Mendosa v. SIR Corp., 2015 HRTO 927

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Mendosa

Applicant

-and-

SIR Corp. o/a Jack Astor’s Dundas Square

Respondent

DECISION

Adjudicator: David Muir

Date: July 14, 2015

Citation: 2015 HRTO 927

Indexed As: Mendosa v. SIR Corp.

APPEARANCES

Joseph Mendoza, Applicant

Marshall Reinhart, Counsel

SIR Corp o/a Jack Astor’s Dundas Square, Respondent

Civity Gauley, Counsel

1In his Application the applicant alleged that he experienced discrimination in employment because of ancestry, colour, ethnic origin, family status, place of origin, race and record of offences, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

The Dispute

2The applicant is a cook. He has been employed by respondent in three locations beginning in 2004. He was terminated three times. In the first two instances he was fired for performance issues – lateness being a notable issue for him. The applicant was re-hired by the respondent in December 2009 and remained employed until March 18, 2013, when he was terminated after a verbal altercation with a manager.

3The respondent is a holding company with operates a number of differently branded restaurants in Ontario and across the country.

4The particulars of the applicant’s general allegation as set out in the Application are as follows:

a. That he was always promised promotions but they never happened;

b. The he was solely responsible for training chefs who, once trained, became managers instead of him;

c. That he was told by a manager (Nick) to go back to Africa to work with the other monkeys on more than one occasion; and

d. That he was dismissed from his employment for discriminatory reasons after a verbal altercation in the workplace.

5A hearing in respect of this Application was held on May 13 and 14, 2015, in Toronto.

6I heard from the applicant and Mikal Panton, who both testified on behalf of the applicant. I also heard from four witnesses for the respondent, Douglas Wood, Brad Knutson, Jeff Wrenshall and Nick Campanaro.

7For the reasons that follow the Application is dismissed because there is insufficient evidence to establish that the applicant experienced any differential treatment on any of the cited grounds. Even if I had concluded that there was sufficient evidence to establish a prima facie case of discrimination, I find that the respondent provided reasonable non-discriminatory explanations for its alleged actions.

8At the outset of the hearing the applicant withdrew the allegation that he experienced discrimination on the basis of family status or record of offences. I also ruled over the objection of the respondent that the applicant was entitled to lead evidence of racist discourse in the workplace by management personnel despite the applicant’s failure to plead this kind of allegation in any meaningful way in his Application or Reply. I allowed the applicant to lead this evidence, despite the absence of any particulars, as background evidence in support of the allegations made in the Application as set out above.

9I did not allow the applicant to lead evidence of allegedly racist discourse by his fellow employees in the absence of any claim by the applicant that he had complained to his employer about such behaviour. As the evidence later revealed the applicant repeatedly stated that he never complained to anyone in management about the alleged behaviour of his work colleagues.

10The applicant was hired at the Dundas Square Jack Astor’s (the store) location in December 2009 after being terminated out of the Front Street location in 2008. He was hired as a line cook to work the fryer station, which the applicant testified was a demanding position and one he was particularly good at. The applicant was terminated on March 18, 2013, after a verbal altercation with a manager of the store, Nick Campanaro.

11The resolution of this dispute turns to some degree on my assessment of the credibility of the various witnesses. For the reasons that follow I find that I must prefer the evidence presented by the respondent over that of the applicant; however, I would note that in respect of the allegedly discriminatory termination it would be difficult to conclude, based on the applicant’s evidence alone, that there was not a rational non-discriminatory explanation for the termination of the applicant’s employment.

12The applicant’s evidence was very general and lacking in particularity. For example, he alleged that he was often the subject of racializing discourse in the form of jokes and comments etc. directed at him about his skin colour and place of origin, but provided no specific details. Based on his evidence it would be very difficult to be sure what he asserts was said to him. Similarly it would be difficult to say who said the things complained of or when these incidents were said to have occurred.

13The most specific the applicant’s evidence got about this discourse is set out here:

a. That Trevor Brodie said AIDS came from Africa;

b. That Trevor Brodie made dirty jokes about Africa, if there were hungry kids from Somalia on TV the day before, he would make a joke about it;

c. That George, a manager, referred to Africa as the dark continent and made jokes about food being thrown in the garbage; and

d. That Nick Campanaro asked the applicant how many snakes he had to kill to get his (snake skin) shoes.

14I note that Trevor Brodie left the store in 2012.

