Faculty Grievance Procedure

03-17-13

I. POLICY STATEMENT

This Policy is intended to provide a fair, internal process for resolving employment-related disputes that arise between faculty or academic staff members and administrators. The formal procedures described in this Policy are intended to be used only when matters cannot be resolved informally. A faculty or academic staff member who feels aggrieved should first seek an informal resolution at the unit, department, or college level before filing a formal grievance under this Policy. The procedures contained in this Policy are not intended to be used to challenge the desirability of unit or University policies.

II. DEFINITIONS

  1. Grievance: A written complaint filed by a faculty or academic staff member against an administrator of the University alleging a violation of University, college, department, school, or unit policy or established practice.
  2. Faculty member: A person with a paid University appointment at the rank of professor, associate professor, assistant professor, or instructor, including those with fixed-term and visiting status.
  3. Academic Staff: A person with a paid University appointment at the rank of academic specialist, lecturer, assistant instructor, research associate, or librarian, including those in a continuing appointment system and those with fixed-term and visiting status.
  4. Administrator: A person appointed as the head of an administrative unit, school director, department chair, dean, or separately reporting director.1 The President, the General Counsel and members of the General Counsel’s staff, and the Faculty Grievance Official (“FGO”) are not subject to grievance under this Policy.
  5. Policy: A written statement of principles and procedures that govern the actions of faculty, academic staff, and administrators, including written rules, bylaws, procedures, or standards.
  6. Practice: Actions taken by the administrator within an administrative or academic unit based on customs or standards in that unit that are usually unwritten but of longstanding duration, and for whose existence the grievant can offer evidence.
  7. Violation: A breach, misinterpretation, or misapplication of existing policy or established practice.

III. GRIEVANCE PROCEDURE

A faculty or academic staff member may file a formal grievance against an administrator that alleges a violation of University, college, department, school, or unit policy or established practice.2

A. INITIATION OF GRIEVANCE PROCEEDINGS

A faculty or academic staff member who feels aggrieved may discuss his/her complaint in a confidential conference with the FGO. The FGO shall inform the faculty or academic staff member if the potential grievance falls under the jurisdiction of another University policy rather than this Policy.

B. FILING A GRIEVANCE

To file a grievance, an individual faculty or academic staff member must submit a written, signed statement (the “grievance”) to the FGO within 28 days3 of the date that the grievant knew or should have known of the alleged violation.4 The grievance must contain the following information:

  1. the specific policy or established practice that has allegedly been violated;
  2. the date of the alleged violation and the date on which the grievant became aware of the alleged violation;
  3. the facts relevant to the alleged violation;
  4. the person(s) against whom the grievance is filed (the “respondent”); and
  5. the redress sought.

The grievant must also submit any documents that are relevant to the FGO’s initial jurisdictional findings pursuant to Section III.D of this Policy.

C. THE RESPONDENT

The FGO will provide a copy of the grievance and any documents submitted with the grievance to the respondent within three (3) days of receipt. The respondent shall submit any relevant documents concerning the FGO’s initial jurisdictional findings to the FGO within seven (7) days of receipt of the grievance.

