SPEAKERS CONTENTS INSERTS
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SEXUAL HARASSMENT IN THE VA
THURSDAY, APRIL 17, 1997
House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Veterans' Affairs,
Washington, DC.
The subcommittee met, pursuant to call, at 9:37 a.m. in room 334, Cannon House Office Building, Hon. Terry Everett (chairman of the subcommittee) presiding.
Present: Representatives Everett, Stump, Buyer, Bilirakis, Clyburn, Evans and Snyder.
OPENING STATEMENT OF CHAIRMAN EVERETT
Mr. EVERETT. The hearing will come to order. Please cease all conversations.
Good morning. Today's hearing by the Subcommittee on Oversight and Investigations will examine sexual harassment issues in Department of Veterans Affairs. This is the first hearing of the 105th Congress for this subcommittee sitting alone.
Only yesterday we had a joint hearing with the Subcommittee on Health on another very important topic, the illness being suffered by Persian Gulf veterans.
Our hearing is at the request of Mr. Bilirakis of Florida, one of the most senior and active members of the full committee. He specifically requested a hearing on sexual harassment after learning of the demotion and transfer of a former VA medical center director of a Fayetteville VA Medical Center in North Carolina to the Bay Pines VA Medical Center in Florida.
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Without objection, his letter of March 5, 1997, will be made a part of the record.
His district is served by the medical center, and he has asked to participate in this hearing, although he is not assigned to this subcommittee. We are happy to have him here, and I commend him for taking this serious action.
Unfortunately, this is not the first time sexual harassment issues have been before this committee. Over 4 years ago when our present full committee Ranking Democratic Member, Mr. Evans, was chairman of this subcommittee, similar hearings occurred. I believe our Ranking Member, Mr. Clyburn, who will join us shortly, took an active in the second one back when he and I were relatively new to the committee.
We are not new anymore, and we are disappointed in what we have seen.
During the Subcommittee on Oversight and Investigations hearing in September 1992, Ms. Donna Grabarczyk, a VA employee who still is on leave without pay status, stated in testimony, and I quote, ''Since when is a transfer a disciplinary action? Transfers are not the solution for habitual harassers, and by transferring these people the VA merely enables them in their illegal behavior and avoids disciplinary action.''
As a result of these hearings 4 years ago, the committee unanimously reported and the House passed a bipartisan bill, H.R. 1032, in April 1993 to provide for improved and expedited procedures for resolving complaints of unlawful employment discrimination arising within the VA. That, of course, includes sexual harassment.
However, Secretary Brown took the position that such a bill was unnecessary and that administrative actions combined with proposed legislation to cover the entire government would address the problems.
The Senate did not take up the House bill. The government-wide legislation was not enacted. Given what has happened, Mr. Evans and I intend to pick up where the previous legislation effort left off, and there will be more action soon.
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I do not question Secretary Brown's sincerity or his commitment to the zero tolerance policy he has implemented in the VA. Quite the contrary, it was a positive and necessary step.
However, nothing has been done to effectively remedy the problem the House legislation would have addressed. While the VA has a zero tolerance policy, it still has a long way to go in reaching zero tolerance and needs some help.
Back in 1993, Bob Stump, our now full committee Chairman, said the oversight hearings revealed a lack of employee confidence in fairness and timeliness of VA's EEO system, as well as fears of reprisal. Based on my review of the statements by today's witnesses, I believe the same lack of confidence and fears still exist.
Until the EEO's process in the VA becomes essentially independent of local management, I do not see how the trust of rank and file employees in the VA EEO system can be improved. I will be most interested in exploring this with our VA witnesses.
During this hearing we will have witnesses from the Fayetteville Medical Center, the EEOC, the VA, the VA Inspector General's Office, and from federal employee unions and associations.
Because the first panel of witnesses will testify about specific sexual harassment and abusive treatment which allegedly occurred at Fayetteville, I wish to advise any parents with children here today to exercise discretion in allowing them to stay.
The subcommittee's distinguished Ranking Democratic Member, Mr. Clyburn, prior to coming to Congress, was South Carolina's Human Affairs Commissioner and so his interest and expertise in EEO and sexual harassment are particularly welcome, and we will hear from him later today.
At this particular time, I would like to recognize the chairman of the full committee, Mr. Stump, for any statement he would like to make.
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Mr. STUMP. I do not have an opening statement. Thank you.
Mr. EVERETT. Mr. Evans, our Ranking Member on the full committee.
OPENING STATEMENT OF HON. LANE EVANS, RANKING MEMBER, FULL COMMITTEE ON VETERANS' AFFAIRS
Mr. EVANS. Thank you, Mr. Chairman, and I want to thank you and Jim Clyburn for holding this hearing.
Obviously this is a great issue for us, and we are pursuing it on a bipartisan basis, and I look forward to working with you in terms of following up on those hearings in 1992.
Some of you may recall the compelling testimony we heard during the 1992 hearing from Donna Grabarczyk. She testified that she had been sexually assaulted by the Chief of Fiscal Service at the Lyons, New Jersey Veterans Hospital where she worked. It took the VA 7 months to investigate her allegations, and in the meantime, she was forced to live in the constant fear of another confrontation with her assailant.
Once the VA completed its investigation, the proposed resolution was to encourage her to transfer to another facility. Her harasser was allowed to take disability retirement.
In the meantime, Ms. Grabarczyk was diagnosed with post-traumatic stress disorder because of harassment by the Director of an institution that is supposed to be helping veterans deal with their post-traumatic stress disorder problems.
Two months after her 1992 testimony, Ms. Grabarczyk was placed on leave without pay from the VA because of her harassment-related illness. She has been receiving regular medical care and therapy since December 1992. Her doctor has diagnosed her with a temporary total disability, and she is currently receiving worker's compensation because of her illness.
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She tells us she presently takes three different medications each day to treat her PTSD.
Mr. Chairman, Donna Grabarczyk's story is not a happy one. When we heard her testimony in 1992, most of us may have reasonably concluded that the worst was behind her and that there would be only minimal long-term effects from her harassment.
Obviously her troubles have not gone away since 1992. It is a tribute to the leadership of this subcommittee that the interest in this issue has not subsided since that time.
Until the VA truly addresses sexual harassment at the regional and facility levels, stories like the ones we have heard from Donna Grabarczyk, and stories like the ones we will be hearing today, will continue to be played throughout the halls of the Department of Veterans Affairs.
I believe it is our responsibility to do all we can as members of the committee to see to it that there is no need for this type of hearing 5 years from now.
In closing, I want to make it clear that I do not question Secretary Brown's personal commitment to eradicate the festering problem of sexual harassment in the VA. The Secretary's zero tolerance policy instituted in 1993 was a strong step in the right direction.
But until the VA can show that its policy has teeth, we will continue to keep the heat on the VA on this issue in the months and years to come. Our veterans and our employees of the VA who served us well should expect and deserve no less.
Thank you, Mr. Chairman, and at this point I would like to enter into the record a statement from Donna Grabarczyk, dated April 17, 1997. Unfortunately, because of a very serious illness in her family, she is not able to join us today, despite her willingness to do so, and I would ask that this statement be made part of the record.
Mr. EVERETT. Without objection, so ordered.
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[The attachment appears on p. 110.]
Mr. EVANS. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you, Lane.
Mr. Bilirakis.
OPENING STATEMENT OF HON. MICHAEL BILIRAKIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. BILIRAKIS. Mr. Chairman, thank you, and my thanks to Chairman Stump for responding to the request for scheduling today's hearing and also for giving me the opportunity to be a part of it.
During the 102nd Congress, as mentioned by both you and Mr. Evans, when the sexual harassment hearing was held, I served as the Ranking Minority Member of this same committee with Mr. Evans. At that time we heard from several VA employees who had been the victims of sexual harassment. It took a great deal of courage for these women to come forward and share their experiences with our committee, and many of these women were also subjected to acts of retaliation by their abusers and other VA employees.
Their perception, and I believe you mentioned this, which was shared by many other employees was that the VA did not take sexual harassment complaints seriously. There is a great deal of suspicion and distrust caused by too many years of apparent toleration of unacceptable behavior.
Without question, that hearing revealed that the process in place at the VA for investigating sexual harassment complaints was seriously flawed, and consequently, Mr. Chairman, this committee unanimously approved legislation which was later passed by the House to address the problems at the VA, and that was H.R. 1032, which would have provided for improved and expedited procedures for resolving complaints of employment discrimination, including sexual harassment complaints.
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When we considered H.R. 1032, Secretary Brown opposed the passage because he preferred to take administrative action instead. The Senate did not act on the bill, and it was never enacted into law.
To his credit, as mentioned by both you and Mr. Evans, and I certainly endorse your remarks in that regard, Secretary Brown did establish a policy of zero tolerance within the department early in his tenure as Secretary, and I guess the question facing us today is whether or not that policy is sufficient.
Almost 5 years after our first hearing, we're faced with a similar situation at the VA. Mr. Evans certainly set this out very, very clearly. Of course, this has been brought to our attention, I suppose, principally because of the Director of the Fayetteville Medical Center who was found to have sexually harassed one female employee, et cetera, et cetera.
The Director, as we know, was transferred to the Bay Pines VA Medical Center in St. Petersburg, which serves many of the veterans of my congressional district. He was allowed to retain a salary of more than $100,000 in a position created specifically for him.
I have, and I am sure all of us have heard from many of our constituents who are outraged by the department's actions on this matter. They do not believe that the VA took any punitive action against a senior VA employee.
I, too, have reviewed the testimony of today's witnesses. Sadly their stories do mirror those that we first heard in 1992, and despite the Secretary's zero tolerance policy, it appears that the VA has failed to adequately implement sufficient administrative procedures that deal with such complaints.
I know from their testimony that our witnesses believe that their harasser was not properly or adequately punished. In fact, they feel he was rewarded, and that is certainly the feeling that I had when I found out about it. He was clearly rewarded for his actions, not that that was the intent, but it would seem that way. Being sent to St. Petersburg, FL, certainly does not seem to me to be a very punitive type of thing.
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He got to be there with a raise in salary. This certainly appears to be the case. I am concerned that the VA's policy of zero tolerance has, at best, not been implemented uniformly and, at worst, has been ignored, and, Mr. Chairman, that is the reason you are holding this hearing.
The rest of my statement I would ask unanimous consent to be made a part of the report, and thank you so very much, sir, for being so diligent.
[The prepared statement of Congressman Bilirakis appears on p. 111.]
Mr. EVERETT. Thank you. Mr. Snyder.
OPENING STATEMENT OF HON. VIC SNYDER
Mr. SNYDER. Thank you, Mr. Chairman.
Let me just say briefly I am real interested as a new member. Coming in the middle of the movie, the issues that are going to concern me are: do we have the right policy? Do we have the right people enforcing the policy? And then the third issue: are there other legal obstructions to the enforcement of that policy that we may need to look at and make changes to help the VA fulfill its goal of having zero tolerance?
And I appreciate the participation of everyone today.
Thank you, Mr. Chairman.
Mr. EVERETT. Thank you. Mr. Buyer.
OPENING STATEMENT OF HON. STEVE BUYER
Mr. BUYER. Mr. Chairman, I have to you an inquiry before I make a statement. I was under the understanding with you in a conversation at least 3 weeks ago that you were going to be sending out an invitation to Secretary Brown for him to appear here today, and I would like for you to explain to me whether or not that invitation ever went to the Secretary, and if so, did he respond, and what was that response?
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Mr. EVERETT. Mr. Buyer, the Secretary was invited. We invited the Secretary himself to this hearing today.
Mr. BUYER. Do you know what the date of that letter is that went out?
Mr. EVERETT. I have the staff now looking it up.
April 2.
Mr. BUYER. On April 2. All right, and what kind of response did you get from the Secretary?
Mr. EVERETT. The Secretary said he would be unable to attend, but he did designate the Assistant Secretary or Deputy.
Mr. BUYER. Did the Secretary say why he was unable to attend here today?
Mr. EVERETT. No, I have no knowledge why.
Mr. BUYER. Do you know what the date of his response was to us?
Mr. EVERETT. Can we have a copy of that letter?
Mr. BUYER. This is it, his response? April 14?
Mr. EVERETT. Right.
Mr. BUYER. I had a conversation with someone from the Secretary's staff in the hall yesterday after our meeting in which I asked. I had heard that the Secretary may not appear, and she said the Secretary was in California at a ceremony for the opening of a homeless shelter, but they never informed you of that?
Mr. EVERETT. No, I was not informed.
Mr. BUYER. I also was informed that the Secretary is back in town today and arrived perhaps about 2 hours before this hearing.
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I only want to bring that to your attention because it concerns me. Several of you are colleagues of mine on the National Security Committee, and you are well aware that I have been tasked by the chairman, Floyd Spence, to conduct the inquiry into sexual harassment, misconduct, fraternization in the U.S. military.
We also know about the zero tolerance policy we have in the U.S. military, and it appears that as we do this all-Service review with Tillie Fowler and Jane Harmon that a policy is great on paper, and that while the military is under many different attacks with regard to culture, I have a clear understanding that it is the leadership that sets the tone of the environment.
And I just wanted to say to you, Mr. Chairman, that I am disappointed the Secretary is not here, and that I will be a good listener throughout this, but I will ask of you whether or not there will be a follow-up hearing and if so, request the Secretary be here.
I have read the documents that you submitted to us last night, and I was left with a very strong sense that it appears that the VA has a ''Club Med'' level of punishment for sexual harassment that is unacceptable, and I want to have follow-on conversations with you in private.
Mr. EVERETT. I would be glad to. I would tell the gentleman that this is not the last hearing that we will have. I will also tell the gentleman that we will probably have continuous hearings on this matter until the issue is resolved to the satisfaction of this committee.
Mr. BUYER. Mr. Chairman, in the National Security Committee, the Secretaries of the Navy, the Army, the Air Force, all come and respond to us. The Secretary of Defense responds to us on this issue, and for the Secretary of the VA not to come here and respond and to be publicly accountable is unacceptable.
Mr. EVERETT. I thank the gentleman.
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The chair will now recognize Mr. Clyburn, our Ranking Member of the subcommittee.
OPENING STATEMENT OF HON. JAMES E. CLYBURN
Mr. CLYBURN. Thank you very much, Mr. Chairman.
I am pleased to be here and join with you today, and I thank you for calling this important hearing, and I apologize for trying to get too much crowded into the morning.
There have been numerous and disturbing reports of the VA fostering a work environment in which women are discouraged from filing charges of sexual harassment and which insulated the most senior level officials from disciplinary action, even in light of substantiated allegations of harassment.
My close association with the Department of Veterans Affairs goes back many years, long before my joining this committee. My wife retired in 1993 from the Dorn Veterans' Hospital in Columbia after almost 30 years of service. I know this department very well.
I am particularly concerned with the serious allegations involving some of the Department's most senior career managers. I am even more concerned about the Department's handling of these cases, and what has been reported as insufficient disciplinary actions with regard to the perpetrators of these abuses.
Subsequent to this committee's hearings on this issue, in the 103rd Congress Secretary Brown announced and implemented a zero tolerance policy for sexual harassment. As mentioned by Chairman Everett, prior to coming to the Congress I spent 18 years as the South Carolina Commissioner of Human Affairs, heading an agency whose mission and authority include insuring fairness and equality in the work place.
I am interested in finding out how the Department of Veterans Affairs insures the same fairness in its work place and protects its employees from sexual harassment, how it investigates charges, and disciplines those who violate its policies.
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I look forward to this testimony this morning, and I am hopeful when it is all said and done we will, in fact, have a zero tolerance policy.
Mr. EVERETT. I thank the gentleman, and I state again that the gentleman's expertise in this field is welcomed not only by this committee, but by this Congress.
Mr. CLYBURN. Thank you.
Mr. EVERETT. I would like to welcome all of the witnesses testifying today. I realize some of our witnesses have taken time from their daily lives and have had to travel some distance to testify. I want to thank all of you in advance for being here today.
For those witnesses who are essentially private citizens and happen to be VA employees, it takes real courage to make public statements about difficult experiences and highly personal matters, and I understand that and appreciate it.
Because of the nature of some of today's testimony, I am taking an unusual step for this subcommittee hearing and have decided to have the witness panels who have direct knowledge of events testify under oath. All of these witnesses have involvement with Fayetteville or decisions made about this case.
Prior to seating the first panel of witnesses and in order to facilitate questioning, I ask unanimous consent to place the following documents in the hearing record.
Number one, the VA OIG report Number 7PR–GO2–007, dated November 8, 1996, alleged improper conduct by senior official, VA Medical Center, Fayetteville, NC, redacted.
Number two, VA Network 6 special inquiry report, subject, management effectiveness at VA Medical Center, Fayetteville, NC, dated September 26, 1996. The VA refers to this as the Whatley report. David Whatley, the author, is the VAMC Director in Augusta, GA.
Number three, VA letter of proposed removal from Dr. Leroy Gross to Jerome Calhoun, dated October 23, 1993.
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Number four, VA letter of rescission of proposed adverse action from Dr. Leroy Gross to Jerome Calhoun, dated September 6, 1996.
Number five, VA agreement of informal resolution, Jerome Calhoun, executed by Jerome Calhoun and Dr. Leroy Gross on January 14, 1997, and by Dr. Jule Moravec on January 16, 1997.
I ask that each witness limit your oral testimony to 5 minutes, and I so order that those documents be put in the record.
(See. p. 116.)
Mr. EVERETT. I ask each witness to limit your oral testimony to 5 minutes. Your complete written statements will be made part of the official hearing record.
I ask that we hold our questions until the entire panel has testified.
Will the first panel please rise and raise your right hands and repeat after me?
[Witnesses sworn.]
Mr. EVERETT. Please be seated.
The committee will now recognize our first witness, Ms. Cynthia Force.
STATEMENT OF CYNTHIA A. FORCE, DEPARTMENT OF VETERANS AFFAIRS EMPLOYEE
Ms. FORCE. Good morning. Thank you for convening this hearing and inviting me.
Mr. EVERETT. Ms. Force, would you please pull that mic just a little bit closer to you, ma'am.
Ms. FORCE. Okay. Is that better?
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Mr. EVERETT. That is better.
Ms. FORCE. Prior to being forced to relocate to my current position, I had been assigned to work at the VA Medical Center, Fayetteville, NC. I worked as a budget analyst after being forced to ask for reassignment from my position as Chief, Medical Care Cost Recovery.
For the relevant period of time which I was employed at the VA Medical Center, Fayetteville, Jerome Calhoun served as Director. I, however, worked under the direct supervision of the Chief, Fiscal Service. It was Jerome Calhoun's unlawful behavior that forced me to leave the Fayetteville Medical Center where I had worked for 23 years.
Beginning in the fall of 1994, Jerome Calhoun asked me to have a personal relationship with him on two different occasions and once made an inappropriate comment about my body. These statements made me feel uncomfortable. I had a fear of reprisal for refusal to accept his offer. I felt demeaned and demoralized.
The working relationship started to fall apart shortly after the first two comments were made. On one occasion he became so furious that I was afraid he was actually going to strike me. He started to scream and curse at me, and he left the office, came back and started to scream again.
He later apologized to me and stated that he really missed the days when if a woman got out of line, you could just slap her around.
On May 8, I was informed by my supervisor that I was being removed from my position at Calhoun's request. My position description had been rewritten from a GS–9 to an 11–12, but I was not to be promoted to the new grade. No reason was given to me for my removal, except that Calhoun was not happy with my performance.
I asked to meet with Calhoun for an explanation of my removal, and on May 9, a meeting was held including me, Calhoun, the Chief Fiscal Officer, the EEO manager, health systems specialist, Acting Chief of Human Resources, and the Associate Director.
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I remarked that the only comment he had ever made to me regarding my performance was that you have a lot to learn, but you are doing a good job, and that did not equate to poor performance to me.
He responded that if he did not make himself clear, that that was something that he had to work on as a Director. He informed me that I could remain as MCCR Coordinator and be put on a performance improvement plan and he'd get rid of me in 90 days, or I could accept the position that was being offered by my supervisor as budget analyst.
From his remark it was clear to me that no matter what I did, in 90 days he would get rid of me. Even though I knew I was not qualified for the position of budget analyst, on May 24, 1995, as directed, I signed a memorandum requesting reassignment to the budget analyst position. Effective June 11, I was reassigned.
In June 1995, Calhoun had barred me from going into the main VA building at the Fayetteville facility. My supervisor was instructed to inform me of this decision. My duties were changed in order to accommodate this mandate. To the best of my knowledge and belief, this was never done to anyone else.
In July 1995, Calhoun and his wife encountered me at a roadside clean-up. My shoelace was untied, and Calhoun and got on bended knee to tie the shoe. He stated while doing this, ''When you're going to murder someone, you tie their shoes backwards so that it looks like they tied them themselves.''
I saw this as yet another threat not to my personal safety, but to my employment. Everywhere that I went for help I heard things like, ''Don't try to fight him. He's the Director, an African American Director. He was appointed by Jesse Brown. You may win the battle, but you will lose the war.'' I honestly felt like I had nowhere to turn.
I tried to find other positions within MCCR at VA facilities because of the hostile work environment and the fact that I felt sure he had plans to get rid of me altogether. All the positions for which I applied were canceled.
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I did secure a lateral position at another North Carolina VA and transferred there in October of 1995. This position was not in my career field and has no promotion potential. After 3 months of commuting several hours, I moved with my children and household goods at great expense, emotional, physical, and financial.
Since this time I have also been diagnosed as suffering from post-traumatic stress disorder, and I am currently on medication.
I was relieved that Calhoun had been removed from SES when I read the IG report. I just would like to feel more confident that he will not have the opportunity to return to any type of supervisory position.
I was a bit surprised when his punishment was announced. I never thought that he would be rewarded by being sent to the place he wanted to be with a raise in salary.
Additionally, all his moving expenses, as I understand, were paid, and if his house does not sell, the VA will purchase it. Unfortunately, I was not that fortunate.
It concerns me that at no time have the victims been contacted by anyone in headquarters. The only information I have received has been in the IG report and what I read in the newspapers. I read in the newspapers that headquarters had empathy for me, but I was not sure how that was possible since they had never had any contact with me.
Additionally, I read that the settlement with Calhoun was made in the best interest of all concerned. I guess I was of no concern.
There seems to have been much concern about how Calhoun could finish out his career, but no concern for what happens to mine. I never began this fight for what I could get out of it. However, when the accuser is so obviously rewarded, where is the justice for the victims?
A representative of this committee explained the reason for the settlement, which I much appreciated. Had this been explained to me earlier, I might not have felt so patronized, insulted and, frankly, victimized once again.
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What has been of greatest concern to me has been the implication that I filed sexual harassment charges because of inappropriate comments of a sexual nature. These have been the statements that have been made by the headquarters offices. I would have never gone through the hell of the past 2 years for comments made to me. Calhoun is not the first man who ever made inappropriate comments of a sexual nature. He is, however, the first man who tried to destroy my life when I rebuffed those comments.
The findings of the IG were quid pro quo sexual harassment and sexual harassment for a hostile work environment. Those are the reasons that I filed the charges, and those are the allegations that were proven by the Inspector General. I resent the implications made to the contrary.
Thank you very much.
[The prepared statement of Ms. Force appears on p. 158.]
Mr. EVERETT. Thank you. You may proceed.
STATEMENT OF SUSAN CARUANA, DEPARTMENT OF VETERANS AFFAIRS EMPLOYEE
Ms. CARUANA. My name is Susan Caruana. I am pleased and honored to have been invited to present my testimony before such a distinguished audience.
I have worked for the Federal Government for 31 years. All but 1 1/2 years have been in the VA system.
I feel betrayed by the very system by which I am employed. I worked for Jerome Calhoun at the Buffalo VA Medical Center from June 9, 1985, until March 1994. He was appointed as Director of the Fayetteville, North Carolina, VA Medical Center in April 1994 by Secretary Jesse Brown.
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Shortly after his transfer to Fayetteville, he informed me that the Secretary to the Director position would soon be vacant and asked if I would be interested in applying. After much thought and contemplation, I decided to apply as it was a GS–8, Target 9 in one year, and I was a GS–7 with no promotion potential.
I was selected, excited about this promotion and career opportunity, and looked forward to the impending challenge.
Calhoun repeatedly promised me that I would eventually retire as a GS–11 or 12. Since I had worked with him for several years, considered him a friend and respected his position, I felt comfortable, though nervous of the move to a new area of the country alone.
I was performing the job to the best of my ability. However, the hostile work environment, repeated threats, verbal abuse, intimidation, and stressful conditions he created resulted in an atmosphere not conducive to my best performance. For example, he told me if I did not request a reassignment, he would make my life miserable and I would be a GS–3 by the time he was finished with me.
On another occasion I was threatened to be placed on a performance improvement plan and have 90 days to prove myself, but there is no documentation in my personnel records to substantiate less than satisfactory performance.
In fact, at his initiation, I received a $1,200 special award in 1995 for my superior performance.
After my coerced reassignment, I felt mortified, rather like a little girl made to stand in the corner. To add insult to injury, after this reassignment, he had the audacity to tell me he had a dream that he slept with me. I told him that I would never do that. He said it could be worth my while.
I transferred to Fayetteville as the Administrative Assistant to the Director, was illegally coerced by Calhoun into eventually requesting a reassignment in September 1995 after several months of hell, and then replaced by an individual who was hired without following established merit promotion procedures. I was under the impression that there were rules and regulations prohibiting such incidents from occurring.
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Under the EEO system in July 1996, I filed a formal sexual harassment complaint against Calhoun. Filing any EEO complaint is futile. The system never finds in the complainant's favor.
Prior to the actual EEO investigation, I was presented with a formal written statement in which I would receive my promotion to a GS–9 if I dropped my EEO charges. I emphatically refused to sign this agreement, noting I would not consent to this compromise under any circumstances and was insulted at the proposal.
As a victim, I lost my self-respect, felt worthless, powerless, frustrated, embarrassed, humiliated, and after experiencing total emotional distress, it was necessary to seek medical treatment over 1 year ago, which is still ongoing. I was diagnosed with severe depression and placed on medication, which I am still taking. To date the cost of this care is my responsibility.
I have been punished for acts beyond my control. I feel I have lost everything, and he has not suffered at all. The emotional ordeal and upheaval to the victims deserve appropriate corrective action, not a selective forgetfulness by the VA.
The IG investigation concluded that Calhoun's behavior was abusive, threatening, inappropriate, and that he had sexually harassed one woman employee and mistreated two others. I was sexually harassed. The fact the IG did not find in my favor does not mean it did not happen.
So what is his punishment? He is rewarded for his misconduct, transferred at taxpayers' expense to Florida, where has repeatedly stated he wanted to live and retire, with no state tax, maintaining his hefty $106,000-plus salary, to a non-management, non-supervisory position, tailor-made for him, with decreased responsibilities.
I find nothing fair about this. It is apparent to me that the Department of Veterans Affairs condones misbehavior and illegal actions for persons in high authority and solves personnel problems by merely transferring perpetrators to another facility at government expense.
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I find VA's response to this matter totally unacceptable and firmly believe they should be held accountable for their actions. To my knowledge, no VA officials have contacted us, inquired about any of the victims' welfare except for one, or provided any assistance in coping with the damage we experienced.
A system should be established to assist victims of sexual harassment and/or mistreatment by VA managers. This entire scenario certainly does not exemplify zero tolerance for sexual harassment, Secretary Brown's mandated policy.
A settlement agreement was reached with VA officials and Calhoun. The fact that the VA reportedly has no authority to change this settlement is a travesty, and I vehemently question the legality of such a negotiated settlement.
In my estimation, removal from Director status is not punishment when he saves salary, which is what his retirement is based on, the high 3 years. Has the VA considered those other employees that Calhoun had removed or demoted from their position, or those who found it necessary to retire early because of the intolerable working conditions under his directorship? Where is the justice for those persons? What about those employees that were promoted or received special favors as reward for complicity?
SES officials should not be protected against appropriate disciplinary actions. As such, it is in their realm of responsibility to lead by example and not use their position or power to emotionally bully and sexually harass subordinates.
The VA must apply the same standards and treatment to Directors and top management as it does to lower grade employees. The VA could truly learn from the Department of Defense.
These past 2 1/2 years have been a continuous nightmare with no apparent resolution for me, and I look forward to the day it is all behind me, though I seriously wonder if it will ever happen.
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Thank you for your concern and for this opportunity to speak with you. If I am able to help just one person from going through an ordeal such as what I experienced, that will give me a great deal of pleasure.
[The prepared statement of Ms. Caruana appears on p. 164.]
Mr. EVERETT. Thank you very much. Ms. Judy Dawkins.
STATEMENT OF JUDY DAWKINS, DEPARTMENT OF VETERANS AFFAIRS EMPLOYEE
Ms. DAWKINS. Hi. From the time I began working for Mr. Jerome Calhoun— —
Mr. EVERETT. Ms. Dawkins, will you please pull the mic up close?
Ms. DAWKINS. I thought I spoke rather loudly, but I am sorry.
From the time I began working for Mr. Jerome Calhoun in September 1995 through May 1996, I was subjected to verbal abuse, profanity, outbursts of temper, and his fury and his wrath. I never said anything to him about his profanity because I was afraid of him. There were almost daily incidents of his cursing, yelling, and screaming at me or other medical center employees.
Even when I was not the one to whom he was angry with, it was depressing and discouraging to hear these conversations. His actions and his words were so brutal and heartless with employees that a destructive and harmful atmosphere existed.
At first I tried to ignore the conversations. However, I was unable to do this when his abusive behavior began in the morning and continued throughout the day. Each time he used profanity toward me and threatened to fire me, it became increasingly demoralizing for me to work under those conditions.
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My work performance was greatly affected by Mr. Calhoun's moves and actions. He set the tone for the office and for the entire medical center every day, which was unusually unsatisfactory, with harmful and injurious results to my health and well-being, to the health and well-being of other employees, and I believe that the atmosphere that existed in the Fayetteville VA Medical Center was harmful to our patients.
In all the years I have worked for the Federal Government at Fort Bragg and Fayetteville VA Medical Center, I have never been spoken to or treated in the manner in which Mr. Calhoun treated me. He created a very hostile work environment. He demoralized me to the point that he broke my spirit.
I went to work around 7:30 a.m. and continued until 5:30 p.m. and sometimes much later without even a break for lunch. I became exhausted, weary, and began experiencing physical problems, and then realized that I was becoming depressed. I had no energy at all, began to decline social invitations and other activities in which I had always participated. I experienced anxiety, sleeplessness and loss of appetite.
For the first time in my life I was scared. I was scared all of the time. It affected every area of my life. I never knew when Mr. Calhoun was going to erupt and if I was going to be the target of his explosion. It was and has been the most frightening experience of my life because I have led and lived a very good life.
