Case 1:13-mc-00004 Document 3 Filed 01/11/13 Page 1 of 1
IN THE
E UNITED ST
TATES DIST
TRICT COU
URT
FOR THE DISTR
RICT OF NE
EW MEXICO
O
IN TH
HE MATTERR OF:
ADOPPTION OF THE
T EMPLOYYMENT O. 13-MC-000004-03
MISC NO
DISPU
UTE RESOLLUTION PLA
AN
ADMINIST
TRATIVE O
ORDER
The Emplo
oyment Dispu
ute Resolution
n Plan of the U
United Statess District Couurt for the
Distriict of New Meexico was app
proved by thee Judicial Couuncil of the T
Tenth Circuit oon January 9,
2013 to provide itss employees th Employment Dispute
he rights and protections oof the Model E
Resollution Plan ad
dopted by the Judicial Confference of thee United Statees in March 22010; the plann
may be
b modified only
o by approv
val of the Jud
dicial Councill. The Emplooyment Dispuute Resolutionn
Plan’ss protections are comparab
ble to those prrovided to thee legislative bbranch employyees under thhe
Congrressional Acccountability Act
A of 1995. On
O Septembeer 11, 2012 thhe plan was am
mended by thhe
Judiciial Council reequiring all co
ourts within th
he circuit to aadopt the whistleblower prrotection
langu
uage for emplo
oyees of the federal
f judiciaary. This Em
mployment Disspute Resoluttion Plan
supersedes any and
d all previouss versions of the
t District Coourt’s Emplooyment Disputte Resolutionn
Plan.
IT IS THE
EREFORE ORDERED
O that the Emplooyment Dispuute Resolution Plan of the
United States Distrrict Court for the District of
o New Mexicco, as approved by the Juddicial Councill
of thee Tenth Circuiit on January 9, 2013, is heereby adoptedd in its entiretty. This ordeer supersedes
any an
nd all previou
us orders referencing previious Employm
ment Dispute Resolution P
Plans.
Done
D this 10thh day of Januaary, 2013.
FOR TH
HE COURT::
________________________
M. Chrisstina Armijo
Chief Unnited States D
District Judge
District Version v4.2 LIVE DB https://ecf.nmd.circ10.dcn/cgi-bin/Dispatch.pl?368611154026593
Notices
1:13-mc-00004 Administrative Orders
U.S. District Court
District of New Mexico - Version 4.2
Notice of Electronic Filing
The following transaction was entered on 1/11/2013 at 8:46 AM MST and filed on 1/11/2013
Case Name: Administrative Orders
Case Number: 1:13-mc-00004
Filer: Administrative Orders
Document Number: 3
Docket Text:
ADMINISTRATIVE ORDER: Adoption of the Employment Dispute Resolution Plan.
(Attachments: #1 EDR Plan)(na)
1:13-mc-00004 Notice has been electronically mailed to:
Alonzo Medina
[email protected]
1:13-mc-00004 Notice has been delivered by fax to:
1:13-mc-00004 Notice has been delivered by USPS to:
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] [60e3b6d4bf3b066e2c7c24bc37cdb18144220a519c3c15fac3420396d7d10803906
bcf2a714e2bcef80acfb4d4336ad153794398512f6cbde560810b0d805838]]
Document description:Supplement EDR Plan
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45df964378dc44a7ab24fc96477a508767587a51ba1a9f990702465afba84]]
1 of 1 1/11/2013 8:47 AM
EMPLOYMENT DISPUTE RESOLUTION PLAN
of the
UNITED STATES DISTRICT COURT
for the
DISTRICT OF NEW MEXICO
Adopted by the United States District Court
for the District of New Mexico
January 10, 2013
Table of Contents
CHAPTER I - GENERAL PROVISIONS .......................................................................... 1
'1 Preamble ........................................................................................................ 1
'2 Scope of coverage ......................................................................................... 2
'3 Definitions ..................................................................................................... 2
'4 Proper Forum ................................................................................................. 3
CHAPTER II - EQUAL EMPLOYMENT OPPORTUNITYAND
ANTI-DISCRIMINATION RIGHTS ...................................................................... 3
'1 General .......................................................................................................... 3
'2 Special provision for probation and pretrial services officers ...................... 3
CHAPTER III - FAMILY AND MEDICAL LEAVE RIGHTS ......................................... 4
'1 General ......................................................................................................... 4
CHAPTER IV - WORKER ADJUSTMENTAND RETRAINING NOTIFICATION
RIGHTS .................................................................................................................... 4
'1 General ......................................................................................................... 4
'2 Definitions ..................................................................................................... 4
CHAPTER V - EMPLOYMENT AND REEMPLOYMENT RIGHTSOF MEMBERS OF
THE UNIFORMED SERVICES.............................................................................. 5
'1 General .......................................................................................................... 5
CHAPTER VI - OCCUPATIONAL SAFETYAND HEALTH PROTECTIONS ............. 5
'1 General .......................................................................................................... 5
'2 Court program requirements ......................................................................... 5
CHAPTER VII - POLYGRAPH TESTS ............................................................................ 5
'1 General .......................................................................................................... 5
CHAPTER VIII - WHISTLEBLOWER PROTECTION ................................................... 5
'1 General .......................................................................................................... 5
'2 Definition....................................................................................................... 6
CHAPTER IX - REPORTS OF WRONGFUL CONDUCT............................................... 6
CHAPTER X - DISPUTE RESOLUTION PROCEDURES .............................................. 7
'1 General procedure for consideration of alleged violations ........................... 7
i
'2 Alleged Violation by Employee .................................................................... 7
'3 Alleged Violation by Judge ......................................................................... 7
'4 Confidentiality ............................................................................................. 7
'5 General provisions and protections ............................................................... 8
A. Prohibition against retaliation ........................................................... 8
B. Right to representation ....................................................................... 8
C. Case preparation ................................................................................. 8
D. Extensions of time ............................................................................ 8
E. Dismissal of claim .............................................................................. 8
F. Notice ................................................................................................ 8
G. Settlement ........................................................................................... 8
H. Records ............................................................................................. 9
'6 Designation and duties of EDR Coordinator ............................................... 9
'7 Designation of Presiding Judge; impartiality; disqualification ................... 9
'8 Counseling ................................................................................................... 10
A. Initiating a proceeding; formal request for counseling .................... 10
B. Form and manner of requests ........................................................... 10
C. Procedures ........................................................................................ 10
1. Who may serve as counselor ............................................... 10
2. Purposes of counseling ........................................................ 10
