02-003995 Kimberly N. Williams vs. Sailorman, Inc., D/B/A Popeye`s Chicken And Biscuits Status: Closed Recommended Order on Friday, August 15, 2003.

Summary: Florida Civil Rights Act protects "all individuals" from age discrimination, including minors, but Petitioner failed to prove her firing was unlawful under the Act; Respondent proved child labor laws precluded Petitioner from performing job duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY N. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3995

)

SAILORMAN, INC., d/b/a POPEYE'S )

CHICKEN AND BISCUITS, )

)

Respondent. )

)

RECO MMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 5, 2003, in Sanford, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda J. Williams

1907 South Lake Avenue

Sanford, Florida 32771

For Respondent: Thomas H. Kiggans, Esquire

Phelps Dunbar, LLP

Post Office Box 4412

Baton Rouge, Louisiana 70821 - 4412

STATEMENT OF THE ISSUES

The issues ar e whether Respondent committed an unlawful

employment practice in violation of the Florida Civil Rights Act

of 1992 when it terminated Petitioner's employment in

December 2001, and if so, what relief is appropriate, if any.

PRELIMINARY STATEMENT

By letter and notice dated July 15, 2002, the Executive

Director of the Florida Commission on Human Relations

(Commission) informed the parties that there is reasonable cause

to believe that an unlawful employment practice occurred in

connection with Respondent's t ermination of Petitioner's

employment in December 2001. On August 13, 2002, Petitioner

timely filed a Petition for Relief with the Commission pursuant

to Section 760.11(4)(b), Florida Statutes.

On October 15, 2002, the Commission referred the matter to

t he Division of Administrative Hearings (Division) for the

assignment of an Administrative Law Judge to conduct a hearing

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

The hearing was originally scheduled for December 10, 2002, but

it was s ubsequently continued at Petitioner's request to

accommodate her final examination schedule at college. The

hearing was rescheduled for March 21, 2003.

On March 10, 2003, this case was placed in abeyance at

Respondent's request so that it could pursue a d eclaratory

judgment action against the Commission regarding the application

of the Florida Civil Rights Act of 1992 to persons under the age

of 18. A declaratory judgment action was subsequently filed by

Respondent in the Circuit Court for the Second Judi cial Circuit

where it was assigned to Judge Kevin Davey and designated

Case No. 03 - CA - 523. By Order dated May 19, 2003, Judge Davey

placed the declaratory judgment action in abeyance pending

resolution of this case. Thereafter, the final hearing in this

case was scheduled for June 5, 2003.

Petitioner was represented at the hearing by her mother,

Linda Williams, who is not an attorney. Ms. Williams was

authorized at the outset of the hearing to appear as the

qualified representative for Petitioner. See Rules 28 - 106.106

and 28 - 106.107, Florida Administrative Code.

Respondent was represented at the hearing by Thomas

Kiggans, who is not a Florida attorney. Mr. Kiggans was

authorized to appear as the qualified representative for

Respondent by Order dated Ma rch 12, 2003.

At the hearing, Petitioner testified in her own behalf and

introduced Exhibits numbered P1 through P3, all of which were

received into evidence. Respondent presented the testimony of

Abbas Momenzadeh, Respondent's Vice President of Operatio ns;

Jean Chang, Respondent's Human Resources Director; and

Ms. Williams. Respondent's Exhibits numbered R1 through R13

were received into evidence.

The case style was changed by Order dated June 6, 2003, to

designate Kimberly Williams as the Petitioner in her own

capacity since she is no longer a minor. The original case

style designated the Petitioner as "Linda J. Williams o/b/o [on

behalf of] Kimberly N. Williams."

The one - volume Transcript of the hearing was filed with the

Division on June 30, 2003 . Respondent requested and the parties

were given 20 days from the date that the Transcript was filed

with the Division to file their proposed recommended orders

(PROs). Petitioner filed a letter summarizing her position on

July 11, 2003, and Respondent filed its PRO on July 28, 2003. 1

The parties' post - hearing submittals were given due

consideration by the undersigned in preparing this Recommended

Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following find ings are made:

1. Petitioner is an African - American female. She was born

in November 1984, and she is currently 18 years old.

2. Respondent is the largest franchisee of Popeye's

Chicken and Biscuits (Popeye's) restaurants in the country.

Respondent op erates over 160 Popeye's restaurants in seven

states, including Florida.

3. Popeye's is a fast - food restaurant which specializes in

fried chicken and biscuits.

4. One of the Popeye's restaurants operated by Respondent

is located in Sanford, Florida. R espondent acquired the

franchise for the Sanford restaurant in mid - September 2000.

5. In December 2000, Petitioner was hired by Respondent as

a "crew member" at Popeye's in Sanford. Petitioner was 16 years

old when she was hired.

6. The general duties o f a crew member include cleaning

the interior and exterior of the store, battering and seasoning

chicken, frying the chicken, working the cash registers, washing

dishes, and other duties assigned by the shift manager.

7. Crew members operate power - driven machinery, such as

bakery - type mixers (for making biscuits) and meat marinators

(for seasoning the chicken), and they also use slicing machines

for preparing coleslaw and cutting chicken.

