Finance and Administration

Grievance Procedures for a SPA Employee

Human Resources Policy HR 19 95 (Revised June 14, 2012) 

PURPOSE To provide a means of improving communication between supervisors and employees; thereby establishing principles of administration to ensure a prompt, orderly and fair response to an employee’s grievance or complaint.

WHO IS COVERED This policy applies to current and former employees in positions that are subject to N.C. Gen. Stat. § 126-1 et seq. (the State Personnel Act). Also subject to this policy are persons in temporary SPA positions, persons in a probationary status in an SPA position, persons who have completed probationary status in an SPA position but who are not yet career state employees, career state employees and applicants for SPA positions. A covered person's rights to maintain a grievance under this policy will depend upon the person's status (e.g. former employee, applicant, career state employee, temporary employee) and whether the person has presented a grievable issue under the regulation.

Definitions 1. Career State Employee: an employee who is in a permanent position appointment and has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.

2. State employee: any employee who is not a career state employee.

NOTE:   Unless specifically stated otherwise, all days referred to in this policy are calendar days. 

POLICY Any employee having a grievance arising out of or due to employment shall first discuss the problem or grievance with his/her supervisor and follow the grievance procedures established by the University. Any eligible employee under the above stated guidelines, who is not satisfied with the decision of the immediate supervisor, may contact the Human Resources Director or his/her designee. Appeal rights and University grievance procedures are available on the Human Resources website at http://www.uncp.edu/hr/.
TYPES OF ACTION COVERED Employees have the right to present a grievance free from interference, restraint, coercion, or reprisal. Issues that may be grieved through the University Policy include the following:

NOTE:  A career state employee or former career state employee may file a grievance based on:

1. Allegations that dismissal, demotion, or suspension without pay were without just cause;

2. Allegations of denial of promotion due to failure to post;

3. Allegations of failure to give promotional priority over outside applicants;

4. Allegations of failure to give reduction-in-force (RIF) re-employment consideration; and

5. Allegations of failure to give persons with policymaking status priority re-employment consideration for SPA positions.

Any state employee or former state employee (whether or not a career state employee) may file a grievance based on:

1. Allegations of denial of veteran's preference in connection with any employment action;

2. Allegations of discrimination in the denial of promotion, transfer, or training on account of an employee's age, sex, race, color, national origin, religion, creed, political affiliation, handicapping condition as defined by N.C. Gen. Stat. §168A et seq. (Persons With Disabilities Protection Act) or sexual orientation. Sexual orientation for the purpose of this policy shall mean actual or perceived heterosexuality, homosexuality, or bisexuality, or a person’s gender-related identity or expression;

3. Allegations of demotion, RIF, or termination in retaliation for the employee's opposition to alleged discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, handicapping condition as defined by N.C. Gen. Stat. § 168A et seq. (Persons With Disabilities Protection Act) or sexual orientation;

4. Allegations of retaliation for protesting a violation of UNCP's obligations regarding equal opportunity for employment and compensation as defined by N.C. Gen. Stat. §126-16;

5. Denial of a reasonable accommodation in employment in violation of state or federal law regarding persons with disabilities;

6. Denial of a request to remove inaccurate or misleading information from the employee's personnel file;

7. Allegations of any retaliatory personnel action that violates N.C. Gen. Stat. § 126-85 (Protection for Reporting Improper Government Activities);

8. Allegations of a false accusation about, or disciplinary action relating to, political threats or promises in violation of N.C. Gen. Stat. §126-14 or 126-14.1;

9. Allegations of a violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §201 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., or the Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq.

Any applicant for employment with UNC Pembroke may file a grievance based on:

1. Allegations of denial of veteran's preference in State employment;

2. Allegations of denial of employment on the basis of discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, handicapping condition as defined by N.C. Gen. Stat. § 168A et seq. (Persons With Disabilities Protection Act) or sexual orientation; and

3. Denial of a reasonable accommodation in the application process in violation of state or federal law regarding persons with disabilities. NOTE:  Under state law, individuals who file grievances alleging discrimination due to sexual orientation may not appeal the University’s FAD to the Office of Administrative Hearings.

Any issue that is not specified as being grievable under this policy (“non-grievable issue”) shall not be processed as a grievance and shall be dismissed.

Any non-grievable employment issue may be submitted to the Human Resources Office as a general complaint that may be addressed through informal investigation and/or resolution procedures.
Matters relating to management rights necessary to discharge their responsibilities generally are not subject to appeal under this policy. These matters include, but are not limited to, such areas as the programs and functions of the department, standards of service, the overall agency budget, the utilization of technology, and the assignment and reassignment of staff to positions, duty stations, shifts, except where such transfers include a demotion to a lower classification. Written warnings, placement on investigation with pay, or length of period of placement on investigation with pay are not appealable through the University’s grievance procedure. Matters relating to written warnings or performance pay disputes and any other matters not specifically made appealable by the State Personnel Act may not be appealed to the Office of Administrative Hearings.

