Union Calendar No. 32

103D CONGRESS

1ST SESSION H. R. 1032

[Report No. 103–64]

A BILL

To amend title 38, United States Code, to provide

Affairs.nation arising within the Department of Veteransing complaints of unlawful employment discrimifor improved and expedited procedures for resolvAPRIL 22, 1993

Reported with amendments, committed to the Committee

dered to be printedof the Whole House on the State of the Union, and or-
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Union Calendar No. 32

103D CONGRESS

1ST SESSION H. R. 1032

[Report No. 103–64]

To amend title 38, United States Code, to provide for improved and expedited

procedures for resolving complaints of unlawful employment discrimination arising within the Department of Veterans Affairs.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 23, 1993

Mr. MONTGOMERY (for himself, Mr. STUMP, Mr. EDWARDS of California, Mr.

SMITH of New Jersey, Mr. APPLEGATE, Mr. BILIRAKIS, Mr. EVANS, Mr.

QUINN, Mr. PENNY, Mr. ROWLAND, Mr. SLATTERY, Mr. KENNEDY, Mr.

SANGMEISTER, Ms. LONG, Mr. EDWARDS of Texas, Mr. CLEMENT, Mr.

FILNER, Mr. GUTIERREZ, Mr. BAESLER, Mr. BISHOP, Mr. CLYBURN,

Mr. KREIDLER, Ms. BROWN of Florida, Mr. HEFNER, Mr. RICHARDSON,

Mr. STENHOLM, Mr. PAYNE of Virginia, Mr. PARKER, and Mr. OLVER)

introduced the following bill; which was referred to the Committee on

Veterans’ Affairs

APRIL 22, 1993

Additional sponsors: Mr. SPENCE, Mr. RIDGE, Mr. TEJEDA, Mr. EMERSON,

Ms. WATERS, and Mrs. THURMAN

APRIL 22, 1993

Reported with amendments, committed to the Committee of the Whole House

on the State of the Union, and ordered to be printed

[Omit the part struck through and insert the part printed in italic]

A BILL

To amend title 38, United States Code, to provide for improved and expedited procedures for resolving complaints
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of unlawful employment discrimination arising within the

Department of Veterans Affairs.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Department of Veter5 ans Affairs Employment Discrimination Act’’.

6 SEC. 2. DEPARTMENT OF VETERANS AFFAIRS EMPLOY7 MENT DISCRIMINATION RESOLUTION PROCE8 DURES.

9 (a) IN GENERAL.—Title 38, United States Code, is

10 amended by inserting after chapter 7 the following new

11 chapter:

12 ‘‘CHAPTER 8—EMPLOYMENT

13 DISCRIMINATION

‘‘Sec.

‘‘801. Scope of chapter.

‘‘802. Office of Employment Discrimination Complaints Resolution.

‘‘803. Informal complaint resolution.

‘‘804. Investigation of complaints.

‘‘805. Final agency decision; hearings.

‘‘806. Review of final agency decisions.

‘‘807. Unlawful employment discrimination defined.

14 ‘‘§ 801. Scope of chapter

15 ‘‘(a) The procedures established in this chapter shall

16 be implemented in a manner consistent with procedures

17 applicable under regulations prescribed by the Equal Em18 ployment Opportunity Commission.
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1 ‘‘(b) Nothing in this chapter supersedes any right or

2 obligation of an employee to elect (in lieu of procedures

3 under this chapter) to raise an allegation of unlawful em4 ployment discrimination under the appeal procedures of

5 the Merit Systems Protection Board or under grievance

6 procedures established under a collective bargaining agree7 ment.

8 (b) In the case of an employee of the Department who

9 alleges that the employee has been subjected to unlawful em10 ployment discrimination (as defined in section 807 of this

11 title), the allegation shall be considered under the proce12 dures applicable to the Merit Systems Protection Board

13 under title 5 (rather than under the procedures set forth

14 in this chapter) if the action (or failure to act) of which

15 the employee complains is an employment action or prac16 tice that is otherwise appealable to the Merit Systems Pro17 tection Board.

