Humphries v. General Motors of Canada, 2011 HRTO 1905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Humphries Applicant

-and-

General Motors of Canada Limited Respondent

DECISION

Adjudicator: Mark Hart Date: October 20, 2011 Citation: 2011 HRTO 1905 Indexed as: Humphries v. General Motors of Canada

APPEARANCES BY

Heather Humphries, Applicant Richard H. Parker, Q.C., Counsel

General Motors of Canada Limited, Respondent David J. Bannon, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 22, 2006.

2The applicant’s complaint alleges that she experienced discrimination in respect of employment because of her sex and age contrary to ss. 5 and 9 of the Code, arising out of a variety of matters extending back to her initial hiring by the respondent General Motors of Canada Limited (“GMCL”) in 1994. As a result of this Tribunal’s Interim Decision in this matter dated January 26, 2010 (2010 HRTO 177), many of the allegations raised by the applicant in her complaint were dismissed for delay.

3In the end, it was determined that two issues remain for determination in this proceeding: (1) whether the applicant experienced discrimination because of her sex in relation to men being placed in Tool & Die positions during the period from November 2004 to July 2005; and (2) whether the applicant experienced reprisal due to discipline imposed in May 2005 and February 2006, which she alleges was due to her having pursued internal human rights complaints at the respondent company.

4While the applicant’s complaint alleges discrimination because of her age, no evidence was led by the applicant or submissions made on her behalf in support of such an allegation nor is any such allegation supported by the evidence.

5The hearing in this matter was held on November 10, 2010 and May 11 and 12, 2011 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. I heard evidence at the hearing from the applicant and two respondent witnesses: Randy Giroux, Employment and Labour Relations Manager for GMCL in Oshawa, Ontario; and Stan Sykes, who was the applicant’s direct supervisor at the time of her discipline in May 2005.

The Tool & Die positions

The applicant

6The applicant is a 56 year old woman. Starting in 1983, the applicant completed a series of programs at Fanshawe College in St. Thomas, Ontario, including Introduction to Non-Traditional Occupations (1983), General Machinist (1984), Welding Operator (1985) and Industrial Craftsperson, Mould Maker (1991). The applicant received her Certificate of Apprenticeship and her Certificate of Qualification as a Mould Maker in 1992.

7The applicant states that during this period, she also apprenticed as a Tool & Die Maker although she never obtained her Certificate of Apprenticeship or Certificate of Qualification specifically as a Tool & Die Maker.

8In 1994, the applicant commenced employment with GMCL in London, Ontario as a general machinist, which at GMCL is classified as a production position as opposed to a skilled trades position.

9In 2003, GMCL’s operations in London were being sold and the applicant elected to transfer to a production position at the GMCL plant in Oshawa, Ontario.

10The applicant has never held a skilled trades position at GMCL, and does not have a skilled trades seniority date under the collective agreement.

Tool & Die Maker openings at the Oshawa plant

11In October 2004, GMCL had a need for a certain amount of tool & die work to be performed at its Oshawa stamping plant in relation to a new product launch, which included working on dies. This work was relatively short term, with many of the employees hired into these tool & die positions being laid off within a year. However, this short-term “bubble” of tool & die work resulted in the hiring of 19 Tool & Die Makers during the period from the fall of 2004 until July 2005. It is the individuals hired into these 19 positions that are at issue in this proceeding.

12The 19 individuals hired into tool & die maker positions during this period of time can be divided into three groups: (1) preferential hires, of which there were three; (2) hires from a company called Automotive Components Systems of Canada Inc. (“ACSYS”), of which there were twelve; and (3) “Letter 1” hires, of which there were four. I will address each of these groups in turn.

Preferential Hires

13Preferential hire rights are in accordance with Document No. 14 of the Master Collective Agreement between GMCL and the National Automobile, Aerospace, Transportation and General Workers Union of Canada (“CAW–Canada”). Under this document, a preferential hire into a skilled trades position is available to a GMCL employee who has been laid off from a skilled trades position in that particular trade at another GMCL location. These preferential hire rights lasted for as long as the individual had worked in that particular trade at her or his home location. Under the collective agreement, preferential hires have the first opportunity for job openings in their job classification.

