Case: 12-20214   Document: 00512439042     Page: 1   Date Filed: 11/13/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                             November 13, 2013

                                 No. 12-20214                    Lyle W. Cayce
                                                                      Clerk

KAWALJEET K. TAGORE,

                                           Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; FEDERAL PROTECTIVE SERVICE; UNITED
STATES OF AMERICA DEPARTMENT OF THE TREASURY - INTERNAL
REVENUE SERVICE,

                                           Defendants-Appellees


                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Kawaljeet Tagore (“Tagore”) was refused permission to wear a kirpan (a
Sikh ceremonial sword) with a blade long enough to be considered a “dangerous
weapon” under federal law inside the federal building where she worked for the
Internal Revenue Service (“IRS”). She lost her job by failing to comply with the
applicable regulations or receive an appropriate waiver. Tagore sued the United
States and various federal agencies and employees, alleging violations of her
religious rights protected by Title VII, 42 U.S.C. §§ 2000e et seq., and the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb et seq. The
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district court granted summary judgment in favor of the government defendants
on both claims. We affirm summary judgment on Tagore’s Title VII claim. We
reverse and remand her RFRA claim for further development of evidence
concerning the government’s compelling interest in enforcing against this
plaintiff the statutory ban on weapons with blades exceeding 2.5 inches.
18 U.S.C. § 930(a), (g)(2).
                              I. BACKGROUND
      In 2004, Tagore was hired as a revenue agent for the IRS in the George
“Mickey” Leland federal building (“Leland building”) in Houston, Texas. In April
2005, she participated in an Amrit Sanskar ceremony, pursuant to which she
was formally initiated into the Sikh faith. Following the ceremony, Tagore
began wearing the five articles of the Sikh faith, including an approximately 9-
inch kirpan, a Sikh article that “resembles a knife or sword but, unlike those
objects, often has an edge that is curved or blunted.”
      On her first day back at work after taking Amrit, Tagore passed through
security without setting off the metal detector and proceeded to her office. After
Tagore informed her supervisor, Nieves Narvaez (“Narvaez”), that she was
wearing her kirpan, Narvaez instructed her to request a security waiver. He
told Tagore to explain that she had recently been baptized into Sikhism and
needed to carry the five articles of faith, including the kirpan, on her person at
all times. Thereafter, Tagore began wearing a shorter kirpan with a blade
approximately 3 inches long in hopes that it would alleviate the security
concerns.
      Two days later, Tagore provided Narvaez a letter from Amardeep Singh
Bhalla (“Bhalla”), Legal Director for the Sikh Coalition, which explained that
wearing the kirpan is a mandatory article of the Sikh faith. The letter asserted
that kirpans are less dangerous than scissors, box cutters, or other objects that
are regularly brought into federal buildings.      Narvaez forwarded Tagore’s

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request for a security waiver to Micralyn Baker-Jones (“Baker-Jones”), an IRS
labor specialist. After discussing the issue with Baker-Jones, Narvaez placed
Tagore on an interim Flexiplace arrangement so she could work at home until
the matter was resolved.
      The Federal Protective Service (“FPS”) advised Baker-Jones that18 U.S.C.
§ 930(a) proscribes the knowing possession of “a firearm or other dangerous
weapon in a Federal facility,” and that the term “dangerous weapon” is defined
by § 930(g)(2) 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 2 ½ inches in length.” FPS determined that Tagore’s kirpan
qualified as a “dangerous weapon” due to its 3-inch blade. The FPS also decided
that Tagore’s kirpan did not fall within any of the statutory exemptions. See
§ 930(d)(1)–(3) (providing exemptions for (1) government officers acting in
“lawful performance of official duties,” (2) federal and military officials, “if such
possession is authorized by law,” and (3) other persons, if possession is “incident
to hunting or other lawful purposes”). The FPS denied Tagore’s request for a
security waiver.
      The IRS then convened a working group to determine whether Tagore’s
religious exercise of wearing a kirpan could be accommodated in a way that
would not violate federal law. To assist in that process, Narvaez emailed Tagore
to inquire whether she would consider (1) wearing a kirpan with a blade shorter
than 2.5 inches, (2) wearing a dulled blade, (3) wearing a dulled blade sewn in
its sheath, (4) wearing a ‘symbolic kirpan’ encased in plastic or lucite, or
(5) leaving her kirpan at home or in her car while she was in a federal building.
Sikh Coalition attorney Bhalla responded on Tagore’s behalf. He noted that
Tagore’s kirpan already contained a dull blade and that the remaining
accommodations would violate her conscience or religious mandates.

