Jaime Comeau v. Community Solutions Ltd. and Lisa Kemp, 2010 HRTO 1391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaime Comeau

Applicant

-and-

Community Solutions Ltd. and Lisa Kemp

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: June 21, 2010

Citation: 2010 HRTO 1391

Indexed as: Comeau v. Community Solutions

AppearanceS BY

Jaime Comeau, Applicant ) Michael R. Phillips, ) Representative

Community Solutions Ltd. and Lisa Kemp, ) Catherine Milne, Respondents ) Counsel

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was subjected to discrimination on the basis of sex when she was terminated from her employment due to her pregnancy. The responding parties submit that the applicant’s termination was based on her job performance.

2A Case Resolution Conference (“CRC” or “hearing”) was held on September 25, 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. At the hearing, I heard testimony from the applicant and the personal respondent, Lisa Kemp (“Kemp” or “the personal respondent”), the applicant’s direct supervisor during the relevant time, Barb Claiman (“Claiman”), the Director of Community Solutions Limited (“CSL”), and Michelle Currelly, a former CSL employee.

BACKGROUND

3Shortly after being interviewed, on May 18, 2007, the applicant began her employment with CSL as a Rehabilitation Assistant (“RA”). Prior to her job with CSL, the applicant worked as a Personal Support Worker (“PSW”). The applicant was hired to assist individuals with acquired brain injuries to achieve their maximum functioning capability in accordance with a rehabilitation plan. The applicant travelled throughout a defined working region to her assignments.

4The applicant acknowledged at the hearing that her former job as a PSW was different than her expected role as a RA. A PSW is expected to assist clients with the performance of activities of daily living; in her role as an RA, however the applicant was not to perform tasks for her clients but rather enable them to do those tasks for themselves. This assessment of the requirements of the RA was consistent with the testimony of Ms. Claiman and the personal respondent.

5The applicant had two regular clients: OS and LP. In May 2007, she was provided training which included separately shadowing two other RAs working with OS. Each client required particularized treatment as set out in a treatment plan. OS, for example, required scripting and prompting in her daily activities using cue cards. As LP was a new client there was no formal training. Instead, time was provided in order to allow the applicant to establish a therapeutic rapport and determine how best to achieve the goals set out in an occupational therapist’s treatment plan.

6In late November or early December, the applicant telephoned her supervisor, the personal respondent, and told her that she was pregnant. In her Application and testimony, she confirmed that the personal respondent’s response was positive.

7The applicant claims that her working relationship with the personal respondent changed for the worse beginning in January 2008. She was impatient and hostile and did not respond to the applicant’s emails or phone messages. For example, the applicant began to feel hostility when she asked about an alternative to driving to Toronto during bad weather and queries about a wage increase. Also, the applicant was asked to attend a multi-day June conference in Aliston, when she would be eight months pregnant, but received no response to her email dated April 14, 2008 seeking further information. The applicant also received no response to her midwife’s letter dated April 17, 2008, which advised that the applicant should not travel due to “medical reasons”.

8In her testimony, the applicant stated she felt like she was being “treated like a piece of crap while being pregnant”. In March 2008, the applicant’s physician opined that her employer was trying to make her quit so that it would not have to pay her benefits while she was on maternity leave.

9On April 21, 2008, the applicant’s employment was terminated. The applicant was provided two weeks pay in lieu of notice.

10In her Application, and in her testimony, the applicant stated that at the time of her termination there were no issues or incidents with clients and she was not aware of any concerns about her job performance. Indeed, she had not received any written warnings about her performance and feedback from her clients’ families was positive. Since she was terminated shortly after informing her employer that she was pregnant and after her relationship with the personal respondent started to deteriorate, the applicant believes she was terminated due to her pregnancy.

11The responding parties assert that there were issues with the applicant’s performance prior to her notification that she was pregnant. They claim that despite issues being brought to her attention and despite being coached, and given ample time to modify her approach with clients, the applicant repeatedly made similar errors. She was unable to understand and employ the methods she was expected to use to provide services for her clients and as a result she was terminated because there was no hope she would improve in the job she was hired for.

12Moreover, the responding parties submit that the applicant did not make any specific accommodation requests.

