Terry Gregory v. The Corporation of the City of Cambridge, 2010 HRTO 388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Gregory

Applicant

-and-

The Corporation of the City of Cambridge

Respondent

-and-

Jason Reeve

Intervenor

decision

Adjudicator: Kaye Joachim

Date: February 19, 2010

Citation: 2010 HRTO 388

Indexed as: Gregory v. Cambridge (City)

APPEARANCES BY

Terry Gregory, Applicant ) Andrew F. Camman,

) Counsel

The Corporation of the City of Cambridge, ) David I. Wakely,

Respondent ) Counsel )

Jason Reeve, Intervenor, ) On his own behalf

1This is an Application filed on June 23, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The hearing in this matter was held on February 5, 2010.

2The applicant filed a complaint on September 5, 2005 alleging discrimination in employment on the basis of age with respect to a competition for a position of Arena Manager which was posted in June 2005. At that time he was 49 years old and had been employed with the respondent, City of Cambridge (the “City”) for 26 years. For the previous 17 years he had been working as the lead hand in the Hepeler Arena.

3The City operates community services, parks, recreational centres, halls and arenas in the City of Cambridge. The respondent, David Brisson was employed by the City as the Arena Manager at the time of the complaint but was confirmed to the position of Director of Arenas and Halls effective September 1, 2005. The respondent, James King was employed as the Commissioner of Community Services. The respondent, George Vandermey was employed by the City as Director of Human Resources.

4The position of Arena Manager is a non-unionized position. The City’s internal manual on hiring sets out the criteria for hiring:

Qualifications, ability and/or experience shall be the major factors in determining the successful candidates; however, if qualifications and ability are equal, consideration must be given to length of service with the Corporation.

5The Arena Manager position was posted both internally and externally. Four internal candidates and three external candidates were invited to an interview. The successful candidate was Jason Reeves. The interview panel unanimously concluded that Mr. Reeves was the most qualified, having, in addition to lead hand experience, a higher level of education and numerous professional development courses related to business and management.

6When the applicant raised his concern about not being successful in the position, Mr. Brisson explained that the successful candidate’s qualifications would best support the rebuilding and improvement in the Arena.

7The applicant asserts that the decision not to award him the Manager position was due to his age. In support of this assertion, he relies upon the following: he was 49 years old at the time of the 2005 competition; the successful candidate was 17 years younger than him; he was qualified for the position, as he had been the acting manager in the manager’s absence for a year and a half; he has been trained extensively by the previous arena manager and had been doing managerial tasks for the previous year and half prior to the competition; the past practice was to hire the senior lead hand into the position of arena manager. He also asserts that, had he been successful for the posting, he would have been eligible for a payout of approximately $32,400 in sick time accumulation and that this was a factor in their decision-making. He also suspects that the reference to “rebuilding” the arena reflects a concern that an older worker may be around long enough to justify hiring. He believes that the City was concerned that too many members of senior management in the arena area were close to or at retirement age, which would cause a problem for continuity. At that time he notes that the Superintendent was 50, and two other Arena Managers were 53 and 46. He asserts that Jim King specifically stated that it was good management to consider the short term and long term prospects of the potential candidates.

8There is no question that the applicant was qualified for the position and a person 17 years younger than him was awarded the position. This is sufficient to establish a prima facie case of discrimination that calls for the respondents to establish a rationale explanation.

9The respondents’ rational explanation is that the successful candidate was more qualified than the applicant, based on their educational qualifications and answers to the interview questions.

10Both applicants had experience working as a lead hand in arenas in the City. The applicant had 17 years experience as a lead hand and the successful applicant, Jason Reeve, had 3.5 years experience. Both had refrigeration certification and ice marking certification. Both applicants had First Aid and CPR training, and WHIMIS Training, although the applicant did not specifically mention this training on his resume. I accept that at least one member of the interview team, David Brisson, would have known of this training, as it was provided on the job and was required by the position of lead hand. Both applicants held a high school diploma and the applicant advised during the interview that he had begun but not completed a year at university.

11Jason Reeve had obtained an Ontario Management Development Program Business Skills Certificate from Conestoga College in 2005, which certificate included courses in Human Relations, Communications, and Finance & Budgeting, management Skills, Human Resources Selection and Managing Workgroup Activity. The interview team concluded that this educational training raised Mr. Reeve above the other candidates including the applicant. In addition, Mr. Brisson who was on the interview team testified that Mr. Reeve’s answers on the interview questions, which were mostly designed to draw upon past experience, were more fulsome and therefore “better.”

12I accept that Mr. Reeves appears to have greater educational qualifications, whereas the applicant had significantly greater experience in the position, including having stepped in frequently as acting Arena Manager (some duties) over a period of one and a half years.

13Based on a comparison of the two resumes alone, I myself would not have concluded that Mr. Reeves was significantly more qualified; however, that is not the point. The evidence established that the interview team considered the managerial courses highly significant and raised Mr. Reeves above the other candidates including the applicant.

14I accept that the respondents have established a rational non-discriminatory explanation why the older candidate was not successful.

15The evidentiary onus shifts back to the applicant to establish that this explanation is pretextual. There are circumstantial factors that point both for and against the prima facie case of discrimination.

16The applicant claims that the past practice has been to hire the senior lead hand into the position of Arena Manager. In his 26 years of employment there had been five competitions for arena manager and in every case, he testified, the most senior lead hand had been successful in winning the competition. The respondents assert that the policy has always been to hire the most qualified applicant and that in a few cases the most qualified and the most senior lead hand have been one and the same person.

