Green v. Ontario Healthy Communities Coalition, 2009 HRTO 447

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tricia Green

Applicant

-and-

Ontario Healthy Communities Coalition and Lorna Heidenheim

Respondents

case Resolution Conference DECISION

Adjudicator: Judith Hinchman

Date: April 17, 2009

Citation: 2009 HRTO 447

Indexed as: Green v. Ontario Healthy Communities Coalition

AppearanceS BY

Tricia Green, Applicant ) On her own behalf

Ontario Healthy Communities Coalition ) On her own behalf and Lorna Heidenheim, Respondents ) and on behalf of the ) organization respondent

INTRODUCTION

1This is an Application filed October 2, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in October 2006 and abandoned upon filing this Application with the Tribunal.

2This hearing was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal. To that end, the witnesses adopted their written statements filed in advance and the hearing proceeded with minimal examination and cross-examination.

NATURE OF THE DISPUTE

3The applicant was employed by the organization respondent Ontario Healthy Communities Coalition (“OHCC” or the “respondent”) for five years. She resigned on September 1, 2006 alleging duress suffered from discrimination in employment on the basis of colour, race, and family status.

4In particular, the applicant alleges that she suffered discrimination on the basis of family status because in the course of two performance reviews her status as a mother and the fact of her maternity leave were reasons for a small raise in the first instance and no raise in the second.

5The applicant who self identifies as a person of colour also alleges that she suffered discrimination on the basis of race and colour in that between November 16, 2004 and July 2006, she was not given a salary raise even though her job description expanded to include more duties and responsibilities.

6Finally, the applicant alleges that over the five-year period of her employment she was subjected to a poisoned work environment due to her race and colour.

7I find that the applicant has not established on a balance of probabilities that the respondents discriminated against her on the basis of colour, race, or family status.

Issues

8There are four issues in this case.

1. Did the applicant suffer discrimination on the basis of family status?
2. Did the applicant suffer discrimination on the basis of race and colour with respect to wage increases awarded between November 16, 2004 and July 2006?
3. Was the applicant subjected to a poisoned work environment due to her race and colour?
4. Did the employer meet its obligation to investigate discrimination once it knew or should have known of the applicant’s complaints?

BACKGROUND

9The OHCC is a non-profit organization, which operates from a central office in Toronto relying on a small core staff in Toronto and a few other employees working from their homes in other parts of the province.

10Ms. Green (the “applicant”) began at the OHCC on May 7, 2001 as an Administrative Assistant on a full-time basis (35 hours/week) at an hourly wage of $17.03. Throughout this period, the applicant reported directly to the OHCC’s Executive Director Lorna Heidenheim (the “personal respondent”, “Executive Director” or “ED”).

11On July 1, 2002, the applicant’s job title was changed to Administrative Co-ordinator and her job description was revised. She received a 10% raise to $19.10 an hour commensurate with new responsibilities for payroll and accounting. She required training to perform the payroll function and the OHCC arranged for training and on the job assistance.

12Shortly after July 2002, the applicant advised the personal respondent that she was pregnant. From October 16, 2002 to October 15, 2003 the applicant was on pregnancy and parental leave followed by a vacation until December 13, 2003. During her pregnancy and parental leaves the payroll training was interrupted. She resumed this training upon her return to work.

13On April 1, 2004, the applicant’s salary was increased 3% to $19.67 an hour.

14In September 2004, at her request, the applicant began working part-time so that she could pursue a master’s program at OISE. Each term the respondent permitted her to set her own hours based on her class schedule. Thus, her weekly work schedule varied from two to five days per week. The salary budgeted for her position was made available to her and she was responsible to use those funds to hire and supervise temporary administrative assistants to fulfill her job duties when she could not be there.

15On November 16, 2004, the applicant’s job description was revised and on December 1, 2004, the applicant’s salary was increased 1.5% to $19.97 an hour.

16As a result of the applicant’s part-time work, she did not complete the payroll training until May 2005.

