       Third District Court of Appeal
                              State of Florida

                          Opinion filed July 13, 2016.

                              ________________

                        Nos. 3D13-2866 & 3D13-1036
                        Lower Tribunal No. 09-89750
                             ________________


                   Caterpillar Logistics Services, Inc.,
                          Appellant/Cross-Appellee,

                                      vs.

                              Rudolf Amaya,
                          Appellee/Cross-Appellant.



      Appeals from the Circuit Court for Miami-Dade County, Marc Schumacher,
Judge.

      Sedgwick LLP, and Gordon James III, Robert C. Weill, Heather Weeter 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.
                            On Motion for Clarification

      PER CURIAM.

      We grant Caterpillar Logistics Services, Inc.’s motion for clarification,

withdraw this Court’s previous opinion dated March 2, 2016, and issue this

opinion in its stead.

      Caterpillar Logistics Services, Inc. (“Caterpillar”), 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,

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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.

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         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

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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

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

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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

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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.

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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, and we reverse

the final judgment taxing costs against Caterpillar.

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




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