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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1032 Reported in House (RH)]

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

_______________________________________________________________________

                             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

                                                  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 of unlawful employment 
   discrimination arising within the Department of Veterans Affairs.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of Veterans Affairs 
Employment Discrimination Act''.

SEC. 2. DEPARTMENT OF VETERANS AFFAIRS EMPLOYMENT DISCRIMINATION 
              RESOLUTION PROCEDURES.

    (a) In General.--Title 38, United States Code, is amended by 
inserting after chapter 7 the following new chapter:

                 ``CHAPTER 8--EMPLOYMENT 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.
``Sec. 801. Scope of chapter
    ``(a) The procedures established in this chapter shall be 
implemented in a manner consistent with procedures applicable under 
regulations prescribed by the Equal Employment Opportunity Commission.
    -`-`-(-b-) -N-o-t-h-i-n-g -i-n -t-h-i-s -c-h-a-p-t-e-r 
-s-u-p-e-r-s-e-d-e-s -a-n-y -r-i-g-h-t -o-r -o-b-l-i-g-a-t-i-o-n -o-f 
-a-n -e-m-p-l-o-y-e-e -t-o -e-l-e-c-t -(-i-n -l-i-e-u -o-f 
-p-r-o-c-e-d-u-r-e-s -u-n-d-e-r -t-h-i-s -c-h-a-p-t-e-r-) -t-o 
-r-a-i-s-e -a-n -a-l-l-e-g-a-t-i-o-n -o-f -u-n-l-a-w-f-u-l 
-e-m-p-l-o-y-m-e-n-t -d-i-s-c-r-i-m-i-n-a-t-i-o-n -u-n-d-e-r -t-h-e 
-a-p-p-e-a-l -p-r-o-c-e-d-u-r-e-s -o-f -t-h-e -M-e-r-i-t -S-y-s-t-e-m-s 
-P-r-o-t-e-c-t-i-o-n -B-o-a-r-d -o-r -u-n-d-e-r -g-r-i-e-v-a-n-c-e 
-p-r-o-c-e-d-u-r-e-s -e-s-t-a-b-l-i-s-h-e-d -u-n-d-e-r -a 
-c-o-l-l-e-c-t-i-v-e -b-a-r-g-a-i-n-i-n-g -a-g-r-e-e-m-e-n-t-.
    (b) In the case of an employee of the Department who alleges that 
the employee has been subjected to unlawful employment discrimination 
(as defined in section 807 of this title), the allegation shall be 
considered under the procedures applicable to the Merit Systems 
Protection Board under title 5 (rather than under the procedures set 
forth in this chapter) if the action (or failure to act) of which the 
employee complains is an employment action or practice that is 
otherwise appealable to the Merit Systems Protection Board.
    (c) Nothing in this chapter supersedes--
            (1) the rights and remedies available to employees under 
        title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
        seq.), including the rights and remedies provided in section 
        1977A of the Revised Statutes (42 U.S.C. 1981a); or
            (2) any right or obligation of an employee to elect (in 
        lieu of procedures under this chapter) to raise an allegation 
        of unlawful employment discrimination under grievance 
        procedures established under a collective bargaining agreement.
``Sec. 802. Office of Employment Discrimination Complaints Resolution
    ``(a)(1) There is in the Department an Office of Employment 
Discrimination Complaints Resolution (hereinafter in this chapter 
referred to as the `Office'), which shall be headed by a Director. The 
Director shall report only to the Secretary and Deputy Secretary.
    ``(2) Subject to the direction of the Secretary, the Director shall 
have sole responsibility within the Department for administering the 
procedures under this chapter for resolving complaints of unlawful 
employment discrimination arising within the Department.
    ``(3) In addition to the functions of the Director under paragraph 
(2), the Director shall perform such other functions as the Secretary 
may prescribe consistent with the functions of the Director under 
paragraph (2).
    ``(b) The Secretary shall employ within the Office administrative 
law judges appointed in accordance with section 3105 of title 5 for the 
purposes of this chapter and such other personnel as the Office may 
require. In appointing administrative law judges, the Secretary should 
consider the composition of the persons appointed, taken as a group, in 
terms of race, sex, and veterans status, compared with the composition 
of the total Department workforce in terms of race, sex, and veterans 
status.
    ``(c) The Secretary shall ensure that the Director is furnished 
sufficient resources to enable the Director to carry out the functions 
of the Office under this chapter in a timely manner.
    ``(d) The Secretary shall include in the documents submitted to 
Congress by the Secretary in support of the President's budget for each 
fiscal year--
            ``(1) detailed information on the budget for the Office;
            ``(2) the Secretary's opinion as to whether the resources 
        (including the number of employees) proposed in the budget for 
        that fiscal year are adequate to enable the Secretary to comply 
        with statutory and regulatory deadlines for the administration 
        of the procedures under this chapter and other provisions of 
        law relating to the resolution of complaints of unlawful 
        employment discrimination involving the Department; and
            ``(3) a report on the activities of the Office during the 
        preceding fiscal year, including (A) a statement of the number 
        and nature of complaints of unlawful employment discrimination 
        received and the number and nature of complaints resolved, and 
        the results of any appellate review, during the year, (B) a 
        description of the timeliness of the resolution of complaints 
        during the year, and (C) a statement of significant decisions 
        and trends affecting the work of the Office.
    ``(e)(1) The Director shall prescribe--
            ``(A) standards of timeliness for the expeditious 
        resolution of complaints of unlawful employment discrimination 
        under this chapter;
            ``(B) the qualifications and training requirements for 
        employees of the Office; -a-n-d
            ``(C) requirements for record-keeping pertaining to 
        counseling and investigations by employees of the Office-.; and
            ``(D) standards for the conduct of investigations under 
        section 804 of this title.
    ``(2) Regulations under paragraph (1) shall be consistent with 
regulations prescribed by the Equal Employment Opportunity Commission, 
except that, in the interest of the expeditious resolution of 
complaints, the Director may prescribe shorter time periods with 
respect to any deadline or administrative period that is applicable 
