Maysadis Meikle v. Mississauga Seating Systems, 2012 HRTO 152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maysadis Meikle Applicant

-and-

Mississauga Seating Systems, a division of Magna Seating Systems Inc. Respondent

-and-

CAW-Canada, Local 1256 Intervenor

interim decision

Adjudicator: Douglas Sanderson Date: January 19, 2012 Citation: 2012 HRTO 152 Indexed As: Meikle v. Mississauga Seating Systems

APPEARANCES

Maysadis Verina Meikle, Applicant ) Natalie Meikle, Representative Mississauga Seating Systems, a division ) Laura Karabulut, Counsel of Magna Seating Systems Inc., Respondent ) CAW-Canada, Local 1256, Intervenor ) Alana Mihalj, Counsel

1The applicant filed this Application on February 19, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, disability and reprisal. By Case Assessment Direction (“CAD”) dated November 3, 2011, the Tribunal ordered a Summary Hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed and whether portions of the Application are untimely. The Summary Hearing took place on November 22, 2011.

The Application

2The applicant alleges that she was assaulted by a co-worker while at work on July 21, 2008. She reported the incident to the plant superintendent and indicated she wanted to involve the police. The superintendent said that he would handle the matter, but when nothing happened, she spoke with her union representative. According to the applicant, management took no action regarding the situation over the next several days, although senior members of management were made aware of the incident. The applicant therefore decided to call the police to address the situation. The applicant tried to use the respondent’s internal processes, but ultimately the applicant felt that management did not deal with the incident in an appropriate manner.

3The applicant has documented physical restrictions due to an injury at work and had been assigned modified duties in the Inbound Department to accommodate her. On March 9, 2009, the applicant was removed from her position and was left without an assigned position for approximately a week and a half. The applicant alleges that she was virtually ignored and others were assigned her modified position. She also alleges that the plant manager harassed her and intimidated her after she spoke to a head office representative about incidents of unfair treatment. On April 22, 2009, the applicant alleges that another employee was allowed to take “second break” to be with his friends, although she was supposed to take the second break. She returned to her modified position on April 23, 2009, with the help of the union

4On May 13, 2009, the applicant, accompanied by union representatives, met with the general manager and the applicant expressed her view that management had treated her differently since she reported the alleged assault to the police. The general manager reviewed the situation and reported back to the applicant that the managers did not believe they treated her differently, but an investigation would be initiated.

5In late May and early June 2009, the applicant alleges that managers harassed her by asking her if she was wearing safety shoes without reason and accused her of not wearing proper shoes. In particular, the applicant recounted a situation where she believed M.S., a superintendent and Carm, a supervisor, tried, unsuccessfully, to “set her up” for discipline for not wearing safety shoes.

6It appears the applicant sought the assistance of both the intervenor and respondent to investigate her allegations. The applicant included a document dated September 1, 2009 entitled “HUMAN RIGHTS INVESTIGATION, Investigator’s Report” (the “report”) with the Application. The document indicates the applicant approached the intervenor to investigate her concerns on or about August 13, 2009. The report appears to be preliminary in nature because the investigators spoke only to the applicant and found that further investigation of her allegations was warranted. According to the report, the applicant offered the following examples of racial discrimination and harassment:

1. She felt that management did not treat her allegations of assault seriously because she is black and the alleged perpetrator is white;
2. A few months prior to the alleged assault two persons of colour had an argument in the cafeteria and were subsequently fired;
3. An employee of colour was sent home for not having his safety shoes, but a few days earlier a white employee was sent to the cafeteria until he was provided with a manager’s safety shoes; and,
4. The applicant alleged that race-related preference was applied when her modified job assignment was given to another employee and when her pre-assigned break time was modified to accommodate another employee.

The report also concluded that there was a basis for further investigation of other allegations. The applicant stated that the plant manager tried to intimidate her after she spoke to a head office representative about perceived unfair treatment. The applicant alleged that a superintendent, M.S., tried to “set her up” for discipline for not wearing safety shoes.

7The applicant also included an e-mail message from Dave Hansen, a Human Resources Manager, to the applicant’s sister, dated September 23, 2009. The message reports Mr. Hansen’s finding regarding a written complaint filed by the applicant (which was not included with the Application). The message summarizes the process Mr. Hansen followed to investigate the applicant’s concerns and states his conclusion that the evidence did not support allegations of racism.

