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25–225 2018

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 

( 

Available via the World Wide Web: http://www.fdsys.gov 

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(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida, Vice-Chairman 

DAVID P. ROE, Tennessee 

DAN BENISHEK, Michigan 

TIM HUELSKAMP, Kansas 

MIKE COFFMAN, Colorado 

BRAD R. WENSTRUP, Ohio 

JACKIE WALORSKI, Indiana 

RALPH ABRAHAM, Louisiana 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

AMATA COLEMAN RADEWAGEN, American 

Samoa 

MIKE BOST, Illinois 

CORRINE BROWN, Florida, Ranking Member 

MARK TAKANO, California 

JULIA BROWNLEY, California 

DINA TITUS, Nevada 

RAUL RUIZ, California 

ANN M. KUSTER, New Hampshire 

BETO O’ROURKE, Texas 

KATHLEEN RICE, New York 

TIMOTHY J. WALZ, Minnesota 

JERRY MCNERNEY, California 

JON TOWERS, Staff Director 

DON PHILLIPS, Democratic Staff Director 

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Veterans’ Affairs are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 

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(III) 

C O N T E N T S 

Wednesday, September 14, 2016 

Page 

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

OPENING STATEMENTS 

Honorable Jeff Miller, Chairman ........................................................................... 1 

Honorable Mark Takano, Acting Ranking Member .............................................. 3 

WITNESSES 

The Honorable Leigh Bradley, General Counsel, U.S. Department of Veterans 

Affairs .................................................................................................................... 4 

Prepared Statement ......................................................................................... 33 

Accompanied by: 

Mr. James Manker, Jr., Acting Principal Deputy Under Secretary for 

Benefits, U.S. Department of Veterans Affairs 

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

Mr. Eric Bachman, Deputy Special Counsel for Litigation and Legal Affairs, 

U.S. Office of Special Counsel ............................................................................. 5 

Prepared Statement ......................................................................................... 36 

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(1) 

AN EXAMINATION OF VA’S MISUSE OF 

EMPLOYEE SETTLEMENT AGREEMENTS 

Wednesday, September 14, 2016 

COMMITTEE ON VETERANS’ AFFAIRS, U. S. HOUSE OF REPRESENTATIVES, Washington, D.C. 

The Committee met, pursuant to notice, at 10:29 a.m., in Room 

334, Cannon House Office Building, Hon. Jeff Miller [Chairman of 

the Committee] presiding. 

Present: Representatives Miller, Lamborn, Bilirakis, Benishek, 

Huelskamp, Coffman, Wenstrup, Costello, Radewagen, Takano, 

Brownley, Kuster, O’Rourke, Rice, Walz, and McNerney. 

OPENING STATEMENT OF JEFF MILLER, CHAIRMAN 

The CHAIRMAN. Good morning, everybody. Thanks for being here 

at today’s hearing entitled, ‘‘An Examination of VA’s Misuse of Employee Settlement Agreements.’’ Since 2013, when this Committee 

first began examining accountability measures. in earnest, we have 

seen a recurring practice in which VA frequently enters into settlement agreements with employees who are resigning or who have 

been proposed for disciplinary actions as opposed to taking the 

steps to follow these personnel actions to their final disposition. 

These agreements are binding legal documents between VA and 

the employee which lay out the terms for, in most cases, the employee’s departure from the department, and their agreement to 

drop any current grievance or appeal to the Merit System Protection Board, the U.S. Equal Employment Opportunity Commission, 

the Office of Special Counsel, or any other entity. While in theory, 

I think these agreements are useful tools to avoid lengthy administrative or legal disciplinary processes, it is clear that the potential 

overuse of these agreements stems from burdensome civil service 

laws that make it difficult for VA managers to appropriately discipline VA employees. 

In an effort to make the disciplinary process more convenient, 

VA often agrees to pay out thousands of taxpayer funded dollars 

both to the employee and their legal representation, as well as 

other benefits for the employee to simply just go away. It is because of this Committee’s continued investigation into personnel 

matters at VA, and our own healthy skepticism about the lack of 

transparency in VA’s potential overuse of these agreements that 

last October I sent a letter to the Secretary requesting copies of 

every settlement agreement that VA had entered into since July of 

2014. Earlier this year VA complied with my request and provided 

copies of 208 settlement agreements for the Committee to review. 

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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 whistleLeonard.horne on VACREP0180 with DISTILLER

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blowers 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. 

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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 offiLeonard.horne on VACREP0180 with DISTILLER

5 

cials 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. 

