Faculty Grievance Policy and Procedure

5.8  FACULTY GRIEVANCE POLICY AND PROCEDURE 

5.8.1  Definitions    A grievance is a complaint made by a member of the faculty concerning a decision, action, or lack of action by a person or group of persons acting in an official capacity, which directly and adversely affects the professional or personal well-being of the grievant and which can be corrected by the University.  A grievant is a member of the faculty who has made a complaint that constitutes a grievance.

5.8.2  Coverage    Any full-time or part-time member of the University teaching faculty is covered under this grievance policy.

5.8.3  Non-grievable Actions    Any grievances that satisfy the definition in §4.9.1 but are dealt with by their own specific policies and procedures, including an appeal process,  as outlined elsewhere in the Handbook, are considered non-grievable actions.  Therefore, excluded matters include the following:

.1  non-reappointment of non-tenured faculty (see §3.17);

.2  decisions regarding the awarding or withholding of tenure (see §7);

.3  actions of dismissal of faculty for cause or financial exigency (see §4.1 – 4.2);

.4  actions awarding or withholding promotions (see §7);

.5  any action related to evaluation of performance or salary adjustment (see §§6.1 – 6.8);

.6   disciplinary action taken as a consequence of a determination of racial, sexual, or other forms of discriminatory actions (see §5.3.2);

.7   violations of university policy by individual faculty members (see §4.3).

5.8.4  Bias Offense and Incident Reporting Procedure    The Bias Offense and Incident Reporting Policy has been established to help ensure a safe and welcoming working and educational environment for all members of the University of Mary Washington community.  Cases involving alleged acts of bias should be pursued through this procedure and not the grievance policy and procedure.  The University considers acts of bias on the basis of race, color, religion, disability, national origin, political affiliation, marital status, sexual orientation, gender, veteran status, or age to be unacceptable and antithetical to its commitments to diversity, inclusiveness and the right of every individual to be treated with dignity and respect.  See the policy for additional details about the Bias Offense and Incident Reporting Procedure.

5.8.5  Pre-Faculty Appeals and Grievance Committee Procedure    The faculty member should first make every effort to resolve the potential grievance directly with the individual(s) involved.

5.8.6  First Filing of the Grievance    All grievances shall be presented as soon as possible and in no event later than ten (10) days after the occurrence of the action or event causing the grievance:

.1  A faculty member with a grievance against another faculty member within his or her department shall present the grievance to the department chair.

.2  A faculty member with a grievance against another faculty member not in his or her depart­ment, with a grievance against his or her department chair, or with a policy or practice of the department shall present the grievance to the college dean.

.3  A faculty member with a grievance against the college dean or another University administrator shall present the grievance to the Provost.

.4  A faculty member with a grievance against a college policy or procedure or the application thereof shall present the grievance to the Provost.  A faculty member with a grievance against the Provost, or a University policy or procedure or the application thereof shall present the grievance to the President.

5.8.7  Attempt at Informal Resolution    The individual receiving the grievance shall seek to mediate a prompt and satisfactory solution of the grievance.  If an allegation of discrimination or harassment is involved, the matter will be immediately referred to the University AA/EEO Officer.  Within ten (10) business days of receiving the grievance, the individual receiving it will schedule a first meeting with the grievant to initiate a process of informal resolution. This meeting is required. Within fifteen (15) business days from the date of that initial meeting, the grievance will either be resolved or the person receiving the grievance will determine that it cannot be resolved through informal means. In the event that informal resolution fails, the person receiving the grievance advises the grievant regarding the next step in the process (§5.8.8).

5.8.8  Formal Procedures to Hear the Grievance    If the grievance of a faculty member is not resolved through the informal procedure, the faculty member may, within ten (10) business days thereafter, pursue a formal grievance procedure and request a hearing by the University Faculty Appeals and Grievance Committee, a standing committee of the faculty whose charge is to investigate the grievance and recommend to the Provost (or President as per §5.8.9) a resolution.

5.8.9  Formal Request  to the University Faculty Appeals and Grievance Committee    A faculty member requesting a hearing by the University Faculty Appeals and Grievance Committee shall present a written statement of charges to the Provost; if the grievance is against the Provost or a University policy, decision, action, then the statement of charges shall be presented to the President.

5.8.10  Statement of Charges, Preparation and Distribution    The written statement of charges submitted by the faculty member shall con­tain the following informa­tion and material in a form whereby multiple, legible copies may be repro­duced:

•   A clear statement of facts upon which the grievance is based, including an explanation of how the faculty member alleges he or she has been adversely affected and the specific relief requested; note that the Faculty Handbook defines a good faith allegation as follows: “a good faith allegation is one made with the honest belief that a violation may have occurred. An allegation is not made in good faith ‘if it is made with reckless disregard for or willful ignorance of facts that would disprove the allegation.’It is misconduct to make an allegation “with reckless disregard for or willful ignorance of facts that would disprove the allegation.” (See sections 4.8.2 and 4.8.3);

•   An identification of the person(s) or the college or University policy or procedure consid­ered responsible for the alleged adverse condition, action, or inaction upon which the grievance is based and an explanation of why the person(s) is considered responsible or why the college or University policy or procedure is considered improper;

•   A copy of any pertinent Board of Visitors or college or University policies or regula­tions, Commonwealth statutes, contractual agreements or other documents of custom and practice upon which the grievant relies; and

•  A written statement prepared by each witness that the grievant would expect to call for the hearing in support of the grievance that summarizes the information or evidence that the witness would testify to at a hearing.  The grievant shall also identify any witnesses believed to have relevant information who have refused to prepare a written statement or to testify at a hearing and the nature of the relevant information at issue.