14As stated above, there were three preferential hires as Tool & Die Makers into the Oshawa stamping plant. All of these preferential hires were effective October 4, 2004. Michel Jarry and Rejean Laverdure both had been skilled trades employees at a GMCL plant in Sainte-Thérèse, Quebec, which was downsizing and eventually closed. Both of these employees were on layoff from the Sainte-Thérèse plant at the time of their preferential hire into the Oshawa stamping plant.

15Mr. Jarry had been a skilled trades employee with GMCL from his initial hire date of October 26, 1987. The evidence before me from Mr. Giroux and supported by documentation is that Mr. Jarry was hired as a Tool Maker and then re-classified in 1988 as a Tool Maker / Inspection / Machinist. Mr. Giroux’s evidence is that this is a skilled trades classification that was unique to the Sainte-Thérèse plant and is equivalent to the skilled trades classification of Tool & Die Maker at the Oshawa plant.

16Mr. Laverdure had been a skilled trades employee with GMCL since his original date of hire on June 29, 1987. He too had been hired as a Tool Maker and then re-classified in 1988 as a Tool Maker / Inspection / Machinist.

17The third preferential hire, Martin Bujak, had been a skilled trades employee at the GMCL Trim Plant in Windsor, Ontario and was on layoff from that facility. He had been a skilled trades employee with GMCL since his original hire date of November 5, 1984 and had been a Tool & Die Maker with GMCL since that time.

18The applicant takes issue with these preferential hires. She states that the respondent has failed to provide either a Certificate of Apprenticeship or a Certificate of Qualification for these individuals as a Tool & Die Maker. It is correct for the applicant to observe that these particular documents are not in evidence before me. However, that is not the issue for me to determine. The issue before me is whether the applicant experienced discrimination because of her gender in relation to these three preferential hires. The evidence before me indicates that under the collective agreement, a GMCL employee who is on layoff from a skilled trades classification has preferential hiring rights in relation to skilled trades openings in their trade at another GMCL location. The evidence before me indicates that each of these three individuals were on layoff from the skilled trades classification of Tool & Die Maker or its equivalent in Quebec. As such, under the collective agreement, they had preferential hiring rights over the applicant into Tool & Die Maker positions at the Oshawa plant.

19Accordingly, I find that the evidence does not support the applicant’s allegation of discrimination because of her gender in relation to the preferential hires.

ACSYS hires

20In Oshawa, there was a fabrication plant that was originally owned and operated by GMCL, but then sold to a company named Peregrin and subsequently re-sold by Peregrin to ACSYS. This plant fabricated parts and supplied them to GMCL for use in the production of its vehicles. In 2003, ACSYS determined that due to the inability of this plant to become financially viable, it intended to wind down the operation of the fabrication plant. This led to a concern by GMCL that the wind down of this plant occur in an orderly fashion, so that production of its vehicles was affected as little as possible. In particular, GMCL was concerned to ensure that the wind down and eventual closing of the ACSYS fabrication plant was not disturbed by any labour disruption.

21ACSYS employees also were represented by CAW–Canada. In order to address its concerns about potential labour disruptions at the ACSYS plant, GMCL entered into negotiations with CAW–Canada that resulted in the signing of two Memoranda of Understanding in August and November 2003, both of which are in evidence before me. The evidence before me is that, in exchange for CAW-Canada’s agreement that there would be no labour disruption, GMCL made a commitment to grant preferred hiring rights to certain ACSYS employees. While the language of the Memoranda of Understanding is far from clear in relation to employees in the Tool & Die trade, the evidence before me is that GMCL made a commitment to hire ACSYS employees who were working at the fabrication plant in a Tool & Die classification into available Tool & Die positions with GMCL at its Oshawa location. There is no evidence to contradict this. Apart from the Memoranda of Understanding, this evidence is supported by a letter from GMCL Labour Relations to CAW-Canada dated June 25, 2004, in which GMCL confirms its commitment to review job opportunities at its Oshawa location and find job opportunities for ACSYS skilled trades employees. Attached to this letter is a list of ACSYS skilled trades employees, including Tool & Die Makers. All twelve of the ACSYS employees who were hired into Tool & Die positions at the Oshawa stamping plant are included on this list.

