HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Diana DiCicco
Applicant
-and-
Barry Cullen Chevrolet Cadillac Ltd., Mark Cullen and Tom Pollard
Respondents
Case resolution conference decision
Adjudicator: Ailsa Jane Wiggins
Indexed as: DiCicco v. Barry Cullen Chevrolet Cadillac
AppearanceS BY
Diana DiCicco, Applicant ) Carol S. VandenHoek, ) Counsel
Barry Cullen Chevrolet Cadillac Ltd., ) Donald Kidd Mark Cullen and Tom Pollard, ) Counsel Respondents )
Introduction
1This Case Resolution Conference Decision deals with an Application filed on December 10, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on October 12, 2005 and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that in the course of her employment with the corporate respondent, a car dealership, she was sexually harassed and discriminated against by the individual respondent, Tom Pollard. She says that she was discriminated against on the basis of sex, marital status and association and subjected to reprisal.
3The respondents deny all of the applicant’s allegations and say that her allegations were fabricated to explain away her poor sales performance and were part of a personal vendetta against Mr. Pollard.
4A Case Resolution Conference (“hearing”) was held on September 2 and 3, 2009 and October 20, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. Final written submissions from the applicant were received by the Tribunal on November 2, 2009 and final written submissions from the respondents were received by the Tribunal on November 6, 2009.
5At the hearing I heard testimony from the applicant, the individual respondents, Mark Cullen and Tom Pollard, and Geoff Allen, Steve Montyro, Conrad Wheildon, Joan Mitter, Scott Campbell and Craig Cullen. On agreement of the parties the testimony of five other witnesses for the respondents, Barry Cullen, Robin Pawlak, Cheri Anne Sanvido, Blake Barrett and A.J. Charest, was tendered in the form of written statements.
Allegations and Evidence
6I have carefully considered all of the evidence and the submissions of the parties. Given the numerous allegations, the divergent testimony and the fact that there were minor differences between the parties’ and the witnesses’ oral testimony and the written materials filed with the Tribunal, I have set out below an overview of the main allegations and evidence which was important for the purposes of arriving at my decision. I believe that the cause of the minor differences was the natural effect of the passage of time on the parties’ and the witnesses’ memory.
7The corporate respondent is a family owned and operated car dealership in Guelph, Ontario.
8The applicant started employment with the corporate respondent in the spring of 1997 as a new car sales representative, reporting to the individual respondent, Tom Pollard, who was then the new car sales manager.
9In 2001 Tom Pollard was promoted to general sales manager. He left the corporate respondent in April 2007 to become general manager of another dealership.
10In September of 2001 the applicant transferred to the used car department reporting to the used car sales manager, Larry Haddow.
11The individual respondent Mark Cullen is Vice-President of the corporate respondent.
12Steve Montyro, the applicant’s husband, was a sales representative at the corporate respondent. The applicant and Mr. Montyro were in a relationship when he resigned from the corporate respondent’s employment in 1999. They married in October of 2004.
13The applicant’s primary complaints against the respondents are illustrated by the following incidents and categories of incidents.
Unwanted Attention
14The applicant testified that she originally got on well with Tom Pollard but in 1999 he called her at home almost every day and asked her questions that made her uncomfortable such as “What are you wearing?” She did not tell him to stop because she was worried that he would retaliate if she complained.
Touching
15The applicant claimed that Tom Pollard touched her hand and her hair sometime during 2000. The applicant testified that she could not recall any other incidents involving touching or unwanted attention after May 2000.
16Tom Pollard denied touching the applicant saying that she smelled like smoke and he stayed away from her because the smell of smoke bothered him. He admits that from 1998 to 2000 when he was new car sales manager he may have made some inappropriate remarks or taken some inappropriate actions but that they were insignificant and the applicant did not ask him to stop.
Being called BooBoo
17The applicant testified that Mr. Pollard called her “BooBoo” almost daily during 1999 and 2000. Mr. Pollard said the term was used to encourage her and that he called other sales persons “BooBoo” too. Both the applicant and Mr. Pollard testified that when she asked him to stop calling her “BooBoo” he complied.
Racial Slurs and Jokes
18The applicant testified that when she told Mr. Pollard that Steve Montyro’s father was from Bombay, he referred to Steve Montyro as a “fucking Paki”. Scott Campbell testified that the applicant reported this incident to him. He worked with the applicant in the used car department and they had become friends.
19Mr. Pollard denied making the remark.
20Joan Mitter, business manager at the dealership from September 2004 to June 2005, said that she knew that the applicant thought that Mr. Pollard treated her differently after she married and that the differential treatment was because of race. The applicant’s relationship with Mr. Montyro is also the basis of her allegation of discrimination on the ground of association with a person identified by Code protected grounds.
