Ontario Human Rights Commission v. Orlick Industries Limited, 2007 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Danielle Tweedle

Complainant

-and-

Orlick Industries Limited and Joe Paduano

Respondents

DECISION

Adjudicator: Sunil Kapur

Date: January 8, 2007

Citation: 2007 HRTO 1

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Anthony D. Griffin, Counsel

Danielle Tweedle, Complainant ) On her own behalf

Orlick Industries Limited and ) Andra M. Pollak and Joe Paduano, Respondents ) Audrey Ackah, Counsel

Introduction

1This hearing involves the complaint of Danielle Tweedle (the “Complainant”) dated June 10, 2002 (the “Complaint”). At the commencement of the hearing Commission counsel advised the Tribunal that the Commission and the Complainant have narrowed the issues from the Complaint. Firstly, the Complaint was now being advanced only against Orlick Industries Limited (“Orlick”) and Mr. Joe Paduano. Secondly, the Complainant was no longer asserting that her employment terminated with Orlick as a result of the alleged harassment. Accordingly, Commission counsel submitted that the issues before the Tribunal were:

(1) Was the Complainant subjected to sexual harassment by Mr. Paduano while employed at Orlick?

(2) If yes, can Orlick be held responsible for the conduct of Mr. Paduano?

2While counsel for Orlick and Mr. Paduano (collectively referred to as the “Respondents”) agreed that these were the two issues before the Tribunal, she disagreed with the description that there was a narrowing of the issues. Counsel for the Respondents submitted that the Commission and the Complainant were in fact expanding their case by including incidents of sexual harassment not stated in the Complaint.

3The Complainant, Mr. Paduano and four other witnesses for the Respondents – Barb Scime, Jeff Bastien, Loi Mach, David Lowe testified at the hearing. Despite hearing from the four additional witnesses, the Commission and the Respondents agreed that this case was essentially one of credibility. Since the Complainant and Mr. Paduano had diametrically opposed evidence, the Tribunal had to decide who was more likely telling the truth. There was no dispute in this case that the Commission and the Complainant had the burden of proof.

Evidence

4The Complainant testified that during her employment with Orlick she was subjected to sexual harassment by her supervisor, Mr. Paduano. She testified that she commenced employment with Orlick on September 21, 1998 as a Trim Press Operator. She testified that Mr. Paduano would call her Danielle, “hon” or “sweetie” at work. She testified that she did not complain about being called “hon” or “sweetie” because she was afraid of losing her job. The Complainant stated that a lot of people had been fired at Orlick and that she felt intimidated. Later on in cross-examination the Complainant was asked if calling her “hon” or “sweetie” bothered her, she replied “No, not really”.

5The Complainant testified that while she was working at the Parkdale location of Orlick Mr. Paduano touched her. She stated that on two occasions Mr. Paduano stuck his tongue in her ear because she had failed to wear ear plugs. The Complainant stated that she did not object on either occasion nor did she inform anyone in management at Orlick about these two incidents. Again, the Complainant stated that she did not object nor complain because she was afraid of losing her job. The Complainant stated that had this been done by someone who did not have the “power to fire me on the spot” that she would have done something.

6The Complainant also testified that while working at the Parkdale location of Orlick, Mr. Paduano had put his arm around her and had touched her shoulder with his hand. She described Mr. Paduano as “touchy feely”. She did not object to this touching nor did she complain to anyone in management about it. The Complainant testified that Mr. Paduano was “notorious” for firing people and that nobody wanted to work on his shift. Again, she stated that she was afraid of losing her job. The Complainant testified that Mr. Paduano would “call us disposable”.

7The Complainant testified that she transferred to the Teal location of Orlick in February of 1999. At the Teal location Mr. Paduano continued to be her supervisor. The Complainant testified that at Teal, Mr. Paduano continued to call her “hon” and “sweetie” and continued to put his arm around her. She stated that he would stand close to her and rub into her. She did not object nor did she complain to anyone in management at Orlick. Again, the Complainant stated that she was afraid that she would lose her job.

8On January 28, 2002, the Complainant testified that she was working in the Quality Assurance department and no longer under the supervision of Mr. Paduano. On that day the Complainant was working the 11 a.m. to 7 p.m. shift. The Complainant testified that while working on the skids in her area, Mr. Paduano walked up and squeezed behind her while placing his hands on her hips and touching his groin area against her buttocks. He then allegedly walked to the other side of the skid and spoke to her about employees at the Parkdale location that were unhappy with her and that he was giving her a heads up. She testified that she did not initially object to Mr. Paduano about his actions but did feel violated. She testified that she did not yell, raise her voice or make any gesture at this point. Instead, the Complainant waited between 15 to 20 minutes and then sought out Mr. Paduano. She testified that she asked Mr. Paduano if she could speak to him in his office. In Mr. Paduano’s office the Complainant stated that she advised Mr. Paduano that how he touched her made her feel uncomfortable and that he should stop. Mr. Paduano allegedly started to yell and scream at the Complainant and stated that he had heard from someone at Parkdale that she was out to get him.

