Committee on Oversight and Government Reform

U.S. House of Representatives 

115th Congress

Tables of Penalties:

Examining Sexual Misconduct in the Federal Workplace and Lax 

Federal Responses 

October 19, 2017

Staff Report 
2

A Letter from the Chairman

October 19, 2017

Dear agency heads and chief human capital officers: 

Sexual misconduct is a challenge the federal government must aggressively and 

consistently address to ensure the well-being and safety of its workforce. 

The vast majority of federal employees do not engage in conduct unbefitting the civil 

service. However, for those who do engage in sexual misconduct, swift and forceful 

accountability is warranted and required. In the 114th Congress, the Committee identified 

examples of this unacceptable behavior including: the solicitation of prostitutes while on official 

U.S. government business; the sexual harassment of colleagues and interns; and the accessing of 

pornography during the workday. Because the sexual misconduct and related unacceptable 

activities continues, a clear, coherent, consistent and forceful federal response is necessary. 

Accordingly, last year the Committee’s majority staff initiated an examination of agency 

disciplinary policies by reviewing each agency’s uniquely constructed “Table of Penalties.” 

The review showed no standardized definition of sexual misconduct and no requirement 

agencies have standardized recommended penalties. This could lead to inconsistent responses to 

unlawful or noxious behavior and disparate treatment of the conduct and offenders depending on 

the agency. The review also found recommended discipline varies within an agency and some 

agencies lack a Table of Penalties altogether.

The federal government must address these inconsistencies to better identify and combat 

sexual misconduct within the federal workforce. 

Federal employees deserve a safe work environment, free of predatory behavior. 

Employees should feel safe and protected doing the people’s business. And the American people 

deserve a work force and a work environment reflective of the law, their high standards for 

appropriate conduct, and conducive with maximum productivity. 

Sincerely, 

Trey Gowdy
3

Executive Summary:

Overview:

A Table of Penalties is a list of recommended disciplinary actions for various personnel 

misconduct, ranging from reprimand to removal. Agencies use Tables of Penalties to 

standardize discipline across an agency.

The proper use of a Table of Penalties ensures the appropriateness and consistency of a 

penalty in relation to the charge. It also ensures merit system principles guide the process by 

providing penalty transparency, reducing arbitrary or capricious penalties, and guiding 

supervisors who deal with these issues.

Tables of Penalties are guidelines that work in conjunction with the criteria supervisors 

use to determine appropriate penalties for misconduct, called the Douglas Factors.

1 They do not 

specify mandatory discipline.

2

 Tables of Penalties also do not apply to contractors, and each 

agency has discretion as to which employees the Table will apply.

Last year, the Committee initiated an oversight inquiry into the use of Tables of Penalties

and disciplinary guidelines across government. Toward that end, on March 18, 2016, the 

Committee requested Tables of Penalties from 26 executive agencies.3

Given the broad range of topics addressed in Tables of Penalties, the review focused 

initially on agency treatment of sexual misconduct, an egregious form of wrongdoing and the 

subject of recent investigative findings by the Committee.

Key Findings: 

1. Some agencies lack a Table of Penalties altogether. Others fail to address sexual 

misconduct

Eight agencies have no Table of Penalties, including the Office of Personnel 

Management—which is the agency ostensibly serving as the human resources manager for the 

federal government.4 Seven agencies have a Table of Penalties, but do not expressly mention 

sexual misconduct.

 1 The Douglas Factors are twelve criteria that supervisors are to consider in determining appropriate penalties for 

misconduct. See https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglasfactors.pdf.

2 Id.

3 See App’x A, infra, for a list of agencies queried. 4 In some cases, agencies reported by components. See Appendix B for agency-by-agency breakdowns. 
4

In May 2017, a Department of Justice (DOJ) Office of Inspector General (OIG) report 

revealed the dangers associated with the lack of a Table of Penalties.

5

 Specifically, the report 

found the Civil Division’s handling of sexual misconduct allegations was not consistent, 

penalties were not consistent for high-performing employees, and employees received 

performance awards even while the subject of ongoing sexual harassment or misconduct 

investigations or while disciplinary actions were in effect.

2. Broad disciplinary recommendations, inconsistent from one agency to another, put 

employees at risk of arbitrary punishment

Recommended disciplinary action ranges from oral or written reprimand to removal for 

one charge, effectively providing no guidance to supervisors. For example, at the Department of 

Education, the recommended action for violation of the offense “Inappropriate behavior of a 

sexual nature” is “reprimand to removal” for a first offense. In testimony before the Committee, 

former acting administrator of the Transportation Security Administration Mark Hatfield stated 

broad recommended penalties like those are “. . . constant roiling distractions in terms of 

managing people in the field” and used this as an excuse for his lack of disciplinary action in a 

misconduct case at the agency.6

Since agencies have the ability to create their own Tables of Penalties, recommended 

discipline, even for similar types of misconduct, can vary across the government and among

components of agencies. For example, the DOJ, the Drug Enforcement Agency (DEA), the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the U.S. Marshals Service 

(USMS) have different punishments for soliciting or engaging in prostitution.

3. There is no standard definition of sexual misconduct

The U.S. Agency for International Development (USAID) (for civilian employees 

primarily covered under Title 5, United States Code) and the Federal Aviation Administration 

(FAA) had the most developed list of sexual misconduct categories. The Department of 

Education, by comparison, merely defines this area as “Inappropriate behavior of a sexual 

nature.” The FAA identifies 10 distinct categories of sexual misconduct including:

x Sexual teasing, jokes, remarks, questions;

x Suggestive looks or gestures of a sexual nature; and

x Threat or act of reprisal for refusal to provide sexual favors.

While most agencies have general prohibitions on using government resources for 

unauthorized purposes, not all agencies explicitly penalize the use of federal equipment to view 

or transmit sexually explicit materials and pornography. In addition, only five agencies 

 5 OFFICE OF INSPECTOR GEN., DEP’T OF JUSTICE, EVAL. AND INSP. DIV. 17-03, REVIEW OF THE HANDLING OF SEXUAL 

HARASSMENT AND MISCONDUCT ALLEGATIONS BY THE DEPARTMENT’S CIVIL DIVISION (2017), available at

https://oig.justice.gov/reports/2017/e1703.pdf [hereinafter “DOJ OIG 2017 Report”]. 6 Transcribed Interview with Mark Hatfield, former Acting Administrator, at the U.S. Transportation Sec. Admin.

(Feb. 23, 2017) [hereinafter “Hatfield Interview].
5

explicitly mentioned sexual assault or rape in their Tables of Penalties.

7

 And only two agencies 

list prostitution or consensual sexual misconduct.

8

Varying definitions for sexual misconduct, like these, make it difficult for the federal 

government to address this problem in a consistent and comprehensive manner.

4. Some agencies hold supervisors to higher standards, while others do not

Guidance for punishment of sexual misconduct varies from agency to agency. Some 

agencies differentiate punishments for supervisors and non-supervisors—some do not. For 

example, the Table of Penalties for the Department of the Interior (DOI) lists “Misconduct of a 

sexual nature that includes, but is not limited to, unwelcome sexual remarks, indecent 

comments/jokes, offensive sexual banter, unwanted sexual advances, or unwelcome physical 

touching” as an offense. According to the Table, for a first offense, front-line employees should 

receive a disciplinary action ranging from a written reprimand to removal; supervisors should 

receive a minimum five-day suspension.

Of the 14 agencies including sexual misconduct offenses in their Tables of Penalties, only 

four separate supervisor misconduct from that of other employees.9 The May DOJ OIG report 

on DOJ’s Civil Division found evidence of supervisory and high performing employees 

receiving less discipline than would otherwise be appropriate. In one instance, a deciding 

official commented a suspension “would unnecessarily deprive the government of [the senior 

official’s] litigating services.”10

5. Many agency Tables are significantly outdated

Agencies’ Tables of Penalties are in some cases decades old, and in need of an update.

x Three agencies—the Environmental Protection Agency (EPA), the Department of 

Commerce, and the Department of the Army—have not updated their Tables of 

Penalties since the 1980s.

x Two agencies—the Department of Agriculture (USDA) and the Department of the 

Air Force—have not updated their Tables of Penalties since the 1990s. 

x The oldest Table of Penalties is from the Department of Commerce, and was last 

updated in 1980.

 7 The agencies are the Departments of Agriculture, Energy, Health and Human Services (including the National 

Institutes of Health), Homeland Security (via the United States Secret Service), and Justice (via the ATF). 8 These agencies are the Departments of Homeland Security (via the United States Secret Service) and Justice (via 

the ATF, the DEA, the Federal Bureau of Investigation, and the USMS). 9 These agencies are the USAID (for civilian employees covered under Title 5, United States Code) and the 

Departments of the Interior, of Defense (via the Department of the Army and the National Guard Bureau), and of 

Transportation (via the FAA and the Maritime Administration).

10 DOJ OIG 2017 Report, supra note 5, at 17.
6

Sexual Misconduct in the Federal Government

The Committee has examined cases of sexual misconduct at several federal agencies. 

