Shettleworth v. GAP (Canada) Inc., 2012 HRTO 1026

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Shettleworth

Applicant

-and-

GAP (Canada) Inc., Angela Mercey, Anthony Hastings, Sylvia Dziedzic, Meagan Gauley and Shaunak Sushila

Respondents

INTERIM decision

Adjudicator: Jennifer Scott

Decision Date: May 22, 2012

Citation: 2012 HRTO 1026

Indexed as: Shettleworth v. GAP (Canada) Inc.

WRITTEN SUBMISSIONS

Andrea Shettleworth, Applicant ) Self-represented

GAP (Canada) Inc., Angela Mercey, )

Anthony Hastings, Sylvia Dziedzic, ) Ryan Wozniak, Counsel

Meagan Gauley and Shaunak Sushila )

INTRODUCTION

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 in employment on the basis of race. The applicant self-identifies as black. At the time of the Application, the applicant was a part-time sales associate at Banana Republic at Mississauga Square One. Banana Republic is part of the GAP (Canada) Inc. (the “GAP”).

2The applicant gave evidence in support of her Application on October 12, October 13, November 22, 2011 and January 12, 2012. The applicant did not call any additional evidence and her case was concluded on January 12, 2012.

3The parties agree the applicant’s case consists of the following allegations of race-based discrimination:

(a) Differential treatment on the basis of race in how the applicant’s complaints against other employees were dealt with by her employer compared to how the complaints of other employees were dealt with by the employer. The complaints relied upon by the applicant are as follows:

• The applicant’s complaint against Iyesha Smith on December 17, 2009

• The applicant’s complaint against Shaunak Sushila on July 7, 2010 for an incident on June 23, 2010

• The complaint against the applicant regarding an alleged homophobic slur made on February 18, 2009

• The complaint against the applicant by Meagan Gauley in July 2009

• The complaint of Lynsay Forgione against a third party on December 17, 2009

(b) Differential treatment because of race when the applicant’s hours of employment were reduced in October 2009

(c) Differential treatment because of race when the applicant was denied benefits in July 2010

(d) The applicant was disciplined on June 11, 2010 when she received a final written warning, suspended on September 16, 2010 and subsequently terminated on September 21, 2010 as a form of reprisal.

4By Case Assessment Direction dated January 18, 2012, the applicant was directed to provide written submissions on whether her allegations of discrimination had a reasonable prospect of success by February 3, 2012. This date was subsequently extended to February 8, 2012 by the Tribunal. The respondents were directed to provide their submissions by February 29, 2012. This date was extended to March 16, 2012 because of the extension granted to the applicant.

5The applicant failed to provide her submissions. The respondents provided their submissions on March 16, 2012.

6By Case Assessment Direction dated April 4, 2012, the applicant was directed to advise the Tribunal by April 11, 2012 whether she intended to participate in the proceeding. The Tribunal advised the applicant that if she failed to respond by this date, her Application would be dismissed. The applicant failed to meet this deadline.

7On April 23, 2012, the applicant filed her submissions on whether her allegations of discrimination had a reasonable prospect of success. Her submissions were 46 pages in length.

REQUEST TO DISMISS FOR DELAY

8On April 25, 2012, the respondents delivered a Request for Order During Proceedings seeking a dismissal of the Application because of the applicant’s failure to meet the timelines set out in the Case Assessment Directions summarized above. The respondents also relied on the applicant’s failure to meet the timelines for her pre-hearing disclosure obligations, which was the subject of an earlier Request for Order During Proceedings.

9The Tribunal ruled on the applicant’s failure to meet the timelines for her pre-hearing disclosure at the commencement of the hearing. That ruling will not be revisited. The sole issue on this Request for Order is whether the Application should be dismissed because of the applicant’s failure to provide her reasonable prospect of success submissions and her failure to advise the Tribunal whether she intended to participate in the proceeding by the deadlines set.

