David White v. Queen’s University at Kingston, 2010 HRTO 640

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David White

Applicant

-and-

Queen’s University at Kingston

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: March 25, 2010

Citation: 2010 HRTO 640

Indexed as: White v. Queen’s University

APPEARANCES

David White, Applicant ) On his own behalf

Queen’s University at Kingston, ) Andrea Risk, Counsel Respondent )

BACKGROUND

1The applicant filed an Application dated June 8, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of age when he applied unsuccessfully for a promotion. The respondent denies the allegations.

2A hearing into the matter was held on February 17, 2010 in Kingston. The applicant testified. The respondent called evidence from John Witjes and Margaret Goslin.

THE EVIDENCE

3The applicant began working for the respondent academic institution in January 2006. At the time, he was 59 years old. He was hired as a facilities supervisor in the Residence and Hospitality Services division within the University’s Physical Plant Services department.

4In early 2009, the applicant applied as an internal candidate for the position of assistant area manager within Physical Plant Services. Four internal candidates, including the applicant, applied for the promotion. The applicant was the sole internal candidate who was invited for an interview, which was conducted on January 26, 2009.

5The applicant was not selected for the position, and the respondent opened the competition to the public. The applicant was advised of this fact in an email dated January 29, 2010. A further set of interviews was conducted, and the position was offered to an outside candidate, who the respondent believed was most suitable for the job.

6The applicant was dissatisfied with the result of the hiring process. He believed that he was the most suitable candidate for the position, and that his age - he was 62 years old - was a factor in the respondent’s decision not to hire him. In correspondence dated February 10, 2009, the applicant wrote to Margaret Goslin, Employment Coordinator, objecting to the interview process. He described his feelings as “disappointed, angry and frustrated with the outcome.” He asked to know the reason he was not hired, stating: “If I had been bested in the interview process because there was a superior candidate I would be very disappointed but not angry or frustrated.”

7The applicant went on to outline his skills and experience in support of his view that he should have been the strongest candidate for the position, adding that his goal was not “to gain access to the opportunity denied me but to bring your attention to a process that, I believe, is seriously flawed.” At around this time, the applicant also contacted the internal Human Rights Office hoping to file an internal complaint, which proved unsuccessful.

8Meanwhile, Ms. Goslin forwarded the applicant’s letter to John Witjes, Operations and Plant Director of Physical Plant Services. Mr. Witjes testified that in 18 years with the respondent, he has hired over 50 people. He chaired the hiring committee, which consisted of two additional members, Gerry Plunkett and Aaron Ball, whom he consulted in replying to Ms. Goslin’s request for feedback on the decision with respect to Mr. White.

9In an email dated March 2, 2009, Mr. Witjes identified two key concerns with the applicant that led to the decision not to proceed with his application after the interview. First, he indicated that he and the other committee members were concerned that the applicant appeared to have a history of difficulties with authority and dealing with differences of opinion in his interactions with customers, co-workers and supervisors. Secondly, the committee found the applicant to lack enthusiasm with, or knowledge of, significant changes that would be implemented in the workplace, namely the greater use of “green” cleaning products and increasing use of computer technology. The applicant appeared to panel members to be more interested in the maintenance side of the department rather than the custodial side. The committee was seeking someone with demonstrated interest in custodial work.

10Mr. Witjes testified that age played no factor whatsoever in the committee’s decision not to proceed further with the applicant’s candidacy for the promotion. He stated that at the time he did not even know the applicant’s age; as a matter of practice, Human Resources does not share that information with hiring managers. Mr. Witjes further testified that, in response to this Application, he obtained age information from Human Resources that confirmed another area manager is 62 and a recently-hired manager is 59.

11Mr. Witjes further testified that the applicant was interviewed based on pre-set questions. Copies of the exact questions were not available as evidence because they apparently went missing shortly after the applicant’s interview. Mr. Witjes testified that the questions were prepared from a previous competition and would have been compiled prior to reviewing the resumes, before he knew he would be interviewing the applicant. In other words, the questions were designed objectively without any particular candidates in mind.

12During the interview, Mr. Witjes testified he began to notice a trend in the applicant’s employment history. He had gone through seven or eight “transitions” (changes in employment) and in each one, there appeared the applicant would have a disagreement with his employer, felt that the disagreement was insurmountable, and would leave his job. These were red flags for the committee.

13Ms. Goslin arranged to speak with the applicant about the feedback. In a telephone conversation on March 2, 2009, she read Mr. Witjes’ email to the applicant, who grew increasingly upset and argumentative. At the end of the conversation, Mr. White expressed concern that the real reason behind his unsuccessful candidacy was his “grey hair”. Ms. Goslin told the applicant “don’t go there” and explained she was doing him the favour of providing feedback to him. The applicant told her it was no favour, and Ms. Goslin apologized, clarifying that she was just doing what he had asked for, trying to help him understand the result. The applicant remained dissatisfied and ended the call.

