[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




    AN EXAMINATION OF VA'S MISUSE OF EMPLOYEE SETTLEMENT AGREEMENTS

=======================================================================

                                HEARING

                               before the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                     WEDNESDAY, SEPTEMBER 14, 2016

                               __________

                           Serial No. 114-79

                               __________

       Printed for the use of the Committee on Veterans' Affairs





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                     COMMITTEE ON VETERANS' AFFAIRS

                     JEFF MILLER, Florida, Chairman

DOUG LAMBORN, Colorado               CORRINE BROWN, Florida, Ranking 
GUS M. BILIRAKIS, Florida, Vice-         Member
    Chairman                         MARK TAKANO, California
DAVID P. ROE, Tennessee              JULIA BROWNLEY, California
DAN BENISHEK, Michigan               DINA TITUS, Nevada
TIM HUELSKAMP, Kansas                RAUL RUIZ, California
MIKE COFFMAN, Colorado               ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio               BETO O'ROURKE, Texas
JACKIE WALORSKI, Indiana             KATHLEEN RICE, New York
RALPH ABRAHAM, Louisiana             TIMOTHY J. WALZ, Minnesota
LEE ZELDIN, New York                 JERRY McNERNEY, California
RYAN COSTELLO, Pennsylvania
AMATA COLEMAN RADEWAGEN, American 
    Samoa
MIKE BOST, Illinois
                       Jon Towers, Staff Director
                Don Phillips, Democratic Staff Director

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
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both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
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                            C O N T E N T S

                              ----------                              

                     Wednesday, September 14, 2016

                                                                   Page

An Examination of VA's Misuse of Employee Settlement Agreements..     1

                           OPENING STATEMENTS

Honorable Jeff Miller, Chairman..................................     1
Honorable Mark Takano, Acting Ranking Member.....................     3

                               WITNESSES

The Honorable Leigh Bradley, General Counsel, U.S. Department of 
  Veterans Affairs...............................................     4
    Prepared Statement...........................................    33

        Accompanied by:

    Mr. James Manker, Jr., Acting Principal Deputy Under 
        Secretary for Benefits, U.S. Department of Veterans 
        Affairs

    Mr. Steve Young, Acting Deputy Under Secretary for Health for 
        Operations and Management, U.S. Department of Veterans 
        Affairs

Mr. Eric Bachman, Deputy Special Counsel for Litigation and Legal 
  Affairs, U.S. Office of Special Counsel........................     5
    Prepared Statement...........................................    36 
 
    AN EXAMINATION OF VA'S MISUSE OF EMPLOYEE SETTLEMENT AGREEMENTS

                              ----------                              


                     Wednesday, September 14, 2016

            Committee on Veterans' Affairs,
                    U. S. House of Representatives,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:29 a.m., in 
Room 334, Cannon House Office Building, Hon. Jeff Miller 
[Chairman of the Committee] presiding.
    Present: Representatives Miller, Lamborn, Bilirakis, 
Benishek, Huelskamp, Coffman, Wenstrup, Costello, Radewagen, 
Takano, Brownley, Kuster, O'Rourke, Rice, Walz, and McNerney.

           OPENING STATEMENT OF JEFF MILLER, CHAIRMAN

    The Chairman. Good morning, everybody. Thanks for being 
here at today's hearing entitled, ``An Examination of VA's 
Misuse of Employee Settlement Agreements.'' Since 2013, when 
this Committee first began examining accountability measures. 
in earnest, we have seen a recurring practice in which VA 
frequently enters into settlement agreements with employees who 
are resigning or who have been proposed for disciplinary 
actions as opposed to taking the steps to follow these 
personnel actions to their final disposition. These agreements 
are binding legal documents between VA and the employee which 
lay out the terms for, in most cases, the employee's departure 
from the department, and their agreement to drop any current 
grievance or appeal to the Merit System Protection Board, the 
U.S. Equal Employment Opportunity Commission, the Office of 
Special Counsel, or any other entity. While in theory, I think 
these agreements are useful tools to avoid lengthy 
administrative or legal disciplinary processes, it is clear 
that the potential overuse of these agreements stems from 
burdensome civil service laws that make it difficult for VA 
managers to appropriately discipline VA employees.
    In an effort to make the disciplinary process more 
convenient, VA often agrees to pay out thousands of taxpayer 
funded dollars both to the employee and their legal 
representation, as well as other benefits for the employee to 
simply just go away. It is because of this Committee's 
continued investigation into personnel matters at VA, and our 
own healthy skepticism about the lack of transparency in VA's 
potential overuse of these agreements that last October I sent 
a letter to the Secretary requesting copies of every settlement 
agreement that VA had entered into since July of 2014. Earlier 
this year VA complied with my request and provided copies of 
208 settlement agreements for the Committee to review.
    An analysis of these documents paints, what I think, is a 
disturbing picture of VA's use of these agreements and raises 
more serious questions about who really benefits from these 
settlements. Is it the taxpayers or veterans, or is it the 
wayward employee themself? In 72 percent of the settlements 
reviewed, the employee received monetary compensation directly 
to them and/or their attorney which totaled just over $5 
million. The average amount that VA paid to employees as part 
of their settlement was $24,305. The largest settlement that 
was received by one individual, was $225,000.
    Another concern beyond just these large monetary payments 
is that 96 percent of the settlements that we reviewed, the 
discipline that was proposed or finalized against the employee 
was not included in their permanent employee record. I think by 
allowing these records to be left clean and by allowing 
employees to negotiate for a positive or neutral reference for 
future employers, VA management has made it much easier for the 
employee to obtain a job in the future in another Federal 
agency or the private sector irrespective of their behavior at 
VA that caused their termination or their resignation.
    For example, in one case an employee was proposed for 
removal due to reports of hostility in the workplace. The 
employee, however, received $80,000 and a totally clean record. 
I know that Ms. Bradley will remark that VA's use of these 
agreements is supposedly in line with other Federal agencies. 
But as we all remember our parents telling us as a child if 
somebody told you to jump off a bridge, would you jump off a 
bridge? Comparing ourselves to the rest of the Federal 
government is not necessarily the appropriate way to do a 
comparison in this particular instance.
    I also wonder what type of message that VA is sending to 
other good employees when they allow bad employees to settle 
for thousands of dollars just because it would be too expensive 
or possibly embarrassing to litigate. I understand the 
pressures being placed on VA managers to make the right call in 
these situations is immense. There is always a judgment call to 
make as to whether these settlement agreements are warranted. 
But the review of these documents raised three important 
questions that I hope we are going to be able to talk about 
today.
    First, what type of review or training has VA central 
office provided to managers in the field on how to use these 
agreements? What part of the budget are these damages paid out 
of? And who reviews the payments?
    Second, are these settlements being used as a way to buy 
off or to silence whistleblowers whose choice is between 
accepting monetary settlements or retaliation or abuse? I know 
in one case where this appears to be happening where a 
whistleblower has been offered over $300,000 to quit and I am 
interested to hear from Mr. Bachman at OSC about this specific 
case and another similar instance.
    And thirdly and most importantly it would seem logical that 
anytime VA agrees to pay out damages to employees that this is 
at least a tacit admission of guilt on behalf of the agency. In 
these circumstances what type of review or proposed discipline 
does VA provide to the employee who may have retaliated against 
whistleblowers or participated in prohibited personnel 
practices, which created the need for these agreements in the 
first place? While I understand that simply settling with an 
employee in a certain circumstance can be a great tool for the 
department due to current lengthy disciplinary processes 
required by a broken and antiquated civil service system, it is 
this Committee's job to ensure that they are being used 
judiciously and with great care of taxpayer dollars.
    With that, I yield to my good friend the Ranking Member Mr. 
Takano for any opening statement he has.

    OPENING STATEMENT OF MARK TAKANO, ACTING RANKING MEMBER

    Mr. Takano. Thank you, Mr. Chairman. And we are indeed good 
friends.
    We are here as part of our ongoing responsibility to 
oversee the Department of Veterans Affairs to investigate how 
the people's money is being spent by the VA and why.
    During today's hearing we will examine the settlement 
agreements VA has entered into with employees over the past 
three years.
    We want to understand what factors VA considers when 
engaging in Alternative Dispute Resolution, which often results 
in settlement agreements between parties.
    We also want to learn why it is important that local VA 
managers have the flexibility to resolve employee complaints 
based on the individual circumstances at each facility.
    Most importantly, we want to know how VA employee 
settlement agreements have affected whistleblowers in the past 
three years. We can all agree that their courage in coming 
forward in Phoenix, Philadelphia, Tomah and in many other 
places has been crucial to helping to reform the Department.
    We want to make sure these settlements are not being used 
to silence whistleblowers, and that a settlement between a 
whistleblower and the VA does not preclude consequences against 
the offending supervisor.
    So thank you, Mr. Chairman, for giving us the opportunity 
to examine the VA's use of settlement agreements in detail 
today, and to determine whether they are serving the safety and 
well-being of the Nation's veterans, the interests of VA 
employees, and the costs to taxpayers. Thank you and I yield 
back, Mr. Chairman, the balance of my time.
    The Chairman. Thank you very much. I want to welcome our 
first panel of witnesses to the table. With us today is the 
Honorable Leigh Bradley, the General Counsel for the U.S. 
Department of Veterans Affairs, who is accompanied today by Mr. 
James Manker, the Acting Principal Deputy Under Secretary for 
Benefits, and Mr. Steve Young, the Acting Deputy Under 
Secretary for Health for Operations and Management at the 
Department of Veterans Affairs. And we also have Mr. Eric 
Bachman, who is the Deputy Counsel for Litigation and Legal 
Affairs with the U.S. Office of Special Counsel. We appreciate 
all of you being with us today. Your complete written statement 
will be made a part of the record. Without objection, so 
ordered. And Ms. Bradley, we will start with you and recognize 
you for five minutes for your opening statement.

        OPENING STATEMENT OF THE HONORABLE LEIGH BRADLEY

    Ms. Bradley. Good morning, Chairman Miller, Ranking Member 
Takano, and Members of the Committee. Thank you for the 
opportunity to discuss settlement agreements between the 
Department of Veterans Affairs and its employees.
    Addressing employee disputes in the Federal government 
which manifest in complaints of discrimination, allegations of 
prohibited personnel practices, such as whistleblower 
retaliation, and appeals of proposed disciplinary actions, is a 
particularly daunting challenge. At VA managers at every level 
are required to do this in the most cost effective manner with 
the least amount of disruption to the effective functioning of 
the organization as it carries out its statutory obligations to 
our Nation's veterans. Moreover, VA managers must resolve 
employment disputes consistent with the vital goal of building 
and sustaining high performing teams and workplace cultures 
that will achieve excellent outcomes for veterans at good value 
to the taxpayer.
    Congress clearly intended that Federal agencies had the 
authority to settle matters expeditiously without resorting to 
protracted litigation. In the 1990s faced with litigation 
dockets clogging Federal courts and administrative tribunals, 
Congress passed three laws that were designed to reduce the 
cost and time required to litigate many disputes by requiring 
Federal agencies to adopt a policy encouraging the use of ADR, 
alternate dispute resolution, and mandating that Federal trial 
courts make ADR programs available to litigants. As a result 
the judicial and administrative bodies that have jurisdiction 
to investigate and decide Federal employment disputes, and 
these are the Equal Employment Opportunity Commission, the 
Merit Systems Protections Board, the Federal Labor Relations 
Authority, and the Office of Special Counsel, have adopted 
policies and practices that encourage or require settlement 
negotiations.
    VA's use of ADR and execution of settlement agreements are 
not only proper but critical to maintaining a positive 
workplace of high performing teams to carry out VA's mission. 
It is noteworthy that many of these agreements contain no 
monetary payout provision. With nearly 350,000 employees VA is 
simply not resourced to litigate all employee disputes to final 
adjudication without significantly and detrimentally impacting 
service and benefit delivery to veterans. Furthermore, for 
example, in reviewing the most recent data maintained by the 
EEOC the percentage of formal EEO cases settled within VA is 
within two percent of the average percentage of formal EEO 
cases settled in other cabinet departments.
    That said, oftentimes the best course of action is to 
litigate the matter all the way to judgment or final decision. 
VA is not reticent to litigate. Indeed the presumption is that 
we will litigate most personnel disputes. But it is our 
obligation and in the best interests of veterans and the 
taxpayers to consider the merits of settling an employment 
dispute on a case by case basis. In each and every case there 
is a delicate balance that must be struck between expediting 
the resolution of an employment dispute and formal vindication 
of the agency's position in a Federal court or administrative 
board.
    So what is the business calculus used to decide whether to 
litigate or settle? Here are the key factors that VA management 
officials consider. In consultation with legal counsel, 
management officials will evaluate the litigation risk, meaning 
the strength of the evidence and availability of key witnesses. 
They will also consider the monetary cost of litigation. In 
other words this is a key business decision and that will 
include the administrative resources needed to investigate and 
process a complaint, loss of employee productivity during 
depositions and trial testimony, deposition and transcript 
costs, and if VA does not prevail payment of compensatory 
damages, back pay, interest and attorneys fees. Managers must 
also assess the disruption and divisiveness that litigation 
will likely create for the facility's workforce.
    In addition consider that it is not unusual for an EEO 
complaint to take between 18 to 24 months just to get to a 
formal EEOC hearing. That is time in which members of the work 
unit can become mired in the adversarial drama unfolding and 
lose focus on teamwork and achieving mission objectives.
    Management officials also settle cases when it is 
determined that the employee has been legitimately aggrieved 
and it is simply the right thing to do. Over the past two 
years, for example, working with the Office of Special Counsel 
VA has been able to negotiate expedited settlements with 
employees who have been the victims of whistleblower 
retaliation.
    Finally and importantly settlement does not end the 
obligation of the department. If a settlement agreement is 
reached with an employee who filed an EEO or whistleblower 
retaliation complaint, VA has a duty to determine whether there 
was any wrongdoing by another employee that necessitated that 
settlement, and if so what disciplinary action should be taken 
against that responsible management official or offending 
employee. Accountability actions must be based on sufficient 
evidence, which is typically derived from follow on 
investigations conducted by the Office of Inspector General, 
VA's own Office of Accountability Review, other internal VA 
offices, or in many instances involving retaliation the Office 
of Special Counsel.
    Regardless of the entity that conducts the investigation, 
VA managers are expected to hold employees accountable based on 
the evidence provided. To that end VA is making meaningful 
strides in resetting the bar on accountability throughout the 
department and refocusing VA's business processes and culture 
first and foremost on the needs of America's veterans.
    That concludes my oral statement.

