Sergey Zholudev v. EMC Corporation of Canada, 2012 HRTO 626

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sergey Zholudev

Applicant

-and-

EMC Corporation of Canada

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: March 26, 2012

Citation: 2012 HRTO 626

Indexed as: Zholudev v. EMC Corporation of Canada

APPEARANCES

Sergey Zholudev, Applicant ) Self-represented

EMC Corporation of Canada, Respondent ) Brian D. Mulroney, Counsel

1This is an Application filed on March 15, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c, H.19, as amended (the “Code”) alleging discrimination in employment on the basis of age. The original Application alleged that the applicant was discriminated against in ten “events” when he was not promoted to a job or assigned to an employment opportunity while employed with the respondent. A Response has been filed that denies the allegations.

2The parties have exchanged and filed disclosure in this matter. The material filed consists of a large number of documents and witness statements for the applicant and all of the proposed witnesses for the respondent.

3Initially, the Application proceeded to a hearing for the purpose of addressing a Request for Order During Proceedings brought by the respondent that certain portions of the Application be dismissed on the basis of delay and/or because the allegations related to competitions for positions in California. At the hearing, the issues were narrowed. The applicant confirmed that he was not seeking a remedy in respect of two of the events (identified as events 8 and 9 in the Application) which resulted in the respondent withdrawing its request that the Tribunal address its jurisdictional arguments in respect of those incidents. I determined that, in the event that the applicant sought to lead evidence on the events described in the hearing, I would consider whether to permit the evidence subject to relevance and any objections that may be made by the respondents.

4On July 27, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1411, and a Case Assessment Direction. In the Interim Decision, I considered the Request brought by the respondent and found that, with the exception of one of the allegations (referenced as event 6 in the Application), the respondent’s Request to dismiss was denied. In the Case Assessment Direction, the Tribunal separately directed that a summary hearing be held to determine whether the remaining allegations in the Application (Events 1 to 5, 7 and 10) should be dismissed on the basis that there is no reasonable prospect that they will succeed.

5On September 22, 2011, a summary hearing was held to address whether there is no reasonable prospect that the remaining seven allegations in the Application will succeed. In determining this question, I have considered the evidence previously presented at the hearing on the jurisdictional issues, the submissions received during the summary hearing and the extensive material filed by the parties prior to the summary hearing.

6I have determined that the Application should be dismissed. My reasons follow.

BACKGROUND

7The Application arises out of the applicant’s employment and termination of his employment with the respondent. The respondent is a subsidiary of a U.S. corporation involved in the development, manufacture, sale and service of information hardware and software.

8The applicant was employed by the respondent (or a predecessor company subsequently acquired by the respondent) from October 16, 2000 to February 25, 2009. On the latter date, the applicant was laid off, along with a number of other employees, because their work was relocated to India. At the time of his lay-off the applicant’s position was a senior software engineer.

9The applicant holds a Masters degree in engineering and during his employment completed a separate Masters in Business Administration (MBA) in May 2008. It is clear from the applicant’s submissions in the Application and other material submitted that in his view, his enrolment and subsequent completion of the MBA, coupled with his work background, qualified him for the various promotional opportunities.

10With one exception, the events underlying the Application arise from the applicant not being assigned to job opportunities or promoted to positions which he alleges was because of his age. In the period May 2, 2006 to December 2008, the applicant alleges that he was either denied or not considered for six promotional opportunities. At the time of these events the applicant was between 46 to 48 years of age. In the events complained of the applicant was older than the candidate selected for each opportunity or vacancy by 11 to 17 years. In essence, the applicant alleges that there was a pattern of preferring younger candidates for any work opportunities or promotions that arose in the workplace.

11The last event relates to the applicant’s efforts to obtain feedback from the respondent’s managers about how he could improve so as to increase his chances of becoming a manager. The applicant alleges that he sent an email to this effect on December 15, 2008 but received no feedback and instead was told on January 7, 2009 that his position was being discontinued on February 25, 2009. The applicant clarified in his oral submissions that he is not asserting that his age was a factor in the lay-off but instead he submits he was laid off because of what he wrote in his emails seeking feedback. The applicant characterizes the respondent’s actions as a “reprisal” in his written submissions although clarified in his oral submissions that he was unfamiliar with the Tribunal at that time. Given this ambiguity, I have considered the applicant’s allegation from both perspectives; as a claim of age discrimination but also as an allegation of reprisal.

