Alizadeh-Ebadi v. Manitoba Telecom Services Inc.

Alizadeh-Ebadi v. Manitoba Telecom Services Inc.
Collection
Canadian Human Rights Tribunal
Date
2017-11-07
Neutral citation
2017 CHRT 36
File number(s)
T1873/10312
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Decision status
Final
Grounds
National or Ethnic Origin
Race
Religion
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
36
Date:
November 7, 2017
File No.:
T1873/10312
Between:
Kouroush Alizadeh-Ebadi
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Manitoba Telecom Services Inc.
Respondent
Decision
Member:
Edward P. Lustig
Table of Contents
I. Background 1
II. Facts 7
Event 1: Remarks made by David Atwell 9
Event 2: Denial of a second computer 15
Event 3: Denial of training requests 17
Event 4: Use of the “nicknames” “Crash” or “Kourash” 17
Event 5: Comments about Mr. Alizadeh-Ebadi’s trips to Turkey and his work ethic 19
Event 6: Relegation to Service Desk 21
Event 7: Hostile Work Environment/TEAM meeting 22
Event 8: Denial of Promotion to Senior Client Support Specialist (Site Prime) position 24
Event 9: Failure to provide accommodation for a disability through a gradual return to work program 2007-2009 30
Event 10: Treatment on return to work in 2009 32
Event 11: MTS internal investigation and report 37
III. Legal Framework-Liability 41
IV. Issues 46
V. Analysis-Liability 47
A. Issue 1 47
B. Issues 2 and 3 51
Event 1: Remarks made by David Atwell 51
Event 2: Denial of a Second Computer 52
Event 3: Denial of training requests 53
Event 4: Use of the “nicknames” “Crash” or “Kourash” either section 53
Event 5: Comments about Mr. Alizadeh-Ebadi’s trips to Turkey and his work ethic 54
Event 6: Relegation to Service Desk 55
Event 7: Hostile work environment/TEAM meeting 55
Event 8: Denial of Promotion to Senior Client Support Specialist (Site Prime) position 56
Event 10: Treatment on return to work in 2009 57
Event 11: MTS Internal Investigation and Report 57
VI. Decision 59
VII. Legal Framework-Remedies 59
VIII. Analysis-Remedies 61
C. Issue 4 61
IX. Orders 65
I. Background
[1] Mr. Kouroush Alizadeh-Ebadi filed a complaint with the Canadian Human Rights Commission (the Commission) dated May 30, 2010 against Manitoba Telecom Services Inc. (MTS), alleging that it had discriminated against him while he was employed by MTS between mid-2001 and April 2009 on the prohibited grounds of race, national or ethnic origin and religion under section 3(1) of the Canadian Human Rights Act (CHRA) by engaging in the discriminatory practices of adverse differentiation and harassment that he described in his complaint, contrary to sections 7(b) and 14(1)(c) of the CHRA.
[2] Sections 3(1), 7(b), 14(1)(c), 41(1)(e), 49(1) and (2), 50(1), 53 and 65(1) and (2) of the CHRA are relevant to this case and provide as follows:
Prohibited grounds of discrimination
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Employment
7 It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
Harassment
14 (1) It is a discriminatory practice,
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
Commission to deal with complaint
41 (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
Request for inquiry
49 (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.
Chairperson to institute inquiry
(2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the complaint requires the inquiry to be conducted by three members.
Conduct of inquiry
50 (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
Complaint dismissed
53 (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
Complaint substantiated
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
Special compensation
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
Interest
(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.
Acts of employees, etc.
65 (1) Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization.
Exculpation
(2) An act or omission shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof.
[3] By its letter dated October 5, 2012, the Commission requested the Canadian Human Rights Tribunal (the Tribunal) to institute an inquiry into the complaint under s. 49 of the CHRA.
