Palm Beach County Firefighter Sues Under ADA

A Palm Beach County firefighter has filed suit claiming he is being discriminated against by his superiors on account of a perceived psychological disability.

FF Victor Hernandez filed suit earlier this month in Palm Beach County Circuit Court alleging a violation of the Americans with Disabilities Act. The county had the case removed to federal court last week because of the federal allegations.

The facts are rather unusual, and will be quoted from the complaint to avoid any misunderstandings about exactly what is alleged.

  • Plaintiff started dating Rachael Norman in May, 2017. Rachael Norman is the former spouse of Lt. Alejandro Herrera.
  • Plaintiffs ex-girlfriend, Nicole Ackerman, and Lt. Alejandro Herrera both anonymously sent allegedly “compromising pictures” to Plaintiffs supervisor. However, the pictures were found inconclusive.
  • On January 6, 2018, Plaintiff left his private residence to go out of town.
  • Although the Palm Beach County Fire Rescue had documentation that Plaintiff was on vacation, on January 8, 2018, the Palm Beach County Fire Rescue broke into Plaintiffs residence without verbal or written notice or consent, due to the belief Plaintiff was suicidal, according to Chief Wasielewski and Chief Gaffney.
  • Before this incident, Plaintiff never had suicidal thoughts or tendencies and the breaking and entering into Plaintiffs premises was based on the unfound belief of Plaintiffs suicidal and mental issues.
  • Plaintiff received an email on January 23rd, 2018 regarding disciplinary action for unauthorized absence and “accumulative discipline” although according to the Employee Performance Review Addendum, Plaintiffs overall rating is acceptable and was condemned by EMS Captain Nahas.
  • Plaintiff met with Chief Gaffney, who made several inappropriate comments about Plaintiffs health, referring Plaintiff to the Employee Assistance Program (EAP) for a mental health evaluation.
  • Plaintiff complained to his Union Representative, Joel Briar, that he was being treated unfairly and the conditions were getting worse and worse, causing the investigation to be handled with bias.
  • Chief Gaffney perceives Plaintiff has a mental disability and has acted in a manner to eliminate Plaintiff from his station due to prejudice he has towards mentally disabled individuals.
  • Plaintiff was not suicidal before this incident, however, after the accusations and referrals for mental health evaluations, Plaintiff has become emotionally distressed and acquired suicidal tendencies.
  • Because Plaintiff was perceived to have a mental disability, causing emotional distress and suicidal tendencies. Plaintiff had no choice but to go on FMLA leave.
  • Plaintiff continues to see the FLMA therapist, although his recommendation is that Plaintiff does not need, nor never needed to see a therapist.
  • Any reason proffered by Defendant for Plaintiffs recommendation of dismissal as a firefighter is mere pretext for unlawful discrimination on the basis of his perceived disability; throughout Plaintiffs employment he was able to perform the essential functions of his job duties and responsibilities, and at all relevant times Plaintiff did perform his job at satisfactory or above-satisfactory levels.
  • By the conduct describe above, Defendant has engaged in discrimination against Plaintiff because of Plaintiff s disability and subjected the Plaintiff to disability-based animosity.
  • Such discrimination was based upon the Plaintiffs perceived disability in that Plaintiff would not have been the object of discrimination but for the fact that Plaintiff was perceived as disabled.
  • Defendants conduct complained of herein was willful and in disregard of Plaintiffs protected rights.
  • As a result of Defendant’s actions, as alleged herein, Plaintiff has been deprived of rights, has been exposed to ridicule and embarrassment, and has suffered emotional distress and damage.
  • The actions of the Defendant and/or its agents were willful, wanton, and intentional, and with malice or reckless indifference to the Plaintiffs statutorily protected rights, thus entitling Plaintiff to damages in the form of compensatory and punitive damages pursuant to federal law, to punish the Defendant for its actions and to deter it, and others, from such action in the future.
  • Plaintiff has suffered and will continue to suffer both irreparable Injury and compensable damages as a result of Defendant’s discriminatory practices unless and until this Honorable Court grants relief.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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