NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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
6 A-4276-15T2
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.
7 A-4276-15T2
IN THE MATTER OF ALNESA MALLORY, CITY OF NEWARK,POLICE DEPARTMENT (NEW JERSEY CIVIL SERVICE COMMISSION)
Combined Opinion