HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emeka Chukwudi

Applicant

-and-

The Corporation of the City of Brampton, John Marshall,

Helen Ferreira and Penny Wyger

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: January 20, 2010

Citation: 2010 HRTO 127

Indexed as: Chukwudi v. Brampton (City)

APPEARANCES BY

Emeka Chudwudi, Applicant ) self-represented

The Corporation of the City of Brampton, )

John Marshall, Helen Ferreira and Penny Wyger, ) Susan L. Crawford, Counsel

Respondents )

1This Decision relates to two Applications. One Application was filed December 23, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and will be referred to as the “transition Application”. The other Application was filed March 16, 2009 under section 34 of the Code and will be referred to as the “section 34 Application”. In an earlier Interim Decision, I directed that both Applications would be heard together and that the hearing would be bifurcated, 2009 HRTO 1805.

2The hearing into these Applications was held on November 27, December 8 and 10, 2009 and January 11, 2010. The hearing was conducted in accordance with the Rules of Procedure governing Transition Applications.

3In accordance with the expectation that transition applications should be conducted in a fair, just and highly expeditious manner, I adopted the following procedures:

• I would consider the allegations of racial comments and reprisal separately from the allegation that the applications for employment were rejected contrary to the Code;

• The applicant was asked to adopt the detailed complaint and statements of facts he had submitted and given an opportunity to elaborate further before cross examination;

• Ten of the respondents’ witnesses were asked to adopt their “will say” statements and elaborate on additional matters before the applicant was given an opportunity to cross examine them;

• Seven of the respondents’ witnesses submitted affidavit evidence. Having explored with the applicant the nature of any cross examination he would have of these witnesses, I ruled that I would accept the affidavits without cross examination. While these witnesses gave affidavit evidence that directly contradicted the applicant’s evidence, the contradictions were not material to my findings of fact.

Basis of the Applications

4The applicant self-identifies as a Black man, born in Nigeria. He alleges that the respondents discriminated against him with respect to employment from May to August 2007 on the basis of age, colour, ethnic origin, place of origin and race. He also alleges that the respondents took action to punish him because he filed a human rights complaint against them. He asserts the personal respondents made racially discriminatory remarks and that the corporate respondent failed to hire him for 27 positions he applied for in the six months prior to October 2007.

5In the section 34 Application, the applicant asserts that the respondents improperly called the police to arrest him in November 2007 and improperly interfered with his employment causing him to lose his employment in April 2008 and again in September 2008.

Racist Comments – the Applicant’s Evidence

6The applicant worked for Primary Response, a security company that held a contract to provide security services to the City of Brampton (the “City”). In April 2007, he was assigned to provide security services on the 6th Floor of the City’s City Hall. He applied for various permanent positions with the City over the course of several months.

7On May 25, 2007, the applicant claims that he spoke with Helen Ferreira, Human Resources Director about his job applications to the City. During this conversation, she said his name was hard to pronounce and “jaw breaking” and asked if he had another name. He replied Ernest. On another occasion, she asked him, “Where are you from originally.” The applicant asked her if it played a role. She said, “Yes, it does, in Brampton, because of your kind of name and kind of accent. You have a strong and maybe offensive accent to some people.” When he answered that he was a Christian from West Africa, she said “I hope you are not from Nigeria. Nigeria has a bad reputation in Canada a history of corruption, abuse and disrespect of women”. She laughed when advised that his name came from the Igbo language and told him that the City preferred education from colleges it knows about.

8Notwithstanding this, he applied for various positions with the City and continued to ask Ms. Ferreira about the status of his applications. She began avoiding him. She threatened to tell his employer that he was applying for jobs at the City and that he would lose his job. She told him he would not be hired because he was not Canadian, did not have Canadian education, and values, or experience. She stated that hiring at the City is not based on qualification, but “rather on perceived acceptable identity of applicant.”

9On August 10, 2007, Ferreira furiously responded when he asked her about his résumés, calling him a “nagger” repeatedly.

10The applicant stated that on June 7, 2007, John Marshall introduced himself as the new Interim City Manager. When the applicant told him that he had applied for a job with the City, he laughed and stated “I know that people like you will have difficulty in accessing jobs here, due to complex systemic rules, coupled with nepotism policies, which is usually unfavourable to equal opportunity concept for people of colour especially those with unique immigrant hereditary identities, like you.” He stated “”at 1989, there were hardly a black man considered fit and worthy to work with COB [City of Brampton]…but things seems to be a little bit changing…”.