12In addition to the submissions made about the particular events, the applicant relies on other evidence to support his claim of discrimination including a comment allegedly made by a senior manager in 2005 and comments made by some of his work colleagues during his employment, which he views as discriminatory. Further, the applicant relies on statistical information gleaned from the respondent’s disclosure which he states support his claim of a preference for preferring younger candidates including that the majority of employees terminated in the period November 2008 to December 2009 were over 40 years of age, that the age of persons hired into various entry level business positions was considerably younger than 40 years; and that the hiring managers are younger than the applicant. As well, the applicant points to the requirement that an employee provide their date of birth on the application form when hired as further evidence of age discrimination.

ANALYSIS AND DECISION

13In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations about the approach in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all of 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.

14As the Tribunal further explained 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 can 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.

15In this case, the central issue is whether or not there is a reasonable prospect that the applicant can establish a link between the ground of age and the events complained about or, in the case of the last event, reprisal. While the applicant clearly believes his age was a factor in how he was treated, the issue is whether this belief is mere speculation or whether there is a reasonable prospect that he can establish such a claim.

16I will now turn to an assessment of the allegations. While the applicant argued that there was a pattern, the applicant presented his submissions with reference to each separate event. In light of the applicant’s submissions, I will address the events as separate allegations, followed by a consideration of the general evidence relied on.

17The summary of the seven events is based on the description of the allegations set out in the Application subject to any clarifications or amendments made during the parties’ submissions and/or at the summary hearing.

First Event

18The applicant describes the first event as follows:

I was age discriminated and unequally treated with regard to promotion. Patrick Cian deceived me by telling me that he does not expect any new managerial positions in his department. A significantly younger person than I was promoted in 4 weeks. I was not given any chance at all despite the fact that I was qualified for the position.

19In his submissions, the applicant expanded on the facts underlying this event. On May 2, 2006, the applicant, who was a senior software engineer at the time, approached Mr. Cian, about “managerial openings” and Mr. Cian responded that he did not expect any. A month later, another employee was given a new role of product marketing manager for “documentum” which was the product area where the applicant worked albeit as a software engineer. Based on the material filed, it appears this candidate had previously been in a position of technical marketing manager for a different product. However, the email notice sent to staff describes this candidate’s experience as having a “deep understanding” of the “documentum” technology.

20The applicant states that he should have been considered for this position and that the only reason why he was not promoted was because of his age (13 years older than the candidate chosen). The applicant alleges that he had the same or better qualifications for the position. With respect to the latter, the applicant relies on having a Masters’ degree while the successful candidate had only a Bachelor’s Degree and his experience with the “documentum” product as a systems engineer.

21The respondent submits that this “position” did not involve a vacancy at all but was merely a reassignment of duties. The respondent submits that there is a process for posting of vacancies which is reflected in many of the incidents relied on by the applicant and which in this case would have required a requisition to increase the head count. In this case, the respondent states that no one was considered for the position other than the employee re-assigned to it – essentially the employee moved from looking after one product to looking after a different product. In light of this, the respondent states that there is no adverse treatment.

22In addition, in response to the applicant’s submissions on the strength of his qualifications, the respondent highlights that the employee assigned the work had been a marketing manager for seven years, while the applicant had never held that type of position for the respondent.

23I find that there is no reasonable prospect of the applicant being able to establish that he was subjected to adverse treatment or was disadvantaged in connection with this opportunity. In the absence of there being a vacancy or an opportunity where prospective candidates were being considered, I do not see how I can conclude that the applicant has been disadvantaged. I note that the applicant does not dispute that no one else was considered.

24However, even if the applicant was adversely treated or disadvantaged in the circumstances described by not being considered, I am not convinced that there is a reasonable prospect that the applicant can establish that his age was a factor in what occurred. While the applicant was older than the candidate selected for the position, apart from this fact the applicant has not pointed to any other proposed evidence that he would present that would show a link between age and the respondent’s decision to not consider him for this position. There is no indication that the manager in question knew the applicant’s age or the age of the successful candidate. While the applicant noted the employment application form completed when he was hired provided age-related information, information the respondent said it gathered for benefit purposes, he conceded that he had no evidence that the manager in question had reviewed this form or was aware of his age.

