Wenfeng Lan v. Huawei Technologies Canada Co. Ltd., 2016 HRTO 901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wenfeng Lan Applicant

-and-

Huawei Technologies Canada Co. Ltd. Respondent

DECISION

Adjudicator: Douglas Sanderson Date: July 8, 2016 Citation: 2016 HRTO 901 Indexed as: Lan v. Huawei Technologies Canada Co. Ltd.

APPEARANCES

Wenfeng Lan, Applicant Self-represented

Huawei Technologies Canada Co. Ltd., Respondent Madeleine Loewenberg, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of age and reprisal. The applicant’s reprisal allegations were dismissed in an earlier Interim Decision in this matter, 2013 HRTO 1611.

Background

2The Application concerns the termination of the applicant's employment with the respondent on February 21, 2013. The applicant was 46 years old on the date of his dismissal. The applicant states that there had been no concerns regarding his performance until one of the respondent’s vice presidents, Sam Li, became aware that the applicant was born in the 1960s. The applicant states that his performance rating dropped dramatically after Mr. Li became aware of his age and he was eventually dismissed. The applicant states that he believes Mr. Li judged him based on his age and that Mr. Li thought he was too old for his position.

3The respondent describes itself as an affiliate of a worldwide family of companies that provide information and communication technology solutions. The respondent denies that it discriminated against the applicant. The respondent noted that the applicant was only 46 years old at the time of his dismissal and was 44 years old when he was hired. The respondent states that Mr. Li was not the applicant's supervisor and played no role in managing the applicant's performance. In any event, the respondent states that it dismissed the applicant as a result of downsizing in the Quality and Operations Department ("QOD"), where the applicant worked. There is no dispute that the applicant was employed as a Quality Operations Specialist, sometimes also referred to as a Business Management Specialist.

4The Tribunal heard this matter on October 14, 2014 and October 5 and 6, 2015. The applicant testified on his behalf and respondent presented five witnesses: Anthony Schultz, Wang Lei, William Wu, Sam Li and Jay Dressler. Messrs. Lei, Wu and Li testified by video conference.

Evidence

March 24, 2012

5The applicant's evidence was that he was at work on Saturday, March 24, 2012 along with his coworkers. He and several colleagues went out for lunch and they chatted about their families. The applicant talked about his daughter who was in high school and doing well. This prompted Sam Li to ask the applicant when he was born. The applicant stated that he found this question embarrassing, but replied that he was born in the 1960s. According to the applicant, Mr. Li stated that the applicant was as old as the previous vice president. The applicant stated he was afraid because his age was exposed to his colleagues.

6The applicant's evidence was that after returning to work later the same day Wang Lei asked the applicant about a keyboard function he used and inquired if the applicant played video games. Mr. Li, who was present, interjected by stating "Being an old man now, he (the applicant) absolutely doesn't play games."

7In cross-examination, the applicant stated that all the respondent’s Chinese employees were younger than him and that only local employees were older than him. He agreed that he had no evidence other than his observations to support this statement, but stated that the respondent’s Human Resources Department could provide information about its employees’ ages. When asked if it was possible that Mr. Li asked about his age because he was surprised that the applicant has a teenage daughter given his youthful appearance, the applicant stated that Mr. Li wanted to investigate his age. The applicant confirmed that he was not calling others present on March 24, 2012 to testify, as he believed they would not speak out against their employer. The applicant confirmed that he assumed Mr. Li's comments implied that he felt the applicant was too old for his job.

8Mr. Li has been an employee of the respondent for 17 years and worked in Canada between January 2012 and May 2013. While in Canada, Mr. Li was the Vice President of Delivery Services and reported to Anthony Schultz, the Senior Vice President of Delivery Services. Mr. Li's evidence was that he was not the applicant's supervisor, rather, the applicant reported to William Wu, who in turn reported to Mr. Schultz.

9Respondent's counsel put to Mr. Li the applicant's evidence regarding his alleged statements about the applicant' age, as described above in paragraphs five and six. Mr. Li stated that he did not recall the circumstances the applicant described and did not recall asking the applicant about his age. Mr. Li's evidence was that he did not know how old the previous vice president, Mr. Jo, was. Mr. Li's evidence was that he did not think he ever asked the applicant about his age.

10Mr. Li also stated that he did not recall a conversation between Mr. Lei and the applicant regarding keyboard functions. Mr. Li denied that he made the comments the applicant attributed to him to the effect that the applicant did not play games because he was an "old man".

11In cross-examination, Mr. Li agreed that there would sometimes be group lunches after work, but did not recall if the applicant attended. Mr. Li agreed that it was possible that he and the applicant had been at a group lunch together with Wang Lei and other employees.

