REG 05.25.02 - SPA Grievance and Appeal

Authority: Vice Chancellor for Finance and Business.

History: First Issued: November 1, 2002. Last Revised: May 8, 2012. Effective Date: June 15, 2012.

Related Policies: 
NCSU POL04.25.05 - Equal Opportunity and Non-Discrimination Policy Statement

NCSU REG04.25.02 - Resolution Procedures for Discrimination, Harassment and Retaliation Complaints
NCSU REG05.70.01 - SPA Successive Discipline

Additional References:
SPA Employee Grievance Form
N.C. Gen. Stat. § 126
N.C. Gen. Stat. §168A
Fair Labor Standards Act (FLSA)
29 U.S.C. §201
29 U.S.C. §621
29 U.S.C. § 2601
42 U.S.C. §12101
Age Discrimination in Employment Act (ADEA)
Family Medical Leave Act (FMLA)
Americans with Disabilities Act (ADA)

Contact Info: Director, HR - Employee Relations (919-515-4300)


1.  INTRODUCTION

1.1  North Carolina State University (NC State) has established this grievance and appeal regulation in order to comply with Office of State Human Resources requirements and to ensure the fair, orderly, and prompt resolution of various work-related disputes.

1.2  This regulation will be posted on NC State's Policies/Regulations/Rules (PRR) website and will be available in hard copy from an employing unit's personnel representative(s) or from the Human Resources Division-Employee Relations Unit.  New SPA employees will be informed of this grievance and appeal regulation during employee orientation and training sessions.  In the event there is a change to this regulation, SPA employees will be notified no later than thirty (30) days prior to the effective date of the change.

2.  COVERED PERSONS

2.1  This regulation applies to former and current employees in positions that are subject to N.C. Gen. Stat. § 126-1 et seq. (the State Personnel Act).  This regulation also applies to applicants for positions that are subject to the State Personnel Act.  A covered person's rights to maintain a grievance under this regulation will depend upon the person's status (e.g. former employee, applicant, career state employee, temporary employee) and whether the person has presented a grievable issue under the regulation.

3.  DEFINITIONS

3.1  Career State Employee:  an employee who is in a permanent position appointment and 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.

3.2  State Employee:  any employee who is not a career state employee.

3.3  Grievable Issue:  an issue that may be the subject of a grievance under this regulation based on a covered person's status and as designated specifically in section 4.

3.4  Unlawful Workplace Harassment:  unwelcome speech or conduct based upon a person's race, sex, creed, religion, national origin, age, color, handicapping condition as defined by N.C. Gen. Stat. §168A‑3 (Persons with Disabilities Protection Act), veteran's status or sexual orientation that creates a hostile work environment or involves quid pro quo.

4.  POLICY

It shall be the policy of NC State to allow covered persons with complaints to maintain a grievance for the following grievable issues:

4.1  A career state employee or former career state employee may file a grievance based on:

4.1.1  Dismissal, demotion, or suspension without pay without just cause;

4.1.2  Denial of promotion due to failure to post;

4.1.3  Failure to give promotional priority over outside applicants;

4.1.4  Failure to give reduction-in-force (RIF) re-employment consideration; and

4.1.5  Failure to give policymaking/confidential exempt status priority re-employment consideration.

4.2  Any state employee or former state employee (whether or not a career state employee) may file a grievance based on:

4.2.1  Denial of veteran's preference in connection with RIF;

4.2.2  Discrimination in the denial of promotion, transfer, or training on account of an employee's age, sex, race, color, national origin, religion, creed, political affiliation, genetic information, handicapping condition as defined by N.C. Gen. Stat. §168A et seq. (Persons With Disabilities Protection Act) or sexual orientation;

4.2.3  Demotion, RIF, or termination in retaliation for the employee's opposition to alleged discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, genetic information, handicapping condition as defined by N.C. Gen. Stat. § 168A et seq. (Persons With Disabilities Protection Act) or sexual orientation;