21The applicant also testified that between 2000 and 2005 when non-white customers were in the lot Mr. Pollard would make degrading comments about them over the intercom. She said that this occurred fairly regularly, usually in the evening when “upper management” were not there. She stated that other employees went along with this behaviour and considered it a joke.
22Mr. Campbell, who has been used car sales manager since 2005, testified that Mr. Pollard would make racial jokes and imitate accents in a joking manner. He said this behaviour was not directed at anyone in particular. He could not recall hearing racial comments over the intercom.
23Mr. Montyro testified that he recalled Mr. Pollard making inappropriate comments over the intercom during the evening when management was not there. He said that he may have spoken to Mr. Pollard or Eric Kemp, the former general sales manager, about the comments.
24Geoff Allen, a former employee and former new car sales manager of the dealership, testified that he witnessed Mr. Pollard making racist and sexist jokes and that this was well known at the dealership. He made no mention of racial slurs over the intercom.
25Conrad Wheildon, started work with the corporate respondent in 2004 as a sales representative. He and Joan Mitter both testified that they never heard Mr. Pollard make racial slurs over the intercom or otherwise.
26Mark Cullen testified that he never heard any racial slurs over the intercom and that no one told him that this was occurring.
27Mr. Pollard denied making racist remarks over the intercom but admitted that he might have told the occasional racist joke.
Differential Treatment
28The applicant claimed that Tom Pollard gave preferential treatment to those employees who he favoured. She said that he used his influence to deny her deals and assisted a female sales person with whom she alleged he was having an affair. She also alleged that he had affairs with other female employees.
29Mr. Montyro testified that it was common knowledge that Mr. Pollard was having a relationship with a female salesperson.
30Mr. Campbell testified that there were rumours of affairs at the dealership.
31Mr. Wheildon and Ms. Mitter testified that they witnessed no differential treatment based on gender or anything else.
32Mr. Pollard denied having an affair with anyone at the dealership and maintained that he treated everyone equally.
33The respondents introduced documentary evidence to show that deals were directed to the applicant on a regular basis from 1999 to 2005. However she was given only one in 2005.
May 2000 Complaint
34The applicant testified that in the spring of 2000, Eric Kemp, then general sales manager, took her to meet with Barry Cullen, President, to discuss Mr. Pollard’s behaviour. She said that the meeting was Mr. Kemp’s idea. She did not ask for the meeting and Mr. Kemp did not tell her what it was about in advance. She said that she told Mr. Kemp and Mr. Cullen that she did not want to pursue the matter further. She testified that her reluctance was due to fear of retribution but that she could not remember if she said that at the meeting.
35A memo to file from Eric Kemp dated May 29, 2000 states that the applicant initiated a conversation with him regarding moving to the used car department to get away from Mr. Pollard, his manipulative ways and sexual overtures. Eric Kemp spoke to Barry Cullen and they met with the applicant on May 29, 2000. The memo confirms that the applicant was adamant that they should not approach Mr. Pollard regarding her allegations. In cross examination the applicant admitted that the memo was accurate and that she had initiated the conversation.
36On July 13, 2000, Barry Cullen sent the applicant a memo enclosing the dealership’s sexual harassment policy and advising her that if she wanted the dealership to investigate her allegations she should put her complaint in writing. The memo also stated that Barry Cullen would be meeting with the management team to review the dealership’s sexual harassment policy.
37Tom Pollard testified that sometime in 2000 Barry Cullen called him into the office and spoke to him about the sexual harassment policy. He assumed that Mr. Cullen was talking to all the managers about the policy. Mr. Pollard testified that he did not become aware of the applicant’s May 2000 complaint until June 2005.
The Applicant’s Sales Performance
38On November 9, 2004 Tom Pollard and Craig Cullen met with the applicant to discuss her sales performance. This was the first such meeting.
39On December 16, 2004 Tom Pollard and Larry Haddow met with the applicant to discuss her sales performance and Mr. Pollard suggested that the applicant move back to the new car sales department.
40At a third meeting on January 6, 2005 with Tom Pollard, Larry Haddow and Craig Cullen the applicant was told that they would have to “part company” if her sales did not improve.
41No follow-up meetings took place between January and June of 2005. The applicant testified that during that time Mr. Pollard exercised his power and control over her sales volume so that she had difficulty meeting her targets. She testified that Mr. Pollard could reject deals and refer customers to the sales person of his choice.