3. Confidentiality....................................................................... 11
D. Duration of counseling period .......................................................... 11
E. Conclusion of the counseling period and notice .............................. 11
'9 Mediation..................................................................................................... 11
A. Initiation ........................................................................................... 11
B. Procedures ........................................................................................ 11
1. Designation of mediator ...................................................... 12
2. Who may serve as Mediator.................................................. 12
3. Purpose of mediation ........................................................... 12
4. Confidentiality ..................................................................... 12
C. Duration of mediation period ........................................................... 12
D. Conclusion of mediation period and notice ..................................... 12
' 10 Complaint and hearing ................................................................................ 12
A. Complaint ....................................................................................... 12
B. Hearing procedures .......................................................................... 13
1. Presiding Judge ..................................................................... 13
2. Specific provisions ................................................................ 13
' 11 Review of decision .................................................................................... 14
' 12 Remedies ..................................................................................................... 14
' 13 Record of final decisions ............................................................................. 15
ii
EMPLOYMENT DISPUTE RESOLUTION PLAN
of the
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
CHAPTER I - GENERAL PROVISIONS
'1 Preamble
This Plan shall be known as the Employment Dispute Resolution Plan of the United States
District Court for the District of New Mexico (AEDR Plan@). It was approved by the
Judicial Council of the Tenth Circuit in order to provide its employees the rights and
protections of the Model Employment Dispute Resolution Plan (AModel EDR Plan@)
adopted by the Judicial Conference of the United States in March 2010, and may be
modified only by approval of the Judicial Council. The EDR Plan=s rights and protections
are comparable to those provided to legislative branch employees under the Congressional
Accountability Act of 1995.
This EDR Plan supersedes any and all previous versions of the District Court’s
Employment Dispute Resolution Plan. This Court and each employing office listed in
Section 2 of this Chapter shall prominently post this EDR Plan on their internal and
external websites. This Court and each employing office shall post notices stating where
employees can locate a copy of the Court’s EDR Plan and identifying the name and contact
information of the Court’s EDR Coordinators.
Employees of this Court are afforded certain additional rights and protections regarding
adverse action or general grievance proceedings which are set forth in the Court’s policies
and procedures. These rights and protections are not modified and remain in effect as they
are currently detailed in the policies and procedures, which may be amended from time to
time.
The EDR Plan is not intended to duplicate the protections provided for the resolution of
complaints of judge misconduct or disability under 28 U.S.C. '' 351, et seq. but otherwise
it is intended to be the exclusive remedy of the employee relating to the rights enumerated
under the EDR Plan.
1
'2 Scope of coverage
This EDR Plan applies to all Article III judges and other judicial officers of the United
States District Court for the District of New Mexico; all chambers staff of the District
Court Judges, and all employees of the District Court, including the unit executives and
staff of the Clerk=s Office, and the U.S. Probation and Pretrial Services Office.
'3 Definitions
For purposes of this Plan:
A. The term Aclaim@ means the filing of a request for counseling as set forth in Chapter
X, which may be pursued further by the filing of a request for mediation and a
complaint.
B. The term Aemployee@ includes all individuals listed in Section 2 of this Chapter, as
well as applicants for employment and former employees, except as provided
below. The term Aemployee@ does not include interns or externs providing
gratuitous service; applicants for bankruptcy judge or magistrate judge positions;
private attorneys who apply to represent indigent defendants under the Criminal
Justice Act; criminal defense investigators not employed by federal public
defenders; volunteer counselors or mediators; or other individuals who are not
employees of an Aemploying office@ as that term is defined below.
C. The term Aemploying office@ includes all offices of the United States District Court
for the District of New Mexico, including the Clerk=s Office and the United States
Probation and Pretrial Services Office for the District Court. The District Court is
the employing office for all chambers staff of District Court judges.
D. The term Ajudge@ means a District Court Judge of the United States District Court
for the District of New Mexico appointed under Article III of the Constitution, a
United States Magistrate Judge for the District of New Mexico; a judge sitting by
designation; or a recalled District Court Judge or Magistrate Judge. The term
AChief Judge@ means the Chief Judge of the United States District Court for the
District of New Mexico. The term APresiding Judge@ means the Chief Judge or
other District Court Judge designated by the Chief Judge under Chapter X, ' 7 to
assume the duties of Chief Judge under this EDR Plan.
E. The term ACourt@ refers to the United States District Court for the District of New
Mexico.
F. The term AEDR Coordinator@ means the person designated by the Chief Judge
under Chapter X, ' 6 to serve as the employment dispute resolution coordinator,
and any alternate designee(s), unless otherwise noted.
2
'4 Proper Forum
If an employee seeks redress of an employment dispute under both the EDR Plan and under
the general grievance procedures set forth in the Court’s policies and procedures with
respect to the same or substantially the same adverse action or wrongful conduct, as
defined in Chapter II, ' 1, the Chief Judge will craft a procedure for processing both
claims, including determining any common issues of fact, that is consistent with the
substantive and procedural rights relating to both such claims. In doing so, the Chief
Judge may determine that all or part of the grievance claim must be abated until action is
taken on the EDR claim, or that only one forum is the appropriate forum for the claims.
CHAPTER II - EQUAL EMPLOYMENT OPPORTUNITY
AND ANTI-DISCRIMINATION RIGHTS
'1 General - Discrimination against employees based on race, color, religion, sex (including
pregnancy and sexual harassment), national origin, age (at least 40 years of age at the time
of the alleged discrimination), and disability is prohibited. The term Adisability@ means
(1) a physical or mental impairment that substantially limits one or more of the major life
activities of an employee, (2) a record of such an impairment, or (3) being regarded as
having such an impairment. See 42 U.S.C. ' 12102(2). Harassment against an employee
based upon any of these protected categories or retaliation for engaging in any protected
activity is prohibited. All of the above constitute Awrongful conduct.@ The rights and
protections of Sections I through VII of the Judiciary=s Model Equal Employment
Opportunity Plan (AModel EEO Plan@), a copy of which is attached as Appendix A and
incorporated by reference, shall also apply to employees (except that the duties of the EEO
Coordinator under the Model EEO Plan are assumed by the EDR Coordinator, as set forth
in Chapter X, ' 6).
