UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: Adoption of Fifth Circuit Employment Dispute Resolution Plan
GENERAL ORDER
The Fifth Circuit Judicial Council unanimously adopted the attached Fifth Circuit
Employment Dispute Resolution (EDR) Plan and instructed all courts within the Fifth Circuit
to enter an order adopting this Plan, or submit a modified Plan for Council approval. After
presentation to and upon unanimous agreement of the en banc court,
IT IS ORDERED that this Plan is ADOPTED for all complaints filed on or after
February 19, 2020, for all court units of the United States District Court for the Eastern
District of Louisiana.
20th day of March, 2020.
New Orleans, Louisiana, this _______
_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Fifth Circuit Employment Dispute Resolution Plan
Effective for Complaints filed on or after February 19, 2020
FIFTH CIRCUIT
EMPLOYMENT DISPUTE RESOLUTION PLAN
I. INTRODUCTION
The Federal Judiciary is committed to a workplace of respect, civility, fairness, tolerance,
and dignity, free of discrimination and harassment. These values are essential to the
Judiciary, which holds its Judges and Employees to the highest standards. All Judges and
Employees are expected to treat each other accordingly.
This Plan provides options for the reporting and resolution of allegations of wrongful
conduct (discrimination, sexual, racial, or other discriminatory harassment, abusive
conduct, and retaliation) in the workplace. Early action is the best way to maintain a safe
work environment. All Judges, Employing Offices, and Employees have a responsibility
to promote workplace civility, prevent harassment or abusive conduct, and to take
appropriate action upon receipt of reliable information indicating a likelihood of wrongful
conduct under this Plan. See Code of Conduct for Judicial Employees, Canon 3(C).
This Plan applies to all Judges, current and former Employees (including all law clerks;
chambers employees; paid and unpaid interns, externs, and other volunteers who have
signed a gratuitous services agreement; federal public defender employees; and probation
and pretrial services employees), and applicants for employment who have been
interviewed. The following persons cannot seek relief under this Plan: Judges, applicants
for judicial appointment, Criminal Justice Act panel attorneys and applicants, investigators
and service providers, community defender employees, volunteer mediators, and any other
non-Employees not specified above. See Appendix 1 for full definitions of Judges and
Employees.
II. WRONGFUL CONDUCT
A. This Plan prohibits wrongful conduct that occurs during the period of employment
or the interview process (for an applicant). Wrongful conduct includes:
• discrimination;
• sexual, racial, and other discriminatory harassment;
• abusive conduct; and
• retaliation (including retaliation as described in the Whistleblower Protection
Provision in Guide to Judiciary Policy, Vol. 12, § 220.10.20(c)).
Wrongful conduct can be verbal, non-verbal, physical, or non-physical. Each of
these categories of wrongful conduct is defined, and some examples are provided,
on pages 2-3.
Wrongful conduct also includes conduct that would violate the following
employment laws and policy, as applied to the Judiciary by Judicial Conference
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policy:
• Title VII, Civil Rights Act of 1964;
• Age Discrimination in Employment Act of 1967;
• Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973;
• Family and Medical Leave Act of 1993;
• Uniformed Services Employment and Reemployment Rights Act of 1994;
• Whistleblower Protection Provision (Guide, Vol. 12, § 220.10.20(c));
• Worker Adjustment and Retraining Notification Act;
• Occupational Safety and Health Act; and
• The Employee Polygraph Protection Act of 1988.
See Guide, Vol. 12, Ch. 2.
B. Discrimination is an adverse employment action that materially affects the terms,
conditions, or privileges of employment (such as hiring, firing, failing to promote,
or a significant change in benefits) based on the following Protected Categories:
race, color, sex, gender, gender identity, pregnancy, sexual orientation, religion,
national origin, age (40 years and over),1 or disability.
C. Discriminatory harassment occurs when a workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the employment and create an abusive working
environment. Discriminatory harassment includes sexual harassment.
Examples of repeated or persistent conduct that may give rise to discriminatory
harassment: racial slurs; derogatory comments about a person’s ethnicity, culture,
or foreign accent; or jokes about a person’s age, disability, or sexual orientation.
Examples of repeated or persistent conduct that may give rise to sexual harassment:
suggestive or obscene notes, emails, text messages, or other types of
communications; sexually degrading comments; display of sexually suggestive
objects or images; unwelcome or inappropriate touching or physical contact;
unwelcome sexual advances or propositions; inappropriate remarks of a sexual
nature or about physical appearance; or employment action affected by submission
to, or rejection of, sexual advances.
D. Abusive Conduct is a pattern of demonstrably egregious and hostile conduct not
based on a Protected Category that unreasonably interferes with an Employee’s
work and creates an abusive working environment. Abusive conduct is threatening,
oppressive, or intimidating.
Abusive conduct does not include communications and actions reasonably related
to performance management, including but not limited to: instruction, corrective
1
The age discrimination provision does not apply to hiring, retirement, or separation of probation and pretrial services
officers under 5 U.S.C. chapters 83 and 84.
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criticism, and evaluation; performance improvement plans; duty assignments and
changes to duty assignments; office organization; progressive discipline; and
adverse action.
E. Retaliation is a materially adverse action taken against an Employee for reporting
wrongful conduct; for assisting in the defense of rights protected by this Plan; or for
opposing wrongful conduct. Retaliation against a person who reveals or reports
wrongful conduct is itself wrongful conduct.
