Gonzalez v. Cudley Corners Child Care Centre Vaughan Ltd., 2016 HRTO 900

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gina Gonzalez Applicant

-and-

Cudley Corners Child Care Centre Vaughan Ltd. Respondent

DECISION

Adjudicator: Naomi Overend Date: July 8, 2016 Citation: 2016 HRTO 900 Indexed as: Gonzalez v. Cudley Corners Child Care Centre Vaughan Ltd.

APPEARANCES

Gina Gonzalez, Applicant Self-represented

Cudley Corner Child Care Centre Vaughan Ltd., Respondent Andrew Pinto, Counsel

Introduction

1Gina Gonzalez, the applicant, worked for the respondent daycare centre for a six-month period from September 2013 to March 2014. During that period, she alleges she developed a painful condition in her right hand, wrist and shoulder, which was exacerbated by the duties she performed in the respondent’s infant room. She further alleges that her requests for assistance with the heavier of the tasks and time off work to obtain medical treatment were ignored and/or denied. The respondent denies this, asserting that the applicant did not advise it of her need for accommodation.

2On March 17, 2014, the applicant’s employment was terminated. The applicant asserts that this was because she had taken the previous week off work on the advice of her doctor. The respondent alleges that the applicant resigned her employment 11 days earlier and that it terminated her employment when it appeared that she was resiling from that resignation.

3The applicant filed this Application alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

summary of the evidence

Background

4The respondent is a daycare centre in Vaughan. Its owners operate five similar facilities in the GTA area. When the respondent first opened its doors in May 2013, only four children were registered, but it grew substantially thereafter. In September 2013, when she was hired as a teacher’s assistant, the applicant was the only full-time staff person in the infant room. She was assisted by Manpreet Bhougal, the daycare supervisor (“supervisor”). In November, another staff was hired to assist her, and by the time she left, there were two other staff members in the room with her.

5The applicant was critical of the manner in which the daycare was run. Her pleadings and testimony contain allegations about the lack of qualified personnel, the treatment of the children, the false communications to the parents and the cooking smells coming from the staff lunches. However, these allegations are not germane to the issue before me – namely, whether the applicant was fired because she had a disability – and I offer no opinion on them.

The Applicant’s Disability

6The applicant testified that the repetitive and heavy lifting she was required to do working in the infant room resulted in a disability in her right hand, wrist and shoulder. The applicant testified that she was responsible for the care of four infants when she first started in September. In mid-November she learned that were more children coming to the infant room. Another staff person was hired to assist her, but this person did not start right away, having booked a three-week holiday.

7The applicant testified that the pain started as very small in December, and she thought nothing of it. As time passed, the pain got worse and by March it was starting to interfere with her sleep. The applicant also testified that she approached the supervisor in January and told her that she could not come into work, and that she needed to see her doctor and physiotherapist. During this period, the applicant said she was in so much pain it was interfering with her duties and she had to take Advil on the job. She testified that she was concerned about dropping a child.

8It is not entirely clear from the applicant’s evidence when she first sought assistance for this pain. The applicant submitted a note from a physician with the West Vaughan Medical Centre, dated March 7, 2014, which states, “Patient is not fit to work for 1 week because of medical reasons.” A follow-up note, dated March 18, 2014, from another doctor at the West Vaughan Medical Centre, states, “off work for medical reasons until further notice.”

9The applicant also submitted two reports from the Vaughan Rheumatology Centre, dated December 18, 2014 and July 28, 2015 respectively, which indicate that the applicant was first seen by the Centre on October 16, 2014 for “right hand pain” and that she had reported onset of the pain in 2013. A report from the applicant’s chiropractor, dated July 15, 2015, stated that the applicant had reported that her “symptoms began November 2013 or thereabouts.”

10None of these reports provide a definitive diagnosis, although the reports from the Vaughan Rheumatology Centre suggest that the applicant may have “flexor tendonitis.” All three reports speak of pain in the right hand, while the report from the chiropractor also states: “Stiffness and tightness of the soft tissues, loss of normal joint function and overall decreased ranges of motion with general hand and arm weakness was observed.”