25The main contention of the applicant appears to be his perception that he had better qualifications than the successful employee and from which I presume he suggests an inference can be drawn that his age was the real reason for not being considered. However, the applicant did not point to any evidence that could reasonably support that contention. For example, there is no specific evidence to support finding the applicant’s particular educational background was required for this position. Further, while the applicant claims he had more experience with the product, the respondent’s position is the successful employee had performed these duties, although for a different product and this experience was desirable. The applicant has not explained how he would establish that this is a pretext and that his age was in fact a factor in assigning the work in this manner.

26In summary, considering all of the submissions, I find that there is no reasonable prospect that the applicant can establish a link between his age and his not being considered for the product manager position.

Second Event

27The second event is described in the Application as follows:

I was age discriminated and unequally treated with regard to promotion. Patrick Cian deceived me by telling me that he is looking for a candidate with digital recording experience. I was not given any chance at all despite the fact that I was qualified for this position. The person that was hired had no digital recording experience but was significantly younger than me.

28The applicant alleges that he applied “verbally” for this position. The applicant saw the posting on the respondent’s website (senior product marketing manager) and approached Mr. Cian and asked whether he could be considered. The applicant states that Mr. Cian told him that he was looking for a candidate with digital recording experience. The applicant did not apply. The candidate chosen was an external candidate 11 years younger than the applicant and according to the applicant had no such experience.

29The applicant states that Mr. Cian should have told him to apply formally and consider him along with the other candidates; otherwise it is adverse treatment. The applicant also states that he is “better qualified” than the successful candidate pointing to his working experience on a retention policy, which he states is a subset of records management, although he concedes he has no knowledge of the candidate’s technical skills and/or prior performance.

30The respondent disputes that the applicant has identified any evidence of age discrimination. The respondent states that there can be no finding of adverse treatment as the applicant did not apply for the position. In this case, the respondent states that there were three applicants short listed: one withdrew and the remaining two made presentations to the hiring manager with the successful candidate selected based on his stronger presentation. The respondent described the successful candidate as having several years of product marketing experience for other “IT employers” which was directly relevant to the position.

31I find that there is no reasonable prospect that the applicant will be able to succeed in establishing that he was discriminated against on the basis of age in connection with this vacancy. The applicant did not apply for the position in question and therefore I cannot conclude he experienced any adverse treatment. I do not view Mr. Cian’s alleged response to the applicant indicative of discriminatory treatment. The applicant has not suggested that he was treated any differently from any other candidate who asked about their suitability prior to applying.

32Further, the applicant has not pointed to any evidence on which he would rely to establish a link between his age and how he was treated in connection with this posting. Apart from the age difference between himself and the candidate chosen, the applicant has not pointed to any evidence he would call which would suggest that his age was a factor in Mr. Cian’s response to him or the selection of the candidate who was ultimately given the job. I do not find the selection of a candidate without digital recording experience, even assuming it to be true, to be indicative of age discrimination, particularly where the candidate appears to have product manager experience; an assertion of the respondent’s which is supported by the candidate’s resume.

Third Event

33The applicant described the third event as follows:

I was age discriminated and unequally treated with regard to promotion [in respect of the position, product manager content transformation services]. Senior management knew that I am in the middle of 3.5 year Masters in Business Administration (MBA) program. MBA program is designed specifically for prospective and current managers. The person hired for a product manager position was significantly younger than me. I was not given any chance at all despite the fact that I was qualified for this position.

34In his additional submissions, the applicant clarifies that in July 2006, he advised Mr. Quigley, the hiring manager, of his interest in future openings in his department and Mr. Quigley indicated that he would consider him. The applicant alleges that notwithstanding his expression of interest, in August 2006, Mr. Quigley assigned another employee to the position referenced above without posting it. The applicant alleges that this action was discriminatory because the employee had less education, similar product knowledge and public speaking ability, a poorer performance review and lower motivation. The applicant states that a comparison of these factors shows that the other employee’s younger age (35 years old) was the decisive factor in the assignment.

