VA Testimony of Eugene A. Brickhouse before Congress on September 30, 1999

United States Department of Veterans Affairs

STATEMENT OF
THE HONORABLE
EUGENE A. BRICKHOUSE
ASSISTANT SECRETARY FOR HUMAN RESOURCES AND ADMINISTRATION
DEPARTMENT OF VETERANS AFFAIRS
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
COMMITTEE ON VETERANS' AFFAIRS
U. S. HOUSE OF REPRESENTATIVES

September 30, 1999

Mr. Chairman and members of the Committee, I appear before you today on behalf of the Secretary of Veterans Affairs to testify about the Department of Veterans Affairs’ (VA) compliance with Public Law 105-114, the Veterans Benefits Act of 1997, which established the Office of Resolution Management (ORM) and the Office of Employment Discrimination Complaint Adjudication (OEDCA).

On November 21, 1997, when Congress enacted the Public Law, VA had already aggressively developed and begun to radically restructure the Equal Employment Opportunity (EEO) discrimination complaint program under the Department’s "Plan for Transformation." This plan, which was consistent with the Public Law, called for separation of the EEO discrimination complaint program from field and Headquarters’ facilities, removal of the designation of EEO Officer from facility directors and certain headquarters executives, and creation of two independent structures, ORM and OEDCA, to process complaints of employment discrimination. I am pleased to report that ORM and OEDCA are fully operational and in full compliance with the Public Law.

Communicating Public Law 105-114

To inform VA employees about the change, we used every communication tool available to announce the new complaint resolution process. For example, we distributed a tri-fold pamphlet to employees, noted the change on employee paystubs, announced ORM by memorandum, published articles in VA’s national magazine, "Vanguard," and created a website, which I am pleased to report that employees have accessed nearly 13,000 times since January 1999. We developed a training video, scheduled satellite broadcasts, provided information to VA’s national business video, "The VA Report," conducted facility training, and published a standard operating procedures manual.

Prevention of discrimination within the Department is a matter of extreme importance to Secretary West and other VA managers. Prevention, of course, requires more than simply a change in how we process complaints. It requires innovative outreach activities. For example, ORM and OEDCA publish digests that summarize the reasons for final decisions in selected cases, and that analyze root causes to inform VA managers about what is at the heart of these workplace disputes. These digests serve to educate employees and managers on discrimination in the workplace, the conduct that leads to a perception of discrimination, and the appropriate venues to resolve workplace disputes that fall outside of the discrimination complaint process.

Specialized Communications on Sexual Harassment Prevention

Throughout implementation, the Secretary of Veterans Affairs was keenly mindful of concerns with sexual harassment. In the past, VA communicated a "zero tolerance" policy to all employees. On September 22, 1999, the Secretary communicated his prevention of harassment and discrimination policy to employees by memorandum. He embraces a three-part fundamental principle. The first is prevention. We are accomplishing this through continuous and timely training programs. For example, we completed the retraining of all VA employees on sexual harassment. We developed an EEO Deskbook for employees and supervisors on employment discrimination and aired satellite broadcasts on discrimination. The Deskbook and the broadcasts explain the procedures available to employees. Further, through our Employee Education System, we developed a videotape titled "The VA’s New Discrimination Complaint Process & The Law of EEO." This videotape was distributed to all VA facilities as one of several tools to uniformly train employees and managers. We developed and published a booklet for VA employees on the discrimination complaint procedures and prevention of harassment. The Veterans Health Administration staff worked diligently to develop a computer-based training module for its employees. The module explains sexual harassment, administers a test to participants, and certifies successful completion of training. The Veterans Benefits Administration (VBA) trained its employees via satellite broadcast. Office of Resolution Management and Office of General Counsel officials assisted VBA in providing sexual harassment training. In addition, ORM assisted the National Cemetery Administration in training its employees.

