REG 05.25.04 – Faculty Grievance and Non-Reappointment Review

Authority: Executive Vice Chancellor and Provost

History: First Issued: May 9, 2011. Last Revised: November 22, 2019.

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 101.3.1.2[R] – Regulation on Review of Nonreappointment Decisions Under Section 604 of The Code

NCSU POL01.05.08 – Faculty and EHRA Non-Faculty Appeals to Board of Trustees
NCSU POL04.25.05 – Equal Opportunity and Non-Discrimination Policy
NCSU POL05.20.01 – Appointment, Reappointment, Promotion and Permanent Tenure
NCSU POL 05.25.01 – Faculty Grievance and Non-Reappointment Review Policy
NCSU REG 05.20.04 – Post Tenure Review of Faculty

Additional References:
Faculty Non-Reappointment Review Petition (Form 001)
Faculty Grievance (Form 002)
Mediation Result (Form 003)
Section 604 Review Checklist
Report of the 604 Non-Reappointment Review Panel
grievance-section-607-checklist-2016
Report of the 607 Grievance Panel
Official Record Checklist

Contact Info:
 Chair of the 604/607 Committee (919-515-2279); Vice Provost for Faculty Affairs (919-513-7741)


1. INTRODUCTION

This regulation (and its appendices) serves as a companion to NCSU POL 05.25.01, Faculty Grievance and Non-Reappointment Review Policy (“Policy”), and sets forth the procedures to be followed after a faculty member has filed a petition to review a non-reappointment decision pursuant to Section 604 of The Code of the UNC Board of Governors (“The Code”) (“Non-Reappointment Review” herein) or a grievance in which a faculty member seeks redress concerning general employment-related actions including post-tenure review and denial of promotion (Section 607 of The Code) (collectively “Grievance”).

2. FILING A PETITION FOR A NON-REAPPOINTMENT REVIEW OR GRIEVANCE

2.1 Filing a Petition for Non-Reappointment Review

A Faculty Non-Reappointment Review Petition must be filed within sixty (60) calendar days of notice of the non-reappointment decision and must state the grounds for the petition—specifically, a statement of the facts to support a claim that the non-reappointment decision was based on one or more of the grounds listed in section 3.1 of the Policy.  Filing occurs when the Faculty Non-Reappointment Review Petition (Form 001) which is available on the Faculty Grievance/Review website or at the Faculty Senate Office is submitted to the attention of the Faculty Grievance/Review Committee Chair (either electronically or physically at the Faculty Senate Office).  The Faculty Non-Reappointment Review Petition (Form 001) must include the name of the person(s) responsible for the alleged improper decision (the respondent(s)).  A copy of the Faculty Non-Reappointment Review Petition (Form 001) must be served on the respondent within five (5) calendar days of filing.  The Provost is a respondent in all Non-Reappointment Reviews, however, a Department Head and/or Dean may be named as a co-respondent if he/she materially contributed to the violation of rights as alleged in the petition.  No one else may be named as a respondent in a Non-Reappointment Review unless all parties agree that the addition of the person as a respondent is necessary to fully review the non-reappointment decision.

2.2 Filing a Grievance

A Faculty Grievance must be filed within sixty (60) calendar days of the alleged adverse action that is the basis of the Grievance.  Filing occurs when the Faculty Grievance (Form 002) which is available on the Faculty Grievance/Review website or at the Faculty Senate Office is submitted to the attention of the Faculty Grievance/Review Committee Chair (either electronically or physically at the Faculty Senate Office).   The Faculty Grievance Request Form (Form 002) must include the grounds for the Grievance, meaning a statement of facts to support a claim that an administrator’s decision:

2.2.1 For General Grievances: violated the law, or a university policy, regulation, or rule (PRR) and how the decision adversely affected the grievant; or

2.2.2 For Post-Tenure Review Grievances: was based on one or more of the same grounds as for a non-reappointment review (see section 3.1 of the Policy)

The Faculty Grievance Request Form (Form 002) must also include name of the administrator responsible for the alleged improper decision (the respondent).  A copy of the Faculty Grievance Request Form (Form 002) must be served on the respondent within five (5) calendar days of filing.  Persons may be named as respondents only if they were active and substantial participants in the decision being grieved.  Lastly, the Faculty Grievance Request Form (Form 002) must include the redress sought.