22The applicant takes issue with the hiring of these ACSYS employees, first on the basis that for at least nine of them, there is no evidence that they had their Certificate of Qualification as a Tool & Die Maker. She also takes issue with the fact that she had greater seniority than many of these ACSYS employees.

23Once again, however, that is not the issue before me. As stated above, the issue is whether the applicant experienced discrimination because of her gender in relation to the ACSYS hires. The evidence before me indicates that all twelve of these individuals were working in a Tool & Die Maker classification at the ACSYS plant. GMCL made an agreement with CAW-Canada to hire such individuals over to its Oshawa location into available Tool & Die positions in exchange for labour peace at ACSYS until its closure. Whether or not one agrees with the agreement negotiated between GMCL and CAW-Canada or believes that it was fair to GMCL employees already working at the Oshawa plant, the reaching of this agreement was a result of labour relations issues and concerns and had nothing to do with gender discrimination. Indeed, one of the twelve employees hired from ACSYS into the Tool & Die positions at GMCL was a woman.

24As a result, I find that the evidence does not support the applicant’s allegation that she experienced discrimination because of her gender in relation to the ACSYS hires.

Letter 1 hires

25Letter 1 is a letter attached to the Oshawa Local Collective Agreement, which provides that where there is an opening in a skilled trades classification and there is an employee working in the plant in a non-skilled classification but who is a qualified journeyman / journeywoman in the classification in which the opening occurs, such employee shall be given preference over a new hire provided that the employee has made such qualifications known to management, has filed an application to be employed in the skilled trades classification in which the opening occurs, and provided that such qualifications are equal to the new hire.

26Mr. Giroux’s evidence, which is uncontradicted, is that at the time it was anticipated that there would be Tool & Die Maker openings in the Oshawa stamping plant, he was approached by the union and asked to consider hiring four individuals as Letter 1 hires into these positions. Three of these individuals had been employed as Tool & Die Makers at other GMCL facilities but were then working as production employees at the Oshawa plant. Due to the passage of time since their layoffs as skilled trade employees, their right to be preferentially hired into these Tool & Die Maker positions under Document No. 14 (discussed above) had expired.

27The fourth of these individuals, Greg Strojwons, was known to the union to be a certified Tool & Die Maker and was drawn to management’s attention by union leadership. An agreement was made with the union by GMCL to hire Mr. Strojwons into a Tool & Die Maker position at the Oshawa stamping plant provided that he submitted evidence of his qualifications as a Tool & Die Maker. Mr. Strojwons provided his Certificate of Qualification as a Tool & Die Maker, which is in evidence before me. While the applicant has raised an issue that there is no signature on this Certificate of Qualification, this document appears on its face to have been issued by the Government of Ontario Ministry of Training, Colleges and Universities, relates to Mr. Strojwons, and shows that it was issued to him on April 24, 2001. I am satisfied as to the legitimacy of this document.

28The applicant submits that she should have been hired as a Tool & Die Maker in preference to some of all of these four Letter 1 hires and that GMCL’s failure to do so amounts to gender discrimination. There are three problems with the applicant’s position. First, the evidence before me is that GMCL’s decision to hire these four individuals was made on the basis of a request made to management by the union. There is no evidence to contradict this. As a result, in my view, this alone provides a legitimate, non-discriminatory explanation for GMCL’s decision to hire these four individuals as Tool & Die Makers which is unrelated to the applicant’s gender.

29Second, Mr. Giroux’s evidence is that this agreement was made with the union prior to the applicant submitting an application in accordance with Letter 1 for consideration to be hired as a Tool & Die Maker. Mr. Giroux’s evidence is that, because the union brought forward the names of these four individuals, there was no wide canvass of individuals who had filed applications to be considered as Letter 1 hires. As a result of the agreement made by management with the union regarding these four individuals, Letter 1 applicants on file at that time simply were not considered.

30At the same time, Mr. Giroux’s evidence is that, at the time this agreement was made with the union, GMCL did note that many of the Letter 1 applications on file were outdated. As a result, on October 15, 2004, Mr. Giroux issued a bulletin to all Oshawa hourly employees inviting them to submit a resume if they wished to apply for a skilled trades position under Letter 1. This bulletin indicated that only resumes received after October 15, 2004 would be considered. The effect of this bulletin was to clear out the Letter 1 file currently maintained by management, so that from that date forward only fresh applications would be considered. The applicant submitted her application on October 20, 2004.

