Slominski v. Employment Div.

• Decision Date: 26 December 1985
• Docket Number: 84-AB-1782,AB-1492
• Citation: 711 P.2d 215,77 Or.App. 142
• Parties: , 29 Ed. Law Rep. 806 Anne M. SLOMINSKI, Petitioner, v. EMPLOYMENT DIVISION and Parkrose High School, Respondents. 84-; CA A33925 (Control), CA A34603 (Cases Consolidated).
• Court: Oregon Court of Appeals

Page 215

711 P.2d 215

77 Or.App. 142, 29 Ed. Law Rep. 806

Anne M. SLOMINSKI, Petitioner, v. EMPLOYMENT DIVISION and Parkrose High School, Respondents.

84-AB-1492, 84-AB-1782; CA A33925 (Control), CA A34603

(Cases Consolidated).

Court of Appeals of Oregon.

Argued and Submitted Oct. 24, 1985.

Decided Dec. 26, 1985.

Terrance J. Slominski, Portland, argued the cause and filed the brief for petitioner.

Kendall M. Barnes, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Claimant is a teacher who applied for unemployment benefits for two periods during the summer recess of 1984. The first claim was for June 17 to July 7, and the second was for July 8 to September 8. The Employment Division determined that she was disqualified from receiving benefits by ORS 657.167, and the referees agreed with that determination after two separate hearings. EAB affirmed the decision in two orders, with one member dissenting in the first claim only. Claimant seeks reversal of the orders.

ORS 657.167(1) provides:

"Benefits based on service in an instructional, research or principal administrative capacity for a school, college, university or other educational institution shall be payable to an individual in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years * * * if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms. * * *"

OAR 471-30-075 defines "reasonable assurance":

"With respect to the application of ORS 657.167, 'reasonable assurance' means a written contract, written notification, or any agreement, express or implied, that the employe will perform services in the same or similar capacity for any educational institution during a subsequent academic year or term or in the period immediately following a recess period."

Cases interpreting those rules hold that a teacher is disqualified from unemployment benefits during a summer recess if he or she has a reasonable assurance of performing a similar kind and quantity of work in the year following the recess as was performed in the year preceding the recess. In Johnson v. Emp. Div., 59 Or.App. 626, 651 P.2d 1365 (1982), the claimant worked as a substitute teacher in the year preceding the summer recess and had a reasonable assurance of working as a substitute in the year following the recess. We held that he was disqualified from receiving benefits. In a case where the claimant was employed as a full-time teacher in the year preceding a summer recess and had accepted a part-time position for the year following the recess, we held that ORS 657.167(1) did not disqualify the claimant, because the quantity of work of which he was assured after the recess was much less than that which he performed in the year preceding the recess. Kelly v. Employment Division, 74 Or.App. 69, 701 P.2d 448 rev. den. 300 Or. 111, 707 P.2d 583 (1985).

The primary issue in this case is whether claimant had a reasonable assurance of performing services in the 1984-85 school year "in the same or similar capacity" as during the 1983-84 school years. The first disputed issue concerns the capacity in which claimant performed services during 1983-84. It is undisputed that she worked a total of 104 days during that school year and that she worked every school day between March 26 and June 14, 1984. She testified that she worked as a substitute teacher before March 26 and as a "temporary" teacher after that date. She considered herself a "regular" teacher for that time. She stated she had a verbal agreement that she would work for the school district until the end of the school year, whereas a substitute teacher has no obligation to work when called. Claimant also testified that she was paid approximately $83 per day as a temporary teacher, whereas she was paid $58 a day as a substitute, although in neither situation was she entitled to any other employment benefits. She also undertook responsibilities for planning classes and working "regular teacher full days," which a substitute would not have done.

The payroll clerk for the school district testified that all work reports which she received were for claimant as a substitute teacher and that she was not aware of a contract with claimant. She also testified that substitute teachers working more than 10 days on the same assignment receive a higher rate of pay. The clerk also testified that the school district sent a letter to all substitutes, including claimant, which was dated July 3 and mailed July 5, 1984, expressing the district's intent to employ them as substitutes in 1984-85. The letter reads in part:

"Dear Substitute:

"We want to take this opportunity to...