Clarke v. Nuform Building Technologies Inc., 2017 HRTO 1254

Human Rights Tribunal of Ontario

B E T W E E N:

Claudette Clarke Applicant

-and-

Nuform Building Technologies Inc. Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: September 25, 2017 Citation: 2017 HRTO 1254 Indexed as: Clarke v. Nuform Building Technologies Inc.

APPEARANCES

Claudette Clarke, Applicant Self-represented

Nuform Building Technologies Inc., Respondent Greg McGinnis, Counsel

1This is an Application dated September 17, 2016 alleging discrimination with respect to employment because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated January 6, 2017, the Tribunal directed that a summary hearing be held 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. The issue identified by the Tribunal was whether the applicant would be able to prove that there is a connection between what the respondent is alleged to have done and the grounds of race and colour cited in the Application.

3The summary hearing proceeded before me by teleconference on June 15, 2017, at which time I heard oral submissions from the parties. I also have considered all material filed by the parties for the purpose of the summary hearing.

BACKGROUND

4The applicant self-identifies as a Black woman from Jamaica. She was employed by the respondent as a human resources generalist. There is a dispute between the parties as to when the applicant commenced her employment. The respondent says that she started on a part-time basis on March 12, 2012 to replace an employee who had left on maternity leave, and that it offered her full-time employment effective March 18, 2013. The applicant says that she was initially hired on a contract basis as of May 16, 2011 to cover for the employee on maternity leave, and that the contract ended on January 31, 2012 after that employee had returned. She says that the employee then resigned, and she was offered the position of human resources generalist on March 12, 2012. She states that she was initially working on a part-time basis, but moved to full-time employment with the respondent within a week or so.

5There is no dispute between the parties that the applicant’s employment was terminated without cause effective September 22, 2015.

6The applicant’s allegation is that, in her position as human resources generalist, she was required to deal with a particular manager, P.T., who she alleges engaged in a pattern of abusive, bullying and harassing behaviour. She alleges that she made repeated efforts to correct P.T.’s behaviour, including making senior management of the respondent aware of this behaviour, but the conduct persisted and senior management tolerated his behaviour. The applicant alleges that P.T. displayed behaviour contrary to proper workplace conduct. She states that, as P.T.’s office was in close proximity to the human resources office, she could hear his swearing and comments. She states that on numerous occasions, she asked P.T. not to conduct himself in this manner, however P.T. continued to engage in harassing, swearing and bullying behaviour toward employees and his conduct got worse.

7The applicant alleges that the respondent company’s rules of conduct were reviewed with P.T., but he did not change his conduct. The Application sets out a series of specific incidents where P.T. is alleged to have engaged in this kind of behaviour, requiring the applicant’s involvement as the human resources generalist. She alleges that an incident occurred in which P.T. was swearing at another employee, Mr. G., following which P.T. admitted he was wrong and apologized to Mr. G. She alleges that in February or March 2015, P.T. went on a rampage of swearing and making insulting comments about another employee, M.D., in the context of a discussion with the applicant in relation to a disagreement about obtaining approval to hire temporary workers. The applicant alleges that P.T. disrespected her as the human resources person, and that she was embarrassed by his conduct when speaking with her. She states that she advised P.T. that his conduct was inappropriate, and reported this conduct to P.T.’s supervisor. She states that the plant manager told her a short while later that he had spoken with P.T. concerning the way P.T. had spoken to the applicant. The applicant alleges that after this, P.T. did not speak to her for over two weeks.

8The applicant alleges that a further incident occurred involving P.T. in the context of a delayed shipment schedule. She alleges that P.T. shouted, embarrassed, and used profane language towards Mr. G., which resulted in Mr. G. going home for the remainder of that day. The applicant states that she issued a verbal warning to P.T. and reviewed the company’s rules of conduct with him. She states that she asked P.T. to apologize to Mr. G., which he did. She states that she placed a copy of the verbal warning into P.T.’s file and informed senior management. She alleges that once again, P.T. did not speak with her for a while.