'2 Special provision for probation and pretrial services officers - The age
discrimination provision of Section I of this Chapter shall not apply to the initial hiring or
mandatory separation of probation and pretrial services officers and officer assistants. See
Report of the Proceedings of the Judicial Conference of the United States (March 1991),
pp. 16-17. Additionally, probation and pretrial services officers must meet all fitness for
duty standards, and compliance with such standards does not, in and of itself, constitute
discrimination on the basis of disability.
3
CHAPTER III - FAMILY AND MEDICAL LEAVE RIGHTS
'1 General - Title II of the Family and Medical Leave Act of 1993, 5 U.S.C. '' 6381 et. seq.,
applies to Court employees in the manner prescribed in Volume 12, Chapter 9, Section
920.20.35 of the Guide to Judiciary Policy.
CHAPTER IV - WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION RIGHTS
'1 General - No Aemploying office closing@ or Amass layoff@ (as defined in Section 2 of this
Chapter) may occur until the end of a 60-day period after the employing office serves
written notice of such prospective closing or layoff to employees who will be affected.
This provision shall not apply to an employing office closing or mass layoff which results
from the absence of appropriated funds.
'2 Definitions
A. The term Aemploying office closing@ means the permanent or temporary shutdown
of a single site of employment if the shutdown results in an employment loss at the
single site of employment during any 30-day period for 50 or more employees
excluding any part-time employees.
B. The term Amass layoff@ means a reduction in force which:
1. is not the result of an employing office closing; and
2. results in an employment loss at the single site of employment during any 30
day period for
a. (1) at least 33 percent of the employees (excluding any part-time
employees); and
(2) at least 50 employees (excluding any part-time employees); or
b. at least 500 employees (excluding any part-time employees).
See 29 U.S.C. ' 2101.
4
CHAPTER V - EMPLOYMENT AND REEMPLOYMENT RIGHTS
OF MEMBERS OF THE UNIFORMED SERVICES
'1 General - An employing office shall not discriminate against an eligible employee or
deny an eligible employee reemployment rights or benefits under the Uniformed Services
Employment and Reemployment Rights Act, 38 U.S.C. '' 4301 et seq.
CHAPTER VI - OCCUPATIONAL SAFETY
AND HEALTH PROTECTIONS
'1 General - Each employing office shall provide to its employees a place of employment
which is free from recognized hazards that cause or are likely to cause death or serious
physical harm to employees. Claims that seek a remedy that is exclusively within the
jurisdiction of the General Services Administration (AGSA@) or the United States Postal
Service (AUSPS@) to provide are not cognizable under this Plan; such requests should be
filed directly with GSA or the USPS as appropriate.
'2 Court program requirements - The Court shall implement a program to achieve the
protections set forth in Section 1 of this Chapter.
CHAPTER VII - POLYGRAPH TESTS
'1 General - Unless required for access to classified information, or otherwise required by
law, no employee may be required to take a polygraph test.
CHAPTER VIII – WHISTLEBLOWER PROTECTION
§1 General - Any employee who has authority to take, direct others to take, recommend, or
approve any personnel action shall not, with respect to such authority, take or threaten to
take an adverse employment action with respect to an employee (excluding applicants for
employment) because of any disclosure of information to –
A. the appropriate federal law enforcement authority, or
B. a supervisor or managerial official of the employing office, a judicial officer of the
court, or the Administrative Office of the United States Courts,
by the latter employee, which that employee reasonably and in good faith believes
evidences a violation of any law, rule, or regulation, or other conduct that constitutes gross
mismanagement, a gross waste of funds, or a substantial and specific danger to public
health or safety, provided that such disclosure of information –
5
1. is not specifically prohibited by law,
2. does not reveal case-sensitive information, sealed material, or the deliberative
processes of the federal judiciary (as outlined in the Guide to Judiciary Policy, Vol.
20, Ch. 8), and
3. does not reveal information that would endanger the security of any federal judicial
officer.
§2 Definition - For purposes of this Chapter, an “adverse employment action” means a
termination, demotion, transfer, or reassignment; loss of pay, benefits, or awards; or any
other employment action that is materially adverse to the employee’s job status,
compensation, terms, or responsibilities, or the employee’s working conditions.
CHAPTER IX - REPORTS OF WRONGFUL CONDUCT
A report of wrongful conduct is not the same as initiating or filing a claim under this EDR Plan;
thus, employees who wish to file an EDR claim relating to any alleged wrongful conduct as
defined in Chapter II, '1 must follow the procedures set forth in Chapter X of this Plan.
Judges and employees are encouraged to report any racial or sexual harassment or other wrongful
conduct as defined in Chapter II, '1, to one of the Court’s EDR Coordinators, the Chief Judge, a
unit executive, or the employee=s supervisor as soon as possible, before it becomes severe or
pervasive. Retaliation against any employee making a report of wrongful conduct is prohibited.
The person receiving such report of wrongful conduct shall promptly (a) create a written summary
of the report and (b) inform the Chief Judge, one of the EDR Coordinators and the appropriate unit
executive of such report. The Chief Judge and/or unit executive shall ensure that the allegations
in the report are appropriately and impartially investigated, either by an EDR Coordinator, or other
person who is not supervised by the alleged violator and who is otherwise impartial.
All individuals involved in the investigation shall protect the confidentiality of the allegations of
wrongful conduct to the extent possible. Information and records about the allegations shall be
shared on a need-to-know basis.
Employees found by the Chief Judge and/or unit executive to have engaged in wrongful conduct,
as defined in this Plan, may be subject to disciplinary action. Whenever it is determined that
wrongful harassment has occurred in violation of this EDR Plan, the Court will undertake
immediate and corrective and remedial action designed to stop the harassment, correct its effects
on the employee, and ensure that the harassment does not recur.
