What President Trump’s EO on Mental Health Issues Means for Agencies

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By Deborah Hopkins, October 14, 2020

We’ve all learned by now that this COVID-19 thing is intense. Not just the virus, but the effects it has on everyday life. From kids being at home to masks being required in public places, from social isolation to the loss of loved ones, every single American has been affected in some way.

And it’s taking a toll.

In a July 2020 poll from the Kaiser Family Foundation, 53% of U.S. adults said their mental health was harmed because of the worry and stress they’ve experienced over COVID-19 – and that was THREE MONTHS AGO. I can’t imagine what the percentage is today. There have been also been increased reports of substance abuse suicidal ideation among Americans since the onset of the pandemic.

Last week, while he himself was a COVID-19 patient at Walter Reed, President Trump issued an Executive Order On Saving Lives Through Increased Support For Mental- and Behavioral-Health Needs in an attempt to prevent suicides, drug-related deaths, and poor behavioral-health outcomes, as a result of the COVID-19 pandemic. This is a topic FELTG has been covering since the start of the pandemic, and will again discuss during the December 10 virtual training program Managing Employees With Mental Health Challenges During the COVID-19 Pandemic.

I spoke with Shana Palmieri, FELTG’s resident behavioral health instructor, after this EO was issued, about how agencies can best handle some of the related mental health challenges that come along with the pandemic.

DH: What are some of the tells or signs that might indicate an employee is struggling with depression, anxiety, or other mental health challenges? 

SP: The increase in stress and drastic life changes as a result of the pandemic are significant risk factors for increasing rates of depression, anxiety, suicidal ideation and substance use disorders. Key symptoms that may indicate an individual is suffering from a worsening mental health condition include low mood, emotional withdrawal, withdrawal/socially isolating (beyond what is required by CDC guidelines); excessive tearfulness; difficulty with focus and concentration; sleep disturbance/insomnia; anger/moodiness/irritability; forgetfulness; guilt; panic attacks; racing or unwanted thoughts; feelings/expressing pending doom; and excessive worry or fear.

High-risk symptoms that indicate the need for immediate crisis intervention include suicidal thoughts, plans or behaviors; psychotic symptoms (a loss of touch with reality evidenced by delusions, hallucinations or extreme paranoia);  change in mental status evidenced by severe confusion; evidence of a significant increase in alcohol or drug use; and extreme agitation, aggression or expression of thoughts/intent to harm others. 

DH: What are some practical suggestions for agencies to help employees who are dealing with mental health issues?

SP: In order to effectively assist employees dealing with high levels of stress or mental health issues, agencies should engage in a number of proactive steps to keep employees healthy, provide assistance to those who need mental health treatment, and be prepared to intervene should a mental health crisis present itself.

Tip #1. Ensure ease of access to behavioral health treatment. Proactively provide employees with information on how to access treatment such as EAP, behavioral health treatment through their health insurance provider, or through digital telehealth solutions.

Tip #2: Proactively provide key messaging to the agency workforce about:

  • How the agency is responding and able to provide assistance
  • The impact of the pandemic on mental health and substance abuse
  • How employees can access assistance from the agency, resources available, and information for the suicide crisis hotline. (National Suicide Prevention Hotline: 800-273-8255; Veterans Crisis Line: 1-800-273-8255; Veterans Text Line: 838255)

Tip #3: Ensure your agency has a policy and procedure developed for managing a mental health crisis in the workplace. It is crucial to have a plan in place that identifies protocols on the management of a suicidal employee, violent threats/behavior, and risk of or on-site overdose. Ensure supervisors and employees receive training on the protocols for a behavioral health crisis in the workplace.

Tip #4: Provide mental health training to supervisors, managers, leadership and HR staff.  This training should include:

  • An overview of mental health symptoms and conditions and how they can impact employee work performance
  • Implementation of appropriate workplace accommodations
  • How to appropriately – and safely – intervene in a behavioral health crisis

Tip #5: Ensure the agency has a culture that promotes mental health wellness.  Create a culture of physical and emotional wellness within the agency.  Ensure a culture that eliminates stigma and promotes mental, emotional and physical wellness through:

  • Improved access to care
  • Training of supervisors, managers, and leadership
  • Communication strategies from leadership to agency workforce encouraging employees to access resources and engage in strategies and behaviors that promote overall wellness

DH: Do you have any advice for supervisors who suspect an employee might be suicidal but are afraid to ask? 

