EQUAL EMPLOYMENT OPPORTUNITY PLAN AND
FOR THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHAPTER I - GENERAL PROVISIONS
§ 1 Preamble
The Federal Judiciary Model Equal Employment Opportunity Plan and the
Model Employment Dispute Resolution Plan were adopted by the Judicial
Conference of the United States in order to provide rights and protections
to employees of the United States courts. Equal employment opportunity is
provided to all persons regardless of their race, sex, color, national
origin, religion, age (at least 40 years of age at the time of the alleged
discrimination), or disability. A discrimination complaint may also be
filed for sexual harassment and any allegation of restraint, coercion, or
retaliation because a person has raised an allegation of discrimination or
has served as a representative, a witness, or an EEO\EDR Coordinator in
connection with a complaint. This court will promote equal opportunity
through a program encompassing all facets of personnel management,
including recruitment, hiring, promotion, and advancement.
This combined Plan supersedes the current EEO Plan in its entirety. The
duties of the court's EEO Coordinator will be assumed by the Employment
Dispute Resolution Coordinator (EEO\EDR Coordinator established in Section
3 of Chapter VIII of this Plan).
At the direction of the Judicial Conference, this combined Plan was adopted
and implemented on January 1, 1999, and all modifications of this Plan
were approved by the Seventh Circuit Judicial Council. A copy of this Plan
has been and any subsequent modifications will be filed with the
Administrative Office. The court shall annually submit a report on the
implementation of its Plan to the Administrative Office for inclusion in
the Director's Annual Report to the Judicial Conference.
Polices adopted by this court pertaining to adverse action or general
grievance proceedings that do not invoke the rights and protections
afforded under this Plan are not affected by the Plan. Further, court
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 EEO\EDR Plan is not intended to duplicate the protections provided
for the resolution of complaints of judges' misconduct or disability under
28 U.S.C. § 372(c) 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 judges of the United States Court of Appeals,
as well as to all employees of the court of appeals, and federal public
defenders and their staffs. This Plan does not apply to judicial law
clerks or judicial secretaries.
§ 3 Definitions
For purposes of this Plan--
- 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 law clerks, judicial secretaries, contract employees,
externs, interns, applicants for federal defender or bankruptcy judge
positions, private attorneys who apply to represent indigent defendants
under the Criminal Justice Act, volunteer counselors or mediators, or
other individuals who are not employees of an "employing office"
as that term is defined below.
- The term "employing office" includes all offices of the
United States Court of Appeals, including the office of circuit
executive, federal public defenders, clerk of court, staff attorney,
settlement attorney, circuit librarian, and any offices that might be
created in the future. The court is the employing office of a judge's
- The term "court" refers to the Court of Appeals and the
employing office which would be responsible for redressing, correcting
or abating the violations 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
§ 1 General - Discrimination against employees based on
race, color, religion, sex, national origin, age (at least 40 years of age
at the time of the alleged discrimination), disability and sexual
harassment are prohibited.
Except as provided in § 3(A) of this Chapter, court executives must ensure
that vacancies are publicly announced to attract candidates who represent the
make up of persons available in the qualified labor market and that all hiring
decisions are based solely on job-related factors. Reasonable efforts should
be made to see that the skills, abilities and potential of each employee are
identified and developed, and that all employees are given equal opportunities
for promotions by being offered, when the work of the court permits, and within
the limits of available resources, cross-training, reassignments, special assignments
and outside job-related training.
Judges and designated court managers and supervisors must apply equal
employment opportunity practices and policies in their work units. These
include giving each employee a fair and equal opportunity to demonstrate
his or her skills and where those abilities exceed general performance
standards, to be recommended for personnel actions and awards recognizing
such achievements. As resources permit, it also requires providing
training programs which enable employees to develop their job skills
§ 2 Definition - The term "disability" means--
- a physical or mental impairment that substantially limits one or more
of the major life activities of an employee,
- a record of such an impairment, or
- being regarded as having such an impairment.
For extended text see 42 U.S.C. § 12102(2).
§ 3 Personnel Practices
- Recruitment - Each employing office will make reasonable efforts in
the recruitment process to obtain a pool of qualified applicants which
reflect the make up of all such persons in the relevant labor market and
will publicize all vacancies.
- Hiring - Each employing office will make its hiring strictly upon an
evaluation of a person's qualifications and ability to perform the
duties of the position satisfactorily.
