SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCSEXUAL HARASSMENT IN THE VA AND H.R. 1703, DEPARTMENT OF VETERAN'S AFFAIRS EMPLOYMENT DISCRIMINATION PREVENTION ACT
THURSDAY, JULY 17, 1997
House of Representatives
Subcommittee on Oversight and Investigations,
Committee on Veterans' Affairs,
The subcommittee met, pursuant to call, at 9:30 a.m., in room 334, Cannon House Office Building, Hon. Terry Everett (chairman of the subcommittee) presiding.
Present: Representatives Everett, Buyer, Clyburn, Snyder, and Mascara.
Also Present: Representatives Bilirakis and Evans.
OPENING STATEMENT OF CHAIRMAN EVERETT
Mr. EVERETT. The hearing will come to order. Good morning.
Today's hearing will examine how the VA has responded to compelling testimony from five courageous women at our April 17 hearing on Fayetteville VA Medical Center. At the hearing, I asked the VA to investigate additional allegations of sexual harassment and abusive and threatening inappropriate behavior by Jerome Calhoun, the former Director, Fayetteville VA Medical Center.
We will hear about the findings and recommendations of VA's special task force convened to review the Department's equal employment opportunity complaint system. We will hear about the findings of the VA's employee survey regarding work-related sexual harassment.
Page 2 PREV PAGE TOP OF DOC We will also discuss H.R. 1703, the Department of Veterans Affairs' Employment Discrimination Prevention Act, which I introduced with our full committee ranking democratic member, Lane Evans. It is also cosponsored by the full committee chairman, Bob Stump; Jim Clyburn, the ranking democratic member of the subcommittee; Mike Bilirakis; and Steve Buyer.
This proposal will establish within the VA an Office of Employment Discrimination Complaints Resolution headed by the director, who would be solely responsible for resolving all complaints of unlawful employment discrimination within the Department. Currently directors of VA facilities are also the EEO officers for their own facilities.
From past testimony in 1992, 1993, and in April of this year, we have heard over and over again that the system VA now has does not work. Too many of the men and women of the VA perceive that some senior management within the Department does not take the EEO process seriously. I intend to ensure that VA's zero tolerance policy translates into an EEO organization in which employees have confidence.
Today we will hear from our Senate colleague from the State of North Carolina. It was Senator Faircloth's initial inquiry to the VA Inspector General that led to the uncovering of the severe problems in Fayetteville and that ultimately led to the House and Senate hearings and the House and Senate EEO bills. Senator Graham and Senator Faircloth have introduced S. 801, the companion bill to H.R. 1703.
Senator Faircloth, we appreciate you being over here. And we'll get to your testimony in just a moment. Right now I'd like to recognize our ranking member, Mr. Clyburn, who has absolutely been one of the finest ranking members anybody could have on a subcommittee.
OPENING STATEMENT OF HON. JAMES CLYBURN
Mr. CLYBURN. Well, you're so kind, Mr. Chairman. Thank you very much for recognizing me.
Page 3 PREV PAGE TOP OF DOC I want to thank you for your continued interest in holding hearings on the extremely sensitive and serious problem of sexual harassment within the Department of Veterans Affairs.
During this subcommittee's testimony in April on this subject, we called on the Department to conduct a follow-up review of the troubling incidents at the Fayetteville facility. We also asked that the Department finalize its long-awaited survey of VA employee attitudes on sexual harassment. I am pleased that the Department has completed these tasks, although I believe everyone understands that much more needs to be done.
I am encouraged by the VA's willingness to consider adopting significant provisions from H.R. 1703, the VA Employment Discrimination Prevention Act. Lane Evans and I were original cosponsors of the bill back in 1993, when it was first introduced. At that time, the VA told us that changes were in the works regarding the EEO process at VA and throughout government and that there was no need for this legislation.
As most of us know by now, this expected government-wide solution never happened, and the problems within the VA's EEO process have continued to fester. Five years after the first hearings were held on this subject, the same problems remain at VA.
It is a tribute to Chairman Everett that he has recognized the continuing need for legislation to improve the EEO process at VA. This May with bipartisan support, Terry introduced H.R. 1703, legislation derived from the bill that was first introduced in 1993.
It is also a tribute to Acting Secretary Hershel Gober that he has recognized the serious problems with the EEO process at VA and that he has proposed an administrative solution that draws in large part from the bill we have introduced during this Congress.
In my view, however, the VA's proposals in this area do not go far enough, and there is still the need for legislation in this area.
Page 4 PREV PAGE TOP OF DOC I am extremely interested in hearing the VA's testimony on this issue this morning. I look forward to working with the VA and my colleagues on this committee to ensure that we finally address this critical issue and that we restore the faith and trust in the EEO process that our VA employees and our veterans deserve.
Thank you, Mr. Chairman. I'll yield back.
[The prepared statement of Congressman Clyburn appears on p. 62.]
Mr. EVERETT. Thank you, Jim.
Mr. Buyer? Doc Snyder? Any other member wish to make a comment? Excuse me. I'll recognize you in my traditional way.
OPENING STATEMENT OF HON. FRANK MASCARA
Mr. MASCARA. Thank you very much, Mr. Chairman. Good morning.
As a new member of this subcommittee, I am honored to be participating in this important hearing this morning to examine H.R. 1703, the VA Employment Discrimination Prevention Act. I am pleased the top leaders of the Department of Veterans Affairs are present to give us an update on the Department's effort to no longer tolerate and truly eliminate sexual harassment at all levels of the VA.
I understand Acting Secretary Gober will testify that the VA opposes enactment of H.R. 1703 and would prefer to establish a stronger equal employment opportunity process administratively. While I know the VA's intent is honorable and well-intentioned, I would hope you all understand the members of this subcommittee are going to expect some firm action to see that these kinds of incidents no longer occur. We are going to expect some definite, independent process that will fully investigate sexual harassment complaints and see that the appropriate disciplinary actions are taken.
Page 5 PREV PAGE TOP OF DOC My understanding is that in the past the VA General Counsel has overturned 85 percent of the findings of sexual harassment that have been found as a result of the current administrative process. I think the most objective observer would say that clearly shows something is wrong with the process and that the VA needs to do better.
Finally, I want to also praise my colleagues Ranking Member Lane Evans and Representative Clyburn for championing this issue over the years. I understand you both were successful in winning House approval of legislation very similar to H.R. 1703 following an incident that occurred at the Atlanta facility in 1992.
I am sorry that after 5 years we seem to be back to square one. However, I do have the hope that with a strong commitment from Acting Secretary Gober and Dr. Kizer, we can all work together to see that the VA truly lives up to its zero tolerance for sexual harassment policy.
I look forward to listening to this morning's testimony, and I yield back the balance of my time, Mr. Chairman.
[The prepared statement of Congressman Mascara appears on p. 66.]
Mr. EVERETT. Thank you.
This committee is fortunate to have as a member of the committee our full committee ranking member, Lane Evans. Lane?
OPENING STATEMENT OF HON. LANE EVANS, RANKING DEMOCRATIC MEMBER, COMMITTEE ON VETERANS' AFFAIRS
Mr. EVANS. Thank you, Mr. Chairman. I appreciate the fact that you and the ranking member are holding this hearing, I think keeping the focus on this issue.
I associate myself with many of the remarks my colleagues have made. We are pleased with the important first steps that are being taken by the VA and by Secretary Hershel Gober to fix a EEO process that is clearly broken. I believe Hershel is serious about correcting the sexual harassment and EEO problems at the VA. I am encouraged by his willingness to take personal responsibility for solving this festering issue.
Page 6 PREV PAGE TOP OF DOC I recognize the VA's honest efforts to propose an administrative fix to the EEO process. Unless the VA is willing to make significantly greater changes in its EEO procedures, however, I still believe it will take legislation like H.R. 1703 to get the job done.
I believe Chairman Everett and Jim Clyburn share this view and am encouraged by the Secretary's willingness to work with us on this issue. I look forward to the testimony this morning.
Thank you, Mr. Chairman.
[The prepared statement of Congressman Evans appears on p. 67.]
Mr. EVERETT. Thank you, Lane.
An outstanding member of the full Veterans Committee is Mr. Bilirakis from Florida, who has an ongoing interest in this. We now recognize Mr. Bilirakis.
OPENING STATEMENT OF HON. MIKE BILIRAKIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. BILIRAKIS. Thank you so much, Mr. Chairman. And I, too, want to commend you and Mr. Clyburn for scheduling today's follow-up hearing. And I certainly very much appreciate the opportunity to participate in the hearing, even though I'm not a member of the subcommittee. And I also want to welcome Senator Faircloth to our committee.
Mr. Chairman, at our April hearing, several VA employees testified about their experiences with sexual harassment at the Fayetteville VA Medical Center. It took a great deal of courage for them to come forward and share their stories with us. I think most members of this subcommittee, I would like to say all members of this subcommittee, were dismayed with the situation at the Fayetteville medical facility.
I could not help but experience a sense of deja vu, as others have already said, at our first hearing. The stories we heard at our April hearing closely mirror those of VA employees who testified before the Oversight Subcommittee in 1992, when I served as the ranking minority member to Mr. Evans.
Page 7 PREV PAGE TOP OF DOC That 1992 hearing revealed that the VA process in place at the VA for investigating sexual harassment was seriously flawed. The 1997 hearing showed that the process is still flawed. In this regard, I'm pleased to be an original cosponsor of Chairman Everett's legislation.
And, although I'm heartened to see that the Department is taking action to correct its EEO process, I must admit, even though I sincerely do have great confidence in Secretary Gober, that I'm disappointed, really, that the VA is not supporting this legislation.
I think we have to ask ourselves, all of us: Can anyone blame us for being skeptical that the Department's administrative actions will adequately correct the problems within the current process? I think not.
The skepticism is based on the track record on this matter. In 1993, the House approved legislation that would have provided for improved and expedited procedures for resolving complaints of employment discrimination, including sexual harassment complaints. At that time Secretary Brown opposed the bill because he preferred to take administrative action and the bill was not enacted into law. The Secretary certainly was sincere. He's truly intended to fix the problem. But it was not done. Almost 5 years later, we are faced with a similar situation at the VA.
I believe that Sectary Gober is sincere in his efforts to address the sexual harassment problems that were documented in our April hearing, but I am not convicted that Congress should defer legislative action.
Mr. EVERETT. What I would really prefer to see, Mr. Chairman, is that maybe possibly a result of the testimony that we hear here today, that Secretary Gober will sit down us because I don't think we want to do anything that will be an obstacle or roadblock or some of the things that he plans to do there.
But at the same time I really think that maybe we ought to codify some of these ideas, maybe even some of his ideas, codify them, rather than basically leave it up to whoever is on duty at the time.
Page 8 PREV PAGE TOP OF DOC So I commend you, sir, and hopefully we'll be able to solve this problem.
Mr. EVERETT. Thank you. I think that would be very helpful.
I'd like now to recognize our a member of our subcommittee. Mr. Buyer also is the subcommittee chairman, the person in the National Security Committee and has a lot of experience along these lines. Mr. Buyer?
OPENING STATEMENT OF HON. STEVE BUYER
Mr. BUYER. Thank you. I know we want to get to the witnesses, but I just have to make a comment, two of them. Many of my colleagues are well-aware that myself and Jane Harmon, Tilley Fowler are leading the whole effort with regard to sexual harassment fraternization and sexual misconduct, all of those issues in the United States military. And we're leaving tonight to go to Great Lakes training center. We've got Parris Island yet to do. And we'll be down at San Antonio.
We've got an interim report that we submitted a couple of weeks ago if anybody would like to take a look at it.
We have had to jump in and do some micromanaging. I don't like to do that type of thing. I think the services ought to be able to take control of each of their services and do things correctly. But we have had to jump in and do some actual micromanaging. That's what's in some of this defense bill that we're going to move to conference with someone else has signed. Hopefully we won't have to do that with the VA.
I agree with Michael Bilirakis' statement. Many of us were here in 1993 when the Secretary really asked us to back off, not to micromanage, that he would take care of it. And even though my good friend from Florida used the word that the former Secretary was very ''sincere,'' I have to question that because we asked him to come here.
Page 9 PREV PAGE TOP OF DOC We asked him to testify. He chose to go cut a ribbon for a homeless shelter in southern California. When he was faced with nine of his senior managers that were up for sexual harassment, I think Mr. Brown really was more interested in leaving town.
I was very disappointed. I just want to put that on the record that I was extremely disappointed with Jesse Brown and how he handled this and how, instead of coming and talking with us and working through this issue, it just didn't happen. And so I want to take issue with your words about the sincerity of the issue.
This is not easy, guys. This is not an easy issue. It is, in fact, what we found in the military. Whether it's a man or it's a woman, they set the tone and the tenor for the environment for which people are to work in.
And individuals need to be treated with equal human dignity, irregardless of their race, irregardless of their gender. And it's those senior-level management. In fact, it goes all the way to the top that sets that tone.
And hopefully we don't have to, Mr. Chairman, Mr. Clyburn, get into the micromanagement, but I'm eager for this hearing today. Thank you.
Mr. EVERETT. Thank you.
Senator Lauch Faircloth, you're a distinguished senator from North Carolina. And we most welcome you to this hearing. We appreciate that you really kind of started this ball rolling. And now we're ready to receive your testimony.
Mr. FAIRCLOTH. Thank you, Chairman Everett.
STATEMENT OF SENATOR LAUCH FAIRCLOTH
Mr. FAIRCLOTH. I appreciate very much your letting me be with you today and appear before your subcommittee to discuss important matter. And it's one that, as has been stated before, has not been properly addressed.
