1

Russell Flynn v. Memorial University of Newfoundland (File # 16-721)

IN THE MATTER OF a complaint pursuant to Section 14 of the Human Rights Act, 2010 S.N.L. 2010 c. H-13.1 BETWEEN:

RUSSELL FLYNN

COMPLAINANT AND:

MEMORIAL UNIVERSITY OF NEWFOUNDLAND

RESPONDENT AND:

HUMAN RIGHTS COMMISSION OF NEWFOUNDLAND AND LABRADOR

COMMISSION

BOARD OF INQUIRY DECISION

Adjudicator Adjudicator: C. Brodie Gallant Dates Hearing Date: December 16, 2020 & December 17, 2020 Decision Date: January 4, 2021 Complaint File File: # 16-721 Appearances On Behalf of the Commission: Donna Strong (Written submissions only) On Behalf of the Complainant: Russel Flynn (Self Represented) On Behalf of the Respondent: Raelene Lee

2

PROCEDURAL HISTORY OF THE COMPLAINT

1. On December 30, 2016 the Complainant, Russel Flynn, filed his complaint with the Human Rights Commission alleging discrimination in the context of employment. In essence the Complainant alleged that in February 2016 he applied for a position posted by the Respondent, Memorial University of Newfoundland, but the Respondent refused to consider his application and his application was removed from the competition because the Complainant has a disability. The Complainant says the Respondent’s conduct was discriminatory and that he was denied an employment opportunity on the basis of his disability contrary to section 14 of the Human Rights Act, 2010, SNL 2019 c. H-13.1 (the “Act”).

2. On October 2, 2017 the Respondent, Memorial University of Newfoundland, filed its Reply. It is

not in dispute that the Complainant had or was perceived to have certain permanent functional impairments connected to prior workplace injuries. It is not in dispute that these functional impairments constitute a disability. It is not in dispute that the Complainant applied for the position, and that his application was ultimately not considered for the position because of the disability. However the Respondent asserts that it was prepared to consider an accommodation for the Complainant, and that it requested medical information from the Complainant so that it could assess whether he could to complete the duties of the position safely. The Respondent asserts that the Complainant failed provide the requested information and thus did not participate in the Respondent’s accommodation process. As a result it was not possible to accommodate the Complainant.

3. On December 4, 2017 the Complainant filed a Rebuttal to the Respondent’s Reply.

4. On April 3, 2020 the complaint was referred to this Board of Inquiry for adjudication.

5. On July 3, 2020 the Human Rights Commission Record was filed with the Board of Inquiry containing the pleadings and relevant documentation filed by the parties up to that point.

6. On July 22, 2020 and August 21, 2020 the parties participated in Pre-Hearing Conferences in order to focus the issues, set filing deadlines and scheduled hearing dates.

7. On September 28, 2020 the Commission filed written submissions.

8. On October 15, 2020 the Complainant filed submissions. 9. On November 5, 2020 the Respondent filed its written submissions.

10. The Hearing proceeded over two days on December 16, 2020 and December 17, 2020 with the

use of video conferencing software in light of the physical distancing requirements associated with the Covid-19 pandemic.

11. Seven witnesses provided evidence during the hearing:

3

Russel Flynn (the Complainant) Theresa Antle (CUPE President) Karen Butler (Occupational Therapist – Central Rehab) Tammy Poirier (Human Resources Advisor – MUN) Debbie Earles (Manager Department of Information Technology Services – MUN) Erin Bradbury (Ergonomist – MUN) Roxanne Jackson (Manager Employee & Labour Relations – MUN)

12. I note that I found each of the seven witnesses to be credible, although at points it was clear that the passage of time had dulled their recollection. Fortunately most witnesses able to refer to notes made at the time of the events years ago, and we had the benefit of the documentation in the Commission Record, and some additional emails which were produced subsequently. I will refer to those below.

MATERIAL FACTS & DISCUSSION OF THE EVIDENCE

13. Since October 21, 1997 the Complainant, Russell Flynn has been employed by the Respondent,

Memorial University of Newfoundland. He was initially hired for the position of “IT Consultant I” with what is now the Respondent’s Department of Information Technology Services (“DITS”). This department services the computer systems throughout the university campus. The Complainant was initially hired on contract but his position was made permanent sometime thereafter.

14. On February 2, 2004 the Complainant took a leave of absence from his permanent position to take a series of temporary assignments in the position of “PC Consultant I” with what is now Center for Innovation for Teaching and Learning (formerly Distance Education Learning Technologies and the department was referred to throughout the hearing by witnesses as “DELTS”). The Complainant remained in the PC Consultant position with DELTS from 2004 – 2011.

15. In October 2009 the Complainant sustained a workplace injury to his back while carrying a

printer. He was off work for approximately two months.

16. In March 2010 the Complainant sustained a second workplace injury / re-injury while he was down on the floor reaching to get a power bar which was under/behind some office furniture. He was off work until April 25, 2011 (approximately 13 months).

17. On June 30, 2011 the secondment with DELTS ended and at this point he returned to his

permanent position as IT Consultant I with DITS.

4

18. In the summer of 2012 the Complainant was working as an IT Consultant with DITS when he experienced a significant flair-up of symptoms associated with the prior workplace injuries. He went off work on August 9, 2012 and remained off work for 37 months until September 21, 2015.

19. I pause here to note that the Complainant’s return to work spanning 2012-2015 was a

contentious process involving the Workplace Health Safety and Compensation Commission. There were conflicting medical/professional views as to how best to accommodate the Complainant’s injuries and functional limitations. These were expressed in various reports and letters spanning 2013-2014.

20. During the return to work process the Complainant argued that he should be returned to the position of PC Consultant because it allowed him more mobility throughout the day whereas the IT Consultant position was a more sedentary job. He felt the sedentary nature of the IT Consultant role was exacerbating his injury.

