12-002177 Kurt G. Mahler vs. Marion County Board Of County Commissioners Status: Closed Recommended Order on Friday, October 12, 2012.

Summary: Petitioner failed to prove his claim of discrimination based on disability.

Case No. 12-2177

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KURT G. MAHLER, ) )

Petitioner, )

vs. )

)

MARION COUNTY BOARD OF COUNTY )

COMMISSIONERS, )

RECOMMENDED ORDER )

Respondent. )

)

)

An administrative hearing was conducted in this case on

August 9, 2012, in Ocala, Florida, before James H. Peterson,

III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kurt G. Mahler, pro se

3382 Southwest 165th Loop

Ocala, Florida 34473

For Respondent: Michael H. Bowling, Esquire

Bell and Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether the Marion County Board of County Commissioners

(County or Respondent) discriminated against Kurt G. Mahler

(Petitioner) on the basis of Petitioner's disability.

PRELIMINARY STATEMENT

On December 3, 2011, Petitioner filed a Charge of

Discrimination (Complaint) with the Florida Commission on Human

Relations (the Commission or FCHR) alleging employment

discrimination by the County. Petitioner marked the boxes

labeled "Disability/Handicap" and "Retaliation" as the basis for

the alleged discrimination on the Complaint form. At the

hearing, however, Petitioner withdrew his claim of retaliation.

The Complaint was assigned FCHR No. 201200563.

The Commission investigated the Complaint and on May 18,

2012, issued a Determination which found “No Cause.” On that

same day, the Commission issued a Notice of Determination of No

Cause (Notice) on the Complaint stating that the Commission “has

determined that there is no reasonable cause to believe that an

unlawful employment practice occurred.” The Notice advised

Petitioner of his right to file a Petition for Relief for an

administrative hearing on his Complaint within 35 days.

Petitioner timely filed a Petition for Relief.

On June 20, 2012, 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.

Prior to the hearing, Petitioner’s counsel’s Motion to

Withdraw as Counsel for Petitioner was granted. Thereafter,

Petitioner filed a letter indicating that he wished to withdraw

his Complaint, but subsequently decided to proceed, and appeared

at the hearing pro se.

At the final hearing, Petitioner called three witnesses,

testified on his own behalf, and offered three exhibits received

into evidence as Petitioner’s Exhibits P-1, P-2, and P-3 (a

composite) without objection. The County presented the

testimony of three witnesses and offered six exhibits received

into evidence as Respondent’s Exhibits R-5 through R-9, and

R-11.

The proceedings were recorded and a Transcript was ordered.

The parties were given 30 days from the filing of the Transcript

within which to submit their proposed recommended orders. The

Transcript, consisting of one volume, was filed on August 20,

2012, and the parties timely filed their respective Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was first employed by the County from May,

1997, until September 2006, when he was administratively

discharged after exhausting of all of his leave time (sick,

holiday, vacation, and personal) following a motorcycle accident

on May 3, 2006.

2. After being cleared by his doctor, Petitioner was

rehired by the County as a heavy equipment operator on

November 26, 2006, and he worked for the County in that capacity

until his termination on June 2, 2011.

3. The position of heavy equipment operator for the County

held by Petitioner involved the operation of dump trucks, bucket

trucks, and other large equipment. The County's heavy equipment

is often operated in close proximity to pedestrians, bicyclers,

and traffic, and operation of the heavy equipment in a safe

manner is essential to the position.

4. Historically, Petitioner was regarded as a good

employee with respect to his knowledge, attendance, and effort.

However, during the two years prior to his termination, there

were incidences involving safety, judgment, or carelessness that

ultimately led to the County's decision to terminate

Petitioner's employment.

5. On May 17, 2011, Petitioner exited the County vehicle

he was driving, County truck P-87, when he pulled off the road

to move a tree limb from the roadway. He exited the vehicle

without putting it in park. As a result, the truck moved

forward approximately six feet and hit a power pole.

6. The accident was reported on a Marion County Incident

Report that same day. Upon reviewing the report, County Roads

Superintendent Chad Schindehette, who had just recently been

hired by the County six days before, reviewed Petitioner's

personnel file to determine the appropriate discipline to

recommend.

7. Review of Petitioner's personnel file revealed that

Petitioner was still on probation from an accident that occurred

on February 15, 2011, when Petitioner accidentally drove a

County boom truck into a 4x4 wooden post of a County fuel bay.