[4] The hearing of the case was originally scheduled to start in Winnipeg on the morning of June 18, 2014. The day before the hearing was to start, Mr. Alizadeh-Ebadi filed an amended Statement of Particulars to add new language to paragraph 17 of his Statement of Particulars that had been filed on June 12, 2013. The new language specifically referred to the prohibited ground of disability, which was not previously cited by Mr. Alizadeh-Ebadi in his complaint. It covered a new allegation not included in his complaint alleging adverse differentiation on the basis of “race and prior history of disability”, through the failure by MTS to accommodate Mr. Alizadeh-Ebadi with a gradual return to work program, as a result of injuries sustained in a car accident that was not his fault outside of the workplace in 2007, that resulted in him being away from work until 2009.
[5] This proposed amendment was objected to by MTS, on a preliminary basis, at the outset of the hearing on June 18, 2014. MTS submitted that this allegation and the ground of disability was not mentioned in Mr. Alizadeh-Ebadi’s complaint and, as such, was not investigated by the Commission and therefore was not part of what was referred by it to the Tribunal for an inquiry. MTS submitted that it was therefore not properly before the Tribunal for adjudication as part of the inquiry into the complaint requested by the Commission.
[6] A recess took place to allow the parties to discuss this matter further with each other. After resuming the hearing later that morning Mr. Alizadeh-Ebadi, on consent of MTS, requested an adjournment of the case to allow him to return to the Commission for the purpose of requesting the Commission to consider a further complaint respecting the new allegation referred to in the proposed amendment to paragraph 17, including the prohibited ground of disability. I granted Mr. Alizadeh-Ebadi’s request for an adjournment sine die.
[7] A letter was sent to the Tribunal by counsel for Mr. Alizadeh-Ebadi dated November 7, 2014 respecting the status of the case. In the letter counsel stated that Mr. Alizadeh-Ebadi “...has filed an additional complaint with the Canadian Human Rights Commission (“CHRC”) relating, inter alia, to allegations that MTS discriminated against him on the basis of a disability...” The letter referred to the fact that the Commission was reviewing the matter in relation to the possible application of section 41(1)(e) of the CHRA and that an investigation by the Commission of the additional complaint would only occur if the section 41 issue was resolved.
[8] Subsequently, the Commission decided not to deal with the additional complaint of Mr. Alizadeh-Ebadi, on the basis that it was out of time under section 41(1)(e) of the CHRA. As such, the additional complaint was not investigated or referred to the Tribunal for an inquiry. There was no judicial review of the Commission’s decision to not deal with the additional complaint. Following the Commission’s decision, Mr. Alizadeh-Ebadi filed a re-amended Statement of Particulars removing from paragraph 17, as amended, the language referring to the new allegation and the prohibited grounds of both race and disability related thereto. The three versions of Paragraph 17, in Mr. Alizadeh-Ebadi’s original Statement of Particulars, in his proposed Amended Statement of Particulars, and in his Re-amended Statement of Particulars read as follows:
1. Original Statement of Particulars
Between 2007 and early 2009, the Complainant was on an extended sick leave arising out of a serious motor vehicle accident that was not his fault. While he was away, his then TEAM leader, Brenda Coutts, removed his computer without saving the contents of the computer on a compact disk. When the Complainant expressed his dissatisfaction with this upon his return to work, Ms. Coutts told him “shit happens - suck it up”. When he took issue with this response, Ms. Coutts replied that he was “bordering on insubordination.” She later apologized for her comments.
2. Proposed Amended Statement of Particulars
Between 2007 and early 2009, the Complainant was on an extended sick leave arising out of a serious motor vehicle accident that was not his fault. MTS required that the Complainant only return to work after he had fully recovered from the accident. MTS would not permit a gradual return to work or any other meaningful accommodation. This treatment by his supervisors, including Wayne Horseman and Brenda Coutts, was different than the treatment provided to other employees returning to work from a leave of absence which the Complainant attributes to his race and prior history of disability. While he was away, his then TEAM leader, Brenda Coutts, removed his computer without saving the contents of the computer on a compact disk. When the Complainant expressed his dissatisfaction with this upon his return to work, Ms. Coutts told him “shit happens - suck it up”. When he took issue with this response, Ms. Coutts replied that he was “bordering on insubordination.” She later apologized for her comments.