June 2005 Complaint and the Dealership’s Response
42On June 1, 2005 the applicant wrote to Mark Cullen, Vice-president of the dealership, to complain that a former customer who had purchased a car from her in 1999 had recently purchased a car from Mr. Wheildon. The applicant suggested that the customer should have been directed to her and that such situations might explain the lack of “a positive work environment” at the dealership.
43Mr. Wheildon testified that he also knew the customer personally and did not know that the applicant had sold her a car five years earlier.
44Mark Cullen regarded the applicant’s June 1, 2005 complaint as an excuse for her poor sales performance. At a brief meeting with the applicant and Larry Haddow on June 2, 2005 he advised her that Tom Pollard was going to split the commission between her and Mr. Wheildon. He handed her a letter setting out sales targets to achieve by August 31, 2005 or her employment would be terminated. His letter did not address the issue she raised in her letter.
45The applicant wrote to Mark Cullen again on June 13, 2005 stating that his June 2, 2005 letter was not fair or valid and referring, without explanation, to “the inappropriate actions of Tom Pollard”. She also noted in the letter that she was the only female sales person to work in the used car department. She also did not explain her concerns in that regard.
46Mark Cullen met with the applicant on June 20, 2005 and gave her a letter apologizing to her but also restating that if the targets set out in his letter of June 2, 2005 were not met her employment would be terminated. He set out the history of the applicant’s declining sales performance and noted that the eight cars a month target came from a salesperson’s agreement that she had signed the previous year. It also indicated that he did not understand her comment about being the only female sales person in used car sales.
47Craig Cullen testified that the target set for the applicant was reasonable and that everyone except new hires had an eight car a month target.
Termination of the Applicant’s Employment
48Mark Cullen had no further discussions with the applicant concerning her job performance. Craig Cullen, new car sales manager, testified that he met with the applicant on July 4, 2005 and had several other short talks with her as part of his usual “walkabouts”.
49The applicant did not meet the sales target set for her by one unit. She did not receive a termination letter from the corporate respondent but at the end of her shift on August 31, 2005 she cleaned out her office. Neither of the individual respondents was present. The applicant asked Craig Cullen what to do with her keys. Craig Cullen called Mark Cullen at home. Craig Cullen told Mark Cullen that the applicant was one below her target. Mark Cullen testified that he thought she was on target. Craig and Mark Cullen both testified that Mark Cullen said that the applicant could stay.
50The applicant testified that despite Mark Cullen’s response she believed that her employment with the corporate respondent was at an end because she had not met the sales target in the June 2, 2005 letter or been informed in writing that the target had been waived. The applicant confirmed this in a letter to the dealership dated September 1, 2005. Her letter also stated that she had been harassed and intimidated.
51On September 8, 2005, Mark Cullen wrote to the applicant saying that the corporate respondent had not terminated her employment on August 31, 2005. The letter referred to her meeting with Craig Cullen and the conversation between Craig and Mark Cullen regarding her continuing employment. The letter stated that her position was still available and she could resume her employment but if they did not her from her by September 16, 2005 they would consider her to have resigned effective September 1, 2005.
Analysis and Decision
52Any incidents that occurred more than a year prior to the applicant filing her Complaint are outside of the scope of this Case Resolution Conference (“CRC”) Decision unless they were part of an ongoing course of conduct or pattern of harassment that continued throughout her employment. In my view the evidence did not indicate that the earlier incidents, the alleged unwanted attention and use of the name “BooBoo” formed part of an ongoing course of conduct. Mr. Pollard stopped calling the applicant BooBoo when she asked him to do so. The alleged unwanted attention and use of the name “BooBoo” bear little relation to the applicant’s other allegations and in any event both stopped in or about 2000. This means that the only allegations to be dealt with in this Decision are the racial slurs and sexist remarks which were alleged to have occurred from 2000 to 2005, differential treatment which was alleged to have occurred most recently in 2005, her June 1, 2005 complaint and the termination of the applicant’s employment as reprisal for her June 1, 2005 complaint.
53There were significant conflicting allegations and evidence regarding the events in dispute. There was little in the way of documentary evidence and while each party adduced some direct eyewitness testimony, both sides attempted to impugn and discredit such evidence. Consequently, this CRC decision turns largely on my assessment of the credibility of the evidence given by the witnesses. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
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 carries 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 a 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.
54In addition, I have considered the following factors set out in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.
55The applicant called as witnesses her husband and one former employee, Mr. Allen. Much of her husband’s evidence refers to things he was told by the applicant. He left the dealership in 1999 and so had no personal knowledge of events at the dealership after that date. He has an interest in the outcome of this case given his relationship with the applicant. For these reasons I have given little weight to Mr. Montyro’s evidence.