D. JURISDICTIONAL & PROCEDURAL DECISIONS

  1. The FGO shall determine whether the following jurisdictional requirements have been met within 14 days of the date that the grievance was filed. The FGO may also seek information from appropriate University office(s) to assist in making these jurisdictional determinations. hearing panel find that the evidence supporting at least one of the allegations in the grievance is more convincing than the opposing evidence. The FGO shall forward the Provost’s decision to the parties, their counsel, and the members of the hearing panel within three (3) days of its receipt.
    1. Whether the grievant has standing under the Faculty Grievance Policy;
    2. Whether the grievance has been filed in a timely fashion;
    3. Whether the grievance identifies an appropriate respondent(s);
    4. Whether the grievance adequately identifies the existing policies and/or established practices alleged to have been violated;5
    5. Whether the grievance contains a reasonably adequate statement of the facts relevant to the complaint; and
    6. Whether any other jurisdictional issue(s) need to be decided in connection with the initiation of the grievance and, if so, an explanation of such issues.
  2. The FGO shall inform the parties in writing whether each jurisdictional requirement has been met, along with the names of any University offices consulted regarding the jurisdictional decisions.6 If any jurisdictional requirement has not been met, the FGO shall dismiss the grievance.
  3. Each party shall have the right to appeal the FGO's jurisdictional decision(s) by filing a written statement explaining the reason(s) for the appeal with the FGO within 14 days of the issuance of such decision.
  4. If any party files an appeal of the FGO’s jurisdictional decision(s), the FGO shall submit the written appeal, together with any written response to the appeal from the parties and a written response by the FGO, to a three-person jurisdictional appeal panel drawn randomly by the FGO from the list of faculty, librarians, and other academic staff eligible to serve as members of the University Hearing Board or University Appeals Board. (See Section III.H of this Policy.) The panel shall deliberate and submit to the FGO a written decision (including the basis for its decision) on the appeal within seven (7) days of its convening by the FGO. No faculty member, librarian, or other academic staff member may serve on more than one jurisdictional appeal panel in any period of seven (7) consecutive years.
  5. The FGO shall forward a copy of the jurisdictional appeal panel’s decision to the parties within seven (7) days of its receipt from the panel.
E.   INFORMAL RESOLUTION
  1. The FGO shall confer with the parties and make every reasonable effort to resolve the grievance informally as quickly as possible. Discussions regarding informal resolution are expected to be treated confidentially and may not be disclosed or referenced during any subsequent formal proceedings on the grievance. The FGO may recommend that the grievant drop the grievance because it lacks merit or for other just cause. Such a recommendation, however, shall not be binding on the grievant.
  2. If the FGO determines that the grievance cannot be informally resolved, the FGO shall so notify the parties in writing. If the grievant wishes to pursue the grievance, the grievant must submit a written request for a formal hearing to the FGO within 14 days of such notice. Failure to submit such a request will constitute a waiver of the faculty member’s right to pursue the grievance.
F.   AMENDMENTS

A Grievant may amend his/her grievance until 28 days before the scheduled date for the formal hearing on the grievance, as long as the proposed amendment concerns the same subject matter as the grievance. The FGO shall decide whether to accept the proposed amendment, and any jurisdictional issues generated by the proposed amendment, at least 21 days before the scheduled date for the formal hearing.  Either party may challenge the FGO’s decision by filing a written appeal with the FGO within seven (7) days of the FGO’s decision. Such appeals are processed in the same manner as other jurisdictional appeals under Section III.D.4 of this Policy. Any procedural issues (such as submission of new documents) generated by the amendment shall be decided by the hearing panel at the beginning of the hearing.

G.  CONSOLIDATION OF GRIEVANCES

If a grievant files two (2) or more separate grievances against the same respondent(s) that raise related allegations or arise from a common set of facts, the FGO may consolidate such grievances into one grievance to be heard by a single panel. If a grievant files two or more separate grievances concerning different issues and the grievances are not consolidated, such grievances will normally be processed and heard sequentially in chronological order determined by the date on which the initial grievance was filed.  Separate grievances filed by different grievants that involve related allegations or arise from a common set of facts may also be consolidated.

