Hwang v. 1636914 Ontario, 2009 HRTO 451

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hwasoon Hwang

Applicant

-and-

1636914 Ontario Inc. o/a Cinnamon Grove Café and Deli,

Louy Mouzakis and Adriana Rossi

Respondents

Case Resolution Conference DECISION

Adjudicator: Mark Hart

Date: April 16, 2009

Citation: 2009 HRTO 451

Indexed as : Hwang v. 1636914 Ontario

APPEARANCES

Hwasoon Hwang, Applicant ) Self-represented )

1636914 Ontario Inc. o/a )

Cinnamon Grove Café and Deli, ) Self-represented

Louy Mouzakis and Adriana Rossi, Respondents )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated October 23, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 2, 2007.

2The Case Resolution Conference (hearing) in this matter was held on February 23, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. As none of the parties were represented by counsel, I took the lead in questioning the witnesses and heard from the applicant, the two personal respondents and four witnesses, including one by telephone. The applicant was assisted throughout the hearing by a Korean interpreter.

3The applicant commenced employment as a cashier with the respondent company in February 2006 at a small café and deli operated on the main floor of an office complex. The personal respondent Mazoukis is the owner of the business, and the personal respondent Rossi is the head chef.

4The self-drafted complaint alleges that the applicant experienced discrimination in employment because of race, ethic origin, sexual orientation and age. The complaint also alleges sexual solicitation. No evidence was led to support any allegation of discrimination because of age or sexual orientation, which generally refers to a person being or perceived to be gay, lesbian, bisexual or transgendered. There also was no evidence led to support that any sexual solicitations were made to the applicant, although the complaint and her evidence did include reference to sexual comments alleged to have been made in the work environment. I will consider this evidence in the context of whether the applicant experienced a poisoned work environment as a result of the alleged sexual comments.

5The principal ground of discrimination advanced by the applicant at the hearing was that she experienced discrimination because of her race and ethic origin. The applicant is Korean and came to Canada 13 years ago. She alleges that she experienced racial discrimination by the respondents as a consequence of what she describes as inhumane treatment of her which ultimately led to the termination of her employment in June 2007. The allegations in the complaint include: that she was wrongly suspected of stealing from the company; that she was called names by the personal respondent Rossi and told that she couldn’t speak “good English”; that she was never allowed to take her lunch break with the other employees and there would be no food by the time she was allowed to take her break; and that she was unfairly blamed and ultimately terminated for an altercation between herself and Rossi. I will address each of these allegations in turn.

Allegation re being wrongly suspected of stealing

6The complaint alleges that every time the applicant used to go to the washroom, she was followed by Rossi. It is alleged that when asked why she was being followed, Rossi said that she had been told by Mazoukis to check on the applicant to see if she was stealing any money from the cash. The complaint alleges that Rossi also used to check the applicant’s pockets.

7In her evidence at the hearing, the applicant said that this happened almost every day and happened throughout the one and a half years that she worked there. When asked for specifics, the applicant made reference to some typed notes that she brought with her to the hearing which were written in Korean. These notes were translated with the assistance of the interpreter. These notes record that for a brief period during the early stages of her employment, there were a number of incidents where the applicant was questioned about what she had put in her pocket.

8For example, the applicant has a note that on March 22, 2006, Rossi accused her of putting something in her pocket and the applicant told Rossi to check for herself. The applicant has a note that on April 17, 2006, a customer asked her how to say hello in Korean, and she wrote this down on a piece of paper. The applicant states that this customer gave her a thank you note, and the applicant put this note in her pocket. The applicant’s note records that she was suspected by Rossi of putting money in her pocket, and that Rossi was pointing at her and literally shouting that the applicant was taking money and putting it in her pocket. The applicant states that she was so upset about this that she went to the washroom and cried. She says that she spoke to Mazoukis about this incident, and was told not to worry about it and that she was doing fine. The final incident recorded in the applicant’s notes is on May 23, 2006, where it is recorded that Rossi followed the applicant to the washroom and asked what she had put in her pocket, and the applicant showed Rossi a letter.

9The applicant states that there were other incidents where she was accused of stealing, but that these were not recorded in her typewritten notes. The applicant also stated that she had additional notes at her home where incidents were recorded which she had not brought to the hearing. I do not accept this evidence. It is the responsibility of the parties first to disclose all arguably relevant documents to the opposing parties, and then to file with the Tribunal all documents upon which they intend to rely at the hearing. Neither the typewritten notes nor any further material that the applicant may have at her home were either disclosed to the respondents or filed with the Tribunal in advance of the hearing. As a result, while I was prepared to hear the applicant’s evidence regarding what was recorded in the typewritten notes she brought to the hearing, I am not prepared to accept or give any weight to her statement that there were further specific incidents recorded in undisclosed material at her home.