POSITION OF THE PARTIES

14The applicant maintains that he was never seriously considered as a candidate for the position based on his age. In support of his firm conviction that he is the victim of age discrimination, the applicant acknowledges that his case rests on circumstantial evidence. He argues that the “smoking gun” evidence (the committee’s interview notes) was wilfully destroyed by Mr. Witjes in order to cover up the fact of overt age discrimination. The applicant questioned Mr. Witjes’ credibility, suggesting that he has a strong interest in covering up and justifying his discriminatory decision.

15The circumstantial evidence the applicant relies on can be summarized as follows:

• The interview notes “went missing”. The applicant doubts that the disappearance of the notes was accidental. He is certain that express reference to his age would be reflected in the committee members’ notes if the notes were produced.
• There is no reason other than age that adequately explains the decision not to hire the applicant.
• The applicant, an internal candidate, was more qualified for the position than the individual who was hired: a less experienced external candidate who is 30 years younger than the applicant.
• There was already an “older” manager in the department, Gerry Plunkett, who was also on the hiring committee. The respondent did not want to have two men in their 60s managing in the same department.
• There were differences in the questions posed of the internal and external candidates. The applicant’s answers were manipulated to conform to a pre-determined decision.

16The respondent’s position is that age was never a factor in the hiring process, whether intentionally or unconsciously. The hiring process need not have been perfect or even very good. The only question relevant to these proceedings is whether the process was discriminatory. The respondent asserts that the applicant has failed to establish a prima facie case of discrimination because there is evidence that an individual better qualified for the position succeeded in securing the job.

17The respondent also argues that the circumstantial evidence on which the applicant relies is either contested or does not necessary support the conclusions the applicant asserts. For instance, with respect to the applicant’s argument that there was already an older manager which caused the respondent not to seriously consider the applicant, the respondent points to the fact that a new manager, who is 59 years old, was also subsequently hired in the summer of 2009. If the respondent wanted to limit the number of older managers, it submits it does not follow that an individual close in age to the applicant was hired shortly after the events giving rise to this Application. This should, the respondent argues, help establish that there were factors other than age that caused the applicant’s bid for promotion to be unsuccessful.

18The respondent further relies on the fact that an advisor from Queen’s Human Rights was involved in the matter for a time, but declined to take any action on the applicant’s complaint. The respondent urges me to infer that the Human Rights Office determined that the applicant’s allegations were unfounded.

19Regarding the applicant’s allegation that Mr. Witjes deliberately destroyed his interview notes, the respondent points out that his evidence is that he lost them in January 2009 when, on short notice, he was promoted and was required to move offices. The respondent argues that the timing is critical: Mr. Witjes lost the notes prior to learning about the applicant’s complaint, contained in correspondence to Ms. Goslin dated February 10, 2009. Furthermore, the Application was not filed for another six months, and by that time, there was no hope of locating the notes.

20The respondent further points to the exchange the applicant had with Ms. Goslin as evidence that the committee’s concerns about the applicant’s attitude were well-founded. The respondent argues that the applicant seemed to view quitting a job as a valid response to a disagreement with a supervisor, and there appeared to be no recognition in his discussion with Ms. Goslin that the committee had a legitimate problem with this approach. The respondent’s evidence was that the applicant’s demonstrated attitude issues were the primary reason not to offer him the promotion.

ANALYSIS AND DECISION

21The Application relates to subsection 5(1) of the Code, which prohibits discrimination in employment, and states: “Every person has a right to equal treatment with respect to employment without discrimination because of… age.” The applicant bears the onus of establishing on a balance of probabilities that a violation of the Code has occurred. Accordingly, the issue that I am required to determine is whether the applicant has established that age was a factor in the respondent’s decision not offer him the position of assistant area manager.

22The test for establishing a prima facie case is whether there is sufficient evidence to establish that the applicant was a victim of discrimination on the basis of age in the absence of a response from the respondents. The case law is also clear that discrimination need only be one of the factors involved in a hiring decision for there to be a breach of the Code. In addition, it is unnecessary to prove that there was an intention to discriminate to support a finding that the Code has been violated: Nelson v. Lakehead University, 2008 HRTO 41, paras. 36-37.

Direct Evidence of Discrimination

23The applicant maintained that direct evidence of an intention to discriminate—i.e. the missing interview notes—were deliberately destroyed. On the evidence as a whole, including having assessed Mr. Witjes’ credibility, I am unable to accept the applicant’s theory. Not only did Mr. Witjes present his evidence in a coherent and straightforward manner, but the applicant’s allegation itself makes little sense. Why would the committee invite the applicant for a “courtesy interview”, knowing it had no intention of seriously considering him for the promotion, create a record of its discriminatory plans, and then deliberately destroy the record to cover its tracks? The respondent is a large and sophisticated employer with a robust human rights policy. Certainly if a senior manager such as Mr. Witjes sought to circumvent the prohibition on discrimination, he could have chosen a less elaborate route. I am satisfied that there is no evidence of direct discrimination, and that no such evidence was deliberately destroyed.