11The respondent produced a medical note dated December 5, 2013 from the West Vaughan Medical Centre that the applicant had been “advised Voice Rest for 2 days or so.” It also produced an “Up-to-date Health Information” form filled out by West Vaughan Medical Centre, dated December 14, 2013, which stated “None” under the heading “Health Concern.” This was put to the applicant in cross-examination, who said that it was her understanding that the purpose of this form was to ensure that her immunizations were up-to-date. Certainly, much of the information on the form (and accompanying documents) is related to the applicant’s immunization history and immunities to various communicable diseases.

Initial Requests for Accommodation

12The applicant’s testimony on this point was not particularly detailed. She said she let her co-worker, Desiree, who was hired in November, know that she was in pain and Desiree offered to help her pick up the children. However, the applicant was of the view that Desiree was not particularly helpful otherwise, and spent far too much time on her phone.

13In January, Desiree was transferred to the pre-school room, and the applicant was joined by two new staff members – Sevim and Leanne – both of whom were pregnant. The applicant testified that these women were both concerned about miscarrying, and so she offered to lift to prevent that. In other respects the applicant found Sevim and Leanne wanting. In her Application, the applicant asserted that they felt they could “slack off” and that the latter hire was tired, moody and had lowered patience with the children.

14The applicant testified that the supervisor was aware of the pain because she would ask how the applicant was doing, to which the applicant would answer that she had just taken an Advil. It is not clear from the applicant’s testimony when she asserts she first let her supervisor know about the pain in her arm/hand. She testified that she told the supervisor in January that she could not come into work – that she needed time off work to go to physiotherapy and get medical help – but was told that her job would be on the line if she did that.

15The supervisor no longer works for the respondent and did not testify. However, the respondent entered the applicant’s payroll documents that appeared to show that she requested and/or took time off during her six-month employment with the respondent, including four full or part days in late January and early February, for medical and personal reasons without any apparent ramifications. When this was put to the applicant in cross-examination, she did not dispute the accuracy of these documents.

16The applicant also testified that once or twice a week the supervisor would transfer her to other rooms to help the children there as a way of giving her a break.

Events of March 5-6, 2014

17One of the applicant’s complaints was that she was required to work the late shift (i.e., from 9-6), while the other two persons in her room worked earlier shifts. She testified that this was problematic because it made it difficult to make doctor’s appointments. Also, the person on the late shift had to vacuum and take the trash from her room to the garbage area outdoors, a job that entitled dragging the bag of garbage some distance. The applicant testified that not everyone took the garbage out from their room, which meant this additional task fell to her and one of the other daycare workers. Moreover, she testified that Desiree would only vacuum half the hallway, further burdening the applicant.

18The applicant testified that she approached Sevim on March 5, 2014 about arranging it so that the late shift would be rotated on a weekly basis. Alternatively, the applicant testified that Sevim approached her and refused to work the late shift. In any event, the applicant testified that the supervisor approached her on March 6, 2014, very upset and demanded to know what she had said to Sevim. She testified that she reiterated that she was in pain.

19In contrast, in a letter apparently written shortly after the events in question (and dated March 18, 2014), the applicant wrote that she learned that her daughter had successfully enrolled in a program on March 4, 2014, which meant that she would need to work the early shift on Wednesdays and Fridays thereafter. She wrote that she had brought this to the attention of “management” and her co-worker earlier. Given the short notice, she did not insist on the schedule being adjusted for Wednesday, March 5, 2014, but instead, the letter goes on to state, the applicant approached Sevim that day to let her know she would need her “co-operation” on Friday.

20This letter further states that the applicant was approached by the supervisor later that day, after Sevim had left, and dealt with aggressively. However, the next day (i.e., March 6, 2014) “management” advised the applicant and Sevim to alternate their shifts to avoid conflict. Afterwards, the applicant alleged Sevim was angry and raised her voice in front of the children. The applicant states that “immediately after [she] attended [the] management office.” It is not clear from the letter what, if any, response she received.