SP: Remember to take all concerns and statements about suicide seriously.  Your actions can save a life!  Below are some key tips and recommendations if you are worried about an employee being suicidal:

Suicide Warning Signs

  • Making comments or direct statements about suicide
  • Seeking out lethal means or a lethal plan to kill self
  • Expressing a preoccupation with death
  • Expressing a lack of hope and despair about the future
  • Self-loathing, self-hatred
  • Saying goodbye and getting affairs in order, unexpectedly
  • Self-destructive behavior
  • Withdrawing socially from others (a change from the individual’s normal personality)

How to Talk with Someone About Suicide

  • Have an open conversation and state your concern for the individual
  • Stay open and non-judgmental
  • Actively listen and express concern
  • Offer support and guide the individual on how to receive help
  • Access mental health crisis services if necessary

Helpful Things You Can Say

  • “I have been feeling concerned about you lately.”
  • “I wanted to check in with you because you haven’t seemed like yourself lately”
  • “You are not alone, I/we are here to support you”
  • “It may not seem like it is this moment, but the way you are feeling can change”
  • “I may not be able to understand the exact way you are feeling, but I am here for you.  How can I help?

As you can tell, these issues can quickly become serious. FELTG provides training for agency supervisors and employees on how to safely, and legally, handle behavioral health issues in the workplace. Please let us know if there’s anything we can help you with. [email protected]

Ignoring History Will Only Harm You in the Present

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By Meghan Droste, October 14, 2020

Those who cannot remember the past are condemned to repeat it.” I am sure you are familiar with George Santayana’s famous saying, or some version of it. While it might not seem like we are in the business of teaching history — rather than law — here at FELTG, in a lot of ways we are. After all, what is any discussion of what the law is without a review of past decision from the Commission or the courts?  But that’s not the only way in which history plays an important role in what we do here. As we’ll see from a recent EEOC decision, it is important to understand the history of certain words and phrases because they can provide clear evidence of animus.

In Marleen G. v. Department of Justice, the complainant alleged that her first-line supervisor subjected her to discrimination and harassment based on her race and sex. See EEOC App. No. 2019003172 (Aug. 18, 2020). During the investigation, the complainant and several witnesses testified that her supervisor repeatedly screamed at her, chased her down the hall, and on at least two occasions, touched the complainant in a way she found intimidating. The record also showed that the Agency counseled the supervisor and offered her training, but this did nothing to stop the harassment.

As evidence that the harassment was based on her race and sex, the complainant provided several examples of the supervisor’s statements.  These included the supervisor telling the complainant that she lacked common sense and her assumption that this was due to the complainant’s “culture.” Other examples included the supervisor calling the complainant and another Black female employee “uppity,” and her comments about the “ridiculousness of weaves worn by African-American women.” The complainant also shared that in discussing rumors that the complainant was having an affair with a married subordinate, the supervisor stated, “I know it seems unlikely because what would an older white man have with a middle-aged black woman.”

In its Final Agency Decision, the Agency held that there was no evidence that the supervisor’s harassment was directly tied to the complainant’s protected bases and there was nothing to create an inference of animus.  The Commission reversed, finding sufficient evidence in the supervisor’s comments to support a finding of discrimination and harassment. The Commission noted that historically the word “uppity” has had a racial connotation.  The Commission also reflected on the “significant history” of criticism of Black women’s hair, and the “significant trope with an extensive history” of depicting Black people as less intelligent. The supervisor’s use of these historically offensive ideas and language was more than enough for the Commission to conclude that the supervisor’s actions were based on the complainant’s race and sex.

Language changes and evolves over time, which can be a wonderful and helpful thing.  But we are doomed to continue — and agencies will be liable for — a pattern of unlawful harassment if we do not acknowledge that some language has not changed and still carries with it the same offensive meaning as it has in decades past. We would all do well to learn from and about the past as we build a better workplace now and in the future. [email protected]

Make a Plan to Create Order Out of Chaos

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By Michael Rhoads, October 14, 2020

Happy (Fiscal) New Year!  Here in the Northeast, the leaves are changing color, the temperature is falling, and just like any other new year celebration, it’s good to take time to look at where you are and where you’re going. Fortunately, OPM and FELTG have multiple resources to help you focus your employees’ goals for the coming fiscal year to maximize your unit’s contribution to  agency’s mission.

Workforce Planning

Are you looking to bridge the gap between your current workforce and the needs your agency is facing to complete its mission? It would be nice to wave a magic wand and have it all appear at once. However, as Ben Franklin once said, “If you fail to plan, you are planning to fail.”

Having a framework and a step-by-step outline is the best way to begin the planning process. This 5-step model from OPM is a great tool for novices and experts.