H.  GRIEVANCE HEARING AND APPEAL PANEL COMPOSITION
  1. A University Hearing Board and University Appeals Board shall be established from which grievance hearing and appeal panels shall be selected.
  2. All faculty with appointment in the tenure system, librarians and other academic staff with appointment in a continuing appointment system, and full-time fixed-term faculty who have served at least three (3) consecutive years and are engaged in the academic activities of the University on a regular basis are eligible and expected to serve as members of the University Hearing Board or University Appeals Board.7 No faculty/academic staff member or librarian may serve on more than one grievance hearing or appeal panel in any period of seven (7) consecutive years.  At the start of each academic year, the Academic Human Resources Office will provide the FGO with a list of all faculty, academic staff, and librarians eligible to serve on these Boards.8
  3. A grievance hearing panel shall consist of five (5) members of the University Hearing Board who are selected randomly by the FGO.  An appeal panel shall consist of three (3) members of the University Appeals Board who are selected randomly by the FGO. Panel members shall serve throughout an entire proceeding.
  4. The FGO shall take necessary precautions to avoid any conflict of interest on the part of the panel members. No panel member shall be from the same department(s) (or college in the case of non-departmental colleges) as the grievant or respondent.
  5. A panel selected for a grievance involving the denial of reappointment or tenure in the tenure system shall be comprised solely of tenured faculty members. A panel selected for a grievance involving the denial of promotion to full professor shall be comprised solely of tenured faculty who hold the rank of full professor.
  6. A panel selected for a grievance involving the denial of reappointment or promotion in an appointment system other than the tenure system shall be comprised solely of faculty members at the same rank. 
  7. Each grievance hearing panel shall have a Presiding Officer selected at random by the FGO from a list established by the UCFA. The Presiding Officer shall have voice but not be a voting member of the hearing panel. The Presiding Officer shall apply the rules of procedure consistent with the guidelines stated in Section III.I of this Policy.
  8. The FGO shall notify each party of the names of the Presiding Officer (if applicable) and members of the panel. Within seven (7) days of that notice, either party may submit a written challenge to the Presiding Officer or any member of the panel for cause. The challenge must explain the cause for removing the Presiding Officer or panel member. The FGO shall determine whether there is cause to dismiss the challenged member of the panel and select another member.9 In addition, each party shall have two (2) peremptory challenges. The FGO shall notify the parties of any replacement Presiding Officer or members of the panel. Either party may submit a challenge for cause or remaining peremptory challenge to any replacement Presiding Officer or member of the panel to the FGO within three (3) days of that notice.
  9. If a grievance hearing panel loses two (2) or more of its members during the course of a hearing, the hearing shall be terminated, and a new panel selected.
I.  GRIEVANCE HEARINGS: PROCEDURES
  1. Hearings shall be scheduled as expeditiously as possible and with due regard for the schedule of both parties. Grievances involving faculty/academic staff who hold academic year (AY) appointments will normally not be held during summer semester unless the faculty/academic staff member has a summer appointment. On the rare occasion when a party fails to respond to repeated attempts to schedule a hearing or unreasonably delays the scheduling of a hearing, the Faculty Grievance Office will schedule the hearing for the first date available to the panel members and the other party. 
  2. The FGO shall convene the hearing panel and shall be present during all formal proceedings. The FGO shall provide written notice of the time and place of the hearing, the names of counsel, the names of any witnesses, and copies of any documents submitted by the parties and deemed relevant by the FGO, to each party at least seven (7) days before the hearing.
  3. The hearing shall be conducted in good faith and must be completed within 14 calendar days unless the FGO determines that an extension of time is necessary.
  4. All hearings shall be recorded. A party may request and obtain a copy of the recording from the FGO.
  5. Hearings shall be closed unless the parties agree otherwise.
  6. The privacy of confidential records used in the hearing shall be respected.
  7. All parties may present their cases in person and may call witnesses on their behalf.  The names of witnesses must be provided to the FGO at least seven (7) days prior to the hearing date.
  8. A party may elect not to appear, in which event the hearing will be held in his or her absence. Absence of a party shall not be prejudicial to the case.  The FGO may grant permission for a party to appear via alternate communication methods for good cause.
  9. All parties are entitled to counsel of their choice. The name of counsel must be provided to the FGO at least seven (7) days prior to the hearing date.
  10. Any party or counsel shall be entitled to ask pertinent questions of any witness or the other party at appropriate points in hearings.  The Presiding Officer shall determine what questions are pertinent. 
  11. The grievant bears the burden of proving that there has been a violation of policy or established practice. A hearing panel shall decide whether the preponderance of the evidence supports the allegations made by the grievant.10
  12. Hearing panels shall resolve any procedural issues raised by the parties, after providing each party the opportunity to be heard on such matters. However, neither party may challenge the FGO’s initial jurisdictional findings made pursuant to Section III.D of this Policy. The FGO shall distribute all documents submitted by the parties concerning procedural issues to the hearing panel, and shall include such documents in the grievance record. 
  13. Hearing panels may consider evidence submitted by the parties concerning the relative credentials of other faculty members in determining the merit of grievances involving salary, appointment, re-appointment, or promotion. 
  14. Hearing panels shall report their findings and recommendations in writing within 21 days of the completion of the hearing to the FGO, who shall forward them to the grievant, the respondent, their counsel, the Provost, or the President, as appropriate, and to the administrator who is the respondent’s immediate supervisor.  The hearing panel’s report is advisory to the Provost and does not bind the Provost to a particular decision.
  15. When a hearing panel sustains an allegation made in a grievance, it shall recommend appropriate redress consistent with existing policies, procedures, and practices.
  16. The Provost shall decide the grievance, in writing, within 28 days of receipt of the hearing panel’s findings and recommendations.11
  17. All parties shall be notified in writing of their right to appeal by the FGO when a copy of any decision is forwarded to the parties.