On May 3, 1996, I told my husband because he kept asking me what was wrong with me. I finally realized that I could not handle the situation at work anymore, and that I did need help.
I did receive assistance from VISN 6 in Durham staff members when my husband contacted Dr. Gross personally regarding my condition and the circumstances leading to my physical and emotional problems. However, I have never received any support or backing from VHA headquarters.
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I believe that Mr. Calhoun received a special deal, as our Fayetteville paper said, when he was reassigned to the Bay Pines VA Medical Center in January 1997. Only his requests were taken into consideration.
No one from headquarters has ever contacted me to inquire or determine to see if I needed anything, any support or any assistance.
I was a victim. I never did anything to deserve the treatment that I received. My emotional stress and physical problems and those of other employees have never been addressed by the top management within the VA. It appears that they did not care about what happened to me or any of the other employees. They were only concerned with assisting Mr. Calhoun.
During the period that I worked for Mr. Calhoun, I became tense and nervous because I was so afraid of his temper and threats. I had personally seen four letters of proposed removal, two for service chiefs and two for assistant service chiefs, come across my desk. I had witnessed numerous abusive conversations and mismanagement actions by Mr. Calhoun. Therefore, I was afraid he would fire me, embarrass me, and humiliate me, especially since all I was was a secretary.
His abusive treatment was very demeaning to me as a human being, very disrespectful to me as a lady, and very painful for me to endure.
Mr. Calhoun also made inappropriate remarks about part of my anatomy. I chose not to include them here. However, details can be provided.
I have attached to my statement an outline of events giving specific dates and times of the treatment I received from Mr. Calhoun. In addition to what I have given you that will be part of the permanent record, I have personal knowledge of numerous mismanagement practices by Mr. Jerome Calhoun. I chose not to include these handwritten notes to outline the specific dates of his misuse of his position as Director and his total disregard for VA regulations and guidelines. I will furnish this information to the Office of the Inspector General if I need to.
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In closing I do want to say something positive about the VA. I have worked for this agency for over 21 years. The new VISN concept is going to be excellent for our veteran patients and our employees, too. Medical centers will now begin to work as teams and not individually. The benefits should be outstanding.
There should be more accountability of Directors since they will be working together as a team, and their authority will not be autonomous as in the past.
I want to say publicly that I appreciate the assistance which I received from Dr. Gross, Dr. Alexander, Ms. Ann Patterson, and Ms. Loretta Sauls. Their support was and continues to be outstanding for me, and this is not said to make them feel better. It is what I truly believe.
One of the best things to happen to the Fayetteville Medical Center—and Fayetteville is my home; I have lived there 40 years—is being under the leadership of the VISN 6 staff in Durham, NC. I believe that by each medical center working together, and especially at Fayetteville, we can care for our patients, which truly is what we are all about.
However, as employees, we must demonstrate our willingness to go beyond that which is necessary and support our patients. Without veterans, I do not even have a job, and a lot of the people in this room do not have a job either. We need them, and they need us, and I know that they are what the VA stands for.
I want that medical center on Ramsey Street to be there when I am dead and gone and buried across the street. I want my grandchildren and my great grandchildren to say, ''Mima worked there.'' I want it to continue as a medical center to serve the veterans of Eastern North Carolina.
We do care. We are good people there. We are not stupid hicks, as we were referred to. We might not have had all of the top rated things that Durham has because of Duke University Medical Center, but we care about those people because that is what we are all about and the VA is all about.
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Thank you.
[The prepared statement of Ms. Dawkins, with attachment, appears on p. 170.]
Mr. EVERETT. Thank you, Ms. Dawkins.
Ms. Barefoot.
STATEMENT OF LOVIA B. BAREFOOT, DEPARTMENT OF VETERANS AFFAIRS EMPLOYEE (RET.)
Ms. BAREFOOT. To all committee members, I appreciate this opportunity. Can you hear me?
Mr. EVERETT. If you could move the mic a little closer or we will set up two mics.
Ms. BAREFOOT. I do not know if I need two, but I appreciate this opportunity to address the atrocities to which I was subjected while secretary to Jerome Calhoun from April of 1994— —
Mr. EVERETT. Ms. Barefoot, excuse me. I believe you are going to have to move that mic just a little bit closer if you can.
Ms. BAREFOOT. Which one or does it matter?
Mr. EVERETT. The staff, give her some assistance there.
Ms. BAREFOOT. This one? This one. Is that better?
Mr. EVERETT. Thank you.
Ms. BAREFOOT. I appreciate the opportunity to address the atrocities to which I was subjected while secretary to Jerome Calhoun from April 1994 through June 1994.
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Very soon after his arrival to the Fayetteville VA Medical Center it was quite apparent that he intended to make changes not only in the management of the medical center, but changes in personnel as well. Within the first week of his arrival, he advised me that I had 90 days to prove myself. I thought that a rather strange remark. I had 23 years of federal service in and had held similar positions at Pope Air Force Base, NC, for 6 years prior to going back to the VA.
During the transition briefing, I was assigned to take minutes. On the morning of the briefing, James Crocker, then Chief, Fiscal Service, offered to go and bring Mr. Billy Hightower, Transition Coordinator, from the motel to the hospital. Rather than accepting Mr. Crocker's officer, Mr. Calhoun accused Mr. Crocker of challenging his authority as the new Director.
After Mr. Hightower had presented the briefing, Jerome Calhoun stood before the group composed of service chiefs and some key staff personnel. He walked to the front of the semi-circle in which we were seated. He immediately held his arms away from his sides, slowly walked a 360 degree turn, fully exposing his wrists and hands.
When he had completed his turn, he rubbed the tops of his hands and referenced the color of his skin.
Mr. Calhoun's management style, if you could call it that, was one of threats, intimidation, and constant filthy language. I am not comfortable using these words, but the ''F'' word was frequently used in my presence, as well as other curse words.
In those 3 months, and which in some ways seemed like an eternity, he constantly inferred that my work was substandard, was not what he wanted, and I had better clean up my act or I would be out of a job. This was done in the form of yellow sticky notes, verbally, and written in the margin of finished products, such as, ''How much longer do I have to endure this?''
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I found these rejections of my work and threats for dismissal totally foreign to anything I had ever endured before in my federal career. I have always taken pride in my work, tried to do my best for my supervisors, and was recognized for this by receiving only highly satisfactory and outstanding appraisals and incentive and suggestion awards. Isn't it interesting to note that my performance appraisal in March 31, 1994, just prior to Jerome Calhoun's arrival, was highly satisfactory.
I soon began to live in such fear of being reprimanded and threatened, both actions never having been necessary by prior supervisors, that my fears did affect my performance. I felt I had no one to turn to. Who would believe my word against that of a medical center Director? I was a small fish in a very large pond.
I am the type of administrative employee who likes to organize her next day's work prior to leaving the office. On this particular afternoon, it was around five, and he called me into his office and gave me explicit instructions to call the regional office in Winston-Salem about some matter.
I went to the office, made a note on the calendar, said my ''good nights'' and went home. The next morning as soon as I walked in, he yelled at me to come in his office that very instant. He exhibited so much anger that I was terrified and yet had absolutely no idea what I had done wrong.
He began to yell at me for my insubordination and not taking my job seriously enough. I lived with threats the entire 3 months I worked for him, but he used his authority inappropriately. He had no need to scream at me as I have no hearing deficit, but I asked him what he was talking about. He responded he expected me to take care of the regional office matter at that moment and not wait until the next day. When I explained the late hour of his assignment, after office hours, his only response was something like, ''Oh, was it that late?'' Never once did he apologize.
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After he told me I appeared to not take my job seriously, I began to cry. He then asked me to step over beside his desk, and he opened one of the drawers on the left side. Inside that drawer was a large box of beige colored tissues. He told me they reminded him of me, soft and beige, and that whenever he upset me to the point of tears just to feel free to get a tissue from his desk, as they had been bought especially with me in mind.
In May of 1994, the medical center Director was visited by Mr. Hershel Gober, Deputy Secretary to Jesse Brown. Early in the day, prior to the reception for Mr. Gober and unknown to Jerome Calhoun, Tomi MacDonough, a vet center leader, had a moment to chat with Mr. Gober about some concerns he had for the vet center. Later in the reception Mr. Gober asked Mr. Calhoun about these issues and apparently took Mr. Calhoun totally by surprise.
After Mr. Gober had departed the station, while seated at my desk, Mr. Calhoun came bursting through the main office doorway past my desk, jerking his tie off, cursing and screaming, ''That G.D. M.F. S.O.B. MacDonough'' was going to hear from him.
Tom Arnold, then Associate Director, was right on his heels trying to calm him down. Mr. Calhoun slammed his office door. I just stared in disbelief.
In a short while, he came out of his office, stepped up to my desk, and announced that he was going jogging to de-stress. No, he did not record his absence or other like absences. Further, I never observed him using his office computer during my 3-month tenure there.
Soon after his arrival, Jerome Calhoun called me into his office to take dictation in response to a sexual harassment matter which had followed him from one of the New York medical centers. All of the criteria listed on the document, I think, were listed in an A, B, C type of format, and each was emphatically denied by Mr. Calhoun.
When I had taken the dictation, I was told to typewrite the response, make no record of the female's name, and keep no copy of that document. I was then told to give the document back to him for mailing.
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As time went by, I could see a change in me from a woman who used to come to work thankful that she had reached the grade of GS–8, a grade at which she would one day retire; a woman who had excelled in facets of her personal life as wife and mother; a woman who had successfully worked with medical professionals, Air Force colonels, congressional liaisons, and foreign military officers for more than 20 years; to a woman who had become a timid, nervous wreck as a result of the harassing, hostile and intimidating work environment created by Mr. Calhoun; a woman who began to dread reporting to work because that office had become a living hell; a woman who suffered loss of appetite, insomnia, sought medical treatment for stress related chest pain and shortness of breath, and would mentally replay the day's events.
After admitting to myself that all those years of devoted work for the Federal Government was not something I could just throw away, I requested an option to transfer to another job, which meant an obvious downgrade as I was the highest ranking secretary in the medical center.
The decision was not made on a whim. It was a matter of survival: mine. I had often discussed the work environment with my husband and daughters, and each supported me in my decision to transfer.
When I approached Mr. Calhoun requesting a transfer, he acted surprised. He agreed to my request for a transfer only if I signed an agreement to accept the position at a lower grade and pay level, and that I was not coerced in doing so. This resulted in a pay reduction of greater than $3,000 per year.
I ask you members of this committee: do not the above statements qualify as coercion, intimidation, harassment, hostile working environment, and abuse of power?
Incidentally, I was still within my 90-day period as this had hung over my head like a dark cloud. I should never have had to endure the pressure of sitting on the fence with my career at stake.
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Members of this committee, I implore you to thoroughly investigate such atrocities that these other witnesses and I endured at the Fayetteville VAMC. Investigate from the top level of the Department of Affairs down.
Investigate why the Jerome Calhouns in this administration are punished by merely transferring them from one facility to another. Mr. Calhoun was not punished. He was removed from SES status, but he is still drawing a $106,000-plus annual salary and living in the State of Florida, where he had always intended to retire.
Did the Department of Veterans Affairs officials really punish him or merely slap the faces of his subordinates? I would like to see this problem rectified and you, members of this committee, are the ones to do it.
Thank you.
[The prepared statement of Ms. Barefoot appears on p. 178.]
Mr. EVERETT. Thank you, Ms. Barefoot.
Ms. Moore-Russell.
STATEMENT OF DORIS A. MOORE-RUSSELL, M.S.W., DEPARTMENT OF VETERANS AFFAIRS EMPLOYEE
Ms. MOORE-RUSSELL. I am a service connected veteran, and I receive all of my care at the VA Medical Center. I am also a psychiatric social worker that specializes in PTSD, combat and sexual assault PTSD, and other mental health issues.
I am alleging that I was subjected to undue stress in a hostile environment because I did not welcome any sexual advances from the previous Director, Mr. Jerome Calhoun. I was forced to leave my position for 1 year, taking leave without pay, from August 1, 1995, to July 31, 1996. I experienced malicious retaliation as a direct result of Mr. Calhoun's actions. He used insulting, abusive and intimidating language toward me in the presence of others. I was consistently harassed and subjected to racial and gender remarks.
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I met Mr. Calhoun for the first time on May 9 at 10:15. I met with him to discuss the Women Veterans Program, which was my collateral duty. Mr. Calhoun, at that time, seemed very supportive. I thought I had developed a rapport with him. My next personnel contact with him was on June 8th of 1994. I was admitted to the VA Hospital because I was having a lot of medical difficulties.
Mr. Calhoun called me at home. He was at an EEOC conference in Orlando, FL. He wanted to see how I was doing. I felt that was odd because I had never had my supervisors call me at home, let alone the Director.
I had served on several committees that Mr. Calhoun chaired or visited and witnessed him making demeaning remarks to many employees. I began to feel uncomfortable with his abusive behavior.
I was requested on July 28 to come to his office. He wanted to see how things were going. During that meeting I told him I wanted to apply for the SWALT Program (Social Work Administration Leadership Training Program). He said, ''Consider it done.''
I am not going to read all of my testimony because you do have a copy. I'm going to skip around and try to finish this up within the allotted time.
There were several times when I met with Mr. Calhoun and we discussed a lot of things that concerned me, the Women Veterans Program, the overwhelming amount of responsibility that I was completing due to my other duties.
When an announcement came in for the Regional Veterans Women Coordinator position, I met with Mr. Calhoun that afternoon about 4 p.m. to tell him that I wanted to apply for that position. During our conversation, I informed him that I was given the Women Veterans Coordinator position as a reprisal from the previous administration. He told me he was aware of the situation, and he specifically added to me, ''Doris, you were 'F'ed' by the previous administration. At least if I would have 'F'ed' you, you would have got something out of it.''
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I was very shocked to hear Mr. Calhoun say that. I was very shocked and agitated. I didn't know who I could turn to in order to discuss what Mr. Calhoun said. I felt no one would believe me.
During this period of Mr. Calhoun's tenure, there was a lot of people that were afraid of him. He had a lot of people that were his supporters. I began to question myself. The things that he had accommodated me with, for example, he had given me in one of our meetings a cabinet from his executive suite. He also gave me as the Women Veterans Coordinator and two of our other Women Veterans Advisory Team members a trip to San Diego, CA, to attend a Women Veterans Committee conference that was not sponsored by the VA.
Previously he had written me several appreciation memos and letters of recommendation. I have a copy of all the memos and letters of recommendation. I felt I had his support and backing. I began to feel hurt and confused.
During the second week of December 1994, the medical center gave a Christmas party at the Pope Air Force Base Officers Club. I arrived late. I was greeted by Mr. Calhoun. He gave me a hug. His hand slid down to my chest, and he squeezed my breast with both of his hands. I pulled back in shock.
He had a smirk on his face and said, ''Merry Christmas, Doris.'' I wanted to slap his face, but instead I mumbled something. I rushed to the bathroom. I felt sick, and the rest of my night was ruined. I kept wondering who could I tell. Who would believe me?
The next morning I did tell the Assistant Chief of Social Work, Mr. Canteen. He asked me what I was going to do, I told him I did not know. Later that day Mr. Calhoun requested me to meet with him. I was hesitant. I was frightened because I was afraid that Mr. Canteen told Mr. Calhoun what I had said.
But instead he did not talk about the incident at the Christmas party. He spoke about my health issues, job stress, and my filing for workmen's compensation. You see, I filed for workmen's compensation because I was having too many medical difficulties. I could not afford to pay for my treatment on the outside.
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He became very angry, and stated, ''You shouldn't have said what I said about Mr. Arnold. That was between you and I.'' He was very belittling. He asked me to leave his office.
My worst fear happened. I received a memo from Mr. Calhoun on January 19 detailing me from my position as the Coordinator of the Aftercare/Outpatient Program, effective the 5th. I was confused and upset. I could not understand why he wanted to take my job. I tried to meet with him. He was demeaning, and what he was saying did not make sense.
He kept saying, ''If you would have been nice, Doris, this wouldn't have happened to you,'' or something to that effect, ''and now,'' he said, ''I don't give a damn about you.''
I was very baffled and angry. I filed a grievance against Mr. Calhoun on the 2nd of February 1995. I wanted to know specifically why he was detailing me.
Mr. Calhoun met with me a week later with my supervisor, Ms. King, and the Chief of Personnel. I asked the union president to attend with me, Mr. Paul Reid. That was a very heated meeting. During that meeting Mr. Calhoun gave me my job back.
However, I was continually harassed. I had to sign in every morning on the computer. I was being harassed also by my supervisor because she was a lieutenant of Mr. Calhoun.
I wanted to know why I was being treated that way. I asked Mr. Calhoun if I could meet with him again. He told me that if it was of a personal nature, he would have to have a witness, and if it was about work, I needed to see my supervisor.
Finally he did allow me to come in and talk with him. He jumped on me about being late. He called me personally at 8 a.m. to set up an appointment. I was not in my office. I called him back at 8:01.
I told him I wanted to make peace. He did not let me finish my statement. He asked me, ''Well, what else?'' I discussed having to pull weekend calls without compensation, also signing in on the E-mail every morning, and also my supervisor briefed and assigned duties to my supervisees without discussing the issues with me.
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He acknowledged that all of the above concerns were valid. He said he would speak to my supervisor. He asked me did I understand why he had a witness in his office, the EEO manager, Eugene Paul. I answered no. He stated, ''Because the last time we talked, you misrepresented what I said to you about Mr. Arnold to worker's compensation as if I supported you.''
I told him I did not mind Mr. Paul being there.
When I met with my supervisor that afternoon at 1 o'clock, I told her, ''I no longer had to sign in because I just spoke with Mr. Calhoun.'' I was assuming that my supervisor had met with Mr. Calhoun. They typically meet at least three and four times daily.
She became upset and ran out of the office. She left me with Mr. Canteen, another supervisor. When she returned a second later; she brought the EEO manager, Mr. Eugene Paul. Mr. Canteen asked if he should leave. She nodded.
Mr. Paul proceeded to demean me. He stated, he could understand why I had to sign in. I informed him that the regulation read that you call in if you did not plan to come to work. He stated, ''That's your interpretation.'' I asked him what was his.
Mr. Paul became very upset and ran out of Ms. King's office. He returned a few seconds later with Mr. Calhoun. I thought this was strange because all of this happened within a matter of seconds. I felt as if the three of them were conniving to further cause me harm.
Mr. Calhoun came in. He stood in front of the door. Eugene Paul also stood in front of the door. My supervisor was sitting behind her desk. I was sitting opposite of her. Mr. Calhoun kept screaming and pointing his finger in my face. He used insensitive and demeaning terms. I lost track of what he was saying. I was trying to keep my emotions intact.
I tried to say something, and he told me, ''Shut the fuck up.'' I became speechless. I just felt so hurt, trapped and I just could not understand why they were harassing me.
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Mr. EVERETT. Ms. Moore-Russell, if you need a moment, please take one.
Ms. MOORE-RUSSELL. I could not understand why this was happening. I looked at my supervisor for support. She did not say anything. I felt trapped and threaten. Mr. Calhoun and Mr. Paul were blocking the doorway. So I could not leave. I felt intimidated and helpless. Finally Mr. Calhoun realized that he had lost control with me. He and Mr. Paul left.
I asked my supervisor Ms. King could I leave her office. She nodded. A staff social worker, Dick Droney, asked me, ''What's wrong?'' He added, ''You seem upset,'' ''Who was Mr. Calhoun screaming at?'' He further stated, ''I heard him say, 'Shut the fuck up.''' I told Mr. Droney Mr. Calhoun was yelling at me.
Later that afternoon I had three patients scheduled in my clinic. I was too upset, tearful and shaky to see my patients. Did Mr. Calhoun's, Mr. Paul's or Ms. King's behaviors exhibit concern for patient care at the VA?
I had to ask my staff to see my patients. I left and went to see my psychiatrist, Dr. Cusi.
Mr. Calhoun had made explicit and implicit sexual comments to me on several occasions. He created a hostile working environment for me because I would not meet his conditions. By touching my breast, I feel that he has sexually assaulted me, and my rejection of his sexual advances was used to ridicule and belittle me. He has ruined my life. I had to leave my job for 1 year without pay. I was denied worker's compensation. I was also denied a medical retirement. I applied for medical retirement through OPM. I was denied the above options due to deceptive information provided by the Director and my supervisor, Ms. King.
I received no support from anyone at that particular time because I was the first one that was subject to his harassment. On behalf of my other African American co-workers and supervisors at the VA Medical Center, we want to let the committee know that we were informed that we could not file an EEO complaint against Mr. Calhoun because he is of the same race. We were told that there was nothing that we could do, and they all want you to know that they complained initially about his abusive behavior and nothing was done. No one would listen.
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I also wrote Mr. Calhoun's supervisor, Dr. Moravec, as he asked me. I sent the letter to Mississippi. Their written response to me was neither supportive or encouraging.
I also called the Department of Veterans Affairs, Washington, during the time I was on leave without pay to inquire about assistance. However, I got the run-around. Every telephone number that I called referred me to another office. All the numbers called were recorded on my telephone bill. Exact dates can be produced. The VA furlough went into effect allowing me no other attempts.
So now I implore you to continue to look into this situation because it is definitely unfair, and no one should be treated the way myself treated and the other ladies of this panel were treated.
Thank you.
[The prepared statement of Ms. Moore-Russel appears on p. 183.]
Mr. EVERETT. Ms. Moore-Russell, thank you very much for your testimony.
I thank all of you ladies. We unfortunately have a vote on. Excuse me one moment.
Hopefully it will not be long, although it is a procedural type of vote that could take a little time. We hope that will not happen. I would ask the panel to remain because we will have questions when we get back, and at this time I will recess until we— —
Mr. CLYBURN. Mr. Chairman.
Mr. EVERETT. Yes.
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Mr. CLYBURN. Just before we adjourn, I neglected when I made my statement to ask unanimous consent for a statement from Eva Clayton, who represents this area here in this body. She has a statement she would like entered into the record, and I ask unanimous consent that this be entered into the record. As I speak, Eva Clayton is entering this room.
Mr. EVERETT. Without objection, our colleague Ms. Clayton's statement will be included in the record, and we welcome her to these hearings.
[The statement of Hon. Eva M. Clayton appears on p. 188.]
Mr. EVERETT. We will recess though for the vote, and we will be back here in just a few minutes.
[Recess.]
Mr. EVERETT. We will reconvene the hearing, and I apologize for the delay. I can tell you that the floor schedule at best today is unpredictable, but we will try to move as quickly as we can.
I am going to enter into a round of questioning now, and we are going to ask all members to adhere to the 5-minute rule. If there is need for a second round, we would be more than happy to do that.
I will begin the questioning, and I would like for each of you on the panel to respond to this. Would each member of the panel respond to this question?
Do you have trust and confidence in the EEO process at Fayetteville? Why or why not?
And if you could, we have your written testimony. Please keep your responses as brief as possible. We will start with Ms. Force.
Ms. FORCE. Thank you.
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No, I cannot say that I have confidence in the EEO process at Fayetteville. I made my initial complaint to the EEO not manager, but the EEO counselor in July, the end of July.
In December we still had not received any kind of response. At that time I did not feel as though I could go to the Fayetteville VA. So I had given instructions that my attorney would be handling my case.
In December she sent another letter that I have a copy of here to the Secretary of the VA and the Associate Director of EEO, saying that we seem to be having problems with lost paper work, because as I understand, mine was not the only paper work that was lost, and to my knowledge, there has been no answer to that letter either.
So my confidence, I was not there during all of the meetings that they have had with the EEO investigators. I was already gone, but I had no confidence in the EEO manager because the day that I requested the meeting with Jerome Calhoun to ask why I was being removed from my position since I had never been given any kind of counseling or nothing had been said to me about poor performance, they were in the process of processing our award for achieving our maximum goal for the first time. We were one of 15 facilities recognized for consistently increasing collections by double digits.
Mr. EVERETT. Ms. Force, excuse me, but rather than go into detail, if you would just make your answer brief. I am sorry. I apologize for not having the time, but we simply do not have it.
Ms. FORCE. The EEO manager was in that meeting, and never at any time made any comments in my defense. He was very obviously there for Jerome Calhoun and not there for me.
Mr. EVERETT. Just briefly, did your program receive a national ranking from the MCCR Program in terms of his collection?
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Ms. FORCE. Yes, sir.
Mr. EVERETT. And it was one of the top ten in the Nation?
Ms. FORCE. Well, no, it was not one of the top ten in the Nation. We had consistently increased our collections by double digits.
Mr. EVERETT. I remember your testimony. Thank you very much. Ms. Caruana.
Ms. CARUANA. I have no confidence with the EEO process at Fayetteville. I believe the manager to be biased. Mr. Calhoun was in his office for hours at a time during proceedings. I believe that he knew what the witnesses said before he even got into the actual investigation, so that he was able to respond to any questions he may be asked.
During my investigation, the EEO investigator told me off the record that she had never heard stories like those of my witnesses. She said she was appalled, and I really thought I was going to win my case.
He made a statement. He called together all black supervisors and managers and said, ''We all have to stick together,'' and more or less said, ''If you think I'm kidding, you saw what I did to my secretary that I spent 10 years with. She got to be too white and I had to remove her, and if you don't think I'll do it to you, you're wrong.''
I have three black witnesses that testified that to this fact, and the results of my EEO: she did not find in my favor. She found that he treated everybody the same way. Therefore, I did not have a case.
Mr. EVERETT. In other words, he was abusive of everybody. So you do not have a case.
Ms. CARUANA. That is right. So you can abuse anybody, and because you treat everybody this way, it is fine. So why have a system?
Mr. EVERETT. Thank you very much. Ms. Moore-Russell.
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Ms. MOORE-RUSSELL. Mr. Chairman and committee, I do not have any faith in the EEO process. The EEO manager from Fayetteville VA Medical Center, Eugene Paul, was in the room when Mr. Calhoun proceeded to demean me and belittle me
Also it has been noted by many of my African American colleagues, that as soon as a person filed an EEO complaint, my supervisor who, Ms. King, is informed of it.
I filed an EEO complaint on September 6, 1996, after I returned to work. Since then that complaint has been said to be lost. They have no recollection of it.
Now in order to file a complaint, you have to have a counselor. In other words, where is the EEO counselor's copy of my complaint.
Mr. EVERETT. You were not advised you needed one?
Ms. MOORE-RUSSELL. No, sir.
Mr. EVERETT. Ms. Barefoot.
Thank you, Ms. Moore-Russell.
Ms. BAREFOOT. I am afraid I have to reflect the same statements in that I have no confidence in the EEO in Fayetteville. Mr. Calhoun, as I observed, to be on a power trip. So what was the point? Here I am one secretary against a medical center Director. There would be no need to do it. It would not go anywhere. Those were my feelings.
Mr. EVERETT. Thank you. Ms. Dawkins.
Ms. DAWKINS. I have never filed a grievance or a complaint.
Mr. EVERETT. I am sorry. Would you pull that mic up? I apologize, but if you would pull it closer.
Ms. DAWKINS. Thank you.
I have never filed a grievance or complaint in all the years of federal employment, and at the Fayetteville VA I definitely would not have. I honestly believe, well, I honestly know for a fact that after working hours, because I had to work so late, that the investigators came to the office. They did not bother to close the door. They did not care that I heard them. They would laugh and discuss the cases with Mr. Calhoun. They would laugh about the complainants behind their back.
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I really wanted to go and tell the people, ''You poor saps. You're filing all these things. Nothing's going to happen,'' but I could not.
I never spoke about Mr. Jerome Calhoun until after I was placed on medical leave by my doctor. I was loyal to him and to his position until my doctor took me out and convinced me to speak up. It took a husband and a doctor to do it.
I wanted to leave. I honestly believe in the VA system that the EEO managers should not be at the local stations and the Director be their supervisor. I find that a big conflict of interest because how are you going to go against someone that is writing your appraisal at the end of the year, determines whether you get another promotion? I did not even go against him, and I am normally a very aggressive, normal woman.
But his intimidation and his grip was so fierce that I found myself scared to death and did nothing, and I am ashamed of what I became. I am literally ashamed of the woman that I became after working with him for 8 months.
My children are not proud of me. I would not stand up. Dr. Gross was the only one. I would not do anything because I said, ''What's the use? They're going to laugh. They're going to say, 'These stupid women here.'''
He laughed at everybody there. I can assure you that if I knew where Mr. Calhoun was right now, somewhere in Florida I assume, that he is looking at this on CNN and laughing.
''You can say all you want, you hillbillies and you hicks.'' That is what he called us. ''I've still got mine.'' He does not care, and I think until the VA realizes that EEO managers cannot come under the supervision of a Medical Center Director or an Associate Director or a Chief of Staff, who have the right to write their appraisals; until they move it out of the local hospital, then I do not think the EEO system is worth anything.
Mr. EVERETT. Thank you very much.
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I will now turn to our ranking member, Mr. Clyburn for any questions he may have.
Mr. CLYBURN. Thank you, Mr. Chairman.
I suspect that most of my questions, of course, will probably be reserved for managers here. I am a bit disturbed though that all of you seem not to have any confidence in the EEO process.
It seems to me, unless something has changed, that there was a very simple procedure to move outside of the in-house EEO process to a process outside of the agency. None of you made the attempt to go outside of the internal process to the external process?
Yes, ma'am.
Ms. DAWKINS. When I was placed on medical leave, the only vehicle I could determine that I could document what had happened to me was to file OWCP. It was the only place that I could think of in the government that I could— —
Mr. CLYBURN. Can you tell me what the OWCP is?
Ms. DAWKINS. OWCP, Occupational Workman's Compensation.
I filed it there and put all of the attachments, my chronological attachment of what he had done only to me, not other things I had seen him doing because to me a grievance in the EEO was worthless.
Mr. CLYBURN. Well, I understand that, but we only have 5 minutes here. Nobody else attempted to go outside the process?
Ms. MOORE-RUSSELL. Okay. Mr. Clyburn, I was informed that as being an African American and Mr. Calhoun an African American, I could not file an EEO complaint, but, yes, I did make an attempt to go outside for help. I wrote his supervisor a letter, Dr. Moravec. He was not helpful.
Mr. CLYBURN. For sexual harassment?
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Ms. MOORE-RUSSELL. For sexual harassment or anything else.
Mr. CLYBURN. Who informed you of that?
Ms. MOORE-RUSSELL. We were informed by some of the counselors, and I do not know all of the names, but I was informed by some of the counselors and the EEO manager, Mr. Paul.
I did go outside of the system. I wrote a letter to Mr. Calhoun's supervisor, Dr. Moravec at the regional office.
