HRM-043: Addressing Grievances for Administrative and Professional Non-Tenure-Track Faculty

Date: 05/05/2015 Status: Final
Policy Type: University
Oversight Executive: Executive Vice President and Provost
Applies To: Academic Division.
Reason for Policy:

Provides administrative and professional non-tenure-track faculty members and the University with a fair and efficient means of resolving certain employee complaints.

Definition of Terms in Statement:
  • Day:

    A calendar day.

  • Employee (3):

    The person who initiates a complaint under this policy, and who was an employee covered by this policy at the time of the event complained of.

  • To Provide:

    (Concerning transmitting a document) to place in the mail or to deliver.

Policy Statement:
  1. Introduction:
    This policy is intended to provide certain employees and the University with a fair and efficient means of resolving certain complaints by the employees.

    1. Persons Covered:
      The employees covered are the members of the Administrative and Professional Non-Tenure-Track Faculty as defined by the University's policy HRM-003, Employment of Non-Tenure-Track Faculty.

    2. Definitions:
      The terms defined under "Definitions" above are hereby made a part of this policy statement.

    3. Phases and Covered Complaints:
      This procedure defined by this policy has three general phases. The first, referred to as the Initial Phase, consists of two levels of management review. Complaints qualifying for the Initial Phase may or may not qualify for any further review. Those which do qualify for further review will be heard either through the Further Investigation Phase or the Hearing Phase, but not both.

      1. Initial Phase:
        The following complaints qualify for the Initial Phase:

        1. Complaint of Disciplinary Action - a complaint that the employee has been subjected to disciplinary action in his or her employment;
        2. Complaint of Employment Contract Breach - a complaint that the University has breached the employee's employment contract;
        3. Complaint of Reprisal - a complaint that the employee has been subjected to acts of reprisal in his or her employment as a result of using this policy or being a witness for another employee using this policy.

Complaints of discrimination and harassment, including sexual or gender-based harassment or interpersonal violence, are handled under different policies at the University and do not qualify for complaint through the process defined in this policy.

Complaints of discrimination or harassment, that is any complaint that the employee has been subjected to discrimination on the basis of age, color, disability, gender identity, marital status, national or ethnic origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, veteran status, or family medical or genetic information in the course of employment by the University, are handled under policy HRM-009, Preventing and Addressing Discrimination and Harassment (PADH) and the related complaint procedures maintained by the Office for Equal Opportunity and Civil RIghts (EOCR).

Complaints involving sexual assault, sexual exploitation, intimate partner violence, stalking, or sexual or gender-based harassment are handled in accordance with policy HRM-041, Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence and its appendices.

  1. Further Investigation Phase:
    The complaints qualifying for the Further Investigation Phase are those which the executive vice president and provost (Provost) decides, as described in Section III.B below, should be investigated further.

  1. Hearing Phase:
    The complaints qualifying for the Hearing Phase are those which the Provost decides, as described in Section III.B.4 below, should be reviewed through a hearing process.

  1. Extension of Time Periods:
    1. Initial Phase and Qualification Proceedings:
      The time periods applicable in the Initial Phase and the qualification proceedings under Section III may be extended by written agreement of the employee and the relevant University official involved in a particular step, or by the Provost upon a written determination that just cause exists for the extension.

    2. Further Investigation Phase:
      The time periods applicable in the Further Investigation Phase may be extended by written agreement of the employee, the appropriate management representative and the investigator, or by the Provost upon a written determination that just cause exists for the extension.

    3. Hearing Phase:
      The time periods applicable in the Hearing Phase may be extended by written agreement of the parties and the panel, or by the Provost upon a written determination that just cause exists for the extension.

  2. Noncompliance Issues:
    Any issues relating to noncompliance with this policy will be promptly presented to the Provost for resolution.

  3. Delegation by the Provost:
    If the Provost deems it necessary or appropriate in a particular case, he or she may delegate to a University employee reporting to the Provost some or all of the Provost's duties under this policy.

  4. Alternates:
    In the case of a complaint against the Provost, the President may designate, at the employee's request, an alternate to perform the role of one or more persons under this policy.

  5. Attorneys:
    1. Other Than for the Panel:
      No attorneys, representatives, or advisers of the employee, management representatives, or investigator will be present during any of the meetings or hearing under this policy. An exception is that if the employee has pending or threatened criminal charges against him or her arising from the events to be considered by a hearing panel, the panel may at the employee's request allow the employee to have an attorney present for the purpose of advising the employee without participating in or disrupting the hearing.

    2. For the Panel:
      A hearing panel may have present at any or all times, including deliberations, counsel with whom the panel may confer. The panel's counsel will not question witnesses or otherwise participate in the hearing, his or her only role being to advise the panel privately. If the Office of University Counsel has advised the University's management concerning the grievance or the matter on which it is based, the Office will not serve as counsel to the hearing panel.

