15-002543 Sergey P. Shashelev vs. Cirque Du Soleil Status: Closed Recommended Order on Tuesday, October 11, 2016.

Summary: Petitioner failed to prove that Respondent discriminated against him based on his age or his disability. Respondent articulated a legitimate non-discriminatory reason for terminating his employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SERGEY P. SHASHELEV,

Petitioner,

vs. Case No. 15 - 2543

CIRQUE DU SOLEIL,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was condu cted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on February 2 and 3 and

March 2, 2016, in Orlando, Florida.

APPEARANCES

For Petition er: Jamison Jessup , Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738

For Respondent: Nicole Alexandra Sbert, Esquire

Jackson Lewis LLP

390 North Orange Avenue , Suite 1285

Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Petitioner, Sergey P. Shashelev, was subject to an

unlawful employment practice by Respondent, Cirque d u Soleil,

based on his age and disability in violation of the Florida Civil

Rights Act, section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On September 5, 2014, Petitioner, Sergey P. Shashelev

(ÐPetitionerÑ), 2/ filed a complaint of discrimination with the

Florida Commission on Human Relations (the ÐCommissionÑ)

alleg ing tha t Respondent, Cirque d u Soleil (ÐCirqueÑ), violated

section 760.10, by discriminating against him based on his age

and disability.

On March 30, 2015, the Commission issued a Notice of

Determination: No Cause , stating that it found no reasonable

cause exist s to believe that an unlawful employment practice

occurred.

On or about April 30, 2015, Petitioner filed a Petition for

Relief with the Commission. On May 1, 2015, the Commission

transmitted the petition to the Division of Administrative

Hearings (ÐDOAHÑ) and requested assignment of an Administrative

Law Judge (ÐALJÑ) to conduct an administrative hearing in this

matter.

The final hearing was initially set on September 17 and 18,

2015. Following a motion from Respondent, the final hearing was

continued unt il February 2 and 3, 2016. PetitionerÓs motion to

be represented by a qualified representative was granted pursuant

to Florida Administrative Code R ule 28 - 106.106. Prior to the

final hearing, Petitioner also moved to amend his Petition for

Relief, which was granted over RespondentÓs objection. 3/ In

addition, based on PetitionerÓs request, one deaf interpreter and

two certified American Sign Language (ÐASLÑ) interpreters were

provided at all times during the final hearing. 4/ The final

hearing was held on those dates, but not completed. The final

hearing was continued on March 1, 2016, on which date th e final

hearing was concluded.

At the final hearing, Petitioner testified on his own

behalf. Respondent presented the testimony of Jolla Biegaj

(Assistant Company Manager) ; Pierre Parisien (Senior Artistic

Director) ; Daniel Ross (Artistic Director) ; Dave Wallace (Cirque

employee) ; Kristine Cuellar ; Shannon Page ; and Angela Roth.

RespondentÓs Exhibits 1 through 9, 11 , 12, 14 through 20, and 23

were admitted into evidence.

A five - volume T ranscript of the final hearing was filed on

May 9, 2016. At the close of the hearing, the parties were

advised of the ten - day timeframe following DOAHÓs receipt of the

hearing transcript to file post - hearing submittals. The parties,

twice, jointly moved for enlargement of time to file proposed

recommended orders, which were granted. Thereafter, Petitioner

filed an additional unopposed motion to enlarge time, which was

also granted. The parties filed Proposed Recommended Ord ers

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Cirque is a live entertainment company founded in

Quebec , Canada, that dedicates itself to creating, producing, and

performing artistic works around the world. Cirque currently

presents a show called ÐLa NoubaÑ in Orlando, Florida. La Nouba

is a contemporary circus performance featuring acrobats,

gymnasts, and other skilled performers , including clowns.

La Nouba employs approximately 65 performers.

2. La Nouba is a resident show located at Disney Springs at

the Walt Disney World Resort (ÐDisneyÑ) in Orlando. Cirque

contracts with Disney to present La Nouba at Disney Springs.

La Nouba is housed in a fixed theatre and does not travel.

La Nouba has presented ten s hows a week at Disney since 1998.

3. Petitioner was born in Russia in 1960. He was born

deaf. From the tim e Petitioner turned eight years old, he knew

he wanted to be a clown. During his teens, Petitioner studied

miming. He soon became a highly traine d artist with a unique

skill in pantomime. When Petitioner was 21, he joined the

Leningrad Litsedei (Ðthe JestersÑ) Clown Mime Theater, world

renowned clowns and mimes. For the next 15 years, Petitioner

toured the world with the Letsedei group performing and

developing his clown personality.

4. Because Petitioner has been deaf since birth, he is not

able to speak. Petitioner communicates through sign language.

Petitioner is proficient in ASL , Russian Sign Language, and

Quebec Sign Language (used in Fre nch - speaking parts of Canada).

Petitioner considers Russian Sign Language his native tongue.

His ability to read and comprehend English text is limited.

5. The parties both described clowning as an art form.

Clowns are artists, and each individual clow n is unique. The art

of clowning comes from the performerÓs heart. Clowns have

different personalities, emotions, rhythm, sensibilities, and

style. Even if two clowns performed the same act, the

pe rformance would look different.

6. Cirque fi rst hired P etitioner in January 1994.

Mr. Gilles St. Croix, CirqueÓs Creative Guide, hired Petitioner

to perform in the Cirque show ÐAlegria.Ñ Cirque hired Petitioner

for his miming skills. Based on PetitionerÓs artistic specialty

and clown personality, Cirque ch ose Petitioner to portray a

Ðdown - and - outÑ clown. Cirque readily agrees that Petitioner is a

very talented, Ðworld - classÑ clown. (Cirque expressed that it

would hire no less.) Cirq ue does not dispute that Petitioner is

a master at his craft.

7. When Pe titionerÓs contract with Alegria ended,

Mr. St. Croix asked Petitioner to join the cast of a new

production Cirque was developing in Orlando that would become

La Nouba. Mr. St. Croix was aware that Petitioner was deaf when

he hired him. Cirque viewed P etitionerÓs disability as an asset.

PetitionerÓs disability became a gift to his performance and

creativity. Miming allowed him to communicate with people of

many nationa lities.

8. Cirque hired Petitioner together with his partner,

Michel Deschamps, who went by the clown name ÐBalto.Ñ Petitioner

and Balto created five clown acts that were incorporated into

La Nouba. The combined acts took up approximately 15 to 18

minutes of show time. From 1998 through 2014, Petitioner

performed the same clown act w ith Balto. Petitioner and Balto

were part of La NoubaÓs original cast and always performed their

clown act together.