21The parties are in agreement that on March 6, 2014, the supervisor called an impromptu meeting of the staff, which took place in the hallway outside the various rooms so that staff could still attend to the children. The applicant testified that she was in the infant room attending to the children at the time, but could hear what was going on. She testified that the supervisor was upset about, among other things, the fact that the garbage had not being taken out the night before.

22At one point, the applicant testified she said, “Ladies, it was nice working with you.” However, the applicant was adamant that she did not resign. The meeting ended and the staff, including the applicant, returned to their rooms. The parties are in agreement that the applicant worked the remainder of the day.

23As noted above, the supervisor did not testify. The respondent, however, called one of the other daycare workers, Melanie Medeiros, to testify about the March 6, 2014 meeting. She said that the meeting lasted approximately 10 minutes. At the end of the meeting, she testified, the applicant said she wanted to say a few words, and then proceeded to announce it was going to be her last day working there and she wished everyone well. She testified that the staff was in shock and the supervisor seemed surprised by this announcement. She recalled the supervisor saying it was a private matter and she would discuss this in the office, at which point she told everyone to go back to their rooms.

24The question of whether the applicant resigned subsequently became an issue between the parties. The respondent produced an undated document, purportedly signed by the other daycare employees, which states that these employees were present at the meeting and heard the applicant announce she had decided to resign. This document mistakenly stated that the meeting took place on Wednesday, March 6, 2014 (it was a Thursday). Other than Ms. Medeiros, none of the other signatories to the document testified. Ms. Medeiros testified on cross-examination that she thought she signed the document on the day of the meeting.

25The applicant produced a calendar, which she testified she maintained during this period. The entries were largely reminders about medical appointments, bill payments and other domestic matters. However, on March 6, 2014 the applicant marked “I quit Cudly” and above that “Just words.” These notations were put to her in cross-examination to which the applicant responded that she only wrote these down after she received the March 17, 2014 letter from the respondent stating that she had quit.

The Aftermath

26After she got home, the applicant said that she sent an email to her supervisor advising her that she would “not be able to attend work March 7 2014 due to sickness.” The applicant produced the email (which contains a date, but not a time stamp), which makes reference to “chronic pain in [her] right arm and shoulder” and advises that she would be seeing her doctor. The note she received from her doctor on March 7, 2014 states “Patient is not fit to work for 1 week because of medical reasons.”

27The applicant testified that she delivered this March 7, 2014 note from her doctor, to the supervisor on March 10, 2014. She also produced what appeared to be a follow-up email to her supervisor dated March 10, 2014 (which has a time, but no date stamp) that states:

Please be advised that I will be returning to work on Monday March 17, 2014. Further to our conversation on March 10, please notify me if a reduction of my hours at work is granted due to my medical condition. As you have told me that you will look into the matter and that it shouldn’t be a problem, but the directors approval is required. Thank you for considering me a valuable worker as you already know I enjoy my job and thank you for bringing to my attention of reducing my hours in order to accommodate my return to work. After being absent 1 week from work on Doctors orders I am Igor [sic] to come back and enjoy the company of children.

28The applicant testified she and her supervisor discussed reducing her hours from an 8-hour day to 5-6 hours per day, allowing her to attend physio and see her doctor. She said they discussed that this accommodation would last until she felt better and regained her confidence about picking up the children.

29The applicant also testified that she dropped off a further medical note to the supervisor on March 14, 2014, stating she would be “off work for medical reasons until further notice.” It was pointed out to the applicant in cross-examination that the date on the note appears to be March 18, 2014 and that would be consistent with an entry in her calendar that she had an appointment with Dr. Rotundo that day. The applicant was adamant that the date on the note was wrong and that she did stop by the respondent daycare on March 14, 2014 to drop off the note. In her March 18, 2014 letter, however, the applicant references “further medical confirmation dated March 18th, 2014.” There is no mention in that letter of a March 14, 2014 note.

