HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sergey Zholudev
Applicant
-and-
EMC Corporation of Canada
Respondent
interim DECISION
Adjudicator: Kathleen Martin
Indexed as: Zholudev v. EMC Corporation of Canada
1This is an Application filed on March 15, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c, H.19, as amended (the “Code”) alleging discrimination in employment on the basis of age. The purpose of this Interim Decision is to address a Request for Order During Proceedings that certain portions of the Application be dismissed on the basis of delay and/or because certain allegations relate to competitions for positions located in California.
2A hearing was held on July 13, 2010 to address the Request. In determining the Request I have considered the evidence and submissions received at the hearing and the extensive material filed by both parties prior to the hearing.
BACKGROUND
3I set out below the background and a summary of the evidence presented. This summary is based on the facts set out in the applicant’s materials and the evidence of Brian Quigley, a witness called by the respondent.
4The Application arises out of the applicant’s employment and termination of his employment with the respondent. The respondent describes its business as a subsidiary of a U.S. corporation involved in the development, manufacture, sale and service of information hardware and software.
5The applicant was employed by the respondent (or a predecessor company subsequently acquired by the respondent) from October 16, 2000 to February 25, 2009. On the latter date, the applicant was laid off. The reason provided by the respondent for the lay-off was that the work performed by the applicant was being re-located to India. At the time the applicant was employed as a senior software engineer.
6In the Application and as clarified in subsequent material filed, the applicant relies on ten incidents of discrimination. Nine arise from the applicant either being denied or otherwise not considered for a position or work opportunity where the candidate ultimately selected was younger than the appplicant; and the remaining incident arises from the discontinuance of his job. The applicant alleges that the only reason for his dismissal was his age and his persistent desire to move into a business managerial position (relying on the nine earlier incidents). At the time he filed his Application, the applicant was 48 years old.
7A summary of the incidents involving the promotions or work opportunities relied on based on the applicant’s materials (and accepted by the respondent as capable of proof for purposes of the preliminary arguments) is as follows:
On May 2, 2006, the applicant spoke to Patrick Cian, an interactive content management and compliance group marketing manager, advising that he was midway through an MBA program and was interested in product marketing management for the products he was currently developing. Mr. Cian advised that he did not expect any marketing position to be open soon. On May 31, 2006, the applicant became aware that an employee, around 15 years younger than him, had been hired as a product marketing manager for product areas that he has experience in.
On May 25, 2006, the applicant spoke to Mr. Cian regarding a “sr.” (which I presume refers to senior) product marketing manager for a records managment (compliance) position that appeared on the EMC employment opportunity website. Mr. Cian advised the applicant that he was looking for someone with records managment experience and the applicant advised that he had experience working on a retention policy services product. On June 15, 2006, Mr. Cian announced the successful candidate. The applicant alleges this candidate has no records experience. According to the applicant the candidate is around 35 years old.
In July 2006, a software engineer was promoted to a “sr.” product manager, without posting any vacancy on the company website (various individuals are identified as being involved in the decision including Brian Quigley). The applicant alleges that those involved in the decision were aware that the applicant is in an MBA program. In addition, the applicant has experience in developing installers used in the product area being managed – content transformation services and file share services. The individual promoted was around 35 years old.
On March 12, 2007, the applicant expressed an interest in the position of product marketing manager for digital assets (a position about to become vacant) to Patrick Cian. The applicant was invited to give a marketing presentation to a group of managers as part of the selection process. The applicant alleges that he had only two days to prepare and that he had no access to internal resources which may have assisted him. The applicant was not selected. The candidate who was hired is around 30 years old.
On September 21, 2007, the applicant applied for a position of senior product manager, web content management and multi-channel publishing (the “web content/publishing position”) by sending a resume directly to Brian Quigley and separately to EMC Global Staffing, an EMC Internal opportunity website. The applicant was told by Brian Quigley , the hiring manager, that he would not be considered because he needed someone with publishing experience. The applicant alleges that a younger candidate without publishing experience was considered and that the candidate who was ultimately selected was also younger. The candidate selected works out of Irvine, California.
In January 2008, a manger’s position was discontinued in the Toronto office and moved to the U.S.. Patrick Cian created a new position of senior product marketing manager for web publishing for the displaced manager incumbent (who the applicant states is around 35 years old) The applicant alleges that he was discriminated against by not being given an equal opportunity for this new position. He further states that Mr. Cian was aware that marketing was his “dream job” and that he has experience in developing several products similar to web publisher products.
