Opinion

Bruce Fleming v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jan 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.9%

holding that self-contradiction and imprecision detract from the weight to be accorded the evidence upon which an administrative board bases its decision

How later courts described this case

holding that self-contradiction and imprecision detract from the weight to be accorded the evidence upon which an administrative board bases its decision
proof of one or more specifications is enough to sustain charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRUCE FLEMING, DOCKET NUMBER

Appellant, PH-0752-18-0457-I-1

DEPARTMENT OF THE NAVY, DATE: January 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jason H. Ehrenberg , Esquire, Washington, D.C., for the appellant.

Alison Gray , Esquire, Washington, D.C., for the agency.

Terrence P. Cook , Esquire, Annapolis, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed the appellant’s removal. The appellant has filed a motion to dismiss the

agency’s petition for failure to provide interim relief. For the reasons discussed

below, we DENY the appellant’s motion to dismiss, GRANT the agency’s

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

petition for review, and REVERSE the initial decision. The agency’s action is

SUSTAINED.

BACKGROUND

The appellant is a tenured Professor of English at the U.S. Naval Academy

in Annapolis, Maryland. At issue are certain aspects of the appellant’s conduct in

teaching first-year Rhetoric & Introduction to Literature, HE 111, during the fall

semester of the 2017/2018 academic year. In January 2018, five different

students filed complaints with the Vice Academic Dean alleging that the appellant

had made various offensive comments, discussed inappropriate matters during

class, and engaged in other unprofessional conduct. Initial Appeal File (IAF),

Tab 7 at 115-34. The Vice Academic Dean directed the Director of the Division

of Humanities and Social Sciences to supervise a fact-finding inquiry. Id. at 114.

The Division Director assembled a panel of three senior faculty members,

who interviewed the students from the appellant’s fall classes, as well as two

other students whose names had come up regarding one matter. Id. at 135-89;

IAF, Tab 8 at 4-119. The appellant was invited to address the panel, but he

declined to do so. IAF, Tab 8 at 120-21; IAF, Tab 28 at 91. He did reply by

email, IAF, Tab 8 at 123, and he also sent an email message to the entire faculty

in which he generally complained about the unfairness of the process, id. at 130.

Thereafter, the panel issued a report finding that a number of the matters as

described in the complaints had occurred and qualified as unprofessional

behavior. IAF, Tab 7 at 97-113.

On June 26, 2018, the Division Director proposed the appellant’s removal

on a charge of Conduct Unbecoming a Federal Employee with seven

specifications. The agency alleged that the appellant: (1) referred to students as

“right-wing extremists”; (2) made comments about and discussed anal sex, oral

sex, and transgender surgery; (3) emailed partially clothed photos of himself to

students after having been counseled that doing so was inappropriate and agreeing

to refrain from doing so; (4) touched students without their approval; (5) referred

to his own sexual experiences; (6) repeatedly mispronounced an Asian-American

student’s name despite being corrected several times; and (7) made demeaning,

sexually related comments about a child and her mother because of how they

were dressed. 2 Id. at 79. After the appellant responded, the Academic Dean and

Provost issued a decision sustaining all seven specifications and removing the

appellant effective August 17, 2018. Id. at 18-21, 33.

The appellant filed a Board appeal contesting the merits of the removal and

raising several affirmative defenses, including retaliation for whistleblowing,

violation of his First Amendment rights, and harmful procedural error. IAF,

Tabs 1, 30. After a hearing, the administrative judge issued an initial decision

not sustaining any of the seven specifications and reversing the removal on that

basis. IAF, Tab 33, Initial Decision (ID). The administrative judge considered

the appellant’s affirmative defenses but found that he failed to prove them. ID

at 16-17. He ordered the agency to provide interim relief if either party filed a

petition for review. ID at 19.