only to the time within which the Government may (or is required to) 
act.
``Sec. 803. Informal complaint resolution
    ``Employees of the Office shall counsel employees of the 
Department, and applicants for employment with the Department, who 
allege that they have been subject to unlawful employment 
discrimination by an officer or employee of the Department. The Office 
shall seek to resolve such complaints in an expeditious and impartial 
manner through informal investigation and conciliation using procedures 
prescribed by the Director.
``Sec. 804. Investigation of complaints
    ``(a) If a complaint of unlawful employment discrimination is filed 
with the Department and the complaint is not resolved through the 
informal resolution process under section 803 of this title, the 
Director shall assign the complaint to an administrative law judge, who 
shall determine whether the complaint shall be accepted for 
investigation.
    ``(b)(1) The administrative law judge assigned to a complaint shall 
make such determination in accordance with regulations of the Equal 
Employment Opportunity Commission, except that if the administrative 
law judge determines that the complaint is without merit, the 
administrative law judge may determine that the complaint is not to be 
accepted for investigation.
    ``(2) A decision that a complaint is not to be accepted for 
investigation is a final agency decision of the matter.
    ``(c)(1) If the administrative law judge determines that the 
complaint is to be accepted, the Director shall promptly provide for an 
investigation of the complaint, which shall be carried out by employees 
of the Office (or by contract personnel acquired by the Director). The 
employee (or contractor) conducting the investigation shall submit to 
the Director a complete written report of the results of the 
investigation.
    ``(2) If a portion of a complaint is accepted for investigation and 
a portion is not accepted, the individual filing the complaint or the 
Department may request the administrative law judge to direct the 
suspension of the investigation of the portion of the complaint 
accepted for investigation pending the results of any review of the 
decision not to accept the other portion.
    ``(3) The Director shall furnish a copy of the investigative report 
(including a copy of the investigative file) to the administrative law 
judge, the individual who filed the complaint, and -t-h-e 
-i-n-d-i-v-i-d-u-a-l -w-h-o-s-e -a-c-t-i-o-n-s-, -o-r -f-a-i-l-u-r-e 
-t-o -a-c-t-, -g-a-v-e -r-i-s-e -t-o -t-h-e -c-o-m-p-l-a-i-n-t -o-f 
-u-n-l-a-w-f-u-l -e-m-p-l-o-y-m-e-n-t -d-i-s-c-r-i-m-i-n-a-t-i-o-n the 
Secretary. The administrative law judge may direct that an additional 
investigation be made if the administrative law judge determines that 
an additional investigation is warranted.
    -`-`-(-d-) -T-h-e -D-i-r-e-c-t-o-r -s-h-a-l-l -p-r-e-s-c-r-i-b-e 
-s-t-a-n-d-a-r-d-s -f-o-r -t-h-e -c-o-n-d-u-c-t -o-f 
-i-n-v-e-s-t-i-g-a-t-i-o-n-s -u-n-d-e-r -t-h-i-s -s-e-c-t-i-o-n-.
``Sec. 805. Final agency decision; hearings
    ``(a) The final agency decision on a complaint of unlawful 
-u-n-e-m-p-l-o-y-m-e-n-t employment discrimination, in a case not 
resolved through informal procedures under section 803 of this title, 
shall be made by an administrative law judge.
    ``(b) The individual filing the complaint may request a hearing on 
the matter. Any such request shall be made in such time and manner as 
may be prescribed by the Director. The administrative law judge shall 
grant a request for a hearing unless, after giving appropriate notice 
and allowing an opportunity to respond to such notice, the 
administrative law judge determines that there is no genuine dispute as 
to a material fact.
    -`-`-(-c-) -I-n -a-c-t-i-n-g -u-p-o-n -a -c-o-m-p-l-a-i-n-t-, -a-n 
-a-d-m-i-n-i-s-t-r-a-t-i-v-e -l-a-w -j-u-d-g-e---
            -`-`-(-1-) -m-a-y -c-o-n-d-u-c-t -a -h-e-a-r-i-n-g -o-n 
        -t-h-e -m-a-t-t-e-r-;
            -`-`-(-2-) -m-a-y -r-e-f-e-r -t-h-e -m-a-t-t-e-r -f-o-r -a 
        -h-e-a-r-i-n-g -b-y -a -h-e-a-r-i-n-g -e-x-a-m-i-n-e-r-; -o-r
            -`-`-(-3-) -m-a-y -d-e-c-i-d-e -t-h-e -m-a-t-t-e-r 
        -w-i-t-h-o-u-t -a -h-e-a-r-i-n-g-.
    -`-`-(-d-) -I-f -a -h-e-a-r-i-n-g -i-s -h-e-l-d-, -t-h-e 
-h-e-a-r-i-n-g -s-h-a-l-l -b-e -s-u-b-j-e-c-t -t-o -s-e-c-t-i-o-n 
-5-5-6 -o-f -t-i-t-l-e -5-.
    ``(c) If the administrative law judge grants a request of the 
individual filing the complaint for a hearing, the administrative law 
judge--
            ``(1) may conduct the hearing on the matter; or
            ``(2) may refer the matter for a hearing by a hearing 
        examiner.
    ``(d) In any hearing under this section, the administrative law 
judge or hearing examiner presiding at the hearing shall have the 
authorities set forth in section 556(c) of title 5.
``Sec. 806. Review of final agency decisions
    ``(a) If the final agency decision in a case complaining of 
unlawful employment discrimination by an officer or employee of the 
Department is adverse to the individual filing the complaint, the 
individual may appeal the decision to the Equal Employment Opportunity 
Commission or -t-o may institute an action on the case in the 
appropriate United States district court, as provided by law.
    ``(b) If the final agency decision in such a case is adverse to the 
Department, the Secretary may appeal the decision to the Equal 
Employment Opportunity Commission. Any such appeal shall be made within 
30 days after the date of the receipt by the Secretary of the decision. 
The Equal Employment Opportunity Commission may act on such an appeal 
in the same manner as in the case of an appeal by an individual against 
a final agency decision.
``Sec. 807. Unlawful employment discrimination defined
    ``For purposes of this chapter, the term `unlawful employment 
discrimination' means any action, or failure to act, that is a 
violation of any of the following:
            ``(1) Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e et seq.).
            ``(2) The Age Discrimination in Employment Act of 1967 (29 
        U.S.C. 621 et seq.).
            ``(3) Section 6 of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 206).
            ``(4) Section 501 of the Rehabilitation Act of 1973 (29 
        U.S.C. 791).''.
    (b) Clerical Amendment.--The tables of chapters at the beginning of 
title 38, United States Code, and at the beginning of part I of such 
title, are amended by inserting after the item relating to chapter 7 
the following new item:

``8. Employment Discrimination..............................     801''.

SEC. 3. TRANSITION.

    Chapter 8 of title 38, United States Code, as added by section 2, 
shall apply with respect to complaints of unlawful employment 
discrimination that are filed after the end of the six-month period 
beginning on the date of the enactment of this Act. Any complaint filed 
before the end of such period shall be resolved in accordance with the 
procedures in effect on the date of the enactment of this Act.

SEC. 4. WHISTLEBLOWER PROTECTION FOR TITLE 38 EMPLOYEES.

    (a) In General.--(1) Chapter 74 of title 38, United States Code, is 
amended by inserting at the end of subchapter V the following new 
section:
``Sec. 7465. Disclosures of violations of law, gross mismanagement, and 
              certain other matters: protection of employees
    ``(a) The provision of section 2302(b)(8) of title 5 shall apply 
with respect to an employee, or applicant for employment, in a position 
covered by this chapter in the same manner as if that position were a 
`covered position' within the meaning of section 2302(a)(2)(B) of title 
5.
    ``(b) Subsection (a) shall apply for purposes of applying the 
provisions of subchapters II and III of chapter 12 of title 5 which 
relate to any authority to conduct investigations, or to seek or 
administer any corrective action, disciplinary action, or other remedy 
in connection with a prohibited personnel practice described in section 
2302(b)(8) of such title.''.
    (2) The table of sections at the beginning of such chapter is 
amended by inserting after the item relating to section 7464 the 
following new item:

``7465. Disclosures of violations of law, gross mismanagement, and 
                            certain other matters: protection of 
                            employees.''.
    (b) Effective Date.--(1) Subject to paragraph (2), section 7465 of 
title 38, United States Code, as added by subsection (a), shall apply 
with respect to personnel actions occurring before, on, or after the 
date of the enactment of this Act, but subject to any deadline for 
commencing any action for relief.
    (2) Such section shall not affect any administrative proceeding 
pending on the date of the enactment of this Act, and order shall be 
issued in any such proceeding, and appeals shall be taken therefrom, as 
if such section had not been enacted.
```