STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN SOLOZABAL, )

)

Petitioner, )

)

vs. ) Case No. 85-2351

)

THE FRONTON, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on October 31, 1985, in West Palm Beach, Florida. Petitioner represented himself. Respondent was represented by counsel.

APPEARANCES

For Petitioner: Martin Solozabal, pro se

238 Greenbriar Drive

Lake Park, Florida 33403

For Respondent: Gary W. Roberts, Esquire

Post Office Box 3947

West Palm Beach, Florida 33402 ISSUE

1. Whether Respondent, which owns and operates a jai alai fronton, violated Section 760.10(1)(a), Florida Statutes, by discharging Petitioner, a jai alai player, because of his age or physical handicap, as alleged;

   
   

2. If so, what affirmative relief from the unlawful, employment practice should be granted by the Florida Commission on Human Relations.

   
   

   BACKGROUND

   
   

   On July 8, 1985, Petitioner, Martin Solozabal filed a "Petition for Relief" with the Florida Commission on Human Relations ("Commission") alleging that The Fronton, Inc. (Respondent) had violated the Human Rights Act of 1977, Sections

   760.01760.10, Florida Statutes, by discharging him because of his age or physical handicap. He described the violations thusly:

   
   

   1. age discrimination being the oldest player in the jai alai, sustaining an injury and not being given the opportunity to practice and return to this profession if possible.

      
      

   2. physical handicap--being injured, after several months of recuperation, my contract was at the season's end and I was told my contract would be terminated because as stated by Arthur Silvester, Jr., "with the doctors he had spoken with, he--Mr.

Silvester--said it would take a long time to get well." Yet the Respondent is alleging my termination was due to declining playing ability.

Mr. Solozabal had filed his original charge of discrimination with the Commission in December, 1983. The Commission staff investigated the complaint and issued an investigative report in December 1984, recommending a "No Cause" determination. In February 1985, the Commission's Executive Director, following the recommendation, filed his "Determination" that there was no reasonable cause to believe than an unlawful employment practice had occurred.

On March 14, 1985, Mr. Solozabal requested a redetermination based on 1) the investigator's failure to review past jai alai programs which would have indicated his playing ability and 2) the investigator's use of and reference to a book, entitled, The Other Side of the Screen, which Respondent purportedly gave to the investigator at the informal fact-finding conference. The record does not reflect what action was taken on his request for a redetermination. In any event, a few months later, Mr.

Solozabal timely filed his "Petition for Relief," resulting in this proceeding.

On July 30, 1985, Respondent answered the petition, denying that it had engaged in an unlawful employment practice and asserting nine affirmative defenses.

Hearing was initially set for September 4, 1985, then twice continued on Respondent's motion and reset for October 31, 1985.

At hearing, the following witnesses testified in addition to Mr. Solozabal: James C. Ressler, Administrative Assistant to the corporate president of Respondent: and Pedro Elordi, Respondent's Player-manager. Petitioner's Exhibit Nos. 1-5 and Respondent's Exhibit Nos. 1 and 2 were received in evidence.1

The parties filed post-hearing memoranda or proposed findings of fact by December 4, 1985. Rulings on the proposed findings are contained in the attached Appendix. No transcript of the hearing has been filed.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent, The Fronton, Inc., owns and operates Palm Beach Jai Alai at its fronton or jai alai arena located at 1415 45th Street, West Palm Beach, Florida. Jai alai, billed as "the world's oldest and fastest ball game," is played and wagers are placed at this fronton during the winter season from approximately November 1 of each year to approximately March 13 of the following year. (P-1, P-2)

   
   

2. Although a separate corporation owns and operates Palm Beach Jai Alai and the Newport Jai Alai Sports Theatre, located at 150 Admiral Kalbfus Road, in Newport, Rhode Island, the two businesses are closely related. Both have the same, corporate president and chairman of the board, and both employ the same Player-manager and roster of jai alai players. Newport Jai Alai begins operating each year in June; when it closes in October, its Player-manager and jai alai players travel south and perform at Palm Beach Jai Alai.