  1. Initial Phase:
    1. First Step Review:
      1. Employees are encouraged to discuss their grievances in person with those able to resolve them before initiating a grievance under this policy. This policy is not intended as a substitute for such discussions, but rather as an additional means of resolving certain disputes.

      2. An employee who wishes to initiate a grievance under this policy must provide to the employee's immediate supervisor within thirty (30) days after the event which is the basis for the complaint a written statement describing the complaint and the relief requested. The employee and the supervisor will attempt to resolve the complaint informally and in person during the following fourteen (14) days.

      3. Within fourteen (14) days after receipt of the employee's written statement, the employee's immediate supervisor will provide to the employee a written response to the statement. The response will state the supervisor's decision and the supporting reasons.

    2. Second Step Review:
      1. Advance to Second Step:
        If the immediate supervisor's response does not resolve the complaint to the employee's satisfaction, the employee may advance the complaint by providing to the second step reviewer within seven (7) days after receipt of the immediate supervisor's response a written statement describing the complaint and the relief requested.

      2. Second Step Reviewer:
        The second step reviewer will be the head of the employee's department or, if the head was the first step reviewer, the appropriate vice president, executive vice president, or other person reporting to the Provost or, if such person was the first step reviewer, the Provost.

      3. Review:
        The second step reviewer will schedule a meeting with the employee to be held within seven (7) days after receipt of the employee's statement. The second step reviewer will also gather such additional information concerning the complaint as he or she deems appropriate.

      4. Response:
        Within seven (7) days after meeting with the employee, the second step reviewer will provide to the employee a written response to the complaint, with a copy to the Provost. The response will state the reviewer's decision and the supporting reasons.

  2. Qualification for Hearing or Further Investigation Phase:
    1. Request for Hearing or Further Investigation:
      If the second step reviewer's response does not resolve the complaint to the employee's satisfaction, the employee may request the Provost to qualify the complaint either for further investigation or a hearing. Any such request must be made by providing to the Provost (with copies to the first and second step reviewers), within thirty (30) days after the employee's receipt of the second step reviewer's response, the employee's statement of the complaint, the relief requested, the facts the employee claims support the complaint, and an explanation of why the employee believes the complaint should be reviewed by further investigation or a hearing.

    2. Qualification Decision:
      1. General:
        Within seven (7) days after receipt of the employee's statement, the Provost will provide to the employee a written decision (with copies to the first and second step reviewers) on whether the complaint qualifies for further investigation or a hearing. If the complaint does not qualify for either further investigation or a hearing, processing of the complaint under this policy is terminated. The decision will include a brief statement of the Provost’s reasoning.

      2. Basis for Further Investigation Decision:
        A further investigation will be ordered if the Provost determines the facts appear to warrant such investigation. The facts to be considered may include, for example, the seriousness of the alleged conduct at issue in the complaint, the thoroughness of the first and second step reviews, and the strength of the relevant evidence.

      3. Designation of Investigator:
        If further investigation is ordered, the Provost will include in the decision a designation of the investigator, who will not be a University employee under the authority of the second step reviewer, and the Provost will provide to the investigator a copy of the decision.

      4. Basis for Hearing Decision:
        A hearing will be ordered if the Provost determines after consultation with counsel that a procedural due process hearing is legally required or would be in the University's best interests.

      5. Burden of Proof:
        If a hearing is ordered, the Provost will provide a copy of the decision to the chair of the Faculty Senate and will include in the decision a determination of which party will have the burden of proof on which issues. In the case of disciplinary action against the employee, management will have the burden of proving by a preponderance of the evidence that its action was a reasonable exercise of discretion, regardless of whether the hearing panel would have taken the identical action if it had been responsible for managing the employee. Example of an issue on which the employee would have the burden of proof is a breach of employment contract.

      6. Appeal of Decision by Delegate:
        If the qualification decision is made by the Provost’s delegate, the employee or the appropriate management representative may within seven (7) days after receipt of the decision provide to the Provost a written request for review and modification of the decision. The Provost may in his or her discretion review the matter and take such action as deemed appropriate. Within seven (7) days after receipt of the request for review, the Provost will provide a written response to the employee and the first and second step reviewers.

  3. Further Investigation Phase:
    1. Investigation and Report:
      1. Investigation:
        The investigator will thoroughly gather the relevant facts by whatever means he or she determines to be most effective and efficient, provided the investigator will conduct at least one meeting at which the employee and the appropriate management representative will be present and afforded an opportunity to respond to each other's presentations concerning the complaint.

