HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Susan Waters
Applicant
-and-
Toronto District School Board, Andrea Alimi, Ken Kroeker and Susan Neville
Respondents
DECISION
Adjudicator: Sherry Liang
Date: December 8, 2011
Citation: 2011 HRTO 2220
Indexed as: Waters v. Toronto District School Board
APPEARANCES
Susan Waters, Applicant ) Self-represented
Toronto District School Board, Andrea Alimi, ) Ken Kroeker and Susan Neville, Respondents ) Grant Bowers, Counsel
1This is an Application filed on August 20, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the ground of age, as well as reprisal.
2In my Interim Decision of January 19, 2011, 2011 HRTO 135, I dismissed most of the allegations in the Application. I found, after hearing the applicant’s evidence, that they did not provide a sufficient basis for requiring a response from the respondents. However, I reconvened the hearing in order to receive the evidence of the respondents on the applicant’s allegation that the failure to promote her to the position of Vice-Principal at Lord Dufferin Junior and Senior Public School (“Lord Dufferin”) in 2006, and the decision to select the respondent Susan Neville instead, was based at least in part on the applicant’s age.
3At the time of the events at issue, the applicant was a teacher at Lord Dufferin, an elementary school within the Toronto District School Board (the “Board”). The respondent Alimi was an area Superintendent responsible for a group of schools, including Lord Dufferin. There are 24 such area Superintendents with the Board, and approximately 38 Superintendents in total.
BACKGROUND
4As described in the Interim Decision, the promotion and selection of Vice-Principals and Principals is governed by a Board policy titled “Principal/Vice-Principal Selection, Promotion and Transfer Process.” Teachers who are interested in promotion to a position as a Vice-Principal or Principal must complete an application form, which requires inclusion of the applicant’s resume highlights, copy of the College of Teachers’ Certificate of Qualifications (“OTC”) and names of referees.
5Candidates are screened and interviewed and, if accepted, placed on one of four promotion lists (Vice-Principal Elementary, Vice-Principal Secondary, Principal Elementary and Principal Secondary). Once on the list, the candidates periodically complete a Placement Request Form, which provides information about their strengths and interests, includes their resume highlights, and indicates their preference for region. The Board’s Policy indicates that promotions occur twice a year (once in December/January and once in September); candidates must therefore complete these Transfer Request Forms in mid-October and mid-February for consideration for promotions. According to the Board’s Policy, a candidate may remain on the list for up to two school years, with the possibility of an extension of a further two years. From the documentary evidence, it appears that some candidates remain on the list for longer. According to the Policy, candidates whose time on the list expires without a promotion may re-apply for inclusion on the list.
6Vacancies for administrative positions within a school are filled through bi-annual Transfer and Promotion Meetings, attended by Board Superintendents. At these meetings, Superintendents arrive at a recommended list of candidates to fill vacancies, including transfers and placements from the promotions list. According to the Board’s Policy, Superintendents then consult with their local Board Trustee and the designated parent representative with the school, and report back to the Chair of the Meetings with confirmation. Superintendents are also to consult with the school Principal about a candidate being considered for promotion or transfer.
7The applicant successfully completed the process for placement on the promotion list and was added to the Elementary Vice-Principal Promotion List in February 2006. In the spring of 2006, a Vice-Principal position became available at Lord Dufferin, to be effective September 2006, and the applicant wished to be promoted to that position. She was not promoted and instead another individual on the promotions list, Susan Neville, was given the position. Susan Neville was approximately twenty years younger than the applicant at the time.
8The applicant believes that she was the best candidate for the position from the promotion list, and was denied the promotion because of her age. The evidence given at the hearing in support of this allegation was summarized in the Interim Decision as follows:
The applicant met the minimum qualification requirements for a promotion, having been placed on the promotion list.
She remained on the list for some 21 months without receiving a promotion.
At least twenty of the twenty-seven individuals promoted during the time the applicant was on the promotions list received their teaching qualifications in the 1990’s; the applicant received hers in 1969.
The applicant met all of the school-based qualifications for promotion to this position except for the staff’s preference for an individual with Vice-Principal experience; the successful candidate did not have experience with the particular community served by the school, which was identified by the Principal and parents as important.
The Principal thought that the applicant was the ideal candidate.
In addition to Ms. Neville, the two other individuals receiving promotions into this school in the following two years also received their teaching qualifications in the 1990’s.
9In her Application, the applicant states that she was told that the reason she was denied the promotion at Lord Dufferin was because of a policy against promotions within the same school. She believes that this policy was a pretext for discrimination, in that she does not believe it has been consistently applied. The applicant asserts that this policy did not prevent two younger teachers with a background at Lord Dufferin from receiving promotions there in January 2008. She therefore believes that the true reason for denying her the promotion in 2006 was her age.
10In my Interim Decision, I indicated that I wished to hear the evidence of the respondent Alimi on the decision not to select the applicant for the position at Lord Dufferin. When the hearing reconvened on May 27, 2011, I heard that evidence. The applicant did not give any evidence in reply. She did wish, however, to file a written statement that she wished to have considered as part of her case. Upon my review of the statement, it appeared to be a summary of the applicant’s submissions, referring in places to evidence the applicant had given previously, and addressing some issues raised in the Response. Counsel for the respondent objected to the statement, but I ruled that I would receive it and consider any objections that counsel had about the weight that should be given to any part of it.
