15-001892 Mary Ann De Matas vs. H And R Block Enterprises Status: Closed Recommended Order on Monday, October 12, 2015.

Summary: Petitioner failed to ptove that she was subject to an unlawful employment practice by Respondent in violation of section 760.10, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY ANN DE MATAS ,

Petitioner ,

vs. Case No . 1 5 - 1892

H AND R BLOCK ENTERPRISES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on June 23, 2015 ,

by video teleconference at sites in Tallahassee and Gainesville ,

Florida, and on June 24, 2015, in Gainesville, Florida before

E. Gary Early, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARA NCES

For Petitioner: Mary Ann De Matas , pro se

6512 Southwest 53rd Avenue

Gainesville, Florida 32608

For Respondent: Erin L. Malone, Esquire

Dennis M. McClelland, Esquire

Phelps Dunbar LLP

Suite 1900

100 South Ashley Dri ve

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether the Petitioner was subject to an unlawful

employment practice by Respondent, H and R Block Enterprises , on

account of h er race, color , or sex ; as a result of RespondentÓs

maintenance of a sexua lly - hostile work environment ; or as

retaliation to her opposition to an unlawful employment

practice, in violation of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On J uly 30, 2014 , Petitioner, Mary Ann De Matas

(Petitioner) , filed a n Employment C omplaint of D iscrimination

w ith the Florida Commission on Human Relations (FCHR) in which

s he alleged that Respondent, H and R Block Enterprises ( H & R

Block or Respondent ) , violated s ection 760.10, by discriminating

against h er on the basis of h er r ace , c olor, and sex , or due to

retaliation for her opposition to an unlawful employment

practice , in violation of section 760.10 .

On March 12, 2015 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determ ined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On April 8,

2015 , Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was originally set for June 9, 2015 . It

was continued, re - set for June 23 - 24, 2015 , and held as

scheduled.

At the commencement of the final hearing, the parties

advised that they were in general agreement with a dra ft of a

joint stipulation of facts. A short recess was taken, during

which the parties finalized the ir J oint Stipulation of Facts.

That document was offered, accepted , and received in evidence as

Joint Exhibit 1. The stipulated facts have been used in t he

preparation of this Recommended Order , either verbatim or with

changes for style or continuity.

At the final hearing, Petitioner testified on h er own

behal f . Petitioner Ó s Exhibits 6 - 7, 12 - 13, 15, 18 - 25, 27 - 28,

30 - 40, 42 - 47, 50 - 63, 65 - 69, 71 - 99, 101 - 102, 104 - 114, 120 - 124,

127 - 133, 136 - 138, and 152 - 169 were received in evidence.

Respondent presented the testimony of Amber Howell,

RespondentÓs District General Manager; Tammie Craft,

RespondentÓs District Operations Coordinator; Suzetta Heflin, a

form er Client Service Professional and current Client Service

Leader for Respondent; and Stacy Vobach, RespondentÓs Associate

Relations Center Manager and records custodian. R espondentÓs

Exhibits 1 through 20 were received in evidence.

A three - volume Tr anscript of the hearing was filed , with

the final volume being filed on September 15, 2015 . The parties

timely filed post - hearing P roposed R ecommended O rder s, which

have been considered in the preparation of this Recommended

Order. References to statutes are to Florida Statutes (201 4 ) ,

unless otherwise noted.

FINDINGS OF FACT

1 . Petitioner , who was at all times relevant to this

matter , an employee of Respondent , is an African - American

fe male .

2 . H&R Block is a tax preparation company that provides

tax preparation services to individuals and businesses. H&R

Block has retail offices throughout the United States, including

the Steeplechase tax office in Gainesville, Florida. Respondent

employs more than 15 full - time employees at any given time.

3 . H&R Block is an equal opportunity employer. Its equal

employment opportunity policy applies -- without regard to an

employeeÓs race , color, or sex, or any legally - protected status

-- to all aspects of employment, including but not limited to

hiring, placemen t, promotion, termination, layoff, transfer,

scheduling, leaves of absence, compensation, and training. H&R

Block also has a written anti - discrimination and anti - harassment

policy that strictly prohibits unlawful discrimination and

harassment in the workp lace, and prohibits retaliation. H&R

BlockÓs policies are published to all employees.

4 . H&R Block employees who believe they are subject to

impermissible employment discrimination or harassment are

encouraged to bring their issues to the attention of their

supervisor (if practical) or the human resources department , to

call H&R BlockÓs toll - free hotline, or to send an email to

[e-mail] .

5 . In late fall of each year, H&R Block hires seasonal

employees to work in its retail offices to provid e tax

preparation services during the tax season, which generally runs

from the end of December through April 15th of each year.

6 . Each tax office employs seasonal tax preparers, known

as Client Service Professionals (CSP) , and is managed by a

Client Service Leader ( CSL or Office Manager). The C SL reports

to a District General Manager (District Manager) who oversees

numerous tax offices.

7 . H&R Block employed Petitioner as a seasonal CSP for the

2009 through 2013 tax seasons.

8 . In mid - 2013, M s. Howell was hired by Respondent as a

District General Manager to manage 20 tax offices throughout the

North Central Florida District.

9 . Due to the seasonal nature of the job, it was not

unusual for there to be a high rate of CSL turnover,

particular ly in the 14 seasonal offices that were not open year -

round. T he Steeplechase tax office is a seasonal office .

10 . Among Ms. HowellÓs first acts as District Manager was

hiring a new CSL for the Steeplechase office. Being new to the

company, she had no specific knowledge of , or experience with ,

existing H&R Block employees.

11 . Tammie Craft was RespondentÓs District Operations

Coordinator, responsible for managing RespondentÓs physical

facilities and electronics, supplying paperwork and forms for

us e by the District Manager and CSLs, ordering supplies,

managing and distributing office keys and petty cash, keeping

lists of contacts, and similar responsibilities. Ms. Craft was

not charged with personnel matters.

12 . Ms. Howell, having little person al knowledge of H&R

Block employees, followed Ðbest practice Ñ and solicited input as

to suitable candidates from Ms. Craft. Ms. Craft knew of

Petitioner , who had worked as a CSP and who was enrolled in

RespondentÓs Income Tax Course , and identified Petiti oner Ðas

having potential.Ñ Ms. Craf t recommended Petitioner to

Ms. Howell for the Steeplechase CSL.

