POL 05.25.01 - Faculty Grievance and Non-Reappointment Review Policy

Authority: Board of Trustees

History: First Issued: September 20, 1996. Last Revised: November 5, 2013.

Related Policies:
UNC Code Section 604 - Appointment, Nonreappointment and Requirements of Notice and Review
UNC Code Section 607 - Faculty Grievance Committee for Constituent Institutions 
UNC Code Section 610 – Rights of Special Faculty Members
UNC Policy Manual 101.3.1 – Review of Nonreappointment Decisions under Section 604 of The Code
UNC Policy Manual 101.3.2 - Grievances Filed Pursuant to Section 607 of the Code
NCSU POL01.05.08 - Faculty and EPA Non-Faculty Appeals to Board of Trustees 
NCSU POL04.25.05 - Equal Opportunity and Non-Discrimination Policy Statement
NCSU POL05.35.01 - Mediation Policy and Procedure
NCSU REG04.25.02 - Resolution Procedures for Discrimination, Harassment and Retaliation Complaints
NCSU REG05.25.04 - Faculty Grievance and Non-Reappointment Review
NCSU REG05.35.01 - Mediation Procedure for Faculty and Staff

Additional References: 
Section 604 Review Checklist 
Report of the 604 Review Committee 
604 Faculty Review Flow Chart
Section 607 Grievance Checklist 
Report of the 607 Grievance Committee  
607 Faculty Grievance Flow Chart
Official Record Checklist
Review and Grievance Panel Workshop 2011

Contact Info: Vice Chancellor and General Counsel (919-515-3071)


1. INTRODUCTION

1.1  The purpose of this policy is to provide an internal university process for the good faith resolution of employment-related grievances filed by faculty.  Employment related grievances covered by the Code of the Board of Governors of the University of North Carolina (UNC Code) include (a) “Section 604 reviews” in which a tenure track faculty member may seek review of a non-reappointment decision and (b) “Section 607 grievances” in which a faculty member may seek redress concerning other employment-related grievances including post-tenure reviews. This policy is established to implement these UNC Code requirements.

2. GENERAL PROVISIONS FOR SECTION 604 REVIEWS AND SECTION 607 GRIEVANCES

2.1  Pre-filing meeting.

2.1.1  Prior to filing a petition for review (Section 604) or a grievance (Section 607), the faculty member shall meet with the responsible administrators (typically the Department Head and Dean) to attempt to resolve the issues giving rise to the review petition or grievance.

2.2  Mediation Alternative.

2.2.2  A faculty member may seek to resolve grievances in accordance with NCSU REG05.35.01 - Mediation Procedure for Faculty and Staff as part of, or independent of, the grievance process.  (See subsection 5.2 below.)

2.3  Claims of Discrimination.

2.3.1  If a faculty member claims violation of NCSU POL04.25.05 - Equal Opportunity and Non-Discrimination Policy Statement as a basis for a review, the matter shall be referred to the NC State Office for Equal Opportunity (“OEO”) for consideration prior to the commencement of any hearing.  (See subsection 5.3.)

2.4  Confidentiality.

2.4.1  State law makes personnel records confidential, and all participants in the review or grievance process must not disclose the information they acquire during the proceeding except as provided by law.  Non-party witnesses must be excluded from the hearing except during their own testimony.

2.5  The 604/607 Committee.

2.5.1  There shall be a standing university committee elected by the General Faculty and designated as the 604/607 Committee.  The 604/607 Committee shall include members from all professorial ranks and non-professorial faculty such as librarians, and may not include anyone with an administrative appointment.  The Chancellor shall appoint the Chair of the 604/607 Committee from the elected members after conferring with the Chair of the Faculty.  For each petition or grievance filed, the 604/607 Committee shall appoint a sub-committee (“Review Panel” for Section 604 reviews and “Grievance Panel” for Section 607 grievances) from its membership as provided below in subsection 5.4.  Members of the 604/607 Committee shall receive annual training on procedures from the Office of General Counsel before serving on a panel.  The Office of General Counsel shall assign an impartial attorney to provide procedural advice to each panel.

3. SECTION 604 REVIEWS

3.1  Who May Seek Review.

3.1.1  Section 604 reviews are limited to non-reappointment decisions with respect to tenure track faculty (including a denial of tenure).  The faculty member who seeks review of a non-reappointment decision is the “petitioner.”

