The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact In July of 2006, Respondent advertised an opening for an Accountant II, position #70557, in its revenue and contracts division. The primary responsibility in the position was accounting for and paying or reimbursing expenses in state programs that were funded through federal money by drawing down the accounts in which the federal funds were maintained. Therefore, among other things, the position required accounting experience and a working knowledge of FLAIR. FLAIR is the computerized accounting and records system used by all state agencies in the State of Florida. The vacant position required significant knowledge and experience in both the accounting codes utilized in FLAIR and the computer screens associated with those codes. Additionally, there was a critical need to immediately fill the position with an experienced person because of the involvement with federal funds and due to the fact that another employee, Deborah Schimmel, was performing the work required in her position, as well as, the work required in the vacant position. In 2006, Petitioner, who is Caucasian and 67 years old, applied for the Accountant II position with Respondent. As part of the application process, Petitioner answered a series of qualifying questions relevant to the vacant position. The questions were used by Respondent to help with preliminary screening of the applicants. Some of the questions involved the applicants’ experience with FLAIR, grants and revenue. Petitioner answered the qualifying questions and indicated he had one year of experience with FLAIR, a college degree in accounting and experience with grants. There were four other applicants for the position. Petitioner did not know the race of any of the other applicants for the position and did not offer any evidence regarding the race of these individuals. Salwa Soliman, the Commission’s Revenue and Contracts Manager, was advised that the Accountant II position was vacant and had been advertised. She was also aware that the position needed to be filled as soon as possible with a person who could perform the accounting and billing duties of that position with little or no training. Ms. Soliman reviewed the applications for the vacant position. Based on a review of his application and qualifying questions, Petitioner was granted an interview because he was a veteran, held a bachelor's degree in accounting, had revenue experience and had experience with FLAIR. On October 13, 2006, Petitioner was interviewed for the position by Ms. Soliman and Ms. Schimmel. During Petitioner's interview, it was clear that Petitioner's experience with revenue related to tax returns and not grants. Likewise, Petitioner's experience with grants was only in writing or applying for grants. He had not billed or disbursed federal money from such grants. More importantly, Petitioner's experience with FLAIR was “view only” experience. “View only” experience or authorization meant that Petitioner was only able to view or look at certain screens but not input data or change the screens in FLAIR. Thus, Petitioner did not have experience with data input to FLAIR and/or the pull-down menus associated with such input. In short, Petitioner’s experience and skills did not relate to the work required in the position at issue. Neither tax experience nor grant writing experience was the type of revenue experience required for the vacant position. Additionally, Petitioner did not have sufficient experience or working knowledge of FLAIR to enable him to fill the position with little or no training. Petitioner was not hired for the position. In all likelihood, Petitioner could have been trained for the position. However, due to the nature of the position, Respondent reasonably wanted to hire a person who could immediately fill it. Indeed, none of the applicants for the position were hired because no person had the necessary working knowledge of FLAIR and grant billing to fill the Accountant II position immediately with little or no training required. There was no evidence that Respondent’s reasons for not hiring Petitioner were unreasonable or a pretext for discriminating against Petitioner. When a batch of applicants does not meet Respondent’s needs for a vacant position, Respondent’s policy was to review any applications for other employment opportunities with Respondent submitted within six months of the closing date of the job announcement for the current vacancy. Because of the critical need to fill the Accounting II position, Ms. Soliman asked that other previously submitted applications be forwarded to her by Respondent’s personnel department. In order to transfer an application from one job posting to another job posting, People’s First, the State’s contractor for some personnel matters, must transfer the previously filed application in its database to the file for the current vacancy. Other than requesting the transfer of the application, Respondent is not involved in the actions necessary to transfer an application to another file for a vacant position. In this case, Respondent’s personnel department requested People’s First to transfer applications from an earlier-filled Accountant II position with Respondent. One of the transferred applications was from Debra Shriver who was 23 years old and Caucasian. For unknown reasons, in the computer process of transferring the application, the date on Ms. Shriver’s application was changed. The evidence was clear that Respondent did not ask for or cause the date on Ms. Shriver’s application to change. In fact, the change in the application’s date was immaterial to Respondent’s criteria or requirements in filling the position at issue here and does not demonstrate any fraud, falsification or misrepresentation on the part of Respondent in filling the position. Based on her application, Ms. Soliman interviewed Ms. Shriver for the vacant position. The evidence was clear that Ms. Shriver had the experience and knowledge being sought and required for the position at issue. She was currently working in the grant billing division in another state agency and had significant experience and working knowledge of FLAIR as it relates to grants and billing. Ms. Soliman had worked with the successful candidate before but they were not personal friends. Ms. Soliman knew that Ms. Shriver was a competent employee. Based on these facts, Ms. Shriver was hired for the vacant position and did not require significant training once she began working in that position. There was no evidence that Ms. Shriver’s selection was based on her race or her age. She was selected based on her qualifications to immediately perform in the position for which she was hired. Likewise, there was no evidence that Petitioner was not hired based on his race, which was the same as Ms. Shriver’s, or his age. Petitioner was not hired because he did not have the experience necessary to enable him to immediately begin performing the duties of the position for which he applied. Finally, there was no evidence that Petitioner’s requirements for selecting a person to fill the vacant position or for selecting Ms. Shriver were unreasonable or a pretext for discrimination against Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that a final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Albert H. Beddy 7281 Sycamore Road Quincy, Florida 32351 Stan M. Warden, Esquire Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner is entitled to an award for attorney's fees for litigating the attorney's fees issue where the appellate court has determined the Petitioner is entitled to attorney's fees and costs under the provisions of Section 120.57(1)(b)10., Florida Statutes. Whether the Petitioner is entitled to a multiplier enhancement to the lodestar in an award of attorney's fees and costs under Section 120.57(1)(b)10., Florida Statutes.
Findings Of Fact In March, 1989, the Respondent, Department of Health and Rehabilitative Services sought bids for 17,500 square feet of office space in central Orlando, for a period of seven years beginning in December, 1989, with two three-year option extensions. Petitioner and two others submitted bids. After committee review, the bid was awarded to another bidder on or about June 26, 1989. Petitioner timely filed his informal and formal bid protests, and the matter was heard at length before the Division of Administrative Hearings in August, 1989. The Hearing Officer found that Petitioner had sustained the burden of proof and demonstrated that the Department had acted arbitrarily and capriciously in the bid process, and recommended that the lease be re-bid. The Secretary for the Department adopted the Recommended Order but also added an additional condition that the lease be re-bid only if necessary. Petitioner appealed to the Fifth District Court of Appeal which sustained the position of the Petitioner and, although disputed by the Department, granted attorney's fees and costs for all stages of the proceedings. This matter was remanded to the Department for re-bidding and to the Division for the determination of the amount of fees and costs to be awarded. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991). The Law Office of Terrence William Ackert represented Petitioner through all stages of the administrative bid protest and appeal pertaining to the Invitation to Bid for 17,500 square feet of professional office space in the central Orlando, Florida area. Petitioner, a long time client of counsel of record, agreed to pay counsel at the rate of one hundred twenty-five Dollars, and later at one hundred thirty-five Dollars, per hour and for legal assistant charges ranging from twenty-five Dollars an hour to sixty Dollars an hour, and for costs. The Petition for Costs and Attorneys' Fees was timely filed on July 19, 1991. The parties were unable to reach a stipulation regarding the amount of reasonable attorney's fees to be awarded. A fair and reasonable fee for attorney and legal assistant time is as follows: For the period: 6/27/89-2/27/90 Trial attorney time...141.9hrs at $125.00hr =$17,737.50 Legal assistant time...66.0hrs at $45/50hr = $2,990.00 Total. $20,736.50 For the period: 2/27/90-6/30/91 Post-hearing appellate attorney time...92.4hrs at $125.00 =$11,550.00 Post-hearing appellate attorney time...50.6hrs at $135.00 = $6,871.50 Total. $18,421.50 Post-hearing appellate time for various legal assistants at $25/35/50/60hr. =$4,980 Total. $23,401.50 For the period: 7/1/91-to present Post-remand attorney time...48.2hrs at $135.00 = $6,489 Post-remand legal assistant time...50.1hrs at $25/35/60hr =$2,013.00 Total. $8,502 Costs expended for hearing, appeal and remand hearing Total. $8,548.10 Total due for reasonable attorneys' fee and costs. $61,188.10 During the administrative appeal, the Respondent vacated space previously leased from Petitioner and the consequent loss of income rendered Petitioner unable to make payments to counsel. Total payments to counsel of record have been limited to $5,785. Petitioner remains liable for all fees and costs, and has been billed regularly for the total due and owing. Challenge of a proposed award of bid by an agency is complicated, difficult and time consuming process because the litigation is focused primarily in the administrative arena, where few attorneys are willing to accept cases of this type. In order to attain a successful result, it required considerable skill by counsel to properly perform the service. Acceptance by counsel of this matter precluded the acceptance of other litigation because of the three stage administrative process in order to secure relief for his client.