IN THE MATTER OF ALNESA MALLORY, CITY OF NEWARK,POLICE DEPARTMENT (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4276-15T2

IN THE MATTER OF ALNESA
MALLORY, CITY OF NEWARK,
POLICE DEPARTMENT.
___________________________

Submitted October 11, 2017 – Decided November 1, 2017

Before Judges Gilson and Mayer.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2014-1015.

Fusco & Macaluso Partners, LLC, attorneys
for appellant Alnesa Mallory (Shay S.
Deshpande, on the brief).

Kenyatta Stewart, Corporation Counsel,
attorney for respondent City of Newark
(Corinne E. Rivers, Assistant Corporation
Counsel, on the brief).

PER CURIAM

Petitioner Alnesa Mallory appeals from a May 31, 2016 final

agency determination of the Civil Service Commission (Commission)

upholding her ten-day suspension for insubordination. We affirm.

The insubordination charge against petitioner stemmed from

an incident on June 15, 2013, while she was working as a dispatcher

for the Newark Police Department. Petitioner's supervisor on the
day of the incident was Lieutenant Robert Clark. According to

Clark, petitioner asked him to remove an assignment from the

dispatch system so it could be routed to another district. Only

a supervisor can remove an assignment from the computer system.

Clark agreed to remove the assignment. When Clark returned to his

computer, he saw that petitioner had made a computer notation

remarking that she asked Clark to remove the assignment an hour

earlier. Upon seeing petitioner's computer entry, Clark sought

to establish a procedure requiring petitioner to receive a response

and an acknowledgement that he heard her request before she made

a written comment regarding their communication. When Clark

attempted to discuss this directive with petitioner, he claims she

responded that she would continue using her method. Clark stated

that petitioner talked over him and refused to comply with his

order.

According to petitioner, the day of the incident was hectic.

At 7:16 a.m., petitioner received a purse snatching call. At 8:28

a.m., petitioner claimed she notified Clark that the call should

be routed to another district. At 9:21 a.m., petitioner, upon

seeing that the call had not been routed, again notified Clark and

typed a comment into the computer system to that effect.

Petitioner claimed Clark then began cursing, yelling, and accusing

her of attempting to make him look bad. Petitioner subsequently

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called another lieutenant to complain about Clark's language and

behavior.

Petitioner reported the incident and an investigation was

opened. Clark investigated the incident as he was petitioner's

supervisor and witnessed the incident personally. Clark also

received submissions from other officers who observed the

incident. Based on these submissions and his own experience,

Clark recommended that petitioner be formally charged with

insubordination. Petitioner was charged with two counts of

insubordination.

Petitioner disputed the insubordination charge and requested

a departmental hearing, which upheld the charge and suspended

petitioner for ten days. Petitioner appealed her suspension to

the Commission, which referred the matter to the Office of

Administrative Law for a hearing. An Administrative Law Judge

(ALJ) heard testimony from petitioner and Clark during a hearing

held on October 5, 2015.

The ALJ found that there was an incident on June 15, 2013.

The ALJ concluded that petitioner advised Clark twice about removal

of an assignment from the computer system. The ALJ determined

that when Clark attempted to give petitioner an order concerning

a new procedure for removal of assignments, she talked over him

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and refused to obey the order. Accordingly, the ALJ found that

petitioner's conduct was insubordinate.

In making her legal finding, the ALJ relied on the Newark

Police Department rules and procedures and the Commission's

identification of actions warranting employee discipline. The

Newark Police Department's rules and procedures state that

"members shall not commit acts of insubordination or disrespect

to superior officers." The Commission's identification of causes

warranting employee discipline include insubordination for

refusing to obey an order and refusing to comply with an order

even if the person believes that the order is improper or contrary

to established rules and regulations.

The ALJ also considered petitioner's prior disciplinary

record and found that a ten-day suspension was appropriate and

consistent with the imposition of progressive discipline.

The Commission adopted the ALJ's findings and conclusions and

affirmed petitioner's suspension for insubordination and the

penalty imposed.

On appeal, petitioner argues that the ALJ's findings were not

supported by the evidence. Petitioner also contends the ten-day

suspension without pay was arbitrary, capricious, and

disproportionate to the charge.

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 When reviewing agency action, the "standard for judicial

review of administrative agency action is limited . . . ." In re

Proposed Quest Acad. Charter Schs. of Montclair Founders Grp., 216

N.J. 370, 385 (2013). Agency decisions are presumptively

reasonable. E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp.,

405 N.J. Super. 132, 143 (App. Div.), certif. denied, 199 N.J. 540

(2009) (citing City of Newark v. Natural Res. Council, 82 N.J.

530, 539, cert. denied, 499 U.S. 983, 101 S. Ct. 400, 66 L. Ed.

2d 245 (1980)). We give deference to an agency's determination

unless the decision is arbitrary, capricious, or is unsupported

by substantial credible evidence in the record. In re Herrmann,

192 N.J. 19, 27-28 (2007); Campbell v. Dep't. of Civil Serv., 39

N.J. 556, 562 (1963). We defer to an agency's findings if they

could reasonably have been reached on sufficient credible evidence

in the record, "considering 'the proofs as a whole,' with due

regard to the opportunity of the one who heard the witnesses to

judge . . . their credibility." In re Taylor, 158 N.J. 644, 656

(1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

This deferential standard applies to imposition of

disciplinary sanctions as well. Herrmann, supra, 192 N.J. at 28

(citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427,

431-32 (1975)). When reviewing sanctions imposed by an

administrative agency, "appellate courts should consider whether

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the 'punishment is so disproportionate to the offense, in the

light of all of the circumstances, as to be shocking to one's

sense of fairness.'" In re Stallworth, 208 N.J. 182, 195 (2011)

(citing In re Carter, 191 N.J. 474, 484 (2007)).

Here, the ALJ relied on the definition of insubordination

provided in the Newark Police Department's rules and procedures

and the Commission's identification of insubordination as

warranting employee discipline. Pursuant to the Commission's

rules governing discipline, an employee may be subject to

punishment for insubordination. See N.J.A.C. 4A:2-2.3(a)(2). The

Newark Police Department's rules and procedures provide

"[d]epartment members shall not commit acts of insubordination or

disrespect to any superior officer." In defining insubordination,

we have "observed that it is ordinarily defined as a failure to

obey a lawful order." In re Williams, 443 N.J. Super. 532, 548

n.4 (App. Div. 2016). We agree that petitioner's refusal to obey

Clark's order constituted insubordination consistent with the

definition of that term as established by the Newark Police

Department and the Commission.

Having reviewed the record, we conclude the Commission's

decision was based upon substantial credible evidence in the

record. The Commission adopted the ALJ's detailed factual

findings. We further conclude that petitioner's suspension for

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insubordination was not so disproportionate to the offense in this

case as to shock our sense of fairness. Stallworth, supra, 208

N.J. at 195.

Affirmed.

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