4.2.4  Retaliation for protesting a violation of NC State's obligations regarding equal opportunity for employment and compensation as defined by N.C. Gen. Stat. §126-16;

4.2.5  Denial of a reasonable accommodation in employment in violation of state or federal law regarding persons with disabilities;

4.2.6  Unlawful workplace harassment;

4.2.7  Denial of a request to remove inaccurate or misleading information from the employee's personnel file;

4.2.8  Any retaliatory personnel action that violates N.C. Gen. Stat. § 126-85 (Protection for Reporting Improper Government Activities);

4.2.9  An employee's position designation as policymaking under N.C. Gen. Stat. §126-5;

4.2.10  A false accusation about, or disciplinary action relating to, political threats or promises in violation of N.C. Gen. Stat. §126-14 or 126-14.1; and

4.2.11  A violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §201 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., or the Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq.

4.3  Any applicant for State employment may file a grievance based on:

4.3.1  Denial of veteran's preference in State employment;

4.3.2  Denial of employment on the basis of discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, genetic information, handicapping condition as defined by N.C. Gen. Stat. § 168A et seq. (Persons With Disabilities Protection Act) or sexual orientation;

4.3.3  Denial of a reasonable accommodation in the application process in violation of state or federal law regarding persons with disabilities.

4.4  Appeals to agencies outside of the University.

4.4.1  A career State employee (who had attained career status at the time of the act, decision or practice that forms the basis of the grievance) who is not satisfied with the University's final decision on a grievance involving any issue set forth in N.C. Gen. Stat. §126-34.1 may appeal the decision to the Office of Administrative Hearings-Hearings Division (OAH).  A non-career State employee who is not satisfied with the University's final decision on a grievance involving alleged discrimination or denial of removal or inaccurate or misleading information in his or her personnel file may appeal the decision to the OAH.  In order to appeal to the OAH, the employee must file a petition for a contested case hearing within thirty (30) calendar days after receipt of the University's final agency decision.

4.4.2  An employee alleging unlawful discrimination has the right to bypass the University's grievance procedure in order to appeal directly to the OAH.  In order to appeal to the OAH, the employee must file a petition for a contested case hearing within thirty (30) calendar days when the employee becomes aware of the discriminatory action.  Any employee who files a grievance through the University's grievance procedure must comply with the University's timeline to file a grievance.

4.4.3  An applicant for employment or a State employee who is dissatisfied with a decision pertaining to a request for a reasonable accommodation under disability law with respect to the application process or his or her employment may appeal directly to the OAH.  In order to appeal to the OAH, the employee must file a petition for a contested case hearing within thirty (30) calendar days after receipt of notice of the decision regarding the reasonable accommodation.

4.4.4  Any career State employee who has reason to believe that a promotion was denied due to the alleged failure of the University to post notice of the job vacancy pursuant to N.C. Gen. Stat. §126-7.1(a) or to give the employee State employee priority consideration pursuant to N.C. Gen. Stat. §126-7.1(c) may appeal directly to the OAH by filing a petition for a contested case hearing within thirty (30) calendar days of notice of the denial of promotion.

4.4.5  Any State employee who has reason to believe that he or she has been subject to a false accusation or disciplinary action relating to the employee's alleged violation of N.C. Gen. Stat. §126-14 or N.C. Gen. Stat. § 126-14.1 may appeal directly to the OAH by filing a petition for a contested case hearing within thirty (30) calendar days of notice of the false accusation or disciplinary action.

4.4.6  Any State employee who disputes whether his or her position has been properly designated as exempt under N.C. Gen. Stat. §126-5 may appeal directly to the OAH by filing a petition for a contested case hearing within thirty (30) calendar days of receipt of notice of the exempt designation.