    [The prepared statement of Leigh Bradley appears in the 
Appendix]

    The Chairman. Thank you very much, Ms. Bradley. Mr. 
Bachman, you are recognized.

                 STATEMENT OF MR. ERIC BACHMAN

    Mr. Bachman. Good morning, Chairman Miller, Ranking Member 
Takano, and Members of the Committee. Thank you for the 
opportunity to testify today about the U.S. Office of Special 
Counsel and our work with whistleblowers at the Department of 
Veterans Affairs.
    OSC is an independent Federal investigative and 
prosecutorial agency and our primary mission is to safeguard 
the merit principles by protecting employees from prohibited 
personnel practices, in particular from whistleblower 
retaliation. Since 2014 OSC has seen a dramatic increase in the 
number of whistleblower retaliation complaints filed with our 
office by VA employees. As our docket of VA cases has grown so 
too has our rate of securing favorable actions for VA 
employees, which has helped courageous employees restore 
successful careers at the VA.
    Since 2013 the number of VA prohibited personnel practice 
complaints filed with our office has increased by 67 percent, 
while the number of favorable actions that we have obtained in 
these cases during that same timeframe has increased by 232 
percent.
    We are currently investigating approximately 300 
whistleblower retaliation cases related to VA whistleblowers 
across the country and settlements are an important and 
effective tool for OSC to use in handling this large caseload 
for two reasons. First, our top priority is to help the 
whistleblowers as quickly as possible and they can often get 
relief far more swiftly through a settlement than through a 
litigation context. Second, the whistleblower and the agency 
can often be more creative in the type of relief that they 
agree upon than can be done through a litigation context. For 
example, OSC recently mediated a settlement between the VA and 
Brandon Coleman, who is a whistleblower from the Phoenix VA 
medical facility. The settlement included a new position for 
Mr. Coleman and moved him away from his previous chain of 
command. And this was a positive outcome for Mr. Coleman as 
well as the veterans he now serves and would not have been 
possible without OSC's alternative dispute resolution program 
mediating a voluntary settlement between the VA and Mr. 
Coleman.
    Through settlements OSC has helped hundreds of 
whistleblowers at Federal agencies across the government. And 
at the VA alone we have secured 169 favorable actions in the 
last two years. We are proud of OSC's role in protecting 
whistleblowers and helping to put employees back into their 
jobs so they can continue their important service to veterans.
    When a whistleblower and the VA settle a case their 
settlement does not necessarily end OSC's role in the case. OSC 
recognizes that disciplining managers who retaliate against 
employees is an important tool to promote accountability. 
Accordingly, even where a whistleblower settles their 
individual claim, OSC may still investigate the case for 
potential discipline against alleged retaliators. For example, 
in whistleblower retaliation cases at the VA's Puerto Rico 
facility OSC has investigated and obtained corrective actions 
for several whistleblowers. Although these cases have either 
settled or are in settlement negotiation, OSC is continuing to 
actively pursue its investigation of several high level 
officials at the Puerto Rico VA for potential discipline. 
Notably, even though it takes significantly more time and 
resources to complete disciplinary investigations, in the first 
four full years of Special Counsel Carolyn Lerner's tenure, 
which was from 2012 to 2015, OSC more than doubled the number 
of disciplinary actions taken government-wide as compared to 
the previous four years.
    We appreciate the Committee's attentions to the issues we 
have raised and your interest in our efforts to protect and 
promote VA whistleblowers. I thank you for the opportunity to 
testify and am happy to answer your questions.

    [The prepared statement of Eric Bachman appears in the 
Appendix]