The agency has filed a petition for review, Petition for Review (PFR) File,

Tab 7; the appellant has filed a response, PFR File, Tab 13; and the agency has

filed a reply, PFR File, Tab 16. The appellant has also moved to dismiss the

agency’s petition for failure to comply with the interim relief order, PFR File,

Tab 11, and the agency has responded in opposition to that motion, PFR File,

Tab 12.

ANALYSIS

The agency is in compliance with the administrative judge’s interim relief order.

If the appellant is the prevailing party in the initial decision and the

administrative judge orders interim relief, a petition for review filed by the

In proposing the appellant’s removal, the agency considered that he had previously

been issued a Letter of Reprimand for disclosing a student’s personally identifiable

information. IAF, Tab 7 at 81. The Reprimand was issued on May 11, 2018. Id. at 94.

agency must be accompanied by a certification that the agency has complied with

the interim relief order, either by providing the interim relief ordered, or by

making a determination that returning the appellant to the place of employment

would cause undue disruption to the work environment. Ayers v. Department of

the Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.

§ 7701(b)(2)(A)(ii). If an agency makes a determination that an employee will

pose an undue disruption, it must nonetheless return the employee to a pay status

pending the outcome of its petition for review, and provide “pay, compensation,

and all other benefits as terms and conditions of employment” pending the

outcome of the petition for review. 5 U.S.C. § 7701(b)(2)(B). The Board’s

review of interim relief is limited to determining whether the agency actually

made an undue disruption determination and whether the employee has received

appropriate pay and benefits. The Board does not have the authority to review

the merits of an undue disruption determination. King v. Jerome, 42 F.3d 1371,

1375-76 (Fed Cir 1994).

In this case, the agency’s petition for review was accompanied by a

certification that it has complied with the administrative judge’s interim relief

order by reinstating the appellant to his position, effective the date of the initial

decision, and a Standard Form 50 (SF-50), Notification of Personnel Action,

reflecting the interim appointment. PFR File, Tab 7 at 61, 63. The certification

states, however, that the appellant has not been returned to the classroom. Id.

at 61. In support of the certification, the agency has submitted a declaration by

the Academic Dean and Provost, stating that based on the seriousness of the

charged misconduct, he determined that the appellant’s presence in the classroom

and his engaging with midshipmen in any advisory role would be an undue

disruption to the workplace. Id. at 65. He emphasized that his determination was

guided by the Naval Academy’s responsibility to provide a positive and

supportive classroom and advisory environment which respects the dignity of the

individual, promotes the education and professional development of future Navy

and Marine Corps leaders, and ensures the wellbeing of the midshipmen. Id.

at 66. The agency has also submitted a copy of the Academic Dean and Provost’s

August 7, 2019 letter to the appellant explaining that, for the reasons set forth

above, in lieu of teaching and advising midshipmen, his assignments during the

pendency of the petition will include scholarly research and writing and service to

the school. Id. at 67.

In his motion to dismiss, the appellant argues that the agency has failed to

provide the necessary interim relief because, by not allowing him to teach, it has

denied him the possibility of receiving student and peer evaluations, which are a

significant component of yearly considerations in the merit pay increases that are

a condition of his employment. PFR File, Tab 11. The appellant likens merit pay

increases to overtime which is required as part of interim relief when the

employee proves that he is entitled to it as a condition of employment. Id. at 7.

In its response to the appellant’s motion, the agency argues that the three

performance elements for Academy faculty that form the basis for merit increases

are teaching, scholarship, and service, and that, when a faculty member does not

perform tasks in one of the elements during the rating period, the member is still

eligible for a merit increase based on the element(s) in which he or she has

performed tasks. 3 PFR File, Tab 12 at 6-7. Thus, the agency argues that, when

the appellant is eligible for a merit increase, it will be based on his performance

in the elements of scholarship and performance. Id. at 7. In support of its

position, the agency has submitted a declaration under penalty of perjury by the

Vice Academic Dean, who oversees the Academy’s performance plan program.

Id. at 16. The agency also disputes the appellant’s argument that merit increases

should be considered like overtime. Id. at 11-12.