15The applicant’s evidence was more often than not couched in broad sweeping statements about his experience and that of other employees but he generally provided no facts to support these assertions. For example, he asserted that no black person has ever been promoted by the respondent, or if such a person was promoted it was only as a precursor to their being fired. He then testified that no blacks but many Caucasians were promoted from the kitchen area to management but offered no facts to support any of these assertions. The applicant also testified that he never complained about any of the racist treatment he observed because people who complain get fired – when asked by his counsel what basis he had for that claim his response was merely a reiteration of the bald assertion but he identified no one who had complained and as a result had been fired, as he alleged. The applicant also testified that the only black people employed by the respondent were line cooks and they remained line cooks. No facts were led to support this claim and it appears that it is not accurate.

16The applicant appeared to be prepared to say anything that occurred to him to paint the respondent in a negative light. For example, as indicated above he testified that no black person had ever been promoted by the respondent, but if it ever happened the promotion was a precursor to their being fired. He then stated that this had never happened, but then said that those who have been promoted are scared they are going to get fired. He also stated that all of the dishwashers at the store were black but later testified that one was Hispanic.

17Contrary to the evidence of the applicant each of the respondent’s witnesses were able to identify a number of black and other racialized employees who had been promoted to management positions in multiple locations operated by the respondent, including one or more of the stores in which the applicant had been employed.

18I observed at the hearing that there were significant differences between the allegations as contained in the Application from the evidence at the hearing. The most curious example of this is the assertion made twice in the Application that he was terminated as a direct result of a Highway Traffic Act offence. This allegation was not pursued at the hearing but neither was it explained.

19More significantly the applicant’s gave inconsistent and on occasion somewhat contradictory evidence on important points. In his examination-in–chief, the applicant testified that he was late on “numerous” occasions during his first period of employment with the respondent and that he was expecting to be terminated, but then testified that he was terminated for “no reason really”. He also testified that he never complained about his treatment but later testified that he did make a complaint about the treatment of the paying out of tips at the store and when he got no satisfaction there, elevated the complaint to headquarters management.

20Most importantly, his evidence with respect to the verbal altercation which lead to his dismissal was in equal parts vague and sweeping and contradictory on some key points.

21In his revised witness statement filed on May 5, 2015, the applicant described the incident as follows:

On March 17, 2013, at the end of his shift around 1:30/1:40 a.m., Mr. Mendosa asked the dishwasher if he could take out the mats to be washed. Mr. Campanaro overheard the conversation and approached the two men yelling, "Do not listen to Joseph, leave the mats on the floor, he is nobody." Mr. Mendosa started walking away while Mr. Campanaro continued yelling and saying, "I am the assistant general manager, you do whatever the fuck I tell you to do, if you don't like it, me, you and Brad will sit down tomorrow and talk."

22In the Application the incident is described as follows:

The applicant had directed one of the cleaners to remover some mats for cleaning. All of a sudden, Nick the Manager came from nowhere and started yelling causing (sic) the applicant to mind his business and not to be directing others to do things. The Manager told the cleaner while tilling and yelling and causing (sic) that they should not listen to Mr. anybody who should be back in Africa with the other monkeys.

23At the hearing, in examination-in-chief the applicant testified that it was late in the shift, about 1:30 to 1:40 a.m. He told the dishwasher to take up the mats on the floor and run them through the dishwasher – a task performed at closing. The applicant testified that Mr. Campanaro overheard the conversation and came into the kitchen. He initially testified that Mr. Campanaro was yelling from the outset but quickly changed it to say that he was speaking nicely and he (the applicant) turned and walked away. The applicant then repeated that Mr. Campanaro was talking nicely and said to the dishwasher don’t pick up the mats from the floor and made some reference to it being a safety issue. He testified that Mr. Campanaro said, “don’t listen to Joseph he is nobody.” The applicant testified that the only thing he said was, “I can’t hear you, I can’t hear you” in response to Mr. Campanaro’s yelling at him.

24There was no mention of the monkey comment during the applicant’s examination-in-chief, consistent with its absence from the description of this incident in his witness statements.

25In cross-examination, the applicant amplified in a substantial way his description of the incident. He testified that Nick was yelling at him using all sorts of foul language, “he was insulting me and I am not going to listen to him, I was just doing my job”. The applicant also stated that that Mr. Campanaro was “the front of house manager, they never get involved in the back of the house and they never come back unless they want something.” The applicant testified that he was the real supervisor in the kitchen and that this night for some reason Mr. Campanaro came back to “start something”. He also testified that Mr. Campanaro said “I am your manager you need to listen to me”. Despite this evidence the applicant conceded that Mr. Campanaro was managing the store on the night in question.