3.2  What May Be Reviewed.

3.2.1  A Section 604 review may proceed only on the grounds that the non-reappointment decision was based on one or more of the following:

3.2.1.1  The procedures followed to reach the decision materially deviated from prescribed procedures such that doubt is cast on the integrity of the decision not to reappoint;

3.2.1.2  The exercise by the faculty member of rights guaranteed by the First Amendment to the United States Constitution, or by Article I of the North Carolina Constitution;

3.2.1.3  Discrimination as defined and prohibited by NCSU POL 04.25.05 Equal Opportunity and Non-Discrimination Policy.

3.2.1.4  Personal malice.

3.2.1.4a  The term “personal malice” means dislike, animosity, ill-will, or hatred based on personal characteristics, traits or circumstances of an individual that are not relevant to valid university decision making.

3.3  Filing a Section 604 Petition.

3.3.1  A petition must be filed within sixty (60) calendar days of notice of the non-reappointment decision.  Filing occurs when the petition is provided to the Chair of the Faculty.

3.3.2  The petition must include the following information:

3.3.2.1  A statement that the petitioner met with his or her department head and dean in an effort to resolve the matter, and the meeting was not successful.

3.3.2.2  The grounds for the petition.  Specifically, a statement of facts to support a claim that the non-reappointment decision was based on one or more of the grounds in part 3.2 above.

3.3.2.3  The name of the person who was responsible for the alleged improper decision; such person is called the “respondent.”  The Provost is a respondent in all non-reappointment decisions, however, a Department Head and/or Dean may be named as a co-respondent if he/she materially contributed to the violation of rights alleged in the petition.  Other persons may not be named as respondents unless all parties agree.

3.4  Purpose of the 604 Review.

3.4.1  The purpose of reviewing non-reappointment decisions is to determine if the decision resulted from one of the impermissible grounds set forth in subsection 3.2 above.  A Review Panel may not second-guess professional judgments based on permissible considerations.  A Review Panel cannot reverse a non-reappointment decision, but can only recommend a reassessment of that decision if, based on its findings and conclusions, the Panel concludes that the petitioner showed by a preponderance of the evidence that the non-reappointment decision was caused by one or more of the impermissible grounds.

4. SECTION 607 GRIEVANCES

4.1  Who May Grieve.

4.1.1  Section 607 grievances may be filed by any faculty member (“grievant”) during his/her employment at NC State.

4.1.2  If the grievant is separated from employment while the grievance is pending, the grievance must be dismissed unless the Chancellor in his/her discretion decides it is in the university’s best interest to allow the grievance to continue.

4.2  What May and May Not Be Grieved.

4.2.1  What May Be Grieved – General Grievances.

4.2.1.1  Section 607 grievances are limited to matters directly related to a faculty member’s employment status and institutional relationship within NC State, provided that:

4.2.1.1a  The faculty member has been adversely affected in professional or academic capacity, and

4.2.1.1b  The adverse affect is due to an administrator’s decision(s) that is alleged to violate law, or a university policy, regulation, or rule (PRR), or commonly shared understandings within the academic community about the rights, privileges and responsibilities attending university employment.

4.2.2  What May Be Grieved – Post-Tenure Review.

4.2.2.1  Section 607 grievances are also allowed for post-tenure review decisions on the grounds that the decision, “does not meet expectations,” was based on one or more of the following:

4.2.2.1a  The procedures followed to reach the decision materially deviated from prescribed procedures such that doubt is cast on the integrity of the post-tenure review decision; or

4.2.2.1b The exercise by the faculty member of rights guaranteed by the First Amendment to the United States Constitution, or by Article I of the North Carolina Constitution; or

4.2.2.1c  The faculty member’s race, color, sex, religion, creed, national origin, age, disability, veteran’s status, genetic information, sexual orientation, or other forms of discrimination prohibited under policies adopted by campus Boards of Trustees; or

4.2.2.1d  Personal malice.  The term “personal malice” means dislike, animosity, ill-will, or hatred based on personal characteristics, traits or circumstances of an individual that are not relevant to valid university decision-making.

4.2.2.1e  The department head will be the respondent in the grievance.  Members of the post- tenure review committee may be called as witnesses by either the respondent or the grievant.

