Denver Public Schools, Petitioner,
v.
Industrial Commission of
the State of Colorado, (Ex-Officio
Unemployment Compensation of
Colorado), and
Lenore Krinsky, Respondents.
No. 81CA0464.
644 P.2d 83, 3 Ed. Law Rep. 1131
Colorado Court of Appeals,
Div.
II.
Jan. 21, 1982.
Rehearing Denied Feb. 11, 1982.
Good & Stettner, P. C., Martin Semple, Denver, for petitioner.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty.
Gen., Mary J. Mullarkey, Sol. Gen., Alice L. Parker, Asst. Atty.
Gen., Denver, for respondents.
Lenore Krinsky, pro se.
VAN CISE, Judge.
Lenore Krinsky was employed as a substitute teacher by the Denver
Public Schools (DPS) and by other school districts in the Denver
metropolitan area during the 1979-80 school year. At the end of the
school year, she applied for unemployment compensation. The
Industrial Commission found that there was "insufficient evidence to
support a determination that the claimant had reasonable assurance
of reemployment with the interested employer," and ordered that
claimant had established her eligibility for a full award of
unemployment compensation benefits for the period from the end of
the school year through August 24, 1980 (the day before she resigned
from her job with DPS to take a full time job with another school
district). DPS petitions for review of this order. We set aside the
order.
The relevant section of the unemployment insurance statute is s
8-73-107(3)(a), C.R.S.1973, which provides in pertinent part:
"With respect to services in an instructional ... capacity for an
educational institution, compensation shall not be payable based on
such service for any week commencing during the period between two
successive academic years or terms ... to any individual if such
individual performs such services in the first of such academic
years or terms and if there is a contract or reasonable assurance
that such individual will perform services in any such capacity for
the educational institution in the second of such academic years or
terms." (emphasis supplied)
The evidence in the record is that, at the end of the school
year, claimant expressed a desire to be reemployed as a substitute
teacher for the following school year. She testified that there was
a mutual understanding that, in the event she did not obtain a
contract as a full-time teacher, she would be available to
substitute, and she was verbally assured that she would remain on
the active substitute list and could return in the fall unless DPS
was notified otherwise. Also, she received from DPS a reasonable
assurance form which indicated that her name would be on the
substitute teacher list for the fall term. DPS contends this is
sufficient evidence of "reasonable assurance" of employment for a
substitute teacher. We agree with DPS.
In Herrera v. Industrial Commission, 197 Colo. 23, 593 P.2d 329
(1979), our Supreme Court affirmed a denial of benefits to a DPS
food service worker who had sought unemployment compensation for the
period between two school terms. The court held that a "reasonable
assurance" exists when there is "a written, verbal, or implied
agreement that the employee will perform services in the same
capacity during the ensuing academic year or term." The only
evidence to establish such an agreement in Herrera was the
employee's expressed intent to work for DPS and a signed form from
DPS stating an intent to rehire the employee for the coming term
"depending on continued need." Although Herrera dealt with a federal
statute, the pertinent statutory language is identical and the
court's rationale is applicable and dispositive of the issue on this
appeal.
Therefore, here, the Commission placed an unreasonable burden on
DPS in dealing with substitute teachers by its ruling that:
"Before an individual is disallowed on the basis of having a
reasonable assurance, it must be shown through competent evidence
that the claimant will have a reasonable assurance of actually
working ..." (emphasis supplied)
The Commission's finding that there did not exist a reasonable
assurance of reemployment or "reasonable assurance of actually
working" is not supported by the evidence, and is in direct conflict
with Herrera v. Industrial Commission, supra. See also Board of
County Commissioners v. Martinez, 43 Colo.App. 322, 602 P.2d 911
(1979); Milkowski v. Illinois Department of Labor, 82 Ill.App.3d
220, 402 N.E.2d 646 (1980); Ellman v. Pennsylvania Unemployment
Compensation Board, 407 A.2d 478 (Pa.Cmwlth.1979).
The order is set aside, and the cause is remanded with directions
to disallow benefits on this portion of the claim.
Enoch, C. J., and Kelly, J., concur.
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