vs.
Case No. 17-4731
Respondent.
An administrative hearing was conducted in this case on December 20, 2017, in Gainesville, Florida, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: John D. Whitaker, Esquire
For Respondent: Jonathon D. Rhodes, Esquire
Whether the Florida Department of Agriculture and Consumer Services (Respondent or Department) discriminated against Deborah Owens (Petitioner) by denying her reasonable accommodation and discharging her based on her disability.
On January 30, 2017, Petitioner filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (Commission or FCHR). The Commission investigated the Complaint, which was assigned FCHR No. 201700372. Following completion of its investigation, the Commission issued a Determination dated July 28, 2017, finding no reasonable cause. On the same date, the Commission sent Petitioner a Notice of Determination (Notice) on the Complaint stating that “the Florida Commission on Human Relations has determined that there is no reasonable cause to believe that an unlawful practice occurred.”
The Notice advised Petitioner that the Commission's Determination would become final unless Petitioner filed a Petition for Relief within 35 days. Petitioner timely filed a Petition for Relief reiterating the allegations of her Complaint. On August 21, 2017, the Commission filed a Transmittal of Petition with the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge to
conduct an administrative hearing on Petitioner’s Petition for Relief. An administrative hearing for this case was first scheduled for November 2, 2017, but was continued, rescheduled, and heard on December 20, 2017.
At the hearing, Petitioner called five witnesses, testified on her own behalf, and offered 28 exhibits received into evidence as Petitioner’s Exhibits P-1 through P-28. In addition to an expanded inquiry of some of Petitioner's witnesses, the Department presented the testimony of two more witnesses and offered 22 exhibits received into evidence as Respondent’s Exhibits R-2 through R-23.
The proceedings were recorded but no transcript was ordered. The parties were given until January 19, 2018, to submit their proposed recommended orders. The parties timely filed their respective Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Petitioner was a Career Service employee of the Department as an Environmental Specialist II from 2009 until her termination on May 5, 2016.
As an Environmental Specialist II, commonly referred to as an “inspector,” Petitioner worked in the Department’s Division of Agricultural Environmental Services, Bureau of Inspection and Incident Response (Department’s Bureau).
As an inspector, Petitioner spent approximately
40 percent of her time performing inspections and investigations pursuant to chapters 388 (mosquito control), 482 (pest control),
487 (pesticide regulation and safety), 576 (agricultural fertilizers), 578 (seed), and 580 (commercial feed and feedstuff), Florida Statutes,1/ and related administrative regulations.
The rest of Petitioner’s duties consisted of preparing reports based on her inspections and investigations, and maintaining knowledge of applicable statutes and rules.
All of the inspectors in the Department’s Bureau were required to be physically capable of performing assigned inspections. While the amount of climbing varied from month to month and place of inspection, Environmental Specialist IIs, as part of their job as inspectors, are required to climb.
In the case of fertilizer inspections, inspectors are required to take samples from fertilizer plants, storage vehicles, and trailers in the field. While climbing is not required at those fertilizer plants that have sampling rooms, not all fertilizer plants have sampling rooms. Therefore, inspectors need to be prepared to climb at fertilizer plants. In addition, inspectors are required to climb atop Killebrew trailers2/ or similar equipment in the field to take samples.
For inspection of Killibrews, which have separate storage compartments housing fertilizer, an inspector must use a ladder to climb to the top of the Killibrew and obtain samples.
Seed inspections may also involve climbing, depending on how the seed is arranged. In some cases, bagged seed is stacked on large pallets, in which case, unless it can be moved, an inspector may have to climb in order to take a sample.
During Petitioner’s tenure as an inspector, chapter 482 pest control inspections were added to the inspection duties of Environmental Specialist II following a reorganization of the Department’s Bureau. While, at the time of the hearing, climbing for those types of inspections had been put on hold, fumigation inspections have, at times, required climbing on a ladder into attic spaces or to reach higher exterior portions of a building.