Page 10 PREV PAGE TOP OF DOC The problem of sexual harassment within the Department of Veterans Affairs was initially brought to my attention by then scandal surrounding Jerome Calhoun at the Fayetteville, North Carolina VA Medical Center. Of course, one reason it got to me quickly was that Fayetteville is only about 35 miles from my home. But we all know the situation that existed there with Calhoun.
Today I would like to present to the subcommittee a constructive measure that would prevent such a blatant abuse of authority from occurring again.
The measure I speak of is Senate Bill 801, which Senator Graham of Florida, Senator Hutchinson of Arkansas and I are sponsoring, and House Bill 1703. This legislation establishes the Office of Employment Discrimination Complaints Resolution. Now, that is a governmental mouthful, but we know what it's saying.
This office would be run by a director, who would report only to the Secretary or Assistant Secretary of the VA.
This change represents a significant difference in the way VA currently handles sexual harassment and other employment discrimination claims. Believe it or not, the current process, which was in effect down at Fayetteville, allows for complaints to be handled within the facility where they originate. In other words, when these women complained down at the Fayetteville Medical Center, they went to Jerome Calhoun, whom they were complaining against. So it became a ludicrous situation.
This bill would centralize the authority for handling complaints and guarantee that officials at the very highest level are held accountable for the agency's response. Accountability was something sorely missing in the Jerome Calhoun case.
Further, this bill requires the Secretary of the VA to provide Congress annually with a detailed report of the progress of the OEDCR. Obviously, congressional oversight is needed within this area of the VA. As has been mentioned, it's not the role of the Congress to micromanage, but when we clearly see that the individual departments will not manage, then it's incumbent upon us as elected officials to act.
Page 11 PREV PAGE TOP OF DOC Had Congress not addressed the Calhoun incident, it well might have been kept totally under wraps.
The VA is likely to recommend that changes in the process be made internally and at the discretion of the FARC. We had tried that. It didn't work.
Mr. Chairman, this is needed legislation because the VA has previously responded to congressional pressure by saying it would adopt an absolute zero tolerance policy for sexual harassment. Jesse Brown himself stated that he would be personally responsible for the policy's implementation. Well, 4 years later and even the VA itself states that ''The policy of zero tolerance has been insufficient to create a culture within the Department''I'm quoting''in which harassment and discrimination are neither tolerated nor condoned.''
''Zero tolerance'' has come to mean tolerance tolerate. And that simply became the policy in the VA hospitals around the country, anything goes, because if you complain, you simply go to the man who is running the hospital. And he pretty much says, ''Forget it.''
It seems clear to me that changes in the way claims are handled must be mandated by Congress legislatively. Only then will the employees of the VA be assured of a secure and reliable workplace.
Mr. Chairman, to this day I find it absolutely ridiculous that Jerome Calhoun was handling the complaints that were lodged against him. And that's simply what was going on. If this legislation had been in place, the situation would never have occurred.
And, lastly, Mr. Chairman, I would ask and hope for the cooperation of your subcommittee on this, that until Jerome Calhoun is fired, officials in the VA are not doing their job. And the Department's employees are not being justly treated.
For those of you who might not have been aware, at long last, when Jesse Brown decided to act, the punishment he placed on Calhoun was a transfer to Florida and a salary increase with less responsibility.
Page 12 PREV PAGE TOP OF DOC Now, I think it is incumbent upon us as members of the Congress and elected officials to not stop. And I do not intend to until at least this one man is fired.
Mr. Chairman, I thank you for allowing me to be with you, and I thank the other members of the committee for allowing me to testify. Thank you.
[The prepared statement of Senator Faircloth appears on p. 73.]
Mr. EVERETT. Thank you for your testimony.
I might say that in regard to Mr. Calhoun, this committee instructed the VA to conduct further investigations down at Fayetteville. I understand that that has been done or, rather, is in the process of being finalized.
And I, too, share your view that unless we make this person stand for the alleged offenses that he is alleged to have committed, then I don't think anybody would take any kind of policy seriously. And that probably underscores the reason that we should have the legislation that you testified for the House bill and the Senate bill. I'm hopeful that we'll be able to do that.
I don't know if you're aware of some of the testimony that we had over here, but we actually had testimony from the women involved. One of the secretaries actually heard people laughing about the complaints that were filed. She was in a position to hear that. And that shows you how far out of hand this has gotten. And it also shows you the culture that exists in accepting this kind of behavior.
That's one reason that I submitted my legislation, which had been submitted earlier, as pointed out by Mr. Evans and other cosponsors. And it's also one reason that I feel as though resolved that we should have legislation on this.
I'd recognize our ranking member, Mr. Clyburn, now for any comments he may have.
Page 13 PREV PAGE TOP OF DOC Mr. CLYBURN. Thank you, Mr. Chairman.
Thank you, Senator, for being here today. I do want to say, though, before I ask any question, that I would hope that this hearing will continue to pursue what we are here to pursue. I think the senator used a term in a quote you have there, an institutional ''culture.'' That is what we're trying to get at. And I don't think that we will do ourselves any real pride by focusing on any one person.
Remember, we had Atlanta before Fayetteville. I understand we've got Seattle going on subsequent to Fayetteville. And I understand that maybe out in the State of California we've got another problem. So getting rid of Mr. Calhoun is not going to solve the problem in Seattle, nor will it solve the problem in the State of California. It didn't solve the problem in Atlanta.
So what I would hope that we would do is try to focus on policies and procedures that will allow us to root out these kinds of things when they occur and not try to find any specific scapegoat.
Now, a problem that I have with all of this is that we got this legislation through the House the last time. There was a companion bill, I believe, in 1993 in the Senate. And, of course, I understand that it didn't go anywhere. Senator, do you think that there is a willingness on the part of the Senate this time to hang with us on this issue?
Mr. FAIRCLOTH. Yes, I do. As you know, I mentioned Senator Graham from Florida and Senator Tim Hutchinson of Arkansas are still sponsoring the bill with me. And I'm sure the Senate will hang with you and go straight forward.
Mr. CLYBURN. Well, thank you.
Mr. FAIRCLOTH. I don't see any
Mr. CLYBURN. I am really pleased to hear that because, though I am very proud of this body over here and proud to be a member of it, the way this structure is up here, we sometimes get highly disappointed with all the work we put into things and find out that there are some strange rules on the other side that keep up from really getting some of these things to fruition. So I'm glad to hear that.
Page 14 PREV PAGE TOP OF DOC Let me ask you about Fayetteville.
Mr. FAIRCLOTH. I'm sorry. I didn't hear you.
Mr. CLYBURN. I want to ask you about Fayetteville.
Mr. FAIRCLOTH. Yes.
Mr. CLYBURN. I was in Fayetteville some months ago on a matter that had absolutely nothing to do with this issue. In fact, I was not even aware of the issue when I went there for another reason. My wife and I spent 2 days there. But everywhere we went, no matter what the gathering was, everybody was talking about the VA Medical Center and this sexual harassment problem. It seemed to have taken on a life of its own throughout the community far beyond the facility itself.
Did you visit Fayetteville at all or have you visited there since this?
Mr. FAIRCLOTH. I have not visited since. Of course, over the years I've been there many times.
Mr. CLYBURN. Yes.
Mr. FAIRCLOTH. But I have not actually visited the hospital since this incident.
Mr. CLYBURN. I was just wondering: Have you gotten any reports from employees, any direct reports, about what may be employee attitudes and what may be the morale inside the center? I was just wondering whether or not
Mr. FAIRCLOTH. Since this event?
Mr. CLYBURN. Yes, sir.
Mr. FAIRCLOTH. Well, I think that, as you well know, the ladies that were involved, of course, testified here before your committee.
Mr. CLYBURN. Yes, sir.
Mr. FAIRCLOTH. And they were over in the Senate and testified also.
Page 15 PREV PAGE TOP OF DOC Mr. CLYBURN. Oh, they did?
Mr. FAIRCLOTH. And they gave some similar testimony. I think there's a strong feeling among the hospital people now that I have talked toI've talked to the people; I haven't actually been therethat something is going to be done. They feel like that, for once, it's at least out of the closet, that Calhoun is gone, that we were able to at least get him moved and out of the way. So there is a great feeling that the Congress is taking a strong action and is going to do something, yes.
Mr. CLYBURN. Well, as you may not know, I have almost two decades of experience with these kinds of matters. I agree with you that, no matter what remedy we come up with, administratively there must be something in the process that takes this outside a facility or you will never get any credibility to the issue at all.
And I don't think we need to say to the people that in order to get a real adequate redress to whatever your grievance may be, you've got to wait until you get to court and go out and hire an attorney and do all of this. I think we ought to be able to have an administrative remedy that people will have faith and confidence in. And I agree with you, and I thank you for your testimony.
Mr. FAIRCLOTH. Thank you.
Mr. EVERETT. Any other member? Mr. Buyer?
Mr. BUYER. Thank you.
Senator, when you learned of this, these levels of discrimination that were at the VA hospital within your state, what type of cooperation did you receive from the Secretary of the VA?
Mr. FAIRCLOTH. Practically none. I used an expression once that getting information was like eating ice cream with a knitting needle. It was worse than that getting it out of the VA. They simply did not want to cooperate.
Page 16 PREV PAGE TOP OF DOC Mr. BUYER. And, you know, I can understand why. At our first hearing we talked about, we called the sentencingwell, we won't call it sentencing. I guess it was a proposed deal, a Club Med level of punishment for sexual harassment. I could see why they wouldn't want all of that exposed.
Mr. FAIRCLOTH. Well, yes, certainly.
Mr. BUYER. So I can understand why. I'm just as curious as to whether they were either more or less cooperative with the Senate, as opposed to the House, because we found that a little difficult.
Mr. FAIRCLOTH. No more cooperative whatsoever.
Mr. BUYER. One thing, I am also a cosponsor of this legislation. And I don't mind laying the mark on the table. I wanted to ask this question of you. In the military, when Aberdeen first broke, there were a lot of people who jumped out and said, ''Oh, we have to have an ombudsman. We have to have something that goes around the chain'' because at Aberdeen you, in fact, had drill sergeants who were abusers and you also had a company commander, who was also involved. And you had victims that didn't have avenues and access to report criminal behavior.
And so then there was this call for an ombudsman. And we began to look at it and see that the chain of command is, in fact, pretty important. And weakening, things beginning to weaken, in the chain of command is not a good thing in the military.
And then you talk about management as organizations. I don't care whether it's for at IBM or the VA. If we have a director and he needs to set that tone of the environment for people to work in, if we remove too much of his supervision, his abilities to provide a workplace, are we weakening him at all?
So if we say we're going to take a facility director and we remove him completely from the EEO process, from a management standpoint, are we weakening him too much or should he at least have some typeif a complaint is made, should he at least have knowledge or somehow participate? I'm trying to figure out how we can best move this legislation. I'd be interested in your comments on the management aspect of this.
Page 17 PREV PAGE TOP OF DOC Mr. FAIRCLOTH. Well, I would have no problem at all in him being notified that the complaint has been filed and it is being moved to the Secretary of VA or the Assistant Secretary. I think he absolutely should be notified and have a chance to respond.
In the private sector, certainly if somebody files an EEO or a complaint, it comes to thein our organization, people running the company would get it immediately. Now, they don't have final authority on it, but they are very much made aware of it. And I think the same should be true with the VA.
I can't imagine it going completely around him. Now, it wouldn't necessarily have to go through him, but he should be made aware of it and have an opportunity to be involved in the investigation.
Mr. BUYER. Or take any kind of corrective actions or take management decisions and that type of thing.
Mr. FAIRCLOTH. To report that he had already corrected it. But it still should go to the Secretary for final dispensation.
Mr. BUYER. Thank you, Senator.
I yield back the balance of my time.
Mr. EVERETT. Mr. Mascara?
Mr. MASCARA. Thank you very much, Mr. Chairman.
I would like to associate myself with your remarks. And I agree that he should be fired. As a county commissioner for a lot of years, the first thing that I did in 1980 was to separate the responsibilities of the personnel director and the EEO officer. They said, ''Well, we're saving money.''
I said, ''I can't help that. Those two need to be separated.'' And it's incomprehensible that 17 years later I'm witnessing what's happening here with the VA and this VA facility.
Page 18 PREV PAGE TOP OF DOC You're right, Mr. Clyburn. Mr. Calhoun is just the tip of the iceberg. Someone should say tomorrow morning that no facility director will serve as the EEO officer. Is that the case? Are other facility directors serving as
Mr. FAIRCLOTH. I don't
Mr. MASCARA. I think tomorrow morning someone should say, ''End. No more'' because I saw what could happen in my own county, back in Washington County, Pennsylvania.
So I agree with you, sir, and I appreciate your coming over here and giving testimony to us. I hope that this committee will act appropriately and swiftly to change the system, whatever it takes to change the system. We just can't let that go on.
Thank you very much, Mr. Chairman.
Mr. FAIRCLOTH. Thank you.
And I did not in any way mean to make Mr. Calhoun a scapegoat. I think we should start with him and move on to Seattle or California or wherever else this is going on.
And I think it's incumbent upon Mr. Gober to ferret this out and fire these people. I don't see just letting them retire or be promoted, as has happened in his case, and any of them. I have no idea who the others are. But I think Mr. Gober has the responsibility to seek out and make a disposition of each of them.
Mr. CLYBURN. I think it's Mr. Mascara's time, but will you yield?
Mr. MASCARA. Yes.
Mr. CLYBURN. Thank you so much.
Senator, what my concern is is that when you have the Inspector General conducting an investigation that we have asked him or her to conduct, I think we will do ourselves a disservice if we pursue in the hearing, go to any conclusion that we would like to see drawn from the Inspector General's investigation. That's my fear.
