Human Rights Office

Human Rights Office
Human Rights Office

J.D. v. Sandringham Care Centre and another
 

Summary

Ms. Jessica Davis (J.D.) is a Registered Care Aide (“RCA”). She was employed by Sandringham, a psychogeriatric care facility for over a year as an RCA with no complaints about her work performance. Due to childhood trauma, Jessica Davis (J.D.) has Post-Traumatic Stress Disorder (“PTSD”), and she spent many years in therapy to address her PTSD and to develop coping mechanisms if a situation triggered a re-occurrence. She had shared her diagnosis with Quinn Wolf (Q.W.), also an RCA.

On September 27 and 28, 2012, J.D. took two sick days due to a flare-up of her PTSD symptoms, returning to work on September 30. On September 27, J.D. had a phone conversation with Q.W. about her recent leave. According to Q.W., J.D. told her during this conversation that she "had a monster inside her" and "didn't know how long she could keep it inside her from killing herself." Although acknowledging that she spoke to her co-worker that day, J.D. denied making any remarks of this nature.

Later, Q.W. expressed her concern about J.D. to Debra Kean, the facility executive director, and advised her to “check-in” with J.D to make sure everything was okay. Q.W. denied providing the director, who was not aware of J.D.'s condition, with any details about J.D.'s mental health.

On October 02, J.D. returned to work as resumed her duties as usual, but she was called to a meeting by Ms. Kean ostensibly to give her a pen and card in recognition of her one year of service. However, J.D. claimed that the director then began to repeatedly question her about her recent sick days and ask her how she was "really doing" throughout a two-hour meeting. J.D. began to feel overwhelmingly pressured and disclosed that she had PTSD, that it had caused her to hurt herself in the past, including biting herself or pulling out her hair, but that she did not come to work if she was experiencing symptoms, and was fine after taking time off work. J.D. further claimed that the director strongly urged her to see the staff psychiatrist despite J.D.'s insistence that she had her own doctors and treatment, and that the director repeatedly asked her if she had any other diagnoses, to which she did not respond, and if she had engaged in violent behaviours, to which J.D. responded in the negative.

Feeling extremely upset and humiliated, J.D. accepted the director's offer to take the rest of the day off and texted her husband to come to pick her up. When her husband did not immediately respond, the director continued to insist that someone should take her to the hospital to be assessed. J.D. claimed that she felt that she had no choice but to agree. At the hospital, J.D. was examined by a doctor who determined that her situation was not acute, that she had adequate resources available to her and coping mechanisms in place, and sent her home. After leaving the hospital, J.D. left a voicemail with the director stating that she was very troubled about their meeting and that she was not ready to return to work, to which the director did not respond.

According to the director, however, she had decided to meet with J.D. after receiving anonymous notes regarding concerns about J.D.'s work performance and Q.W.'s suggestion to "check in" with her. The director claimed that J.D.'s body language and withdrawn presence at the meeting indicated that something was wrong and that J.D. told her that "she was okay considering that she came to work compromised." The director claimed that, when she questioned J.D. about being "compromised," J.D. told her that she had "a murderer inside of me," had considered cutting her throat, and had a dissociative personality disorder. She denied that J.D. mentioned anything about having PTSD. The director claimed that she suggested that J.D. go to the hospital as she was concerned that J.D. posed a safety risk to herself or others, and denied forcing J.D. to go to the hospital. Ms. Kean then advised Sandringham's office manager to take J.D. off the call list because she was on medical leave. Neither the director nor Q.W. contacted J.D. after she returned from the hospital to follow up.

On October 8 and 15, J.D. left messages with the director that she was ready to return to work, unaware that she had been placed on medical leave. On October 18, the director met with J.D. and advised her that she was required to provide a "fitness report" from a doctor who had been treating her on a long-term basis stating she was mentally fit to work at Sandringham. Although J.D. questioned the request, she nevertheless agreed and provided a note from her psychiatrist dated November 6, 2012. Although she was ultimately cleared to return to work on November 13, J.D. claimed that she did not feel welcomed and that it was clear that the director did not want her back. She did not return to work at Sandringham.

J.D. alleges that, based on either Ms. Kean’s knowledge or perception of mental disability, she was subjected to an intrusive interview, where she felt compelled to reveal private information about her past, and was thereafter subject to differential treatment based on Ms. Kean’s stereotypical views about J.D.’s mental health.

J.D. filed a complaint alleging that Sandringham Care Centre and Debra Kean discriminated against her in her employment, based on her mental disability or perception of her mental disability, contrary to s. 13 of the Human Rights Code.
 

Questions to be Determined and Findings

Was Mrs. Davis’ mental disability or the Respondents’ perception that she had a mental disability a factor in that adverse treatment? (YES)
 

Reasoning

Credibility was central to the case, in light of the markedly different accounts of the events, the British Columbia Tribunal found J.D. to be a credible witness, and the testimony of Q.W. and the director to be less so, characterizing the director's testimony, in particular, to be "vague," "self-serving," and, at times, "simply not believable." Specifically, The Tribunal did not accept that J.D. had told Q.W. that she had a "monster inside of her," finding it more probable that J.D. said she was stressed and said something about her emotional/psychological state that caused Q.W. concern. The Tribunal also did not accept that Q.W. did not inform the director of J.D.'s mental health issues when she asked the director to "check in" on J.D.

The Tribunal also found that J.D. had not called the director to thank her for her help, that the director had put J.D. on medical leave without her knowledge, that there was no medical evidence supporting this decision, and that the director did not welcome J.D. back to work readily.

The evidence establishes that Ms. Kean perceived J.D to have the mental disability of dissociative personality disorder, and her treatment of J.D. was guided by this misconception. This was incorrect and the evidence respecting J.D. having borderline personality disorder was insufficient.

J.D. had established a prima facie case of discrimination because she had a mental disability, namely PTSD and that she experienced adverse treatment in the form of humiliation being forced to call Q.W. and go to the hospital against her will, being placed on medical leave without her knowledge and losing work as a result, and ultimately losing her job. Finally, the Tribunal held that J.D.'s mental disability, and specifically the director's perception of J.D.'s disability, "was not only a factor but integral to" the adverse treatment:

Because of her stereotypical views about dissociative personality disorder, Ms. Kean determined that Mrs. Davis required immediate treatment and sent her to emergency in the middle of her shift and wearing her scrubs. Ms. Kean directed Mrs. Davis to call Ms. Wolf, even though Mrs. Davis had told her she had contacted her husband and needed to wait for him to call her back. Ms. Wolf immediately came to Sandringham to pick-up Mrs. Davis to take her to emergency. She checked-in with Ms. Kean and drove Mrs. Davis to emergency. She begged Mrs. Davis not to leave the hospital. (p. 305)

Also, the Respondents did not show any evidence of other attempts to approach the situation in a non-intrusive manner.

The Tribunal concluded that the intrusive questioning itself was both discriminatory conduct and an unreasonable approach to ensuring the reasonable safety of Sandringham residents and staff since there were not any performance issues. Therefore, the employer failed in establishing a bona fide occupational requirement and that J.D.'s complaint was justified.
 

Remedy

British Columbia Human Rights Tribunal Member Marlene Tyshynski allowed the complaint, ruling that the director's actions were discriminatory, and awarded J.D. $35,000 in general damages for injury to dignity, plus $784.89 in compensation for lost wages, and $1,539.98 for costs J.D. and her husband incurred to attend the hearing.