Shaliehsabou v. Hebrew Home of Washington, 03-1314.

Citation363 F.3d 299
Decision Date02 April 2004
Docket NumberNo. 03-1314.,03-1314.
PartiesFerman SHALIEHSABOU, Plaintiff-Appellant, v. HEBREW HOME OF GREATER WASHINGTON, INCORPORATED, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Paul Frederick Newhouse, Towson, Maryland, for Appellant. Jeffrey

Jules Pargament, Piliero, Mazza & Pargament, Washington, D.C., for Appellee.

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WIDENER concurred. Judge LUTTIG wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

Ferman Shaliehsabou, a kosher supervisor, appeals the grant of summary judgment in favor of his former employer, the Hebrew Home of Greater Washington, in this action brought under the over-time provisions of the Fair Labor Standards Act. Because Shaliehsabou is employed in a ministerial role by a religiously affiliated employer and thus not entitled to overtime under the Act, we affirm the district court's grant of summary judgment.

I.

From 1992 until August 2000, Ferman Shaliehsabou, an Orthodox Jewish man, worked at the Hebrew Home of Greater Washington (the Hebrew Home) as a mashgiach.1 The term mashgiach is defined as "an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws." Random House Webster's Unabridged Dictionary 1181 (2d ed.1998). Shaliehsabou served as a part-time mashgiach from 1992 until 1994, when he was elevated to a full-time position. He continued in his position as a full-time mashgiach at the Hebrew Home until resigning from work in August 2000.

The Hebrew Home is a non-profit religious and charitable corporation whose mission, according to its By-Laws, is to serve "aged of the Jewish faith in accordance with the precepts of Jewish law and customs, including the observance of dietary laws." (J.A. at 101.) The Hebrew Home accepts persons of all faiths, but approximately 95% of its residents are Jewish. All members of its board of directors are Jewish. The Hebrew Home maintains a synagogue on its premises and holds twice-daily religious services conducted by an ordained rabbi, who serves as a full-time employee. Each resident's room contains a "mezuzah," defined as "a parchment scroll inscribed on one side with the Biblical passages Deut. 6:4-9 and 11:13-21 and on the other side with the word Shaddai (a name applied to God), inserted in a small case or tube ... and attached by some Jews to the doorpost of the home." Random House Webster's Unabridged Dictionary 1212 (2d ed.1998).

Consistent with its mission to serve the spiritual needs of its residents, the Hebrew Home abides by the "halakha." Halakha "is the overall term for Jewish law" and literally means "the way on which one goes." Rabbi Hayim Halevy Donin, To Be a Jew: A Guide to Jewish Observance in Contemporary Life 29 (1972). It is "the Jewish way for securing and perpetuating the Jewish way of life." Id. at 32. In accordance with this guiding precept, the Hebrew Home provides its residents kosher meals prepared in accordance with the Jewish dietary laws, which are collectively known as the "kashruth." Id. at 97. As part of the halakha, "[t]he Jewish dietary laws prescribe not merely a diet for the body but a diet for the soul as well, not so much a diet to maintain one's physical well being as a diet to maintain one's spiritual well-being." Id. at 98. In other words,

The faithful Jew observes the laws of kashrut [h] not because he has become endeared of its specific details nor because it provides him with pleasure nor because he considers them good for his health nor because the Bible offers him clear-cut reasons, but because he regards them as Divine commandments and yields his will before the will of the Divine and to the disciplines imposed by his faith.

Id. at 98.

To ensure that the food services department, operated by Sodexho Services (Sodexho), would prepare kosher meals, the Hebrew Home entered into an agreement with the Rabbinical Council of Greater Washington (the Vaad)2 whereby the Vaad would recommend mashgichim to serve in the Hebrew Home. Pursuant to the agreement, the Vaad was the "sole authority" for determining compliance with the kashruth, and any mashgiach "must be approved by the [Vaad] and chosen after [the Vaad's] consultation with the ... Hebrew Home." (J.A. at 51.) All "kitchen operations including food preparation and food service," had to be taken "under the supervision of the mashgiach." (J.A. at 51.) The agreement between the Hebrew Home and the Vaad did not reference any qualifications required of mashgichim. There was, however, "no secular health or safety rationale for the work performed by the [m]ashgichim." (J.A. at 122.)

