39 Fla. L. Weekly D339a
filing of workers’ compensation claim — Error to enter summary judgment in
favor of former employer where genuine issues of material fact existed as to
whether discharge of plaintiff and plaintiff’s filing of workers’ compensation
claims were causally related — Reasons given by employer as basis for discharge
of plaintiff, that plaintiff neglected his duties because he failed to obtain
authorized physician’s report concerning his medical condition and fitness to
return to work and that he was absent from work without leave, were
questionable, and evidence in record before the circuit court, including series
of e-mails exchanged among employer’s agents, indicated negative attitude toward
plaintiff and his workers’ compensation claims — Moreover, opposing affidavits
filed by plaintiff and his attorney constituted additional evidence from which
jury might conclude that employer’s stated reasons for discharging plaintiff
were unfounded and pretextual — Lapse of approximately six months between
claims and plaintiff’s discharge does not conclusively establish absence of
causal connection between protected activity and adverse employment action —
Acts of employer’s agents are properly considered in determining propriety of
summary judgment given plaintiff’s contention that the managers responsible for
his firing were aware of the thinking and actions of the agents charged with
handling plaintiff’s workers’ compensation claims
2nd District. Case No. 2D13-374. Opinion filed February 12, 2014. Appeal from
the Circuit Court for Manatee County; Diana L. Moreland, Judge. Counsel: Bill
McCabe, Longwood, and Keith A. Mann, Sarasota, for Appellant. Robert Wayne Evans
and Matthew Stefany of Allen, Norton & Blue, P.A., Tallahassee, for
entered in favor of his former employer, the Manatee County Sheriff’s Office
(the MCSO), on Mr. Hornfischer’s claim for retaliatory discharge under section
440.205, Florida Statutes (2006). Because the MCSO failed to establish the
nonexistence of a genuine issue of material fact concerning whether its
discharge of Mr. Hornfischer and his filing of workers’ compensation claims were
causally related, we reverse the final summary judgment and remand for further
I. THE FACTS AND PROCEDURAL HISTORY
in a compensable accident when he accidentally stabbed himself in the abdomen
with a knife. A “First Report of Injury or Illness” was timely filed for this
D.B.A.-Office of the County Attorney.” The MCSO was self-insured for workers’
compensation purposes. The MCSO participated in a pool of funds for workers’
compensation cases run by Manatee County. A third-party administrator, Unisource
Administrators, Inc., administered the pool.
physicians determined that he had medical problems with his hands and arms
unrelated to the stabbing. The workers’ compensation liaison in the MCSO’s human
resources department told Mr. Hornfischer to file another claim for the hand and
arm problems, and he did. A second “First Report of Injury or Illness” was filed
on November 30, 2006, with a date of accident listed as November 28, 2006. The
MCSO paid medical expenses and other benefits based on Mr. Hornfischer’s claims.
marked by various difficulties. Ultimately, he was unable to return to work as a
meat cutter. The MCSO offered him a different position as a control room
operator in the jail. Mr. Hornfischer reported for work in the new position,
but, for reasons discussed later in this opinion, he did not assume his new
duties. After an administrative hearing, the MCSO notified Mr. Hornfischer that
his employment was terminated on May 24, 2007.
retaliatory discharge under section 440.205. The MCSO answered the complaint and
alleged that “[Mr. Hornfischer’s] termination would have occurred in any event,
regardless of his request for workers’ compensation benefits.” After the parties
had conducted discovery, the MCSO moved for summary judgment on the ground that
“[t]here is no genuine issue of material fact to support a causal connection
between [the] protected activity and the adverse employment action concerning
[Mr. Hornfischer’s] termination.” The circuit court granted the motion and
entered a final judgment in favor of the MCSO. This appeal followed.
II. THE STANDARD OF REVIEW
de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). 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, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So. 2d
396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment
as a matter of law, Aberdeen at Ormond Beach, 760 So. 2d at 130. “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.” Holland v. Verheul,
583 So. 2d 788, 789 (Fla. 2d DCA 1991).
III. THE APPLICABLE LAW
section 440.205. The statute provides as follows:
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.
statutorily protected activity; (2) an adverse employment action occurred; and
(3) the adverse action and the employee’s protected activity were causally
related. Ortega v. Eng’g Sys. Tech., Inc., 30 So. 3d 525, 528 (Fla. 3d
DCA 2010) (citing Russell v. KSL Hotel Corp., 887 So. 2d 372, 379 (Fla.
