Guerrero v. Apollo Health and Beauty Care, 2010 HRTO 1823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Guerrero

Applicant

-and-

Apollo Health & Beauty Care, Aziz Bhalloo and Sandy Dhillon

Respondents

AND BETWEEN :

Harold Guerrero

Applicant

-and-

Apollo Health & Beauty Care, Aziz Bhalloo and Sandy Dhillon

Respondents

DECISION

Adjudicator: Jim Dimovski

Date: September 7, 2010

Citation: 2010 HRTO 1823

Indexed as: Guerrero v. Apollo Health and Beauty Care

AppearanceS BY

Harold Guerrero, Applicant ) Cecil Norman and Marcia C ) Channer, Representatives )

Apollo Health & Beauty Care, Azziz Bhalloo ) Greg McGinnis, and Sandy Dhillon ) Counsel

1These Applications were filed under sections 53(3) and 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaints in this matter were filed with the Ontario Human Rights Commission (the “Commission”) on June 22, 2006 (TR-0262-09) and August 8, 2006 (T-0480-08), and abandoned upon filing the Applications with the Tribunal.

2On June 24, 2004, the applicant, who was born in Colombia and self-identifies as Colombian, began his employment, earning $13.00 per hour, with Apollo Health & Beauty Care (the “corporate respondent”), a developer of private label health and beauty care products. The applicant was hired as an Incoming Quality Control Inspector and was responsible for, among other things, inspecting incoming supplies and releasing them for use in production. He was terminated from his employment on July 12, 2006. In his Applications, the applicant alleges that he was subjected to differential treatment and harassment in the course of his employment, on the basis of his place of origin (TR-0262-09), ethnic origin and/or ancestry (T-0480-09).

3The applicant also alleges that his employment was terminated as reprisal for filing his human rights complaint (TR-0262-09). In particular, the applicant alleges that after the personal respondents failed to address his repeated complaints to them about his discrimination and harassment, he filed a complaint with the Commission. At some point shortly thereafter, he alleges, the personal respondents discovered from his co-workers that he had filed his complaint, which he confirmed to them, he was then subjected to an “unwarranted” reprimand and terminated.

4The respondents denied all of the applicant’s allegations.

5A hearing was held on November 12 and 13, 2009. At the hearing, I heard testimony from the applicant, the personal respondents, Aziz Bhalloo and Sandy Dhillon as well as Emily Junio. Mr. Oscar R. Rivero appeared as a Spanish language interpreter.

The Applicant’s Allegations

6The applicant alleges that he was subjected to harassment from management. In particular, he alleges Mr. Bhalloo, his Quality Assurance Manager, beyond being abrupt with him, harassed him by singling him out for “over supervision” and in doing so monitored him aggressively and with the assistance of a co-worker from Mr. Bhalloo’s “community”, AK, and with “electronic devices”. As an example, he noted Mr. Bhalloo’s conduct included an incident in late March 2006, when Mr. Bhalloo asked the applicant to work on a Saturday in order to assist with the relocation of the laboratory within the corporate respondent’s premises. After a long discussion, the applicant offered to assist on the Monday since to do so on Saturday was “unnecessary”. Mr. Bhalloo insisted on the applicant’s presence on Saturday. The applicant stated he complained to the corporate respondent’s human resource department about Mr. Bhalloo’s “irrational” request.

7In addition to being denied an annual performance evaluation during his first year of employment, which he alleges contributed in part to his differential treatment, the applicant alleges that there was a difference between his wage and those of other co-workers who had been hired at approximately the same time. For example, he notes he had the lowest wage for his department. Additionally, in January 2006, he was provided a wage increase of $ 0.50 per hour and told it would be retroactively applied; he states his wage increase was smaller than those of his co-workers and not retroactively applied. Also, he alleges Mr. Bhalloo refused to authorize payment of the applicant’s extra time spent on special projects.

8On or about May 25, 2006, he alleges he met Ms. Junio, his new Quality Assurance Supervisor, for what he thought was a performance evaluation. Instead, the applicant alleges it turned out to be an opportunity for Ms. Junio to document a bad performance review that he believed would be used to justify future action against him. Her comments during the meeting were negative and inaccurate. In his view, this was consistent with the pattern of discriminatory harassment he had been receiving from management.

9On or about June 19, 2006, the applicant met with Ms. Junio again, this time for direction regarding the corporate respondent’s new criteria for evaluating labelled tubes. In that meeting, Ms. Junio admonished him for essentially not performing his job properly; for example, permitting defective product to be shipped. Although he explained that he was performing his job in accordance with a sampling plan, which was based on a statistical formula which, sometimes allowed bad samples to be shipped and good samples to be rejected, he claims Ms. Junio insisted on assigning blame to him. He alleges she did this in order to justify some basis for his dismissal.