The fact patterns of such cases are often very different, which presents a challenge for agency 

officials responsible for defining and punishing the offending staff. Sexual misconduct must be 

recognized and addressed in a consistent, fair, and forceful manner. The overwhelming majority 

of federal employees refrain from sexual misconduct, but even a single instance can create a 

toxic work environment. 

Case Study #1: Attorney General Warns Employees Not to Use Prostitutes

Just days before a Committee hearing on sexual misconduct at the DOJ and its 

components, former Attorney General Eric Holder issued a memo to DOJ personnel stating 

employees are “prohibited from soliciting, procuring, or accepting commercial sex.”11 This

memo came on the heels of a 138-page report by the DOJ OIG chronicling sexual misconduct by 

DOJ personnel, including the solicitation of prostitutes. 

April 2015 Memo to DOJ Personnel from Attorney General Eric Holder

On April 14, 2015, the Committee held a hearing to examine the DOJ’s handling of 

sexual harassment and misconduct allegations.12 Members considered the DOJ OIG report that 

found systemic issues with the handling of sexual misconduct allegations, including allegations 

not being reported to headquarters (such as supervisors failing to report repeat offenders), and 

disciplinary actions that did not adequately address the solicitation of prostitutes in jurisdictions 

where the conduct is legal or tolerated.13 

Among other things, the report described disturbing allegations at DEA.

14 In 2009 and 

2010, DEA’s Office of Professional Responsibility (OPR) learned that over a period of years, 

 11 Memorandum from Att’y Gen. Eric Holder to Dep’t of Justice Personnel (Apr. 10, 2015). 12 DOJ IG: Handling of Sexual Harassment and Misconduct Allegations: Hearing Before the H. Comm. on 

Oversight and Gov’t Reform, 114th Cong. (2015) [hereinafter “DOJ IG: Handling of Sexual Harassment and 

Misconduct Allegations”]. 13 OFFICE OF INSPECTOR GEN., DEP’T OF JUSTICE, THE HANDLING OF SEXUAL HARASSMENT AND MISCONDUCT 

ALLEGATIONS BY THE DEPARTMENT’S LAW ENFORCEMENT COMPONENTS ii (2015), available at

http://www.justice.gov/oig/reports/2015/e1504.pdf [hereinafter “DOJ OIG 2015 Report”]. 14 Id. at 27.
7

DEA agents participated in “sex parties” in Colombia.15 These parties involved strippers and 

prostitutes who were paid for by drug cartels and arranged by a Colombian police commander 

who was attempting to curry favor with the agents.16 Ten DEA agents allegedly participated in 

the parties, which occurred in a U.S. government-rented apartment between 2001 and 2005.17 

During the parties, agents employed local police to guard them and watch over their firearms and 

property.

18 

DEA OPR did not refer this case to DEA’s Office of Security Programs (OSP) to identify 

potential security risks for DEA and to assess the subjects’ continued eligibility for a security 

clearances.

19 The assigned inspector identified and discussed the potential security risks with 

OPR headquarters management. The inspector explained to OPR management the fact that most 

of the “sex parties” occurred in government-leased quarters where agents’ laptops, BlackBerry 

devices, and other government-issued equipment were present created potential security risks for 

the DEA and for the agents who participated in the “parties”, potentially exposing them to 

extortion, blackmail, or coercion.20 OPR management officials interviewed by the OIG said they 

did not refer the allegations to OSP because OPR management did not believe the special agents’ 

conduct rose to the level of a security risk requiring a referral.21

In another incident in Colombia, a case involved loud parties held from 2005 to 2008 in 

DEA-leased housing where the resident special agent had received complaint letters from 

building management.22 Moreover, the hosting agent and another agent reportedly patronized 

prostitutes and visited brothels. Additionally, one of the agents allegedly assaulted a prostitute in 

a dispute over payment. The building management also informed local DEA management about 

these parties. The OIG report cites the OPR’s report and says prostitutes were at these parties. 

According to the OIG report, several of his local supervisors admonished the agent, but local 

managers determined not to refer the matter to OPR.

23

Ultimately, the agents involved received only minor suspensions (ranging from two to ten 

days). The Department did not try to fire them. In the words of the OIG, DOJ minimized cases 

of sexual misconduct, or swept them under the rug, by treating them as “local management 

issues.”24 

Ultimately, the OIG found the DOJ and its components did not have adequate Tables of 

Penalties in place to address instances of sexual misconduct. For example, the OIG found the 

 15 Kevin Johnson, Review: Cartel Funded Sex Parties of DEA Agents, USA TODAY (Mar. 26, 2015), available at

http://www.usatoday.com/story/news/nation/2015/03/26/dea-brothel-prostitutes/70482964. 16 Briefing from DEA to Comm. Staff (Apr. 7, 2015). 17 Id. 18 DOJ OIG 2015 Report, supra note 13, at 27. 19 Id. at 28. 20 Id. 21 Id. 22 Id. at 12. 23 Id. at 12–13. 24 Id. at iii.
8

DOJ and its components did not have Tables of Penalties in place that were sufficient to address 

the solicitation of prostitutes abroad, or sufficient notification systems in place to inform 

employees that such conduct is prohibited and would result in possible penalties.25 

The OIG also found the ATF Table did not contain specific offense categories to address 

sexual misconduct and sexual harassment. Additionally, it reported the Tables of Penalties for 

the DEA and the USMS did not provide adequate explanations of the types of behaviors 

warranting possible disciplinary action. The OIG wrote, “In some instances, these components 

applied general offense categories to misconduct more appropriately addressed by the specific 

sexual misconduct and sexual harassment offense categories in their offense tables.”26 Both 

agencies have since revised and updated their Tables. 

Case Study #2: Watching Pornography on the Job

In February 2017, a Washington, D.C.-based NBC affiliate used records received from 

Freedom of Information Act requests to reveal almost 100 cases of federal employees viewing 

pornography while on government computers across the federal government.27 These cases 

occurred over five years at the Departments of 

Commerce, Justice, Transportation, and the 

EPA.

28 

For example, in September 2013, the 

EPA’s Office of Environmental Information 

informed the EPA OIG an EPA employee had 

been viewing pornography at work.29 When OIG 

personnel went to investigate this employee at his 

office, OIG staff found him viewing pornography.30 The employee subsequently told the OIG he 

viewed pornography for an average of two to six hours a day while at work.31 The OIG also 

found the employee had about 20,000 adult pornographic images on his government-issued 

 25 Id. at iv. 26 Id. at iii. 27 Scott MacFarlane, Rick Yarborough & Jeff Piper, Dozens of Federal Employees Watched Abundance of Porn on 

the Job in Recent Years, NBC-4 I TEAM (Feb. 27, 2017), available at

http://www.nbcwashington.com/investigations/Dozens-of-Federal-Employees-Watched-Abundance-of-Porn-on-theJob-in-Recent-Years-414743293.html. 28 Id. 29 Is EPA Leadership Obstructing Its Own Inspector General?: Hearing Before the H. Comm. on Oversight & Gov’t 

Reform, 113th Cong. 22 (2014) (written statement of Allan Williams, Deputy Assistant Inspector General for 

Investigations, Office of Inspector General, Environmental Protection Agency).

30 Id. 31 EPA Mismanagement: Hearing Before the H. Comm. on Oversight & Gov’t Reform, 114th Cong. 16 (2015) 

(written statement of Patrick Sullivan, Assistant Inspector General for Investigations, Office of Inspector General, 

Environmental Protection Agency) [hereinafter “EPA Mismanagement”].

Over a five-year period, 100 cases were 

identified of federal employees viewing 

pornography while on government computers.

Source: NBC 4 I-Team
9

laptop.

32 The OIG referred the case to the U.S. Attorney’s Office, which declined to prosecute in 

March 2015.33

The EPA identified additional cases of employees viewing pornography at work. The 

EPA OIG investigated one EPA employee in the Office of the Administrator for watching 

pornography on his government-issued computer during the workday after an individual 

reportedly saw him viewing pornography at work in April 2014.34 The subsequent investigation 

found the employee viewed pornography at work for one to four hours a day and that 30–40 

percent of the electronic media on his computer was pornography.35 EPA referred the case to the 

U.S. Attorney’s Office, which declined to prosecute in March 2015.36

In 2010, the Securities and Exchange Commission (SEC) OIG provided Senator Charles 

Grassley a summary of investigations from the prior five years on employees using work 

computers to view pornography at the SEC.37 The summary detailed 33 cases, some involving 

senior employees.38 Despite this, the SEC does not have a Table of Penalties that explicitly 

addresses sexual misconduct.

The cases illustrated here are only a portion of the total instances of federal employees 

watching pornography at work, but each demonstrates that current prohibitions on unauthorized 

use of federal computers are not sufficient to prevent some employees from accessing 

pornographic materials while on duty. Agencies should penalize watching sexually explicit 

materials using government resources in their Tables of Penalties. In addition to myriad reasons 

this conduct is unacceptable, these instances raise cybersecurity concerns for agency computer 

systems. 

Case Study #3: Environmental Protection Agency

Despite concerning and consistent sexual misconduct identified at the EPA since at least 

2011, the agency has failed to update its Table of Penalties since 1985. Given the series of 

serious offenses identified at the EPA, the lack of action to strengthen internal guidance for 

disciplining sexual misconduct is stunning.