10While I am sympathetic to the frustration experienced by the respondents because of the applicant’s failure to meet the deadlines, it is evident from the applicant’s submissions that she took a great deal of time preparing them. The applicant is not a lawyer and she obviously spent a significant amount of time researching the law. Her failure to meet the timeline, which was agreed to by the applicant at the close of her case, is not acceptable. However, there is no prejudice to the respondents resulting from her delay. The purpose of the submissions is to help me determine whether all or some of the allegations of discrimination should be dismissed as having no reasonable prospect of success. The delay in providing the submissions has resulted in a delay of this determination and nothing more.

11The applicant’s submissions contain allegations that go beyond the complaints agreed to and summarized by the parties in paragraph 3 above. The additional allegations will not be considered.

12In these circumstances, I will consider the parties’ submissions on whether the Application should be dismissed in whole or in part because the allegations of discrimination described in paragraph 3 do not have a reasonable prospect of success.

ALLEGATIONS OF DISCRIMINATION

Differential Treatment in Responding to Complaints

13The applicant alleges that her workplace complaints were responded to differently from the complaints of her co-workers who are white. She believes her race is a factor in the differential treatment.

Applicant’s Complaint Against Iyesha Smith

14The applicant testified that on December 17, 2009, she was shoulder-checked by a co-worker, Iyesha Smith (“Smith”), near the back of the store. The applicant complained to Anthony Hastings (“Hastings”), a human resources manager, that evening. The applicant spoke with Hastings on December 18, 2009 and met with him on December 22, 2009. She was advised by Hastings that Smith had been moved to another store location pending completion of his investigation.

15The applicant met with Hastings on December 29, 2009 to get the results of his investigation. Hastings advised the applicant her complaint was not substantiated because of the different versions of what occurred and the absence of any independent witnesses. Hastings advised the applicant that Smith had alleged she was standing in the aisle when the applicant refused to give way and the applicant walked right through her. In light of the conflicting accounts, Hastings advised the applicant no determination could be made.

Applicant’s Complaint Against Shaunak Sushila

16On June 23, 2010, the applicant was approached by a co-worker Isabella Warzecha and was told that another co-worker, Shaunak Sushila (“Sushila”), had commented to Warzecha that she would be working with the applicant and to “stay away”. On July 7, 2010, the applicant submitted a letter to the store manager Sylvia Dziedzic (“Dziedzic”) complaining about this conduct. The applicant met with Angela Mercey (“Mercey”) on July 12, 2010 to discuss her complaint against Sushila.

Complaint Against the Applicant for an Alleged Homophobic Slur

17On February 20, 2009, the applicant was called into a meeting with Hastings, Mercey, and Dziedzic to discuss a complaint against her by a co-worker. The co-worker alleged the applicant made the remark “you are so gay” on February 18, 2009. The applicant testified that during the meeting she was reminded of the GAP’s zero tolerance policy and was written up. The applicant testified further that Hastings advised the applicant the warning would be taken off her file after one year. The applicant does not know if the warning remains in her file.

Complaint Against the Applicant by Meagan Gauley

18The applicant testified that in July 2009, Meagan Gauley, the customer service experience manager, complained the applicant was aggressive, rude and intimidating towards her. The applicant met with Hastings and Mercey to discuss the complaint. The applicant was told the complaint would be placed in her file.

Complaint of Lynsay Forgione Against Two Customers

19The applicant testified that on December 17, 2009, a co-worker Lynsay Forgione (“Forgione”) complained to the GAP’s management that two customers had threatened her in the store. A representative from GAP’s security department arrived at the store and escorted Forgione to her car. On cross-examination, the applicant conceded that she did not witness Forgione’s interaction with the customers and did not witness Forgione being escorted to her vehicle.

20During cross-examination of the applicant, counsel for the respondents put to the applicant that during the past five years of her employment, over 30 complaints had been filed against her by 23 different employees at Banana Republic. The applicant did not deny this claim. The evidence indicated that many complaints had been filed by the applicant against her co-workers and numerous complaints had been filed by her co-workers against the applicant.

