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Teresa E. Baber v. Board of Review and

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appellant, effective immediately.

On December 12, 2010, appellant had filed a claim for unemployment benefits. However, when she learned that Dr. Burns would contest her entitlement to benefits, she sent a letter to him seeking to rescind her resignation.*fn2 Dr. Burns refused, and appellant continued to pursue unemployment benefits.

On January 4, 2011, the Deputy Director of the Division of Unemployment Insurance issued two disqualification letters. The first disqualified appellant on the ground that she left work voluntarily without good cause attributable to the work, noting that appellant had advised the Deputy that she voluntarily quit, having given two-weeks written notice, with the reason for leaving being to retire. The second notice determined that appellant committed misconduct connected with the work because her actions constituted a willful and deliberate disregard of the standards of behavior her employer had a right to expect after being advised by her employer of the employer's policy.

Appellant requested an administrative appeal. A hearing was conducted on February 28 and March 3, 2011. Appellant was represented by counsel. In addition to appellant, Dr. Burns testified, as did Till and another office employee, Barbara Bais.

Having considered all of the evidence, including the testimony of the witnesses and appellant's log, the appeals examiner found that appellant did not resign because of harassment or verbal abuse from Dr. Burns, but simply retired, having given two-weeks notice of resignation. The appeals examiner found that Dr. Burns did not harass or belittle appellant and was not verbally abusive to her, although he found it difficult at times to talk to her because she was argumentative. Further, the appeals examiner found that during the transition period appellant was copying and removing confidential patient demographic materials, after Dr. Burns had specifically warned her not to do so.

In finding that appellant voluntarily left work without good cause attributable to the work, the appeals examiner determined that the log compiled by appellant did not constitute verification of unfair treatment by Dr. Burns, noting that appellant did not demonstrate an effort to resolve these incidents by bringing them to Dr. Burns' attention. Further, the appeals examiner found it significant that appellant would have remained in Dr. Burns' employ if he had allowed her to rescind her resignation. This further supported the finding that appellant did not quit because of intolerable working conditions. With respect to the misconduct ground for denial of benefits, the appeals examiner found credible and persuasive Dr. Burns' assertion that he explicitly instructed appellant she was not permitted to copy and remove patient records and appellant did so, surreptitiously and in defiance of those instructions. Accordingly, the appeals examiner found appellant disqualified for benefits on both grounds.

Appellant sought further administrative review before the Board. In its final decision of September 6, 2011, the Board observed that appellant was given a full and impartial hearing and, on the basis of the administrative record that had been developed, it agreed with the decision reached by the Appeal Tribunal, which it affirmed. This appeal followed.

The scope of our review of the final decision of an administrative agency is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). To a large extent, the final decision in this case rested upon credibility determinations. Such determinations are best made by the factfinder who heard the witnesses and was in the best position to assess their credibility. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). A reviewing court will defer to such credibility determinations as long as they are supported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 656 (1999). The record in this case supports the credibility determinations made by the agency, and we have no occasion to interfere with them.

To the extent that the Board's decision rested upon legal analysis, we also find no error. On the first ground, voluntarily leaving employment without good cause attributable to the work, N.J.S.A. 43:21-5(a), the phrase "good cause" means "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady, supra, 152 N.J. at 214 (citations omitted). The test of whether an employee's decision to leave work constitutes good cause is a test of ordinary common sense and prudence; the cause "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling, and whimsical ones." Ibid. (citations omitted). The employee must "do whatever is necessary and reasonable in order to remain employed." Ibid. (citations omitted). "Mere 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." Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 587 (App. Div. 1974) (citations omitted).

We recognize that intentional harassment of an employee can rise to the level of an abnormal working condition and constitute good cause for voluntarily leaving the work. Ibid.; see, e.g., Doering v. Bd. of Review, 203 N.J. Super. 241 (App. Div. 1985) (finding claimant who was subjected to sexual harassment and racially prejudicial comments established good cause and entitlement to benefits). However, we are satisfied that the record supports the Board's conclusion that the conduct here was not of that character or severity and did not create such intolerable or abnormal working conditions that justified appellant in quitting her job. See Associated Util. Servs., supra, 131 N.J. Super. at 589. This finding is bolstered by the undisputed fact that appellant sought to rescind her resignation after learning that her employer was going to contest her entitlement to unemployment benefits. Thus, she was willing to "join[] the ranks of the unemployed" only to the extent that she was guaranteed to receive unemployment benefits. Brady, supra, 152 N.J. at 214.

With respect to the work-related misconduct ground, N.J.S.A. 43:21-5(b), appellant's conduct falls squarely within the definition of "misconduct," which refers to a wanton or willful act made in disregard of the interests of the employer, the rules imposed by the employer, or the standards of behavior which the employer has a right to expect. Beaunit Mills, Inc., v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div 1956), certif. denied, 23 N.J. 579 (1957); see also N.J.A.C. 12:17-10.2(a) (defining "misconduct").

Affirmed.


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