   
   

3. Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1983 (prior to March 13, 1983, when the alleged unlawful employment practice occurred) and 1982, the preceding year.

   
   

   [In unlawful employment practice cases under Section 760.01-760.10, Florida Statutes, the aggrieved employee must present a prima facie case. If he does so, the burden shifts to the defendant employer to articulate some legitimate, non-discriminatory reason for its treatment of the employee. If the defendant articulates such a reason, the employee must prove by a preponderance of evidence that the

   reason offered by the employer was a pretext or mask for a discriminatory motive. Hargis v. School Board of Leon County, 400 So. 2d 103, 108 (Fla. 1st DCA 198813]:

   
   

4. Petitioner, Mr. Solozabal (identified in jai alai programs as from Vizcaya, Spain) has been a professional jai alai player for much of his life. He played during his early years, voluntarily left the game in 1971, then returned in 1978, when he was hired, under contract, by Respondent. From 1978 to March 13, 1983, he was one of the jai alai players employed by Respondent who played at the Newport and Palm Beach jai alai frontons. His contract was renewed each year until the end of the 1982-83 season (March 13, 1983) when contrary to his wishes Respondent refused to renew it.

   
   

5. During the 1982-83 jai alai season, Mr. Solozobal, at age 38, was one of the oldest players at Palm Beach Jai Alai. Only one other player was 38--identified in the programs as "Egur": all of the other players were younger. Of the 44 players on the Palm Beach jai alai roster in January, 1983, 18 were in their 30s (only 6 were 35 or older)21 players were in their 20s; and 5 were teenagers. (P-1)

   
   

6. Most (though not all) professional jai alai players reach their peak performance during their 20s. They maintain that level for several years, then during their 30s--their playing ability begins to decline. (Testimony of Elordi)

   
   

7. Although Respondent, at its Palm Beach jai alai fronton, has never employed a player over 40 years old, its Player-manager acknowledges that some players are capable of playing jai alai skillfully well into their 40.. (Testimony of Elordi)

[Since Mr. Solozabal (with the exception of one other 38-year old player) was the oldest player on Respondent's roster of jai alai players, a roster dominated by younger players (38 of 44 players were under age 35), he falls within an age group protected against discharge (or other discrimination in job opportunities) based on age. See, Section 7/60.10(1)(a), Florida Statutes (1983).

1. Mr. Solozabal, employed since 1978 by Respondent, was a qualified and competitive jai alai player. Respondent's Player- manager, who assigns post positions (of which there are 8), appoints teams, and decides what games (of which there are 12) each player will play, admits that Mr. Solozabal was an

   outstanding player in his youth. Respondent kept current statistics on number of games played, wins, places, shows, and percentages for each of its players, and included these statistics in the "programs" sold at each performance. The percentage figures (reflecting the % of games each player won, placed, or, showed) provide a general idea of a player's ability. (Testimony of Elordi)

   
   

2. Respondent's own records (as printed in programs sold to customers) reflect that as of February 27, 1982 (toward the end of the 1981-82 Palm Beach jai alai season), Mr. Solozabal's abilities compared favorably--at least statistically with those of the other players on the roster. His percentage ("in the money") was .419--higher than 34 of the 41 players:

   
   

   NO. PLAYER GP W P S PCT.*

   
   