3. Re-amended Statement of Particulars
Between April 26, 2007 and February 2009, the Complainant was on an extended sick leave arising out of a serious motor vehicle accident that was not his fault. From June 2007 to February 2009 this absence was without pay from MTS. The Complainant received income replacement indemnity benefits from Manitoba Public Insurance Corporation (“MPI”) from May 3, 2007 until April 11, 2008, Throughout the Complainant’s absence from MTS, the Return to Work Coordinator, Des Hathaway, and MTS exchanged communication with respect to the Complainant’s return to the workplace. While he was away, his then TEAM leader, Brenda Coutts, removed his computer without saving the contents of the computer on a compact disk. When the Complainant expressed his dissatisfaction with this upon his return to work, Ms. Coutts told him “shit happens - suck it up”. When he took issue with this response, Ms. Coutts replied that he was “bordering on insubordination.” She later apologized for her comments.
Further, it should be noted that Part B of Mr. Alizadeh-Ebadi’s original Statement of Particulars was never amended and has always read as follows, without any reference to the prohibited ground of disability:
B. Complainant’s Position on Legal Issues
1. Did MTS fail to provide a harassment free work environment?
The Complainant’s position is that MTS failed to provide a harassment free work environment.
2. Did the Complainant receive adverse differential treatment which adversely impacted his career at MTS?
The Complainant asserts that he was treated in a differential manner on the basis of his race, national/ethnic origin and religion and that his career was therefore adversely impacted.
[9] The hearing was resumed and held in Winnipeg during the weeks of August 2nd and November 7th, 2016; and during the week of February 13th, 2017, and on May 19th, 2017. The evidence phase of the hearing was completed on February 17th, 2017. On May 19th, 2017 the parties made oral arguments, having agreed to exchange with each other and file with the Tribunal their written arguments on May 15th.
II. Facts
[10] Mr. Alizadeh-Ebadi self identifies as an ethnic Azerbaijani (Azeri) Turk. He was born in the City of Urmia in the Province of West Azerbaijan, in Iran. His religious background is Islam. While in Iran he and his family were persecuted by the Farsi majority on account of his Turkish ethnicity. He moved from Iran to Turkey when he was 19 years old. In 1989 he moved to Canada and became a Canadian citizen in 1992.
[11] Mr. Alizadeh-Ebadi was hired by MTS in March of 2000 as a co-op student from the University of Manitoba. He was initially hired to a term position and thereafter became a full time employee of MTS, working in its Corporate Information Systems department (CIS) later renamed the Information Technology Service Management department (ITSM). From March 2000 to December 2000 Mr. Alizadeh-Ebadi worked as a Local Area Network (LAN) Administrator. From December 2000 to April 2001 he was a Technical Support Representative. From April 2001 to July 2009 he was an Information Services Specialist, later renamed a Client Support Specialist (CSS) “tier 2”. At all material times, he was the only Muslim in the ITSM department but there were employees of various races, ethnicities and religions there then. At all material times Mr. Alizadeh-Ebadi was a member of the Telecommunications Employees’ Association of Manitoba (TEAM).
[12] In the “tier 2” CSS role Mr. Alizadeh-Ebadi provided support to MTS employees experiencing more complex problems with their computers than could be handled at the Service Desk by the front line “tier 1” CSSs.
[13] Mr. Alizadeh-Ebadi had a car accident outside of work in November of 2001 that was 100% not his fault. As a result of the injuries he sustained he was off work until January of 2002 and was then on a graduated return to work program, for the most part working half days, until May of 2003 when he returned to regular work hours.
