Arias v. Centre for Spanish Speaking Peoples, 2010 HRTO 1818

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Arias

Applicant

-and-

Centre for Spanish Speaking Peoples

Respondent

DECISION

Adjudicator: Alison Renton

Date: September 3, 2010

Citation: 2010 HRTO 1818

Indexed as: Arias v. Centre for Spanish Speaking Peoples

APPEARANCES

Margarita Arias, Applicant ) On her own behalf

Centre for Spanish Speaking ) Claudio Ruiz-Pilarte,

Peoples, Respondent ) Representative

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on July 29, 2008, alleging discrimination in employment on the basis of age and reprisal. Initially, the Application named the Centre for Spanish Speaking Peoples (the “Centre” or “respondent”) and Ontario Public Service Employees Union, Local 512 (“OPSEU”) as respondents, but further to an Interim Decision, 2009 HRTO 1025 (“the Interim Decision”), the Tribunal dismissed the Application in its entirety against OPSEU and dismissed the Application on the basis of reprisal against the Centre. In the Interim Decision, the applicant was directed to file a Statement of Material Facts (“the Statement”) particularizing her allegations on the basis of age against the Centre, which she submitted to the Centre and the Tribunal.

2The respondent is a non-profit organization which offers various services and programs to the Spanish-speaking community, including an HIV/AIDS prevention program, a legal clinic, a woman’s program and a youth program. It is located in Toronto.

3The applicant was, at the time of the hearing, in her mid-50’s. She commenced employment with the respondent in January 2007 as an administrative assistant, initially as a probationary employee, and then as a full-time employee. She was a unionized employee and a member of OPSEU. The administrative assistant position was the lowest classified position in the bargaining unit.

4The applicant alleged that the respondent, and specifically Elisa Martinez and Silvana Venegas during the times the applicant reported to them, discriminated against her on the basis of age. She alleged Ms. Martinez and Ms. Venegas were of the opinion that the applicant was “too old” and “too slow” and told others these opinions in an effort to have her replaced with an employee in their same age group. Up to the time of the hearing, the applicant was still an employee of the respondent, although she has been off work for medical reasons since January 2008.

5A hearing on the claim of discrimination on the basis of age in employment was held on February 8, 9 and 10, 2010. The applicant testified and called Lucy Mariera and Mary Cook as witnesses. The respondent called Elisa Martinez, Christian Castillo, Sonia Gaete, Walter Grajeda, Gerardo Betancourt, and Silvana Venegas as witnesses. The parties agreed that Ms. Mariera, Ms. Cook, Ms. Martinez and Mr. Castillo could testify before the applicant.

6With the agreement of the parties, I took the lead in asking the applicant questions based upon the Statement that she submitted to the Tribunal and the respondent. After I finished asking her questions, the applicant had an opportunity to provide further testimony and to review her Application and her Statement, which she did. She was subsequently cross-examined by the respondent’s representative.

7Part way through the testimony of the respondent’s witnesses, the applicant expressed concerns that the respondent’s witnesses had not been subpoenaed. She requested that the Tribunal not admit their evidence. I allowed their evidence because the Tribunal’s Rules do not expressly require witnesses to be subpoenaed. Subsequent to the applicant raising this as a concern, each of the remaining respondent witnesses testified that they did not feel coerced, obliged or forced to testify for the respondent.

DECISION

8For the reasons set out below, I find that the applicant has not proven her allegations of discrimination on the basis of age in employment and her Application is dismissed.

9Subsequent to the hearing, the applicant filed a Request for Order During Proceedings dated June 18, 2010 which attached an updated medical document. Because of my conclusions, I will not consider this additional documentation.

Analysis and Conclusions

10The Code provides as follows:

5(1) 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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

11It is clear from the Tribunal’s jurisprudence that in order for the applicant to be successful, there must be sufficient evidence to allow the Tribunal to find that it is more likely than not that discrimination occurred, whether it be direct discrimination or discrimination to be inferred from the facts put before the Tribunal. See Junejo v. Peel (Regional Municipality), 2009 HRTO 1912 and Covell v. Robert Half International, 2010 HRTO 347. The applicant bears the onus of proving discrimination on a balance of probabilities. See Iqbal v. Inscape Corporation, 2009 HRTO 1189.

12In determining the credibility of the witnesses I have relied on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at 356-357 (B.C.C.A.):

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard as well as other factors, combine to produce what is credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (….) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [emphasis added]

13An assessment of credibility is not an exercise whereby the adjudicator simply listens to the oral testimony of the witnesses, observes their demeanour while testifying, and decides who appears to be telling the truth. Assessing credibility involves the consideration of a variety of factors. In addition to the factors and approach highlighted in Faryna, supra, corroborative evidence from other witnesses, the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties, and the internal logic of the evidence will be relevant considerations in assessing credibility. See Shah v. George Brown College, 2009 HRTO 920 at paras. 11-14.