4.4.7  In addition to the foregoing, a State employee making application for a promotion or an applicant for initial State employment who has reason to believe that he or she was among the most qualified persons for a position in State government employment and was denied promotion or employment in violation of N.C. Gen. Stat. § 126-14.2 because of political affiliation or political influence may complain directly through the Office of Administrative Hearings-Civil Rights Division (OAH-CRD), which shall be responsible for making an initial determination of whether there is probable cause to believe that there has been a violation of N.C. Gen. Stat. § 126-14.2.  The complaining State employee or applicant must file a complaint with the OAH-CRD within thirty (30) calendar days after the complainant receives written notice that the position in question has been filled.

5.  NON-GRIEVABLE ISSUES

5.1  Any issue that is not specified as being grievable under this policy (“non-grievable issue”) shall not be processed as a grievance and shall be dismissed.

5.2  Any non-grievable employment issue may be submitted to the Human Resources Division-Employee Relations Unit (Employee Relations) as a general complaint that may be addressed through informal investigation and/or resolution procedures.

6.  GRIEVANCE PROCEDURE

6.1  Filing Requirements:

6.1.1  Time Limits

6.1.1.1  A covered person having a grievable issue (other than unlawful discrimination) under this policy must file a grievance within fifteen (15) calendar days from the date the party becomes aware of the action or occurrence forming the basis of the grievance.  A covered person alleging unlawful discrimination must file a grievance within thirty (30) calendar days of the action or occurrence that is alleged to constitute unlawful discrimination.

6.1.1.2  For purposes of this grievance procedure, where a deadline for taking some action falls on a weekend or a University holiday, the deadline shall be the next business day following the weekend or holiday.  Failure of a party to file a grievance within the specified time limit relieves the University of any and all responsibilities under this procedure and constitutes a waiver by the party of any rights under this procedure.  The time limit for filing may be waived by the University in exigent circumstances.  In the event that a grievance is not accepted for processing based on the party's failure to file within the prescribed time limit, the matter may nevertheless be considered as a general complaint and may be addressed through informal investigation and/or resolution procedures.

6.1.2  Completion of Grievance Form

6.1.2.1  A covered person wanting to file a grievance (“grievant”) must complete and submit the SPA Employee Grievance Form in its entirety and within the specified time limit for the grievance to be accepted and further processed.  The grievant must explicitly state the grievable issue and the relief or resolution requested.  A grievant who is an employee or former employee and who is not alleging unlawful discrimination must certify on the SPA Employee Grievance Form that he or she has first discussed the issue with his or her immediate supervisor (or other appropriate supervisor where the immediate supervisor has no authority over the action being grieved) and has failed to receive the relief or resolution requested.  Upon request, a representative (Grievance Coordinator) from Employee Relations, may provide assistance to the grievant to complete the SPA Employee Grievance Form, however, the grievant is ultimately responsible for meeting all of the requirements for completing and filing the grievance form.

6.1.3  An SPA employee must be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight (8) hours for the preparation of an internal grievance, without loss of pay, vacation leave or other time credits.  Prior supervisory approval is required.  For participation in contested case hearings, or other administrative hearings, the employee may request necessary time away from work without use of annual leave or other leave credits.  This request is subject to the supervisor or unit personnel director’s approval.  The supervisor or unit personnel director determines if the leave is necessary and reasonable.  Documentation of the need for the time off may be requested by the supervisor before leave approval is granted.

6.2.  Referral of Discrimination/Harassment Allegations to Office for Institutional Equity and Diversity (OIED).

6.2.1  If a completed SPA Employee Grievance Form indicates an allegation of unlawful discrimination or harassment or retaliation relating thereto, the allegation shall be referred to (OIED) for an investigation.  Though the grievance proceedings are held in abeyance during any review or investigation by the OIED, the time for the university to render a final decision on the grievance is not tolled.  Upon completion of any investigation by OIED, OIED will forward its conclusions to the Grievance Coordinator, who will meet with the grievant in order to determine whether the grievant wants to proceed with the grievance or to voluntarily withdraw the grievance in whole or in part.  An allegation of unlawful discrimination or harassment or retaliation relating thereto may also be filed with OAH within thirty (30) days of the occurrence forming the basis of the grievance.