17Mr. Vandermey, the Director of Human Resources, testified with respect to the City’s hiring practices with respect to non-union positions, and specifically, the first level of management position immediately outside the union, such as the Arena Management. His evidence established that, since 2001, 72 non-union hiring competitions had been held. In 59 of these, there were internal candidates. In 43 of these competitions, the most senior internal candidate was not awarded the position. Of the 16 candidates who did have the longest service, they were also the most qualified and there was no need to resort to the length of service tie breaker.

18Eleven of the competitions since 2001 were first level managerial positions, such as Arena Manager. In eight of the 11 competitions, the candidate with the longest service was not successful.

19With respect to the position of Arena Manager in particular, the respondents deny that it was common practice for the senior lead hand to become Arena Manager. While the senior lead hand had been successful in some past competitions, it was qualifications and not length of service that was the deciding factor. The respondents point to the circumstance of Mr. Schwanz winning an arena competition over another more senior lead hand.

20The applicant’s response to this statistical evidence is that whatever is done outside the arena, there is a specific practice in the arenas to award the arena manager to the most senior lead hand. While Mr. Schwanz had less seniority with the City at the time he was made arena manager, he had the most seniority within the arenas department.

21The respondents further rely upon the fact that the average age of the successful candidates hiring in all 2005 non-unionized hiring processes was 43. Four of the hires that year were as old as or older than the applicant.

22In my view, the evidence regarding non-union hiring competitions establishes that the respondents almost invariably found one candidate more qualified than the others and rarely if ever had resort to the length of service tiebreaker. In the majority of cases, the most senior internal candidate was not the successful candidate.

23Although the pattern of senior lead hand becoming Arena Manager was stronger than the general non-union hiring pattern, I am satisfied that the respondents genuinely assessed the applicants based on qualifications rather than length of service. It is not within my authority to determine if the respondents made the correct decision with respect to assessing the relative qualifications of the applicant and Mr. Reeve.

24There is the possibility that, unlike other areas of the City, the management in the area of Arena management were at or nearing retirement age and that the interview panel was influenced, consciously or unconsciously by a desire to have managers at varying stages of development. The strongest evidence supporting this theory is that Mr. Brisson advised the applicant after the competition that the City was “rebuilding”.

25The applicant interpreted the term “rebuilding” as indicating that the City was looking for younger persons, and was concerned about succession planning as many managers in Arena management were in their late 40’s or early 50’s.

26I agree that Mr. Brisson’s explanation for the term rebuilding was weak. He stated that he simply meant that the City was now looking for the most qualified person. There is nothing in the term “rebuilding” that would make that explanation sensible.

27Nonetheless, I find that the preponderance of evidence does not support the theory that those qualifications of Mr. Reeve were a pretext for the City to prefer a younger manager for the purpose of rebuilding a younger management team and/or succession planning in Arena management.

28This theory was put to the parties in cross examination and I am satisfied that there was no concern by the interview panel about the age grouping of the management team in the Arena area. The circumstantial evidence also does not support this theory, as two of the current arena managers being 43 and 49 do not indicate a serious concern about imminent retirement. At age 49, the applicant could have worked another 16 years before the “normal” age of retirement and as he himself agreed, he had no plans to retire at that age.

Adverse Effect Discrimination

29The applicant argued that the City’s emphasis on educational qualification over experience posed a barrier to older persons. He submitted that it is well known that older persons today tend to have fewer educational qualifications than younger persons and giving preference to education qualifications is a form of adverse effect discrimination.

30No expert evidence was called on this point and I am reluctant to accept such a stereotypical assumption. In any event, this general assumption is not relevant.

31Both the applicant and Mr. Reeve had high school education. The preference that the respondents agree they gave to Mr. Reeve related to the courses he took, well after high school, relating to management at the local college. Both the applicant and Mr. Reeve were equally capable of taking these courses on their own time. In fact, the applicant has, since losing the 2005 competition, obtained the same diploma as Mr. Reeve, taking somewhat different courses.

32Therefore, there is nothing in the applicant’s age that acted as a barrier to him taking these courses before the 2005 competition.

Miscellaneous Allegations

33The applicant made allegations that he was advised by Mr. Brisson that he could expect the position of Arena Manager and that he had not need to take any courses to prepare himself. He also asserts that he was denied the opportunity to take courses which might have improved his chances for the position and that Mr. Brisson gave better mentoring to Mr. Reeve. Those allegations are denied by Mr. Brisson.

34I do not need to resolve these discrepancies because I do not find that there is any evidence that the applicant’s age played any role in those events, if they occurred. The alleged comments and actions by Mr. Brisson would only be relevant to support a sustained theory of a conspiracy to prevent the applicant from becoming arena manager in any circumstance, because of his age. For the reasons set out above, I find that the City did not have any practice, policy or culture of giving preference to younger workers or disfavouring older workers.

35The applicant’s disappointment in not being appointed Arena Manager in 2005 is understandable. His perception that his age may have played a role in the decision is also reasonable, given his age, the younger age of the successful applicant, and his personal perception that the senior lead hand tended to get the position.

36Notwithstanding the reasonableness of his perception, I am satisfied that the evidence does not demonstrate age discrimination. The Application is dismissed.