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### 2013 AUG-5 A.-I S=3

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN H. THOMAS, Appellant,

v. STATE OF WASHINGTON, DEPARTMENT OF EMPLOYMENT SECURITY, Respondent. NO. 69252-6-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 5, 2013



### Lau, J. —John Thomas appeals from a Washington Employment Security Departmentcommissioner's decision denying his requestfor unemployment benefits. The commissionerapplied RCW 50.44.050 and determined thatThomas, an 

### elementary school lunchroom manager, was ineligible for benefits because he was a 

### school employee who soughtbenefits during a summerschool break period, despite having a reasonable assurance ofreturning to work atthe beginning ofthe next 

### academic year. Becausethe commissionercorrectly applied the law to the unchallenged factual findings, we affirm.69252-6-1/2

FACTS The facts are undisputed. The Seattle School District hired John Thomas as an elementary school lunchroom manager inJanuary 2008. Thomas'sjob duties include managing the kitchen, setting out dishes, cooking, cleaning, and handling the kitchen paperwork. Thomas works as a lunchroom managerduring the school year, which runs from Septemberto June. During each spring season in 2008 through 2011, the school district sent letters to lunchroom staffasking them to submittheir names ifthey were interested insummer groundskeeping or custodial work. Each year, Thomas submitted his name for this work. He accepted work as a custodian or groundskeeper during the 2008, 2009, and 2010 summer breaks. Shortly before the 2011 summer break, Thomas learned that the school district did not have a summer position available for him due to budget constraints. Though the school district did not offerThomas groundskeeping or custodial work in summer2011, Thomas knew before the end ofthe 2010-11 school yearthat he would be returning to work as lunchroom managerfor the 2011-12 school year. He resumed work as a lunchroom manager on September7, 2011. Because he had no summerwork with the school district, Thomas applied to the Washington Employment Security Departmentfor unemployment benefits in July 2011. The Department denied Thomas's application under RCW 50.44.050(2), the 

### "reasonable assurance" statute.1 Specifically, the Departmentdeniedbenefits because

1Asdiscussed in detailbelow, thisprovision denies unemployment benefits -2-69252-6-1/3
Thomas was a school employee who sought benefits during a school break period, though he had reasonable assurance of returning to work underthe same terms and conditions at the beginning ofthe next academic year. Thomas appealed the Department's decision and an administrative lawjudge (ALJ) held a hearing. The ALJ affirmed the Department's denial of benefits. Thomas petitioned the Department's commissionerfor review. The commissioner adopted the ALJ's findings offact and conclusions of law and affirmed the Department's denial of benefits, concluding that under RCW 50.44.050(2), Thomas was ineligible for benefits during the summer period that fell between two academic years. Thomas petitioned for review in King County Superior Court. The superiorcourt affirmed the commissioner's decision. Thomas appeals. ANALYSIS Standard of Review TheWashington Administrative Procedure Act (APA), chapter 34.05 RCW, governsjudicial review of a final administrative decision ofthe commissionerofthe Employment Security Department. Tapperv. Emp't Sec. Dep't, 122Wn.2d 397, 402, 858 P.2d 494 (1993). Underthe APA, a reviewing court may reverse an agency's 

### adjudicative decision if, among otherthings, the agency erroneously interpreted or applied the law, the agency's decision was not supported by substantial evidence, or 

### the agency's ruling was arbitrary orcapricious. RCW34.05.570(3)(d), (e), (i); Tapper, to individuals who (1) provide noninstructional services for an educational institution, (2) request benefits for a period falling between two successive academic terms oryears, 

### and (3) have a reasonable assurance that they will perform the same or similarservices inthe next academic term oryear. RCW 50.44.040(2). -3-69252-6-1/4
122 Wn.2d at402. The party challenging an agency's action carries the burden of demonstrating the action was invalid. RCW 34.05.570(1)(a). We review an administrative action from the same position as the superiorcourt and apply APA standards directly to the agency record. Tapper, 122 Wn.2d at402; Daniels v. Emp't Sec. Dep't, 168 Wn. App. 721, 727,281 P.3d 310. review denied. 175 Wn.2d 1028 (2012). Thus, we review the commissioner's decision, not the administrative lawjudge's decision or the superiorcourt's ruling. Verizon Nw., Inc. v. Emp't Sec. Dep't. 164 Wn.2d 909, 915, 194 P.3d 255 (2008). Acommissioner's decision is considered "prima facie correct." RCW 50.32.150; Anderson v. Emp't Sec. Dep't. 135 Wn. App. 887, 893, 146 P.3d 475 (2006). We review an agency's interpretation or application ofthe law de novo, giving substantial weightto the agency's interpretation ofthe statutes itadministers. Smith v. Emp't Sec. Dep't, 155 Wn. App. 24, 32, 226 P.3d 263 (2010); Honesty in Envtl. Analysis &Legislation v. Cent. Puget 

