City of Miami v. Hervis

• Decision Date: 16 August 2011
• Docket Number: No. 3D11–442.,3D11–442.
• Citation: 65 So.3d 1110,24 A.D. Cases 1729
• Parties: CITY OF MIAMI, Petitioner,v.Miguel A. HERVIS, Respondent.
• Court: Florida District Court of Appeals

65 So.3d 1110

24 A.D. Cases 1729

CITY OF MIAMI, Petitioner,

v.Miguel A. HERVIS, Respondent.

No. 3D11–442.

District Court of Appeal of Florida, Third District.

July 5, 2011.Rehearing Denied Aug. 16, 2011.

Julie O. Bru, City Attorney, and Diana Vizcaino and John A. Greco, Assistant City Attorneys, for petitioner.Feiler & Leach and Martin E. Leach, for respondent.Before GERSTEN, ROTHENBERG, and SALTER, JJ.ROTHENBERG, J.I. INTRODUCTION

The City of Miami (“City”) seeks certiorari relief from a decision rendered by the Circuit Court for Miami–Dade County, Appellate Division (“Circuit Court”), affirming a final order entered by the Miami–Dade County Commission on Human Rights (“Commission”). The Commission found that the City's police chief, Chief Timoney, engaged in disability discrimination by failing to appoint Miguel A. Hervis (“Lt.Hervis”), who has Parkinson's disease, to serve as a Neighborhood Enhancement Team Commander (“NET Commander”). Because we conclude that the City was denied due process, and the Circuit Court departed from the essential requirements of law resulting in a miscarriage of justice, see Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1095 (Fla.2010); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995), we grant the petition, quash the opinion of the Circuit Court, and remand with directions.

II. FACTUAL AND PROCEDURAL HISTORY

Lt. Hervis has been serving as a police officer with the City since 1988. He was promoted to the rank of sergeant in 1994, and to the rank of lieutenant in 2001. From April to November 2001, he served as the acting Commander in the Strategic Information Unit of the Special Investigations Section, and is currently a Commander in the Domestic Violence Unit. In 2004, Lt. Hervis was diagnosed with Parkinson's disease, and shortly thereafter, symptoms of his condition became evident to his coworkers and superiors, including Chief Timoney. Although Chief Timoney realized that Lt. Hervis' motor skills were impaired, he did not know that Lt. Hervis had Parkinson's disease or what was causing the symptoms he observed. Over the next two years, Chief Timoney observed Lt. Hervis' condition progressively worsen, and by the middle of 2006, Chief Timoney became concerned about Lt. Hervis' fitness for duty and his ability to handle a firearm. Chief Timoney therefore scheduled a meeting with Lt. Hervis and the Chief of Health Services, Deputy Chief Burden, for January 3, 2007, to discuss the situation.¹

At that meeting, Lt. Hervis informed Chief Timoney and Deputy Chief Burden 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. Lt. Hervis contends that at this meeting, Chief Timoney ordered him to submit to a “fitness for duty” examination, but then agreed to permit Lt. Hervis to delay taking the examination until after he had the surgical procedure. Chief Timoney wished Lt. Hervis well and instructed him to follow up with Deputy Chief Burden to inform them of the results of the procedure. Lt. 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 Chief Timoney and Deputy Chief Burden, and while Lt. Hervis was experiencing loss of his motor skills, he requested to be considered for the position of NET Commander. The record reflects that the City's police department has no formal application process for such promotions, which are made solely at the discretion of the Chief of Police, with the approval of the City Manager. Appointments are made based on the individual's work history, recommendations, past performance, and other factors. Recommendations can come from individuals outside of the City of Miami Police Department or internally. But ultimately, the decision rests with the Chief of Police.

The NET Commander position is an executive-level position that is described as requiring independence of action and judgment. 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 Lt. 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, Lt. Hervis' condition substantially improved, and in the summer of 2008, he was cleared for normal duty, with no restrictions. In the interim, on June 15, 2007, Lt. Hervis filed a Notice of Charge of Discrimination (“charge”), alleging disability discrimination with the Commission. Lt. Hervis contended he was passed over for promotion because of his disability, Parkinson's disease. The Commission assigned the investigation of the charge to the Miami–Dade County Equal Opportunity Board (the “Board”).