We find that the agency has met its initial burden of demonstrating that it is

in compliance with the administrative judge’s interim relief order. Specifically,

As an example, the agency references a professor who, because of absence due to

maternity leave, is not in the classroom for a portion of time during the rating period

and is therefore not rated on the teaching element. PFR File, Tab 12 at 7, 19.

the agency has: (1) certified its compliance; (2) submitted an SF-50 showing that

the appellant has been given an interim appointment to his Professor position at

his previous adjusted basic pay, effective the date of the initial decision; (3) made

a determination that returning him to the classroom would pose an undue

disruption; and (4) so advised the appellant.

Therefore, the only remaining issue is whether the appellant has been

denied pay, compensation, or other benefits as terms and conditions of

employment, during the pendency of the petition for review. 5 U.S.C.

§ 7701(b)(2)(B). We find that he has not. The evidence submitted by the agency

shows that merit increases for faculty are not automatic, PFR File, Tab 12 at 18,

21, and not a condition of employment. 4 In any event, the agency has shown that

the appellant’s absence from the classroom will not automatically preclude him

from receiving merit increases during subsequent academic years because his

eligibility will be based on performance in the remaining two elements. Id. at 19.

For these reasons, the appellant’s motion to dismiss is denied.

Conduct Unbecoming.

The administrative judge correctly found that a charge of conduct

unbecoming has no specific elements and that, in analyzing such a charge, the

Board considers whether the conduct was improper, unsuitable, or detracting from

one’s character or reputation. ID at 5; see Social Security Administration v.

Long, 113 M.S.P.R. 190, ¶ 42 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). The

agency must prove its charge by preponderant evidence, which is the degree of

relevant evidence that a reasonable person, considering the record as a whole,

The appellant’s likening of his situation to overtime is not persuasive. Generally,

overtime pay is compensation that is not required to be paid under an interim relief

order. McLaughlin v. U.S. Postal Service, 55 M.S.P.R. 192, 200 (1992), The only

exception is in those instances in which an employee proves that he is entitled to

overtime as a term or condition of employment by virtue of law, rule, regulation,

collective bargaining agreement, or binding agency policy. Id. The appellant has made

no such showing regarding merit increases.

would accept as sufficient to find that a contested fact is more likely to be true

than untrue. 5 C.F.R. §§ 1201.4(q), 1201.56(b)(1)(ii).

Specification (1) is sustained.

In this specification, the agency alleged that the appellant referred to two

students as “right-wing extremists” or words to that effect. IAF, Tab 7 at 79. In

an email dated September 26, 2017, he referred to the two as “my right-wing

extremists,” and then critiqued what he perceived as their unsupported positions

on issues about which they had written (anti-gun control and anti-taxes) in

connection with an assignment. IAF, Tab 8 at 135. In his initial decision, the

administrative judge noted that, in the email, the appellant stated that he would

have sent the same email to “left-wing extremists,” and that “this is not a left-

right thing. It’s a justify that thing.” 5 ID at 11; IAF, Tab 8 at 135. Finding that

the email was not “politically discriminatory,” the appellant’s real message to the

students was that they must provide supporting arguments for positions they take,

and that is a completely appropriate criticism for a student paper, the

administrative judge concluded that the specification does not describe

misconduct. ID at 11-12.

On review, the agency argues that the email was unprofessional because it

detracted from the appellant’s role as a supervisor, and that, in sending the email,

he abdicated his responsibility to be a role model for the students and to show

them dignity and respect. PFR File, Tab 7 at 20-21. The agency asserts that it

charged the appellant with conduct unbecoming, not political discrimination. Id.

at 19-20.

That the appellant sent this email is not in dispute. What is in dispute is

whether the email constitutes actionable misconduct. We find that it does,

particularly in the setting of the U.S. Naval Academy. The mission of the

Academy is to develop midshipmen morally, mentally, and physically, and it is

The investigatory panel did not find any negative outcomes for any students based on

their political beliefs. IAF, Tab 7 at 99.

expected of all members, military or civilian, that they be examples of the

principles the Academy is trying to teach—honor, courage, and commitment.

