Axel v. Duffy-Mott Co., Inc.

• Decision Date: 05 April 1979
• Docket Number: DUFFY-MOTT
• Citation: 416 N.Y.S.2d 554,47 N.Y.2d 1
• Parties: , 389 N.E.2d 1075 In the Matter of Barbara AXEL, Respondent, v.COMPANY, INC., Respondent, Workers' Compensation Board, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 554

416 N.Y.S.2d 554

47 N.Y.2d 1, 389 N.E.2d 1075

In the Matter of Barbara AXEL, Respondent, v. DUFFY-MOTT COMPANY, INC., Respondent Workers' Compensation Board, Appellant.

Court of Appeals of New York.

April 5, 1979.

Robert Abrams, Atty. Gen. (Henriette B. Frieder and Daniel Polansky, New York City, of counsel), for appellant

Charles K. O'Neill, Paul G. Pennoyer, Jr., and Laurence S. Markowitz, New York City, for Duffy-Mott Company, Inc., respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

On this appeal we for the first time meet § 120 of the Workers' (formerly Workmen's) Compensation Law head-on. This relatively recently enacted statute forbids employers to discharge or otherwise discriminate against employees who claim compensation for job-related injuries or who testify in proceedings to enforce such payment. Its violation subjects the employer to a statutory penalty and entitles the mistreated employee to be reinstated and reimbursed for any wages lost as a result of the discrimination. ¹

The case comes to us in the following context: On April 9, 1973, at the instance of a third party, Barbara Axel, a computer programmer employed by the Duffy-Mott Company, sustained a serious injury to her right arm as a result of which she later filed a compensation claim against her employer. On January 25, 1974, two days after she had testified at a hearing on her claim, Duffy-Mott terminated her employment. According to the complaint filed by Ms. Axel with the compensation board, her discharge was in retaliation for her prosecution of the injury claim. Duffy-Mott contends that its action was premised solely on a deterioration in job performance and on a dispute the employee had with a supervisor. After a hearing, the workers' compensation referee resolved the issue in the employee's favor, a determination thereafter unanimously Initially staking out some of the guideposts by which this appeal is to be approached, we first note section 120's self-evident purpose to insure that employees may exercise their rights under the compensation statutes without fear that doing so will prejudice them in their employment (see Department of Labor Memorandum on L.1973, ch. 235, N.Y.Legis.Ann., 1973, p. 244; 2A Larson, Workmen's Compensation Law, § 68.36). ² As with retaliation statutes generally, it also may be said to promote the integrity of board proceedings by encouraging employees to speak openly and honestly at compensation hearings, whereas unremedied retaliation tends to stifle not only the particular employee against whom it is directed but all others who become aware of the fact that reprisal can be taken with impunity (see Lopatka, Protection Under the National Labor Relations Act and Title VII of the Civil Rights Act for Employees Who Protest Discrimination in Private Employment, 50 N.Y.U.L.Rev. 1179, 1195).

affirmed by a three-member panel of the board 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 grounds. For the reasons that follow, we reverse.

It is also pertinent to observe the difference between the basic standards by which the board was governed in reaching its decision, and those to which the quasi-judicial determination it arrived at was to be subjected on judicial review. It was the board's prerogative to weigh the evidence and decide the case in favor of the party whose proofs, in its view, preponderated (cf. 3 Larson, Workmen's Compensation Law, § 80.20). As to pure questions of fact and factual inferences to be drawn therefrom, it needs no supporting citations to recite that a decision of the board is conclusive upon the courts if supported by substantial evidence. It is equally well established that it is not the role of a reviewing court to substitute its view of the factual merits of a controversy for that of an administrative agency (cf. Matter of Malacarne v. City of Yonkers Parking Auth., 41 N.Y.2d 189, 193, 391 N.Y.S.2d 402, 405, 359 N.E.2d 992, 995; Matter of Fisher (Levine), 36 N.Y.2d 146, 150, 365 N.Y.S.2d 828, 832, 325 N.E.2d 151, 153).

Of course, in searching the record for the presence of substantial evidence in a case premised on an alleged violation of a statute purposed to counter retaliation or other discrimination, we must keep in mind that those engaged in such conduct rarely broadcast their intentions to the world. Rather, employers who practice retaliation may be expected to seek to avoid detection, and it is hardly to be supposed that they will not try to accomplish their aims by subtle rather than obvious methods (see, generally, Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584; State Div. of Human Rights v. Kilian Mfg. Corp., 35 N.Y.2d 201, 209-210, 360 N.Y.S.2d 603, 608, 609, 318 N.E.2d 770, 773-774). Moreover, employers are vested with considerable discretion in the hiring and firing of their employees so as to maintain an efficient and productive work force, and the visible manifestations of even a most improperly motivated discharge may be difficult to sort out from a nonretaliatory exercise of this discretion.

Inspecting the record here with sensitivity to these factors, we are convinced that, though the case could be termed a Be that as it may, whatever inferences might be drawn from the events of the preletter period if they stood alone, they become far more pronounced by reason of the sharply contrasting second part of the before and after picture that emerges from the record that follows the lawyer's communication. Then only does Ms. Axel's personnel file begin to contain adverse references to her attendance record, her use of an office phone to make personal calls during working hours and her alleged failure to complete assigned work promptly. Particularly odd in light of the excellence of her antecedent ratings is a directive that claimant's supervisors document all discussions with her on these matters. While reasonable men most certainly could differ as to the inferences to be drawn from this train of events, we cannot say that it does not admit of ones consistent with the board's apparent conclusion that Duffy-Mott was attempting to build a case against Ms. Axel so that it would have an excuse to discharge her (see, generally, Spurlock, Proscribing Retaliation Under Title VII, 8 Ind.L.Rev. 453, 476-489).

close one, the board's decision finds adequate support in the evidence. It is at once apparent that September 9, 1973 might be found to represent a line of demarcation in a pattern of events starting with the day of the claimant's injury and ending with that of her discharge. A letter concededly sent by Ms. Axel's lawyer to Duffy-Mott on that date could well have served to bring home the fact that his client was intent on pursuing her compensation remedy. It was no mere coincidence, says the claimant, that the receipt of this letter marked the end of a long period, starting with the time she had first come to work for Duffy-Mott, during which memoranda written by her supervisors consistently described her abilities in glowing terms and regularly recommended that she receive substantial salary increases. It is significant in tying Duffy-Mott's change of attitude to the receipt of the letter, continues the claimant, that, Before it arrived, she received yet another increase months after the accident despite the intervention of her injury-enforced absence and a somewhat handicapped work performance upon her return.

A sharp question of fact also arose over whether claimant's supervisors ever actually brought the performance deficiencies mentioned in her file to her attention. Ms. Axel flatly denied these subjects were ever broached, and the evaluation of her credibility obviously was for the board (Matter of Slade v. Perkins, 33 N.Y.2d 988, 353 N.Y.S.2d 744, 309 N.E.2d 140; Matter of Gordon v. New York Life Ins. Co., 300 N.Y. 652, 654, 90 N.E.2d 898; 3 Larson, Workmen's Compensation...