STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD C. ASHER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5815

)

BARNETT BANKS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 19, 20, and 21, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Richard Tannenbaum, Esquire

Shea & Tannenbaum

210 Brazilian Avenue, Suite 204 Palm Beach, Florida 33480

For Respondent: James E. Moye, Esquire

Moye, O'Brien, O'Rourke, Hogan & Picket

210 East Pine Street, Suite 710 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent discriminated against Petitioner on the basis of his age and handicap in violation of the Florida Human Rights Act of 1977 and the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On September 14, 1993, Petitioner, Harold Asher (Asher) filed a Petition for Relief from Unlawful Employment Practice with the Human Relations Commission, alleging that Respondent, Barnett Banks, Inc. (BBI), had discriminated against him on the basis of age and handicap. On October 11, 1993, the case was transferred to the Division of Administrative Hearings for assignment to a Hearing Officer. The case was scheduled for hearing on January 18, 1994 and was later rescheduled to be heard on April 19-22, 1994.

Respondent filed a Motion for Sanctions, which was heard at the final hearing. The Motion for Sanctions is DENIED.

At the final hearing Asher testified on his own behalf and presented the testimony of Dr. Michael Ray, Jane Asher, and Edward Angulo. Petitioners' Exhibits 1-23 were admitted into evidence. BBI presented the testimony of Betty

Merini, Edward Angulo, Joan Slaughenhaupt, and William Westland. Respondents' Exhibits 25, 27, 31, 34, 35, 37, 37A, 39, 43, 48, 54, 55, 57, 60, 61, 63, 65,

and 69-73 were admitted into evidence. The parties stipulated to the facts contained in section 5, paragraphs a-k of the Joint Prehearing Stipulation. The parties also stipulated to certain facts relating to Jeff Asher.

The transcript was filed on May 9, 1994. The parties agreed to file proposed recommended orders within ten days of the date of the filing of the transcript. The proposed recommended orders were timely filed. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Harold Asher (Asher), was born on January 13, 1929, and as of April 1, 1992, he was 63 years old.

   
   

2. Respondent, Barnett Banks, Inc. (BBI), is a holding company that owns and controls numerous banks in Florida and Georgia. The banks in Florida owned by BBI are located in three geographical regions: the north region, the central region, and the south region. In the south region there are nine banks: Barnett Bank of Key West, Barnett Bank of South Florida (Miami), Barnett Bank of Broward (Fort Lauderdale), Barnett Bank of Palm Beach County, Barnett Bank of Martin County, Barnett Bank of Treasure Coast, Barnett Bank of Lake Okeechobee, Barnett Bank of Naples, and Barnett Bank of Lee County (Fort Myers). Each bank has branches.

   
   

3. Barnett Banks, Inc. is an employer subject to Section 760.10, Florida Statutes.

   
   

4. Harold Asher was hired by Barnett Bank of Palm Beach County in 1983, at the age of 54 as a loan review officer and was later promoted to Vice President/Loan Review. His job responsibility was to review loans which had been granted by Barnett Bank of Palm Beach County.

   
   

5. A loan review is an evaluation of the portfolio after a loan is made to insure that the loan was properly approved, that the analysis done to support the sources of repayment was adequate, that the loan is collectible, that the risk factors associated with the loan is in line with policy and regulatory standards, and that the loan is properly underwritten. The loan review is memorialized on a line or summary sheet.

   
   

6. While employed by Barnett Bank of Palm Beach County, Asher had several supervisors, including Ken Parrish, Art Kite, James Kammert, Noel Coan, and Martin Streischek.

   
   

7. Barnett Bank of Palm Beach County used a rating system of one to five in evaluating its employees, which equated as follows: 1.0 to 1.49 means fails to meet minimum position accountabilities; 1.5 to 2.49 means with few exceptions, meets position accountabilities; 2.5 to 3.49 means meets position accountabilities; 3.5 to 4.49 means exceeds position accountabilities; and 4.5 to 5.0 means significantly exceeds position accountabilities.

   
   

8. In March, 1988, James Kammert rated Asher's performance as 3.0. On January 1, 1989, Art Kite rated Asher's performance for 1988 as 3.70. In June, 1989, Art Kite rated Asher as meeting or exceeding in the key result areas (KRAs) of Asher's position. On January 1, 1990, Art Kite performed an

   evaluation of Asher's performance for 1989 and rated him 3.45. On January 18, 1991, Neal Coan rated Asher's performance for 1990 as 3.0. While working for Barnett Bank of Palm Beach County, Asher was never disciplined.

