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Cendant Corp. v. Commissioner of Labor10/25/2005
Persky's termination was connected to her leave is inextricably linked to the question of whether she would have retained her position had she not taken leave, we examine these claims together.
The plaintiff first claims that, regardless of where the burden of proof lies, the trial court improperly concluded that there was substantial evidence in the record to support the commissioner's findings that there was a causal connection between Persky's termination and her leave. The plaintiff further claims that the trial court improperly determined that there was substantial evidence in the record to support the commissioner's finding that Persky would have remained employed with the plaintiff had she not taken leave. The plaintiff claims that the factual findings in the record compel a conclusion that the plaintiff had legitimate business reasons for failing to reinstate Persky and that she would have been terminated if she had not taken leave. Specifically, the plaintiff contends that the trial court failed to appreciate the significance of the evidence in the record indicating that Persky's position had been eliminated due to corporate restructuring in connection with the sale of the Sidewalk unit, and that Persky's inability to work with Atkins, her Microsoft counterpart, would have resulted in the loss of her position if she had not taken leave. We disagree.
The trial court cited the following evidence in support of its determination that there was substantial evidence in the administrative record to support the commission-er's conclusion that Persky's termination was causally connected to her leave. In her proposed decision, which was incorporated into the commissioner's final decision, the hearing officer stated: "The record reveals no evidence that the [plaintiff] intended to permanently replace [Persky] with Yee before she started her leave. Yee was regarded as a `placeholder' when [Persky] went on leave. [Persky] was active in planning for the sale of idewalk to Microsoft up until she started her leave. Only after she commenced her leave did Wargotz start to ignore [Persky's] attempts to keep current on the progress of the transition agreement. During her previous maternity leaves, the [plaintiff] had kept [Persky] up to date on what was transpiring in her departments. Up until her leave in 1999, [Persky] had been complimented on her willingness to take on the difficult role of watchdog or `bad cop,' and she had been forthright and constructive in her dealings with Microsoft." The trial court also noted, in its memorandum of decision: "Shortly before Persky went on leave she received a very positive review and a 7.9 [percent] raise. . . . In addition, both [Vere Spandow, vice president of operations of the Sidewalk unit] and Yee testified that Persky was professional, and neither of them indicated having problems working with her. . . . No one informed [Persky] that she would not be returning to her position as vice president and general manager of Sidewalk when her leave ended. . . . As in Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, [298 F.3d 961] the timing of Persky's discharge also indicates a causal relation between her . . . leave and her dismissal." (Citations omitted.)
The trial court further pointed to the following evidence and testimony to support its conclusion that there was substantial evidence in the administrative record for the commissioner to have found that Persky would have remained in her position had she not taken leave. "Yee, as Persky's temporary replacement, admitted that [Persky's position] continued to exist after the transition agreement was executed in February, 1999, and that many of the position's pretransition duties continued during the tran
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