12Wang Lei has been employed by the respondent since 1999 and worked in Canada between 2009 and 2014. In March 2012, he was the Director of the Network Integration Department. The applicant had worked in the Mr. Lei's department as a contractor on a project, starting in 2009. When the project was complete, the applicant transferred to Mr. Wu's department.

13Mr. Lei did not specifically recall being at lunch with the applicant and Mr. Li on March 24, 2012. He stated that it was possible, however, as he usually went out for lunch with colleagues from different departments. Mr. Lei's evidence was that he did not overhear a conversation at lunch in which Mr. Li inquired about the applicant's birthdate and stated that the applicant was as old as the previous vice president. Mr. Lei also did not recall if he asked the applicant if he played games later that day or a conversation in which Mr. Li stated that the applicant does not play games because he is an old man. Mr. Lei stated that he played no role in supervising the applicant or managing performance.

Washroom Incident September 2012

14The applicant testified in September 2012 that he went into the washroom at work and saw Mr. Li brushing his teeth. The applicant stated that he made a comment to the effect that Mr. Li was taking care of his teeth. According to the applicant, Mr. Li replied that he seldom brushes his teeth because his teeth were still good, but the applicant had better take care of his teeth. The applicant stated that he felt insulted by this comment because it implied that he was an old man and had to take better care of his teeth.

15In cross-examination, the applicant agreed that this allegation was not included in his Application and that he raised it only after the respondent objected to the timeliness of the Application. He agreed that, absent the respondent's objection, he may not have raised this allegation. The applicant explained that he believed that the incidents arising in March 2012 were sufficient and there were no witnesses to the incident in September 2012.

16Mr. Li's evidence was that he did not recall having such a conversation with the applicant. He noted that he never brushes his teeth in the washroom, but flosses. He did not recall ever advising the applicant to take care of his teeth.

Performance Improvement Plan and Termination of Employment

17Some of the facts regarding the respondent's performance management of the applicant are not in dispute. In 2011, the applicant received a B+ rating on his performance review. In 2012 the applicant's midyear rating was downgraded to C, which meant that his performance was seen as requiring improvement and therefore required that he be placed on a Performance Improvement Plan ("PIP"). The PIP was first implemented in August 2012. There is no dispute that the Canadian division of Huawei began to report directly to China, rather than to the North American headquarters in the United States of America. This change meant the QOD had more onerous reporting obligations.

18The applicant's evidence was that the change in his performance rating was unfair and did not reflect any change in the quality of his work. In the applicant's view, the only explanation for the lower rating of his performance was Mr. Li's opinion that he was too old for his position. The applicant stated that in any event he met all the goals set out in the PIP. The applicant stated that he advised Mr. Schultz that he was concerned that Mr. Li and Mr. Wu criticized him for no reason and that he believed Mr. Li thought he was too old. The applicant stated that Mr. Schultz later advised him that he had spoken with Messrs. Li and Wu who assured Mr. Schultz that they did not consider the applicant to be too old.

19The respondent's position was that the applicant's age was not a factor in the decision to place him on the PIP or to dismiss him from employment. The respondent's position was that Mr. Li had very little to do with managing the applicant's performance.

20William Wu has been employed by the respondent for 17 years and was the Director of the QOD in Canada from 2002 until April 2013. Mr. Wu's evidence was that he was the applicant's direct supervisor and was responsible for managing his performance. Mr. Wu stated that the function of the QOD was to provide support for other business units in the form of financial and quality management. This function entails providing business analysis with a view to identifying business improvements. This analysis was delivered to business units in the form of a variety of reports. Accordingly, the applicant's duties included performing the required analysis and preparing reports. Mr. Wu stated that the QOD had two employees when he began in the department in 2010 - himself and the applicant. By 2013, there were two other employees, one of whom was a contractor. Mr. Wu reported to Mr. Schultz, but sometimes interacted with Mr. Li.

21Mr. Wu’s evidence was that group lunches were not regular, but did occur on occasion when employees were required to work late or on the weekends. Mr. Wu stated that Mr. Li did not attend such lunches very often. Mr. Wu did not recall that Mr. Li ever asked the applicant about his age.

22Mr. Wu's evidence was that although the applicant received a B+ rating in 2011, the applicant needed to improve his ability to perform in-depth analysis, as well as the quality and efficiency of his work. Mr. Wu stated that the applicant also needed to be more proactive. These observations were set out in the applicant's performance review under "Appraisal Remarks". Mr. Wu stated that the C rating the applicant received in 2012 was in part because of the Canadian business began reporting directly to China, rather than through the US unit. The business requirements increased and were more challenging. The Canadian business unit’s management results were not as good as in 2011 and were ranked at the bottom across the organization. Mr. Wu noted his own ranking dropped to a B.

