Daley v. Fiorio Cumberland Inc., 2013 HRTO 1348

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcia Daley

Applicant

-and-

Fiorio Cumberland Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: August 2, 2013

Citation: 2013 HRTO 1348

Indexed as: Daley v. Fiorio Cumberland Inc.

APPEARANCES

Marcia Daley, Applicant Self-represented

Fiorio Cumberland Inc., Respondent Jonathan Cocker, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of race and ethnic origin. In particular the applicant alleges that she was subject to racial slurs and racially based comments during her employment at a hair salon operated by the respondent and that race was a factor that contributed to the end of her employment. The applicant self-identifies as a Black woman.

2The Application also identified record of offences as a ground of discrimination, but as discussed at the hearing this ground does not apply to the applicant and this ground of alleged discrimination was withdrawn.

3The Application was heard on July 2, 2013. I heard testimony from the applicant and three witnesses called by the applicant, all of whom are friends of the applicant and were not directly involved in any of the employment-related events. I also heard from three witnesses called by the respondent. These were Maurice Fiorio, who is the owner of the business, Marc, Fiorio, who is a colourist, and Philippe Fiorio who is the manager of the respondent’s business. The respondent’s witnesses are sometimes referred to in these reasons by their first names to distinguish them.

Background

4The applicant testified that she has always had an interest in hair styling and colouring. After exploring a number of post-secondary education options, she applied to the Fiorio Beauty Academy and she enrolled in a one-year training program from September 2010 to September 2011. The Fiorio Beauty Academy is an incorporated training facility. It is associated with a number of Fiorio salons that are all independently incorporated. Successful graduates of the Academy may be offered employment in one of the salons. In this case, the applicant was offered employment at the Fiorio Cumberland salon and she started this employment on September 12, 2011. The employment ended in April 2012.

5The witnesses for the respondent provided evidence about the structure of the salons. Fiorio salons employ people who specialize in styling and cutting and colouring. The company has an internal hierarchy of expertise. The first level correlates with a government apprenticeship certification system. A person will generally start as an assistant. The assistant may work only as an assistant or may register with the government apprenticeship program. If the person registers with the apprenticeship program, he or she must complete a set number of hours and then successfully complete a test.

6After being an assistant or apprentice, a person may become a level 1 stylist or colourist, progressing to level 2 and finally level 3. A level three stylist or colourist has the title of Master Stylist or Master Colourist. Marc Fiorio is a level 3 or Master Colourist.

7The applicant was hired as an assistant. She did not register in the government apprenticeship program. She testified that she generally worked on the second floor which was used for colouring. She testified that she anticipated that she would be given clients to work on and that she would be closely supervised while doing any colouring work. She testified that during the period of her employment she was only given about five clients and she felt that she was not adequately supervised.

8The first three months of the applicant’s employment was a probationary period. On one day in this period the applicant became involved in a dispute with a co-worker, who was also an assistant, about which of them should be assisting one of the stylists with a client. The evidence of the respondent’s witnesses, which was not contradicted by the applicant, was that as a result of this incident, the stylist who was involved felt that the applicant should be fired. Marc Fiorio testified that he intervened on the applicant’s behalf and said that she should not be fired and that he would work with her. Philippe Fiorio, the manager of the salon, confirmed this in his testimony.

9The applicant testified that while she worked closely with Marc Fiorio, she did not think of him as a mentor and in her opinion, he did not provide adequate supervision. Marc Fiorio testified that he liked the applicant as a person and enjoyed talking with her about work and non-work-related matters. He testified that he was shocked by the Application which alleged that Marc Fiorio in particular discriminated against her.

10The Application set out three specific allegations, which are discussed below.

Allegations of name calling

11The applicant testified that Marc Fiorio sometimes referred to her using names such as “Laquesa” and “Shenana” that she considered derogatory because she believes they are “ghetto” names that have been associated with Black women who are uneducated and poor. She testified that Marc was aware of the connotation of these names and knew that she objected. She testified that she told him to stop calling her “Laquesa” and that he did stop. However, he continued to use other similar names. She testified that this sort of name calling stopped by about January 2012. She believes that this is because the behaviour “escalated” as described below.

12The applicant testified that at first she thought that Marc was using these names to show that he was “down with the culture”, and as a way of relating to her in a positive way. However, she subsequently decided that the names were offensive and racist.