17In 2005, the applicant asked the personal respondent whether she could further reduce her hours of work, and therefore her earnings, to qualify for the Ontario Student Assistance Program (“OSAP”) which had an income threshold. The personal respondent agreed.

18On May 8, 2006, at the applicant’s request, her job title was changed to Administrative and Finance Coordinator.

19In early August, the applicant requested and the ED approved a vacation from August 17 to September 1, 2006. While on vacation the applicant submitted a letter of resignation effective September 1, 2006. After submitting her resignation, the applicant contacted a board member and requested a meeting. The applicant met with two board members. Thereafter, she filed her complaint with the Human Rights Commission.

REASONS

Did the applicant suffer discrimination on the basis of family status?

20The applicant alleges that she was discriminated against on the basis of family status because in the course of two performance reviews her status as a mother and the fact of her maternity leave were the reasons she received only a small raise in the first instance and no raise in the second. She also alleges that the personal respondent discriminated against her by purposely giving her the wrong version of a parental leave benefits package rather than the more generous policy the applicant understood was in force.

Benefits policy for parental leave

21The ED agreed that, due to a mix-up, the applicant was given the wrong version of the benefits package applicable to her parental leave. The benefits policy was under revision to conform to legislative changes and two drafts were circulating in the office. After the applicant questioned the discrepancy, the ED ensured that the more generous version of the parental leave benefits package was provided.

22I am not persuaded that the applicant was given a wrong version of the benefits package because of her pregnancy. I find the personal respondent’s explanation that this occurred due to an innocent mistake to be credible. The applicant did not dispute that the ED apologized for the mix-up or that she received the more generous package. This allegation is dismissed.

November 2004 performance review

23On the November 2004 performance review, the ED noted it was the first conducted following the applicant’s return from maternity leave. The applicant states that it was not necessary to mention her maternity leave in the review and that the recent maternity leave was the reason that her salary increase was only 1.5%.

24The respondents submit that the maternity leave was noted only to explain the gap in review coverage periods. Without that explicit explanation, it might appear that a performance review was missing from the applicant’s file as there are none on record for May 2002 to December 2003 when she was on leave and vacation.

25Each of the applicant’s performance reviews specify a “review period.” These are listed as: October 21, 2001 – May 31, 2002; December 2003 – November 2004; and November 16, 2004 – July 11, 2006. The respondents’ explanation is logical and I accept the purpose of the notation was for record-keeping only. I am not persuaded that this record-keeping practice played a part in the applicant’s review and resultant salary increase. Her review and the employment record submitted in this case contain sufficient detail of her performance to explain the ED’s decision to give the applicant a 1.5% raise. This allegation is dismissed.

July 12, 2006 performance review

26Under “Achievements” on the July 12, 2006 performance review, the ED wrote “managed essential functions despite educational and family pressures; high degree of conscientiousness displayed.” The applicant alleges that during the meeting, the ED stated “in my opinion you do not deserve a pay increase because of the time away from the office for maternity and education leave of absence.” The applicant submits that the reference to family pressures in the written review and the alleged comment about her maternity leave were discriminatory.

27The personal respondent testified that the written comment referred to the fact that the applicant’s aunt was ill and the distress she thought this had caused the applicant. She meant the comment as a positive reflection to recognize that under those circumstances, the applicant showed resiliency, dedication, and a strong work ethic. Ms. Green did not dispute that her aunt had been ill at that time. Under those circumstances, I accept the ED’s explanation for the written comment. There is no evidence that suggests to me that this reference to a family matter was a factor in the applicant’s salary evaluation. Although a family matter was mentioned in the evaluation, I accept that it was considered in a positive rather than negative way and therefore not discriminatory.

28The personal respondent denies making the alleged remark about the applicant not deserving a pay increase. She admits that she may have said the applicant was not performing her job as described when created in July 2002. To explain, the ED testified that when she agreed to further reduce the applicant’s hours to two days per week to allow the applicant to qualify for OSAP, she was concerned about how manageable this would be. Even with the assistance of temporary assistants, the applicant’s work was not getting done. The personal respondent testified that she sometimes completed this work herself during this period. The chair of the OHCC’s board corroborated this testimony.

