HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Seyedeh Moghimi
Applicant
-and-
Honeywell Limited and Janet Moynes
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Moghimi v. Honeywell
APPEARANCES
Seyedeh Sherri Moghimi, Applicant ) Self-represented
Honeywell Limited and Janet Moynes, Respondents ) Sven Poysa, Counsel
1This is an Application dated June 23, 2009, and made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 28, 2005.
2The applicant alleges that she experienced discrimination and harassment in employment because of age, colour, ethnic origin, place of origin, race and sex, contrary to ss. 5(1), 7(2) and 9 of the Code. While age was one of the grounds of discrimination alleged in her complaint, the applicant did not provide any evidence or submissions to support an allegation of discrimination on this ground; as a result, I will not consider age discrimination further in this Decision.
3The hearing in this matter was held on March 23, May 18 and June 16, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the personal respondent and four other witnesses. Cross-examination of the parties was deferred pending completion of questioning all other witnesses. Also on consent of the parties, the hearing in this matter was bifurcated to deal first with the issue of whether there was a violation of the Code, and then at a later time to address any issue of remedy should a Code violation be found.
Background
4The applicant commenced employment with Honeywell on a part-time contract basis in April 2000. Commencing September 8, 2003, the applicant was employed by Honeywell in a full-time administrative position at its System Design Center (“SDC”). The applicant’s employment was terminated on September 14, 2005.
5The personal respondent Janet Moynes has worked at Honeywell for 18 years. In early 2003, Ms. Moynes was the Project Administration Team Leader for the SDC. Shortly after the arrival of a new manager, Don Anderson, Ms. Moynes was taken out of her Team Leader position and was responsible for finances, metrics and as Mr. Anderson’s personal assistant. Following Mr. Anderson’s departure in late April 2005, Ms. Moynes resumed her role as Team Leader, and currently is the Office Manager and Administration Team Leader for the SDC.
6The applicant’s allegations span much of the time period of her full-time employment at Honeywell. In my view, the applicant’s allegations can be usefully organized by the time period when they occurred and by the nature of the allegations. The first set of allegations relates to the time period when Mr. Anderson was manager of the SDC. During this period, the applicant alleges that she was the subject of sexually-related comments and gossip primarily relating to an alleged relationship with Mr. Anderson. The next set of allegations relates to the time period following Mr. Anderson’s departure, when Ms. Moynes became the applicant’s direct supervisor. During this period, the applicant alleges that changes were made to her hours of work, that she was inappropriately monitored at work, and that she was subjected to other adverse comments and treatment by Ms. Moynes. A third set of allegations relates to alleged racial comments made by Ms. Moynes. A fourth set of allegations relates to the imposition of a Performance Improvement Plan on the applicant in early September 2005 and the subsequent termination of her employment. Finally, a fifth set of allegations relates to the applicant having raised her concerns about how she was being treated with various members of Human Resources and management, and that they failed to take appropriate action.
7I will address each of these sets of allegations in turn.
Allegations regarding Sexual Harassment
8In her complaint, the applicant states that she was sexually harassed by unwelcome comments to her face or to her colleagues rumouring that she and her manager, Mr. Anderson, were having an affair. The evidence of the applicant and Mr. Anderson is quite clear that they did not, in fact, have any kind of affair or romantic relationship.
9Apart from general evidence about such rumours and the specific comments attributed to Ms. Moynes (addressed below), the applicant did not provide any specific evidence or particulars regarding who is alleged to have made such comments, what they are alleged to have said, when and in what context. The applicant also testified that there was a rumour going around that she was a “spy” for Mr. Anderson, and that her colleagues were afraid to talk to her because they thought she was a “spy”.
10Mr. Anderson testified at the hearing, and stated that during the last month of his tenure (which was in March and April 2005), the applicant brought to his attention that people were saying that she was his favourite, and he told her to ignore gossip like that. Mr. Anderson was very clear in his evidence that no one, including the applicant, ever raised with him that rumours were circulating about an affair between them.
11In November 2004, a Human Resources Leader with Honeywell, Monica Pundzias, conducted an investigation at the SDC as a result of high turnover and dissatisfaction with Mr. Anderson as manager. During the course of this investigation, which involved group and individual meetings with employees, a number of concerns were raised about Mr. Anderson displaying favouritism towards the applicant. The report prepared by Ms. Pundzias, which was framed as a memo to Mr. Anderson, includes the following statements:
Favoritism / Inconsistencies: It is believed that certain employees are granted privileges that others do not receive – this is especially true with administrative staff. This has created a situation of conflict between ‘favored’ employees and the rest of the team, which has negatively impacted teamwork and collaboration. It is also believed by some, that you have encouraged this form of conflict within the team. All parties involved expressed a high level of personal stress and dissatisfaction as a result.
