Section 5.000 Policy Prohibiting Discrimination, Harassment, Retaliation, and Complaint Resolution Procedure

The Executive Office of the Trial Court has released Section 5.000 of the Personnel Policies and Procedures Manual: The Policy Prohibiting Discrimination, Harassment, and Retaliation, and Complaint Resolution Procedures pursuant to G.L. c. 211B §8.

Preamble

The Trial Court is committed to providing equal access to justice in a safe and dignified environment. To do this we must deliver justice with fairness, effectiveness, efficiency, consistency, and in a manner that strengthens and supports diversity, equity, and inclusion. We must also provide support to a professional, well-trained, engaged, collaborative, culturally competent, and diverse workforce.

It is our goal to provide prompt and courteous service to the public by committed and dedicated professionals in a manner that inspires public trust and confidence. We strive to be sensitive and adaptive to cultural, racial, ethnic, gender, disability, and language differences, and to create a work environment that permits us to serve the public better.

We value persons of all backgrounds and appreciate each person’s unique contributions and viewpoints. We expect all employees to treat each other and all court users with civility, respect, and professionalism that welcomes and supports all individuals regardless of their identity.

In furtherance of these goals, the Trial Court has adopted this Policy prohibiting discrimination, harassment, and retaliation, and providing methods of resolving complaints.

5.100 Policy Statement Prohibiting Discrimination, Harassment, and Retaliation

The Trial Court recognizes the right of all employees, supervisors, managers, and elected and appointed officials including Judges, Clerks, Registers, and the Recorder, (collectively, “Employees”) to work in an environment in which individual dignity is respected. The Trial Court also recognizes the right of all litigants, witnesses, attorneys, jurors, members of the public, (collectively “Court Users”) and service providers, including but not limited to contractors, interns, and volunteers, (collectively “Service Providers”) to be treated with dignity and respect by all Trial Court Employees. In turn, the Trial Court expects Court Users and Service Providers to conform their conduct to the terms of this policy.

Towards these ends, the Trial Court is committed to creating and maintaining a workplace free from discrimination, harassment, and retaliation on the basis of actual or perceived membership in a protected class, which includes race, color, sex (including sexual harassment, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth, and breastfeeding), age (40 or over), disability, including a request for reasonable accommodation, sexual orientation, gender identity (including transgender status), military service or veteran status, religion or religious creed, including a request for reasonable accommodation, national origin, genetic information, ancestry, participation in discrimination complaint-related activities, or any other classification protected by law.

It is the goal of the Trial Court to promote a workplace that is free of sexual and gender harassment. Sexual and gender harassment of employees occurring in the workplace or impacting users of the Trial Court or in other settings associated with one’s employment or one’s use of the Trial Court will not be tolerated. Allegations of sexual and gender harassment will be taken seriously; the Trial Court will respond promptly to complaints of sexual harassment and where it is determined that such inappropriate conduct has occurred, the Trial Court will act promptly to eliminate the conduct and impose corrective action where appropriate.

Retaliation against anyone based on a complaint about or opposition to discrimination or harassment based on protected class, including a request for reasonable accommodation, or participation in or cooperation with an investigation of such a complaint, is prohibited. No Employee may retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for filing a complaint under this Policy or for otherwise exercising rights and responsibilities under this Policy.

Conduct prohibited by this Policy includes conduct not only in the workplace, but also in any work-related settings, such as work-related trips, meetings or conferences, or designated court social gatherings during work hours or after work hours. The use of Trial Court resources, including technology resources, such as computers, internet access, email, cell phones, or other electronic devices to discriminate, harass, or retaliate against anyone based on membership in a protected class is prohibited. Employees who harass, discriminate against, or retaliate against Employees, Court Users, or Service Providers in non-work-related settings and/or through the use of personal resources, including social media and/or applications, may also be disciplined for violations of this Policy or the Standards of Conduct in Section 16.100 of this Personnel Policies and Procedures Manual.

Because the Trial Court takes allegations of discrimination, harassment, and retaliation seriously, Employees, Service Providers, and Court Users, are encouraged to make a complaint if they believe they have been treated unfairly or have knowledge of another individual having been treated unfairly in violation of this Policy (“Reporting Party”). The Trial Court will inform the person against whom the complaint has been brought (“Responding Party”) of the allegations made. See Section 5.804 below. The Trial Court will respond promptly and appropriately to complaints, and where it is determined that inappropriate conduct has occurred, will act promptly to eliminate the conduct, and will take remedial or corrective action as is necessary, including disciplinary action where appropriate.

This Policy also prohibits certain conduct that may not rise to the level of a violation of law. While this Policy sets forth the goals of promoting a workplace free from discrimination, harassment, and retaliation, the Policy does not limit the Trial Court’s authority to discipline or take remedial action for conduct that violates other sections of this Personnel Manual or that is otherwise unacceptable, regardless of whether that conduct constitutes discrimination, harassment, or retaliation, under the law or this Policy.

The Trial Court has assigned the Office of Workplace Rights & Compliance (“OWRC”) the primary responsibility to conduct investigations, seek to remedy the effects of prohibited conduct, and prevent its recurrence.

A. Prohibited Conduct

The Trial Court holds its Employees to a high professional standard. Conduct which does not meet the legal definition of discrimination or harassment but nevertheless is inappropriate and may lead to discrimination or harassment may still be found to be a violation of this Policy.

1. Prohibition Against Discrimination

Trial Court Employees are prohibited from discriminating, harassing, or retaliating against any Trial Court Employee, applicant for employment, Service Provider, or Court User, based on actual or perceived membership in a protected class. This Policy applies to all areas of employment, including but not limited to, recruitment, testing, screening, hiring, selection for training and professional development, reclassification, transfer, promotion, assignments, demotion, layoff, discipline, termination, compensation, benefits, and all other terms and conditions of employment, as well as interactions with and treatment of Court Users and Service Providers.

2. Prohibition Against Discriminatory Harassment

No Employee may engage in verbal, nonverbal, or physical conduct that denigrates or shows hostility toward an individual, including Employees, Service Providers, and Court Users, and that has the adverse effect of creating an intimidating, hostile, or offensive working environment because of actual or perceived membership in any protected class, such as harassment based on race, gender, sexual orientation or gender identity, religion, disability or any other category in Section 5.100, above.

