Employer-employee
relations — Termination of employment in retaliation for filing workers’
compensation claim — Error to award employee back pay and front pay on claim
that employer unlawfully retaliated against him for filing workers’
compensation claim where employee was physically unable to work prior to and
after employer’s alleged retaliation

CATERPILLAR LOGISTICS SERVICES, INC.,
Appellant/Cross-Appellee, vs. RUDOLF AMAYA, Appellee/Cross-Appellant. 3rd
District. Case Nos. 3D13-2866 & 3D13-1036. L.T. Case No. 09-89750. Opinion
filed March 02, 2016. Appeals from the Circuit Court for Miami-Dade County,
Marc Schumacher, Judge. Counsel: Sedgwick LLP, and Gordon James III, Robert C.
Weill, and Lenore C. Smith (Fort Lauderdale); Perez & Rodriguez, P.A., and
Javier J. Rodriguez, for appellant/cross-appellee. Ross & Girten, and Lauri
Waldman Ross and Theresa L. Girten; Gonzalo R. Dorta, P.A., and Gonzalo R.
Dorta; Roderick V. Hannah, Esq., P.A., and Roderick V. Hannah (Plantation); The
Law Office of Pelayo Duran, P.A., and Pelayo M. Duran, for
appellee/cross-appellant.

(Before ROTHENBERG, LAGOA, and FERNANDEZ, JJ.)

(PER CURIAM.) Caterpillar Logistics Services, Inc., appeals
a final judgment entered in favor of Rudolf Amaya following a jury’s verdict
awarding Amaya back pay and front pay on his claim that Caterpillar unlawfully
retaliated against him for filing a workers’ compensation claim in violation of
section 440.205, Florida Statutes (2008) (“retaliation claim”). Because the
record demonstrates that Amaya was not physically able to work prior to and
after Caterpillar’s alleged retaliation, and as such, Caterpillar’s retaliation
did not cause Amaya any economic damages, we reverse the final judgment and
remand with directions to enter judgment in favor of Caterpillar.

Amaya suffered an on-the-job injury to his back and knee
while working at Caterpillar’s facility on August 22, 2008. Shortly thereafter,
he filed a workers’ compensation claim. On November 11, 2008, Dr. Epstein, the
physician who treated Amaya for his back injury, placed Amaya on “no work”
status, and at that point, Amaya began to receive temporary total disability
(“TTD”) benefits from Caterpillar’s workers’ compensation carrier. The
following day, November 12, 2008, Caterpillar indefinitely suspended/discharged
Amaya. After being discharged by Caterpillar, Amaya also was placed on “no
work” status by Dr. Dennis, the physician who treated Amaya for his knee
injury. Although Amaya remained on “no work” status due to his back injury, Dr.
Dennis temporarily upgraded Amaya’s status relevant to his knee injury to
sedentary work, but he quickly returned Amaya to the originally imposed “no
work” status. Amaya received workers’ compensation TTD benefits until
mid-October 2010, and he settled his workers’ compensation claim in
late-October 2010.

Amaya’s retaliation claim was tried before a jury starting
in October 2012. Over several days, Amaya testified that Caterpillar harassed
and retaliated against him after he filed his workers’ compensation claim.
Amaya also presented expert testimony in support of his economic damages: lost
back pay and benefits, lost front pay and benefits, and future psychological
and psychiatric expenses.

Amaya’s psychologist, Dr. Vasquez, testified that Amaya
suffers from a major depressive disorder and a generalized anxiety disorder.
Dr. Vasquez testified that these disorders were caused by the harassment and
retaliation Amaya suffered at Caterpillar and that Amaya has not responded to
numerous medications. Dr. Vasquez also opined that Amaya cannot presently work
due to his psychological damage and that he will need further psychological and
psychiatric treatment.

Although Caterpillar’s economic expert calculated Amaya’s
back pay and front pay, he explained that his calculations were based on Amaya
being able to physically work and that Amaya’s damages would be zero if Amaya
was and continues to be unable to physically work. It is undisputed that the
“no work” status for Amaya’s physical injuries imposed by Dr. Epstein and Dr.
Dennis continued through trial, and that Amaya has not been cleared of the “no
work” status for his physical injuries by either Dr. Epstein or Dr. Dennis as
of the date of trial.

The jury returned a verdict finding that Caterpillar took
adverse employment action against Amaya for filing a valid workers’
compensation claim and that Caterpillar would not have undertaken the same
employment action for reasons apart from Amaya’s workers’ compensation claim.
Based on these factual findings, the jury addressed Amaya’s damages and awarded
Amaya $79,280 for lost back pay and benefits and $537,847 for future lost wages
and benefits, but it awarded no damages for emotional distress and mental
anguish or future psychological/psychiatric expenses.

Caterpillar filed several post-trial motions, including a
motion for judgment in accordance with its motion for a directed verdict (“JNOV
motion”) on Amaya’s retaliation claim and a motion for setoff. The trial court
denied Caterpillar’s JNOV motion as to the retaliation claim but granted the
motion for setoff by reducing the back pay award by all amounts Amaya received
from his workers’ compensation carrier. Thereafter, the trial court entered a
final judgment in favor of Amaya and against Caterpillar in the amount of
$571,883.64. Caterpillar’s appeal followed.1

Caterpillar contends that, as a matter of law, Amaya is not
entitled to an award of back pay or front pay because Amaya was physically
unable to work at all times immediately prior to and following the alleged
retaliatory discharge, and therefore, Amaya’s claim that he was psychologically
unable to work due to Caterpillar’s retaliation could not be the but-for cause
of Amaya’s past or future lost wages and benefits. Because Amaya was
compensated for his on-the-job physical injuries by workers’ compensation,
Amaya was placed on and continued to be on “no-work” status due to his physical
injuries up to and including the time of trial, and the jury denied Amaya’s
claims for emotional distress and mental anguish and for future
psychological/psychiatric expenses, we agree with Caterpillar that Amaya was
not entitled to lost back or future pay and benefits.

