Dioba v. Pusateri’s, 2009 HRTO 1140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba

Applicant

-and-

Pusateri’s Limited, Tony Adamo, John Mastroianni and Frank Luchetta

Respondents

DECISION

Adjudicator: Alan Whyte

Date: July 24, 2009

Citation: 2009 HRTO 1140

Indexed as: Dioba v. Pusateri’s

1In this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), the applicant alleges discrimination in the provision of goods, services and facilities on the basis of race, ancestry, place of origin, ethnic origin, sexual solicitation, and reprisal.

2The applicant is of Croatian descent and alleges that both Italian and non-Italian representatives of Pusateri’s Limited (“the respondent”) discriminated against him while he was a customer of the respondent's store in Yorkville from the opening of that store in November 2003 until September, 2008.

3A hearing was held on July 8, 2009 at which time I heard evidence from the applicant and from all three individual respondents, plus Lindsay Webb, the human resources manager for the respondent. In addition, a number of documents consisting of two letters from the applicant to the respondent and various documents related to the respondent’s human resources policies and practices were entered into evidence.

APPLICANT’S EVIDENCE

4The applicant stated that he attended on almost a daily basis at the respondent’s store, at which time he typically purchased a coffee and a muffin, and in doing so usually spent less than five dollars per day. Over the years, he interacted with a large number of the respondent's employees including cashiers and some members of management.

5He stated that on most occasions, he was provided good customer service by the respondent’s employees. However, he related a number of incidents in respect of which he alleged that he received poor customer service, or his complaints were not satisfactorily addressed by the respondent's managers, all of which he perceived to be discriminatory on the basis of his ethnicity. He conceded in cross examination that the number of times that he received poor customer service was very small in relation to the total number of times that he attended at the respondent’s store over the 2003 to 2008 timeframe.

6The incidents that the applicant put forward to support his claims of discrimination were the following:

(a) he made general reference to an oral complaint that he made in 2004 to a manager of the store that he was only able to describe physically. He said that the manager was reasonable to deal with but that no correction was made in relation to his complaint (the basis of which was not explained).

(b) in about July 2008, the applicant was provided coffee of a different “texture” than the one ordered by him. Mr. Adamo, the assistant manager of the store, responded to the applicant's complaint satisfactorily, although the applicant felt that Mr. Adamo was sarcastic in his dealings with the applicant. He said that the employee who had given him the wrong coffee acted as if she was the “number one queen” of the store.

(c) on August 13, 2008, the applicant paid by debit for his coffee, and instead of providing his debit receipt to him, he alleged that the cashier threw it in the garbage. When the cashier ignored his request for the receipt, Mr. Adamo became involved again. The applicant alleged that Mr. Adamo took a phone call on his cell phone and walked away from the applicant stating “I am fed up with you. You are a nuisance”. Ultimately the applicant received a copy of the debit receipt from another manager at the store, which satisfied the applicant. The applicant alleged that Mr. Adamo dealt with him because he was an immigrant with a different ethnic and racial background from his own.

(d) in late August or early September 2008, the applicant observed a book falling on some pastries which were displayed for sale next to the cashier area. When the applicant suggested to the respondent’s Filipino employee that those pastries should not be sold having been touched by the book, the employee did not remove the pastries and made no apology to the applicant.

(e) in early September, 2008, an incident occurred involving the respondent’s employee Solomaz, an employee of Middle Eastern descent. The applicant alleged that Solomaz refused to give him his debit receipt as a result of which she spoke rudely to him.

(f) on September 15, 2008, the applicant ordered a light brand coffee but was served a strong brand of coffee instead. The employee provided an explanation about having to stop a coffee pot from falling on the floor, which explanation the applicant thought was childish and insufficient.

(g) on September 16, 2008, the store manager with whom the applicant had dealt in 2004 gave the applicant “very strong negative eyebrow disapproval”.

7The applicant stated that Mr. Adamo had been involved in at least two of the incidents and that with the exception of incident (c) above, had attempted to satisfy him by replacing his coffee and/or refunding his payment.

8The applicant alleged in relation to these incidents that the respondent had instructed its employees to behave in a spiteful manner towards him as a “fresh immigrant” and further, that the respondent’s managers had done nothing to correct the problems being encountered by the applicant.