9The applicant states that P.T. was promoted to head of manufacturing as of July 1, 2015. The applicant alleges that on August 6, 2015, there was another incident where P.T. was having a discussion with two other employees, and suddenly started shouting at one of these employees, S.B. She states that S.B. provided her with an e-mail describing the incident, including allegations that P.T. had started shouting and swearing at S.B. and had taken a report that S.B. wanted to discuss and tore it into pieces. She states that S.B. also alleged that P.T. told him never to speak with P.T. again. The applicant states that she forwarded S.B.’s e-mail to P.T. and requested a meeting with P.T. to discuss what had happened. She alleges that P.T. initially refused to meet with her unless certain members of senior management were present for the meeting. She states that P.T. copied his response to the vice-president of operations and a human resources consultant who had been engaged by the respondent. The applicant states that eventually P.T. agreed to meet with herself and S.B.

10The applicant states that this meeting took place on August 19, 2015 and lasted three minutes. She states that she informed P.T. that the manner in which he had spoken to S.B. was not appropriate and was not in accordance with the company’s code of conduct. She alleges that she asked P.T. whether he agreed that his conduct was inappropriate, to which P.T. replied by saying, “I have nothing to say”. She alleges that she asked P.T. to apologize to S.B., and P.T. refused. She states that she asked P.T. never to speak to S.B. in such manner again, and P.T. agreed by stating that he would never have to speak to S.B. again.

11The applicant states that she informed the vice-president of operations, who was P.T.’s supervisor at that time, of the outcome of her meeting with P.T. and S.B., and asked the vice-president to speak with P.T., as P.T. was not willing to follow the company’s policy or hear what she had to say. She states that the vice-president responded by saying that he was not a conflict resolution expert, and that he knew that talking with P.T. was not going to resolve the situation. The vice-president suggested that the applicant contact the human resources consultant and ask her how to proceed. He stated that this was a human resources conflict resolution situation that needed to be addressed, de-escalated and mitigated from future occurrence with empathy to everyone involved. He expressed that in the future, he expects human resources to resolve such situations and de-escalate them without his involvement. The applicant states that she also raised the situation with another senior manager, who she states did speak with P.T. but blamed her for failing to resolve the situation.

12The applicant also cites other interactions involving P.T. She states that on July 31, 2015 at 5:30 p.m. she was in the process of arranging coverage for the weekend. She states that she called out to P.T. as he was leaving for the day, to tell him that she was having some challenges getting enough temporary workers for the weekend, but that she would keep trying. She alleges that P.T.’s comment to her was, “why don’t you give [S.B.] a call and tell him to help you now?” She alleges that this was a sarcastic comment by P.T. towards her.

13The applicant further alleges that on August 4, 2015, she brought to P.T.’s attention that a particular employee was late for work almost every day, and that she would speak to the employee about this. She alleges that P.T. said he would speak to this employee himself, and made light of the employee’s tardiness. She alleges that P.T. further stated that this was a minor issue and that the applicant should be concerned with much larger issues such as getting people for work.

14The applicant alleges that on August 19, 2015, she discussed an issue with P.T. relating to an employee who had been hospitalized with a medical condition, and who had requested to return to work on the day shift in order to minimize further health issues, which the applicant states was supported by medical documentation. She states that she explained the situation to P.T. as well as the company’s duty to accommodate, and suggested that this employee remain on day shift for three months until further medical assessment. She alleges that P.T. disagreed with her recommendation and implied that she did not understand the company’s needs. She states that P.T. suggested that the applicant reach out to the human resources consultant to get her opinion. The applicant states that she told P.T. that she had dealt with many such issues in the past, was capable of handling the matter, and would not consult with the human resources consultant. She states that ultimately the issue was handled by the vice-president of operations.