Harassing conduct may include, but is not limited to, the following:

• Physical Conduct: Threatening, intimidating, or hostile acts.
• Non-Verbal Conduct: The display or transfer - through any form of distribution, including mail, hand delivery, or communication systems such as internet, social media, applications, email, or fax - of photographs, literature, cartoons, pictures, calendars, graffiti, or other material, which show hostility towards, stereotype, denigrate, or are degrading, to persons in a protected class.
• Verbal Conduct: Statements, jokes or comments, epithets and/or slurs, based on assumptions or stereotypes that convey a denigrating message (either intentionally or unintentionally) to individuals based on their protected status.

3. Prohibition Against Sexual Harassment

Sexual harassment is a form of sex discrimination. Sexual harassment means unwelcome conduct of sexual nature, such as sexual advances, requests for sexual favors, and verbal, non-verbal, or physical conduct of a sexual nature where:

• Submission to or rejection of such speech or conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment, or is made, either implicitly or explicitly, a basis for an employment decision; or,
• The speech or conduct creates an intimidating, hostile, humiliating, or sexual offensive environment that is sufficiently severe or pervasive as to interfere with a reasonable person’s work performance or to alter the conditions of employment in a way that creates a hostile work environment.

The Trial Court holds its Employees to a high professional standard. Conduct which does not meet the legal definition of sexual harassment but nevertheless is inappropriate and may lead to sexual harassment may still be found to be a violation under this Policy.

a. Key Factors in Identifying Sexual Harassment

Sexual harassment occurs in a wide variety of situations that share a common element - the inappropriate introduction of sexual activities or comments into the workplace. When trying to determine whether certain behavior violates this Policy, and when thinking about whether a person’s speech or behavior has created a hostile work environment, consider whether the behavior is:

• Sexual, as opposed, for instance, to an occasional compliment of a socially acceptable nature;
• Repeated or pervasive. A minor, isolated incident may or may not violate the Policy, depending on the circumstances;
• Severe. A single serious incident, such as a supervisor’s demand for sexual favors or a sexual assault, will violate the Policy;
• Unwelcome, to even just one person – whether the target of the behavior or a bystander:
• Intimidating, hostile, or offensive, whether it was the actor’s intention to offend or not; or,
• Interfering with the Employee’s, Court User’s, or Service Provider’s ability to do his/her/their job or court-related activity.

The following general principles apply when determining what constitutes sexual harassment:

• The person who is the subject of a complaint of sexual harassment may be any Employee, including an appointed or elected official, manager, supervisor, or co- worker, or a Service Provider, or Court User.
• A person complaining about sexual harassment may be any Employee, including an appointed or elected official, manager, supervisor, or a Service Provider, or Court User.
• The effect on the individual alleging sexual harassment – rather than intention of the person who is the subject of the complaint of harassment – is generally the focus of the analysis.
• The person complaining about sexual harassment may identify as any gender and the person who is the subject of a complaint of sexual harassment may identify as the same or a different gender.
• The person complaining about sexual harassment does not have to identify as a different gender or sexual orientation from the person accused of harassment.
• The person complaining about sexual harassment does not have to be the subject of the offensive behavior. For example, a witness who is not the subject of behavior may make a complaint if offended by the conduct.
• The person complaining about sexual harassment need not suffer any economic loss or loss of job opportunity as a result of the conduct.

b. Examples of Conduct Prohibited by this Policy

Sexual harassment can take many forms. This conduct may involve physical, verbal, or non- verbal conduct. In some instances, the conduct may be repeated or pervasive, and in others a single serious incident is enough to constitute sexual harassment. Sexual harassment is unacceptable in any form. The following are some examples of conduct prohibited by this Policy:

Physical Conduct

• Coerced or forced kissing, groping, sexual assault;
• Stalking, in person or through electronic or other forms of communication; or,
• Uninvited, unwelcome physical contact such as kissing, touching, pinching, grabbing, hugging, patting, or brushing up against a person.

Verbal Conduct

• Demands for sexual favors accompanied by an implied or overt threat concerning an individual’s employment status, security, or treatment;
• Derogatory comments and/or slurs about an individual’s gender, gender identity, or actual or perceived sexual orientation;
• Unwanted sexual flirtations or propositions;
• Speaking in the workplace of one’s sexual activity or inquiring about or commenting on another’s sexual activity;
• Comments about an individual’s body;
• Innuendos of a sexual nature;
• Verbal innuendos that relate to or reflect negatively on a particular gender, gender identity, or actual or perceived sexual orientation; or,
• Jokes, language, epithets, or remarks that have the purpose or effect of stereotyping, demeaning, or making fun of an individual based upon his/her/their sex, gender, gender identity, or actual or perceived sexual orientation.

Non-Verbal Conduct

• Indecent exposure;
• Arranging to be alone with a person for the purpose of making sexual advances;
• Unwanted sexual flirtations and or advances;
• Obscene gestures or suggestive or insulting sounds (e.g., catcalls, whistling);
• Staring or leering;
• Purposefully, and unnecessarily, violating a person’s personal space; or,
• Display or transfer – through any form of distribution including communication systems such as internet, social media applications, email, or fax – of photographs, literature, cartoons, pictures, calendars, graffiti or other material, which are sexually suggestive or degrading to a particular gender, gender identity, or actual or perceived sexual orientation.

4. Prohibition Against Retaliation

Retaliation constitutes an abuse of authority and is prohibited.

It is prohibited for anyone to take adverse action against someone who has reported or objected to harassment or discrimination based on a real or perceived protected class. This includes asking for a reasonable accommodation, participating in an investigation into the complaint or cooperating with an investigation.

A retaliation claim may be made if a person believes that an adverse action was taken against them because they participated in the OWRC process, or other similar process such as MCAD or EEOC, or other protected activity such as opposing discriminatory or harassing conduct.

Complaints of retaliation will be viewed as separate and distinct from the original complaint and may form the basis for a new complaint. Retaliation may result in disciplinary action even if the original harassment or discrimination complaint was not substantiated.

B. Limitations on Certain Relationships

Dating, physical, or intimate sexual relationships between certain Employees, Service Providers, and Court Users pose serious issues not only under this Policy, but under the Trial Court Standards of Conduct, state ethics and conflict of interest laws, and the ethical rules applicable to employees, and elected and appointed officials.

