Office of the Inspector General Office of the Inspector General 

U.S. Department of Justice U.S. Department of Justice 

Review of the Handling of Sexual 

Harassment and Misconduct 

Allegations by the Department’s Civil 

Division 

Evaluation and Inspections Division 17-03 May 2017 
 

 

EXECUTIVE SUMMARY 

When federal employees engage in sexual harassment and misconduct, it 

affects their agency’s reputation and credibility and can undermine the agency’s 

mission. Sexual harassment and misconduct also may create a hostile work 

environment, which lowers productivity and morale. Due to the seriousness of this 

issue, the U.S. Department of Justice (Department, DOJ) has a zero tolerance 

policy for harassment, including sexual harassment. As a DOJ component, the Civil 

Division is required to uphold Department policies as well as federal laws and 

regulations governing the handling and discipline of misconduct incidents. 

In July 2015, the Office of the Inspector General (OIG) completed a 

preliminary review in response to a complaint alleging that the Civil Division’s Office 

of Immigration Litigation, District Court Section, had failed to properly discipline an 

attorney who had committed sexual misconduct. The OIG’s preliminary 

investigation found that the Civil Division had imposed discipline on the attorney 

pursuant to its processes and therefore did not substantiate the allegation; 

however, the preliminary review revealed broader concerns regarding the discipline 

imposed by the Civil Division in incidents of sexual harassment and misconduct, as 

well as the Civil Division’s failure to report alleged misconduct to the OIG. 

Following these concerns, the OIG initiated this review to examine how the Civil 

Division responds to sexual harassment and misconduct allegations and to assess 

whether penalties adequately and consistently address substantiated misconduct. 

Results in Brief 

Although there were few reported allegations of sexual harassment and 

misconduct in the Civil Division from fiscal year (FY) 2011 through the first two 

quarters of FY 2016, we identified significant weaknesses in the Civil Division’s 

tracking, reporting, and investigating of the 11 sexual harassment and misconduct 

allegations that we reviewed, as well as inconsistencies among penalties imposed 

for substantiated allegations. We believe that because each allegation of sexual 

harassment or misconduct requires consideration, the Civil Division must address 

these weaknesses and provide adequate guidance to ensure that it acts consistently 

with the Department’s zero tolerance policy. 

The Civil Division Office of Management Programs’ Human Resources 

(OMP/HR) staff maintains paper records of the case files of the allegations it 

handles, which we found to be insufficient. Additionally, the Civil Division lacks 

consistent criteria for reporting sexual harassment and misconduct allegations to 

OMP/HR, including no minimum standard for preserving information to effectively 

maintain records and track allegations over time, other than the OMP/HR Officer’s 

recollection. We initially received nine case files from OMP/HR related to allegations 

of sexual harassment and misconduct, but our interviews with Civil Division Branch 

Directors identified two additional allegations. In some of the cases we received, 

we were unable to reconstruct the facts, investigation, or adjudication because the 

information contained in the case files was inadequate. Furthermore, OMP/HR staff 

i 
 

 

 

could not articulate how the Civil Division would be able to manage its case file 

system in the absence of the HR Officer and her memory of events. 

Prior to the OIG’s 2015 investigation, the Civil Division had not referred a 

single sexual harassment or misconduct allegation case to the OIG, including two 

cases raising potential criminal concerns, as the Inspector General Act of 1978 and 

federal regulations require. While the Civil Division currently has an informal 

practice of forwarding all allegations of sexual harassment and misconduct to the 

OIG, we found that the Civil Division lacks a consistent standard for reporting such 

cases to the OIG as well as to Civil Division leadership. 

In addition, the 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 conformed to most 

applicable regulations and policies, it was not consistent among cases or with the 

Department’s zero tolerance policy.1 Civil Division officials and managers we spoke 

with stated that investigations are conducted at the branch management level, with 

OMP/HR or the OMP Executive Director providing assistance. However, we found 

three allegations that were handled without informing or consulting OMP/HR. 

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. 

1 In response to a working draft of this report, the Civil Division stated its concerns regarding 

what it described as the OIG’s overly broad use of the term “zero tolerance.” The Civil Division noted 

that the Department and other agencies have stated on numerous occasions that they have a zero 

tolerance policy in the sense that they will not tolerate their employees engaging in sexual 

harassment, that they will take whatever measures are necessary to stop such misconduct when they 

are informed of it, and that they will make sure that appropriate remedies are available for the victims 

of such misconduct. The Civil Division also stated that this does not mean that the agency will apply a 

zero tolerance approach to taking discipline for every substantiated allegation; it said that 

management will undertake an individualized assessment in each case and reach a disciplinary 

determination after considering all the relevant factors, as required by law. However, as we note 

throughout our report, we believe that a zero tolerance policy means that all substantiated allegations 

should be addressed consistently and appropriately, which we found did not occur during the period of 

our review. 

ii 
 

Recommendations 

We make four recommendations to the Civil Division to better and more 

completely track allegations of sexual harassment and misconduct, to ensure 

appropriate handling and reporting of allegations, and to provide guidance for 

consistent discipline in response to substantiated allegations. We believe that these 

recommendations will help the Civil Division better enforce the Department’s zero 

tolerance policy on sexual harassment. 

iii 
 

 

TABLE OF CONTENTS 

INTRODUCTION ........................................................................................1
 

Department Policies and Regulations on Sexual Harassment and 

Civil Division Tracking of Sexual Harassment and Misconduct
 

Allegations Is Inadequate, which Risks Compromising the
 

Penalties Imposed for Substantiated Allegations of Sexual 

Harassment and Misconduct May Not Be Consistent with 

Background ....................................................................................1
 

The Civil Division .............................................................................1
 

Misconduct .....................................................................................2
 

Previous Reviews on Sexual Harassment and Misconduct .......................5
 

Purpose and Scope of the OIG’s Review ..............................................5
 

RESULTS OF THE REVIEW ..........................................................................6
 

Department’s Zero Tolerance Policy ....................................................6
 

Upholding the Department’s Zero Tolerance Policy ..............................15
 

CONCLUSION AND RECOMMENDATIONS .................................................... 22
 

Conclusion....................................................................................22
 

Recommendations .........................................................................23
 

APPENDIX 1: METHODOLOGY OF THE OIG REVIEW ...................................24
 

Standards .....................................................................................24
 

Interviews ....................................................................................24
 

Case File Review and Data Analysis ..................................................24
 

Policy and Document Review ........................................................... 25
 

APPENDIX 2: DOJ POLICIES ON PREVENTION OF HARASSMENT IN THE 

WORKPLACE .....................................................................26
 

APPENDIX 3: DOUGLAS FACTORS...........................................................36 

APPENDIX 4: THE CIVIL DIVISION'S RESPONSE TO THE DRAFT REPORT ......37 

APPENDIX 5: OIG ANALYSIS OF THE CIVIL DIVISION'S RESPONSE .............40 

iv 
 

 

 

 

INTRODUCTION 

Background 

Federal employees are held to high standards of integrity and conduct. 

When federal employees engage in sexual harassment and misconduct, it affects 

their agency’s reputation and credibility and can undermine the agency’s mission. 

Sexual harassment and misconduct may also create a hostile work environment, 

which lowers productivity and morale. The emotional stress for individuals who 

experience sexual harassment may affect their physical and mental health and may 

even have a financial impact if the victims leave their jobs, take leave without pay 

to avoid the harassment, or suffer retaliation for rebuffing their harasser. 

The U.S. Department of Justice’s (Department, DOJ) zero tolerance policy 

seeks to maintain a work environment that is free from any form of harassment, 

including sexual harassment. To enforce this policy, the Department treats sexual 

harassment as misconduct and requires management to respond to allegations of 

sexual harassment promptly and effectively to eliminate such behaviors from the 

workplace.2 

In August 2014, the Office of the Inspector General (OIG) received a 

complaint alleging that the DOJ Civil Division’s Office of Immigration Litigation 

(OIL), District Court Section, had failed to properly discipline an attorney who had 

committed sexual misconduct. The complainants further alleged a larger pattern of 

inadequate responses to complaints of sexual harassment and misconduct within 

OIL. In July 2015, the OIG completed a preliminary review of findings that did not 

substantiate the allegations that OIL’s management had failed to take timely 

disciplinary action or that there was a larger pattern of failing to respond to 

incidents of sexual misconduct. However, the OIG did have concerns regarding the 

sufficiency of the discipline imposed and the Civil Division’s failure to report the 

alleged misconduct to the OIG as Department regulations require. The OIG 

initiated this review to further assess how the Civil Division responds to sexual 

harassment and misconduct allegations made against its employees, as well as 

whether penalties adequately and consistently address substantiated misconduct. 

The Civil Division 

The Civil Division represents the United States, its departments and 

agencies, members of Congress, Cabinet Officers, and other federal employees in 

any civil or criminal matter within its scope of responsibility. Civil Division litigation 

falls generally into the following categories involving: 

 national policies, 

2 See Janet Reno, Attorney General, memorandum to Department of Justice Employees, 

Prevention of Sexual Harassment in the Workplace, June 29, 1993, as amended by Janet Reno, 

Attorney General, memorandum to Heads of All Components, Prevention of Sexual Harassment, 

December 14, 1998, and reaffirmed by DOJ Policy Memorandum 2015-04, Prevention of Harassment 

in the Workplace (October 9, 2015) (all in Appendix 2). 

1 
 

	 cases so massive and lengthy that they would overwhelm the resources of 

any individual field office, 

	 filings in national or foreign courts, 

	 multiple jurisdictions, and 

	 removal of illegal aliens. 

The Civil Division’s legal practice includes both defensive and affirmative litigation. 

Each year, thousands of lawsuits are filed against the government as a result of its 

policies, laws, domestic and foreign operations, and entitlement programs, as well 

as law enforcement initiatives, military actions, and counterterrorism efforts. In 

affirmative litigation, the Civil Division brings suits on behalf of the United States, 

primarily to recoup money lost through fraud, loan defaults, and abuse of federal 

funds. In addition, Civil Division attorneys advise other DOJ components and client 

agencies to ensure that the government's litigation position is unified, consistent, 

and successful. 

An Assistant Attorney General oversees the Civil Division, which has 

approximately 1,400 employees, the majority of whom are attorneys. The Civil 

Division comprises six subcomponents, each led by a Deputy Assistant Attorney 

General (DAAG): 

1. Appellate Staff, 

2. Commercial Litigation Branch, 

3. Federal Programs Branch, 

4. OIL, 

5. Consumer Protection Branch, and 

6. Torts Branch. 

Management in each subcomponent includes one or more Directors, who report to 

the DAAG, as well as Deputy Directors and/or Assistant Directors. In addition, the 

Office of Management Programs reports directly to the Assistant Attorney General 

and includes the human resources staff for the Civil Division. 

Department Policies and Regulations on Sexual Harassment and 

Misconduct 

The legal framework governing the discipline of federal employees, including 

Civil Division employees, is contained in 5 U.S.C. § 7501 et seq., 5 C.F.R. Part 752, 

and established case law. Agencies may impose discipline when an employee’s 

misconduct interferes with the agency’s ability to carry out its mission.3 Additional 

policies and procedures directing how the Department handles discipline and 

adverse actions are described in Human Resources Order DOJ 1200.1 (Order). This 

Order establishes the roles and responsibilities of management officials seeking to 

3 5 U.S.C. § 7501 et seq. 

2 
 

 

 

 

 

impose formal discipline and describes the mechanics of the inquiry, notice, 

adjudication, and grievance process applicable to most Department employees.4 

The Order also outlines the rights of employees who appeal their discipline in 

administrative proceedings before the Merit Systems Protection Board or mediate 

the decision in binding arbitration.5 Finally, the Order describes the record 

retention and training requirements applicable to the disciplinary system. 

The Department’s policy is to maintain a zero tolerance work environment 

that is free from harassment, including sexual harassment, in all DOJ components. 

Although the policy does not provide guidance from a disciplinary standpoint, in the 

enforcement of this policy harassing conduct does not need to be repeated or 

severe enough to be legally actionable before the Department will address it. 

Department management must take steps to prevent harassment from occurring, 

respond to allegations of harassment quickly, and take appropriate corrective action 

against any employee who engages in harassment. Finally, the policy provides that 

no employee should be subjected to retaliation for reporting or participating in an 

inquiry about harassment (see Appendix 2 for more information). 

Although the laws, regulations, and policy described above provide the 

general framework for the Department’s disciplinary system, it is within each 

component's discretion to tailor its system to meet its organizational needs. The 

Civil Division, however, does not have internal policies, procedures, or guidelines 

for reporting, investigating, and adjudicating allegations of sexual misconduct; 

rather, it relies on federal law and regulations, as well as the Department’s policy 

guidelines. We further discuss the Civil Division’s lack of internal policies and 

procedures in the Results of the Review. 

