Kaleem Rehman v. The Regional Municipality of Waterloo, Sharon Schnarr and Don Beitz, 2014 HRTO 875

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaleem Rehman

Applicant

-and-

The Regional Municipality of Waterloo, Sharon Schnarr and Don Beitz

Respondents

-and-

Canadian Union of Public Employees and its Local 1883

Intervenor

DECISION

Adjudicator: Sheri Price

Date: June 13, 2014

Citation: 2014 HRTO 875

Indexed as: Rehman v. Waterloo (Municipality)

APPEARANCES

Kaleem Rehman, Applicant

Self-represented

The Regional Municipality of Waterloo, Sharon Schnarr and Don Beitz, Respondents

Bonnea Channe, Counsel

Canadian Union of Public Employees and its Local 1883, Intervenor

Paul O’Ryan, Counsel

INTRODUCTION

1On March 4, 2013, the applicant filed this Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging that the respondents discriminated against him with respect to employment because of his sex, race, and ethnic origin. In particular, the applicant alleges that the respondents discriminated against him because he is a man in a “female-dominated” workplace and because he is Muslim and/or a member of a visible minority.

2The respondent municipality is the applicant’s employer. The respondent Sharon Schnarr was the applicant’s supervisor during the relevant time frame, and Don Beitz was a manager with the respondent municipality.

3In a Case Assessment Direction in this matter, the Tribunal directed that a summary hearing would be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success. The summary hearing was also to determine the respondents’ request that part of the Application be dismissed on the basis of delay.

4At the summary hearing, the applicant was given an opportunity to explain how he could prove his allegations that the respondents infringed his rights under the Code. The parties were also given an opportunity to make submissions on the delay issue.

5For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

6During the relevant timeframe, the applicant was employed by the respondent municipality as an income support caseworker in the respondent’s Social Services Department.

7The applicant alleges that he took sick leave from work from February 23 to 28, 2012, because he had pneumonia, and returned to work on February 29, 2012, even though he was still unwell.

8The day before the applicant returned to work, on February 28, 2012, the applicant’s supervisor, the personal respondent Sharon Schnarr, sent the applicant an email expressing concern regarding the application’s absenteeism in 2012. The email stated:

Hi Kaleem,

Hope you are feeling better! So far, this year, you’ve been off 9 days sick. This is a concern, as it’s only been 2 months. If you continued with the same amount during the next months you’d be off more than 50 days for the year! I really can’t see that happening, however I need to tell you that the time is a concern. Is there anything I can do to help make things easier? I realize that when you’re sick, you’re sick.

Once you’re back can we touch base and talk just for a few minutes. I’m in Waterloo all day on Wednesday and will be back on Thursday.

9The applicant alleges that he was upset by the above-noted email, because he felt that his supervisor was only concerned about his attendance, not his health. He alleges that he went to tell his supervisor Ms Schnarr that he felt hurt and betrayed by her email on or about March 1, 2012, following his return to work.

10The respondents allege that, during the March 1, 2012 meeting, Ms Schnarr tried to explain to the applicant that it was her role as supervisor to manage the attendance of employees under her supervision, including the applicant. The respondents allege that the applicant would not listen to Ms Schnarr, that he yelled at her and told Ms Schnarr that he could take up to six months off if he wanted to and that there was nothing that she could do to stop him. The respondents allege that the applicant ignored Ms Schnarr’s request that he stop yelling and that he refused to leave her office when told to do so. The respondents allege that Ms Schnarr felt “shaken and intimidated” by her exchange with the applicant and that two other staff members were upset at having overhead the exchange.

11On March 5, 2012, the respondent employer gave the applicant a written warning for what it described as the applicant’s confrontational, unprofessional, and disrespectful behavior during the March 1, 2012 meeting with Ms Schnarr—behavior the employer claimed violated its policies on workplace harassment and interpersonal conduct. Among other things, the warning stated that the applicant yelled at Ms Schnarr during the March 1, 2012 meeting and would not leave Ms Schnarr’s office when instructed to do so.

