DEPARTMENT OF THE NAVY OFFICE OF THE ACADEMIC DEAN AND PROVOST UNITED STATES NAVAL ACADEMY 539 MCNAIR ROAD ANNAPDLIs MARYLAND 21402-1323 1 5 15 AUG 2018 From: Academic Dean and Provost To: Dr. Bruce Fleming, Professor AD-1710-07 Subj: NOTICE OF DECISION ON PROPOSED REMOVAL Ref: 5 CFR 752 SECNAVINST 12752.1A dated 3 MAY 16 (C) Faculty Misconduct Inquiry dated 18 MAY 18 Notice of Proposed Removal dated 26 JUN 2018 ACDEANINST1531.63C dated 1 APR 16 Encl: (1) Merit Systems Protection Board Appeals Form 1. Pursuant to reference and this is a notice that I have decided to remove you from your position and federal service effective 17 August 2018. This decision is made to promote the ef?ciency of the service and is based on the following Reasons and Speci?cations as stated in the Notice of Proposed Removal (reference 2. Charge: Conduct Unbecoming a Federal Employee Speci?cations. During the fall semester of the Academic Year 201 7-2018, you engaged in unprofessional conduct in the classroom and outside the classroom. Your conduct included, but is not limited to: (I) referring to students as ?right-wing extremists, and/0r words to that e?ect; (2) classroom regarding anal sex, oral sex, and transgender surgery; (3) emailing partially clothed pictures of yourself to students after having been counseled that doing so was inappropriate and your agreement not to do so in the future; (4) touching students without their approval; (5) referring to your own sexual experiences; (6) repeatedly mispronouncing an Asian-American student is name despite being corrected several times by the student; and (7) making demeaning sexually related comments about a young woman attending a dance with your son and similar offensive comments about the young woman ?5 mother. See reference The investigating panel?s ?nal report (reference C) supported the charges and speci?c misconduct cited in the speci?cations above. In your response to the panel?s report, you made it clear that you do not accept responsibility for these actions. You either dispute that they occurred, or you argue that you are within your rights to engage in these activities. In his Notice of Proposed Removal (reference the Proposing Of?cial (COL Aytes) writes: FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure can result in both civil and criminal penalties have carefully considered proposing a lesser form of disciplinary action to include a long-term suspension. However, given the serious nature and multiple instances of inappropriate classroom conduct, the complete disregard for the Department Chair?s counseling [sic], and refusal to even acknowledge any responsibility, I have no reason to believe that any penalty, short of removal from the Federal service, will change your behavior. I propose that the Deciding Of?cial ?nd that rehabilitation is unlikely.? In the written reply to the Notice of Proposed Removal, you claim that you are being unjusti?ably punished for articles you have published, and that you are being denied your academic freedom to use ?theatrical and provocative? teaching methods. I do not agree; I ?nd nothing in the record that supports your claim. It is apparent that you do not ?nd any aspect of your behavior to be inapprOpriate for a federal employee, and you offer no intention to alter any aspect of your behavior. Pertinent to this point, the Proposing Official also writes in his Notice of Proposed Removal: ?1 also request that the Deciding Of?cial consider that the adequacy and effectiveness of alternative sanctions appears not to be present to deter similar conduct in the future given (1) the close proximity between the September 2015 counseling regarding the sharing of pictures and its reoccurrence in September 2017 and (2) the unauthorized disclosure of personal information of a former student in April 2018 in an effort to defend your current misconduct.? 3. I have care?illy considered all of the information contained in the Notice of Proposed Removal along with its supporting documentation, and the supplemental information you provided in your 3 July 2018 written reply. Based on my review, I ?nd that the reasons and speci?cations contained in the Notice of Proposed Removal are supported by the record. To reach my ?nal decision, I have considered the following factors: a. The nature and seriousness of the offense, and its relation to employee?s duties. position. and responsibility, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. The Pr0posing Of?cial determined in his Notice of Pr0posed Removal that the ?inquiry revealed serious intentional misconduct both in the classroom setting, and in emails to your students.? In your written reSponse to the investigating panel, you made it clear that your conduct was intentional, and you do not see any fault in your behavior. The investigating panel con?rmed your unprofessional behavior with respect to all of the complaints listed in the speci?cation above, and they further determined that such behavior was repeated on multiple occasions. As a result, the Proposing Of?cial determined that ?your conduct was inapprOpriate and unprofessional in the federal workplace, and especially egregious given your position as a senior member of the faculty.? I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in my determination of the appropriate penalty. 