UNC CHARLOTTE PERSONNEL INFORMATION MEMORANDUM

PIM 35

Grievance and Appeal Procedures for Employees Subject to the State Personnel Act

DATED:  July 1, 2002

Category:  Employee Relations/Compliance

Contact:  Director of Employee Relations and Compliance – ext. 2804

1. Statement of Purpose

In order to maintain a harmonious and cooperative relationship between the University and its staff employees subject to the provisions of the State Personnel Act, The University of North Carolina at Charlotte has established these procedures to provide for the orderly settlement of problems and differences. Each supervisor and each staff member has an obligation to make every effort to resolve problems as they arise. The University encourages the resolution of grievances on an informal basis whenever possible. However, when a complaint cannot be resolved informally, the University provides for a formal review, which will seek a fair and timely solution. Use of the formal grievance procedure shall not prejudice the service or status of the staff member.

2. General

  1. Any Career State employee or former career state employee (SPA) who has a complaint or dissatisfaction arising from an interpretation, application or a claim of violation of any provision of policy, rule or regulation applicable to University employment shall have the opportunity to present a grievance in accordance with these procedures, free from interference, coercion, restraint, discrimination, or reprisal. Issues that may be grieved through this University's policy include but are not limited to the following: demotion, suspension without pay, dismissal, reduction in force, illegal discrimination, denial of promotion due to failure to post, denial of promotional priority, denial of priority reemployment, denial of veteran's preference, denial of the removal of false and inaccurate or misleading information from the personnel file, performance pay disputes, violations of the FLSA, ADEA, FMLA or ADA, decisions on requests for reasonable accommodation and any other issues made grievable by the State Personnel Act.
     
  2. Probationary employees and permanent employees without "career status" shall have access to the grievance procedures, except that extension of the probationary period and termination are not grievable issues absent allegations of discrimination.
     
  3. Applicants for state employment (SPA classified positions) have access to the grievance process for issues related to denial of veteran’s preference or denial of employment based on illegal discrimination and decisions on request for reasonable accommodation.
     
  4. Note:  For a complete and updated list of grievable issues and/or covered persons, please refer to the State Personnel Manual, Section 7.
     
  5. All grievances shall be handled expeditiously at each level of procedure. Grievances should be pursued initially within the time frame outlined in Section 5, Steps 1 and 2 below. Failure to follow the established time guidelines may result in the grievance not being addressed, unless extenuating factors prevented timely filing of the grievance. Determinations regarding such factors will be made by the Director of Human Resources.
     
  6. Unless both parties agree to extend the time allotted for the grievance process, the final University decision regarding grievances involving dismissal and demotion shall be issued no later than 75 working days from the date the grievance is originally discussed with the immediate supervisor. Similarly, final University decisions shall be issued in all other grievable matters no later than 100 working days from the date the grievance is originally discussed with the immediate supervisor, unless both parties agree to extend the grievance process.
     
  7. These grievance procedures will be distributed to all offices and departments of the University and shall be discussed during the orientation for new staff employees. Employees will be provided a copy of the procedures upon request. Changes in this policy will be distributed to all offices and departments of the University a minimum of thirty (30) days prior to the date upon which the changes become effective. Employees seeking information about the University's Grievance and Appeal Procedures or who have questions about the process may contact the Director of Employee Relations and Compliance in the Human Resources Department.
     
  8. Time off shall be provided from regular duties as may be necessary and reasonable for the presentation and processing of grievances and appeals at the University level without loss of pay, vacation, or other time credits, up to a maximum of eight (8) hours. Employees must notify their supervisors in advance and receive prior approval of the necessity to be absent from work for preparation of the internal grievance. Employees may request time off without loss of pay, vacation, or other time credits to participate in contested case hearings, or other administrative hearings outside the University. The amount of time which is reasonable and necessary in this regard shall be determined by management.
     
  9. Neither the employee nor the person against whom the grievance is directed (respondent) may be represented by an attorney at any stage of review at the University level. However, the grievant may consult with a fellow employee, of his or her choice, for assistance in bringing and prosecuting a complaint. The assistance of the fellow employee can include accompanying the grievant during any hearings to serve as a advisor, but not as an advocate or a spokesperson. The selected fellow employee shall adhere to guidelines and timeframes outlined in these Procedures.
     
  10. This policy is in conformity to guidelines established by the North Carolina State Personnel Commission and the Office of State Personnel. No decision can be made at any step of the grievance procedure which conflicts with any applicable state or federal statute.