[14] Mr. Alizadeh-Ebadi had another car accident outside of work that was also 100% not his fault in April of 2007. As a result of the injuries he sustained in this accident he was off work until he returned to work on February 23, 2009. Mr. Alizadeh-Ebadi was not on a graduated return to work program following this accident. From June 2007 to February 2009, this absence was without pay from MTS but Mr. Alizadeh-Ebadi did receive income replacement benefits through the Manitoba Personal Injury Protection Plan.
[15] After he returned to work he became ill on March 23, 2009 and, as a result, was off work on a leave of absence for illness until he resigned from MTS as at July 25, 2009.
[16] MTS was acquired by BCE Inc. in March of 2017 before the last week of the hearing and is now known as Bell MTS. It is the primary telecommunications company in Manitoba and employs several thousand employees in Manitoba.
[17] There is a series of events (the Events) during Mr. Alizadeh-Ebadi’s career at MTS from about 2001 until 2009 that evidence was presented about at the hearing that Mr. Alizadeh-Ebadi feels establishes that MTS engaged in the discriminatory practices against him on the prohibited grounds, as alleged in his complaint. In his view, these Events ultimately caused him to suffer anxiety, nervousness and depression that resulted in him resigning from MTS, as of July 25, 2009.
[18] Fourteen witnesses, who were all employees or former employees of MTS at some time during Mr. Alizadeh-Ebadi’s career with MTS, testified at the hearing about these Events. The witnesses were as follows: For Mr. Alizadeh-Ebadi, in addition to himself, Neil Wyrchowny, Ernest Desmarais, Qwin DeBrant and Ryan Bird testified at the hearing. For the Respondent, David Atwell, Stephen Grant, Glen Fryatt, Ryan Workman, Brenda Coutts, Brian Elliott, Rejean David, Caroline Taylor and Don Rooney testified.
[19] Each of the Events are described by the following descriptive captions below, and will be elaborated on in further detail herein:
Remarks made by David Atwell
Denial of a second computer
Denial of training requests
Use of the “nicknames” “Crash” or “Kourash”
Comments about Mr. Alizadeh-Ebadi’s trips to Turkey and his work ethic
Relegation to service desk
Hostile work environment/TEAM meeting
Denial of Promotion to Senior Client Support Specialist position
Failure to provide accommodation for a disability through a gradual return to work program 2007-2009
Treatment on return to work in 2009
MTS Internal Investigation and Report
Event 1: Remarks made by David Atwell
[20] David Atwell was a Supervisor in ISTM in the Hardware and Software Distribution division during part of Mr. Alizadeh-Ebadi’s career at MTS. He didn’t actually directly supervise Mr. Alizadeh-Ebadi, as he directly supervised employees who worked in the Hardware and Software Distribution division that provided hardware support to employees of MTS. Mr. Alizadeh-Ebadi worked in the Workstation (Desktop) LAN Support division that, as stated, provided software support to computer users and was directly supervised by Neil Wyrchowny until 2003 and thereafter by Brenda Coutts (and by Brian Elliott in Brenda Coutts’ absence) as his supervisors or “Team Leads”.
[21] The two divisions, while separate, fell under one Director. During the early part of the period of the complaint until about 2003 the Director was Ken Barchuck. He was followed by Rob Pettit until about 2005 who was then followed by Wayne Horseman. The two divisions had various interactions with each other in serving the information system technology needs of MTS employees. David Atwell thus interacted in the workplace with Mr. Alizadeh-Ebadi and they communicated with each other, from time to time, for both work related reasons and for casual reasons, such as breaks in the cafeteria for coffee and meals. MTS had several workplace locations in Winnipeg and both Mr. Alizadeh-Ebadi and David Atwell moved between some of these workplaces during the term of this complaint.
[22] I accept the evidence at the hearing from Mr. Alizadeh-Ebadi and other witnesses that David Atwell made disparaging and offensive remarks to or about Mr. Alizadeh-Ebadi, including remarks following the tragic events of the 9/11 terrorist attack, that suggested that Mr. Alizadeh-Ebadi was a member of Al-Qaeda and a terrorist.
