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HomeMy WebLinkAbout2012-1700.Morgan.14-05-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-1700, 2013-1694 UNION#2012-0547-0007, 2013-0547-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Morgan) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Mary Lou Tims Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Heather McIvor Ministry of Government Services Legal Services Branch Counsel HEARING March 18, 2014 - 2 - Decision [1] I have before me two grievances filed by Ms. Sonya Morgan (“the grievor”). The first grievance, dated June 21, 2012, references article 31A.15 of the collective agreement and asserts as follows: “I feel I’m being discriminated against. I have worked for 4 years at TREADD. I haven’t been able to get a 24-40 a week contract or full time contract.” The remedy sought is that the grievor “be classified.” The second grievance, dated February 25, 2013, “appeals” a two day suspension. [2] The Employer raised two preliminary objections with respect to the June 2012 grievance. It argued that particulars provided by the Union disclose no prima facie violation of the collective agreement. In the alternative, the Employer took the position that the grievance is untimely. In the Employer’s submission, the June 2012 grievance should be dismissed on either basis. This decision deals only with such objections, and both Counsel confirmed that it will have precedential value within the meaning of article 22.16 of the collective agreement. [3] The parties referred to the following provisions of the collective agreement: ARTICLE 3 – NO DISCRIMINATION/EMPLOYMENT EQUITY. . . 3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). . . . ARTICLE 22 – GRIEVANCE PROCEDURE. . . . . . STAGE ONE 22.2.1. It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. . . . 31A.15 CONVERSION OF FIXED-TERM POSITIONS TO POSITIONS IN THE REGULAR SERVICE - 3 - 31A.15.1.1 Where the same work has been performed by an employee in the Fixed-Term Service for a period of at least eighteen (18) consecutive months, except for situations where the fixed-term employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Regular Service to perform that work. [4] The Union provided particulars to the Employer, and for purposes of the preliminary motions, the Employer accepted such particulars as proven fact. Those particulars that pertain to the June 2012 grievance are set out as follows: Employment History 1. The Grievor, Sonya Morgan, started working for the Employer, the Ministry of Children and Youth Services, in August 2008 as an Unclassified Child and Youth Therapist at the Thistletown Regional Center. . . . 2. In March 2012, the Grievor started working as an Acting Senior Child and Youth Therapist. . . . 3. Although the Grievor has completed shifts in a number of the TRE ADD houses, the Grievor was based in and completed approximately 95% of her shifts in TRE ADD House 20. Confrontations with Ms. Batson 4. Dede Batson worked as the Senior Child Youth Therapist at House 20 from February – November 2010 and as a Residential Manager from November 24, 2010 – January 1, 2013. The Grievor feels that Ms. Batson subjected the Grievor to differential treatment as a result of her personal animosity towards the Grievor. 5. The Grievor alleges that her relationship with Ms. Batson started to deteriorate when Ms. Batson developed a romantic interest in the Grievor’s ex-partner. In 2010, the Grievor was dating one of the staff members working at House 20. The Grievor’s ex- partner had informed her that he suspected Ms. Batson was romantically interested in him. At the time, Ms. Batson was the manager at House 20 and was required to work the day shifts however Ms. Batson showed up at the House on three nights that coincided with the shifts worked by the Grievor’s ex-partner. . . . 6. In or around July 2010, the Grievor and another staff member took a client for a walk. The Grievor’s set of keys was one of the three sets equipped with an alarm. When the Grievor returned from the walk Ms. Batson approached the Grievor and informed her that there had been an aggression in the house and one of the staff members did not have an alarm to call for help. Ms. Batson told her that when she leaves the house she must leave the alarm in the house. The Grievor explained to Ms. Batson that she needed the alarm in case she needed assistance while she was walking with the client. The Grievor later - 4 - found out that another staff member who had the set of keys equipped with the alarm was outside the house barbequing but was not reprimanded for taking the alarm out of the house. 