4.2.3  What May Not Be Grieved:

4.2.3.1  Dissatisfaction. with the general application of a university, college or department policy, regulation, or rule (PRR) challenged on the grounds that the PRR itself is unfair or inadvisable;

4.2.3.2  Non-renewal or non-extension of a contract upon expiration of an existing contract for non-tenure-track faculty;

4.2.3.3  Complaints, grievances or appeals that are subject to another university procedure or within the jurisdiction of another university committee, (e.g., research misconduct complaints, intellectual property determinations, campus police trespass appeals, Section 603 discharge or sanction cases, etc.).

4.2.3.4  Claims for compensatory or punitive damages that can be filed with the North Carolina Industrial Commission.

4.3  Status of Grievances Where Other Proceedings Are Pending.

4.3.1  If a grievant is named in a UNC Code Section 603 proceeding for discharge for cause or imposition of other serious sanction, the grievance will be dismissed if it relates to the Section 603 proceeding.  If the grievance is unrelated to the Section 603 proceeding, it will be held in abeyance until the conclusion of the Section 603 proceeding.  If the Section 603 proceeding results in discharge, the Section 607 grievance must be dismissed.  If it does not result in discharge, the Section 607 grievance may proceed after the final decision at NC State in the Section 603 proceeding.

4.4  Filing a 607 Grievance.

4.4.1  A grievance must be filed within sixty (60) calendar days from when the grievant knew or should have known of the decision being grieved.  Filing occurs when the written grievance is provided to the Chair of the Faculty and to the respondent administrator.

4.4.1.1  The grievance must include the following information:

4.4.1.1a  A statement that the grievant met with the Department Head and Dean, or other responsible administrator, in an effort to resolve the matter, and the meeting was not successful.

4.4.1.1b  The nature and grounds for the grievance.  Specifically, a statement of facts to support a claim that the decision being grieved violated the grievant’s rights under particular laws or policies, and how the grievant has been adversely affected.

4.4.1.1c  The name of the person(s) responsible for the alleged improper decision.  Such person is called the “respondent.”  However, persons may be named as respondents only if they were active and substantial participants in the decision being grieved.

4.4.1.1d  The redress sought.

4.5  Purpose of the 607 Grievance.

4.5.1  The purpose of employment related grievances (Section 607 grievances) is to determine whether the grievant has been adversely affected by an administrative decision that violates his or her rights under subsection 4.2.1 or 4.2.2 above.  A Grievance Panel may not second-guess professional judgments based on permissible considerations.  A Grievance Panel cannot reverse an administrator’s decision, but can only recommend a reassessment of that decision if, under its recommended findings and conclusions, the grievant showed by a preponderance of the evidence that the decision was caused by one or more of the grounds in 4.2.1 or 4.2.2.

5. INITIAL STEPS BY CHAIR OF THE FACULTY

5.1  The Chair of the Faculty shall promptly forward the petition or grievance to the Chair of the 604/607 Committee and the respondent(s).

5.2  Mediation.

5.2.1  The Chair of the Faculty will ask the parties if they are willing to participate in mediation.  The parties shall respond in writing to the inquiry from the Chair of the Faculty regarding mediation.  If the parties agree to mediate, the non-reappointment review or the grievance process is suspended until the mediation is concluded and the Chair of the Faculty is notified of the outcome.

5.3  Procedure for Discrimination Claims.

5.3.1  If the petitioner or grievant claims violation of NCSU POL04.25.05 - Equal Opportunity and Non-Discrimination Policy Statement as a basis for the review or grievance, the Chair of the Faculty shall refer the matter to the NC State Office for Equal Opportunity (“OEO”) for consideration prior to the commencement of a hearing.  OEO shall respond promptly and shall notify the Chair of the Faculty when the OEO role is concluded.  The Chair of the Faculty shall then ask petitioner or grievant if he/she wishes to continue the proceeding.  If the matter proceeds to hearing, either party may offer any OEO report as evidence.

5.4  Forming the Review Panel or Grievance Panel.

5.4.1  Unless the matter is resolved under subsection 5.2 or 5.3 above, the Chair of the Faculty shall direct the Chair of the 604/607 Committee to form a sub-committee for each case.  The sub-committee shall be called the “Review Panel” (for Section 604 reviews) or the “Grievance Panel” (for Section 607 grievances).  Each panel shall be selected from members of the 604/607 Committee, and shall consist of three (3) members plus a non-voting Chair.

