Sathasivam Thambipillai v. Toronto District School Board, 2012 HRTO 843

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sathasivam Thambipillai Applicant

-and-

Toronto District School Board Respondent

decision

Adjudicator: Douglas Sanderson Date: April 25, 2012 Citation: 2012 HRTO 843 Indexed as: Thambipillai v. Toronto District School Board

APPEARANCES

Sathasivam Thambipillai, Applicant ) Self-represented Toronto District School Board, Respondent ) Wendy Lopez, Counsel

1This decision concerns two Applications, 2010-05592-I (the “first Application”) and 2011-09975-I (the “second Application”), filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin and reprisal.

Background

2The applicant describes himself as a brown South East Asian man from Sri Lanka. He is an employee of the respondent, working as a shift leader in its caretaking ranks. The applicant alleges, in both Applications, that the respondent discriminated against him when it denied him several job opportunities. In an Interim Decision regarding the first Application, 2011 HRTO 487, the Tribunal dismissed untimely allegations, but allowed the Application to proceed with respect to a job competition in May 2009. The respondent’s position is the May 2009 competition, which concerned a Family Team Leader Position, was put on hold and ultimately never filled.

3In the second Application, the applicant alleged the he applied for several positions in May and June 2011 (Family Team Leader, Caretaking Team Leader, Computerized Maintenance Management Systems Team Leader, and Maintenance Team Leader), but was either not offered an interview or not selected following the interview process.

4By Case Assessment Direction (“CAD”) dated May 25, 2011, the Tribunal ordered a summary hearing regarding the remaining allegation in the first Application to determine whether the Application should be dismissed because it has no reasonable prospect of success. By CAD dated December 5, 2011, the Tribunal ordered a summary hearing in the second Application, also to determine whether it should be dismissed because it has no reasonable prospect of success. The second CAD also ordered that the summary hearings for both Applications would be held together on January 21, 2012. The respondent was not required to file a Response to the second Application, but filed documents and jurisprudence in support of its position at the summary hearing.

Summary Hearings

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Submissions

6During his hearing, the applicant stated that he accepted the respondent’s explanation that the May 2009 job competition was put on hold and never filled and would not pursue these allegations. The applicant also stated that he no longer intended to pursue his allegations regarding the job competitions described in the second Application with the exception of the Maintenance Team Leader (“MTL”) position. The applicant therefore restricted his submissions on the second Application to the competition for the MTL position for which he applied in June 2011. There were two MTL vacancies.

7The applicant was not granted an interview for the MTL position. He commented on the “Short List Criteria Form” the respondent used to determine which candidates to interview, which the respondent disclosed. The form sets out five criteria and records the score, out of three, assigned to each candidate by the interview team. The applicant scored 9 out of 15, receiving a score of zero for “knowledge of policies/procedures/collective agreements”.

8The applicant submitted that the criterion regarding knowledge of policies and collective agreements effectively eliminated him and was unfair. As a shift leader, which is not a managerial position, he would not work with these issues. The applicant submitted that the application form did not ask about knowledge of policies and collective agreements; therefore, it was not reasonable to disqualify him because of this criterion. The applicant submitted that he has many qualifications and extensive experience, but he received lower scores than candidates selected for interviews, including one of the successful candidates. The applicant stated that one of the successful candidates was white, was “only an electrician”, and did not have licenses or property management experience that the applicant had. The successful candidate in question, however, previously held the position of Assistant Team Leader regarding construction trades. The applicant also submitted that his scores for maintenance and construction experience (1/3) and supervisory experience (2/3) were unduly low. The applicant submitted that the respondent should have interviewed him to determine his qualifications.

9The applicant submitted that the respondent’s management ranks are not at all diverse and that his impression was that management selects “its own people” for advancement.