8. Petitioner's personnel file also indicated a number of

other disciplinary actions that Petitioner received since his

rehire in 2006, including a letter of counseling on September 5,

2007, for disregarding the safety of fellow employees in an

incident involving spinning tires and mud; a letter of

counseling on June 4, 2009, for lack of good judgment involving

a County truck hitting a pole saw that Petitioner was holding; a

written reprimand on July 14, 2010, regarding abrasiveness with

co-workers; revocation of Petitioner's safe operator award on

October 20, 2010, for backing a County truck into another County

vehicle; and a letter of counseling on April 25, 2011, for

inattention or carelessness in allowing a trim tractor to run

out of fuel.

9. After reviewing Petitioner's personnel file,

Mr. Schindehette recommended to his supervisor, County Engineer

Mounir Bouyounes, that Petitioner be terminated. At the time

that he recommended that Petitioner be terminated,

Mr. Schindehette was unaware of any medical condition that

Petitioner might have that would affect his ability to perform

his job.

10. As a result of the recommendation to terminate

Petitioner, Mr. Bouyounes held a meeting on March 26, 2011, with

Petitioner, Mr. Schindehette, and Petitioner's direct

supervisor, Vic Pollack, to discuss the facts surrounding the

recommendation for Petitioner's termination. During that

meeting, for the first time, Petitioner advised that he believed

his medication could be the cause of his accidents and his lack

of judgment.

11. Thereafter, a pre-termination hearing was held on

June 2, 2011, attended by Petitioner and Petitioner's

supervisors, including County Human Resources Director

Drew Adams. During the pre-termination hearing, Petitioner

again blamed his past accidents and behavior on his medication.

In support, Petitioner presented two letters from doctors

suggesting that Petitioner's medication may have caused the

incidents. One of the letters indicated that changing

Petitioner's medication might resolve the problem in the future.

Petitioner asked for two weeks to see if a change in medication

might solve his attention problems that he claimed were

responsible for his accidents.

12. Mr. Adams was unaware prior to the June 2, 2011, pre-

termination hearing that Petitioner was taking medications which

might impact his performance or that Petitioner had any job

restrictions as a result of any disability.

13. After the pre-termination hearing, Mr. Adams checked

with the County's Health Clinic Supervisor regarding

Petitioner's medical condition and any medical limitations with

regard to Petitioner's employment with the County. The most

recent work duty status forms for Petitioner, dated February 10,

2011, and March 5, 2010, indicated that Petitioner could perform

his job without restrictions.

14. Mr. Adams concluded that termination was appropriate.

Petitioner's employment with the County was terminated June 2,

2011.

15. At all pertinent times, the County had a pre-

termination and anti-discrimination policy in effect.

Petitioner was aware of these policies. Petitioner, however,

did not avail himself of his right, included in these policies,

to appeal the decision to terminate his employment.

16. The decision to terminate Petitioner's employment was

consistent with the County's prior termination decisions for

employees with similar disciplinary histories with regard to

safety.

17. The evidence showed that the decision to terminate

Petitioner's employment was a legitimate, non-discriminatory

decision based upon Petitioner's repeated safety violations and

disciplinary history. Petitioner did not show that the County's

reasons for terminating his employment were mere pretext, or

that the County otherwise discriminated against him because of

his medical condition.

18. There is no evidence that the County was aware of

Petitioner's claim that his medication may have caused his

accident on May 17, 2011, or the adverse incidences documented

in his personnel file, prior to Mr. Schindehette's

recommendation that Petitioner be terminated.

19. There is also no evidence that Petitioner ever

requested an accommodation based upon his medical condition or

reaction to medication prior to the recommendation that he be

terminated.

20. In sum, Petitioner did not show that the County

discriminated against him because of his disability.

CONCLUSIONS OF LAW

21. 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. (2012) 1 / ; see also Fla. Admin. Code R. 60Y-4.016.

22. The Florida Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, Florida Statutes.

“The Act,” as amended, was patterned after Title VII of the

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

as well as the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 623. Federal case law interpreting Title VII and

the ADEA is applicable to cases arising under the Florida Act.

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996)(citing Fla. Dep’t of Cmty. Aff. v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991)).

23. 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’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

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.

24. As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. Usually,

however, direct evidence is lacking and 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).

25. In this case, Petitioner did not have direct evidence

of discrimination. Therefore, the three-part burden of proof

pattern developed in McDonnell Douglas Corp. v. Green , 411 U.S.

792 (1973), applies. 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. 411 U.S. at

802-04.