29She felt, however, that having supported the applicant’s education goals that far she wanted to continue to be supportive. Furthermore, she felt that the two of them were a team working together to ensure that the applicant could succeed at the OHCC. As her supervisor she felt it was appropriate discuss the situation and performance strategies with the applicant.

30After considering the conflicting testimony of the applicant and the ED, I am persuaded that the ED did not make the alleged remark. The ED’s testimony is consistent with the circumstances of the organization; a small not-for-profit organization with budgetary constraints that was also trying to be flexible with the applicant who was having difficulty completing tasks during this period.

31Concern about the applicant’s ability to fit in both a master’s degree program and her responsibilities at the OHCC, even at a reduced schedule, was a reasonable management reaction to the situation and consistent with the OHCC Personal Policy & Procedures Handbook (the “Handbook”) guidelines for performance evaluation meetings, which encourages discussion of work strategies.

32I conclude the written comments and any verbal comments that the ED made regarding the applicant’s inability to complete her tasks while at school due to the limited hours available to her were observations appropriate to a supervisor discussing work performance. Under the circumstances of this case, comments of this nature do not support an allegation of discrimination based on family status. This allegation is dismissed.

Did the applicant suffer discrimination on the basis of race and colour with respect to wage increases awarded between November 16, 2004 and July 2006?

33For the reasons stated below, I am persuaded that the employer was under financial constraint during the relevant period. Consequently during that period, it did not give any staff raises and thus I find that the applicant was not treated differently than other employees respecting salary raises.

34The OHCC budget statements show that to balance the budget in fiscal year 2004-2005, $12,000 was required from reserve funds. The following fiscal year 2005-2006, $30,000 of reserve funds were required to balance the budget. The budget for 2006-2007 reflected that total revenue declined that fiscal year from $687,656 to $405,000. These undisputed financial statements support the respondents’ position that the organization faced increasing budget shortfalls. A staff salary chart was submitted showing that no staff received increases during this period and that, between December 31, 2003 and 2006, four positions were terminated. The applicant was handling payroll during this period and did not refute this evidence.

35The applicant suggested nonetheless that the employer used other funds to increase staff compensation after October 17, 2005. She points to October 17, 2005 staff meeting notes regarding an offer that the personal respondent made to the staff to earn a portion of a $30,000 sum. The undisputed evidence, however, is that these additional funds were available under an existing grant only until March 2006, that the staff who applied for additional hours under the grant were given extra weekly hours until the grant expired in March 2006, that no one received an hourly pay increase, and that the opportunity was offered to the applicant but she declined. In other words, this was not a salary increase but just an short-term opportunity to work additional hours at the normal hourly rate, which was offered to all staff including the applicant.

36The applicant also alleges that as a person of colour she was paid differently than a white contract employee who performed some of her work while she was on pregnancy and parental leave. During this period, the payroll was outsourced to the contract employee for $20 an hour compared to the applicant’s November 2004 hourly salary of $19.97.

37The respondents agree that while the applicant was on this leave, a contractor was paid to do some of her work. They submit though that the applicant’s total remuneration including health and dental benefits and a 5% RRSP payment placed her salary above the remuneration received by the contractor. This evidence is not disputed. Thus the evidence does not support that the applicant was discriminated against when compared to the contractor’s remuneration.

38During the period in question, the applicant was not treated differently than other employees respecting salary raises or the hourly rate paid to the contractor hired during her pregnancy and parental leave. I find that the applicant did not suffer discrimination in the salary that she received on the basis of race and colour between November 16, 2004 and July 2006. This allegation is dismissed.

Was the applicant subject to a poisoned work environment due to her race and colour?