   10	STEVE	539	60	59	84	.377
   11	ANGEL	619	86	68	57	.341
   12	ANACABE	598	72	71	79	.371
   14	ANSOLA	579	75	77	61	.368
   15	BRUCE	578	70	89	77	.408
   16	LARRINAGA	616	76	71	81	.370
   17	SUAREZ	655	60	78	64	.308
   18	AMOROS	589	72	86	71	.389
   19	EGURBIDE	583	76	72	77	.386
   20	JAUREGUI	468	52	57	71	.385
   22	CORTA	592	83	66	58	.350
   23	SOLO2	597	79	92	79	.419
   24	ARAMENDI	318	45	52	43	.434
   25	AZPIRI	577	70	62	69	.348
   26	GOROS	648	76	75	77	.352
   27	SAEZ	552	89	61	80	.417
   28	LOPETEGUI	575	69	58	66	.336
   29	BERI	618	79	69	89	.383
   31	ZUMETA	576	70	65	65	.347
   39	ARRASATE	552	76	63	66	.371
   33	MENDEZ	611	66	78	79	.365
   34	ARTE	581	84	82	79	.422
   35	BEDIA	490	60	57	73	.388
   36	AZCARATE	593	89	77	84	.422
   37	BARRUTIA	488	59	70	49	.365
   38	BARRENA	584	70	74	68	.363
   40	MENDIA	610	75	70	67	.348
   41	EGUR	630	81	80	73	.371
   42	JAYO	568	77	85	77	.421
   43	MIGUEL II	490	54	83	71	.424
   44	ARETIO	654	78	60	73	.323
   45	JULIO	476	51	55	61	.351
   46	FERNANDO	482	57	55	52	.340

   
   

   (e.s.)

   47 ZOLA 598 69 71 80 .368

   48 MUNO 578 75 87 75 .410

   49 FELIX 564 81 78 76 .417

   50 MEABE 570 65 84 81 .404

   51 CHURRUCA 159 14 17 21 .327

   52 LARRUSCAIN 556 76 85 85 .442

   53 ALTUNA 626 75 64 67 .329

   54 LACA 608 72 64 60 .322

   
   

3. On October 11, 1982, near the end of the following season at Newport Jai Alai, his seasonal percentage of .377-- though not as high continued to compare favorably with those of the other players. Of the 42 players, 22 players had percentages lower than his:

   
   

   NO. PLAYER GP W P S PCT.*

   
   

   10	STEVE	918	108	100	122	.377
   11	ANGEL	852	126	95	95	.371
   12	ANACABE	928	125	108	111	.371
   14	ANSOLA	854	81	125	102	.361
   15	BRUCE	926	129	115	119	.392
   16	LARRINAGA	253	29	26	23	.308
   17	SUAREZ	791	77	85	97	.327
   18	AMOROS	942	122	122	129	.396
   19	EGURBIDE	918	121	124	106	.382
   20	JAUREGUI	782	91	93	91	.352
   21	MICHAEL	789	58	109	117	.360
   22	CORTA	869	117	100	89	.352
   23	SOLO2	957	141	107	113	.377
   24	ARAMENDI	960	130	131	117	.394
   25	JON	874	96	150	132	.432
   26	GOROS	450	37	39	78	.342
   27	SAEZ	910	192	110	89	.430
   28	LOPETEGUI	574	76	61	65	.352
   29	BERI	842	98	123	118	.403
   31	ZUMETA	747	94	84	90	.359
   39	ARRASATE	854	101	90	95	.335
   33	MENDEZ	662	73	85	81	.361
   34	ARTE	746	96	122	109	.438
   35	BEDIA	832	115	116	100	.398
   36	AZCARATE	889	95	152	122	.415
   37	BARRUTIA	927	125	86	98	.333
   38	BARRENA	908	116	115	112	.378
   40	MENDIA	879	133	92	104	.352
   41	EGUR	895	102	114	127	.383
   42	JAYO	786	100	109	84	.373
   43	MIGUEL II	847	117	1005	109	.391
   44	ARETIO	964	99	105	105	.321

   	45	JULIO	941	104	93	129	.346
   	46	FERNANDO	885	120	104	118	.386
   	47	ZOLA	900	105	107	122	.346
   	48	MUNO	880	125	105	125	.403
   	49	FELIX	810	126	99	117	.422
   	50	MEABE	701	97	85	96	.397
   	51	CHURRUCA	726	82	107	108	.419
   	52	LARRUSCAIN	807	79	144	119	.424
   	53	ALTUNA	717	74	94	63	.322
   	54	LACA	931	116	93	82	.311
   (e.s.)

