By Deborah J. Hopkins, April 15, 2024

Buried in the trove of MSPB’s case inventory are hundreds of cases involving discipline of Federal employees. Maybe it’s because the Board members are working through an unprecedented backlog and are issuing cases at a dizzying pace but, regardless of the reason, I’ve noticed some highly disturbing conduct in recent cases.

The good news is the agencies employing these individuals are almost always taking the conduct seriously. Most have removed offending employees for egregious misconduct. Below are summaries of three cases dealing with removable sexual misconduct in the workplace.

The English Professor Whose Discussion Went Beyond Literature

Fleming v. Navy, PH-0752-18-0457-I-1 (Jan. 26, 2024)(NP)

The appellant was a tenured professor at the U.S. Naval Academy who taught a Rhetoric & Introduction to Literature class. The agency removed him for Conduct Unbecoming a Federal Employee with seven specifications because he:

  • Referred to students as “right-wing extremists.”
  • Made comments about and discussed anal sex, oral sex, and transgender surgery.
  • Emailed partially clothed photos of himself to students after having been counseled that doing so was inappropriate and agreeing to refrain from doing so.
  • Touched students without their approval.
  • Referred to his own sexual experiences.
  • Repeatedly mispronounced an Asian-American student’s name despite being corrected several times.
  • Made demeaning, sexually related comments about a child and her mother because of how they were dressed.

Id. at 2-3.

The administrative judge (AJ) overturned the removal, (surprisingly) finding the agency did not prove any of the specifications, but the Board disagreed and reinstated the removal because all seven specifications of the conduct were unprofessional, and the deciding official’s penalty was within the bounds of reasonableness.

The FBI Agent Who Harassed Young Women

Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)

The appellant, a GS-13 special agent at the FBI, specialized in working cases involving crimes against children. The agency removed him for professional off-duty conduct after learning he made “persistent and inappropriate advances toward two female employees at two different stores … both of whom had separately complained to the local police about the appellant’s conduct.” Id. at ¶2. One of the employees was only 16 years old.

Although the conduct was off-duty, the AJ found the agency “established nexus because the appellant’s misconduct contravenes the agency’s primary mission to protect people…. [and] the appellant was specifically tasked with enforcing Federal statutes to protect children under the age of 18.” Id. at ¶8. She also found nexus because the conduct adversely affected his supervisors’ trust and confidence, as well as that of local law enforcement. The appellant argued his conduct did not establish nexus because it was “mere flirtation,” Id. at ¶9, but the AJ and the Board disagreed.

The Board upheld the removal, finding the penalty reasonable especially because only three months before the events in this case, local police warned the appellant about bothering a young cashier at a grocery store. In addition, the appellant had a previous 45-day suspension for making sexually inappropriate remarks to female colleagues. While the suspension had occurred 14 years earlier, it was still an aggravating factor given the similarity in the conduct.

The agency’s investigation revealed the appellant had engaged in additional misconduct, but it declined to charge him for the below instances, listed in ¶2:

  • Failure to report police contact related to the two store employees,
  • Lack of candor in the same incidents involving the two store employees,
  • Making several unwanted sexual advances toward colleagues,
  • Engaging in a profane outburst during firearms training,
  • His role in a domestic disturbance between his son’s mother and a female neighbor with whom he was having a relationship, and
  • Unauthorized use of an FBI database to obtain the telephone number of a former female investigation subject.

The Board held that while the agency “took an unusual approach to its disciplinary action … assessing each charge in isolation and proposing the appellant’s removal based solely on what it considered to be the most serious one,” the removal for the charged misconduct alone was still warranted. Id. at ¶15.

The Supervisor Who Had an Affair with a Married Subordinate

Riley v. USPS, DC-0752-16-0465-I-1 (Feb. 20, 2024)(NP)

The appellant, a postmaster, was removed for Improper Conduct after he admitted to having a sexual relationship with a subordinate, who was married at the time of the affair. His proposed removal notice also indicated he sent inappropriate text messages to, inappropriately touched, and/or pursued a sexual relationship with other female subordinates.

The appellant argued that the relationship with his married subordinate was consensual and personal and did not constitute improper conduct, because it did not result in favoritism or an unsafe work environment. The agency countered that favoritism was not an essential part of the charge and that the conduct was improper regardless of whether it was consensual, because of the appearance of impropriety or favoritism to other employees who learned of the affair.

Regarding his conduct with other employees, which included attempting to have sexual relationships with them, the Board also found improper:

  • A text message the appellant sent to a subordinate, telling her that she was his favorite and that he would be on her “like a cheetah on a gazelle.” at 6.
  • The appellant put his hand up a different subordinate’s shirt and unhooked her bra. at 7.

Agencies have long taken actions involving sexual misconduct seriously, and it’s a good thing because this type of conduct is one of the most effective ways to make a workplace unsafe and drive away good employees. The Board clearly sees things the same way. [email protected]

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