DE ELLA E PATTERSON, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee worked as a permit teacher for the employer, a municipal school district, beginning in 2003. Her last day of work was June 16, 2004 (week 25).

The employee had worked as a substitute teacher for the employer. In the 2003- 2004 school year she had a regular teaching assignment. The employee taught special education classes. The employee signed a contract indicating that it automatically renewed each year unless timely notice was given that it would not be renewed. On May 27, 2004 (week 22), the employer sent the employee a letter which stated, in relevant part:

As a permit teacher, you are not guaranteed reassignment to your current school nor are you eligible to access the school based interview process. The position you currently hold will be listed as a vacant position on your school's Staffing Needs Report.

If the District is not able to fill the vacancies in your area with certified teachers, you will be considered for assignment during the 2004-2005 school year.

The letter went on to indicate what documentation the employee had to submit to be considered for future assignment.

The issue to be decided is whether the employee was a school year employee of an educational institution who performed instructional services during the 2003-2004 school year and had reasonable assurance that she would perform such services for an educational institution in the 2004-2005 school year.

Wisconsin Statute § 108.02(22m), provides as follows:

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis.

The employee's contract with the employer did not require the performance of services on a year-round basis. Accordingly, the employee is a "school year employee."

Wisconsin Statute § 108.04(17)(a), provides as follows:

A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

1. During the period between 2 successive academic years or terms, if the school year employee performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term. . .

Reasonable assurance is defined as:

"[A] written, verbal or implied agreement that the employe will perform services in the same capacity during the ensuing academic year or term. . . ."

H. R. Rep. No. 1745, 94th Cong. 2d Sess. (1976), reprinted in U. S. Code Cong. & Ad. New, 5997, 6036.

The employer asserted that the employee had reasonable assurance as it is always in need of special education teachers. The commission disagrees. Clearly, the employer was aware that its need for special education teachers outstripped the availability of individuals to teach in that area. However, there is no evidence that the employer imparted this knowledge to the employee. There is no long-standing history of re-employment with the employer upon which to find that the employee "should have known" that the employer's need for special education teachers outstripped available personnel. The May 27, 2004, letter does not assure the employee of any work, only that if she meets certain requirements and submits documentation to the employer, the employer will consider her for any vacancies that occur in the future. The employee would not be placed until after certified teachers were placed in positions. There was no written, verbal or implied agreement in this case that the employee would perform services for the employer in the 2004-2005 school year in the same or similar capacity as performed in the 2003-2004 school year.

The commission therefore finds that the employee performed services in an instructional, research or principal administrative capacity, for an educational institution during the 2003-2004 academic year, but that as of week 25 of 2004 the employee did not have reasonable assurance of performing such services in the next academic year, within the meaning of Wis. Stat. § 108.04(17)(a).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2004, if she is otherwise qualified.

Dated and mailed November 24, 2004
pattede . urr : 132 : 1 :  ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility or demeanor. The commission has not reversed the ALJ on the basis of witness credibility. The ALJ found that the employee knew or should have known that the employer's need for special education teachers would be so great that she would return to work for the employer in the next academic year. However, the commission finds nothing in the record to support a finding that the employee actually knew that the employer would need her services in the next school year, or that the employee should have had such knowledge.

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uploaded 2004/11/29