Zholudev v. EMC Corporation of Canada, 2013 HRTO 178

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sergey Zholudev Applicant

-and-

EMC Corporation of Canada Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin Date: January 31, 2013 Citation: 2013 HRTO 178 Indexed as: Zholudev v. EMC Corporation of Canada

WRITTEN SUBMISSIONS

Sergey Zholudev, Applicant | Self-represented

1On March 26, 2012, the Tribunal issued a final Decision in this Application, 2012 HRTO 626, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision in respect of three of the seven allegations that were at issue in the summary hearing. This is the Tribunal’s decision on the reconsideration request.

Background

2The Application has a somewhat lengthy history.

3The original Application was filed on March 15, 2009 under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, as amended (the “Code”) alleging discrimination on the basis of age. The Application alleged that the applicant was discriminated against in ten “events” when he was not promoted to a job or assigned to an employment opportunity while employed with the respondent. A Response denied all the allegations.

4The parties exchanged and filed disclosure. The material filed consisted of a large number of documents and witness statements for the applicant and all of the proposed witnesses for the respondent.

5Initially, the Application proceeded to a hearing for the purpose of determining a Request for Order During Proceedings brought by the respondent that certain portions of the Application should be dismissed on the basis of delay and/or because the allegations related to competitions in California. At the hearing, the applicant confirmed that he was not seeking a remedy in respect of two events (identified as events 8 and 9). On July 27, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1411, and a Case Assessment Direction. In the Interim Decision I found that, with the exception of one of the allegations referenced as event 6 in the Application, the respondent’s Request was denied. In the Case Assessment Direction, the Tribunal separately directed that a summary hearing be held to determine whether the remaining allegations in the Application (Events 1 to 5, 7 and 10) should be dismissed on the basis that there is no reasonable prospect that they will succeed.

6A summary hearing was held. The parties filed extensive written submissions prior to the summary hearing as well as making further oral submissions during the summary hearing.

7The Tribunal dismissed the Application on the basis that there was no reasonable prospect that the applicant could establish that he was discriminated against in respect of the seven allegations remaining in the Application.

The Tribunal's Approach to Reconsideration

8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

9The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended March 2010). Rule 26 states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

10The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

11As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

The Request for Reconsideration

12The applicant seeks reconsideration of the Decision in respect of three of the seven events (i.e. allegations). In his Request form, the applicant relies on section 26.5 (d); namely that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. The applicant particularizes that his claim is based on “natural justice grounds”. The applicant expresses the view that because of the large number of documents exchanged, he believes that some important evidence might have been incidentally overlooked and thus he is “bringing them” to the Tribunal’s attention.

13Given that the applicant makes distinct submissions in support of each of the three events complained about in his Request, I will address the applicant’s Request separately in respect of the three events in question.

Third Event

14The third event pertains to a product management position for content transformation services.

15The applicant had alleged that in July 2006, he expressed an interest in future openings to a group product manager and the manager indicated that he would consider the applicant. Notwithstanding his expression of interest, the applicant stated that in August 2006, another employee (11 years younger than him) was assigned to a vacant position (product manager, content transformation services) without a posting. The applicant alleged that the employee selected had less education than him, similar product knowledge and public speaking ability and a poorer performance review, which led the applicant to conclude that “age” was the “decisive factor”.

16In the Decision, I found that I was not satisfied the applicant had equivalent or better qualifications than the successful employee and that the proposed evidence did not support the conclusion that there is a reasonable prospect that the applicant could establish that his age was a factor. In the course of my reasons, I stated that the applicant had not explained how he would challenge the respondent’s proposed evidence that the employee selected had worked on actual programming of the product which is superior to the installation work performed by the applicant or how he would challenge the respondent’s proposed evidence about the successful employee’s customer relations skills. I noted that the successful employee actually had the same general rating as the applicant in his last performance review and that the criticism noted, the employee’s motivation, was consistent with the respondent’s rationale for assigning him to the position (to motivate the employee who was bored in his current role).

