Houdeh Houshangi v. Ontario Power Generation Inc. and Lloyd Spitzig, 2009 HRTO 1828

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Houdeh Houshangi

Applicant

-and-

Ontario Power Generation Inc. and Lloyd Spitzig

Respondents

decision

Adjudicator: Brian Cook

Date: October 30, 2009

Citation Number: 2009 HRTO 1828

Indexed As: Houshangi v. Ontario Power Generation

APPEARANCES

Houdeh Houshangi, Applicant ) On Her Own Behalf

Ontario Power Generation Inc. and ) Helen Daniel, Counsel Lloyd Spitzig, Respondents )

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed by Houdeh Houshangi. The applicant alleges that she was subjected to sexual harassment during her employment with Ontario Power Generation Inc. (“OPG”).

2The Application was heard on October 13, 2009. With the consent of the parties, the hearing proceeded with my questioning the applicant. Ms. Daniels had some supplementary questions. I then heard from and questioned the personal respondent who was also questioned by Ms. Daniels and the applicant.

Decision

3For the reasons that follow, I conclude that the applicant was not subjected to sexual harassment in the course of her employment with OPG.

Background

4The applicant described her educational and employment background. She has a Masters in Engineering from a university in England and worked for 20 years in Sweden including five years with the Volvo Corporation. She moved to Toronto in 2005 because her son wanted to attend the University of Toronto. After arriving, she took a university level course followed by a co-op program and worked for a few different employers. In May 2007, she applied for a position at OPG. She was interviewed in May and started in July 2007. The position involved filling a maternity leave that lasted for approximately one year. The applicant testified that she knew that the contract was for one year but she was not initially aware that it was a maternity leave.

5The department where the applicant was employed provides IT support to the larger organization. At the time, the personal respondent was the acting supervisor.

6The first time that the applicant felt that she was harassed was within a week or so of starting the job. A group of the department employees were walking back from a meeting. The personal respondent was walking with the applicant and started to talk about an apartment that he had just moved into. He described the apartment, including the bedroom, and discussed the type of bed that he was thinking of buying. The applicant felt very uncomfortable about this discussion although she did not say anything to the personal respondent. The personal respondent testified that in July 2006 he had moved and may well have had conversations with people at work about the apartment but he did not recall specifically speaking to the applicant about his apartment.

7The applicant testified that on more than one occasion the personal respondent talked about things that he had done on the weekend and asked the applicant what she had done. He often encouraged her to speak to other workers in the department and generally talked to her at least once a day. He would sometimes come to her desk to show her something on the computer. He sometimes knelt on the floor beside her to see the computer screen. She felt uncomfortable about this and felt he should sit on a chair.

8On various occasions, the personal respondent organized department meetings that were followed by the group going for lunch. She did not feel comfortable going to lunch with her co-workers and usually declined to attend the lunch. The personal respondent confirmed this and testified that while he wanted to create a friendly work environment, the applicant was not pressured to join the others for lunch.

9The applicant felt uncomfortable discussing her private life. She explained that in her experience, the culture in workplaces in Sweden is very different than it is in Canada. In Sweden, and in particular at Volvo, there was a sharp delineation between work life and personal life. In her experience, discussions at work were limited to matters related to work. Co-workers would not discuss their personal lives at work. At OPG, and other places she has worked in Canada, she has found that the culture is quite different. People at work often discuss their personal lives at work and expect her to do the same. This expectation makes her uncomfortable. During her employment with the corporate respondent, she was dealing with a serious personal issue involving her son’s health and did not mention this to anyone at work until one time in the winter when she needed some time off to take him to a medical appointment.

10The applicant testified that the most serious harassment that she experienced occurred at a health and safety meeting. These are mandated meetings that occur quarterly. Employees assemble in an auditorium to hear a presentation and sit on folding chairs. The applicant attended one of these meetings and sat at the back of the room. The personal respondent came and sat beside her. During the meeting, she noticed that his shoulder was touching her shoulder. She moved to avoid the contact but she again noticed that his shoulder was still touching her shoulder. The applicant testified that the personal respondent then moved his legs in a way that she found very disconcerting.

11The applicant was reluctant to elaborate about the nature of the leg movement. However, she indicated that she has subsequently had a similar experience at a public library. On at least three occasions, different males have sat at the table in the library where she was working and have moved their legs in a similar disconcerting manner.

12The personal respondent testified that he could not recall sitting beside the applicant at a health and safety meeting but he indicated that he might well have done so. He could not recall if his shoulder might have touched the applicant’s shoulder but he agreed that this might have occurred because the chairs are narrow and are usually set up without much space between them.

13In her Application, the applicant mentioned that the personal respondent sometimes bought flowers for her. At the hearing, it was clarified that the personal respondent does buy flowers from a vendor on the street and brings them into the workplace. However, they are generally distributed, and the applicant agreed that the personal respondent did not single her out for receipt of the flowers.