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of his disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In October 1995, Mr. Meiselman suffered a traumatic brain injury as a result of a serious automobile accident, caused by a drunk driver. Due to the traumatic brain injury, among other things, he suffers from short-term memory loss, seizures, and depression. Because of the short-term memory loss, tasks performed by Mr. Meiselman must be repetitive. Mr. Meiselman’s seizures are mostly petite-mal, not grand-mal, and he takes medication for them. When he has a seizure, he gets embarrassed about his disability and very frightened and does not want to be around people. Also, during a seizure, he thinks about the drunk driver who caused the accident and curses during the seizure. Further, when he has a seizure, Mr. Meiselman needs to “cool-down,” but, if that does not calm him and ease the seizure, an ambulance needs to be called. In September 1997, Mr. Meiselman was approved for social security disability by an administrative law judge of the Social Security Administration (SSA ALJ). At the hearing before the SSA ALJ, medical evidence was presented supporting an organic mental disorder, producing memory impairment and disturbance in mood; and supporting an affective disorder, producing major depression. The SSA ALJ found that Mr. Meiselman had “impairments” of a “closed head injury and major depression,” which were considered “severe”; and that the impairments prevented Mr. Meiselman from “maintaining appropriate levels of attention and concentration, and interacting with others on a sustained basis.” Additionally, the SSA ALJ found that Mr. Meiselman's activities of daily living (ADLs) were restricted or limited to the moderate level. It is not disputed that Mr. Meiselman suffers from a disability because of his memory and cognitive difficulties. On or about April 16, 2001, Mr. Meiselman completed an application for employment with the Clerk. At or about the time of his application, Mr. Meiselman submitted to the Clerk’s Human Resources office information regarding his approximate two-year lapse in employment and disability, as determined by the SSA, including his memory impairment and his suffering from seizures.2 However, Human Resources had no record of such information. On June 18, 2001, Mr. Meiselman was employed by the Clerk in the position of Archives Coordinator. He was placed in the Archives Department at the Clerk’s Deerfield location in the Warehouse. The manager of the Warehouse was Freddie Allen. Among other things, Mr. Meiselman’s work involved repetitive work and very little driving, both of which were needed in order for him to properly function in the position. No accommodation was requested by Mr. Meiselman. No accommodation was offered by the Clerk. Mr. Meiselman’s training for working in the Warehouse took six months. Normally, the training takes no more than one month. During Mr. Meiselman’s probationary period, he received monthly evaluations from Mr. Allen. No deficiencies were noted by Mr. Allen on the evaluations. Mr. Meiselman’s last evaluation in November 2001 reflected a ranking of above average in all of the categories being evaluated, except one, in which he received a ranking of excellent. After his probationary period, Mr. Meiselman received yearly performance appraisals. For the period of June 18, 2002, through June 18, 2003, his overall performance was rated as average. The performance appraisal reflects the Assistant Director of Support Services, Deborah Hitchcock, as the evaluator. Mr. Meiselman received an overall rating of average even though, on June 18, 2002, he received an “Oral Warning” for “unprofessional conduct” from Mr. Allen for an incident that occurred on May 28, 2002. Mr. Meiselman and another employee engaged in a verbal confrontation, but no physical contact, disrupting the work of fellow employees. Also, during that appraisal period, on February 12, 2003, Mr. Meiselman appeared to have experienced a medical incident that concerned Ms. Hitchcock to the degree that she authored an “Incident Report.” Mr. Meiselman was assisting in the unloading of boxes from a truck. Afterwards, Ms. Hitchcock observed him walking down a corridor; and he was pale, sweaty, incoherent, not responding to her attempts to talk with him, and repeatedly attempting to push open doors that required a key card to open. Other employees took measures to cool him down and paramedics were called. Mr. Meiselman was treated for heat- related problems and was permitted to drive himself home. Ms. Hitchcock was informed by Mr. Allen and another employee, Tom Williams, that they had observed Mr. Meiselman exhibiting the same conditions and behavior on prior occasions. Mr. Allen was aware of Mr. Meiselman's traumatic brain injury.3 Additionally, once, Mr. Allen observed Mr. Meiselman sweating abnormally and asked Mr. Meiselman whether anything was wrong. Mr. Meiselman responded that he was having a seizure, but Mr. Allen did not call an ambulance. The next day, February 13, 2003, Ms. Hitchcock asked Mr. Meiselman whether his conditions and behavior on the previous day were a health concern. He informed her that he believed that he had become overheated and that he was having a blood test performed later. Mr. Meiselman did not state to Ms. Hitchcock that he had suffered a seizure. Nor did he indicate to her that he suffered from seizures. On February 14, 2003, by memorandum, Ms. Hitchcock requested Mr. Meiselman to obtain clearance from his physician to return to work for full job-related duties at the Warehouse. Further, she informed him that he was not to use ladders and that she would also advise Mr. Allen of the restriction. On or about February 21, 2003, Mr. Meiselman obtained and submitted the clearance to return to “full activity at work” from his physician. He returned to work without any restrictions. For the period of June 18, 2003, through June 17, 2004, Mr. Meiselman’s overall performance was rated as needs improvement, with continued employment to be evaluated. The signature page was not attached to the performance appraisal. However, an inference is drawn and a finding of fact is made that Ms. Hitchcock was also the evaluator on this performance appraisal. On January 30, 2004, Ms. Hitchcock gave Mr. Meiselman an "Oral Warning" for his "quality of work" regarding a situation involving the destruction of public documents. Some boxes of parking citations were missing and could not be located. The subject boxes were public documents and, in compliance with Florida's public records law concerning retention, were not scheduled for destruction. Mr. Meiselman was in charge of the destruction of such boxes in compliance with Florida's public records law. The determination was made that the boxes had been destroyed and that they were destroyed contrary to Florida's public records law concerning retention. Mr. Meiselman was held responsible for the error. On March 5, 2004, Ms. Hitchcock gave Mr. Meiselman an "Informal Write Up" for his "quality of work" and "carelessness." The previous day, March 4, 2004, she was unable to locate a record disposition form in Mr. Meiselman's office that she needed. Ms. Hitchcock had previously advised Mr. Meiselman in writing about organizing and completing his disposition forms and files and reporting his dispositions in order for others to complete the tasks and to be able to locate documents in his absence. She informed him in the Informal Write Up that future issues in quality of work or carelessness would result in progressive discipline. On May 17, 2004, Ms. Hitchcock issued Mr. Meiselman a Corrective Action Statement (CAS) for his "carelessness" and "quality of work." She considered his work performance as inadequate. This action by Ms. Hitchcock was the first step of progression discipline. The CAS advised Mr. Meiselman, among other things, of the specific nature of his performance deficiencies and the detrimental effect of those deficiencies. Further, the CAS advised him that the consequence of his failure to improve his work performance would result in "continued progressive discipline, up to and including suspension or termination." Ms. Hitchcock met with Mr. Meiselman to review the CAS with him. In attendance, also, was Mr. Allen at Ms. Hitchcock's request. As Mr. Meiselman was reviewing the CAS, Mr. Allen observed a negative change in Mr. Meiselman's facial expression, which caused Mr. Allen to be concerned. Mr. Allen positioned himself between Mr. Meiselman and Ms. Hitchcock and asked Mr. Meiselman to calm down, which he (Mr. Meiselman) did. Even after the CAS, Ms. Hitchcock did not observe improvement in Mr. Meiselman's work performance. As a result, she prepared a second CAS and submitted it to the Clerk's Chief Director of Human Resources, Patricia Mosely, for review. After reviewing the pending second CAS, Ms. Mosely met with Mr. Meiselman. She reviewed the pending second CAS with him and indicated to him that it would jeopardize his continued employment. As an option, Ms. Mosely offered Mr. Meiselman a position in the Central Courthouse mailroom as a clerk. She advised him that, if he accepted the mailroom clerk's position, the pending second CAS would not be approved. The mailroom position was a lower position; but, it required repetitive tasks to be performed, which was what Mr. Meiselman indicated that he needed in a position, and was less demanding. Furthermore, he was able to perform the essential function required in the mailroom position. Additionally, during the meeting, Ms. Mosely asked Mr. Meiselman whether he was able to perform the physical aspects of his job in the Warehouse. He responded that he had a condition, but did not indicate what the condition was or whether the condition prevented him from performing his duties. Ms. Mosely provided the Clerk's "Physician's ADA [Americans with Disabilities Act] Questionnaire" to Mr. Meiselman and indicated to him that it needed to be completed