21. The Respondent disagreed noting that the Complainant had initially sustained his injuries in the PC Consultant role, the PC Consultant position was a more strenuous role, and some of the core duties of the position were now considered unsafe for the Complainant. Although the Complainant’s functional limitations also impacted his abilities to perform some of the duties of the IT Consultant position, the Respondent concluded these limitations could be safely accommodated by modification of those duties and by providing certain ergonomic equipment. In addition, there was no available PC Consultant positions at the time and the Respondent argued it would have to create a position or terminate an existing employee in order to attempt an accommodation the Complainant into a PC Consultant position.

22. To be clear the 2012-2015 return to work process is not the subject of the complaint presently before this Board of Inquiry. The complaint before this Board of Inquiry alleges that the Respondent discriminated against the Complainant by not hiring him in the position of PC Consultant following a job posting/job competition in February 2016. The following medical information and documentation related to the 2012-2015 return to work process was referred to during the hearing and they are relevant in so much as they represent a sampling of the medical information in the Complainant’s personnel file at the time he applied for the PC Consultant position in 2016.

23. A letter dated May 5, 2013 authored by Dr. Vic Sahajpal states that the Complainant was seen in

regard to his stenosis L4-S1, that the Complainant was improving with physiotherapy, and Dr. Sahajapal suggests he not return to work in a position with a lot of “sit down time”, and that the Complainant needed a position where he could sit and stand at various times for his back.

24. A letter dated June 3, 2013 authored by Dr. T. Foggwill states that the Complainant has a chronic back problem that will likely wax and wane into the future, the flare-up of symptoms was attributed to prolonged sitting. The letter suggests the Complainant’s pre-injury work was likely too strenuous, and agrees with Dr. Sahajapal that the Complainant would require some

5

flexibility re: posture. The letter says the Complainant may not be capable of heavy type work, would require the ability to change posture, and a position where he is predominantly sitting would not be suitable. Dr. Fogwill concludes by recommending “a functional assessment at present to give us a better objective overview of the current abilities and potential precipitating factors”.

25. On February 25, 2014 the Complainant participated in a functional intake occupational therapy assessment performed by Danielle Button, Occupational Therapist with In Motion Health Center Inc. A report prepared by Ms. Button dated March, 2014 notes that “As a result of his limited functional tolerances it is recommended that he not return to the IT Consultant position which is described as requiring constant sitting. At this time, Russ is limited with static postures such a static sitting and static standing”.

26. In 2014 MUN’s Ergonomist, Erin Bradbury was tasked with performing a Job Site Analysis (“JSA”)

of the both the PC Consultant position and IT Consultant position. During the hearing Ms. Bradbury described the process she would have followed. She described an in depth review of the duties of each position including consultation with management, human resources, employees working the position, review of job descriptions and prior job postings, as well as actual observation of employees performing the job to take weights, distances, angles and other measurements in order to prepare a complete and accurate description of the physical requirements of the position.

27. On November 15, 2014 Ms. Bradbury finalized the JSAs for the PC Consultant position and the IT Consultant position.

28. Ms. Bradbury described that these JSAs would then be used by an Occupational Therapist

performing a Functional Assessment to determine whether an individual could safely perform the physical requirements of a particular position as described by the JSA. If the Functional Assessment revealed the individual was limited in their physically ability to perform a particular task identified by the JSA, the employer could then consider whether the task could be modified, or other accommodation implemented, to allow the individual to perform the task safely.

29. On April 28, 2015 the Complainant participated in a Functional Assessment performed by Danielle Button, Occupational Therapist with In Motion Health Center Inc. Ms. Button’s report provides a breakdown of Functional Tasks, Tolerances, and her Comments. The report states that “A return to work plan to the PC Consultant position at Memorial University is still recommended.”

30. Ms. Bradbury referenced this report in her evidence and noted that she disagreed with Ms. Button’s recommendation that the Complainant return to a PC Consultant position. She notes that the specific findings of report itself state that the Complainant’s physical limitations prevented him from safely performing core duties of the PC Consultant position. As an example Ms. Bradbury noted that lifting from floor level, such as to retrieve a Personal Computer stored

6

under a desk would be common task associated with the position and is identified as such in the JSA for the position. The Functional Assessment identifies the Complainant’s tolerance in relation to task “lifting floor level” as “not able” and describes “Russ attempted lower level postures. Guarded and controlled movements observed. He noted that he tends to avoid lower level lifting at home. Lower level lifting not recommended”. She testified that there was no way to accommodate the Complainant in this regard because attending the offices of other employees to address their computer issues, and in many cases retrieving computer towers from under desks as a core duty of the PC Consultant role.

31. Ms. Bradbury then referenced the JSA for the IT Consultant position, and described that this position did not require floor level lifting. She acknowledged that “constant sitting” was one of the physical requirement of the IT Consultant position. However Ms. Bradbury testified that there were ways in which job modification could accommodate the Complainant. In particular she noted that a “Return to Work Plan” was prepared by Karen Butler, Occupational Therapist with Central Rehab, on July 15, 2015 recommends:

“Light duties within restrictions as follows: -flexibility to alternate between: Sitting up to 30 minute durations Standing up to 10 minute durations walking up to moderate distances

-minor low level work postures -occasional horizontal lifting/carrying up to 25 lbs Mr. Flynn will require flexibility for postural changes and brief stretch/micro breaks.” 32. Ultimately the Return to Work plan prepared in July 15 2015 was implemented, with

subsequent updates/modifications to the plan prepared on October 15, 2015, and November 23, 2015. The Complainant return to his IT Consultant role with some job modification including the above referenced flexibility for postural changes etc. and that certain modifications to his work station be implemented as recommended by Ms. Bradbury:

1. An adjustable height tilting keyboard tray for use when sitting 2. Sit/stand stool to provide support while completing work tasks from a standing

position 3. Use of a timer for reminders to make postural changes every twenty minutes 4. Mr. Flynn is also encouraged to continue performing exercises and prescribed

stretches during scheduled breaks

33. By September 21, 2015 the Complainant had returned to work and resumed his duties as an IT Consultant in the Respondent’s Information Technology Services Department.