For example, the Committee obtained information related to the former head of the EPA 

Office of Homeland Security, Peter Jutro. Jutro allegedly harassed over a dozen women. He 

ultimately retired. 

 32 Id. at 17. 33 Id. 34 Id. 35 Id. 36 Id. at 18. 37 Report: SEC Staffers Watched Porn as Economy Crashed, CNN (Apr. 23, 2010), available at 

http://www.cnn.com/2010/POLITICS/04/23/sec.porn.

38 Id.
10

In April 2015, the Committee held a hearing into alleged acts of sexual harassment by 

Jutro.39 During the course of its investigation, the EPA OIG corroborated the sexual harassment 

claims of a 21-year-old female intern from the Smithsonian Institution and uncovered other 

allegations of Jutro’s sexual harassment of female EPA employees throughout his 31-year career 

at the agency.40 Senior officials at EPA may have known about Jutro’s misconduct prior to the 

incident involving the intern but did not take the necessary steps to corroborate that information 

when promoting him to the Acting Associate Administrator position in February 2014.41 The 

Deputy Chief of Staff in the Office of the Administrator failed to contact Jutro’s direct 

supervisor, who knew of the allegations against Jutro and verbally counseled him on multiple 

occasions for inappropriate behavior.42 When the EPA OIG attempted to interview Jutro a 

second time, Jutro retired, blocking the OIG from pursuing its investigation further.43

In another case occurring in March 2011, an EPA Region 5 research intern with the Great 

Lakes National Program Office (GLNPO) filed a report of sexual harassment against her 

research supervisor, Paul Bertram, Ph.D.44 She alleged Bertram inappropriately hugged her, 

rubbed her back, grabbed her, rubbed her hands, touched her knees, kissed her, made suggestive 

comments, and engaged in unsolicited physical and verbal contact.45 This harassment took place 

on numerous occasions spanning the three years she worked for the EPA.46

With the help of Deborah Lamberty, an American Federation of Government Employees 

Local 704 steward at the time, the intern filed a report with Paul Horvatin, Branch Chief of the 

GLNPO.47 Horvatin told the intern he was unsure how to proceed because nothing like this had 

happened before, although multiple accounts state he knew of previous harassment on the part of 

Bertram.

48 That same day the intern met with Horvatin and members of the Human Resources 

Department, who stated this was a first offense against Bertram and they would not consider any 

past harassment situations as relevant.

49 EPA told the intern Bertram would be notified any 

contact with her would be seen as retaliation.50 

 39 EPA Mismanagement, supra note 31, at 19. 40 Id. at 20. 41 Id. at 21. 42 Id. at 56 (oral statement of John Reeder, Deputy Chief of Staff, Environmental Protection Agency). 43 Id. at 22. 44 The intern was a GLNPO Research Fellow with Region 5 of the Environmental Protection Agency. Region 5 is 

the largest region of the EPA and encompasses Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, and 35 

tribal areas.

45 Telephone interview by Comm. staff with Intern (name withheld), Environmental Protection Agency, Region 5 

(July 28, 2015) [hereinafter “Telephone Interview with Intern”]. 46 Id. 47 EPA Mismanagement, Part II: Hearing Before the H. Comm. on Oversight & Gov’t Reform, 114th Cong. 123 

(2015) (written statement of Deborah Lamberty, Public Affairs Specialist, Environmental Protection Agency)

[hereinafter “EPA Mismanagement, Part II”]. 48 Summary of Sexual Harassment Allegations Against Paul Bertram and the Great Lakes National Program Office, 

Office of Civil Rights, Region 5, Envtl. Prot. Agency, Mar. 17, 2011. 49 Telephone Interview with Intern, supra note 45. 50 Id.
11

Sympathetic coworkers contacted Human Capital Officer Ross Tuttle, who stated no 

word of this situation reached him and he would take over the situation from that point 

forward.

51 Initially, Bertram faced minimal consequences, the extent of which ended with the 

relocation of his cubicle, thereby spreading the harm associated with this individual to other 

parts of the agency.52

In addition to Tuttle’s investigation, Equal Opportunity Specialist Officer Ronald Harris 

and then-Director of the Office of Civil Rights Carolyn Bohlen became aware of the sexual 

harassment allegations and began investigating. Working in conjunction with Tuttle, Harris and 

Bohlen discovered Bertram had been continuously engaging in the sexual harassment of female 

interns and coworkers in the office over the last seven years. They discovered Horvatin received 

several previous notifications about Bertram’s harassing behavior and yet failed to take any 

action.

53

Harris and Bohlen created a report on the extent of the sexual harassment, contacted EPA 

headquarters, and presented their findings to Bharat Mathur, Deputy Regional Administrator of 

Region 5.54 Mathur responded in an aggressive manner and began to yell and curse at the two 

employees.55 According to Bohlen, Mathur was furious the investigators contacted headquarters 

about the sexual harassment case, even though it was fully within the investigators’ authority to 

do so and expected of them according to protocol.56 EPA did not take any additional 

administrative action against Bertram or Horvatin. Ultimately, the EPA permitted Bertram to 

retire in late 2011 under a stipulation he would not work for the EPA in the future. 

Case Study #4: National Park Service

The National Park Service (NPS) has a history of sexual harassment and misconduct 

within its ranks. The Committee held two full committee hearings in 2016 examining incidents 

and the response by the DOI to findings of sexual harassment. 

On June 14, 2016, the Committee held a hearing on oversight of the NPS, in particular on 

DOI OIG findings of systemic sexual harassment in Grand Canyon National Park’s (GCRA) 

River District.57 The investigation followed complaints from 13 current and former NPS 

employees from the River District. They wrote to then-Secretary of the Interior Sally Jewell and 

submitted declarations describing incidents taking place over a period of 15 years, which they 

believed showed evidence of “discrimination, retaliation, and a sexually hostile work 

 51 Id. 52 EPA Mismanagement, Part II, supra note 47, at 90 (statement of Rep. Jason Chaffetz, Chairman). 53 Id. 54 Id. 55 Id. 56 Complaint of Carolyn D. Bohlen v. Gina McCarthy, Adm’r, Envtl. Prot. Agency, Chicago District Office, Equal 

Opportunity Commission, Case No. 2012-0003-R05, Aug. 5, 2013. 57 Oversight of the National Park Service: Hearing Before the H. Comm. on Oversight and Gov’t Reform, 114th

Cong. (2016).
12

environment.”58 The OIG investigation corroborated the claims of the complainants and found 

evidence of a long-term pattern of sexual harassment and a hostile work environment in the 

GRCA River District. It also identified an additional 22 other individuals who reported 

experiencing or witnessing sexual harassment and hostile work environments while working in 

the River District.59 

Although DOI currently has a Table of Penalties that includes suggested discipline for 

sexual misconduct, the discipline given out for that misconduct has been inconsistent. In 2016 at 

GCRA, the DOI OIG found that NPS re-hired an employee who resigned after facing discipline

for repeated sexual misconduct.60 In contrast, NPS did not renew employment of the 

complainants who sent the letter to Ms. Jewell after other employees filed complaints of sexual 

harassment against them. The complainants believed this was retaliation for filing previous 

sexual harassment claims against River District boatmen and the DOI OIG found that some NPS 

officials believed the investigations into those complaints were insufficient and incomplete.61 

The Committee held a second hearing on sexual harassment and misconduct at NPS on 

September 22, 2016, which featured testimony from whistleblowers detailing how NPS 

leadership failed to hold employees and supervisors that have committed acts accountable. The 

hearing addressed how misconduct often goes unaddressed, thus perpetuating an environment 

where inappropriate and unlawful behavior goes unchecked. 

During the hearing, witness Brian Healy from Grand Canyon National Park discussed the 

history of sexual harassment and misconduct at the park. He testified about a culture in which 

the behavior of perpetrators denigrated an already untenable work environment. Witness Kelly 

Martin from Yosemite National Park testified about the sexual harassment she both experienced 

firsthand and witnessed over the course of her career at NPS, which often went unaddressed by 

NPS officials. In one case, NPS allowed an employee who committed acts of voyeurism to 

switch parks in lieu of discipline; after the switch, he continued to engage in the same behavior at

the new park, and NPS subsequently moved him again.

62 He was able to retire after a full career 

at NPS. DOI’s Table of Penalties provides escalating penalties for misconduct of a sexual nature 

that recommends removal for a third offense.63 However, cases such as this show how NPS has 

a history of applying discipline inconsistently or not at all. 

