McNee v. Coca Cola Bottling Company, 2012 HRTO 2339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanford McNee

Applicant

-and-

Coca Cola Bottling Company

Respondent

DECISION

Adjudicator: Naomi Overend

Date: December 13, 2012

Citation: 2012 HRTO 2339

Indexed as: McNee v. Coca Cola Bottling Company

APPEARANCES

Stanford McNee, Applicant

Ayoob Khan, Representative

Coca Cola Bottling Company, Respondent

Evan Van Dyck, Counsel

Introduction

1The applicant, Stanford McNee, alleges that his supervisors treated him in a disrespectful manner on two occasions. Although, nothing of an overtly racist nature was said on either occasion, the applicant asserts that I can infer that the manner in which he was treated was based on his race, colour, place of origin and ethnic origin. The applicant self-identifies as being a black male of Caribbean origin.

2The specific allegation that the applicant was spoken to in a demeaning tone is set out in his Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application, which was filed on April 23, 2010, contained a number of other allegations dating back to 1999 concerning his earlier failure to be hired to a full-time position, a termination of his employment in 2004 and the implementation of the agreement reached in 2005 setting out the terms of his reinstatement. These allegations were dismissed as being untimely in Interim Decision, 2011 HRTO 1783.

Facts

3The applicant testified he was hired as a part-time truck driver with the Distribution Department of the respondent company in May 1999. The respondent advises that he became a full-time driver in February 2005 as a term of a settlement of a grievance. Initially, he worked at the respondent’s Downsview facility, but moved to the Brampton facility, which is where the two incidents at issue took place.

4The applicant testified that of the approximately 100-200 truck drivers at the respondent’s Brampton facility, only four or five are black. He said that there were only two black drivers until recently, when an additional 3 or 4 came over from the respondent’s Overlea facility after it closed.

5The respondent’s witnesses denied this, saying the work force at the Brampton facility is very diverse, with at least 40% of the drivers being non-Caucasian. They were unable to specify how many of the drivers were black and how many were of other backgrounds. However, for reasons discussed in greater detail later, nothing much turns on this and it is unnecessary for me to resolve the number or percentage of black truck drivers at the Brampton facility.

6The specific allegation in the Application concerning disrespectful treatment states as follows: “…among his peers [the applicant] was spoken to in a demeaning tone and told to “get out of here” several times.” It then highlights an incident that occurred on October 1, 2009, which it states is a specific example of the demeaning treatment. The applicant did not particularize any other incidents of such conduct that occurred prior to filing his Application.

7In his witness statement and testimony, however, the applicant referred to a second incident that occurred on December 16, 2010. Although it post-dated his Application by more than seven months, and although the applicant did not seek to amend his Application, the respondent did not object to this incident forming part of the applicant’s allegations, and, indeed, called a witness to refute the applicant’s version of events. These are the only two incidents to which the applicant referred concerning the manner in which he was spoken to.

October 1, 2009 Incident

8The parties are largely in agreement with respect to the facts of this incident. On October 1, 2009, the applicant arrived for his afternoon shift at 1:00 p.m.. Joe Johnston was the distribution supervisor for the afternoon shift, and the applicant’s immediate supervisor responsible for assigning the applicant his delivery route. Mr. Johnston testified that once he assigns the route, the driver has 40 minutes to get his truck ready and leave the yard.

9All parties agree that the applicant did not leave immediately because he believed there were no suitable tractor trailers available. The parties also agree that Mr. Johnston was irritated by the fact that the applicant was still in the drivers’ room for some time after he assigned the route.

10The applicant testified that Mr. Johnston yelled at him to “get out of here and go” three times. The applicant further testified that he told Mr. Johnston to not speak to him in such a disrespectful manner, and that when he turned to go, his supervisor said under his breath, “fucking asshole.” When the applicant said “What did you say?” he answered “Did I say Stan [the applicant’s first name]?”

11Mr. Johnston testified that he told the applicant to “go” three times when the applicant was still in the driver’s room 20 minutes after being assigned his route, and that as he was leaving, the applicant accused him of calling the applicant a “bastard.” He testified that he denied having called the applicant a derogatory name (be it bastard or fucking asshole) at the time of being confronted. This denial is repeated in subsequent communications made shortly after the event.

12The applicant filed a grievance that afternoon, in which he asserted his supervisor called him a “fucking asshole” and Mr. Johnston wrote an internal memo that evening (after having received the grievance) in which he said the applicant accused him of using the word “bastard.” A fellow supervisor also prepared a note at that time in which he wrote that he heard the applicant accuse Mr. Johnston of calling him a bastard.

13The matter proceeded to step 3 of the grievance process, at which time the respondent offered to have the Plant Manager, Bill Pickering, conduct an investigation. Mr. Pickering convened an investigation meeting on December 10, 2009 which was attended by the applicant, his union rep, Mr. Johnston and another company official, Chris Christidis. He advised those present that it was impossible for him to determine who was “lying.” It was his intention to resolve the matter so the parties could continue to work together. He testified that he thought that that is what happened by the end of the meeting.