6. REVIEW OR GRIEVANCE PANEL CHAIR

6.1  The Chair of the Review or Grievance Panel shall determine all procedures for the review or grievance process, unless otherwise indicated in this policy.  The Chair shall set the schedule for the review or grievance proceeding, and the order of presentation at the hearing.  The Chair is responsible for logistics (e.g., reserving a room and obtaining a court reporter).  The Chair is responsible for maintaining all records of the review or grievance proceeding, for compiling the official record to transmit to the Chancellor, and for writing a report of the Review or Grievance Panel’s recommended findings and conclusions for transmission to the Chancellor.

7. REVIEW OR GRIEVANCE PANEL

7.1  Jurisdiction.

7.1.1  The first action of the Review or Grievance Panel shall be to determine if the petition or grievance was filed on time and if it has stated proper grounds.  The Review or Grievance Panel may ask the parties for more information about timeliness and the grounds for the petition or grievance, but shall endeavor to make a decision regarding jurisdiction within five (5) business days after the next regularly scheduled meeting of the standing 604/607 Committee.  If the Review or Grievance Panel determines that it has jurisdiction over some or all the petition or grievance, the matter proceeds to hearing.  If the Review or Grievance Panel determines the matter was not filed on time or has not stated proper grounds, then it shall submit the record of the proceeding and a report to the Chancellor recommending dismissal of the petition or grievance, with copies to the parties.

7.2  Role of the Review or Grievance Panel.

7.2.1  The Review or Grievance Panel is responsible for receiving relevant evidence, making findings of fact, and providing advice to the Chancellor on the merits of the faculty member’s allegations.

8. PROCEDURES FOR SECTION 604 REVIEWS AND SECTION 607 GRIEVANCE HEARINGS

8.1  Attorneys and Observers.

8.1.1  Each party may bring one observer to the hearing, provided the Chair of the Review or Grievance Panel has been notified in advance as set out below.  If there are multiple respondents, each may bring one observer.  Observers may be attorneys; however, observers may not participate in the hearing and attorney representation before the Review or Grievance Panel is not allowed.  Observers may not be witnesses for a party.

8.2  Respondent Statement and Exchange of Exhibits and Witness Lists.

8.2.1  If the Review or Grievance Panel determines there is jurisdiction and the matter should proceed to hearing, it shall so notify the parties (petitioner or grievant and respondent(s)).  The notice shall also require the respondent(s) to file a written response to the petition or grievance, including a brief statement of facts for each element of the petition or grievance that the respondent denies, and the name of any observer for the respondent.  This response must be provided to the Chair of the Review or Grievance Panel and the petitioner or grievant within five (5) business days of respondent’s receipt of the Panel’s decision on jurisdiction.

8.2.2  The Chair of the Review or Grievance Panel shall require the parties to exchange witness lists and copies of exhibits the parties wish to introduce as evidence, and the committee chair shall specify that the exchange occur a certain number of days in advance of the hearing, with a copy to be provided to the Chair.  The Chair may not share the exhibits with the other members of the Panel, but may make sufficient copies for the court reporter and other Panel members in the event the exhibits are offered and accepted into evidence at the hearing.

8.3  Evidence.

8.3.1  The Chair of the Review or Grievance Panel shall decide whether to exclude evidence (including testimony) if it is unduly repetitious, immaterial, irrelevant, or abusive.  If evidence is offered by a party but excluded from consideration by the Chair of the Review or Grievance Panel, it must be preserved as part of the record for review.

8.3.2  Testimony must be recorded by reliable means such as a court reporter, and transcripts should be provided to the parties upon request as soon as available.

8.4  Ex parte communications are prohibited.

8.4.1  There may be no communications between Panel members and other persons involved in the review or grievance proceeding, regarding the subject matter of the review or grievance, except (1) in the hearing or in written documents (including email) copied to all parties, or (2) after the Panel issues its report to the Chancellor.

8.5  Prompt Hearing.

8.5.1  The Chair of the Review or Grievance Panel shall schedule the hearing as soon as possible after the exchange of witness lists and exhibits, allowing the parties at least three (3) business days after the exchange, but preferably no more than ten (10) business days.  Timing of exhibit exchange and hearings may be extended where there is a good reason.

9. PANEL REPORT

9.1  Dismissals for Lack of Jurisdiction.

9.1.1  If the Review or Grievance Panel decides the petition or grievance was not filed on time or was not based on proper grounds, it shall proceed as set forth in subsection 7.1 above.

