12-002177
Kurt G. Mahler vs.
Marion County Board Of County Commissioners
Status: Closed
Recommended Order on Friday, October 12, 2012.
Recommended Order on Friday, October 12, 2012.
1Case No. 12-2177
4STATE OF FLORIDA
7DIVISION OF ADMINISTRATIVE HEARINGS
11KURT G. MAHLER, ) )
16Petitioner, )
18vs. )
20)
21MARION COUNTY BOARD OF COUNTY )
27COMMISSIONERS, )
29RECOMMENDED ORDER )
32Respondent. )
34)
35)
36An administrative hearing was conducted in this case on
45August 9, 2012, in Ocala, Florida, before James H. Peterson,
55III, Administrative Law Judge with the Division of
63Administrative Hearings.
65APPEARANCES
66For Petitioner: Kurt G. Mahler, pro se
733382 Southwest 165th Loop
77Ocala, Florida 34473
80For Respondent: Michael H. Bowling, Esquire
86Bell and Roper, P.A.
902707 East Jefferson Street
94Orlando, Florida 32803
97STATEMENT OF THE ISSUE
101Whether the Marion County Board of County Commissioners
109(County or Respondent) discriminated against Kurt G. Mahler
117(Petitioner) on the basis of Petitioner's disability.
124PRELIMINARY STATEMENT
126On December 3, 2011, Petitioner filed a Charge of
135Discrimination (Complaint) with the Florida Commission on Human
143Relations (the Commission or FCHR) alleging employment
150discrimination by the County. Petitioner marked the boxes
158labeled "Disability/Handicap" and "Retaliation" as the basis for
166the alleged discrimination on the Complaint form. At the
175hearing, however, Petitioner withdrew his claim of retaliation.
183The Complaint was assigned FCHR No. 201200563.
190The Commission investigated the Complaint and on May 18,
1992012, issued a Determination which found No Cause. On that
209same day, the Commission issued a Notice of Determination of No
220Cause (Notice) on the Complaint stating that the Commission has
230determined that there is no reasonable cause to believe that an
241unlawful employment practice occurred. The Notice advised
248Petitioner of his right to file a Petition for Relief for an
260administrative hearing on his Complaint within 35 days.
268Petitioner timely filed a Petition for Relief.
275On June 20, 2012, the Commission filed a Transmittal of
285Petition with the Division of Administrative Hearings (DOAH) for
294assignment of an administrative law judge to conduct an
303administrative hearing.
305Prior to the hearing, Petitioners counsels Motion to
313Withdraw as Counsel for Petitioner was granted. Thereafter,
321Petitioner filed a letter indicating that he wished to withdraw
331his Complaint, but subsequently decided to proceed, and appeared
340at the hearing pro se.
345At the final hearing, Petitioner called three witnesses,
353testified on his own behalf, and offered three exhibits received
363into evidence as Petitioners Exhibits P-1, P-2, and P-3 (a
373composite) without objection. The County presented the
380testimony of three witnesses and offered six exhibits received
389into evidence as Respondents Exhibits R-5 through R-9, and
398R-11.
399The proceedings were recorded and a Transcript was ordered.
408The parties were given 30 days from the filing of the Transcript
420within which to submit their proposed recommended orders. The
429Transcript, consisting of one volume, was filed on August 20,
4392012, and the parties timely filed their respective Proposed
448Recommended Orders, which have been considered in the
456preparation of this Recommended Order.
461FINDINGS OF FACT
4641. Petitioner was first employed by the County from May,
4741997, until September 2006, when he was administratively
482discharged after exhausting of all of his leave time (sick,
492holiday, vacation, and personal) following a motorcycle accident
500on May 3, 2006.
5042. After being cleared by his doctor, Petitioner was
513rehired by the County as a heavy equipment operator on
523November 26, 2006, and he worked for the County in that capacity
535until his termination on June 2, 2011.
5423. The position of heavy equipment operator for the County
552held by Petitioner involved the operation of dump trucks, bucket
562trucks, and other large equipment. The County's heavy equipment
571is often operated in close proximity to pedestrians, bicyclers,
580and traffic, and operation of the heavy equipment in a safe
591manner is essential to the position.