5.8.11  Composition of the University Faculty Appeals and Grievance Committee (UFAGC)     The formal hearing shall be conducted by the UFAGC, a standing committee of the University faculty.

5.8.11.1  Prior to the Provost turning the formal statement of charges over to the UFAGC, both the accused faculty member (or unit representative) and the grievant will have one opportunity to challenge the membership of the UFAGC that will hear the grievance.  The accused faculty member (or unit representative) and the grievant will each be allowed one challenge to the existing composition of the UFAGC without stated cause.  This is the only time at which committee membership may be challenged.

5.8.11.2  At this time (prior to the Provost disseminating the statement of charges), the recusal of any member(s) of the Committee should also be determined. Any member of the University UFAGC should remove him or herself from the case if she or he has or could be perceived to have a bias or a conflict of interest.  To prevent the perception of bias or conflict of interest, any member will step down at the request of a majority of the members of the UFAGC who have not been removed by a challenge.

5.8.11.3  The Committee must have at least five members to conduct the formal investigation. Replacement of Committee members will be determined by the remaining members from the pool of elected “back-up members.”  When UFOC conducts (annual staggered-term) elections for the UFAGC membership, it will ensure the election of both five active members and five back-up members. Should the existing chair of the Committee be removed through challenge or recusal, the final five members shall elect a new chair for the purposes of the formal hearing.

5.8.12  Procedure of the formal Committee Hearing and Distribution of Results

The chair of UFAGC shall prepare and distribute a complete copy of the statement of charges to each member of the committee and to the Provost (or President per 5.8.9).

5.8.12.1   Confidentiality    It is expected that confidentiality will be maintained in the conduct of the formal committee deliberations. The mere suspicion of wrongdoing, even if totally unjustified, is potentially damaging. Information concerning any grievance proceedings must be held in strictest confidence and should be available only to those with a right or a need to know.

5.8.12.2  Preliminary Review and Decision    The UFAGC shall, within ten (10) business days after receipt of the statement of charges, review the charges and determine whether or not the Committee will request a reply to the statement of charges.  If the Committee determines by a majority vote that the charges (a) do not constitute a grievance, (b) are frivolous and/or without merit, (c) do not involve actions taken by a person in an official capacity, or (d) cannot be addressed by an official university policy or procedural remedy, then the chair of the Committee shall advise the grievant in writing of this finding with a copy provided to the Provost (or the President as per §5.8.9). The action of the Committee at this stage is final.

5.8.12.3  Request for a Reply to Statement of Charges    The UFAGC requests a reply to the statement of changes for one of two reasons: (1) because additional information is required to decide if the matter is grievable, or (2) because the Committee determined that the matter is grievable and a reply to the statement of charges is called for. If the UFAGC requests a reply to the statement of charges, the chair shall advise the grievant and shall provide a complete copy of the statement of charges to each person against whom the com­plaint is made.  If the grievance is against a departmental policy, decision, or action, rather than against the action of an individual, the department chair shall represent the department against which the grievance is made.  If the grievance is against a College or University policy, decision, or action, rather than against the action of an individual, the appropriate dean, or the Provost shall represent the relevant institutional unit against which the grievance is made.

5.8.12.4  Reply to Statement of Charges    Upon receipt of the statement of charges, the person(s) against whom or representing the unit against which the grievance is lodged shall, if he or she wishes to reply, have twenty (20) business days to present a response to the charges to the chair of the UFAGC.  The response must be in writing, and shall include:

•  A full statement of the position taken by the person(s)/institutional units against whom the grievance has been lodged with respect to the charge;

•   Any commentary the cited party(ies) may wish to offer concerning any of the documents contained in the statement of charges submitted by the grievant and any pertinent documents or materials which the respondent(s) relies upon; and

•   A written statement prepared by each witness that the respondent would expect to call for the hearing in response to the grievance that summarizes the information or evidence that the witness would testify to at a hearing.  The respondent may also identify any witnesses believed to have relevant information who have refused to prepare a written statement or to testify at a hearing and the nature of the relevant information at issue.

Within five (5) business days after receipt of the response to the statement of charges from the party(ies) against whom the grievance has been lodged, the chair of the Committee shall have prepared and distributed to the grievant and to each member of the UFAGC a complete copy of the response.