Definition of Sexual Harassment and Misconduct 

According to the Department’s policy, sexual harassment includes any 

unwelcome verbal or physical conduct of a sexual nature that affects an individual’s 

work performance or any employment decisions, such as hiring, firing, promotions, 

awards, transfers, or disciplinary actions that result from submission to or rejection 

of unwelcome sexual conduct.6 According to the Justice Management Division’s 

Office of Equal Employment Opportunity (JMD EEO), sexual harassment can also be 

any activity that creates an intimidating, hostile, or offensive work environment for 

4 Human Resources DOJ Order 1200.1, Part 3, Section B.3. All Department employees are 

covered by this policy, except for those specifically excluded by law or order, such as employees 

excluded from procedural protections under 5 U.S.C. § 7511. Employees covered by collective 

bargaining agreements may be subject to additional procedures. See https://www.justice.gov/jmd/hrorder-doj12001-part-3-laboremployee-relations (accessed April 27, 2017). 

5 The Merit Systems Protection Board is an independent, quasi-judicial agency in the 

Executive Branch that was established by Reorganization Plan No. 2 of 1978, which was codified by 

the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111. The Civil Service Reform Act 

authorized the Merit Systems Protection Board to hear appeals of various agency decisions, most of 

which are appeals from agencies’ adverse employment actions. 

6 Reno, memorandum to Department of Justice Employees; Reno, memorandum to All 

Department Components; DOJ Policy Memorandum 2015-04. 

3 
 

 

 

 

 

 

 

 

members of one sex, whether such activity is carried out by a supervisor or by a 

coworker. This could include such workplace conduct as displaying “pinup” 

calendars or sexually demeaning pictures, telling sexually oriented jokes, making 

sexually offensive remarks, engaging in unwanted sexual teasing, pressuring 

another employee for a date, making sexual advances, or unwelcome touching. 

The Disciplinary Process 

Federal agencies have a duty to maintain an orderly and productive work 

environment to ensure that their missions are carried out in an efficient and 

effective manner.7 To maintain the confidence and trust of the public, federal 

agencies establish disciplinary systems that address and correct employee 

misconduct and communicate acceptable behavior to employees. The system 

should be implemented uniformly and result in consistent and reasonable 

disciplinary decisions. 

The Order states that each component has different management 

requirements that must be addressed in determining appropriate penalties for 

offenses. This Order grants each component the authority to establish, but does not 

require the establishment of its own Schedule of Disciplinary Offenses and Penalties 

and states that management shall consider penalties imposed for similar offenses 

within individual work units when determining appropriate disciplinary measures. 

Penalties imposed for substantiated allegations can be informal, minor corrective 

actions, including oral admonishments or letters of admonishment. Formal corrective 

actions include disciplinary actions, such as a written reprimand or a suspension of 

14 days or less, and adverse actions, such as a suspension over 14 days, removal 

from federal service, or reduction in pay or grade.8 Generally, in adjudicating formal 

discipline, a designated deciding official weighs all the evidence offered through a 

Department proposal letter, the subject employee’s written reply, and considers the 

Douglas Factors to make the ultimate decision about the penalty (see Appendix 3).9 

Requirement to Report Misconduct Allegations to the OIG 

The Department’s regulations require its components to report to the OIG 

“any allegations of criminal or serious administrative misconduct on the part of a 

Department employee.”10 Given the volume of allegations and the OIG’s limited 

7 5 U.S.C. § 2301. 

8 Formal reprimands are included in an employee’s official personnel file for up to 3 years for 

non-bargaining unit employees or 2 years for bargaining unit employees. Documentation of adverse 

actions becomes a permanent record and remains in an employee’s official personnel file unless 

canceled by a third party or settlement agreement. 

9 Under civil service law, there are 12 factors, known as the Douglas Factors, which should be 

considered in determining the appropriateness of a disciplinary penalty. See Douglas v. Veterans 

Administration, 5 M.S.P.B. 313 (1981). 

10 28 C.F.R. § 45.11 (2006). See also 28 C.F.R. § 0.29c (2001), which states “(a) Reporting to the 

OIG. Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by 

Department employees shall be reported to the OIG, or to a supervisor or a Department component's internal 

affairs office for referral to the OIG, except as provided in paragraph (b) of this section.” 

4 
 

resources, the OIG is unable to handle all of the misconduct allegations that it 

receives. Accordingly, when the OIG receives an allegation of misconduct, it 

determines whether the matter warrants independent investigation by the OIG or 

should be referred back to the component for its handling. Allegations of 

misconduct involving Department attorneys and law enforcement personnel that 

relate to the exercise of their authority to investigate, litigate, or provide legal 

advice are, by statute, excluded from the OIG’s jurisdiction. Such allegations are 

referred to the Department’s Office of Professional Responsibility. 

Previous Reviews on Sexual Harassment and Misconduct 

In February 2014, the OIG issued a report on the consistency, timeliness, and 

outcomes of the four phases of the discipline process of the U.S. Attorney’s Offices and 

the Executive Office for United States Attorneys.11 This report examined the following: 

(1) the reporting of alleged misconduct, (2) the investigation or inquiry into the alleged 

misconduct, (3) the adjudication of misconduct, and (4) the implementation of 

discipline. While the OIG found that some aspects of the U.S. Attorney’s Offices and 

Executive Office for United States Attorneys’ discipline system worked well, 

improvements were needed in several critical areas, which included maintaining an 

updated table of case precedents with penalties for sexual harassment. 

In March 2015, the OIG issued a report that assessed how the Department’s 

four law enforcement components (the Bureau of Alcohol, Tobacco, Firearms and 

Explosives; the Drug Enforcement Administration; the Federal Bureau of Investigation; 

and the U.S. Marshals Service) respond to sexual harassment and misconduct 

allegations made against their employees.12 This report examined the nature, 

frequency, reporting, investigation, and adjudication of such allegations. Although the 

OIG found that there were relatively few reported allegations of sexual harassment 

and misconduct in these components, the handling of these allegations revealed some 

significant systemic issues with the components’ disciplinary and security processes, 

such as inconsistent reporting of allegations, investigation criteria, and penalties, 

requiring corrective action across the four law enforcement components. 

Purpose and Scope of the OIG’s Review 

The OIG assessed how the Department’s Civil Division responded to 

allegations of sexual harassment and misconduct made against its employees. We 

focused our review on allegations of sexual harassment and misconduct from fiscal 

year (FY) 2011 through FY 2015 and the first two quarters of FY 2016. We 

reviewed federal law, regulations, and DOJ policies and interviewed the Civil 

Division’s Office of Management Programs staff, JMD EEO staff, and the Deputy 

Assistant Attorney General and Director(s) from each Civil Division branch. We also 

reviewed case files involving sexual harassment or misconduct provided by Civil 

Division’s Human Resources staff. See Appendix 1 for more information. 

11 DOJ OIG, Review of the USAOs’ and EOUSA’s Disciplinary Process, Evaluation and 

Inspections Report I-2014-001 (February 2014). 

12 DOJ OIG, The Handling of Sexual Harassment and Misconduct Allegations by the 

Department’s Law Enforcement Components, Evaluation and Inspections Report 15-04 (March 2015). 

5 
 

 

 

 

 

 

 

 

RESULTS OF THE REVIEW 

Civil Division Tracking of Sexual Harassment and Misconduct Allegations Is 

Inadequate, which Risks Compromising the Department’s Zero Tolerance 

Policy 

The Civil Division Office of Management Programs’ Human Resources 

(OMP/HR) told us that its staff maintains case files on all substantiated or 

unsubstantiated allegations of misconduct reported to it. However, the OIG 

identified one harassment allegation during this review that was not reported to 

OMP/HR, and further found that the Civil Division does not have guidance to ensure 

that all sexual harassment and misconduct allegations are reported to OMP/HR. 

Additionally, for cases reported to OMP/HR, the Civil Division’s case file system 

cannot accurately determine the number of allegations or verify basic facts, 

including final outcomes. The Civil Division also lacks a consistent standard for 

timely reporting sexual harassment and misconduct allegations to the OIG, and 

Civil Division leadership is not made aware of all substantiated allegations. As a 

result, neither the Civil Division nor the OIG can accurately determine the total 

number of sexual harassment and misconduct allegations or whether the Civil 

Division has addressed all allegations appropriately, which risks compromising the 

Department’s zero tolerance policy. 

The Civil Division Cannot Accurately Demonstrate the Number of Sexual 

Harassment and Misconduct Allegations or Verify Basic Facts, Timelines for 

Processing Allegations, or Final Outcomes 

We found that the Civil Division does not consistently and effectively track, 

record, or maintain adequate information on allegations of sexual harassment and 

misconduct. Interviews with Civil Division Branch Directors yielded two examples 

of allegations that the OMP/HR did not initially provide to us in response to our 

request for all sexual harassment and misconduct allegations.13 In addition, 

OMP/HR maintains case files on employees with disciplinary concerns to 

memorialize and track all allegations of misconduct, whether substantiated or 

unsubstantiated.14 We found that case files are maintained as paper records with 

no other mechanism except the OMP/HR Officer’s recollection to track allegations of 

misconduct. Also, the Civil Division has no specific guidance on when and how an 

allegation of sexual harassment or misconduct is to be memorialized or what such 

13 We initially received nine case files from OMP/HR related to allegations of sexual 

harassment and misconduct, but our interviews with Civil Division Branch Directors identified two 

additional allegations for which OMP/HR had not provided files. We did not receive one of these case 

files until we informed OMP/HR of the Branch Director’s comment, and the other case was handled at 

the branch level and never reported to OMP/HR. 

14 We use the term “case file” to indicate one incident with an allegation of sexual harassment 

or misconduct, without distinguishing whether the allegation became a case. In addition, each 

incident may have more than one allegation. 

6 
 

 

 

 

 

documentation should contain. As a result, Civil Division management may be 

limited in its ability to find precedents in its case file system. 

Inconsistent Reporting of Allegations 

We found that documents and information about sexual harassment and 

misconduct allegations exist in different locations and OMP/HR’s case files do not 

contain complete information concerning all allegations of misconduct among Civil 

Division personnel. Civil Division Branch Directors told us that supervisors 

sometimes maintain their own records concerning allegations of misconduct that 

they consider to be within their discretion.15 For example, the record of one of the 

two allegations that was not included in the Civil Division’s initial response to the 

OIG’s request for all sexual harassment and misconduct allegations was maintained 

at the branch level and not with OMP/HR because the Branch Director did not send 

the allegation to OMP/HR. The relevant Branch Director explained to us that he and 

his deputies decided to deal with the issue purely within their office because it did 

not seem to rise to the level of an “allegation of misconduct.” Multiple supervisors 

told us and demonstrated with documentation that they kept emails, 

correspondence, and notes from meetings concerning alleged misconduct on an 

informal basis to maintain a record for management’s decision making in the 

future.16 

No Civil Division supervisor could identify training or guidance on how to 

distinguish between allegations that fall solely within their discretion and those that 

must be reported to OMP/HR. When we asked about training or guidance to 

address these types of cases, one Branch Director said, “Check with [the HR 

Officer], that is really all we’ve got.” Although the HR Officer stated that she was 

confident that Civil Division supervisors were reporting all allegations of sexual 

harassment and misconduct to OMP/HR, the HR Officer also told us that a Branch 

Director may deem a matter to be minor and handle it themselves, as there is no 

Civil Division policy requiring a supervisor to report all allegations to OMP/HR. 

When we asked about the possibility of confusion among Civil Division supervisors 

as to whether to report allegations to OMP/HR, the current Civil Division Executive 

Director explained that the Civil Division entrusts a certain amount of discretion to 

supervisors in what to report “because there are a lot of grey areas” and “that is 

the nature of sexual harassment.”17 This official further explained that Civil Division 

supervisors are trained and provided with policies, adding that, “They know what 

the law and rules are.” Moreover, when we asked how the Civil Division interprets 

the Department’s zero tolerance policy, this official stated that “when someone says 

zero tolerance, you really can’t enforce that ... it’s good to say it and it’s good for 

15 The term “supervisor” encompasses Branch Directors and Assistant Directors. 

16 In our review of the case files, we did not find evidence that these documents were 

provided to OMP/HR. 

17 The current Executive Director started in this role in February 2016. Given the HR Officer’s 

unique role, experience, and knowledge of the process within the Civil Division, we did not find it 

necessary to interview the prior Executive Director, who retired in January 2016. 

7 
 

 

 

 

 

awareness, but when it comes down to analyzing employee misconduct, thought 

has to be given.” 

This inconsistent understanding of when to report allegations raises 

concerns, as our review found three cases in which Civil Division supervisors knew 

of and acted to address a sexual misconduct allegation without first reporting the 

allegation to OMP/HR. In at least one of these cases, a Civil Division employee 

repeated the same inappropriate behavior following branch management’s first 

attempt to address an allegation independent of OMP/HR. Based on these cases, 

we question whether the Civil Division’s reporting pattern demonstrates compliance 

with the Department’s zero tolerance policy that the “Department will not wait for a 

pattern of offensive conduct to emerge before addressing claims of harassment.” 

