Federal Manager's Daily Report

In defending itself against assertions that it is too quick to settle personnel disputes with its employees, the VA has said it takes into consideration that agencies such as the MSPB and the EEOC encourage such agreements, along with the potential direct and indirect costs of continuing such cases through the legal process.

VA said at a House hearing that such considerations include the “administrative resources needed to investigate and process a complaint, loss of employee productivity during depositions and trial testimony, travel costs, deposition and transcript costs, payments of damages and attorney’s fees, decreased morale and increased divisiveness.”

In addition, “protracted litigation requires the dedication of substantial resources from all parts of the department, including human resources, contracting, Office of Information and Technology, and Office of General Counsel, delaying work on other critical initiatives such as hiring to fill critical vacancies . . . it is incumbent on every facility manager to factor these considerations into settlement,” an agency witness said.

VA said that EEO cases—which account for the large majority of personnel disputes there–cost at least $35,000 each to process and investigate the complaint from the time the complaint is initiated until it either goes to the EEOC for a hearing or to VA’s office of discrimination complaint adjudication for a final agency decision.

“This does not include the sunk cost in time the employee and managers spend during the investigation. In addition, should the complaint go forward to the EEOC for hearing, VA incurs additional costs in depositions and other discovery as well as travel costs for VA witnesses. Furthermore, in those cases in which VA does not prevail, VA would be liable for additional monetary costs such as back-pay, compensatory damages, interest, and attorney fees,” it said.

It added that due to the length of such cases, often two years until the EEOC holds a hearing, the department’s ability to defend itself is sometimes compromised by unavailability of witnesses who have retired or otherwise left federal service. Neither the VA nor the EEOC can compel that witness to testify in connection with an EEO complaint even if that individual has been named as a responsible management official, it said.