Peggy Harrypersad v. Peel District School Board, 2013 HRTO 985

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peggy Harrypersad

Applicant

-and-

Peel District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 1628

Intervenor

DECISION

Adjudicator: David Muir

Date: June 3, 2013

Citation: 2013 HRTO 985

Index as: Harrypersad v. Peel District School Board

APPEARANCES/WRITTEN SUBMISSIONS

Peggy Harrypersad, Applicant

D. Paul and Lata J. Menon, Counsel

Peel District School Board, Respondent

Roy C. Filion, Counsel

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 ancestry, colour, creed, ethnic origin, place of origin and race.

2The hearing of this case began on February 12 and 13, 2013. At the outset of the hearing the parties engaged in settlement discussions but were not successful in resolving their dispute.

3I heard the evidence of the applicant and two witnesses called in support of her case. The applicant closed her case.

4I then heard the evidence of Mr. Hill who participated as a member of the hiring panel in both job competitions at issue in this case. Mr. Hill had also acted as the applicant’s supervisor, and in this capacity was one of the applicant’s referees. I also heard the evidence of one of the other referees that the applicant relied on in one of the two competitions in issue.

5At the conclusion of the second day of evidence I indicated to the parties that I wanted to hear their submissions at this stage, about whether or not this Application should be dismissed because it had no reasonable prospect of success.

6As I indicated to the parties at the hearing although it is not routine for the Tribunal to interrupt proceedings the Tribunal has the authority to do so and has exercised that authority in the appropriate cases. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. At that stage, having heard the bulk of the evidence including the entire case of the applicant and the evidence of the key witness for the respondent as well as one of three references who recommended that the applicant not be hired for the position, I was satisfied that there was a substantial question of whether or not this Application could succeed. In my view the most fair, just and expeditious manner of proceeding with the case was to invite the parties’ submissions on this point.

7I issued a Case Assessment Direction on February 15, 2013 to provide further guidance to the parties:

For the parties’ assistance the question to be addressed at this stage is whether there is evidence which I have heard or which reasonably might be heard from the remaining identified witnesses that is sufficient to establish on a balance of probabilities that the applicant experienced discrimination in either or both of these job competitions. To be successful the applicant must point to evidence that I have heard or which might be forthcoming from the identified witnesses of the respondent from which an inference might be drawn that discriminatory factors were at play in the decision making of the respondent in these job competitions. See Dabic v. Windsor Police Service, 2010 HRTO 1994.

Evidence and Analysis

8The parties agreed to deal with this issue in writing and written submissions were received from both parties.

9The applicant has no direct evidence of discrimination and offered none in her evidence in chief. Her two supporting witnesses testified that she was a good person, competent in her work and an important part of the school. The respondents did not take significant issue with this evidence.

10The applicant was not asked by her representative why she believed that racial bias played a role in the decisions that were made in these competitions. She was asked a number of questions of what appear to have been technical deficiencies in the procedures adopted. These technical deficiencies were by and large not disputed by the respondents and in another type of proceeding such as a grievance arbitration might have been of significant consequences for the parties. However the question for me is not whether there were technical irregularities in the competition process, but whether at the end of the day the evidence including evidence of technical deficiencies in the competitions establish or tend to establish inappropriate bias in the process.

11In the absence of any questioning from her representative about the basis for her belief that Code prohibited grounds were a factor I did ask the applicant why she believed that racial bias was at play in the competition and her response was that she saw people being interviewed who she did not think had the experience. In cross-examination when asked what the applicant expected Mr. Hill to do when both of her other references said not to hire her in the second competition, she suggested that perhaps Mr. Hill and her other referees were unhappy with her because she had already filed a grievance about the prior competition. This may or may not have been the case but it is not evidence of racial bias in their decision making.

12The applicant relied on a number of indicators which in her view would tend to establish that racial bias played a role in the decision not to hire the applicant for the position in question.

13The applicant relied on the fact that a requirement of the position was experience with two management systems the respondent Board uses in its work, PAM and PAM Webcentre. The applicant claims to have had some experience with these systems and had taken some training in their use prior to the second job competition. She argued that the successful candidate had no experience with these systems. The applicant’s evidence does not support her contention that she met the technical qualifications for the position. The evidence of the applicant was that she had assisted with some tasks associated with these systems primarily related to ensuring coverage of teacher absences with supply teachers. The impression of Mr. Hill was that the applicant had assisted with the clerical aspects of this task. The applicant did not substantially challenge that evidence. She also had taken some training in the use of these systems.

14However the evidence of the respondents was also that these systems were merely some of the software tools related to what was really the technological heart of the school administration which involved the use of software other than PAM and PAM Webcentre. These systems were in addition to dealing with teacher and staff absences, also where the scheduling function, timetabling and record keeping for students was housed and accessed/updated on an ongoing basis. The respondents concede that the incumbent had little if any exposure to these systems. But there is no evidence that the applicant had any exposure at all to the substance of this position.

