Graff v. Jones Lang LaSalle Real Estate Services, Inc., 2014 HRTO 1459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Graff

Applicant

-and-

Jones Lang LaSalle Real Estate Services, Inc.

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: September 30, 2014

Citation: 2014 HRTO 1459

Indexed as: Graff v. Jones Lang LaSalle Real Estate Services, Inc.

APPEARANCES

Brian Graff, Applicant

Bruce Best, Counsel

Jones Lang LaSalle Real Estate Services Inc., Respondent

Jason Beeho, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing in this matter was bifurcated on the question of liability and remedy. This decision concerns the issue of liability. In support of the applicant’s case, the applicant and his physician, Dr. Studniberg, testified. Phil Notley, Corey Turner and Eamonn Murphy testified for the respondent.

The Facts

3The respondent Jones Lang LaSalle Real Estate Services, Inc. (“JLL”) is a commercial real estate firm that provides real estate and investment management services. At the time of these events, JLL’s Canadian offices were located in Montreal, Mississauga and Toronto, and it reported to its parent company in Chicago.

4The applicant commenced employment with JLL in Toronto on January 5, 2005 as an analyst, corporate solutions, and subsequently became a financial analyst. His annual salary was $52,500.00 for the first three months, and $55,000.00 for the next eleven months, with a target bonus of 15% of his base salary.

5In July 2006, the employees and managers of JLL were notified that their human resources needs would be provided by Corey Turner (“Turner”) from Chicago. In a memo dated July 7, 2006, Turner advised JLL employees and managers that he would provide assistance with any employee relations issues, including employment terminations. Mr. Turner attended at the Toronto office once a month.

6On October 31, 2006, the applicant wrote to Turner to inquire about the process for recording a confidential matter in his personnel file. The applicant met with Turner in early November 2006 and provided him with a memo dated November 8, 2006 that said the following:

I just wanted to make sure that someone within the company is aware that I have a recurring disability related to Depression and Anxiety – you are the most appropriate person.

Normally, this is either not a problem or only a minor problem, and it should not affect my work, but it is quite possible that at other times, particularly when I am under severe stress in my work or personal life, that this will affect my ability to work and in particular, the quality of my work. As well, this can have an impact on my personality and my ability to work effectively and interact with other people.

In addition, because this can affect my judgment, I might be unable or unwilling to recognize the seriousness of the problem, or to seek treatment when it is appropriate (although I should also note that generally treatment has not been effective in my case).

I do not want this to be common knowledge with the company, as there is still a stigma regarding mental health issues, but I do want this documented and for one or two appropriate people to be aware of this health issue.

7Turner ceased providing human resources support to the Canadian operations in March 2007. That function was taken over by Jeff Skore, also from Chicago.

8During his employment, the applicant worked predominately with two brokers: Eamonn Murphy (“Murphy”) and Tom Cooper (“Cooper”). Murphy was the applicant’s supervisor during the early years of his employment.

9By 2008, the applicant’s annual salary was $100,000.00.

10In 2010, JLL hired a new Canadian president, Jim Becker (“Becker”). Becker met with the applicant on January 23, 2010. Becker advised the applicant that he wanted him to take over the client management software. The applicant asked him to consider other options for his position. Becker asked the applicant to come up with a game (business) plan as to how he saw himself progressing at JLL. The applicant did not come up with a plan.

11On February 4, 2010, the applicant met with Cooper to inquire whether he had a role for the applicant. Cooper suggested the applicant consider commission sales. The applicant rejected this idea.

12On March 26, 2010, the applicant emailed Murphy to ask whether they could meet to discuss his future role in the company. The applicant did not arrange this meeting.

13In the middle of 2010, Phil Notley (“Notley”) joined JLL as the Marketing Manager and later became Vice President of Strategic Operations in Canada. His mandate was to grow the Canadian business of JLL in terms of research and marketing. At the time Notley joined JLL, it had three offices in Canada and seventy employees. Today there are seven offices and 500 employees.

14In January 2011, Notley became the applicant’s supervisor.

