Thompson v. New Heights Community Health Centre, 2012 HRTO 794

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Thompson Applicant

-and-

New Heights Community Health Centre and Andrea Cohen Respondents

DECISION

Adjudicator: Dale Hewat Date: April 18, 2012 Citation: 2012 HRTO 794 Indexed As: Thompson v. New Heights Community Health Centre

APPEARANCES

Barbara Thompson, Applicant ) Ron Franklin, Counsel and ) Self-represented

New Heights Community Health ) Angela Rae, Counsel Centre and Andrea Cohen, Respondents )

1This is an Application filed June 29, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, Barbara Thompson, self-identifies as a Black female of Caribbean origin. She claims that she was terminated from her employment as Director of Community Health Promotion for the respondent New Heights Community Centre (‘the Centre”), on March 24, 2005, on the basis of race, colour and place of origin contrary to sections 5 and 9 of the Code.

2With respect to allegations of discrimination the applicant claims that the respondents discriminated against her and ultimately terminated her employment because the applicant was working with and advocating the attendance of Black male youth at the Centre as part of a program that she was developing.

3The respondents deny that the applicant was subject to discrimination on the basis of race, colour or place of origin at any time during her employment. The respondents maintain that the decision to terminate the applicant’s employment was related to a number of factors with respect to the applicant’s job performance during her 6 month probationary period which resulted in a decision that the applicant was not a suitable employee to retain beyond probation.

4The hearing in this matter was on May 13, 2010 and December 16, 2011. The applicant was represented by counsel initially at the first hearing date but after this date was self-represented.

DECISION

5The Application is dismissed. What follows are my reasons.

The Evidence

6The respondent Centre, originally named Lawrence Heights Community Health Centre at the time of the applicant’s initial human rights complaint, is a non-profit, community-based health care organization which provides free health care services throughout the Lawrence Heights area of Toronto. The Centre receives funding support from the Ontario Ministry of Health and Long-Term Care, Community and Health Promotion Branch. It serves a number of demographic groups in its catchment area, including a large percentage of Black and nonvisible minorities. The individual respondent, Andrea Cohen, was at all material times employed by the Centre in the position of Executive Director.

7The respondents advised at the last day of hearing on December 16, 2011 that the Centre has changed names and expanded its geographic boundaries since the filing of this Application. For the purpose of this Decision, reference to the Centre relates solely to New Heights Community Health Centre during the period of time during which the applicant was employed.

8The applicant commenced employment with the Centre on January 4, 2005 as Director of Community Health Promotion Programs and was subject to a six-month probationary period. She was hired as one of three Director positions at the Centre. The applicant testified that because of her experience growing up, in what was once a violent district in Jamaica that she had a personal interest in engaging youth and building positive opportunities for their development within their community. Due to this interest, the applicant was attracted to working at the Centre, in part, because at that time, the majority of the Centre’s services targeted a predominantly Black community in Lawrence Heights.

9In her capacity as a the Director of Community Health Promotion Programs the applicant was initially responsible for completing an overview of the program and services offered by the Centre and a broader environmental scan of the needs of communities the Centre served to determine if there were any gaps in services provided or any changes required to match each community’s needs. The applicant reported to Ms. Cohen and the two had frequent and open verbal communication about on-going work projects.

10In January 2005, the Centre ran a number of programs for children and youth, which were primarily coordinated with, and held in, local community schools or the community centre. Some of the programs included the Support Group for Young Women and Men, Cooking Club, Homework Club, Youth Talk and Health Promotion discussion groups and a Young Men’s program and a Peer Empowerment Project. While the applicant was not familiar with the full extent of each of the programs, she agreed that many of them were open to Black male youth, although not always attended by that demographic. During her review of the programs in her testimony, the applicant noted some concern about how the Young Men’s Program held at the local community centre was run. Her concerns related to the high ratio of attendees to the one staff member and the lack of suitable direction and programming for this Program. The applicant also recalled that she believed that a boy, who self-identified as a Black male, was not allowed to attend an after school program. However, the applicant later agreed that once the parental consent form was provided for him, that he was admitted into the program.

11Within the first month of her employment, the applicant met a young Black male, age 11, named Samuel, who started talking to the applicant outside of the Centre about his neighbourhood. The applicant invited Samuel into the Centre and spoke with him about the opportunity to get neighbourhood youth like him together as a group at the Centre. After their initial conversation, Samuel returned to the Centre, after school, on multiple occasions, each time bringing more friends along with him to meet as a group with the applicant.