EVIDENCE OF ANDREA ALIMI
11In 2006, Ms. Alimi was an area Superintendent with responsibility for a group of schools including Lord Dufferin. She testified that in that year, two vice-Principals left Lord Dufferin. The Board decided to reduce the number of Vice-Principals at the school to one, and the school therefore needed to fill that position for September 2006.
12Ms. Alimi reviewed the Vice-Principal promotion list, and identified the candidates who expressed a preference for the area of the Board within which Lord Dufferin was located: the Southwest quadrant. She reviewed the Placement Request Forms, which include candidates’ resumes, their OTC’s and other information about candidates’ strengths and interests. She considered other information, such as the school profile for Lord Dufferin, and narrowed the field of candidates to two individuals, Ms. Neville and one other.
13Ms. Alimi testified that she did not consider the applicant as a candidate for the position because at the time there was a practice that promotions did not occur from within a school. That is, teachers would not be considered for promotion to a Vice-Principal position at the school where they taught, and Vice-Principals would not be considered for promotion to Principal at their own school. She explained the practice as based on the difficulties that could arise when a teacher who has established relationships with other teachers at a school is placed in a position with management responsibility over those other teachers.
14Ms. Alimi testified that Vice-Principals have responsibilities in the area of teacher performance appraisals, which could affect job security, as well as in the assignment of work to teachers. They are also involved in dealing with complaints about teachers from other staff, students or parents, which could result in discipline. These responsibilities lead to the potential for real or perceived preferential treatment when a teacher is promoted from within a school.
15In Ms. Alimi’s evidence, this was the reason that the applicant was not considered for the promotion in 2006. One of the applicant’s witnesses, John McCaughey, who was the Principal of Lord Dufferin at the time, confirmed in his evidence that Ms. Alimi told him in the spring of 2006 that this was the reason the applicant was not considered. In giving her own evidence, the applicant did not disagree that there is a legitimate rationale behind the practice of not promoting teachers from within the same school. However, she believed that the practice was not consistently applied and was used in her instance to hide a discriminatory motive for not promoting her. The applicant identified two individuals whom she understood had been promoted from within Lord Dufferin, Leigh Haines and Gary Crossdale.
16Ms. Alimi testified about the examples given by the applicant. She explained that Ms. Haines, who was appointed a Vice-Principal in 2008, was a teacher at Lord Dufferin in the school year 2004-5 and then from September 2005 to February 2006, when she went on leave. From the fall of 2006 to the time of her promotion, she held a central position as a guidance counsellor to a group of schools, including Lord Dufferin. She was not considered a teacher at Lord Dufferin at the time of her promotion, as she was not based at Lord Dufferin, she served a number of schools, and only spent up to a day per week at each school. At the time of her promotion, therefore, she had not been on the teaching staff of Lord Dufferin for about two years. Her promotion was not seen as inconsistent with the Board practice.
17Ms. Alimi also described the circumstances of the other individual identified by the applicant, Gary Crossdale. Mr. Crossdale had taught at Lord Dufferin, but had left the school to be a Vice-Principal at another school. He returned to be Principal at Lord Dufferin some three years later. Again, Ms. Alimi did not view his promotion to Principal as conflicting with the practice against internal promotions.
18Ms. Alimi confirmed that she had been instrumental in the appointment of a number of Principals and Vice-Principals within the Southwest quadrant during her time as Superintendent for that region.
SUBMISSIONS
19Part of the applicant’s written statement outlines her qualifications and experience, to support her submission that she should have been chosen as Vice-Principal at Lord Dufferin in 2006. Part of her statement draws from human rights decisions and applies statements or principles from those decisions to her circumstances to support her position before the Tribunal. She states that the Board has not shown that age is a bona fide occupational qualification (“BFOQ”) for a promotion.
20The applicant takes objection, in her written statement, to the introduction of any new reasons for not promoting her, at this stage of the Application. The statement was written in advance of the hearing on May 27 and, as it turned out, the respondents did not change or add to the position taken throughout the hearing. The evidence of Ms. Alimi was directed to her decision to rule out the applicant as a candidate for the Vice-Principal position at Lord Dufferin because of the Board’s practice against internal promotion. Her evidence in this regard was consistent with the Response, and did not raise anything new.
21The applicant reviewed the information found on the OTC’s for teachers on the Board-wide promotion list who were promoted in March of 2006. In her analysis, the great majority of teachers promoted in March 2006 across the Board and in the Southwest quadrant graduated in 1983 or later. The applicant submitted that assuming that teachers obtain their qualifications in their early 20’s, then as of 2006, an individual who graduated in 1983 (or presumably before) would be 45 years of age or older. In her submission, the statistics show that the Board applied a “requirement, qualification or factor” in its promotions process that favoured individuals with teaching qualifications from 1983 or more recently, which results in the exclusion of “older” teachers.
