McCalla v. Home Depot of Canada, 2012 HRTO 877

Carlene McCalla

Applicant

-and-

Home Depot of Canada and Tanja MacPherson

Respondents

Adjudicator: Ken Bhattacharjee

Date: May 3, 2012

Citation: 2012 HRTO 877

Indexed as: McCalla v. Home Depot of Canada

appearances

Carlene McCalla, Applicant ) Self-represented

Home Depot of Canada and ) Jonathan L. Dye, Counsel

Tanja MacPherson, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. This issue was addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2The organization respondent, Home Depot of Canada, is a national home building supply and hardware retailer which operates stores across Canada. The individual respondent, Tanja MacPherson, is the Human Resources Manager of a Home Depot store in Oshawa.

3The applicant, Carlene McCalla, identifies as a Black female of Jamaican ancestry and a Seventh-day Adventist. In 2005, she began working as a cashier at a Home Depot store in Oshawa. The applicant requested and was allowed to take every Saturday off as an accommodation of her religious beliefs. In February 2010, she was promoted to the position of Head Cashier.

4On April 1, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") which alleged that the respondents discriminated against her with respect to employment because of her race, colour, ancestry, place of origin, ethnic origin, and creed. Specifically, she made the following allegations:

In March 2011, the respondents denied her a promotion to the position of Staffing Coordinator which had Human Resources ("H.R.") support functions.
The respondents earlier denied her a promotion to the position of Front End Department Supervisor. (The Application did not specify when this denial occurred.)
After she became Head Cashier in 2010, the respondents only scheduled her "one Sunday off and one that I requested."

5The applicant explained that she obtained a post-graduate certificate in HR Management because she was interested in developing a career in HR with the organization respondent, but was blocked by the respondents from advancing because she is Black and a Seventh-day Adventist.

6With respect to the grounds of race, colour, ancestry, place of origin, and ethnic origin, the applicant stated she believed that she was denied the Staff Coordinator position because of subtle racial discrimination. She stated that when she was denied the Front End Department Supervisor position, one of the interviewers offered her the opportunity to develop her HR skills by working on an HR project with the HR Manager at that time, and by meeting with the District Talent Manager, but when she asked the HR Manager about the project, she responded that she knew nothing about it, and her meeting with the District Talent Manager also amounted to nothing. The applicant also stated that when she was completing her certificate in HR management in 2009, the HR Manager at that time denied her request to complete a five-week placement in the HR department.

7By contrast, the applicant stated, the individual respondent, who is White, was provided with a temporary position and training in HR by the organization respondent, and eventually became the HR manager of the store. The applicant further stated that none of the Department Supervisor, Assistant Store Manager, Store HR Manager, Store Manager, or Staff Coordinating positions in the store are held by racialized persons.

8With respect to the ground of creed, the applicant stated that she believes that she was also denied the Staffing Coordinator position because its duties involved participating in job fairs and orientations that are held on Saturdays.

9The respondents filed a Response on June 22, 2011 which denied the allegations of discrimination. Specifically, the respondents stated that the organization respondent used a standardized recruitment process to fill the Staffing Coordinator and Department Supervisor positions, which involved pre-printed interview questions and a scoring system.

10With respect to Staffing Coordinator position, the respondents stated that the applicant was one of the seven candidates who were interviewed for the position, that she received the lowest score (2.7 out of 5) along with two other candidates, and that four other candidates received a higher score than her, including the successful candidate who had the highest score (3.3 out of 5). The respondents stated that the applicant received a low score because she had difficulty answering the interview questions, and ultimately did not provide relevant answers.

11With respect to the Department Supervisor position, the respondents stated that the position was one of the most demanding supervisory positions in the store, that the applicant lacked strong leadership skills, and that the position was given to a candidate who was superior to her.