III. REPORTING WRONGFUL CONDUCT
The Judiciary encourages early reporting and action on wrongful conduct. Employees who
experience, observe, or learn of reliable evidence of sexual, racial, or other discriminatory
harassment or abusive conduct are strongly encouraged to take appropriate action,
including reporting it to a supervisor, human resources professional, Unit Executive,
Employment Dispute Resolution (“EDR”) Coordinator, Chief Judge, Chief Circuit Judge,
Circuit Director of Workplace Relations, or to the national Office of Judicial Integrity. See
Code of Conduct for Judicial Employees, Canon 3(C). Employees are also encouraged to
report wrongful conduct in the workplace by non-Employees. Court and chambers’
confidentiality requirements do not prevent any Employee—including law clerks—from
revealing or reporting wrongful conduct by any person.
IV. OPTIONS FOR RESOLUTION
The Judiciary’s goal is to address wrongful conduct as soon as possible and to provide
multiple, flexible options for doing so. An Employee who believes he or she has been the
object of wrongful conduct is always free to address a conduct issue directly with the
person who allegedly committed wrongful conduct or to contact a colleague, supervisor,
Unit Executive, Judge, Chief Judge, or other individual to discuss or address the situation.
This Plan provides the following additional options for Employees who believe they have
been the object of wrongful conduct, and Employees may choose the option(s) that best fit
their needs and comfort level.
A. Plan Options. This Plan provides three options to address wrongful conduct, as
explained in detail below:
1. Informal Advice
2. Assisted Resolution
3. Formal Complaint
B. General Rights. All options for resolution are intended to respect the privacy of all
involved to the greatest extent possible, and to protect the fairness and thoroughness of the
process by which allegations of wrongful conduct are initiated, investigated, and ultimately
resolved.
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1. Confidentiality. All individuals involved in the processes under this Plan
must endeavor to maintain confidentiality to the extent possible and
appropriate under the circumstances.
During Informal Advice, requests for complete confidentiality should be
honored if possible, and an EDR Coordinator or Director of Workplace
Relations should not disclose to others the possibility of an EDR matter, the
identity of the Employee who sought advice, or the alleged wrongful
conduct.
During Assisted Resolution and the Formal Complaint process, information
will be shared only to the extent necessary and only with those whose
involvement is necessary to address the situation.
Any person involved in mediation must not disclose any information or
records obtained through mediation except as necessary to consult with the
parties or their representatives, and then only with notice to all parties; or as
the information or records are otherwise discoverable in a Formal Complaint
proceeding.
In all circumstances, including during Informal Advice, an assurance of
confidentiality must yield when there is reliable information of wrongful
conduct that threatens the safety or security of any person or that is serious
or egregious such that it threatens the integrity of the Judiciary.
Confidentiality obligations in the Code of Conduct for Judicial Employees
concerning use or disclosure of confidential information received in the
course of official duties do not prevent nor should they discourage
Employees from reporting or disclosing wrongful conduct, including sexual,
racial, or other forms of discriminatory harassment by a Judge, supervisor,
or other person.
Supervisors, Unit Executives, and Judges must take appropriate action when
they learn of reliable information of wrongful conduct, such as sexual, racial,
or other discriminatory harassment, which may include informing the
appropriate Chief Judge.
2. Impartiality. All investigations, hearings, and other processes under this
Plan must be conducted in a thorough, fair, and impartial manner. The EDR
Coordinator, the Circuit Director of Workplace Relations, and the Presiding
Judicial Officer must be impartial and may not act as an advocate for either
Party. The EDR Coordinator, Circuit Director of Workplace Relations, or
Presiding Judicial Officer must recuse if he or she participated in, witnessed,
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or was otherwise involved with the conduct or employment action giving rise
to the claim. Recusal of these individuals is also required if the matter creates
an actual conflict or the appearance of a conflict.
3. Right to representation. Both the Employee and the Employing Office
responsible for providing any remedy have the right to be represented by an
attorney or other person of their choice at their own expense. Another
Employee may assist the Employee or Employing Office if doing so will not
constitute a conflict of interest or unduly interfere with his or her duties, as
determined by the assisting Employee’s appointing officer.
4. Interim Relief. An Employee, including a law clerk or other chambers
employee, who pursues any of the options under this Plan may request
transfer, an alternative work arrangement, or administrative leave if the
Employee alleges egregious conduct by a supervisor, Unit Executive, or
Judge that makes it untenable to continue working for that person. Any such
request must be made to the Unit Executive or Chief Judge, as appropriate,
to determine appropriate interim relief, if any, taking into consideration the
impact on any Employing Office.
5. Allegations Regarding a Judge. An Employee alleging that a Judge has
engaged in wrongful conduct may use any of the options for resolution as set
forth in Section C. An Employee may also file a complaint under the Judicial
Conduct and Disability Act, 28 U.S.C. §§ 351-364.
C. Specific Options
1. Informal Advice. An Employee may contact an EDR Coordinator, Circuit
Director of Workplace Relations, or the national Office of Judicial Integrity
for confidential advice and guidance (see § IV.B.1) about a range of topics,
including:
• the rights and protections afforded under this Plan, the Judicial
Conduct and Disability Act, and any other processes;
• ways to respond to wrongful conduct as it is happening; and/or
• options for addressing the conduct, such as informal resolution,
participating in Assisted Resolution, or pursuing a Formal Complaint
under this Plan, a complaint under the Judicial Conduct and Disability
Act, or other processes.