10I also do not accept Rossi’s evidence that she never suspected the applicant of stealing. While stating this categorically at the commencement of her evidence, Rossi then proceeded to accuse the applicant of taking bowls of soup for herself and putting water in the soup pots to make up the volume she had taken, and of purposefully breaking muffins and other goods so that they couldn’t be sold to customers and she could eat them. I find that this evidence is consistent with the applicant’s allegation that she was suspected of stealing by Rossi, and I accept the applicant’s evidence that on at least three occasions in the first several months of her employment she was questioned by Rossi about what she had in her pocket.

11That finding, however, does not mean that the applicant experienced racial discrimination. The applicant was a newly hired employee, and on each occasion was questioned by Rossi when she was seen putting something into her pocket. I appreciate and accept that the applicant is a hard-working person who takes her honesty and personal integrity very seriously, and I appreciate that she was justifiably upset by being questioned over what she had put in her pocket. However, I do not find that the evidence supports that this conduct continued beyond the first three months of the applicant’s employment, nor do I find that any suspicion of stealing was pursued farther than merely asking the applicant what she had put in her pocket. In all of the circumstances, I do not find that there is sufficient evidence to support the allegation that the applicant’s race or ethnic origin were a factor in Rossi’s conduct towards her.

Allegation re name-calling and being told she couldn’t speak “good English”

12In the complaint, the applicant alleges that Rossi “used to come out and call me names and state that I can’t speak good English”. When questioned about this allegation at the hearing, the applicant stated that on one occasion, Rossi said that she had changed the applicant’s name, and that it wasn’t “Kim” it was “Shelma”. “Kim” is the English name that the applicant used to refer to herself at work. I do not find any basis in this evidence to support a finding of a Code violation.

13With regard to the allegation about being told that she didn’t speak “good English”, the applicant’s evidence at the hearing contradicts what is stated in her complaint. At the hearing, the applicant’s evidence was that in fact this was never stated to her. Rather, the applicant states that she was told by Rossi not to talk to the customers too much, and that she also was told by Mazoukis not to engage in long conversations with the customers and to just say “yes” or “no” and continue with her job.

14The applicant states that it was her interpretation that she was being told not to talk to the customers because she didn’t speak “good English”. This is not supported by the evidence. It seems entirely reasonable for the respondents to have wanted the applicant to focus on doing her job rather than engaging in lengthy conversations with customers. There is no basis to support an allegation of racial discrimination in relation to this evidence.

Allegation re lunch breaks

15In the complaint, the applicant alleges that she was never allowed to have lunch breaks together with the other employees. It is stated that most of the time, the other employees would take lunch breaks together while the applicant would work. It is alleged that after the other employees finished lunch, they would pack up the food and leave nothing for the applicant.

16This allegation is not supported by the evidence. The evidence indicates that the lunch hour was the busy time period for the business, and the lunch rush would end at around 2:00 or 2:30 p.m. After the lunch rush ended, Rossi and the assistant cook would bring the trays of food back from the counter to the kitchen and they would eat their lunch. Depending upon how busy it was out front, the person who was working on the counter and the applicant, who was working on cash, were able to come back to eat their lunch. The applicant’s evidence is that it sometimes would be 3:00 p.m. before she would be able to eat her lunch. The assistant cook’s evidence is that at a certain point before close, it was his responsibility to put the food away. However, the evidence is that the food was always available to staff, which Mazoukis described as one of the perqs of the job.

17There is no dispute that Rossi and the assistant cook regularly ate their lunch together, and no doubt there were times when they were joined by the counter person while the applicant was still required on cash. I also have no doubt that there may have been times when, by the time the applicant was able to take her lunch break, the food would have been put away by the assistant cook. However, this was a function of the nature of the applicant’s job responsibilities on cash, as opposed to any deliberate or discriminatory attempt to exclude her.

18I find that the evidence does not support any finding of discrimination in relation to this allegation.

Allegation re being unfairly blamed for altercation with Rossi

19On June 4, 2007, there was an altercation in the kitchen involving the applicant and Rossi. The origin of the altercation is not in dispute. The café had a long-time customer who was very friendly with Rossi and would call out “Hi Bella!” to Rossi when she came in. On this particular day, the customer was quite cold and unfriendly towards Rossi. The applicant says that this was because of some inappropriate sexual comments made by Rossi that were overheard by the customer. Rossi believes it was because the applicant was giving away free food to the customer, and the customer didn’t want Rossi to find out.

