Eichmuller v. Sarasota County Government

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRIAN EICHMULLER,

Plaintiff,

v. Case No. 8:20-cv-47-T-33SPF

SARASOTA COUNTY GOVERNMENT,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Sarasota County Government’s Motion for Summary

Judgment (Doc. # 38), filed on November 13, 2020. Plaintiff

Brian Eichmuller responded on November 27, 2020. (Doc. # 44).

For the reasons that follow, the Motion is denied.

I. Background

Eichmuller was hired by the County to work as a Skilled

Trades Worker II in September 2018. (Doc. # 36 at Ex. 14).

Eichmuller’s job duties included “install[ing], replac[ing],

and modify[ing] mechanical and electrical equipment located

on and within Public Utilities facilities,” and “perform[ing]

lift station maintenance.” (Doc. # 36 at Ex. 15). He worked

in that position from September 17, 2018, to May 20, 2019.

(Doc. # 36 at Ex. 14; Doc. # 36 at Ex. 19).

During the interview process, the County told Eichmuller

that he would be required to obtain a Class A CDL license

during his probationary period of employment, which is the

first six months of employment. (Doc. # 35 at 33:23-37:2).

The County sent Eichmuller a conditional letter of employment

on September 7, 2018. (Doc. # 36 at Ex. 3). That letter

stated: “Class A CDL required within six (6) months of hire.

May be removed from the position if not obtained for not

meeting the minimum qualifications of the position.” (Id.).

The County then sent Eichmuller another letter confirming his

employment on September 13, 2018. (Doc. # 36 at Ex. 14). That

letter reiterated the Class A CDL requirement:

You also must obtain a CDL, Class A within six

months from the date of your new assignment. You

are unable to perform CDL duties until you obtain

a CDL license and pass a CDL drug screen. If you

are not successful, you may be separated from

employment since you will not meet the minimum

qualifications of the position.

(Id.). The confirmation letter noted that Eichmuller’s six-

month probation period would end on March 17, 2019. (Id.).

The process of obtaining a Class A CDL involves taking

three written tests, at which point a Class A CDL permit is

issued. (Doc. # 35 at 13:4-14:6). Subsequently, on a later

date after the individual has had time to practice driving,

the individual then takes a road test, which is administered

by the County’s school board. (Id. at 37:6-40:1; Doc. # 36 at

49:17-50:8). If that road test is passed, then the final Class

A CDL is issued. (Doc. # 35 at 37:6-40:1).

Once an employee passes the written exams and presents

a copy of his CDL permit to his supervisor, it is the County’s

practice to have the County’s water and wastewater operations

manager, David Sell, issue a check for the cost of the road

test and have the employee’s supervisor then contact the

school board to schedule the road test. (Id. at 36:6-19, 37:6-

40:1; Doc. # 36 at 6:8-10, 49:17-50:8). Victor Carlano,

Eichmuller’s direct supervisor, testified that, after he

would send the information to the school board requesting a

road test, the school board would then notify him of the

selected date for the road test. (Doc. # 37 at 38:18-25).

Eichmuller passed his written exams on January 22, 2019,

and was issued a Class A CDL permit. (Doc. # 44-2 at 2). In

February 2019, Eichmuller informed Carlano that he “was ready

to take the road exam” and gave Carlano a copy of his Class

A CDL permit. (Id.). A check for the cost of the road test

was issued on March 7, 2019. (Doc. # 39 at Ex. 2).

It is unclear whether Carlano ever contacted the school

board to schedule Eichmuller’s road test. Sell testified that

Carlano “contacted the place to schedule a test” but Sell did

not “know if a date was confirmed.” (Doc. # 36 at 54:3-20).

But Carlano had no memory of whether he had contacted the

school board. (Doc. # 37 at 35:19-36:11). Although Carlano

testified there would be emails and documentation if he had

contacted the school board (Id. at 38:18-40:4, 43:24-44:16),

the County has not presented such documentation. And,

according to Eichmuller, he “was never advised by [] Carlano

or anyone at the County that [his] Class A CDL road exam was

scheduled.” (Doc. # 44-2 at 2).

On February 27, 2019, Eichmuller “suffered injuries to

[his] head, neck, knees, elbows and forearms when [he] fell

from a ladder and struck [his] head on a pipe and [his] knees,

elbows and forearms on the ground while performing [his] job

duties for the County.” (Doc. # 44-2 at 2). As required by

the County and its workers’ compensation administrator, John

Eastern Company, Eichmuller went to an urgent care facility

that day. (Id.). The urgent care provider “released

[Eichmuller] to return to full duty work later the same day.”

(Id.).