Mr. CLYBURN. That is still within the system. Outside of the system, outside of the agency to the U.S. Equal Employment Opportunity Commission, and there is a process now by which federal employees can go to the U.S. Equal Employment Opportunity Commission, but none of you made an attempt to do that?
Ms. CARUANA. I do not think any of us knew about it.
Mr. CLYBURN. Well, I think that is why I want to talk to some management people because I do not understand why you would not know what the procedures are to file these kinds of complaints.
Ms. FORCE. I was instructed that you had to go through that process at the hospital, and if you did not get any results, then you could go to this outside process.
Mr. CLYBURN. Absolutely correct, and you all said you did not get any results. If you do not have faith in this process, you still have got to go through it.
You know, I can understand your feeling that someone who is being supervised by the perpetrator will not be forthcoming. I can understand that, but when you go through that process and you are not satisfied with it, there is a step that takes you outside of the system, but you are telling me that none of you made any attempt to go outside of the system, outside of your agency, I should say. I am sorry.
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Ms. FORCE. I was instructed that you had to have 180 days, and it has not been 180 days since my attorney's letter went to Washington.
Mr. CLYBURN. The 180 days is from the infraction. You have to have 180 days from the time it happened to you, unless, as all of you testified, it is an ongoing process. If it is a continuing process, 180 days do not matter because your 180 days could be from the first time. It could be 180 hours from the last time it happened, and from what you all are telling me, this is a continuous thing.
Ms. CARUANA. I filed my EEO case, and I am waiting for a court date, which my attorney told me it will probably be around Christmas time. It seems like it takes forever and a day.
Mr. CLYBURN. I know of a case right now in the VA that is 11 years old. That is not unusual.
Ms. CARUANA. So I am just waiting for the next step.
Mr. CLYBURN. Right.
Ms. BAREFOOT. I would just like to say this. I have been retired now a little over 2 years, took an early out, but I think it is interesting that we spent all of those hours in sexual harassment training, but we have not had the proper EEO procedure training. I think that is something that should be looked into.
Mr. CLYBURN. You said you have not had that?
Ms. BAREFOOT. I do not recall attending it. I do not recall it being available to me, but we did spend a number of hours in sexual harassment training.
Ms. CARUANA. We have to attend 4-hour mandatory sexual harassment classes. It seems like we should not have to go to those. Every year we have to attend.
Mr. CLYBURN. Well, why shouldn't you have to go to them? I mean that is why they are there, so that you would know how to step outside of the process.
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Ms. CARUANA. Well, we have been sexually harassed, and the perpetrator got away with it. So why do we have to continue to go to these classes?
Mr. CLYBURN. Well, Ms. Caruana, I do not think anyone has gotten away with anything yet. We are all still around. He is still around. Just because someone was transferred from one station to another does not mean they have gotten away with anything yet.
I mean, how long has the Texaco case been going on? They may have thought they had gotten away, but they have suddenly found out they did not get away, and we can still remedy this. So just because it did not happen at the time you wanted it to happen does not mean he got away.
Maybe we will have another round of questions, but let me say this. My interest in these is really to find the facts. For instance, we are here to discuss sexual harassment, and at least two of you have got some real good, emotional cases for bad management, but there is a big difference between bad management and sexual harassment, and what we want to do is really differentiate between those two things.
Now, I can understand when people tell you that you have a problem, but it may not be a sexual harassment problem or may not be a discrimination problem. I came face to face with that very early in my career when a lady came to me, and I asked her. I said, ''Well, tell me. Are there any white employees in your section?''
She said, ''Yes, he treats us all like dogs.''
I said, ''Well, where is the discrimination?''
And there is a difference, and so just because it is bad and it is bad management really does not mean it is illegal discrimination because it has got to be based on race or gender or age or religion, and that is where we have the difference here.
So what we want to do in this committee is really zero in on exactly what the illegal behavior is, based upon what our Constitution and what our laws are. So I am really interested in trying to find out why you all did not see fit to go outside of the agency, and I really want to know the answer to that because that to me is what the real problem is here.
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Ms. MOORE-RUSSELL. Well, Mr. Clyburn, when I returned to work in September, I was told at that time that, yes, you can file an EEO complaint, and that is when I filed, on September 6, but I also obtained an attorney and once you obtain an attorney, you no longer take the active process of seeing your EEO complaint through. You turn that over to your attorney.
Mr. CLYBURN. So you do have an attorney?
Ms. MOORE-RUSSELL. Yes, sir.
Mr. CLYBURN. Who has filed paper work for you?
Ms. MOORE-RUSSELL. Yes, sir.
Mr. CLYBURN. So your process is ongoing?
Ms. MOORE-RUSSELL. According to her, when I met with her on Saturday before coming here. The EEO manager, Mr. Paul, at the VA hospital told her that they cannot find my complaint. This is what my attorney said they told her. That is what she told us on Saturday when we met with her, and this is the EEO that I filed. It is my copy. This is the copy that was given to them.
Mr. CLYBURN. And so the VA people told your attorney that they have lost the complaint?
Ms. MOORE-RUSSELL. That is correct, sir.
Mr. CLYBURN. That your attorney filed on your behalf?
Ms. MOORE-RUSSELL. That is correct, sir.
Mr. CLYBURN. Did somebody else say something was lost, too?
Ms. FORCE. Yes.
Mr. CLYBURN. So you filed a complaint by an attorney?
Ms. FORCE. Yes, sir.
Mr. CLYBURN. And it was lost?
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Ms. FORCE. Yes, sir.
Mr. CLYBURN. Mr. Chairman, I hope that person is on the witness list who lost all of these things.
Mr. EVERETT. Is the individual on the witness list or by name can you tell us who told your attorney?
Ms. MOORE-RUSSELL. Well, sir, the only thing I know is that Eugene Paul is our EEO manager. So any correspondence would come from his office with the endorsement of the Director. My attorney received a correspondence, and she probably could tell you exactly who she spoke with, but they do not discuss these issues with me anymore.
Ms. FORCE. Mine would have also gone through Mr. Paul.
Mr. CLYBURN. Yours went through Mr. Paul also?
Ms. FORCE. Yes, sir.
Mr. CLYBURN. And Mr. Paul is not on the witness list.
Mr. EVERETT. No, he is not. We can arrange that though.
Mr. CLYBURN. I think so. We need to.
Thank you.
Mr. EVERETT. Thank you, Mr. Clyburn.
Mr. Buyer.
Mr. BUYER. Thank you, Mr. Chairman.
I was being a very good listener to the Ranking Member, and I think in his experience he also uses the word ''illegal.'' I do not know if you are referring specifically to allegations in order to prove sexual harassment as a violation under the Civil Rights Act, but what I definitely have heard from testimony was some evidence of abusive behavior that should never be tolerated by any of the employees in the VA or anywhere.
The one thing that I am curious about is from some of the newspaper articles and some of your testimony, we have a Director here who was boastful about his relationship with Jesse Brown. I would like the witnesses to share with the committee about the relationship between the Director and the Secretary of the VA based on your knowledge.
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Go right down the row. Ms. Force.
Ms. FORCE. I did not have any direct knowledge of Mr. Calhoun's relationship with the Secretary of the VA. I have been told that he was a secretarial appointment, but I never had any direct knowledge of any kind of relationship.
Mr. BUYER. Ma'am?
Ms. CARUANA. I do not know of any relationship with Secretary Brown. I had heard stories that prior to his appointment at Fayetteville, Mr. Calhoun had gone to see Jesse Brown, and that is how he got that appointment, but it could just be a rumor. I do not know of any relationship that he had with him.
Mr. BUYER. All right. Ms. Moore.
Ms. MOORE-RUSSELL. I can say the same thing they are saying. I have no direct knowledge, just rumors.
Mr. BUYER. Ms. Barefoot.
Ms. BAREFOOT. I have been away from the VA now for a good while and from that front office since 1994. However, I think I recall seeing an autographed photo of Jesse Brown in Mr. Calhoun's office; is that correct?
Okay. I recall making the comment about Mr. Brown's photo in Mr. Calhoun's office, and to that Mr. Calhoun said, ''Jesse Brown and I are just like this,'' and held his two fingers together.
Mr. BUYER. Ms. Dawkins.
Ms. DAWKINS. I, too, recall the photos, and he did not do this to me, but he said, ''We're tight,'' and he also alluded to the fact that he was tight with Senator Helms, which shocked me because I thought, gosh, I voted for him every time. I might not ought to say that here, and I just could not believe that the Senator would support someone of Mr. Calhoun's character, and then I remembered that he had two sides to his character. He had the charm side, and he had the other side, and I just assumed that the Senator did not see it.
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But he had two photos, one with Senator Helms and then another photo with the Secretary, and they were on view, and he did allude to them at different times. He would say, ''They are my friends.''
And, you know, it is intimidating when you are a GS–8 secretary. You just sit there and think, well, nobody would believe anything I ever said.
I would like to clarify one thing that one of you two said. Okay? I will not take but a minute.
Mr. BUYER. All right.
Ms. DAWKINS. I am not that long-winded.
Mr. BUYER. I only have 5 minutes to ask my questions.
Ms. DAWKINS. Okay.
Mr. BUYER. If at the end of my questions you time it just right—
Ms. DAWKINS. I can butt in.
Mr. BUYER. I think members of Congress would cringe if there was any implication with regard to relationships for photos that we have had taken with individuals in the past. (Laughter.)
I do not want that to be a new standard.
One thing I would like you to do, Ms. Dawkins, for the record, you were very hesitant to speak publicly about remarks that were made about your body. If you would please provide that to the committee in writing, I would appreciate that.
One other question I have. Someone brought up something about the New York Medical Center and a sexual harassment complaint, and they had to do some typing on that. Which one was it?
Will you tell the committee, this New York Medical Center, this was also part of the VA system?
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Ms. BAREFOOT. Yes.
Mr. BUYER. And was there a pending sexual harassment complaint against— —
Ms. BAREFOOT. That is what is so difficult for me to remember exactly. I do not recall the person's name, but I do recall, as I stated, that it appeared to be like three items perhaps that this person from one of the two hospitals, and I do not recall which hospital, had against Mr. Calhoun's behavior, and all that he dictated to me were the responses to those, I think, three allegations.
But as I said, my instructions were to typewrite those, make no record of it, make no photocopy of it, give it back to him for mailing. So I am sorry I am not more helpful, but it is 3 years.
Mr. BUYER. That is all right.
Ms. Dawkins, you can time this. Go ahead.
Ms. DAWKINS. Okay. The orange button is already on.
I did not ever in any statement to the Office of the Inspector General when I was interviewed in my home while I was on medical leave, I never said Mr. Jerome Calhoun sexually harassed me. He made an inappropriate remark about my body.
I do not mind stating it if somebody wants to hear it, but I did not want to put it in writing now, and I do not mind putting it in writing. Now I never, never inferred; I have never filed; I have not contacted a lawyer because I do not believe that I was sexually harassed. However, I was abused as a human being. It was a hostile environment for our employees and patients.
Mr. BUYER. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you.
Mr. Buyer, for the record, the incident you referred to about prior sexual harassment, we have asked the VA for any documentation they can find on that, and, again, they seem to have no record of it, but they are looking for it. Mr. Snyder.
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Mr. SNYDER. Thank you, Mr. Chairman.
Ms. Force, if I understood your statement, you had said that one of the staff members had explained the settlement between Mr. Calhoun and the VA to you and that once you had that explanation you felt better about it.
Ms. FORCE. Yes.
Mr. SNYDER. Could you briefly state, please, how your attitude about the settlement changed after getting the explanation? What was it about the explanation that was new information for you?
Ms. FORCE. Well, I do not think that it was my attitude toward the settlement. Maybe I misrepresented what I was thinking. Just the fact that someone had taken the time to explain why they did the things that they did.
You know, the only thing I had read was the IG report and the statements that were in the Florida and Fayetteville newspapers, which from those accountings was presented as though he was rewarded with where he wanted to be in Florida.
Mr. SNYDER. And what is your understanding now that why what was done was done?
Ms. FORCE. It was explained to me that all of the attorneys that reviewed the sexual harassment case felt that it was a strong case, but when it went before Personnel, they were afraid; some of them were afraid that it was not strong enough because the Merit Promotion Standards Board had overturned another case from another agency that was even stronger than this case. They wanted Jerome Calhoun removed as Director, and they did not want to take a chance that he would just be given a suspension and go back as Director.
Mr. SNYDER. So the fear was— —
Ms. FORCE. Made this deal.
Mr. SNYDER. I have got you. So if they had run with your complaint and lost, he would have still been Director of the VA. Okay.
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Ms. FORCE. And everybody would have lost.
Mr. SNYDER. And, Ms. Caruana—am I saying your name right?
Ms. CARUANA. Caruana.
Mr. SNYDER. Caruana. Did I understand you in your testimony to say you had worked for Mr. Calhoun for several years, like 8 or 9 years? 9 years?
Ms. CARUANA. Nine years.
Mr. SNYDER. Was there a difference in his management style for those first 9 years versus the period of time that we are talking about now?
And I guess what I am getting to: should the VA have been on notice during that period of time that perhaps this is not a fellow that ought to be promoted up through the system?
Ms. CARUANA. I will explain this as best I can. When I worked for him in Buffalo, he was the Associate Director. He had a supervisor physically over him.
When he went to Fayetteville, he was the Director. He did not have anybody physically over him right there in the same building. His supervisor initially was in Jackson, MS.
So, therefore, he had all of this power. This was his kingdom now.
Mr. SNYDER. So were you surprised to see— —
Ms. CARUANA. Yes.
Mr. SNYDER (continuing). Mr. Calhoun acting the way he did in his new kingdom?
Ms. CARUANA. I mean, you know, he got a little crazy in Buffalo at times.
Mr. SNYDER. But nothing that you apparently were fearful of because you made the move to come to work for him.
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Ms. CARUANA. I did not see that side of him.
Mr. SNYDER. I understand.
Ms. CARUANA. And with the directorship, like I said, came this power and I think that that is what happened. It just went to his head.
Mr. SNYDER. Yes. Mr. Chairman, I think those are all of the questions that I have at this time.
Thank you.
Mr. EVERETT. Thank you, Mr. Snyder.
The chair recognizes our Ranking Member, Mr. Evans.
Mr. EVANS. Mr. Chairman, I apologize for my absence, but I really appreciate this panel's testimony. You have been on for quite some time, so I will try to keep it short.
Can each you describe to the members of the subcommittee what you knew about the complaint process, the EEO process, during the time that you were exposed to Mr. Calhoun's conduct?
And have you or any other employees that you know ever participated in sexual harassment sensitivity training within the VA?
Ms. FORCE. I do not know about sexual harassment sensitivity training. We have had 4 hours of mandatory sexual harassment training, and we were in the process of doing that when Jerome Calhoun was appointed to the Fayetteville VA.
I was so afraid of what would happen to me when I was actually at the Fayetteville VA that I never seriously considered going through the EEO process. I knew Eugene Paul was Mr. Calhoun's right-hand man. You could not do much with EEO unless you went through that office, even if you went to the counselors, as far as I knew. Everywhere I went people said, ''Don't even attempt it. You know, it's ridiculous. Don't even think about doing it.''
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So until I got away and realized that I was still a victim and the victimization was not going to end until I took some steps and I obtained an attorney also, and the attorney made the initiative to contact the EEO because I was still too fearful to do anything at that point in time.
Mr. EVANS. All right.
Ms. CARUANA. I was petrified to file an EEO complaint. I knew that once I did it, it was going to be over for me.
I went to see an attorney. We all have the same attorney, and I told her about what I was experiencing, and she told me that I should file an EEO complaint, but I waited a few months to do so because I just knew that he was going to go off and become a lunatic, and I was petrified.
I came down here to work with this man, and I did not know what he was going to do. So I went ahead and filed the complaint, and I am waiting to go on to the next step. They did not find in my favor, and we all have to attend 4 hours of mandatory sexual harassment training each year.
Mr. EVANS. All right. Ms. Moore.
Ms. MOORE-RUSSELL. First of all, I am part of management. I am a supervisory social worker, and, yes, I have had some training on the EEO process, but, no, I did not file an EEO complaint earlier because I was told that I could not because of our ethnicity.
But once I returned to the VA, yes, I did file an EEO complaint.
One of the things I have to tell you is that I was very embarrassed and ashamed by the fact that I had to undergo such an ordeal with Mr. Calhoun because I am a clinician, and like I said, I counsel people who have to go through sexual assault and sexual trauma, but for me to have to go through the same thing myself and being a manager that supervised others and deal with patients on a regular basis, it was very embarrassing, and so, no, I did not pursue it through the proper channels.
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Mr. EVANS. Can I ask you a direct question about what you do? You are a veteran, too; is that correct?
Ms. MOORE-RUSSELL. Yes, I am.
Mr. EVANS. So just what do you think is the likelihood if we have people such as Mr. Calhoun within the VA that women veterans returning from the Persian Gulf or from other duty assignments, coming back and making claims of sexual harassment while they were in the military; what kind of faith or credibility would they have within the VA if we have these kinds of problems among the people that are supposed to be treating veterans?
Ms. MOORE-RUSSELL. They will not have a lot of faith in the VA. At our Fayetteville VA in reference to sexual harassment, one of the things that happened since I have returned to work is that I am not allowed to assist with women veterans who are experiencing sexual trauma because I was told that my training as a sexual trauma therapist is outdated.
It does not make sense. I have a Master's degree in social work, but because of the hostile environment, I am not allowed to utilize my skills as a sexual trauma counselor. A lot of the women veterans that I had seen previously asked that I continue to counsel with them, but I am not allowed to do so.
Mr. EVANS. If your training is outdated, what year did you get your Master's in social work?
Ms. MOORE-RUSSELL. 1986.
Mr. EVANS. 1986. I am running out of time. I am sorry, but I would like to maybe explore that with you. It just seems to me that it would be very difficult for us to get women veterans to come into the VA if, in fact, the VA is having widespread problems with sexual harassment itself.
So I maybe could talk to you before you leave. I would like to.
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I would just like to ask the last two if they could make their comments brief about the previous question.
Mr. EVERETT. Absolutely.
Ms. BAREFOOT. I do not recall the EEO training of the proper procedure to do things, but I will have to say that I was absolutely scared to death of this man and fully aware that he was the Director. He made that perfectly clear.
Because of my retirement, my early retirement, I did speak with the same lawyer that these ladies have talked about, and she said because I was retired I had to go through this in a different manner, and she referred to it as an Office of Special Counsel, and to day nothing has been done for me.
Mr. EVANS. Okay. Ms. Dawkins.
Ms. DAWKINS. I have attended the mandatory sexual harassment training. In the last year I have worked in the Director's office, and there was not time to attend other training that is mandated, but I have never attended any EEO.
I am going to say something that you might not like to hear. I thought it was all for the counselors and supervisors, and I am a 26 year-plus federal employee, and I did not know that EEO training was offered to someone who was not a supervisor.
Mr. EVANS. Okay. Thank you.
I assume that none of you were contacted or consulted by the VA when they were deciding what action to take against Mr. Calhoun.
[Chorus of nays.]
Mr. EVANS. Okay. Thank you.
Thank you, Mr. Chairman, for your indulgence.
Mr. EVERETT. Thank you, Lane.
The chair now recognizes Mr. Bilirakis.
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Mr. BILIRAKIS. Thank you, Mr. Chairman.
Mr. Chairman, I want to truly commend you for giving the oath to these witnesses because, you know, some of these things that we have heard from them, they knew that they were under oath, and they are certainly all very responsible people with a great deal of experience and education, and I think it is even more impacting, their testimony, as a result of that.
And insofar as EEO is concerned, the process, Mr. Clyburn spent a lot of time on that. He obviously knows more about that process than any of us do, I think, and obviously more than any of the witnesses, and I just wonder. We are talking about what is it, the fox counseling the henhouse or whatever the proper term there is?
We make the laws, and maybe with Mr. Clyburn's help we can take a look at that area. Putting ourselves in the shoes of these witnesses, as well as others who are not here, they would be scared to death. I think even I would be scared to death to bring a complaint when I know darn well that my boss or bosses are part of the counseling system and that all of those counselors work conceivably for the person who they are complaining against.
So there is really something wrong there, and I think, Mr. Clyburn, you certainly would recognize that, and I think we ought to work on it.
Mr. EVERETT. Would the gentleman yield?
Mr. BILIRAKIS. By all means.
Mr. EVERETT. There is not only that situation of them counseling, as you put it, the fox counseling the henhouse. There is sworn testimony that they laughed and joked about this.
Mr. BILIRAKIS. Yes, that certainly is true, and again, under oath. That is sworn testimony.
Ms. Caruana, regarding the dream that the gentleman had and the question that it could be worth your while if you actually did sleep with him, did you tell the IG about that?
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Ms. CARUANA. Yes, I did.
Mr. BILIRAKIS. You did, and the IG found against you, did he?
Ms. CARUANA. The IG found that I may have been a biased witness because he had told them that I was just making my complaint as retaliatory because I was reassigned.
Mr. BILIRAKIS. As retaliatory.
Ms. CARUANA. And I was upset that the IG did not find in my favor because there were no witnesses. I said to them afterwards that I do not think too many people are sexually harassed in front of anybody.
What he said to everybody was there were no witnesses.
Mr. BILIRAKIS. Yes.
Ms. CARUANA. But I do not think too many people are going to say that somebody said or did this, knowing that they have got to go through all of this.
Mr. BILIRAKIS. Who is Susan Odom, Ms. Caruana, and what happened to her?
Ms. CARUANA. Susan Odom was the Associate Director's secretary in the Director's office when I was there. She has since resigned.
Mr. BILIRAKIS. And that is it?
Ms. CARUANA. I believe she is living in Florida.
Mr. BILIRAKIS. Where in Florida? Do you know?
Ms. CARUANA. I do not know. I originally heard she was in Jacksonville, and then I have heard she is in the West Palm Beach area.
Mr. BILIRAKIS. Okay. Do you have any personal knowledge of anything that might have happened to her or involved her that might be pertinent to this hearing?
Ms. CARUANA. Yes, sir.
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Mr. BILIRAKIS. Share that with us.
Ms. CARUANA. After I was in the office for about a month, it became clear to me that there was something going on between Mr. Calhoun and Susan Odom. I was not allowed to take a lunch. I had to be at my desk all the time. I was not allowed to take leave when he was not there, yet Susan was allowed to leave the office every day, go and pick up his cleaning, go to his post office box and get his mail, and pick up lunch for him.
There were several incidents that happened, and I went into Mr. Calhoun's office, and I said, ''Something has got to be done. What's going on with you and Susan has to stop. You've worked 25 years to get where you are, and you're going to lose it all, and I don't think she's worth it.''
And said to me, ''You've come to the brilliant deduction that I'm 'F-ing' her. So what?''
As a friend, I was concerned. I just said, ''You've brought this into the office, and it is disrupting the office, and the entire medical center.''
And after that he seemed to make my life more miserable. I guess that was none of my business, and I should have not said anything.
Mr. BILIRAKIS. So you were basically concerned about him?
Ms. CARUANA. Yes.
Mr. BILIRAKIS. When you made these comments?
Ms. CARUANA. Yes, I was. After that, she eventually got a promotion, and then she resigned, I believe, 2 days before the announcement was made that he was being reassigned to Florida.
Mr. BILIRAKIS. All right. Let me ask very quickly here. I know that Ms. Barefoot is no longer a VA employee. She took retirement a couple of years ago. Have any of you experienced any type of retaliatory action since you agreement to testify before this subcommittee?
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Ms. Force? Very quickly, if you would all maybe respond.
Ms. FORCE. No, sir.
Mr. EVERETT. No. Ms. Caruana.
Ms. CARUANA. No, I am just looked at like I am from another planet, but I cannot consider that retaliatory.
Mr. BILIRAKIS. Ms. Moore-Russell.
Ms. MOORE-RUSSELL. Well, I was told I could not take advanced payment for this trip and everyone else was informed that they could.
Mr. BILIRAKIS. And in your opinion that is retaliatory?
Ms. MOORE-RUSSELL. Yes, because the employee travel clerk is one of Mr. Calhoun's lieutenants. I met my supervisor in the hall the morning that I was leaving, and she said, ''Well, I would ask Ms. Moore a question, but perhaps she don't have time to give me a testimony.''
Mr. BILIRAKIS. Ms. Dawkins.
Ms. DAWKINS. No, I have not.
Mr. BILIRAKIS. Ms. Barefoot, I know you have been gone a couple of years. Do you have anything you wanted to say in that regard?
Ms. BAREFOOT. In regard to what, Susan Odom or— —
Mr. BILIRAKIS. Retaliatory action.
Ms. BAREFOOT. Oh, no, sir.
Mr. BILIRAKIS. Thank you.
All right. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you.
Ladies, we know from 4 years ago, to continue this line Mr. Bilirakis brought up, that witnesses such as yourself have had concerns about reprisals. If you believe that you are experiencing reprisals because of your testimony, this subcommittee wants to know.
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I would consider included, but not limited to that, any isolation you experience, any comments made toward you, and as I said, I do not limit it to that. That would also, for instance, include any non-communication from VA to any correspondence that you have given to your supervisors.
I can assure you that this subcommittee takes this dead serious, and I want to put VA on notice now that I will use the subpoena powers of this subcommittee to subpoena anyone that VA has not taken appropriate action against if these complaints are filed.
I want to again thank you very much. I thank you for your courage. I thank you that you have taken the time to be up here, and hopefully this committee meeting, unlike the one 4 years ago, will lead to a different set of circumstances for the handling of these type cases, where hospital directors and senior supervisors are not simply either retired or given a plush assignment somewhere else.
Thank you very much.
The chair will now recognize Ms. Ronnie Blumenthal, Director, Office of Federal Operations, Equal Employment Opportunity Commission, and ask her to introduce her counsel.
STATEMENT OF RONNIE BLUMENTHAL, DIRECTOR, OFFICE OF FEDERAL OPERATIONS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ACCOMPANIED BY NICHOLAS M. INZEO, DEPUTY LEGAL COUNSEL
STATEMENT OF RONNIE BLUMENTHAL
Ms. BLUMENTHAL. Thank you, Mr. Chairman.
With me today are my colleagues, Nicholas Inzeo, the Deputy Legal Counsel for the EEOC, and several staff members from the Commission: Elaine Hirschkowitz of the Legal Counsel's Office, and two other senior officials with the Office of Federal Operations, Robert Walker and Ed Elkins.
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Shall I?
Mr. EVERETT. Yes.
Ms. BLUMENTHAL. I will excerpt my statement.
Mr. EVERETT. I beg your pardon?
Ms. BLUMENTHAL. Do you wish me to excerpt my statement?
Mr. EVERETT. Yes. Thank you.
Ms. BLUMENTHAL. Thank you, Mr. Chairman.
Thank you for the opportunity to appear before you today.
While the statutes the EEOC enforces require Federal Government agencies to comply with our decision, EEOC has no coercive authority in the federal sector. Although we can issue orders at the appellate level and most are followed, unlike the private sector, we cannot take a federal employer to court to resolve a complaint of discrimination.
However, within the framework established by the statutes, regulations and directives governing the federal EEO process, each individual agency has great flexibility in the structure of its EEO program. Some agencies have independent offices reporting directly to the head of the agency. The EEO program at the Department of Veterans Affairs is under the direction of a Deputy Assistant Secretary for Equal Opportunity, who reports to the Assistant Secretary for Human Resources and Administration.
Agencies operate their field installations, again, in a very flexible manner. It varies very widely from department to department.
What I would like to do is give you a brief overview of the EEOC complaints process and the basic aspects of that process.
The process begins, as the previous witnesses have testified, when a federal employee or applicant contacts a counselor, and counseling is a requirement as the first step, and it permits informal resolution. Many government agencies are using alternative dispute resolution techniques at this stage.
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The counselor is supposed to provide the complainant with information on the process, including the time limitations involved. The counselor also contacts management and attempts to assist the parties in achieving resolution.
The role of the counselor is to facilitate early resolution, not to advocate either party or recommend specific terms of a resolution agreement. Many agencies use full-time or collateral duty counselors. According to the reports filed with us by DVA, they use collateral duty counselors. They have regular jobs and then do counseling as a collateral duty.
At the end of counseling unless the matter is resolved, the aggrieved person must be given written notice of the right to file a formal EEO complaint and instructions on how to file it.
The aggrieved person can go formal and file a complaint with the federal agency against which the complaint is directed, and as Congressman Clyburn said, after 180 days of filing a formal complaint, any Federal Government employee in any government agency has the right to come to an EEOC office and ask for a hearing.
The parties may extend various time limits, but basically after 180 days of going forward, of filing a formal complaint, a federal employee can request a hearing at the EEOC.
If the complaint is not dismissed and they do not ask for a hearing, an agency must conduct an investigation and develop a complete record. Many agencies have full-time investigative staff, while other federal agencies contract with outside organization.
In fiscal year 1996, the Department of Veterans Affairs contracted for 59 percent of its investigations. The remainder were conducted by collateral duty investigators.
After the investigation or if it hasn't been completed and the complainant requests it, the agency must supply the complainant a copy of the notice and of the file information, informing them of the right to ask EEOC for a hearing.
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If the complainant does not want to go the hearing route and asks for a final agency decision, the agency must issue it within 60 days.
I should also inform you that the complaint also has a completely independent right to file a civil action in U.S. district court within 90 days of receipt of the agency's final decision, if they have not filed an appeal. If they file an appeal with the EEOC, they still have the right to go to U.S. district court.
They can also file a civil action, again, 180 days from the filing of an EEO formal complaint. They can come to the EEOC for a hearing or they can go right to U.S. district court.
If the complainant requests a hearing and the case is assigned to one of EEOC's administrative judges who are located in 40 offices around the country, the judge has the option of assisting the parties in considering settlement, but the judge also has the authority to order discovery or the production of documents and employee witnesses and can issue findings of fact and conclusions of law either from the bench or can issue it in writing.
And after the AJ's final decision, the agency has to issue a final decision. An agency may reject or modify the Administrative Judge's ruling, but they have to issue a conclusion.
At that point the complainant can come to the EEOC in Washington and file an appeal. Both parties are allowed to file briefs on the appeal.
When it is issued, both parties are notified that they have a right to request full review by the entire membership of the EEOC, the five presidential appointees confirmed by the Senate. If an appellate decision orders compliance action or a finding of discrimination is made, the EEOC monitors that action.
I just wanted to give you a few statistics, some with regard to DVA and some with government-wide statistics. In 1995, 10,000 people, 10,000 federal employees requested hearings from the EEOC.