Step 1: Set Strategic Direction. Start by linking the workforce planning process to your agency’s annual performance or business plan and consider both the long-term and short-term objectives of your plan.

Step 2: Analyze Workforce, Identify Skill Gaps, and Conduct Workforce Analysis. What are your resources? What are the gaps between the current resources and the goals of your plan? What human capital will you need to accomplish your plan’s goals?

Step 3: Develop an Action Plan. Identify strategies to close the gaps, implement strategies, and measure progress.

Step 4:  Implement Action Plan. Ensure the resources identified are in place, market your ideas to those involved, and execute the plan to achieve your goals.

Step 5: Monitor, Evaluate and Revise.  Monitor progress against milestones, evaluate to improve goals, and adjust goals.

SWOT Analysis

Another tried-and-true method to evaluate and plan new fiscal year goals is a SWOT Analysis.

  • What does your agency do well? What are your internal resources (e.g., skilled workers)? What are your Capital Assets such as proprietary technology or intellectual property?
  • Where can your agency improve? What resource limitations might hold you back?
  • How can your agency leverage its current strengths to create new opportunities? Could press or media coverage highlight your agency’s strengths? What are the emerging markets in need of your services?
  • Will the agency have to deal with any changing regulations?

As part of FELTG’s half- or full-day Strategic Planning course, IG-2: Strategic Planning, Scott Boehm will demonstrate how to formulate the OIG Mission and Vision Statements and conduct SWOT analysis.

Also, on November 19, Scott will give an hourlong webinar presentation about how organizing and annual planning can help your Office of Inspector General to make your agency more effective and achieve the annual goals you are planning right now. Register now for Properly Executing Planning and Outreach: A Guide for OIGs and get a jump start on your annual goals.

Stay safe out there, and remember, we’re all in this together. [email protected]

Dolezal is a Doozie: ’90s Case Highlights Lack of Potential for Rehabilitation

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By Barbara Haga, October 14, 2020

Last month, I wrote about Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) and explained that it had a lot of issues in it that I wanted to cover. This month, we will continue with the discussion of the Douglas factor “potential for rehabilitation.”

A Favorite Case

Anyone who has ever been in a discipline course with me has heard about this case. It demonstrates important issues related to the lack of potential for rehabilitation. This case is so unbelievable that it could have been on an episode of Ripley’s Believe it or Not!  The case is Dolezal v. Army, 58 MSPR 64 (1993). The decision was affirmed without opinion by the Federal Circuit in 1994.

Dolezal was the Assistant Deputy Chief of Staff for Base Operations Support (Civilian Personnel) for the Training and Doctrine Command of the Army. He was the chief civilian personnel officer for 40,000 civilian employees nationwide. He was appointed to the Senior Executive Service in 1991 and held an ES-3 position at the time of the events that led to his removal.

As the director of personnel for TRADOC, he supervised an employee named Cline, who was the GM-15 Director of the Peninsula Civilian Personnel Support Activity (PCPSA). One of Cline’s direct subordinates was Hamilton, a GM-13 HR practitioner who held the position of Chief of the Operational Support Division at PCPSA. Dolezal was the reviewing official for all personnel actions that pertained to Hamilton, including performance appraisals, promotions, and awards. Both Dolezal and Hamilton were married, but they began a social relationship in the fall of 1991 and by the end of that year the relationship had become sexual. They used the agency’s e-mail system to “… conduct voluminous personal and, occasionally, sexually suggestive correspondence ….”  So, we have two HR practitioners engaged in a sexual relationship and one is the second-level supervisor of the other and it is all being recorded in the agency e-mail system.

I cannot imagine how anyone involved in this situation could have expected this would have a happy ending.

In 1992, Cline began to suspect that Dolezal was sexually harassing Hamilton. She asked Hamilton if this was the case, but according to Cline, Hamilton gave an equivocal response about whether the apparent relationship was consensual. Subsequently Cline reported the matter to the agency’s IG.

Response to the Allegations

As a result of the investigation, Dolezal was charged with:

  1. Conduct unbecoming a Federal employee, with two specifications: (1) the “adulterous relationship with a subordinate female employee” in violation of Army disciplinary guidelines and (2) he made “disparaging and demeaning comments” about Cline in some of his e-mails to Hamilton.
  2. Violations of the standards of conduct in that his relationship with Hamilton could reasonably be expected to create the appearance of giving preferential treatment to Hamilton; could reasonably be expected to result in impeding Government efficiency; could reasonably be expected to create the appearance that he had lost independence or impartiality … and, could reasonably be expected to adversely affect the confidence of the public in the integrity of the Government and (2) that he wrongfully and without authority misused Government equipment in violation of Army guidelines by sending “numerous messages of a personal nature” to Hamilton via the e-mail system.