    The Chairman. Thank you very much, Mr. Bachman. You had 
referenced the issue about the supervisor who dressed up as a 
particular employee and that that employee has now been moved 
to a different job, but, Ms. Bradley, what I want to know is 
what happened to the people who actually retaliated against 
this person? Was there disciplinary action taken against them? 
Could you--microphone?
    Ms. Bradley. What I want to tell the entire Committee that 
what we have been working very hard on is a process to hold all 
people that have engaged in some form of either retaliatory 
behavior, discriminatory behavior, or acted inappropriately, 
accountable. So while I am not able to actually talk about 
specific accountability actions in a public hearing--
    The Chairman. No I just want to, just answer the question. 
Was anybody held accountable for what they did?
    Ms. Bradley. They either have been held accountable or will 
be held accountable through the process that we have put into 
place, which again I want to go back to. We have got to do a 
follow-up investigation to get evidence that will be the basis 
of the accountability action so that it will be sustainable on 
appeal. We have got to make sure that these actions stick.
    The Chairman. Is a photograph of somebody dressed up as an 
employee and making fun of them not good enough evidence?
    Ms. Bradley. Again, I am not able to talk about the 
specific actions that we have or intend to take in that 
particular matter. But as we have said before, we are happy to 
brief you in private. And I believe we have had a variety of 
leaders brief the Committee on individual cases in private.
    The Chairman. I also want to talk about the Puerto Rico 
issue with Ms. Lopez. I think it is in the news these days. 
According to media reports, she was originally fired for 
failing to discipline a VA whistleblower that was disclosing 
legitimate yet damaging information about a senior VA manager 
at the Puerto Rico VA Medical Center. And following further 
investigation by OSC they concluded that Ms. Lopez should be 
reinstated. So has Ms. Lopez been reinstated? And if not, why 
not?
    Ms. Bradley. Do you want me to take that first? I think we 
can answer this in concert with one another. We are in the 
process of conducting two follow-up investigations to get the 
evidence that we need. The Deputy Secretary has been briefed at 
least preliminarily on what we have learned so far. And we will 
be prepared to tell the Committee what the final accountability 
resolutions are in this matter as well as some related matters 
at that facility I think in very short order.
    The Chairman. Can you tell me when this actually happened? 
I do not have a date, so I am, I am sure the Committee does.
    Ms. Bradley. I cannot.
    The Chairman. I am sure the OSC can if you cannot.
    Mr. Bachman. Yes. The actions with Ms. Lopez occurred 
during 2014. When Ms. Lopez filed a case with OSC we took a 
look at the available evidence and determined at that time that 
we believed a stay of a proposed removal of Ms. Lopez was in 
order. We discussed that with the VA. The VA did agree to stay 
it, and by that I mean to hold off on actually removing Ms. 
Lopez, while we continued our investigation. So she has been 
reinstated. My understanding is that they are currently in 
settlement negotiations.
    The Chairman. So the press has reported there is a $305,000 
settlement agreement on the table if she agrees to resign from 
VA. Is that true?
    Ms. Bradley. Again, Mr. Chairman, I really am not at 
liberty under the Privacy Act to discuss the specifics of the 
case. But I would be happy to meet with you in private and talk 
about it, or bring over experts that are dealing with that case 
right now and talk to you or the Committee about that.
    The Chairman. Mr. Bachman, can you discuss it?
    Mr. Bachman. Because it is an ongoing open case with active 
settlement negotiations between Ms. Lopez, her attorney, and 
the VA, I do not believe I should discuss the specifics.
    The Chairman. Okay.
    Mr. Bachman. I do not want to undermine their opportunity 
to settle the case.
    The Chairman. Okay. Well I do not want to undermine their 
opportunity to settle the case either. But it is my 
understanding that the first offer was $100,000. It has now 
ballooned to triple that in this process. And, you know, I 
just, I want to know how VA can expect to build a culture that 
encourages whistleblowers to come forward when VA takes such a 
hard line against those like Ms. Lopez.
    Ms. Bradley. May I answer that?
    The Chairman. I am looking right at you.
    Ms. Bradley. This is a key priority for the entire 
leadership team of VA. So it started two years ago with 
Secretary McDonald saying that we would change our culture and 
it would be an open culture, one that would be free of fear, 
that would encourage people to come forward and raise concerns. 
As a result we have seen a dramatic spike in the number of 
people who have been willing to come forward and raise 
concerns. He did this by making the somewhat unusual public 
statement repeatedly about giving out his private cell phone 
number. And then he told all of us as senior leaders that he 
expected us to do something very similar. To make sure that all 
of our employees know that first and foremost it was our sacred 
obligation to ensure that the environment was a place where 
people could raise--
    The Chairman. Thank you. My time has expired, and I 
appreciate it very much. And unfortunately Mr. McDonald's phone 
goes to voice mail, just like a lot of the hotlines that they 
have right now which I think is very unfortunate. And one quick 
question. Does it make sense that over 96 percent of the 
agreements that were made have allowed employees to leave the 
agency with a totally clean record?
    Ms. Bradley. I do not know that that is accurate. But I can 
tell you that a clean record--
    The Chairman. Just suppose that it is accurate.
    Ms. Bradley [continued]. I can tell you--
    The Chairman. If it is accurate does it make sense, yes or 
no, that 96 percent would leave with a clean record?
    Ms. Bradley [continued]. I can only speak to what our 
current policy is. Which is that clean records, while they do 
occur every once in a while, they are--
    The Chairman. Ninety-six percent of the time.
    Ms. Bradley [continued]. I am speaking from my time as the 
General Counsel. They are, MSPB disfavors them, my attorneys 
disfavor them. And furthermore what a lot of people do not 
understand is that along with a clean record usually comes a 
request for VA to provide what is called neutral reference. And 
anybody at any other Federal agency that calls VA and says, 
well can you provide a reference on this individual? When we 
say, well, we can provide you a neutral reference, that means 
something to them. They know that there is something that has 
been going on with that person in the workplace.
    The Chairman. Thank you very much. Mr. Takano?
    Mr. Takano. Yes, I am looking for a little context for some 
of this. Are the settlement agreements the VA has entered into 
in the recent past, from 2014 to the present, more costly or 
more frequent in comparison to other Federal agencies and the 
private sector? Go ahead, counsel.
    Ms. Bradley. Well you have to understand that employment 
disputes really fall into three to four buckets. So let us 
start with EEO complaints. Those are complaints of 
discrimination based on race, sexual orientation, age, they can 
be harassment related complaints. Those make up the lion's 
share of employment disputes in the Department of Veterans 
Affairs, and I believe in other Federal agencies. So in looking 
at the data, and this is all reflected not by me. If you look 
at the EEOC's Web site they have annual reports and they put 
the data on their Web site. And it shows that the rate of 
settling cases, EEO related cases, by VA is within, as I said 
in my oral statement, two percentage points or so of all the 
other cabinet departments. So that is one bucket of cases.
    If you look at the MSPB cases, those are the ones that go 
to the Merit Systems Protection Board. The ones that are 
actually going to be litigated, they too, in their annual 
report, they show the incidence of settlement amongst all of 
the Federal agencies. And you will see that our incidence of 
settlement is around 70 or 71 percent, which is very closely 
aligned with the, I will call them our 12 sister agencies. So 
the key is there is nothing that is going on at VA that is out 
of whack with respect to the practices of other cabinet 
departments.
    Mr. Takano. But I am interested in private sector 
comparisons.
    Ms. Bradley. Well I spend a lot of--well, not a lot. I 
spent some time in the private sector, and I was also the Chief 
of Staff of the American Red Cross for about three years. And I 
can tell you that the CEO of a company that I worked for as a 
lawyer or at the Red Cross, from our perspective almost never 
was protracted litigation good for the bottom line. It is very, 
very costly to any entity to engage in litigation and 
everything that leads up to litigation for 18 to 24 months.
    Mr. Takano. Well, Ms. Bradley, this last question that the 
Chairman asked about references, neutral references. I seem to 
recall from my days as a member of the Board of Trustees at 
Riverside Community College that as an employer if we gave 
negative references, there was some liability that accrued to 
the employer. Is that true also with Federal agencies?
    Ms. Bradley. I do not want to say that there is. I think it 
is always a concern, that you could be sued for it. I do not 
know if it is a legitimate suit but I think a lot of senior 
managers are afraid of that. But I still think the important 
point is this notion that VA regularly engages in a clean 
record settlement is a misnomer. We are moving away from them. 
We have not completely eliminated them but we are moving away 
from them. Just as we are moving away from non-disclosure 
agreements. I just recently sent out a memo to all of the 
attorneys in OGC and said that non-disclosure agreements are to 
be disfavored. And in the rare cases where we feel like we need 
to enter into one, it should be limited just to the specific 
terms of that settlement.
    Mr. Takano. Great. I want to move on to another question 
and my time is limited. Please share with the Committee the 
nature of what settlement agreements represent. Are settlement 
agreements an admission of guilt by either side?
    Ms. Bradley. I guess at their very core they represent a 
mutual and final resolution of an employment dispute. So if you 
litigate, if you go all the way to an adjudication before the 
EEOC or the MSPB, what happens there is those bodies have to 
attribute fault. And sometimes it is important for the agency 
to go all the way to one of those boards or to a Federal court 
in order to attribute fault. But oftentimes employment disputes 
are something as simple as a person says, I did not get a 
promotion and I feel like I was unfairly treated. I feel like 
maybe I did not get the promotion because I am gay, or because 
I am an African American. And so you want to try, it is in your 
best business interest to talk through those issues at the most 
local and informal level possible. Because you really want to 
get that person back onto the team working on the agency's 
mission and not being kind of sidelined and engaged in, well, 
you know, I have a deposition next week, or my litigation is 
coming up. So it is the mutual and final resolution of a matter 
that counts. But it does not tie our hands. We are able to then 
pursue accountability.
    Mr. Takano. Mr. Chairman, will you permit me to ask one 
follow-up? Thank you. I appreciate that. So I just want to make 
sure, as we all do, that settlement agreements between the VA 
and whistleblowers, are really a mechanism by which both 
parties can officially come to resolution in a difficult 
situation. But I want to make sure, as we all do, that 
settlement agreements between the VA and whistleblowers do not 
preclude accountability for bad supervisors. In the case of a 
settlement between the VA and a whistleblower, does the VA 
still have a duty to determine wrongdoing by an employer that 
necessitated the settlement?
    Ms. Bradley. Absolutely, we have a duty. And there is 
nothing in the settlement agreement that precludes us from 
pursuing accountability. In fact that is the most important 
piece I would argue in this whole process. That is why we have 
the various mechanisms for people to raise concerns and then to 
use ADR to try to resolve their concerns. But it is up to us to 
make sure that we have the right leaders in place and that we 
address workplace culture issues. It is our obligation to 
pursue accountability. And remember the agreement, the 
settlement agreement, is between the aggrieved party and the 
agency. Not between the person who was engaging in the 
wrongdoing. So yes, the agency is not waiving its rights in any 
way, shape or form in entering into that agreement.
    Mr. Takano. Okay. Mr. Chairman, my time is up. But I hope 
somebody will ask a question related to whether the agency has 
pursued further discipline after a settlement has been reached 
with the supervisor.
    The Chairman. Thank you very much. Mr. Lamborn, you are 
recognized.
    Mr. Lamborn. Thank you, Mr. Chairman, for having this 
hearing. Thank you for all the witnesses for being here. Ms. 
Bradley, would you make any changes to existing civil service 
laws to make it easier to discipline employees so that managers 
are not trapped in a system that, at least it appears to us on 
the outside, that settlement agreements are used because 
nothing, there is no other avenue to hold someone accountable?
    Ms. Bradley. So there are some important and I think 
helpful provisions in the House bill on accountability, as well 
as in the Senate bill on accountability, that our department 
supports. I think that we have made clear in our public 
statements and in our testimony that we do agree in strict 
accountability measures.
    Mr. Lamborn. So specifically what would you like to see 
changed?
    Ms. Bradley. I guess I am concerned about the disparity for 
VA senior executives that the bill language affords. So I have 
spent most of my Federal career at the Department of Defense. 
So for example, recently I was trying to hire our top 
procurement lawyer and so where did I want to go? I wanted to 
go to DoD and recruit there because that is where they do the 
most contracting work. So I wanted to go back to the Department 
of the Navy, where I had worked, or I wanted to go to the 
Defense Logistics--
    Mr. Lamborn. Okay, hurry up. Be specific. My time is 
running out.
    Ms. Bradley. So specifically when I reached out to people 
and said I want you to come to VA, I need your help, they said, 
yeah, but you treat senior executives differently at VA. And so 
why would I leave my department? So that is what I am concerned 
with--
    Mr. Lamborn. No, you are talking about the status quo.
    Ms. Bradley [continued]. --is the disparate treatment of 
senior executives.
    Mr. Lamborn. You are not, you are saying the status quo is 
broken. And I am saying what changes--okay, I am not going to 
get a good answer from you on that so let us move on to 
something else. Is it discretionary with the VA in a settlement 
agreement to remove derogatory information from an employee's 
permanent record or not to allow it to go into the record in 
the first place?
    Ms. Bradley. Well that is the purpose of a clean record. 
You enter into an agreement as to exactly what will be 
reflected in the--
    Mr. Lamborn. So it is a negotiating tool?
    Ms. Bradley. It is a negotiating tool, which is why we have 
not completely outlawed it. We frown on it. But there are some 
instances where we want the ability to be able to do that to 
settle the case.
    Mr. Lamborn. We on the Committee here, we, I think everyone 
here wants, number one, the taxpayer to be protected, the 
dollars to be spent for the veterans' needs, and for justice to 
be done. Innocent people not to be punished or guilty people to 
be held accountable. And if the withholding of derogatory 
information from someone's record is a negotiating tool, it 
seems to me that that is liable for abuse. Have you ever seen 
cases where--
    Ms. Bradley. I think that is--
    Mr. Lamborn [continued]. --something should have been in 
someone's record that got removed that you think the next 
employee should have known about? Especially if it was a 
Federal employer?
    Ms. Bradley. I think you are exactly right. I think that is 
why we have moved way from the use of clean record settlements. 
I think that is why the MSPB frowns on them. So I think that 
you raise valid points. I just, I do not know what to say other 
than we do not use them regularly as has sort of been depicted 
that that is the way we do business.
    Mr. Lamborn. Thank you. Mr. Bachman, how would you comment 
on this topic?
    Mr. Bachman. I would note that the ability to give an 
employee a clean record through settlement negotiations, when 
we are talking about a whistleblower who has come forward and 
part of the retaliation they believe they have suffered is 
derogatory information in their personnel file, that is a 
negotiation tool that we at OSC do like to have on the table 
for the parties because it is important that it not follow them 
for the rest of their career just because they had a 
retaliatory supervisor who placed it in their folder. So we, I 
would just want to make sure that that ability is taken into 
account from OSC's perspective as well. That this clean record 
provision in settlement agreements often does help the 
whistleblower themselves.
    Mr. Lamborn. Would you recommend any changes in the 
regulations or laws to make sure that that is not abused?
    Mr. Bachman. I do not have any particular specific 
recommendations on the legislation. I can tell you one 
observation, one area that we have mentioned that could be 
improved is the idea of having a permanent office within the VA 
whose statutory mandate is to be identifying potential problem 
areas, whether it is in patient care or whistleblower 
retaliation issues, to make sure that they can proactively 
respond to those ongoing or upcoming problems instead of having 
to react to it once it has already spiraled out of control. So 
that is the type of more structural improvements we think would 
be extremely helpful.
    Mr. Lamborn. Okay. Thank you all.
    The Chairman. I would note for the members that the 208, I 
think it was, or 203 that we looked at date back to July of 
2014. Ms. Bradley, you came in I think in December of 2014. 
Ninety-two percent, 96, I am sorry, higher, 96 percent of those 
were clean records. That is the records that were provided to 
us. So I am having a hard time figuring out how we are doing 
away with it when we actually are almost at 100 percent clean 
records. Mr. O'Rourke?
    Mr. O'Rourke. Thank you, Mr. Chairman. Mr. Bachman, when 
you were citing the changes since 2013 and you mentioned 230 
percent plus change in favorable actions, I believe over 65 
percent more claims being filed, is that a sign of success? 
Does that mean that there was this latent demand to be able to 
do these things and people did not feel comfortable doing it 
before and now post-2013 they do? Or is it a sign that there is 
a problem within the VA because this many more people feel like 
they have a legitimate whistleblower issue that they want to 
bring forward? How do we read that? You seem to cite it as kind 
of a success.
    Mr. Bachman. I think there are a variety of factors at play 
here in terms of why we have seen this spike in VA 
whistleblower complaints with our office. And I do not think 
there is any one factor in particular. But one of them 
certainly is the fact that the VA did become the first cabinet 