8. Crew members work as a "team" and, because there are

only four t o five crew members per shift, each crew member is

expected to be able to (and is often required to) perform each

of the duties listed above.

9. During the course of her employment, Petitioner

typically worked as cashier at the drive - thru window or the

co unter in the lobby, although she did perform other duties.

Petitioner acknowledged at the hearing that she could not

perform some of the job duties, such as cooking the chicken,

because of her age.

10. Petitioner was often required to walk past the fryers

where the chicken was cooked while performing her other duties,

and she was thereby exposed to the hot grease which had a

tendency to splatter when the chicken was frying.

11. On occasion, Petitioner had to go into the walk - in

freezer in the kitchen area of the restaurant. She also

carried the hot water heaters used to make tea, and she used the

bakery - type mixers and meat slicers.

12. There are dangers inherent in the duties performed by

crew members. For example, the grease in the fryers is in

excess of 300 degrees, and it often splatters onto the floor

making the floor slippery. The floor of the walk - in freezer can

also be slippery due to ice.

13. Because of the team approach utilized by Respondent

and the nature of Popeye's business, it would be dif ficult to

limit the duties performed by Petitioner (or other minors) to

those not involving hazards such as exposure to hot grease or

use of dangerous machinery.

14. Petitioner's starting salary was $5.75 per hour. Her

salary remained the same during the entire term of her

employment at Popeye's.

15. Crew members work either the "day shift" or the "night

shift." The day shift begins at 8:00 a.m. and ends at

4:00 p.m.; the night shift begins between 3:00 p.m. and

4:00 p.m. and ends after the restaurant cl oses, which is often

after 11:00 p.m.

16. Petitioner primarily worked the night shift since she

was still in high school during the time that she was working

for Popeye's, and she worked later than 11:00 p.m. on occasion.

17. Because of the small number of crew members working on

each shift, it was highly impractical for minor employees to be

provided the 30 - minute breaks every four hours as required by

the Child Labor Law. This was a particular problem on the night

shift since a minor employee such as Pet itioner, who began her

shift at 3:00 p.m. or 4:00 p.m., would be taking a break between

7:00 p.m. and 8:00 p.m., which was one of the busiest times for

the restaurant.

18. Petitioner only worked part - time at Popeye’s. Her

employment earning records for Ju ne 2001 through December 2001

show that even during the summer months she worked no more than

46 hours during any two - week pay period. Those records also

show that Petitioner typically worked significantly fewer hours

during the school year.

19. Petitione r's employment earning records show that she

worked an average of 29.25 hours per pay period or 14.625 hours

per week. That average is a fair measure of the hours typically

worked by Petitioner because the median is 29.24 hours per pay

period and, even if the periods with the highest and lowest

number of hours are not considered, the average would be 30.02

hours per pay period. 2

20. In August 2001, Petitioner began to hear "rumors" from

her co - workers and shift managers that she "had to be gone"

soon. She understood those rumors to mean that she would be

"laid off," and she further understood that it was because she

was a minor.

21. The "rumors" that Petitioner heard were based upon a

new policy adopted by Respondent on August 6, 2001 ("the

Policy").

22. The Policy was adopted by Respondent as a direct

result of a series of administrative fines it received from the

Florida Department of Labor and Employment Security for

violations of the Child Labor Law. The violations included

minors working more hours p er day and/or per week than

permitted, minors working in and around hazardous occupations

( e.g. , cooking with hot grease), and not providing minor

employees with the required 30 - minute breaks.

23. The Policy was distributed to Respondent's district

manager s and area managers. Those managers were responsible for

distributing the Policy to the store managers who, in turn, were

responsible for implementing the policy and conveying the

information in the Policy to the "front line" employees, such as

Petitioner .

24. Petitioner did not receive a copy of the Policy until

after she had been fired. However, Petitioner was informed of

the essential substance of the Policy through the "rumors"

described above.

25. The Policy states that "[i]t has long been

[Responde nt's] policy not to hire minors" who are not exempt

under the Child Labor Law. The Policy required all minor

employees to be "phased out" by December 1, 2001. The purpose

of the four - month phase - out period was to enable the employees

to find other employ ment.

26. The Policy did not apply to minors who could provide

documentation to Respondent showing that they were legally

married, had their disability of non - age removed by a court of

competent jurisdiction, were serving or had served in the Armed

Forces, and/or have graduated from high school or earned a high

school equivalency diploma. These criteria were taken directly

from Section 450.012(3), Florida Statutes, which identifies

those minors who are not subject to the state's Child Labor Law.

27. Petiti oner did not fall within any of these

categories.

28. Consistent with the phase - out schedule in the Policy,

Petitioner's employment with Respondent was terminated effective

December 1, 2001, although her last work day was actually in

late November. Petit ioner was 17 years old at the time.

29. Petitioner did not look for other employment after she

was fired by Respondent.

30. Petitioner attended some type of summer program at

Bethune - Cookman College (BCC) in Daytona Beach, Florida, between

June 16 and July 27, 2002. Petitioner received an $800.00

stipend from BCC related to that program.