Favoritism: Several employees from various levels / positions within the SDC perceive that you have a favorite employee who is acting as your ‘informant’ because this person spends a considerable amount of time in your office and has had an influence over your decisions. This has had a negative impact on your perceived leadership credibility. I would suggest that you manage your time with this person accordingly and be aware of the impact of this person’s behavior on others.
12Ms. Pundzias testified that the applicant was the person who was perceived to be Mr. Anderson’s favourite. The statements in Ms. Pundzias’ report are supported by the contemporaneous notes she made of her meetings with SDC employees. One employee reported that the administration team works under tension, that the applicant makes it difficult on all the others and is the source of problems, and that the applicant talked to Mr. Anderson a lot and “related everything”. Another employee reported that there was favouritism towards the applicant, that she gets away with coming in late when no one else can, that she puts in a lot of unnecessary overtime, and that Mr. Anderson allowed her to spend a lot of time in his office.
13Ms. Pundzias also testified about her meeting with the applicant as part of the investigation, for which she also made contemporaneous notes. While the applicant did raise gossip and unwelcome remarks at this interview, Ms. Pundzias’ evidence, as confirmed by her notes, is that the applicant’s biggest concern was the gossip and comments about her being Mr. Anderson’s favourite. Ms. Pundzias was clear in her evidence that no one, including the applicant, reported to her any rumour about the applicant and Mr. Anderson having an affair.
14I found Ms. Pundzias to be a very credible witness. Her evidence was supported by contemporaneous notes and documents from the relevant time, and she was careful in her evidence to differentiate between things that the applicant might have said to her but that she doesn’t recall and things that she was clear were not said to her by the applicant.
15It is clear that there was gossip and rumours circulating at the SDC about the applicant being Mr. Anderson’s favourite, on the basis that she was perceived to be granted privileges, such as coming in late, being able to work lots of overtime and being able to spend a significant amount of time in his office, that were not granted to others. However, in the absence of any specifics or particulars about rumours of an affair between the applicant and Mr. Anderson and in light of the evidence that no such rumours were raised by the applicant with either Mr. Anderson or Ms. Pundzias, I find that I do not have a sufficient evidentiary basis to support a factual finding that there were rumours about an affair. Further, I find that the gossip and rumours about favouritism for which there is an evidentiary basis were related to work issues, and not to the applicant’s gender.
16The applicant states that sometime in late 2004 or early 2005, as they were going to a meeting, Ms. Moynes made a comment to the applicant about her “flaunting her body” because she was wearing a low-cut blouse. This is denied by Ms. Moynes. Once again, there is a significant lack of specifics or particulars regarding this allegation, such as the date on which the comment was alleged to have been made or other details that would provide some specific context for this comment. In my view, in the absence of such specifics or particulars, it is unfair to require Ms. Moynes to respond to an allegation with this degree of vagueness. Accordingly, I decline to make any factual finding arising out of this allegation.
17The applicant states that at a holiday lunch in December 2004, Ms. Moynes said that the seat next to Mr. Anderson was “reserved” for the applicant. The applicant states that she objected to this comment from Ms. Moynes. Ms. Moynes acknowledges making this comment, but states that it was at a team lunch and not a holiday lunch and denies that the applicant objected to the comment. Ms. Moynes states that when she and the applicant arrived, there were only two seats left, one of which was beside Mr. Anderson. Ms. Moynes states that she made the comment because she did not get along with Mr. Anderson and did not want to sit beside him. It was clear from the evidence before me that Ms. Moynes disliked Mr. Anderson with some degree of intensity. This is supported not only by Ms. Moynes’ own evidence, but also by the notes recorded by Ms. Pundzias of her interview with Ms. Moynes at around this time. As a result, I accept Ms. Moynes’ evidence that this comment was made because she did not want to sit beside Mr. Anderson, and find that this comment does not support any violation of the Code as against the applicant.
18The applicant states that on another occasion, Ms. Moynes said that the applicant was working late to be alone with Mr. Anderson, but the applicant does not recall specifically when this occurred or any more details of this incident. Ms. Moynes denies making this comment. Once again, in the absence of any details or particulars for this allegation, such as when it was made or in what context, I find that it would be unfair to require Ms. Moynes to respond and decline to make any factual finding arising out of this allegation.
19The applicant states that in early 2005, Mr. Anderson offered her a promotion to a Team Leader position, which the applicant turned down. In this context, the applicant states that Ms. Moynes said that the applicant had “got her piece” from Mr. Anderson. The applicant states that in another conversation, Ms. Moynes said that all the attention and respect that the applicant had received was not appropriate, and that assigning the applicant to interview and train new employees was not to Ms. Moynes’ agreement and her opinion was never asked. The applicant states that Ms. Moynes said that the only thing the applicant did right was to reject the Team Leader promotion that she had been offered by Mr. Anderson, because otherwise the applicant would have had more enemies. The applicant states that Ms. Moynes said she was thrilled by Mr. Anderson’s employment being terminated, and that Ms. Moynes felt like an abused wife.