2. Assisted Resolution. Assisted Resolution is an interactive, flexible process
that may include:
• discussing the matter with the person whose behavior is of concern;
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• conducting a preliminary investigation, including interviewing
persons alleged to have violated rights under this Plan and witnesses
to the conduct;
• engaging in voluntary mediation between the persons involved;
and/or
• resolving the matter by agreement.
a. To pursue this option, an Employee must contact an EDR Coordinator
or Circuit Director of Workplace Relations and complete a “Request for Assisted
Resolution” (Appendix 2). An Employee asserting any claim of abusive conduct
must first use Assisted Resolution before filing a Formal Complaint. Filing a Request
for Assisted Resolution does not toll (extend) the time for filing a Formal Complaint
under § IV.C.3 unless one of the Parties requests, and the Chief Judge or Presiding
Judicial Officer grants, an extension of time for good cause, as permitted in
§ IV.C.3.a.
b. If the allegations concern the conduct of a Judge, the Chief Judge of
the appropriate district or circuit Court must be notified and will be responsible for
coordinating any Assisted Resolution and/or taking any other action required or
appropriate under the circumstances. See, e.g., Rules for Judicial-Conduct and
Judicial-Disability Proceedings.
c. If the allegations concern the conduct of an Employee, the EDR
Coordinator or Circuit Director of Workplace Relations will coordinate Assisted
Resolution and must notify the appropriate Unit Executive(s). The Unit Executive
is responsible for assessing the allegation(s) and taking appropriate steps to resolve
the matter. If the allegations concern the conduct of a Unit Executive, the EDR
Coordinator must notify the Chief Judge, who is responsible for assessing the
allegation(s) and addressing the matter as appropriate.
d. The Unit Executive or Chief Judge responsible for assessing the
allegations, as indicated in (b) and (c) above, may deny the Request for Assisted
Resolution at any time if he or she concludes it is frivolous; it does not allege
violations of the rights or protections in this Plan; the alleged conduct arises out of
the same facts and circumstances, and was resolved by, a previous EDR Complaint
or other claim process or procedure; or on other appropriate grounds.
e. If Assisted Resolution is successful in resolving the matter, the Parties
will so acknowledge in writing.
f. The Parties will determine when to conclude the Assisted Resolution
process. If Assisted Resolution is not successful in resolving the matter, the EDR
Coordinator or Circuit Director of Workplace Relations will advise the Employee
of his or her rights to file a Formal Complaint and/or pursue action under the Judicial
Conduct and Disability Act, if applicable, or any other processes.
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3. Filing a Formal Complaint. An Employee may file a Formal Complaint
(“Complaint”) with any of the Court’s EDR Coordinators to address a claim
of wrongful conduct.
a. To file a Complaint, an Employee must submit a “Formal Complaint”
(Appendix 3) to any of the Court’s EDR Coordinators within 180 days after the
alleged wrongful conduct or within 180 days of the time the Employee becomes
aware or reasonably should have become aware of such wrongful conduct. Use of
the Informal Advice or Assisted Resolution options does not toll (extend) this 180-
day deadline unless the Chief Judge of the Court or the Presiding Judicial Officer
grants an extension of time for good cause.
b. An Employee asserting any claim of abusive conduct must first use
Assisted Resolution before filing a Formal Complaint.
c. The Employee filing the Complaint is called the Complainant. The
Party responding to the Complaint is the Employing Office that is responsible for
providing any appropriate remedy and is called the Respondent. The Complaint is
not filed against any specific individual(s) but against the Employing Office.
d. Complaint Regarding a Judge. An Employee alleging that a Judge
has engaged in wrongful conduct may file a Formal Complaint under this Plan. The
EDR Coordinator must immediately provide a copy of the Complaint to the Chief
Circuit Judge (or the next most-senior active Circuit Judge, if the allegation is
against the Chief Circuit Judge), who will oversee the EDR Complaint process. If
a District, Magistrate, or Bankruptcy Judge is the subject of the Complaint, the EDR
Coordinator must also provide a copy of the Complaint to the Chief District Judge
(unless the Chief District Judge is the subject of the Complaint, in which case the
Complaint will be given only to the Chief Circuit Judge).
If a Judge becomes the subject of both a Complaint under this Plan and a complaint
under the Judicial Conduct and Disability Act, the Chief Circuit Judge will
determine the appropriate procedure for addressing both, which may include
holding the EDR claim in abeyance and determining how best to find any common
issues of fact, subject to all requirements of the Judicial Conduct and Disability Act,
the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and, as
practicable, this EDR Plan. Regardless of whether there is a formal complaint under
the Judicial Conduct and Disability Act, the Chief Circuit Judge should consider the
need for any necessary or appropriate interim relief.
e. Formal Complaint Procedures and Procedural Rights
i. Appointment of Presiding Judicial Officer. Upon receipt of a
Complaint, the EDR Coordinator will immediately send a copy of the
Complaint to the Chief Judge of the Court, who will appoint a Presiding
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Judicial Officer. The Presiding Judicial Officer will be a Judge in the Court
or, when appropriate, a Judge from another Court (with the consent of the
respective Chief Judge of that Court).
ii. Presiding Judicial Officer. The Presiding Judicial Officer
oversees the Complaint proceeding. The Presiding Judicial Officer will
provide a copy of the Complaint to the head of the Employing Office against
which the Complaint has been filed (Respondent), except when the Presiding
Judicial Officer determines for good cause that the circumstances dictate
otherwise. The Presiding Judicial Officer must provide the individual alleged
to have violated rights under this Plan notice that a Complaint has been filed
and the nature and substance of the Complaint allegations.