14Mr. Christidis’ notes quote the applicant saying, “I have been harrassed [sic] ever since I have been with the company.” In cross-examination, Mr. Pickering did not deny the applicant said that in the meeting, but stated at this point he could not recall that comment. Mr. Pickering testified, however, that he is clear that there was no discussion of race or colour. He testified that had these issues been raised, he would have immediately notified human resources, which would have started a separate process. There was no evidence before me that any such process was initiated.

15The grievance form and the applicant’s subsequent letter of complaint to the company, dated October 7, 2009, make no reference to a violation of the applicant’s human rights.

December 16, 2010 Incident

16The second incident to which the applicant testified occurred more than 14 months after the first one. He said that he was asking the auditor on duty for his password at the end of his shift when one of the warehouse supervisors, Abhishek Bhardwaj, ordered him to leave the loading dock area in an aggressive and disrespectful manner. When he asked the supervisor what he had done, Mr. Bhardwaj continued to yell at him to leave and used words like “get out of here now.” He testified that he could not think of a reason for this disrespect and that he thinks it “may be because of my colour.”

17Mr. Bhardwaj testified that prior to this evening he had never had any issue with the applicant. On the night of December 16, 2010, he observed the applicant asking the auditor for a password before the auditor had a chance to check his load. He testified that the auditor was responsible for checking the drivers’ loads to ensure that they were as they were supposed to be, at which time they would provide the applicant with a password, which would allow the driver to check in. He further testified that when an employee does not follow a process he, as supervisor, asks that employee to “step away from the process.” He wanted to ensure that the auditor could do his job.

18Mr. Bhardwaj testified that, while he did ask the applicant to leave the dock, he did not use the phrases set out in the applicant’s letters of complaint to the company and his union (the CAW). He said it was a week before Christmas and things were very hectic in the warehouse, and that words could be misconstrued. However, he also admitted in cross-examination that he was annoyed that night and that there was a certain level of “shop talk” which is not taken personally.

19The applicant said that his union did not take this forward, which he regarded as problematic. Mr. Bhardwaj testified that he was approached by a union steward and when he explained what happened to the steward, that seemed to resolve the matter. The union steward did not raise issues of race or discrimination. No one from the company approached him about the letter the applicant wrote to the company the day after the incident.

20As mentioned, the applicant wrote identically worded letters to both the head office of the company in the United States and to his union. He describes Mr. Bhardwaj’s behaviour as “aggressive, unprofessional and disrespectful” and “abusive and un-provoked.” There is no reference to the Code in these letters, nor does the applicant allege discrimination.

decision and analysis

21The applicant bears the onus of proving, on a balance of probabilities, that he experienced differential treatment, which was based on a ground of discrimination enumerated in the Code. The Code does not prohibit all forms of adverse or even “unfair” treatment; but only those which are based on a prohibited ground. Thus, in this case, the applicant bears the onus of proving on a balance of probabilities that not only did he experience adverse treatment, but that there is a nexus between that treatment and his race and/or his Caribbean background.

22There is no direct evidence of this link. In the absence of such direct evidence, the applicant must point to sufficient evidence from which I can infer that this treatment was based on the prohibited grounds enumerated in his Application. The fact that there may not have been very many black truck drivers working in the Brampton facility is by itself an insufficient basis on which to make the necessary inference.

23The applicant eluded to past unfair treatment, but the nature of those allegations – failure to be hired to a full-time position, termination from the part-time position and the establishment of an unfair seniority date upon reinstatement – are dissimilar from what he alleges happened in the instant case. Moreover, some or possibly all of this happened while the applicant was employed at a different facility and many years before the actual incidents. He made no link between his two supervisors – Johnston and Bhardwaj – and this earlier treatment. Even had the applicant chosen to call evidence with respect to this earlier conduct, it is unlikely that it would have helped him establish a nexus with respect to the incidents at issue.

24It would appear that the applicant, rightly or wrongly, felt that his past experiences with the respondent were the result of racism and that this perception informed how he experienced the outbursts by his two supervisors. However, I would note that the applicant’s sense of grievance is not a reliable basis for inferring that the exchanges were, in fact, linked to a ground under the Code. In his Application, he alleges that “amongst his peers he was spoken to in a demeaning tone” and yet when pressed, the applicant was only able to cite one example that had occurred up to the date he filed his Application.

25Moreover, the applicant called no evidence about how his peers were treated, and how that differed from the treatment he received. He did not contradict the respondent’s evidence that his supervisors felt annoyed because they believed him to be not getting ready to go, on the first occasion, and by-passing the audit process, on the second. He pointed to no examples of co-workers engaged in similar conduct who were treated in a more respectful fashion.

26The level of civility in a warehouse environment is such that pointedly demanding that an employee comply with a direction (as opposed to politely asking) is not unexpected or surprising. Even if I were to accept the applicant’s version of events – namely that he was repeatedly told to leave and then called a “fucking asshole” under the supervisor’s breath on the first occasion, and yelled at to leave the dock area on the second – the conduct described is not so remarkable as to warrant an explanation beyond that which was provided by the two supervisors in question.

27The applicant has failed on a balance of probabilities to demonstrate that his race and/or Caribbean ancestry were factors in his treatment by the respondent. In the absence of direct or circumstantial evidence from which I can infer a link between the allegations and the applicant’s race, colour, place origin or ethnic origin, I cannot find a violation of the Code.

order

28The Application is, accordingly, dismissed.