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Equal Employment Opportunity Commission v. Ilona of Hungary

October 2, 1996

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF-APPELLEE,

v.

ILONA OF HUNGARY, INCORPORATED, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 92 C 6698

Before BAUER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Joan Humphrey Lefkow, Magistrate Judge.

ARGUED FEBRUARY 21, 1996

DECIDED OCTOBER 2, 1996

MODIFIED ON REHEARING MARCH 6, 1997 *fn*

We consider in this appeal the extent to which an employer must accommodate its employees' religious practices under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(a)(1). Lyudmila Tomilina and Alina Glukhovsky were employed by defendant Ilona of Hungary, Inc. ("Ilona") in its Chicago beauty salon, Tomilina as a manicurist and Glukhovsky as a skin care specialist or "esthetician." Tomilina and Glukhovsky are Jewish, and both asked to take the day off without pay on Saturday, September 29, 1990, in order to observe Yom Kippur, a Jewish holy day. Ilona refused their requests and when neither employee appeared for work on Yom Kippur, decided to terminate their employment. Tomilina and Glukhovsky filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC" or "Commission"), which commenced this action in federal court. See 42 U.S.C. sec. 2000e-5(f)(1). Following a bench trial, the district court entered judgment for the Commission on the basis of detailed findings of fact and conclusions of law. See EEOC v. Ilona of Hungary, Inc., 885 F. Supp. 1111 (N.D. Ill. 1995). The court awarded back pay to Tomilina and Glukhovsky and ordered that Glukhovsky be reinstated. The court also granted the Commission's request for a permanent injunction that, inter alia, prohibits Ilona from engaging in any practice that discriminates on the basis of religion. In this appeal, Ilona challenges the finding of a Title VII violation as well as certain aspects of the relief afforded below. We affirm in part and reverse in part.

I.

As we said, the district court issued detailed written findings after conducting a six-day bench trial. Our description of the factual background underlying the Commission's claim relies on those findings, but notes, where appropriate, the contrary evidence rejected by the lower court.

Ilona is owned by George and Ilona Meszaros, who immigrated to this country from Hungary approximately forty years ago. In 1971, the Meszaroses opened the first Ilona salon in Denver, Colorado. They subsequently opened salons in a number of other cities, including the salon at issue here located at 45 East Oak Street in Chicago. Ilona offers three major services at its Chicago salon: nail care provided by manicurists, skin care provided by estheticians, and body care provided by masseuses. Ilona also manufactures and sells to its customers a proprietary line of skin and nail care products used in its salons.

Ilona generally hires manicurists, estheticians, and masseuses who were trained in Europe, as it believes that European-trained service personnel are more qualified than their domestically-trained counterparts. Tomilina and Glukhovsky are cases in point, as both came to the United States as Jewish refugees from the former Soviet Union, where Tomilina had received formal training in nail care and Glukhovsky in skin care.

Tomilina came to this country in 1989 and began working as a manicurist in Ilona's Chicago salon in August of that year. In early October, Tomilina asked the salon's manager if she would be permitted to take the day off on Yom Kippur, which in 1989 fell on October 9. Because her request was made only a few days before the holiday, however, the salon's manager refused to allow Tomilina to take the entire day off, but instead permitted her to miss two hours in the morning while she attended religious services. At the time, Ilona's employee manual indicated that if an employee requested a day off for religious reasons, the company would "cooperate" with the request "provided advance notice [was] given." Employees were not paid, however, when they took a day off for religious reasons.

The following year, Tomilina decided to make her request at least two weeks in advance. Thus, on or about September 13, 1990, Tomilina asked Theresa Gold, who then managed the Chicago salon, for permission to take the day off on Saturday, September 29, 1990 to observe Yom Kippur. Tomilina made this request because she sincerely believed that members of the Jewish faith should refrain from working on their day of atonement. Gold did not question the sincerity of Tomilina's religious beliefs but said that she would pass along the request to the Meszaroses. *fn1 Gold then informed the Meszaroses of Tomilina's request, noting as well that Tomilina was already partially booked with appointments on that Saturday. The Meszaroses instructed Gold to deny the request, which Gold did. Gold also continued, then, to schedule additional appointments for Tomilina on September 29. Yet Tomilina apparently did not understand that her request had been denied, *fn2 and she therefore did not report to work on Yom Kippur.

Glukhovsky's story is similar. She came to the United States with her husband in 1981 to escape anti-Semitism in the Soviet Union. She was hired by Ilona in November 1982 as an esthetician. Prior to September 1990, Glukhovsky had never requested a day off from work for religious reasons. Indeed, she had represented to co-workers that she was not a particularly religious person. On or about September 13, 1990, however, Glukhovsky asked that she be permitted to be absent from work on Saturday, September 29 in order to observe Yom Kippur. Although Gold did not at the time question the sincerity of Glukhovsky's religious beliefs, that became a hotly contested issue at trial. After considering all of the evidence, the district court found that Glukhovsky's belief that she should refrain from work on Yom Kippur was sincere. *fn3

Gold told Glukhovsky that she would relay her request to the Meszaroses. Like Tomilina, Glukhovsky was already partially booked with appointments for September 29, as were the Chicago salon's four other estheticians. *fn4 When Gold relayed these facts to the Meszaroses, they instructed Gold to deny Glukhovsky's request. On September 20, Gold communicated that decision to Glukhovsky, who asked if Gold had stressed to the Meszaroses the importance of the holiday to her religion. Glukhovsky even asked if she might speak with the Meszaroses directly. Glukhovsky ultimately told Gold that she would not be reporting to work on September 29 and that Gold should refrain from scheduling any additional appointments for that day. Gold testified, however, that she fully expected Glukhovsky to work on September 29, and she in fact continued to schedule appointments for Glukhovsky. *fn5 But true to her word, Glukhovsky observed the Yom Kippur holiday on September 29 and did not report for work.

After the holiday, neither Tomilina nor Glukhovsky were scheduled to work on Sunday, September 30 or Monday, October 1. Both returned to work on Tuesday, October 2 and worked their regular schedules through Saturday, October 6. The Meszaroses, meanwhile, were attempting to decide how to respond to the unexcused absences of September 29. George Meszaros contacted the EEOC's Denver office and asked whether he could terminate Tomilina and Glukhovsky for failing to work on Yom Kippur. The Meszaroses ultimately decided that they could and they would. Thus, they instructed Gold to inform Tomilina and Glukhovsky at the close of business on October 6 that their employment was being terminated. Prior to that, however, on October 5, the Meszaroses directed all of Ilona's Chicago employees to return their employment manuals (which included the "cooperation" clause referenced above) by the morning of October 6. At the close of business on that day, having collected the employment manuals, Gold carried out the Meszaroses' wishes, informing Tomilina ...


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