Marne v. Aptco Capital Corporation, 2014 HRTO 1756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aliyma Marne Applicant

-and-

Aptco Capital Corporation and Marlene Cativo Respondents

DECISION

Adjudicator: Naomi Overend Date: December 5, 2014 Citation: 2014 HRTO 1756 Indexed as: Marne v. Aptco Capital Corporation

APPEARANCES

Aliyma Marne, Applicant ) Kelvin Forde, Representative Aptco Capital Corporation and ) Robert Choi, Counsel Marlene Cativo, Respondents )

introduction

1The applicant, Aliyma Marne, worked as a housekeeper for the organizational respondent, Aptco Capital Corporation (“Aptco”), from October 2012 until January 4, 2013. She states she was fired after the respondents learned of her pregnancy, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The respondents deny that her pregnancy was a factor in her termination, but say that she was fired as a probationary employee because she had failed to notify them in a timely way about her absences.

2For the reasons discussed below, I find that the applicant’s pregnancy was a factor in her termination by Aptco, and that its non-discriminatory explanation is not supported by the evidence. I find, however, that the individual respondent, Marlene Cativo, did not make the decision to terminate the applicant’s employment and, accordingly, make no finding of liability against her.

facts

Background

3The applicant was hired October 22, 2012 as a fulltime housekeeper for the respondent corporation. Aptco is the landlord of a residential building at 50 John St., Toronto at which the applicant worked. It rents out both furnished and unfurnished units and employs approximately 9 full and part-time housekeepers to clean the furnished units.

4Two of the applicant’s co-workers testified. Nadine Scott, whom the applicant called, was hired on the same date as the applicant, and quit in June 2013. She went to the same training/educational program as the applicant and was a friend of the applicant’s. The respondent called Jesusa Basbas, who was, at the time she testified, still employed as a housekeeper for Aptco.

5The applicant’s immediate supervisor was the personal respondent, Marlene Cativo. Cativo, in turn, reported to Patricia Hung, Manager-Furnished Suites, and Stacey Coolman, VP of Operations (who was responsible for human resources). Cativo and Coolman both testified; Hung did not. In addition, the respondents called a maintenance worker, Michael Racinot, who had a brief encounter with the applicant on her last day of work.

6The applicant testified that she worked from 7:30 or 8 to 4:30, Mondays to Fridays. By all accounts she was a good worker and there were no complaints about her job performance. She testified that she discovered she was pregnant in November or December, having felt sick for a while. She disclosed to Cativo, her supervisor, that she was pregnant on December 11, 2012, after having a dizzy spell at work.

7Cativo took the applicant to see Coolman and Hung that day so she could advise them of her pregnancy. Everyone is in agreement that Coolman congratulated her, but expressed concern that the applicant was working with cleaning chemicals and suggested to the applicant that she might like to stop working until after the birth of the baby. Alternatively, Coolman asked the applicant to get a medical clearance letter from her doctor. The degree to which this was a “suggestion” or a command is in dispute.

8The applicant did, in fact, get a clearance letter from her doctor on December 17, 2012, which she handed to Cativo on December 18, 2012. Her meeting with Coolman was on the previous Tuesday. She worked the remaining days of the week (i.e., the Wednesday to Friday). Although she did not work the day of her doctor’s appointment because she had two appointments that day, she returned to her full duties on Tuesday, December 18, 2012.

9It is common ground between the parties that the applicant was absent from work on three occasions: November 5, December 17 and December 24, 2012. The parties do not, however, agree on whether the applicant advised the respondents that she would be absent from work on those occasions.

10On January 4, 2013, the applicant’s employment was terminated while she was still a probationary employee. The respondent asserts the termination took place because the applicant failed to give notice to her supervisor or managers on the three occasions she was absent. The applicant, in turn, alleges that she gave notice, and that the real reason her employment was terminated was because she was pregnant.