18 (c) Nothing in this chapter supersedes—

19 (1) the rights and remedies available to employ20 ees under title VII of the Civil Rights Act of 1964 (42

21 U.S.C. 2000e et seq.), including the rights and rem22 edies provided in section 1977A of the Revised Stat23 utes (42 U.S.C. 1981a); or

24 (2) any right or obligation of an employee to

25 elect (in lieu of procedures under this chapter) to
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1 raise an allegation of unlawful employment discrimi2 nation under grievance procedures established under a

3 collective bargaining agreement.

4 ‘‘§ 802. Office of Employment Discrimination Com5 plaints Resolution

6 ‘‘(a)(1) There is in the Department an Office of Em7 ployment Discrimination Complaints Resolution (herein8 after in this chapter referred to as the ‘Office’), which

9 shall be headed by a Director. The Director shall report

10 only to the Secretary and Deputy Secretary.

11 ‘‘(2) Subject to the direction of the Secretary, the Di12 rector shall have sole responsibility within the Department

13 for administering the procedures under this chapter for

14 resolving complaints of unlawful employment discrimina15 tion arising within the Department.

16 ‘‘(3) In addition to the functions of the Director

17 under paragraph (2), the Director shall perform such

18 other functions as the Secretary may prescribe consistent

19 with the functions of the Director under paragraph (2).

20 ‘‘(b) The Secretary shall employ within the Office ad21 ministrative law judges appointed in accordance with sec22 tion 3105 of title 5 for the purposes of this chapter and

23 such other personnel as the Office may require. In ap24 pointing administrative law judges, the Secretary should

25 consider the composition of the persons appointed, taken as
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1 a group, in terms of race, sex, and veterans status, com2 pared with the composition of the total Department

3 workforce in terms of race, sex, and veterans status.

4 ‘‘(c) The Secretary shall ensure that the Director is

5 furnished sufficient resources to enable the Director to

6 carry out the functions of the Office under this chapter

7 in a timely manner.

8 ‘‘(d) The Secretary shall include in the documents

9 submitted to Congress by the Secretary in support of the

10 President’s budget for each fiscal year—

11 ‘‘(1) detailed information on the budget for the

12 Office;

13 ‘‘(2) the Secretary’s opinion as to whether the

14 resources (including the number of employees) pro15 posed in the budget for that fiscal year are adequate

16 to enable the Secretary to comply with statutory and

17 regulatory deadlines for the administration of the

18 procedures under this chapter and other provisions

19 of law relating to the resolution of complaints of un20 lawful employment discrimination involving the De21 partment; and

22 ‘‘(3) a report on the activities of the Office dur23 ing the preceding fiscal year, including (A) a state24 ment of the number and nature of complaints of un25 lawful employment discrimination received and the
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1 number and nature of complaints resolved, and the

2 results of any appellate review, during the year, (B)

3 a description of the timeliness of the resolution of

4 complaints during the year, and (C) a statement of

5 significant decisions and trends affecting the work of

6 the Office.

7 ‘‘(e)(1) The Director shall prescribe—

8 ‘‘(A) standards of timeliness for the expeditious

9 resolution of complaints of unlawful employment dis10 crimination under this chapter;

11 ‘‘(B) the qualifications and training require12 ments for employees of the Office; and

13 ‘‘(C) requirements for record-keeping pertaining

14 to counseling and investigations by employees of the

15 Office.; and

16 ‘‘(D) standards for the conduct of investigations

17 under section 804 of this title.

18 ‘‘(2) Regulations under paragraph (1) shall be con19 sistent with regulations prescribed by the Equal Employ20 ment Opportunity Commission, except that, in the interest

21 of the expeditious resolution of complaints, the Director

22 may prescribe shorter time periods with respect to any

23 deadline or administrative period that is applicable only

24 to the time within which the Government may (or is re25 quired to) act.
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1 ‘‘§ 803. Informal complaint resolution

2 ‘‘Employees of the Office shall counsel employees of

3 the Department, and applicants for employment with the

4 Department, who allege that they have been subject to un5 lawful employment discrimination by an officer or em6 ployee of the Department. The Office shall seek to resolve

7 such complaints in an expeditious and impartial manner

8 through informal investigation and conciliation using pro9 cedures prescribed by the Director.