Ineffective Tracking of Allegations and Case Files 

Although we did not identify any applicable federal law or regulation or 

Department policy specifying how allegations should be tracked, we found the Civil 

Division’s tracking system, which was based on the HR Officer’s memory, to be 

insufficient. The HR Officer explained that this system had proven effective due to 

the low number of allegations and case files relating to sexual harassment and 

misconduct.18 However, in response to our request for all sexual harassment and 

misconduct case files, the Civil Division failed to produce one case file related to an 

allegation that a Branch Director later brought to our attention.19 The HR Officer 

produced the omitted case file and explained that she “didn’t recall this [allegation] 

to be a sexual harassment issue.” After examining the details of the allegation, the 

HR Officer agreed that it was a sexual harassment matter. OMP/HR staff could not 

articulate how the Civil Division would track sexual harassment and misconduct 

allegations through the case file system without the HR Officer’s memory and 

oversight. We believe that overreliance on a single individual to remember all 

allegations risks compromising the case file system should that individual be unable 

to perform her duties for any reason.20 

We also found that OMP/HR maintains case files as paper records, filed by 

each employee’s last name. In our review of sexual harassment and misconduct 

allegations, we found eight case files filed under the name of the alleged 

perpetrator of the offensive conduct. In one unsubstantiated case, the records 

were maintained under the name of the alleged victim. In another case, in which 

we could not determine whether the Civil Division had substantiated the allegation, 

OMP/HR maintained the record file under the name of the alleged victim. All of the 

case files lacked any marking or mechanism that could be used to identify the case 

file as one related to allegations of sexual harassment or misconduct. Because of 

18 We identified within the scope of this review 10 case files and 1 allegation without an 

OMP/HR case file. 

19 As noted earlier, 1 of the 11 allegations never became an OMP/HR case file because the 

Branch Director did not send the allegation to OMP/HR. 

20 During the course of this review, the Civil Division informed the OIG that the HR Officer 

retired on December 30, 2016. 

8 
 

 

 

 

 

 

the limited case identifiers and inconsistent filing practice, we do not believe that 

this case file tracking method is conducive to identifying all incidents of past 

misconduct, which impedes the Civil Division’s ability to identify patterns of similar 

misconduct from different individuals over time and to discover possible systemic 

concerns within the Civil Division. When discussing the HR file system with us, the 

HR Officer emphasized that the file system’s main purpose was to assist in her 

personal recollection of cases and their details. 

For comparison, we found that the Justice Management Division’s Equal 

Employment Opportunity (JMD EEO) staff uses an electronic case tracking system 

that records several fields for each case they maintain.21 JMD EEO staff can sort 

cases by field categories to identify misconduct by type, time frame, or specific 

individual.22 The OMP Executive Director spoke favorably of using such an 

electronic tracking system; but she told us that costs, along with the relatively 

small size of the Civil Division, rendered procuring such a system infeasible from a 

financial perspective. Also, the use of any electronic system raised significant 

concerns about security. However, with JMD considering the acquisition of such an 

electronic personnel file tracking system, the OMP Executive Director said she 

thought that the Civil Division could “tag along” in upgrading to electronic tracking. 

Incomplete Case Files 

We reviewed 10 case files that the Civil Division deemed to be within the 

scope of the review.23 Our examination of these case files identified no apparent 

minimum documentation or required content, no consistent or standardized entries, 

and no uniform characteristics. The majority of the case files consisted of emails 

between OMP/HR and various parties related to the allegations. In some case files, 

those emails allowed reconstruction of the facts, investigation, and adjudication of 

the case, as well as the timeliness of processing the case within OMP/HR and its 

outcome. However, reconstruction of the remaining case files was not possible. In 

two cases, the OIG assessment of the written records in the case files could not 

even establish whether or not OMP/HR had substantiated the allegations. Table 1 

below reflects our examination of the case files and their content. 

21 JMD EEO uses ICOMPLAINT, a case management system specifically for tracking and 

managing EEO complaints and cases. 

22 The Executive Office for United States Attorneys and the Department’s law enforcement 

components maintain similar electronic tracking systems, as reported in previous OIG reviews. 

23 As noted earlier, we learned of one allegation without a case file within the scope of this 

review. 

9 
Table 1 

OMP/HR Employee Relations Case Files 

Case 

File 

Type of Sexual 

Harassment or 

Misconduct 

Alleged 

Timeline of 

Reporting, 

Investigation, 

and 

Adjudication 

OIG Assessment 

of the Written 

Record 

Disciplinary 

Outcome 

1 Stalking Discernable Unsubstantiated by 

Civil Division None 

2 Inappropriate verbal 

comments Discernable Substantiated by Civil Division 

Written letter of 

admonishment 

3 Arrested for public sexual 

conduct while off duty Discernable Substantiated by Civil Division Resigned 

4 

Inappropriate comments to, 

and subsequent resignation 

of, staff member 

Unclear Unable to determine Oral counseling 

5 Peeping on multiple 

occasions Unclear 

Substantiated but 

deemed not sexual 

misconduct by Civil 

Division 

Oral counseling 

6 Inappropriate touching and 

comments Discernable Substantiated by 

Civil Division 

Title change, 

written reprimand, 

and transfer 

within the Civil 

Division 

7 

Inappropriate relationship 

with subordinate, computer 

hacking, and catfishing * 

Discernable Substantiated by 

Civil Division 

Title change, 

written reprimand, 

transfer within the 

Civil Division, and 

separation of 

subject and victim 

8 

Inappropriate email 

communications and 

unprofessional behavior 

Discernable Substantiated by 

Civil Division 

Written 

reprimand, 

10 days of 

administrative 

leave 

9 

Demeaning and 

inappropriate comments 

over email for several years 

Unclear Substantiated by 

Civil Division 

Title change and 

written reprimand 

(later removed 

from records) 

10 Inappropriate relationship/ 

stalking Unclear Unable to determine Unable to 

determine 

* “Catfishing” is the deceptive practice of luring someone into a relationship by means of a fictional 

online persona. 

Source: OIG analysis of OMP/HR case files 

The disorganized nature of case file content made it difficult to reconstruct 

how OMP/HR had processed the cases. We found that case files with a 

substantiated allegation of misconduct consistently contained a written reprimand 

letter that assisted in reconstructing the events leading to the allegation of 

misconduct. However, reprimand letters rarely assisted in understanding the 

investigative and adjudicative process leading to the disciplinary outcome. We 

found understanding the investigative process from the case files substantially 

more difficult, and sometimes impossible, for cases in which OMP/HR had not 

10
 
 

 

 

 

 

 

 

substantiated an allegation. Such case files often consisted of little more than a 

few email exchanges. 

The contents of the case files also demonstrated little attempt at structured 

process standardization. For example, no case file recorded any attempt to consult 

or rely on precedents within the Civil Division or elsewhere. While our review of the 

reprimand letters in three substantiated cases found that the Civil Division 

appeared to have considered the Douglas Factors during the adjudication process, 

no case file explicitly recorded a Douglas Factor analysis that we could review or 

consult for comparison with another case of alleged misconduct.24 The HR Officer 

told us that “each case is different, each person is different” and that she relied on 

her own memory to standardize outcomes. We discuss the Civil Division’s 

adjudication of investigations and penalties for substantiated cases, including its 

use of the Douglas Factors, later in this report. 

Due to case file content 

Timely Handling of Allegations 

Department policy requires that management must 

respond promptly to sexual harassment and misconduct 

allegations. Based on our review of case files, we found 

no consistent or minimum standards in the retention of 

documents to illustrate the timeliness of the Civil 

Division’s investigation or adjudication of allegations. 

In the four cases with sufficient documentation, it 

appeared that the Civil Division had responded promptly 

to the allegations. In each of these cases, a case file 

was opened or an interview was conducted by either 

OMP/HR or a supervisor within 6 calendar days of 

receiving the allegation. Adjudication was completed or 

discipline imposed within 3 months of receiving the 

allegation, with two of the cases being concluded within 

2 weeks. While these cases generally appeared to be 

completed in a reasonable amount of time, incomplete 

data and a lack of specific timeliness standards 

prevented us from making an overall determination of 

the Civil Division’s timely handling of allegations. 

Source: OIG analysis of OMP/HR case files 

limitations, the OIG was unable 

to fully evaluate the Civil 

Division’s disciplinary process 

for consistency and 

reasonableness, including 

timeliness (see the text box). 

We believe that the Civil 

Division could significantly 

lessen its reliance on the HR 

Officer’s memory if case files 

were maintained at a sufficient 

level of basic content and 

analytical rigor. Case files with 

standardized, basic content 

would also enable the Civil 

Division to compare case 

outcomes to make process 

improvement easier. Without 

such measures, the Civil 

Division risks prolonged or 

delayed handling of allegations in the future, which could undermine the 

Department’s zero tolerance policy by delaying appropriate corrective measures or 

even allowing harassing conduct to continue. 

24 As we discussed in the Introduction, civil service law provides 12 factors, known as the 

Douglas Factors, which should be considered in determining the appropriateness of a disciplinary 

penalty, although recording of the analysis is not required. 

11
 
 

 

 

 

The Civil Division Lacks a Consistent Standard for Reporting Sexual Harassment and 

Sexual Misconduct Cases Allegations to the OIG 

Department employees are required, with one exception, to report to the OIG 

all non-frivolous allegations of criminal or serious administrative misconduct by any 

Department employee.25 We found that prior to the OIG’s 2015 investigation, out 

of seven case files addressing allegations of sexual harassment or misconduct, Civil 

Division management and OMP/HR had not referred a single case to the OIG.26 

These seven case files included one case involving allegations of an employee 

repeatedly grabbing multiple employees’ buttocks and breasts at a public event and 

another case involving allegations of a supervisor’s sexual harassment of an 

attorney, including computer hacking.27 Though federal regulations implicitly allow 

some discretion as to what constitutes “serious administrative misconduct” that 

must be reported to the OIG, these cases indisputably met that standard under 

Department practice and our review of Civil Division case files shows a troubling 

historical trend of not reporting allegations to the OIG and the limitations of relying 

on manager discretion. 

We found that Civil Division personnel varied in their understanding of the 

OIG reporting requirement and its application to cases of sexual harassment and 

misconduct. Initially, the HR Officer stated that in the past she had believed that a 

report had to be made to the OIG when the misconduct amounted to a felony. The 

HR Officer later amended her reporting requirement to “whenever an allegation 

could be reported to the police.” When asked how she decided when an allegation 

could be reported to the police, the HR Officer said that she conducted a factfinding investigation to ascertain the alleged victim’s intent regarding contacting 

law enforcement, rather than consulting with any Department personnel on the 

legal categorization of the alleged conduct. The HR Officer told us that she was not 

sure who within the Civil Division was required to report an allegation to the OIG, 

but she believed that the Civil Division Security Office would make such a report. 

25 Under 28 C.F.R. § 45.11 (2006), all DOJ employees “have a duty to, and shall, report to 

the Department of Justice Office of the Inspector General, or to their supervisor or their component’s 

internal affairs office for referral to the Office of the Inspector General: (a) Any allegation of waste, 

fraud, or abuse in a Department program or activity; (b) Any allegation of criminal or serious 

administrative misconduct on the part of a Department employee (except those allegations of 

misconduct that are required to be reported to the Department of Justice Office of Professional 

Responsibility pursuant to § 45.12); and (c) Any investigation of allegations of criminal misconduct 

against any Department employee.” 

26 In July 2015, the OIG completed a preliminary review of findings in response to a complaint 

alleging that the Civil Division’s Office of Immigration Litigation had failed to properly discipline an 

attorney who had committed sexual misconduct. Michael E. Horowitz, Inspector General, U.S. 

Department of Justice, memorandum to Principal Deputy Assistant Attorney General, Civil Division, 

Allegations that the Civil Division, Office of Immigration Litigation Failed to Properly Discipline a 

Member of Management for Sexual Misconduct, July 28, 2015. Three of the 10 case files identified 

above were initiated after 2015. 

27 We note that even though this allegation implicates potential criminal activity under 

18 U.S.C. § 1030 and/or other statutes, the Department’s Office of Professional Responsibility did not 

receive a referral from Civil Division resulting from this conduct. 

12
 
 

 

 

 

 

Another Civil Division official later clarified that its Security Office reporting policy 

follows the Department’s policy on self-reporting and therefore it has no special 

requirement to report allegations of misconduct to the OIG beyond that incumbent 

on all Department employees.28 

We found that the Civil Division does not have a formal standard to 

determine whether to report harassment and misconduct allegations to the OIG. 

After the OIG completed its 2015 preliminary investigation, as discussed in the 

Introduction, the previous OMP Executive Director made it a personal practice to 

forward all matters of sexual harassment and misconduct to the OIG. The current 

OMP Executive Director confirmed that this informal practice remained in place and 

that she believes “when in doubt, send it to the IG.” Civil Division Branch Directors 

we spoke with said that they understood that complaints of sexual harassment and 

misconduct could be made to the OIG; but, as one Branch Director said in 

dismissing the idea of reporting to the OIG as a practical course of action, “I always 

call [the HR Officer].” Civil Division supervisors and Deputy Assistant Attorneys 

General (DAAG) uniformly indicated a practice of relying on OMP/HR to elevate 

cases of misconduct to the appropriate level of investigative review. 