31. Petitioner enrolled in Barry University (Barry) in

Miami Shores, Florida, in August 2002. Had she still been

employed at Popeye's at the time, she would have quit sin ce she

had always planned to attend college after high school and not

to have a career working at Popeye's.

32. Had Petitioner continued to work at Popeye's from

December 1, 2001, until June 16, 2002, when she started the

summer program at BCC in Daytona B each, she would have earned

$2,354.63. 3

33. Had Petitioner been able to continue working at

Popeye's while she was attending the BCC summer program and all

of the way through mid - August 2002 when she left for college at

Barry, she would have earned an addi tional $756.84, 4 for a total

of $3,111.47.

34. The additional $756.84 that Petitioner would have

earned by working at Popeye's from June 16, 2002, through August

2002, is less than the $800.00 stipend that she received from

BCC.

35. Petitioner obtained a p art - time job through a federal

work study program once she enrolled at Barry. She worked in

that program from August 2002 to May 2003 when the school year

ended. She was paid $5.50 per hour, and she earned

approximately $2,250.00 in that program.

36. In May 2003, Petitioner returned to Sanford for

"summer vacation." Upon her return, Petitioner began looking

for a summer job in Sanford, but as of the date of the hearing,

she was not employed. The record does not reflect what type of

job that Petitioner w as looking for or whether she actually

applied for any jobs.

37. Petitioner will continue in the work study program

when she returns to Barry in August 2003.

38. But for the Policy, Petitioner would have not been

terminated in December 2001. She was a goo d, hard - working

employee and she had no disciplinary problems.

39. Respondent is willing to rehire Petitioner now that

she is 18.

40. Petitioner is not interested in working for

Respondent. She testified at the hearing that she does not want

to go back to work for "a company that has done me like that,"

which is a reference to Respondent firing her based solely upon

her age.

41. There is no evidence that Petitioner was mistreated in

any way or subjected to a hostile work environment while she was

working at Popeye's, nor is there any evidence that such an

environment currently exists or ever existed at Popeye's.

CONCLUSIONS OF LAW

A. Jurisdiction

42. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

760.11(4)(b) and (6), Florida Statutes. (All references to

Sections and Chapters are to the 2002 compilation of the Florida

Statutes. All references to Rules are to the current version of

the Flori da Administrative Code.)

B. Unlawful Employment Practice

Generally

43. Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to:

[D]ischarge or to fail or refuse to hire any

individual, or otherwise to discriminate

agai nst any individual with respect to

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age , [5] handicap, or marital

status.

(Emphasis supplied).

44. Section 760.10(8) prov ides that it is not an unlawful

employment practice for an employer to:

(a) Take or fail to take any action on the

basis of . . . age . . . in those certain

instances in which . . . age . . . is a bona

fide occupational qualification reasonably

necessary for the performance of the

particular employment to which such action

or inaction is related.

* * *

(c) Take or fail to take any action on the

basis of age, pursuant to law or regulation

governing any employment or training program

designed to ben efit persons of a particular

age group. . . .

45. These provisions are part of the Florida Civil Rights

Act of 1992 (Act), whose general purposes are to:

[S]ecure for all individuals within the

state freedom from discrimination because of

race, color, religion, sex, national origin,

age, handicap, or marital status and thereby

to protect their interest in personal

dignity, to make available to the state

their full productive capacities, to secure

the state against domestic strife and

unrest, to preserve the public safety,

health, and general welfare, and to promote

the interests, rights, and privileges of

individuals within the state.

Section 760.01(2) (emphasis supplied).

46. An unlawful employment practice claim under the Act

may be established by dir ect or circumstantial evidence. Where

the claim is based upon circumstantial evidence, it is analyzed

under the framework established in McDonnell Douglas Corporation

v. Green , 411 U.S. 792 (1973), as refined in Texas Department of

Community Affairs v. Bu rdine , 450 U.S. 248 (1981), and St.

Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). Where the

claim is based upon direct evidence, it is unnecessary to resort

to the McDonnell Douglas framework. See Bass v. Board of County

Commissioners , 256 F.3d 1095 , 1104 - 05 (11th Cir. 2001) (citing

cases).

47. This case involves direct evidence of discrimination.

Indeed, it is undisputed that the Policy adopted by Respondent

expressly discriminated against persons under the age of 18

(including Petitioner) by term inating their employment,

effective December 1, 2001, notwithstanding their work history,

abilities, or other attributes.

48. It is also undisputed that the Policy was the sole

basis of Respondent's decision to terminate Petitioner's

employment. Stated another way, but for the discriminatory

Policy, Petitioner's employment would not have been terminated.

Thus, Respondent failed to meet its burden of persuasion to

refute the direct evidence of discrimination. See Bass , 256

F.3d. at 1104.

49. Neverthele ss, Respondent argues that it did not

violate the Act when it terminated Petitioner’s employment

because, as a matter of law, the Act does not protect minors

against age discrimination. Alternatively, Respondent argues

that its decision to fire Petitioner based solely upon her age

was not a violation of the Act because Petitioner was prohibited

by the state and federal child labor laws from performing some

of the job duties of a crew member and, as a result, age was

effectively a bona fide occupational qua lification (BFOQ) for

the position. Each argument will be discussed in turn.