IV.  APPEALS

A.  Initiation of Appeals

  1. The decision of the Provost in response to the findings and recommendations of the initial hearing panel may be appealed to the University Appeals Board.  Appeals must allege either that there has been a prejudicial violation of the procedures established for the conduct of the initial hearing, and/or that the decision of the Provost is not consistent with the preponderance of the evidence presented at the initial hearing. 
  2. A written appeal must be filed with the FGO within 28 days of receipt of the decision of the Provost. Failure to appeal within the prescribed time shall be deemed acceptance of the Provost’s decision.
  3. If an appeal is filed, the Provost’s decision on the grievance shall not be implemented, except insofar as the appeal is dismissed on jurisdictional grounds or the decision is subsequently ratified by the President. 

B.  Appeal Panel Procedures

  1. The FGO shall randomly select a three-person appeal panel from the University Appeals Board. 
  2. Appeals shall be decided upon the written appeal, the record of the hearing, the Provost’s decision, any written response to the appeal submitted by the parties, and a recommendation provided by the FGO.  The parties may not submit new information or evidence unless the information/evidence is relevant to the appeal and was previously unavailable to the party although the party acted with due diligence to obtain such evidence.
  3. Upon receipt of the appeal, the appeals panel will determine whether the jurisdictional requirements described in Section IV.A.1 of this Policy have been met.  If the jurisdictional requirements have not been met, the appeal will be dismissed and the decision of the Provost shall stand.
  4. If the appeal panel determines that it has jurisdiction to consider the appeal, the appeal panel will review the materials described above and recommend the affirmation, reversal, or modification of the Provost’s decision on the grievance.  The panel may also recommend that the grievance be reheard by a new grievance hearing panel if it determines there was a prejudicial violation of the procedures established for the conduct of the initial hearing.
  5. The findings and recommendation of the appeal panel shall be forwarded to the FGO within 21 days of the completion of the panel’s review of the appeal. The FGO shall forward the findings and recommendations to the President and to the parties and their counsel within three (3) days of its receipt.
  6. For stated cause, the President may return the findings and recommendations to the appropriate panel once for reconsideration.
  7. The President shall decide the appeal within 28 days of receipt of the appeal panel’s findings and recommendations.  The FGO will forward a copy of the President’s decision to the parties, their counsel, and the members of the appeal panel within three (3) days of its receipt.

V.  CONFIDENTIALITY

All records and information related to grievance proceedings under this Policy (both formal and informal) shall be kept confidential to the degree permitted by law.  The FGO, parties to the grievance, their counsel, and other relevant administrators and faculty (including witnesses, presiding officers, and panel members) shall respect the confidentiality of information and records and the privacy of all parties whose interests are affected by a grievance.

