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Teresa E. Baber v. Board of Review and

January 15, 2013

TERESA E. BABER, APPELLANT,
v.
BOARD OF REVIEW AND LES A. BURNS, M.D., P.A., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 318,339.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2012

Before Judges Hayden and Lisa.

Appellant, Teresa E. Baber, appeals from the September 6, 2011 final decision of the Board of Review (Board), which affirmed the March 29, 2011 determination by the Appeal Tribunal*fn1 that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work, and under N.J.S.A. 43:21-5(b) because she was discharged for misconduct connected with the work. Appellant argues that the record does not contain sufficient evidence to support the Board's findings, as a result of which its determination is arbitrary, capricious, and unreasonable. We reject appellant's argument and affirm.

Appellant is a nurse. She became employed by Dr. Les A. Burns in his private medical practice on December 17, 2001. She performed both administrative and medical duties. Beginning in 2009, after appellant returned to work from a medical leave for surgery, Dr. Burns began to adjust her work assignments, placing more emphasis on medical responsibilities, while assigning more administrative tasks to other employees. The working relationship between Dr. Burns and appellant, which had previously been reasonably good, began to deteriorate.

Dr. Burns often reprimanded appellant, sometimes in the presence of patients and other employees. He viewed the reprimands as justified because of what he deemed to be appellant's unprofessional manner in dealing with patients and talking loudly and shouting in the office. According to Dr. Burns, as corroborated by other office employees, appellant was argumentative and combative, and did not take criticism well. Her reactions to criticisms leveled by Dr. Burns were often disproportionate and disrespectful. Dr. Burns noticed that appellant became more and more dissatisfied and disgruntled during this time.

While employed by Dr. Burns, appellant also ran a side business of her own as a travel agent, arranging cruises. Dr. Burns was aware of this and, indeed, appellant had once booked a cruise for him. Dr. Burns allowed appellant to place her cruise literature in the office for patients to take and to talk to patients about cruise opportunities.

Beginning with an entry of April 21, 2009, appellant began keeping a log of incidents which she considered to be mistreatment of her by Dr. Burns. She made a number of entries, up to August 24, 2010. These entries contained a brief description of the circumstances of the interaction, identification of the persons present, and Dr. Burns' comments to her and her responses to him. She produced this log in the administrative proceedings as her purported documentation of a hostile work environment.

On November 18, 2010, appellant submitted a letter of resignation to Dr. Burns, effective December 2, 2010. She did not mention any of these incidents or in any way suggest that she was leaving because of a hostile work environment. Dr. Burns requested that appellant stay on a bit longer, until December 23, 2010, to give him sufficient time to find and train a replacement. Appellant agreed.

The parties present differing accounts of what happened during this transition period. Appellant claims Dr. Burns gave her permission to copy patient information so she could contact patients after she left. Dr. Burns acknowledged that he had no objection to appellant continuing to contact his patients after she left his employment, but he emphatically denied allowing her to copy office records. On the contrary, he said he expressly forbade appellant from copying any patient records and removing them from the office. He felt this would be a violation of the Health Insurance Portability and Accountability Act (HIPAA) because patient records contained names, addresses, social security numbers, and other demographic information. If appellant removed copies of these records from the office, Dr. Burns feared that his practice could be jeopardized.

Appellant does not dispute that she photocopied records of many patients. According to an audit commissioned by Dr. Burns, records of nearly fifty patients were removed. After Dr. Burns demanded the return of the documents, appellant returned some of them.

Therefore, the dispute over the copying of patient records is not whether they were copied, but whether the copying was authorized. In addition to his testimony emphatically denying authorization and asserting that he clearly forbade the copying, Dr. Burns also pointed out that appellant conducted her copying activities surreptitiously. She did so, for example, when he was seeing a patient and other office staff were out to lunch. This conduct, of course, militates against authorized activity. Further, another office employee, Billi Jo Till, testified in this proceeding that she heard Dr. Burns instruct appellant that she was not allowed to copy patient records.

On December 13, 2010, because of the dispute regarding the copying of patient records, Dr. Burns fired ...


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