Crystal Di Mario v. Claire’s Canada Corporation and Jennifer Boden, 2010 HRTO 306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Crystal Di Mario

Applicant

-and-

Claire’s Canada Corporation and Jennifer Boden

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 9, 2010

Citation: 2010 HRTO 306

Indexed as: Di Mario v. Claire’s Canada

APPEARANCES BY

Crystal Di Mario, Applicant ) Bradley Troup, Counsel

Claire’s Canada Corporation and ) Sven Poysa, Counsel

Jennifer Boden, Respondents )

1The applicant filed a transitional Application on March 24, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging that the respondents discriminated against her with respect to employment on the basis of sex (pregnancy) and disability.

2A Hearing was held on February 3, 2010.

EVIDENCE

3The applicant was hired by the corporate respondent in August 2000. She progressed to the position of store manager in April 2004.

4In January 2007 the applicant advised her district manager, Jennifer Boden that she was pregnant. Ms. Boden promptly notified human resources that the applicant would be requiring a leave of absence around September 2007. By May 2007 the applicant began experiencing severe back pain. Her treating physician advised that she take 15 to 20 minute seated breaks every two hours. She provided this recommendation to Ms. Boden in late May 2007, either May 24 or May 31, 2007.

5The medical note was sent to the Human Resources Benefits department in Illinois where all decisions with respect to accommodation were made. An employee from the benefits department promptly contacted the applicant to advise that the requested accommodation would be accepted and that the sit down breaks should be taken in the store. The applicant testified that this call surprised her as she had assumed that it was understood that she would continue working while taking sit down breaks in the store.

6On June 8, 2007 the applicant’s employment was terminated. The respondents allege that her employment was terminated for cause. The applicant alleges that her pregnancy and need for accommodation played a role in the decision to terminate her employment.

7The applicant points to her long record of service, her recent positive performance evaluation, the timing between the request for accommodation and the dismissal, and the alleged trivial nature of the infractions as indications of discrimination.

8The respondents’ point to the applicant’s history of non-compliance with company policies and the culminating incidents in June 2007 as the basis for the dismissal.

9As store manager, the applicant was responsible for managing the day-to day operations of the store, supervising staff and assisting with sales and cashier functions as required.

10The applicant had been given a disciplinary notice in September 2006 regarding a falsification of records. The applicant was scheduled to work at 9.00 a.m. She manually adjusted the time clock at 9.46 to indicate that she had arrived at 9.00 a.m. Upon learning of this violation of company policy the corporate respondent issued a final written warning. Ms. Boden testified that this was considered a serious violation of company policy which could have resulted in termination. Instead, it resulted in a warning that any further violation of policy would result in immediate dismissal.

11The applicant did not provide any explanation of the above breach of policy at the time, but rather expressed appreciation for the second chance. At the hearing the applicant explained that the change to the time clock was as a result of the fact that she had in fact arrived at 9.00 but had forgotten to punch in. However, she did not provide this explanation to the respondents any time prior to the termination.

12On March 23, 2007 the applicant’s performance appraisal was conducted and she was given a rating of 53.8. The “standard” rating was between 50 to 70, which indicated that the applicant fell within the low range of satisfactory. She received several unsatisfactory ratings, including one for compliance with corporate policy and was told that this low rating was due to the September 2006 incident. Thus, the respondents had given the applicant notice that the September “final warning” was still in play. The applicant wrote on her evaluation she indicated to pursue a “fresh start,” which indicates to me that she understood that her prior breach of policy was still being considered.

13Ms. Boden testified that immediately following the September 2006 warning the applicant demonstrated significant improvement in complying with company policy. However, by May 2007 the applicant was no longer as diligent. In May 2007 some employees at the applicant’s store called Ms. Boden and complained that the applicant was often not arriving at work in a timely fashion. Ms. Boden was unable to immediately investigate these complaints as the applicant had not submitted her time sheets as promptly as she should have.

14When Ms. Boden did receive the time sheets, she was able to verify that the applicant had arrived at work beyond the scheduled start time virtually every day in late May and June 2007. The applicant explained that when she was late, she made up the time at the end of the shift or the next shift, and often worked longer than the 40 hours for which she was paid. She understood that other managers did this as well and that the District Manager was aware of her practice. Whatever the applicant understood, Ms. Boden’s evidence was clear that this form of timekeeping was not in fact acceptable or known to the respondent.