Hearing Transcript (HT) at 11 (testimony of the Commandant of Midshipmen).

Midshipmen are supposed to be taught, by word and example, that treating others

with dignity and respect is a core tenet of the military professional. HT at 9-10

(testimony of the Commandant of Midshipmen). Therefore, certain types of

conversations, which between peers might be considered “joking around,” are not

acceptable in the very different context of a senior-subordinate relationship. HT

at 37-39 (testimony of the Commandant of Midshipmen). The testimony of the

Commandant of Midshipmen was echoed by other witnesses, who likewise

emphasized the values of dignity and respect, the role of a service academy to

instill these values into future officers, and the responsibility of the faculty to

exemplify them. HT at 41-42, 45-46, 68, 70 (testimony of a Professor of

Mechanical Engineering), 166-67, 174-75 (testimony of the Academic Dean and

Provost), 301 (testimony of a Professor of English). Naval Academy instructors

have the right to academic freedom within the classroom, but there is a difference

between proper pedagogical activities and behavior that is unprofessional or

pedagogically inappropriate, and instructors are expected to treat their students

with dignity and respect. IAF, Tab 8 at 149-50, Academic Dean and Provost

Instruction 1531.63C (Apr. 1, 2016).

We agree with the witnesses who testified that, by labeling two of his

students “right-wing extremists,” the appellant failed in his duty to treat them

with dignity and respect. HT at 16 (testimony of the Commandant of

Midshipmen), 308 (testimony of a Professor of English). This specification is

sustained. See Dolezal v. Department of the Army, 58 M.S.P.R. 64, 66-67 (1993)

(upholding a conduct unbecoming charge based on disparaging and demeaning

comments the appellant made in an email about a subordinate).

Specifications (2) and (5) are sustained. 6

In specification (2), the agency charged that, during class, the appellant

made comments regarding oral sex, anal sex, and transgender surgery, and in

specification (5), that he made comments referring to his own sexual experiences.

IAF, Tab 7 at 79. The appellant did not deny discussing these matters in class,

but he disagreed that the discussions were inappropriate. Id. at 125, 133.

The administrative judge agreed with the appellant. He found that the

deciding official failed to consider whether the academic context warranted the

discussion of sexual topics, particularly in light of the appellant’s academic

writing on transgender issues. He further found that there did not appear to be a

rule or policy against discussing such topics or the appellant’s own sexual

experiences, and that the appellant was not on notice that such discussions were

forbidden or greatly restricted. Therefore, the administrative judge found that the

allegations in specifications (2) and (5) did not constitute actionable misconduct,

and for that reason, he did not sustain them. ID at 12-13.

On review, the agency argues that conduct unbecoming does not

necessarily require violation of a specific rule, and that there is sufficient

evidence to show that many of the appellant’s remarks were off-topic or

otherwise inappropriate. PFR File, Tab 7 at 22, 26-27, 42-44. We agree. There

are certain academic contexts in which discussion and even explicit discussion of

sexual material may be proper. However, the unrebutted hearing testimony shows

that the appellant frequently perseverated on these topics even when they were

completely unrelated to the course material. 7 HT at 103 (testimony of

Midshipman M.D.), 162-63 (testimony of Midshipman B.G.). This testimony is

consistent with the content of the students’ written complaints and the greater

We agree with the administrative judge that it is best to address these two

specifications together. ID at 12-13.

Regarding specification (5) in particular, it is difficult to imagine a situation in which

it would be appropriate for a professor to share with the class details of his own

personal sexual experiences.

part of student responses to the panel inquiry. IAF, Tab 7 at 117-21, 125-27, 129,

131-33, Tab 8 at 4-119. 8 Nor does the appellant suggest that his discussion of

these matters was confined to situations in which they may have been implicated

by course materials. IAF, Tab 8 at 125-26; IAF, Tab 7 at 33-34. Furthermore,

even to the extent that these discussions may have been related to the course

material, and allowing that it is normal for college classroom discussions to stray

from the material sometimes, we still find that the nature and extent of the

appellant’s remarks went beyond what was appropriate. 9

Specification (3) is sustained.