23Mr. Wu stated that the employees are assessed twice per year and there is a midyear and final review. Mr. Wu's concern at midyear in 2012 was that while the applicant met basic requirements, more was required in a small department. The applicant fell short of expectations regarding leadership and quality. Mr. Wu testified that he made tremendous efforts to train the applicant. Notwithstanding these efforts, Mr. Wu's view was that the applicant was unable to work with limited supervision and lacked the business knowledge to make valuable suggestions. Mr. Wu stated they came to these conclusions without input from Mr. Li and did not consider the applicant's age. Mr. Wu noted that the respondent employed many employees who are older than the applicant. Mr. Wu’s concerns were reflected in the applicant's performance review document in 2012 (known as a “Performance Management Platform”).

24As a result, Mr. Wu implemented a PIP with the guidance of Human Resources and Mr. Schultz. The applicant also had input. The PIP itself is a detailed document setting the applicant's objectives. Mr. Wu agreed that the applicant achieved most of his objectives. He noted, however, that the applicant required significant coaching and assistance. Mr. Wu's view was that the applicant required supervision to perform adequately. Mr. Wu's evidence was that, in any event, the decision to dismiss the applicant came about because of reorganization. The applicant's position was combined with a function in the Finance Department and the applicant's position was eliminated. Similarly, a planning function was taken over by the Supply Chain Department, and the contract employee's contract was not renewed. Two employees remained in the QOD, which Mr. Wu understood to be the current structure. Mr. Wu referred to an e-mail message, dated January 7, 2013, from Jay Dressler of Human Resources, indicating that the headcount in the QOD would be reduced by two and directing Mr. Wu to forward performance management documentation to identify the employees to be dismissed. Mr. Wu replied to the message and provided his reasons for selecting the applicant, which were consistent with his comments on the applicant's performance evaluations and PIPs. Mr. Wu also provided a detailed explanation for choosing the applicant for dismissal that was again consistent with his earlier observations. Mr. Wu's evidence was that the applicant was chosen for dismissal because of the reduction in headcount and because he was only an average employee. Mr. Wu recommended to Mr. Schultz and Mr. Li that the applicant be dismissed and they accepted the recommendation.

25Mr. Schultz was employed by the respondent between 2007 and July 2013, when he retired. Mr. Schultz held the position of Senior Vice President Delivery Services, Canada and US, from August 2009 until his retirement. Mr. Schultz confirmed that Mr. Wu advised him of his concerns with the applicant's performance and that he gave Mr. Wu direction regarding the PIP process. Mr. Schultz stated that Mr. Wu prepared a document and was responsible for its content. Mr. Schultz stated that he had to approve the decision to dismiss the applicant, which he did. Mr. Li was Mr. Schultz' deputy and therefore had to be aware of the decision, but did not participate in it or review documents related to it. Mr. Schultz’ evidence was that when it became necessary to reduce headcount the applicant was selected for dismissal because he did not meet his PIP objectives. Mr. Schultz stated that the QOD did not hire anyone else while he was employed. In cross-examination, Mr. Schultz stated that he relied on the advice of Mr. Wu and Human Resources and accepted their recommendation to dismiss the applicant.

26Mr. Li's evidence was that Mr. Wu and the applicant provided his department with monthly reports. Mr. Li recalled being critical of the information presented by the applicant on occasion, which he relayed to Mr. Wu. Mr. Li stated that he was not involved in the PIP for the applicant and saw the document for the first time during the hearing. Mr. Li did have a conversation with Mr. Schultz about the applicant's perception that Mr. Li thought the applicant was too old. Mr. Li stated that he had no such concern and noted that there were a number of employees who were obviously older than the applicant who were doing well.

27Mr. Li stated that he was aware of the decision to dismiss the applicant, but was not involved in making it. Mr. Li understood that the applicant was dismissed because the headcount in the QOD was reduced by two employees and that the applicant's overall performance meant he was chosen along with a contract employee. Mr. Li recalled that the applicant's position was combined with one in the Finance Department and that the contractor's functions were also combined with another department.

28Jay Dressler is the Human Resources Business Partner for the respondent's Business and Delivery Group, the position he has held since August 2011. In this role, he provides human resources support, including support in respect of performance management and termination of employment.

29Mr. Dressler assisted Mr. Wu in his performance evaluation/management duties in the QOD. He confirmed that Mr. Li had no role in the evaluation of the applicant's performance. Mr. Dressler noted that the C performance rating automatically required at PIP. Mr. Dressler stated that he assisted Mr. Wu and the applicant regarding the PIP to ensure that expectations were understood. Mr. Dressler testified that the applicant was chosen for dismissal because the QOD lost two positions and he was the low performer in the group.