20In any event, whatever the reason for the customer’s coldness, the altercation ensued. There were four people involved in the altercation – the applicant, Rossi, Mazoukis and the assistant cook – and I heard evidence from all four. All four gave differing versions of what transpired.

21In the complaint, the applicant alleges that after the customer left, Rossi asked her to come into the kitchen. The applicant alleges that as soon as she came into the kitchen, Rossi started screaming at her, thinking that the applicant had said something to the customer against Rossi. The applicant also alleges that Rossi “abused me physically, I was in pain”. The applicant states that when she came out, Rossi was still screaming at her.

22At the hearing, a different version of events emerged from the applicant. The applicant’s evidence is that, prior to anything happening in the kitchen, Rossi came over to her and accused her of saying something offensive to the customer and was pointing her finger at the applicant. The applicant states that Rossi then went back to the kitchen. The applicant states that later, she took some dirty dishes into the kitchen and Rossi was chopping something with a knife. The applicant states that as soon as she entered the kitchen, Rossi held up the knife and shouted for the applicant to get out or Rossi would do something. The applicant says that Mazoukis was away from the café at the time, and when he returned he spoke to Rossi and afterwards came to speak to the applicant. The applicant says that she and Mazoukis went into the kitchen together to speak with Rossi, and the applicant was standing behind Mazoukis because she was scared. The applicant states that Rossi began pointing her finger at her and accusing her of saying something bad to the customer, and the applicant began hitting Rossi’s hand to stop her from pointing, because in Korean culture pointing a finger is the worst thing you can do. The applicant denies that she hit or scratched Rossi on the chest. It is undisputed that Rossi threatened to call the police and actually picked up the phone to do so, but didn’t follow through. With regard to the allegation of “physical abuse” in the complaint, the applicant says that Rossi was touching her arm with a finger and that this caused her pain, although not enough to go to a hospital or anything.

23Rossi tells a very different story. Rossi is in agreement that she and the applicant spoke about the customer while the applicant was at the cash, although Rossi says that the applicant laughed when Rossi asked whether the applicant had said anything to the customer. Rossi also is in agreement that the applicant first came into the kitchen with a tray of dirty dishes. However, Rossi says that there were three customers waiting for service at the cash, and she told the applicant to tend to the customers and let the assistant cook deal with the dirty dishes. Rossi says that at this point, the applicant began yelling and screaming, but then left to deal with the customers. Rossi says that the applicant later came back into the kitchen and started poking Rossi in her chest and hitting Rossi with her long nails. Rossi says that she had bruises from the applicant hitting her. Rossi says that Mazoukis came right away and stood between her and the applicant so Rossi wouldn’t get hit. Rossi says that the applicant was almost jumping over the prep table and grabbing her. Rossi says that after this incident, she never spoke to the applicant again, because she was scared of the applicant.

24The assistant cook gave yet another version. He says that the applicant came into the kitchen, and Rossi yelled for her to “get out”. He says that the applicant said, “why, what’s your problem?” and that was what started the confrontation. He says that the applicant started poking Rossi in the chest with her finger until he made a motion for the applicant to leave, which she did. The assistant cook says that the applicant later came back to the kitchen when Mazoukis was there, and the applicant became very aggressive and started grabbing Rossi and then Mazoukis was grabbing the applicant. This witness states that the applicant started laughing when Rossi threatened to call the police.

25Mazoukis’s version doesn’t include the initial altercation in the kitchen, as he was away from the cafe on a catering job. Mazoukis says that he returned from the job through a back entrance to the kitchen, and saw the applicant yelling and lunging at Rossi across the corner of the prep table. Mazoukis says that he moved directly in front of the applicant and told her to stop, and she eventually did. Mazoukis says that he saw red marks on Rossi’s chest, “almost like a scratch”.

26There is no dispute that shortly following this incident, the applicant’s employment was terminated and the reason cited was “shortage of work”. Mazoukis states that the applicant was fired because of the altercation with Rossi, and says that he waited two weeks before terminating her and cited “shortage of work” on the Record of Employment because he wanted to spare the applicant the “indignity” of being fired for fighting.

27Given the state of the wildly conflicting evidence before me, it is simply not possible for me to say with any degree of probability what actually transpired in the kitchen on June 4, 2007. In my view, it is sufficient for me to find that on consideration of all of the evidence before me, there was an altercation between the applicant and Rossi on that day that involved yelling by both of them, finger-pointing by Rossi and chest-poking by the applicant, and that required the intervention of Mazoukis to restore calm and get everyone back to work.