Judges, Clerks, Registers, the Recorder, and Managers. Elected or appointed officials, including Judges and Clerks, Registers, and the Recorder, as well as managers and supervisors may not initiate or maintain a dating, physical, or other sexually intimate relationship with any Employee where the elected or appointed official, manager, or supervisor exercises management oversight or influence or has an actual or apparent supervisory role over or reporting relationship with the Employee.

No Employee who has supervisory or custodial authority over any person appearing before the court may initiate or maintain a dating, physical, or sexually intimate relationship with a person over whom the employee has supervisory or custodial authority.

No employee may initiate or maintain a dating, physical, or other sexually intimate relationship with a Service Provider or Court User where the Employee has actual or apparent authority to exert influence over the Service Provider or Court User, including but not limited to, the authority to influence judicial proceedings, the scheduling, status, or disposition of cases, the retention of Service Providers, or custody or conditions of confinement.

Violation of this Policy may constitute a violation not only of this Policy, but of the Employee’s ethical obligations, and may result in disciplinary action, up to and including termination or, in the case of a Judge or Clerk, referral to the Commission on Judicial Conduct or the Departmental Chief Justice, who may refer the matter to the Committee on Professional Responsibility for Clerks of Court, respectively.

In rare circumstances, it may be possible to address a violation of this Policy based on immediate disclosure and prompt remedial measures, including reassignment and/or transfer. In the event that any relationship referenced in this Policy exists, the person in a position of authority involved in the relationship must notify the relevant manager so that appropriate steps may be taken to ensure full compliance with this Policy, the Standards of Conduct in Section 16.000 of this Manual, and applicable ethical requirements. In addition, the subordinate involved in the relationship is encouraged to notify the OWRC if the other person involved in the relationship fails to notify his/her/their manager.

Co-workers. Where a dating or physical relationship arises between coworkers that is not otherwise prohibited by this Policy, the parties must conduct themselves in a professional manner while involved in work related activities. If a dating or physical relationship between co-workers creates a conflict of interest or favoritism, creates an unacceptable perception of a conflict of interest or favoritism, causes dissension, interrupts the workflow of the court, or otherwise creates a negative work environment, the Trial Court may take action which could include, but is not limited to, reassignment of one or both parties, or, depending on the conduct involved, discipline.

The Trial Court expects co-workers involved in a dating or physical relationship to maintain the highest ethical and professional standards:

• The relationship must be entirely voluntary;
• The relationship must not have a negative impact on work performance or Trial Court operations;
• One person in the relationship must not give preferential treatment to the other person in the relationship, or that person’s friends or family members; and,
• If such a relationship ends, each person must continue to treat the other in a professional manner; neither may harass nor retaliate against the other.

5.200 Reasonable Accommodations

The Trial Court will provide reasonable accommodations in accordance with state and federal laws for those requesting accommodations for their sincerely held religious beliefs, customs, practices, and/or observances to ensure that an individual may apply for a job, perform the job, and/ or enjoy the benefits, terms, conditions, or privileges of employment, unless doing so creates an undue hardship. A person may contact OWRC to discuss and seek such accommodations.

The Trial Court will provide reasonable accommodations in accordance with state and federal laws for qualified individuals with disabilities, to include applicants, Employees, Service Providers, and Court Users, unless doing so creates an undue hardship or poses a direct threat to the individual or others in the workplace. In addition, the Trial Court recognizes its obligation to provide reasonable accommodations to its Employees for a pregnancy or pregnancy-related condition.

Any Court User or Service Provider who requires a reasonable accommodation should contact the ADA Assistance Coordinator of the courthouse they are visiting for assistance. When a party, witness or court user wishes to request an accommodation that affects a court hearing, trial or court procedures in a case, a Motion for Reasonable Accommodation Template must be submitted to the court in advance of the hearing or court session. The Massachusetts Trial Court Request for Reasonable Accommodation Form is used for requesting services and usually needs to be submitted two weeks in advance of the court proceeding. These forms and instructions can be found on mass.gov.
 

Courts Americans with Disabilities Act (ADA) forms, instructions, and information 

An Employee who requires a reasonable accommodation should contact the Human Resources Department (“HR”) to request such an accommodation.

New HR Forms for Accommodations & Certain Leaves Effective June 1, 2022 

Alternatively, an Employee may make a request for a reasonable accommodation to his/her/their local manager but is not required to do so and may speak directly with Human Resources for guidance on the process.

A reasonable accommodation is a modification or adjustment to the work environment that allows an individual with a disability, pregnancy-related condition, or sincerely held religious belief to enjoy equal access to all employment opportunities and workplace benefits as others.

HR will determine what constitutes an appropriate accommodation for an Employee and whether the accommodation requested is reasonable and feasible. This decision is made on a case-by-case basis through an interactive process with the individual requesting an accommodation, which generally includes review of appropriate documentation from the individual’s medical provider for disability or pregnancy related accommodations. It is the responsibility of the individual requesting accommodation to provide sufficient information, upon request, to support the need for the accommodation requested. Personal medical records supporting the request should be provided only to HR. The Trial Court may require updated medical documentation from an appropriate healthcare provider upon receipt of a request to extend, modify, or renew an accommodation.

A complaint may be filed with OWRC if an ADA accommodation was denied or not implemented or if an interactive dialogue did not occur.

5.300 Responsibilities of Employees, Supervisors, and Managers

All Trial Court Employees are expected to know about and follow this Policy. Each individual has a responsibility to conform to his, her, or their behavior to insure a working environment free of discrimination, harassment, and retaliation. Any Employee who violates this Policy may be subject to disciplinary action, up to and including termination of employment. If a Service Provider or a Court User engages in discriminatory or harassing conduct, the OWRC shall inform the employer or licensing or other supervising entity, if any, of the person alleged to be in violation of the Policy in writing of the complaint and take any other appropriate action.

Trial Court Employees who are also supervisors or managers have additional responsibilities. Supervisors and managers are in leadership positions and should serve as a model to other Trial Court employees of what is respectful and professional conduct.

Judges, Clerks, Registers, the Recorder, and other management employees have an obligation to report when they are informed of or observe conduct that is discriminatory or harassing toward a Trial Court Employee or toward a Service Provider or Court User. Failure to report such conduct may result in disciplinary action by the appropriate authority. The report should be made in accordance with Section 5.800.

