Hidalgo v. Glebova, 2011 HRTO 743

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mery Hidalgo

Applicant

-and-

Nadejda Glebova

Respondent

decision

Adjudicator: Jay Sengupta

Date: April 18, 2011

Citation: 2011 HRTO 743

Indexed as: Hidalgo v. Glebova

APPEARANCES

Mery Hidalgo, Applicant ) Mary Ellen McIntyre, Counsel

Nadejda Glebova, Respondent ) Self-represented

1This is an Application filed 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 disability, ancestry and ethnic origin.

2The applicant initially named Amore Food Group and Nadia Deeb as respondents. She then sought to amend her Application to name AFC Food Group Inc. (“AFC”) and Nadejda Glebova as respondents instead. That request was granted in Interim Decision 2009 HRTO 2179.

3In advance of the hearing into this Application, the applicant filed a Request for Order During Proceedings in which she sought, among other things, to add Michael Topolinsky, a director of the corporate respondent, as a personal respondent. The materials attached to the Request indicated that the corporate respondent, AFC, has “gone into receivership” and that “the claim against them can therefore not proceed”.

4The applicant’s Request to remove the corporate respondent was granted and the Request to add Michael Topolinsky was denied in Interim Decision 2010 HRTO 1666.

5At the commencement of the hearing, counsel for the applicant indicated that as the Application no longer involved the corporate respondent and was only proceeding against the personal respondent, Nadejda Glebova, the applicant would not be pursuing the disability-related issues raised originally, nor would the applicant be seeking lost wages, remedies for future compliance or accommodation upon return to work as part of her remedial request, if successful in establishing a breach of the Code. The remedial request was amended to an award of monetary compensation of $15,000 for injury to dignity and self-respect at the beginning of the hearing.

6Although the applicant submitted a number of witness statements in advance of the hearing date, she did not present those witnesses at the hearing, nor did she request an adjournment in order to call additional witnesses. I heard from the applicant on her own behalf and from the personal respondent.

7For the reasons that follow, the Application is dismissed.

THE LAW

8The relevant sections of the Code are set out below:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

DECISION

9The applicant self-identifies as Latin American. She was employed at AFC and its predecessor company from August 2002 until her resignation from the company in the fall of 2008. The company made and packaged food products and the applicant was employed as a machine operator and worked for a few months as a supervisor.

10The respondent, Nadejda Glebova, was a supervisor at the company. She worked primarily in what she called “the cold room”, an area in which the applicant did not ordinarily work. The respondent takes the position that the applicant reported primarily to another supervisor called Carmelina, and not to her. In fact, she says that she and the applicant had minimal contact during the time that they both worked at AFC.

11There was evidence from both parties that they worked together occasionally but that most of the time, the applicant was supervised by Carmelina rather than the respondent.

12The applicant’s claim with respect to discrimination on the basis of ancestry and place of origin, as outlined in the Application, is as follows:

There were inappropriate comments about my ability to speak English and write in English and they would make fun of me. Nadia would say she did not like Spanish people and she was trying to clean up the company by getting rid of the Spanish people. Other people have been promoted who did not work there as long as I have nor have the experience I have but are not Spanish/Latin American. Comments were made about my food – such a bad smell! “Spanish people ear like pigs”. Nadia would make comments in Russian to others and then look at me and laugh. I was blamed for things that went wrong in the company even when they had nothing to do with me.

Ability to Speak and Write English

13In testimony, the applicant clarified that “they” referred to the respondent, her own supervisor, Carmelina, and a person called Maria Rodriguez. The respondent points out that one of the people the applicant accuses of having said inappropriate things about her abilities and having made fun of her was Latin American herself.

14The applicant acknowledged that the last of those persons was someone whose ancestry and ethnic origin was the same as hers. She was unable to explain adequately why she had named the respondent personally and not the other two individuals.

15When asked what inappropriate comments were made by “them”, the applicant testified about one occasion during a four-month period when she was filling in for Carmelina as a supervisor. She was required to document certain processes and hand forms in to the respondent, who was the lead supervisor. The applicant told the respondent that she could not read or write in English and could not complete the documents. The respondent took her to the human resources office and they spoke to a person called Valerie about the applicant’s inability to fill out the forms. The applicant reports that the respondent asked “how it was possible that this Spanish woman would be working here who can’t even read or speak English”.

