BASHEEMA T. WASHINGTON v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3113-14T2

BASHEEMA T. WASHINGTON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and HEBREW OLD AGE CENTER

t/a SEASHORE GARDENS LIVING

CENTER,

Respondents.

___________________________________

October 24, 2016

Submitted August 16, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from the Board of Review, Department of Labor, Docket No. 015705.

Yankwitt LLP, attorneys for appellant (George C. Godfrey, III, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Board of Review, Department of Labor (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

Respondent Hebrew Old Age Center has not filed a brief.

PER CURIAM

Appellant Basheema Wilson appeals from the final decision of the Board of Review, which affirmed the decision of an Appeal Tribunal finding her ineligible to receive unemployment compensation benefits because she was discharged for simple misconduct connected to the work. We affirm.

Appellant worked as a Certified Nursing Assistant for Hebrew Old Age Center t/a Seashore Gardens Living Center (the Employer), from January 11, 2013 through April 1, 2014. She applied for unemployment benefits and was found by a Deputy1 to be eligible for benefits, without disqualification, from April 6, 2014.

The Employer appealed the Deputy's determination. In sworn testimony before the Appeal Tribunal, the Employer's Human Resource Coordinator (HRC) testified appellant's employment was terminated after "[s]he violated a resident's rights due to a breach of confidentiality which was evidenced by a journal she had resident's [sic] names on it and she took it off the premises and she also told staff that she recorded a resident on her phone." The HRC also explained the training employees received concerning patient confidentiality. She explained that "new hires" are given a booklet on Residents' Rights and every year they have in-service online training concerning residents' rights. The training emphasizes the need to respect patients' privacy and preserve their dignity.

According to the HRC, the Employer also provided another brochure and in-service training concerning the Health Insurance Portability and Accountability Act, commonly known as HIPAA, which required patients' identities and health information be kept confidential. In-service training took place each month and employees had to complete twelve hours of continuing education yearly.

Lastly, the HRC testified the Employer's policy was termination of employment for an employee who breached confidentiality requirements. Appellant had received no prior written or verbal warnings about violating residents' rights or breaching patient confidentiality; her only previous disciplinary action was for not completing in-service training in a timely manner.

The Employer introduced a log evidencing appellant's completion of Residents' Rights and HIPAA in-service training. The Employer also introduced the testimony of an LPN to whom appellant admitted recording on her phone her conversations with a patient. The LPN informed appellant that recording conversations with patients violated HIPAA.

Appellant denied telling the LPN she had used her phone to record the patient; she merely said she recorded the patient, without specifying the manner. She explained to the Appeals Examiner she was recording the patient's statements in hand written notes. She made the notes because the patient she recorded wanted her to perform duties she was not supposed to perform. Appellant was also concerned because the patient was known for getting people fired, a fact appellant reported to her supervisor. Appellant requested that she be reassigned from caring for the patient. Her request was denied.

Appellant admitted using the patient's first name in her notes in a journal that she kept at home but denied using any other identifying information. She also admitted receiving the Employer's handbook and policies and undergoing training on the HIPAA policy.

Based on the foregoing testimony and documentary evidence, the Appeals Examiner determined appellant was disqualified for benefits under N.J.S.A. 43:21-5, which provides in pertinent part: "An individual shall be disqualified for benefits: . . . . (b) [f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow the week, as determined in each case." The Appeals Examiner explained in a written decision mailed on October 23, 2014

In this matter, although the claimant contends that she did not record the resident electronically but in a journal, this does not negate the fact that the claimant kept . . . a journal with the resident's first name off the premises and without the employer's knowledge which is a violation of the company and HIPAA policy. The claimant's contention that there was no justice for her when she made complaints against the resident to the employer that the resident is known for getting people fired and the employer did not comply with her request to not work with this resident is rejected as irrelevant. Here, the resident did not make a complaint against the claimant and the employer had no issue with claimant's work with the resident. Hence, the claimant's action in recording her interactions with the resident and recording the resident's actions toward her in a journal which was kept off the employer's premise shows a disregard of the standards of behavior which the employer has the right to expect of its employees and a violation of a known policy. As the claimant had no prior warnings the discharge is found to be for simple misconduct connected with the work. Hence, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 03/30/14 through 05/24/14, as the discharge was for simple misconduct connected with the work.

The Appeals Examiner remanded the matter of appellant's potential liability for refund of benefits received to the Director.

Appellant timely appealed the Appeal Tribunal's decision to the Board of Review. The Board affirmed the Appeal Tribunal's decision, stating

The Findings of Fact and Opinion as developed by the Appeal Tribunal and the allegations of the appellant have been carefully examined.

Since the appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing.

On the basis of the record below, we agree with the decision reached.

Appellant appeals from the Board's decision. In her brief, she argues she did not violate HIPAA by revealing a patient's health information. She maintains that using first names of patients "does not reasonably identify the patient and no privacy was compromised."

Our scope of review of the Board's final decision is limited. See In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We "must . . . give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citation omitted). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982) (citations omitted).

When appellant engaged in the conduct at issue, the relevant statute, as previously noted, disqualified a person for benefits "[f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow the week, as determined in each case." N.J.S.A. 43:21-5(b). The term "misconduct" was defined in N.J.A.C. 12:17-10.2

For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standard behavior which the employer has the right to expect of an employee.

[N.J.A.C. 12:17-10.2(a).]2

The regulation defining misconduct "prescribes a two-prong standard to establish misconduct. First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver v. Bd. of Review, 430 N.J. Super. 44, 53 (App. Div. 2013). "[S]imple misconduct . . . could result from a single . . . violation committed intentionally and with malice." Id. at 56. The terms "'intentional' and 'malicious' as used in the regulation . . . include deliberate disregard of the employer's rules or policies, or deliberate disregard of the standards of behavior that the employer has the right to expect of an employee." Ibid.

Here, the Appeal Tribunal's and the Board's determination that appellant disregarded both her employer's policies and the standards of behavior which the employer had a right to expect of its employees, particularly in view of appellant's acknowledgment of her receipt of those policies and in-service training, are amply supported by sufficient credible evidence in the record as a whole, and warrant no further discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 "'Deputy' means a representative of the Division within the New Jersey Department of Labor and Workforce Development responsible for the administration of the Unemployment Insurance Benefit Payment Program." N.J.A.C. 12:17-2.1.

2 N.J.A.C. 12:17-10.2 was recodified from N.J.A.C. 12:17-10.3 and amended by R. 2015d.079 effective May 18, 2015. This amendment repealed the definition of "misconduct," which was still effective when the Board of Review affirmed the decision of the Appeal Tribunal in this matter.