6.3  Representation

6.3.1  Neither party to a grievance may be represented by an attorney or other person during the internal agency grievance procedure (including at any hearing before a grievance panel) or Alternate Dispute Resolution (ADR) procedure.

6.4  Abandonment

6.4.1  A grievant, who at any step of the grievance process, fails to comply with a reasonable request for information, or with any of the procedures set forth in this regulation, (including the failure to appear at a scheduled meeting, conference or hearing), may be deemed to have abandoned his or her grievance.  The grievant will be notified that the University has deemed the grievance to be abandoned and that the matter has been administratively closed.

6.5  Time for Issuance of Final Decision

6.5.1  The University's final decision shall be issued in writing within the time limits specified below unless both parties mutually agree to additional time.  If the University's final decision is not issued within the timeframe specified below, the grievant may appeal to the OAH within thirty (30) calendar days of the applicable deadline.

6.5.2  Final decisions on grievances involving demotion or dismissal shall be issued no later than ninety (90) calendar days from the date the grievance was accepted.

6.5.3  Final decisions on grievances involving unlawful discrimination, harassment, or retaliation, shall be issued no later than 60 calendar days from the date the grievance was accepted. Should the University issue a final decision prior to the expiration of the 60-day investigation period, the University shall waive in writing its right to consider the grievance for the remainder of the 60-day period; if the grievant wishes to appeal the final decision, he or she will acknowledge the University's waiver in writing.

6.5.4  Final decisions on grievances involving any other grievable issue shall be issued no later than one hundred twenty (120) calendar days from the date the grievance was accepted.

6.5.5  The parties may mutually agree to extend the deadlines for issuance of the final decision in writing to Employee Relations prior to the deadline.

6.6  Grievance Assistants

6.6.1  Each party to a grievance may request Employee Relations to assign a grievance assistant to assist, but not represent the party during the grievance process.  The grievance assistant must be a University employee who has no active disciplinary action on file.  The grievance assistant may serve only in an advisory capacity, not as an advocate or spokesperson for the grievant or for management.  The grievance assistant may not serve as a witness in any grievance hearing.

6.6.2  A grievance assistant must have prior supervisory approval to serve.  An employee may serve as a grievance assistant no more than twice in any calendar year.

6.6.3  Management should make every effort to approve an employee's request to serve as a grievance assistant.  However, management, in its discretion, may deny the request if approving the employee to serve as a grievance assistant would interfere with the execution of the employee's job responsibilities.

6.6.4  A grievance assistant must complete the grievance assistant training as provided periodically by Employee Relations.  Employee Relations shall maintain a list of trained grievance assistants to provide to the parties upon request.

6.6.5  Information shared during the grievance process between grievance assistants and the parties shall remain confidential and shall not be divulged except as may be required by law.

6.7  Two-Step Process

6.7.1  The University employs a two-step grievance process for grievances that have been accepted for further processing.  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 panel.

6.7.2  Step One:

6.7.2.1  Step One Designee

After Employee Relations has accepted a grievance under this procedure for further processing, the grievance will proceed to Step One, which is a review by the next level of management (chain-of-command).  In cases where a department head or director was the supervisor with whom the grievant was required to first discuss his or her issue prior to filing the grievance, Step One may be waived by the agreement of both parties.  Otherwise, Employee Relations shall designate the next level of management responsible for rendering a determination at the conclusion of Step One. The Step One designee (normally the department head or director) will be provided with relevant information and instructions for carrying out Step One.  A grievant has the right to bypass Step One or to request another Step One designee at the next level of management where the Step One designee would be a person alleged to have discriminated against or harassed the grievant.

