SPA Grievance and Appeal

REG 05.25.2

Grievance
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Authority: Vice Chancellor for Finance and Business

History: First Issued: November 1, 2002. Last Revised: May 1, 2003. Additional History Information.

Additional References: SPA Employee Grievance Form

Contact for Info: Assistant Director for Employee Relations (919-515-6575).

1. SPA UNIVERSITY GRIEVANCE PROCEDURE

1.1. Purpose

University administration retains authority, as provided by law, to manage and direct its human resources. This includes the determination of workforce size, work assignments, hours of employment, promotion, demotion, transfer, or dismissal. Simultaneously, the University is committed to fair and equitable treatment of all employees. Therefore, the University has established this procedure for the fair, orderly, and prompt resolution of job related disputes that may arise between an SPA employee and anyone who is in a position of authority.

Employees, whether grievant, witness, panel member, or grievance assistant have the right to participate in this procedure free from interference, coercion, restraint, discrimination, or reprisal. Grievance procedures are not considered legal proceedings and attorneys are prohibited from attending any internal grievance proceeding.

1.2. Covered Employees

Any full-time or part-time SPA employee who has completed the probationary period may appeal a demotion, suspension or dismissal through the University's grievance procedure. SPA probationary employees are eligible to access the grievance procedure if alleging discrimination on the basis of sex, race, color, creed, age, political affiliation, religion, national origin, or disability, or if alleging the presence of misleading or inaccurate information in their personnel file.

1.3. Covered Actions

1.3.1. Appealable Actions

An SPA employee may utilize this procedure to appeal an action alleging:

a) a violation or misapplication of University policies;
b) a violation or misapplication of rules pertaining to employment in the respective department;
c) a violation or misapplication of applicable laws or regulations, including anti-discrimination laws, the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA);
d) a suspension without pay, demotion, or dismissal ;
e) inaccurate or misleading information in a personnel file; or
f) Unlawful Workplace Harassment (see separate procedure).

1.3.2. An SPA employee shall have access to the information contained in his/her personnel file, with the exception of letters of reference solicited prior to employment, or information concerning a medical disability, mental or physical, that a prudent physician would not divulge to a patient. If an employee feels that information in his/her personnel file is inaccurate or misleading, he/she may file a grievance. This includes written warnings.

1.3.3. An SPA employee must be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of an internal grievance, without loss of pay, vacation leave or other time credits. Prior supervisory approval is required. Employees are not allotted time off from regular duties for preparation of external grievances or complaints unless using annual leave which has been approved by supervision.

1.4. Requirements

1.4.1. Appeals

To appeal a disciplinary action or file a grievance, the SPA employee must contact the Division of Human Resources and complete an SPA Employee Grievance Form within the timeframe specified below. Additionally, the University's final written decision shall be issued within the specified timeframe unless both parties mutually agree to additional time.

1.4.1a) Basis: Suspension, Demotion, Dismissal
- Number of days to file: 15 workdays
- Number of days for decision: 90 calendar days

1.4.1b) Basis: Unlawful Workplace Harassment
- Number of days to file: 30 calendar days
- Number of days for decision: 60 calendar days

1.4.1c) Basis: All Other Applicable Actions
- Number of days to file: 15 workdays
- Number of days for decision: 120 calendar days

1.4.2. Procedure

The grievant must complete and submit the entire grievance form, including Section C - Requested Resolution/Remedy, for the grievance to be processed. A Human Resources representative will then notify the department that a grievance has been filed and will oversee the steps of the grievance procedure as outlined in this policy.

1.4.3. Further Appeals

If the University's final written decision is not issued within the specified timeframes and no additional time has been agreed upon, the grievant may appeal to the Office of Administrative Hearings within 30 calendar days after the applicable deadline.

1.5. Grievance Assistant

1.5.1. Each party in the grievance may elect to ask a fellow employee of his or her choice to assist or support by accompanying them to any meetings or hearing held in response to the formal grievance. The assistant must be an NC State University employee who has no active disciplinary action on file and has completed training provided by Human Resources. The assistant is permitted to serve only in an advisory capacity, not as an advocate or spokesperson for the grievant or management. The grievance assistant may not serve as a witness in the case.

1.5.2. An employee may volunteer to be a grievance assistant no more than twice in a calendar year. The assistant must obtain prior management approval for any time away from work while functioning in this capacity.

