STATEMENT OF THE
DEPARTMENT OF VETERANS AFFAIRS BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES

March 11, 1999

Mr. Chairman, and members of the Subcommittee: Thank you for the opportunity to appear before you today to share information on the policies and protections afforded to Department of Veterans Affairs employees who "blow the whistle" or who otherwise believe they may be subject to retaliation for disclosures or complaints.

Avenues available at VA for redress of whistleblower retaliation claims

At VA, as is true at all Federal Departments and agencies, there are a number of avenues, created by statute and regulation, which an employee may use to seek redress of reprisal as a result of whistleblowing activities. Outside the EEO arena, an employee’s choices for raising a claim of retaliation include:

1. The Merit Systems Protection Board (MSPB) – This avenue is available to employees who have received adverse personnel actions appealable to the MSPB. Employees may raise claims of whistleblower reprisal in their MSPB appeal. All VA employees are informed of this appeal right and are provided with an MSPB appeal form at the time that the adverse action is taken. That form specifically solicits information on any whistleblower claim the employee wishes to rise at the MSPB. An employee who is dissatisfied with the MSPB’s final decision may appeal to the U.S. Court of Appeals for the Federal Circuit.
2. Office of Special Counsel (OSC) – Employees may file claims with OSC if they believe they have been subjected to any prohibited personnel practice, including reprisal for "whistleblowing," even in cases which are not otherwise appealable to the MSPB (e.g., reassignment, non-selection, title 38 disciplinary actions). If after review and/or investigation, a claim is dismissed by OSC, employees may, and are informed by OSC of their right to, appeal to the MSPB through the filing of an Individual Right of Action appeal. Again, MSPB decisions may be appealed to the Court of Appeals for the Federal Circuit by employees dissatisfied with the result.
3. VA Office of Inspector General (OIG) – The Inspector General is available to receive complaints of whistleblower reprisal from VA employees at any time. If the OIG makes a finding of retaliation, management is required to concur or disagree with that finding. The employee may, at any time, file the claim with the OSC (or, if available the MSPB).
4. Title 38 personnel action appeal -- Reprisal issues may be raised in the statutory title 38 disciplinary procedures. Title 38 employees (VHA health care professionals) are also entitled to pursue claims of whistleblower retaliation through other procedures including the OSC and an Individual Right of Appeal to the MSPB.
5. Negotiated grievance procedure – This avenue is available if a personnel action has been taken which is grievable under a negotiated grievance procedure contained in a labor-management collective bargaining agreement. In this regard, two national collective bargaining agreements (AFGE and NAGE), covering approximately 120,000 VA employees, contain provisions which give employees protection from reprisal. Employees may elect to use either this procedure or the previously described statutory procedures, but they may not use both.
6. VA’s administrative grievance process – This avenue is available to non-bargaining unit employees in covered cases, which are not otherwise appealable within the VA. Use of the agency grievance procedure does not preclude going to the OSC.

There are additional avenues employees may use when they believe they

have been retaliated against due to their exercise of rights under the law.

For example, a claim that an employee has suffered reprisal due to his

exercise of rights under the Federal Service Labor-Management Relations

Statute may be included in an unfair labor practice complaint. The same is

true of the Occupational Safety and Health Act, environmental laws and other

Federal statutes. And, as you know, VA is currently implementing its new

statutory procedure for issuing and reporting final agency decisions on EEO

complaints, including claims of reprisal for the exercise of EEO rights. Of the

821 final decisions on the merits issued by VA’s new Office of Employment

Discrimination Complaint Adjudication (OEDCA) to date, 26 found discrimination.

Ten of those 26 decisions (approximately 38%) included a finding of retaliation

because of the complainant’s prior EEO activity. The Director of OEDCA has

reported these ten findings of retaliation to the Secretary, along with 7 retaliation

findings issued by the Equal Employment Opportunity Commission.

Informing VA employees of their rights

This enumeration of avenues of redress illustrates how difficult and confusing they may be to the employee. The Department acknowledges that there is room for improvement in insuring that the VA workforce is fully informed of the existence of all these procedures and that employees are aware of the choices available to them. VA facilities have significant authority in managing their Human Resources programs, including determining the manner in which employees and supervisors are informed of the protections against whistleblower reprisal. Although copies of the national agreements mentioned earlier have been distributed to all bargaining unit employees and supervisors, we recognize that the uniformity and consistency regarding what and how the information on this topic is provided may need improvement. Employees are informed of their whistleblower rights and protections in ways that vary from facility to facility – through information posted on bulletin boards, or distributed in employee handbooks, facility newsletters and employee orientation materials. Actions are now underway to improve our information dissemination process and to make it more formalized and consistent.

First, the Secretary of Veterans Affairs has issued additional guidance to both managers and employees on whistleblower rights and the avenues of redress available to those who believe they have suffered reprisal due to whistleblowing activities. This guidance consists of a Memorandum to All Employees and a Memorandum for Administration Heads, Assistant Secretaries and Other Key Officials. In both of these memoranda Secretary Togo D. West, Jr. reminds employees about the special review procedures, instituted by VA in 1993, for handling complaints of reprisal. Under these procedures, all investigative reports on reprisal complaints are to be reviewed by management officials above the facility level where the reprisal is alleged to have occurred. This provides the higher level officials with an opportunity to make specific corrective interventions if considered appropriate. The higher-level review requirement applies to all types of reprisal complaints other than those which arise in the EEO process. Since enactment of Public Law 105-114, the Office of Resolution Management (ORM) Equal Employment Opportunity (EEO) counselors provide early intervention in the counseling process by apprising ORM EEO Officers of retaliation complaints that may necessitate the involvement of higher level officials. Further, the Office of Employment Discrimination Complaint Adjudication (OEDCA) refers all final decisions finding retaliation for EEO activity to the Secretary.

