Colella v. Toronto Catholic District School Board, 2011 HRTO 1912

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Colella Applicant

-and-

Toronto Catholic District School Board Respondent

-and-

Canadian Union of Public Employees and its Local 1280 Intervenor

DECISION

Adjudicator: David Muir Date: October 24, 2011 Citation: 2011 HRTO 1912 Indexed As: Colella v. Toronto Catholic District School Board

Appearances

Anna Colella, Applicant | Self-represented Toronto Catholic District School Board, Respondent | John W. Woon, Counsel Canadian Union of Public Employees and its Local 1280, Intervenor | Ryan Goldvine, Counsel

1This is an Application filed on June 29, 2009, pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, in the human rights complaint (the "complaint") underlying this Application, alleges that her right to be free of discrimination and harassment in the workplace in respect of an alleged disability and sex has been infringed by the respondents.

2A number of allegations of discriminatory conduct were alleged in the complaint. A number of these allegations were dismissed in 2010 HRTO 1768 because they were untimely or had been dealt with in other proceedings. Two general allegations remained as follows:

1. In July 2006 the applicant alleges that pictures of women in bikinis were posted in a washroom used by staff. The applicant also alleges that a skeleton with male genitalia was hung on a refrigerator used by staff. The applicant alleges that when she reported this is to a manager he was dismissive of her concerns.

2. The applicant alleges that in 2006/2007 she was at St. Francis Xavier School and was harassed by the Vice-Principal, Joe D. The applicant alleges that because of this harassment she was required to take a leave from work.

3A hearing was held in respect of these remaining issues on August 20, 2011, in Toronto in accordance with the expectations set out in the Code and the Tribunal's Rules that these matters be dealt with a fair, just and expeditious manner. I heard from the applicant as well as Mr. Paul Deighan, a supervisor of the applicant's at the material times, and Joe D'Mario, a Vice-Principal employed by the respondent Board.

4The Intervenor took no position on the facts in dispute and although present throughout the hearing only took a watching brief over the proceedings.

5The Application is dismissed. I am not satisfied based on the evidence presented that the applicant has established a violation of the Code in respect of either of the two general allegations set out above.

The Skeleton Incident

6There is no dispute that on July 7, 2007, the applicant reported to various school Board officials that there were pictures of bikini-clad women posted in the washroom adjacent to the caretakers' lunch room. The pictures of the women were variously described as being on a calendar or clippings from a newspaper. The best evidence on this point was that of the applicant, who testified that they were from a newspaper. Mr. Deighan believed it was a calendar but could not be sure. I do not believe it is necessary to resolve this minor factual dispute. Even more troubling than these pictures was the presence of a small skeleton to which had been attached male genitalia hanging on the refrigerator door in the caretakers' lunch room.

7The applicant agreed that Mr. Deighan, an offsite supervisor of the applicant responsible for 30 or more schools, attended the workplace within a couple of hours. He spoke to her first and heard her concerns. He saw the offending materials. It is agreed that he told the applicant that such things were unacceptable in the workplace. He also said, it is agreed, that any number of people have access to these areas and anyone could see what had been put on the walls and the refrigerator. The applicant also agreed that she did not know what the respondent said to the other caretakers and similarly agreed that it would not be appropriate for her to be told what discipline, if any, was imposed on them.

8Mr. Deighan testified that he then spoke with the four male caretakers. None of them admitted responsibility for the skeleton. The other material in the washroom had been posted for some time they claimed but again none of the men was prepared to take responsibility for it. I asked Mr. Deighan if he believed that none of them was responsible for the appearance of this material in the workplace; he responded that he was not sure. He testified that he told the men that the material was completely inappropriate and should not be in the workplace. He verbally warned them and advised them if there was a further incident of this kind they would be subject to further discipline. I asked him if he used these exact words and he testified that he had. He testified that he believed that he had disciplined the men and that if there was any further incident of this kind he would rely on this prior incident in meting out any further discipline. It is agreed that Mr. Deighan spoke to the applicant after meeting with the male caretakers and told her that he had advised them that this kind of thing was inappropriate and would not be repeated. There is no reason not to accept Mr. Deighan's evidence in this regard. There have been no reports of any further incidents of this kind in this school although three of the four caretakers are still there.

9The applicant testified and has claimed throughout that Mr. Deighan said to her in this second conversation that no one would admit to the skeleton and words to the effect that boys will be boys. She testified at the hearing that he might have said this to make her feel better. Mr. Deighan denies making such a remark. At the hearing for the first time the applicant testified in cross when she was asked to acknowledge that no one would admit responsibility she said that she had been told that they had done it as a joke. Mr. Deighan denied saying any such thing or being told by the male caretakers that this was the case.

