Tsahaye Maekebay v. 3M Canada Company, 2013 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tsahaye Maekebay

Applicant

-and-

3M Canada Company

Respondent

DECISION

Adjudicator: Eric Whist

Date: September 11, 2013

Citation: 2013 HRTO 1516

Indexed as: Maekebay v. 3M Canada Company

APPEARANCES

Tsahaye Maekebay, Applicant

Self-represented

3M Canada Company, Respondent

Elizabeth Traynor, 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 with respect to employment on the basis of race and colour.

2On May 29, 2013, the Tribunal, in response to a request from the respondent, issued a Case Assessment Direction ("CAD") directing that a summary hearing be held pursuant to Rule 19A of the Tribunal's Rules of Procedure. A summary hearing is held to determine whether an Application should be dismissed in whole or in part on the basis that there was no reasonable prospect that the Application, in whole or in part, will succeed.

3The summary hearing was held by teleconference on August 27, 2013. During the summary hearing, I heard from the applicant and counsel for the respondent. In addition, I had before me the Application, Response (with additional documents filed by the respondent) and the Reply.

4For the reasons that follow I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.

FACTS AND SUBMISSIONS

5The applicant self identifies as being Black. He is an engineer by training. It was agreed that he has applied for 16 job competitions with the respondent that he was selected to be interviewed in six of these job competitions and that he participated in nine interviews. The applicant is of the view that racial discrimination must account for why he has not been hired to date by the respondent.

6The applicant alleges that one particular experience he had reveals the discriminatory attitudes and barriers he has faced in his attempts to find employment with the respondent. The applicant was interviewed on April 2, 2012, for an engineering position in the respondent's London plant. He alleges that at his second interview of the day he asked one of his two interviewers, Paul Berkmortel, what was the next step in the interview process. He alleges Mr. Berkmortel replied by saying they (the respondent) would be better to hire nobody than to hire someone they did not like. The applicant is of the view that this statement, when considered in the context of Mr. Berkmortel's conduct at the interview, including his sarcastic comments and general lack of participation, is an indicator that he was not going to be fairly assessed by Mr. Berkmortel. He submits this comment revealed Mr. Berkmortel's crude bigotry and the respondent's discriminatory practices.

7The applicant submits that he met the qualifications for the positions he applied to and in some instances, was over qualified. He submits that he was well qualified for the job in London for which he was interviewed on April 2, 2012 given his experience in working with solvents. He submits that in one job interview he had with the respondent for a position at its Brockville plant he was told he was overqualified.

8The applicant submits that discriminatory practices in employment are commonplace, easy to carry out and difficult to detect.

9The respondent submits that the screening for the 16 job competitions would have been done by many different persons and it is not reasonable to find that there would have been a widespread intent to discriminate against the applicant during the screening of written job resumes which do not identify a person's race or colour. It submits that a more logical explanation for why the applicant was not selected for an interview in some job competitions is the fact that the respondent's job competitions attract lots of qualified candidates. The respondent submits that its records show large numbers of applicants for the 16 jobs competitions. The respondent submits that the applicant was selected for an interview in six job competitions, including the London job competition for which there were over one hundred applicants.

10The respondent submits that its recorded interview scores for the London job competition show that the four persons evaluating the job candidates (which did not include Mr. Berkmortel) consistently ranked one candidate first, while the applicant was generally ranked third out of the seven interviewed candidates. It submits that the applicant did receive high scores based on his qualifications and experiences with solvents, but scored less well in other competencies required for the job. It submits that the applicant has no reasonable prospect of showing that this job competition process was discriminatory.

11The respondent submits that Mr. Berkmortel may have been abrupt and "prickly" in his manner. However, his comments during the applicant's interview were not racist or discriminatory, but rather were an attempt to communicate that the respondent will not hire an individual for a given job until they find the right person for that job.

12The respondent submits that if someone commented that the applicant was overqualified this was not necessarily an indicator of discrimination.

13The respondent submits that the applicant allegations and speculations are not enough to establish that he has a reasonable prospect of success, that he has not pointed to any evidence to link the respondent's actions to his allegations of discrimination based on race and colour.

ANALYSIS AND DECISION

14Rule 19A reads:

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.

15In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

16In this case the issue is whether the applicant has evidence or can point to evidence that can establish that the respondent's actions- its treatment of the applicant- is, in some measure, based on the applicant's race and colour. The Tribunal does not have the power to deal with general allegations of unfair treatment. At a summary hearing an applicant has to show why his or her assumptions or beliefs for why they have been treated unfairly are linked to a Code ground. There must be an evidentiary basis beyond mere accusations or speculation for an applicant to succeed at a summary hearing.