14The applicant alleged discrimination in different situations requiring an analysis of the facts as they relate to each allegation, measured against the applicable legal standards. I will deal with each allegation separately and provide my conclusions and the reasons for reaching each conclusion.

Requesting Applicant’s Date of Birth Before Offering Position

15In her Statement, the applicant alleged “my boss Elisa Martinez, Programs and Services Director, after I signed the contract asked me to fill out a form whereby my Date of Birth was requested”. Ms. Martinez testified before the applicant. The applicant reported to her. She testified that the procedure for new employees is to provide the respondent with their date of birth and other personal information after receiving a job offer because it goes into their personnel file. She testified that this information could be asked for after a verbal job offer had been made, but before signing the employment contract. The respondent submitted as an exhibit an unsigned letter of employment contract between it and the applicant dated December 22, 2006 for employment commencing January 3, 2007. Ms. Martinez testified that she did not share the applicant’s age with anyone else.

16Despite the allegation in the Statement, in her testimony, the applicant stated that she was asked for her date of birth before she was offered her position or signed her employment contract. She did not provide any documentation to establish that her date of birth was obtained before she was verbally offered a position and did not explain why she alleged, in her Statement, that this information was requested after she signed her employment contract. The respondent submitted a document showing the ages of its employees, which was entered as an exhibit, and in cross-examination the applicant admitted that there were employees older than her.

17The applicant was neither the respondent’s oldest or youngest employee. Information about an individual’s age, asked during an employment interview, is a violation of the Code. See Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.). However, information about an individual’s date of birth asked after a job offer has been extended is not a violation of the Code. I am concerned about the contradiction between the applicant’s allegations on this issue in her Statement and her oral testimony and I find that the applicant has not met the burden of proof required to establish discrimination on this issue. I find that the more plausible explanation is that she was asked for her date of birth after a job offer was orally extended to her.

Training is for Younger People

18The applicant alleged in her Statement that she was denied training opportunities by Ms. Martinez because of her age. Specifically, she alleged that Ms. Martinez said “training is only for young staff” in front of the respondent’s lunchroom and to Gerardo Betancourt.

19Ms. Martinez testified that one day, near the lunchroom, she described to Mr. Betancourt her experience in attending a six-month internship program in Cuba, which was offered by a Canadian development agency to persons who had just completed a degree and who were under 30 years of age. The internship was before she worked for the respondent. Ms. Martinez made eye contact with the applicant while discussing this with Mr. Betancourt. As mentioned above, Ms. Martinez testified before the applicant.

20The applicant testified that she was interested in receiving training to progress within the respondent. She testified that one day as she was approaching the lunchroom, she heard Ms. Martinez, who saw her coming and who was speaking with Gerardo Betancourt, say, “training is for younger staff”. The applicant testified that this was the first time in her life that she had heard any comments directed to her about age. Upon hearing Ms. Martinez’s comment, she went to the office of Eduardo Garay, the respondent’s then Executive Director, and said that she was being discriminated against on the basis of age. Mr. Garay told her that the program that Ms. Martinez had attended was not specific to her. Mr. Garay, the applicant alleged, protected Ms. Martinez. Mr. Garay was not called as a witness by either party.

21Mr. Betancourt testified that he recalled discussing the Cuba internship program with Ms. Martinez, although he could not recall the details because it was a long time ago. He did not recall Ms. Martinez telling him that training was for younger staff. He was not asked, in cross-examination, questions specifically pertaining to the “training is for younger staff” comment.

22In response to a question from the Tribunal about whether Ms. Martinez’s comment was taken out of context, given the evidence that the parties and the Tribunal heard about the internship program being available to people under 30 years of age who recently completed university and which was not provided by the respondent, the applicant stated, “I don’t care about any of that and I was shocked that I wouldn’t get any training”. She was adamant in her opinion that Ms. Martinez did not want to train or promote her and that Ms. Martinez, along with Ms. Venegas and another employee, wanted to replace her with someone in their age group.

23I accept that Ms. Martinez was describing to Mr. Betancourt her internship experience which took place before she commenced employment with the respondent and which had requirements that were set by an organization other than the respondent. The applicant was not a party to the conversation and I find that no comment was directed at her. The incident described does not constitute discrimination on the basis of age.

Administrative Assistant Position Posted

24In the Statement, the applicant asserted that on December 17, 2007, she found out on the respondent’s website that two positions, her positions, were open to volunteering opportunities. She complained to Ms. Venegas, who ignored her.

25In support of her position that Ms. Martinez and Ms. Venegas were trying to replace her with a younger person, the applicant testified that her position as administrative assistant was posted in December 2007 so that others could apply for it. She tendered a document, which was admitted as an exhibit, called “Volunteer Program” which showed that the respondent was seeking volunteers for the administrative assistant position, as well as other positions. The applicant did not ask Ms. Martinez any questions about the administrative position being posted while Ms. Martinez testified. In her final submissions, the applicant submitted her position was the lowest one on the collective agreement, and the testimony of the other witnesses on this point was “biased against [her]” and “wrong”.

