CAEB — Adoption of the Amended Employment Dispute Resolution Plan as Modified November 1, 2013

Source: https://www.caeb.uscourts.gov/documents/Forms/GeneralOrders/GO%2013-03001.pdf

FILED

11/14/13

UNITED STATESBANKRUPTCYCOURT EASTERN DISTRICTOFCALIFORNIA

PART B

EMPLOYMENT DISPUTE RESOLUTION PLAN U.S. Bankruptcy Court for the Eastern District of California

CHAPTER I - GENERAL PROVISIONS

§ 1 Preamble

This Plan shall be known as the Employment Dispute Resolution Plan (" EDR Plan"). It
was adopted by the U.S. Bankruptcy Court for the Eastern District of California in
accordance with the Federal Judiciary Employment Dispute Resolution Model Plan
(Model EDR Plan) adopted by the Judicial Conference of the United States on March 16,
2010 in order to provide rights and protections to employees of the U.S. Bankruptcy
Court within the Eastern District of California that are comparable to those provided to
legislative branch employees under the Congressional Accountability Act of 1995.

The Plan supersedes all previous versions of the EDR Plan and Section VII (“Annual
Report”) of the Equal Employment Opportunity Plan ("EEO Plan") imposing
requirements on the court unit. Claims arising under Chapters II through IX of this Plan,
or under Chapters I through VI of the EEO Plan (Part A), shall be treated in accordance
with the procedures set forth in Chapter X of this Plan. The duties of the court's EEO
Coordinator will be assumed by the Employment Dispute Resolution Coordinator
(established in Section 6 of Chapter X of this Plan), except that the dispute resolution
duties assigned to the EEO Coordinator under the EEO Plan will be replaced by the
dispute resolution procedures set forth in Chapter X of this Plan.

This Plan is to be implemented in the same manner as the EEO Plan. This court has
adopted and implemented this plan based upon the Model EDR Plan adopted by the
United States Judicial Conference. All modifications from the Model EDR Plan have
been approved by the Ninth Circuit Judicial Council. All future modifications to the
EDR Plan must likewise be approved by the Ninth Circuit Judicial Council through the
Office of the Circuit Executive. A copy of this Plan and any subsequent modifications
shall be available to each covered employee and shall be posted on the courts internal and
external website(s). A copy of this Plan and any subsequent modifications shall be filed
with the Office of the Circuit Executive and the Administrative Office. This court shall
annually submit a report on the implementation of the Plan to the Administrative Office
for inclusion in the Director's Annual Report to the Judicial Conference. A copy of this
annual report shall also be provided to the Ninth Circuit Judicial Council through the
Office of the Circuit Executive.

Policies adopted by offices within this district or within this court pertaining to adverse
action or general grievance proceedings that do not invoke the rights and protections

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afforded under this Plan are not affected by the Plan. Further, other local policies relating to rights enumerated under the Plan that are not inconsistent with the rights and procedures established herein will not be affected by the Plan.

This Plan is not intended to duplicate the protections provided for the resolution of complaints of judicial officer misconduct or disability under 28 U.S.C. § 351-364 and otherwise is intended to be the exclusive remedy of the employee relating to rights enumerated under the Plan.

§ 2 Scope of coverage

This Plan applies to all Article III judges and other judicial officers of this district, as well as to all employees of the courts and employing offices in this district including judges’ chambers staffs, court unit heads, and their staffs, circuit executives and their staffs.

§ 3 Definitions

For purposes of this Plan–

A. The term “claim” means the filing of a request for counseling as set for in Chapter
X, which may be further pursued by the filing of a request for mediation and a
request for hearing in the form of a formal 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 employed 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 U.S. Bankruptcy Court for
the Eastern District of California, including the offices of circuit executives,
district court executives, bankruptcy court executives, federal public defenders,
clerks of court, chief probation officers, chief pretrial officers, staff attorneys,
chief preargument attorneys, circuit librarians, bankruptcy administrators, and any
such offices that might be created in the future. This court is the employing office
of a judicial officer’s chambers staff.

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D. The term "judicial officer" means a judge appointed under Article III of the Constitution, a United States bankruptcy judge, a United States magistrate judge, or a judge of any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States.