Scope of the Act's Prohibition

Against Age Discrimination

50. The Act was patterned after Title VII of the Civil

Rights Act of 1964. As a result, the Act is to be construed in

a manner consistent with Title VII. See e.g. , Florida State

University v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Brand v. Florida Power Corporation , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

51. Title VII does not prohibit discrimination based upon

age. See 42 U.S.C. Section 2000e - 2. There is a separate

federal law which expressly addresses age discrimination, the

Age Discrimination in Employment A ct (ADEA ). See 29 U.S.C.

Section 621, et seq.

52. Section 623(a)(1) of the ADEA provides that it is

unlawful for an employer to:

[F]ail or refuse to hire or to discharge any

individual or otherwise discriminate against

any individual with respect to his

c ompensation, terms, conditions, or

privileges of employment, because of such

individual's age[.]

53. This provision, like Section 760.10(1)(a), does not

place any qualifications on the prohibition against age

discrimination. However, Section 631(a) of th e ADEA expressly

provides that "[t]he prohibitions in this chapter shall be

limited to individuals who are at least 40 years of age."

54. The Act does not contain any language similar to that

in Section 631(a) of the ADEA. As a result, and notwithstanding

the passing comment in Sondel , supra , that "[f] ederal case law

interpreting Title VII and the ADEA is applicable to cases

arising under the Florida Act," 6 t he federal age discrimination

cases relied upon by Respondent are distinguishable.

55. Indeed, mos t of those cases rely on or refer to

Section 621(b) of the ADEA in which congress declared that a

purpose of the ADEA was "to promote employment of older persons

based on their ability rather than age " (emphasis supplied).

See , e.g. , Hamilton v. Caterpill ar, Inc. , 966 F.2d 1226, 1227 - 28

(7th Cir. 1992) (holding that "reverse age discrimination" claims

are not cognizable under the ADEA). There are no similar

statements of legislative intent in the Act. Compare

Section 112.044(1) (providing legislative int ent for the age

discrimination prohibitions applicable to governmental employers,

and specifically referring to "older workers" as the class

benefited by that statute); Morrow v. Duval County School Board ,

514 So. 2d 1086, 1087 - 88 (Fla. 1987) (stating that the policy

underlying Section 112.044 is similar to the policy underlying

the ADEA). To the contrary, Section 760.01(2) broadly states

that the purpose of the Act is to protect "all individuals" from

discrimination.

5 6. It is significant that the Act do es not define

"individual" to exclude minors. Nor does the definition of

"person" in Section 760.02(6), which includes "individual,"

exclude minors. And cf. Section 1.01(3) (defining "person" to

include "children"). Accordingly, it is concluded that the use

of the word "individual" in Sections 760.01(2) and 760.10

includes minors.

57. That conclusion is supported by the principles that

the Act is to be "construed according to the fair import of its

terms," and that it is to be liberally construed to fur ther its

purpose. See Section 760.01(3); Woodham v. Blue Cross & Blue

Shield , 829 So. 2d 891, 894 (Fla. 2002) (stating that the Act

"is remedial and requires a liberal construction to preserve and

promote access to the remedy intended by the Legislature") ;

Joshua v. City of Gainesville , 768 So. 2d 432, 435 (Fla. 2000)

(same); Donato v. American Telephone and Telegraph Company , 767

So. 2d 1146, 1148 (Fla. 2000) (noting that the Act provides

" greater protection to Florida citizens than is provided under

the federal Civil Rights Act," but rejecting the Commission's

broad construction of the phrase "marital status" in the Act).

58. The parties have not cited, nor has the undersigned

located any Florida cases directly addressing the significance

(or not) of the omission of an age limit on the scope of the Act.

Courts in several other states have addressed similar omissions

in their anti - discrimination laws, and those courts have held

that those laws prohibit age discrimination against a broader

class of persons than the ADEA. See Zanni v. Medaphis Physician

Services Corporation , 612 N.W. 2d 845 (Mich. App. 2000), appeal

denied , 618 N.W. 2d 596 (Mich. 2000); Bergen Commercial Bank v.

Sisler , 723 A.2d 944 (N.J. 1999); Ogden v. Bureau of Labor , 699

P.2d 189 (Or. 19 85). See also Graffam v. Scott Paper Company ,

870 F.Supp. 389, 405 n.27 (D. Me. 1994) (noting that the Maine

Human Rights Act does not limit age discrimination claims to a

certain range of ages); Chad A. Stewart, Young, Talented, and

Fired: The New Jerse y Law Against Discrimination and the Right

Decision in Bergen Commercial Bank v. Sisler , 84 Minn. Law Review

1689 (June 2000) (analyzing the decision in Bergen , as well as

cases from other states involving "reverse age discrimination

claims" under state an ti - discrimination laws). Those decisions

are persuasive in construing the proper scope of the Act. Cf.