12For his part, the applicant maintains that it was entirely appropriate for him to go speak to Ms Schnarr about her email following his return to work because her February 28, 2012 email indicated that he should do so. As for his behaviour during the March 1, 2012 meeting, the applicant denies that he yelled at Ms Schnarr or refused to leave her office when asked to do so. The applicant contends that if he was speaking loudly during his meeting with Ms Schnarr, it might have been because his ears were “blocked” due to his illness. The applicant submits that he has a doctor’s note verifying this. The applicant acknowledges that, during the March 1, 2012 conversation, Ms Schnarr told the applicant to come back when he was not angry. The applicant responded that he was not angry, but upset, and the conversation continued from there. The applicant denies that this can be construed as the applicant having refused to leave Ms Schnarr’s office when instructed to do so.

13The applicant alleges that the February 28, 2012 email and the March 5, 2012 written warning constituted discrimination against the applicant, based on his sex, race, and ethnic origin.

14In addition, the applicant alleges that the respondents discriminated against him when Ms Schnarr accused the applicant, during the March 1, 2012 meeting, of taking sick leave to which he was not entitled. The applicant alleges that, during the March 1, 2012 meeting, Ms Schnarr claimed that, during a conversation that had taken place a number of years previously, the applicant had asked why anyone would leave sick days in his or her sick bank, which could only be cashed out at 50 percent of their value upon retirement, when they could take the days off at 100 percent of their value while at work. During the summary hearing, the applicant explained that the conversation in question had occurred “many years ago” and that the context for the conversation was that a supervisor had taken sick leave for a year, immediately before retiring (at 100% value), as opposed to retiring and cashing in his unused sick time (at 50% value). During the conversation, the applicant apparently said or was perceived or alleged by the supervisor to have said something along the lines that it had been “pretty smart” of the supervisor to do this. The applicant alleges that, during the March 1, 2012 meeting, his supervisor tried to “use” this conversation to suggest that the applicant was similarly trying to use up his sick days and that the applicant was not really sick on the days he had been absent.

15The applicant filed a grievance against the March 5, 2012 written warning, pursuant to the collective agreement between the respondent municipality and the intervenor trade union. The applicant submits that the respondent municipality did not respond to the grievance until June 2012, well outside of the time limits specified in the collective agreement. During the summary hearing, the applicant submitted that the respondents’ failure to respond to his grievance within the applicable time limits constituted a further act of discrimination against him by the respondents.

16The applicant also alleges that the respondents discriminated against him on February 12, 2013 when the applicant emailed his supervisor to say that he had to leave work 15 minutes early that day to attend a doctor’s appointment. Although the applicant was apparently permitted to leave early, the applicant alleges that the respondents discriminated against him when his supervisor responded to his email by asking, “…is this urgent?”

17The respondents submit that employees such as the applicant are normally required to give five days’ notice if they need to attend medical appointments during their regularly scheduled hours of work. When an employee seeks to attend a medical appointment during work hours, on less than five days’ notice, the respondents submit that the supervisor will commonly ask whether the appointment is of an urgent nature, as Ms Schnarr did with the applicant on February 12, 2013.

ANALYSIS AND DECISION

Delay

18Section 34(1) of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident, or within one year of the last incident in the series of incidents, to which the Application relates. A person may not apply to the Tribunal more than a year after the incident or the last incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

Allegations regarding events that pre-date the Application by many years, which the applicant seeks to put forward as background

19In the Application that he filed with the Tribunal, the applicant included certain allegations that date back approximately 10 or more years before the Application was filed. These allegations relate to requests for vacation and/or religious leave; the handling of a client complaint; and a job competition. The respondents submit that these allegations ought to be dismissed pursuant to s. 34(1) of the Code on the basis of delay.

20During the summary hearing, the applicant acknowledged that the above-noted allegations were untimely. The applicant clarified that he was not seeking to put these allegations forward as incidents of discrimination upon which his Application is based. Nor was he attempting to obtain any remedy in respect of these alleged incidents. Rather, the applicant explained that he merely sought to put these allegations forward as background to the Application.

21Among other things, the respondents submit that the applicant should not be permitted to rely upon the above-noted incidents as background because they are not relevant to or probative of any of the issues to be determined in this case. In addition, the respondents submit that they cannot even respond to the allegations because of a lack of particulars and because the incidents in question occurred so long ago. For example, the incident regarding the request for vacation leave allegedly occurred in 1998, approximately 15 years before the Application was filed.