9. Currently, La Nouba artists and performers report to

Daniel Ross, La NoubaÓs Artistic Director. Mr. Ross became the

productionÓs Arti stic Director in 2010. Mr. Ross reports to the

Senior Artistic Director, Pierre Parisien. Mr. Parisien became

the Senior Artistic Director for La Nouba in 2000. Neil Boyd is

La NoubaÓs current Company Manager.

10. CirqueÓs workforce is diverse. Across its worldwide

productions, Cirque employs approximately 1,300 individuals who

are 40 or older including four or five clowns. At La Nouba,

approximately 70 Cirque employees are over 40.

11. Cirque also employs individuals who have disabilities.

Two of t hese employees are clowns and are also deaf or hard of

hearing.

12. Cirque enters into individual written contracts with

its artists. The initial Artist Agreement (ÐArtist AgreementÑ)

is for a period of two years. Thereafter, ea ch contract is

renewable in one - year increments. Cirque drafted Artist

Agreements for a defined period of time because Cirque desired to

maintain the flexibility to adjust or change its shows and

artists when necessary. Cirque never intended its artists to be

permanent performer s in a production. Cirque regularly replaces

artists and integrates new acts into existing shows.

Accordingly, Artist Agreements allow Cirque to terminate an

artist at any time.

13. In April 1998, Petitioner and Cirque executed a Letter

of Intent whereb y Petitioner agreed to begin work for La Nouba.

In March 1999, after a negotiation process, Petitioner signed a

formal Guest Artist Agreement for La Nouba. PetitionerÓs initial

Artist Agreement ran from October 5, 1998 , through December 22,

2000 (notwith standing the date of PetitionerÓs signature).

Thereafter, PetitionerÓs Artist Agreement could be renewed every

year Ðupon the mutual consent of both partiesÑ for Ðadditional

and consecutive periods of one (1) year each.Ñ Petitioner signed

the Artist Agre ement and initialed every page. Cirque and

Petitioner subsequently renew ed his Artist Agreement every year

from 2000 throug h 2013 in one - year increments.

14. On August 16, 2013, Petitioner and Cirque signed what

was to become PetitionerÓs final contract extension. The parties

agreed to renew PetitionerÓs Artist Agreement for the period

running from January 1, 2014 , through December 31, 2014.

15. PetitionerÓs Artist Agreement was written in English.

Petitioner testified that, because he could not read E nglish, he

did not comprehend all the contract provisions. He just signed

the Artist Agreement and went to work. Petitioner expressed that

at the time he executed his initial contract, he believed that

his position was permanent until he decided to leave or retire.

16. PetitionerÓs Artist Agreement did not contain any

written provisions stating that Petitioner could stay at La Nouba

until he retired from the show. On the contrary, Cirque could

terminate PetitionerÓs Artist Agreement at any time without

cause. As stated in PetitionerÓs Artist Agreement, section 9.3:

[Cirque d u Soleil Orlando, Inc.] shall have

the right to terminate this agreement without

cause, upon simple notice to the Artist,

provided the Producer pays the Artist, as

severance compensa tion, the amount determined

in accordance with the calculations mentioned

in Schedule D to this agreement.

17. Cirque also prepared a separate annual contract renewal

letter which indicates whether an artist receives a raise. In

PetitionerÓs August 16, 2013, renewal letter, Cirque agreed to

pay Petitioner $506.66 for each La Nouba performance or

approximately $250,000 per year. Cirque highly compensates its

clowns because they are unique and difficult to find. By the end

of his employment, Petitioner w as one of CirqueÓs highest paid

performing artist s .

18. In addition to the Artist Agreement, Cirque employees

receive the Cirque Human Reso urce Artist Rules and Policies

M anual (ÐRules and Policies ManualÑ).

19. During PetitionerÓs employment with La Nou ba, Cirque

voluntarily arranged and paid for Petitioner to use certified ASL

interpreters on many occasions to communicate with CirqueÓs

management team and fellow performers. Cirque provided

Petitioner with an interpreter for every weekly artist meeting,

all annual contract renewal meetings, as well as every annual

performance evaluation meeting. No terms in PetitionerÓs Artist

Agreement required Cirque to obtain an interpreter for

PetitionerÓs use during Cirque functions.

20. When Cirque met with Petit ioner to execute his initial

Artist Agreement, Cirque obtained the services of an interpreter

to assist Petitioner. During this meeting, Cirque did not direct

the interpreter to translate the full contract terms, word - for -

word from English to ASL, for Pet itioner. Neither did Petitioner

ask the interpreter to interpret every word of his Artist

Agreement. Although Cirque provided Petitioner a copy of the

Artist Agreement, he did not have someone translate all the

provi sions of the document for him.

21. Ev ery year when Petitioner and Cirque met to renew

PetitionerÓs Artist Agreement, Cirque arranged for the presence

of a certified ASL interpreter during the meeting. As with his

initial contract, Cirque allowed Petitioner the opportunity to

ask the interpre ter questions about the terms of his renewed

Artist Agreement. Petitioner never asked the interpreter to

interpret every word of his contract. Petitioner signed every

contract renewal letter. Cirque provided Petitioner copies of

all renewal letters.

22. Mr. Parisien, CirqueÓs Senior Artistic Director,

attended PetitionerÓs last four contract renewal meetings. At

each meeting, Mr. Parisien advised Petitioner that his contract

was renewed for only one year. Mr. Parisien never communicated

to Petitioner that he had a lifetime employment with La Nouba.

Petitioner never complained to Mr. Parisien about the contract

terms or renewal process. Neither did Petitioner ever express to

Mr. Parisien that he was under the impression that he had a

lifetime or perma nent employment with La Nouba.

23. La Nouba scheduled weekly artist meetings which were

held every Tuesday. At these Tuesday meetings, Cirque relayed

announcements or comments that pertained to the artists,

La Nouba, or Cirque. At every Tuesday meeting , Cirque provided

Petitioner with a certified ASL interpreter. Petitioner was free

to ask questions or raise any concerns through the interpreter at

these meetings.

24. Although the Tuesday artist meetings typically lasted

15 minutes, PetitionerÓs interp reters were hired for two - hour

blocks of time. Following the meetings, the interpreters were

available for PetitionerÓs personal use to communicate with

Cirque employees for the remainder of the two hours. On

occasions, Petitioner took advantage of the i nterpreters to

converse with Cirque management and fellow performers .

25. Cirque also arranged and paid for interpreters to

assist Petitioner in other matters including health insurance

issues, as well as communications with other La Nouba performers,

tra iners, costumers, and Cirque employees. Cirque also provided

Petitioner the use of interpreters for press events, rehearsals

for a special show, a workshop, and several other im portant

meetings including three to four annual company meetings.

