Jacquie Lewis v. Rapport Youth & Family Services, 2010 HRTO 1132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacquie Lewis

Applicant

-and-

Rapport Youth & Family Services, Paul Sherman and Joan Manning

Respondents

DECISION

Adjudicator: Eric Whist

Date: May 20, 2010

Citation: 2010 HRTO 1132

Indexed as: Lewis v. Rapport Youth & Family Services

APPEARANCES:

Jacquie Lewis, applicant ) Self-represented

Rapport Youth & Family Services ) Paul Sherman, on behalf and Paul Sherman, respondents ) of corporate respondent ) and on his own behalf

Joan Manning, respondent ) Self-represented

1The applicant, Jacquie Lewis, alleges in her Application that the respondents, Rapport Youth & Family Services (the “corporate respondent” or “Rapport”) and its executive director, Paul Sherman and its former Manager of Operations, Joan Manning, (the “personal respondents”) discriminated against her in employment on the basis of sex contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that she was subjected to differential treatment while employed by the corporate respondent because of her sex. She alleges that because of her sex she was offered lower pay for a program co-ordinator’s position than was offered to a fellow, less experienced male employee. She alleges that later a program co-ordinator position was given to another male at a higher rate of pay than had been offered her. She alleges that it was discriminatory that she received less pay as a youth worker than a male youth worker. She further alleges that it was discriminatory for the corporate respondent to have terminated her when she refused to work on Saturdays after her hours of work were unilaterally changed by the corporate respondent. The applicant alleges that when she raised the issue of having to work Saturdays, Ms. Manning, her direct supervisor, said to her “Is this the last straw?” which, for the applicant, indicated the respondents’ ongoing difficulties with the applicant and their interest in terminating their relationship with her. The applicant submitted that all of the allegations described above were indicative of the ongoing discriminatory treatment she received while working for the corporate respondent.

3The respondents deny that they discriminated against the applicant. They maintain that the corporate respondent has a history of paying program co-ordinators and youth workers at different rates depending on funding sources, the nature of the specific job responsibilities and the education and experience of individual staff. The respondents submit that an examination of the history of these positions indicates no pattern of differential pay related to gender.

4The respondents acknowledge that staff were required to change hours of work in order to work every second Saturday but submit that this requirement applied to all staff in the program area the applicant worked in and that the applicant was not singled out for differential treatment in this regard. However, the respondents state that when the applicant refused to change her hours of work, as required, she was subjected to progressive discipline and then terminated because of her complete refusal to work, as required, on Saturdays. They deny the applicant was differentially treated because of her sex while she was employed with Rapport.

5At the hearing I heard testimony from the applicant, and Tamar Cox and Gilda Capraro, two former employees of Rapport who testified for the applicant. I heard testimony from the two personal respondents, and Donnavan Dunn, an employee of Rapport, who testified for the respondents.

DECISION

6The Application is dismissed. The applicant’s allegations centre on the issues of differential pay and her termination. In my view the respondents provided persuasive evidence including documentary evidence which demonstrated that levels of pay for program co-ordinators and youth workers, including for the applicant, have not been related to gender. I further find that the applicant’s termination is not attributable to any discriminatory treatment but rather is based on her refusal to work Saturdays. Again, there was documentary evidence in support of the respondent’s actions in relation to the applicant’s termination. The applicant’s allegation that she was subject to other discriminatory treatment because of sex is not supported by the evidence. It may be that there were issues around the corporate respondent’s management practices and some resulting employee discontent, as suggested by the applicant and others, but there is no evidence to indicate any ongoing discriminatory treatment of the applicant as alleged.

Summary of the Key Evidence

7Rapport Youth & Family Services is an agency providing counselling and related support services for youths in the Peel Region. The applicant joined Rapport in January 2008 as a youth worker in the ECLYPSE program. ECLYPSE is a youth drop in program at which various counselling and support services are provided to youth. The applicant was paid $17.25 an hour ($31,295 per year).

8In September 2008 the applicant was offered the position of program co-ordinator for the ECLYPSE program with an increase of 36 cents per hour or $1,550 a year. There was a dispute as to whether the applicant was offered a further $500 a year to take this position (the applicant saying no, the respondents saying yes). There was a further dispute over what range of responsibilities the offered program co-ordinator position would have. The applicant testified that it included supervision of other ECLYPSE staff while Mr. Sherman and Ms. Manning testified that the supervision of staff remained with Ms. Manning. In the end the applicant declined the program co-ordinator position on the grounds that the offered rate of pay was inadequate.

