SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 4276
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IN THE MATTER OF ALNESA MALLORY, CITY OF NEWARK, POLICE DEP ARTMENT.

___________________________

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, L L C , attorneys for appellant Alnesa Mallory (Shay S . Deshpande, on the brief) . Kenyatta Stewart, Cor poration Counsel, attorney for r espondent 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 determinati on of the Civil Service Commission (Commission) upholding her ten

- day suspension for insubordination. We affirm.
T he 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 Petitioner 's supervisor on the NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 4276
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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 t hat 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 requir ing petitioner t o 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 p urse snatching call. At 8:28 a.m., petitioner claimed she notified Clark that th e call should
be routed to another d istrict. A t 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 subsequently3 A - 4276
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c alled a nother lieutenant to complain about Clark's language and behavior . Petitioner reported the incident and an investigation was opened. Clark i nvestigate d the incident as he was petitioner's supervisor and w itne ssed the incident personally. Clark also received submissions from other o fficers who observed the incident . B ased on these submissions and his own experience,
Clark recommended that petitioner be formal ly charged with insubordination. Petitioner was charged with two counts of insubordination . Petitioner disputed the insubordination charge and request ed 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 a ssignment from the computer system . The ALJ determined
t hat when Clark attempted to give petitioner an order concerning a new procedure for removal of assignments , she talked over him4 A - 4276
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and refused t o 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 n ot commit acts of insubordination or disrespect to superior officers." The Commission's identification of causes warranting employee discipline in clude insubordination for refusing to obey an order and refusing to comply with an order even if the person b elieves 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 disci pline . 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.5 A - 4276
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When reviewing agency action, the "standard for judicial review of admini strative agency action is limited . . . . " In re Proposed Quest Acad. Chart er Sch s . 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, "con sidering '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) ) . W hen reviewing sanctions imposed by an administrative agen cy, "appellate courts should consider whether6 A - 4276
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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 . P ursuant to the Commission's rules governing discipline, an employee may be subject to punishment for i nsubordination. See N .J.A.C. 4A:2
- 2.3(a)(2). T he Newark Police Department 's r ules and procedures p rovide

" [d] epartment members shall not commit acts of insubordina tion 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 ref usal 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 substant ial credible evidence in the record. The Commission adopted the ALJ's detailed fact ual findings. We further conclude that petitioner's suspension for7 A - 4276
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insubordination was not so disproportionate to the offense in this case as to shock our sense of fairnes s. Stallworth , supra , 208
N.J. at 195. Affirmed.