IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TNTHE MATTER OF:
ADOPTION OF THE EMPLOYMENT
DISPUTE RESOLUTION PLAN Misc. NO.1 0-MC-00004- 34
ADMINISTRA TIVE ORDER
The Employment Dispute Resolution Plan of the United States District Court for the District
of New Mexico was approved by the Judicial Council of the Tenth Circuit on November 4,2010 to
provide its employees the rights and protections of the Model Employment Dispute Resolution Plan
adopted by the Judicial Conference of the United States in March 2010; the plan may be modified
only by approval of the Judicial Council. The Employment Dispute Resolution Plan's protections
arc comparable to those provided to the legislative branch employees under the Congressional
Accountability Act of 1995. This Employment Dispute Resolution Plan supersedes any and all
pervious versions of the District Court's Employment Dispute Resolution Plan.
IT IS THEREFORE ORDERED that the Employment Dispute Resolution Plan of the
United States District Court for the District of New Mexico, as approved by the Judicial Council of
the Tenth Circuit on November 4,20 I 0, is hereby adopted in its entirety. This order supersedes any
and all previous orders referencing previous Employment Dispute Resolution Plans.
DONE in Santa Fe, New Mexico this I ~.tL day of~Mc ~-= ,2010.
FOR THE COURT:
~~"'--W~--
Bruce D. Black
Chief United States District Judge
District Version v4.0.3 LIVE DB https://ecf.nmd.circ10.dcn/cgi-bin/Dispatch.pl?350944688952308
Notices
1:10-mc-00004 Administrative Orders
U.S. District Court
District of New Mexico - Version 4.0.3
Notice of Electronic Filing
The following transaction was entered on 11/22/2010 at 1:40 PM MST and filed on 11/18/2010
Case Name: Administrative Orders
Case Number: 1:10-mc-00004
Filer:
Document Number: 34
Docket Text:
ADMINISTRATIVE ORDER: Adoption of the Employment Dispute Resolution Plan.
(Attachments: # (1) EDR Plan)(jkb)
1:10-mc-00004 Notice has been electronically mailed to:
1:10-mc-00004 Notice has been delivered by fax to:
1:10-mc-00004 Notice has been delivered by USPS to:
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1167529506 [Date=11/22/2010] [FileNumber=3441560-
0] [9dcd7609b41dbaa83973d79ee4b706546c1b2ca2935925adb3af2b70c866860193
55c9dca9bbf0213d072bc28edab6682c062c61ff178cfd2b95da7b4ba5f336]]
Document description: EDR Plan
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1167529506 [Date=11/22/2010] [FileNumber=3441560-
1] [4e54bf02923d1e3ff8415eb2ebaadb4bd6fbc4e6ffcfb64e2c7dd11404897ebf85
bf382f91e44b2b68a42cc8adc0bbd37a290caaf4111587b24e4340abdf19fe]]
1 of 1 11/22/2010 1:40 PM
Nondiscrimination Policy
The United States District Court, District of New Mexico, is firmly committed to a
policy that prohibits discrimination on the basis of race, sex (including sexual harassment),
religion, national origin, disability or age. In order to provide equal employment opportunities to
all individuals, employment considerations will be based on merit, qualifications, and abilities.
The Court has adopted the Employment Dispute Resolution Plan of the United States
District Court for the District of New Mexico (EDR Plan), which allows employees and
applicants to seek redress for wrongful discrimination and harassment in the work place. The
EDR Plan, together with the national EEO policy, governs many aspects of employment,
including selection, job assignment, compensation, discipline, termination, and access to benefits
and training. The EDR Plan's protections against discrimination are comparable to those
provided to legislative branch employees under the Congressional Accountability Act.
Incidents of perceived discrimination in violation of the EDR Plan may be confidentially
reported by Court employees or applicants to one of the Court's EDR Coordinators listed below.
A copy of the EDR Plan is posted on the Court's external website and under the "Human
Resources" link on its internal website. If you are having problems finding the EDR Plan or just
have a question, please feel free to contact an EDR Coordinator today.
