Reece v. J. D. Griffin Centre, 2009 HRTO 843

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonard Reece

Applicant

-and-

J. D. Griffin Centre, Diane Broad, Lynn Crawford and Winifred Coddett

Respondents

case Resolution Conference DECISION

Adjudicator: Ailsa Jane Wiggins

Date: June 17, 2009

Citation: 2009 HRTO 843

Indexed as: Reece v. J. D. Griffin Centre

AppearanceS BY

Leonard Reece, Applicant ) On his own behalf

J. D. Griffin Centre, Diane Broad, ) Lisa Cabel, Counsel

Lynn Crawford and Winifred Coddett, )

Respondents )

Introduction

1This Decision deals with an Application filed on September 4, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant, who describes himself as an “African American”, was employed as a youth outreach worker by the J. D. Griffin Centre (the “corporate respondent”), a non-profit organization that provides a range of community mental health services to youth and adults. There are three individual respondents. Diane Broad is the Manager, Community/Family Support Services of the corporate respondent. Winifred Coddett is the Supervisor, Community/Family Support Services/Y-Connect of the corporate respondent and the applicant’s immediate supervisor. Lynn Crawford was the Manager, Human Resources for the corporate respondent and was the human resources support person to the applicant.

3The applicant alleges that he was dismissed by the corporate respondent because of his race and colour and that his dismissal was an act of reprisal.

4The respondents deny the applicant’s allegations and assert that the applicant was dismissed without cause due to his performance.

5A two day Case Resolution Conference (CRC) was held on March 11 and 12, 2009 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.

6The applicant did not provide the other parties or the Tribunal with a list of the witnesses he proposed to call and a description of what each witness would say. The Tribunal’s Rules require that the parties file a list of witnesses and will-say statements 20 days before the CRC. The Tribunal sent the parties a letter dated December 12, 2009 with directions regarding the CRC including the requirement to file a list of witnesses and will-say statements by February 16, 2009.

7On the first day of the CRC, the applicant, who was unrepresented, stated that he proposed to call two witnesses. Counsel for the respondents objected because the applicant had not complied with the Rules as confirmed in the Tribunal’s letter dated December 12, 2008. Counsel for the respondents argued that it would be prejudicial to the respondents to allow the applicant to call witnesses with no warning to the respondents and, the evidence of the witnesses that the applicant proposed to call was not relevant to the issues in dispute.

8The first witness that the applicant proposed to call was Kristy Weekes, a former employee of the corporate respondent. Since the applicant had included in his materials an e-mail from the applicant to Ms. Weekes, and since Ms. Weekes was present, I agreed to allow the applicant to call Ms. Weekes to testify solely concerning the circumstances surrounding the e-mail.

9The second witness that the applicant proposed to call was Mary Mark. Ms. Mark was not an employee of the corporate respondent. The applicant proposed to call Ms. Mark to testify about a telephone conversation between the applicant and a police officer who had complained to the corporate respondent about the applicant. The telephone conversation took place while the applicant was in Ms. Mark’s office and Ms. Mark overheard the conversation.

10I ruled that the applicant could not call Ms. Mark. In my view, Ms. Mark’s testimony was not relevant. In general, employers are entitled to dismiss non-union employees without cause, at any time, for any reason or reasons, provided that none of the reasons are discriminatory and provided that they give the appropriative notice or pay in lieu. The purpose of the CRC was to determine if any of the reasons for the applicant’s dismissal were his colour or his race or if his dismissal was an act of reprisal. In addition, even if the Tribunal were to delve into the process followed by the corporate respondent to assess the applicant’s performance, the testimony of a person who allegedly overheard a telephone conversation between the applicant and one of the people who had complained to the corporate respondent about the applicant, would have little probative value.

11At the conclusion of the applicant’s testimony, counsel for the respondents submitted that he had not shown a prima facie case of discrimination and that his Application should be dismissed. While the applicant’s testimony added little to the allegations in his Application or his documents, I was satisfied the applicant had made some allegations which, if believed, could support a finding of discrimination and required a response from the respondents.

