Lawsuit? What Lawsuit?

Miami Beach police have no idea why the city paid off a victim of alleged gay bashing

"I am more than my HIV diagnosis," De Mola explains. "I don't think I wear my sexuality on my shoulders. I'm a professional person and I do what I'm supposed to do." Personnel records characterize him as a "meticulous" employee whose performance was routinely rated at satisfactory or above, and other county employees describe De Mola as helpful and friendly.

According to Florida law, no one can be forced by an employer to disclose a diagnosis of HIV or AIDS. De Mola told Jenkins he wanted to confer with an attorney about the drug test. After his lover died in 1993, De Mola says, he has not taken a drink or used drugs. Concerned that he had become dependent on alcohol and drugs to deal with the trauma of his lover's illness, he had checked into a confidential drug treatment program for county employees.

Over the next four years De Mola set about reconstructing his life. He stopped partying and began volunteering long hours at the Unity on the Bay church, helping to redecorate the sanctuary and landscape the grounds. He participated in support groups for people with AIDS and regularly attended Alcoholics Anonymous, for which he also did renovations. "If someone is doing drugs, the last thing they are worrying about is completing a paint job for an AA meeting room or a church," De Mola's friend and AA sponsor Marty Lyden comments. Lyden vouches for De Mola's claim to sobriety, saying the two men speak on the phone every few days and see each other regularly.

Jenkins waited a week for De Mola's response. On March 15 he sent him a warning letter: "As a result of your three refusals to submit to the drug/alcohol testing, you leave the department with no alternative but to pursue disciplinary action." He drew up a formal document with a list of county policies De Mola had violated, including insubordination and conduct unbecoming an employee.

Lyden and the Reverend James Trapp from Unity accompanied De Mola to two hearings to discuss the violations. De Mola was initially hopeful that his supervisors would be sympathetic, especially because the criminal charges against him had been dropped on March 29. But the atmosphere was hostile from the start.

Lyden recalls: "It was evident that he was up against a wall and that they were going to shoot him down." Lyden remembers Jenkins had his chair tilted back and his legs propped against the table and barely seemed to listen to De Mola's statement. "The pervasive attitude was that he was guilty even though the charges had been dropped." Jenkins referred a request for an interview to the county's legal department.

On June 3 De Mola learned he had been terminated. Lee Kraftchick, the assistant county attorney who handled the dismissal, says that in the past ten years fewer than fifteen county employees have declined to take the drug test. "As far as I know, everyone who refused the test was terminated. And every one of them had an explanation just as compelling as Mr. De Mola's. It wasn't until the appeal hearing that he started talking about the possibility of revealing his HIV-positive condition. It was an excuse after the fact."

An appeal to another hearing officer was denied. De Mola was "clearly guilty of insubordination," Edward Quigley wrote in denying the appeal, discounting De Mola's worries about revealing his HIV status. "The Appellant is also in direct conflict in keeping good order and discipline within the county organization." Because De Mola was fired for misconduct, he is not entitled to unemployment benefits. Smith is appealing that decision. The attorney says there is a possibility that De Mola was justified in not taking a drug test while he was on disability leave. Last year a state appeals court ruled that someone could not be fired for having refused a drug test after they had signed out for the day.

The dismissal threw De Mola's life into a tailspin. Bills began to pile up. He was unable to meet the mortgage on his condo and was forced to cede part-ownership to an investor who took over the payments. While he had spent fourteen years living with relatively few health complications relating to his HIV, the recent stress caused his T-cell level to plummet. De Mola will have difficulty finding affordable health insurance to replace the policy he had with the county.

After the charges against him were dropped, De Mola sued the City of Miami Beach for engaging in a "long-standing custom, policy, and practice of permitting its officers to assault, abuse, harass, and intimidate gay persons." The city agreed to pay $80,000 to settle the suit out of court. The assistant city attorney who handled the case declined to comment. "The City of Miami Beach does not have a habit of paying out claims unless they find them to be well merited," said attorney Jeffrey Blaker, who represented De Mola in the suit. The settlement has enabled De Mola to regain title to his condo and pay his lawyer bills, but he still has been unable to square all the debts he incurred as a result of his arrest, not to mention overcome his feelings of outrage. "I feel I'm a good person, that I treat people with kindness, the way I want to be treated," he says. "I didn't want to be treated differently, I just wanted to be treated fairly."

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