11When the applicant approached Mr. Marshall in August 2007 to remind him about his offer to help, Mr. Marshall exploded at him, saying “City of Brampton is not a jungle bed of roses for black Africans poetry and cannot be polluted and flooded with it.”

12The applicant stated that on June 20, 2007, he spoke with Penny Wyger, the Commissioner of Corporate Services and City Solicitor, about his job applications. She had difficulty pronouncing his name and said she would call him Ernest instead. She said that he may be having difficulty getting a job because of “your alien and ethnic identity.” She also stated “…your kind of person, names, high school/college attended, origin, experience, locations and neighbourhood you live at, signals who you are and influences psychology of hiring decisions.” She also told him his “strong accent and abnormal alien perspective” would make it difficult to hire him.

13On another occasion, June 22, 2007, Ms. Wyger falsely told him that the positions he had applied for had already been filled.

14On June 26, 2007 when he followed up on another job application, she asked him “why did you not tell me initially that you were an African from Nigeria.” She also stated that the City “is not a jungle paradise.”

15On June 27, 2007, he received a call from Lisa Ruszin in Human Resources. She told him his names were hard to pronounce, and asked him if he was a Canadian citizen, if he was married, if any family members worked for the City because of the City’s nepotism policy. She asked him how long he had been in Canada and if he had any Canadian experience or white collar experience. She stated, “Your best bet will be to apply for people of colour positions, not the kind of positions you earlier on applied.”

16On August 8, 2007, the applicant had a discussion with Debbie Reader, in the City Manager’s office. She agreed with him that they were treating him unfairly and differently and said that it may be because of “colour or you are unlikeable to them.”

17On August 9, 2007, the applicant overheard Ms. Wyger saying to Ms. Reader that she didn’t want the applicant here “let him go back to their jungle pit.”

Respondents’ Evidence on Discriminatory Remarks

18The respondents and Ms. Reader and Ruszin vehemently denied that they made any of the racist remarks and stated that they would never speak in that way in any situation. Further, John Marshall’s passport shows that he left the country on June 3, 2007 for a trip to Ireland so it was not likely that he could have spoken in person to the applicant on June 7, 2007.

Conclusion on Discriminatory Remarks

19Apart from the inherent improbability of senior members of human resources and the Interim City Manager making such overtly derogatory and racist comments, there is the fact that the evidence submitted by the applicant which he sought to rely on to corroborate his allegations was not reliable. Although the applicant produced letters of complaint allegedly sent to the Mayor’s office, the log book does not record receipt of any material by the applicant. The occurrence forms that document some of the above allegations that the applicant claims he filed with the City are not found in the City’s records or in the records of Primary Response. The applicant’s personal diary notes which were first produced at the December 8, 2009 hearing do not convince me that the allegations contained in them occurred.

20The evidence of Tom Fulford, the manager at Primary Response and Eric Lizotte, Client Services Manager of Primary Response was that the applicant never raised these allegations with them. Dianne Corner, General Manager of Primary Response denied receiving an internal memo from the applicant, dated May 30 2007, alleging discrimination by Ms. Ferreira.

21I completely disbelieve the applicant’s allegations described above and find him not credible. I cannot accept that his description of the alleged events is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions; Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A). Accordingly, with respect to other allegations, I give the applicant’s evidence no weight unless it is corroborated by other reliable evidence.

August Reprimand

22Ms. Ferreira testified that the applicant approached her repeatedly about assistance in getting a job with the City. She advised him that the City had a hiring protocol and it would not be appropriate for her to attempt to subvert that process. Ms. Ferreira subsequently learned from her assistant that the applicant had approached her as well. When the applicant approached the Mayor, who subsequently sent a letter of encouragement on the applicant’s behalf, Ms. Ferreira contacted Julian Patteson of Corporate Security about her concerns and Mr. Patteson stated he would speak to Primary Response, the applicant’s employer.

23Alain Normand, Manager of Corporate Security contacted Richard Franko, the City’s onsite supervisor of Primary Response staff. Mr. Franko spoke with the Primary Response Contract Manager, Eric Lizotte and told him to advise the applicant to stop bothering City employees. Mr. Lizotte testified that he spoke with the applicant about not seeking assistance to obtain positions with the City.