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       The IRS working group considered whether Tagore could work from home
or be reassigned to a federal building without on-site security. Both ideas were
rejected, however, because § 930(a) applies to nonsecure federal buildings and
a permanent Flexiplace arrangement was not compatible with Tagore’s job
responsibilities. Seeing no other feasible option, the IRS directed Tagore to
report to work at the Leland building without her kirpan by January 30, 2006,
or be charged Absent Without Leave (“AWOL”).                   On January 24, Bhalla
responded that “[i]n order to accommodate the IRS, the ‘bladed’ part of Ms.
Tagore’s kirpan is now three and one half inches long” and expressed that
Tagore “sincerely believe[d] that any further reduction in the size of her kirpan
. . . would violate[] her sincerely held Sikh religious beliefs.” When Tagore
attempted to report to work at the Leland building with her kirpan, she was
denied entry. The IRS declared her AWOL and stopped paying her salary. In
March 2006, after an unsuccessful mediation, Tagore filed a Title VII charge
with the United States Treasury Department. She alleged that the IRS had
discriminated against her on the basis of religion by not allowing her to enter the
Leland building while wearing her kirpan and declaring her AWOL. On May 4,
the IRS issued Tagore a “Notice of Proposed Adverse Action,” informing her of
its intent to terminate her employment. She was formally terminated on
July 11, 2006.1
       Tagore then filed suit in 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 of Tagore’s


       1
           Tagore exhausted internal administrative EEOC remedies.
       2
        The Complaint names as defendants the United States; four federal agencies (the
Department of the Treasury (“DOT”), Department of Homeland Security (“DHS”), FPS, and
IRS); two cabinet secretaries; and several federal employees (William A. Carmody, III, David
Hiebert, Christina Navarete-Wasson, Sergio Arellano, James K. Ellis, Nieves Narvaez, and
25 unidentified persons referred to as the “Doe defendants”).

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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 of Homeland Security (“DHS”), the DHS Secretary,
William Carmody III, David Hiebert, and 25 unidentified defendants. After
discovery, the parties filed cross-motions for summary judgment. The district
court, writing comprehensive opinions, granted summary judgment in favor of
the defendants on both claims, denied Tagore’s motion for reconsideration, and
dismissed the case with prejudice. Tagore timely appealed.
                               STANDARD OF REVIEW
       We review a district court’s summary judgment de novo, applying the same
standard as the district court. Moss v. BMC Software, Inc., 

, 922
(5th Cir. 2010). Summary judgment is warranted if, viewing all evidence in the
light most favorable to the non-moving party, the record demonstrates that there
is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. 

R. Civ. P. 56). A fact is material
if it “might affect the outcome of the suit under the governing law,” and a dispute
is genuine if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

, 248
(1986).




       3
        The district court dismissed Tagore’s 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 of these
dismissals in this appeal.
       4
           Lew replaced Timothy Geithner during the pendency of this appeal.

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                                  DISCUSSION
1.    Sincerely held religious belief.
      On appeal, Tagore asserts that her evidence creates a genuine issue of
material fact concerning the sincerity of her religious practice of wearing a
kirpan with a blade longer than 2.5 inches. The sincerity of a plaintiff’s belief
in a particular religious practice is an essential part of the plaintiff’s prima facie
case under either Title VII or RFRA. See Weber v. Roadway Express, Inc.,

, 273 (5th Cir. 2000)(Title VII); Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 

, 428, 

(2006)(RFRA).
After reviewing hundreds of pages of deposition testimony and exhibits, the
district court concluded that Tagore did not create a triable issue of fact that her
sincere religious beliefs require her to wear a kirpan with a 3-inch, rather than
the statutorily permitted 2.5-inch, blade. With due respect to the able court,
this is slicing too thin.
      This court recently explored the threshold inquiry into a person’s beliefs
when discussing a prisoner’s claim under the related Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).          Moussazadeh v. Tex. Dept. of
Criminal Justice, 

, 790-92 (5th Cir. 2012). Briefly, each case turns
on its particular facts. 

