Paynes v. Detroit Bd. of Educ., Docket Nos. 80571

• Decision Date: 18 June 1986
• Docket Number: Docket Nos. 80571,81053
• Citation: 32 Ed. Law Rep. 1077,388 N.W.2d 358,150 Mich.App. 358
• Parties: Linda L. PAYNES, Appellee, v. DETROIT BOARD OF EDUCATION, Appellant, and Michigan Employment Security Commission. Valerie Ann WHALEN, Appellee, v. DETROIT BOARD OF EDUCATION, Appellant, and Michigan Employment Security Commission. 150 Mich.App. 358, 388 N.W.2d 358, 32 Ed. Law Rep. 1077
• Court: Court of Appeal of Michigan — District of US

Page 358

388 N.W.2d 358

Linda L. PAYNES, Appellee, v. DETROIT BOARD OF EDUCATION, Appellant, and Michigan Employment Security Commission.

Valerie Ann WHALEN, Appellee, v. DETROIT BOARD OF EDUCATION, Appellant, and Michigan Employment Security Commission.

Docket Nos. 80571, 81053.

150 Mich.App. 358, 388 N.W.2d 358, 32 Ed. Law Rep. 1077

Court of Appeals of Michigan.

Submitted May 16, 1985.

Decided April 7, 1986.

Released for Publication June 18, 1986.

[150 MICHAPP 361] Mark H. Cousens and Peter A. Caplin, Detroit, for Linda L. Paynes and Valeria A. Whalen.

Lynne M. Metty, Detroit, for the Detroit Bd. of Educ.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Dennis J. Grifka and Jack Blumenkopf, Asst. Attys. Gen., for the Employment Sec. Com'n.

Before BEASLEY, P.J., and GRIBBS and LAMB, ^* JJ.

GRIBBS, Judge.

The Detroit Board of Education (Board) appeals from the Wayne County Circuit Court order affirming the Michigan Employment Security Commission (MESC) Board of Review's decision granting claimant teacher Linda L. Paynes unemployment benefits for the summer school recess period. The Detroit[150 MICHAPP 362] School District also appeals from the Wayne County Circuit Court order reversing the MESC Board of Review's decision which denied claimant teacher Valerie Ann Whalen unemployment benefits for the summer recess pursuant to M.C.L. Sec. 421.27(i); M.S.A. Sec. 17.529(i). ¹ M.C.L. Sec. 421.27(i); M.S.A. Sec. 17.529(i) denies employees of state educational facilities unemployment benefits between academic years during school recess periods, referred to as the "school denial period", when they have reasonable assurance of reemployment the following academic year. The statute provided in pertinent part:

"(1) With respect to service performed in an instructional, research, or principal administrative capacity for * * * an educational institution other than an institution of higher education as defined by section 53(3) [applicable], benefits shall not be paid to an individual based on those services for any week of unemployment * * * under * * * the following [situation]:

"(a) The week commences during the period between 2 successive academic years, * * * the individual performs the service in the first of the academic years * * * and if there is a contract or a reasonable assurance that the individual will perform service in an instructional, research, or principal administrative capacity for an educational institution in the second of the academic years * * *." (Emphasis added).

These cases were consolidated on appeal on the parties' motions. We affirm in part and remand.

BACKGROUND

Claimant Paynes

Linda L. Paynes contracted to teach for the Detroit Board of Education in 1979. Except for a [150 MICHAPP 363] brief lay-off period in 1980, she remained a full-time contract teacher until June of 1982, when her employment was terminated due to the depressed economic climate. She received notice of termination on April 20, 1982, along with an application for a position as a regular emergency substitute (RES) teacher. Paynes signed the RES application which was entitled "Agreement for Regular Emergency Substitute Service", on May 19, 1982. Her last day as a contract teacher was June 30, 1982.

An RES teacher is guaranteed employment for every day that the schools are open, but not always at the same school. The benefits given to an RES teacher also differ from those of a contract teacher. A contract teacher receives both medical and dental benefits for him- or herself and dependents, while an RES teacher must choose between medical and dental coverage, which applies only to the employee. An RES teacher is also not entitled to sick leave, leaves of absence or paid holidays. The RES position is for an indefinite period of time, and there are no assurances against lay-offs. As an RES teacher, Paynes would have had a decrease in wages from $109 per day to $63 per day.

On August 4, 1982, Paynes filed an application for unemployment benefits. The MESC originally determined that she became unemployed due to summer recess with job assurance for September of 1982. Accordingly, on September 2, 1982, the MESC denied her benefits for the summer of 1982, the "school denial period", pursuant to M.C.L. Sec. 421.27(i); M.S.A. Sec. 17.529(i), which denies teachers unemployment benefits during the summer school recess.