In specification (3), the agency charged that the appellant emailed partially

clothed pictures of himself 10 to students, after having been counseled that doing

so was inappropriate and agreeing to not do so in the future. IAF, Tab 7 at 79.

This conduct was mentioned in two of the student complaints, id. at 121, 132, as

well as in a number of interview responses, e.g., IAF, Tab 8 at 61, 66, 88, 98,

104, 114, 116. In his email to the panel, the appellant denied this specification,

admitting that he had only sent such a photo to a student 2 years ago, not during

the timeframe at issue, and he defended that earlier action as not inappropriate,

suggesting that it related to course material. Id. at 125-26.

In addressing this specification, the administrative judge found that there

was no dispute that the appellant was counseled for sending partially clothed

photos of himself to students in 2015, IAF, Tab 8 at 158-59, and that he again

Some of the interviewees reported that the appellant discussed condom use,

transgender surgery, and sexuality, yet also reported that there was no “sexually

suggestive language” used.

Even if we did not sustain specification 2, we find that the charge would still be

sustained based upon the remaining specifications. Burroughs v. Department of the

Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (proof of one or more specifications is

enough to sustain charge); Avant v. Department of the Air Force, 71 M.S.P.R. 192, 198

(1996) (explaining that if a single charge has multiple specifications, an agency need

only prove one specification to sustain the charge).

Most of the photos were of the appellant shirtless and flexing. IAF, Tab 8 at 136,

142-45.

engaged in that behavior in 2017, id. at 136, Tab 29 at 77-78. ID at 13.

Nonetheless, the administrative judge found that, other than one midshipman,

M.D., no one who received the photos appeared particularly offended by them,

and that Midshipman M.D.’s claim that he was offended at receiving the photo

was “hard to believe.” ID at 13-14. Concluding that there was no misconduct,

the administrative judge did not sustain this specification. ID at 14. The agency

contests this analysis on review. PFR File, Tab 7 at 32.

We find that, regardless of whether the appellant believed that sending

midshipmen shirtless photos of himself was appropriate, and regardless of

whether any recipients of those photos were actually offended, his actions still

amounted to conduct unbecoming. The record shows that, in the fall of 2015, the

agency gave the appellant a written and verbal counseling about this very same

behavior, notified him that it was inappropriate, required him to retake an

anti-harassment training course, and warned him against engaging in such

behavior in the future. IAF, Tab 8 at 159. The appellant acknowledged, at that

time, that sending such photos of himself to students could result in allegations of

impropriety, and he agreed to refrain from doing so in the future. Id. Yet 2 years

later, the appellant disregarded the agency’s warning and resumed emailing

midshipmen shirtless pictures of himself. IAF, Tab 7 at 121, 132, Tab 8

at 142-45; HT at 55-56.(testimony of Professor K.L.), (testimony of Midshipman

M.D.). That the appellant claims a pedagogical purpose for this is immaterial; he

acted contrary to his supervisors’ clearly stated expectations, and on that basis, he

committed conduct unbecoming.

Specification (4) is sustained.

In specification (4), the agency alleged that the appellant touched students

without their approval. IAF, Tab 7 at 79. The appellant touching students on

their shoulders, head, and neck in an unwanted, unnecessary, and unprofessional

manner was mentioned in several complaints, id. at 118, 129, 132, as well as in a

number of student interviews conducted by the panel, e.g., IAF, Tab 8 at 5, 13,

21, 41, 58, 66, 78. In his email to the panel, the appellant did not deny the

touching, but stated that, because he “can read body language,” any such touching

was always welcome. Id. at 128.

The administrative judge found that the appellant did touch students, but

there was no policy against it and no students were offended. The administrative

judge therefore found that there was no misconduct, and he did not sustain this

specification. ID at 14.

