Shaliehsabou v. Hebrew Home ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FERMAN SHALIEHSABOU, 
Plaintiff-Appellant,
v.
 No. 03-1314
HEBREW HOME OF GREATER
WASHINGTON, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-02-284-AW)
Argued: January 21, 2004
Decided: April 2, 2004
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.
COUNSEL
ARGUED: Paul Frederick Newhouse, Towson, Maryland, for Appel-
lant. Jeffrey Jules Pargament, PILIERO, MAZZA & PARGAMENT,
Washington, D.C., for Appellee.
2 SHALIEHSABOU v. HEBREW HOME
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 Shaliehsa-
bou 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 corpora-
tion whose mission, according to its By-Laws, is to serve "aged of the
Jewish faith in accordance with the precepts of Jewish law and cus-
toms, 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 con-
tains 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
1
Although the term appears to have multiple spellings, to be consistent
with the opinion of the district court, we use the spelling "mashgiach" in
the singular and "mashgichim" in the plural.
SHALIEHSABOU v. HEBREW HOME 3
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 resi-
dents, 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 Jew-
ish 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 spiri-
tual 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 con-
siders 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 mash-
gichim to serve in the Hebrew Home. Pursuant to the agreement, the
Vaad was the "sole authority" for determining compliance with the
2
The Vaad is "a non-profit organization of Orthodox Jewish congrega-
tional rabbis in the Metropolitan Washington area." (J.A. at 108.) The
Vaad is also "the primary agency of kashruth supervision" in that area.
(J.A. at 109.)
4 SHALIEHSABOU v. HEBREW HOME
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 mash-
giach." (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
3
A yeshiva is "an Orthodox Jewish school of higher instruction in Jew-
ish learning, chiefly for students preparing to enter the rabbinate." Ran-
dom House Webster’s Unabridged Dictionary 2202 (2d ed. 1998).
SHALIEHSABOU v. HEBREW HOME 5
mashgiach in 1992. Shaliehsabou attended yeshiva in Colorado and
received a Bachelor of Talmudic Law from Ner Israel Rabbinical Col-
lege 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.) Shalieh-
sabou 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.) Pur-
suant to that end, Shaliehsabou’s "primary duties" included "inspect-
ing 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 prepara-
tion," 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 viola-
tions. 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.
4
For example, on one occasion a new employee put milk into a mixer
used for beef products, and Shaliehsabou contacted the Vaad to deter-
mine if he had to dispose of all of the products involved or instead could
ritually cleanse the mixer and utensils involved.
6 SHALIEHSABOU v. HEBREW HOME
During Shaliehsabou’s employment as a full-time mashgiach, he
was paid for at least eighty hours of work each bi-weekly period. Sha-
liehsabou, 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 com-
pensation 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. Shaliehsa-
bou 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 law-
suit.
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 Stan-
dards 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). Specifically, Shaliehsa-
bou alleged that the Hebrew Home failed to pay him overtime wages
as required by federal and state laws. The Hebrew Home filed a
notice of removal in January 2002, pursuant to 28 U.S.C.A. § 1441(a)
(West 1994), and the case was removed to the United States District
Court for the District of Maryland. Following discovery, the parties
filed cross-motions for summary judgment. The district court found
that Shaliehsabou fell within the "ministerial exception" to the FLSA
and granted the Hebrew Home’s motion for summary judgment on
February 12, 2003. The district court also found that, assuming Sha-
liehsabou did not fall within the ministerial exception, Shaliehsabou
was an exempt executive, administrative or professional employee, as
defined by 29 C.F.R. §§ 541.1-541.3 (2003).5 Shaliehsabou timely
5
All of these exceptions are limited to salaried employees, see 29
C.F.R. § 541.118(a) (2003), and must be proven by the employer by
SHALIEHSABOU v. HEBREW HOME 7
6
appeals the district court’s decision.
II.
We review the district court’s grant of summary judgment de novo.
See Hill v. Lockheed Martin Logistics Mgmt. Inc., 354 F.3d 277, 283
(4th Cir. 2004) (en banc). Summary judgment is appropriate "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
a judgment as a matter of law." Fed. R. Civ. P. 56(c) (West 1994);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We construe
the evidence in the light most favorable to Shaliehsabou and draw all
reasonable inferences in his favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
A.
The FLSA is commonly referred to as "the minimum
wage/maximum hour law." Monahan v. County of Chesterfield, 95
F.3d 1263, 1266 (4th Cir. 1996) (internal quotation marks omitted).