17In his Request, the applicant repeats some of his arguments previously made (for example, his disagreement that this was an internal developmental assignment and not a vacancy). The Tribunal has held that reconsideration is not an opportunity to reargue a case. In any event, in the Decision, notwithstanding the respondent’s contention that this was an internal reassignment, I went on to review the substance of what occurred and assess whether there was a reasonable prospect that the applicant could establish that his age was a factor in the respondent’s conduct including considering the respondent’s explanation for selecting the other employee (see paras. 37-40).

18In the Request, the applicant also takes issue with some of the Tribunal’s conclusions about the parties’ submissions in the summary hearing regarding the respective experience of the successful employee and the applicant in product knowledge of content transformation services and customer relations skills. In challenging the Decision, the applicant relies on different facts and/or makes new submissions not previously highlighted by him in the summary hearing.

19For example, the applicant now states that he disagrees with the respondent’s statement about the successful employee having worked on programming in content transformation services, which was referenced in the Decision (See para. 16 above). The applicant now states that he could call a former colleague who worked on content transformation services from 2000 to 2006 who would testify that he is “unaware” of the successful employee ever working on these services. The applicant also states in commenting on his own experience, that he has done programming, integrating content transformation services with digital asset manager in 2005 for which he was rewarded with EMC stock and monetary compensation.

20These are new arguments which for the most part are based on facts not previously referred to by the applicant in the summary hearing in respect of event 3 notwithstanding that the respondent directly raised the issue of the comparative experience of the employee and the applicant in its submissions. The applicant had a full opportunity to respond in writing and at the oral hearing. Notably, in responding to the issue of product knowledge in his summary hearing submissions, the applicant referenced his work in 2004 (which in the Request he refers to as installation work). The applicant did not previously mention programming work performed by him in 2005 in the summary hearing nor has he provided an explanation as to why he was unable to do so until now. I note that he did previously refer to being rewarded with EMC stock and monetary compensation in 2005 but it was described as being for his “personal contribution to DAM” and was relied on in connection with Event 7.

21As noted in the Tribunal’s Practice Direction, reconsideration is not an appeal or an opportunity to repair deficiencies in the presentation of a party’s case. I do not find that the applicant has provided any basis on which to reconsider this aspect of the Decision.

22In the Request, the applicant also argues that he disagrees with the respondent’s assertion that the successful employee’s customer service skills was superior to his skills; an assertion which also figured to some degree in my Decision (see paragraph 16 above). The applicant now argues that the respondent should have to support its “allegation” about the successful employee having superior customer service skills (which I presume means with evidence) and points to several examples of his own customer relations experience, including two examples previously mentioned and some additional examples. I note that all of the examples, including the two previously referenced, post-date the applicable date of the reassignment.

23Again, I view the applicant’s submissions in this regard as tantamount to re-arguing his case. The applicant had an opportunity to respond to the respondent’s explanation as to why the position was given to the employee in question during the summary hearing. The applicant did not explain how he would challenge the respondent’s proposed evidence that the successful employee’s customer service skills were superior nor did he raise at the time any concerns about his inability to do so. I do not find that the applicant has provided any basis on which to reconsider the Decision.

24I note that the issue at the summary hearing was whether there is no reasonable prospect that the applicant could establish a link between the ground of age and each of the events in question. As set out in the Case Assessment Direction directing the summary hearing, no evidence or witnesses are to be called. Instead, the Tribunal considers the submissions made including whether the applicant is challenging or may be able to challenge with evidence the proposed evidence of the respondent. The applicant had a full opportunity to explain how he could establish a link including by responding to any position advanced by the respondent and outlining any concerns or challenges in this regard. Based on the submissions made at the summary hearing, I was satisfied that there was no reasonable prospect of the applicant establishing a link. To the extent the applicant has made new submissions which may suggest that he now takes issue with the respondent’s explanation, he has not provided any reason as to why he did not highlight these submissions earlier. In these circumstances, I do not find that there has been a denial of natural justice nor any other compelling reason advanced to justify reconsideration.