26Walter Grajeda is a long-term employee of the respondent and was called as a witness by the respondent to testify. He is also a union steward and has been one of the union representatives on the collective bargaining committee. He testified in examination-in-chief that volunteers have been used by the respondent for many years, but are supervised by a staff member and coordinated by the volunteer coordinator. The union would file a policy grievance if the respondent attempted to replace a bargaining unit employee with a volunteer, but this has never been done. The applicant’s position was the lowest position in the collective agreement, and employees receive seniority based upon service, not age.

27Silvana Venegas is a long-term employee and she testified for the respondent. She has been a union steward, one of the union representatives on the collective bargaining committee, and was the acting interim executive director between the end of 2007 and beginning of 2008 during which time the applicant reported to her. She testified that she is younger than the applicant and that Ms. Martinez is at least six years younger than her. She testified that the respondent could not replace a bargaining unit employee under a funded program with a volunteer, and that if this occurred the union would file a policy grievance. This could not be hidden because it was a small workplace. While she was acting interim executive director, the respondent was going to be evaluated by one of its funders. To ensure that this went smoothly, she asked the volunteer coordinator to get some volunteers to assist the applicant in organizing files and moving some to storage. The applicant was specifically told that the volunteers would be used to assist her and that she would not be replaced.

28I do not accept the applicant’s allegations that the respondent was trying to replace her with a volunteer and thus discriminated against her. The “Volunteer Program” document that was entered as an exhibit makes it clear that the opportunities that were available were volunteer opportunities and volunteers have been used for many years by the respondent. In addition to a volunteer for an administrative assistant position, there were other opportunities for other positions including a receptionist assistant. The administrative assistant and receptionist positions are both unionized. I accept the evidence of Mr. Grajeda and Ms. Venegas that if a volunteer took a position that had been occupied by a bargaining unit employee, the union would file a policy grievance. In support of their evidence, I note that the collective agreement, which was also entered as an exhibit, specifically states at article 16.01(c), “Full time vacancies shall not be backfilled with volunteers, student or contract workers”. This point was not challenged in cross-examination. I further accept Ms. Venegas’ evidence that she told the applicant that she was not being replaced by a volunteer.

The applicant dyeing her hair

29When the applicant came to Canada, she dyed her hair after being told by a government agency (that she did not identify) “if you want to find a job you should dye your hair”. While she worked at the respondent, she decided not to dye her hair and to “grow it out” so that her hair contained gray hair that was growing in along with the coloured hair. The applicant alleges that Sonia Gaete, at the time she was the President of the respondent’s Board, asked if she was going to dye her hair, but the applicant did not respond to her. This, the applicant alleges, was a discriminatory comment.

30Ms. Gaete testified that she was a member of the respondent’s board of directors from 2005, and in 2006 she became the board’s president until September 2007. She did not recall asking the applicant if she was going to dye her hair and testified that she makes no secret of the fact that she dyes her hair.

31Although a single incident has been found sufficient to meet the definition of harassment in some circumstances (see Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9), in this situation, I do not find that Ms. Gaete made a discriminatory comment to the applicant. While Ms. Gaete did not recall making this comment, I accept the applicant’s evidence that Ms. Gaete made this comment to her. However, the applicant testified that she had previously dyed her hair and let her hair grow out. Given the difference in the applicant’s hair, I do not find that Ms. Gaete’s comment to the applicant asking if she was going to dye her hair, in this context, discriminatory.

Applicant alleged to be “too” slow and thus old to perform her job

32The applicant alleged that Ms. Martinez and Ms. Venegas discriminated against her on the basis of age when they conveyed to the board of directors and others that the applicant was too slow and too old in an effort to replace her with someone “their own age”. Her specific allegations are addressed separately below.

a) Extra Overtime Hours Being Reported to the Board of Directors

33In her Statement, the applicant alleged that in July 2007 “[Ms. Martinez] delivered to the Board members the Staff Time Report Monthly Summaries and I found that Elisa had been giving a greater number of my overtime hours to the Board”. During her cross-examination, Ms. Martinez, who testified before the applicant testified, denied that she inflated the applicant’s overtime hours. She described that she took information from an employee’s time sheet, put it into Excel, and would present it from time to time to the respondent’s board.

34Subsequent to Ms. Martinez’s testimony, and before the applicant completed her examination-in-chief, the respondent produced a “time sheet report 2007” and a “CCSP bargaining staff time records 2007, updated August 16, 2007”. Both documents were admitted as exhibits, without objection from either party. Ms. Martinez was not recalled as a witness.

