Martinez-Cedeno v. Martens, 2012 HRTO 2320

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dinorah Martinez-Cedeno

Applicant

-and-

Elizabeth Ann Martens

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 10, 2012

Citation: 2012 HRTO 2320

Indexed as: Martinez-Cedeno v. Martens

APPEARANCES

Dinorah Martinez-Cedeno, Applicant

Self-represented

Elizabeth Ann Martens, Respondent

Self-represented

Centennial College

Nancy Fisher, Representative

1This is an Application dated June 28, 2011 and 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 because of race and colour.

2Both the applicant and the respondent are professors in the social work program at Centennial College. The applicant alleges that during the 2010-2011 academic year, the respondent made negative or derogatory remarks about her and was encouraging or inciting students to complain about her with a view to having her removed as a faculty member at the College. The applicant alleges that this amounts to discrimination against her, and created a poisoned work environment for her, because of her race and colour. The applicant self-identifies as a Hispanic woman of colour for whom English is a second language.

3The applicant also raised her allegations internally at the College with the support of her union, the Ontario Public Service Employees Union (“OPSEU”). In June 2011, a fact-finding investigation was initiated by the College to determine if there was any validity to the applicant’s complaint. The College hired an external investigator to conduct the investigation. The external investigation concluded on September 29, 2011 with a 50-page report, and involved interviews with eight College employees and ten students. The investigator found that there was insufficient evidence to find on a balance of probabilities that the respondent’s conduct was harassment or motivated in any way by race and dismissed the complaint on a balance of probabilities. The investigation report was filed as part of the respondent’s Response to the Application.

4After reviewing the Application and Response, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6Details about the nature of a summary hearing were 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.

7The Tribunal specifically asked the applicant to address at the summary hearing whether, in light of the findings of the investigation, she had a reasonable prospect of success at any hearing of proving that her rights under the Code had been violated.

8A summary hearing in this matter was held by teleconference on July 30, 2012, and was attended by the applicant, the respondent and a representative of Centennial College. Centennial College was given notice as an “affected person” within the meaning of the Tribunal’s Rules. Given my disposition it was unnecessary to determine their ongoing status with respect to the proceeding (either as an intervenor or otherwise).

9The allegations raised by the applicant are based upon information she received from various students. In particular, the applicant’s allegations are based on information received from the following students, as set out in the Application:

a. Student 1 is alleged to have told the applicant that the respondent had been telling students to go to the Chair of the department to complain against the applicant;

b. Student 2 is alleged to have told the applicant that the respondent wanted the applicant and another instructor out of the faculty and that certain identified students were helping the respondent do that; and

c. Student 3 is alleged to have told the applicant that the respondent had been telling the students to complain about the applicant, that the respondent told students not to go to the social services program coordinator because she and the applicant are relatives, that the respondent told students that the applicant did not have qualifications and work experience to work at the College, that the respondent made derogatory comments about the way the applicant talked and her accent, and that the respondent criticized the applicant’s tests, assignments and books.

10Each of these students was interviewed as part of the investigation, and their evidence on these points is summarized in the investigation report as follows:

a. Student 1 did not recall speaking to the applicant about this, and stated that no-one had suggested that she complain about the applicant, that she had never heard a teacher say anything negative about the applicant, and that no teacher had encouraged students to complain about the applicant. She specifically stated that the respondent had not told students to complain about the applicant, and that she had not told the applicant that the respondent had done this (pp. 28-29);

b. Student 2 recalls telling the applicant and another instructor that he had heard that there were “white girls” in the class trying to get them fired. He stated that he had heard that the respondent was telling students to bring their concerns forward, but didn’t know where he had heard this and had no direct knowledge of this occurring (p. 36);

c. Student 3 states that she heard the respondent say to a group of students, “how do you think about [the applicant]?” Student 3 states that she walked away, but heard some students complaining about their grades and heard the respondent say “I feel sorry for [the applicant]”. Student 3 said that she had never heard the respondent speak negatively about the applicant, though she had heard from someone in the cafeteria that the applicant and the respondent did not get along. Student 3 states that she had never heard the respondent comment about the applicant’s accent, though she had heard from a student in the cafeteria that the applicant’s accent makes it hard to hear her. Student 3 did not recall the respondent saying that the applicant did not have sufficient qualifications. Student 3 never specifically heard the respondent tell students not to go to the applicant with complaints, though she heard this from another student (Student 4). Student 3 also states that she did not hear that the applicant and the program coordinator were related from the respondent, though she may have heard this from someone in the cafeteria (pp. 30-31);

d. The investigation also received evidence from Student 4 that she heard the respondent ask a group of students what they thought of the applicant and say that if they had concerns they should go to the “bosses”. Student 4 states that she had never heard the respondent speak poorly of the applicant during class or at other times (pp. 29-30);

e. No student interviewed stated that the respondent had ever made any negative comments about the applicant, or substantiated the allegation that the respondent was telling students to criticize the applicant’s tests, assignments, office hours, accent or anything else (p. 44); and

f. With regard to the evidence of Student 3 and Student 4, the report finds that neither of these two students knew the context in which the respondent made the comments they heard, including whether the students had initiated the discussion with the respondent (p. 45).