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With regard to DVA, for 1995 you will note that I submitted a chart for the record. The department had 8.36 percent of total federal workers, 8.01 percent of total complaints, and 14.10 percent of the sexual harassment complaints, the formal complaints.
Thank you. I will be happy to answer any questions following Mr. Inzeo's testimony about sexual harassment.
[The prepared statement of Ms. Blumenthal, with attachment, appears on p. 189.]
Mr. EVERETT. All of that testimony will be entered into the record.
Ms. BLUMENTHAL. Thank you, sir.
Mr. EVERETT. Let me ask you what is the legal definition of sexual harassment, including what is—oh, I am sorry. Excuse me. Please go ahead.
STATEMENT OF NICHOLAS INZEO
Mr. INZEO. Thank you, Mr. Chairman and members of the committee.
My name is Nicholas Inzeo. I am the Deputy Legal Counsel for the Equal Employment Opportunity Commission, and I appreciate the opportunity to appear before you today to discuss the legal issue of sexual harassment in the work place.
Sexual harassment in employment is a form of unlawful sex discrimination that violates Title VII of the Civil Rights Act of 1964. In 1980, the EEOC issued its guidelines on sexual harassment at 29 CFR Section 1604.11, which made clear that unwelcome sexual conduct in the work place is unlawful when, one, submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; two, submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or, three, such conduct has the purpose of effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Conduct can be of a physical or verbal nature.
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Sexual harassment is unlawful only if it is unwelcome to the person claiming harassment. Unlawful though means that the person complaining of harassment did not solicit or incite the conduct and regarded it as undesirable or offensive.
There are two primary categories of sexual harassment: quid pro quo and hostile environment. Although these claims are theoretically distinct, the lines between them are often not clear, and they may occur together.
Quid pro quo harassment occurs when a supervisor makes submission to sexual conduct a condition for job retention, promotion, or any tangible job benefits. Quid pro quo harassment can be explicit, as when a supervisor says to a subordinate that he will fire her if she does not engage in sexual conduct.
Alternatively, sexual harassment can be implicit, as when a supervisor makes sexual advances to a subordinate, is rejected, and shortly thereafter fires her or takes other adverse action. In the latter example the subordinate can establish a violation of Title VII if she proves that her rejection of the supervisor's advances was a motive for her termination or other adverse action.
An employer is automatically liable for quid pro quo harassment by a supervisor. This is because the employer is responsible for the supervisor's use or abuse of the powers delegated to them.
In 1986, the Supreme Court issued its decision in Meritor Savings Bank v. Vinson, affirming the EEOC's definition of sexual harassment in its guidelines. The Court recognized that sexual harassment violates Title VII when it creates a hostile work environment even if no tangible harm is threatened.
This type of harassment can occur when anyone in the work place, the supervisor, the co-worker, or even a non-employee, subjects an individual to unwelcome sexual conduct that is sufficiently severe or pervasive to create a hostile or abusive work environment.
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In 1993, the Supreme Court elaborated on the legal standard for establishing a hostile environment in Harris v. Fork Lift Systems, Inc. The Court there held that a complainant need not prove that she suffered psychological harm as a result of the harassment. Rather, she must establish that a reasonable person would have found the conduct sufficiently severe or pervasive to create a hostile environment.
Justice Ginsberg put it even more simply. ''It is sufficient to prove that the harassment altered the working conditions so as to make it more difficult to do the job.''
Courts are split as to when an employer is liable for hostile environment harassment by a supervisor. Most courts recognize that companies are always liable for misconduct by a high level official, such as a company president. This is because the actions of such individuals are considered to be tantamount to the actions of the employer.
The legal standard though is less clear with regard to sexual harassment by other managers and supervisors. In the Meritor case, the Supreme Court held that normal agency principles should apply.
Some courts have then held that under those principles, an employer is not responsible for hostile environment harassment by a supervisor if it had an explicit policy, it took action against offending employees, and the complainant did not notify higher management of the harassment.
Other courts and the EEOC have held that the employer is liable under agency principles wherever its supervisors used or were aided in its powers delegated to them by the employer. In such circumstances, preventive and corrective action by the employer would not eliminate liability, but could reduce the amount of damages awarded against it.
One issue that has arisen in some recent hostile environment cases is whether Title VII is violated when an individual in a work place is abusive and sexually harasses both men and women. Such an individual might be called an equal opportunity harasser.
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Since sexual harassment is a form of sex discrimination, a female complainant must prove that she would not have been subjected to the harassment had she been a man. Many courts have found where an allegation has been raised that abuse is directed at both men and women, that sexual harassment still occurs where it is more pervasive, more severe, or where it is sexual in nature towards the women, but not sexual in nature towards the men.
I hope that this testimony has provided the committee a fuller understanding, and I will be happy to answer any questions that you may have.
[The prepared statement of Mr. Inzeo appears on p. 194.]
Mr. EVERETT. It has, and thank you very much. You have co-opted some of my questions already, but I do have a couple more that I would like to ask.
Setting sexual harassment aside for a moment, and you have heard sworn testimony this morning of the abusive cursing, threatening behavior of this particular Director, is that in itself, when as I said we have sworn testimony that there are witnesses to it; is that in itself reason for dismissal?
Mr. INZEO. Mr. Chairman, I would not want to comment on the particular instances here since there are matters that have been filed, since there have been EEO complaints filed that may come before EEOC.
Mr. EVERETT. Well, let me ask it another way. What constitutes a reason for dismissal when the Director threatens and verbally abuses an employee?
Mr. INZEO. And answering generally and hypothetically, Mr. Chairman, misconduct by a federal employee can occur where that federal employee or manager is abusive of employees. Such abusive behavior can also constitute sexual harassment if it is aimed at employees of one sex more than another or where it is sexual in nature towards women and not towards men.
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If that sexual harassment were to occur, then that would be a violation of Title VII and would be actionable.
Mr. EVERETT. The 180 days that you have mentioned and that our colleague, Mr. Clyburn, had mentioned earlier, how do we assume that the employee knows that they have 180 days?
Ms. BLUMENTHAL. Throughout the process, from the moment they walk into counseling, employees are supposed to be given verbally and in writing, by their employing agencies, documents which in lay language explain what the time limits are and what their rights are.
EEOC has made documents available to federal agencies to distribute to their employees. We try and do as much outreach within our resources as possible, but by regulation, employees are to be notified of all of these time limits by their employing agency.
Mr. EVERETT. Okay. To make sure I understand your answer correctly, when these ladies and if these ladies filed an EEO complaint, they should have been given by the local EEO officer a written and oral statement of what their options were in reference to the 180 days?
Ms. BLUMENTHAL. Well, with regard to the process, asking EEOC for a hearing after 180 days after they go formal, is supposed to be explained to them in the counseling process. The counseling process is not the formal part. It is supposed to be an informal resolution technique, and after a certain number of days, usually 30, if the complainant is unhappy, they do what in the Federal Government is called ''going formal,'' and at that point the 180 days kicks in. They are to be notified that they can come to the EEOC after 180 days.
Mr. EVERETT. These folks responsible for giving that advice, is there a report on each individual incident that they are required to file with EEO or with VA?
Ms. BLUMENTHAL. Yes.
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Mr. EVERETT. And is there a checklist for what they have done?
Ms. BLUMENTHAL. There is no checklist, but each agency is mandated to report to the EEOC annually the number of counseling contacts. It is not broken down, and it is frequently not broken down even between headquarters and field installations, but the number of contacts with the counselor, certainly the number of people who have gone formal and then once they come to the EEOC. We keep very precise records of how many people have asked for hearings— —
Mr. EVERETT. In other words, if a person contacted an EEOC officer, you would have no way of knowing whether a report was made or not?
Ms. BLUMENTHAL. Whether they were informed, no, but we would have a knowledge that the counselor was contacted.
Mr. EVERETT. By name?
Ms. BLUMENTHAL. By name of the counselor, no. By agency. An agency would report on a report that they must file.
Mr. EVERETT. Help me understand this a minute.
Ms. BLUMENTHAL. Surely.
Mr. EVERETT. Are we talking about a total number here or are we talking about some sort of checklist so that we know the counselor performed the duties by regulation they were required to perform?
Ms. BLUMENTHAL. There is no checklist. It is the total number, your first statement.
Mr. EVERETT. Okay. Thank you very much.
Ms. BLUMENTHAL. Thank you.
Mr. EVERETT. I yield to our Ranking Member, Mr. Evans.
Mr. EVANS. Thank you, Mr. Chairman.
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Does the EEOC keep records of the number of sexual harassment complaints that are found to have merit compared to those that found that there is no cause?
And if you do, do you have a breakdown that compares substantiated allegations against VA employees compared to other federal agencies?
Ms. BLUMENTHAL. We keep some records, sir, but not in the exact format that you described. Because of the way federal employee cases drop out in the system, we would have no way of knowing settlement by issue. Sexual harassment is viewed as an issue, as opposed to the basis, which is race, color, creed, sex, religion, national origin, disability, and age. Sexual harassment is a subset of sex discrimination.
We do not have it by issue, and we do not have settlements by issue. So you cannot tell if it falls out of the system. It is frequently a meritorious case that has been settled.
We can, for the record later, send information up as to the data we do keep.
Mr. EVANS. Do you have any way of tracking when an individual makes a complaint whether the person they are complaining about has had previous settlements or penalties assessed against them?
Ms. BLUMENTHAL. The EEOC government-wide does not with regard to individuals. The whole scheme of Title VII in the private sector and in the Federal Government is not geared to an individual. It is not like tort suits. It is geared towards the agencies.
Mr. EVANS. I see. All right. Now, the statistics you provided seem to indicate that in 1995 VA employees constituted about eight percent of the federal work force. Yet 14 percent of the total sexual harassment allegations against federal agencies were directed at the DVA.
Does this seem like a particularly high percentage of sexual harassment claims against the VA?
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And if so, how would you account for such a figure?
Ms. BLUMENTHAL. Again, I do not know. It is higher than their number of complaints in general. You are absolutely right, but I have no specific knowledge of exactly where they were filed or when.
We put this data together for this hearing. So I have no specific knowledge, but it clearly is just numerically out of proportion because they have 14 percent of the government-wide complaints.
Mr. EVANS. All right. Thank you very much.
Thank you, Mr. Chairman.
Mr. EVERETT. Thank you, Mr. Evans. Ms. Bilirakis.
Mr. BILIRAKIS. Thank you, Mr. Chairman.
And I particularly appreciate the information that both of you have imparted to us.
Ms. BLUMENTHAL. Thank you.
Mr. BILIRAKIS. You have answered, again, some questions on definitions, if you will, and that sort of thing.
Fourteen point one percent of sexual harassment complaints that have been filed, that is total sexual harassment complaints that have been filed, were attributable to the DVA, to the Department of Veterans Affairs, right?
Ms. BLUMENTHAL. That's correct.
Mr. BILIRAKIS. All right, and that is filed outside of the agency and outside of the department? Is that what we are referring to here?
Ms. BLUMENTHAL. The filing is the formal complaint process that kicks off the 180-day period that the Chairman was talking about.
Mr. BILIRAKIS. Yes.
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Ms. BLUMENTHAL. It is not counseling. The women who testified before we testified were basically talking about the counseling process.
Mr. BILIRAKIS. Right.
Ms. BLUMENTHAL. The 14.10 percent were people who have filed formal complaints of discrimination.
Mr. BILIRAKIS. All right. Now, your job is a very important one, and I commend you. You have oversight of the equal employment opportunity complaint process in the federal sector, and it says including the hearings and appellate processes. Do you have some responsibility for the counseling portion?
Ms. BLUMENTHAL. The counseling portion is done exclusively in federal agencies themselves.
I should mention one other aspect. It is publicized, but we are not sure every government employee knows this. When there is a cross-cutting complaint against a high official, there are a small group of EEOC employees in my office, in the Office of Federal Operations, who can, on request, investigate and counsel people, but only on request. It is a very small group of people, and it has to be a crosscutting complaint.
Mr. BILIRAKIS. Requests on the part of whom?
Ms. BLUMENTHAL. Generally of the complainant and of the agency. They frequently feel that there is nobody in their own agency or they pull people from other parts of the agency, and sometimes it can start as early as the counseling process.
Mr. BILIRAKIS. All right.
Ms. BLUMENTHAL. But that happens perhaps 20 times a year. So the vast majority, sir, are counseled within their own agency.
Mr. BILIRAKIS. All right, but that is basically what I am trying to get to, and I appreciate your answer. In other words, you do not know how many EEOC cases have taken place in each individual agency or department?
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Ms. BLUMENTHAL. How many?
Mr. BILIRAKIS. That have not been, so to speak, appealed to the upper level?
Ms. BLUMENTHAL. We know how many counseling contacts have been made, how many people walk into a counselor's office, but we do not know if somebody comes in or we cannot tell if it is more than one contact and we know how many people have gone formal. You can extrapolate some numbers and determine these cases.
Mr. BILIRAKIS. Well, but the young ladies who testified—I do not know—I guess it looks like three of them have an attorney, and so apparently they are bringing their cases higher, to the higher level. You would not know that their cases were heard by the VA EEO, at that particular level, and whether or not those cases were brought forward to the higher level? You would not know that?
Ms. BLUMENTHAL. If they went formal, we would know that, but specifically— —
Mr. BILIRAKIS. So you cannot tell this committee, then, what percentage of total EEC complaints took place in the VA that ended at that point and that were not appealed? I am going to use the word ''appealed.'' I am not sure if it is appropriate.
Ms. BLUMENTHAL. We can tell how many cases went to counseling and how many cases went formal, and from some math we can extrapolate.
Mr. BILIRAKIS. Oh, you can tell how many went to counseling?
Ms. BLUMENTHAL. Yes, yes, but we cannot tell if they went to counseling more than once. Sometimes we cannot tell if it was settled or if the person just decided it wasn't—many people come to counseling with work place disputes that have nothing to do with discrimination, and they are settled then and there on the spot. It is a work place dispute that may involve a compensation issue that has nothing to do with any kind of discrimination.
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Mr. BILIRAKIS. All right.
Ms. BLUMENTHAL. And a lot of people go to counseling and find out that they really need to go to their personnel officer.
Mr. BILIRAKIS. Yes, all right. Of course, I am talking about counseling at the level that these women talked about.
How much leeway does Title VII give the departments and agencies in establishing the EEO process? And does each department and agency have exactly the same process?
Ms. BLUMENTHAL. The process of counseling, going formal, having an investigation or a hearing and going to appellate is exactly the same.
Mr. BILIRAKIS. All right.
Ms. BLUMENTHAL. But how they structure it, no. Because of the vast variety of government agencies, there is a great amount of flexibility built in for agencies as a result of their own structure. Some have many offices offshore. Some are all in the continental United States. It varies a lot. A lot of it has to do with geography, but there are many other variables that agencies— —
Mr. BILIRAKIS. Well, Ms. Blumenthal, you were in the room, I guess, when they testified, were you not?
Ms. BLUMENTHAL. Yes, sir.
Mr. BILIRAKIS. And you heard their testimony. You also heard them say that they were not advised that they could appeal it to another level, and I am sure that their testimony was truthful because they were under oath.
Ms. BLUMENTHAL. Certainly.
Mr. BILIRAKIS. Don't you find because you care—you are in a job because you care; otherwise you cannot do your job.
Ms. BLUMENTHAL. For 27 years.
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Mr. BILIRAKIS. Twenty-seven years. Well, don't you find something wrong with the process when you hear that kind of testimony, the fact that these people would, I think, reasonably be concerned and be frightened and not expect and they already told us they did not expect any good results from the EEO process; don't you find something wrong with all of that?
And if you do, are you in a position to make any recommendations to the Congress in terms of changes maybe that should take place?
Ms. BLUMENTHAL. I am not in a position to make any recommendations to the Congress as an operational staff person, but I do think that we will be in contact with a variety of people to make sure that people know, particularly at DVA, what their procedural rights are and are given to every employee at the Department of Veterans Affairs. Operationally we can do that without a great deal of difficulty.
Mr. BILIRAKIS. With all due respect, Mr. Chairman, if I may, how about this fox guarding the henhouse concept at that level?
Ms. BLUMENTHAL. There has been a lot of dispute in the federal community and up in Congress for the past 10 years about that issue, and as I said, I am an operational office director, and my job is to implement whatever the Congress and the executive branch does. There has been a long series of hearings and disputes on this issue as to whether agencies should investigate themselves with regard to EEO complaints, and Congress has received a variety of pieces of legislation that have been introduced on that issue.
Mr. BILIRAKIS. But you cannot make any recommendations?
Ms. BLUMENTHAL. Personally.
Mr. BILIRAKIS. You can personally, right?
Ms. BLUMENTHAL. No. Personally I am an operational office director, and I implement whatever the Congress decides.
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Mr. BILIRAKIS. Come on now. I want a better answer than that. (Laughter.)
Ms. BLUMENTHAL. There has been a debate— —
Mr. BILIRAKIS. And I am sure you can give me a better answer. What keeps you from doing so?
Ms. BLUMENTHAL. There has been a debate about this for many years with regard to whether or not agencies should do the preliminary investigation themselves, and the Commission recognized that in 1992 when they passed regulations giving that 180-day right. That only came to the fore in 1992 because they felt that agencies should not have their own timetables. They should operate on a government-wide timetable.
And so since 1992, there has been a seachange in the number of hearings requested, and that has given a lot of employees the ability to go outside their agency and come to us.
Mr. BILIRAKIS. Well, my time is long up. Thanks for your indulgence, Mr. Chairman.
Thank you. Thank you.
Mr. EVERETT. Before I go to the long suffering and patient Mr. Snyder, I would remark that I should have mentioned earlier that all panels will be expected to respond to written questions that members may have and may submit to them at a later date.
And, secondly, any reference to the fox guarding the henhouse should be considered as a reference to the fox guarding the hen and/or rooster house. (Laughter.)
Mr. Snyder.
Mr. SNYDER. Thank you, Mr. Chairman.
I want to pick up where Mr. Bilirakis left off there because, I mean, I think what we are about here is to do some air clearing, but also to look for lessons learned. I mean it does not do any good to sit here for what, I think, is going to turn out to be about 8 hours if we do not look to what we can do to make some changes so that these kinds of events do not happen again.
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The issue of the directors and the manager, the henhouse issue here. Mr. Inzeo, do you have any comments about that?
I mean there are agencies, I think, where you can set up some controls. For example, should there not be perhaps some special rules with regard to when the alleged harasser is the director of the agency? I mean, Mr. Gober is a smart man. He is sitting there in the back. Are there some lessons learned from your experience from other agencies that the VA might adopt in order to keep this situation from happening again?
Mr. INZEO. I am not sure that I can tell you that there are other experiences that I am aware of. I can tell you though that we are concerned with the issue of what would appear to be— —
Mr. SNYDER. Home cooking.
Mr. INZEO (continuing). Called sometimes conflict of interest.
Mr. SNYDER. Yes.
Mr. INZEO. Or conflict of position, where an individual who is alleged to have discriminated has some control over the process.
Mr. SNYDER. Right.
Mr. INZEO. The peculiar set-up at the VA center that the witnesses discussed would appear to make that situation worse, where the EEO manager on site reports to in this instance the individual who was alleged to have discriminated.
Mr. SNYDER. Right.
Mr. INZEO. We have within general guidelines in our regulations, and we have a management directive that is applicable to all agencies, attempted to warn agencies that they should not allow those types of conflicts to exist.
We do not have the ability to know when they do exist. However, we would certainly counsel agencies against that.
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Mr. SNYDER. So, Mr. Brown and his staff, if they choose, by tomorrow they could change their policy in some way so as to make this problem go away. There does not need to be legislation. Is that what you are saying?
Mr. INZEO. I mean, they could, for instance, delegate differently the EEO responsibilities for the agency. There are some agencies that have a central EEO office in Washington, and that office is responsible for all of the EEO offices around the country.
Mr. SNYDER. I see.
Mr. INZEO. And that way the EEO manager would not be under the supervision of a local director.
Mr. SNYDER. All right. So there are some things that they can do without statutory change. Okay.
Mr. INZEO. Yes.
Mr. SNYDER. I have got the Inspector General's report here, and just the conclusions. Our review determined Mr. Calhoun sexually harassed one of the three females. We conclude his behavior towards the other two was abusive, threatening, and inappropriate, and also that Mr. Calhoun was less than truthful, which raises doubt about his credibility.
Now, does this not look like a guy, if those are the conclusions, and I do not know Mr. Calhoun, that ought to be kept as a Director?
Is it your experience that Mr. Gober's and Mr. Brown's hands are tied? I mean there is some information out there that the goal was to somehow work out a way to remove him as Director. Have our Civil Service laws got to the point where I have got evidence I have got a lying, harassing, abusive, threatening—well, I will not come up with my own conclusions—but somehow all we can do is to come up with a settlement? I mean is that where the employment laws, the protections for federal employees have got us, that we now are protecting lying abusers?
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What I am leading up to: do we all need to do some work in that area?
Mr. INZEO. I would not want to make any comments about the particular allegations raised today.
Mr. SNYDER. Right. Let me put it this way. If you are in a top level management position working for the Federal Government, you know, even if you are a lying abuser, it is going to be pretty hard and you have got pretty good job security?
Mr. INZEO. I can tell you from my experience, and I believe that Ms. Blumenthal would say the same thing, that in our experience upper level managers should and are held to a higher standard. We would expect that, and I think we would expect it of others.
Mr. SNYDER. Okay. All right. Let me go on to another one, if I can.
The issue, and I asked Ms. Force, I believe it was, about when the settlement was explained to her, as a general matter when you have a complaint—and I do not want to talk about this case—but when you have a complaint that has been made and apparently the agency at some level has decided that there is some confirmation for the story, but they get into this problem of it is going to be a tough case and it is going to be overturned; as a general matter of course, should that agency—you know, basically it is a plea bargain—should they be sitting down as a matter of policy with the complainants and lay out the facts? You know, we could go for murder I, but we are going to take murder II because of a proof problem.
Or do you think that that is not something—do you understand what I am getting at here? I do not mean set in rules, but more as a matter of policy?
Ms. BLUMENTHAL. That is just what you said. It is very hard to set rules in this area.
Mr. SNYDER. Right.
Ms. BLUMENTHAL. Because personnel policy and human resources policy, private sector or federal sector, it tends to vary case by case. As Mr. Inzeo said, there are cases where senior level officials have been very harshly disciplined. There are others where settlements are reached with all parties.
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It is like litigation. Each case, particularly if it involves a group of people as this one seems to, is handled differently. Unless there is a confidentiality agreement, usually the relief is explained to all parties if you are talking about government-wide. It usually is explained. People who have complained generally know what happened.
Mr. SNYDER. But it apparently was not in this issue.
I have some other questions. Mr. Chairman, if you decide there is a second round, I will be armed and ready.
Mr. EVERETT. Thank you, Mr. Snyder.
I would say to this panel, and if you would not mind, we could submit those questions for the record, and I am sure that they would respond.
Much of what we have heard so far today is kind of deja vu. Four years ago we went through a lot of this. The VA had an opportunity to correct some of the situations that exist today, and I think that is one reason that Mr. Evans and I are considering legislation, statute changes, if you will, that would address these problems.
I do thank this panel for appearing before us today and for your testimony.
Ms. BLUMENTHAL. Thank you, Mr. Chairman.
Mr. INZEO. Thank you, Mr. Chairman.
Mr. EVERETT. Yes. I think it is only fair that since I swore in the first panel, that I swear in your panel. Mr. Gober, would you all please approach the table and raise your right hands and repeat after me?
[Witnesses sworn.]
Mr. EVERETT. Thank you. Please be seated.
Mr. Deputy Secretary, thank you. I welcome you, and I thank you very much for coming today, and I would ask you to introduce your panel.
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Deputy Secretary GOBER. Thank you, Mr. Chairman. It is my pleasure to do so.
I have with me on my left here the Assistant Secretary for Human Resources and Administration, Eugene Brickhouse. Next to him is the Deputy Assistant Secretary for Equal Opportunity, Mr. Gerald Hinch. The Honorable Mary Lou Keener, the General Counsel of the Department. Dr. Jule Moravec, who is the Chief Network Officer for the Veterans Health Administration, and Dr. Leroy P. Gross, who is the Director of the Veterans Integrated Service Network No. 6, in which Fayetteville, NC, falls.
Mr. EVERETT. Thank you very much.
We will receive your testimony. If you could summarize it, we will make sure that your complete testimony is put in the record.
STATEMENT OF HON. HERSHEL GOBER, DEPUTY SECRETARY, DEPARTMENT OF VETERANS AFFAIRS ACCOMPANIED BY GERALD K. HINCH, DEPUTY ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY; HON. MARY LOU KEENER, GENERAL COUNSEL; JULE D. MORAVEC, Ph.D., CHIEF NETWORK OFFICER, VETERANS HEALTH ADMINISTRATOR; LEROY P. GROSS, M.D., DIRECTOR, VETERANS INTEGRATED SERVICE NETWORK NO. 6
STATEMENT OF HON. HERSHEL GOBER
Deputy Secretary GOBER. Thank you, sir.
I have submitted a written statement that I ask be included in the record, and I will summarize my statement as quickly as possible.
Mr. EVERETT. Without objection, so ordered.
Deputy Secretary GOBER. Mr. Chairman, and members of the committee, I appear before you today on behalf of Secretary Jesse Brown and the Department of Veterans Affairs to testify about VA's policies and practices regarding sexual harassment and other forms of discrimination in the work place.
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This has been a matter of utmost importance to Secretary Brown and myself from the very beginning, as I know it has for this subcommittee.
I was sworn in as Deputy Secretary of the Department of Veterans Affairs on February 4, 1993. One week later I was in Atlanta, GA, at the VA Medical Center there dealing with a terrible sexual harassment case that we had inherited and which has been referenced here today.
While I was there, I promised our employees—or my associates, as I like to call them—that this administration would not tolerate anything that would keep them from devoting their full attention to what we are supposed to be doing: serving veterans.
Secretary Brown and I have worked very hard ever since to fulfill that promise, and I will assure you. I know this committee is upset, but no one is more upset than Secretary Brown and I and all of those employees of the Department of Veterans Affairs who are loyal workers and who do not like to see the department's name drug through the mud because it sticks to all of us.
These people are wonderful. They have done a good job, and we are very proud of them.
Very early on, Secretary Brown established the policy of zero tolerance for sexual harassment and other forms of discrimination within the department. I cannot overstate how strongly I support this policy. Secretary Brown made the policy, and it is my duty as the chief operating officer to enforce it.
No level of harassment will be tolerated or condoned. Any and every allegation of sexual harassment or discrimination will be thoroughly investigated, and when evidence supports the allegation, the VA will take actions to protect victims and discipline offenders within the range of options allowed by law.
In saying this, however, it is relevant to clarify that zero tolerance does not mean that all offenders will, in every instance, be removed from federal service. Sexual harassment and discrimination can encompass such a broad range of conduct that removal from federal service may not always be the most appropriate or legal remedy.
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Secretary Brown and I have done everything that we know to support the zero tolerance policy regarding sexual harassment. He has issued letters to all VA employees expressing his strong commitment to diversity, equal employment opportunity, and the prevention of sexual harassment.
The Secretary has asked every one of our employees to join him in making the effort needed to uphold this commitment. In countless speeches to our VA associates, he and I both have both emphasized and reemphasized this policy. Every speech I have made where I speak with our VA employees, I talk to them about the fact we want them to be able to come to work in the morning, be treated with dignity and respect, and be free from any kind of fear that distracts them from doing their job.
Consistent with these efforts, the department has developed a program designed to prevent sexual harassment and discrimination by all employees, not just by senior executives. The program takes a three-pronged approach: communication, training, and policy development.
The Secretary issued his first all employee letter in 1993 and has issued numerous ones since then. Every employee has gone through 4 hours of training, and then we have 2 hours remedial training every 2 years. Secretary Brown and I have been through all of those trainings.
We have an ongoing training program for managers and supervisors concerning VA's equal employment programs and responsibilities. We have significantly improved the training for our EEO professionals to include counselors, investigators, and program managers.
In the area of policy development, we have established formal requirements that all allegations of sexual harassment be elevated above the field level facility for a high level review to determine whether intervention is necessary to protect an employee from harm, pending a full investigation and resolution of the allegations.
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In order to encourage the employees to bring forward their allegations and protect them when they do this, in May of 1993 we established a requirement for a high level review of all complaints of reprisal and retaliation. For those employees who wish to remain anonymous, we established a sexual harassment and discrimination hotline.
Other relevant policy developments include, but are not limited to, streamlining of the formal EEO complaint processing procedures; development of performance standards for senior executives to improve work force diversity and meet timeliness requirements; clarification of penalties for misconduct so there can be no question that sexual harassment and discrimination are actionable offenses, punishable by anything from reprimand to removal for a first offense.
Attached to my written testimony which I submitted to you, Mr. Chairman, is a comprehensive chronological list of the actions Secretary Brown has taken to deal with the issue of sexual harassment. The list is long and far-reaching because, as I have said before, the Secretary and I firmly believe in the institution and enforcement of a zero tolerance policy throughout VA.
Over the past 4 years we have had nine cases involving senior management officials in which we have taken action based on allegations of sexual harassment or related matters. In seven the executives resigned or retired. The other two instances the executives were taken out of the Senior Executive Service and placed in a lower grade position.
I would like to address briefly the case that precipitated this hearing, that of the former Director of the Fayetteville VA Medical Center, who was alleged to have engaged in sexual harassment.
Following an investigation, VA management seriously considered proposing his removal from federal service, but a review of the facts in the case created significant doubt that the evidence could sustain a removal action on appeal to the Merit System Protection Board or in the courts.
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As a result, a negotiated settlement was reached with the Director. To date the former Director steadfastly denies the allegations.
The agreement insured the Director's removal from the medical center, from the directorship of any VA facility, from the Senior Executive Service, and from any supervisory position, but it permitted him to continue as a government employee without loss of pay.
I fully understand and appreciate that some view VA's decision to reach that agreement as indicative of a lack of management's concern about sexual harassment, or possibly as a VA practice of protecting senior managers from the consequences of improper actions. I want to assure you, Mr. Chairman, and the members in the strongest possible terms that it does not.
If the verifiable evidence had been such that management was reasonably confident that the Merit System Protection Board or the courts would have sustained removal from federal service, then that action would have been pursued to its conclusion.
It is important to reiterate that management felt it was extremely important from the standpoint of both the provisions of health care services to our veterans and the work environment for our associates at this facility that the former Director be removed from his management position and relieved of all supervisory responsibilities as rapidly as possible.
Accordingly, VA entered into a settlement with him under which he was transferred out of the Fayetteville VA Medical Center. He also resigned, as I said earlier, from the Senior Executive Service and was reduced in grade and rank to a nonsupervisory GS–14 position.