Page 19 PREV PAGE TOP OF DOC I have no problem with whatever happens to Mr. Calhoun. But we've asked the Inspector General to do it. Let that process work. And we ought to stay out of it until we get that report. That's all I meant.
Mr. FAIRCLOTH. Well, I can wait until the report comes.
Mr. CLYBURN. Thank you.
Mr. EVERETT. Thank you. Dr. Snyder.
Mr. FAIRCLOTH. Mr. Chairman?
Mr. EVERETT. Yes, sir?
Mr. FAIRCLOTH. We have a vote that's ordered at 10 o'clock. So if I may wrap up if anybody has any quick questions? I don't
Mr. EVERETT. Anybody? We would like to recognize the Senator's time. Mr. Bilirakis?
Mr. BILIRAKIS. Thank you very much.
Senator, I don't know whether you were here during my opening statement, but
Mr. FAIRCLOTH. Yes, I was.
Mr. BILIRAKIS. My LA/LD here, Rebecca, just reminded me that the same comments that I made to Mr. Gober when we talked just before the hearing started were the same comments that I made to Secretary Brown back when those hearings were held. And that is basically the need to codify the good steps that have to be taken and because there are changes in the top. So someone could be up there meaning well and doing well and then, all of a sudden, there's a change, a change in administration or whatever the case may be. And then you start all over again quite often.
So I thinkI can't speak for the committee or any of the committees, although I'm on the full committee and on the Health Subcommittee here. But I think we've got to sit down with the VA and codify the good things that they're trying to put into effect in addition to maybe some of the ideas that we have.
Page 20 PREV PAGE TOP OF DOC Would the Senate be willing to do that also so that we can be consistent?
Mr. FAIRCLOTH. Oh, I'm sure we would. And, of course, you know Bob Graham and Tim Hutchinson.
Mr. BILIRAKIS. Yes.
Mr. FAIRCLOTH. I'm sure we would. I won't speak for them. But I know that I would, and I9'm sure that they would.
Mr. BILIRAKIS. Thank you.
Mr. EVERETT. I think the comment that Mr. Buyer made earlier would be a good place to start for us getting together with Mr. Gober.
Senator, we certainly thank you for being over here today. And we appreciate the work, your interest in this. Hopefully you can make it back in time for that vote.
Mr. FAIRCLOTH. We'll make it. Thank you, Chairman Everett. Thank you.
Mr. EVERETT. Thank you. I would now like to call Secretary Gober and his staff as our second panel. And for each of the witnesses' panels, I ask that each witness limit their testimony, oral testimony, to 5 minutes. Your complete written statement will be made a part of the official hearing record.
I would ask our members to hold the questions until the entire panel has testified.
Mr. Secretary, welcome. I would ask you now to introduce your panel. After that, we would hear your testimony, please.
Mr. GOBER. Thank you, Mr. Chairman.
STATEMENT OF HON. HERSHEL W. GOBER, ACTING SECRETARY, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY: HON. KENNETH W. KIZER, M.D., UNDER SECRETARY FOR HEALTH, VETERANS HEALTH ADMINISTRATION; HON. STEPHEN L. LEMONS, ACTING UNDER SECRETARY FOR BENEFITS; HON. EUGENE A. BRICKHOUSE, ASSISTANT SECRETARY FOR HUMAN RESOURCES AND ADMINISTRATION; MR. NEAL C. LAWSON, ASSISTANT GENERAL COUNSEL; MS. PATRICIA A. MCKLEM, DIRECTOR, VA MEDICAL CENTER, PRESCOTT, AZ; AND MS. VENTRIS C. GIBSON, DIRECTOR, OFFICE OF HUMAN RESOURCES, VETERANS BENEFITS ADMINISTRATION
Page 21 PREV PAGE TOP OF DOC
Mr. GOBER. I have with me: Dr. Ken Kizer, Under Secretary of Health; Dr. Steve Lemons, the Acting Under Secretary for Benefits; Mr. Eugene Brickhouse, the Assistant Secretary for Human Resources; Mr. Neal C. Lawson, who is the Assistant General Counsel and Co-Chair of the EEO Complaint Process Review Task Force; Ms. Patricia McKlem, who is the Director of the Prescott, Arizona VA Medical Center and Chair of the Secretary's Working Group on Sexual Harassment; and Ms. Ventris Gibson, who is the Director of Human Resources in the Veterans Benefits Administration and was a team leader of the group that recently reviewed issues at the Fayetteville VA Medical Center.
Mr. EVERETT. Mr. Secretary, thank you for introducing your staff. I think you sensed the mood of perhaps over in the Senate and the House on the pending legislation. And we'll hear your testimony now. I'm sure you'll have something to say about that also.
Mr. GOBER. Thank you, Mr. Chairman.
Mr. Chairman, members of the committee, it's a pleasure to be here. I'm pleased to be here to testify about the very important issue of sexual harassment in the workplace.
There are four areas that I would like to address today: first, an update on the issues at the Fayetteville, North Carolina Medical Center; second, a review of all pending complaints and claims at the Fayetteville Medical Center; and, third, plan for changing the EEO procedures within VA; and, finally, results of the VA sexual harassment survey.
We have made great progress in resolving the issues at the Fayetteville Medical Center. We take very seriously the negative impact of this issue on the employees at Fayetteville. And we are working hard to heal the emotional wounds which have occurred.
The employees at Fayetteville are good people, and I am disturbed that they were subjected to such a difficult situation. We are now engaged in the process of making sure that the medical center is a workplace worthy of the commitment and dedication repeatedly shown by its employees. They remain faithful in their service to veterans during some very trying times.
Page 22 PREV PAGE TOP OF DOC I personally visited the Fayetteville VA Medical Center on June 5 to meet with all of the employees and reassure them that I am aware of the problems that exist there. I conveyed my sensitivity about the number of reviews which have been conducted at the Fayetteville Medical Center and the resultant anxiety and discord among employees and the negative publicity it generated. I assured them that such reviews were necessary in order to get to the very root of the problem and to work toward a permanent solution.
I opened up the discussion for employees to ask any question they wanted. They had a chance to ask me any question they wanted to. Every question asked of me was about ''How can we get more resources to do more for our veterans?''; not one self-serving question. These are good, hard-working people.
Mr. Chairman, that's what we're about in VA, taking care of veterans. And that's why it is so important that we resolve this issue so we can move forward and accomplish the things that we need to do for veterans.
VA employees should not have to worry about how they will be treated when they come to work. They should know that they will be able to work in an environment in which there is respect for every individual and value placed on their contributions. In that kind of work environment, they can devote 100 percent of their time and energy to the important work at hand.
I have sent a memorandum to the employees of the Fayetteville Medical Center thanking them for their continued professionalism and compassion toward our veterans. It further assures them that they should not fear any act of reprisal by any official. And I am pleased to share a copy of the memorandum with the committee.
On May 16, I commissioned a team of highly experienced professionals to determine the progress of all pending complaints complaining in the Fayetteville VA Medical Center, regardless of whether the employees filed the complaints under the EEO discrimination complaint procedures, the grievance procedures, or through the Office of the Inspector General.
Page 23 PREV PAGE TOP OF DOC I also charged the team with determining if Fayetteville employees were reassigned, transferred, demoted, or otherwise harmed by order of or action by the former director. I gave the team broad authority to review any other issues they found that we should make sure received the attention of the interim management team.
The team visited Fayetteville on May 21 for a 10-day period speaking with approximately 100 employees and examining a large number of official records and other relevant documents. After analyzing the information, the team returned to Fayetteville on June 16 to obtain sworn statements. The findings of the team are now being reviewed for appropriate personnel action.
To further the healing and restoration of employees at Fayetteville, I approved the detail of an interim EEO manager, a human resource management specialist in the Veterans Benefit Administration, Mr. Austin Lewis. He is highly respected, extremely knowledgeable.
He has conducted training, a program for supervisors and managers to ensure that they fully understand the EEO responsibilities. Next week he will provide EEO training with emphasis on discrimination complaint procedures, employees' rights to all Fayetteville VA Medical Center employees.
Mr. Michael Phaup has been the Acting Director of the VAMC Durham. He has been the Acting Director since May 2. He has done a great job down there in providing direction and leadership while serving as a stabilizing force during this difficult period.
He has refocused the attention of the medical center on quality care and customer satisfaction and regularly tours the medical center and work site, where he informally interacts with the employees, patients, and visitors. In addition, he has established and put into place a process for recruitment and selection of personnel for vacant positions.
A new management team for the Fayetteville VA Medical Center will be in place very soon. Yesterday I selected Mr. Richard J. Baltz, the current Associate Director of the VA Medical Center in Jackson, Mississippi, to serve as Director of the Fayetteville Medical Center beginning July 27. Mr. Baltz will be coming to Washington, DC and will be available to meet with any members of this subcommittee or anyone else that would like to meet with him.
Page 24 PREV PAGE TOP OF DOC With a new director in place and employees understanding that the practices of the past will not be tolerated, we believe that there will be a dramatic improvement in employee morale and a workplace which encourages and supports the best services possible for our veterans.
On May the 27th-28th, finalists for the Chief of Staff position were interviewed at the University of North Carolina School of Medicine, Division 6 Office, and the Fayetteville Medical Center. The final selection for Chief of Staff, however, will be made by the new Medical Center Director, Mr. Baltz.
Morale of the employees at Fayetteville has been a major concern for me and for the leadership at the VA. A team of skilled chaplains has been providing counseling support to staff at the medical center. They were well-received by employees who use their services. Meetings with the chaplains were confidential and allowed many employees to express their emotions and concerns in a safe, supportive environment.
With regard to the employees at the Fayetteville Medical Centerand I think this is very importantwho suffered adversely because of actions or decisions of the former director, it is our intent to do everything possible to make them whole.
Mr. Chairman, I realize I've run over my time. And I would ask that my written statement be entered into the record.
Mr. EVERETT. So ordered.
[The prepared statement of Mr. Gober appears on p. 76.]
Mr. EVERETT. Any of the others? Dr. Kizer, did you have a statement? Anybody else have a statement from the panel?
Dr. KIZER. I have no prepared statement.
Mr. EVANS. Mr. Chairman?
Page 25 PREV PAGE TOP OF DOC Mr. GOBER. I did not cover everything that I
Mr. EVANS. Would it be permissible to ask for an additional 5 minutes for the Secretary to
Mr. EVERETT. Sure. Yes. You didn't notice it, Mr. Secretary, but I had motioned for the clock to be cut off so that you could go ahead and finish your testimony. So we can give you some additional time.
Mr. GOBER. Well, I had figured I had already gone through the green, the orange, and the red. And so I thought it might be time to stop so that you could get to asking the questions.
I would appreciate that time because this is a very important issue to us. And our folks work very hard to provide the committee with the answers.
Mr. EVERETT. You never got to the red. I had already cut the clock off before that.
Mr. GOBER. Thank you, sir.
Mr. EVERETT. If you're prepared to continue, please do.
Mr. GOBER. Within the facility, we will establish an interim EEO advisory committee that will replace the people who have been serving as EEO personnel there to make sure that we are starting with a clean slate.
Our major concern is the well-being of our employees. And we want to make sure they know and believe that we will make the EEO complaint process work in their behalf. In the meantime, we will continue providing progress reports to this committee every 60 days until there is a consensus between us that Fayetteville is back on the right track.
We have learned many lessons in dealing with the Fayetteville issue. And I am duty-bound to institute systems at all levels at the VA to see that our honest, hard-working employees are never again subjected to the misuse of power.
Page 26 PREV PAGE TOP OF DOC I intend to make all employees, including line supervisors at all levels, accountable for their actions. And I intend to promote and enforce a secure working environment for all VA employees. In that regard, on May 15 this year, I announced that an agency task force would be appointed to review and propose a more credible EEO system for VA.
The task force was charged with three responsibilities. First, it was to examine the present EEO process. Second, it was to determine whether the current process requires change. And, third, it was to report to me by July 1 with the recommended changes it deemed necessary and appropriate. The task force also, as you recall, promised this committee that we would do this and have the report back within 60 days.
The task force has provided me its report. And I'm in general agreement with its findings and recommendations. This report and my reaction have been provided to this committee.
The recommendations closely resemble the model set out in H.R. 1703. Additionally, the recommendations respond to criticism raised by this committee and others regarding the role of line management in the complaint process.
The report recommends that facility directors no longer function as EEO officers; a separate Office of Complaint Resolution be established and given total responsibility for complaint processing; the Office of Complaint Resolution report to the Secretary through the Assistant Secretary of Human Resources, rather than through a line component; and EEO counselors and investigators be primarily full-time employees appointed and supervised by the Office of Complaint Resolution.
In short, management of EEO complaint processing has been moved outside the normal chain of command. This does not mean the facility manager is relieved of responsibility. It is important to maintain a commitment to zero tolerance of sexual harassment.
Making sure that all the employees understand that sexual harassment is not appropriate behavior in the workplace has always been the responsibility of the facility manager. In fact, it is the responsibility of every supervisor, manager, and employee.
Page 27 PREV PAGE TOP OF DOC I believe the structural change in the EEO complaint process is entirely consistent with and achieves the major objectives of H.R. 1703 without the need for legislation. And it preserves the Department's administrative discretion to further adjust the process quickly and efficiently as circumstances require.
We do want to make sure that implementation of the new process is a team effort involving leadership at the national level and management at the facility level and oversight by the appropriate congressional committees. We also intend to involve and enlist the talent and experience of employees throughout the system at all levels of employment.
As a result of the report of the task force, I have directed that an implementation committee be assembled to establish goals, milestones, and dates to bring about the necessary change. This committee will be directed to present its report for information to me no later than October 1 of this year. Then we'll begin the work of changing our procedures to make sure that a fair and mutual process is implemented.