7. On a different occasion, the Grievor was in the basement with a client who was fixating on the fact that Ms. Batson’s office door was not locked. The Grievor went to ask Ms. Batson whether she could lock her office door but Ms. Batson chuckled and said that the door did not lock. Soon after, the client got very aggressive; he banged his head against the wall and set off the alarm. The Grievor explained the situation to one of the staff members, Jason Holder, who ran to Ms. Batson’s office and locked her door. 8. In November 2012, the Grievor left Ms. Batson a note requesting winter clothing for a client. When Ms. Batson found the note she aggressively ripped up the note in front of the Grievor, clients and other staff members. The Denial of Employment Opportunities 9. In 2011, the Grievor started expressing interest in a full-time position at House 20. On numerous occasions the Grievor asked Ms. Batson to be placed ‘on-the-line’ at House 20 but she was informed that there were no positions available at the time. 10. In the fall of 2011, a classified position became available when Lucy Competiello resigned from her Classified Child and Youth Therapist position at House 20. During a conversation with Ms. Batson, the Grievor explained that she was interested in the classified position at House 20. Ms. Batson said that although there was a position available at House 20, if the Grievor was successful during the competition, she would be placed based on operational need. 11. In September 2011, the Grievor applied for a Classified Child and Youth Therapist position. The Grievor was selected for an interview and was interviewed by Ms. Batson, Michelle Rashid and Sherry Parker-Hilts. During the interview, the Grievor explicitly stated that she was only applying for a position at House 20. The Grievor placed first in the competition but was offered a classified position at House 17. The Grievor turned down the position at House 17 and reiterated her interest in working at House 20. 12. After the Grievor turned down the position at House 17, the second place applicant accepted the position at House 17 and the third place applicant was offered a position at House 20. From the fall of 2011 to June 2012, four staff members were placed in either ‘on-the-line’ or classified positions at House 20. 13. On June 21, 2012, the Grievor filed a grievance alleging that Ms. Batson has denied her employment opportunities. The Grievor had worked at TRE ADD for four years but had not been able to receive a full-time contract position. The Grievor has been treated unfairly and inequitably and feels that the treatment she has been subjected to is a direct result of Ms. Batson’s personal animosity towards the Grievor. . . . - 5 - Remedies 19. The Grievor alleges that she has been treated unfairly and inequitably and has been arbitrarily denied employment opportunities. 20. The Grievor is seeking an order that the Employer award the Grievor a classified position at House 20. As an unclassified employee the Grievor was not afforded the opportunity to accept shift-work . . . . [5] The parties supplemented paragraph 11 of the particulars at the hearing, agreeing that the grievor was notified of the results of the September 2011 job competition shortly thereafter. [6] The parties agreed to treat as further particulars the factual assertions set out in a June 4, 2012 e-mail from the grievor to Ms. Dede Batson. The Employer accepted such particulars as proven fact for purposes of its preliminary motions. The grievor’s e-mail states in part as follows: . . . I’ve been working at Thistletown; TRE ADD for four years, as of August 8, 2012. I expressed interest in working at TRE ADD; house 20 for a classified position. As well I have requested a contract, and a 24/40 contract position. I was not granted the opportunity for any position at house 20, I was told because of operational needs, the needs were in the other houses. This was not reflected, I have noticed approximately seven staff-team members placed at house 20; Sherwin T., Frank B., Mark W., George B., Teresa D. Mandy F., as well there have been staff that have been approached that have declined and recently hired that will start in the near future. Theses (sic) positions for these mentioned staff all ranging from 24/40 contract, to contract lines, to classified positions and finally rotating of houses. One staff-team member; Melodie came from house 17 were (sic) she was doing a line and I was no longer given the shifts that I previously was doing. Lucy resigned and I stated my interest in the classified position. You mentioned that there was a position at house 20 and I applied for the competition. . . . I went through the completion (sic) process;. . . all through the process I stated my interest in house 20. The interview process where Nancy F., Michelle R., and you were facilitating, I stated that I was interested in house 20 and the reasons (sic). . . . I received notice from Nancy Friedman that I won the competition and that I was going to be placed at house 17, I expressed my interest at house 20 and Nancy insisted that I take the position at house 17. I called Sherry-Parker-Hilts and explained my concerns and she suggested that I speak with you and concluded that she was the one that would do the final placement of staff. I meet with you and you discussed operational