34. The Complainant’s maintains that he was not properly accommodated in this return to work spanning 2012- 2015. He also takes issue with delays in installing the recommended work

7

station modifications which he says exacerbated his injuries and required additional time off for a short period late in 2015. I repeat that the 2012-2015 accommodation process, was not the subject of the complaint before this Board of Inquiry and would be statute barred by section 25 of the Act. I can order no remedy with respect to that accommodation process. However it is necessary context in considering the events which unfolded during the subsequent job completion for a PC Consultant position in 2016.

35. On February 4, 2016 the Respondent made an internal posting seeking candidates for the position of ‘PC Consultant I’ with DITS. Tammy Poirier, Human Resources Advisor with DITS was overseeing the job competition.

36. On February 6, 2016 the Complainant submitted an application for the position.

37. On February 11, 2016 the competition for the position of PC Consultant I closed.

38. On February 17, 2015 Ms. Poirier reviewed the applications to screen the candidates in terms of their eligibility for the position in terms of their education & experience, union status, etc. She testified that 4 individuals were screened out as having not met these criteria. She reviewed the Complainant’s application, and because of her familiarity with his situation and the accommodations implemented for his work as IT Consultant, she reviewed his personnel file to determine if he could safely perform the job requirements of PC Consultant.

39. Debbie Earles, Manager, Finance Administration Information Technology became involved. Roxanne Jackson, Manager Employee & Labour Relations became involved. Ms. Poirier, Ms. Earles, and Ms. Jackson were all aware of the Complainant’s situation and had been involved to varying degree during the accommodation process for his return to work in 2015. They were each concerned as to the Complainant’s ability to safely perform the duties of PC Consultant based on the medical information in the Complainant’s personnel file. Although the complainant did not request an accommodation when he submitted his application for the PC Consultant position Ms. Jackson noted in her testimony that MUN’s written Accommodation Policy expressly recognizes a positive duty or responsibility on the part of the employer to “begin the accommodation process when there is a reasonable belief that an employee may require accommodation”.

40. Roxanne Jackson testified that when she was informed that the Complainant had applied for the PC Consultant position she contacted MUN’s ergonomist Erin Bradbury and asked her to do an in depth review of the Complainant’s file. She recalled that one of the first thing Ms. Bradbury asked was whether there was an updated Functional Assessment, or other updated medical information. Ms. Bradbury in turn testified that she would have asked whether there was an updated Functional Assessment. She described that a Functional Assessment prepared would have provided important information as to the Complainant’s current physical abilities and restrictions in the context of the Job Site Analysis for the particular position. A Functional Assessment would have been prepared by and Occupational Therapist and not a Medical Doctor. Ms. Bradbury described that this was important because you want to have the most

8

updated information about his functional capabilities to determine if he can safely perform the required tasks identified by the JSA. She described that an medical doctor might provide an opinion with respect to short term restrictions such as if an individual had a broken ankle and the doctor recommended no walking for 6 weeks, but a Functional Assessment prepared by an Occupational Therapist would be the evidence of long term functional abilities.

41. Ms. Jackson and Ms. Bradbury testified that at that time there was no updated medical information to provided Ms. Bradbury as part of her review, and she proceeded to review the medical information in the Complainant’s personnel file. It was concluded that based on the medical information in the file associated with the Complainant’s 2015 Return to Work plan, Mr. Flynn could not complete some of the required tasks of PC Consultant as outlined in the JSA, and that no reasonable accommodation could be made which would enable the Complainant to perform that position.

42. On March 1, 2016 Debbie Earles, Manager DITS contacted the Complainant by telephone to

schedule a meeting. She testified that she would have informed him of his right to have a union representative present but also that the meeting was “non-disciplinary”.

43. On March 2, 2016 the Complainant attended a meeting with Debbie Earles, and Tammy Poirier.

Ms. Earles is the Manager, Finance and Administration Information Technology, and Tammy Poirier is the Human Resource Advisor who screened the competition.

44. The Complainant testified that when he was invited to the meeting he asked what it was about

but that Ms. Earles would not say. He says that he thought they were meeting to offer him the position of PC Consultant. The complainant says when the meeting began he was told that as a result of his back injuries his application was being pulled from the competition. He describes being shocked and very upset. He acknowledges that he ended the meeting abruptly.

45. Ms. Poirier testified that during the meeting the Complainant was told that based on the medical information on file he was not being considered for the position. She recalls that they asked if he had any updated medical information. She recalls that the Complainant was upset, and that upon being told he was not being considered he expressed that he thought they were meeting to offer him the job. He asked to stop the meeting and to reconvene when he could have a union representative present.

46. Ms. Earles testified that the Complainant was informed the he would not be considered for the position because he did not get medical clearance. She recalled that the meeting came to an abrupt halt, that the complainant wasn’t happy, and she believes he decided he wanted to have a union rep present but she couldn’t recall if he said that at the time. She recalled that the Complainant was told that if he presented medical clearance he would have been on the short list.

9

47. After the March 2, 2016 meeting, the Complainant did reach out to his union and was in contact with Theresa Antle the local CUPE president. He had a meeting with Ms. Antle and with the national president Dawn Learning.

48. Theresa Antle gave evidence during the hearing. I note that her recall of events was the least reliable of all of the witnesses but she had some notes and her own calendar from the time period with which she was able to refresh her memory, and she was able to review email correspondence presented during the hearing which further refreshed her memory. I could place little weight of her evidence when it was not directly supported by her notes and/or the emails. Fortunately the documentary record in this case is quite good.