Credibility

11While some of the facts of this case are not contested and/or supported by documentary evidence, other facts require me to choose between conflicting testimonial evidence, in particular between the applicant and the personal respondent, Cativo. In evaluating this evidence, I have given consideration to the following analyses frequently cited in decisions of this Tribunal:

1. “When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony.” Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p.205

2. Credibility can be determined by evaluating whether the story provided by the witness is consistent with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:” see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)

3. In evaluating the credibility or reliability of evidence, one looks to a number of interrelated factors such as its probability, logical connection with other findings and support from independent evidence. In evaluating the credibility of a witness, one looks to such factors as the ability to “perceive and recall,” level of candour (or evasiveness) and “attitude towards the parties.” See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54

4. “A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable.” See Visic, supra.

12The manner in which the applicant gave her evidence appeared to be sincere. However, there were aspects of her evidence, discussed below, which was not supported by either independent evidence or the circumstances. I am not prepared to find, as respondents’ counsel invited me to, that the applicant “deliberately” fabricated a story, which goes to her credibility. Rather, in those instances, I have found that it goes to the reliability of her observation or recall.

13I had concerns about the testimony of the individual respondent, Cativo. As discussed in greater detail below, when confronted with an apparent contradiction, she simply reformulated her testimony even if this involved contradicting herself. It would appear that her continuing employment with the respondent affected her veracity as a witness as there were instances where she appeared to fit her testimony to what she believed to be the position of her employer.

Notice of the Applicant’s Absences from Work

Did the applicant give notice of her November 5, 2012 absence?

14The applicant testified that she felt ill on Saturday, November 3, 2012 with a severe migraine and went to see her doctor. Her doctor gave her a note excusing her from work on Monday, November 5, 2012.

15The applicant testified that she phoned in her absence on Sunday evening at around 10 p.m. Coolman testified that there is someone in Apco’s office during the day on the weekends who could have relayed the applicant’s message to Cativo had the message been left earlier. However, the applicant testified that she was not aware of this, which is not surprising given that this was less than two weeks into her employment. In any event, it is unnecessary to address the question of whether the applicant should have left an earlier message given that the respondents take the position that the applicant did not leave any message.

16The applicant testified that the number she phoned was 416 340-1221, which the parties agree is the main number for the office, and left a message. Cativo testified that she spoke with Patricia Hung, who works in the office, about the applicant’s absence on the Monday and was told that Hung had not received any call or message. Hung did not testify.

17In response to a Tribunal Order requiring it to provide call records for this number, Bell Canada advised that it does not keep records of local calls on landlines. The applicant testified that she asked her cellphone carrier to provide its records to show she made an outgoing call to the office number. However, by the time she had made her request, the records of calls for the time period in question had been expunged.

18The parties are agreed that the next day (Tuesday, November 6, 2012), the applicant returned to work and provided her doctor’s note to Cativo. They also agree that Cativo had asked her why she had not let Cativo know that she was not able to come in the previous day.

19The applicant testified that she told Cativo that she had phoned into the office and showed Cativo her call record on her cellphone, at which point Cativo suggested that the applicant call her (rather than the office) directly in the future, and to that end provided her direct work number and personal cellphone number.

20Cativo testified that when she confronted the applicant, the applicant told her that she had left a message, but that the applicant did not show her any call record. Cativo agrees that she gave the applicant her work number (416 827-5175) to call in the future. She testified, however, that she did not volunteer her personal cellphone number, which she stated was her son’s line, but that the applicant asked for it. She testified that she provided it, but the understanding was that the applicant would call the work number to report absences.

21I am unable to accept Cativo’s testimony that she did not provide her cellphone number for the purpose of the applicant calling in future absences. This proposition was not put to the applicant in cross-examination, nor was it raised in the respondents’ pre-hearing materials. There was no suggestion that Cativo and the applicant socialized or that there would be another reason why the applicant might ask for or otherwise require her personal number. Cativo did not contradict the applicant’s testimony that she provided it to the applicant on the morning of November 6, 2012, in the context of Cativo providing her with an alternate method of calling in absences. Moreover, Cativo testified that she used the cellphone as her alarm clock and checked it every day upon waking which is inconsistent with this phone being primarily used by her son.

22In the absence of any definitive answer on whether a call was made from the applicant’s number to this number at the specified time and date, I must decide this issue on the basis of the other evidence, including, of course, the applicant’s testimony that the call was made.