35In her examination-in-chief, the applicant testified that in April 2007 she received a memo from Ms. Martinez summarizing her vacation, sick leave, overtime and floating day accruals as of March 31, 2007. As of that date, she had 26 hours of overtime. That memo was entered as an exhibit. The applicant also entered as an exhibit a time sheet for September 2007 which showed her accrued overtime as being 12 hours and testified that was the last amount of overtime she recalled seeing. She testified that while she was looking into the binders that were given to the board at the August 2007 board meeting, she found a July 2007 time report that Ms. Martinez provided to the board that showed the applicant had 35 hours of overtime. She testified at a later point that the number of reported overtime hours was 37. The applicant asserted that Ms. Martinez inflated her overtime hours to suggest to the respondent’s board that the applicant was slow and old and the number of overtime hours would catch the board’s attention.

36In cross-examination, the applicant admitted that she had not been disciplined or warned or suspended about incurring too much overtime. Most of the overtime she worked was up to March 2007 while she in was still a probationary period and working as a part-time employee. She was hired as a full-time employee after March 2007.

37Mr. Grajeda testified that if an employee disputed the hours reported as overtime, the employee could request a meting with management in the presence of a union steward to address the issue. There was no evidence that the applicant did this.

38The time records that were submitted as exhibits do not establish that the applicant’s overtime hours were inflated in July 2007 or at any other time. A document entitled “CCSP Bargaining Staff Time Records 2007 updated August 16, 2007” lists a number of employees and shows the overtime hours each employee worked and took in 2007 along with any balance. The overtime hours that the applicant incurred in 2007 are higher than some employees and lower than other employees. The applicant did not challenge or point to any specific overtime hours that should not have been recorded. As such, she has not proven that her overtime hours were inflated by Ms. Martinez in July 2007.

b) The filing cabinet

39The applicant alleged that in November 2007, Ms. Martinez told Mary Cook, the respondent’s interim executive director, that the applicant was slow in finishing the reorganization of the filing system.

40Ms. Cook, who was called as a witness by the applicant, testified before the applicant and Ms. Martinez did. She testified that she was the respondent’s interim executive director between October and November 2007. The organization of the filing system was something that had been long outstanding and there were difficulties in getting it done. She did not, during her examination-in-chief, recall the applicant raising any allegations of discrimination on the basis of age to her. Subsequent to her examination-in-chief, and in response to a question from the Tribunal that the applicant alleged in her Statement that Ms. Martinez complained to Ms. Cook that the applicant was slow in finishing the reorganization of the filing system, Ms. Cook responded, “I don’t recall the use of the word ‘slow’” and “I don’t remember the reasons [for not finishing the reorganization of the filing system] other than disappointment”. She testified that she sat down with the applicant and arranged a schedule to work on the filing system. She denied that Ms. Martinez commented about the applicant’s age but noted in cross-examination that Ms. Martinez had frustrations with the applicant’s performance and not prioritizing tasks.

41Ms. Martinez testified that she did not recall telling Ms. Cook that the applicant was slow with organizing the filing system. She recalled telling Ms. Cook that they had been working on the filing system project for a long time, it was still not completed for various reasons and that it was not finished when Ms. Martinez stopped working for the respondent.

42The applicant testified that Ms. Martinez had told others, including Ms. Cook, that she was slow in finishing the reorganization of the filing system. She stated that when she summoned Ms. Cook to testify, Ms. Cook agreed that Ms. Martinez called the applicant slow, although those questions were not put to Ms. Cook in her evidence. The applicant testified that she heard Ms. Cook testify at the hearing that Ms. Martinez said the applicant was slow.

43The applicant has not substantiated her allegation that Ms. Martinez told Ms. Cook that the applicant was slow. Despite the applicant’s assertions, Ms. Cook did not testify that Ms. Martinez said the applicant was slow. Instead, as set out above, Ms. Cook specifically said that she did not recall Ms. Martinez saying the applicant was slow. Ms. Cook, who no longer works for the respondent, was called to testify by the applicant. Ms. Martinez testified that she did not tell Ms. Cook that the applicant was slow. I prefer the evidence of Ms. Cook and Ms. Martinez over the evidence of the applicant on this issue and find that Ms. Martinez did not tell Ms. Cook that the applicant was slow.

c) Last-minute photocopying

44The applicant’s Statement alleges that before the July 2007 board meeting, Ms. Martinez ordered the applicant to make photocopies of material and place it in the board members’ binders. Usually this copying is provided several days in advance, but on this occasion it was provided at the last minute so the applicant did not have the appropriate amount of time to do the copying. The Statement alleges that Ms. Gaete shouted to the applicant, “Why are the binders not ready?”, to which Ms. Martinez laughed and went to her office. Mr. Garay helped the applicant finish the job.

45Ms. Martinez did not testify in chief about these allegations. In cross-examination, it was suggested that Ms. Martinez did not give the documents to the applicant to be copied to show the board members that the applicant was late in delivering the material and did not finish the job. Ms. Martinez denied this. She recalled a time when there was a large amount of last-minute photocopying being conducted for the orientation of a new board, but did not recall assigning this task specifically to the applicant. Ms. Martinez recalled that a number of people, including Ms. Gaeta, hurriedly worked in the lunchroom towards its completion. She did not recall Ms. Gaeta yelling at the applicant.