28In my view, it is hardly surprising that Mazoukis would find such an altercation to be intolerable and would conclude that one of the two participants needed to be terminated. It also is hardly surprising that, as between his head chef, who was a long-term employee and was essential to the business of running a restaurant, and the applicant, who was a relatively new employee and who was more easily replaced on cash, Mazoukis would decide to terminate the applicant’s employment. While I appreciate that the applicant feels unfairly blamed over this incident, which clearly involved inappropriate behaviour on both sides, the issue before me is not whether the applicant was treated unfairly, but whether the applicant experienced discrimination in relation to her termination because of her race or ethic origin. In all of the circumstances, I find that there is no basis to support that the applicant’s termination had anything to do with racial discrimination, and had everything to do with her role in the altercation.

Sexual comments

29In the complaint, it is alleged that Rossi used to harass the applicant with sexual comments, like “Korean men have small penises” and about how she enjoys sex with her husband. In her evidence, the applicant clarified that she was asked by Rossi, “Korean men have a very small penis, so how do you enjoy sex with your husband?” The applicant testified that Rossi often made sexual comments, but when asked for specifics, the applicant could identify only one other example, where Rossi is alleged to have pointed to a banana and told the applicant to keep it because it is “quite strong”. In addition, one of the applicant’s witnesses testified that he recalled overhearing a discussion between Rossi and Mazoukis’s spouse in which reference was made to sex with men and penises. This witness could recall no further specifics of the conversation.

30The complaint alleges that the applicant used to feel ashamed at these comments, and that many times she used to get emotional about these comments. The complaint alleges that the applicant asked Mazoukis to tell Rossi to stop harassing the applicant, but he said nothing to Rossi. In her evidence, the applicant testified that Mazoukis just said for the applicant to “never mind” and that Rossi was “just joking”.

31In response, Rossi alleged that it was the applicant who was the source of sexual comments, including making reference to the size of penises of Black men that the applicant had seen on the internet and mimicking fellatio with a banana. The respondents also submitted affidavit evidence which purported to support that the applicant engaged in such conduct. I am not prepared to accept this evidence, particularly on the basis that one of the affiants, who is a personal friend of Mazoukis, testified by telephone and did not corroborate what is stated in his own affidavit. While this witness states that the applicant used to pick up bananas and make gestures with them and expressions with her mouth, he did not take this as sexual and expressly stated that the applicant was not mimicking the act of fellatio.

32Mazoukis’s evidence is that there was some light sexual joking in the kitchen, but it was not as serious as alleged by the applicant. Mazoukis does recall overhearing a conversation in passing at the front counter that involved the applicant, Rossi and his wife, where reference was made to men’s penises. Mazoukis says that he heard the applicant make a comment about seeing Black male penises on the internet, and that the other two women laughed. This conversation is denied by the applicant, who says that she has never seen the penises of Black men on the internet.

33Mazoukis also testified that the applicant brought in a package of frozen eel, and told him that it was very good for men’s virility. The applicant acknowledges bringing in the package of eel, which she says was because Mazoukis’s wife had expressed interest in potentially selling sushi, and the applicant was going to demonstrate how to make it. The applicant also acknowledges making the comment that eel is good for the male libido.

34The assistant cook testified that he did not participate in the sexual comments or joking between the women in the restaurant, and says that he would go somewhere else when they would start discussing these topics. This witness states that when he was mopping up out front at the end of his shift, he would dance and joke around with the applicant and sometimes she would slap his backside.

35Another witness, the personal friend of Mazoukis, worked with the applicant for a short time at the front of the restaurant, and described the applicant as friendly and flirtatious with him and with male customers. This witness described one occasion when the applicant pinched the top of his hip, which he found to be just a joke and regarded as the applicant being playful.

36In the end, upon consideration of all of this evidence, I find that there was an occasion where there was a discussion involving the applicant, Rossi and Mazoukis’s wife in which reference was made the relative size of the penises of men of different racial backgrounds. I find that the applicant was a participant in this discussion, and that the discussion at the time was not unwelcome to her. While I do not find that the applicant mimicked the act of fellatio with a banana, I do find that the applicant and Rossi both made reference or gestures with regard to bananas that could be regarded as potentially having a sexual innuendo. I also find that the applicant was playful with her co-workers, including slapping one male co-worker’s backside and pinching another’s hip, in a manner that was not regarded as offensive by anyone.

37Overall, I find that the workplace involved discussions and interactions that are fairly common and unremarkable, with the exception of the discussion about men’s penises. In my view, this discussion was inappropriate in a workplace setting, and ought to have been acted upon by Mazoukis as the owner of the business. That being said, as I have found that the applicant was an active participant in this discussion and that the discussion was not unwelcome to her, there is no basis upon which to find that she experienced a sexually poisoned work environment in violation of the Code.

Order

38For all of these reasons, the Application is dismissed.