3d DCA 2004)). In order to establish a claim under section 440.205, the
employee’s pursuit of workers’ compensation need not be the only reason for a
discharge. Allan v. SWF Gulf Coast, Inc., 535 So. 2d 638, 639 (Fla. 1st
DCA 1988). “The statute prohibits any discharge ‘by reason of’ an attempt to
claim compensation even if there may also be other reasons for the discharge.”
Id. In addition, proof of a discharge is not essential to a recovery
under the statute. Section 440.205 creates a cause of action for intimidation or
coercion even in the absence of a discharge. Chase v. Walgreen Co., 750
So. 2d 93, 97-98 (Fla. 5th DCA 1999). Finally, the employee need not establish a
specific retaliatory intent in order to prevail. Allan, 535 So. 2d at
courts use the following framework:
Once a plaintiff establishes a prima facie case by proving the
protected activity and the negative employment action are not completely
unrelated, the burden then shifts to the employer to proffer a legitimate reason
for the adverse employment action. See Russell [v. KSL Hotel
Corp.], 887 So. 2d , 379-80 [Fla. 3d DCA 2004]. . . .
A plaintiff withstands summary adjudication at this stage either by
producing sufficient evidence to permit a reasonable finder of fact to conclude
the employer’s proffered reasons were not what actually motivated its conduct,
or that the proffered reasons are not worthy of belief. Corbitt v. Home Depot
U.S.A., 589 F.3d 1136, 1162-63 (11th Cir. 2009). A trial court should
“evaluate whether the plaintiff has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Id. (internal citations
IV. THE TRIAL COURT’S ANALYSIS
summary judgment in favor of the MCSO as follows:
V. In the case at bar[,] the Court finds Plaintiff has established
elements one and two of a prima facie case. However, the Court also finds
Plaintiff has been unable to present any record evidence as to a causal
connection between his exercise of protected activity and the adverse employment
action by Defendant. In fact, the undisputed evidence has established his
workers’ compensation benefits were paid and the adverse job action/termination
was remote temporally from same. Even assuming that the second filing on 28
November 2006 was the protected activity it too is approximately six months
removed from the adverse job action/termination of 22 May 2007.
W. Even if it could be argued Plaintiff had established all three
elements for a prima facie case shifting the burden to Defendant; Defendant has
provided at least two legitimate, nondiscriminatory policy reasons for the 22
May 2007 termination. Those two legitimate, nondiscriminatory reasons were
insubordination and neglect of job. As a result Plaintiff must establish via
record evidence that both legitimate, nondiscriminatory reasons were merely a
pretext for Defendant’s retaliatory conduct. The Court finds Plaintiff has
fallen woefully short of establishing that even one of the reasons for
termination was pretextual, let alone both.
nonexistence of a genuine issue of material fact and that it was entitled to a
judgment as a matter of law.
analysis. The record contains evidence from which one might conclude that the
MCSO’s stated reasons for discharging Mr. Hornfischer will not withstand
critical scrutiny and that the reasons are pretextual. This evidence in the
record includes: (1) information indicating that the MCSO’s stated reasons for
discharging Mr. Hornfischer are questionable; (2) e-mails and other documents
circulated among the MCSO’s agents reflecting the negative attitude that they
displayed toward Mr. Hornfischer and his claims; and (3) the affidavits that Mr.
Hornfischer filed in opposition to the motion for summary judgment. We will
discuss these three types of evidence separately below.
Mr. Hornfischer. Both of these reasons are subject to question.
alleged failure to obtain a report from his authorized treating physician
concerning his medical condition and fitness to return to work as a control room
operator. According to the MCSO, Mr. Hornfischer’s alleged failure to obtain
this report amounted to neglect of duty warranting his discharge. There are two
problems with the neglect of duty charge.
conclusion that obtaining the physician’s report was the responsibility of the
MCSO, not Mr. Hornfischer. The workers’ compensation system is designed to be
self-executing, and it is in “its day-to-day operations, fundamentally an
employer/carrier-monitored system.” Gauthier v. Fla. Int’l Univ., 38 So.
