Court Overturns Equal Rights Commission, Finds No Discrimination Against Lieutenant With Parkinson’s Disease

Lieutenant Miguel Hervis has been serving as a police officer with the City of Miami, Florida since 1988. He is currently a Commander in the Domestic Violence Unit. In 2004, Hervis was diagnosed with Parkinson’s disease, and shortly thereafter, symptoms of his condition became evident to his coworkers and superiors, including Chief John Timoney. Although Timoney realized that Hervis’ motor skills were impaired, he did not know that Hervis had Parkinson’s disease or what was causing the symptoms he observed.

Over the next two years, Timoney observed Hervis’ condition progressively worsen, and by the middle of 2006, Timoney became concerned about Hervis’ fitness for duty and his ability to handle a firearm. Timoney therefore scheduled a meeting with Hervis and the Chief of Health Services, Deputy Chief Burden, for January 3, 2007, to discuss the situation.

At that meeting, Hervis informed Timoney that he had Parkinson’s disease, admitted he was experiencing difficulties with his motor skills, and told them that he was scheduled to undergo a surgical procedure in a month which he hoped would alleviate some of the symptoms. Hervis eventually had the scheduled procedure, which proved to be a success. Thereafter, he took the fitness-for-duty examination, and was cleared for duty.

In July 2006, prior to meeting with Timoney and while Hervis was experiencing loss of his motor skills, he requested to be considered for the position of Neighborhood Enhancement Team Commander. The NET Commander coordinates police-related services at the neighborhood level and requires the supervision of staff, including officers and community providers; speaking to various audiences about police-related issues; attending homeowner meetings; composing communications; developing operational plans; and responding to natural disasters or other emergencies within the neighborhood.

In December 2006, prior to Hervis undergoing the surgical procedure, three other officers with equal experience and seniority were promoted to the position of NET Commander. After the surgical procedure was performed, Hervis’ condition substantially improved, and in the summer of 2008, he was cleared for normal duty, with no restrictions. In the meantime, Hervis filed a discrimination charge alleging that Timoney’s failure to appoint him to the NET commander position was motivated by discrimination on the basis of Hervis’ Parkinson’s disease.

When Miami-Dade County Equal Opportunity Commission upheld the charge of discrimination, the City appealed. The Florida Court of Appeals overturned the ruling, and found no discrimination.

The problem, the Court held, was that Hervis failed to disprove the validity of Timoney’s explanation for not promoting Hervis. The Court pointed to a key briefing given by Hervis at a planning session for a Free Trade Area of the Americas (FTAA) meeting: “Timoney testified that he observed Hervis’ performance at an FTAA briefing. Unlike the briefings conducted by two other officers on the days preceding Hervis’ briefing, Hervis’ ‘briefing was downright embarrassing. It made no sense.’ Timoney demanded that one of the other two officers conduct the briefing the following day.”

The Court also recited the various reasons Timoney appointed lieutenants other than Hervis to the position of NET commander, describing their performance as “impressive,” “prepared,” and “excellent.” The Court also found important that “Timoney testified that of the 53 lieutenants in the Department, there are over a half dozen with more seniority than Hervis, who, like Hervis, have not been promoted to NET Commander positions. Timoney testified that his decision not to promote Hervis to a NET Commander position had absolutely nothing to do with the fact that Hervis has Parkinson’s disease; rather it was based on his observation of Hervis during his FTAA briefing.”

In the end, it was Hervis’ failure to rebut this evidence that doomed his discrimination claim: “Hervis, who testified at the hearing, did not dispute that he performed poorly at the FTAA briefing or suggest that the other officers appointed to NET Commander positions were unqualified. Thus, he failed to refute that Timoney’s reasons for promoting Officers Fernandez, Herbello, Martin, Jones, and Sanchez were false. Because Hervis failed to meet his burden of proof, the Commission clearly erred in finding disability discrimination, and the Circuit Court departed from the essential requirements of law in affirming the order under review.”

City of Miami v. Hervis, 2011 WL 2652392 (Fla. App. 3 Dist. 2011).

This article appears in the September 2011 issue