12The applicant’s initial experience with Samuel and the other boys presented an exciting opportunity for her to explore providing a new service at the Centre that targeted Black male youth between the ages of 11-18. The applicant approached Ms. Cohen about the possibility of running a program for High-Risk Youth and it was agreed that initially a High-Risk Youth task group would be struck comprised of the applicant and Centre staff and that a Needs Assessment would be required to determine the viability of a High-Risk Youth program. A more detailed list of what was required for the Needs Assessment was set out in a memo dated February 24, 2005.

13The applicant was also advised by Ms. Cohen that some funding would be made available to assist with the High-Risk Youth program initiative. Ms. Cohen explained that as a publicly funded organization, the Centre is responsible to ensure that the funds received are aligned with the funder’s mandate and needs. In the case of the High-Risk Youth initiative, there was no targeted funding. Ms. Cohen testified that the Intravenous Drug Use (“IDU”) program had surplus salary funds, due to a parental leave, that were required to be used by March 31, 2005. She explained that she was prepared to transfer these funds to the High-Risk Youth initiative so that an assessment could be made of whether targeting high-risk youth might prevent eventual substance abuse and unsafe behaviour related to AIDS prevention mandated by the funding provider, the AIDS Bureau. Ms. Cohen also confirmed that before applying for any additional funding it was necessary to first determine if there was a need for a program targeting high-risk youth by completing a Needs Assessment which was to be done by the applicant.

14The parties disputed the length of time that funding was made available for the High-Risk Youth initiative. The respondents maintained that the applicant was clearly told that funding for the project ended March 31, 2005 as that was the last day funds were available from the transferred IDU salary budget. In addition, evidence was provided that the applicant was allowed to hire two additional staff members to assist with the project but that both staff were hired under contracts that ended on March 31, 2005. It was also explained by Ms. Cohen that the two additional staff were hired on a contract for services, with the final payment being made on March 31, 2005, but that they might have been required to work on the project to complete their assignment beyond March 31, 2005.

15The applicant claimed that she was told by Ms. Cohen that funding was available until June 2005 which the applicant understood was necessary to allow time for the completion of a Needs Assessment for the project. She also claimed that the Director of Finance, Dan Hunt, conveyed to her, in an email dated March 17, 2005, that funding would be extended because he projected that the IDU funding would continue between April and July of 2005 in which he stated that “it looks pretty positive in terms of having some good funds to keep going forward with the new initiative”. However, from both Ms. Cohen’s testimony and the applicant’s cross-examination, it was clarified that Mr. Hunt did not have authority to grant funding for a project, and that it was solely in Ms. Cohen’s discretion to assign funds. Ms. Cohen also explained that simply because funds might be available does not ensure that they will be dedicated to a particular project or program. Ms. Cohen also noted that the applicant may have misunderstood the time-frame for available funds since the salary dollars that had been transferred to fund the High-Risk Youth project had become available due to a parental leave that was to end in June 2005.

16In terms of the boys’ attendance at the Centre, initially about 3 boys met with the applicant twice per week but the numbers grew and by mid-February 2005 about 17 boys joined the group necessitating the need for above-noted additional staff to meet with them. While the applicant first met with the boys in her office, as the numbers grew she received approval from Ms. Cohen to book a dedicated meeting room in the Centre. The applicant did not see the boys enter or exit the Centre. The applicant explained in her meetings with the boys she had to deal with a number of different behaviours and attitudes and that she tried to work with and teach the boys about appropriate behaviours.

17The applicant claimed that a couple of staff members complained about the boys’ attendance at the Centre and that one of her staff, Natalia Udarchuk, yelled at the boys and told them that they didn’t belong at the Centre. When the applicant spoke with Ms. Udarchuk regarding the frustration with the boys, Ms. Udarchuk told the applicant that it was not appropriate for the boys to be at the Centre and they should have instead attended the program at the community centre, where similar programs had been held in the past.

18It was also brought to the applicant’s attention, in mid-February 2005, that there were concerns from some of the staff about the way in which the boys were behaving when they visited the Centre. Complaints were raised that, unbeknownst to the applicant, either before or after their program meetings, the boys were behaving raucously and consuming and spilling coffee and sugar packages in the coffee area which was not only unhealthy but created a nuisance and a mess in the Centre. Ms. Cohen also testified that some of the boys were being disruptive in the Centre’s atrium and throughout the office.

