No.

13-110275-A

_______________________________________

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

_______________________________________

DEMOND JOHNSON
Petitioner-Appellee

vs.

STATE OF KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW

Respondent-Appellant

_______________________________________

BRIEF OF APPELLEE

________________________________________

APPEAL FROM THE DISTRICT COURT OF SHAWNEE COUNT, KANSAS

THE HONORABLE REBECCA CROTTY, DISTRICT JUDGE
DISTRICT COURT CASE NO. 12-C-1146

________________________________________

Demond Johnson
Pro Se
PO BOX 740664
San Diego, CA 92174
785-783-1034

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 TABLE OF CONTENTS

TABLE OF AUTHORITES............................................................... 2
STATEMENT OF ISSUES................................................................. 3
STATEMENT OF FACTS................................................................. 3
STANDARD OF REVIEW................................................................ 4
ARGUMENT.................................................................................. 5
CONCLUSION............................................................................... 9

TABLE OF AUTHORITES

Cases

Dougan v. Rossville Drainage Dist.

270 Kan. 468, 472, 15 P.3d 338 (2000)(civil)........................................ 4-5
Trees Oil Co. v. Kansas Corporation Comm'n.
279 Kan. 209, 226-27, 105 P.3d 1269 (2005)........................................ 5

Statutes

K.S.A. 77-623 …..................................................................................... 4

K.S.A. 77-621(a)(1) …............................................................................ 4
K.S.A. 77-621(b) …................................................................................ 4
K.S.A. 77-621(d) …................................................................................ 4
K.S.A. 77-621(c)(4) …............................................................................ 5
19 U.S.C. § 2296(a)(5)(H)(i) …............................................................... 5
19 U.S.C. § 2319(1) …............................................................................ 5
19 U.S.C. § 2319(2) …............................................................................ 5
19 U.S.C. § 2296(e) …............................................................................ 5
K.S.A. 44-705(c) …................................................................................. 6
K.S.A. 44-703(s) …................................................................................. 7
26 U.S.C. § 3304(a)(8) …....................................................................... 8
K.S.A. 44-706(a)(6) …........................................................................... 8

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Other Authorities

U.S. Dept. of Labor, Employment and Training Administration

Advisory System, Training and Employment Guidance Letter 21-
08: Pell Grants and the Payment of Unemployment Benefits to
Individuals in Approved Training
(2009).......................................................................................... 8

STATEMENT OF ISSUES

1. Is part-time and weekends-only work at McDonald's suitable

employment for a computer programmer?

2. Did the State of Kansas err in holding that Demond Johnson be

denied unemployment insurance under K.S.A 44-706(a) due to
leaving work at McDonald's?

STATEMENT OF FACTS

Demond Johnson was involuntarily separated from customary

occupation as computer programmer while working part-time and

weekends-only for McDonald's (R. vol. I., p. 25). He left Kansas to search

for suitable employment and enroll into school in California (R. vol. I., p.

28).

Demond Johnson informed the Agency of school attendance when

filing a weekly claim in January 2012 (R. vol. I., p. 61). He served the

Kansas Department of Labor School Attendance/Approved Training

Application (“K-BEN 317”) on January 30, 2012 (R. vol. I, p. 29). The

Agency made a determination on March 16, 2012 to disqualify Demond

Johnson from receiving unemployment benefits due to leaving

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employment to attend school or training program (R. vol. I., p. 1). Demond

Johnson petitioned for Judicial Review in Shawnee County District Court on

October 19, 2012 (R. vol. II., p. 3).

The District Court rules on issue that part-time weekend

employment does not qualify as suitable for a computer programmer (R.

vol. II., p. 35). It reversed the Kansas Department of Labor (“The Agency”)

decision to deny unemployment benefits. The Employment Security

Board of Review (“The Board”) appeals to the Court of Appeals of the

State of Kansas.

STANDARD OF REVIEW

Decisions on petitions for judicial review of agency actions are re-

viewable by the appellate courts as in other civil cases. K.S.A. 77-623.

The challenging party bears the burden of proving invalidity of the agency

action. K.S.A. 77-621(a)(1). The Court shall make a separate and distinct

ruling on each material issue. K.S.A. 77-621(b). Evidence in the record

before the court to support a particular finding of fact shall be judged in

light of all the relevant evidence in the record cited by any party. K.S.A.

77-621(d). Interpretation of a statute is a question of law where

appellate court review is unlimited. Dougan v. Rossville Drainage Dist.,

270 Kan. 468, 472, 15 P.3d 338 (2000)(civil). The Court may substitute its

own interpretation where it believes the agency misinterpreted the law.

Trees Oil Co. v. Kansas Corporation Comm'n., 279 Kan. 209, 226-27, 105

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P.3d 1269 (2005). The Kansas Judicial Review Act (“KJRA”) requires relief

to be granted when the court determines an agency has erroneously

interpreted or applied the law. K.S.A. 77-621(c)(4).

ARGUMENT

19 USC Chapter 12 - Trade Act of 1974 (“Trade Act”) provides

assistance for workers who lose their jobs due to international trade

(“Trade Adjustment Assistance” or “TAA”). TAA includes provisions that

allow adversely affected workers to attend training approved by The

Secretary of Labor. § 2296(a)(5)(H)(i) indicates training programs that

may be approved include but are not limited to “any training program or

coursework at an accredited institution of higher education.”

The term “adversely affected employment” is defined in § 2319(1)

as “employment in a firm, if workers of such firm are eligible to apply for

adjustment assistance.” An “adversely affected worker” is, per § 2319(2),

a worker who “because of lack of work in adversely affected employment,

has been totally or partially separated from such employment”. The term

“suitable employment,” defined by § 2296(e), is “work of a substantially

equal or higher skill level than the worker's past adversely affected

employment.”