Matthew L. Zehm Shelley Wagner
EDR Coordinator Alternate EDR Coordinator
505-348-2058 575-528-1545
505- 227 -0180
~i:) ~~O
Honorable Bruce D. Black
Chief Judge, District of New Mexico
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
November 18, 2010
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 OPPORTUNITY
AND ANTI-DISCRIMINATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
§1 General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CHAPTER III - FAMILY AND MEDICAL LEAVE RIGHTS. . . . . . . . . . . . . . . . . . . . . 4
§1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CHAPTER IV - WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . 4
§1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§2 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CHAPTER V - EMPLOYMENT AND REEMPLOYMENT RIGHTS
OF MEMBERS OF THE UNIFORMED SERVICES. . . . . . . . . . . . . . . . . . . . . . . 5
§1 General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CHAPTER VI - OCCUPATIONAL SAFETY
AND HEALTH PROTECTIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§1 General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§2 Court program requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CHAPTER VII - POLYGRAPH TESTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§1 General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CHAPTER VIII - REPORTS OF WRONGFUL CONDUCT. . . . . . . . . . . . . . . . . . . . . . 6
CHAPTER IX - DISPUTE RESOLUTION PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . 7
§1 General procedure for consideration of alleged violations. . . . . . . . . . . . . . 7
§2 Alleged Violation by Employee.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
§3 Alleged Violation by Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
§5 General provisions and protections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Prohibition against retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Right to representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Case preparation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. Extensions of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Dismissal of claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Notice .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
G. Settlement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
§6 Designation and duties of EDR Coordinator . . . . . . . . . . . . . . . . . . . . . . . 10
§7 Designation of Presiding Judge; impartiality; disqualification . . . . . . . . . 10
§8 Counseling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Initiating a proceeding; formal request for counseling.. . . . . . . . . . 11
B. Form and manner of requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Who may serve as counselor . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Purposes of counseling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. Duration of counseling period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
E. Conclusion of the counseling period and notice.. . . . . . . . . . . . . . . 12
§9 Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Initiation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Designation of mediator . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Who may serve as Mediator. . . . . . . . . . . . . . . . . . . . . . . . . 13
3. Purpose of mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Duration of mediation period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. Conclusion of mediation period and notice. . . . . . . . . . . . . . . . . . . 14
§ 10 Complaint and hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Hearing procedures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. Presiding Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. Specific provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
§ 11 Review of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 12 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 13 Record of final decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ii
E M PL O Y M E N T D ISPU T E RE SO L U TIO N PL A N
of the
U N IT ED ST A T ES D IST R IC T C O U R T
D IST R IC T O F N E W M E XIC O
CHAPTER I - GENERAL PROVISIONS
§ 1 Pream ble
This Plan shall be known as the Employment Dispute R esolution Plan of the
United States District Court for the District of New M exico (“ED R Plan”).
It was approved by the Judicial Council of the Tenth Circuit in order to
provide its employees the rights and protections of the M odel Employment
Dispute Resolution Plan (“M odel EDR Plan”) adopted by the Judicial
Conference of the United States in M arch 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 D istrict 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 w hich 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 ED R 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 ED R Plan.
1
§ 2 Scope of coverage
This EDR Plan applies to all Article III judges and other judicial officers of
the U nited States D istrict Court for the District of N ew M exico; all chambers
staff of the District Court Judges, and all employees of the D istrict Court,
including the unit executives and staff of the Clerk’s Office, and the U .S.
Probation and Pretrial Services Office.
§ 3 D efinitions
For purposes of this Plan:
A. The term “claim” m eans the filing of a request for counseling as set
forth in Chapter IX, which may be pursued further by the filing of a
request for mediation and a complaint.
B. The term “employee” 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 “employee” 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 em ployed by federal public
defenders; volunteer counselors or mediators; or other individuals who
are not employees of an “employing office” as that term is defined
below.
C. The term “employing office” includes all offices of the United States
District Court for the D istrict of New M exico, including the C lerk’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 “judge” means a D istrict Court Judge of the United States
District Court for the District of New M exico appointed under Article
III of the Constitution, a U nited States M agistrate Judge for the District
of New M exico; a judge sitting by designation; or a recalled District
Court Judge or M agistrate Judge. The term “Chief Judge” means the
Chief Judge of the United States District Court for the District of New
M exico. The term “Presiding Judge” means the Chief Judge or other
2
D istrict Court Judge designated by the Chief Judge under Chapter IX ,
§ 7 to assume the duties of Chief Judge under this EDR Plan.
E. The term “Court” refers to the United States D istrict Court for the
District of New M exico.
