Initially approved by the Board of Trustees: 3-18-86
Revised by the Executive Council: February 21, 2011
Administering Office: Department of Human Resources
I. POLICY STATEMENT
It is Western Carolina University’s (the “University”) policy to provide a means of communication between supervisors and non-faculty employees exempt from the State Personnel Act (“EPA”) and to establish principles of administration to insure a prompt, orderly and fair response to an EPA employee’s grievance.
This policy and associated procedures are established in accordance with Section 611
of the Code of the University of North Carolina (the “Code”) to provide a means to
hear the grievances of EPA employees of the University who occupy positions covered
by the provisions of the University of North Carolina Policy #300.2.1, “Employees
Exempt from the State Personnel Act,” and Policy #300.1.1, “Senior Academic and Administrative
Officers” (hereinafter referred to as “UNC policy”).
II. SCOPE OF REVIEW/GROUNDS FOR GRIEVANCE
Employees in covered positions may secure review of decisions concerning discharge for cause or other disciplinary action, or review concerning the interpretation and application of any provision of UNC Policy; provided, however, that reviews concerning discontinuations, expiration of term appointments, or terminations of employment because of financial exigency or program curtailment or elimination may be brought only upon allegations of violations of applicable notice requirements or violations of any provision of UNC Policy concerning equal employment opportunity or protected activity. Covered persons may seek review of personnel actions based on allegations that:
(1) For Senior Academic and Administrative Officers defined only in UNC Policy 300.1.1 I.B., for discontinuations, expiration of term appointments, or terminations of employment with notice, such review may be sought only upon allegations of violations of applicable notice requirements set out in policies 300.1.1. III.B. 1., 2., and 3. of the UNC Policy Manual; and
(2) For other employees exempt from the State Personnel Act, as described only in UNC Policy 300.2.1, for discontinuations, expiration of term appointments, or terminations of employment with notice, such review may be sought only upon allegations of violations of applicable notice requirements set out in policies 300.2.1 III. A., B., and C. of the UNC Policy Manual; or
(B) Equal Employment Opportunity and Protected Activity
(1) For the Senior Academic and Administrative Officers defined in sub-section (1)
above, for violations of any provision of sub-sections III.D. or E. of Policy 300.1.1
of the UNC Policy Manual, and
(2) For the other employees exempt from the State Personnel Act defined directly above in sub-section (2), for violations of any provision of sections V. or VI. of Policy 300.2.1 of the UNC Policy Manual; or
(C) Discharge for Cause, Other Discipline, Policy Interpretation/Application
(1) For the Senior Academic and Administrative Officers defined in sub-section (1) above, for discharge for cause or other disciplinary action, or for interpretation and application of a policy provision, all pursuant to and limited by policy 300.1.1 III.C. of the UNC Policy Manual, and
(2) For the other employees exempt from the State Personnel Act defined above in sub-section (2), for discharge for cause or other disciplinary action, or for interpretation and application of a policy provision, all pursuant to and limited by policy 300.2.1 IV. of the UNC Policy Manual; or except that for both groups such review may be sought only if the employee alleges the discharge, discipline, or policy interpretation or application was illegal or violated a policy of the Board of Governors.
III. RETALIATION PROHIBITED
This policy seeks to encourage employees to express freely, responsibly, and in an
orderly way their complaints concerning subjects covered under this Policy. Any act
by a University employee, officer or agent of reprisal, interference, restraint, penalty,
discrimination, coercion or harassment--overtly or covertly--against an employee for
responsibly using the Policy and its procedures interferes with free expression and
openness. Accordingly, such acts violate this Policy and require appropriate and prompt
IV. INFORMAL RESOLUTION
The University encourages informal means of resolution prior to the use of these procedures. Employees and supervisors, as well as individuals in the administrative line such as department chairs, deans, etc., are encouraged to discuss matters fully and freely and attempt resolution of employment disputes subject to these policies and procedures. Such discussions are considered confidential.
V. PROCEDURES FOR FILING GRIEVANCES
An employee having a grievable issue under this policy must file a grievance within fourteen (14) calendar days from the date of the situation causing the grievance. If the grievance is not filed within the allowed time period, the employee will have no further right to an internal grievance procedure. To file a grievance under these procedures, an employee must provide a signed and dated written statement to the Director of Human Resources within the time limit stated above. This statement must include the following:
1. If the grievance concerns discontinuation with notice, the applicable notice requirements that were violated, or the applicable provisions of the equal employment opportunity or protected activity policies that were violated; and
2. If the grievance concerns discharge for cause, whether the employee contests the factual basis or the lawfulness of the proposed personnel action; and
3. The specific act or actions complained of, and the date, time and place of the occurrence; and
4. Information concerning any informal attempts made to resolve the matter; and
5. The provision of the UNC policy believed to have been violated, if applicable; and
6. Description of evidence which supports the employee’s argument; and
7. The names of possible witnesses, if any; and
8. The specific corrective action requested by the employee; and
9. Information concerning any informal attempts made with the immediate supervisor to resolve the matter.
If the grievance includes allegations involving unlawful discrimination covered under University Policy #53, the Director of Equal Opportunity and Diversity Programs will first conduct a preliminary review and/or investigation of those aspects of the grievance. During this time the formal grievance process as it pertains to this policy will be delayed until such time as the Policy #53 investigation is completed.
