Moses Furic v. Knoll North America Corp., 2010 HRTO 1334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Moses Furic

Applicant

-and-

Knoll North America Corp.

Respondent

DECISION

Adjudicator: Sherry Liang

Date: June 11, 2010

Citation: 2010 HRTO 1334

Indexed as: Furic v. Knoll North America

APPEARANCES:

Moses Furic, Applicant ) Glen Morrison, Representative

Knoll North America Corp., Respondent ) Robert Dunford, Counsel

1This is an Application filed on December 15, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The applicant alleges discrimination in employment on the basis of disability and race. He self-identifies as a black man of African descent, from Sudan. The applicant was suspended from the workplace as a result of an altercation with a fellow employee. His employment was subsequently terminated when he refused to attend anger management counselling as a condition of returning to work. The applicant alleges that his employer, Knoll North America Corp (“Knoll”), violated his rights to equal treatment on the grounds of disability in that it believed he had a disability of uncontrollable anger. He also alleges that the perception that he suffered from uncontrollable anger was based on a stereotype of black men.

THE EVIDENCE

3The Tribunal heard evidence from the applicant, a co-worker, Rony Sainvil, and the applicant’s Team Leader, Daljit Singh, with respect to the altercation. The Tribunal also heard evidence from the respondent’s Senior Manager for Materials and Production Control, Kelvin Rainey, and its Human Resources Manager, Ellen Blahitka, with respect to the disciplinary action taken against the applicant.

4In many respects, the evidence of the witnesses was consistent. Where they differ, and I found it necessary to reconcile the different versions of events, I have made findings of fact based on what is most reasonable and probable in the circumstances. In general, I found the evidence of Mr. Singh as to the incident of October 22, 2008 to be the most reliable. His testimony was given in a straightforward and credible manner without any hint of self-interest or other motivation that would affect his candour. His oral evidence was supported by a tape recording of a phone call that he made to his supervisor the same evening, in which he gave an account of the events.

5The applicant started working for the respondent in February 1998 as a temporary worker and joined its permanent workforce in April 2000. Until the time of these events, his employment record with Knoll was free of discipline. He worked as a materials planer.

6On October 22, 2008, the applicant arrived at work at about 2:30 p.m. He had been using a locker for a few days to store his work clothes, safety glasses and gloves, but had not put a lock on it. When he arrived at work, he discovered that someone else had placed a lock on the locker. He states that he put a note on the locker asking that the lock be removed, with his name. Rony Sainvil states that the note said “if you don’t move your stuff from the locker, I will break the lock”. The applicant states that his note simply stated “please move your lock and leave the locker open”.

7Rony Sainvil was the individual who placed the lock on the locker. He states that he was told by its previous occupant that he could take the locker. When he went to put his lock on it, he found a sweater in it. He asked the previous occupant, Samuel, if the sweater was his and Samuel told him that it was dirty and to just throw it into the garbage, which he did. Mr. Sainvil stated that he saw no safety glasses or gloves in the locker.

8When Mr. Sainvil arrived at work on October 22, he found the note from the applicant. Shortly afterwards, the applicant drove by on a forklift, and stopped to talk to Mr. Sainvil. The applicant and Mr. Sainvil disagree about the precise contents of the conversation. However, it is not in dispute that the applicant wanted Mr. Sainvil to open the locker and take his lock off, and Mr. Sainvil did not want to. The applicant believed that his possessions were still in the locker, and that Mr. Sainvil was refusing him access to those possessions. Mr. Sainvil did not think that any of the applicant’s possessions were in the locker, and did not think there was any reason to open it.

9Regardless, the two men ended up in a stand-off. Their discussion became more animated, resulting in yelling and an exchange of insults. In the applicant’s oral testimony, he stated that he was only raising his voice in order to be heard above the machinery in the area. I do not accept this. The other evidence, including the evidence of Mr. Sainvil and the applicant’s own statement to the company the next day, supports the conclusion that both men were yelling at each other.

10The applicant went to get his Team Leader, Daljit Singh, who was in the office. Mr. Singh accompanied the applicant back to the locker. Mr. Singh then tried to mediate between the two men, but the discussion turned even more heated. At some point, the applicant realized that Mr. Sainvil had thrown away his sweater. The two men began yelling and Mr. Singh was afraid that the altercation would turn physical. Mr. Sainvil said “let’s go outside” and the applicant said he would see him outside.

11It should be noted that although in his oral evidence, the applicant denies saying this, the evidence of both Mr. Sainvil and Mr. Singh supports the conclusion that he did respond in this way. He also gave a statement to the company the next day, during the investigation of the incident, which corroborates this. However, I also accept the evidence of the applicant that, at one point before this, he had asserted that he did not want to fight.