26. From 19 98 through the end of his employment in 2014, no

evidence indicates that Cirque ever denied any request from

Petitioner for an interpreterÓs assistance during a La Nouba

event or an employee meeting. Cirque was not aware of any

complaints from Petitioner that he could not effectively

communicate with Cirque management or fellow performers.

27. In addition to interpreter services, Cirque provided

Petitioner with a cell phone/pager to communicate with Cirque

1 1

employees. This device allowed Petitioner to com municate, via

text, in a simple manner. Petitioner was the only artist Cirque

provided with a cell phone/pager.

28. In addition to the interpreters, several Cirque

employees knew sign language. These individuals included Balto,

PetitionerÓs partner in h is clown act, and David Wallace, a

Cirque sound engineer. Cirque occasionally requested Balto or

Mr. Wallace to help communicate with Petitioner.

29. At the final hearing, Petitioner testified that Cirque

did not provide him the benefit of an interpreter for every show

related event or gathering. An interpreter was not present

during show rehearsals. Without an interpreter, Petitioner felt

that he had a very limited ability to communicate with the other

performers or management. Petitioner felt that th e lack of an

interpreter hindered his creative process. In addition,

Petitioner described one La Nouba affair during which Cirque did

not provide him an interpreter. This event was La NoubaÓs 15th

anniversary party in December 2013. Mr. Wallace offered some

assistance communicating the speeches to Petitioner based on his

limited sign language. Petitioner, however, felt left out and

was not able to fully participate in the party. Petitioner did

not request Cirque provide him an interpreter for the party . The

party was not a mandatory event for Cirque employees.

30. Mr. Ross, as La NoubaÓs Artistic Director, evaluated

all artistsÓ performance, including Petitioner. From 2010 to

2013, Mr. Ross prepared an annual performance evaluation for

Petitioner. C irqueÓs Rules and Policies Manual, section 13,

stated that performance evaluations were based on several

elements including: 1) artistic quality of performance;

2) performance -- acrobatic/musical/character ; 3 ) attitude ; and

4) health care.

31. Mr. Ross personally presented Petitioner his annual

performance evaluation. Each year, Mr. Ross and Petitioner

reviewed PetitionerÓs performance evaluation in the presence of a

certified ASL interpreter and another witness. All evaluations

were read to Petitioner (through the interpreter). Petitioner

signed every evaluation. During these meetings, Petitioner had

the opportunity to ask Mr. Ross questions or raise any other

issues through the interpreter. Petitioner never asked the

interpreter to read the perform ance evaluation line by line.

32. Every year, Petitioner received overall positive

ratings from Mr. Ross. For example, in PetitionerÓs 2011

performance evaluation, Mr. Ross commented that PetitionerÓs

Ðclown is very charming and the audience is always to uched by his

performance.Ñ In 2012, Mr. Ross commented that Petitioner

Ðmasters his art as a clownÑ and Petitioner is a Ðbeautiful

performer. . . . He is funny and touching.Ñ In 2013, Mr. Ross

commented that PetitionerÓs Ðexperience and talent are

unque stionable.Ñ According to Petitioner, Mr. Ross always had

positive things to say about his clown act. Mr. Ross conveyed to

Petitioner that he was a great asset to La Nouba and very

pleasant to deal with. At the final hearing, Mr. Ross also

expressed that Petitioner was a beautiful performer and an

excellent and talented clown.

33. However, over the course of his years supervising

PetitionerÓs act, Mr. Ross observed that PetitionerÓs act had

become routine. Petitioner was not taking risks or evolving his

presentation. Mr. Ross noted in PetitionerÓs performance

evaluations that PetitionerÓs Ðroutine is almost too consistent.

He could take more risks and explore further within the routines.

As a result, there is very little evolution in [PetitionerÓs]

pe rformance . . . consistency in the performance is such that it

can feel too permanent sometimes. I would love to see

[Petitioner] take more risks and let the present moment influence

his performance more.Ñ (August 2011) ÐSometimes we would like

to see [ Petitioner] taking more risks and keeping the performance

on the edge; this would help him not to fall into a

routine. . . . No significant evolution.Ñ (July 2012)

Petitioner Ðsticks to the show material and very rarely explores

new avenues. . . . He has to be careful not to let the routine

diminish his performance level.Ñ (July 2013)

34. Cirque spends up to two years creating a show.

Thereafter, to keep up with industry trends, look vibrant,

maintain market share, and stay relevant, Cirque adjusts and

evolves its shows over time. Changes include altering existing

acts, integrating new acts, modifying the costumes, replacing

acts and/or artists, transforming the music, and varying the

choreography. Introducing new elements and updating shows

provid es Cirque another opportunity to advertise and market its

shows to the public. This step increases the likelihood of

repeat customers. Conversely, Cirque believes that if it does

not evolve its shows, its sales are negatively impacted.

35. Around 2012, Cirque shows began to experience a decline

in sales. Consequently, CirqueÓs owner, Guy Laliberte, directed

that all Cirque shows be changed and upgraded. Mr. Laliberte

wanted to increase the quality of the shows and keep them

relevant. In the summer of 2013, Mr. Laliberte instructed

Mr. Parisien to change La Nouba before the end of 2015. Cirque

planned for significant changes to occur to La Nouba from 2013

through 2015.

36. During this time, Disney also expressed a desire for

Cirque to revamp La Nouba . La NoubaÓs contract with Disney was

scheduled to expire in December 2017. Mr. Laliberte desired the

changes to La Nouba made before CirqueÓs contract with Disney

ended in order to extend the contract.

37. In July 2013, PetitionerÓs partner, Balto, ann ounced

that he was retiring from La Nouba. BaltoÓs retirement was

unexpected. Balto asked Mr. Parisien if his last day could be

April 19, 2014. Mr. Parisien agreed.

38. Initially, Cirque was uncertain how BaltoÓs retirement

would impact PetitionerÓs po sition with La Nouba. Losing one

half of the clown act would certainly affect PetitionerÓs

routine. Mr. Parisien was open to all possibilities as to how to

handle the change.

39. Because Petitioner was scheduled to renew his annual

Artist Agreement for 2014 in January 2014, and Balto was not

leaving until April 2014, Mr. Parisien decided that Cirque should

renew PetitionerÓs contract with La Nouba for the full year (from

January through December 31, 2014). Mr. Parisien met with

Petitioner in August 2013 to discuss renewing his Artist

Agreement in light of BaltoÓs retirement. Mr. Parisien advised

Petitioner that Cirque would agree to renew his contract for all

of 2014. PetitionerÓs renewal letter stated that renewal was

under the same terms and conditio ns as his original Artist

Agreement. Cirque obtained an interpreter who was present to

assist P etitioner during this meeting.