31The evidence before me, which again is uncontradicted, is that the decision to hire these four individuals into Tool & Die Maker positions was made prior to the issuance of the October 15, 2004 bulletin and hence prior to the Letter 1 application submitted by the applicant. As a result, as at the time the decision was made, the applicant simply had not filed a Letter 1 application at the Oshawa plant for consideration to be hired as a Tool & Die Maker and so would not have been eligible for consideration in any event. Once again, this has nothing to do with gender discrimination against the applicant.

32Third, following the hiring of these four individuals, the applicant raised the issue that she ought to have been hired into one of these Tool & Die Maker positions on the basis of her qualifications. This caused GMCL to review its hiring decision to assess whether this was the case. GMCL’s position, quite simply, is that the applicant was qualified as a Mould Maker, which is a different skilled trade than a Tool & Die Maker, and that she was not qualified as a Tool & Die Maker. In contrast, Mr. Strojwons, as discussed above, was qualified as a Tool & Die Maker. In addition, the three other individuals hired as Letter 1 hires had worked in skilled trades positions as Tool & Die Makers at other GMCL locations for significant periods of time.

33The applicant has raised an issue in this proceeding that her qualification in the skilled trade of Mould Maker should have been regarded as equivalent to a qualification as a Tool & Die Maker and should have been sufficient for her to gain one of the Tool & Die Maker positions. While the evidence before me indicates that there are some similarities and overlap between these two trades, the evidence also indicates that they nonetheless are separate and distinct trades. In particular, the evidence before me indicates that a Tool & Die Maker has training in mechanical assembly for tool and die making and die building technology and processes, which a Mould Maker does not have and which was of particular importance for the duties required in the Tool & Die Maker positions at the Oshawa stamping plant.

34The applicant submits that GMCL has treated Tool & Die Maker and Mould Maker qualifications as being equivalent in the past. In support of this, the applicant makes reference to a seniority flow chart under the Oshawa Local Collective Agreement, which purports to show that Mould Makers and Tool & Die Makers are equivalent for the purpose of reduction in force provisions under the collective agreement. However, the evidence before me, which again is uncontradicted, is that this seniority flow chart does not refer to the skilled trades of Tool & Die Maker and Mould Maker as externally recognized by the Ontario government, but to specific job classifications within the Oshawa plant. Historically, the classification of “Mould Maker” was used under the Oshawa local agreement to distinguish between employees performing Tool & Die work in the Delphi Battery Plant and the former fabrication plant from those employees performing Tool & Die work at other Oshawa locations. As a result, I do not accept that the use of this nomenclature in the Oshawa local collective agreement is sufficient to establish that GMCL treated these two skilled trades as equivalent for the purpose of assessing the qualifications of potential Letter 1 hires.

35The applicant also has submitted that historically, GMCL has hired men who have qualifications as Mould Makers into Tool & Die Maker positions. In my view, the evidence before me is far from sufficient to establish this. In any event, any such evidence does not address the fact that, in respect of these particular four individuals who were hired as Letter 1 hires, three of them previously had held skilled trades positions at GMCL as Tool & Die Makers and the fourth was qualified as a Tool & Die Maker. In my view, the fact that these four individuals either had worked and/or were qualified in this specific trade, unlike the applicant, provides a legitimate, non-discriminatory reason for preferring them over the applicant without regard to her gender.

36Finally, I note that it is not only GMCL’s position that Tool & Die Maker is a distinct and different trade than Mould Maker, but also the position taken by CAW-Canada. In particular, in evidence before me is a letter dated February 15, 2005 from John Bettes, Director, Skilled Trades Department at CAW-Canada, which indicates that he had reviewed the applicant’s file and which expresses the view that, while there are some commonalities, the skilled trade of Tool & Die Maker is distinct from the trade of Mould Maker and particularly that under the CAW Standards for Skilled Trades and the GMCL collective agreement, the applicant would not be qualified as a Tool & Die Maker.

37As a result, I find that the evidence does not support the applicant’s allegation that she experienced gender discrimination in relation to the Letter 1 hires.

38Accordingly, for all of the foregoing reasons, I find that the applicant has not established on a balance of probabilities that she experienced discrimination because of sex in relation to tool & die positions filled at the respondent’s Oshawa plant during the period from the fall of 2004 to July 2005.