The Presiding Judicial Officer will provide for appropriate investigation and
discovery, allow for settlement discussions, determine any written
submissions to be provided by the Parties, determine if a hearing is needed,
determine the time, date, and place of the hearing, issue a written decision,
and, if warranted, order remedies.
iii. Disqualification and Replacement. Either Party may seek
disqualification of the EDR Coordinator or the Presiding Judicial Officer by
written request to the Chief Judge, explaining why the individual should be
disqualified.
If the Presiding Judicial Officer is disqualified, the Chief Judge will designate
another Judge to serve as Presiding Judicial Officer. If the EDR Coordinator
is disqualified, the Chief Judge will appoint one of the alternate EDR
Coordinators or, if available, an EDR Coordinator from another Court (with
the consent of the respective Chief Judge of that Court).
iv. Response. The Respondent may file a Response to the
Complaint with the EDR Coordinator within 30 days of receiving the
Complaint. The EDR Coordinator must immediately send the Response to
the Presiding Judicial Officer and to the Complainant.
v. Investigation and Discovery. The Presiding Judicial Officer
will ensure that the allegations are thoroughly, impartially, and fairly
investigated, and may use outside trained investigators if warranted. The
investigation may include interviews with persons alleged to have violated
rights under this Plan and witnesses, review of relevant records, and
collecting documents or other records. The Presiding Judicial Officer will
provide for such discovery to the Complainant and Respondent as is
necessary and appropriate. The Presiding Judicial Officer will also determine
what evidence and written arguments, if any, are necessary for a fair and
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complete assessment of the allegations and response.
vi. Case preparation. The Complainant may use official time to
prepare his or her case, so long as it does not unduly interfere with the
performance of duties.
vii. Extensions of time. Any request for an extension of time must
be in writing. The Presiding Judicial Officer may extend any of the deadlines
set forth in this EDR Plan for good cause, except for the deadline to issue a
written decision, which may be extended only by the Chief Judge.
viii. Established Precedent. In reaching a decision, the Presiding
Judicial Officer should be guided by judicial and administrative decisions
under relevant rules and statutes, as appropriate. The Federal Rules of
Evidence and any federal procedural rules do not apply.
ix. Notice of Written Decision. The EDR Coordinator or Presiding
Judicial Officer will immediately send a copy of the written decision to the
Parties, the Chief Judge of the Court, and to any individual alleged to have
violated rights protected by this Plan. The EDR Coordinator will inform the
Parties of appeal rights, procedures, and deadlines.
f. Resolution of Complaint Without a Hearing. After notifying the
Parties and giving them an opportunity to respond, the Presiding Judicial Officer
may resolve the matter without a hearing.
i. The Presiding Judicial Officer may dismiss a Complaint and
issue a written decision at any time in the proceedings on the grounds that: it
is untimely filed, is frivolous, fails to state a claim, or does not allege
violations of the rights or protections in this Plan; the alleged conduct arises
out of the same facts and circumstances, and was resolved by, a previous
EDR Complaint or other claim process or procedure; or on other appropriate
grounds.
ii. After completion of investigation and discovery, the Presiding
Judicial Officer may, on his or her own initiative or at the request of either
Party, issue a written decision if the Presiding Judicial Officer determines
that no relevant facts are in dispute and that one of the Parties is entitled to a
favorable decision on the undisputed facts.
iii. The Parties may enter into an agreed written settlement if
approved in writing by the Presiding Judicial Officer and the Chief Judge.
g. Resolution of Complaint With a Hearing. If the Complaint is not
resolved in its entirety by dismissal, Assisted Resolution, decision without a
9
hearing, or settlement, the Presiding Judicial Officer will order a hearing on the
merits of the Complaint.
i. Hearing. The hearing will be held no later than 60 days after
the filing of the Complaint unless the Presiding Judicial Officer extends the
deadline for good cause. The Presiding Judicial Officer will determine the
place and manner of the hearing.
ii. Notice. The Presiding Judicial Officer must provide reasonable
notice of the hearing date, time, and place to the Complainant, the
Respondent, and any individual(s) alleged to have violated the
Complainant’s rights.
iii. Right to Present Evidence. The Complainant and Respondent
have the right to present witnesses and documentary evidence and to examine
adverse witnesses.
iv. Record of Proceedings. A verbatim record of the hearing must
be made and will be the official record of the proceeding. This may be a
digital recording or a transcript.
v. Written Decision. The Presiding Judicial Officer will make
findings of fact and conclusions of law and issue a written decision no later
than 60 days after the conclusion of the hearing, unless an extension for good
cause is granted by the Chief Judge.
h. Remedies. When the Presiding Judicial Officer finds that the
Complainant has established by a preponderance of the evidence (more likely than
not) that a substantive right protected by this Plan has been violated, the Presiding
Judicial Officer may direct the Employing Office to provide remedies for the
Complainant. The remedies are limited to providing relief to the Complainant,
should be tailored as closely as possible to the specific violation(s) found, and take
into consideration the impact on any Employing Office. The Chief Judge and
Employing Office (Respondent) must take appropriate action to carry out the
remedies ordered in the written decision, subject to any applicable policies or
procedures.
i. Allowable Remedies may include:
• placement of the Complainant in a position previously denied;
• placement of the Complainant in a comparable alternative position;
• reinstatement to a position from which the Complainant was previously
removed;
• prospective promotion of the Complainant;
• priority consideration of the Complainant for a future promotion or
position;
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• back pay and associated benefits, when the statutory criteria of the Back
Pay Act are satisfied2;
• records modification and/or expungement;
• granting of family and medical leave;
• any reasonable accommodation(s); and
• any other appropriate remedy to address the wrongful conduct.