[23] The exact words that were used, the frequency that the remarks were made, the duration that the remarks continued for and whether management of MTS was aware of them, were the subject of varying accounts given by different witnesses. A number of the witnesses testified that, as a great deal of time had elapsed since the events took place, it was difficult for them to remember some things with complete clarity or certainty.
[24] I find, on the evidence. that around the time of 9/11 and for a period thereafter, David Atwell made remarks in the workplace to or about Mr. Alizadeh-Ebadi along the lines of “Kouroush when are you going to show us your Al -Qaeda membership card?” (on several occasions); and “we better check Kouroush’s lunch to see if there is a bomb in there”; and “don’t get Kouroush angry or he will fly a jet into a building”; and that Kouroush was a “sleeper cell”; and that it would be best if “we bombed the Middle East back into the Stone Age”. In addition to David Atwell making these remarks directly to Mr. Alizadeh-Ebadi, some of these remarks were also made in front of other employees and were known by a number of employees to have been made by David Atwell.
[25] David Atwell claimed at the hearing that he didn’t remember making the remarks to Mr. Alizadeh-Ebadi described in paragraph 24 above, as a result of certain memory deficiencies. He admitted that if other witnesses who gave evidence at the hearing, such as Neil Wyrchowny, said that he had made some of those remarks (like the Al-Qaeda remarks in particular) that he probably did make those remarks. He also admitted that it was possible that he made some of the other remarks referred to in paragraph 24 above. He admitted that it was wrong for him to have made those remarks; that he understands that the remarks were hurtful to Mr. Alizadeh-Ebadi; and that he is sorry for having made the remarks and for hurting Mr. Alizadeh-Ebadi. He apologised to Mr. Alizadeh-Ebadi at the hearing as follows:
“Mr. Ebadi, I know the things I said back then were hurtful and wrong. And I would like to apologize to you and I would like to sincerely ask for your forgiveness if you can find it. If you can’t, I completely understand that, but I would like to apologize to you personally for that time in my life and yours.”
After making the above apology at the hearing in examination in chief, he later also stated as follows in response to questions in his cross examination:
“I admitted yesterday that the comments I made were inappropriate, were wrong, were hurtful. I stand by that apology and I hope that Kouroush can accept my apology. I hope that he can find it in his heart to forgive me at some point in his life, but again, I understand if he can’t. I’m not disputing that that was wrong.”
[26] MTS stated in its submissions that “MTS does not dispute that in the days following 9/11 and for a time thereafter that ended no later than 2003 ( the “Impugned Period”), Mr. Atwell made inappropriate comments to Mr. Alizadeh-Ebadi based on his ethnicity. MTS does not dispute that such comments amount to harassment under the Act.” Further it also stated that “...the reason that we have admitted harassment is because there are five or six comments about an Al-Qaeda card and I believe one about a bomb being brought to work by Mr. Alizadeh-Ebadi in the wake of 9/11, a very sensitive time. Those five or six comments at that time, constitutes harassment, we admit that. How far past that event, that is for the Tribunal to determine. We are not admitting anything further.”
[27] I accept the evidence given at the hearing that for a period of time David Atwell also regularly made derogatory and belittling comments, some of which were racist, about other people in the workplace. These comments included doing work “on Indian time”, suggesting laziness in relation to an employee who was First Nations and comments to a Mennonite employee suggesting hypocrisy in the Mennonite teachings and practices in relation to liquor consumption.
[28] There is no need to go into the further detail about the derogatory comments made by David Atwell about other people, as this case relates to Mr. Alizadeh-Ebadi, however, the facts are noted here for contextual purposes. David Atwell and many of the other witnesses at the hearing testified about his past inappropriate behaviour at MTS invoking descriptions of David Atwell as an “equal opportunity jerk” and a “junior high bully” who would then regularly making ethnic remarks and other negative comments in the workplace that he considered to be “jokes” as part of a “locker room” atmosphere that existed then at MTS.