13 . In October 2013, Ms. Howell interviewed Petitioner in

person and subsequently hired Petitioner for the 2014 tax season

as the seasonal C SL posi tion in the Steeplechase tax office . As

a CSL , Petitioner was an hourly, non - exempt employee. The

hiring of Petitioner to a supervisory C SL position was a

promotion from her previous position as a CSP . In her new

position, Petitioner reported to Ms. How ell.

14 . The Steeplechase office is a small office on the

outskirts of Gainesville. It had, immediately prior to the 2012

tax season, suffered the loss of its long - time CSL who , on his

death , had about 400 clients in his portfolio. Some of those

c lients left for other tax preparers. As a result, the

Steeplechase office had experienced declines in clients and

revenues.

15 . Petitioner was hired primarily to market H&R Block

services in the community in order to increase clients and

revenues. In a ddition to marketing, Petitioner was responsible

for adhering to and enforcing company policies and procedures

(including its anti - discrimination and anti - harassment

polic ies ), scheduling, monitoring office progress reports and

employee reports, and attend ing manager meetings, among other

managerial duties. In addition to her managerial duties ,

Petitioner prepared tax returns for clients.

16 . Petitioner was responsible for managing four seasonal

CSPs who staffed the Steeplechase office : Hillery Bassriel ;

Donna Bassriel ; Suzetta Heflin; and Nicholas Tucker . Hillery

and Donna Bassriel were husband and wife, and had been employees

at Steeplechase since before 2008. Ms. Heflin joined H&R Block

at Steeplechase in 2008. Mr. Tucker, who was a close friend of

Ms. Heflin, joined in 2012. In addition, Petitioner managed two

office receptionists.

17 . The Steeplechase office CSPs , who had worked

independently and autonomously over the years , did not respond

well to PetitionerÓs management style.

18 . It was not uncommon for the CSPs to be called to the

office by their clients to work on tax returns. Ms. Heflin

testified that the CSPs understood that their clients had jobs

and schedules that might not be conducive to meetings during

regular hours, and that c ustomer service often demanded dropping

everything to hurry to the office for a meeting. Many of the

instances of off - schedule hours and non - compliance with dress

code described herein were the result of hastily called off - hour

and odd - hour requests from clients.

19 . Mr. Bassriel, who had worked at the office for the

longest period - - since before 2008 - - was aggressively

territorial with his clients. CSPs are paid, in part, on

commission. Thus, it is in their financial interests to get and

keep as man y clients as possible. Although the CSPs tried to

evenly split up clients, Mr. Bassriel frequently intercepted new

clients as they came in the door, changed appointments when he

believed he was entitled to handle a client, and was generally

protective of his clients.

20 . Mr. Bassriel was somewhat lax about working a set

schedule and conforming to the company dress code. He would

occasionally fail to put in his time commitments and , though he

did not like to work on Saturdays, would occasionally show up

for work on that day. He preferred working by himself, and

would frequently work Ðoff - the - clockÑ to catch up on work or

make appointments. He would occasionally appear at work dressed

in soccer shorts, tennis shoes and collarless shirts or

sweatshirts , t hough he had a medical clearance for such dress .

However, Mr. Bassriel was an effective and productive CSP, and

th o se incidents of less - than - rigid compliance with company

attendance and dress codes had been overlooked before

PetitionerÓs employment.

21 . Mr. Tucker was described , even by his close friend,

Ms. Heflin, as having a bad temper. If left to himself, he was

a productive worker. However, he chafed at management, which

led to the incidents described herein, and to his eventual

termination.

2 2 . When Mr. Tucker first began work at H&R Block in 2012 ,

he and Mr. Bassriel were frequently at odds, with the cause of

their disputes being the distribution of clients, including

those from SteeplechaseÓs recently deceased CSL. During those

disputes, M r. Tucker was known to d irect profanity at

Mr. Bassriel. After a per iod of time, Mr. Tucker and

Mr. Bassriel worked out their conflict , and they had no further

disputes.

23 . As with Mr. Bassriel, Mr. Tucker would come to work

late, would work without cl ocking - in, and would appear at off -

scheduled hours to meet with clients. On any given day,

Mr. Tucker might wear jeans and a collared shirt, or the

sanctioned attire of a shirt and tie. Depending on the

circumstances, he was known to come in to meet clie nts wearing

shorts and a tee - s hirt. He would frequently eat at his desk,

rather than in the office break room. However, RespondentÓs

clients were happy with Mr. Tucker and so, a s with Mr. Bassriel ,

his non - compliance with attendance , dress code , and offi ce

policies had been overlooked before PetitionerÓs employment .

24 . During the 2014 tax season, Petitioner frequently

reported her complaints about Mr. BassrielÓs and Mr. TuckerÓs

attendance and attire to Ms. Howell and H&R BlockÓs human

resources depar tment .

25 . On multiple occasions, Petitioner and Mr. Tucker were

at odds with each other and did not get along, but at other

times, they joked around with each other . Petitioner even joked

about Mr. Tucker in some texts messages that she sent to

Ms. Ho well.

26 . During and after the tax season, Ms. Howell received

complaints from the Steeplechase CSPs about PetitionerÓs

management style and behavior.

27 . As a result of the ongoing complaints from both

Petitioner and the CSPs , Ms. Howell repeatedly counseled

Petitioner on how to effectively manage her employees, and

suggested different management approaches. Moreover, Ms. Howell

conducted manager meetings in Ocala for the 20 CSLs under her

supervision , which Petitioner regularly attended . During t hese

meetings, Howell taught leadership skills and discussed

different management techniques.

28 . Ms. Heflin testified that conflicts between Petitioner

and Mr. Tucker were commonplace. When Mr. Tucker came to work

late, fail ed to clock - in, or violate d dress code, Petitioner

would generally greet him with hostility . In those instances

when Mr. Tucker react ed negatively, which was not uncommon,

Petitioner would frequently laugh at him, an act that Ðset him

off,Ñ thus escalating the situation. Ms. Hefli n testified,

credibly, that neither Petitioner nor Mr. Tucker acted in a

professional manner.