35The respondent disputes that the applicant’s age was a factor in its decision-making. The respondent states that the assignment was an internal developmental assignment to motivate the other employee who was bored in his current role. As such there is no adverse treatment. Further, and in any event, the respondent argues that the other employee was in a higher rated position earning 25% more income than the applicant, and had far better customer relations skills and product knowledge having actually worked on the programming for the product.

36The applicant notes he is 11 years older than the other employee and alleges his qualifications are equivalent or better. The applicant also suggests that he had a stronger performance review and better motivation. In essence, he is again suggesting that the reasons given for assigning the other employee to this position are a pretext and that age was, in his words, the “decisive factor” in the respondent’s decision.

37However, when I review the proposed evidence, I am not satisfied the applicant had equivalent or better qualifications than the successful employee. In my view, the evidence does not support the conclusion there is a reasonable prospect that the applicant can establish that his age was a factor in the respondent’s decision-making.

38For example, the applicant asserts that he has the “required” product knowledge and that it was similar to the knowledge of the successful employee. However, he has not explained how he will challenge the respondent’s proposed evidence that the employee selected had worked on the actual programming of the product which is superior to the installation work performed by the applicant.

39Similarly, while the applicant received an award in May 2007 for addressing customer needs he has not provided any evidence which would rebut the respondent’s claims that, at the time the decision was made in 2006, the successful employee’s customer relations skills were superior to the applicant’s.

40I have considered the performance reviews for both the applicant and the successful employee. They appear to reflect the same overall rating in the preceding year, i.e. 2005. While the applicant correctly notes the successful employee is criticised for a lack of initiative this did not affect his overall rating, and in any event, is consistent with the respondent’s rationale for the decision to assign him to the position as an attempt to motivate him. The reassignment appears to have been successful because the successful employee achieved a higher performance rating in the following year. While the applicant clearly disagrees with this strategy, I not convinced there is a reasonable prospect that he can establish that this is a pretext for what was in fact age discrimination.

Fourth Event

41The applicant describes the fourth event as follows:

I was age discriminated and unequally treated with regard to promotion. I learned from a colleague that [a] marketing manager is leaving EMC soon. His position did not appear on the EMC internal opportunity website. Knowing that this position will become available, I sent a resume to Patrick Cian (the direct supervisor of this position) and asked to be considered. I got a chance to present a presentation for this position. For which I was given two evenings after work to get ready for. The person that got this position had at least a month to get ready for this presentation. Hence, I was not given an equal chance despite the fact that I was qualified for this position. The person hired for this position was also significantly younger than I [subsequently clarified as 15 years younger].

42In its Response, the respondent states that it will present evidence that the applicant and the successful candidate were both given the two days’ notice to prepare their presentation. The respondent intends to present evidence that the successful candidate’s presentation was considered to be superior both in content and oral delivery to that of the applicant. The respondent argues that it is possible, even for a lay person, to conclude that the chosen candidate’s presentation had considerably more subjective content and was significantly better than the applicant’s presentation.

43The applicant denies this and states that his presentation looks more “marketing appealing”. He criticizes the competition process. While not responding to the proposed evidence about time given for preparation, he suggests that he had more experience with digital asset management (“DAM”) and had in fact been rewarded for his contribution with a monetary payment and stock shares and that this should have been taken into account. The applicant states that he cannot comment on the proposed evidence of the respondent witnesses that his oral presentation was weaker.

44I find that there is no reasonable prospect that the applicant will be able to establish that he was discriminated against based on his age in this job competition. Apart from the undisputed age difference, the applicant has not pointed to any other evidence he would present from which it could be reasonably inferred that age was a factor in how he was assessed.

45While the applicant initially asserted he was given unequal time to prepare, he has not pointed to any evidence he would present to establish that claim and that claim is strongly denied by the respondent. Similarly, while the applicant asserts his presentation was more appealing, he has not pointed to any evidence he would call to support that assertion or challenge the respondent’s claim that the attendees found the other candidate’s presentation stronger.