Elected or appointed officials and managers are also responsible for responding to allegations of discrimination or harassment by Service Providers or Court Users. In the case of Service Providers or Court Users, the OWRC shall inform the employer or licensing or other supervising entity, if any, of the person alleged to be in violation of the Policy in writing of the complaint and take any other appropriate action.

5.400 Responsibilities of Judges, Clerks, Registers, and the Recorder

As leaders in the Trial Court, Judges, Clerks, Registers, and the Recorder bear heightened responsibilities to refrain from violations of this Policy, should be mindful to treat all Employees with fairness, dignity, and respect, should avoid favoritism or the appearance of favoritism, and should report conduct inconsistent with this Policy. Conduct in violation of this Policy by a Judge, Clerk, Register or the Recorder may constitute a violation of the Code of Judicial Conduct or the Code of Professional Responsibility for Clerks of the Courts, respectively.

5.500 Required Action by Supervisors and Managers

A manager who becomes aware of conduct that constitutes a violation of the Policy – whether or not a complaint has been made - must take appropriate action to stop the conduct. A supervisor should notify the OWRC and his/her/their manager, or regional manager, if appropriate, of such an incident to determine the most appropriate response.

Where an employee has not come forward with a specific complaint, but the manager is aware of an incident that is in violation of this Policy, the manager should contact the OWRC to seek advice about an appropriate response by the manager. Contacting the OWRC allows the Trial Court to handle violations on a fair and consistent manner, track such behavior and plan systemic efforts to eliminate it. It also helps to ensure that individuals who move from one location to another are held accountable for their behavior in all settings. As set forth in Section 5.802(C) below, in the event of a situation in which safety is a concern or inappropriate conduct is occurring in the moment, the manager should take appropriate action immediately and report the incident immediately thereafter. HR and Legal are available to be consulted before imposing discipline to ensure that the imposition of discipline is appropriate to remedy the problem, and is fair, equitable, and proportionate. HR must be consulted before placing an employee on paid administrative leave.

In some instances, a manager may become aware of conduct that is unprofessional, or conduct that constitutes a single, isolated, and minor instance of a violation of the Policy, which the manager has fully addressed. The manager has discretion whether to contact the OWRC in this situation but is strongly encouraged to do so. However, should the behavior continue, repeat, or escalate, the manager shall notify the OWRC.

5.600 Corrective Action for Policy Violations

The OWRC will provide written notification to the party who made the complaint and the party against whom the complaint was made of the findings of the investigation in accordance with Section 5.806. A copy of this notice will also be sent to the appropriate manager(s) and HR. Where the complaint involves employees within a court department, the Departmental Chief Justice will also be notified. Where the complaint involves employees within a department of the Office of Court Management (“OCM”), the Probation Department, or Office of Jury Commissioner, the Director of the Department, or the appropriate Commissioner, shall be notified. The parties involved in the complaint will be asked to report any possible retaliation or further incidents immediately.

If an investigation reveals that an Employee has engaged in conduct in violation of this Policy or other Trial Court policies, the appropriate manager shall determine and impose corrective action (which can include remedial measures and/or disciplinary action, up to and including termination). The action taken will depend upon the nature and seriousness of the violation, as well as prior violations. Disciplinary action will be taken in accordance with the discipline provisions set forth in this Trial Court Personnel Policies and Procedures Manual or pursuant to other appropriate disciplinary provisions. The appropriate manager will timely inform OWRC of the remedial measures and/or disciplinary action taken.

5.700 Provisions for Investigation of Complaints Against Judges, Clerks, Registers, and the Recorder.

The law creates procedures for oversight and review of the conduct of Judges. The Rules of the Supreme Judicial Court create procedures for the oversight and review of the conduct of Clerks, including Registers and the Recorder. This Policy reflects those procedures.

In any inquiry or investigation of a complaint against a Judge, Clerk, Register, or the Recorder, alleging a violation of this Policy, the Departmental Chief Justice, in determining the nature and scope of investigation, should consult with the OWRC or may designate that any portion of the inquiry or investigation be conducted by the OWRC, or in conjunction with any investigator designated by the Departmental Chief Justice.

A. Complaints Against Judges

The law states that each Departmental Chief Justice is responsible for the oversight and discipline of any justice assigned or appointed to that department. The statute says that “the chief justice shall have the power to discipline any justice assigned or appointed to his department who refuses or fails to comply with any order concerning the performance of his duties as justice or any other lawful order of the chief justice or deputy court administrator of his department.” It also says that “all proceedings, documents, and other matters relating to such discipline shall at all times be confidential and not open to the public unless the justice appealing the disciplinary action agrees that the same shall not be confidential, or unless the Supreme Judicial Court determines that it is in the public interest for any such proceeding, document, or other matter relating to such discipline to be made public.” G. L. c. 211B, § 10 (xvi). For this reason, complaints against Judges are directed in the first instance to the Departmental Chief Justice who is required to maintain confidentiality in the manner specified by the statute.

In addition to any complaint made or investigation conducted in accordance with this Policy, complaints may be filed with the Commission on Judicial Conduct. The Legislature has provided the Commission on Judicial Conduct with the “authority to receive information, investigate, conduct hearings, and make recommendations to the supreme judicial court concerning allegations of judicial misconduct.” G. L. c. 211C, § 2. With specified exceptions, “all proceedings of the commission shall be confidential until there has been a determination of sufficient cause and formal charges have been filed with the supreme judicial court.” G.L. c. 211C, § 6.

Complaints received by or forwarded to the OWRC, alleging that a Judge has violated this Policy, will be referred to the appropriate Departmental Chief Justice without further screening or inquiry. The Departmental Chief Justice should consult with OWRC about the complaint. The OWRC will notify the person filing the complaint of the referral within 2 (two) business days of receipt of the complaint. Complaints received by a Departmental Chief Justice will be logged and the person filling the complaint will be notified of the receipt of the complaint promptly, preferably within 2 (two) business days, circumstances permitting. The Departmental Chief Justice, or designee, will take the steps necessary and appropriate to review, investigate, and resolve the complaint in a manner substantially consistent with the general procedures in Sections 5.802 through 5.804 of this Policy, and consistent with applicable law.

