Formosa v. Toronto Transit Commission, 2009 HRTO 54

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Monica Formosa Applicant

-and-

Toronto Transit Commission, Dennis Childs, Ron Chong and Gigi Mallais Respondents

Case resolution conference decision

Adjudicator: Kaye Joachim Date: January 16, 2009 Citation: 2009 HRTO 54 Indexed as: Formosa v. Toronto Transit Commission

APPEARANCES BY

Monica Formosa, Applicant ) Kim Bernhardt, Counsel Toronto Transit Commission, Dennis Childs, Ron Chong and Gigi Mallais, Respondents ) Angela E. Rae, Counsel

Background and Procedure

1This is an Application filed July 3, 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 on February 1, 2004 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. The following witnesses testified on November 27 and 28, 2008: the applicant; Michael Bennett, job development officer; Dennis Childs, Superintendent, Surface Transportation Training; Gigi Mallais, Instructor; Ron Chong, Placement Specialist, Human Resources: Callie Salmon, Director, Human Rights Unit; Donna Lefebvre, Instructor; Paul Smith, Instructor; Terry Noonan, Chief Instructor; Frank Nardi, Instructor and Air Brake Specialist; Bill Parson, Wheel Trans Instructor, Sam Lightowler, Acting Superintendent, Surface Transportation Training; Elaine Mortenson, Instructor; Gary Andrews, Senior Recruiter, Human Resources (by teleconference). Final argument was heard on December 8, 2008. The parties agreed to reserve evidence and submissions on remedy until I issued my decision on the merits.

Nature of the Dispute

3The applicant, who self-identifies as a person who has a general learning disability with Attention Deficit Hyperactive Disorder (ADHD), alleges that the respondents failed to properly accommodate her disability when she was enrolled in the Toronto Transit Commission (“TTC”) Bus Operator training program, improperly interrupted her training program and improperly terminated her employment because of her disability. She alleges that the TTC and Dennis Childs failed to consider accommodation in the form of a transfer to an alternative position. Also, the applicant alleges that she was subjected to a hostile working environment due to her disability.

4The TTC asserts that once they were advised of the applicant’s disability, they took appropriate steps to accommodate her needs during the training program, commensurate with the information provided by the applicant. Following vocational testing, the TTC concluded that the applicant was not capable of successfully completing the training or meeting the requirements of the Bus Operator position. Therefore, the termination of the applicant’s employment was not a breach of the Code. The TTC also asserts that it had no obligation to offer the applicant an alternative position as a form of accommodation. The TTC denies that the applicant was subject to a hostile working environment.

Decision

5The Application is dismissed. My reasons follow.

Chronology of Events

6There are some factual issues in dispute and I will explain why I have accepted the evidence of some witnesses over others later in this decision. What follows are my conclusions about the relevant events.

7In 2002, the applicant sought the assistance of an agency called Employment Access whose mandate was to assist persons with disabilities to prepare for and find employment. The applicant worked with a job development officer by the name of Michael Bennett to whom she expressed an interest in applying to the TTC. The applicant submitted an application for the position of Wheel Trans Operator with the TTC in 2002; she may have attached a leaflet from Employment Access which provided information to employers about how to access financial support in hiring persons with disabilities. She was one of approximately 16 persons selected to attend an orientation session in February 2002. The applicant failed the written entry level test and was not invited to participate any further in the competition for a Wheel Trans operator. The applicant subsequently obtained employment elsewhere and her association with Employment Access ended.

8Gary Andrews, a Senior Recruiter with the TTC, recommended that the applicant consider other positions within the TTC in the office or as a Bus Operator and offered to make a recommendation to Ron Chong, Placement Specialist, Surface Transportation.

9The applicant submitted a second application in May 2002 for a position as a Bus Operator. Based on the applicant’s application and Mr. Andrews’s recommendation, Mr. Chong conducted a telephone pre-screen interview and invited her to participate in the next steps, including a medical assessment, job shadowing and reference checks. The applicant successfully completed these steps and was sent an offer to participate in the Bus Operator training program. At some point during their discussions the applicant mentioned that she had difficulty processing information. She may or may not have referred to this as a reading or learning problem and she may or may not have used the word “disability.” I find that nothing turns on the particular wording used or understood, as in the context of the brief conversation, I am satisfied that the applicant did not sufficiently identify herself as a person with a learning disability in need of accommodation so as to trigger an obligation on the TTC to investigate its responsibility to ensure that its hiring process did not have an adverse impact on the applicant.