Climbing is a variable part of every inspector’s job.
The amount of climbing that is required increases during heavy agricultural growing seasons. Although a variable activity, when climbing for inspections is required, it can be laborious.
All of the testifying witnesses, who were inspectors for the Department’s Bureau, reported they were required to climb in performing their jobs for the Department.
In applying for her Environmental Specialist II position, on a document entitled “Pesticide Compliance
Environmental Specialist II Self-Screening/Willingness Questionnaire,” which listed requirements necessary for all candidates, Petitioner affirmatively acknowledged that she was willing and able to “[c]limb and work on top of delivery and application equipment to obtain samples when necessary.”
While the climbing requirement varies in frequency, climbing was a necessary part of Petitioner’s job duties as an inspector for the Department, and is a necessary component of an Environmental Specialist II’s job.
In 2015, Petitioner took medical leave and underwent double knee replacement surgery.
Historically, Department management meets each fiscal year to review inspection numbers by region for purposes of determining and assigning the minimum number of inspections for each inspector for the fiscal year. At the meeting for the 2015-2016 fiscal year, Petitioner was assigned a reduced number of inspections based on the understanding that she would be
absent from work for approximately six months due to her medical leave in 2015. Instead of a full fiscal year of goals, Petitioner was given six months of performance goals, reducing the total number of inspections assigned to Petitioner based on her medical leave of absence.
Upon her return to work in November 2015, Petitioner had physical limitations stemming from her knee surgery.
Petitioner presented to her then-supervisor at the Department, “Dusty” Markham, a doctor’s note dated November 20, 2015. The doctor’s note, from Petitioner’s treating physician, Dr. Richard Vlasak, on UF Health Physician’s stationary, stated, in pertinent part:
Deborah Owens has been under my care for treatment of bilateral knee DJD, which included surgery S/P bilateral total knee arthroplasties performed 5/20/15.
Limitations:
Patient may return to work as of 11/20/15 with restrictions. No cannot [sic] climb on fertilizer trailers, killbrews [sic] no climbing ladders.
The above limitations are temporary for
3 months after return to work.
Patient is expected to make a full recovery and resume all activities after 3 months time.
Upon her return, based on medical information Petitioner provided to the Department’s management, Petitioner was assigned only those inspections that she was medically capable of performing.
In February 2016, Petitioner was assigned to the Department’s Region I, and Bryan Smithey, an environmental manager with the Department, became Petitioner’s direct supervisor. Mr. Smithey oversees all of Region I, a territory stretching from Levy County, northward, and westward to Escambia County.
Mr. Smithey supervised Petitioner and eight other environmental specialists. Petitioner was assigned a territory within Region I consisting of Gilchrist, Dixie, and Levy Counties.
Petitioner’s assigned territory included a fertilizer plant in Trenton, Florida. This plant did not have a sampling room. Because of Petitioner’s temporary restrictions on climbing, other inspectors were assigned to cover Petitioner’s inspections at the Trenton plant.
One of the inspectors who covered for Petitioner was Andreas Coveney. Mr. Coveney conducted numerous inspections for Petitioner at the Trenton plant. In order to conduct the Trenton plant inspections, Mr. Coveney had to drive over two hours, one-way, from his home.
Another inspector, Ed Harris, conducted over
40 inspections for Petitioner at the Trenton plant. In doing so, Mr. Harris had to drive from his assigned area of Ocala.
The inspections that Mr. Coveney and Mr. Harris conducted for Petitioner were additional inspections, separate and apart from their regularly assigned duties.
The inspections conducted for Petitioner were not accommodations for her disability. Rather, they were temporary assistances provided for Petitioner at a time when Petitioner
was unable to perform the essential duty of climbing as an inspector.
Petitioner argues in her Proposed Recommended Order that an e-mail dated November 19, 2015, in which she suggested working from home “while the matter gets cleared up” was a request for accommodation for her disability. It is found, however, that Petitioner’s suggestion was a request for permission to do some work from home for a short time, before actually returning to work, because she was out of sick leave; and it was not a request for accommodation of her disability.