Eichmuller “continued to perform [his] full job duties

for the County without any assistance and/or accommodation

from the date of [the] accident (February 27, 2019) through

March 13, 2019.” (Id.). But the assigned workers’

compensation medical provider diagnosed Eichmuller with a

neck sprain on March 14, 2019, and held Eichmuller out from

work. (Id.).

Eichmuller was released to return to work with a light

duty restriction on March 28, 2019. (Id.). According to

Eichmuller, he was advised by the County that he “was not

eligible to return to [the] Skilled Trades Worker II position”

because of his medical restrictions. (Id. at 3). Eichmuller

avers that, despite the medical restrictions on lifting, he

“was still physically able to perform the lifting/moving

requirements” of his job, as well as all of the other duties

of his job. (Id. at 2).

Additionally, the County told Eichmuller that there was

no light duty work available. (Id. at 3). Indeed, Sell

testified that the County did not have any light duty

assignments available and, as a result, Eichmuller remained

out on leave. (Doc. # 36 at 44:16-45:2). However, the workers’

compensation provider, Johns Eastern, stated in a letter

dated March 28, 2019, that the County “can accommodate light

or sedentary duty” and “has work available.” (Doc. # 42 at

Ex. 14 at 2). And Kimberly Parsons, a benefits specialist

with the County, testified that the County informs Johns

Eastern if it has light duty or sedentary work available for

an employee. (Doc. # 42 at 49:10-51:2).

On March 7, 2019, Eichmuller had emailed various County

employees, providing a description of his accident and

expressing dissatisfaction with how his supervisor, Carlano,

handled his accident and the workers’ compensation process.

(Doc. # 36 at Ex. 29 at 3). Later, while he was out on leave,

Eichmuller complained to the County on April 30, 2019, about

having to see the medical providers selected by the workers’

compensation provider. (Doc. # 44-2 at 3). He asked the County

for permission to be treated by his own primary care physician

instead, but the County told him that he had to continue

seeing the medical providers assigned by the workers’

compensation company. (Id.).

Because he was out on workers’ compensation leave,

Eichmuller’s probationary period — which was originally set

to end on March 17, 2019 — was extended. (Doc. # 36 at 38:25-

39:13; Doc. # 36 at Ex. 14). It is the County’s policy that,

when an employee goes out on leave, his probationary period

is paused or tolled. (Doc. # 40 at 7:12-20, 13:15-14:12). As

of May 20, 2019, Eichmuller was still on probation. (Doc. #

36 at 65:8-15; Doc. # 41 at 41:3-5).

On May 20, 2019, Eichmuller’s employment was terminated.

(Doc. # 36 at Ex. 19). The termination letter is titled

“Notice of Unsuccessful Probationary Period” and states that

the County “has elected to exercise its option to terminate

your employment.” (Id.). Sell testified that the sole reason

Eichmuller was terminated was because he did not obtain a

Class A CDL during the first six months of his employment.

(Doc. # 36 at 33:17-34:3, 35:14-19).

It is undisputed that Eichmuller never obtained his

Class A CDL license during his employment and never requested

an extension of time to do so. (Doc. # 35 at 22:12-14, 45:13-

17). Yet, at one point during his deposition, Sell agreed

that the language of Eichmuller’s employment letter meant

that Eichmuller “needed to get a Class A CDL within his

probationary period.” (Doc. # 36 at 20:17-23). Similarly,

Sherry Ball — a human resources business partner for the

County — testified that it was her understanding that an

employee in Eichmuller’s position only had to obtain his CDL

license by the time his probation had ended. (Doc. # 41-1 at

6:5-9, 29:24-30:2, 31:20-32:3). Nevertheless, Eichmuller was

fired while still on probation. (Doc. # 36 at 65:8-15; Doc.

# 41 at 41:3-5). At the time of his termination, Eichmuller’s

Class A CDL permit was still valid and it did not expire until

July 2019. (Doc. # 44-2 at 2). Carlano testified that

Eichmuller would be able to perform his job duties with a

Class A CDL permit. (Doc. # 35 at 14:7-9).

Additionally, based on a chart created by the County, it

appears that multiple other Skilled Trade Workers were not

fired for failing to obtain Class A CDL licenses within six

months of their hire date. (Doc. # 44-6). And Sell admitted

that Eichmuller is the only Skilled Trades Worker who was

terminated for not having a Class A CDL license, let alone

terminated for that while on probation. (Doc. # 36 at 44:5-

14).

Eichmuller initiated this action against the County on

January 7, 2020, asserting claims for disability

discrimination under the Americans with Disabilities Act

(ADA) and the Florida Civil Rights Act (FCRA) (Count I) and

workers’ compensation retaliation in violation of Florida

Statute § 440.205 (Count II). (Doc. # 1). The County filed

its answer on February 4, 2020. (Doc. # 10). The case then

proceeded through discovery.