6.7.2.2  Step One Meeting

The Step One designee shall meet with the grievant within ten (10) calendar days of written notification from Employee Relations of the acceptance of the grievance.  Prior to the Step One meeting, the Step One designee shall be responsible for gathering any information relevant in reviewing the grievable issue.  The purpose of the meeting is to attempt to resolve the issue to the mutual satisfaction of the employee and management.  The Step One designee will notify Employee Relations of completion of the meeting by the end of business on the day of the meeting.

6.7.2.3  Step One Ruling

Within ten (10) calendar days of the Step One meeting, the Step One designee shall provide a written ruling to the grievant with a copy to the immediate supervisor (or other supervisor as applicable) and Employee Relations.  If necessary, the Step One designee may submit to Employee Relations a written request for an extension of time to issue the ruling.  An agreement to extend the time must be mutual between all parties.  If applicable, the Step One ruling shall include any recommendations to resolve the grievance with a time frame for implementing the recommendations.  The Step One designee shall consult with the Employee Relations if any recommendation in the ruling would deviate from University policy.  The Step One written ruling shall be hand-delivered to the grievant (where the grievant remains employed at the University); otherwise the Step One written ruling shall be sent to the grievant's address of record in a manner requiring a signature for receipt.  If the grievant is satisfied with the Step One written ruling, the grievance will be administratively closed.  Any recommendations set forth in the Step One written ruling should be implemented within the time frame specified in the ruling.  The Step One designee should give the grievant written notification that if the grievant is not satisfied with the Step One ruling or fails to receive a ruling in a timely manner, he or she may proceed to Step Two, which involves a hearing before a grievance panel.

6.7.3  Step Two:

Within five (5) calendar days of receipt or attempted delivery of the Step One ruling, the grievant must provide written notice to the Employee Relations that he or she wants to proceed to Step Two, a hearing before an SPA Grievance Panel.

6.7.3.1  Grievance Panel

Employee Relations shall maintain a pool of trained grievance panel members (both supervisors and non-supervisors) to hear grievances.  The Grievance Coordinator shall submit the names of three (3) grievance panel members and two (2) alternates to the parties at least fifteen (15) calendar days prior to the date of the hearing.  The Grievance Coordinator shall select grievance panel members based on their availability to serve, a mix of representative employees and other factors.  The grievant has the right to challenge a grievance panel member's ability to render an unbiased recommendation by submitting a written request to the Grievance Coordinator at least seven (7) calendar days prior to the scheduled date of the hearing.  The Grievance Coordinator will thereupon substitute one of the alternate members for a panel member and will notify the parties of the final compilation of the panel.  The Grievance Coordinator shall also designate one of the grievance panel members to serve as the Chair of the grievance panel.

6.7.3.2  Time and Place of Hearing

The Grievance Coordinator shall set the date, time and place of all hearings and shall inform the parties accordingly.  Requests for postponement of a scheduled grievance hearing must be submitted in writing to the Grievance Coordinator, who shall grant such requests only upon a showing of good cause.  If the grievant or management representative fails to appear at the grievance hearing or fails to provide a showing of good cause for failing to attend the grievance hearing, the grievance will be administratively closed.

6.7.3.3  Pre-Hearing

Once the date for the grievance hearing has been set, the Grievance Coordinator will direct both parties to submit the following information to the grievance panel within five (5) calendar days from notification by the Grievance Coordinator: 1) written summary of allegations (or, if management, response to the allegations); 2) documentation to support the party's position; and 3) list of witnesses to be called at the grievance hearing.  Management shall grant a grievant's request to view and/or copy his or her personnel file during business hours and with advance notice; in addition, management shall respond appropriately to a grievant's reasonable requests for any public records.  The Grievance Coordinator, if called upon to do so, has the ability to determine the reasonableness of any information requests to management from the grievant.

The Grievance Coordinator will provide each party with a copy of the opposing party's written summary, supporting documentation, and witness list no later than seven (7) calendar days prior to the grievance hearing.