17In making my decision I have not relied on the respondent's submissions which generally rely on potential evidence the respondent disclosed as part of its Response. Rather, the determination I must make is whether the applicant has evidence or can point to evidence that can link the respondent's alleged actions with the claimed grounds of discrimination. If he can point to this evidence, the matter proceeds to a hearing on the merits at which time the parties may lead the evidence they intend to rely on.

18The applicant's assertion that he was a qualified candidate for the jobs he applied for does not, on its own, constitute evidence that the decision not to interview him or hire him is linked to his race and colour. While the applicant may believe this to be true it is, in my view, mere speculation. The applicant has not pointed to any evidence to show that he was differentially treated. There is no evidence, for example, that unqualified persons of a different race and colour were selected.

19Apart from the applicant's general assertion noted above about his qualifications and the failure to secure employment, the applicant also makes two further claims about his qualifications and his failure to secure employment through a competitive job competition process. First, that he has experience with solvents, one of the required qualifications for the London plant job for which he was interviewed and secondly, that he was told he was overqualified for the Brockville position for which he was also interviewed. In my view, these additional claims do not further the applicant's position with respect to whether there is a reasonable prospect of success for his Application. The reference to the applicant having experience in solvents is an example of how he was qualified for one of the jobs. But that is all that I am prepared to infer from this evidence. The applicant has not pointed to evidence to suggest that other candidates were not qualified for this position.. The reference to the applicant being told he was overqualified was an unparticularized comment made by the applicant during the course of the hearing and, as presented, it does not establish an evidentiary basis for concluding that the applicant has a reasonable prospect of proving that he was discriminated against by the respondent in general or in the specific Brockville job competition.

20The applicant does point to a specific incident as evidence of the respondent's discriminatory treatment, namely comments made by Mr. Berkmortel's during an interview on April 2, 2012, for a job at the respondent's London plant. The applicant alleges Mr. Berkmortel told him that the respondent would hire nobody rather than somebody they did not like. I do not find that Mr. Berkmortel's alleged comment, even if accepted as true, indicates that the respondent specifically did not want to hire the applicant for this particular job or any other position within the respondent company because it did not like him and that it did not like him because of his race and colour. I do not find that the applicant has shown why there is a reasonable prospect that the Tribunal would conclude that this comment was evidence of discrimination based on race and colour, rather than a comment about the respondent's interest in only hiring a strong candidate.

21The applicant acknowledged that the actual words used by Mr. Berkmortel might not, in themselves, indicate a discriminatory attitude but submits that when the comments are considered in the totality of Mr. Berkmortel's actions they could. He alleges Mr. Berkmortel stated at the outset of his interview that he was there to collect information about the applicant in case the applicant would want to interview for a position in Mr. Berkmortel's lab eight years down the road. He alleges that Mr. Berkmortel spent most of the interview looking at the applicant's resume and that the only question he asked in the interview was what the applicant's communications style was, a question he then asked for a second time at the interview. The applicant is of the view that Mr. Berkmortel's sarcasm as evidenced by his reference to a job prospect eight years down the road, his tone of voice and his general aloofness are evidence that Mr. Berkmortel's reference to the respondent choosing to hire nobody rather than someone they did not like was "pure discrimination".

22I find this claim to be speculative. Even if Mr. Berkmortel's treatment of the applicant was rude and unfair, the applicant has not linked this behaviour and treatment to his race and colour. The onus on the applicant in a summary hearing is higher than simply establishing that something adverse happened to him and that he is also a person of colour. He must point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race and colour.

23The applicant submits that it is difficult to detect discriminatory practices in employment. I agree. The Tribunal has long accepted that is often difficult to establish direct evidence of discrimination and the Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that discrimination is more likely than not one of the factors associated with the conduct in question. However, the applicant has not pointed to evidence which will allow the Tribunal to draw the inferences that the applicant wishes the Tribunal to make.

24I accept the applicant may honestly believe that the respondent treated him as it did because he is Black. However, the applicant's belief that the respondent mistreated him on the basis of his race and colour is not evidence that the respondent did so. As stated in Exil v. Liberte Brand Products, 2012 HRTO 382, it is not open to the Tribunal to make a finding of discrimination based only on an applicant's assertions. The Tribunal cannot find that the respondent discriminated against an applicant unless there are facts alleged that, if true, would allow the Tribunal itself to conclude that the respondent's actions towards the applicant were linked to a prohibited ground of discrimination under the Code. There are no such facts alleged in this case.

25The Application is dismissed.