Cases

This was a decision by the Third District Court of Appeals.Claimant suffered accident on the job and sought payment of workers' compensation benefits which were paid by the employer/carrier. Thereafter, the employer terminated the claimant's employment because of "long term absenteeism." Civil cause of action filed pursuant to Section 440.205, Florida Statutes, alleging that the claimant was terminated by reason of her valid claim for workers' compensation benefits following her on-the-job injury. Jury verdict returned in favor of claimant and this appeal was taken.

The basis of the appeal was that the court should have granted a Motion for Summary Judgment and Motion for Directed Verdict in favor of the employer prior to the case being referred to a jury for determination. Court determined that a directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, reviewing the evidence in light most favorable to the non-moving party. The court determined that generally speaking, an employer does not announce or state in writing that it is discharging an employee because he or she has filed a workers' compensation claim.  Accordingly, employee actions for a retaliatory discharge under Section 440.205, F.S., are often ill-suited for final disposition on a Motion for Summary Judgment.  Court affirmed lower court's denial of Motion for Directed Verdict or Motion for Summary Judgment.

The employer is not estopped from asserting workers' compensation immunity where, in compensation proceedings, the employer asserted that there was no work accident causing injury and the accident occurred outside the scope of employment.  An employer is not estopped from asserting workers' compensation exclusivity merely because it had denied compensability of an alleged workplace injury.  Employer is entitled to litigate whether a compensable accident occurred in a workers' compensation forum.

(4th DCA) Lower court granted employer/carrier's Motion for Summary Judgment in regards to employee's claim of retaliatory discharge under Section 440.205, Florida Statutes.  Basically, the lower court found no prima facie case of retaliation because the employer terminated the employee before the employee filed a claim for workers' compensation benefits.  Because a material issue of fact existed as to the employer's reason for discharging the employee, court determined that summary judgment was not proper at this juncture of the case.  Accordingly, lower courts granting of final summary judgment was reversed.

There was a dispute in regards to why the claimant/employee was terminated by the employer.  In order to make a prima facie case of retaliation, a plaintiff must prove the following three elements: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.  In order to establish a claim under Section 440.205, F.S., the employee's pursuit of workers' compensation need not be the only reason for discharge.

The fact that the employee did not file a formal claim for workers' compensation benefits until after his termination does not automatically preclude a claim for retaliatory discharge.  Accordingly, the plaintiff in this case established a prima facie case by proving the protected activity and the negative employment action were not completely unrelated. The burden then shifts to the employer to offer a legitimate reason for the adverse employment action.  The employer testified that the claimant was discharged because he threatened a co-worker.  The plaintiff denied such activity.  Accordingly, there was a genuine issue of material fact precluding the entry of a summary judgment.

In order to establish a prima facie case of a workers' compensation retaliation claim under Section 440.205, Florida Statutes, the plaintiff must prove the following elements: 1) a statutorily protected activity, 2) an adverse employment action, and 3) a causal connection between the statutorily protected activity and the adverse employment action.  Defendant filed a Motion to Dismiss plaintiff's second amended complaint for failure to plead a facially sufficient retaliation claim.  There was no question in this case that elements 1 and 2 were sufficiently pled.  The question was whether the causal connection element was sufficiently pled. 

Court determined that the temporal connection between a protected actitivy and the adverse employment action in itself might be sufficient to establish a causal connection. However, the temporal time proximity must be close.  In this case, there was an allegation of temporal proximity between the employer's knowledge of the protected activity and the adverse employment action that was sufficient evidence of causality to establish a prima facie claim of retaliation.  Lower court's granting of dismissal for failure to plead a cause of action.

Corrected opinion.  Original opinion at 41 FLW D2096.  Previous opinion withdrawn.

In retaliatory discharge case for seeking workers' compensation benefits, appellate court affirmed lower court's finding of liability.  However, in light of the absence of medical evidence that the employer's conduct caused the employee's medical condition to worsen or caused the employee to suffer past or future psychological harm, the court concluded that the jury's award of $750,000 was excessive. The fact that the employee cried on the stand as noted by his attorney at oral argument is not sufficient to establish such a causal relationship.

The failure to grant a Motion for Remittitur constituted an abuse of discretion.  Case remanded to trial court to determine a remittitur amount or order a new trial on damages if the party adversely affected by the remittitur does not agree to the remitted amount.  In addition, post-verdict interest is not awardable for the period after the verdict but before the judgment.

The lower court's order denying leave to assert a claim for punitive damages reversed.  There was a reasonable showing by evidence of record or proffered by the claimant which could provide a reasonable basis for recovery of such damages.