10The applicant alleges he sought the corporate respondent’s human resources department intervention on several occasions but nothing was done. He alleges that when Mr. Bhalloo realized that the corporate respondent condoned his attitude, the harassment escalated and soon co-workers participated in the harassment by making discriminatory comments and jokes.

11Finally, the applicant alleges that his employment was terminated as a result of filing a human rights complaint with the Commission.

The Response

12The corporate respondent’s Quality Control Department is divided into three branches: auditing, quality control and laboratory. The most highly skilled and valuable positions are in the laboratory; laboratory employees are thus paid more than the control inspectors and the auditors. The respondents assert that, contrary to the applicant’s allegations, the corporate respondent’s workforce is diverse with no dominant national or ethnic group in Quality Control.

13The respondents deny the allegations of differential wages and benefits. There was no promise of a retroactive wage increase and his wage increases were consistent with those paid to other employees. Mr. Bhalloo approved all time cards for payment of any assigned work submitted by the applicant. Mr. Bhalloo stated that the applicant had mentioned he did some work while at home but this work was not assigned nor did he claim any payment for such work.

14The respondents acknowledge that the applicant frequently complained about Mr. Bhalloo’s “harassment” and claimed that he poisoned others against him, however they deny that the applicant related it to his place of origin, ethnic origin or ancestry. They say any tension between the two men resulted from the applicant’s refusal to follow direction and his “self-segregation” to the extent that he would communicate almost exclusively through email even to those seated in his work area. Mr. Bhalloo denied using electronic devices or assigning anyone to monitor the applicant.

15Mr. Bhalloo explained his request that the applicant’s participation in the weekend March 2006 move of the laboratory was simply an attempt to relocate a department without it affecting operational production. Three weeks prior to the scheduled move, he called a departmental meeting, at which the applicant was present, to discuss the move. The applicant did object to moving the department over the weekend at that time. The day before the move that the applicant informed Mr. Bhalloo he would not participate on the Saturday suggesting that the move could be accomplished in approximately an hour on the following Monday before his shift started. He discussed this with the applicant but was unable to persuade him to participate. The applicant was ultimately not required to participate in the relocation of the laboratory. The move took an entire day to accomplish.

16As noted above, the applicant’s duties included inspecting incoming supplies and releasing them for use in production. The corporate respondent uses a sampling system known as a “military sampling plan” for incoming quality. If incoming product approved by an incoming quality inspector did not meet specification it could result in rejection at the production stage and thus halt the production line.

17Ms. Junio explained that her meeting with the applicant in May 2006 was to address performance issues such as his ability to follow direction and his timeliness. She testified that the applicant became defensive, blamed others for problems and refused to accept that he was failing to perform his job to expectations. As a result, the applicant received a written warning dated May 25, 2006. The applicant responded to his performance evaluation by claiming his performance evaluation was inaccurate but did not raise any issues of discrimination or harassment.

18In light of the applicant’s complaints about the “military sampling plan” and the high frequency of rejections, Ms. Junio testified that she came to suspect that the applicant was not following the plan properly. In June 2006, she met him again to discuss the shipment of caps he had inspected and released. The applicant stated he followed the plan; Ms. Junio did not believe him. In another incident, Ms. Junio suspected the applicant had deleted information from a database that Ms. Junio relied on to perform her job. As a result, Ms. Junio issued another written warning dated June 26, 2006, arising from the two incidents mentioned above, which she testified occurred on June 21, 2006. Ms. Junio specifically denied that the applicant had made any allegations that he was being subjected to discrimination.

19In July 2006, the corporate respondent states it recognized that there was no reasonable prospect that the applicant would improve his performance or his attitude towards his work. In addition to not following sampling procedures as required by the corporate respondent, he was generally uncooperative with his supervisor, manager and co-workers. Further, in the attempts to coach him, the applicant refused to acknowledge any issues with his performance and instead blamed others for the issues.

20The respondents deny the applicant’s employment was terminated as a reprisal for filing his initial complaint with the Commission in June 2006. The respondents state they had no knowledge of any human rights complaint filed with the Commission until approximately six weeks after the applicant’s employment was terminated.

DECISION

21After reviewing all the evidence and considering the parties’ submissions, on balance, I find that the applicant was not subjected to differential treatment or harassed on the basis of his place of origin, ethnic origin or ancestry.

