17-004731 Deborah Owens vs. Florida Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Tuesday, March 13, 2018.

Summary: 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 on her disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH OWENS,

Petitioner,

vs. Case No. 17 - 4731

FLORIDA DEPARTMENT OF

AGRICULTURE AND CONSUMER

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

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.

APPEARANCES

For Petitioner: John D. Whitaker, Esquire

Rodney Warren Smith, Esquire

Avera & Smith, LLP

2814 Southwest 13t h Street

Gainesville, Florida 32608

For Respondent: Jonathon D. Rhodes , Esquire

Florida Department of Agriculture

and Consumer Services

The Mayo Building

407 South Calhoun Street, Suite 509

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Florida Department of Agriculture and Consumer

Services (Respondent or Department) discriminated aga inst

Deborah Owens (Petitioner ) by denying her reasonable

accommodation and dischargin g her based on her disability.

PRELIMINARY STATEMENT

On January 30, 2017 , Petitioner filed a n 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 issu ed 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 Ðthe Florida Commission on Human Relations has

determined that there is no reasonable cause to believe that an

unlawful practice occurred.Ñ

The Notice advised Petitioner that the Commission's

D etermination would become final unless Petitioner filed a

Petition for Relief within 35 days. Petitioner timely filed a

Petition for R elief 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 o n PetitionerÓs Petition for

Relief. A n 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 be half, and offered 28 exhibits received into

evidence as PetitionerÓs Exhibits P - 1 through P - 28. In addition

to an expanded inquiry of some of Petitioner's witnesses, t he

Department presented the testimony of two more witnesses and

offered 22 exhibits rece ived into evidence as RespondentÓs

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 respecti ve Proposed Recommended Orders, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was a Career Service employee of the

Department as an Environmental Specialist II from 2009 until her

termination on May 5, 2016.

2. As an Environmental Specialist II , commonly referred to

as an Ðinspector , Ñ Petitioner worked in the DepartmentÓs

Division of Agricultural Environmental Services , Bureau of

Insp ection and Incident Response (DepartmentÓs Bureau) .

3. As an inspector , Pe titioner spent approximately

40 percent of her time performing inspections and investigations

pursuant to c hapters 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.

4. The rest of PetitionerÓ s duties consisted of preparing

reports based o n her inspections and investigations, and

maintaining knowledge of applicable statutes and rules.

5. A ll of the inspectors in the DepartmentÓs Bureau were

required to be physically capable of performing assigned

inspections. While t he amount of climbing varied from month to

month and place of inspection , Environmental Specialist II s , as

part of their job as inspectors , are required to climb.

6. In the case of fertilizer inspections, inspector s are

required to take samples from fertilizer plants , storage

vehicles , and trailers in the field. While c limbing is not

required at those fertilizer plants that have sampling rooms ,

not all fertilizer plants have sampling rooms . Therefore,

i nspector s need to be prepared to climb at fertilizer plants .

In addition, inspectors are required to climb atop K illebrew

trailers 2 / or similar equipment in the field to take samples .

7. For inspection of Killibrews , which have separate

storage compartments housing fertilizer , a n inspecto r must use a

ladder to climb to the top of the K illibrew and obtain samples.

8. Seed inspections may also involve climbing , dependi ng

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 .

9. During Petiti onerÓs tenure as an inspector, c hapter 482

pest control inspections were added to the inspection duties of

Environmental Specialist II following a reorganization of the

DepartmentÓs Bureau. While , at the time of the hearing,

climbing for those types of inspections ha d been put on hold,

fumigation inspections have , at times, require d climbing on a

ladder into attic spaces or to reach higher exterior portions of

a building.

10. C limbing is a variable part of every inspector Ó s job.

The amount of climbing that is required increase s d uring heavy

agricultural growing seasons . Although a variable activity,

when climbing for inspections is required, it can be laborious.

11. A ll of the testifying witnesses , who were ins pectors

for the DepartmentÓs Bureau , reported they were required to

climb in performing their jobs for the Department .

12. In applying for her Environmental Specialist II

position, on a document entitled ÐPesticide Compliance

Environmental Specialist II Self - Screening/ Willingness

Questionnaire ,Ñ which listed requirements necessary for all

candidates, Petitioner affirmatively acknowledged that she was

willing and able to Ð[ c ] limb and work on top of delivery and

application equipment to obtain samples when necessary . Ñ

13. While the climbing requirement varies in frequency ,

c limbing was a necessary part of PetitionerÓs job duties as an

inspector for the Department , and is a necessary component of an

Environmental Specialist IIÓs job.

14. In 2015, Petition er took medical leave and underwent

double k nee replacement surgery .

15. Historically, Department management meets each fiscal

year to review inspection numbers b y region for purposes of

determining and assign ing 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 20 15. 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.