[29] There was evidence from David Atwell and other witnesses that at that time he was loud, abusive and vulgar; that he would pick a target like Mr. Alizadeh-Ebadi and, if he got a rise, he would go after that person; and that he regularly made “jokes” about other people’s ethnic backgrounds and race anywhere from 4 to 12 times a day. David Atwell stated in his evidence that he was then “blissfully unaware of what he was doing and how it was affecting his co-workers.”
[30] In his evidence, David Atwell explained that he came from a military background. He was a member of the Canadian Army Reserves for 31 years. He retired as a Lieutenant Colonel in 2013. He was in command of the Fort Garry Horse Regiment in Winnipeg at the time of the 9/11 terrorist attack and trained and supervised many of the soldiers from Winnipeg who served in Afghanistan. He explained that his behaviour at MTS at the time of 9/11 and for a period thereafter, until he started to change with the help of mentoring by Wayne Horseman, was in part based upon this regimented military background and in part based upon personal problems he was having away from work and at home.
[31] I find, on the evidence, including Mr. Alizadeh-Ebadi’s evidence, that the remarks by David Atwell referenced in paragraph 24 above were made because of Mr. Alizadeh-Ebadi’s race, national or ethnic origin or religion and that they were serious, persistent and deeply hurtful to Mr. Alizadeh-Ebadi who complained about them to David Atwell and others.
[32] Neil Wyrchowny, who witnessed the “Al Qaeda membership card” remarks, told Mr. Atwell, at the time, that those remarks were completely inappropriate and that he shouldn’t be making remarks like that. Mr. Atwell laughed off Neil Wyrchowny’s admonition about his remarks and continued his negative behaviour for some time thereafter, despite knowing that Mr. Alizadeh-Ebadi objected to the remarks.
[33] Neil Wyrchowny did not report the “Al Qaeda” remarks to his supervisor Ken Barchuck or anyone else above him in management at MTS at the time because he felt that it would not make any difference if he did, given his view of management’s indifferent attitudes about such things then.
[34] There was no evidence that any written complaint was made to MTS management concerning David Atwell’s disparaging comments and behaviour towards Mr. Alizadeh-Ebadi prior to the internal complaint in 2009 that resulted in the Taylor internal MTS investigation discussed later in this decision, even though a number of Mr. Alizadeh-Ebadi’s colleagues knew about the comments and knew that the comments were not appreciated by Mr. Alizadeh-Ebadi. There was evidence that management did discipline other employees, including Neil Wyrchowny, on occasions when they actually received written complaints about other employees’ inappropriate behaviour that was contrary to MTS’s Respectful Workplace Policy in effect at the time.
[35] There was, however, evidence that management of MTS knew or ought to have known about David Atwell’s behaviour towards Mr. Alizadeh-Ebadi at the time the remarks were being made. In fact, David Atwell conceded in his cross examination that management “should have been aware”. Stephen Grant, a credible witness called by MTS, testified that David Atwell’s inappropriate actions “more than likely would have been known to management”. Moreover, there was evidence that after Rob Pettit was replaced by Wayne Horseman in around 2005, Mr. Horseman mentored David Atwell in helping him to change his behaviour, suggesting that he knew that David Atwell’s behaviour in the workplace needed to change. I accept the evidence from MTS’ own witnesses that MTS knew or should have known about David Atwell’s harassing behaviour towards Mr. Alizadeh-Ebadi at the time as well as his intolerant attitude toward him because of his race, national or ethnic origin or religion, long before the internal investigation in 2009 by MTS.
[36] I find on the evidence that it is probable that the frequency and persistence of hurtful comments and behaviour towards Mr. Alizadeh-Ebadi by David Atwell based on his race, national or ethnic origin or religion was not limited to one or two or three specific instances such as the Al-Qaeda/terrorist card comments. It was more frequent and persistent than that, particularly given David Atwell’s own evidence about the frequency of his ethnic comments generally in paragraph 29 above, as well as Mr. Alizadeh-Ebadi and other witnesses’ evidence about the frequency of comments to Mr. Alizadeh-Ebadi specifically.