Reprisal allegations

Discipline in May 2005

39As a result of a work-related injury, the applicant was assigned modified work doing paint touch-ups on door hinges. On May 3, 2005, the applicant complained to her supervisor, Mr. Sykes, that exhaust fumes were making her nauseous. As a result, Mr. Sykes moved the applicant to perform work on the side of the vehicles that was away from the exhaust fumes. The applicant then complained to Mr. Sykes that the fumes from the touch-up paint were making her feel sick, and she was permitted to go see the plant nurse. Upon her return from the nurse, the applicant requested her lunch break she had missed while she was away with the nurse, which was granted. There is no dispute that the applicant was entitled to 20 minutes for her lunch break.

40Mr. Sykes’ evidence is that, when the applicant had not returned to her work station 45 minutes after having left for lunch, he went to look for her and found her in the cafeteria talking and laughing with friends and issued her a written warning for being absent from her work area.

41The applicant does not dispute that she was away from her work area for longer than the requisite 20 minute lunch period. However, her evidence is that she understood that she had been told by Mr. Sykes to wait in the cafeteria until he came to get her. Her evidence is that in the past, she had been told to wait on other occasions while management searched for a suitable job that she could perform within her restrictions. This is disputed by Mr. Sykes, who states that he did not tell the applicant to wait for him before returning to work. He also states that on other occasions when the applicant had been asked to wait while management searched for suitable work, she waited at a picnic table near his work station rather than in the cafeteria. In any event, he also states that there was no issue regarding the suitability of the modified work that the applicant was performing, and hence no reason for her to wait for him before returning to her assigned work.

42Later on that same shift, the applicant was given a one day suspension by Mr. Sykes for failing to complete her work assignment, on the basis that she had missed a number of touch-ups. The applicant does not dispute that she missed touch-ups, but states that the area in which she was working was dimly lit and the line was moving fast as an explanation.

43Due to her complaints about the exhaust and paint fumes, the applicant was issued a respirator. On May 13, 2005, the applicant was given a one week suspension for misappropriation of company property on the basis that she had deliberately applied paint on the respirator. The evidence indicates that this discipline was resolved between management, the applicant and the union on the basis that, while her disciplinary record would show a one week suspension, she was only required to serve one day.

44I heard a lot of evidence at the hearing regarding how much paint was on the respirator and how it got there. The applicant’s evidence is that some co-workers had put some inappropriate markings on the respirator nose piece, which she covered by painting over them to create a “Nike swoosh”. She also states that, as a result of doing the paint touch-up work, paint accidentally got onto the respirator. Mr. Sykes’ evidence is that there was considerably more paint on the respirator than indicated by the applicant, and that the application of the paint was deliberate not accidental.

45I am not a labour arbitrator and it is not my role to determine whether there was just cause for discipline under the collective agreement or whether the penalties imposed were appropriate. The sole issue before me under the Code is whether the imposition of this discipline by Mr. Sykes amounts to reprisal against the applicant for seeking to claim and enforce her rights under the Code, contrary to ss. 8 and 9 of the Code.

46In order to prove reprisal, an applicant must establish that the respondent engaged in an action or threat which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate: Noble v. York University, 2010 HRTO 878 at para. 31.

47While an intention to retaliate may be inferred on the basis of circumstantial evidence, there nonetheless must be some basis in the evidence to support a finding that the person responsible for the action taken against an applicant which is alleged to be reprisal was at the very least aware of the steps taken by the applicant to claim and enforce her Code rights. The evidence before me in the instant case is far from sufficient to support such an inference.

48At this time, the steps relied upon by the applicant to establish that she had sought to claim and enforce her Code rights relate to a complaint of gender discrimination that she had made in 2001 when she was working at the GMCL plant in London, Ontario. While not raised by the applicant before me, the evidence also indicates that prior to May 2005, the applicant had met with someone in management at GMCL on March 22, 2005 to make a complaint that she had been discriminated against because of her gender in relation to the hiring of Tool & Die Makers.