22In the respondents’ submission, the evidence of Ms. Alimi was consistent with the Board’s position throughout, which was that the applicant was not considered for the promotion at Lord Dufferin because of the concern about internal promotions. The candidate chosen, Ms. Neville, was not a teacher at Lord Dufferin. This is not a discriminatory criterion, nor does it have a discriminatory effect based on age. There is no evidence that the applicant’s age ruled her out as a candidate.
23In the respondents’ submission, the applicant’s focus on BFOQ is misplaced as a BFOQ is only relevant where discrimination has been established. In this case, there is no evidence that age played a role, directly or indirectly, in the decision not to select the applicant as the Vice-Principal at Lord Dufferin.
24The respondents also submit that the data the applicant relies on is incomplete and does not support her assertion that age played a role in Ms. Alimi’s decision. Not all of the individuals were appointed by Ms. Alimi, and there are others appointed who were not included in the applicant’s data. There is the raw data that the applicant is likely older than others promoted, but unless more is known about the whole group, such as how many of those are similar in age to the applicant, and the percentage of the whole group who are promoted as well as their ages, any attempt at analysis is not helpful.
DECISION
25Section 5 of the Code guarantees equal treatment with respect to employment without discrimination because of, among other things, age. The applicant alleges that the Board violated section 5 in that her age was a factor in the decision not to promote her to the position of Vice-Principal at Lord Dufferin.
26Having heard the applicant’s evidence as well as that of Ms. Alimi, I am not convinced on a balance of probabilities that the decision not to promote the applicant was because of age-related discrimination.
27Ms. Alimi testified that the reason the applicant was not considered for the position was that she was then on the teaching staff at Lord Dufferin, and there was a practice not to promote from within a school. The explanation given by Ms. Alimi was credible and not inherently discriminatory. The practice is based on legitimate concerns, as the applicant herself acknowledged. The evidence about Ms. Haines and Mr. Crossdale’s appointments subsequent to these events does not cast doubt on the genuineness of the explanation. Although they had been teachers at Lord Dufferin previously, at the time of their promotions they were not members of the teaching staff there. Their circumstances were therefore different from the applicant’s. Ms. Alimi provided the rationale for her decision at the time to the Principal at Lord Dufferin, who conveyed this to the applicant. This was well before Ms. Alimi had any reason to believe that the applicant would raise an allegation of age-related discrimination.
28There is nothing in Ms. Alimi’s evidence that suggests that the application of the policy against internal promotions to exclude the applicant from consideration was a pretext invoked to mask a discriminatory motive. There is also nothing in the applicant’s evidence that would lead me to that conclusion.
29I can appreciate that from an anecdotal perspective, the applicant has reason to feel that the Board is promoting “younger” (which she defines as under 45 years of age) teachers, based on her review of OTC’s. However, I agree with the Board’s submission that the applicant’s evidence on this must be viewed with some caution as it leaves many questions unanswered. First, the applicant’s own definition of an “older” versus a “younger” teacher does not provide an objective basis for assessing a claim of age discrimination. Second, the OTC’s may be indicators of age, but are an imprecise proxy for age. As well, this evidence does not address the ages of the candidates who were not promoted. Further, the fact that the applicant took a lengthy hiatus from teaching means that the length of her teaching-related experience places her amongst a group of teachers much younger than herself. It also suggests that teachers of a comparable age who have not taken such a hiatus may have moved through the promotion process earlier.
30I can also appreciate the applicant’s belief that she possessed valuable experience and abilities that would have made her a well-qualified candidate for the position at Lord Dufferin. Her own Principal supported her desire to be promoted. But it is not my role to second-guess whether the strength of her candidacy should have outweighed the concern about internal promotions. The question before me is whether the decision was tainted by discriminatory considerations based on the applicant’s age.
31At the end of the day, the applicant’s evidence in support of her claim of discrimination does not, taken as a whole, dislodge the clear and specific evidence of Ms. Alimi about the reason for the decision not to promote the applicant. It does not lead me to conclude that this reason was a pretext for age-related discrimination.
32I have considered the decisions the applicant referred to in her written submissions. Some of these decisions are helpful in describing general principles with respect to discrimination in employment although, of course, each case must be considered on its own facts. The decision in Kearns v. P. Dickson Trucking Ltd., 1988 CanLII 111, for example, came out of a case where the respondent did not call any evidence to support its position about a legitimate, non-discriminatory, reason for terminating the applicant’s employment, and is therefore distinguishable from the case before me. Furthermore, the concept of a bona fide occupational requirement does not apply here. This is not a case where an employer seeks to justify an otherwise discriminatory practice on the basis of a BFOQ. Rather, the Board’s position is that age was not a factor in the decision not to promote the applicant. It does not rely on BFOQ; it simply asserts that there is no evidence of discrimination.
33For the above reasons, I find the applicant has not established on a balance of probabilities that the decision not to promote her to the position of Vice-Principal at Lord Dufferin in 2006 was discriminatory and the Application is dismissed.
Dated at Toronto this 8th day of December, 2011.
”signed by”__________
Sherry Liang
Vice-chair