5974. Historically, Petitioner was regarded as a good
605employee with respect to his knowledge, attendance, and effort.
614However, during the two years prior to his termination, there
624were incidences involving safety, judgment, or carelessness that
632ultimately led to the County's decision to terminate
640Petitioner's employment.
6425. On May 17, 2011, Petitioner exited the County vehicle
652he was driving, County truck P-87, when he pulled off the road
664to move a tree limb from the roadway. He exited the vehicle
676without putting it in park. As a result, the truck moved
687forward approximately six feet and hit a power pole.
6966. The accident was reported on a Marion County Incident
706Report that same day. Upon reviewing the report, County Roads
716Superintendent Chad Schindehette, who had just recently been
724hired by the County six days before, reviewed Petitioner's
733personnel file to determine the appropriate discipline to
741recommend.
7427. Review of Petitioner's personnel file revealed that
750Petitioner was still on probation from an accident that occurred
760on February 15, 2011, when Petitioner accidentally drove a
769County boom truck into a 4x4 wooden post of a County fuel bay.
7828. Petitioner's personnel file also indicated a number of
791other disciplinary actions that Petitioner received since his
799rehire in 2006, including a letter of counseling on September 5,
8102007, for disregarding the safety of fellow employees in an
820incident involving spinning tires and mud; a letter of
829counseling on June 4, 2009, for lack of good judgment involving
840a County truck hitting a pole saw that Petitioner was holding; a
852written reprimand on July 14, 2010, regarding abrasiveness with
861co-workers; revocation of Petitioner's safe operator award on
869October 20, 2010, for backing a County truck into another County
880vehicle; and a letter of counseling on April 25, 2011, for
891inattention or carelessness in allowing a trim tractor to run
901out of fuel.
9049. After reviewing Petitioner's personnel file,
910Mr. Schindehette recommended to his supervisor, County Engineer
918Mounir Bouyounes, that Petitioner be terminated. At the time
927that he recommended that Petitioner be terminated,
934Mr. Schindehette was unaware of any medical condition that
943Petitioner might have that would affect his ability to perform
953his job.
95510. As a result of the recommendation to terminate
964Petitioner, Mr. Bouyounes held a meeting on March 26, 2011, with
975Petitioner, Mr. Schindehette, and Petitioner's direct
981supervisor, Vic Pollack, to discuss the facts surrounding the
990recommendation for Petitioner's termination. During that
996meeting, for the first time, Petitioner advised that he believed
1006his medication could be the cause of his accidents and his lack
1018of judgment.
102011. Thereafter, a pre-termination hearing was held on
1028June 2, 2011, attended by Petitioner and Petitioner's
1036supervisors, including County Human Resources Director
1042Drew Adams. During the pre-termination hearing, Petitioner
1049again blamed his past accidents and behavior on his medication.
1059In support, Petitioner presented two letters from doctors
1067suggesting that Petitioner's medication may have caused the
1075incidents. One of the letters indicated that changing
1083Petitioner's medication might resolve the problem in the future.
1092Petitioner asked for two weeks to see if a change in medication
1104might solve his attention problems that he claimed were
1113responsible for his accidents.
111712. Mr. Adams was unaware prior to the June 2, 2011, pre-
1129termination hearing that Petitioner was taking medications which
1137might impact his performance or that Petitioner had any job
1147restrictions as a result of any disability.
115413. After the pre-termination hearing, Mr. Adams checked
1162with the County's Health Clinic Supervisor regarding
1169Petitioner's medical condition and any medical limitations with
1177regard to Petitioner's employment with the County. The most
1186recent work duty status forms for Petitioner, dated February 10,
11962011, and March 5, 2010, indicated that Petitioner could perform
1206his job without restrictions.
121014. Mr. Adams concluded that termination was appropriate.
1218Petitioner's employment with the County was terminated June 2,
12272011.
122815. At all pertinent times, the County had a pre-
1238termination and anti-discrimination policy in effect.