FILING A GRIEVANCE a) Employees shall be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of the internal grievance without loss of pay, vacation leave or other time credits. Employees must notify their supervisor in writing at least five days in advance of the absence and receive prior approval of the necessity to be absent from work for preparation of the internal grievance.
b) Upon request, the employee’s supervisor shall grant time off for participation as a party in a contested case hearing and other administrative proceedings outside the University in connection with employment, without loss of pay, vacation leave or other time credits. The employee must request the leave in writing to the appropriate supervisor at least five days in advance of the proceeding. Approval is required and employees must document the time needed for this purpose.

c) The Human Resources Office is designated to provide assistance to the employee, schedule hearings and provide consultation to the employee and to management on personnel issues. Employees may request assistance from the Human Resources Director or his/her designee in preparing a written summary of the facts regarding the grievance. At no time does the Human Resources Director or anyone within the Office of Human Resources advocate for the employee or for management.
d)  Neither party to a grievance may be represented by an attorney or other person during the internal University grievance procedure (including at any hearing before a grievance panel).  This does not prohibit a grievant from seeking legal advice and counsel regarding a grievance.
e) If any deadline under this policy falls on a non-workday or any University approved holiday, the deadline shall be extended until the next business day.
f) An employee may access the personnel file by contacting the Human Resources Office. (Employees may examine any information in their personnel file except pre-employment letters of reference and information about a mental or physical disability a prudent doctor would not share.)
g) Grievances may be appealed to the Office of Administrative Hearings under certain circumstances.  This is explained in the “Appeal to the Office of Administrative Hearings” section.
h) Any change(s) made to the University Grievance Procedures shall be communicated to all employees 30 days in advance of the effective date of the change(s).
PROCEDURE STEP 1. Discussion between Employee and Immediate Supervisor or the Appropriate Supervisor
The employee must first discuss the grievance with his/her immediate supervisor. The employee must discuss or present in written form:
a) the act or acts being challenged b) the basis for the grievance c) the result or outcome requested
The discussion must occur within fifteen days of the origination of the circumstances leading to the specific grievance. Before answering the grievance, the supervisor may call higher-level supervisors into the discussion only if the employee agrees. If the employee’s immediate supervisor does not have the decision-making authority to resolve the grievance, the grievance will be referred to the next level supervisor with administrative authority within 48 hours, and the employee will be notified that the grievance has been forwarded. The employee shall receive a written response including applicable appeal rights from the supervisor within seven days from the date the employee filed the original grievance.
If the employee and supervisor cannot reach agreement, the employee shall submit a written request to the Human Resources Director asking to move the grievance to Step 2 (see below). This must occur with applicable appeal rights within seven days following the date of the supervisor response.
STEP 2. Discussion between Employee and Higher Level Supervisor
If the decision rendered in Step 1 is not satisfactory to the employee or if a response is not received within seven days, the employee may request the appropriate department head to consider the matter. The request must be presented within seven days within the receipt of the Step 1 decision. Such request shall be in writing to include the nature of the problem or grievance and the redress sought. The department head shall provide the employee a written decision including applicable appeal rights within seven  days after receiving the request or will advise the employee as to the conditions preventing such a response and when a decision may be expected.
STEP 3. Appeal to the Grievance Committee
If the discussions and subsequent decision of the supervisor in Step 2 are not satisfactory to the employee or if the employee fails to receive a response within the designated time frame, the employee may request a hearing before the grievance committee. The request shall be made in writing to the UNC P Human Resources Director or his/her designee and must be presented within five days following the date the written decision was received or should have been received in Step 2.  The grievant may request assistance from the Human Resources Office in preparing this request for a grievance committee hearing.
The appeal to the Grievance Committee must include:
a) a description of the alleged discrimination, incident or circumstances surrounding the grievance, including the date, time, location of the incident or acts of discrimination or harassment, and the identity of the person against whom the complaint is lodged.
b) outcome sought by the employee
c) the results of those discussions at Steps 1 and 2, and a statement as to why the grievant was dissatisfied with the outcome.
d) the signature of the aggrieved employee.  The appeal must be dated.  No issues may be added to the grievance at this Step.
The University Grievance Committee (herein referred to as the “Committee”) is appointed to hear SPA grievances and recommend a decision and a course of action to the Chancellor. A pool of SPA employees representing the demographic makeup of UNC-P and composed of both non-supervisory and supervisory employees, are appointed by the Chancellor, with staggered terms to assure that experienced employees are always available to serve. The Human Resources Director or his/her designee determines the makeup of the committee based on where the grievance originates. The grievant is allowed to remove two members of the committee by notifying the Human Resources Director in writing. The Human Resources Director or his/her designee will replace the two members from the pool. The grievant is not allowed to remove replacements. The Committee hears all grievances.