6
CHAPTER X - DISPUTE RESOLUTION PROCEDURES
'1 General procedure for consideration of alleged violations - An employee who
claims a denial of the rights granted under the Model EEO Plan or Chapters II through VIII
of this EDR Plan shall seek resolution of such claims through the procedures of this
Chapter. Generally, the process consists of:
A. counseling and mediation;
B. hearing before a Presiding Judge; and
C. review of the hearing decision under procedures established by the Judicial Council
of the Tenth Circuit.
'2 Alleged Violation by Employee - An employee alleging that any of the rights granted
under the Model EEO Plan or this EDR Plan have been violated, and who seeks relief
under this EDR Plan, must timely file a request for counseling with one of the Court’s EDR
Coordinators in accordance with Section 8 of this Chapter. Before invoking a request for
counseling, an employee is encouraged (to the extent feasible) to bring his or her concerns
to his or her supervisor or unit executive, unless the supervisor or unit executive is the
alleged violator. In such a situation, the employee is encouraged to bring his or her
concerns to an EDR Coordinator.
'3 Alleged Violation by Judge - Any employee alleging that a judge violated any rights
granted under the Model EEO Plan or this EDR Plan may file an EDR claim in accordance
with this Plan. In such an instance, however, all the claims procedures of this Chapter
shall be performed by the Judicial Council of the Tenth Circuit, either by members of the
Council directly or by persons designated to act on its behalf, which may include the Chief
Circuit Judge. If a judge becomes the subject of both an EDR claim and a judicial
misconduct complaint under the Judicial Conduct and Disability Act, 28 U.S.C. ''
351-364, the Judicial Council or its designee will craft a procedure for determining any
common issues of fact and processing both complaints, subject to all requirements of the
Act, the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and, as
practicable, the EDR Plan. In so doing, the Judicial Council or its designee may
determine that all or part of the EDR claim must be abated until action is taken on the
judicial misconduct complaint.
'4 Confidentiality - The Court, as well as the Chief Judge, EDR Coordinator, Mediator,
Presiding Judge, and the employing office, shall protect the confidentiality of allegations
and claims filed under this Plan to the extent possible. However, information about
allegations filed under this EDR Plan may be shared on a need-to-know basis. Records
relating to violations under this EDR Plan shall be kept confidential on the same basis.
7
'5 General provisions and protections
A. Prohibition against retaliation - Claimants under this EDR Plan have the right to be
free from retaliation because of filing a claim pursuant to this Plan. Likewise, any
person who participates in the filing or processing of a claim, such as an EDR
Coordinator, Mediator, witness, representative, or co-worker, is also entitled to
freedom from retaliation.
B. Right to representation - Every individual involved in the dispute resolution
procedures of this Plan has the right to be represented by a person of his or her
choice at their own expense, if such person is available and consents to be a
representative. A Court employee may accept the responsibilities of
representation if it will not unduly interfere with his or her Court duties or
constitute a conflict of interest, as determined by the representative=s unit executive
or appointing officer, or if that person is involved in the dispute, then by the Chief
Judge.
C. Case preparation - To the extent feasible, every individual invoking the dispute
resolution procedures of this EDR Plan may use a reasonable amount of official
time to prepare his or her case, so long as it does not unduly interfere with the
performance of his or her Court duties.
D. Extensions of time - The Presiding Judge may extend any of the deadlines set forth
in this Chapter for good cause. If any deadline required by this EDR Plan falls on
a Saturday, Sunday or Court holiday, the deadline shall be extended to the next
following Court business day.
E. Dismissal of claim - After notice and opportunity to respond, the Presiding Judge,
on his or her own initiative or at the request of any party, may at any time in the
proceedings, dismiss a claim or complaint on the grounds that it does not invoke
violations of the rights or protections granted under the Model EEO Plan or this
EDR Plan; is untimely; is unduly repetitive of a previous claim, adverse action, or
grievance; is frivolous; fails to state a claim upon which relief may be granted; or
asserts a claim that was not presented in the request for counseling or request for
mediation under this Plan.
F. Notice - Any notice or communication required by this EDR Plan to be sent by any
party involved in the EDR claim will be deemed to have been delivered if it is sent
either by (1) certified mail or (2) email, so long as the sender uses a Return Receipt
to Confirm delivery option, and receives a Delivery Confirmation Notice in
response.
G. Settlement - The EDR Counselor, Mediator, Chief Judge or Presiding Judge, as
appropriate, shall reduce to writing any settlement achieved during the employment
dispute resolution process and shall secure the signature of the employee, his or her
8
representative, if any, the member of the employing office who is authorized to
enter into settlement on the employing office=s behalf, and all other relevant
individuals who are necessary to implement the settlement. The original
settlement agreement shall be filed with the Court’s primary EDR Coordinator.
Any disputes concerning the enforcement, interpretation or application of a
settlement agreement achieved under this EDR Plan shall be submitted to the EDR
Coordinator, and shall be resolved consistent with the rules and general procedures
in this EDR Plan. Such action to enforce a settlement agreement shall be limited
solely to matters concerning compliance with the settlement agreement.
H. Records - At the conclusion of formal and informal proceedings under this EDR
Plan, all papers, files, and reports (except those maintained by the Mediator) will be
filed with the Court’s primary EDR Coordinator. No papers, files, or reports
relating to a dispute will be filed in any employee=s personnel folder, except as
necessary to implement an official personnel action.