1244Petitioner was aware of these policies. Petitioner, however,
1252did not avail himself of his right, included in these policies,
1263to appeal the decision to terminate his employment.
127116. The decision to terminate Petitioner's employment was
1279consistent with the County's prior termination decisions for
1287employees with similar disciplinary histories with regard to
1295safety.
129617. The evidence showed that the decision to terminate
1305Petitioner's employment was a legitimate, non-discriminatory
1311decision based upon Petitioner's repeated safety violations and
1319disciplinary history. Petitioner did not show that the County's
1328reasons for terminating his employment were mere pretext, or
1337that the County otherwise discriminated against him because of
1346his medical condition.
134918. There is no evidence that the County was aware of
1360Petitioner's claim that his medication may have caused his
1369accident on May 17, 2011, or the adverse incidences documented
1379in his personnel file, prior to Mr. Schindehette's
1387recommendation that Petitioner be terminated.
139219. There is also no evidence that Petitioner ever
1401requested an accommodation based upon his medical condition or
1410reaction to medication prior to the recommendation that he be
1420terminated.
142120. In sum, Petitioner did not show that the County
1431discriminated against him because of his disability.
1438CONCLUSIONS OF LAW
144121. The Division of Administrative Hearings has
1448jurisdiction over the parties and subject matter of this
1457proceeding. See §§ 120.569, 120.57(1), and 760.11(4)(b), Fla.
1465Stat. (2012) 1 / ; see also Fla. Admin. Code R. 60Y-4.016.
147622. The Florida Civil Rights Act of 1992 (the Act) is
1487codified in sections 760.01 through 760.11, Florida Statutes.
1495The Act, as amended, was patterned after Title VII of the
1507Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq. ,
1520as well as the Age Discrimination in Employment Act (ADEA),
153029 U.S.C. § 623. Federal case law interpreting Title VII and
1541the ADEA is applicable to cases arising under the Florida Act.
1552Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st
1565DCA 1996)(citing Fla. Dept of Cmty. Aff. v. Bryant , 586 So. 2d
15771205 (Fla. 1st DCA 1991)).
158223. Section 760.10 provides, in pertinent part:
1589(1) It is an unlawful employment practice
1596for an employer:
1599(a) To discharge or to fail or refuse
1607to hire any individual, or otherwise to
1614discriminate against any individual with
1619respect to compensation, terms, conditions,
1624or privileges of employment, because of such
1631individuals race, color, religion, sex,
1636national origin, age, handicap, or marital
1642status.
1643(b) To limit, segregate, or classify
1649employees or applicants for employment in
1655any way which would deprive or tend to
1663deprive any individual of employment
1668opportunities, or adversely affect any
1673individuals status as an employee, because
1679of such individuals race, color, religion,
1685sex, national origin, age, handicap, or
1691marital status.
169324. As developed in federal cases, a prima facie case of
1704discrimination under Title VII may be established by statistical
1713proof of a pattern of discrimination, or on the basis of direct
1725evidence which, if believed, would prove the existence of
1734discrimination without inference or presumption. Usually,
1740however, direct evidence is lacking and one seeking to prove
1750discrimination must rely on circumstantial evidence of
1757discriminatory intent, using the three-part shifting "burden of
1765proof" pattern established in McDonnell Douglas Corp. v. Green ,
1774411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 1562
1786(11th Cir. 1997).
178925. In this case, Petitioner did not have direct evidence
1799of discrimination. Therefore, the three-part burden of proof
1807pattern developed in McDonnell Douglas Corp. v. Green , 411 U.S.
1817792 (1973), applies. Under that test, first, Petitioner has the
1827burden of proving a prima facie case of discrimination by a
1838preponderance of the evidence. Second, if Petitioner
1845sufficiently establishes a prima facie case, the burden shifts
1854to Respondent to articulate some legitimate, nondiscriminatory
1861reason for its action. Third, if Respondent satisfies this
1870burden, Petitioner has the opportunity to prove by a
1879preponderance of the evidence that the legitimate reasons
1887asserted by Respondent are in fact mere pretext. 411 U.S. at
1898802-04.