 58 OFFICE OF INSPECTOR GEN., DEP’T OF THE INTERIOR, CASE NO. OI-PI-14-0695-I, REPORT OF INVESTIGATION 

MISCONDUCT IN THE GRAND CANYON RIVER DISTRICT (2015). 59 Id. 60 Id. 61 Id. 62 Examining Misconduct and Mismanagement at the National Park Service: Hearing Before the H. Comm. on 

Oversight and Gov’t Reform, 114th Cong. (2016). 63 DEP’T OF THE INTERIOR, DEPARTMENTAL MANUAL PART 370, CHAPTER 752, DISCIPLINE AND ADVERSE ACTIONS:

APPENDIX B – TABLE OF OFFENSES AND PENALTIES 24 (2006) [hereinafter “Dep’t of the Interior”].
13

Case Study #5: Forest Service 

In recent years, media reports and whistleblowers have described a hostile and 

discriminatory work environment for women at the U.S. Forest Service, as well as a history of 

sexual harassment and misconduct that often went unaddressed.64 

The Committee held a hearing on December 1, 2016, to examine sexual harassment and 

gender discrimination at the USDA and the Forest Service.65 The hearing examined patterns of 

sexual harassment and misconduct at the USDA, as well as the fear many employees had of 

retaliation for reporting these types of cases. It also addressed the agency’s response to 

harassment incidents and its efforts to improve.66 

At the hearing, two women testified publicly about the harassment they personally 

experienced while on the job at the Forest Service and how the agency’s subsequent 

investigation and discipline failed to address those responsible. Witness Denice Rice testified 

about her experiences dealing with sexual harassment on the job when her division chief was 

allowed to retire before facing discipline, despite his history of misconduct.

67 Further, the Forest 

Service re-hired this individual as a contractor and invited him to give a motivational speech to 

employees.68 In addition, witness Lesa Donnelly testified about her and others’ experiences with 

sexual misconduct at the Forest Service. Her testimony spoke about those who were too afraid 

to report harassment because they feared retaliation from the perpetrators.

69 These experiences 

indicate discipline at USDA has not been applied in a uniform manner.

Since this hearing, the Forest Service and USDA have adopted new investigative 

procedures for cases of misconduct and harassment.70 

Case Study #6: Department of Education

At a February 2, 2016 Committee hearing, the Department of Education Inspector 

General testified the Education OIG had conducted 10 investigations involving senior 

Department officials since 2010.

71

 64 Krista Langlois, Trial by fire, HIGH COUNTRY NEWS (May 30, 2016), available at 

http://www.hcn.org/issues/48.9/trial-by-fire. 65 Examining Sexual Harassment and Gender Discrimination at the U.S. Department of Agriculture: Hearing Before 

the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2016). 66 Id. 67 Id. 68 Id. (statement of Denice Rice, Prevention Technician, Eldorado National Forest, U.S. Forest Service). 69 Id. (statement of Lesa Donnelly, Vice President, USDA Coalition of Minority Employees). 70 Id. (statement of Lenise Lago, Deputy Chief, Business Operation, U.S. Forest Service). 71 Department of Education – Investigation of the CIO: Hearing Before the H. Comm. on Oversight and Gov’t 

Reform, 114th Cong. (2016) (written statement of Sandra D. Bruce, Deputy Inspector General, Office of the 

Inspector General, Department of Education). “Senior Department official” is defined as employees at the GS-15 

level or higher.
14

In one of these instances, a GS-15 employee allegedly sexually harassed three contract 

employees and lied to the supervisor when questioned about the allegation.72 The OIG 

investigation substantiated the allegation that the GS-15 employee made inappropriate sexual 

comments to contract employees under his operational control.

The OIG referred its findings to the DOJ and the Department of Education; however, the 

DOJ declined the matter for prosecution and the Department of Education suspended the GS-15 

employee for a mere 12 days. As detailed in the following section, the Department of 

Education’s discipline was not as severe in this matter as its Table of Penalties seems to provide 

for. Additionally, imprecise wording in its Table may allow for insufficient discipline of sexual 

misconduct at the agency. 

Conclusion

Federal employees deserve a safe work environment, free of predatory behavior and 

sexual harassment. A well-defined Table of Penalties can help provide that atmosphere. As 

detailed in the next section, a Table of Penalties is a tool to help ensure good working conditions 

that allow employees to work on behalf of the American people.

 72 Office of Inspector Gen., Dep’t. of Educ. Case Number 11-000486, Closed on 1/25/2012 [hereinafter “Dep’t of 

Educ. Office of Inspector General”].
15

Tables of Penalties at Federal Agencies

Agencies Have Discretion for Disciplining Employees Who Commit Sexual Misconduct

Agencies have the authority to discipline or remove employees who engage in 

misconduct under rules established by Congress in the Civil Service Reform Act of 1978.73 This 

includes misconduct while in an off-duty status, so long as a nexus exists between the off-duty 

misconduct and promoting the efficiency of the service, the standard necessary to remove a 

competitive service federal employee.74 Accordingly, some agencies have issued a Table of 

Penalties to provide guidance for appropriate discipline for employee misconduct.

75 

Specifically, a Table of Penalties provides a list of various misconduct that warrants discipline 

by the agency. Next to each offense listed in the Table of Penalties is suggested disciplinary 

actions for committing that offense. Suggested discipline can range from reprimand to removal 

from the civil service.76 

A Table of Penalties does not specify mandatory discipline to bind agency officials;

rather, the Table is a companion to the Douglas Factors.77 The Douglas Factors are twelve 

criteria that supervisors use to determine an appropriate penalty for misconduct.78 Two criteria 

relevant to the Table of Penalties are: 1) discipline consistency with penalties for other agency 

employees; and 2) consistency with formal Tables of Penalties (while allowing for some 

deviation in order to address other Douglas Factors).79 

Agencies not only have discretion in the depth and breadth of guidance issued to 

determine penalties for misconduct but also in establishing a definition of the misconduct action 

itself. Specific to the issue of sexual misconduct, some agencies opt for a detailed description of 

related infractions. For example, the FAA’s guidance describes some sexual misconduct 

categories as:

(1) On or off-duty conduct that results in a felony or misdemeanor conviction or 

guilty pleas for child abuse, sexual molestation, incest, statutory rape, or any 

other such crime or offense involving a minor victim, including those intended 

for coverage under 42 USC 5119(a) and/or 42 USC 13041, for which a penalty 

of imprisonment can be imposed, or when other reasonable causes exist to 

determine that the employee was involved in these activities and there is a 

nexus between the behavior and the employee’s position...;

 73 5 U.S.C. §7501 - §7514, §7541 - §7543 (1978). 74 JARED P. COLE, CONG. RESEARCH SERV., R44803, THE CIVIL SERVICE REFORM ACT: DUE PROCESS AND 

MISCONDUCT-RELATED ADVERSE ACTIONS 10 (2017) [hereinafter “Cole”]. 

75 A Table of Penalties is sometimes referred to as a “Table of Actions” or a “Table of Offenses and Penalties”. 76 See e.g. DEP’T OF AGRIC., DEPARTMENT PERSONNEL MANUAL CHAPTER 751: APPENDIX A – USDA GUIDE FOR 

DISCIPLINARY PENALTIES (1994). 77 See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) [hereinafter “Douglas v. Veterans 

Administration”]. 78 Id. 79 Id.
16

(2) Sexual teasing, jokes, remarks, questions that are inappropriate to the 

workplace; 

(3) Suggestive looks or gestures of a sexual nature;

(4) Sending letters, cards, e-mail, etc., or making telephone calls of an 

inappropriate or sexual nature;

(5) Pressure for dates;

(6) Posting, distributing, showing, or viewing sexually explicit materials in the 

workplace;

(7) Inappropriate physical touching of a non-erogenous area of another person 

(may include unsolicited hug, kiss, neck, or shoulder rub, etc.);

(8) Inappropriate physical touching of an erogenous area of another person (to 

include breast, buttocks, or pelvic area);

(9) Promise of, or suggested benefit in exchange for sexual favors; and

(10) Threat or act of reprisal for refusal to provide sexual favors.80

Conversely, the definition of sexual misconduct may be general and left to interpretation. For 

example, the Department of Education defines sexual misconduct solely as “inappropriate 

behavior of a sexual nature.”81 The Department of Veterans Affairs defines sexual misconduct 

solely as “sexual harassment.”82

A study by the U.S. Government Accountability Office (GAO) details problems arising

without standard categorizations of what constitutes sexual misconduct. The report found 

federal data-collecting efforts on sexual violence in the U.S. at-large suffer from the use of 

different terminologies and categorizations. GAO writes: 

These data collection efforts use 23 different terms to describe sexual violence. 

Data collection efforts also differ in how they categorize particular acts of sexual 

violence. For example, the same act of sexual violence could be categorized by

one data collection effort as “rape,” whereas it could be categorized by other efforts 

as “assault-sexual” or “nonconsensual sexual acts,” among other terms.83 

The danger that arises from this non-standardized approach is stark. According to GAO,

“Differences in data collection efforts may hinder the understanding of the occurrences of sexual 

violence.”84 Thus without a standardized characterization of sexual misconduct agencies may 

not even know when sexual misconduct has occurred. This hurts the federal government’s 

ability to deter and appropriately discipline sexual misconduct by federal employees.