30Sandeep Singh, the Director of Operations for the respondent (and an owner), testified that heard about the applicant’s resignation from the supervisor. She said the above emails and medical notes came to attention of the respondent only because they were attached to the Application (Form 1). However, she was aware that the applicant was talking about coming back in, post-resignation, and so she asked the supervisor to type up a letter of termination.

31The parties are in agreement that the supervisor sent a text message to the applicant on March 14, 2014, directing her to come into work on Monday (i.e., March 17, 2014) at 9:00. They are also in agreement that the applicant was called to the supervisor’s office and, in the presence of Ms. Sandeep and her spouse, handed a brief letter of termination, which references her “decision to resign on Wednesday, March 05th, 2014.” Ms. Sandeep acknowledges that the date of the alleged resignation was incorrect on this letter and should have read Thursday, March 6, 2014.

32The parties are also in agreement that the conversation got very heated and that the applicant was asked to leave, under threat that the respondent would call the police if she did not. They are also in agreement that the applicant attempted to convey what she perceived to be the problems with the respondent’s operation, in general, and the supervisor, in particular. Ms. Sandeep testified that the applicant did not talk about her medical condition at all at this meeting.

33As discussed above, the applicant wrote a letter dated March 18, 2014. The respondent states it did not get this letter until it received the Application (the letter was appended to the Application). The applicant testified she drafted this letter in order to set out some of the information she was unable to discuss in the termination meeting. This letter states, in part:

On March 17th, 2014 I was personally served Notice of Termination.

As per your letter it discloses that termination is in full force and effect based on decision to resign personally that dates back to March 5th, 2014.

Due to chronic pain in my right arm and shoulder and with medical confirmation I am unable to attend work as directed by my family physician.

decision and analysis

Did the Applicant Have a Disability? Did She Request Accommodation During her Employment?

34The essence of the applicant’s case is that she had a disability, caused by the conditions at work, which the respondent refused to accommodate. Indeed, when she took time off work to address this disability, the respondent terminated her employment to forestall having to provide further accommodations. The respondent disputes that the applicant has established she had a disability at the relevant time, that she requested accommodations for this disability or that this alleged disability was a factor in the termination of the applicant’s job.

35The applicant submitted four medical notes: what appears to be a radiology report, two letters written by her specialist and one note authored by her chiropractor. The radiology report seemingly finds nothing significant in whatever investigation was conducted. I use the words “appear,” “seemingly” and “whatever investigation” advisedly because this was a highly technical document and I received no expert assistance interpreting it.

36None of the above documents makes a clear finding of a medical condition. The respondent argues that, in the absence of a diagnosis, I cannot make a finding that the pain the applicant testified she was experiencing amounted to a “disability” within the meaning of the Code. It relies on two cases of this Tribunal in support of this proposition: Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429 (“Crowley”) and Hepting v. Mary R. DiSalvo Financial Services Corporation, 2014 HRTO 901 (“Hepting”).

37The applicant in Hepting submitted three medical notes from that her family physician that respectively described the applicant’s medical condition as an “illness,” “ongoing medical issues” and “present medical issue.” The applicant in that case did not call her family physician. Had the applicant in the instant case merely relied upon the notes from the West Vaughan Medical Centre submitted in March 2014, the Hepting case might be applicable. However, the specialist’s medical report, in particular, contains significantly more information.

38In Crowley, the Tribunal stated:

…I agree that in order to meet the definition of mental disability within the meaning and protection of the Code, where the case does not involve an allegation of discrimination on the basis of a perceived disability, there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance. This is lacking in this case.

39I disagree with the respondent’s assertion that the fact that we do not know what the applicant’s disability is, with any degree of specificity, means that she cannot have a disability within the meaning of the Code. Dr. Cohen (the specialist) and Dr. Bloom both describe what appear to be “clinically-significant symptoms” and Dr. Cohen’s report also has what appear to be a “working diagnosis” (i.e., “flexor tendonitis”). Moreover, Dr. Cohen described treating the applicant with a local cortisone injection, a procedure she describes as not without risk to the applicant. I am prepared to infer that such a treatment would not be offered to someone with a fleeting, transitory or inconsequential medical issue.