Donato , 767 So. 2d at 1149 - 50, 1151 - 52 (reviewing anti -

discrimination statutes and cases from other states in

determining the scope of the prohibition against discrimination

based upon "marital status").

59. In this regard, the following portions of the New

Jersey Supreme Court's analysis in Bergen Commercial Bank are

particularly applicable in this case:

We hold that the . . . prohibition [in the

New Jersey Law Against Discrimination (LAD)]

against age discrimination is broad enough

to accommodate [the 25 - year - old plaintiff's]

claim of age discrimination based on youth.

At the outset we agree with the Appellate

Division that significant language

diff erences between the LAD and ADEA

preclude wholesale reliance on federal law

in deciding whether younger workers are

within the ambit of the act's protection.

The result in cases applying the ADEA is

necessarily driven by the fact that the ADEA

by its term s limits the protected class to

workers over forty. Because the LAD

contains no such express limitation, our

decision rests on our independent assessment

of the language and purpose of [the

LAD]. . . .

Our examination of [the LAD] reveals no

evide nce of a legislative intent to exclude

younger workers from the LAD's anti - age -

discrimination protection. [The LAD]

protect[s] "[a]ll persons" from employment

discrimination on the basis of age. Neither

section, on its face, specifies a qualifying

age a t which the act's protections

vest. . . .

In deciding that the LAD's protections

extend to young workers, we are constrained

by the principle that the state anti -

discrimination laws, as social remedial

legislation, are deserving of a liberal

const ruction. In that connection, "this

Court has been scrupulous in its insistence

that the Law Against Discrimination be

applied to the full extent of its facial

coverage." We also find that a broad

construction of the statute is entirely

consistent with th e underlying purpose of

anti - discrimination laws "to discourage the

use of categories in employment decisions

which ignore the individual characteristics

of particular applicants." Thus, we find it

entirely consistent with the underlying

purposes of the L AD to infer that the

Legislature would have intended to protect,

for example, a twenty - three - year - old

schoolteacher who, despite her outstanding

performance in the classroom, was discharged

by a local school board because they believed

she was too young to teach. Moreover, if we

have mistakenly construed the legislative

intent, the Legislature remains free to amend

the LAD to specify a minimum qualifying age

for the law's protection.

Bergen Commercial Bank , 723 A.2d at 957 - 58 (Citations omitted).

Accord Zanni , 612 N.W. 2d at 847 ("[W]e conclude that the plain

language of the [Michigan Civil Rights Act (CRA)] provides no

basis to limit the protections of the [CRA] to older

workers. . . . Unlike the CRA, the ADEA limits the prohibitions

against age discrim ination 'to individuals who are at least 40

years of age. We decline to read a similar restriction into the

CRA when the Legislature apparently chose not to do so.")

(citations omitted).

60. It is interesting to note that the New Jersey LAD

included a pro vision stating that "nothing in this act . . .

shall be construed . . . to require the employment of any person

under the age of 18." Bergen Commercial Bank , 723 A.2d at 957

(quoting N.J. Stat. Ann. 10:5 - 2.1). That language was apparently

included to add ress concerns about the LAD's potential

interference with child labor laws. See Id. at 953 (quoting a

study of the New Jersey Commission on Aging that was part of the

legislative history for the LAD). There is no similar provision

in the Act, and Respond ent has not cited any legislative history

for the Act which might suggest that the omission of an age

limitation in the Act was somehow inadvertent or that the Act was

intended only to prohibit age discrimination against older

persons (as seems to be the c ase with Section 112.044) or persons

over the age of 18 (as is the case with the New Jersey LAD).

Absent such, it is concluded that the Act means what it says and

that it protects "all individuals," including minors, from age

discrimination.

Bona Fide Oc cupational Qualification

61. Section 760.11(8)(a) provides that it is not unlawful

to take employment action based upon age where age is a BFOQ

"reasonably necessary for the performance of the particular

employment."

62. This defense is extremely narrow. See O'Loughlin v.

Pinchback , 579 So. 2d 788, 792 (Fla. 1st DCA 1991) (citing

Dothard v. Rawlinson , 433 U.S. 321, 332 - 37 (1977)). Accord

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, UAW v. Johnson

Contr ols, Inc. , 499 U.S. 187, 200 - 04 (1991).

63. The burden of proving a BFOQ defense is on the

Respondent. See Whitehead v. Miracle Hill Nursing and

Convalescent Home, Inc. , 1994 WL 1028127, at *10 (Order of the

Commission issued April 17, 1995).

64. Specif ically, Respondent must prove that:

(1) The qualification is 'reasonably

necessary' to the essence of the business

operation; and (2a) There was reasonable

cause to believe, that is, a factual basis

for believing all, or substantially all, of

the excluded class would be unable to

perform safely and efficiently the duties of

the job involved; or (2b) It is impossible

or highly impractical to deal with the

members of the group on an individualized

basis.

Id. (quoting Kelley v. Bechtel Power Corporation , 633 F.Supp

927, 937 (S.D. Fla. 1986). Accord Johnson Controls , supra ;

Dothard , supra .