29 . Ms. Heflin testified that the conflicts would often

re sult in Mr. Tucker directing profanity towards Petitioner,

including calling her a bitch, and saying things like he Ðwished

sheÓd get hit by a car,Ñ or he Ð hoped sheÓd die.Ñ However,

Mr. TuckerÓs language was not motivated by animus based on rac e

or gender. Rather, he just did not like Petitioner or her style

of management. More to the point, except fo r the three

incidents described below, Petitioner did not report any of the

arguments or profanity to Ms. Howell, to RespondentÓs human

r esource s department, or to any other person or office having

responsibility for human resource issues.

30 . In Januar y 2014, Petitioner contacted Ms. Howell and

the human resources department to report that Mr. Tucker

report ed to work 27 minutes late and wearing jeans on January 6,

and reported to work 17 minutes late on January 7.

31 . On January 9, 2014, an Alachua County Code Enforcement

officer visited the tax office to discuss H&R Block outdoor

marketing signage that allegedly violated a county ordinance.

The officer was an older Caucasian man. Mr. Tucker confronted

the county employee and used Ðobscene language Ñ towards him.

32 . Petitioner emailed Ms. Howell to report Mr. TuckerÓs

behavior towards the Code Enforcement officer . Petitioner

reported that she counseled Mr. Tucker about his unprofessional

behavior, as well as his attendance and attire. Accordin g to

Petitioner, Mr. Tucker Ðstarted accusing me of being annoying,

because I bur [ p ] when I eat in the back when IÓm on my lunch

break.Ñ Petitioner countered by telling Mr. Tucker that he

needed to take breaks in the breakroom, instead of at his desk,

and he needed to pick up his garbage. According to Petitioner,

Mr. Tucker used ÐprofanityÑ and called her an Ðidiot,Ñ and said

that she was set up to be a failure. Petitioner did not specify

in the email the type of ÐprofanityÑ used by Mr. Tucker. None

of the insults described reflect any racial or gender animus.

33 . Petitioner concluded her January 9, 2014, email to

Ms. Howell by noting that Mr. Tucker Ðhad absolutely no respect

for anyone that walked in today.Ñ Thus, the evidence is

persuasive that M r. TuckerÓs foul mood and attitude was visited

equally on anyone who crossed his path, regardless of their race

or gender. Mr. Tucker received a verbal warning for the

January 9, 2015 , incident .

34 . On January 22, 2014, Mr. Bassriel and Mr. Tucker both

appeared at the office in varying stages of non - compliance with

office policy.

35 . Mr. Bassriel came to the office to prepare a tax

return with a client. He was wearing soccer shorts, a Ðhoodie,Ñ

and tennis shoes . There was no indication that the clie nt

objected to his attire. Petitioner t ook a picture of

Mr. Bassriel and the client and sent it to Ms. Howell. There

was no evidence of any reaction by Mr. Bassriel.

36 . Mr. Tucker arrived just before 7:00 p.m. on the

evening of January 22 , at the req uest of a client who ask ed that

t he y meet to prepare the clientÓs tax return. As indicated

previously, such requests were not uncommon . Petitioner sent a

text message to Ms. Howell complaining that Mr. Tucker came in

Ðliterally 20 mins ago . . . not in a ppointment manager.Ñ

S ubsequent text messages indicate that Petitioner was upset that

Mr. Tucker did not let her know of the unscheduled appointment

ahead of time , stating that H&R Block is Ð Ò open by appointmentÓ

we are . . . : - p I said sure if you let m e know ahead of time.Ñ 1 /

Petitioner then advised Ms. Howell that Mr. Tucker Ðjust called

me a pai n in his ass . . . I am literally laughing.Ñ She then

indicated that she was going home, and would Ðdo an exceptionÑ

the next day.

37 . On January 23, 201 4, Petitioner contacted RespondentÓs

human resources department to report Mr. TuckerÓs actions of the

previous evening. She reported that Tucker had ÐcursedÑ at her

when she questioned him about scheduling a client , and

s pecifically stated that Tucker tol d her, Ð y ou better not fuck

with my timeÑ and Ð y ou need to go back to being a CSP.Ñ There

was no explanation as to why PetitionerÓs description of the

language used by Mr. Tucker changed from that provided in her

initial report to Ms. Howell . Nonetheless , t hough Mr . TuckerÓs

alleged response , as reported the day after the incident, was

stronger than the initially reported statement that Petitioner

was Ða pain in his ass,Ñ neither statement provides evidence of

any conduct or statement directed towards Pet itionerÓs rac e or

sex.

38 . On January 23, 2014, Ms. Howell visited the

Steeplechase tax office to individually meet with Petitioner and

Mr. Tucker to discuss the January 22 incident, to coach

Mr. Tucker on his attendance and dress code compliance, and to

explore with Petitioner ways to improve office morale .

Ms. Howell testified credibly that Petitioner provided no

additional examples of the pro fanity allegedly uttered by

Mr. Tucker , and that there w as no report of any comment based on

sex or race. Ms . Howell gave both Petitioner and Mr. Tucker the

option to transfer to another H&R Block office but , since a

transfer could affect clients and compensation, neither Ðwanted

to take the hit.Ñ Mr. Tucker received a written corrective

action notice .

39 . P etitioner testified -- rel ying on her own after - the -

fact alterations to her emails to Ms. Howell to support her

testimony -- t hat Mr. Tucker used considerably more vile and

inflammatory statements on January 22 than those reported in

writing to Ms. Howell and the human resources department , or

discussed on January 23 with Ms. Howell . Specifically,

PetitionerÓs altered emails provide that Mr. Tucker Ð[c]alled me

bitch, slut, whore,Ñ and that ÐTucker told De Matas to shut the

fuck up when she told him hello, Tucker called De Matas a

Òfucking cuntÓ, Òlearn how to do a tax return you stupid slut.ÓÑ

Those more inflammatory statements were allegedly made in the

presence of Ms. Heflin , who had no recollection of the

statements , despite the words being ones that w ould reasonably

stick in oneÓs memory. Furthermore, Petitioner testified at the

hearing that she did not tell anyone affiliated with Respondent

that Mr. Tucker called her a ÐbitchÑ or a Ðslut,Ñ and never told

anyone in H&R Block human relations that she w as subject to

sexual harassment or race discrimination. She did not tell

Ms. Howell. PetitionerÓs altered emails and testimony were

unsu pported by any contemporaneous writings. Whether the more

inflammatory statements were made or not, since they were n ot

reported to H&R Block, they lack effect.