16. Upon her return to work in November 2015, Petitioner

had physical limitations s temming from her knee surgery.

Petitioner presented to her then - supervisor at the Department,

ÐDustyÑ Markham, a doctorÓs note dated November 20, 2015. The

doctorÓs note , from PetitionerÓs treating physician, Dr. Rich ard

Vlasak, on UF Health PhysicianÓs 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.

17. Upon her return, b ased on medical information

Petitioner provided to the DepartmentÓs management, Petitioner

was assigned only those inspections that she was medically

capable of performing.

18. In Fe bruary 2016, Petitioner was assigned to the

DepartmentÓs Region I , and Bryan Smithey, an e nvironmental

m anager with the Department , became Petitioner Ós direct

supervisor. Mr. Smithey oversees all of Region I, a territory

stretching from Levy County , northward , a nd westward to Escambia

County.

19. Mr. Smithey supervised Petitioner and eight other

environmental s pecialists. Petitioner was assigned a territory

within Region I consisting of Gilchrist, Dixie , and Levy

Counties.

20. PetitionerÓs ass igned territory included a fertilizer

plant in Trenton, Florida. This plan t did not have a sampling

room. Because of PetitionerÓs temporary restrictions on

climbing, other inspectors were assigned to cover PetitionerÓs

inspections at the Trenton plant.

21. 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 t wo

hours , one - wa y , from his home.

22. 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.

23. The inspections that Mr. Coveney and Mr. Harris

conducted for Petitioner were additional inspections , separate

and apart from their regularly assigned duties.

24. The inspections conducted for Petitioner were not

accommodations for her disability. Rather, they were temporary

assistances provided for P etitioner at a time when Petitioner

was unable to perform the essential duty of climbing as an

inspector.

25. Petitioner argues in her Proposed Recommended Order

that an e - mail dated November 19, 2015, in which she suggest ed

working from home Ðwhile the m atter gets cleared upÑ was a

request for accommodation for her disability . It is found ,

however, that P etitioner Ós suggestion was a request for

permission to do some work from home for a short time, before

actually returning to work , be cause she was out o f sick leave;

and it was not a request for accommodation of her disability.

26. In March 2016, Petitioner presented another doctorÓs

note to management. This note, dated March 10, 2016 , was also

from Dr. Vlasak. The note again stated that Petitioner

Ð[c]annot climb on fertilizer trailers, killbrews [sic] or

climbing ladders . Ñ The new letter, however, stated: ÐThe above

limitations are permanent.Ñ

27. Respondent has a policy governing Inefficiency or

Inability to Perform Job Duties in Administrati ve Policy and

Procedu re (AP&P) No. 5 - 3. The policy states, ÐEmployees shall,

at a minimum, be able to perform duties in a comp etent and

adequate manner.Ñ Id. A violation of this standard can result

in termination.

28. B y letter dated April 1, 2016 ( In tent to Terminate

Letter) , the Department informed Petitioner of its intention to

dismiss her . The Intent to Terminat e 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 s ince

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).

29. 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 (Pre d e ter mination Conference ) , where she would be

allowed to answer , orally or in writin g , the charges against

her.

30. On April 12, 2016 , prior to the scheduled

Predetermination Conference , Petitioner provided to Department

management another letter regarding her work stat us. The

letter, dated April 12, 2016, was not signed by her physicia n.

Rather, it was signed by a licensed practical nurse ( LPN ) . The

April 12, 2016 , letter states that it is a Ðrevised work status

letter.Ñ The letter restates the previous Ð[c]annot climb on

fertilizer trailers, killbrews [sic] or climbing ladders , Ñ but,

instead of advising that the restriction s were permanent, stat es

that Ð[t]he above limitations are temporary for 12 months as of

3/10 / 16 at which time we will re - evaluate work status. Ñ

31. The April 12, 2016, letter was apparently authorized

by P etitionerÓs treating physician, as the LPNÓs signature

appears above Dr. VlasakÓs signature block, and the letter bears

the same UF Health PhysicianÓs letterhead as previous letters

from Dr. Vlasak.

32. Petitioner attended the Predetermination Conferenc e,

during which she advised that she was currently unable to climb.

33. The April 12, 2016, letter was considered at the

Predetermination Conference . T he DepartmentÓs m emorandum dated

April 27, 2016 , regarding the Predetermination Conference,

authored by the DepartmentÓs assistant d ire ctor of Division of

Food Safety , states in part:

A subsequent letter dated April 12, 2016,

from a member of the physicianÓs staff

specified that these same limitations were

temporary for the next 12 months at which

time they will be re - evaluated.