What was Dolezal’s response? He admitted he had an affair with Hamilton, that he used the e-mail system to send numerous love letters to her, and that some of those e-mails contained remarks that disparaged Cline. What did Dolezal raise as a defense?

There were several. He claimed that the penalty was too severe, that the penalty didn’t fit the table of penalties, and that comparators were subject to lesser penalties. He also said that his use of the e-mail system to send notes to Hamilton was part of widespread misuse throughout the organization and thus it was unfair to discipline him. His answer regarding his comments about Cline were private remarks between friends and, in his words, “… were common in the workplace and not actionable.” The attempts to deflect responsibility seem minor compared to Dolezal’s main argument that the affair was none of the agency’s business.

Dolezal had 23 years of service, no prior discipline, and what was described as an exemplary record. However, the agency decided to remove him. The AJ upheld the penalty, as did the Board.

Hamilton was also disciplined. According to the Dolezal PFR, she was demoted from a GM-13 to a nonsupervisory GS-12 position for her part in the misconduct and for making a false statement to the IG investigator.

Potential for Rehabilitation

The first time I read this decision, I was in shock. The head of HR for a headquarters-level Army command doesn’t know that an affair with a second-level subordinate is a work issue? Instead of taking responsibility for the things he admitted to, his answer is that it has no impact on his job?

How did the AJ respond to this argument? She wrote, Dolezal “… is not a good candidate for rehabilitation because he has yet to recognize that he committed actionable offenses.”

The Board noted that the argument was raised again on the PFR, writing, “Even at this late date, the appellant still does not understand the serious nature of his misconduct. He still contends that his affair with Hamilton was none of the agency’s business and he still denies that his flagrant misuse of PROFS (the e-mail system) and his offensive and demeaning comments about Cline are actionable misconduct.”

In the PFR, Dolezal claimed he showed contrition for the misconduct. The deciding official characterized it differently. The deciding official recounted that Dolezal showed some remorse for the difficulty caused by the IG investigation but never took ownership of the underlying inappropriate behavior.    Would things have been different if he had taken responsibility when the IG investigation began?  What if he had said he would go to counseling, or if he said he would not have further contact with her, or if he just said I did those awful things that no head of HR should ever do and I deserve some significant disciplinary action? Would the Army have chosen a lesser penalty? We will never know.

Dolezal was guilty of one other thing – very bad timing. The Tailhook scandal grew out of events that took place in the fall of 1991, so attention on inappropriate behavior of a sexual nature in DoD was at an all-time high at that point. Dolezal argued in the PFR that he was being treated as if he were a military officer in regard to this action because the deciding official testified that a military officer who engaged in similar misconduct would have been court-martialed. The Board interpreted that to mean that the deciding official felt that the misconduct was serious, not that an inappropriate standard was applied.

Tips from the Other Side: Accommodate, Don’t Rewrite Position Description

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By Meghan Droste, October 14, 2020

Last month, we looked at Cecille W. v. U.S. Postal Service, in which the Commission held the agency failed to accommodate the complainant because it looked only to the position description, and did not conduct an individualized assessment, when determining the essential functions of the complainant’s position. We have a slightly different spin this month, but the same underlying message: Agencies have an obligation to accommodate employees with disabilities when doing so is not an undue hardship. I recommend you keep that goal in mind as you evaluate requests for accommodations.

In Frederick A. v. Department of Defense, EEOC App. No. 2019002604 (Aug. 18, 2020), the complainant had limited vision due to a damaged retina in one eye, a cataract in the other eye, and glaucoma. When the complainant applied for his position as a Transportation Assistant, the vacancy announcement described the position as sedentary. The complainant passed a physical exam before entering on duty and successfully performed the duties of his position for one year. At that time, the agency directed him to obtain a driver’s license so that he could operate a forklift.

The complainant submitted a request for accommodations but then withdrew it because he did not believe operating a forklift was an essential function of his position — in part because of his position description, and in part because in one year he had never needed to as part of performing his duties. Although he withdrew his request, the complainant submitted medical documentation explaining his vision limitations. In his response, his supervisor asked him what accommodations would allow him to operate a forklift; the complainant again stated that he did not believe doing so was an essential function on his position.

At this point, you might assume that everyone moved on from what was obviously confusion about what the complainant did on a daily basis. However, the complainant’s supervisor took a different approach, rewriting the position description to remove the word “sedentary,” and specifically requiring the complainant to operate a forklift, something he had not needed to do at all during his first year on the job.