level agency to become certified under OSC's process. And what 
that certification means is they have taken some specific steps 
to make sure that their employees are educated about their 
rights and responsibilities under the various whistleblower 
protection laws. So this may have alerted VA employees about 
their opportunity to come to OSC and that may have increased 
their comfort level about doing that.
    Another factor I think that plays into this are VA 
whistleblower are often blowing the whistle about serious 
patient care issues.
    Mr. O'Rourke. Mm-hmm.
    Mr. Bachman. And those are the types of issues that get 
employees motivated to come forward and, you know, they feel 
like it is a really important issue that needs to be brought to 
light. And then I think the third factor is that OSC has been 
helpful or has been successful in helping whistleblowers. And 
whistleblowers when they are making disclosures, when they are 
blowing the whistle, are starting to see results. And so I 
think that is also contributing to their likelihood to come to 
OSC.
    Mr. O'Rourke. Got you. Ms. Bradley, two things from Ms. 
Lopez's case in Puerto Rico. Because I know you cannot describe 
the case in detail and cannot respond to our specific questions 
about it, but just to extrapolate from that anecdote. Do we 
have a problem within the VA of using settlement agreements to 
stifle whistleblowers? To make them go away?
    Ms. Bradley. I do not think that that particular case would 
support that proposition. I think the proposition that is of 
great interest to me and to Bob McDonald and to Sloan Gibson is 
once we resolve the retaliation piece, what accountability 
measures will we take with respect to not just one leader but 
maybe several leaders? And how do we do that, and on what 
basis? And how do we get the evidence and how do we pursue 
those accountability actions?
    Mr. O'Rourke. We are, and I know this is tough because we 
cannot talk about the details, but you and I are drawing two 
different conclusions from this. My conclusion is this 
employee, from the facts that I understand, was trying to do 
the right thing. Her superiors were trying to get her to do the 
wrong thing. In an effort to make her go away, she was first 
offered $150,000 and they doubled it to over $300,000. That 
seems like using settlement dollars to make somebody go away is 
a problem for upper management. So my question still stands. Do 
we have a problem in the VA of using these settlement 
agreements to stifle whistleblowers or others who are trying to 
call out wrongdoing? And as Mr. Bachman said, if someone is 
finding that patients are not being taken care of, if wait 
lists are being manipulated, are they going to be paid to go 
away?
    Ms. Bradley. Let us talk about the case just sort of 
hypothetically. If we had a situation like this one I think 
that we should be concerned that that is at least what a 
reasonable person would conclude.
    Mr. O'Rourke. Do you feel that that is a problem within the 
VA?
    Ms. Bradley. I believe it is anomalous.
    Mr. O'Rourke. Here is the deal. I do not know, I do not 
have the data that the Chairman has and I want to see what he 
is looking at. I do not know if this, is this one anecdote that 
does not represent the whole? Is this the exception? Or is this 
prevalent enough that we have a problem within the system? And 
so that is the question I am asking, not, I do not want to talk 
hypothetical. Do you from your position, knowing about what 
goes on VA-wide, do you see a problem in management, not you, 
but people at the level that we are talking about in Puerto 
Rico and elsewhere, are they using these settlement agreements 
to stifle people who are trying to call attention to issues 
within the VA facilities nationally?
    Ms. Bradley. I think that this, this issue is anomalous. I 
see great progress being made and I measure that by the numbers 
of people who feel free to come forward.
    Mr. O'Rourke. So you have seen nothing from your position, 
which is the best position from which to understand whether or 
not we have a problem, you do not think we have a problem?
    Ms. Bradley. I do not want to say that we have a problem 
but I think it is worthy of us looking very hard at for the 
next period of time, like maybe two more years, to look at and 
ask that hard question. I do not want to say there is no 
problem. I think we are making a significant culture change in 
our department and culture change is hard and it takes a long 
time. And I think it is incumbent upon every leader to be 
asking that kind of question. You know? Are we taking the easy 
way out here? Do we want this person to still work for VA? And 
who was willing to sort of pay off the whistleblower? What do 
we think about him or her, and should they be a leader in our 
department? I think those are very important questions that we 
need to keep asking on a regular basis.
    Mr. O'Rourke. Okay. I am looking forward to the answer. 
Thanks.
    The Chairman. Mr. Bilirakis, you are recognized.
    Mr. Bilirakis. Thank you, Mr. Chairman. A question for the 
panel, is there someone currently tasked with the 
responsibility of what overseeing these settlement agreements, 
to make sure that they are appropriately entered into and used? 
And then is it the Office of General Counsel, Special Counsel? 
Someone with the VA? I also want to know if there are audits 
being conducted and if these audits are available to the public 
or to the VA Committee as well. So who wants to go first?
    Mr. Manker. I will take that question, Congressman. VBA has 
several levels of review prior to entering into settlement 
agreements. HR Directors, EEO Managers, the Office of General 
Counsel, the Office of Regional Counsel, as well as senior 
leadership are all consulted for guidance before entering into 
these agreements. We do that to make sure that they are correct 
in terms of legal sufficiency, they are cost effective, and 
also in the overall interest of our employees, our veterans, 
and our taxpayers. So we look at it through all those lenses. 
Additionally at the department we do compliance reviews to make 
sure that settlement agreements were completed in compliance 
with the rules that we have in place to govern these things.
    Mr. Bilirakis. Now let me ask you, is there one person 
specifically responsible for the oversight?
    Mr. Manker. I would submit to you that from each of our 
administrations we have responsibility across the leadership 
team to look at and review settlement agreements.
    Mr. Bilirakis. Are audits being taken place and are they 
available to the public?
    Ms. Bradley. I am not really sure what you mean by audits. 
Certainly the costs have to be monitored by the individual 
administration because the costs come out of their operating 
budgets. But I do not, I do not exactly know what you mean by 
auditing a settlement agreement.
    Mr. Bilirakis. Is this information available to the public?
    Ms. Bradley. Generally not.
    Mr. Bilirakis. Okay, we will get onto the next question. 
Ms. Bradley, when these payouts occur do the funds come from 
the central office operation budget or does it come from that 
particular facility?
    Ms. Bradley. I am going to turn that over to my colleagues 
from VHA and VBA.
    Mr. Bilirakis. Okay.
    Mr. Manker. So Mr. Congressman, in my former role I served 
as the CFO for VBA and I can tell you that settlement 
agreements come out of our operating funds so, our very 
precious operating funds that we use to adjudicate claims. So 
again, the reason why we take these things seriously and make 
sure that we have all the Is dotted and Ts crossed is because 
it comes out of the same funds that we use--
    Mr. Bilirakis. It comes from the central office's operation 
funds, is that correct?
    Mr. Manker [continued]. It comes from our operating 
account, that is correct. We like to--
    Mr. Bilirakis. From the individual facility?
    Mr. Manker. It depends on the size of the agreement. But in 
general it comes from our general operating expense account, so 
from our main appropriation.
    Mr. Bilirakis. Are any of the concerns, do you have any 
concerns that the funds diverted from these facilities, if it 
comes from the particular facility, can negatively impact 
veterans receiving care at that particular facility?
    Mr. Young. So let me address that from VHA--
    Mr. Bilirakis. Please.
    Mr. Young [continued]. --as a prior medical center 
director. Those funds come directly from the individual medical 
center's operating funds. And consequently the medical center 
directors that work in consultation with the attorneys look 
very hard at every decision to make certain that it is a good 
business decision because it is so important because it is 
coming out of the medical center's funds. So the direct answer 
to your question concerning where those dollars come from is in 
VHA from the medical center level.
    Ms. Bradley. And if I could add to that, so I understand 
your point is, gosh, this money is coming out of operating 
budget accounts and that could harm veterans. But it is a 
business decision. So you have to evaluate how much are you 
spending in settling the case versus how much money would need 
to be spent to adjudicate it all the way to a final resolution. 
Like what are all the expenses associated with litigating the 
case? That is the business decision that these gentlemen and 
other leaders in VHA, VBA, and Cemeteries have to make. So it 
is not just simply the, you know, what would the settlement 
cost? It is what would this cost us to litigate for some number 
of months or years?
    Mr. Bilirakis. Well again, that point is well taken. 
However I am concerned that there is not enough oversight and 
you do not have one particular individual appointed to oversee 
these settlement agreements. So I would like to work with you 
on that. I yield back, Mr. Chairman. Thank you.
    The Chairman. Ms. Brownley, you are next.
    Ms. Brownley. Thank you, Mr. Chairman. Ms. Bradley, I 
wanted to follow-up with you. In your opening comments you 
talked about accountability action that it sounds like you are 
going to introduce here pretty soon. And you said that you 
could not really speak about it, but I was wondering if you 
could just describe to me what, you know, what this looks like 
generically in terms of accountability actions after these 
disputes are settled?
    Ms. Bradley. What I was referring to is a process, where we 
get into a rhythm, a battle rhythm if you will, which is we ask 
our investigators to give us sound evidence so we can bring an 
action, and it can be any, you know, variety of disciplinary 
action if appropriate and then be able to pursue that all the 
way through the appeals and have that action sustained. That is 
what I was referring to. But there is something I would love to 
share with the Committee that I think will help senior leaders 
and managers with accountability. It is something that is being 
developed in the human resources and administration part of VA.
    I have behind me, I believe behind me, is the Deputy 
Assistant Secretary for the Office of Resolution Management. He 
has been using what I call business intelligence. It is really 
using data analytics to be able to give leaders better 
intelligence about what is happening at their facility or group 
of facilities. It is going to give in concrete terms some ideas 
about how many complaints have been raised or lodged at this 
particular facility over some period of time? How many of those 
cases were settled? What is the cost of settlement? This is 
going to give us some ability to see where we might have 
problems with leaders or we might have a culture that is not 
conducive to a high performing workforce. That is going to be 
rolled out in November. So I am really excited about this 
because I think this helps us get at accountability in a more 
meaningful way.
    We have a lot of medical center directors and RO directors 
who are in acting positions. They come into a facility, imagine 
coming into Phoenix right now and trying to understand the lay 
of the land over like the past five years. You do not, we have 
not given them good data analytics to be able to see where they 
have strong leaders and where they have room for improvement. 
So that is something, thank you for giving me the opportunity 
to talk about it, we would like to come over and share this 
with the Committee, maybe give the Committee a demonstration 
about how this data science project is going to work in 
practice.
    Ms. Brownley. Thank you. So you know, I think, you know, I 
think we all can agree and we all do agree that the VA needs a 
cultural shift and a cultural change. And it feels to me as 
though the work that you do is really very much at the heart of 
that shift within the organization. And I think it is a little 
concerning to me where it seems as though in this settlement 
practice there is a focus on time and money, and I understand 
that. I mean, I understand that at one level. But it seems like 
that is the emphasis and rather than, you know, on the 
principle and the accountability. And so, you know, I do not 
think you are going to get to the cultural shifts and changes 
that need to really permeate deep into the organization, you 
know, unless we are focused more on the principle and the 
accountability. And yes, time and money, and I agree with your 
argument that we want those operating expenses to go to our 
veterans. But on the other hand, you know, this cultural shift 
within the organization is I think very, very important. And I 
think the other measure you have just mentioned, one issue that 
it sounds to me more of a proactive measure that your 
department is taking that you just described to me. And I am 
wondering if there are other, you know, proactive measures 
coming out of your department that will help to, you know, 
anticipate some of these personnel issues so that they do not 
happen, so that there is that strong cultural change that we 
are a veteran-centric operation and whistleblowers are to be 
safe and secure and recognizing that they are only trying to 
move the organization forward in a positive way for veterans. 
So if you could talk a little bit about, you know, the focus on 
principle and accountability and some more proactive measures 
you are taking?
    Ms. Bradley. I really appreciate your question. When I 
arrived at VA almost two years ago it was not just my 
assessment, it was sort of a general assessment, that we had a 
problem in terms of training our first, you know, first line 
supervisors and managers. And I mean training them, especially 
about whistleblower activity and protecting whistleblowers and 
not retaliating against whistleblowers. So we started to do 
some training. You know--
    Ms. Brownley. My time is up so I, well maybe we can talk 
offline. So I yield back.
    The Chairman. Thank you very much. Mr. Huelskamp, you are 
recognized.
    Mr. Huelskamp. Thank you, Mr. Chairman. A few 
clarifications, if I might, Ms. Bradley? You do note in your 
written statement that the VA does not have a national policy 
on these issues. Can you describe the type of training for the 
decision makers on these particular policies?
    Ms. Bradley. Again, I am really pleased to talk about this 
because I think we have made some real progress. When I first 
arrived at VA this became a, like a central focus for me. I 
even myself trained, but it was telephonic, all of our medical 
center directors on whistleblower, the laws, what a 
whistleblower is, what it means to actually take action against 
a whistleblower. Then we decided, okay, the training was good 
but it really was not sufficient to get our supervisors and 
managers ready to do the right things. So we worked closely, we 
partnered with the Office of Special Counsel. Actually Mr. 
Bachman and I worked on this with Carolyn Lerner. They helped 
us develop what I think is a fabulous module on whistleblower 
and whistleblower protection. And--
    Mr. Huelskamp. Ms. Bradley, if I might interrupt? Let me 
restate the question, and I am very interested in the 
whistleblower. But these settlements are not solely 
whistleblower agreements, is that correct?
    Ms. Bradley. That is correct.
    Mr. Huelskamp. Okay. But for what type of training do you 
have just for general employee settlements for, and who exactly 
makes the decision? You mentioned the medical director. Is 
there a legal counsel in every clinic that is making this 
decision and writing these agreements?
    Mr. Young. So I come to this position most recently from 
being a medical center director so I can speak to my 
experiences as a medical center director. And I always worked 
in and we collectively always worked very tightly with legal 
counsel in the field that provides us the information about the 
risks of the case, the strengths of the case, the likelihood of 
prevailing, the likelihood of not prevailing, and what the cost 
may be so that we can make a business decision. But that is 
done in very tight concert with legal counsel that provides 
that expertise.
    Mr. Huelskamp. Local, regional counsel, or the central 
office?
    Ms. Bradley. It is generally the local counsel. We have 
senior executive service lawyers assigned across the country. 
But sometimes in an unusual case they will consult with central 
office because we have national experts in--
    Mr. Huelskamp. But you do not have a national policy?
    Ms. Bradley. We do not, but we do not see--
    Mr. Huelskamp. Is there a memo here that can describe what 
you sent out to the, I do not know what Mr. Young's background, 
or were you a doctor or an attorney? Or what was your 
background as the medical center director?
    Mr. Young. I have been an employee of VA for approaching 40 
years working from a dishwasher to a medical center director.
    Mr. Huelskamp. Okay. Do you have any legal background?
    Mr. Young. None.
    Mr. Huelskamp. But you are the final individual that signs 
off on these employee settlements?
    Mr. Young. At my medical center I would be the deciding, 
the decision maker. But I would also, and again widespread 
practice within VHA, any case that would be a high dollar 
value, a high visibility, I would certainly bump that up to my 
network director and the network director for a particularly 
high value, high visibility would bump it even higher.
    Mr. Huelskamp. Before the Chairman's request, was there any 
consolidation or report to central office on these employee 
settlements across the country? Is there a threshold where you 
said this is an important level, $100,000? What was the 
threshold?
    Mr. Manker. So there is not a threshold per se. Those that 
revolve around EEO there is in fact a reporting process for 
those. I believe that report comes here to Congress as well.
    Mr. Huelskamp. EEO even if the complaint is withdrawn? Does 
that end up, that does not end up in the Congressional report. 
Most of these settlements, if I understand correctly, they 
withdraw all of those complaints, correct?
    Mr. Manker. I cannot speak for that, that part of that.
    Mr. Huelskamp. Okay. I thought that was somewhere in the 
report. And lastly, I am trying to figure that out. I am trying 
to figure out who makes the decision, but there is no national 
policy. But is there a memo you can provide to the Committee 
that you sent out to all the medical directors, saying we have 
got dozens and dozens of employee settlements, here are the 
national guidelines? Is there nothing at all we can look at?
    Ms. Bradley. Again, we do not have national guidelines. But 
we have longstanding practices of how we work together to 
evaluate each individual case on its merits. That is done in 
close consultation with lawyers. In unusual cases that is done 
in consultation with lawyers in the central office. From my 
experience in other Federal cabinet department agencies, I do 
not remember there being a national policy. Perhaps there is. 