19While the applicant believed that the boys were not welcome at the Centre, it was Ms. Cohen’s position that there was no issue with the boys accessing the Centre and that she wanted to encourage Black youth to attend the Centre, but there were concerns about the lack of supervision of the boys and their behaviour when they were not in a meeting with the applicant or her staff. The applicant was also asked to ensure that each boy brought a parental consent form allowing him to attend the Centre.

20Minutes from a Management Team meeting on February 18, 2005, note that the applicant agreed to follow-up with a memo to the staff to explain the nature and purpose of the boys’ attendance at the Centre and to encourage the staff to welcome their presence at the Centre. Approximately 3 weeks after the February 18, 2005 meeting, the applicant followed-up by first sending a draft email on March 14, 2005 to Ms. Cohen for her input and approval and then by sending the finalized version of the email to staff on March 15, 2005. On March 17, 2005 the applicant sent a second email to Ms. Cohen and the other Directors indicating that her March 15, 2005 email resulted in a positive response from staff including offers of support and help.

21On March 21, 2005 the applicant had a meeting with Ms. Cohen and Mr. Hunt during which the applicant recalled being advised that funding for the High-Risk Youth project would not be extended nor would there be an application made for one time funding. Ms. Cohen’s version of that meeting recalled that there was a discussion with the applicant about how the Needs Assessment had not been completed and that funding was ending on March 31, 2005 and how it might have been possible to re-allocate the IDU salary dollars to the project but that a Needs Assessment would have been necessary as it was needed to form the basis for any application for additional funding.

22Following the March 21, 2005 meeting, Ms. Cohen decided to end the applicant’s employment because she did not have the confidence in the applicant’s ability to fulfill the objectives and duties of a Director, which was a critical management role at the Centre. According to Ms. Cohen, while she believed that the applicant’s “heart was in the right place”, the applicant had not produced the documentation or follow-up required on the program review she had been assigned or on the High-Risk Youth project. As well from Ms. Cohen’s perspective, the applicant did not seem to have a good understanding of the Centre’s funding model and its obligation to its funders. The applicant’s staff also had complained to Ms. Cohen about difficulties that they had with the applicant which had resulted in coaching discussions with the applicant regarding general managerial style and expectations. Having considered all of the issues that had arisen with the applicant in her brief time at the Centre, Ms. Cohen ultimately decided that she wasn’t a right fit for the Centre’s management team and that it wasn’t in the Centre’s best interest to continue the relationship.

23On March 24, 2005 the applicant met with Ms. Cohen and was told that she did not pass her probationary period and that she would be terminated from employment. The applicant was provided with a letter of termination and two weeks pay in lieu of notice. After further communication with the applicant following her termination, she was paid an additional two weeks pay in accordance with her employment contract.

24The applicant recalled being shocked that she was terminated from employment and noted that in the termination meeting that Ms. Cohen referred to her as a “class act” without citing specific reasons for the termination and that Ms. Cohen was silent when she asked if the reason for her termination related to the boys. She further claimed that nothing had been brought to her attention regarding any concerns about her performance as a Director. While the applicant did not raise a claim of discrimination at the termination meeting or in her subsequent letters where she tried to negotiate a higher termination package, she stated that she believed that the real reason behind the termination was due to her involvement with the boys in the High- Risk Youth project.

25Ms. Cohen explained, like any other probationary employee, that since the applicant was not being terminated for cause, she did not feel it was necessary to review the details of her concerns about the applicant’s work performance either in the letter of termination or the termination meeting on March 24, 2005.

26Ms. Cohen stated that although she did not have conflict with the applicant, she had spent a lot of time coaching her, often on a daily basis, dealing with issues such as trying to assist the applicant in using a less authoritative management style and asking for reports and the status of the Needs Assessment with limited follow-up from the applicant. She also questioned the applicant’s understanding of acceptable boundaries as a Director, because the applicant gave out her personal phone number to the boys, which was not a generally accepted practice at the Centre. Furthermore, Ms. Cohen testified that notwithstanding the applicant’s good intentions, she was concerned about the applicant’s time-management skills as the applicant was spending a large amount of time dealing with the boys and High-Risk Youth project relative to many other programs under her portfolio. The applicant agreed that a Needs Assessment was not completed, but argued that she was terminated from her employment before there was time to finish it. She also stated that she did not believe the Needs Assessment was her responsibility to complete. It was not disputed that the applicant failed to provide a report or any notes regarding her review of the programs provided by the Centre which had been assigned as one of the applicant’s first tasks.