As we learned last month, the position description cannot be the only step in the analysis to determine the essential functions of a position. And while I often appreciate creativity in trying to address an issue, rewriting the position description to include functions that are not actually essential is definitely not going to help an agency. In this case, the administrative judge found that the agency failed to accommodate the complainant and the Commission upheld that decision.

Remember, Congress intended for the federal government to be a model employer when it comes to accommodating employees.  Failing to determine the actual essential functions of position—or trying to alter the record when it doesn’t support your view of essential functions—is not what a model employer should do. [email protected]

Don’t Ignore the Energy Vampires, Zoom Zombies, or Garish Ghouls

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By Dan Gephart, October 14, 2020

This time of year is celebrated widely and wildly in the neighborhood where I once lived. Faux spider webs, mock tombstones, humongous inflatable black cats, and DIY haunted garages would overtake North Palm Beach Heights, drawing trick-or-treaters, gawkers and street drinkers from miles away.

I don’t know if anything has changed in the Heights. My guess is that it’s as wacky as ever. I’m glad I’m not there. It’s hard to get into an appropriately festive mood this Halloween. Numerous events over the last several months – acres-ravaging wildfires, multiple hurricane threats, social unrest, and a pandemic that has killed more than 200,000 Americans – have made real life a little too scary. Heck, we’ve been wearing masks (at least those of us who care about our fellow humans) for several months already.

So excuse me if I don’t have the Halloween spirit this year. You too can certainly ignore this holiday. It’s easy. Forgo the costumes. Turn off your outdoor lights. And don’t answer the door.

Unfortunately, Halloween-like behaviors are happening every day at work – and your fate will be worse than a house-egging if you ignore the Energy Vampires, Zoom Zombies, or Garish Ghouls.

Energy Vampires

The majority of employees, maybe 80 percent, are good workers. You wouldn’t call them stellar. You’d probably call them “OK” or “fair” or consider them your “no problem” employees. Then you have the 10 percent of employees who actually are stellar – your top performers.

And then you have the bottom 10 percent. That’s where the “toxic” Energy Vampires reside.

They are the ones who, either because of performance problems or misconduct, drain everything from you. They are exhausting. You take them and their issues home with you. They’re a big the reason for your stress and anxiety. They take up an inordinate amount of your time, meaning those 80 percent aren’t getting the kind of management they need to join the top 10 percent. And those 10 percent stellar employees are probably not getting the recognition they deserve.

So what do you do? You take action, and you do it quickly and effectively. If you’re not sure how to do that, well I have good news: We do. That’s what FELTG is known for. Email me and we’ll bring one of our instructors to your supervisors. To find out more, read what we cover in our UnCivil Servant, Developing & Defending Discipline, and Managing Accountability classes, as well as our other Supervisory Training offerings. All of these trainings are offered both virtually and, in person, depending on your circumstances.

Zoom Zombies

The Zoom Zombies are a relatively new creature in the workplace. As work moved remote, agencies have relied on platforms like Zoom, Teams, Webex, and Skype to meet. The Zoom Zombies don’t seem quite there during these virtual meetings. Truth is, they know where the mute button is – and they’re not afraid to use it.

Are they even there? What are they doing? Honestly, they’re probably doing other work, talking to their children or their fellow teleworking spouse/partner. What can you do here? FELTG instructor/author Dr. Anthony Marchese offers four ways to put to an end to the Zoom Zombie:

  1. Don’t structure your virtual meetings the same as your face-to-face meetings. Make them less about information dissemination and more about “doing.” Use your meetings to collaborate and brainstorm. Create the expectation that everyone will contribute and not use mute unless absolutely necessary.
  2. To promote involvement and rebuild team cohesion, devote a portion of your meeting to positive aspects of working remotely/life during a pandemic. Select a different person each week to share something new he or she has learned about themselves during the past six months. Your zombies will likely tune in to hear more.
  3. Fully embrace the technology to encourage interactivity. Add video, whiteboards, polls, and chats to make the meeting more interactive.
  4. Avoid getting into a rut. Think of different approaches for your meetings. First, what is the reason for having the meeting in the first place? Next, consider: Am I defaulting to a “meeting” because that’s what I’ve done before? If I only have 60 minutes with my team this week, what can we do to best use that time? What does my team really need from me? From one another?

To hear more from Dr. Marchese, join him for the half-day virtual training event The Performance Equation: Providing Feedback That Makes a Difference on Wednesday, October 28 starting at 12:30 pm ET.

Garish Ghouls

Any time I read recent EEO case law, I feel like I’m watching a particularly cringe-worthy episode of Mad Men. People don’t really still do these things, do they? Yes, they do. Want a recent example? Read Deb Hopkins’ article last month about a now-former (thankfully) Fed named Dave.