 80 FED. AVIATION ADMIN., HUMAN RESOURCES OPERATING INSTRUCTIONS: TABLE OF PENALTIES 5, 10-12 (2015). 81 DEP’T OF EDUC., PERSONNEL MANUAL INSTRUCTION, DISCIPLINE AND ADVERSE ACTIONS: APPENDIX A – TABLE 

OF PENALTIES FOR STATED OFFENSES 3 (2003) [hereinafter “Dep’t of Educ.”]. 82 DEP’T OF VETERANS AFFAIRS, VA DIRECTIVE 5021, EMPLOYEE/MANAGEMENT RELATIONS: APPENDIX A – TABLE 

OF PENALTIES FOR TITLE 5 AND TITLE 38 EMPLOYEES II-A-3a (2013). 83 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-16-546, SEXUAL VIOLENCE DATA: ACTIONS NEEDED TO IMPROVE 

CLARITY AND ADDRESS DIFFERENCES ACROSS FEDERAL DATA COLLECTION EFFORTS Cover Page (2016). 84 Id.
17

A Table of Penalties Can Provide a Framework for Consistent Application of Disciplinary 

Penalties Throughout the Agency

Some agencies have established a Table of Penalties due to their broad discretion to 

define misconduct issues, prescribe penalties, and issue appropriate guidance. Since consistency 

to an applicable Table of Penalties is a component of the Douglas Factors, the agency’s use of a 

Table can help overcome scrutiny by the Merit Systems Protection Board if an employee decides 

to appeal an agency action for misconduct.85 

In 1983 the Office of Personnel Management (OPM), through the Federal Personnel 

Manual, identified many benefits of a Table of Penalties, including: 

x Providing a framework to assure consistent application of disciplinary penalties 

throughout the agency;

x Transmitting a clear message that misconduct has adverse consequences;

x Informing employees of their agency’s standards and expectations regarding conduct;

x Aiding supervisors in overcoming the natural human reluctance to confront the 

unpleasant circumstances inherent in disciplining employees by providing a standard 

minimum corrective action, and thus helping supervisors confront unwanted behavior 

before it grows into a major conduct problem;

x Ensuring all employees, including supervisors and management, are held to the same 

standard as other employees; and

x Assisting internal auditors and OPM personnel management evaluators in reviewing the 

effectiveness of the agency’s disciplinary program.86

The Federal Personnel Manual, having grown to over 10,000 pages, was discontinued in 1993 

because it was seen as too unwieldly and bureaucratic.87 Over the next year OPM converted

sections of the Manual into specific federal regulations.88 However, the portion of the Manual 

regarding Tables of Penalties was left uncodified in regulation, allowing agencies to implement 

their own directives.

 85 Cole, supra note 74, at 13. 86 This passage comes from the Federal Personnel Manual issued in 1983. In a memorandum titled “Suggested 

Table of Actions for Correcting Employee Misconduct,” OPM, in addition to providing a sample Table for agencies 

to consult when creating their own, laid out the benefits of a Table and urged each agency to publish one as a guide 

for correcting employee misconduct. U.S. OFFICE OF PERSONNEL MGMT., FPM LETTER 751-3, SUGGESTED TABLE 

OF ACTIONS FOR CORRECTING EMPLOYEE MISCONDUCT (1983), available at

https://archive.org/stream/federalperso36unit/federalperso36unit_djvu.txt. 87 Stephen Barr, U.S. Personnel Manual May End Up In Trash, WASH. POST (Dec. 20, 1993), available at 

https://www.washingtonpost.com/archive/politics/1993/12/20/us-personnel-manual-may-end-up-in-trash/e3330026-

0b5e-42d2-bbac-dec3b0f245f7/?utm_term=.65907529eb5a. 88 NAT’L P’SHIP FOR REINVENTING GOV’T, HELPING FEDERAL WORKERS CREATE A GOVERNMENT THAT WORKS 

BETTER AND COSTS LESS (1994), available at http://govinfo.library.unt.edu/npr/library/rtable/vol1no1.html.
18

Many Agencies Do Not Have a Table of Penalties That Address Sexual Misconduct

Twenty-six agencies provided information to the Committee about the status of a Table 

of Penalties used by the agency to address issues of misconduct. This information is below:

Chart 1: Agency Table of Penalties Status*

Agency Table of Penalties Status Year Last Updated

U.S. Agency for International 

Development

Has two agency-wide Tables, one for employees 

primarily covered under Title 5, United States 

Code, and one for foreign service officers, that 

both address forms of sexual misconduct.

2009 – Title 5

2016 – Foreign 

service

Consumer Financial Protection 

Bureau

No Table provided. N/A

Department of Agriculture Has agency-wide Table that addresses forms of 

sexual misconduct.

1994

Department of Commerce Has agency-wide Table that does not address 

specific forms of sexual misconduct.

1980**

Department of Defense No agency-wide Table, but Tables in use at Air 

Force, Army, Navy, and National Guard address 

forms of sexual misconduct. 

1981 – Army

1994 – Air Force

2003 – Navy

2010 – Ntl. Guard

Department of Education Has agency-wide Table that addresses forms of

sexual misconduct.

2003

Department of Energy Has agency-wide Table that addresses forms of 

sexual misconduct.

2015

Department of Health and Human 

Services

Has agency-wide Table and Table specific to the 

National Institutes of Health (NIH), which both 

address forms of sexual misconduct.

2009 – HHS

2014 – NIH 

Department of Homeland Security Has agency-wide Table, but the Table does not 

supersede Tables found at various components. 

Components with a Table that addresses sexual 

misconduct are the Coast Guard, Customs and 

Border Protection (CBP), Federal Law 

Enforcement Training Center (FLETC), 

Immigration and Customs Enforcement (ICE), 

National Protection and Programs Directorate

(NPPD), Transportation Security Administration

(TSA), U.S. Citizenship and Immigration Services

(USCIS), and U.S. Secret Service (USSS). The 

Federal Emergency Management Agency (FEMA)

does not have a component-specific Table.

N/A – FEMA 

2004 – CBP 

2006 – ICE

2009 – FLETC 

2010 – USCIS 

2011 – NPPD 

2014 – TSA 

2014 – USSS

2015 – Coast Guard

Department of Housing and Urban 

Development

Has agency-wide Table that does not address 

specific forms of sexual misconduct.

2000**

Department of the Interior Has agency-wide Table that addresses forms of 

sexual misconduct.

2006

Department of Justice No agency-wide Table, but Tables in use at the 

ATF, DEA, Federal Bureau of Investigation (FBI), 

and USMS address forms of sexual misconduct. 

The Bureau of Prisons (BOP) has a Table that does 

not address specific forms of sexual misconduct.

2012 – FBI 

2013 – BOP**

2015 – ATF 

2015 – DEA

2016 – USMS 

Department of Labor No Table provided. N/A

Department of State Has agency-wide Table for foreign service officers 

that addresses forms of sexual misconduct. There 

N/A – Title 5
19

is no comparable Table provided for employees 

primarily covered by Title 5, United States Code.

2016 – Foreign 

service

Department of Transportation No agency-wide Table, but Tables in use at the

FAA, Federal Highway Administration (FHWA), 

Federal Transit Administration (FTA), Maritime 

Administration (MARAD), Pipeline and 

Hazardous Materials Safety Administration

(PHSMA), and Saint Lawrence Seaway 

Development Corporation (SLSDC) address forms 

of sexual misconduct. The Federal Motor Carrier 

Safety Administration (FMCSA), Federal Railroad 

Administration (FRA), and National Highway 

Traffic Safety Administration (NHTSA) did not 

provide Tables.

N/A – FMCSA 

N/A – FRA 

N/A – NHTSA

2006 – MARAD

2007 – FTA 

2008 – SLSDC 

2013 – PHMSA 

2015 – FAA 

2016 – FHWA 

Department of the Treasury No Table provided. N/A

Department of Veterans Affairs Has agency-wide Table that addresses forms of 

sexual misconduct.

2014

Environmental Protection Agency Has agency-wide Table that addresses forms of 

sexual misconduct.

1985

General Services Administration Has agency-wide Table that does not address 

specific forms of sexual misconduct.

2013**

National Aeronautics and Space 

Administration

Has agency-wide Table that does not address 

specific forms of sexual misconduct. 

2008**

Nuclear Regulatory Commission No Table provided. N/A

National Science Foundation No Table provided. N/A

Office of Personnel Management No Table provided. N/A

Securities and Exchange 

Commission

Has agency-wide Table that does not address 

specific forms of sexual misconduct.

2014**

Small Business Administration Has agency-wide Table that addresses forms of 

sexual misconduct.

2001

Social Security Administration Has agency-wide Table that does not address 

specific forms of sexual misconduct.

2009**

* Almost all data comes from agency documents submitted pursuant to former Chairman Jason Chaffetz’s March 

18, 2016 letter to 26 federal agencies requesting all policies, procedures, directives, and/or guidance for taking 

corrective, disciplinary, and adverse actions against civilian employees (including Senior Executives) in response to 

misconduct or poor performance, including Tables of Penalties.89

** Denotes an agency with a Table that does not specifically address forms of sexual misconduct. Many of these 

agencies have catch-all penalties for items not otherwise listed. For example, agencies generally have some 

provision providing for discipline if an employee engages in criminal, dishonest, infamous, or notoriously 

disgraceful conduct. While an agency may not have sexual misconduct-specific penalties, the catch-all guidance 

provides flexibility in some cases. In addition, every Table had recommended disciplinary actions for 

discrimination based on, among other things, sex. Forms of sexual harassment can be penalized under this category 

pursuant to 29 CFR § 1604.11, but it is unclear the extent to which sexual misconduct related issues are included 

under sex discrimination. Finally, while only components at the DOJ explicitly mention penalties for retaliation in 

connection with a sexual harassment claim, every agency with a Table has a penalty for general retaliation arising 

from the filing of any complaint.