E. The term "court" refers to the appropriate court (appeals, district or bankruptcy)
in which is located the employing office which would be responsible for
redressing, correcting or abating the violation alleged in the complaint. In the
case of disputes involving federal public defenders, the term “court” refers to the
court of appeals.

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), disability and sexual orientation is prohibited. 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 Chapters I through VI of the EEO Plan (Part A) shall also apply to employees.

§ 2 Definition - The term "disability" means--

A. a physical or mental impairment that substantially limits one or more of the major
life activities of an employee,

B. a record of such an impairment, or

C. being regarded as having such an impairment.

See 42 U.S.C. § 12102(2).

§ 3 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

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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 - 6387, applies to court employees in the manner prescribed in Volume12, Chapter 9, Section 920.20.35 of the of the Guide to Judiciary Policies and Procedures.

CHAPTER IV - WORKER ADJUSTMENT AND RETRAINING NOTIFICATION RIGHTS

§ 1 General - 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 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 that results from the absence of appropriated funds.

§ 2 Definitions

A. The term "employing 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 "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 employees (excluding any part-
time employees); and

b. (2) at least 50 employees (excluding any part-time employees);
or

c. at least 500 employees (excluding any part-time employees).

See 29 U.S.C. § 2101.

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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 - 4335.

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. Complaints that seek a remedy that is exclusively within the jurisdiction of the General Services Administration (“GSA”) or the United 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 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

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,

which the employee reasonably and in good faith believes evidences a violation or 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 -

1. is not specifically prohibited by law,

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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 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 wrongful conduct to the court’s EDR Coordinator, the chief judge, unit executive, human resources manager, or their 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 a report has the responsibility to notify the EDR Coordinator as soon as possible.

The EDR Coordinator shall promptly inform the chief judge and unit executive of any report. The chief judge and/or unit executive shall ensure that the allegations in the report are appropriately investigated, either by the human resources manager or other person.

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 by this Plan, may be subject to disciplinary action.

CHAPTER X - DISPUTE RESOLUTION PROCEDURES

§ 1 General procedure for consideration of alleged violations - An employee who claims a denial of the rights granted under Chapters II through IX of this Plan, or who claims a violation of one of the prohibitions against retaliation set forth in §5 A., shall seek resolution of such claims through the procedures of this Chapter. Generally, the procedural process consists of:

A. counseling and mediation;

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B. hearing before the chief judge of the court (or a designated judicial officer) in which the alleged violation arises; and

C. review of the hearing decision under procedures established by the judicial council of the circuit.

§ 2 Alleged Violations by Employee - Before invoking a request for counseling an employee (to the extent feasible) is encouraged 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 court or employing office should specify alternative neutral points of contact for the initial inquiry. An employee alleging that any of the rights granted under the EEO Plan or this EDR Plan have been violated, and who seeks relief under this Plan, must file a request for counseling with their court’s EDR Coordinator in accordance with Section 8 of this Chapter.

§ 3 Alleged Violation by Judge - Any employee alleging that a judge violated any rights granted under the EEO Plan or this EDR Plan may file an EDR claim in accordance with the Plan. In such an instance, however, all the claims procedures of this Chapter shall be performed by the circuit judicial council, either by members of the council directly or by persons designated to act on its behalf, which may include the chief judge of the circuit. 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 circuit judicial council or its designee, which may include the chief judge of the circuit, 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, this Plan. In so doing, the council or its designee, who may include the chief judge of the circuit, 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 or 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.

§ 5 General provisions and protections

A. Prohibition against retaliation - Complainants under this Plan have the right to be free from retaliation, coercion, or interference 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 employment dispute resolution coordinator, mediator, witness, representative, or co- worker, is also entitled to freedom from retaliation.

B. Right to representation - Every individual invoking the dispute resolution procedures of this Plan has the right to be represented by a person of his or her choice if such person is available and consents to be a representative. A court employee may accept the

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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 appointing officer. A representative who is an office employee shall be free from restraint, interference, coercion, discrimination, and reprisal, and shall have a reasonable amount of official time to accompany, represent, and advise the claimant(s)/complainant(s) or the person complained against at any stage in the complaint procedures. The employing office also has the right to representation.