There is way too much harassment and bullying going on in the federal workplace these days. Yes, some EEO claims are frivolous, over-reactions to being held accountable. But a lot of harassment that is going unreported. The #MeToo movement has brought light to the issue, yet much, sadly, remains hidden away due to embarrassment or fear.

Ghouls can thrive whether in the office or at home. In fact, the home environment makes some harassers more comfortable to take their actions. Regardless of where the workplace harassment takes, there is one important thing you need to know: You CANNOT wait to discipline the employee.

If you’re aware of inappropriate sexual conduct, you must take action. Right away. It doesn’t matter if a complaint hasn’t been filed. The other thing you’ll notice from reading EEO decisions is that they take a long time to get resolved. If you wait for that process to unwind, the agency harasser will commit more offensive actions. It’s your responsibility to protect your employee from harm and protect your agency from liability.

And here’s how you do that:

  • Take all harassment allegations seriously.
  • Stop the harassment, separating the alleged harasser from the situation.
  • Promptly investigate and take quick action.

Harassment Investigations will be covered on the second day of Workplace Investigations Week Nov. 16-20. Register here.

If you’re looking for something shorter, join instructor Katherine Atkinson for the 60-minute webinar Preventing and Correcting Hostile Environment Harassment next week (October 20 starting at 1 pm ET). [email protected]

And Now a Word With … Dr. Anthony Marchese, on Performance

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By Dan Gephart, October 6, 2020

Gourds, pumpkin spice, a slight nip in the air, falling leaves. It’s all a reminder for many supervisors that it’s time to start working on those end-of-the-year performance reviews. Many federal employees will be getting feedback on their performance for the first time since their last review. And that, FELTG Nation, is inexcusable.

Whether it’s anxiety, frustration, or confusion, you cannot afford to avoid regular, honest performance-related discussions with your employees any longer. Providing feedback effectively is a skill — one that every supervisor can and should develop.

FELTG Instructor Dr. Anthony MarcheseFELTG Instructor Anthony Marchese will present The Performance Equation: Providing Feedback That Makes a Difference on October 28 from 12:30 – 4 pm ET. I caught up with Tony, who besides teaching for FELTG is a consultant, author and former academic dean, to talk about performance feedback.

DG: Why is feedback so important?

AM: Feedback is essential for growth. It is embedded in some of our earliest experiences. It helps provide a map of meaning to help direc

t us toward desirable behavior. In other words, it helps us to understand where we are in relationship to where we could or should be. It helps reinforce positive behavior and offers insights into where we may need to adjust behavior that is incongruous with expectations.

DG: Does it always have to be formal?

AM: Definitely not! However, before we discuss delivery methods, we need to ensure that it is happening. In a recent study, Gallup reported that 50 percent of surveyed employees (from a variety of sectors) did not know what their managers expected of them on a daily basis. Forty-seven percent of respondents indicated that they receive feedback only a few times a year or less. If an employee consistently possesses that level of uncertainty further reinforced by an absence of performance conversations, it is unlikely that they will receive a positive performance review. It is a near impossibility that they will exceed expectations. Consider how the current pandemic may have further exacerbated ambiguity, uncertainty, and the frequency of performance conversations. We must do better.

DG: Speaking of the pandemic, a majority of federal employees are working from home now. What are some pitfalls for supervisors to avoid when providing feedback remotely?

AM: Try to avoid negative surprises. Let your employee know in advance what you’d like to discuss. Provide specific, self-introspective questions to help them prepare for the conversation by carefully considering their performance and be ready to discuss what to continue, discontinue, and how to do it. Also:

  • Try to avoid using a virtual feedback conversation to test out a new, unfamiliar technology. Video is always better. Make sure that you and your employee know how to use it. Remember, nonverbal cues are incredibly important and can be easily
  • missed when not meeting face-to-face or using video. Let them see you. Be sure to see them.
  • Try to make the feedback session an active, brainstorming experience. Rather than spending the time “telling,” consider a structure that encourages equal participation, reflection, and problem-solving. This energy helps mitigate the Zoom fatigue plaguing so many right now and also positions the supervisor as a collaborative partner in helping your employee be at their best.

DG: How do you provide feedback to essential workers who are so busy they don’t have time for a feedback session?

AM: If a supervisor is too busy to provide feedback, he or she is too busy to be a supervisor.

More than ever, it is important that each employee feels connected to her or his supervisor. In a world filled with uncertainty, anxiety, and exhaustion, supervisors who choose not to take the time to provide feedback perpetuate an already difficult situation.