3. DISCRIMINATION, HARASSMENT OR RETALIATION PROVISIONS

If a Non-Reappointment Review Petition or a Grievance includes allegations of discrimination, harassment or retaliation in violation of NCSU POL04.25.05 – Equal Opportunity and Non-Discrimination Policy as a basis for the Non-Reappointment Review or Grievance, the Faculty Grievance/Review Committee Chair shall refer the matter to NC State’s Office for Institutional Equity and Diversity (OIED) for review.  The OIED shall follow the process set forth in NCSU REG04.25.02 – Discrimination, Harassment and Retaliation Complaint Procedure regarding the referral of employee complaints to the OIED through a University Grievance Procedure.  The OIED shall notify the Faculty Grievance/Review Committee Chair when the formal process has concluded.  The Faculty Grievance/Review Committee Chair shall then ask the petitioner or grievant if he/she wishes to continue with the Non-Reappointment Review or Grievance process.  

4. STEP 1 – MEDIATION

Upon the filing of a Non-Reappointment Review Petition or Grievance, (or, in cases involving discrimination, harassment or retaliation—upon the conclusion of that process), the parties will be directed to mediation.  Mediation provides the parties an opportunity to openly discuss the Non-Reappointment Review or Grievance in a neutral environment with the goal of reaching a mutually acceptable resolution.

*See Appendix A for Mediation procedures

5. STEP 2 – NON-REAPPOINTMENT REVIEW OR GRIEVANCE PANEL

5.1 Non-reappointment Reviews (Section 604)

5.1 Non-reappointment Reviews (Section 604)

If mediation is unsuccessful in resolving the issues raised in the petition, the Faculty Grievance/Review Committee Chair will form a panel to review the matter (“Review Panel”).  The  Review Panel shall make a finding as to whether it has jurisdiction over the Non-Reappointment Review, that is, the panel shall determine if the petition meets the requirements to maintain a Non-Reappointment Review (i.e., timely filed, based on one of the grounds for a Non-Reappointment Review).  The Review Panel may request information from the respondent(s) if needed to assist in determining whether the petition was timely filed. If the Review Panel determines the Non-Reappointment Review Petition was untimely 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.  If the Review Panel determines that it has jurisdiction over some or all the petition, the matter proceeds to a hearing.  If the matter proceeds to a hearing, the Review Panel’s responsibility is to create a clear, permanent record of the evidence presented at the hearing and advises the Chancellor as to whether the petitioner has proven by the preponderance of the evidence that the non-reappointment decision resulted from improper grounds as set out in section 3.1 of the Policy.  The Review Panel does not have authority to render a decision or any part of a decision; only the Chancellor has the authority to render a final decision.

*See Appendix B for Non-reappointment Review procedures

5.2 Grievances (Section 607)

If mediation is unsuccessful in resolving a grievance, the Faculty Grievance/Review Committee Chair will form a panel to review the matter (“Grievance Panel”).  The Grievance Panel shall make a finding as to whether it has jurisdiction over the Grievance, that is, the panel shall determine if the Grievance filing meets the requirements to maintain a Grievance (i.e., timely filed, based on one of the grounds for a Grievance).  If the 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 Grievance.  If the Grievance Panel determines that it has jurisdiction over some or all the Grievance, the matter proceeds to a hearing.  If the matter proceeds to a hearing, the Grievance Panel’s responsibility is to receive relevant evidence, make findings of fact on the allegations presented in the Grievance and the responses thereto, make recommended conclusions on whether the grievant has proven by the preponderance of the evidence that he/she has been aggrieved as set out in the Policy, and shall provide a recommended decision to the Chancellor.

*See Appendix C for Grievance procedures

6. OBSERVERS

Each party to a Non-Reappointment Review or Grievance may bring one observer to the hearing.  The Review or Grievance Panel Chair will confirm with each party whether he/she will be having an observer at the pre-hearing meeting.  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 also may not be witnesses for a party.

7. CONFLICTS OF INTEREST

7.1 Conflict of Interest Defined

A conflict of interest occurs in the hearing context when a member or chair of a Review or Grievance Panel (a) stands to personally gain or lose something depending on the outcome of the Non-Reappointment Review or Grievance; (b) has particular knowledge about the Non-Reappointment Review or Grievance; or (c) knows a party or a witness involved with the Grievance or Non-Reappointment Review proceeding and may be viewed as biased in hearing the matter.  The existence of a conflict of interest does not automatically disqualify a member or chair from serving on the Non-Reappointment Review or Grievance Panel (see section 7.2).