'6 Designation and duties of EDR Coordinator - The Chief Judge shall designate an
EDR Coordinator and one or more Alternate Coordinators under this EDR Plan, and shall
notify the Circuit Executive of any and all such designations. The EDR Coordinator and
Alternate Coordinators shall include individuals of the opposite sex so that employees have
a comfortable forum for the discussion of possibly sensitive issues during the counseling
process. The duties of such persons shall include the following:
A. to provide information to the Court and its employees regarding the rights and
protections afforded under this Plan;
B. to coordinate and organize the procedures and establish and maintain official files
pertaining to claims and other matters initiated and processed under this Plan;
C. to counsel individuals in the counseling stage of the claims process; designate a
Mediator in the mediation stage; assist the Presiding Judge as needed or requested
during the complaint stage; inform the parties of the procedures for seeking review
by the Judicial Council; and if a petition for review is filed, coordinate and assist
with the submission of the complete record to the Judicial Council, as needed or
requested, all in accordance with Sections 8, 9 , 10 and 11 of this Chapter; and
D. as to the primary EDR Coordinator, to collect, analyze, and consolidate statistical
data and other information pertaining to the Court’s employment dispute resolution
process, and to perform all of the duties assigned to the EEO Coordinator under the
Model EEO Plan.
'7 Designation of Presiding Judge; impartiality; disqualification - If the Chief Judge
is unavailable to perform any of the duties assigned to the Chief Judge under this EDR
9
Plan, he or she may designate another District Court Judge who is available and impartial
to assume any or all of those duties (the APresiding Judge@).
The Chief Judge, EDR Coordinator, Mediator and Presiding Judge shall be impartial,
meaning they shall not have participated substantively in any manner in the employment
dispute or adverse employment action that is the subject of the EDR claim, or otherwise
have an interest in the dispute which would conflict with their impartiality.
A party may seek disqualification of the Presiding Judge, EDR Coordinator, or Mediator
by written request to the Chief Judge. Such written request shall contain facts regarding
why the individual should be disqualified.
If the Chief Judge substantively participated in the alleged adverse employment action or is
named as being involved in the EDR claim, the Chief Judge shall designate another District
Court Judge who is available and impartial to assume all of the duties of the Chief Judge
under this EDR Plan.
'8 Counseling
A. Initiating a proceeding; formal request for counseling - An employee who believes
that his or her rights under Chapters II through VIII of this Plan have been violated
must first request counseling.
B. Form and manner of requests - Requests for counseling:
1. are to be submitted to an EDR Coordinator;
2. must be made in writing using the Request for Counseling Form (sample
attached, see Appendix B) and contain all the violations and claims asserted
by the claimant;
3. must be submitted to an EDR Coordinator within 60 days of the alleged
violation or within 60 days of the time the employee becomes aware of the
alleged violation.
C. Procedures
1. Who may serve as counselor - The counseling shall be conducted by one of
the Court’s EDR Coordinators unless such person is disqualified from
serving as counselor under Section 7 of this Chapter, or is otherwise
unavailable. In such instances, the Chief Judge shall designate an
Alternative EDR Coordinator or another qualified individual to perform the
counseling function.
10
2. Purposes of counseling - The purposes of the counseling shall be to discuss
the employee=s concerns and elicit information regarding the matter which
the employee believes constitutes a violation; to advise the employee of his
or her rights and responsibilities and the procedures applicable to the
employment dispute resolution process; to evaluate the matter; and to assist
the employee in achieving an early resolution of the matter, if possible.
3. Confidentiality - Upon receipt, the EDR Coordinator shall promptly
provide a copy of the request for counseling to the unit executive of the
relevant employing office (or the judge, if the employee is a member of
chambers staff) and to the Chief Judge. Unless waived by the employee,
the Court and the employing office shall protect the confidentiality of
allegations filed under this Plan to the extent possible. However,
information about allegations filed under this Plan shall be shared on a
need-to-know basis. Records relating to violations under this Plan shall be
kept confidential on the same basis.
D. Duration of counseling period - The period for counseling shall be 30 days (or a
shorter period if counseling is concluded at an earlier date), beginning on the date
that the request for counseling is received by the EDR Coordinator. The
counseling period may be extended for up to an additional 30 days by mutual
agreement of the EDR Coordinator, the employee and the employing office.
E. Conclusion of the counseling period and notice - The EDR Coordinator shall send
written notice to the employee, the employee=s representative, if any, and the
employing office that the counseling period has concluded. As part of the notice,
the EDR Coordinator shall inform the employee of the right and obligation, should
the employee choose to pursue his or her claim, to file with the EDR Coordinator a
request for mediation in accordance with Section 9 of this Chapter.
'9 Mediation
A. Initiation - Within 15 days after the notice of the conclusion of the counseling
period is sent, the employee may file with the EDR Coordinator a request for
mediation. The request must be made in writing using the Request for Mediation
form (sample attached, see Appendix B) and must state the claim(s) presented.
The EDR Coordinator shall promptly provide a copy of the request for mediation to
the unit executive of the employing office and the Chief Judge. Failure to pursue
mediation will preclude further processing of the employee=s claim under any other
provisions of this Chapter.
11
B. Procedures
1. Designation of mediator - As soon as possible after receiving the request for
mediation, the EDR Coordinator shall designate a Mediator and provide
written notice of such designation.
2. Who may serve as Mediator - Any person who has the skills and experience
to assist in resolving disputes, except one of the Court’s EDR Coordinators,
may serve as Mediator.
3. Purpose of mediation - The Mediator shall consult separately and/or jointly
with the employee and his or her representative, if any, and the employing
office and any other necessary party to discuss alternatives for resolving a
dispute, including any and all possibilities of reaching a voluntary, mutually
satisfactory resolution.
4. Confidentiality - Any person or party involved in the mediation process
shall not disclose, in whole or in part, any information or records obtained
through, or prepared specifically for, the mediation process, except as
necessary to consult with the parties or their representatives, and then only
with notice to all parties. Other than the Request for Mediation, records
relating to mediation will not be filed with the EDR Coordinator under
Section 5(H) of this Chapter.
C. Duration of mediation period - The mediation period shall be 30 days (or a shorter
period if mediation is concluded at an earlier date), beginning on the date the
request for mediation is received. The employee is required to attend at least one
mediation session. Thereafter, he or she may proceed to file a complaint. The
mediation period may be extended for up to an additional 30 days by mutual
agreement of the Mediator, the employee and the employing office.
D. Conclusion of mediation period and notice - If, at the end of the mediation period,
the parties have not resolved the matter that forms the basis of the request for
mediation, the EDR Coordinator shall send the employee, the employee=s
representative, if any, and the employing office written notice that the mediation
period has concluded. The notice shall also inform the employee of his or her right
to file a complaint under Section 10 of this Chapter.