40. Despite renewing PetitionerÓs Artist Agreement,

Mr. Parisien advised Petitioner that the La Noub a clown act was

going to ch ange, b ut he had not yet determined how.

Mr. Parisien recognized that BaltoÓs retirement provided La Nouba

the opportunity to evolve the clown act in compliance with the

mandate by Mr. Laliberte and Disney.

41. Mr. Parisien considered three options as t o how to

change La NoubaÓs clown act. First, Cirque could find Petitioner

another partner. Second, Petitioner could continue as a solo

clown act. Or, third, La Nouba could replace Petitioner and

BaltoÓs clown act with two different clowns.

42. Mr. Pari sien discussed these three options with

Mr. Ross, La NoubaÓs Artistic Director. Mr. Ross had no

preferen ce and was open to all options.

43. During the fall of 2013, Mr. Parisien and Mr. Ross met

with Petitioner several times to discuss the various optio ns for

the clown act. Cirque obtained an interpreterÓs services for

each meeting. Mr. Parisien and Mr. Ross advised Petitioner that

they had not decided on which dir ection to take the clown act.

Petitioner acknowledged that Cirque was in the process of

changing and upgrading La Nouba. However, Petitioner conveyed to

Mr. Parisien and Mr. Ross that he did not want his clown act to

change. Petitioner suggested that Cirque hire Maxim Fomitchev

(ÐMaxÑ), a clown performing on the Cirque show, Alegria.

Altho ugh Petitioner had never worked with Max, Petitioner

suggested that he and Max would continue to perform the same

clown act that Petitioner originated with Balto. Mr. Parisien

agreed to consid er PetitionerÓs recommendation.

44. During these meetings, Mr. Parisien, and Mr. Ross

occasionally spoke in French. (French is their first language.)

However, no evidence shows that Mr. Parisien and Mr. Ross ever

discussed Petitioner Ós disability or age in French.

45. In November 2013, Mr. Parisien contacted Mr. St. Croix

to discuss the different options regarding La NoubaÓs clown act.

Mr. Parisien, as La NoubaÓs Senior Artistic Director, was

responsible for deciding how to adjust La NoubaÓs concept and

select acts that fit his artistic vision for La Nouba.

Mr. Parisien, however, wanted Mr. St. CroixÓs advice.

Mr. St. Croix is the mastermind behind most of CirqueÓs important

shows. Mr. Parisien valued his opinion and artistic vision.

46. Mr. St. Croix recommended that Mr. Parisien bring to

La Nouba the clo wn act of ÐPablo and PabloÑ from Alegria. (Pablo

and Pablo were two clowns whose first names were Pablo.)

Alegria was closing in December 2013. The timing was

advantageous for a move to La Nouba.

47. Until his conversation with Mr. St. Croix, Mr. Par isien

had not considered Pablo and Pablo as an option for La Nouba.

Mr. Parisien was familiar with Pablo and Pablo and their clown

act. He considered them to be great performers and artists.

48. Mr. Parisien testified that Pablo and PabloÓs clown act

w as different from Petitioner and BaltoÓs clown act. Their clown

personalities were also very different. Pablo and Pablo were

high energy and colorful, while Petitioner and Balto were more

deliberate and poetic. Pablo and PabloÓs comedy was more

slapstic k and physical. Described another way, Petitioner and

Balto were like jazz, while Pablo and Pablo were more rock - and -

roll. Pablo and PabloÓs act and personalities met Mr. ParisienÓs

artistic vision for changing the concept of La NoubaÓs clown act.

49. In addition, inserting Pablo and PabloÓs clown act into

La Nouba was the most efficient business decision. Pablo and

Pablo had been working together as a successful partnership for

years. Cirque would avoid any delay that might result from

having to deve lop a completely new clown act for Petitioner and a

new partner. Mr. Parisien commented that it is difficult to

establish a partnership in any act because the relationship

depends on the performersÓ chemistry, energy, and rhythm. It was

more efficacious and safer for Cirque to use Pablo and Pablo

rather than find Petitioner a new partner because Pablo and Pablo

could just transfer their act from Alegria to La Nouba. Pablo

and Pablo would also intr oduce new material to La Nouba.

50. In November 2013, Mr . Parisien decided to bring Pablo

and Pablo to La Nouba to replace Petitioner and Balto.

Mr. Parisien felt that his decision met both CirqueÓs artistic

and business requirements. This decision would also effectuate

Mr. LaliberteÓs directive to change th e concept of the clown act

and bring new elements to La Nouba. Unfortunately, bringing

Pablo and Pablo to replace PetitionerÓs act meant that

Mr. Parisien had to terminate or non - renew PetitionerÓs contract.

Mr. Parisien ultimately decided to terminate PetitionerÓs

contract on the same date Balto retired .

51. Cirque notified Petitioner that it was terminating his

Artist Agreement at a meeting held on January 21, 2014.

Mr. Ross, Mr. Boyd (La NoubaÓs Company Manager), as well as an

interpreter were pres ent with Petitioner during the meeting.

Although it was Mr. ParisienÓs decision to terminate Petitioner,

Mr. Ross held the meeting beca use he was located in Orlando.

52. At the meeting, Mr. Ross informed Petitioner that

Cirque was terminating his contrac t as of April 19, 2014.

April 19, 2014 , was the same day Balto was retiring from the

show. Mr. Ross explained to Petitioner that Cirque had decided

to change the concept of the La Nouba clown act .

53. Mr. Ross provided Petitioner with a termination let ter.

The letter stated that Ðin view of a change in the show concept,Ñ

PetitionerÓs Artist Agreement was being Ðterminated as of

April 19, 2014 , by virtue of section 9.3.Ñ Petitioner was

further advised that Cirque would pay him a severanc e in the

amoun t of $24,218.35.

54. Petitioner was shocked by the CirqueÓs decision to

replace him. Although an interpreter translated the

conversation, Petitioner felt lost at times during the meeting

due to the rapid exchanges between Mr. Ross and Mr. Boyd.

Petition er did not believe that all communications were

adequately interpreted.

55. Mr. Parisien testified that neither PetitionerÓs age

nor disability had any bearing on his decision to terminate

Petitioner. Rather, the decision was based solely on the fact

th at he was compelled to change and update La Nouba. The fact

that Balto was retiring from La Nouba as PetitionerÓs partner

opened the door for La Nouba to replace their clown act.

56. Prior to this meeting, Pablo and Pablo agreed to come

to La Nouba. Pab lo and Pablo are both younger than Petitioner.