26In cross-examination, he repeated a couple of times that he had never had any issues with Nick other than the jokes about his snake skin shoes. When asked why he believed that Nick was out to get him, the applicant repeated that he did not have any personal issues with him but began to believe that Nick was racist when he learned several weeks later that the respondent was taking the position that he had uttered a threat during the altercation – that is, that Nick had lied about what had happened between them that night.

27It was only in cross after repeatedly saying he had no problems with Nick and never crossing paths with him that the applicant seemed to recall that Mr. Campanaro had made other jokes and comments about him. The applicant gave no particulars of these alleged jokes and comments except to finally recall that Mr. Campanaro had referred to him as a monkey at some point during the verbal altercation on March 17/18.

28The applicant also changed his evidence with respect to his disciplinary record. In examination-in-chief and initially in cross-examination, he seemed to acknowledge that he had been aware of some of the disciplinary notes made with respect to him over the years. As noted above he acknowledged in his evidence in chief that he had been late “numerous” times. However, when his cross-examination resumed on the second day, he appeared to be saying that he did not recall that any performance issues had been raised with him. He went back on forth on this issue, acknowledging and then denying that an incident had been raised with him in the past. The only consistent element of this evidence was the applicant’s belief that because he had not signed any of these performance notes, they were not valid.

29On the other hand, the respondent’s witnesses gave their evidence in a straightforward way. They each acknowledged when they could not remember things that perhaps they should have and gave evidence at times that was not necessarily going to assist their employer’s position. Their versions of the critical events around the verbal altercation and its aftermath were not entirely consistent suggesting at least that their evidence had not been coordinated. This was most notable with respect to the reasons for the applicant’s termination, which differed as between the two individuals who made the decision to end the applicant’s employment.

30The applicant’s only other witness, Mr. Panton, was employed for a short period of time by the respondent. He was no longer employed by the respondent in March 2013 and had been gone for many months at that point. His evidence was confined to things he heard being said about the applicant but never in the applicant’s presence. He witnessed no mistreatment or differential treatment of the applicant. Given his very short tenure with the respondent he was unable to comment reliably on the respondent’s promotion or not of racialized persons to management positions. As such his evidence had little bearing on the issues in dispute. I have considered his evidence as background to the alleged differential treatment of the applicant as outlined above.

31For these reasons I have preferred the evidence of the respondent over that of the applicant and the result of this case largely, but not entirely, turns on that conclusion.

Failure to Promote

32The respondent argued that the applicant had failed to lead a prima facie case of discrimination. It argued that the applicant never requested or applied for a promotion. The respondent also relied on the applicant’s significant record of performance issues, in particular recurring instances of arriving to work late, which at times, the applicant acknowledged.

33The respondent argued that to establish a prima facie case of discrimination in promotions, the applicant must establish that he had the requisite qualifications; that he applied for a promotion; and that someone who was no better qualified for the position was hired.

34I agree with the respondent on this issue. There is absolutely no evidence to support this allegation. The applicant’s only evidence was his repeated assertions about who was promoted and why. The applicant conceded that he knew nothing of the personal circumstances of the people that were promoted during his tenure. In response to the evidence of a number of racialized employees in management positions in the store and other locations, the applicant’s only response was that the respondent’s witnesses were lying.

35The applicant also alleges that he was promised a promotion. But his evidence fell far short of that. At the hearing he testified that when he complained that he would be earning less than he had in the past because of the way tips were treated at the store, he was told by his managers that if he proved himself he would move up in the company.

36The applicant also never sought promotion. He testified that he never applied for a promotion and pointed to no specific promotion that he should have been given because the incumbent was no more qualified than he.

37This allegation is no more than a manifestation of the applicant’s clear frustration at the disconnect between his perception of his abilities and how he was apparently perceived by his superiors.

Trained others who were promoted over him

38There is no evidence to support this allegation. The evidence is clear and despite the bald assertion made in the Application, the applicant conceded that all managers are trained in every position in the store and accordingly he, along with everyone else employed in the kitchen, would have trained all managers-in-training hired into the store while he was there. Accordingly, he trained many individuals who were promoted. The applicant also conceded that he knew nothing about the manager- in-training program and never sought to be considered for it.

39In my view there is no evidentiary basis for this allegation and therefore no need to consider the respondent’s explanation. That is not to say that there is no basis for the applicant’s belief but more than the mere assertion of it is required to establish such a claim.

The applicant’s termination and the monkey comment

40As indicated in Case Assessment Directions issued previously in this case, the Application as drafted primarily concerned an alleged discriminatory termination after an argument between the applicant and the manager on duty, during which it was alleged in the Application that the applicant was told to go to Africa and work with the monkeys there.