F. The term “ED R Coordinator” means the person designated by the Chief
Judge under C hapter IX , § 6 to serve as the employment dispute
resolution coordinator, and any alternate designee(s), unless otherwise
noted.
§ 4 Proper Forum
If an em ployee seeks redress of an em ploym ent 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 w ill craft a procedure for processing both claims, including determining
any comm on 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.
CH APTER II - EQU AL EM PLOYM ENT O PPOR TUN ITY
AN D A NTI-DISCRIM INA TION RIGH TS
§1 G eneral - 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 “disability” 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
“wrongful conduct.” The rights and protections of Sections I through VII of
the Judiciary’s M odel Equal Employm ent Opportunity Plan (“M odel EEO
Plan”), a copy of which is attached as Appendix A and incorporated by
3
reference, shall also apply to employees (except that the duties of the EEO
Coordinator under the M odel EEO Plan are assumed by the EDR Coordinator,
as set forth in Chapter IX, § 6).
§ 2 Special provision for p ro b a tio n and p retrial services officers - The age
discrimination provision of Section I of this C hapter 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 (M arch 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.
CH APTER III - FAM ILY A ND M EDICA L LEAV E RIGH TS
§ 1 G eneral - Title II of the Family and M edical 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 ADJUSTM ENT
AN D R ETRAINING NO TIFICA TION RIGH TS
§ 1 G eneral - No “employing office closing” or “mass layoff” (as defined in
Section 2 of this Chapter) may occur until the end of a 60-day period after the
employing office serves w ritten 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 D efinitions
A. The term “employing office closing” means the permanent or temporary
shutdown of a single site of employm ent 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.
4
B. The term “mass 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 em ployees (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.
CH APTER V - EM PLOYM ENT A ND REEM PLOYM ENT RIGH TS
OF M EM BERS OF THE U NIFORM ED SERV ICES
§ 1 G ene r a l - A n em ploying 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.
CH APTER V I - OC CU PATION AL SAFETY
AND HEALTH PROTECTIONS
§ 1 G en eral - 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 w ithin the jurisdiction of the General Services
Administration (“GSA”) or the U nited States Postal Service (“USPS”) to
provide are not cognizable under this Plan; such requests should be filed
directly with GSA or the USPS as appropriate.
§ 2 C ourt program requirements - The C ourt shall im plem ent a program to
achieve the protections set forth in Section 1 of this Chapter.
5
CH APTER V II - POLYGR APH TESTS
§ 1 G eneral - Unless required for access to classified information, or otherwise
required by law , no employee may be required to take a polygraph test.
CHAPTER VIII - REPORTS OF WRONG FUL CONDUCT
A report of wrongful conduct is not the same as initiating or filing a claim under this
EDR Plan; thus, employees w ho w ish 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 IX 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 ED R
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 sum mary 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 w ho is
not supervised by the alleged violator and who is otherw ise 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.
Em ployees 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.
W henever it is determined that wrongful harassment has occurred in violation of this
EDR Plan, the Court w ill 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
CH APTER IX - DISPUTE RESOLUTION PROCED UR ES
§ 1 G eneral procedure for consideration of alleged violations - An employee
who claims a denial of the rights granted under the M odel EEO Plan or
Chapters II through VII 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 A lleged V iolation by E m ployee - An employee alleging that any of the rights
granted under the M odel 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 w ith
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 A lleged V iolation by Judge - Any employee alleging that a judge violated
any rights granted under the M odel EEO Plan or this E D R 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 C ircuit, either by members of the Council directly or by persons
designated to act on its behalf, w hich may include the Chief Circuit Judge. If
a judge becomes the subject of both an ED R claim and a judicial misconduct
complaint under the Judicial Conduct and Disability A ct, 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-D isability 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 m isconduct
complaint.
7
§ 4 C o n fidentiality - The Court, as well as the Chief Judge, EDR Coordinator,
M ediator, 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.
§ 5 G eneral 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, M ediator, witness,
representative, or co-worker, is also entitled to freedom from
retaliation.
B. R ight 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 ow n 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. C ase 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 w ith the performance of his or her Court
duties.