20Ms. Moynes quite readily acknowledges that she told the applicant that she felt like an abused wife as a result of how she was treated by Mr. Anderson, but otherwise denies making the comments attributed to her by the applicant. In my view, even if I were to accept the applicant’s evidence, the statements that she attributes to Ms. Moynes are indicative of the perception of favouritism towards the applicant and do not support a finding of gender discrimination or harassment or any other violation of the Code.
21As a result, I find that the applicant’s allegations of discrimination and harassment because of sex are not supported by the evidence, and these allegations are dismissed.
Allegations regarding Work Changes, Monitoring and other Adverse Conduct
22The applicant’s evidence is that from the time she was hired on a full-time basis, she was allowed to work flexible hours as long as she completed eight hours of work each day. The applicant states that she was allowed to come in at 9:00 or 9:30 a.m. and would work until 6:00 or 6:30 p.m. She states that this changed when Ms. Moynes became her supervisor, after which she was required to arrive at 8:30 a.m. and work the same hours as the other members of the team. The applicant states that she raised this issue with a Human Resources representative, Eric Birmann, and she was told that she had to “obey” Ms. Moynes as her supervisor. Apart from the issue of whether Mr. Birmann used the word “obey”, none of this is disputed by the respondents. Nor is there any basis here to support an allegation of a violation of the Code. The applicant was simply being required to work the same hours as other team members.
23The applicant next states that she was singled out by being required to submit a daily report to Ms. Moynes as of early July 2005, in order to track the number of hours required to complete assigned jobs. The applicant states that she was the only one who was required to submit such a report. In contrast, Ms. Moynes’ evidence is that the requirement for submission of a daily report resulted from changes instituted by the new interim manager, Raj Dilal, and that all employees were required to complete these reports and still do so to the present day. I accept Ms. Moynes’ evidence, and find that there was nothing discriminatory about requiring the applicant to complete a daily report.
24On Thursday, July 7, 2005, the applicant had a meeting with Ms. Moynes. The applicant alleges that Ms. Moynes said at this meeting that there was no future for her at Honeywell, and sent her a job posting for a position outside Honeywell. Ms. Moynes’ evidence is that she met with the applicant to talk about the applicant’s work performance and behaviours. This is supported by an e-mail sent by Ms. Moynes to Mr. Birmann in Human Resources the following Monday, July 11, 2005. Ms. Moynes records that she asked the applicant whether she liked her job, and the applicant responded that she wanted to be in exporting like she was before. This then led to a discussion about jobs inside and outside Honeywell, which prompted Ms. Moynes to provide the applicant with a contact and a job listing.
25The applicant went to Mr. Birmann to tell him about this meeting, and her perception that Ms. Moynes was trying to get rid of her. Mr. Birmann in turn followed up with Ms. Moynes, who advised that the applicant had misunderstood their conversation. Ms. Moynes then met with the applicant again on July 11, 2005. It is at this second meeting that the applicant alleges that Ms. Moynes said that the applicant should not have gone to Mr. Birmann and that if Ms. Moynes wants, she can fire the applicant. This is denied by Ms. Moynes, who once again recorded her notes of the meeting in a contemporaneous e-mail to Mr. Birmann.
26I accept Ms. Moynes’ evidence about these two meetings and prefer it over the applicant’s evidence. Ms. Moynes recorded her recollection of these meetings shortly after the fact. The applicant was clearly confused in her evidence about certain details of the July 7, 2005 meeting. For example, she states that Ms. Moynes provided her with a business card for an employment consultant sometime in August 2005, after this meeting. This is contradicted by Ms. Moynes’ e-mail from the time which expressly states that she provided the contact at the July 7, 2005 meeting. The applicant also alleged in her complaint and testified in chief at the hearing that Ms. Moynes continued to pressure her to apply to other jobs, but then acknowledged in cross-examination that after the July 7, 2005 meeting, Ms. Moynes did not raise any other potential jobs with her apart from internal advertisements that were distributed to all members of the team. I also note that the applicant’s most recent performance appraisal at that time indicated the applicant’s interest in an import/export position, which is consistent with Ms. Moynes’ evidence and with what Ms. Moynes recorded at the time.
27Accordingly, I find that Ms. Moynes did not make the comments at these meetings as alleged by the applicant. Rather, I find that Ms. Moynes was attempting to assist the applicant in light of their discussion at the July 7, 2005 meeting regarding the applicant’s unhappiness with her current work situation, and when Ms. Moynes was advised that this was not welcome, she did not further pursue alternate work opportunities with the applicant.