The Human Resources Director or his/her designee will notify the Committee of the pending grievance and arrange a time and place to hear the grievance. The Human Resources Director or his/her designee will select Committee members and a Chair based on where the grievance originates. Employees who work in the unit where the grievance originates are generally not selected to serve on the committee for that particular grievance. The employee will be notified of the time, place and members who will serve on the Committee within five days of the date the request is received by the Human Resources Director. The employee will also be notified that he/she may bring any supporting documentation and witnesses for support, and that he/she has the option of removing two of the committee members. The Human Resources Director or his/her designee must be notified, in writing, of which two members the employee desires removed within three workdays after receiving the letter. The Human Resources Director or his/her designee will appoint two replacements. The employee may not remove replacements.

Time and Place of Hearing

The Human Resources Director or his/her designee shall set the date, time and place of all hearings and shall inform the parties accordingly. Requests for postponement of a scheduled grievance hearing must be submitted in writing to the Human Resources Director, who shall grant such requests only upon a showing of good cause. If the grievant fails to appear at the grievance hearing or fails to provide a showing of good cause for failing to attend the grievance hearing, the grievance will be administratively closed.

Pre-Hearing

Once the date for the grievance hearing has been set, the Human Resources Director or his/her designee will direct both parties to submit the following information to the grievance committee within five days from notification: 1) written summary of allegations (or, if management, response to the allegations); 2) documentation to support the party's position; and 3) list of witnesses to be called at the grievance hearing. Management shall grant a grievant's request to view and/or copy his or her personnel file during normal business hours and with advance notice; in addition, management shall respond appropriately to a grievant's reasonable requests for any public records. The Human Resources Director or his/her designee, if called upon to do so, shall determine the reasonableness of any information requests to management from the grievant and notify the parties of such determination.

The Human Resources Director or his/her designee will provide each party a copy of the opposing party's written summary, supporting documentation, and witness list no later than seven days prior to the grievance hearing.

The Human Resources Director or his/her designee will schedule a pre-hearing meeting with the grievance panel in order to discuss the documents submitted and to determine the relevancy of the testimony of potential witnesses. In the event the grievance panel questions the relevance of the presentation of certain evidence or the testimony of a potential witness, it may require the party proposing the evidence to provide a written justification outlining the nature and relevancy of the proposed testimony. Following a review of the justification, the Chair shall issue a ruling as to whether or not the evidence or testimony will be allowed at the hearing.

The Committee’s responsibilities are (1) to conduct an objective, thorough, and timely hearing, which may include requests for information and participation from all parties deemed relevant to the grievance; (2) make a determination as to what happened in the particular incident(s); (3) review relevant policies, procedures and practices for application and consistency; and (4) provide a recommendation of findings and/or proposed resolution to the Chancellor.
Grievance Hearing

The Chair of the grievance committee shall conduct the grievance hearing. The Chair has the authority to prescribe the order and conduct of the hearing; determine the relevance and/or admissibility of evidence or testimony (including the exclusion of evidence or testimony if its value is substantially outweighed by its necessitating the undue consumption of time or other resources); request that a party provide testimony of additional witnesses; and to take any other action necessary to ensure a fair grievance hearing.

The hearing proceedings are confidential and are not open to the public. Attendance at the grievance hearing is limited to the Human Resources Director or her/his designee, the grievance committee members, the parties, and witnesses. Witnesses shall be excluded from the hearing room except when giving testimony.

Prior to the presentation by the parties, the Chair shall introduce the members of the grievance committee, explain the purpose of the hearing and the functions of the grievance panel, and describe the procedures to be followed. Each party may make an opening statement not to exceed 15 minutes in length.

Management has the burden of proving that dismissal, demotion or suspension without pay was imposed for just cause and in compliance with state policy.  In all other issues, the grievant has the burden of proving that the challenged act or decision violated the applicable State or federal law or regulation, or University policy.  Following opening statements, the grievant shall make the first presentation. Each presentation should include the party's own statement and direct examination of witnesses, and opportunity for cross-examination of witnesses by the opposing party. The grievance committee members may ask questions of the parties or witnesses at any time. Witnesses may not ask questions. Each party may make a closing statement not to exceed 15 minutes. The party with the burden of proof shall make the last statement. The Chair shall conclude the hearing.