Court also reversed order of lower court which held that the employee's offer of judgment pursuant to Section 768.79, Florida Statutes, was invalid.  This offer of judgment statute is inapplicable to cases where the plaintiff sought both damages and equitable relief.  Court determine in this case that the claim was for damages only and accordingly, the offer of judgment statute applied.  There was no equitable relief that was ever at issue in the discovery or trial of this matter.

This case involved a cause of action for retaliatory discharge for seeking workers' compensation benefits. Court reversed a $750,000 jury award as being excessive because of the absence of medical evidence that the employer's conduct caused the employee's medical condition to worsen or caused the employee to suffer past or future psychological harm.  The fact that the employee cried on the stand while testifying was not sufficient to establish a causal connection between the conduct of the employer and the claimed medical condition suffered by the employee.  The lower court's failure to grant the Motion for Remittitur constituted an abuse of discretion.  Case remanded to trial court to determine a remittitur amount or order a new trial on damages.  Finding in regards to liability of defendant by the jury affirmed.

Court determined also that the judge improperly awarded post-verdict interest for the period after the verdict and before the entry of a judgment. 

Lower court's denial of leave of plaintiff to assert a claim for punitive damages reversed.  There was a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of punitive damages.

Lower court's order finding invalid the employee's offer of judgment pursuant to Section 768.79, F.S. reversed. Offers of judgment only apply to civil actions for damages and does not relate to claims for damages and equitable relief.  In this case, the "real issue" related to a claim for compensation and accordingly, the offer of judgment provisions including the award of attorney fees were applicable.  In determining whether the offer of judgment provisions applied, the court's determination of the "real issue" is the test.  If the real issue included equitable relief, then the offer of judgment provisions would not apply.

On Motion for Clarification, original opinion at 41 FLW D557. Previous opinion withdrawn which was dated March 2, 2016. 

Cause of action filed by injured worker against employer because of an allegation that the employer had unlawfully retaliated against the claimant for filing a workers' compensation claim in violation of Section 440.205, Florida Statutes.  Court determined that it was error to award the claimant back pay and front pay where the injured worker was physically unable to work prior to and after the employer's alleged retaliation.  Claimant's expert testified calculating back pay and front pay based on the claimant's being able to physically work and if the claimant was physically not able to work, then the claimant's damages would be zero. The purpose of the award in lost wages to a wrongfully discharged employee is to make an employee whole by restoring him to the economic position that he would have occupied but for the wrongful discharge.  To be entitled to an award of lost wages, the employee must be ready, willing and able to accept employment.  Thus when a plaintiff is unable to return to work for an independent reason not caused by the employer, lost past and future wages and benefits may not be awarded.

Plaintiff filed retalitory discharge cause of action against employer under Section 440.205, F.S.  Final summary judgment was entered in favor of the defendant employer.  On appeal, summary judgment reversed since there existed genuine issues of material fact precluding entry of a summary judgment.

Court determined that the standard of review for an order granting a Motion for Summary Judgment is de novo.  Summary judgment is proper only if 1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered and 2) the moving party is entitled to a judgment as a matter of law.  If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.

Section 440.205, F.S., precludes an employer from discharging, threatening to discharge, intimidating or coercing any employee by reason of such an employee's valid claim for compensation or attempt to claim compensation under the workers' compensation law.  In order for an employee to prove a violation of this provision, three elements are required:  1) the employee engaged in statutorily protective activity 2) An adverse employment action occurred; and 3) the adverse action and the employee's protected activity were causally related.  In order to establish a claim under Section 440.205, F.S., the employee's pursuit of workers' compensation need not be the only reason for discharge.  A cause of action under this provision may exist even if there may also be other reasons for a discharge.  The actual discharge is not a condition for such a claim since there is a cause of action for intimidation or coercion even in the absence of a discharge.  The employee need not establish a specific retalitory intent in order to prevail.  Once a plaintiff establishes a prima facie case for proving a cause of action, the burden of proof shifts to the employer to proffer a legitimite reason for the adverse employment action.

The court determined that there were genuine issues of fact concerning the liability of the employer for a Section 440.205, F.S. cause of action if the reasons for discharging the claimant were questionable.  The employer asserted that the injured worker was discharged because he failed to obtain a report from his authorized treating physician concerning his medical condition and fitness to return to work.  According to the employer, this amounted to neglect of duty warranting discharge.  However, the obtaining of medical information on the claimant's ability to return to work following a workers' compensation accident is not the responsibility of the injured worker but rather the employer.  Basically, the employer discharged the injured worker for allegedly failing to perform a function that was the obligation of the employer.  There was also evidence of the fact that the doctor's report was in fact sent to the employer. 

The injured worker was also discharged by the employer allegedly because he was absent from work without leave.  However, the employee testified that because of medication that he was taking, he could not perform his responsibility on the job and the supervisor instructed the claimant to leave work and return home.