In March 2016, Petitioner presented another doctor’s note to management. This note, dated March 10, 2016, was also from Dr. Vlasak. The note again stated that Petitioner “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders.” The new letter, however, stated: “The above limitations are permanent.”
Respondent has a policy governing Inefficiency or Inability to Perform Job Duties in Administrative Policy and Procedure (AP&P) No. 5-3. The policy states, “Employees shall, at a minimum, be able to perform duties in a competent and adequate manner.” Id. A violation of this standard can result
in termination.
By letter dated April 1, 2016 (Intent to Terminate Letter), the Department informed Petitioner of its intention to dismiss her. The Intent to Terminate Letter explained, in part:
On March 10, 2016 we received a letter from your physician stating that you are permanently restricted from climbing on fertilizer trailers, killibrews and ladders. While your medical condition is not being questioned, you are expected to, at the minimum, be able to perform duties in a competent and adequate manner.
As an employee with the department since December 11, 2009, you are aware that you must be able to perform the essential duties of your position. Your actions constitute a violation of AP&P No. 5-3, Section V, Inefficiency or Inability to Perform Assigned Duties, (Page 3).
The Intent to Terminate Letter further informed Petitioner of her right to attend a meeting to be conducted pursuant to section 110.227(5)(a), Florida Statutes, on
April 26, 2016 (Predetermination Conference), where she would be allowed to answer, orally or in writing, the charges against her.
On April 12, 2016, prior to the scheduled Predetermination Conference, Petitioner provided to Department management another letter regarding her work status. The letter, dated April 12, 2016, was not signed by her physician. Rather, it was signed by a licensed practical nurse (LPN). The April 12, 2016, letter states that it is a “revised work status
letter.” The letter restates the previous “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders,” but, instead of advising that the restrictions were permanent, states that “[t]he above limitations are temporary for 12 months as of 3/10/16 at which time we will re-evaluate work status.”
The April 12, 2016, letter was apparently authorized by Petitioner’s treating physician, as the LPN’s signature appears above Dr. Vlasak’s signature block, and the letter bears the same UF Health Physician’s letterhead as previous letters from Dr. Vlasak.
Petitioner attended the Predetermination Conference, during which she advised that she was currently unable to climb.
The April 12, 2016, letter was considered at the Predetermination Conference. The Department’s memorandum dated April 27, 2016, regarding the Predetermination Conference, authored by the Department’s assistant director of Division of Food Safety, states in part:
A subsequent letter dated April 12, 2016, from a member of the physician’s staff specified that these same limitations were temporary for the next 12 months at which time they will be re-evaluated.
Even though the April 12, 2016, letter was considered, the assistant director supported the recommendation to terminate Petitioner. As he explained in the April 27, 2016, memorandum:
In considering the information provided, I looked at Ms. Owens current position description and considered the physical requirements of the inspector position. The position requires someone with full physical capability. Ms. Owens has been medically limited from performing certain duties for almost a year already and is expected to be limited for at least another full year or possibly permanently. Therefore, I am supporting the recommendation for termination for inability to perform assigned duties.
Consistent with the Intent to Terminate Letter and the assistant director’s support for termination, by letter dated May 5, 2016, signed by the chief of the Department’s Bureau of Personnel Management, Petitioner was terminated from her position with the Department.
Petitioner never requested an accommodation for a disability prior to her termination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.; see also Fla. Admin. Code R. 60Y-4.016.
The Florida Civil Rights Act of 1992, as amended, (the Act) is codified in sections 760.01 through 760.11, Florida Statutes.
Section 760.10 provides, in pertinent part:
It is an unlawful employment practice for an employer:
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 individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
(emphasis added).
The Department is an “employer” within the meaning of the Act. See § 760.02(7), Fla. Stat. (“'Employer' means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”); see also
§ 760.02(7), Fla. Stat. (“‘Person’ includes . . . any governmental entity or agency.”).