B. Complaints Against Clerks, Registers, and the Registers, and the Recorder

Rule 3:13(2) of the Rules of the Supreme Judicial Court states that complaints against Trial Court Clerks (defined to include Registers and the Recorder) shall be referred to the Departmental Chief Justice who shall investigate, and impose discipline as appropriate, unless referred by the Chief Justice to the Trial Court Committee on Professional Responsibility for Clerks of the Courts pursuant to (4) (B) and (C).

Complaints received by or forwarded to the OWRC alleging that a Clerk, Register, or the Recorder, has violated this Policy will be logged by the OWRC and referred to the appropriate Departmental Chief Justice without further screening or inquiry. The Departmental Chief Justice should consult with OWRC about the complaint. The OWRC will notify the person filing the complaint of the referral promptly, preferably within 2 (two) business days of receipt of the complaint. Complaints received directly by a Departmental Chief Justice will be logged and the person filing the complaint will be notified of the receipt of the complaint preferably within 2 (two) business days, circumstances permitting. The Departmental Chief Justice, or designee, will take the steps necessary and appropriate to review, investigate, and resolve the complaint substantially consistent with the general procedures in Sections 5.802 through 5.804 of the Policy, consistent with applicable law, and may also refer the matter to the Trial Court Committee on Professional Responsibility for Clerks of the Courts pursuant to Rule 3:13 (4) (B) and (C).

5.800 Complaint and Investigation Procedures Overview

This section of the Policy outlines the process for bringing and investigating a complaint of discrimination or harassment on the basis of membership in a protected category, or retaliation based on protected conduct. It includes:

• How to make a complaint and to whom it may be made;
• How and when a complaint may be resolved by informal means;
• How and when a complaint will be investigated;
• What to expect if you are a witness or have information concerning a complaint;
• What an elected or appointed official or manager may have to do if he/she/they become aware of a complaint; and,
• How the person making the complaint and the persons who have been named in the complaint will receive the results of the investigation

Although it is hard to provide a firm timeframe for handling each and every complaint, the process of evaluating and investigating a complaint should not take longer than 30 business days, although that time period may be extended depending on the circumstances. Extenuating circumstances include the complexity of the factual or legal issues, prolonged unavailability of key witnesses, or unforeseen external factors. If the investigation cannot be completed within 30 business days, OWRC shall notify the Reporting Party and the Responding Party of such extended investigation time. The notice shall be in writing (via electronic mail), shall include the reason(s) for the delay, and a good faith estimate of the additional time it will take to complete the investigation. OWRC shall also provide such notice for each additional 30-calendar day investigatory period beyond the initial investigatory extension.

Complaints may be filed at any time, but the Trial Court’s ability to take action may be limited by such factors as employment status of the Parties or witnesses. A prompt report will enable the Trial Court to most effectively respond to a complaint and redress the effect of the prohibited conduct.
 

5.801 Making a Complaint

A. Who Can Make a Complaint?

Any Employee, Court User, or Service Provider may make a complaint under this policy, either orally or in writing. (“Reporting Party”).

B. To Whom Can a Complaint be Made?

If you are a Trial Court Employee and you believe that you have been discriminated against, harassed, or retaliated against in violation of this Policy, or have been improperly denied a reasonable accommodation, or have witnessed or been subject to conduct that is otherwise inconsistent with this Policy, you may make a complaint to your immediate manager, to another manager, to your departmental administrative office, or to the OWRC Helpline 617-878-0411 or using the OWRC Complaint Form or emailing OWRC at [e-mail] or contacting any of the Offices listed at the end of this Policy.

If your complaint involves your manager, you do not have to bring your complaint to that manager, you may bring your complaint to another manager or the OWRC Helpline 617-878-0411 or [e-mail] or to any of the Offices or persons listed at the end of this Policy.

If your complaint involves the Chief Justice of the Trial Court or the Court Administrator, you may bring your complaint to any manager, to the OWRC Helpline 617-878-0411, to any of the Offices listed at the end of this Policy or by mail to the Supreme Judicial Court, Attn: Chief Justice of the Supreme Judicial Court, One Pemberton Square, Boston, Massachusetts 02108, or by telephone to 617-557-1135.

Any Employee, Service Provider, or Court User, who though not involved, learns about behavior that may violate the Policy may also make an oral or written complaint, using the OWRC Helpline or bringing the complaint to the attention of any of the Offices listed at the end of this Policy.

Anonymous complaints, including complaints made on the OWRC Helpline, will be considered to the extent that the information provided includes sufficient facts. Because anonymous complaints may be more difficult to investigate, you are encouraged to identify yourself when bringing a complaint.

If you are a Service Provider or Court User and want to make a complaint that a Trial Court Employee or other Service Provider has violated this Policy, you may contact the OWRC Helpline or any of the Offices listed at the end of this Policy.

C. What Should a Trial Court Manager Do About a Complaint?

Any elected or appointed official, including Judges, Clerks, Registers, and the Recorder, as well as managers who receive an oral or written complaint or otherwise have knowledge of conduct that may violate this Policy must promptly forward such complaint or information to the OWRC or, as specified in Section 5.700, if the person alleged to have committed the violation is a Judge, Clerk, Register, or the Recorder, to the Departmental Chief Justice, for action.

In the event of a situation in which safety is a concern or inappropriate conduct is occurring in the moment or is potentially imminent, the manager shall take any necessary appropriate action immediately and report the complaint immediately thereafter. The manager should consult with the OWRC and HR regarding interim measures or corrective action. No employee may be placed on administrative leave without the prior approval of HR. The complaining party will be notified of any such interim measures within two business days of the measures being implemented.

D. What Should a Complaint Contain?

A complaint may be made orally or in writing. If you make an oral complaint, the person receiving your complaint, or the OWRC will fill out the OWRC Complaint Form with the information you provide and you may be asked to review it for accuracy and completeness and to sign and date it.

The OWRC Complaint Form for filling a written complaint may be found at the end of this Policy, and is available on the Trial Court internal and external websites Trial Court Personnel Policies & Procedures Manual. It may be filled out on-line and sent to the OWRC or you may print it out and send it to any of the Offices listed at the end of this Policy.

A complaint should include the name and preferred contact information for the person bringing the complaint, the name and contact information for the person or persons alleged to have violated this Policy if known, the basis of the complaint (that is, what happened because of your or another person’s actual or perceived membership in a protected class or the claim of retaliation) and a brief summary of what happened, when, and where.