15Even if the applicant’s evidence was sufficient to establish a prima facie case that required an answer from the respondents, in my view the evidence of the respondents was more than sufficient to answer the applicant’s general allegation. The successful candidate appeared to have had some minimal exposure to some of the systems in question – the respondents do not claim that she had more than that – but much more importantly for the respondents the incumbent had worked for several years in a technology environment for a large company and exhibited to them an understanding of how these systems worked and could de-construct them. As well, none of the successful candidate’s referees advised that she not be hired. On the contrary her references were excellent while the applicant’s referees recommended that she not be hired.

16In her submissions the applicant argued that the evidence was that Mr. Hill, one of two who interviewed the candidates, did not record his scoring of the applicant’s responses to the interview questions. The applicant argued that Mr. Hill could offer no explanation for the lack of scores associated with her answers. This is not entirely accurate. Mr. Hill was at first puzzled by the lack of scores of the applicant’s responses to the interview questions and initially could not offer an explanation. However he also testified that when he first became aware of the lack of recorded scores he thought he must have recorded the applicant’s scores on a separate sheet of paper but could not find anything in the file. He then testified that it was possible that he did not formally record any scores because in his mind it was so clear who was the superior candidate that it was not necessary to do so. In assessing the reasonableness of this explanation I have taken into account that Mr. Hill would have had direct knowledge of the applicant as her supervisor in her existing position. Indeed, because of this role he was one of her referees. Mr. Hill also testified that he and Ms. Fox spoke about the interviews very shortly after they were conducted, likely the same day, and he and Ms. Fox were agreed that the successful incumbent was clearly superior.

17The applicant argued that the failure to record scores for the applicant was not a mere procedural oversight as suggested by the respondent but establishes that the competition must have been “biased and unfair and prejudiced against the applicant”. I do not agree. As noted earlier while a procedural defect in the competition might support the applicant’s contention, it does not necessarily follow that it must be inferred that the process was biased from the outset. This is not a grievance arbitration; the question I must decide is whether, considering the evidence as a whole, the applicant has met her burden of establishing discrimination on a balance of probabilities, including whether there is any evidence from which an inference might be drawn to support that burden. Assuming again that this fact would tend to support the applicant’s contention, and I agree that it might, I am satisfied based on the totality of the evidence including the evidence of the respondents that it is not an indication of a racially tainted competition process. Important in this assessment is the direct and uncontradicted evidence that the applicant’s references did not recommend hiring her for the position.

18The applicant also relied on the fact that in his reference for the applicant Mr. Hill included reference to a couple of breaches of security protocol, but when asked about them could not provide any detail. Again this is not entirely accurate; although it is fair to say that Mr. Hill did not provide a great deal of detail, he was clear that there was at least one such incident and that he raised it at a team meeting with office staff. He was challenged repeatedly by counsel for the applicant but continued to maintain that there had been issues and while they might have been the subject of discipline he felt that a team and capacity building approach was appropriate in the circumstances. I accept Mr. Hill’s evidence on this point.

19In her submissions the applicant relied on the fact that Mr. Hill testified that the successful incumbent has performed the job more than adequately although she has since left the position. The applicant takes issue with his evidence that the incumbent had prepared detailed documentation of the job. The applicant attempted to challenge this assertion by claiming that there had been such a document in existence for years. I have reviewed the documents in question and there is no question that the new materials apparently created by the incumbent are superior to those which the applicant asserts was in use prior to her arrival. The applicant argued that much of the document produced in the course of the cross-examination of Mr. Hill – the entire document was not produced – was cut and paste from other documentation. This may or may not be the case but even if only so in its presentation, the new documentation of the job function is clearly superior to that which had been in existence prior to the incumbent’s arrival. In any event the fact that the respondent Hill responds in cross-examination that the incumbent has performed more than adequately in the position is not evidence of bias on his part or evidence of a pattern of subtle discrimination as suggested by the applicant.

20The applicant relied on the fact that the respondent Hill and one of the respondents’ witnesses conceded that a score of zero for technical qualifications for the applicant by Ms. Fox might be harsh. This was a recurring theme in the applicant’s cross-examination of the respondents’ witnesses. The applicant argues that this is an admission of bias on the part of the interviewer, Ms. Fox, who had not given evidence as of the end of the last day of hearing. I have considered this allegation and while it is evidence that might tend to support an inference of discrimination, the respondents’ case answers any inference of discrimination that could arise from this scoring of the applicant. As previously noted the respondents’ evidence was that the successful candidate had had several years of experience in a technology environment and demonstrated to Mr. Hill and apparently Ms. Fox that she had an understanding of how these systems worked and would be able to de-construct them as necessary to meet the requirements of the position. Whether or not Ms. Fox’s score was harsh or not, it was not dramatically different from the other assessments made of the applicant’s technical skills by others including her referees. I also note that Mr. Hill testified, and the applicant appears to agree, that he made the ultimate decision.

21The applicant also relied on the fact that Mr. Hill conceded that some of the references for the successful candidate were too good to be true or words to that effect. It is clear from the material that those for whom the successful candidate had worked could not say enough about her. There is no evidence that Mr. Hill had any role in “cooking” positive references for the incumbent and negative ones for the applicant. In all of the circumstances it is not at all clear how highly positive references for the successful candidate are or could amount to evidence of discrimination on the part of Mr. Hill or the respondent Board as against the applicant, who was an unsuccessful candidate.