Summary Hearings

8The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Submissions

9At the summary hearing, the applicant submitted that her supervisors were well aware of her work related injury and physical restrictions resulting from it. Nonetheless, she was removed from her modified duties, approved by her physician, and assigned duties not consistent with her restrictions. Specifically, she noted that she had be assigned work in the Kitting area where she found that she could not perform the work required and it irritated her injury. Management did not act for some time and the involvement of the union ergonomist was required to rectify the situation.

10The applicant stated that she believed that the safety shoe checks amounted to harassment because she was accused of changing her shoes without any basis in fact. The applicant also clarified that one of the individuals who questioned her about her safety shoes was a co-worker who had no authority over her. She explained that having co-workers inspect safety shoes for management is not the normal procedure and she submitted that this practice also amounted to harassment.

11The applicant submitted that the respondent dealt with the assault on her in an unsatisfactory manner and began to describe the deficiencies in their approach and inconsistencies in their account of how the allegation was managed. At this point of the summary hearing, I asked the applicant how the respondent’s investigation of the alleged assault was linked to a prohibited ground of discrimination under the Code. I noted that a workplace assault was a very serious matter, but not necessarily a human rights issue. Rather, a workplace assault and the investigation of it would normally be a health and safety matter without evidence linking either the assault or the investigation of it to a prohibited ground of discrimination. The applicant responded that she could not point to any link “at this time”. I then advised the applicant that the summary hearing might be the only opportunity she would get to make submissions on this point, but she did not indicate how the investigation of the alleged assault was linked to the Code.

12The applicant referred to the investigation conducted by the union, which she submitted supported her allegations. Finally, the applicant stated that she had a good relationship with superintendent S.M. prior to the assault, but that after finding out about her complaint, management in general, and superintendent M.S. in particular, treated her very differently. In summary, she stated that her Application was mostly based on reprisal for enforcing her rights, including her rights under the Code.

13The respondent submitted that the Application amounts to allegations of reprisal because she complained of a workplace assault. The respondent submitted that workplace violence is a health and safety matter, not a human rights issue. Therefore enforcement or pursuit of the right to a safe workplace does not come within section 8 of the Code, which prohibits reprisals for enforcing one’s human rights.

14The respondent further argued that the Application is comprised of allegations regarding a number of workplace disputes and the applicant’s dissatisfaction with the manner in which the respondent dealt with them. The respondent submitted that the applicant tried to link these disputes to her race, but provided no evidence that race played any part in the incidents of which she complains. Her allegations therefore are no more than bald statements. The respondent further submitted that the fact that the applicant is racialized does not, in itself, lead to an inference of discrimination. The respondent noted that the investigation conducted by the intervenor was incomplete, since the investigators only spoke to the applicant, and is not evidence itself.

15The respondent submitted that the applicant’s concerns regarding accommodation are not about discrimination, but about her preference of job assignments. The respondent did not dispute the applicant’s need for accommodation. The applicant is not alone in this, as about 14-15% of the approximately 400 employees working in the respondent’s facility require accommodation with modified duties. The respondent noted that it is required to accommodate employees, which does not mean that it must grant their preferences. In this case, the respondent reassigned the applicant to provide accommodation for another employee in the modified position the applicant had been performing. The applicant was dissatisfied with this assignment and refused to perform the duties assigned to her. The respondent asserts that the applicant never stated that the accommodation provided her was inadequate, but, in any event, the applicant was returned to her original modified position a short time later.

Analysis and Decision

16Section 5 of the Code states as follows:

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.

17Heath and safety matters, such as the investigation of workplace violence, are not prohibited grounds of discrimination with respect to employment or any other social area under the Code. The applicant stated that the respondent did not deal with her assault complaint properly, but pointed to no evidence that she had or which was reasonably available to her that would link the investigation to prohibited grounds of discrimination. The applicant pointed to the investigation conducted by the intervenor, but in my view the allegations set out in the report do not assist her. The assertion that management did not treat her complaint seriously because she is black and the alleged perpetrator white is a bald allegation. The applicant described no evidence of differential treatment, e.g., of management dealing with a health and safety complaint from a non-racialized person in a more proactive and thorough manner. The allegations regarding the dismissal of racialized employees and differential treatment regarding safety shoes have no apparent connection to the investigation of the assault complaint. These allegations relate to entirely different subject matter and there is no indication that the managerial personnel involved were also those that dealt with her complaint such that it might be possible to establish a pattern of race based differential treatment. The allegation that her modified duty position was assigned to another employee because of racial preference is also a bald assertion. Accordingly, the applicant pointed to no evidence that would bring the manner in which the respondent dealt with the assault allegations within the Tribunal’s jurisdiction. Therefore, these allegations have no reasonable prospect of success and are dismissed. In these circumstances, I need not determine whether they are untimely.