2 FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure can result in both civil and criminal penalties b. The employee?s iob level and type of employment. including supervisory or ?duciarv role contacts with public. and prominence of the position. Your position requires you to play a vital role in the education and professional development of future Navy and Marine Corps leaders. In this role, it is crucial that you provide a positive and supportive classroom environment in which midshipmen may focus on their education. You are in a senior level faculty position and are expected to be a role?model to midshipmen in that developmental process. As the Proposing Of?cial writes in his Notice of Proposed Removal, ?it is critical that you establish and maintain a classroom environment that respects the dignity of the individual and develops an understanding and appreciation for an apprOpriate superior-subordinate relationship. Your conduct during the fall of 2017 fell well short of this mark.? The investigating panel report similarly states that ?Instructors have an asymmetric relationship with their students. Simply saying ?no? or ?please stop? or ?you?re making me uncomfortable? is not often a realistic option for students. The best practice is to refrain from touching students altogether beyond a handshake in keeping with a professional atmosphere and relationship.? In fact, several of the student complaints against you speci?cally highlight the inappropriate nature of this unwanted touching. Due to the job level and the nature of your offenses, I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in making my determination of the appropriate penalty. c. The employee?s past disciplinary record, past work record. length of service. performance on the iob. and ability to get along with others and dependability. You have been a faculty member for over 30 years, your of?cial performance has been rated as satisfactory, and you received performance awards in the 1990?s. I concur with the Proposing Of?cial, and consider this to be a potentially mitigating factor. However, since 2013 you have engaged in behaviors that are unacceptable. Speci?cally, since 2013 there have been two instances of formal counseling (one involving inappropriate photos of yourself, and one resulting from the formal complaint ?led by a midshipman) conducted at the Department level as well as two formal letters of reprimand (one in 2014 and one in 2018) issued from the Division regarding your inappropriate professional behavior during that period. As the Proposing Official cites in the Notice of Preposed Removal, in your official personnel ?le now is a letter of reprimand regarding an intentional PII violation by you, a disclosure made by you by email to all faculty at USNA and that was speci?cally targeted at a midshipman, the same midshipman who had previously ?led a formal complaint against you. That student complaint was investigated and resulted in formal counseling of you at the Department level, and yet you continue to reject any responsibility for your actions in that case, and chose to share his federally protected information with all faculty as a means to defend yourself during this investigation. In Stunmary, the extent of your disciplinary record compiled since 2013 is unacceptable, and outweighs your satisfactory of?cial performance record. I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in making my determination of the appropriate penalty. 3 FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure can result in both civil and criminal penalties d. The clarity with which the employee was on notice of any rules that were violated in committing the offense. or had been warned about the conduct in question. As the Proposing Of?cial cites in his Notice of Proposed Removal, in a 2015 formal counseling by your Department Chair, you were directed to refrain from sending partially-clothed photos of yourself to students. As con?rmed by the investigating panel?s report and in spite of your claims to the contrary, you repeated this behavior in the fall of 2017. As noted in the investigating report, ?Dr. Fleming states that this behavior occurred only a single time two years ago, yet the interview statements and email documentation clearly contradict this assertion.? That report further states that ?the panel ?nds sending shirtless photographs to be outside the accepted standards of professional conduct for a faculty member.? This is precisely what you were counseled and directed in 2015 not to do. I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in making my determination of the appropriate penalty. e. The notoriety of the offense or its impact upon the reputation of the Agency. To date, your actions are not widely known outside of the Naval Academy, and have not had an impact on the reputation of the Naval Academy. However, you have used Naval Academy email distribution lists several times to make your actions and rebuttals known broadly within the Naval Academy. I concur with the Proposing Of?cial, and ?nd this to be a neutral factor in making my determination of the appropriate penalty. f. The effect of the offense upon the employee?s ability to perform at a satisfactory level and its effect upon supervisors? con?dence in the employee?s work ability to perform assigned duties. In his Notice of Proposed Removal, the Proposing Of?cial enumerated a subset of the original complaints made against you by students in your fall 2017 classes. While each of the complaints he listed was