9The applicant testified that the program co-ordinator position was subsequently offered to a newly hired male youth worker, Donnavan Dunn, and that Mr. Dunn was offered more money that she had been. Mr. Dunn did not take the position.

10I heard testimony from Tamar Cox and Gilda Capraro, Ms. Manning, Mr. Sherman and Donnavan Dunn on the specific issue of whether Mr. Dunn was, in fact, offered the program co-ordinator’s position and, if so, at what rate of pay. Ms. Cox, a former youth worker at Rapport from January to December 2008, testified that she had been told by Mr. Dunn, a friend in addition to a fellow worker, that he had been verbally offered the position of program co-ordinator of the ECLYPSE program either at or following a meeting with Mr. Sherman and Ms. Manning in March or April, 2009. Ms. Cox testified that Mr. Dunn had told her he was not sure what to do, in particular about pay. Ms. Cox testified that Mr. Dunn had said he wanted $42,000. She testified that he had not said whether he had been offered a specific salary.

11Ms. Capraro, who was a Rapport employee from January 2002 to October 2009, testified that Mr. Dunn, who had been hired as a youth worker in the Prevention Diversion Program, had called her to say he was thinking of applying for the vacant program co-ordinator position declined by the applicant and that he wanted Ms. Capraro’s advice as to what salary to ask for. Apparently, a job ad had been posted but with no noted salary. Ms. Capraro testified that she suggested Mr. Dunn ask for $50,000. She testified that she believed that Mr. Dunn had been approached by either Mr. Sherman or Ms. Manning to apply for the job. She testified that Mr. Dunn had later told her that he had been offered the job although he did not identify any specific salary. Ms. Capraro also believed that the job included the supervision of other staff.

12Ms. Manning testified that she, as the manager of programs, had no responsibilities for hiring or terminating staff and that she had not offered Mr. Dunn the program co-ordinator position. Mr. Sherman testified that he did not meet with Mr. Dunn but had rather asked Ms. Manning to meet with Mr. Dunn to determine his possible interest in the program co-ordinator position. He testified that no job offer was made to Mr. Dunn and no salary for the program co-ordinator position was identified for Mr. Dunn. He stated that Mr. Dunn declined interest in the position.

13Mr. Dunn testified that he was hired as a youth worker by Rapport in November 2008 and that he did meet with Ms. Manning (but not with Mr. Sherman) early in 2009 at which time she asked him whether he was interested in the program co-ordinator position. He testified that he was never offered the job and no reference was made by Ms. Manning to the compensation for the job. He testified that when he asked Ms. Manning about what the compensation would be for the job she told him she did not know. Mr. Dunn later testified that he indicated that he would like $40,000-give or take- for the position and never heard back and this was as far as his dealings with Rapport went in relation to the program co-ordinator position.

14The applicant testified that in April 2009 the program co-ordinator position was filled by Jonathan Boxill. More accurately, Mr. Boxill was hired as the youth engagement co-ordinator, a newly created position to co-ordinate both the ECLYPSE program and the Youth Arts Against Violence program. This was a salaried position of $38,000 per year (approximately $20.88 an hour). Mr. Sherman testified that this position had greater responsibility than the program co-ordinator position offered to the applicant and hence greater pay. This position involved co-ordinating two program areas as well as further responsibilities for special events as well as the supervision of staff. Mr. Sherman noted that pay levels for program co-ordinator positions can vary greatly and that Mr. Boxill’s pay was not unusual. Mr. Sherman referred to letters disclosed by the respondents in which offers of employment were made to persons for program co-ordinator positions at Rapport. These letters identify the pay being offered to male and female candidates (names have been redacted), as follows:

$23.08 to a male candidate in September 2003;

$27.26 to a female candidate in August 2005; and,

$25.00 to a male candidate in April 1999.

15In November 2008 Everton Clennon was hired as a youth worker in the ECLYPSE program. Mr. Clennon was paid $17.73 an hour which was more than the $17.25 an hour the applicant was being paid. Mr. Sherman testified that as Executive Director he sets specific salaries for employees based on employees’ education and prior experience. He testified that salary scales for positions are set by Rapport’s Board of Directors and must take into consideration the funding available under each contract the organization signs with its funding agencies. Mr. Sherman testified that historically program funding and hence salaries have varied.

