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Faculty and EPA Professionals Grievance Procedure . Conducting an Effective Grievance Hearing Presented by: The Office of Legal Affairs 2008. Participants in the Grievance. Grievant

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faculty and epa professionals grievance procedure

Faculty and EPA Professionals Grievance Procedure

Conducting an Effective Grievance Hearing

Presented by: The Office of Legal Affairs

2008

participants in the grievance
Participants in the Grievance
  • Grievant
    • Must file a grievance that comes within the scope of the grievance procedure after fulfilling jurisdictional pre-requisites
  • Respondent(s)
    • Must be an administrator who has made a decision that adversely affects the grievant
    • Not a colleague
    • Not someone who acts in an advisory capacity
  • Hearing Committee
  • Committee Chair
  • Chancellor – the decision maker
grievance committee
Grievance Committee
  • Role of Committee Chair – to preside, not decide
  • Role of Committee
    • Fair and impartial hearing panel
    • makes fact findings
    • makes recommendations
fair impartial hearing
Fair/Impartial Hearing
  • Due Process – opportunity to be heard by a fair and impartial decision maker
  • Conflicts of Interest
  • Communicating with the parties; no “ex parte” communications
initial meeting
Initial Meeting
  • Orientation
    • Review of grievance procedures
    • Resolving any Conflicts of Interest that any member of committee may have
  • Committee decision on jurisdiction (based on grievance petition)
    • does grievance state a grievable matter, i.e. is it within the scope of what may be grieved
    • was grievance timely filed
    • were filing prerequisites followed
matters that are not grievable
Matters that are not grievable
  • Disagreements with general application of policies on grounds that policy is unfair or inadvisable
  • Complaints of harassment
  • Appeals from terminations or discharge of faculty with academic tenure
  • Complaints, grievances or appeals that are subject to another university procedure or within the jurisdiction of another university committee
does grievance petition state a grievable matter
Does Grievance Petition state a grievable matter?
  • Non reappointment grievances
    • Tenure Track Faculty
      • Limited to grievance alleging decision based on exercise of First Amendment rights of free speech; discrimination; personal malice; material procedural violations
    • EPA Professionals
      • Limited to inadequate notice; discrimination; violation of First Amendment rights of free speech
other grievances is grievance petition sufficient
Other Grievances - Is Grievance Petition Sufficient
  • Must identify with specificity an administrator’s decision that adversely affects the grievant’s academic or professional capacity
  • Must allege that the decision was reached improperly or unfairly
improperly
Improperly
  • Improperly means in violation of a specific university rule, regulation, policy or practice pertaining to the employment relationship between the grievant and the university
improperly10
Improperly
  • Violation must be material

Amaterial procedural irregularity means a departure from prescribed procedures that casts substantial doubt on the validity of the decision.