28The applicant alleges that later that summer, she applied for a job at another Honeywell location, and Ms. Moynes said that she would put the applicant on a Performance Improvement Plan (“PIP”) to make sure that the applicant wouldn’t get transferred and said that there was no future for the applicant at Honeywell. The applicant states that during this meeting, Ms. Moynes raised the example of another employee whom she had put on a PIP and then had gotten rid of because she didn’t like him.
29Ms. Moynes recalls being aware that the applicant had applied for a job at another Honeywell location, but wanted to resolve the issues she was having with the applicant at the SDC first. Ms. Moynes states that what she said was that the last thing she wanted to do was to put the applicant on a PIP, as that would go on her permanent record. Ms. Moynes denies saying that she would put the applicant on a PIP to make sure that she didn’t get transferred, and further denies saying that the applicant had no future at Honeywell. Ms. Moynes does not recall having a discussion with the applicant about the other employee who was put on a PIP, and denies that she said that she was the one who put this employee on a PIP to get rid of him. Ms. Moynes’ evidence, which is supported by Raj Dilal, is that this employee was put on a PIP by another manager and then subsequently terminated by Mr. Dilal.
30I accept Ms. Moynes’ evidence regarding this discussion, and prefer it over the applicant’s evidence. Ms. Moynes’ evidence is consistent with the evidence of Mr. Dilal regarding the other employee who was put on a PIP, which makes clear that Ms. Moynes was not involved in this action or the subsequent termination. This is inconsistent with the applicant’s evidence that Ms. Moynes said that she put this employee on a PIP because she didn’t like him. I also note that while the applicant’s evidence is that Ms. Moynes threatened to put her on a PIP to prevent her from transferring to another job, no such action was taken by Ms. Moynes at that time and the PIP for the applicant was not presented until later on September 12, 2005. In my view, the circumstances are more consistent with Ms. Moynes’ evidence that she wanted to resolve the issues that she was having with the applicant at the SDC at that time, rather than put her on a PIP.
31The applicant next raises allegations about a performance review meeting that was held on August 31, 2005. While there was some dispute in the evidence regarding whether Honeywell conducted mid-year performance reviews, I accept the respondents’ evidence that this is a normal part of the process. The applicant states that during this meeting, there was no discussion of her performance, but only irrelevant personal questions about her family, the size of her house, and her plans for the future. However, at the same time, the applicant states that as a result of this performance review meeting, all of a sudden her performance was not satisfactory.
32Ms. Moynes denies that there was any discussion of personal matters at the August 31, 2005 performance review meeting. In any event, even accepting the applicant’s evidence that personal matters were raised in this meeting, I find that in the circumstances of this case that does not support any finding of a violation of the Code on the grounds alleged by the applicant. However, I also note Ms. Moynes’ e-mail to the applicant dated August 31, 2005, which is expressed as a recap of part of the conversation they had that day, in which Ms. Moynes details her expectations regarding the signing of a log book by the applicant to keep track of her time. I also note an e-mail sent by Ms. Moynes to Mr. Birmann in Human Resources following the August 31, 2005 meeting with the applicant, in which Ms. Moynes states that she went in to the meeting equipped with the times that the applicant had started and how long her lunches and breaks were for the preceding couple of weeks as well as a number of complaints from the applicant’s team and a Team Lead. Ms. Moynes records in this e-mail that the applicant was defensive when these issues were raised with her, and denied issues relating to her timeliness. This contemporaneous evidence in my view supports Ms. Moynes’ evidence that work performance issues were discussed with the applicant at the August 31, 2005 meeting, and contradicts the applicant’s evidence.
33As stated above, arising out of the August 31, 2005 meeting, Ms. Moynes attempted to institute a log book whereby starting the next day, the applicant was to sign into the log at the start of each day, write in the times that she left and returned from lunch and breaks, and then send Ms. Moynes an e-mail when she left. This log book was implemented by Ms. Moynes in consultation with Human Resources because there were issues regarding the time of the applicant’s arrival at work and how long she was taking for lunches and breaks, which were being disputed by the applicant. I heard evidence directly from Ms. Moynes that the applicant was not arriving for work in a timely manner in accordance with the expectations Ms. Moynes had set in July 2005 and that the applicant was taking longer than allowed for lunches and breaks. This evidence was supported by the evidence of Mr. Dilal, who testified that he observed the same thing when he attended the SDC office, and also is supported by an e-mail report to Ms. Moynes by one of the applicant’s colleagues.
34I appreciate that the applicant disputes this evidence regarding her timeliness and the length of her breaks and lunch. However, based upon all of the evidence before me, I am satisfied that there was a reasonable basis for the respondents’ concerns regarding the applicant’s timeliness and the length of her lunch and breaks. Given that this issue was being disputed by the applicant at the time, Ms. Moynes decided to try to implement a log in order to have an objective record regarding the applicant’s timeliness. I find that this response was not unreasonable, and does not provide any basis to support the applicant’s allegations of a violation of the Code.