On April 4, 2008, the applicant applied for a posted vacancy of senior product manager, media and entertainment through the EMC Internal job opportunity website with a copy to Brian Quigley (“media and entertainment position”). On the same date, Mr. Quigley advised the applicant that a candidate had already been chosen from the west coast. The candidate selected was around 30 years old. The successful candidate works out of Pleasanton, California.
On April 25, 2008, the applicant was not asked if he was willing to apply to a quality assurance manager position, which was given to a candidate who was around 30 years old. The applicant states he had no plans to apply for this position because he could not use his skills.
In August 2008, the applicant observed that another employee holding the same position as him was being groomed to be a program manager. The employee is around 36 years old.
8In the Response and in other material filed in support of the Request for Order, the respondent disputes many of the above recitation of facts. However, as noted above, for purposes of the jurisdictional requests dealt with below, the respondent has indicated that it is prepared to treat the facts alleged (including various documents filed by the applicant) as capable of proof, unless refuted by oral evidence.
9The additional oral evidence provided came from Brian Quigley, the hiring manager for the job opportunties summarized in paragraphs 5 and 7 above. Mr. Quigley is located in the Toronto office where the applicant works.
10With respect to the web content/publishing position, Mr. Quigley states that he wrote the job title and description. There had been a former position dealing with the web content functions occupied by an incumbent who worked out of her home in Dallas. The job description was broadened to incorporate the multichannel publishing functions. The vacancy was initially posted as being in Toronto and Mr. Quigley testified that “all else being equal” he wanted Toronto as the location. However, he told a recuiter assisting him that location did not matter as it is a “global position”. The successful incumbent works out of Irvine, California.
11The media and entertainment position was viewed in a similar manner. The respondent wanted to hire a product manager to manage the sale of digitalized software to the media and entertainment market. As with the former position, Mr. Quigley’s preference initially was a Toronto location for the job, although in hindsight he commented that Los Angeles should have been specified as it is close to the entertainment hub. The location for the job was ultimately “negotiated”. The applicant wanted to be in London, but his second choice was Pleasonton, California which was agreed to by the respondent.
12Initially, at the hearing the respondent stated that the incidents set out in paragraphs 1 through 9 are outside the Tribunal’s jurisdiction: paragraphs 5 and 7 because they relate to jobs in California; paragraphs 1 through 6 because of delay; and paragraphs 8 and 9 because the applicant did not want the jobs so the allegations are not sufficient to amount to a prima facie case of discrimination.
13Near the conclusion of the hearing the preliminary issues were narrowed. The applicant confirmed that he was not seeking a remedy in respect of the incidents in paragraphs 8 and 9 above and the respondent indicated that in the circumstances, it was not requesting that the Tribunal address whether a prima facie case of discrimination was established as a preliminary issue. I determined that in the event that the applicant sought to lead evidence on the events described in the hearing, I would consider whether to permit the evidence subject to relevance and any objections that may be made by the respondent.
Are paragraphs 5 and 7 Outside the Tribunal’s Jurisdiction because the “jobs” are located in California?
14In several cases, the Tribunal has had to consider the question of whether or not it has jurisdiction to hear an employment-related applicantion because some of the factual circumstances have occurred outside of Ontario. In addressing the issue the Tribunal has accepted that a provinicial statute may not legislate “extra-territorially”, although it has also accepted that a provincial statute may cover acts outside of the province where the acts, in pith and substance, relate to matters within the province. The Tribunal has followed the approach adopted by the British Columbia Human Rights Tribunal that the employment in issue must have a “sufficient connection” to the province. See: Wood v. 507417 Ontario, 2010 HRTO 800 and the related cases issued on the same date.
15In this case the respondent argues that that the allegations in paragraphs 5 and 7 are outside the Tribunal’s jurisdiction because the successful incumbent ended up working out of California. The respondent states that the positions are worldwide and that it is preferable to use the ultimate location of the job as opposed to the location of the hiring process to determine jurisdiction because the former provides a bright line test, which will not cause remedial difficulties (suggesting that it would be difficult to enforce a remedy such as accommodation or instatement in a position if the location of the hiring process was used).