49. On March 7, 2016 the Complainant met with Ms. Antle and Ms. Learning to discuss the Complainant’s application for the PC Consultant position.

50. Ms. Antle testified that she had a telephone call with Tammy Poirier to discuss whether the Complainant could get an interview for the PC Consultant position if he was able to provide new medical information. She believes that during their conversation they discussed what type of medical information MUN was requesting. Ms. Antle testified that they discussed whether it needed to be from a medical doctor, or some kind of specialist. They discussed that in the past MUN had used information from an Occupational Therapist and a company called IOHS was specifically referenced. Ms. Antle testified that she was told information from an Occupational Therapist would be acceptable. She recalled that in addition to speaking with Ms. Poirier, Ms. Antle contacted Natalie Decker, MUN’s Occupational Health Nurse who told Ms. Antle information from an Occupational Therapist would be acceptable. Ms. Antle testified that she advised the Complainant to get any updated medical documentation that he could.

51. During her testimony Ms. Poirier acknowledge that during her telephone call with Ms. Antle they would have discussed the option of using information received from an Occupational Therapist. She testified that typically for someone to be cleared to perform some particular work MUN would obtain documentation or medical clearance from the individual’s treating physician. She acknowledged that sometimes they would receive information regarding an individual’s functional abilities from a physiotherapist or occupational therapist and typically, but not always, they would then have the treating physician review the information from a physiotherapist or occupational therapist.

52. The Complainant recalls that he was told he had to submit updated medical information before

the following Tuesday March 15, 2016. 53. The Complainant contacted Karen Butler, Occupational Therapist with Central Rehab and asked

that she assist him by completing an updated Functional Assessment. Ms. Butler is the same Occupational Therapist who had prepared the Return to Work plan which had been implemented for the Complainant’s 2015 return to work.

10

54. Karen Butler testified that the Complainant told her it was urgent and that he needed a new Functional Assessment by Tuesday March 15, 2016. Ms. Butler testified that ordinarily when she is retained to perform a Functional Assessment by worker’s compensation, she is expected to satisfy a 10 day turn around. In this case she understood the information was needed by March 15, 2016 and she agreed to complete the work within that timeline.

55. Ms. Butler testified that after speaking with the Complainant she sent an email to Tammy Poirier requesting the Job Site Analysis for the PC Consultant position so that she could complete an updated Functional Assessment. However, Ms. Poirier did not provide Ms. Butler with a copy of the JSA. Instead Tammy Poirier sent an email in reply addressed to the Complainant, with Ms. Butler cc’ed, stating that the information in Ms. Bulter’s email was not correct and asking that the Complainant contact Ms. Poirier for clarification.

56. At this point I will discuss the emails exchanged of March 10th and 11th, 2016. These were

presented at the hearing as being one continuous email chain and that is important but I will discuss each individually.

57. An email dated March 10, 2016 at 2:45PM records Ms. Bulter’s request for a copy of the JSA so that she could complete an updated Functional Assessment:

From: Karen Butler [mailto:karen@centralrehab.nf.ca] Sent: March-10-16 2:45 PM To: Poirier, Tammy Cc: Flynn, Russ Subject: updated functional Hi Tammy Russ has contacted me to advise that his employer requires updated functional to confirm suitability for a PC Support position he has applied for. Will you please forward me the Job Site Analysis for this position so I can review the physical requirements? Thanks. Karen

58. An email dated March 10, 2016 at 4:26PM records the response from Ms. Poirier and confirms

that the JSA was not provided at this time (this was also acknowledged in Ms. Poirier’s viva voce evidence).

From: Poirier, Tammy Sent: Thursday, March 10, 2016 4:26 PM To: Karen Butler Cc: Flynn, Russ Subject: RE: updated functional

11

Hi Karen, Nice to hear from you; hope all is well. The context of the conversation as referenced below is not quite accurate. Russ, if you would like clarity we can certainly reconvene to discuss further. Cheers, Tammy TAMMY POIRIER | HUMAN RESOURCES ADVISOR Department of Human Resources Memorial University of Newfoundland Human Resources, Rm. SP-4006 St. John's, NL, Canada A1C 5S7 T 709 864 3570 | F 709 864 2700 Where people and ideas become www.mun.ca

59. An email dated March 11, 2016 at 8:06AM from the Complainant to Ms. Antle records that the

Complainant appears confused by the response from Ms. Poirier. The Complainant expresses his understanding that he had to provide the updated medical information by Tuesday March 15, 2016 in order to be considered for the position.

From: Flynn, Russ Sent: March 11, 2016 8:06 AM To: Antle, Theresa Subject: FW: updated functional Theresa what's up with this? I have not spoken to Tammy yet but i was of the understanding after speaking with you that if updated information was supplied before Tuesday I would have a shot at this position. Regards Russ

60. An email dated March 11, 2016 from Ms. Antle to Ms. Poirier requests clarification and states

that it was also Ms. Antle’s understanding that the Complainant was required to submit the updated medical information by Tuesday March 15, 2016 in order for him to be interviews. (It is not in dispute that interviews for the PC Consultant position were held March 15, 2016)

12

From: Antle, Theresa Sent: March-11-16 9:33 AM To: Flynn, Russ Cc: Poirier, Tammy Subject: RE: updated functional Hi Tammy, Can you clarify this for me. When we discussed this I thought you said that if Russ had clearance in regard to his medical status by Tuesday you said you would let him be interviewed. Theresa

61. An email dated March 11, 2016 at 1:50PM from Ms. Poirier to Ms. Antle states that the medical

information would have to be provided by a doctor, and would have to be reviewed by MUN to determine if their safety concerns were satisfied before an interview would be offered. Ms. Poirier testified that her intention from this email was to reiterate that the medical information would have to satisfy MUN as to the safety concern.