Post-hearing deliberations At the conclusion of the grievance hearing, the grievance committee members shall meet in closed session to review the evidence and testimony presented. The Human Resources Director or his/her designee shall be available to the committee during the post-hearing deliberations to answer any procedural questions or to clarify any personnel policy issues. The Human Resources Director or his/her designee shall also provide assistance to the grievance committee Chair for preparation of the grievance committee report, which shall set forth the committee’s findings, conclusions and recommendations regarding the issue(s) presented.

The grievance committee Chair shall submit a written report to the Chancellor or the Chancellor’s designee within ten days of the conclusion of the hearing. The Human Resources Director will be available to provide technical advice to the Chancellor or his designee regarding recommendations of the Committee. Within fifteen days of receipt of the grievance panel's report, the Chancellor or the Chancellor’s designee shall issue the University's final decision in writing to the parties, with a copy to the Grievance Coordinator.  The University’s final decision shall include information about the grievant’s appeal rights, if any.

STEP 4. Final Decision
The Chancellor, following receipt and a review of the Committee’s recommendation, will make the final decision. The employee shall be provided the Chancellor’s decision within fifteen days from the date the Chancellor receives the written summary from the Committee. This time limit may be extended with written consent of the employee.  The final decision will include a statement of any applicable appeal rights and advise the grievant that an appeal must be filed with the Office of Administrative Hearings within 30 days of receipt of the final University decision.

The University’s final decision on a grievance (FAD) must be issued within a reasonable period of time from the date the grievance is filed or the employee may, if eligible, appeal to the Office of Administrative Hearings without receiving a FAD. For all issues except demotion or dismissal, a reasonable period of time for an employee to receive a FAD is 120 days from the time the grievance was filed.  A reasonable period for receiving a FAD on a grievance concerning a demotion or dismissal is 90 days.

STEP 5. Appeal to the Office of Administrative Hearings
Any career state employee, or any other state employee who otherwise has standing to appeal to the Office of Administrative Hearings, who is not satisfied with the final agency decision has 30 calendar days from receipt of the final agency decision to file an appeal to the Office of Administrative Hearings. Such appeal is made by filing a petition for contested case hearing with the:

Office of Administrative Hearings 1711 New Hope Church Road Raleigh, North Carolina 27609-6285 (919) 431-3000
SPECIAL PROVISIONS FOR GRIEVANCES ALLEGING DISCRIMINATION
State employees who believe they have been discriminated against in their employment with UNC Pembroke on the basis of age, sex, race, color, creed, national origin, political affiliation or disability may file a grievance by either choosing to follow the University’s internal grievance procedure with an appeal to the Office of Administrative Hearings or to bypass the University’s internal grievance procedure and appeal directly to the Office of Administrative Hearings. The grievance must be filed in a time frame as specified according to whether it is submitted to the University or the Office of Administrative Hearings.

NOTE:  Under state law, individuals who file grievances alleging discrimination due to sexual orientation may not appeal the University’s FAD to the Office of Administrative Hearings.

Courses of Action:
a) Within 30 calendar days of the act or omission that is the basis for the grievance, an applicant or employee may appeal through the UNCP Grievance Committee.
b) Within 30 calendar days of the act or omission that is the basis for the grievance, an applicant or employee may appeal directly to the Office of Administrative Hearings.  [12]
Employees who file grievances alleging discrimination due to age, sex, race, color, creed, national origin, political affiliation or disability may choose to process their grievance either through the University internal grievance procedure, with an appeal to the Office of Administrative Hearings.  Or the employee may choose to bypass the University internal grievance procedure and appeal directly to the Office of Administrative Hearings.
UNIVERSITY RESPONSIBILITIES
In January of each even-numbered year, the University shall:
a) file its Grievance Procedure with the Office of State Personnel;
b) file for approval by the State Personnel Commission any modification(s) to the University Grievance Procedure prior to the procedure becoming effective;
c) submit a certified statement that no changes have been made to the Grievance Procedure since the last submission, if such is the case;
d) include in the Grievance Procedure the effective date of the procedure and the effective date of any changes in the procedure;
e) continuously evaluate the Grievance Procedure’s effectiveness in achieving the University’s goals through feedback received from grievant, supervisors, grievance Committee and the Office of State Personnel;
f) compile information on employee grievances semi-annually and as otherwise requested by the Office of State Personnel.
COMMUNICATION OF GRIEVANCE POLICY TO CAMPUS
This policy will be available in the Human Resources Office and will be made available to any person upon request. A copy of the policy will be available on the Human Resources website under Policies and Procedures, on the Business Affairs web page under Human Resources Policies and under the Chancellor’s Policies and Regulations website.  Each new employee will be advised of the existence of the policy in the new employee orientation.

All employees will be notified of grievance policy and procedure changes through staff email notifications.  All employees shall be notified no later than thirty (30) days prior to the effective date of the change.