22Given that the incidents that pre-date the Application by a number of years are not put forward by the applicant as alleged Code infringements upon which the Application is based, and in respect of which the applicant seeks a remedy, they are not incidents “to which the Application relates” within the meaning of s. 34(1) of the Code. It is therefore neither necessary nor appropriate to determine whether the allegations in question ought to be dismissed on the basis of delay.

23In the normal course, the extent to which the applicant might be permitted to adduce evidence about such allegations at the hearing of the Application by way of “background” would be an evidentiary matter for the hearing adjudicator to determine, based on the relevance of the proposed evidence to the issues to be determined in the Application. That said, as it turns out, the admissibility of the applicant’s proposed background evidence at the hearing of the Application is a moot point. This is because I have determined, for the reasons set out below, that the Application should be dismissed at this stage because it has no reasonable prospect of success.

Allegations from February 28 to March 1, 2012

24As noted above, the Application contains allegations that the respondents infringed the applicant’s rights under the Code on February 28, March 1, and March 5, 2012. There is also an allegation that the respondents discriminated against the applicant by failing to respond to the applicant’s grievance until June 2012 and also when the applicant’s supervisor emailed the applicant on February 12, 2013.

25The Application was filed on March 4, 2013. Accordingly, the respondents acknowledge that the allegations from March 5, 2012 onwards are timely. However, the respondents submit that the allegations that the respondents discriminated against the applicant on February 28 and March 1, 2012 occurred more than one year before the Application was filed and are therefore untimely.

26The applicant submits that there was no delay in filing his Application, because the allegations of February 28, 2012 and March 1, 2012 were part of a “series of incidents” that culminated within the one-year period before the Application was filed. Specifically, the applicant submits that Ms Schnarr’s February 28, 2012 email about his absenteeism, the follow-up meeting on March 1, 2012, and the March 5, 2012 warning the applicant received in respect of his alleged conduct during the March 1, 2012 meeting were all part of a “series of incidents”. Since the Application was filed within one year of the last incident in this “series of incidents”, the applicant submits that the February 28 and March 1, 2012 allegations were raised in a timely manner, pursuant to s. 34(1) of the Code.

27Having considered the submissions of the parties, I am satisfied that the February 28, March 1, and March 5, 2012 incidents were all part of a chain of events and therefore constitute a “series of incidents” within the meaning of s.34(1) of the Code. Specifically, the events from February 28 to March 5, 2012 all relate to the supervisor’s alleged reaction to the applicant’s February 2012 sick leave and the applicant’s alleged response to the supervisor’s reaction. Since the March 4, 2013 Application was filed within one year of the last incident within this “series of incidents”, the February 28 and March 1, 2012 allegations are timely.

28I now turn to the issue whether the applicant has any reasonable prospect of proving that the incidents in question constituted discrimination against the applicant because of his sex, race and/or ethnic origin.

No Reasonable Prospect of Success

29As noted above, the applicant alleges that the respondents discriminated against him because of his sex, race and ethnic origin in the following ways:

1. When the applicant’s supervisor sent the applicant the February 28, 2012 email expressing concern about his attendance;

2. When the applicant’s supervisor allegedly accused the applicant, during the March 1, 2012 meeting, of taking sick leave to which he was not entitled;

3. When the respondent employer gave the applicant the March 5, 2012 written warning with respect to his conduct during the March 1, 2012 meeting;

4. By failing to adhere to the time limits in the collective agreement for responding to the applicant’s grievance against the March 5, 2012 warning; and

5. When the applicant’s supervisor sent the applicant an email on February 12, 2013, asking if the applicant had an urgent need to leave work 15 minutes early for a medical appointment.

30The Tribunal does not have the power to remedy unfairness or mistreatment, which is not based on a prohibited ground in the Code. The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination with respect to employment on the basis of the grounds set out in the Code. In order to establish discrimination within the meaning of the Code, the applicant would have to prove that the respondents treated him in a distinct and disadvantageous manner, because of a prohibited ground under the Code, in this case, the applicant’s sex, race and/or ethnic origin.

31In my view, for the reasons set out below, the applicant has no reasonable prospect of doing this.