46The applicant briefly touched on this allegation and only in her cross-examination. She stated that Ms. Gaete came into the lunchroom around 6:00 pm and shouted “why aren’t the binders ready?” The board meeting had been anticipated for several weeks. The applicant stated that she was not warned or disciplined for not having the board materials ready on time.

47Ms. Gaeta did not testify about this allegation in her examination-in-chief. In cross-examination, she confirmed that materials for the board of directors are supposed to be ready before a board meeting, but did not know if it was the responsibility of the applicant or Ms. Martinez to have it prepared. She was asked questions about the board meeting held in August 2007 and she did not recall coming to speak to the applicant in the lunchroom and asking why the board’s binders were not ready.

48Even if the board materials were not ready in time, there is insufficient evidence to support finding the applicant was specifically assigned this task or even that it was assigned late because of her age. On this issue, I find the applicant has not proven this allegation.

d) Waiting upon and serving others

49In the Statement, the applicant alleges that she was required to wait upon and serve others. Specifically, she alleged that in 2007, Ms. Martinez opened the refrigerator in the lunchroom and claimed that the applicant had not bought her cheese, implying to others that the applicant had been “her personal maid and cook”. She alleges in August 2007 at a picnic at High Park, Ms. Martinez and another employee laughed in front of the community members that, upon request by Ms. Martinez, the applicant had cooked and served beverages for the board and the community.

50These allegations were not put to Ms. Martinez during her examination-in-chief or her cross-examination.

51The Applicant testified that because of her age, she was required on several occasions to “wait” on others, which she felt was demeaning. For one meeting she had to take requests for beverages and deliver the beverages. She had to buy and make food and serve it during board meetings. She disagreed, in cross-examination, with the suggestion that this was part of her job duties as an administrative assistant and noted that her job description identified a responsibility as “ordering food/beverages”. She insisted that she was asked to perform these tasks because she had gray hair and because of her age and submitted that Ms. Martinez and Ms. Venegas wanted to have her as a personal assistant rather than as an administrative assistant. When asked, in cross-examination, why they would want to have her as an assistant if, as she alleged, she was too slow and too old, the applicant responded that they liked having an assistant with gray hair working for them.

52Ms. Gaete testified that on occasion she bought and prepared food for board meetings. She went to the grocery store, sometimes with another person such as the applicant or Ms. Martinez, and brought bread and cold cuts and other food. Sometimes she and others, including the applicant, opened containers of food, and sometimes they would order pizza. She recalled that the applicant helped her do this, but recalled that others did too, including Ms. Martinez and Mr. Garay.

53I find that the applicant has not met the burden of proving that waiting upon and serving others was discriminatory towards her on the basis of age. The job description for the administrative assistant, which was introduced as an exhibit, sets out general responsibilities of the position including, “assists with meeting activities by preparing meeting materials and handouts, ordering food/beverages…” I find that the purchasing and preparation of food, and providing beverages for or at meetings were extended functions of the applicant’s position.

54The applicant alleges that Ms. Venegas and Ms. Martinez were trying to have her replaced and were conveying to others that she was too old and too slow, yet she also insists that they wanted to have her as their assistant to convey to others that an “older, gray-haired” woman worked for them. I find that these assertions are inconsistent and cannot be reconciled.

Office Manager/Legal Assistant Position

55The Statement alleges that in November 2007, she requested from Ms. Venegas “the opportunity to have the open position of Office Manager and Legal Assistant, which was her position, but she made excuses that I do not have training”.

56The applicant testified that Ms. Venegas told her that her former position of officer manager/legal assistant had become available. Because of the applicant’s legal training and her work experience as an office manager, the applicant was very excited about this position and was interested in applying. Ms. Venegas told her that she did not have the background for the position, but, after discussion, asked her to bring in her résumé. The applicant prepared her résumé that night and brought it to Ms. Venegas the next day. The résumé, which was introduced as an exhibit, states as its objective “To work as Legal Assistant and Office Manager”. Ms. Venegas said that she would forward it to the board, but the applicant did not hear anything further about it.

57The applicant claims that by not receiving this position, this is a further example of discrimination on the basis of age because Ms. Venegas, Ms. Martinez and another employee wanted to protect their age group and to convey to others that they, as younger women, had an older assistant with gray hair working for them. In cross-examination, the applicant stated that she did not know the respondent’s practices or protocols for hiring employees.

58Ms. Venegas was appointed the interim executive director for a three-month period commencing November 2007. Her former position was office manager, a bargaining unit position, to which she returned after her temporary appointment. The office manager performed legal assistant duties. While she was the interim executive director, the board of directors decided that the office manager position would not be filled because of the short duration of her appointment and because she would return to this position upon the completion of her appointment. A memorandum of understanding was reached with the union confirming that the position would not be posted, although it was not entered as an exhibit. While working as the interim executive director, Ms. Venegas continued to perform some of the functions of the office manager position.