ANALYSIS

13The question to be decided is whether the applicant was subjected to differential treatment in the course of her employment, denied accommodation requests and/or terminated in part because she was pregnant. I find she was not for the reasons which follow.

14After reviewing all the evidence and considering the parties’ submissions, on balance, I am satisfied that the applicant’s termination was due to concerns about how she performed her RA duties. In particular, I am satisfied that the applicant made repeated mistakes, despite coaching, in complying with the treatment plan for her clients. These mistakes negatively impacted the applicant’s ability to provide the services which she was hired to perform and which the corporate respondent was obliged to provide to clients. In my view, the responding parties terminated the applicant after it was determined that she was not capable of performing the RA duties expected of her.

15The applicant was unable to provide any significant direct evidence that she was subjected to discrimination arising out of her pregnancy. However, discriminatory actions are often by their nature, actions which cannot be verified by direct proof. As such, it may become necessary to infer discrimination from the conduct of an individual or individuals especially in circumstances in which differential treatment and/or termination is alleged proximate to an employer being informed of an employee’s pregnancy.

16In assessing the totality of the evidence of the parties, I find that the testimony of Ms Currelly, Ms Claiman and the personal respondent was logical, consistent and reasonable and supported by documentary evidence. By contrast the applicant’s evidence, as discussed below, was significantly inconsistent on important points. Additionally, the applicant’s testimony about the manner she performed her job, in my view, corroborated the reasons the responding parties stated they decided to terminate her employment. Accordingly, I am not satisfied that an inference of discrimination would be justified in this matter.

17Contrary to the applicant’s assertions, I find that there were ongoing issues with the applicant’s job performance, of which she was aware and which were central to her role as an RA, which pre-dated informing her employer about her pregnancy. The personal respondent’s supervision staff performance logs establish that the applicant was regularly made aware that the method in which she assisted OS and LP could negatively impact their rehabilitation and was not consistent with her RA role. The logs also confirm the applicant was coached on a regular basis, contrary to her evidence, in the proper manner of providing services to her clients before and after she informed them of her pregnancy and that despite specific coaching she repeated similar mistakes.

18For example, as indicated in a performance log entry dated September 6, 2007, the applicant reported she had volunteered LP to work at a radio station and was advised, by the personal respondent, that LP should have solicited the position on his own behalf. Despite this warning, another performance log entry dated January 4, 2008, notes the applicant was advised that she was committed to finding another volunteer opportunity for LP after the radio job fell through. Again, the personal respondent wrote that she had reminded the applicant that it was not her role to do such things. In a subsequent performance log entry dated February 1, 2008, the personal respondent noted that the applicant was doing everything for LP.

19Also in the performance log entry dated September 6, 2007, after noting that she was the contact person for LP’s dermatologist, the personal respondent reminded her that she needed to support LP in acting as his own contact person. In a subsequent performance log entry note dated November 16, 2007, after noting she had filled out pharmacy forms for LP, the personal respondent wrote that she reminded the applicant that her role must be to “teach him to do these tasks” since he will not always have someone to do it for him. Such assistance it was noted, and affirmed in testimony, increases the clients’ self-esteem and reinforces the applicant’s role in increasing his independence.

20The applicant was coached to think of the 10 second rule, which would allow her to stop and think before responding to a clients’ request to do things. Despite the past coaching, in her email to the personal respondent dated January 22, 2008, the applicant notes she was attempting to obtain a dermatologist referral for LP. In Ms. Kemp’s subsequent performance log notes dated January 28, 30, February 1, 4, 5, 11, 25, March 4, 10, and April 7, the basic theme about the applicant’s appropriate RA role vis-à-vis her clients is repeated to such an extent that I do not place much significance on the applicant’s testimony that she was unaware of any outstanding performance issues at the time of her termination, or the importance of performing her job in the manner expected of an RA by the responding parties.

21Moreover, I am satisfied that the sheer repetition of the complaints, despite specific coaching, outlined in the personal respondent’s performance logs corroborates her testimony that by February 2008, there was serious doubt that the applicant would ever become a successful RA.