From: Poirier, Tammy Sent: March 11, 2016 1:50 PM To: Antle, Theresa; Flynn, Russ Subject: RE: updated functional Hi Theresa, I advised that any information received would need to be:

a. Provided by a licenced MD; and b. Reviewed thoroughly to determine if documentation satisfies the Employer’s

concerns for Mr. Flynn’s health and safety in the workplace and I further indicated that this may require further investigation and/or referral to our Occupational Health Nurse for consultation.

I did not commit to an interview if medical documentation was received before interviews were conducted. I did clarify that an interview would be dependent on the nature of information received and if that information was satisfactory as referenced above. Cheers, Tammy

13

62. Ms. Poirier testified with respect to this email that they typically request a letter from an MD, but if they receive information from a physiotherapist, or occupational therapist, it is her practice as an HR Advisor to have the treating physician review the information to approve it.

63. An email from Ms. Antle to Ms. Poirier dated March 11, 2016 suggests that they should meet with the Complainant to clarify what medical information was being required of him. The email records Ms. Antle’s recollection of her previous conversation with Ms. Poirier and that medical clearance from an Occupational Therapist would be considered. An Occupational Therapist company “IOHS” is specifically references as having been used by MUN frequently in the past.

From: Antle, Theresa Sent: March-11-16 2:23 PM To: Poirier, Tammy; Flynn, Russ Cc: Dawn Learning Subject: RE: updated functional Thanks Tammy, My understanding from our conversation was that if Jeff [sic Russ] had this information he would at least get an interview, Pending of course that the information proves he can in fact perform the duties for this position. You did say you weren’t going to consider him at this time because of restrictions and may be considered for future postings but you also said that if by chance he was lucky enough to get clearance or some kind of report by Tuesday you would look at it and determine then if he would be qualified physically. We did speak about seeing a specialist verses an Occupational Therapist and talked about IOHS that MUN uses frequently. You told me that if Russ used this service it would probably be ok and I also spoke to Natalie Decker who basically said they same thing. I think we should meet with Russ to clarify all of this. Thanks Theresa

64. During her testimony Ms. Poirier acknowledge that during her telephone call with Ms. Antle

they would have discussed obtaining information from specialists vs. medical doctors vs. IOHS or other Occupational Therapist and potentially using such a service. She recalled that confirmation from a specialist was not being required. Ms. Antle raised the option of using an Occupational Therapist like IOHS and Ms. Poirier testified that she would have agreed to uses such a service during her conversation with Ms. Antle, but they would have had to review any medical decimation received but typically they would have a doctor review it and their ergonomist Erin Bradbury.

65. An email dated March 11, 2016 at 2:30PM from Ms. Poirier to Ms. Antle acknowledges that

IOHS had been used in the past but states that in this case MUN was requiring the information

14

to come from a “licenced MD” and satisfy MUN’s safety concerns regarding the Complainant. Ms. Poirier agrees they should meet and suggests Wednesday March 16, 2016 after 11:00AM

From: Poirier, Tammy Sent: Friday, March 11, 2016 2:30 PM To: Antle, Theresa <tantle@mun.ca>; Flynn, Russ <russ@mun.ca> Cc: Dawn Learning <dlearning@cupe.ca>; Jackson, Roxanne Trudy <roxannej@mun.ca> Subject: RE: updated functional Hi Theresa, I advised that we have used IOHS in the past and reiterated that information received would have be from a licensed MD and satisfy our concerns for Mr. Flynn’s health and safety in workplace. We should meet. The earliest availability I have is Wednesday after 11:00am, but will also need to confirm availability of Debbie Earles. Cheers, Tammy

66. Ms. Poirier testified that by this email she was only attempting to reiterate that their practice would be to have the MD review the information received from an Occupational Therapist and provide clearance or approval. Ms. Poirier acknowledged that if the Complainant had provided an updated Functional Assessment MUN would have considered it, and if it determined that the Complainant could safely perform the duties of PC Consultant, he would have been offered an interview.

67. It is significant in terms of the timeline to note that this series of emails between Ms. Poirier and Ms. Antle were exchanged during the afternoon of Friday March 11, 2016. The Complainant testified that he does not believe he would have seen them as they came in but that he may have seen them a few days later by Monday March 14, 2016. He testified that by the time he saw the emails he felt there was no way he could arrange to obtain medical clearance from his doctor before Tuesday March 15, 2016.

68. There was no meeting on Tuesday March 15, 2016 but a second meeting did occur on March 23, 2016. The Complainant, Theresa Antle, Dawn Learning, Roxanne Jackson, Tammy Poirier, and Debbie Earles were all present. The witnesses consistently testified that this was a positive and productive meeting. Their testimony is generally consistent that during this meeting he Complainant and his union representative were advised that if the Complainant provided updated medical information that alleviated the safety concern of the employer and allowed the Complainant to perform the bona fide occupational requirements of the position satisfactorily, he would be considered for future positions. The Respondent’s position is that it also held off

15

on making any offers for the PC Consultant position until after the March 23, 2016 meeting. The Respondent says that since the Complainant did not provide updated medical information and he was not considered for the PC Consultant position when an offer was made on March 23, 2016. The Respondent’s witnesses, and Ms. Antle all testified that they left the meeting feeling like they were ‘on the same page’ and that the Complainant was reassured that if he provided medical information he would be considered for future job opportunities.

69. During the March 23, 2016 Ms. Antle or the Complainant made another request for the JSA. The JSA was subsequently provided to the Complainant sometime in April 2016.

70. In April, 2016 the Respondent published an advertisement for the position of PC Consultant II in

another department separate from DITS. The Complainant also applied for that position.