[37] While the open, direct, explicit racist or ethnic remarks by David Atwell about Mr. Alizadeh-Ebadi being a member of Al Qaeda etc., as referred to in paragraph 24 above, appear to have stopped by sometime in 2003, I believe that David Atwell probably continued his bad behaviour to Mr. Alizadeh-Ebadi for some time after because at that time David Atwell was intolerant of his race, national or ethnic origin or religion.
[38] I believe that David Atwell, by his own admissions about his behaviour generally at that time regarding making ethnic “jokes” frequently in the workplace and based upon his apology at the hearing, was then a racist and did not change or discontinue his offensive remarks and behaviour to Mr. Alizadeh-Ebadi and others until some time later.
[39] Exactly when that change started to take place was not absolutely clear from the evidence. Mr. Alizadeh-Ebadi testified that the negative behaviour by David Atwell to him continued for a very long time after the events of 9/11 although he gave few specifics besides the racist comments referred to in paragraph 24 above and the Events involving David Atwell related to the denial of a second computer and the training on the Win2K project and the use of the name “Crash” or “Kourash” described later in this decision. There is no record of any racist comments by David Atwell either in the minutes of the TEAM union meeting in 2005, discussed later in this decision or in Mr. Alizadeh-Ebadi’s comments about the workplace in his performance reviews (PP&Rs) that took place in 2004, 2005 or 2006.
[40] There was a change in circumstances organizationally around 2003 that limited the verbal interactions between the David Atwell and Mr. Alizadeh-Ebadi. Rob Pettit retired sometime in the first half of 2005 and was replaced by Wayne Horseman who began to mentor David Atwell to help him change his behaviour. One of Mr. Alizadeh-Ebadi’s witnesses testified that the harassing behaviour by David Atwell to Mr. Alizadeh-Ebadi continued until 2010 but that does not seem to be possible. A number of witnesses for both sides place the date of the change in David Atwell’s behaviour some time in around 2004. My sense is that as of that date, or sometime shortly thereafter, David Atwell stopped harassing Mr. Alizadeh-Ebadi.
[41] A number of witnesses who testified about how deplorable David Atwell’s behaviour was during the earlier part of the term of this complaint also testified that David Atwell was now a changed person and doesn’t behave the way he used to and hasn’t for some time. This was also David Atwell’s evidence about himself. It is to be hoped that his apology and his regret for his past behaviour towards Mr. Alizadeh-Ebadi as expressed at paragraph 25 above is genuine as is his claim that he is a changed person but still in the process of continuing to try to be a better person.
[42] There was no evidence that any other person at MTS made disparaging racial, ethnic or religious remarks to or about Mr. Alizadeh-Ebadi during his employment. Unfortunately, Mr. Alizadeh-Ebadi was hurt by the intolerant remarks he suffered at the hands of David Atwell, based upon Mr. Alizadeh-Ebadi’s race, national or ethnic origin or religion. I accept the evidence of David Atwell and Stephen Grant, who were both MTS’s own witnesses, concerning MTS’ knowledge of David Atwell’s behaviour at paragraph 35 above. That evidence relates to a period of time when no action was taken by MTS to stop David Atwell’s behaviour to Mr. Alizadeh-Ebadi--well before the internal investigation of David Atwell’s comments and behaviour by MTS in 2009.
Event 2: Denial of a second computer
[43] Soon after Mr. Alizadeh-Ebadi became a permanent employee in June of 2001 he requested a second computer to do various tasks including testing new software systems and doing research for MTS and for educational purposes to assist him in maintaining his important Microsoft Certified Systems Engineer Certificate (MCSE). The above noted testing and research tasks were more efficiently done on a separate computer from the computer he was using to do his essential work of responding to work orders (“tickets”) to try to solve MTS employee computer problems. Many of the other CSS’s had second computers for these purposes.
