Wolfe v. Kitchener (City), 2010 HRTO 1711

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

April Wolfe

Applicant

-and-

The Corporation of the City of Kitchener,

Doug Hergott and Karen Gingrich

Respondents

DECISION

Adjudicator: Dale Hewat

Date: August 18, 2010

Citation: 2010 HRTO 1711

Indexed as: Wolfe v. Kitchener (City)

AppearanceS BY

April Wolfe, Applicant ) Paul Mennie, ) Counsel

The Corporation of the City of Kitchener, ) Paula M. Rusak, Doug Hergott and Karen Gincrich, ) Counsel Respondents )

1This is an Application filed February 26, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on February 17, 2005 and abandoned upon filing this Application with the Tribunal. In the original complaint the applicant alleged that the respondents discriminated against her in employment on the basis of sex. The applicant alleges that she was denied a supervisory position in December 2004 because she is female.

2The respondents deny the allegations of discrimination and claim that the posting of the vacancy for the supervisory position in question, the hiring process and the filling of the position did not result in any adverse or differential treatment of the applicant on the basis of sex. Following the applicant’s presentation of her case, counsel for the respondent requested that the Tribunal dismiss the Application on the basis that the applicant failed to establish a prima facie case of discrimination.

DECISION

3The Application is dismissed. The following are my reasons.

Background

4The Corporation of the City of Kitchener (the “City”) is a large public sector employer with 2000 employees. Each year the City’s Human Resources Department (the “department”) is responsible for posting and managing approximately 100 job vacancies that are announced through office postings and on an internal website that can be accessed externally from any location. The process for posting a job vacancy involves a number of steps beginning with the department seeking to fill a vacancy formally requesting a new hire. Once the department’s request is received, the Chief Administrative Officer, or her designate, determines whether or not there is a need to replace the position. If approval for the posting is granted, the department is provided with a projected hiring date and the department commences the recruitment process by finalizing the requirements for the job and posting the vacancy.

5For most of her employment with the City the applicant worked as a security officer. As a result of a work related injury the applicant could no longer work as a security officer and was placed in September 2004, on a temporary basis, as a data entry clerk for a trial period ending on January 27, 2005. The applicant was laid off at the conclusion of the trial period because the City claimed that she could not satisfy the job requirements of the data entry clerk position. After her lay-off the applicant filed a human rights complaint claiming discrimination on the basis of sex because she was not considered for a job posting for the position of Supervisor of Facilities Management in December 2004.

6In this Application the applicant is not claiming that the City violated the Code with respect to her lay-off from the data entry clerk position. Instead, the applicant alleges that the City discriminated against her on the basis of sex by deliberately posting the vacancy for the Supervisory position while she was on vacation, by not considering her late application and by filling the vacancy with a male incumbent having less experience than her.

7The applicant worked in the Facilities Management Department and knew about the vacancy for the Supervisor’s position in July 2004 because the Supervisor at that time left the position. The applicant testified that she knew that the Supervisor position needed to be filled and that it would be posted but didn’t think the posting would occur in such a short time-frame. She also stated that she had spoken with co-workers about the vacancy and agreed that she would have applied for the position in advance of the posting if that was permitted. In her testimony, the applicant claimed that she had performed the Supervisor’s position in the past; however, when questioned by counsel it became evident that the applicant had not performed all of the duties required in the position.

8The position of Supervisor Facilities Management was posted on November 30, 2004 for a period of seven days requiring applications to be submitted by December 8, 2004 as per the City job vacancy policy. Due to budgetary planning, the projected hiring date for the position was scheduled for January 4, 2005. Interviews were conducted the week of December 22, 2004, and the decision to award the job to the then acting supervisor, who held more seniority than the applicant, was made on January 7, 2005.

9There was no dispute about the procedure for job postings or that the posting was issued by the Human Resources Department in accordance with its job vacancy policy. It was also agreed that late applications for job postings are not considered by the City unless the pool of timely applicants is exhausted without finding a suitable candidate. Given, the number of job postings each year, the Human Resources Department would also not be cognizant of which employees are absent from work when jobs are posted.

10Between November 26 and December 10, 2004 the applicant was on vacation. The applicant had been advised by her supervisor that she had accumulated vacation time that either needed to be taken by May 2005 or paid out. The applicant had won a trip to Mexico and decided to take vacation at the end of November 2004 to claim her prize. Despite knowing about the Supervisor’s vacancy, the applicant did not inquire about when the vacancy would be posted before leaving for her vacation.

11The applicant returned to work on December 13, 2004 but did not become aware of the job posting for Supervisor Facilities Management until December 23, 2004. The applicant claimed that she found out about the posting from co-workers who were surprised that she had not applied for the position. Recognizing that she had missed the time-period of applying for the job posting, the applicant contacted Human Resources on December 24, 2004 asking if she could submit an application. The applicant was told by an administrative assistant that there was no reason why the applicant should not apply for the position.