15The applicant states that a further incident involving P.T. occurred on August 28, 2015. She states that P.T. and another employee, E.D., came walking towards her office shouting at each other. She alleges that P.T. pushed and poked E.D. several times, and that she had to get between these two employees to avoid further pushing. She alleges that even when she was in between P.T. and E.D., P.T. still reached over her shoulder and poked E.D. The applicant states that she continued to ask them to stop shouting at each other, separated them, and then went to get help. By the time the applicant returned, she states that P.T. had left for the day to start a vacation. The applicant states that she conducted an investigation by interviewing a number of employees who had witnessed the incident. The applicant states that on September 4, 2015, she sent an e-mail to P.T. indicating that it was necessary to discuss this incident upon his return from vacation. She states that P.T. replied by requesting to have a number of senior managers, the human resources consultant and his lawyer present for any meeting. The applicant states that she was told by the vice-president that he had spoken with E.D. and would handle this incident, and that no further action was required from the applicant.

16The applicant states that on September 20, 2015, an employee, Z., came to her office to report an incident involving P.T. that had occurred on September 18, 2015. The applicant states that Z. told her that he was working on a machine, and P.T. came out and started to rant and throw things on the floor. She states that Z. told her that P.T. threatened to reduce Z.’s overtime, and then grabbed a broom from another employee and told Z. that he would be sweeping the floor the following week. She states that Z. said he asked P.T. to stop, to which P.T. replied by saying that Z.’s nose was “full of shit”. The applicant states that she requested a meeting with P.T. to discuss the incident, and for the first time P.T. immediately agreed. She states that they discussed Z.’s complaint, and P.T. agreed with everything except one detail. The applicant states that she informed P.T. that his conduct was harassment and that he should apologize to Z. She states that P.T. agreed, but insisted that this could not be done that day. As a result, a meeting was scheduled for September 22, 2015. The applicant states that on September 22, 2015, P.T. was out of the office for most of the day. She states that she was unable to proceed with this meeting, as she was called into a meeting with senior management and advised that her employment was terminated.

17With regard to the termination meeting, the applicant states that she asked the reason for the termination of her employment, and she was told that the company was making the position a more senior role and that the applicant was not suitable for that role. This is disputed by the applicant, who notes that she is a senior human resources professional who has worked in human resources for over 15 years.

CONNECTION TO RACE AND COLOUR

18The applicant’s primary allegation is that her race and colour was a factor in how she was treated by P.T. She alleges that, as a Black woman, P.T. disrespected her authority, refused to follow her recommendations, insisted that the applicant consult with the human resources consultant (a White woman) on issues within the applicant’s experience and expertise, refused to meet with her without senior managers, the human resources consultant or his lawyer present, questioned her abilities, and was sarcastic and demeaning towards her. She relies upon the specific incidents reviewed above to support her allegation.

19It is well-established in this Tribunal’s caselaw that racial discrimination at the present time does not always or even often involve the use of explicit racial epithets or other explicit racial behaviour, but more often is exhibited in subtle ways as a result of conscious or unconscious racial biases or stereotypes. In dealing with these more subtle expressions of racial discrimination, it is this Tribunal’s role to consider all of the relevant contextual evidence in order to determine whether there is sufficient evidentiary support to draw an inference that race was a factor in how a racialized employee has been treated. In my view, such an assessment is best left to be made on the basis of the entirety of the evidence at a merits hearing, rather than on the basis of oral submissions at the summary hearing stage.

20I am well aware that the respondent takes the position that any conflict between the applicant and P.T. was interpersonal, and not racial, in nature. That may be. However, in my view, the issue of whether the applicant’s race and colour was a factor in how she was treated by P.T., or whether this was simply an inter-personal conflict unrelated to her race and colour, needs to be assessed on the basis of evidence at a merits hearing. In my view, the applicant’s allegations in this case go beyond the making of a bare allegation of discrimination because of race and colour. She has provided in her Application a detailed description of a series of incidents which, if true, are capable of supporting her allegations about having been repeatedly disrespected, disregarded and demeaned by P.T., and which could potentially support an inference that she experienced racial discrimination. As I have said, whether or not that turns out to be the outcome is a matter best left for an evidentiary hearing on the merits.