35The applicant refused to comply with Ms. Moynes’ request unless the requirement to record times in a log was imposed on all other members of the team. As the evidence before me does not support that there were disputed issues of timeliness relating to other team members, I do not find that the applicant’s response to Ms. Moynes’ direction was reasonable. In any event, Ms. Moynes ultimately did not pursue the issue and did not require the applicant to sign a log.
36The applicant raised a couple of other discrete issues relating to this time period. She raised an issue about Ms. Moynes meeting with her in the previous manager’s old office in order to exercise authority over the applicant. In cross-examination, the applicant acknowledged that it would not have been appropriate to have such meetings in the open office area and that it was not unreasonable for these meetings to take place in a closed office. I see nothing in this to support any violation of the Code.
37The applicant also raised an issue that she was forced to make up her hours for sick leave while other team members were granted two sick days in a row. In her evidence at the hearing, the applicant related that another team member also experienced a similar problem. In her evidence, Ms. Moynes clarified that employees were required to make up time for medical appointments that were scheduled during work hours, and that this requirement applies to all employees to this day. Once again, I see nothing in this to support any violation of the Code.
38Finally, the applicant raises a general allegation that once Ms. Moynes resumed her role as Team Leader, Ms. Moynes made the rules more rigid, poisoned the applicant’s work environment and turned her colleagues against her. There is no doubt that Ms. Moynes made the rules more rigid once she became Team Leader, but that is not a basis to support a violation of the Code. Based on the evidence I have heard and reviewed above, I find that there was a concern in the workplace that the applicant had been the recipient of favouritism by the previous manager, which had resulted in the relaxing of the rules for her, particularly with regard to her start time. In my view, there was nothing inappropriate in Ms. Moynes attempting to address this concern about favouritism, whether real or perceived, by requiring the applicant to attend work at the same time as other members of the team. I further find that it was appropriate for Ms. Moynes to take steps to address ongoing issues of the applicant’s timeliness, based upon her own observations and what was reported to her. There is nothing in these actions by Ms. Moynes that supports any violation of the Code.
39With regard to the issue of Ms. Moynes creating a poisoned work environment and turning the applicant’s colleagues against her, the applicant was not consistent in her evidence regarding how she was treated by her colleagues in the work environment. On the one hand, during the period that Mr. Anderson was manager, the applicant states that she was the subject of gossip and rumours by her colleagues. On the other hand, she stated that she got along well with her colleagues and that Ms. Moynes turned them against her when she became Team Leader. Further, while the applicant gave evidence that she felt isolated and unsupported by her colleagues after Ms. Moynes became Team Leader, she was unable to provide any evidence that Ms. Moynes played a role in this.
40The evidence does not support that there was any significant change in how the applicant was treated or regarded by her peers following Ms. Moynes becoming Team Leader. Rather, the evidence from the review conducted by Ms. Pundzias reveals that at least some of the applicant’s colleagues felt that she was receiving favouritism from Mr. Anderson and that she was the source of problems and tensions within the group. E-mail sent to Ms. Moynes by the applicant’s colleagues during the period when Ms. Moynes was Team Leader confirms that they continued to regard her as feeling that she was above the rules and as a source of problems in the group. I find that any isolation or lack of support that the applicant felt from her colleagues is not attributable to Ms. Moynes or any ground protected under the Code, but rather from her colleagues’ perception that she was being treated with favouritism by the former manager and that she continued to feel that she was not subject to the same rules and requirements as the other members of the team.
Allegations regarding Racial Comments
41The applicant alleges that in about 2003, when they were out smoking with colleagues, Ms. Moynes made reference to the applicant having a new car and said, “I am a Canadian and I am driving an old Toyota, and you are an immigrant driving a new car”. The applicant states that the tone of this comment was like Ms. Moynes was offended, and that she deserved better and the applicant was taking her rights. The applicant states that this is why she replied, “I am a Canadian too, I live in this country and I pay taxes”. The applicant states that there were three other people present, and she identified two of these individuals.
42Ms. Moynes has no recollection of any such discussion, and specifically denies making any comment about the applicant being an immigrant. Ms. Moynes does recall an occasion in late 2004 when she was driven to a meeting by the applicant and became aware that the applicant was driving a new car, but states that there was no discussion of the applicant being an immigrant on this occasion. Prior to this occasion in late 2004, Ms. Moynes states that she was not aware that the applicant was driving a new vehicle.
43I have several concerns about this allegation. First, it relates to a time that is two years prior to the filing of the human rights complaint by the applicant. The complaint itself does not contain any particulars as to when this comment was alleged to have been made, where or in what context, nor does it identify that other people were present and who they were. These details were only forthcoming in the applicant’s evidence at the hearing, some seven years after the comment is alleged to have been made.
