VA Managers Will Soon Be Able to Track Employee Complaint Data

The Veterans Affairs Department in November will roll out a program that gives managers quantitative data about personnel disputes and complaints within the VA so they can track settlements and help instill greater accountability throughout the workforce.

The initiative, developed by VA’s Office of Human Resources and Administration, will use data analytics to ferret out “systemic personnel issues” to track department patterns of settling with employees who have filed discrimination, whistleblower and other personnel complaints, said VA General Counsel Leigh Bradley, during a Wednesday hearing before the House Veterans’ Affairs Committee.

“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,” Bradley said. “VA does recognize the need for tools that will help leaders identify negative trends at a particular facility to gauge an organization’s workplace culture and have more granular information about the frequency of complaints, litigation, and settlements and how bad actors are held accountable.”

Bradley said managers will be able to access data on the number of personnel cases the department has settled, and how much those settlements cost, for example.

The announcement came during a congressional hearing looking at how often the VA settles disputes – in some instances with payouts to employees -- to avoid lengthy and costly litigation with workers who file personnel complaints. Lawmakers on both sides of the aisle want more information on the settlement agreements -- flexibilities Congress granted to federal agencies during the 1990s to help them reduce the time and cost related to protracted legal battles -- as well as assurance that the VA is not using settlement payments to buy off or silence whistleblowers. Rosayma Lopez, a privacy officer and whistleblower at the Puerto Rico VA facility, reportedly has been offered more than $300,000 to leave the department. While Bradley believed that that particular incident was “anomalous,” she also said it was important for lawmakers and others to continue asking “hard questions” to ensure the proper use of such settlement payments.

The Office of Special Counsel, which handles whistleblower claims, has seen “a dramatic increase” in the number of whistleblower retaliation claims filed by VA employees since 2014, when the Phoenix wait-times scandal erupted, said Eric Bachmann, deputy special counsel. Between 2014 and 2016, prohibited personnel practice complaints filed by VA employees made up 30 percent to 35 percent of all such complaints OSC received across government.

Committee Chairman Jeff Miller, R-Fla., said the data that the department provided at his request on settlement agreements since 2014 “paints a disturbing picture” of the VA’s use of them and “raises more serious questions about who really benefits from these settlements; is it the taxpayers and veterans, or is it the wayward employees?” Of the 208 settlement agreements the VA has brokered since July 2014, 72 percent involved compensation to the employee and/or their attorney, totaling roughly $5 million. The average payout to employees was $24,305; the largest sum one individual received was $225,000, according to the data.

VA estimated that the cost of processing and investigating an EEO complaint, for instance, is roughly $35,000 – that does not include expenses related to travel, depositions and other legal matters if the case continues to move forward. And if VA loses, the department also is on the hook for back pay, damages and attorneys’ fees.

“While I understand that simply settling with an employee in certain circumstances can be a great tool for the department due to current lengthy disciplinary processes required by the 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,” Miller said.

The VA takes many factors into account when weighing a settlement, Bradley said, including the “disruption” the complaint creates for the facility’s workforce, the cost of litigation in time and money, and whether an employee “has been legitimately aggrieved and it is simply the right thing to do.” She also said that settling does not preclude pursuing accountability against a manager or other employee who may have wronged the complainant.

“If a settlement agreement is reached with an employee who filed an EEO [Equal Employment Opportunity] 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),” Bradley said.

Lawmakers also were concerned about the high incidence of “clean records” in settlement agreements: In 96 percent of the VA settlement agreements the committee reviewed, the discipline proposed or taken against the employee didn’t appear in their permanent record, which could mean that bad actors easily can move on to other federal jobs. But Bradley said the department can give a “neutral reference” for prospective employers who inquire about such employees, which includes basic information like dates of employment. That raises “red flags” for those inquiring about the employee’s performance, she said.

The VA, like many federal agencies, lacks a national policy on settling employment disputes within the department, something else that worried lawmakers.

But Bradley said the department didn’t need specific guidance, given the unique nature of many employee disputes.

“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,” Bradley said.