needs, since that conversation I’ve noticed four staff-team members placed at house 20 and there are recently new hires for the house. . . . - 6 - I am in anticipation for a resolution to my concern, to be granted the same opportunity as all other employees at TRE ADD. I would like to be granted a classified position at house 20. THE ARGUMENT: [7] The Employer argued that the Board should dismiss the June 2012 grievance (“the grievance”) on the basis that the Union’s particulars disclose no prima facie case. It suggested that the test to be applied in deciding such motion is that articulated in Ministry of Government Services and OPSEU (Couture) GSB #2008-3329 (Dissanayake), where the Board stated: “In each case where a prima facie motion is made, the Board is required to determine whether the facts asserted, if accepted as true, are capable of substantiating the violation alleged.” (para 12) [8] In the Employer’s submission, the facts asserted by the Union here, even if accepted as true, cannot substantiate the violations alleged by the grievance. [9] The Employer addressed article 31A.15 of the collective agreement, referenced in the grievance. Counsel suggested that the said provision is clear that a number of criteria must be satisfied before a claim for conversion can be successfully advanced. She referred to the Board’s decision in Ministry of Government Services and OPSEU (Paolo/Nahm) GSB #2011-3339 (Briggs). The Employer argued that the particulars do not establish the elements necessary to substantiate a claim for conversion. Specifically, it suggested that they do not demonstrate that the grievor performed the “same” work on a full-time basis for eighteen consecutive months, or that there was a continuing need for the work in question to be done on a full-time basis. Accordingly in the Employer’s submission, even if the facts asserted by the Union are accepted as true, they do not form the basis upon which the alleged violation of article 31A.15 can be substantiated. [10] The Employer referred as well to the grievor’s claim of discrimination set out in the grievance. Counsel suggested that in order for the Union to demonstrate prima facie discrimination contrary to article 3 of the collective agreement, it must establish that the grievor is a member of a group protected by the Human Rights Code (“the Code”), that she was subjected to adverse treatment, and that a protected characteristic was a factor in such adverse treatment. Reliance was placed on Ministry of Community Safety and Correctional Services and OPSEU (Bonneveld) GSB #2010-1747 (Briggs). [11] In the Employer’s submission, the particulars do not assert membership in a group subject to the Code’s protection. Further, even if the grievor is a member of a group protected by the - 7 - Code, and even if one assumes for present purposes that she was subjected to adverse treatment, the particulars do not, in the Employer’s submission, establish that a protected characteristic was a factor in any alleged adverse treatment experienced. Rather, the Employer noted, while the Union alleged “personal animosity” between the grievor and her manager Ms. Batson, the Union’s particulars suggest that their relationship “deteriorated” when Ms. Batson “developed a romantic interest” in the grievor’s ex-partner. In the Employer’s submission, even if the Union’s particulars are accepted in their entirety as true, they do not establish a prima facie case of discrimination contrary to the collective agreement. [12] The Employer noted as well that the Union’s particulars assert that others were successful in securing employment opportunities in House 20 sought by the grievor. To the extent that the Union seeks to thereby advance a “general allegation of unfairness” by pursuing what Counsel characterized as a “me too grievance,” the Employer argued that the Union must establish the denial or abridgement of a right enjoyed by the grievor pursuant to the collective agreement, before this Board can take jurisdiction. It relied on the Board’s decisions in Ministry of the Environment and OPSEU (Dobroff), [2008] O.G.S.B.A. No. 73 (Dissanayake); Ministry of Labour and OPSEU (Anthony et al.) GSB #1999-1977 (Abramsky); Ministry of Community and Social Services and OPSEU (Pletikos) GSB #2011-0750 (Dissanayake); and Ministry of Community Safety and Correctional Services and OPSEU (May et al.) GSB #2001-1151 (Abramsky). [13] The Employer asked me to find that the Union’s particulars establish no prima facie case, and to dismiss the June 2012 grievance on that basis. [14] In the alternative, the Employer argued that the June 2012 grievance was filed well beyond the time limit set out in article 22.2.1 of the collective agreement which provides in part that “if an employee has a complaint, the employee shall meet . . . and discuss it with the employee’s immediate supervisor within thirty . . . days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee. . . .” [15] Counsel took the position that to the extent that