14The applicant alleges that the personal respondent began to be very critical of her work. The personal respondent testified that there were performance issues that he had to address although he emphasized that he always tries to give constructive criticism. The applicant testified that she did not feel that the criticism was always constructive.

15At some point in the time when the performance issues arose, the personal respondent invited the applicant to have coffee with him. The personal respondent testified that he had been advised by someone in the Human Resources department that it might be helpful to talk to the applicant outside of the workplace environment. The applicant however, was not comfortable with the invitation. She testified that she was concerned that it might lead to discussion of personal matters.

16As the one-year contract grew to a close, the applicant was hoping that she might be able to secure another contract or perhaps permanent employment. She testified that the personal respondent had told her that this was a possibility when she started the contract. The personal respondent testified that permanent employees are often recruited from contract workers. In July 2008, when the applicant’s contract ended, there were no openings in his department. He also testified that he does not make hiring or firing decisions, although he would typically be consulted.

17On July 10, 2008, about two weeks before the end of the contract, the applicant was told that she was assigned to work from home, with no expectation of any work obligations.

18Prior to this and subsequently, the applicant asked the personal respondent for help in finding a new job. On Saturday, July 12, 2008, the personal respondent sent the applicant an email offering to meet her at a coffee shop “to chat” because he might be able to “give you some good ideas how to most easily transition to whatever your next work will be.” He gave her his cell phone number and asked her to call. He indicated that he had a contact phone number for her but was “not sure if you prefer that I use it.”

19The applicant testified that she felt uncomfortable about this email and she did not respond to the invitation. However, on Tuesday, July 15, she sent an email to the personal respondent asking for his help in finding a job, adding, “I am feeling awful and do not know what to do.”

20The personal respondent did not reply to this email. He testified that on Monday, July 14, he had discovered some irregularities about work that the applicant had done and that it looked like important data had been erased. The applicant denied that she had erased data. It is not clear if this issue was ever resolved.

21The personal respondent confirmed that he had sent the July 12, 2008 email inviting the applicant to meet for coffee on Sunday, July 13. He indicated that he was feeling sorry for the applicant because she was clearly distraught about the end of the contract and wanted to give her advice.

Conclusions

22The Application alleges sexual harassment in employment. Section 10(1) sets out the definition of harassment:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

23I appreciate and accept that the applicant felt uncomfortable as a result of some of her interactions with the personal respondent. However, I cannot conclude that the personal respondent was engaging in a course of vexatious comment of conduct that he knew or ought to have known was unwelcome.

24On the basis of the available evidence, I am satisfied that the personal respondent attempted to create a collegial working environment in the department. This was important because it was a small department and he believed its success depended on the people in the department working together. To this end, he encouraged people to socialize during work time, for example having lunch together after work-related meetings. He did not discourage people from having appropriate conversations about their personal lives and did so himself.

25It is clear that the applicant was not comfortable with the culture of the workplace. She acknowledged that this was primarily because it was a different culture than she had experienced in Sweden. As well, she described herself as a reserved and private person.

26The applicant conceded that the personal respondent never said anything that she interpreted as sexual solicitation or invitation. It was difficult to assess the applicant’s view of the “shoulder touching” incident. It appeared that her greatest concern was the leg movements that followed the shoulder touching. With regard to the shoulder touching, I note that the chairs that the applicant and personal respondent were sitting in were close together. I accept that the personal respondent’s shoulder touched the applicant’s shoulder but there is no evidence to suggest that there was anything inappropriate about this. In regards to the leg movements, the applicant was unable to describe the leg movements or explain why they were inappropriate. I also find that it is relevant that the applicant has subsequently had a similar experience with three other males unconnected with the workplace. In my view, this suggests that the applicant may be particularly sensitive to certain leg movements and makes it less likely that there was anything objectively inappropriate about the way the personal respondent moved his legs.

27In my view, the fact that the personal respondent sometimes crouched down at the applicant’s desk to look at the applicant’s computer is not evidence of harassment. I accept the personal respondent’s evidence that it was simply a quick and efficient way of supervising the work on occasions that required only a brief interaction.

28In my view, the purpose of the email the personal respondent sent on Saturday, July 12, 2008, with the offer to meet to chat on the Sunday, July 13 is plain from the email itself. It was a personal offer to help the applicant who the personal respondent knew was having a hard time with the fact that her contract was coming to an end and that she would be unemployed. The applicant had asked the personal respondent for help in this regard on several occasions. The email indicates that the personal respondent was not sure if the applicant would want him to phone her home and asks how best to contact her. The evidence shows that the personal respondent did not have authority to offer the applicant employment and in any event there were no vacancies in the department. In my view, the July 12, 2008 email cannot be said to be evidence of vexatious comment or conduct that was known or ought reasonably to have been known to be unwelcome.

29In assessing the available evidence, I find that there is no evidence to support the allegation that the applicant was subject to sexual harassment in her employment with the corporate respondent. On that basis, the Application is dismissed.