back                                                                2005-07 edition (approved by the Board June 2005)

 

 

APPENDIX E

FACULTY GRIEVANCE PROCEDURE

I.      Purpose and Eligibility

        A.  The purpose of the faculty grievance procedure is to secure just resolution of differences within the university community.

 

        B.  This grievance procedure may be used by a faculty member who believes that (1) he/she has been adversely affected in his or her professional capacity by the action(s) of a faculty member, a chair, a dean, or an administrator, and (2) this action(s) is (a) unfair or unreasonable, (b) arbitrary or capricious, (c) a misapplication of established procedures of the University, (d) a violation of academic freedom as described in the Faculty Handbook, or (e) an action(s) that jeopardizes the health or safety of the faculty member.

 

        C.  This procedure shall apply to all full-time, part-time, and limited-term faculty members holding the rank of professor, associate professor, assistant professor, instructor, or lecturer.

 

        D.  The deadlines set forth within these procedures shall be suspended for those periods that fall between academic quarters and the regular academic year.  Unless the Faculty Grievance Committee members and the parties involved agree otherwise, no action will be taken on any step during the summer between the last day of Spring Quarter and the first day of Fall Quarter.

 

II.    Exclusions and Qualifications

 

        This grievance procedure does not apply to complaints arising from:

 

        A.  Tenure, promotion, or merit where these complaints are based only on disagreements over whether criteria are satisfied;

 

        B.  Planning and Reduction in Force procedures;

 

        C.  Complaints heard under the procedures in Appendix C of the Faculty Handbook unless determined under those procedures not to be instances of discrimination or sexual harassment.

 

        Complaints in categories A through C above are covered elsewhere in the Faculty Handbook.

 

III.   Faculty Grievance Committee

 

        A.  The Faculty Grievance Committee shall be constituted as described in Bylaw 7.7 in Appendix B of the Faculty Handbook.

 

        B.  A member of the Faculty Grievance Committee shall disqualify her/himself from any proceeding involving a member of her/his college (except the College of Arts and Sciences) or department.  Any member of the Faculty Grievance Committee may also disqualify himself/herself from hearing a particular grievance for reasons of personal prejudice or unavoidable absence for a period of one week or more during the period in which the grievance is to be heard.

 

        C.  Each party in the grievance may excuse one member of the Faculty Grievance Committee without stated cause.

 

        D.  Each party in the grievance may challenge any member of the Faculty Grievance Committee for prejudice.  Such challenge must be made in writing to the Executive Council of the Faculty Senate, which shall make a ruling.

 

        E.   Should the Chair of the Faculty Grievance Committee be disqualified for one of the reasons described above, the Vice Chair shall assume the duties of the Chair.  Should both the Chair and the Vice Chair be disqualified for one of the reasons described above, the remaining members of the Committee shall elect an interim chair from among their members.

       

        F.  Should the number of members of the Faculty Grievance Committee available to hear a grievance fall below five, the Executive Council of the Faculty Senate shall appoint additional temporary members to the Committee to bring its number to five.  Temporary members may also be challenged for prejudice.

 

IV.  Steps in the Grievance Procedure

 

At any step in the Grievance Procedure set forth in this Article IV the parties to the grievance may agree to halt the proceedings and to solicit the assistance of the Ombuds*  to help resolve the complaint or grievance.  If this is not accomplished, the proceedings shall be reinstituted and subsequent timelines shall be followed. [For roles and offices in the Grievance Procedure, including the "Ombuds", see the Constitution of the Faculty, Appendix B, Bylaws 7.6 and 7.6.1.]

 

(For all purposes hereunder, and unless otherwise specifically provided, the word “days” refers to days. when classes are in session (including finals week) during the university's regular academic year session, excluding summer quarter. Time limits may be extended by mutual agreement of all parties to the grievance. Throughout the procedure, the role of the Faculty Senate President may be fulfilled by another member of the Senate Executive Council designated by the Faculty Senate President and the role of the Chair of the Grievance Committee may be fulfilled by the vice-Chair if designated by the Chair.

 

A.  Confidentiality.

 

All parties to every step of the Grievance Procedure (including but not limited to all efforts at Pre-Grievance Complaint Resolution), shall be expected to maintain confidentiality with respect to all matters involved in the grievance to the fullest extent allowed by law.  [See Section I, part IX, Faculty Files, of this handbook for the policy on confidentiality.]

