                     NOT FOR PUBLICATION WITHOUT THE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-2623-14T4

IN THE MATTER OF RUBY SAUNDERS.
_______________________________

           Argued December 12, 2016 – Decided            June 9, 2017

           Before Judges Nugent and Haas.

           On appeal from the Civil Service Commission,
           Department of Labor and Workforce Development,
           Docket No. 2014-1004.

           Luretha M. Stribling argued the cause for
           appellant.

           Christopher Weber, Deputy Attorney General,
           argued the cause for respondent New Jersey
           State Prison (Christopher S. Porrino, Attorney
           General, attorney; Lisa A. Puglisi, Assistant
           Attorney General, of counsel; Arielle E. Katz,
           Deputy Attorney General, on the brief).

           Christopher S. Porrino, Attorney General,
           attorney   for   respondent  Civil Service
           Commission (Valentina M. DiPippo, on the
           statement in lieu of brief).

PER CURIAM

     Appellant Ruby Saunders appeals from a July 16, 2014 Civil

Service Commission (CSC) final administrative decision removing

her from her position as a corrections officer recruit at New

Jersey State Prison.      We affirm.
     On August 28, 2013, the New Jersey Department of Corrections

(DOC), New Jersey State Prison (NJSP), served appellant with a

Preliminary Notice of Disciplinary Action (PNDA) charging her with

incompetency, inefficiency or failure to perform duties, N.J.A.C.

4A:2-2.3(a)(1); insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct

unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty,

N.J.A.C. 4A:2-2.3(a)(7); other sufficient cause, N.J.A.C. 4A:2-

2.3(a)(12); neglect of duty, loafing, idleness or willful failure

to devote attention to tasks which could result in danger to

persons or property, Human Resource Bulletin 84-17 as amended B-

2;   incompetence    or    inefficiency,   B-9;   insubordination:

intentional disobedience or refusal to accept order, assaulting

or resisting authority, and disrespect or use of insulting or

abusive language to a supervisor, C-9; conduct unbecoming an

employee, C-11; violation of administrative procedures and/or

regulations involving safety and security, D-7; and violation of

a rule, regulation, policy, procedure, order or administrative

decision, E-1.

     Within two weeks of being served with the PNDA, appellant

filed a complaint with the DOC's Equal Employment Division (EED),

alleging she had been discriminated against based on disability,

color and race.   Following its investigation of the complaint, the

EED issued a letter to appellant informing her it found no evidence

                                 2                          A-2623-14T4
to establish discrimination as a basis for             her removal from

employment.

     Meanwhile, following a departmental hearing, the DOC and NJSP

served appellant with a Final Notice of Disciplinary Action (FNDA)

dismissing    the   conduct   unbecoming    an   employee    charge     under

N.J.A.C.   4A:2-23(a)(b),     upholding    the   remaining   charges,      and

removing her from employment.

     Appellant appealed to the CSC, which transferred the matter

to the Office of Administrative Law (OAL) for a hearing.                     An

Administrative Law Judge (ALJ) conducted a hearing and issued an

initial decision upholding the charges and appellant's removal.

On July 16, 2014, the CSC issued a final decision adopting the

ALJ's findings.     This appeal followed.

     During the OAL hearing, several witnesses testified on behalf

of the DOC and NJSP.      Senior Investigator John Doyle testified

that on August 17, 2013, he was the Operations Lieutenant at NJSP.

NJSP personnel working the 10:00 p.m. to 6:00 a.m. shift found a

nine millimeter bullet in Unit C.          Finding a bullet on a unit's

floor created a heightened, very serious situation: it gave rise

to the possibility that a weapon had been brought into the prison.

For that reason, the Special Operations Group came to the unit.

     According to Investigator Doyle, once the Special Operations

Group enters a unit, they go cell to cell, strip-search the

                                    3                                 A-2623-14T4
inmates, and escort them to another unit.          After the prisoners are

removed,    a   supervising    officer   assigns   available   officers    to

search the cells.         That day, Investigator Doyle briefed all the

officers about the magnitude of the situation, explaining that a

weapon or firearm could be found.         He told the officers that due

to the seriousness of the situation, they were required to conduct

a very diligent and thorough search leaving no stone unturned.

Additionally, they were to take their time and be very sure that

there was no contraband left in any cell.

     A     short   time    after   the   briefing,    Sergeant    Zsuzsanna

Rogoshewski     approached    Investigator   Doyle.     She    informed   him

appellant had just completed a cell search.           The sergeant did not

believe appellant had thoroughly searched the cell because her

search lasted only six minutes from the time the search orders

were issued.       Investigator Doyle knew the cells being searched

were the largest in the institution.           Moreover, the particular

cells searched by appellant housed two inmates who possessed an

extensive amount of property.       When Investigator Doyle asked where

appellant was, the Sergeant replied that after she told appellant

to re-search the cell, appellant said she had to make a phone call

and walked off.