1.5.3. Management should make every effort to accommodate a request by an employee to serve as a grievance assistant. However, if allowing this would interfere with the proper performance of the employee's regular job responsibilities, management does have the right to deny this request. Human Resources will provide training for employees volunteering to be grievance assistants. A list of trained volunteers will be maintained by Human Resources and provided to the parties in a grievance as requested.

1.6. Confidentiality

The University recognizes the confidential relationship between the grievance assistant and the parties to the grievance. Information shared during the investigation and proceedings of a grievance, written or spoken, shall be kept confidential and shall not be divulged except as required by law. Violations of that confidential relationship are considered unacceptable personal conduct. Employees violating that confidence may be subject to disciplinary action.

1.7. Process

Once a grievance has been properly filed, the following 3-step process applies.

1.7.1. Step 1 - Waiver

Step 1 may be waived only if the grievant is alleging discrimination.

1.7.2. Step 1 - designee

Normally, the supervisor is designated to conduct the Step 1 review. Where the grievance does not fall within the administrative or decision-making authority of the immediate supervisor, or where other factors preclude assignments to the immediate supervisor, Human Resources shall, within 48 hours of receipt of the grievance, refer the grievance to the lowest level supervisor with administrative or decision-making authority over the subject matter of the grievance. The employee must be notified and given the basis for the referral.

1.7.2a) Meeting between grievant and Step 1 designee

The Step 1 designee shall meet with the grievant within five workdays of the date the department receives written notification of the grievance from Human Resources. The purpose of this meeting is to attempt to resolve the grievance without third party involvement.

1.7.2b) Grievant notification of Step 1 ruling

The Step 1 designee is to provide the grievant with a written ruling within five workdays of the date of the meeting between the grievant and designee. If the grievant is still reporting to work, the written ruling shall be hand-delivered to him or her. Otherwise, the written ruling shall be sent to the grievant's home via overnight or certified mail. If there is any need to extend the five workday deadline for a written ruling, the designee must notify the grievant in writing of the reason for the delay and the date the grievant will receive the written ruling. Copies of all correspondence shall be forwarded to Human Resources.

1.7.2c) Grievant satisfaction with Step 1

If the grievant is not satisfied with the Step 1 ruling, or fails to receive a ruling within the timeframe specified, he or she may proceed to Step 2. The grievant must notify Human Resources, in writing, within five workdays of receipt or attempted delivery by overnight or certified mail, of the Step 1 ruling, that he or she wants to proceed to Step 2. Failure to request Step 2 by the deadline will close the grievance.

1.7.3. Step 2

1.7.3a) The grievant may request in writing, to proceed to Step 2 and have the grievance reviewed by the next level of management. The grievant must submit the appeal to Human Resources within five workdays of receipt or attempted delivery by overnight or certified mail, of the Step 1 ruling.

1.7.3b) Waiver of Step 2

In cases where the department head or director was involved in the Step 1 ruling, Step 2 may be waived if agreed to by both parties.

1.7.3c) Step 2 designee

Human Resources shall designate the next appropriate level of management that will be responsible for rendering a ruling at the conclusion of Step 2. The designee (normally the department head or director) will be provided with relevant information and instructions for carrying out Step 2. The designee is responsible for consulting with both parties and others as appropriate to gather all relevant information.

1.7.3d) Meeting between grievant and Step 2 designee

The Step 2 designee shall meet with the grievant within five workdays of written notification from Human Resources of the grievant's request to proceed to Step 2. The purpose of this meeting is to seek resolution of the issue to the satisfaction of both the employee and management. The designee must notify Human Resources of completion of the meeting by the end of the business day on which the meeting took place.

1.7.3e) Grievant notification of Step 2 ruling

(1) The Step 2 designee is to provide in writing to the grievant, supervisor, department head, and Human Resources his or her ruling, and, if applicable, any recommended solution(s) to the grievance within five workdays of the date of the meeting. If this is not possible, the Step 2 designee must submit a written request to Human Resources for an extension.

(2) If the recommendation(s) would involve an exception to University policy, the designee will consult with Human Resources before rendering a ruling.

(3) In the absence of appeal by the grievant, any recommendations provided in the ruling should be carried out within the period of time specified in the Step 2 ruling. Copies of all correspondence shall be forwarded to Human Resources.

(4) If the grievant is still reporting to work, the written ruling shall be hand-delivered to him or her. Otherwise, the written ruling shall be sent to the grievant's home via overnight or certified mail.