 

B.  Pre-Grievance Complaint Resolution.

 

1.  During the pre-grievance complaint resolution process, the Faculty Senate President is charged with interpreting this policy.

 

2.  Parties involved in the complaint are encouraged to consult with the Ombuds at any point of the grievance process. 

 

3.  Filing of Written Complaint. 

 

a.  A faculty member who is contemplating filing a grievance shall commence the process by filing a written complaint with the Faculty Senate President within sixty (60) days of the date that the faculty member (“complainant”) knew or reasonably should have known of the action that generated the complaint. If the grievance concerns a pattern of actions, the notification should occur within sixty (60) days of the date that the complainant knew or reasonably should have known of the most recent action. 

 

b.  The complaint shall state the basis of the possible grievance, identify the person or persons whose actions are the subject of the possible grievance (respondent or respondent(s)) and set forth facts sufficient to make a prima facie showing that the standards for a grievance set forth in Faculty Handbook Appendix E, Section I, paragraph B have been met.  A prima facie showing means that, if the facts presented were uncontradicted or unexplained, they would be sufficient to sustain a grievance decision in favor of the complainant.

 

c. If the complaint is not resolved at the Pre-Grievance Complaint Resolution level (i.e., with the help of the Ombuds or administratively as set forth is subsections 5 and 6 below), the complaint may formally initiate a grievance in accordance with Section C.

 

    4. Consultation with the Faculty Senate President concerning Pre-Grievance Complaint Resolution.

 

Within five (5) days of filing a written complaint, the complainant shall meet with the Faculty Senate President to discuss the Article IV Grievance Procedure.  Within five (5) days following this meeting, the Faculty Senate President shall forward a copy of the written complaint to the Ombuds to begin the pre-grievance complaint resolution process. 

 

5.  Assistance of Ombuds in Pre-Grievance Resolution of the Complaint.

 

Within five (5) days of receiving a written complaint, the Ombuds will forward a copy of the complaint to the respondent(s).  Within fifteen (15) days after forwarding the complaint to the respondent(s), the Ombuds shall attempt to facilitate an informal resolution of the complaint.  If the Ombuds is unable to effect a satisfactory resolution, then the Ombuds will report that failure to the Faculty Senate President.  The complainant may choose to drop the complaint or continue by using the Administrative Dispute Resolution as outlined in Section IV B.6.

 

6.  Administrative Dispute Resolution.

 

a.  Administrative resolution is the second process that shall be pursued prior to the formal filing of a grievance except as stipulated below. During this process all parties are encouraged to consult with the Ombuds.  Administrative resolution will begin at the appropriate level. Complaints within a department will begin at the level of department Chair, complaints across departments or involving a Chair will begin at the level of Dean, complaints across colleges or involving a Dean will begin at the level of Provost.  Complaints against the Provost or President cannot use the administrative dispute resolution process and if the Omsbud fails to effect a satisfactory resolution, then the complainant may choose to file a formal grievance in the manner set forth in Section C.  Within five (5) days of receiving the written complaint, the appropriate administrator, will forward a copy of the complaint to the respondent(s).  If the appropriate administrator is unavailable during the prescribed timeline and an appropriate replacement administrator is not available (such as an associate Dean), then this fact is noted to the Faculty Senate President and the next administrator in the following ordered steps is notified to take action. 

 

b.  If the Chair is unable to effect a satisfactory resolution within five (5) days of forwarding the complaint to the respondent(s), the matter shall be forwarded to the appropriate Dean with a written report.  A copy of the report shall be forwarded to the Faculty Senate President. 

 

C.  If the Dean is unable to effect a satisfactory resolution within five (5) days, the matter shall be forwarded to the Provost with a written report.  A copy of the report shall be forwarded to the Faculty Senate President.

 

d.  If the Provost is unable to effect a satisfactory resolution within five (5) days, then the Provost shall submit a written report to the Faculty Senate President describing the efforts made to resolve the complaint administratively. The complainant may choose to file a formal grievance in the manner set forth in Section C.