The purpose of the FLSA is "to protect all covered workers from sub-
standard wages and oppressive working hours." Barrentine v.
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). As an
early Supreme Court case examining the FLSA explained:
clear and convincing evidence. Shockley v. City of Newport News, 997
F.2d 18, 21 (4th Cir. 1993). The district court did not make a specific
finding that Shaliehsabou was a salaried employee and, on appeal, Sha-
liehsabou argues that he was not salaried because he was assigned an
hourly wage and his pay was docked for absences of less than one day.
Because we decide the case on the application of the ministerial excep-
tion, we do not consider the district court’s other grounds for granting
summary judgment, namely, whether Shaliehsabou is exempt from the
FLSA as an executive, administrator or professional.
6
The district court did not specifically address Shaliehsabou’s claim
under Maryland’s Wage and Hour law, and, on appeal, Shaliehsabou
does not pursue the state law claim.
8 SHALIEHSABOU v. HEBREW HOME
‘A fair day’s pay for a fair day’s work’ was the objective
stated in the Presidential message which initiated the legisla-
tion. That message referred to a ‘general maximum working
week,’ ‘longer hours on the payment of time and a half for
overtime’ and the evil of ‘overwork’ as well as ‘underpay.’
Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S. 572, 578
(1941) (footnote omitted).
Specifically, Congress found that "the existence, in industries
engaged in commerce or in the production of goods for commerce, of
labor conditions detrimental to the maintenance of the minimum stan-
dard of living necessary for health, efficiency, and general well-being
of workers" burdened interstate commerce and constituted an unfair
method of competition. 29 U.S.C.A. § 202(a). Congress, in addition
to restricting the use of child labor by employers, mandated payment
of a minimum wage for employees and, relevant here, required that
employees be paid at least time and a half for time worked beyond
forty hours in a week. 29 U.S.C.A. §§ 206-207(a). To effectuate the
goals of the FLSA, courts construe coverage under the FLSA "liber-
ally to apply to the furthest reaches consistent with congressional
direction." Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207,
211 (1959). "[B]road coverage is essential to accomplish the goal of
outlawing from interstate commerce goods produced under conditions
that fall below minimum standards of decency." Tony & Susan Alamo
Found. v. Secretary of Labor, 471 U.S. 290, 296 (1985). In accor-
dance with that goal, "‘[e]xemptions from or exceptions to the Act’s
requirements are to be narrowly construed.’" Monahan, 95 F.3d at
1268 (quoting Johnson v. City of Columbia, 949 F.2d 127, 129-30
(4th Cir. 1991)) (alteration in original).
Although the coverage of the FLSA is broad, two conditions must
be met for the minimum wage and overtime provisions of the FLSA
to apply to the Hebrew Home. First, the Hebrew Home must be an
"[e]nterprise engaged in commerce or in the production of goods for
commerce," 29 U.S.C.A. § 203(r), and second, Shaliehsabou must be
an "employee," which is defined under the FLSA to "mean[ ] any
individual employed by an employer," 29 U.S.C.A. § 203(e). The
FLSA was amended in 1961 to include coverage over enterprises,
and, at that time, "[t]here was broad congressional consensus that
SHALIEHSABOU v. HEBREW HOME 9
ordinary commercial businesses should not be exempted from the Act
simply because they happened to be owned by religious or other non-
profit organizations." Alamo, 471 U.S. at 298. The Hebrew Home
does not disagree and concedes that it is an "enterprise" for purposes
of the Act. Instead, the Hebrew Home argues that because the posi-
tion of mashgiach falls within the ministerial exception to the FLSA,
Shaliehsabou is not an "employee" under the FLSA.
B.
We have recognized that there is a ministerial exception to the
FLSA. Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1396 (4th
Cir. 1990). As we noted in Dole, "[t]his exemption is derived from
the congressional debate [about the FLSA] and delineated in guide-
lines issued by the Labor Department’s Wage and House Administra-
tor." Id. The relevant portion of those guidelines provides:
Persons such as nuns, monks, priests, lay brothers, minis-
ters, deacons, and other members of religious orders who
serve pursuant to their religious obligations in schools, hos-
pitals, and other institutions operated by their church or reli-
gious order shall not be considered to be "employees."
Field Operations Handbook, Wage and Hour Division, U.S. Dep’t of
Labor, § 10b03 (1967).