   
   

4. Two weeks into the following season at Palm Beach Jai Alai (in mid-November, 1982) Mr. Solozabal suffered an injury while playing which kept him out of the line-up for the remainder, of the season. The player statistics of January 12, 1983, show that he had played in only 59 games that season (due to his injury), but his percentage "in the money" was

   .4583/higher than all but one of the 44 players:

   
   

   NO. PLAYER GP W P S PCT.*

   
   

   10	STEVE	367	52	45	37	.365
   11	ANGEL	340	50	48	55	.450
   12	ANACABE	130	18	15	16	.377
   14	ANSOLA	333	43	34	44	.363
   15	BRUCE	308	38	36	41	.373
   16	LARRINAGA	336	53	44	29	.375
   17	SUAR	384	42	36	44	.318
   18	AMOROS	346	31	46	54	.379
   19	EGURBIDE	352	55	40	47	.403
   20	JAUREGUI	356	55	40	47	.403
   21	MICHAEL	311	25	52	48	.402
   22	CORTA	342	43	48	35	.354
   23 SOLO 59 9 11 7 .458
   24	ARAMENDI	355	40	46	35	.341
   25	JON	338	34	42	41	.346
   26	GOROS	350	45	40	34	.340
   27	SAEZ	380	77	56	49	.479
   28	LOPETEGUI	385	44	45	39	.332
   29	BERI	347	51	40	37	.369
   30	ZULUETA	344	35	44	48	.369
   31	ZUMETA	347	37	51	49	.395
   32	ARRASATE	181	22	28	17	.370
   33	MENDEZ	372	49	47	45	.379
   34	ARTE	361	39	44	60	.396
   35	BEDIA	193	23	24	24	.368
   36	AZCARATE	398	48	61	54	.410
   37	BARRUTIA	172	18	24	22	.372
   38	BARRENA	345	51	57	45	.443

   	39	BEIDE	319	56	30	35	.379
   	40	MENDIA	406	53	40	36	.342
   	41	EGUR	316	32	40	36	.342
   	42	JAYO	365	47	36	48	.359
   	43	MIGUEL II	335	46	55	46	.439
   	44	ARETIO	384	35	41	45	.315
   	45	JULIO	391	45	36	39	.307
   	46	FERNANDO	350	43	36	50	.369
   	47	ZOLA	346	34	41	59	.387
   	48	MUNO	341	48	50	54	.446
   	49	FELIX	379	49	37	38	.327
   	50	MEABE	356	43	53	57	.430
   	51	CHURRUCA	340	40	38	37	.338
   	52	BARRI	335	43	55	50	.442
   	53	ALTUNA	0	0	0	0	.000
   (e.s.)	54	LACA	277	29 IV.	27	44	.361

   
   

   [These findings support an inference that Mr. Solozabal during the time period in question was a qualified jai alai player who compared favorably with those against whom he played.]

   
   

5. On or about February 16, 1983, Mr. Solozabal--still experiencing dizziness from his November 13, 1982 jai alai injury returned to the Palm Beach jai alai fronton to practice. At that time, the Assistant General Manager told him that he was fired or out of a job Mr. Solozabal immediately went to speak to

   Arthur Silvester, the General Manager. (Testimony of Solozabal, P-5)

   
   

6. On March 11, 1983, Stephen A. Shaivitz, M.D., Mr. Solozabal's treating neurologist, wrote him (Mr. Solozabal) that "you have reached complete improvement and no longer are having symptoms from your head injury. I feel you have reached maximum medical improvement and are now able to return to work." (P-5)

   
   

7. On March 13, 1983, Respondent did not renew Mr. Solozabal's employment contract, allowing it to expire. In a subsequent clarifying letter to Mr. Solozabal dated April 14, 1983, Mr. Silvester stated that he expected him to fully recover from his injury and "thus your injury was not even considered a factor in this] decision [not to renew Mr. Solozabal's contract]." He explained that his decisions on whether to renew a contract were based "on the needs of the company, taking into consideration each individual player's performance and ability." (P-4)

8. The contracts of other jai alai players on the Palm Beach jai alai roster were renewed though their playing performances were similar to or less favorable then Mr. Solozabal's when measured by the statistics contained in Respondent's jai alai programs. However, at the time his contract expired, Mr. Solozabal had fully recovered from his previous injury, he was willing and able to resume playing jai alai, and he was not inflicted with a physical handicap.