16Mr. Sherman reviewed the résumés of the applicant and Mr. Clennon which had been disclosed by the respondents. He testified that Mr. Clennon received a higher salary than the applicant because of his stronger related work experience. He testified that Mr. Clennon had 16 years of relevant experience working with youth while the applicant had 12 years, and had not worked with youth for the 8 years immediately prior to her employment by Rapport.

17Mr. Sherman went on to refer to letters disclosed by the respondents in which offers of employment were made to persons applying for youth worker positions in the ECLYPSE program. These letters date from 1999 to 2009 and identify the wages being offered to male and female candidates (names have been redacted), as follows:

$15.00 an hour to a male candidate to begin in October 2000;

$15.00 an hour to a female candidate to begin in December 2000;

$15.50 an hour to a male candidate to begin in July 2000;

$15.61 an hour to a female candidate to begin in October 2005;

$15.85 an hour to a female candidate to begin in September 1999;

$16.00 an hour to a female candidate to begin in June 2000;

$16.50 an hour to a male candidate to begin in June 2009;

$16.50 an hour to female candidates to begin in April 2007 and Jan 2009;

$17.03 an hour to a male candidate to begin in May 2007;

$17.25 an hour to a female candidate (the applicant) to begin in January 2008; and,

$17.73 an hour to a male candidate (Mr. Clennon) to begin in November 2008.

Mr. Sherman testified that the applicant received the second highest offered salary, only surpassed by Mr. Clennon.

18The applicant testified that in April 2009 Ms. Manning told ECLYPSE staff (Tamar Cox, Everton Clennon and the applicant) that as of June 2009 their hours of work would change and that they would be required to work on two Saturdays of every month. The applicant testified that it was at this meeting that Ms. Manning asked her “Is this the last straw?” a comment the applicant interpreted as a sign that the organization intended to get rid of her. Ms. Manning testified that she did not recall having made this comment. Ms. Manning then stated that if she had made this comment or something similar it would not have been a put down but rather a general observation that the change in schedule would be difficult. She testified that she believed she had a positive and supportive relationship with the applicant.

19The applicant testified that she felt the proposed change of hours was an unacceptable change to her contract and that she had the right to say no. The applicant testified that she subsequently decided that she would not work Saturdays. She testified that she told the organization that she was “not available” on Saturdays but did not offer any further explanation for why she did not want to work on Saturdays.

20On May 6, 2009 the applicant wrote to Mr. Sherman to say she was unable to consent to the change in schedule. On the same day Mr. Sherman wrote to the applicant to state that she was expected to comply with the decision to change the schedule and not to do so could lead to further disciplinary action.

21On May 27, 2009 the applicant wrote to Mr. Boxill to say she was unavailable to work on Saturdays. On the same day Ms. Manning wrote to the applicant to say that the expectation was that all ECLYPSE staff would work Saturdays and the applicant was not exempt and that further discipline could result.

22On June 7, 2009 the applicant’s employment with Rapport was terminated after the applicant failed to appear for work on Saturday June 6. There was a dispute as to whether the applicant had been scheduled to work on June 6.

ANALYSIS

23Section 5 of the Code provides as follows:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

24I do not find the applicant’s claim that she was differentially treated because of her sex to be persuasive. The applicant’s initial claim is that she was offered the program co-ordinator’s position for a nominal increase in pay only to have the same position offered to a new, less experienced youth worker, Donnavan Dunn. However, based on the evidence presented, I do not accept that Mr. Dunn was offered this position. Mr. Sherman, Ms. Manning and Mr. Dunn, himself, testified that he was not offered the position, that he was only asked if he was interested.

25It appears Ms. Cox and Ms. Capraro believed Mr. Dunn had been offered the job based on their understanding of what Mr. Dunn had said to them. I prefer the consistent evidence of the parties directly involved in the discussions about the program co-ordinator position, namely Mr. Sherman, Ms. Manning and Mr. Dunn, to the evidence of the witnesses who were not present. However, more importantly, even if Mr. Dunn had been explicitly offered the youth co-ordinator position there is no evidence that a specific wage had been offered to him. Mr. Sherman, Ms. Manning and Mr. Dunn testified that no specific salary was offered. I note Ms. Capraro’s evidence was that Mr. Dunn had asked her advice on what salary to ask for in light of having received no indication of a specific salary for the job.

26The key issue here is that there is no evidence that Mr. Dunn was offered more money than the applicant for the program co-ordinator’s position or would have been and as such there is no evidence to find that the applicant was differentially treated because of her sex in regards to pay for the program co-ordinator’s position.