But I can tell you what is important is are they getting the 
right level of scrutiny, are we paying attention? In the EEO 
arena, for example, there are some triggers or threshold 
amounts that require reporting up to--
    Mr. Huelskamp. Yeah, and I, and that makes sense. But if 
the complaints are withdrawn, as a function of the settlement, 
how do they ever, do they ever move up? And lastly, and we will 
come back hopefully another round of questions, think about 
that, but the initial response to us was we have more 
whistleblower settlements and that is the reason for this 
sudden increase. I understood from the Secretary that we had 
adequately trained in the last two or three years to take care 
of that. But if I am understanding here this would suggest we 
have, we are not treating our whistleblowers fairly if suddenly 
this is the reason for many of these settlements. And we are 
out of time. Think about that. If we come back around I will 
reask the question. I yield back, Mr. Chairman.
    The Chairman. Thank you, Mr. Huelskamp.
    Mr. Walz, I apologize, you had stepped back in the room and 
you are now recognized.
    Mr. Walz. Thank you, Chairman. I appreciate it.
    Thank you all for being here. And I know that getting away, 
it is important to not get into the specifics, although at many 
times that what we want to ask is to get away from the sweeping 
generalizations. But maybe because you are experts in this and 
especially labor law, to help us in what we are getting up 
against and what we hear and you are hearing in some of the 
questions is, maybe go to you, Ms. Bradley, first and then, Mr. 
Bachman, help me with this, when I hear this from constituents, 
when they hear some of these stories, and whether they are 
egregious or they are the norm, that is our job to figure out, 
but when they say, you know, if this kind of stuff happened in 
the private sector, they would be gone tomorrow, there wouldn't 
be anything, they would be gone tomorrow; is that a true 
statement? Are you at a different standard, is there 
differences there?
    And again I understand striking that balance between doing 
the right thing, having managerial authority and due process. 
How would you respond to that when someone walks up to one of 
us and says that?
    Ms. Bradley. I think it is a fair statement that there is 
less regulation in the private sector surrounding personnel 
disputes or employment disputes; I think they are regularly 
settled. I know from my law firm days in seeing them that they 
were regularly settled.
    So I think that there is a perception that there is less 
regulation, that there is less chance of litigation. There are 
more rights for public or Federal employees, I suspect, I don't 
think anybody would disagree with that, than in the private 
sector, but I think we have made some good strides in trying to 
move more expeditiously in our accountability actions and I 
think that the American people deserve that.
    Mr. Walz. And so we should, we also take then--and I don't 
have the data on this to know of protections on wrongful 
terminations or some of the things we are talking about, and 
whistleblowers, that you might not get in that. So with the 
ability to sweepingly move someone, you can sweep up people who 
are doing the right thing, and so it is striking that balance.
    And so your contention is, Ms. Bradley, that we are moving 
in that direction to strike the proper balance between a 
worker's rights, due process, but also, if you will, a 
veteran's due process to make sure that a bad employee is gone?
    Ms. Bradley. We have to do that. We are not in the business 
at VA of litigating and dealing with employment disputes all 
day. We are in the business of providing the best health care 
possible for our Nation's veterans, for adjudicating claims 
quickly, for burying our heros appropriately. So it is striking 
a balance and running the business, managing the business. We 
may be in the public sector, but we are running businesses.
    So, yes, that is something that is hard for leaders to do, 
but we have to do it.
    Mr. Walz. Yeah, and we need to work that part out, because 
I do think then there is that belief that, again, it has been 
mentioned and again, if it is anecdotal or not, but the public 
certainly hears this a lot, well, it is just easier for us just 
to pay this and move on. That is not really the answer the 
public wants from a taxpayer perspective or I think from doing 
it right.
    So I guess we are trying to strike that balance of giving 
you the right tools to do it while protecting them, but it is 
your contention, as you are saying and we will hear some of the 
data, that that cultural shift is moving in the right 
direction. Because I could agree with you on this and I keep 
coming back to this, I have heard Dr. Shulkin say it, I have 
heard the Secretary say it, many of these things start with the 
leadership: the leadership culture, the leadership incentive, 
that if it starts there many of the things we are talking about 
never get to that point. Would you agree that that is--
    Ms. Bradley. Completely.
    Mr. Walz. And you feel it is moving in that direction?
    Ms. Bradley. I do, I do.
    Mr. Walz. What is the role of OSC in all of this then in 
terms of changing culture, following up, making sure that, I 
mean, I think most of us here agree, the best thing we would 
want is to be able to keep good employees, give people due 
process, and be able to move folks on who should be moved on.
    Mr. Bachman. No, our central role is to help whistleblowers 
and protect whistleblowers when they come forward. So if a VA 
whistleblower comes to us and we have reason to believe they 
have been retaliated against, we want to help them. We want to 
help them get back on their feet and back on their job as 
quickly as possible.
    And I think it sends a message, whether it is through 
settlement or some other mechanism, when that employee who blew 
the whistle, who shined a light on an important issue, who had 
been fired, when they are brought back into that facility 
through settlement or some other mechanism it sends a message, 
it sends a message that the employee will be protected, that 
things are changing. And we have said in other testimony on 
other occasions, we do believe the VA has made positive steps 
in terms of tone at the top, and the importance and value of 
whistleblowers at the VA.
    Mr. Walz. No, I would agree with you, but I think it is a 
valid point that Members here have made that I agree with you 
on that, but if they go back into that institution and the very 
people who were there are still there, I think all of us know 
just by human nature that is a very challenging one.
    So we look forward to working with you on this and 
appreciate you being up here today.
    I yield back, Chairman.
    The Chairman. Thank you very much.
    Mr. Costello, you are recognized.
    Mr. Costello. Thank you, Mr. Chairman.
    As I understand it from reading the materials, as well as 
listening to the questions, there is really two perspectives of 
concern, or at least two perspectives of concern, and they are 
not mutually exclusive. First, I don't think that anyone wants 
to see a frivolous filing of a claim result in a settlement.
    Now, I understand, I think somewhere in the materials the 
nuisance value of these suits is at least $35,000, maybe more, 
it costs you to defend a claim and probably is a little more 
than that. It will be helpful to know or cite to examples to 
address that concern where you have successfully defended to 
the bitter end a frivolous claim just because you do not want 
to develop a reputation for, uh, they filed a suit, let's just 
settle it. I can tell you as a formerly practicing attorney and 
someone who served in local and county office, when insurance 
defense counsel would come to us and say, such-and-such filed a 
claim, we think it is frivolous, we think it is hogwash, we 
think you should defend it because you do not want to be in a 
situation where you develop a reputation where you just settle 
everything, because that invites more claims.
    So information related to where you have not been willing 
to settle on that basis and, candidly, spent more money 
defending it than you would have spent had you just settled it, 
I think that we want to see that, because I think that that is 
what you want plaintiff's counsel who bring these cases to 
know.
    The inverse of that is the situation where a claim has been 
filed and I think we can all concede that sometimes these 
cases, I mean, there is a little bit of unclean hands all 
around, but where a claim is filed, it paints some supervisor 
or someone in the VA in a very unflattering position, and there 
is at least some merit to the factual basis underlying the 
claim. I think that there is a rightful concern if that is 
passively settled in order to basically protect that 
supervisor; we don't want to see that happening either.
    That invites the question in my mind, out of the 200 or so 
cases I think that we are using sort of as a data pool here, 
how many times has that claim been defended to the end, there 
has been a finding of guilt, and that supervisor or employee 
who was the aggressor to the claimant been fired? Because there 
is I think a frustration that there is wrongdoing and people 
get reassigned or, you know, this sort of gets buried in 
paperwork.
    And there is actually, to the accountability question, you 
had mentioned there is a duty of accountability that extends 
beyond the life cycle of the claim. Can you provide some 
instances where that accountability has resulted in people no 
longer being employed by the VA?
    The final point if you could provide me some clarity on is, 
and that would relate to whistleblower claims as well, the 
final question and then I will just leave it open, is this 
clean-record settlement. All right? I don't think anyone wants 
to see clean-record settlements where people have done really 
egregiously things wrong or even things that they shouldn't 
have done, but you mentioned the neutral reference. Can you at 
least expound a little bit further on what that means? Because 
if the only people that get neutral references are people that 
did something wrong, that is fine. I think we want to make sure 
that there is at least some distinction between a neutral 
reference, you know, I could have somebody work for me in the 
past that they didn't do anything wrong, but I am not so sure I 
felt that they would be good for an organization where I may 
say, oh, you know, I am not going to say anything. That is 
actually different than someone who has done something wrong, 
but rather than disclose it you provide a neutral reference. Do 
you understand that distinction?
    So those would be the three sort of areas that I would be 
looking for your feedback. Thank you.
    Ms. Bradley. So let me take the neutral reference first. I 
had to do some digging on this myself. And so generally what it 
means is that the agency when asked will simply state the dates 
of employment, the performance rating of record at the time of 
departure, and the highest grade and title held. And so 
generally when somebody from the other agency, pick an agency, 
gets that information, red flags go up because it is a very 
consolidated set of facts.
    And with respect to would we give a neutral reference for 
somebody who hadn't really engaged in any wrongdoing, that 
would be a different conversation. This is more formulaic, I 
guess is what I am trying to say, it is formulaic. It would 
sound wooden and there would be red flags that would go up.
    With respect to the examples that you have asked for, I 
would be happy to provide them to you. I can't provide them to 
you just off the cuff, but not only would I be happy to provide 
them to you, it might be good for us to use in our training now 
that you mentioned it, because I want everyone in the 
Department to understand that we are willing to go all the way 
when we need to.
    Mr. Young. And I can certainly speak anecdotally from my 
personal experiences of taking a case all the way to litigation 
because I believed absolutely that we did not do anything wrong 
with that employee and we won. And so it does indeed happen, at 
least from one person's personal experience.
    Mr. Costello. I see my time is up. The part that you didn't 
get to was the sort of passive settlement where we don't get to 
the accountability and I can just say from a culture 
perspective, I don't think I am the only one who feels this, it 
is nice to see--that is a weird way of putting it--it would be 
helpful to see the examples where someone has filed a claim, a 
supervisor has done wrong, and that supervisor has been held 
accountable by them being fired, because there is still a 
feeling that we don't ever get to that last part. There is 
reassignment, there is, you know, some sort of paperwork 
shuffle where they are in a different title or a different part 
of the country, and it is just sort of swept under the rug.
    Thank you for allowing me to go over my time, Mr. Chairman.
    The Chairman. Very good.
    Before I recognize Miss Rice, can I ask one question, Ms. 
Bradley? If you have two equal candidates and one of them has a 
neutral recommendation, can you not hire that person based on 
that neutral recommendation?
    Ms. Bradley. Do you mean may the agency choose not to hire 
the person based on the neutral recommendation? Of course, 
absolutely.
    The Chairman. Okay.
    Miss Rice, you are recognized.
    Miss Rice. Thank you, Mr. Chairman.
    I just want to continue on what Congressman Costello was 
talking about, and I don't know if this is information that the 
Chairman and his staff have, but I am curious as to what the 
total amount of settlement amount was for 2015, if you have 
those numbers.
    Ms. Bradley. That was not in the request to us for the 
hearing, but we could certainly pull that together, I think, 
and provide it.
    Miss Rice. I am just curious, because it seems to me that--
and this is a question for you, Ms. Bradley--
    The Chairman. If the gentlelady will yield, it is $5 
million.
    Miss Rice. For 2015?
    The Chairman. Since July of 2014.
    Miss Rice. Since July of 2014. Okay. Thank you, Mr. 
Chairman.
    So my question is, we are talking about all of these 
financial settlements, are there other outcomes and can you 
talk about them?
    Ms. Bradley. Yes, thank you so much. Actually, I said it 
briefly in my opening statement, but I don't know what the 
exact percentage is, but oftentimes we are able to resolve 
employment disputes with no monetary payout. Sometimes it could 
be something as simple as would you move me from the person I 
don't like working next to, could you move me to a different 
location in the facility, or I didn't compete effectively for a 
promotion, could you promise to put me in for this certain kind 
of training this year so I will be more competitive. There are 
so many things we can do to resolve employment disputes short 
of paying money and we do it all the time.
    I think in the EEO context we might be able to give you 
more graphically in the informal resolution stage what the kind 
of percentages of non-monetary payouts versus monetary payouts, 
but it is significant the numbers of complaints that we can 
resolve with no money.
    Miss Rice. So if you can just take us through this process. 
If someone, they either come directly to you or a complaint is 
fed up to you, comes up to you through a chain and you then 
begin to address the mediation or working out the issues, if 
you during an interview with an aggrieved employee learn that 
they are in fact a whistleblower who is being retaliated 
against, what is your responsibility vis-a-vis that information 
that you get?
    And we have talked a lot about the outcomes with 
whistleblowers, but what is the process for the wrongdoers and 
can you give examples of them being held responsible? And how 
does that work?
    Ms. Bradley. Well, you have talked about really three or 
four different kinds of employment disputes that have different 
kinds of processes and procedures associated with them. So 
could we take EEO as the first bucket of employment disputes?
    The reason I pick EEO first is because that is the majority 
of our employment disputes and those are handled in a very 
regular course of business through an office called the Office 
of Resolution Management. Again, I think that I mentioned 
before that the Deputy Assistant Secretary who leads that 
office, Harvey Johnson, is here today with me. So there are 
processes and procedures that require informal discussions of 
settling the matter.
    When I say settle, I don't mean like payouts, I mean like 
let's talk, let's get the aggrieved party, let's get the 
manager in a room, let's have a neutral in that room with those 
two parties, let's see if we can work this out informally 
without having to have a formal investigation.
    If that process breaks down, then you move to the next 
level in the EEO process, which is a formal investigation. So 
you are going to have witness statements, you are going to have 
transcripts, you are going to have court reporters and things 
like that. And then if it has to go beyond the formal stage in 
the Department of Veterans Affairs, it can either go to the 
EEOC, the Equal Employment Opportunity Commission, or it can go 
to an arm of VA called OEDCA that will make final decisions.
    But if we go all the way to those two entities, then there 
is going to be some finding of wrongdoing, some finding of 
fault.
    Miss Rice. Are you responsible for imposing a punishment 
or--
    Ms. Bradley. No. I really have nothing to do with any of 
this process. I am the chief legal officer for the Department, 
so I might be responsible for helping train or to explain the 
laws. But no, those processes are carried out at the local 
level through--take it away, Mr. Young.
    Mr. Young. So an OEDCA decision would come back to the 
medical center director describing the improper actions that a 
supervisor would have had in the medical center and the 
proposed actions that should be taken on that, and then we take 
those actions and then need to report that back up to OEDCA.
    Miss Rice. Mr. Bachman, any deficiencies you see in terms 
of the treatment of whistleblowers versus that of those who 
retaliate against them, in your opinion, and what if any 
recommendations would you make?
    Mr. Bachman. Well, if I can just add on a little bit to the 
process and you were talking about accountability. When a 
whistleblower comes to us from any agency, but let's say the 
VA, files a complaint of whistleblower retaliation, we need to 
investigate that. At the same time though, if the whistleblower 
and the agency wish to engage in settlement negotiations, we 
are going to encourage that, because that is going to help the 
whistleblower get back on their job and back on their feet more 
quickly.
    But I want to be clear on this: just because the 
whistleblower and the VA settle their claims does not mean that 
OSC's role in the case has to end. In fact, we have a number of 
ongoing disciplinary action cases in facilities around the 
country where the whistleblower and the VA have settled and OSC 
is continuing its disciplinary action investigation of subject 
officials.
    So I just wanted to be clear on that point. In terms of 
where the VA has come upon in terms of how they are treating 
whistleblowers, we have seen substantial improvement, but as I 
have said to Ms. Bradley herself and to others, there is still 
a significant room for improvement on that front.
    Miss Rice. No question about that. Thank you very much.
    I yield back, Mr. Chairman.
    The Chairman. Thank you.
    Mrs. Radewagen, you are recognized.
    Mrs. Radewagen. Thank you, Mr. Chairman.
    And welcome to the panel, thank you for your appearance 
today.
    Ms. Bradley, before VA compiled the documents to satisfy 