23While I am prepared to find that Cativo was not told by anyone at the main office that the applicant would not be in on November 5, 2012, given that both she and the applicant testified that she confronted the applicant upon her return to work about why she had not called, I am not prepared to accept her testimony that she was told by Hung that, in fact, no message had been left. This was not in her witness statement or the Response to the Application. Given my concerns about Cativo’s credibility, I am not prepared to accept this statement without any support.

24Even if I were to accept that Cativo had been told by Hung that no message was received, I am not prepared to rely on that statement for the truth of its contents. Hung did not testify, and her first-hand evidence on whether or not a message was left would have been the only reliable evidence the respondent could have called on this issue.

25The applicant’s testimony that she left the message is consistent with the behaviour of the parties. It would be unusual for the applicant to go to the trouble of getting a medical note excusing her from work, but then not bothering to let anyone know that she would not be present on the work day covered by that note. I accept the applicant’s evidence that she attempted to show Cativo the call record on her cellphone on November 5, 2012, which further bolsters her evidence that such a call was made the night before. Although Cativo denies that this took place, it is the version of events most consistent with the fact that Cativo provided the applicant with alternate means of contact.

26In the absence of any reliable evidence contradicting it, I am prepared to accept the applicant’s evidence that she called on the evening of Sunday, November 4, 2012 and left a message. I am also prepared to find that when she discovered that Cativo had not apparently been told about her absence, the applicant acted in a manner consistent with someone who wished to ensure that this did not happen in the future.

Did the applicant give notice of her December 17, 2012 absence?

27In response to the demand by Coolman that she get a medical note allowing her to continue to work, the applicant arranged an appointment with her doctor on December 17, 2012. When she returned to work on December 18, 2012, she provided a copy of the note to the respondents.

28The respondents assert that the applicant did not give them notice of this absence. The applicant, in contrast, states she told both Cativo and Patricia Hung at the Christmas luncheon the week before. As noted above, Hung did not testify and so I only have the applicant’s uncontradicted testimony that this supervisor was told.

29With respect to the discrepancy between the applicant and Cativo’s testimony, I prefer the applicant’s version. First, given that the applicant was asked to obtain this note by management, and believed she would not be allowed to work in the absence of such a note, I find it more likely that the applicant would have taken the trouble to let her supervisors know that she had set up the appointment. Secondly, I have found that the applicant was careful to let the appropriate people know of her other absences. These two facts make it more probable that she would tell the respondents about her doctors’ appointments, especially when she knew about them several days in advance.

Did the applicant give notice of her December 24, 2012 absence?

30The applicant’s third absence from work was on December 24, 2012. She testified that she woke up in the early hours of the morning with a severe migraine and pain and swelling in her right hand. She states that she sent a text message from her cellphone to Cativo’s cellphone to let her know that she would not be into work that day because she had a migraine and pain in her right hand.

31The applicant was able to provide a printout of this message, which indicates that it was sent to Cativo’s number at 4:08 a.m. Cativo denied receiving this message and the applicant was cross-examined extensively on the authenticity of the printout. As noted above, she was not able to get the cellphone records for her number. She also stated that her cellphone was not operational at the time of the hearing, and so she was unable to retrieve the text record on her phone to verify her receipt. To that end, the applicant produced the broken phone at the request of the respondents’ counsel.

32After the first two days of hearing, during which the parties put in their evidence, I directed the parties to bring a Request for an Order During Proceedings for Cativo’s cellphone records (among others) and to give notice to the carrier that such a request was being made. Bell Canada produced the records of Cativo’s personal cellphone which showed that at 4:08 a.m., December 24, 2012, Cativo received two text messages from the applicant’s cellphone number. In light of this documentary evidence, I have no difficulty accepting that such a text was sent.

33Although she had testified already, the respondents recalled Cativo to explain this cellphone record. She testified again that she did not receive any text. She also testified about her usual morning routine, which she implied leaves her little time to do anything like check for messages while still at home. In contrast, when she testified earlier (i.e., prior to the production of the phone records), Cativo testified that she checks her phone every morning because it also acts as her alarm clock, and she did not see a text message.