65. Respondent's BFOQ defense is that the federal and

state child labor laws prohibit minors from performing all of

the duties required of crew members. Specifically, Res pondent

argues that those laws prohibit minors from working around hot

grease, cooking chicken, operating power - driven machines, such

as meat slicers and bakery - type machines, all of which are part

of the "essence" of a crew member's duties and Popeye's

bu siness. Furthermore, Respondent argues that the nature of its

business makes it highly impractical for it to accommodate the

work - period constraints imposed by the federal and state child

labor laws, namely the prohibition on minors working after

11:00 p. m. and the requirement that minors be given a 30 - minute

break every four hours.

66. Florida's Child Labor Law is codified in Part I of

Chapter 450, and is patterned after the Fair Labor Standards Act

(FLSA), which is codified in 29 U.S.C. Section 201, et seq.

67. Section 450.061(3) provides that:

No minor under 18 years of age . . . shall

be employed or permitted or suffered to work

in any place of employment or at any

occupation hazardous or injurious to the

life, health, safety, or welfare of such

minor , as such places of employment may be

determined and declared by the

department . . . .

68. Rule 61L - 2.005 lists the occupations and places of

employment that have been determined to be hazardous to minors

in accordance with Section 450.061(3). That rule incorporates

by reference the federal regulations which implement the FLSA.

It prohibits certain occupations for all minors, see Rule 61L -

2.005(2)(a), and prohibits other occupations for minors under

the age of 16. See Rule 61L - 2.005(2)(b).

69. The regulations prohibiting certain occupations for

minors under 16 are not relevant in this proceeding because

Petitioner was 16 years old when she was hired and 17 years old

when she was fired, and because Respondent's Policy applies to

minors under the age of 18 and not just minors under the age

of 16. Thus, Respondent's reliance on the federal regulations,

which authorize minors between the ages of 14 and 16 to perform

"[k]itchen work and other work involved in preparing and selling

food and beverages, in cluding the operation of machines and

devices used in the performance of such work," but prohibit them

from being involved in "cooking" and "occupations which involve

operating . . . power - driven food slicers and grinders, food

choppers, and cutters and ba kery - type machines," is misplaced.

See 29 C.F.R. Section 530.34(a)(7) and (b)(5) - (6). Accord Rule

61L - 2.005(2)(b)9. - 10. For the same reason, Respondent's

reliance on Section 450.061(1)(o), which prohibits minors

younger than 15 from "working with meat a nd vegetable slicing

machines," is misplaced.

70. The federal and state child labor laws both establish

a minimum age of 18 for occupations involving power - driven

bakery - type machines. See 29 C.F.R. Sections 570.62 and

570.120; Section 450.061(2)(i); Rul e 61L - 2.005(2)(a)10.

71. The federal and state child labor laws both limit the

number of hours that minors can work per day and per week, see

29 C.F.R. Section 570.35; Section 450.081. The State law also

requires that:

Minors 17 years of age or younger sh all not

be employed, permitted, or suffered to work

for more than 4 hours continuously without

an interval of at least 30 minutes for a

meal period; and for the purposes of this

law, no period of less than 30 minutes shall

be deemed to interrupt a continuo us period

of work.

Section 450.081(4).

72. The evidence establishes that operating the bakery -

type machines used to make biscuits is a part of the job duties

of a crew member, that crew members are often required to work

after 11:00 p.m., and that it is highly impractical to give crew

members 30 - minute breaks every four hours because of the small

number of crew members on each shift. The evidence further

establishes that these duties are part of the "essence" of the

duties of crew members and of Responde nt's fast - food business.

Because the child labor laws prohibit minors from operating

bakery machines, working after 11:00 p.m., and working more than

four hours without a 30 - minute break, it is concluded that

minors are not able to perform all of the duti es required of

crew members and, therefore, Respondent met its burden to prove

that being 18 years of age is a BFOQ for crew members.

73. Because Respondent proved its BFOQ defense, it did not

commit an unlawful employment practice when it terminated

Petit ioner's employment based upon her age. See Section

760.11(8)(a). For the same reasons, it is also concluded that

Respondent's decision to fire Petitioner is not an unlawful

employment practice based on Section 760.11(8)(c), which permits

employers to tak e employment action based upon laws which, like

the child labor laws, are designed to benefit persons of a

particular age group.

C. Relief

74. In the event that the Commission (and/or an appellate

court) rejects the foregoing conclusion, it becomes necess ary to

determine what relief, if any, Petitioner is entitled to.

Accordingly, in an abundance of caution, that issue is addressed

below.

75. It is well - settled that "the basic purpose of Title

VII relief is to 'make whole' victims of unlawful employment

discrimination." Darnell v. City of Jasper , 730 F.2d 653, 655

(11th Cir. 1984).

76. The purpose of relief under the Act is the same,

although the type of relief available to Petitioner in this

proceeding is prescribed by Section 760.11(6), which provides in

relevant part:

. . . If the administrative law judge, after

the hearing, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 12 0 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. . . .

77. A successful plaintiff/Petitioner in an employment

discrimination action is "presumptively entitled to back pay."

