Donna Dixon v. The Corporation of the City of Mississauga, 2012 HRTO 1383

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Dixon

Applicant

-and-

The Corporation of the City of Mississauga

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: July 13, 2012

Citation: 2012 HRTO 1383

Indexed as: Dixion v. Mississauga (City)

appearances

Donna Dixon, Applicant

George Brown, Representative

The Corporation of the City of Mississauga, Respondent

Katherine Ford and Melissa McGugan, Counsel

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”), in which the applicant alleges that the respondent discriminated against her with respect to employment because of disability. Specifically, the applicant claims that the respondent discriminated against her when it disciplined her on a number of occasions and when it ultimately terminated her employment in September 2009.

2On March 15, 2012, the applicant filed a Request for Order During Proceedings indicating that she wished to amend her Application. She also provided the Tribunal with an amended Application, reflecting the proposed changes.

3The respondent filed a Response to the Request. It did not object to the amendment limiting the claim of discrimination to only the protected ground of “disability”, the original Application having cited several protected grounds; nor, did it object to the applicant’s request to amend the amount of remedy being claimed. However, it did object to any new allegations of discrimination that were not particularized in the original Application.

4At the commencement of the hearing, having expressed the view that the amended Application generally clarified and further particularized the alleged discrimination in the original Application, I ruled that the amended Application would be accepted and would replace the original Application.

OVERVIEW

5Mississauga Transit, which is part of the respondent municipality, employed the applicant as a full-time transit operator from October 1995 until her termination in September 2009. The applicant alleges that the termination of her employment and the discipline leading up to it were discriminatory on the basis of disability. Specifically, the applicant alleges that the respondent disciplined her and then terminated her employment because of work-related misconduct that was related to her menorrhagia, a menstrual disorder causing excessive bleeding during menstruation. She further alleges that the respondent failed to accommodate her needs related to her alleged disability.

6The respondent filed a Response to the Application which denied the allegations of discrimination. The respondent admits that it disciplined the applicant and then terminated her employment because of work-related performance issues, but denies there was a nexus between the applicant’s alleged disability and the work-related misconduct for which she was disciplined and ultimately terminated by the respondent.

reasonable prospect of success

7The hearing of the Application took place on June 12, 13 and 14, 2012. I heard the applicant’s evidence and the evidence of the applicant’s only witness, Roydel Linton, a retired Mississauga Transit operator. At the conclusion of the applicant’s case the respondent, citing Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, 2011HRTO 1777, requested that the Application be dismissed on the basis that it has no reasonable prospect of success. After giving the parties an opportunity to make submissions on this issue, I adjourned the hearing to consider the request.

8Having considered the evidence of the applicant and her only witness and the documents filed by the parties, I am of the view that the respondent disciplined the applicant and ultimately terminated her employment in response to legitimate concerns about the applicant’s performance as a transit operator. Moreover, the applicant called no evidence that could establish that the work performance issues for which she was disciplined and terminated were the result of or in any way related to her alleged disability. In my view, for reasons provided below, there is no reasonable prospect that the respondent’s proposed evidence would disclose a link between the allegations of discrimination or the claim of disability and the decision to discipline and terminate employment.

evidence of the Applicant

9On November 15, 2006 the applicant was issued a one-day suspension from work because she allowed another employee to use her identity card to punch her in for her shift. According to the applicant, her hands were full and she was struggling to punch her card so she asked her friend who was standing next to her to punch the card for her.

10On or around July 17, 2007 the applicant was driving her bus out of the terminal garage when she parked it in a restricted area. A supervisor reprimanded her for parking in the restricted area and although she was disciplined for this conduct, the discipline was ultimately withdrawn and it did not remain on the applicant’s record. According to the applicant, she parked in the restricted area because she had a sudden need to use the washroom.

11In or around September 2007, the applicant was suspended from work for being 15 minutes late for work. According to the applicant she was in fact in the building but forgot to punch in.

12In or around the same period the applicant was disciplined for not showing up for an overtime shift. According to the applicant, while she did apply for the overtime shift, she was never notified that she was scheduled for the shift. She testified that the day before the shift she had checked the list but her name was not on it.

13In or around March 22, 2008 the applicant was issued a five-day suspension because she was wearing earphones and listening to music while driving her bus. The applicant concedes that she was wearing earphones while driving but claims that they were not connected to a phone or a MP3 player. According to the applicant there is a tunnel at the subway stop where all drivers enter to access the passenger waiting ramps. She claims that the noise in the tunnel is very loud and that she had to wear the earphones to protect her ears from the noise because at the time she had an ear infection.

14On or around March 28, 2008 the applicant provided the respondent with a doctor’s note dated March 28, 2008 which stated: “Donna Dixon has problems with loud noise bothering her ears, so she wears ear plugs driving through tunnels.”

15On or around August 13, 2008 the applicant was issued a 10-day suspension for failing to come to a complete stop at the stop sign upon leaving the bus garage. The applicant maintains that she did make a complete stop because she can remember at least three cars passing while she was waiting to make the right turn on to the street.