In addition, neither of them has a disability. Mr. Parisien

testified convincingly that he did not hire Pablo and Pablo

because they could hear or because they were bo th younger than

Petitioner.

57. During his employment with Cirque, Petitioner never

complained to Cirque management that he felt discriminated

against. Petitioner never complained about the availability of

(or lack of) interpretation services Cirque offered. Petitioner

never requested any acc ommodations beyond what Cirque already

provided. Neither did Petitioner ever file an accom modation

request with CirqueÓs human r esources department in accordance

with the Cirque Rules and Policies Manual. On the contrary,

during his August 2011 performan ce evaluation, Petitioner relayed

that Cirque has Ðbeen providing communication thr ough

interpreters which is good . . . I love the show and w ant to stay

here for a while.Ñ

58. Although Mr. Parisien made the decision to terminate

PetitionerÓs Artist Agree ment, Petitioner alleged that Mr. Ross

was the only person at Cirque that discriminated against him

ba sed on his disability and age.

59. Petitioner continued to perform his clown act with

Balto at La Nouba from January 2014 through April 19, 2014.

Mr. R oss noticed that PetitionerÓs performance actually improved

after he was informed of his termination.

60. On or about April 11, 2014, Cirque advised Petitioner

that, in addition to the severance, Cirque would voluntarily pay

him a transition premium of $1 5,000.00, as well as vacation and

leave pay. In total, Petitioner received $53,627.76 after Cir que

terminated his employment.

61. Following Petitioner and BaltoÓs last show, Cirque held

a celebration party and provided both artists with gifts. Cirque

al so invited all of the interpreters who had assisted Petitioner

throughout the years to watch his last performance and attend the

party.

62. Although Cirque determined to replace Petitioner (and

Balto) at La Nouba, before his last show Cirque discussed wit h

Petitioner possible jobs at other Cirque productions. To be

considered for another Cirque show, Petitioner would have had to

update his casting profile with CirqueÓs casting department.

Petitioner met with CirqueÓs casting department. However, he

neve r provided the casting department with materials to update

his profile in order to be considered for other jobs. Petitioner

informed Cirque that he did not want to go to a different show.

He was not interested in leaving Orlando or touring with another

C irque production. He desired a perman ent position until he

retired.

63. Pablo and Pablo began performing their clown act at

La Nouba immediately after Petitioner and Balto left the show in

April 2014. Pablo and Pablo brought their acts from Alegria to

La Nouba. Pablo and PabloÓs performance included five acts:

1) thieves, 2) motorcycle, 3) airplane, 4) door, and 5) piñata.

These acts were different from the acts Petitioner and Balto

performed. Although, both acts contain a horse bit, the acts

Pablo a nd Pablo brought were newer and different from the act

Petitioner performed at Alegria or La Nouba.

64. Mr. Parisien believed that Pablo and Pablo successfully

changed the concept of the clown act because their act, energy,

and style were completely diff erent from Petitioner and BaltoÓs.

The new clown act also provided Cirque a new marketing angle to

advertise the show and create publicity. Whether coincidental or

not, after Pablo and Pablo arrived at La Nouba, ticket sales

increased.

65. Mr. ParisienÓ s decision to replace Petitioner and

BaltoÓs clown act was not the only change he made to La Nouba.

Other changes included replacing the juggler act with a rola - bola

balancing act, the skipping act with a street dance act, and the

high wire act with an ae rial bamboo act. He changed the costumes

of the bike act and the music for the flying trapeze act. In

addition to Petitioner, Parisien terminated or did not renew

approximately seven other artists. In total, approximately 30 to

40 percent of La Nouba ch anged in response to the Cirque and

Disney mandate.

66. To Mr. ParisienÓs knowledge, none of the other artists

terminated from La Nouba had a disability. Some of the artists

terminate d were younger than Petitioner.

67. Since his employment with Cirque e nded, Petitioner has

not looked for any other artist jobs with either Cirque or

Disney. Petitioner has not worked as a clown since he left

La Nouba.

68. Based on the competent substantial evidence presented

at the final hearing, Petitioner did not demon strate, by a

preponderance of the evidence, that Cirque discriminated against

him based on his age or his disability in violation of the

Florida Civil Rights Act. Rather, CirqueÓs decision to terminate

Petitioner was based on its desire to change and upda te the

concept o f the La Nouba production.

CONCLUSIONS OF LAW

69. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause

pursuant to sections 120.569, 120.57(1), and 760.11(4)(b). See

also Fla. Admin. C ode R. 60Y - 4.016.

70. Petitioner brings this action alleging that Cirque

discriminated against him in violation of the Florida Civil

Rights Act of 1992 (ÐFCRAÑ). Petitioner claims that Cirque

terminated his Artist Agreement based on his age and disabilit y.

The FCRA protects employees from both age and disability

discrimination in the workplace. See § 760.10 - .11, Fla. Stat.

Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

pregnancy, national origin, age, h andicap, or

marital status.

71. A party who receives a no cause determination from the

Commission may request an administrative hearing before DOAH.

Following the hearing, Ð[i]f the administrative law judge finds

that a violation of the [FCRA] has occur red, he or she shall

issue an appropriate recommended order to the commission

prohibiting the practice and recommending affirmative relief

from the effects of the practice, including back pay.Ñ See

§ 760.11(7) , Fla. Stat.

72. Petitioner carries the bur den of proving, by a

preponderance of the evidence, that Cirque committed the unlawful

employment practice. See Fla. Dep't of Transp. v. J.W.C. Co.,

396 So. 2d 778 (Fla. 1st DCA 1981).

73. Regarding age discrimination, the FCRA was derived from

two feder al statutes, Title VII of the Civil Rights Act of 1964

and 1991, 42 U.S.C. § 2000e, et seq. , and the Age Discrimination

in Employment Act (ÐADEAÑ), 29 U.S.C. £ 623. See Brown Distrib.

Co. of W. Palm Beach v. Marcell , 890 So. 2d 1227, 1230 n. 1

(Fla. 4 th D CA 2005). Florida courts apply federal case law

interpreting Title VII and the ADEA to claims arising out of the

FCRA. Id. ; see also City of Hollywood v. Hogan , 986 So. 2d 634,

641 (Fla. 4 th DCA 2008); and Sunbeam TV Corp. v. Mitzel , 83 So.

3d 865, 867 ( Fla. 3 d DCA 2012).

74. To prevail on an ADEA claim, the employee must prove by

a preponderance of the evidence that the employerÓs adverse

employment action would not have occurred Ðbut forÑ the

employeeÓs age. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 16 7,

180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009).

