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EEOC v. ILONA OF HUNGARY

April 7, 1995

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
ILONA OF HUNGARY, INC., Defendant.



The opinion of the court was delivered by: JOAN HUMPHREY LEFKOW

 Joan H. Lefkow, Executive Magistrate Judge:

 Plaintiff, United States Equal Employment Opportunity Commission (the "EEOC"), is an agency of the United States charged with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). At all times material to this action, defendant, Ilona of Hungary, Inc. ("defendant" or "Ilona of Hungary"), has been and is a privately held corporation doing business in Chicago, Illinois, as well as in the states of Colorado, California, New York and Texas. The EEOC brought this action, as it is authorized to do, under sections 706(f)(1) and (2) of Title VII, 42 U.S.C. §§ 2000e-5(b)(1) and (3), alleging, inter alia, that defendant discriminated against two of its employees by refusing to accommodate their religious practices and for terminating those employees on the basis of their religion, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). *fn1"

 The parties consented to disposition of the case by a United States Magistrate Judge, under the provisions of 28 U.S.C. § 636(c). The case was tried to the court. After trial, the parties submitted proposed findings of fact and conclusions of law. Based on the evidence received, including the stipulations of the parties, the exhibits, and the testimony of the witnesses, the court, having observed the demeanor of the witnesses and considered the weight of all of the evidence, enters the following findings of fact:

 FINDINGS OF FACT

 1. On October 12, 1990, Lyudmila Tomilina ("Tomilina") filed with the EEOC a timely Charge of Discrimination, alleging that defendant had discriminated against her because of her religion in violation of Title VII.

 2. On October 17, 1990, Alina Glukhovsky ("Glukhovsky") filed with the EEOC a timely Charge of Discrimination alleging that defendant had discriminated against her because of her religion in violation of Title VII.

 3. Following an investigation, a reasonable cause finding and unsuccessful conciliation efforts with respect to Tomilina's and Glukhovsky's charges, the EEOC filed this action on October 5, 1992.

 4. In 1990, Ilona of Hungary was owned by George and Ilona Meszaros (the "Meszaroses"); in 1990, George Meszaros was owner and chairman of defendant; in 1990, Ilona Meszaros was owner and president of defendant. The Meszaroses' two children also own a portion of the stock of defendant.

 5. George and Ilona Meszaros are naturalized American citizens who immigrated to the United States from Hungary in the mid-1950's. Both left Hungary to escape oppression by the Communist government.

 6. Ilona of Hungary is engaged in the business of providing skin care services to the public through commercial salons; not only does Ilona of Hungary serve the conventional "beauty" market, it also treats clients for skin care problems on referral from physicians. Ilona of Hungary also manufactures, uses, and sells a proprietary line of skin and nail care products.

 7. The Chicago salon, located at 45 East Oak Street, at all relevant times, provided three major services: skin care provided by "estheticians"; nail care provided by manicurists; and body care provided by masseuses.

 9. Both Tomilina and Glukhovsky came to the United States as Jewish refugees from what was then the Soviet Union. Tomilina came to this country in 1989 and Glukhovsky in 1981.

 10. On or about August 4, 1989, Tomilina began to work for defendant as a manicurist at the Chicago salon. The employer-employee relationship was in all significant respects mutually satisfactory throughout.

 11. Between approximately September 12 and September 15, 1990, Tomilina requested of Theresa Gold, the manager of defendant's Chicago salon, that Tomilina be permitted to take off from work on Saturday, September 29, 1990 to observe Yom Kippur. *fn2"

 12. Yom Kippur is, according to the witnesses, one of the highest holy days in the Jewish faith. A faithful adherent of the Jewish religion refrains from work on Yom Kippur.

 13. In requesting Yom Kippur off from work, Tomilina did not ask and did not expect to be paid for that day.

 14. At the time, Ilona of Hungary employed three manicurists, two of whom were Jewish. At the time Tomilina made her request, one of the other manicurists, Sophie Kapmar, had also asked for Yom Kippur off but had agreed to work when Gold indicated she could not have the day off.

 15. At the time she requested Yom Kippur off, Tomilina sincerely believed that she should not work on Yom Kippur because of her religion. *fn3"

 16. When Tomilina made her request to observe Yom Kippur, neither Gold nor the Meszaroses questioned the sincerity of Tomilina's religious beliefs, nor did they express any such doubt.

 17. Gold vaguely recalled that she had checked the appointment book and noted that Tomilina had four to seven clients booked. *fn4" Gold told Tomilina that she would check with the Meszaroses.

 18. Gold testified that she contacted the Meszaroses, informing them of Tomilina's request and that Tomilina was already partially booked for September 29. The Meszaroses instructed Gold to deny the request.

 19. Gold testified that she informed Tomilina that her request was denied. Tomilina testified that she was never told her request had been denied. *fn5"

 20. After defendant learned that Tomilina needed Yom Kippur 1990 off from work, neither Gold nor any other member of defendant's management considered or offered any accommodation to allow Tomilina to take one day off from work to observe the religious holiday, and defendant did nothing to attempt to accommodate Tomilina's request, such as to attempt to reschedule any appointments which may have been booked for Tomilina to another date or another manicurist.

