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City Fails Human Rights Test

By Cheryl Brink
Updated November 7, 2011

CORNWALL – Ontario’s human rights tribunal has found the city discriminated against an employee it fired rather than accommodate her disability.

According to a recent decision by adjudicator David Muir, Cornwall managers also violated procedures that should have protected Marie Anne Pilon from harassment
in a case dating back to 2004.

Pilon, who spent 24 years on the city’s payroll, claimed she was treated unfairly because of a health condition called colitis that often required her to
use the washroom. She said coworkers complained about her frequent bathroom breaks, and her supervisor, John Flannigan, failed to address the issue.

Human resources manager Robert Menagh, who began working for the city in early 2005, as well as then-finance director David Dick, were also named in the
complaint, which was filed in June 2009. The tribunal hearing was held in late 2010.

The tribunal dealt with incidents beginning in April of 2004, when Flannigan, in response to complaints from Pilon’s colleagues, suggested she confine her
washroom trips to scheduled breaks.

A couple of weeks later, Pilon took a month off due to her medical condition, which had apparently worsened to workplace stress. She wrote to the city,
asking them to better accommodate her disability or she would file a harassment charge.

According to Muir’s written decision, Pilon received a one-line response: “The city has never refused your requests for washroom breaks.”

The city did decide to informally investigate the issue, interviewing Pilon and several coworkers in the process. But the ensuing report showed a “personality conflict” between Pilon and a colleague was what led to several of the complaints, and included seven recommendations to rectify the problem. Muir said
none of them were implemented.

He also noted that Pilon was never told about the resolution, but instead believed her condition was causing ongoing conflict.

“I find that the respondent city … failed in the spring and summer of 2004 to appropriately investigate the applicant’s human rights concerns,” wrote
Muir, adding that Pilon was never assured she could have unrestricted access to the washroom.

“Because the respondents chose to treat this as a problem of workplace relationships and not what it was, i.e. a human rights problem, the applicant had no idea what the employers’ response to her concerns was,” he added.

In the summer of 2005, complaints about Pilon’s job performance, and her supervisor’s inaction, escalated to the point that she packed up and left the office,
after telling her bosses that she would file a harassment claim.

Muir said Pilon’s managers should have responded to her medical condition and asked how they could better help her on the job. Instead, the stress of the
incidents left her unable to work at all.

A note from her doctor indicated the colitis had worsened, and she should not be required to return to her job in the finance department. But rather than
attempt to find Pilon a position elsewhere with the city, Menagh challenged her claim for employment insurance – a first for Cornwall. However, his argument that Pilon had quit and should be unable for the benefits, was denied during a board of referees hearing.

Menagh then sent a letter to Pilon asking her to report back to work in July 2006, but she referred him to the doctor’s note and said her medical condition continued to prevent her from being on the job. Menagh said she was capable of working, and if she didn’t her employment with the city would be over.

“Mr. Menagh continued to disregard the applicant’s claim of illness,” Muir said.

“I also find that in deciding to end the applicant’s employment in July 2006, the … city and Mr. Menagh failed in their obligation to accommodate her,”
he added.

Muir said the city condoned the harassment by not addressing it, though he noted the managers themselves were not guilty of it. However, he said both Flannigan
and Dick discriminated against Pilon when they asked her to only use the washroom during breaks.

“I find that the respondent employer and Mr. Menagh did not consider the disability issues and never turned their minds to their obligation to accommodate the applicant to the point of undue hardship,” he added in his decision, which was released on Sept. 14.

In response, Cornwall’s chief administrative officer Paul Fitzpatrick said the city has revamped its policies to better define harassment and ensure it is reported properly.

“The city of Cornwall is committed to the positive resolution of issues of workplace accommodation, harassment and accessibility,” he said in a statement on Tuesday.

“The city of Cornwall is run by people, and sometimes people don’t always make the best decisions,” added Mayor Bob Kilger. “City administration is currently reviewing the decision of the human rights tribunal, and we will be reviewing our internal policies and protocols to ensure that we continue to have a safe and welcoming workplace.”