12I find that both men engaged in personal insults against the other, using hurtful words, and that each responded in kind, escalating the confrontation. Each spoke of “going outside” to continue the argument.

13The verbal confrontation continued for a few minutes, with Mr. Singh standing between the two men and using his arms to ensure that they stayed apart. Mr. Singh told them that he would call security if they did not stop. Eventually, Mr. Singh calmed the men down enough that he was able to convince the applicant to go home (it was the end of his shift). Mr. Sainvil went back to work.

14The applicant’s evidence was to the effect that Mr. Sainvil was the aggressor, and that he responded to the insults and verbal aggression in a measured manner. On review of the evidence as a whole, I am satisfied that both co-workers engaged equally in the confrontation. It is apparent that Mr. Singh was genuinely afraid that the verbal confrontation would escalate into a physical confrontation, and that it was with great difficulty that he managed to separate the two men and convince them to go their separate ways.

15Mr. Sainvil’s evidence corroborated that of Mr. Singh in many respects although, like the applicant, he tended to paint the other participant in the altercation as more of the aggressor.

16That same night, Mr. Singh phoned his supervisor and left a message about the incident, which was recorded and entered into evidence. In his message, he states that the two men got into a very loud argument which almost turned into a fight. He stated that in his opinion, both were at fault and he could not say that one was more responsible than the other. Mr. Singh states that “I think it may have to go to HR. It was really bad”.

17The following day, the company’s representatives interviewed the applicant, Mr. Sainvil, Mr. Singh and another co-worker who witnessed the confrontation. The co-worker told the company’s representatives that the two men were in a very heated argument, were very angry with each other, and that he felt they almost got into a fight. He stated that Mr. Singh was between them preventing them from a physical confrontation and that in his view, if Mr. Singh had not been present, the two men would have come to blows.

18Based on the statements, the company decided to impose three-day suspensions on each man. It also decided to impose, as a condition of continued employment, that each be referred to the Employee Assistance Program (“EAP”) for anger management counselling. The applicant and Mr. Sainvil were advised of this in separate meetings on October 30 and were told they could return to work that day if they agreed to the terms and signed letters confirming their agreement. Mr. Sainvil agreed, and returned to work on November 2. The applicant stated that wished to review the matter further. He was asked to review the papers that the company gave him and come back the next day to meet with the human resources representative.

19The applicant states that when he reviewed the papers at home, he felt the company was treating him unfairly. He did not believe himself to have any anger management problems. He consulted with his legal advisor, and called the company the next day to say that he was not coming in to see the human resources representative. The human resources manager then called him and asked to meet with him. They met on November 6, and she tried to persuade him to sign the papers. The applicant refused, and remained off work. On November 17, the vice-president of the company called the applicant at home and tried to persuade him to agree to the terms, but the applicant again refused. The applicant maintained in these discussions that he did not have any anger management issues and he would return to work but he would not agree to the terms.

20On November 18, the company sent the applicant a letter advising that he was deemed to have resigned his employment.

21The evidence of the company’s human resources manager was that when Knoll considered what discipline, if any, to impose on the two individuals, it reviewed other similar incidents. One of the incidents occurred in 2007, and involved two co-workers who were not black. The three-day suspension and referral to the EAP was consistent with the discipline imposed in this prior incident.

22This witness also stated that a referral to the EAP does not mean that an employee is required to undergo anger management counselling. It is the EAP that determines whether and what form of counselling to recommend to the employee, and this information is not shared with the company. The company is only advised of how many EAP sessions are required, and when they are concluded. Despite this evidence, it is clear from the letter of October 30 that the expectation was that some form of anger management counselling would take place. In Mr. Sainvil’s case, he stated that he attended three sessions through the EAP, for a total of about five to six hours.

23The evidence is that referral to the EAP is kept confidential between the company and the employee. Other employees are not told of these referrals, unless they choose to share this information.

24The company has a Workplace Violence and Firearms Policy, which came into effect on September 1, 2001. Prior to this, the company did not have a specific policy directed at violence in the workplace but developed this partly as a reaction to a violent and deadly incident at one of its plants in the United States. It describes its policy on workplace violence as one of “zero tolerance”. The Human Resources Manager explained that had the two men engaged in a physical fight on October 22, 2008, their employment would have been terminated. Because they stopped short of a physical fight, the decision was to impose a suspension instead with the referral to the EAP.

25The applicant stated that he felt black employees were being disproportionately referred to the EAP for anger management counselling. He states that he knew of four black workers at Knoll, including himself, who have been referred.