 89 See, e.g., Letter from Rep. Jason Chaffetz, Chairman, and Rep. Elijah E. Cummings, Ranking Member, H. Comm. 

on Oversight and Government Reform, to Ernest Moniz, Sec’y, Dep’t of Energy (Mar. 18, 2016). The Department 

of Homeland Security created and implemented an agency-wide Table after its official submission to the 

Committee. That information was incorporated into this report.
20

As the preceding chart indicates, eight agencies do not have a Table of Penalties covering 

some part of their components and career employees. This includes OPM, which told the 

Committee it has a number of procedures it follows for addressing misconduct contained in 

collective bargaining agreements and its human resource manual. 90 However, OPM states it 

does not “possess, nor rely upon [a Table of Penalties] in addressing misconduct.”91 

Without a Table of Penalties, agencies run the risk of inconsistent, arbitrary, and 

inadequate responses to findings of misconduct. A May 2017 DOJ OIG report found serious 

issues in DOJ’s response to allegations of sexual misconduct at the Civil Division, a component 

of the agency not covered by a Table of Penalties. The OIG report stated:

[T]he Civil Division does not have its own internal policies governing the handling 

of sexual harassment and misconduct allegations, opting instead to follow broad 

federal law and regulations and Department policies. While we found that the Civil 

Division’s handling of allegations confirmed to most applicable regulations and 

policies, it was not consistent among cases or with the Department’s zero tolerance 

policy... 

Finally, while our sample of 11 cases is relatively small, we found reason for 

concern that the penalties and discipline imposed for misconduct varied and were 

less severe for the Civil Division’s high-performing employees. The Civil Division 

does not have penalty tables or guidelines for handling substantiated cases of sexual 

harassment and misconduct, which we believe has affected the Civil Division’s 

ability to impose consistent penalties and enforce the Department’s zero tolerance 

policy. We determined that in general the penalties for substantiated allegations, 

including ones we found to be serious, were nothing more than written reprimands, 

title changes, and reassignment for cases in which the subjects of the allegations 

were supervisory/senior attorneys. Moreover, we found that Civil Division 

employees received performance awards while they were the subject of an ongoing 

sexual harassment or misconduct investigation or while disciplinary actions were 

in effect.92

The OIG issued four recommendations, including 1) the development of consistent penalty 

guidelines for substantiated allegations of sexual harassment and misconduct, and 2) policy 

guidance regarding performance awards given to, and public recognition of, an employee who is 

under investigation or has recently been disciplined for misconduct, including sexual 

harassment.93 

 90 Letter from Jason Levine, Dir. of Cong., Legis., and Intergovernmental Affairs, U.S. Office of Personnel Mgmt., 

to Rep. Jason Chaffetz, Chairman, H. Comm. on Oversight and Gov’t Reform (June 17, 2016). 91 Id. 92 DOJ OIG 2017 Report, supra note 5, at ii. 93 Id. at 23.
21

Seven Agencies Have a Table of Penalties Which Does Not Specifically Address Sexual 

Misconduct; 14 Agencies Have a Table of Penalties that Address Sexual Misconduct, but the 

Tables May Be Inadequate

General characteristics of Tables of Penalties in use at the seven agencies that do not 

specifically mention sexual misconduct and the fourteen agencies that do mention it include: 

x Common offenses, such as drug and alcohol offenses, appeared in each agency’s Table of 

Penalties.

94 

x Tables addressed misconduct that may be of particular concern to an individual agency. 

For example, the U.S. Bureau of Prisons of DOJ lists a penalty for the “Physical abuse of 

an inmate” that is not relevant for all agencies.95

x Generally, agencies have chosen to list only those disciplinary actions that become a 

matter of record in the employee’s official personnel folder.96 A few agencies, such as 

the Federal Bureau of Investigation (FBI), listed actions like oral reprimands.97 Such 

reprimands largely go undocumented. 

x Most agencies surveyed provide progressively tougher discipline for second and 

sometimes third misconduct violations.98 The FBI, TSA, and U.S. Secret Service provide 

a mitigated penalty range, a normal penalty range, and an aggravated penalty range.99

x All agencies with a Table of Penalties apply it to competitive service employees who

operate under removal procedures in Subchapter II of Chapter 75 of Title 5, United States 

Code.100 Agencies may apply it to career Senior Executive Service (SES) employees, but 

since agencies may not suspend a career SES employee for less than 15 days under 

Subchapter V of Chapter 75 of Title 5, recommended guidance in penalties must be 

adjusted accordingly.

101 For employees not subject to Chapter 75 disciplinary

procedures, such as Schedule C political appointees and non-career SES employees, 

agencies have the discretion of whether or not to refer to their Table of Penalties for 

 94 See e.g. U.S. GEN. SERVICES ADMIN., CPO 9751.1 MAINTAINING DISCIPLINE: APPENDIX 1 – PENALTY GUIDES 13 

(2013) [hereinafter “U.S. General Services Admin.”]. 95 U.S. BUREAU OF PRISONS, 3420.11 STANDARDS OF EMPLOYEE CONDUCT: ATTACHMENT A – STANDARD 

SCHEDULE OF DISCIPLINARY OFFENSES AND PENALTIES 27 (2013). 96 See e.g. U.S. General Services Admin., supra note 93. 97 U.S. FED. BUREAU OF INV., OFFENSE CODES AND PENALTY GUIDELINES GOVERNING FBI’S INTERNAL 

DISCIPLINARY PROCESS 6 (2012) [hereinafter “U.S. Federal Bureau of Investigation”]. 98 See e.g. U.S. General Services Admin., supra note 93. 99 See e.g. U.S. Federal Bureau of Investigation, supra note 96. 100 See e.g. DEP’T OF THE INTERIOR, DEPARTMENTAL MANUAL PART 370, CHAPTER 752, DISCIPLINE AND ADVERSE 

ACTIONS 1-2 (2006). 101 See e.g. Federal Bureau of Investigation, supra note 96.
22

guidance on discipline.102 These types of employees serve at the pleasure of the 

employing authority (i.e. the President or Cabinet secretary) and so can be disciplined 

and removed for misconduct without regard to formal removal procedures.103 

Whereas having a Table of Penalties helps position the seven agencies to be more 

consistent in penalties for misconduct than those agencies that do not have a Table, the failure to 

address sexual misconduct in the Table leaves the agency vulnerable when these situations arise. 

Fourteen agencies had a Table of Penalties to apply either agency-wide or at certain 

components specifically addressing sexual misconduct. In concept, these agencies are able to 

provide consistent penalties for similar misconduct events and provide a strong defense on

appeal. However, the agency Tables of Penalties may be inadequate for guiding agency 

decision-makers for any of the following four reasons: 1) penalties are too broad; 2) the 

definition of “sexual misconduct” is not consistent, 3) supervisors are not always held to a higher 

standard, and 4) Tables are not current.

1. Penalties Are Too Broad.

Agencies’ Tables of Penalties identified excessively broad penalties and a listed range of 

recommended penalties for one infraction of all available disciplinary options. Several Tables of 

Penalties contain the recommended action of a written reprimand to removal for one infraction’s 

first offense.104 For example, the Navy’s Table of Penalties lists “sexual harassment” as a form 

of misconduct fit for disciplinary action. However, the suggested penalty for the first offense is 

reprimand to removal.105 The Department of Energy lists “inappropriate teasing, remarks, jokes, 

gestures, communications, and touching including, but not limited to, those of a sexual nature” as 

a form of misconduct fit for disciplinary action, but the suggested penalty for the first offense is

also reprimand to removal.106 No guidance is provided to officials charged with determining 

discipline allowing for confusion in the disciplinary process. 

Testimony before the Committee highlights the vulnerabilities associated with broad 

recommended penalties. A former TSA Acting Administrator blamed broad recommended 

penalties in a Table for his lack of disciplinary action in a misconduct case at TSA, testifying:

But the flaw in it was it was still very broad. You could have a manager at 

an airport who, you know, did some violation, and you’d look at your table 

of penalties and it would say written reprimand, which is -- or verbal 

reprimand -- or verbal counseling to 2 week suspension. That’s a huge 

 102 Telephone Briefing by Janel Fitzhugh, Acting Dir. of Cong., Legis., and Intergovernmental Affairs, U.S. Office 

of Personnel Mgmt., with Comm. staff (Mar. 29, 2017). 103 DEP’T OF HOMELAND SEC., GUIDE FOR EXITING POLITICAL APPOINTEES 2 (2008), available at

https://www.dhs.gov/sites/default/files/publications/priv-09-346-set-2.pdf. 104 The list of agencies which had this form of broad suggested penalty range are the USAID; the Departments of 

Defense (Navy), Education, Energy, Homeland Security (USCIS, FLETC, ICE), Interior, Justice (DEA, USMS, 

ATF), Transportation (FHWA, FTA, SLSDC), Veterans Affairs; and the EPA. 105 DEP’T OF THE NAVY, CIVILIAN HUMAN RESOURCES MANUAL, SUBCHAPTER 752, DISCIPLINARY ACTIONS:

APPENDIX B – SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES 30 (2003). 106 DEP’T OF ENERGY, DOE O 333.1X DOE GUIDE, TABLE OF OFFENSES AND PENALTIES: APPENDIX B 4 (2015).
23

range. I mean, that really goes from what is essentially not a disciplinary 

action to a potentially career ending disciplinary action. 