22Although the applicant questioned the authenticity of the personal respondent’s performance logs since she had not seen them prior to filing her Application, I am satisfied they record concerns about the applicant’s performance during the relevant time. Indeed, I find the applicant’s April 13, 2008 email addressed to the personal respondent not only corroborates the substance of Ms Kemp’s performance log dated April 7, 2008 but also reflects the general nature of the respondents’ concerns regarding the applicant’s job performance which further reflect a continuum of concern with her performance as an RA prior to the time she informed her employer of her pregnancy. More importantly, and also contrary to the applicant’s testimony, her April email is persuasive evidence supporting that she had been fully aware of her employer’s concerns about her performance in relation to OS and LP prior to her termination.

23Further, I note the applicant did not, for the most part, take issue with the content of the personal respondent’s performance logs, when they were reviewed during the hearing, and her testimony implicitly affirmed the content of the performance log notes since she focussed, not on denying their content, but on justifying her conduct by stating her performance was the result of poor training and supervision. Indeed, her testimony corroborated the responding parties’ concerns that she was “doing” for clients as opposed to fostering independence which is the proper role for an RA.

24Beyond stating that her personal relationship with the personal respondent deteriorated, the applicant was unable to provide any particulars of how she was subjected to differential treatment beyond stating the personal respondent provided contradictory direction, did not answer her voicemail and email messages promptly and was abrupt with her during conversations. While the applicant may not have had the access to the personal respondent she wanted, I find little persuasive evidence supports her allegations. Instead, on balance, I find the documentary evidence from the applicant to support the opposite since it shows queries were followed up, and accordingly, this was another reason to place little weight on the applicant’s testimony.

25In her testimony, the personal respondent indicated while her staff performance logs start from September 2007, the issues concerning the applicant’s performance were evident from July 2007. The reasons attributed to gaps in the responding parties direct documentary evidence was related to Ms Kemp’s physical injury to her ankle, her summer vacation, and as admitted by the applicant, her high caseload in which she was responsible for managing a significant compliment, approximately double the average, of staff and clients.

26Accordingly, I am satisfied that contrary to the applicant’s allegations, that there were performance issues at the time of her termination and that there had been a continuum of concern by the respondents regarding her performance as an RA, but especially about her repeated failure to progress in her role despite coaching.

27If performance issues had existed for a significant period, the responding parties were asked the reason for extending the applicant’s probation beyond the initial six-months prescribed in the applicant’s employment contract. In response, the personal respondent affirmed that the applicant was a caring person and it was her belief that the applicant would grow into the position and become a good RA. However, things worsened when it became clear that the applicant’s approach did not change for the better. Also, it was becoming apparent that the applicant’s approach was jeopardizing her clients’ rehabilitation. For example, she was not using the cue cards appropriately, which was significantly integral to OS’s rehabilitation plan.

28While I can understand the applicant’s perception that her relationship with the personal respondent began to deteriorate from January 2008, I am satisfied that it was a result of the growing tension regarding the applicant’s inability to respond to coaching. Prior to that tension, as admitted by the applicant, the personal respondent responded positively to her pregnancy and assured her that it was not an uncommon occurrence at CSL. This was corroborated by the testimony of Michelle Currelly. Further, in an email addressed to the applicant dated December 24, 2007, the personal respondent mentioned new staff members which could take over clients while she was on maternity leave. In my view, this supports the personal respondent’s testimony that the applicant’s pregnancy did not become a relevant consideration.

29I do note that there was some discussion between the personal respondent and the applicant, as indicated in the performance log entry dated February 5, 2008, about the applicant’s pregnancy. In her view, this notation supports the applicant’s belief that she believed her pregnancy prevented her termination despite real concerns about her performance. In addition to contradicting the applicant’s initial allegations that she did not receive any warning her job was in jeopardy, the personal respondent’s log entry dated February 5, 2008, corroborates her testimony that her concern was for her clients. In that log entry, the personal respondent advised the applicant her job was at risk if she could not change her performance. In response, the notes record the applicant advised the personal respondent that she should not threaten her job while she was pregnant. The personal respondent’s recorded response was that the applicant’s pregnancy was not a reason to “allow clients to be at risk”. The applicant’s testimony concerning this exchange was consistent with the personal respondent’s notes.

