory reasons for taking multiple

adverse employment actions against Ms. REDACTED are that carrying her kirpan to work

violates 18 U.S.C. §930(d)(3), as well as a Department of Treasure employee Rule of Conduct.

There are, however, ample genuine issues of material fact about the Agency’s articulated reason

for barring Ms. REDACTED from her workplace, deeming her AWOL, and ultimately

terminating her, and whether that reason is a mere pretext for discrimination.

1. The Agency’s Articulated Reason Is Pretext for Discrimination

The Agency’s complete failure to ever inspect Ms. REDACTED’s kirpan to determine

whether the article of faith is a “dangerous weapon” under the statute is strong evidence that its

articulated reason for barring the complainant from the Leland Building is pretext for

discrimination. At no time before the IRS took its multiple adverse employment actions against

Ms. REDACTED – not before it barred her from the workplace, not before it deemed her

AWOL, and not before it terminated her – did an agent of the IRS inspect the complainant’s

kirpan. Ex. 1, REDACTED Dep. at 162. Instead, the Agency jumped to the conclusion that Ms.

REDACTED’s kirpan was a dangerous weapon based upon a conversation between her and her

supervisor. Indeed, the first and only time that the IRS inspected Ms. REDACTED’s kirpan was

when the agency’s counsel deposed her in this proceeding (eight months after her termination).

See Ex. 1, REDACTED Dep. at 162. The fact that the Agency never inspected Ms.

27

REDACTED’s kirpan prior to asserting that it is a “dangerous weapon” under 18 U.S.C. §930 is

evidence of religious animus.

In addition, the Federal Protective Service, like the IRS, has no factual basis to comment

on whether Ms. REDACTED’s kirpan is a dangerous weapon under the statute as, to date, it has

never inspected her article of faith. David Hiebert, Area commander for Federal Protective

Service, Department of Homeland Security, provided a declaration to the EEOC investigator

stating that Ms. REDACTED’s kirpan should not be brought into a federal building (see I.F., tab

9 at 102); however, he never actually inspected Ms. REDACTED’s kirpan in order determine

whether it met the definition of a “dangerous weapon” under 18 U.S.C. §930. Indeed, Heibert

nor the FPS has any first-hand knowledge of the facts of this case, as the FPS rebuffed the

complainant’s attempts to discuss her article of faith vis a vis security issues. See I.F., tab 4 at

69. Therefore, the court should ignore any declarations from the FPS concerning the

complainant’s specific factual allegations.

The IRS also provided a second reason from taking multiple adverse employment actions

against Ms. REDACTED. Mr. Narvaez had told Ms. REDACTED that the fact that she wore a

kirpan in the workplace violated employee rules of conduct before he sent her home in mid-April

of 2005. See I.F., tab 4 at 35. Additionally, in a letter dated January 20, 2006, Sergio Arellano,

IRS Director of Field Operations-East, told the Complainant that wearing her kirpan into the

Leland Building violated a “Treasury-wide Rule of Conduct which prohibits the possession of

dangerous weapons both in a federal facility and while on official duty.” I.F., tab 11 at 115. The

agency, however, never cited to a specific rule in making this conclusory allegation. In its

Motion, the agency does not mention this rule whatsoever as a basis for the IRS taking multiple

adverse employment actions against Ms. REDACTED. Mr. Arellano’s letter, however, clearly

28

states otherwise, as does Ms. REDACTED’s declaration. Whether Ms. REDACTED’s ability

to carry her kirpan into her workplace violated a Department of Treasury employee rule of

conduct is therefore a genuine issue of material fact. Moreover, the facts that 1) the Agency

failed to address the issue in its memo, and 2) the Agency never provided a specific citation for

the rule, also suggest that this purported reason for barring Ms. REDACTED from her

workplace and deeming her AWOL is simply a pretext for discrimination.

2. Whether Ms. REDACTED’s Kirpan is a “Dangerous Weapon” under 18 U.S.C. §930 Is a Genuine Issue of Material Fact

In contrast to the Agency’s conclusory assertion, Ms. REDACTED’s kirpan does not

qualify as a “dangerous weapon” under 18 U.S.C. §930. As aforementioned, the statute bans

firearms and dangerous weapons from federal facilities. See 18 U.S.C. §930(a). The statute

defines a “dangerous weapon” as:

a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 21/2 inches in length.