10 ‘‘§ 804. Investigation of complaints

11 ‘‘(a) If a complaint of unlawful employment discrimi12 nation is filed with the Department and the complaint is

13 not resolved through the informal resolution process under

14 section 803 of this title, the Director shall assign the com15 plaint to an administrative law judge, who shall determine

16 whether the complaint shall be accepted for investigation.

17 ‘‘(b)(1) The administrative law judge assigned to a

18 complaint shall make such determination in accordance

19 with regulations of the Equal Employment Opportunity

20 Commission, except that if the administrative law judge

21 determines that the complaint is without merit, the admin22 istrative law judge may determine that the complaint is

23 not to be accepted for investigation.

24 ‘‘(2) A decision that a complaint is not to be accepted

25 for investigation is a final agency decision of the matter.
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1 ‘‘(c)(1) If the administrative law judge determines

2 that the complaint is to be accepted, the Director shall

3 promptly provide for an investigation of the complaint,

4 which shall be carried out by employees of the Office (or

5 by contract personnel acquired by the Director). The em6 ployee (or contractor) conducting the investigation shall

7 submit to the Director a complete written report of the

8 results of the investigation.

9 ‘‘(2) If a portion of a complaint is accepted for inves10 tigation and a portion is not accepted, the individual filing

11 the complaint or the Department may request the admin12 istrative law judge to direct the suspension of the inves13 tigation of the portion of the complaint accepted for inves14 tigation pending the results of any review of the decision

15 not to accept the other portion.

16 ‘‘(3) The Director shall furnish a copy of the inves17 tigative report (including a copy of the investigative file)

18 to the administrative law judge, the individual who filed

19 the complaint, and the individual whose actions, or failure

20 to act, gave rise to the complaint of unlawful employment

21 discrimination the Secretary. The administrative law judge

22 may direct that an additional investigation be made if the

23 administrative law judge determines that an additional in24 vestigation is warranted.
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1 ‘‘(d) The Director shall prescribe standards for the

2 conduct of investigations under this section.

3 ‘‘§ 805. Final agency decision; hearings

4 ‘‘(a) The final agency decision on a complaint of un5 lawful unemployment employment discrimination, in a

6 case not resolved through informal procedures under sec7 tion 803 of this title, shall be made by an administrative

8 law judge.

9 ‘‘(b) The individual filing the complaint may request

10 a hearing on the matter. Any such request shall be made

11 in such time and manner as may be prescribed by the Di12 rector. The administrative law judge shall grant a request

13 for a hearing unless, after giving appropriate notice and

14 allowing an opportunity to respond to such notice, the ad15 ministrative law judge determines that there is no genuine

16 dispute as to a material fact.

17 ‘‘(c) In acting upon a complaint, an administrative

18 law judge—

19 ‘‘(1) may conduct a hearing on the matter;

20 ‘‘(2) may refer the matter for a hearing by a

21 hearing examiner; or

22 ‘‘(3) may decide the matter without a hearing.

23 ‘‘(d) If a hearing is held, the hearing shall be subject

24 to section 556 of title 5.
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1 ‘‘(c) If the administrative law judge grants a request

2 of the individual filing the complaint for a hearing, the ad3 ministrative law judge—

4 ‘‘(1) may conduct the hearing on the matter; or

5 ‘‘(2) may refer the matter for a hearing by a

6 hearing examiner.

7 ‘‘(d) In any hearing under this section, the adminis8 trative law judge or hearing examiner presiding at the

9 hearing shall have the authorities set forth in section 556(c)

10 of title 5.

