Sabatini and Associates, LLC Attorneys at Law :: Newington :: Hartford :: Connecticut

Connecticut courts are now refusing to label a discriminatory statement or comment as stray or not.  Instead, and correctly so, Connecticut courts are applying a four factor test in weighing the probative value of the comments.  The four factors are:

1. who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker;
2. when the remark was made in relation to the employment decision at issue;
3. the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and
4. the context in which the remark was made, i.e., whether it was related to the decisionmaking process.

In applying the test, the Court need not determine whether the remarks by employer’s agents are stray. Instead, the Court will decide whether the remarks are sufficiently probative of unlawful discrimination such that the jury could reasonably find that the Plaintiff was terminated because of unlawful discrimination. 

What reinstatement rights does an employee have where he would have been discharged or laid off during the leave, or where his job is changed during the leave?

An employee on an FMLA leave has no greater right to reinstatement than if the employee had continued to work instead of taking leave. If the employee would have been terminated or laid off for reasons unrelated to the leave, then the employee is not entitled to reinstatement. (However, the employee must still be given transfer rights if he would have had such rights absent the leave).

Indeed, an employer may effect the discharge or lay off during the FMLA leave when it otherwise would have occurred and terminate the continuation of the employee’s health benefits at that time. Additionally, if the employee’s job was reorganized or otherwise changed during the leave, the employee is only entitled to the reorganized or changed job he would have had if he had not taken a leave of absence.

The employer has the burden of proving, however, that the discharge, layoff, or job restructuring is not related to the FMLA leave. Thus, employers should be very careful not to use these limits on an employee’s reinstatement rights as an excuse to take advantage of the FMLA and affect the employee’s job status.

An 86-year old man is recovering after being hit by a car in Enfield, Connecticut. It happened about 2:30 Saturday afternoon in the parking lot of the Brookside Plaza on Hazard Avenue. Police say a woman driving a 2002 Hyndai hit the man. He was then taken to Baystate Hospital in Springfield, Massachusetts. There is no report on the nature and extent of the man’s injuries.  The accident is under police investigation.