NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JULIE ATHA, ) ) Appellant, ) ) v. ) Case No. 2D16-131 ) ALLEN P. VAN OVERBEKE, D.M.D., P.A., ) a Florida Corporation, ) ) Appellee. ) ___________________________________ ) Opinion filed March 10, 2017. Appeal from the Circuit Court for Hillsborough County; Robert A. Foster, Jr., Judge. 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 amen ded complaint against her former employer, Allen P. Van Overbeke, D .M.D., P.A., with prejudice. The trial court determined that Atha failed to plea d a facially sufficient violation of section 440.205, Florida Statutes (2011), for work ers' compensation- 2 - 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 stateme nt of the ultimate facts showing that the pleader is entitled to relief." See also Ferg uson 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 cl aim, the trial court is limited to a consideration of the allegations within the four corners of t he complaint and is required to accept those allegations as true. Id. The court's dismissa l of a complaint for failure

to state a cause of action is reviewed de novo. Id. Section 440.205 provides, "No em ployer shall discharge, threate n to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Wor kers' Compensation Law." To establish a prima faci e case of workers' compensation retaliation under section 440.205, the plaintiff must prove the following element s: (1) a statutorily protected activity, (2) an adverse employment action, and (3) a causal connection between the statutorily protected activity and the adverse empl oyment 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 c omplaint. 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- 3 - Workers' Compensation Act. Van Overbeke's insurance carrier ev aluated 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 tempora ry disability benefits under the Act from the time of surgery thro ugh 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 off ered her only one shift per week. Three weeks later, Van Overbeke terminated Atha's em ployment despite the fact that it still had a position available that Atha could per form. The second amended complaint alleged that Atha's request for wo rkers' compensation benefits constituted statutorily protected activit y, 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 subsequen t 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 Ru ssell, 887 So. 2d at 379. The temporal connection between the protected activity an d 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 Edward s 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- 4 - adverse employment action as sufficient evidence of causality t o establish a prima facie case uniformly hold that the temporal proximity must be 'very c lose.' " (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001))). In her second amended complaint, Atha made the following additi onal allegations to establish t he 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 rem ainder of the second amended complaint, Atha's allegations can be read to est ablish that Van Overbeke was aware of her reques t for workers' compensation ben efits from the time she stopped working to obtain treatment for her work-related in juries. From that time until it terminated her employment, Van Overbeke engaged in act ions that demonstrated a negative attitude toward Atha's workers' compens ation claim. When Atha was released to return to full-time work, Van Overbeke red uced her hours and then terminated her employment in retaliation for filing her wo rkers' compensation claim. We conclude that these allegations, which we are required to ac cept as true, are sufficient to establish that the statutorily protecte d activity (Atha's request for workers' compensation benefits) and the adverse employment acti on (the reduction in- 5 - hours and subsequent termination from employment) are not compl etely unrelated. 1 Cf. Hornfischer v. Manatee Cty. Sheriff's Office, 136 So. 3d 703, 7 09-10 (Fla. 2d DCA 2014) (holding that the plaintiff established the causal connec tion 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 viola tion of section 440.205, and the trial court erred by dismissing her second amended complain t with prejudice.

Reversed and remanded.

CASANUEVA and SLEET, JJ., Concur.

1 In light of our decision, we need not address Atha's argument t hat the temporal connection between Atha' s request for workers' compens ation benefits and the reduction in hours and subsequent termination from employme nt in itself is close enough to establish a causal connection.