   
   

9. Prior to 1991, BBI and its banks had a dual system for loan reviews. Some of the banks such as Barnett Bank of Palm Beach County, had set up loan review sections which operated at the bank level only. The staff of these sections would report directly to the bank. BBI had a loan review section for each of its regions. The BBI regional loan review sections would review loans in each of the banks located in that particular region. In January, 1991 a decision was made by BBI to consolidate the loan reviews at the holding company level. On-site teams were established in Miami, Fort Lauderdale, and Palm Beach. A travel team reviewed loans at all the banks including the banks which had on-site teams.

   
   

10. As a result of the consolidation, the local banks eliminated their loan review departments and the staff comprising those particular departments were terminated from their positions. At the time of the decision to consolidate, Barnett Bank of Palm Beach County's loan review section consisted of one secretary and three loan officers, one of whom was Asher. The three loan officers interviewed for positions with BBI. Asher and Steven Clapp were hired by BBI. Asher was 61 years of age when he was hired by BBI on January 1, 1991, as the on-site manager for Credit Quality Review at the Barnett Bank of Palm Beach County. His office was located on Datura Street in West Palm Beach. Part of Asher's duties included supervising Mr. Clapp.

    
    

11. The BBI on-site manager for Credit Quality Review at Barnett Bank of South Florida (Miami) was Barry Goldberg, who was born on September 24, 1962. The BBI on-site manager for Credit Quality Review at the Barnett Bank of Broward County was Mark Tavoletti, who was born on December 19, 1961.

    
    

12. Although the same methods were used to review loans for BBI as were used to review loans for Barnett Bank of Palm Beach County, there were some changes. Computers were used more at BBI. Instead of traveling to the 45 branches of Barnett Bank of Palm Beach to review loans, Asher received the files through the interoffice mail. BBI loan reviews focused more on a loan instead of the work of the loan officer. Monthly reports were required by BBI. BBI report formats differed from those of Barnett Bank of Palm Beach County. Asher no longer selected the loans to be reviewed. BBI selected the loans using specific criteria established by BBI.

    
    

13. Asher reported to Scott Bechtle. While working with Mr. Bechtle, Asher did not receive any criticism or disciplinary action.

    
    

14. In July, 1991, Edward Angulo (Angulo) took over Mr. Bechtle's position as the Regional Credit Review Director for the south region. Asher, Mr. Goldberg, and Mr. Tavoletti began reporting to Angulo. Angulo's primary duty was to review the line sheets that were generated by the on-site groups and the travel team.

    
    

15. From July, 1991 to the end of December, 1991, Angulo met with Asher approximately three to five times and talked with Asher numerous times on the telephone. Angulo reviewed all the line sheets that were generated by Asher and Clapp during that six-month period. In reviewing the work done by the Palm Beach on-site group, Angulo noted that generally the line sheets did not have sufficient quantifiable information, did not contain information supported by an independent evaluation, and contained deficiencies regarding underwriting. He

    would make comments concerning these problems and call Asher to discuss them. Some times Asher would not provide additional information requested by Angulo or would provide it in an unsatisfactory manner. During the last six months in 1991, Angulo spent more time in connection with the Palm Beach loan reviews than he did with the other loan review teams because of the problems the Palm Beach team was having.

    
    

16. Angulo sat in with Asher during an exit meeting with bank management wherein Asher appeared indecisive and unprepared, forcing Angulo to take over and conduct the meeting in its entirety.

    
    

17. Angulo completed a performance evaluation on Asher for the period 1/91 to 12/91. Asher was evaluated on nine KRAs: 1) supervise staff, 2) analyze specific loans, 3) determine quality of credit analyses, 4) evaluate underwriting standards, 5) insure accuracy of CSS, 6) evaluate overall credit administration, 7) evaluate loan approval process, 8) prepare reports and exit meetings, and 9) train junior officers. Each KRA was weighted and rated on a scale of one to five, with one being the lowest rating and five being the highest.

