42
Fla. L. Weekly D574aTop of Form

Employer-employee
relations — Retaliation for filing workers’ compensation claim — Trial court
erred in dismissing plaintiff’s claim against former employer alleging workers’
compensation retaliation on basis that plaintiff failed to plead a facially
sufficient claim — Allegations of complaint were sufficient to establish that
a statutorily protected activity, plaintiff’s request for workers’ compensation
benefits, and the adverse employment action, the reduction in plaintiff’s hours
and subsequent termination of employment, were not completely unrelated

JULIE
ATHA, Appellant, v. ALLEN P. VAN OVERBEKE, D.M.D., P.A., a Florida Corporation,
Appellee. 2nd District. Case No. 2D16-131. Opinion filed March 10, 2017. Appeal
from the Circuit Court for Hillsborough County; Robert A. Foster, Jr., Judge.
Counsel: Jeffrey E. Appel and Claude McEuen Harden, III, of Appel Harden Law
Group, Lakeland, for Appellant. S. Gordon Hill and Jeffrey J. Wilcox of Hill,
Ward & Henderson, P.A., Tampa, for Appellee.

(SILBERMAN,
Judge.) Julie Atha seeks review of the order dismissing her second amended
complaint against her former employer, Allen P. Van Overbeke, D.M.D., P.A.,
with prejudice. The trial court determined that Atha failed to plead a facially
sufficient violation of section 440.205, Florida Statutes (2011), for workers’
compensation retaliation. We conclude that the complaint as a whole pleaded a
legally sufficient violation of section 440.205 and reverse.

Florida
Rule of Civil Procedure 1.110(b) provides that in order to be legally
sufficient, a complaint must contain “a short and plain statement of the
ultimate facts showing that the pleader is entitled to relief.” See also
Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc.,
137 So. 3d 613, 615 (Fla. 2d DCA 2014). In ruling on a motion to dismiss for
failure to plead a facially sufficient claim, the trial court is limited to a
consideration of the allegations within the four corners of the complaint and
is required to accept those allegations as true. Id. The court’s
dismissal of a complaint for failure to state a cause of action is reviewed de
novo. Id.

Section
440.205 provides, “No employer shall discharge, threaten to discharge,
intimidate, or coerce any employee by reason of such employee’s valid claim for
compensation or attempt to claim compensation under the Workers’ Compensation
Law.” To establish a prima facie case of workers’ compensation retaliation
under section 440.205, 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. Andrews v. Direct Mail Express, Inc., 1 So. 3d 1192,
1193 (Fla. 5th DCA 2009); Russell v. KSL Hotel Corp., 887 So. 2d 372,
379 (Fla. 3d DCA 2004).

The
operative complaint in this case is Atha’s second amended complaint. Atha
alleged that she had worked full time for Van Overbeke as a dental assistant
since June 2009. On November 21, 2012, she suffered an injury to her right hand
and elbow at work. Atha requested medical treatment and payment for lost wages
under the Workers’ Compensation Act. Van Overbeke’s insurance carrier evaluated
Atha’s claim and authorized medical treatment for her work-related injuries on
November 27, 2012.

Atha
had surgery on February 18, 2013, and she received temporary disability
benefits under the Act from the time of surgery through her recovery. Atha’s
physician released her to return to full-time work as a dental assistant on
June 6, 2013. Van Overbeke refused to return Atha to full-time status and
offered her only one shift per week. Three weeks later, Van Overbeke terminated
Atha’s employment despite the fact that it still had a position available that
Atha could perform.

The
second amended complaint alleged that Atha’s request for workers’ compensation
benefits constituted statutorily protected activity, and there is no dispute
that Atha met the pleading requirement for the first element. As for the second
element, Van Overbeke concedes that the reduction in hours and subsequent
termination from employment constitute adverse employment actions.

It
is the third element, or the causal connection element, that is at issue here.
A plaintiff can establish the causal connection element “by showing the
protected activity and the adverse action are not completely unrelated.” Ortega
v. Eng’g Sys. Tech., Inc., 30 So. 3d 525, 529 (Fla. 3d DCA 2010); see
also Russell, 887 So. 2d at 379. The temporal connection between the
protected activity and the adverse employment action in itself might be
sufficient to establish a causal connection, but the temporal proximity must be
“close.” Ortega, 30 So. 3d at 529 (quoting Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004)); see also Edwards v. Niles Sales
& Serv., Inc., 439 F. Supp. 2d 1202, 1229 (S.D. Fla. 2006) (“The cases
that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the
temporal proximity must be ‘very close.’ ” (quoting Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001))).

In
her second amended complaint, Atha made the following additional allegations to
establish the causal connection element:

12. Immediately following her
injury, however, [Van Overbeke] began an unlawful course of intimidation and
coercion by intentionally refusing to allow [Atha] to continue to work despite
having work available that [Atha] was able to perform.

. . . .

18. [Van Overbeke’s] action
of discharging [Atha] was in retaliation for [Atha] engaging in her statutorily
protected right to workers’ compensation benefits and in violation of Section
440.205, Florida Statutes (2011).

Taken
in conjunction with the ultimate facts alleged in the remainder of the second
amended complaint, Atha’s allegations can be read to establish that Van
Overbeke was aware of her request for workers’ compensation benefits from the
time she stopped working to obtain treatment for her work-related injuries.
From that time until it terminated her employment, Van Overbeke engaged in
actions that demonstrated a negative attitude toward Atha’s workers’
compensation claim. When Atha was released to return to full-time work, Van
Overbeke reduced her hours and then terminated her employment in retaliation
for filing her workers’ compensation claim.

We
conclude that these allegations, which we are required to accept as true, are
sufficient to establish that the statutorily protected activity (Atha’s request
for workers’ compensation benefits) and the adverse employment action (the
reduction in hours and subsequent termination from employment) are not
completely unrelated.1 Cf. Hornfischer v. Manatee
Cty. Sheriff’s Office, 136 So. 3d 703, 709-10 (Fla. 2d DCA 2014) (holding
that the plaintiff established the causal connection element due to “the
questionable nature of the reasons offered for [the plaintiff’s] discharge,
together with the e-mails reflecting a negative attitude by the [defendant’s]
agents toward [the plaintiff] and his claims”). Atha thus pleaded a legally
sufficient violation of section 440.205, and the trial court erred by
dismissing her second amended complaint with prejudice.

Reversed
and remanded. (CASANUEVA and SLEET, JJ., Concur.)

__________________

1In
light of our decision, we need not address Atha’s argument that the temporal
connection between Atha’s request for workers’ compensation benefits and the
reduction in hours and subsequent termination from employment in itself is
close enough to establish a causal connection.

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