Isbelia M. Duran, Appellant, v. Florida Unemployment Appeals Commission, et al., Appellees. (2010)

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Isbelia Duran, a non-attorney representing herself, appeals a final order of the Florida Unemployment Appeals Commission (FUAC) denying her application for unemployment benefits during the summer of 2009.   Her appeal turns on the application of a special statutory provision disqualifying certain teachers from receiving unemployment benefits during a summer vacation between regular school terms.   We find that the special rule of ineligibility does not apply because Ms. Duran was laid off before she could fully “perform” a year of academic service.

There is no dispute regarding the facts in the record below.   Ms. Duran was a full-time instructor for Miami-Dade County Public Schools (MDCPS) during most of academic year 2008-09.   In April 2009, however, before the end of that academic year, she was laid off as a full-time MDCPS employee.   Thereafter, she applied for a part-time position as a substitute teacher with MDCPS.

Substitute teachers are “on call” to MDCPS and are paid on a per diem basis when and if they are called.   Ms. Duran's earnings as a substitute teacher were a small fraction of her earnings as a full-time instructor, and her ability to earn became sporadic rather than regular.

Ms. Duran applied for unemployment compensation benefits with the expectation that her benefits would be reduced by her occasional income as a substitute.   The Agency for Workforce Innovation determined that she was ineligible for any benefits during the summer vacation period, June 7 to August 22, 2009, based on section 443.091(3)(a), Florida Statutes (2009).   That provision states, in pertinent part:

Benefits are not payable for services in an instructional ․ capacity for an educational institution ․ for any week of unemployment commencing during the period between 2 successive academic years ․ if the individual performs those services in the first of those academic years ․ and there is a contract or a reasonable assurance that the individual will perform services in any such capacity ․ in the second of those academic years․ 1

The Agency's written determination specifically found that Ms. Duran had “reasonable assurance of being rehired,” but did not address the distinction between the full-time job she lost (prior to a complete academic year of performance) and the “on call,” part-time work as a substitute teacher.

Ms. Duran appealed to the Agency's Office of Appeals, and a referee then conducted a telephonic hearing regarding the appeal.   The MDCPS representative testified that “[b]ecause [Ms. Duran] substituted during this school year she is automatically active on our substitute list for the next school year and because she is active, yes, she could be called back on the first day of school if, you know, if a school needs her.”   During her closing statement, the MDCPS representative told the referee that Ms. Duran remained “active in our system” and had “some reasonable assurance of a job in the next school year,” but did not clarify whether that job was a full-time job or a position as a substitute.   Ms. Duran testified regarding her efforts to obtain any income at all from any source, and provided records of her meager earnings as an occasional substitute teacher for MDCPS.

The appeals referee ruled against Ms. Duran, concluding that:

The law provides that a claimant is ineligible for benefits based on services provided to, for, or on behalf of an educational institution or institution of higher education during periods between successive academic years or regular terms and during vacation or holiday recesses if the claimant performed services to, for, or on behalf of an educational institution or institution of higher education in the first of such years or terms or in the period immediately before the recess and there is a contract or reasonable assurance that claimant will perform services in any such capacity in any educational institution or institution of higher education during the second year or term, or immediately following the vacation or recess.

The law provides that “reasonable assurance” means a written or verbal agreement or an agreement between an employer and a worker understood through tradition within the trade or occupation or defined in an employer's policy.

The evidence in the case shows the claim is based on employment with an educational institution.   The evidence further shows the claimant worked for the employer in the first of two successive school years and has a “reasonable assurance” of working for the employer in a similar capacity during the second of those school years.   Therefore, the claimant is ineligible for benefits from June 7, 2009, through August 22, 2009, the period between terms.

Ms. Duran appealed to FUAC, which affirmed in a form order containing no analysis of the full-year performance requirement or the distinction between Ms. Duran's full-time employment during a part of school year 2008-09 and her part-time work as a substitute for the balance of that year and the summer.   “Performs” Means “Completes”

The “summer vacation” ineligibility rule applicable to educators in section 443.091(3)(a), like all provisions of the unemployment compensation chapter, is “liberally construed in favor of a claimant of unemployment benefits who is unemployed through no fault of his or her own.” ²  The rule applies only if the claimant “performs those services” in the first of those academic years or terms.   In this case, and through no fault of her own, Ms. Duran was not allowed by MDCPS to complete her performance of full-time educational services in school year 2008-09.   Webster's definition of “perform” notes the derivation of the word from the Latin verb, “to complete, carry out, accomplish.” ³  The primary meanings include those terms and “to bring to a finished state.”   The Legislature made no reference to ineligibility for a teacher who works two days in a term and is then laid off, or to any other kind of partial performance.   Ms. Duran was not ineligible for unemployment benefits during the summer under this provision.