The purpose of awarding lost wages to a wrongfully
discharged employee is to make the employee whole by restoring him to the
economic position he would have occupied but for the wrongful discharge.
Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988); Aery
v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 914 (Fla. 4th DCA 2013).
Lost wages can include back pay, front pay, or both. Aery, 118 So. 3d at
914. Back pay includes any amounts the employee would have earned between the
wrongful discharge and the date of trial, less any amounts earned between the
wrongful discharge and the trial. Aery, 118 So. 3d at 914. In contrast,
front pay is “money awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement.” Aery, 118 So.
3d at 914-15 (quoting Pollard v. E.I. du Pont de Nemours & Co., 532
U.S. 843, 846 (2001)); see also O’Neal v. Fla. A & M Univ. ex
rel. Bd. of Trs. for Fla. A & M Univ., 989 So. 2d 6, 12 n.3 (Fla. 1st
DCA 2008) (noting that when reinstatement of the wrongfully discharged employee
is impossible or inadvisable, front pay is awardable in lieu of reinstatement).
To be entitled to an award of lost wages, the employee must be ready,
willing, and able to accept employment. See Miller v. Marsh,
766 F.2d 490, 492 (11th Cir. 1985); Bender v. Salvation Army, 830 F.
Supp. 1454 (M.D. Fla. 1993). 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.

In addressing whether Amaya is not entitled, as a matter of
law, to back pay and front pay based on his “no work” status that was imposed
prior to the retaliation and existed throughout trial, Bender is instructive.
Ms. Bender was injured while working at a Salvation Army, and she filed a
workers’ compensation claim within days of her injury. Bender, 830 F.
Supp. at 1456. Ms. Bender never returned to work due to physical injury, and
Salvation Army terminated her. Id. Following her termination, Bender
settled her workers’ compensation claim. Id.

Bender filed suit against Salvation Army asserting
discrimination in violation of the Age Discrimination in Employment Act of
1967, Title VII of the Civil Rights Act of 1964, and Florida’s Human Rights
Act. Id. Salvation Army moved for summary judgment arguing Bender had
not established that she had suffered any cognizable damages. Id. The
district court granted Salvation Army’s motion for summary judgment, finding that
Bender was not entitled to back pay because she was unable to work:

Back
pay has been regarded as a presumptive right of individuals who, because of
discrimination, have been terminated from employment. Awards of back pay should
be limited to proven economic loss.

Because
periods of unavailability are excluded from computations of back pay, Plaintiff
cannot recoup damages for the period of time that she would have been unable to
work due to her injuries. The Plaintiff’s injury and disability occurred prior
to the alleged discriminatory firing by her employer. On the date that
Plaintiff was fired, she was unable to work and as such, is not entitled to
back pay, due to her unavailability caused by her injury.

Id. at 1456 (citations omitted).

As in Bender, Amaya’s termination occurred after he
was placed on “no work” status due to the physical injuries he received while
working for Caterpillar, and because of this status, he was unable to return to
work. Because Amaya was unable to work when he was discharged, his “no work”
status due to his on-the-job physical injuries continued throughout trial, and
the jury rejected Amaya’s claims of emotional distress and mental anguish, he
cannot, as a matter of law, recover any back pay.

The reasoning in Bender also applies to Amaya’s front
pay award. As stated earlier, the evidence presented at trial showed that
Amaya’s “no work” status due his physical injuries continued throughout trial.
Further, there was no evidence presented that Amaya’s physical injuries will sufficiently
improve subsequent to trial to the point where he will be able to return to
substantially equivalent employment. Indeed, no doctor had cleared him for
physical activity at the time of trial or stated that he will be able to
physically work in the future. Therefore, Amaya failed to demonstrate that the
retaliation was the “but for” cause of any of his future lost wages.

In summary, the jury’s awards of back pay and front pay are
not sustainable because Amaya was unable to work due to his on-the-job physical
injuries, and those damages were compensable through workers’ compensation.
Had Amaya been cleared for work after being placed on “no work” status due to
his physical on-the-job injuries, and the jury had found that Amaya could not
work due to a mental or emotional injury based on Caterpillar’s retaliation
conduct, then we would have affirmed the jury’s award for back and future pay
and benefits. However, Amaya failed to convince the jury that he was entitled
to such damages. Amaya was not cleared for work based on his physical on-the
job workers’ compensation injuries through the time of trial, and the jury
rejected Amaya’s claims of emotional distress and mental anguish, specifically
finding that Amaya was entitled to zero damages for emotional distress and
mental anguish and zero damages for future psychological and/or psychiatric
expenses.

Because Amaya was unable to demonstrate that Caterpillar’s
retaliation was the “but for” cause of either his lost wages before trial or in
the future, we are compelled to reverse the final judgment as Amaya is not
entitled to an award of back pay or front pay as a matter of law. Based on our
disposition of the above issue, we do not address the remaining issues raised
by Caterpillar.

Reversed and remanded for entry of final judgment in
Caterpillar’s favor.

__________________

1Amaya
filed a cross-appeal. However, the issues raised by Amaya do not merit
discussion.

***