The County now moves for summary judgment on all claims.

(Doc. # 38). Eichmuller has responded (Doc. # 44), and the

Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

The County seeks summary judgment on all of Eichmuller’s

claims. (Doc. # 38). But the Court finds that genuine issues

of material fact preclude summary judgment on any claim.

A. Disability Discrimination Claims

Eichmuller brought Count I for disability discrimination

under both the ADA and the FCRA. “Given the parallel structure

of the statutes, this Court analyzes state-law disability

discrimination claims under the FCRA using the same framework

as it does for claims made under the federal” ADA. D’Onofrio

v. Costco Wholesale Corp., 964 F.3d 1014, 1021 (11th Cir.

2020).

In order to succeed on a discrimination claim,

Eichmuller must show that: “(1) he is disabled; (2) he was a

qualified individual at the relevant time . . . ; and (3) he

was discriminated against [] because of his disability.”

Scott v. Shoe Show, Inc., 38 F. Supp. 3d 1343, 1359 (N.D. Ga.

2014)(citation omitted). A qualified individual is a person

“who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8).

The County concedes that Eichmuller qualifies as

disabled and was fired. However, it argues that Eichmuller

was not a “qualified individual” because he had not obtained

his Class A CDL license. (Doc. # 38 at 9-10); see Aponte v.

Brown & Brown of Fla., Inc., 806 F. App’x 824, 829-30 (11th

Cir. 2020)(holding in the context of FMLA claims that the

plaintiff insurance sales associate was not qualified for his

position because he never passed a required licensing exam

during his employment and that his termination for failing to

pass the exam was not pretextual).

The problem with this argument is that there is evidence

Eichmuller was still on probation and on leave at the time he

was fired. (Doc. # 36 at 65:8-15; Doc. # 41 at 41:3-5; Doc.

# 44-2 at 2). The six-month deadline to obtain a Class A CDL

was not a strict time limit, as the County admits it tolled

Eichmuller’s probationary period and time to obtain the CDL

because Eichmuller went out on workers’ compensation leave.

See (Doc. # 38 at 7)(stating that the extension of

Eichmuller’s probationary period “toll[ed] the time for

[Eichmuller] to obtain his Class A CDL”). Given the testimony

of Sell and Ball (Doc. # 36 at 20:17-23; Doc. # 41-1 at 29:24-

30:2, 31:20-32:3), a reasonable jury could conclude that

Eichmuller was only required to obtain his Class A CDL by the

end of his probationary period.

Yet, Eichmuller was still on probation and on leave when

he was fired. (Doc. # 36 at 65:8-15; Doc. # 41 at 41:3-5;

Doc. # 38 at 7). Thus, taking all reasonable inferences in

Eichmuller’s favor, the County had decided to toll the

deadline to obtain his Class A CDL while he was on probation,

but then terminated him while he was still on probation.

Furthermore, Eichmuller’s supervisor, Carlano,

testified that Eichmuller would be able to perform all the

essential functions of his job with his temporary Class A CDL

permit. (Doc. # 35 at 14:7-9). And Eichmuller averred that,

despite his medical restrictions on lifting, he was able to

perform all the essential functions of his job without an

accommodation. (Doc. # 44-2 at 2). Finally, Eichmuller has

presented evidence that — taken in the light most favorable

to him — suggests multiple non-disabled Skilled Trades

Workers failed to obtain Class A CDL licenses within six

months of being hired, yet were not fired (Doc. # 4-6),

raising an inference of discrimination. All this creates a

genuine dispute as to whether Eichmuller was qualified for

his position at the time he was fired.

Next, while the County has presented Eichmuller’s lack

of a Class A CDL license as a non-discriminatory reason for

his firing, there is a genuine dispute of material fact

regarding pretext. “A legitimate nondiscriminatory reason

proffered by the employer is not a pretext for prohibited

conduct unless it is shown that the reason was false and that

the real reason was impermissible retaliation or

discrimination.” Worley v. City of Lilburn, 408 F. App’x 248,

251 (11th Cir. 2011)(citing St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993)). “If the proffered reason is one

that might motivate a reasonable employer, a plaintiff cannot

merely recast the reason, but must meet it ‘head on and rebut

it.’” Id. (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000)). Thus, to show pretext, an employee must

demonstrate “such weaknesses, implausibilities,

incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.” McCann v.

Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008)(quoting Cooper

v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)).

Again, Eichmuller has presented evidence suggesting that

multiple non-disabled Skilled Trades Workers failed to obtain

Class A CDL licenses within six months of being hired, yet

were not fired for this. (Doc. # 44-6). There is also

testimony that no other Skilled Trades Worker was terminated

for not obtaining a CDL, let alone while they were on

probation. (Doc. # 36 at 44:5-14). Additionally, despite

Eichmuller’s reporting to Carlano that he was ready to take

the road test and the issuance of a check by the County, there

is no documentary evidence that the County ever scheduled a

road test for Eichmuller.