Considering the FLSA ministerial exception in Dole, we held that
the lay teachers at a religious school did not fall within the ministerial
exception because the "teachers in the present case perform no sacer-
dotal functions; neither do they serve as church governors. They
belong to no clearly delineated religious order." Dole, 899 F.2d at
1396. Importantly, in holding that the ministerial exception did not
apply, we looked to decisions dealing with the ministerial exception
under Title VII, such as Rayburn v. Gen. Conference of Seventh-Day
Adventists, 772 F.2d 1164 (4th Cir. 1985) and EEOC v. Southwestern
Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981). Dole,
899 F.2d at 1396.
In the Title VII context, we have applied a "primary duties" test to
determine whether an individual falls within the ministerial exception.
10 SHALIEHSABOU v. HEBREW HOME
In applying the primary duties test, we focus on "the function of the
position," and not whether the individual holding that position is for-
mally ordained — i.e., we ask "whether a position is important to the
spiritual and pastoral mission of the church." Rayburn, 772 F.2d at
1168-69 (4th Cir. 1985). Thus, "[a]s a general rule, if the employee’s
primary duties consist of teaching, spreading the faith, church gover-
nance, supervision of a religious order, or supervision or participation
in religious ritual and worship, he or she should be considered
‘clergy’." Id. at 1169 (quoting Bruce N. Bagni, Discrimination in the
Name of the Lord: A Critical Evaluation of Discrimination by Reli-
gious Organizations, 79 Colum. L. Rev. 1514, 1545 (1979)).
Although the Title VII ministerial exception is based on constitu-
tional principles7 and not on "congressional debate" and Labor
Department guidelines as is the FLSA exception, we implicitly have
held that the ministerial exceptions under the two Acts are coexten-
sive in scope. For example, we have relied on Title VII ministerial
exception cases in Dole, and we have cited both Dole and Title VII
cases together in support of the proposition that "[t]he ministerial
exception operates to exempt from the coverage of various employ-
ment laws the employment relationships between religious institu-
tions and their ‘ministers.’" EEOC v. Roman Catholic Diocese of
Raleigh, N.C., 213 F.3d 795, 800 (4th Cir. 2000) (citing both Dole
and Rayburn). Accordingly, our precedent in Dole and Diocese of
Raleigh suggests that when determining who is a member of a reli-
gious order serving pursuant to his religious obligations, for purposes
of the ministerial exception to the FLSA, we apply the same primary
duties test that we apply for purposes of the Title VII ministerial
exception. This common sense approach creates continuity between
the FLSA and Title VII, two employment laws of general applicabil-
7
In Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d
1164 (4th Cir. 1985), we held that applying Title VII to the employment
relationship between religious institutions and their ministerial employ-
ees would violate the Free Exercise and Establishment Clauses of the
First Amendment. We since have held that the Supreme Court’s inter-
vening decision in Employment Div., Dep’t of Human Resources of Ore-
gon v. Smith, 494 U.S. 872 (1990), has not abrogated the ministerial
exception. EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d
795, 800 n* (4th Cir. 2000).
SHALIEHSABOU v. HEBREW HOME 11
ity, and it allows us to avoid answering a difficult constitutional ques-
tion — i.e., whether the First Amendment would otherwise compel an
exception to the FLSA coextensive with that recognized as constitu-
tionally mandated in the Title VII context.8
Furthermore, using the primary duties test to determine the scope
of the FLSA’s ministerial exception is in accord with other statutory
exceptions to the FLSA. The minimum wage and overtime require-
ments, codified in §§ 206-207, do not apply to "any employee
employed in a bona fide executive, administrative, or professional
capacity." 29 U.S.C.A. § 213(a)(1). The implementing regulations
look to the "primary duties" of a salaried position to determine
whether an employee is a bona fide executive, administrator or pro-
fessional. See 29 C.F.R. §§ 541.1-541.3.9 Courts are thus familiar and
comfortable with examining the primary duties of an employee when
determining the scope of exceptions under the FLSA. In sum, by
determining whether a position is ministerial by referencing the pri-
mary duties of the position, the FLSA’s ministerial exception is coex-
tensive with that recognized under Title VII and parallels the inquiry
made for other exceptions to the FLSA.
It is further important to note that the primary duties test in this
context does not permit employers to avoid the broad coverage of the
FLSA. First, the ministerial exception to the FLSA applies only to
"employment relationships between religious institutions and their
‘ministers.’" Diocese of Raleigh, 213 F.3d at 800 (emphases added);
see also EEOC v. Catholic Univ. of Am., 83 F.3d 455, 474 (D.C. Cir.