15In February or March 2011, Notley decided to terminate the applicant’s employment for two reasons: compensation and service. Notley believed the applicant was over-paid and was not servicing all of the brokers equally. Notley felt the applicant was not taking initiative and was not working collaboratively. Notley informed the management team of his decision and received its approval.

16The applicant’s employment was terminated on April 26, 2011 by Notley and Mike Weber (“Weber”), the Chief Executive Office of JLL. Notley did not consult with the applicant about his performance concerns prior to terminating his employment.

17On April 27, 2011, the applicant wrote to Becker and advised him that he had had mental health problems in the past and that it was possible, his depression and anxiety affected his performance in the last year.

18On April 20, 2011, JLL hired a new financial analyst at an annual salary of $52,000.00.

Analysis

19The applicant bears the onus of establishing discrimination on a balance of probabilities. The applicant must prove it is more probable than not that one or more Code grounds was a factor in the decision to terminate his employment. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109.

20If the applicant makes out a prima facie case of discrimination, the evidentiary burden shifts to JLL to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination with just any rational alternative explanation. JLL must offer an explanation which is credible on all the evidence. The ultimate issue is whether an inference of discrimination is more probable from the evidence that the actual explanation offered by JLL. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77, upheld 2012 ONCA 155.

21The applicant alleges that his disability and/or age were factors in the decision to terminate his employment. I will deal first with his allegation of disability-based discrimination.

Was the Applicant’s Disability a Factor in the Termination of his Employment?

Parties’ Positions

22The applicant believes his disability influenced the decision to terminate his employment because the reasons for termination match the symptoms of his disability. The applicant submits that JLL knew or should have known about his disability prior to terminating his employment. He submits further that if JLL did not know about the applicant’s disability, its ignorance was the result of its actions or inactions. The applicant asserts an employer should not be able to escape liability through its own error.

23JLL asserts that Notley alone made the decision to terminate the applicant’s employment and he did so, without any knowledge of the applicant’s disability. JLL submits that if Notley had no knowledge of the applicant’s disability, it could not have been a factor in the decision to terminate his employment. JLL submits further that it could not have known about the applicant’s disability because there were no outward signs - disability leaves, absenteeism, unusual behaviour – that would have alerted it to this fact. JLL submits its complaints about the applicant’s performance were commonplace and did not raise any disability-based concerns.

24The outcome of this Application turns in some measure on the relative credibility of the witnesses that testified before me. Where it was necessary to resolve a conflict in the evidence in order to arrive at my findings, I have indicated my reasons for doing so. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. As such, I have considered the extent to which each witness’ testimony was in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable.

Reasons for Termination

25Notley testified that he terminated the applicant’s employment because he was overpaid and because he was disappointed with the quality of the applicant’s client services. He testified the applicant was selective about which brokers he would work with, his level of service did not support the entire business, he failed to take on additional tasks, and he generally avoided doing work. Notley stated it was a struggle to get the applicant to participate in a collaborative work environment.

26A psychiatric evaluation of the applicant was conducted by Dr. Hanick in September 2005. In his report of September 27, 2005, Dr. Hanick confirmed the applicant had a longstanding severe chronic dysthymic disorder (mild but chronic form of depression), together with a recurrent major depressive disorder. Dr. Hanick diagnosed the applicant with schizoid personality disorder demonstrated by a pattern of detachment from social relationships and a restricted range of emotional expression. Dr. Hanick reported further that the applicant suffered from avoidant personality disorder, with a long-standing pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluation. Finally, Dr. Hanick confirmed the applicant had experienced persistent social anxiety and social inhibition since the early 1980s, the consequence of which he was risk avoidant and socially avoidant. In August 2011, Dr. Hanick confirmed this assessment continued to be correct.

27Dr. Studniberg, the applicant’s physician for more than thirty years, testified that the applicant had experienced chronic depression and anxiety since at least 1982. In his report dated January 8, 2013, Dr. Studniberg stated the applicant had minimal success with treatment and the symptoms that he experienced as a result of his mental health had been ongoing at varying levels since its inception. These symptoms included anxiety, inability to handle stress, depression, difficulty with social events, disrupted sleep and fatigue, as well forgetfulness and difficulty concentrating. Dr. Studniberg testified the applicant’s lack of cooperation, resistance to taking on new projects and lack of initiative at JLL were all symptomatic of his mental health.