ii. Unavailable Remedies. Other than under the Back Pay Act,
monetary damages are not available. The Presiding Judicial Officer may
award attorney’s fees only if the statutory requirements under the Back Pay
Act are satisfied.
iii. Discipline. The issue in an EDR Complaint is whether the
Employing Office is responsible for the alleged conduct; it is not an action
against any individual. The Presiding Judicial Officer lacks authority to
impose disciplinary or similar action against an individual.
i. Review of Decision (Appeal). The Complainant and/or the
Respondent may appeal the decision to the Judicial Council of the Fifth Circuit by
submitting in writing a Request for Review of Decision setting forth the grounds for
appeal within 30 days of the date of the decision under procedures established by
that Judicial Council (Appendix 4). The EDR Coordinator will inform the Parties
of the procedures for seeking review. The decision will be reviewed based on the
record created by the Presiding Judicial Officer and will be affirmed if supported by
substantial evidence and the proper application of legal principles.
2
Back Pay Act. Remedies under the Back Pay Act, including attorney’s fees, may be ordered only when the statutory
criteria of the Back Pay Act are satisfied, which include: (1) a finding of an unjustified or unwarranted personnel
action; (2) by an appropriate authority; (3) which resulted in the withdrawal or reduction of all or part of the
Employee’s pay, allowances, or differentials. An order of back pay is subject to review and approval by the Director
of the Administrative Office of the United States Courts. See 5 U.S.C. § 5596(b)(1) and Guide, Vol. 12, § 690.
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V. COURT AND EMPLOYING OFFICE OBLIGATIONS
To ensure that Employees are aware of the options provided by this Plan, and that the Plan
is effectively implemented, Courts and Employing Offices must adhere to the following:
A. Adopt and Implement EDR Plan. All Courts must adopt and implement an EDR
Plan based on this Fifth Circuit EDR Plan. Courts may join with others to adopt
consolidated EDR Plans. Any modification of this Fifth Circuit EDR Plan (1) may
expand, but should not diminish or curtail, any of the rights or remedies afforded
Employees under this Fifth Circuit EDR Plan, and (2) must be approved by the
Judicial Council of the Fifth Circuit. A copy of each EDR Plan and any subsequent
modifications must be filed with the Administrative Office.
B. Records. At the conclusion of informal or formal proceedings under this Plan, all
papers, files, and reports will be filed with the EDR Coordinator. No papers, files,
or reports relating to an EDR matter will be filed in any Employee’s personnel
folder, except as necessary to implement an official personnel action.
Final decisions made following Formal Complaint procedures under the Fifth
Circuit’s EDR Plan will be made available to the public free of charge upon written
request addressed to the Circuit Director of Workplace Relations. The Presiding
Judicial Officer’s decision is the “final decision” under the Fifth Circuit’s EDR
Plan if no Request for Review of Decision is filed by the deadline. The panel of
the Judicial Council’s decision is the “final decision” if a Request for Review of
Decision is filed. Individual names and other identifying information that
appeared in a final decision will be removed before the decision is released to the
public.
C. EDR Coordinators. The Chief Judge will designate both a primary EDR
Coordinator and at least one alternate EDR Coordinator for the Court. A Court may
use an EDR Coordinator from another Court, or may use the Circuit Director of
Workplace Relations as an alternate EDR Coordinator, if necessary, with the
approval of the appropriate Chief Judge. An Employee may choose the EDR
Coordinator with whom he or she wishes to seek Informal Advice, request Assisted
Resolution, or file a Complaint under this EDR Plan.
An EDR Coordinator must be an Employee who is not a Unit Executive. A Judge
may not be an EDR Coordinator. All EDR Coordinators must be trained and
certified as set forth in the EDR Interpretive Guide and Handbook.
D. Advising Employees of their Rights. Courts and Employing Offices must:
1. prominently post on their internal and external main homepages a direct
link, labeled “Your Employee Rights and How to Report Wrongful
Conduct,” to:
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• the entire EDR Plan with all Appendices and relevant contact
information;
• the Judicial Conduct and Disability Act, the Rules for Judicial-Conduct
and Judicial-Disability Proceedings, and the Judicial Conduct and
Disability Complaint form; and
• contact information for all of the Court’s EDR Coordinators, Circuit
Director of Workplace Relations, and the national Office of Judicial
Integrity.
2. prominently display in the workplace:
• the posters set forth in Appendix 5; and
• an Anti-Discrimination and Harassment Notice that: (a) states that
discrimination or harassment based on race, color, sex, gender, gender
identity, pregnancy, sexual orientation, religion, national origin, age (40
years and over), or disability is prohibited; (b) explains that Employees
can report, resolve, and seek remedies for discrimination, harassment, or
other wrongful conduct under the EDR Plan by contacting any of the
Court’s EDR Coordinators and/or the Circuit Director of Workplace
Relations, and/or the national Office of Judicial Integrity; (c) identifies
the names and contact information of all Court EDR Coordinators, the
Circuit Director of Workplace Relations, and the national Office of
Judicial Integrity; and
(d) states where the EDR Plan can be located on the Court’s website.
3. ensure that each new Employee receive an electronic or paper copy of the
EDR Plan and acknowledge in writing that he or she has read the Plan; and
4. conduct training annually for all Judges and Employees, including chambers
staff, to ensure that they are aware of the rights and obligations under the
EDR Plan and the options available for reporting wrongful conduct and
seeking relief.