By these actions, management achieved what was considered to be the most critical objectives. I fully understand that this decision will be second-guessed by some. However, we believe that, given the facts and the circumstances of this case, it was the best option available to us.
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One of the problems that emerged from the case in Atlanta, that I mentioned earlier at the beginning of my statement, was the fact that responsibility for investigating allegations of harassment rested with the facility Director. If the Director was the subject of the complaint, you can see that we had the classic situation of, as we say in Arkansas, ''the fox guarding the chicken house.''
That situation no longer exists. Now if there is a complaint about sexual harassment at any level, I dispatch an investigative team, completely independent of the Director or division or even the Under Secretary, to check out the allegations. As the chief operating officer of the department, I have the authority to do this, and I will make sure that when we send in these teams, and there is sexual harassment involved, there will always be high-ranking women on the team.
What concerns us most about the Fayetteville matter is that it has damaged VA's standing with some of our women employees and the women veterans that we serve, and this is most regrettable. As I have stated earlier, we have taken serious actions over the past 4 years to try to insure that all of our employees have a work place where they feel secure and safe from discrimination and harassment of any kind.
We believe it is very important not only for their well-being, but for our ability to provide veterans with the health care and other benefits and services they deserve.
To strengthen our employee protections further in light of this case, the Secretary has recently established the following new requirement. In any matter of allegations of sexual harassment or other misconduct against senior VA executives, the Secretary now requires that the allegations and recommendations for dealing with these situations be brought to the attention of a committee drawn from the senior staff in our VA headquarters here before action is taken to resolve this matter, and I will be heavily involved in the review of these cases, and then the recommendation will be made on the settlement.
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Our position is that matters of sexual harassment and other forms of discrimination are considered most serious and will receive the highest level of scrutiny.
We have recently, Mr. Chairman, conducted a survey of all of our employees throughout the VA to find out their perception on how the VA handles sexual harassment. That report is due by June, and at that time we will be more than glad to share that with you.
To insure this survey was conducted in an objective manner, we went to an outside contractor, a professional contractor.
In addition, Secretary Brown is in the process of composing and writing another letter to all of our employees to make sure that they understand that they are free to come forward. The letter will remind our employee of the means available to them to deal with any problems they may encounter in these areas. We are optimistic that these new measures will help us in our efforts.
And, Mr. Chairman, I would like to say in closing here before we begin the questioning that when I sat her this morning and listened to these ladies talk about they felt they were abandoned, I was appalled. I was upset. They are a member of our family, and for them to be out on a limb and feel like they were by themselves is wrong. Without even arguing the merits of the case or talking about any subsequent litigation, the fact is we have worked very, very hard to make everyone feel like they are a member of the VA family, and today I spoke to each of these ladies and told them that we will make sure that they receive the assistance that we can give within the law at their locations.
Now, Mr. Chairman, we are ready to respond to your questions.
[The prepared statement of Deputy Secretary Gober, with attachment, appears on p. 197.]
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Mr. EVERETT. Thank you, Mr. Chairman.
Secretary Brown was invited to the hearing today, and I am really disappointed he was unable to make it, but I do appreciate you coming. I have great respect for Secretary Brown and I respect the candor and frankness of the discussions that you and I have been able to have on other matters, and I have great confidence that you will try to do exactly what you say you will do.
I have concern, though, that there is a ''good ol' boy'' network out there, and that there is a culture at VA which very much needs changing. I am not sure whether you share that same belief about the culture.
I would say that I am pleased that Secretary Brown initiated and has been highly visible in promoting the VA's zero tolerance policy on sexual harassment. It appears, however, that some of VA's most senior career officials did not get the message.
You are the department's chief operating officer, and your willingness to appear and give an official explanation of Fayetteville and sexual harassment issues in the VA is appreciated, and I appreciate your comments that you closed with.
You know that we are going to ask some hard questions, but I do want to keep it constructive with the good government objective of identifying, addressing, and solving problems.
Mr. Secretary, many VA employees and members of the public believe that the VA has a culture, as I mentioned, of tolerance for misconduct and mismanagement by senior officials. Just read the newspapers from Florida, North Carolina, and New York. The only way to overcome this is to meet it head on and do something about it.
In the case that we are hearing about today, Mr. Calhoun, a VA Medical Center Director, had a pattern of abusive behavior apparently even before becoming a Director. Yet VA seems to be much more concerned, and that is the testimony that we have heard here today and it is the feeling, I think, of the majority of this committee, that VA is much more concerned about Mr. Calhoun than the rank and file employees who are on the receiving end.
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The VA's solution was to arrange a transfer to Florida and to create a new position for Mr. Calhoun where he would be paid more money than when he was a medical center Director, over $106,000, and also to a location where he already owned a home. The ''Club Med'' treatment has literally been met with derision by VA employees, as well as by editorial writers who, as you are aware, have mighty sharp pens.
Mr. Secretary, I would like to ask you how much did you personally know about the Calhoun case as it was pending in VISN 6 and in VA Washington's headquarters.
Deputy Secretary GOBER. Yes, sir. I will be glad to answer that, Mr. Chairman.
We were concerned about the management there because there had been complaints coming out of there before these sexual—and everybody stop me if I misspeak here—before the sexual harassment came to the forefront.
Let me back up a little bit. We have no record of any, or we have been unable to find any record about any, misconduct in Baetavia. When Mr. Calhoun left Batavia, he was promoted to an SES and moved to Fayetteville. We have from the IG file a form that says they had no complaints pending against him.
So if there is something out there, we did not know about it. We have searched back through our files. That is not to say there is not something there in Buffalo. I am sorry, but we did not have any information.
When the investigation started in Fayetteville, Dr. Moravec came in to brief me on the situation down there and told me what they were doing and wanted the delegation of authority to deal with the disciplinary situation there. That is not unusual. As you know, in government also not only have we been trying to push for the elimination of sexual harassment and discrimination. We have also been trying to let people make decisions at the lowest level possible.
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We are now moving back in the other direction in this area, but anyway, I signed over the delegation of authority to Dr. Moravec, and I was aware that the case was going on and that it was getting to be pretty serious.
When it came to me, they told me what the settlement was. My reaction to it was: is that the best deal you can get? Could we have gone to court? And it was explained to me that the people who looked at the case thought that the chances of prevailing might not be as good as they should be, and the last thing I wanted was to go before the MSPB, have it reversed, have to pay all kinds of attorney fees, maybe have to pay some other kind of monetary award, and put a person anywhere they wanted to go.
So, based on the merits, the decision was made to do this.
Mr. EVERETT. At this time I would like to ask unanimous consent that all members have 10 minutes to question this panel and that we possibly have a second round.
In checking his previous employment record, did you check both locations or just Buffalo?
Deputy Secretary GOBER. I am informed both locations.
Mr. EVERETT. Both?
Deputy Secretary GOBER. I would say this though. Really I do not think there was really a requirement to check both. Only when you promote someone to an SES is it required to check this, but we are going to close that gap also. We are going to shut the barn after the mule got out, but another mule will not get out.
Mr. EVERETT. I surely hope you are right.
Deputy Secretary GOBER. Well, we are going to do the best we can, sir. You know, we are a huge agency, 240,000 people, a huge agency, and I saw the figures here about how many more complaints we are having. Well, I take a different spin on that. I hope that indicates that our people are starting to feel like that they can come forward without fear of retaliation.
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I think we are making some progress. We will never be perfect, but we will try our best.
Mr. EVERETT. Mr. Secretary, you are welcome to look at it that way, but I would observe that other people would look at it in another fashion and would have perhaps the same right to do so.
The problem seems to be if I told you, ''Mr. Secretary, look out the window there. It is snowing,'' and you looked out the window and you did not see any snow, and I suggested that you would not see any snow, then you would not believe it was snowing, and I do not know that VA has demonstrated in any way that they have the concern they are telling me about today for the employees, and it is pretty apparent to me that the concern is more in alignment with these senior officials and department heads.
Now, you said that you felt like the settlement that you got was the best deal you could make. Who made that decision, and did they have benefit of counsel? And did counsel agree with that decision?
Deputy Secretary GOBER. I am going to ask Dr. Moravec and Dr. Gross, who were intimate in the details of this, to comment on that, if it is okay with you, sir.
Mr. EVERETT. Yes, sir.
Dr. MORAVEC. I would like to respond to that and then ask Dr. Gross to deal with more specific details.
In this kind of a situation and in this situation, Dr. Gross, who is our highest level field executive, has responsibility for making decisions about what it was we were dealing with, and he was very thorough, in my view, in trying to track the information coming ultimately out of the IG report and what he could glean from discussions with some on the EEO activities and processes, and would frequently call me to share with me what he was experiencing, what he was feeling and seeing.
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He was, of course, the contact to the various principals, the medical center Director at that time, Mr. Calhoun, and the regional counsel, the personnel experts, and so forth, as is the way it generally works in the field where we use that counsel very closely.
And as it evolved, it became apparent that we were ultimately not certain and felt that we would very easily or very possibly, perhaps not easily, be overturned, and the objective that we— —
Mr. EVERETT. Excuse me. When you say ''we,'' do you mean counsel advised you might be overturned?
Dr. MORAVEC. No, I mean the VA. When I say ''we,'' I mean VHA, the Veterans Health Administration as— —
Mr. EVERETT. Why would you not seek counsel's opinion on that?
Dr. MORAVEC. We did.
Mr. EVERETT. And counsel confirmed that the case might be overturned?
Dr. MORAVEC. No. Let me see if I can be more clear.
Mr. EVERETT. I appreciate that. What I am interested in is knowing did you seek counsel and did counsel say that this case would be overturned. Be as specific and short as you can, please.
Dr. MORAVEC. Yes. I will defer to Dr. Gross since he was the one that was on the scene making those contacts.
Mr. EVERETT. Thank you, sir.
Dr. GROSS. Thank you, Mr. Chairman.
I would like to say, first of all, that I am a newcomer to the VA. I joined the VA in 1995, in November from the private sector and look forward to the opportunity of serving the VA and the veterans, many of whom are my colleagues in the military.
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But to answer your question, when the IG report was consummated and I reviewed the IG report with my regional counsel, they reviewed the testimony. We consulted about what the next step is, and this is obviously a learning process for me. I have never been through this process in the VA before.
Mr. EVERETT. Dr. Gross, excuse me. We will come back to this a little bit later, but what I really would like is a yes or no answer. Did you seek counsel on this and did counsel advise you that this case could not be made?
Dr. GROSS. I sought counsel on it. Counsel presented to me a wide range of choices based on the table of penalties, and the decision was ultimately left up to me in consultation with other VA specialists.
Mr. EVERETT. Did they make any recommendation at all?
Dr. GROSS. They did not make a recommendation one way or the other.
Mr. EVERETT. Okay. Thank you. I will have additional questions.
If the committee will allow me, Secretary Gober, from a previous statement by Secretary Brown we understand there have been cases with 12 senior VA officials. I think you referred to nine. I assume the difference is the Atlanta situation.
Deputy Secretary GOBER. Yes, sir. Since we came in 1993, there has been nine.
Mr. EVERETT. Nine who have been demoted or have retired to avoid disciplinary action in the past 5 years for sexual harassment offenses.
Please inform the subcommittee of the general circumstances of each case, including whether it involved VHA or DVA officials, the type of offense, when it occurred, and the disposition.
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Deputy Secretary GOBER. Would you like that in writing, sir, or would you want— —
Mr. EVERETT. If you have got it now, I would like it now.
Deputy Secretary GOBER. I think we have that.
Mr. EVERETT. Let me ask you some questions. How many of these people were allowed just to retire?
Deputy Secretary GOBER. Seven out of nine, sir.
Mr. EVERETT. Okay. What was the nature of the complaints against these seven?
Deputy Secretary GOBER. I would point out, Mr. Chairman, some of these people were told to retire because if they did not retire, charges were going to be filed against them, and they chose to retire.
Mr. EVERETT. Did anybody receive a $25,000 buyout?
Deputy Secretary GOBER. Yes.
Mr. EVERETT. Let me get this straight. You told somebody to retire or they were going to have disciplinary action taken against them, and then you gave them a $25,000 buyout?
Deputy Secretary GOBER. I am not sure that this individual was one of the ones we told to retire.
Mr. Hinch will answer this question while I am— —
Mr. EVERETT. Yes, sir.
Mr. HINCH. Mr. Chairman, what happened was this particular individual you are talking about was aware that an allegation had been made against him and that we were beginning to investigate the actions and everything. At that time we had the window open for buyouts. So he decided it was in his best interest to jump out and take hold of a buyout before the matter was concluded.
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Mr. EVERETT. And there was nothing that we could do to preclude or keep a person who had a disciplinary action of this nature pending against him from getting a buyout?
Mr. HINCH. We had not gotten that far with it.
Mr. EVERETT. I beg your pardon?
Mr. HINCH. We had not gotten that far with it.
Mr. EVERETT. All right.
Mr. HINCH. It means he was aware that there was an allegation against him that has begun to be investigated. It means that he was aware of what he had done and what he felt the outcome would probably be.
Mr. EVERETT. I will yield to the gentleman.
Mr. HINCH. Excuse me?
Deputy Secretary GOBER. The investigations.
Mr. HINCH. Investigations.
Mr. EVERETT. But you do not have to give it. That is a discretionary thing. You do not have to give somebody a buyout.
Mr. HINCH. I did not give him a buyout, sir.
Mr. EVERETT. Somebody did.
Mr. HINCH. I am saying the buyout offer window was open at the time that he decided to leave. I have nothing to do with buyouts or personnel matters in that regard.
Mr. EVERETT. Mr. Secretary.
Deputy Secretary GOBER. He was not under formal investigation at the time. He just knew what he had done, and the buyout window was open. So he jumped in the life boat.
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Mr. EVERETT. Mr. Secretary, my time has run out for this round, and I do appreciate the patience of the members of the panel, but let me just say that we have got a situation here where somebody had an obvious charge made against him and somebody gave him, and, by the way, this is discretionary. They did not have to do it—gave him a $25,000 buyout.
Deputy Secretary GOBER. But if the person did not know that the investigation was going on, if it had not— —
Mr. EVERETT. Well, why didn't the person?
Deputy Secretary GOBER. If it had not reached that point sir. I mean, if it had not reached that point and he was one of those hundreds or whatever people that wanted a buyout and his position was targeted for a buyout, he got in there, and he got lost in the crowd.
Mr. EVERETT. It would not have been flagged?
Ms. KEENER. If I might make a comment, Mr. Chairman. If an individual seeks a buyout and because there is an investigation going on that has not been concluded at the time, everyone is fortunately considered to be innocent until proven guilty.
If the individual asks for a buyout and that buyout was then denied, that person could come back and sue us for retaliation because of the ongoing investigation. So there are a lot of— —
Mr. EVERETT. Even though a buyout is discretionary and it does not have to be given?
Ms. KEENER. If we chose not to give him the buyout, he could and, most likely, would allege that the reason we used to exercise our discretion not to give him the buyout was because of incidents that were alleged in the ongoing investigation.
Mr. EVERETT. I appreciate your answer. As I said, my time is out, but I would suggest to you that there are those who could use the same law to their advantage, and in this case obviously did.
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I recognize the Ranking Member of the committee, Mr. Clyburn.
Mr. CLYBURN. Thank you, Mr. Chairman.
I tend to agree. I was a little bit hesitant to break in, but I think we have to be very, very careful with these. The allegations are just that. They are allegations, and you have to be very, very careful going to conclusions.
I think it was said earlier that, a lot of times you can take a case to its conclusion and still lose it, and in the instances such as this if you deny someone the opportunity to buy out, I suspect they have got some pretty serious legal claims to be made against the VA. So you have to be very, very careful about it.
I would like to know, and let me preface my question by saying this. I was in Fayetteville a few weeks ago to do a banquet, and the morning afterwards some friends were having something for me. It did not occur to me until today, Mr. Chairman, that this gentleman, if I might call him that, Mr. Calhoun, was discussed pretty extensively. He is held in very low regard among the people that I heard talking about him. I did not know who he was and did not have any idea that I would be sitting here today in some assessment of him.
So this gentleman's actions were known throughout that community. People in that community abhor his actions. They are very disturbed by what they feel has been an unjust resolution of this matter.
If we do, in fact, have a zero tolerance for these kinds of issues in the VA, it would seem to me that those who are responsible for redressing these kinds of grievances have taken the real easy way out here, and I am wondering whether or not this is the final resolution of this particular case.
What would happen at this point if one of these ladies who we heard from earlier today were to bring legal action outside of the complaint process, were to file a lawsuit? They could very well file a tort action, especially the lady who said her breasts were massaged or something. That is a tort action.
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What would the VA's position be if a tort action were filed?
Ms. KEENER. At this point, Mr. Clyburn, the VA settlement agreement is final. The VA can take no more action against Mr. Calhoun.
The individual complainants always have the right to sue him for a variety of legal actions in a federal court. They can sue him for, from what I heard this morning, a variety of actions if they choose to do that.
The VA, because at the time that the alleged actions were committed Mr. Calhoun was a VA employee, we would be in the position of having to defend him against the complainant unless the allegations occurred outside the scope of his professional duties.
So if an allegation occurred when he was not in the position of the VA Medical Center facility Director, then we would not have to defend, but any actions alleged in a federal suit that occurred during the scope of his responsibilities as a Director, we, the VA and the Department of Justice, would have to defend.
Mr. CLYBURN. That is my problem here. If you have got to defend—I cannot remember which young lady who indicated that she was really verbally abused in the presence of the EEO officer and some other person by Mr. Calhoun—are you telling me now that if her attorney, and I understand that she has an attorney, were to file appropriate legal action, that the VA would, in fact, defend him because he made his decisions? This whole discussion was within the scope of his employment.
Ms. KEENER. We have a responsibility to defend actions of employees that are committed within the scope of their— —
Mr. CLYBURN. No, ma'am.
Ms. KEENER (continuing). Position.
Mr. CLYBURN. I do not believe that is the law. You are telling me that you have to defend and condone? I mean you are really defending that. You would be condoning those actions.
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Ms. KEENER. Well, Mr. Clyburn, there are a lot of attorneys that defend people that are accused of very serious crimes, too. Everyone is entitled to a lawyer, and fortunately or unfortunately the way the law is the VA is charged with defending VA employees when they are accused of violations of the law.
We would not actually provide the litigation. The Department of Justice would, but we would work with the Department of Justice, and we would have to defend this case.
As in any case that is litigated, a determination is always made on the merits of the case as, you know, how far you want to proceed with the litigation, but those are decisions that are made on each case based on the merits. I certainly cannot make any comments as to what might happen if any of these particular cases that we heard this morning were to be litigated, but the VA would, in fact, except for the exceptions that I noted, have to defend Mr. Calhoun.
Mr. CLYBURN. So these ladies are accurate in their emotions expressed here this morning that this guy, as far as the VA is concerned, has gotten away with all of this.
Ms. KEENER. I am not sure if he really got away that Scot free. He was transferred out of the facility. Those individuals at that facility no longer have to deal with Mr. Calhoun.
Mr. CLYBURN. I understand.
Ms. KEENER. He was stripped of his SES status. He is no longer in a supervisory position. He is not in a position that allows him to have any authority to supervise women in his current job in Florida.
So I do not think that he got away Scot free in this situation.
Mr. CLYBURN. Well, let me ask. I have a question. How many EEO officers within the VA are women?
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Mr. HINCH. Each medical center Director is also designated as an EEO officer. I do not know how many women medical center directors we have or regional directors in Veterans' Benefits, but the head of each office or medical center is the EEO officer.
The reason for that originally was that they wanted to designate the EEO officer as someone with authority to take whatever necessary corrective action was needed in settlement of a discrimination complaint or sexual harassment complaint and so forth.
In the military, frequently it is the base commander.
Mr. CLYBURN. Well, let me ask you this. Am I to understand that Mr. Calhoun was the EEO officer in Fayetteville?
Mr. HINCH. Right.
Mr. CLYBURN. If he were the EEO officer in Fayetteville, then the very first complaint should have immediately gone outside the agency. So they would not have to complain to him about him.
Mr. HINCH. Let me say from what I heard this morning the system did not work. When you were listening to Ms. Blumenthal, she described how the system should work. That is the way that we train and require that the system works in VA also.
Something did not happen. Many things obviously did not happen there that should have happened. They should have, when they first contacted a counselor, been given a written notice as to how long counseling would last, what the next step was, and how to secure that step in writing.
Mr. CLYBURN. So nothing happened, and so then you were saying that these people from this morning really should have gone directly to EEOC?
Mr. HINCH. No, what I am saying is at Fayetteville if the system had worked properly, they would have gotten all of the administrative remedies available to them without going to EEOC, but EEOC was built into it.
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Mr. CLYBURN. Well, from whom?
Mr. HINCH. Well, let me explain how the system works. You go to a counselor. The counselor really serves as the mediator to see if it can be resolved informally. The counselor has 30 days to do that in. At the end of 30 days unless the counselor has written permission from the complainant to extend the counseling process, the counselor must give the complainant a notice of the right to file. It says you have the right now to file a formal complaint, and it tells them how to file it and who to file it with.
They can file it at my office in Washington. They can file it with the National Director of Women's Programs.
Mr. CLYBURN. Well, that is my point. The complaint could have been filed to you after the EEO counselor, and they would not have to go to Mr. Calhoun.
Mr. HINCH. Right.
Mr. CLYBURN. Let me ask. I believe it was in 1993 when I first became aware of the situation in Atlanta.
Mr. HINCH. Yes.
Mr. CLYBURN. We talked about that in this very room, and we talked about some things, Mr. Bilirakis, that we needed to do in order to insure that people had these direct lines outside the agency.
If my memory serves me well, there was some resistance within the VA to doing that. I think Sanford Bishop joined me in that, and you all told us at that time that no Atlantas would happen again.
Now we are hearing that no Fayettevilles will happen again.
Mr. HINCH. Let me respond if I may. At that particular time I was one of the people testifying at that time, and Mr. Evans was, I think, chairing that committee.
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Mr. CLYBURN. Right.
Mr. HINCH. What the Secretary said at the time was he supported the intent of the legislation, H.R. 1032, but he really did not feel it was necessary for legislation; that he could accomplish all of those things administratively, and he was going to do so.
Mr. CLYBURN. Right.
Mr. HINCH. Shortly thereafter, Senate bill 404 also was being considered in the Senate, and the Secretary was advised at that time that it was only a matter of months before EEOC takes on the whole government-wide EEO program.
So the Secretary wrote to Chairman Montgomery at the time and said, ''In lieu of that, I do not want to go through a major reorganization in the Department of Veterans Affairs only in a few weeks later to have to hand the program over to EEOC.''
That is why we did not do it administratively at that particular time, but we were fully supportive of the intent of H.R. 1032, Senate bill 404, and we had developed a very specific administrative proposal that would have accomplished everything that was intended in H.R. 1032.
Mr. CLYBURN. So you are telling me then that all of this has been accomplished?
Mr. HINCH. I am tell you that it was— —
Mr. CLYBURN. No, your position, not your procedure. I am saying S. 404 and H.R. 1032, everything that was in S. 404 and H.R. 1032— —
Mr. HINCH. Never got off the drawing board.
Mr. CLYBURN. Because you all anticipated that a law was going to pass the Congress?
Mr. HINCH. Yes. The EEOC was going to take over the whole program. I did not anticipate it, sir. Let me tell you because I have been in this business a long time.
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Mr. CLYBURN. That is what I would think.
Mr. HINCH. And I have seen similar efforts go nowhere.
Mr. CLYBURN. Absolutely.
Mr. HINCH. But there were others who thought it would happen.
Mr. CLYBURN. And so the Secretary decided not to move because he was advised that this was going to become law.
Mr. HINCH. That this was imminent.
Mr. CLYBURN. And then in 1996, 3 years later, it still had not been done.
Mr. HINCH. That is the case.
Deputy Secretary GOBER. Mr. Clyburn, if I may, sir.
Mr. CLYBURN. Yes, sir.
Deputy Secretary GOBER. One of the reasons for the— —
Mr. CLYBURN. It is Clyburn. Let me get my name right here. There is no A in this name, sir. C-l-y.
Deputy Secretary GOBER. Well, I saw that.
Mr. CLYBURN. Y gets the sound of I.
Deputy Secretary GOBER. When I saw that earlier, I saw that, but someone called you— —
Mr. EVERETT. Did I do that?
Mr. CLYBURN. Well, Everett is my good friend. So I let him call me anything he wants to. (Laughter.)
Deputy Secretary GOBER. And like you said, I understand what you are saying. I just saw some of that snow out of the window here, too.
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Mr. EVERETT. My sincere apologizes.
Mr. CLYBURN. That is all right.
Deputy Secretary GOBER. But one of the reasons there, was a price tag attached to what the Secretary was going to do administratively, and it was about $3.5 million a year. I think the Secretary very wisely, at that point in time, thought if this law does pass that we would just be throwing $3.5 million out the window basically, and so he held off on it, and of course, the law did not pass.
Mr. CLYBURN. Well, if I remember H.R. 1032 correctly, if I may, Mr. Chairman, and Mr. Lerner is he and he really can correct me if I am wrong, I thought that what the Secretary was saying to us was that we did not need to do H.R. 1032 because he was going to do it administratively. He was going to accomplish administratively what H.R. 1032 would ask him to do.
We did not have a budget on H.R. 1032.
Mr. EVERETT. Would the gentleman yield?
Mr. CLYBURN. Yes, sir.
Mr. EVERETT. I have it underlined here in the record there where the Secretary says the department does not support H.R. 1032.
Mr. CLYBURN. Right. Yes, that is what I am saying. He did not support it.
Deputy Secretary GOBER. But that was only because he felt we would be doing it administratively.
Mr. CLYBURN. Well, I am going to close with this, Mr. Chairman.
You know, out of deference to what I said in my opening statement, I have a great deal of experience with the VA, experiences I have slept with for 35 years, but I will tell you. I think that we are here today because no one followed up on what we talked about in 1993, and I do not see any indication that anything is being done at this point to keep us from being here next year with the same kind of allegation.
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Now, I say this because I think Ms. Blumenthal indicated a figure, and I hesitate to bring this up because I was out of the room, and I apologize for that, but if you have got 8.-something percent of employees in federal agencies sitting at the VA, but you have got 14 percent of the sexual harassment complaints at the VA, something is wrong.
Mr. HINCH. I do not want to defend that, but I would like to offer a comment, please.
Mr. CLYBURN. Please.
Mr. HINCH. The VA is a distinctly different department than some of the others that we are talking about. We have over 57 percent of our work force is female. They are located throughout the whole Nation, large towns, small towns, medium size towns, isolated locations, medical centers where men and women work together very closely in very unsupervised atmospheres. So I think there are some factors that may contribute to that.
Now, I do not want to present to you that that is why those numbers are there, but I would also say to you that, overall, our figures for sexual harassment as compared to the total complaint work load we have has been going down.
Mr. CLYBURN. Well, I would suggest, and this is my final statement on this, someone testified earlier that X number of the VA complaints had been contracted out.
Mr. HINCH. About 59 percent.
Mr. CLYBURN. About 59 percent. I would suggest that one of the quickest ways to get to this is to contract out 100 percent of the complaints involving sexual harassment.
If you took these sexual harassment complaints right out of the system as soon as you got them, that would go a long way towards keeping us from being here with these kinds of things in the future.
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Would you agree that that would be a good way to deal with sexual harassment complaints? Contract them out, every single one of them. That is zero tolerance.
Mr. HINCH. I would like to resolve them before you get to the investigative stage.
Mr. CLYBURN. Well, we all would like to do that, sir, but you and I both know, and you just gave a real good reason why you cannot do that. If you have got people in isolated situations, and you are talking to the father of three daughters, and so I would like to see that happen also.
But the fact of the matter is when the complaints are brought—you see, you are not going to bring the complaints while they are being counseled—but when the complaints are brought, I am saying at that point every sexual harassment complaint ought to be contracted out, especially since the Secretary did not support H.R. 1032.
Mr. HINCH. We do not have a problem with that, and as you describe it, it is quite possible to do that. We can do that without a great deal of difficulty. It just means assigning a contractor to it rather than a collateral duty investigator.
I guess I did not understand you at first.
Mr. CLYBURN. Yes.
I am through, Mr. Chairman.
Mr. EVERETT. Thank you, Mr. Clyburn.
Mr. CLYBURN. Thank you. (Laughter.)
Mr. EVERETT. The chair now recognizes Mr. Buyer.
Mr. BUYER. Actually, you know, a few weeks ago I extended great compliment to my colleague from South Carolina for being the new Ranking Member, and on this line of questioning, I compliment it, and it reinforces my compliment to you.
Mr. CLYBURN. Thank you.
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Mr. BUYER. Part of what he is sharing with you is no different. I am going to have to go back because I am doing what Mr. Everett is doing on the sexual misconduct in the U.S. Military. This one is huge, and there are many of whom are saying, you know, there is such a problem that you need an ombudsman. You need independent commissions, and everybody is trying to do all kinds of outreach.
That is no different than Mr. Clyburn here asking for the same thing. One thing though that concerns me about that request for going outside is that we are not changing behavior. We are leaving the same bad players in the same positions taking six figure salaries, and that concerns me.
When we are talking about those employers are setting the tone of the environment for the work place, I am not so apt to leave them in the work place, and I have said publicly and I will stress it also to the VA. It is entirely acceptable for the American people to demand of the VA, the military or the federal agencies' authorities a higher standard.
You say, ''Steve, a higher standard than what you would find in Monticello, Indiana?'' Absolutely, absolutely.
So I think the gentleman's line of questioning was entirely appropriate. One thing that does concern me, and he was getting into this agreement, let me share a perspective here. I'm a country guy from the corn fields of Indiana, a country lawyer, and I try not to get lost in the high weeds, you know, that kind of thing. So I just read a document only by the four corners of the document.
So as I read the document, I look at this and say, you know, there is something here that had to have occurred, and I learn that there were three allegations, I guess, Dr. Gross, at the time that this was drafted, and if the agreement is based upon the three allegations at the time and this is then signed, if there are other allegations that occur that are outside your knowledge that were made, that being now that the testimony of Ms. Barefoot or—who else do we have?—well, there were other individuals. You can take action.
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The VA can go after this gentleman, if I can call him a gentleman. He is innocent until proven guilty, but the document, if it only refers to specific cases—as a matter of fact, this is not a very well drafted document.
Who drafted this thing? Dr. Gross, who drafted this?
Dr. GROSS. Well, the draft was a joint effort, but the personnel specialist was the primary author.
Mr. BUYER. Did the lawyers for Mr. Calhoun draft this document?