40 . Between January 23 and March 27, 2014 , Petitioner and

Mr. Tucker appeared to have Ðpatched things up.Ñ The only

incident regarding Mr. Tucker reported to Ms. Howell occurred on

February 21, 2014, when Peti tioner sent a text message to Ms.

Howell in which she complain ed that Ð[ Mr. Tucker ] is eating at

his desk watching a movie online but he did clock out. soooo??Ñ

Ms. Howell provided guidance on how Petitioner might gently

resolve the matter.

41 . Petiti oner again provided after - the - fact editorial

commentary to her February 21, 2014 , text message to Ms. Howell,

asserting th at ÐNicholas Tucker once again cussed me out using

vulgar and threatening language.Ñ If that occurred, why

Petitioner would not have reported it to Ms. Howell at the time

is a mystery. Nonetheless, it was not reported.

42 . During th e period from January 23 to March 27, 2014 ,

PetitionerÓs attention was primarily directed to Mr. Bassriel .

Petitioner complained that Mr. Bassriel , when busy, asked

clients to leave and return at a later time ; was Ðfucking up

returns Ñ ; or was Ðmilking the clock.Ñ On two occasions,

Mr. Bassriel closed the off ice during business hours.

Ms. Heflin testified that th ose incidents occurred when

Mr. BassrielÓs scheduled quitting time came without Petitioner

arriving at her scheduled time. Many of PetitionerÓs complaints

regarding Mr. Bassriel were made in casual texts and emails

between Petitioner and her subordinate, Ms. Heflin. None of the

complaints had an ything to do with PetitionerÓs race or sex.

43 . On March 3, 2014, after having complied with a

client Ó s request to meet at the office on a Saturday, and after

receiving an e - mail from Petitioner admonishing him for his

failure to provide 48 - hour notice before a schedule change, the

more reserved Mr. Bassriel had finally had enough. On that

date , he emailed Petitioner to state that ÐI did not want to

work on SaturdayÓs [sic] only to help my clients who request a

Saturday appointment and when my schedule allows it I would be

able to help out the office!Ñ Mr. Bassriel also commented that

he had received complaints from six of his returning clients

regarding PetitionerÓs Ð r ude and threatening behavior.Ñ 2 /

4 4 . Mr. Bassriel closed his email by asking Petitioner to

Ðstop micro - managing us and let us take care of our clients, to

do what we do best and that is to provide the best Tax

Professional service we have provided our clients for many

years!Ñ The email , though provid ing substantial evidence of

Mr. BassrielÓs frustration, provides no evidence of any conduct

or statement directed towards PetitionerÓs race or sex.

4 5 . Other than the March 3, 2014 , incident in which

Mr. BassrielÓs frustration boiled over, t here was no evidence

that Mr. Bassriel eve r reacted negatively towards Petitioner , by

word or deed , when she admonished him for violating office

policy.

4 6 . In response to PetitionerÓs frequent complaints

regarding Mr. Tucker and Mr. Ba ssriel, both Ms. Howell and

Ms. Craft communicated with the two of them, in person and by

email, to remind them of H&R Block policies regarding dress and

attendance.

4 7 . On March 6, 2014, Petitioner received her mid - season

CSL performance review. The review contained positive

statements , though areas for improv ement were noted, directed at

Ðbuilding a collaborative and client - focused team environment . Ñ

In general, Ms. Howell determined that Petitioner

Ðinconsistently meets expectations.Ñ However, Petitioner was

seen as having positive attributes, and was encou raged to apply

to work for Respondent during the off - season . Petitioner

submitted an application to do so.

4 8 . Since Mr. TuckerÓs unscheduled, but client - requested,

office visit of January 22, 2014, Petitioner and Mr. Tucker had

gotten past their differ ences such that there were no overt

instances of animosity . However, in late February or early

March , Mr. Tucker became aware that Petitioner continued to

report his dress code and attendance violations. According to

Ms. Heflin, Mr. Tucker viewed that as a breach of their

friendship, which made him angry and unable to trust Petitioner.

That sense of distrust appears to have set the stage for the

events of late - March 2014.

49 . On March 27, 2014, Petitioner contacted Ms. Howell

late in the day to report that Mr. Tucker had Ðcursed her out.Ñ

According to Petitioner, the incident was precipitated when she

Ð remind [ ed ] him to put in his exception for today b/c he didnÓt

clock in.Ñ Petitioner reported that Mr. Tucker Ð called me a

whore, slut, asked me whose dick did I suck to get this job , Ñ

and that he was Ðwishing me dead.Ñ Ms. Heflin witnessed part of

the incident, which she described as heated, but could not

recall the specific words used by Mr. Tucker.

5 0 . Ms. Howell told Petitioner that she should not report

to work until instructed to do so by Ms. Howell , and that

Ms. Howell would go to the tax office the next morning to

discuss the incident with Mr. Tucker.

5 1 . On the morning of March 28, 2014, Ms. Howell reported

the incident of the previous day to H&R BlockÓs human resources

department. That same morning, Ms. Howell arrived at the tax

office to confront Mr. Tucker about his behavior. Ms. Howell

informed Mr. Tucker that he was on administrative leave, pending

further investigation, and that he was not to report to work

until further instruction from Ms. Howell. Ms. Howell relieved

Mr. Tucker of his office key and allowed him to pack up his

personal belongings before leaving.

5 2 . On Saturday, March 29, 2014, Ms. Heflin was working

alone at the S teeplechase office. Mr. Tucker came to the office

to talk to her about the incident. Being a close friend of

Ms. Heflin, h e apologized for letting her down. It was just

those two in the office. While there, he used the computer to

look something u p on the internet. He did not call clients or

engage in work - related activities.

5 3 . Before he could leave the office, Petitioner arrived .

She told Mr. Tucker that he was not allowed in the office and

should leave. Mr. Tucker got angry and -- as usu al -- cursed at

Petitioner. He stated that he was there to visit his friend and

refused to leave. Petition er reported the incident to

Ms. Howell by text message.

5 4 . Ms. Howell did not have her telephone with her at the

time but , after seeing the mes sage about an hour later, she

called the office. Mr. Tuck er answered the telephone.