    
    

18. For KRAs 1, 5, and 9, Asher was rated as 3, which meant that his performance met expectations. For KRAs 2, 3, 7, and 8, Asher received a rating of 2, which stood for approaches expectations. In the KRA concerning evaluating underwriting standards, Asher received a rating of 1, which meant that Asher's performance failed to meet expectations. Angulo noted on the evaluation that Asher needed to improve his performance in the following areas: technical/analytical, independent/inquisitive attitudes, and judgement/decisiveness. Asher's total weighted rating was 2.25, which equates to an overall rating of 2.

    
    

19. At the time of the evaluation, Asher and Angulo understood that Asher's position was a Review Officer III. Asher had been performing the work of a Review Officer III. Accordingly, Angulo evaluated his work using the standards for Review Officer III, and evaluated the work actually performed by Asher. However, at the hearing it was revealed that Asher had been a Review Officer II at the time of his employment with BBI and held that position until his termination.

    
    

20. On or about April 1, 1992, Angulo met with Asher and discussed Asher's performance since January, 1992. Angulo cited a problem that had occurred concerning a review of Southside Investors which had been done by Asher's subordinate, Steven Clapp. Angulo had discussed with Asher several inconsistencies or omissions in the report relating to potential underwriting problems and asked Asher to have the deficiencies cleared up. As of April 1, 1992, the deficiencies had not been resolved.

    
    

21. Angulo also discussed with Asher problems dealing with the adequacy of supervision of report preparation and the conduct of exit meetings with bank management. Deficiencies in these areas had been pointed out in Asher's 1991 annual performance evaluation. Since that evaluation, a monthly report by Steven Clapp had to be amended because of his erroneous conclusion that the bank's overall underwriting and lending practices were inadequate. The incorrect finding was not corrected until a draft of the report was reviewed by the regional office. As the on-site manager, Asher should have reviewed Mr. Clapp's report and caught the error before it was sent to the regional office.

    Angulo also pointed out to Asher that his performance at exit meetings with bank management still lacked decisiveness, resulting in the need for frequent changes in reports.

    
    

22. As a result of the continued deficiencies in Asher's performance since his 1991 performance evaluation, Angulo felt that Asher needed technical training, improvement in supervisory skills, and familiarization with BBI policies and procedures. To assist Asher in reaching an acceptable level of performance, Asher was moved from his on-site manager position to Barnett Banks, Inc.'s Credit Review Office travel team on or about April 1, 1992. There was no decrease in salary, benefits, or pay grade. Additionally, Asher was placed on a 90-day probationary period.

    
    

23. In mid-April, 1992, Asher wrote Ken Veniard, a Senior Vice President, stating that he disagreed with Angulo's evaluation and felt that the negative comments were "based on factors totally unrelated to performance, such as age, personality, or simply the lack of complete information." Asher requested to be considered for a transfer. Veniard received the memorandum on April 29, 1992.

    
    

24. On or about April 1, 1992, Jack Shoben, a credit review officer with BBI since 1989, was moved into the position of on-site manager for Credit Quality Review at the Barnett Bank of Palm Beach County at the Datura Street location. Jack Shoben was born on October 1, 1947, and as of April 1, 1992, he was 44 years old. Angulo chose Shoben as the on-site manager because of Mr. Shoben's qualifications and experience. After Mr. Shoben became on-site manager, the work product from the on-site team at Barnett Bank of Palm Beach County began to improve; thus Angulo did not have to spend as much time on the Palm Beach site as he had when Asher was on-site manager.

    
    

25. William Westland, who was born on October 26, 1927, was Asher's supervisor on the travel team.

    
    

26. During Asher's first two weeks on the travel team, he worked in Broward County. His performance was satisfactory. The third week on the travel team was spent in Miami, where Asher was required to review real estate loans. Mr. Westland noted that Asher needed some training in the real estate loan area.

    
    

27. On May 10, 1992, shortly after Asher returned from Miami, he suffered a brain seizure and was hospitalized for two days. Six weeks after his seizure, Asher returned to work. As a result of Asher's seizure, his doctors prohibited Asher from driving for at least six months and possibly longer and required his work-related travel to be kept to an absolute minimum, which included avoiding long travel trips of any type.

    
    

28. An essential requirement for the position that Asher held on the travel team was that he be able to travel to the different banks in the south region to conduct loan reviews. Asher was aware that extensive travel was a requirement of his job and so advised his doctor by letter dated July 3, 1992.