Rapid Response Teams

The second principle the Secretary has embraced regarding sexual harassment and discrimination is immediate and aggressive executive action through deployment of rapid response teams that have independent and mandated authority to investigate, to the fullest, charges against senior managers. Team members are unbiased, impartial, and not influenced by any VA official in conducting investigations. When an allegation involves the direct, personal conduct of a facility director, assistant/associate director or chief of staff, the allegation is immediately brought to my attention for a determination of whether a rapid response team should be deployed. If deployed, the team is generally comprised of a member of the Office of General Counsel, the Office of Human Resources Management, the Office of Resolution Management, and other agency officials as appropriate.

When an allegation does not involve senior managers, ORM EEO counselors automatically elevate sexual harassment allegations to the ORM Regional EEO Officer to determine if any additional intervention is necessary by facility or network/area officials. ORM maintains a close vigilance of the allegation and the resulting action. ORM also works closely with the Office of Inspector General on inquiries that office receives concerning sexual harassment or other forms of alleged discriminatory misconduct.

Executive Accountability

Third, the Secretary has communicated executive accountability. Failure of executives to manage ethically will result, and has resulted, in appropriate disciplinary and adverse action.

We place a strong emphasis on the performance requirements of executives. Within VA, before an executive can be considered for a pay adjustment, bonus or award, the appropriate Under Secretary or Assistant Secretary must certify in writing the specific accomplishments of the executive in fostering an environment that is free of discrimination. Failure to certify such accomplishments results in the executive not being considered for the adjustment, bonus or award.

We developed an in-depth, on-site review guide that explains how we conduct EEO climate surveys, what procedures we will use and what must be in place to satisfy "compliance." We communicate the survey results to the highest level officials within the Department. The Office of Equal Opportunity ensures follow-up on any recommendations contained in the report. Failure to implement the recommendations results in a non-compliance report and additional intervention is then taken by VA’s most senior officials.

The Department engaged in executive-level meetings with network and facility directors to develop and implement strategies to ensure that positive actions are taken to improve the working environment and reduce perceptions of discrimination. These meetings resulted from data contained in the root cause quarterly report that ORM generates. On a higher level, facility and network/area directors are including EEO officials in strategic planning sessions, and are actively working with the officials in the Office of Equal Opportunity and ORM in identifying trends, solutions, and training initiatives. In some cases, we collaboratively provide teams to facilities to conduct climate assessments and employee focus groups.

Alternative Dispute Resolution

The Department is continuing its efforts to increase Alternative Dispute Resolution (ADR) use, particularly in workplace disputes arena. ADR is seen as a way to resolve workplace issues in a more timely, less costly, and less adversarial manner than litigation or administrative adjudication, and a Department-wide directive in support of ADR will soon be issued. As you are aware, ORM has several ongoing ADR initiatives of its own, and over the past several months, ORM has been working collaboratively with VA organizations, its administrations, local facilities, and labor to more fully develop ORM’s Mediation Program. This Program is expected to be a critical element in ORM’s dispute resolution system, and relies on local facility involvement in the mediation process.

Earlier this year, ORM piloted two mediation programs in our Bay Pines and Hines field offices. In these pilots, participants from the local medical centers, regional office, regional counsel, labor unions, and other VA organizations, worked together with representatives from ORM field offices and headquarters, to fashion mediation programs for their geographic servicing area that are tailored to meet their needs, enhance communication between the various players, and maximize the ADR resources. Several ORM employees received Mediator Skills Training during the pilots. The success of these pilots resulted in deployment of the piloted program model, and the lessons learned, to the remaining ORM sites. We anticipate complete implementation in July 2000. ORM’s resolution of informal complaints is 67 percent.

On another front, VHA recently created an ADR Steering Committee to develop an action plan for establishing an effective and comprehensive approach to ADR that will ensure all medical centers have operating mediation programs in their facilities by September 30, 2000. VBA is working on a similar initiative. ORM is participating in the VHA Steering Committee and several other similar committees to help ensure that a quality VA ADR program is implemented that operates successfully across organizational lines. ORM is also working on several other initiatives, including a project in collaboration with VA’s Learning University and the Department’s Dispute Resolution Specialist to develop an "Introduction to Mediation" videotape. This videotape will provide VA employees a basic introduction to mediation, how it works and its benefits. Several local facilities have indicated a need for a videotape of this type to educate employees about the benefits of mediation in helping resolve workplace disputes. Through these initiatives, and other collaborative efforts, we will strive to reach an overall 75 percent goal by the end of Fiscal Year 2000.