See Weaver v. Ca sa Gallardo, Inc. , 922 F.2d 1515, 1526 (11th

Cir. 1991) (superceded by statute on other grounds). Similarly,

"reinstatement is a basic element of the appropriate remedy in

wrongful employee discharge cases and, except in extraordinary

cases, is required." Darnell , 730 F.2d at 655. Accord

O'Loughlin , 579 So. 2d at 795 (stating that "a prevailing

plaintiff in a wrongful discharge case is entitled to

reinstatement absent unusual circumstances").

78. Front pay may also be awarded. See Whitehead , 1994 WL

102 8127, at **11, 18 - 19; Nord v. U.S. Steel Corporation , 758

F.2d 1462, 1473 (11th Cir. 1985).

79. Compensatory and punitive damages are not available in

this administrative proceeding. Those remedies are only

available in a civil action brought pursuant to Section

760.11(4)(a). See Section 760.11(5) (authorizing the court to

award "compensatory damages, including, but not limited to,

damages for mental anguish, loss of dignity, and any other

intangible injuries, and punitive damages" in addition to back

pay and affirmative relief).

80. At the hearing, Petitioner indicated that all she was

seeking in this proceeding was an award of back pay between

December 1, 2001 (when she was terminated), and August 2002

(when she went away to college at Barry). To the ex tent that

Petitioner might have sought to recover back pay for a longer

period, see Munoz v. Oceanside Resorts, Inc. , 223 F.3d 1340,

1347 (11th Cir. 2000) ("In an age discrimination suit, a

successful plaintiff receives back pay from the date of his or

her termination to the date of trial."), she has waived such a

claim. In any event, since Petitioner's gross earnings from the

work study program at Barry were virtually the same as her

earnings at Popeye's, back pay would have been cut off in August

2002 at the latest. See Kolb v. Goldring, Inc. , 694 F.2d 869,

874 (4th Cir. 1982) (stating that damages from termination were

complete and settled when plaintiff started earning more at his

new job than he earned at the job from which he was terminated).

81. In response, Respondent argues that Petitioner is not

entitled to any back pay since she failed to look for other

employment after she was fired. Alternatively, Respondent

argues that even if Petitioner is entitled to back pay, it is

only through June 16, 20 02, when she started attending the

summer program at BCC.

82. It is well - settled that a plaintiff in an employment

discrimination case is required to mitigate her damages by

attempting to obtain other suitable employment, and her failure

to do so results in forfeiture of the right to back pay. See ,

e.g. , Ford Motor Company v. E.E.O.C. , 458 U.S. 219, 231 - 32

(1982); Weaver , 922 F.2d at 1527; Miller v. Marsh , 766 F.2d 490,

492 (11th Cir. 1985); Champion Intern. Corp. v. Wideman , 733

So. 2d 559, 561 (Fla. 1st DCA 1999); Prather v. Mold - Ex Rubber

Company , DOAH Case No. 01 - 3645, Recommended Order at 24 - 25

(Mar. 4, 2002), adopted in toto FCHR Order No. 02 - 043 (Sept. 5,

2002).

83. Respondent has the burden to prove that Petitioner

failed to mitigate her damages by seeking to obtain

substantially comparable employment. See Weaver 922 F. 2d at

1527. If Respondent proves "that [Petitioner] has not made

reasonable efforts to obtain work, [it] does not also have to

establish the availability of substantially compara ble

employment." Id.

84. Because Petitioner admitted in her testimony at the

hearing and in her interrogatory responses received into

evidence as Exhibit R1 that she did not look for another job

between the time that her employment with Popeye's was

termi nated and the time that she went away to college at Barry,

she is not entitled to any back pay. 7

85. Petitioner's failure to specifically request

reinstatement or front pay does not preclude an award of such

relief. See Whitehead , 1994 WL 1028127, at *18 ; Nord , 758 F.2d

at 1473 n.12. Nevertheless, for the reasons that follow, it is

concluded that neither reinstatement nor front pay is

appropriate under the circumstances of this case.

86. There is no factual or legal basis that would preclude

an award of reinstatement in this case. Indeed, Respondent

expressed its willingness to rehire Petitioner now that she

is 18, and there was no evidence that there is (or ever has

been) a hostile work environment at Popeye's towards Petitioner.

Cf. Pollard v. E.I. du Pont de Nemours & Company , 532 U.S. 843,

846 (2001) (stating that front pay is a substitute for

reinstatement where " reinstatement is not viable because of

continuing hostility between the plaintiff and the employer or

its workers, or because of psycholog ical injuries suffered by

the plaintiff as a result of the discrimination" ). To the

contrary, Petitioner testified that she was treated well during

the course of her employment at Popeye's. Nevertheless, because

Petitioner is presently attending college in Miami and she made

it clear at the hearing that she is not interested in returning

to work for Popeye's in Sanford, an award of reinstatement would

serve no real purpose.

87. The Commission has described front pay as

"compensation for future economic lo ss stemming from present

discrimination that cannot be remedied by traditional rightful -

place relief such as hiring, promotion or reinstatement."

Whitehead , 1994 WL 1028127, at *18 (citation omitted). Accord

Pollard , supra .