Finally, the recently completed survey of VA employees on sexual harassment issues was conducted under contract by Klemm Analysis Group following recommendations by the Secretary's ad hoc working group on sexual harassment.
The final report on this survey was delivered to VA by the contractor on Monday of this week. And a copy of this survey was provided to this committee on that same day.
The survey clearly demonstrates that VA's actions over the last 5 years have made a positive impact in dealing with the issues of sexual harassment in the workplace. The VA will meet the challenge on this issue head on.
Make no mistake, Mr. Chairman. VA is firmly committed to making the agency an employee first choice and ensuring that a fair and mutual process outside the control of local management is available to those employees who believe they have been victims of discrimination.
Mr. Chairman, I have used and will continue to use every appropriate forum at my disposal, including the Congress, to send the message to VA employees that sexual harassment and discrimination will not be tolerated or condoned at any level in any circumstance under this administration. And I expect all managers in the chain of command and all employees to do likewise.
Page 28 PREV PAGE TOP OF DOC Mr. Chairman, this completes my statement. We're prepared to answer any of your questions.
Mr. EVERETT. Thank you very much.
Mr. Secretary, I'm tempted to say fool me once, fool me twice. Mr. Secretary, since our April 17 hearing, we've seen a lot of sincere effort by the VA to address specific areas I requested to be addressed. And I commend you for it.
We have had some private conversations as well as your testimony today. And I sincerely appreciate your efforts in that direction. I have no reason to doubt that you're heading in the direction the committee would like for you to head.
In your prepared remarks, you stated that your recommendations include putting in place an organizational structure that in large measure resembles the model set out in H.R. 1703. Now, I will commend you for your choice of models on that.
I agree that it would accomplish much of what H.R. 1703 and the Senate companion bill, S. 801, would do. There remain some important differences between VA's outlined approach and the House and the Senate bills, which I want our staffs to explore, particularly the sense of the use of collateral duty employees and the role of the General Counsel's office.
I do at this time, however, remain committed to taking legislative action. I think given VA's EEO organization, a statutory imprint has a virtue of its own and does not really distract from VA's flexibility issue, which we can discuss.
No significant changes I'm aware of have been made to VA's current EEO organization in quite some time. And I've not noticed that the Executive Branch usually moves any faster than the Legislative Branch when changes are needed. In 1993, you know only too well that Congress, especially the House, was willing to move but VA was not.
Having made that, let me also say, Mr. Secretary, I recognize that my question here, the next issue I'm going to touch on, is essentially a sensitive area and that your ability to respond publicly may be limited.
Page 29 PREV PAGE TOP OF DOC At the April 17 hearing, I asked the VA to investigate allegations of misconduct by the former director of Fayetteville beyond, beyond the three cases of sexual harassment investigated by the VA's Inspector General. Has that been done?
Mr. GOBER. The investigation has been completed. And I think that's all I'd like to say publicly.
Mr. EVERETT. I understand. I appreciate it.
I think I made it very clear in the April 17 hearingand you touched on it in your testimony. I'm very concerned that the VA does everything possible to make Mr. Calhoun's victims whole. Could you go in a little more detail about that?
Mr. GOBER. Yes, sir. We are going to do that. As I said, we're looking. It has been looked at, everyone that had a complaint or it looked like there was some action taken that shouldn't have been taken. We are going to do everything we can to make it right.
In some cases, in one case, a person that has left the agency, left the medical center, is being brought back. And we're trying to deal with each case individually and do the right thing.
Mr. EVERETT. I think you recognize, Mr. Secretary, this committee, recognizes that it was an extreme act of courage for these women to testify. And we're extremely concerned that no reprisals are taken against them. I would like your assurance that any that you hear of would be investigated immediately.
Mr. GOBER. Absolutely. There will be no reprisals. There will be no retaliations because that to me is a far more serious offense than some of the other offenses that we have. And we will deal with anybody that does that.
I don't think we'll have that happen there because Fayetteville has been under the spotlight so much that I think that we won't have that happen. But if we do have it happen, violators will be dealt with very rapidly.
Page 30 PREV PAGE TOP OF DOC Mr. EVERETT. I don't know what you can do about the cold shoulder approach, and I don't know that that's happening. If it is happening, I would say to those who have been very helpful to us in this investigation, I simply wouldn't let anybody control my life that way. But anything that you hear of that nature, this committee would like to know.
I had intended to start the 5-minute clock on myself. So I'm going to cut my questions at this time because I feel like I'm at the 5-minute. I'll turn to the ranking member, Mr. Clyburn. And we will probably have a second round.
Mr. CLYBURN. Thank you, Mr. Chairman. Let me thank you, Mr. Secretary, for being here.
I think you said in your testimony that you now have the report from the task force.
Mr. GOBER. Yes, sir.
Mr. CLYBURN. Now, having looked at that report from the task forceand I think you visited. Did you visit Fayetteville?
Mr. GOBER. Yes, sir.
Mr. CLYBURN. Well, how would you characterize the people's attitudes toward the EEO process within the VA
Mr. GOBER. Well, I think
Mr. CLYBURN (continuing). The employees' attitudes?
Mr. GOBER. The task force recognized that we have to make some changes. And I want to say this. I am disappointed that we didn't do this earlier. It's always you find something like this, and you say, ''Gosh. That sticks out like a sore thumb. Why didn't we do that earlier?'' And I guess that is not an excuse, but I guess it's the thing you've got so much on your plate you don't know what to eat first. And that's not an excuse in any way, but we recognized that the system needed to be fixed.
Page 31 PREV PAGE TOP OF DOC Fayetteville pointed that out very graphically that it had to be fixed. A situation like that should have bubbled to the surface very, very quickly. And we should have been able to pick up on that.
You asked a question of Senator Faircloth earlier, Mr. Clyburn, that I would like to comment on, the morale of the people at Fayetteville, at the VA Medical Center. I was amazed. They really didn't want to talk about this. They want to get beyond it. I think they felt like that we are interested in doing it now.
We have had the team down there. The team that went down there did a great investigation. And I think that they want to move beyond it, beyond this situation, and they want to get back to becoming a center of excellence to take care of our veterans, which I have nothing but the greatest admiration for them. They're a wonderful bunch of people.
Mr. CLYBURN. Well, Mr. Gober, I appreciate hearing that. My background and experience in this field tell me and the fact that I am the father of three daughters I know a little something about the issue of sexual harassment. And the people who are not subjected to it may want to get beyond it, but the people who have been subjected to it, the people whose dignities have been compromised and the people whose workforce environment has been poisoned, I'm not too sure that they want to get behind them or to ignore or want anybody else to ignore it.
I think Ms. Gibson headed the team down there that did this investigation. And maybe we ought to let some of thewould you like to respond to that or do you feel comfortable responding?
Ms. GIBSON. Specifically, sir, the environment there is one of healing at this time, especially post Mr. Gober's visit, especially post the team having spent a total on 2 different visits of 24 days there.
Concerning how people feel about putting sexual harassment behind them? If they are victims of sexual harassment, typically it's been my experience that there is a measure of relief once attention is given and we consider the sensitivity of what has happened to the individual and that appropriate mechanisms are put in place to make that person whole and the environment whole.
Page 32 PREV PAGE TOP OF DOC Mr. CLYBURN. Well, let me ask you this. Do you think based upon the aura that you encountered there and from what you heard from people there, do you really believe that people would be satisfied with the process that kept the administrative remedy within the facility?
Ms. GIBSON. The team heard several versions of employee satisfaction and dissatisfaction with the current EEO process. Some employees believe that the process does not work. Some employees who have never experienced the process obviously have no comments. Others who have experienced the process seem to feel that that process worked for them depending on the nature and the type of complaint filed. However, it was the general feeling of the employees that we met with that the process needed repairing.
Mr. CLYBURN. I agree. My question, though, is you can repair the process and still keep the administrative remedy, the ultimate administrative remedy, in the agency or within the facility.
Ms. GIBSON. I believe the EEO task force's finding within the Department is one that would, in fact, repair the process and work very well for the Department.
Mr. CLYBURN. I hear you, but I want you to hear me. How do you define repair? Now, we understand. We're going to try to repair this process. Now, I'm trying to get beyond repair and talk about the kind of repair. My problem is I cannot seemmaybe I'm wrong about this, Mr. Chairman, but I keep hearing that the ultimate repair will not go to the issue of who has the final administrative say-so about this.
Now, you heard what the senator said about the EEO officer being the director of the facility. I think that is ridiculous. I've never seen it work. And I'm talking about one who has supervised maybe somewhere between 15 and 20 thousand allegations of sexual harassment, race discrimination, gender discrimination. I've never seen that process work. And I don't think you will find any instance in any administrative procedure where it has ever worked. And if you do, I want to hear about it.
Page 33 PREV PAGE TOP OF DOC So my question, then, is: How can we have a successful repair? You can go through the process, but do you really believe that the people at Fayetteville, the people in Seattle and California and Atlanta will be satisfied with the repair process that keeps the final administrative remedy within the Department?
And nobody wants to go out and hire lawyers every time they've got an allegation. These lawyers are going to take these cases if they see a clear road to success because they know they only get paid if they win.
Now, we don't want people to have to hire lawyers every time they've got something that ought to be provided for with administrative remedies. And so we have been proposing in our legislation, in your legislation, Mr. Chairman, that we go to administrative law judges.
I'm saying: Do you really believe that those people would be satisfied with a process that kept the final administrative remedy within the institution?
Mr. GOBER. You're saying within the medical center? Our process moves it out. We're moving it out of there. The task force recommended that the medical center directors not have the authority to make this remedy. All of it comes through a new office created, by administrative reorganization which reports to Central Office and processes all of the complaints.
Mr. CLYBURN. That is still within the agency?
Mr. GOBER. Oh, yes, sir. It's within the Department of Veterans Affairs.
Mr. CLYBURN. Which is different from what we have been proposing.
Mr. GOBER. Yes, sir.
Mr. CLYBURN. Okay. Now, we understandand I may be wrong about this, but I understand that around 60 or 70 cases that went to the General Counsel's Office have been overturned because of error found at the lower level, that, what, 90 percent of them
Page 34 PREV PAGE TOP OF DOC Mr. GOBER. Two-thirds, sir, I think it is.
Mr. CLYBURN. Two-thirds?
Mr. GOBER. Two-thirds of them.
Mr. CLYBURN. Well, that may be in
Mr. GOBER. That's the initial
Mr. CLYBURN (continuing). Round numbers, but the actual numbers that I saw seemed to add up to a little bit more than two-thirds. In fact, if we do a percentage on it, two-thirds is 66 percent, 67, two-thirds.
Mr. GOBER. Yes, sir.
Mr. CLYBURN. I think we have come up with 85 percent. That's more than three-fourths since 1981.
Mr. LAWSON. The last 3 years in the EEOC annual reports I think were 81 percent, 73 percent, and 66 percent.
Mr. CLYBURN. Where you sustain the findings at the lower level?
Mr. LAWSON. No. These were
Mr. CLYBURN. Overturned?
Mr. LAWSON. These were recommended decisions by EEOC administrative judges that found discrimination which we set aside.
Mr. CLYBURN. So you set aside 81 percent, 70-some odd percent, and 60-some odd percent? Now, if you add that together and average those 3, you're still going to be around 75 percent, around three-quarters.
Mr. LAWSON. It could be, yes.
Mr. CLYBURN. Yes, sir. Now, you're telling me that a process that fails that often you would call a good process?
Mr. LAWSON. Well, this is the process that EEOC has in effect for all government agencies. I can note that across the government, there is a fairly high rejection rate of recommended findings of discrimination. Ours is somewhat higher than other agencies.
Page 35 PREV PAGE TOP OF DOC Mr. CLYBURN. Absolutely.
Mr. LAWSON. But there is at least one agency higher than ours. So I think that has to be looked at in terms of the mix. There is a high general rejection rate across the government.
Mr. CLYBURN. I want you to know, Mr. Lawson, you're talking to someone who sat on the task force to help to rewrite that stuff
Mr. LAWSON. I understand.
Mr. CLYBURN (continuing). When we were trying to get federal employees at administrative levels. We brought EEOC in it because, if you recall, before EEOC was brought into it, a federal employee had to step outside of the system and really had no real good administrative remedy. We were trying to give administrative remedies.
Mr. LAWSON. Exactly. And that
Mr. CLYBURN. So all I'm saying is if you've got a process that's trying to give people administrative remedies and that process seems to be breaking down every time it's used, then we ought to repair that, don't you think?
Mr. LAWSON. Well, I guess the criticism of the proposal under the bill is that if the perception is that the agency is the judge of itself, is the bill going to correct that perception?
Essentially the administrative law judges, as I understand it, under the bill would be agency employees. They would be hired by the VA. They would be supervised by the VA. They would be evaluated by the VA. So they would be in no different position in terms of decision-making than the present decision-makers and
Mr. CLYBURN. Mr. Chairman, this is your legislation. I don't want to be trying to defend your legislation, but I don't mind defending it.
Mr. EVERETT. I would point out that the ranking member is absolutely on target. And this committee relies heavily on the experience that the ranking member has had in this line.
Page 36 PREV PAGE TOP OF DOC Mr. CLYBURN. Well, I appreciate that. And you're so kind. I have some experience with administrative law judges. And administrative law judges, in spite of the fact that they may be housed inside of the facility, it's like the Inspector General. There's an independence to the administrative law judge that you will not find in the General Counsel's Office or that you will not find in the directorship of the facility.
Mr. LAWSON. I was
Mr. CLYBURN. I'm a little bit insulted for you to sit here and tell me
Mr. LAWSON. No. I didn't mean it the way you took it. What I was trying to say is we were talking about perception, the perception of employees. Is there going to be a perception of fairness? And I think the problem with the administrative law judges is within the Washington area and for the higher-level employees, they understand what administrative law judges are and they understand the degree of independence that the ALJs would have.