71. On June 1, 2016 the Complainant provided an updated functional assessment prepared by Karen Butler, Central Rehab. This report confirmed the Complainant could perform the requirement of the PC Consultant II position. The Complainant was not required to provide medical clearance from his treating physician.

72. It is not in dispute that in July 2016 the Complainant was hired for the position of PC Consultant II and he remained employed in that position with the Respondent’s Department of Mathematics & Statistics at the time this matter proceeded to a hearing.

73. On December 30, 2016 the Complainant filed his complaint with the Human Rights Commission.

He asserts that the Respondent’s conduct, in refusing to consider his application for the PC Consultant I position within the Respondent’s Information Technology Services Department, was discriminatory and that he was denied an employment opportunity on the basis of his disability contrary to section 14 of the Act.

74. On October 2, 2017 the Respondent filed its Reply. The Respondent maintains that it was

prepared to consider an accommodation for the Complainant, and requested medical information from the Complainant so that it could assess his functional abilities to complete the duties of the position. The Respondent asserts that the Complainant failed provide this information and thus did not participate in the Respondent’s accommodation process. As a result it was not possible to accommodate the Respondent.

ISSUES

I. Has the Complainant established a prima facie case of discrimination? I. Has the Respondent established that it could not reasonably accommodate the

Complainant without suffering undue hardship? II. If the Complainant is successful, what is the appropriate Remedy?

16

LAW & ANALYSIS Issue I - Has the Complainant established a prima facie case of discrimination? 75. The Complainant asserts that the Respondent’s conduct during the 2016 hiring process for the

PC Consultant position was discriminatory. He relies up section 14(1) of the Act which states:

14. (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination, or because of the conviction for an offence that is unrelated to the employment of the person.

Reference: Human Rights Act, 2010, SNL 2019 c. H-13.1 s. 14(1). 76. The Complainant bears the initial burden of proof and he must establish a “prima facie case” of

discrimination on a balance of probabilities. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the Complainant's favour in the absence of an answer from the Respondent.

77. In Moore v. British Columbia (Ministry of Education), 2012 SCC 61, the Supreme Court of Canada described in the evidentiary burdens placed on complainants and respondents:

[33]… to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

Reference: Moore v. British Columbia (Ministry of Education), 2012 SCC 61 at para 33.

See also: Ontario Human Rights Commission v Simpson-Sears Ltd, [1985] 2 SCR 536 at para 28.

78. In this case it is not in dispute that the Complainant has a permanent functional impairment

resulting from his workplace injuries and that this functional impairment is a disability within the meaning of the Act. It is not in dispute that the Complainant’s disability was a factor in the Respondent’s decision not to hire him for the position of PC Consultant with DITS in February 2016. It was the Respondent’s belief that the Complainant could not safely perform the duties of the position which led to their request that the Complainant provide new medical documentation before his application for the position would be considered.

17

79. The Complainant has satisfied his burden to prove prima facie discrimination under section

14(1) of the Act. This is not contested by the Respondent

80. However, the Respondent asserts that its conduct during the hiring process is ultimately not discriminatory being justified and permissible under the Act pursuant to the exception expressed in section 14(2) which states:

14 (2) Subsection (1) does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.

Reference: Human Rights Act, 2010, SNL 2019 c. H-13.1 s. 14(1). 81. The Respondent submits that it required that the Complainant to provide updated medical

information so that it could assess whether the Complainant could safely perform the core duties of the PC Consultant position, or whether some accommodation would be required. The Respondent argues that the Complainant failed to provide updated medical information and so there was nothing the Respondent could do to assess whether he could safely perform the good faith occupational requirement of the position, or whether any accommodation for the Complainant could be safely implemented to allow him to do the job with modification.

82. Again prima facie discrimination issue was not in dispute. We shall proceed to consider whether the Respondent’s conduct was justified under section 14(2) of the Act and is therefore non-discriminatory.

Issue II - Has the Respondent established that it could not reasonably accommodate the complainant without suffering undue hardship? 83. Discrimination in the employment context is prohibited by section 14(1) of the Act. The scope

of the prohibition is broad, but it is subject to the exception expressed in section 14(2) of the Act which recognizes the practical necessity that employers be permitted to impose and expect compliance with a standards which represent a “good faith occupational qualification”. In other Canadian jurisdictions the language “bona fide occupational requirement” is used and these terms are substantively equivalent and often abbreviated as “BFOR/Q”.

84. The three part “Meiorin test” outlined by the Supreme Court of Canada in 1999 remains the test to determine if a prima facie discriminatory standard is justified as a BFOR/Q.

54 Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:

18

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good

faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

55 This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p. 518, “[i]f a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be [a BFOR]”. It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.

Reference: British Columbia (Public Service Employee Relations Commission v. BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”).

85. The burden of proof rests with the Respondent to show that its actions were justified as a

BFOR/Q and that it could not accommodate the Complainant without suffering undue hardship:

A prima facie case in this context is one which covers the allegations made in which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent/employer.

…once the prima facie proof of discriminatory effect is made it will remain for the employer to show undue hardship. …

Reference: O’Malley v. Simpson-Sears Ltd., [1985] 2 SCR 536,1985 Canlii 18.

19

86. Step 1 of the test will be satisfied if the employer can show an objectively rational connection

between the impugned standard it applied and the general purpose the standard is intended to achieve.

87. As I indicated to the parties at the conclusion of the hearing, on the evidence presented I had no

difficulty concluding there was a rational connection between the Respondent’s decision to request updated medical information and the general purpose of ensuring a safe work environment.

88. I find that this rational connection is sufficient to discharge the Respondent’s onus as stage 1 of the Meiorin test.