7.2 Self-disclosure/recusal

A member or chair of the Review or Grievance Panel has the responsibility to disclose any conflict of interest and to recuse himself or herself from the Panel if the conflict would affect his/her ability to decide the case in an objective manner, solely on the basis of the evidence presented and the arguments made at the hearing.

7.3 Removal of a Panel Member

The Faculty Grievance/Review Committee Chair has the authority to remove a member from serving on a Review or Grievance Panel if the Chair determines that a conflict of interest exists and the individual fails to recuse himself or herself pursuant to section 7.2.  The Faculty Grievance/Review Committee Chair shall replace the Review or Grievance Panel member with an eligible Faculty Grievance/Review Committee member as soon as is practicable.

8. DISSOLUTION OF THE NON-REAPPOINTMENT REVIEW OR GRIEVANCE PANEL

When a Review or Grievance Panel is unable to convene and hear a Non-Reappointment Review or Grievance in a timely manner, or is otherwise not functioning effectively, any member of the Review or Grievance Panel or either of the parties to the Non-Reappointment Review or Grievance may ask the Faculty Grievance/Review Committee Chair to dissolve the Review or Grievance Panel or to remove and replace any members who are delaying or otherwise impeding the Panel’s progress.  Any request to dissolve a Panel or replace a member shall be made in writing to the Faculty Grievance/Review Committee Chair, who shall make the final decision on the request.  In addition, the Faculty Grievance/Review Committee Chair, upon his or her own initiative, may dissolve the Review or Grievance Panel, or remove members who are delaying or otherwise impeding the Review or Grievance Panel’s progress.  In the event that a panel is dissolved or a member of a Review or Grievance Panel is removed, the Faculty Grievance/Review Committee Chair shall select members for a new panel or select a replacement member as soon as practicable in order to expedite the Non-Reappointment Review or Grievance process.

9. APPEALS TO THE BOARD OF TRUSTEES

Appeals of the Chancellor’s Decision on Non-Reappointment Reviews or Grievances are to the Board of Trustees (“Board”).  The first step in any appeal to the Board will be an evaluation of the faculty member’s written grounds for appeal to determine whether the issues raised on appeal fall within one of the grounds set forth below.  If the appeal does not present issues that fall within the established grounds for appeal, the Board may dismiss the appeal without further proceedings.

If the Board determines that the faculty member has set forth appropriate grounds for appeal, the Board will notify the parties of a schedule for perfecting and processing the appeal.  If the faculty member fails to comply with the schedule, the Board may extend the period for compliance for good cause shown, or it may dismiss the appeal.  The Board will issue its decision appeal as expeditiously as is practicable.

9.1 Appeals of Chancellor’s Decision on Non-Reappointment Reviews

9.1.1 A petitioner who wishes to appeal the Chancellor’s decision of a Non-Reappointment Review must file written notice of appeal with the Board of Trustees within ten (10) calendar days of receipt of the Chancellor’s decision by submitting such notice to the Chancellor, by certified mail, return receipt requested, or by another means that provides proof of delivery.

9.1.2 Appeals may be made to the Board of Trustees only on the following grounds:

  1. Material procedural error. A faculty member may allege that the hearing conducted by the Review Panel or the process followed by the Chancellor included a material procedural error that, but for the error, could have resulted in a different decision.  The Board may review allegations that the Review Panel and/or the Chancellor did not follow its own procedures and such failure materially affected the credibility, reliability, and fairness of the process.  A faculty member must demonstrate that, because of a material procedural error, he or she did not receive a fair hearing or fair review such that, but for such error, a different decision may have been reached.
  2. Clearly erroneous. A faculty member may allege on appeal that the competent evidence in the record established that the decision not to reappoint was based on an impermissible reason.  A clearly erroneous decision is one that a reasonable person could not have reached, based on the competent evidence in the record taken as a whole and the relevant controlling laws or policies.  To demonstrate that a decision was clearly erroneous, the faculty member must show that a reasonable person could not have reached the conclusion that the Chancellor reached.  Such an appeal constitutes a request that the Board review the entire record of evidence to determine whether a reasonable person could have arrived at the decision in question.  The issue is not whether the Board would have evaluated the evidence the same way and reached the same conclusion, rather, the question is whether the decision reached was a reasonable one, in light of the competent evidence.
  3. Contrary to law or policy. A faculty member may allege on appeal that, in disposing of the request for review, controlling law or University policy was disregarded, misinterpreted, or misapplied to the facts of the case.  In reviewing whether a decision was clearly erroneous, the Board considers whether the evidence introduced at the hearing and reviewed by the Chancellor is such that a reasonable fact finder could find the applicable burden of proof—preponderance of the evidence—was met by the faculty member.  The Board does not reweigh the evidence, express its independent judgment on the faculty issues, determine credibility of the witnesses, or otherwise conduct the same review that would be conducted by the Chancellor; instead, the Board views the record in the light most favorable to the judgment below and decides if the evidence in support of that decision is reasonable, credible, and of solid value, such that a reasonable fact finder could find that the non-reappointment decision is appropriate.