There was also emails in the employer's records of the negative attitude toward the injured worker by his supervisory personnel.  The case was referred to the state for the investigation of alleged insurance fraud.  Based upon this evidence, the court determined that the injured worker's discharge be determined by a jury to be pretextual.

In support of the Motion for Summary Judgment, the employer asserted that a significant period of time lapsed between the claimant's filing of a workers' compensation claim and his discharge thus proving that there was no causal connection between the claimant's protected activity of filing a workers' compensation claim and the adverse employment action of discharging him.  Notwithstanding this, the court determined that the plaintiff/injured worker would still be entitled to a trial. 

The court determined that employee actions for a retalitory discharge claim under Section 440.205, F.S., are often ill suited to final disposition on a Motion for Summary Judgment.  Since the employer failed to establish the non-existence of a material fact concerning whether the injured worker's discharge was causally related to his filing of a workers' compensation claim, it was error to grant the Summary Judgment in favor of the employer in this instance.

Claimant filed a retaliatory discharge civil cause of action against employer.  Appellate court determined that it was error for the lower court to enter Order of Summary Judgment in favor of employer where employee's response to the Motion for Summary Judgment contained opposing evidence sufficient to reveal a genuine issue of material fact.

The pre-suit notice requirements of Section 768.28(6), Florida Statutes, do not apply to causes of action brought against the state under Section 440.205, Florida Statutes.  Supreme Court determined that by the enactment of Section 440.205, Florida Statutes, actions for workers' compensation retaliation are authorized against the state and any of its subdivisions thereby waiving soveriegn immunity for workers' compensation retaliation claims when the state and its subdivisions are acting as employers.  There is no reference in Section 440.205, Florida Statutes, to any notice requirements as referenced in Section 768.28, Florida Statutes, related to tort claims against the state.  Supreme Court reversed the decision in the cases of Kelly v. Jackson County Tax Collector, 745 So. 2d 1040(Fla. 1st DCA 1999) and Osten v. City of Homestead, 757 So. 2d 1243(Fla. 3rd DCA 2000).

In order to prevail in a retaliatory discharge claim under Section 440.205, Florida Statutes, the employee must prove 1) he engaged in a statutorily protected activity; 2) an adverse employment action occurred; 3) the adverse action was causally related to the employee’s protected activity. The protected activity in this case was the claimant’s claim for workers’ compensation benefits. Adverse employment action involved the employer’s unwillingness to re-hire the claimant after the filing of a claim for benefits. A close temporal proximity between the protected activity and the adverse employment action is sufficient circumstantial evidence of a causal connection for purposes of proving a prima facie case. Appellate court (3rd DCA) determined that there were sufficient conflicts in the evidence precluding the award of summary judgment in favor of the employer.

Employer did not institute a drug free workplace program in accordance with Section 440.102, Florida Statutes. Court determined that a wrongful discharge cause of action for violation of Section 440.102, Florida Statutes, could not be maintained by the plaintiff/employee and accordingly, lower court’s summary judgment in favor of employer affirmed on appeal.

The adoption of a Section 440.102 Drug Free Workplace Program is voluntary. An employer who elects not to operate a drug free workplace program under Section 440.102, Florida Statutes, is not prohibited from conducting drug testing as was done in this instance. The plaintiff employee had alleged that drug testing in the workplace could only be accomplished by the adoption of a Section 440.102, Florida Statutes, Drug Free Workplace Program. Had a Section 440.102, Florida Statutes, Drug Free Workplace Program been adopted by the employer, the employer would have been required to provide its employees a complete notice of such as required in Section 440.102(3), Florida Statutes. Since no such program was adopted in this instance, there was no requirement for such complete notice of the program.

Eleventh Circuit Court of Appeal from the U.S. District Court for the Southern District of Florida. Federal court determined that the release language in a workers’ compensation settlement agreement between the employer and employee was not sufficiently clear to absolve the employer of a retaliatory discharge claim where it was not clear from the language of the release whether the employee intended to release his retaliatory discharge claim under Section 440.205, Florida Statutes. Under Florida law, a general release of benefits does not necessarily release a retaliatory discharge claim without evidence of intent by the claimant to do so. The court in this case did not say that a retaliatory discharge claim could never be disposed of through the use of a general settlement agreement in a workers’ compensation context. However, the facts in this case and the general release entered into did not support the ultimate conclusion that the settlement effectively settled the retaliatory discharge claim.

The JCC’s order striking plaintiff’s demand for a jury trial also deemed to be error. In an action for damages for retaliatory discharge under the workers’ compensation statute, there is a right to jury trial. In retaliatory discharge action, attorney’s fees are not awardable against an employer in an action for retaliatory discharge.

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Trial court entered summary judgment in retaliatory discharge case under Section 440.205, Florida Statutes, on the ground that the plaintiff made neither a valid claim for compensation nor attempted to claim compensation under the workers