59In cross-examination, Ms. Venegas did not recall asking the applicant if she was interested in the position or the applicant giving her the résumé. She did not know why the applicant prepared the résumé. She testified that there was no need for the résumé because the position was not going to be posted or filled and confirmed the board’s agreement with the union that the position not be posted. She disagreed in cross-examination that she told the applicant she would speak with Consuelo Rubio, another employee in the legal clinic, about the applicant receiving the position because she and Ms. Rubio did not have management rights, and it was the board’s decision as to whether or not to fill the position, and, as it was a bargaining unit position it would need to be posted according to the terms of the collective agreement. Ms. Rubio was not called as a witness.

60Ms. Venegas did ask the applicant to draft a new position posting for a senior counsellor position because it was a position that was introduced during the duration of the collective agreement after the respondent received new funding from United Way for the position. By asking the applicant to prepare this new position, it did not mean, Ms. Venegas testified, that the applicant was too old for that position. The senior counsellor position was posted in accordance with the requirements of the collective agreement because it was a bargaining unit position.

61I find that the applicant has not proven her allegation that she was denied the position of office manager because of her age. The Statement indicates that the applicant requested the opportunity for the office manager position, yet the applicant testified that Ms. Venegas offered her the opportunity. The applicant produced a résumé for the position, which Ms. Venegas denied receiving. I do not need to resolve the conflict in the evidence about whether the applicant provided a résumé to Ms. Venegas, because I am satisfied that there was no open position of office manager to which the applicant could apply. I accept Ms. Venegas’ evidence that she continued to perform some of the functions of office manager during her interim assignment and that the board determined the office manager position would not be posted and it was not.

The December 2007 Christmas Party

62The Statement alleges that “a board member complained to me that she had been expecting me to pay the bill at the restaurant, and asked me why I forgot to bring the money such day”. The applicant alleges that Ms. Venegas “chose to hide the truth and convey to others that I was assigned to pay and I therefore forget things against because I was too old to do the job”. The applicant alleges that she told Ms. Venegas to go to the bank and cash a cheque to pay for the restaurant bill before attending the restaurant.

63The applicant testified that the board member called her the day after the party and asked why she left without paying the bill. The applicant, who had taken her young son, left after accepting a ride home from another employee and they were the first to leave. The applicant did not discuss this with Ms. Venegas because she was so angry. In response to the Tribunal’s question about how this incident related to her allegation of age discrimination, the applicant testified that it conveyed to others that she forgot something so critical and should be replaced. The board member was not called as a witness by either party.

64Ms. Venegas was not asked questions about this incident in either examination-in-chief or cross-examination, although she did identify, in cross-examination, that there were two Christmas parties, one with children and the other a dinner with staff for which the respondent paid. In response to questions asked by the Tribunal about the Christmas party at the restaurant, Ms. Venegas denied telling others that the applicant was slow and forgetful. The respondent paid for the dinner and she did not recall any confusion about paying the restaurant. In response to the applicant’s questions, Ms. Venegas said that the payment is usually done by credit card and then paid by cheque.

65I find that the applicant has not provided sufficient evidence to substantiate this allegation. Further, I draw an adverse inference against the applicant that she did not call the board member to testify after Ms. Venegas denied the allegation that she conveyed to others that the applicant was slow and forgetful in relation to this incident.

Applicant raising allegations with others

66In the Statement, the applicant alleged that she told Mr. Castillo that she was being discriminated against on the basis of age. She claimed that he “laughed and left”. The next day, in a meeting with a contractor that Ms. Venegas attended, he brought up the discrimination issue and “laughed with Silvana in front of the contractor”.

67The applicant also alleges in the Statement:

Aug-Oct. 2007: CSSP office, Patricia [President of the respondent’s board of directors] approached me several times at my desk asking me about any complaints that I had. I was reluctant and afraid to tell her about any complaints even though she asked me several times. I was afraid if I told her anything because of past treatment that I would lose my job. I did not want to lose my job it is very important to me and my son.

Between October 2007 and June 2008: Meeting with the President of the Board (Patricia) when I complained to Patricia about Elisa. Patricia left the office instantly when I started giving her the details about Elisa. I had written letters to Patricia about [volunteer coordinator’s] behaviour, but Patricia did not answer; on the contrary, she publicly promoted [volunteer coordinator].

I made phone calls about Silvana’s behaviour, but Patricia publicly promoted Silvana. Patricia chose not to resolve my complaints but instead used my information and communication to immediately and publicly promote Elisa, [volunteer coordinator] and Silvana knowing beforehand that the public at large knew about my complaints.

68Mr. Castillo testified before the applicant did. He was a member of the respondent’s board. In his examination-in-chief, he stated that the applicant approached him about a problem she was having with another employee (the volunteer coordinator) and wanted him to terminate the coordinator. She did not raise any allegations of age discrimination. He advised the applicant that there was a process to follow with the union to address the concerns she had with the coordinator. He did not hear that she was too slow because of her age.