 21. After informing Tomilina that she could not have the day off, Gold expected Tomilina to work on September 29 and she continued to book appointments for Tomilina for that day.

 22. On Saturday, September 29, 1990 Tomilina observed Yom Kippur and did not report to work.

 23. Tomilina took her regular days off from work on Sunday, September 30 and Monday, October 1, 1990. She returned to work on Tuesday, October 2, 1990, the first date after Yom Kippur on which she was scheduled to work.

 24. Tomilina worked October 2, 1990 through October 6, 1990, as scheduled, during which time Gold never advised Tomilina that she had violated any company policy by failing to report to work on September 29, 1990.

 25. At the close of business on Saturday, October 6, 1990, Gold called Tomilina into her office and informed Tomilina that the Meszaroses had decided to terminate her employment because she had not come to work on September 29, 1990.

 26. On October 6, 1990, when Tomilina was discharged by defendant, neither Gold nor any other member of defendant's management ever told Tomilina that she was terminated because the company could not afford to allow her to be off from work on a Saturday.

 27. At the time defendant terminated Tomilina, no member of defendant's management doubted the sincerity of Tomilina's religious beliefs.

 28. Defendant replaced Tomilina one month after she was fired.

 29. In or about November, 1982, Glukhovsky began to work for defendant as an esthetician at defendant's Chicago facility.

 30. At some time shortly before Tomilina's request, on or about September 13, 1990, Glukhovsky requested that she be permitted to take off from work on Saturday, September 29, 1990, to observe Yom Kippur. *fn6"

 31. In requesting Yom Kippur off from work, Glukhovsky did not ask and did not expect to be paid for that day.

 32. At the time, Ilona of Hungary employed five estheticians of whom only Glukhovsky was Jewish.

 33. On or about September 13, 1990, when Glukhovsky made her request to Gold for time off on September 29 to observe Yom Kippur, Gold did not question the sincerity of Glukhovsky's religious beliefs.

 34. Both Gold and the Meszaroses conceded that at the time of Glukhovsky's request they had no basis for doubting the sincerity of Glukhovsky's request for time off from work on Yom Kippur, 1990 and did not question her sincerity.

 35. At the time she requested Yom Kippur off in September, 1990, Glukhovsky in fact, intended to observe the holy day in keeping with the tenets of her Jewish faith.

 36. Glukhovsky testified credibly that although she had not practiced her faith in past years, *fn7" in recent years she has sincerely believed her religion requires that she refrain from work on Yom Kippur. She testified that her faith has become more important to her life as the result of observing that religion had helped her husband grieve his mother's death, her desire that her son grow up in a religious community, and her husband's family, which is very religious, coming to live in Chicago. This progression is corroborated to an extent by evidence that Glukhovsky worked on Yom Kippur through 1987, but did not in 1988, 1989 *fn8" or 1990. Glukhovsky's testimony about the sincerity of her beliefs is credited.

 37. When Glukhovsky made her request to Gold to be off from work to observe Yom Kippur on September 29, 1990, Gold told Glukhovsky that she could not approve her request without first consulting with the Meszaroses.

 38. Gold testified that after Glukhovsky's request, she checked the appointment book and noted that Glukhovsky was partially booked for Saturday, September 29. Gold believed that if Glukhovsky was already partially booked, she would be fully booked by September 29. Other estheticians were also partially booked. Gold testified that she informed Glukhovsky that, based on the amount of clients booked and the nature of her request, that she probably could not have the day off but would check with headquarters. *fn9"

 39. On or about September 20, 1990, Gold told Glukhovsky that the Meszaroses had decided that she could not take Yom Kippur off.

 40. Glukhovsky testified that when Gold informed her that her request for time off from work to observe Yom Kippur on September 29, 1990 had been denied, she asked Gold whether or not she had stressed to the Meszaroses the importance of the Yom Kippur holiday to her; she asked Gold whether she could speak to the Meszaroses directly the next time Gold communicated with the owners so that she could personally stress the importance of the holiday to them; and she told Gold not to book any clients for her because she was not going to report to work on Yom Kippur. Glukhovsky testified that Gold even advised her to call in sick so as to avoid a confrontation on the issue. Gold denied all of these statements.

 41. Gold testified that she expected Glukhovsky to come to work on September 29. The absence record for that day, prepared by Gold, reflects, however, that Glukhovsky's absence was "expected in advance." The court finds that it is likely that Glukhovsky did inform Gold that, despite the Meszaroses denial of her request, she would not come to work on Yom Kippur, but that Gold, being "between a rock and a hard place" followed her employer's direction and continued to book appointments as if Glukhovsky would come to work. The court credits Glukhovsky's testimony concerning her conversations with Gold.

 42. After defendant learned that Glukhovsky needed Yom Kippur 1990 off from work, neither Gold nor any other member of defendant's management considered or offered any accommodation to allow Glukhovsky to observe the religious holiday, and defendant did nothing to attempt to accommodate Glukhovsky's request. For example, between the time of Glukhovsky's request and September 29, 1990, defendant did not attempt to reschedule any appointments which may have been booked for Glukhovsky to ...


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