 

C.  Filing of Grievances.

 

Within fifteen (15) days of notification to the Faculty Senate President of a failure of the Pre-Grievance Complaint Resolution process as described in Section B, the complainant may formally initiate a grievance by filing a written complaint with the Faculty Senate President.  The complaint shall state the basis of the grievance, demonstrate that the standards for a grievance set forth in the Faculty Handbook Appendix E, Section I, paragraph B are met, set forth evidence sufficient, if true, to warrant the holding of a grievance hearing, and state the requested remedies.  The burden of proof is upon the complainant.

 

The Faculty Senate President shall bring the written complaint to the Faculty Senate Executive Council (“Executive Council”) within five (5) days.  Based on the written complaint and reports from the department Chair, Dean and Provost, the Executive Council shall decide whether there is sufficient evidence that a grievable action may have occurred.  For the purposes of making this determination, the Executive Council shall assume that information provided in the complaint is true.

 

If by majority vote, the Executive Council decides that the evidence, even if true, would not constitute a grievable action, the complainant and respondent(s) shall be so advised and the matter will not proceed to a grievance hearing.

 

If the Executive Council decides that the evidence, if true, would constitute a grievable action, the complainant and the respondent(s) shall be so advised.  The complainant will provide to the Faculty Senate President, within ten (10)days of receiving formal notification from the Faculty Senate President, any additional evidence or documentation in support of the grievance.  Within five (5) days of receiving any such evidence or documentation, the Faculty Senate President shall forward a copy of the complaint and supporting evidence to the respondent(s) and ask the respondent(s) to produce any evidence or documentation in support of the respondent’s position with respect to the grievance.  The respondent(s) shall have ten (10) days following a request to submit any such evidence or documentation.  The Faculty Senate President will forward a copy of the respondent’s evidence and documentation to the complainant within five (5) days. 

 

Within five (5) days of receiving any evidence or documentation from the respondent(s), the Faculty Senate President shall ask the Chair of the Standing Committee on Grievance and Sanctions (“Standing Committee”) to schedule a grievance hearing. Except under extraordinary circumstances, such as the inability to convene a Hearing Panel due to the absence or disqualification of Standing Committee members, the grievance hearing shall occur within ten (10)days of the Faculty Senate President’s request for a hearing.   

 

D.  Grievance Hearings.

 

Grievance hearings shall be presided over by a Hearing Officer and heard by a Hearing Panel.  The Faculty Senate President shall make available to the Hearing Panel and Hearing Officer all documentation related to the hearing, including, the complaint, any records from the Administrative Dispute Resolution process, and the Executive Council’s findings in determining that the action is grievable.

  

1.  Hearing Officer.

 

a.   The Hearing Officer is charged with interpreting this policy during the formal grievance process.

 

b.   The President of the University and the Faculty Senate President shall jointly select the Hearing Officer, who shall serve as a non-voting presiding officer of the Hearing Panel. The Hearing Officer should normally be a faculty member. He or she must have an understanding of grievance procedures.  The Faculty Senate President shall notify all parties to the grievance concerning the nomination of the hearing officer.

 

c.    Each party of the grievance may challenge the selection of the Hearing Officer for prejudice.  Such challenge must be made to the Executive Council within three (3)days of the designation of the Hearing Officer.  The Executive Council shall make a ruling on the challenge within five (5) days.  To establish prejudice, the party must provide evidence sufficient to show that the Hearing Officer will be unable to exercise his or her functions impartially in the particular case.

 

2.  Hearing Panel.

 

The Faculty Senate President shall send all parties to the grievance a list of members of the standing grievance committee.  The Hearing Panel shall be composed of five (5) members selected by lottery from among the members of the Standing Committee not excluded by provisions below. 

 

a.   A member of the Standing Committee shall be disqualified from any hearing involving a member of his or her department or, in the case of Fairhaven or the Library, that unit.   Any member shall disqualify himself or herself from a particular hearing for personal prejudice.  A member may also disqualify himself or herself as a result of unavoidable absence for five (5) days or more during the period in which hearing is scheduled to take place.

 

b.  Each party to the grievance may excuse one member of the Standing Committee without stated cause.