' 10 Complaint and hearing
A. Complaint - Not later than 15 days after the notice of the end of the mediation
period is sent, an employee may file a complaint with the EDR Coordinator, who
will transmit a copy to the Chief Judge and the unit executive of the employing
office. The complaint shall be in writing using the Complaint Under the
Employee Dispute Resolution Plan form (sample attached, see Appendix B), shall
12
identify the complainant and all involved parties and individuals, and shall set forth
a short and plain statement of the complainant=s claim and the relief or remedy
being sought. Claims that were not presented in Section 9(A) of this Chapter, may
not be pursued. The respondent shall be the employing office that would be
responsible for redressing, correcting or abating the violation(s) alleged in the
complaint. No individual shall be named as a respondent in the complaint.
B. Hearing procedures
1. Presiding Judge - If the complaint has not been dismissed under Section ' 5(E) of
this Chapter, the Presiding Judge shall hold a hearing on the merits of the complaint
unless the Presiding Judge determines that no material factual dispute exists.
2. Specific provisions - The Presiding Judge may provide for such pre-hearing
discovery, investigation, conferences and pre- and post-hearing memorandum or
briefing as he or she determines necessary. In general, the Presiding Judge shall
determine the time, place, and manner of conducting the hearing. However, the
following specific provisions shall apply to hearings conducted under this Section:
a. the hearing shall be commenced no later than 60 days after the filing of
the complaint;
b. the complainant and the unit executive of the employing office against
which the complaint has been filed must receive written notice of the
hearing; such notice shall also be provided to any individual alleged to
have violated rights protected by this EDR Plan;
c. at the hearing, the complainant, the employing office, and any
individual alleged to have violated rights under this Plan will have the
right to representation, at their own expense, to present evidence on
their behalf, and to cross-examine adverse witnesses;
d. a verbatim record of the hearing must be kept, at the expense of the
employing office, and shall be the sole official record of the proceeding;
e. in reaching his or her decision, the Presiding Judge shall be guided by
judicial and administrative decisions under the laws related to Chapters
II through VIII of this EDR Plan and by decisions of the Judicial
Council of the Tenth Circuit under Section 11 of this Chapter;
f. remedies may be provided in accordance with Section 12 of this
Chapter where the Presiding Judge finds that the complainant has
established by a preponderance of the evidence that a substantive right
protected by this EDR Plan has been violated;
13
g. the final decision of the Presiding Judge must be issued in writing not
later than 30 days after the conclusion of the hearing; and
h. all parties, or any aggrieved individual, shall have the right to written
notice of any action taken as a result of a hearing.
' 11 Review of decision - A party or individual aggrieved by a summary dismissal of a claim or
complaint by the Presiding Judge, or by a final decision of the Presiding Judge, may
petition for review of that decision under the procedures established by the Judicial
Council of the Tenth Circuit (see Appendix C). The petition for review must be filed
within 30 days of the issuance of the summary dismissal or final decision. The EDR
Coordinator shall inform all persons served with notice of a final decision or summary
dismissal of the procedures for seeking review by the Judicial Council. Any review will
be conducted by the Judicial Council based on the record created by the Presiding Judge,
and shall be affirmed if the legal standards applied are consistent with judicial and
administrative decisions under the laws related to the rights protected by the EDR Plan and
decisions of the Judicial Council, the factual findings are supported by substantial evidence
on the record as a whole, and any discretionary rulings are not an abuse of discretion.
' 12 Remedies
A. Where the Presiding Judge or Judicial Council acting pursuant to Section 10 or 11
of this Chapter finds that a substantive right protected by this Plan has been
violated, they may order a necessary and appropriate remedy. A remedy may be
directed at correcting a past violation, prospectively insuring compliance with the
rights protected by this Plan, or both. A remedy shall be tailored as closely as
possible to the specific violation involved.
B. Remedies that may be provided to successful complainants under this Plan include,
but are not limited to:
1. placement of an employee in a position previously denied;
2. placement in a comparable alternative position;
3. reinstatement to a position from which the employee was previously
removed;
4. prospective promotion to a position;
5. priority consideration for a future promotion or position;
6. back pay and associated benefits, including attorney=s fees, where the
statutory criteria of the Back Pay Act, 5 U.S.C. ' 5596, are satisfied, as
determined by the Presiding Judge or, if so designated by the Presiding
Judge to make these requisite findings, the unit executive of the applicable
employing office;
14
7. records modification and/or expungement;
8. Aequitable@ relief, such as temporary stays of adverse actions;
9. granting of family and medical leave; and
10. accommodation of disabilities through the purchase of specialized
equipment or the restructuring of duties and work hours, or other
appropriate means.
C. Remedies that are not legally available include:
1. payment of attorney=s fees (except as authorized under the Back Pay Act);
2. compensatory damages; and
3. punitive damages.
' 13 Record of final decisions - Final decisions under this Plan shall be made available to the
public, free of charge, by written request to the primary EDR Coordinator. They shall not
name the complainant or any individuals, and shall be captioned as follows:
In the matter of a [Request for Counseling or Complaint] filed under the Employment
Dispute Resolution Plan of the United States District Court for the District of New Mexico.
Case No. [year-number]
The [United States District Court for the District of New Mexico] or [the United States
Probation Office for the District of New Mexico] or [the Clerk of the United States District
Court of the District of New Mexico] as the Designated Employing Office.
15
Appendix A
Judiciary Equal Employment
Opportunity Policy
Appendix B
Sample EDR Forms
Sample Request for Counseling, Request for Mediation and Complaint forms
are provided, but Complainants must submit original forms (available
on the Court’s internal and external web sites) to initiate proceedings.
United States District Court EDR File No.:
District of New Mexico
Request for Counseling
Under the Employment Dispute Resolution Plan
Prior to completing this form, please refer to the Employment Dispute Resolution (EDR) Plan for the District of New Mexico.