On petition for review, the agency disputes the administrative judge’s

analysis and argues that it presented sufficient evidence for the Board to sustain

this specification. PFR, Tab 7 at 38, 41. We agree. The record shows that the

appellant, on one or two occasions, sat next to a student in class and rubbed his

back for approximately 15 seconds. HT at 148-49 (testimony of Midshipman

A.B.). The appellant does not deny this behavior, IAF, Tab 7 at 106-07, and we

find that it was inappropriate on its face. Furthermore, the student at issue

testified, unsurprisingly, that the appellant’s actions made him feel

uncomfortable. 11 HT at 148-49 (testimony of Midshipman A.B.). We agree with

the agency that this constituted conduct unbecoming.

Specification (6) is sustained.

In specification (6), the agency alleged that the appellant repeatedly

mispronounced an Asian-American student’s name despite being corrected

several times. IAF, Tab 7 at 79. The student in question, Midshipman R.J.,

raised this matter in his complaint, stating that, “especially when angry,” the

appellant would call him different last names “which were common Asian last

names,” and that, when corrected, he “always brushed it off, . . . one time even

telling [the student] to ‘f*** off.’” Id. at 133. The student’s testimony was

consistent with his complaint. HT at 154 (testimony of Midshipman R.J.).

Midshipman R.J. also testified that he believed that the appellant intentionally

Although the student’s feelings about the appellant’s behavior are not dispositive,

they lend further support to our finding that it was inappropriate.

called him the wrong name because he repeatedly mispronounced his name

despite several corrections, and that he viewed the mispronunciations as a “slap in

the face” given his status as a child of immigrant parents who came to the United

States with “literally nothing,” and given that a family name holds significant

honor in his culture. HT at 155-56 (testimony of Midshipman R.J.). During the

investigation, a number of other students remarked upon the appellant’s

mispronouncing of names, specifically Asian names. See, e.g., IAF, Tab 8 at 13,

46, 58, 62, 68, 70, 85. In his deposition, the appellant stated three times that he

did not “recollect” mispronouncing the student’s name, although he then denied

that it happened after being specifically asked whether he denied mispronouncing

the name. IAF, Tab 28 at 78-79. In his written reply to the panel, he

acknowledged that, while he tries to get names right, he “can’t always.” He

denied making a “f*** you” comment, IAF, Tab 8 at 129, although that was not

specifically what Midshipman R.J. had claimed.

In finding this specification not sustained, the administrative judge

questioned Midshipman R.J.’s credibility because, when he was interviewed by

the panel, he stated that he was unsure whether the mispronunciation was “done

on purpose,” and because, while he stated that the appellant used profanity in the

classroom, and that two or three times it was directed at him personally, he did

not mention the “f*** off” comment. IAF, Tab 8 at 60; ID at 15. The

administrative judge also found a lack of corroboration of this specification by

the rest of the class. ID at 15.

On review, the agency argues that the administrative judge’s credibility

determination was not demeanor-based, and that it therefore should not be

afforded deference. PFR File, Tab 7 at 47. However, the Board has held that a

credibility determination made after an in-person hearing is at least implicitly

based on witness demeanor. Aldridge v. Department of Agriculture, 111 M.S.P.R.

670, ¶ 11 (2009). Such demeanor-based credibility determinations are entitled to

deference and may only be overturned when the Board has “sufficiently sound”

reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). There are sufficiently sound reasons in this case for us to find

Midshipman R.J. a credible witness notwithstanding the administrative judge’s

finding to the contrary. Midshipman R.J.’s testimony was consistent with his

complaint and supported by other students’ accounts as to the appellant’s

mispronouncing of students’ names. Although Midshipman R.J. informed the

panel that it was “[h]ard to tell if it was done on purpose,” he nevertheless “felt it

was directed intentionall[y]” at him. IAF, Tab 8 at 60. As stated above, the

appellant elected not to testify at the hearing. See Scott v. Department of Justice,