89. Step 2 of the Meiorin test shifts the focus is to the subjective intentions of the employer and

whether the impugned standard was adopted in good faith with an honest belief that the standard was necessary to achieve the legitimate purpose of the employer.

60 Once the legitimacy of the employer's more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant. This addresses the subjective element of the test…

Reference: British Columbia (Public Service Employee Relations Commission v. BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”).

90. The Complainant questions the Respondent’s motives and suggests that the Respondent

requested new medical information because they that did not expect the Complainant to be able to produce any new medical information in time. The Complainant asserts that when Karen Butler from Central Rehab contacted the Respondent to request the JSA in order to prepare a Functional Assessment, the Respondent changed its position to require that any information had to be from a Medical Doctor.

91. I have no difficulty concluding that there was significant miscommunications and confusion recorded in the email exchange between Ms. Antle and Ms. Poirier on March 11, 2016 and during their prior phone conversation. It was very unclear to me what type of medical information was being requested of the Complainant at the time. However, based on the testimony of Ms. Antle, Ms. Poirier, Ms. Earles, and Ms. Jackson, I accept that the Respondent’s requests for updated medical information was made in good faith, with genuine concern

20

regarding the Complainant’s physical ability to safely perform the requirements of the PC Consultant position.

92. There does not appear to be sufficient evidence to support the Complainant’s perception of an ulterior motive such that the Respondent’s argument would fail at this stage of the Meiorin test.

93. I find that the Respondent has satisfied its onus as stage 2 of the Meiorin test. 94. Step 3 of the Meiorin test requires the employer to establish that the standard or practice it

applied was reasonably necessary to accomplish its legitimate purpose and that it could not accommodate the complainant without the employer experiencing undue hardship.

62 The employer's third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship…

Reference: British Columbia (Public Service Employee Relations Commission v. BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”)

95. At this point the analysis shifts away from the general nature of the standard adopted and the subjective intentions of the employer. The focus is placed on the application of impugned standard to the individual and whether there were alternatives to accommodate the individual while still achieving the legitimate goal of the impugned standard. Within the Accommodation/Undue Hardship analysis a number of important questions should be explored:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? (b) If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented? (c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? (d) Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?

21

(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? (f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.

Reference: Meiorin, supra.

96. It is at this stage of the Meiorin test where I struggle with the Respondent’s arguments. The

Respondent argues that requesting updated medical information from the Complainant was reasonable and necessary so that the Respondent could evaluate that information and determine what if any accommodations could be safely implemented so that the Complainant might fill the position of PC Consultant. The Respondent says that the Complainant failed to provide updated medical information and so the Respondent could not proceed with any accommodation without risking the Complainant’s safety – ie without undue hardship.

97. The Respondent argues that when an employer proposes a reasonable accommodation process, the Complainant has a legal duty to participate in that process in a co-operative effort toward accommodation. The Respondent argues that the Complainant failed to discharge his the legal duty to participate in the accommodation process. The Respondent relies upon the decision of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, where the Court describes a Complainant’s duty within the accommodation process:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley. At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

22

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged. In my opinion the member designate did not err in this respect. The complainant did everything that was expected of him with respect to the proposal put forward by the employer. It failed because the union refused consent and the employer refused to proceed unilaterally. The appellant had no obligation to suggest other measures. Moreover, it is not suggested that the appellant turned down any reasonable proposal which was offered to him.

Reference: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 1992

CanLII 81 (SCC) (“Renaud”).

98. The Respondent’s position on the law is correct. As the Supreme Court states in Renaud “If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed.” However, I do not agree that this legal principle assists the Respondent on the facts of this case. The problem here is that upon being notified that the Respondent was requesting medical information, the Complainant was proactive and did take reasonable steps.

99. Upon being advised that the Respondent required updated medical information the Complainant contacted Karen Butler, the Occupational Therapist who had completed his 2015 Return to Work plan. He retained her, at his expense, to prepare an updated Functional Assessment. He made her aware of the very short turnaround time required for her report.

100. Ms. Butler agreed to complete the assessment and to provide her report before interviews were conducted. She acknowledged that the timeline was tight and shorter than the 10 days she was accustomed to but she agreed to complete the work in time.

101. Ms. Butler contacted the Respondent’s representative, Tammy Poirier, and requested the JSA which was the one piece of information she needed from the Respondent in order to complete an updated Functional Assessment.

23

102. Ms. Poirier did not provide Ms. Bulter with the JSA.

103. In my view it was not the Complainant’s failure to take reasonable steps which caused the accommodation process to founder. It was the failure of the Respondent to provide the JSA to Ms. Butler when requested to do so. Without the JSA Ms. Butler could not an updated Functional Assessment.

104. We have to bear in mind that the Complainant was told he would not be considered unless he provided updated medical information within a very short timeline. He made efforts to obtain that information. He could not comply with the timelines without the JSA being provided.

105. There was much evidence, discussion, and argument about whether the emails from Ms. Poirier

on March 11, 2016 were intended as a refusal to accept a Functional Assessment from an Occupational Therapist; or simply to emphasize that it would have to be reviewed and approved by a doctor; or whether the Respondent was simply clarifying its preference to have such a report reviewed by and approved by the Complainant’s treating physician.

106. The fact of the matter is that the updated Functional Assessment was the key next step, regardless of whether it would have been acceptable on its own or with review and approval by a medical doctor. If the JSA had been produced to Karen Butler when it was requested we would now know what the Complainant’s physical abilities and limitations were at the time he applied for the PC Consultant position, and we would be able to determine whether he could have been accommodated at that time. I find the debate about the intent of the emails immaterial. The real issue is that an updated Functional Assessment could not be prepared because the JSA was not provided to the Occupational Therapist when she requested it.