1.7.3f) Grievant satisfaction with Step 2

If the grievant is not satisfied with the Step 2 ruling or fails to receive a ruling within the timeframe specified, he or she may take the appeal to Step 3. The grievant must notify Human Resources, in writing, within five workdays of receipt or attempted delivery by overnight or certified mail, of the Step 2 ruling that he or she wants to proceed to Step 3. Failure to request Step 3 by the deadline will close the grievance.

1.7.4. Step 3

1.7.4a) The grievant may request in writing to proceed to Step 3 and have the grievance heard before a Grievance Review Panel. The grievant must submit the appeal within five workdays of receipt or attempted delivery by overnight or certified mail, of the Step 2 ruling.

1.7.4b) Pre-hearing Activities

(1) Panel Selection
The University maintains diverse standing panels of specially trained employees to hear grievances. Each panel consists of a pool of supervisors and non-supervisors, from which three individuals are selected for each panel hearing by the following means:

(a) Human Resources will assign one of the University's standing SPA Grievance and Dispute panels. The panel is selected by the Human Resources Grievance Coordinator based on panel availability, mix of college/unit representatives, and other factors.

(2) Summary information

(a) Upon notification from Human Resources, the grievant must provide the panel with a specific written summary of all allegations and relevant documentation and a list of any witnesses who can substantiate the allegations or documentation. This summary should be forwarded to Human Resources within five workdays.

(b) The management representative must also prepare a specific written summary providing any relevant documentation to substantiate the actions which are being appealed by the grievant and include a list of any witnesses to be called. This summary should be forwarded to Human Resources within the five work days timeframe as well.

(c) The Human Resources Grievance Coordinator will send written notice to the grievant and management representative advising them of the panel members and requesting additional information if necessary.

(d) The Human Resources Grievance Coordinator will schedule and attend the initial panel meeting. The Grievance Coordinator will also attend any subsequent pre-hearing panel meetings as well as post-hearing meetings and deliberations in order to clarify any issues or questions the panel may have with regards to policies and/or procedures.

(3) Availability of opposing party information

(a) The Human Resources Grievance Coordinator will provide each party with a copy of the written summary provided by the opposing party. Additional information that either party wants to make available to the panel should be presented to Human Resources at least one week prior to the hearing date. Copies of that information will be made available to the opposing party. Any request for an exception to the one-week deadline will be considered and decided by the panel.

(b) The panel may request, in writing, the presence of any additional witnesses and may refuse to call any witness to speak if they determine the individual's testimony has no significant bearing on the case. In the event a panel questions the relevancy of the testimony of a potential witness, the grievant or management representative requesting the witness will be asked to provide the panel with a written justification outlining the nature and relevancy of the proposed testimony. Following a review of the written justification, the panel will advise the Human Resources Grievance Coordinator as to whether or not the witness will be allowed to appear.

(c) Management will make arrangements for any University employee allowed by the panel to appear at the hearing. If a witness is allowed to testify at the hearing and he or she is not a University employee, it will be the responsibility of the requesting party to arrange for the witness to appear.

(4) Time and place of Hearings

(a) The Human Resources Grievance Coordinator will determine the time and place of hearings and will notify the employee and management representative when and where to appear.

(b) If the grievant is unable to attend the hearing on the scheduled date due to circumstances beyond his/her control, Human Resources must be notified and an alternate date will be scheduled. If the grievant fails or refuses to appear at the hearing, or fails to provide sufficient reasons for non-attendance, the appeal will be closed.

(c) The panel has the authority to place additional requirements upon the parties as long as they do not conflict with other provisions of this policy.

(5) Hearings

(a) Attendance at a hearing is limited to the panel, Human Resources representative(s), the grievant and a grievance assistant, management representative(s) and a grievance assistant, a Public Safety representative, and witnesses. Requests for exceptions to this provision should be addressed to Human Resources in writing no later than one week prior to the panel hearing. Witnesses may only be in the hearing room while testifying.

(b) The panel will tape record the proceedings and, at the conclusion of their deliberations, will forward the tapes to University Counsel for storage. Either party interested in obtaining a copy of tapes must contact University Counsel for information regarding access to the audiotapes. Tapes will not be forwarded to University Counsel until after the panel has concluded all deliberations and forwarded their recommendations to the appropriate party.