in order for the Clerk to recognize a medical condition or disability. Mr. Meiselman accepted the position. The pending second CAS was not issued. The Physician's ADA Questionnaire was not returned to Ms. Mosely. On August 9, 2004, Mr. Meiselman began working at the mailroom. His supervisor was David Tomkins. Mr. Tomkins was already aware of Mr. Meiselman as a result Mr. Meiselman having worked at the Warehouse. Sometime after Mr. Meiselman began working at the mailroom, Mrs. Meiselman came to the mailroom and informed his co-workers about his seizures; this embarrassed him. She explained to Mr. Meiselman's co-workers what happens to him when he has a seizure and what they should do--let him cool-off and, if necessary, call an ambulance. Additionally, she provided the mailroom staff with her telephone numbers, which were placed in the mailroom. Mr. Tomkins had some knowledge of seizures because his wife suffered from grand-mal seizures, which were more severe than Mr. Meiselman's seizures. However, Mr. Tomkins had no knowledge of petite-mal seizures, which is the kind of seizure experienced by Mr. Meiselman. The Clerk did not offer and Mr. Meiselman did not request any accommodations at the mailroom when he began his new position. For the first month of his four-month probationary period in the mailroom clerk's position, Mr. Meiselman received a performance evaluation. For the period of August 9, 2004, through September 9, 2004, he received a performance rating of good, which indicated that he performed at a competent and dependable level and that he met the performance standards of the job. The performance evaluation was signed by the evaluator, Mr. Tomkins, on September 27, 2004, Ms. Hitchcock on September 28, 2004, and the Chief Director of Support Services, Crystal Pressey, on September 28, 2004. A few days later, on October 1, 2004, Mr. Meiselman signed the performance evaluation. He made comments on the evaluation, which included that he had a "disability of a traumatic brain injury," and that, because of his disability, he had problems remembering his duties that were not done repetitively. Mr. Meiselman did not request any accommodation for his disability. Again, he did not submit the Physician's ADA Questionnaire. The Clerk did not offer any accommodation for Mr. Meiselman's disability. Even though his first month's performance was rated as good, Mr. Meiselman's experienced subsequent problems. On November 15 and 16, 2004, Mr. Meiselman was late for work two hours and four and one-half hours, respectively. He advised Mr. Tomkins that he had a doctor's appointment on each of the days. However, Mr. Meiselman had neither called-in nor requested the time-off in advance, as he had been instructed to do. On November 17, 2004, Mr. Tomkins, along with Ms. Hitchcock, met with Mr. Meiselman regarding the proper procedure for requesting time-off and reporting emergency time- off from work. During the meeting, Mr. Tomkins requested Mr. Meiselman to read his (Mr. Meiselman's) calendar card, which contained two separate notations by Mr. Tomkins that Mr. Meiselman had been counseled by him (Mr. Tomkins) about requesting leave for medical situations. After reading the calendar card, Mr. Meiselman raised his voice, shouted, and became argumentative; he eventually calmed down, but, afterwards, said very little, mostly staring. The proper procedure for requesting time-off and reporting emergency time- off from work was explained to Mr. Meiselman, and he was provided with an application for leave. At the conclusion of the meeting, Mr. Tomkins requested Mr. Meiselman to initial the back of the calendar card to indicate that he (Mr. Meiselman) had read the calendar card; and that the meeting, regarding the proper procedure for taking time-off from work, had taken place. However, instead of initialing the back, Mr. Meiselman wrote a comment on the back and the front of the calendar card. On February 10, 2005, Mr. Tomkins sent an employee, Annie Baugh, to assist in the mailroom. Almost immediately after arriving in the mailroom, Mr. Meiselman accused her of being a spy for management and spying on him. Additionally, a mail basket was not in its usual location, and, while sorting some letters, Mr. Meiselman threw some of the letters on the floor and into Ms. Baugh's back. She requested Mr. Meiselman to pick-up the letters off the floor, so she would not slip and fall, and to stop hitting her in the back with the letters. Mr. Meiselman stopped hitting her in the back with the mail and began to pick-up the mail when he slipped and cut his arm. Mr. Meiselman wiped the blood from his arm on the edge of Ms. Baugh's desk; the blood being on the desk frightened her. Ms. Baugh reported the incidents. On February 11, 2005, a CAS was issued by Cathy Kellerman, the Court Operations Manager, to Mr. Meiselman, regarding the incidents on February 10, 2005, for "misconduct," "behavior," and "violation of personnel policies." Additionally, his previous violations of personnel policies were taken into consideration. This CAS was Mr. Meiselman's second CAS. He was given a two-day suspension and, among other things, as advised to seek counseling regarding his anger and provided contact information for counseling. Regarding the incidents on February 10, 2005, Mr. Meiselman denied and denies that he did anything in anger, but that he acted in a joking manner; and that he intentionally hit Ms. Baugh in the back with the mail, but that it was accidental. Further, he denied and denies that he put blood on the desk. The evidence is more persuasive that Mr. Meiselman committed the acts and conduct complained of on February 10, 2005. On May 2, 2005, Mr. Meiselman was counseled by Ms. Kellerman for taking inappropriate breaks. He was taking three, five-minute breaks in the morning and one in the afternoon. She advised him that he was entitled to only one, 15-minute break in the morning and in the afternoon. Mr. Meiselman informed Ms. Kellerman that he had submitted doctor's notes to Human Resources indicating that he needed the breaks that he was taking. On May 11, 2005, Ms. Kellerman checked with Human Resources, regarding the doctor's notes, but, no doctor's notes were on file. That afternoon, she saw Mr. Meiselman taking two breaks and, again, counseled him regarding the breaks. Further, she provided him with the Physician's ADA Questionnaire. About two days later, around mid-day on May 13, 2005, Ms. Kellerman was notified that Mr. Meiselman was having a seizure. She had no knowledge that he suffered from seizures. Immediately, Ms. Kellerman went to the mailroom. She found Mr. Meiselman sitting down at his desk, with his eyes closed. Ms. Kellerman got his attention, and he opened his eyes and told her that he had had a seizure, but did not need medical attention. Ms. Kellerman continued to try to talk to Mr. Meiselman when he began writing in a forceful manner on his desk with a pencil and stated that he was "going to kick their fucking asses." She became very concerned for Mr. Meiselman and the safety of the other workers. Ms. Kellerman tried to get Mr. Meiselman to stand-up in an effort to get him to Human Resources, but he could not stand. She then left the mailroom to get the assistance of the Assistant Director of Human Resources, Bob Hosto. Ms. Kellerman and Mr. Hosto returned to the mailroom and found Mr. Meiselman sitting at his desk, with his eyes closed. Mr. Meiselman opened his eyes; saw Mr. Hosto; and began stating over and over again that he did not want Mr. Hosto to be there, and, at the same time, pounding his fist on his desk over and over again and louder and louder. Eventually, without looking at anyone in particular, Mr. Meiselman shouted "get the fuck out of here." At that point, Ms. Kellerman was concerned for the safety of Mr. Hosto, herself, and the staff in the mailroom. She immediately left to get an officer from security or the Broward Sheriff's Office (BSO). Mr. Hosto also left the mailroom. Shortly thereafter, Ms. Kellerman and Mr. Hosto returned to the mailroom, but, Mr. Meiselman was gone. He had left the mailroom and clocked-out of work. On that same day, May 13, 2005, Mr. Meiselman's neurologist, Fernando Norona, M.D., provided a statement regarding Mr. Meiselman's brain injury. The statement indicated, among other things, that Mr. Meiselman suffered a traumatic brain injury, which caused Mr. Meiselman's current seizure disorder; and that Mr. Meiselman needed to take short frequent breaks during the day in order not to cause severe fatigue, which could trigger mini-seizures. No statement from Dr. Norona or any other physician, regarding Mr. Meiselman's traumatic brain injury, his seizures, and his need for frequent breaks, had been submitted to the Clerk prior to Dr. Norona's statement of May 13, 2005. On May 16, 2005, a third CAS was issued by Kathy Dean, the Director of Court Services, Division I, to Mr. Meiselman for "misconduct" and "behavior." The third CAS addressed the incident on May 13, 2005; the violations of the Clerk's written policies as a result of the incident; and the previous disciplinary actions taken against Mr. Meiselman. The final determination, based on progressive discipline, was the termination of Mr. Meiselman, on that same day, May 16, 2005; however, the third CAS indicated that he would be permitted to resign, if he so chose to do so. Additionally, on May 16, 2005, Mr. Meiselman wrote a statement on the third CAS. His statement indicated, among other things, that he had had two seizures on May 13, 2005; that he had become nervous and scared before Mr. Hosto arrived; that he had calmly told Mr. Hosto that everything was fine and requested Mr. Hosto to leave him alone, but that Mr. Hosto would not and kept pushing; and that he had a scheduled appointment with his doctor to have his medication increased, with the low dosage of his medication probably being the cause his seizures and behavior on that day. Mr. Meiselman was terminated on May 16, 2005. He was terminated in accordance with the Clerk's progressive discipline. At no time was the Physician's ADA Questionnaire returned to the Clerk. Mr. Meiselman's income for the year 2002 was $38,771; for the year 2003 was $39,114; for the year 2004 was $32,929; for the year 2005 was $8,881; for the year 2006 was $800; and for the year 2007 was $13,204, which was benefits paid from pension and annuities.
Conclusions For Petitioner: Glen Meiselman, pro se 8067 Mizner Lane Boca Raton, Florida 33433 For Respondent: Thomas H. Loffredo, Esquire GrayRobinson, P.A. 401 East Las Olas Boulevard, Suite 1850 Fort Lauderdale, Florida 33301
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 dismissing the discrimination complaint of Glen Meiselman against the Broward County Clerk of Court. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2010.
