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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

Conducting an Effective Grievance Hearing

Presented by: The Office of Legal Affairs


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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

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Grievance Committee

  • Role of Committee Chair – to preside, not decide

  • Role of Committee

    • Fair and impartial hearing panel

    • makes fact findings

    • makes recommendations

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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

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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

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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

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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

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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

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  • Improperly means in violation of a specific university rule, regulation, policy or practice pertaining to the employment relationship between the grievant and the university

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  • Violation must be material

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

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  • Unfairly means in an arbitrary or capricious manner or in an unlawfully discriminatory manner.

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  • 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

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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.”

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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Conducting the Hearing hearings

  • 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

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Deliberating and Reaching a Decision hearings

  • 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

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The Written Decision hearings

  • 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

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Remedy hearings

  • 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.

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Transmittal of Decision and Record hearings

  • 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.

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Miscellaneous Issues and Unusual Situations hearings

  • 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

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Miscellaneous Issues and Unusual Situations hearings

  • 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