Deopaul Chintaman v. Toronto District School Board, 2010 HRTO 2418

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deopaul Chintaman

Applicant

-and-

Toronto District School Board – Budget, Revenue and Financial Reporting – Business Services, Craig Snider, Lisa Kivlichan, and Ron Gumbley

Respondents

case Resolution Conference DECISION

Adjudicator: Ailsa Jane Wiggins

Date: December 7, 2010

Citation: 2010 HRTO 2418

Indexed as: Chintaman v. Toronto District School Board

AppearanceS BY

Deopaul Chintaman, Applicant ) Self-repesented

Toronto District School Board – )

Budget, Revenue and Financial Reporting – ) Glorie Alfred and

Business Services, ) Anthony Brown,

Craig Snider, Lisa Kivlichan and Ron Gumbley, ) Counsel

Respondents )

Introduction

1This Case Resolution Conference Decision deals with an Application filed on December 18, 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 original complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 28, 2007.

2The applicant self-identifies as a person of colour of Indo-Caribbean descent. When he filed his original complaint he had been employed by the respondent school board for over 15 years. He has held various positions but since January 2005 he has held the position of Analyst – Cash Receipts.

3The applicant alleged that he was subjected to unfair treatment and systemic barriers because of age, colour, ethnic origin, place of origin and race. The applicant alleged that he has been treated unfairly in 30 job competitions since 1992. The last job competition described in the original complaint occurred in February 2007.

4The respondents filed a Request for Order during Proceedings asking that all allegations relating to job competitions which occurred prior to June 28, 2006, one year prior to the date that the original complaint was filed with the Commission, should be dismissed on the basis that they are out of time.

5In an Interim Decision dated August 7, 2009, 2009 HRTO 1225, the Tribunal held that the respondents were only required to respond to the allegations in respect of the February 2007 job competition.

6The applicant also alleges that he was denied acting assignments and training opportunities. The applicant states in the complaint that although he has raised these issues with senior management of the respondent school board, they did not pay sufficient attention to these issues and the respondent school board failed to eliminate systemic barriers to promotion.

7The respondent school board is the largest school board in Canada and the sixth largest in North America. At the time of the February 2007 job competition, it employed about 30,000 people.

8There are three individual respondents. At the time of the original complaint Craig Snyder was Assistant Comptroller - Financial Reporting and Planning, Department of Business Services. Ron Gumbley has held the position of Senior Manager – Employee Support, Department of Employee Services, since November 2002. Lisa Kivlichan has been Manager - General Accounting, Department of Business Services, since February 2000. She is the applicant’s supervisor’s manager.

9The respondents deny the applicant's allegations that he has faced unfairness and barriers that prevented him from being promoted and assert that the applicant was not short listed for the February 2007 job competition because for the first round of short listing, candidates were required to have a professional accounting designation such as a CGA (Certified General Accountant) or CMA (Certified Management Accountant) and the applicant did not have a professional accounting designation.

10A three day Case Resolution Conference (CRC) was held on December 2 and 3, 2009 and January 15, 2010. In addition to the applicant I heard testimony from Sanjay Puri, who was Comptroller of Finance for the respondent school Board and who was on the interview panel, Craig Snider, one of the individual respondents and the person who made the decision to short list only those with professional accounting designations, Laura Blakely, the applicant’s supervisor, and Lisa Kivlichan, one of the individual respondents and the applicant’s supervisor’s supervisor. At the end of the second day of the CRC the parties agreed that it was not necessary for me to hear from the third individual respondent, Ron Gumbley or from the two other respondent school board employees who the respondents had initially intended to call as witnesses.

The February 2007 Job Competition

11The position that was the subject of the February 2007 job competition was that of Financial Reporting Officer. In the job posting the first item listed under “Qualifications” is

Post-secondary degree in related discipline such as Business Administration or Commerce and Finance and a 3^rd/4^th year enrolment in a professional accounting designation program (C.A., C.G.A.,C.M.A.) with four years progressively responsible experience in general accounting supervision, or an equivalent combination of education and experience.

12The February 2007 job competition was open to external candidates. Craig Snider testified that, to the surprise of the respondent school board, over 170 people applied for the position. He said that sixty-six candidates had accounting designations and as accounting skills were the most important requirement of the position, he used that as the first cut, shortlisting only those candidates with professional accounting designations.

13The applicant did not have a post secondary degree or a professional accounting designation.

14When the applicant discovered that the position had been filled, he contacted the respondent school board’s human rights office but did not file a complaint with them because he “didn’t think they’d do anything”. Also, although he was told he could talk to the chair of the interview panel who would answer any questions he had about the competition, he did not do so because he “didn’t think it would be helpful”.

15The applicant, whose current position is governed by a collective agreement, could not file a grievance regarding the February 2007 job competition because it was for a non-union position.