    
    

29. When Asher returned to work, he was temporarily placed on the on-site review team at Palm Beach under the supervision of Jack Shoben. Steven Clapp who had been at Palm Beach on the on-site review team was transferred to the travel team. Asher's probationary period was extended to August 7, 1992. The temporary placement was to accommodate Asher's non-travel status until December 31, 1992, and after such time Asher's continued employment was contingent upon

    his satisfactory completion of the probationary period and his ability to meet the requirements of all credit review officers of his level, which included travel.

    
    

30. During June 1992 until Mr. Asher's termination, Jeff Asher, his son, often drove Asher to Barnett Bank's offices on Datura Street in West Palm Beach. He also drove him home from that location during the same time. Jeff Asher also drove Asher to and from branch locations within Palm Beach County during the same period.

    
    

31. A memorandum dated July 28, 1992, was sent from Ken Veniard, Angulo's supervisor, to BBI Credit Quality Staff, stating that although BBI was committed to maintain the on-site loan review teams, that all on-site staff would be required to travel and assist the travel team as necessary.

    
    

32. On August 7, 1992, Asher's probationary period lapsed. There was no evaluation of Asher's performance at that time.

    
    

33. In August, 1992, Steven Clapp was transferred to the BBI office in Jacksonville to fill a position for which he had posted. The position on the travel team that Mr. Clapp had filled in Asher's absence was held open for Asher in the event that his travel restrictions would be lifted in January, 1993, thereby enabling him to return to his position on the travel.

    
    

34. In November, 1992, Asher, Sarah Ketchum, Jack Shoben, and Angulo participated in a teleconference, at which time Angulo advised Asher that if Asher's doctor did not approve a full time travel schedule in January, 1993, Asher's employment with BBI would be terminated effective as of December 31, 1992.

    
    

35. On December 28, 1992, Asher visited his doctor, who continued the travel restrictions.

    
    

36. On December 30, 1992, Asher, Jack Shoben, Joan Slaughenhaupt, and Angulo participated in a teleconference. Asher stated that his travel restrictions had not changed. Angulo advised Asher that his employment would be terminated effective December 31 due to his inability to travel.

    
    

37. Mr. Asher's employment ended on December 31, 1992.

    
    

38. On January 1, 1992, the on-site teams in Miami and Fort Lauderdale were each reduced from three to two on-site personnel. The Palm Beach on-site team was reduced to one one-site person, Jack Shoben, who was the only loan review officer there from January 1, 1993 to December 31, 1993. In January, 1994, all on-site positions were eliminated.

    
    

39. Mr. Asher's salary at the time of his termination was $47,339.96 annually.

    
    

40. In the spring of 1993, Asher and his wife went to Huntsville, Alabama, traveling by automobile two days each way. In June, 1993, all Asher's travel restrictions were lifted. Prior to his driving restrictions being lifted, Asher began driving short distances in his neighborhood.

    
    

41. In January, 1994, BBI made an offer of reinstatement to Asher, whereby he would have been reinstated as a Credit Review Officer II on the regional travel team with the same salary, same seniority, and same salary grade level as

    when he was terminated on December 31, 1992. In addition, a procedure was implemented whereby Asher could report directly to Janice Gurny, Director of Human Resources for BBI in the Jacksonville office, any complaints regarding harassment on the part of his supervisors.

    
    

42. Asher received the offer but did not contact anyone at BBI regarding the offer of reinstatement. Asher did not take the offer because it was a Credit Review Officer II position (he was under the impression he was a Credit Review Officer III at the time of his termination); he felt the environment was hostile; and he had his house on the market to sell.

    
    

    CONCLUSIONS OF LAW

    
    

43. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

44. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to:

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

45. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq., (Title VII) School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions in Title VII should be accorded great deference. Pasco County School Board v. Public Employee's Relation Commission, 353 So. 2d 108, 116, (Fla. 1st DCA 1978) and Simmons v. Eastern Airlines, Inc., 10 FALR 6244, 6250 (FCHR 1988).

    
    

46. The United States Supreme Court set forth the procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411

    U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973) and clarified the burden of proof in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.CT 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been the victim of intentional discrimination. Id. 450 U.S. at 252-57, 101 S.Ct. at 1093-95, 67 L.Ed. 2d at 215-217.

47. To establish a prima facie case of age discrimination, Asher must establish: 1) that he is member of protected group; 2) that adverse employment action was taken against him; 3) that he was replaced by a younger person; and

    4) that he was qualified for the position for which he was rejected. Bell v. DeSoto Memorial Hospital, Inc., 7 F.L.W. Fed. 694 (M.D. Fla. 1994).

