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Cendant Corp. v. Commissioner of Labor10/25/2005
the appropriate burden allocation. The defendants counter that the plaintiff's claims on appeal do not involve questions of first impression, and that the trial court therefore correctly deferred to the commissioner's interpretation of the statute and regulations in question. We agree with the plaintiff. It is well established that "when agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . t is for the courts, and not administrative agencies, to expound and apply governing principles of law." Southern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 127, 874 A.2d 776 (2005). This court has not reviewed previously the question of the proper analytical framework to be used in analyzing a claim of interference with an employee's right to reinstatement under the leave statute. Accordingly, we review the plaintiff's claims de novo.
Because FMLA jurisprudence informs our interpretation of the leave statute in the absence of our own precedent, we turn to federal cases interpreting the relevant FMLA provisions for guidance. Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 73 n.6, 856 A.2d 364 (2003) (" n construing a Connecticut statute that is similar to federal law, we are guided by federal case law"). Several federal Circuit Courts of Appeal have considered claims concerning an employer's interference with an employee's right to be reinstated to her position following leave. An examination of these decisions indicates that courts have employed one of two frameworks in analyzing such a claim. Most federal courts have used a framework wherein the ultimate burden of proof for overcoming liability for a FMLA violation is placed on the employer. One federal circuit, the Seventh Circuit; see Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir. 2000); has used the McDonnell Douglas Corp. burden-shifting framework, which places on the employee the ultimate burden of proving entitlement to the right to reinstatement. We examine each approach in detail before undertaking our own analysis.
The majority of federal courts considering interference claims under FMLA have set forth a burden-shifting framework that requires the employee to make an initial showing that she has been denied a right under FMLA and that the denial of that right was caused in part by her leave. See, e.g., Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (" n order to prevail on her [interference] claim . . . [the employee] need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her"); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (To allege a claim of interference an employee must establish that "she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave. . . . reason for dismissal insufficiently related to FMLA leave will not support recovery under an interference theory."). Once an employee has made this showing, liability attaches to the employer for a violation of FMLA. Unlike the showing required in alleging a discrimination claim under FMLA, which, by definition, requires an employee to demonstrate a discriminatory intent on the part of her employer, an employee alleging a claim of interference under FMLA does not need to prove the employer's intent for liability to attach to the employer. Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, 960 (In alleging a claim of interference with the right to reinstatement "the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed le
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