46The applicant urged me to review the two power point presentations. Having done so, I must agree with the respondent that, even from a lay perspective, the successful candidate’s power point presentation appears to have more substantive content. For example, the applicant’s introductory page identifies two general topics (with a third of questions and answers) while the successful candidate identified seven specific areas. For the most part, this difference in content continues throughout the rest of the two power point presentations.

47Considering the applicant’s submissions as to what evidence he will call I cannot conclude that there is a reasonable prospect that he will be able to establish that his age was a factor in the selection process for this position. Apart from the age difference, the applicant has not identified any allegations or proposed evidence to suggest that age was a factor in the competition process or the respondent’s decision.

Fifth Event

48The applicant describes the fifth event in the Application as follows:

I was age discriminated and unequally treated with regard to promotion. I applied for a Product Manager position through EMC internal opportunity website. Brian Quigley (the hiring manager) deceived me by telling me that he is looking for a candidate with web publishing experience. I was not considered although I was qualified for this position. The hired person had no publishing experience and was significantly younger than I [17 years younger].

49In his written and oral submissions, the applicant reformulated his claim in respect of this event. During the initial hearing dates dealing with the jurisdictional arguments, evidence was presented about this competition including the background of the successful candidate. Subsequently, in his oral submissions at the summary hearing, the applicant stated that he was not contesting the selection of the successful candidate, whom he concedes was superior, but is complaining about the consideration of another candidate during the process whom he alleges was 17 years younger and lacked web publishing experience. In essence, the applicant alleges that he was treated adversely because publishing experience was a prerequisite for him but not another candidate who was younger.

50I have difficulty seeing how the applicant has a reasonable prospect of establishing that he was adversely treated on the basis of age in this process. Even if the applicant was treated differently from another applicant, it did not result in any disadvantage as he is not claiming that he should have been awarded the position.

Seventh Event

51In the Application, the applicant alleged that he experienced discrimination when he was discouraged from applying for this position, the respondent represented that another candidate was already hired and instead the duties were distributed among other current managers. This allegation was significantly revised following the hearing on jurisdictional issues. The applicant now alleges:

I was unequally treated with regard to promotion to the position of principal product manager, Media and Entertainment. I applied for a Product Manager position through EMC internal opportunity website on April 4, 2008. I approached Mr. Quigley (the hiring manager) the same day and asked him to consider me for the position. Mr. Quigley told me that he already had a candidate from the West Coast. Mr. Effler was promoted to this position. Mr. Effler was also short-listed candidate for [the] position in event 5 without having job required publishing experience. Mr. Effler’s young age (17 years younger than I) made him automatically qualified for any managerial position he wanted to take. It is an adverse treatment. [emphasis in original]

52In his written submissions, the applicant asserts that he was better qualified for this position based on his direct developmental experience with digital asset management (“DAM”), the product in question. He concedes, however, that his knowledge of the successful candidate’s experience is “unknown”. Again, his claim is that the reasons given for selecting this employee for the position is a pretext and that age was the “decisive factor in promotion”.

53I heard evidence from Mr. Quigley during the hearing about this competition. When Avalon software, which holds digital video for broadcasting, in the media and entertainment market, was transferred into Mr. Quigley’s division the respondent decided to hire someone to take responsibility for it. The successful candidate was selected based on his experience with large media files. The respondent indicates that it will also lead evidence that the successful candidate worked extensively with DAM while employed at a firm which used it to store large media files for military purposes. The respondent states that the chosen candidate also had extremely good people skills. The respondent states that it is the candidate’s superior experience that resulted in him being selected.

54The applicant did not specifically respond to the submissions about experience with media files or comment on the opinion of the candidate’s people skills. While the applicant appeared to challenge the claim that the candidate chosen had experience with DAM by suggesting that it was not reflected on his resume, he also conceded that the candidate’s product knowledge, public speaking ability and performance review were “unknown” to him.

55Considering the applicant’s submissions, it is apparent that, apart from the age difference, his allegation as to how he compares with the successful candidate is speculative at best. I do not find that speculation equates to a reasonable prospect that the applicant can establish that the explanation provided is a pretext for the reason that the candidate was chosen.