9.2  Cases that Proceed to Hearing.

9.2.1  The Review or Grievance Panel shall meet to deliberate after the hearing.  It shall make findings of fact on the allegations presented in the petition or grievance and the responses thereto, make recommended conclusions on whether the petitioner has proven by the preponderance of the evidence that the non-reappointment decision resulted from improper grounds as set out in part 3.2 above (for Section 604 reviews) or whether the grievant has proven by the preponderance of the evidence that he/she has been aggrieved as set out in parts 4.2.1 or 4.2.2 above (for Section 607 grievances), and shall make recommendations to the Chancellor and/or appropriate administrator for resolution of the matter.  The Review or Grievance Panel report shall be drafted by the Chair of the Review or Grievance Panel Dissenting members of the Panel may file their own reports.

9.2.2  For Section 604 reviews, the Chair shall provide the official record and the Panel report to the Chancellor, and at the same time shall provide a copy of the report to the parties within 14 business days after the hearing.

9.2.3  For 607 grievances, the Chair shall provide a copy of the report to the parties and the administrator with the authority to make an adjustment based on the report, within 14 business days after the hearing.  The Chair shall provide the official record and the Panel report to the Chancellor, and at the same time shall provide a copy of the report to the parties, if the responsible administrator has not accepted and acted upon the recommended adjustment within 14 business days of receiving the report.

10. CHANCELLOR’S DECISION

10.1  The Chancellor shall base his/her decision on the report of the Review or Grievance Panel and his/her review of the record of the hearing.  The Chancellor may, in his/her discretion, consult with the Review or Grievance Panel before making a decision.  While the Chancellor should give appropriate deference to the advice of the Panel, the final campus-based decision is the Chancellor’s.  The decision shall set out appeal rights if the decision is not in favor of the petitioner or grievant.  The Chancellor’s decision shall be provided to the parties in writing with a method that provides documentation of delivery or attempted delivery within 60 days following receipt of the record and report of the Review or Grievance Panel.

11. APPEALS

11.1  Section 604 Appeals.

11.1.1  A petitioner who wishes to appeal the Chancellor's decision must file written notice of appeal with the Board of Governors by submitting such notice to the President of the University of North Carolina, by certified mail, return receipt requested, or by another means that provides proof of delivery, within ten (10) calendar days of receipt of the Chancellor's decision.

11.1.2  Appeals may be made to the Board of Governors only on the following grounds: (a) the campus process or decision had material procedural errors, (b) the campus process or decision was clearly erroneous, or (c) the campus process or decision was contrary to controlling law or policy.

11.1.3  The notice of appeal should consist of a brief explanation of why the Chancellor’s decision is in error, consistent with the grounds for appeal noted immediately below.  The President will notify the petitioner if the Board of Governors will consider the appeal, what additional documents may be required, and what additional procedures may apply.

11.2 Section 607 Appeals.

11.2.1  If the Grievance Panel did not find that an adjustment in favor of the grievant was appropriate, the Chancellor’s decision is final and may not be appealed.  If the Grievance Panel did find that an adjustment in favor of the grievant was appropriate and neither the respondent nor the Chancellor made an adjustment recommended by the Panel in favor of the grievant, the grievant may appeal the Chancellor’s decision.  Appeals shall be to the Board of Trustees, and shall be filed by submitting the written notice of appeal to the Chancellor, certified mail, return receipt requested, or by another means that provides proof of delivery, within ten (10) calendar days after receipt of the Chancellor’s decision.  The notice of appeal should consist of a brief explanation of why the Chancellor’s decision is in error.

11.2.2  Grounds for an appeal are limited to showing that the Chancellor’s decision was clearly erroneous, that it violated applicable federal or state law or university policies or regulations, or that the process used in deciding the grievance was materially flawed.

11.2.3  The decision of the Board of Trustees shall be the final university decision.  Any further review must be conducted pursuant to applicable law.

12. DELEGATION TO CHANCELLOR

12.1  The Chancellor is authorized to establish regulations to implement this policy, provided the regulations are not inconsistent with the UNC Code or this policy.  The Faculty Senate shall be consulted in the review of regulations associated with this policy.

12.2  The Chancellor may grant exceptions to this policy in any case where following the policy would result in substantial unfairness (e.g., if the Chancellor has a conflict of interest, another decision-maker may be designated).  Any such exception should be reported to the Board of Trustees, Chair of the Faculty, Chair of the 604/607 Committee, Chair of the Review or Grievance Panel, and the parties.