### SoundGrowth Mqmt. Hearings Bd.. 96Wn. App. 522, 526, 979P.2d 864(1999).2 We reviewfindings offactfor substantial evidence. Smith, 155 Wn. App. at 32. A reviewing courtwill not substitute itsjudgmentfor that ofthe agency regarding witness credibility
or the weight ofthe evidence. Smith, 155 Wn. App. at 35. Here, Thomas assigns no



### 2Courts consistently accord a "heighteneddegree ofdeference" to the commissioner's interpretation ofemployment law due to the Department's expertise in 

### administering the law. W. Ports Transp., Inc. v. Emp't Sec. Dep't, 110 Wn. App. 440, 449,41 P.3d 510 (2002); see also Safeco Ins. Cos. v. Meverinq. 102Wn.2d 385, 391, 687 P.2d 195 (1984) ("Where an agency is charged with administering a special field of 

### law and endowed withquasi-judicial functions, such as the Department ofEmployment 

### Security, because of the agency's expertise inthatfield, itsconstruction of words should be accorded substantial weight."). .4-69252-6-1/5

errorto the commissioner's findings (which incorporated the ALJ's findings) and, thus,
we treat them as verities on appeal. RAP 10.3(g); Tapper, 122 Wn.2d at 407. Reasonable Assurance Statute's Application Under RCW 50.44.050—also called the "reasonable assurance" statute— employees ofeducational institutions do not qualify for unemployment benefits during any periods between successive academic years or terms. Specifically, "[bjenefits shall not be paid" based on an individual's noninstructional services for an educational institution for any week of unemploymentwhich commences during the period between two successive academic years or between two successive academic terms within an academic year, ifsuch individual performs such services inthe first ofsuch academic years or terms and there is a reasonable assurance that such individual will perform such services inthe second ofsuch academic years or terms .... RCW 50.44.050(2); cf RCW 50.44.050(1) (parallel provision for a person's service "in
an instructional, research, or principal administrative capacity"). In short, a claimant who (1) performs noninstructional services for an educational institution, (2) seeks benefits for a period falling between two successive academic terms or years, and (3) has reasonable assurance that he or she will perform the noninstructional services 

### again in the second of the successive academicyears or terms, isineligible for benefits. RCW 50.44.050(2). RCW 50.44.050(5) defines "academic year" with reference to the particular institution at issue: "As used in this section, 'academic year' means: Fall, winter, 

### spring, and summerquarters orcomparable semesters unless, based upon objective

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criteria including enrollment and staffing, the quarter or comparable semester is not in fact a part ofthe academic yearfor the particular institution." (Emphasis added.) The reasonable assurance statute is "conforming" legislation intended to bring the State into compliance with federal law—specifically 26 U.S.C. § 3304—in orderto obtain federal funds for unemployment compensation. Compare RCW 50.44.050 with 

### 26 U.S.C. § 3304(a)(6)(A); see also Berland v. Emp't Sec. Dep't, 52 Wn. App. 401, 407, 760 P.2d 959 (1988). These federal funds "are intended to provide benefits for workers during aggravated periods ofunemployment." Berland, 52 Wn. App. at407-08. We have explained that "unemployment during a school vacation is not the type of unpredictable layoffthat unemployment benefits are designed to redress." Berland, 52 Wn. App. at408-09. Thomas's appeal focuses primarily on RCW 50.44.050(2)'s second factor: whether he sought benefits for a period falling between two successive academic years
or terms. He does not challenge that his claim for benefits was based on noninstructional services provided to an educational institution, nordoes he argue that he lacked a reasonable assurance ofreturning to work for the 2011-12 academic year. 

### Instead, he argues that because he previously worked year-round forthe school district—as lunchroom managerduring the school year and custodian or groundskeeper 

### during the summer—there was no break between terms and he qualified for benefits. Thomas cites our decision in Evans v. Employment Security Department, 72 Wn. 

### App. 862, 866 P.2d 687 (1994) forthe proposition that "when there is no 'break' or vacation 'between academic terms,' these reasonable assurance statutes do not 

### disqualify people from unemployment benefits merelybecause they are working in
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educational institutions." Appellant's Br. at 10. Thomas claims thatthe year-round nature of his work qualifies him for unemployment benefits under Evans. 