30I am satisfied that the applicant’s perception of her work environment was causing her stress, as corroborated by her physician. However, I am not satisfied that the stress was the result of the respondent treating her differently because of her pregnancy. Instead, in the context, I find it more likely that the applicant was reacting to the concerns about her performance expressed by her employer. Indeed, from February 2008, the applicant was aware that if she continued to fail to respond to the coaching she had received she would be terminated.

31It is clear that the applicant believed that the responding parties could not terminate her employment while she was pregnant. This is not the case; a person can be terminated from employment as long as a Code ground is not a factor in the decision to terminate.

32In my view, the personal respondent’s logs were consistent with the testimony from the respondents that the applicant was unable to take feedback and put it into practice and this put clients’ rehabilitation at risk. As illustrated by the emails on record, this extended to the applicant’s problems with understanding administrative functions associated with her job such as in the proper methods for billing.

33At other times, the applicant argued that she was an adequate RA as evidenced by letters in support of her work by LP’s mother, her email exchanges with CSL and her assertion that she was given responsibility to train other employees. I placed little weight on this evidence for the following reasons.

34The undated letter provided by LP’s mother can be given little weight since it was unsigned, its author did not testify and it did not directly, with the necessary clarity, address the issues in dispute in this matter.

35Similarly, I can place little weight on the April 24, 2008 reference letter signed by the personal respondent which, while generally positive, is carefully worded with respect to any performance issues stating only the applicant always worked “to the best of her abilities” and commending her good attendance, timely submission of paperwork, and empathy.

36Further, the applicant submitted that the decision to allow her to train new staff after January 2008 refutes the alleged performance issues. I have considered this but am not satisfied the applicant provided training in a supervisory or direct sense or that the “training” amounted to more than a shadowing opportunity intended to provide new RAs with knowledge about the needs of particular clients. Further, the applicant’s submission that problems with her performance were due to poor training and supervision and not her inability to take instruction and understand her role as an RA is not sufficient to support a finding she was subjected to differential treatment and/or terminated on the basis of any Code enumerated ground.

37In my view, the questions which arose in the assessment of this matter are: what happened to the relationship after December 2007; and what were the reasons for the applicant’s termination in April 2008. The personal respondent testified that issues of the applicant’s job performance became evident in July 2007, but that her inability to respond to coaching in her role as an RA became a serious concern in January 2008. In the personal respondent’s view, the decision to terminate the applicant was not made in haste but occurred after many attempts were made to correct the way she performed her job and came only after she was warned her job was in jeopardy. By April 2008, in addition to her inability to improve her performance, the personal respondent felt there was no hope after listening to the applicant recount a recent interaction with OS. In addition to determining the applicant was not following OS’s rehabilitation plan, the personal respondent felt she had treated the client with disrespect. This was corroborated by an April 2008 notation, in which the applicant was noted as describing OS as manipulative and irrational.

38While I am somewhat concerned by the gaps in the respondent’s documentary record, especially around the time of the applicant’s termination, I find that the preponderance of evidence supports the respondents’ version of events. Further, and more importantly, I am not satisfied that an inference is warranted in this matter since the applicant’s testimony was contradicted on important points and since her testimony corroborated the respondent’s version of events on others.

39Additionally, the applicant affirmed that she did not ask or seek any accommodation for her pregnancy. In her view, the April 16, 2008 note from the applicant’s midwife which stated she was not to travel for extended periods was relevant since it established she required accommodation. However, there is no evidence the applicant was required to travel in bad weather after the note was presented or that she was denied such a request at any other time. With respect to the issue of her attendance at the Aliston conference, as I have found the applicant’s employment was terminated prior to the conference, for reasons that I find to be non-discriminatory, there is no basis to find a failure to accommodate in relation to this conference.

40Based on the above, in the context of this matter, I am not satisfied that the applicant’s submission that her deteriorating relationship with the respondents, illustrated by tardy or no-reply responses to her various queries during her employment was even partially related to her pregnancy status.

41After considering all the evidence and the parties’ submissions, although I have considered the timing of the applicant’s termination in relation to her pregnancy, I find that the applicant’s pregnancy was not a factor in her treatment by the respondents. As such, I do not find that the applicant was subjected to discrimination contrary to the Code. Her Application is dismissed.