Feedback can come in many forms. It is not limited to a 60-minute, sit-down session in an office. It can occur during a weekly one-on-one. It can occur via e-mail following a deliverable. It can be offered by colleagues (a 360 perspective is important). Right now is a great time to rethink how we provide feedback. For example, rather than a supervisor leading a session during which they “tell” their employee how they did, they may want to consider positioning the meeting as an inquiry opportunity. This helps promote individual ownership for performance. Supervisors should be curious. Ask questions of their employees like: How did you think the planning session went? What worked well? What would you change? Here is what I observed. What can we do together next time to ensure whatever a successful outcome would be?

Since most work-related communication has been interrupted/impacted by the pandemic, supervisors may want to reconsider how they leverage their one-on-ones, team meetings, and emails.

DG: What is the one thing every supervisor could do immediately to improve feedback?

AM: The most important thing is simply to do it. Don’t contribute to the 50 percent of employees who are unclear about what they should be doing. Here are a few other ideas to consider:

  • Conduct a self-assessment. Ask yourself: Do my employees know what I expect of them? How am I so sure?
  • Conduct a team assessment: Ask your employees (individually): Do you feel like you have what you need from me to perform your job well? What can I do/provide to ensure that you have what you need? What should I do more of/less of?
  • Performance feedback needs to consider both the “what” and the “how”. Many supervisors assume that once they provide feedback (especially constructive), their employees will know precisely how to change. This is often a false assumption. When providing feedback, discuss with your employee a strategy (with identified goals, resources, timelines, and accountability) to help support their efforts.

If you’d like to bring Dr. Marchese to your agency for training on feedback, communication or any leadership-related topic, email [email protected].

Harassment Investigation Challenge: Who is Telling the Truth?

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By Dan Gephart, September 29, 2020

If you’re a regular reader of Barbara Haga’s articles in our monthly newsletter (and if you’re not, what’s wrong with you?), you may have noticed a common thread weaved within her last two articles.

Sometimes, federal employees lie.

Earlier this month, Barbara told the tale of an FAA civil engineer who was asked point blank if she used her work computer “for unofficial personal reasons while on duty for any reason.” Her reply was a simple “no.” Unfortunately for the engineer, the agency had already compiled an Internet history of the computer in question and found more than 33,968 nonwork-related transactions on sites, such as Amazon, eBay, and Etsy. Further investigation revealed that the employee was actually running her Etsy business from her work computer.

A month earlier, Barbara wrote about an employee who denied sending inappropriate text messages, many of a racist nature, on her phone by replying “I do not admit to the validity of these messages.”

In both of these cases, the agency had one thing going for it – a lot of evidence.

But when you’re doing investigation of hostile work environment harassment, sometimes there isn’t much evidence, so you end up with the classic he said/she said situation. How do you determine credibility, especially when there is so much raw emotion involved? And how do you do it during a pandemic, when the interviews are being done remotely?

Next week, October 6-8, 2020, FELTG will present the virtual training Conducting Effective Harassment Investigations. On the third and final day of the seminar, FELTG instructor Meghan Droste will cover everything from interviews to writing the report, including a module on determining credibility.

First off, the EEOC has recognized that being able to see a witness is crucial to gauging credibility, so be sure that you have a reliable webcast platform like Zoom or Skype. Although you’re no longer in the same room, you should still be able to read demeanor and body language.

Here’s what you do: Start with easy questions. Monitor how the employee moves, including facial expressions. This sets a baseline for how the interviewee will react when telling the truth. Then start to toss in tougher questions. Look for a difference in reactions. Has the employee’s pitch or speech rate changed? What about eye contact? Are they fidgeting at all? Are their answers limiting details or are they adding more? Are they answering your questions with the same amount of certainty?

You can learn a lot from body language. Or, you may learn very little, because body language is a highly-contested area of credibility findings. Therefore, you can’t rely on just body language to make a determination. There are several other ways that truth, or more accurately, lies can be revealed.

Consider the following:

  • Detail. How specific was the witness’s testimony? Did the witness deny the allegations in detail or just generally? Did anyone leave out important or obvious information during the interview?
  • Corroboration/Conflict. Are the conflicts over minor or significant issues? Does the witness’s testimony contradict other testimony? Was the witness’s story consistent through the testimony or did it change on a second telling?
  • Plausibility. Which story make the most sense? Are the details in the testimony realistic?
  • Motive. Does the employee have a motive to lie about, exaggerate, or deny the incident? Do any of the witnesses have special loyalty to or a grudge against anyone involved in the incident?
  • Past record. Have there been any prior incidents between the complaining and accused employee? Does the accused have a history of this type of misconduct?
  • Demeanor. Was anybody’s reaction unusual, as compared to their typical demeanor?