C. Case preparation - To the extent feasible, every individual invoking the dispute resolution procedures of this 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 chief judge of the court, or other presiding judicial officer, may extend any of the deadlines set forth in this Chapter for good cause. The EDR Coordinator and the assigned mediator may likewise, after notification to the parties involved, extend the deadlines related to their functions for good cause.

E. Dismissal of claim - On his or her own initiative or at the request of any party, the chief judge or presiding judicial officer may at any time in the proceedings, dismiss a claim on the grounds that it does not invoke violations of the rights or protections granted under the EEO Plan or this EDR Plan, is untimely, is unduly repetitive of a previous claim, adverse action or grievance, is frivolous, or fails to state a claim upon which relief may be granted. The claim/complaint will be stayed until the request for dismissal is decided.

F. Records - At the conclusion of formal and informal proceedings under this Plan, all papers, files, and reports will be filed with the court's 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 employment dispute resolution coordinator - The court shall designate a person to serve as the EDR Coordinator. The court may designate more than one EDR Coordinator. The duties of such person shall include the following:

A. to provide information to the court and employees regarding the rights and
protections afforded under this Plan;

B. to coordinate and organize the procedures and establish and maintain official files
of the court pertaining to claims and other matters initiated and processed under
the court's employment dispute resolution plan;

C. to coordinate the counseling of individuals in the initial stages of the claim
process, in accordance with Section 8 of this Chapter; and

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D. to collect, analyze, and consolidate statistical data and other information pertaining to the court's employment dispute resolution process.

§ 7 Disqualification Provision- Any person seeking disqualification or recusal of an EDR coordinator, counselor, mediator, or reviewing official shall promptly submit a written statement to the chief judge explaining the reasons for the requested disqualification or recusal. In determining whether disqualification or recusal is warranted, the chief judge shall consider the factors, circumstances and considerations set forth in 28 U.S.C. § 455. If disqualification or recusal is warranted, the chief judge shall designate another individual to act as the EDR coordinator, counselor, mediator, or reviewing official. In the event the chief judge is unavailable to serve under this subsection or has disqualified or recused himself or herself pursuant to this provision, the chief judge will designate another judicial officer to serve as the reviewing official. Disqualification or recusal of the EDR coordinator, counselor, mediator or reviewing official of a court shall not be warranted merely because the court is named as a responding party. However, to avoid possible conflict of interests if the court unit executive, e.g. the clerk of court, is the alleged violator of the Plan’s provisions, the chief judge may designate another party to represent the employing office in mediation and/or at the formal hearing.

§ 8 Counseling

A. Initiating a proceeding; formal request for counseling - An employee who believes that his or her rights under Chapters II through IX 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 the court's EDR Coordinator;

2. must be made in writing and will contain all the violations asserted by the
claimant (copy of approved form is contained in Appendix 1); and

3. must be made within 30 days of the alleged violation or within 30 days of the
time the employee first becomes aware of the alleged violation.

C. Procedures

1. Who may serve as counselor - The counseling shall be conducted by the court's
EDR Coordinator, unless the EDR Coordinator is disqualified from serving as
counselor under Section 7 of this Chapter, or is otherwise unavailable. In such
instances, the chief judge of the court shall designate another qualified individual
to perform the counseling function. The EDR Coordinator shall promptly provide

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a copy of the request for counseling to the unit executive and the chief judge of the court.

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 of the court 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 - Unless the employee agrees in writing to waive confidentiality,
the court or 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.

4. Form of settlement - The EDR Coordinator shall reduce to writing any
settlement achieved during the counseling process and secure the signatures of the
employee, his or her representative, if any, and the member of the employing
office who is authorized to enter into settlement on the employing office's behalf.

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.

E. Conclusion of the counseling period and notice - The EDR Coordinator shall notify the employee in writing of the end of the counseling period. 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 receipt by the employee of the notice of the conclusion of the counseling period, the employee may file with the EDR Coordinator a request for mediation. The request must be made in writing and must state the claim(s) presented (copy of approved form is included as Appendix 2). The EDR Coordinator shall promptly provide a copy of the request for mediation to the unit executive and the chief judge of the court. Failure to pursue mediation (unless waived by mutual agreement of both parties) will preclude further processing of the employee's claim under any other provisions of this Chapter.