And so you take that a step further and, let’s say, you decide what you’re 

going to do at the local level with that manager, now, that goes through an 

appeals process or it goes through a validation process. And, again, the 

looseness in the range, you suddenly get people from headquarters 

questioning why you gave them that punishment, that was too weak, that 

was too heavy. 

And it was -- you know, this was sort of the constant -- one of those 

personnel constant roiling distractions in terms of managing people in the 

field, and I found that it was not all that different at headquarters.107

2. Sexual Misconduct Is Not Consistently Defined.

One factor in the use of a broad range of suggested penalties for an offense is the level of 

detail in the definition of the offense. Agencies with less clarity and more vagueness regarding 

what constitutes sexual misconduct tend to broaden the range of suggested penalties. The ATF, 

for instance, penalizes “employee engagement in sexual misconduct while on- or off-duty, 

including sexual harassment, unwanted sexual advances, sexual battery, and sexual assault.”108 

Almost all cases of sexual misconduct at the agency would fall under this heading. 

The Department of Education uses one catch-all category for sexual misconduct within 

its Table of Penalties. The categorization reads, “Inappropriate behavior of a sexual nature.” 

The recommended discipline for a violation on the first offense is reprimand to removal, a 14-

day suspension to removal on the second offense, and removal on the third offense. 109 The 

Department of Education makes no distinction between types of sexual misconduct violations by 

its employees. This lack of distinction provides little guidance to officials who must then decide 

the appropriate discipline. 

Imprecise Tables of Penalties are problematic for federal employees. For example, a

senior official harassed three separate victims at the Department of Education.

110 If the 

Department had a precise Table of Penalties, it may have deterred the bad behavior. The gravity 

of the employee’s actions might have been addressed sooner if Department officials could see 

those types of actions explicitly penalized. The USAID’s Table for civilian employees, on the 

other hand, includes a penalty for “unwelcome sexual teasing, jokes, remarks, questions, looks, 

or gestures by a supervisor.”111 

Agencies with clear Tables of Penalties which include multiple types of offenses for 

sexual misconduct can narrow the range of suggested penalties, since the number of cases 

 107 Hatfield Interview, supra note 6. 108 ATF, ATF GUIDE FOR PENALTIES AND OFFENSES 9 (2015) [hereinafter ATF]. 109 Dep’t of Educ., supra note 81. 110 Dep’t of Educ. Office of Inspector General, supra note 72. 111 U.S. AGENCY FOR INT’L DEVELOPMENT, TABLE OF OFFENSES AND PENALTIES 6 (2009).
24

considered under each type of offense is smaller and more alike. The FAA and the USAID

generally provided the most comprehensive Tables. The FAA in particular has a specific penalty 

range, based on the type of misconduct.

When considered together, the broad range of penalties and vagueness surrounding what 

constitutes sexual misconduct poses a danger to the fair application of discipline within agencies. 

Considering the Douglas Factors may mitigate the danger. However, two of the Douglas Factors 

are “consistency of the penalty with those imposed upon other employees for the same or similar 

offenses” and “consistency of the penalty with any applicable agency table of penalties.”112 

While adherence to the Douglas Factors can help mitigate some of the risks of inconsistent 

discipline application across an agency, they become less effective without an in-depth Table of

Penalties to inform deciding officials on whether a contemplated penalty is consistent with past 

precedent for similar misconduct. In the case agencies that have no Tables of Penalties and rely 

solely on the Douglas Factors during discipline adjudication the risk of inconsistency greatly 

increases since two of the key factors are absent.

The differences in defining sexual misconduct not only affect internal agency 

deliberations on appropriate discipline but also hurt attempts to understand the prevalence of 

sexual misconduct across the federal government. Agencies with comprehensive Tables of 

Penalties provide more detail on the types of issues arising within the agency based on the 

detailed sexual misconduct offense used to discipline the employee. Agencies with a single 

disciplinary category for sexual misconduct, such as the Department of Education and ATF, do 

not provide such information through their Tables since misconduct as varied as watching 

pornography while at work, pressuring another employee for sexual favors, or sexual assault fall 

under a single heading.

Such discrepancies lead to differing disciplinary recommendations for sexual misconduct 

among federal agencies, and even among components of cabinet departments where no 

department-wide Table of Penalties exists. DOJ provides a good example. Committee staff 

reviewed the Tables of Penalties for various DOJ components and discovered the ATF, the DEA, 

and the USMS all recommend different penalties for soliciting or engaging in prostitution. Only 

the DEA now requires immediate removal for an employee’s first offense.113 The ATF allows 

for a three-day suspension, while the USMS allows for a five-day suspension.114 These 

variances could be explained by OPM’s 1983 decision to allow agencies to create their own 

Tables of Penalties and DOJ’s subsequent decision to delegate discipline authority to its 

individual components. 

 112 Douglas v. Veterans Administration, supra note 77. 113 U.S. DRUG ENFORCEMENT AGENCY, TR-15-02 PERSONNEL MANUAL, DEA GUIDE FOR DISCIPLINARY OFFENSES 

AND PENALTIES: APPENDIX 2735A 10 (2015). 114 ATF, supra note 107, at 8; and U.S. MARSHALS SERV., USMS GUIDANCE, TABLE OF DISCIPLINARY OFFENSES 

AND PENALTIES 4 (2016).
25

3. Supervisors Are Not Always Held to A Higher Standard.

The third potential inadequacy of agency Tables is not all agencies hold supervisors to a

higher standard. For example, the DOI Table of Penalties lists “[m]isconduct of a sexual nature 

that includes, but is not limited to, unwelcome sexual remarks, indecent comments/jokes, 

offensive sexual banter, unwanted sexual advances, or unwelcome physical touching” as an 

offense.115 According to the Table, for a first offense front-line employees should receive a 

disciplinary action ranging from a written reprimand to removal. Supervisors should receive a 

minimum of a five-day suspension.116 The Department of the Army, the National Guard Bureau, 

the DOI, the FAA, the Maritime Administration, and USAID-civilian employees were the only 

agencies or components to specify discipline for supervisors. 

A cautionary tale can be found in the May 2017 DOJ OIG report on sexual misconduct at 

the DOJ Civil Division. While the Civil Division does not have a Table of Penalties, the same 

principle of inconsistent disciplinary standards for supervisory employees applies. The report 

stated:

A GS-15 attorney who occupied a senior, supervisory position in the division was 

alleged to have made sexually charged and offensive comments and to have groped 

the breasts and buttocks of two female trial attorneys without their consent during 

an office happy hour. This senior official had previously received a written 

reprimand and diminution of title for sending emails of a sexual nature to 

coworkers. Immediately after the second misconduct incident, the senior official 

began a scheduled detail to another Department component, apparently with no 

notice to the component of the misconduct allegations. After branch supervisors 

and OMP/HR investigated the allegations, the senior official’s formal discipline 

included a written reprimand for inappropriate touching, a further change in title, 

and relief from supervisory duties. He received no suspension or loss in pay or 

grade, despite the prior misconduct and the seriousness of the second incident, 

with the deciding official commenting that a suspension “would unnecessarily 

deprive the government of [the senior official’s] litigating services.” The Civil 

Division transferred the senior attorney to a different office within the Civil 

Division upon his return from the detail.117

4. Some Tables of Penalties Are Not Current.

Some agencies have not updated their Tables of Penalties in decades. The oldest Table 

was at the Department of Commerce (1980), followed by the Department of the Army (1981) 

and the EPA (1985). When Tables fall out of date and out of use, agency decision-makers are at 

risk of being accused of arbitrary and selective behavior when they do reference the Tables.

 115 Dep’t of the Interior, supra note 63, at 24, 28. 116 Id. 117 DOJ OIG 2017 Report, supra note 5, at 17 (emphasis added).
26

For example, according to testimony before the Committee, the EPA reprimanded a 

senior employee at least three times before the employee sexually harassed a female intern.

118 

Whereas the EPA’s Table of Penalties recommended a 30-day suspension to removal for an 

employee’s third offense of sexual harassment,

119 EPA instead just moved the cubicle further 

from the intern.120 In a July 2015 hearing, then-EPA Administrator Gina McCarthy testified 

EPA management and employees were in the process of creating the agency’s very first 

procedure for addressing allegations of workplace harassment.121 Although this is a good first 

step, it demonstrates that there is a need for current, clear, and consistently applied guidance for 

dealing with misconduct not only at EPA but also throughout the government. 

Work Remains in Addressing Employee Sexual Misconduct

The federal government should be encouraging the best and brightest to enter public 

service, and providing federal employees with a protected working environment is paramount to 

doing so. The current system of Tables of Penalties across the federal government is inadequate 

to help provide this environment. 