18 U.S.C. §930(g)(2). Ms. REDACTED’s kirpan is not used for, nor is readily capable of,

causing death or serious bodily injury. A kirpan is a Sikh article of faith. Its’ explicit purpose is

to obligate a Sikh to the highest ideals of generosity, compassion, and service to humanity, and

act as a constant reminder to its bearer of a Sikh’s solemn duty to protect the weak and promote

justice for all. See infra, sec. III (A). Indeed, the portion representing a “blade” is blunted.

I.F., tab 4 at 65 – 66. . If Ms. REDACTED intended her kirpan to be a weapon, why would she

carry one with a blunted blade? As the IRS maintains that Ms. REDACTED’s kirpan is a

“dangerous weapon” and disputes the purpose of a kirpan, a genuine issue of material fact exists

29

as to whether her kirpan qualifies as a dangerous weapon under 18 U.S.C. §930 or the “Treasury-

wide rules” that the IRS cites as the reason it fired Ms. REDACTED..

Even assuming arguendo that the court finds that a kirpan qualifies as a “dangerous

weapon[,]” subsection (d)(3) specifically exempts the article of faith from the statutory definition

of the term. Subsection (d) provides for several exceptions30, including “the lawful carrying of

firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful

purposes” (emphasis added). 18 U.S.C. §930(d)(3).

The statute provides a large loophole that swallows the rule: it allows dangerous weapons

to be carried into federal buildings incident to lawful purposes. There can be no dispute that Ms.

REDACTED wears her kirpan incident to a lawful purpose, as it is a religiously mandated

article of faith. Therefore, even if the court finds that her kirpan is a dangerous weapon (which is

a significant issue of material fact), the statute allows Ms. REDACTED’s kirpan to be carried

into a federal building for a lawful purpose, namely, as an article of faith protected by the 1st

Amendment of the United States Constitution.

Granted, the exemption for allowing dangerous weapons for lawful purpose is vaguely

worded. The statute provides no definition of what would qualify as a “lawful purpose.” It

provides only one possible clue as to how broadly the exception should be interpreted – it allows

hunters to carry to carry firearms into federal buildings incident to hunting. Ms. REDACTED’s

30 The three exceptions to the statute’s ban on firearms and dangerous weapons in federal facilities are:

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law; (2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or (3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

18 U.S.C. §930(d).

30

kirpan is far less dangerous than a firearm. Surely if a hunter is allowed to carry a firearm into

the Leland Building for the purpose of sport, then Ms. REDACTED should have been allowed to

carry her blunted kirpan into the building for its purpose as a religiously mandated article of

faith.

3. The Agency’s Refusal to Read the Statute in Full Is Further Evidence that its Articulated Reason is Pretext for Discrimination

As aforementioned, the IRS (nor FPS) made any attempt to determine whether Ms.

REDACTED’s kirpan qualified as a “dangerous weapon” under 18 U.S.C. §930 by actually

inspecting it. Moreover, assuming arguendo that it did qualify, the agency made no attempt to

consider whether it was exempted under subsection (d)(3), the statute’s exception allowing

dangerous weapons into federal facilities incident to a lawful purpose. In other words, the IRS

failed – and, indeed, continues to fail – to read statute as a whole. It has refused to consider

whether the statute’s rather significant exemptions applied in this circumstance. Instead, the IRS

bullishly makes the same argument that the portion representative of a “blade” on Ms.

REDACTED’s is three inches and therefore longer than the 2.5 inch maximum the statute

allows for a blade. In addition, the IRS refuses to acknowledge that the kirpan’s so-called

“blade” is blunt. This may be because no one at the IRS has ever inspected it.

VII. MS. REDACTED MEETS HER BURDEN TO OVERCOME SUMMARY JUDGMENT FOR HER TITLE VII RELIGIOUS ACCOMMODATION CLAIM

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against an employee on the basis of religion unless the employer “shows that it cannot

‘reasonably accommodate’ the employee’s religious needs without ‘undue hardship on the

conduct of the employer’s business.’” Ansonia Board of Education v. Philbrook, 479 U.S. 60,

63 (1986) (citing 42 U.S.C. § 2000e(j)). Title VII’s definition of religion includes “all aspects of

religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j).

31

A. Ms. REDACTED Can Establish a Prima Facie Case of Discrimination

The U.S. Supreme Court has established a three-part framework to analyze claims of

religious discrimination under Title VII. First, the employee must establish a prima facie case of

discrimination by showing: (1) he or she has a bona fide religious belief that conflicts with an

employment requirement; (2) he or she has informed the employer of this belief; (3) he or she

was subject to an adverse employment action for failure to comply with the conflicting

employment requirement. See Philbrook, 479 U.S. at 65-66.