9.1.3 The notice of appeal should consist of a brief explanation as to why the Chancellor’s decision is in error, consistent with the grounds for appeal as set forth in section 9.1.2.

9.1.4 After review on appeal, the Board may affirm the Chancellor’s decision; or, if the Board finds that the process or decision had material procedural errors, was clearly erroneous, or was contrary to controlling law or policy, the Board may remand the matter to the Chancellor to provide for a new hearing or a supplemental review inquiry.  The remedy available on appeal of a non-reappointment decision is never an award by the Board to confer tenure/promotion or reappointment.

9.2 Appeals of Chancellor’s Decision on Grievances

9.2.1 If the Grievance Panel did not find in favor of the grievant and the Chancellor upholds the Grievance Panel’s recommended decision, the Chancellor’s decision is final and may not be appealed.  If the Grievance Panel did find in favor of the grievant and the Grievance Panel’s recommended decision includes a suggested resolution, but the Chancellor’s decision does not find 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 a 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 include a brief explanation of why the Chancellor’s decision is in error.

9.2.2 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, regulations, or rules or that the process used in deciding the grievance was materially flawed.

9.3  Board of Trustees Decision on Appeal is Final

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

APPENDIX A

Step 1 – Mediation

Mediation provides the parties with an opportunity to openly discuss the Non-Reappointment Review/Grievance in a neutral environment with the goal of reaching a mutually acceptable resolution.  The following procedures will be followed for Mediation:

  1. Upon the filing of the Non-Reappointment Review/Grievance, the Faculty Grievance/Review Committee Chair (“Chair”) shall arrange for the parties to attend mediation. The Chair shall select the mediator for the mediation.  The Chair will maintain a list of qualified individuals who have received mediation training in order to facilitate the mediation.  Mediators will not be selected from the petitioner/grievant’s or respondent’s college or department.
  2. The mediation process must be concluded within 35 calendar days from the filing of the Non-Reappointment Review Petition/Grievance unless the parties mutually agree in writing to extend the time due to extenuating circumstances. However, any extension of time shall not be more than 90 calendar days from the Non-Reappointment Review Petition/Grievance filing date.
  3. The mediation will be conducted at a date, time and location identified by the Chair after conferring with the mediator and the parties. The mediation shall be scheduled for an amount of time determined by the mediator to be sufficient.  If necessary, the mediation may be recessed by the mediator and reconvened at a later time.
  4. Only the petitioner/grievant, respondent(s), and mediator can attend the mediation. Both parties must make an effort to resolve the matter.  Failure to attend the mediation by the petitioner/grievance will result in an automatic dismissal of the Non-Reappointment Review/Grievance.  If the respondent(s) fail to attend the mediation, the matter will proceed to a Non-Reappointment Review/Grievance Panel in accordance with Appendix B or C.
  5. Attorneys and other observers may not attend the mediation. Either party may ask for a recess at any time in order to consult with an attorney or another advisor.
  6. The mediation cannot be recorded or transmitted in any format. In addition, all documents generated during the course of the mediation and any communications shared in connection with the mediation are confidential to the extent provided by law.
  7. Upon the conclusion of the mediation, the mediator will notify the Faculty Grievance/Review Committee Chair of the outcome (either resolution or impasse). The mediator will submit the Mediation Result (Form 003) to the Chair.
  8. If the Non-Reappointment Review or Grievance is resolved at the mediation, but the respondent fails to implement the agreed-upon resolution within 30 calendar days of mediation, the petitioner or grievant shall notify Faculty Grievance/Review Committee Chair and request that the matter proceed to a Non-Reappointment Review/Grievance Panel in accordance with Appendix B or C.