34. Even though the April 12, 2016, letter was considered,

th e a ssistant d irector supported the recommend ation to terminate

Petitioner. As he ex plained in the April 27, 2016, m emorandum:

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

almo st 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.

35. Consistent with the Inte nt to Terminate L etter and the

assistant d irectorÓs support for termination, by letter dated

May 5, 2016, signed by the c hief of the DepartmentÓs Bureau of

Personnel Management, Petitioner was terminated from her

position with th e Department.

36. Petitioner never requeste d an accommodation for a

disability prior to her termination.

CONCLUSIONS OF LAW

37. 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 .

38. The Florida Civil Rights Act of 1992 , as amended, (the

Act) is codified in sections 760.01 through 760.11 , Florida

Statutes .

39. Section 760. 10 provides, 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

individual Ó s race, color, religion, sex,

national origin, age, handicap , or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

oppor tunities, or adversely affect any

individual Ó s status as an employee, because

of such individual Ó s race, color, religion,

sex, national origin, age, handicap , or

marital status.

(emphasis added).

40. The Department is an ÐemployerÑ within the meaning of

the Act. See § 760.02 (7) , Fla. Stat. (Ð'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.Ñ) ; see also

§ 760.02(7 ), Fla. Stat. (ÐÒPersonÓ includes . . . any

governmental entity or agency.Ñ) .

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

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq . A s

applied to claims of discrimination based on handicap, the Act

is construed in confo rmity with the federal American s with

Disabilities Act of 1990, as amended (ADA). 3 / Byrd v. BT Foods,

Inc. , 948 So. 2d 921, 925 (Fla. 4th DCA 2007).

42. 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 dis criminatory intent, using

the three - part shifting Ðburden of proofÑ 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).

4 3 . Under that test , f irst, 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, t he burden shifts to Respondent to

Ð articulate some legitimate, nondiscriminatory reason Ñ 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 .

44 . To establish a prima facie case of discrimination

based on disability, Petitioner must prove by a preponderance of

the evidence: (1) that s he is a handicapped [or disabled]

person within the meaning of section 760.10(1)(a); (2) that s he

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 9 25 .

45 . As to the first element, t he term Ð handicap Ñ in the

Florida Civil Rights Act is treated as equivalent to the term

Ð disability Ñ in the Americans with Disabilities Act. Byrd ,

948 So. 2d at 926.

46. Ð The ADA defines a ÒdisabilityÓ as a Ò physical Ó or

mental impairment that substantially limits one or more of the

major lif e activities of such individual; a record of such

impairment; or being regarded as having such an impairment. Ñ

42 U.S.C. § 12102(2). Ð ÒMajor life activitiesÓ include

Òfunctions s uch as caring for oneself, performing manual tasks,

walking , seeing, hearing, speaking, breathing, learning and

working.Ó Ñ 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/

47. PetitionerÓs evidence with regard to t he first

element , i.e., to show that s he is handicapped or disabled

within the meaning of the Act and the ADA, was limited . G iven

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 . T he inability to walk , however, is not the

basis of PetitionerÓs claimed disability. Rather, PetitionerÓs

evidence of a physical impairment relates to her inability to

climb .

48. Ð W alkingÑ has consistently appeared in the definitive

exam ples under Ðm ajor life activities Ñ 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 .

49. Despite little evidence beyond the fact that

Petitioner could conduct inspections that required climbing,

a pplicable federal rules of construction , however, provide that

the Ðterm Òsubstantially limitsÓ shal l be construed broadly in

favor of expansive coverage , to the maximum extent permitted by

the terms of the ADA . Ñ See 29 C.F.R. § 1630.2(j)(1) (i) .

Further , although the evidence was not thoroughly developed,

PetitionerÓs climbing limitations likely restri ct ed Petitioner

from a broader number of jobs , thus demonstrating that

Petitioner was substantial ly limit ed in the performance of a

major life activity Ðas compared to most people in the general

population.Ñ 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 w as handicapped and/or

disabled, within the meaning of the Act and the ADA .

50. For the second element, Petitioner must show that she

was qualified for h er position. In order to show that she was

Ð qualified, Ñ Petitioner must show that s he could perform the

essential functions of the job, either with or without

reasonable accommodation. DÓAngelo v. ConAgra Foods, Inc. ,

42 2 F.3d 1220, 1229 ( 11th Cir 2005); McCaw Cellular Comm cÓ ns . v.

Kwiatek , 763 So. 2d 1063, 1065 (Fla . 4th DCA 1999)(citing

42 U.S.C.A. § 1211(8)) .

51. 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 employerÓs judgment,

written job descriptions prepared before advertising or

interviewing applicants for the job, testimony of the employeeÓs

supervisor, and experience of other incumbents. Id. ; Spears v.

Creel , 607 Fed. Appx. 943, 949 (11th Cir. 2015).