24I find that it was not any form of reprisal or employment discrimination to speak to the applicant’s employer to instruct him not to approach the City’s employees about getting a job. It does not amount to discrimination in employment to advise all applicants that they must comply with hiring protocols. To establish a reprisal under section 8 of the applicant must first establish an attempt to enforce his rights under the Code. The applicant’s attempts to badger City staff were not an attempt to enforce his rights under the Code.

November 2007 Removal from City Site

25The applicant filed a complaint with the Ontario Human Rights Commission outlining the above allegations in October 2007. The complaint was delivered to the respondents in November 2007.

26When Ms. Wyger received the complaint, she had concerns about the safety of the personal respondents. Given the aggressive language in the complaint and the false fabrications, she believed that the applicant may be delusional or vindictive. Mr. Marshall expressed similar concerns. As a result, the City assigned a personal security guard to each personal respondent. In addition, the City shared a copy of the complaint with Primary Response and asked them to reassign the applicant to another location, which they did.

27While interfering with an applicant’s employment because he or she has filed a complaint might constitute a reprisal in some circumstances, in this case the requisite intent is missing. The City’s actions were not intended to reprise against the applicant but to take steps to ensure the safety of city employees and officials.

28Part of my analysis includes whether the subjective reactions of Ms. Wyger and Mr. Marshall are objectively valid and whether they were influenced by the fact that the applicant was a Black male. Specifically, I have considered whether the personal respondents over reacted because of stereotypes about the propensity of Black males to react with violence.

29I agree with the personal respondents that the applicant’s complaint to the Commission in 2007 demonstrated that he had either fabricated or seriously misconstrued conversations between them. There is some reference to violent imagery in the complaint. While some persons may not have reacted the same way, I accept that some persons would be concerned about their safety in light of the comments in the complaint, whether the complaining person was Black or White: Abbott v. Toronto Police Services Board, 2009 HRTO 1909. Accordingly, I conclude that the personal respondents did not cause the City to act based on racial stereotypes.

November 2007 Call to the Police

30In addition, Ms. Wyger consulted with the City’s security department. They agreed that the language of the complaint was troubling.

31John Ryan of the Corporate Security Department contacted the Peel Regional Police (“Peel Police”) and sought their advice about the applicant in light of the language of the complaint. He subsequently learned that the Peel Police did not view the applicant as a threat.

32An officer with the Peel Police left a message for the applicant asking him to attend at the station which the applicant did on November 17, 2009. Much of what the applicant testified transpired at the station is not relevant, as the Peel Police are not a respondent in this Application. The only relevant evidence is that the Peel Police advised him that that the City had provided them with a copy of the complaint and was concerned that he may be unstable. After questioning the applicant and his wife, the Peel Police took no further action.

33The applicant alleges that the City’s decision to call the police was a form of racial profiling. I disagree. The City’s decision to contact the Peel Police was made after consultation with their security department and was based on a bona fide and objective concern that the applicant’s apparent delusions might pose a threat to City employees. As noted above, I do not find that race was a factor in this action.

Dismissal from Primary Response

34The applicant testified that his managers at Primary Response pressured him to withdraw the complaint against the respondent or face termination. The General Manager, Dianne Corner told him that the City threatened to revoke Primary Response’s contract with the City if he did not withdraw his complaint. The applicant’s employment was terminated in June 2008.

35Dianne Corner and Tom Fulford of Primary Response gave evidence that the applicant was denied a requested leave of absence from April 30 to June 9, 2008. The applicant nonetheless took the leave and when he returned there were no positions for him. Accordingly, they issued a Record of Employment to him in June 2008, citing shortage of work. Ms. Corner and Mr. Fulford stated that the City played no role in the decision to terminate the applicant’s employment.

36Dianne Corner denied pressuring the applicant in any way about the complaint. Similarly, Eric Lizotte, Client Services Manager with Primary Response testified that no one from the City threatened to cancel the contract because of the applicant’s complaint.

37I prefer the evidence of the witnesses from Primary Response over the evidence of the applicant, for reasons expressed above about the unreliability of the applicant’s evidence. I conclude that the City did not interfere in any way with the applicant’s employment.

