Hernandez v. Palm Beach Cnty. Bd. of Cnty. Comm'rs

• Decision Date: 29 September 2021
• Docket Number: 20-80075-CIV-ALTMAN/Reinhart
• Parties: VICTOR HERNANDEZ, Plaintiff, v. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant.
• Court: U.S. District Court — Southern District of Florida

VICTOR HERNANDEZ, Plaintiff, v. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant.

No. 20-80075-CIV-ALTMAN/Reinhart

United States District Court, S.D. Florida

September 29, 2021

ORDER GRANTING SUMMARY JUDGMENT

ROY K ALTMAN UNITED STATES DISTRICT JUDGE

The Plaintiff, Victor Hernandez, is suing his former employer the Palm Beach County Board of County Commissioners, for disability discrimination. But the relevant facts suggest that this case has nothing to do with discrimination. To the contrary, on Hernandez's own telling, the backdrop of this case is an age-old love triangle (or perhaps a rhombus) Hernandez and his co-worker swapped romantic partners, causing animosity between the two and impelling their colleagues to choose sides. Though undoubtedly unpleasant, this just isn't the kind of discrimination that's actionable under either the Americans with Disabilities Act or the Florida Civil Rights Act.

Meanwhile, Hernandez indisputably failed to perform his job on multiple occasions. His employer, the County, responded as one might expect-by reprimanding him and recommending counseling. But, because there's no evidence that any of the complained-of personnel actions stemmed from the County's desire to discriminate against him based on any perceived disability, the County's Motion for Summary Judgment ("Motion") pCF No. 37] is GRANTED.

The Facts

Hernandez began working for the County's Fire Rescue Department as an emergency medical technician firefighter in 2008. See Defendant's Statement of Material Facts in Support of Motion for Final Summary Judgment ("Def SOF") [ECF No. 38] ¶ 2.^[1] He was promoted to officer lieutenant firefighter in 2014 and remained employed with the County until November 1, 2019, when he resigned. Id. ¶¶ 3-i.

I. The Work Environment

Hernandez maintains that he was subjected to a "hostile work environment" because of his relationship with a co-worker's former spouse. See Plaintiffs Response to Defendant's Statement of Material Facts ("PL SOF") [ECF No. 41] ¶ 45. In 2017, Hernandez began dating Rachel Norman, the ex-wife of a co-worker, Alex Herrera. See Def. SOF ¶¶ 48-49. At the time, Herrera was dating Hernandez's ex-girlfriend, Nicole Ackerman. Id. ¶ 48. Hernandez says that the two-Herrera and Ackerman-perpetrated a "smear campaign" by circulating "compromising pictures" to Hernandez's supervisors. Id. ¶ 48.^[2] Herrera also sent Hernandez a text message "holding up a . .. Norwegian Cruise Line towel with him sticking up the middle finger," because Ackerman "knew [he] liked those beach towels." Hernandez Dep. [ECF No. 38-1] at 76:9-25.

Hernandez testified that some of his co-workers were friends with Herrera, and that those coworkers tried to "make his job more difficult" because of his relationship with Herrera's ex-wife. Id. ¶¶ 49-56. He points, for instance, to one of Herrera's Facebook posts-about Hernandez's relationship with Norman-that some of his co-workers commented on, saying that, while the comments were not "discriminatory," they were "offensive." Hernandez Dep. At 73:23-75:11. Hernandez also complains about a flyer, posted at work, that read: "Victor Hernandez -Arrested and beaten by cops. Slept with out brothers wife." Def. SOF ¶ 56 (errors in original).

In his Amended EEOC Complaint, Hernandez described these events this way:

I was the victim of a smear campaign involving my ex-girlfriend (Nicole Ackerman) and current girlfriend of my fellow co-worker, Lt. Alejandro Herrera, where Ms. Ackerman and Lt. Herrera both anonymously sent allegedly "compromising" pictures to my supervisors with the hopes of getting me fired as a fire fighter and to end my career because Ackerman and I used to date and she was vengeful. However, the photos were deemed inconclusive, and I have been unfairly treated, threatened, mocked by my superiors ever since, and I have been sent to a mandated therapist, weekly, ever since even though the therapist has stated that there is no reason for me to be there. For the first Ten [sic] years of my employment I have received excellent yearly evaluations and was without incident requiring a write up. At the time this smear campaign was under investigation, I was under enormous stress and took leave to alleviate the stressful work environment and thereafter is when I was transferred to a new station assignment and started to receive multiple written reprimands, four in total, from Chief Gaffney that lead [sic] to his ultimate recommendation of dismissal as a firefighter.

Amended Charge of Discrimination ("Amended EEOC Complaint") [ECF No. 17-1] at 1. In March 2018, Hernandez decided to go on Family and Medical Leave Act ("FMLA") leave because of the "harassment" his relationship with Norman had subjected him to-harassment that (Hernandez felt) his superiors weren't handling appropriately. See Hernandez Dep. at 88:11-13, 160:1-161:16.

