Part 3. Table of Penalties

This Table is intended as a guide for your use in determining the most appropriate charges and penalties for behavior(s) or action(s) which warrant corrective/remedial action and helps to ensure a relative consistency of penalties for like offenses. Users should consider the Nature of Offense column as a listing of general categories of offenses and not use it as the specific terminology in framing charges; it is not all-inclusive and is not intended to address every conceivable disciplinary situation. Similarly, users should consider the Possible Charges column as listing only some potential charges; it is not an exhaustive list and other charges may be more appropriate. Managers should be careful to avoid force-fitting an offense or charge into an existing category. Rather, the Table is to be used as a guide for selecting a charge and penalty that fits a particular situation.

This Table does not replace supervisory judgement, as certain circumstances may warrant lesser or more severe penalties, and does not require specific penalties (for other than willful misuse of a government vehicle). Charge writers should explain a need for some disciplinary action in the proposal letter. For example, show that the conduct affected the Agency's ability to conduct its operations efficiently. Ideally, selection should be made of the least severe penalty necessary to correct misconduct and to discourage repetition. However, it is important to note that the supervisor retains full authority to set penalties as he/she deems appropriate based on the particular circumstances and specifications of the offense. It should be noted that, under 5 CFR 752, Subpart F, if suspending an SES employee, the suspension must be for more than 14 days (i.e., appealable to MSPB) and approved by the Executive Resources Board (ERB). Also note that for some serious offenses, a reduction-in-grade may be an appropriate alternative to a longer suspension or removal. Proposing and deciding officials should also be aware that suspension of more than 14-days, removal and reduction-in-grade penalties invoke a right of appeal to the MSPB; letters of reprimand and suspensions of 14-days or less do not. However, the employee may have other appeal rights including the right to file a grievance under the Department's administrative grievance procedure, a negotiated grievance procedure, or the EEO process if discrimination is alleged.

It is very important that the proposing and deciding official(s) consider and/or address each of the Douglas factors, especially in light of recent MSPB decisions which indicate a renewed emphasis on Douglas. Failure to address the Douglas factors could result in the mitigation of penalties by the MSPB. Thus, it is important to cite the factors considered in penalty selection (as well as the specifications of the charge and evidence) in both the proposal and decision letters. The decision letter should also state the reason(s) for judgement (i.e., justification of the proposal and decision). Including this information in the proposal and decision letters will enable managers to be more fully prepared to present their case should it go before MSPB or other third party. It also serves to alert employees to penalty issues and, therefore, provides an opportunity for the employee to address them before the penalty is imposed.

The Table lists only formal disciplinary actions (i.e., those which become a matter of record in the employee's official personnel folder). It does not mention oral warnings, counseling letters, and similar actions which are considered informal disciplinary actions and may be more appropriate for correcting minor offenses. The First Offense column, therefore, refers to the first offense for which formal discipline is being administered, although it may not be the first time a violation has occurred.

It is the policy of the Department that discipline be administered in a constructive and progressive manner, whenever practicable. (Note that offenses need not be identical in order to support progressively more severe action against an employee). However, the penalties suggested in the Table are guidelines only; nothing precludes management from proposing and then imposing no penalty, or a lesser or more severe penalty than that offered by the Table, as circumstances warrant. Such circumstances, however, should be fully documented in the decision letter. (Note that a deciding official cannot impose a more severe penalty than that originally proposed in the proposal letter.)

TABLE OF PENALTIES

Notes:

1. 370 DM 630 has requirements and guidance in this area. The range of penalties for subsequent offenses, including removal from government service, may also be applied for a first offense when an absence is extended, the failure to adhere to leave procedures is flagrant, or the circumstances are otherwise particularly burdensome to management.

2. 5 U.S.C. 7503(a) permits suspension of 14 days or less of any employee with four documented instances of discourteous conduct toward the public within a one-year period as confirmed by an immediate supervisor, or any other pattern of discourteous conduct.

3. 370 DM 430 prescribes procedures applicable for dealing with unacceptable performance.

3a. While not listed as a "possible charge", "insubordination" (i.e., the explicit refusal to comply with an order) may be the appropriate charge in some cases . However, caution should be used when charging employees with insubordinate behavior as the agency will have the burden of proving the employee willfully and intentionally disregarded supervisory directives.

4. Proposing officials should use caution if charging an employee who has engaged in the type of conduct described with "making threats" or "threatening behavior." This is due to the stringent legal test the United States Court of Appeals for the Federal Circuit has crafted to analyze whether an employee had made a threat. See Metz v. Department of Treasury, 780 F.2d 1002 (Fed. Cir. 1986). Specifically, the appeals court held that the MSPB must consider the following five evidentiary factors in deciding whether an employee threatened his supervisors or co-workers:

(1) The listener's reactions;

(2) The listener's apprehension of harm;

(3) The speaker's intent;

(4) Any conditional nature of the statements; and

(5) The attendant circumstances.

Since Metz, the MSPB has not hesitated to overturn an agency decision where it has determined that, under the five-part test, the agency did not prove the employee made a threat. Therefore, the Department cautions against charging an employee with "threatening conduct," "making threats" or any other charge that includes the word "threat" in it, unless the threatening conduct can be proven under the five-part test described above.

5. Actions involving these offenses must assure that the requirements of 370 DM 792 in offering counseling or rehabilitative assistance are met; however, referral to an employee assistance program (EAP) does not preclude management from taking appropriate disciplinary action.

When the substance is prescribed by an appropriate medical authority and used accordingly, it would not be an offense.

5a.. Illegal drugs, as defined in 370 DM 792, are: marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP)

5b. 370 DM 792, 10.12, requires the initiation (i.e., proposal) of mandatory removal from Service for a second offense; however, a decision to remove is not required.

6. See also 41 CFR 114 regarding property management.

7. There may be some cases where the conduct at issue was clearly unintentional, although still inappropriate and contrary to the Department's Zero Tolerance Policy. In those cases managers may wish to consider a penalty at the lower end of the range and/or mandatory training as appropriate.

8. Action may be taken regardless of whether there was a final agency decision "finding" discrimination or a settlement action.

9. See 29 CFR 1604.11(a) for detailed definition of sexual harassment.

10. See 43 CFR 20.735-9 for specific regulations