Ms. Howell reiterated the terms of his suspension, and then went

to the office. Upon her arrival, she observed Mr. Tucker

sitting in his car in the parking lot. She app roached him,

whereupon Mr. Tucker stated that Petitioner was a whore, that he

wished Petitioner would die, and closed with the vaguely

threatening and unsettling statement that Ms. Howell would

Ðregret this decision.Ñ Mr. Tucker then left the premises.

5 5 . On the morning of March 31, 2014, Ms. Howell spoke

with the human resources department about the events of the

weekend , including Mr. TuckerÓs violation of his suspension .

The decision was made to terminate Mr. Tucker from employment

with H&R Block . On that same day, Mr. Tucker was informed that

his employment was terminated. The human resources department

contacted the Alachua County SheriffÓs Office about Mr. TuckerÓs

termination , which sent a deputy to monitor the parking lot for

the day. How Respondent could have acted more swiftly or

decisively in its termination of Mr. Tucker is hard to imagine.

5 6 . After his termination, there were no further incidents

involving Mr. Tucker. 3 /

5 7 . On April 4, 2014, Ms. Howell met with Petitioner for

he r end - of - the - season discussion, a meeting that Ms. Howell

conducted with all her managers . During that meeting,

Ms. Howell and Petitioner discuss ed employment opportunities for

the next tax season. Based on PetitionerÓs representations that

she did not w ant to return as a manager, Ms. Howell suggested

that Petitioner consider other employment opportunities with H&R

Block for the next tax season.

5 8 . The Steeplechase office met its revenue projections

for 2014 , and it was thought that Petitioner had qual ities that

could benefit the company. Though Petitioner had difficulties

at Steeplechase, Ms. Howell believed that she could be trained

for management duties in a different office environment with

different employees. Petitioner submitted an application for

off - season employment and Respondent approved her hiring . The

evidence demonstrated that, although any seasonal employee could

apply for off - season employment, only a relative few were

accepted. However, Petitioner withdrew her application shortly

af ter Mr. Tucker was terminated.

59 . On April 18, 2014, following the April 15 tax return

filing deadline , and pursuant to terms of her employment

agreement, PetitionerÓs seasonal employment came to an end, as

did that of all H&R BlockÓs other seasonal e mployees . As of

April 18, 2014, H&R Block no longer employed Petitioner.

6 0 . At no time during her period of employment with H&R

Block was Petitioner subject to discipline. She was hired at

her agreed - upon rate of pay, and received no reduction in pay

during the 2014 tax season. She was not required to change her

work hours, nor was she required to relocate. When she reported

the sexually charged statements of Mr. Tucker on March 27, 2014,

he was suspended within hours, and terminated the first busine ss

day from the date of his suspension. Petitioner served out the

contractual term of her employment without further incident.

6 1 . After the 2014 tax season, Ms. Howell received several

unsolicited reports from former H&R Block managers who shared

examp les of PetitionerÓs unprofessional behavior towards clients

and tax professionals as a CSP in years past. Further,

Ms. Heflin sent Ms. Howell an unsolicited email that placed

responsibility on Petitioner for the issues in the Steeplechase

tax office durin g the 2014 tax season. H&R Block took no action

on those reports, nor could it , since Petitioner was no longer

an employee.

6 2 . On May 22, 2014, Petitioner entered an H&R Block tax

office to access her H&R Block email account, and emailed H&R

BlockÓs hu man resources department to request the companyÓs

disciplinary files for Tucker. The company denied PetitionerÓs

request, as she was an inactive employee during the off - season

and , therefore, was not entitled to such information.

6 3 . On May 28, 2014, Petitioner entered another H&R Block

tax office and requested to use the copy machine. Petitioner

was denied access to the copy machine, because she was an

inactive employee, and, therefore, was not entitled to use the

companyÓs equipment for personal use .

6 4 . Petitioner did not reapply for employment for the 2015

tax season.

6 5 . Ms. Heflin , who is an African - American female, was

hired by Respondent to replace Petitioner as the C SL for the

Steeplechase tax office for the 2015 tax season.

Ultimate Fin dings of Fact

6 6 . At no time prior to March 27, 2014, did Petitioner

contact her supervisor or RespondentÓs human resource s

department , file a complaint, discuss with co - workers or

management, or otherwise claim that s he had been the subject of

discrimination because of h er race or sex , or make any assertion

that M r. Tucker, Mr. Bassriel, or any other employee of H&R

Block act ed in a sexually inappropriate way towards h er .

6 7 . When Petitioner reported the first incident of gender -

specific profa nity directed towards her by Mr. Tucker on

March 27, 2014 , Mr. Tucker was immediately terminated.

6 8 . There was no competent, substantial evidence adduced

at the hearing to support a finding that Petitioner was subject

to any adverse employment action, e ither as a result of the

facts set forth herein, or for any other reason. Rather,

Petitioner served out her contractual term of employment, and

was subsequently offered off - season employment with Respondent .

69 . There was no competent, substantial evi dence adduced

at the hearing that any persons who were not members of the

Petitioner Ós protected class es , i.e., African - American and

female , were treated differently from Petitioner, or were not

subject to similar personnel policies and practices. In fact ,

Petitioner was succeeded as the Steeplechase CSL by an African -

American female, Ms. Heflin.

CONCLUSIONS OF LAW

7 0 . Sections 120.569 and 120.57(1), Flo rida Statutes

(2015) , grant the Division of Administrative Hearings

jurisdiction over the subject matt er of this proceeding and of

the parties.

Standards and Procedure

7 1 . Section 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise t o

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

7 2 . Petitioner maintain s tha t Respondent discriminated

against h er on account of h er race and as a pattern of sexual

behavior and harassm ent that resulted in a sexually - abusive work

environment .

7 3 . Section 760.11(1) provides that Ð[a]ny person

aggrieved by a violation of ss. 760.0 1 - 760.10 may file a

complaint with the [FCHR] within 365 days of the alleged

violation . Ñ Petitioner timely filed h er complaint.

7 4 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

viol ation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determin ation of reasonable

cause. Ñ Fol lowing the FCHR determination of no cause,

Petitioner timely filed h er Petition for Relief requesting this

hearing.

Applicability of Federal Precedent

7 5 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Whe n Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Fl a. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

N. Am. , LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

Burden of Proof

7 6 . Petitioner has the burden of provi ng by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

7 7 . Employee s may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v .