The Evidence

12The corporate respondent provides a variety of services to the Jane-Finch community. Ms. Coddett has worked for the corporate respondent as a social worker for 16 years, six of those as a supervisor. She describes herself as “black”. She testified that as both she and the applicant were from Guyana, they had something in common and he confided in her. She believed that they had a good relationship.

13Ms. Coddett testified as to the racial diversity amongst the employees of the corporate respondent, As of February 3, 2009, 62 employees were Caucasian, 58 were visible minorities and the remaining 19 were described as “other diverse staff”. In the office in which she and the applicant worked, three employees were Caucasian, and the rest, nine were “of colour”.

14The applicant’s position was created in response to the gun violence in Toronto in the summer of 2005. Youth outreach workers were expected to work with youth and other agencies – community partners, to address the needs of youth in the community. The applicant started work on August 28, 2006 as a youth outreach worker working with youth in the Westminster-Branson community of Toronto.

Use of the Nickname “Big Voice”

15The applicant took issue with Ms. Coddett’s practice of referring to him as “Big Voice” which he found demeaning and disrespectful. He produced an e-mail from her dated January 26, 2007, referring to him in this way. His e-mail response to her advises that referring to him by other than his legal name and leaving him a note with no date on it was disrespectful and discriminatory. The note in question was a handwritten note asking him to redo his time sheet to show the time he started work and the time he left work and noting that he shouldn’t take it personally, that all staff were asked to do their time sheets that way.

16Ms. Coddett explained that she called the applicant “Big Voice” because he has a loud voice. According to Ms. Coddett, she meant it in a friendly way, he responded to it, and he never objected to being called “Big Voice”. She identified the January 26, 2007 e-mail in which she referred to him as “Big Voice” but she denied having seen his e-mail response to her objecting to being called by other than his legal name.

17Ms. Coddett testified that the applicant’s e-mail response did not appear to be in the format of the corporate respondent’s e-mails. Counsel for the respondents asked the applicant to explain the discrepancy in formatting. The applicant testified that the e-mail was genuine and was sent by him.

Interactions with and Complaints from the Community

18The applicant asked his witness, Ms. Weekes, about a September 13, 2006 e-mail in which he complained to her about Ms. Coddett asking him to take off his hat at a meeting at a school. Ms. Weekes’ recollection was in her own words “a little foggy”, but she remembered talking to the applicant about the e-mail because he had unintentionally copied Ms. Coddett on the e-mail.

19Ms. Coddett recalled the meeting at the school where she had asked the applicant to remove his hat and identified her handwritten supervision notes from a meeting with him on September 18, 2006 in which that and other matters were discussed. She denied having received a copy of the e-mail from the applicant to Ms. Weekes dated “wed, [sic] 13 Sep 2006 11:23:22” about the hat incident.

20Ms. Coddett testified that the e-mail was not in the corporate respondent’s e-mail format and by the date and time, would have had to have been sent while they were still in the meeting at the school. The applicant did not have a Blackberry at that time. When challenged about the format and timing of the e-mail, the applicant testified that the e-mail was genuine and had been sent by him to Ms. Weekes as indicated on the document.

21In November 2006, Ms. Coddett received a complaint from a program manager at Horizons for Youth regarding the applicant’s interaction with her. Ms. Coddett testified that this was the first complaint from the community about him and she advised him how she thought he should interact with the corporate respondent’s community partners, in a more humble and less aggressive way.

22Over time the respondents received other complaints about the applicant’s attitude and behaviour, suggesting that he was outspoken, argumentative and unprofessional.

23On March 23, 2007, after receiving several complaints from community partners, Ms. Broad and Ms. Coddett met with the applicant, read him the contents of the complaints word for word and asked for his explanation. They testified that the applicant portrayed himself as a scapegoat and could not see how people could say those things about him. In the circumstances it was decided more investigation was necessary and they would meet with him again.

24The applicant agrees the meeting occurred and the complaints were brought to his attention. However, he takes issue with the fact he was not permitted to see the complaints themselves.

The Warning Letter and Performance Improvement Plan

25Ms. Lynn Crawford was the corporate respondent’s Human Resources Manager. In March 2007, Ms. Broad advised her the applicant was not meeting expectations. She asked if the gaps in his performance had been raised with him and recommended that they make sure that he understood that the consequence of not improving his performance would be termination of his employment. Ms. Crawford helped write the warning letter and develop a Performance Improvement Plan (PIP) so that the applicant would know what he needed to do to improve.