Fifth Event

25The applicant also seeks reconsideration of the Decision in respect of the fifth event. In this event, the applicant complained about a job competition for another product manager job. The applicant stated that he applied for the position but was told that the respondent was looking for a candidate with web publishing experience. While initially the applicant was complaining about the selection of the successful candidate, during the summary hearing, the applicant reformulated his claim. The applicant conceded that the successful candidate was superior but alleged that he was still treated adversely because publishing experience was a prerequisite for him but not another candidate who was 17 years younger than him and was interviewed and considered albeit not selected.

26At paragraph 50 in the Decision, I stated that I had difficulty seeing how the applicant has a reasonable prospect of establishing that he was adversely treated on the basis of age in this process. Even if the applicant was treated differently from another applicant, it did not result in any disadvantage as he was not claiming that he should have been awarded the position.

27In the Request, the applicant seeks reconsideration of my conclusion in this regard based on his claim that he was “treated differently than other candidates who applied for this position” (although it is clear that his contention is in respect of the single candidate referenced above). The applicant states that the respondent must provide a reasonable explanation of why he was treated differently than this younger candidate who also had no web publishing experience. The applicant states that he had “the same or even superior to” this candidate’s qualification for the position and thus should have been interviewed and considered.

28I do not find there is any basis for granting reconsideration of this aspect of the Decision.

29The issue in a summary hearing is whether there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. The applicant bears the onus of establishing a prima facie case of discrimination. A prima facie case of discrimination is established when an applicant can show a distinction based on a prohibited ground that creates a disadvantage. See: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 90.

30In this case, the applicant’s complaint was limited to the respondent’s decision not to consider him for the position. The applicant did not take issue with the candidate who was selected. In these circumstances, even if the applicant was treated differently, I was not satisfied that he had a reasonable prospect of establishing that he had been disadvantaged given that he was not alleging that he should have been given the position and thus lost out on the position, or otherwise experienced some other disadvantage as a result of not being considered.

31However, in any event, I am not convinced that there is a reasonable prospect that the applicant can establish a link between his age and his failure to be considered for the position. The applicant’s Request is based on the allegation that one other candidate, who was younger than the applicant and similarly without experience in web publishing, was considered. The applicant did not challenge that the respondent ultimately selected a candidate with web publishing. Even assuming that the other candidate had no obvious web publishing experience, I am not convinced that the consideration of a single candidate without this experience who is younger is a sufficient basis on which to reasonably infer that age must have been a factor in not considering the applicant.

32I note that in his Request, the applicant now makes the assertion that he had the “same or even superior” qualification for the position than the unsuccessful younger candidate. This seems inconsistent with the applicant’s earlier written submissions that the candidate had the same product knowledge as he did (i.e. none) and that he is unaware of other aspects of the candidate’s experience (public speaking ability and performance review “unknown”). In any event I do not find a bald assertion alleging something different from what was previously argued to be sufficient to justify reconsideration of the Decision in respect of Event 5.

Seventh Event

33The applicant also seeks reconsideration of the Tribunal’s Decision regarding the job competition for principal product manager, media and entertainment.

34In respect of this event, the applicant had alleged that he applied for the position and was told by the hiring manager that they already had a candidate. The applicant alleged that he was better qualified based on his direct developmental experience with digital asset management (DAM), the product in question although he conceded his knowledge of the successful candidate’s “product knowledge” was unknown.