     Investigator Doyle proceeded to the cell.            Over the years,

he had seen thousands of cells before and after searches.                  He

                                     4                              A-2623-14T4
immediately noticed the clothing and other items in the cell were

folded and meticulously stored.               The clothing did not appear to

him as though it had been recently searched, refolded and replaced.

Based on his experience, Investigator Doyle knew the cell had not

been thoroughly searched.             Investigator Doyle explained that an

officer's failure to thoroughly search a cell jeopardizes not only

the safety and security of the inmates, but also the staff.

Investigator Doyle arranged to have another officer search the

cell.        The officer took approximately an hour and a half to

complete the search.

       Sergeant Rogoshewski was the area sergeant on August 17,

2013.        Her   duties   included     supervising    cell   searches.      She

explained that a thorough search consisted of "searching the cell

from top to bottom," including any bins, boxes, and anything behind

any fixtures.        Such a search also included the seams, pockets, and

collars of any clothing.             That day, the searches began at 11:20

a.m. and were completed at 1:25 p.m.

       Six minutes after Sergeant Rogoshewski assigned appellant to

search a cell, she returned and said she had completed the task.

Questioned by Sergeant Rogoshewski, appellant said she believed

she    had    done    a   thorough    search.      At   that   point,   Sergeant

Rogoshewski reported the issue to Investigator Doyle, who agreed

that    the    cell   had   not   been    thoroughly    searched.       Sergeant

                                          5                              A-2623-14T4
Rogoshewski      summoned   appellant,            returned    to   the   cell,    and

demonstrated how appellant was to conduct a "grid search" of the

cell.   Sergeant Rogoshewski specifically demonstrated how an item

of clothing was to be searched and appellant said she understood.

      After demonstrating how the cell was to be searched, Sergeant

Rogoshewski left.       A few seconds later, appellant stepped out of

the cell and told the sergeant, "I'm not searching, I'm going to

make a phone call."         Sergeant Rogoshewski responded, "[t]hat's

fine" and dismissed appellant from the search detail.                      Sergeant

Rogoshewski then contacted Sergeant Robin Washington to have her

direct appellant to prepare a report.

      Sergeant Rogoshewski denied reported accusations that she had

a personality conflict with appellant because appellant had a

pronounced    stutter.         The    sergeant       denied    knowing    appellant

stuttered.

      Sergeant    Washington         did    not    participate     in    either   the

supervision of the search or the search of any cells.                      Although

called first as a witness for NJSP, the sergeant also testified

in   response    to   direct    examination          by   appellant's     attorney.

Contrary to Sergeant Rogoshewski's testimony, Sergeant Washington

testified Rogoshewski did not ask her to direct appellant to write

a report about the incident.               Sergeant Washington also testified

she once heard Sergeant Rogoshewski remark during the movement of

                                            6                                A-2623-14T4
prisoners that appellant was "slow."         Sergeant Washington thought

the remark was inappropriate.

      Sergeant    Timothy   Morris,    a   team   leader   of   the    Special

Operations Group, overheard Sergeant Rogoshewski tell appellant

to re-search the cell.          He also heard appellant's response.

Sergeant Morris went to the cell, which did not appear to have

been searched at all.

      Appellant    presented   the    testimony   of   Sergeant   Carmen      A.

Sexton and testified on her own behalf.           Sergeant Sexton trained

appellant at the Police Academy and also had occasion to supervise

appellant at NJSP.     She testified that in April or May 2013, she

and   other    supervisors,    including    Sergeant    Rogoshewski,       were

talking.      Sergeant Rogoshewski remarked about appellant: "She's

slow, she doesn't belong here. She doesn't belong here." Sergeant

Sexton disagreed and told Rogoshewski appellant was not slow.               She

explained appellant merely had a speech impediment and could follow

directions and perform tasks correctly.

      When appellant testified, she admitted she had been trained

to search cells using the grid system.        She knew she was to search

all "fixtures, lights, walls, floors, [and] plumbing."                She also

acknowledged she was to search all bins, beds, linens, clothes,

books, shelves, cracks in walls, toilets, and sinks.              Appellant

testified she conducted an efficient, fifteen-minute cell search

                                      7                                A-2623-14T4
during which she examined the beds, clothing lines, clothing,

seven containers, and fixtures.               She explained that she searched

the cell without unfolding and refolding the clothing, and placed

each item back where she found it. She denied Sergeant Rogoshewski

demonstrated how to conduct a proper search.                Rather, the Sergeant

called her back into the cell and aggressively instructed her to

"[g]o through all this shit again."