3. Grievances Alleging Unlawful Workplace Harassment

A.   To address the sensitive nature of situations involving unlawful workplace harassment, hostile work environment, quid pro quo harassment or retaliation and assure speedy and confidential resolution of these issues, the University has established an informal counseling and mediation process as well as a formal grievance process for handling complaints involving unlawful workplace harassment. Informal counseling and mediation may be utilized, but are not required to proceed to the formal grievance procedures

B.   The grievant must submit a written complaint to the Assistant Director of Compliance and Employee Relations (Department of Human Resources) within 30 calendar days of the alleged harassing action. If a complaint is directed against a supervisor or administrator who would otherwise play a role in responding to and attempting to resolve the complaint, the function assigned to that person by these procedures will be assigned to another person designated by the Director of Human Resources or his designee.

C.   The Director of Employee Relations and Compliance shall take appropriate remedial action and shall notify the grievant, in writing, of such action within 60 calendar days from receipt of written complaint.

D.   A grievant who is not satisfied with the decision resulting from these procedures may appeal directly to the State Personnel Commission within 30 calendar days.  Note: Former employees may also appeal directly to the State Personnel Commission.

E.   A grievant has a right to file a simultaneous complaint under Title VII with the Equal Employment Opportunity Commission (EEOC).

F.   Remedial action will depend on the severity of the incident, but violation of The Unlawful Workplace Harassment Policy may, in appropriate cases, result in discharge from employment. Because of the private nature of some unlawful workplace harassment incidents, and the emotional and moral complexities surrounding such issues, every effort shall be made to resolve problems on an informal basis, if possible. Informal resolution may include disciplinary action when appropriate.

G.   All disciplinary actions shall be consistently and fairly applied.

H.   The Unlawful Workplace Harassment Policy seeks to encourages current full-time or part-time SPA employees with either a permanent, probationary, trainee, time-limited permanent or temporary appointment and former SPA employees to express freely, responsibly, and in an orderly way their opinion and feelings about any problem or complaint of unlawful workplace harassment. 

4. Grievances

  1. Alleging Discrimination

An applicant, employee or former employee with a grievance concerning the denial of employment, promotion, training or transfer or concerning a demotion, layoff, transfer or termination due to discrimination based on age, sex, race, color, national origin, religion, creed, political affiliation or disability status except where specific age, sex or physical requirements constitute a bona fide occupational qualification necessary to proper and efficient administration, or a grievance based on retaliation for opposition to alleged discrimination shall have the right to file a grievance directly with the Office of Administrative Hearings and the State Personnel Commission.  At the sole option of the employee, such grievances may be filed using grievance procedures established within the University. An employee or applicant must file any grievance alleging illegal discrimination with the University within fifteen (15) calendar days or with the State Personnel Commission within thirty (30) calendar days of the date the employee had knowledge of the alleged discriminatory action. An appeal to the State Personnel Commission is accomplished by filing a petition for a contested case hearing with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, within thirty (30) days of notice of the act or omission giving rise to the appeal.  The telephone number is (919) 733-2698.

B.      Other Than Those Alleging Discrimination

             i.    Grievances involving performance pay disputes for which the Administrative Review procedures of the Performance Management System have not resolved the dispute to the satisfaction of the employee after Step 1 will proceed directly to Step 3 - Review by Staff Grievance Committee. Performance evaluation/pay disputes are defined as complaints concerning the amount of performance increase, a failure to receive any performance increase, or a complaint regarding an overall performance appraisal rating. Grievances involving a dismissal action proceed directly to Section 5, Step 1 - Review by the Immediate Supervisor.

            ii.    Grievances involving allegations of unlawful workplace harassment or racial harassment may (upon the request of the grievant) proceed directly to Section 5, Step 2 - Formal Grievance.

             iii.   Grievances involving a decision for reasonable accommodation may proceed directly to Step 6 - Appeals to the State Personnel Commission.

5. Grievance Process

Step 1: Informal Discussion(s):

a. All grievances must be presented to the immediate supervisor within fifteen (15) calendar days of the occurrence which gave rise to the grievance or within fifteen (15) calendar days of the date the employee had reason to know of the occurrence. Both the employee and the supervisor may discuss the matter informally with other higher level supervisors/administrators. If the supervisor does not have the authority to address the particular grievance, then the employee's grievance shall be referred to the appropriate supervisory level within two (2) working days of the employee's original notification; the immediate supervisor shall notify the employee as to whom the grievance was referred. Once receiving notification, the supervisor, or the appropriate supervisory official, shall discuss the grievance and provide a verbal response to the grievant within five (5) working days. Mutual agreement by both parties that continued efforts to resolve the grievance through informal discussion(s) are worthwhile will automatically suspend the time limit required for notification of the Director of Employee Relations and Compliance until an impasse is acknowledged by either party, or ten (10) additional working days have passed.

b.  If the employee feels that the matter cannot be discussed with the immediate supervisor, then the Director of Employee Relations and Compliance in the Human Resources Department may be contacted for assistance and advice. In such instances the Director of Employee Relations and Compliance may serve as an intermediary to attempt to bring the parties together informally for resolution.

c.  In addition, the Director of Employee Relations and Compliance is available to:

i.    Counsel with the employees and/or supervisors in an effort to resolve problems or misunderstandings before they become formal grievances

ii.   Assist employees in clarifying their grievances.

iii.   Advise employees and supervisors of their rights and responsibilities under the grievance procedure.