13Marc Fiorio testified that he did have a conversation with the applicant about names such as “Laquesa”. He testified that he had watched a humorous You Tube video that used these names in relation to Black women. He testified that he talked to the applicant about the video. He said that she did not seem to be offended by the conversation or suggest that it was unwelcome. Marc testified that he did not call the applicant by any nick name and added, that if he did, he would hope that she would have let him know if she was offended.

Reference to Kunta Kinte

14Kunta Kinte is a character in the novel “Roots” and the television mini-series based on the novel. The character is a slave who is subject to some of the worst abuses of slavery. In the story Kunta Kinte’s foot is brutally amputated in reprisal for escape attempts. The applicant referred to Google images of Kunta Kinte showing him shackled and chained.

15In the Application the applicant alleged that Marc referred to Kunta Kinte in a conversation with her and said “don’t let me cut off your foot like Kunta Kinte.”

16In her testimony, the applicant indicated that at the time of the comment, she did not know exactly what the reference was about. She indicated that she had not watched or read “Roots” and so was only vaguely aware of the significance of the name. She testified that after her employment ended, she “Googled” the name and saw the images noted above. She said that it was then that she realized that the reference by Marc in conversation with her was clearly racist.

17In the Application, the applicant indicated that Marc made the reference to Kunta Kinte in about January 2012. In her testimony, she indicated that he made the reference twice and that the second time was in March 2012, shortly before her employment ended. She agreed in her testimony that she had not mentioned a second incident in the Application.

18Marc testified that he did have a conversation with the applicant about Kunta Kinte. He testified that this was in relation to a song by Missy Elliot. Missy Elliot is a well-known Black performer who sings rap, hip hop and R&B songs. The song is called “Work It” and the respondent provided a copy of the lyrics to the song with its hearing documents. The reference to Kunta Kinte comes near the end of the song, which is otherwise primarily concerned with sexual issues. The reference, according to the lyrics provided is:

Just ‘cause I got a lot of fame supa

Prince couldn’t get me change my name papa

Kunta Kinte a slave again, no sir

Picture black sayin’ “Oh yes a master”.

19Marc testified that he had downloaded a “best-of” album of Missy Elliot’s songs. When he listened to the “Work It” lyrics, he was curious about the reference to Kunta Kinte. He had the song on his phone and played the section containing the reference to the applicant and asked her what the reference was about. He testified that the applicant told him it was a reference to a Black slave who had his foot cut off. Marc testified that this conversation happened around January 2012 although he could not be specific.

20Marc testified that he frequently discussed music and You Tube videos with the applicant, as they had similar musical interests.

21Marc testified that he never referred to the applicant as Kunta Kinte or said anything about cutting her foot off. He testified that there was only one conversation involving Kunta Kinte and that it was only in regard to the Missy Elliot song.

Allegations of the use of the term “Master”

22In the Application the applicant alleged that on two occasions when Marc was asking her to do something, he stated “listen to master” and that the reference was intended to suggest a master – slave relationship between her and Marc.

23Marc testified that he had not referred to himself as a “master” in the way alleged by the applicant and that he would never do so. He noted that his official designation is Master Colourist and speculated that he might have referred to himself in that way and that the applicant might have heard only “master” and not “Master Colourist”. However, he indicated that he does not usually use the term “Master Colourist” when speaking to fellow employees. The applicant testified that the reference was only to “master” and not to “Master Colourist”.

24In her testimony, the applicant referred to only one occasion when Marc allegedly referred to himself as “master”. She testified that this arose following a discussion on a Friday about business cards that were to be printed for the applicant. She wanted one particular designation indicated on her card but Marc and Phillipe did not agree. She testified that on the following Monday she came to work and that Marc said “now Marcia, you’re going to listen to Master.” She testified that she and Marc then stared at each other for about 30 seconds because of the seriousness of what he had said and his recognition of the inappropriateness of the comment. She testified that after this she “got through the day”. Later that night is when she Googled the images of Kunta Kinte. She testified that she then determined that she could no longer go to work because of the racism expressed in the reference to Kunta Kinte and the “master” comment and the earlier name calling. She therefore stopped going to work on or about April 3, 2012.

Termination of the applicant's employment

25While the applicant testified that she stopped going to work on or about April 3, 2012 because the environment was no longer tolerable, the respondent’s evidence is that the applicant was dismissed from employment because of performance issues. A Record of Employment was issued on April 24, 2012, indicating that the reason for issuing the Record of Employment was “M” or “dismissal” and that the last day for which the applicant was paid was April 12, 2012. It appears that no letter of termination of employment was sent.