88. As explained by the Commis sion in Whitehead , "[s]ome

of the factors which can make traditional rightful - place relief

inappropriate include the lack of a reasonable prospect that

Petitioner can obtain comparable employment, the existence of an

employer - employee relationship that is pervaded with hostility,

and the existence of only a relatively short period of time for

which front pay is to be awarded." Id. at 19 (citing Hybert v.

The Hearst Corporation , 900 F.2d 1050 (7th Cir. 1990).

89. Applying those factors to this case, it is c oncluded

that Petitioner is not entitled to an award of front pay since

the reinstatement offered by Respondent was not shown to be

legally inappropriate. In this regard, Petitioner's decision to

reject reinstatement, while understandably based upon her d esire

to attend college in Miami rather than have a career at Popeye's

in Sanford, does not render that remedy legally inappropriate so

as to require an award of front pay.

90. Moreover, there was no evidence that Petitioner would

be subjected to a hostile work environment if she returned to

work at Popeye's. There was also no evidence that Petitioner is

unable to obtain comparable employment. To the contrary, the

evidence establishes that Petitioner was able to obtain

employment through a work study prog ram at Barry, a comparable

salary that she had at Popeye's, and that she will continue that

employment when she returns to Barry after her summer vacation.

91. In sum, even if it is determined that Respondent

committed an unlawful employment practice when it fired

Petitioner in December 2001 based solely upon her age,

Petitioner is not entitled to any back pay, front pay, or other

affirmative relief; and, because Petitioner refused the

reinstatement offered by Respondent, she is not entitled to any

relief i n this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order which dismisses Petitioner's unlawful

employment practice claim again st Respondent.

DONE AND ENTERED this 15th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 2003.

ENDNOTES

1/ By Order dated July 18, 2003, the filing deadline for

parties' PROs was extended by four days, through July 25, 2003.

That Order gave Petitioner leave to supplement her post - hearing

submittal, but she did not do so.

2/ There is no credible evidence in the record to corroborate

Petitioner's testimony that she worked between 20 and 25 hours

per week, and Petitioner testified that she had no reason to

dispute the accuracy of the earning records introduced by

Respondent.

3/ This amount is computed by multiplying the 28 weeks betw een

December 1, 2001, and June 16, 2002, by 14.625 hours per week by

$5.75 per hour.

4/ This amount is computed by multiplying the nine additional

weeks between June 16, 2002, and August 15, 2002, by 14.625

hours per week by $5.75 per hour.

5/ A ge (alo ng with handicap and marital status) were added to

the list of proscribed forms of discrimination in 1977. See

Donato , 767 So. 2d at 1148 (citing Chapter 77 - 34a, Section 1,

Laws of Florida).

6/ The plaintiff in Sondel was 63 years old. See Sondel , 685

So. 2d 925. As a result, it was unnecessary for the court to

address the issue presented in this case -- i.e. , whether the

Act applies to persons under the age of 40 or whether it only

applied to persons over 40 like the ADEA -- and, therefore, the

court' s passing comment regarding the applicability of federal

law cannot be construed as a holding that the scope of the Act

is the same as the scope of the ADEA.

7/ Even if Petitioner were entitled to back pay, it would only

be for the period between Decembe r 1, 2001, and June 16, 2002,

because Petitioner failed to establish that she could have (or

would have) continued to work at Popeye's in Sanford while she

attended the BCC summer program in Daytona Beach. Moreover,

Petitioner earned more during the BCC s ummer program ($800.00)

than she would have earned had she continued to work at Popeye's

from June 16, 2002, through the end of the summer ($756.84).

See Kolb , 694 F.2d at 874 (stating that damages from termination

were complete and settled when plaintiff started earning more at

his new job than he earned at the job from which he was

terminated). Thus, if the Commission concludes contrary to the

determinations above that Petitioner is entitled to back pay,

the award should be limited to $2,354.63, plus si mple interest

calculated at the statutorily - provided rate. See Whitehead ,

1994 WL 1028127, at *21. To the extent that the Commission

concludes that back pay should be computed for the period of

December 1, 2001, through August 2002, the $800.00 stipend f rom

BCC would be a set - off against the award because it was not

established that Petitioner could have continued working at

Popeye's in Sanford while she attended the BCC summer program in

Daytona Beach. See Champion Intern. Corp , 733 So. 2d at 563

(earni ngs from "moonlighting job" must be deducted from back pay

award where plaintiff could not have held both jobs at the same

time). Accordingly, the net back pay award to Petitioner would

be $2,311.47, plus interest, computed as follows $2,354.63

(12/1/01 - 6/16/02) plus $756.84 (6/16/02 - 8/15/02) minus

800.00 (BCC stipend).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas H. Kiggans, Esquire

Phelps Dunbar, LLP

Post Office Box 4412

Baton Rouge, Louisiana 70821 - 4412

Kimberly N. Williams

c/o Linda J. Williams

1907 South Lake Avenue

Sanford, Florida 32771

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Sui te 100

Tallahassee, Florida 32301

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 a gency that

will issue the final order in this case.