February 28, 2012 email

32As noted above, the applicant contends that the February 28, 2012 email in which his supervisor expressed concern about the applicant’s attendance was discriminatory. Specifically, the applicant claims that, by sending him the February 28, 2012 email and requiring him to meet with her to discuss his attendance, Ms Schnarr singled the applicant out as compared to his white female coworkers. In this regard, the applicant alleges that Ms Schnarr never emailed or spoke to two “Caucasian” female members of the applicant’s team, who were also supervised by Ms Schnarr, about their attendance, even though one of them took more days off sick than the applicant did, also due to pneumonia. The applicant submits that the reason his supervisor emailed him about his absences was because she did not believe that the applicant was really sick, and that the reason for that belief was because the applicant is a man, Muslim and/or a member of a visible minority in the workplace.

33If the applicant were able to lead evidence that the applicant’s supervisor emailed him about his absences, but did not email or speak to the applicant’s coworkers about their similar absences, this might establish that the applicant was treated differently than his coworkers. (It should be noted that the respondents dispute this allegation. They maintain that the supervisor did, in fact, speak to both of the coworkers in question.) However, in order to establish discrimination within the meaning of the Code, the applicant would have to establish that the respondents treated him not only differently, but also disadvantageously, as compared to his coworkers. This is because disadvantage is an essential element of discrimination. Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 90.

34In my view, the applicant has no reasonable prospect of proving that the February 28, 2012 email was discriminatory because he has no reasonable prospect of establishing that the email disadvantaged him, particularly when the email is read in its entirety. As I read it, the tone of the supervisor’s email is supportive of the applicant. In particular, I note that in the email in question the applicant’s supervisor expresses her hope that the applicant is feeling better, invites the applicant to tell her if there is anything she can do to “make things easier” for him, and accepts and acknowledges that “if [the applicant is] sick, then [he is] sick”. In addition, the supervisor expresses optimism that the applicant’s attendance will not actually turn out to be a problem (“I really can’t see that happening.”) Given the tone and content of the email in question, I cannot see how the Tribunal could find that the February 28, 2012 email constituted disadvantageous treatment of the applicant, such that the email could then be found to be discriminatory.

35I can certainly understand that the applicant would not have welcomed his supervisor’s expression of concern about his attendance. However, I cannot agree with the applicant that his supervisor’s February 28, 2012 email was “harassing”. In general, the Code does not prohibit an employer from counselling employees about their attendance where the intention is to assist the employee in maintaining regular attendance and where the employer is otherwise fulfilling its duty to accommodate disability-related absences, in accordance with the Code. For example, in Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568, the Tribunal found that the applicant had no reasonable prospect of proving that the placement of the applicant in her employer’s attendance management program, based on the applicant’s disability-related absences, was discriminatory. The attendance management program required the applicant to meet with her employer to discuss her attendance, with a view to assisting the applicant to reduce her absences and to maintain regular attendance. It was not disciplinary. On that basis, the Tribunal found that the applicant had not been disadvantaged by her placement in the program and therefore had no reasonable prospect of proving that she had been discriminated against.

36Similarly, in this case, as set out above, assuming without finding that the applicant could establish that some of his coworkers did not receive an email or other communication from the supervisor about their attendance, the applicant still has no reasonable prospect of proving that the February 28, 2012 email was discriminatory because he has no reasonable prospect of establishing that the email created any disadvantage for him. Accordingly, this aspect of the Application has no reasonable prospect of success and it is dismissed.

Accusation that applicant trying to use up his sick bank

37I find that the applicant has no reasonable prospect of proving that his supervisor discriminated against him because of his sex, race and/or ethnic origin when she allegedly accused the applicant of taking sick days to which he was not entitled in an attempt to use up his sick bank.

38The applicant contends that the supervisor’s accusation, during the March 1, 2012 meeting, that the applicant was attempting to use up his sick bank (at 100% value) reflected her belief that the applicant was not genuinely sick, and that belief was linked to his sex, race and/or ethnic origin. However, the applicant does not allege any facts that if true could lead the Tribunal to find that the applicant’s supervisor’s suspicions were based in whole or in part on the applicant’s sex, race, or place of origin. Indeed, it might be reasonable to infer that the supervisor’s suspicions were based on her perception of what the applicant said during the conversation she and the applicant had about another employee using up his sick bank before retiring. I say this because, according to the applicant, the supervisor brought this conversation up on March 1, 2012 and tried to “use” it to suggest that the applicant, like the retired employee, was trying to use up his sick bank. Whether or not that is the case, for the purposes of the present analysis, the important thing is that there are no facts alleged in this case that, if true, would provide the Tribunal with a sufficient basis for finding that the supervisor believed or alleged that the applicant was taking sick leave to which he was not entitled because he is a man, Muslim and/or a member of a visible minority in the workplace.