E. Reporting. Courts and Employing Offices will provide annually, to the
Administrative Office of the United States Courts, data on: (1) the number and types
of alleged violations for which Assisted Resolution was requested, and for each
matter, whether it was resolved or was also the subject of a Complaint under this
Plan or other complaint; (2) the number and type of alleged violations for which
Complaints under this Plan were filed; (3) the resolution of each Complaint under
this Plan (dismissed or settled prior to a decision, or decided with or without a
hearing); and (4) the rights under this Plan that were found by decision to have been
violated. Courts and Employing Offices should also provide any information that
may be helpful in identifying the conditions that may have enabled wrongful
conduct or prevented its discovery, and what precautionary or curative steps should
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be undertaken to prevent its recurrence.
F. Appendices Attached:
1. Definitions
2. Request for Assisted Resolution
3. Formal Complaint Form
4. Request for Review of Decision Procedures and Sample Form
5. Posters
This Plan supersedes all prior Fifth Circuit Equal Employment Opportunity and
Employment Dispute Resolution Plans.
Effective date: February 19, 2020
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DEFINITIONS
APPENDIX 1
Circuit Director of Workplace Relations: A circuit Employee who coordinates
workplace conduct issues and the implementation of all Court EDR Plans within the circuit.
The scope of duties may vary by circuit, but generally, a Circuit Director of Workplace
Relations may: provide Informal Advice and Assisted Resolution under any EDR Plan
within the circuit; assist in training the EDR Coordinators within the circuit; provide or
arrange for training throughout the circuit on workplace conduct, discrimination, and
sexual harassment; and collect and analyze statistical data and other information relevant
to workplace conduct matters.
Court: The Court (Courts of Appeals, District Courts, Bankruptcy Courts, Court of Federal
Claims and Court of International Trade, or of any Court created by an Act of Congress in
a territory that is invested with any jurisdiction of a District Court of the United States) in
which the Employing Office that would be responsible for ordering redress, correction, or
abatement of a violation of rights under this EDR Plan is located. In the case of disputes
involving employees of the federal public defender, “Court” refers to the appropriate Court
of Appeals. In the case of disputes involving probation and pretrial services, “Court” refers
to the appropriate District Court.
EDR Coordinator: A Court Employee, other than a Judge or Unit Executive, designated
by the Chief Judge to coordinate all of the Options for Resolution provided for in this Plan.
The EDR Coordinator provides confidential advice and guidance (see § IV.B.1.) if an
Employee seeks Informal Advice; coordinates the Assisted Resolution process, including
any necessary investigation; accepts Complaints under this Plan for filing; and assists the
Presiding Judicial Officer in the Complaint proceeding, as directed. The EDR Coordinator
maintains and preserves all Court files pertaining to matters initiated and processed under
this EDR Plan. The EDR Coordinator assists the Court in meeting its obligations under this
Plan to train and advise employees of their rights under this Plan, and to post the Plan as
directed. Additional information on the EDR Coordinator’s responsibilities may be found
in the EDR Interpretive Guide and Handbook.
Employee: All employees of a Court. This includes Unit Executives and their staffs;
judicial assistants and other chambers employees; law clerks; federal public defenders,
chief probation officers and chief pretrial services officers and their respective staffs; court
reporters appointed by a Court; and paid and unpaid interns, externs, and other volunteer
employees.
Employing Office/Respondent: The office of the Court, or Federal Public Defender
Office, that is responsible for providing any appropriate remedy. The Court is the
Employing Office of Judges and chambers employees.
Judge: A judge appointed under Article III of the Constitution, a United States bankruptcy
judge, a United States magistrate judge, a judge of the Court of Federal Claims, a judge of
the Court of International Trade, or a judge of any Court created by Act of Congress in a
territory that is invested with any jurisdiction of a district court of the United States.
Office of Judicial Integrity: The office of the Administrative Office of the United States
Courts staffed to provide advice and guidance to Employees nationwide about workplace
conduct issues, including sexual, racial, and other discriminatory harassment, abusive
conduct and other wrongful conduct. Contact information for the Office of Judicial
Integrity can be found on JNet and on uscourts.gov.
Parties: The Employing Office and the Employee who has filed a request for Assisted
Resolution or a Formal Complaint.
Protected Category: Race, color, sex, gender, gender identity, pregnancy, sexual
orientation, religion, national origin, age (40 years and over),4 or disability.
Unit Executive: Circuit executive, district court executive, clerk of court, chief probation
officer, chief pretrial services officer, federal public defender, bankruptcy administrator,
bankruptcy appellate panel clerk, senior staff attorney, chief preargument/conference
attorney/circuit mediator, or circuit librarian.
4
The age discrimination provision does not apply to hiring, retirement, or separation of probation and pretrial services
officers under 5 U.S.C. chapters 83 and 84.
