Omeltchenko v His Majesty the King in Right of Alberta, 2023 AHRC 18 (Badejo) is a new Alberta Human Rights Tribunal decision where a complainant’s gender discrimination (sexual harassment) claim was unsuccessful in large part because her version of events was not accepted by the tribunal.
This case is an example of the challenging task of assessing credibility of a witness, and the sorts of things decision-makers look for to make credibility assessments.
Facts
The following are the pertinent facts summarized by the Alberta Human Rights Tribunal:
- Eugenia Omeltchenko (the “complainant”) had a short-term contract of employment with the Seniors, Community and Social Services department of the Government of Alberta
- The complainant is female
- The complaint was on the basis of sexual harassment, which in human rights is a gender discrimination complaint
- The complainant alleged that her contract was terminated shortly after she made allegations of sexual assault against her supervisor
- The complainant’s description of the alleged sexual assault was essentially as follows:
- When greeting her, her supervisor would look her up and down and say hello to her in a sexualized tone of voice
- On one occasion, her supervisor pressed up against her backside
- The employer denied the sexual allegations, and said:
- After it was made aware of the allegations, it made sure the complainant did not have to work with that supervisor
- her contract came to an end once the competition to fill the temporary position (that the complainant held) ended. She had the temporary position for about 2.5 months when it ended
Analysis / Conclusion
This case turned almost entirely on the credibility of the complainant versus the credibility of other witnesses.
Tribunal Chair Sandra Badejo first looked at the allegation of sexualized greetings, and determined that they did not occur as stated by the complainant:
[33] I find King’s account of these actual interactions more probable and more credible. This sexualized greeting would have been evident to anyone who was present in the workplace. While not every act of sexual harassment is done in public, this particular one is alleged to have happened in the morning ritual. No other staff person in the open concept workplace was brought forward to corroborate this allegation. The respondent’s witnesses, Ritzen and Basualdo, said that they did not witness such a greeting. If King’s greetings were not as sexualized as claimed by the complainant, then, objectively, the mere saying of hello from a colleague would not be considered sexual harassment under the Act.
The Tribunal’s then considered the allegation that the supervisor (whose name is King) had “pressed” up against the complainant, and determined that it did not happen. The analysis on this point illustrates the sorts of things a decision maker is looking for when assessing credibility of witnesses:
[47] I find that King’s account of the events on October 5, 2018, is far more probable, more credible, and more reliable than that of the complainant. The allegation took place in such an open area, where the risk of a witness would have been extremely high.
[48] There were inconsistencies in the complainant’s account of events, particularly regarding her account of King’s action on that day. Initially it was rubbing, then it was brushing, then it was pressing. The difference between King rubbing or pressing his body against the complainant, as opposed to brushing past her is substantial. Yet the complainant’s testimony changed over time. Overall, not only are the complainant’s accounts of her interactions with King questionable, her accounts of a significant number of interactions with all the respondent’s witnesses are in contrast with those witnesses’ evidence and with the documentary evidence.
[49] Accordingly, I find that King did not touch, press, or rub himself against the complainant on October 5, 2018. To be specific, I find that King did not inappropriately touch the complainant in the photocopy room on that day. If King brushed against the complainant, it was inadvertent. The complainant may have misconstrued this brushing as sexual and exaggerated the claim.
The AHRT concluded in the result that the sexual harassment (gender discrimination) did not take place as alleged by the complainant.
My Take
Credibility assessment is always a challenging exercise, but this case should give some insight into the sorts of things decision makers are looking for to assess credibility.
In this case, I think the fact that the first allegation (about the greetings) presumably would have been witnessed had it occurred, is part of what lost this whole case for the complainant. If the tribunal had found that the first allegation occurred, I think the complainant would have had a better chance at establishing the second allegation as well.
That being said, the analysis of the tribunal on the second point about “pressing” up against the complainant does illustrate that inconsistent testimony can kill a witnesses credibility.
To be clear: like anyone who was not there, I have no idea what actually happened. My summary is based on the factual conclusions of the AHRT and how they got there.
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