Finally, we had difficulty determining from our review of case files whether 

the Civil Division had forwarded to the OIG allegations made to OMP/HR. In some 

cases, we had to make an inference from notes and emails within the case file to 

determine whether the Civil Division had handled a misconduct investigation 

internally or whether the OIG had also investigated it. To ascertain when the Civil 

Division actually reported cases to the OIG, we compared Civil Division case files to 

the OIG Investigations Division’s data. We found that the Civil Division had 

provided case files for four of the allegations that the OIG received directly from the 

Civil Division or its employees. Table 2 below reflects the Civil Division’s reporting 

to the OIG regarding the cases within the scope this review. 

28 According to Department policy, attorneys, including those within the Civil Division, must 

self-report to their supervisor and to their component’s Security Program Manager any arrest by law 

enforcement or “on or off-duty allegations of misconduct.” Supervisors and managers have a 

separate duty to report certain misconduct to the OIG or, in specific circumstances, to the Office of 

Professional Responsibility. See James L. Dunlap, Department Security Officer, memorandum to JMD 

Senior Managers, Self-Reporting of Arrests and Allegation of Misconduct, September 10, 2004. 

We note that a component’s Security Program Manager is also responsible for reporting 

misconduct to JMD’s Security and Emergency Planning Staff (SEPS), which maintains the attorney's 

background investigation. According to the Civil Division, “Every situation is different; thus, 

allegations of misconduct are evaluated on a case-by-case basis as to whether or not they should be 

reported to SEPS. Again, the Division would look to the Department’s memo for guidance on when 

misconduct should be reported.” Based on our review of case files, we found that only one case was 

reported to SEPS. 

13
 
 

 

 

 

Table 2 

The Civil Division’s Trends of Reporting Sexual Harassment and Misconduct 

Cases to the OIG 

Case 

File 

Type of Sexual Harassment or 

Misconduct Alleged 

Reported 

to the 

OIG? 

Method of 

Reporting OIG Action 

1 Stalking Yes Civil Division 

Executive Director Investigated 

2 Inappropriate verbal comments No 

3 Arrested for public sexual conduct 

while off duty Yes Civil Division Executive Director Investigated 

4 

Inappropriate comments to, and 

subsequent resignation of, a staff 

member 

No 

5 Peeping on multiple occasions Yes Employee complaint Investigated 

6 Inappropriate touching and comments Yes Employee complaint Investigated 

7 

Inappropriate relationship with 

subordinate, computer hacking, 

catfishing * 

No 

8 Inappropriate email communications 

and unprofessional behavior No 

9 Demeaning and inappropriate 

comments over email for several years No 

10 Inappropriate relationship/ stalking No 

* “Catfishing” is the deceptive practice of luring someone into a relationship by means of a fictional 

online persona. 

Source: OIG analysis of OMP/HR case files and OIG Investigations Division data 

Civil Division Officials Are Not Fully and Timely Notified of Substantiated Allegations 

of Sexual Harassment or Misconduct or Any Trends Related to Them 

We found that substantiated allegations of sexual harassment and 

misconduct are not consistently reported to the DAAGs or other Civil Division 

leadership. Several Branch Directors stated that the Civil Division has not offered 

guidance as to when an allegation relating to sexual harassment or misconduct 

should be reported to their DAAG. One Branch Director stated that he would let the 

DAAG know about sexual harassment and misconduct when he felt it was needed, 

but otherwise he believed that any DAAG would just as well let him handle 

allegations. Another Director said that he would not tell the DAAG, explaining that 

human relations management matters are handled within the branch. Also, a 

former Chief of Staff to the Civil Division’s Assistant Attorney General explained to 

us the criteria for elevating serious allegations to Civil Division leadership: “If 

Senior Management thought there was a serious issue, it would be on [the Chief of 

Staff’s] radar screen.” Moreover, the former Chief of Staff stated that he had relied 

on OMP/HR and the OMP Executive Director to handle allegations appropriately. 

Without guidance, reliance on OMP/HR and the OMP Executive Director to 

discern when an allegation should be elevated to the attention of the Civil Division 

leadership creates a risk of the same trend of non-reporting that we found in our 

case review for allegations made to the OIG prior to 2015. We believe that the Civil 

Division should establish criteria for determining when senior management is 

14
 
 

 

 

 

notified of these types of cases. Such criteria adheres to the Department’s view 

that “robust policies, effective and appropriate follow-up, investigation, and 

enforcement of the zero tolerance policy” will maintain the high standards of 

integrity and conduct the Department expects of its employees.29 

Penalties Imposed for Substantiated Allegations of Sexual Harassment and 

Misconduct May Not Be Consistent with Upholding the Department’s Zero 

Tolerance Policy 

While the Civil Division lacks internal policies and procedures for handling 

allegations, the investigation and adjudication of allegations are generally done in a 

timely manner and appear to conform to most applicable federal regulations and 

Department policies. However, the penalties imposed are neither consistent among 

cases nor with the Department’s zero tolerance policy.30 

The Civil Division Does Not Have Policies and Procedures for Handling Allegations, 

which Leaves Its Managers without Any Guidance for Determining How an 

Allegation Should Be Investigated 

We found that the Civil Division does not consistently handle the 

investigation of allegations of sexual harassment and misconduct. The Civil Division 

relies on general Department policies, such as Human Resources Order DOJ 1200.1, 

which provides guidelines for imposing formal discipline. OMP officials told us that 

they follow the Department’s policies rather than creating and following Civil 

Division policies because the Civil Division is such a small component within the 

Department. However, we found that no Department policy requires a formal 

investigation of any allegations, including allegations of sexual harassment or 

misconduct, reported to managers. Rather, Department policy allows managers the 

discretion to determine the appropriate procedures or to seek assistance. Civil 

Division officials and supervisors all stated that investigations are conducted at the 

branch management level, with OMP/HR or the OMP Executive Director providing 

assistance. However, we found three allegations that were handled at the branch 

management level. For these three allegations, OMP/HR was neither informed nor 

29 DOJ Policy Memorandum 2015-04, Prevention of Harassment in the Workplace (October 9, 

2015). 

30 In response to a working draft of this report, the Civil Division stated its concerns regarding 

what it described as the OIG’s overly broad use of the term “zero tolerance.” The Civil Division noted 

that the Department and other agencies have stated on numerous occasions that they have a zero 

tolerance policy in the sense that they will not tolerate their employees engaging in sexual 

harassment, that they will take whatever measures are necessary to stop such misconduct when they 

are informed of it, and that they will make sure that appropriate remedies are available for the victims 

of such misconduct. The Civil Division also stated that this does not mean that the agency will apply a 

zero tolerance approach to taking discipline for every substantiated allegation; it said that 

management will undertake an individualized assessment in each case and reach a disciplinary 

determination after considering all the relevant factors, as required by law. The Civil Division noted 

that this “is an important distinction to make when discussing zero tolerance, one that should be well 

understood and considered when evaluating whether the Civil Division did not comply with the 

Department’s policy.” However, as we note throughout our report, we believe that a zero tolerance 

policy means that all substantiated allegations will be addressed consistently and appropriately, which 

we found did not occur during the period of our review. 

15
 
 

 

 

 

 

 

consulted, resulting in branch management independently investigating allegations 

and imposing informal discipline. 

In one case, a female attorney alleged that a male attorney had peered 

through a window above her closed office door while she was pumping breast milk. 

A few months earlier, the same male attorney allegedly peered into the office of a 

different attorney while she was pumping breast milk. The complainant’s 

supervisor emailed the branch’s Assistant Director in charge of personnel matters, 

stating, “FYI — It happened again. [Complainant] was pumping in her office.” 

Based on our review of the case file, the branch’s Assistant Director appears not to 

have informed or consulted with OMP/HR regarding the allegation. The 

investigation into the allegation consisted of the male attorney’s supervisor 

speaking with him. Thereafter, his supervisor accepted the male attorney’s 

explanation of the incident as an honest mistake and imposed on him an informal 

disciplinary action of oral counseling. 

We believe that had the branch supervisors sought OMP/HR’s assistance in 

this case the allegation may have been more fully investigated, particularly since 

this was the second incident of a similar nature branch supervisors were made 

aware of. Our review of the case file revealed that the female attorney had 

reported the incident to the JMD EEO staff shortly after branch supervisors had 

already imposed oral counseling. In her correspondence with JMD EEO, the female 

attorney included additional supporting documents of inappropriate behavior, dating 

back to 2009, of the male attorney directed toward female coworkers or interns. 

Accordingly, we question whether branch managers have complied with the 

Department’s zero tolerance policy “to take immediate and appropriate corrective 

action to address all allegations of harassment.” 

The Civil Division Does Not Have Offense Tables or Penalty Guidelines to Address 

Sexual Harassment and Misconduct, which Results in Inconsistent Penalties for 

Substantiated Allegations and Enables a Pattern of Transferring Individuals with 

Substantiated Misconduct within the Department 

We have concerns as to whether the penalties imposed by the Civil Division 

for substantiated misconduct allegations are consistent with the zero tolerance 

policy that the “Department will tolerate no form of harassment and will take 

immediate and appropriate corrective action to address it.” Department policy does 

not require litigating divisions to have offense tables or penalty guidelines, but 

states that managers must consult with their HR representative when determining 

formal discipline.31 We found that, when Civil Division branch supervisors 

determine that formal discipline may be warranted, they follow Department policies 

and that, when imposing discipline, they notify and consult OMP/HR. Of the six 

allegations in our case sample that were substantiated and discipline was imposed, 

we determined that OMP/HR was involved in the adjudication process. However, as 

the HR Officer told us, she relied on her own memory of cases to standardize the 

31 Human Resources Order DOJ 1200.1 requires supervisors to consult with their HR office 

before proposing formal discipline. 

16
 
 

 

outcomes of current allegations; thus, penalties are informed by the HR Officer’s 

experience but are not necessarily appropriately consistent or systematic. 

In addition, Civil Division OMP officials told us that Douglas Factors are used 

in lieu of penalty tables, although there was no documentation in the case files 

regarding the Douglas Factors. The Douglas Factors include the employee’s job 

level and past work record, including performance on the job. And Civil Division 

OMP Officials stated that if an attorney has a lot of experience and is proficient in 

litigation, these factors must be weighed with the allegation in terms of the 

discipline imposed. Thus, it appears that the discipline imposed by the Civil 

Division could be less severe for high-performing employees. Moreover, we found 

that penalties in substantiated cases appeared to result from discussions between 

the HR Officer and branch supervisor, thus potentially negating any attempt at 

standardization by the HR Officer. 

Finally, the Civil Division appears to have a pattern of transferring individuals 

with substantiated misconduct to other branches of the Civil Division or within the 

Department. According to the HR Officer, this pattern represents an effort to create 

physical distance between an assailant and a target of sexual harassment, as well 

as to give the assailant a chance to improve their conduct. Other Civil Division 

officials informed us that this pattern evolved in response to the difficulty of 

removing an employee, even in cases of severe sexual harassment and misconduct. 

However, a Civil Division manager described a perception among division staff that 

employees with substantiated misconduct are “flushed” into other areas of the 

Department and identified the practice as “pass the trash.” While such a transfer 

does allow an employee with substantiated misconduct a chance to reform their 

conduct in a new environment, when combined with a lack of sufficient precautions, 

it also allows another opportunity for the same or aggravated sexual misconduct, 

places other Department employees at unnecessary risk of becoming victims to that 

misconduct, and appears to be in conflict with the Department’s zero tolerance 

policy. Our concerns are illustrated in the three cases below. 

Case A 

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 

17
 
 

 

 

 

 

 

 

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

upon his return from the detail. 

We also noted that this case presented potential criminal assault violations, 

yet we found no evidence in the case file that a referral was made to the OIG or 

any other law enforcement entity. In light of the senior official’s prior misconduct 

and the seriousness of the second incident of sexual harassment and misconduct, 

we concluded that this case demonstrated the Civil Division’s inadequate 

adjudicative decision-making.32 Similarly, the fact that an individual within Civil 

Division leadership who had knowledge of this misconduct history recommended 

this employee for another sensitive position within the Department demonstrates 

an inadequate appreciation by the Civil Division of the Department’s zero tolerance 

policy. 

Case B 

A GS-15 senior attorney admitted to stalking another attorney and hacking 

into her personal email account. The senior attorney then conducted a “catfishing” 

operation on the other attorney, resulting in his revelation to the other attorney 

several weeks later that he had used a fictitious online profile to entice her. 