8
See Harris v. United States, 536 U.S. 545, 555 (2002) (explaining
canon of construction that if a statute raises constitutional concerns the
Court will first look to see if the statute can be construed in a manner to
avoid difficult constitutional questions).
9
In fact, the primary duties test for the ministerial exception is quite
similar to the primary duties test applied to school employees under the
professional exception. That test exempts school employees whose pri-
mary duties include "[t]eaching, tutoring, instructing, or lecturing in the
activity of imparting knowledge." 29 C.F.R. § 541.3(a)(3). As discussed
above, supra note 5, the district court applied the primary duties tests for
the executive, administrative and professional exemptions and found that
Shaliehsabou qualified for each exemption.
12 SHALIEHSABOU v. HEBREW HOME
1996) (Henderson, J., concurring) (concluding that ministerial excep-
tion did not apply to secular decision taken by secular institution, but
concurring in judgment because the final employment decision rested
with the Catholic church). Also, as discussed above, the commercial
activities of religious institutions are covered by the FLSA. See
Alamo, 471 U.S. at 296 ("The statute contains no express or implied
exception for commercial activities conducted by religious or other
nonprofit organizations."); Brock v. Wendell’s Woodwork, Inc., 867
F.2d 196, 198-99 (4th Cir. 1989) (holding that child labor restrictions
under the FLSA applied to work performed in connection with com-
mercial activities of a religious organization). In addition, we have
held that "the exception would not apply to employment decisions
concerning purely custodial or administrative personnel." Diocese of
Raleigh, 213 F.3d at 801; see also Weissman v. Congregation Shaare
Emeth, 38 F.3d 1038 (8th Cir. 1994) (applying ADEA to secular
administrator of Jewish temple). Moreover, "[w]hile religious organi-
zations may designate persons as ministers for their religious pur-
poses free from any governmental interference, bestowal of such a
designation does not control their extra-religious status." Southwest-
ern Baptist, 651 F.2d at 283. In summary, the ministerial exception
to the FLSA applies only where the employer is a religious institution
and the employee’s primary duties are ministerial in nature. The
exception does not apply to the religious employees of secular
employers or to the secular employees of religious employers.
C.
1.
Turning to the instant case, Shaliehsabou argues both that his pri-
mary duties are not ministerial and that the Hebrew Home is not a
religious institution. We address each contention in turn.
First, Shaliehsabou argues that his position is not covered by the
ministerial exception because his primary duties involved nothing
more than inspecting incoming food deliveries and ensuring the
kosher preparation of food. Shaliehsabou avers that, apart from being
an Orthodox Jew, no special training is required to serve as a mash-
giach. He likens his case to Dole, wherein we held that to apply the
ministerial exception to all persons simply based on their sincere reli-
SHALIEHSABOU v. HEBREW HOME 13
gious beliefs or their membership in a religious group would "create
an exception capable of swallowing up the rule." Dole, 899 F.2d at
1397 (quotation marks omitted).
The Hebrew Home, in contrast, argues that the position of mash-
giach is intrinsically religious, because maintaining a kosher diet is an
integral part of Judaism and reflects a divine commandment from
God. Involvement in the kosher preparation of food, the Hebrew
Home asserts, amounts to the supervision of religious ritual and wor-
ship. Indeed, according to the Hebrew Home, there is no secular pur-
pose for employing mashgichim. Although the Hebrew Home
concedes that Shaliehsabou was not formally ordained, it points to his
own representations, as seen on his federal tax returns, that he consid-
ered himself to be clergy.
Although no court has considered whether a mashgiach is
exempted from the FLSA because he performs primarily ministerial
duties: three recent cases strongly suggest that exemption is appropri-
ate here. In Diocese of Raleigh, we held that a female who served as
a part-time music teacher and Director of Music Ministry at a Catho-
lic cathedral was a "minister." 213 F.3d at 802. We found first that
the position was "‘important to the spiritual and pastoral mission of
the church.’" Diocese of Raleigh, 213 F.3d at 802 (quoting Rayburn,
772 F.2d at 1169). "Music," we explained, "is an integral part of many
different religious traditions," and also "a vital means of expressing
and celebrating those beliefs which a religious community holds most
sacred." Id. We declined to apply the ministerial exception in a man-
ner that would "demote music below other liturgical forms." Id. We
concluded that, because the music teacher in question was "the pri-
mary human vessel through whom the church chose to spread its mes-
sage in song," she met the ministerial exception. Id. at 804.