21It is important to note that the applicant’s complaints against her co-workers are not human rights complaints: she does not allege that Smith and Shushila discriminated against her. The applicant’s human rights complaint is the alleged differential response by the employer to her complaints when compared to the employer’s response to the complaints of white employees.

22The applicant has failed to establish that her complaints were treated differently. Both of her complaints against her co-workers were responded to quickly by her employer. Similarly, the complaints of the white co-workers were also responded to promptly by the employer.

23The applicant relies on the GAP’s Employee Handbook which sets out the complaint procedures for complaints of discrimination and harassment. It does not appear that this policy applies to the non-discrimination complaints filed by the applicant. The title of the policy is “Equal Opportunity Employment/Anti-Discrimination and Harassment Policy”.

24It is clear from the evidence that there were difficult interpersonal relations at the workplace between the applicant and her co-workers. The applicant believes she was perceived to be hostile, intimidating and threatening because of stereotypes involving black women and these stereotypes influenced the handling of her complaints.

25While I do not doubt the sincerity of the applicant’s belief that her complaints were responded to differently because of her race, the evidence before me does not show differential treatment nor does it draw the necessary to link to found a complaint of discrimination. The applicant’s belief alone is not a sufficient basis to establish a link between her race and differential treatment in the workplace.

Reduction in Hours in October 2009

The applicant adduced no evidence to support her allegation that her work hours were reduced in October 2009 because of her race. The applicant testified that because her hours had surpassed a threshold of 500 hours, her hours were cut to prevent full-time employment status.

Denied Benefits in July 2010

26The applicant was a part-time employee with Banana Republic. In April 2010, she was advised her employment status had changed and she was entitled to benefits. This notice was in error. Because the applicant was a part-time employee she was not entitled to benefits. The failure to provide benefits was related to her employment status, not her race.

27The purpose of this decision is to determine whether the above allegations of discrimination have a reasonable prospect of success. If so, they must be responded to by the respondents. If they have no reasonable prospect of success, the respondents are not required to call evidence in response. The test for determining whether there is a reasonable prospect of success of an Application was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

28Having heard the applicant’s evidence, as well as the parties’ respective arguments, it is clear to me that the applicant has no reasonable prospect of success in proving that: (a) her complaints were responded to differently because of her race; (b) her hours were cut because of race and (c) she was denied benefits because of race. There is no evidence before me to link the applicant’s race with the reduction of her hours and the denial of employment benefits. With respect to her complaints against her co-workers, there is no evidence of differential treatment. Her complaints were responded to quickly by her employer. The fact that they were not substantiated does not constitute differential treatment. There may have been different outcomes due to the nature of the complaints themselves and the sheer volume of complaints filed between applicant and her co-workers.

Reprisal

29The applicant filed her Application with the Tribunal on July 8, 2010. The application was provided to the respondents on August 24, 2010. The applicant’s employment was suspended on September 16, 2010 and terminated on September 21, 2010.

30The applicant’s employment was terminated for working off the clock – working when she should have been on break - on September 9, 2010 and for giving away discount coupons on September 8 and 9, 2010.

31The applicant testified that she had worked off the clock before and that it was a practice condoned by management. She stated she worked off the clock on October 24, 2008, September 24, 2009 and December 17, 2009 with the knowledge of management. She stated further that she had been given permission by her manager to work off the clock on September 9, 2010. The applicant testified there were no clear guidelines about working off the clock.

32The applicant testified further that her manager had approved her giving out discount coupons on September 9, 2010 and that she had not given out coupons on September 8, 2010. The applicant stated other employees were giving out coupons on September 9, 2010 and were not disciplined for doing so.

33In light of the applicant’s evidence and the timing of the suspension and termination in relation to the filing of the Application, I cannot conclude the applicant’s reprisal allegation has no reasonable prospect of success.

34The hearing will proceed on the sole allegation of whether the applicant’s employment was terminated in reprisal for filing her Application.

35The Tribunal will schedule two days for the continuation of the hearing, including final argument, on the issue of reprisal alone. I am seized.