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                                                            GiAiE OF WAS!:;N::T;

                                                           2013 AUG-5 A.-I S=3




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JOHN H. THOMAS,                                NO. 69252-6-1


                    Appellant,                 DIVISION ONE


                    v.



STATE OF WASHINGTON,                           UNPUBLISHED OPINION
DEPARTMENT OF EMPLOYMENT
SECURITY,                                      FILED: August 5, 2013
                    Respondent.



      Lau, J. —John Thomas appeals from a Washington Employment Security

Department commissioner's decision denying his request for unemployment benefits.

The commissioner applied RCW 50.44.050 and determined that Thomas, an

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

school employee who sought benefits during a summer school break period, despite

having a reasonable assurance of returning to work at the beginning of the next

academic year. Because the commissioner correctly applied the law to the

unchallenged factual findings, we affirm.
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                                         FACTS


       The facts are undisputed. The Seattle School District hired John Thomas as an

elementary school lunchroom manager in January 2008. Thomas's job duties include

managing the kitchen, setting out dishes, cooking, cleaning, and handling the kitchen

paperwork. Thomas works as a lunchroom manager during the school year, which runs

from September to June.

       During each spring season in 2008 through 2011, the school district sent letters

to lunchroom staff asking them to submit their names if they were interested in summer

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 offer Thomas groundskeeping or custodial

work in summer 2011, Thomas knew before the end of the 2010-11 school year that he

would be returning to work as lunchroom manager for the 2011-12 school year. He

resumed work as a lunchroom manager on September 7, 2011.

       Because he had no summer work with the school district, Thomas applied to the

Washington Employment Security Department for unemployment benefits in July 2011.

The Department denied Thomas's application under RCW 50.44.050(2), the

"reasonable assurance" statute.1 Specifically, the Department denied benefits because



       1As discussed in detail below, this provision denies unemployment benefits
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Thomas was a school employee who sought benefits during a school break period,

though he had reasonable assurance of returning to work under the same terms and

conditions at the beginning of the next academic year.

      Thomas appealed the Department's decision and an administrative law judge

(ALJ) held a hearing. The ALJ affirmed the Department's denial of benefits. Thomas

petitioned the Department's commissioner for review. The commissioner adopted the

ALJ's findings of fact 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 superior court

affirmed the commissioner's decision. Thomas appeals.

                                        ANALYSIS


       Standard of Review

       The Washington Administrative Procedure Act (APA), chapter 34.05 RCW,

governs judicial review of a final administrative decision of the commissioner of the

Employment Security Department. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402,

858 P.2d 494 (1993). Under the APA, a reviewing court may reverse an agency's

adjudicative decision if, among other things, 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 or capricious. RCW 34.05.570(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 or years,
and (3) have a reasonable assurance that they will perform the same or similar services
in the next academic term or year. RCW 50.44.040(2).
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122 Wn.2d at 402. 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 superior court

and apply APA standards directly to the agency record. Tapper, 122 Wn.2d at 402;

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 law judge's decision or the superior court's ruling. Verizon Nw., Inc. v.

Emp't Sec. Dep't. 164 Wn.2d 909, 915, 194 P.3d 255 (2008). A commissioner'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 of the law de novo, giving substantial weight to the agency's

interpretation of the statutes it administers. 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

Sound Growth Mqmt. Hearings Bd.. 96 Wn. App. 522, 526, 979 P.2d 864 (1999).2 We
review findings of fact for substantial evidence. Smith, 155 Wn. App. at 32. A reviewing

court will not substitute its judgment for that of the agency regarding witness credibility

or the weight of the evidence. Smith, 155 Wn. App. at 35. Here, Thomas assigns no




       2Courts consistently accord a "heightened degree of deference" to the
commissioner's interpretation of employment 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 with quasi-judicial functions, such as the Department of Employment
Security, because of the agency's expertise in that field, its construction of words should
be accorded substantial weight.").
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error to 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 of educational 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 unemployment which commences during the period between two
       successive academic years or between two successive academic terms within an
       academic year, if such individual performs such services in the first of such
       academic years or terms and there is a reasonable assurance that such
       individual will perform such services in the second of such 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 academic years or terms, is ineligible 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 summer quarters or comparable 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 of the academic year for 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 order to

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 of unemployment." Berland, 52 Wn. App. at 407-08. We

have explained that "unemployment during a school vacation is not the type of

unpredictable layoff that unemployment benefits are designed to redress." Berland, 52

Wn. App. at 408-09.

      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, nor does he argue that

he lacked a reasonable assurance of returning to work for the 2011-12 academic year.

Instead, he argues that because he previously worked year-round for the school

district—as lunchroom manager during 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) for the proposition that "when there is no 'break' or

vacation 'between academic terms,' these reasonable assurance statutes do not

disqualify people from unemployment benefits merely because they are working in

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educational institutions." Appellant's Br. at 10. Thomas claims that the year-round

nature of his work qualifies him for unemployment benefits under Evans.

       In Evans, a part time community college instructor requested a summer teaching

position at the college, but she was not chosen for the position. Evans, 72 Wn. App. at

864. She applied for unemployment benefits for the summer quarter, but the

Department denied her claim under RCW 50.44.050. Evans, 72 Wn. App. at 864. The

ALJ and commissioner affirmed, 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 .... If summer 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, if summer
      qualifies as a "term", then spring and fall terms are not successive, and
      unemployment benefits are allowed because summer cannot be a period
      "between two successive academic years or terms."