The Board investigated the charge and issued a Recommended Order on December 29, 2008, finding that Lt. Hervis had presented a prima facie case of employment discrimination. Specifically, the Board found that: (1) the record established that Lt. Hervis was a qualified individual with a disability; (2) although the City has no formal application process for promotions to the position of NET Commander, Lt. Hervis asked to be considered for the position; (3) Lt. Hervis was not promoted to NET Commander; and (4) individuals with similar qualifications, who had no known disability, were promoted to NET Commander positions. The Board recognized the City's legitimate concern regarding Lt. Hervis' ability to perform his job, which requires that he carry a firearm, but found that based on the medical documentation in the record, which indicates that Lt. Hervis was able to perform his duties without restrictions or accommodations, his disability did not pose a direct threat to him or others. Consequently, the Board recommended that Lt. Hervis be promoted to the next available NET Commander position, compensated for the pay differential retroactive to May 2007, with interest, and reimbursed for his reasonable attorney's fees and costs.

Pursuant to Chapter 11A–8 of the Miami–Dade County Code, the City requested a de novo hearing, which was held on June 11, 2009, before a hearing officer. Testifying on behalf of the City were Chief Timoney and Deputy Chief Burden.

The portion of the transcript that was supplied by the Commission, and which was included in the record on appeal,² reflects that Chief Timoney testified that appointments to the position of NET Commander are within his discretion, seniority is only one of the factors he considers, and there were legitimate non-discriminatory reasons why he did not appoint Lt. Hervis to the position of NET Commander. Chief Timoney also testified that he did not consider Lt. Hervis for a NET Commander position because at an important briefing during the Free Trade Area of the Americas (“FTAA”), Lt. Hervis, unlike the officers that conducted the briefings on the two preceding days, performed very poorly. Chief Timoney explained that Lt. Hervis appeared unprepared, confused, and unfamiliar with the facts, and his presentation was “embarrassing.” Based on Lt. Hervis' performance, he insisted that either of the other two officers that had conducted the earlier briefings be assigned to the remaining briefings. Chief Timoney testified that the officers he appointed to the NET Commander positions demonstrated leadership and “stood out” as candidates for the position and went on to explain his experiences and observations of the individuals he promoted to NET Commander positions. Thus, Chief Timoney provided legitimate, non-discriminatory reasons for not appointing Lt. Hervis to the position of NET Commander.

The hearing officer entered his Final Order on July 13, 2009, finding that, although there was no direct evidence of disability discrimination, there was circumstantial evidence that the City discriminated against Lt. Hervis due to his disability. Specifically, the hearing officer found that Chief Timoney admitted that based on Lt. Hervis' symptoms, he questioned whether he was fit for duty as a police officer, and thus the obvious conclusion would be that he would not promote someone he believed was not fit for duty. Chief Timoney testified that he did not promote Lt. Hervis because he had performed so poorly at the FTAA briefing, Lt. Hervis did not dispute this testimony and the Board did not find that Chief Timoney's explanation of why he did not promote Lt. Hervis was a pretext. However, the Commission noted that Lt. Hervis had received “satisfactory evaluations,” which the City failed to refute. Thus, the Commission adopted the Recommended Order submitted by the Board.

The City appealed to the Circuit Court. After the record was prepared by the Commission and provided to the Circuit Court, the City notified the Commission that a transcript of the hearing was not included in the record, and requested from the Commission a copy of the hearing transcript, at its own expense, pursuant to section 11A–28(9)(b) of the Miami–Dade County Code. In response, the Commission sent the City an inaudible tape recording of the proceedings. Thereafter, the City filed a motion with the Circuit Court requesting that it issue an order requiring the Commission to comply with its obligation to provide a transcript of the hearing. The Circuit Court granted the City's motion. The Commission, however, provided the Circuit Court with an incomplete transcript, which omitted a portion of Chief Timoney's testimony...