28I accept the evidence of Dr. Studniberg that the applicant experienced chronic anxiety and depression commencing in 1982. I also accept Dr. Hanick’s report that the applicant’s personality disorder resulted in detachment from social relationships and risk-avoidant behaviour. I further accept Dr. Studniberg’s conclusion that the applicant’s mental health impacted his ability to handle stress, work in a collaborative environment, take initiative, and assume new work.

29JLL relies on a report of Dr. Hanick dated January 18, 2012. In that report, Dr. Hanick stated the applicant’s complaints indicated the normal and everyday pressures of his life, and the applicant quickly found his mental illness an explanation for his failings. Dr. Hanick expressed the view there were issues of secondary gain for the applicant. The pressures referred to by Dr. Hanick related to the applicant managing two houses.

30The applicant may well use his mental health as an excuse. This does not undermine the fact of his disability and its symptoms, nor does it address the question before me: is there a connection between the applicant’s disability and his termination? Dr. Hanick believed there was a link between the applicant’s disability and the termination of his employment, as is evident from the following statement his 2012 report:

It is apparent that his longstanding personality dysfunction is the basic problem behind his work dismissal. Whether he can really work for long is not clear. However, he has demonstrated that he might be able to work for relatively shorter periods, but cannot work productively for long in an office or social environment. He should consult a lawyer.

31JLL relies further on a report from Dr. Wasserman dated December 4, 2012. Dr. Wasserman stated in her report that the applicant’s interpersonal style may have led to additional difficulties, which further impact his mood. I have no reason to doubt this finding. The applicant’s interpersonal style may well be a contributing factor to his mood. The fact that there are factors, in addition to the applicant’s mental health, that impact his mood, does not take away from his disability and its symptomology.

32Finally, JLL relies on the vocational assessment report of Kent Bowman (“Bowman”) dated July 15, 2013, which stated the applicant left JLL due to restructuring of the company. Bowman reported the applicant felt his layoff was due to personality conflicts and the company reducing costs by hiring less expensive talent. JLL submits this is an admission by the applicant that his employment was terminated for non-discriminatory reasons. This submission ignores the impact of the applicant’s personality disorder on his ability to get along with others.

33JLL submits further that the applicant conceded that it had no knowledge of his disability in the Application. The Application was self-drafted by the applicant. In the Application, the applicant stated that Weber and Becker had no overt knowledge of his disability or its impact on his personality, behaviour or performance. The applicant went on to say that while there was no evidence of direct discrimination, he was terminated because of the impact of his mental health problems.

34I find there was no admission by the applicant that JLL had no knowledge of his disability for several reasons. First, the lack of knowledge referred to in the Application was attributed to Becker and Weber. Neither of these individuals testified before me. The issue in this case is whether Notley had knowledge of the applicant’s disability. Second, the applicant was not in a position to know what information JLL had or did not have at the time of termination. More importantly, the applicant was not in possession of the evidence that is now before me. Fourth, at the hearing, with the assistance of legal counsel, the applicant did not concede that JLL had no knowledge of his disability. Fifth, whether or not JLL had knowledge of the applicant’s disability is the very issue I have to decide.

35I therefore find that when the applicant was terminated, in part, because of his lack of initiative, avoidance of work, interactions with others, and his failure to work collaboratively, he was terminated for behaviour that was linked with his disability.

36JLL defends this finding by asserting that Notley, the person who made the decision to terminate the applicant’s employment, had no knowledge of his disability.

Knowledge of Applicant’s Disability

37JLL was advised of the applicant’s disability and its accompanying symptoms in the November 8, 2006 memo. Turner testified that he met with the applicant in November 2006 and although he did not remember the memo specifically, he assumed he put the memo in the applicant’s personnel file, located in Toronto. The applicant had met with him for that specific purpose. In the memo, the applicant requested that the information not be common knowledge within the company and for one or two appropriate people to be aware of his health issue.