69In cross-examination, he confirmed his recollection of the applicant wanting the coordinator fired despite the applicant saying she did not request this. He saw the issue between the applicant and the coordinator as being a labour relations issue and there was nothing he could do on his own to assist the applicant. He recalled suggesting that a mediation take place between the applicant and the coordinator. He did not recall the applicant attending the meeting with Ms. Venegas and the contractor, but did recall expressing concerns about the respondent’s elevator not being accessible to the public and discussions with the contractor about how to make the elevator accessible.

70In response to questions from the Tribunal, Mr. Castillo stated that once the applicant raised her concerns about the coordinator, he told her that she could file a complaint with the union, and that a mediation would be scheduled with the applicant and the coordinator to address those concerns. The mediation did not happen because the applicant left work on sick leave. The applicant would not put her concerns in writing.

71The applicant testified about an incident that she had with the coordinator that she raised with other members of management. Mr. Castillo arrived at the workplace and she told him her concerns about the coordinator and alleged it was age discrimination against her. He stood up, smiling, and told her there was no age discrimination. She did not recall him saying that it was a labour issue. She attended the meeting with the contractor and recalled Mr. Castillo saying that it would discrimination for the respondent not to have a wheelchair accessible elevator. She was left with the impression that what she told him the day before was not discriminatory but that the elevator situation was discriminatory.

72She testified that on December 13, 2007, she filed a complaint under the respondent’s workplace harassment policy, although not on its prepared complaint form, when Ms. Venegas was the interim executive director, in the form of an inter-office memo dated December 13. The memo, which was introduced as an exhibit, states:

In response to Alejandra’s memorandum related to me asking her to give me information in writing, my reason to ask her was:

As I told you on the date she was violent to me, I have been still feeling frighten[ed] about her presence when she approaches me and I am alone, so I do not want to spen[d] to[o] much time with her alone since the time of her violent behavior towards me, that is why I asked her in first place to send me her requests in writing, and I feel to continue doing so.

73When she did not receive a response to this memo, she wrote another one dated January 14, 2008, which stated:

On December 17, 2007 I sent you information about my position being at the Volunteer Program website as “open for volunteer opportunities” being this position the only one at the CSSP which has been placed as such.

Could you please investigate why and let me know?...

74She did not receive a response to the January 14, 2008 memo either. She alleged that a memo from Ms. Venegas to her dated January 31, 2008 was fabricated because she did not receive it while she was at work until after she filed her Application.

75The applicant did not testify about the allegations set out in para. 67 above. She mentioned, in her testimony, that she called the board’s President on June 30, 2008, but no details were provided about that call. Despite the excerpts from the Statements in para. 67 indicating that letter had been written to the board’s President raising various concerns, those letters were not entered as exhibits at the hearing. The board’s President did not testify.

76In cross examination, she admitted that she did not raise any allegations of age discrimination with her union or file a grievance. Although she knew her union steward and had raised a different issue with the union, she claimed not to know her rights as a union member, this was her first unionized job, and she had not supported a union position when she commenced employment and thought it was not supportive of her.

77Mr. Grajeda testified that in his capacity of union steward, he did not receive a formal or verbal complaint from the applicant about age discrimination. He confirmed that he was asked by management to be present at a meeting during which the issues about the applicant and the coordinator were going to be discussed. He testified that the applicant had attended union meetings and had received a copy of the collective agreement when she commenced employment.

78Ms. Venegas testified that she did not receive any complaints about age discrimination form the applicant. The applicant approached her with concerns about the volunteer coordinator which she described in her testimony and which are not relevant to the issues raised in this Application. Ms. Venegas had the applicant moved to a different office that had a door and was not shared. She did not recall receiving a memo from the applicant dated December 13, 2007 or January 14, 2008, which were entered as exhibits. She explained that her practice is to put the date and her initials on memos she receives, and that she did not date or initial either memo. She did not tell the applicant in mid-December 2007 that the coordinator was not returning to the respondent. Instead the coordinator went on vacation. She testified, in response to questions from the Tribunal, that she attended the meeting with Mr. Castillo and the contractor, but that the applicant did not attend.

79Ms. Venegas testified that she prepared a memo dated January 31, 2008 to the applicant and the coordinator advising them that the board of directors required them to attend a mediation in order to resolve the disputes between them. The memo was left for the applicant at work, although she did not receive it because she was not at work that day. The applicant has not been at work following January 31, 2008.

80I do not find that the applicant raised concerns about age discrimination with the respondent before filing her Application. I accept that the applicant raised concerns about the coordinator with Mr. Castillo and Ms. Venegas, but the concerns that were raised, as identified on the applicant’s memos, do not claim or infer that the difficulties were as a result of her age.

81With respect to the allegations set out in para. 67 above, I find that the applicant has not met the burden of proof required to substantiate these allegations. The allegations are extremely vague, provide no details about the concerns that the applicant raised with the board’s President and provide no details about how they establish a violation of the Code on the basis of age. Those allegations are dismissed.

