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

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 

NOT FOR PUBLICATION WITHOUT THE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.

November 1, 2017
2 A-4276-15T2

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.