38JLL suggests that the memo may not have been in the applicant’s personnel file because it was not there when disclosure was made for this hearing. There is no evidence before me as to what documents were in the applicant’s personnel file at the time of termination in April 2011. JLL did not call anyone from human resources to give this evidence. In the absence of any evidence to contradict Turner’s evidence, I find the November 8, 2006 memo was in the applicant’s personnel file at the time of termination.

39JLL submits that Notley did not have knowledge of the applicant’s disability. Notley testified that he alone made the decision to terminate the applicant’s employment, with the approval of the management team. Notley testified that he did not consult with human resources prior to making the termination decision and did not review the applicant’s personnel file before making the decision. He testified that Weber might have consulted with human resources. Weber was not called by JLL as a witness. Notley testified further that JLL retained outside counsel to prepare the applicant’s termination letter.

40After reviewing the evidence of Notley, Murphy, and considering the absence of any corroborating evidence from human resources, it is my view that Notley’s assertion that the decision to terminate was made without consultation with human resources and without review of the applicant’s personnel file is not credible for the following reasons.

41First, Notley was very new to his job. He came to JLL in the middle of 2010 and became the applicant’s supervisor in January 2011. It is likely that he would have sought advice from human resources about the protocol for terminating an employee at JLL. Second, Notley made the decision to terminate the applicant’s employment in February or March, and yet the actual termination date was April 26, 2011. It is probable that he consulted with human resources during that two-month period. Third, the applicant had an employment agreement, which dictated his compensation on termination. The letter of termination referred to the employment agreement and the compensation provided thereunder. This information would have been obtained from human resources. Fourth, Murphy testified that it was common practice to obtain human resources advice to ensure the proper termination process was followed. Fifth, there is no documentation to corroborate Notley’s evidence that he made the decision without consultation with human resources. There is simply no documentation at all about the termination decision. I therefore do not accept Notley’s evidence that he did not consult with human resources prior to making the decision to terminate the applicant’s employment.

42Further support for this finding can be found in JLL’s Termination of Employment Policy dated January 1, 2009. This Policy states approval from human resources must be obtained before involuntarily terminating an employee.

43JLL submits that JLL retained outside counsel to prepare the termination letter because the Toronto office did not have a human resources department. This argument suggests that because JLL did not have a stand-alone human resources department in Toronto, it did not have access to human resources support. This is inconsistent with Turner’s evidence that human resources support was provided by a designated representative in Chicago. It is also contrary to Murphy’s evidence that human resources was always involved in terminations. Both Turner and Murphy were called as witnesses for JLL.

44The issue then becomes whether in the process of consulting with human resources, the applicant’s personnel file would have been reviewed. This review would have disclosed the November 8, 2006 memo and the fact of the applicant’s disability and symptomology. Turner testified that only human resources and the office manager had access to the personnel file.

45Murphy testified that it was standard practice for human resources to review an employee’s personnel file before making a decision to terminate an employee. He stated JLL is a huge company with lots of processes in place. That makes an abundant amount of sense. How else does an employer determine the compensation to be provided (in the case of a without cause termination) without reviewing an employee’s personnel file?

46It is clear that a review of the personnel file happened in this case. The letter of termination dated April 26, 2011 referred to the applicant’s employment agreement and the compensation thereunder. The employment agreement would have been in the personnel file in 2011. There is no evidence to the contrary.

47In my view, it is simply not credible that the applicant’s personnel file was not reviewed in the process of terminating the employment of a six-year, $100,000.00 per year employee. This termination caused sufficient concern that outside counsel was retained. Had human resources reviewed the personnel file, it would have been aware of the applicant’s disability and would have alerted Notley to this fact. The memo of November 8, 2006 was a noteworthy memo. Even if human resources did not notify Notley, human resources would have been privy to this information. As such, JLL had the requisite knowledge of the applicant’s disability prior to termination. Again, there is no evidence from human resources to refute this finding.

48At this point, I must address the disclosure of the applicant’s personnel file on September 30, 2013. Seven documents were disclosed as being the applicant’s “personnel file”. The memo of November 8, 2006 was not included in this disclosure. As stated earlier, there is no evidence before me as to what documents were in the applicant’s personnel file at the time of termination. For this reason, I cannot find that the documents disclosed in September 2013 accurately represented the applicant’s personnel file in 2011. Importantly, there are documents missing from this disclosure that one would have thought would have been in the applicant’s personnel file, including the applicant’s employment agreement and dismissal letter.