26According to the testimony of Marc and Phillipe, the applicant was told that while she was being dismissed “the door was always open” in the future if she wished to apply again for a job.

27The respondent asserts that the applicant’s employment was terminated because of performance issues. These included problems getting along with other employees, problems listening carefully to the wishes of clients, and a failure to follow direction. The respondent’s witnesses confirmed that there was no written documentation of any performance issues during the period of the applicant’s employment. The respondent’s witnesses indicated that there were verbal discussions about performance issues. Marc and Phillipe testified that there were many complaints from clients whose hair the applicant had coloured. However, the only specific incident that was mentioned related to a situation early in the applicant's employment.

28The applicant testified that she was not given any formal warning from her employer about performance issues although she did not contest that there were issues that arose and that there were verbal discussions following some of these. She indicated that she felt that she was treated “like a slave”. In particular, she felt that she was always doing cleaning and was not assigned much client work. She believes that she was very diligent and frequently took on tasks without being asked.

29The applicant agreed that she did not make any complaint about her concerns about comments that were made to her. She testified that on one occasion she tried to approach Maurice Fiorio, the owner of the business, but he told her that he did not want to get involved. On this point, Maurice Fiorio testified that the applicant did approach him on one occasion about concerns she had. He understood that there was a personality clash between the applicant and another employee and his policy is not to get involved in such matters. He testified that the applicant did not indicate that she had any concerns about harassment or discrimination and that he would have addressed any such concerns if they had been expressed.

Involvement of the applicant's friends

30I heard evidence from three friends of the applicant who were called by her as witnesses.

Radcliffe Dockery

31Radcliffe Dockery testified that he has known the applicant for a few years. He has general knowledge of discrimination issues through his involvement as a diversity officer in employment settings. He and the applicant lost touch for a while but connected on social media in late 2011. Their contact at that time was about another friend of the applicant who was looking for a job. Mr. Dockery indicated that sometime later the applicant contacted him and mentioned that she was “possibly being discriminated against”. He said that she did not provide any details. He advised her to document what was happening and to raise the concern with the person or persons involved.

32Mr. Dockery testified that sometime after this the applicant contacted him again. He thought this could have been in about April 2012. This time she seemed upset and indicated that she had experienced some form of racism. He said that she did not provide details but he did recall that she mentioned a comment about Kunte Kinte. He recalled that she did say that she felt she had to leave her employment because the conditions were not tolerable.

Rebecca McCreight

33Ms. McCreight has been a friend of the applicant for several years. She and the applicant had periodic telephone conversations during the period of the applicant’s employment with the respondent. Ms. McCreight testified that the applicant was frequently distressed about things at work. She complained that she was doing a lot of sweeping and not much hair work. Ms. McCreight testified that the applicant did mention a comment at work about Kunte Kinte. However, Ms. McCreight could not recall any details about this.

34Ms. McCreight also recalled that the applicant told her that a supervisor at work had referred to himself as “master” and Ms. McCreight thought that the applicant might have indicated that the supervisor referred to the applicant as Kunte Kinte at the same time. She was not sure when the applicant told her about this.

35One of the conversations between Ms. McCreight and the applicant was recorded on Ms. McCreight’s telephone. She indicated that she has an app on her phone that allows her to record conversations. The applicant asked to have the recording entered into evidence. She had made a number of attempts to send the recording to the Tribunal and the respondent in advance of the hearing but had not been able to send a recording in an appropriate format.

36On behalf of the respondent, Mr. Cocker advised that he could not consent to the recording being put into evidence until he listened to it. Arrangements for this were made and Mr. Cocker reviewed the recording over the lunch break. He then indicated that he had no objection to the recording being heard as evidence.

37We then attempted to listen to the recording during the hearing. The conversation starts with a discussion about issues with the applicant’s phone. The conversation then becomes very hard to follow as the recording appears to be very jumpy. Ms. McCreight explained that she had accidently dropped her phone in water and that this was why the recording was not good.

38The applicant was asked what would have been heard if the recording had been good. She indicated that she did not expressly say anything to Ms. McCreight about racism at work. She instead expressed a continuing dissatisfaction with various work-related issues. She testified that the conversation with Ms. McCreight was preceded by a conversation with Phillipe in which Phillipe made a comment about her arms being muscular. She felt uncomfortable about this remark and mentioned it in the telephone conversation with Ms. McCreight. Ms. McCreight testified that during the conversation she told the applicant that Black woman may have a hormonal tendency to muscular arms and that therefore the comment by Phillipe could be inappropriate on the basis of race.