the Union’s particulars specify the timing of any alleged “confrontations” with Ms. Batson, these occurred in July 2010, nearly two years before the grievance was filed, and then in November 2012, long after the filing of the grievance. [16] Particulars relating to the alleged denial of employment opportunities are clear, the Employer argued, that the grievor applied for a classified position in September 2011, and was - 8 - offered a position in House 17 rather than House 20 shortly thereafter. In the Employer’s submission, the events giving rise to the grievance “crystallized” at that time. [17] The Employer asked me to find that the June 2012 grievance was therefore filed outside of the time permitted under article 22.2.1 of the collective agreement. While the Employer accepted that I have discretion to extend time limits pursuant to section 48(16) of the Labour Relations Act, 1995, Counsel took the position that it would not be appropriate to do so here. The Employer relied upon the following authorities in support of such position: Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services and OPSEU (Monk) GSB #1995-1694 (Gray); Ministry of Community Safety and Correctional Services and OPSEU (Faulkner) GSB #2006-2093 (Petryshen); Ministry of Northern Development and Mines and OPSEU (Smith) GSB #2002-0243 (Mikus); Ministry of Community Safety and Correctional Services and OPSEU (St. Jean et al.) GSB #2001-1122 (Leighton); and Liquor Control Board of Ontario and OLBEU (Wicken) GSB #2216/97 (Knopf). [18] While the Union accepted that the question before me in determining the Employer’s prima facie case motion is as characterized by Employer Counsel, it impressed upon me the need to consider its particulars as a whole and to recognize that particulars are intended to provide only an “overview” of the facts upon which the Union intends to rely. [19] The Union acknowledged that the grievor does not meet the criteria for conversion of fixed-term positions under article 31A.15. In the Union’s submission, however, she was effectively thwarted in her ability to do so by virtue of the Employer’s discriminatory conduct. The Union argued that the grievor was subject to discrimination that resulted in her being “kept working in jobs that were not going to meet the required threshold for conversion.” It noted as well that the grievor applied for a Classified Child and Youth Therapist position in September 2011. Although she stated during the interview that she was only applying for a position at House 20, and although she placed first in the competition, she was offered a classified position in House 17 and the third place applicant was offered the position she sought in House 20. As further particularized, between the Fall of 2011 and June 2012, four staff members were placed in either “on-the-line” or classified positions at House 20. [20] The Union agreed with the Employer that the Board’s jurisprudence establishes that there must be a “hook in the collective agreement” before the Board can take jurisdiction. Counsel emphasized, however, that the Union does not advance a “me too” grievance here based merely on the fact that others were given certain employment opportunities. Rather, it takes the position - 9 - that the grievor’s contractual right to a workplace free from discrimination on the enumerated grounds was violated, and that such discrimination by the Employer “tainted her employment opportunities.” [21] The Union did not dispute the Employer’s characterization of the requisite elements to be established in substantiating a prima facie case of discrimination. It acknowledged that its particulars do not address the grievor’s membership in a protected group. Counsel suggested, however, that it is “self-evident” that the grievor is an African-Canadian woman. The Union asserted as well that she was subject to adverse treatment and referred in this regard to her “confrontations with Ms. Batson” and to the denial of employment opportunities as particularized. In the Union’s submission, the grievor’s race, colour, ancestry and gender were factors in such treatment. [22] The Union urged me to be mindful that racial and gender based discrimination can be subtle in nature, and may be revealed only through consideration of a pattern of conduct over a period of time. Counsel suggested that the particulars demonstrate that “throughout Ms. Batson’s time and particularly from the time that she became a manager with authority over the grievor,” the grievor was subject to adverse treatment in that she was allegedly placed in an unsafe work environment and was denied employment opportunities. Counsel argued that the grievor was denied her right to a workplace free of discrimination and that Ms. Batson was the “common thread throughout.” [23] In the Union’s submission, particulars do not constitute the Union’s entire case, and it should have the opportunity to call evidence through witnesses. It noted the importance of hearing the grievor testify about her