10At the orientation session Mr. Chong advised the trainees about the strenuous nature of the training program and the fact that, if they did not successfully complete the program, they would not be permitted to re-apply for a Bus Operator position for two years. He also advised the applicants that if they were unsuccessful in the Bus Operator training program, there were no “consolation prizes” in the form of alternative positions.

11The Bus Operator training program is designed to be undertaken on a full-time basis for 23 days of classroom and driver training. In the ordinary course, there is one driving instructor assigned to two trainees. In order to successfully complete the program and become eligible for employment as a Bus Operator with the TTC, each trainee is required to pass Ministry of Ontario tests to obtain a Class AZ licence.

12The applicant was paired with a former Wheel Trans operator who was attempting to move into the position of Bus Operator. Her partner had considerable driving and classroom experience. This permitted the instructor, Paul Smith, to focus more of his attention on the applicant, who showed early signs of difficulty in understanding some of the classroom material and the driving requirements.

13On day four of the training program, April 3, 2003, Mr. Smith stayed beyond the usual classroom time to work with the applicant. The applicant explained that she had a learning disability, which made it hard for her to keep up. Mr. Smith advised Terri Noonan, Chief Instructor. On April 8, 2008 the applicant met with Ms. Noonan and Mr. Smith to discuss her learning needs. It was agreed that the applicant would be given extra time for written tests and a private place to write the tests.

14Mr. Smith continued to work with both the applicant and her partner but focused more of his attention on the applicant in light of her need and in light of the experience of the other trainee.

15On April 10, 2008, the trainees were scheduled for an air brake Z endorsement test, a mandatory requirement in order to obtain the AZ drivers licence. The applicant and another trainee asked to take the two parts of the test on separate days, but this request was refused by Mr. Smith. The applicant did not frame this request in terms of a need to accommodate her learning disability.

16The applicant failed the test. In accordance with standard procedure, the applicant was interviewed by the acting Superintendent, Sam Lightowler, who advised her that her participation in the program was terminated. She asked for the opportunity to take the test again, after more preparation time, but Mr. Lightowler did not have the authority to grant this request. He testified that this was not an unusual request as most trainees who failed also sought to remain in the program and redo the test. He advised her to speak with the Superintendent, Mr. Childs who was absent that day.

17On April 14, 2008, the applicant met with Dennis Childs. She advised him that her performance had been adversely affected by her learning disability. Mr. Childs asked for documentation confirming the nature of her learning disability and her accommodation needs and the applicant provide the learning plan used by Sheridan College where she obtained her early childhood education degree. This plan identified the applicant as having a learning disability and identified specific measures which should be taken to assist in learning. These included instructors providing extended time and/or alternate setting for tests, copies of notes, providing additional clarification of course material, consideration given for spelling or grammar difficulties, and extensions on due dates for assignments.

18After reviewing the learning plan, Mr. Childs advised the applicant the next day that she could start the training program again.

19On April 29, 2008, Mr. Childs met with the applicant to discus her re-entry into the program and her needs. Mr. Childs did not agree to extend the training program beyond 23 days, but did agree to give the applicant extra time for written tests, a private area to write tests and extra instruction, in accordance with the recommendations of the Sheridan College learning plan. Mr. Childs selected Gigi Mallais to instruct the applicant.

20Ms. Mallais was provided with a copy of the applicant’s learning plan and she did some research on ADHD to prepare to teach the applicant. On May 12, 2003, the first day of the new program, the applicant, Ms. Mallais and Ms. Noonan met to discuss learning strategies. Although the applicant was paired with another trainee, that person left the program early and Ms. Mallais was able to work with the applicant on a one on one basis.

21Initially, the applicant was satisfied with Ms. Mallais’ instruction. However, she eventually became dissatisfied with the quality of instruction and the pace of her learning, following unsatisfactory reports.