41The broad outlines of what occurred are not controversial. It was near closing. Kitchen staff were getting ready to close but the restaurant was still open. In the kitchen area there are mats on the floor which are intended to prevent slip and fall accidents. The respondent asserts, and it is not denied by the applicant, that these mats should be on the floor as long as the store is open and kitchen and serving staff are walking in areas where slip and fall accidents might occur. It is also likely true that these mats are often taken up as soon as possible because kitchen staff want to get off work.

42It is also agreed that the mats are taken up at or near closing and run through the dishwasher. It is agreed as well that the applicant had directed one of the dishwashers to take up the mats, run them through the dishwasher and hang them to dry. It is agreed that on this night this was being done between 1:30 and 1:40 a.m. The store closes at 2:00 a.m.

43It is also apparently agreed that Nick Campanaro, the Manager on duty, came to the kitchen and quietly spoke to the dishwasher and the applicant about the mats and directed that they put them back on the floor. The applicant appears to agree that Mr. Campanaro indicated that there was a health and safety concern.

44The applicant’s version of this incident is set out above and will not be repeated again.

45Mr. Campanaro testified that it was late in the shift. He testified that he was approached by a server, B.H., who complained that the mats in the kitchen had been taken up. He testified he went to the kitchen and spoke to the dishwasher, M.H., who told him that the applicant had instructed him to do it. According to Mr. Campanaro, the applicant then appeared and challenged him saying, “you have a problem”. Mr. Campanaro testified that he said, not particularly other than the mats. He testified that he asked that they be returned to the floor. Mr. Campanaro testified that the applicant “sort of ignored” the request and asked Mr. Campanaro who he thought he was. Mr. Campanaro testified that the applicant said that he did not work for him (Campanaro) and does not have to listen to Mr. Campanaro. Mr. Campanaro testified that he responded “yes, you do, I am in charge.” He testified that the applicant told him to “fuck off”, and that Mr. Campanaro should not worry as he (the applicant) had it under control.

46Mr. Campanaro testified that the conversation escalated from there. He acknowledges raising his voice and he perceived that the applicant was frustrated. He testified that he heard the applicant say that he needed to be careful, have to watch your back, you don’t know who you are dealing with. The argument continued. Mr. Campanaro was querying what the applicant had meant by his comments without much response. Eventually the mats were returned to the floor and Mr. Campanaro testified that he returned to his office to document the occurrence.

47I prefer the evidence of Mr. Campanaro. In addition to my conclusions set out above about the credibility of the witnesses I heard from, some further comment is warranted here as this is what the Application was really about. In my view the applicant’s description of the incident was incoherent and it had no particular beginning or end. As indicated its description changed over time, even during the hearing and the more the applicant said about this incident the more it tended to confirm elements of the respondent’s version. Mr. Campanaro on the other hand gave his evidence in a straightforward and apparently forthright way. He provided a coherent narration of what happened and when – I understand how the incident unfolded on his version of it. This is not true of the applicant’s telling of the story.

48Mr. Campanaro’s version also makes sense and he attributes remarks to the applicant that were consistent with the applicant’s view of the role of front of house management in the kitchen – that they have none, according to the applicant, a view he expressed frequently during the course of the hearing.

49Mr. Campanaro testified that he reported the incident to his management, Brad Knutson and Jeff Wrenshall. He and Mr. Knutson met with the applicant the following day. It appeared to them both that the applicant accepted no responsibility for what had happened the night before. It is not clear whether the alleged threat was discussed with the applicant directly or not at the time. Mr. Campanaro testified that he apologized for raising his voice. The applicant did not apologize because, as he testified, he felt that he had done nothing wrong. The applicant testified that he got the impression that had he apologized he would not have lost his job.

50Brad Knutson testified that he recommended to Mr. Wrenshall that the applicant be terminated. Mr. Wrenshall testified that he accepted the recommendation and the decision was communicated to the applicant by Mr. Campanaro and Mr. Knutson.

51There is no direct evidence that a factor in the decision to dismiss the applicant from his employment was his race or place of origin.

52The thrust of the applicant’s theory of the case is that there was no progressive discipline and no prior warning of his impending termination. This is not a wrongful dismissal so the question is not whether there was just cause for the dismissal but whether a factor in the decision was a prohibited ground of discrimination. In the absence of any direct evidence of discrimination in the decision to terminate the applicant’s employment, it fell to the applicant to show that the circumstances surrounding the termination were such that an inference might be drawn that discriminatory factors were at play. The evidence with respect to the decision to terminate falls far short of that. As previously indicated, based on the applicant’s evidence considered in isolation from that of the respondent’s witnesses, the applicant’s dismissal might have been justified.