27From Ms. Cohen’s perspective, therefore, while she respected the applicant professionally and believed that the applicant was operating with good intentions, she came to the conclusion by March 2005, that the applicant was not a “good fit” for the Centre. Ms. Cohen did not recall the applicant questioning her if the termination was because of her interaction with the boys and claimed that she became aware of the applicant’s theory of discrimination only when she received the human rights complaint.

28Following the applicant’s termination, the Centre hired an interim program manager to take over the applicant’s role. That incumbent, a self-identified Black East African, had worked as a community health worker at the Centre and had experience dealing with youth programming. The High-Risk Youth program continued for a approximately six weeks following the applicant’s dismissal because Ms. Cohen was able to transfer additional salary funds from IDU Project since the individual on parental leave was not due to return until June 2005. However, the High-Risk Youth program was ultimately cancelled due to lack of direction and limited attendance. Management decided it was more effective to focus on other youth programs, many of which were open to participation of young Black males.

Credibility

29In deciding this Application, it was necessary to assess the credibility of each witness in order to determine which story makes the most reasonable sense in all of the circumstances. Assessing credibility is not simply an exercise of listening to oral testimony of witnesses and observing their demeanour to decide who appears to be the most truthful. Instead, assessing credibility involves the consideration of a variety of factors.

30In Shah v. George Brown College, 2009 HRTO 920, the Tribunal summarizes its approach to assessing credibility at paras 13 and 14 as follows:

One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

(…) opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

In addition to the factors and approach highlighted in Faryna, corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties, will be relevant considerations in assessing credibility. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party’s case.

31Furthermore, other factors the Tribunal has considered in assessing credibility include the internal consistency of a witness’s evidence, inconsistencies and contradictions in relation to other witness’s evidence and observations as to the manner in which the witness testified. See Cuglari v. Clubine, 2006 HRTO 7.

Analysis

32In Iqbal v. Inscape Corp. 2009 HRTO 1189 at paragraph 1, the Tribunal states what must be considered in the determination of whether discrimination was a factor in a termination of employment:

My task in resolving this Application is not to decide whether the respondent had just cause to terminate the employment of the applicant…the issue is whether the applicant has met his burden of proof to show, on a balance of probabilities, that one of the prohibited grounds was a factor in the respondent’s actions.

33Similarly, the Tribunal had noted in Mayta v. Canada Lands Co. 2009 HRTO 1613 at paragraphs 29 and 30, that it is not necessary to decide the merits of each event of misconduct relied upon by the employer and that instead it is sufficient to consider whether the employer’s purported reason, is the true reason for dismissal and not a pretext.

34The applicant has not met the burden of proof to establish that one of the reasons for her termination from employment was on the basis of race or colour or place of origin due to her involvement with the High-Risk Youth project. In hindsight, Ms. Cohen should have more clearly shared her concerns with the applicant either through a performance review or in written documentation. However, even without such documentation, I still cannot find a connection between the applicant’s involvement with the Black youth and her termination of employment.

35Having reviewed the testimony of both the applicant and Ms. Cohen, I find the explanation provided by Ms. Cohen for the termination decision to be credible and reasonable. The applicant was hired in a critical management position at the Centre and although she was there a short time, Ms. Cohen’s explanations for the termination decision show an honest attempt by her to work with the applicant despite the applicant’s limited documented follow-up with respect to the program review and the Needs Assessment. In that regard, I am not convinced, as the applicant claimed, that performance concerns were not brought to her attention. Both the applicant and Ms. Cohen admitted to frequent open communication and I believe that Ms. Cohen did bring issues to the applicant’s attention, but in a non-disciplinary, coaching manner.

36In addition, even from the applicant’s testimony, it was clear that she was passionate about the High-Risk Youth project, so much so, that it was understandable that Ms. Cohen was concerned that the project was taking up too much of the applicant’s time resulting in less time being devoted to other responsibilities in the Director’s portfolio. Considering the evidence in its entirety, it simply doesn’t make sense that the applicant’s termination was because she was working with Black male youth.

37First, one of the main objectives of the Centre, at the relevant time, was to provide health promotion and service to its community, Lawrence Heights which was comprised of a large Black demographic including male youth. The Centre also offered a number of programs which targeted youth and were accessible to Black male youth either through local schools or the community centre.