16The applicant testified that he believed that he was "more than qualified" for the position yet he also testified that he could do "over 80% of what is required" for the job. He believed that he had the equivalent of the accounting designations referred to in the job posting and that his experience prior to going to work for the respondent school board qualified him for the job. His prior experience consisted of supervisory accounting positions with organizations that he admitted had many fewer employees and much smaller budgets than the respondent school board. He also admitted to having no experience in the public sector.

17The applicant testified that he was not disputing that those who were shortlisted had better qualifications than he had, but rather that he had 80% of what was required to do the job. He said that the combination of his education and his experience should have been enough for him to be considered for the job.

18Mr. Snider described the successful candidate as a “visible minority”. She has a professional accounting designation and recent supervisory accounting experience. It has been approximately 19 years since the applicant has held a supervisory accounting position.

19The applicant believed that Mr. Snider designed the February 20007 job competition process to exclude him and that Mr. Snider took into account factors including the applicant’s age, colour, ethnic origin, place of origin and race. However, the applicant admitted in cross examination that he had no evidence, that he could not prove that he was discriminated against, only that he believed that he was.

Denial of Acting Assignments and Training Opportunities

20Although the applicant alleged in his complaint that he was denied acting assignments and training opportunities, he called no evidence to support these allegations.

Reprisal for filing Human Rights Complaint

21The applicant alleged that when the respondents became aware of his human rights complaints and his questioning of the February 2007 job competition process, they committed acts of reprisal against him. Those acts included suspending him and requiring him to produce a medical note for an absence.

22The applicant admitted that he decided that he was not going to “co-operate” with the respondent school board and that there were certain core duties of his current job which he considered menial and below him and which he decided to refuse to do. He was given warning letters and suspended for this behaviour. He spoke to his union, but he testified that the union said that there was nothing to grieve as those duties were part of his job.

23When asked in cross-examination how the respondent school board discriminated against him or reprised against him when he failed to perform core duties of his job, he responded that they were underutilizing him and preventing him from progressing. He testified that he believed that it was discriminatory because they knew he did not like his job. The applicant said he believed that underutilization was the same as discrimination. He did not see refusal to do his job as insubordination, but rather an attempt to advance his complaint.

24The applicant also testified that he felt he was being singled out when he was asked to bring in a doctor’s note after having been absent from work for only one day. He said that he had never been required to do so in the past. The respondent school board provided an excerpt from the collective agreement which indicates that medical certificates are required for absences of over three days but that the employer may require a medical certificate at any time. The applicant’s supervisor testified that the respondent school board was suspicious because after asking for a day off, which was granted but on an unpaid basis, the applicant called in sick. Under those circumstances she felt that the request for a medical certificate was warranted.

Decision

25I find that the applicant’s age, colour, ethnic origin, place of origin and race were not factors in the respondent school board’s decision not to short list him for the February 2007 job competition and that the respondents did not commit any acts of reprisal against him for filing his complaint.

26The applicant did not introduce any evidence to explain why he believed he had been discriminated against on the basis of age, colour, ethnic origin, place of origin and race. He simply thought that those factors had come into play when he was not shortlisted for the February 2007 job competition.

27There was no connection between the use of a professional accounting designation to short list candidates for the February 2007 job competition and the applicant’s age, colour, ethnic origin, place of origin and race. It was not done to exclude him or others, but simply as a first step to reduce the number of candidates.

28The evidence of the respondents that the candidates who were shortlisted were more suited to the position than those, including the applicant, who were not shortlisted, is borne out by their accounting qualifications. In contrast, the applicant, although he had started studying for his CGA, did not complete his studies. In addition, in comparison to the successful candidate, he did not have any recent supervisory accounting experience.

29I am satisfied that Mr. Snider did not select the applicant for the initial short list because there were sixty-six candidates whom Mr. Snider viewed as more qualified and suited for the position because of their accounting designations. I am also satisfied that the applicant’s age, colour, ethnic origin, place of origin and race were not factors in Mr. Snider’s decision not to short list him.

30The mere fact that the applicant was disciplined after making a human rights complaint is not enough to support a finding of reprisal. He admitted that he repeatedly refused to perform certain core functions of his job because he believed that they were menial and that he did not want to “co-operate” with the defendant school board. The respondent school board applied its usual progressive discipline procedure. The applicant was not treated differently than any other employee accused of misconduct. The fact that the applicant was dissatisfied with his job and disappointed that he had been unsuccessful in job competitions did not give him the right to refuse to do his current job. The respondent school board acted appropriately in disciplining him for his insubordination.

31The evidence does not support the applicant’s allegation that requiring a medical certificate was an act of reprisal for filing his complaint. The collective agreement gives the employer that right and considering the circumstances of his absence the employer’s decision to request one was reasonable.

ORDER

32The Application is dismissed.