Chintaman v. Toronto District School Board, 2013 HRTO 1656

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deopaul Chintaman

Applicant

-and-

Toronto District School Board, Craig Snider, Don Higgins and Lisa Kivlichan

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: October 2, 2013

Citation: 2013 HRTO 1656

Indexed as: Chintaman v. Toronto District School Board

APPEARANCES

Deopaul Chintaman, Applicant

Self-represented

Toronto District School Board, Craig Snider, Don Higgins and Lisa Kivlichan, Respondents

Glorie Alfred, 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 because of race, colour, place of origin, ethnic origin and age, and reprisal.

2At the time this Application was filed, the applicant was employed as a Cash Receipts Analyst with the Toronto District School Board (the "TDSB"). The education qualification for this position is a two-year community college diploma in business or accounting with two years related experience in accounting, or an equivalent combination of education and experience.

3The applicant alleges that from 2008 to 2009, he was subjected to reprisal, harassment and discrimination. He alleges that during this period, he applied unsuccessfully for four job competitions. He believes that he was eliminated from the competitions because of negative attitudes, stereotypes, prejudice and bias. He also believes that he was denied these jobs because of an earlier human rights complaint that he filed with the Tribunal.

4The applicant alleges further that the individual respondent, Lisa Kivlichan, harassed, discriminated and reprised against him by setting him up, disciplining him and scheduling him to do meagre or less desirable duties or jobs. He alleges that the individual respondent, Don Higgins, "turned a blind eye" to the situation.

5Finally, the applicant alleges that his employment was terminated on February 23, 2010 for discriminatory reasons or as an act of reprisal because he filed this Application.

BACKGROUND

Previous Tribunal Application

6The applicant filed an earlier Application with the Tribunal under section 53(3) of the Code. The original complaint was filed with the Ontario Human Rights Commission on June 28, 2007 against the TDSB, Craig Snider, Lisa Kivlichan and Ron Gumbley. The applicant alleged that he had been treated unfairly in 30 job competitions since 1992, the last of which was in February 2007.

7In an Interim Decision dated August 7, 2009, 2009 HRTO 1225, the Tribunal held the allegations were out of time, with the exception of the February 2007 job competition.

8The complaint proceeded to a Case Resolution Conference ("CRC") hearing on December 2 and 3, 2009 and January 15, 2010. The applicant asserted that when the respondents became aware of his human rights complaint and his questioning of the February 2007 job competition, they committed acts of reprisal against him which included disciplinary warning letters and suspensions from the workplace. The Tribunal heard evidence regarding the 2007 job competition and the acts of alleged reprisal.

9On January 4, 2010, the applicant filed this Application before the Tribunal. On February 23, 2010, the applicant's employment was terminated. The applicant subsequently amended the Application to add allegations of discrimination and reprisal in relation to the termination of his employment.

10On December 7, 2010, the Tribunal released its CRC Decision, 2010 HRTO 2418, and dismissed the complaint. The Tribunal held the applicant had not introduced any evidence to explain why he believed he had been discriminated against on the basis of age, colour, ethnic origin, place of origin and race.

11In the CRC Decision, the Tribunal addressed the discipline the applicant had received resulting from his refusal to do core duties of his job, and his belief that the discipline was a form of reprisal for filing his complaint. At paragraph 22 of the Decision, the Tribunal stated:

The applicant admitted that he decided that he was not going to "co-operate" with the respondent school board and that there were certain core duties of his current job which he considered menial and below him and which he decided to refuse to do. He was given warning letters and suspended for this behaviour. He spoke to his union, but he testified that the union said there was nothing to grieve as those duties were part of his job.

12The Tribunal found that the respondents had not committed any acts of reprisal against the applicant. The Tribunal stated at paragraph 30:

The mere fact that the applicant was disciplined after making a human rights complaint is not enough to support a finding of reprisal. He admitted that he repeatedly refused to perform certain core functions of his job because he believed that they were menial and that he did not want to "co-operate" with the defendant school board. The respondent school board applied its usual progressive discipline procedure. The applicant was not treated differently than any other employee accused of misconduct. The fact that the applicant was dissatisfied with his job and disappointed that he had been unsuccessful in job competitions did not give him the right to refuse to do his current job. The respondent school board acted appropriately in disciplining him for his insubordination.