38The applicant also expressed her interest in assisting Black male youth, because of her life experience, in her interview for the Director position and was hired knowing that was one of her goals. Furthermore, when the applicant approached Ms. Cohen in January 2005 about the idea of meeting with Samuel and his peers on a regular basis at the Centre, no objection was made. In fact, Ms. Cohen agreed with the applicant’s idea of a High-Risk Youth initiative and permitted the applicant to gather a group to run a task force to examine the concept. In addition, Ms. Cohen supported the initiative by committing funding, contingent on the development of a Needs Assessment, which would support the hiring of two additional staff to assist the applicant with running meetings with the boys and other planning for the High-Risk project. As the group of boys attending the applicant’s sessions grew in number, the applicant was also given dedicated meeting space at the Centre to run the twice weekly meetings.

39Although the applicant tried to argue that once it became evident that all of the boys accessing the Centre were Black youth between ages 11-14, staff became unwelcoming, I am not convinced that the evidence showed that was the case. What the evidence did show was that there were concerns among some of the staff, and in particular Ms. Udarchuk, about how the boys were behaving in the Centre either before or after their meetings questioning whether it would be more appropriate to offer the High-Risk Youth program in another location such as the local community centre. Those concerns are not evidence of discrimination against the boys but rather legitimate concerns about young boys’ conduct while unsupervised on the Centre’s premises.

40The applicant also admitted that she did not see the boys enter or exit the building, so would not have seen how some of them were behaving. She did acknowledge that in her sessions with them she had to spend time dealing with and teaching the boys appropriate behavior. In addition, the evidence showed that some of the boys behaved raucously and were consuming and spilling large amounts of coffee and sugar in the Centre’s coffee area and that the applicant agreed to follow-up with staff regarding boys’ attendance at the Centre. Before sending the email memo to staff on March 14, 2005, the applicant sought and received Ms. Cohen’s approval of the memo and even reported back to management on March 17, 2005 that staff had responded positively to the email.

41In terms of the funding time-frame for the High-Risk Youth project, the evidence showed that salary dollars from the IDU Project were transferred in the budget by Ms. Cohen to be used by the applicant to hire two additional staff whose employment contracts specifically stated an end date of March 31, 2005. Although the applicant may have been under the honest impression that funding would be made available until June 2005 or beyond, it makes more sense that the applicant may have misunderstood June 2005 as the time-frame for funding since salary dollars would have been available from the IDU Project budget due to a staff member being on parental leave. Additionally, even though the applicant received an email from Dan Hunt on March 17, 2005 which noted he was hopeful that there was a good chance to extend funding; it was clarified in testimony that Mr. Hunt did not have the authority to approve how funds were allocated at the Centre.

42In any event, whether or not it can be established if funding was to continue for the High-Risk Youth project beyond March 21, 2005, the reasons behind the applicant’s termination cannot reasonably be connected to a discriminatory basis because of her interactions and advocacy on behalf of the boys. The applicant admitted that she did not raise the issue of discrimination during her the termination meeting or in any of the subsequent correspondence related to termination pay. Even if the applicant had asked if her termination was because of the boys and Ms. Cohen did not respond to the question, I cannot draw a reasonable inference that discrimination occurred. What does make sense is that the way in which the High-Risk Youth project was operated by the applicant caused concerns for the Centre. I believe it contributed to the decision to terminate her employment but not because of the boys’ colour, race or place of origin, but because of how the boys behaved, in part, while attending the Centre, the lack of follow-up on the project by the applicant in relation to the Needs Assessment and her undue attention to the project to the detriment of her other responsibilities.

43Looking at the evidence, the applicant did not complete or meaningfully begin to provide information required from her review of the Centre’s programs or information related to a Needs Assessment for the High-Risk Youth project. While the applicant claimed that the Needs Assessment was not her ultimate responsibility, as a Director, she was responsible for the project and knew that it was a requirement for funding. But even in terms of follow-up, although she claimed that the ability to complete a Needs Assessment was cut short due to her termination, the only documentation that she was able to point to that was provided by her was attendance records from a few meetings with the boys. In addition, the fact that it took the applicant three weeks to follow-up with staff regarding concerns raised at the February 18, 2005 management meeting raises some doubt about the applicant’s ability to deal with the issue in a timely manner.

44Finally, what is most telling in this case is that the Centre continued its efforts with the High-Risk Youth project for an additional six weeks following the applicant’s dismissal. Not only did Ms. Cohen authorize additional funding for the project, but it is evident that the boys continued to come to the Centre for meetings, although their numbers dwindled. I am satisfied with the explanation provided by Ms. Cohen that the decision was made to end the project after six weeks due to lack of direction and low attendance rather than the demographics of the youth.

45I find that the decision to terminate the applicant’s employment was made for non-discriminatory reasons related to performance concerns that came to light early in her probationary period. Accordingly, the Application is dismissed.