Third District Court of Appeal State of Florida, July Term, A.D. 2012

Transcription

1 Third District Court of Appeal State of Florida, July Term, A.D Opinion filed July 11, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal No Carlos P. Vidal, Appellant, vs. The Florida Reemployment Assistance Appeals Commission and the Dade County School Board, Appellees. An Appeal from The Florida Reemployment Assistance Appeals Commission. Barbara Green, for appellant. M. Elaine Howard, Deputy General Counsel (Tallahassee), for appellees. Before SUAREZ, LAGOA, and SALTER, JJ. SUAREZ, J.

2 Carlos Vidal appeals a final order of the Reemployment Assistance Appeals Commission (RAAC) denying his application for unemployment benefits during the summer of This appeal turns on whether a statute disqualifying teachers from receiving unemployment benefits for the summer vacation in between school years applies to Mr. Vidal. We find that section (3)(a), Florida Statutes (2010), does apply to Mr. Vidal because he was an active substitute teacher for the school years before and after the summer of As such, he is not entitled to unemployment compensation for the summer months claimed. Mr. Vidal was an active certified substitute teacher for the Miami-Dade County School Board from , and RAAC denied his request for unemployment benefits for the summers in between the and school years. An appeals referee found that Mr. Vidal was ineligible for benefits under section (3)(a), Florida Statutes (2010), because he was a certified substitute teacher and had reasonable assurance he would have work after the summer based upon his employment tradition as a substitute school teacher. Since 2004, Mr. Vidal had documentation that he was a certified substitute teacher and would give his substitute teacher ID to schools to find work. 1 Although he did not know when he would be called to work during the school year and was not given any written or verbal guarantees that he would have work after 1 Mr. Vidal did not know of an active substitute teacher list or if he were on such a list. 2

3 the summer was over, he did know, however, that schools had his contact information in order to call him if they needed him to work because he was certified, authorized and actively working for the School Board as a substitute teacher. Additionally, the appeals referee found, based on Mr. Vidal s testimony, that he was eligible to return to work on the same terms and conditions of the school year, and that he has continually has worked for the School Board during each academic year since October, A decision by RAAC can only be reversed if it is not supported by substantial, competent evidence. Thomas v. Precision Response, 920 So. 2d 703, 704 (Fla. 3d DCA 2006). Courts must defer to RAAC s factual findings, but may overturn decisions with erroneous conclusions of law. City of Coral Gables v. Coral Gables Walter F. Stathers Mem l Lodge 7, 976 So. 2d 57, 63 (Fla. 3d DCA 2008). RAAC relied on section for its decision denying Mr. Vidal benefits, which states that [b]enefits 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... and there is a contract or a reasonable assurance that the individual will perform services in any such capacity for such educational institution... in the second of those 2 The claimant has admitted not working during any of the summers between the academic school years since

4 academic years (3)(a), Fla. Stat. (2010) (emphasis added). Under the same section, reasonable assurance is defined as a written or verbal agreement, an agreement between an employer and a worker understood through tradition within the trade or occupation, or an agreement defined in an employer s policy (36), Fla. Stat. (2010). Mr. Vidal testified that he had worked as a substitute teacher in every academic year since 2004, that he had not worked during any of the summers as a substitute teacher, that he had been called by the School Board to continue working as a substitute teacher after every summer break since 2004, that he had documentation that he was certified as a substitute teacher, and he knew that schools had his name and phone number to call him to substitute because he was certified and authorized to work as a substitute teacher. Section (3)(a) does not require that Mr. Vidal have a written contract or guarantee that he will be performing services for the School Board in the second half of the academic year to be ineligible for unemployment compensation during the summer. The statute only requires a reasonable assurance that he will perform any service for the School Board after the summer recess. A reasonable assurance by statutory definition can be based on tradition in the occupation. Therefore, there was substantial, competent evidence to support the referee s finding that, based on Mr. Vidal s employment tradition with the Miami- 4