22On May 26, 2003, the applicant requested a meeting with the TTC Human Rights Office because of her concern that her accommodation needs were not being met.

23On May 27, 2003, the applicant met with Dennis Childs and Callie Salmon, the Director of the Human Rights Unit. The applicant indicated that she no longer wished to work with Ms. Mallais in light of what the applicant perceived as an insensitive comment. The comment will be discussed in greater detail later in this decision. In light of the request for further accommodation, Mr. Salmon asked the applicant for more documentation regarding the nature of her learning disability and her accommodation needs.

24The next day, the applicant provided elementary school records identifying her as an exceptional student, and a 1996 vocational referral form. Mr. Childs indicated that these documents were too old to be useful and asked for more recent information.

25At the same time, Mr. Childs agreed to assign a new instructor, to cease applying the grading process and to provide an additional 11 days of training before the applicant would be required to take the final written and driving grade C test.

26On May 29, 2003, the applicant and Ms. Noonan designed an individual learning plan for the next 11 days of training. Various instructors worked with the applicant in accordance with the plan.

27On June 5, 2003, the applicant indicated that she believed she required 10 more weeks in order to successfully complete the training program. At the same time, Mr. Childs repeated his request for more documentation to confirm the nature of her learning disability and her specific accommodation needs. In particular, Mr. Childs requested a copy of a 1998 vocational rehabilitation report the applicant had mentioned.

28On June 10, 2003, the applicant again asked for more time to prepare for the written and road tests, but this request was denied.

29One June 16, 2003, the applicant passed the written test. On June 17, 2003, the applicant failed the road test. The test was administered by Elaine Mortenson. She reviewed the test results with the applicant and Ms. Noonan. The applicant subsequently met with Mr. Childs. In light of the applicant’s ongoing request for accommodation and the anticipated additional vocational rehabilitation report, Mr. Childs did not terminate the applicant from the program at this time.

30On June 19, 2003, the applicant advised Mr. Childs that she did not believe the 1998 vocational rehabilitation report was useful because it was out of date. The TTC agreed to pay for a new assessment.

31On July 3, 2003, Mr. Childs advised the applicant that that she would be laid off from the training program due to her lack of progress, pending the results of the vocational assessment.

32The applicant attended at the vocational assessment centre on several dates in October and November 2003. In December 13, 2003, Dr. Crawford issued her report. Upon receipt of this report, the TTC terminated the applicant’s employment on the basis that she was not “suitable” for the position of Bus Operator.

Credibility

33There are several points on which the applicant’s evidence diverged from some of the narrative described above. For the most part, I have accepted the evidence of the respondents’ witnesses where their evidence conflicted with the evidence of the applicant. I will not identify each area of discrepancy, but will concentrate on the most significant and explain my reasons.

34The applicant testified that she advised Bill Parsons, the Wheel Trans Instructor at the February 2, 2002 orientation session that she had a learning disability and needed more time to complete the geography questionnaire., She says she advised Gary Andrews and Mr. Chong on more than one occasion that she had a learning disability and needed extra time to learn things. ,Each of these witnesses denies that such conversations took place and testified that they would have notified the appropriate supervisor of the applicant’s self-identification so that her learning needs could be met. Each of Mr. Parsons, Mr. Andrews and Mr. Chong were aware of the TTC’s obligation to accommodate persons with disabilities and knew what steps to take when advised of such needs. In my view, it is not in keeping with the preponderance of probabilities that each of these witnesses is mistaken or lying on these matters. My view that TTC employees who are clearly advised of a need for accommodation take their responsibilities seriously is confirmed below.

35I am reinforced in this conclusion by the applicant’s After Hire Employee Information form in which she specifically ticked off “no” to the question whether she considered herself disadvantaged in employment because of a learning disability. This is the first document in evidence that specifically asks the applicant whether she has a disability and she answered that she did not.

36The applicant insisted that she did not perceive herself as disadvantaged in employment which is why she did not tick off the “yes” box. At the same time she testified that at every opportunity she immediately announced to the recruiters that she had a learning disability that required accommodation. I find this discrepancy supports my conclusion that the applicant is mistaken about when she first clearly identified her disability.