- Promotion - Each employing office will promote employees according to
their experience, training, and demonstrated ability to perform duties
of a higher level.
- Advancement - Each employing office will seek, insofar as reasonably
practicable, to improve the skills and abilities of its employees
through cross-training, job restructuring, assignments, details and
CHAPTER III - FAMILY AND MEDICAL LEAVE RIGHTS
General - Title 11 of the Family and Medical Leave Act of 1993,
29 U.S.C. § 2611, applies to court employees in the manner prescribed
in Volume I-C, Chapter X, Subchapter 1630.1, Section R, 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
- 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
- The term "mass layoff" means a reduction in force which--
- is not the result of an employing office closing, and
- results in an employment loss at the single site of employment
during any 30-day period for
- at least 33 percent of the employees (excluding any
part-time employees); and
- at least 50 employees (excluding any part-time
- at least 500 employees (excluding any part-time employees).
For extended text see 29 U.S.C. § 2101.
CHAPTER V - EMPLOYMENT AND REEMPLOYMENT RIGHTS
OF MEMBERS OF THE
General - An employing office shall not discriminate against an
eligible employee or deny an eligible employee reemployment rights or
benefits under the Uniformed Services Employment and Reemployment Rights
Act, 38 U.S.C. § 4301 et seq.
CHAPTER VI - OCCUPATIONAL SAFETY AND HEALTH PROTECTIONS
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 which seek a remedy that is 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
CHAPTER VII - POLYGRAPH TESTS
General - No employee shall be required to take a polygraph
CHAPTER VIII - 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 VII of this Plan shall seek resolution of such claims through the
procedures of this Chapter. Generally, the procedural process consists
- mediation; and
- hearing before the chief judge of the court (or a designated judge)
in which the alleged violation arises.
§ 2 General provisions and protections
- Prohibition against retaliation - Complainants under this Plan have
the right to be free from retaliation, coercion, or interference because
of filing a complaint pursuant to this Plan. Likewise, any person who
participates in the filing or processing of a complaint, such as an
employment dispute resolution coordinator, mediator, witness,
representative, or co-worker, is also entitled to freedom from
- Right to representation - Every individual invoking the dispute
resolution procedures of this Plan and every respondent have 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 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.
- Case preparation - To the extent feasible, every individual invoking
the dispute resolution procedures of the 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.
It is difficult to specify the amount of time that would be
reasonable since the nature and complexity of the case, possible
travel involved, number of witnesses, etc., will all influence
preparation time. Employees and court officials are advised to be
accommodating and flexible in making arrangements to use official time
for case preparation. However, the needs of the court and the ability
to cover employees' absences are relevant factors; employees and court
officials should schedule preparation time to ensure that the vital
work of the court is not disrupted.
- Extension of time - The chief judge or designee may extend any of the
deadlines set forth in this Chapter for good cause. All extensions of
time granted will be made in writing and become part of the record.
- Records - At the conclusion of formal and informal proceedings under
this Plan, all papers, files and reports will be filed with the court's
Equal Employment Opportunity\Employment Dispute Resolution Coordinator ("EEO\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 official personnel action. Records will be maintained for two
calendar years after the conclusion of the process at which time the
files may be destroyed.
§ 3 Designation and duties of employment dispute resolution
coordinator - The court designates Grace Moriarty to serve as the
EEO\EDR Coordinator. The duties of the EEO\EDR Coordinator includes the
- provide information to the court and employees regarding the rights
and protections afforded under this Plan;
- coordinate and organize the procedures and establish and maintain
official files of the court pertaining to complaints and other matters
initiated and processed under this Plan;
- coordinate the counseling of individuals in the initial stages of the
complaint process in accordance with Section 5 of this Chapter;
- collect, analyze, and consolidate statistical data and other
information pertaining to the court's equal employment opportunity and
employment dispute resolution processes; and
- compile and submit an annual report on the implementation of its
EEO\EDR Plan to the Administrative Office for inclusion in the
Director's Annual Report to the Judicial Conference.
§ 4 General disqualification\recusal provision - Whenever
an individual invoking the dispute resolution procedures of this Plan
files a timely and sufficient written statement that the judge, employee
or other person before whom the matter under this Chapter is pending, has
a personal bias or prejudice either against him or her or in favor of any
adverse party, the judge, employee or other person shall proceed no
further therein, but another person shall be assigned by the chief judge
to hear such proceeding.