Marvin Nunes

39Mr. Nunes has known the applicant for about ten years. He testified that he spoke to her before she started the employment and knew that she was looking forward to working at the salon. However, in conversations after she started, she indicated that she was unhappy because she was mostly doing cleaning work and was not assigned clients.

40Mr. Nunes testified that the applicant told him that there were inappropriate remarks made to her at work. He could not recall many details about this but remembered that she said something about a supervisor saying that he was her master and that she was Kunte Kinte. He was certain that she had mentioned being called Kunte Kinte by her supervisor and indicated that he understood that this comment had been made only on one occasion.

The legal test

41Section 5 of the Code provides:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

42“Harassment” is defined in section 10:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

43The applicant has the onus of proving that the respondent violated her Code rights. This must be established on a balance of probabilities meaning that the applicant must be able to show that it is more probable than not that the allegations of racial discrimination or harassment occurred. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46.

44The applicant and Marc Fiorio provided differing accounts of what was said between them and the context of those conversations.

45In this case, the evidence in support of the applicant's allegations consists almost entirely of her own testimony about what she alleges was said and the context of those statements. The Application turns primarily on conversations between the applicant and Marc Fiorio which were not witnessed or documented. There is little or no evidence that could directly corroborate the allegations. For the Application to succeed, I must therefore be able to place confidence in the applicant's testimony. I must also, of course, assess the credibility of the evidence of the respondent’s witnesses, and in particular, the evidence of Marc Fiorio. However, this exercise is not limited to an assessment of whether the evidence of the applicant is more credible and reliable than Mr. Fiorio’s evidence. Even if I find that Mr. Fiorio’s evidence is not credible and reliable, for the applicant to succeed, I must also be able to find that the applicant’s evidence is credible and reliable because there is otherwise no credible and reliable evidence to support the allegations.

46In assessing the credibility and reliability of evidence, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), pages 356-357:

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.

47I have also considered the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205, regarding assessment of reliability of evidence:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Analysis

48The applicant and Marc agree that there were conversations between them that involved the use of what the applicant calls “ghetto” names, and at least one conversation about Kunta Kinte. There is not agreement that there was a conversation in which Marc referred to himself as “master”, although Marc indicated that it was possible he referred to himself as a “Master Colourist”.

49I find that inconsistencies in the applicant’s evidence means that her evidence cannot be accepted as entirely reliable. As discussed below, important inconsistencies include confusion about how many conversations there were regarding Kunte Kinte, and how many conversations there were that involved reference to “master”.

50The applicant testified that Marc referred to her as Kunte Kinte on two occasions and also referred to himself as “master” on two occasions. The applicant did not mention the Missy Elliot song in her evidence in chief but she did not dispute that Marc played her the Missy Elliot song when he testified to this effect and she agreed that he asked her about the Kunte Kinte reference in the song at that time. She indicated that while in retrospect she believes that it was not appropriate for Marc to ask her about Kunte Kinte at all, at the time, she did not think there was anything inappropriate about it.

51Both witnesses agree that there was a reference to Kunte Kinte in respect to the Missy Elliot song. The applicant did not mention this in her direct evidence and instead referred to two other occasions. However, she was quite vague about when these occasions were or what the context was. The applicant’s testimony that Marc referred to her as Kunte Kinte on two occasions, combined with her agreement that Kunte Kinte was also referred to in the context of the Missy Elliot song, suggests that there may have been three conversations about Kunte Kinte.

52This, combined with the fact that the applicant failed to mention the Missy Elliot discussion during her own testimony, and the fact that the applicant could not recall any details about the circumstances about the other occasions when Marc allegedly referred to her as Kunte Kinte, raises questions about the allegation that Marc referred to her as Kunte Kinte in the discriminatory manner alleged by the applicant.

53The applicant testified that Marc used the term “master” in relation to her on two occasions. She could clearly remember the occasion on or about the last day she worked because she was immediately shocked. She testified that she and Marc stared at each other for some time because of the seriousness of the comment. She testified that she only made it through the rest of the day with difficulty and then realized that she could no longer continue in the employment. She indicated that she could not recall the other occasion when Marc used the term “master”.

54Given the applicant's evidence about the alleged incident on the last day she worked, it is difficult to understand how the applicant is unable to recall the earlier alleged occasion when Marc allegedly referred to himself as “master”. This, in addition to the fact that only one occasion was mentioned in the Application, raises doubts about the reliability of the applicant’s evidence that Marc ever referred to himself as master in the context alleged by the applicant.