52. Based on the evidence outlined in the Findings of

Fact, above, t he record establishe d that climbing is an

es sential function of the Environmental Specialist II position

held by Petitioner because climbing is required to collect some

of the samples for assigned inspections.

53. Although climbing is not specifically mentioned in the

DepartmentÓs official job desc ription , the ÐPesticide Compliance

Environmental Specialist II Self - Screening/Willingness

Questionnaire , Ñ signed and agreed to by Petitioner prior to her

hire , list s the ability to Ð [c]limb and work on top of delivery

and application equipment to obtain samples when necessary . Ñ

A ll 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 inspect ors 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).

54. 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 .

55. 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

Ðmay prove discrimination [based on disability] in two ways,

disparate treatment and a failure to make a reasonable

accommodation.Ñ 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 cov ered entity

fails to fulfill its affirmative duty to

Ðmake reasonable accommodation to the known

physical or mental limitations of an

otherwise qualified applicant or employee

with a disabilityÑ without demonstrating

that Ðthe accommodation would impose an

undue hardship on the operation of the

business.Ñ [Citation omitted] Thus, while

disparate treatment claims are concerned

with policing employers' actions based on

invidious discriminatory intent, Ð[t]he

reasonable accommodation requirement is best

unde rstood as a means by which barriers to

the equal employment opportunity of an

individual with a disability are removed or

alleviated.Ñ [Citation omitted]

Id. at *10 - 11.

56. 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, 1 368

(11 th Cir. 1 999). In order to be similarly situated, the courts

require that the Ðquantity and quality of the comparatorÓs

misconduct be nearly identical to prevent courts from se cond -

guessing employersÓ reasonable de cisions and confusing apples

with oranges.Ñ 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 w as no

evidence of any similarly situated employee being allowed to

forego their climbing duties for an extended, indefinite peri od

of time , as in PetitionerÓ s case .

57. In sum, t he 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. ÐThe

employer may fire an employee for a good reason, a bad reason, a

reason based on erroneous fac ts, or for no reason at all, as

long as its action is not for a discriminatory reason.Ñ See

DepÓt 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 cas es cited therein. Petitioner

did not show that the DepartmentÓs stated reason for her

termination was mere pretext, and the evidence was otherwise

insufficient to demonstrate discriminatory animus on the part of

the Department .

58. Petitioner also did not prove that the Department

discriminated against her by failing to provide reasonable

accommodation for her disability.

59. The McDonnell Douglas burden - shifting analysis is not

applicable to reasonable accommodation cases. Nadler , 2007 U.S.

App. Lexi s 20272, at *28. As explained by the Eleventh Circuit

in Frazier - White v. Gee , 818 F.3d 1249, 1255 - 1256 (11th Cir.

2016):

T he 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 und ue hardship.

Earl v. Mervyns, Inc. , 207 F. 3d 1361,

1367 (11th Cir. 2000). Moreover, an

employerÓs Ðduty to provide a reasonable

accommodation is not triggered unless a

specific demand for an accommodation has

been made.Ñ Gaston v. Bellingrath Gardens &

Home, Inc. , 167 F.3d 1361, 1363 - 64 (11th

Cir. 1999)(Ð[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.Ñ).

60. T he 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 o ther employees to cover for

Petitio ner Ós inability to perform her job .

61. 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 PetitionerÓs territory were required to drive many miles

ou tside their territories and ordinary job duties to cover

PetitionerÓs inability to perform climbing inspections .

Reassignment would not cure the problem, because all inspectors

were required to climb. Moreover, u nder the ADA, an employer is

2 2

not required Ðto reallocate job duties in order to change the

essential functions of a job.Ñ Holbrook v. City of Alpharetta ,

112 F.3d 1522, 1528 (11th Cir. 1997).

62. Rather than a reasonable accommodation, the temporary

reassignment of duties provided for Petitioner was a hardship

for the Department and its inspectors who performed PetitionerÓs

climbing inspections . O nce it became apparent that PetitionerÓs

inability to perform an essential part of her job would be

prolonged, or perhaps perma nent, Petitioner was terminated.

63. 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 .

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Complaint of

Discrimination and Petition for Relief consistent with t he terms

of this Recommended Order.

DONE AND ENTERED this 13th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2018 .

ENDNOTE S

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 Ðkillibrews,Ñ

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 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Jonathan D. Rhodes, Esquire

Florida Department of Agriculture

and Consumer Services

The Mayo Building

407 South Calhoun Street, Suite 509

Tallahassee, Florida 32399

(eServed)

John D. Whitaker, Esquire

Rodney Warren Smith , Esquire

Avera & Smith, LLP

2814 Southwest 13th Street

Gainesville, Florida 32608

(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.