### InEvans, a parttime community college instructorrequested a summerteaching position atthe college, but she was not chosen forthe position. Evans, 72 Wn. App. at 864. She applied for unemployment benefits for the summerquarter, butthe Departmentdenied herclaim under RCW 50.44.050. Evans, 72 Wn. App. at 864. The 

### ALJ and commissioneraffirmed, but the superior court reversed and granted unemployment benefits for the summer. Evans, 72 Wn. App. at 864. The Department appealed to this court. Evans. 72 Wn. App. at 864. We framed the issue: [W]hether, under RCW 50.44.050(1), summer is an academic "term" at a community college
.... Ifsummer is not an academic term, but is a break between two successive terms (spring and fall, as the State here argues), then under RCW 50.44.050(1) Ms. Evans would not be eligible to receive unemployment benefits during the summer. On the other hand, ifsummer qualifies as a "term", then spring and fall terms are not successive, and unemployment benefits are allowed because summercannot be a period "between two successive academic years orterms." Evans, 72 Wn. App. at 865. We concluded that summer was an academic term atthe college because itoffered classes and awarded credits during the summerquarter and the parties failed to show thatthe summerterm was in any way "qualitatively different from the otherterms." Evans, 72 Wn. App. at 866. Thus, the period for which the claimant sought benefits occurred during an academic term, not between two successive academic terms. Accordingly, RCW 50.44.050 did not preclude the claimant from receiving unemployment benefits. Evans, 72 Wn. App. at 867. Evans is distinguishable. There, we determined thatthe summerterm at a 

### particular community college was not a breakbetween successive academic quarters

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### because the summerterm was partof a year-round academic program, i.e., it offered classes and awarded credits. Unlike in Evans, here, the evidence supports a 

### conclusion that summerbreak is a "period between two successive academic years." RCW 50.44.050(2) (emphasis added). Thomas argues he is inthe same position as the 

### claimant inEvans because he worked year-round and had no break in his workyear. But indetermining whether summerwas part ofthe academic year inEvans, we focused on the particularcharacteristics ofthe school, not on the work history of the individual claimant. See Evans, 72 Wn. App. at 865-67. We concluded that summer
was an academic term atthe particularcommunity college because the college offered classes, awarded grades, and granted credits during that time. Evans, 72 Wn. App. at 866-67. We based ourdecision in Evans on the fact thatthe college ran continuously
on a year-round schedule, not on details regarding the claimant's individual employment. Contrary to Thomas's contention, Evans did not "hold[] thatthe yearround nature ofthe employment changes the analysis for eligibility . . . ." Appellant's Reply Br. at 7-8. Evans also relied on an earlierversion of RCW 50.44.050 that did not yet define "academic year." Seeformer RCW 50.44.050 (1990). After Evans, the U.S. Department ofLabor advised our State's Employment Security Departmentthatthe decision raised a federal conformity issue. See ESHB 1821 Final Legislative Report 

### (1995). The legislature responded by adding a new definition of"academicyear" to RCW 50.44.050, specifically "withrespectto services
. . . performed by part-timefaculty 

### atcommunity colleges and technical colleges." Laws of 1995, ch. 296, § 2; ESHB 1821 

### Final Legislative Report (1995). In 1998, the legislature amended the statute again to
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make the "academic year" definition applicable to all benefits based on services to 

### educational institutions.3 Laws of1998, ch. 233, §2; ESHB 2947 Final Legislative Report (1998). RCW 50.44.050 currently provides thatthe Department, indetermining whether a 

### period is part of an academic year, should look to "objective criteria including enrollment and staffing . . . forthe particular institution." RCW 50.44.050(5). The administrative record demonstrates that during the 2011 summer break, Thomas was "on a school break" and had received reasonable assurance "to return to work in the same or similar 

### capacity afterthe Summerbreakfrom 6/23/11 through 9/6/11, returning 9/7/11." Certified Appeal Board Record (CABR) at 42. The record also contains a Seattle Public Schools calendar showing "Last Student Day[s]" on June 21 and 23, 2011, and the "First Day of School: 2011-12" on September7, 2011. CABR at48-49. No evidence indicates that summerwas part ofthis particular school's academic year or thatthe school ran on a year-round schedule likethe college in Evans. Similarly, no evidence indicates that Thomas had a continuing contract guaranteeing him work every summer. Thomas received summerwork in 2008, 2009, and 2010 not because he was promised
a permanent, fulltime, year-round position, but because he submitted his name each spring to indicate he was interested in available summerwork.