44Second, the applicant identified at least two of the three other people who were present when this comment was made, but neither of these individuals were called by the applicant to give evidence before me. While it might equally be said that the respondents didn’t call these individuals as witnesses either, I note again that information that the comment was made in front of others and who at least two of these individuals were was only forthcoming at the hearing.
45Third, the applicant states that when she met with Ms. Pundzias on November 10, 2004, she said something to the effect that she felt that she was being discriminated against because of her race, although she doesn’t recall whether she used those specific words, and she thinks she told Ms. Pundzias about the comment about her car and she told Ms. Pundzias that Ms. Moynes “doesn’t like immigrants, period”. Ms. Pundzias was very clear in her evidence that the applicant did not raise any allegation of racial discrimination at this meeting, that she did not tell her about any comment Ms. Moynes is alleged to have made about her car, and that she did not say anything about Ms. Moynes’ attitude towards immigrants. Ms. Pundzias’ evidence in this regard is supported by her contemporaneous notes, which do not include any reference to these matters.
46As previously stated, I found Ms. Pundzias to be a very credible witness. She had been a Human Resources Leader for Honeywell for about two years at the time, and had previously been employed as a Human Resources Manager at a multi-national company for some 12 years prior to that. It is inconceivable to me that the applicant could have raised an allegation of racial discrimination, a derogatory comment about her as an immigrant, or even a general statement about Ms. Moynes’ attitude towards immigrants without Ms. Pundzias having taken note of it. Accordingly, I do not accept the applicant’s evidence that she raised these matters with Ms. Pundzias.
47In the end, I find that I do not have sufficient reliable evidence upon which I properly can make a finding that Ms. Moynes made the comment as alleged by the applicant, and I decline to make such a finding.
48The applicant also raises a comment that Ms. Moynes made about whether her children were having problems at school as a result of the terrorist attack on 9/11. While the applicant initially testified that she thought this comment was made around May or June 2005, subsequent evidence made it clear that a comment of this nature was made at the performance review meeting on August 31, 2005.
49The applicant’s evidence is that Ms. Moynes asked whether her son was having problems at his school since 9/11 and said that children were having lots of problems since 9/11. The applicant states that when she replied that her son was born here and had been doing quite well at school, Ms. Moynes said, “what about his skin colour?” The applicant states that she replied, “what do you mean?” and Ms. Moynes responded, “you know what I mean”, to which the applicant replied, “no, I don’t”.
50Ms. Moynes’ version of this discussion is that, in the context of the performance review meeting, the applicant said that she was very stressed out, to which Ms. Moynes responded by asking why the applicant didn’t go on vacation. Ms. Moynes states that the applicant said that she wanted to go to the States but might have problems, to which Ms. Moynes asked why, and the applicant said because of the colour of her skin. Ms. Moynes states that she didn’t catch on and asked what the applicant meant, to which the applicant responded that she is Iranian. Ms. Moynes states that this was the first that she knew of this. Ms. Moynes states that this was when she asked whether the applicant’s son had problems at school since 9/11, as she was aware of another employee, who is Jordanian, whose children had experienced such problems. Ms. Moynes states that the applicant said, no, that her son was born here, and that was it.
51Ms. Moynes’ version of this conversation is disputed by the applicant. The applicant acknowledges that Ms. Moynes’ question about her son was asked in the context of another employee whose children had experienced problems at school since 9/11. However, the applicant states that she did not have any discussion with Ms. Moynes about traveling to the States or having problem because of her skin colour. The applicant also denies saying to Ms. Moynes that she is Iranian at this meeting, which the applicant states was already known to Ms. Moynes. In her reply evidence, the applicant stated that she said that her son was born here and doesn’t have an accent, to which Ms. Moynes replied that she wasn’t talking about his accent, she was talking about his skin colour.
52The applicant describes this in her complaint as “the most disgusting incident of racial harassment”. I do not see it that way. I agree with the comments of the British Columbia Human Rights Tribunal that human rights legislation was not intended to prevent or prohibit normal social conversation about matters that touch upon a prohibited ground of discrimination: see Mbaruk v. Surrey School District No. 36, [1996] B.C.C.H.R.D. No. 50 at para. 59.
53In the instant case, there is common ground that there was discussion about the impact of the events of 9/11 on the applicant’s son, that this was raised by Ms. Moynes in the context of another employee whose children had experienced problems at school, and that negative experiences could be connected to a person’s skin colour. I do not see anything demeaning or degrading to the applicant about this discussion. Rather, based upon her knowledge of an experience of another employee, I see Ms. Moynes raising a question out of concern and empathy for the applicant. I do not find that there is anything discriminatory or harassing about this discussion.