If the complaint proceeds to a full investigation, a copy of the complaint may be given to the person or persons against whom the complaint is filed, subject to redaction of any contact information or highly personal information, unless providing a copy of the complaint would create a substantial risk that evidence material to the investigation might be altered, lost or destroyed, or there is a substantial danger of retaliation against the person bringing the complaint or any other person mentioned in the complaint.

E. Which Office will Handle the Complaint?

Except as otherwise provided in Section 5.700 all complaints regarding a violation of the Policy, no matter with whom they are originally filed, will be referred to the OWRC unless the complaint is against the OWRC, in which case it will be referred to the Court Administrator. The OWRC takes all reasonable steps to notify the person bringing a complaint within 2 (two) business days when a complaint has been received by the OWRC. In the discretion of the Director of the OWRC, relevant managers will be notified to explore whether it is possible to resolve the matter informally or whether interim action is required.

Under G.L c. 211B, § 10, each Chief Justice of a Trial Court Department has authority over Judges, Clerks, Registers, or the Recorder, within his/her/their department. For this reason, complaints against a Judge, Clerk, Register, or the Recorder, will be referred to the Departmental Chief Justice, who will determine how to proceed as set forth in Section 5.700

Any complaint against a Departmental Chief Justice will be referred to the Chief Justice of the Trial Court and a complaint against the Chief Justice of the Trial Court or the Court Administrator will be referred to the Supreme Judicial Court.

5.802 Intake, Initial Screening, Interim Measures, and Informal Resolution

A. Intake

Except as otherwise provided in Section 5.700, the OWRC will log all complaints and maintain records of those complaints and their disposition.

B. Initial Screening

If, after initial screening and review of the complaint files, if any, it is clear that the complaint does not constitute a violation of this Policy, it may be closed or referred to some other department. The OWRC will contact the person bringing the complaint to discuss referral to another office.

C. Interim Measures

In appropriate circumstances, including where there are safely concerns, the OWRC will notify HR and the appropriate manager(s) of such concerns. Those parties will determine whether it is appropriate for an Employee or Service Provider against whom a complaint is made to be temporarily transferred, placed on paid administrative leave, directed to have no contact with the person who made the complaint, or otherwise directed to take or refrain from taking certain action. The Reporting Party will be notified of any such interim measures within two business days of the measures being implemented. Where appropriate, and upon request by the person bringing the complaint, they may be temporarily transferred or placed on administrative leave. Any transfer must comply with the requirements of the G.L c. 211B, § 10 (vi). The placement of any individual on paid administrative leave requires the approval of HR. If the Complainant’s request for a transfer or administrative leave is denied, OWRC will inform them in writing of the denial and reason(s) for the denial. Such interim measures are not forms of discipline and do not indicate any conclusion regarding the complaint.

If a member of the public or other Court User is engaging in conduct in violation of this Policy, a manager may have the individual removed from the court premises or take other appropriate action, consistent with the requirements of access to justice and due process for persons appearing before the court. The manager shall document all actions taken under this provision.

D. Mutual Resolution

If, after the initial screening and review, OWRC is able to resolve a complaint by an initial telephone call or other contact, OWRC will promptly notify the person making the complaint, the appropriate manager reporting a possible violation of this Policy, and when appropriate, the person against whom the complaint was made, about the results of this action.

5.803 Preliminary Inquiry

For complaints requiring further action, OWRC may conduct a preliminary inquiry, except as otherwise provided in Section 5.700 for complaints against a Judge, Clerk, Register, or the Recorder. The timing of the inquiry will depend on the severity of the conduct alleged in the complaint, the complexity of the issues raised, or other case specific factors, but OWRC will make its best efforts to complete its preliminary inquiry promptly, preferably within 5 (five) business days of receipt of the complaint. Some complaints may be of such a nature that they proceed immediately to an investigation. For other complaints, a preliminary inquiry may be appropriate.

A. Notification to the Reporting Party (Person Bringing the Complaint)

The Reporting Party, (the person bringing the complaint) will be notified of the name and contact information of the person conducting the inquiry and will be informed that the Policy prohibits retaliation for bringing a complaint. Any retaliation should be reported to OWRC immediately.

B. Content of Preliminary Inquiry

A preliminary inquiry may include contact with the person bringing the complaint for additional information, contact with the appropriate manager or department head, and review of relevant documents or other records necessary to evaluate the complaint to determine if the facts alleged in the complaint, together with any other information learned by the person conducting the inquiry, if true, do or do not constitute a violation of this Policy.

C. Outcome of Preliminary Inquiry

If, after a preliminary inquiry, OWRC determines that the facts alleged in the complaint or learned by the person conducting the inquiry do not constitute a violation of the Policy, OWRC will notify the Reporting Party and the appropriate manager, as well as inform them of whether or not the complaint was referred to another Trial Court department such as HR.

Where the preliminary inquiry does not dispose of the complaint, or where the complaint is initially determined to require a full investigation, OWRC will so notify, in writing, the involved parties, the appropriate manager(s), the Departmental Chief Justice and Deputy Court Administrator or their designees. When the complaint involves employees within a court department; the Commissioner of Probation when the complaint involves the Probation Department; the Jury Commissioner when the complaint involves the Office of the Jury Commissioner, or the relevant Director of the involved Department, when the complaint involves employees in the OCM. If a complaint is made against a Director in the OCM, or a Departmental Chief, or the Commissioner of Probation, the OWRC will notify the Chief Justice of the Trial Court and the Court Administrator. If a complaint is made against the Jury Commissioner, the OWRC will notify the Chief Justice of the Supreme Judicial Court.

5.804 Investigation

A. Notification to the Appropriate Manager of Person Bringing the Complaint

If the OWRC determines that a complaint, (other than a complaint against a Judge, Clerk, Register, or the Recorder) warrants an investigation, the Director of the OWRC, or designee, will notify the appropriate manager of the Reporting Party as well as the appropriate manager of the Responding Party (the person against whom the complaint has been made). The notification will include the name and contact information of the investigator assigned, and the general nature of the allegations to be investigated. The Director will discuss with the appropriate manager the background of the complaint, the scope of the investigation, and determine the order, place, and timing of interviews of other persons and may review relevant documents or other materials, including electronic records.