Evans, 72 Wn. App. at 865. We concluded that summer was an academic term at the

college because it offered classes and awarded credits during the summer quarter and

the parties failed to show that the summer term was in any way "qualitatively different

from the other terms." 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 that the summer term at a

particular community college was not a break between successive academic quarters


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because the summer term was part of a year-round academic program, i.e., it offered

classes and awarded credits. Unlike in Evans, here, the evidence supports a

conclusion that summer break is a "period between two successive academic years."

RCW 50.44.050(2) (emphasis added). Thomas argues he is in the same position as the

claimant in Evans because he worked year-round and had no break in his work year.

But in determining whether summer was part of the academic year in Evans, we

focused on the particular characteristics of the 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 at the particular community college because the college offered

classes, awarded grades, and granted credits during that time. Evans, 72 Wn. App. at

866-67. We based our decision in Evans on the fact that the 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[] that the year-

round nature of the employment changes the analysis for eligibility . . . ." Appellant's

Reply Br. at 7-8.

       Evans also relied on an earlier version of RCW 50.44.050 that did not yet define

"academic year." See former RCW 50.44.050 (1990). After Evans, the U.S.

Department of Labor advised our State's Employment Security Department that the

decision raised a federal conformity issue. See ESHB 1821 Final Legislative Report

(1995). The legislature responded by adding a new definition of "academic year" to

RCW 50.44.050, specifically "with respect to services . . . performed by part-time faculty

at community 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 of 1998, ch. 233, § 2; ESHB 2947 Final Legislative
Report (1998).

       RCW 50.44.050 currently provides that the Department, in determining whether a

period is part of an academic year, should look to "objective criteria including enrollment

and staffing . . . for the 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 after the Summer break from 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 September 7, 2011. CABR at 48-49. No evidence

indicates that summer was part of this particular school's academic year or that the

school ran on a year-round schedule like the college in Evans. Similarly, no evidence

indicates that Thomas had a continuing contract guaranteeing him work every summer.

Thomas received summer work in 2008, 2009, and 2010 not because he was promised

a permanent, full time, year-round position, but because he submitted his name each

spring to indicate he was interested in available summer work.




       3The 1998 amendment changed the definition of "academic year" to "Fall, winter,
spring, and summer quarters or comparable semesters unless, based on objective
criteria including enrollment and staffing, the quarter or comparable semester is not in
fact a part of the academic year for the particular institution." Laws of 1998, ch. 233, § 2
(emphasis added).


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      Thomas cites no authority other than Evans for his argument that the

commissioner must "consider the specific nature of [his] employment—regardless of the

'school employee' label" and that the year-round nature of his work made him eligible

for benefits during summer 2011.4 Appellant's Br. at 14; see Cowiche Canyon
Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (declining to

consider arguments 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 that the 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 "to broadly 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 nor the relevant case law

requires the commissioner to consider a claimant's "specific circumstances." The

statutory language is clear and the commissioner correctly applied it.5


       4 Thomas also cites no authority for his argument that "[m]erely having the label
'school employee' should not be sufficient reason to deny a person unemployment
benefits, particularly when that person is employed for the entire year over the prior
three years as was true of Mr. Thomas." Appellant's Br. at 17-18.

       5The Department cites persuasive authority from 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 claim for benefits made by a year-round
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      Thomas meets RCW 50.44.050(2)'s three disqualifying factors discussed above.

First, his claim for benefits 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 of 2010-11 and 2011-12.

Finally, he testified that he knew he would be returning to work as a lunchroom manager

for the 2011-12 school year. As discussed above, the party challenging the

commissioner's decision bears the burden of demonstrating the commissioner's action

was invalid. RCW 34.05.570(1)(a). Thomas fails to meet this burden. Weighing the

factors is for the commissioner, and unless we are persuaded that the commissioner's

conclusion is legally or factually erroneous, we will not 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 of unemployment occurred
between two school years and she had reasonable assurance of reemployment in the
upcoming school year); Halvorson v. County of Anoka, 780 N.W.2d 385, 391 (Minn. Ct.
App. 2010) (teacher worked full-time during summer for several years, but as enrollment
declined, school offered only reduced hours as a tutor in summer 2008 while assuring
his full-time work would resume in the 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 near full-time hours during the summer
of 2006 or earlier years does not mean that he meets the requirements for
unemployment benefits for the summer of 2008.").
        These cases show that foreign jurisdictions approach these issues similarly. We
note, however, that neither Swanson nor Halvorson addressed a statutory definition of
"academic term or year." As the court in Halvorson pointed out, "The statute and
Minnesota case law do not define 'academic year or term.'" 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.
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      Attorney Fees and Costs

      Thomas requests attorney fees and costs—payable from the unemployment

compensation fund—under RCW 50.32.160 and RAP 18.1. RCW 50.32.160 provides

for reasonable attorney fees if we reverse or modify the commissioner's decision.

Because we affirm the commissioner's decision, Thomas is not entitled to attorney fees.

                                    CONCLUSION

      Because Thomas sought benefits for the period between two successive

academic terms and had reasonable assurance of employment in the second term, the

commissioner properly denied unemployment benefits under RCW 50.44.050(2). We

affirm the commissioner's decision and deny Thomas's request for attorney fees.




WE CONCUR:




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