The Grievance Coordinator will schedule a pre-hearing meeting with the grievance panel in order to discuss the facts of the grievance and to determine the relevancy of the testimony of potential witnesses.  In the event the grievance panel questions the relevance of the presentation of certain evidence or the testimony of a potential witness, it may require the party proposing the evidence to provide a written justification outlining the nature and relevancy of the proposed testimony.  Following a review of the justification, the Chair shall issue a ruling as to whether or not the evidence or testimony will be allowed at the hearing.

6.7.3.4  Grievance Hearing

The Chair of the grievance panel shall conduct the grievance hearing.  The Chair has the authority to prescribe the order and conduct of the hearing; determine the relevance and/or admissibility of evidence or testimony (including the exclusion of evidence or testimony if its value is substantially outweighed by its necessitating the undue consumption of time); request that a party provide testimony of additional witnesses; and to take any other action necessary to ensure a fair grievance hearing.

The hearing proceedings are confidential and are not open to the public.  Attendance at the grievance hearing is limited to the Grievance Coordinator, the grievance panel members, the parties (and their grievance assistants, if applicable), a representative from Public Safety, and witnesses.  Witnesses shall be excluded from the hearing room except for while giving testimony.

All grievance panel hearings are recorded by the Grievance Coordinator, who will forward the recordings to the Office of General Counsel upon completion of the grievance hearing process.  Either party may obtain a copy of the recording by contacting the Office of General Counsel.

Prior to the presentation by the parties, the Chair shall introduce the members of the grievance panel, explain the purpose of the hearing and the functions of the grievance panel, and describe the procedures to be followed.  Each party may make an opening statement not to exceed fifteen (15) minutes in length.

Following opening statements, the party with the burden of proof shall make the first presentation.  Each presentation should include the party's own statement and direct examination, in addition to cross-examination of witnesses by the opposing party.  The grievance panel members may ask questions of the parties or witnesses at any time.  Witnesses may not ask questions.  Each party may make a closing statement not to exceed fifteen (15) minutes.  The party with the burden of proof shall make the last statement.  The Chair shall conclude the hearing.

6.7.3.5  Post-hearing deliberations

At the conclusion of the grievance hearing, the grievance panel members shall meet in closed session to review the evidence and testimony presented.  The Grievance Coordinator will attend the post-hearing deliberations to answer any procedural questions or to clarify any personnel policy issues for the panel.  The Grievance Coordinator shall also provide assistance to the grievance panel Chair for preparation of the grievance panel report, which shall set forth the grievance panel's findings, conclusions and recommendations regarding the issue(s) presented.

The grievance panel Chair shall prepare a written report within ten (10) calendar days of the conclusion of the hearing to be submitted to the Associate Vice Chancellor for Human Resources.  Within five (5) calendar days of receipt of the written report, the Associate Vice Chancellor for Human Resources shall review the report to ensure that any recommendations are in compliance with state and University policies.  The Associate Vice Chancellor for Human Resources or designee will forward the final written report to the Vice Chancellor for Finance and Business or designee.  Within fifteen (15) calendar days of receipt of the grievance panel's report, the Vice Chancellor for Finance and Business or designee shall issue the University's final decision in writing to the parties, with a copy to the Grievance Coordinator.

7.  APPEALS OF FINAL DECISION

7.1  Career state employees who are not satisfied with the University's final decision on a grievance involving any issue set forth in N.C. Gen. Stat. §126-34.1, or any employee who alleges discrimination or the presence of misleading or inaccurate information in his or her personnel file, may file an appeal with the Office of Administrative Hearings (OAH).

7.2  Career state employees who are not satisfied with the University's final decision on a grievance involving any issue set forth in N.C. Gen. Stat. §126-34.1, or any employee who alleges discrimination or the presence of misleading or inaccurate information in his or her personnel file, may file an appeal with the Office of Administrative Hearings (OAH).