Faculty and EPA Professionals Grievance Procedure

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

2. 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

3. Grievance Committee • Role of Committee Chair – to preside, not decide • Role of Committee • Fair and impartial hearing panel • makes fact findings • makes recommendations

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. Improperly • Violation must be material Amaterial procedural irregularity means a departure from prescribed procedures that casts substantial doubt on the validity of the decision.

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

12. 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

13. 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.”

14. 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

15. 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

16. 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

17. 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.

18. 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.

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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.

29. 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.

30. 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

31. 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