GlobeGround N. Am. , LLC , 18 So. 3d at 22.

7 8 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

disc riminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

79 . In the absence of any direct or statistical evidence

of discriminatory inten t, Petitioner must rely on circumstantial

evidence of such intent. In McDonnell Douglas Corp oration v.

Green , 411 U.S. 792 (1973), as refined in Texas Dep artment of

C ommunity Affairs v. Burdine , 450 U.S. 248 (1981) , and

St. Mary's Honor Center v. Hicks , 5 09 U.S. 502 (1993), the

United States Supreme Court established the procedure for

determining whether employment discrimination has occurred when

employees rely upon circumstantial evidence of discriminatory

intent.

8 0 . If Petitioner is able to prove h e r prima facie case by

a preponderance of the evidence, the burden shifts to Respondent

to articulate a legitimate, non - discriminatory reason for its

employment decision. Texas DepÓt of Cm ty . Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 58 2 So. 2d 1183

(Fla. 1 st DCA 1991). An employer has the burden of production,

not persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Corr. v. Chandler ,

supra ; Walker v. NationsBank of Fl a. , N.A. , 53 F. 3d 15 48 (11th

Cir. 1995). This burden of production is "exceedingly light."

Holifield v. Reno , 115 F.3d 1555, 1564 (11 th Cir. 1997); Turnes

v. Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11 th Cir. 1994).

8 1 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Ctr . v. Hicks ,

509 U.S. at 516 - 518. In order to satisfy this final step of the

process , Petitioner must Ðshow[] directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex. Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256 ) . The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

(citations omitted) Holif ield v. Reno , 115 F.3d at 1565.

8 2 . The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful discriminatory intent. In a proceeding

under the Civil Rights Act, Ð[w]e are not i n the business of

adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision.Ñ Damon v.

Fleming Supermarkets of Fla., Inc. , 196 F.3d at 1361.

Discrimination on the Basis of Race

8 3 . The record of this proceeding contains not a scintilla

of direct evidence of any racial bias on the part of Respondent

at any level.

8 4 . Petitioner presented no statistical evidence of racial

discrimination by Respondent in its personnel decisions , either

those affecting Petitioner or otherwise .

8 5 . In order to demonstrate by circumstantial evidence

that a disciplinary decision was motivated by racial

discrimination, Petitioner must establish the prima fa cie case

that s he Ð(1) belongs to a protected class; (2) was qualified to

do the job; (3) was subjected to an adverse employment action;

and (4) the employer treated similarly situated employees

outside the class more favorably.Ñ Johnson v. Great Expressi ons

Dental Ctrs. of Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d DCA

2014) (citing McDonnell Douglas Corp. v. Green , 411 U.S. at

802) ; see also Cazeau v. Wells Fargo Bank, N.A. , ___ F. 3d ___,

2015 U.S. App. LEXIS 9657 (11th Cir. June 10, 2015) .

8 6 . The fir st t wo elements of PetitionerÓs prima facie

case have been met. Petitioner proved that, as an African -

American, s he is a member of a protected class . She further

proved that s he was qualified to hold the position of

RespondentÓs CSL in the Steeplechase o ffice.

8 7 . Petitioner completely failed to meet her burden to

demonstrate that s he was subjected to any ad verse employment

action by Respondent. She was not reprimanded, suspended,

demoted, terminated, or transferred. She suffered no reduction

in compe nsation. She was stripped of no duties. She simply

served in the position for which she was hired until her

contractual term of employment expired and , even then ,

Respondent discussed continued employment with her, an

opportunity she declined.

8 8 . Petitioner also failed to establish that other

comparably - situated employees were subject to personnel

decisions that differed from those applied to h er . Petitioner

provided no evidence that Respondent acted inconsistently with

the manner in which any employee, regardless of race, would have

been subject to its investigations and responses to PetitionerÓs

legion of complaints about the attendance and attire of the

Steeplechase CSPs, or that Respondent acted inconsistently with

the manner in which any em ployee, regardless of race, would have

been subject to work performance expectations and reviews .

89 . Furthermore, Petitioner was replaced as the

Steeplechase CSL by Ms. Heflin, a person of the same race,

color, and sex as Petitioner.

9 0 . In short , Petitioner failed to prove that she was

subject to any adverse employment decision, or that h er

treatment as an employee of Respondent differed in any material

way from the treatment afforded other employees, regardless of

their r ace. Therefore, Petitio ner failed to prove a prima facie

case of discrimination, and h er petition for relief should be

dismissed.

Discrimination on the Basis of Sex

9 1 . FloridaÓs Civil Rights Act prohibits sex - based

discrimination in two ways: by a tangible adverse employme nt

action; or by creation of a hostile workplace environment caused

by sexual harassment that is so severe or pervasive as to alter

the terms and conditions of work. Blizzard v. Appliance Direct,

Inc. , 16 So. 3d 922, 926 (Fla. 5th DCA 2009)(citing Baldwin v.

Blue Cross/Blue Shield of Alabama , 480 F.3d 1287 (11th Cir.

2007); and Thornton v. Flavor House Products, Inc . , 105 Fair

Empl. Prac. Cas. (BNA) 336 (M.D. Ala. 2008)).

9 2 . In an action based on sexual harassment Ða plaintiff

may establish a violation of Title VII by proving that the

harassment either was directly linked to the grant or denial of

an economic quid pro quo or created a hostile work environment.Ñ

Farley v. Am . Cast Iron Pipe Co. , 115 F.3d 1 548, 1551 - 1552 (11th

Cir. 1997) (citing Meritor Sav . Bank, FSB v. Vinson , 477 U.S. 57,

67 (1986)).

9 3 . In order to establish a claim based on sexual

harassment , Petitioner was required to show: (1) that s he is a

member of a protected group; (2) that s he was subjected to

unwelcome sexual harassment , such as sexual advances, requests

for sexual favors, and other conduct of a sexual nature;

(3) that the harassment was based on the sex of the employee;

(4) that the harassment was sufficiently severe or pervasive to

alter the terms and conditions of employmen t and create a

discriminatorily abusive working environment; and (5) that there

is a basis for holding the employer liable. Blizzard v.