75. Regarding disability discrimination, the FCRA is

construed in conformity with the Americans With Disabilities Act

(ÐADAÑ), 42 U.S.C. § 12112(a). Cordoba v. Dillard's , Inc. , 419

F.3d 1169, 1175 (11th Cir. 2005) (citing Wimberly v. Secs. Tech.

Grp., Inc. , 866 So. 2d 146, 147 (Fla. 4th DCA 2004)). FCRA

claims are analyzed under the same standards as the ADA.

Holly v. Clairson Indus., L.L.C. , 492 F.3d 1247, 1255 (11th Cir.

2007).

76. Employees m ay prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

GlobeGround N. Am . , LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009) .

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent with out resort ing to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561

(11th Cir. 1997). Courts have held that Ðonly the most blatant

remarks Ó , whose intent could be nothing oth er than to

discriminate . . ., will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999) (citations omitted).

77. Petitioner presented no direct evidence of age or

handicap d iscrimination on the part of Cirque. Similarly, the

record in this proceeding contains no statistical evidence of

discrimination related to CirqueÓs de cision to terminate

Petitioner.

78. In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of age or handicap discrimination to prove his case.

For discrimination claims involving circumstantial evidence,

Florida courts follow the three - part, burden - shifting framework

set forth in McDonnel l Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) , and its progeny. See

also Valenzuela , 18 So. 3d at 21 - 22; and St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455, 458 (Fla. 3 d DCA 2011).

79. Under the McDonnell Douglas framewor k, a petitioner

bears the initial burden of establishing, by a preponderance of

the evidence, a prima facie case of discrimination. See

McDonnell Douglas , 411 U.S. at 802 - 04; Burke - Fowler v. Orange

Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrati ng a

prima facie case is not difficult, but rather only requires the

plaintiff Ðto establish facts adequate to permit an inference of

discrimination.Ñ Holifield v. Reno , 115 F. 3d 1555, 1562

(11th Cir. 1997).

80. To establish a prima facie case of age di scrimination,

Petitioner must demonstrate that 1) he i s a member of a protected

class; 2) he was qualified for his position; 3) he was subjected

to an adverse employment action; and 4) his employer treated

employees of a different age more favorably than h e was treated.

O'Connor v. Consol. Coin Caterers Corp. , 517 U.S. 308 (1996);

Hogan , 986 So. 2d at 641. 5/

81. Similarly, to state a prima facie claim for disability

discrimination, Petitioner must first show that 1) he is

disabled; 2) he was a Ðqualified individualÑ at the relevant time

(meaning that he could perform the essential functions of his job

with or without reasonable accommodations); and 3) he was

discriminated against because of his disability. See Lucas v.

W.W. Grainger, Inc. , 257 F .3d 1249, 1255 (11th Cir. 2001) (citing

Reed v. Heil Co. , 206 F.3d 1055, 1061 (11th Cir. 2000)). To

prove unlawful discrimination in a failure to accommodate claim,

Petitioner must show that he was discriminated against as a

result of CirqueÓs failure to provide a reasonable accommodation.

Lucas , 257 F.3d at 1255.

82. If the petitioner establishes a prima facie case (for

either age or disability discrimination), he creates a

presumption of discrimination. At that point, the burden shifts

to the employer to articu late a legitimate, non - discriminatory

reason for taking the adverse employment action. Valenzuela ,

18 So. 3d at 22. The reason for the employerÓs decision should

be clear, reasonably specific, and worthy of credence. DepÓt of

Corr. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).

The employer has the burden of production, not persuasion, to

demonstrate to the finder of fact that the decision was non -

discriminatory. See Wilson v. B/E Aerospace, Inc. , 376 F. 3d

1079, 1087 (11th Cir. 2004). This burden of production is

Ðexceedingly light.Ñ Holifield , 115 F.3d at 1564. The employer

only needs to produce evidence of a reason for its decision. It

is not required to persuade the trier of fact that its decision

was actually motivated by the reason g iven. See St. Mary's Honor

Ctr. v. Hicks , 509 U.S. 502 ( 1993).

83. If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to the

employee to prove that the employerÓs proffered reason was not

the true reason but merely a ÐpretextÑ for discrimination. See

Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.

1997); Valenzuela , 18 So. 3d at 25. In order to satisfy this

final step of the process, the employee must Ðshow[] directly

that a discrimi natory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief.Ñ Chandler , 582

So. 2d at 1186 ( citing Tex. Dep't of Cmty. A ff. v. Burdine , 450

U.S. 248 , 252 - 2 56 ( 1981). The proffered explanation is Ðnot

worthy of beliefÑ if the employee demonstrates Ðsuch weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reason able factfinder could find them unworthy

of credence.Ñ Combs , 106 F.3d at 1538; see also Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143, 120 S.

Ct. 2097, 147 L. Ed. 2d 105 (2000). Petitioner Ðmust prove that

the reasons articulated were fa lse and that the discrimination

was the real reasonÑ for the defendantÓs actions. City of

Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3 d DCA 2011) (citing

St. Mary's Honor Ctr . , 509 U.S. at 515 ("[A] reason cannot be

proved to be 'a pretext for discrimin ation ' unless it is shown

both that the reason was false, and that discrim ination was the

real reason.")) .

84. Despite the shifting burdens of proof, Ðthe ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated again st the plaintiff remains at all

times with the plaintiff.Ñ Burdine , 450 U.S. at 253, 101 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela 18 So. 3d at 22.

85. Based on the competent substantial facts in this

matter, Petitioner established a prima facie case of age

discrimination. Petitioner presented sufficient evidence that:

1) he is a member of a protected class (Petitioner was of a

different age (older) than the clowns Cirque retained); 2) he was

qualified to hold his position at Cirque (Petitioner was

i ndisputably a Ðworld - classÑ clown at the time he was

terminated); 3) he was subjected to an adverse employment action

(Petitioner was terminated by Cirque) ; and 4) Cirque treated

similarly - situated employees differently or less severely (Cirque

retained Pa blo and Pablo after Alegria closed and allowed them to

continue their clown act at La Nouba).

86. However, despite the fact that Petitioner established a

prima facie case of age discrimination, Cirque met its burden of

articulating a legitimate, non - discr iminatory reason for its

decision to discharge Petitioner. CirqueÓs burden to refute

PetitionerÓs prima facie case is light. Cirque presented

credible evidence that its decision to terminate Petitioner was

based on its desire to change and evolve the con cept of the show

in general and the clown act specifically. Cirque management

(Mr. Laliberte and Mr. Parisien) believed that a change in the

showÓs concept was needed to keep La Nouba current, relevant,

increase its quality, and improve its sales. Cirque also

believed that changes would increase the likelihood of repeat

customers and extend its contract with Disney. Mr. Parisien

testified persuasively that his decision to terminate

PetitionerÓs Artist Agreement was based on CirqueÓs need to

change the ac ts in La Nouba.

