Fay Marc-Ali v. Kelly Graham, 2013 HRTO 266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fay Marc-Ali

Applicant

-and-

Kelly Graham

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

DECISION

Adjudicator: Leslie Reaume

Date: February 14, 2013

Citation: 2013 HRTO 266

Indexed as: Marc-Ali v. Graham

APPEARANCES

Fay Marc-Ali, Applicant

Roger Rowe, Counsel

Kelly Graham, Respondent

Steve Lavender, Counsel

Amalgamated Transit Union, Local 113, Intervenor

Ian J. Fellows, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour and sex. The applicant and the respondent are both employees of the TTC. The applicant is a driver and the respondent is a supervisor. The Application was filed against the respondent Graham alone.

2The Application was deferred pending the outcome of a duty of fair representation application filed by the applicant against her union with the Ontario Labour Relations Board (“OLRB”). The decision of the OLRB dismissing the application was released on March 9, 2011. This Application was reactivated by Interim Decision 2012 HRTO 502 on March 9, 2012.

3By Case Assessment Direction (“CAD”) dated September 11, 2012, the Tribunal scheduled this matter for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The respondent is also seeking dismissal of this Application pursuant to section 45.1 of the Code on the basis that the parties have settled the issues arising from the allegations against the respondent in a grievance filed under the applicant’s collective agreement. I deal with both issues in this Decision.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation and it is important that this be determined at the earliest opportunity, where appropriate. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

6The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

7The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

8Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

9The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

10Support for that connection may come in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

11The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

12The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

13The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

Section 45.1

14Section 45.1 provides the Tribunal with the discretion to dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. See also: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”).

15In this case the respondent alleges that the substance of the application was dealt with through a settlement in the grievance process. The agreement is set out in a letter rather than a signed agreement. The respondent alleges that the applicant agreed to the settlement, which the applicant denies. The OLRB held that the applicant did agree to the settlement and that she had raised her allegation of discrimination at Stage 3 of the grievance process but failed to produce any evidence to substantiate her claim.

16The respondent alleges that the settlement of the grievance combined with the findings of the OLRB satisfy the requirements of section 45.1. The applicant alleges that the findings of the OLRB are incorrect and do not deal with the substance of her application.

17Having set out the basic framework for determining whether an application should be dismissed on the basis of section 45.1 of the Code or for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

18The applicant and the respondent both work for the Toronto Transit Commission (“TTC”). The parties, all of whom were represented by counsel, filed written material and made oral submissions in relation to the issues identified in the CAD.

19The applicant is a subway operator who has been employed by the TTC since 2006. The respondent is a route supervisor for the same employer. The Application was filed against the respondent, Ms. Graham, alone. The applicant also seeks to add a number of respondents to this Application. Given my findings, it is not necessary for me to deal with her Request.

20There are two elements to the applicant’s claim against the respondent. First she alleges that on February 21, 2009, before leaving Finch station while she was between runs, she went to get a drink and then went to the bathroom. The applicant alleges that on her way back from the bathroom, the respondent commented that she had time to get a coffee or use the bathroom but did not have time for both. The applicant disputes that she caused a delay of any kind and alleges that she was embarrassed because the respondent made this comment in front of a member of the public.

21The second part of the applicant’s claim involves allegations that she was improperly disciplined for “standing up” to what she described as her supervisor’s harassment of her over the coffee/washroom comment. The applicant described the conversation which gave rise to the discipline in the following terms:

I went to the tower to speak with Kelly. Even though, she showed me no respect when confronting me in front of this stranger in the tower. I gave her respect by pulling her outside the tower room, into the tower hallway to speak with her because another unknown gentleman was in the tower. I told Kelly I did not appreciate her comment or reprimand in front of this stranger and that I have never disrespected her and if she approaches me like that again I will not only go to my superintendent, union or her boss, I would deal with this issue outside of the TTC and she would have to answer to her boss.

22The applicant alleges that later the same day, the respondent approached her indicating that she wished to speak with her. The applicant admits that she deliberately ignored the respondent and went into the operating cab of the train. The applicant alleges that the respondent advised her that she would be written up for insubordination and for having threatened her in the earlier conversation.

23There is no dispute that the applicant was relieved of her duties as an operator on February 23, 2009, because of her conduct toward the respondent.

24There was a grievance filed on behalf of the applicant pursuant to the collective agreement. The applicant attended a Step 2 grievance appeal against the discipline that had been imposed. She refused to accept the terms of a settlement; however, her reinstatement as an operator was imposed and the applicant was returned to work. The applicant proceeded to Step 3, where again, she did not accept the terms of a proposed resolution. The applicant agreed to mediation where a settlement was reached on June 18, 2009. In addition to being reinstated, the applicant was compensated for four of seven days of lost wages. The applicant continues to maintain that she did nothing wrong and that the discipline was unwarranted.