9After the incident in Mr. Paduano’s office, the Complainant went to see Mr. Robert Geist, Assistant Quality Supervisor, and advised him of what had happened with Mr. Paduano. On January 30, 2002, the Complainant met with Mr. Loi Mach (“Mr. Mach”), Quality Supervisor, and described to him what had occurred with Mr. Paduano on January 28, 2002. According to the Complainant, Mr. Mach shook his head and stated “again”. She then said that Mr. Mach advised her that she was in “for a bumpy ride” and that it was “her word versus Joe’s”. The Complainant further testified that Mr. Mach asked her if “she wanted Joe to lose his job”. The Complainant stated that she was shocked by this response from Mr. Mach.

10After the meeting in Mr. Mach’s office the Complainant met with Roy Ross, Plant Manager and Bob Jones, in order to continue with the complaint against Mr. Paduano.

11The evidence of Mr. Paduano was completely counter to the evidence of the Complainant. Mr. Paduano denied every single incident alleged by the Complainant. In addition to denying the alleged incidents, Mr. Paduano testified to a working relationship that was not one of fear and intimidation. He stated that he had not terminated anyone while working at Parkdale and was only involved in one termination at the Teal location. Mr. Paduano described a relationship with the Complainant that was for the most part friendly until her boyfriend was terminated at Orlick. He stated that they would discuss personal matters not related to work. Mr. Paduano gave a number of examples of the personal interaction between himself and the Complainant.

12Mr. Paduano testified that on January 28, 2002 he did go to see the Complainant while she was working in the Quality Assurance department. He testified that he had been told by his brother that the Complainant was out to get him. He also testified that he had heard rumours that employees at Parkdale were upset with the Complainant. Mr. Paduano testified that he approached the Complainant on January 28, 2002 to give her a heads up that the Parkdale employees were upset with her. He did this despite the fact that the two had not been talking for a while and the warning given to him by his brother. Mr. Paduano testified that on January 28, 2002 he felt he could speak to the Complainant because she had shown him some Christmas pictures and that this had “broken the ice” between them. Mr. Paduano’s recollection of the way he walked towards the Complainant while she was working at the skids was different than the evidence given by the Complainant. Mr. Paduano testified that after speaking with the Complainant at the skids about the Parkdale employees, she approached him a little while later and asked to speak to him in his office. Mr. Paduano testified that the Complainant initially thanked him for giving her the heads up about the Parkdale employees and then stated to him that the way he brushed up to her was inappropriate. Mr. Paduano testified that he denied any improper contact and told the Complainant that she was playing games. He further advised the Complainant that he would no longer meet with her without someone else being present.

13In their closing arguments counsel for the Commission and the Respondents argued that this case was one of credibility and that I had to decide whether Mr. Paduano or the Complainant was more likely telling the truth about the alleged incidents. Commission counsel urged the Tribunal to find that the Complainant was more credible because she had less to gain from telling a lie about the incidents.

Decision

14After weighing all of the evidence admitted in this matter I have found that the Complainant was not a credible witness. My finding is based on the following:

1. The vagueness and generality of some of the evidence provided by the Complainant

2. The Complainant on a number of occasions testified to a climate of fear and intimidation that existed for employees working with Mr. Paduano. She referred to Mr. Paduano as the “firing king” who had been responsible for terminating between 20 to 30 employees. On cross-examination, the Complainant could not provide any meaningful examples of Mr. Paduano terminating other employees. Furthermore, the evidence of Barb Scime and Jeff Bastien directly contradicted the Complainant on the claim that there was a climate of fear and intimidation and that Mr. Paduano was the firing king who had terminated between 20 to 30 people. I found both Barb Scime and Jeff Bastien to be credible witnesses.

3. The evidence of Loi Mach directly contradicted the Complainant’s evidence of what occurred between them. Contrary to the testimony of the Complainant, Loi Mach stated that he never advised the Complainant that they had this problem before and that it would be a bumpy ride. Instead he stated to her that he did not know how to handle this case and would re-direct it to Roy Ross. I found Loi Mach to be a credible witness.

4. On cross-examination the Complainant admitted to interactions with Mr. Paduano that demonstrated a relationship that was more friendly than she had described in her testimony in-chief. The Complainant admitted on cross-examination that she had brought her father into the plant to see the facility and that Mr. Paduano gave him a tour of the plant. The Complainant admitted in cross-examination that on one occasion when Mr. Paduano had brought his wife and kids into the plant she had taken his kids to the lunch room and bought them some treats. The Complainant also admitted on cross-examination that she had asked Mr. Paduano to remove her belly button piercing in the workplace. She stated that the piercing had become infected. Mr. Paduano used bolt cutters to remove the piercing. The Complainant’s admission that she had asked Mr. Paduano to remove the belly button piercing in the workplace while at the same time asserting that she was afraid and intimidated by him defies all logic. The Complainant provided no credible explanation as to why she needed the piercing removed in the workplace or why Mr. Paduano, a person who allegedly been engaging in improper touching of her, was the person who she had do the removal.

15I also have concerns with the evidence of Mr. Paduano. I found that some of his answers on cross-examination were evasive. Additionally, I found that Mr. Paduano’s explanation of why he approached the Complainant on January 28, 2002 difficult to believe.

16Despite my concerns about some of the evidence of Mr. Paduano, on a balance of probabilities, I do not prefer the Complainant's evidence over Mr. Paduano's. Accordingly, the onus of proof has not been discharged. Therefore, I am left with the conclusion that the Complaint must be dismissed.

17The Tribunal orders that the Complaint be dismissed.