Circumstantial Evidence of Discrimination

24The applicant asked the Tribunal to draw an inference of discrimination based on circumstantial evidence. I adopt the following passage from the Canadian Human Rights Tribunal in Basi v. C.N.R. (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38482, commenting on the difficulty of establishing direct evidence of discrimination in race or colour cases, which I would extend also to cases of alleged age discrimination:

Discrimination on the grounds of race or colour are frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. In a case where direct evidence is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises.

25In the absence of direct evidence that age was a factor in the decision, the applicant sought to establish that he was a superior candidate for the position. He maintained throughout that there was incongruence between the specifications in the job advertisement and the qualifications of the successful candidate. He further argued there was a natural fit between his own qualifications and those advertised. I reviewed the relevant evidence, which included the job advertisement, the applicant’s qualifications (though he failed to produce a copy of his resume) and the successful candidate’s resume, as well as oral evidence addressing the issue of comparative qualifications for the specified job requirements.

26Qualification for the position encompassed not only credentials and experience, but also personal characteristics that were evaluated in the job interview. The respondent’s evidence established that the committee had legitimate concerns with the applicant’s suitability for a manager position. His responses in the interview gave rise to concerns that the applicant lacked the necessary interpersonal and conflict-resolution skills necessary to be an effective manager. He also appeared to be unenthusiastic about a shift to “green” products and resistant to technological innovations.

27It is not necessary for the respondent to demonstrate that it was correct in reaching its decision, only that it was reasonable. An unreasonable decision is likely to attract greater scrutiny for discrimination. In contrast, it is difficult to imagine circumstances in which a reasonable hiring decision would be found to be discriminatory absent direct evidence of discrimination.

28It is clear that the applicant was qualified for the position on paper. However, it is also clear that the successful candidate was qualified for the position. While the two candidates possessed different strengths and weaknesses, I cannot conclude on the evidence that the applicant was clearly the better candidate. The job posting listed “thorough knowledge of custodial practices and a working knowledge of construction methods, heating, ventilation, energy usage and conservation” as required experience. It also listed “special skills” being “leadership, communication, organization and analytical skills” as well as “several years experience in custodial or building maintenance in progressive supervisor and/or leadership positions in an industrial, construction or university environment”. Finally, “substantial, proven and demonstrated experience in a unionized environment” was required.

29The successful candidate had six years of management experience in a retail setting, overseeing a staff of 10-15 people, and being responsible for hiring, training, coaching and disciplining staff. The job she held prior to being hired by the respondent was as a manager directly supervising and scheduling unionized caretaking, custodial and casual workers in an academic institution setting. The evidence is that the committee was impressed with the fact that she had some experience in the custodial and maintenance field, combined with a unique record of management expertise in the retail sector. It was not unreasonable for the respondent to favour the successful candidate’s management experience and inter-personal skills, notwithstanding the applicant’s superior familiarity with the plant services environment.

"Fit" and Discrimination

30The evidence established that the committee felt the applicant would not be the right “fit” for the position. Although “fit” can at times be used to conceal discriminatory considerations, it is not necessarily so. See Sukhu v. Universal Energy, 2009 HRTO 1922 at para. 27. Determinations with respect to “fit” must use objective and non-discriminatory criteria, and assessments must be based on actual characteristics and qualities, not presumptions and stereotyping.

31There is no suggestion here that the respondent’s consideration of “fit” included improper factors. The respondent’s evidence established that the workplace is uniquely diverse, with workers of all ages. Indeed, the applicant was hired in the department when he was 59. The applicant’s allegation that the respondent decided that it already had “enough” older managers is unsubstantiated. The applicant remains employed with the respondent in a non-managerial position and by all accounts, he is a good performer. He was invited for an interview and, while his age was not known to the committee, his employment history of several decades would have been an obvious red flag had the committee been looking to avoid older candidates.

32The respondent’s concerns about the applicant were specific and particularized, not general and abstract. It was legitimate for the committee to be concerned about personal characteristics, such as attitude, respect for authority and openness to change, as long as those are not serving as a conduit for discriminatory considerations. There is no basis to conclude that the committee’s view of the applicant’s unsuitability for the position was based on stereotypes about his age. In respect of each concern, the respondent was capable of articulating specific comments and facts from the applicant’s work history and his answers to the questions in the interview to substantiate the conclusion drawn. Again, the conclusions about the applicant need not be correct; they only need be non-discriminatory. Where, as here, the respondent demonstrates that it drew reasonable conclusions, there can be no finding of circumstantial discrimination.

33Given that no evidence was admitted with respect to the internal investigation apparently conducted by the Queen’s Human Rights Office there is no basis for me to rely on their action or inaction as evidence of their conclusions regarding the applicant’s complaint. The substantive findings of internal investigations do not necessarily determine the issues before the Tribunal and in this case, where no evidence from that investigation was produced, I give no weight to the fact that the internal process did not find discrimination.

34Looking at all the evidence as a whole and on the balance of probabilities, I conclude that age was not a factor in the respondent’s decision not to promote the applicant. The Application is dismissed.