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B. Procedures -

1. Designation of mediator - As soon as possible after receiving the request for
mediation, the chief judge or EDR Coordinator shall designate a mediator and
provide written notice to the parties of such designation.

2. Who may serve as mediator - Any person with the skills to assist in resolving
disputes, except the court's EDR Coordinator, may serve as a mediator under this
Plan.

3. Purpose of mediation - The mediator shall meet separately and/or jointly with
the employee and his or her representative, if any, and the employing office 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

. 5. Form of settlement - The mediator shall reduce to writing any settlement achieved during the mediation process and secure the signature of the employee, his or her representative, if any, and the member of the employing office who is authorized to enter into settlement on the employing office's behalf. A notice that settlement was reached will be provided to the EDR Coordinator for report purposes.

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 and request for hearing.

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 mediator shall provide the employee, the employee's representative, if any, and the employing office with written notice that the mediation period has concluded. A copy of this notice shall be sent to the EDR Coordinator, who in turn, shall inform the employee of his or her right to file a complaint under Section 10 of this Chapter.

§ 10 Complaint, review and hearing

A. Complaint- Not later than 15 days after receiving written notice of the end of the mediation period, an employee may file a complaint alleging a violation of the EDR Plan. The complaint shall be in the form approved by the court (see approved form in Appendix 3),

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and must be filed with the chief judge of the court of the employing office with a copy to the employing office and to the EDR Coordinator. Claims that were not presented in the request for mediation under §9(A) may not be pursued except in instances in which mediation has been waived. The respondent in all complaints shall be the employing office which 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 judicial officer - If the chief judge or designated judicial officer does
not dismiss the complaint, the chief judge or designated judicial officer, shall hold
a hearing on the merits of the complaint unless he or she determines that no
material factual dispute exists. Generally, the scope of the hearing should be
limited to a review of the documents and other written evidence submitted, rather
than a full evidentiary hearing or trial with live witnesses, except where
extraordinary circumstances are presented or the presiding judicial officer
believes the allegation(s) contained in the complaint require appearances.

2. Specific provisions - The presiding judicial officer may provide for such
discovery and investigation as is necessary. In general, the presiding judicial
officer shall determine the time, place, and manner of conducting the hearing if
appearances are required. However, the following specific provisions shall apply
to hearings required 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 head of the office against which the complaint has
been filed must receive written notice of the hearing; such notice shall also
be provided to the individual alleged to have violated rights protected by
this Plan;

c. at the hearing, the complainant will have the rights to representation, to
present evidence on his or her behalf, and to cross-examine adverse
witnesses; the employing office will have the rights to present evidence on
its behalf and to cross-examine adverse witnesses;

d. the Federal Rules of Evidence need not be followed, may be used as a
guide;

e. a verbatim record of the hearing must be kept and shall be the sole official
record of the proceeding;

f. in reaching his or her decision, the chief judge or presiding judicial officer
shall be guided by judicial and administrative decisions under the laws

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related to Chapters II through IX of this Plan and by decisions of the Judicial Council under Section 11 of this Chapter;

g. remedies may be provided in accordance with Section 12 of this Chapter
where the hearing officer finds that the complainant has established by a
preponderance of the evidence that a substantive right protected by this
Plan has been violated;

h. the final decision of the chief judge or designated judicial officer must be
issued in writing not later than 30 days after the conclusion of the hearing
with or without appearances; and

i. 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 final decision of the chief judge or presiding judicial officer, or by a summary dismissal of the complaint, may petition for review of that decision. Such review must be requested in writing to the Judicial Council of the Ninth Circuit no later than 30 days following the date of the final decision of the chief judge or the presiding judicial officer or following the date of a summary dismissal of the complaint. Any review will be conducted by the members of the Executive Committee of the Ninth Circuit Judicial Council or their designees. The decision of the Executive Committee shall be based on the record created by the hearing officer, and shall be affirmed if supported by substantial evidence (See Appendix 4 for “Procedures for Review of EDR Hearing Officer Decision by the Executive Committee of the Judicial Council of the Ninth Circuit”).