22Additionally, I am satisfied that the applicant’s employment was terminated due to performance issues. More importantly, I am not satisfied that the applicant informed the respondents of his human rights complaints or allegations during the course of his employment and that the respondents did not know about his complaints until they were served with his first Commission complaint, which occurred sometime after his termination. Accordingly, I deny the applicant’s claim of reprisal. My reasons are as follows.

ANALYSIS

23The applicant did not submit any direct evidence that he was subjected to discrimination with regards to the Code enumerated grounds he has referenced in his Applications. He essentially relied on the credibility of his testimony to substantiate his allegations. In any event, 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.

24I understand the applicant believed he was treated unfairly by the respondents. However he was unable to provide me with any evidence, other than bald assertions, to support his claim that the unfair treatment he experiences was related to his place of origin, ethnic origin or ancestry.

25With respect to the alleged differential pay and benefits the applicant confirmed that he had no actual knowledge of the wage rate of any other co-worker but was generally aware that different rates of pay existed for employees who worked in the Laboratory. He acknowledged that the jobs in the laboratory were different from his job and that different jobs could warrant different rates of pay. The applicant failed to establish he was paid differently or received lower pay raises when compared to other quality control inspectors with his level of seniority or those more junior to him. Nor could he connect the alleged differential treatment of other employees to their place of origin, ethnic origin or ancestry. As such I am unable to find the applicant has made out a prima facie case of discrimination with respect to these allegations.

26The applicant testified Mr. Bhalloo monitored him, rejected his claims for pay in relation to extra work, made inappropriate comments and failed to address his complaints about the infringement of his human rights which spurred his co-workers to harass him on the basis of the enumerated grounds listed in his Applications. The applicant also mentioned he complained to Ms Dhillon on numerous occasions about the infringement of his protected rights but nothing was done.

27Mr. Bhalloo testified that there was no “oversupervision” of the applicant, that he did not make any inappropriate comments on the basis of any enumerated ground, that to his knowledge he approved all of the applicant’s time card requests for extra pay for the extra work he performed, and that the applicant did not complain about the infringement of his rights during his employment. Mr. Bhalloo testified that the applicant did complain to him about work-related issues but in his view, the concern with the applicant which eventually led to his termination, was his inability to follow direction, his “self-segregation” and concerns with his performance.

28There is a significant difference in the version of events. I must decide which version of events is more credible. Assessing credibility involves a variety of factors. The Tribunal has applied the approach identified by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which includes considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the Court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 the 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.

29After reviewing the evidence, I find that the testimony of the respondents and Ms. Junio was logical, consistent and reasonable. In contrast the applicant’s testimony lacked significant detail, was vague and contradictory.

30The applicant provided few details to support his allegation that his co-workers made any inappropriate comments or jokes about his place of origin, ethnic origin and/or ancestry. He was unable to either name the co-workers who harassed him or provide an example of comments or jokes he had heard. He agreed he did not raise these concerns with any other employee or management.

31The applicant was unable to describe how he came to believe that he was being electronically monitored or how he determined that Mr. Bhalloo was using co-workers from his “community” to monitor him.

32Despite having alleged he experienced ongoing harassment by Mr. Bhalloo when pressed, the applicant was able to provide only a single example of a harassing comment made toward him by Mr. Bhalloo. The applicant was unable to explain how he perceived the comment about him having his head in a plastic bag, which Mr. Bhalloo denied making, was connected to his place of origin, ethnic origin or ancestry. He did say that Mr. Bhalloo’s comments made him feel inferior in the performance of his job but was unable to explain how comments about his job performance were related to discrimination on any of the alleged grounds.

33In my view, the applicant’s testimony with respect to the alleged harassment was so vague and devoid of the detail one would reasonably expect to hear in light of his allegations that I did not find it credible.

34The applicant’s performance of his duties is another significant issue in dispute. According to the personal respondents and Ms. Junio, the applicant failed to accept his performance was an issue. He denied he had any knowledge of the contents of the warning letters issued to him in May and June 2006. He also denied that there was a problem with his use of the military sampling system. In his view, the issue of performance was used to justify his harassment by management

35I do not accept that the applicant had no knowledge of the contents of the May 2006 warning letter. The applicant testified that he did not sign the first warning letter because he did not read or look at since it was completely unfair. While he may not have read or signed the letter he attended the meeting where concerns about his performance were raised and knew the circumstances which caused them to be issued. In Application TR-0262-09 he notes that, with regard to his first warning, his meeting with Ms. Junio was intended to “document a bad performance” in order to “justify something else in the future”.