9The applicant wrote two letters of complaint to the respondent, the first dated August 13, 2008 to Mr. Mastroianni, the general manager of the respondent, and the second dated September 17, 2008 to Frank Luchetta, the president of the respondent. Mr. Mastroianni responded to the applicant's letter by phone and e-mail, and assured the applicant that the customer service issues that he was encountering (which were described in the August 13, 2008 letter) would be addressed by him. However, the applicant felt that there was no improvement and thus wrote to Mr. Luchetta. Mr. Luchetta left a voicemail for the respondent asking him to call, despite the fact that the applicant had required a written response by September 19, 2008, failing which he would proceed to the “HRTO”. Not having received a written response by that deadline, the applicant proceeded with his Application to the Tribunal.

10In relation to the ground of sexual solicitation, the applicant testified that on several occasions, a number of the female employees of the respondent had been “friendly” towards him, although he conceded that there was nothing overtly sexual about their conduct. He explained that in his experience, immigrant women who were struggling would sometimes pursue Italian men as they were perceived as being their solution for their miseries. The applicant said that he has been mistaken in the past for being Italian. He said that when he indicated no interest in the female employees, they became “mannerless” towards him.

11With regard to the ground of reprisal, the applicant said that he thought he was perceived as a troublemaker in the respondent’s store for a period of five years, and that the respondent and its employees were attempting to find a way to stop him from coming back to the store. He referenced the manager giving him a negative look using his eyebrow and other incidents where the female employees of the store made him feel unwelcome.

12The applicant claimed $7500 in damages because of the long-term impact on him of the respondents’ conduct emotionally, mentally and psychologically. He said that his motivation and productivity were adversely affected as was his relationship with his family. He said that the fact that he cannot return to the respondent’s store is disturbing for him and that he feels that he is not part of the community and in “exile”. As part of the $7500, the applicant is seeking the return of the monies spent by him at the respondent’s store which he estimated at $2000. The balance of the damages are to reflect the belittlement and loss of dignity that the applicant alleges that he has suffered as a result of the respondents’ conduct. The applicant indicated that he had not returned to the respondent’s store since September 16, 2008.

RESPONDENTS’ EVIDENCE

13Mr. Mastroianni gave evidence in relation to the culture of the respondent which emphasizes customer service, excellence and integrity and embracing diversity, as reflected in the Core Values document of the respondent which was entered as an exhibit. He said that the respondent is a multicultural operation with employees and customers from many different ethnic backgrounds. He testified that the culture of the respondent is to treat its customers and employees with respect, and not to abuse them. He said that if problems or issues occur with customers, the company’s approach is to solve them as quickly as possible.

14Ms. Webb described the policies and practices of the respondent in relation to the prevention of discrimination and harassment in the workplace and in relation to the respondent’s customers. The respondent’s “Prevention of Harassment and Discrimination in the Workplace Policy” (which extends to and includes customers) and an excerpt from the respondent’s employee handbook dealing with discrimination and harassment were entered into evidence. Ms. Webb is in charge of the hiring and orientation processes at the respondent. She indicated that the hiring process involves three interviews and reference checks in order to ensure that the applicant has not exhibited questionable behaviour in the past. The orientation process involves a review of the above mentioned policy and the requirement that the employee read and sign off on the employee handbook. Ms. Webb also discusses with the new employee various situations, which include discrimination and harassment cases.

15All of the respondent's witnesses emphasized the very high importance placed on customer service at the respondent. They also noted that the respondent had never been accused of discrimination previously.

16Mr. Adamo gave evidence in relation to the two incidents with the applicant in which he was involved. The first was a case of the applicant not receiving a debit receipt from a cashier. He spoke to the cashier who indicated to him that the debit receipt had been placed on the counter, but was not picked up by the applicant. Mr. Adamo offered the applicant a duplicate receipt and was able to calm the applicant down such that he appeared to be satisfied.

17The other incident involved the applicant complaining that the staff had been rude to him and had served him the wrong coffee. Mr. Adamo said that the applicant was loud and was calling the staff member names such as “the queen of the store”. Mr. Adamo calmed the applicant down and replaced his coffee and provided a refund to him. It was during the course of this incident that Mr. Adamo’s cell phone rang as a result of a call by Joanne Verville, the pastry manager, on a matter unrelated to the applicant’s situation. Mr. Adamo said that he instructed Ms. Verville to provide to the applicant whatever coffee/refund would satisfy him. Mr. Adamo denied the statement attributed to him by the applicant to the effect that the applicant was a nuisance.