15On June 2, 2007 the applicant left the store in the sole charge of a part-time sales associate from 12:13 until 1:56 p.m. A colleague reported this to Ms. Boden who was able to confirm the absence by the register receipts.

16Ms. Boden testified that the applicant was terminated because of chronic tardiness and breach of store policy for leaving a sales associate alone in the store in addition to the September 2006 breach of policy.

17The applicant agreed that she had been absent from the store for the above period but claimed that she had been attending at the bank on store business and then using the washroom. She also testified that she had frequently done this in the past and she understood that this was acceptable. Further, the part-time associate left in charge was a trusted employee, who had at one time her own set of keys permitting her to leave and enter the store unsupervised.

18I find it not credible that visiting the bank and the washroom would have required almost one hour and 45 minutes. In any event, the applicant had been advised that rather than leave the store in charge of a sales associate (a firing offence) she was entitled to ask the store manager of the other store in the same mall to do the banking for her. The applicant testified that she was not “comfortable” asking another store manger to take charge of her receipts.

19The corporate respondent’s policy prohibited a store manager from leaving a store in the sole charge of a sales associate. A store manager, an assistant manager or a “key holder” must be present in a store at all times because there are important retail functions that only they can perform. Violation of this policy was considered cause for termination.

ANALYSIS AND DECISION

20I am not satisfied that the applicant has established on a balance of probabilities that the respondents terminated her employment for any reason related to her pregnancy.

21The respondent is a sophisticated operation with retail stores in Ontario from Niagara Falls to Windsor. They employ approximately 8500 employees, 98% of whom are female. At any time, on average 18 employees are on maternity leave and 50% of pregnant employees have requested accommodations. This corporate employer is used to dealing with claims for accommodation on the basis of pregnancy.

22I agree with the respondents that the request for accommodation made by the applicant (to have seated breaks every two hours, in the store, while working) was such a minimal form of accommodation that it would not have phased the respondent and that it defies common sense that they would have terminated a long term employee for making such a request or for intending to take a maternity leave.

23Indeed the evidence was not disputed that the accommodation was swiftly confirmed. I do not accept the applicant’s characterization of the call from the US benefits office confirming the accommodation was somehow odd.

24Apart from the coincidence of the request for accommodation (either May 24 or 31) and the termination (June 8) there is no evidence to infer that the respondent’s actions were influenced by the applicant’s pregnancy or need for accommodation.

25On the other hand, the evidence of the applicant’s breach of store policies was very compelling.

26I note that the September 2006 discipline was specifically referred to in the March 2007 performance appraisal, an indication that the corporate respondent still considered itself entitled to discharge the applicant for future breaches of policies. I also find that the applicant understood the importance of complying with store policies, by her written comments indicating that she intended a “fresh start”.

27The applicant did not deny that she had been tardy virtually every day over two weeks. Ms. Boden’s evidence that this is a serious problem is consistent with the respondents’ position that in order for a store manager to effectively enforce timeliness in sales associates and other employees, the store manager should demonstrate timeliness.

28The applicant’s evidence that she frequently left the store in sole possession of the sales associate and that she understood that the District Manager was aware of this practice and had not objected to it prior to June 2007 is not credible. The uncontradicted evidence was that sales associates had no authority to provide gift vouchers, or process returns or exchanges. Nor did they have keys to the store. The express corporate policy was that leaving a sales associate in a store alone was cause for dismissal. Ms. Boden’s uncontradicted testimony was that at least one other employee in her area had been terminated for violation of this policy and the affidavit evidence from the US head office was that many employees had been terminated for violation of this policy.

29My authority does not extend to determining whether the corporate respondents’ policies are wise or effective. It is limited to determining whether they were applied differentially to the applicant because of her pregnancy. I find that they were not.

30The applicant pointed to the fact that Ms. Boden was not the ultimate decision-maker with respect to her dismissal and the failure to call the US Human Resources Director who made the decision should attract an adverse inference. In some cases, the failure to call the person who actually made the decision may be problematic, but in this case, the evidence supporting the basis for the decision were sufficiently compelling to make the Director’s evidence unnecessary.

31For the above reasons, I am not satisfied that the applicant has established on a balance of probabilities that her pregnancy played any role in the decision to terminate her employment.

32The Application is dismissed.