con?rmed by the investigating panel, the most serious are touching midshipmen in class without their consent, and emailing several partially clothed photos of yourself to your class after having been formally counseled and directed not to do so. To be clear, the midshipmen who formally complained found this behavior to be inappropriate and unwanted, and the investigating panel and the Proposing Of?cial agree. And yet, you reject the assertion that your touching of midshipmen is inapprOpriate, and you deny that you emailed any photos of yourself, in spite of clear evidence that you did so. In addition, you identi?ed a current midshipman and former student of yours by name when you provided federally protected information about him in an email to all faculty at USNA. That midshipman is the same student who had previously filed a formal complaint against you in 2016. In each of these instances, you have rejected any responsibility for your actions, and you have made clear in your written responses to the investigating panel, to its ?nal report, and to the Notice of Proposed Removal that you are entitled to continue this behavior. Given this set of facts, I do not have con?dence that you will perform at a satisfactory level in the future. I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in making my determination that removal is the appropriate penalty. g. Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 4 FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure can result in both civil and criminal penalties I am unaware of any similar misconduct by a faculty employee. I concur with the Proposing Of?cial, and ?nd this to be a neutral factor in making my determination of the appropriate penalty. h. Consistency with table of penalties from SECNAVINST 12752.1A and the Department of the Navy Civilian Human Resource Manual (CHRM) Subchapter 752 Disciplinary Actions The recommended range of remedies for a similar offense of inappropriate conduct of a federal employee ranges from Reprimand to Removal. I concur with the Proposing Of?cial, and ?nd this to be a neutral factor in making my determination of the appropriate penalty. i. The potential for the employee?s rehabilitation and the adequacy and effectiveness of alternative sanctions. Since 2013 you have been formally counseled twice at the Department level, and have received two letters of reprimand at the Division level. Your written responses to the investigating panel and to the Notice of Proposed Removal clearly indicate that you do not see anything inappropriate in your conduct, and you reject responsibility for anything that could be considered inappropriate. In some instances, you assert that the events did not even occur, and yet the evidence is clear g. the inappropriate photos you sent, and your inappropriate touching of students) that they did. You have shown no evidence that rehabilitation or a lesser sanction would be effective; indeed, such sanctions have not been effective to date. In his Notice of Proposed Removal, the Pr0posing Of?cial writes that ?given the serious nature and multiple instances of inappropriate classroom conduct, the complete disregard for the Department Chair?s counselling [sic], and refusal to even acknowledge any responsibility, I have no reason to believe that any penalty, short of removal from the Federal service, will change your behavior.? I concur with the Proposing Of?cial, and ?nd this to be an aggravating factor in making my determination - of the appropriate penalty. 4. In accordance with reference you may appeal this decision to the Superintendent or his designee within 10 working days of receiving this notice. 5. You have the right to appeal this decision to the Merit Systems Protection Board (MSPB). If you choose to appeal this removal decision to the MSPB, you may ?le your appeal any time after the effective date of the action, but not later than thirty (30) calendar days after the effective date. If you choose to ?le an appeal, it may be done on-line at: by personal delivery during normal business hours to the MSPB, by facsimile, or by mail addressed as follows: Regional Director Merit Systems Protection Board (MSPB) Northeast Regional Of?ce 1601 Market Street, Suite 1700 Philadelphia, PA 19103 5 FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure can result in both civil and criminal penalties 6. If you believe that this adverse action discriminates against you on the basis of your race, color, religion. sex, national origin, age, or disability you may contact the EEO Office at 410- 29373558 to file a complaint. If you choose to file an EEO complaint, you will have no other means of appeal. To summarize, you may appeal this decision to the MSPB in accordance with enclosure 1, or you may file a discrimination complaint, but can only select one (1) of the above options with no other redress. Whichever appeal is filed first will be considered an election to proceed in that fomm. 7. If you need funher information regarding your rights contact Ms. Alaina Kistler of the Human Resources Office, Ielephon fl Vt 66 Andrew T. Phillips Date Academic Dean Provost Receipt Acknowledged: Signature Date 6 FOR OFFICIAL USE ONLY PRIVACY SENSITIVE Any misuse or unauthorized disclosure tan result in both civil and criminal penalties Post-Employment lnsvuniuns, USNA HR Please immediately contact your Department cnairto provide time attendance information for the week