26On April 3, 2007, the applicant met with Ms. Broad and Ms. Coddett again. The applicant was given the warning letter advising that he would lose his job if the behaviour continued and he was put on the PIP. The PIP consisted of a list of aspects of his performance that required improvement and future objectives. As part of the PIP he was to meet with Ms. Coddett or, in her absence, with Ms. Crawford and/or Ms. Broad.

27The applicant testified that he was told that he was to be put on PIP for a month and given a letter which he was asked to read and sign. He was told that the letter would be put on his file. The applicant alleges both Ms. Broad and Ms. Coddett told him that the Griffin Centre was the only “White Organization” in the Jane and Finch area and that, as an African American, he was not a fit for an organization run by Caucasians.

28Ms. Broad testified that she had never, in any of her meetings with the applicant, referred to the corporate respondent as a “white organization”. She also testified that the applicant did not complain of discrimination until after he had been told that his employment was being terminated.

29Ms. Coddett strongly denied that she would ever have described the corporate respondent as a “white organization” or that Ms. Broad referred to the corporate respondent as a “white organization” or said that the Applicant was not a fit for the Griffin Centre.

The PIP Meetings

30The applicant testified that during the months following the April 3, 2007 meeting he was subjected to unprofessional, derogatory and racial comments during his PIP meetings with Ms. Coddett.

31Ms. Coddett testified she met with the applicant on May 17, 2007 to discuss his PIP, and amongst other things, “being a good fit - for job”.

32In Ms. Coddett’s absence on vacation, Ms. Broad held a supervision meeting with the applicant on July 6, 2007 in which amongst other things she followed up on his PIP. He had very little to say regarding the PIP. He did not suggest that he was being discriminated against.

33Ms. Crawford asked to meet with the applicant personally to see if he was being supported for success. They met in June 2007 and she spoke to him about the PIP and asked him if there was anything she could do to help him. Ms. Crawford testified the applicant said he was being well supported by Ms. Broad and Ms. Coddett and the organization as a whole. At the applicant’s request she met with him again in July.

34Ms. Crawford indicated that in their discussions the phrase “being a fit” was used, but that this is a common phrase used by human resources professionals and others to describe a situation in which a person’s skills, abilities and personality do not match the requirements of the position. The applicant’s position was a new one that did not have a great deal of structure and that required the incumbent to work independently and exercise judgement. Ms. Crawford suggested that if the applicant was struggling with that aspect of the job, there were other jobs in the organization that he could explore. According to Ms. Crawford the applicant responded that he was very interested in his job and wanted to work through the problem. He did not complain of discrimination. Ms. Crawford denied ever having said that the corporate respondent was a “white organization” or that the applicant was not a fit because of his colour or race.

Food Vouchers Incident

35The applicant stated that Ms. Broad and Ms. Coddett sent out an e-mail accusing staff of stealing food vouchers. Then when the food vouchers were found, they did not apologize to the staff.

36At a training event on May 15, 2007, the applicant told Ms. Coddett about his “discomfort” of being accused of stealing the food vouchers. He said Ms. Coddett was furious with him and did not speak to him for the rest of the day. He testified that the next day Ms. Coddett called him into a meeting and told him that he was a “know it all”, very arrogant and “not a fit for the Griffin Centre”.

37The applicant introduced into evidence an e-mail from him to Ms. Coddett dated May 17, 2007 in which he again complained about management’s e-mail concerning the missing food vouchers and lack of an apology. In his e-mail he said he was being discriminated against but he gave no explanation of what he meant by that either in the e-mail or in his oral evidence. Counsel for the respondents again put to the applicant the fact that the format of this e-mail was not consistent with the corporate respondent’s e-mail format. The applicant maintained that the e-mail was genuine and that he had sent it.

38Ms. Broad’s e-mail to staff sent May 8, 2007 regarding the missing food vouchers was introduced into evidence. There is no suggestion in it that she believed the food vouchers were stolen. When it was determined that there had been an accounting error, and that no vouchers were missing, Ms. Broad sent another e-mail to staff explaining what had happened.