However, I think if we're looking at it from a perception standpoint, we have to also look at it in terms of how the rank and file would view that process. And if they see that these administrative law judges are, in fact, hired by the agency, they are employees of the agency, and they are performing agency tasks, the perception may well be that it is similar, may be slightly different but similar, to the process that presently exists. And that was the concern. If the perception of employees is such that the complaint process should be changed, it's not absolutely certain that the ALJ feature would change that perception to the rank and file. That's the point I'm trying to make.
Mr. CLYBURN. Well, you're absolutely correct, but one thing that is absolutely certain, that what has prevailed for the last 4 years is not working and has not worked. And we have done it Secretary Brown's way. I'm asking that you do it Chairman Everett's way. Let's try Chairman Everett's way.
Page 37 PREV PAGE TOP OF DOC And if we need to come back here and clean this up 2 years from now or make some modifications to the process, that's fine. But let's try something different if what we've got is not working.
I have a little bit of a problem saying, ''Well, this new thing may not work.'' It may not. But I really believe that we've got some good actual factual experience with the current way. And I am a little bit concerned about putting in a new process in place that will not allow for the final arbiter of these things to have some independence from administrative or managerial oversight over the person's next evaluation.
Mr. GOBER. Of course, I understand the reluctance to let us do our own thing based upon the experience of 1993 and then here we are again in 1997.
However, our proposal, Mr. Clyburn, does almost everything that the bill, the Chairman's bill, would do except it does not set up the ALJ, the administrative law judges. It does keep it within the system. It is a living document. We can change it if it doesn't work. We don't need to come back for legislation. We would want to work with the EEOC. We would want to work with this committee, the Congress to make the system work, a system that would be credible.
But it does do the one important thing. It takes managers at the VA hospital or the regional offices, out of the complaint process. It makes it independent with a Deputy Assistant Secretary reporting up to the Secretary's office.
And it can be done with the resources we currently have, the estimate that we have, while it is that it would cost $17 million more start-up costs to implement the bill plus it would cost us $2 million or more a year in continuing costs.
Now, I'm not saying that we don't have to pay something to make sure our people have the right process and make sure that the people are protected and that we're there for them. I really think that we can do it, and I think that we could take the process.
If it's not good right now, our recommendations from the task force, if we can work with the committee or anybody else to try to change it, I'd like to just keep it as simple as we possibly can but make it a good one. And then we don't have to have legislation to change it. We can change it immediately.
Page 38 PREV PAGE TOP OF DOC Mr. CLYBURN. Well, I yield back my time, but I want to say to you I want to support whatever legislation you champion over here, but I also want you to know that I'm going to have a real, real problem with anything that keeps this thing inside the system.
Mr. EVERETT. I thank the ranking member for his comments, and I must say that I've just scratched off a lot of questioning that you pursued. And I agree with the comments made by the ranking member.
One of the problems we're dealing with here is perception becomes real close to being reality. And the perception out there right now I would think is not real good.
Mr. BUYER. Thank you.
Mr. Gober, I was going through your executive summary from the task force. When I moved over to recommendations on an overview, the very first paragraphit's really just two sentences, Mr. Clyburnit says, ''The task force concluded that the VA must create a process perceived as objective, fair, and effective by employees, managers, and external stakeholders. In doing so, it is necessary that system impediments, real or perceived, that resulted in management and manipulation of the process be removed.'' So your owner is saying that. So I don't know why you had to go through all of that considering it was already written in there.
As I was also looking at this, Mr. Gober, I noted you had at the very beginning, where you had signed the report, said, ''I favor a more streamlined approach to the headquarters staff with a single high-level official responsible for VA's EEO program.''
I hate to belabor my analogies with the active forces, but I've spent the last 9 months now and, of that, 40 percent of my time in Congress has been spent on those issues. So it's hard for me to get out of that dimension. And I've lived through some of the difficulties and observations with the United States Army having allegations against the senior sergeant major, the highest ranking NCO in the Army.
Page 39 PREV PAGE TOP OF DOC So as we're going to streamline this process all the way to your headquarters, let's start with the flagpole. And so let me ask you whether there are any pending allegations or complaints regarding sexual harassment in the workplace at the headquarters staff.
Mr. GOBER. I'm not aware of any.
Mr. BUYER. Okay. If, in fact, there were such a complaint at your headquarters staff, how would that be handled?
Mr. GOBER. It would depend on which level of staff. If it was in the Secretary's office, it would be handled, be looked into by someone of a senior rank that I would appoint. If it were at a lower level, it would be investigated.
We've changed the procedures since Fayetteville. We send in a good investigative team in places like that. But here at the headquarters, it would be looked at by someone senior to the person who had been, one person or two people or three people, that were senior to the person the allegations were against. And then they would report to me or the chief of staff.
Mr. BUYER. Are those procedures already in place or are you just supposing how you think it may happen?
Mr. GOBER. Well, the procedures are in place, but I haven't had any allegations at that level. We have procedures that would let us investigate complaints like that. And we have had complaints you know in the headquarters but not by high-ranking staff that I'm aware of, Mr. Buyer.
Mr. BUYER. Well, I've seen the Army struggle with. That's why I
Mr. GOBER. Right.
Mr. BUYER (continuing). May as well throw it right into
Page 40 PREV PAGE TOP OF DOC Mr. GOBER. Sure.
Mr. BUYER (continuing). Your camp that you also ought to be thinking in that light
Mr. GOBER. That's a good point.
Mr. BUYER (continuing). That it doesn't necessarily always happen in somebody else's watch. It could happen right in your own camp.
The other thing I would like to note is that the Army is under the microscope. And the Secretary of the Army I believe did a good thing when he organized the senior panel to do a very extensive review, not only a domestic basis but around the world.
Now, I know that you did a survey. Okay? That's a good thing. It's also easy. I like the fact that the task force went to Fayetteville, but I have to sit here and question whether or not we have a full understanding of the scope of the problem.
If, in fact, we have 33 percent of the women identify the most serious allegations over the last 12 months and we've had 9 senior within the health side, has the other side of the house been looked at? Fifty-eight regional offices, how is that going to be handled? Do we fully understand the scope of the problem? Should you be taking a task force or a panel that has a 3-month or 6-month charter and you go out there and you find out what all the systems are and let's report back?
If you're doing that type of thing, I'd like to know about it. If you're not going to do that kind of thing, then perhaps here in the Congress we may, in fact, come up with our own commission or panel and we'll do that microscopic examination.
We've had to do it with the military. I don't want to do it with the VA, but if we have to, I'd appreciate your comments.
Mr. GOBER. The Benefits Administration, Cemetery Systems, they have been surveyed. They're part of this survey. And let me say this. Yes, we're sensitive to all of it, to each one of the agencies.
Page 41 PREV PAGE TOP OF DOC The Health Department, of course, our VHA, has the largest majority of employees. And there are 172 facilities, hospitals and all the outpatient clinics and things like that, scattered around the country. So obviously there's where the majority of the complaints come from because of the environment. But we are sensitive to the regional offices and cemeteries. And we did survey those employees as well.
Mr. BUYER. Survey? I'm talking about people going out, looking in the closets, turning over the stones. I don't know if that's going to be done or not done, if the task forcesee, you've got a very good product here.
The task force did a great job, I mean, because I'm having to do this very same thing. See, it's very easy. I could direct staff to do that. That's easy. But for me and Tilley Fowler and others to actually travel the world and see these things, we have been able to institute some very good changes.
So my question is whether you are interested in staking this task force out to understand systematic problems in a methodical way. And if you're not interestedand we're going to have a discussion here on whether we should implement our own commission to do an examination
Mr. GOBER. I'm very much interested in it, very much interested. And I put together this team to go to Fayetteville, a SWAT team. I'm keeping that team in place. It's going to be my immediate reaction force. Now, that doesn't keep something from happening, but the fact is that when something does happen, I want to get there very quickly because sometimes there is nothing.
It's just a rumor or there's nothing happening there. But when we have an allegation come up that needs to be looked at, we'll have somebody initially go in and say, ''Yes. You need a recon of the area'' and come back and say, ''Yes. You've got something happening there.'' We'll send this team out that when down that Ms. Gibson ran down at Fayetteville. And they'll go in. And they did a great investigation, and we'll be able to do that.
Page 42 PREV PAGE TOP OF DOC I'd like to ask Dr. Lemons, if he could, to respond to some of your concern there, Mr. Buyer.
Mr. BUYER. Thank you.
Mr. LEMONS. Mr. Buyer, I would like to identify myself with your earlier comments that there are two aspects of this that really need to be addressed. One is the discrimination complaints process, how complaints are elevated; and what type of attention is paid to them. The other is what type of an environment is a manager or a supervisor creating amongst the workforce.
We in VBA have taken a very aggressive stance in both of these aspects in our operation. On the complaints aspect, any allegation of any type made against any line official is immediately elevated to my personal attention. We are consistent with the Acting Secretary's policies in elevating these to the right people who can take responsibility for ensuring that an adequate and appropriate investigation and development of alternatives for correction of the instant complaint as well as any implications for the environment occur. We reinforce the notion that we treat these issues seriously and that we will address both of those aspects of the situations.
Second, we aggressively incorporated affirmative action; and managerial responsibility for creating a discrimination-free workforce into managers performance standards, and performance evaluations. I personally issued statements in writing to all employees within VBA about my policies and my desire to ensure that I will not only not tolerate any kind of discrimination but will quickly investigate and resolve any issues that should be raised by anybody in the organization.
Mr. BUYER. I thank the Chair's tolerance here in my questioning.
Are you comfortable that you have an understanding of the scope of the problem?
Page 43 PREV PAGE TOP OF DOC Mr. GOBER. Yes. Yes, I am. I think I have spent a lot of time on this issue, as you know, over the last several months. And I won't sit here and begin to tell you that I know every problem out there, but I get at least once, twice a weekwell, more than that. We talk about areas where we might have problems, and I say, ''I want it looked at quickly. I don't want somebody else having to come in and tell me to go look at it. I want to find it.''
I appreciate working with the committee and the staff of the committees because I think working together we have the same goal. And our goal is to make sure we serve veterans. We can't do that if we people that don't want to come to work because they're being sexually harassed or discriminated against. So we've got to get to that.
Mr. BUYER. How helpful are we to you if this committee were to fund an independent commission to examine these issues within the VA, do a systematic, methodical review, find out what systematic problems or cultural problems? I mean, if we've got 33 percent of the women talk about most serious allegations, how helpful would we be to you to have an independent commission come in and do a review? Would you be receptive and welcome such a review?
Mr. GOBER. Whatever the committee would want to do, of course. But I really don't think we have to do that to have that looked at. I think this is an issue that we can solve. I feel very comfortable about it.
Mr. BUYER. Okay.
Mr. GOBER. It's a big issue. Ms. McKlem ran the survey, worked on that, and pointed out to me that, you know, the sexual harassment task force is going to review the results of the survey. And there will be areas where we may need to do other things like do visits, send out a team to look at this or look at that.
I am concerned because we have the top 20 areas where we have a lot of problems or we have a lot of complaints filed. And that could be indicative of the fact that maybe the system works where people are filing complaints.
Page 44 PREV PAGE TOP OF DOC If I have a hospital where nobody ever files a complaint, I'd think I'd want to go look at that one, too, because there's something going on there. You know, that's not always good news. It may mean that the people are being told, ''You'd better not file a complaint.''
So I think we're getting a pretty good understanding of how this works.
Mr. BUYER. All right. Mr. Chairman, based on the answers here from the Acting Secretary, I can understand his hesitance, but I'd like to entertain discussions with you and the ranking member with regard to an independent commission to come in and actually review these issues with the VA so we can also understand, get a thorough scope of, in fact, the problem.
I agree with the Acting Secretary that these problems are very large and enormous. It is almost analogous to what we're doing within the National Security Committee for all the services. But I would like to entertain those discussions with you at a later date.
Mr. EVERETT. The Chair would be more than happy to do so. And the Chair also appreciates the experience that the gentleman from Indiana has had as the Subcommittee Chairman of Personnel along these lines. And we appreciate your comments.
Mr. MASCARA. Mr. Secretary, I applaud you and commend you for your hard work and your sincerity and sensitivity to the issues, but I do disagree with you that these matters can be handled administratively. We were burned once. We were burned twice.
I want to move on to the comparison of features that was in the material that I had that looks at the present system, the task force recommendations, and the congressional proposal.
The initial statement here is that the facility director is the EEO officer under the present system. Under the task force recommendation, that removes the facility director from the EEO process. And, of course, the congressional proposal also does that.
Page 45 PREV PAGE TOP OF DOC My question is whether the problems in Fayetteville might be just the tip of the iceberg? Are you looking across the board at all facilities to remove the facility director from any EEO activities?
Mr. GOBER. Yes. Yes, sir, across the system.
Mr. MASCARA. Are you currently looking at that and moving forward with that without legislation or
Mr. GOBER. I'm not going to wait. Our proceduresyou know, we can allI'm going to move fast to take action on that. As a matter of fact, we'll start implementing some of these task force recommendations. And then if Congress passes the legislation, I'm halfway there anyway because we have to do that.
We will take action. And I assume that's been done already. It will be done. If it hasn't been done, it will be done.
Mr. MASCARA. That bothers me.
Mr. GOBER. Yes, sir. We just
Mr. MASCARA. For that to continue to exist
Mr. GOBER. We're not going to do that. It's going to be taken away. This report just got completed this week. And we delivered it up here on Tuesday, I think it was. We will begin implementing the recommendations of the task force. And then, as I say, if Congress passes the legislation, we'll be halfway there anyway.