Conclusions THIS CAUSE came on for consideration of and final agency action on the Written Report and Recommended Order entered on September 24, 2010, attached hereto as Exhibit A. Pursuant to Section 120.57(2), Florida Statutes an informal hearing was conducted on August 16, 2010, heard before Hearing Officer Alan J. Leifer, via telephone conference call. After review of the record, including testimony and admitted exhibits, and being otherwise fully apprised in all material premises: IT IS HEREBY ORDERED that the Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact, and the Conclusions of Law reached by the Hearing Officer are adopted as the Department's Conclusions of Law. IT § HEREBY FURTHER ORDERED that the First Amended Order of Penalty Assessment (Penalty Only) is affirmed, and that Collective Consignment, Inc. shall pay to the Department the assessed penalty of $13,307.18, within 30 days from the date hereof, or enter into a Payment Agreement schedule. IT IS HEREBY FURTHER ORDERED that as long as Collective Consignment, Inc. is not in default of its payments, if entered into a Payment Agreement Schedule for periodic payment of penalty for Order of Penalty Assessment with the Division, it may continue all business operations provided it demonstrates to the satisfaction of the Division of Workers’ Compensation of having now complied with the workers’ compensation law by securing the necessary workers’ compensation insurance coverage for covered employees. DONE and ORDERED this joPaay of _Novernbea 2010. Ben Diamond, General Counsel Office of Chief of Staff
Conclusions On July 16, 2007, the Oflicc of Financial Regulation ('"OFR'' or the •'Office") received a Petition from Floridian Community Bank (''FCB'') seeking the modification of its Chartt:r Approval Order. On December 17, 2010. FCB filed a Withdrawal of its petition with the Office. In light of the withdrawal of the petition. there is no matter for consideration, THEREFOl!E, IT IS HEREBY ORDERED that this case is closed without .zc: ay further action. DONE and ORDERED this of December 20 l 0. NOTICE (WRIGHTS A PARTY \VHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA Filed December 20, 2010 12:01 PM Division of Administrative Hearings STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY Tl IE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COl'vlMENCED BY fl UNG TI lE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK FOR THE OFFICE OF FINANCIAL REGULATION AS FOLLOWS: ,Bv Mail or Facsimile Agency Clerk Office of Financial Regulation P.O. Box 8050 Tallahassee, Florida 32314-8050 Phone: (850) 410-9800 Fax: (850) 410-9548 OR Bv Hand Delivery Agency Clerk Office of financial Regulation General Counsel's Office The Fletcher Building, Suite 118 101 East Gaines Street TaHahassee, Florida 32399-0379 Phone: (850) 410-9896 A COPY OF THE NOTICE OF APPEAL, ACCOMPANIED BY THE FILING FEES AS REQUIRED BY LAW, MUST ALSO l3E FILED WlTH THE DISTRICT COURT OF APPEAL. FIRST DISTRICT, 301 S. MARTIN LUTHER KING, JR., BOULEVARD. TALLAHASSEE, FLORIDA 32399-1850. OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WIIERE TllE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITH BOTH THE AGE CY CLERK FOR THE OFFICE OF FINANCIAL REGULATION AND THE DISTRICT COURT OF APPEAL WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE 01< SERVICE l HEREBY CERTffY that a true and correct copy of the foregoing Final Order was served by U.S. Mail, Xelectronic mail. or -1 hand delivery on: Edward W. / Dougherty. Jr.. Esq., Igler arrcl Dougherty. P.A., 2457 Care Drive, Tallahassee, Florida 32308 and Craig B. Sherman, Esq., Sherman & Simone, P.A., 1000 Corporate Drive. Suite 310, Fort Lauderdale, FL 33334, this ·-· ·day of December 2010. L/ y/"/"/1' ,< _. ' / , ,..., . . ,/ / V • • .·· / .{t \.Qui ,y-Pc 'ock, Esq. fB # 0394572 · Oflicc of Financial Regulation 200 East Gaines Street, Suite 624 Tallahassee, Florida 32399-0371 850.410.9800 850.410.9548 {Fax)
The Issue The issues are whether Respondent committed an unlawful employment practice against Petitioner, and if so, what corrective action should be taken.
Findings Of Fact Petitioner is a forty-one-year-old black male. He is a 1977 graduate of the University of Florida with a bachelor's degree in Business Administration. His undergraduate major was Finance. Petitioner has approximately 30 credit hours in Accounting from the University of North Florida, which he earned between 1983 and 1988. Petitioner is currently enrolled in the University of North Florida's Masters of Public Administration program. He has completed 30 of the 39 required credit hours in that program. From November of 1979 to March of 1991, Petitioner worked for Occidental Chemical Company as an accountant. After leaving this job, Petitioner was self-employed from April of 1991 to December of 1991. Respondent's District Two office in Lake City, Florida, hired Petitioner on March 6, 1992, as a Purchasing Agent I. Respondent hired Petitioner under administrative rules pertaining to career service employees as promulgated by the Department of Management Services. Petitioner received a copy of Respondent's disciplinary and conduct standards when he was hired. Petitioner worked as a Purchasing Agent I until September of 1992. His salary during that time was $609.00 bi-weekly. In September of 1992, Respondent promoted Petitioner to the position of Accountant II in Respondent's Office of Financial Services. His bi-weekly salary was $752.91, a 23.5 percent increase. As soon as Petitioner became a member of the fiscal section, he received five weeks of intensive training relative to vouchers. This training was necessary because Respondent's central office was beginning to relinquish many functions to its district financial offices, including the vouchering process. Petitioner's direct supervisor in the fiscal section was Faye McClellan. She occupied the position of Accounting Services Supervisor I. Petitioner was indirectly supervised by David Sheffield, District Financial Administrator. On March 1, 1993, David Sheffield hired Karin Davis Charron, a white female, as an Accountant I in Respondent's Office of Financial Services. Her salary was $674.14 bi-weekly, or ten percent above the minimum for an Accountant I. Prior to her employment with Respondent, Ms. Charron had 15 credit hours in Business Administration and Accounting, which she earned at Lake City Community College. Her prior work experience included the following: (a) head cashier at a food store, October of 1983 to June of 1984; (b) accountant/bookkeeper in private business, July of 1984 to September of 1985; (c) Fiscal Assistant I, Department of Corrections, November of 1985 to April of 1987; (d) Secretary Specialist/Cashier, Department of Corrections, April of 1987 to May of 1988; and (e) Fiscal Assistant II, Department of Corrections, May of 1988 to March of 1993. In March of 1993, Petitioner completed his probationary period as an Accountant II. On March 27, 1993, Faye McClellan and David Sheffield gave Petitioner an overall performance rating of "exceeds." On June 1, 1993, Petitioner was promoted to the position of Accountant III. At this time, Petitioner's salary was increased by 10 percent to $828.20 bi-weekly. On August 20, 1993, Respondent hired Ricky Haddock, a black male, as a Fiscal Assistant II at a bi-weekly salary of $549.90. Ricky Haddock testified that soon after he was employed, Ms. Charron told him that "we can make your life a living hell." This statement is not credible due to Mr. Haddock's poor memory concerning the circumstances under which Ms. Charron allegedly made this statement. On or about March 11, 1994, Respondent promoted Ms. Charron to Accountant II with a bi-weekly salary of $766.94, a ten percent increase. Subsequently, Dave Sheffield received a promotion and vacated his position as District Financial Administrator. Linda Green, a white female, took his place. Ms. Green had over ten years of managerial experience when she accepted this position. As manager of the fiscal section, Linda Green became responsible for the direct supervision of Faye McClellan. She was Petitioner's and Ms. Charron's indirect supervisor. On or about March 17, 1994, Faye McClellan gave Petitioner a special performance appraisal. The appraisal form indicates that Petitioner, as an Accountant III, had attended voucher quarterly meetings, SAMAS contract training, payroll training, ADA training, and conduct standards training. The appraisal form described Petitioner as a team player. Of special note was his participation in the Youth Motivator Program in the Columbia County School System. Petitioner received a overall performance rating of "exceeds." Linda Green concurred in Ms. McClellan's assessment of Petitioner's job performance. On September 9, 1994, Respondent promoted Petitioner to the position of Accountant IV. The promotion increased Petitioner's salary by ten percent to $938.36 bi-weekly. Linda Green, as manager of the financial office, recommended Petitioner for this promotion. As an Accountant IV, Petitioner's duties primarily consisted of auditing consultant contracts. These contracts are the most complicated contracts that the financial office processes. Petitioner was also responsible for the payroll and for the supervision of other contract auditors. About two months after Petitioner became an Accountant IV, his immediate supervisor, Faye McClellan, requested and received a position reassignment in Respondent's purchasing office. Petitioner filed an employment application to fill the vacancy created by Ms. McClellan's reassignment. On November 21, 1994, Respondent promoted Petitioner to the position of Accounting Services Supervisor I. The promotion increased Petitioner's salary by 19 percent to $1,161.31 bi- weekly. Linda Green recommended Petitioner for the Accounting Services Supervisor I promotion. She became his direct supervisor. As Accounting Services Supervisor I, Petitioner was responsible for the direct supervision of several subordinate Fiscal Assistants and Accountants, including Ms. Charron. Petitioner was the only black supervisor in Respondent's second district. Historically, the financial section is one of the more racially diverse offices in District Two. From November of 1994 through June of 1995, there were approximately ten people working in the fiscal section. Three of these employees were black. At least two employees were members of other minorities. Petitioner, Ricky Haddock, and two other minority employees were the only employees in the financial office with a college education. On December 23, 1994, Respondent promoted Ms. Charron to Accountant IV. Her bi-weekly salary became $928.50 which was equivalent to the minimum of the pay grade for that position. Linda Green recommended Ms. Charron for the promotion to Accountant IV. Petitioner participated on the panel that selected Ms. Charron as the most qualified candidate to fill Petitioner's former position. In so doing, he reviewed her application and interviewed her for the job. There is no credible evidence to support Petitioner's current allegation that Linda Green allowed Ms. Charron to misrepresent her qualifications for the position of Accountant IV. Ms. Charron's application in February of 1994 for the position of Accountant II, and her application in November of 1994 for the position of Accountant IV, accurately describe all duties and responsibilities that she performed at Stafford's Fire Extinguisher Service in 1984-1985. In 1994, an applicant for the position of Accountant IV was required to have a bachelor's degree in accounting, or a certificate as a Certified Public Accountant, or equivalent work experience in accounting. Neither the Petitioner nor Ms. Charron possessed a bachelor's degree in accounting or a certificate as a Certified Public Accountant when Respondent promoted them to their respective Accountant IV positions. Nevertheless, the evidence indicates that they were well qualified for the position of Accountant IV, at the time of their respective appointments, based on a combination of their education and work experience. Petitioner had a bachelor's degree in Finance, over eleven years of accounting experience in private industry, and more than four years of experience in state governmental accounting. Ms. Charron, on the other hand, had less then one year of formal education in business administration/accounting, over one year of accounting experience in private industry, and more than eleven years of experience in state governmental accounting. State employees have to comply with numerous statutes and rules which do not apply to private enterprise. In this case, Ms. Charron's experience in working for the state more than compensated for her lack of formal education. As Accounting Services Supervisor I, Petitioner's supervisory responsibilities increased. In February of 1995, he directly supervised Rick Haddock