[44] A request for a second computer was made on Mr. Alizadeh-Ebadi’s behalf by Neil Wyrchowny to David Atwell, who controlled the issuance of hardware including second computers. The request was in accordance with the proper protocol for such requests as testified to by David Atwell --i.e. a request by the Team Lead. The request was for a used or recycled computer that was available, not for a new computer. MTS sold or disposed of its recycled computers but there were many at any time that were kept in storage pending sale or other disposal.
[45] David Atwell refused the request from Neil Wyrchowny and subsequent requests made by Mr. Alizadeh-Ebadi for a second computer. Various reasons were given for the refusal of the request to have a second computer, including directions from management to not provide second computers unless a solid business case was made and also to set an example.
[46] David Atwell testified that the business case was not provided in enough detail, although the evidence was that Neil Wyrchowny requested it for Mr. Alizadeh-Ebadi in an email to David Atwell for what appears to be a legitimate business reasons--maintaining his valuable MCSE certification.
[47] There were as many as 200-300 recycled computers in storage available at the time of the request. The evidence was that unlike Mr. Alizadeh-Ebadi, many of his co-workers simply took second computers from storage and used them without asking David Atwell and without encountering any problem. One witness testified the David Atwell had actually told him to “just...take one.” Neil Wyrchowny couldn’t remember anyone else actually being refused a second computer when requested by a supervisor.
[48] In my view, based on the evidence, the reasons for the refusal by David Atwell to issue the second computer at that time, are not convincing. I find that David Atwell’s refusal, when many others in Mr. Alizadeh-Ebadi’s position had recycled second computers for the same reasons he was requesting one, was at least, in part, a result of David Atwell’s intolerant thinking at the time about Mr. Alizadeh-Ebadi as a person because of his race, national or ethnic origin or religion, as borne out in the evidence about David Atwell’s behaviour towards Mr. Alizadeh-Ebadi at the time as described in Event I above.
Event 3: Denial of training requests
[49] This Event was considerably narrowed at the hearing to relate to David Atwell’s refusal of a request on behalf of Mr. Alizadeh-Ebadi by his supervisor Neil Wyrchowny to be put Mr. Alizadeh-Ebadi on the “Win2K” project related Microsoft’s then new software operating system.
[50] David Atwell agreed in evidence that he could have put Mr. Alizadeh-Ebadi on this project. This may have resulted in Mr. Alizadeh-Ebadi being entitled to a second computer. On the evidence, in my opinion, there does not appear to be any factually based rationale for the refusal of this request made on behalf of Mr. Alizadeh-Ebadi by his supervisor at the time, Neil Wyrchowny.
[51] In my opinion, David Atwell’s refusal of this request is closely tied to his refusal of the request for a second computer explained above. This refusal by David Atwell, in my opinion, was based, in part, on David Atwell’s intolerant attitude and behaviour at the time towards Mr. Alizadeh-Ebadi’s because of his race, national or ethnic origin or religion. It was consistent with the inappropriate behaviour that David Atwell admitted to in his apology to Mr. Alizadeh-Ebadi referred to in paragraph 25 above.
Event 4: Use of the “nicknames” “Crash” or “Kourash”
[52] In June of 2001, before Mr. Alizadeh-Ebadi’s first car accident, an email complimentary of his work was sent by one of his co-workers referring to his name as “Kurash”. This may have been either a mistake or a play on his ethnic name but Mr. Alizadeh-Ebadi let his co-workers know that he didn’t appreciate the name and it stopped for awhile.
[53] After his first car accident, when he was on graduated return to work, the name “Krash”, or “Crash” or “Kourash” began to be used by various persons including David Atwell and others.
[54] The use of the “nicknames” was not appreciated by Mr. Alizadeh-Ebadi and he complained to his co-workers that he did not like their use of these names but they continued to be used intermittently during his career at MTS.
[55] The last use of the “nickname” was in the subject line of an email Glen Frya