Yudin v. Department of Workforce Services ( 2015 )

2015 UT App 298THE UTAH COURT OF APPEALS
YURIY YUDIN,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20150864-CA
Filed December 17, 2015
Original Proceeding in this Court
Yuriy Yudin, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN,
and KATE A. TOOMEY.
PER CURIAM:
¶1 Petitioner Yuriy Yudin seeks judicial review of a decision
of the Workforce Appeals Board (the Board), which affirmed the
Department of Workforce Services’ (the Department) decision to
deny Yudin unemployment benefits. We decline to disturb the
Board’s decision.
¶2 The Board’s decision on a request for unemployment
benefits is a mixed question of fact and law that is more fact-like
because it “does not lend itself to consistent resolution by a
uniform body of appellate precedent.” See Carbon County v.
Workforce Appeals Bd., 2013 UT 41, ¶ 7, 308 P.3d 477 (citation and
internal quotation marks omitted). “Because of the fact-intensive
conclusions involved at the agency level,” the Board’s
determination is entitled to deference. Id. “When a petitioner
challenges an agency’s findings of fact, we are required to
uphold the findings if they are supported by substantial
Yudin v. Department of Workforce Services
evidence when viewed in light of the whole record before the
court.” Stauffer v. Department of Workforce Servs., 2014 UT App 63,
¶ 5, 325 P.3d 109 (citations and internal quotation marks
omitted).
¶3 Yudin filed a claim for unemployment benefits, listing the
reason for his job separation from the Salt Lake City School
District (the District) as a reduction in force.1 Yudin worked as a
part-time tutor for the District at an online high school during
the 2014--2015 school year. He resigned his tutoring position on
April 29, 2015, after his tutoring hours were decreased from
twenty-seven hours per week to about ten hours per week. He
was subsequently hired as a substitute teacher for the District on
May 13, 2015. Yudin accepted four or five assignments as a
substitute teacher before the District’s academic break for
summer. Yudin was told that he could return to work as a
substitute teacher when the next school year began on August
24, 2015. In fact, Yudin told the Department’s representative that
he would be returning to work as a substitute teacher when
school resumed. The Department denied unemployment
benefits on the grounds that Yudin was an employee of an
educational institution that was between academic terms and he
had a reasonable assurance of returning to work the next school
term. An administrative law judge (ALJ) and, ultimately, the
Board affirmed the denial of unemployment benefits.
¶4 The only separation from employment subject to review
was the separation that occurred when the school year ended for
the summer and Yudin was not able to serve as a substitute
1. Although Yudin makes assertions related to his separation
from a different school district where he worked as a teacher,
those assertions are unrelated to this case, which involves only
the application for benefits related to employment with the Salt
Lake City School District.
20150864-CA 2 2015 UT App 298Yudin v. Department of Workforce Services
teacher until the new school year resumed in the fall. See Utah
Admin. Code R994-405-1 (stating that if there is more than one
separation from the same employer, eligibility for
unemployment benefits is to be determined based upon the
latest separation occurring before a benefits claim is filed).
Specific statutory provisions and rules apply to benefits claims
made by persons employed by educational institutions. In
relevant part, Utah Code section 35A-4-405(8) provides that a
person employed by an educational institution is ineligible for
benefits for any period between two successive academic years if
the person has a contract or reasonable assurance that he will
perform services in that capacity in the second of the academic
terms. See Utah Code Ann. § 35A-4-405(8) (LexisNexis Supp.
2013). Accordingly, section 35A-4-405(8) “denies unemployment
benefits during periods when the claimant’s unemployment is
due to school not being in session provided the claimant has
been given a reasonable assurance that he . . . can return to work
when school resumes and the claimant intends to return when
school resumes.” Utah Admin. Code R994-405-801; see also Utah
Code Ann. § 35A-4-405(8). The administrative rules clarify that
unemployment insurance benefits will “only be available when
the claimant is no longer attached in any way to a school and the
reason for the unemployment is not due to normal school
recesses.” Utah Admin. Code R994-405-801. The claimant is
ineligible if all of the following elements are met: (a) the claimant
is an employee of an educational institution; (b) school is not in
session; and (c) the claimant has a reasonable assurance of
returning to work for an educational institution at the next
regular year or term. See id. R994-405-802. “A substitute teacher
is treated the same as any other school employee.” Id. R994-405-
806. “If the claimant worked as a substitute teacher during the
prior school term, he or she is presumed to have a reasonable
assurance of having work under similar conditions during the
next term and benefits will be denied when school is not in
session.” Id.
20150864-CA 3 2015 UT App 298Yudin v. Department of Workforce Services
¶5 It was undisputed that Yudin had been working for an
educational institution. He argued that his job significantly
changed as a tutor, which prompted him to resign that position
and accept a new position as a substitute teacher. Although he
claimed that the high school where he was a tutor had a
nontraditional schedule that would have allowed him to work
during the summer, the separation that was before the ALJ and
the Board in evaluating his appeal of the denial of benefits was
the separation applicable to his position as a substitute teacher,
which was linked to the standard academic year. Because Yudin
had a reasonable assurance that he would be able to return to
work as a substitute teacher for the District when school
resumed in the fall, he was disqualified from receiving benefits
during the period between academic terms.
¶6 Before the Board and before this court, Yudin has made
arguments and submitted evidence that were not presented at
the hearing before the ALJ. Addressing this material, the Board
noted that instructions in both the hearing notice and from the
ALJ at the hearing advised Yudin that the hearing was the
opportunity to present all testimony and evidence and that the
appeal decision would be based solely on the evidence
introduced at the hearing and provided to all other parties in
advance of the hearing. “Absent a showing of unusual or
extraordinary circumstances, the Board will not consider new
evidence on appeal if the evidence was reasonably available and
accessible at the time of the hearing before the ALJ.” Id.R994-508-305(2). The new material submitted to the Board
included statements from the website of the high school where
Yudin was employed as a tutor, excerpts of news reports, emails,
and similar information. The Board concluded that this new
evidence was available at the time of the hearing, that Yudin had
the opportunity to present it at the hearing, and that he had not
demonstrated any extenuating circumstances that would
support accepting new evidence after the hearing. We do not
disturb that determination. In addition, Yudin’s response to
20150864-CA 4 2015 UT App 298Yudin v. Department of Workforce Services
summary disposition filed in this court is largely comprised of
arguments that were never presented to or addressed by the ALJ
or the Board. We limit our consideration to the testimony and
evidence contained in the agency record.
¶7 Based upon the foregoing, we decline to disturb the
Board’s decision denying benefits.
20150864-CA 5 2015 UT App 298