Other Issues

30The applicant raised two other issues in his Application, i.e., that he was denied a transfer to another department and that he was not paid a significant amount of overtime. The applicant did not testify about these matters in chief, but was asked about them in cross-examination. He stated that in October 2011 he requested a transfer to "SSD", which was responsible for selling engineering services. He stated there was an opening in the group and he thought he was a good fit. Mr. Wu, however, denied the transfer. The applicant agreed that his age was not given as a reason.

31Mr. Wu's evidence was that the applicant wanted to transfer to the Service Sales Department ("SSD") sometime in 2012. Mr. Wu refused the request because his department was small and he did not have a suitable replacement. He also did not believe that the applicant was suitable for SSD because he lacked sales and customer relations experience and had limited English language proficiency.

32With respect to overtime, the applicant was shown a series of e-mail messages in which he identified his outstanding overtime entitlements to Mr. Dressler, messages between Mr. Wu and Mr. Dressler confirming that the applicant was entitled to the overtime he claimed and a message from Mr. Dressler to the applicant confirming that the respondent would pay him the overtime he claimed. The applicant agreed it had been paid out as requested.

Analysis and Decision

33The relevant section of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

34The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities. To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at paragraph 46.

35In my view, the applicant did not establish, on a balance of probabilities, that his age was a factor in the respondent’s decision to manage his performance and to dismiss him from employment. The applicant pointed to three incidents in which he alleged Mr. Li commented on his age. In my view, it is unnecessary to determine whether these incidents occurred because, even assuming they did occur, the evidence does not support the inference that the applicant’s age was a factor in the decision to manage his performance or to terminate his employment.

36The applicant submitted that there was no explanation for the change in his performance ratings between 2011 and 2012. The evidence does not support this assertion. Mr. Wu provided detailed evidence regarding why the applicant’s rating was downgraded. Mr. Wu’s view was that even in 2012 the applicant was lacking in business analysis skills and that his work needed to be more efficient and higher quality. The applicant’s deficiencies were exposed in 2012 when expectations increased when the reporting relationship with China changed and a PIP was required. Mr. Wu agreed that the applicant met most of the PIP requirements, but only with regular coaching and supervision. Mr. Wu’s overall assessment was that the applicant was an average employee who met basic requirements, which was expressed in the applicant’s performance reviews and PIP. The applicant did not agree with this assessment, but also provided no evidence indicating that Mr. Wu’s view of his performance was based on anything other than his perceptions of the applicant’s strengths and weaknesses. The documents tendered by the respondent in my view clearly corroborate the evidence given by Messrs. Wu, Li, Dressler and Schultz that the QOD was reduced in complement by two in early 2013. The applicant provided no contradictory evidence and I find that the headcount in the QOD was reduced in this manner. Given Mr. Wu’s assessment that the applicant was an average employee who was not really capable of giving valuable business advice, it was logical for him to select the applicant for dismissal. I find that the respondent had non-discriminatory reasons to reduce the applicant’s performance rating, place him on a PIP and to select him for dismissal.

37Of equal importance was the evidence that Mr. Li, who the applicant believed had concerns about his age, had very little to do with managing the applicant’s performance or with the decision to terminate the applicant’s performance. The respondent’s evidence was that Mr. Li was not the applicant’s supervisor and was not responsible for managing his performance. As a result, Mr. Li had no input in the applicant’s PIP. The respondent’s evidence was that Mr. Wu recommended the applicant’s dismissal without consulting with Mr. Li and that the applicant’s age was not considered. The applicant clearly disagreed with this evidence, but provided no contradictory evidence or any proper basis for not accepting the respondent’s evidence. The applicant’s evidence was that it was Mr. Li who had concerns about the applicant’s age. Assuming the statements attributed to Mr. Li in March and September 2012 establish that Mr. Li had concerns about the applicant’s age, the evidence does not establish that Mr. Li played any part in managing the applicant’s performance or the termination of his employment. In these circumstances, I find that there is no proper basis for an inference that the applicant’s age was a factor in the applicant’s performance rating, the PIP or his dismissal.

38The evidence before me indicates that the applicant received the overtime pay that he claimed and experienced no adverse treatment in respect of his overtime. Mr. Wu provided a logical, non-discriminatory explanation for his decision not to grant the applicant’s transfer to the SSD. Mr. Wu’s evidence in this regard was not contradicted and in any event the applicant presented no evidence that his age was a factor in Mr. Wu’s decision.

39The Application is dismissed.