According to a recent decision by adjudicator David Muir, Cornwall managers also violated procedures that should have protected Marie Anne Pilon from harassment
in a case dating back to 2004.

Pilon, who spent 24 years on the city’s payroll, claimed she was treated unfairly because of a health condition called colitis that often required her to
use the washroom. She said coworkers complained about her frequent bathroom breaks, and her supervisor, John Flannigan, failed to address the issue.

Human resources manager Robert Menagh, who began working for the city in early 2005, as well as then-finance director David Dick, were also named in the
complaint, which was filed in June 2009. The tribunal hearing was held in late 2010.

The tribunal dealt with incidents beginning in April of 2004, when Flannigan, in response to complaints from Pilon’s colleagues, suggested she confine her
washroom trips to scheduled breaks.

A couple of weeks later, Pilon took a month off due to her medical condition, which had apparently worsened to workplace stress. She wrote to the city,
asking them to better accommodate her disability or she would file a harassment charge.

According to Muir’s written decision, Pilon received a one-line response: “The city has never refused your requests for washroom breaks.”

The city did decide to informally investigate the issue, interviewing Pilon and several coworkers in the process. But the ensuing report showed a “personality
conflict” between Pilon and a colleague was what led to several of the complaints, and included seven recommendations to rectify the problem. Muir said
none of them were implemented.

He also noted that Pilon was never told about the resolution, but instead believed her condition was causing ongoing conflict.

“I find that the respondent city … failed in the spring and summer of 2004 to appropriately investigate the applicant’s human rights concerns,” wrote
Muir, adding that Pilon was never assured she could have unrestricted access to the washroom.

“Because the respondents chose to treat this as a problem of workplace relationships and not what it was, i.e. a human rights problem, the applicant had
no idea what the employers’ response to her concerns was,” he added.

In the summer of 2005, complaints about Pilon’s job performance, and her supervisor’s inaction, escalated to the point that she packed up and left the office,
after telling her bosses that she would file a harassment claim.

Muir said Pilon’s managers should have responded to her medical condition and asked how they could better help her on the job. Instead, the stress of the
incidents left her unable to work at all.

A note from her doctor indicated the colitis had worsened, and she should not be required to return to her job in the finance department. But rather than
attempt to find Pilon a position elsewhere with the city, Menagh challenged her claim for employment insurance – a first for Cornwall. However, his argument
that Pilon had quit and should be unable for the benefits, was denied during a board of referees hearing.

Menagh then sent a letter to Pilon asking her to report back to work in July 2006, but she referred him to the doctor’s note and said her medical condition
continued to prevent her from being on the job. Menagh said she was capable of working, and if she didn’t her employment with the city would be over.

“Mr. Menagh continued to disregard the applicant’s claim of illness,” Muir said.

“I also find that in deciding to end the applicant’s employment in July 2006, the … city and Mr. Menagh failed in their obligation to accommodate her,”
he added.

Muir said the city condoned the harassment by not addressing it, though he noted the managers themselves were not guilty of it. However, he said both Flannigan
and Dick discriminated against Pilon when they asked her to only use the washroom during breaks.

“I find that the respondent employer and Mr. Menagh did not consider the disability issues and never turned their minds to their obligation to accommodate
the applicant to the point of undue hardship,” he added in his decision, which was released on Sept. 14.

In response, Cornwall’s chief administrative officer Paul Fitzpatrick said the city has revamped its policies to better define harassment and ensure it
is reported properly.

“The city of Cornwall is committed to the positive resolution of issues of workplace accommodation, harassment and accessibility,” he said in a statement
on Tuesday.

“The city of Cornwall is run by people, and sometimes people don’t always make the best decisions,” added Mayor Bob Kilger. “City administration is currently
reviewing the decision of the human rights tribunal, and we will be reviewing our internal policies and protocols to ensure that we continue to have a
safe and welcoming workplace.”

Article ID# 3362187

Reproduced from http://www.standard-freeholder.com/ArticleDisplay.aspx?e=3362187