16The respondent denies such a conversation took place. Even if I reject her evidence and find that the event did take place, and I accept that the respondent pointed out to Human Resources that the applicant was unable to meet the requirement that she document processes and submit forms, I am unable to find that this constitutes discriminatory or harassing behaviour. The requirement that the records be kept in the language used by the business is clearly in place for reasons relating to safe food preparation and it appears that the applicant acknowledges that, during those four months, the respondent was tasked with training her to perform tasks ordinarily done by Carmelina. Having a discussion with someone from Human Resources about the applicant being unable to perform one of those tasks is not inappropriate.

17The applicant has not argued that the requirement had a differential impact on her because of her ethnic origin and ancestry and, in any event, the respondent cannot be held to account for such a requirement being put in place or for asking that the applicant comply with the requirement, given that the respondent was also an employee of the business.

Told not to Speak Spanish

18The applicant also says, and the respondent agrees, that the latter told people not to speak in Spanish on the factory floor. The respondent indicates that she was carrying out a directive from management. She and other supervisors were told to remind employees that speaking a common language while working on the factory floor was essential to prevent misunderstanding and for safety reasons. The workplace was a diverse one and she argues that she should not be held to account if the directive given to her by managers was discriminatory, although she does not believe that it was.

19The respondent was acting in her capacity as a supervisor and passing along a directive from her managers. The requirement was not devised by her and appears reasonable on its face given its connection to ensuring employees understand each other while at work. Her only role was communicating management’s wishes to employees.

Food-Related Comments

20The applicant also gave evidence of an occasion when the respondent came into the lunch room, said the food smelled bad and that Spanish people ate like pigs.

21The respondent denies the lunch room event ever took place. She says that 65 percent of the people in the company were of Latin American ancestry and she would not and could not have said something of this nature.

22The evidence given by the personal respondent, borne out by documents from AFC and uncontested by the applicant, is that the majority of employees (60-65%) of AFC were of Latin American ancestry, including members of the company’s management and ownership.

23The respondent points out that she worked at the company for 10 years and got along with co-workers of various ethnic backgrounds and it is a matter of complete shock that these accusations are being levelled at her by one person well after their employment relationship ended.

24I am unable to accept the applicant’s version of events. It seems highly unlikely that such a blatantly and aggressively rude and offensive comment could be made publicly in a workplace that was comprised predominantly of persons of Latin American ancestry without any complaints being generated or action taken. This is particularly true if the management and ownership group of the company included people of Latin American ancestry.

Comment about Getting Rid of Spanish Employees

25The respondent points out that she was an employee just like the applicant, that she had no power to “clean up the plant and get rid of Spanish employees” as she performed no human resources functions. She also states that she had no input into decisions about which employee would be promoted and cannot be held accountable for the company’s decision not to promote the applicant.

26With respect to the allegation that she did not like the applicant, she testified that at the time that she worked for AFC, she barely knew the applicant and did not have any opinion of her one way or the other. However, having had to go through the Human Rights Application process as a personally named respondent has upset her greatly and she does hold the applicant responsible for what she has had to endure.

27I find the allegations concerning a supposed plan by the respondent to rid the company of 65 percent of its workforce unsupported as I have no credible evidence before me that the respondent’s position in AFC, as one of several line supervisors, was such that she had the kind of influence that the applicant suggests.

Other Allegations

28The respondent indicates that she did not speak to others in Russian and look at the applicant or others of Latin American ancestry and laugh. Without a specific incident to comment on, she cannot add anything more to the general denial.

29Finally, she says that the applicant’s statement about being blamed for things that went wrong in the plant is also too vague for her to provide a meaningful response. It is unclear whether the applicant is suggesting that respondent was involved in any way in the applicant allegedly being blamed for things going wrong in the plant. I agree that this allegation is too broad and vague and does not require a response.

30In the circumstances, the Application is dismissed.