12On December 29, 2004 the applicant sent an email to Karen Gingrich, Staffing Coordinator, asking is she could submit an application and be considered for the position. Karen Gingrich was on holidays on December 29, 2004 so the applicant received an email response from Ms. Gingrich’s assistant who advised the applicant that although interviews had been conducted, she was welcome to submit an application which would be passed onto Ms. Gingrich and Human Resources after the holidays. The assistant also told her that the application may not be considered because it was late.

13The applicant’s job application was received by Human Resources on January 4, 2005. The applicant maintains that she sent her application package through internal mail on December 30, 2004. The applicant never contacted Human Resources to follow-up on her application and became aware that the position had been filled on effective January 7, 2005 when a notice was delivered on January 10, 2005 to all staff.

14The applicant continued in the temporary data entry clerk position until her lay-off. At no time prior to the filing of her human rights complaint did the applicant raise any concern about the posting or that the position was filled by a male candidate. The applicant claimed that another co-worker, Janice Green, had told her that the department was a “boys club” and that the City would never hire a female supervisor. However, on cross-examination the applicant acknowledged that she did not consider Ms. Green to be a reliable person, based on inconsistencies in Ms. Green’s responses to questions asked during the human rights investigation of this matter. In addition, the applicant agreed that, at the time of her original complaint, there were other City female employees who held supervisory positions including the Chief Administrative Officer. The applicant also confirmed that one of a number of female security officers had been promoted to a supervisory position within another department.

Does the Application Disclose a Prima Facie Case?

15The Tribunal’s approach to considering a request to dismiss an Application because it does not disclose a prima facie was reviewed in Jagit v. IN TECH Risk Management, 2009 HRTO 770:

18The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

19It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. [emphasis added]

16The Tribunal has also stated that it may consider the question of no prima facie case at a preliminary stage without hearing the evidence of the applicant using the same threshold test of whether the applicant’s allegations, if accepted to be true, would be enough to establish a violation of the Code. See: Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 7.

17In Chau v. Olymel S.E.C/L.P, 2009 HRTO 1386 at para. 29, the Tribunal also comments that a respondent should not be required to respond to a case where it does not know the case to be met or to require a respondent to defend allegations that do not raise discriminatory conduct:

Yet, where an applicant clearly fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the Application and to require the respondent to bear the onus of making out a reasonable defence.

Conclusion

18On the basis of the applicant’s allegations set out in her original complaint and her evidence at the hearing I find that the applicant has failed to establish that the facts, if believed to be true, would constitute a finding of discrimination in absence of an answer from the respondents.

19First, I cannot conclude that the timing of the posting in late November, 2004 was deliberately done while the applicant was on vacation. The applicant’s supervisor had reminded her that she needed to use her vacation accumulation by May 2005 but there is no evidence to establish that she was requested or forced to take vacation between November 26 and December 10, 2004. Even if I were to assume that the timing of the supervisor’s reminder caused the applicant to schedule the vacation for that week there was no evidence provided by the applicant that the vacation reminder was suggested because she is female and therefore should not have the opportunity to apply for the job posting. What was clear from the evidence is that the job posting process was lengthy, in accordance with the City’s hiring policies, and that a hiring date of January 4, 2005 had been set.

20In addition, the applicant worked in the Facilities Management department knew about the job vacancy for the Supervisor’s position since July 2004, but never made any inquiries about when the vacancy would be posted or advised Human Resources about her interest in the position. Like any other employee who is absent from the workplace, the applicant was not prevented from checking the City’s internal job posting site while she was on her vacation. It was also evident that the department would not have known the timing of the applicant’s holiday and therefore no connection can be made to the department’s decision of when to post the vacancy.

21I also cannot conclude that the applicant’s evidence shows that she was treated differently or adversely because of her gender. The applicant’s job posting application was late and, although she requested that it be considered, she knew that it might not be reviewed because it was submitted after the deadline. The applicant claims that she became aware of the job posting on December 23, 2004 but did not send in her application until December 30, 2004. The applicant was also advised by Karen Gingrich’s assistant on December 29, 2004 that her application may not be considered. Although the applicant had not submitted a job application past the posting deadline before, there was no dispute about the City’s policy with respect to late applications in which those applicants will only be considered once the pool of timely applicants is exhausted.

22The alleged comment by Janice Green that the Facilities Management Department is a “boys’ club” and that a woman would never be hired as a supervisor is also not sufficient to find a nexus to discriminatory treatment on the basis of sex. Even the applicant stated that she did not think Janice Green was a reliable person thus questioning the validity of the statement. Furthermore, the applicant agreed that at the time of her human rights complaint, there were females in supervisory and executive positions within the organization. Accordingly, it is not reasonable to conclude that the Facilities Management department would be any different than the rest of the City’s departments that are inclusionary toward women in managerial roles.

23Finally, the applicant’s testimony did not establish that she had, as alleged, fully performed the duties of the Supervisor, Facilities Management. The successful job applicant had more seniority than the applicant and was the acting Supervisor who had been in that role since the previous Supervisor’s departure in July, 2004. There was nothing in the applicant’s evidence to show that she was not considered because she is female and instead it was established that the successful job applicant had experience in the position and had more years of service with the City.

ORDER

24The respondents’ request to dismiss this Application for failing to establish a prima facie case is granted. Accordingly, the Application is dismissed.