But we've got to do that. I agree with you totally.
Mr. MASCARA. On Page 4 of the report of the equal employment opportunity complaint process review by the task force, the third paragraph mentions the length of time. And it does some benchmarking with other agencies.
Are you saying that it takes 380 days instead ofand this is what is stated here, the regulatory 180 days to move with a complaint and that government-wide it took 305 days in 1995? Is that how long it takes?
Page 46 PREV PAGE TOP OF DOC Mr. GOBER. That's my understanding that's the length of time that it takes.
Mr. MASCARA. Isn't it discouraging to those people who make a complaint, then have to wait a year to have it adjudicated or someone to make a ruling on their complaint or
Mr. GOBER. Yes, sir. I think it would be demoralizing, but I would imagine it comes down to dollars and having enough people, EEO people, to work the claims. They're swamped, just like the people in our agency.
We have the same problem with processing claims. We have the same problem in a lot of our places. It comes down to having the dollars to hire the people. And it makes it very difficult.
But I agree. It would be great if you could, within 30 days you could, wrap up something like that. But these people are very much overloaded.
Mr. MASCARA. I have no further questions. Maybe perhaps I agree with Mr. Buyer. Maybe we need to look at the whole process and come up with some conclusions and some suggestions that make the process move, and move efficiently, rather than have these people wait a year.
It's awfully discouraging. We're trying to repair the system. You know, I look at this as one of the problems here also, in addition to the problem with Fayetteville, that across the whole system there is a problem of processing these complaints.
Mr. GOBER. It's not just in our agency either.
Mr. MASCARA. Oh, across the government agencies.
Mr. GOBER. It's all the government.
Mr. MASCARA. I see you used the other agencies, including the Air Force and the Treasury and Commerce and Labor and other agencies when you did your benchmarking. So the problem is massive. It's massive.
Page 47 PREV PAGE TOP OF DOC Mr. GOBER. Yes, sir.
Mr. MASCARA. Thank you, Mr. Chairman.
Mr. EVERETT. I agree the problem is probably government-wide, but I also agree that this is our little red wagon. And that's the one that we're going to pull. And hopefully we'll do something about that.
OPENING STATEMENT OF HON. VIC SNYDER
Mr. SNYDER. Thank you, Mr. Chairman.
I want to greet you, Mr. Gober. It's always good to see an Arkansan doing well. I congratulate you on your recent consideration for the appointment.
Mr. GOBER. Thank you, sir.
Mr. SNYDER. My recollection from the previous hearing that we had back in April was that there were several problems that were identified. One we talk about a lot here is that the director of the facility investigates the complaints, the charging complaints, even if the complaints are made against him. And it appears that we're on the path to try to take care of that.
Another problem that I recall that we discussed was that with regard to Mr. Calhoun, there was poor execution of what was then current policy. I mean, under your current policies, if they had been carried out appropriately, Mr. Calhoun could have been taken care of once you were put on notice. My recollection is that you had had a new person, probably with not much experience of dealing with that level of complaint, that there had been a letter mailed, that it kind of had to be modified, and that it was just a screwed-up situation, which reflects perhaps more on the quality and background of the people that are put into these slots to oversee those kinds of things and the training they receive.
Page 48 PREV PAGE TOP OF DOC There also was the issue of the remedy, that once there were allegations that were confirmed against Mr. Calhoun, you still apparently felt that you did not have the ability to get him fired. And we still had to deal with this issue of going to Florida, which my recollection is that some of the complainants felt that that was actually what he had wanted, that he had a retirement home down there.
A fourth issue that I recall that came up was that there was an overall sense, at least in the Fayetteville VA, that nobody cared, that there was kind of this pervasive sense that all of this stuff had been going on for a long time and the system just didn't care.
And, finally, one very specific issue that came up, to the best of my recollection, was that when these complaints are being investigated and a Mr. Calhoun or the alleged perpetrator would respond to questions, that there apparently was no penalty for giving false information. Mr. Clyburn I think had picked up on that, that that was something unusual in this kind of business.
Those are my recollections of what we had talked about before. And the two that I want or I guess the three that I want to mention, I mean, I'm optimistic that you're going to take care of this issue of the overall sense of the expectation of the agency. I know you are very concerned about what you heard at that hearing, too, and you have a reputation in Arkansas as being somebody who gets things done.
As I read through the different proposals, the issue of the remedy of how a Mr. Calhoun gets fired I guess is the bottom line. A specific question is: Do we foresee that that's going to change under your chosen method of dealing with the changes?
Are we dealing at all or in the legislation are we dealing with this issue of some kind of perjury penalty if you lie to the investigators, which I don't see anywhere in
Mr. EVERETT. That's correct. We do not have anything addressing that issue.
Page 49 PREV PAGE TOP OF DOC Mr. SNYDER (continuing). In this legislation. And maybe there are reasons why we don't, but that would seem to be a very big concern when we dealt with our investigators.
And then the issue, too, in terms of, which I suspect you're dealing with, you can have the greatest system in the world, but if the people who are put in there are inadequately trained to deal with it, which I think is what happened with Mr. Calhoun.
That's a lot of rambling, but those are the things that my recollection is are what we saw come out of the last hearing. Any thoughts you might have on any of those areas, I would appreciate it.
Mr. GOBER. Yes. Well, Mr. Snyder, as I said at the first hearing, this thing can be Monday morning quarterbacked to death because there were some mistakes made.
Mr. SNYDER. I don't want to Monday morning quarterback it, but those are the problems that we
Mr. GOBER. No. I'm agreeing with you.
Mr. SNYDER (continuing). Saw as we look ahead to what changes we need to make in statute, what changes you need to be making administratively, and what changes you need to be making in terms of personnel changes.
Mr. GOBER. I think we can handle it administratively. And certainly it would be handled through the legislation. But we have changed. We have learned from this, what happened here. And the cases that we look at now are being better investigated. They're being put together better, which will make it. In case we come to the point where you have to issue a letter of removal, a notice to remove, we'll have the evidence to do so.
Education is a big thing that we are doing. I know that Dr. Kizer has meetings with his VISN directors, the hospital directors. They've spent a great deal of time talking about this case, Fayetteville, the lessons learned, which I think is something they have to do.
Page 50 PREV PAGE TOP OF DOC New people coming into the system have got to be better orientated to know how to handle these type situations. So there were some things that we did there that if we had to go over it again would be done a lot differently.
I think if there is any good that came out of thisand I'd prefer that we didn't have to learn like this, but if there is any good that came out of it, it's the fact that we are correcting a system that was flawed and should have been corrected a long time ago.
Mr. SNYDER. I'll just conclude by saying my impression was, though, as much as we're trying to write new systems and talking about study commissions, that it wouldn't have mattered what some of the words in the law would have been. It was going to get screwed up because of how they were carried out. We can have on paper the best system in the world if the training isn't there and the right people carrying them out.
I'm optimistic you'll be the right head person for that. I'm glad you're in the job you are. Thank you.
Mr. GOBER. Thank you, sir.
Mr. EVERETT. Thank you, Mr. Snyder.
Mr. EVANS. Thank you, Mr. Chairman.
Hershel, you indicated in your testimony that the legislation we have introduced would not significantly improve the morale in the VA. What in your plan would do that? And additionally what can we do to help with the professional employees' attitude towards the VA EEOC process?
Mr. GOBER. Well, I think that Mr. Clyburn said it very well earlier and other members of the committee. I think we have to give a system that the people believe in. They have to understand that it's going to work.
Page 51 PREV PAGE TOP OF DOC You know, I'm not so sure thatI think we can run that internally. And certainly we could run it externally. But I think that the bottom line is credibility. And I think that's been touched on very well here because the people have to understand that I can go file a complaint. Nobody is going to retaliate against me. Nobody is going to cold shoulder me. I'm exercising the rights that I have as a citizen and as a federal employee.
And then if they're sure of the fact that I'm going to get a serious hearing on thisyou know, many of the complaints filed are dealt with at the local level. The largest majority of them are solved just by getting two people together and talking it out. And we're using alternative dispute resolution and things like that to help us get beyond that. Of course, something where you have a serious situation like this, you can't do that.
But I think we have to have a system, one of these systems, that gives the people the assurance that it does, in fact, work.
Mr. EVANS. In a private conversation we had, you talked about this being a working document or
Mr. GOBER. Living document.
Mr. EVANS. Living document. Could you maybe explain that a little bit more in detail?
Mr. GOBER. Right. We did this in 60 days. We did it. We wanted to keep the promise that we made to the committee. And it's a good document. I'm very proud of it. I agree with everything but one thing in the report, but I wanted to send you the whole report so you could see what my folks did. And then I wanted you to also see the part that I disagreed with.
I didn't have them change their report because I think if you make people change their report, you end up getting exactly what I would want. So I wanted them to have the free thought there to do it.
But I envision this as a document that we put into effect. After we work with the committee, we have an implementation team that would meet and talk about better ways to do it because we might if we talk to the union people, our employees, the committee, our public staffers, we would come up with changes that we could make just like that, no legislation, no amendment required or anything else. We can just do it.
Page 52 PREV PAGE TOP OF DOC And if we go down the road and we see that it's not working a month from now, 2 months from now, 3 months after it's implemented, if we see it's not working, we say, ''Hold it. That doesn't work. Let's change this and let's change. And let's make it different.''
That's what I meant by ''living document,'' that we could change it whenever we saw the need to.
Mr. EVANS. That's why I liked Mr. Bilirakis' suggestion that we sit down maybe kind of informally and talk about some of these issues in the near future.
Thank you. Thank you, Mr. Chairman.
Mr. GOBER. I think that's excellent. And I welcome the chance to do that.
Mr. EVANS. Thank you.
Mr. EVERETT. Thank you, Mr. Evans.
Mr. Buyer? Oh, I'm sorry. I beg your pardon. Mr. Bilirakis? Excuse me.
Mr. BILIRAKIS. Thank you, Mr. Chairman.
We sit up here, and it's easy for us to take potshots. There isn't any question about it. We're the ivory tower, I guess, whatever the word ivory tower. We've used it all of our lives. I'm not sure any of us ever had looked up what the actual meaning of it is. But you're in the field. You're in the trenches, as are your people, your staffers and your people, mostly in the medical centers and whatnot.
A lot of the things that have been talked about here and words like ''cooperation,'' ''We'd like to work with you,'' things of that nature, have been mentioned. One thing that we do know is that, no matter how hard we may try, you can't really legislate minds. You can't legislate hearts. You certainly can legislate remedies, if you will. And I guess that's much of what we're talking about here.
Mr. Clyburn certainly concentrated on it. That's really what our legislation tries to do. This is what you have been working on trying to do. But we also have to try to do everything we can with those people out in the field because, even though we can't legislate their minds or hearts, they've got to know that we're pretty serious about certain conduct.
Page 53 PREV PAGE TOP OF DOC I've got to keep harping. I'm not one of those people who feels that more government is better, more legislation is better. I think my record up here is indicative of that. But because we have been burned in the past, because we know that there will be changes made at the top as far as the Veterans Administration is concerned, for whatever reasons, God forbid something happens to Hershel Gober, there's a new Secretary, et cetera, et cetera, I personally have great concerns that some of the things that you're trying to put into effectand I take a look at your comparison of features there. And there aren't that many differences.
Administrative law judges is different. And I agree with Mr. Clyburn. I've worked with administrative law judges. I worked with one of the government agents here years ago when I was an engineer. They were called examiners at that time. And they were hired by the agency. But I tell you they probably found against the agency attorneys and the agency engineers more than for them. So I think there is an element, an adequate element, of independence there.
I guess what I'm saying is, you know, facility director, your task force recommends removes facility director from EEO complaints process. Our proposal does the same thing.
Appointment of EEO officials, there's a difference there. But I don't know why that can't be discussed.
EEO officer, there's a difference there. But I don't know why that can't be discussed.
EEO counselors, you say primarily full-time counselors employed by DAS, Deputy Assistant Secretary, et cetera. We say full-time counselors employed by OEDCR. That certainly is pretty close.
EEO investigator is exactly the same, full-time investigators, except how they're employed.
Then, of course, we go on down. And the final decision, final agency decision, there's a distinction there.
Page 54 PREV PAGE TOP OF DOC I look at your review team's preliminary report. Wonderful. Some of the things Mr. Buyer talked about, I don't know why anything our legislation does interferes with what is taking place there.
Mr. Secretary, your opposition to the legislation, this bill would remove the administrative flexibility needed. And I believe very strongly in the flexibility. I don't know why we can't sit down with the staffs, if you will, and make sure that our legislation is suchand I can't speak for the Chairman. Please forgive me, Mr. Chairman. I'm not
Mr. EVERETT. Go right ahead, please.
Mr. BILIRAKIS. But the point of the matter is I don't know why we can't maybe make some changes so that you can retain the administrative flexibility.
Singling out the VA and its employees as against other government agencies is a concern, but the fact of the matter is apparently, Mr. Clyburn, if there are distinctions between what we want for the VA and other agencies and other departments, maybe we ought to be looking at the other agencies and other departments in terms of the remedy process. So I'm not sure that that's a good enough reason, although I can understand you don't want to be singled out as against the other groups.
And then, of course, the administrative law judges, the fox guarding the henhouse idea, again, I feel the administrative law judge is adequately independent.
And then you say, sir, finally and perhaps most significant, ''Most of the changes in the bill can be accomplished by administrative reorganization'' I discussed previously and you discussed so very well today.
Well, what's the harm? So you're accomplishing it administratively. What is the harm in codifying it so that if these are good ideas they can be carried forward Secretary through Secretary through Secretary?