The Act was patterned after Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq. As applied to claims of discrimination based on handicap, the Act is construed in conformity with the federal Americans with
Disabilities Act of 1990, as amended (ADA).3/ Byrd v. BT Foods,
Inc., 948 So. 2d 921, 925 (Fla. 4th DCA 2007).
As developed in federal cases, a prima facie case of discrimination under Title VII may be established by direct evidence, which, if believed, would prove the existence of discrimination without inference or presumption. Where direct evidence is lacking, one seeking to prove discrimination must rely on circumstantial evidence of discriminatory intent, using the three-part shifting “burden of proof” pattern established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Under that test, first, Petitioner has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if Petitioner sufficiently establishes a prima facie case, the burden shifts to Respondent to “articulate some legitimate, nondiscriminatory reason” for its action. Third, if Respondent satisfies this burden, Petitioner has the opportunity to prove by a preponderance of the evidence that the legitimate reasons asserted by Respondent are in fact mere pretext. McDonnell Douglas Corp., 411 U.S. at 802-04.
To establish a prima facie case of discrimination based on disability, Petitioner must prove by a preponderance of the evidence: (1) that she is a handicapped [or disabled] person within the meaning of section 760.10(1)(a); (2) that she
is a qualified individual; and (3) that Respondent discriminated against her on the basis of her disability. See Wolfe v.
Postmaster Gen., 488 Fed. Appx. 465, 466-67 (11th Cir. 2012);
Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000); Byrd,
948 So. 2d at 925.
As to the first element, the term “handicap” in the Florida Civil Rights Act is treated as equivalent to the term “disability” in the Americans with Disabilities Act. Byrd,
948 So. 2d at 926.
“The ADA defines a ‘disability’ as a ‘physical’ or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or being regarded as having such an impairment.”
42 U.S.C. § 12102(2). “‘Major life activities’ include ‘functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.’” Byrd, 948 So. 2d at 926; 45 C.F.R. § 84.3(j)(2)(ii); and 28 C.F.R. 41.31(b)(2) (1997).4/
Petitioner’s evidence with regard to the first element, i.e., to show that she is handicapped or disabled within the meaning of the Act and the ADA, was limited. Given the nature of her surgery involving the replacement of both knees, it stands to reason that there was a time when Petitioner could not walk. The inability to walk, however, is not the
basis of Petitioner’s claimed disability. Rather, Petitioner’s evidence of a physical impairment relates to her inability to climb.
“Walking” has consistently appeared in the definitive examples under “major life activities” listed in the applicable Code of Federal Regulation, quoted above. See 45 C.F.R.
§ 84.3(j)(2)(ii). Climbing does not appear in the list, and Petitioner did not expand on the limitations that she faced as a result of her surgery.
Despite little evidence beyond the fact that Petitioner could conduct inspections that required climbing, applicable federal rules of construction, however, provide that the “term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.” See 29 C.F.R. § 1630.2(j)(1)(i). Further, although the evidence was not thoroughly developed, Petitioner’s climbing limitations likely restricted Petitioner from a broader number of jobs, thus demonstrating that Petitioner was substantially limited in the performance of a major life activity “as compared to most people in the general population.” See 29 C.F.R. § 1630.2(j)(1)(ii). Therefore, for
purposes of this analysis, it is found that the evidence was sufficient to show that Petitioner was handicapped and/or disabled, within the meaning of the Act and the ADA.