Ms. REDACTED easily establishes a prima facie case of religious discrimination by the

IRS. First, she has a bona fide religious belief that conflicts with an employment requirement.

Specifically, the Sikh religion mandates that she wear her kirpan, an article of faith, on her

person at all times. Pursuant to her faith, Ms. REDACTED took amrit (was formally initiated to

Sikhism) on approximately April 14, 2005. Ex. 1, REDACTED Dep. at 78. Since then, she has

maintained all five mandated Sikh articles of faith, including the kirpan. Id. at 85 – 90. To Ms.

REDACTED, her kirpan is a reminder to be courageous and uphold justice. Id. at 88. She

sincerely believes that she would not follow the mandates of her Sikh faith if she did not carry

her kirpan with her to the workplace. See Ex. 1, REDACTED Dep. at 85, 89, 91. Ms.

REDACTED’s religious belief and practice of wearing a kirpan at all times conflicts with an

employment practice. Her former employer, the IRS, alleges that Ms. REDACTED’s ability to

bear her kirpan into the Leland Building conflicted with federal law, 28 U.S.C. §930, which bans

dangerous weapons in federal buildings.

Second, Ms. REDACTED informed her employer, the IRS, about her religious belief.

The IRS concedes this fact, stating that “[o]n April 19, 2005, Complainant submitted a written

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request for religious accommodation, namely that she be allowed to report to the federal building

wearing her kirpan without modifications.” IRS Motion at 15.

Third, Ms. REDACTED was subject to an adverse employment action for failure to

comply with the conflicting employment requirement. Indeed, as discussed in section VI (A)

infra, the IRS subjected the Complainant to three separate adverse employment actions:

i) In mid-April of 2004 after the agency learned that Ms. REDACTED kept a kirpan as

mandated by her religion, the agency sent her home and barred her from her workplace with her

kirpan;

ii) On January 30, 2005 after Ms. REDACTED refused to change her religious beliefs and

modify her kirpan as the IRS had mandated, the agency barred her from reporting to work and

thereafter deemed her AWOL (absent without leave); and

iii) On July 11, 2006 when the agency terminated Ms. REDACTED because she allegedly: 1)

was AWOL for 12 weeks, and 2) reported to work at Leland Building with her kirpan on March

9, 2006 to return certain files as requested by her supervisor.

B. The IRS Cannot Demonstrate that Granting Mr. REDACTED’s Religious Accommodation Request Would Result in Undue Hardship

Once the employee has established a prima facie case of religious discrimination, the

burden shifts to the employer to prove either that it reasonably accommodated the plaintiff or

that it was unable to do so without “undue hardship.” Tiano v. Dillard Dep’t Stores, Inc., 139

F.3d 679, 681 (9th Cir. 1998). The term “undue hardship” is not specifically defined in the

religious accommodation provisions of Title VII. The U.S. Supreme Court has determined that

an accommodation causes “undue hardship” whenever that accommodation results in “more than

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a de minimus cost” to the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, n.

9; Philbrook, 479 U.S. at 67.

1. The IRS Did Not Provide Ms. REDACTED with a Reasonable Accommodation

The U.S. Supreme Court, in Philbrook, held that “an employer has met its obligation

under §701(j) when it demonstrates that it offered a reasonable accommodation to the

employee.” 479 U.S. at 69. Here, the IRS did not provide Ms. REDACTED with reasonable

accommodation; indeed, it did not provide her with any form of accommodation in response to

her request to wear her kirpan to work. The IRS proffers its attempt to reasonably accommodate

Ms. REDACTED as a brief electronic mail message that Mr. Narvaez sent Ms. REDACTED

June 27, 2005 with a list of questions asking if she would modify various aspects of her kirpan.

See Ex. 6. The full text of the e-mail is:

Good Morning,Kawaljeet as discussed this morning would you answer the following questions:

6. Would you consider wearing a shorter blade on the Kirpan of less than 2 ½ inches?

7. Would you consider wearing dulled [sic] blade?8. Would you consider a dulled blade sewn in it’s sheath?9. Would you consider wearing a “symbolic kirpan” encased in plastic or lucite?10. Would you consider leaving the kirpan in her [sic] car or at home while in a

Federal facility?