55I find that the applicant has not established, on a balance of probabilities, that Marc referred to her as Kunte Kinte in the manner she alleges or that he referred to himself in the manner she alleges.

56In regard to the use of “ghetto names”, the applicant testified that at first she did not consider these names to be racist. She thought that Marc was trying to show that he was “down”. She testified that she later asked him to stop calling her “Laquesa” and that he did stop but continued to call her other names until January 2012 when he stopped. She did not ask him to stop calling her the other names.

57As noted above, “harassment” means a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

58Marc testified that he did have a conversation with the applicant about these sorts of names and that the context of that conversation was a You Tube video that correlated these names with poor and unintelligent Black women. Given this, evidence of subsequent use of these names in reference to the applicant is arguably evidence of harassment. However, the applicant testified that at least at first, the alleged use of the names was not unwelcome by the applicant. When she asked Marc to stop using one name he did. He allegedly continued to use other names but she did not tell him to stop. However, he then did stop.

59Marc testified that he did not call the applicant these names. However, he added that if he did, he would have expected that the applicant would have told him if the names bothered her. This suggests that Marc may in fact have called the applicant the names. However, on the applicant's evidence, Marc did stop when the applicant told him that the use of one name was unwelcome and stopped using the names altogether some time later. In the interim, she did not inform Marc that the use of these other names was unwelcome.

60I am unable to conclude, on a balance of probabilities, that Marc continued to call the applicant names that he knew or ought reasonably to have known were unwelcome.

61In my view, the available evidence suggests that the applicant only came to the conclusion that she had been subject to racism at work on or about the last day that she worked. According to her evidence, it was on that day that Marc referred to himself as master in a manner that was immediately shocking and racist and that it was only after this that she researched Kunte Kinte and only at that point that she realized that Marc’s earlier reference to Kunte Kinte was racist.

62Since the applicant testified that she only realized the significance of the reference to Kunte Kinte when she went home after her last day of work, it would seem to follow that the applicant probably only told her friends about the reference after that because prior to her research, the reference was not significant to her.

63I further note that the testimony of the applicant’s friends shows that during the period of her employment, the applicant expressed dissatisfaction about the job but this was related to complaints about doing a lot of cleaning work and not getting the colouring experience that she had hoped for. These witnesses confirmed that they heard from the applicant that she had been called Kunte Kinte and that her supervisor had referred to himself as “master”. Mr. Radcliffe testified that he heard about this comment and that the applicant had experienced racism at work in about April. Ms. McCreight was not sure when she heard about the allegations of racism related to work. Ms. McCreight and the applicant both agreed that the recorded telephone conversation did not include any reference to racism. Mr. Nunes confirmed that he heard about the applicant's dissatisfaction about mostly doing cleaning work and not getting colouring work. He also confirmed that he heard something about a supervisor saying that he was her master and that she was Kunte Kinte. He was also certain that she had mentioned being called Kunte Kinte by her supervisor. He indicated that he understood that this comment had been made only on one occasion.

64If it is true that Kunte Kinte was referred to only once, then the context of that reference must have been the discussion about the Missy Elliot song since both witnesses agreed that this conversation took place. The applicant testified that Marc did not refer to her as Kunte Kinte in that conversation or say anything about cutting off her leg.

65It appears to me that it not likely coincidental that the applicant’s allegations about racist comments allegedly made by Marc arose at the same time that the respondent terminated the applicant’s employment, allegedly for performance issues.

66It is apparent that the applicant felt that the allegations of performance issues were unfair and not accurate. She notes that the allegations of performance issues were not documented prior to the termination and feels that complaints from clients only arose because she was not properly supervised.

67It is possible that after the termination of her employment, the applicant’s recollections about conversations with Marc and the context of those conversations, was coloured by her sense of injustice about the termination of her employment.

68At the end of the hearing, the applicant suggested that the termination of her employment was in some way motivated in part by racial discrimination and was therefore discriminatory. The respondent noted that this is not a theory that the applicant advanced in the Application. It is also not consistent with her evidence that she decided she could no longer work for the respondent. There is no evidence that the employment was terminated in reprisal for attempts to enforce her Code-protected rights because the applicant did not make any complaint to the respondent or raise her allegations with the respondent prior to the termination of her employment. Although she did once attempt to speak to the owner of the business, this conversation did not proceed.

Conclusion

69On the basis of the evidence before me, I conclude that the applicant has not established that her Code-protected rights were infringed during her employment with the respondent.