35In the Decision, I stated that apart from the age difference, the applicant’s allegation as to how he compared with the successful candidate was speculative at best and that I did not find that speculation equated to a reasonable prospect that the applicant could establish that the explanation provided (the candidate’s experience with large media files and extremely good people skills) was a pretext for the reason the candidate was chosen. I found that there was no reasonable prospect that the applicant would be able to establish a claim of age discrimination since apart from the age difference, he had not pointed to any evidence that would suggest that his age was a factor in the respondent’s decision-making nor any evidence which he could reasonably challenge the respondent’s position that the successful candidate was selected on the basis of superior experience (see paras. 55 and 57).

36The applicant appears to base his Request for reconsideration on two arguments. First the applicant states that the respondent should be required to support each of its assertions (which I presume means calling evidence and having it subjected to cross-examination). The applicant specifically challenges the Tribunal’s Decision to the extent I relied on the respondent’s submissions that the candidate had experience with large media files. Second, the applicant states that there are outstanding Requests for Orders During Proceedings filed by him and in most of them he has asked for the performance reviews of two employees, one of which is the candidate selected in event 7. The applicant suggests this is why he could not specifically respond to the submissions about the candidate’s experience with media files and that the candidate’s product knowledge, public speaking ability and performance review were unknown to him. The applicant maintains that he has “the same or superior to [the successful candidate’s] qualification for a position”.

37While I have carefully considered the applicant’s submissions, the applicant has not established any of the criteria justifying reconsideration.

38In the context of the summary hearing, neither party was required to prove what was being asserted through formal evidence. As set out in the Case Assessment Direction directing the summary hearing, the Tribunal stated that it appeared the applicant may be unable to establish a link between the respondent’s alleged actions and age. The purpose of the summary hearing was for the applicant to provide submissions as to why the Application be dismissed as having no reasonable prospect of success. Given the stage of the hearing, in the Decision, I considered all of the submissions including the respondent’s position (and potential evidence it would call) and the applicant’s response to it. In respect of event 7, the respondent stated that it was particularly interested in a client’s experience with DAM as it pertained to large media files (which it determined the successful candidate had) and that it chose the successful candidate because of this experience and his extremely good people skills. The applicant had a full opportunity to respond to this submission during the summary hearing. As indicated in the Decision, the applicant did not specifically respond to the submissions about the experience with media files or comment on the opinion on the candidate’s people skills. In fact, during the oral part of the hearing, the applicant elected to make no further submissions on this event other than what he already made in writing. As also reflected in the Decision, it was apparent that the applicant’s allegation was speculative at best.

39In these circumstances, I do not find that there has been a breach of natural justice or any other ground identified that would justify reconsideration.

40Before concluding on this point, I note that the applicant now appears to accept that the candidate had experience supporting the design, demonstration and marketing of video and audio digital asset management although he argues that there is no support for the assertion that the files were “large files”. In comparison, the applicant now asserts he has experience with “large media files” from his involvement in “Documentum DAM hands-on development”.

41I not persuaded that these submissions justify reconsideration of the Decision. The respondent specifically highlighted the importance of experience with large media files. The applicant has not explained why he did not directly address this in the summary hearing. As previously mentioned, reconsideration is not an opportunity to reargue a case or repair deficiencies in it.

42Further, I am also not persuaded that it is appropriate to reconsider the Decision to address the disclosure requests (in which the applicant states he asks for the candidate’s performance reviews). A summary hearing can proceed at any stage of the hearing process, and in fact, most typically proceeds even before a response is filed. In this case, the summary hearing proceeded after the exchange of disclosure. While it may be that the candidate’s performance review would provide the applicant with additional information, the purpose of disclosure is to not to explore whether an applicant has a case or not, which appears to be the underlying rationale for the request.

43In summary, the applicant had a full opportunity to present his submissions in the summary hearing including outlining what evidence he would rely on to establish a link and his response to the evidence and submissions on the respondent. I find that the submissions in this Request amount to reiterating arguments already made and/or new submissions based on additional facts and/or submissions that the applicant could have made during the summary hearing. I do not find that there has been a breach of natural justice nor do I find that the applicant has established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.