Id. The plain language of Mr. Narvaez’s e-mail indicates that the message simply was an

attempt to discuss modification of the complainant’s kirpan, and not actual accommodation of

her kirpan in the workplace. See Ex. 1, (pictures of Kawaljeet K. REDACTED’s kirpan); Ex. 3,

REDACTED Decl. at ¶ 3. The IRS simply never made any offer of accommodation. Indeed,

the Agency admits as much by stating in its Motion that “[a]ny offer that required [Ms.

REDACTED] to modify the kirpan was not an accommodation in her mind.” Agency’s Motion

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at 8. This statement is deceptively fallacious in that it implies that the agency “offered” her an

accommodation that did not require her to modify her kirpan. In fact, all that the agency ever

“offered” Ms. REDACTED were requests to modify her kirpan, and not accommodation of her

article of faith. The Agency’s purported “offer” of reasonable accommodation is, therefore,

wholly specious.

On June 30, 2005, Ms. REDACTED through her counsel responded to the e-mail

message explaining why four of the five requests to modify her kirpan violated her religious

beliefs. See I.F., tab 4 at 65-66. The response stated:

Question One: Would you consider wearing a shorter blade on the Kirpan of less than 2 ½ inches?

Answer: Ms. REDACTED’s kirpan is three inches long. It is already as small as it can be to meet what her conscious tells her are her religious mandates. I would also note that this kirpan is already smaller than what she would normally wear in consideration of the IRS concerns about her kirpan.

Please also keep in mind that what you call the “blade” of Ms. REDACTED’s kirpan is dulled. I am not sure that it could be properly called a blade in the conventional sense of the term.

Question Two: Would you consider wearing dulled blade?

Answer: As stated above, Ms. REDACTED’s kirpan is dulled. It is not remotely as capable of cutting as a conventional box cutter, scissor blade, staple [sic], or actual knife.

Question Three: Would you consider a dulled blade sewn in it's sheath?

Answer: Wearing a kirpan sewn into its sheath would clearly violate Ms. REDACTED’s religious mandates. She could not wear any kirpan sewn into its sheath.

Question Four: Would you consider wearing a "symbolic kirpan" encased in plastic or lucite?

35

Answer: Wearing a kirpan encased in plastic or lucite would violate Ms. REDACTED’s religious mandates. She could not encase her kirpan in plastic or lucite.

Question Five: Would you consider leaving the kirpan in her car or at home while in a Federal facility?

Answer: Leaving her kirpan in her car or at home would clearly violate Ms. REDACTED’s religious mandates. She could not leave her kirpan at home or in her car.

Id., tab 4 at 65 – 66. Ms. REDACTED’s testimony is consistent with the responses provided by

her attorney. See Ex. 1, REDACTED Dep. at 106 – 109, 116 – 120.

The IRS notes that it is not required to provide Ms. REDACTED the accommodation of

her choice. IRS Motion at 18 – 19. This is true; however, the agency has a statutory duty to at

least offer Ms. REDACTED a reasonable accommodation of her specific religious belief or

practice (see 42 U.S.C. § 2000e(j)) – which, as discussed infra, never happened. The IRS also

argues ad nauseum that Ms. REDACTED could cite to no religious authority in rejecting its

specific requests for modification of her kirpan. Whether religious authority supports a

complainant’s sincerely held religious belief is completely irrelevant to the EEOC’s inquiry. See

29 CFR 1605.1 (“[t]he fact that no religious group espouses such beliefs or the fact that the

religious group to which the individual professes to belong may not accept such belief will not

determine whether the belief is a religious belief of the employee”).

The IRS’ failure to offer Ms. REDACTED a reasonable accommodation (instead

demanding in an e-mail message that she modify her kirpan), is ironic given that Ms.

REDACTED’s workplace was replete with objects that were more dangerous than her kirpan – a

fact which the IRS does not dispute. See IRS Motion at 13 – 14. The IRS attempts to distinguish

these objects – scissors, letter openers, and kitchen knives that are sharper and longer than the

section representative of a “blade” on Ms. REDACTED’s kirpan, as well as box cutters – by

36

stating that the Agency supplied and approved them for legitimate business use. See id.

Whether the Agency did so makes absolutely no practical difference in this case. The objects are

freely accessible in the workplace to be used for legitimate or non-legitimate business purposes

as deemed by the IRS employees who use them.