54Nor do I find any indication arising from this discussion of a discriminatory animus on Ms. Moynes’ part that reasonably can be regarded as circumstantial evidence to support that Ms. Moynes’ other actions relating to the applicant’s employment were related to the applicant’s race, ethnic origin, place of origin or colour. Rather, as reviewed at length above, I see Ms. Moynes’ actions as being the result of her attempt to address the perception of favouritism towards the applicant by the previous manager and to address timeliness and work performance issues that were either observed or reported to her.
55Accordingly, I find that there is no basis in the comment about 9/11 to support a finding of any violation of the Code.
Allegations re PIP and Termination
56Sometime in late August or early September 2005, a decision was made to put the applicant on a Performance Improvement Plan (“PIP”). The evidence indicates that in late August 2005, Ms. Moynes discussed with the interim manager, Raj Dilal, work performance issues that were being experienced with the applicant. By this time, there was documentation to support that there were ongoing issues regarding the applicant’s timeliness and the length of her breaks and lunches and issues raised by her work colleagues that she was not pulling her weight on the team. Also, at around this time, there was an issue regarding the applicant’s refusal to comply with Ms. Moynes’ direction to sign in and out of a log to monitor the timeliness issue.
57A PIP was prepared in consultation with Human Resources. The PIP contains a brief review of the work performance issues and sets out certain expectations for the applicant. These expectations were: (1) that the applicant was to start each day at 8:30 a.m. and leave at 5:00 p.m. (if she took a half-hour lunch break) or at 5:30 p.m. (if she took an hour); (2) that she was to reduce the number of errors in her work by not making assumptions, and instead she was to ask before starting a project if she was in doubt; (3) that she was to manage her time more efficiently; and (4) that she was to work as a team member and not as an individual. In cross-examination, the applicant conceded that these were reasonable expectations.
58The PIP provided that it would run for 90 days and that the applicant’s failure to meet these expectations may have potentially severe consequences, up to and including the termination of her employment. The PIP also provided for bi-weekly meetings to discuss the applicant’s status regarding completion of the plan.
59The PIP was presented to the applicant by Ms. Moynes and Mr. Dilal at a meeting on September 12, 2005. The applicant states that she demanded to know the names of individuals who had made complaints about her work, and that Mr. Dilal refused to provide her with these names. There is no dispute that the applicant refused to sign the PIP at this meeting, and asked what would happen if she refused to sign. The applicant’s evidence is that she was told by Mr. Dilal either to sign the plan or to go to Human Resources to get “papers”. The applicant’s evidence in chief is that she did not understand what Mr. Dilal meant by “papers” and didn’t understand him to be referring to termination papers. The evidence of Mr. Dilal and Ms. Moynes is that the applicant was encouraged to think things over, but that it would become a Human Resources issue if the applicant refused to sign.
60The applicant states that she raised Ms. Moynes’ comment about 9/11 at this meeting, which is corroborated by Ms. Moynes. Mr. Dilal does not recall this. In any event, it is clear that there was no further discussion of the 9/11 comment at this meeting, as Mr. Dilal wanted to keep the meeting focused on the PIP.
61In her evidence-in-chief, the applicant testified that she approached Mr. Birmann on the same day as the PIP meeting, and that he was the one who initiated the discussion about termination. However, on cross-examination, the applicant was asked whether she agreed with the content of the second paragraph of the termination letter dated September 14, 2005, and she stated that she did. This paragraph, consistent with Mr. Birmann’s evidence at the hearing, expressly states that the applicant approached Mr. Birmann on the day after the PIP meeting and asked for a termination letter. Accordingly, I find that it was the applicant herself who requested termination because she was unwilling to sign the PIP. The applicant’s employment with Honeywell was terminated effective September 14, 2005.
62The applicant states that she refused to sign the PIP because if she did, she would be admitting the contents of the plan and acknowledging that she had work performance issues, which she disputes. That is not, in fact, what the PIP says. Rather, by signing the PIP, the applicant was only acknowledging that she had received a copy of the document.
63The applicant also states that she refused to sign the PIP because it was her right to know the names of the individuals who had complained about her work performance. It is beyond my jurisdiction under the Code to comment upon whether any such “right” exists generally. But there is no such right under the Code. The rights protected under the Code in respect of employment include the right to be free from discrimination and harassment on the basis of specified protected grounds. In this instance, I already have found that there was a reasonable basis for the respondents to take steps to address what they regarded as work performance issues with the applicant, and the evidence does not support that any of the grounds under the Code alleged by the applicant in her complaint was a factor in these actions by the respondents. The implementation of the PIP was merely a further step taken by the respondents in their efforts to address work performance issues, and does not in these circumstances constitute discrimination or harassment contrary to the Code.