10The applicant was never again in this school as she went on vacation almost immediately after this incident and after her vacation was assigned to another school. Mr. Deighan testified that he believed that the matter had been resolved.

11The applicant stated that she felt there was zero tolerance for this kind of material. I am not sure what the concept of zero tolerance means in this context. The applicant also stated that she thought something more should have been done than the men being told that such material was inappropriate in the workplace. As for the "boys will be boys" remark, if made, it was insensitive, even if as indicated by the applicant it might have been said to make her feel better. If it was said it would reasonably have misled the applicant to think that that the respondent did not take the issue seriously and that nothing would be done to address the issue. However, as indicated above, the respondent appears to have taken her concerns seriously. Her complaint was immediately investigated and the offending material removed. Her male colleagues were counselled that such material was unacceptable in the workplace and they were warned that any further incident would result in further discipline. I am not prepared to find, in all the circumstances, including that the applicant was leaving the school, that the respondent's response to the incident was not sufficient.

12I also find for the same reasons that this incident did not create a poisoned work environment for the applicant. As she said the matter was resolved in the sense that she left the school and was never again in contact with any of these male caretakers.

13No one from the respondent apologized for this incident. The respondent was aware of the incident, in particular Mr. Deighan and the school's principal, who the applicant had contacted first. Despite knowing that this was upsetting for the applicant, no one on behalf of the respondent apologized. Someone should have, but I do not find that this failure constitutes a violation of the Code.

The Harassment Claim

14The applicant claims that she experienced harassment at the hand of the Vice-Principal of a school to which she had been assigned for much of the school year 2006-2007. There is no issue that there was a dispute between the applicant and the Vice-Principal about the state of cleanliness in the school. The dispute is documented in a number of emails from the Vice-Principal to the applicant and various officials of the Board, including the applicant's supervisor. As well, the applicant relies on a letter of discipline that she received for leaving work early without advising the school office, contrary to Board policy.

15The applicant alleges that she was subject to this course of vexatious conduct because she was a woman. There is no evidence that this is the case. The only evidence the applicant could present were three inspection reports conducted by her supervisor. These reports are created monthly at most and are a snapshot of the state of the school on a day when the inspection was conducted. The reports reflect that generally the school was rated good or better on the relevant scale of cleanliness. However, two of the three reports do record deficiencies of the kind that the Vice-Principal complained of. The applicant states that if the school was as bad as the Vice-Principal's complaints suggest, she would not have received favourable inspection reports.

16While perhaps perplexing and frustrating for the applicant, I am not satisfied that the Vice-Principal's complaints constitute harassment. There is, as indicated, no direct evidence to support the applicant's claims. I also find that there is insufficient circumstantial evidence to support such an inference. The issues raised by the Vice-Principal were real and not made up. It may be, as the applicant suggested her supervisor told her, that the Vice-Principal's standards were simply too high. This possibility was acknowledged by the Vice-Principal, who asked on more than one occasion if the standards of cleanliness he expected in the school exceeded Board standards.

17As regards the letter of reprimand for leaving the school early without informing the school, I am satisfied that there was a perfectly rational non-discriminatory rationale for this letter in the circumstances. The applicant acknowledged that as the head caretaker she was responsible for the physical plant and that it was important that the school be informed of who was responsible for the physical plant, such that if she had to be away for any reason it was necessary for the school to be aware of that in order that someone could be identified as responsible. In this case the applicant had asked the staff person coming on shift to cover for her. The respondent does not take issue with such an arrangement being made, but the applicant did not go the next step and advise the school that she had made this arrangement. The applicant in effect acknowledged at the hearing the need of the school to know what arrangements she had made for coverage.

18The applicant alleges that as a result of this harassment she became ill. In late March 2007 she presented her supervisor with a Doctor's note which indicated that the doctor believed the applicant "would be best served by a transfer to an alternative site."

19At the time the applicant was replacing the regular head caretaker who had been injured at work and who returned on April 26, 2007. The applicant was advised in late April that she would be re-assigned. The applicant believes that the respondent did not move her because of her doctor's note but because the incumbent was returning to work – as such they failed to accommodate her to the point of undue hardship. The applicant's only evidence on this point is that when she gave the note to her supervisor, he is alleged to have said that just because the doctor writes a note, he did not have to act on it. The applicant testified that she insisted that he deal with it and her manager agreed to take the issue to his superiors. The applicant was in fact moved from the school within a month of her request. I am not satisfied that the available evidence is sufficient to establish a failure to accommodate the applicant. The fact is that she was out of the school within a month of asking to be moved.

20For all of these reasons the application is dismissed.