 

c.  Each party to the grievance may challenge any member of the Standing Committee for prejudice. Such challenge must be made in writing to the Executive Council within three (3) days of the designation of the members of the Hearing Panel.  The Executive Council shall make a ruling on the challenge within five (5) days. To establish prejudice, a party must provide evidence sufficient to show that the Standing Committee member will be unable to exercise his or her functions impartially in the particular case.

 

d.  If the number of members of the Standing Committee available to hear a grievance falls below five, the Executive Council shall appoint additional temporary members to the Committee to bring the Hearing Panel up to five. Temporary members may also be challenged for prejudice.

 

3.  Representation of the Parties.

 

A party may be advised during the conduct of the hearing by no more than two persons.  Any party having advisors must identify them to the Hearing Officer at least five (5) days prior to the hearing.  With the permission of the Hearing Panel, advisors may address the Hearing Panel and Hearing Officer and question witnesses.

 

4.   Witnesses.

 

Any party and/or the Hearing Panel may call witnesses.  Lists of witnesses to be called shall be provided to the other party or parties at least three (3) days prior to the hearing.

 

5.  Prehearing Meetings. 

 

The Hearing Panel may hold joint prehearing meetings with the parties in order to simplify the issues, effect stipulations of facts, or achieve such other appropriate prehearing objectives as will make the hearing fair, effective, and expeditious. 

 

6.  The Grievance Hearing.

 

a.  The hearing shall be closed.

 

b.  The hearing process will normally be conducted as follows:

 

    i.   Opening statements shall be presented by the complainant and the respondent(s). 

   ii.    The complainant shall present evidence to support the grievance, including the testimony of any witnesses.  The respondent(s), advisors (with permission of the hearing panel), or hearing panel may question the witnesses.

  iii.     The respondent(s) shall present evidence in opposition to the grievance, including the testimony of any witnesses.  The complainant, advisors (with permission of the hearing panel), or hearing panel may question the witnesses

   iv.   The complainant may present rebuttal evidence, which shall be limited to responses to any new issues raised by the respondent(s).

  v.  The complainant and the respondent(s) shall make closing statements.

 

c.  The parties, any advisors (with permission of the Hearing Panel), and the members of the Hearing Panel shall have the right to question witnesses testifying orally.  If witnesses are unable to testify in person, and with the consent of both parties, the Hearing Panel may submit questions for written responses or may use distance meeting technology.  Where the witnesses cannot or will not appear, but the Hearing Panel determines that the interests of justice require admission of their statements, the Panel will identify the witnesses, procure their statements, and, if possible, provide for questions.

 

d.  All oral testimony, including testimony by distance meeting technology, shall be transcribed by a court reporter or other qualified individual acceptable to the Attorney General’s office and provided at the University’s expense.

 

f.  The Hearing Panel may grant adjournments to enable either party to investigate evidence to which a valid claim of surprise is made.

 

g.  All testimony of parties and witnesses shall be given under oath or on affirmation.

 

 

7.  The Hearing Panel’s Power to Compel Evidence.

 

a.    The Hearing Officer may instruct any person who is party to the hearing or an administrative officer or administrative employee of the University to testify or to produce a specific document or other thing belonging to a party or to the University relevant to the issues in the proceedings.  The hearing panel shall decide whether evidence is relevant.

 

b.   The failure by any complainant to produce such testimony or documents or things requested by the panel may result in dismissal of the proceedings, except in such cases where the President of the University shall determine, after consultation with legal counsel if she or he chooses, that such information is legally privileged from disclosure or subject to the University policies of confidentiality. The failure by any party to produce testimony, documents, or things requested by the Hearing Panel may result in the drawing of an inference adverse to the position of one of the parties to the grievance.  Such inferences shall be stated in the record concerning the issues to which the evidence sought would have been relevant.

 

c.   The Hearing Panel shall not be bound by strict rules of legal evidence and may admit any evidence that is of probative value in determining the issues involved. 

 

8.  Grievance Decision

 

a.  Within ten (10) days after the receipt of the hearing transcript, the Hearing Panel shall set forth its decision in writing. In its written decision, the Hearing Panel shall set forth its findings with respect to each of the material grounds or issues raised and to the relief requested by the parties and state its conclusions regarding those issues. The findings and conclusions shall be based on the preponderance of the evidence presented in the hearing record.  The decision shall also recommend any actions necessitated by the decision and identify the specific remedy, if any, to be provided.  The decision shall require a majority vote of the Hearing Panel.  The number of ayes and nays shall be part of the record.