40Although I am not prepared to rely on the absence of a diagnosis to dismiss this Application as being outside the Tribunal’s jurisdiction, I am concerned about the lack of evidence concerning the applicant’s condition at the relevant time, namely, at the time of her employment with the respondent. Dr. Cohen states in one of her two reports that she had been treating the applicant for right-hand pain since October 16, 2014 – more than seven months after the applicant’s last working day.

41Both Dr. Cohen and Dr. Bloom report that the applicant advised them that her pain commenced in “2013” and “November 2013” respectively. Neither practitioner comments on whether the information provided to them is likely to be reliable. It is important to note that by the time the applicant was seeing them, she was already contemplating litigation (or had commenced it), and one must be alive to the possibility that this retrospective self-report may have been influenced by this state of affairs. I am not prepared to rely on this hearsay.

42There is a lack of medical evidence during the period the applicant worked for the respondent. Although she stated in her evidence that she approached her supervisor in late January about taking time off for medical appointments, the applicant provided no information about who she saw about this problem and what was recommended. Indeed, there is no information from her family doctor (or any other health practitioner) from this period other than unrelated notes advising that she needed to rest her voice and her immunizations were up-to-date.

43The two notes from the West Vaughan Medical Centre from March 2014 offer no assistance. Neither specifies the “medical reasons” why the applicant was “not fit to work;” whether the recommendation to take time off work was based on an objective medical examination or the applicant’s self-report; and what accommodations the applicant might need to return to work.

44In the final analysis the only evidence I have of disability at the relevant time is the testimony of the applicant. This question then becomes, was this testimony credible and reliable? To answer that, I must look to her testimony as a whole.

45The applicant’s testimony on her right hand/wrist/shoulder pain is that until she started working for the respondent it did not exist, but materialized as a result of the excessive lifting she was required to do as a teacher’s assistant in the infant room. I would note, first, that it is not my job to determine the causation of the applicant’s medical condition, an issue that would likely be relevant to a claim under the Workplace Safety and Insurance Act. However, if her condition was exacerbated by the conditions at work, this could be relevant to a question of whether she was able to do the essential duties of the position with accommodation.

46The applicant took the position that the pain did not materialize until the number of infants she was responsible for increased sometime in November or December. She was not happy with the first co-worker assigned to work with her in the infant room, although she did testify that this person offered to lift for her. She was similarly unhappy with the two co-workers who came to work with her in January, saying that they did not take on their fair share of the work, in part because they were pregnant, but also because “management” favoured them over her.

47The applicant testified that she voluntarily took on some of the lifting in the room because of what she appeared to believe was a valid concern about miscarriage. Given that she took this on (as opposed to management requiring her to do it), it is hard to assess what, if any, pain she was in during this period. Likewise, the applicant testified that she did not just remove the garbage from her room, but would sometimes take out the garbage from the other rooms when staff there neglected to do so, even though it was not part of her job duties.

48I am prepared to find that the applicant found this division of labours unfair, and given her personality, likely complained to her supervisor about it. I am not prepared to find, however, that she couched her complaints in terms of a request for an accommodation of a disability, especially in the absence of any medical documentation.

49The applicant’s did not testify about her condition or requests for accommodation in the period following the alleged request for accommodation that she said took place on or around January 20, 2014. That is, I have no information on which to make a finding that her condition stabilized, got better or got worse. It is known from the documentary evidence (which the applicant did not refute) that she took time off on January 24, February 4 and February 25, 2014. The applicant did not, however, say that this was related to any pain in right hand, wrist or shoulder and I can draw no inferences about the state of her condition from these absences.

50The applicant testified that the pain was getting worse and so she was attempting to negotiate some relief from the schedule that had her working the 9-6 shift most of the time in early March, so she could seek medical assistance after work. This position is contradicted by her March 18, 2014 letter in which she said that she required the early shift to take her daughter to a program on Wednesday and Friday nights.

51Indeed, as pointed out by the respondent, this March 18, 2014 letter did not assert that the applicant had made any request for accommodation of her medical condition prior to March 7, 2014.