107. It was only after the PC Consultant position with DITS was filled that the JSA was provided to the Complainant (it was provided sometime in April 2016). It was only then that the Complainant was able to obtain a new Functional Assessment (completed on June 1, 2016). He then applied for another PC Consultant position within a different department (not within DITS) and was hired for the job (July 2016).

108. The results of the subsequent June 1, 2016 Functional Assessment determined that the physical requirements of the PC Consultant position were within the Complainant’s physical tolerances and abilities. He could do the job as of June 1, 2016. From this I can infer that it was possible, and quite likely that he could have done the job as of March 15, 2016 with or perhaps without any accommodation.

109. Ultimately I find that the Respondent has failed to discharge its burden at step 3 of the Meiorin test. The Respondent’s refusal to employ the Complainant for the PC Consultant position in March 2016 was therefore discriminatory and is not justified by a BFOR/Q.

24

Issue III - If the Complainant is successful, what is the appropriate Remedy? 110. Pursuant to section 39 of the Act the Board of Inquiry has broad powers to make orders

compelling a respondent to do one or more of the following: (i) to stop the contravention complained of, (ii) to refrain in future from committing the same or a similar contravention,

(iii) to make available to the person discriminated against the rights, opportunities or privileges he or she was denied contrary to this Act,

(iv) to provide compensation to the person discriminated against, including compensation

for all or a part of wages or income lost or expenses incurred because of the discriminatory action, and

(v) to take whatever other action the board considers appropriate.

The board may also make any order as to costs that it considers appropriate. 111. The Complainant’s complaint form seeks an order requiring the Respondent to provide

compensation special damages and general damages. He also argues that the Respondent should be required to participate in human rights training to be facilitated by the Human Rights Commission.

112. The Commission submits that special damages must be limited to amounts proven at the hearing less any amounts recovered by the Complainant through his reasonable efforts to mitigate his loss. With respect to general damages the Commission suggests a range of $5,000 - $15,000. The Commission also suggests the public interest would be served by requiring the Respondent to participate in training specifically in the area of the principles of appropriate accommodation in the workplace.

113. The Respondent argues that it acted in good faith throughout the process. The Respondent notes that the Complainant suffered no loss of income because he remained employed with the Respondent throughout and was paid at the same rate he would have been if he had been the successful candidate for the PC Consultant position. Furthermore in the summer of 2016 he was hired by the Respondent as a PC Consultant II and this position paid a higher rate of pay. With

25

respect to general damages the Respondent accepts the range suggested by the Commission but argues that given the Respondent’s good faith conduct, general damages should fall at the low end or below the low end of the usual ranges.

114. With respect to the public interest remedy, I do order the Respondent to participate in mandatory training to be facilitated by the Human Rights Commission. I find that the deficiencies in the accommodation process in this case can be attributed to significant miscommunication on the part of the Respondent. The Respondent knew it had a legal duty to accommodate the Complainant. The Respondent had a written accommodation policy in place already. The Respondent knew it needed updated information on the Complainant’s condition and functional abilities in order to assess what method of accommodation might be appropriate. However the Respondent’s communication of those requirements to the Complainant was confusing and contradictory. The written requirements presented to the Complainant via the Union were inconsistent with what was said during phone calls. Those written requirements were also inconsistent with the type of medical evidence the Respondent’s witnesses acknowledged they would have actually accepted, or at least considered.

115. I would recommend that the mandatory training include a review of the Respondent’s policies, and its practices in terms of communicating those policies to individuals with whom it is engaged in an accommodation process. On the facts of this case as they became clear during the hearing – This isn’t a case of bad policy per se it’s a case of poor implementation by deficient communication. This resulted in neither party having a good understanding of what medical information was needed in order to assess whether the Complainant could safely perform the duties of the position in question. The Complainant does have a role to play in this process and he must participate in the accommodation process. But it is ultimately the Respondent’s responsibility to ensure a fair accommodation process is followed. This means that the requirements imposed upon the Complainant must be reasonable, those requirements must be communicated to the Complainant with some reasonable level of clarity, and that the Complainant must be given an opportunity to comply with timelines that are reasonable taking all of the circumstances into consideration.

116. With respect to the Complainant’s claim for general damages. General damages may be

ordered to compensate a complainant for injury to dignity, feelings and self-respect. I reviewed quantum of awards for general damages in the recent decision of Zachary Bill v. Allandale Place Condominium Corporation 2020 CanLII 83875 (NL HRC) at paras 98-102.

26

Reference: Zachary Bill v. Allandale Place Condominium Corporation 2020 CanLII 83875 (NL HRC).

117. In this case the Complainant expressed that he was deeply impacted by this incident. He

describes being extremely frustrated and stressed by these events. He described that prior to his injuries he was a healthy and active individual involved in sports of every kind. He is now greatly limited and feels overwhelmed on a daily basis. Although I cannot compensate him for the injuries he suffered in 2009, 2010, and 2012, I take note that he was already vulnerable and under stress at the time the events of 2016 occurred. The impact of the events of 2016 was amplified by his state of vulnerability and he describes that he now finds it very difficult to trust MUN.

118. I would award the Complainant $7,500 in general damages for injury to his dignity, feelings, and

self-respect. I note that this is neither increased nor decreased as a result of the conduct of the Respondent but is based solely on the apparent impact on the Complainant and an attempt to make him whole.

119. With respect to special damages, the Complainant has not suffered any loss of income and his loss under this category is limited to the out of pocket expense associated with obtaining an updated Functional Assessment. The only evidence I have on this was that the cost was $400.00. I order that he be reimbursed for this cost by the Respondent.

120. I would ask the Commission to draft the order reflecting the above and directing that the sums ordered ($7,500 in general damages, and $400 in special damages) be paid to the Complainant by the Respondent within 30 days; and that the Respondent participate in mandatory training to be facilitated by the Commission.

_________________________

C. Brodie Gallant Adjudicator