#### Isbelia M. DURAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.

No. 3D09-2950.

District Court of Appeal of Florida, Third District.

May 16, 2012.

Rehearing Denied Nov. 5, 2012.

*1175Isbelia M. Duran, in proper person.

Louis A. Gutierrez, Senior Attorney, for appellee Florida Unemployment Appeals Commission; Walter J. Harvey, School Board Attorney, and Arianne Suarez and Henry Suarez, Assistant Attorneys.

Before SUAREZ, CORTINAS, and SALTER, JJ.

*On Motion for Rehearing*

CORTINAS, J.

On consideration of the appellees’ pending motion for rehearing, the Court grants the motion for rehearing, withdraws its prior opinion issued November 10, 2010, and substitutes the following opinion.

Isbelia Duran, a non-attorney representing herself, appeals a final order of the Florida Unemployment Appeals Commission (the “Commission”) denying her application for unemployment benefits during the summer of 2009. Her appeal turns on the application of a special statutory provision disqualifying continuing teachers from receiving unemployment benefits during the summer interval between regular school terms. The applicable statute provides, in pertinent part:

> Benefits are not payable for services in an instructional, research, or principal administrative capacity for an educational institution or an institution of higher education for any week of unemployment commencing during the period between 2 successive academic years ... to any individual, if the individual performs those services in the first of those academic years or terms and there is a contract or a reasonable assurance that the individual will perform services in any such capacity for any educational institution ... in the second of those academic years or terms.

§ 443.091(3)(a), Fla. Stat. (2009). We find that the special rule of ineligibility does not apply in this case because Ms. Duran was never able to “perform” the full-time instructional service for which she was under contract. This statute disqualifies teachers who complete their work during the full academic year from receiving unemployment benefits during the summer months. It does not apply to cases such as this, where full-time teaching personnel are *terminated*prior to the end of the academic year.

Subsequent to her termination, Ms. Duran applied for unemployment compensation benefits based on her earnings credit as a full-time teacher. The Agency for Workforce Innovation (the “Agency”) determined that Ms. Duran was eligible for unemployment benefits from April 19, 2009 through April 18, 2010.1 However, based *1176on the statutory provision disqualifying continuing teachers from unemployment benefits, the Agency found that Ms. Duran was ineligible for benefits for the period dating from June 7 through August 22, 2009. Ms. Duran then timely appealed the decision to the Agency’s Office of Appeals, and a referee conducted a telephonic hearing. At the hearing, it was established that during the 2008-2009 academic year, Ms. Duran was working as a full-time “interim teacher” under Article XIX, Section 2 of the 2006-2009 Collective Bargaining Agreement between the United Teachers of Dade and Miami-Dade County Public Schools (MDCPS). The representative from MDCPS testified that Ms. Duran, unlike an on-call instructor or a part-time substitute teacher, worked as a “3100 teacher, which is a temporary full-time position.” The record clearly established that Ms. Duran worked on a full-time basis for at least sixteen straight weeks during the 2008-2009 academic term, after which she was terminated from her full-time position. Ms. Duran’s unrebutted testimony was that before the end of the academic term, her full-time position was terminated by MDPCS, after which she worked as a part-time substitute.2 Applying the statutory exception, the appeals referee expressly concluded that “[t]he evidence ... shows the claimant worked for the employer in the first of two successive school years and has a ‘reasonable assurance’ of working for the employer in a similar capacity during the second of those school years.” The Commission, in affirming the decision of the referee, provided no analysis or comment.

The referee erred in applying section 443.091(3)(a) to Ms. Duran’s case. The disqualification from unemployment benefits only applies to those who have *not been terminated,*and who, but for the operation of the statute, might be eligible for unemployment benefits during the summer months due to the episodic nature of academic work. Educators who have been terminated, like Ms. Duran, simply do not fall under the scope of the exception.

Contrary to our dissenting colleague’s viewpoint, it is not relevant that Ms. Duran elected to work as a substitute teacher during the remainder of the 2008-2009 academic year, as part-time substitute teachers are still eligible for unemployment benefits, though such benefits are reduced to reflect a claimant’s part-time income. Nor is it relevant that the MDPCS representative testified that Ms. Duran “could be called back on the first day of school if ... a school needs her.” A reasonable assurance of employment is a factor to be considered only in the case of an educator, researcher, or administrator who *was not terminated.*The plain language of the section 443.091(3)(a) establishes two necessary criteria for the disqualification from receiving unemployment benefits during the interval between academic years: (1) performing educational, research, or administrative services in the first of two successive academic years; *and*(2) possessing either a contract or a reasonable assurance of performing such services in the second. Ms. Duran, at the most, satisfies only one. Until such time as Ms. Duran became actually employed on a full-time basis, she remained eligible to receive the previously approved unemployment benefits from April 19, 2009 through April 18, 2010.

*1177The Agency properly found that Ms. Duran was eligible for benefits as a result of her termination, but incorrectly determined her eligibility between the terms since section 443.091(3)(a) is not applicable to her situation. For this reason, the Commission’s Order of September 30, 2009, is reversed and the case is remanded for the reinstatement of Ms. Duran’s unemployment compensation benefits (as reduced by her earnings as a part-time substitute teacher).

Reversed and remanded with instructions.

SALTER, J., concurs.

1

. The record clearly shows that the Agency determined that Ms. Duran’s eligibility for unemployment benefits derived from her termination, and that her work as a substitute teacher, while reducing the benefits she would receive, would not disqualify her from receiving benefits. Her work as a substitute teacher was therefore relevant only to the *1176extent that it resulted in a reduction in the amount she was eligible to receive.