39The specific conduct alleged is that because of her race and colour:

1. The applicant was required to do more work than other employees in order to prove her capability.
2. The Executive Director spoke to the applicant in a harsh and disrespectful tone. And following any complaints about salary or workload, the tone become more poisoned both in private and in front of other employees.
3. The Executive Director questioned the applicant’s professional reputation and scrutinized and monitored the applicant’s performance more closely than co-workers.
4. A white employee was allowed to take a financial planning course at Ryerson without conditions, whereas the personal respondent told the applicant that the OHCC would only pay for the same course if she would agree to stay on the job for at least one year to make it beneficial to the organisation.
5. The applicant was the subject of tokenism when the OHCC made her a public display of their community diversity and inclusion work.

The Applicant’s workload

40The applicant did not submit any evidence about the workload of others to show that hers was greater. Mr. Koch’s testimony was that he was required to do essentially the same amount of work and that everyone was expected to work hard when financial deadlines neared. Mr. Koch worked with the applicant for a year and eight months and during most of that time the central office staff consisted of Mr. Koch, the applicant, and the ED.

41The applicant did not submit any evidence to suggest that others would have been or were treated differently than she when promoted. The evidence is that the applicant’s job duties increased in July of 2002 when her position changed from Administrative Assistant to Administrative Co-ordinator. New duties included handling and recording financial transactions; using a computerized accounting system; and supervising volunteers, job experience placements, and temporary staff. Commensurate her salary was raised 10% to reflect this increased responsibility and she was provided approximately $4,000 worth of training and assistance from an external organization to enable her to complete her new job duties. The applicant’s job descriptions submitted support that thereafter her job changed only minimally and again there is no evidence that this was any different treatment than other employees.

42Furthermore, the evidence supports that the respondents were supportive regarding their expectations of the applicant. For example, when at her own request she began a part-time educational leave, OHCC supported her by providing funding for temporary assistants to help with her job tasks. When necessary, the ED completed tasks without penalizing the applicant. During her educational leave the applicant asked that her hours be further reduced to two days per week so that she could qualify for OSAP assistance. The ED has testified about her concerns about the applicant’s ability to manage her studies and her OHCC commitment but the applicant convinced her she would be able to manage.

43In March 2006, the OHCC moved. After the move, the applicant submitted 72.5 hours of overtime. The ED was not convinced the overtime had been was necessary and thought that if she had been informed they could have found other solutions. The OHCC’s overtime policy does not permit an employee to accumulate more than 21 hours of overtime in any period without permission. She had reviewed this policy with the applicant on a few occasions and it is included in the Handbook. In the end, given the applicant’s diligence and conscientiousness in managing many aspects of the relocation, she allowed the hours to be taken as time in lieu. There was no evidence that this treatment of overtime was harsh when compared to how others were treated. In fact, it appears from the evidence that the respondents were generous to the applicant relative to the OT policy.

44On a balance of probabilities the evidence does not support that it is more likely than not that the applicant was expected to do more work than others because of her race and colour or even at all.

45The applicant alleges that the Executive Director spoke to her in a harsh and disrespectful tone that employees who were not of colour were not subject to. And following any complaints about salary or workload, the tone become more poisoned both in private and in front of other employees.

46The applicant submitted two letters dated December 5, 2008. Neither letter is signed. The applicant testified the first letter was written by Anna Jacobs, a co-worker for one year from May 2001 to June 2002. Ms. Jacobs writes that she remembers encountering the applicant crying in the washroom. She states that she does not recall all the circumstances but does remember that Tricia told her the personal respondent had called her belligerent and the applicant appeared to be in a lot of pain. Ms. Jacobs does not identify the date of this incident. And Ms. Jacobs does not comment further on the working relationship between the applicant and the ED.

47The applicant testified that this incident followed a meeting between her, the ED, and Ms. Jacobs. They were discussing the applicant’s initiative to insert past newsletters into member packages. The ED began to lecture her, asked Ms. Jacobs to leave, and then spoke to the applicant about her attitude, told her that she was belligerent and that she had questioned her authority. The applicant found this shocking and left the meeting. She went into the washroom and cried where Ms. Jacobs found her.