This form must be submitted to the EDR Coordinator or Alternate EDR Coordinator within 60 days of the alleged violation
or within 60 days of the time you became aware of the alleged violation. The period for counseling is 30 days or less,
beginning on the date this form is received by the EDR Coordinator. Any notice or communication to be sent will be deemed
to have been delivered if it is sent either by (1) certified mail or (2) e-mail, so long as the sender uses a Return Receipt to
Confirm option, and receives a Delivery Confirmation Notice in response.
1. Today's Date:
2. Name and contact information of Person Requesting Counseling:
Name: Home Phone:
Work Phone:
Home Address: Cell Phone:
E
E-mail Address:
3. Indicate Status of Person Requesting Counseling:
Current Court employee
PL
Former Court employee Applicant for Court position
4. If current or former employee:
M
Employing office:
Employing office from whom you seek
resolution of your dispute (if different):
SA
Job Title:
5. If an applicant, the office to which you
applied and the position you sought:
6. Date(s) of incidents or adverse employment
action giving rise to this dispute:
7. Reason for Request. Describe the incidents or actions giving rise to this dispute and the claims being asserted. Be specific.
Attach additional pages if necessary.
8. Remedy Sought. Please state the corrective action, result or resolution of this claim that is being sought. Be specific.
9. Please identify the EDR claims under which this Request for Counseling is being filed. Select the relevant chapter(s)
of the EDR Plan or the Model EEO Policy.
Chapter II -- Anti-Discrimination Rights (specify below)
Race National Origin
E
Color Age (at least 40 years old at the time of the alleged discrimination) *
Religion Disability *
Sex (includes Sexual Harassment)
Chapter III -- Family and Medical Leave Rights
PL * Review Chapter II, § 2, Special provision for probation and
pretrial services officers
Chapter IV -- Worker Adjustment and Retraining Notification Rights
Chapter V -- Employment and Reemployment Rights of Members of the Uniformed Services
M
Chapter VI -- Occupational Safety and Health Protections
Chapter VII -- Polygraph Tests
Chapter VIII -- Whistleblower Protection
SA
Model EEO Policy
10. Name and contact information of any Attorney or Other Person Representing Requester:
Name: Phone:
Fax:
Address: Cell Phone:
E-mail Address:
This Request for Counseling is submitted by:
Signature
EDR Coordinator's Signature Date of Receipt
United States District Court EDR File No.:
District of New Mexico
Request for Mediation
Under the Employment Dispute Resolution Plan
Prior to completing this form, please refer to the Employment Dispute Resolution (EDR) Plan for the District of New Mexico.
This form must be submitted to the EDR Coordinator or Alternate EDR Coordinator within 15 days after notice of the
conclusion of the counseling period is sent. Please attach a copy of your REQUEST FOR COUNSELING form. The period for
mediation is 30 days or less, beginning on the date this form is received by the EDR Coordinator. The employee is required
to attend at least one mediation session. Failure to pursue mediation will preclude further processing of your claim(s).
Any notice or communication to be sent will be deemed to have been delivered if it is sent either by (1) certified mail or (2)
email, so long as the sender uses a Return Receipt to Confirm option, and receives a Delivery Confirmation Notice in response.
1. Today's Date:
2. Name and contact information of Person Requesting Mediation:
Name: Home Phone:
Work Phone:
E
Home Address: Cell Phone:
E-mail Address: PL
3. Name and Contact Information of Employing Office Responding to Mediation Request:
Name: Phone:
Alt. Phone:
Address:
M
Alt. Phone:
E-mail Address:
SA
4. If any of the information supplied in the REQUEST FOR COUNSELING form (attached) filed in connection with this EDR
matter is no longer accurate or needs to be updated, supplemented or revised, please note the number of the entry
on the REQUEST FOR COUNSELING form to be changed, and state the changes you wish to make.
5. Describe below all of the claims you wish to raise in mediation. You may refer to your identification of EDR claims in
your REQUEST FOR COUNSELING (question 9), but you are encouraged to explain in more detail in what way you
believe your rights under the EDR Plan were violated. Attach additional pages if necessary. Any claims not advanced
in mediation may not be pursued in a complaint under the EDR Plan.
6. Please identify the EDR claims under which this Request for Mediaion is being filed. Select the relevant chapter(s)
E
of the EDR Plan or the Model EEO Policy.
Chapter II -- Anti-Discrimination Rights (specify below)
Race
Color
PL National Origin
Age (at least 40 years old at the time of the alleged discrimination) *
Religion Disability *
Sex (includes Sexual Harassment) * Review Chapter II, § 2, Special provision for probation and
pretrial services officers
M
Chapter III -- Family and Medical Leave Rights
Chapter IV -- Worker Adjustment and Retraining Notification Rights
Chapter V -- Employment and Reemployment Rights of Members of the Uniformed Services
SA
Chapter VI -- Occupational Safety and Health Protections
Chapter VII -- Polygraph Tests
Chapter VIII -- Whistleblower Protection
Model EEO Policy
This Request for Mediation is submitted by:
Signature
EDR Coordinator's Signature Date of Receipt
Name and contact information of Mediator to whom referred (to be completed by EDR Coordinator):
Name: Date:
Phone:
Address: Alt. Phone:
E-mail Address:
United States District Court EDR File No.:
District of New Mexico
Complaint
Under the Employment Dispute Resolution Plan
Prior to completing this form, please refer to the Employment Dispute Resolution (EDR) Plan for the District of New Mexico.
This form must be submitted to the EDR Coordinator or Alternate EDR Coordinator within 15 days after notice of the
conclusion of the mediation period is sent. Please attach a copy of your REQUEST FOR COUNSELING form and your REQUEST
FOR MEDIATION form. Any notice or communication to be sent will be deemed to have been delivered if it is sent either by
(1) certified mail or (2) e-mail, so long as the sender uses a Return Receipt to Confirm option, and receives a Delivery
Confirmation Notice in response.