D. E xten sio n s of tim e - 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. D ism issal 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
8
protections granted under the M odel EEO Plan or this EDR Plan; is
untim ely; 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. N otice - Any notice or comm unication required by this EDR Plan to be
sent by any party involved in the ED R 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. Settlem ent - The ED R Counselor, M ediator, C hief 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 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 C ourt’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. R ecords - At the conclusion of formal and informal proceedings under
this EDR Plan, all papers, files, and reports (except those maintained by
the M ediator) will be filed with the C ourt’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 D esign a tion a n d d u ties o f E D R C o o rd inator - The Chief Judge shall
designate an EDR Coordinator and one or more A lternate Coordinators under
this ED R 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
9
for the discussion of possibly sensitive issues during the counseling process.
The duties of such persons shall include the following:
1. to provide information to the Court and its employees regarding the
rights and protections afforded under this Plan;
2. to coordinate and organize the procedures and establish and maintain
official files pertaining to claims and other matters initiated and
processed under this Plan;
3. to counsel individuals in the counseling stage of the claims process;
designate a M ediator 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
4. as to the primary EDR Coordinator, to collect, analyze, and consolidate
statistical data and other information pertaining to the C ourt’s
employment dispute resolution process, and to perform all of the duties
assigned to the EEO Coordinator under the M odel EEO Plan.
§ 7 D esign a tio n o f P residing Jud ge; im partiality; disqualification - If the
Chief Judge is unavailable to perform any of the duties assigned to the C hief
Judge under this EDR Plan, he or she may designate another District C ourt
Judge who is available and impartial to assume any or all of those duties (the
“Presiding Judge”).
The Chief Judge, EDR Coordinator, M ediator 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 M ediator 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 ED R claim, the Chief
10
Judge shall designate another District Court Judge who is available and
impartial to assume all of the duties of the C hief Judge under this EDR Plan.
§ 8 C ounseling
A. Initiating a proceeding; form al request for counseling - An
employee who believes that his or her rights under Chapters II through
VII of this Plan have been violated must first request counseling.
B. Form and m anner 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. m ust be submitted to an ED R 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. W ho may serve as counse lor - 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 ED R Coordinator
or another qualified individual to perform the counseling
function.
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.
11
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 em ploying
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. D uration 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. C onclusion 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 M ediation
A. Initiation - W ithin 15 days after the notice of the conclusion of the
counseling period is sent, the em ployee m ay file with the EDR
Coordinator a request for mediation. The request must be made in
writing using the Request for M ediation form (sample attached, see
Appendix B ) and m ust state the claim (s) presented. T he 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 w ill preclude further processing of the
employee’s claim under any other provisions of this Chapter.
12
B. Procedures
1. D esignation of m ediator - A s soon as possible after receiving
the request for mediation, the EDR Coordinator shall designate
a M ediator and provide written notice of such designation.
2. W ho m ay serve as M ediator - Any person who has the skills
and experience to assist in resolving disputes, except one of the
Court’s EDR Coordinators, may serve as M ediator.
3. Purpose of m ediation - The M ediator 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, m utually 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 M ediation, records relating to
mediation will not be filed with the EDR Coordinator under
Section 5(H) of this Chapter.
C. D uration of m ediation 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 m ediation 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 m utual
agreement of the M ediator, the employee and the employing office.
D. C onclusion of m ediation 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 ED R 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.
13
§ 10 C omplaint and hearing
A. C om plaint - 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 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
rem edy being sought. Claim s 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. H earing procedures
1. Presiding Jud ge - 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 determ ine 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;
14
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 VII 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;
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 R eview 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 ED R C oordinator 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
15
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 law s related to the rights
protected by the ED R Plan and decisions of the Judicial Council, the factual
findings are supported by substantial evidence on the record as a w hole, and
any discretionary rulings are not an abuse of discretion.
§ 12 R em edies
A. W here the Presiding Judge or Judicial Council acting pursuant to
Section 10 or 11 of this Chapter find 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 w hich 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;
7. records modification and/or expungement;
8. “equitable” relief, such as temporary stays of adverse actions;
16
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 R ecord of final decisions - F inal decisions under this Plan shall be made
available to the public, free of charge, by written request to the primary ED R
C oordinator. They shall not name the complainant or any individuals, and
shall be captioned as follow s:
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 M exico.
Case No. [year-number]
The [United States District Court for the District of N ew M exico] or [the
United States Probation Office for the D istrict of New M exico] or [the C lerk
of the United States District Court of the District of New M exico] as the
Designated Employing Office.
17
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
Model EEO Policy
SA
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
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
SA
(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 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
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
