Axel v. Duffy-Mott Co., Inc.
| Decision Date | 15 June 1978 |
| Docket Number | DUFFY-MOTT |
| Citation | 406 N.Y.S.2d 155,62 A.D.2d 651 |
| Parties | Claim of Barbara AXEL, Respondent, v.COMPANY, INC., Appellant, Workers' Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
This is an appeal from a decision of the Workers' Compensation Board, which, among other things, determined that the employer herein had discriminated against the claimant in violation of section 120 of the Workers' Compensation Law.
Claimant was working for the employer herein, Duffy-Mott Company, Inc., as a computer programmer when, on January 18, 1974, she became embroiled in an argument with her supervisor over the fact that an assignment which she had been given would not be completed on time. According to the employer, this incident was the culmination of a period of some months during which claimant's work product, performance and conduct on the job markedly deteriorated, and it resulted in her discharge. Thereafter, claimant filed the instant claim alleging that her firing had been discriminatory in violation of section 120 of the Workers' Compensation Law. Claimant maintained the actual reason for her dismissal was her prosecution of an earlier compensation claim against the employer, involving a 1973 accident. After many hearings and the issuance of numerous decisions, the board ultimately determined that she had been discharged in violation of the subject statute. Accordingly, it affirmed a Referee's award in her favor, and the employer now appeals.
We hold that the board's decision must be reversed. Claimant contends that the presumption contained in subdivision 1 of section 21 of the Workers' Compensation Law is operative in this case so as to place the burden upon the employer of coming forward with evidence to demonstrate that her dismissal was non-discriminatory. Even assuming arguendo that this contention is correct, we conclude that the employer has clearly carried this burden.
Although claimant was apparently once a capable and valued programmer for Duffy-Mott Company, Inc., she suffered two major misfortunes in 1973, i. e., the above-cited accident wherein she was struck by an automobile and, most notably, the death of her mother on October 2, 1973. Undoubtedly, these occurrences profoundly affected claimant in a deleterious way, and subsequent thereto, the employer maintains with much documentary support from company personnel records that she ceased to fulfill satisfactorily her duties and responsibilities as an employee. Tardiness and absenteeism became a problem for her. She also made excessive use of the office telephone for personal calls, often...
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...there was substantial evidence of discrimination by the employer; there is none here. More to the point is Axel v. Duffy-Mott Co., Inc., 62 A.D. 651, 406 N.Y.S.2d 155 (1978), dismissing a claim for an alleged discriminatory discharge for filing a workmen's compensation claim where the emplo......
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Axel v. Duffy-Mott Co., Inc.
...itself. However, on appeal to the Appellate Division, that court, by a vote of three to two, reversed and dismissed the claim (62 A.D.2d 651, 406 N.Y.S.2d 155). It held as a matter of law that the evidence established that Ms. Axel's discharge was based on permissible, nonretaliatory ground......
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