§ 12 Remedies

A. Where judicial officers acting pursuant to Section 10 or 11 of this Plan 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 which 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;

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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;

   7. records modification and/or expungement;

   8. "equitable" 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 which 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 - The conclusion of the reviewing panel in any final decisions reached in accordance with the provisions of §11 of this Chapter shall be made available to the public from the Office of the Circuit Executive upon written request. Only in the event the panel determines that all or portions of the entire decision should be made public shall additional portions of the decision be made available to the public. The reviewing panel, in the interests of justice and of fairness to the parties, may determine not to make available to the public the conclusion of any final decision if public disclosure would compromise the integrity or legitimate confidentiality of the parties or the court, or to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense, or for any other reason that the administration of justice may require.

§ 14 Election of remedies- If an employee or an employee representative files an appeal of an adverse action or a grievance in addition to a complaint under this Plan concerning the same or substantially the same subject matter, the employee must elect either (a) the EDR Plan or (b) the grievance/adverse action appeal procedures under which the complaint is to be processed. An employee may not utilize both (a) and (b). Similarly, if a complaint has already been processed under one of these procedures (i.e., the grievance/adverse action appeal procedure or the procedures in this Plan), it may not be the subject of a complaint under the other.

§ 15 Determining Time Periods- The word “days” in all filing and other time periods specified in this Plan shall mean calendar days, except that if the deadline date falls on a

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Saturday, Sunday or holiday, the deadline shall be extended to the following Monday or court business day respectively.

§ 16 Annual Report- The EDR Coordinator will prepare an annual report for the fiscal year, indicating:

1. The number and type of alleged violations for which counseling was conducted.

2. The number and type of alleged violations for which mediation was conducted.

3. The number and type of complaints filed;

4. The number and type of hearings conducted;

5. The number and type of final decisions rendered reflecting the number for which some
relief was granted.

6. With respect to all the data supplied in items 1 through 5 above, the allegations or
complaints shall be reported according to the Chapter(s) of the EDR Plan involved and,
with respect to allegations or complaints under Chapter II, according to the type(s) of
discrimination alleged.

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REQUEST FOR COUNSELING UNDER EDR PLAN

Submitted Under the Procedures of the Employment Dispute Resolution Plan for the U.S. Bankruptcy Court for the Eastern District of California ***************************

Prior to completing this form, please refer to the Employment Dispute Resolution Plan. Please complete this form legibly.

1. Full Name of Person Requesting Counseling: ____________________________________

2. Mailing Address: ____________________________________________________________

3. Home Phone ()____Work Phone ()__________

4. If you are a court employee, state the following: Court Unit in which employed: _______________________________________________

Job Title: _________________________________________________________________

5. Name and address of the office from which you seek resolution of your dispute. _________________________________________________________ _________________________________________________________ _________________________________________________________

6. Date(s) of alleged incident or decision giving rise to this dispute: ____________________

7. Please summarize the actions or occurrences giving rise to this dispute (if attached on a separate page, please here).

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8. Do you have another person who represents you in this matter? G Yes G No If yes, please the name and contact information for that person.

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9. What corrective action do you seek in this matter?

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Appendix 1

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The EDR Coordinator will advise the employing office of your concerns regarding the matter which you believe constitutes a violation. Disclosure of information relating to counseling will be limited to that information needed to facilitate the counseling process and then on a need-to- know basis only.

This request for counseling is submitted by:

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Signature Date

Submit completed form to:

Human Resources Manager/EDR Coordinator U.S. Bankruptcy Court CA(E) 501 I Street, Suite 3-200 Sacramento, CA 95814

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This section to be completed by EDR Coordinator:

Name of Counselor to whom submitted:

Counselor’s Signature ________________________ Date of Receipt ________________

B-17 Rev. 11/01/2013

REQUEST FOR MEDIATION UNDER EDR PLAN

Submitted Under the Procedures of the Employment Dispute Resolution Plan for the U.S. Bankruptcy Court for the Eastern District of California

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Prior to completing this form, please refer to the Employment Dispute Resolution Plan. Please complete this form legibly.

Please attach a copy of the REQUEST FOR COUNSELING FORM filed in connection with this matter.