Effective date: February 19 2020
2
REQUEST FOR ASSISTED RESOLUTION
APPENDIX 2
*USE OF ASSISTED RESOLUTION DOES NOT EXTEND THE 180-DAY
DEADLINE TO FILE A FORMAL COMPLAINT UNLESS THE DEADLINE IS
EXTENDED UNDER EDR PLAN § IV.C.3.a*
Submitted under the Procedures of the Fifth Circuit Employment Dispute Resolution Plan
Court: __________________________________________________________________
Full name of person submitting the form: ______________________________________
Your mailing address: _____________________________________________________
Your email address: _______________________________________________________
Your phone number(s): ____________________________________________________
Office in which you are employed or applied to: ________________________________
Name and address of Employing Office from which you seek assistance (if the matter
involves a judge or chambers employee, the Employing Office is the Court):
Your job title/job title applied for: ____________________________________________
Date of interview (for interviewed applicants only): ______________________________
Date(s) of alleged incident(s) for which you seek Assisted Resolution:
Summary of the actions or occurrences for which you seek Assisted Resolution (attach
additional pages as needed):
1
Names and contact information of any witnesses to the actions or occurrences for which
you seek Assisted Resolution:
Describe the assistance or corrective action you seek:
Alleged Wrongful Conduct for which you seek Assisted Resolution (check all that apply):
Discrimination based on (check all Harassment based on (check all that
that apply): apply):
Race Race
Color Color
Sex Sex
Gender Gender
Gender identity Gender identity
Pregnancy Pregnancy
Sexual orientation Sexual orientation
Religion Religion
National origin National origin
Age Age
Disability Disability
Abusive Conduct Uniform Services Occupational Safety
Retaliation Employment and and Health
Whistleblower Reemployment Polygraph Protection
Protection Rights Other (describe)
Family and Medical Worker Adjustment
Leave and Retraining
2
Do you have an attorney or other person who represents you?
Yes
Please provide name, mailing address, email address, and phone number(s):
No
I acknowledge that this Request will be kept confidential to the extent possible, but
information may be shared to the extent necessary and with those whose involvement is
necessary to resolve this matter, as explained in the EDR Plan (see EDR Plan § IV.B.1).
Your signature ___________________________________________________________
Date submitted ___________________________________________________________
Request for Assisted Resolution reviewed by EDR Coordinator/Circuit Director of
Workplace Relations on____________________________________________________
EDR Coordinator/Circuit Director of Workplace Relations name ___________________
EDR Coordinator/Circuit Director of Workplace Relations signature ________________
Local Court Claim ID (Court Initials–AR–YY–Sequential Number): ________________
3
FORMAL COMPLAINT FORM
APPENDIX 3
Submitted under the Procedures of the Fifth Circuit Employment Dispute Resolution Plan
Court: __________________________________________________________________
Full name of person submitting the form (Complainant): __________________________
Your mailing address: _____________________________________________________
Your email address: _______________________________________________________
Your phone number(s): ____________________________________________________
Office in which you are employed or applied to: ________________________________
Name and address of Employing Office from which you seek a remedy (if the matter
involves a judge or chambers employee, the Employing Office is the Court):
Your job title/job title applied for: ____________________________________________
Date of interview (for interviewed applicants only): ______________________________
Date(s) of alleged incident(s) for which you seek a remedy:
Summary of the actions or occurrences giving rise to the Complaint (attach additional
pages as needed):
1
Describe the remedy or corrective action you seek (attach additional pages as needed):
Identify, and provide contact information for, any persons who were involved in this
matter, who were witnesses to the actions or occurrences, or who can provide relevant
information concerning the Complaint (attach additional pages as needed):
Identify the Wrongful Conduct that you believe occurred (check all that apply):
Discrimination based on (check all Harassment based on (check all that
that apply): apply):
Race Race
Color Color
Sex Sex
Gender Gender
Gender identity Gender identity
Pregnancy Pregnancy
Sexual orientation Sexual orientation
Religion Religion
National origin National origin
Age Age
Disability Disability
Abusive Conduct
I have already sought Assisted Resolution for this Abusive Conduct claim.
Provide date Request for Assisted Resolution submitted and concluded, and describe the
resolution, if any:
Retaliation Uniform Services Occupational Safety
Whistleblower Employment and and Health
Protection Reemployment Polygraph Protection
Family and Medical Rights Other (describe)
Leave Worker Adjustment
and Retraining
2
Do you have an attorney or other person who represents you?
Yes
Please provide name, mailing address, email address, and phone number(s):
No
I have attached copy(ies) of any documents that relate to my Complaint (such as emails,
notices of discipline or termination, job application, etc.)
I acknowledge that this Complaint will be kept confidential to the extent possible, but
information may be shared to the extent necessary and with those whose involvement is
necessary to resolve this matter, as explained in the EDR Plan (see EDR Plan § IV.B.1).
I affirm that the information provided in this Complaint is true and correct to the best of
my knowledge:
Complainant signature ____________________________________________________
Date submitted ___________________________________________________________
Complaint reviewed by EDR Coordinator on ___________________________________
EDR Coordinator name ____________________________________________________
EDR Coordinator signature _________________________________________________
Local Court Claim ID (Court Initials–FC–YY–Sequential Number): _________________
3
REQUEST FOR REVIEW OF DECISION (APPEAL)
APPENDIX 4
Submitted under the Procedures of the Fifth Circuit Employment Dispute Resolution Plan
1. A Complainant and/or Respondent aggrieved by the decision of a Chief Judge or
Presiding Judicial Officer, on an EDR Formal Complaint filed in any Court of the Fifth
Circuit, may request review of the decision by the Judicial Council.
2. The Request for Review of Decision must be filed in writing with the Circuit Executive
within 30 days of receipt of the challenged ruling. The Appendix 4 form should, but is
not required to, be used in filing a Request for Review. In any event, the Request for
Review should include the information requested by the Appendix 4 form.
3. Upon receipt of notice of the filing of a Request for Review, the EDR Coordinator for the
involved Court shall promptly transmit to the Circuit Executive the complete record of
the Complaint.
4. After the record is received by the Circuit Executive, the Chief Judge of the Circuit shall
appoint a panel composed of three members of the Judicial Council to review the
Complaint and its disposition. The panel shall be empowered to act for and on behalf of
the Judicial Council.