VI. OTHER UNIVERSITY POLICIES

  1. This Policy does not preempt or replace the Anti-Discrimination Policy (“ADP”) or the Relationship Violence & Sexual Misconduct Policy (“RVSMP”).  Any grievance alleging violation of the RVSMP or discrimination or harassment in violation of the ADP will be referred to the appropriate University office for investigation and determination regarding those claims.  The remainder of the grievance will proceed but will be revised to remove all references to the claims of discrimination/harassment or violation of the RVSMP.    
  2. A grievant must promptly notify the FGO if he or she initiates litigation against the University while a grievance is pending. A grievant may not pursue a complaint under this Policy while litigating the same issue(s).  A grievance filed under this Policy shall be held in abeyance by the FGO pending the conclusion of the litigation.
  3. Decisions and actions taken by an Institutional Review Board (IRB) and its Chairperson cannot be grieved under this Policy.  However, disciplinary action imposed by an administrator on the basis of IRB action is grievable under this Policy. 
  4. Decisions and actions taken under the Procedures Concerning Allegations of Misconduct in Research and Creative Activities, the Anti-Discrimination Policy, the RVSMP, or the Faculty Conflict of Interest Policy cannot be grieved under this Policy.  However, disciplinary action imposed by any administrator on the basis of a decision under one of these policies is grievable under this Policy.

VII. INDEMNIFICATION

In accordance with the University’s Indemnification Policy, indemnification shall be provided to the FGO, the FGO staff, members and Presiding Officers of hearing and appeal panels, and University faculty serving as unpaid, volunteer counsel for the parties to a grievance, in their roles as participants in a grievance.

VIII. UNIVERSITY COMMITTEE ON FACULTY AFFAIRS

  1. The University Committee on Faculty Affairs (UCFA) serves as an advisory committee to the FGO regarding the University’s faculty grievance process.
  2. The UCFA shall participate in the appointment, reappointment, and evaluation of the FGO, as described in the Appendix to this document.
  3. The UCFA shall periodically review the performance of the FGO according to the procedures set forth in the Appendix to this document.
  4. The UCFA shall have the responsibility to ensure that the procedures set forth in this document are fully implemented.

IX. FACULTY GRIEVANCE OFFICIAL

  1. The FGO shall attempt to resolve grievances informally and without resort to formal hearings and to assure that all formal hearings are conducted in accordance with the procedures prescribed in this document.
  2. The FGO shall administer the grievance procedures as set forth in this document and shall advise the parties about appropriate procedures to follow.
  3. The FGO may request and shall have broad access to all relevant University information and records related to a pending or potential grievance, except those required to be kept confidential by law or contractual obligation.  Upon request from the FGO, individuals or units should provide documents to the FGO in a form that protects the privacy and confidentiality of third parties.  The FGO will share the documents with the grievant/potential grievant if the FGO determines that the documents are relevant to the grievance/potential grievance and that the grievant/potential grievant has need of them for resolution of the grievance.
  4. Upon the request of either party, the FGO has the authority to request that appropriate individuals discontinue or postpone any action threatening irreparable harm to any party to a grievance pending final disposition of a grievance.
  5. The FGO shall not serve as advocate for any party to any grievance and may participate in a grievance proceeding only as FGO.
  6. The FGO may recommend to the UCFA changes in this Policy.
  7. The FGO shall report once a semester to the UCFA and once each academic year to the University Council, and shall sit as an ex officio member of the University Council.
  8. The FGO shall forward to the Chairperson of the UCFA a copy of all decisions of the Provost and President.  The Chairperson of the UCFA may share the decisions with the members of the UCFA.  The Chairperson of the UCFA and the members of the UCFA shall maintain the confidentiality of the decisions.
  9. The FGO shall maintain records of all grievances.

X. REVISION OF THIS POLICY

  1. Any faculty member or administrator may propose revisions to this Policy.
  2. All proposals for revision shall be submitted to the UCFA, which shall consider them and forward them to the Faculty Senate.
  3. If approved by the Faculty Senate, the proposal shall be submitted to the University Council.
  4. Proposed amendments and revisions approved by the University Council shall be forwarded to the President for action by the Board of Trustees and shall become effective upon Board approval.