### 3The 1998amendment changed the definition of "academicyear" to"Fall, winter, spring, and summerquarters orcomparable semesters unless, based on objective criteria including enrollment and staffing, the quarter or comparable semester is not in fact a part ofthe academic yearfor the particular institution." Laws of 1998, ch. 233, § 2 (emphasis added).
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Thomas cites no authority otherthan Evans for his argumentthat the commissioner must "considerthe specific nature of [his] employment—regardless ofthe 'school employee' label" and thatthe year-round nature of his work made him eligible 

### forbenefits during summer2011.4 Appellant's Br. at 14; see Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (declining to considerarguments unsupported by reference to the record or citation to authority). Thomas argues that because he was unemployed "through no fault of his own," the Employment Security Act's preamble mandates thatthe Act's provisions be liberally construed in his favor. Appellant's Br. at 17. He also cites 3A Norman J. Singer, Statutes and Statutory Construction § 74.7 (6th ed. 2001 &Supp. 2003) for the 

### proposition that "[pjrovisions which disqualify employees from receiving employment benefits must be narrowly construed." Appellant's Br. at 17 (alteration in original). Thomas claims that the commissioner erroneously construed RCW 50.44.050's 

### disqualifying provisions "tobroadly apply to Mr. Thomas merely because he worked at a school but without considering his specific circumstances." Appellant's Br. at 17. But
as discussed above, neither the reasonable assurance statute northe relevant case law 

### requires the commissionerto consider a claimant's "specific circumstances." The 

## statutorylanguage isclearandthe commissionercorrectlyapplied it.5
4Thomas also cites no authority for his argumentthat "[m]erely having the label 'school employee' should not be sufficient reason to deny a person unemployment benefits, particularly when that person isemployed for the entire year over the prior three years as was true ofMr. Thomas." Appellant's Br. at 17-18. 

### 5The Department cites persuasive authorityfrom Minnesota, which has similar conforming legislation. See Swanson v. Indep. Sen. Dist. No. 625, 484 N.W.2d 432 

### (Minn. Ct.App. 1992) (court considered a claimfor benefits made by a year-round -10-69252-6-1/11
Thomas meets RCW 50.44.050(2)'s three disqualifying factors discussed above. 

### First, his claim forbenefits was based on noninstructional services provided to an educational institution. Second, he sought benefits for a period beginning in July 2011, which was between the two successive academic years of2010-11 and 2011-12. Finally, he testified that he knew he would be returning to work as a lunchroom manager 

### forthe 2011-12 school year. As discussed above, the party challenging the commissioner's decision bears the burden ofdemonstrating the commissioner's action
was invalid. RCW 34.05.570(1)(a). Thomas fails to meetthis burden. Weighing the factors is for the commissioner, and unless we are persuaded thatthe commissioner's conclusion is legally orfactually erroneous, we willnot disturb it. Thomas makes no factual challenge here, and we cannot say the commissioner's conclusion is legally wrong or arbitrary and capricious.
employee of a school district who was laid off on June 7,1991, but was informed on June 14 that she would be rehired July 1, 1991; under plain language reading of Minnesota's reasonable assurance statute, employee was ineligible for benefits between June 14 and July 1 because those two weeks ofunemploymentoccurred between two school years and she had reasonable assurance ofreemployment inthe upcoming school year); Halvorson v. County ofAnoka, 780 N.W.2d 385, 391 (Minn. Ct. App. 2010) (teacherworked full-time during summerfor several years, but as enrollment declined, school offered only reduced hours as a tutor in summer2008 while assuring his full-time work would resume inthe fall; court examined the particular school's characteristics and concluded the summer period fell between two successive academic 

### years, noting, "That [the claimant] had received nearfull-time hours during the summer of2006 or earlieryears does not mean that he meets the requirements for unemployment benefits forthe summerof2008."). These cases showthatforeignjurisdictions approach these issues similarly. We note, however, that neither Swanson nor Halvorson addressed a statutory definition of 

### "academicterm oryear." As the court in Halvorson pointed out, "The statute and Minnesota case law do not define 'academic yearorterm.'" Halvorson, 780 N.W.2d at 390. Here, our decision rests on a plain language reading of RCW 50.44.050—which defines "academic year" as discussed above. -11-69252-6-1/12
Attorney Fees and Costs 

### Thomas requests attorney fees and costs—payablefrom the unemployment compensation fund—under RCW 50.32.160 and RAP 18.1. RCW 50.32.160 provides for reasonable attorney fees ifwe reverse or modifythe commissioner's decision. 

### Because we affirm the commissioner's decision, Thomas is not entitled to attorneyfees. CONCLUSION BecauseThomas sought benefits forthe period between two successive 

### academic terms and had reasonable assurance ofemploymentinthe second term, the commissionerproperly denied unemployment benefits under RCW 50.44.050(2). We affirmthe commissioner's decision and deny Thomas's requestfor attorneyfees.

WE CONCUR: 

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