5. The panel shall consider the record of the Complaint and such other data or evidence as
it deems appropriate, and shall rule thereon within 30 days, if possible. Panel action shall
be by majority vote and the panel shall be guided by the substantial evidence standard of
review.
6. Decisions by the panel shall be in writing and shall be final and conclusive and not
subject to further review by the Judicial Council, judicial appeals, or otherwise.
SAMPLE FORM
Name of Requesting Party __________________________________________________
Address _________________________________________________________________
Phone Number(s) _________________________________________________________
Email Address ___________________________________________________________
Name of Court in Which Presiding Judicial Officer’s Decision Was Issued
________________________________________________________________________
________________, Requesting Party v.
________________, Responding Party
Request for Review of Decision on Formal Complaint
Notice is hereby given that ______________________, (Requesting Party) in the
above named case, hereby requests review by the Judicial Council for the Fifth Circuit
from the decision by Judge _________________ entered in this matter on the ___ day of
___________________, 20__.
Attached to this request is a copy of the Presiding Judicial Officer’s decision.
State the reason(s) you contend that the Presiding Judicial Officer’s decision was in
error (attach additional pages if necessary):
Submitted this ______________ day of ______________, 20___.
Signature of Requesting Party __________________________________________
Signature of Counsel, if any ____________________________________________
Approved by the Fifth Circuit Judicial Council on _____________________.
POSTERS
APPENDIX 5
INFORMAL ADVICE
To request advice about a workplace concern,
contact your Employment Dispute Resolution
(EDR) coordinator, Circuit Director of Workplace
Relations, or the Office of Judicial Integrity.
They can provide you with advice and guidance ASSISTED RESOLUTION
on how to address the issue including: Contact an EDR Coordinator or Circuit
• Your rights under the EDR Plan Director of Workplace Relations to request
• Advice on handling discriminatory, Assisted Resolution. This interactive,
harassing, or abusive conduct flexible process may include:
• Discussions with the source of the
• Options for addressing the conduct
conduct
• Preliminary investigation, including
interviewing witnesses
• Mediation
• Resolving the matter by agreement
FORMAL COMPLAINT
Contact an EDR coordinator to file a formal complaint.
The Complaint must be filed within 180 days of the
alleged violation or the discovery of the violation.
This formal process includes:
Contact Information:
• Appointment of Presiding Judicial Officer Local EDR Coordinators Director of Workplace Relations,
• An investigation and/or hearing if appropriate Morgan Palmer
504-589-7680
Fifth Circuit
Rebecca Coman
• Written decision
[email protected] 504-310-7795
[email protected]
• Appeal rights Jason Branch
504-589-3271 National Office of Judicial Integrity
[email protected] Michael Henry, Judicial Integrity Officer
202-502-1603
Confidentiality Charo Davis
[email protected]
All options for resolution are intended to respect 504-589-3208
[email protected]
privacy of all involved to the greatest extent
possible, and to protect the fairness and
thoroughness of the process by which allegations
of wrongful conduct are initiated, investigated, and
ultimately resolved.
Effective date: February 19, 2020
Employees of the Federal Judiciary are protected by the employment rights listed below, as described in Guide to
Judiciary Policy, Vol. 12, Ch. 2.
Employees have options for resolution, including Informal Advice, Assisted Resolution, and filing a Formal Complaint.
Formal Complaints must be filed within 180 days of when the Employee knew or should have known of the alleged violation.
More information, including a list of court EDR Coordinators, can be found on JNet.
Employees may confidentially report workplace discrimination, harassment, abusive behavior, or retaliation to an EDR
Coordinator, Circuit Director of Workplace Relations, or the Judicial Integrity Officer, Michael Henry, at 202-502-1603.
Protection from Unlawful Family and Medical Leave Hazard-Free Workspaces
Discrimination Provides rights and protections for Requires employing offices to comply
Prohibits discrimination in personnel employees needing leave for with occupational safety and health
actions based on race, color, sex, specified family and medical reasons. standards, and provide workplaces
gender, gender identity, pregnancy, free of recognized hazards.
sexual orientation, religion, national
origin, age (40+), or disability.
Protection for Veterans and
Members of the Uniformed Polygraph Testing Prohibition
Services Restricts the use and the results of
Protection from Harassment Protects employees performing polygraph testing.
Prohibits sexual harassment, service in the uniformed services
discriminatory harassment, and from discrimination and provides
abusive conduct. certain benefits and reemployment
rights.
Protection for Exercising
Workplace Rights Notification of Office Closings
Prohibits intimidation, retaliation, or and Mass Layoffs
discrimination against employees Under certain circumstances,
who exercise their employment rights requires that employees be notified of
or report or oppose wrongful conduct, an office closing or of a mass layoff at
including whistleblower protection. least 60 days in advance of the event.
These rights are fully explained in Guide to Judiciary Policy, Vol. 12, Ch. 2.
Effective date: February 19, 2020
File a
Complaint
File a complaint with
an EDR coordinator
within 180 days of the
conduct (or discovery
of the conduct).
Gather
Information
The Presiding Judicial
Officer decides what
investigation and
discovery are needed
and if written
arguments are needed.
Hearing
The Presiding
Judicial Officer
determines if a
hearing is needed.
DECISION
RIGHTS
• An impartial investigation and/or hearing, if appropriate.
• Both parties may use a representative or attorney (at
own expense). APPEAL
• Both parties may present witnesses and examine
adverse witnesses.
• A prompt written decision by a Presiding Judicial Officer.
• Appeal. Parties have the right to appeal to the Fifth
Circuit Judicial Council within 30 days of a
decision.
Effective date: February 19, 2020