56Mr. Allen’s testimony supported the applicant’s allegations regarding racial slurs and differential treatment, but his testimony lacked detail and he had no personal knowledge of events at the dealership after he left in 2002. The lack of detail may be attributable to the effect of the passage of time on his memory.
57The applicant testified that she did not speak to any other women at the dealership about her problems with Mr. Pollard and that the only person at the dealership she discussed it with has since died.
58The applicant admitted in cross examination that while she believed that Mr. Pollard was trying to control the money she made she had no proof of that or to the extent that he may have directed customers to others; she admitted that his referrals may have been based on business reasons.
59An unfavourable inference may be drawn when a party fails to call a material witness. Such a failure may be viewed as an implied admission that the evidence of the absent witness would be contrary to or would not support the party’s case. The applicant did not call several witnesses that she referred to in her Statement of Additional Facts. The employees she referred to, past and present, were alleged to have witnessed or experienced inappropriate behaviour, discriminatory comments and/or preferential treatment. When asked why she did not call these witnesses she indicated that they did not want to be involved. In her counsel’s written closing submissions she referred to the fact that one of those witnesses was on the respondent’s witness list but did not testify at the CRC. As the applicant could have summoned the witnesses I find that they would not have substantiated the allegations in the applicant’s complaint.
60The respondents’ witnesses consisted of both current and former employees. While current employees might be concerned about their ongoing employment relationship and so be inclined to testify in support of their employer, former employees would not have those concerns. One of the respondents’ witnesses, Scott Campbell, a current employee, did support the applicant’s allegations that Tom Pollard made racial jokes. He did not recall if he heard racial remarks over the intercom. The rest of the respondent’s witnesses, while not disagreeing with everything the applicant said about the atmosphere at the dealership, did not support the applicant’s allegations against the respondents.
61Only the applicant and her husband testified that they heard Mr. Pollard make racial and sexist remarks over the intercom. As no other witness testified to hearing such remarks, and most, if not all, were in a position to do so, I find that there is no evidence to support that allegation. In addition, it seems improbable to me that a sales person or sales manager at a car dealership would make racial remarks over the intercom directed at customers on the lot. Such remarks might be overheard by management or reported to management by another employee or a customer. More important, such remarks would alienate potential customers and thus be contrary to the sales person’s or sales manager’s interests.
62The applicant’s June 1, 2005 letter implied that Tom Pollard had given preferential treatment to Conrad Wheildon and stated that because of such behaviour the dealership was having difficulty maintaining a positive work environment. The letter did not refer to harassment or discrimination under the Code; rather it was a complaint to management about a specific situation in which the applicant believed that her former customer should have been directed to her. However, as noted above, Mr. Wheildon also had a relationship with the customer and in any event Mr. Pollard decided to split the commission between the applicant and Mr. Wheildon.
63The applicant’s letters of June 1, 2005 and June 13, 2005 did not contain anything that should have suggested to management that the applicant was experiencing harassment or discrimination, nor, despite Mark Cullen’s indication in his June 20, 2005 letter that he did not understand her concern about being the only female sales person, did she speak to anyone in management between June 1 and August 31, 2005 to explain her concerns about Mr. Pollard. The fear of reprisal is sometimes the explanation for failure to bring a complaint of harassment or discrimination to management’s attention. However in this case the applicant had been put on notice that her employment would be terminated if she did not meet her sales target. Under those circumstances one would expect an employee who believed that the reason for her poor performance was harassment or discrimination to bring those allegations to management’s attention in a detailed manner. The applicant did not do so and indeed she continued to take most of her deals to Mr. Pollard for approval when she could have gone to another manager.
64The onus is on the applicant to show that, on a balance of probabilities, the respondents harassed her on the basis of sex, marital status and association and reprised against her as alleged. I am not satisfied that the applicant has provided a credible or reliable account of events in regards to her allegations that the respondents harassed her and in so doing discriminated against her based on her sex, marital status and association or that her employment was terminated in retaliation for her June 1, 2005 complaint.
65While the corporate respondent may be open to criticism for its human resources practices in the way that it handled the applicant’s performance, the issues before the Tribunal are harassment, discrimination and reprisal, not employment law issues. The evidence supports the respondents’ position that the applicant’s sales were down and so she was coached and given a reasonable sales target. In my view the corporate respondent’s actions in this regard were taken in response to the applicant’s poor performance and were untainted by discriminatory considerations.
ORDER
66For all of these reasons the Application is dismissed.
Dated at Toronto, this 30th day of September, 2010.
”signed by”______________
Ailsa Jane Wiggins
Member