36The applicant denied ever seeing the June 2006 warning letter; he called it a lie. Even if I accepted the applicant’s testimony, I am satisfied that his performance was a particularly significant issue during the relevant time. In his first application (TR-0262-09), the applicant particularized the dispute between him and Ms. Junio as relating to her statements that he was not performing his job “properly”, especially with regard to sampling. For example the applicant noted that Ms. Junio accused him of releasing a shipment with “mixed caps”, which the respondents noted formed the basis for his June 2006 warning letter. In any event, the applicant’s statements from his first application contradicted his testimony in which he stated there had been no issues concerning his sampling. Also, the applicant’s email addressed to Ms. Junio, dated June 21, 2006, supports that there was an underlying dispute, as referenced in his first application, involving how he performed his inspection duties. With regard to how best to inspect a shipment of corrugate, he wrote: “Could you give an alternative and reasonable solution?” The applicant’s May 2006 letter also recorded that there was a dispute between him and management regarding his performance. As such, I am satisfied that on balance there was a significant dispute, which the applicant was aware of, concerning his performance of his duties especially with regard to sampling.

37More importantly, after listening to his testimony, I am satisfied that the applicant refused to accept that his performance was inadequate and as such he associated the allegations of poor performance as harassment. Indeed, at no point in his testimony, could the applicant express how the performance dispute was related to his place of origin, ethnic origin and/or ancestry.

38The applicant stated that he frequently complained to Ms. Dhillon about discrimination in his workplace but to no avail. This allegation did not appear in the applicant’s first application (TR-0262-09). Ms. Dhillon and Mr. Bhalloo stated that while the applicant complained to them, he did not complain about discrimination. In my view, if the applicant believed, as he asserts, that his Code protected rights were being infringed, I would have expected some corroboration of his complaints to management. Indeed, this applicant has showed that he could be assertive towards management, i.e. refusing to participate in his departmental relocation and disagreeing with a management direction as is provided by his June 21, 2006 email. More importantly, as is made evident from his letter dated May 29, 2006, he could express his disagreement effectively with management in writing. As such, had the applicant complained as he testified, and to no avail, I would have expected some written record from him during the relevant time; instead, there is no such document. Accordingly, I am not satisfied that the applicant complained about the infringement of his protected rights to the personal respondents or Ms. Junio during the course of his employment.

39Therefore, for all the above reasons I am not satisfied that the applicant was subjected to any differential treatment or harassment on the basis of his place of origin, ethnic origin or ancestry or that those grounds were a factor in the decision to terminate the applicant’s employment.

Reprisal

40The applicant has also alleged that the respondents terminated his employment as reprisal for his having filed a human rights complaint with the Commission.

41I am not satisfied that there is any credible evidence to contradict the respondents’ testimony that they were unaware of the applicant’s human rights allegations, and his June 22, 2006 Commission complaint in particular, until after his employment was terminated.

42There is no dispute the applicant’s first Commission complaint was not sent to the respondents until August 17, 2006. However, the applicant asserts the respondents knew of his Commission complaint well before his termination and before it was delivered to them by the Commission. I cannot accept this assertion for the following reasons.

43In his Application alleging reprisal the applicant claims his employer became aware of his complaint through co-workers. He could not name the co-workers he told about his complaint. In the will-say statement prepared for the hearing the applicant stated he had told management, in particular Bhalloo and Dhillon, about his Commission complaint prior to his termination. However, in his testimony, the applicant initially denied telling either Bhalloo or Dhillon of his complaint. Subsequently, after a break in the proceedings, he reversed himself and claimed he that had told them. He went on to claim the employer had offered him some money to drop his Commission complaint on July 12, 2006 the date his employment was terminated. The release the applicant stated he was asked to sign in relation to his human rights complaint during that meeting was a general release and does not refer to any specific Commission complaint.

44In cross-examination, the applicant stated he had told Ms. Dhillon about the complaint twice but could not remember the context of the discussions. Ultimately, he admitted he could not remember accurately the context of any discussion about his human rights complaints.

45I am satisfied, in light of the numerous and unexplained contradictions and inconsistencies in his testimony and pleadings, that the applicant’s evidence in support of the alleged reprisal is simply not believable on a balance of probabilities.

46Accordingly, I am satisfied that the respondents were not aware of the applicant’s first Commission complaint until after he was terminated. Without any knowledge of the complaint, or the applicant’s human rights complaints in general, I am not satisfied that the respondents had any knowledge of those complaints and thus did not have any intent to reprise.

47In all the circumstances, the Applications are dismissed.