16I do not find this argument has merit. The substance of the allegations relates to discrimination in a hiring process that occurred in Toronto for a job that was originally identified as having a Toronto location. The hiring manager is located in Toronto and the applicant applied directly to him (as well as through the website). Based on these facts, I find there is a sufficient connection to the province. Accordingly, subject to any issue regarding delay, the Tribunal has jurisdiction to consider the incidents.
17I acknowledge that the current location of the job may raise specific remedial issues. Those issues may be addresed if and when it is necessary to do so.
Are the Incidents in Paragraphs 1 through 6 Untimely?
18Section 34 of the Code provides as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
19Under section 34, the Tribunal has no jurisdiction to consider an application filed more than a year after the incident or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) are met.
20In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. The Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.
21In this case, if the incidents in paragraphs 1 through 6 are considered individually, each relates to a matter that occurred more than a year before the Application was filed. Accordingly, the first issue I need to determine is whether these six job competitions or job opportunities form a series of events (with the timely events) for the purposes of section 34 of the Code.
22In arguing that the incidents are a series, the applicant stated that the all of the incidents in paragraphs 1 through 7 constitute the same type of allegation – that he applied and/or was qualified for a position; he was not interviewed (other than the single occasion); and that someone younger was hired. The applicant also argued that the same hiring people were involved.
23The respondent argues that the incidents are not a series insofar as there is no legal or factual nexus between the various incidents. The respondent suggests that each job competition or opportunity is a discrete event.
24The Tribunal’s approach to determining what is a series of incidents has been developing on a case-by-case basis. In some instances a break in the temporal connection has been found to interupt the series (see Savage v. Toronto Transit Commission, 2010 HRTO 1360). The Tribunal has also considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus: See Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310 and the cases cited at paragraph 42.
25In the case of an application regarding multiple job competitions where a series of incidents is relied on, the Tribunal has considered the time, location and decision-makers involved to determine whether the incidents are a series: Thambipillai v. Toronto District School Board, 2011 HRTO 487.
26I find it appropriate to address first the incident set out in paragraph 6. I do not find that this incident can be reasonably viewed as part of the series of incidents relied on by the applicant. The theory of the applicant’s case is that the series relates to him not being selected for job competitions or available job opportunities for which he was qualified and for which someone younger was hired. While the manager involved in this incident was younger than the applicant, the alleged incident is factually distinct based on the applicant’s version of the facts. This was an incident involving the creation of a position for a displaced manager. I find this is a discrete incident which is not factually related to the other events complained of. Accordingly, subject to the delay being incurred in good faith this allegation would be struck.
27With respect to the remaining incidents, based on the material filed and the limited evidence heard, the allegations appear to be part of a series of incidents. While the remaining incidents go back to May 2006, each pertains to a job competition or job opportunity for a similar position – product marketing manager/product manager position – and the applicant alleges discrimination in not being considered (in those instances when the positions were not posted) or selected (in those instances where he competed). The incidents are not broken by a significant period of time (ranging from less than a month to 8 months). Moreover, there is overlap in the hiring managers involved. The hiring manager from the timely incident is the same hiring manager or is involved in two earlier events and the remaining incidents involve one other manager.
28My conclusion is based on the evidence and allegations before me. It may be that if this matter proceeds to a full hearing on the merits, then based on the evidence the Tribunal may conclude that some or all of the prior incidents are not properly included as part of a series of incidents.
29The second question, which is limited to the allegation contained in paragraph 6, is whether I am satisfied that any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
30I am not satisfied that the applicant has established good faith. The applicant’s explanation for not applying to the Tribunal sooner is that the respondent recommended that he keep applying for vacancies generally. I do not find that this constitutes a reasonable explanation for his delay in filing an application about the respondent’s decision to create and reassign a manager being displaced. In the result, I am not satisfied that any delay was incurred in good faith.
31Having not been satisfied that there is good faith I do not find it necessary to consider the question of prejudice.
32In summary, for the reasons outlined above, with the exception of the allegation in paragraph 6, I cannot conclude at this stage that the Application is outside the Tribunal’s jurisdiction. The respondent’s request to dismiss the allegations in paragraphs 1 through 5 and 7 is denied, while the allegation in paragraph 6 is struck from the Application.
33The Tribunal will issue separately further directions as to the continuation of this Application.
34I am not seized.
Dated at Toronto, this 27th day of July, 2011.
“Signed by”
Kathleen Martin
Vice-chair