16On October 15, 2008 the applicant’s employment was terminated because she reported to work six minutes late. According to the applicant there had been a power outage in her area which caused her alarm clock to lose power and not go off at her designated wake up time. Her union grieved the termination. The applicant was returned to work on the terms and conditions set out in a Last Chance Agreement that was signed by the applicant, the respondent and the union. The Agreement provided that the respondent had the automatic right to terminate the applicant for cause if she breached any conditions of employment as set out in the Agreement. One of those conditions was that the applicant had to abide by the employer’s Rules and Regulations, which included following designated routes and schedules.

17On the morning of September 18, 2009, during the last run of her shift, the applicant called the control office to advise that she was off her designated bus route. The applicant testified that she had made a wrong turn and did not know where she was. She indicated that she managed to find her way back to her designated route by making a brief detour but in so doing she missed some bus stops along her route. The applicant testified that after dropping off her last passenger, instead of completing the designated route, she put the bus out of service and drove directly to the bus garage where she completed her shift. According to the applicant this was necessary since she had fallen behind her schedule due to the off route incident.

18On returning for her afternoon shift on the same day, the applicant was told by her supervisor that she was being taken off her afternoon shift and was asked to fill out an incident report with respect to her off route incident that morning.

19On September 21, 2009 the applicant was advised that an investigation was taking place regarding the off route incident and that she would be placed on a paid leave of absence pending the investigation.

20Sometime between September 19, 2009 and September 25, 2009 the respondent received from the applicant a doctor’s note dated September 18, 2009 stating that the applicant “suffers from menorrhagia (heavy menstration (sic)) secondary to her uterine fibroids. She has been menstrating (sic) since Monday 14/9/09, and has been feeling unwell.”

21On September 30, 2009 the applicant met with her supervisor and a union representative and was advised that her employment was being terminated effective immediately as a result of her failure to comply with the terms of the Last Chance Agreement. Specifically, the respondent took the position that having gone off route and having failed to complete her designated route on September 18, 2009, the applicant had breached her obligation under the Last Chance Agreement.

22The applicant grieved the termination but it was denied at stage 3 of the grievance procedure. The union determined that it would not refer the termination grievance to arbitration.

analysis

23The Application relates to sections 5, 9, 11 and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

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

7. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

24For the purpose of this analysis I am assuming, without making a finding to that effect, that menorrhagia is a disability within the meaning of the Code.

25There was a dispute between the parties as to when the respondent knew or ought to have known that the applicant had menorrhagia. In my view, however, the timing is not important. It is not enough for the applicant to show that the respondent knew or ought to have known that she had menorrhagia. That alone would not be sufficient for the applicant to establish discrimination on the basis of disability.

26Section 5 of the Code provides a right to be free from discrimination “because of disability”. Thus, in order to make a claim of discrimination under the Code the applicant would have to establish a causal connection or nexus between the disadvantageous treatment that she complains of in her Application (i.e. her discipline and subsequent discharge by the respondent) and her menorrhagia. See, for example, Fleming v. North Bay 2010 HRTO 355. If the applicant cannot establish a link between the disadvantageous treatment in question and her disability, she cannot succeed in her claim that the respondent discriminated against her contrary to the Code, regardless of the state of the respondent’s knowledge with respect to the applicant’s menorrhagia. This also applies to the applicant’s claim that the respondent failed to accommodate her disability-related needs. The duty to accommodate does not arise unless the applicant first establishes that the conduct for which she was disciplined was related to disability.

27Apart from her assertion that all of the conduct for which she was disciplined and/or terminated by the respondent resulted from the symptoms of menorrhagia, the applicant has provided no evidence, medical or otherwise, that the conduct in question was in fact related to or caused by menorrhagia.

28The March 28, 2008 doctor’s note that the applicant provided to the respondent indicates that the applicant “has problems with loud noise bothering her ears…”.There is no mention of menorrhagia or any suggestion the wearing of ear plugs was in any way related to menorrhagia.

29The September 19, 2009 doctor’s note that the applicant provided to the respondent does indicate that she “suffers from menorrhagia”, and that she felt “unwell” on the date on which she breached the conditions of her Last Chance Agreement. However, nothing in the note indicates that the applicant’s work-related misconduct was related to and/or caused by menorrhagia.

30The medical note of March 28, 2008 and the medical note of September 19, 2009 were issued by the same doctor. It may have been helpful to have heard from this doctor. The applicant had originally listed him as one of her witnesses however he ultimately did not appear at the hearing and the applicant did not summons the doctor to present evidence.

31The medical evidence adduced by the applicant thus falls far short of the sort of evidence required to prove the disadvantageous treatment the applicant experienced was related to menorrhagia.

32Moreover, neither the applicant or her other witness provided any other evidence upon which I might find a link between the conduct for which the applicant was disciplined and terminated and the applicant’s alleged disability. The applicant’s assertion that all these incidents were related to her menorrhagia is not by itself sufficient to establish that the conduct for which she was disciplined and terminated was causally related to menorrhagia. Nor is it conceivable that the respondent’s evidence will be of benefit to the applicant in that regard.

33The necessary nexus between the applicant’s disability and the misconduct for which she was disciplined and ultimately terminated has not been established on the applicant’s evidence. I am satisfied, having considered the respondent’s pleadings, witness statements and documents relied upon that there is no reasonable prospect that it will be established by the respondent’s evidence. Thus, in my view the applicant has no reasonable prospect of establishing that the respondent discriminated against her on the basis of disability.

order

34The Application is dismissed.