       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             WILLIAM SALUS,
                                Appellant,

                                     v.

        ISLAND HOSPITALITY FLORIDA MANAGEMENT, INC.,
                           Appellee.

                              No. 4D18-3222

                            [January 15, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. CACE17006971.

  Lawrence J. McGuinness of MG Legal Group, P.A., Coconut Grove, for
appellant.

  Kristen D. Perkins and Paige S. Newman of Lewis Brisbois Bisgaard &
Smith LLP, Fort Lauderdale, for appellee.

LEVINE, C.J.

   An employee appeals a final summary judgment entered in favor of the
employer on the employee’s claim of retaliatory discharge under section
440.205, Florida Statutes. In interpreting the statute, the trial court found
no prima facie case of retaliation because the employer terminated the
employee before the employee filed a claim for workers’ compensation
benefits. We disagree with the trial court’s interpretation that the
employee did not attempt to claim compensation under the statute.
Because a material issue of fact exists as to the employer’s reason for
discharge, summary judgment is not proper at this juncture. We therefore
reverse.

    On March 24, 2017, the employee sustained an injury while performing
workplace duties. The employee notified the employer of the injury the
following day and later informed the employer he was having difficulty
receiving follow-up treatment for his injuries. The employer fired the
employee less than two weeks after the work-related injury.
   The parties’ depositions set forth conflicting reasons for the discharge.
The employer submitted depositions from three employees describing an
incident in which the employee became angry and threatened a coworker,
stating: “I’ll take you outside and beat you with my bad arm.” The
employee stepped towards the coworker, but the manager stepped between
them to defuse the situation. Two managers called the employee on the
phone the following day. After the employee admitted to making the
threat, the managers told the employee that he was being terminated
because he threatened another employee with physical harm. The
managers explained to the employee that the reason for termination had
nothing to do with his injury or seeking workers’ compensation benefits.

   During the employee’s deposition, the employee denied threatening his
coworker and denied admitting on the phone to the managers that he
threatened the coworker. The employee claimed that the other employees
were lying about the incident. He further testified that the managers did
not give him a reason for terminating his employment.

   Following his termination, the employee filed a claim for retaliatory
discharge under section 440.205. Subsequently, the employee filed a
petition for workers’ compensation benefits. The employer moved for
summary judgment, arguing that the employee could not establish a prima
facie case of retaliation because his termination was not causally related
to his workers’ compensation claim. The employer pointed out that the
employee’s termination occurred before he had filed a petition for benefits.
The employer further argued that they had a legitimate, nondiscriminatory
reason for terminating the employee.

   After a hearing, the trial court granted summary judgment in favor of
the employer, stating:

      The undisputed summary judgment evidence before the Court
      was that [the employee] filed his Petition for Benefits after his
      termination by [the employer]. While [the employee] argues
      that he is nevertheless entitled to a presumption of retaliation
      based on the circumstantial evidence of temporal proximity
      between the filing of the Petition for Benefits and his
      termination, this Court finds he is not as Fla. Stat. § 440.205
      requires a showing of a statutorily protected activity, an
      adverse employment action and a causal connection between
      the statutorily protected activity and the adverse employment
      action. Florida law is clear that solely suffering a workplace
      injury and informing the employer of the injury is not alone
      an attempt to file a claim or seek benefits under Florida’s

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      Workers’ Compensation Act. Accordingly, as [the employee]
      has not asserted a prima facie case of retaliation pursuant to
      Fla. Stat. § 440.205, [the employer] is entitled to final
      summary judgment in its favor on [the employee’s] Complaint.

   We review an order granting summary judgment de novo. Frost v.
Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009). “Summary
judgment cannot be granted unless the pleadings, depositions, answers to
interrogatories, and the admissions on file together with affidavits, if any,
conclusively show that there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.” Hurchalla
v. Homeowners Choice Prop. & Cas. Ins. Co., 44 Fla. L. Weekly D2527 (Fla.
4th DCA Oct. 16, 2019).

   Statutory construction is a question of law subject to de novo review.
BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003).

   Section 440.205, states: “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.” (emphasis added). 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.” Koren v. Sch. Bd. of Miami-Dade Cty., 97 So. 3d 215,
219 (Fla. 2012) (citation omitted). “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.” Hornfischer v. Manatee Cty.
Sheriff’s Office, 136 So. 3d 703, 706 (Fla. 2d DCA 2014). In the present
case, the employee had not filed the claim, but had taken steps in seeking
benefits.