12The respondents also stated that the applicant was denied a temporary placement in HR in 2009 because she was still a cashier at that time and the HR Manager had legitimate concerns that the applicant would be exposed to confidential matters in such a placement. The respondents further stated that the store employs a higher percentage of racialized persons, including Black individuals, than in the general population of Oshawa, and that the individual respondent, who interviewed the applicant in the competition for the position of the Staffing Coordinator, is herself a Seventh-day Adventist.

13The respondents attached a number of documents to their Response, including two of the applicant's résumés; the interview questions, recorded answers and scores for the applicant with respect to the competition for the position of Staffing Coordinator; and the organization respondent's statistics on the "visible minority" and "religious or spiritual" composition of the workforce at the store in Oshawa.

14On August 9, 2011, the Tribunal issued a Case Assessment Direction which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success.

15The summary hearing took place on January 25, 2012. During the hearing, I invited the respondents to provide additional statistics on the racial composition of staff at the Department Supervisor and Manager level of the store in Oshawa, and the applicant's time cards to show how many Sundays she had off. On February 1, 2012, the respondents filed the applicant's time cards and written submissions. On March 15, 2012, the applicant filed written submissions in response. The respondents did not file additional statistics on the racial composition of staff at the Department Supervisor and Manager level of the store, and did not address this issue in their written submissions.

TIMELINESS

16The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17Neither the applicant nor the respondents specified in their pleadings when the competition for the position of Front End Department Supervisor took place. As such, at the hearing I asked the parties to specify when the applicant was denied the position. The applicant stated that she was denied the position in 2009, while the respondents stated that the denial occurred in 2008. I then invited oral submissions from the parties on whether the Application is out of time.

18In her submissions, the applicant stated that the denial was part of a series of events that culminated in the respondents' decision to deny her a promotion to the position of Staffing Coordinator in March 2011. She stated that she did not file an Application after she was denied the Front End Department Supervisor position because she took the respondents at their word that they would work with her to help her move forward with a career in HR.

19The first issue to consider is whether the alleged incidents of discrimination in the Application constitute a "series of incidents". Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360, at para. 9. In the case at hand, there was a break of more than one year between the decision to deny the applicant the Front End Department Supervisor position, which occurred at latest in 2009, and the decision to deny her the position of Staffing Coordinator, which occurred in March 2011. As such, I find that the allegation that the respondents denied the applicant a promotion to the position of Front End Department Supervisor is not part of a series of incidents, and is beyond the one-year statutory deadline.

20The second issue to consider is whether the applicant's delay in filing her Application with respect to this allegation was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay....

21Therefore, in order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. I am not satisfied that the applicant's delay in filing her Application with respect to this allegation was incurred in good faith. Her oral explanation that she took the respondents at their word that they would work with her to help her move forward with a career in HR directly contradicts the statements in her Application which allege that the respondents subsequently blocked her from developing her HR skills in 2009.

22In view of my finding that the applicant's delay in filing her Application with the Tribunal with respect to this allegation was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The allegation that the respondents denied the applicant a promotion to the position of Front End Department Supervisor in 2009 is therefore dismissed.

23The Vice-chair or Member assigned to the merits hearing will determine the extent, if any, to which the applicant's factual allegations in relation to 2009 may be relied upon as background or contextual evidence.

REASONABLE PROSPECT OF SUCCESS

24Rule 19A.1 of the Tribunal's Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

25Furthermore, in Dabic, supra, the Tribunal made the following comments at paras. 8-10:

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.

26With respect to the allegation that the respondents denied the applicant a promotion to the position of Staffing Coordinator, the applicant submitted that it has a reasonable prospect of success because she has evidence that she was fully qualified for the position, that the respondents denied her developmental opportunities in HR, but provided such opportunities to a White employee, and that the organization respondent does not have any racialized staff in the Department Supervisor and Manager level of the store. She also stated that it was well-known that the position involved participating in job fairs and orientations that are held on Saturdays, and that she never worked on Saturdays because of her religious beliefs. She further stated that the respondents have not disclosed any information about the other candidates for the position, which makes it impossible at this stage to conduct a comparative analysis.