this Committee's request, have you or anyone else at VA ever 
compiled all of these settlement agreements into one place for 
nationwide review, so you could see the overall cost to the 
taxpayers?
    Ms. Bradley. I have not.
    Mrs. Radewagen. Mr. Bachman, what level of transparency do 
you have into whether employees who retaliate against 
whistleblowers are properly disciplined?
    Mr. Bachman. As I said, our first mission, our primary 
responsibility at OSC is to make sure we are helping to protect 
whistleblowers and through that we have been using settlement 
agreements with the VA to make sure that they are able to get 
back on their job, continue serving veterans, and that has 
really needed to be our primary responsibility.
    At the same time, however, we have really been working to 
improve actions on the disciplinary front to help the VA 
improve accountability there. And to that end we have got these 
several ongoing disciplinary action investigations I have 
mentioned, but I think an important one to point out is that 
over the last few years the VA has disciplined over 40 VA 
employees who were implicated in wrongdoing that was brought to 
light by VA whistleblowers who would come to OSC to make their 
whistleblower disclosure there. And I think that is an 
important point, because it shows the role that whistleblowers 
as well as OSC can take in helping the VA to improve their 
accountability.
    Two of those 40 folks that the VA has disciplined, those 
involved removals of high-level officials at the Fort Collins, 
Colorado facility, which was struggling with the wait-time 
manipulation problem there. So I think there has been an 
ability to take some accountability, not always through the 
strict litigation sense, but through other coordination between 
OSC and VA.
    Mrs. Radewagen. Thank you.
    And, Ms. Bradley, has any thought been given to doing what 
it is I asked about? In other words, you say nothing has been 
compiled, but has any thought been given to such a possibility?
    Ms. Bradley. Well, I don't want the Committee to believe 
that nothing has been compiled. You asked me if my office, I am 
in the Office of General Counsel, we didn't compile that data; 
we don't track the total number of payouts. I think that it is 
fair to say that the administrations are very attentive and 
track that information, as they should, because again these are 
business decisions and the money comes out of their operating 
budget.
    I would say what I track as the General Counsel is can we 
show our veterans, can we show the American people, can we show 
this Committee that when we uncover wrongdoing, whether it is 
racial discrimination or whether it is whistleblower 
retaliation or something along those lines, can we show the 
American people that we will hold those wrongdoers accountable.
    That is what I have been really focused on doing in my 
office, focused on doing it in our training, focused on doing 
it with respect to the standup of the office in my shop called 
the Office of Accountability Review, ensuring that we have put 
really top-notch investigators in the Office of Accountability 
Review so they can provide to us competent investigations with 
sound evidence, so that when we take these actions we won't 
have them overturned. Those are some of the things that my 
office and that I personally have been focused on.
    Mr. Young. And speaking as my previous job as a medical 
center director, that was a fundamental piece of what I looked 
at regularly with the rest of the leadership team was, for 
example, the number of EEO complaints that we have, the number 
of labor grievances, those sort of human resource indicators 
that would give us a sense of the health of the organization.
    Mr. Manker. And from a VBA perspective, we do the same 
thing at the districts. Obviously, we are probably a fraction 
of the size of VHA, so we can look even closer at those 
agreements from an enterprise level. So at each of our 
districts, as well as in our Office of Resolution Management 
within VBA, we do that same thing.
    Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
    The Chairman. Thank you very much, Mrs. Radewagen.
    Ms. Bradley--oh, Dr. Benishek.
    Mr. Benishek. Well, thank you, Mr. Chairman.
    I want to touch on something a little bit different than I 
think that the whole gist of the meeting here this morning is 
and that is my concern is that the average employee is not 
getting evaluated in the process of making sure that--
infractions are not documented, so that we have to use this 
special agreement thing, because you don't have the 
documentation in the record to justify the disciplinary action 
stuff.
    And, you know, a couple years ago Gina Farrisee, the 
Assistant Secretary of Human Resources and Administration at 
the VA, told me and this Committee that she was writing her own 
evaluation and that it was common practice for employees to 
write their own evaluations and have them simply be signed off 
by their supervisor. And, you know, in my opinion, that is a 
way to make it easier for the supervisor, but it doesn't really 
document any problems that might be there with the employee. 
And then later on when, you know, the problem is worse and 
worse, there is no documentation, employee record that there 
was a problem that was attempted to be corrected.
    Is that still going on in the VA? This was two years ago 
she told me that.
    Ms. Bradley. I think that it is an issue and it is so much 
of an issue from my perspective that I have had several 
meetings with my top lawyers. So that would be our district 
chief counsels and the deputy district chief counsel.
    Mr. Benishek. So it is still going on then?
    Ms. Bradley. I don't want to say it is still going on, I 
would say it is still a concern for me. So what I have said to 
my attorneys is for each and every case, when your clients come 
to you and they start to talk about how they might want to 
settle a case, I expect you to be proactive and talk about why 
it is that maybe the record looks a little, let's just say it 
is not as strong as it could be, and the reason that the record 
might not be as strong as it should be is because there wasn't 
proper documentation.
    Mr. Benishek. Well, that is my whole point here.
    Ms. Bradley. Yes, it is hit or miss.
    Mr. Benishek. And maybe, you know, if the managers have a 
better control over the nuts and bolts--
    Ms. Bradley. Yes.
    Mr. Benishek [continued]. --the blocking and tackling of 
doing their managerial jobs, then we wouldn't be resorting to 
these special things so often. Okay?
    Mr. Young, you mentioned that you are a former medical 
center director, so do you have any familiarity with this 
problem of people writing their own evaluations? Have you ever 
written your own evaluation?
    Mr. Young. I do a self-assessment, an honest self-
assessment where I look in the mirror and I--
    Mr. Benishek. But that is not signed by your division 
director as your evaluation for the year?
    Mr. Young [continued]. I write my self-assessment and I 
provide it to the network director, and he then evaluates me 
and writes what he thinks about me and then rates me. And then 
it goes before a panel within--
    Mr. Benishek. So you are not familiar with this process of 
people writing their own evaluations?
    Mr. Young. Writing a self-assessment, yes.
    Ms. Bradley. I am not aware of that problem either. I am 
aware that we have had--
    Mr. Benishek. Well, I mean, I had an Assistant Secretary 
for Human Resources tell me she was writing her own evaluation 
and that it was common practice, and I just don't want to see 
that continue to be a common practice because, as I have 
mentioned and the reason I am asking these questions is it 
doesn't allow for documentation of bad behavior and corrective 
action efforts and all that.
    Mr. Manker. So if I can address that. From a VBA 
perspective, the executive, as well as our employees, as part 
of the performance review and performance-rating process they 
are asked to say, from your perspective, how do you view what 
you have done this year. That is input to the rating that I do 
on the individual, but it is not the final say. The senior 
leader or the rater is the final say on the assessment of that 
individual employee.
    So Ms. Farrisee may have indeed said that she wrote her 
own, but she could have been speaking about a very specific 
part of your performance appraisal, which is your self-
assessment, which becomes a part of the record.
    Mr. Benishek. So how many times have you written these 
yearly? Everyone underneath you, do they get a yearly 
assessment?
    Mr. Manker. So I will speak to my old job, because I have 
been in this one for about two months. So as the Chief--
    Mr. Benishek. So have you written these assessments for 
other people?
    Mr. Manker [continued]. So my deputy has written 
assessments on my employees that worked for me and then I wrote 
the assessment of my deputy. On all of the employees that 
worked directly for my deputy, I was the senior reviewing 
official. So let's say that--
    Mr. Benishek. How often do these assessments have a 
corrective action plan or some sort of a recommendation for 
improvement?
    Mr. Manker. So I can't speak to that, because the--
    Mr. Benishek. So you have never done that?
    Mr. Manker. I have not had the reason to do that.
    Mr. Young. From my experience, I would always ask my 
employees to provide a self-assessment, but then I would also 
write an assessment of them and in that assessment, the last 
paragraph would very typically be these are my expectations for 
them for the coming year and the areas that I believe that they 
have opportunities to improve.
    Mr. Benishek. And then is that ever checked again?
    Mr. Young. Absolutely, and then I would always do a mid-
year review. And just good management is having regular 
conversations with your direct reports about the progress that 
they are making in their work lives.
    Mr. Benishek. All right, I am out of time. Thank you, Mr. 
Chairman.
    The Chairman. Thank you, Doctor.
    Ms. Bradley, if settlement agreements are tracked and 
handled locally and you don't track them, or it doesn't appear 
anybody at the central office tracks them, how can this 
Committee be sure that we have received all of the settlement 
agreements that we asked for?
    Ms. Bradley. Well, again, I didn't say we don't track any 
of them. For those that are in the realm of EEO, those are 
tracked.
    The Chairman. I asked and, I guarantee you, you know what I 
asked the Secretary for.
    Ms. Bradley. I know what your request letter said, yes, 
absolutely.
    The Chairman. Yes. And how can I be sure that I got all of 
those?
    Ms. Bradley. Because we requested those from the various 
entities that keep the settlement agreements.
    The Chairman. And how can you be sure that they gave you 
every one of them?
    Ms. Bradley. I suppose I can't be absolutely sure that they 
gave me every one of them.
    The Chairman. Okay, very good. Next question. You cannot 
tell us about accountability actions in those 208? Nobody knows 
about any type of accountability actions?
    Ms. Bradley. Of course we know about accountability 
actions. What I said was I couldn't discuss individual 
accountability actions in this hearing.
    The Chairman. Could you tell us about though just in a--let 
me see how to put it--in a broad way--
    Ms. Bradley. Yes.
    The Chairman [continued]. Have you done an analysis of the 
208 cases that are out there on what accountability was taken?
    Ms. Bradley. I have looked at some of them, yes.
    The Chairman. Okay, the answer is no.
    Ms. Bradley. I didn't say no. I said I have done some and 
especially those that--
    The Chairman. Have you done all 208--
    Ms. Bradley [continued]. --have gotten to the Secretary or 
the Deputy Secretary.
    The Chairman. Ms. Bradley, my question was have you done an 
analysis on any disciplinary actions in all 208, your answer is 
you have done some.
    Ms. Bradley. Yes, some, some.
    The Chairman. So the answer is, no, you haven't done all 
two hundred--
    Ms. Bradley. My answer is that I have done it on some; that 
is my answer.
    The Chairman. The question is, have you done it on all of 
them?
    Ms. Bradley. I understand. That is where I am, I have done 
it on some.
    The Chairman. Okay, and the answer is no. Thank you very 
much.
    Also, Members, just for your personal information, we did 
an analysis, in 72 percent of the 208 there was a monetary 
payout. You were talking about many, many not, but many is not 
72 percent. That was either people received money or their 
attorneys received money. That is an analysis that we got of 
the 208.
    And let me also for the record, and I am going to be very 
cautious, because even though I could through speech and debate 
talk about a particular settlement agreement, but I want to let 
you know about one in particular. That there was an Inspector 
General report, and there was an AIB that was done, both of 
them said this person should be terminated and removed, and 
this is what the settlement agreement ended up being. And this 
is why, you know, even though you talk about there not being 
monetary payouts, this person is still employed at VA. VA 
agreed to give them a 2015 performance rating of fully 
successful with no negative narrative regarding the issues that 
were addressed in the proposed removal. They had 137 hours of 
annual leave restored into their annual leave account. They 
agreed, they being the Department, that there would be no 
disciplinary action taken against this individual for any 
matters or acts known or that should have been known to VA 
before the effective date, which means what they didn't know 
they can't go back at this point and discipline this 
individual; the VA agreed to give this person a letter of 
reference and also pay their attorneys' fees.
    This is for a person that was recommended for removal. I 
just don't understand how it could go from removal to all of 
this. And so this person still is employed at the Department 
even though they were charged with retaliating against 
whistleblowers. It just doesn't make sense that something like 
that would be allowed to take place.
    Mr. Takano.
    Mr. Takano. Mr. Chairman, certainly the minority does not 
agree with any practices of the VA which would encourage the 
retention of bad employees and certainly we want to see 
accountability occur at the VA.
    But I just want to ask, Ms. Bradley, are you able to talk 
about and respond to the Chairman's particular case even if he 
were to tell you who this person was? You can talk, go ahead.
    Ms. Bradley. I would very much like to. I can't do it in a 
public hearing and we have got to do it with context. So I have 
to know exactly which case he is talking about, I have to make 
sure that I have all of the facts.
    But, yes, we have offered that, in fact I think we have 
done that on a number of occasions, we have brought over the 
relevant experts to talk with the Committee. We want to be 
completely transparent.
    And I don't know when this case took place. I can tell you 
that is antithetical to the leadership of Bob McDonald and 
Sloan Gibson in the area of accountability, it is antithetical 
to my leadership.
    So I would very much like the opportunity to do that in a 
closed session.
    The Chairman. Will the gentleman yield?
    Mr. Takano. I yield for a followup, yes.
    The Chairman. Very quickly. We did get a briefing on this 
particular issue and the answer was the Department had to make 
a judgment call; that was the answer.
    Mr. Takano. Okay. Mr. Chairman, I hope that you might meet 
with Counsel and see if Ms. Bradley can explain it further.
    The Chairman. I already have.
    Mr. Takano. You have? It just has not been satisfactory.
    All right. Well, I would like to go--I don't have any more 
questions on my side; can we go to closing statements?
    The Chairman. Yes, you are recognized to close.
    Mr. Takano. Okay, great. Thank you.
    Well, I want to thank you for the hearing, Mr. Chairman. I 
mean, I thought Mr. Costello's questions were very good, I 
thought we had good questions on all sides. And I feel we have 
done a good job of beginning what I hope will be an ongoing 
involvement in these matters with VA as the agency works to 
reform its culture, because I agree with Ms. Brownley and Ms. 
Bradley, that is the key element in that effort is changing the 
culture.
    I want to let Mr. Bilirakis know that I want to work with 
him on a way to get a better, concrete handle on the numbers of 
agreements, their terms and the cost to VA down in the medical 
center.
    And it would be helpful, Ms. Bradley, if we could be 
absolutely sure that all those agreements are back. I mean, I 
don't want any feeling that there are agreements that your 
administrators out there could keep from the attention of the 
Secretary or your office. So we need to have a way to make that 
absolutely certain in law and in policy, and I would join the 
majority in such an effort to make sure that that happened.
    Finally, I look forward to that detailed briefing on the 
new data analytics program, a program briefing that Ms. Bradley 
has offered us as a followup to this hearing.
    And I am myself quite interested in the kind of training 
that has occurred. This has been a theme I think raised by also 
the Commission on Care co-chairs in their testimony before us, 
their amazement at the relative de-emphasis or the undervalue 
of the personnel department. And I think that connects to much 
of the legal liability that you have to defend against when our 
managers and supervisors are not adequately trained and if they 
are not adequately trained on what retaliation is or what it 
means to have whistleblowers. So retaliation is a serious 
problem not only in the VA context as a workplace, but 
workplaces across this country, public and private.
    But I think we also need to examine how we can empower our 
managers and supervisors and executives to hold employees more 
accountable through progressive discipline, that they are 
thoroughly trained on how to issue progressive discipline, and 
also to document employees properly. I mean, your office cannot 
pursue cases of dismissal when the managers are not doing all 
the things they need to be doing. And there is I think 
admittedly an onus, but not an insurmountable onus and a 
reasonable onus, but that is all the more reason why we need 
better-trained personnel.
    I am curious to know whether we are doing enough. And we 
have heard two private sector leaders of health care 
organizations, health care providers, who both raised this 
question, and I would love to engage with the majority more on 
this topic.
    And I welcome us examining the streamlining of an overly 
burdensome due process, but I don't think we can focus on due 
process alone. We should also be focusing on, if there are 
missing pieces for our managers both in terms of retaliation, 
whistleblower protection, but also progressive discipline, 
which is I think the key. And that done effectively, is a 
powerful tool for changing the culture of an organization.
    So that is my final comment.
    The Chairman. Thank you very much.
    Ms. Bradley, Mr. Bachman, thank you both for being here. 
Ms. Bradley, you always do a very good job as the lead attorney 
for the Department of Veterans Affairs, which means it is very 
difficult sometimes for us to get the answers that we are 
looking for, but I understand who you work for. To both of your 
colleagues that have joined you, thank you for your service to 
the Department. We will continue focusing on this particular 
issue.
    I would ask that all Members would have five legislative 
days within which to revise and extend their remarks and add 
extraneous material. Without objection, so ordered.
    This hearing is adjourned.