The written statement shall state the facts and the reasons for the
belief that bias or prejudice exists and shall be filed not less than ten
days after the initiation of each phase of this process or show good cause
for failure to file it within such time. A party may file only one such
statement in any case. It shall be accompanied by a certificate of counsel
of record stating that it is made in good faith. Disqualification
statements should be provided to the chief judge, the person to be
disqualified, the employing office, and the EEO/EDR Coordinator.
§ 5 Counseling
- Initiating a proceeding; formal 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.
- Form and manner of requests - Requests for counseling:
- are to be submitted to the court's EEO/EDR Coordinator;
- must be made in writing;
- must be made within 30 days of the alleged violation or within 30
days of the time the employee becomes aware of the alleged
- job applicants who believe their rights under Chapters II - VII
of this Plan have been violated must first request counseling within
90 days from the appointment date of the new employee selected for
- Who may serve as counselor - The counseling shall be conducted by
the EEO\EDR Coordinator unless the EEO\EDR Coordinator is
disqualified from serving as counselor under Section 4 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. If the dispute involves an alleged
violation of this Plan by a judge, the person who conducts the
counseling shall be a judge designated by the chief judge.
- 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
- Confidentiality - All counseling shall be kept confidential
unless the employee agrees in writing to waive confidentiality of
the counseling process for the purpose of allowing the designated
counselor to contact the employing office or to attempt a resolution
of the disputed matter. A written record of all such contacts must
be kept by the counselor and made available for review by the
affected person (s).
- Form of settlement - The EEO\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.
- 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 EEO\EDR Coordinator.
- Conclusion of the counseling period and notice - The EEO\EDR
Coordinator shall notify the employee in writing of the end of the
counseling period. As part of the notice, the EEO\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 EEO\EDR Coordinator
a request for mediation in accordance with Section 6 of this Chapter.
§ 6 Mediation
- 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 EEO\EDR Coordinator a request for mediation. The request must
be made in writing and must state the claim(s) presented. Failure to
pursue mediation will preclude further processing of the employee's
claim under any other provisions of this Chapter.
- Designation of mediator - Roger Wenthe is the mediator for
disputes. If the complaint involves the Settlement Conference
Office, the chief judge shall designate another person to serve as
mediator. As soon as possible after receiving the request for
mediation, the EEO\EDR Coordinator shall provide written notice of
- Who may serve as mediator - If the complaint alleges that a judge
has violated the rights protected by this Plan, the mediator shall
be a judge designated by the chief judge.
- Purpose of mediation - The mediator shall meet separately and/or
jointly with the employee and his or her representative, if any, and
the representative of the employing office to discuss alternatives
for resolving a dispute, including any and all possibilities of
reaching a voluntary, mutually satisfactory resolution.
- 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.
A written record of all such contacts must be kept and made
available for review by the affected person(s). In addition, in the
event the employee files a complaint pursuant to Section 7 of this
Chapter, the hearing officer shall have access to the record of any
claims raised in mediation.
- 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 appointing officer who is authorized to enter into settlement on
the employing office's behalf.
- 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.
- Conclusion of mediation period and notice - If, at the end of the
mediation period, the parties have not resolved the matter, the EEO\EDR
Coordinator shall provide the employee, the employee's representative,
if any, and the employing office with 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 7 of this Chapter.
§ 7 Complaint, review and hearing
- Complaint - Not later than 15 days after receiving notice of the end
of the mediation period, an employee may file a complaint under
procedures established by the court. The complaint shall be in writing,
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 remedy being sought. The respondent 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.
- Review of pleadings
- Reviewing official - The complaint and any other documents shall
be reviewed by the chief judge of the court, or by another judge of
the court designated by the chief judge. In the event the chief
judge is disqualified under Section 4 of this Chapter, or is
unavailable to serve under this subsection, the reviewing official
shall be designated by the most senior active judge. In the case of
a complaint alleging that an Article III judge has violated rights
protected by the Plan, that judge may elect to have a hearing
conducted by a judge of another court, as designated by the Judicial
Council of the circuit. Any designation of a judicial officer from
another court to hear and decide the case shall be arranged by
agreement of the chief judges of the affected courts.