3d 221, 224 (Fla. 1st DCA 2010). In order to ensure that the system functions
efficiently as intended, “[a]ny health care provider providing necessary
remedial treatment, care, or attendance to any injured worker” is required to
submit reports to the employer/carrier. § 440.13(4)(a), (c). For these reasons,
the employer cannot pass off its responsibilities under the Workers’
Compensation Law to the injured worker and require him or her to act as its
go-between to a health care provider. Here, the MCSO discharged Mr. Hornfischer
for allegedly failing to perform a function that it could not lawfully demand of
reflects a genuine issue of material fact about whether Mr. Hornfischer actually
complied with the MCSO’s unauthorized demand. There is evidence in the record
that Mr. Hornfischer obtained the requested report from his doctor and faxed it
to his attorney. In turn, Mr. Hornfischer’s attorney evidently faxed a copy of
the report to Unisource, the third-party administrator, before the deadline
imposed by the MCSO for the receipt of the report. Thus evidence in the record
tends to demonstrate that the requested report was actually in the hands of the
claims administrator, the MSCO’s agent, within the time allotted for that
purpose. In the absence of contrary evidence, the MCSO could not reasonably
contend that it was not in receipt of the report that was delivered to the agent
it had authorized to handle the claim.
was absent from work without leave. Nevertheless, the evidence in the record
raises a genuine issue of material fact about the reason or reasons for Mr.
Hornfischer’s absence from work. There is evidence in the record that when Mr.
Hornfischer reported for work, he notified his supervisor that he was taking
prescribed analgesics. Upon hearing this information, the supervisor instructed
Mr. Hornfischer to leave work and to return home. Based on such evidence, a jury
could reasonably conclude that Mr. Hornfischer was not absent from work without
e-mails exchanged among the MCSO’s agents — the Manatee County attorney’s
office and Unisource. A jury reading these e-mails might conclude that the
MCSO’s agents consistently displayed a negative attitude toward Mr. Hornfischer
and his workers’ compensation claims.2 An
adjuster in the Manatee County attorney’s office arranged for and obtained
surveillance reports on Mr. Hornfischer. When Mr. Hornfischer’s deposition in
the workers’ compensation claims was scheduled for May 10, 2007, the same
adjuster arranged for an off-duty law enforcement officer to be present at the
deposition. Ultimately, Mr. Hornfischer’s case was referred to the Florida
Department of Financial Services for the investigation of alleged insurance
fraud. The apparent animus displayed by the MCSO’s agents against Mr.
Hornfischer and his claims constitutes evidence from which — depending upon all
of the facts — it might be appropriate for a jury to draw an inference that the
MCSO’s stated reasons for discharging Mr. Hornfischer were pretextual in nature.
in opposition to the motion for summary judgment. In his affidavit, Mr.
Hornfischer stated, in pertinent part, as follows:
9. This was not my first workers’ compensation claim. I sustained
other, earlier on-the-job injuries during my employment with the Sheriff’s
Office who handled those claims in accordance with the workers’ compensation
law. My employer handled this claim differently. My employer knew this claim was
more expensive than the others, and sought to limit the exposure it presented.
In doing so, my employer ordered surveillance of my activities, accused me of
insurance fraud, referred to my MRSA [Multi-Resistant Staphylococcus Aureus]
infection as bug bites, repeatedly insisted that I singularly produce a report
from the doctor it authorized to treat my compensable injuries, refused to
communicate with my attorney or give my attorney a copy of the medical report
form to enable my attorney to assist me, and discharged me after telling me that
I failed to meet the deadline for producing the report. My employer required me
to return to work in a temporary assignment as a control room operator on April
27, 2007, which I did, and sent me home because I was taking medications; and on
that date my employer suspended my compensation benefits and did not resume the
payments until I was able to see Dr. Greene.
10. Although my employer had received the medical information it
demanded from me, my employer told me that it had not received the information
directly from me, calling it “insubordination” and “neglect of duty”. I was not
insubordinate nor did I neglect my duties. On the contrary, my employer
disregarded its obligations under the workers’ compensation law and unlawfully
discharged me. My employer’s unlawful actions occurred only because of my valid
workers’ compensation claim and my attempt to obtain compensation under the
workers’ compensation law.
the actions taken by him and Mr. Hornfischer to obtain the doctor’s report and
to deliver it to Unisource before the deadline imposed by the MCSO. These
affidavits constitute additional evidence in the record from which a jury might
conclude that the MSCO’s stated reasons for discharging Mr. Hornfischer were
both unfounded and pretextual.
above. First, the MCSO argues that the lapse of approximately six months between
Mr. Hornfischer’s claims and his discharge conclusively establishes the absence
of a causal connection between the protected activity and the adverse employment
action. In light of the matters outlined above concerning the questionable
nature of the reasons offered for Mr. Hornfischer’s discharge, together with the
e-mails reflecting a negative attitude by the MCSO’s agents toward Mr.