For the second element, Petitioner must show that she was qualified for her position. In order to show that she was “qualified,” Petitioner must show that she could perform the essential functions of the job, either with or without reasonable accommodation. D’Angelo v. ConAgra Foods, Inc.,
422 F.3d 1220, 1229 (11th Cir 2005); McCaw Cellular Commc’ns. v.
Kwiatek, 763 So. 2d 1063, 1065 (Fla. 4th DCA 1999)(citing
42 U.S.C.A. § 1211(8)).
Essential functions are fundamental job duties that the employee is obligated to perform. 29 C.F.R. § 1630.2(n)(2). Employers are given discretion in determining fundamental job duties. Evidence of whether a particular function is essential includes, but is not limited to, the employer’s judgment, written job descriptions prepared before advertising or interviewing applicants for the job, testimony of the employee’s supervisor, and experience of other incumbents. Id.; Spears v.
Creel, 607 Fed. Appx. 943, 949 (11th Cir. 2015).
Based on the evidence outlined in the Findings of Fact, above, the record established that climbing is an essential function of the Environmental Specialist II position held by Petitioner because climbing is required to collect some of the samples for assigned inspections.
Although climbing is not specifically mentioned in the Department’s official job description, the “Pesticide Compliance
Environmental Specialist II Self-Screening/Willingness Questionnaire,” signed and agreed to by Petitioner prior to her hire, lists the ability to “[c]limb and work on top of delivery and application equipment to obtain samples when necessary.” All of the inspectors who testified at the final hearing confirmed that the ability to climb was an essential requirement
of the job. While the frequency of climbing inspections varies, depending on the season, all of the inspectors are required to climb. See Valdez v. City of Doral, 662 Fed. Appx. 803, 810 (11th Cir. 2016)(duties may be essential functions even though required relatively infrequently).
In failing to provide evidence that she would be able to perform her required climbing inspections, with or without reasonable accommodations, Petitioner failed to demonstrate that she was a qualified individual.
Even if Petitioner had demonstrated that she was qualified, Petitioner failed to show that the Department discriminated against her based on her disability. A petitioner “may prove discrimination [based on disability] in two ways, disparate treatment and a failure to make a reasonable accommodation.” Nadler v. Harvey, No. 06-12692, 2007 U.S. App.
LEXIS 20272 at *10 (11th Cir. Aug. 24, 2007)(analyzing a claim
of discrimination under the federal Rehabilitation Act and the ADA). As explained by the United States Eleventh Circuit Court of Appeals:
Disparate treatment involves discriminatory animus or intent and occurs when a disabled individual is treated differently than a non-disabled or less disabled individual because of his disability. [Citation omitted] By contrast, a failure to make reasonable accommodation claim requires no animus and occurs when a covered entity fails to fulfill its affirmative duty to “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability” without demonstrating that “the accommodation would impose an undue hardship on the operation of the business.” [Citation omitted] Thus, while disparate treatment claims are concerned with policing employers' actions based on invidious discriminatory intent, “[t]he reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.” [Citation omitted]
Id. at *10-11.
Petitioner did not show that the Department discriminated against her based on disparate treatment. To show disparate treatment, Petitioner was required to identify an employee who was similarly situated, but was treated more favorably. See Mannicia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999). In order to be similarly situated, the courts require that the “quantity and quality of the comparator’s
misconduct be nearly identical to prevent courts from second- guessing employers’ reasonable decisions and confusing apples with oranges.” Id. While Petitioner presented some evidence
that other inspectors had been allowed short respites (as was she) from their climbing duties for several months because of an injury or in order to care for a sick relative, there was no evidence of any similarly situated employee being allowed to forego their climbing duties for an extended, indefinite period of time, as in Petitioner’s case.
In sum, the evidence was insufficient to demonstrate that the Department was motivated by illegal discriminatory intent. Rather, the evidence showed that Petitioner was terminated because she could not perform the essential job duties, i.e. the inspections, for which she was hired. “The employer may fire an employee for 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.” See
Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1187 (Fla. 1st DCA 1991)(quoting Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181,
1187 (11th Cir. 1984)), and the cases cited therein. Petitioner did not show that the Department’s stated reason for her termination was mere pretext, and the evidence was otherwise insufficient to demonstrate discriminatory animus on the part of the Department.
Petitioner also did not prove that the Department discriminated against her by failing to provide reasonable accommodation for her disability.