Demond Johnson's past position as Programmer I with The State of

Kansas may not be considered adversely affected employment by

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definition of § 2319(1). Demond Johnson did not apply for Trade

Adjustment Assistance after his involuntary separation from work as a

computer programmer. However, the statutory definition of suitable

employment or suitable work, is applicable in this case. Computer

programming requires a higher level of skill than the work of a McDonald's

Crew Person (R. vol. I., p. 22).

In this case, Demond Johnson's prior experience as a computer

programmer was not considered by the Agency when reaching its original

determination. There were no full-time computer programmer positions

available at McDonald's for Demond Johnson (R. vol. I., p. 32). When

making a determination, the Agency must consider all facts of record with

regards to a claimant's prior training, experience, and earnings (R. vol. II.,

p. 34).

An individual should not be disqualified from receiving

unemployment benefits if they left work that does not constitute as

suitable employment to attend school, provided it does not interfere with

actively searching for work in the claimants customary occupation,

accepting suitable work, or being available for such work while claiming

unemployment insurance benefits. See K.S.A. 44-705(c).

Demond Johnson continued to maintain his job search record while

claiming unemployment insurance benefits (R. vol. I., p. 28). The initial

job search conducted in Kansas the first forty days of unemployment

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yielded no interviews and no rejection letters. Demond Johnson decided

to expand his search to an area that had more prospects in the

information technology job market.

Demond Johnson relocated to California in November of 2011 to

search for suitable work as a computer programmer (R. vol. I., p. 28).

Demond Johnson decided to attend school to obtain adequate training in

his career field, and complete his Associates of Arts coursework. After

applying for admission to San Diego City College in December of 2011,

Demond Johnson enrolled in night courses in January of 2012 (R. vol. I., p.

27).

Once Demond Johnson reflected the completion of coursework in

computer industry standards on his resume and job applications, the

number of interviews and rejection letters increased. Demond Johnson

eventually gained employment as Programmer/Analyst in July of 2012.

The definition of approved training outlined in § 2296(a) is

specifically related to Trade Adjustment Assistance. In general, Demond

Johnson's school attendance may be considered such training approved

under K.S.A. 44-703(s), where approved training is defined as “any

vocational training or course in basic educational skills, including a job

training program authorized under the federal workforce investment act

of 1998, approved by the secretary or a person or persons designated by

the secretary.” Accordingly, per 26 U.S.C. § 3304(a)(8), a claimant should

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be determined eligible to receive unemployment benefits while attending

school based on the fact that it does not interfere with ability to seek or

accept full-time work while attending school.

The Agency determination that Demond Johnson be disqualified

from receiving unemployment benefits due to leaving work without good

cause does not consider the approved training exception applicable under

K.S.A. 44-706(a)(6). Based on substantial evidence in the record, the

opinion of the agency may have agreed with public policy related to the

appropriate application of approved training requirements.

In the U.S. Department of Labor Training and Employment Guidance

Letter 21-08 dated May 9, 2009 (“TEGL 21-08”), state agencies are

encouraged to “widen the types of training and the conditions under

which education and training are considered approved training,” and to

“determine if their approved training requirements are appropriate to the

current economy.” In addition, opinions within TEGL 21-08 consider that

“post-secondary education and training are increasingly important for

success in the job market.”

There were several notifications made by Demond Johnson to The

Agency prior to the the eligibility investigation and determination in March

of 2012. Demond Johnson initially indicated he was attending school

when filing weekly unemployment insurance benefit claims for the week

of January 22, 2012 through January 28, 2012. Demond Johnson served

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the K-BEN 317 on the Agency in January 2012. A job termination notice

was served on the Agency in February of 2012 by Demond Johnson (R. vol.

I., p. 50). The Agency was aware of the fact that Demond Johnson was

attending school before it made its determination in March of 2012.

The completed K-BEN 317 was omitted from the agency record. On

October 31, 2012, Demond Johnson did request a copy of the completed

K-BEN 317 from the Agency, which he received in November of 2012. This

copy contained a stamp, which reflects the K-BEN 317 was received by the

Agency on January 31, 2012.

Demond Johnson received payment of unemployment benefits after

the school attendance investigation was completed by the Agency. There

was a temporary hold on unemployment benefit payments for weeks

between January 22, 2012, and February 5, 2012 (R. vol. I., p. 61).

Demond Johnson received benefit payments for those weeks in March of

2012 (R. vol. I., p. 34).

CONCLUSION

There is sufficient evidence in the record to support a determination

that Demond Johnson remain eligible for unemployment insurance

benefits. The Board erred in its application of K.S.A. 44-706(a). Such

facts support the conclusion that part time weekend work at McDonald's

is not suitable employment for a computer programmer. Demond Johnson

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should not be considered disqualified for unemployment insurance

benefits due to leaving work not suitable to attend school and seek

employment in his customary occupation.

For the foregoing reasons, the Appellee, Demond Johnson,

respectfully requests that the Court affirm the district court ruling.

Respectfully submitted on February 10, 2014.

Demond Johnson
Pro Se
PO BOX 740664
San Diego, California 92174
785-783-1034 (Telephone)

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 CERTIFICATE OF SERVICE

I, Demond Johnson, hereby certify that The Brief of Appellee was served
via USPS First Class Mail to the following on February 10, 2014:

Carol G. Green, Clerk

Appellate Courts of Kansas
Kansas Judicial Center, Room 374
301 SW 10th Avenue
Topeka, KS 66612-1507

Justin McFarland, Attorney

Kansas Department of Labor
401 SW Topeka Blvd.
Topeka, KS 66603

T & T Mgmt. Co. Inc.

Attn: Personnel
PO BOX 5008
Topeka, KS 66605

Signed ______________________________ Date ___________________

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