Eichmuller v. Sarasota County Government

Filing 45

ORDER: Defendant Sarasota County Government's Motion for Summary Judgment (Doc. # 38) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 1/8/2021. (DMD)

Case 8:20-cv-00047-VMC-SPF Document 45 Filed 01/08/21 Page 1 of 19 PageID 1353

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).

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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 sixmonth 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

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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, 37:640:1; 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
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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
4

the

assigned

workers’

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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).

testified

have

that

the

County

did

not

Indeed,

any

light

Sell
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

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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 38:2539:13; 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).

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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, 45:1317). 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
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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 44:514).
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.

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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
9

must

then

‘go

beyond

the

Case 8:20-cv-00047-VMC-SPF Document 45 Filed 01/08/21 Page 10 of 19 PageID 1362

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.
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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
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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.

Eichmuller’s

#

38

at

7)(stating

probationary

period

that

the

“toll[ed]

extension
the

time

of
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 29:2430:2, 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

12

had

decided

to

toll

the

Case 8:20-cv-00047-VMC-SPF Document 45 Filed 01/08/21 Page 13 of 19 PageID 1365

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
13

retaliation

or

Case 8:20-cv-00047-VMC-SPF Document 45 Filed 01/08/21 Page 14 of 19 PageID 1366

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

14

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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
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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

action,

and

non-discriminatory
if

that

burden

is

reason
met,

for

the

the

adverse

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
16

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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

retaliation.

on

leave

could

Furthermore,

support

throughout

an

inference
the

of

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,
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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

Summary Judgment (Doc. # 38) is DENIED.

18

Motion

for

Case 8:20-cv-00047-VMC-SPF Document 45 Filed 01/08/21 Page 19 of 19 PageID 1371

DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of January, 2020.

19