1. Full Name of Person Requesting Mediation_____________________________________

2. If any of the information supplied in the REQUEST FOR COUNSELING UNDER EDR

PLAN filed in connection with this matter is no longer accurate, please note the number of the entry on the request for counseling form to be changed, and state the change(s) you wish to make (if attached on a separate page, please indicate so below):

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3. Date counseling was initiated_______________________________________________

4. Date of receipt of the notice of conclusion of counseling

5. Name of person who provided counseling

This request for mediation is submitted by:

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Signature Date Submit completed form to: Human Resources Manager/EDR Coordinator U.S. Bankruptcy Court CA(E) 501 I Street, Suite 3-200 Sacramento, CA 95814 ***********************************************************

This section to be completed by EDR Coordinator:

Name of Person to whom submitted: __________________________________________

Signature of recipient __________________________ Date of receipt ______________

Appendix 2

B-18 Rev. 11/01/2013

COMPLAINT UNDER EDR PLAN

Filed Under the Procedures of the Employment Dispute Resolution Plan for the U.S. Bankruptcy Court for the Eastern District of California

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Prior to completing this form, please refer to the Employment Dispute Resolution Plan for your court unit. Please complete this form legibly.

1. Full Name of Person Filing Complaint
2. Mailing Address: ________________________________________________
_______________________________________________
3. Home Phone ()_______________ Work Phone()______________
4. If you are a court employee, state the following:
Court Unit in which employed: ___________________________________
Job Title: _____________________________________________________
5. Name and address of the Employing Office against whom this complaint is filed
(under the terms of the EDR Plan, all complaints must be filed against an
“Employing Office”, not an individual):
________________________________________________________________
_________________________________________________________________
__________________________________________________________________
6. Identify the Chapter(s) of the EDR Plan under which your complaint is being
filed.
G Chapter II- Equal Employment Opportunity & Anti-
Discrimination Rights
Q Race
Q Color
Q Religion
Q Gender/Sex (includes sexual harassment)
Q National Origin
Q Age
Q Disability
Q Sexual Orientation

G Chapter III- Family and Medical Leave Rights
G Chapter IV- Worker Adjustment and Retraining Notification
Rights

Appendix 3

B-19 Rev. 11/01/2013

G Chapter V- Employment and Reemployment Rights of Members of the Uniformed Services G Chapter VI- Occupational Safety and Health Protections

G Chapter VII- Polygraph Tests

G Chapter VIII- Whistleblower Protection

G Chapter IX- Report of Wrongful Misconduct

7. Date(s) of alleged violation: _________________________________________
   __________________________________________
   __________________________________________

8. Date on which counseling was completed ______________________________
   Date on which mediation was requested ______________________________
   Date on which mediation was concluded ______________________________

9. Name of person who served as Counselor on this matter_______________________

10. Name of person who served as Mediator on this matter _______________________

11. Please summarize the actions or occurrences 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 can provide relevant information

    concerning your complaint. (If there is insufficient space below, you may attach additional pages.)

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[Please attach a copy of any documents that relate to your complaint, such as an application form, resume, letters, notices of discipline or termination, etc.]

B-20 Rev. 11/01/2013

12. What corrective action do you seek from your complaint?

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13. Do you have an attorney or any other person who represents you in this matter?

    G Yes G No

If yes, please provide the following information concerning that person:

Name: __________________________

Address: __________________________

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Work Phone: __________________________ Fax: _____________________

I affirm that the information provided in this complaint is true and correct to the best of my knowledge.

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Signature Date

B-21 Rev. 11/01/2013

Procedures and Form for Review of EDR Presiding Judicial Officer Decision by the Executive Committee of the Judicial Council of the Ninth Circuit

I. Scope of the Rules

These rules govern procedures for petitioning for review of a decision, or summary dismissal, of an Employment Dispute Resolution (EDR) Plan complaint rendered by the chief judge or presiding judicial officer of the court involved (Hearing Officer). Such review is conducted by the Executive Committee of the Judicial Council of the Ninth Circuit (Executive Committee).

II. Filing of Petition for Review

A. Filing the Petition for Review - A party aggrieved by a final decision of the
Hearing Officer or by summary dismissal of a complaint, may petition for
review of that decision or summary dismissal by filing a petition for review
to which is attached a copy of the decision of the Hearing Officer (or a copy
of the summary dismissal).