     Appellant admitted that after Sergeant Rogoshewski left the

cell, she searched it for just one minute to see if she missed

anything.     She ended the search because she felt threatened by

Sergeant     Rogoshewski,    who        had     a    history     of   humiliating,

embarrassing    and   degrading        her.     Appellant       believed   Sergeant

Rogoshewski only ordered a re-search to attack and antagonize her.

Appellant    wanted   to   make    a    phone       call   to   "de-escalate"    the

situation.

     Sergeant Rogoshewski testified on rebuttal and denied the

remarks appellant and Sergeant Sexton had attributed to her.

     After considering the evidence presented by the parties, the

ALJ found not only that appellant did not conduct a complete and

adequate search of the cell, but also that appellant had refused

to follow a direct order to correct her deficient search with a

complete and proper search.            The ALJ found Sergeant Rogoshewski

and Sergeant Morris credible.                 The ALJ concluded appellant's

                                         8                                  A-2623-14T4
behavior    violated   the   Civil       Service    Rules   and   Departmental

Regulations relied on by NJSP in its FNDA.

     Noting      appellant   had    no       disciplinary   record,   the      ALJ

explained the concept of progressive discipline "may be set aside

when the offense under consideration is sufficiently egregious."

The ALJ found appellant's offense was particularly serious, her

"lackluster effort" contributed to a potential threat of the most

serious nature, and she "disregarded the fundamental obligation

of a correction officer . . . to comply with orders from a superior

officer."     The ALJ stated, "[s]uch misconduct, left unpunished,

weakens    the   coherence   of    the   correction    officer    corps     [and]

threatens . . . the good order and protections of the facility."

The ALJ upheld appellant's removal from employment.

     The CSC issued a final administrative determination in which

it "accepted and adopted the Findings of Fact and Conclusion as

contained in the . . . [ALJ's] initial decision."             Appellant filed

this appeal.

     We affirm the CSC's decision, substantially for the reasons

set forth in its final agency decision.             We add only the following

comments.

     Our review of a final agency decision is limited, and we "do

not ordinarily overturn such a decision 'in the absence of a

showing that it was arbitrary, capricious or unreasonable, or that

                                         9                                A-2623-14T4
it lacked fair support in the evidence.'"                In re Carter, 191 N.J.

474,   482    (2007)    (citations      omitted).        Further,   we   may     not

substitute our judgment for that of the agency's when "substantial

credible      evidence      supports     [the]      agency's     conclusion[.]"

Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

Instead, we "defer to an agency's expertise and superior knowledge

of a particular field."         Ibid.

       We    review    an   agency's     disciplinary       sanction     under     a

deferential standard and only modify a sanction "when necessary

to bring the agency's action into conformity with its delegated

authority."        In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In

re Polk, 90 N.J. 550, 578 (1982)).             We will affirm a sanction that

is not illegal or unreasonable.              Ibid. (citation omitted).

       Appellant contends the ALJ's decision to remove her from

employment     was     arbitrary,     capricious,       unreasonable,    and     not

supported     by     evidence   in    the     record.      She   maintains       she

appropriately searched the cell and was not insubordinate.                        We

disagree.

       The ALJ determined that despite the high-risk situation,

appellant failed to conduct an adequate cell search in accordance

with    her    training.        She     subsequently       disobeyed     Sergeant

Rogoshewski's command to re-search the cell properly.               Appellant's



                                        10                                A-2623-14T4
one-minute, visual scan for "anything missed" was not a search of

the type she had been trained to conduct.

      Moreover, appellant's contention Sergeant Rogoshewski ordered

an additional search to humiliate, embarrass and degrade her is

unsupported by the evidence.       As determined by the ALJ, appellant

"knowingly chose not to conduct a search consistent with demands

of that day[.]"

      We also disagree with appellant's contention the ALJ and CSC

failed to apply the concept of progressive discipline in upholding

her removal from employment.

           [J]udicial decisions have recognized that
           progressive discipline is not a necessary
           consideration when reviewing an agency head's
           choice of penalty when the misconduct is
           severe, when it is unbecoming to the
           employee's position or renders the employee
           unsuitable for continuation in the position,
           or when application of the principle would be
           contrary to the public interest.

           [Hermann, supra, 192 N.J. at 33.]

The   "level   of   seriousness"   accompanying   appellant's   offense

warranted her removal from employment at NJSP.

      We conclude the ALJ's and CSC's decisions are supported by

sufficient credible evidence on the record as a whole. Appellant's

arguments to the contrary are without sufficient merit to warrant

further discussion.     R. 2:11-3(e)(1)(D) & (E).



                                    11                          A-2623-14T4
Affirmed.




            12   A-2623-14T4