64The applicant further takes the position that she refused to sign the PIP because she believed that she was being set up for termination. I accept the respondents’ evidence that the PIP is not intended to lead inexorably to termination of an employee, but instead is intended to raise and address work performance issues. The respondents’ evidence is that while many employees who are put on a PIP ultimately end up being terminated, there are a significant number who improve their performance and continue as productive employees. Whether or not that would have been the case with the applicant was pre-empted by her decision to refuse to sign the PIP and to request her own termination instead. In any event, the evidence does not support that any of the grounds alleged by the applicant under the Code was a factor in the respondents’ decision to implement the PIP or to terminate the applicant’s employment.
Allegations regarding Reports to Management
65The applicant alleges that she reported various issues to Honeywell management, and that they failed to take appropriate steps to respond to her concerns.
66There is no doubt that, under the Code, management has an obligation to take appropriate steps to address allegations of discrimination or harassment on a protected ground that are brought to management’s attention. It also has been held by this Tribunal that this obligation applies even if the allegations ultimately turn out to be unsupported. However, in order for this management obligation to apply, there must be evidence to support that an issue of discrimination or harassment under the Code was actually brought to management’s attention. This does not necessarily require an employee to use the terms “discrimination” or “harassment”, but management must be aware of circumstances from which they reasonably ought to know that a right under the Code is at issue.
67The applicant first alleges that she brought her concerns to the attention of Ms. Pundzias. For the reasons already stated above, I have preferred Ms. Pundzias’ evidence regarding what was raised with her by the applicant at the November 10, 2004 meeting. Ms. Pundzias’ evidence is that the applicant did not raise any allegation of racial discrimination, or regarding comments about or attitudes toward immigrants. Ms. Pundzias’ evidence also is that while the applicant expressed concern over gossip about her being Mr. Anderson’s favourite, she did not raise any allegations over gossip or rumours about her having an affair with Mr. Anderson or about any sexually-related comments. On the basis of this evidence, which I accept and rely upon, I find that as a result of the November 10, 2004 meeting, Honeywell management did not have any reasonable basis to understand that the applicant was alleging a violation of her rights under the Code.
68The applicant next alleges that she brought her concerns to the attention of Mr. Birmann. There is no dispute that in early July 2005, the applicant raised an issue with Mr. Birmann about having been sent a job advertisement by Ms. Moynes. The applicant’s evidence is that she also told Mr. Birmann that she was under a lot of stress and that she had issues with Ms. Moynes. The applicant’s evidence was that she did not say to Mr. Birmann that she felt she was being discriminated against or harassed because of any ground under the Code. Once again, on the basis of this evidence, I find that Honeywell management did not have any reasonable basis to understand that the applicant was alleging a violation of her rights under the Code.
69Finally, the applicant alleges that she raised concerns with Mr. Dilal at the September 12, 2005 PIP meeting. As previously discussed, I have found that at this meeting, the applicant did raise the comment that Ms. Moynes made about her son and 9/11, and the applicant states that she expressly made mention of Ms. Moynes’ comment about skin colour. Once again, however, the applicant’s evidence was inconsistent about what she said at this meeting. When I questioned her in chief, she initially said that Mr. Dilal didn’t give her a chance to talk about discrimination. However, a short time thereafter, the applicant stated that she did say that she had experienced discrimination because of her race and skin colour. The applicant also testified that she said that Ms. Moynes would hear from her and that she was going to retain a lawyer to follow up. While Ms. Moynes acknowledges that the applicant raised the 9/11 comment at this meeting, she denies that the applicant said that she had experienced discrimination because of her race or skin colour or that she was going to retain a lawyer and Ms. Moynes would hear from her.
70I find that while the applicant did raise the 9/11 comment, she did not expressly state that she was being discriminated against because of her race and skin colour. I accept Mr. Dilal’s evidence that if the word “discrimination” had been used, it would have triggered some response from him, if only to notify Human Resources that such an allegation had been raised. I also did not find the applicant’s evidence to be reliable on this point, due to the inconsistency in the evidence she gave about what was said at the meeting and about what transpired after the meeting.
71While the applicant did make Honeywell management aware of the 9/11 comment, I find that in the context in which this information was shared, namely at a meeting to implement a performance improvement plan where the applicant’s work performance was at issue, it is not reasonable for Mr. Dilal (or Ms. Moynes for that matter) to understand that the applicant was raising an allegation of discrimination or harassment in violation of the Code, as opposed to providing information that was distracting attention away from the work performance issues they were there to discuss. As a result, I find that no issue of discrimination or harassment under the Code was raised at this meeting with sufficient clarity to trigger management’s obligation to respond.
72For all of these reasons, the Application is dismissed.
Dated at Toronto, this 25th day of October, 2010.
“Signed by”
Mark Hart
Vice-chair