18Mr. Adamo emphasized that the two incidents in which he was involved in had nothing to do with human rights issues/discrimination, and that he was just following his usual practice of looking after customer complaints. He indicated that he had no idea where the applicant came from (i.e. Croatia) and that was irrelevant to his dealings with the applicant.

19Mr. Mastroianni testified that on receipt of the applicant's letter dated August 13, 2008, he addressed the applicant's complaints seriously and promptly. He contacted the applicant by both phone and e-mail, heard the applicant's complaints and gave the applicant assurance that his issues would be addressed. He then went to the Yorkville store and met with Mr. Adamo in order to determine whether there is any basis for the applicant's complaints. He concluded that there was not and that Mr. Adamo and the respondent’s staff involved in the incidents had acted properly.

20Mr. Adamo indicated that Mr. Mastroianni came to him after the applicant’s August 13, 2008 letter to find out about the incidents being complained of. Mr. Adamo related the incidents from his perspective and Mr. Mastroianni was satisfied with his dealing with the situation.

21Mr. Luchetta gave evidence as to his receipt of the applicant's letter dated September 17, 2008 and his response to it. Upon receiving the letter, Mr. Luchetta spoke to Mr. Mastroianni and learned of the applicant's previous letter and Mr. Mastroianni’s response to it. Mr. Luchetta did not wish to make a written response to the applicant until after he had discussed the issues with the applicant, and accordingly he left a voicemail for the applicant asking him to call. No return call was ever received. In cross examination, it was suggested to Mr. Luchetta that the voicemail that he had left was assertive, which he denied.

DECISION

22It is clear from the Tribunal's jurisprudence that in order for the applicant to be successful, there must be sufficient evidence to allow the Tribunal to find that it is more likely than not that discrimination occurred, whether it be direct discrimination or discrimination to be inferred from the facts put before the Tribunal. In this case, I find that the facts proven by the applicant are insufficient to prove discrimination on a balance of probabilities.

23In my view, the incidents complained of by the applicant involve issues of customer service which arise from time to time in the retail service environment. The respondent responded to the various incidents in a reasonable fashion with a view to satisfying the applicant as its customer. In so responding, there was no evidence of adverse treatment of the applicant on the basis of his ethnicity or any other prohibited ground. The allegations that his treatment by both staff and management (Italian and non-Italian) was in some way based on his personal background are without foundation. Although the applicant attempted to buttress his claim by reference to historical conflict between the Italians and the Croatians, there was no evidence that such considerations were in any way relevant to the conduct of the respondent and its staff. The applicant's perceptions of his treatment by the respondent must be grounded in the evidence so as to provide either evidence of direct discrimination or facts from which an inference of discrimination can reasonably be drawn. There was no such evidence put before the Tribunal in this case.

24The applicant placed great reliance on the alleged statement by Mr. Adamo to the effect that the applicant was a nuisance. Mr. Adamo denied that statement, however, even if it was made, it is not in and of itself evidence of discrimination on the basis of grounds included in the Code. The making of such a statement is perfectly consistent with a reaction by a manager having difficulty satisfying a demanding customer, and nothing else.

25It is clear that the respondent has addressed in a professional fashion the issue of prevention of discrimination and harassment under the Code, both in relation to its employees and its customers. While such general evidence does not necessarily preclude discriminatory acts occurring in the workplace, based on the evidence I heard, there is no reason to believe that the employees of the respondent were not aware of the prohibitions in the Code relevant to dealing with customers.

26With respect to the allegation of sexual solicitation, the requirement under section 7(3) of the Code that the person alleged to have made the sexual solicitation be in a position to “confer, grant or deny a benefit or advancement” was not made out in this case.

27Regarding the allegation of reprisal, section 8 of the Code requires that the reprisal be in relation to the claiming or enforcing of the person's rights under the Code, the institution and participation in proceedings under the Code, and any refusal to infringe a right of another person under the Code. The general allegations put forward by the applicant to the effect that he was known in the respondent’s store as a troublemaker or complainer do not satisfy these requirements.

28For all of these reasons, the Application is dismissed.