25The applicant also disputes that she accepted the settlement. She filed a duty of fair representation complaint against her union which was dealt with by way of a decision of the OLRB dated March 9, 2011. In the decision the OLRB found that the applicant had accepted the settlement. The OLRB also found that at Stage 3, the applicant raised, for the first time, the question whether her treatment was linked to her gender or race.

26The applicant attributes the washroom/drink comment made by the respondent, and the disciplinary action which followed, to discrimination on the basis of the applicant’s status as a junior, Black, female employee. In her written material the applicant describes her reaction to the comment as follows: “I felt her comment to me was uncalled for as if she wanted to intimidate me or exert her superiority complex as a supervisor. Her comment was harassing.” The applicant alleges that she works in a male-dominated work environment and her perception of the respondent is that “as a female maybe she feels she must display a harder attitude towards females she works with so to not be perceived as favouring female workers”.

27When she was asked what evidence would be reasonably available to her to support her perceptions, the applicant stated that there are ongoing tensions in the workplace about the issue of bathroom breaks and the accessibility of facilities for workers. The applicant alleges that these tensions sometimes result in disagreements between workers and their supervisors and other employees are not disciplined as she was. The applicant indicated that she would be calling a number of witnesses who share her perception that her status as a junior, Black, female employee made her more susceptible to being bullied and harassed and subjected to inconsistent disciplinary measures. The applicant alleges that she was stereotyped as an aggressive black woman when she stood up for herself against her supervisor and that others with more seniority, particularly men, are able to push back without consequences.

28The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

29The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions.

30In this case, the applicant suspects her treatment is related to her personal characteristics and a hostile work environment. She intends to call witnesses who share her perception. If I were to accept the facts as they are alleged by the applicant, there is one comment by the respondent about the applicant’s attempt to obtain a drink and use the washroom on a short break. The comment took place in front of a member of the public and I have no reason to conclude that it was unreasonable for the applicant to feel embarrassed. However, the applicant herself then initiated a confrontation with her supervisor. She also admitted that she ignored her supervisor’s effort to speak with her later in the day.

31Even if I accept the applicant’s allegation that a hostile work environment exists toward junior employees and particularly junior, Black, female employees, she must have evidence to support her allegation that her experience arises from that context. The applicant describes the comment by the respondent as harassment but that one incident is not sufficient to constitute harassment under Code. In the absence of a pattern of mistreatment which is often how harassment manifests in a workplace, the applicant must demonstrate that the one comment is sufficiently serious enough to constitute harassment. A single comment may nevertheless be found to be discriminatory, but the applicant must have some evidence, beyond her own perception, that her race and gender were factors in the respondent’s conduct.

32In other words, even if the applicant can prove that a discriminatory environment exists, she would need more than the one experience she has described to demonstrate that she is the victim of that environment.

33I would therefore dismiss the allegation that the respondent engaged in discrimination in her interactions with the applicant as having no reasonable prospect of success.

34The second allegation overlaps somewhat with the first. The applicant alleges that the discipline which resulted from her conduct toward the respondent was also discriminatory. I note that the respondent Graham is only responsible for having triggered the discipline. However, given that the applicant is seeking to add other respondents who appear to have been involved in the disciplinary process, I have chosen to deal with the totality of her allegations about the discipline process. The applicant alleges in part that the respondent and others stereotyped her as an “angry Black woman” in disciplining her.

35I would dismiss the balance of the applicant’s allegations on the basis of section 45.1. A grievance was filed on behalf of the applicant when she was relieved of duty. The grievance was settled at mediation. While the applicant denied that she agreed to the settlement, the OLRB found otherwise. The OLRB also found that the applicant raised her perception that her experiences might be linked to her gender and race at Stage 3 of the grievance process. The OLRB also found that the applicant was unable to provide any information to the union or the TTC to substantiate her perception of discrimination.

36The applicant argued that the decision of the OLRB deals only with her claims against the union. In many cases that would true, but in this case, the findings of the OLRB, that the applicant raised the issue of discrimination in the grievance process and that she accepted the settlement, are sufficient to establish that the substance of her allegations before the Tribunal were appropriately dealt with in the context of the grievance procedure.

37The applicant is seeking to pursue before this Tribunal the issues which were the subject of her grievance and the OLRB decision. To permit her to proceed would constitute a re-litigation of the issues that were raised and addressed in those proceedings. The applicant believes that the decision of the OLRB is not correct however, the decision of the Supreme Court in Figliola makes it clear that this Tribunal does not act as an appeal of that decision. In all of the circumstances, I find that this part of the Application is dismissed under section 45.1.

38Accordingly, the entire Application is dismissed.