   
   

   [Thus Mr. Solozabal presented a prima facie case of employment discrimination based on age. He satisfied the requisite elements: 1) that he belonged to a group protected by the statute 2) that he was qualified for the job which he held 3) that he was, in effect, discharged by Respondent's failure to renew his employment contract and 4) that, after his discharge, Respondent retained or renewed the contracts of other similar or less qualifled jai alai players, when judged by players' statistics. See, Hargis, supra: Whiting v. Jackson State University, 616 F.2d 116, 120-121 (5th Cir. 1980) Section

   760.10(1) (a), Florida Statutes (1983). He

   failed, however, to substantiate his charge of discrimination based on handicap, since both he and his employer recognized that he had fully recovered from his injury prior to the expiration of his contract on March 13, 1983.]

   
   

9. Respondent articulates a legitimate non-discriminating reason for its decision not to renew Mr. Solozabal's playing contract. Its General Manager states that "the reason for this decision was the declining ability of Mr. Solozabal on the playing court over a long period of time with no indication of any potential for improvement." (R-2)

   
   

10. Pedro Elordi, Respondent's Player-manager, also asserts that Mr. Solozabal's playing ability had declined particularly his speed, reflexes, and legs. He also contends that players' statistics though a good general indicator of playing ability do not always reflect the true abilities of a jai alai player. As the handicapper or matchmaker for Respondent, Mr. Elordi tried to give players of different abilities an equal opportunity to win. He did this by assigning post positions (which determine the order of the players in each game) in accordance with playing ability. Weaker players were assigned post positions 1 through

    3, and 8--the most advantageous positions stronger players were assigned positions 4 through 7, the more difficult positions.

    
    

    VI.

    
    

    [Respondent has thus met its burden of articulating a legitimate, non-discriminatory reason for its decision not to renew Mr.

    Solazabal's employment contract.]

    
    

11. If Respondent's asserted reason for non-renewal--Mr. Solozabal's declining playing ability was, in fact, the sole motivating force, it would be reasonable to expect that, in the months prior to March, 1983, Mr. Solozabal was assigned advantageous post positions in order to compensate for his lessened playing ability. But the jai alai programs in evidence show precisely the opposite. Programs for June 1982, show that he was assigned the advantageous post positions (reserved for the comparatively weaker players) in only 6 of 14 games or 43%. In July 1982, he was assigned the advantageous post positions in only 7 of 25 games--or 28% in August 1982, only 11 of 58 or 18% in September 1982, only 2 of 19 or 10% and in October 1982, only

    5 of 25 or 20%. These post positions belie the assertion that his playing ability had declined relative to the other players. The fact that in most games she was assigned post positions normally given to the better players also supports an inference, now drawn, that Respondent's asserted reason for non-renewal was a pretext for or masked a motive to discriminate against him based on his age.

    
    

    CONCLUSIONS OF LAW.

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

13. Mr. Solozabal is a person within the meaning of Section 760.02(5), and respondent is an employer within the meaning of Section 760.02(6), Florida Statutes (1983).

    
    

14. Section 760.10(1)(a), Florida Statutes (1983, in relevant part, makes it an unlawful employment practice for an employer to discharge or otherwise discriminate against any employee based on age or handicap.