11In view of the fact that the applicant’s allegations are based upon the evidence of certain students and in light of the evidence given by these students to the investigator, I asked the applicant to address at the summary hearing how she has a reasonable prospect of establishing at any hearing before this Tribunal that the respondent said or did the things alleged in the Application when these allegations are not supported by the evidence of the students who are alleged to have told her what the respondent was saying or doing.

12With regard to Student 2, the applicant states that he spoke to her following his investigation interview and told her that he had felt intimidated by the way he had been pulled out of class by security to attend the interview, that he had been scared, and that he did not feel that the process was fair. While that may be, Student 2 did not tell the applicant at that time that he had any different evidence to provide than what he had told the investigator.

13The applicant states that Student 2 originally told her that the respondent wanted the applicant and another instructor out of the faculty and that certain identified students were helping the respondent do that. Student 2 told the investigator that he recalls telling the applicant and another instructor that he had heard that there were “white girls” in the class trying to get them fired, and he stated that he had heard that the respondent was telling students to bring their concerns forward, but didn’t know where he had heard this and had no direct knowledge of this occurring.

14In my view, what Student 2 told the investigator is not necessarily inconsistent with what he had told the applicant. However, likely because he was probed by the investigator as to the basis for his statement that the respondent was telling students to bring their concerns forward, Student 2 revealed that he actually had no direct knowledge of this occurring but had heard this from somewhere that he cannot recall. This is how gossip and rumours are promulgated. Someone hears something and then repeats it as fact without actually having observed it themselves and without knowing the basis upon which the person who told them the information purports to know this. Given that Student 2’s evidence is not based upon any direct knowledge, his evidence would be of little if any probative value in support of the applicant’s allegations.

15With regard to Student 3, the applicant notes that the investigation report states that English is not Student 3’s first language and that she and the investigator had some difficulties communicating. The applicant questions why the investigator did not arrange for an interpreter if he had such difficulty communicating with Student 3. In my view, this is a red herring. While the investigation report states that there were some difficulties in communicating, it does not say that the investigator and Student 3 were unable to understand each other to the extent that an interpreter was required. I note that Student 3 attends classes at the College which are conducted in English, and is apparently a very good student. I note also that Student 3 presumably was speaking in English when she spoke to the applicant and did not have the aid of an interpreter at that time either.

16I have no basis in the material or submissions before me to indicate that Student 3 would say anything different at any hearing before this Tribunal than she said to the investigator. While Student 3 had heard about some of the things attributed to her by the applicant and may indeed have shared this information with the applicant, the fact remains that, as with Student 2, Student 3 simply has no direct evidence to provide to indicate that the respondent did or said what is alleged. This is something that may not have been apparent in the context of an informal discussion in an office, but became apparent through probing by an experienced investigator and would equally be apparent at any hearing. As a result, Student 3’s evidence at any hearing would be of minimal if any probative value in support of the applicant’s allegations.

17The applicant also submits that the investigation process was tainted because the respondent spoke to other witnesses in violation of a confidentiality requirement. This issue is discussed in the investigation report. The investigator notes that in response to a question about whether she had spoken to anyone about the complaint filed against her by the applicant, the respondent acknowledged that she had spoken to three faculty members. The investigation report states that the respondent said she had not asked these individuals to be untruthful, but had just spoken with them to confirm that they would be willing to speak to the investigator as part of the investigation. This was confirmed with two of these individuals, who were interviewed as part of the investigation (the third was not interviewed). While confirming with the respondent and each witness that the fact that they had spoken about the complaint was a breach of the terms of investigation, the investigator nonetheless found that all of these witnesses had been candid and truthful in their evidence (see p. 44).

18Based upon the findings in the investigation report, it is not clear to me how the breach of confidentiality by the respondent, which involved speaking to three faculty members, can be regarded as tainting the investigation process as it relates to the evidence given by the students, which is the primary basis upon which the investigator found the complaint to be unsupported. There is nothing before me to indicate that the respondent attempted to get any witness to provide fabricated evidence in a manner that swayed the outcome of the investigation, or that she even spoke about the applicant’s complaint to any student who was interviewed. Accordingly, while this violation of confidentiality did occur, in my view it does not provide any support for the applicant having a reasonable prospect of success in proving her allegations at a hearing, particularly given that the evidence provided by the students to the investigator does not support her allegations.

19Finally, the applicant states that she was not afforded an opportunity to review the draft investigation report prior to its finalization, in violation of College policy. I understand that this is an issue that has been raised by the applicant in a grievance she has filed. It is not the purpose of this Tribunal to enforce the internal policies of an organization or institution. Rather, this Tribunal’s jurisdiction is focused on the rights enshrined under the Code. In the context of this summary hearing, the question before me is whether, in light of the findings of the investigation report, the applicant has a reasonable prospect of establishing at a hearing that her Code rights were violated. While she may not have had an opportunity to respond to a draft report, she has had a full opportunity to make submissions to this Tribunal to identify any errors or omissions in the investigation report that would cause me to decide that its conclusions were unreliable or that evidence relied upon to support the investigator’s conclusions was incorrect or misapprehended. Nothing in the material or submissions before me supports such a determination.

20Accordingly, for all of the foregoing reasons, I am not satisfied that the Application has a reasonable prospect of success. The Application is therefore dismissed.