Francis v. Goodwill Industries EKL, 2012 HRTO 2319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Francis

Applicant

-and-

Goodwill Industries EKL and Kevin Neill

Respondents

DECISION

Adjudicator: Paul Aterman

Date: December 10, 2012

Citation: 2012 HRTO 2319

Indexed as: Francis v. Goodwill Industries EKL

APPEARANCES

Craig Francis, Applicant

Self-represented

Goodwill Industries EKL and Kevin Neill, Respondents

Pamela McLeod, 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”), alleging discrimination with respect to employment on the grounds of sex.

2The Application was filed on June 25, 2012. On August 13, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The respondents were not required to file a substantive Response. The CAD directed the parties to address whether the applicant may be able to prove a link to the ground of discrimination alleged. The CAD further provided that either party could file any cases or documents they intended to rely upon at the summary hearing no later than 14 days prior to the teleconference. The summary hearing was held on November 30, 2012.

3For the reasons which follow, I find that the Application should be dismissed as it has no reasonable prospect of success.

facts and submissions

4The applicant was hired by the corporate respondent as a Team Leader Coach in December of 2011. At the end of that month he assumed responsibility for managing the corporate respondent’s store in Chatham. On June 18, 2012 his employment was terminated on a ground that the applicant alleges was discriminatory.

5While the Application identifies sexual orientation as the ground of discrimination it is clear the applicant believes he was terminated not because of his sexual orientation but because of his sex. Specifically, the applicant notes he was the only male manager at the Chatham store managing a largely female workforce. The applicant maintains that the respondents were afraid to support him in disciplining female employees or demanding better performance from them. He alleges that it was easier for the respondents to fire him as a male manager than to support him in the more difficult and longer task of dealing with poor employee performance. He concludes from this that he was terminated because he is male.

6In support of his Application, the applicant filed a large volume of emails and other materials. Most of these consist of detailed exchanges between him and the personal respondent about the management of the store and employees. It is clear the applicant sought and received direction and advice from the personal respondent about these issues. In the applicant’s March 2011 performance evaluation the personal respondent (who is male) commends the applicant’s dedication, enthusiasm and willingness to innovate, but also cautions him about his style in communicating with and managing employees, as his manner could be interpreted negatively or be seen as intimidating.

7In June 2012, following a visit to the store, the personal respondent emailed the applicant setting out his expectations and advising the applicant to spend time in various areas of the store, working directly with employees in order to build a better rapport with staff. The applicant responded to this email by writing a long letter to the corporate respondent’s Director of Human Resources providing his version of events and complaining that the personal respondent was not supportive of him. In the letter he asserts that this lack of support undermined his authority with female employees and led them to believe they were not subject to discipline.

8As a result, a meeting was held four days later between the applicant, the personal respondent, the Director of Human Resources, and several employees from the store. The applicant provided few details about his conduct at the meeting other than to agree it became emotionally charged and that he felt singled out for blame.

9The applicant was asked not to attend the store over the weekend. The following Monday, June 18, the applicant was informed that his employment was terminated for violating the corporate respondent’s policy on workplace harassment.

10The respondents submit that the incidents the applicant points to in support of his Application are all examples of personal conflict and have nothing to do with the applicant’s sex. They note that the emails in the Application show that he was involved in conflicts with both male and female employees. Further, they note that the personal respondent, who was his immediate supervisor, and the chief executive officer of the corporate respondent are male, and that this undermines his theory that male managers are targeted by the corporate respondent.

Analysis and decision

11Rule 19A.1 reads:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

12The inquiry during a summary hearing was set out as follows 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.

13As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

14If I accept the facts as alleged in the Application, I am unable to conclude that there is a link between those facts and discrimination on the grounds of sex. I asked him during the hearing to point me to any evidence in the Application or that he could obtain that would support the conclusion that his sex was a factor in the respondents’ treatment of him as an employee or in their decision to terminate him. However, he was unable to identify specific incidents, statements or documents. Rather, he maintained that this was the only conclusion that can be drawn from the facts when they are considered in their totality.

15Assuming, as the applicant alleges, that the respondents were not supportive of him as a manager and failed to back him in disciplining employees, there is still nothing in the evidence to suggest that the applicant’s sex was a factor in those decisions. At best they amount to allegations of general unfairness.

16Further, the Application provides few details as to what happened in the culminating incident which led to his termination. Assuming, as the applicant maintains, that he acted appropriately during the June 15 meeting and that his conduct did not amount to harassment, there is still no evidence that the applicant’s sex was a factor in the decision to terminate his employment following that meeting.

17In the absence of any evidence to support his theory, the applicant’s claim that the respondents decided to terminate him because he is male is simply speculation. As the applicant has not pointed to any evidence that could link his termination to any prohibited ground of discrimination under the Code, I conclude that the Application has no reasonable prospect of success.

order

18The Application is dismissed on the basis that it has no reasonable prospect of success.