18The applicant also alleged that the reassignment of her modified duties, leaving her with no work and changing her break time amounted to discrimination because of race, but she did not provide any particulars in the Application regarding why she thinks her race was a factor. At the summary hearing, the applicant pointed to the report prepared by the intervenor, which records the applicant’s belief that her modified duties and break time were re-assigned because of racial preference. Again, this statement is a bald assertion. The fact that her duties or break time were assigned to employees of a different race or colour is not sufficient, in itself, to infer that race or colour was a factor in the decision. Moreover, the Application indicates the applicant believed this differential treatment, particularly by superintendent M.S., was the result of her reporting the alleged assault to the police.

19As noted, the report records an incident relayed by the applicant of a racialized employee being treated differently than a white employee when they did not have their safety shoes. Accordingly, the applicant presented some evidence of differential treatment related to race regarding safety shoes in her workplace. The applicant, however, did not describe how that evidence of that incident – which did not involve her – could establish that she was subject to racial discrimination and harassment. For example, there is no indication that the same personnel who allegedly harassed the applicant regarding her safety shoes were the same people who allegedly sent a racialized employee home when he did not wear safety shoes and allowed a white employee to stay at work. For that matter, there is no indication that it was the same managers who required the racialized employee to go home and allowed the white employee to stay at work. Without some evidence connecting the applicant’s experience to this alleged incident incident, I do not believe the applicant has a reasonable prospect of proving differential treatment because of race in connection to the incidents regarding her safety shoes. The applicant was required to point to evidence that would link the respondent’s actions to the prohibited grounds of discrimination cited in the Application. In my view, she has not met this requirement.

20Section 8 of the Code states as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

21The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878, at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

22The Application contains no assertion that the applicant attempted to enforce a right under the Code. In the Application, the applicant asserts that she experienced retaliation because she complained about a workplace assault. Section 8 of the Code prohibits reprisals against people who attempt to enforce their human rights under the Code. Workplace violence is a health and safety (and possibly criminal) matter; therefore, a complaint of workplace violence cannot come within the ambit of section 8 unless the complaint is also a human rights complaint, which is not the case in this Application. The applicant complained of human rights violations to the respondent and intervenor in the summer of 2009, which is after the alleged incidents of reprisal occurred. Consequently, there is no evidence that could link the alleged incidents to any prior claim or attempt to enforce the applicant’s human rights. Therefore, there is no reasonable prospect that the applicant will be able to prove that she was subject to a reprisal under the Code.

23While the applicant does not have a reasonable prospect of proving that the change in her modified duties was a reprisal, I am satisfied that the applicant may be able to establish that the change in her modified duties amounted to a breach of the respondent’s duty to accommodate her. The respondent is correct that it must accommodate needs, not preferences, and it is ultimately the employer who determines the nature of accommodative measures. Accordingly, assigning the applicant a different position is not necessarily problematic. However, the applicant stated that the work the respondent assigned her was not consistent with her documented restrictions and she was left without work or direction for extended periods of time. The respondent disputes this and submitted that the work assigned to the applicant was appropriate, but not to the applicant’s liking and, in any event, the respondent returned the applicant to her original modified duties shortly. In a summary hearing, however, I am not called upon to weigh and assess evidence. Rather, the applicant pointed to evidence that, if established, could amount to a breach of the duty to accommodate and a hearing is required to determine this issue. It should be noted that my conclusion that I cannot find that there is no reasonable prospect of success on this issue is not an assessment of the merits of the Application or the respondent’s Response to the allegations.

24In my view, the applicant has not established a reasonable prospect of success regarding all but one of her allegations in this Application. The exception is the allegation that the respondent breached its duty to accommodate her when it assigned her different modified duties that were not consistent with her restrictions.

Order

25The Application is dismissed with the exception of the applicant’s allegations that the respondent’s reassignment of her modified duties breached its obligation to accommodate her. The Registrar shall schedule a one-day hearing to consider this issue.