and three other Fiscal Assistant II positions, two of which were vacant. He also had direct supervision over Ms. Charron. Ms. Charron, in turn, was responsible for the direct supervision of four other Accountant positions. On February 13, 1995, Petitioner signed a Review and Performance Planning (RAPP) form. This was a new form which Respondent began using just prior to implementing a major career service reform within the agency. The form states that from February 1, 1995, through January 31, 1996, Petitioner would be evaluated based on his performance of the following duties: Supervise district vouchering section. Active participation/supervision vouchering section. Coordinate workloads. Provide liaison with personnel, DOT and State Comptroller. Assist in Legislative budget request. Assist with budget preparation for various programs. Assist in formulating budget information into the different entities LBR's. Manage contract section. Manages all contracts. Verifying information and all supporting documentation for payments to vendors. Audit district disbursements. Audit disbursement for accuracy in accordance with GAP and pertinent federal/state/department rules/ regulations/statutes. The RAPP form lists the following as Petitioner's departmental responsibilities: 1. Coaching; 2. Delegation; 3. Management control; 4. Leadership/Influence; 5. EEO/Affirmative Action; 6. Performance goals; 7. Planning and organization; 8. Judgment; Resources; and 10. Safety practices. Linda Green wanted to increase the cross-training of all employees so that work would not become back-logged when one of them took leave. She also wanted to give Petitioner an opportunity to broaden his experience in other functions of the financial office. In order to accomplish her goals, Ms. Green gave Petitioner additional budget responsibility and deleted his property administration duties in February of 1995. Linda Green gave Petitioner's property administration duties to Ms. Charron. From February 1995, through May 1995, Ms. Charron spent a portion of her time working on the inventory. Ms. Charron continued to work on several special projects to supervise other accountants. As Accounting Services Supervisor I, Petitioner's desk was located in a glass enclosed area within a larger office. Petitioner was supposed to be a "working" supervisor. However, Petitioner spent an inordinate amount of time in his office with the door closed. During these times, Petitioner had long social visits with an employee from another office in the building. He discussed personal matters with an auditor from the central office on the phone for extended periods of time. At times Petitioner's door was locked, so staff could not use the computer which was located in his office. Petitioner's subordinates were reluctant to disturb Petitioner during these times even if they had a question they needed to ask him. They began to complain to Linda Green about Petitioner's unavailability. Linda Green observed Petitioner sleeping during meetings. At first she ignored the situation. However, employees from other offices began to complain about Petitioner's sleeping during meetings. Linda Green also received complaints from other employees that Petitioner was misusing state property. They claimed that he was receiving facsimile transmissions not related to department business. Linda Green began taking notes about these complaints on her computer. She did not share these notes with Petitioner. Linda Green discussed the prohibitions against misuse of state property in staff meetings. She also discussed her concerns about Petitioner's sleeping in meetings, talking on the telephone, and entertaining visitors with Petitioner personally. In February of 1995, Respondent initiated a new job classification and pay plan. The 1994 Legislature mandated this new system, which is distinct from the career service rules promulgated by the Department of Management Services. The new system is unique to Respondent as an agency. Under the new system, Respondent's employees retain career service status and benefits. However, Respondent changed position descriptions, job classifications, employment qualifications, and pay scale ranges to create more flexibility in hiring, promoting, and reassigning duties of employees within the department. The new system concentrates on the knowledge, skills, and abilities required for each position rather than a minimum qualification for each class specification. Formal education remains important, but it is not the paramount consideration in deciding whether to hire or promote employees. The focus of the new system is to ensure that employees can perform the required functions and duties of the specific positions which they occupy or for which they apply. Under the new system, Respondent can reward employees for productivity by increasing their salary without having to promote them to a new position or reclassify their existing positions. Respondent can increase or decrease salaries within a new classification, depending upon the actual duties assigned and performed by the employees. The new plan reduced the number of career service job classes from over 52 occupational groups with 1700 job classifications to 16 occupational groups divided into six levels. Respondent uses the fourth and fifth levels within an occupational group to recognize the distinctive, but equivalent, value of technical and managerial expertise. For example, each occupational group embraces a Level IV and Level V which corresponds to technical and managerial expertise respectively. A reassignment from a Level V managerial position to a Level IV technical position, or vice versa, is not a demotion or promotion, respectively. The new Level IV and Level V positions allow Respondent to reassign employees to different duties to meet the demands of the changing work load and work force without adversely affecting their work status, employment records, or incomes. Thus, Respondent can shift employees from obsolete duties to new and viable tasks where they are more productive. When Respondent initiated the new system, and for one year thereafter, Respondent's central office had to approve every reassignment from an old career service position "title" to the corresponding new title. In performing this duty, Respondent's central office verified the salary for each position to ensure that the salary corresponded to the duties assigned to that position. The initial reassignments in the new system were effective February 24, 1995. At that time, Linda Green, Ms. Charron, and Petitioner were reassigned to the new Accounting, Audit, and Tax occupational group with no change in their respective salaries. Linda Green was assigned to Level VI, as District Financial Services Manager. Petitioner was assigned Level V, Accounting Services Supervisor I, which required that Petitioner spend over 51 percent of his time supervising other employees. Ms. Charron was assigned to Level III as an Accountant IV. Petitioner continued to be Ms. Charron's direct supervisor. A personality conflict developed between Petitioner and Ms. Charron after she became an Accountant IV in December of 1994. Ms. Charron did not want the employees that she supervised to seek or receive assistance from Petitioner, even though he was her supervisor. If Ms. Charron disagreed with Petitioner, she would go over Petitioner's head to Linda Green to resolve the conflict. Petitioner resented not having total control over all of the employees under his direct and indirect supervision. His attitude became confrontational with other employees when they asked a question or made a comment that he perceived as undermining his authority. At times he was overly assertive in an effort to prove that he was right on one point or another. Linda Green did nothing to open lines of communication between Petitioner, as supervisor, and Ms. Charron, as his subordinate. Petitioner did not seek Ms. Green's assistance in resolving the conflict with Ms. Charron. As the power struggle between Petitioner and Ms. Charron ensued, dissension and poor morale became a problem in the fiscal section. On one occasion, Debbie Williams and Laura Kennon were working with the central office to correct an invoice error on one of Petitioner's consultant contracts. Petitioner questioned the method they were using to correct the problem. He wanted them to correct the error without involving the central office or the State Comptroller's office. Ms. Williams wanted to leave a proper audit trail. Before the situation was resolved, all three employees became angry and confrontational. Around the end of February 1995, a member of the financial services staff requested a meeting to discuss the problems the office was having as a result of the dissension between Petitioner and Ms. Charron. Jean Jones, District Two's Director of Administration attended the meeting. Linda Green and Jean Jones advised the staff that they could go to either Petitioner or Ms. Charron for answers to any questions about their work. Linda Green did not tell her staff in this meeting, or any other meeting, that education did not mean anything in Respondent's financial section. After the meeting was over, Jean Jones told Linda Green that some changes had to be made to better define the lines of communication within the office. Ms. Jones instructed Ms. Green to do some research and develop a solution to the problem. A large part of Ms. Charron's duties included working on special projects. These projects necessitated frequent consultations between Linda Green and Ms. Charron. There is no persuasive evidence that Linda Green showed favoritism to Ms. Charron by conspiring with her against Petitioner in private meetings and conversations. To the contrary, the dissension that existed in the office was the result of a personality conflict between Petitioner and Ms. Charron. Ms. Green's inability to establish a clear chain of command aggravated the situation. Prior to November of 1994, Respondent provided Petitioner with an abundance of training in technical and management subject areas. Some of the technical seminars included consultant procedures and negotiation, contract fund approval and encumbrance, and contractual services training. Other training programs included office staff skills enhancement, employee selection, conduct standards and discipline, district budget development, supervisory decision making, employee performance appraisal, fundamental skills of communication, fundamental skills of management, and Certified Public Management Level I. After November of 1994, Petitioner continued to receive training to enhance his career. Some of the programs he attended included review and performance planning, how to supervise people, managing change, presentation skills, budget and budget orientation, federal aid training, records retention, and management problems of the technical person in a leadership role. Linda Green encouraged Petitioner to participate in the training programs. She gave him the opportunity to develop the skills necessary to enhance his career. In the spring of 1995, Linda Green worked on training plans for all personnel in the fiscal section including Petitioner. On April 7, 1995, Ms. Green discussed Petitioner's training plan with him. On April 25, 1995, a copy of Petitioner's training plan was discovered on his desk with the word "bullshit" written across the bottom. Petitioner admits that he wrote this expletive on his training plan in the presence of Ms. Charron. In April of 1995, the State Comptroller's office rejected and returned a great number of invoices to the financial office. Linda Green responded by assigning Petitioner the responsibility of handling the returns and correcting the errors. In order to stay apprised of the situation, Ms. Green required that all mail relating to returns be directed to her before being delivered to Petitioner. She did not review Petitioner's mail unrelated to the returns. In April of 1995, Linda Green became aware that certain work assigned to Petitioner and/or Petitioner's subordinates was not being performed in a timely manner. Ms. Green had to enlist the help of other personnel to complete the work. In April of 1995, Linda Green initiated the procedure to issue reprimands to Petitioner concerning his continued misuse of the office telephones and facsimile machines, his sleeping on duty, and his social visits that wasted time. However, this procedure was delayed because Petitioner was hospitalized for surgery. Petitioner was out of work on sick leave from April 27, 1995, to May 30, 1995. During his illness, Linda Green extended Petitioner's probationary period for his Accounting Services Supervisor I position. In the 1992-93 fiscal year, the financial services office had approximately 12 primary responsibilities. The financial office gained 10 additional duties in the 1993-94 fiscal year and 18 new