The specific religious practice must be
examined rather than the general scope of applicable religious tenets, and the
plaintiff’s “sincerity” in espousing that practice is largely a matter of individual
credibility. 

In fact, the sincerity of a plaintiff’s engagement in a
particular religious practice is rarely challenged. 

As Moussazadeh
explains, “[t]hough the sincerity inquiry is important, it must be handled with
a light touch, or ‘judicial shyness.’ ” 

(quoting A.A. ex rel. Betenbaugh
v. Needville Indep. Sch. Dist., 

, 262 (5th Cir. 2010)). “[E]xamin[ing]
religious convictions any more deeply would stray into the realm of religious
inquiry, an area into which we are forbidden to tread.” 

Both

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before and following Moussazadeh,        claims of sincere religious belief in a
particular practice have been accepted on little more than the plaintiff’s credible
assertions. See, e.g., Garner v. Kennedy, 

, 241 (5th Cir. 2013)
(Muslim prisoner's desire to wear a beard not challenged by TDCJ); 

(Native American schoolboy wearing long hair a sincere
religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal
Justice, 

(5th Cir. 2008) (Odin worshiper’s religious need for
runestones and rune literature not challenged by TDCJ).
      There was ample evidence to create a genuine issue of material fact on the
sincerity of Tagore’s practice of wearing a kirpan with a 3-inch blade. The
court’s contrary decision focused on close questioning of Tagore in her deposition,
which exhibited some ambiguity about whether her sincere beliefs require the
kirpan blade, or the entire dagger, to exceed 3 inches.        Cf. 

(“stray[ing] from the path of perfect adherence” does not
eviscerate claim of sincerity). She adduced voluminous evidence from the Sikh
community, however, that kirpans are mandated to be worn by the religion’s
adherents and although there are no detailed regulations for the kirpans’
appearance, most Sikhs wear kirpans with blades longer than 2.5 inches. As the
government acknowledged during the pendency of this appeal:
      There is no prescribed blade length for the Kirpan; its size varies
      based on personal choice. The majority of Kirpan blades range in
      size from 3 to 6 inches, but blades may be as small as 2 inches. . . .
      Kirpan are always sheathed. . . . [S]ome Sikhs . . . believe a Kirpan
      must be worn at all times . . . .

Federal Protective Service, Policy Directive 15.9.3.1, Prohibited Items Program,
Attachment 5 (2012) [hereafter, “Policy Statement”].        Tagore has worn her
kirpan 24 hours a day after taking Amrit, with one exception when she travelled
in an airplane. Tagore was willing to sacrifice her government employment for
the sake of wearing a religiously significant symbolic kirpan. Tagore’s actions,

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the    independent     evidence   of   Sikh practices,   and    the   government's
acknowledgement create a genuine issue of material fact as to her sincere belief
in wearing a 3-inch bladed kirpan.
2.     Title VII.
       Title VII prohibits an employer from discriminating against an employee
on the basis of her religion, unless the employer is unable to reasonably
accommodate the employee’s religious exercise without undue hardship to its
business. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(j). To establish a prima facie case
of religious discrimination under Title VII, the plaintiff must present evidence
that (1) she held a bona fide religious belief, (2) her belief conflicted with a
requirement of her employment, (3) her employer was informed of her belief, and
(4) she suffered an adverse employment action for failing to comply with the
conflicting employment requirement. Bruff v. N. Miss. Health Servs., Inc.,

, 499 n.9 (5th Cir. 2001).
       Assuming Tagore held a sincere religious belief in wearing a kirpan with
a blade exceeding 2.5 inches, a prima facie case of Title VII religious
discrimination exists because she lost her job as a result of her religious practice.
The district court found this claim inadequate as a matter of law, however, on
two additional grounds: the DHS and FPS, not the IRS, control decisions
concerning federal building security and the application of Section 930(a); and
the IRS proved the affirmative defense that it could not accommodate Tagore’s
wearing of the kirpan without undue hardship. Both of these holdings must be
sustained. First, because the IRS is not authorized to determine the security
requirements of federal buildings, it cannot be deemed legally responsible for
discriminating against Tagore. Requiring IRS to override the DHS/FPS would
place the revenue agency in the position of violating federal law concerning the
introduction of “dangerous weapons” into federal buildings. An employer need
not accommodate an employee’s religous practice by violating other laws. See