Issues on the Request to Dismiss

13This Application proceeded to a hearing on March 25, 2013. The applicant's case consisted of the applicant's evidence only. At the close of the applicant's case, the respondents requested that the Application be dismissed on the basis that the applicant had failed to establish a prima facie case. The Tribunal advised the parties that it would issue a Case Assessment Direction ("CAD") to clarify the legal and evidentiary issues on the respondents' request to dismiss the Application and provide dates for the parties' written submissions on these issues.

14On April 12, 2013, the Tribunal issued its CAD. The Tribunal advised the applicant that there was an issue as to whether his harassment allegation has been decided in the CRC hearing. It advised further that in order to prevent a dismissal of the Application, the applicant had to point to specific evidence that he had led before the Tribunal that established a link between the failure to short-list him in the four job competitions and the termination of his employment and his race, colour, place of origin, ethnic origin or age. In the CAD, the Tribunal advised the parties that there were three issues they had to respond to:

1. Has the Tribunal already decided the harassment allegation, namely that the applicant was set up, disciplined and scheduled to do less desirable duties or jobs, in the Case Resolution Conference Decision dated December 7, 2010?

2. Has the applicant established a link between his race, colour, place of origin or age and the decision not to short-list him in the four job competitions?

3. Has the applicant established a link between his race, colour, place of origin or age and the decision to terminate his employment?

analysis

Harassment Complaint

15In this Application, the applicant alleges that the individual respondent, Lisa Kivlichan, harassed, discriminated and reprised against him by setting him up, disciplining him and scheduling him to do meagre or less desirable duties or jobs. There are no claims of harassment against the other individual respondents. The issue before the Tribunal is whether this harassment allegation was dealt with in the CRC decision.

16The CRC decision was released on December 7, 2010. The Tribunal accepted the applicant's admission that there were certain core duties of his job that he considered menial and that he refused to do. It found the applicant was given warning letters and suspended for his refusal to perform these duties. The Tribunal dismissed the applicant's complaint that requiring him to perform these job duties was discriminatory or disciplining him for this failure was a form of reprisal. It held the TDSB acted appropriately in disciplining the applicant for his insubordination and that he was not treated differently from other employees.

17The complaint in this Application is the same complaint in the CRC hearing: whether the applicant was assigned menial jobs and was disciplined when he refused to do them. The applicant alleged in the CRC hearing that his discipline was a form of reprisal. In this hearing, he alleged it was a form of harassment. In either case, the allegations of discrimination are the same and they were dismissed in the CRC decision. During the hearing of this Application, the applicant acknowledged that he raised the harassment allegations against Kivlichan during the CRC hearing.

18The harassment allegation cannot be re-litigated in this proceeding because it was dealt with by the Tribunal in the CRC hearing. That said, the applicant's refusal to perform core job duties is relevant to the termination of his employment. This is discussed later on in this decision.

19In his written submissions, the applicant refers to other allegations of harassment that are not set out in the Application. The applicant did not testify about these incidents during the hearing and as such, they will not be considered in this decision.

20In light of this ruling, the issues before the Tribunal on this Application are limited to the four job competitions and the termination of the applicant's employment.

Four Job Competitions

21The applicant alleges that the respondents were biased and unfair when they scored his qualifications in such a way so as to eliminate him from the following job competitions:

• School Support Manager

• Senior Financial Analyst

• Assistant Comptroller, Financial Reporting and Planning

• Assistant Comptroller, Finance

22In reviewing the four job postings, it is clear that the central issue in this case is whether the applicant met the educational/work requirements for these positions. The applicant does not have a university degree or a professional accounting designation, job requirements for these positions.

23The applicant asserts that the TDSB failed to properly consider his accounting experience in Guyana as equivalent experience. The applicant was a chief accountant for Guyana Fisheries Limited from January 1989 to December 1990 and a corporate accountant for Guyana Rice Milling and Marketing Authority from March 1986 to December 1988. The applicant did not call any evidence at the hearing about this work experience. As such, there is no evidentiary basis to compare the applicant's work experience in Guyana with the job requirements in these positions.