Dismissal from Vista Security

38The applicant claimed that Martin Dambeau, the property Security Systems Administrator with the City pressured him to withdraw his complaint against the City in September 2008 and interfered with his employment at Vista Security. As a result, the applicant was fired from Vista Security in September 2008. Mr. Dambeau denied these allegations.

39In light of my earlier findings on the applicant’s credibility, I do not accept that the City interfered with the applicant’s employment with Vista Security.

Applications for Employment

40Another aspect of the Applications is that the respondents discriminated against the applicant when they failed to even contact him with respect to 25 applications he made between April and November 2007.

41First, I reject the applicant’s evidence that any of the respondents’ witnesses admitted that the respondent City systemically discriminates against “persons of colour”.

42Second, the City acknowledged that it received nine applications through Workopolis, an internet based recruitment system and denied that it received the remaining 16 applications. I prefer the evidence of the respondents that they only received nine applications. The respondents’ witnesses established that they filled approximately 500 vacancies each year and from June 2007 they used a system called Workopolis to recruit and assess applications. The personal respondents denied receiving any applications by fax, mail or in person from the applicant prior to June 2007 and I find their evidence more credible than the applicant’s.

43I have reviewed the job postings submitted by the applicant in respect of each job posting. I also heard the evidence of Paul Corbeil, Manager Staffing and Client Services. While Mr. Corbeil was not the recruiting officer involved in the nine applications, he testified that he spoke to two of the recruiting officers involved who are currently employed by the City. They could not remember the applicant’s specific application nor remember why they did not offer him an interview. Accordingly, the City relied upon Mr. Corbeil’s evidence as to why the applicant’s application may not have moved beyond the application stage.

44This is the best evidence available and I draw no adverse inference form the City’s inability to call more direct evidence.

45Paul Corbeil reviewed all the recruitment files for the nine positions, the résumés of everyone interviewed, including the successful candidates’ and the applicant’s and testified about the deficiencies in the applicant’s application that might have led to the applicant being passed over for an interview.

46The City received between 36 and 108 applications for each job posting, and a total of 606 applications. They conducted between three and 11 candidates’ interviews, and 46 interviews in total.

47The applicant’s applications all contained grammatical or spelling errors, and confusing information with respect to where he worked, when and what he did at each job. The applications appeared to incorporate wholesale words from the job posting, in circumstances where such incorporation was inappropriate. For example, in his application for Property Standards & By-law Enforcement Officer, the applicant asserted that he had worked as an enforcement officer for Yankee Stadium and Rockefeller Theatres (“YSRT”) in New York City. There were references in his description of his job duties that were copied from the job description, and would be inconsistent with the work of a person working in New York. For example, there is a reference in his application to “provincial standards” which would not be applicable to the American experience.

48In some cases, his application did not demonstrate the minimum required experience. In other cases, his application contained information contradictory to previous applications. At various times he asserted that he had acted as an enforcement officer with the YSRT in New York and at other times he asserted he was a strategic planner with the same organization during the same period. He also asserted that he held the position of Senior Executive Officer with the Ministry of Works and Ministry of Transport in Victoria, Nigeria during this period. In other applications, he asserted that he was a Manager with TRI TEC Industries Limited in Brampton during the same time period.

49Generally, the applicant’s applications did not demonstrate that he had obtained his education and work experience outside the country. On the contrary, the applicant indicated that he had obtained most of his education and qualifications in Canada, which is not the case. The applicant testified that the Workopolis on-line application system did not permit the entry of foreign credentials or experience. That assertion is disproved by other applications submitted by the applicant and other applications submitted by other applicants during the same competition. However, what is important for these Applications is that the applicant‘s ancestry would not necessarily have been apparent to the staff screening his application.

50I conclude that the City has demonstrated that the applicant did not obtain an interview for the nine positions applied for solely because in each case his application did not warrant it. There is also no doubt that the successful candidates had vastly superior and more focused education and experience directly related to the job description. I note that upon review of the successful applicant’s applications, several of them had foreign credentials or work experience (United States, Dubai) or had names that indicated that they had an ancestry outside of Canada.

51I conclude that the City’s recruitment processes did not discriminate, directly or indirectly against the applicant.

52The Applications are dismissed.