Shaliehsabou, much like the Director of Music Ministry in Diocese
of Raleigh, is the primary human vessel through whom the Hebrew
Home chose to assure that the Jewish dietary laws were followed. In
addition, just as sacred music is integral to Catholicism, kosher food
is an integral part of Judaism.
Similarly, the Fifth Circuit has held that a choir director falls within
the ministerial exception to the Americans with Disabilities Act.
Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The court noted that
14 SHALIEHSABOU v. HEBREW HOME
"religious music plays a highly important role in the spiritual mission
of the church" and that the choir director "did serve as a spiritual
leader." Id. at 176. The court conceded that "the facts . . . are not as
strong" as other cases invoking the ministerial exception but nonethe-
less concluded that, because the choir director "participated in reli-
gious rituals and had numerous religious duties, [the position]
qualifies as a ‘minister.’" Id.Finally, the Seventh Circuit, in Alicea-Hernandez v. Catholic
Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003), applied Rayburn
and Diocese of Raleigh in holding that the Hispanic Communications
Manager of a Catholic church was a minister for purposes of the
exception. The court explained that a "press secretary is responsible
for conveying the message of an organization to the public as a
whole." Alicea-Hernandez, 320 F.3d at 704. The communications
manager was "a liaison between the Church and the community" and
was "integral in shaping the message that the Church presented." Id.The court contrasted the position of communications manager with
that of a translator, and noted that "if she had simply served in the
capacity of translating the message from English to Spanish, this
would be a different case." Id. at 704 n.4. Because, however, the posi-
tion served to shape and convey the message of the church to the pub-
lic, the court found that the communications manager was a
"minister."
We cannot see any meaningful distinction between Shaliehsabou
and the music ministers at issue in Diocese of Raleigh and Starkman
or the communications manager in Alicea-Hernandez. First, Shalieh-
sabou’s duties required him to perform religious ritual. He supervised
and participated in religious ritual and worship. Shaliehsabou was
responsible for starting and kosherizing the ovens and cleansing
kitchen utensils in accordance with the rules of kashruth. He also
oversaw the preparation of kosher food, a key aspect of the Jewish
halakha. Shaliehsabou arguably lacked independent authority to make
some decisions regarding food preparation, but "there is no require-
ment that an individual have the ‘final say’ on spiritual matters." Dio-
cese of Raleigh, 213 F.3d at 803. Importantly, it was his responsibility
to consult with the Vaad for proper resolution of any concerns. In
sum, we cannot say, given the importance of dietary laws to the Jew-
SHALIEHSABOU v. HEBREW HOME 15
ish religion, that the duties of mashgichim do not involve religious
worship and ritual.
In addition to performing religious ritual, Shaliehsabou occupied a
position that is central to the spiritual and pastoral mission of Juda-
ism. As a juridical religion, Judaism is dependent upon compliance
with its laws, including the kashruth, and Shaliehsabou was the vessel
through whom compliance with the kashruth was ensured for resi-
dents at the Hebrew Home. Unlike the teachers in Dole, Shaliehsa-
bou, through his mashgiach tasks, performed sacerdotal duties. As
Shaliehsabou has admitted, in the Jewish faith, non-compliance with
dietary laws is a sin. As explained above, Jews view their dietary laws
as divine commandments, and compliance therewith is as important
to the spiritual well-being of its adherents as music and song are to
the mission of the Catholic church. In short, failure to apply the min-
isterial exception in this case would denigrate the importance of keep-
ing kosher to Orthodox Judaism.
Accordingly, we hold that Shaliehsabou is a "minister" for pur-
poses of the ministerial exception to the FLSA because his primary
duties included supervision and participation in religious ritual and
worship, and his position is important to the spiritual mission of Juda-
ism. Because we find that Shaliehsabou is a "minister," we next con-
sider whether the Hebrew Home, in its employment of Shaliehsabou,
acted as a religious institution.
2.