22The applicant argued that the applicant was an internal candidate and the incumbent a contract employee and therefore considered external. The applicant argued that she should therefore have been given preference over the incumbent. It is not at all clear on the evidence that the applicant’s assertion is correct but in any case it is not evidence of discrimination.

23The applicant argued that the incumbent had “questionable credibility”. It is somewhat unclear what position this submission was intended to support. However, to the extent that it was intended to undermine the incumbent’s credibility as a witness, I do not understand this submission given that the incumbent was not a witness in the hearing and has played no role in this proceeding. To the extent that it may have been an attempt to somehow support the applicant’s contention that she was more qualified because, presumably, unlike the incumbent she did not have “questionable credibility”, I would give this submission no weight. The allegation was speculative and unsupported by any particulars or evidence.

24The applicant argued that Mr. DeMaeyer, one of the applicant’s referees, testified that he had no knowledge of the applicant’s computer skills but he nonetheless did not recommend her for the position. The applicant argued that Mr. DeMaeyer did not give the applicant an opportunity to demonstrate her computer skills to him. The applicant argued that Mr. Hill who recorded Mr. DeMaeyer’s remarks had a duty to ask Mr. DeMaeyer whether he had any knowledge of her computer skills. The applicant also argued that the respondents have not given any explanation of Mr. DeMaeyer’s “admission” that he did not have knowledge of her computer skills and yet did not recommend her for the position. In the applicant’s view this amounts to an admission that the respondents discriminated against the applicant. The applicant’s submission in this regard is difficult to understand. Mr. DeMaeyer was selected by the applicant as a referee. She knew the position for which she was competing and presumably knew what knowledge Mr. DeMaeyer might have had about her skills for the job in question. I fail to see how in these circumstances Mr. DeMaeyer’s lack of knowledge of the applicant’s skills in a certain aspect of a position “reveals a pattern of bias against the applicant”. The evidence of Mr. DeMaeyer was that he did not recommend the applicant for the position based on other issues than her technical competence. His view, having worked with her for a time, was that she had difficulties with multi-tasking and priority setting, important elements of the position but non-technical in nature.

25The applicant argued that the fact that the applicant never received an evaluation of her performance although requested and that the incumbent did receive one is evidence of differential treatment. The applicant argued that the explanation given by the respondents is “totally unreasonable and unacceptable”. This is not so. As with many of the applicant’s submissions it ignores or mis-states the evidence at the hearing. The performance evaluation of the incumbent occurred long after the events underlying this Application. Strictly speaking, it is not a separate or distinct allegation that I can deal with under the scope of this Application. However, to the extent that it might be after the fact evidence which might tend to support the applicant’s claim of differential treatment, I have considered it. The evidence of the respondents was, contrary to the submission of the applicant, that no one was provided with an evaluation except those for whom some evaluation was required by law or the relevant collective agreement. There was no legal or contractual requirement that the applicant be given a performance review while there was for the incumbent who was a probationary employee. The un-contradicted evidence of Mr. Hill was that because of a backlog in evaluations of teaching staff he was unable to perform evaluations of staff who might have wanted or needed an evaluation for career development reasons. This unfortunately appears to have meant that for a time at least the applicant was not provided with an evaluation. Mr. Hill also testified that he was prepared to conduct the evaluation but because of this and other legal proceedings was advised not to.

26Contrary to the applicant’s submissions, there was almost no evidence presented by the applicant that would support the conclusion that the competitions in question were tainted by bias. At its highest her case amounted to the allegation that the successful incumbent did not have the technical qualifications for the position and that there was a procedural defect in the second of two competitions. This appears to be true, but as discussed above, even if this evidence were sufficient to establish a prima facie case of discrimination (i.e. enough to require a response) the respondents’ evidence provides a complete response to it.

27The respondents’ evidence on the other hand was persuasive on the points in question. I am satisfied based on the evidence of Mr. Hill that he considered the applicant’s qualifications fairly and determined that in his judgement the applicant was probably not able to perform the tasks of the position but more importantly the incumbent was clearly the superior candidate. I also accept his evidence (which was confirmed by one of the referees other than Mr. Hill himself) that the applicant’s other referees recommended that she not be hired for the position. Even assuming that there was a prima facie case of discrimination to respond to, the respondents have more than satisfied their obligation to provide a non-discriminatory explanation for the decisions that were made.

28I find for these reasons that based on the evidence I have heard to date the Application must be dismissed. I also find that there is no reason to hear the remainder of the respondents’ evidence in all of the circumstances. As indicated above I heard the entirety of the applicant’s case. To the extent that the applicant might have lead evidence that required a response from the respondents, that has been provided by Mr. Hill who made the decision. The applicant did not argue and there is no reason to believe that any of the respondents’ remaining witnesses, one of the other referees who recommended that she not be hired for the position and Ms. Fox, would have any evidence to offer that would support the applicant’s position.