49The problem is that there is no evidence before me to indicate that Mr. Sykes was aware either of the complaint made by the applicant when she was working at the London plant or her complaint about not being awarded a Tool & Die Maker position. There is no evidence before me that Mr. Sykes was personally involved in either of those matters. Nor is there evidence before me to suggest how he would have been made aware of such matters. Further, while there certainly are disagreements in the evidence regarding the events which formed the basis of discipline, in my view there is nothing so out of proportion to or incongruent with the circumstances so as to provide a sufficient basis to support an inference that Mr. Sykes intended to reprise against the applicant for claiming her rights under the Code. The applicant concedes that she did not return to her assigned work after her 20 minute lunch break, though she has an explanation which is disputed. She concedes that she missed paint touch-ups, though she has an explanation which is also disputed. And she concedes that she deliberately applied paint to her respirator, although she denies that this impaired its functioning and disputes the amount. The discipline imposed by Mr. Sykes was in accord with the standards for progressive discipline at the Oshawa plant, and indeed the third and most serious disciplinary penalty was resolved on the basis that the applicant was required to serve only one day of her one week suspension.

50In my view, on the basis of the totality of the evidence before me, there is not sufficient evidence to support an inference that the respondent intended to reprise against the applicant when imposing discipline upon her in May 2005, and I so find.

February 2006 discipline

51In February 2006, the applicant was given a two week suspension for not performing her job requirements. At this time, the applicant was working on the assembly line. One of her jobs was to finger start a number of screws connecting the battery tray to the vehicle chassis. Another employee at a later stage on the line would tighten the screws.

52Her evidence is that there was a problem in the manufacturing of the battery trays, such that the holes for the screws were not aligned with the holes in the chassis. As a result, the applicant states that it was difficult for her to properly insert the screws. She states that she did her best to insert the screws, but acknowledges that due to the misalignment of parts some of these screws may have come out as the vehicle proceeded further down the line.

53The evidence before me indicates that the applicant was disciplined by her then supervisor, an individual named Drew Smith. Mr. Smith apparently no longer is employed by GMCL and was not called as a witness to testify before me. I do have in evidence before me a computer record of notes made by Mr. Smith from the relevant time regarding the discipline imposed and the reasons for it, which I was urged by respondent counsel to accept as a business record. While I appreciate that the notes recorded in this document appear to have been made at the times indicated, as a general rule I am loathe to accept what amounts to hearsay evidence on a critical point particularly where, as in this case, I am not satisfied that it would not have been possible for the respondent to call Mr. Smith as a witness to testify to these matters directly.

54Nonetheless, in my view, there is not much in dispute about this incident. Once again, the applicant does not deny that one of her jobs was to finger start these screws or that these screws may have popped out as the vehicle proceeded down the line. Rather, she advances the misaligned screw holes as an explanation for this.

55As with the applicant’s preceding allegation of reprisal, the missing element here is any sufficient basis in the evidence to support an inference that in imposing this disciplinary penalty, Mr. Smith intended to reprise against the applicant for seeking to claim and enforce her Code rights. By this time, the applicant also had made an internal complaint against Mr. Sykes regarding the discipline imposed in May 2005 on the basis that this was discrimination against her as an injured worker (no such allegation was raised in the complaint before me). However, there is no evidence before me to support that Mr. Smith was aware of this complaint or of the applicant’s prior internal complaints alleging gender discrimination. In her evidence before me, the most the applicant could say was that she believes that she recently had followed up with her union regarding the status of the complaint she had made in London. But there is no evidence before me regarding who specifically in the union the applicant says she followed up with, whether and with whom the union may have spoken to about this within GMCL management, and whether and how any such communications would have come to the attention of Mr. Smith.

56Nor again is there a lack of proportion or congruity between the event relied upon to impose discipline and the amount of discipline imposed in accordance with the next step for the applicant in the progressive discipline process, as would justify the drawing of an inference of an intent to reprise by Mr. Smith. The applicant acknowledges that the screws she was supposed to insert may have been missing as the vehicle proceeded up the line, although she has an explanation for this. The two week suspension imposed on the applicant was the next step in the progressive discipline process following the one week suspension on her record from May 13, 2005.

57As a result, on the totality of the evidence, I find that there is no sufficient basis to support an inference that the respondent intended to reprise against the applicant for seeking to claim and enforce her Code rights arising out of the discipline imposed upon her in February 2006.

58For all of the foregoing reasons, the Application is dismissed.