Step 2: Formal Grievance

a.  The grievance may be filed with the Director of Employee Relations and Compliance in the Human Resources Department within five (5) working days if either party acknowledges an impasse in informal discussions, a period of informal discussion has continued for a maximum of fifteen (15) working days without resolution, if the employee wishes to further pursue the grievance following notification of the supervisor's decision, or if the supervisor fails to provide a response to a grievance within the specified period of time.

b.  The grievance must be in writing, signed by the employee, and should:

                 i.       Identify the policy or rule alleged to have been violated

                 ii.       Contain a concise statement of the facts surrounding the grievance, and

                iii.       Contain any remedy (redress) sought

Any grievance which does not include these essential elements may be rejected.

c.  Upon receipt of a written grievance, the Director of Employee Relations and Compliance shall provide the grievant a copy of the current policy governing the Grievance and Appeal Procedures for Employees Subject to the State Personnel Act.

d.  The Director of Employee Relations and Compliance will, within two (2) working days, refer the grievance to an appropriate administrative official (Director, Department Chair, Dean, Associate Vice Chancellor, or Vice Chancellor) for resolution of the matter. Within five (5) working days from receipt of that referral, the administrative official or a designee will schedule a meeting with the grievant, the immediate supervisor, a representative of the Human Resources Department, and any other individuals the administrative official determines will assist in the investigation and resolution of the problem. Such meeting shall be held within fifteen (15) working days from the receipt of the written grievance by the administrative official.

e.  The administrative official will provide the grievant with a written decision within five (5) working days after the meeting and forward a copy of the decision to the Director of Employee Relations and Compliance.

Step 3: Review by Staff Grievance Committee

a.  A grievant who is not satisfied with the decision rendered by the administrative official or who does not receive a written response within (5) working days may request the grievance be reviewed by a Hearing Panel of the Staff Grievance Committee. To be considered, requests for review must be submitted in writing by the grievant to the Director of Employee Relations and Compliance within five (5) working days after receipt of the administrative official's written decision or the expiration of the time permitted for such a decision.

b.  After going through Step 1, career employees who have been dismissed may proceed with their grievance directly to Step 3, review by a Hearing Panel of the Staff Grievance Committee. Requests for review must be made by the grievant to the Director of Employee Relations and Compliance within five (5) working days after receipt of the immediate supervisor/administrative official's response in Step 1.

c.  Career employees with permanent position appointments may file a grievance requesting that a performance evaluation/pay dispute be reviewed by a Hearing Panel of the Staff Grievance Committee. Requests for review shall be submitted in writing by the grievant to the Director of Employee Relations and Compliance within fifteen (15) working days of either the date of receipt of the notification (written) documenting the performance salary increase decision, or the completion of the performance appraisal in dispute.

d.  The Chancellor will appoint by written notice a Staff Grievance Committee of twelve (12) members, four (4) of whom are designated Hearing Panel Chairs. Committee members shall, except where necessary initially to establish the rotation herein prescribed, serve three-year terms with approximately one-third of the terms expiring annually. An employee may serve for consecutive periods if reappointed by the Chancellor. The members will be classified (SPA) employees of the University and the Committee will be a representative mix of male/female, minority/majority, supervisory/non-supervisory employees, and of major operating areas of the University.

e.  Within two (2) working days of receipt of a grievance for hearing, the Director of Employee Relations and Compliance will select from the Staff Grievance Committee a Hearing Panel consisting of a Chair and two (2) other Committee members. To ensure impartiality, the Hearing Panel will include at least two non-supervisory members. It will not include employees from the same operational unit as the grievant and will not include more than one employee from any operational unit. In order for a hearing to be conducted, all members of the Hearing Panel must be present.

f.  The grievant and the person against whom the grievance is directed (respondent) shall be informed as to the Staff Grievance Committee members which will constitute the Hearing Panel by the Director of Employee Relations and Compliance, and may each disqualify up to two of the members selected for the Hearing Panel. Disqualified members will be replaced by other members of the Staff Grievance Committee as selected by the Director of Employee Relations and Compliance.

g.  The Director of Employee Relations and Compliance shall serve as advisor to each Hearing Panel.