Although the senior attorney received a written reprimand and diminution of title, 

was restricted for 1 year from entering the building in which the attorney he had 

stalked worked, and was moved to a different section within the Civil Division, he 

received no suspension or loss in pay or grade. Moreover, there was little 

documentation in the case file to determine how management had decided on a 

written reprimand. The HR Officer assisted in drafting the letter and spoke with 

branch supervisors, but the case file does not show the how much guidance the HR 

Officer’s level of involvement provided. Soon after the senior attorney’s 1-year 

restriction from entering the stalked attorney’s building ended, the Civil Division 

reassigned him to a different section of the Civil Division. Like Case A, this case 

raises potential criminal concerns, yet we found no evidence that a referral was 

made to the OIG or any other law enforcement entity. 

 Case C 

A GS-9 employee was alleged to have made inappropriate comments on one 

occasion regarding a female employee’s body. Upon investigation by branch 

supervisors and OMP/HR, the employee received a letter of admonishment, which 

does not constitute formal discipline. Although the letter did not go into the 

32 The Douglas Factors imply escalating penalties for repeated conduct. Specifically, the 

Douglas analysis encourages consideration of an employee’s “past disciplinary record,” whether an 

offense was “frequently repeated,” whether the employee “had been warned about the conduct in 

question,” and “adequacy and effectiveness of alternative sanctions to deter such conduct in the 

future by the employee.” See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). 

We have concerns that the Civil Division’s failure to use these factors in its Douglas analysis led it 

astray in demonstrating how it came to this disciplinary conclusion. 

Further, the Civil Division’s transfer of the employee to a detail with another Department 

component, without first investigating and adjudicating the disciplinary matter, may have put other 

DOJ employees at unnecessary risk of sexual harassment or sexual misconduct. 

18
 
 

 

 

 

 

 

 

employee’s official personnel file, it was recorded in the OMP/HR case files. The 

Branch Director said that he had decided on this level of penalty as a result of his 

experience as a reviewer for other general misconduct matters (but not for sexual 

harassment matters). He also met with the HR Officer regarding his recommended 

penalty, and she concurred with it. She felt that the proposed penalty was in line 

with the misconduct and would be appropriate. The substantiated misconduct in 

Case C was significantly less flagrant than the misconduct in Cases A and B, but the 

disciplinary response in this case was only slightly less severe than the penalties 

imposed in those cases. This leads us to further question whether the penalties 

imposed on the senior attorneys in Case A and Case B set the bar too low, thereby 

reducing the range of penalties that could be applied in less serious cases. 

Adding to the risk that the Civil Division may impose less severe penalties for 

substantiated cases of sexual harassment and misconduct for high-performing 

employees, as we discuss above, we found inconsistencies with the penalties 

imposed during informal discipline. Department policy does not require consulting 

with the component’s HR office for informal discipline. In three of the four sampled 

allegations in which informal discipline was imposed, OMP/HR was neither informed 

nor consulted. In these three allegations, the informal discipline imposed was oral 

counseling. In the allegation with OMP/HR involvement, the individual was issued 

an informal memorandum to file, maintained in Civil Division’s case file system. As 

a result, we are concerned that for the informal discipline, of which OMP/HR is not 

informed, there are insufficient process controls to ensure that allegations resulting 

in an informal response can be tracked — this makes it less likely that progressive 

disciplinary action would result in cases of repeated low-level sexual harassment; 

raises the possibility of inconsistent treatment of similar allegations; and, where 

progressive discipline is imposed, could make it more difficult to sustain without 

adequate records, if it were challenged. This is inconsistent with the intent of the 

Department’s zero tolerance policy.33 Further, the failure to inform OMP/HR of the 

informal discipline impedes the Civil Division’s ability to ensure that penalties are 

standardized across cases. 

33 In response to a working draft of this report, the Civil Division stated that informal 

discipline is provided on an informal basis and in an informal manner through verbal counseling or in 

written format. The Civil Division also stated that informal discipline does not have to be reported to 

HR and thus it is inaccurate to say that informal discipline is inconsistent with the intent of the 

Department’s policy. The Civil Division further stated that it should be noted that 5 CFR Part 752 sets 

forth a documentation requirement only for “formal discipline,” which it said supports its position that 

informal counseling does not always need to be documented. The Civil Division said it was not 

asserting that management should not document situations in which there is informal discipline, but 

that “it would be inappropriate to require management to memorialize every allegation that results in 

informal discipline.” As we note in our report, by not memorializing informal discipline, the Civil 

Division risks repeated instances of inappropriate behavior, inconsistent treatment of similar 

allegations, and potential difficulties defending disciplinary outcomes should they be challenged. 

19
 
 

 

 

 

Civil Division Employees with an Ongoing Sexual Harassment or Misconduct 

Investigation or Who Had Disciplinary Actions Received Performance Awards, which 

Could Deter the Reporting of Future Allegations 

We found that Civil Division employees received performance awards while a 

sexual harassment or misconduct investigation was ongoing or while disciplinary 

actions were in effect.34 For example, the senior official (Case A) who received 

formal discipline in the form of a letter of reprimand for groping two colleagues 

subsequently received performance awards during the period that the disciplinary 

letter was in the senior official’s official personnel file.35 Similarly, the senior 

attorney (Case B), who admitted to stalking another attorney and hacking into her 

computer, subsequently received a performance award, despite the fact that a 

formal letter of reprimand for misconduct remained in his official personnel file. 

And the male attorney (Case File 5 in Tables 1 and 2 above) who allegedly peeped 

into the offices of female colleagues received a performance award even though he 

had recently been counseled regarding the conduct underlying those allegations. 

We found that the Civil Division adheres to federal regulations and criteria 

established in Department policy when nominating an employee for a performance 

award.36 According to the Civil Division, Branch Directors are required only to 

certify that an employee nominated for an award has performed at the “Excellent” 

or “Successful” level in the same position and grade for at least 6 months and has 

not received a promotion, performance award, or quality step increase within the 

previous 6 months. Branch Directors must forward a nomination form to their 

DAAG for signature; but, as noted above, the DAAGs are not fully and timely 

notified of substantiated sexual harassment or misconduct allegations. The HR 

Officer told us that performance and conduct are separate and that the criteria for 

performance awards are applied across the board regardless of whether an 

employee has engaged in misconduct. However, she further explained that no one 

is entitled to an award and that the decision to give an award is left to 

management’s discretion. In addition, the HR Officer stated that only Honor 

Awards and the Attorney General Awards are vetted. A Civil Division manager said 

that it was his understanding that there is no review of award decisions and that 

when he was responsible for award decisions he submitted a spreadsheet of names 

and amounts to OMP/HR. This Civil Division manager also questioned the practice 

of awarding and publicly recognizing an employee who has been recently 

34 The Civil Division holds an annual awards ceremony that recognizes the achievements of its 

staff. Distributed at the Civil Division Awards Ceremony is a program that lists all of the employees 

who received a performance award during that year. The performance award is either a cash award 

or a quality step increase. The Civil Division Awards Ceremony program has a section entitled 

“Performance Awards Recognition” that lists the name of all the recipients without the dollar amount. 

We reviewed the 2014, 2015, and 2016 Civil Division Awards Ceremony programs and found the 

names of several employees whose sexual harassment or misconduct case files we had reviewed. 

35 As stated earlier, formal reprimands are included in an employee’s official personnel file for 

up to 3 years. 

36 The Civil Division adheres to 5 C.F.R. § 451.104 (2007) and the criteria set forth in Human 

Resources Order DOJ 1200.1. 

20
 
 

 

 

 

disciplined, stating that it may “reinforce the general perception that coming 

forward to report an allegation of [sexual harassment or misconduct] will not result 

in any meaningful consequence.” We agree with this concern.37 

37 The OIG previously found that the Department’s law enforcement components, including 

the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Drug Enforcement Administration; the 

Federal Bureau of Investigation; and the U.S. Marshals Service, have a policy regarding when an 

employee may be promoted, receive an award, or receive a favorable personnel action after having 

been disciplined for misconduct. See DOJ OIG, Bonuses and Other Favorable Personnel Actions for 

Drug Enforcement Administration Employees Involved in Alleged Sexual Misconduct Incidents 

Referenced in the OIG’s March 2015 Report, Evaluation and Inspections Report 16-01 (October 2015). 

21
 
 

CONCLUSION AND RECOMMENDATIONS 

Conclusion 

While the Civil Division’s handling of allegations of sexual harassment and 

misconduct appears to follow federal law, regulations, and most Department 

policies, the Civil Division needs to improve its tracking of allegations and ensure 

consistent adjudication to enforce the Department’s zero tolerance policy. The Civil 

Division Office of Management Programs’ Human Resources (OMP/HR) case file 

system does not include all documents relevant to the disciplinary process. While 

OMP/HR has the most extensive information in its system due to its advisory and 

recordkeeping roles, the Civil Division’s decision to leave the handling of allegations 

to the discretion of its supervisors risks that important facts and allegations will not 

receive appropriate attention from OMP/HR or Civil Division leadership. Also, 

OMP/HR’s case file system lacks any minimum documentation standards that would 

ensure that the handling of sexual harassment and misconduct allegations remains 

consistent in the event of unexpected personnel changes. Overreliance on a single 

individual, the OMP/HR Officer, to remember all previous allegations risks 

compromising the case file system should that individual’s memory fail or should 

she be unable to perform her duties. These deficiencies have resulted in 

inadequate tracking of case files related to sexual harassment and misconduct. As 

a result, neither the Civil Division nor the OIG can determine an accurate number 

for sexual harassment and misconduct cases or whether the Civil Division has 

addressed all allegations appropriately. We believe that because each allegation of 

sexual harassment or misconduct requires appropriate consideration, the Civil 

Division must address these weaknesses and provide adequate guidance to ensure 

that it acts consistently with the Department’s zero tolerance policy. 

The small number of case files within the scope of our review, as well as the 

lack of information and incomplete case files, limited our evaluation of the Civil 

Division’s disciplinary process related to sexual harassment and misconduct, 

including an evaluation of investigations and adjudications and whether they were 

completed in a timely manner as such cases require. In addition, in some cases it 

was difficult to determine whether the allegations were substantiated because many 

of the case files had no statement of substantiation or other record of findings. 

However, where we were able to analyze the disciplinary process, we generally 

found that Civil Division personnel were processing misconduct cases in a timely 

manner. In addition, the Civil Division is now appropriately referring misconduct 

allegations to the OIG, though it had not followed such a practice in the past. 

Additionally, Civil Division OMP/HR, managers, and attorneys may be limited 

in their searches for case precedents that could assist them in their advisory 

function and help ensure consistent penalties in similar situations. Overall, these 

deficiencies hamper the Civil Division’s ability to carry out its disciplinary process 

and ensure that it responds to sexual harassment and misconduct allegations in a 

manner that would successfully eliminate such misconduct from the workplace. 

In substantiated cases for which the available records allowed us to evaluate 

the imposed penalties, we determined that the outcomes generally did not consist 

22
 
of more than a written reprimand, title change, and reassignment in cases in which 

the subjects of the allegations were supervisory/senior attorneys. Even in cases 

that implied criminal behavior, the Civil Division chose not to impose more serious 

discipline, report the allegations to the OIG, or conduct further investigation. 

Further, the lack of penalty guidelines specifying the range of penalties in 

substantiated cases prevents the Civil Division from imposing consistent penalties 

and enforcing the Department’s zero tolerance policy for sexual harassment and 

misconduct. Finally, providing performance awards to Civil Division employees with 

an ongoing sexual harassment or misconduct investigation or while disciplinary 

actions are in effect may deter the reporting of future allegations and risks sending 

employees a message that Civil Division management does not take such 

complaints seriously. 

Recommendations 

To improve the Civil Division’s handling of sexual harassment and misconduct 

allegations and enforce the Department’s zero tolerance policy, we recommend that 

the Civil Division: 

1.	 Create a system to track all allegations of sexual harassment and 

misconduct, to include minimal standards for case file content. 

2.	 Develop policies or guidance consistent with Department policy on processing 

allegations of sexual harassment or misconduct that ensures reporting the 

allegations to the OIG, the Civil Division’s leadership, and the Office of 

Management Program’s Human Resources. 

3. Develop consistent penalty guidelines for substantiated allegations of sexual 

harassment and misconduct. 

4. Consider developing 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. 

23
 
 

 

 

 

 

APPENDIX 1
 

METHODOLOGY OF THE OIG REVIEW 

In this review, the OIG evaluated the Civil Division’s policies, procedures, and 

guidelines for reporting, investigating, and adjudicating allegations of sexual 

misconduct, with an emphasis on sexual harassment and other misconduct made 

against its employees. We determined the extent to which allegations of sexual 

misconduct were accurately and timely reported, as required by Department 

regulations and Civil Division policies. We also evaluated whether offense tables 

and penalty guidelines are adequate to address sexual harassment and misconduct 

allegations in a consistent manner. We focused our review on allegations of sexual 

harassment and misconduct from fiscal year (FY) 2011 through FY 2015 and the 

first two quarters of FY 2016. Our fieldwork, from May 2016 through November 

2016, included interviews, data analysis, and document reviews. The following 

sections provide additional information about our methodology. 