Dr. GROSS. The lawyers for Mr. Calhoun?
Mr. BUYER. Yes.
Dr. GROSS. No, they did not. They advised him in the process of negotiation, but the document itself was drafted by the human resources specialists in the VA.
Mr. BUYER. The Whatley report, what is that? Whatley?
Dr. GROSS. The Whatley report.
Mr. BUYER. Did you draft that?
Dr. GROSS. No, Mr. Whatley drafted it.
Mr. BUYER. Do you agree with that report? Are you comfortable with it?
Dr. GROSS. I do not really understand what you mean. Am I comfortable with it?
Mr. BUYER. Well, I listen to testimony. I read some statements. I think that the report itself is awfully understated and almost benign. What is your opinion of the report?
Dr. GROSS. I think the report was benign. I agree with that.
Mr. BUYER. Well, that is my opinion. What is your opinion? It is benign?
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Dr. GROSS. It is benign.
Mr. BUYER. What does it mean when you say a report is benign? My interpretation from Indiana may be different from yours.
Dr. GROSS. When I say it is benign, the report itself does not, in fact, address the issue specifically enough. It is too general. It is broad.
Mr. BUYER. All right. What then did you have to do to go beyond the report to satisfy you at a level of accountability to take action? What did you find?
Dr. GROSS. I think the report met my purposes, especially my oral outreach from Mr. Whatley, and that was he confirmed as an independent assessment that, indeed, there were hostile conditions at Fayetteville, and after the report and verbal outreach, I elected to notify Mr. Calhoun that I wanted him removed as soon as possible and started to negotiate with my superiors and headquarters to remove him as the medical center director on the basis of the hostile work environment—his management by threats and intimidations.
Mr. BUYER. You made a decision based upon what you feel was a benign report in generalities, unwilling to go into the detail, but you were satisfied that based on the report that he should be removed. All right?
Dr. GROSS. That is a combination of that report plus my own visit to the facility and talking to individuals.
Mr. BUYER. How did you feel when lawyers then told you—you are in a position of authority now, had the taxpayers' interests also at heart—and somebody tells you you cannot remove a bad actor? How did you feel about that?
Dr. GROSS. Well, no one told me I could not remove a bad actor. I could not remove a bad actor without going through the legal process and due process, et cetera.
Mr. BUYER. Right, and for some reason you were unwilling to take the case through the chain of legal events. Even though you did not know about the details, you were unwilling to take it through a chain of events, and you relied upon someone else telling you that, well, perhaps this is a case that we cannot win.
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I just share this with you. This is Hoosier perspective again. You see when I come out here to Washington, DC, I get upset because when I look out two blocks from here, I look at homes and I look at businesses that have bars on the windows, and my perspective says, you know what? The wrong people are behind bars.
Now I look at the bureaucracy, and I share the same perspective and say, you know what? There must be a real problem with the bureaucratic culture in this country if we have people of authority that are afraid to go after bad actors.
Dr. GROSS. Well, quite to the contrary, I am not afraid to go after bad actors. In fact, I was very aggressive— —
Mr. BUYER. Then please explain to us why you did not aggressively go through the legal process because now the taxpayer, because this Congress passed a Civil Rights Act that permits women to file claims under the tort law, whereby if the government, the VA, loses a case, the taxpayer has to pay. So please share with me.
Dr. GROSS. I am not sure if you—perhaps let me clarify the chronology here. At the time Mr. Whatley conducted his investigation at my request, I had already visited the Fayetteville facility and come to the conclusion that it was a very hostile work environment, but I needed an independent assessment of the management climate there.
The sexual harassment issue was not an issue at that time. This was in the summer of 1996. It was after the Whatley report, and my conversation with him and my conversation with my superiors that I elected to seek action to remove Mr. Calhoun. I was very aggressive in that regard.
He reluctantly agreed to step down as Director, and it was at that time that the OIG, who was working in collaboration with me, providing me some additional information related to the hostile work environment, that the OIG decided that they would then go in to investigate two cases of sexual harassment which they did not identify what they were to me.
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So rather than let Mr. Calhoun remain in the Director position, I sought permission from my superiors, to detail Mr. Calhoun out of the facility. My main objective was to aggressively pursue removing Mr. Calhoun at all costs, to make whole the people in that facility so that we could start to go about the business of taking care of our patients.
So there were two efforts there.
Mr. BUYER. You know, we heard some testimony here from five ladies that are very uncomfortable about the VA and their handling of these cases. Can you imagine that with all the scrutiny upon the U.S. military at the moment, that if you had a Navy captain who did something on a destroyer and they said, ''Well, let's get him off that destroyer and we'll give him a job and he's now going to command an aircraft carrier''? Do you think that would happen in the Navy?
No, it would not. So now let's shift over and say what? Are we going to treat—now they are out of the military, but now they are in the VA—we are going to treat them by different standards?
No, no, no. I think that—let me compliment the Ranking Member and Chairman for bringing this hearing, and Mr. Bilirakis. There is a real problem here with the VA. If we have got 12 senior level positions that have all now been discharged from their duties because of these allegations, that is like—is it 12? You are shaking your head.
Deputy Secretary GOBER. Nine.
Mr. BUYER. Nine? Oh, all right. Nine.
Deputy Secretary GOBER. Only two of them— —
Mr. BUYER. That's like saying nine generals. Don't go West. Pardon?
Deputy Secretary GOBER. Only two are still on active duty. The rest are retired.
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Mr. BUYER. What about the others?
Deputy Secretary GOBER. We drove them out. Some of them were driven out and retired early. Some of them took buyout. One of them took a buyout earlier. They are no longer in the service. We have two senior executives that are no longer senior executives.
They were, to use your military analogy, they received a captain's mass and not a court martial. They are still serving in the VA, but they are no longer in leadership positions.
Mr. BUYER. And you have created a position for them to protect that individual is my assessment.
Deputy Secretary GOBER. Not to protect the individual. The fact is that there was a legal process we have to go through. Our people made a judgment.
Mr. BUYER. A legal process which you chose not to go through. You gave this guy a good salary— —
Deputy Secretary GOBER. We made— —
Mr. BUYER (continuing). And a wonderful climate that I do not have in Indiana.
Deputy Secretary GOBER. Well, you know, I want to address a couple of things. There is no way that I am going to sit here, Mr. Clyburn, and promise anything like this will not happen, the reason being is that I am not a fool. Things like this happen. This is a huge organization. Things happen, and you and I both know it, that should not happen. We understand that. It should not happen, and our policy is we do not want it to happen, and we are doing everything possible.
Now, let me tell you what I think we should do from now on. When we have a situation like this happen, let's just say we have a Director in Indiana or anyplace you want to take. When we get allegations that this is happening. What we will do is we will transfer; we will detail that Director totally away, maybe into Washington, DC, and we will send a team in that will investigate, and we will get to the bottom of it so that we do not have a few allegations come forward and we find out about then and then later on you find more.
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We will do a complete investigation, do like you are talking about so that when we go forward we have got a complete package. If that individual is innocent, you know, the Constitution is a heck of an impediment, but it is a nice thing that individual has rights. If he or she is innocent we will protect them. If they are not, then we will throw the full weight of the VA against it.
But I do not want anybody to think that the VA has not made progress because that is patently untrue.
Mr. BUYER. And, Mr. Chairman, I guess my understanding is that the Secretary will be dispatching one of these teams to investigate the new allegations against Mr. Calhoun.
Deputy Secretary GOBER. What I will have to do is—again, I am not an attorney—but I will consult with my attorneys. If there is a way that we can do that, we will but I do not know if there is a double jeopardy problem. My folks are very capable of advising me, and we will do whatever the law says we can do. We will also respect the rights of individuals.
Mr. EVERETT. Thank you.
The chair now recognizes Mr. Evans.
Mr. EVANS. Thank you, Mr. Chairman.
You know, Hershel, I know you have worked hard on this, and as we said in our introductory statements, we have no personal problem with the attempts of you and Jesse Brown to move ahead with zero tolerance, but 5 years ago our former colleague, Jill Long, Congresswoman from Indiana, concluded after the hearing was done that the VA sexual harassment policy essentially boiled down to this:
''If you are sexually harassed, you get demoted, but if you are the harasser, you get transferred, and the taxpayers support your defense as well as your salary.''
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Now, one of these women came forward today saying that it was very uncomfortable for her to sit in this committee room and talk about these issues. Obviously it was tough for all of these women, but if they could help one woman deal with the problems that she is facing in the VA, it would have been worthwhile.
Our duty, and I know you will never get 100 percent, is to do 99 to 100 percent if at all possible, and I guess the message we are sending out listening to Ms. Keener for a second, is that he did not get off Scot free in the case of Mr. Calhoun because he was demoted from the senior management status, and it was good to know that women in Buffalo and Fayetteville are now off the hook, but I guess women in Bay Pines had better be on guard.
And my question is you have failed to mention that the provision that allows Mr. Calhoun in this settlement to be considered for reentry in the SES in 3 years. How could you explain that, given his past record?
Deputy Secretary GOBER. He is barred for 3 years for reentry.
Mr. EVANS. Okay. But so do we— —
Deputy Secretary GOBER. Why would we consider letting him reenter?
Mr. EVANS. Right.
Deputy Secretary GOBER. Well, you know, and again, I am not an attorney, but I would say in layman terms, he has not been convicted of anything. You would hope that a person—you know, part of the VA is rehab. I would say this. This gentleman, Mr. Calhoun, lives in a fish bowl. His SES status, leaving the SES status, he has not gotten off Scot free, and contrary to what we have heard about him receiving an increase, a pay raise, he did not do that. He got a cost-of-living adjustment like every other employee in the government gets. We did not give him an increase of pay.
But the point is I guess your question, Congressman Evans, is how could you ever reconsider this person. Well, you know, hopefully—should I say anything more?
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Mr. HINCH. Hershel, could I say something to that?
Deputy Secretary GOBER. Very little.
Mr. HINCH. Okay. Mr. Evans, actually if we had not put that provision in there, he could have reapplied to readmission to SES at any time.
Mr. EVANS. You cannot bar that?
Mr. HINCH. That is what this does. This means that he cannot really apply for readmission for 3 years. Without that he would have been able to.
Now, understand we do not determine his readmission to SES. That is controlled by the Office of Personnel Management. That is who he would apply to. That provision in the agreement really bars him from applying before 3 years.
Deputy Secretary GOBER. So really this is a plus for us. It is something that we got.
Mr. EVANS. But you know, I do not see it as a permanent punishment. I do not understand all of the parts of the SES. Basically if he can reapply, he can regain that status after 3 years is the way I read it.
Deputy Secretary GOBER. He can reapply. He has no automatic reinstatement, and he has to go through the whole procedure again. As Mr. Hinch said, if we had not had that in there, he could have reapplied the next day.
Mr. EVANS. Is the standard now in these kinds of agreements, something to that effect at least? And why couldn't we have barred him for 10 years or for the rest of his career?
Mr. HINCH. It may have been possible. I do not know if that would have been a break point on the settlement negotiations. I was not there.
You know, again, I understand your concern, Mr. Evans. I would just make the observation that with all that has transpired unless his rehabilitation is really stellar and so apparent, his reapplying is going to be a very difficult task.
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Dr. MORAVEC. May I make an effort to add to that, please?
Mr. EVANS. Yes.
Dr. MORAVEC. It seems that we have a common understanding here that it was important to get Mr. Calhoun out of that environment so that these ladies and others would not have to deal with that on a day-to-day basis. What we were concerned about as we talked about this is to get the greatest amount of assurance that we would be successful in getting him out of that environment, and as we went through it and as information evolved and discussions occurred, there was some question about whether we could prevail in sustaining removal.
That precipitated the need for some dialogue with him and his attorneys in trying to move towards a settlement. The settlement maybe could have been better. It seemed to us that he was very adamant, as I understand it, about the dollars apparently due to his circumstance, whatever it was. We were looking for a way to free the environment of what we have heard about as a person who had behavior that was certainly destructive or counterproductive, and we succeeded in that.
Maybe if we could do it all over, maybe we could do it better, but we did succeed in that one single mission, if you will, that everyone seems to agree was the right thing to do: get him out of that environment.
Mr. EVANS. Well, I do not think we are going to stop this conduct until it is punished and viewed as a punishment by women who have been abused, and somehow they have got to have some input into this process because I understand not a single one of them has been consulted by the VA when this agreement was drafted for any kind of consultation or any kind of input; is that correct?
Dr. MORAVEC. Yes, I am certain it is correct. It would be a very unusual process to involve people who were in process, in some kind of a legal or a procedure such as EEO, and I do not believe that happens in any case that I am aware of, whether it is a grievance or an EEO, or sexual harassment complaint. I do not believe it does.
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Mr. EVANS. All right, Mr. Chairman. Thank you. I yield back my time.
Mr. EVERETT. Thank you, Mr. Evans. Mr. Bilirakis.
Mr. BILIRAKIS. Thank you, Mr. Chairman.
Well, no one has to convince me of the concern for veterans or veterans' rights that Secretary Gober holds and certainly Secretary Brown. He was what, Executive Director, I guess it was, of the DAV for many years. That is how we knew him, and Hershel goes way back as far as veterans' rights are concerned.
And I will tell you I really misjudge you if you are not sitting there damned uncomfortable, Hershel. You have got to be uncomfortable.
You know, we have got to look at this overall picture. We are concerned about the rights of these ladies, the rights of others who have been taken advantage of, but we also have to take a look at this from the eyes of the veteran, the grassroots veteran out there.
I mean the people that I have heard from. You have an awful lot of friends out there in the veterans community. You are bound to have heard from them, and I doubt very much that any explanation that we have heard here today from you or any of the others in this panel is something that would be anywhere near acceptable to those veterans.
Golly, you said things happen. You are right. It is an agency with 240,000 people. It is just like, you know, some may ask us, ''Hey, you guys are the Veterans' Affairs Committee. Why didn't you know this was going on?''
Well, one might unfairly ask you the same thing, I suppose, because how in the world can you possibly know everything that is going on. So, yes, things happen, and you refused to, rightly so, refused to commit to the fact it will not happen again.
But I will tell you something. If I were a bad actor or a potential bad actor and I wanted for whatever reason to get out of my job with the Department of Veterans Affairs, a high position with the Department of Veterans Affairs, and I had something else in line or wanted to retire and go fishing or whatever the case may be, depending, of course, on my character, I might decide I am going to do something like this because I know damned well that I am going to be able to sit down and negotiate something out. I am going to probably get a buyout. I am going to be moved to a place that I want to go to all along anyhow, Florida or whatever the case may be.
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And the trouble is that we are not just talking about one instance here. One of our local newspapers, the St. Petersburg Times, which has done a fantastic job on this issue, reported, and I would ask unanimous consent to admit this into the record.
Mr. EVERETT. Without objection.
Mr. BILIRAKIS. It is an April 14 article by David Dahl.
Mr. EVERETT. Without objection, so ordered.
[The attachment appears on p. 153.]
Mr. BILIRAKIS. And I might just paraphrase that. He reported that a VA doctor in a VA medical center in Maine made advances towards a VA nurse while on a business trip. A federal jury said the doctor's behavior had created a hostile work place and recommended a $375,000 award.
I am assuming that $375,000, Mr. Clyburn and Dr. Snyder, is probably going to come out of the VA out of the taxpayers because it is a $375,000 award.
Despite the department's zero tolerance policy, and again, I do not fault that; I said that in my opening statements. I gave credit to Secretary Brown because I really believe he intends zero tolerance.
But in any case, despite it, the doctor received a 1-week suspension, a 1-week suspension, and was allowed to keep his $123,161 a year salary. The doctor appears to have received a very lenient punishment.
Is there any veteran out there, Mr. Secretary, who would not consider that a much too lenient punishment? The nurse has been transferred to another VA job and awaits a judge's ruling and the jury recommendation, and the comments from the nurse was, ''The way they handled it was to punish the victim,'' and I am just leaving her name out for the moment. ''I was a dialysis nurse for 20 years, and because of something he did, I was forced to leave a profession.''
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So you have the Clyburn situation. You have this situation.
Another report in the same newspaper, another highly paid former VA medical center Director was transferred to Bay Pines previously. It seems as though Florida is the dumping ground for all of the VA's management problems. I would like to think without any reflection on Minnesota or North Dakota that if we are going to be dumping somebody, for crying out loud, it ought to be in those areas in the winter rather than St. Petersburg, FL. (Laughter.)
And so you can see now. I cannot believe that this does not really bug you all, and it is not just what happened. It is not just that you did not put into place the administrative procedures that you had indicated to us you were going to put into place in 1993, but it is these punishments.
Where are our guts? Whatever happened? I mean a lot of you guys are veterans. Maybe all of you are, and where are our guts that we are going to allow ourselves to create this type of a precedent which would encourage this kind of conduct. It certainly does not discourage it. It encourages it.
GS–14, you indicated for Mr. Clyburn. I understand the top level of a GS–14 salary is $81,000 a year, and he is making $106,000 a year. So I mean he certainly has not been hurt as far as that is concerned.
So, comments: First of all, I think it is important that maybe you might provide us with more information regarding the case that I just mentioned to you. Are you familiar with the case that I am referring to with the Maine doctor? I can give you the name if you want.
Ms. KEENER. I am very familiar with that case, Mr. Bilirakis. That case is currently on appeal, and there is extensive information on that case that I think you would be interested in looking at in some detail. I would be happy to share that with you.
Mr. BILIRAKIS. So it is being appealed by the doctor; is that correct?
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Ms. KEENER. Yes, sir, and we would be happy to share the details on that case with you.
Mr. EVERETT. If you would make that available to the committee, I would appreciate it.
Ms. KEENER. Yes, sir.
Mr. BILIRAKIS. Is there any reason why Florida is the recipient of so many of these personnel transfers?
Deputy Secretary GOBER. No, sir, that is not planned, even though Florida is a beautiful state. That is not planned at all.
And let me say this, and you are right, Congressman. I sit here. I am glad to be here, sitting here because I am as outraged as you are. Secretary Brown is as outraged as you are. So believe it or not, I am very comfortable sitting here because I know I am talking to people that really care. We all care about the same thing. We are not playing who shot John. We are wanting to get to the bottom and try to find a way to improve it.
I hate to hear people say that we punish the victim, and I know in all too many cases it has appeared to be that. It has looked like that. It looks like that we have just transferred the ''good ol' boys'' from here to there.
One of the things, we have had a discussion here this week, and we have talked many, many hours about transferring problems. When we first got here, I said I do not like transferring problems. If a person is a bad actor in one place, he or she will be a bad actor in another place. Let's take care of our problems. Let's bite the bullet.
And of course, I was new to the Federal Government. I did not realize you had all of these laws that keep you from doing certain things, but that is not an excuse. There has got to be a way we can do it.
We will work with the committee on any way we can, and I will assure you that if I had one thing that I could do today, it would be to reassure all of the women, the women that work for the VA out there and all of the women veterans, everybody, this policy is still in effect, and when we go out and do our investigation with the teams we will send out from now on, you know, we will go right to the very bottom of the barrel and find out what is going on, and then a decision will be made on discipline.
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We have got to stop it. Secretary Brown is committed to it. I am committed to it, and we will continue to work to make this zero tolerance work.
Will we ever solve it? Negative, but we will make a positive step.
Mr. BILIRAKIS. Well, I appreciate that. I think you know that I do, but as long as we do not try to not reward, and I am going to use that term because it is a ''dad-blasted'' reward. I do not care.
Dr. Moravec, and I appreciate your response to my inquiry, and I introduced that letter dated April 9, 1997, as part of the record, but Dr. Moravec responded to me in a very nice manner, but you know, he basically refers and accents as you did the key facts remain, and Mr. Calhoun has been removed from a leadership position, et cetera, et cetera, et cetera, trying to make it seem like the punishments fit the crime, if you will, and when I say the crime, I mean in this sense.
And as long as we continue to do that and do not take one of these particular cases, with all due respect to your General Counsel, and take them up all the way through the process to see whether the Civil Service law actually prevents this sort of thing taking place. I mean, I realize what it says and you came aboard and you were not aware of all these laws that we in our stupidity maybe passed and made that tough where you cannot really transfer a person. I cannot believe you cannot transfer a person from one VA medical center to another.
Deputy Secretary GOBER. Oh, yes sir, we can.
Mr. BILIRAKIS. Well, you can. I know you can.
Deputy Secretary GOBER. Yes sir, we can.
Mr. BILIRAKIS. I was not sure why you could not transfer him, but you would have had to transfer him as a Medical Director; is that right?
Deputy Secretary GOBER. Without an agreement, without an agreement or going to court.
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Mr. BILIRAKIS. In other words, if he does a bad job, let's say it was not sexual harassment.
Deputy Secretary GOBER. We have to prove a case. He has his rights, but absolutely you could do it.
Mr. BILIRAKIS. Yes, sure, he has his rights.
Deputy Secretary GOBER. My fear was, and the fear of VHA was, that if they—as with any case—you have to look at it because if you lose that case at MSPB, then they come back on you. He could have gotten almost any job he wanted, certainly reinstated, maybe all attorney fees paid and maybe even a cash settlement.
Mr. BILIRAKIS. Yes, but in a case like this, it seems to be not at all a marginal situation.
Mr. EVERETT. Would the gentleman yield?
Mr. BILIRAKIS. It seems to me that you could have used this as a pretty darn good test case.
Yes, sir.
Mr. EVERETT. Will you yield, please?
Mr. BILIRAKIS. My time is up anyway, sir.
Mr. EVERETT. Well, then since we are on this subject, before I got to Vic let me just ask you directly. Is it not the situation that under the terms of the settlement Mr. Calhoun can reenter at a senior level, at a management level, in 3 years?
Deputy Secretary GOBER. No, sir, not automatically. He can apply to reenter.
Mr. EVERETT. He can apply.
Deputy Secretary GOBER. But, sir, I would like to point out, as was pointed out here earlier, that without that stipulation in the agreement—and that is something he gave up—the very next day he could have applied for reentry.
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Mr. EVERETT. Thank you for that clarification.
Vic, again.
Mr. SNYDER. Thank you, Mr. Chairman. I appreciate it.
Several questions here. I guess, again, I think our intent is to look for things that we need to be doing. You all are looking for things you need to be doing, and we are looking for things that we need to be doing through statute.
In terms of some of the administrative things, if I could ask Dr. Gross a question, I have got your letter here of December 6th of 1996, and it is to Mr. Calhoun, in which you say, ''The letter of proposed adverse action issued to you, dated October 24, 1996, is hereby rescinded. The letter was issued prior to the completion of the evidence file,'' and then you send out this letter December 6 encouraging an informal settlement.
What happened between October 24 and December 6? Did you get different legal advice?
Dr. GROSS. I was collaborating with legal counsel throughout the process, but the advice that I had erred procedural-wise was in issuing the original letter of removal which prompted me to write the letter of rescission.
Mr. SNYDER. So the first letter was a procedural problem?
Dr. GROSS. A procedural problem that I was— —
Mr. SNYDER. But it seems that early on you made the decision to terminate apparently and informed him of that.
Dr. GROSS. I made two decisions. There were three phases. The first phase was in the summer before the investigation. I wanted to remove Mr. Calhoun, abated until the IG report was finished. When it was finished, I then proceeded to undertake removal action because, quite frankly, from the report I was livid.
Mr. SNYDER. Right.
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Dr. GROSS. The sexual harassment component was new.
After I issued the letter of removal, the attorney for Mr. Calhoun requested an evidence file, which was not available and which, subsequently, I understand should have been attached as a part of that removal letter. That was one procedural error.
The second procedural error brought to my attention was that I did not have the delegation of authority to— —
Mr. SNYDER. Let me interrupt you if you do not mind. I think you have answered that part of the question.
The other part of the letter that concerned me, and I just bring it up because in terms of what things that we all ought to have in mind when we are going through these kinds of messy situations.
In your letter in there, I guess you are encouraging Mr. Calhoun to cut a deal, and you say, ''Formal action will bring further embarrassment to you, the Fayetteville Medical Center, and to the Department of Veterans Affairs,'' and I hope that embarrassment is not going to be a criteria within the Department of Veterans Affairs.
I mean Hershel knows where I live. I live a few blocks from the VA over there in Little Rock, and you know, it does not have blood vessels. It does not flush red when something goes wrong.
I mean these women have certainly been embarrassed. I do not think they would have been embarrassed to have him terminated. I suspect all of the people who have worked with him, if I believe everything I have seen here today, would not have been embarrassed in Fayetteville to have him fired.
The people that Mr. Clyburn met with at the social event would not have been embarrassed. They probably would have been relieved to have him terminated, figuring he would move on down the road.
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So I hope embarrassment is not a criteria that we have there, and maybe it was just something you put in the letter to encourage him to make the move.
I want to ask in terms, Mr. Gober, of the fox in the henhouse. Now, as I understand it, you have made two changes; is that correct? One of them is if there is sexual harassment charges or bad conduct charges regarding a senior level, that there will be a panel that comes out from Washington. Is that accurate?
Deputy Secretary GOBER. That is correct. When we have allegations from a medical center against a Director, Associate Director, Chief of Staff—high level people—we will send out a team to investigate. Then when the report comes in recommending disciplinary action, after this report is done, it goes to the VHA, and they will make a recommendation which comes to the Secretary's office and will be reviewed by senior officials to make sure it is appropriate.
Mr. SNYDER. What was the date of that new policy? Are we talking a month ago or 6 months ago?
Deputy Secretary GOBER. Well, actually we— —
Mr. SNYDER. Or this is going to be next month?
Deputy Secretary GOBER. No, we have already implemented the policy back in March.
Mr. SNYDER. Okay. A month ago.
Deputy Secretary GOBER. And another thing, if I could very quickly. I think that procedurally, you know, we could sit here and argue there were a few things procedurally done wrong on this investigation.
Mr. SNYDER. If we could move on, I understand.
Ms. KEENER. Mr. Snyder, we have already sent a team out in one situation.
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Mr. SNYDER. It is underway.
Ms. KEENER. So not only has the policy been implemented, but we already have had a team out on a recent situation.
Mr. SNYDER. I have got you.
And again, the issue that you have already alluded to, the constraints that you have, maybe that is something that we all need to look at. You had, by your Inspector General, you had a lying, abusing sexual harasser that you thought created a very hostile work environment, so much so that Dr. Gross was livid about it, and yet you are telling us that the laws are such that he cannot be reassigned.
I mean I do not want any response today, but that to me is a problem.
Deputy Secretary GOBER. Oh, no.
Mr. SNYDER. If the President does not like you, Mr. Gober, you are back to Arkansas, and we all know it. They will not send you back to Florida. They will send you to Arkansas with me. So we may need to work on this.
Deputy Secretary GOBER. Maybe there is one more slot down there, but the point is we can move. We can move directors. You know, we can transfer all the time. However, you get into a real situation if you start doing it for a disciplinary reason.
If we have a situation where we may have a director that we want to move somewhere else, we can do that.
Mr. SNYDER. But that is the problem, isn't it? At some level of management, at some level of senior management, I would think that you would just say, ''Hey, we want to move Joe, and, Joe, I am not going to tell you why. You are moved.''
Deputy Secretary GOBER. Oh, we can do that, but we did not want to move this individual to a management position. If he is a hospital director and we do not have disciplinary action against that person and we move him, you assume you are going to move him into a hospital director position or a higher level position.
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Mr. SNYDER. I have got you.
Deputy Secretary GOBER. Otherwise you are disciplining him.
Mr. SNYDER. And the issue of the fact that nobody sat down with the complainants and discussed the plea bargain arrangement, for want of a better term, I guess, Ms. Keener, maybe there would have been a lot less uproar over this if each of the people that had complained would have heard the outline of the settlement.
Ms. Force seemed to think that she understood where you were coming from on that. I am not sure I see the problem. Is that one of the lessons learned from this, that maybe that would be helpful or not?
Ms. KEENER. It is not that I do not agree with you, Mr. Snyder, but I am really not the appropriate person to discuss this question because the role that the General Counsel's office plays in these kinds of complaints is really minimal. We only provide counsel. We have no real authority or responsibility in these cases.
Mr. SNYDER. I thought I heard somebody— —
Ms. KEENER. That would probably come under the auspices of the personnel folks, not General Counsel.
Mr. SNYDER. All right.
Ms. KEENER. So I will refer that to— —
Mr. SNYDER. I heard some expression of some legal concerns about that. Maybe Dr. Moravec said that would be some legal concerns to sit down, but at some point I would think that you would be giving the complainant a little bit of say over what would your recommendation be, Ms. Complainant. Would you want us to go ahead and push this case knowing it may be overturned and we could terminate him, or if you could substantiate it?
I do not mean an unsubstantiated, but you are shaking your head, Hershel.
Deputy Secretary GOBER. I think that is something that would have to be dealt with very carefully because, you know, 240,000 people cannot manage this organization.
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Mr. SNYDER. I am not saying get a sign-off.
Deputy Secretary GOBER. Your concern is a good one. When we get to the point, and this is something we can look at. We can discuss if it is appropriate, if we should involve them more, and on what situations. When we have a clear-cut case, obviously it would be, you know, something that we would consider.
Of course, we have a clear-cut case, and I assure you we will not back off.
Mr. SNYDER. Yes. Ms. Keener, or whoever, the issue, again, looking for lessons learned, you are talking about the VA's responsibility to defend any future legal action which I guess would be a peculiar situation since you all may be defending Mr. Calhoun against our first bank of witnesses next month.
Is that something that is affected by the failure to seek termination? If you had gone through the process and fired Mr. Calhoun, do you still have to defend him or do you lose your obligation to defend him in the future if you fired him because he was a lying, abusing sexual harasser?
Ms. KEENER. It is my understanding, and I will stand corrected by my staff, but if he is found guilty of sexual harassment, we do not have to defend him.
Mr. SNYDER. If he had been terminated for those charges.
Ms. KEENER. That is correct.
Mr. SNYDER. So that is something that needs to be balanced in the equation, doesn't it, because you are now obligated to defend by your own count nine people, retirees and reassignments?
Mr. Gober, and this is my last question, are there other things that you have learned from this, I mean, other things that have not come up here today that we need to be thinking about?
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Deputy Secretary GOBER. Well, I think I have learned I am going to stay a heck of a lot more involved in it at the high level, and I think it is important because we have to send a message.
Secretary Brown and I have been very, very involved.
Mr. SNYDER. But in terms of how Congress may need to respond in terms of statutory change or things that we need to do to help you all, either help or obligate you all to do things differently.
Deputy Secretary GOBER. We are going to do some of the new things that I mentioned earlier, and we are totally open to advice and will be pleased to work with anybody that has an idea and we'll explore if we have to do something. We have got to make sure that our people know that the zero tolerance is not just a buzz word. It is not something we are just sitting here mouthing about. It is something we really believe.
