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Cendant Corp. v. Commissioner of Labor10/25/2005
sition. . . . Yee retained Persky's title . . . and performed substantially similar duties to those that she had performed working with Spandow and Microsoft. . . . Spandow, who was one of Persky's [vice president level] subordinates, confirmed this fact as well. . . . Additionally, the controlling agreement between [the plaintiff] and Microsoft for the provision of transition services . . . provided evidence of the availability of Persky's position. . . . Finally, Span-dow's testimony showed that he believed that both his and Persky's positions continued to exist after the transition and sale of Sidewalk was announced in February, 1999 . . . ." (Citations omitted.)
We conclude that, on the basis of the evidence regarding Persky's prior leave history, the favorable reviews of her work performance, her cooperative and professional manner, and the continued availability of her position following her leave, the trial court properly determined that there was substantial evidence in the record to support the commissioner's findings that there was a causal connection between Persky's leave and the subsequent denial of her reinstatement, and that Persky would have retained her position had she not taken leave. We therefore reject the plaintiff's argument that the trial court improperly applied the substantial evidence test because it failed to recognize that the evidence in the record regarding Persky's inability to work with Atkins directly contradicted the commission-er's findings. Although the trial court had before it Atkins' testimony about an acrimonious relationship with Persky, it also had before it the commissioner's determination that he did not find Atkins' testimony regarding Persky's professionalism and attitude to be credible, and that he therefore accorded more weight to Yee and Spandow's testimony in this regard. Accordingly, the trial court in the present case properly determined that the commissioner's findings concerning the continued existence of Persky's position were supported by substantial record evidence in the form of persuasive testimony from Yee and Spandow. We therefore conclude that the trial court properly affirmed the commissioner's conclusion that the plaintiff had failed to show that Persky would have been terminated even if she had not taken leave.
The judgment is affirmed.
In this opinion the other justices concurred.
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