Substitute Teaching and “Partial Unemployment”

Nor did Ms. Duran's occasional work as a part-time substitute teacher before and during the summer of 2009 disqualify her from claiming benefits.   “Unemployment” includes individuals “partially unemployed” for a week of part-time work when “the earned income payable to [the claimant] is less than his or her weekly benefit amount.” § 443.036(43)(a), Fla. Stat. (2009).

In Palm Beach County School Board v. Florida Unemployment Appeals Commission, 576 So.2d 362 (Fla. 4th DCA 1991), the Fourth District recognized the “Catch 22 situation” involved when a full-time teacher is laid off but accepts part-time substitute teaching assignments to try to make ends meet while he or she searches for other full-time work:

If she accepts a substitute teaching assignment, she is disqualified from receiving benefits because she is employed, albeit on a nonstandard basis.   However, if she were to refuse work offered and for which she is qualified, then she would be disqualified for benefits. § 443.101(2), Fla. Stat. (1989).   Such a result is repugnant to the whole purpose of the unemployment compensation laws.

Id. at 363.   The Fourth District upheld the claimant's right to benefits (reduced by any earnings from the work as a substitute), because “[a]ny other result would only serve to discourage an unemployed individual from seeking what work he or she can find while seeking more permanent full time employment, to the detriment both of the individual and at greater cost to the unemployment compensation fund.”  Id. 365.

Conclusion

For these reasons, the FUAC Order of September 30, 2009, is reversed and the case is remanded for the reinstatement of Ms. Duran's unemployment compensation benefits (as reduced by her earnings as a part-time substitute teacher).

CORTIÑAS, J., concurs.

Isbelia M. Duran v. Florida Unemployment Appeals Commission

Case No. 3D09-2950

GERSTEN, J., dissenting.

I respectfully dissent and would affirm the Florida Unemployment Appeals Commission's (“FUAC”) decision to deny benefits for the summer months.

Isbelia M. Duran (“Duran”) was a full-time teacher for Miami Dade Public Schools (“MDPS”) during the 2008 to 2009 school year.   In April 2009, her full-time position was eliminated, but she remained with MDPS as a part-time substitute teacher.

Thereafter, Duran applied for unemployment compensation benefits, realizing her benefits would be reduced by her income as a substitute teacher.   She received these benefits during the school year.   The Agency for Workforce Innovation (“the Agency”) determined that she was ineligible for any benefits during the summer vacation period based on section 443.091(3)(a), Florida Statutes (2009).   Duran appealed to the FUAC, which affirmed the Agency's order.

Section 443.091(3)(a), Florida Statutes (2009), provides that:

Benefits are not payable for services in an instructional ․ capacity for an education institution ․ for any week of unemployment commencing during the period between 2 successive academic years ․ if the individual performs those services in the first of those academic years ․ and there is a contract or a reasonable assurance that the individual will perform services in any such capacity ․ in the second of those academic years.

Here, I disagree with the majority that the phrase “the individual will perform” makes Duran eligible for unemployment benefits during the summer months.   The Legislature did not distinguish between types of employment, full-time versus part-time when it included this language.

Further, by allowing recovery of unemployment benefits over the summer months, the majority effectively gives Duran income normally not available to a full-time or part-time teacher during the summer months.   Thus, Duran would receive the equivalent of full-time compensation, not available to other teachers, simply because her employment has changed from full-time to part-time during the preceding year.   This result would be not only illogical, but unfairly discriminatory.

Therefore, since Duran was employed, albeit part-time before the end of the school year and had a reasonable assurance of employment the following school year, she is not eligible for unemployment benefits during the summer months.   Accordingly, I respectfully dissent and would affirm the denial of benefits for the summer months.

FOOTNOTES

FN1. Emphasis is supplied throughout this opinion unless otherwise specified..  FN1. Emphasis is supplied throughout this opinion unless otherwise specified.

FN2. § 443.031, Fla. Stat. (2009)..  FN2. § 443.031, Fla. Stat. (2009).

FN3. Webster's Third New International Dictionary 1678 (1986)..  FN3. Webster's Third New International Dictionary 1678 (1986).