And, again, I am going to go back. I am going to disagree with the figures. I think that the fact that we have 14.1 percent people coming forward shows, I hope, that our people understand they do not have to be afraid anymore.
We have these cases. I know there still are not many of them, but I want them to come forward. I want them to come forward and bring these cases.
Mr. SNYDER. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you, Vic.
I understand, again, that we may have a vote in about 20 minutes. I am going to close out this panel with the remark that I know the committee members have additional questions for the panel, and we will submit those to you.
And let me say, Mr. Secretary, that I do not really believe that this matter has been adequately investigated and addressed by VA to this date. Ms. Barefoot was not interviewed by the IG. Ms. Moore-Russell has not been interviewed by anybody in VA management or IG. We have to ask how many other Ms. Moores are out there. Nobody knows.
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I have been told though there are a number of EEO complaints in Fayetteville still pending against Mr. Calhoun, and reading over the terms of the agreement and on advice from staff counsel, I am advised that nothing would preclude the VA from pressing additional or bringing additional charges against Mr. Calhoun if the results of those EEO investigations determine that those charges ought to be brought.
And I would ask you to report back to this committee on all charges, and I understand that there may be well more than 20 pending against Mr. Calhoun and what action has been taken.
I think that we need to get to the bottom of what happened at Fayetteville quickly. I think it is to the benefit of the Congress and the VA, the people at Fayetteville, and the taxpayers. I do not believe and I know you do not believe that those five ladies up here were lying or have an overactive imagination. We cannot make the final determinations at this hearing, but the VA has a process to do that and should use them.
I also believe that VA should begin to voluntarily take steps to identify and help anyone, including these five ladies here today, who has been injured or hurt by the situation at Fayetteville. You heard them say that they had not been contacted by VA at all, and I appreciate your remarks and the fact that you said that pained you.
These ladies need to be contacted and made as whole as possible, these and any other that have been injured by this former Director at VA.
As I say, what I am talking about goes far beyond just advising them to get a good lawyer, and I see you nodding in agreement, and I hope you understand what I am talking about.
Finally, Mr. Secretary, please give the subcommittee a comprehensive report 45 days from now on what the VA has done to further investigate and address those matters at Fayetteville raised by this hearing. I hope you will do that.
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The subcommittee will hold a follow-up hearing after it has your report and the results of the VA sexual harassment survey.
I want to again thank you for coming. I appreciate your candor. As I said, we have had other discussions, and I have always enjoyed meeting with you. I know that sometimes we have to discuss very hard and frank issues, but I do appreciate you always being there when I call for you to come.
We will dismiss this panel at this time.
Deputy Secretary GOBER. Thank you, sir. On behalf of the VA staff here, I appreciate the candor that we shared, and I want to just reemphasize that we want everyone to know, particularly our employees out there that we are still on their side.
Mr. EVERETT. Thank you, Mr. Secretary.
Mr. MERRIMAN. Mr. Chairman, with your permission, I would ask some of my staff to join me today.
Mr. EVERETT. Absolutely, and, Mr. Merriman, you are Deputy Inspector General. If you would introduce your staff, I would appreciate it.
Mr. MERRIMAN. Yes, sir.
On my left I have Mr. Jack Kroll, Assistant Inspector General. On my right I have Ms. Maureen Regan, my counsel. Mr. Bennett is part of her staff, and Ms. Shelly, Judy Shelly, is staff to Mr. Jack Kroll.
Mr. EVERETT. Thank you.
And if you will at this time, please, I would like to swear the panel in.
[Witnesses sworn.]
Mr. EVERETT. Thank you.
I would ask that we confine the statements to yours, Mr. Merriman.
Mr. MERRIMAN. Yes, sir.
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Mr. EVERETT. And that you be as brief as possible, and we will submit the entire statement or other statements for the record.
STATEMENT OF WILLIAM T. MERRIMAN, DEPUTY INSPECTOR GENERAL, DEPARTMENT OF VETERANS AFFAIRS ACCOMPANIED BY JACK KROLL, ASSISTANT INSPECTOR GENERAL; MAUREEN REGAN, COUNSEL; MICHAEL BENNETT, OFFICE OF COUNSEL; AND JUDY SHELLY, OFFICE OF THE ASSISTANT INSPECTOR GENERAL
STATEMENT OF WILLIAM T. MERRIMAN
Mr. MERRIMAN. Yes, sir. Mr. Chairman and members of the committee, I am pleased to be here today.
With your permission, I would like to enter my prepared statement for the record and use this opportunity to summarize some of the work my office has done with respect to sexual harassment in the Department of Veterans Affairs.
Mr. EVERETT. So ordered.
Mr. MERRIMAN. I would like to start by saying that the Office of the Inspector General takes the issue of sexual harassment very seriously, and allegations involving sexual harassment brought to our attention are pursued vigorously.
Our first major investigation of sexual harassment complaints against senior VA managers was in 1992 at the VA Medical Center in Atlanta. We found sexual harassment by top managers and systemic problems that deterred female employees from reporting allegations of sexual harassment.
VA took swift corrective action on the systemic problems and replaced the medical center's top three managers.
In March of 1993, we completed a comprehensive audit of VA's EEO Program, with emphasis on sexual harassment and made several recommendations for improving the overall program. While there have been delays in implementing some of the recommendations, full implementation is anticipated in the near future.
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It is important to point out that because there are other channels for reviewing allegations of sexual harassment, such as VA's formal EEO process, the number of cases reviewed by the IG is low. For example, of the 3,029 hotline cases opened by my office during the past 5 years, only 29 were related to sexual harassment.
An analysis of the 29 cases indicates that senior managers were involved in five of the cases. The most publicized of the five cases involved the former Director of the VA Medical Center, Fayetteville. Our review determined that the former Director sexually harassed one of the three women who made allegations against him.
While we determined there was insufficient evidence to support a finding that he sexually harassed the other two female employees, we did conclude that the former Director's behavior towards them was abusive, threatening, and inappropriate.
A November 1996 report recommended that appropriate administrative action be taken against the Director for sexual harassment and for his pattern of inappropriate behavior. We were informed that the former Fayetteville Director was downgraded and transferred to a GS–14 nonsupervisory position at the VA Medical Center in Bay Pines, FL, and that he was allowed to retain his SES pay.
Questions have been raised as to whether the punishment was appropriate. The IG was not involved in the decision relating to the penalty imposed on the former Director. In accordance with standard practice in the Inspector General community, we do not recommend specific punishments.
The decision whether to take administrative action and the action to be taken is vested in the deciding management official. Disciplinary action is a management responsibility. Because the IG is independent of VA management, it is important that the line between management and oversight be respected.
Another important reason why the IG does not recommend specific disciplinary actions is that management officials making such decisions must consider the Douglas factors, which are beyond the scope of our review.
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These factors include such things as the employee's length of service, past disciplinary record, severity of misconduct, grade level, penalties imposed for similar behavior, and other potential mitigating circumstances.
The IG function is to determine whether the allegations are true or not. Consideration of the Douglas factors is part of the analysis that management officials are required to undertake when presented with proof of misconduct. The recommendation of specific penalty of misconduct needs to be the result of this two-part process.
Recently Secretary Brown testified that he will review all administrative actions involving senior VA officials. This will help insure consistency and fairness in deciding appropriate administrative actions.
Secretary Brown has also made it clear that the department's policy on sexual harassment is zero tolerance and that it is the responsibility of every employee to establish a work environment that is free from sexual harassment and other forms of discrimination.
To heighten employee awareness, VA has taken a number of important steps in recent years, including requiring every VA employee to complete EEO training.
Thank you, Mr. Chairman, for this opportunity to comment on the work of the IG in this important area. I would be pleased to respond to your questions and those of the committee.
[The prepared statement of Mr. Merriman appears on p. 208.]
Mr. EVERETT. Thank you very much, and we appreciate you being here today.
In regards to Fayetteville, what were you asked to investigate and by whom?
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Mr. MERRIMAN. We received allegations from Senator Faircloth, I believe it was, from a complainant that talked in terms of an abusive atmosphere at Fayetteville. We called the VISN Director and found that they were aware of some of these complaints and had planned a visit to Fayetteville.
In talking to some of the staff provided by the complainant, we came across a sexual harassment complaint by one of the individuals.
Subsequently problems of a sexual nature were provided to the VISN Director that he gave us. We agreed to go and look at the sexual harassment allegations at Fayetteville. The VISN would take a look at the other areas of alleged misconduct.
Mr. EVERETT. Did you make any recommendations regarding any need for additional investigations at Fayetteville?
Mr. MERRIMAN. No, we did not. Mr. Whatley, of course, was going to look into that.
Mr. EVERETT. Were you asked to investigate whether additional instances of sexual harassment or misconduct had occurred, other than the three cases you discussed in your report?
Mr. MERRIMAN. No. No, sir.
Mr. EVERETT. Does the IG have information about any other instances of sexual harassment or other conduct by Mr. Calhoun?
Mr. MERRIMAN. No. No, sir, not today.
Mr. EVERETT. If you are made aware of that, you can investigate further?
Mr. MERRIMAN. Sure, we could look at it further.
Mr. EVERETT. Did you interview Susan Odom, who also worked in the Director's executive suite?
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Mr. MERRIMAN. Pardon me, sir?
Mr. EVERETT. Did you interview Susan Odom who also worked—
Mr. KROLL. No, we did not.
Mr. EVERETT. Any particular reason you did not interview her?
Mr. MERRIMAN. She was not directly involved in the sexual harassment allegations that we were reviewing. She was not brought up as a witness in any of the statements.
Mr. EVERETT. In Case No. 3, you indicated that it was her word against his. Isn't that commonplace in sexual harassment cases because harassers do not typically do it in front of witnesses? And does that mean you cannot substantiate a sexual harassment case based on the word of a woman?
Mr. MERRIMAN. Go ahead.
Ms. REGAN. That is often true that it is one person's word against the other, and what we had looked at in the evidence was whether or not there was any corroborating testimony, not necessarily from somebody who observed it, but from somebody who they complained to at or about the same time.
I believe in the case where we did find sexual harassment, one of the things we looked at was who this person had complained to, and those people corroborated that this person had complained to them, but otherwise you are left with something happened, and it is just one person's word against another, and there is nothing to substantiate it or corroborate it.
What we did find, which we thought was just as egregious, was the abusive conduct.
Mr. EVERETT. Thank you.
Did you interview Clint Norton, Rosanna Morris, Wilson Canteen, or Corine Cook?
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Mr. MERRIMAN. No, sir.
Mr. EVERETT. And the reason would be?
Ms. SHELLY. I did talk to Rosanna Morris by telephone briefly, and it was just after I had gone through her documentation of her EEO complaint. I had a question on one small section of it.
Mr. EVERETT. I am sorry. Who?
Ms. SHELLY. Rosanna Morris.
Mr. EVERETT. Rosanna Morris. Okay, and the others, I assume no one asked you to interview them or you did not determine that they had anything directly to do with the case?
Ms. SHELLY. That is correct.
Mr. EVERETT. Okay, and you did not pursue anything with Ms. Morris?
Ms. SHELLY. No, I did not.
Mr. KROLL. No, sir, but she had an EEO complaint, and normally we would defer to the EEO process. The IG would not jump in the middle of that process.
Mr. EVERETT. Those are all of my questions. I am going to turn it over to our Ranking Member, Mr. Clyburn.
Mr. CLYBURN. Thank you, Mr. Chairman.
Susan Odom, didn't that name come up earlier? You said you did not have any allegations about her directly. Her name did not come to you from one of the complainants?
Mr. KROLL. There was no allegation of sexual harassment. She was involved in some of the other allegations that were being reviewed. These allegations were really more in the area that Mr. Whatley was reviewing, the misconduct, mismanagement.
Mr. CLYBURN. Well, maybe this has changed. My understanding of the sexual harassment guidelines that were handed down some years ago, that if a party is benefitting in the work place from giving or providing sexual favors, another party who feels that he or she is not being allowed to participate similarly can, in fact, bring a sexual harassment complaint. Am I correct?
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Mr. KROLL. Yes.
Ms. REGAN. Yes.
Mr. CLYBURN. I am correct?
Mr. KROLL. Yes, sir.
Ms. REGAN. Yes, sir.
Mr. CLYBURN. Okay. So if I am correct then, and one of the parties who brought this complaint, I think, testified earlier that she spoke with Mr. Calhoun about his involvement with Ms. Odom, you do not think that would have given you some basis to go talk to her?
Mr. MERRIMAN. From what I have heard today, I wish we would have talked to Ms. Odom.
Mr. CLYBURN. I wish you had, too, sir.
Mr. MERRIMAN. Undoubtedly we were focused on the three individuals and what happened to them and what could be corroborated with respect to their circumstances. Given it to do all over again, I would have filled in that gap. I regret that we did not.
Mr. CLYBURN. Well, I am sorry you did not also, but I think, if my memory serves me well, that is a part of sexual harassment that has been around for ten or 15 years, and it would seem to me that that is something you should look at pretty quickly, especially in circumstances such as what we have heard here today.
I am interested in what is going to happen with these other complaints. Now, I am hearing that there are some complaints still pending in Fayetteville regarding Mr. Calhoun. Now, that is what I have heard. Is that correct?
Mr. MERRIMAN. EEO.
Mr. CLYBURN. There are some EEO complaints in Fayetteville?
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Ms. SHELLY. Yes.
Mr. CLYBURN. Okay. This settlement agreement, which I am having some real problems with, I do not understand how you entered into a settlement agreement without involving the people on whose behalf the settlements are being reached, and I am told that this was done without their input at all, but that has been done.
But that is a settlement regarding those people who have gone on before these people who are still sitting in Fayetteville.
Mr. MERRIMAN. That is correct.
Mr. CLYBURN. So then if the complaints still in Fayetteville were to move to some official investigation, then irrespective of what this agreement is, the instrument that we have all seen here today that is in the record, irrespective of that, we are talking about a new ball game, are we not?
Ms. REGAN. You may or may not be talking about a new ball game. One of the problems is that action was taken, and the individual was taken out of the Senior Executive Service. Now, whether or not you would go back and have new conduct charges based on conduct a while ago, you might be facing the same problem before the Merit System Protection Board on whether or not they would sustain a removal.
Mr. CLYBURN. Oh, you might be, and you might not be.
Ms. REGAN. And you may or may not be depending on what happens with it.
Mr. CLYBURN. Absolutely.
Ms. REGAN. But I do think that you do have a problem with the time element if this person is not misperforming after being taken out of the SES, whether or not, having read a lot of MSPB cases on this issue, they would actually remove him from service because of that.
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I mean it is a risk, and until all of the cases are in and the evidence is looked at, I do not think anybody can make a decision whether or not there is enough there to go forward with a removal action.
Mr. CLYBURN. Well, I did not say remove him.
Ms. REGAN. Well, one of the problems you have with the Senior Executive Service position, which is what he was in when these events occurred, I think one of the things Mr. Snyder said a couple of times is whether or not there are legal impediments. You only really have two choices for a disciplinary action against a member of the Senior Executive Service. One is a suspension greater than 14 days, and the other is removal. You do not have a lot in between.
The only way you can get a person out of the Senior Executive Service is for a performance based action, and even then there are some save pay provisions included in that. There is nothing in between to get this person out of a management position.
Having read a lot of the cases on sexual harassment and misconduct, you have to go back to the Douglas factors, and part of the testimony today, I think, from Ms. Caruana was that some of this behavior did not occur when Mr. Calhoun had a supervisor. That testimony would be considered by MSPB under the Douglas factors.
There are a lot of things that have to play into this, but I honestly think that if MSPB was faced with removal in this circumstance, they may not sustain it. You could end up with a 90-day suspension, which seems to be what they give out most of the time.
Mr. CLYBURN. Well, I understand. I think I understand all of that, but let me go to the policy. Do all of you believe that the people throughout the VA hospital system are aware of the zero tolerance policy and understand it?
Mr. MERRIMAN. I suspect that they are aware that there is a zero tolerance policy. At least there must be a high percentage of them who would be. The Secretary has made it a major issue.
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And quite early on, just having everybody go through the training, they should be aware that that is his policy.
Mr. CLYBURN. Now, we heard testimony here today from one lady who said she had no understanding that the so-called training was available to anybody other than supervisors. So it was obvious she did not go through the training.
Mr. MERRIMAN. That is true, but I would think the majority of the individuals have been through the training.
Mr. CLYBURN. It seems to me it would be up to the VA's management to make sure that everybody is exposed to the training, right?
Mr. MERRIMAN. That is correct.
Mr. CLYBURN. And do you think that is being done? That is being done?
Mr. MERRIMAN. I think they take it very seriously. In our organization, we have gone through great pains to make sure our people are participating in the training, and from what I have observed, I would be surprised if there were facilities out there that did not comply with the Secretary's directive on that.
Mr. CLYBURN. How many witnesses did you all talk to?
Mr. KROLL. At least 20.
Mr. CLYBURN. At least 20. Now, these witnesses, tell me a little bit about how you came to these witnesses. Just one thing led to another? How did you get to these witnesses?
Mr. KROLL. That was part of it, sir. Part of it came from the original complainant. The original allegations that came in from Senator Faircloth from this complainant were very general. There was allegations of misconduct and abuse with no specifics.
We were able to go back through the Senator's office to the original complainant, and that person was able to provide us some names of individuals that we could talk to, and then one thing just led to another from there.
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Mr. CLYBURN. So the complaints that you were acting on had nothing to do with the EEO complaints that were being acted on separate and apart which were filed and may have been going through the administrative process?
Mr. KROLL. Right, and in fact, if there is an active, ongoing EEO investigation, we would generally shy away from that case because we would let the EEO process handle the complaint.
Mr. CLYBURN. So then you focus on what we would call bad management kinds of procedures rather than the sexual harassment?
Mr. MERRIMAN. No. The VISN was supposed to focus on the bad management. The reason we really got involved was we saw three individuals who had not filed EEO cases, may had missed their time frames, and we might be the only ones who could bring some reconciliation to it. So we went after it because it was sexual harassment and complaints had not been filed through the formal process.
Mr. CLYBURN. May I ask you before my time is up are there any other sexual harassment complaints being looked into right now by the IG's Office separate and apart from this Fayetteville?
Mr. MERRIMAN. Yes.
Mr. CLYBURN. You do have others?
Mr. KROLL. Outside Fayetteville.
Mr. CLYBURN. Yes, sir.
Mr. KROLL. Yes, sir. We have reported in our testimony that we had two ongoing cases.
Mr. CLYBURN. Two ongoing cases. Now, have these cases been subjected to that so-called team—what was it we heard earlier? Has a team been sent in?
Mr. KROLL. The process that Deputy Secretary Gober described was an agency process, one that he would establish for the complaints that came through the management chain. On complaints that come through the IG chain, we would send our own team in to investigate.
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Mr. CLYBURN. Well, why would a sexual harassment come to the IG?
Mr. KROLL. We have an IG hotline, and we get thousands of calls on that hotline.
Mr. CLYBURN. So if you get a sexual harassment complaint on the hotline, you would not go to the agency and see that they go through the regular procedure?
Mr. MERRIMAN. The first place we would check is if it is in the EEO chain, and if it is already being investigated by the EEO process, we would shy away from that.
Mr. CLYBURN. Well, suppose it is not.
Mr. MERRIMAN. Well, there is a second process. It could be one of the administrative review teams that Deputy Secretary Gober described. If it is being reviewed, we also would shy away from it. We would open an oversight case just to oversee the results of it, but we would not investigate it.
But if there was no other ongoing investigation, then we would do it, particularly where it involves a senior official. Here, in this case, the Director is the EEO officer also for that facility.
Mr. CLYBURN. I guess what I am trying to get to here, Mr. Chairman, it would seem to me that especially in this Fayetteville case where the perpetrator was, in fact, the EEO officer who was, in fact, the head of the agency, it would seem to me that the IG Office, if I understand, and maybe I do not know what the IG Office's duties and responsibilities are, would be there to preserve the integrity of the VA irrespective of who is in charge of what.
Mr. MERRIMAN. Yes, sir.
Mr. CLYBURN. Well, then if that is true, it would seem to me that you would be looking at whether or not a proper response was made by management to the allegation in the first place.
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Mr. MERRIMAN. To Fayetteville?
Mr. CLYBURN. No, no, no. Whether or not management makes the proper response to the allegations of sexual harassment in the first place.
Mr. MERRIMAN. For all sexual harassment?
Mr. CLYBURN. For all sexual harassment no matter where it comes from. The Inspector General, it seems to me, ought to be seeing whether or not all of this stuff happens the way it should happen and will not be guided by whether or not the person has to be the manager or not.
Mr. MERRIMAN. That is, in fact, what we did in terms of Atlanta.
Now, when we went down to Atlanta and we found a major problem there, we felt the whole process was broken. That is why we did a VA-wide audit of the EEO process, which led to the zero tolerance policy.
Mr. CLYBURN. Right.
Mr. MERRIMAN. Okay. Now, I have seen that the Secretary seems to be serious about it. He has got a lot of pronouncements out. They are going through this training. We are not getting a lot of spillover sexual harassment complaints on our hotline. I have not seen the need to go out and look at the whole process again.
I do not think that we can put ourselves into the management chain and review each EEO complaint that is looked at by management to look at it ourselves.
Mr. CLYBURN. No, sir, I am not asking you to review all of them. I am asking you whether or not you will review those. You were in here this morning earlier when the five ladies talked?
Mr. MERRIMAN. Yes, sir.
Mr. CLYBURN. All five of them said that they have no faith in the process.
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Mr. MERRIMAN. Correct.
Mr. CLYBURN. Now, some kind of way we have got to put some faith in this process on behalf of our employees. So I guess I am asking you what steps then do you take from the IG's Office to let people know that there is, in fact, a hotline and that you can, in fact, dial up this hotline and what kind of a response you can expect to get from it.
It would seem to me that some of these people here today would have used the hotline knowing full well that the guy that is causing this problem is the EEO officer.
Mr. MERRIMAN. He is the Director, right.
Mr. CLYBURN. He is Director of the agency and the EEO officer. Did any of them use the hotline?
Mr. EVERETT. Let me conclude. Mr. Clyburn's time is out.
Mr. CLYBURN. Oh, yes.
Mr. EVERETT. And I ask unanimous consent that he be given additional time. (Laughter.)
Mr. CLYBURN. Okay. Thank you.
Mr. MERRIMAN. The hotline is well publicized, for starters. Now, certainly where you have the problem is where the head of the facility is the EEO officer and he has corrupted the system.
Mr. CLYBURN. Absolutely.
Mr. MERRIMAN. Okay. Now, I am aware of two instances of that. One was Atlanta; the other was Fayetteville, and one way or another we have gotten into them.
I cannot disprove a negative. I cannot say there is not some other one out there that is like that. I guess perhaps a protection would be when the Secretary goes out with additional information on this, he can say that if your problem is with the head of the facility, you can, in fact, go to the OIG hotline. More publicity along those lines could help with that.
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Mr. CLYBURN. Well, in pursuing these kinds of investigations, would it not be a proper act of the IG's Office to make recommendations to the Secretary as to what ought to be done to prevent anymore Atlantas and anymore Fayettevilles?
Mr. MERRIMAN. Certainly, yes, and Deputy Secretary Gober has asked us to provide him with input based upon the problems with Fayetteville as to how we think the process can work.
Mr. CLYBURN. Let me ask you what you think about this practice that the VA has, a practice, I might add, that I have a real problem with, that we spoke of back in 1993 when we were trying to get H.R. 1032 passed, a practice of making the head of the agency the EEO officer.
What do you think about that?
Mr. MERRIMAN. Well, it has the advantage of having a person in the position to take some action. That is a plus, I suppose.
Mr. CLYBURN. Well, tell us about the disadvantages and the minuses.
Mr. MERRIMAN. The disadvantage is if that person goes sour. Then your whole process at the facility is damaged.
Mr. CLYBURN. Well, would it not also be the same case if that person is standing there with a sword over everybody's neck?
Ms. REGAN. That is the problem, is when the individual who is the discriminator or the alleged discriminating official is, in fact, the head of the group that you are in, the Director of a Regional Office.
But one of the things that maybe they need to look at is the process because the informal process within the hospital is mandatory under the EEO laws. Maybe there needs to be a way that the VA, and probably other agencies, have a route to go if that person is the problem. In other words, somebody at headquarters that will take those complaints, something to that effect. We can probably look into that.
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Mr. CLYBURN. Would you be willing to say to the Secretary that he ought to take another look at H.R. 1032? It is not too late for us. It may not have the same number, but we certainly can have the same law.
Mr. MERRIMAN. He certainly could take another look at it. I do not have a position on it one way or another myself. I am not that familiar with it, sir.
Mr. CLYBURN. Would you say that something needs to be done to set up a process, a formal process, that people will have some faith and confidence in?
It doesn't bother you that all of these people say they have got no faith in the process?
Mr. MERRIMAN. Well, certainly it bothers me. I would hope that when you see the results of their survey that they have put out, based upon a GAO report where they went out to 30,000 people, you will have a better idea of across the board in the department what the faith in the system is.
If that is giving you indications like you have heard today, then obviously there is a major problem. If it is giving you a high level of confidence in the EEO process, maybe it would give you— —
Mr. CLYBURN. Well, let me ask you about that process. When those come in, you get the results by center?
Mr. MERRIMAN. The department contracted with a private contractor to get that information. Is it by center?
Mr. KROLL. We do not really know. The agency has not released the final report.
Mr. CLYBURN. I am going to end here, Mr. Chairman, but I think we ought to ask the Secretary to make sure that we get those results by center. I do not want them to come up and give us—you said 20,000?
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Mr. MERRIMAN. They went out 30,000 individuals.
Mr. CLYBURN. Thirty. You have 30,000 individuals in one lump sum. You could still have two very rotten centers out there that may get smothered by all the good centers in that report.
I will want to see that report center by center if it is going to do us any good.
Thank you, Mr. Chairman.
Mr. EVERETT. Thank you.
One of the things that my colleague is pointing here to is the fact that even with a new situation that is described by the Secretary to us, we see a disconnect, and we do not know how you overcome that disconnect. We see ways around or ways for the department heads or Directors to halt the situation, stop the situation from going any further.
So I appreciate the line of questions there, and I will go to our ever patient Mr. Snyder. Thank you.
Mr. CLYBURN. I am sorry.
Mr. SNYDER. Thank you, Mr. Chairman.
We have been here since 9:30. We all get rewards for patience, correct? (Laughter.)
I just have a few questions. Now, I assume that this is your report, the Office of the Inspector General, and your language, this paragraph that you heard me read earlier in which you concluded that he was abusive, threatening, inappropriate, and less than truthful, a specific question I had. I mean basically what you are saying is he lied to you.
Mr. MERRIMAN. That is correct.
Mr. SNYDER. Does that not put him in a new category somewhere? I mean it is one thing for me to come to you and you investigate me and I say, ''Yeah, I really did grab her breast at the Christmas party. I am sorry. It was stupid. I had been drinking.'' It is another when a lies, looks you directly in the eye, and you know it is factually correct that he lied to you.
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Mr. MERRIMAN. Well, it never comes out quite like that. He does not remember something that has happened. You talk to somebody else. You go back to him, and that triggers his memory, and now he recalls the results of it.
It enters into the credibility determination that we go through as to whether we are going to believe his testimony or not, and that was a major part in the report.
Mr. SNYDER. You had a fairly strong statement here, I thought. I mean less than truthful.
Mr. MERRIMAN. Yes.
Mr. SNYDER. I mean, I suspect you think he lied to you.
Ms. BENNETT. I think the key example of that was when Ms. Force testified that she had been banned from the building. The Director denied making that statement, and other people corroborated her version that she was, in fact, denied from the building, and that is a pretty strange order to come from the Director.
Mr. SNYDER. Yes, yes.
Ms. REGAN. Sir, are you suggesting that there should be additional charges?
Mr. SNYDER. In answer to your question, if someone lies to you, does that put it in a different category?
Ms. REGAN. Are you suggesting there would be additional charges for lying?
Mr. SNYDER. Potentially. I mean we talked about a rehab. program. I mean Mr. Gober. Part of the rehab. is, I think, fessing up, and so we now have reassigned a person that you all in your hearts believe lied to you.
Ms. REGAN. One of the problems, I think, and there are some recent federal court cases, is that you cannot take disciplinary action for lying if you are lying about the charges against you. There are a couple of federal court cases on that, and they are somewhat recent. One is a VA case.
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There used to be a policy in the VA that you could be charged for lying during an investigation, but if you are the one being charged, you are allowed to lie basically, and you cannot be charged with it.
Mr. SNYDER. Well, maybe that is something we need to look at.
Mr. EVERETT. Would the gentleman yield?
Mr. SNYDER. Mr. Clyburn, help me out. Oh, help me, help me.
Mr. EVERETT. Would the gentleman yield a moment?
Mr. SNYDER. Oh, yes, sir.
Mr. EVERETT. I am interested in this line of questioning.
Mr. SNYDER. I am, too.
Mr. EVERETT. I mean, it is a federal offense to make false statements; is that correct?
Ms. REGAN. That is what we think.
Mr. EVERETT. False official statements.
Mr. MERRIMAN. That is right.
Mr. EVERETT. And are you saying that you can make a civil agreement that would not allow those statements to be prosecuted?
Ms. REGAN. I am saying that in those cases where they have charged an employee who lied during an official investigation about charges against that employee, they are not allowed to bring those charges. The court has said it is unconstitutional.
Basically, just to summarize, you are allowed to lie about charges against yourself. That is what they have said.
Mr. EVERETT. Let me ask you to respond directly to what I am asking. Can you make a civil agreement, such as this document that was made with Mr. Calhoun, that precludes charging him with the crime of making false official statements?
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Ms. REGAN. I do not know the answer to that. I am not sure it would be an agreement.
Mr. EVERETT. Thank you.
Mr. SNYDER. He means in the agreement that we have here that allows him to be transferred to Florida and wait for 3 years before coming back into the system. He is saying can you put that into this kind of a document.
Mr. EVERETT. This is a civil document.
Ms. REGAN. You mean a settlement agreement? You could put it in a settlement agreement, yes.
Mr. EVERETT. Would that preclude him from being prosecuted from making false official statements? You said he lied.
Ms. REGAN. Well, I guess I have a problem because I do not think you can prosecute him for making those statements. You could put it in the agreement or not put it in the agreement. I just do not think the agency can charge him with it or anybody could prosecute him.
Mr. EVERETT. Mr. Snyder, I appreciate you allowing me to interrupt.
Mr. SNYDER. No, that is fine.