11 ‘‘§ 806. Review of final agency decisions

12 ‘‘(a) If the final agency decision in a case complaining

13 of unlawful employment discrimination by an officer or

14 employee of the Department is adverse to the individual

15 filing the complaint, the individual may appeal the deci16 sion to the Equal Employment Opportunity Commission

17 or to may institute an action on the case in the appropriate

18 United States district court, as provided by law.

19 ‘‘(b) If the final agency decision in such a case is

20 adverse to the Department, the Secretary may appeal the

21 decision to the Equal Employment Opportunity Commis22 sion. Any such appeal shall be made within 30 days after

23 the date of the receipt by the Secretary of the decision.

24 The Equal Employment Opportunity Commission may act
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1 on such an appeal in the same manner as in the case of

2 an appeal by an individual against a final agency decision.

3 ‘‘§ 807. Unlawful employment discrimination defined

4 ‘‘For purposes of this chapter, the term ‘unlawful em5 ployment discrimination’ means any action, or failure to

6 act, that is a violation of any of the following:

7 ‘‘(1) Title VII of the Civil Rights Act of 1964

8 (42 U.S.C. 2000e et seq.).

9 ‘‘(2) The Age Discrimination in Employment

10 Act of 1967 (29 U.S.C. 621 et seq.).

11 ‘‘(3) Section 6 of the Fair Labor Standards Act

12 of 1938 (29 U.S.C. 206).

13 ‘‘(4) Section 501 of the Rehabilitation Act of

14 1973 (29 U.S.C. 791).’’.

15 (b) CLERICAL AMENDMENT.—The tables of chapters

16 at the beginning of title 38, United States Code, and at

17 the beginning of part I of such title, are amended by in18 serting after the item relating to chapter 7 the following

19 new item:

‘‘8. Employment Discrimination .................................................. 801’’.

20 SEC. 3. TRANSITION.

21 Chapter 8 of title 38, United States Code, as added

22 by section 2, shall apply with respect to complaints of un23 lawful employment discrimination that are filed after the

24 end of the six-month period beginning on the date of the

25 enactment of this Act. Any complaint filed before the end
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1 of such period shall be resolved in accordance with the

2 procedures in effect on the date of the enactment of this

3 Act.

4 SEC. 4. WHISTLEBLOWER PROTECTION FOR TITLE 38 EM5 PLOYEES.

6 (a) IN GENERAL.—(1) Chapter 74 of title 38, United

7 States Code, is amended by inserting at the end of sub8 chapter V the following new section:

9 ‘‘§ 7465. Disclosures of violations of law, gross mis10 management, and certain other matters:

11 protection of employees

12 ‘‘(a) The provision of section 2302(b)(8) of title 5 shall

13 apply with respect to an employee, or applicant for employ14 ment, in a position covered by this chapter in the same

15 manner as if that position were a ‘covered position’ within

16 the meaning of section 2302(a)(2)(B) of title 5.

17 ‘‘(b) Subsection (a) shall apply for purposes of apply18 ing the provisions of subchapters II and III of chapter 12

19 of title 5 which relate to any authority to conduct investiga20 tions, or to seek or administer any corrective action, dis21 ciplinary action, or other remedy in connection with a pro22 hibited personnel practice described in section 2302(b)(8)

23 of such title.’’.
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1 (2) The table of sections at the beginning of such chap2 ter is amended by inserting after the item relating to section

3 7464 the following new item:

‘‘7465. Disclosures of violations of law, gross mismanagement, and certain other

matters: protection of employees.’’.

4 (b) EFFECTIVE DATE.—(1) Subject to paragraph (2),

5 section 7465 of title 38, United States Code, as added by

6 subsection (a), shall apply with respect to personnel actions

7 occurring before, on, or after the date of the enactment of

8 this Act, but subject to any deadline for commencing any

9 action for relief.

10 (2) Such section shall not affect any administrative

11 proceeding pending on the date of the enactment of this Act,

12 and order shall be issued in any such proceeding, and ap13 peals shall be taken therefrom, as if such section had not

14 been enacted.