    [Whereupon, at 12:12 p.m., the Committee was adjourned.]









                            A P P E N D I X

                              ----------                              

            Prepared Statement of Honorable Leigh A. Bradley
Opening Remarks

    Good morning, Chairman Miller, Ranking Member Takano, and Members 
of the Committee. Thank you for the opportunity to discuss settlement 
agreements between the Department of Veterans Affairs (VA) and its 
employees.
    Addressing employment disputes in the federal government, which 
manifest in complaints of discrimination, allegations of prohibited 
personnel practices such as whistleblower retaliation, and appeals of 
proposed adverse/disciplinary actions, is a particularly daunting 
challenge. At VA, managers at every level are required to do this in 
the most cost effective manner with the least amount of disruption to 
the effective functioning of the organization as it carries out its 
statutory obligations for our Nation's Veterans. Moreover, VA managers 
must resolve employment disputes consistent with the vital goal of 
building and sustaining high performing teams that will achieve 
excellent outcomes for Veterans at a good value to the taxpayers. 
Oftentimes the best course of action when addressing a personnel 
dispute is to litigate the matter all the way to judgment or final 
decision, understanding that this approach will require a substantial 
diversion of agency time, resources, and expertise away from core 
mission activities in order to achieve success in the relevant court or 
administrative board. VA is not reticent to litigate--indeed the 
presumption is that we will litigate most personnel disputes. But it is 
our obligation, and in the best interest of Veterans and the taxpayers, 
to consider the merits of settling an employment dispute on a case-by-
case basis. In each and every case, there is a delicate balance that 
must be struck between expediting the resolution of an employment 
dispute and formal vindication of the agency's position in a federal 
court or administrative board.

Why settle?

    Congress clearly intended that federal agencies have the authority 
to settle matters expeditiously without resorting to protracted 
litigation. In the 1990s, faced with litigation dockets clogging 
federal courts and administrative tribunals, Congress passed three 
statutes that were designed to reduce the cost and time required to 
litigate many disputes. For example, the Administrative Dispute 
Resolution Acts of 1990 and 1996 and the Alternative Dispute Resolution 
Act of 1998, collectively required each agency to adopt a policy 
encouraging the use of Alternative Dispute Resolution (ADR) in a broad 
range of decision making, and required the federal trial courts to make 
ADR programs available to litigants.
    At its most basic, ADR is an efficient means of resolving disputes 
through various mechanisms including mediation and arbitration. 
Settlement reflects the successful result of ADR. Resolving cases 
through ADR often saves parties from burdensome litigation, which can 
be expensive, time consuming, and a drain on resources and 
productivity. VA's use of settlement agreements is not only proper, but 
critical to maintaining a positive workplace of high performing teams 
to carry out VA's mission of serving Veterans. This, we believe, is 
exactly the result Congress intended in passing the 1990's legislation.
    The American Bar Association provided a roadmap for settlement in 
its Ethical Guidelines for Settlement Negotiation, published in August 
2002, stating ``Most litigation is resolved through settlement. Courts 
and court rules encourage settlement of disputes as a means of dealing 
with burgeoning caseloads, increasingly crowded dockets, and scarcity 
of judicial resources. Parties in litigation frequently recognize that 
settlement can achieve substantial costs savings and preserve 
relationships, and does provide certainty in results . . .''.
    VA, like a number of other Federal agencies, does not have a 
national policy specifically aimed at settling employment disputes; and 
considering the unique nature of every employment dispute, we do not 
see the need for such a policy. VA, however, has implemented an 
effective national policy on the use of ADR. Indeed, Secretary McDonald 
underscored the importance of ADR in the VA Equal Employment 
Opportunity (EEO), Diversity and Inclusion Policy, stating ``Workplace 
conflict is often the result of miscommunication or creative tension in 
the organization. Properly managed, it can yield improvements in 
business processes and positive outcomes in the organizational climate. 
To maintain a respectful, productive, and effective work environment, 
it is VA's policy to address and resolve workplace disputes and EEO 
complaints at the earliest possible stage. VA offers ADR services such 
as mediation, facilitation, and conflict management coaching to assist 
parties in constructively resolving disputes. ADR involves a neutral 
third party working with the employee, supervisor, or group to engage 
in constructive communication, identify issues, and develop 
collaborative solutions.'' In our experience, some ADR attempts call 
for settlement--some monetary but many with non-monetary implications, 
e.g., reassignment, resignation, or alteration of workplace conditions.
    VA does recognize, however, the need for tools that will help 
leaders identify negative trends at a particular facility to gauge an 
organizations workplace culture and have more granular information 
about the frequency of complaints, litigation, and settlements and how 
bad actors are held accountable. I'm pleased to report that our Office 
of Human Resources and Administration has developed an initiative, 
which will use data science techniques to analyze internal data and 
publicly available data to ascertain systemic personnel issues and root 
causes in order to measure facility risks for high value settlements 
and findings of discrimination. This information will be available to 
managers at every level to assist them in performing their oversight 
responsibilities in ensuring prudent use of the taxpayer's money. This 
initiative is essential to achieving sustainable accountability across 
the enterprise.

Settlement factors

    VA strives to resolve employment disputes consistent with its goal 
of creating and sustaining a high performing workforce to carry out 
VA's mission of providing excellent services and timely benefits to our 
nation's Veterans. This important work must be done at the local level 
in our Medical Centers, Cemeteries, and Regional Offices across the 
country. It is imperative that local managers and supervisors have the 
flexibility to resolve employee complaints and appeals at the lowest 
possible level based on the individual circumstances at each facility, 
and the commitment to litigate cases when an appropriate settlement 
cannot or should not be obtained.
    VA settlement officials consider a variety of factors before 
resolving an employee complaint through a monetary settlement, such 
factors include: the disruption the complaint creates for that 
facility's workforce; the historical relationships between employees, 
management, and labor representatives; and the challenges the facility 
is attempting to overcome, including Veteran access issues and 
accountability challenges. Settlement officials balance the monetary 
cost of settlement against the loss of productivity of the employees 
and managers if the dispute is not resolved. They also settle cases 
when it is determined an employee has been legitimately aggrieved and 
it is simply the right thing to do.
    Furthermore, the primary judicial and administrative bodies that 
decide federal employment disputes have adopted policies and practices 
that encourage or require settlement negotiations. These bodies, the 
Equal Employment Opportunity Commission (EEOC), Merit Systems 
Protection Board appeals, Federal Labor Relations Authority, and Office 
of Special Counsel (OSC), with their own burgeoning caseloads, often 
strongly encourage all federal agencies to settle cases prior to 
engaging in discovery and hearing. Additionally, based on statutorily 
required bargaining procedures, VA has a number of labor contracts that 
include language that strongly encourages mediation and arbitration.
    Another consideration in settling an employee complaint or appeal 
is the significant cost of litigation to the facility, including the 
administrative resources needed to investigate and process a complaint, 
loss of employee productivity during depositions and trial testimony, 
travel costs, deposition and transcript costs, payments of damages and 
attorney's fees, decreased morale and increased divisiveness in the 
work unit, and loss of focus on the mission. Unlike the Department of 
Justice, whose mission includes litigating cases for the government, 
VA's mission is providing excellent services and timely benefits to our 
nations Veterans. In our case, litigation often requires the dedication 
of significant time by doctors and nurses, claims adjudicators, and 
cemetery personnel that is not focused on their primary duty of serving 
Veterans. Moreover, protracted litigation requires the dedication of 
substantial resources from all parts of the Department, including human 
resources, contracting, Office of Information and Technology, and 
Office of General Counsel (OGC), delaying work on other critical 
initiatives such as hiring to fill critical vacancies. Given the 
substantial resource requirements associated with personnel litigation, 
it is incumbent on every facility manager to factor these 
considerations into settlement. In this way, they are serving as 
prudent stewards of the taxpayers' money.
    In cases where VA proposes a disciplinary action against an 
employee, VA must also consider the employee's response and defenses 
before taking such an action. This response and defense, while not 
obviating the need for discipline, might cause the settlement authority 
to reconsider the level of discipline required and, in order to resolve 
the matter quickly, without the need for prolonged litigation, may mean 
that VA and the employee enter into a settlement agreement.
    In VA's experience the lion's share of employment disputes arise in 
the EEO forum. VA's Office of Resolution Management, which processes 
EEO complaints for VA, estimates that the cost to the organization in 
which an EEO complaint is filed is, at minimum, $35,000 to process and 
investigate the complaint from the time the complaint is initiated 
until it either goes to the EEOC for a hearing or to VA's Office of 
Discrimination Complaint Adjudication for a Final Agency Decision. This 
does not include the sunk cost in time the employee and managers spend 
during the investigation. In addition, should the complaint go forward 
to the EEOC for hearing, VA incurs additional costs in depositions and 
other discovery as well as travel costs for VA witnesses. Furthermore, 
in those cases in which VA does not prevail, VA would be liable for 
additional monetary costs such as back-pay, compensatory damages, 
interest, and attorney fees.
    In addition to the costs issue, the ability of VA to successfully 
defend a personnel complaint is sometimes compromised by the 
unavailability of key witnesses needed for the VA's defense. For 
example, it is not unusual for an EEO complaint to take 18 to 24 
months, from the start of the formal complaint, before a hearing is 
held by the EEOC. In that time, key witnesses may retire or leave 
federal service. Once a witness retires or leaves federal service, 
neither VA nor the EEOC can compel that witness to testify in 
connection with an EEO complaint even if that individual has been named 
as a responsible management official. Settlement of such cases often 
allows VA to avoid near certain defeat at hearing at a much higher 
cost.
    To put this in context, VA received 2,347, 2,047, and 2,130 EEO 
complaints during Fiscal Years 2012, 2013, and 2014 respectively. VA is 
not resourced to litigate this volume of cases to final adjudication 
without significantly and detrimentally impacting its mission of 
serving Veterans. Importantly, according to the most recent data 
maintained by the EEOC, the percentage of formal EEO cases settled 
within VA is within 2% of the average percentage of formal EEO cases 
settled in both Cabinet Level Government Agencies and all Government 
Agencies. This clearly demonstrates that the incidence of settlement 
agreements in VA is in line with the rest of the federal government. We 
expect with our new data science initiative to have real-time 
visibility of the magnitude of the EEO settlements VA enters into going 
forward.
    Prior to engaging in settlement discussions, settlement authorities 
are encouraged to consult with OGC, which advises management about the 
strengths and weaknesses of a case as well as the litigation risks 
posed by the matter. Based on this analysis, OGC may also recommend 
whether a matter should be settled. For example in accordance with its 
own internal written policy, OGC advises its clients to settle an EEO 
matter ``when settlement is supported by (1) objective evidence of the 
claimed loss or suffering and (2) objective evidence that the loss or 
suffering was caused by the discriminatory acts alleged in the 
complaint.'' OGC also advises its clients on the legal restraints 
regarding proposed settlement terms, thereby avoiding illegal or 
unreasonable settlements, e.g., compensatory damages in excess of 
$300,000 in an EEO case or inappropriate entitlement to retirement 
benefits. Ultimately, however, the authority to settle a matter lies 
with a settlement authority who is in the best position to assess the 
impact and true cost of litigation to his or her organization.
    The authority to resolve a matter derives from the Secretary of 
Veterans Affairs organic authority to manage the Department. Through 
his delegated authority, management officials resolve matters with 
their employees. Typically, in a Medical Center, the Director acts as 
the settlement authority and in a Regional Office, the Regional Office 
Director acts in this capacity. When settling cases, these senior 
leaders are naturally inclined to be frugal as they consider a proposed 
monetary settlement because the money paid in a settlement of 
employment cases comes directly from their administration's operating 
budget.
    Settlement does not end the obligation of the Department. If a 
settlement agreement is reached with an employee who filed an EEO or 
whistleblower retaliation complaint, VA has a duty to determine whether 
there was any wrongdoing by another employee necessitating settlement 
and, if so, what disciplinary action should be taken against or 
training provided to the responsible management official or responsible 
employee(s). In most cases, VA conducts the investigation. In cases 
involving potential wrongdoing by senior leaders, VA's Office of 
Accountability Review conducts the investigation. However, with 
whistleblower retaliation, OSC may, in accordance with law, conduct 
such investigations and recommend proposed disciplinary action to VA. 
VA supervisors should hold employees accountable based on the results 
of such investigations, when it is appropriate to do so.