26. To establish a prima facie case of discrimination

based on disability, Petitioner must prove by a preponderance of

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

within the meaning of subsection 760.10(1)(a); (2) that he is a

qualified individual; and (3) that Respondent discriminated

against him on the basis of his disability. See Earl v.

Mervyns , 207 F.3d 1361, 1365 (11th Cir. 2000); Byrd v. BT Foods,

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

27. Petitioner failed to establish a prima facie case of

discrimination based on his disability.

28. 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.

29. “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.’” 948 So. 2d at 926 (citing Bragdon v. Abbott ,

41.31(b)(2)(1997)).

30. Petitioner presented letters from doctors suggesting

that his medication may be the reason for his disciplinary

history regarding safety. Although, arguably, that evidence

could support a finding that Petitioner is “handicapped” or

“disabled” within the meaning of the law, Petitioner failed to

prove the other two elements required to prove discrimination by

failing to show 2) that he is a qualified individual, or

(3) that Respondent discriminated against him on the basis of

his disability.

31. In order to show that he is “qualified,” Petitioner

must show that he can perform the essential functions of the

job, either with or without reasonable accommodation. McCaw

Cellular Commc’ns of Fla. v. Kwiatek , 763 So. 2d 1063, 1065 (Fla

required to reallocate job duties to change the functions of a

job. Earl , 207 F.3d at 1367. “[T]he duty to accommodate does

not require an employer to lower its performance standards,

reallocate essential job functions, create new jobs, or reassign

disabled employees to positions that are already occupied.”

Salmon v. Dade Cnty. Sch. Bd. , 4 F. Supp. 2d 1157, 1162 (S.D.

32. As noted in the Findings of Fact, above, operation of

the County's heavy equipment in a safe manner is essential to

the position of heavy equipment operator. Respondent need not

waive essential elements of a position to accommodate

Petitioner. Id.

33. Instead of supporting a finding that Petitioner was

qualified for the job, Petitioner's job performance indicated

that he could not meet the essential requirement of operating

heavy equipment in a safe manner.

34. Finally, Petitioner failed to show that Respondent

discriminated against him because of his disability. The

undisputed testimony showed that the County fired Petitioner

because of his repeated safety violations and disciplinary

history. There is no evidence that Petitioner's alleged

disability played a role in the County's decision.

35. In fact, there is no evidence that Petitioner even

mentioned his alleged disability until after a recommendation

for his termination based upon Petitioner's history of

carelessness. And the evidence showed that Petitioner did not

ask for any accommodation prior to that recommendation.

36. Petitioner's request for an accommodation was untimely

and does not otherwise excuse his past misconduct. Cf. , e.g. ,

Hill v. Kan. City Area Transp. Auth. , 181 F.3d 891, 894 (8th

Cir. 1999) (request untimely where employee did not request

accommodation until she had been caught twice sleeping on the

job). Moreover, as in Hill , Petitioner offered no assurance

that his requested accommodation would remedy his job

performance difficulties. Id .

37. In sum, Petitioner failed to present a prima facie

case. Failure to establish a prima facie case of discrimination

ends the inquiry. Cf. Ratliff v. State , 666 So. 2d, 1008, 1013

n.6 (Fla. 1st DCA), aff’d , 679 So. 2d 1183 (Fla. 1996)(same

rationale in case regarding racial discrimination).

38. Even if Petitioner had established a prima facie case,

Respondent’s evidence presented at the final hearing which

refutes Petitioner’s argument that Respondent’s actions were

discriminatory. Respondent provided persuasive evidence that

the reasons it terminated Petitioner were legitimate, non-

discriminatory reasons based upon Petitioner's repeated safety

violations and disciplinary history.

39. Petitioner otherwise failed to demonstrate, as he must

to prevail in his claim, that Respondent’s proffered reason for

firing Petitioner was not the true reason, but merely a pretext

for discrimination. Cf. McDonnell Douglas , 411 U.S. at 802-03.

RECOMMENDATION

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 the Complaint and Petition for

Relief.

DONE AND ENTERED this 12th day of October, 2012, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of October, 2012.

ENDNOTE

1/ Unless otherwise indicated, all references to statutes or

rules are to the current, 2012, versions, which have not been

substantively revised since the relevant facts in this case.

COPIES FURNISHED :

Kurt G. Mahler

3382 Southwest 165th Loop

Ocala, Florida 34473

Michael H. Bowling, Esquire

Bell and Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 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 agency that

will issue the Final Order in this case.