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Seaworth v. Pearson, 

, 1057 (8th Cir. 2000) (defendant need not
accommodate plaintiff’s religious beliefs when doing so would require defendant
to violate federal law, which creates an undue hardship); Sutton v. Providence
St. Joseph Med. Ctr., 

, 830-31 (9th Cir. 1999) (“[C]ourts agree that
an employer is not liable under Title VII when accommodating an employee’s
religious beliefs would require the employer to violate federal or state law.”);
United States v. Bd. of Educ., 

, 890-91 (3d Cir. 1990) (holding that
allowing a Muslim teacher to wear religious garb while teaching, thereby
violating a state criminal statute, would impose undue hardship on defendant
school district).
      Even if these defenses were not definitive,the FPS and DHS demonstrated
that the accommodations that Tagore proposed to allow her to continue to wear
her kirpan amount to more than “de minimis” costs on the employer. Title VII
does not require religious accommodations that impose more than “de minimis”
costs on an employer. Trans World Airlines, Inc. v. Hardison, 

, 84,

(1977); 

. In part, this is because costly
accommodations would place the religious practitioner in a more favorable
position, at the employer’s expense, than her coworkers. Further, more than de
minimis adjustments could require coworkers unfairly to perform extra work to
accommodate the plaintiff. Tagore suggested three potential accommodations:
wearing a dulled kirpan blade; working from her home; or working at other
federal buildings that might have fewer security requirements. As the district
court held, none of these is a de minimus measure. Security officers cannot be
asked to ascertain whether a blade is sharp or dull in order to determine
whether it is a “dangerous weapon” within the purview of Section 930(a); this
inquiry would be time-consuming, impractical and detrimental to the broad
vigilance required at the entrance to public offices. The IRS also determined,
and Tagore does not seriously challenge, that she could not effectively perform

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her duties while working from home. Moreover, the option of her working from
other federal facilities is unavailable because Section 930(a) is an
across-the-board prohibition of dangerous weapons; it is not facility-specific. For
these reasons, the IRS’s failure to accommodate Tagore did not violate Title VII
as a matter of law.
3.     RFRA.
       Assuming, again, that Tagore succeeds in establishing a sincerely held
religious belief that mandates her wearing a 3-inch kirpan blade, the remaining
predicate to a prima facie RFRA case is whether the FPS’s enforcement of
Section 930(a) substantially burdened her religious practice. See 

, 126 S. Ct. at 1216. This is not a serious hurdle: she gave up her
job rather than wear a shorter-bladed kirpan, cf. Sherbert v. Verner, 

, 403-06, 

, 

(1963), and she risked violating
federal law when she entered the Leland building while wearing it.
18 U.S.C. 930(a)(imposing a fine and up to 1 year imprisonment). Once a prima
facie case is established, the government must show a compelling interest in
enforcing that provision and that its means are the least restrictive to achieve
its objectives. 42 U.S.C. § 2000bb-1(a)-(b)(1) and (2); 

.
RFRA thus applies strict scrutiny to government regulations that substantially
burden a person’s religious exercise.
       Surely, the government has a compelling interest in protecting federal
buildings and the people in and around them, and Congress’s choice in defining
“dangerous weapons” that cannot be introduced into the buildings to include
bladed instruments exceeding 2.5 inches must be given significant deference.
The Supreme Court emphasized in Gonzales, however, that RFRA requires the
government to explain how applying the statutory burden “to the person” whose
sincere exercise of religion is being seriously impaired furthers the compelling
governmental 

.      A “categorical approach” is

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insufficient, particularly if, as here, the statute includes exceptions to the
prohibition,5 cf. 