(c) The hearing will begin with an opening statement from the Panel Chairperson, followed by opening statements from the grievant and the management representative. Opening statements are limited to 15 minutes. Following opening statements, witnesses (if any) may be called to testify. Both the grievant and the management representative have the right to question each witness. The panel members may ask questions of the witnesses, grievant, and management representative(s) at any time. The hearing will end with closing statements, limited to 15 minutes each, from the grievant, management representative, and Panel Chairperson.

(6) Post-hearing Activities

(a) The Human Resources grievance coordinator will attend all panel meetings and deliberations in order to clarify any issues or points of reference for the panel. The coordinator will assist the panel in the preparation of the panel report.

(b) The Panel Chairperson or grievance coordinator will submit the panel's conclusions and recommendations in a final written report to the associate vice chancellor for Human Resources for review within five workdays following the hearing. Each panel member will sign the report. The purpose of this review is to ensure that recommendations are in compliance with state and University policy. In the event there is a policy concern, the associate vice chancellor for Human Resources, or designee, will immediately contact the grievance coordinator or the Panel Chairperson.

(c) The associate vice chancellor for Human Resources or designee, in turn, will forward the final written report within three workdays to the vice chancellor for Finance and Business or his designee.

(d) Final written decisions will be rendered to the grievant and management representative by the vice chancellor for Finance and Business or his designee within 10 workdays of receipt of the panel's recommendations. Human Resources will receive copies of all final written decisions.

(7) Further appeals

If the grievant is not satisfied with the University's final written decision, he or she may appeal directly to the Office of Administrative Hearings and the State Personnel Commission:

- within 30 calendar days following the close of the decision period, or
- within 30 calendar days following receipt or attempted delivery by overnight or certified mail of the University's final written decision.

2. SPA UNLAWFUL WORKPLACE HARASSMENT PROCEDURE

2.1. Purpose

The policy of NC State University is that no employee may engage in speech or conduct that is defined as unlawful workplace harassment as indicated below. All employees, outside vendors and contractors are guaranteed the right to work in an environment at NC State free from unlawful workplace harassment and retaliation. Any interference, coercion, restraint or reprisal of any person complaining of unlawful workplace harassment is prohibited.

2.2. Definitions

2.2.1. Unlawful Workplace Harassment is defined as unwelcome or unsolicited speech or conduct based upon race, sex, creed, religion, national origin, age, color, or disability as defined by G.S. 168A-3 that creates a hostile work environment or circumstances involving quid pro quo. In addition to these protected classes, veteran status is protected by Federal Law, and it is the internal policy of North Carolina State University to prohibit harassment on the basis of sexual orientation.

2.2.2. Hostile Work Environment is defined as an environment that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstances, including the frequency of the alleged harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.

2.2.3. Quid Pro Quo is defined as harassment consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when:

2.2.3a. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

2.2.3b. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

2.2.4. Retaliation is defined as adverse action taken because of opposition to unlawful workplace harassment.

2.3. Covered Employees

2.3.1. Former employee, full-time or part-time SPA employee with either a permanent, probationary, trainee, time-limited, or temporary appointment. Note: Former and current SPA employees must proceed through the University Unlawful Workplace Harassment grievance procedures prior to appealing to the Office of Administrative Hearings and the State Personnel Commission. Applicants, while not covered under the State statute, are covered under other State and Federal Civil Rights Acts.

2.4. Requirements

2.4.1. An SPA employee alleging unlawful workplace harassment must contact the Division of Human Resources within 30 calendar days of the alleged harassing action and complete an SPA Employee Grievance Form to file a grievance. A Human Resources representative will then notify the department that a grievance has been filed and will oversee the steps of the grievance procedure as outlined herein.

2.4.2. SPA employees have the right to bypass any step in the grievance process involving review of or decisions by the alleged harasser.

2.4.3. Alleged harassers are not eligible to conduct any step in the grievance process.

2.5. Step 1

2.5.1. A prompt and impartial investigation by management of the alleged workplace harassment shall take place immediately upon written notification of the grievance by Human Resources or the grievant. Human Resources shall designate the level of management responsible for conducting the Step 1 review and rendering the ruling, and provide the designee with relevant information and procedural instructions.

2.5.2. The designee will consult with both sides and others, as appropriate, for the purpose of gathering all relevant information.

2.5.3. The designee is to provide the aggrieved employee with a written ruling stating any remedial action that will be taken within ten workdays of the date the department was notified of the grievance.