    
    

15. The Human Rights Act of 1977, Sections 760.01-760.10, Florida Statutes (1983), is patterned after Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et. seq. Federal case law construing Title VII thus offers guidance. Hargis, supra, at 103, 108. The standards of proof enunciated by

    the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), apply to disparate treatment cases arising under the Human Rights Act. See also, Hargis, supra Whiting, supra. In cases involving an alleged discriminatory discharge of an employee, the McDonnell standards require prima facie proof of unlawful discrimination Mr. Solozabal sustained this burden as to his claim of age discrimination, though he failed to sustain his claim of discrimination based on handicap. Next, under McDonnell, the employer must come forward and articulate some legitimate non-discriminatory reason for its action this Respondent did. Finally, the burden shifts back to the employee to prove, by a preponderance of evidence, that the reason offered was a pretext for a discriminatory motive Mr. Solozabal has shown Respondent's stated reason to be pretextual. Accordingly, it is concluded that Respondent violated Section 760.10(1)(a), Florida Statutes, by failing to renew Mr. Solozabal's contract based, at least in part, on his age. The charge of discrimination based on physical handicap has not been proven.

16. When an unlawful employment practice is found, the Commission must "issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees." Section 760.10(13), Fla. Stat. (1983). In the instant case, such affirmative relief requires that Mr. Solozabal be paid back pay (accruing since March 13, 1983) and be reinstated to his former position, should he so choose. (The amount of back pay should be determined in supplementary proceedings before the Commission.)4

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Commission on Human Relations enter an order: 1) finding that Respondent violated Section 760.10(1)(a), Florida Statutes (1983), by failing to renew Mr. Solozabal's contract because of his age; 2) awarding back pay, the amount to be determined in supplementary proceedings; 3) requiring reinstatement of Mr. Solozabal to his former position of employment with Respondent; and 4) requiring Respondent to cease and desist from discriminating against Mr. Solozabal on ~he basis of his age.

DONE and ORDERED this 30th day of January, 1986, in Tallahassee, Florida.

R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986.

ENDNOTES

1/ Petitioner and Respondent's exhibits will be referred to as "P- ", and "R- ", respectively.

2/ "Solo" is the name under which Mr. Solozabal plays jai alai.

3/ The small number of games played by Mr. Solozabal (due to his injury) during the 1982-83 Palm Beach Jai Alai season detracts from the weight to be given this comparison, since the other players played many more games.

4/ No evidence was presented on Mr. Solozabal's compensation as a jai alai player. However, to deny back pay based on such an omission--especially in light of his pro se representation and the fact that his past compensation should be known to both parties would be the height of gamesmanship.

COPIES FURNISHED:

Martin Solozabal, pro se

238 Greenbriar Drive

Lake Park, Florida 33403

Gary W. Roberts, Esquire

P. O. Box 3947

West Palm Beach, Florida 33402

APPENDIX

1. RULINGS ON PETITIONER'S PROPOSED FINDINGS

   
   

   Mr. Solozabal submitted post-hearing argument which is not conducive to explicit rulings.

   
   

2. RULINGS ON RESPONDENT '5 PROPOSED FINDINGS 1-3. Approved.

1. Approved, except sentences 5 and 6 are rejected as non- sequitor.

   
   

2. Paragraph 1: approved.

Paragraph 2: rejected as unsupported by the weight of the evidence.

Paragraph 3: rejected, since the first half of the sentence is mere recitation of testimony, the second half of the sentence is not inconsistent with the first half, and the second half was not sufficiently proven since Mr. Elordi hesitantly acquiesced to the validity of the 1% figure when it was presented to him by way of a leading question.

Paragraph 4: approved, except for the statements that respondent had already decided not to renew Mr. Solozabal's contract because of his declining skills, ability, and failure to progress, and that, but for his declining skills, he would not have been injured in November, 1982, both of which are rejected as not supported by the weight of the evidence.

Paragraph 5: rejected (except for the last sentence) as unsupported by the weight of the evidence. Most of the programs cover the 5 months immediately preceding his injury. Mr.

Elordi's testimony that Mr. Solozabal's playing abilities had declined (relative to the other players on the roster) is lacking in credibility.

Paragraph 6: rejected as unsupported by the weight of the evidence, since this contract was not placed in evidence and Mr. Solozabal's playing abilities compared favorably with those of the other players on the roster.

Docket for Case No: 85-002351

Orders for Case No: 85-002351