II. Employment Actions

During his time with the County's Fire Rescue Department, Hernandez violated several Department policies and, in some cases, was subjected to discipline. Def. SOF ¶¶ 18-47. The Fire Rescue Department has neutral disciplinary guidelines, which (depending on the type and frequency of the employee's violation) outline the kind of disciplinary action that should be imposed. Id. ¶¶ 16- 17.

Before we get to the violations, though, we need to untangle the web of relationships that (Hernandez believes) led to the employment actions against him. As relevant here, Matthew Gaffney was the Fire Rescue Department's District Chief; Jason Wasielewski was the Battalion Chief who supervised Hernandez for about one year; and Brian Mulligan was the Battalion Chief who supervised Hernandez from time to time. Id. ¶¶ 10, 12-14. Hernandez has alleged that Herrera (whose ex-wife, recall, Hernandez was dating) was "close friends" with Division Chief Chris Hoch and that, because of that friendship, Hoch teamed up with the staffing officer to "place [Hernandez] in a battalion where more harassment could take place under the supervision of his friend Chief Gaffney." PL SOF ¶ 45. In other words, in Hernandez's telling, the Fire Rescue Department brought disciplinary actions against him as retribution for his frowned-upon relationship with Norman. See Hernandez Dep. at 178:5-7 ("I feel like I was put to work under Chief Gaffney by Hoch to proceed [sic] the nonstop harassment and retaliation."). How did it do this? Well, according to Hernandez, by allowing Herrera to petition Hoch to place Hernandez under the supervision of District Chief Gaffney who, though he apparently had no relationship with Herrera, see Matthew Gaffney Aff. [ECF No. 38-5] ¶ 5, was willing to torture Hernandez on Herrera's behalf.

A. The 2017 Violations

Hernandez was cited for two violations in 2017. First, on April 5, 2017, the County issued Hernandez a Notification and Acknowledgment of Violation of Rules and Regulations ("NOV") for backing up a rescue truck without a required backer. Def. SOF ¶ 18. While Hernandez was aware of this requirement, he chose not to use a backer because he felt it would be safer for his crew to stay in the vehicle. PL SOF ¶ 18. Perhaps predictably, as he backed up the rescue vehicle, he was struck by another car. See Hernandez Dep. at 41:13-23. Second, on May 5, 2017, the County issued Hernandez an NOV because he failed to timely complete his annual physical and fitness assessment. See Def. SOF ¶ 19. Hernandez concedes that he failed to fulfill this requirement. See Hernandez Dep. at 44:21-5:4.

B. The Welfare Check

The next violation occurred in January 2018. After Hernandez transferred to a new unit, he wanted to take some vacation-a request that had been approved by his prior team. PL SOF ¶ 20. So, in early January, Hernandez asked to be relieved of the 24-hour shift that had been scheduled for Monday, January 8, 2018. Id. But-the parties agree-Battalion Chief Mulligan granted Hernandez leave for only 12 of those 24 hours. Id.; Def. SOF ¶24. The parties disagree aboutwhich 12-hour shift Mulligan excused him from. Hernandez says that he was given the first 12-hour shift off, while the County maintains that Mulligan excused him from the second shift. Compare PL SOF ¶ 21 (asserting that Hernandez had been given the first shift off) with Def. SOF ¶ 21 (averring that Hernandez had been given the second shift off). Here's Hernandez's description of what happened:

So during that process I had - I had asked for vacation time for that time, but obviously they moved my shift. So I no longer worked that day, but I also worked a day that I was supposed to be off.

So I went to Chief Mulligan and asked him for the time off. He said that he will look into it - he said that he will look into it to see if I can get the time off and I advised him per our policy - per our County policy that if the County moves you, moves your shift, they have to give you the vacation time no matter what, even if they have to hire overtime or whatever the case may be.

Hernandez Dep. at 103:1-21.^[3] Hernandez testified both that Mulligan permitted him to take only 12 hours of vacation (rather than 24) and that Mulligan specifically "told [Hernandez] he was giving [him] the first 12 hours" off. Id. at 121:6-10; see also PL SOF ¶ 21 (alleging that Hernandez was given the first 12 hours off). Hernandez claims that Mulligan did this for a "malicious purpose"-because "he's under the supervision of Chief Gaffney and Chief Wasielewski." Hernandez Dep. at 119:20-21.^[4]

In any event, Hernandez didn't show up for the first 12-hour shift-nor could he be reached. Def. SOF ¶ 25. The Department called him multiple times and left two voicemails-all without answer. Hernandez Dep. at 106:15-107:23. Hernandez says that he didn't answer those calls because he...