34When the applicant did not show up to work that day, Cativo phoned her at home. The applicant told Cativo that she had sent a text. When on the stand the second time, Cativo testified that she then checked her phone after and did not see anything. However, she subsequently testified that she could not even remember whether she had her phone with her that day.

35On the basis of the contradictions in her testimony, I am simply unable to accept Cativo’s testimony that she received no such text even if one was sent to her. I accept the applicant’s testimony that she discussed this with Cativo who was then aware of the text.

The Respondents’ Reaction to the Applicant’s Pregnancy

Did management have concerns about the applicant working for the duration of her pregnancy?

36The respondents do not deny they expressed concern about the safety of the applicant continuing to work while pregnant. Coolman and Cativo testified that the applicant was working with “industrial strength” cleaners, which they both thought may be unsafe for the applicant’s unborn child. Indeed, Coolman testified that from her personal research, she discovered that these chemicals are “absorbed through the womb.” In addition, Coolman expressed her belief that lifting heavy items such as mattresses might also be unsafe.

37The applicant testified that at the meeting where she disclosed her pregnancy to Coolman and Hung, Coolman suggested to her that she stop working for the duration of her pregnancy. She testified that she advised Coolman her doctor had told her she could work, to which Coolman responded by telling her she had to get a doctor’s note, and advised her to get an appointment as soon as possible.

38The respondents point out that in the narrative portion of the Application, the applicant states that she was “told” by Coolman that she either “go home and rest or get a medical note saying [she] could work.” By this, they understood the applicant to be saying that she had to leave work until such time as she was able to get the medical note, which contradicts the applicant’s testimony (as well as the testimony of the other witnesses) that she did not go home after her meeting with Coolman, but continued to work for the remainder of the week.

39While this line in the Application is certainly capable of the interpretation the respondents give to it, I do not see that the applicant, in fact, meant that she was sent home, but merely this was presented as the alternative to getting a medical note. Captivo testified that after Coolman congratulated the applicant on her pregnancy, she said to the applicant that “she should go home and go to the doctor” if she wanted to.

40Coolman testified that she offered the applicant the opportunity to go home that day after their meeting, but that she did not ever require the applicant to go home. She did, however, testified that she said to the applicant “if you want to work, you need a doctor’s note.”

41Coolman also testified that she had no difficulty accommodating the applicant’s pregnancy if that was necessary. She listed a number of pregnant employees who had worked for her without ramifications, although she did agree in cross-examination that these were all woman who worked in the office, not housekeepers.

42Finally, Coolman testified in cross-examination that she was dissatisfied with the brief note provided by the applicant’s doctor, but thought that there was nothing she could do about it. She opined that under the Employment Standards Act she was not allowed to ask any personal questions.

Did Cativo advise the housekeeping staff not to get pregnant?

43The applicant testified that on December 18, 2012, Cativo asked the assembled housekeepers if any of them were pregnant and warned them not to get pregnant, which she found embarrassing and believed was aimed at her. Cativo denies that she said this.

44The applicant states that all the housekeepers were in the lunchroom at the time, including her friend, Nadine Scott, and the respondents’ witness, Jesusa Basbas. Neither witness could recall this happening. Indeed, as pointed out by the respondents, Scott was on a scheduled holiday on December 18th.

45While something like this may have happened, the applicant’s ability to recollect the salient details, like who was present in the room, makes her testimony in this regard unreliable. On the basis of the evidence before me, I am not prepared to find that such a warning was made in the manner recalled by the applicant.

Did Cativo give Nadine Scott a box of condoms?

46Nadine Scott, a fellow housekeeper, testified that sometime after the applicant was fired, Cativo said she had “a surprise” for her and handed her a box of condoms, which embarrassed and shocked her. This box of condoms had come from a unit, which they had just finished cleaning after the guest had checked out. Scott testified that guests often leave items when they vacate a room. If the items are small and/or perishable, the housekeeping staff keeps them; larger items are returned. Scott kept the box of unopened condoms after this, and was able to produce it at the hearing.