27In its submissions, the respondents stated that this allegation does not have a reasonable prospect of success because they used a standardized interview process during job competition, and the applicant's scores were lower than the successful candidate. They also stated that the applicant did not point to any evidence that she has or that is reasonably available to her that can show a link between the respondents' decision to deny her the position and the Code grounds listed in her Application. They further stated that the applicant had, in fact, been promoted to the position of Head Cashier in February 2010, which contradicts her allegation that they were blocking her from advancing.

28Courts and tribunals have recognized that racial discrimination can be the result of subtle, unconscious beliefs, biases, and prejudices, and is often only proven by circumstantial evidence and inference. See Shaw v. Phipps, 2012 ONCA 155, at para. 34; Sinclair v. London (City), 2008 HRTO 48, at para. 18; and Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.), at para. 482. At this preliminary stage, the applicant has satisfied me through her submissions that there is a reasonable prospect that evidence that she has or that is reasonably available to her can show a link between the respondents' decision to deny her the position and the Code grounds listed in her Application. I appreciate that the respondents have a very different view than the applicant about the quality of the evidence that the applicant has or that is reasonably available to her, but, in my view, the appropriate forum to properly assess and weigh this evidence is at a merits hearing.

29With respect to the allegation that after the applicant became Head Cashier in 2010, the respondents only scheduled her "one Sunday off and one that I requested", the applicant submitted that that it has a reasonable prospect of success because she was required to work almost every Sunday as a result of having every Saturday off, but other full-time employees had alternate weekends off.

30In its submissions, the respondents stated that this allegation does not have a reasonable prospect of success because it was not discriminatory to adjust the applicant's schedule to work more Sundays as part of the accommodation of her religious beliefs whereby she was allowed to take every Saturday off. The respondents stated that the applicant was no worse off than other full-time employees who had to work on Saturday and Sunday one week, and then neither the next week. The respondents also stated that the applicant's time cards from October 1, 2010 to March 31, 2011 show that, in fact, she had six Sundays off and seven Fridays off, which means that there were 13 occasions where she had a two-day weekend.

31In reply, the applicant stated that the four other Sundays that she had off were because she was asked to switch shifts with another employee or was sick.

32The Supreme Court of Canada's decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, defined discrimination at pp 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

33Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(...) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

34In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at para. 104 that the Tribunal must determine, among other things, whether the treatment in issue "truly creates a disadvantage."

35Furthermore, the Supreme Court of Canada has described the accommodation process as a multi-party inquiry where, among other things, the employer is in the best position to determine how the employee can be accommodated without undue interference in the operation of the employer's business, and the employee has an obligation to accept reasonable accommodation, and cannot expect a perfect solution. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), 95 DLR (4th) 577, at pp. 592-93.

36In my view, even if it is true that the applicant was required to work on most Sundays and other full-time employees were not, I cannot see how that requirement amounted to discrimination. In view of the fact that other full-time employees had to work on both Saturday and Sunday one weekend, and then neither day the next weekend, I cannot see how requiring the applicant, who never had to work on Saturday, to work on Sunday on most weekends constituted a true disadvantage. Furthermore, the applicant was not entitled to a perfect solution in the accommodation of her creed-based needs. She had an obligation to accept reasonable accommodation, which, in my view, this arrangement clearly was.

37Accordingly, the allegation that the respondents rarely scheduled the applicant off work on Sundays is dismissed.

ORDER

38The Tribunal makes the following orders:

The applicant's allegation that the respondents denied her a promotion to the position of Staffing Coordinator because of her race, colour, ancestry, place of origin, ethnic origin, and creed shall proceed to a merits hearing.
The applicant's allegations that the respondents denied her a promotion to the position of Front End Department Supervisor and rarely scheduled her off work on Sundays are dismissed.

39Given that the parties have indicated a willingness to participate in mediation, the file will be placed in the queue for scheduling a mediation in this matter.

40I am not seized of this matter.

Dated at Toronto, this 3rd day of May, 2012.

"signed by"______________

Ken Bhattacharjee

Vice-chair