Applicant Not Being in Receipt of Long Term Disability Benefits

82In the Statement, the applicant alleges that the respondent has not been helpful in her attempts to receive long term disability (“LTD”) benefits. Specifically, she alleges that Ms. Venegas has not given her any assistance on the LTD process, has advised the applicant that she will not qualify for LTD benefits and has blocked information between the respondent and the insurance company. Further, she alleges that Ms. Venegas has drafted discriminatory letters to her in which the applicant is advised that she will not receive a top up amount to which employees are entitled.

83The applicant testified that it was her impression that because of her age Ms. Venegas did not respond to her communications, did not provide documentation or assistance in relation to her LTD benefits application, and instructed others not to assist the applicant with her LTD benefits application. The applicant submitted a letter dated July 4, 2008 signed by Mr. Ruiz-Pilarte about the top up to sick benefits payments made by the respondent which was entered as an exhibit. The applicant testified that she “knew” the letter was drafted by Ms. Venegas because Mr. Ruiz-Pilarte could not have knowledge about such matters. Ms. Venegas, she claimed, did not want the applicant to receive LTD benefits, wanted to affect her finances and wanted her replaced with someone from Ms. Venegas’ own age group.

84Similarly, she asserted that a letter dated March 6, 2009 and signed by Mr. Ruiz-Pilarte, which was entered as an exhibit and which advises that the respondent will no longer continue covering her health benefits unless she makes a monthly payment for their continuation, was drafted by Ms. Venegas. In cross-examination, she testified that she “knew” that Ms. Venegas drafted the letters, despite them being signed by Mr. Ruiz-Pilarte, because there were technical points about insurance and referenced the collective agreement and that Ms. Venegas has selected him to become the respondent’s new executive director.

85Mr. Grajeda testified in cross-examination that after the applicant’s sick benefits were cut off, she spoke with him and asked him to contact management to send her the LTD forms, which he did. At the time of their conversation, he was one of three union stewards, as was Ms. Venegas. He explained that bargaining unit employees are not assigned a specific union steward and that any one of the union stewards could deal with a member’s concerns. In response to the applicant’s assertion that Ms. Venegas was more knowledgeable about insurance issues than he was, Mr. Grajeda noted that it was the applicant who contacted him specifically and he responded to her.

86Ms. Venegas did not testify in examination-in-chief about LTD benefits. In cross-examination, she stated that she knew how to apply for LTD benefits, but she could not and did not tell the applicant whether or not she was eligible for these benefits because this is a determination for the insurance company, not to respondent, to make. Ms. Venegas denied drafting the letters that were signed by Mr. Ruiz-Pilarte. Mr. Ruiz-Pilarte represented that he drafted them. Ms. Venegas knew Mr. Ruiz-Pilarte before he become the respondent’s executive director because he had been a member of the respondent’s board. She was not on the hiring committee that selected him for the executive director position. In response to questions from the Tribunal, Ms. Venegas testified that it was her understanding that there was a waiting period of 16-17 weeks before an employee became eligible to apply for LTD benefits. During the waiting period the employee would be in receipt of EI benefits. The insurance company, not the respondent, determines if an employee is eligible for LTD benefits. Ms. Venegas stated that the applicant had never approached her for help with or assistance to apply for benefits. The office manager, Ms. Venegas’ position, would not know if the applicant applied for LTD benefits, but the executive director’s position would know. Ms. Venegas did not draft the correspondence that was sent to the applicant under Mr. Ruiz-Pilarte’s name, did not tell him to draft the correspondence and had no involvement with their preparation.

87The applicant has not proven her allegations that the respondent or Ms. Venegas did not respond to her communications, did not provide documentation or assistance in relation to her LTD benefits application, and instructed others not to assist the applicant with her LTD benefits application because of her age. I accept the evidence of Mr. Grajeda, which was not contradicted, that the applicant contacted him and not Ms. Venegas about the LTD application form. I also accept the evidence of Ms. Venegas that she did not draft the correspondence that was signed by Mr. Ruiz-Pilarte and sent to the applicant.

88A number of letters were sent by the respondent to the applicant which were entered as exhibits, with information about benefit entitlements, including LTD benefits. Some of those letters reference the respondent’s obligation to pay only the premiums for those benefits, as stipulated in article 28.04 of the collective agreement, rather than the actual benefit payment itself. I accept the evidence of Ms. Venegas that the insurance company, not the respondent, determines entitlement for LTD benefits. I note from the exhibits entered that the applicant had communicated with the insurance company with respect to an LTD benefits application, which has been denied. While the communication from the respondent may have been clearer, the applicant has not established that the respondent, or Ms. Venegas, discriminated against her on the basis of age in their handling of the applicant’s benefit entitlements or her inquiries into those entitlements.

89Accordingly, the Application is dismissed.