Mileage and Overtime Claims

39The applicant also alleged that he was criticized for his mileage and overtime claims and told that they were over the acceptable limit for the Griffin Centre. He did not explain why he believed that to be discriminatory.

40The respondents produced a hand written note Ms. Broad left on the applicant’s desk concerning his expenses, overtime and mileage. It was a follow-up to a discussion she and Ms. Coddett had with him and another employee. After he was dismissed, the note was found still on his desk, unopened.

Complaint from Police

41Ms. Broad testified that on August 21, 2007 she received a telephone call from a police officer from 31 Division complaining about the applicant. She asked the police officer to put the complaint in writing. She described the written complaint as continuing the same themes as the March complaints, aggressive, confrontational and unprofessional behaviour.

42On August 21, 2007, Ms. Broad sent the applicant an e-mail stating that she had received a complaint about him from a police officer at 31 Division. She asked him to document it from his perspective, send it to her and Ms. Coddett by the end of the next day, and then meet with them to discuss it. As requested the applicant sent an e-mail to Ms. Broad and Ms. Coddett on August 22, 2007, setting out his position.

Termination of Applicant’s Employment

43Ms. Broad testified that she and Ms. Coddett met with Laurie Dart, the Executive Director of the corporate respondent and Lynn Crawford, to decide what to do. They decided to terminate the applicant’s employment without cause and provide him with a separation package.

44According to the applicant he received a telephone call from Ms. Coddett on August 22 asking him to meet with her and Ms. Crawford that afternoon. The applicant said that they both told him that the corporate respondent was not a fit for him and that he was being offered a separation package.

45Ms. Crawford testified that she and Ms. Coddett met with the applicant on August 22, 2007 to give him the option of leaving immediately or working out his notice period and appearing to resign, for the sake of his dignity. She said that the applicant was not given a termination letter that day because the corporate respondent wanted to let him decide which option he preferred. The applicant asked for and was granted until Friday August 24, 2007 to decide.

46On August 22, 2007, after the meeting, the applicant sent an e-mail to Ms. Broad saying the corporate respondent was not entitled to dismiss him and that it had not complied with what he believed to be the applicable legislation. Ms. Crawford responded by e-mail to the effect that the applicable legislation was the Employment Standards Act, 2000 (ESA) and that the corporate respondent was complying with the ESA. On August 23, 2007, the applicant sent another e-mail to Ms. Broad and Ms. Coddett in which he alleged that one of the reasons for his dismissal was that he was “an African American male” and he referred again to statements by the individual respondents that the corporate respondent was a “white organization”.

47In the circumstances the corporate respondent decided that allowing the applicant to work out his notice period would not be appropriate, so it decided to rescind the option of working notice and terminate his employment effective immediately. According to Ms. Crawford, the applicant appeared to accept that decision which was related to him in the meeting on August 24, 2007 in which he was given his letter of termination. The applicant did not sign back the release but the corporate respondent decided, in good faith, to pay him the full amount of the separation package that it had offered him, i.e., both the statutory amount and the pay in lieu of common law notice.

48In cross examination Ms. Broad was asked why, given the complaints about him, he was not fired earlier, before his probationary period was up. She responded that they saw his strengths in connecting with youth and were committed to trying to work with him to improve his performance. Ms. Coddett was asked why, given that the complaint from Horizons for Youth was received before his probationary period was up, the applicant was not fired earlier. Ms. Coddett said that they saw something in him, saw that he had good skills and that they wanted to try and work with him to improve his performance.

Decision

49I find that the applicant’s race and colour were not factors in the corporate respondent’s decision to terminate the applicant’s employment and that the respondents did not discriminate against the applicant or commit any acts of reprisal against him.

50The applicant complained that Ms. Coddett referred to him as “Big Voice” and asked each of the respondents’ witnesses if it was the respondents’ policy to call employees by other than their legal names. If he did not want to be called “Big Voice”, he could have said so. I am satisfied that the applicant was someone who would have complained if he felt he was being treated inappropriately. The only evidence that he complained about being called “Big Voice” was his e-mail to Ms. Coddett of January 29, 2007, which Ms. Coddett denied having received and which was not in the format of the corporate respondent’s e-mails. The applicant did not provide an explanation for this discrepancy.