    The trial court found that the employee could not make a prima facie
case under the statute because he did not in fact petition for benefits until
after his termination. The trial court did not consider if the employee’s
actions constituted an “attempt to claim compensation.” The trial court
merely relied on the fact that the claim was filed after the employee’s
termination. However, 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. See Flores v. Roof
Tile Admin., Inc., 887 So. 2d 360, 361 (Fla. 3d DCA 2004) (reversing
summary judgment, even though no benefits claim was made before
termination of employment, where material issues of fact existed as to the

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reason for the firing); Scott v. Otis Elevator Co., 524 So. 2d 642 (Fla. 1988)
(remanding a district court case for further proceedings where the
employee “first filed a workers’ compensation claim one month after he
was terminated,” see Otis Elevator Co. v. Scott, 503 So. 2d 941, 942 (Fla.
4th DCA 1987)). The evidence showed that the employee went to the
hospital the day of the injury, notified his employer of the injury the
following day, had a discussion with the employer regarding difficulties in
receiving follow-up treatment, and obtained everything he needed from the
employer with respect to workers’ compensation. The employee effectively
sought benefits under the statute. Thus, the employee’s attempt to claim
compensation brought his actions under the protection of the retaliation
statute.

   Under the trial court’s interpretation, an employer could circumvent
section 440.205 by terminating employment immediately after a workplace
injury and before the employee even has a chance to file a claim for
benefits. A statutory provision should not be construed in such a way that
leads to absurd results. Giamberini v. Dep’t of Fin. Servs., 162 So. 3d 1133,
1136 (Fla. 4th DCA 2015). For this reason, other jurisdictions interpreting
similar statutes have declined to adopt such an interpretation of the
statute. See Hudson v. Wal-Mart Stores, Inc., 412 F.3d 781, 786 (7th Cir.
2005) (finding the fact that employee did not file for workers’ compensation
benefits before his termination was not fatal to his claim; otherwise, an
employer could “preemptively terminat[e] employees as soon as it caught
wind that an injured employee was considering a claim”); White v.
Goodyear Tire, 96 F.3d 1444 (5th Cir. 1996) (“[A]n employee can recover
for retaliation for taking steps to collect a workers’ compensation claim
‘even when the employee was fired before filing a claim for compensation
so long as the evidence shows that the employee took steps towards
instituting a compensation proceeding.’”) (citation omitted); Wright v. Fiber
Indus., Inc., 299 S.E.2d 284, 287 (N.C. Ct. App. 1983) (noting that the
applicable statute was “intended to prevent employers from firing or
demoting employees in retaliation for pursuing their remedies under the
Workers’ Compensation Act” and that if the statute “were limited only to
retaliatory acts which occurred after the employee filed his claim, an
employer could easily avoid the statute by firing the injured employee
before he filed”). In the present case, it was clear that the employee took
“steps” to begin the process of claiming and seeking benefits under the
statute.

   Where, as here, “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.” Ortega v. Eng’g Sys.

                                      4
Tech., Inc., 30 So. 3d 525, 529 (Fla. 3d DCA 2010). “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.” Id. In moving for summary judgment,
the employer argued that it had a legitimate, nondiscriminatory reason for
terminating the employee: that the employee threatened a coworker.
However, the employee disputed this claim in his deposition and denied
that he threatened a coworker. Thus, a genuine issue of material fact
exists as to the reason for termination, precluding summary judgment.
See Twin Rivers Eng’g, Inc. v. Pacer USA, LLC, 257 So. 3d 140, 142 (Fla.
4th DCA 2018) (reversing summary judgment where conflicting affidavits
gave rise to a material issue of fact); Hodges v. Citrus World, Inc., 850 So.
2d 648, 649 (Fla. 2d DCA 2003) (reversing summary judgment where
genuine issue of material fact remained as to whether employee was
terminated for pursuing workers’ compensation claim or for violating
employer’s administrative rules).

    For the foregoing reasons, we reverse the summary judgment entered
in favor of the employer and remand for further proceedings.

   Reversed and remanded for further proceedings.

MAY and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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