experiences as an African-Canadian woman so as to understand “the nuances that racism plays in our society.” [24] The Union referred to the decision in Ministry of Attorney General and OPSEU (Evangelista et al), [2011] O.G.S.B.A. No. 88 (Harris) and urged me to accept the Board’s cautionary words that “in only the clearest of cases should the board decline to hear a matter before concluding it has no jurisdiction.” (para 12) It asked me to deny the Employer’s motion. [25] Turning to the Employer’s timeliness objection, the Union emphasized that discrimination may only become apparent where there has been a “buildup of events” taking place over a period of time. Such was the case here in the Union’s submission. The grievor applied for a position in House 20 in September 2011 and after being denied such opportunity, saw others “getting slotted into” House 20 between the Fall 2011 and June 2012 when the grievance was filed. That is - 10 - when the pattern emerged, and that is when the grievor could reasonably have understood that the Employer’s conduct formed the basis for a grievance. In any event, in the Union’s submission, this is a case where my discretion to extend time limits is appropriately exercised. It asked me to deny the Employer’s motion. Counsel referred to the following authorities: Hotel- Dieu Grace Hospital and O.N.A. (1997), 62 L.A.C. (4th) 164 (M. Picher); Ministry of Public Safety and Security and OPSEU (Patterson), [2003] O.G.S.B.A. No. 144 (Leighton) and Ministry of Community Safety and Correctional Services (O’Brien) GSB #2003-1881 (Leighton). [26] In Reply, the Employer noted that the Union raised the grievor’s gender, colour, ancestry and race for the first time in argument, and that there is no suggestion on the face of the grievance or in the particulars that these were factors in any alleged adverse treatment experienced by the grievor. Both Counsel agreed during argument that Ms. Batson is a “woman of mixed race.” The Employer argued that the particulars do not establish that the grievor’s gender, race, colour or ancestry was a factor in any alleged confrontation with Ms. Batson. Counsel further suggested that the Union’s particulars disclose little about employees who were placed in House 20, beyond the fact that these included both males and females. She noted that the particulars do not address the circumstances surrounding such placements. In the Employer’s submission, the Union asks me to infer that the grievor’s gender, race, colour or ancestry was a factor in any adverse treatment experienced, in the context of particulars that assert nothing more than a shared romantic interest between Ms. Batson and her. The Employer urged me to conclude that there are no facts set out in the particulars which demonstrate that a protected ground was a factor in the grievor’s treatment in the workplace. THE DECISION: [27] The June 2012 grievance, as addressed by Union Counsel in these proceedings, alleges that the Employer discriminated against the grievor on the basis of her gender, race, ancestry and colour contrary to article 3 of the collective agreement. The Union’s position is that because of such alleged discrimination, the grievor has been thwarted in her efforts to secure employment opportunities. The result of this, according to the Union, is that the grievor is not able to satisfy the criteria enumerated in article 31A.15 of the collective agreement for conversion of fixed term positions to positions in the Regular Service. Since the grievor’s failure to meet such criteria has allegedly been “tainted by the Employer’s discrimination,” the grievance seeks an order that the grievor “be classified.” - 11 - [28] The Board in Ministry of Community Safety and Correctional Services (Bonneveld), supra, considered the decision of the Ontario Court of Appeal in Re Peel Law Association v. Pieters 2013 ONCA 396. At paragraph 44, the Board quoted from the Court’s decision and stated as follows: At paragraph 56 in the Court of Appeal Decision in Peel Law Association (supra), the Court was reviewing with favour comments made in an earlier matter. It was said: Lang, J.A., in this court’s decision in Shaw, at para. 14, said the following three elements were required to establish a prima facie case: 1. That he or she is a member of a group protected by the Code; 2. That he or she was subjected to adverse treatment; and 3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment. [29] I accept that for the Union to establish a prima facie case of discrimination here, its unchallenged particulars must demonstrate that the grievor is a member of a group protected by the Code, that she was subjected to adverse treatment, and that her gender, race, ancestry or colour was a factor in such alleged adverse treatment. [30] Although not stated in the Union’s particulars, there is no dispute that the grievor is an African-Canadian woman, and a member of a group protected by the Code. [31] The Union provided particulars of “confrontations” between