27It is important to note that the only gender related issue raised by the applicant in relation to the program co-ordinator position was pay.

28Further, I do not accept that the later youth engagement co-ordinator’s position that was offered to Mr. Boxill in April 2009 supports an inference that the applicant was differentially treated in terms of pay. It is true that the youth engagement co-ordinator’s position was paid more than the program co-ordinator position offered to the applicant. However, I accept that the youth engagement co-ordinator’s position has more responsibility given it involves co-ordinating and supervising two program areas, ECLYPSE and Youth Arts Against Violence program.

29I also find it relevant that historically Rapport has paid various program co-ordinators a range of salaries and there is no pattern that I could discern, based on the documents disclosed by the respondents, that women have received lower wages than men in program co-ordinator positions.

30The applicant alleges that she was treated differently than Mr. Clennon on the basis that he received a higher wage than she did although they were both youth workers working in the same program at the same time. I find that Mr. Sherman provided a credible non-discriminatory explanation for this. I accept that Mr. Clennon was paid more based on the fact that he came to Rapport with more related experience having worked with youth for longer than the applicant.

31I also find relevant the further documentary evidence disclosed by Rapport that shows that historically there has been variations in the wages of youth workers and, in my view, these variations do not show a pattern of men being paid more than women. I note that the applicant’s pay was the second highest amongst identified youth workers (albeit less than Mr. Clennon’s). I further note that the youth worker who replaced the applicant after her employment was terminated in June 2009 was a male who received a lower hourly wage than the applicant had earned ($16.50 as compared to the $17.09 paid to the applicant).

32I do not accept the applicant’s contention that her termination was, in some measure, related to her sex. There is no dispute that all ECLYPSE youth workers namely Ms. Cox, Mr. Clennon and the applicant were told that the program was going to change its hours so as to be open on Saturdays in order to provide a more accessible drop in centre for area youths. I do not see how this planned change can be interpreted as subjecting the applicant to differential treatment based on her sex.

33The applicant clearly did not like this change and argued that she was not contracted to work these new hours. She refused to work Saturdays and made this clear to her management. She was warned that her refusal could lead to further discipline. Her employment was then terminated. Again the respondent has a non-discriminatory reason for its treatment of the applicant that I find persuasive. The applicant refused to follow a directive issued to all program staff that the corporate respondent wanted to implement in order to improve its services. She did not follow this directive. Whether Rapport, as an employer, had the authority to oblige employees to change their hours is not the issue I must decide. It is whether their actions discriminated against the applicant. I find that they did not.

34I would note that the applicant did challenge her termination to Human Resources and Skills Development Canada (“HRDC”) in an effort to receive Employment Insurance Benefits as of the date of her termination. The HRDC’s Board of Referees determined in a decision that was before me that the applicant was not eligible for Employment Insurance as of the date of her termination because she had lost her employment due to her misconduct.

35The applicant was particularly concerned about the question she alleged Ms. Manning directed towards her when the issue of changing staff hours was first raised namely, “Is this the last straw?” As noted, the applicant interpreted this comment to mean that the respondents had the intention to get rid of her. If this specific comment was indeed made it might suggest that there was some tension between the applicant and Rapport and its management. If this comment was indeed made it might even mean that Ms. Manning knew that the applicant would not like the intended change in hours, that Ms. Manning suspected that the applicant might fight the proposed changes, that it might be a “last straw” for the applicant in terms of her feelings about Rapport and her interest in working there.

36However, even assuming the comment was made and it does reflect some tension between the applicant and her employer, I do not find that the motivation for the change in the applicant’s hours was to get rid of the applicant. I do not accept that the respondents’ subsequent treatment of the applicant when she refused to follow the requirement to work Saturdays was related to her sex. I accept that the reasons for the change in hours were based solely on the corporate respondent’s interests in improving its services and that the applicant’s absolute refusal to change her hours of work provides a reasonable non-discriminatory explanation for why the corporate respondent terminated the applicant’s employment.

37The applicant submitted that all of the specific allegations that I have already cited were merely part of the ongoing way in which she was unfairly treated by her employer. While the evidence did reflect that there were issues with management-employee relations at Rapport and a measure of discontent amongst some employees about management practices, this is not the issue before me. The issue I must decide is whether there has been a violation of the Code and based on the evidence, the applicant has not shown that she was discriminated because of her sex. As a consequence the Application is dismissed.