 

b.  The Standing Committee shall maintain, in a secure location, an official record of the hearing in the Faculty Senate office for the period required by law. At the end of that period, the official record shall be destroyed. The record shall include notices of all proceedings, any documents filed with the Committee by either party, written documents received or considered by the Committee at the hearing, a court-quality transcript of all oral testimony, any audio-taped records of the hearing or other oral testimony, and the decision of the Hearing Panel itself.

 

c.  Within 24 hours of the completion of the Hearing Panel's final written decision, the Panel shall deliver copies of the decision to the President, the Faculty Senate President and the parties. In cases in which the President is a party, the decision shall also be delivered to the Secretary of the Board of Trustees.

 

d.   Appeal To or Review By the University President.

 

      i.  Any order of a Hearing Panel, other than cases in which the President of the University is a party in the case, shall become a final decision of the University unless either party files an appeal to the President within fifteen (15) days of receiving the Panel’s decision, or unless the President elects to independently review the decision by giving written notice of intent to review to the parties within fifteen (15) days of the date of delivery of the decision to the President.

 

     ii.  Within thirty (30) days of commencement of the review, unless in the President's discretion more time is necessary to consider additional issues or arguments, the President shall either:  (1) affirm the Hearing Panel's decision; or (2) remand for further proceedings. Any decision of the President to remand must be based on findings of the President that: the decision of the Hearing Panel was arbitrary or capricious, the procedures followed by the Hearing Panel in reaching its decision were materially and prejudicially unfair or not in accordance with the law or University rules or regulations, or the review in which he or she has engaged has revealed the importance of evidence which the Hearing Panel did not adequately consider.

 

   iii,  Upon remand, and within fifteen (15) days thereafter, the Hearing Panel shall reconsider its decision and the reasons given by the President for remand, and shall report back to the President its decision on remand. The President shall then affirm, reverse or amend the Hearing Panel's decision on remand. Any decision of the President to reverse or amend must be based on findings that: the Hearing Panel's decision was not supported by a preponderance of the evidence in the record, the Hearing Panel's decision was arbitrary or capricious, or the procedures followed by the Hearing Panel were materially and prejudicially unfair or in violation of the law or University rules. Upon a decision by the President to affirm, reverse or amend the decision of the Panel,  the adjudication will be deemed final.

 

e.   Cases in Which the University President is a Party.

 

       i.  Any order of a Hearing Panel with respect to a case in which the President is a party shall become a final decision of the University unless either party files an appeal to the Board of Trustees (“Board”) within fifteen (15) days of the date of delivery of the decision to the Secretary of the Board, or unless the Board elects to independently review the decision by giving written notice of intent to review to the Hearing Panel and the parties within fifteen (15) days of the date of delivery of the decision to the Secretary of the Board.

 

     ii.  Within thirty (30) days of commencement of any Board review of a decision, unless in the Board's discretion more time is necessary to consider additional evidence or arguments, the Board shall either affirm the Hearing Panel's decision; or remand to the Hearing Panel for further proceedings. Any decision of the Board to remand must be based on findings of the Board that: the decision of the Hearing Panel was arbitrary or capricious, the procedures followed by the Hearing Panel in reaching its decision were materially and prejudicially unfair or not in accordance with the law or University rules or regulations, or the review in which the Board has engaged has revealed the importance of evidence which the Hearing Panel did not adequately consider.

 

    iii.  Within fifteen (15) days of any remand by the Board, the Hearing Panel shall reconsider its decision and the reasons given by the Board for remand, and shall report back to the Board its decision on remand. The Board shall then affirm, reverse or amend the Hearing Panel's decision on remand. Any decision of the Board to reverse or amend must be based on findings that: the Hearing Panel's decision was not supported by a preponderance of the evidence in the record, the Hearing Panel's decision was arbitrary or capricious, or the procedures followed by the Hearing Panel were materially and prejudicially unfair or in violation of the law or University rules. Upon a decision by the Board to affirm, reverse or amend the decision of the Panel, the adjudication will be deemed final.