Standards 

The OIG conducted this review in accordance with the Council of the 

Inspectors General on Integrity and Efficiency’s Quality Standards for Inspection 

and Evaluation (January 2012). 

Interviews 

We interviewed the current Civil Division Executive Officer and former Human 

Resources Officer. We interviewed all six Civil Division branch Deputy Assistant 

Attorneys General. We interviewed 12 Branch Directors, including at least 1 from 

each Civil Division branch. We also interviewed two Justice Management Division 

Equal Employment Opportunity staff members to determine whether they had 

received any allegations of sexual harassment and misconduct from Civil Division 

employees that had not been reported to the Civil Division. 

Case File Review and Data Analysis 

We reviewed case files related to substantiated and unsubstantiated 

allegations of sexual harassment and misconduct for FY 2011 through FY 2015, as 

well as the first two quarters of FY 2016 (October 1, 2015, to March 31, 2016), 

within each Civil Division branch. We reviewed 10 case files provided by the Civil 

Division as falling into the scope of the review. We reviewed the case files to 

determine: (1) the type of sexual harassment alleged; (2) whether the timeline of 

the reporting, investigation, and adjudication was discernable; (3) whether we 

could establish the allegations as substantiated or unsubstantiated based only on 

the written records; and (4) the disciplinary outcomes. 

During our interviews with Civil Division Branch Directors, we identified two 

allegations that were not initially provided in response to our document request. 

The Civil Division’s Office of Management Programs subsequently provided us with 

a case file for one of the allegations but did not have a case file related to the other 

allegation. We also reviewed Civil Division branches’ internal case files related to 

allegations of sexual harassment and misconduct. 

24
 
 

 

To determine the referral of allegations, we performed cross-reference 

analyses of the case files provided by the Civil Division against data from the OIG’s 

Investigations Division and the Department’s Office of Professional Responsibility. 

Policy and Document Review 

We reviewed policies, procedures, and guidance addressing sexual 

harassment and misconduct, including Attorney General Janet Reno’s memorandum 

on Prevention of Sexual Harassment in the Workplace, June 29, 1993, as amended 

on December 14, 1998, and reaffirmed by DOJ Policy Memorandum 2015-04, 

Prevention of Harassment in the Workplace, October 9, 2015, and Human 

Resources Order DOJ 1200.1. We also reviewed prior inspections, reviews, or 

reports issued within the previous 5 years pertaining to sexual harassment and 

misconduct within the Department. 

25
 
APPENDIX 2
 

DOJ POLICIES ON PREVENTION OF HARASSMENT IN THE 

WORKPLACE
 

26
 

(@fficv of t~ l' Att(1:rnt~ <6tncrnl 

:mng~ington.1il. Qi. ~OS.30 

October 9, 2015 

MEMORANDUM FOR ALL DEPARTME"lOF,J;;;,tS ~ES FROM: TIlE A TTORNEY GENE~ ~ 

Subject: Prevention ofH&=ment in the Workpla<;<: 

POIJCY MEMORANIlIIM 1/ 20 15-114 

PURPOSI':, Renews policy that the o"panment "ill tolerate no fonn ofharas.srrtent and enSures 

that no employee is subjected to retaliation because he or she has alleged unlawful harassment or 

assisted in any inquiry about such allegations_ Thepolicy directS managers a!ld supervisors to take 

immediate and appropriate corrective action to addn.ss all allegations of llarru!sment and retaliation 

and to be accountable ror failure to do so. 

SCOf'F::: All Depanmentoomponents 

POUCY: The Department of Jl.lSlice will maintaiu a zero tolerance work environment that is fiu 

from harassmem{incJuding se~ual harassment) based on sex. race, color, rdigion, national origin, 

gender identity, age, disability (physical or mental), genetic information, status as a par<:nl se;o;ua1 

orientation, marital status, political affiliation, or any Otk< impennissible factor. "The Depanment 

also will ensure that no employee is subjecte<l to retaliation because he or she has all ege<l unlawful 

harassment or assisted in any inquiry about such all:gations. Managers and supervisors mllSt take 

action quickly to respond to allegations of harassment or retaliation. 
Depattment of , .. ,ice 

PQlioy M.mOl1Uld~m , 20 I S4I 

J want to take this opportunity to reiternte the: Depa.1ment ofJustice policy of maintaining a W(lIx 

environment that is free from harassment (including sexual harassment) based on sex, race, color, 

rdigion, national origin, gender identity, age, disability (physical or mental), genetic information, 

status as a parent, sexual orientation, marital status, political affiliation, or any other impennissible 

factor, It is also the Department's policy to ensure tbat no employee is subje<:ted to retaliation 

because he or she has alleged unla""ful harassrnentor assisted in any inquiry about sudt 

allegations, The IXpartmen\ will tolerate no fonn of~sment and "ill take immediate and 

appropriate corrective action to address it 

Harassing conduct is defined as any unwelcome verbal or physical conduct that is based on any 

of the abo~'e-referencc:d characteristics when this conduct explicitly or implicitly affect~ an 

individual's employment; unreasonably interferes with an individual's wOIk perfonnance; Of 

creates an intimidating, hostile, or offensive work environment 

To enforce this zero tolerane<: policy, the Department Will treat harassing conduct as misconduct, 

even if it does oot rise to the level of harassment actionable under Title VII of the Civil Rights 

Act of 1%4, as mnendcd. The Department will n(,t wait for a pattern of offensive conduct to 

emerge before addressing claims of harassment. Rather, the Department will act before the 

harassing conduct is so pervasive and offensive as to constitute a hostile environment. Even 

where a single utterance ofan ethnic, sexual, l1ICiaJ, or other offensive epithet may nO! be severe 

enough to constitute unlawful harassment in violation ofTitJe VI!, it is the Department's view 

mat such conduct must be pr<:vented wbenever polsibic througb awareness, robust policies and 

effective and appropriate follow-up, investigation, and enforcement of the zero tolernnce policy. 

The Ikpanment will not tolerate retaliation 8gaj~!t any employee for maki~g a good-faith report 

of harassing conduct Of for participating in any inquiry about such a ~port. 

Any employee who believes that he or site has been subjected to harassment should ~port such 

behavior immediately to a supen'isoror higher level manager, the personnel officer in their offICe, 

or the individuals identified by their office to manage harassment allegations. Employees may also 

seek asliistance from their Equal Employment Opportunity Office, the Officc of Professional 

Responsibility, or the Officc of the inspector General. In addition, employees in a collective 

bargaining unit may seek assistance through appropriate provisions of their collective bargaining 

agreement Employees who want to file a fonnal complaint of harassment and. preserve their legal 

rights must contact theircomponenl's Ollie<: ofEqIl8.l Employment Opportunity within 45 days of 

the alleged unlawful harassment The Department · .. ill protect the confidentiality of employees 

bringing harassment claims to the extent possible. 

27
 
Deportment of J..tic<: 

Policy Memorandum. 201541 

ooJ managers and supervisors must Sel the example in their organization by ensuring thatlhe 

v.wlc.place is free Qfsuch belw.vior. Ever)" manager and supervisor must: 

• 	 Be mindful ofthe potential for harassment in his or her worl< environment; 

• 	 Take all necessary Siep$1Q prevent harassment from occurring; 

• 	 Ensure that, ifharassment does occ;ur, it is eliminated in a maIUll'T that is prompt 

and effective but minimizes the effecr on the victim 10 Ihe extent possible; 

• 	 Be unbiased and not retaliate against emplQyees who report haras>ing conduct or 

participate in any inquiry about such a I"qXIrt; and 

• 	 Take approptiate steps to hold tho"" who engage in hara$ingconduct accountable. 

AppropriateC01"1"eCtive action will be swift against any DOJ employ"" who engages in hardSSment. 

Likewise, disciplinary aetion will be taken against supeTViSOrll and managers who either condone 

or fail 10 act promplly to report or correct hara!i>!ing conduct brought to tlteir allention. 

28 

OOffiu (If tit!! Jiliorlttl! <iSen.crru ~ •• ~ingLn •• AI.. 20'530 . 

OecembQr 14, 1~98 

.~ 

, -, 

MEMORANDUM: FOR. TRE HEADS~OF ALL CO!\! S .. - '.' 

FROM , THE A.TTO E 

SUBJECT , The Prey araoGmrmt 

~ a~ tak1n~ the opportunity ff~d by three rocent SUp~eme 

court' deciuio ns' t o rov~ w w~th you ~ting Department of uu.tioe 

(Departmen t) poliey and, management obl.!g4l.tions regarding soxual. 

haraSliment 1n the workpl$cCt. X a 180 want to ' adrtuo you of r GCcnt 

:l..n.ltiativ o lJ by Illy Advisory committelt on the Prevent.ion of Sexual 

HQr~sDment, Me! the el. ifliruo.t~ n of ·the required. Po:inta;; gf Contact 

Progr&m. FurthQr, 1: alii. asking thnt y.::ru designate a%l .i.ndJ..v1dual. 

eo lEIarve as t he coordinator for the p:t'eve.nt:l..on at. it.,.",,) 

bar-Bilment in your org;an1zati.on. if. )"OU.· have not a1r~ done so. 

Die Supr e me Court Decisions 

Recently, ~ Supreme court iuuusd three de~ ans 

ooncern.illSJ DOXU.u. bar.Dumont in tWa workp1aCIlt . tn Ogre ] !! y. 

SllndgWDer Q;!!tnbOTa service ., Ins; • thCt COurt b o 14 .that ~lIICII81lt 

o n the. baaie of sex, where. both the har ... ser and. tho viet1m ~e 

the lI&me aex. ill prah:l..b1ted by Titl.e VII . In Jl'anghor y. Dogjl 

Rntgn and. Burlington lodu. trieft, Inc . y . . RUortb, Chn 8up!.'aDla 

Oour·t hel.d that .bon a uuma.gar or IJUparvi.IlDr IIIexu.oLll.y hara .... eo an. 

elll.p1oyee and eh .. harl1DGlUSnt rtloul.ta in a "t::aJ:1gible ofllPloyment o.1ecin~on· (auch as discharge , ooliOOlfioD or unde.:irob1e 

reH..8li1igmollUlt). tbe ttmplOYQ1" has vJ,.Ol.lIted. fe.deral. law. other ·· type. of ill.egal BCXU.Ul. harcullsment by suparv1.sor& ;and JDaDageX"B 

are treated a s hostile 8Ilv1.rotllDOIlt h"ras Bment. 'the Court hal.d 

tll4t the employer will not be he1d reoponsibl.e for hos t:.1.l.e 

environment ha.r/il.£usfIl,ene: by 1ts managers or ouporvisorG if i.e. 

(1) Qxerai&od reasonable care to prevent:. nod co~ct:. pxQ~tly any 8cxual ~y hara ssing behavio r, n~ (2) thl1 victi~ of ~Gsmcnt 

unre~orw.bly failod. to taka advantage of 'any preventive or 

corrective o pportunities provided by the emp1<lyer . 

The Ateorne:y GOlD.QraJ. '.s Advi80ry Coln:Dittee OD the Pre.vnnt.1.on 

ot Sexual HaraSliIlIIlI'!.11e hae. re.vie.wed thlUilC dea~B10D.8 and balll 

d etarr!llo.ed that the Departnaent of Juaeiee' '" CurrllDt:. sexual 

haraalilmeDt. policies ancl. procedures, .... hich are tnunma.l:i:eed bal:ow. 

nre ooosiatent with them. 

29
 
H • ..,r~Ddu,. to~ ~ of All ",-",,<>nt .. ~"bjQe., PrBv""tion 0' s.""u B"~ ... _nt 

"",.,'na PeP"ITUU!d ""li~OQ o n" ,...".00" .... 

'1'0 ." ...... <.bat tho Dopo.rt-"t 11;0 . Addr ... .d .-...1 

bo.r ....... t _r.!>oft.ol_ly ...... l~ ... spool.O. to .. ""'qutlOt for 

.ddHi on.! .. 0J.-" .. _ ''- _ of u.o l1t1.g .. i"" <llv1o!.owo. r:b<t 

'''''doory C '<.eoo ho.o und.rt.u" "",,""-1 l nhuUTBOO t o 

. "",,1 0_" ancI """Pl..-nt ell. DBDB~ O _i.U"" on"') l>ara._~ poli.cleo ...... >=>"a¢.<no, 

30
 
~,."'''.n~WI tor H. A<le ol Ul em.P"f"""~ 

BUI> ;e~t ' pr""ontiOtt ol """""I 11 . .......... 0, 

<Ie~biotuo an<! .... atfi ... tho. _t-..C'. ~e"", 

eohr""". " poll.". " loth r • • """. to bareeSO>oDt. "rho 

""""",ond_ ia ..."~,,t 1 1\.", ... " . 

• 

prurnriAD of /!,;!XllBl 1IltT"'Q nt 

31
 
H.moraM_ ~Q~ ..... .,. of All "'-"""n~~ 

subject ' PNv.mtlon of Sexual lIara ..... ~ 

...".~ .. u _".lAu • • • ~ .-'<l-." ....... wh.,. ... . _!.ayeo !"""k ... oth.., 

.,.--" . .. Q! ~u .. ~ wlt1oit> _'o,...nt "". D~"""'~. ' 1>;,." .... "- """ 

......... ber.eive _, _"""lty l=>C • ••. 