37Another matter which needs to be addressed is the evidence of Michael Bennett, a job development officer from Employment Access. Mr. Bennett testified that while assisting the applicant in her expressed desire to obtain a position with the TTC, he called the TTC to inquire whether a job coach could attend to assist the applicant during any testing process. He was advised that coaches were not permitted. Mr. Bennett’s evidence was understandably vague in light of the approximately six years that had passed. He did not know the name of the person he spoke to nor did he offer any details about what testing process he wanted to assist in or how. In my view, his evidence is too vague to be given any weight.

38The applicant also disagreed with the assessments of her various instructors as to the adequacy of her driving ability. The instructors’ progress reports were detailed, even handed, and numerous. At least seven different instructors, including Paul Smith whom the applicant identified as her preferred instructor, consistently identified deficiencies in her driving ability. I prefer the instructors’ progress reports to the applicant’s subjective perception of her ability to drive a bus.

39Further, as will be discussed below the applicant’s subjective view of her own capacity is not supported by the vocational testing done in 2003. The observations made by Dr. Crawford, an assessor selected by the applicant, are consistent with the observations made by the TTC employees.

40The applicant’s evidence varied to some extent with virtually every one of the twelve TTC witnesses. In most cases, the discrepancy is not one that can be easily reconciled as fading memory or difference in point of view. Either all the TTC witnesses are mistaken or the applicant is mistaken. The preponderance of probabilities satisfies me that the applicant is mistaken in much of her recollection of events. I am satisfied that the applicant’s sincere belief in her capacity to successfully complete the bus operator program, given adequate time and appropriate training, has significantly clouded her judgment and influenced her memory of past events and experiences

Determinative Issues

There are four determinative issues in this Application. I will address each in turn.

1. Did the respondents make reasonable efforts to accommodate the applicant’s disability?

41The applicant perceived that the TTC’s efforts to accommodate her were grudging, inappropriate and inadequate. I do not agree. I find that overall the TTC’s efforts at accommodation met the standard required by the Code.

42I find that the applicant first clearly communicated that she had a disability on April 3, 2008. She self-identified as having a learning disability and attributed her difficulties in the program to this disability. The TTC met promptly with the applicant to discuss measures to accommodate her learning needs, as they understood them at that time.

43When the applicant failed the air brake test on April 10, 2008, her employment was terminated in accordance with the rules of the training program. When viewed in isolation, the strict application of the rules of the training program, without consideration for the impact of her learning disability on her performance, is troubling. However, the TTC quickly remedied the effects of this procedural shortcoming, as Mr. Childs promptly decided to reinstate her in the training program when the applicant clearly articulated a link between her failure to pass the air brake test and her need for more learning time.

44In accordance with the information provided by the applicant, the TTC attempted to accommodate the applicant’s learning style. The accommodation took the form of re-starting the program from the beginning, individualized and extra attention, additional time to prepare for written tests, individualized driving instruction and additional time to prepare for the brake and driving tests.

45Some of these measures yielded results. The applicant successfully passed the air brake Z test, which she had previously failed. However, progress was very slow and the instructors were concerned that the information, while memorized, was not truly understood. In addition, the applicant’s bus driving skills did not improve significantly.

46I find that, as time passed, and the applicant’s progress continued to be unsatisfactory even with accommodation, the TTC was entitled, and possibly obligated, to inquire further into the nature of the applicant’s disability to explore why the accommodation measures were not successful and whether alternative measures would be more effective.

47The applicant submitted that the TTC’s request for information from the vocational assessor was worded in such a way as to justify terminating the applicant’s employment, rather than seeking further information about how to appropriately accommodate the applicant’s disability. In the applicant’s view, the request for an assessment was a “set up” to prove that the applicant could not perform as a bus operator.

48The TTC sought information from the assessor about the nature of the applicant’s disability, her learning needs, and the adequacy of the measures already undertaken. In addition, the TTC did seek an opinion about the capacity of the applicant to perform the essential duties of a bus operator. In light of the lack of progress made by the applicant, despite the efforts to assist her learning, the TTC was entitled to seek an opinion on that matter. If the TTC erred, it was in not being completely forthright with the applicant about the dual purpose of the assessment. That does not, however, lessen the TTC’s right and obligation to obtain the opinion sought.

