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Cernek v. Board of Review and Community Medical Center


October 17, 2008


On appeal from the Board of Review, Department of Labor, 156,926.

Per curiam.


Submitted September 25, 2008

Before Judges Winkelstein and Fuentes.

Appellant, Georgeanna J. Cernek, appeals from a final decision of the Board of Review on October 3, 2007, affirming the August 13, 2007 decision of the appeal tribunal, which found that appellant was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a), on the grounds that she left work voluntarily without good cause attributable to her work. We affirm.

In 1990, Cernek began her employment with the Community Medical Center as a certified surgical technician. Her last day of work was August 18, 2006. At her hearing before the appeals examiner, appellant testified that she left work because "it was a continuing ongoing problem of a hostile [work] environment" as evidenced by her being "verbally and physically assaulted by a surgeon."

The assault occurred on June 22, 2006, when Dr. Michael Rosen, a hospital surgeon, directed profanities toward appellant when he asked her to activate a bipolar pedal, and she told him that it was illegal for her to do so. She testified that Dr. Rosen then screamed at her, stating: "if you can't [f---ing] do this for me I will [f---ing] cancel the case and I will [f---ing] wake this patient up and I will [f---ing] take my business elsewhere." At that point, the doctor "kicked the stool and he said [f---ing] stool, [f---ing] pedal, [f---ing] hospital, and he went on and on like that." Understandably, the doctor's actions upset appellant.

Appellant further testified that the doctor pushed her arm into a surgical device, which caused her pain. She then asked the operating room nurse to call 911. Although the nurse did not make that call, she contacted the surgical center's chief of surgery, as well as the surgical center's acting director. Appellant also spoke to her supervisor, and the surgical center had the incident investigated. Appellant testified that Dr. Rosen later admitted that he "lost it on that day."

Following the incident, appellant was no longer required to work with Dr. Rosen. The surgical center had ten operating rooms, and appellant was assigned to a different case and a different surgeon each day. Appellant was not satisfied, however, with that arrangement, as she was seeking to have all surgeons subject to a code of conduct to address the "hostility and violence" that she claims to have taken place in operating rooms. She was advised by the surgical center administration that the surgeons were independent contractors, not the surgical center's employees, but were nevertheless subject to the bylaws of the center's medical department. In addition, following that incident, the surgical center promised appellant a safe work environment, and no further incidents occurred involving appellant over the following two months.

Still dissatisfied, on August 17, 2006, appellant left work and filed a claim for workers' compensation, claiming a work-related disability. That claim was denied on the ground that her injury or illness was not work-related. Appellant then filed for, and collected, State disability benefits from August 17, 2006, through March 31, 2007. After all of her unpaid leave was exhausted and she had further exhausted her disability claim benefits, appellant still did not return to work. The surgical center held her position open and paid her health benefits during her roughly ten-month absence from work.

Appellant's physician declared her fit to return to work as of June 11, 2007, but she did not return because of what she considered the "violent" workplace environment. Co-workers told her of additional incidents that occurred in the operating room during her absence, where one surgeon threw a bloody clamp at a registered nurse, and in another case, a surgical technician complained of being verbally abused by yet another surgeon. Although indicating that the operating room violence had been ongoing for ten to fifteen years, appellant acknowledged that the surgical center had "a fabulous operating room. We do fabulous surgery. We do not injure[e] or harm our patients. We do have a small percentage of surgeons that are violent."

Meanwhile, in February 2007, appellant had sued the surgical center, demanding that it implement a code of conduct applicable to operating room surgeons. The surgical center hired a psychologist to investigate and address the work environment, and the surgical center made efforts to resolve appellant's concerns. It investigated all complaints against the surgeons, and the surgeons received training on proper behavior with operating room staff. The two surgeons involved in the operating room incidents "were talked to."

After she was cleared to return to work on June 11, 2007, appellant resigned. She did not believe her employer could promise her a safe working environment, despite the steps the employer had taken.

A representative of the employer testified that the surgical center was "working collaboratively with the surgeons . . . in order to resolve any environmental issues in the [operating rooms]." It was the surgical center's intention to "do whatever it can in order to make the appropriate environment in the [operating room]." At all times, the employer was ready and willing to have appellant continue working.

Following the hearing, the appeal tribunal denied appellant's claim. The decision stated, in part, as follows:

The claimant left work voluntarily because she did not feel that the employer could insure her a safe environment and because she felt that there should be consequences for the surgeons' behavior. The evidence presented indicates that the claimant was willing and able to return to work on 6/11/07 despite her previous experience in June 2006. Her failure to do so because she anticipated a hostile work environment based on hearsay information from the operating room staff is not considered a cause sufficient enough to justify one leaving the ranks of the employed to join the ranks of the unemployed. In this case, the employer made a reasonable attempt to resolve her issues[;] however, the claimant did not make a reasonable attempt to remain employed after agreeing to do so. Therefore, the claimant left work voluntarily without good cause attributable to such work and is disqualified for benefits as of 6/10/07 in accordance with NJSA 43:21-5(a).

The Board of Review affirmed for the reasons expressed by the appeal tribunal.

An applicant for unemployment compensation has the burden to prove entitlement to those benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). In reviewing a decision of the Board of Review, our role is limited. In re Taylor, 158 N.J. 644, 656-57 (1999). We will only reverse a decision of the Board of Review if that decision was arbitrary, capricious or unreasonable, or not supported by the substantial evidence in the record as a whole. Ibid.

In examining an employee's reasons for leaving work, "the test is one of ordinary common sense and prudence." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983). As we have previously observed, "[m]ere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961). Although "[t]hreats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered have been found by this court to constitute good cause for that employee to voluntarily leave his employment," it remains the employee's responsibility "to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288.

Here, we agree with the appeal tribunal that at the time she resigned, appellant did not have a reasonable fear of imminent physical or emotional harm that would justify her voluntary termination of employment. Her physician cleared her to return to work as of June 11, 2007. She did not do so, but instead submitted a letter of resignation. By that time, the evidence shows that her employer had taken substantial steps to eliminate violence in the workplace, and had specifically assigned appellant to operating rooms where she would not come into contact with any doctors who had exhibited violent behavior in the past. Although she was unhappy with the steps taken by the employer, an objective view shows that the employer acted reasonably, and made a concerted effort to eliminate the hostile environment in the workplace. It was appellant's responsibility to give those efforts a chance, not simply resign because she did not believe they would be effective. Under those circumstances, we cannot say that the agency's decision that appellant left work without good cause attributable to her work, was arbitrary, capricious or unreasonable.

Consequently, we affirm substantially for the reasons expressed by the appeal tribunal.


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