B. Form of Petition and Supporting Arguments - The petition shall be in
accordance with the “Petition For Review” form shown in Appendix 5.
Included in the petition or as an attachment to the petition shall be a
statement, not to exceed 10 paged in length (8½ X 11 white paper, double-
spaced, single-sided) setting forth the basis for the petition and all
arguments and information in support of the petition. The petition must be
filed with the Executive Committee in a timely manner as set forth in
Section III below.

C. Serving the Petition for Review - The petitioning party must serve the
petition on the Executive Committee by having it delivered to the Circuit
Executive at the following address:

Office of the Circuit Executive Parcel Delivery
Assistant Circuit Executive of HR - EDR Plan 95 Seventh Street
P.O. Box 193939 San Francisco, CA
94103
San Francisco, CA 94119
Fax: 415/ 355-8901

Appendix 4

B-22 Rev. 11/01/2013

III. Filing Deadlines

A. Time for Filing a Petition for Review - A petition for review must be submitted to the Executive Committee no later than 30 days following the date of the final decision of the Hearing Officer or following the date of a summary dismissal of the complaint.

B. Requests for Extension of Time - The Executive Committee may extend the time to file a petition for review and for any other filing specified in these procedures, provided the request is received no later than the required filing date, and provided the petitioner shows good cause or excusable neglect.

C. Determining Time Periods - The word “days” in all filing deadlines in these procedures shall mean calendar days, except that if the deadline date occurs on a Saturday, Sunday or holiday, the deadline shall be extended to the next following Monday or court business day respectively.

IV. Consideration by the Executive Committee

A. General - All reviews will be conducted by the members of the Executive
Committee, and shall be based on the decision of the Hearing Officer or the
summary dismissal of a complaint and any documents submitted by the
parties in response to the directive of the Executive Committee as outlined
below.

B. Scope of Record and Documents to be Considered - Within 20 days
following receipt of the petition for review, the Executive Committee shall
notify the parties concerning what, if any, additional information, i.e., record
(e.g. hearing transcript), documents and/or briefs, may be submitted for its
consideration. Unless notified by the Executive Committee of its request for
additional information, neither party is to submit further information.

C. Oral Argument - Oral argument normally will not be permitted, but may be
ordered by the Executive Committee. Either party may request oral
argument. The petitioner must include the request in the petition; the
respondent may make the request by letter submitted no later than 7 days
from receipt of the petition. The request must explain why oral argument is
necessary. If granted, oral argument, may, at the sole discretion of the
Executive Committee, be conducted via teleconference using video and/or
audio technology.

D. Standard of Review - The decision or summary dismissal of the Hearing
Officer shall be affirmed if supported by substantial evidence.

B-23 Rev. 11/01/2013

E. Summary Disposition - If at any time prior to the final submission of the case for review, the Executive Committee determines that the basis(es) of the request for review are so insubstantial as not to justify further proceedings, the court may issue an appropriate dispositive order.

F. Form of Final Review - The Executive Committee shall issue its decision in writing.

B-24 Rev. 11/01/2013

PETITION FOR REVIEW TO THE EXECUTIVE COMMITTEE OF THE JUDICIAL COUNCIL FOR THE NINTH CIRCUIT

Name of Petitioner or Petitioner’s Counsel Address Telephone # Fax #

Name of Court in Which Hearing Officer’s Decision Was Issued

A.B., Petitioner ) Petition for Review of Decision in ) (Or Summary Dismissal of) Employment ) Dispute Resolution Plan Complaint ) v. ) ) C.D., Respondent )

Notice is hereby given that (name the party petitioning for review), petitioner(s)

in the above named case, hereby petition for review to the Executive Committee of the Judicial Council for the Ninth Circuit from the decision (or summary dismissal of the complaint) by Judge (name of Hearing Officer) entered in this matter on the day of , 20 ).

Attached to this petition is a copy of the Hearing Officers Decision (or summary

dismissal of the complaint). The basis of this petition for review is set forth below [or in the attached statement].

Submitted this day of , 20 .

Signature: Date:

Appendix 5

B-25 Rev. 11/01/2013