87. Completing the McDonnell Douglas burden - shifting

analysis, Petitioner did not prove by a preponderance of the

evidence that CirqueÓs stated reasons for firing him were merely

a ÐpretextÑ for unlawful discrimination. The record in this

proceeding does not support a finding or legal conclusion that

RespondentÓs proffered explanation was false or not worthy of

credence. Beginning around 2012, Cirque faced business and

economic pressure to evolve and rejuvenate its 14 - year - old show.

Mr. Parisien received direct instructions to update La NoubaÓs

concept and performances. The fact that PetitionerÓs partner

announced his retirement, effective April 2014, opened the door

for Mr. Parisien to consider replacing PetitionerÓs act with

another cl own duo. Pablo and Pablo offered Mr. Parisien an

efficient and timely option to change the concept of the clown

act while maintaining his artistic vision. Cirque presented

persuasive testimony that Pablo and Pablo were hired based on

their artist ic skill and proven partnership -- a legitimate, non -

discriminatory business reason wholly unrelated to PetitionerÓs

disability or age.

88. Other facts and circumstances regarding CirqueÓs

efforts to reinvigorate La Nouba also refute PetitionerÓs claim

that Cirque fired him based on his age. Cirque, in its effort to

stimulate the showÓs concept, terminated several other artists

who were younger than Petitioner. In addition, Cirque currently

employs performers who are older than Petitioner. Finally, the

fact that PetitionerÓs annual performance evaluations for the

three years prior to his termination reflected CirqueÓs sentiment

that PetitionerÓs act was becoming ÐroutineÑ and contained Ðno

significant evolutionÑ supports CirqueÓs expressed, legitimate

non - discrimi natory reason for ter minating his Artist Agreement.

89. Petitioner identified no evidence to show that CirqueÓs

proffered reason was not its true reason or that age

discrimination was likely the real reason for PetitionerÓs

termination. Accordingly, Peti tionerÓs claim that Cirque

discriminated against him b ased on his age must fail.

90. Turning to PetitionerÓs disability discrimination

claim, the undersigned concludes that Petitioner failed to

establish a prima facie case of discrimination based on his

d isability. The parties do not dispute that Petitioner is

disabled or that he is a Ðqualified individual.Ñ Petitioner,

however, did not set forth sufficient evidence that Cirque

terminated him because of his disability.

91. While establishing a prima fac ie case Ðis not

difficult,Ñ Petitioner is required to produce facts Ðadequate to

permit an inference of discrimination.Ñ The competent

substantial facts presented at the final hearing do not create

even the inference that Cirque terminated Petitioner base d on his

disability. Petitioner did not produce evidence or testimony

establishing his inability to hear played any role, even

remotely, in CirqueÓs decision to terminate his Artist Agreement.

Conversely, Cirque witnesses credibly and persuasively testif ied

that the reason Cirque ended PetitionerÓs long - running act at

La Nouba was based on a business decision to change and evolve

the show.

92. Further, the fact that Cirque was fully aware of

PetitionerÓs disability when it hired him and voluntarily

expe nded its own resources to assist Petitioner during his 15

years with La Nouba , undermines PetitionerÓs claim that Cirque

was motivated to terminate his employment based on his

disability. Cirque invited Petitioner to join La Nouba knowing

he was deaf. Th ereafter, Cirque renewed his Artist Agreement

each year for the next 14 years. In addition, prior to

PetitionerÓs last show, Cirque offered him the opportunity to

apply for othe r productions Cirque produced.

93. The evidence in the record also establishe s that

CirqueÓs decision to terminate Petitioner was precipitated by

PetitionerÓs partner BaltoÓs announcement that he was retiring,

not by some underlying discriminatory animus. BaltoÓs retirement

provided Mr. Parisien the opportunity to change the clown act to

comply with Cirque and Disney Ós mandate to remake the show.

94. Furthermore, the evidence in the record does not

support PetitionerÓs claim that Cirque failed to reasonably

accommodate his disability. An employer's failure to provide

reasonable a ccommodation for a qualified, disabled employee is

discrimination under the ADA. Lucas v. W.W. Grainger, Inc. , 257

F.3d at 1255. The ADA requires an employer to make "reasonable

accommodations" to an otherwise qualified employee with a

disability, Ðunles s doing so would impose [an] undue hardship.Ñ

Id. ; see also Frazier - White v. Gee , 818 F.3d 1249, 1255 (11th

Cir. 2016). An accommodation is ÐreasonableÑ and, therefore,

required under the ADA, only if it enables the employee to

perform the essential func tions of the job.

LaChance v. Duffy's Draft House , 146 F.3d 832, 835 (11th Cir.

1998). The plaintiff bears the burden of identifying an

accommodation and demonstrating that it is reasonable. Lucas ,

257 F.3d at 1255 - 56.

95. A qualified individual is no t, however, entitled to the

accommodation of his choice, but rather only to a ÐreasonableÑ

accommodation. Stewart v. Happy Herman's Cheshire Bridge, Inc. ,

117 F.3d 1278, 1286 (11th Cir. 1997). Further, an employer need

not accommodate an employee in any manner the employee desires

nor reallocate job duties to change the essential functions of

the job. Earl v. Mervyns, Inc. , 207 F.3d 1361, 1367 (11th Cir.

2000). Similarly, an employer is not required to provide an

employee with Ðthe maximum accommodation or every conceivable

accommodation possible.Ñ Stewart , 117 F.3d at 1285.

96. The evidence in the record demonstrates that during

PetitionerÓs employment with La Nouba, Cirque provided him with

accommodations that were both reasonable and effective. Cir que

voluntarily obtained the services of a certified ASL interpreter

to personally assist Petitioner on numerous occasions , including

(1) every weekly artist meeting; (2) every contract renewal

meeting; (3) every annual performance evaluation meeting;

(4) workshops and training sessions; (5) press events; and

(6) communications with fellow La Nouba employees, performers,

and production directors. In addition, Cirque provided

Petitioner with a cell phone/pager to communicate with Ci rque

employees and mana gement.

97. Cirque, by continually providing Petitioner

interpreters and other means of communication for company

functions, enabled Petitioner to perform the essential functions

of his job during his 15 years at La Nouba. On the stage,

Petitioner perfor med at the highest level of his craft. Behind

the curtains, Cirque uniformly praised PetitionerÓs performances

in his a nnual performance evaluations.