We have never addressed whether the phrase "religious institution,"
in the context of the ministerial exception, applies only to churches
or church-operated entities, or whether it has broader meaning. Our
cases applying the ministerial exception, Rayburn, Diocese of
Raleigh, Dole, and Bell v. Presbyterian Church, U.S.A., 126 F.3d 328(4th Cir. 1997), all involved Christian churches or church-operated
entities. Each of these cases turned upon the duties of the individual,
not the religious status of the employing entity. Given the lack of
authority in our cases, we look to the decisions of our sister circuits
for instruction. Numerous courts have held that the term "religious
institution," in this context, can include religiously affiliated schools,
hospitals, and corporations. See EEOC v. Catholic Univ., 83 F.3d 46116 SHALIEHSABOU v. HEBREW HOME
(church-affiliated university); Geary v. Visitation of the Blessed Vir-
gin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993) (church-operated
school); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993)
(church-operated school); Scharon v. St. Luke’s Episcopal Presbyte-
rian Hosp., 929 F.3d 360 (8th Cir. 1991) (church-affiliated hospital);
Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir.
1989) (non-profit religious corporation). Particularly instructive are
the analyses provided in Scharon and EEOC v. Catholic University.
In Scharon, the Eighth Circuit addressed the application of the minis-
terial exception to a hospital chaplain. The court did not address
whether the hospital was private or charitable, but it did note that the
hospital "provides many secular services," but nonetheless explained
that "in its role as [the chaplain’s] employer, it is without question a
religious organization." Scharon, 929 F.2d at 362. The court based its
finding on the fact that the hospital was church-affiliated and that the
job description for the position of chaplain made clear that it was a
ministerial position. The court’s holding was a narrow one; the hospi-
tal was a religious institution, because, in acting as the employer of
a minister, the hospital was acting as an institution with "substantial
religious character." Scharon, 929 F.2d at 362.
In EEOC v. Catholic University, the D.C. Circuit applied the minis-
terial exception to a professor seeking a tenured position in the
Department of Canon Law at Catholic University. The D.C. Circuit
chose to apply the ministerial exception to Catholic University
because "the University’s ecclesiastical faculties serve as the instru-
ments established by the Catholic Church in the United States for
teaching its doctrines and disciplines." EEOC v. Catholic Univ., 83
F.3d at 464. Later, the court noted that although the Academic Senate
that made the tenure decision was secular, "it is by no means clear
that its decision was unaffected by religious considerations." Id. at
466. Thus, the ministerial exception applied because the University,
as a religiously affiliated entity with substantial religious character,
assumed the role of a religious institution in deciding to deny tenure.
We find the logic of Scharon and EEOC v. Catholic University per-
suasive, and we conclude that a religiously affiliated entity is a "reli-
gious institution" for purposes of the ministerial exception whenever
that entity’s mission is marked by clear or obvious religious charac-
teristics. Applying that standard here, we find that the Hebrew Home
SHALIEHSABOU v. HEBREW HOME 17
is a religious institution for purposes of applying the ministerial
exception.
Shaliehsabou’s chief argument is that the Hebrew Home is not a
religious institution because its mission is providing elder care, not
providing religious services. We disagree. As Scharon and EEOC v.
Catholic University make clear, an entity can provide secular services
and still have substantial religious character. The Hebrew Home is
religiously affiliated: its By-Laws define it as a religious and charita-
ble non-profit corporation and declare that its mission is to provide
elder care to "aged of the Jewish faith in accordance with the precepts
of Jewish law and customs." (J.A. at 101.) Pursuant to that mission,
the Hebrew Home maintained a rabbi on its staff, employed mash-
gichim to ensure compliance with the Jewish dietary laws, and placed
a mezuzah on every resident’s doorpost. Although we do not have to
decide the full reach of the phrase "religious institution," we hold that
the phrase includes an entity such as the Hebrew Home. Accordingly,
we conclude that the Hebrew Home is a religious institution for pur-
poses of applying the ministerial exception to the FLSA.
III.
Because we find both that the Hebrew Home was acting as a reli-
gious institution in employing Shaliehsabou and that Shaliehsabou’s
primary duties were ministerial, we hold that Shaliehsabou falls
within the ministerial exception to the FLSA. Accordingly, Shaliehsa-
bou is not an "employee" under the FLSA, and we affirm the district
court’s grant of summary judgment in favor of Hebrew Home.
AFFIRMED
LUTTIG, Circuit Judge, dissenting:
I do not believe that there is a "ministerial exemption" to the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq., and if there were, I do
not believe that it would be as far-reaching as the court holds today.
Because of the obvious importance of the issue decided, and the
evident incorrectness of the court’s holding, I urge the appellant to
18 SHALIEHSABOU v. HEBREW HOME
seek rehearing en banc from this court, and failing rehearing en banc
by this court, to seek review in the Supreme Court of the United
States.