We enjoy an outstanding working relationship with the Equal Employment Opportunity Commission (EEOC) on streamlining the EEO discrimination complaint process. In August, we detailed two employees to the EEOC and National Partnership for Reinventing Government’s taskforce to participate in identifying prevention strategies and developing additional dispute resolution mechanisms. The Deputy Assistant Secretary for Resolution Management is serving as a member of the Senior Leadership Council responsible for providing oversight of the taskforce. EEOC routinely includes the Deputy Assistant Secretary for Resolution Management in discussions, planning sessions, and working groups dedicated to improving the discrimination complaint process.

Booz-Allen & Hamilton Findings

Mr. Chairman, I would like to take this opportunity to respond to the findings made by Booz-Allen & Hamilton, the contractor who completed the assessment of the Department’s complaint resolution system. We studied the findings very carefully and find that the contractor did an outstanding job in assessing our environment in 1998 and in providing a follow-up report on April 30, 1999. We are particularly pleased that Booz-Allen & Hamilton noted that VA’s complaint resolution system is superior to best practice organizations in government and the private sector. With the creation of ORM and OEDCA, employees view the resolution system as independent, fair, and they trust the new process. In less than one year’s time, we have fully implemented every provision of the Public Law. The Secretary gave the establishment of ORM and OEDCA the highest priority. He ensured that both organizations had the necessary resources they needed to become fully operational. I would like to especially note that during the week of September 13, 1999, the EEOC Regional Office in New York conducted a full program assessment of the ORM Field Office in Lyons, New Jersey, one of the larger ORM Field Offices. Their report will advise EEOC headquarters that their interviews with employees at different VA facilities in Pennsylvania, New York, and New Jersey revealed that employees have confidence in ORM and OEDCA, believe they are impartial and that they process complaints fairly. Yet, their report will go further to state that the independent operation of ORM and the nationwide organizational structure is a model that the government should consider implementing throughout the Federal sector.

Booz-Allen & Hamilton noted that ORM improved processing timeliness and has mechanisms in place to address the backlog in complaints. ORM increased its staffing levels for investigators and intake specialists, developed generalist positions and optimized its investigative procedures to include desk, on-site, fact-finding and videoconferencing investigations. ORM eliminated nearly 150 days in processing complaints. We plan to be in full compliance of the EEOC mandate of 180 days by Spring of 2000. These are monumental accomplishments for the Department and the Committee.

Since the April 30 report from Booz-Allen & Hamilton, we implemented a number of other initiatives to further ensure that we meet timeliness, training, and communications recommendations. We monitor informal and formal complaint activity by facility, network, and by race, sex, national origin, disability, age, and reprisal.

OEDCA Accomplishments

OEDCA has effectively addressed all of the Public Law requirements relating to adjudication; and is effectively managing the final agency decision process in the Department.

OEDCA is operating as the neutral and independent decision-maker envisioned by the Public Law. In fact, OEDCA's independence was recognized in Booz-Allen & Hamilton's, April 30, 1999, report. By way of example, the report pointed to OEDCA's acceptance rate of recommended findings of discrimination by EEOC administrative judges as evidence of its effectiveness in remaining neutral and independent from VA management. Since commencing operation, OEDCA has accepted, in whole or in part, approximately 64 percent of EEOC recommendations, as compared with the Department's historic acceptance rate of 20 percent. The government-wide acceptance rate, according to the General Accounting Office, is 36 percent.

OEDCA's acceptance rate, however, is not the only evidence of its independence. The Booz-Allen & Hamilton report found through its focus groups that VA’s employees now perceive OEDCA and ORM as independent entities. Such perceptions are just as important as the reality in gaining employee confidence in the VA's new complaint resolution system.