The facts in this case are analogous to early sex discrimination cases filed under Title

VII, where female plaintiffs were subject to adverse employment actions despite no practical

factual differences between them and their similarly situated male counterparts. For example, in

Doyle v. Buffalo Sidewalk Café, Inc., a restaurant refused to hire a man with long hair to be a

busboy for purported health reasons, even though women with long hair worked in the

restaurant. 333 N.Y.S.2d 534 (1972). See also Phillips v. Martin-Marrietta, 400 U.S. 542 (1971)

(genuine issue of material fact existed as to whether family obligations of women having

preschool age children were demonstrably more relevant to job performance for a woman than a

man in a case where an airline refused to accept an application for a flight attendant position

from a woman because she had pre-school age children; the airline however accepted

applications from men with pre-school age children); Sprogis v. United AirLines, (finding that

employer's no-marriage rule for female flight attendants discriminated on the basis of sex) 444

F.2d 1194 (1971). In all cases, the courts found that no practical difference existed to support

differential treatment, and that the employers had acted discriminatorily.

In addition, the IRS argues that employees do not bring the sharper objects into the

workplace, nor wear them on their person. See IRS Motion at 13 – 14. Ms. REDACTED’s

kirpan is far safer than the cited objects, as it is both dulled and tightly sheathed. See I.F., tab 4

at 65 – 66; REDACTED Decl. at ¶ 3. This fact is not true of the scissors, letter openers, and

kitchen knives in the Leland Building. Additionally, the Agency continues to hang its hook on

37

the allegation that Ms. REDACTED’s kirpan is a “dangerous weapon” under 18 U.S.C. § 930.

Complainant refutes this assertion for the reasons discussed infra in section VI. At minimum,

genuine issues of material fact exist as to whether Ms. REDACTED’s kirpan in fact meets the

statutory definition of a “dangerous weapon.”

2. Ms. REDACTED’s Requested Accommodation was Reasonable

The IRS argues that to have offered Ms. REDACTED accommodation of her kirpan was

not reasonable. The Agency argues that Ms. REDACTED’s requested accommodation to wear

her kirpan to work was unreasonable because she purportedly “previously made concessions in

her religious practices in order to enable her to better meet her non-religious needs.” IRS Motion

at 18.

The Agency’s discussion is a complete red herring, simply a backhanded attempt to

discredit the sincerity of Ms. REDACTED’s religious belief to wear her kirpan. The only issue

in this case is whether the IRS discriminatorily disallowed Ms. REDACTED from wearing her

kirpan into her workplace. The sum and substance of her other beliefs are not at issue, and she

resoundingly disputes the Agency’s characterizations of her as conceding any of her religious

beliefs. The fact is that Ms. REDACTED has kept all five mandated articles of faith since she

was baptized as a Sikh. Ex. 1, REDACTED Dep. at 85, 89, 91. She wears her kirpan at all

times, including in the shower and to sleep. Id. at 94 – 95. She has removed her kirpan only

once, shortly after she took amrit, in order to board a plane to fly home from Washington, DC

because she was in an airport, had to make a snap religious decision, and had no spiritual

authority to consult when she was in the airport. Id. at 95.

Indeed, she has worn a kirpan from July of 2006 to the present without incident in her

position as a Senior Consultant – Tax at Sirius Solutions. See id. at ¶ 11. This simple fact – that

38

Ms. REDACTED currently wears her kirpan to work without incident – is proof positive that

her requested accommodation was reasonable. It is wholly ironic that the federal government, an

entity that exists to advance the public’s interests, disallowed an employee from wearing her

religiously mandated article of faith in its workplace, but a private employer has no similar

qualms.

3. Genuine Issues of Material Fact Exist as to Whether the IRS Would Have Faced Undue Hardship had it Provided Ms. REDACTED with Reasonable Accommodation

As the Honorable Justice Marshall pointed out in the Hardison dissent, “[N]ot all

accommodations are costly[.]” 432 U.S. at 90. Here, there was simply is no cost or difficulty

the Agency would have incurred by granting Ms. REDACTED the accommodation she had

requested – that, consistent with her religious mandate, she wear her kirpan to work everyday.

First, there was no financial cost associated with Ms. REDACTED wearing her kirpan to

work; at least, the IRS has proffered none. Second, absolutely no security risk existed in

association with her kirpan. As aforementioned, the three-inch section representative of a

“blade” was blunted and sheathed. See I.F., tab 4 at 65 – 66; Ex. 3, REDACTED Decl. at ¶ 3.