49I am satisfied on the basis of the evidence before me the respondents’ actions were reasonable and responsive to their Code obligation to offer the applicant reasonable accommodation of her disability.

2. Is the applicant capable of performing the essential duties of a Bus Operator?

50The applicant genuinely believes that, with reasonable accommodation and support, she would have obtained the skills necessary to perform the essential duties of a TTC Bus operator. Without questioning the sincerity of the applicant’s belief, I find the evidence does not support her position.

51The vocational assessment prepared by Dr. Crawford is the best and most reliable evidence of the applicant’s capacity to complete the bus operator training program and operate a bus. Dr. Crawford is a trained psychologist, with extensive experience in intelligence testing and assessments of learning disabilities. She had worked with the applicant before to prepare the 1998 vocational assessment and the applicant selected Dr. Crawford’s office to conduct the updated assessment. She reviewed numerous documents submitted by the TTC and the applicant, including the physical demands analysis of the bus operator position and the applicant’s identification of accommodations required. She conducted several tests on the applicant and indicated that the applicant was motivated and that she was satisfied that the test results were reliable. The 2003 test results were entirely consistent with the results of the earlier 1998 assessment, which increases their reliability.

While she can learn tasks and has demonstrated her determination to date, by virtue of her intellectual limitations, the more demanding aspects of the Operator job are beyond her capacity to perform them safely and competently, thereby ensuring her personal safety and the public riding on her bus.

52By contrast the medical reports of Dr. S. Tozman and Dr. J. Cooper relied on by the Applicant are of limited value. Dr. Tozman has no expertise in assessing intelligence or learning disabilities and his report is nothing more than a referral letter to Dr. Cooper urging him to find the applicant does not have an intellectual disability. Dr. Cooper is a psychiatrist with no expertise in assessing intelligence or learning disabilities. The stated purpose of his assessment was to assess the applicant‘s “emotional” state. He did not conduct any tests. His conclusions are entirely impressionistic.

53I find Dr. Crawford’s report, coupled with the applicant’s failure to progress in the training program even with accommodations to her learning limitations, demonstrate on a balance of probabilities that the applicant is not capable of fulfilling the essential duties of a Bus Operator position, even with accommodation.

54While the brevity and abruptness of the termination letter, given the applicant’s reasonable expectation that the purpose of the vocational assessment was to assist the TTC to help her complete the training program, demonstrates a lack of sensitivity, this does not amount to a violation of the Code

3. Was the applicant’s work environment poisoned?

55The applicant alleges that the persons involved in the training program poisoned her work environment by their lack of patience, their grudging attitude to accommodating her needs, their expressed view that the applicant was expecting “special treatment,” their over-scrutiny, and by specific inappropriate comments.

56The applicant’s perception that she was viewed as demanding “special treatment’ is understandable in light of her assertion that the TTC knew before she commenced the program that she had a learning disability. I have rejected that assertion. Accordingly, when during the early days of her training, TTC employees indicated that the applicant was expected to complete the training program “like everyone else,” there was nothing inappropriate about that approach. Once the applicant self-identified as having a disability requiring accommodation, it would have been inappropriate and insensitive to convey the view that the applicant’s request for accommodation was a request for “special treatment.” However, I am not satisfied that the applicant has established that TTC employees conveyed that message, once advised of her disability.

57I find that, after the applicant self-identified as having a disability, TTC employees responded respectfully and promptly.

58I also find that the applicant’s perception that the instructors over-scrutinized her or lacked patience is not reliable. The instructors’ critical assessment was not due to over-scrutiny, but based on objective criteria. Their assessments of the applicant’s incapacity to perceive risk or to react to unexpected situations are consistent with the 2003 assessment.

Specific comments

59The applicant alleged that Gigi Mallais, a training instructor made an insulting and scornful comment to her. When the applicant had difficulty understanding a driving concept, Ms. Mallais allegedly told her to “go ask your mother.” She further testified that Donna Lefebvre, a training instructor, told her in an insulting manner that she would not “sugar coat” her assessments.