69 M.S.P.R. 211, 229 (1995) (noting that, in weighing the evidence, that the

appellant did not explain why he did not testify under oath or provide a sworn

statement), aff’d, 99 F.3d 1160 (Fed. Cir. 1996). That the appellant did not recall

mispronouncing Midshipman R.J.’s name is not the same as denying that it

occurred. Hillen v. Department of the Army, 50 M.S.P.R. 293, 302 (1991). His

denial, in turn, occurred only after he had stated three times that he did not

“recollect” doing so, and only after he was specifically asked whether he denied

it. See Spurlock v. Department of Justice, 894 F.2d 1328, 1330 (Fed. Cir. 1990)

(holding that self-contradiction and imprecision detract from the weight to be

accorded the evidence upon which an administrative board bases its decision).

For these reasons, we find that Midshipman R.J.’s account is credible and that the

appellant engaged in conduct unbecoming as specified.

Specification (7) is sustained.

In this specification, the agency alleged that the appellant made demeaning

sexually related comments about an adolescent girl attending a dance with his son

and similar offensive comments about the girl’s mother. IAF, Tab 7 at 79.

Midshipman M.D. reported that the appellant said that the appellant called the

girl a “slut” who was “looking for something more,” and said that her short dress

suggested her sexual intentions. IAF, Tab 7 at 118. According to Midshipman

M.D., the appellant then showed the class a photo of the girl with his son, again

focusing on the shortness of her dress, and also made fun of her mother’s physical

features, skirt length, clothing choices, and parental decision-making. Id. at 119.

Midshipman M.D.’s hearing testimony was in accord, HT at 100-01 (testimony of

Midshipman M.D.), as was the testimony of another student, HT at 158-59

(testimony of Midshipman J.R.). Two of the other students who filed complaints

also mentioned this incident, IAF, Tab 7 at 129, 131, as did a number of the

students who were interviewed by the panel. See, e.g., IAF, Tab 8 at 7, 11, 13,

15, 17, 21, 25, 27, 29, 31, 33, 37, 41, 82. The appellant admitted to these actions

in his email to the panel. Id. at 128.

Regarding this specification, the administrative judge found that there was

no prohibition against discussing either one’s family or sexual topics, and that

because there was no misconduct, the specification was not sustained. ID at 15.

We disagree with the administrative judge’s reasoning.

There is no dispute that the appellant made the comments in question. IAF,

Tab 7 at 107-08; ID at 15. An agency is not required to describe in detail all

potentially prohibited employee conduct and the resulting discipline. Rather, an

agency may reasonably require its employees to exercise good judgment,

notwithstanding a lack of literal guidance from an agency rule, regulation, or

other statement of policy. Byers v. Department of Veterans Affairs, 89 M.S.P.R.

655, ¶ 24 (2001). Here, given the Academy’s commitment to the principles of

dignity and respect, the appellant should have known that his actions would be

considered inappropriate and could constitute actionable misconduct. In

particular, the appellant should have known that making demeaning sexual

comments about an adolescent would constitute conduct unbecoming a Federal

employee. This specification is sustained.

The agency’s charge is sustained.

Because we have found all of the specifications sustained, the charge of

Conduct Unbecoming is sustained. 12 See Johnson v. Small Business

Administration, 97 M.S.P.R. 571, ¶¶ 24-25 (2004).

The agency has established a nexus between the sustained misconduct and the

efficiency of the service.