unfairly
Unfairly
  • Unfairly means in an arbitrary or capricious manner or in an unlawfully discriminatory manner.
unfairly12
Unfairly
  • Arbitrary or capricious means without rational basis
  • Unlawfully discriminatory manner means in violation of law or a university non-discrimination policy
    • Discrimination based on race, national origin, gender, religion, age, disability
    • Discrimination based on sexual orientation
    • Discrimination based on protected free speech
personal malice
Personal Malice
  • UNC Code provides that a decision not to reappoint a faculty member may not be based upon “personal malice”
  • “Personal malice” means “dislike, animosity, ill-will or hatred based on personal characteristics, traits or circumstances of an individual that are not relevant to valid University decision making.”
personal malice cont d
Personal Malice (cont’d)
  • Examples of personal malice include negative actions with respect to
    • an employee’s anatomical features
    • an employee’s marital status
    • an employee’s social acquaintances
    • an employee’s height or weight
    • An employee’s sexual orientation
importance of having a proper grievance petition
Importance of having a proper grievance petition
  • Provides notice and due process to the administrator who must respond to the grievance and prepare for the grievance hearing
  • Gives all parties and committee members notice of the precise issues that will come before the committee
  • Expedites the grievance hearing process
importance of having a proper grievance petition16
Importance of having a proper grievance petition
  • The grievance statement facilitates efficient administration of justice at NCSU:
    • In many cases, the relief the grievant is asking for is not a grievable matter, such as a disagreement with general university policy
    • It is inefficient to subject respondents (or the University or State of North Carolina) to defend themselves in a grievance that is not properly grievable
filing deadlines
Filing Deadlines
  • Grievance petition must be filed within sixty calendar days of the decision cited in the grievance.
  • This filing deadline can be waived if in the judgment of the chair of the faculty, there were significant extenuating circumstances preventing the filing.
  • Time deadlines are important because delays may result in faulty memories, unavailable witnesses and documents.
  • Also closure is an important value.
    • It enables the grievant and administrative units to resolve matters expeditiously and move forward.
extenuating circumstances
Extenuating Circumstances
  • Extenuating Circumstances - Examples
    • Faculty member is unable to file due to unforeseen circumstances (hospital stay, etc.)
    • Faculty member is unaware of the decision for a delayed period and through due diligence would not have been aware earlier
  • Mediation extends the time for filing of the grievance
    • But note there are time deadlines for filing the mediation and for pursuing the grievance if mediation fails to resolve the matter.
filing pre requisites
Filing Pre-requisites
  • Prior Attempt at informal resolution
    • Must meet with Department Head and Dean or Unit Head to see if informal resolution is possible
    • May obviate need for grievance committee
  • Review Personnel File
    • May obviate grievance if it resolves misunderstanding
    • Employees are entitled to access their employment files
committee options
Committee Options
  • Dismiss grievance
  • Proceed to pre-hearing to explore with grievant whether there is a grievable matter
    • Determine if grievant states a grievable matter and if so, reach consensus on amended grievance statement; dismiss if grievant cannot state a grievable matter
  • If it is determined that the grievant has stated a grievable matter then respondent(s) must be provided with the opportunity to respond in writing to the amended grievance
pre hearing conference
Pre-hearing Conference
  • Review of the Grievance
    • what are the issues, relevant policies/practices
    • Committee may not receive evidence
    • Parties may not argue the merits of their case
  • Identifying the parties to the Grievance
  • Review of Requested Redress
  • Review of Hearing Procedures
  • Third Party Observers
jurisdictional appeal
Jurisdictional Appeal
  • Either party may appeal decision on jurisdiction
  • Grievance hearing is held in abeyance pending the Chancellor’s decision
  • Chancellor requests response from party and the committee
  • Chancellor requests committee decision and the jurisdictional record
evidence for the hearing
Evidence for the Hearing
  • Exchange of list of witnesses and documents before the hearing
  • Identification of Documents by Exhibit #
  • Creating the Record
    • grievance statement and response to grievance
    • correspondence
    • testimony of the pre-hearing and hearing
    • the decision
responsibility of the grievance participants to attend hearings
Responsibility of the Grievance Participants to attend hearings
  • What happens if either party fails or refuses to participate in the pre-hearing or grievance hearing
  • What happens if a committee member fails or refuses to participate at any step in the grievance process
conducting the hearing
Conducting the Hearing
  • Opening Remarks by the Chair
    • items to be addressed
  • Opening Statements by the Parties
    • order and contents
  • Presentation of Evidence by the Parties
    • relevant and material documents and testimony
    • procedure for presentation
    • Dismissal after grievant’s case if grievant has not presented sufficient credible evidence to sustain the grievance
  • Closing Statements
    • order and contents
deliberating and reaching a decision
Deliberating and Reaching a Decision
  • Role of the Chair - facilitator
  • Discussion of facts
  • Discussion of facts as they relate to each key issue
  • Deciding the ultimate issue
    • evaluating conflicting evidence
  • Burden of Proof – on the grievant
the written decision
The Written Decision
  • Introduction - describing the process followed by the Committee
  • Brief Description of the grievance and the parties to the grievance
  • Findings of Fact and Conclusions (basis for conclusions, how facts support conclusions, resolution of conflicting evidence)
  • Recommendations
remedy
Remedy
  • A grievance committee has no power to reverse an administrative decision, but can only recommend a reassessment of that decision if it finds that the decision was reached improperly.
transmittal of decision and record
Transmittal of Decision and Record
  • Non-reappointment grievances – directly to the chancellor
  • All other grievances – if committee recommends adjustment in favor of grievant, report is sent to the parties who may agree to accept the adjustment or otherwise mutually resolve the dispute. If no adjustment/resolution is made within 20 days, report and record is transmitted to the chancellor.
miscellaneous issues and unusual situations
Miscellaneous Issues and Unusual Situations
  • Confidentiality of Grievance Proceedings
  • Burden of Proof/Burden of Production
  • Hearsay evidence
  • Affidavits from absent witnesses
  • Failure of a party to exchange documents or witness lists
  • Standing
  • Admissible evidence
miscellaneous issues and unusual situations31
Miscellaneous Issues and Unusual Situations
  • Personnel file access – not committee’s right
  • Role of Legal Counsel – NCSU, others
  • Differences in grounds for grievance depending upon the grievant’s status
  • Requests to amend the grievance or separate grievances
  • Applicable policies and procedures
  • Remedies
  • Withdrawal of grievance – effect
  • Faculty leaves the university – effect
  • Separate report to the Chancellor