      2. Report:
        Within fourteen (14) days after the investigator's receipt of the Provost’s decision qualifying the complaint for further investigation, the investigator will provide to University Counsel (with a copy to the Provost) a report in confidence for the purpose of advising the Provost. The investigator will divide the report into two sections, the first being the investigator's factual findings, and the second, the investigator's recommendations to the Provost (with supporting reasons) on how the University should respond to the complaint.

    2. Review of the Report:
      1. Factual Findings:
        The Provost will accept as true the investigator's factual findings unless the Provost has reasonable grounds for reopening the investigation. In the event of such grounds, the Provost may request the investigator to conduct promptly an additional investigation and in either case the Provost may conduct an additional investigation and in either case the Provost will prepare and provide to University Counsel a revised confidential report of factual findings within fourteen (14) days after receipt of a copy of the investigator's initial report.

      2. Decision:
        Within fourteen (14) days after receipt of a copy of the investigator's initial report or within fourteen (14) days after completion of any revised report, the Provost will provide to the employee a written statement of whether the University will provide the employee with any relief. If the relief to be provided is less than that requested by the employee, the statement will include the reasons for not providing the additional relief.

      3. Request for Reconsideration:
        Within fourteen (14) days after receipt of the Provost’s statement, the employee may provide to the Provost a written statement requesting the Provost to reconsider the decision and describing the aspects in which the employee believes the Provost’s statement is incorrect. The Provost will provide to the employee a response within fourteen (14) days after receipt of the employee's request. That response will be the final step under this policy.

  4. Hearing Phase:
    1. Selection of Hearing Panel:
      1. Employee Designation of Panel Member:
        Within seven (7) days following receipt of the Provost’s decision qualifying the complaint for a hearing, the employee will provide to the chair of the Faculty Senate (the Chair) (with a copy to the first step reviewer) the employee's written designation of a faculty member who has agreed to serve on the hearing panel, which will consist of five members.

      2. Designation of Other Panel Members:
        Within fourteen (14) days after receipt of the employee's designation, the Chair will provide to the employee and the first step reviewer the names of four additional panel members who have agreed to serve and whom the Chair has selected by any means, provided that at least three of the five panel members will be members of the Administrative and Professional Non-Tenure-Track Faculty. The Chair will designate one of the four additional members as chair of the hearing panel (the Panel Chair). In selecting panel members, the Chair will not discuss the merits of the complaint with prospective panel members but will disclose the names of the employee and the first and second step reviewers and the nature of the complaint to aid prospective members in their decisions as to whether they should decline to serve due to potential bias or conflict.

      3. Strikes and Challenges:
        Within fourteen (14) days after receipt of the Chair’s designation of the panel, the employee and the manager (who will be the first step reviewer or other manager responsible for presenting management’s case to the panel) will provide the Chair and each other in writing with any exercise of their right to remove without cause one of the four members selected by the Chair. The parties may also challenge any of such four members for cause by stating the claimed cause. In the absence of any removals without cause or challenges, the Chair will provide to the parties and the panel written notice that the panel has been selected.

      4. Replacement Members:
        Within fourteen (14) days after receipt of any removals without cause or challenges for cause, the Chair will provide to the parties a decision on any challenges and a designation of any replacement members. Replacement members may be challenged for cause and replaced in accordance with the same procedure for challenging and replacing members initially selected, and the Chair will provide to the parties and the panel written notice that the panel has been selected.

    2. Pre-Hearing Proceedings:
      1. Scheduling the Hearing:
        Within fourteen (14) days after receipt by the Panel Chair of notice by the Chair that the panel has been selected, the Panel Chair will, after consultation with the other panel members and the parties, provide to the parties and the other panel members written notice of the time and place of the hearing, which will be held at least fifteen (15) but not more than thirty (30) days after selection of the full panel unless the panel and parties agree otherwise.

      2. Description of Case:
        Within fourteen (14) days after receipt by the parties of notice that the panel has been selected, the party with the burden of proof will provide the other party and the panel with a description of the party's case against the other, including a statement of the charges, a summary description of the evidence supporting the charges, and a description of any relief requested.

      3. Response:
        Within fourteen (14) days after receipt of such description of the case against him or her, the party not having the burden of proof will provide the other party with a written response stating his or her position on the charges, and the evidence supporting that position.

      4. Witnesses and Document Lists:
        Each party will provide to the other at least fourteen (14) days before the hearing a list of witnesses expected to be called and any documents to be introduced, with such information to be updated with any additions occurring within five days of the hearing.

      5. Pre-Hearing Resolution of Issues:
        Upon request by either party or on its own initiative, the panel may, using such procedure as it deems fair, resolve before the hearing any issues in the interest of fair and expeditious handling of the hearing. All decisions by the panel will be by majority vote of the full panel.