47Cativo denies that she gave Scott a box of condoms and testified that this allegation has made her feel “very bad.” She says she does occasionally, as supervisor, do “checkouts” where she has first dibs on the items left behind, but that she does not give gifts. I would note that there was no suggestion in Scott’s testimony that she regarded the offering as a gift, but rather as a warning with respect to pregnancy. Given my stated concerns about Cativo’s credibility, the fact of her denial does not dispose of the matter.

48With respect to Scott’s credibility, she is a friend of the applicant’s and so might have a motive for fabricating such a story. On the other hand, it is a strange fabrication and one would have thought that a more helpful story might have been concocted to bolster the applicant’s position. Indeed, had the applicant truly colluded with Scott to create evidence in support of her position, one would have thought it would be that Scott was present when Cativo warned the assembled housekeepers not to get pregnant. Scott, however, denied knowing about this.

49Scott’s testimony on the whole was given without embellishment and in a straightforward manner. When she knew something she readily testified about it without contradiction. Given this and the fact that she was able to produce the box of condoms, I am prepared to accept that this incident happened.

Did Cativo tell the applicant that she was fired because she was pregnant?

50The applicant was fired at the end of the work day on January 4, 2013. She testified after the meeting, which took place in Coolman’s office, she and Cativo went down to her locker where she gathered her belongings and a basinet that one of the tenants had given away. She testified that when they were alone, Cativo said to her, “You know why they fired you, right? It’s because you are pregnant.” Cativo denies making this remark.

51It was suggested that Cativo had little opportunity to say anything to the applicant because they were accompanied by two other male employees during this period. However, it would appear from the testimony of the applicant and Cativo that they were alone during the two elevator rides from Coolman’s office to the P1 level, where the locker room was located. The applicant testified that they were alone in the locker room as well. Cativo denies this, saying that she merely went into the locker room to bring the basinet to Racinot and another employee identified as the building manager, Brian Kenty, who were asked to take the basinet apart so that the applicant could transport it home.

52Racinot testified that he and Kenty had been asked to escort the applicant out and so they were waiting for her on the ground level. He said that Patricia Hung called him approximately 10 minutes later to ask him (and presumably Kenty) to meet the applicant and Cativo down on the P1 level to deal with the basinet. Given this sequence of events, I find that there was ample time for Cativo to tell her why she believed the applicant was fired when there were no other persons around.

53Simply because there was opportunity to say it, does not, however, mean that Cativo did say it. Cativo testified that a remark such as this is outside her character, that she comes from a conservative family. It is not clear to me why this would be a statement that would offend conservative values.

54Cativo also testified that when she was alone with the applicant in the elevators down to the P1 level, she remained silent. The applicant testified that she had challenged the stated reason for her termination in the meeting with Coolman and Hung, and was distraught and crying in the elevator. Cativo agreed that the applicant was “sad.” In these circumstances, especially given the fact that I have found that Cativo was aware that the reasons given for the applicant’s termination were false, I find it believable that Cativo would have attempted to comfort the applicant by acknowledging what she understood to be the actual reason for the termination. Given my earlier findings on the respective credibility of the two witnesses, I am prepared to find that the remark was made.

decision and analysis

55The applicant bears the burden of proving on a balance of probabilities that her pregnancy was a factor in the decision to terminate her employment. Once she has met her evidential burden to establish a prima facie case, the evidential burden shifts to the respondents to refute the applicant’s evidence and/or to establish a non-discriminatory explanation for their conduct.

56In this case, the applicant has met her prima facie case. The respondents knew she was pregnant and had expressed some concern about the applicant continuing to work in what they regarded as an unsafe environment for her unborn child. Moreover, the applicant’s immediate supervisor had expressed to the applicant that the real reason for her termination was her pregnancy and had sometime subsequent to the termination, given a box of condoms to one of the applicant’s co-workers, an act which I infer was an ill-advised warning to this individual not to get pregnant and suffer the same fate as the applicant.