Rabbi Kalman Winter, Director of the Vaad, explained the role of the mashgiach in a declaration made in connection with this case. According to Rabbi Winter, mashgichim are "supervisors" who "are qualified under Judaic law to supervise the preparation of food to ensure that it is kosher." (J.A. at 109.) Mashgichim, according to Rabbi Winter, "must have a knowledge of the basic laws of kashruth" and "must also be a Sabbath observer and be a fully observant Jew." (J.A. at 110.) Such persons "generally have obtained their knowledge of the laws of kashruth through experience and study at a `yeshiva.'"3 (J.A. at 111.) Moreover, according to Rabbi Winter, mashgichim "possess the authority to enforce the laws of kashruth and make on-the-spot decisions based on their knowledge and understanding of the situation at hand." (J.A. at 111.) Rabbi Winter stated that complying with kosher dietary laws "is an integral and essential part of Jewish identity." (J.A. at 109.)

Although the Vaad periodically recommended an appropriate wage for the mashgichim, the Hebrew Home retained responsibility for paying them. The Vaad did retain the ability to remove mashgichim from service at the Hebrew Home and also possessed the ability to take disciplinary action against an individual mashgiach. The Hebrew Home had concurrent power to discipline and fire mashgichim, but the Hebrew Home would only take such a disciplinary measure after consultation with the Vaad.

Shaliehsabou, as mentioned, has been a devout Orthodox Jew his entire life and began working at the Hebrew Home as a part-time mashgiach in 1992. Shaliehsabou attended yeshiva in Colorado and received a Bachelor of Talmudic Law from Ner Israel Rabbinical College in Baltimore. Shaliehsabou occasionally purchased and read books to further his understanding of Jewish dietary laws and testified that he is engaged in a lifelong learning of Jewish law and custom. He also recognized that failure to stop a violation of the kashruth by a kitchen worker was "a sin like any other sin." (S.A. at 21.) Shaliehsabou declared himself as "clergy" on his federal tax returns, and he also took a parsonage exemption from his salary. (J.A. at 129.)

Shaliehsabou's "basic responsibility [at the Hebrew Home] was to guard against any violations of Jewish dietary law." (J.A. at 115.) Pursuant to that end, Shaliehsabou's "primary duties" included "inspecting deliveries," "opening and closing the refrigerators to insure the integrity of the kosher status of the kitchen," "insuring that all meat and dairy products were stored and kept separate during food preparation," and "lighting all ovens and heating equipment in accordance with the requirements of Jewish law." (J.A. at 17.) Shaliehsabou would also cleanse kitchen utensils and other items if they became non-kosher. Shaliehsabou had the ability and the duty to instruct the kitchen staff on complying with the kashruth and to report any violations. He was "the liaison between the Home and the Vaad on matters of Jewish dietary law." (J.A. at 115.) Shaliehsabou was unsure who was his direct employer and was told by the general manager of Sodexho, "[w]ith a rabbi's questions, go to rabbinical, and for any other issues you have, just come to [food services]." (S.A. at 36.)

Shaliehsabou made decisions regarding the kitchen's compliance with the kashruth, but occasionally he would refer "difficult questions of Jewish law"4 to the Vaad. (J.A. at 115-116, 111.) The mashgichim, not the food services department, had "final say" over matters relating to the kosher preparation of food. (J.A. at 113.) When a mashgiach decided, for example, that unclean food needed to be discarded, it could not be provided to residents under any circumstances.

During Shaliehsabou's employment as a full-time mashgiach, he was paid for at least eighty hours of work each bi-weekly period. Shaliehsabou, like all employees, including salaried employees, was assigned an hourly rate of pay for the purpose of determining benefits. Although Shaliehsabou occasionally received additional hourly compensation for hours worked over eighty per bi-weekly period, he claims that he was not compensated for all of the overtime hours he worked. When Shaliehsabou worked less than eighty hours during a bi-weekly period, hours were deducted from his accrued leave time to make sure that his total hours for the bi-weekly period equaled eighty. If Shaliehsabou exceeded his leave time, he would be docked pay for absences, including absences of less than one day. Shaliehsabou was paid for less than eighty hours of work on a total of five occasions, all in the year 2000. Those shortfalls were due, according to the Hebrew Home, to administrative errors, and the Hebrew Home compensated him for the shortfalls prior to the institution of this lawsuit.

Shaliehsabou ceased work at the Hebrew Home in August 2000 and, in November 2001, commenced an action in Maryland state court, alleging that the Hebrew Home violated the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219 (West 1998 & Supp.2003) (FLSA), and the Maryland Wage and Hour Law, Md.Code Ann., Labor and Employment § 3-415 (1999)....

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