- Review procedures - After notice to the complainant and an
opportunity to respond, the chief judge or designated judge may
dismiss in writing any complaint that is found to be frivolous or
unduly repetitive of a previous complaint, that fails to state a
claim upon which relief may be granted, or that makes claims that
were not advanced in mediation.
- Hearing procedures
- Hearing officer - If the chief judge or designated judge does not
dismiss the complaint under the preceding subsection, the chief
judge or designated judge, acting as the hearing officer, shall hold
a hearing on the merits of the complaint unless he or she determines
that no material factual dispute exists.
- Specific provisions - The presiding judge may provide for such
discovery and investigations as is necessary. In general, the
presiding judge shall determine the time, place, and manner of
conducting the hearing. However, the following specific provisions
shall apply to hearings conducted under this Section:
- the hearing shall be commenced no later than 60 days after
the filing of the complaint;
- 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(s)
alleged to have violated the complainant's rights protected by
this Plan whenever such individual is a judge or when the
presiding judge otherwise determines such notice to be
- at the hearing, the complainant will have the right 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;
- a verbatim record of the hearing must be kept and shall be
the sole official record of the proceeding;
- in reaching a decision, the chief judge or designated judge
shall be guided by the judicial and administrative decisions
under the laws related to Chapters II through VII of this Plan;
- remedies may be provided in accordance with Section 8 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;
- the final decision of the chief judge or designated judge
must be issued in writing not later than 30 days after the
conclusion of the hearing and any necessary orders shall be
signed by the judicial officer issuing the final decision;
- all parties, or any aggrieved individual, shall have the
right to written notice of any action taken as a result of a
- confidentiality - any person or party involved in the review
process shall not disclose, in whole or in part, any information
or records obtained through or prepared specifically for, the
review process, except as necessary to consult with the parties
or their representatives, and then only with notice to all
parties. A written record of such contacts must be kept and made
available for review by the affected person(s)
All decisions of the chief judge or designated judge are final.
§ 8 Remedies
- When a judge acting pursuant to Section 7 finds that a substantive
right protected by this Plan has been violated, he or she 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 the Plan, or both. A remedy shall be tailored as closely as
possible to the specific violation involved.
- Remedies which may be provided to successful complainants under this
Plan include, but are not limited to:
- placement of an employee in a position previously denied;
- placement in a comparable alternative position;
- reinstatement to a position from which previously removed;
- prospective promotion to a position;
- priority consideration for a future promotion or position;
- 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;
- records modification and/or expungement;
- "equitable" relief, such as temporary stays of adverse
- granting of family and medical leave; and
- accommodation of disabilities through the purchase of specialized
equipment or the restructuring of duties and work hours.
- Remedies which are not legally available include:
- payment of attorney's fees (except as authorized under the Back
- compensatory damages;
- punitive damages; and
- overtime pay.
§ 9 Record of final decisions - Final decisions will be
made known to those parties involved in the complaint process. Final
decisions under this Plan shall be made available to the public in
accordance with the chief judge's discretion
CHAPTER IX - ANNUAL REPORT
§ 1 Preparation of the Report on Complaints
The EEO\EDR Coordinator will prepare an annual report for the year
ending September 30, consolidating the data and statements received for
each employing office. The report will include tables to be provided by
the Administrative Office of the United States Courts consolidating the
information provided by each employing office. The report will also
describe instances where significant achievements were made in providing
equal employment opportunities, will identify areas where improvements are
needed, and will identify factors inhibiting achievement of equal
employment opportunity objectives. In addition, the annual report will
- The number of complaints initiated;
- The types of complaints initiated according to race, sex, color,
national origin, religion, age or disability;
- The number of complaints resolved informally;
- The number of complaints resolved formally without a hearing; and
- The number of complaints resolved formally with a hearing.
(The foregoing information will not identify the names of the parties
Upon approval of the court, this report will be submitted by the Chief
Judge to the Administrative Office of the United States Courts by November
30 of each year.
§ 2 Objectives
Each employing office will develop annually its own objectives which
reflect any improvements needed in recruitment, hiring, promotions, and
advancement, and will prepare a specific plan for the EEO\EDR Coordinator
explaining how those objectives will be achieved.
§ 3 Availability of the Report on Complaints
A copy of the report will remain in the Court and will be made available
to the public upon request.
CHAPTER X - NOTICE
Copies of these procedures shall be given to all employees and, upon
request, to members of the public.