    
    

48. Asher established a prima facie case of age discrimination; however, BBI established a legitimate, nondiscriminatory reason for placing Asher on the travel team.

    
    

49. In 1991, BBI consolidated the loan review functions and eliminated the local bank loan review teams. Asher was hired by BBI at the age of 61 as the

    on-site manager at the Barnett Bank of Palm Beach County. There were some changes in the loan review procedures that had been used at the local banks, and Asher could no longer select the loans which would be reviewed. Angulo became Asher's supervisor midway during 1991 and reviewed Asher's work. Angulo noted deficiencies in Asher's work and communicated those problems to Asher. At the end of 1991, Angulo evaluated Asher's performance as not meeting the expectations of the job. Angulo discussed the evaluation with Asher; however Asher did not improve in some of the deficient areas. At the end of the first quarter in 1992, Angulo met with Asher and discussed the problems with him.

    Angulo was placed on the travel team in hopes that he would receive assistance from William Westland and others on the travel team in the problem areas. The transfer was not due to Asher's age but rather to Asher's performance problems.

    
    

50. Asher failed to meets its burden to show that the reason for the transfer was merely a pretext for discrimination.

    
    

51. In order to establish a prima facie case of handicap discrimination, Asher must show 1) that he is handicapped; 2) that he is otherwise qualified for the position; and 3) that he was excluded from the position solely because of the handicap. Brand v. Florida Power Corporation, 19 F.L.W. 525 (Fla. 1st DCA 1994).

    
    

52. An individual with a handicap is defined as "one who (i) has a physical or mental impairment which substantially limits one or more of such person's life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 C.F.R. s.1630.2(i). A temporary condition is not a handicap. Paegle v. Department of Interior, 813 F.Supp 61 (D.D.D. 1993).

    
    

53. Asher suffered a brain seizure which resulted in his driving being restricted for at least six months and possibly longer and his work-related travel being kept to a minimum, including avoiding long travel trips. BBI viewed his travel restrictions as a temporary condition and moved him to the on- site team in Palm Beach until December, 1992. If BBI had not viewed his travel restrictions as temporary, it would have terminated Asher in June, 1992. Asher did not view his travel restrictions as a permanent condition. Although it took an additional six months than first anticipated by the doctors for the travel restrictions to be lifted, as of June, 1993, Asher was able to drive and to travel long distances. Accordingly, Asher has failed to establish that he was handicapped.

54. In Paegle, the court discussed the requirement for being a "qualified handicapped person."

    
    

    A `qualified handicapped person' is one who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others. 29 C.F.R. s.1613.702(f). See also Southeastern Community College v. Davis,

    442 U.S. 397, 407, 99 S.Ct. 2361, 2367,

    60 L.Ed.2d 980(1979) ('An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.')

    
    

55. Even if Asher had established that he was handicapped, he failed to establish that he was otherwise qualified to meet all the essential requirements of his job. At the time that Asher suffered his brain seizure he held the position of loan review officer on the travel team. Travel was an essential element of that job. Additionally, in July, 1992, travel was added as a requirement for all loan review officers, including those on the on-site teams. Asher could not perform the travel required by his job.

    
    

56. Asher has failed to establish a prima facie case that BBI discriminate against him on the basis of handicap.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order denying the Petition for Relief.

DONE AND ENTERED this 8th day of June, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5815

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact

1. Paragraph 1: Accepted in substance.

2. Paragraph 2: Accepted.

3. Paragraphs 3: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. The third sentence is accepted to the extent that Petitioner received two letters which advised him of his increase in salary and thanked him for his hard work and professionalism and advised him that the bank was glad that he was on the team.

4. Paragraph 4: Accepted in substance.

5. Paragraph 5: The first three sentences are accepted in substance. The last sentence is accepted to the extent that the methods to review loans were basically the same but rejected to the extent that the only changes were in the format of the loan review reporting process.

6. Paragraphs 6-7: Accepted in substance.

7. Paragraph 8: The third, fourth, and fifth sentences are rejected as constituting argument. The remainder of the paragraph is accepted in substance.

8. Paragraph 9: Rejected as subordinate to the facts actually found.

9. Paragraphs 10-11: Accepted in substance.

10. Paragraph 12: The last sentence is rejected to the extent that it implies that Asher was rated on work for which he was not performing. He was doing the job of a level III but his personnel file reflected that he officially was placed in a level II position. The remainder of the paragraph is accepted in substance.