60Ms. Mallais’ evidence, supported by the applicant’s contemporaneous written reports, is that the applicant was very pleased with Ms. Mallais’ teaching style until she received an unsatisfactory assessment.

61Ms. Mallais testified that she had asked the applicant whether she had a coach to help her with learning and that the applicant identified her mother as the person who helped her. On one occasion the applicant referred to her mother assisting her to learn a specific driving skill using a Halloween carpet in their home. Ms. Mallais agreed that on one occasion, after her efforts to explain a concept to the applicant were unsuccessful, she suggested that the applicant seek assistance from her mother. Ms. Mallais denied that her manner in conveying this message was either scornful or impatient. An important confirmation of Ms. Mallais’ evidence is a handwritten document that appears to have been written by someone in the applicant’s home, as it refers to a Halloween carpet and refers to the applicant in some detail, with suggestions about learning strategies. The applicant denied that she or anyone in her home had written the document, but did agree that she had a Halloween carpet. It is highly improbable that Ms. Mallais or anyone at the TTC created this document with its reference to a Halloween carpet, which the applicant agrees does exist in her home. I am not satisfied, on a balance of probabilities, the remark was made to the Applicant in the manner alleged.

62Ms. Lefebvre testified that she initially had a positive relationship with the applicant, which is again confirmed by written statements the applicant made at the time. Ms. Lefebvre agreed that on one occasion, when the applicant pressed her to assure her that she would succeed in the training program, Ms. Lefebvre was not able to give that guarantee and used the phrase that she would not “sugar coat” her assessments. She denied that her tone or manner was insulting or demeaning. Again, I find that Ms. Lefebvre’s version of event is more consistent with the preponderance of probabilities, in light of the applicant’s positive description of Ms. Lefebvre before her participation in the training program was terminated.

63I conclude that the applicant did not experience a poisoned work environment because of her disability while enrolled in the TTC training program.

4. Was there an obligation to provide the applicant with an alternative position?

64The applicant submitted that, if she were found to be incapable of performing the essential duties of the Bus Operator position, even with accommodation, the TTC was obliged to consider whether there were alternative positions within the TTC which the applicant could do. The applicant asked the Tribunal to consider the Ontario Human Rights Commission Policy and Guidelines on Disability and the Duty to Accommodate. In accordance with section 45.5(2) of the Code, I am required consider a Commission policy if a party to the proceedings requests.

65The applicant relies on section 3.3.2(b) of the Commission Policy that states:

Where the employee can no longer perform his or her current job and if alternative work is appropriate based on the analysis described above, the Commission is of the view that the employer should consider permanent alternative work. This is consistent with a line of labour arbitration cases that have found that the duty to accommodate may include significant workplace reorganization as well as with the obligation to provide suitable work in order to satisfy the duty to re-employ injured workers.

66The applicant also relied on decisions of this Tribunal, the courts and arbitrators as support for the position that the duty to accommodate may include the duty to consider alternative positions.

67The respondents note the Commission’s Policy does not require an employer to "promote the employee. Reassignment is not available to job applicants.”

68I agree that reasonable accommodation does not extend to requiring an employer or prospective employer to make reassignment available to job applicants. With one exception the decisions cited by the applicant involved longstanding employees. While Lane v ADGA Group Consultants Inc., 2007 HRTO 34 involved a recent hire, the decision does not support the assertion that job applicants are entitled to claim alternative positions as a form of accommodation.

69Accommodating a job applicant with a disability does not mean giving them another job if they are not capable (after considering accommodation, short of undue hardship) of doing the job they applied for. That would afford persons with disabilities preferential access to job vacancies, not equal opportunity to apply for job openings. In this situation the applicant was a “job applicant” for the position of bus operator, conditional upon successfully completing the job training program. I have already concluded that the applicant is not capable of successfully completing the bus training program and performing the essential duties of a bus operator position, even with accommodations. The TTC is not obliged to accommodate the applicant by searching out other positions in its organizations which the applicant might be capable of doing, with or without accommodation.

ORDER

70In light of my conclusions above, there is no need to reconvene the proceedings for a hearing on remedy. The Application is dismissed.