duties in the 1994-95 fiscal year. During this time, the number of positions in the financial office doubled. In May of 1995, Linda Green began to plan the reorganization of the financial section. She discussed the reorganization with her supervisor, Jean Jones. They made a decision to divide the responsibilities in the financial services office between Petitioner and Ms. Charron, the two established supervisors. They based the decision in part on a need to accommodate the increased work load. They also decided to split the supervision duties in an effort to improve the lines of communication within the office and to eliminate dissension. Officials in Respondent's central and district offices approved the reorganization. Under the reorganization plan, Ms. Green decided to give Petitioner responsibility for the following: supervising the concentration account; processing purchase orders, local purchase orders, local charge accounts, and utility invoice transmittals; processing travel and individual reimbursements; handling deposits; supervising warrant distribution; and processing mail. Ms. Green deleted Petitioner's duties relative to payroll and contracts. Ms. Charron's duties under the reorganization included supervision of the following: contracts, reconciliations, compliance reports, interest payments, and journal transfers. She assumed supervision of the payroll at the express request of Jean Jones. Additionally, Ms. Charron was assigned numerous special projects. When Petitioner returned to work from sick leave on June 1, 1995, Linda Green discussed the reorganization with Petitioner and Ms. Charron. She advised them that Ms. Charron would supervise four Level Two positions, one of which was vacant. Petitioner would supervise five Level One positions, all of which were occupied. Petitioner and Ms. Charron would report directly to Linda Green. Linda Green decided to have Petitioner supervise the Level One positions because they needed more supervision than the Level Two positions. Petitioner was better qualified than Ms. Charron to supervise the five entry level positions occupied by minority and non-minority employees. On June 15, 1995, Linda Green promoted Ms. Charron to Accounting, Audit, Tax Level V. Her salary was increased by 20 percent to $1,114.20 bi-monthly. The promotion was effective before the expiration of Ms. Charron's probationary period as an Accountant IV. The decisions to reorganize the section and promote Ms. Charron were made while Petitioner was absent on sick leave. Linda Green did not deliberately choose to promote Ms. Charron without consulting Petitioner as her supervisor. Moreover, Ms. Green, as manager, had no duty to consult with Petitioner before reorganizing the office. On June 16, 1995, Linda Green issued two official written reprimands against Petitioner. The first written reprimand involved a violation of Respondent's Conduct Standard 14-17.012(4)(a)6., Florida Administrative Code, for sleeping on duty. The reprimand documented the following occasions that Petitioner violated this conduct standard: November 30, 1994; December 1, 1994; January 5, 1995; March 13, 1995; March 20, 1995; March 21, 1995; March 30, 1995; June 5, 1995; and June 7, 1995. Prior to June of 1995, numerous employees were observed sleeping in meetings. The record contains no evidence that any of them were given written reprimands for sleeping on duty. Except for one of these employees, there is no evidence that their respective supervisors were aware that they were sleeping on duty. One employee, Jim Spencer, was observed sleeping on duty by his direct supervisor, Jean Jones. He was not on permanent career status at the time. Jean Jones decided to extend Mr. Spencer's probationary status rather than issue him a written reprimand. Ms. Jones made a conscious decision to give Mr. Spencer an opportunity to correct his behavior before dismissing him from employment. The second official written reprimand charged Petitioner with violating Respondent's Conduct Standard 14-17.012(4)(a)25., Florida Administrative Code, for unauthorized use or misuse of state property, services, equipment or personnel, and Respondent's Conduct Standard 14-17.012(4)(a)7., Florida Administrative Code, for loafing. This reprimand was the result of Petitioner's continued abuse of telephone privileges from January through June of 1995, misuse of the facsimile machines from February through May of 1995, and extended social visits with an employee from another office from January through March of 1995. Petitioner's alleged misuse of Respondent's facsimile machine was due to his involvement with the Safe and Drug-free Schools Advisory Council sponsored by the Columbia County School Board. Petitioner was cautioned in staff meetings on February 13, 1995, and February 21, 1995, against using state property for personal reasons. After those meetings, he received announcements of advisory council meetings on February 27, 1995, and April 26, 1995. He received a third fax transmission from the school board on May 16, 1995, while he was on sick leave. The school board solicited Petitioner's participation in the advisory council during one of Respondent's staff meetings. Respondent's employees did not have to request leave to attend the meeting. Nevertheless, Respondent did not give its employees permission to use its facsimile machines to receive notices about advisory council meetings or other volunteer work. Petitioner contacted the school board staff to tell them not to send him notices using Respondent's facsimile machines. The record is not clear as to when Petitioner made this request. Petitioner did not receive facsimile transmissions from the school board after he received the reprimand in June of 1995. The record contains evidence of four written reprimands for employee misuse of state property from December 1994, through May 1995. From February 1996, through June 1996, six employees were given written reprimands for misuse of state property. The reprimands of other employees included misuse of telephone privileges, computers, and agency stamps and stationary. These reprimands, together with competent evidence that Petitioner abused his long-distance telephone privileges as set forth below, eliminate any concern that Petitioner received disparate treatment regarding his reprimand for misuse or unauthorized use of state property. There is no evidence that Respondent has ever cited anyone but Petitioner for loafing. Nevertheless, the record supports this charge against Petitioner. Juanita Aiken works in Respondent's central office as an Disbursement Services Analyst. She testified that she often discussed personal matters with Respondent's employees in long- distance telephone conversations before she addressed the business purpose of her call. Linda Green personally informed Petitioner in January of 1995 that he needed to confine his long-distance telephone conversations with Ms. Aiken to department business. Petitioner did not heed her verbal warning. Ms. Aiken's personal telephone conversations with Petitioner did not cease until Linda Green and Jean Jones contacted her supervisor in Tallahassee. In the spring of 1995, Linda Green solicited Debra Williams' help in monitoring Petitioner's personal telephone calls. Ms. Williams declined to become involved and requested that her desk be relocated to another area. Linda Green assigned Ms. Charron a desk in Petitioner's private office in April of 1995. Ms. Charron complained to Ms. Green that Petitioner was talking on the phone for 30 to 45 minutes everyday and sometimes twice a day. The personal nature of the calls made Ms. Charron feel uncomfortable. Olu Olyewole worked for Respondent as a Distributor Computer Systems Analyst. He was responsible for connecting personal computer terminals to the networking system. He visited Petitioner regularly for extended periods of time until Ms. Green complained to his supervisor. When Mr. Olyewole visited Petitioner, the door to Petitioner's private office would often be closed. Early in 1995, Wanda Jean Hills desk was located in the glass-enclosed office with Petitioner's desk. On one occasion she could not get to her desk because she believed Petitioner and Mr. Olyewole were having a private conversation. The long social visits with Mr. Olyewole wasted time in an office that was overburdened with work. The visits interfered the performance of work by Petitioner and his subordinates. Petitioner was unavailable to his subordinates during these visits because they were reluctant to disturb his conversations, even when they needed his assistance. Linda Green did not reprimand any of her subordinates except Petitioner for misuse of state property, sleeping on duty, or loafing. However, there is no evidence that other employees under her authority violated the same conduct standards that Petitioner violated. There is evidence that Linda Green sold Amway products to employees on Respondent's property over a two-month time span. The record does not reflect the exact period of time in which Ms. Green engaged in this activity. The greater weight of the evidence indicates that Linda Green passed out Amway brochures and delivered merchandise before work in the mornings. At times, her co-workers would place an order with Ms. Green during work hours because they were familiar with Amway products and knew that she was an Amway representative. Occasionally, Respondent's employees would hand Ms. Green a check or leave one in her desk during work hours. Linda Green did not aggressively pursue her private enterprise during work hours. There is no evidence that Ms. Green's private business activities interfered with her duties or usurped a significant portion of her time as manager of the financial section. Respondent did not give Linda Green a written reprimand for conducting private business on Respondent's property. The record does not reflect whether Ms. Green was verbally reprimanded. It does not appear that her supervisor, Jean Jones, was aware that Ms. Green was involved in selling Amway products on department property. The record does not contain evidence of any written reprimand based solely on unauthorized solicitation on state property. It does contain evidence that Respondent issued a written reprimand to an employee for conducting personal business while using a state vehicle. The employee's actions, like Ms. Green's, were incidental to the performance of his duties. The employee's supervisor did not require the employee to reimburse the agency for any cost. On June 16, 1995, Linda Green gave Petitioner a special performance appraisal to evaluate his performance as a supervisor since November 21, 1994. To conduct this evaluation, Ms. Green used the performance appraisal form for supervisors and managers that was in effect when Petitioner was promoted to Accounting Services Supervisor I in November of 1994. Linda Green admits that she did not conduct the required initial review of the relevant performance standards with Petitioner within two weeks of his promotion. Nevertheless, Petitioner's claims that he was not familiar with the performance standards used by Ms. Green to evaluate his performance is not persuasive. Petitioner attended at least two seminars in performance appraisal and performance planning. Petitioner was familiar with the performance standards for a supervisor, which became effective after Respondent initiated its career service reform in February of 1995. He signed the RAPP form on February 13, 1995. The standards contained on the new appraisal form are substantially similar to the performance standards listed on the older appraisal form. Linda Green gave Petitioner an overall performance rating of "below" standards. The record supports her determination that Petitioner's work performance began to fall short of expectations after he assumed the position as an accounting supervisor. Linda Green determined that Petitioner's performance in two categories deserved the highest rating of "achieves." These two categories were EEO/AFFIRMATIVE ACTION and SAFETY PRACTICES. Linda Green determined that Petitioner's performance was substantially below expectations in at least one area of each of the remaining six categories for the following reasons: PLANNING, CONTROLLING AND ORGANIZING WORK Petitioner failed to operate his work areas efficiently. He did not notify his supervisor of job related problems. Petitioner did not take necessary and appropriate action on performance and shortcomings of subordinate employees. SUPERVISION/LEADERSHIP OF PEOPLE Petitioner failed to delegate effectively. Petitioner demonstrated dissension toward other staff members. PERFORMANCE APPRAISALS Petitioner did not take necessary and appropriate action on performance shortcomings of subordinate employees. PROBLEM ANALYSIS/DECISION MAKING Petitioner failed to inform and/or consult with necessary persons during