XI. HISTORY

An Interim Faculty Grievance Procedure was approved by the Board of Trustees on May 19, 1972. A revised Faculty Grievance Procedure was approved by the Board of Trustees on April 5, 1991 and revised on June 28, 2002, August 16, 2009, and January 1, 2016.

APPENDIX

Appointment, Reappointment and Evaluation of the FGO

I.    Appointment of and Support of the FGO
  1. UCFA shall prepare a list of candidates for presentation and discussion with the Provost and President.
  2. Upon approval of the Provost, the President shall appoint the FGO for a term not to exceed five years. The President may reappoint the FGO for additional terms of up to five years each.
  3. The FGO shall work with but be independent of the other administrative structures of the University in the pursuit of grievance dispute resolution.
  4. The UCFA shall consult as necessary with the Provost and President concerning salary, budget, office, and staff for the FGO.
  5. Whenever a vacancy occurs in the FGO position, the UCFA shall confer and recommend to the Provost and the President an individual to serve as Acting FGO.
II. Evaluation and Reappointment of the FGO
  1. The UCFA shall annually evaluate the FGO pursuant to criteria established by the UCFA in consultation with the Provost and the President.
  2. The UCFA shall discuss the evaluation with the FGO and shall forward its evaluation and a recommendation as to salary to the Provost and President.
  3. The UCFA shall establish procedures for review of the FGO’s performance which shall be undertaken when reappointment of the FGO is under consideration. Such procedures shall involve input from individuals who have participated in grievances as grievants, respondents, their counsel, or hearing or appeal panel members or presiding officers. 
  4. If the FGO is a candidate for reappointment, the UCFA shall conduct a review of  all of the FGO’s years of service and submit a recommendation on the FGO’s reappointment to the Provost and President.              

Footnotes:

1If a grievance is filed against the Provost individually, a hearing will be held pursuant to Section III.I of this Policy.  The finding(s) and recommendation(s) of the Hearing Panel will be forwarded to the President for decision instead of to the Provost.  The President’s decision will be final and not subject to appeal. 

2This Policy and its grievance procedures may not be utilized by faculty or academic staff who are covered by a collective bargaining agreement.

3References to days in this document are to calendar days.  If a deadline in this Policy falls on a weekend or University holiday, the deadline will be extended to the next day on which the University is open for business.

4The FGO may waive or extend the time limits specified in this Policy for good cause or by mutual agreement of the parties.  “Good cause” includes, but is not limited to, circumstances outside of a party’s control, such as illness, approved leave of absence, or extended travel for University business.  Even with a showing of good cause, time limits will generally not be extended beyond an additional 28 days. 

5As part of the initial jurisdictional determination, the FGO shall determine whether the policy specified in the grievance applies to the named respondent. 

6Notices provided under this Policy will be delivered to the campus address for both the grievant and respondent unless either party notifies the Faculty Grievance Office in writing that an alternate address should be used.

7An individual who also holds an appointment as an Administrator is not eligible to serve as a presiding officer or as a member of the University Hearing Board or University Appeals Board.

8An individual who is on a sabbatical or other approved leave of absence is excused from service on the University Hearing Board and University Appeals Board for the duration of the leave.

9The standard the FGO shall follow in ruling on challenges is whether, in light of the challenged person’s knowledge of the case or personal or professional relationships with a party, the challenged person would be able to fairly and impartially hear the case and to render a fair and impartial judgment.

10Preponderance of the evidence” means that the existence of the fact in issue is more probable than not.  The “preponderance” of the evidence standard would be met where the members of the hearing panel find that the evidence supporting at least one of the allegations in the grievance is more convincing than the opposing evidence.

11The FGO shall forward the Provost’s decision to the parties, their counsel, and the members of the hearing panel within three (3) days of its receipt.

 

Enacted: 5/19/72

Amended: 4/5/91, 6/9/95, 10/22/99, 6/28/02, 10/30/15

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