21The applicant’s further allegation is that her conflict with P.T. and her inability to resolve the issues she alleges resulted from P.T.’s inappropriate workplace conduct were a factor in the respondent’s decision to terminate her employment. I appreciate that this is denied by the respondent, which asserts that the termination decision was the result of a recommendation made by the human resources consultant that it hire a more senior human resources person. This, however, begs the question of why the respondent felt that the applicant was not capable of fulfilling such a role, and whether her interactions and conflict with P.T. were a factor in the respondent’s assessment of her abilities. In this regard, I note that in the Ontario Human Rights Commission’s “Policy and Guidelines on Racism and Racial Discrimination”, one of the potential indicia of racial discrimination is identified as “penalizing a racialized person for failing to get along with someone else (e.g. a co-worker or manager), when one of the reasons for the tension is racially discriminatory attitudes or behaviour of the co-worker or manager”. In my view, that is the essence of this Application as it relates to the applicant’s allegation that she experienced racial discrimination in relation to the respondent’s decision to terminate her employment.

22I appreciate that the respondent has an alternate explanation for its decision. At a hearing on the merits, the respondent will have the opportunity to provide evidence to support a credible, non-discriminatory explanation for its decision to terminate the applicant’s employment. But at an evidentiary hearing, as opposed to at the summary hearing stage, the applicant will have the opportunity to present evidence to challenge the respondent’s explanation and the opportunity to prove, at the end of the day, either that the respondent’s explanation is not credible when considered in the context of the entirety of the evidence, or that the respondent’s explanation in fact is discriminatory, in that a discriminatory factor came into play, such as the alleged racial discrimination that the applicant says underlay her conflict with P.T. In my view, that issue also is best determined based upon the entirety of the evidence at a merits hearing, as opposed to on the basis of oral submissions at the summary hearing stage.

23As a result, I am unable to find that the applicant’s allegations have no reasonable prospect of success at this stage of the proceeding. Accordingly, I decline to dismiss the Application as having no reasonable prospect of success, and the Application will proceed further in this Tribunal’s process.

RESPONDENT’S REQUEST FOR ORDER

24By Request for Order dated December 1, 2016, the respondent requested an order from this Tribunal striking the allegations set out in the Application as Events 1 through 10, on the basis that these allegations are not relevant to the matter at issue in this proceeding. In my view, on the basis of the analysis above, the allegations described as Events 4 through 10 all relate to the applicant’s allegations regarding P.T.’s conduct towards and treatment of her, and as such are relevant to the issues raised in this proceeding. With regard to Events 1 to 3, in my view these allegations are arguably relevant to the issue of the respondent’s explanation for its decision to terminate the applicant’s employment and the role of the human resources consultant. As a result, the respondent’s request to strike these allegations from the Application is denied.

NEXT STEPS

25In its Request for Order, the respondent requested that, if its request for certain allegations to be struck from the Application were denied, it be afforded an opportunity to file an amended Response to respond to these allegations. This request is granted. Within 35 calendar days of the date of this Interim Decision, the respondent shall serve on the applicant and file with the Tribunal an amended Schedule “A” to be appended to the Response as currently filed. With a further 14 calendar days, the applicant may serve on the respondent and file with the Tribunal an amended Reply.

26As both parties have agreed to mediation in this matter, this file shall be placed in the Tribunal’s mediation queue for the scheduling of a mediation. A Notice of Mediation will be issued to the parties in due course.

ORDER

27For all of the foregoing reasons, I hereby make the following order:

a. As I do not find that the applicant’s allegations have no reasonable prospect of success at this stage of the proceeding, I decline to dismiss the Application as having no reasonable prospect of success and the Application will proceed further in this Tribunal’s process;

b. The respondent’s request to strike Events 1 through 10 from the Application is denied;

c. Within 35 calendar days of the date of this Interim Decision, the respondent shall serve on the applicant and file with the Tribunal an amended Schedule “A” responding to the allegations raised in Events 1 through 10 of the Application, which will be appended to the Response as currently filed;

d. Within a further 14 calendar days, the applicant may serve on the respondent and file with the Tribunal an amended Reply; and

e. This file shall be placed in the Tribunal’s mediation queue for the scheduling of a mediation, and a Notice of Mediation will be issued to the parties in due course.