98. Further, Petitioner did not show that Cirque ever

denied his request for an interpreter or any other type of

accommodation. Nor, did Petitioner ever complain to Cirque that

his accommodations were inadequate. ÐThe duty to provide a

reasonable accommodation is not triggered unless a specific

demand for an accommodation has been made.Ñ Gaston v.

Belling rath Gardens & Home, Inc. , 167 F.3d 1361, 1363 (11th Cir.

1999). Thus, PetitionerÓs failure to request a reasonable

accommodation is fatal to his prima facie case for fail ure to

reasonably accommodate.

99. At the final hearing, Petitioner detailed only o ne

specific instance of CirqueÓs alleged failure to accommodate.

Petitioner complained that Cirque did not provide him the use of

an interpreter during CirqueÓs 15th anniversary party. This

incident, however, does not establish that Cirque legally failed

to accommodate PetitionerÓs disability. Petitioner did not

request an interpreter for this party. In addition, the party

was a voluntary social gathering and was not part of Petitio nerÓs

essential job functions.

100. Petitioner did not show that Cirque terminated his

employment based on his disability. Cirque complied with the

FCRA by providing Petitioner with reasonable accommodations for

his disability. Consequently, Petitioner did not establish a

claim of disability discrimina tion against Cirque .

1 01. As a final point of analysis, it appears that

PetitionerÓs primary contention with CirqueÓs decision to

terminate him is based on his belief that Cirque had no sensible

reason to replace him in La Nouba. At the time Cirque decided to

part ways with P etitioner, the testimony indisputably describes

Petitioner as an exceptional performer and an integral part of

the show. Therefore, Petitioner challenges whether CirqueÓs

decision to terminate him was appropriate based on the fact that

he was willing to r einvent his clown act.

102. In a proceeding under the FCRA, however, the court is

Ðnot in the business of adjudging whether employment decisions

are prudent or fair. Instead, [the courtÓs] sole concern is

whether unlawful discriminatory animus motivates a challenged

employment decision.Ñ Damon v. Fleming Supermarkets of Fla.,

Inc. , 196 F.3d at 1361 . Not everything that makes an employee

unhappy is an actionable adverse action. Davis v. Town of Lake

Park, Fla. , 245 F.3d 1232, 1238 (11th Cir. 2001). An employer

may fire an employee Ðfor a good reason, a bad reason, a reason

based on erroneous facts, or for no reason at all, as long as its

action is not for a discriminatory reason.Ñ Nix v. WLCY

Radio/Rahall CommcÓns , 738 F.2d 1181, 1187 (11th Cir. 1984).

Moreover, it has been consistently held that in reviewing

employersÓ decisions, the courtÓs role is to prevent unlawful

employment practices and Ðnot to act as a super personnel

department that second - guesses employersÓ business judgments.Ñ

Wilson v. B/ E Aerospace, Inc. , 376 F.3d 1079, 1092 (11th Cir.

2004). An employee cannot succeed by simply quarreling with the

wisdom of the employer's reasons. Chapman v. AI Transp. , 229

F.3d 1012 (l1th Cir. 2000); see also Alexander v. Fulton Cnty.,

Ga . , 207 F .3d 1 303, 1341 (11th Cir. 2000) (Ð[I]t is not the

court's role to second - guess the wisdom of an employer's

decisions as long as the decisions are not racially motivated.Ñ) .

103 . In sum, while Petitioner was undisputedly a master at

the craft of clowning on the date he was terminated, the

competent substantial evidence in the record does not support

PetitionerÓs claim that Cirque fired him from La Nouba based on

his age or disability. CirqueÓs desire to change and evolve

La NoubaÓs performances provided a lega lly sufficient basis for

Cirque to discharge Petitioner as long , as its action was not for

a discriminatory reason - Î which Petitioner did not establish. No

credible evidence shows that CirqueÓs stated reason for

PetitionerÓs termination was a ÐpretextÑ for age or handic ap

discrimination. Therefore, b ecause Petitioner failed to put

forth sufficient evidence that Cirque had some discriminatory

reason for its decision to terminate him, h is petition must be

dismissed.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Cirque du

Soleil, did not commit an unlawful employment practice as to

Petitioner, Sergey P. Shashelev , and d ismiss PetitionerÓs

Petition for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 11 th day of Octo ber , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division o f 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 11 th day of October , 2 016 .

ENDNOTE S

1/ All statutory references are to the 2016 Florida Statutes,

unless otherwise noted.

2/ In the documentary evidence, PetitionerÓs name is spelled in

several variations including ÐSergey P. ShashelevÑ and ÐSerguei

Chachelev.Ñ

3/ Petit ionerÓs Amended Petition for Relief did not allege

additional facts, but did assert an additional legal theory of

relief based on CirqueÓs alleged failure to accommodate

PetitionerÓs disability. Accordingly, the undersigned allowed

Petitioner to present a n additional claim alleging that Cirque

failed to accommodate his disability.

4/ At the final hearing, the interpreters were duly sworn to

relay the truth of what they understood pursuant to

section s 90.606 and 90.6063, Fla. Stat .

5/ While the federal ADEA (on which the FCRA is modeled)

specifically protects employees aged 40 and older, the FCRA does

not set a minimum age for a classification of persons protected

thereunder. The Commission has determined that the age Ð40Ñ has

no significance in interp reting the FCRA. Accordingly, the

fourth element for establishing a prima facie case of age

discrimination under the FCRA is a showing that individuals

similarly - situated of a ÐdifferentÑ age, as opposed to a

ÐyoungerÑ age, were treated more favorably. S ee Downs v. Shear

Express, Inc. , Case No. 05 - 2061 (Fla. DOAH March 14, 2006),

mo dified, Order No. 06 - 036 ( Fla. FCHR M ay 24, 2006); Boles v.

Santa Rosa C nty . SheriffÓs Off . , Case No. 07 - 3263 (Fla. DOAH

December 5, 2007), modified, Order No. 08 - 013 ( Fla. FCH R Feb. 8,

2008); Ellis v. Am. Aluminum , Case No. 14 - 5355, modified, Order

No. 15 - 059 ( Fla. FCHR Sep. 17, 2015). Florida case law is silent

on the matter.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplana de Way , Room 110

Tallahassee, Florida 32399

(eServed)

Stephanie L. Adler, Esquire

Jackson Lewis, LLP

Suite 1285

390 North Orange Avenue

Orlando, Florida 32801

(eServed)

Nicole Alexandra Sbert, Esquire

Jackson Lewis LLP

Suite 1285

390 North Orange Avenu e

Orlando, Florida 32802

(eServed)

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

(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.