53There are two issues however which require consideration. First is the issue of whether or not as alleged in the Application, Mr. Campanaro referred to the applicant as a monkey in the course of their altercation such that an inference might be drawn that race and place or origin etc. were factors in the decision to terminate his employment.

54As I have already indicated I prefer the evidence of the respondent’s witnesses, including that of Mr. Campanaro who gave his evidence in a straightforward and forthright way. Mr. Campanaro denied ever making such a comment or making such a comment that night. I find it particularly troubling that the monkey comment is not included in the narration of this incident in the applicant’s witness statements or more importantly in his examination-in-chief despite the efforts of his representative to have him recount as much as he could of his relationship with Mr. Campanaro. In my view, it is more likely than not that this comment was not made by Mr. Campanaro on the night in question or at any other time.

55As such there is nothing in the circumstances surrounding the events of March 17/18, 2013 which would support the inference that any of the grounds cited were a factor in the decision to terminate the applicant.

56The applicant also relies on what he described as an atmosphere of overt racist behaviour in this workplace, but as discussed above the evidence falls far short of establishing that. It is telling that the applicant’s only clearly articulated example of allegedly racist discourse was his evidence that Mr. Campanaro made a joke about the number of snakes he had to kill for his snake skin shoes. Mr. Campanaro denies making any comments about the applicant’s shoes but even if these things were said I am not sure that they would be considered discriminatory on their own. It would be one thing if the jokes were made and the applicant took offence, asked that it stop, and it did not. But the applicant never complained about this alleged behaviour. In any event I am unable to infer from this one allegation that a factor in a decision made by other individuals was influenced by the applicant’s race and place of origin, or any of the other grounds cited by the applicant.

57The other issue to consider was the surprising difference in the evidence of Mr. Wrenshall and Mr. Knutson about the reason for the applicant’s dismissal. As indicated above, the respondent’s justification for the applicant’s dismissal both before me and in an Employment Standards Act proceeding was that the applicant had made a threat against Mr. Campanaro.

58At the hearing, Mr. Campanaro confirmed that he believed that he heard a threat uttered by the applicant. He testified that he relayed the threat to his manager, Brad Knutson, who relayed it to Jeff Wrenshall, General Manager. Mr. Wrenshall testified that for him the threat was an important factor in the decision to terminate. It was also clear that the effective decision to terminate the applicant had been made by Mr. Knutson, who was called by the respondent at my suggestion largely for the reason that Mr. Wrenshall’s evidence suggested that that the effective decision was made by Mr. Knutson. When Mr. Knutson testified about the reasons for the termination he did not initially mention the threat. When asked about this by myself and counsel for the applicant, he acknowledged that he had heard about the threat but for him this was not an important factor in the decision.

59The applicant relied on this disconnect between the respondent’s formal position in this proceeding and the evidence to argue that a factor must have been the applicant’s personal characteristics. I do not agree. It seems to me that despite the confusion in the respondent’s position, there is no reason to dispute Mr. Knutson’s evidence about the reasons for the decision which were essentially that the applicant had been insubordinate and refused to take responsibility for that. The fact that the individual who endorsed the decision had different reasons for it does not detract from the reasonableness of the decision; to put it more directly – it does not lead to the inference, given the totality of the evidence before me, that a factor in the decision to terminate his employment were the applicant’s personal characteristics.

60The applicant made arguments about the effect of a determination under the Employment Standards Act, 2000 that the applicant was entitled to termination and severance pay and accordingly the applicant’s termination was improper. The applicant submitted that for the Employment Standards Officer (“ESO”) to conclude that the applicant was entitled to termination and severance pay there must have been a determination that the alleged threat was not made. On this point I agree with the respondent. The ESO concluded that the applicant was entitled to termination and severance pay because while he had been guilty of wilful misconduct but his misbehaviour had been condoned by the respondent. Whether this conclusion was correct or not is not for me to decide but the more reasonable inference to draw would be that that ESO believed that the applicant had been guilty of some level of workplace misconduct.

61The applicant made other arguments about the human rights training or lack thereof of staff including the applicant. The applicant’s evidence was similarly difficult to follow on this point but there were also issues about the respondent’s recordkeeping in this regard. It may be that the applicant did not have the benefit of the usual orientation program but it is also clear from the evidence that the respondent’s witnesses were generally conversant with the respondent’s anti-discrimination policies. In any event there are no allegations in the Application that the respondent’s human rights training or policies were deficient.

62For all of these reasons the Application is dismissed.