,. •.• In' ng 

32
 
_r"""" _j.o., lor ....... of ,ul co , enh 

lTo_tl"", 01 -"1 "' ... 0_1. 

t o Wven1gol.. and CIOCn<:t prabl..... In ..idiUOD, t ra,n, .... P""Vr ...... "",_t, 

... odd _ • 

• 

"lnally. ,oo,ot .... .............. 14 1 ....... p"rl041<> ~_...:. '0 

&11 .. ""loy-., ............ 1Uo ...... _t 11\4 _1400 othu 

up-too-uU lnt=-L1<>n. • , awr<>p .... ·

poU«y. h. 

33
 
@ffirr of t~t .Mtornrl,! !6tlltrnl 

lDlII~;nglan . -a. <!l. 205,(1 

Jun. 29, 1991 

"DKlRAlIOUII rOil O[P.o.Ittl!EIlT o r JUS,,:!-~?PLCY[ S 

fROM: THE ...,'TORHH C!JEAAl..r;fii.P 

SUaJECT: PunoUpn R~ , Her .. lI.nt I n t b. Wgrkoll" 

Sinc. join i ng tb. C.pa~t ... nt, I ba". h.<I on op ~tunl tY t o 

••• t .nd .. ark wi tb • • oy of th. tint •• n Ind " O'ln "ho d.diclt. 10 

.ueb o f tbdr I_ Ind .Hort to " pbol<ll.ng Shi, .g.ncy" 

tradit10n o f proh .. iondb •• nd . " caH.nc.. 1.1 proud to ba a 

pnt of tbIs gnat institution 10<1 to ha". t b. p[I'IlIeg. of 

•• rving ou r country Ind i t. eith."., In ord,r t o pr ••• r v. thi. 

,r,at tUd i t ion, J 1>111.'1' ttlat VI .u.t c r . .. ,. and. .. intlln an 

,nvirontlnt in .... leb .U "ploy'" ... n p ... f o .... tbal.r VOtll: fr •• o f 

any I.propu OOnduct such I. dl.eri.ln.tlon .. nd b.u .... nt, 

inCl Ud i ng " ",,01 b ........... nt. Ohcri.ination or b.ra .... nt of .. ny 

kln4 d l ply .. Ill not 1>1 t ol ..... tad In a O.p.~ta.nt ebl r g.d vith 

I nro .. c1n~ tht I.v . nd prot.ctl"" ttl. d ,ht. o f .11 ..... r ic.n •. 

'a,n.d b ........ nt •• • ul>j.etl"" • .,ploy.a. to unvdeo_ • • xu.l eOr\4uet ... eandltion of their , .. ployaant •• Is Ill.,.l. 

I t i. a Co .... of '"' dltcdtln.tloll proh ibited by Tit h 'lIt of ttli 

au eIvil RlghU Act. It 15 also eOlllplttdy .nUthetled to tb. 

1<1 •• 11 Of t b i. ,r.a t tlf,p.rt.ent . 

5.",,11 b.u .... nt oeeu .. _ " h.n •• plo,...nt l1.eltlon •• !f.ct i"" 

.n a .. ploy ... , .ueh a. hirln" f l.r l"", prooootiona, .".r<l. , tran.f .... or dieclpl lnuy .etlona, r •• "lt; r~o • • ubalt.lon to or 

r ajaetlon o r uov.leo ... ,.u'l eon<luet. S.xu.l hU ..... nt c.n 

.lto bt any activity "hicb cr • • t .1 . n lnt l .. 111.tln" honil. at' 

oH. n.h . ... ark .nvlronOltnt fat' ... ablr e o f on •••• , "hath.r .ueh 

I c tivlty it e<lorr l.d R<l t 'trt •• uptrvi.or Dr by I co·vorll: .... "'Ie 

e ould i .. "lud •• uch " o rll:p lle. conduct 8. dlspl"ylng ·plllup· eal.nd . 0 .... "".11'1 d .... nl1\9 p ietu .... , t elling lllfUelly 

ori.nt.", jek .. , NII:I"" lI""aUy o ft.n.lv .... urke, .nqa9in9 in 

unviOnta'" ,,)[\)iOl t ••• in9, .uoj.etl1\9 Inotha .. e.ploy •• t o p ..... ur. 

for dn •• , .... u.l . "'''<Ione ••• or unvlle",", touchl,., . 

S.""al bara .... nt continu •• to bt on. of tn. "",.t 

troubl •• oa. humeo r .. oure. Nn.,.a.nt ie.u •• ftC in, us today. 

O • • pit. III th. infO .... tion , r.quhtion •. pollet ••.• nd tulnl "" 

that h • .,. bten .ad •• vallebl. t o • • ploy •••• nd • • n89ar. on tbl, 

34
 
topic, .. a k""" tllU. probl ••• stlH panltt. I flraly boIlIl"'l 

t hat It .oqul ... trl' cOOpent lon Of aveqon. In the V(lr kpl ace If " . a •• t o lucc.,dully (lUI vltn this critical p rabha. ,... a .. l t 

Uk' • proactlvl app r oach to dulin9 vlth UK".! hu ...... rt. W. 

Jlu st .duco t . our '-+>Ioy,,, t o Inlura t hat IVI. yone lin • t lu. 

un<llnu..eln9 o f t h l, In .. l. 

1 •• eo_lttld t o t<In~ -I I nee .... ry nlpa to 1"1"" tJlat 

no •• ploy" of til' Ooop .. t .. nt. h subj ected t o aueh h u • •••• nc . 

... ny "pl"},,, .,ho boIlil"'" that h' or ah, II .. IMI" lubjl cted t o 

. .... , 1 h ....... nt ahouid repo rt luel'l tMl ha ... l ot Iltr.,d.latdy t o t ha 

."I""rv ilor , or. hiynl . ltVII orn"i.l. C-ploy." c an alao .uk 

e.,i.tane, frol tha r Of~lc. of rqual ~plcy •• nt opportunity, the 

OUI"s o f Prof ... le".l lIupcnllbllity, or thl o ttiel o f tl'\e. 

Inl plc t or c..n"n l. I ... ura YOli UI'" till .. t ter w111 t.. dealt " IU. ro.~u y ~nd I.~ rthlly and tlla t aaploya .. will not a"ffe r 

a ny fort ct reprhal or retaliation. 

An a"Ployaa who a "919" in iI'pro per conduct will t.. IIIbjact 

to appropriate dl,clpl lnlry IcUon. supe r vllor. WIIO aither co~do~1 or hl.l to u:t pro"ptly t o cotract Inapproprllt a cond uct 

bro" 9"t to their att nt lo~ wi ll ba I "bja c t t o dl aclp ll~uy 

. c t lon. 

1 wi ll hold ."""r ... ilors and .. an ... a n ra, ponelbla tor 

anror cl.., tllla polle y . I aMplc t .. ell unl",ar In tha DapertMnt 

to .. t t ha u.apla I~ hh Dr lI.r o<",lnluUon by . ns" r ln<) thlt 

tna workp l l ca I. traa or I"ell b.h .... ior. Ev.ry ',n,,,,.r ""It be 

,Wlft of his or he r work "lron(Wnt atld til' pot.ntl,l tOt 

probl • • •. 

I "'~ct the M I d of nCII co .. ponellt to cond"ct I~ uun.iv. 

CI.pa1'!1I to 'nl"r. thlt .11 IqlloY,,1 a nd .. n'9arl a r e IWlra or 

their r .. ~n.lbllitl '''y .. In tllll Iral, Ind thlt thay "ndanUnd tha 

""nlltl .. t hat bII h pond It t hay t ,1l to adha re t o th ... pollclaa. I have "kad Stephan II. COI ",l t ., ..... I.tl nt AUorney G,n.nl t or Ad,lnletration. to vork with cOlpon.nt ha,d, to .. ,ilt thn In lapl.Mnting tll la polley. 

I u k •• c" OM of YOll to 1o In Ie In thl. itportant aHort. "' a 1IlI.t In' ''rl tlllt t he Oaputa.nt II • 1<>4.1 •• on<) public Ind 

privlt. "'~loY.<I, OUter.nc,. In ",and er, rIc,. color, IIltlonal 

od",.ln or rlll",lon 1 ,,1t ba tu lly .... pectad . T..., e tllu , " a can 

Iclll ..... tllla ",OIL 

, 

35
 
 

 

APPENDIX 3 

DOUGLAS FACTORS 

The Merit Systems Protection Board in its landmark decision, Douglas v. 

Veterans Administration, 5 M.S.P.R. 280 (1981), established criteria that 

supervisors must consider in determining an appropriate penalty to impose for 

an act of employee misconduct. 

Although not an all-inclusive list, the following factors must be considered 

when relevant in determining the severity of the discipline: 

1.	 The nature and seriousness of the offense and its relation to the employee’s 

duties, position, and responsibilities, including whether the offense was 

intentional or technical or inadvertent, or was committed maliciously or for 

gain, or was frequently repeated; 

2.	 The employee’s job level and type of employment, including supervisory or 

fiduciary role, contacts with the public, and prominence of the position; 

3.	 The employee’s past disciplinary record; 

4.	 The employee’s past work record, including length of service, performance 

on the job, ability to get along with fellow workers, and dependability; 

5.	 The effect of the offense upon the employee’s ability to perform at a 

satisfactory level and its effect upon supervisors’ confidence in the 

employee’s work ability to perform assigned duties; 

6.	 The consistency of the penalty with those imposed on other employees for 

the same or similar offenses; 

7.	 The consistency of the penalty with any applicable agency table of penalties; 

8.	 The notoriety of the offense or its impact upon the reputation of the agency; 

9.	 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; 

10. The potential for the employee’s rehabilitation; 

11. Mitigating circumstances surrounding the offense such as unusual job 

tensions, personality problems, mental impairment, harassment, or bad 

faith, malice or provocation on the part of others involved in the matter; and 

12. The adequacy and effectiveness of alternative sanctions to deter such
 

conduct in the future by the employee or others.
 

36
 
APPENDIX 4 

THE CIVIL DIVISION’S RESPONSE TO THE DRAFT REPORT 

37
 

U.S. lJcpartment of .Iustice 

Civil Di vision 

May 26. 20 17 

MEMORANDUM 

TO: Nina S. I)ell ctier 

Assisw. nt Inspector General 

Eva luations and Inspections 

Office or the Inspector General 

CAt.........:.. .. , ... '~v:r~ FROM : Catherine V. Emerson 

Excclltive Offi ce r 

Civil Di vision 

U.S. DepaJ1m~nt or Justi ce 

SUBJECT: Civi l Di vision 's Response to the O IG Fonllal Drali RcporL "Review o l'lland ling 

or Sexual Harassment and Misconduct Allegations by Ihe parlm nt ~ Civil 

Di vision." 

Thank yO ll for providing us with the opportunit y 10 respond \0 the Ollice o rthe Inspec tor 

General's (0 IG) forma l draft report entitl ed, "Review of Handling. of Sexual Harassme nt .. nd 

Misconduct All egati ons by the Department's Civil Division:' Please lind be low our responses \0 

the fo ur recommendations provided in the drali report. 

Recommendation t: Creafe a ,\y."felll 1(1 lrack all allegatiol1s o(sl.!xllullwf'{ISsmellf will 

mi.\'('ol1dllL'f. fo inclut/e millilllol sfcwdllrt/s,fb,. ('(I,w:.!ile cOl/fenf, 

H.csponsc: Concur, Shortl y after the arri val or the new Exec lltive Onicer in January 

20 16, Civil Di vision leadership on its own initiati ve, took several ste.ps to improve th t: 

overall efllciency or the employee relations program. 

One of these steps entailed hiring addi ti onal sta ft' \.o manage the clllployce relations 

program. In May 201 6. the Civil Division hired a Senior Advisor who has an ex tensivc 

background in employee re lmions to assess the program, and then in December 20 16, the 

Di vision hired a seasoned Employec and Labor Relations Specialist. who previously 

participated in employee re lations program a udits. to solely work wilh supe rvisors and 

managers in addressing a ll egations or misconduct and improve employee re lat ions 

program processes. 
Arter arri ving to the Division. the Employee and Labor Relat ions Specialist reviewed 

each of the case Illes managed by the fonne r Human Resources Onicer for suffi ciency o f 

content. After the int ernal review was conducted. a low·cost mechanism for tracking and 

organizing the case liles was created. Add itionally. a new method for maintaining lilcs 

was established to ensure that going forward. all necessa ry supporting doculllents are 

captured in case fil es and easil y referenced. As a result oflhis effort. a ll rcported 

a ll egations can be now be searched based 0 11 employee names and/or categori es of 

offenses to ensure consistency of penalties and Ihal case lile records are completc. Based 

on this information. we request that you close this recommendation. 