and the government must produce evidence
justifying its specific conclusion. The district court held that the government
carried its burden as a matter of law with affidavit testimony that building
security officers must apply Section 930(a) uniformly, consistently and
rigorously;       authorizing individualized case-by-case determinations would
undermine security.
           The district court also held that the need for uniformity of application
satisfied the least restrictive means test. Although the Supreme Court did not
reach the less restrictive means test in Gonzales, it is settled that the
government’s is to explain “why alternative policies would be unfeasible, or why
they would be less effective in maintaining institutional security.” Spratt v. R.I.
Dept. of Corr., 

, 41 (1st Cir. 2007). The district court rejected
Tagore’s citations to case law and instances in which Sikhs wearing kirpans
have been granted permission to 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’s argument that she is covered by the exception in Section 930(g)
that allows the bearing of “dangerous weapons” for “other lawful purposes.” In
this regard, it accepted the government’s argument that this exception only
extends to people like construction workers whose job-related duties require
tools that might otherwise violate the statute.
       We recite very briefly the district court’s reasoning as preface to the point
that it has been practically undermined by FPS’s decision to acknowledge

       5
         As has been noted, 18 U.S.C. § 930(a) does not apply to law enforcement officers,
military personnel, and those lawfully carrying weapons incident to hunting or other lawful
purposes. 18 U.S.C. § 930(d). We agree with the court’s determination that Tagore’s kirpan
is not permitted under the exceptions to Section 930(a) for law enforcement officers, military
personnel, and hunters. We express no opinion as to whether Tagore’s kirpan would be
permitted under the subsection for “other lawful purposes.”

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kirpans as ceremonial weapons that may be allowed in a federal building either
by exception or exemption from the statute. The December 2012 FPS Policy
Statement, earlier noted, “establishes FPS policy for applying security force
countermeasures to mitigate prohibited item entry at Federal properties.”
Policy Statement at 1. The statement repeatedly references processes that
“include[]   allowing    exceptions    and    exemptions      to   prohibited   items
for . . . religious exercise . . . or other purposes as necessary or required by law.”
Attachment 2 to the statement prescribes “Procedures for Exceptions and
Exemptions for Otherwise Prohibited Items,” Policy Statement at 5, one of which
is for “accommodations” under the Religious Freedom Restoration Act.
Attachment 5 describes “Accommodations for Sikh Articles of Faith,” and
instructs FPS officers that kirpans with blades longer than 2.5 inches require an
exception or exemption before being carried into a federal building. One must
ask, why refer to “accommodations” and append this attachment to a document
describing procedures for obtaining exceptions or exemptions if, as FPS contends
against Tagore, case-by-case determinations are impractical or inconsistent with
maintaining security? The fact that FPS promulgated this Policy Statement
after the case concluded in the district court does not prevent our taking judicial
notice of its implication for the difficult and fact-sensitive inquiry that must
accompany application of strict scrutiny under RFRA.
      Because the new policy contradicts the arguments previously advanced by
the government for denying Tagore an exception or exemption for the wearing
of her kirpan to the Leland building, the district court’s application of strict
scrutiny must be reversed and remanded for further analysis.
       In so doing, we emphasize that we express no opinion on the ultimate
application of strict scrutiny because the government should be allowed to offer
more evidence concerning its asserted need for uniform application of
Section 930(a) and the impact of the new Policy Statement on this case.


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Precisely because kirpans may be dangerous weapons in the wrong hands or
may fall into the hands of evildoers who are not Sikhs, there would seem to be
support for certain limitations, e.g. on blade length, security clearance status of
the bearer of the kirpan, the frequency of the bearer’s visits to a particular
federal facility, the degree or method of concealment, or degree of attachment to
the person’s body. All of these considerations, and more, may bear on the fact-
intensive nature of the RFRA strict scrutiny test. Despite the importance of
deferring to officials charged with maintaining domestic security, conclusional
affidavits will be insufficient to overcome the policies and procedures embodied
in RFRA.
                                CONCLUSION
       For the foregoing reasons, the judgment of the district court is reversed
in part and remanded in part; further proceedings are necessary to determine
as a matter of fact whether Tagore holds a sincere religious belief in wearing a
kirpan with a blade exceeding the federally prescribed maximum and, if so,
whether the government has proven that application of Section 930(a) to Tagore
furthers a compelling government interest with the least restrictive means.
      AFFIRMED IN PART; REVERSED IN PART; REMANDED IN PART.




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