48The applicant identified the author of the second letter as Valerie Gennings. Ms. Gennings’ employment overlapped that of the applicant from May 2001 until October 2002 when the applicant began her pregnancy leave. During her leave, Ms. Gennings’ employment with the OHCC ended in April 2003. She writes that the applicant was not treated respectfully or as an equal member of the staff, that the ED did not respond to her input respectfully, and that her voice tone and manner toward the applicant was abrupt.

49The applicant also stated that once at a board meeting when she asked a question, the personal respondent told her “your job is just to take minutes.”

50Finally, the applicant testified that the tone of her written performance reviews were disrespectful. This reaction is confirmed in the Employee’s Comments section of the July 2006 review where she wrote she did not agree with the “comments or the tone implied in the comments.” She also felt that during the July 2006 performance review meeting the ED was disrespectful.

51The applicant testified that prior to that meeting, she felt that she deserved a pay increase and conducted an online salary survey of comparable positions. She brought to the meeting materials printed from Monster.ca and CharityVillage.com web sites. When she began discussing the salary comparisons she had found online the tone of the meeting became “toxic” and she testified that the Executive Director told her that she would be “more than welcome” to leave the OHCC and apply for another job and that she would be able to find someone else who would be glad to accept Ms. Green’s salary. The applicant alleges that this was one of many times she was informed that she could be easily replaced.

52The ED testified that her conduct with the applicant reflected a professional employer-employee relationship and that she made sacrifices to accommodate the applicant’s needs and requests and treated her as valued and respected. She denies speaking to the applicant in a harsh tone or disrespectful way. In her view the applicant was sometimes challenging and argumentative. Often when the applicant presented an idea the ED disagreed with she would continue to press the point. She recalled having conversations with the applicant on two or three occasions regarding her attitude toward the ED. These occasions always “followed incidents in which [she] had to correct an error the [applicant] made.” The applicant responded defensively.

53The respondents object to the two unsigned letters arguing that without knowing who wrote them, they had no opportunity to prepare a response to these pieces of evidence. Furthermore, they submit that Ms. Gennings’ letter is not reliable because during her employment she only worked at the central office for a period of two months and was rarely in the office during that time as well. This was not disputed. She therefore would have had only a very short opportunity to observe the working relationship between the applicant and personal respondent.

54Nonetheless, they do not dispute that the meeting and incident described by Ms. Jacobs happened. The ED testified that she felt there was a difference in understanding about roles and expectations but that when after that occasion the applicant told her that she had spoken harshly, the personal respondent apologized.

55It is not helpful that the two co-worker letters were not signed as the respondents were not able to fully respond to them. However, as the respondents do not dispute the washroom incident and prior meeting, I am prepared to accept the applicant’s evidence about this incident and Ms. Jacob’s letter.

56On the other hand, I do not find the letter from Ms. Gennings to be reliable because it is not disputed that she was not present at the office during much of the applicant’s employ. For a period of one year and eight months the Toronto office staff consisted of the applicant, the personal respondent, and Andrew Koch. Andrew Koch, previously a volunteer at OHCC, took over some of the applicant’s responsibilities during her pregnancy and parental leave. Upon her return from leave, Mr. Koch assumed a different staff position. Mr. Koch testified that the office was small, and that he and the applicant interacted daily. His observation was that the personal respondent did not speak to the applicant differently than other staff. His view was that they had cordial relations with a few “heated” discussions that focused on work-related issues usually near deadlines. He also said these appeared to be back and forth discussions rather than one-way directives from the ED. Finally, he testified that at staff meetings when those who worked from home came to the central office, he did not notice any difference in ED communications to the applicant than to the other staff.