On that line, Mr. Merriman, I think it would be helpful to us if you all would have your legal folks do an analysis for us as to why because that impacts on the work you do.
Mr. MERRIMAN. Yes, sir, certainly.
Mr. SNYDER. I mean wouldn't you much rather go in and say, ''Mr. Snyder, you have been accused of outrageous behavior at the Christmas party, and I need to inform you that if you do not tell me the truth you can be prosecuted as a felony under federal law for giving false statements to a federal employee or federal investigative office''? I mean I think that would be helpful to you. It would certainly be helpful, I would think, with these things.
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With regard to the Douglas factors, which I thought that was an old actor, but I guess that is Douglas Fairbanks, and I guess this is not your bailiwick since you are the inspection angle of it, but you did the only discussion of it today.
But I notice that one of the factors is previous penalties for similar offenses.
Mr. MERRIMAN. Yes.
Mr. SNYDER. So we now have by the statement of the vets folks, we have nine, I think, that have retired or resigned. So I guess number ten comes along, and we actually try to terminate him. Part of that argument is going to be: wait. The previous nine, they got the buyout and retire. They were reassigned to Florida. They only tried to terminate one.
I mean am I understanding?
Mr. MERRIMAN. I think they said they retired or resigned.
Mr. SNYDER. Yes.
Mr. MERRIMAN. As opposed to reassigned.
Mr. SNYDER. Yes.
Mr. MERRIMAN. I do not see why that would affect it.
Mr. SNYDER. Since they did not actually— —
Mr. MERRIMAN. They were not penalized per se. So I do not think that would set a precedent.
Mr. SNYDER. Okay. That may be something to look at.
The incident with the woman at the Christmas party where she was actually grabbed, I think, Mr. Clyburn, you might help me out. That is pretty close to a misdemeanor crime. How do you all respond when you run across incidents, and I do not think that was a woman that you talked to.
Mr. MERRIMAN. No, sir.
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Mr. SNYDER. But when you hit things that are, let's say, clearly criminal, even maybe at the misdemeanor level, how do you respond to that? Do you call attention? Do you flag that this may well have been a violation of federal law?
Help me with that.
Mr. MERRIMAN. Yes. We have criminal investigators ourselves, but even on the administrative side if we come across the criminal issue, we can take it to the U.S. Attorney's Office ourselves, and we probably have examples where we have done that.
Ms. REGAN. Yes. We would get the criminal matter resolved, whether or not it was going to be prosecuted or whether there was enough evidence to prosecute it before we issue a report. We have done that in other reports.
Mr. SNYDER. So if you run across and you say, ''Wait. This is not sexual harassment. This was sexual battery or a rape,'' you would feel comfortable taking it on yourself to give one report to the VA and a separate, different report?
Mr. MERRIMAN. To the U.S. Attorney.
Mr. SNYDER. To the U.S. Attorney. You would not pass that on to the VA and say, ''You all need to make a decision about whether you pass to the U.S. Attorney''?
Mr. MERRIMAN. No.
Mr. SNYDER. You do that totally separate.
Mr. MERRIMAN. That would be us, yes, sir.
Ms. REGAN. The IG Act gives us that responsibility.
Mr. SNYDER. You are kind of the ombudsman for that.
Mr. BENNETT. The Inspector General Act requires that if we have reasonable belief that a crime has been committed, we have to inform the Attorney General or the local U.S. Attorney's Office.
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Mr. SNYDER. Okay, and then I guess my last question, Mr. Merriman, to you or to everyone is more just kind of we are real big on morale in the military and morale at the VA. I mean just reading your Paragraph 2 there where you have concluded that he was abusive, threatening, inappropriate, and lied to you, I mean, how is your morale to find out that somebody like that is now making 100-and some thousand dollars in Florida? Is that what you all thought was going to happen?
Mr. MERRIMAN. Well— —
Mr. SNYDER. I mean, do you feel good about that with all the work you did?
Mr. MERRIMAN. No, I do not feel good about it.
Mr. SNYDER. You thought you had a pretty strong case, I think.
Mr. MERRIMAN. I know we had a strong case. What we would have liked to have seen done was our work, along with the work of Whatley or if that was too shallow they could have gone out with another administrative group, put together the strongest charge they had and make a decision as to whether or not they could get removal.
Now, there is a risk involved. If they tried for it and they failed, then perhaps it would be mitigated to a 90-day suspension, and you heard what their concerns were.
Mr. SNYDER. That is why I come back to talking to the women about making a run at it because I think that like Ms. Force seemed like she was comfortable with, okay, that was good; get him out of administration. I would think there would be occasions when you get the women together and say, ''We are willing to take that chance.''
Mr. MERRIMAN. Sometimes.
Mr. SNYDER. ''We have got to terminate this son-of-a-gun.'' But you do not ask them. I mean, I think that gives you as the administrator a sense of kind of the outrage, which will kind of help you weigh.
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I mean I am just rambling on now.
Mr. MERRIMAN. Well, sometimes it is better to take the shot even if you do not succeed. Having taken the shot might be more conducive to the department than the loss.
Mr. SNYDER. At least you know that your administrator or whoever it is came to you, sought your opinion, and when you said, ''Yeah, let's go for it,'' they stood with you and said, ''You know, we may not make this one,'' but they stood with you.
Thank you, Mr. Chairman.
Mr. EVERETT. I appreciate that line of questioning, and I would like to associate myself with it. Any time you go to court there is a chance, and I think at Fayetteville, we missed a great opportunity to rid the system of somebody who should not be in the system.
Mr. MERRIMAN. Yes, sir.
Mr. EVERETT. I thank this panel for its appearance here today, and I will now at this time dismiss you.
We are going to take a 2 or 3-minute break, and we will come back to this panel in just a second.
[Recess.]
Mr. EVERETT. Thank you for appearing here today. I would like to recognize Dr. Miller, President of the Nurses Organization of Veterans Affairs; Mr. Berry Jordan, National President of the Federal Managers Association; Ms. Kitty Peddicord, Women's Director of AFGE; and Ms. Nelms, President of the Federally Employed Women, Inc.
Thank you, and if you would proceed with your statements, and I would urge you to please be brief, and that we will submit your entire statements into the record.
Thank you, ladies and gentleman, and Ms. Nelms, if you would please start.
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STATEMENT OF DOROTHY NELMS, PRESIDENT, FEDERALLY EMPLOYED WOMEN, INC.
Ms. NELMS. Good afternoon, Chairman Everett and distinguished members of the subcommittee.
First, we thank you for the opportunity to appear before you today. We have our written statement submitted, and having listened to all of the previous panels, I will probably just give you an overview and not go into all that is in our written statement today in the interest of time.
Mr. EVERETT. Thank you so much.
Ms. NELMS. Federally Employed Women is a national organization of workers of the Federal Government and designed specifically to eliminate sex discrimination. Of all the areas of sex discrimination, we think sexual harassment is probably the most pervasive and the one that does most to set back the careers and aspirations of women in the Federal Government.
As an organization, we have done a lot to fight against sex discrimination. When Chairman Everett mentioned a while ago deja vu, I had an even deeper sense of deja vu because I testified as President of FEW back in 1979, when Congressman Hanley of New York had the first subcommittee hearing on sexual harassment, and so I find it astounding that I am here almost 20 years later, and some of the same issues are surfacing around an issue like sexual harassment. So it is really amazing how things happen like that.
When you think about all of the things that have happened in terms of sexual harassment; that we finally have a law in place, (it has been determined that it is illegal under Title VII of the civil rights law); we have got policies written by most agencies; and almost all agencies have engaged in training about sexual harassment. It is really unbelievable that sexual harassment continues.
Even according to the latest survey by the Merit Systems Protection Board, the amount of sexual harassment of women is about 45 percent, and it is about 20-some percent of men in the Federal Government.
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You look at an organization like the Department of Veterans Affairs that has done all of these things. They know the law. They have a zero tolerance policy. They had mandatory training of 4 hours for everybody in the VA, and yet you continue to hear from GAO, the IG, and from others about the level of sexual harassment in the VA. What is it going to take to change this situation?
There are a couple of things that I would like to talk about: first, the impact on women. When you look at the women that spoke this morning, I do not think anybody in here could not help feeling a pang in their hearts about what they had been through in terms of the agonies of sexual harassment and abusive treatment on the job. The detrimental effect on their careers, on their personal lives, probably on their spouses or significant others, if they even had them, is unimaginable in terms of looking at the effects of sexual harassment.
The Department of Veterans Affairs has an additional responsibility because they administer to the needs of veterans. There are almost 400,000 women veterans, and with the amount of sexual harassment and assault in the military, there are a number of those women veterans who are women who will be seeking help from the VA. With stories like this about the sexual harassment in the VA, could they possibly have a level of satisfaction that their needs would be ministered to satisfactorily?
I heard one of the officials from the VA say that they knew how this would appear to people; that is, the handling of Mr. Calhoun's case. It would give the appearance that perhaps they, the VA did not really care about sexual harassment, and that perhaps the policy was not significant. The officials said it almost like an afterthought. But that is one of the most important things about a policy in an organization: that people have faith that the policy is meant; that people have faith that the organization will carry out what they say in the policy.
And when employees in an organization see what looks like a distinct action that is so contradictory to the policy, they lose all faith in the system, and when you talk about the number of complaints in an organization, it is directly related to how free people feel to file a complaint and whether or not they feel their complaint will be handled in a responsive manner.
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When you also hear comments by GAO about some of the reasons the VA disallowed complaints, included many that were disallowed on technical grounds. That means they have lost all thought of what the intent of the law was on equal opportunity, and the courts went to great effort to make sure that there were very few technical disallowances of discrimination cases. The intent was to get to the substance of the cases, and so when you have these technical disallowances, people never have a chance on the substance of the cases.
There are specific guidelines on how long it should take you to process a case, and it looks like they were overlooked. Again, another message is sent out to employees.
So our concern is for the employees of the Department of Veterans Affairs who probably feel as lost and lonely as the women that testified here this morning that they are in an organization that just does not seem to honor its own policy, does not seem to care about the impact on their own employees about sexual harassment.
We are sincerely hoping that this subcommittee hearing will bring some of these things more closely to the forefront and that some definitive action will be taken about those employees and those women veterans who look to the Department of Veterans Affairs for their services.
[The prepared statement of Ms. Nelms appears on p. 218.]
Mr. EVERETT. Thank you very much for those words. Dr. Miller.
STATEMENT OF MAURA FARRELL MILLER, Ph.D., ARNP, CS, PRESIDENT, NURSES ORGANIZATION OF VETERANS AFFAIRS
Dr. MILLER. Thank you for inviting me, Mr. Chairman and members of the subcommittee.
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I am proud to say I am from Florida, and I am an advanced practice nurse from that state, a state that holds in high esteem the profession of nursing and the veteran patients that we care for.
As President of the Nurses Organization of Veterans Affairs, I am pleased to present this testimony on behalf of all professional nurses involved with the veteran patient. I speak for our membership and for the more than 40,000 VA nurses. I also speak as a woman representing thousands of other professional women employed by the DVA.
My sympathies to the women who have testified here.
To date NOVA has not received any official reports of cases of alleged sexual harassment of subordinates by senior managements within DVA, including the one discussed today, Mr. Calhoun. NOVA is a professional organization, not a labor union or a collective bargaining group, and we do not handle day-to-day cases of alleged sexual harassment or any other issues that need to be referred to the local level.
In the event that a registered nurse reported such an incident, NOVA would refer that nurse back to her medical center to report the incident at the local level.
NOVA applauds Secretary Jesse Brown for his zero tolerance policy on sexual harassment in the work place, and we support the DVA policy that prevention and reporting of sexual harassment is every employee's responsibility.
In my preparation for this testimony I called Dr. Nancy Valentine, the chief consultant of the Nursing Strategic Health Group at DVA headquarters. Dr. Valentine has also informed me that to date there have been no reported incidents of sexual harassment regarding DVA professional nurses.
Now, this might be explained in several ways. The lack of reported incidents of sexual harassment at VA headquarters could be due to the fact that EEO counselors have informed me that they try to make every attempt to resolve such issues at the local level, and therefore, such reports do not make it to the headquarters level.
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Another explanation could be that incidents of sexual harassment involving registered professional nurses are not being reported at all and also not being reported to VA headquarters due to the sensitive nature and fear of the personal or professional consequences resulting from nurses reporting such incidents.
Experts acknowledge that only a fraction of those who are sexually abused ever report it. However, the total absence of reported instances of sexual harassment involving VA professional nurses is contrary to data that has been cited in the literature. I will not go into it at length. It is included in my testimony.
Preventing and reporting sexual harassment is every DVA nurse's responsibility. The total absence of reported incidences involving DVA nurses could be a symptom of other problems and maybe reflective of what is going on in the agency as a result of health care reorganization. For its very survival, the downsizing and subsequent health care reorganization has forced professional men and women to compete for a shrinking pool of health care resources and positions of power and authority at an intensity never before seen in the history of DVA.
As a female professional nurse working in a historically male, physician dominated, paternalistic health care system, NOVA suggests that incidences such as these be used as catalysts for positive change. Further dialogue is needed on this and other perceived problems to make the DVA a healthier work place and the employer of choice for registered professional nurses.
As the DVA health care system evolves and reorganizes, NOVA encourages the DVA to use opportunities, such as these, to bring attention to women's issues in the work place, to use more women in solving problems within the agency, and open up executive health care management positions to all genders and disciplines.
I would like to thank my legislative co-chairs Barbara Zicafoose and Dr. Sara Myers for their assistance in writing this testimony, and I would like all of my oral statements included as part of the official record, if you would please.
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Mr. EVERETT. Without objection.
Dr. MILLER. And I am open for questions.
[The prepared statement of Dr. Miller appears on p. 227.]
Mr. EVERETT. We are going to continue down the panel at this time.
Ms. Peddicord, if you will give your statement, please.
STATEMENT OF KITTY PEDDICORD, WOMEN'S DIRECTOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Ms. PEDDICORD. Good afternoon, Mr. Chairman and members of the committee. I also would like to thank you for this opportunity to testify before you today on this very important subject.
As has been discussed today, the VA has announced a zero tolerance regarding sexual harassment. Secretary Brown has repeatedly acted to turn around the previously accepted view that allegations of sexual harassment will merely meet the ''good ol' boy'' system of cover-up, denial and frustration.
For instance, the VA now requires all employees to be trained regarding sexual harassment, although what we have missed today is that in sexual harassment training is merely training identifying what is and is not sexual harassment. It does not include training on the EEO process or what avenues are available to employees who are victims of sexual harassment. I think that is a very important point. We are talking about everybody being trained. That is true to an extent.
And this kind of training of all employees is not routine within the Federal Government or in the private sector, and we do believe that this is a good way to start.
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However, incidents of sexual harassment have continued, and it may even be true that the nature of the VA itself, the culture contributes to the problem of sexual harassment.
What I am referring to is the fact that VA facilities operate independently. It is a very important point. Each Director has control of that facility and the EEO process, and it provides a work place where the ready mixture of a male dominated management over a female dominated work force primarily in the nursing section and around-the-clock staffing may, in fact, contribute to the problem.
However, when we called a number of our locals in the VA to find out about how sexual harassment has been dealt with, what we are finding is when it comes to bargaining unit employees, employees covered by a union, that are non-managers and non-confidential employees, that reports of sexual harassment are being dealt with immediately. There are reassignments by the harasser, and we are not finding the same problem with bargaining unit employees that we have seen described today.
There seems to be a difference the way lower management officials are being dealt with compared to higher level management. This is of particular concern to us, that high level managers seem to benefit from some sort of favorable treatment in the agency's response to sexual harassment.
We know for a fact that with a typical worker, there would not be all of this discussion about whether or not you should or should not do something. They would be fired immediately. Fire them now; we will litigate later. And what would happen is if the agency lost, if that case went to arbitration or to the EEOC, the remedy would be back pay. The person is going to get paid either way if they lose.
You know, send the message that it is not tolerated. Then find out whether or not the case will hold up in court. At least that is how it is treated at the lower level, obviously not at the higher level.
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So there really does not seem to be any valid reason why Directors or high level officials are treated any differently than those at the lower level. It is for this reason that we will remain vigilant on the issue of sexual harassment and other forms of unlawful discrimination in the VA, even under the present more concerned VA administration.
Two other observations from today's witnesses should be noted. First, it is often the fact that the most abused cases of ongoing, festering, unresolved sexual harassment occur between managers and other managers or non-bargaining unit employees. Why? Simply because union members have a process available to them for a quick remedy, namely, the grievance-arbitration process.
Under the AFGE contract, union employees, members of the union, can go through the grievance process and get a remedy within months rather than years under the current EEO process. This is a sharp contradiction, a sharp contrast between the two processes.
In the agency EEO process, they investigate themselves. This is not just a problem within the VA. It is federal sector-wide. I want to be very clear on that. It is not just a problem that we see within the VA. We see this everywhere.
And having someone investigate themselves is not actually the best way to get the most accurate assessment, and while they are investigating themselves, the employee is the victim or can be the victim of additional harassment and reprisal, which continues to deplete their ability to work, be productive, and continue.
The second observation, and before I end there, while these abuses occur, it is important for us to emphasize the value of union representation in this adversarial process is equal to the union's value in our partnership process, which are two different processes.
The second observation is our firm belief that the series of sexual harassment practices attributed to senior level management is merely reflective of other serious failings in management capabilities. The Director's total arrogance of power that affects many other employment related decisions, the VA's total lack of checks and balances are serious, serious problems.
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I will conclude by saying we intend to remain vigilant. It is our intent, and attached to our testimony we plan on studying the VA internal EEO process, sexual harassment, and discrimination charges based upon race and gender within the VA. AFGE will be more than happy once this study is concluded to share our results with the committee.
I would just suggest that when the VA is surveying itself, employees may be a little reluctant to be quite as honest.
Thank you very much for your time.
[The prepared statement of Ms. Peddicord, with attachments, appears on p. 231.]
Mr. EVERETT. Thank you, Ms. Peddicord. Mr. Jordan.
STATEMENT OF BERRY D. JORDAN, NATIONAL PRESIDENT, FEDERAL MANAGERS ASSOCIATION
Mr. JORDAN. Good afternoon, Mr. Chairman and members of the subcommittee.
I am President of the Federal Managers Association, FMA, Zone 4, Southeastern United States, and also chair of the Professional Development Committee and the Federal Management Institute, which is the educational arm of the association.
On behalf of the 200,000 managers and supervisors in the Federal Government whose interests are represented by FMA, I would like to thank you for holding this important hearing and for allowing us to present our views on this very important subject.
Today we heard extensive testimony about sexual harassment. We believe sexual harassment to be costly in time, effort, morale, disruptive to the work force, the family, and the American public cannot afford the negative consequences of it.
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FMA believes our existing anti-discrimination laws provide a good framework, but enforcement efforts are not what they should be. We believe in order to stamp out or eliminate discrimination of any kind, the efforts must start at the top of the organization.
FMA believes that when discrimination is taken seriously at the top, every level of the organization follows suit. FMA believes that each manager must be held accountable. The commitment must be demonstrated by the head of the organization.
FMA believes that sexual harassment is wrong, that if the employer finds that sexual harassment did occur, that corrective action should be taken with the aim or purpose to deter any future acts of harassment.
We believe that zero tolerance should not just be an empty phrase. Failure to act by an agency after evidence shows harassment did occur subordinates the spirit and intent of the law. FMA supports making sure that every employee from file clerk to political appointee knows the law on sexual harassment in very clear terms and the disciplinary measures that may be used for those who violate the agency's anti-discrimination or harassment laws.
In FMA's view, the experiences, we believe, that are hallmarks in promises and practices of successful EEO operations can be summed up thusly. A sound EEO Program's mission should be to resolve EEO complaints at the lowest possible level and in a timely manner. Program ownership should rest under the agency's head. A properly trained chief EEO counselor should be given authority to manage the program and then be accountable.
EEO counselors should be selected and trained to advise employees and managers on EEO matters, to conduct limited fact finding, and be neutral in attempts to resolve employee concerns.
EEO programs should be structured to identify problem areas in the agency and report to senior leadership for review and action the results of those problems identified.
Implementation of an aggressive EEO education program should include some type of alternative dispute resolution method. An automated tracking system of EEO complaints should be established. Key managers should be briefed on EEO complaints quarterly. We believe pamphlets and a brochure should be developed and distributed to the work force outlining the steps in the EEO process, including the pre-complaint and complaint stages.
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We believe that specific information, such as how to file a complaint and who to file that complaint with, should be on official bulletin boards throughout the agency.
Periodic complainant surveys should be developed and distributed to the work force to let the agency know how the complainants' needs are being met. Monthly reports to directors highlight departmental EEO activities should be provided for review and action. Quarterly EEO meetings chaired by senior management officials and attended by agency heads should be implemented for an agency-wide perspective of the EEO activity.
Chief EEO counselors should analyze report data and provide results to senior level management for review and action. As is currently the practice in DOD, agencies should establish partnerships between themselves and an independent investigative body to prevent even the perception of a conflict of interest.
FMA believes agencies implementing these practices enjoy, number one, a higher resolution rate of EEO complaints, lowered numbers of formal complaints, stability of their EEO counseling program, and a proactive approach to complaint resolution which instills employee faith in the process.
FMA makes a number of conclusions, recommendations. That is the concept of a hostile environment and sexual harassment should be institutionalized through education and training to both supervisors and to employees, and when sexual harassment has occurred, immediate corrective action should be taken.
Agencies should be encouraged to expand the use of alternative dispute resolutions to supplement the current EEO process. Supervisors and managers should be made aware of their rights when identified as principal agency witnesses in sexual harassment complaints, and agencies should incorporate clear criteria into their personnel performance evaluations requiring adherence to EEO principles.
In conclusion, I want to thank you again for inviting FMA to give our views. We look forward to working with you, and we hope that we can continue to take corrective action to stop discrimination and insure that there is no reprisal against those who exercise their rights.
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We thank you.
[The prepared statement of Mr. Jordan appears on p. 238.]
Mr. EVERETT. Thank you for your testimony.
Thank you all for your testimony. It has been a long day, and you have been very patient, and this committee very much appreciates that.
I appreciate and associate myself with almost all of your remarks. They were right on target.
Ms. Peddicord, the committee would be most appreciative if you could make the results of your survey available to the committee.
Ms. PEDDICORD. It will be our pleasure.
Mr. EVERETT. Thank you very much.
I am not going to prolong this hearing by subjecting you to a lot of questions, many of which have already been asked, but I would ask that my colleague, Mr. Clyburn, if he has questions to please to ahead.
Mr. CLYBURN. Well, I gather, Mr. Chairman, that all of the members of this panel were present throughout all of the testimony here today, and I would just ask that anything that you know, especially you, Dr. Miller, about the VA system.
There seems to be as I think the Chairman called it a disconnect here, and we have been wrestling with this now for 4 years, tried to codify some procedure, met with resistance, and now we are back here with Fayetteville seeming to be more egregious than even Atlanta was.
What would you recommend? Do you have any ideas about what we ought to do here, that this subcommittee ought to be recommending to the full committee and hopefully to the House as to how we would address some of these matters?
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Dr. MILLER. Well, I do believe that the VA has a culture of its own and historically that has been proven by the last several years of testimony. However, Mr. Spence, I do believe, is the one who testified that he is involved with the military sexual harassment process, and the VA and the DOD are now intimately involved with sharing agreements where professional nurses, physicians, other types of federal employees are now going to be working more closely with the military on a regular basis via sharing agreements that the federal agencies are exploring as ways to cut the federal budget and to reduce costs and improve quality of care.
Now, I would think that with this merging of facilities and staff, that we should be held to the same standards and process of reporting that is going to be held with the military, and I know from the media the military is now on the hot seat, and it is going to be probably for quite a while.
But I think that we should all be held to the high standard of excellences when reporting such instances because we are all human beings and having to work in similar situations and with similar types of patients and responsibilities, and wherever there are instances where women and men have to work together, professional women and men anyway, I think we must be held to a high standard, and I think it should be the same. That my personal view.
Mr. CLYBURN. Well, let me ask you specifically about the EEO designation or the practice that the VA has of designating the center Director as the EEO officer. Do you have any feelings about that?
Dr. MILLER. Well, I do say I like your suggestion earlier today about having an independent reporting process, and that would kind of eliminate the conflict of interest or rooster and henhouse situation, as you referred to earlier. I think that was a very good suggestion, and I support that.
Ms. PEDDICORD. There are several things that can be done. I agree with her suggestion. Having the Director of the medical facility also be the chief EEO officer does have benefits and it does have drawbacks. So that can be addressed, and a number of these things can be addressed.
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The entire handling of EEO process within the VA can be changed today without a law because the way it is set up in the Federal Government is each agency has the authority to set up their own procedures. So Secretary Brown tomorrow can come out and say, ''Okay. None of the Directors are the chief EEO officers anymore.''
What would probably be the most beneficial is to use the suggestions from the IG. Where there are problems go to the Secretary and ask that they devise a new system that takes in the problems that have been identified over the past couple of years and come up with a different system.
The EEO counselors, I was involved in a joint training of manager and union representatives down in Nashville, Tennessee, a couple of years ago. The counselors themselves, you have to realize, this is not a full-time job for them. They do this part time. They receive some training. They are called on occasionally.
So the advice that they give to potential victims could change. They may not be up to date. Maybe we need to have full-time EEO personnel. That does not require legislation.
Mr. CLYBURN. Right.
Ms. PEDDICORD. So there is a quicker fix than legislation.
Ms. NELMS. There is one other glitch I would like to comment on sort of in this same area. In my other life outside of FEW, I am also an attorney on civil rights, and I do a lot of training for the managers on EEO, civil rights, prevention of sexual harassment, and a lot of my training has taken me to the scientific communities where people have scientific degrees, and I think this same glitch I have seen in the VA exists in a lot of scientific communities, and I hate to generalize. However, I will because I think there is a way that a lot of people in the scientific profession, from my experience, do not really look at laws as applying to them, do not really look upon themselves as managers who have to listen to the rules and regulations that normal managers have to listen to, and it makes a kind of culture that says we are either above that or outside of that or not really involved in that.
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And I think when you get that kind of perspective, you get problems like NIH has had with discrimination issues, like the VA is having on this, like the Indian Health Service has had on other things, and I think there is a certain mentality in those scientific communities which I have observed too often in training situations that says they need to be convinced that these laws apply to them, that they are real managers, and as real managers, they have real responsibilities, and they need to understand their job is to enforce those policies and laws and regulations.
Mr. CLYBURN. Well, Ms. Nelms, this may be a surprise to you, but I agree with you. (Laughter.)
Ms. NELMS. Thank you.
Mr. CLYBURN. Thank you, Mr. Chairman.
Mr. EVERETT. Mr. Snyder.
Mr. SNYDER. Thank you, Mr. Chairman.
Just one or two questions for Dr. Miller and Ms. Peddicord. I am a family practice doctor and went to medical school, signed with VA, and then did part of my residency in a VA, a different VA over a 20-year period, and the issue I think you mentioned, Ms. Peddicord, as did Mr. Hinch earlier on today, about the 24-hour nature of veterans' facilities, and I guess I would add on a few other possible components there.
Maybe it is just the line of work, I guess, doctors and nurses. It is kind of an earthy business when you start ripping people's clothes off and doing all of the kinds of things we do. You kind of start talking about tatoo locations or something on patients.
But I think we also have the factor, too, do we not, the issue that a lot of VAs are teaching hospitals? So you end up with a fair number of people between the age of 22 and 26, and unfortunately for a lot of us that was our social life. I mean that is how you met your circle of friends, and it would be 3 a.m., and you know what I am talking about with on-call schedules and that.
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My question is having said all that, and I think those may be factors in this 14 percent business, but of course, the cases we are talking about do not have anything to do with that. They were eight-to-five employees, totally removed from medicine. They were, I think, clerical people and did not have anything to do with doctors and nurses.
Would you just comment on that if you would, please?
Ms. PEDDICORD. Well, I agree with you. The difference is that all of the women that spoke earlier today, all of the victims, were not members of a bargaining unit. They were personal secretaries, confidential secretaries and supervisory positions. So it is very limited what resources they have available to them.
Another problem that can occur is as teaching hospitals have, is a number of people from different cultural backgrounds where behavior in one culture may be acceptable whereas in this culture it is not acceptable. So that may contribute to the problems with the 24 hours, and if you are a resident you are working 48 hours straight, and maybe people are not quite thinking the way they normally would if they had 8 hours' sleep.
But as I stated earlier, those incidences that we are getting that involve bargaining unit employees are being dealt with immediately. There is action being taken right away, and so although incidents still occur from our perspective they are being addressed appropriate, and not that they're not a problem, but we do see a change in the culture in the people that we deal with from ignoring the situation and, oh, you know, ''Your dress was a little too short. What do you expect?'' to one that respects each other as workers irregardless of our gender.
Mr. CLYBURN. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you, and again, I want to thank the members of this panel, and, Ms. Nelms, I really hope this is not deja vu all over again, as Yogi might say.
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This committee, I can assure you, is dead serious, and we will have follow-up hearings.
I would point out to the panel and others that this committee consists of the full VA Chairman, Mr. Stump, also the full National Security Chairman, Mr. Spence, and the Personnel Subcommittee Chairman on National Security, Mr. Buyer, who will have this similar situation in the military.
In addition to that, on my right here, I am very pleased to have as my ranking member Mr. Clyburn, who has extensive knowledge in this particular field and is one of the brightest members of the class of 1992.
In addition to that, we have— —
Mr. CLYBURN. With one exception, right?
Mr. EVERETT. With one exception. (Laughter.)
In addition to that, we have the full Ranking Member of the VA Committee, Lane Evans, and Lane has already had to leave, and a medical doctor, Dr. Vic Snyder.
So this is, frankly, a hard working committee. These people are dedicated to get the information out and, frankly, to accomplish something so that in 20 more years you will not have to be back here again. As a matter of fact, we hope in a year you will not have to be back here again, and this committee will have follow-up hearings. We intend to stay on top of this.
I believe if a solution is possible, we will get it, and I think, frankly, a solution is possible. I think we can all work together and take a lot of the recommendations you have made. I know Secretary Brown is fully behind this. He wants to see it accomplished. I think that we can get there and that we should get there.
Again, it has been a long day. I appreciate your patience in remaining to testify. We have heard some compelling testimony today. As I have stated earlier, the subcommittee will closely monitor the VA's follow-up to this hearing.
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All members have 5 legislative days to submit questions for the record to each of the witnesses.
Again, thank you very much. This hearing is adjourned.
[Whereupon, at 4:05 p.m., the subcommittee was adjourned, subject to the call of the chair.]