h.  To allow time for participants to prepare, a Hearing Panel shall accord the participants eight (8) working days after the Chair receives the written request for a hearing from the Director of Employee Relations and Compliance. The Chair may, upon written request and for good cause, extend this time by written notice to the participants, for an additional five (5) working days. The Panel shall initially convene no later than thirteen (13) working days after the Chair receives notification of the hearing request from the Director of Employee Relations and Compliance. The Director of Employee Relations and Compliance shall notify all parties as to the date, time, and place of the initial hearing, and shall make such physical arrangements as are necessary.

i.   Meetings of a Hearing Panel will be closed to the public unless the grievant and members of the Hearing Panel agree they may be open. A tape-recorded transcript of the hearings shall be kept; in the event of an appeal and upon request, a copy thereof will be furnished to the grievant at University expense. The hearing is under the control of the Hearing Panel Chair.

j.   In general, the party who has the burden of proof has the first opening statement and the last closing statement (summation). This will be the grievant in all cases except discipline; then management has the burden of proof.

k.  The hearing will proceed generally as follows:

                   i.    Administrative instructions from the Chair.

                   ii.    Opening statements by the grievant and by the respondent.
The opening statement by the grievant should:

   a)    Summarize the grievance to include the policy or rule  which is alleged to have been violated,

b)    Outline how s/he intends to present the case, and

c)    State the relief requested.

                    iii.    Presentation of the case by the grievant, including such witnesses and documents as the grievant may choose to present, as well as the grievant's own statements. The Hearing Panel and the respondent may question all witnesses.

                    iv.    Presentation of the case by the respondent, including such witnesses and documents as the respondent may choose to present, as well as the respondent's own statements. The Hearing Panel and the grievant may question all witnesses.

                     v.    Questioning of other witnesses the Hearing Panel chooses to call, by the Hearing Panel, the grievant, and the respondent.

                     vi.    At the discretion of the Hearing Panel, additional questioning of the principals or witnesses by either or both parties to the grievance.

                    vii.    Summation by the grievant.

                    viii.    Summation by the respondent.

                     ix.    Requests for additional information may be addressed by the Hearing Panel at subsequent hearing sessions, as required.

l.  In reaching decisions on which its written recommendations shall be based, a Hearing Panel shall consider only the evidence presented at convened meetings and such written and oral arguments as the Panel, at its discretion, may allow.

m. At the conclusion of the hearing, the Chair of the Hearing Panel will submit within three (3) working days, a written report of the Panel's recommendations concerning the grievance to the appropriate Vice Chancellor (or the Chancellor if the administrative official who evaluated the grievance at Step 2 or recommended the disciplinary action was a Vice Chancellor). The Vice Chancellor or a designee will convey a final written decision from the University to the principal parties concerned within five (5) working days of receiving the recommendations of the Hearing Panel.

n.  Each decision of the Vice Chancellor, Chancellor or a designee shall advise the employee in writing of any right of appeal from the decision. In every employee grievance in which the grievant has the right of appeal to the State Personnel Commission, the final decision of the University must inform the grievant in writing that any appeal from the final written decision must be made to the State Personnel Commission and must include the procedures for doing so, as specified under Section 6.

Note: Decisions of the appropriate Vice Chancellor or Chancellor or a designee regarding performance evaluation/pay disputes are final and cannot be appealed to the State Personnel Commission.

6. Appeals to the State Personnel Commission

a.  To make an appeal to the State Personnel Commission other than an appeal alleging discrimination or concerning alleged false and inaccurate or misleading information in a personnel file, or a decision on a request for reasonable accommodation, an employee must have obtained career status by meeting the following service requirements:

                    i.    Is in a permanent position appointment;

                    ii.    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.

b.  If a “career status” employee is not satisfied with the final University decision of the appropriate Vice Chancellor (or Chancellor), or if, within the time frame established under Section 2 above, a final decision cannot be obtained, the employee may appeal to the State Personnel Commission within thirty (30) calendar days of receipt of the University's decision, or the expiration of the time specified for the receipt of the University's decision. The grievant shall be informed in writing that an appeal to the State Personnel Commission shall be made by filing a petition for a contested case hearing with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.  The telephone number is (919) 733-2698.

7. Agency Responsibilities

By January 1, 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 agency 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 to the procedures.

In addition, the University shall:

A.  Continuously evaluate the grievance procedure's effectiveness.

B.  Compile information on employee grievances semi-annually and as otherwise requested by the Office of State Personnel. These reports shall be submitted prior to the first business day of January and July.

This policy was initially approved by the North Carolina State Personnel Commission March 19, 1990; revised and approved by the Commission August 3, 1995; revised and approved by the Commission June 1999; revised and approved by the Commission on September 20, 2007.