24In his submissions, the applicant asserts that there were other employees at the TDSB who were promoted to Assistant and Associate Comptroller positions who did not have their accounting designations. The applicant did not call evidence to establish this fact and as such, it cannot be considered in this decision.

25The applicant also refers in his submissions to the duties he performed while employed by the TDSB and how this experience was under-valued. The applicant did not call this evidence at the hearing and it cannot be considered in this decision.

School Support Manager

26The job posting for the position of School Support Manager required a university degree in business administration or commerce with five years' progressively responsible experience in budget development and monitoring, or an equivalent of education and experience. The applicant does not have a degree in business administration or commerce and failed to call any evidence as to how his education and work experience was equivalent to the job requirement for this position. In the absence of such evidence, I am unable to conclude that the scoring of his qualifications was influenced by his age or race.

Senior Financial Analyst

27The senior financial analyst position required a post-secondary degree in commerce and finance or business administration and a professional accounting designation (CA, CGA, CMA) with four years of progressively responsible related experience, or an equivalent combination of education and experience. The applicant does not have either of these qualifications. The applicant did not call any evidence as to how his education and work experience was equivalent to the educational job requirements for this position. In the absence of such evidence, I am unable to conclude that the scoring of his qualifications was influenced by his age or race.

Assistant Comptroller – Financial Reporting and Planning

28The Assistant Comptroller, Financial Reporting and Planning also required a post-secondary degree in commerce or business administration or related discipline and a professional accounting designation with eight years progressively responsible experience in school board finance or an equivalent combination of education and experience. The applicant did not meet the educational requirement for this position and he did not call any evidence as to how his education and work experience was equivalent to the job requirement for this position. In the absence of such evidence, I am unable to conclude that the scoring of his qualifications was influenced by his age or race.

Assistant Comptroller, Finance

29The Assistant Comptroller, Finance also required a post-secondary degree in commerce and finance or business administration or related discipline and a professional accounting designation with eight years progressively responsible experience in the management of finance and information technology or an equivalent combination of education and experience. This position was not filled and it appears there was no scoring of the candidates' qualifications. In the absence of any scoring, the applicant's complaint fails. In any event, the applicant did not meet the educational requirement for this position and he failed to establish that his education and work experience was equivalent to the job requirement for this position.

Burden of Proof

30The applicant testified that he was not at the Tribunal to prove his age or race were factors in the decisions not to short-list him for these four positions. He stated he was at the Tribunal because of the impact of these decisions on his life.

31The applicant bears the legal burden of proving his race or age influenced the scoring of his qualifications for these positions. The applicant states that he was eliminated from the job competitions because of negative attitudes, stereotypes, prejudice and bias because his equivalent combination of education and experience sounded foreign or not Canadian. There is no evidence to support this bald assertion. The applicant has failed to establish that he was qualified for these positions and that his qualifications were scored differently because of his race and age.

Termination of the Applicant's Employment

32The applicant's employment was terminated on February 23, 2010. The applicant was terminated by the TDSB "for cause" because of his refusal to perform certain job duties. In particular, the applicant refused to deliver and deposit cheque receipts to the bank. The TDSB asserts that one of the duties of the Cash Receipts Analyst is to go to the bank. The applicant refused to do so.

33The TDSB applied a progressive discipline approach to the applicant's refusal to perform his job duties. The applicant had two informal meetings on April 1 and May 16, 2008 about this issue. The applicant received a written reprimand on January 28, 2009 and a one-day suspension on March 31, 2009. The applicant received a three-day suspension on September 28, 2009 and a five-day suspension on November 5, 2009. All of the discipline resulted from the applicant's refusal to follow the directions of his supervisors to perform his job duties.

34There is no evidence that the applicant's race or age played a role in the decision to terminate his employment. The applicant was progressively disciplined for his insubordination. His discipline escalated from informal meetings to written warnings to lengthier suspensions. There is no evidence that the disciplinary approach used with the applicant differed from the approach taken with other employees.

35The applicant has failed to establish on a balance of probabilities that his race or age were factors in the decisions not to short-list him in the four job competitions and the decision to terminate his employment.

36The Application is dismissed.