56Further, the successful candidate’s resume appears to indicate experience with DAM while employed as a business solutions architect supporting the “design, demonstration, and marketing of a video and audio digital asset management solution to multiple government and commercial customers”. While I did not hear direct evidence on this point the resume appears to support the respondent’s position that the successful candidate worked extensively with DAM for a former employer who uses DAM to store large media files.

57In the circumstances, I find there is no reasonable prospect that the applicant will be able to establish a claim of age discrimination in respect of this event. Apart from the age difference, he has not pointed to any evidence that would suggest that his age was a factor in the respondent’s decision-making nor has he pointed to any evidence which could reasonably challenge the respondent’s position that the successful candidate was selected on the basis of superior experience.

Tenth Event

58The last event relied on is described in the Application as follows:

After two years of fruitless attempts of getting a promotion I wrote [sic] email to senior managers. In this email I kindly asked them to point me to the areas of expertise that may require my attention and improvement in order to increase my chances of becoming a manager. However, I have never received any constructive feedback and instead the topic was avoided. Business managers suggested to contact development management while development manager suggested to contact business managers. On January 7, 2009 I was told that my position is being discontinued on February 25, 2009.

59As mentioned above, the applicant’s claim in respect of this event is somewhat unclear. Initially, the applicant appeared to be challenging the lay-off itself as further evidence of his general claim of discrimination based on age. In his written submissions in advance of the summary hearing, the applicant referred to event 10 as a “reprisal”. Reprisal had not been cited as a claim in the Application.

60During oral submissions, the applicant confirmed the work he did moved to India but stated that he disagreed that all who performed the work were laid off. He conceded that age was not a factor in the lay-off as he identified two employees who remained, one of whom was around his age. In clarifying his position, the applicant states that he believes he was laid off as a reprisal for what he wrote in December 2008. He agreed he was not suggesting that he was enforcing any Code rights in his emails as he did not even know about the “Tribunal” at that time.

61In light of the applicant’s position, there is no reasonable prospect that the applicant can establish that event 10 is discrimination based on age. Further, I do not find that the applicant has a reasonable prospect of establishing a reprisal.

62Section 8 of the Code provides that:

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 or reprisal for doing so.

63In this case, the applicant’s request contained in his emails is captured in his description of the event at paragraph 58 above. The applicant sent an email under the subject line “seeking your advice” to several managers asking that he be pointed to areas of expertise that may require his attention and improvement in order to increase his chances of becoming a manager. The emails did not expressly raise any issues of Code rights (such as claiming there had been age discrimination) or even indirectly by expressing any frustration about earlier job or promotional opportunities. The applicant received three responses – all of which appear to provide constructive suggestions: sit down with your manager and perform a “gap analysis” where his skills are now and where they need to be; outline managerial roles you’ve taken on during the review process and take that initiative of suggesting where you see the need for a managerial role you could do; and attend presentation skills courses given the importance of the ability to present and communicate well. While two managers did not respond, I do not find the non-response significant for purposes of my assessment given that I do not find I can reasonably construe the request to be connected to complaining about discrimination and/or attempting to enforce a right under the Code.

64I do not find that the email sent provides a factual basis for establishing a reprisal within the meaning of the Code, nor do the responses received or the failure to respond support such a claim. I therefore find there is no reasonable prospect the applicant can establish he experienced reprisal within the meaning of the Code.

Other Evidence of Age Discrimination

65The applicant also pointed to other evidence that he would call that would buttress his claim of age discrimination including the requirement of providing a date of birth in the employment application materials, comments made in the workplace which he linked to age and statistical information related to age.

66With respect to the employment application, the respondent agreed that it collects employee birth dates although it states it does so for benefit and employee identification purposes only and the information is retained in confidence by human resources. While the applicant states that benefit information is separately collected by the benefit company, he did not point to any evidence that he could present that would challenge the reason the information is collected in the first instance nor any evidence of the information being available to the managers involved in the various hiring decisions such that it provided a link between the respondent’s actions in each event. In the absence of such a connection, I do not find this proposed evidence changes my analysis above.

67The applicant also pointed to comments made in the workplace, including a comment by a member of senior management and various comments by colleagues, which the applicant states related to age and which were unwelcome to him.