2.5.4. If the grievant is not satisfied with the Step 1 ruling, or fails to receive a ruling within the timeframe specified above, he or she may appeal to Step 2. The grievant must notify Human Resources, in writing, within five workdays of receipt or attempted delivery by overnight or certified mail of the Step 1 ruling that he or she wants to proceed to Step 2. Failure to request Step 2 by the deadline will close the grievance.

2.6. Step 2

2.6.1. An appeal to Step 2 panel must include a specific written summary of all allegations and relevant documentation and a list of any witnesses who can substantiate the allegations or documentation.

2.6.2. In Step 2, a standing Unlawful Workplace Harassment Review Panel will hear the grievance. The panel consists of supervisors and non-supervisors. The hearing shall take place within 30 calendar days of the Step 1 decision.

2.6.3. Post-hearing Activities

2.6.3a) The Human Resources grievance coordinator will attend all panel meetings and deliberations in order to clarify any issues or points of reference for the panel. The coordinator will assist the panel in the preparation of the panel report.

2.6.3b) The Panel Chairperson or grievance coordinator will submit the panels written report to the associate vice chancellor for Human Resources for review within five workdays following the hearing. Each panel member will sign the report. The purpose of this review is to ensure that recommendations are in compliance with state and University policy. In the event there is a policy concern, the associate vice chancellor for Human Resources, or designee, will immediately contact the grievance coordinator or the Panel Chairperson.

2.6.3c) The associate vice chancellor for Human Resources or designee, in turn, will forward the final report within three work- days to the vice chancellor for Finance and Business or his designee.

2.6.3d) The University's final written decision will be rendered to the grievant and management representative by the vice chancellor for Finance and Business or his designee within 5 workdays of receipt of the panel's recommendations. Human Resources will receive copies of all final decisions.

2.7. Further appeals

2.7.1. If the grievant is not satisfied with the University's final written decision, he or she may appeal directly to the Office of Administrative Hearings and the State Personnel Commission:

- within 30 calendar days following the close of the response period
- within 30 calendar days following receipt or attempted delivery by overnight or certified mail of the University's final written decision.

2.7.2. Should the University issue a final written decision to the grievant prior to the close of the allotted 60-day investigation period, the University shall waive in writing its right to the remainder of the 60 day period. To file an appeal within the waived period, the grievant will acknowledge in writing the University's waiver.

2.7.3. A grievant may file a simultaneous complaint under Title VII of the Civil Rights Act with the Equal Employment Opportunity Commission (EEOC).

2.8. Policy Review

2.8.1. The university will evaluate its grievance procedures on an annual basis.

3. APPEALS TO THE STATE PERSONNEL COMMISSION

3.1. Purpose

If an SPA employee is not satisfied with the final University decision on a grievance, or is alleging discrimination, the employee may appeal to the State Personnel Commission.

3.2. Covered Employees

3.2.1. Career Employees:

Effective July 1, 1996, career status will be accorded to every state employee who is in a permanent position appointment subject to the State Personnel Act (SPA) and has been continuously employed by the State of North Carolina in an SPA position for the immediate 24 preceding months. In order to appeal a final University grievance decision to the State Personnel Commission, an employee must have attained career status at the time of the act, grievance or employment practice that is the basis for the grievance occurs.

3.2.2. Probationary Employees

This appeal is available to SPA probationary employees who allege:

- unlawful employment discrimination or
- the presence of misleading or inaccurate information in their personnel files.

3.3. Requirements

3.3.1. Eligible employees appealing to the State Personnel Commission must do so within 30 calendar days from receipt or attempted delivery by overnight or certified or certified mail, of the University's final decision. Employees alleging discrimination may appeal directly to the State Personnel Commission should they choose not to utilize the University's Grievance and Appeals Procedure. Grievances that do not allege discrimination must follow the University's grievance procedure.

3.3.2. All appeals to the State Personnel Commission must be filed with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714; phone (919) 733-2698.

3.3.3. Grievances filed on an untimely basis will be dismissed. Allegations of discrimination raised more than 30 calendar days after receipt of notice of the occurrence of the alleged discriminatory act will be dismissed as untimely.

3.3.4. Employees should be granted necessary and reasonable time for participation in contested case hearings and other administrative proceedings outside the agency in connection with employment upon request of the employee's supervisor without loss of pay, vacation leave or other time credits. Management may require prior official notice of the scheduling of any such proceedings and documentation by the presiding official of the time the employee spent in attendance at these administrative proceedings.

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