Appliance Direct, Inc. , 16 So. 3d at 927 (citing Mendoza v.

Borden, Inc . , 195 F.3d 1238 (11th Cir. 1999 ) and Speedway

S uperamerica, L.L.C. v. Dupont , 933 So. 2d 75 (Fla. 5th DCA

2006) ) ; see also Cazeau v. Wells Fargo Bank, N.A. , 2015 U.S.

App. LEXIS 9657 at *3 ; Maldonado v. Publix Supermarkets , 939 So.

2d 290 , 293 - 294 (Fla. 4th DCA 2006).

9 4 . Petitioner , as a female, is a member of a protected

class .

9 5 . Petitioner failed to produce any persuasive evidence

to support a prima facie case that s he was subjected to

unwelcome sexual advances or harassment by Mr. Tucker,

Mr. Bass r iel, or any other employee of Respondent. No c o -

workers observed any sexually - oriented language or c onduct

directed towards Petitioner or anyone else. Petitioner never

mentioned or complained to co - workers or management about any

sexual ly charged language or conduct -- except for Mr. TuckerÓs

outbur st that led to his immediate termination .

9 6 . The requirement that the harassing conduct be severe

or pervasive enough to alter the terms or conditions of

employment contains both an objective and a subjective

component. The behavior Ðmust result in both an environment

that a reasonable person would find hostile or abusive and an

environment that the victim subjectively perceives . . . to be

abusive.Ñ Cazeau , 2015 WL 3605744, at *3 (citations omitted).

9 7 . To determine whether alleged harassment i s objectively

offensive, courts review the totality of the circumstances ,

which Ðmay include the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unrea sonably interferes with an employee's work performance. Ñ

Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993).

9 8 . ÐTitle VII is not a general civility code; therefore,

not all offensive conduct in the workplace is actionable as

sexual harassment.Ñ Colon v. Envtl. Technologies, Inc. , 184

F. Supp. 2d 1210, 1219 (M.D. Fla. 2001)(citing Oncale v.

Sundowner Offshore Servs ., Inc. , 523 U.S. 75, 80 Î 81 (1998)).

The mere Ðutterance of an . . . epithet,Ñ Ðdiscourtesy or

rudeness,Ñ or ÐÒsimple teasing,Ó offh and comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the Òterms and conditions of

employment.ÓÑ Faragher v. City of Boca Raton , 524 U.S. 775,

787 - 788 (1998) .

99 . Petitioner failed to prove that Mr . TuckerÓs actions,

which were directed at what he perceived to be PetitionerÓs

overzealous enforcement of office rules, created office

conditions that were sufficiently severe or pervasive to alter

the terms and conditions of employment and create a

discr iminatorily abusive working environment. She did not

resign her position, which might raise issues of constructive

discharge. Rather, Petitioner willingly completed the term of

her contract of employment with Respondent.

10 0 . Finally, the evidence in this case demonstrates that

Petitioner failed to avail herself of the protections afforded

by H&R BlockÓs written anti - discrimination and anti - harassment

policy, and did not bring her alleg ations of sexually -

inappropriate words on the part of Mr. Tucker to the attention

of Ms. Howell, to H&R BlockÓs human resources department, to the

H&R Block toll - free hotline, or to [e-mail].

101. The Supreme Court has recognized a defense to a

charge of discrimination that is available to employers when the

s ubject of the alleged discrimination has failed to comply with

policies designed to provide redress for the discriminatory acts

or conduct giving rise to the charge, holding that:

When no tangible employment action is taken,

a defending employer may raise an

affirmative defense to liability or damages,

subject to proof by a preponderance of the

evidence. The defense comprises two

necessary elements: (a) that the employer

exercised reasonable care to prevent and

correct promptly any sexually harassing

beha vior, and (b) that the plaintiff

employee unreasonably failed to take

advantage of any preventive or corrective

opportunities provided by the employer or to

avoid harm otherwise. While proof that an

employer had promulgated an antiharassment

policy with complaint procedure is not

necessary in every instance as a matter of

law, the need for a stated policy suitable

to the employment circumstances may

appropriately be addressed in any case when

litigating the first element of the defense.

And while pr oof that an employee failed to

fulfill the corresponding obligation of

reasonable care to avoid harm is not limited

to showing an unreasonable failure to use

any complaint procedure provided by the

employer, a demonstration of such failure

will normally su ffice to satisfy the

employer's burden under the second element

of the defense. No affirmative defense is

available, however, when the supervisor's

harassment culminates in a tangible

employment action, such as discharge,

demotion, or undesirable reassign ment .

(internal citation omitted).

Faragher v. City of Boca Raton , 524 U.S. at 707 - 708.

10 2 . PetitionerÓs failure to seek redress under the H&R

Block policy, combined with the lack of any tangible adverse

employment action, satisfies the elements nec essary to trigger

the affirmative defense described in Faragher .

10 3 . T here is not a shred of corroborative evidence to

support PetitionerÓs after - the - fact claims of sexual haras sment

or creation of a sexually - hostile work environment. For the

reasons s et forth herein, Petitioner failed to meet h er burden

of proof that s he was the subject of sex - based discrimination,

and h er petition for relief should be dismissed.

Retaliation

10 4 . In her Employment C omplaint of Discrimination,

Petitioner checked the box for Ðretaliation.Ñ At the

commencement of the final hearing, she indicated that she was

maintaining her claim of retaliation. However, after having

heard two days of testimony, and having received and reviewed

hundreds of pages of documents in evide nce, there remains such a

complete lack of any evidence of retaliation in this case that

the undersigned is unable to even determine what facts underlie

PetitionerÓs claim. Nonetheless, in order to ensure that the

issue has received fair consideration, an analysis of the

applicable standards is warranted.

105 . A claim of retaliation involves section 760.10(7),

which provides that:

It is an unlawful employment practice for an

employer, . . . to discriminate against any

person because that person has oppos ed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

106 . ÐSection 760.1 0(7), Florida Statutes, is virtually

identical to its Federal Tit le VII counterpart, 42 U.S.C.

§ 2000e - 3(a). The FCRA [Florida Civil Rights Act] is patterned

after Title VII; federal case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision In t'l, Inc. , 942 So. 2d 986,

989 (Fla. 5th DCA 2006) ( citing Guess v. City of Miramar , 889 So.