68Beginning with the latter, the applicant identified a number of comments made by colleagues which could be reasonably construed as engaging the ground of age. The applicant provided the following examples:

• you know, you are definitely older than I;
• what are you talking about, old man?;
• only viagra could help you to win in your age;
• in your age you should have been dressed more formally; and
• sounds like it is hard to play football for an old man.

The applicant states that he considered that the comments could be “friendly jokes” and that he was not sure how to regard them. More significantly, for purposes of the Application, the applicant did not allege that he brought any of these comments to the attention of the respondent’s management or that the respondent was otherwise aware of the comments so as to provide a link between the comments and the events in the Application or to support an allegation of poisoned workplace or harassment.

69In the circumstances, even accepting that the comments were made and that they engage the ground of age, I do not find that this proposed evidence assists the applicant in establishing a link between his age and the alleged events in the Application.

70With respect to the single comment attributed to management, I find it too ambiguous and remote to affect my assessment. The applicant alleges that the vice president and general manager of worldwide products, content management and archiving (described by the applicant as his general manager’s boss) attended a meeting with the Toronto Business Unit in December 2005. The applicant sates that everyone was asked to introduce themselves and “in the end of introduction…[the vice president] commented that we had too many seniors and it was time to focus more on juniors”. The applicant states that this was an “age discriminating comment” which created a disparaging attitude toward him. While not stated expressly, I presume the applicant’s contention is that the reference to seniors and juniors should be interpreted to mean that the respondent had too many older employees and should focus on the younger employees.

71In my view this interpretation is speculative. I agree with the respondent that the alleged comment is at least as likely to refer to job function given that many of the software engineers are designated as senior software engineers. Further the comment is made by a very senior manager who is not directly connected to any of the events in question and it occurred five months before the first event. When I consider these facts, I do not find that it alters my view that there is no reasonable prospect that the applicant will be able to satisfy me that there is a link between his age and treatment in these events.

72Finally, the applicant has pointed to various pieces of “statistical” evidence which he submits support a link between age and his treatment in the alleged events including that 75% of employees terminated in the period November 2008 to December 2009 were more than 40 years old; that the respondent had not provided any precedent of hiring persons older than 40 years to an entry level managerial position and that the examples of persons promoted were under 40 years; that two of the hiring managers were younger than the applicant ; and that all the successful employees or candidates were younger than the applicant.

73I note that the respondent takes issue with much of this evidence. The respondent states that the statistical evidence has not been compared to the subject population and, as a case in point, clarifies that the majority of employees laid off at Front Street (where the applicant worked) were under 40 years of age (which the applicant does not dispute). Likewise, the respondent states that the applicant’s submission that the respondent has not shown that any person over 40 years was hired into “entry level” managerial positions ignores the fact that all entry level positions in this division carry the title of “manager” even though they are just entry level positions which have product management responsibility.

74Even if I ignore the divergent positions taken by the parties, I am not convinced that the statistical evidence identified is relevant to the applicant’s allegations. Given that the applicant orally clarified that he is not asserting that his age was a factor in the lay-off, it is not apparent to me that evidence of the lay-offs would be relevant in establishing a link between the applicant’s age and the events at issue.

75Further, while some of the evidence of hiring patterns could theoretically be relevant I am not convinced that it would make a difference in this particular case. At this stage I have considered the specific seven events in question and have concluded that there is no reasonable prospect that the applicant can establish that his age was a factor and/or that he was reprised against for enforcing his rights under the Code. Even if there is a statistical pattern that reflected the evidence relied on by the applicant, this would not affect my conclusion that, in respect of the particular events identified in his Application, there is no reasonable prospect of success.

76Finally, I find it unnecessary to consider whether there is any reasonable prospect that the allegations about events 8 and 9 could lead to a finding of discrimination under the Code. As set out in paragraph 3 above, the applicant does not rely on these as allegations of discrimination for which he seeks a remedy, but only as potentially relevant evidence in support of his other allegations. The applicant did not make any submissions about these alleged events in the summary hearing nor did he respond to the respondent’s position that if the remaining events (Events 1 to 5, 7 and 10) are dismissed, the matter should be dismissed in its entirety.

77For all of the above reasons, the Application is dismissed. In light of this conclusion, there is no need to deal with the respondent’s Request for Reconsideration.