57Ms. Gennings did not have much of an opportunity to make the observations her letter reports and Ms. Jacobs’ letter does not comment on the relationship except for the one washroom incident. On the other hand, Mr. Koch who for a year and eight months worked in the office at the same time as the applicant had a greater opportunity to observe the office relationship between the applicant and the personal respondent. And his opportunity was more recent from January 2004 August 2005, whereas Ms. Gennings’ employ overlapped for only a brief period prior to the applicant’s leave in October 2002. Therefore, regarding the general office relationship between the applicant and the ED, Mr. Koch’s testimony carries greatest weight for me.

58Testimony from Ms. Lupson and Mr. Gessie, a board member and a former board member, was that during board meetings the applicant was treated respectfully and that the ED often praised her work. The applicant stated that she received positive feedback in emails and good comments from board members as well as other staff that made her feel appreciated by the organization.

59The ED testified and the applicant agreed that the July 12, 2006 performance review began with the ED stating that she would like to give the applicant a salary raise. Her response to the salary comparisons produced by the applicant was that “she would understand should the [applicant] feel she needed to leave the OHCC to obtain a higher paying position.” The respondents assert that “the ED was referring to the well-known fact that small not-for-profit organizations generally pay lower than the private or government sectors.” Furthermore, the ED does not “recall telling the [applicant] that she would be easily replaced, but does recall telling [her] many times that she was much appreciated and valued.”

60I am persuaded that the parties had some conversations where they disagreed. This is as would be expected in a normal working relationship. I accept that the incident leading to the applicant crying in the washroom was upsetting to her. It is not disputed that the personal respondent apologized for this incident. The evidence does not suggest that this incident and a few conversations of disagreement over work related topics formed a pattern of behaviour of harsh treatment. Furthermore, Ms. Lupson and Mr. Gessie’s evidence supports that the ED did not treat the applicant in a disrespectful manner during board meetings. Even if it is true that the ED said “you are here to take notes” at one board meeting, even when coupled with the washroom incident and normal work related disagreements, these are insufficient to support a pattern of harsh treatment.

61On the contrary, the overall picture developed by the evidence is that the ED’s tone with the applicant was for the most part respectful.

Monitoring of job performance and professional reputation

62The applicant alleges that she received extra scrutiny due to her race and colour. She submits that no other staff member had constant meetings with the ED. She testified that every meeting included summary charts and deliverables with deadlines. She also alleges that because some performance reviews report that she did not get the job done, her professional reputation was questioned. To support this view, she relies on a note to the file dated October 11, 2001 from the ED expressing some concerns about lack of attention to detail and quality control.

63Mr Koch’s testimony was that when he performed the applicant’s job while she was on leave, his financial work was regularly scrutinized. He stated that when the applicant returned and he became the Communications Coordinator he was scrutinized in the same way – he had work plans with deliverables and time lines. And he continued to meet regularly with the ED to discuss how to meet the role expectations.

64The OHCC Handbook recommends formal written performance evaluations to cover job responsibilities, working conditions, remuneration, areas for improvement, recognition of strengths, performance objectives and strategies for achieving those objectives. In addition, the Handbook states that staff will submit annual work plans to be approved by the Executive Director and encourages supervisors and employees to engage in daily discussions of job performance and goals.

65The ED testified that all staff work plans used the same format with deliverables and due dates and as well all staff were offered the same opportunities to discuss support when needed. Ms. Lupson testified that from time to time she reviewed OHCC performance appraisals and her recollection is that the applicant’s and other staff members’ appraisals all follow a consistent format.

66I conclude the applicant was monitored similarly to Mr. Koch and in keeping with the Handbook guidelines for performance reviews and discussions. There is no allegation or evidence that the Handbook guidelines are in any way discriminatory. There was no evidence that any other staff were treated differently. There is no evidence the ED subjected the applicant to a different standard for performance or on her performance reviews.

67The fact that the Executive Director would write a note to the file documenting performance concerns or would indicate areas of weakness in performance reviews does not in and of itself raise an inference of discrimination. And in fact, the applicant’s later performance reviews reveals that these are, for the most part, positive reviews describing the applicant as capable, conscientious, creative, highly efficient, thorough, and professional.