Did the Applicant Resign? Was Her Employment Terminated Because She Disclosed a Need for Accommodation of a Medical Condition?

52The applicant testified that she did not resign at the staff meeting held on March 6, 2014. She did testify, however, that she said something to the effect of, “Ladies, it was nice working with you,” which might reasonably have been perceived by those in attendance at the meeting that she was quitting.

53I am not prepared to give any weight to the document filed by the respondent, purportedly signed by most of the staff of the respondent daycare confirming they heard the applicant resign at this meeting. With the exception of one co-worker, none of the signatories testified about the circumstances around them being asked to sign it. I am mindful of the fact that most, if not all of them, were employees of the respondent at the time and they may well have felt compelled to sign it. There was no evidence about who prepared the document and when it was prepared.

54However, I am prepared to accept the testimony of Ms. Medeiros, a staff member at her respondent, who said she heard the applicant resign. Her testimony that the applicant’s co-workers and supervisor were shocked by the applicant’s announcement had the ring of truth to it. Moreover, the applicant did not undermine this witness’s testimony in cross-examination. This witness gave thoughtful answers and acknowledged the applicant’s propositions about an unrelated incident at the daycare without being argumentative.

55In contrast, the applicant was argumentative in cross-examination, sometimes to the point where her answers strained credulity. For example, she wrote on her calendar “I quit Cudly” on March 6, 2014, but insisted in cross-examination that she only did this after she received her termination letter on March 17, 2014. This inherently makes no sense. In addition, the letter mistakenly states she resigned the previous day (i.e., March 5, 2014), so if she was merely reproducing the respondent’s position, it is not clear why she did made this notation on March 6th instead of the 5th. Moreover, the phrase “I quit Cudly” is modified by the notation “Just words,” which suggests that the applicant acknowledges that she said them.

56In the March 18, 2014 letter, she does not actually dispute the assertion in the termination letter given to her the day before (assuming the March 18th date is correct) that she had resigned her employment.

57The applicant took the position that she saw Dr. Rotundo, a physician with the West Vaughan Health Centre on March 14, 2014 and submitted the medical note she received that day to the respondent. When it was pointed out to her in cross-examination that the date on the note is March 18, 2014 (i.e., after her employment had been terminated) and that there is a notation in her calendar that she had an appointment with Dr. Rotundo on March 18, 2014, she insisted that both the date on Dr. Rotundo’s note and the entry in her calendar must have been mistakes.

58I would note that she makes a reference to a visit with her physician that day in her March 18, 2014 letter; she makes no reference in this letter to a doctor’s visit taking place on the 14th. When this was pointed out to her in cross-examination, she said she was in “no emotional state to write about it.” These exchanges demonstrate that the applicant was prepared to concoct explanations that made no sense rather than acknowledge that she may have been wrong. They seriously undermine the credibility of her testimony.

59The applicant’s credibility is critical given that she was the only witness who testified about exchanges between her and her supervisor. Given the vagueness of her recall, coupled with her propensity to embellish, I am not prepared to rely on her testimony, unless it is supported by the documentary evidence and/or not contested by the respondent.

60Viewing the evidence in this light, I find that the applicant resigned her position on March 6, 2014 at the staff meeting. I further find that she wanted to resile from that intemperate resignation and, to that end, saw her physician for the purpose of saying she needed time off work. It is not clear to me whether the applicant was experiencing significant pain at this time, but I find that prior to her resignation, she had not requested accommodation from the respondent. Her demands were couched in terms of fairness rather than disability-related needs.

61I find that, ultimately, the respondent terminated the applicant’s employment because it was of the belief that the applicant had severed the employment relationship by resigning her job. I also find that it was justified in thinking that her post-resignation requests for accommodation of an unspecified medical condition were not genuine.

62The applicant has the burden of proving discrimination on a balance of probabilities. In light of the above findings of fact, I cannot find that the applicant has established on a balance of probabilities that her disability was a factor in the respondent’s decision to terminate her employment.

order

63The Application is dismissed.