A frequent criticism of the former EEO complaint adjudication process was the huge backlog of cases awaiting final decision, and consequently, the lengthy delays complainants had to endure before receiving their decision. I am pleased to report that OEDCA has significantly reduced that backlog since it assumed that authority from the Office of General Counsel (OGC) in February 1998. At that time, there were 446 cases awaiting adjudication. Many of those cases had been pending in OGC for more than a year. Since commencing operation, OEDCA has achieved a remarkable 80.5 percent reduction in the backlog. As of September 1^st, its inventory is down to a manageable workload of 87 cases.

In addition to OEDCA's success in reducing the backlog, it has also been able to reduce substantially the Department's processing time during the adjudication phase of the complaint process. When OEDCA began operations, the Department's average processing time during that phase was approximately nine months. Since then, that figure has decreased to 39 days. I am pleased to report that the Department's average processing time during the adjudication phase is now within the time frames specified in the EEOC governing regulations.

As required by Public Law 105-114 and procedures approved by the Secretary, OEDCA plays a pivotal role in ensuring appropriate follow-up action once there has been an administrative or judicial finding of retaliation or intentional discrimination. OEDCA and other appropriate elements within the Department have established and implemented a procedure to ensure that facilities in which discrimination or retaliation occurs take or propose appropriate action involving the individual or individuals responsible for the unlawful conduct. It is OEDCA's responsibility to initiate this procedure by reporting such cases to the Secretary, who in turn instructs the appropriate official in Central Office to ensure that proper follow-up action is taken, including discipline in appropriate cases.

In addition to issuing decisions, OEDCA is also engaged in outreach efforts to ensure that lessons learned from its decisions are made available throughout the Department, and not just to the parties involved in a particular complaint. It does this by publishing a quarterly digest. The OEDCA Digest summarizes selected decisions in a variety of cases in which discrimination is and is not found. It also provides information concerning new regulations and guidance from the EEOC, new case law, and other items likely to be of interest to employees, VA managers, and the Department's EEO professionals. OEDCA believes that its digest, through the sharing of information and lessons learned, will help reduce the number of complaints filed in the future.

Summary

We have learned from our past experience. We are doing more. We are incorporating prevention strategies, alternative dispute resolution, and other initiatives to reduce discrimination complaints. ORM crafted an integrated strategic plan in conformance with the Government Performance and Results Act. The plan articulates mission critical performance targets such as quality, timeliness, customer service, and program evaluation. ORM will be critically evaluated to be sure that they are providing the services needed by our employees. Already, ORM is working with EEOC and other organizations on development of a program evaluation model that they will use to evaluate their efficiency and effectiveness. An important aspect of program evaluation will include measuring the costs to process complaints. In this regard, ORM is working on its activity based costing model. Once development of this model is complete, VA managers and employees will have a full appreciation of how much it costs to process complaints of employment discrimination.

We incorporated ORM’s performance goals into the Department’s strategic plan. We are devoting resources, solely dedicated to preventing discrimination complaints. We conduct complaint trend analyses, identify potential problem areas, discuss and implement preventive strategies, and follow-up on recommendations to determine effectiveness. Of critical importance, the Veterans Health Administration and VA Headquarters are passing down the costs to operate ORM and OEDCA to local facilities. This practice provides financial incentive to facility directors to resolve workplace disputes that end up in the EEO discrimination complaints process. To continue our efforts to have the best program in government, we are inviting Booz-Allen & Hamilton to conduct a follow-up evaluation in June 2000 on ORM’s service delivery and customer feedback initiatives.

Finally, Mr. Chairman, we believe these collective efforts will ensure that the Department of Veterans Affairs is a leader in the Federal community in providing a working environment that is free of employment discrimination, an environment where our employees can provide full service to veterans without fear of being harassed or reprised against.

My colleagues and I will be happy to answer any questions you may have.