STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON A. ST. LAURENT,

vs.

Petitioner,

Case No. 15-6722

PLACIDA SAS, LLC, d/b/a THE FISHERY RESTAURANT,

Respondent.

/

RECOMMENDED ORDER

John D.C. Newton, II, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this matter on February 10, 2016, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Jon A. St. Laurent, pro se

Post Office Box 27083

El Jobean, Florida 33927

For Respondent: Wendy Hummel, Manager

Placid SAS, LLC, d/b/a the Fishery Restaurant

Suite 102A

3300 Tamiami Trail

Port Charlotte, Florida 33952 STATEMENT OF THE ISSUE

Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?

PRELIMINARY STATEMENT

Mr. St. Laurent filed a charge of age discrimination by Placida with the Florida Commission on Human Relations (Commission) on June 26, 2015. The Commission, on October 26, 2015, determined there was reasonable cause to believe Placida had discriminated against Mr. St. Laurent because of his age. Mr. St. Laurent filed his Petition for Relief with the Commission on November 13, 2015. On November 24, 2015, the Commission referred the matter to the Division of Administrative Hearings (DOAH) to conduct the hearing. The undersigned scheduled the hearing to be held February 10, 2016, in Punta Gorda, Florida.

The Order of Pre-Hearing Instructions, rendered December 7, 2015, required the parties to exchange witness lists and copies of documents a party may offer as exhibits. The Order cautions: “Failure to do so [exchange witness lists and exhibits] may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed.” On February 1, 2016, the undersigned conducted a pre-hearing conference. Mr. St. Laurent and Placida owner, Marianito Asperilla, participated. The undersigned reminded the participants of the duties imposed by the Order of Pre-hearing Instructions and the consequences of not complying with the Order.

The hearing convened as noticed. Mr. St. Laurent offered Petitioner’s Exhibit 1 into evidence and testified on his own

behalf. Wendy Hummel testified on behalf of Placida. Placida Exhibit 1 was admitted. Placida Exhibits 2 and 3 were not admitted because of failure to comply with the Order of Pre- Hearing Instructions. The transcript was filed February 29, 2016. Placida timely filed a Proposed Recommended Order, which has been considered. Mr. St. Laurent did not file a proposed recommended order.

FINDINGS OF FACT

1. Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus.

2. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season.

3. Mr. St. Laurent responded to the advertisement.

   
   

   Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old.

4. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015.

   Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also

   
   

   asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant.

5. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job.

6. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking.

7. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation.

8. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to

   
   

   believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive.

9. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age.

10. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned

    $4,816. In addition, Mr. St. Laurent would have been paid a

    
    

    $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.

    
    

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

11. Sections 120.569 and 120.57(1), Florida Statutes (2015)1/ grant DOAH jurisdiction over the subject matter of this proceeding and of the parties.

    Proof of Discrimination

    
    

12. Mr. St. Laurent maintains that Placida discriminated against him in his application for employment because of his age. Mr. St. Laurent must prove his claims by a preponderance of the evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., Inc.,

    670 So. 2d 932 (Fla. 1996).

    
    

13. Sections 760.10(1)(a) and (b), Florida Statutes, make it unlawful for an employer to take adverse action against an individual because of the individual's age. Sunbeam TV Corp. v. Mitzel, 83 So. 3d 865, 866 (Fla. 3d DCA 2012); Miami-Dade Cnty. v.

    Eghbal, 54 So. 3d 525 (Fla. 3d DCA 2011), Reh. denied,

    
    

    Case No. 3D10-1596 (Fla. 3d DCA 2011), Rev. denied, 71 So. 3d 117

    
    

    (Fla. 2011); Bratcher v. City of High Springs, Case No. 11-2999

    
    

    (Fla. DOAH Sept. 28, 2011), rejected in part, Case No. 2011-358, FO No. 11-91 (Fla. FCHR Dec. 7, 2011).

14. The Florida Legislature patterned chapter 760 after Title VII of the Civil Rights Act of 1964, as amended. Consequently, Florida courts look to federal case law when

    
    

    interpreting chapter 760. Valenzuela v. GlobeGround N. Am., LLC,

    
    

    18 So. 3d 17 (Fla. 3rd DCA 2009).

    
    

15. A party may prove unlawful discrimination through direct evidence of discrimination. City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008), Reh. denied, Case No. 4D07-392

    (Fla. 4th Dist. Ct. App. Aug. 21, 2008). Direct evidence is something like a discriminatory statement by a supervisor, such as Ms. Hummel made, that requires no interpretation or inferences to manifest the discrimination. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).

16. To ultimately prevail in an age discrimination case, the job applicant or employee must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the "but-for" cause of the employer’s decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); Voce v. Holy Cross

    Hosp., DOAH Case No. 13-1990 (Fla. DOAH June 25, 2015; FCHR Case

    
    

    No. 2013-00122 [Sept. 17, 2015]).

    
    

17. Mr. St. Laurent has proven unlawful discrimination through direct evidence. The preponderance of the credible, persuasive evidence proves that, but for Mr. St. Laurent’s age, Placida would have employed him in late February 2015.

    Remedy

    
    

18. If an Administrative Law Judge, as in this matter, finds a violation of the chapter 760, section 760.11(6) requires

    
    

    recommending that the Commission issue an order “prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay.”

19. The amount of back pay in this matter is $5,316.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order that:

1. Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A.

   St. Laurent, solely because of his age;

   
   

2. Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and

3. Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00.

DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.

ENDNOTE

1/ All citations to the Florida Statutes are to the 2015 codification unless otherwise noted.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 (eServed)

Wendy Hummel

Placid SAS, LLC, d/b/a the Fishery Restaurant Suite 102A

3300 Tamiami Trail

Port Charlotte, Florida 33952

Jon A. St. Laurent Post Office Box 27083

El Jobean, Florida 33927 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 15-006722

Orders for Case No: 15-006722