the decision- making process. SELF DIRECTION/PERSONAL SKILLS Petitioner failed to use his work time effectively. He abused his telephone privileges. He wasted time visiting with an other employee. JOB PERFORMANCE Petitioner failed to perform specific job assignments as outlined on his position description or as assigned by appropriate management. A job applicant claimed that he earned 2400 credit hours in a U.S. Army finance school within a two-month period. Petitioner offered the applicant a job without verifying this information. Linda Green subsequently determined that the applicant had misrepresented his qualifications and withdrew the job offer. Based on this incident alone, Petitioner did not meet the standard for job performance in general. In December of 1995, Rick Haddock received a promotion to a Level II accountant. His salary increased by 20 percent to $715.27 bi-monthly. In March of 1996, Petitioner had a confrontation with Mary Caldwell, a white female accountant. Petitioner's voice was loud; he sounded very angry and threatening. The disturbance alarmed several employees who were in the vicinity. Ms. Caldwell and Petitioner went into a private office where the argument continued. Petitioner's behavior toward Ms. Caldwell was totally inappropriate. On March 22, 1996, Linda Green gave Petitioner a written reprimand for violation of Respondent's Conduct Standard 14-17.012(4)(a)16., Florida Administrative Code, involving rudeness, display of uncooperative or antagonistic attitude, actions or behavior. That same day, Ms. Green gave Petitioner a mandatory Employee Assistance Program Referral. In June of 1996, Linda Green deleted Petitioner's duties involving the budget and supervision of the vouchering section. Linda Green gave Patsy Green, a white female, Petitioner's budget responsibilities. Linda Green took this initiative because of the increased work load resulting from continued decentralization. The central office initiated a process in 1996 to conduct a periodic formal Quality Assurance Review (QAR) in each district office. The purpose of the QAR was to ensure that all vouchers were correct before they were sent to the billing office of the State Controller. Ms. Green wanted Petitioner to focus his energy on making sure that District Two's vouchers were in compliance with all state regulations. In June, 1996, Linda Green gave Petitioner additional duties including financial audits and investigations, quality assurance reports, reconciliations, comptroller returns, and liaison with the State Comptroller's office. His new duties were in-depth auditing and accounting responsibilities involving job cost reporting and making sure that the accounting system stayed in balance. Petitioner's salary was not decreased when his job description changed. At the same time, Linda Green gave Ms. Charron additional duties including contract funds management, joint participation agreements, settlement agreements, management reports, training, and numerous special projects. Ms. Green deleted Ms. Charron's supervisory responsibilities over the contract section. Linda Green received information in June 1996, that the central office intended to audit the supervisory positions in District Two. The central office wanted to make sure that all Level V positions in the Accounting, Audit, and Tax occupational group were held by employees spending at least 51 percent of their time in supervision. Petitioner and Ms. Charron were not spending 51 percent of their time in supervising the work of other employees. Accordingly, both of them were reassigned on June 14, 1996, to Level IV of the Accounting, Audit, and Tax occupational group. The working title for each of them became Accounting Services Administrator. This change was not a demotion and did not effect their respective salaries. Instead, the reassignments accurately reflected the actual duties of their positions. After Petitioner filed his Charge of Discrimination, Michael Klump, from Respondent's Minority Program Office in Tallahassee, Florida, was assigned to furnish all information requested by FCHR and to prepare the agency's response to the complaint. Mr. Klump's duties did not involve investigating the alleged charges on behalf of FCHR. Respondent's Minority Program Office prepared a letter dated September 11, 1995, addressed to Petitioner. The purpose of the letter was to advise Petitioner that the agency had received the complaint. It states that Petitioner should contact Mr. Klump if Petitioner had any additional information or questions regarding this matter. There is no competent evidence to indicate whether Petitioner received the letter from the Minority Program Office. Mr. Klump visited Respondent's District Two Office in Lake City to gather the information requested by FCHR. He did not interview Petitioner while he was there. Respondent's Minority Program Office does not routinely interview complainants who file a charge of employment discrimination with FCHR unless the complainant responds to a letter similar to the one addressed to Petitioner. There is no credible evidence that Respondent prepared its response and/or position statement to FCHR with the intention of misrepresenting material facts. Linda Green gave Petitioner a copy of her computer notes relative to dissension in the office when he first requested them. However, she edited the notes to delete the names of employees that had complained about Petitioner. At the hearing, Ms. Green produced an unedited copy of the notes which had been updated beyond the time relevant here. There is no persuasive evidence that Respondent intentionally discriminated against Petitioner on the basis of his race or gender or retaliated against him for filing his Charge of Discrimination.
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 dismissing Petitioner's claims of racial and gender discrimination and retaliation. Recommended this 15th day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
The Issue The issue is whether respondent's certified public accountant's license should be disciplined for the alleged violations set forth in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Flanagan & Baker, P. A. (respondent or firm), was a certified public accounting firm having been issued license number AD 0006179 by petitioner, Department of Professional Regulation, Board of Accountancy (Board). When the events herein occurred, the firm's offices were located at 2831 Ringling Boulevard, Suite E-118, Sarasota, Florida, and John R. Flanagan and Michael L. Baker, both certified public accountants (CPA), were partners in the firm. In addition, Thomas A. Menchinger, also a CPA, was a junior partner. The firm has since been dissolved, and Flanagan and Menchinger have now formed a new firm known as Flanagan & Menchinger, P. A., at the same address. It is noted that Flanagan, Baker and Menchinger are not named as individual respondents in this proceeding, and at hearing respondent's representative assumed that only the firm's license was at risk. Whether license number AD 0006179 is still active or valid is not of record. In 1987, respondent, through its partner, Flanagan, accepted an engagement to prepare the 1986 calendar year financial statements for Ballantroe Condominium Association, Inc. (BCA or association), an owners' association for a fifty unit condominium in Sarasota. Financial statements are a historical accounting of what transpired for an entity during a particular period of time as well as the status of its assets, liabilities and equity on a given date. They are prepared for a variety of persons who rely upon them to see what transpired during that time period. If the statements are not properly prepared, the possibility exists that harm or other problems may accrue to the users of the statements. After the statements were prepared and issued, a unit owner made inquiry with respondent in August 1987 concerning two items in the statements. When he did not receive the desired response, the owner wrote the Department in September 1987 and asked for assistance in obtaining an opinion regarding the two items. Eventually, the matter was turned over to a Board consultant, Marlyn D. Felsing, and he reviewed the statements in question. Although Felsing found no problems with the two items raised by the owner, he noted what he perceived to be other errors or irregularities in the statements. This led to the issuance of an administrative complaint on September 29, 1988 charging the firm of Flanagan & Baker, P. A., with negligence in the preparation of the statements and the violation of three Board rules. That precipitated the instant controversy. The engagement in question represented the first occasion that the firm had performed work for BCA. The association's annual financial statements from its inception in 1980 through calendar year 1983 had been prepared by Touche Ross & Company, a national accounting firm, and for the years 1984 and 1985 by Mercurio and Bridgford, P. A., a Sarasota accounting firm. Some of these statements have been received in evidence. As a part of the Board investigation which culminated in the issuance of a complaint, Felsing visited respondent's firm, interviewed its principals, and reviewed the work papers and financial statements. A formal report reflecting the results of his investigation was prepared in June 1988 and has been received in evidence as petitioner's exhibit 1. In preparing his report, Felsing relied upon a number of authoritative pronouncements in the accounting profession which underlie the concept of generally accepted accounting principles (GAAP). These included various opinions issued by the Accounting Principles Board (APB), Statements on Auditing Standards (SAS) issued by the Auditing Standards Board, and Accounting Research Bulletins (ARB) issued by the Committee on Accounting Procedure. The three organizations are a part of the American Institute of Certified Public Accountants (AICPA). With regard to the concept of materiality, which requires an accountant to consider the relative importance of any event, accounting procedure or change in procedure that affects items on the statements, Felsing did not exclude any matters on the ground they were immaterial. Rather, he included all possible irregularities, regardless of their materiality, on the theory that the probable cause panel (for which the report was initially prepared) should consider all items in the aggregate. According to Felsing, a number of irregularities or errors were found in the financial statements prepared by respondent. These are discussed separately in the findings below. The first alleged deficiency noted by Felsing concerned a change by the association from accelerated to the straight-line method of depreciation. According to APB 20, such a change is considered to be significant, and "the cumulative effect of changing to a new accounting principle on the amount of retained earnings at the beginning of the period in which the change is made should be included in net income of the period of the change." In other words, APB 20 requires the cumulative effect of the change to be reported in the net income of the current year. However, respondent accounted for the change as a prior period adjustment on the statement of members' equity. Respondent justified its treatment of the item on the ground the prior year's statements prepared by Mercurio and Bridgford, P. A., did not show any accumulated depreciation. Thus, respondent asserted it was merely correcting an error because the other firm had not reported depreciation on the balance sheet. In addition, respondent noted that the effect on the balance sheet was only $721, deemed the item to be immaterial, and concluded its treatment of the item was appropriate. However, APB 20 requires the auditor to address the cumulative effect of the change ($2,072) rather than the effect of only the current year ($721), and therefore the cumulative effect should have been reported in current income. By failing to do so, respondent deviated from GAAP. The association had designated several cash accounts as being reserve accounts for deferred maintenance and replacements. Under ARB 43, such accounts must be segregated in the balance sheet from other cash accounts that are available for current operations. This would normally be done in a separate classification called "other assets" so that the user of the statements would be aware of the fact that the reserves were not available for current operations. However, the statements reflect that three such reserve accounts were placed under the classification of current assets. It is noted that these accounts totaled $25,514, $18,550 and $30,927, respectively. While respondent recognized the difference between cash available for current operations and reserves for future use, and the requirements of ARB 43, it noted that the association's minute book