the grievor and Ms. Batson and of the “denial of employment opportunities” and suggested that these demonstrate that the grievor was subject to adverse treatment in the workplace. The Employer did not suggest otherwise, but rather took the position that even if that is assumed for present purposes to be so, its motion must nonetheless be upheld. I proceed therefore on the basis that the first two of the three requisite elements of a prima facie case of discrimination are established. [32] Where the parties fundamentally disagreed was whether the particulars demonstrate that the grievor’s gender, race, colour or ancestry was a factor in any adverse treatment to which she was subjected. [33] The particulars provided by the Union address in part “confrontations” between the grievor and Ms. Batson. They state that on or around July 2010, the grievor was told by Ms. Batson that she was to leave the alarm in the house when she went outside, but that she later discovered that an unidentified staff member who took the alarm outside was not so “reprimanded.” They state as well that Ms. Batson told the grievor at an unspecified time that her office door did not lock, - 12 - but that when a client became very aggressive, a male staff member locked the door. The particulars further state that in November 2012, months after the filing of this grievance, Ms. Batson aggressively ripped a note written by the grievor. [34] The Union’s particulars address as well the denial of employment opportunities. They state that the grievor expressed interest in a full-time position and asked to be placed “on-the-line” in House 20 in 2011, but was told at an unspecified time that there were no positions available. The particulars further state that the grievor expressed interest in a classified position at House 20, a contract or a 24/40 contract, but was not granted any such opportunity. According to the particulars, over an unspecified period of time, six named employees, both men and women, were placed in a range of positions in House 20. The Union’s particulars note as well that the grievor’s shift assignment was affected when an employee named Melodie “came from house 17.” [35] The particulars also address the grievor’s application for a classified Child and Youth Therapist position in September 2011. She was interviewed by a panel comprised of Ms. Batson, Michelle Rashid, and either “Nancy F.” according to the grievor’s June 4, 2012 e-mail, or Sherry Parker-Hilts, according to the Union’s particulars. The grievor advised that she was only applying for a position at House 20. The grievor placed first in the competition, but was offered a position at House 17, while the third place applicant was offered a position at House 20. Ms. Sherry Parker-Hilts, whose position was not identified, told the grievor that “she was the one that would do the final placement of staff.” The grievor met with Ms. Batson who “discussed operational needs.” [36] According to the Union’s further particulars, at unspecified points between the Fall of 2011 and June 2012, four unidentified staff members were placed in “on-the-line” or classified positions at House 20 and there were unidentified “new hires” for the house. [37] I have considered the decision in Ministry of Community Safety and Correctional Services (Bonneveld), supra, relied upon by the Employer. The Board there upheld the Employer’s motion that the Union failed to establish a prima facie case, and dismissed the grievance before it alleging that the Employer discriminated against the grievor due to his age in failing to schedule him for certain shifts. Particulars provided by the Union there asserted that the grievor was not offered available shifts while his colleague was called for many shifts. The particulars further stated that the grievor was “substantially older than” such colleague and that younger staff members had been assigned overtime while the grievor was not called in, without a bona fide - 13 - business reason. The Union urged the Board to find that the facts set out in its particulars gave rise to “the inference that a possible reason the grievor was not scheduled to work was because of his age.” (para 27) [38] In upholding the Employer’s motion, the Board concluded in part as follows: (T)here is nothing in the particulars that leads to a finding that the grievor was discriminated against because of his age. I accept that Ms. S. V. and other Cooks are younger than the grievor. But the fact that every other Cook is younger than the grievor is not, in and of itself, proof of discrimination. The Union stated that the grievor is “substantially older” than Ms. S. V. and that other younger members of the kitchen staff have been assigned overtime work. Again, assuming both of those assertions to be true for the purposes of this motion, they do not establish that age was a factor in the assignment of part time work. According to the particulars every other part time cook was younger or substantially younger than the