189926. To establish a prima facie case of discrimination
1908based on disability, Petitioner must prove by a preponderance of
1918the evidence: (1) that he is a handicapped [or disabled] person
1929within the meaning of subsection 760.10(1)(a); (2) that he is a
1940qualified individual; and (3) that Respondent discriminated
1947against him on the basis of his disability. See Earl v.
1958Mervyns , 207 F.3d 1361, 1365 (11th Cir. 2000); Byrd v. BT Foods,
1970Inc. , 948 So. 2d 921, 925 (Fla. 4th DCA 2007).
198027. Petitioner failed to establish a prima facie case of
1990discrimination based on his disability.
199528. As to the first element, the term handicap in the
2006Florida Civil Rights Act is treated as equivalent to the term
2017disability in the Americans with Disabilities Act. Byrd ,
2025948 So. 2d at 926.
203029. The ADA defines a disability as a physical or
2040mental impairment that substantially limits one or more of the
2050major life activities of such individual; a record of such
2060impairment; or being regarded as having such an impairment.
206942 U.S.C. § 12102(2). Major life activities include
2077functions such as caring for oneself, performing manual tasks,
2086walking, seeing, hearing, speaking, breathing, learning and
2093working. 948 So. 2d at 926 (citing Bragdon v. Abbott ,
210341.31(b)(2)(1997)).
210430. Petitioner presented letters from doctors suggesting
2111that his medication may be the reason for his disciplinary
2121history regarding safety. Although, arguably, that evidence
2128could support a finding that Petitioner is handicapped or
2137disabled within the meaning of the law, Petitioner failed to
2147prove the other two elements required to prove discrimination by
2157failing to show 2) that he is a qualified individual, or
2168(3) that Respondent discriminated against him on the basis of
2178his disability.
218031. In order to show that he is qualified, Petitioner
2191must show that he can perform the essential functions of the
2202job, either with or without reasonable accommodation. McCaw
2210Cellular Commcns of Fla. v. Kwiatek , 763 So. 2d 1063, 1065 (Fla
2222required to reallocate job duties to change the functions of a
2233job. Earl , 207 F.3d at 1367. [T]he duty to accommodate does
2244not require an employer to lower its performance standards,
2253reallocate essential job functions, create new jobs, or reassign
2262disabled employees to positions that are already occupied.
2270Salmon v. Dade Cnty. Sch. Bd. , 4 F. Supp. 2d 1157, 1162 (S.D.
228332. As noted in the Findings of Fact, above, operation of
2294the County's heavy equipment in a safe manner is essential to
2305the position of heavy equipment operator. Respondent need not
2314waive essential elements of a position to accommodate
2322Petitioner. Id.
232433. Instead of supporting a finding that Petitioner was
2333qualified for the job, Petitioner's job performance indicated
2341that he could not meet the essential requirement of operating
2351heavy equipment in a safe manner.
235734. Finally, Petitioner failed to show that Respondent
2365discriminated against him because of his disability. The
2373undisputed testimony showed that the County fired Petitioner
2381because of his repeated safety violations and disciplinary
2389history. There is no evidence that Petitioner's alleged
2397disability played a role in the County's decision.
240535. In fact, there is no evidence that Petitioner even
2415mentioned his alleged disability until after a recommendation
2423for his termination based upon Petitioner's history of
2431carelessness. And the evidence showed that Petitioner did not
2440ask for any accommodation prior to that recommendation.
244836. Petitioner's request for an accommodation was untimely
2456and does not otherwise excuse his past misconduct. Cf. , e.g. ,
2466Hill v. Kan. City Area Transp. Auth. , 181 F.3d 891, 894 (8th
2478Cir. 1999) (request untimely where employee did not request
2487accommodation until she had been caught twice sleeping on the
2497job). Moreover, as in Hill , Petitioner offered no assurance
2506that his requested accommodation would remedy his job
2514performance difficulties. Id .