 118 EPA Mismanagement, Part II, supra note 47 at 59 (statement of Ronald Harris, Equal Opportunity Specialist 

Officer, Environmental Protection Agency).

119 ENVIRONMENTAL PROTECTION AGENCY, EPA ORDER 3110.6B, ADVERSE ACTIONS: APPENDIX – GUIDANCE ON 

CORRECTIVE DISCIPLINE A-13 (1985). 120 EPA Mismanagement, Part II, supra note 47, at 58 (statement of Ronald Harris, Equal Opportunity Specialist 

Officer, Environmental Protection Agency).

121 Id. at 83 (statement of Gina McCarthy, Administrator, Environmental Protection Agency).
27

RECOMMENDATIONS

For Agencies

1. Agencies without a Table of Penalties should create one. 

2. Agencies should update their Tables of Penalties regularly to ensure up-to-date 

information is considered.

3. The 2015 DOJ OIG report found a lack of coordination between the internal affairs 

offices that receive sexual misconduct allegations and the offices responsible for ensuring 

that employees meet the requirements to hold security clearances.122 Agencies should 

implement policies to ensure timely information sharing between those offices so that 

those holding security clearances do not become a risk to national security.

4. The 2017 DOJ OIG report found the Department’s Civil Division:

[M]aintain[ed] paper records of the case files of the allegations it handles, 

which [the OIG] found to be insufficient... Additionally, the Civil Division 

lack[ed] consistent criteria for reporting sexual harassment and misconduct 

allegations to [human resources], including no minimum standard for 

preserving information to effectively maintain records and track allegations 

over time... [Furthermore, the OIG] found that the Civil Division lacks a 

consistent standard for reporting such cases to the OIG as well as to Civil 

Division leadership.123 

All agencies should ensure cases of sexual misconduct are properly documented and 

tracked using updated computer technology, set minimum standards for documentation 

that is necessary for allegations of sexual misconduct, and review existing policies to 

ensure proper compliance with the Inspector General Act of 1978 and federal regulations.

5. Agencies should ensure supervisors and employees are aware of applicable agency 

Tables to increase adherence to recommended discipline.

For the Office of Personnel Management

6. OPM, in coordination with the Chief Human Capital Officers (CHCO) Council, should 

begin to provide guidance on all aspects of Tables of Penalties to agencies in order to 

begin the process of standardizing them government-wide. 

7. OPM, in coordination with the CHCO Council, should create a nature of offenses list for 

sexual misconduct that is detailed and comprehensive to the extent practical. The nature 

of offenses list should break up offenses and refrain from packing too many punishable 

actions in one offense. 

 122 DOJ OIG 2015 Report, supra note 12, at 28. 123 DOJ OIG 2017 Report, supra note 5, at i.
28

8. OPM, in coordination with the CHCO Council, should create a range of recommended 

penalties that is concise and narrow for cases of sexual misconduct. OPM should 

distribute the recommended penalties broadly.
29

APPENDIX A – Federal Agencies Queried 

The following is a list of Executive Branch departments and agencies from which the Committee 

requested Tables of Penalties:

1. U.S. Agency for International Development

2. Consumer Financial Protection Bureau

3. Department of Agriculture

4. Department of Commerce

5. Department of Defense

6. Department of Education

7. Department of Energy

8. Department of Health and Human Services

9. Department of Homeland Security

10. Department of Housing and Urban Development

11. Department of the Interior

12. Department of Justice

13. Department of Labor

14. Department of State

15. Department of Transportation

16. Department of the Treasury

17. Department of Veterans Affairs

18. Environmental Protection Agency

19. General Services Administration

20. National Aeronautics and Space Administration

21. National Science Foundation

22. Nuclear Regulatory Commission

23. Office of Personnel Management

24. Securities and Exchange Commission

25. Small Business Administration

26. Social Security Administration
30

APPENDIX B – Federal Agencies and Their 

Components Sorted by Table Status

In a March 18, 2016 letter to Executive Branch agencies, the Committee initiated a 

review into the decision-making processes currently in use at federal agencies to evaluate and 

discipline poor performance and misconduct among the federal civil service, including the 

Senior Executive Service. As part of this broader effort, Committee majority staff reviewed 

guidelines established by agencies that inform discipline for employees who engage in sexual 

misconduct.

The 26 agency responses can be classified into three categories: those with sexual 

misconduct-related penalties in their Table of Penalties, those without sexual misconduct-related 

penalties in their Table, and those without a Table of Penalties. 

Departments and agencies can be classified in multiple categories due to having (or not 

having) Tables of Penalties for different components within the department or agency.

Therefore, the number of departments and agencies below exceeds 26. For example, the 

Department of Justice uses Tables of Penalties at five of its components. However, the Bureau 

of Prisons Table of Penalties does not list penalties for sexual misconduct-related issues. 

Therefore, the Department of Justice belongs in both the first and second category. 

All Tables of Penalties are applicable agency-wide unless otherwise noted.

Category 1—Agencies and Components with a Table

While each of the below agencies mentioned sexual misconduct within their Tables of 

Penalties, what constitutes sexual misconduct, the level of specification, and recommended 

penalties varies widely. The agencies in the first category are:

1. U.S. Agency for International Development (differing Tables of Penalties for foreign 

service employees and other civilian employees primarily covered by Title 5, United 

States Code)

a. Title 5 Civilian Employees

b. Foreign Service Employees

2. Department of Agriculture

3. Department of Defense (no agency-wide Table of Penalties, but Tables of Penalties at the 

component level)

a. Department of the Air Force

b. Department of the Army

c. Department of the Navy

d. National Guard Bureau

4. Department of Education

5. Department of Energy

6. Department of Health and Human Services

a. National Institutes of Health (in addition to the HHS agency-wide Table of 

Penalties)
31

7. Department of Homeland Security124

a. Coast Guard 

b. Customs and Border Protection

c. Federal Law Enforcement Training Center

d. Immigration and Customs Enforcement

e. National Protection and Programs Directorate

f. Transportation Security Administration

g. U.S. Citizenship and Immigration Services

h. U.S. Secret Service

8. Department of the Interior

9. Department of Justice (no agency-wide Table of Penalties, but Tables of Penalties at the 

component level)

a. Bureau of Alcohol, Tobacco, Firearms, and Explosives

b. Drug Enforcement Administration

c. Federal Bureau of Investigation

d. U.S. Marshals Service

10. Department of State (Table is used for foreign service employees only)

a. Foreign Service Employees

11. Department of Transportation (no agency-wide Table of Penalties, but Tables of Penalties

at the component level)

a. Federal Aviation Administration

b. Federal Highway Administration

c. Federal Transit Administration

d. Maritime Administration

e. Pipeline and Hazardous Materials Safety Administration

f. Saint Lawrence Seaway Development Corporation

12. Department of Veterans Affairs

13. Environmental Protection Agency

14. Small Business Administration

Category 2—Agencies and Components with a Table, but Which Do Not Address Specific 

Forms of Sexual Misconduct 

As previously noted, many of the agencies that do not address specific forms of sexual 

misconduct such as sexual harassment and viewing pornography while on a federal computer

have catchall penalties for items not otherwise listed. For example, agencies generally have 

some provision providing for discipline if an employee engages in criminal, dishonest, infamous, 

or notoriously disgraceful conduct. While an agency may not have sexual misconduct specific 

penalties, it is reasonable to assume that the catchall guidance could be applicable for an 

employee that commits sexual misconduct. 

 124 The Department of Homeland Security has an agency-wide Table. However, almost all of its components have 

created their own Table. In such case, the component Table supersedes the agency-wide Table. The Federal 

Emergency Management Agency is the only major component that does not have its own component Table. It is, 

therefore, covered under the agency-wide Table.
32

In addition, every Table of Penalties had recommended disciplinary actions for 

discrimination based on, among other things, sex. Forms of sexual harassment can be penalized 

under this category pursuant to the definition of sex discrimination found at 29 CFR § 1604.11, 

but it is unclear the extent to which sexual misconduct related issues are included under sex 

discrimination. Finally, while only the Department of Justice explicitly mentions penalties for 

retaliation in connection with a sexual harassment claim, every agency with a Table of Penalties 

has a penalty for general retaliation arising from the filing of any complaint. The agencies in the 

second category are:

1. Department of Commerce

2. Department of Housing and Urban Development

3. Department of Justice (no agency-wide Table of Penalties, but Tables of Penalties at the 

component level)

a. Bureau of Prisons

4. General Services Administration

5. National Aeronautics and Space Administration

6. Securities and Exchange Commission

7. Social Security Administration

Category 3 – Agencies and Components with No Table

These agencies do not have a Table to provide guidance for misconduct of any nature. 

1. Consumer Financial Protection Bureau

2. Department of Labor

3. Department of State (non-foreign service employees only)

a. Title 5 Civilian Employees

4. Department of Transportation (no agency-wide Table of Penalties, but Tables of Penalties 

at the component level)

a. Federal Motor Carrier Safety Administration

b. Federal Railroad Administration

c. National Highway Traffic Safety Administration

5. Department of the Treasury

6. Nuclear Regulatory Commission

7. National Science Foundation

8. Office of Personnel Management