2d 840, 846, n.2 (Fla. 4th DCA 2005) ) .

107 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh

Circuit has held that:

[t]he statute's participation clause

Ð protec ts proceedings and activities which

occur in conjunction with or after the

filing of a formal charge with the EEOC .Ñ

. . . The opposition clause, on the other

hand, protects activity that occurs before

the filing of a formal charge with the EEOC,

such a s submitting an internal complaint of

discrimination to an employer, or informally

complaining of discrimination to a

supervisor . (citations omitted) .

Muhammed v. Audio Visual Servs. Group , 380 Fed. Appx. 864, 872

(11th Cir. 2010). The division of 760.1 0(7) into the

Ðopposition clauseÑ and the Ðparticipation clauseÑ is recognized

by Florida state courts. See Blizzard v. Appliance Direct,

Inc. , 16 So. 3d at 925 - 926.

108. In explaining the difference between the two clauses,

the Second District Court of Appeal has held that:

FCRA's Ð opposition clause [protects]

employees who have opposed unlawful

[employment practices]. Ñ . . . However,

opposition claims usually involve

Ð activities such as Ò making complaints to

management, writing critical letters to

c ustomers, protesting against discrimination

by industry or by society in general, and

expressing support of coworkers who have

filed formal charges. ÓÑ . . . Cases

involving retaliatory acts committed after

the employee has filed a charge with the

relevant administrative agency usually arise

under the participation clause.

Carter v. Health Mgmt. Assoc. , 989 So. 2d 1258, 1263 (Fla. 2d

DCA 2008).

109 . There has been no allegation or evidence of

retaliatory acts committed by Respondent after Petitioner file d

her claim of discrimination on July 30, 2014. By that time, her

contract of employment had expired, and she was no longer an

employee of H&R Block . Therefore, PetitionerÓs claim does not

fall under the participation clause.

110 . C laims under the oppo sition clause are subject to a

different standard of protection from those brought under the

participation clause.

Opposition clause acts, however, are taken

outside of the context of a government

review and, instead, are taken in the

context of the ordi nary business environment

and involve employers and employees as

employers and employees.

EEOC v. Total Sys. Servs. , 221 F.3d at 1176.

111 . The record of this proceeding contains no direct or

statistical evidence of any retaliation on the part of

Resp ondent as a result of PetitionerÓs opposition to acts of

discrimination. Until Mr. TuckerÓs March 27, 2014 , outburst,

PetitionerÓs complaints to management were based exclusively on

incidents of non - compliance with office policies, and with the

occasional ly rude and/or insubordinate responses from CSPs under

her supervision to her efforts to enforce strict adherence to

those policies. PetitionerÓs complaints had nothing to do with

discrimination. As to Mr. TuckerÓs profanity - laced outburst,

rather than r etaliating against Petitioner for her report of the

outburst, Respondent acted to immediately terminate the

transgressor.

112 . In order to establish a prima facie case of

retaliation under the opposition clause under McDonnell Douglas ,

Petitioner must demonstrate by a preponderance of the evidence

Ð (1) that [she] engaged in statut orily protected expression;

(2) that [she] suffered an adv erse employment action; and

(3) there is some causal relationship between the two events.Ñ

(citations omitted) . Holi field v. Reno , 115 F.3d at 1566; see

also Muhammed v. Audio Visual Servs. Group , 380 Fed. Appx. at

872; Tipton v. Canadian Imperial Bank , 872 F.2d 1491 (11th Cir.

1989).

113. T he record is devoid of evidence to demonstrate what

Ðstatutorily protected exp ressionÑ underlies Peti tionerÓs claim

of retaliation . To the extent the Ð expression Ñ is related to

her myriad of complaints of tardiness, dress code violations,

and general lack of due regard for her authority, t hat is simply

not statutorily - protected exp ression . Her allegations have

nothing to do with whether anyone affiliated with H&R Block

engaged in w rongful conduct as a result of her opposition to

acts of discrimination directed against herself or others.

114 . Furthermore, as set forth in detail ab ove, there was

no evidence that Petitioner suffered any adverse employment

action as a result of any action or lack thereof on the part of

Respondent.

115 . For the reasons set forth herein, Petitioner did not

meet her burden to establish a prim a facie case of

discrimination by retaliation.

Conclusion

116 . Section 760.10 is designed to eliminate workplace

discrimination. Petitioner failed to put forth any credible

evidence that Respondent discriminated against her in any way.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, H and R

Block Enterprises , did not commit any unlawful employment

practice as to P etitioner, Mary Ann De Matas , and dismissing the

Petition for Relief filed in FCHR No. 201 4 - 0 1148 .

DONE AND ENTERED this 12 th day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Di vision 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 12 th day of Oct ober , 201 5 .

ENDNOTE S

1/ Exactly how Mr. Tucker would have been able to log an

unexpected appointment into the Ðappointment managerÑ was not

explained by Petitioner , nor was there any reason given, other

than rote adherence to office Ðprocedures,Ñ for d iscouraging or

penalizing conduct that was clearly motivated by a desire to

meet the needs of H&R Block clients.

2/ Mr. BassrielÓs statement regarding PetitionerÓs behavior

around clients was substantiated by Ms. Heflin, who described an

incident in whic h Petitioner hovered over Mr. BassrielÓs desk

when he was having a teleconference with a client at the

clientÓs request, causing him to cut the call short, after which

Petitioner admonished him for his unscheduled visit to the

office.

3 / Several weeks af ter Mr. TuckerÓs termination, Petitioner was

the victim of an assault in her home. There have been no

arrests in th at case. During the course of this proceeding,

Petitioner sought to discuss the assault, in the apparent hope

that the undersigned would dr aw an inference that the assault

had something to do with Mr. Tucker or Respondent. All

objections to testimony and evidence of the unsolved assault

were sustained.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relation s

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Erin L. Malone, Esquire

Phelps Dunbar LLP

100 South Ashley Drive

Suite 1900

Tampa, Florida 33602

(eServed)

Dennis M. McClelland , Esquire

Phelps Dunbar LLP

100 South Ashley Drive

Suite 1 900

Tampa, Florida 33602

(eServed)

Mary Ann De Matas

6512 Southwest 53rd Avenue

Gainesville, Florida 32608

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eSer ved)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Fina l Order in this case.