26As it happens, the Tribunal is aware of two other instances in which black employees of Knoll have been required to attend EAP counselling as a condition of returning to work after a workplace incident. In Adams v. Knoll North America, 2009 HRTO 1381, the Tribunal found that the company had discriminated against the applicant on the basis of race by requiring anger management counselling as a condition of returning to work after a three-day suspension. In Barfi-Kwabena v. Knoll North America Corporation, 2009 HRTO 619, the Tribunal found that there was no evidence supporting the allegation that a three-day suspension and referral to the EAP was related to the applicant’s race.

27The applicant in Adams v. Knoll North America gave evidence at the hearing before me, which the applicant’s representative urged me to accept as similar fact evidence. Ultimately, his evidence was not helpful in my assessment of the issues. Some of it was impressionistic and had no bearing on the specific facts of this case; in other parts of his evidence, he sought to dispute findings of fact made by the Tribunal in the decision on his application.

28The parties agreed that the Tribunal could rely on the facts found in para. 40 of Adams v. Knoll North America, to the effect that of ten workers referred to the EAP for anger management counselling in the past five years, five were Black men, two were Asian men, one was an Asian woman, one a Caucasian woman and one a Caucasian man. I heard no evidence about the racial composition of the workforce generally; although there is no doubt that it is diverse.

DECISION

29The applicant does not challenge the three-day suspension imposed on him by the company. He does not allege that this disciplinary measure was discriminatory. Rather, he claims that the requirement that he attend anger management counselling as a term of continuing to work for Knoll was discriminatory, in that it reflected a stereotype that black men have a propensity to anger and violence.

30I am guided in my analysis by the following principles, expressed by the British Columbia Human Rights Tribunal in a decision on racial discrimination:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 at para. 482.

31I accept that there exists in our society a stereotype that black men are prone to violence and criminal behaviour, which can lead to a greater monitoring and scrutiny of their behaviour.

32The existence of the general stereotype does not mean, however, that it was a factor influencing the actions taken by the company following the October 22 incident. The question before me is whether the applicant has shown, on a balance of probabilities, that his race was a factor in the decision to require him to attend anger management counselling.

33On a consideration of all the evidence, I cannot find that the applicant’s race was a factor in the company’s decision. The company did not act rashly or quickly. It interviewed various eyewitnesses and considered both the events of that evening and other similar incidents. The most comparable incident that it took into account did not involve black employees. It is clear that the company’s assessment of the situation was influenced by the account of Mr. Singh, and of the co-worker who observed the interaction between the applicant and Mr. Sainvil, both of whom felt that the situation stopped just barely short of a fistfight.

34That is not to say that the company was justified in seeing the incident as symptomatic of a larger “anger management” problem on the part of either man that required a referral to the EAP. Indeed, given the applicant’s history with the company, it is apparent that this incident was out of keeping with his general behaviour in the workplace.

35On the other hand, it does appear that the company has taken a strict line on incidents which it perceives as exhibiting or bordering on workplace violence. The Tribunal’s role is not to assess whether the company was justified in its reactions to the incident, but whether race played a factor in those reactions. It is possible to disagree with the company’s assessment that the employees required a referral to anger management counselling. It may even be viewed as an overreaction, albeit based on the company’s history with workplace violence. The task for the Tribunal is not to determine the fairness or the proportionality of the company’s response, although an assessment of these may assist in determining whether race may have played a role in the company’s decision-making.

36In this case, there was no evidence of similar incidents involving non-black workers that did not result in the same measures. There was evidence that a number of workers, blacks and others, have been referred to the EAP for anger management counselling. This evidence is not particularly helpful in the absence of other information enabling a comparison of these other incidents with the one before me.

37In general, it may be that the company has come to see a referral to anger management counselling as a standard measure in response to incidents that involve actual or potential violence. Whatever may be the merits of its approach, I have no direct evidence nor can I infer from the evidence before me that decision to require anger management counselling of the applicant was based in whole or part on his race, or any stereotype about black men and anger or violence.

38I have sympathy for the applicant’s perception of the events. No doubt, he felt that he was being labelled as having “anger management” problems. And it was clearly particularly hurtful to this applicant, who has come from a country with a history of violence and believes himself to have left that history behind. It may also have been reasonable for the applicant to feel that his treatment was based on stereotype. Nonetheless, I am unable to come to the conclusion that his perception is supported by the evidence. Perhaps, through this case, Knoll has come to a greater appreciation of how its actions and judgements can be perceived by its employees, particularly those like the applicant, regardless of the company’s own motivations.

39Although the Application alleged discrimination on the ground of disability rather than race, the case was presented as one based on racial stereotype. In any event, the evidence does not support a conclusion that “anger management” is a “disability”, or that the company discriminated against the applicant on the basis that it perceived him to have this “disability”.

40In the result, the Application is dismissed.