2

. Ms. Duran testified that she was “let go from my contract, terminated.” At that point, she accepted a substitute teaching position, “as a means for, you know, a job.”

SUAREZ, J.,

dissents.

I respectfully dissent. A decision by the Florida Unemployment Appeals Commission 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 the Florida Unemployment Appeals Commission’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). I would affirm the Florida Unemployment Appeals Commission’s (“FUAC”) decision to deny benefits for the summer months as the finding is supported by substantial, competent evidence in the record on appeal and the conclusions of law are not erroneous.

The majority opinion is based on the conclusion that Ms. Duran was a full-time employee of the Miami-Dade County Public Schools (“MDCPS”). The majority concluded that, because she could not be reasonably assured of full-time employment during the second half of the academic year, section 443.091(3)(a), Florida Statutes (2009), did not apply and she would have been entitled to unemployment compensation for the summer months between the academic years.

It is important to note the type of employment Ms. Duran had with the MDCPS. It is undisputed in the record on appeal that Ms. Duran was retained by the MDCPS for the 2008-2009 academic school year as a 3100 interim teacher. Pursuant to Article XIX, Section 2B of the 2006-2009 Collective Bargaining Agreement (“Agreement”) between the United Teachers of Dade, of which Ms. Duran is a member, and the MDCPS, an individual who is hired as a 3100 interim teacher is hired on a temporary basis, and without any expectation of continued employment beyond that approved, or until the position becomes unencumbered, or until the end of the school year. Therefore, whether or not she was used as a full-time teacher during that academic year, she was still a 3100 interim teacher.

In April 2009, Ms. Duran’s 3100 interim position was eliminated. She testified that she then applied for, and began receiving, unemployment compensation benefits. She received these benefits during the school year, but was informed that she was ineligible for the compensation during the summer months pursuant to section 443.091(3)(a). The testimony at the hearing was that she would again be eligible for compensation should the fall school year begin and the MDCPS not find a position for her. At the same time her interim position was eliminated, Ms. Duran automatically became an emergency temporary instructor available for assignment pursuant to Article XIX, Sections 1C and 2B of the Agreement. This is a position commonly referred to as a “substitute teacher.” It is important to note that pursuant to the terms of the Agreement, and as was testified to at the hearing by the representative of the MDCPS, a teach*1178er whose assignment ends during the course of the school year does not lose his or her job, but rather is automatically placed into the classification of substitute teacher. Therefore, pursuant to the Agreement, Ms. Duran had a position change from a 3100 interim teacher to that of a substitute teacher and served in both capacities during the academic year. Ms. Duran testified at the hearing that she was aware of the change in her classification and also that she subsequently did perform duties as a substitute teacher.

Section 443.091, Florida Statutes (2009), sets forth the conditions for any person who works in an instructional capacity to receive unemployment benefits. Section 443.091(3)(a), concerns the eligibility requirements of such a person to receive unemployment benefits during the summer months between two academic years. The statute states in pertinent part as follows:

> Benefits 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 ... to any individual, if the individual performs those services in the first of those academic year or terms and there is a contract or reasonable assurance that the individual will perform services in any such capacity for an educational institution ... in the second of those academic years or terms.

Therefore, pursuant to the statute, a person in an instructional capacity may not receive unemployment benefits during the summer months of two academic school years if the person had worked in an instructional capacity during the academic year, and there is a contract or reasonable assurance that the individual will work in any instructional capacity in the immediately following academic year.

The question then is whether Ms. Duran had a reasonable assurance that she would have been employed by the MDCPS in *any*instructional capacity after the summer months. It is important to note that the statutory requirement is whether she had a *reasonable*assurance to be placed in *any*instructional capacity. The testimony at the hearing by the representative of the school board, and the finding of the appeals referee, was that Ms. Duran did have a reasonable assurance, in fact better than a reasonable assurance, of working for the school board in the following academic year as a substitute teacher. The school board was not required to place her in a full-time position. The school board representative testified at the hearing that because Ms. Duran had performed duties as a substitute teacher during the school year, she was automatically active on the substitute teacher list for the next school year. The question was whether at the time of the hearing, which was during the summer months, Ms. Duran had a reasonable assurance of being called back at the beginning of the academic school period as a substitute teacher or in any other instructional capacity. The testimony from the representative of the MDCPS at the hearing was that she did. The statute does not require a guarantee that she will be called back, or a guarantee that she will be called back in the same position. It requires solely a reasonable assurance that she will be called back in any instructional position. The transcript from the hearing, which is part of the record on appeal, contains testimony from the representative of the School Board that there was a reasonable assurance that Ms. Duran would be called back, and the finding was such by the referee. *Brown v. Fla. Unemployment Appeals Comm’n,*81 So.3d 646, (Fla. 1st DCA 2012).

Additionally, it does not seem logical that the Collective Bargaining Agreement *1179hammered out by the United Teachers of Dade and the MDCPS and the Florida statutes are designed such that someone in Ms. Duran’s position would receive unemployment compensation during the summer when such is not available to either a full-time or a part-time employee with the MDCPS.

Our standard of review is whether there is substantial, competent evidence in the record to support the appeal referee’s finding of fact. It is undisputed in the record that Ms. Duran was employed on a temporary basis as a 3100 interim teacher and was reclassified to that of a substitute teacher and served in that position. There is substantial, competent evidence in the transcript of the hearing to support the appeal referee’s finding that she had a reasonable assurance of employment with the MDCPS after the summer break. Therefore, based upon our standard of review, I would affirm the referee’s findings of fact and, as such, his legal conclusion that Ms. Duran is not eligible for unemployment benefits during the summer months pursuant to section 443.091(3)(a), and would affirm the finding of the denial of benefits.