In some instances, the appropriate manager may be the departmental chief justice, clerk magistrate or First Assistant Clerk Magistrate, etc., who will be participating in the investigation process in their managerial capacity.

B. Notification to Reporting Party (Person Bringing the Complaint)

If the OWRC determines that a complaint, (other than a complaint against a Judge, Clerk, Register, or the Recorder) warrants an investigation, it will notify in writing the Reporting Party that an investigation will be conducted. The notification will include the name and contact information of the investigator assigned, the general nature of the allegations to be investigated, an explanation of expected confidentiality, and the prohibition against retaliation or undue influence toward the person bringing the complaint, any potential witness, or other persons participating in or cooperating with the investigation.

The OWRC will give written notice of the investigation to the involved parties, the appropriate manager(s), the Departmental Chief Justice and Deputy Court Administrator or their designees when the complaint involves employees within a court department; the Commissioner of Probation when the complaint involves the Probation Department; the Jury Commissioner when the complaint involves the Office of Jury Commissioner, or the relevant Director of the involved Department when the complaint involves employees in the OCM.

If a complaint is made against a Director in the OCM, a Departmental Chief or the Commissioner of Probation, the OWRC will notify the Chief Justice of the Trial Court and the Court Administrator. If a complaint is made against the Jury Commissioner, the OWRC will notify the Chief Justice of the Supreme Judicial Court. 

Complaints against Judges, Clerks, Registers, or the Recorder, will be handled under the provisions of Section 5.700.

C. Notice to Responding Party (Persons Against Whom Complaint is Brought)

At least 24 hours before conducting an interview with the Responding Party or Parties (the person or persons against whom a complaint is brought), the investigator will notify in writing that person(s) of the complaint, the prohibition against retaliation, and of the expectation of confidentiality and cooperation in the investigation. The investigator will also provide him/her/them with a copy of the complaint (which may have redacted sections if the complaint contains personal contact information or other highly personal information such as medical information), unless providing a copy of the complaint would create a substantial risk that evidence material to the investigation might be altered, lost or destroyed, or there is a substantial danger of retaliation or undue influence against the person bringing the complaint or any other person mentioned in the complaint.

The OWRC will give written notice of the investigation to the appropriate manager(s), the Departmental Chief Justice and Deputy Court Administrator or their designees when the complaint involves employees within a court department; the Commissioner of Probation when the complaint involves the Probation Department; the Jury Commissioner when the complaint involves the Office of the Jury Commissioner, or the relevant Director of the involved Department when the complaint involves employees in the OCM. If a complaint is made against a Director in the OCM, a Departmental Chief or the Commissioner of Probation, the OWRC will notify the Chief Justice of the Trial Court and the Court Administrator. If a complaint is made against the Jury Commissioner, the OWRC will notify the Chief Justice of the Supreme Judicial Court.

D. Interviews and Review of Documents and Other Materials

The investigator will normally conduct interviews with the person bringing the complaint, the persons against whom the complaint is brought, and any relevant witnesses, including those identified by the person bringing the complaint and the person against whom the complaint is brought. Upon request, the investigator will provide a reasonable opportunity to permit individuals who will be interviewed to obtain a representative. The investigator may conduct follow-up interviews as necessary. It is the responsibility of the person bringing the complaint to inform the investigator of a need for reasonable accommodations due to a disability.

E. Availability of a Personal Representative During Interviews

The Reporting Party, Responding Party, and any witnesses, may bring a personal representative, such as a union steward or business agent for union employees, attorney, or other representative from outside of the Trial Court to any interviews with the investigator. During interviews, the personal representative’s role is advisory, and the representative may not respond to the interviewer’s questions in place of the person being interviewed. The unavailability of a representative will not unreasonably delay the interview, subject to the discretion of the investigator.

F. Responsibilities of Persons Interviewed

All elected or appointed officials, managers, supervisors, and employees are required to cooperate during the investigation of a complaint and provide truthful information to the investigator. See Section 16.100 of this Personnel Manual. All persons being interviewed are strongly encouraged to inform the investigator if they require any reasonable accommodations due to a disability.

G. Documenting Investigations

The investigator will document all interviews and will retain the notes of the investigation, including all documents reviewed, in a file that will be kept confidential except as may be required by law, and which will be retained in the OWRC, separate from any personnel files, along with a copy of the original complaint and the confidential investigative report.

H. Confidentiality

The Trial Court respects the privacy concerns of the person who brings a complaint, the person or persons against whom a complaint is brought, any witnesses, and any persons participating in an investigation. Investigations will be conducted by the OWRC in as confidential a manner as practicable without interfering with the thoroughness or objectivity of the investigation, or the need to inform appropriate Trial Court officials of the existence of the complaint. To investigate a complaint thoroughly and responsibly, however, in most cases the identity of the person bringing the complaint, witnesses, and the nature of the complaint will have to be made known to some people outside of the OWRC, including supervisory or departmental administrative personnel.

Persons participating in the investigation of a complaint, including witnesses, are strongly encouraged to avoid discussing any aspect of the investigation with those with no need to know. Unnecessary discussion, rumors, and speculation may interfere with the goal of conducting a fair and thorough investigation and may be grounds for disciplinary action. This does not prevent discussion with a union or other representative, including counsel, and is not meant to prohibit or interfere with the ability of the person bringing the complaint or the person or persons against whom the complaint is brought to secure witnesses or other information necessary to a fair consideration of the complaint.

5.805 Confidential Investigative Report

At the conclusion of the investigation, the investigator will draft a confidential report including a full evaluation and analysis of the evidence and will provide recommended findings of fact and a recommended conclusion as to whether it is more likely than not that the alleged conduct occurred, and if so, whether the conduct violated this Policy, or if not, whether the conduct violated Section 16.100. The investigator will present this report to the Director of the OWRC.
 

5.806 Review of Investigator’s Recommended Conclusions

The Director of the OWRC will provide a confidential draft of the full confidential investigative report to the appropriate manager and discuss the findings prior to the Director’s determination whether to adopt the investigator’s recommended findings and conclusions. The appropriate manager may request further investigation or provide additional information for the Director’s determination. At the conclusion of this communication, and any follow-up investigation that may have been requested or required, the Director will issue a final confidential report to the appropriate manager.

The manager will maintain control of the confidential report, will not make a copy of it in any manner, and will return it or otherwise dispose of it at the direction of the Director of the OWRC.