10The respondent submitted that the focus of the MTL position was the management of unionized trade personnel. The respondent was therefore most interested in candidates with trades experience and managerial experience, including knowledge of the respondent’s policies, procedures and collective agreements. The job posting identified these requirements. The applicant’s résumé, however, gave no indication that he had knowledge regarding the respondent’s policies or collective agreements. Accordingly, the interview team evaluating candidates’ qualifications assigned him a score of zero regarding the knowledge of policies/procedures/collective agreements criterion. The applicant identified experience regarding maintenance in the caretaking context, but not construction and therefore received a lower score regarding the maintenance and construction experience criterion. The successful candidates were tradespeople with more managerial experience than the applicant. The respondent noted the applicant’s position, shift leader, is relatively entry level and has limited opportunities for supervisory or liaison with staff or students because he works at night. The respondent noted that the field of candidates was particularly strong and no candidate receiving a score below twelve was granted an interview.

11The respondent submitted that there was nothing unusual about how the respondent selected candidates for interviews or the scores assigned to them. The respondent submitted that it was not required to “go behind” the applicant’s resume to determine if he had qualifications not listed there. The applicant stated that he felt the process was unfair, but did not link the selection process or the promotion of other employees to any prohibited grounds of discrimination. The respondent noted that the applicant made no submissions in support of his allegations of reprisal.

Analysis

12An applicant need not adduce any particular kind of evidence to establish differential treatment in a hiring or promotion case. Rather, to prove discrimination in a hiring or promotion case, an applicant must be able to show that one of the grounds in the Code was a factor in the decision not to hire or promote him or her. (See: Nelson v. Lakehead University, 2008 HRTO 41). Evidence that a hiring or promotion decision was tainted by discrimination can include (but is not limited to) that the applicant was qualified for the particular employment; the applicant was not hired; and/or that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (i.e., race, colour, etc.) subsequently obtained the position. (See Tahna v. Bombardier Aerospace Regional Aircraft, 2010 HRTO 1425).

13The respondent submitted that it selected candidates for interviews based on the qualifications listed on their resumes relative to the duties and qualifications set out in the job posting for the MTL position. The applicant did not point to any evidence contradicting this submission. There is nothing overtly discriminatory about such a practice and the applicant did not describe or point to any evidence that the practice had a discriminatory effect on him. Similarly, there is nothing overtly discriminatory about the respondent basing its decisions to grant interviews solely on the information provided in candidates’ resumes and no evidence to suggest that the practice has a discriminatory impact upon the applicant.

14The criteria employed to evaluate candidates reflected the duties and qualifications for the MTL position set out in the job posting. These included construction experience, supervisory experience and knowledge of the respondent’s policies, procedures and collective agreements. The applicant’s resume described considerable experience and qualifications, but none related to construction or the respondent’s policies, procedures or collective agreement and limited supervisory experience. The applicant pointed to no evidence that would suggest the selection criteria were discriminatory or that the scores assigned to him were linked to prohibited grounds of discrimination. The applicant pointed to qualifications and experience he has that he believed the successful candidates do not possess, particularly with respect to property management and operating boilers. These credentials, however, were either not required for the MTL position (boiler operations) based on the job posting or could be matched with equivalent qualifications or experience (e.g., being qualified in a trade was equivalent to property management certification).

15In my view, the evidence the applicant has or is reasonably available to him would not establish that he was qualified for the MTL position or that the successful candidates were no more qualified than he. The applicant’s assertions that the respondent promotes “its own people” is a bare assertion. The applicant pointed to no evidence that would establish that the decision not to grant him and interview was linked to a prohibited ground of discrimination.

Reprisal

16Section 8 of the Code provides:

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 of reprisal for so doing.

A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant (See: Noble v. York University, 2010 HRTO 878, at paragraphs 33 and 34). The applicant, however, made no submissions regarding allegations of reprisal. Consequently, the applicant pointed to no evidence that the respondent committed a reprisal against the applicant; therefore, this allegation has no reasonable prospect of success.

17The applicant chose to abandon his allegations regarding the Family Team Leader competition in May 2009, which was the only remaining allegation in the first Application. Accordingly, the first Application is dismissed. I find the allegation in the second Application, concerning the MTL position, has no reasonable prospect of success. As the applicant has withdrawn the other remaining allegations in the second Application, it is also dismissed.