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07/25/78 RICHARD J. CUSACK v. DIRECTOR DIVISION

July 25, 1978

RICHARD J. CUSACK
v.
DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY



Essex. Civil action commenced in the District Court of Peabody on February 24, 1977. The case was heard by Tiffany, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Employment Security, Eligibility for benefits, Teacher. Constitutional Law, Equal protection of laws.

The opinion of the court was delivered by: Hennessey

A tenured public school teacher who was under a contract of employment extending from September 1 to August 31 of the following year was not in "total unemployment" within the meaning of G. L. c. 151A, § 1 (r) (2), during the summer months. [98-99]

A tenured teacher under a contract of employment was not denied equal protection of the laws by the fact that he was not entitled to unemployment compensation under the provisions of G. L. c. 151A, § (1) (r) (2), during the summer months. [99-100]

This is an appeal from a decision in the District Court of Peabody affirming a decision of the board of review of the Division of Employment Security (board) which found the plaintiff ineligible to receive unemployment compensation during the months of July and August, 1975. This decision was based on the board's agreement with the review examiner's Conclusion that the claimant, a tenured public school teacher, was not in "total unemployment" within the meaning of G. L. c. 151A, § 1 (r) (2), during the summer months. The claimant filed an appeal on May 2, 1977, from the District Court decision, and the presiding Judge reported the case to this court as required by G. L. c. 151A, § 42. We conclude that there was no error in the proceedings below. Accordingly, we affirm the decision of the District Court.

There is substantial agreement as to the following facts.

The claimant, Richard J. Cusack, held two jobs during the 1974-1975 school year. He was both a tenured seventh grade teacher for the city of Salem and an employee of Eastern Racing Associates, working Saturdays, Sundays, and holidays as a ticket seller at the Suffolk Downs race track.

As a public school teacher, Cusack worked pursuant to an agreement between the school committee of Salem (school committee) and the Salem Teachers' Union, which agreement was in effect from September 1, 1974, to August 31, 1975. Under this agreement, teachers are hired to teach classes 180 days from early September to late June of the following year. They are paid an annual salary in twenty-six instalments on the Friday of every second week, but may elect to receive their July and August payments in a lump sum in June. This method of payment is consistent with G. L. c. 71, § 40, as amended through St. 1973, c. 52, § 15, which provides that "he compensation paid to [public school] teachers shall be deemed to be fully earned at the end of the school year, and proportionately earned during the school year. Payment of such compensation may be deferred to the extent that equal payments may be established for a twelve month period including amounts payable in July and August subsequent to the end of the school year."

During the months of July and August, 1975, no races were scheduled at Suffolk Downs. Accordingly, Cusack stopped work as a ticket seller. He claimed unemployment benefits on July 7, 1975.

On June 28, 1976, the Division of Employment Security made an initial determination that due to Cusack's status as a tenured teacher under contract with the school committee he was not "unemployed" within the meaning of the Employment Security Act. In substance, this determination was adopted by the division's review examiner and board of review, and was accepted by the Judge below.

1. Cusack points out that under G. L. c. 151A, § 1 (r) (2), as amended through St. 1951, c. 763, § 1, an individual is in "total unemployment in any week in which he performs no wage-earning services whatever, and for which he receives no remuneration, and in which, though capable of and available for work, he is unable to obtain any suitable work." Cusack argues that he meets this definition because (1) he performed no wage-earning services during the months of July and August under his contract with the school committee, and (2) he received remuneration only for services rendered through the end of June, and not for any services attributable to the summer months. We find these arguments unpersuasive.

It is well settled that the general purpose of the Employment Security Act is "to afford benefits to persons who are out of work and unable to secure work through no fault of their own." Howard Bros. Mfg. Co. v. Director of the Div. of Employment Security, 333 Mass. 244, 248 (1955). See Kalen v. Director of the Div. of Employment Security, 334 Mass. 503, 506 (1956); Howes Bros. Co. v. Unemployment Compensation Comm'n, 296 Mass. 275, 282 (1936). The granting of unemployment benefits, therefore, assumes some sort of severance of the employment relationship. *fn1 See, e.g., Western Elec. Co. v. Director of the Div. of Employment Security, 340 Mass. 190, 193 (1960). No such severance occurred here. The contract under which Cusack worked did not terminate in June, but remained in effect until August 31, 1975. Moreover, as a tenured teacher in the Salem public schools, Cusack not only had every expectation of returning to teach in September, see G. L. c. 71, ...


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