Judge Jeffrey R. Levenson, Broward Circuit Court, Florida
4:35PM Sep 11, 2020
Speakers:
A.
Q.
THE COURT
THE COURT REPORTER
MR. MILLER
MS. AMLONG
MR. AMLONG
KAREN
MR. WOLLNER
Keywords:
honor
mr wheeler
dr burch
aware
senior systems engineer
fort lauderdale
pension
wheeler
exhibits
pay
system administrator
hubbard
defined benefit plan
year
question
correct
give
entitled
position
wrestle
No, I did not.
And you're aware that he was a participant in a defined benefit plan that awarded him 90% of the highest two years of his salary and longevity pay. At the time of his retirement after participation in dross.
Yeah.
And you're aware that plans like that are few and far between in the private sector correct.
I'm sorry. Can you repeat that.
We're the defined benefit plans are few and far between, in the private sector, is that correct.
Yes.
And you are aware that even with the city of Fort Lauderdale, other than its police and fire departments, new hires, do not have the benefit of a defined benefit plan. Right.
That's my understanding
that you have reviewed the report that was prepared by Dr Burch.
Yes.
And you're aware that he is assumed that Mr. Wheeler, had he remained employed would have become a senior systems engineer when the position of senior. I'm sorry. You're aware that Dr Burt pines, that he would have become a senior systems engineer when the position of systems administrator was abolished. Correct,
yes I'm aware that's what Dr Burch did.
And you're aware that the pay range for senior systems engineer capped out at $125,000 in change is that correct.
That's my understanding, I don't have it in front of me.
And you also are aware that because of Mr wheelers longevity, with the city. He had had bumping rights and had some preference with regard to taking positions of positions were eliminated.
I'm aware of that through the testimony that I've heard.
Okay. Um. Why did you not value his loss of pension benefits.
I would not ask to do so by counsel. In your opinion as a forensic accountant, is, is a pension particularly a defined benefit pension, a valuable asset that should be valued
objection, your honor outside the scope. I'm sorry guys you're muted.
I was hoping you can read my lips sustain.
I'm sorry. Can you repeat the question then
it's just a ma'am. You don't have to answer. Next question.
I think I think Miss Emma I think that's a legal determination that we're going to have to work through ourselves. Okay. All right.
All right, Miss gildan with regard to your estimation of the loss or gain as a result of going to work for Citrix dr Burch in fact projected a much higher gain than you did, did you not,
I believe, that is correct in the sense that Dr Burch projected out much further in time period, I did not look because Dr Birch's calculations were month by month, and we're not summarized on an annual basis, I didn't go through to add up exactly what he had by year.
But the bottom line of your testimony is that you don't believe that Mr. Wheeler is entitled to any front pay whatsoever and likewise dr Burch does not believe he's entitled to any front pay whatsoever. Correct.
It appears that way again my analysis on a year by year basis and showed specifically showed a cumulative I'm not a pining as to any time period that Mr Wheeler would be entitled to front pay, which is why specifically we did it on a year by year basis, so that it is legally determined for example that he's entitled to front pay, just through December 31 2018, then the front pay would be a little bit under $3,000 as shown in my report.
But neither you nor dr Burch applied to that Mr. Wheeler was entitled to receive any front pay whatsoever from the city of Fort Lauderdale. Right. I'm sorry I think I just answered the question I don't really understand.
I think we I'm not offending me we got it that's not what. I'm just trying to do really what's in dispute is the pension and so the calculation for the pension.
Correct. I have no further questions,
redirect.
I have no questions.
All right, Miss. Miss gildan be excused.
Yes, Your Honor.
All right, thank you, man. Appreciate it. And you're right. Anything else from the defendant.
No sir, Your Honor, we have no further evidence.
All right, Miss amlong anything else from you.
No, Your Honor.
We have this Steve Hubbard. He has been here Do we know who he is used to lead people and we have Lee Lynette
Lee is the court reporter.
Okay. Who is let me see who was Steve Hubbard anybody know who he is.
I do not your Honor.
Mr Hubbard. There you go. Mr Hubbard how you doing, who are you. Yes.Who are you, what is your relation here. Yeah. Yes, I can hear you. But who are you like what do you relate to this case, you just come into watch. Yes. Yes. I thought it was. Yes, yes, your a former court reporter. You went, you went to DC okay didn't know if you were any other, I knew it was Steve Hubbard you were but I'm just curious when people come in who they are. You're welcome, you're welcome, you're welcome to be here, open court, he, he also union everybody can come any one. All right, let's get back to Miss amlong, do you have anything in rebuttal.
I don't I think Mr amlong May.
Yes, I'd like to call Mr Wheeler.
Okay, Mr. Hubbard. All right. Mr. Wheeler, still under oath.
Mr Wheeler.Would you have elected a lump sum, as opposed to 90% of your salary for the rest of your life, not retirement.
No.
Why not
on one two guaranteed benefit.
I'm a completely missed that that a lot of song. Please forgive me for that. lottery. So I know as much about it as any of us so he's entitled to I hope I didn't go off on a rabbit hole.
He just saying that he just has found that he would not have taken it.
Even if he had the option, he wouldn't.
All
right. Do you, do you know whether the. You've heard the testimony of Mr. Rogers, that the systems administrator was the transformed to senior system engineer in 2018, correct?
yes
If the position had been eliminated in 2011.How could it be renamed.
Objection, Your Honor culture speculation,
do you know whether or not the position was eliminated in 20I1
No, because I mean, there was one system administrator that had one had more seniority than I did. And that was Scott Windsor. Scott went right from System Administrator title to the senior systems engineer title,
but there was a was there also a second.