39For the above reasons, I find that the applicant’s allegation that his supervisor accused him of taking sick leave to which he was not entitled because of his sex, race, and/or place of origin has no reasonable prospect of success. It is dismissed accordingly.

March 5, 2012 written warning

40As for the March 5, 2012 written warning, the applicant submits that disciplining him for merely expressing his hurt feelings during the March 1, 2012 meeting, after he was invited, in his supervisor’s February 28, 2012 email, to come and speak with her, was excessive and unfair. That may be. However, as noted above, the Tribunal does not have jurisdiction to address the March 5, 2012 disciplinary warning on the basis that it was excessive or undeserved. The Tribunal can only deal with the written warning to the extent that the applicant has some reasonable prospect of proving that it was linked, in whole or in part, to a prohibited ground under the Code. In the circumstances of this case, the factual allegations of the applicant, if proved, might establish that the March 5, 2012 warning was unfair and/or an overreaction. However, the applicant has not alleged facts that, if true, could lead the Tribunal to find that the alleged unfair discipline was due in whole or in part to the applicant’s sex, race and/or ethnic origin. Thus, the applicant has no reasonable prospect of proving that the March 5, 2012 warning infringed his rights under the Code. The allegation is dismissed accordingly.

February 12, 2013 email

41Nor am I persuaded that the applicant has any reasonable prospect of proving that the February 12, 2013 email questioning the applicant’s need to leave work early for a medical appointment that day constituted discriminatory treatment based on the applicant’s sex, race and/or ethnic origin.

42First, the applicant has no reasonable prospect of proving that the February 12, 2013 email was discriminatory because he has no reasonable prospect of proving that the email constituted disadvantageous treatment, which as noted above is an essential element of discrimination. In my view, merely asking the applicant if his need to be absent during his regular hours of work was urgent cannot be reasonably construed as having disadvantaged the applicant in any way.

43In addition, the applicant has no reasonable prospect of proving that the supervisor’s February 12, 2013 email was based, in whole or in part, on the applicant’s sex, race and/or ethnic origin.

44The applicant alleges that “other people” were permitted to leave work two or three hours early “no questions asked”. The applicant has not identified any of these “other” people or explained how he could establish in evidence that they were permitted to leave work early without any sort of inquiry by the respondents. Leaving that aside, assuming that the applicant could establish that “others” were permitted to leave early, without any sort of questioning, this might be used to establish that questioning the applicant was unfair. However, the applicant has not alleged any facts that, if true, could lead the Tribunal to conclude that such unfair treatment was based, in whole or in part, on the fact that the applicant is a man, Muslim and/or a member of a visible minority. In order for a discrimination claim to have any reasonable prospect of success, there must be a basis beyond mere speculation or bald assertions that the unfair treatment was because of one of the grounds alleged in the Code: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17. In this case, the applicant’s factual allegation that he was questioned about his need to leave early, whereas unnamed others were not, even if true, does not provide a basis for a finding that the respondents discriminated against the applicant because of his sex, race, or place of origin. The allegation that the February 12, 2013 email was linked to these prohibited grounds is more in the nature of speculation and assertion, and, as such, is insufficient to ground a claim of discrimination under the Code.

45For the above reasons, I find that the allegation that the February 12, 2013 email was discriminatory has no reasonable prospect of success. It is dismissed accordingly.

Alleged failure to adhere to collective agreement time limits

46Finally, I am not persuaded that the applicant has any reasonable prospect of proving that the respondents’ alleged failure to adhere to time limits in the collective agreement for responding to his March 2012 grievance infringed his rights under the Code. As noted above, the Tribunal has jurisdiction to deal with alleged infringements of the Code. It does not have jurisdiction to deal with conduct on the basis that it constitutes an alleged breach of a collective agreement. Moreover, there are no facts alleged in this case that could lead the Tribunal to find that the timing of the respondents’ response to the applicant’s grievance, or anything else to do with the handling of the applicant’s grievance by the respondents, was linked to the applicant’s sex, race and/or ethnic origin. This allegation therefore has no reasonable prospect of success. It is dismissed accordingly.

47For the above reasons, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.