Hornfischer and his claims, we find this argument unconvincing.
pool, and Unisource, the third-party administrator of the pool, “are distinct
and separate entities” from the MCSO. According to the MCSO, Mr. Hornfischer
improperly attempts to “attribute the actions” of these separate entities to it.
We take a different view of the matter.
summary judgment, we conclude that Mr. Hornfischer was entitled to attempt to
establish at a trial that the MCSO’s managers responsible for his firing were
aware of the thinking and the actions of the MCSO’s agents charged with handling
Mr. Hornfischer’s workers’ compensation claims. Cf. Barlow v. C.R.
England, Inc., 703 F.3d 497, 502, 508 (10th Cir. 2012) (noting that the
employer’s site manager, who was responsible for discharging a workers’
compensation claimant in what was alleged to be a retaliatory discharge, was
aware of a third-party claims adjuster’s decision to place the claimant under
surveillance and was also asked for help in responding to the adjuster’s queries
concerning the claim when the site manager made the decision to discharge the
claimant). A jury would be entitled to draw negative inferences about the MCSO’s
motives for discharging Mr. Hornfischer from such evidence. For this reason, we
find the MCSO’s argument that the acts of its agents cannot be considered in
determining the propriety of summary judgment to be unpersuasive.
is discharging an employee because he or she has filed a workers’ compensation
claim. It is not difficult for an employer wishing to discharge an employee for
engaging in protected activity to find another plausible reason or reasons to
justify its decision. Thus a determination of whether an adverse employment
action was causally related to the employee’s protected activity will frequently
depend on a consideration of all the pertinent facts, a searching assessment of
the actions, statements, and credibility of the participants, and the drawing of
appropriate inferences informed by one’s life experience and understanding of
human nature. For this reason, employee actions for a retaliatory discharge
under section 440.205 are often ill suited to final disposition on a motion for
summary judgment.3 This is such a case.
Here, the MCSO failed to establish the nonexistence of a material fact
concerning whether its discharge of Mr. Hornfischer was causally related to the
filing of his worker’s compensation claims. A review of the record reveals
evidence from which a jury could find that the MCSO’s stated reasons for
discharging Mr. Hornfischer were pretextual. Accordingly, we reverse the final
summary judgment in favor of the MCSO and remand for further proceedings.
pleadings; the depositions on file; the affidavits; and the e-mails,
correspondence, and other documents in the record — are reviewed in the light
most favorable to Mr. Hornfischer as the nonmoving party against whom the
summary judgment was entered. See Markowitz v. Helen Homes of Kendall
Corp., 826 So. 2d 256, 258-59 (Fla. 2002).
detail the content of all of these e-mails here. One exchange will suffice to
give their tenor. On May 1, 2007, a claims adjuster in the Manatee County
attorney’s office sent an e-mail to an adjuster at Unisource who had just been
assigned to handle Mr. Hornfischer’s claims. The e-mail said: “You are going to
get sick of this file. . . . . I received a letter from [Mr. Hornfischer’s
attorney] which I am forwarding to you and attorney Dan DeMay.” The Unisource
adjuster responded: “I just reviewed the file, and you are right. This man has
no intentions on ever[ ] actually returning to work.”
Saffold, 606 So. 2d 1249, 1249 (Fla. 2d DCA 1992); Ortega, 30 So. 3d
at 529; Eads v. Traffic Control Devices, Inc., 19 So. 3d 1142, 1143 (Fla.
1st DCA 2009); Hubbard v. City of Boca Raton, 839 So. 2d 747, 748 (Fla.
4th DCA 2003), Posada v. James Cello, Inc., 135 Fed. App’x 250, 252-53
(11th Cir. 2005); Davis v. Jim Quinlan Ford, Lincoln-Mercury, Inc., 932
F. Supp. 1389, 1392-93 (M.D. Fla. 1996). But see, e.g., Pericich v.
Climatrol, Inc., 523 So. 2d 684, 685-86 (Fla. 3d DCA 1988), Edwards v.
Niles Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1228-37 (S.D. Fla.
2006); Humphrey v. Sears, Roebuck, & Co., 192 F. Supp. 2d 1371,
1374-75 (S.D. Fla. 2002).
* * *