[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
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C O N T E N T S
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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
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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
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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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