So I guess I'm going right back to all of that, Mr. Secretary. I applaud you. Mr. Mascara, others have complimented you. I'd like to think that I have, too. You're sincere. I thought Mr. Brown was sincere. I may have been wrong.
Page 55 PREV PAGE TOP OF DOC But, even with all of the sincerity in the world or all of the best intentions in the world, what is wrong with codifying some of these things so that these remedies will continue on?
And if changes have to be made, granted, it takes a little harder going through the process here, congressional process, and administratively. But that's not really so bad either. I don't know that that's enough of a reason to not be willing to sit down, rather than just oppose, to not be willing to sit down and say, ''Hey, these are some of the things that we're doing. We think they ought to be codified. But we'd like to have maybe suggest some changes in some of your wording,'' that sort of thing.
I've used up all of my 5 minutes, but if the Chairman would be willing, maybe we can get a quick response from you.
Mr. GOBER. Well, I understand the concern not being codified. And I guess if we can sit downand I think we can. I think we have to sit down and work it out together so that we get something that we can work with, we can administer for you and make sure that we meet the requirements that Congress passes because we certainly want to do that. It's something that reassures our people.
So I guess, Mr. Bilirakis, I think that we should maybe sit down and talk about it.
Mr. BILIRAKIS. Okay. You know, you have promised me, Mr. Secretary, and I think your promise is gold. You have promised this committee, and I know you really mean it. But, again
Mr. GOBER. Yes, sir.
Mr. BILIRAKIS (continuing). We're talking about
Mr. GOBER. I understand totally. We're going to handle this problem. We've got a lot of very, very important issues that we need to deal with running the VA system. We're going to. We have to solve this issue before we can get on to doing that. Our people have got to be able to help do it, and we've got to reassure them. So we're going to officially
Page 56 PREV PAGE TOP OF DOC Mr. BILIRAKIS. So, essentially, you're saying to this committee that if the Chairman and the ranking member and the staffs are willing and request that you and your staffs sit down and discuss our legislation and maybe some
Mr. GOBER. Be glad to, sir.
Mr. BILIRAKIS. You're willing to do that?
Mr. GOBER. Be glad to do it.
Mr. BILIRAKIS. All right. Thank you. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you very much. And we have requested in our opening statement that be done. And I appreciate the gentleman's input on this.
We're going to have a second round. I've contacted all of the members. And, Mr. Buyer, you're up.
Mr. BUYER. Thank you, Mr. Chairman.
I only have two things. One, I want to be very candid. And, Dr. Kizer, let me say to you that I think you're doing a very good job. Let me extend that compliment to you. But also I got tickled last fall. I always got tickled last fall and last summer because you were out in the field instituting good changes to systems who are resistant to change but they've got to get with it.
And Jesse Brown had fun. Whenever he would come under attack by a local facility about changes for which he had instituted, ''Well, it's the Republicans that were doing it to you.'' I got kind of tickled by that.
Let me just say, politics aside, that's the games that were played. You keep your head down and keep doing the right thing. I extend the compliment to you. What you're doing out there in the field in delivering health services to the veterans is very good. So I want to take that opportunity to compliment you.
Dr. KIZER. Thank you.
Page 57 PREV PAGE TOP OF DOC Mr. BUYER. The other is, Mr. Gober, I went back to the parking lot issues identified over here. You're on a hot seat today. I didn't mean to put you on that hot seat, but you've stepped forward to the plate. And I compliment you for being here. That's why I'm so upset that Jesse Brown didn't come. I compliment you for being here and stepping up to the plate.
Some of the things in these parking lot issues, they said too often the ball had been dropped between the initial indicators of a problem and senior management efforts to deal with it. There are some very candid remarks.
The other, they talked about disciplinary action for offenders. They talked about the old boy system, not being able or willing to discipline senior management officials. They also said that moving disciplinary problems and parking them somewhere, rather than actively deal with them; on culture, we need a change in our culture. Those are strong words. That's very candid for a task force to come back and report such things.
I'm back to my analogies again. In a meeting with high-level Army officials, I said, ''You know, you just can't go out there and discipline those of whom perpetrated, the perpetrators at Aberdeen. We've also got a chain of command.''
You've got commanders who permitted such an environment to exist. Commanders are responsible for what they know and perhaps what they should have known also. They've got to get out and look under the rocks. They've got to be around. They've got to be visible.
Not long ago some of the chain of command had been relieved administratively. I'm here concerned. You know, we can jump on Mr. Calhoun. But you know what I'm concerned about? I'm concerned that there was such a chain of command in the disciplinary function that permitted such decisions to have been made.
So my question is to you: What review or actions will you be taking to examine how those decision-making processes were done or permitted or are you doing anything about that chain of command that made such a decision that we all find so horrible?
Page 58 PREV PAGE TOP OF DOC Mr. GOBER. Mistakes were made. And I think honest mistakes were made, too, and lack of knowledge, lack of communication, not talking to people, saying, ''Hey, what do I do in this area? How do I handle this?''
Everything is not over yet regarding this case, but I am concerned more about how we handle cases in the future. I feel very comfortable that we have a process in place that will preclude this type of instance from happening again, the fact that we get involved in it very early on, it is reviewed within the Office of the Secretary to make sure and the right lawyers are involved to make sure that we have conducted the investigation and everything in the right way.
So I guess, Mr. Buyer, I don't have any plans to go out and cut off a bunch of heads. I would say that because of this. I would think that we have had many discussions among ourselves because the ultimate responsibility, of course, now is mine. And I don't shirk from that responsibility. But I think I'm more interested in what happens in the future than what happened in the past.
I have already admitted that we made mistakes. And I think that now I have to concentrate on making sure that we don't make those same mistakes again.
Mr. BUYER. All right. You're right. The past sets the foundation for corrective action so it's not repeated in the future. It takes me back to my independent commission discussion.
Mr. EVERETT. Thank you, Mr. Buyer.
Mr. GOBER. Mr. Chairman, if I may?
Mr. EVERETT. Certainly.
Mr. GOBER. One thing. Mr. Buyer asked the question earlier. I'd like to ask Ms. McKlem. The 36 percent question, I'd like to have her explain it to you, sir, if you don't mind.
Page 59 PREV PAGE TOP OF DOC Ms. MCKLEM. Thank you.
When you're looking at the sexual harassment survey results, the comment that you made about 36 percent of the employees identified a ''most serious incident,'' I think that has to be put into perspective. All of the survey respondents, which was over 20,000 people of the 30,000 who were surveyed, were asked to identify if one of a list of 30 incidents had happened to them. They were then asked to describe the most serious incident.
Of the 35 people who responded yes to one of those types of incidents, approximately half of them said that they did not consider that behavior to be sexual harassment. There's room for debate on that, whether it's appropriate or not, but that was the respondents' description of the incidents that happened to them.
When asked to describe the most serious incident, the largest majority of those were things like comments, touching of a shoulder, those kinds of experiences.
It doesn't mean that we're not looking seriously at all of the comments and all of the behaviors and that we will not be addressing those in terms of training, but in terms of describing a most serious incident, I think that that has to be put in perspective. And it's not, in fact, a serious kind of sexual harassment that occurred. It doesn't mean that we don't take it seriously.
Mr. EVERETT. I would at this time order the report of the equal employment opportunity complaint process review task force be made a part of the record; in addition to that, that the preliminary report of Ms. Gibson be made a part of the record.
[The equal employment opportunity complaint process review task force appears on p. 99.]
[The human resources report appears on p. 58.]
Page 60 PREV PAGE TOP OF DOC Mr. EVERETT. Mr. Secretary, there's a tone here which I hope that you've picked up on. You're not dealing with simply this issue of sexual harassment. We're dealing here I think it's become apparent with a couple of other issues.
You're dealing with an issue of broken trust. You're dealing with an issue of a word that we used a lot around here, but I'm not real sure that in the rank and file of the VA administration that it is quite understood. And that's one of a culture that exists.
This Chairman has personally experienced what he feels to be an obstruction put in his way by a director. We can't have that. We have constitutional duties. We're going to pursue those constitutional duties.
I don't know what has to happen, but if I were in your shoesI'm not, thank goodnessif I were, I would recognize that there is an issue of broken trust here. And there is a larger issue or at least the same magnitude of we really believe that there is a culture within the VA that defies overshoot by this committee and perhaps by this Congress and that some of them even think it is laughable.
Now, it doesn't matter to me. I'm positive if Mr. Clyburn was sitting in this chair or I'm sitting in this chair, that would be this feeling of this committee and that this is going to be pursued on a very bipartisan basis. I think you've seen here today that the comments have been very bipartisan. We're interested in the same thing you're interested in, and that is what's best for the veteran.
And, to be very honest with you, you have a challenge in front of you. I see a great gap between the trust of this committee and between the VA. I get increasing reports of the culture that I'm speaking of that defies and I think in some cases resents oversight by the Congress. And I would ask you to take that into consideration. This is something that we need desperately to work closely in the coming years with the VA to pursue the best interests of our veterans.
Page 61 PREV PAGE TOP OF DOC And on today's hearing, I certainly appreciate your willingness to report back to this subcommittee every 60 days, as stated in your written testimony. And I would ask that we be notified sooner if any significant events relating to Fayetteville arise.
Thank you today for your testimony.
Mr. GOBER. Thank you, sir.
If I may, in closing, I want to assure you that I have a great respect for the Constitution of this country. And we want to not widen the gap. I want it to be closer. I want us to work together because I think we can only be successful in doing our job if we don't play games with each other, play ''Gotcha,'' as you and I discussed the other day.
I think we have to understand what our real job is, and our job is to make sure we take care of veterans. Your job is to watch us and make sure we do that. I fully respect that, and I pledge to you that we will no grow farther apart. We will work closer together. It's easier to do it that way. And, besides that, it's the right thing to do.
Mr. EVERETT. I appreciate those comments, and I will echo the comments of Mr. Buyer. We really don't want to have to micromanage, but if it comes to that, it will come to that.
Thank you, Mr. Secretary.
Mr. GOBER. Thank you, sir.
Mr. EVERETT. We now have one more panel: Mr. Bill Merriman. He's Deputy Inspector General. We would ask him to step up to the table, please.
Mr. Merriman, thank you very much. Will you introduce members of your panel and then proceed with your testimony, please? We'll ask you to hold your testimony to within 5 minutes of
Mr. MERRIMAN. Thank you, Mr. Chairman.
Mr. EVERETT (continuing). Oral testimony. And your complete testimony will be made a part of the record.
Page 62 PREV PAGE TOP OF DOC Mr. MERRIMAN. Thank you.
STATEMENT OF WILLIAM T. MERRIMAN, DEPUTY INSPECTOR GENERAL, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY: MS. MAUREEN REGAN, COUNSEL FOR INSPECTOR GENERAL; AND MS. JUDY SHELLY, SENIOR ANALYST, SPECIAL INQUIRIES DIVISION
Mr. MERRIMAN. On my right, I have Ms. Maureen Regan, counsel for the Inspector General; on my left, Ms. Judy Shelly, who is a senior analyst in our Special Inquiries Division.
Mr. Chairman, during the hearing before this committee in April, the Department of Veterans Affairs made a commitment to investigate outstanding and new allegations of impropriety by Jerome Calhoun, the former Director of the VA Medical Center in Fayetteville, NC. In fulfilling that promise, the Department asked for assistance from the Office of the Inspector General on two specific issues. This assistance was provided.
The first issue was whether there were any sexual harassment complaints against Mr. Calhoun during his tenure as the Associate director at the VA Medical Center in Buffalo, New York or during the time he was Acting Director at the VA Medical Center in Batavia, New York. These were Mr. Calhoun's assignments prior to his appointment as Director in Fayetteville.
To review the allegation, two senior members of my staff conducted a site visit at these VA medical centers. At our request, prior to the site visit, the director of the medical centers notified the employees of the visit by distributing a letter to the medical center staff at both facilities and by announcing the visit on e-mail. Employees were invited to meet with or otherwise contact the IG team if they wanted to discuss their experiences with Mr. Calhoun.
Page 63 PREV PAGE TOP OF DOC More than 20 employees were interviewed by my staff during the review. No current or former female employees came forward with an allegation that they were sexually harassed by Mr. Calhoun.
The employees interviewed included a number of employees who were involved in and familiar with the EEO programs during the time Mr. Calhoun was employed at the two New York VA medical centers. No one had any recollection of a formal or informal complaint of sexual harassment against Mr. Calhoun. We reviewed the EEO files for both facilities and found no documentation of a formal complaint of sexual harassment against Mr. Calhoun. Because centralized records of informal complaints are not routinely maintained, we were unable to review records relating to informal complaints filed during the relevant time period.
Based on our review, we concluded that there was no evidence that the complaints of sexual harassment were filed against Mr. Calhoun while he was Associate Director of the VA Medical Center in Buffalo or the Acting Director of the VA Medical Center in Batavia.
During the review, current and former employees did bring issues to our attention that were unrelated to the issue of sexual harassment. Because the issues were similar to and within the scope of the review being conducted by the Department at the VA Medical Center in Fayetteville, we forwarded the information to the Department for follow-up and action if deemed appropriate. If the Department needs assistance in following up on these or any other issues, the Office of the Inspector General will provide the necessary assistance.
With respect to the second issue referred to us by the Department, we are in the process of obtaining, reviewing, and analyzing records and other relevant information. We expect to refer the results of our investigation to the Department in the near future for whatever action the Department deems appropriate. Because the review is ongoing and the information is maintained in a Privacy Act system of records, I do not believe it would be appropriate to provide further detail on this issue in a public forum at this time.
Page 64 PREV PAGE TOP OF DOC Thank you, Mr. Chairman, for the opportunity to provide you with an update on our work conducted by the Office of Inspector General since April relating to the Department's commitment to follow up on allegations of impropriety by the former Director of the VA Medical Center in Fayetteville, NC.