reflected the association regularly withdrew funds from the accounts throughout the year to cover current operations. Also, the prior year's statements prepared by Mercurio and Bridgford, P. A., had classified the item in the same fashion. Even so, if respondent was justified in classifying the accounts as current assets, it erred by identifying those accounts as "reserves" under the current assets portion of the balance sheet. Therefore, a deviation from GAAP occurred. One of the most important items in a condominium association's financial statements is how it accounts for the accumulation and expenditure of reserves, an item that is typically significant in terms of amount. The accounting profession does not recommend any one methodology but permits an association to choose from a number of alternative methods. In this regard, APB 22 requires that an entity disclose all significant accounting policies, including the choice made for this item. This disclosure is normally made in the footnotes to the financial statements. In this case, no such disclosure was made. Respondent conceded that it failed to include a footnote but pointed out that when the statements were prepared by Touche Ross & Company, one of the world's largest accounting firms, that firm had made no disclosure on the basis of immateriality. However, reliance on a prior year's statements is not justification for a deviation from GAAP. It is accordingly found that APB 22 is controlling, and footnote disclosure should have been made. The financial statements contain a schedule of sources and uses of cash for the current fiscal year. According to APB 19, all transactions in this schedule should be reported at gross amounts irrespective of whether they utilize cash. However, respondent reported all transactions in the schedule at their net amount. In justifying its action, respondent again relied upon the prior years' statements of Touche Ross & Company and Mercurio and Bridgford, P. A., who reported the transactions in the same manner. It also contended the item was immaterial and that a detailed explanation of the item is found in the statement of members' equity. Despite these mitigating factors, it is found that the schedule was inconsistent with APB 19, and a deviation from GAAP occurred. Felsing's next concern involved the language used by respondent in footnote 6 to the statements. That footnote pertained to the unfunded reserve and read as follows: NOTE VI - UNFUNDED RESERVE As of December 31, 1986, the Association reserves amounted to $103,953 consisting of $18,931 as a reserve for depreciation and statutory reserves of $85,022. The amount funded was $95,422 leaving an unfunded balance of $8,531 due to the reserves from the operating funds. Felsing characterized the footnote as "confusing" because it referred to depreciation as a part of a future reserve for replacements. Felsing maintained the footnote contained inappropriate wording since depreciation relates to assets already placed in service and not to their replacements. Respondent agreed that the footnote, taken by itself, might be confusing. However, it contended that if the user read the preceding footnote, which he should, there would be no possible confusion. That footnote read as follows: NOTE V - RESERVE FOR DEPRECIATION The Association funds the reserves for depreciation through its operating budget. These funds are to be used for the replacement of property and equipment as the need arises. As previously noted, the Association changed its method of computing depreciation to conform with generally accepted accounting principles. As of December 31, 1986, the reserve for depreciation totaled $18,931. According to respondent, the above footnote made clear to the user that the firm was not referring to depreciation as a reserve but rather was setting aside funds equal to depreciation in an effort to have sufficient cash to purchase assets in the future. While the deficiency here is highly technical and minute in nature, it is found that the footnote is not sufficiently clear and that the user might be confused. Felsing next observed that the footnotes did not disclose how the association accounted for lawn equipment or other capital assets. According to APB 22, such a choice is considered a significant accounting policy and, whatever policy is utilized, the same must be disclosed in the footnotes to the statements. In response, Flanagan pointed to a footnote in Note I of the statements which read in part as follows: Property and Equipment and Depreciation Property and equipment capitalized by the Association is stated at cost. During 1986, the Association changed its method of depreciation from the accelerated cost recovery method to a straight line method in which property and equipment is depreciated over its estimated useful life in accordance with generally accepted accounting principles. According to respondent, this footnote was adequate in terms of explaining the method of depreciation. Also, a number of other statements were introduced into evidence to show that other entities routinely used a corresponding footnote. Flanagan's testimony is accepted as being the most credible and persuasive evidence on this issue, and the footnote is accordingly deemed to be adequate disclosure on this policy. In the statement of members' equity, there is an item in the amount of $1,730 described as "capitalization of lawn equipment expensed in previous year." Although Felsing did not question the amount shown, he faulted respondent for not properly describing whether the item was a change in accounting principle or an error correction. According to APB 20, the disclosure of an error correction is required in the period in which the error was discovered and corrected. Although respondent considered the footnote described in finding of fact 11 to constitute adequate disclosure, it is found that such disclosure falls short of the requirements of APB 20. Work papers are records and documentary evidence kept by the accountant of the procedures applied, tests performed, information obtained and pertinent conclusions reached in the engagement. They serve the purpose of documenting the work performed and provide verification for the accountant. In addition, another important, required tool is the audit program, a written plan for how the auditor intends to perform the audit. The plan serves the purpose of documenting the accountant's mental process of deciding what procedures are necessary to perform the audit and to communicate those procedures to the persons actually conducting the audit. The audit plan should include in reasonable detail all of the audit procedures necessary for the accountant to perform the audit and express an opinion on the financial statements. Although a variety of checklists have been prepared by the AICPA and other organizations, each audit program must be tailored to fit the needs of a particular client. Felsing noted what he believed to be a number of deficiencies with respect to respondent's work papers, audit program, and engagement planning. In reaching that conclusion, Felsing relied upon various SAS pronouncements which govern that phase of an auditor's work. Those pronouncements have been received in evidence as petitioner's exhibits 7-14. Although the work papers themselves were not introduced into evidence, Felsing stated that his review of them reflected they were "deficient" in several respects. For example, he did not find a planning memorandum, time budget, checklist or other evidence that planning procedures were performed as required by SAS 22. In this regard, Flanagan corroborated the fact that no formal planning memorandum to the file was prepared. Although respondent's audit program was written for a condominium association, Felsing found it "extremely brief" and was not tailored to this particular client. He opined that such a program should have included reasonable detail of all audit procedures necessary to accomplish the audit and to express an opinion on the financial statements. In particular, it was noted that some required procedures were not on the list while some procedures actually used by respondent were not included. Through conversations with respondent's members, Felsing learned that much of the audit work was performed by Menchinger, the junior partner in the firm. In addition, "a few" other work papers were prepared by an unknown assistant. Although Menchinger reviewed all work performed by the assistant, Felsing found no evidence that the papers were reviewed by the supervising partner, Flanagan. Such review, which is a required step in the audit process, is generally evidenced by the supervising partner placing check marks or initials on the individual work papers. Felsing noted further that the decision to rely on the testing of internal controls was not documented in the work papers by respondent. He added that the amount of time budgeted by respondent for this engagement (around thirty hours) was inadequate given the fact that it was the first year the firm had prepared this client's statements. Finally, Felsing concluded that the violations were not peculiar to a condominium association but were applicable to all enterprises. Respondent pointed out that the association was a small client with less than five hundred line items, and the audit program and engagement planning were planned within that context. Respondent introduced into evidence its audit program which contained the steps taken by the firm in planning for the engagement. Testimony that all steps contained therein were followed was not contradicted. Similarly, Flanagan testified without contradiction that he reviewed all work performed by Menchinger but did not evidence his review with tick marks on each page. According to Flanagan, on a small audit such as this, he considered the signing of the tax return and opinion letter evidence that he had reviewed the work papers. However, Flanagan acknowledged that someone examining the papers would not know they had been reviewed by the supervising partner. Based upon the above findings, and after reconciling the conflicting testimony, it is found that respondent violated GAAP by failing to have a planning memorandum, time budget, and evidence of testing of internal controls within its work papers. All other alleged violations are found to without merit. Respondent has continued to represent the association since the Board issued its complaint. Indeed, Flanagan noted that the association is pleased with the firm's work, and this was corroborated by a letter from the association's board of directors attesting to its satisfaction with the firm. There was no evidence that the association or any other third party user of the statements was injured or misled by relying on the statements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the violations discussed in the conclusions of law portion of this Recommended Order, and that license number AD 0006179 be given a reprimand. All other charges should be dismissed. DONE and ENTERED this 30th day of October 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of October 1989.
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, petitioner, Mary L. Kinlaw, was employed by respondent, Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Claims, as a Word Processing System Operator, and held permanent status in the Career Service System. As a Word Processing System Operator, her duties included typing, filing, and general secretarial work. Petitioner worked a total of seven (7) hours in January 1991, and last reported for work on January 18, 1991. She has not thereafter reported for work, requested a leave of absence, or contacted the respondent. By letter of May 10, 1991, the respondent notified petitioner that: . . . you have been dismissed from your Work Processing System Operator position, effective 5:00 p.m., May 20, 1991. This action is being taken in accordance with Rule 22A-7.010(2), Florida Administrative Code (F.A.C.) and is for the offense of abandonment of position. The predicate for such action was petitioner's failure to report for work since at least February 21, 1991, a period of more than 3 consecutive work days. By letter of June 12, 1991, filed with the Department of Administration on June 17, 1991, petitioner protested the respondent's action. Petitioner did not, however, appear at hearing, and no competent proof was offered for or on her behalf to demonstrate that her failure to report for work was other than a voluntary abandonment of her position. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a final order sustaining respondent's determination that petitioner abandoned her Word Processing System Operator position with respondent, and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1991. WILLIAM J. KENDRICK 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 12th day of September 1991.