In addition to the requirement that an agency must prove the charge it has

brought against the appellant, it must also prove that there is a nexus, i.e., a clear

and direct relationship between the articulated grounds for the adverse action and

either the appellant’s ability to accomplish his duties satisfactorily or some other

legitimate government interest. Canada v. Department of Homeland Security,

113 M.S.P.R. 509, ¶ 10 (2010). Here, the charge bears on the Academy’s mission

of preparing midshipmen morally, mentally, and physically to fulfill their

leadership role in the Navy and Marine Corps, and of the importance of training

midshipmen to treat others with dignity and respect and to build trust between

these future leaders and their subordinates, who will be asked to follow their

commands. HT at 9-10 (testimony of Commandant). Every member of the

Academy, including civilian faculty like the appellant, is expected to act in a

manner that reflects the core values and principles being taught. HT at 11

(testimony of the Commandant). We therefore find that the agency has

established a nexus between the sustained misconduct and the efficiency of the

service. See Canada, 113 M.S.P.R. 509, ¶ 11 (finding nexus, based on conduct

adversely affecting the agency’s mission, when the appellants, who were first-line

As noted, the administrative judge found that the appellant did not establish his

claims that, in taking this action, the agency retaliated against him for engaging in

whistleblowing, violated his First Amendment rights, and committed harmful

procedural error. ID at 16-18. The appellant has not filed a petition for review

challenging the administrative judge’s findings not sustaining any of these affirmative

defenses. Therefore, and because, based on our review, we determine the findings to be

well supported, we will not disturb them. See 5 C.F.R. § 1201.115 (providing that the

Board normally will consider only issues raised in a timely filed petition or cross

petition for review).

supervisors, oversaw a young and impressionable workforce of junior employees

who looked to the appellants for guidance and direction).

The agency has shown that removal is a reasonable penalty for the sustained

misconduct.

When, as here, all of an agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

the relevant factors and exercised management discretion within the tolerable

limits of reasonableness. In making this determination, the Board must give due

weight to the agency’s primary discretion in maintaining employee discipline and

efficiency, recognizing that the Board’s function is not to displace management’s

responsibility, but to ensure that management’s judgment has been properly

exercised. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12 (2014).

Here, in arriving at his decision to affirm the appellant’s removal, the

deciding official considered the factors set forth by the Board in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), as appropriate in

making a penalty determination. IAF, Tab 7 at 21-24. In so doing, he concurred

in the analysis of the Douglas factors made by the proposing official. Id.

at 79-83. The most important of these factors is the nature and seriousness of the

offense. Boo v. Department of Homeland Security, 122 M.S.P.R 100, ¶ 18

(2014). Regarding this factor, the deciding official found that the appellant’s

misconduct was intentional and repeated, and that it occurred both in the

classroom and in emails to students. IAF, Tab 7 at 21. In considering the

appellant’s job level and type of employment, the deciding official found that, as

a senior faculty member and instructor of future Navy and Marine Corps leaders,

the appellant’s conduct fell short of the requirement that he establish and

maintain a classroom environment that respects the dignity of the individual and

develops an appreciation for an appropriate superior-subordinate relationship. Id.

at 22. The deciding official also considered that, since 2013, the appellant was

formally counseled twice and received a letter of reprimand regarding his

unprofessional behavior. Id. The deciding official noted that the appellant had

been formally counseled against sending partially clothed photos of himself to

students, yet repeated this conduct. Id. at 23. Based on the appellant’s insistence

that his actions were proper and that he is entitled to continue such behavior, the

deciding official indicated that, in his view, the appellant lacks rehabilitative

potential, stating that he lacks confidence that the appellant will perform at a

satisfactory level in the future and change his behavior. Id. at 23-24. The

deciding official also stated that removal is within the range of remedies in the

agency’s table of penalties for a similar offense of inappropriate conduct. Id.

at 24. The deciding official considered mitigating factors, including the

appellant’s lengthy service as a faculty member, his satisfactory official

performance ratings, and his receipt of performance awards in the 1990s. Id.

at 22. Despite these factors, the administrative judge concluded that removal was

the appropriate penalty. Id. at 20. Apart from a pro forma statement in his initial

appeal form, IAF, Tab 1 at 6, the appellant has not contested the agency’s penalty

determination.

Based on our review, we find that the deciding official carefully considered

the appropriate Douglas factors, and we agree that removal is within the

parameters of reasonableness for the sustained charge. We therefore defer to the

agency’s penalty determination.

NOTICE OF APPEAL RIGHTS 13

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 14 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the