Paynes was scheduled to return to work as an RES teacher on September 11, 1982. However, due to an impending strike, all RES teachers were laid [150 MICHAPP 364] off in early September. Paynes attempted to "resign" from her RES position on September 13, 1982. She was informed by the Detroit Public Schools unemployment compensation representative that she did not need to do so to receive unemployment benefits because, upon her layoff in September, reasonable assurance of employment would cease to exist and the school denial period would end. Also, according to the representative, a teacher who had signed the application or agreement would only have to call the school system to strike his or her name off the RES list in order to rescind the application or agreement.

On September 15, 1982, the MESC redetermined that Paynes was eligible for unemployment benefits for the summer months because she was not given reasonable assurance of work in the same or a similar capacity. The Board of Education protested the redetermination. After a hearing before a referee, a written decision was issued on November 3, 1982, affirming the redetermination. The referee's decision was summarily affirmed by the MESC Board of Review on November 17, 1983, and summarily affirmed by the Wayne County Circuit Court on August 30, 1984. The Board of Education appeals as of right. Pursuant to M.C.L. Sec. 421.38(3); M.S.A. Sec. 17.540(3), the MESC has been made a party for purposes of judicial review.

Claimant Whalen

Valerie Ann Whalen was originally hired on November 1, 1979, by the Detroit School District Board of Education as an emergency substitute teacher, but the following day was reclassified as an RES teacher. On January 21, 1980, she became a contract teacher. In February of 1981, she took a leave of absence due to illness, which leave was to expire on July 1, 1981. On April 29, 1981, she [150 MICHAPP 365] received a layoff notice, effective June 30, 1981, due to economic necessity. The notice of termination informed her that she could apply for a position as an RES teacher the following school year. The letter also stated that, pursuant to the teachers' collective bargaining agreement, "teachers who are laid off may, upon application, be assigned as regular Emergency Whalen filed an application for unemployment benefits on August 14, 1981. On September 8, 1981, she received a letter from the Board of Education informing her to report to work as an RES teacher the following day. However, at that point she declined the position, preferring to wait for a contract position to become available. On October 8, 1981, the MESC determined that Whalen was eligible for benefits during the summer recess since she did not have reasonable assurance of full-time permanent employment in the 1981-1982 school year as a contract teacher. In a redetermination order dated November 12, 1981, the MESC affirmed her eligibility for summer recess benefits. At the Board of Education's request, a hearing was held before an MESC referee on January 5, 1982. The referee's written decision of January 13, 1982, determined that Whalen did receive reasonable assurance of employment for the 1981-1982 school year and refused to consider the suitability or terms of the employment in its determination. The referee's decision was affirmed [150 MICHAPP 366] by the MESC Board of Review on October 7, 1982, and rehearing was denied on January 11, 1983.

                Substitute Teachers (RES)".  (Emphasis added.)   She signed the enclosed RES application, which, as in claimant Paynes's case, was entitled "Agreement for Regular Emergency Substitute Service", on June 5, 1981.  According to Whalen, she understood the form she signed to be an application for work.  Her decrease in salary as an RES teacher would be from approximately $80 per day to $60 per day
                

Whalen appealed to the Wayne County Circuit Court. After a hearing on August 29, 1984, the circuit court reversed the order of the MESC Board of Review, and reinstated the initial determination that Whalen was eligible for unemployment benefits, holding that Whalen did not receive reasonable assurance of employment during the 1981-1982 school year and that suitability of the proferred work is a factor to consider when determining if the claimant is entitled to summer recess unemployment benefits. An order to that effect was entered on September 24, 1984. The Board of Education appeals as of right. Pursuant to M.C.L. Sec. 421.38(3); M.S.A. Sec. 17.540(3), the MESC has been made a party for purposes of appellate review. On appeal, the MESC has reversed its position in this case and urges this Court to affirm the decision of the circuit court.

DISCUSSION

"On appeal from decisions of the board of review, this Court may review questions of law or fact, Const 1963, art. 6, Sec. 28; MCL 421.38; MSA 17.540, but it can reverse only if the order or decision is contrary to law or is unsupported by competent, material and substantial evidence on the record. If, as in the case at bar, there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Chrysler Corp v Sellers, 105 Mich App 715, 720; 307 NW2d 708 (1981)." Gormley v. General Motors Corp, 125 Mich.App. 781, 784-785, 336 N.W.2d 873 (1983).

The common issue in both cases at bar is whether the MESC, in determining if unemployment benefits should be denied to a teacher for the summer recess period pursuant to the school denial period provision, M.C.L. Sec. 421.27(i); M.S.A. [150 MICHAPP 367] Sec. 17.529(i), can consider the terms...