49JLL submits that no adverse findings (as requested by the applicant) should be made because of the lack of documents in the applicant’s personnel file. It submits that at the time of the applicant’s termination, JLL’s Toronto office was a relatively small operation and did not have a human resources department. At this juncture, it is important to clarify that I am not making an adverse finding against JLL on the basis that the personnel file contained little documentation when it was produced. My finding is there is no evidence from human resources to refute the evidence of Turner that he put the November 8, 2006 memo in the applicant’s personnel file, or so he assumed. Put differently, there is no evidence that the memo was removed from the personnel file. If it was not removed, it was in the personnel file at the time of termination.

50I find Notley’s evidence that he did not consult human resources and therefore did not know the contents of the applicant’s personnel file not credible. Notley would have contacted human resources to obtain advice on the protocol to follow when terminating the applicant. Human resources would have in turn reviewed the personnel file in order to determine JLL’s legal obligations on termination, even if that meant forwarding the personnel file from Toronto. Upon conducting that review, it would have become aware of the November 8, 2006 memo. A review of the personnel file would have alerted JLL and Notley to the existence of the applicant’s disability and the resulting symptoms.

51Upon receipt of the fact that the applicant had a disability that could impact his work performance, JLL had an obligation to meet with the applicant to determine if that was the case and if so, what accommodation was required. Had JLL met with the applicant prior to termination, he would have disclosed the connection between his work performance and disability. He made that connection with Becker the day after he was terminated. JLL cannot ignore the November 8, 2006 memo, fail to meet with the applicant about its performance concerns, and then assert that it had no knowledge of the applicant’s disability.

52JLL submits the applicant failed to ensure that it was given current and meaningful information about his disability. The difficulty with this argument is the applicant’s medical condition had not changed since 2006. The information contained in the November 8, 2006 memo is consistent with the medical evidence before me. Further, the applicant was not informed there were performance problems. If the applicant did not know there were performance concerns, he did not know his medical condition was at issue. The applicant alerted JLL to this fact in the November 8, 2006 memo when he stated his depression and anxiety could affect his judgment and that he might be unable or unwilling to recognize the seriousness of the problem. If the applicant had been told about the performance problems, the accommodation dialogue could have then begun. If JLL required further information, it could have been obtained in that process.

53For these reasons, I find that it was more probable than not that JLL knew about the applicant’s disability and its symptoms prior to termination, and that the applicant’s disability caused or contributed to some of the performance concerns relied upon to terminate his employment. As such, JLL terminated the applicant’s employment for a disability-related reason and has contravened the Code in doing so. In light of this finding, it is not necessary to address the alternative argument that if JLL did not have actual knowledge, it ought to have known about the applicant’s disability.

54The applicant argues that because he was replaced by a younger employee he was the subject of age discrimination as well. In my view, this single fact, in the absence of any other evidence, is insufficient to establish a claim of age discrimination. For this reason, this allegation is dismissed.

55Before concluding my analysis, it is important to note one thing. The finding that the applicant’s termination was discriminatory does not mean that his employment would have continued on indefinitely. At the time of the termination, JLL was in a growth mode and the applicant was requested to redefine his role in the expanding company, presumably because he was being asked to take on more or different work. The applicant was aware that he was required to take on a new role at the company: this is acknowledged in his letter to Becker dated April 27, 2011. The applicant was subsequently replaced in his financial analyst position by someone at one-half the salary. Thus, if the discrimination had not occurred at the time of termination, the applicant may well have been subsequently terminated for non-discriminatory reasons.

Finding

56The applicant was discriminated against contrary to section 5 of the Code when JLL terminated his employment for conduct that was caused or influenced by his disability.

57The Tribunal will schedule continuation dates for the remedial portion of this hearing, if the parties cannot resolve that issue directly. I am also prepared to conduct a mediation/adjudication of this issue, with the parties’ consent. The parties are directed to notify the Tribunal whether they are prepared to mediate the remedial issues within two weeks of the date of this decision.