The McDonnell Douglas burden-shifting analysis is not applicable to reasonable accommodation cases. Nadler, 2007 U.S.
App. Lexis 20272, at *28. As explained by the Eleventh Circuit in Frazier-White v. Gee, 818 F.3d 1249, 1255-1256 (11th Cir.
2016):
The ADA requires an employer to make "reasonable accommodations" to an otherwise qualified employee with a disability, "unless doing so would impose [an] undue hardship." Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (citing
42 U.S.C. § 12112(b)(5)(A) and 29 C.F.R.
§ 1630.9(a)). An accommodation is only reasonable if it allows the disabled employee to perform the essential functions of the job in question. Id.
The employee has the burden of identifying an accommodation and demonstrating that it is reasonable. Lucas, 257 F.3d at 1255-56. Assuming she cannot do so, the employer has no affirmative duty to show undue hardship. Earl v. Mervyns, Inc., 207 F.3d 1361,
1367 (11th Cir. 2000). Moreover, an employer’s “duty to provide a reasonable accommodation is not triggered unless a specific demand for an accommodation has been made.” Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363-64 (11th
Cir. 1999)(“[T]he initial burden of requesting an accommodation is on the employee. Only after the employee has satisfied this burden and the employer fails to provide that accommodation can the employee prevail on a claim that her employer has discriminated against her.”).
The evidence adduced at the final hearing was insufficient to demonstrate that Petitioner made a request for a reasonable accommodation for her disability that would allow her to perform the essential functions of her job. Petitioner asserts that an e-mail that she sent in November 2016, before returning to work, in which she asked for permission to work from home, was a request for a reasonable accommodation. The evidence, however, failed to demonstrate that working from home would allow Petitioner to perform the essential functions of her job as an inspector. Rather, the evidence showed that, without Petitioner on the job with the requisite ability to climb, the Department had to assign other employees to cover for Petitioner’s inability to perform her job.
Although the Department was willing to give Petitioner time to recover from her surgery by having others perform her assigned climbing inspections for a limited time, that willingness did not amount to a reasonable accommodation, because it did not allow Petitioner to perform the essential functions of her job. Rather, for a number of months, employees outside Petitioner’s territory were required to drive many miles outside their territories and ordinary job duties to cover Petitioner’s inability to perform climbing inspections. Reassignment would not cure the problem, because all inspectors were required to climb. Moreover, under the ADA, an employer is
not required “to reallocate job duties in order to change the essential functions of a job.” Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997).
Rather than a reasonable accommodation, the temporary reassignment of duties provided for Petitioner was a hardship for the Department and its inspectors who performed Petitioner’s climbing inspections. Once it became apparent that Petitioner’s inability to perform an essential part of her job would be prolonged, or perhaps permanent, Petitioner was terminated.
In sum, Petitioner failed to show that the Department discriminated against her by denying her a reasonable accommodation or that her termination was the result of unlawful discrimination based upon her disability.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order.
DONE AND ENTERED this 13th day of March, 2018, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2018.
1/ Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions which have not substantively changed since the time of the alleged discrimination.
2/ Referred to by witnesses at the hearing as “killibrews,” Killibrew trailers are agricultural trailers that typically have four hoppers, designed to carry fertilizer, that load from the top and dump to the side.
3/ See 42 U.S.C. § 12101, et seq. Titles I, II, III, and V of the original law are codified in Title 42, chapter 126, of the
U.S. Code beginning at section 12101. Title IV of the original law is codified in Title 47, chapter 5, of the U.S. Code. See Editor's Note to ADA, as amended in 2008.
4/ Those portions of the federal law and regulations, quoted above, have not changed since the decision in Byrd.
Tammy S. Barton, Agency Clerk
Jonathan D. Rhodes, Esquire Florida Department of Agriculture
John D. Whitaker, Esquire Rodney Warren Smith, Esquire Avera & Smith, LLP
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