Rccommcndalion 2: Develop policies or Kliidance C0l1sislell1 willi Depanmel1f po/hy 0/1 

processing al/egations (~(sexual harassmeJII or misconducllllal ensures repor,ing Ihe alle~a/iolls 

10 Ihe OIG. Ihe Civil Division"s leadership. and Ihe OJlice (~llvlal1aKelllelll Prograll/'s HIIII/un 

Resor,rces. 

Response. Concur. The Civil Division agrees with the OIG on the importance of 

ensuring that supervisors and managers have guidance on how the Division wi ll 

illVestigate and address a ll egations of misconduct. and who should be noti lied about 

a ll egations of misconduct. 

As pointed out in previous meetings with the OIG. in 20 15. the Di vision. through the 

fanner Exccutive Officer. issued an ema il to all Deputy Assistant Attorney Generals. 

Office Directors. a Special Master. and Counsel to the AAG abo ut ( 1) the obliga tion to 

repol1 any all egations of criminal wrongdoing or se rious administmti ve misconduct by 

Department employees to the OIG. with the pertinent reg ul ation quoted: (2) the 

Department's poli cies on prcventing sexual harassment inlhe workplace. re spond ing to 

domesti c violcnce. sexua l assault. and stalking. and o ff·dul Y employec misconduct. with 

copies oflhese poli cies: and (3 ) the importance that the Division places on ils obligations 

to comply with these poli cies and Managcment's responsibilities to respond 10 

harassment and misconduct in a manner that is sllccessful in e liminating it from the 

workpl acc. This written reminder a lso instructed the Directors to discuss with the ir 

Deputy Assistant Attorney General or the Executi ve Oflicer any questioJ1 !-i or concerns 

they have about the poli cies generall y or about a spec ific situation in particular. This 

guidance is in accordance with current Department policy. To remind supervisors and 

managers of their obi igatioll to report all egations of se:-; ua l harassment. the Civi I Di vision 

intends lo issue similar guidance based on current or revised Department pol icy regarding 

this subj ect on a recurring basis. 

To furl her he lp achieve this objective. the Division's Employee and Labo r Re lations 

Specialist will a lso provide guidance 011 how to handl e sexua l harassment andllliscondue t 

all egations during quarterly employee and labor re lat ions trainings. In ~IC t. duri ng a 

recent March 20 17 session of an employee and labor relations training course for 

supervisors. a portion of the training locused on when and how supervisors and Jllanagers 

should report misconduct. to include sex ual harassment. to the DIG and HR . The Civil 

Division will cOlllinue to provide this guidance during each training session to 

supplement the Division's and Department 's guidance on reporl ing and addressing sc:-;ual 

· 2-

38
 
harassment all egations. Based on this information. we request that you close this 

recommcndation. 

Recommendation 3: Develop cunsislenl penalty gUidelines/or subslamialed al/eJ.:alio}1s (~r 

sexual harassment and misconduct. 

Response: Concur. The Civi l Division's position is that penalty tables or strict penalty 

gu ide lines that prescribe a penalty for certain type s of misconduct limit supervisors' and 

managers' ability to make indi viduali zed assessments o f the appropriate responses to 

substa ntiated allegations of sexual harassment and misconduct. The Civil Di vision 

understands. however. that this recommcndation docs not require the impleme ntation of a 

penalty tabl e or guidelines that require specific penalti es for se:-.: ual harassment. 

FUrihe rmorc. because certain employees within the Civil Division arc unioni zed. 

implementation o f Di vision-wide penalty tables would require negotiations with thc 

union. which would rcsult in unpredictabl e delay in satisfying the recollllllc ndation. 

The Civil Division undcrstands. howc ver. that the recommendat ion might be satisfi cd by 

the issuance or a policy that guides the exercise of disc retion by disciplinary omcials in 

such matters. We also understand that thc Deparlment as a wholc likely will be 

considering issuance of additional guidance for the handling of sexual harassment 

incidents. and the Civil Division has olTered to parlicipate in those efforts. Obviously. the 

Civil Division will be bound by and comply with any Deparlment policy. The re fore. we 

concur with the recommendati on with the understanding that thc recolllmenda tion may be 

satisfied by issuance of a Department-wide policy. after which we wou ld conside r 

whether add itional component guidance is necessary. 

With those understandings. Ihe Civil Division concurs in the recommendation. 

Add itionally. to assist uper so s and managers in making these assessments and to 

provide guidance on similar penalties for li ke a lTcnses within the Division. the Division's 

newly hired Employee and Labor Rel ations Specialist will also help 10 ensure prope r 

reporting o rthe a ll egations to the O IG and Division leadershi p. By utili zing a consistent 

process in every case. inc luding consideration of the DOI/Xlas factors when appropriate. 

the Cjvi l Division strongly believes that the app ropriate level of disciI'I inc \vi 11 be 

adm inistered as the facts of the case wa rrant in the meantime. 

Recommendation 4: COl/sider dc.'l'e/vpil1g polhy gllidance regarding PCI./OI"/1IlIl1CL' "words gil"('l1 

10 alld pllhlic recngnilinl1 nfem employee w/to is under illl'csligalion or has /"{ CeJ1/~1 1 heeJ1 

disciplil1alfor miscOIIChl('l. incilldillg sexllallllll'O.\·SlIlelll. 

Response: Concur. The Civil Di vision intends to issue awa rds guidance by 

approximately August 20 17. 

Again. we appreciate the opporlunity to respond to the draft report providcd by your o ffi ce. 

Should you need additiona l infolmal ion. please do not hesitate to cont act mc. 

- 3 -

39
 
 

 

 

APPENDIX 5
 

OIG ANALYSIS OF THE CIVIL DIVISION’S RESPONSE 

The OIG provided a draft of this report to the Civil Division. The Civil 

Division’s response is included in Appendix 4 above. Below, we discuss the OIG’s 

analysis of the Civil Division’s response and actions necessary to close the 

recommendations. 

Recommendation 1: Create a system to track all allegations of sexual 

harassment and misconduct, to include minimal standards for case file content. 

Status: Resolved. 

Civil Division Response: The Civil Division concurred with the 

recommendation and stated that shortly after the arrival of a new Executive 

Director, Civil Division leadership took several steps to improve the overall 

efficiency of the employee relations program, including hiring additional staff to 

manage the employee relations program. For example, the Civil Division hired a 

Senior Advisor to assess the program and an Employee and Labor Relations 

Specialist solely to work with supervisors and managers in addressing allegations of 

misconduct and improve employee relations program processes. The Employee and 

Labor Relations Specialist reviewed each case file managed by the former Human 

Resources Officer for sufficiency of content. After the review, the Civil Division 

created a mechanism for tracking and organizing case files, and a new method for 

maintaining files to ensure that, going forward, all necessary supporting documents 

are captured in case files and easily referenced. As a result, all reported allegations 

can be now be searched based on employee names and/or categories of offenses to 

ensure consistency of penalties and that case file records are complete. 

OIG Analysis: The Civil Division’s actions are responsive to our 

recommendation. By August 31, 2017, please provide examples, such as 

screenshots, if applicable, of the Civil Division’s mechanism for tracking and 

organizing case files that shows how to search for allegations based on employee 

names and/or categories of offenses. Also, please describe the Civil Division’s new 

method for maintaining case files, including how all necessary supporting 

documents are captured in case files and easily referenced. 

Recommendation 2: Develop policies or guidance consistent with 

Department policy on processing allegations of sexual harassment or misconduct 

that ensures reporting the allegations to the OIG, the Civil Division’s leadership, 

and the Office of Management Programs’ Human Resources. 

Status: Resolved. 

Civil Division Response: The Civil Division concurred with the 

recommendation and stated that it agrees with the OIG on the importance of 

ensuring that supervisors and managers have guidance on how the Civil Division 

will investigate and address allegations of misconduct, and who should be notified 

about allegations of misconduct. The Civil Division also referenced a 2015 email 

40
 
 

 

from the former Executive Officer reminding all Deputy Assistant Attorneys General 

(DAAG), Office Directors, the Special Master, and the Counsel to the Assistant 

Attorney General about their obligation to report any allegations of criminal 

wrongdoing or serious administrative misconduct by Department employees to the 

OIG, with the pertinent regulation quoted; the Department’s policies on preventing 

sexual harassment in the workplace, responding to domestic violence, sexual 

assault, and stalking, and off-duty employee misconduct, with copies of these 

policies; and the importance that the Civil Division places on its obligations to 

comply with these policies and management’s responsibilities to respond to 

harassment and misconduct in a manner that is successful in eliminating it from the 

workplace. The Civil Division stated that this written reminder also instructed the 

Directors to discuss with their DAAG or the Executive Officer any questions or 

concerns they have about the policies generally or about a specific situation in 

particular, and that this guidance is in accordance with current Department policy. 

The Civil Division stated that it intends to issue similar guidance based on 

current or revised Department policy on a recurring basis to remind supervisors and 

managers of their obligation to report allegations of sexual harassment. The Civil 

Division’s Employee and Labor Relations Specialist will also provide guidance on 

how to handle sexual harassment and misconduct allegations during quarterly 

employee and labor relations trainings. During a March 2017 training course for 

supervisors, a portion of the training focused on when and how supervisors and 

managers should report misconduct, to include sexual harassment, to the OIG and 

HR. The Civil Division stated that it will continue to provide this guidance during 

each training session to supplement the Civil Division’s and Department’s guidance 

on reporting and addressing sexual harassment allegations. 

OIG Analysis: The Civil Division’s actions are responsive to our 

recommendation. By August 31, 2017, please provide a copy of the new guidance 

reminding supervisors and managers of their obligation to report allegations of 

sexual harassment and misconduct and indicate the frequency of the written 

reminders. Also, please provide a copy of the training materials for how to handle 

sexual harassment and misconduct allegations used during quarterly employee and 

labor relations trainings. 

Recommendation 3: Develop consistent penalty guidelines for 

substantiated allegations of sexual harassment and misconduct. 

Status: Resolved. 

Civil Division Response: The Civil Division concurred with the 

recommendation and stated that penalty tables or strict penalty guidelines that 

prescribe a penalty for certain types of misconduct limit supervisors’ and managers’ 

ability to make individualized assessments of the appropriate responses to 

substantiated allegations of sexual harassment and misconduct. The Civil Division 

understands, however, that this recommendation does not require the 

implementation of a penalty table or guidelines that require specific penalties for 

sexual harassment. Furthermore, implementation of division-wide penalty tables 

41
 
 

 

 

would delay satisfying the recommendation because of negotiations with unionized 

Civil Division employees. The Civil Division understands, however, that the 

recommendation might be satisfied by the issuance of a policy that guides the 

exercise of discretion by disciplinary officials in such matters. The Civil Division also 

understands that the Department as a whole likely will be considering issuance of 

additional guidance for the handling of sexual harassment incidents, and it has 

offered to participate in those efforts, as well as be bound by and comply with any 

Department policy. In the meantime, the Civil Division believes that it would be 

counterproductive for the Division itself and on its own to develop a division-only 

policy. Therefore, the Civil Division understands that the recommendation may be 

satisfied by issuance of a Department-wide policy, after which it would consider 

whether additional component guidance is necessary. Additionally, to assist 

supervisors and managers in making these assessments and to provide guidance on 

similar penalties for like offenses within the Civil Division, its newly hired Employee 

and Labor Relations Specialist will also help to ensure proper reporting of the 

allegations to the OIG and division leadership. In the meantime, by utilizing a 

consistent process in every case, including consideration of the Douglas factors 

when appropriate, the Civil Division strongly believes that the appropriate level of 

discipline will be administered as the facts of the case warrant. 

OIG Analysis: The Civil Division’s actions are responsive to our 

recommendation. If a Department-wide policy on penalty guidelines is issued to 

ensure that penalties for sexual harassment and misconduct are sufficiently 

reviewed and consistently applied across all components, please provide the OIG a 

copy of Civil Division’s additional policy guidance or an explanation as to why 

division-specific guidance is not necessary. If no Department-wide policy on 

penalty guidelines is issued, please provide the OIG information on actions the Civil 

Division will take to resolve this recommendation. 

Recommendation 4: Consider developing 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. 

Status: Resolved. 

Civil Division Response: The Civil Division concurred with the 

recommendation and stated that it intends to issue awards guidance by August 

2017, approximately. 

OIG Analysis: The Civil Division’s actions are responsive to our 

recommendation. By August 31, 2017, please provide a copy of the guidance on 

performance awards and describe on how the guidance will be implemented. 

42
 
   

The Department of Justice Office of the Inspector General 

(DOJ OIG) is a statutorily created independent entity 

whose mission is to detect and deter waste, fraud, 

abuse, and misconduct in the Department of Justice, and 

to promote economy and efficiency in the Department’s 

operations. Information may be reported to the DOJ 

OIG’s hotline at www.justice.gov/oig/hotline or 

(800) 869-4499. 

Office of the Inspector General 

U.S. Department of Justice 

www.justice.gov/oig