In addition, in the memorandum to all employees, Secretary West lists avenues for redress available to those who believe they have been or are being retaliated against for whistleblowing. In the memorandum to senior managers, Secretary West reminds these key officials of their responsibility for protecting employees from reprisal. The Secretary directs that information about whistleblower protections and responsibilities be included in all new employee orientation programs and supervisory training. The Secretary’s instructions will help establish consistent policy and mechanisms for informing employees of their protections.

Other steps are being taken as well. VA’s Office of Human Resources is creating a page entitled "Whistleblowing" which is linked to VA’s home page on VA’s Intranet. This new page will display a message directing the reader to the fact that it is a new addition. It will contain information about whistleblowing, protections afforded to employees, and links to helpful resources. Although the web site is still a work in progress, the Secretary’s memoranda on this subject will be added to it, as will a copy of the MSPB Handbook that provides questions and answer about whistleblower appeals, and links to the MSPB and OSC web sites. VA intends this web page to be a useful resource for employees and managers alike. As VA obtains and develops more information on this topic, it will be posted on the web.

VA has also decided that all senior employees will receive annual reminders regarding the rights of whistleblowers and the prohibitions against whistleblower retaliation possibly as an adjunct to their annual required ethics training.

Finally, the Secretary asked two of his senior managers, the General Counsel and the Assistant Secretary for Human Resources and Administration, to establish a team of VA employees to review aspects of the whistleblower and retaliation issues at VA. The initial focus of the group will be on identifying the information needed at headquarters to assess and manage whistleblower protection matters, and how that information may be effectively collected. The team has been appointed and begun meeting. We would be happy to share the team’s report with the Committee as soon as it is available.

Opening up a dialog between employees and managers is key

With increasing frequency, employees at all agencies are filing reprisal complaints after they have filed other types of claims or complaints. According to statistics in the Equal Employment Opportunity Commission’s most recent (1997) Federal Sector Report on Complaints Processing and Appeals Report, reprisal is the most common cited basis for discrimination complaints representing 22% of all Federal complaints, or 15,477. This number has grown, Federal-wide, each year since 1994. At VA, the Office of Resolution Management is finding that miscommunication and misunderstanding between supervisors and complainants often give rise to complaints.

In this area of heightened sensitivities, claims will inevitably occur. We believe that a process that permits open and free communication, by ensuring employees that their concerns will be addressed while at the same time ensuring fairness to managers, is the key to handling such claims. We are at the beginning of this process, and have more to do. We will be effective only when we have a system which encourages employees to come forward to express their concerns and assures that when and if they do, those concerns will be addressed without reprisal.

As you know, over the last two years VA has, under Public Law 105-114, implemented an improved discrimination complaint system. Under that new system, the ORM is involved in an ongoing effort of working with VA Administrations and labor partners to develop and implement an Alternate Dispute Resolution (ADR) program. Mediators have been used to help resolve several complaints within the system, some involving allegations of retaliation. The Department as a whole is committed to increasing the early access to mediators in all VA workplace disputes.

To this end, VA has negotiated agreements with its labor partners, both at national and local levels. These agreements require labor and management to jointly develop programs that offer ADR techniques which use mutually agreed upon neutral third parties to help resolve workplace conflicts. Roughly 30% of VA medical centers already have jointly developed mediation programs and VA is actively working to increase this number. Where these programs are being used effectively, VA has experienced a 70-90% resolution rate. ADR can thus substantially assist in obtaining a resolution acceptable to both the employee and the supervisor before a possible retaliation situation arises.

VA must and will properly deal with all retaliation found to exist

There are instances where retaliation for protected whistleblowing has occurred. Retaliation may involve direct and substantial actions such as disciplinary action, failing to promote or giving an employee a negative performance appraisal. It may be more subtle. Whether subtle or direct, however, VA does not and will not condone such behavior.

Supervisors who engage in such behavior will be dealt with appropriately, including the imposition of discipline when warranted. Those of higher rank however, will not be treated more leniently due to their rank. VA is aware of the perception by some that the Department protects members of senior management who transgress in this area. Regardless of whether that perception is accurate, any favoritism showed to senior managers would be intolerable. To ensure consistency in how the Department deals with this issue, a requirement was put into effect in March 1997 under which all proposed actions related to conduct or performance problems involving senior officials must be reviewed by the organization head and coordinated with the Office of General Counsel, the Office of the Assistant Secretary for Human Resources and Administration, and the Secretary’s office.

If retaliation is condoned, or if employees merely think it is condoned, they will be unwilling to bring legitimate concerns to the attention of management and will be reluctant to report wrongdoing or waste, fraud, and abuse. Such a state of affairs would deny VA officials the opportunity to correct mistakes and improve operations. VA is a high-performing organization and realizes that if it is to stay that way, it must have a competent, professional and fully committed workforce, which serves veterans and their families in an atmosphere free of retaliation. VA will work steadfastly to establish and maintain good faith with our employees.

It will take time to educate our entire workforce, especially one the size of VA, but that is what we intend to do. The results of our efforts may not be fully quantifiable, but our goal nonetheless is to not only protect the whistleblower who has been the victim of retaliation, but also to prevent such retaliation from occurring in the first place. Only when we have achieved that will we be able to maximize our service to America’s Veterans.

We appreciate the Subcommittee’s focus on these issues. Your attention has required the Department to scrutinize its policies and identify areas that must be improved. We look forward to working with the Subcommittee as we make necessary improvements. We will be happy to answer any questions you may have.