Viewing the evidence in the light most favorable to

Eichmuller, a reasonable jury could conclude that the County

never scheduled Eichmuller’s road test. A reasonable jury

could interpret the County’s failure to schedule the road

test — which it knew was a necessary step to Eichmuller

obtaining his Class A CDL — as evidence that the County’s

firing of Eichmuller for not obtaining such license was

pretextual. Finally, as mentioned before, a reasonable jury

could determine that Eichmuller had additional time left in

which to take the road test because he was still on probation

when the County terminated him for failing to obtain his Class

A CDL.

In short, genuine issues of material fact preclude the

entry of summary judgment on behalf of the County.

Accordingly, the Motion is denied as to Count I.

B. Workers’ Compensation Retaliation Claim

In Count II, Eichmuller asserts a claim for workers’

compensation retaliation under Florida Statute § 440.205.

(Doc. # 1 at 6). Section 440.205 provides that: “No employer

shall discharge, threaten to discharge, intimidate, or coerce

any employee by reason of such employee’s valid claim for

compensation or attempt to claim compensation under the

Workers’ Compensation Law.” Fla. Stat. § 440.205.

“A [Section] 440.205 claim has the same elements as

employment retaliation claims under federal law: (1) the

employee engaged in statutorily protected activity, (2) was

subjected to an adverse employment action, and (3) there was

a causal relationship between the protected activity and the

adverse employment action.” Juback v. Michaels Stores, Inc.,

143 F. Supp. 3d 1195, 1203 (M.D. Fla. 2015). “Such claims are

subject to the burden-shifting framework set out in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 [] (1973), under

which the plaintiff must come forward with a prima facie

case.” Id. “The burden then shifts to the defendant to

articulate a non-discriminatory reason for the adverse

action, and if that burden is met, the plaintiff must

demonstrate that the defendant’s reason was pretextual.” Id.

The County concedes that Eichmuller has established the

first two elements of his prima facie case — protected

activity and an adverse employment action. (Doc. # 38 at 15).

But the County argues that Eichmuller cannot show causation

based on the temporal proximity between his workers’

compensation claim in late February 2019 and his termination

on May 20, 2019. (Id. at 15-17); see Higdon v. Jackson, 393

F.3d 1211, 1221 (11th Cir. 2004)(“By itself, the three month

period between the September 29 letter and the December 31

incident does not allow a reasonable inference of a causal

relation between the protected expression and the adverse

action.”).

The Court disagrees with the County. First, while

temporal proximity of nearly three months between protected

activity and an adverse employment action may not be enough

on its own, Eichmuller has presented other evidence as to

causation. There is a genuine dispute over whether there was

light duty work available when Eichmuller was released to

light duty. If there was light duty work available as Johns

Eastern stated in a letter (Doc. # 42 at Ex. 14 at 2), then

the County’s denying the availability of such work and keeping

Eichmuller out on leave could support an inference of

retaliation. Furthermore, throughout the workers’

compensation process, Eichmuller had made his dissatisfaction

with the County and his supervisor’s handling of his workers’

compensation claim known. (Doc. # 44-2 at 3; Doc. # 36 at Ex.

29 at 3). Indeed, Eichmuller complained to the County on April

30, 2019 — about three weeks before he was terminated — about

having to see the medical providers selected by the workers’

compensation provider. (Doc. # 44-2 at 3). Taken together,

Eichmuller has raised a genuine issue as to causation and,

thus, established a prima facie case. See Thomas v.

CVS/Pharmacy, 336 F. App’x 913, 915 (11th Cir. 2009)(“The

causation element is to be construed broadly, so that the

plaintiff need only prove that the protected activity and the

adverse action are not completely unrelated.”).

The County has presented a legitimate, non-retaliatory

reason for Eichmuller’s termination — his failure to obtain

a Class A CDL license. But, for the same reasons related to

the discrimination claims, Eichmuller has shown a genuine

issue of material fact regarding pretext. That is, a

reasonable jury could believe that the purported reason for

Eichmuller’s termination — his failure to obtain a Class A

CDL — was false because he was still on probation at that

time. A jury could also conclude that Eichmuller’s making a

workers’ compensation claim (and being out on leave as a

result) was the real reason for his termination.

For this reason, the Motion is denied as to Count II.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

Defendant Sarasota County Government’s Motion for

Summary Judgment (Doc. # 38) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this 8th

day of January, 2020.

fan fr. Munahy (noiyh

VIR! IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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