1. Today's Date:
2. Name and contact information of Person Filing Complaint:
Name: Home Phone:
Work Phone:
Home Address: Cell Phone:
E
E-mail Address:
Name:
PL
3. Name and Contact Information of Employing Office Responding to Complaint:
Phone:
Alt. Phone:
Address: Alt. Phone:
M
E-mail Address:
4. If any of the information supplied in the REQUEST FOR COUNSELING form (attached) or the REQUEST FOR MEDIATION
(attached) filed in connection with this EDR matter is no longer accurate or needs to be updated, supplemented or
SA
revised, please note the number of the entry on the appropriate form to be changed, and state the changes you wish
to make.
5. Please fully describe the incidents or actions giving rise to your complaint. Explain in what way you believe your
rights under the EDR Plan were violated. Identify all persons who participated in this matter or who were witnesses or
who can otherwise provide relevant information concerning this complaint. Attach additional pages if necessary.
Please attach a copy of documents relevant to your Complaint, such as an application or notice of termination.
6. Please identify the EDR claims under which this Complaint is being filed. Select the relevant chapter(s) of the EDR Plan
E
or the Model EEO Policy.
Chapter II -- Anti-Discrimination Rights (specify below)
Race
Color
PL National Origin
Age (at least 40 years old at the time of the alleged discrimination) *
Religion Disability *
Sex (includes Sexual Harassment) * Review Chapter II, § 2, Special provision for probation and
pretrial services officers
M
Chapter III -- Family and Medical Leave Rights
Chapter IV -- Worker Adjustment and Retraining Notification Rights
Chapter V -- Employment and Reemployment Rights of Members of the Uniformed Services
SA
Chapter VI -- Occupational Safety and Health Protections
Chapter VII -- Polygraph Tests
Chapter VIII -- Whistleblower Protection
Model EEO Policy
7. Please state the desired corrective action, result, or resolution of each claim listed in your Complaint. Attach
additional pages if necessary.
I affirm that the information provided in this Complaint is true and correct to the best of my ability.
Signature of Complainant
EDR Coordinator's Signature Date of Receipt
Appendix C
Judicial Council Procedures
for Review of Final
EDR Decisions
Procedures for Review by
the Judicial Council of the Tenth Circuit
of Final Decisions and Summary Dismissals under
the Employment Dispute Resolution Plans
of the United States Courts of the
Tenth Circuit
Approved by the Judicial Council
of the Tenth Circuit
August 25, 2010
§1 Petition for Review
A. Notice of Procedures for Review
A party or individual aggrieved by a final decision or summary dismissal of
a claim or complaint filed under the Employment Dispute Resolution Plan (“EDR
Plan”) of the United States Court of Appeals for the Tenth Circuit or any of the
District Courts or Bankruptcy Courts within the Tenth Circuit, may petition for
review of that decision under the following procedures established by the Judicial
Council of the Tenth Circuit (the “Judicial Council”). The EDR Coordinator for the
employing court must inform all persons served with notice of such final decision
or summary dismissal of these procedures for seeking review by the Judicial
Council.
B. Timing and Form of Petition for Review
A petition for review must be sent to the Circuit Executive of the Tenth
Circuit, by certified mail or email, so long as the sender uses a Return Receipt to
Confirm Delivery option and receives a Delivery Confirmation notice in return,
within 30 days of the date of the summary dismissal or final decision. If the
thirtieth day falls on a Saturday, Sunday or court holiday, the deadline shall be
extended to the next following court business day. The petition must be in writing,
and must be addressed to the Circuit Executive, beginning “I hereby petition the
Judicial Council of the Tenth Circuit for review of the [Presiding Judge’s] order
under the Employee Dispute Resolution Plan of the [name of employing court].”
Only one copy of the petition for review is required.
The petition must state the reasons why the petitioner believes that the Chief
Judge’s or Presiding Judge’s determinations were in error. The petition must be
signed.
C. Receipt of Timely Petition in Proper Form; Record
Upon receipt of a timely petition for review submitted in proper form under
these rules, the Circuit Executive will acknowledge receipt of the petition to all
relevant parties, including the Presiding Judge and the EDR Coordinator of the
employing court. Upon receipt of such notice, the employing court will be
responsible for submitting the complete record of the EDR proceeding to the Circuit
Executive, who must then send the record to the Judicial Council for its
consideration pursuant to Section 2, below. This record must include copies of:
1. the request for counseling, request for mediation and complaint;
1
2. any memorandum, response, objections or other briefing submitted to
the Chief Judge or Presiding Judge in connection with his or her
consideration and disposition of the claim or complaint;
3. any document, information or other record submitted to or received
by the Chief Judge or Presiding judge in connection with his or her
consideration and disposition of the claim or complaint;
4. the Chief Judge’s or Presiding Judge’s order disposing of the claim
or complaint;
5. the transcript of any hearing;
6. the petition for review; and
7. any other document that appears to be relevant and material to the
petition.
§ 2 Consideration of Petition
A. Reviewing Judicial Officers
The petition for review will be reviewed by the entire Judicial Council, or the Chief
Judge may appoint a committee of the Judicial Council, which committee is empowered
to act for and on behalf of the Judicial Council in reviewing the petition.
B. Standard of Review
Any review will be conducted by the Judicial Council based on the record submitted
under Section 1(C), above, and will be affirmed if the legal standards applied are
consistent with judicial and administrative decisions under the laws related to the rights
protected by the employing court’s EDR Plan and decisions of the Judicial Council, the
factual findings are supported by substantial evidence on the record as a whole, and the
discretionary decisions were not an abuse of discretion.
C. Action by Judicial Council
The Judicial Council may request written submissions or oral argument, and may
affirm, reverse, vacate or modify the decision under review. The decisions of the Judicial
Council must be in writing and shall be final and conclusive, and shall not be subject to
any further review or appeal. The Circuit Executive must provide a copy of the final
decision to all parties and to the Chief Judge and EDR Coordinator of the employing court.
§3 Record of final decisions - Final decisions by the Judicial Council disposing of the
petition for review must be made available to the public, free of charge, by written
request to the primary EDR Coordinator for the Tenth Circuit. The decision must
not name the complainant or any individuals, and must be captioned as follows:
2
In the matter of a [Request for Counseling or Complaint] filed under the
Employment Dispute Resolution Plan of the [Name of Employing Court].
Judicial Council EDR Case No. [year-number]
3