grievor. Assignment of shifts to others in a classification – all of whom are younger – is not, in and of itself, discrimination. (paras 51 - 53) [39] The Union’s particulars here, including for present purposes those relating to alleged post- grievance conduct, similarly fail in my view to demonstrate that the grievor’s gender, race, colour or ancestry was a factor in any adverse treatment she experienced. [40] In so concluding, I have considered the Union’s argument that discrimination on the basis of race or gender may be subtle in nature, and that there may be no overt conduct which can be relied upon to substantiate such a claim. I accept this to be true. This was noted by the Board in Ministry of the Environment (Dobroff), supra, a case in which anti-union animus was in part alleged. The Board there stated as follows: I agree that an admission or a “smoking gun” would rarely be found in anti-union animus cases or cases of discrimination on the basis of a prohibited ground. Thus in appropriate circumstances, anti-union animus may be inferred from circumstantial evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98, proof is nevertheless necessary. Anti-union animus will not be inferred merely because a grievor believes that it exists. At para 17-18, Mr. Gray wrote: (17) I accept as a general matter that racism “is out there,” as the grievor put it at one point. I agree with union counsel’s submission that racism often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it…. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, - 14 - that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. (para 43) [41] I am mindful as well of the comments of the Court of Appeal in Re Peel Law Association, supra, as quoted in Ministry of Community Safety and Correctional Services (Bonneveld), supra, as follows: Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondent’s state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondent’s evidence is often essential to accurately determine what happened and what the reason for a decision or action were. (para 38) [42] In reaching my conclusion, I have also considered the Board’s decision in Ministry of Attorney General (Evangelista), supra, relied upon by the Union. I recognize that the Employer before me here accepts as true the Union’s particulars for purposes of this motion while the Board in Evangelista was asked to “weigh the quality of the Union’s evidence.” (para 11) I nonetheless agree with the Union that a cautious approach is appropriate here in deciding the Employer’s motion. Indeed, in determining a prima facie case motion in the context of a grievance alleging discrimination such as that before me, it may well be that the “bar must be set low for the grievor” as argued by the Union in Bonneveld, supra. (para 22) [43] That said, the Union has had the opportunity to put its best factual case forward at this point through unchallenged particulars and I have considered such particulars in their entirety. I note specifically the assertion of a shared romantic interest between the grievor and Ms. Batson. I have considered the assertion that others, largely unidentified, have accessed employment opportunities unsuccessfully sought by the grievor. I note that where those employees were identified, they include males and females. Further, I have considered that the grievor was offered a position in House 17, but not in House 20, after having been interviewed by Ms. Batson, Ms. Rashid and either “Nancy F.” or Sherry Parker-Hilts in or around September 2011. [44] The Union essentially asked that I infer that the grievor’s race, ancestry, colour or gender was a factor in any alleged adverse treatment, without in my view, particularizing a factual basis upon which I can do so. Notably, beyond a general assertion that the grievor will give evidence of her experience as an African-Canadian woman so as to understand “the nuances that racism - 15 - plays in our society,” the Union described no further facts which it would seek to adduce in evidence in support of the grievance if the Employer’s motion is denied. [45] Accordingly, even if the “cautious” approach urged upon me by the Union is taken, and even if the “bar” is “set low” for the Union in the present circumstances, I conclude that the Union’s particulars do not demonstrate a prima facie case of discrimination as alleged. Accordingly, the Employer’s motion is upheld, and the June 2012 grievance is dismissed on the basis that the Union’s particulars disclose no prima facie case of a violation of the collective agreement. [46] Given such conclusion, I need not consider the Employer’s alternate position that the June 2012 grievance should be dismissed as untimely. [47] For the reasons set out herein, the June 2012 grievance is dismissed. [48] I retain jurisdiction, however, with respect to the February 25, 2013 grievance and the hearing of such matter will proceed as scheduled. Dated at Toronto, Ontario this 7th day of May 2014 Mary Lou Tims, Vice-Chair