57The respondents were not able to refute the latter evidence (that is, I did not accept Cativo’s denials) and did not deny that they had safety concerns (indeed, continued to have concerns) about the applicant working while pregnant. No expert evidence was called, and I have not been asked to opine on this health and safety issue since the respondents assert that they were prepared to accept the medical clearance provided by the applicant’s doctor.

58The non-discriminatory explanation provided by the respondents – namely, that the applicant was unacceptably absent without advising them on three separate occasions – is not supported by the evidence. On two of those occasions, I have found the applicant left a phone message at the main office and a text message with her immediate supervisor letting them know that she would not be in and the reason she would not be in. While it is not disputed that on both those occasions, Cativo did not know about the messages in time to make alternate arrangements, it is my finding that the applicant was able to satisfy her that such messages were left. On the remaining occasion, I have found that the applicant advised both Cativo and Cativo’s supervisor the week before that she had arranged a doctor’s appointment in order to satisfy the respondent’s demand for medical clearance.

59Although the respondents’ counsel suggested in final argument that he regarded it as suspicious that the applicant’s absences were always on a Monday, this explanation was not in the letter of termination, nor did any of the respondents’ witnesses testify that this was a reason for the termination. The applicant was not challenged on cross-examination about the validity of her absences, which were, in any event, supported on two occasions by medical notes.

60When viewed as a whole, the evidence supports the finding that the applicant’s pregnancy was a factor, possibly the only factor, in the organizational respondent’s decision to terminate her employment. I heard no evidence that the individual respondent, Cativo, was responsible for this decision. Indeed, the evidence suggested that the decision was made by Coolman, possibly in conjunction with Hung.

61Cativo appears to have been named in the Application because the applicant alleges that her conduct in the lunchroom constituted harassment. It is not necessary for me to decide whether a single act could constitute harassment since I have not found, on the evidence, that it took place. In all other respects, the evidence supports the inference that the individual respondent was acting in the course of her employment in her dealings with the applicant and did not violate the applicant’s right to be free from discrimination in employment.

remedy

62The applicant requests monetary compensation in the amount of $50,000.00 for the injury to her dignity, feelings and self-respect, as well as $15,000.00 in loss of earnings and interest.

63However, I have no evidence about what, if any, efforts the applicant made to gain employment, whether she was able to find a job after her termination, when that took place and how much she earned. I do not know whether the applicant was eligible for maternity benefits and how long she intended to be off work. Furthermore, I have no information about the psychological impact, if any, that losing her job had on the applicant after she left work on the final day.

64I have concluded that it would be unfair to finally determine the issue of the appropriate remedial award solely on the basis of the information before me. The applicant should have an opportunity to put in relevant evidence and submissions that go to the issue of appropriate remedy, and the respondent should have an opportunity to meaningfully respond and challenge any such submissions or evidence.

65The applicant, therefore, has two weeks from the date of this Decision to file with the Tribunal, and the organizational respondent, documentary evidence and witness statements supporting her claim for damages. The parties will then have 30 days from the receipt of this information to attempt to resolve the issue of remedy, failing which the Tribunal will reconvene to hear evidence and submissions on the appropriate remedial order in this case, including any evidence or submissions the respondent wishes to make with respect to the applicant’s claims.

order

66The Tribunal orders the following:

a. The Application against the personal respondent, Marlene Cativo, is dismissed;

b. Within two weeks of the date of this Decision, the applicant shall file with the Tribunal and the organizational respondent, Aptco Capital Corporation, all documents and a witness statement as to any intended testimony, she has on the issue of remedy;

c. In the event that the applicant files no documents or witness statements with the Tribunal, it shall decide the issue of remedy on the basis of the information before it;

d. Should the applicant file documents and/or witness statements, the parties shall have the opportunity to resolve the issue of remedy between themselves within 30 days of the date of filing;

e. In the event that they are able to resolve this issue within the 30 days, the parties shall file a Form 25 with the Tribunal, failing which the Tribunal will reconvene to hear evidence and submissions on the issue of damages;

f. Should the Tribunal reconvene, the Notice of Hearing will specify the manner in which the hearing on remedy will take place, including when the respondent must file any documents or witness statements it may wish to rely upon.