I'd be happy to address any questions you might have.
[The prepared statement of Mr. Merriman appears on p. 87.]
Mr. EVERETT. Let me recognize our ranking member now for any questions that he may have.
Mr. CLYBURN. Yes, Mr. Chairman. Thank you.
There's something said there that raises a question in my mind. And if it's a problem, then okay. You indicated that something turned up in your visits to these two New York facilities that was related toit seemed to be saying something was related to management procedures or management, managerial habits of Mr. Calhoun, but it was outside the scope of sexual harassment but inside the scope of your review.
Mr. MERRIMAN. The first thing we wanted to pin down was: Had a sexual harassment complaint been filed?
Mr. CLYBURN. Right.
Mr. MERRIMAN. Okay. So we found out that wasn't the case.
Mr. CLYBURN. Right.
Mr. MERRIMAN. We did talk to employees. No one came to us and indicated that there was any further sexual harassment while he was up there, that happened to them or that they witnessed.
Some people complained about behavior up there similar to some of the complaints at Fayetteville. And we referred that to the committee. I don't want to go
Page 65 PREV PAGE TOP OF DOC Mr. CLYBURN. You referred that to?
Mr. MERRIMAN. To the Department's investigative group that was looking at those types of complaints.
Mr. CLYBURN. Were you present when we had that hearing? What was it, in March?
Mr. MERRIMAN. I testified, sir.
Mr. CLYBURN. Or April?
Mr. MERRIMAN. April.
Mr. CLYBURN. April. Were you here?
Mr. MERRIMAN. I testified. Yes, sir.
Mr. CLYBURN. You testified. You may recall some issues raised by the ladies who testified. I was a little bit careful because I didn't want them to misunderstand because a couple of the allegations, especially the lady who testified who followed Mr. Calhoun from the New York facility to Fayetteville, I kind of warned her that the issues she raised were not sexual harassment issues as I understood the law but that had a lot to do with management style and whether or not he was a good manager.
Am I to understand that you are pursuing management style or whether or not he is a good manager as a part of what you are looking to?
Mr. MERRIMAN. That's correct, in conjunction with the Department. Wherever there was an allegation of poor management or inappropriate behavior, we identified that. We're working with Ms. Gibson. And it will all come together.
Mr. CLYBURN. Very good. Thank you.
Mr. EVERETT. I thank my ranking member.
Mr. Merriman, thank you for your testimony. You have informed us the status of your activity, which is what the subcommittee asked you to do. Because your investigation is ongoing and you have indicated you will report your results in the near future, I have no questions for the public record. We want to be careful not to compromise your work. Please provide the subcommittee a copy of your report when it is issued.
Page 66 PREV PAGE TOP OF DOC The panel is dismissed. Today's hearing as a follow-up to keep the focus on the VA's efforts to address specific problems at Fayetteville VAoh, I'm sorry.
I'm sorry. Forgive me. Go ahead, any questions you may have.
Mr. BILIRAKIS. I really don't, Mr. Chairman.
I guess I have a curiosity. You testified in April. So you heard the other testimony. You heard the testimony from the ladies who had the problems. And you've sat through what went on here today.
I'm not going to ask you at this point, but we've prepared this legislation. It's the Chairman's legislation. Some of us have cosponsored it. We've shown an interest in the past. I don't know that that legislation actually goes into the IG and your function.
I guess again, with all due respect to the Chairman, at least on my part, I would invite you, on behalf of the overall committee anyhow, to make any suggestions in terms of the role or maybe a better role or whatever, the role that the IG may play in all of this.
I know when I was in the military,and that was many years agoit was the IG. I mean, my gosh, back in the old military, you were concerned about chain of command and honor. If you had a complaint, you almost didn't go through the chain of command. I mean, you reached out, looked to try to find the Inspector General. And, unfortunately, not too many of the lower-level troops were even aware of an Inspector General being available.
So the role, as I see it, the role that the IG would play in all of these matters, sexual harassment, if you will, in the military and in government, is maybe a bigger one than some people would see your role being. I don't know whether you have any comments on that.
Mr. MERRIMAN. We'd be happy to look at the legislation from the standpoint of how it might impact the IG. I think the Acting Secretary has indicated that he would be willing to publicize things like the IG hotline, if people didn't feel comfortable with going through the EEO process, that they could come to us.
Page 67 PREV PAGE TOP OF DOC The only caution I would have is to not duplicate processes. I'd like to see an EEO process that works and works well and that people can inject themselves into that process so that we as the IG wouldn't have to look into individual EEO complaints, that they would be handled by a well-established process that everybody agrees is working well. That would be my concern, that we don't duplicate what everybody else has put in place.
Mr. BILIRAKIS. Thanks.
Mr. EVERETT. Yes?
Mr. MERRIMAN. Go ahead.
Ms. REGAN. I think one of the concerns we would have is if people would come to the IG, they might lose their due process rights that they would have in the EEO system, which has some significant time limitations. So unless there was legislation that would address that issue.
That's one of the reasons we're reluctant to get into EEO complaints or other complaints that have time restrictions on them.
Mr. BILIRAKIS. Okay. I see. And there are others. Certainly Mr. Clyburn is maybe the leader in that regard, who understands that process better than I. But I do know that based on personal experience the IG process is also a very significant one. And I just really wasn't sure what more we could do or should do in that regard.
Well, again, it's in your hands. You have an invitation for an input if you'd like to do so.
Mr. MERRIMAN. I appreciate that, sir.
Mr. BILIRAKIS. Thank you, Mr. Chairman.
Mr. CLYBURN. If I may, Mr. Chairman?
Mr. EVERETT. Certainly. Go ahead.
Mr. CLYBURN. Let me ask, if I may. As I understand the process, if an employee were to file a complaint totally in the time, at any point in that system, the employee could ask that that complaint go to a different level, to another avenue without losing his or her due process rights. I mean, the time would have been tolled from the time the complaint was filed.
Page 68 PREV PAGE TOP OF DOC Mr. MERRIMAN. I think Ms. Regan was talking about coming to us, instead of getting into the system, and making certain milestones that were implicit in the system. In other words
Mr. CLYBURN. I don't think any of us here envision a process that would have the employee going directly from the incident to the Inspector General. I don't think that's what Mr. Bilirakis is talking about at all.
We're talking about when the incident occurs and the complaint is made. Whatever the first step in that complaint may be, the times are tolled unless you've got something different from any process I'm familiar with. And then if the employee is not satisfied that his or her supervisor or whoever may be supervising the person the allegation is made against and decided to go from that point to the Inspector General, that person will not lose any due process rights because the time tolled or the time the complaint was filed, not when the time he or she may have asked to come to you, but from the day the complaint was filed.
Ms. REGAN. After somebody came to us
Mr. CLYBURN. I mean, the clock stops running. Let's just have
Ms. REGAN. If it's a situation where the clock would stop running, they still have some time constraints when they go through the informal process. When that ends, we get into the formal process.
And I'm not sure where you would envision we would come in, but I think what Mr. Merriman was saying earlier, if they're in the EEO process, there is a process there for an investigation to be conducted. And we wouldn't want to duplicate those efforts. Now, if it could be an either/or, maybe there's legislation that would take care of that.
But at this point in time, we've never been asked when somebody has been in the process to come in and conduct an investigation. It has always been when people come to us who haven't gotten into the process yet. And that's more what we were talking about earlier.
Page 69 PREV PAGE TOP OF DOC Mr. CLYBURN. Okay. Well, we understand, but what we're talking about here is trying to find some independent arbiter in this process before it goes into the court system.
We have historically in this country, especially with these issues, tried to provide administrative remedies to people. We don't want to clog up the court systems. I mean, we can't even get federal judges appointed right now. So we don't want anything going to court. We want there to be administrative remedies. We want there to be an independent investigation.
What we are asking for is for a system to be put in place that will provide an administrative remedy independent from the agency or the facility. That's what we're asking for.
Now, you've got something there that you're dealing with that came to you because the administrative procedure did not work. And that's all we're talking about here.
Mr. BILIRAKIS. I'm sorry. I didn't catch the introductions. But you made the comment that you were talking about where they come to you, in effect, in lieu of going through the administrative process.
Ms. REGAN. Correct.
Mr. BILIRAKIS. All right. Why don't we just very briefly explore that? When that happens, give us the scenario.
Mr. MERRIMAN. They would come to us?
Mr. BILIRAKIS. Yes. They come to you, yes. For some reason, they don't go through thethey don't have any confidence in the process. God knows we can understand why they wouldn't because of some of the testimony we've heard over the years.
But when they come to you, what happens? I mean, what
Mr. MERRIMAN. Well, it's not been very frequent, to start with. But if they came to us, the first thing we would want to know is why they're not in the process.
Page 70 PREV PAGE TOP OF DOC Our preference would be to get them in there because they have greater relief than they can get from us. I believe there are financial inducements that can come from that approach.
But if there was a problem, such as Fayetteville, where they did not make a complaint, they had no confidence in the director, that's where we would get interested. We would probably be the only ones as opposed to going to court, to get some remedy for the individual.
Our concern would be that a remedy can be provided to them. We would encourage them to use the process if they had confidence in it. Otherwise, then we'd have to get involved.
Mr. BILIRAKIS. I know, but when you get
Mr. CLYBURN. Believe it or not, there are a lot of employees today who may not know about the EEO process within the system. It always surprises me to know the number of people who just don't know. And they'll go downtown to a local attorney.
Any attorney worth his or her salt, the moment that person walks in the door will pick up the phone and make sure that the person filed the complaint with the proper administrative agency.
And it would seem to me that if someone were to come to the Inspector General's Office, your first order of business, as you said, was to make sure that that person filed the complaint properly in the administrative process, even if you are going to suspend whatever you will do until it works its way back.
So I think that it shouldn't be an either/or here. I think you can do either one or both at the same time. Even administratively the EEOC process, anybody that files a complaint at the state agency under the current system, that complaint is automatically dually filed by law with the federal agencies. So the person will not lose any federal rights.
Page 71 PREV PAGE TOP OF DOC Mr. BILIRAKIS. So if they go to the IG in lieu of, you're saying it's automatically considered
Mr. CLYBURN. If we can have dual legislation, just as we have done with the federal bureaucracy, that complaint will be considered dually filed in the system.
Mr. BILIRAKIS. So your power or your influence would be to try to take care of that complaint on an immediate kind of a basis? What would you do? Would you go to the person against whom the complaint is made and basically try to solve it right then and there?
Mr. MERRIMAN. No. If they came to us, first of all, once again, we'd want to know why they weren't getting into the system.
Mr. BILIRAKIS. Yes. No, I appreciate that, sir. But, I mean, where in the rare cases whenactually, I may be taking too much time on this. I don't know. But in the rare casesas you indicated, it's a rare casewhere, in fact, they stay with you, although it's dually filed, what do you do? Do you then make an immediate contact against the person being complained against and use your influence to accomplish something there?
Mr. MERRIMAN. We try and understand the facts first.
Mr. BILIRAKIS. All right.
Ms. REGAN. If, in fact, somebody has already filed an EEO complaint and they are in that process, very frequently we won't do anything because the process provides for them an investigation by
Mr. BILIRAKIS. A remedy, right.
Ms. REGAN (continuing). An investigator. And that would get them through the system and give them their rights to the EEOC as well as their rights to the federal court.
Now, we may get a casein fact, I guess some of the women who testified here back in April were ones who hadn't filed a complaint. It was against the senior manager. In that case, we will conduct an investigation and report our findings to the Department, as we would under the IG Act.
Page 72 PREV PAGE TOP OF DOC So we would have no authority to take any action or give them any remedy.
Mr. BILIRAKIS. So you would report that to the Department?
Ms. REGAN. Right, which is what we did in this particular case.
Mr. BILIRAKIS. But the Department was in this case the head of thewho? ''The Department'' being who, the Secretary of the Veterans Affairs?
Ms. REGAN. I believe in this case we reported to the VISN Director.
Mr. MERRIMAN. The VISN Director.
Mr. BILIRAKIS. The Assistant Director.
Mr. MERRIMAN. The VISN Director.
Ms. REGAN. Dr. Gross.
Mr. BILIRAKIS. I see.
Ms. REGAN. And that's the process that's set in place under the IG Act. So we have no authority to order any kind of remedy for either party, either against the person or for the person.
Mr. BILIRAKIS. All right. Thank you.
Mr. EVERETT. Again, I apologize for my friend from Florida and do appreciate his continuing interest because oftentimes Mr. Clyburn and I look around at this time of the day and there's nobody here but us.
As I was saying, today's hearing was intended as a follow-up to keep the focus on VA's efforts to address specific problems at Fayetteville VA Medical Center and the need for VA to change its management culture Department-wide. It was also clearly put on the table the issue of how to make the changes in the VA's EEO system.
Now that the VA appears to accept and perhaps even embrace the need for change in the way it deals with sexual harassment and other discrimination cases, this is a work in progress. And this subcommittee is committed to see it finished for the sake of the VA employees and the people they so ably serve: our Nation's veterans.
Page 73 PREV PAGE TOP OF DOC I mentioned earlier that I think there's a wide gap of broken trust between the VA and this committee. We've talked over and over about culture that exists. We're beginning to experience that culture more and more. The culture is there, is an incorrect culture, is a culture that this committee is not going to tolerate. And I've had some very frank discussion with the Secretary about that.
I do appreciate your report and the effort that you folks have put into it and in doing what we have asked you to do. I will say that this panel is dismissed. And members will have 5 legislative days to submit questions to the record for the hearing witnesses.
The hearing is adjourned.
[Whereupon, at 11:58 a.m., the subcommittee was adjourned.]