51In the circumstances, on the balance of probabilities, I am not satisfied that the applicant ever complained about being called “Big Voice” or that it was a matter of concern to him at the time. In any event, the applicant did not explain how he perceived the nickname “Big Voice” to be related to his race, colour or any other protected ground under the Code and on the face of it I am unable to identify such a link. Therefore, I am not satisfied that calling the applicant “Big Voice” indicated that the respondents treated him in a discriminatory manner or that it was an expression of a discriminatory attitude.

52I am satisfied that none of the individual respondents referred to the corporate respondent as a “white organization” or told the applicant that he was not a fit for the organization because of his race and/or colour. I prefer the respondents’ evidence regarding the comments that were made to the applicant regarding him not being “a fit” for the following reasons. Ms. Coddett, who self-identifies as “black”, clearly thought highly of the applicant’s abilities and wanted him to succeed. Given her description of the racial diversity in the corporate respondent’s workplace, it is simply not credible that she or any of the other individual respondents would tell the applicant that the corporate respondent was a “white organization”. I do accept that the applicant was told that he was not a fit for the job and perhaps even that he was not a fit for the organization, but only in the sense that he was not a fit because of his skills, abilities and personality. The corporate respondent, by putting the applicant on a PIP, tried to work with him to improve his performance.

53The only evidence that the applicant complained of being discriminated against before the meeting of August 22, 2007 in which he was told that his employment was being terminated was his May 17 e-mail to Ms. Coddett about the food vouchers incident. While that e-mail includes a statement about experiencing discrimination, as I said earlier, it gives no details of the alleged discrimination. As with the January 29, 2007 e-mail, Ms. Coddett denied having received the May 17 e-mail and testified that it was not in the format of the corporate respondent’s e-mails. The applicant did not provide an explanation for this discrepancy.

54On the balance of probabilities, I am not satisfied that the applicant complained about being discriminated against until after he was told that his employment was being terminated. The applicant appeared to be a very assertive person and I am satisfied that he would have complained if he felt he was being discriminated against. He could have filed a compliant under the corporate respondent’s anti-racism/discrimination/harassment policy, but he did not do so.

55The applicant argued that he complained of discrimination after the meeting of August 22, 2007 and that his employment was terminated on August 24, 2007 as a reprisal for the e-mails that he sent after the August 22 meeting. I believe that the applicant is manipulating the facts to fit his argument. He was advised of the decision to terminate his employment on August 22, 2007 and given time to consider how he would like to depart from the organization. The decision to terminate his employment had already been made and was verbally communicated to him on August 22, 2007. I am satisfied that the corporate respondent withdrew its offer of a working notice option and terminated his employment effective August 24, 2007 when it became clear that working notice was not a viable option and not as an act of reprisal for the e-mails he sent after the meeting of August 22, 2007.

56The applicant appeared to believe that the corporate respondent did not comply with the ESA when it terminated his employment. However, he did not, either in his complaint or at the CRC, explain the alleged lack of compliance nor how it related to his race, colour or any other protected ground under the Code. I am unable to identify such a link. Moreover, it appears to me that the corporate respondent did comply with the termination of employment provisions of the ESA. The applicant was provided with the termination pay required by the ESA as well as a lump sum in lieu of common law reasonable notice, although he refused to accept the latter. Even if the corporate respondent’s payroll was $2.5 million or more, the applicant was not entitled to statutory severance pay under the ESA because he had less than five years of service.

57As is often the case there was no direct evidence of discrimination or reprisal and as I indicated above, the respondents supplied compelling explanations for what little circumstantial evidence there was. Third parties complained to the respondents about the applicant’s behaviour. The corporate respondent investigated the complaints, warned the applicant about his performance deficiencies and ultimately put him on a PIP. Regrettably his performance did not improve. I find the applicant’s employment was terminated because of the deficiencies in his performance, not because of his race or colour or as a reprisal.

ORDER

58The Application is dismissed.