68In the applicant’s July 12, 2006 review, the Executive Director compliments the applicant but notes the applicant required further training on accounting and that the part-time work schedule during her educational leave had resulted in the applicant not being able to complete all job duties. I conclude that the ED’s observation was merely reciting a factual situation. It was not a discriminatory comment.

69I find that on a balance of probabilities the evidence does not support that the Executive Director was discriminatory in her scrutiny or monitoring of the applicant’s job performance.

Opportunity to take off-site course paid for by employer without conditions

70The applicant alleges that Mr. Koch, a white male, was allowed to take a financial planning course at Ryerson. She alleges discrimination based on her colour because the Executive Director told her that the OHCC would only pay for her to take this course if she would stay for at least a year whereas it had not required that condition of Mr. Koch. The respondents deny and Mr. Koch testified that he did not take a financial course at Ryerson. There is no evidence that he actually took the course and I have no reason to disbelieve Mr. Koch’s testimony on this point.

71The respondents submit that the subject of the applicant taking a financial planning course arose after she stated that she would like to make a career change. The ED “advised that if [the applicant] was to receive financial training it would need to be cost effective for the OHCC.” She does not dispute that OHCC would only pay for an off-site course if an employee would commit to staying with the organization for a year. She submits this is a reasonable business decision as paying for off-site courses is an investment and in her opinion any business would expect a reasonable return on that investment. In these circumstances, a small not-for-profit organization with the revenue challenges earlier discussed, I am persuaded that the ED did not make this decision based on the applicant’s race or colour but instead based on the organization’s budgetary considerations and would treat similarly any employee’s request for payment of an off-site course. In fact, it is undisputed that when Mr. Koch requested further training prior to a planned departure, they denied the training because he was leaving.

72After Mr. Koch became Communications Coordinator, he was given on the job training, however, in two communication software programs. The applicant received similar on the job training in accounting and payroll, which cost the employer roughly $4,000.

73I do not find any differential treatment with respect to either off-site course opportunities or on the job training opportunities. As noted earlier, I am persuaded that the ED’s rationale for requiring a one-year commitment was a business decision that would be applied across the board and not related to Ms. Green’s colour or race.

Tokenism

74The applicant asserts that her service on the OHCC’s diversity committee and photos of her at the workplace were motivated by the employer’s desire to further its public image as racially diverse.

75The respondents assert the applicant participated on the diversity committee because it was a staff committee and her job tasks included this responsibility. After the committee developed a “Tool Kit,” funding was sought to test that kit in four communities. When funding was secured, a province–wide project committee was formed to oversee this work: the “Creating Inclusive Community Organizations (CICO)” project committee. This was not an OHCC staff committee but rather a province-wide committee with members from various interested organizations. In the meantime, the OHCC staff diversity committee was suspended.

76The applicant agreed that she wanted to serve on the CICO project committee. Initially this request was refused as not appropriate given that the new committee was not a staff committee. The ED was also concerned that this would be another imposition on the applicant’s already limited work hours. The project coordinator, however, requested that the applicant participate and the personal respondent acquiesced although in November 2004 she asked the applicant to reduce her CICO activity to focus on OHCC’s financial statements.

77The applicant stated that she wanted to attend more CICO meetings yet could not because of her work including payroll, financial reports, and budget requests. So often she decided not to attend. The ED agrees she told the applicant that financial tasks were the priority and left to the applicant’s judgment as to whether or not she had the time to attend CICO meetings in keeping with the OHCC’s Flex Time policy.

78The evidence simply does not support a conclusion that the OHCC requested the applicant’s participation on either committee as a token of racial diversity. Rather, the evidence supports that the diversity committee was a staff committee and the applicant’s participation on that committee as administrative support staff was expected as part of her job. With respect to the CICO committee, the applicant clearly wanted to participate on this committee and wished that she could attend more meetings. She did not dispute Mr. Koch’s testimony that all staff were given leeway under the Flex time policy to manage their schedules so as to permit participation in activities that interested them.