251837. In sum, Petitioner failed to present a prima facie
2528case. Failure to establish a prima facie case of discrimination
2538ends the inquiry. Cf. Ratliff v. State , 666 So. 2d, 1008, 1013
2550n.6 (Fla. 1st DCA), affd , 679 So. 2d 1183 (Fla. 1996)(same
2561rationale in case regarding racial discrimination).
256738. Even if Petitioner had established a prima facie case,
2577Respondents evidence presented at the final hearing which
2585refutes Petitioners argument that Respondents actions were
2592discriminatory. Respondent provided persuasive evidence that
2598the reasons it terminated Petitioner were legitimate, non-
2606discriminatory reasons based upon Petitioner's repeated safety
2613violations and disciplinary history.
261739. Petitioner otherwise failed to demonstrate, as he must
2626to prevail in his claim, that Respondents proffered reason for
2636firing Petitioner was not the true reason, but merely a pretext
2647for discrimination. Cf. McDonnell Douglas , 411 U.S. at 802-03.
2656RECOMMENDATION
2657Based on the foregoing Findings of Fact and Conclusions of
2667Law, it is
2670RECOMMENDED that the Florida Commission on Human Relations
2678enter a final order dismissing the Complaint and Petition for
2688Relief.
2689DONE AND ENTERED this 12th day of October, 2012, in
2699Tallahassee, Leon County, Florida.
2703S
2704JAMES H. PETERSON, III
2708Administrative Law Judge
2711Division of Administrative Hearings
2715The DeSoto Building
27181230 Apalachee Parkway
2721Tallahassee, Florida 32399-3060
2724(850) 488-9675
2726Fax Filing (850) 921-6847
2730www.doah.state.fl.us
2731Filed with the Clerk of the
2737Division of Administrative Hearings
2741this 12th day of October, 2012.
2747ENDNOTE
27481/ Unless otherwise indicated, all references to statutes or
2757rules are to the current, 2012, versions, which have not been
2768substantively revised since the relevant facts in this case.
2777COPIES FURNISHED :
2780Kurt G. Mahler
27833382 Southwest 165th Loop
2787Ocala, Florida 34473
2790Michael H. Bowling, Esquire
2794Bell and Roper, P.A.
27982707 East Jefferson Street
2802Orlando, Florida 32803
2805Denise Crawford, Agency Clerk
2809Florida Commission on Human Relations
28142009 Apalachee Parkway, Suite 100
2819Tallahassee, Florida 32301
2822Larry Kranert, General Counsel
2826Florida Commission on Human Relations
28312009 Apalachee Parkway, Suite 100
2836Tallahassee, Florida 32301
2839NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2845All parties have the right to submit written exceptions within
285515 days from the date of this Recommended Order. Any exceptions
2866to this Recommended Order should be filed with the agency that
2877will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 01/10/2013
- Proceedings: Agency Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
-
PDF:
- Date: 10/12/2012
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 09/11/2012
- Proceedings: Kurt G. Mahler/Marion County Board of Commissioners Proposed Recommended Order filed.
- Date: 08/20/2012
- Proceedings: Transcript (not available for viewing) filed.
- Date: 08/09/2012
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 07/09/2012
- Proceedings: Danialle Riggins and Riggins Law Firm, PA.'s Motion to Withdraw as Counsel for Kurt G. Mahler filed.
-
PDF:
- Date: 07/09/2012
- Proceedings: Letter to DOAH from K. Mahler requesting to withdraw appeal filed.
-
PDF:
- Date: 07/09/2012
- Proceedings: Letter to Judge Peterson from M. Bowling regarding court reporters filed.
-
PDF:
- Date: 07/03/2012
- Proceedings: Notice of Hearing (hearing set for August 9, 2012; 10:30 a.m.; Ocala, FL).
Case Information
- Judge:
- JAMES H. PETERSON, III
- Date Filed:
- 06/20/2012
- Date Assignment:
- 06/20/2012
- Last Docket Entry:
- 01/10/2013
- Location:
- Ocala, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Michael Harrison Bowling, Esquire
Address of Record -
Violet Denise Crawford, Agency Clerk
Address of Record -
Kurt G. Mahler
Address of Record