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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. 

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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. 

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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? 

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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 enLeonard.horne on VACREP0180 with DISTILLER

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gage 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 acLeonard.horne on VACREP0180 with DISTILLER

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countability. 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? 

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12 

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. 

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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 

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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? 

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15 

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 

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16 

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 

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17 

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. 

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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. 

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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. 

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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. 

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21 

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, 

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22 

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 emLeonard.horne on VACREP0180 with DISTILLER

23 

ployment, 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? 

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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 OpLeonard.horne on VACREP0180 with DISTILLER

25 

portunity 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 whistleLeonard.horne on VACREP0180 with DISTILLER

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blowers 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. 

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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? 

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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? 

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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? 

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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. 

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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 

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32 

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.] 

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A P P E N D I X 

Prepared Statement of Honorable Leigh A. Bradley 

Opening Remarks 

Good morning, Chairman Miller, Ranking Member Takano, and Members of the 

Committee. Thank you for the opportunity to discuss settlement agreements between the Department of Veterans Affairs (VA) and its employees. 

Addressing employment disputes in the federal government, which manifest in 

complaints of discrimination, allegations of prohibited personnel practices such as 

whistleblower retaliation, and appeals of proposed adverse/disciplinary actions, is a 

particularly daunting challenge. At VA, managers at every level are required to do 

this in the most cost effective manner with the least amount of disruption to the 

effective functioning of the organization as it carries out its statutory obligations for 

our Nation’s Veterans. Moreover, VA managers must resolve employment disputes 

consistent with the vital goal of building and sustaining high performing teams that 

will achieve excellent outcomes for Veterans at a good value to the taxpayers. Oftentimes the best course of action when addressing a personnel dispute is to litigate 

the matter all the way to judgment or final decision, understanding that this approach will require a substantial diversion of agency time, resources, and expertise 

away from core mission activities in order to achieve success in the relevant court 

or administrative board. VA is not reticent to litigate—indeed the presumption is 

that we will litigate most personnel disputes. But it is our obligation, and in the 

best interest of Veterans and the taxpayers, to consider the merits of settling an 

employment dispute on a case-by-case basis. In each and every case, there is a delicate balance that must be struck between expediting the resolution of an employment dispute and formal vindication of the agency’s position in a federal court or 

administrative board. 

Why settle? 

Congress clearly intended that federal agencies have the authority to settle matters expeditiously without resorting to protracted litigation. In the 1990s, faced with 

litigation dockets clogging federal courts and administrative tribunals, Congress 

passed three statutes that were designed to reduce the cost and time required to 

litigate many disputes. For example, the Administrative Dispute Resolution Acts of 

1990 and 1996 and the Alternative Dispute Resolution Act of 1998, collectively required each agency to adopt a policy encouraging the use of Alternative Dispute 

Resolution (ADR) in a broad range of decision making, and required the federal trial 

courts to make ADR programs available to litigants. 

At its most basic, ADR is an efficient means of resolving disputes through various 

mechanisms including mediation and arbitration. Settlement reflects the successful 

result of ADR. Resolving cases through ADR often saves parties from burdensome 

litigation, which can be expensive, time consuming, and a drain on resources and 

productivity. VA’s use of settlement agreements is not only proper, but critical to 

maintaining a positive workplace of high performing teams to carry out VA’s mission of serving Veterans. This, we believe, is exactly the result Congress intended 

in passing the 1990’s legislation. 

The American Bar Association provided a roadmap for settlement in its Ethical 

Guidelines for Settlement Negotiation, published in August 2002, stating ‘‘Most litigation is resolved through settlement. Courts and court rules encourage settlement 

of disputes as a means of dealing with burgeoning caseloads, increasingly crowded 

dockets, and scarcity of judicial resources. Parties in litigation frequently recognize 

that settlement can achieve substantial costs savings and preserve relationships, 

and does provide certainty in results . . .’’. 

VA, like a number of other Federal agencies, does not have a national policy specifically aimed at settling employment disputes; and considering the unique nature 

of every employment dispute, we do not see the need for such a policy. VA, however, 

has implemented an effective national policy on the use of ADR. Indeed, Secretary 

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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 

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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 involvLeonard.horne on VACREP0180 with DISTILLER

36 

ing 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. 

f 

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. 

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37 

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. 

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Insert offset folio 1 here 25225.001 Insert offset folio 2 here 25225.002
38 

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 

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39 

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. 

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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. 

Æ 

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