Yeah, one of the ones over a police I had seniority said there was five. The other gentlemen testified that three of them were laid off. I had a solid second most of the seniority behind Scott. Scott was the only one that had more seniority paid.
Okay, that's it.
All right, cross,
no questions, Your Honor.
All right. Anything else from in rebuttal.
No, Your Honor.
All right. All right, you want to have a brief argument. You know my suit is, basically, I need to wrestle with the legal issue. The issue of whether the pension apply I think everybody agrees absent the pension. There really isn't any front pay, there's no differential. He probably do a little, you may be doing a little bit better in terms of money with with Citrix. But the bottom line is the pension at four in Fort Lauderdale is very valuable it's three and a third percent a year. And it's a defined benefit and you get, you know, if these days or 30 years you get 90% so obviously there's, that's the major discrepancy we all agree with that.
It's your honor.
That's right.
So why don't we do this, why don't you guys give me both the proposed findings of fact includes as a wall with your version. Do it simultaneously How long will take you to do it. Karen,
probably. 10 days.
I mean, I'll give you a due date but the main The most important thing is that it's got to be simultaneous. Okay. Do not you know because it's not really fair to give either side, an opportunity to to respond. So why don't we do this, why don't you guys get it in noon on have it emailed to me on noon on September 25. That's two weeks. Is that okay with you Mr. Miller. Yes, sir. All right. Again, there really isn't. I think what I'll get from you, Mr. Miller is your version there's no front Bay. It's only, I mean, and there's no benefit for No, no accommodation for the pension and why you put that in there and of course Ms amlong and Mr Amlong and you'll do just the opposite and you'll give you the authority and Aaron and I'll wrestle with that and I'll come up trying to come up with an order as quickly as possible, because you know Mr Wheeler, this case does go back to 2010 on the 10th anniversary and we still have the other cases pending right. Maybe that'll be tried in the next century, so how are we doing with the other case, it's
the good thing about the other case is a. I hate to say that is a good thing in my clients, but finally been fired, but she's finally been fired. So now I don't have to update it every six monthsfor discrimination.
First I've already getting fired is a good thing. in the world of employment law. It is so
your honor did receive my, my reply there, respond okay yeah
yes you filed it. No. Ever default I think I'll give you the date you filed
Monday.
I did. Yeah, I do have it, I peruse it. I gotta wrestle with with putting an order together which I will do as quickly as . And we'll do our best. Mr. Miller or Mr. Amlong, do you wish to add to the court.
I guess at your honor, you know, alternative alternative to the rather large pension payment that we're asking for is to give Mr. Wheeler, his presumptive remedy of reinstatement
right we really won't have, we already took care of that in January anyway.
Okay, I'm just saying that, you know, I know this is a big number.
Well, the big number I think for a lot or rather, if it has been a number that come back. Is that right, Mr. Miller.
That's my understanding.
Yeah, so make some money but regrettably Mr Wheeler against the city was a separation. That's breaking up a little bit.
Sorry, but she doesn't want you back.
The City of Fort Lauderdale, takes separation reign permanent but if I, if I follow your, your lawyers argument. It'll be a very expensive separation. So that's what we need to deal with. Okay,
Your Honor. I mean, this includes Trump too right
yes yeah yeah it's all there. Your, your expert, Dr Burch included everything, including if I follow, basically following his report or, or not that's pretty much it, he did what he was supposed to do he was routine and did a pretty detailed analysis of the pension plan and again dr Burks I'm sorry I misspoke because I was assuming Fort Lauderdale was the FRS, but you know that's why they have a racism pencils right judges are not perfect, just like anybody else but. So I was always. You'll never get that 15 minutes cross or questioning by the court, but never get that 15 minutes back in your life. I'm sorry.
Well, Your Honor, I missed the opportunity to tell you when you apologize for not calling me doctor person my wife, certainly calls me worse.
Well you know what, as your your you're a hurricane right so just like Ms. amlong is is a. Are you, but you teach it, so you're here to, two UMs right.
University of Florida as well. So I have multi multiple hats I wear
one from the other UM, the University of Maryland. So, that's okay.
Okay ACC just ignore anybody.
You're on just pretend procedurally you have access to all the exhibits that we've moved in.
That's a really good point, son.
What exhibits you have right now and what exhibits are missing, because you didn't really access on some of the exhibits there were only up the ones that were admitted
show five plaintiffs number four report expert defenses. Number 10 defense's number eight. Defense number 11 defense number 12 defense number 14.
So that's what's in evidence, even though you guys didn't object to the other evidence. It really wasn't referenced. So with it not being referenced I don't really feel the need to add that to the list you know you added more just in case. That's fine. I just wanted to add that we did rely on you have access to in the course. Okay, listen I have everything online. Yes.
I don't think anything else is relevant except the few, so.
Alright, I think we're good to go. Alright so, so in sum. The 25th at noon you'll email it to the division email DIV09 at 17th FLCOURTS.org division, DIV09 at 17thFlCourts.org. And, you know, you don't need to file it don't file it with the clerk, because that won't be the final order, that's the proposed order that I'll get from you. And also one of the thing if you could please put it in Word I'd appreciate it. Not a PDF.
Yes, sir.
So I can access it and use it. Alright guys, thank you very much for your time. I have to tell you, you all We're very efficient get done at 1225 I can't tell you how much I appreciate that so thank you for that. Thank you.
Thank you for your time,
and I look forward to your submission, and it's point we'll close the record. Okay, I'm going to ask canon actually went for me. All right, thank you guys.
Have a good weekend.
Take care.
Take it easy.
Can I just ask a question, Mr. Kenneth Wollner who you represent.