Conclusion

    VA does not misuse its authority to enter into settlement 
agreements to resolve employment disputes. VA settles cases in 
appropriate circumstances after carefully considering the cost of 
litigation to include devoting critical resources to deposition and 
hearing preparation and weighing the strength of the evidence and the 
potential defenses. Settlements have helped VA successfully provide 
expedited corrective action to whistleblowers and employees who have 
experienced retaliation or discrimination. Settlements have also helped 
VA successfully remove employees without the delay and uncertainty that 
comes with litigation, including the risk that the employee will be 
returned to VA on appeal. Most importantly, settlements have helped VA 
keep its doctors, nurses and other employees focused on direct patient 
care or other services to Veterans rather than litigation.
    The ability to successfully settle employee complaints or actions 
taken against employees is an important management tool in employee-
employer relations and helps ensure our workforce is focused on its 
mission of serving Veterans rather than on litigation. The use of this 
tool is not and has not been taken lightly and, in all instances, 
before entering into a settlement agreement with employees, settlement 
authorities weigh the benefit that an agreement will have on VA, 
Veterans, and taxpayers, against the agreement's costs. We also take 
seriously our obligation to hold employees accountable and, 
notwithstanding considerations that might favor settlement, we will not 
hesitate to litigate appropriate cases to reinforce our commitment to 
our Veterans.

                                 
                   Prepared Statement of Eric Backman
    Chairman Miller, Ranking Member Takano, and Members of the 
Committee. Thank you for the opportunity to testify today about the 
U.S. Office of Special Counsel (OSC) and our work with whistleblowers 
at the Department of Veterans Affairs (VA).

VA complaints by the numbers

    Since 2014, OSC has seen a dramatic increase in the number of 
whistleblower retaliation claims filed by VA employees. In response, 
our office has helped to secure a record level of favorable actions for 
VA whistleblowers. These favorable actions help courageous employees 
restore successful careers at the VA. The following tables highlight 
our current and historical caseloads for prohibited personnel practice 
complaints, which include whistleblower retaliation cases, filed by VA 
employees.



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    As Table 1 demonstrates, prohibited personnel practice complaints 
filed by VA employees constituted 30-35% of all prohibited personnel 
practice cases OSC received government-wide during 2014-2016. While the 
number of complaints by VA employees decreased somewhat in 2016, our VA 
caseload remains at a historically high level, with nearly double the 
number of cases received prior to the national media coverage of the 
patient wait list scandal in summer 2014. OSC currently has 300 active 
VA whistleblower retaliation cases in locations across the country. In 
addition, OSC is reviewing the retaliatory conduct of more than a half-
dozen VA managers in several facilities for possible disciplinary 
action.
    Although OSC is a small agency, with limited resources, we have 
taken a number of steps to maximize our response to this tremendous 
surge in VA complaints. We prioritized the intake and initial review of 
all VA health and safety-related whistleblower complaints and have 
streamlined procedures to handle these cases. The Special Counsel 
assigned senior leadership staff to supervise and coordinate 
investigations of VA cases. We reallocated additional program staff to 
work on VA cases and established a regular coordinating meeting on VA 
complaints. And finally, we opened and have maintained an ongoing 
dialogue with VA leadership to help identify and resolve meritorious 
cases as quickly as possible and to discuss certain trends and areas of 
concern related to VA whistleblower cases filed with OSC.



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    As our docket of VA cases has grown, so too has our rate of 
securing relief for VA employees. As shown in Tables 1 and 2 above, 
between 2015 and 2016 to date, OSC obtained either full or partial 
relief 169 times for VA employees who filed whistleblower retaliation 
or other prohibited personnel practice complaints. Since 2013, the 
number of VA prohibited personnel practice complaints filed with our 
office has increased by 67%, while the number of favorable actions we 
have obtained in these cases during this timeframe has increased by 
232%.

    Settlements between the whistleblower and the agency are the most 
efficient way to help get whistleblowers back on their feet quickly

    OSC routinely conducts investigations of whistleblower retaliation 
complaints. An investigation typically involves requests for documents 
and information, including electronically stored information, sworn 
witness interviews, and, as necessary, travel to VA or other 
facilities. Whistleblower investigations are fact-intensive, complex, 
and may involve thousands of pages of competing evidence provided by 
the whistleblower and the agency involved. Once OSC completes its 
investigation and concludes that retaliation has taken place, it issues 
a prohibited personnel practice report to the agency with 
recommendations. If the agency does not accept OSC's recommendations, 
OSC files a complaint with the Merit Systems Protection Board (MSPB), 
litigates the complaint in an administrative hearing, and potentially 
on appeal to the MSPB and federal court. The investigation and 
prosecution of a whistleblower investigation is expensive and time-
consuming, and a case may take years to wend its way through the 
system.
    OSC operates under one of the smallest law enforcement budgets in 
the federal government, and it would not be possible to fully 
investigate and litigate each meritorious complaint we receive.
    The settlement process is therefore a critical component of OSC's 
toolkit in handling whistleblower retaliation complaints filed with our 
agency. Settlement may occur at any stage of our process. OSC staff 
assigned to a particular case may facilitate settlement discussions 
between the whistleblower and the agency, or the parties may agree to 
participate in OSC's robust Alternative Dispute Resolution (ADR) 
program.
    Through settlement, whistleblowers obtain relief far more quickly 
than through a completed investigation and prosecution. Where OSC's 
investigation shows that retaliation may have occurred, our first 
priority is to try to help the whistleblower as quickly as possible. On 
a litigation track, it could take years for a whistleblower to get 
corrective action, and of course, the whistleblower may ultimately lose 
and receive no relief at all. For these reasons, all but a very small 
percentage of complaints settle rather than going to trial. This is 
true for VA employees as well as employees throughout the government.
    Examples of the relief available to a whistleblower through 
settlement include reinstatement to his or her job, rescinding a 
suspension, and/or providing back pay relief or compensatory damages. 
But settlement negotiations also allow the whistleblower and the agency 
to be more creative in the relief provided. For example, the parties 
may agree to place the whistleblower in a new, mutually agreeable 
position, even though that relief would be more difficult to obtain 
through litigation. Likewise, the agency may agree to provide training 
to its managers regarding whistleblower protections or to change the 
whistleblower's reporting structure. Ultimately, settlements can allow 
the parties to move forward in a productive work environment and reduce 
the likelihood of future complaints/litigation.
    To illustrate, OSC's recent efforts to mediate resulted in a 
settlement between the VA and Brandon Coleman, a high-profile 
whistleblower at the Phoenix VAMC. The settlement included a new 
position for Mr. Coleman as an addiction therapist in Anthem, a Phoenix 
suburb, and moved him away from his previous chain of command. This was 
a positive outcome for Mr. Coleman and the veterans he now serves, and 
would not have been possible without OSC's ADR program mediating a 
voluntary settlement between the VA and Mr. Coleman.

OSC's role in settlement negotiations between the whistleblower and the 
    agency

    When a whistleblower and agency express an interest in settlement, 
OSC encourages them to engage in settlement negotiations. This is true 
not just for the VA, but for all agencies we investigate. It is 
important, however, to clarify OSC's role in any settlement 
negotiations between a whistleblower and his or her employing agency. 
OSC is an independent federal agency, does not personally represent any 
OSC whistleblower, and cannot give a whistleblower legal advice. 
Indeed, whistleblowers are often represented by their own private 
counsel, who advise them throughout the settlement negotiations. With 
rare exception, OSC is not a party to the settlement agreement between 
the whistleblower and the agency. Rather, if the parties--the 
whistleblower and the agency--wish to engage in settlement 
negotiations, OSC will often facilitate these discussions by relaying 
the various offers and counter-proposals between the two parties and/or 
by acting as a mediator through our ADR program. OSC may also assist in 
the process by discussing the strengths and weaknesses of the case, and 
by providing information about both sides' liabilities should the case 
proceed. But OSC itself does not make any settlement offer nor does it 
accept or reject a settlement offer made by the agency. Rather, the 
decision to accept a particular offer from an agency remains solely 
with the whistleblower.

A settlement between the whistleblower and the agency does not preclude 
    further investigation by OSC

    When a whistleblower and the VA settle a case for corrective 
action, such as rescinding a suspension, that settlement does not 
necessarily end OSC's role in the case. OSC recognizes that 
disciplining managers who retaliate against employees is an important 
tool to promote accountability and deter future violations of the 
whistleblower laws. Accordingly, even where a whistleblower settles his 
or her claim, OSC assesses the need for further investigation for 
potential discipline against alleged retaliators. For example:

      In a Maryland VA facility, OSC determined that the VA had 
retaliated against an employee (who is also a disabled veteran) because 
he contacted a member of Congress for assistance with his own VA 
benefits. About one month after the employee's congressional contact, 
the VA terminated his employment, even though the VA had not previously 
raised performance concerns prior to his congressional contact. OSC 
investigated and found that the VA' bases for termination were 
pretexual, the VA's charges lacked evidentiary support, and termination 
was an excessive penalty for the alleged conduct. The VA ultimately 
settled and provided full corrective action to the employee, including, 
among other things, reemployment with the VA, back pay, and 
compensatory damages. In addition, as a result of our investigation, 
OSC further sought and obtained disciplinary action against two 
supervisors, both of whom received 10-day suspensions.
      In whistleblower retaliation cases at the VA's Puerto 
Rico facility, OSC has investigated and obtained corrective actions for 
several whistleblowers. Two whistleblowers resolved their claims 
through settlement agreements with the VA that included, among other 
things, the repeal of a suspension, a return to their former positions, 
and compensatory damages. A third whistleblower is currently in 
settlement negotiations with the VA. Given the severity of the 
allegations in these cases, OSC also has an active, ongoing 
investigation of several high-level officials at the Puerto Rico VA for 
potential disciplinary action.
      A whistleblower in the Cincinnati, Ohio VA facility 
settled his retaliation claim with the VA. OSC has continued its 
investigation for potential disciplinary action against the subject 
official, and the VA has indicated it will propose discipline.
      A whistleblower in a Wisconsin VA facility settled her 
retaliation claim with the VA for relief including a clean personnel 
record and back pay and compensatory damages. OSC has continued its 
investigation and is actively reviewing two subject officials for 
potential discipline.

    We will keep the Committee updated on the resolution of these 
important disciplinary action cases.
    As these and other cases demonstrate, even where the whistleblower 
and the VA agree to settle their claim for corrective action, OSC will, 
in appropriate cases, continue to investigate and seek discipline 
against officials who may have retaliated against the whistleblower. 
Although it takes significantly more time and resources to complete 
disciplinary investigations, in the first four full years of Special 
Counsel Carolyn Lerner's tenure (2012 - 2015), OSC more than doubled 
the number of disciplinary actions taken as compared to 2008-2011. From 
2012 to 2015, OSC generated 78 disciplinary actions government-wide 
against retaliators and other violators.

Conclusion

    We appreciate the Committee's attention to the issues we have 
raised and your interest in our efforts to protect and promote VA 
whistleblowers. I thank you for the opportunity to testify, and am 
happy to answer your questions.
  Deputy Special Counsel for Litigation and Legal Affairs Eric Bachman
    Eric Bachman joined the U.S. Office of Special Counsel in 2014. He 
served as a special litigation counsel in the Justice Department's 
Civil Rights Division from 2012 to 2014, and was a senior trial 
attorney from 2009 to 2012. Before joining the Justice Department, he 
was in private practice, as an associate and then as a partner, in a 
Washington, DC civil rights law firm. Mr. Bachman began his legal 
career as a public defender in Louisville, Kentucky. He received a J.D. 
from Georgetown University Law Center.

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