    3. Hearing Proceedings:
      The hearing will be conducted in accordance with the following rules:
      1. Persons Present:
        The parties will be entitled to be present during the entire hearing, excluding deliberations. Witnesses other than the parties may be present only while giving their testimony. Other than the person recording the hearing, no other person will be present except as the panel and the parties may agree. All panel members will be present during the entire hearing unless the parties and all the panel members who are present agree otherwise.

      2. Recording:
        The Panel Chair will arrange for the hearing to be recorded by a professional court reporter approved by the Office of University Counsel. The panel may arrange for preparation of any transcript of the recording which it wishes for its use. The expense of the recording and any such transcript will be paid by the Office of the Provost. Either party wishing a transcript may arrange with the person who recorded the hearing to obtain a transcript.

      3. Procedural and Evidentiary Questions:
        Except as provided in this policy, the panel will not be bound by the rules of procedure or evidence, applicable to judicial proceedings, and the panel may take into account any evidence to the extent it deems appropriate. The panel will decide by majority vote of the panel members present all procedural and evidentiary questions raised during the hearing.

      4. Order of Proceeding:
        Except as the panel may provide otherwise, the order of the hearing will be as follows. The party with the burden of proof (see Section III.B. above) may make an opening statement, followed by the other party's opening statement. The party with the burden of proof will then present evidence, followed by the other party's presentation of evidence, followed by rebuttal evidence by the party with the burden of proof. The panel may allow such additional evidence as it deems appropriate. The panel may request the parties to produce evidence on particular issues, and the panel itself may request witnesses to testify or may present other evidence in the interest of a thorough gathering of the relevant facts. Upon completion of the evidence, the party with the burden of proof may make a closing statement, followed by the other party's closing statement, and the party with the burden of proof may then make a rebuttal statement.

      5. Questions of Witnesses:
        The parties will have the right to cross-examine witnesses presented and the panel may ask witnesses questions at any time.

      6. Additional Sessions:
        The panel may adjourn the hearing from time to time and reconvene it for such additional sessions as the panel may determine, provided that the hearing will be completed within fourteen (14) days of its commencement unless the panel and parties agree otherwise.

      7. Written Statements:
        At the panel's request, the parties will submit written statements on any matters designated by the panel, including proposed findings of fact and recommendations.

    4. Panel's Report:
      Within thirty (30) days after conclusion of the hearing or, where applicable, the panel's receipt of the parties written statements or any transcript requested by the panel, the panel will provide to the Provost (with copies to the parties) a written report. The report will be divided into two sections, the first being the panel's factual findings, and the second, the panel's recommendations to the Provost on how the University should respond to the complaint. The contents of the panel's report will be determined by majority vote, provided that dissenting or concurring members will be entitled to submit separate written statements which will accompany the report.

    5. Provost's Review of the Report:
      1. Factual Findings:
        The Provost will accept as true the panel's factual findings unless the Provost has reasonable grounds for reopening the hearing. In the event of such grounds, the Provost may request the panel to conduct promptly additional hearing proceedings, or the Provost may conduct such proceedings, and a supplemental report on the factual findings will be provided to the parties within ten (10) days after completion of any such proceedings.

      2. Review:
        Within ten (10) days after their receipt of the panel's report of any supplemental report, the parties may provide to the Provost (with a copy to the other party) their written arguments, as opposed to additional evidence, in support of their respective positions. In addition, the parties may request an opportunity to present oral arguments and the Provost may or may not allow such arguments. The Provost may also, in the presence of the parties, ask the panel members questions relating to their report. The Provost may obtain and review any or all of the hearing transcript and exhibits. The Provost’s review of the panel's report will be based only on the foregoing, except for consultation with legal counsel approved by the Office of University Counsel.

      3. Decision:
        Within thirty (30) days after receipt of the panel's report, any supplemental report or any transcript requested by the Provost, or completion of oral arguments, whichever last occurs, the Provost will provide to the parties (with a copy to the panel) a written decision on the requested relief. Within ten (10) days after receipt of the Provost’s decision, either party may provide to the Provost (with a copy to the panel) a written request for reconsideration which will describe the aspects in which the party believes the Provost’s decision is incorrect. The Provost may conduct such additional proceeding consistent with Section V.E.2 above as the Provost deems appropriate. Within ten (10) days after receipt of the request for reconsideration or conclusion of any such additional proceedings, the Provost will provide to the parties (with a copy to the panel) a response to the request. That response will be the final step under this policy.

Related Information:

HRM-003, Employment of Non-Tenure-Track Faculty

Major Category: Human Resource Management
Next Scheduled Review: 05/05/2018
Approved by, Date: Executive Vice President and Provost, 05/05/2015
Supersedes (previous policy):
Grievance Policy for Administrative and General Faculty