A. Two Step Grievance Process
The University employs a two-step grievance process for grievances that fall within the scope of this policy and are considered timely. Step One of the grievance process involves a review within the chain of command in management, while Step Two consists of a hearing before a grievance committee.
(1) Step One – Administrative Consideration
After the Director of Human Resources has reviewed the grievance statement and determined that it alleges a grievable matter, the grievance will proceed to Step One, which is a review by the appropriate divisional manager, (i.e., Vice Chancellor, Provost, CIO, Chief of Staff/Vice Chancellor for Operations, Director of Athletics (hereinafter referred to as “Divisional Manager”). In the case of a grievance request on the basis of discharge for cause, the grievance request shall move directly to Step Two of the grievance process. If the employee has already met with the Divisional Manager in an effort to resolve the concern informally – or if this person is alleged to have engaged in prohibited discrimination against the employee – the grievance will proceed directly to Step Two.
The Divisional Manager shall meet with the employee to discuss the matter as soon as is practicable. The purpose of the meeting is to attempt to resolve the issue to the mutual satisfaction of the employee and management. If the employee’s immediate supervisor is the Chancellor, the Chancellor may choose to meet with the employee or immediately refer the grievance to the EPA Administrative Grievance Committee (hereinafter referred to as “Grievance Committee”). The Divisional Manager is responsible for fully investigating the employee’s accusations in any manner that may be deemed appropriate.
Within ten (10) calendar days after the meeting with the employee, the Divisional
Manager shall deliver to the employee a Step One written response, which shall be
copied to the Director of Human Resources. Along with the written response, the employee
shall also receive a copy of the University grievance procedure and appeal rights.
If the employee is satisfied with the Step One written ruling, the grievance will
be administratively closed.
(2) Step Two - Appeal to the Grievance Committee
If the Step One discussions and subsequent decision are not satisfactory, or if an employee fails to receive a response within the designated ten (10) calendar days, the matter may be appealed to the Grievance Committee. Any request for a hearing shall be filed with the Director of Human Resources within ten (10) calendar days after receipt of the Step One decision or the expiration of the Step One time limit for response. If no hearing request is filed within this period, the employee has no further right to an internal grievance procedure.
The hearing request shall be written and shall set forth the nature of the grievance, against whom the grievance is directed, the employee’s specific grounds for requesting a hearing, and the identification of witnesses expected to testify. Grounds for a hearing request must be in accordance with Section II of this policy.
(a) Formation of the EPA Administrative Grievance Committee
Upon receipt of the hearing request, the Director of Human Resources will form a Grievance Committee. The Grievance Committee will consist of a five-person committee selected by the Director of Human Resources that will consist of both SPA and EPA employees, including both supervisory and non-supervisory. There will be no representation from the employee’s respective division.
(b) Grievance Committee Hearing
The issues to be heard are limited to those raised by the written hearing request. The Chair of the Grievance Committee, selected by the committee membership, has the authority to reject evidence that is redundant or has no relevance to the matters at issue. Hearings are considered to be informal and closed to the public. Attorneys are not permitted to participate at the hearing; however, the employee may select one person other than an attorney to attend as an observer. The Director of Human Resources shall provide technical assistance during the grievance hearing, but will not have any decision making authority.
The employee shall present his/her evidence first. The employee has the burden of proof, and the Grievance Committee shall evaluate evidence based upon a preponderance of evidence standard. The immediate supervisor or other appropriate administrator shall then have the opportunity to respond. Cross examination and rebuttal may be allowed at the discretion of the Chair. The Grievance Committee may directly question either party or any witness. The Chair shall ensure that a record of the hearing is made. Upon request, a copy of the record shall be furnished to the employee at a reasonable cost.
(c) Grievance Committee’s Recommendation
Following the presentation of the evidence, the Grievance Committee shall meet in closed session to consider the grievance. In reaching decisions on which its written recommendations to the Chancellor shall be based, the Grievance Committee shall consider only the evidence presented at the hearing. The Grievance Committee shall make its written recommendation to the Chancellor within ten (10) calendar days after the hearing concludes.
(d) Chancellor’s Decision
The Grievance Committee’s recommendation is not binding upon the Chancellor and is
only advisory. The Chancellor shall inform the employee, the immediate supervisor,
the appropriate Divisional Manager, and the Director of Human Resources of his/her
decision in writing in a timely fashion.
VI. APPEAL TO THE BOARD OF TRUSTEES
If the Chancellor concurs in a recommendation of the Grievance Committee that is favorable to the employee, the Chancellor’s decision shall be final. If the Chancellor either declines to accept a Grievance Committee’s recommendation that is favorable to the employee or concurs in a Grievance Committee recommendation that is unfavorable to the employee, the employee may appeal within fourteen (14) calendar days after receiving the Chancellor’s written decision, by filing with the Chancellor for transmission of the Board of Trustees written notice of appeal, including a brief statement of the basis for the appeal, by certified mail, return receipt requested, or by another means that provides proof of delivery, and alleges as set out in sub-section (1)(b) of Section 611 of the Code. The decision of the Board of Trustees is final with no further appeal.