Again, you can’t rely on any one of these factors when determining credibility. But taken as a whole, you should be able to develop some sense of who is telling the truth. [email protected]

Good News – Letters of Reprimand Save You Time and Money

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By Ann Boehm, September 16, 2020

I left the government in 2018, I spent a short time working in sales. In nearly every training session or staff meeting I attended, we were told to make sure the potential client knows your goal is to save them time and money. It makes sense. Those are things that people care about. (And now that I have told you that, you will now start to hear that “time and money” mantra from realtors, car salespeople, bathtub refinishers, gutter replacers, and anyone else trying to sell you something. Really. Start paying attention.)

I know what you’re thinking: We work for the government – we have all the time and money in the world. In some ways, that is true. But if you have a problem employee, do you really want to waste any more time and money than you have to?

Let’s start with time. So many agencies just love giving out letters of caution/letters of instruction/letters of warning to employees who engage in misconduct. Here at FELTG, we call those “lesser letters.” True, they are legal. But they are a complete waste of time, legally speaking. They don’t count as prior discipline. They are nothing more than a reminder to an employee that they have to abide by the agency’s rules.

To count as prior discipline for progressive discipline purposes – the ultimate goal in employee discipline – the employee’s action has to be clearly erroneous, the employee must be informed in writing, the action must be a matter of record (i.e., in the eOPF), and the action must be grievable and threaten future discipline. Bolling v. Air Force, 9 MSPR 335 (1981). Letters of reprimand satisfy these criteria. Lesser letters do not.

For some reason, supervisors, counsel, and HR professionals feel great comfort when they give an employee a “letter” — one of the lesser letters. When I supervised Discipline Management, we kept track of how many lesser letters we gave out each month. The number hovered around 35 per month. That’s a lot of wasted time.

Once I attended FELTG training and learned that only letters of reprimand count as prior discipline, we slowly stopped the constant issuance of lesser letters. I had to retrain  a lot of supervisors, managers, and employee relations experts on why we should issue letters of reprimand when we wanted to issue a “letter.” We ended up dropping the number of lesser letters to zero (or very close to it), which is the right thing to do, since the lesser letters are undefined and have no legal value.

  1. So that covers saving time. What about saving money? Lesser letters provide the agency with no disciplinary value, but they still provide an avenue for an employee to grieve or file an EEO complaint or file a whistleblower retaliation claim. Last time I checked, litigating those matters costs money. And heck, they take time too.

In Massie v. Department of Transportation, 2010 MSPB 106 (2010), the Agency issued the employee a Written Admonishment (yep, a lesser letter that was not placed in the eOPF). The employee filed a whistleblower retaliation complaint with the Office of Special Counsel (that took agency time and money).  He also filed a grievance under the collective bargaining agreement, which the agency settled by expunging the Written Admonishment (that took agency time and money). The employee then filed an Individual Right of Action appeal before the MSPB. The MSPB administrative judge scheduled a hearing, cancelled the hearing, scheduled the hearing, and then cancelled the hearing based upon the agency’s motion to dismiss the appeal for lack of jurisdiction (lots of agency time and money!).

The administrative judge dismissed the case and the employee appealed to the MSPB. And he won his appeal. The MSPB said this: “[R]egardless of whether the agency placed the Written Admonishment in the appellant’s Official Personnel Folder or not, he has nonfrivolously alleged that the agency subjected him to a covered personnel action when it issued him the Written Admonishment.” Id. (emphasis added). The MSPB then remanded to an administrative judge for a hearing. Good golly. All that for a letter that really did nothing for the agency.

So what’s an agency to do?  If an agency does not think an act of misconduct merits a letter of reprimand, send a corrective email. While an email has zero disciplinary value (um, just like a lesser letter), it’s also unlikely to generate a grievance or EEO complaint or whistleblower case. It can be a basis for a subsequent failure to follow instruction charge, or show that the employee had notice of a rule.

If you want to write a letter, make it a letter of reprimand. Help yourselves out. Save time and money! Eliminate the lesser letters! You’ll be glad you did. [email protected]

What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

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By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

  • Continuously talking about his sex life.
  • Making sexually suggestive comments in the workplace.
  • When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
  • Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
  • Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
  • When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
  • Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
  • Threatening to hit the Complainant with a cardboard roll.
  • Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
  • Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
  • Hitting her with a yardstick.
  • During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
  • Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
  • Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019).

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. [email protected]