5 Dade School Board, he was reasonably assured of employment for the school term after the summer of See Brown v. Fla. Unemployment Appeals Comm n, 81 So. 3d 646 (Fla. 1st DCA 2012) (holding that substitute teacher was not entitled to unemployment benefits for summer vacation period although she was not guaranteed teaching assignment for upcoming academic year, where she was a substitute teacher for prior academic year and had a signed renewal application and was reasonably assured of re-employment for upcoming year); Parzik v. Unemployment Appeals Comm n 711 So. 2d 636, 636 (Fla. 5th DCA 1998). Accordingly, RAAC s decision cannot be overturned. 3 Affirmed. LAGOA, J., concurs. 3 The dissent suggests that RAAC should follow its November 2007 decision wherein a representative of the School Board did not attend the hearing and RAAC overturned the decision of the hearing referee and awarded Mr. Vidal unemployment compensation for the summer months. RAAC stated that there was no evidence in the record to support the referee s finding of reasonable assurance. However, RAAC looked only at that one academic year of his employment; whereas, in the present appeal, the referee and RAAC looked at Mr. Vidal s employment history with the School Board and noted that since 2004 he has been called to serve as a substitute teacher in every academic year after summer break. As such, the finding of the referee and RAAC that there was substantial competent evidence, based on his employment tradition to conclude he had a reasonable assurance of being called again to serve as a substitute teacher in the subsequent academic school year and was, therefore, ineligible for unemployment compensation during the summer months, should be upheld. 5

6 SALTER, J. (dissenting). Vidal v. Florida Unemployment Appeals Commission Case No. 3D I respectfully dissent; I would reverse and remand the case for the payment of the $ weekly benefit computed by the Agency for Workforce Innovation in its initial wage transcript and determination. The Dade County School Board did not submit any written evidence, offer any testimony, or otherwise appear during the hearing on Mr. Vidal s appeal. His timely written appeal from the Agency s decision of ineligibility asserted that he was not subject to the special summer vacation rule, section (3)(a) and (c), Florida Statutes (2010), for teachers because he had no contract, agreement, or other assurance of being employed, for the next school term. During the hearing on his appeal, Mr. Vidal testified under oath that he had no contract and no assurance of any kind that he would be called by any school to work. He testified that he had not been called to teach, and thus had not been paid a per diem fee for doing so, after the school year ended on June 9, As noted, Dade County Public Schools neither appeared at the hearing nor submitted any written evidence or pleading to the contrary. During his further appeal from the adverse decision by the Agency s appeals referee, Mr. Vidal submitted to the Unemployment Appeals Commission a copy of the Commission s opinion in his favor relating to his unemployment benefits (also 6

7 after working a number of substitute teaching days for Dade County Public Schools during the preceding regular school year) claimed for the summer of The Commission s 2007 ruling in that case held: The record reflects the claimant worked for the employer as a substitute teacher through the end of the 2006/2007 school year. Because the employer did not notify the claimant he could not return to work as a substitute teacher for the 2007/2008 school year and because the claimant had worked in the 2006/2007 school year, the referee concluded the claimant had a reasonable assurance of employment. The claimant, who last worked as a substitute teacher for the employer on May 23, 2007, was the only party at the hearing. He testified he did not receive a contract at the end of the 2006/2007 school year for the next term and also did not receive any verbal assurances that he would be rehired for the next school year. Neither the claimant nor the employer (which did not appear at the hearing) asserted that the employer had informed the claimant (directly or by policy) that he would always be assured of a job in the next school year unless told otherwise. Consequently, the record contains no competent evidence to show the claimant was provided with reasonable assurance, as that term is used in the statute, of being rehired for the 2007/2008 school year. The claimant s testimony that he was never advised he could not return to work for the next school year and he has worked in the 2007/2008 school year is insufficient and cannot serve asa a basis to retroactively find the claimant had a reasonable assurance of reemployment. [Emphasis added]. The Commission and district court decisions referred to by the majority involve records in which the school board or district presented competent substantial evidence at the evidentiary hearing. In the case at hand, however and as in Mr. Vidal s successful appeal the school board presented no evidence whatsoever. The Commission should follow its own precedent which 7

8 contains similar facts as a matter of established administrative principles and sound public policy. Villa Capri Assocs., Ltd. v. Fla. Hous. Fin. Corp., 23 So. 3d 795, 798 (Fla. 1st DCA 2009). As defined in section (36), Florida Statutes (2010), and under the rule of liberal construction in favor of the claimant (section , Florida Statutes (2010), applicable to the entire unemployment compensation benefits chapter), reasonable assurance is something more than a mere possibility that is entirely subject to the employer s unilateral and unfettered discretion. Mr. Vidal had no such assurance. For these reasons, the denial of unemployment compensation benefits was not supported by substantial competent evidence, was contrary to the Commission s own 2007 ruling on the same issue between the same parties, and should be reversed. I therefore respectfully dissent. 8