Moreover, Ms. REDACTED wore her kirpan to the Leland Building for approximately four

days without incident. See Ex. 1, REDACTED Dep. at 96 – 98, 133 – 134; I.F., tab 4 at. 35. No

one got cut or injured. Ms. REDACTED just went about her business as a federal employee.

Most importantly, on the days that she wore her kirpan to the Leland Building (i.e., for at least

three days in mid-April of 2005 and again on March 9, 2006) she consistently was able to pass

through federal security – which included walking through metal detector – while wearing her

kirpan and gain entrance.See Ex. 1, REDACTED Dep. at 96 – 98, 133 – 134; I.F., tab 4 at. 35.

In fact, she usually went through security twice per day, once in the morning and once after

39

returning from lunch. See Ex. 3, REDACTED Decl. at ¶ 8. If, as the IRS argues, her kirpan

was so dangerous, then why did it go undetected through security? Indeed, the fact that Ms.

REDACTED’s kirpan poses zero risk in the workplace is exemplified by the fact that she wears

it to work everyday without incident in her present position as a Senior Consultant – Tax at

Sirius Solutions. See id. at ¶ 11.

The Agency’s proffered security risk of Ms. REDACTED’s kirpan in the workplace is

wholly speculative. Courts continue to reject reliance on speculative harm to show undue

hardship. See, e.g., Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978)

(rejecting the argument that an accommodation “would open the gate to excusing vast numbers

of persons who claimed to share Burns’ religious beliefs, thence resulting in a greater than de

minimus burden); EEOC v. Alliant Techsystems, Inc., 78 FEP 37, 42 (W.D. Va. 1998) (undue

hardship not met by argument of mass diversion of union dues to charity).

Third, Ms. REDACTED’s requested accommodation would not have violated federal

law – her kirpan is not a dangerous weapon under 18 U.S.C. §930, as discussed extensively infra

in section VI. It is important to note that the Agency misstates the facts to the Court in asserting

that “the statute has no exception for religious swords or weapons.” IRS Motion at 20. In fact,

as previously discussed, the statute provides an exception for “the lawful carrying of firearms or

other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.” 18

U.S.C. §930(d)(3) (emphasis added). Surely a religiously-mandated article of faith has a lawful

purpose that is consistent with a secular exemption such as hunting or other sport such that it can

be carried into a federal building. Moreover, Ms. REDACTED’s kirpan was blunted, depriving

it of being “readily capable of, causing death or serious bodily injury...” under 18 U.S.C. §

930(g)(2).

40

The agency cites to Baltgavis v. Newport News Shipbuilding, Inc., a District Court case,

to argue that it is not liable under Title VII because accommodation would have required it to

violate federal law. 132 F.Supp.2d 414 (2001). This case is inapplicable because, at minimum,

whether Ms. REDACTED’s kirpan qualifies as a dangerous weapon under 18 U.S.C. § 930 is a

genuine issue of material fact making summary judgment wholly inappropriate.

VIII. CONCLUSION

In their dissent to the Hardison majority opinion, the Honorable Justices Thurgood

Marshall and William Brennan wrote:

As a question of social policy [it is] deeply troubling for a society to compel adherents of minority religions to make the cruel choice of surrendering their religion or their job.

Hardison, 432 U.S. at 87. In reference to Title VII, requiring an “employee . . . to give up either

their religious practice or the job . . . makes a mockery of the statute.” Id., at 89. For the reasons

discussed infra, particularly that

Genuine issues of material fact exist as to whether Ms. REDACTED’s kirpan is a

“dangerous weapon” under 18 U.S.C. § 930(g)(2);

The fact that neither the IRS nor the FPS ever inspected Ms. REDACTED’s kirpan prior

to taking multiple adverse employment actions is evidence that the agency’s articulated

reason is pretext for discrimination; and

IRS employees had access to numerous objects in the Leland Building that were far more

dangerous than Ms. REDACTED’s kirpan;

Complainant Kawaljeet Kaur REDACTED respectfully requests that the Court deny the

Agency’s Motion for Decision Without a Hearing and Dismissal.

Respectfully submitted this 4th day of June, 2007.

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____________________________Amardeep Singh Bhalla, Esq.The Sikh Coalition396 Broadway, Suite 701New York, New York 10013(212) 655-3095 (o)(212) 208-4611 (f)

Attorney for Complainant,Kawaljeet Kaur REDACTED

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