of13~17 August 2013. Leave must be requested and approved prior to the end ofthe pay period, or yuu be carried in an Absent Without Leave (AWOL) status from 13417 August 2018' 17 you performed Government work during this past week, please attest to your time via the Department Chair. Within 5 business days, please contact Joe Parks at_ to coordinate a time to drop off the following in Halligan Hall: 1) Common Access Card (CAC) 2) Any Library materials, lnterLibrary Loans, or Faculty Study Keys 3) Any USNA keys in your possession oi Government travel card 5i Any Government equipment you may have at home 6) Your faculty/staff parking sticker must be removed from your vehiclels) 7i PE Button Vard access is now limited to public spaces only. Access to noncpublic USNA offices orfatilities Is no longerauthorized. Vour lT account has been terminated Any personal items in youroffice will be packaged and available for pick up in Halligan Hall. You will be notified when those items are ready for pick up, If there is a specific item in your office which you believe may be confused with Government property, please notify Mr, Parks and he will ensure that it is returned to you. Your annual leave will pay out in your final paycheck Please contact the civilian Benetits Center (cac) at any questions regarding your civilian benefits (recu, FEHB, retirement information, TSP, FEDVIP, etc). The cac is open 7:303mc7230pm, with the exception of Federal Holidays. 5.. :18 95925. oz .550 555 3.0.33 x. mew may--MS: in. 3.96: 59% 22.. 6. .2qu ,m .38 .533. 28.83 .203.-- 5. 5P5: EC. 20> 8.5 $28 25 $5135.53 ,oz moon. 5.23 45.85 5:85.53 in. 88.2.. 5.533 a ,5 he. 2.1.3 .5. .53 .52.. .5. 2. $552.2. EUR23 .3 wo-~ mmom< 61 335.30 .w 2K EEO $9583. 5:5: 5:36 . .. 3 22.5.5.5 .ngzs. .5 . . .35.. E. 25.: .352 gauging 52 as .a 23:33 a gm.an .35? 13.3.. a 3 0.9.. so. 95258 .5 55.5.3. 32.2": 3 =55 .5155. was. 2.202 .250 3 20:33.3 .58. .32.. 3:02 2.19.5 32:85 .508 so>> 5.: .55. 3.5 .536 :9 oh 5.. a. .o '33. x. "52.2. 5% .5 5 . >38 8209 . 0.: .5. ME: .3 ?2.22. on .8725 5. 3.45.9.5 50> 2 5.. .32; 0E s. 2.: tgumm Em2>3m2m FEE moxie mot/mum kzmz>oi2m .50 5.3i=2. . .o 2.58.. .53. 5 a 5:05.. 5 c. 33.53. .2. 3.5; :25 .513. 3:5. 8:25.. 2.55.155 sea a 2 35.2.2. 53 $.82 a: 6 E32. .. .5. a. .0 59:2; 5.. 3.22.3 52 6 2.52. .5. 9 52. E. a: QUZAJ--DWZH Baum" OP HU--HOZ UNEMPLOYMENT COMPENSATION FOR FEDERAL EMPLOYEES (UCFE) PROGRAM UNEMPLOYMENT INSURANCE (UI) FOR FEDERAL WORKERS 200mm TAKE THIS FORM WITH YOU IF YOU GO TO FILE A CLAIM E??m??r??e?hll?g??mn GENERAL INFORMATION: 1. WHO WILL PAY UNEMPLOYMENT If you are eligible, you will be paid by a State employment security agency under the provisions of its unemployment insurance (UI) law. The amount of your regular weekly bene?ts and the period for which bene?ts will be paid will generally be determined by the law of the State in which you had your last Of?cial Duty Station. This Duty Station will be printed on your ?nal ?Noti?cation of Personnel Action?, SF-SO. If you have received all the regular bene?ts for which you are eligible, you may, under certain circumstances, become eligible for additional weeks of extended bene?ts; check with a State local of?ce of?cial. If your last duty station was outside the United States, you will not be eligible until you return to the United States, including the District of Columbia, Puerto Rico, and Virgin Islands. Your bene?t rights will then be determined under the law of your State of residence. UCFEIU I for unemployed Federal workers is paid from U.S. Government funds. No deductions were taken from your pay to ?nance these bene?ts. 2. UNDER WHAT CONDITIONS WILL I BE All State laws require that: a. You must be unemployed, able to work, and available for suitable work; (In some cases, you may be eligible if you are employed less than full time); b. You must register for work and ?le a claim at a local public employment servicelUI claim of?ce; 0. You must continue to report to the of?ce as directed; and d. You must have had a certain amount of employment/wages within a base period of 1 year speci?ed in the State law and have been separated through no fault of your own. All State UI laws will deny you bene?ts for such reasons as: a. Quitting yourjob voluntarily without good cause or being discharged for misconduct connected with work; or b. Refusing an offer of a suitable job without good cause. Some State UI laws deny or reduce UI bene?ts for certain types of payments you may receive (retirement, severance, and/or lump-sum amount for unused, accrued annual leave). 3. DO I HAVE THE RIGHT OF Yes. If a determination is made denying you bene?ts, you have the right to appeal as provided in the applicable State law. 4. ARE THERE ANY Yes. If you will?Jlly make a false (fraudulent) claim, you may be fined, imprisoned, or both. If you make a mistake in giving information when you ?le your claim, notify the local 111 claims of?ce as soon as you discover the mistake; prompt noti?cation may avoid a penalty. (The above statements are issued for general information; they do not have the effect of law, regulation, or ruling). IF YOU BECOME REEMPLOYED and have been collecting bene?t payments, it is your RESPONSIBILITY to notify the local of?ce, in writing, to discontinue paying bene?ts now that you are employed. Failure to do so may result in a penalty such as a?ne, imprisonment, or both. GPO 1920-0-282-08li200 [2 STANDARD FORM 8 BACK (Rev. 6.38?)