79With respect to the photos, several of the photos submitted include other persons of colour and thus do not support this allegation. A few photos show the applicant as the only individual of colour. With respect to one photo, the undisputed evidence given at the Case Resolution Conference was that another staff member asked her to be in that photo along with other members of the diversity committee because the staff person did not want to leave the applicant out of receiving any credit for that committee’s work. The respondents state that the photos were displayed in an Annual General Meeting report that was not widely and publicly circulated, and that photos of staff are also routinely used in staff newsletters. I am not convinced on this evidence that the photos had the effect of tokenism.

80Racial discrimination can be subtle and allegations must be examined looking at the entire context. The applicant has alleged that she experienced a poisoned workplace due to race and colour. I have found that her particular complaints are not supported by the evidence. But even looking at all the allegations as a whole, I am not satisfied a pattern of discrimination or harassment is established. Rather, the picture which emerges is that the applicant was a respected and valued employee working in a small non-for-profit organization that relied on unpredictable funding and, due to the nature of its funding, from time to time faced time constraints. Nonetheless, when the applicant requested modified scheduling to pursue further education, respondents supported that request and provided additional supports and granted flexibility to the applicant. There may have been occasional disagreements between the applicant and her supervisor the Executive Director, these however do not rise to the level of discrimination under the Code.

Did the corporate respondent fail a duty to investigate?

81The respondents assert that the applicant never complained to the Executive Director about discrimination. The personal respondent states that because she was not told of any discriminatory behavior she was not able to respond or investigate. Further, she does not believe that she could have known of any concerns of discrimination. The Executive Director believes that she provided ample opportunity for the applicant or any staff member to complain to her of such treatment. She testified that she treated performance reviews as mutual exercises. Part of her practice to further this goal was to circulate a draft agenda containing the content of the upcoming performance review to the employee and ask for input or changes. This practice is not disputed and conforms with the Handbook guidance on performance reviews.

82After the July 2006 performance review, the Executive Director suspected the applicant was unhappy and so she offered to meet again. Instead, the applicant asked for a vacation and this request was approved. During the vacation the applicant submitted her resignation. The personal respondent feels that she did not have an opportunity to explore the applicant’s concerns. She testified that if she had been asked to address an issue she would have, just as she had always responded in the past to requests.

83The respondents submit that the first time they understood that the applicant felt discrimination had occurred was when she raised it with two board members after her resignation. At that time those board members met with the applicant for two hours. Ms. Lupson testified that they then fully investigated her concerns. She testified that the board set up a committee to investigate, interviewed staff, and hired outside advisors to present a third party view and to consult on procedure. They were to meet a second time with the applicant on October 13, but she cancelled that meeting because of a death in the family. She was invited to reschedule at her convenience. She did not contact the board for a second meeting instead filing her complaint.

84My conclusion is that the respondents did not fail in their duty to investigate the applicant’s concerns once they became aware of them. On the contrary, they instigated several steps to investigate her concerns and address any issues that arose, as well as attempting to include the applicant in the process with a second follow-up meeting planned.

85Prior to the applicant’s resignation the respondents genuinely did not know the applicant considered her treatment discriminatory. The applicant raised her issues about the Executive Director’s attitude toward her directly with the personal respondent. There is no evidence the applicant framed the issues as being connected to her race, colour or family status. Her comment on the July 2006 performance review does not make this connection. The two women discussed her concerns and in one case the Executive Director apologized for her behaviour. The applicant did not pursue those concerns with the Executive Director or any of the board members. Rather it was the Executive Director who attempted to pursue and discuss further what she sensed was the applicant’s unhappiness. Before they could meet, the applicant sought and was granted a vacation. The personal respondent expected to be able to meet with the applicant after her vacation but the applicant resigned rather than return to the workplace.

Conclusion

86For all these reasons, I find that the applicant has not established on a balance of probabilities that the respondents discriminated against her on the basis of colour, race, or family status.

87The Application is dismissed.