11. Paragraph 13: Rejected as constituting argument.

12. Paragraphs 14-16: Accepted in substance.

13. Paragraph 17: The first sentence is rejected as recitation of testimony. The remainder of the paragraph is rejected as constituting argument.

14. Paragraph 18: The first, second, sixth, and tenth sentences are rejected as not supported by the greater weight of the evidence. The third, fourth, fifth, eighth and ninth sentences are accepted in substance except as to the reference to the placement on the travel team as a demotion. The seventh sentence is rejected as unnecessary.

15. Paragraph 19: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is accepted. The last sentence is rejected as recitation of testimony.

16. Paragraphs 20-23: Rejected as recitation of testimony and constituting argument.

17. Paragraph 24: Rejected as constituting argument.

18. Paragraph 25: The first, second, third, and fourth sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as not supported by the greater weight of the evidence. The eight sentence is rejected as constituting argument. The ninth sentence is rejected as not supported by the greater weight of the evidence in that the charge against Asher was his failure to catch Mr. Clapp's errors before the report left the Palm Beach office. The last sentence is rejected as irrelevant.

19. Paragraph 26: The first sentence is rejected as subordinate to the facts actually found. The second sentence is rejected as not supported by any evidence. The remainder of the paragraph is accepted in substance.

20. Paragraph 27: Accepted in substance.

21. Paragraph 28: The first, third, and fourth sentences are accepted in substance. The second and fifth sentences are rejected as subordinate to the facts actually found.

22. Paragraph 29: The first sentence is accepted. The remainder of the paragraph is rejected as subordinate to the facts actually found.

23. Paragraph 30: The first sentence is accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found.

24. Paragraph 31: Rejected as mere recitation of testimony.

25. Paragraph 32: Rejected as mere recitation of testimony.

26. Paragraph 33: Rejected as subordinate to the facts actually found.

27. Paragraph 34: Accepted in substance.

28. Paragraph 35: Rejected as subordinate to the facts actually found.

29. Paragraph 36: The first and second sentences are accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found.

30. Paragraph 37: Rejected as constituting argument.

31. Paragraph 38: Rejected as subordinate to the facts actually found.

32. Paragraph 39: Rejected as constituting argument.

33. Paragraph 40: Rejected as subordinate to the facts actually found.

34. Paragraph 41: Accepted.

35. Paragraphs 42: Rejected as subordinate to the facts actually found.

36. Paragraph 43: The first sentence is rejected as not supported by the greater weight of the evidence as it applies to the time period from June, 1992 to June, 1993. The second sentence is accepted. The remainder of the paragraph is accepted in substance.

37. Paragraph 44: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact

1. Paragraph 1: Accepted.

2. Paragraphs 2-13: Accepted in substance.

3. Paragraph 13: Accepted in substance.

4. Paragraph 14: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance.

5. Paragraph 15: Accepted in substance.

6. Paragraph 16: The first two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument.

7. Paragraphs 17-18: Accepted in substance.

8. Paragraph 19: The first sentence is accepted. The remainder of the paragraph is accepted in substance.

9. Paragraph 20: The first sentence is accepted. The remainder of the paragraph is rejected as unnecessary.

10. Paragraphs 21: The sixth sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance.

11. Paragraphs 22-24: Accepted in substance.

12. Paragraph 25: The first sentence is accepted in substance. The third sentence is rejected as not supported by the greater weight of the evidence. The remainder of the paragraph is rejected as subordinate to the facts actually found.

13. Paragraphs 26-27: Accepted in substance.

14. Paragraph 28: The first sentence is accepted in substance. The remainder of the sentence is rejected as subordinate to the facts actually found.

15. Paragraph 29: Accepted in substance.

16. Paragraphs 30-34: Rejected as subordinate to the facts actually found.

17. Paragraph 35-39: Accepted in substance.

COPIES FURNISHED:

James E. Moye, Esquire Patrick J. Kennedy, Esquire

201 East Pine Street, Suite 710 Orlando, Florida 32801

Richard Tannenbaum, Esquire Shea & Tannenbaum

204 Brazilian Avenue, Suite 210 Palm Beach, Florida 33480

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005815

Orders for Case No: 93-005815