The Director will notify, in writing, the Reporting Party of a summary of the facts and findings, and of the conclusion of whether it is more likely than not that the Policy was violated, and where appropriate, that remedial action was taken to stop the behavior. This notification will be copied to the appropriate manager(s), the Departmental Chief Justice and Deputy Court Administrator or their designees when the complaint involves employees within a court department; the Commissioner of Probation when the complaint involves the Probation Department; the Jury Commissioner when the complaint involves the Office of Jury Commissioner; or the relevant Director of the involved Department when the complaint involves employees in the OCM. If a complaint is made against a Director in the OCM, the Jury Commissioner, or the Commissioner of Probation, the OWRC will notify the Chief Justice of the Trial Court and the Court Administrator.

Simultaneously, the Director will notify the Responding Party(s) against whom the complaint was brought that the investigation has concluded and will provide that party(s) with a summary of the facts and findings, as well as inform the party(s) of the conclusion of whether it is more likely than not that a violation of the Policy has occurred, and that any corrective action will be determined by the appropriate manager. Copies of this written notification will be sent to the appropriate manager(s), the Departmental Chief Justice and Deputy Court Administrator or their designees when the complaint involves employees within a court department; the Commissioner of Probation when the complaint involves the Probation Department; the Jury Commissioner when the complaint involves the Office of the Jury Commissioner, or the relevant Director of the involved Department when the complaint involves employees in the OCM. If a complaint is made against a Director in OCM, the Jury Commissioner, or the Commissioner of Probation, the OWRC will notify the Chief Justice of the Trial Court and the Court Administrator.

The parties to the complaint will be asked to report any possible retaliation or further incidents immediately.

5.807 Grievance and Appeals for Employees and Managers

Employees who are members of a bargaining unit may grieve the disciplinary action of the appropriate manager pursuant to the terms of their collective bargaining agreement. Managerial employees may appeal disciplinary action pursuant to Section 16.500 of this Policy Manual.

Offices, Persons, and Helpline Numbers

The offices, persons, or helpline number to which you may make a complaint include the following:

Office of Workplace Rights & Compliance (OWRC) 

Helpline: [phone] 
Email: [e-mail] 

Margaret Peterson Pinkham, Director 
Two Center Plaza, Suite 540, Boston, MA 02108  
Direct: [phone] 
Email: [e-mail]

Legal Department

Gwen Werner, Deputy General Counsel
One Center Plaza, Suite 540, Boston, MA 02108  
Direct: [phone]
Email: [e-mail]

Human Resources Department

Two Center Plaza, Suite 540, Boston, MA 02108  
Direct: [phone]
Email: [e-mail]

Executive Office of the Trial Court

John Adams Courthouse
One Pemberton Square, Suite 1M, Boston, MA 02108  
Direct: [phone]
Chief Justice of the Trial Court Heidi E. Brieger  
Email: [e-mail]
Tom Ambrosino, Court Administrator  
Email: [e-mail]

Departmental Administrative Offices

Boston Municipal Court Department

Edward W. Brooke Courthouse 
24 New Chardon Street, 6th Floor, Boston, MA 02114  
Direct: [phone]

Chief Justice Tracey-Lee Lyons  
Email: [e-mail] 
Kate Clayman, Deputy Court Administrator  
Email: [e-mail]

District Court Department

Edward W. Brooke Courthouse 
24 New Chardon Street, 1st Floor, Boston, MA 02114

Chief Justice Stacey J. Fortes 
Email: [e-mail] 
Philip J. McCue, Deputy Court Administrator  
Email: [e-mail]  
Joseph Jackson, Deputy Court Administrator  
Email: [e-mail]

Housing Court Department

Edward W. Brooke Courthouse 
24 New Chardon Street, 6th Floor, Boston, MA 02114  
Direct: [phone]

Chief Justice Diana Horan 
Email: [e-mail]  
Jorge Ghazal, Deputy Court Administrator  
Email: [e-mail]

Juvenile Court Department

Three Center Plaza, 7th Floor, Boston, MA 02108  
Direct: [phone]

Chief Justice Dana Gershengorn 
Email: [e-mail]  
Thomas Capasso, Deputy Court Administrator  
Email: [e-mail]

Land Court Department

Suffolk County Courthouse  
Three Pemberton Square, 11th Floor, Boston, MA 02108  
Direct: [phone]

Chief Justice Gordon Piper 
Email: [e-mail]  
Jill Ziter, Deputy Court Administrator  
Email: [e-mail]

Probate and Family Court Department

Edward W. Brook Courthouse 
24 Chardon St. Boston, MA 02114 
Direct: [phone]

Chief Justice John D. Casey 
Email: [e-mail] 
Domenic Dicenso, Deputy Court Administrator  
Email: [e-mail]

Superior Court Department

Suffolk County Courthouse 
Three Pemberton Square, 13th Floor, Boston, MA 02108  
Direct: [phone]

Chief Justice Michael D. Ricciuti 
Email: [e-mail]  
Elaina Quinn, Deputy Court Administrator  
Email: [e-mail] 

Additional Resources

Commission on Judicial Conduct

(If the person’s complaint is about a judge) 

Attn: Executive Director
11 Beacon Street, Suite 525, Boston, MA 02108
Direct: [phone]
Fax: [phone]

The Commission on Judicial Conduct does not accept complaints by telephone. If you have a disability that prevents you from submitting a written complaint, please contact the CJC’s office to discuss how it can best accommodate your needs: [phone].

Aggrieved Employees who are members of a bargaining unit may also file a grievance under the applicable collective bargaining agreement.

An Employee, Service Provider, or Court User who believes that he/she/they have been discriminated against, harassed, or retaliated against in violation of the law may file a complaint within 300 days with the following agencies:

United States Equal Employment Opportunity Commission (EEOC)

JFK Building, 475 Government Center, Boston, MA 02203  
[phone]

Massachusetts Commission Against Discrimination (MCAD)

One Ashburton Place, Boston, MA 02108  
[phone]

436 Dwight Street, Room 220, Springfield, MA 01103 
[phone]

484 Main Street, Room 320, Worcester, MA 01608 
[phone]

800 Purchase Street, Room 501, New Bedford, MA 02740 
[phone]

Last updated:	January 6, 2025