5.8.12.5  Review of Reply to Statement of Charges, and Decision    Within ten (10) business days of the distribution of the reply to the statement of charges, the Committee will either make a final decision or determine that a hearing should be held. Should all members of the UFAGC, after reading the statement of charges and the response thereto, determine that there are sufficient grounds to recommend a remedy or a correction without conducting a full hearing, then the Committee shall by formal resolution offer its recommendation for the remedy or correction that should be taken to address the grievance.  (The Committee may also recommend that no corrective action be taken.)  The Committee’s recommendation shall be promptly transmitted, in writing, to the parties concerned and to the Provost (or President as per §5.8.9), and the action shall be final. If the Committee determines that a hearing should be held, the chair of the UFAGC shall schedule a hearing to begin no later than thirty (30) business days after the date that the Committee decided that a hearing should be held.

5.8.13  Pre-Hearing Conference     At least ten (10) business day before the Hearing, the UFAGC will hold, with all parties present, a pre-hearing conference to define the issues involved and to resolve procedural matters for the Hearing.  For instance, the Committee will inform both parties of their option to request the right to call witnesses for the Hearing.  Such witnesses will be expected to submit written statements to the Committee as part of the request.  The Committee may also choose to call witnesses based on its deliberations of the facts to this point.

5.8.14  Procedure for Final Hearing    The hearing shall be conducted according to the following procedures:

5.8.14.1  Attendees    The hearing shall be private, with only the parties involved, witnesses, counsel, advisers, designated observers, and members of the Committee present, except that, with mutual agreement by the grievant and the party(ies) against whom the grievance is lodged, the hearing may be public.

5.8.14.2  Record of Hearing    The full and complete Hearing shall be recorded by and for the Committee and all recordings shall be preserved until thirty business days following action by the Provost (or the President as per §5.8.9), or in the case of an appeal (see §5.8.14.6 below) until final and conclusive action is taken, at which time the recordings shall be destroyed.

5.8.14.3  Conduct of Hearing    The Hearing shall be convened and conducted by the UFAGC chair.  Counsels, advisers, or other observers may not speak or participate; they are to silently observe the proceedings. The purpose of the Hearing is to allow the Committee to complete its work of determining a recommendation, given the charge(s) made, which may require further fact-finding through questioning of the parties or other witnesses.  In principle, the facts will already have been presented in writing from both sides; the hearing provides the Committee the opportunity to clarify issues by asking questions of either or both parties and to hear from witnesses it feels the need to hear from.  The Committee will afford both the grievant and the accused the opportunity to provide a brief, five-minute statement at the beginning of the Hearing, should either choose to do so, and it reserves the option of asking questions of them at that time.  Either party may make a written request no less than five (5) business days in advance of the Hearing to call and interrogate witnesses, if either believes that such witnesses will bring new and important information to the Committee’s attention. The reasons for the need of such witnesses must be provided in the written request, along with a statement from each witness.  The Committee will rule on requests to call witnesses at least two (2) business days before the Hearing begins. The Committee will afford both the grievant and the accused the opportunity to provide a brief, five-minute statement at the conclusion of the Hearing, should either choose to do so, and it reserves the option of asking questions of them at that time.

5.8.14.4  Order of Hearing Activities    The general outline of a Hearing (with all possible steps included) would follow this procedure:

  • Convening of the Hearing by committee chair
  • Opening statement by grievant
  • Opening statement by respondent to the grievance
  • Questions by Committee to clarify issues raised in written materials, including witness statements, and points raised by the two opening statements
  • Witnesses called by the grievant (questions by the Committee and the respondent would follow the witness’s initial responses to questions asked by the grievant)
  • Witnesses called by the respondent (questions by the Committee and the grievant would follow the witness’s initial responses to questions asked by the respondent)
  • Witnesses called by the committee (questions by the grievant and the respondent would follow the witness’s initial responses to questions asked by the Committee)
  • Closing statement by grievant
  • Closing statement by respondent to the grievance
  • Committee adjourns to deliberate and reach a decision

5.8.14.5  Decision     After all testimony has been presented, the chair of the UFAGC  shall recess the Hearing, and the Committee shall go into closed session to determine its findings and prepare its report and recommendations.  If the grievance is against an individual faculty member and he/she is found by the committee to be responsible, recommended remedies and sanctions may include but are not limited to those in §4.3.

5.8.14.6  Distribution of Decision    Within ten (10) business days after the recess of the Hearing, the UFAGC shall present its written report and recommendations, showing the vote of the Committee on the recommendations, to the Provost (or the President as per §5.8.9) and to all parties to the Hearing.  The report shall provide a summary of the facts presented in the Hearing and the reasons for the recommendations of the Committee. Within ten (10) business days after receipt of the Committee’s report and recommendations, the Provost (or the President as per §5.8.9) shall communicate, in writing, to the parties involved and to each member of the Committee, his or her acceptance or rejection, in whole or in part, of the UFAGC recommendations.

5.8.14.7  Appeal to the President    Ordinarily the decision of the Provost shall be final and conclusive.   However, an affected party may present a request, in writing, to the President within ten (10) business days after receipt of the Provost’s decision, asking to review the record of the hearing.  Within twenty (20) business days after receipt of a request from an affected party, the President will either affirm the decision of the Provost or make additional or different determinations. The decision of the President is final.