APPENDIX B

Step 2 – Non-Reappointment Review Process

Unless a Non-Reappointment Review Petition is withdrawn or resolved at mediation, the following procedures will be followed:

Non-Reappointment Review Panel

  1. Within fifteen (15) calendar days after receiving a notice of impasse from the mediator, the Faculty Grievance/Review Committee Chair (“Chair”) shall take steps to form a panel to review the matter (“Review Panel”).  The Chair will select four members of the Faculty Grievance/Review Committee to serve on the Review Panel.  The Review Panel shall include only tenured professors and tenured associate professors and shall not include any faculty member who has participated in the decision that is the subject of the Non-Reappointment Review. The Chair shall select the chair of the Review Panel from among the four members (“Panel Chair’).   The Chair shall request that legal counsel be assigned to the Review Panel from the Office of General Counsel to provide advice on procedural matters and substantive law.
  2. When contacting potential Review Panel members, the Chair shall inquire whether the proposed members have any conflicts of interest with any of the parties such that they could not maintain objectivity in the process.  (See Section 7 regarding conflicts of interest).

Notification to Parties of Prospective Panel Members and Challenge for Cause

  1. The Chair shall notify both parties in writing of the proposed members of the Review Panel.
  2. Upon receipt of the notification of the proposed Panel members, each party shall have five (5) calendar days to notify the Chair in writing whether the party requests the removal of any proposed member(s) from the Review Panel for cause.
  3. A party requesting removal of a proposed member of the Review Panel for cause must specify the reasons for removal.  Within ten (10) calendar days of receipt of the request, the Chair shall determine whether a proposed member should be disqualified for cause.  The Chair’s decision regarding removal, along with the written request, will be made a part of the Official Record.  The Chair shall replace a proposed Review Panel member who is removed for cause with another eligible member of the Faculty Grievance/Review Committee as soon as practicable and notify the parties.  The Chair shall provide the petitioner and respondent(s) with the names of the Panel Chair and members of the Review Panel.

Providing Documentation and Scheduling Initial Meeting of the Review Panel

  1. The Chair shall provide the Panel Chair with a copy of the Faculty Non-Reappointment Review Petition.  The Chair shall also provide a copy of the Non-Reappointment Review Petition to the Office of General Counsel and the Provost’s Office.  At this point, the Chair’s involvement in the Non-Reappointment Review ends and the Panel Chair oversees the process.
  2. Upon receipt of a copy of the Non-Reappointment Review Petition, the Panel Chair will schedule the initial meeting of the Review Panel, and notify the assigned legal counsel of the meeting date.

Review Panel’s Initial Meeting:  Determination of Jurisdiction

  1. The Review Panel shall review the Non-Reappointment Review Petition to determine if it has jurisdiction over the Non-Reappointment Review, that is, the Review Panel shall determine if the Non-Reappointment Review Petition was timely filed and if the petitioner has stated proper grounds for the Non-Reappointment Review as provided for in section 3.1 in the  NCSU POL 05.25.01 – Faculty Grievance and Non-Reappointment Review Policy (including whether the named respondent is an appropriate party to the Non-Reappointment Review).  If the petitioner has not provided sufficient information to show that the matter may be heard, the Review Panel may dismiss the matter or request additional information from either the petitioner or the respondent if it appears likely that such information could inform the jurisdictional decision.
  2. If the Review Panel determines there is no jurisdiction to hear the Non-Reappointment Review, the Panel Chair shall compile the record and submit a report recommending dismissal of the Non-Reappointment Review, and the reasons for such decision, to the Chancellor and the Faculty Review/Grievance Committee Chair; copies of the report shall be provided to the parties.
  3. If the Review Panel determines there is jurisdiction over all or part of the Non-Reappointment Review, the Panel Chair shall notify the parties in writing of the jurisdictional decision and the reasons for such decision.

The following procedures apply when the Non-Reappointment Review Panel determines there is jurisdiction over all or part of the Petition for Non-Reappointment Review:

  1. In cases where the Review Panel determines it has jurisdiction in the matter, the Panel Chair shall notify the respondent(s) to file a written response to the petition for Non-Reappointment Review Petition with the Panel Chair (and copy to the petitioner) within ten (10) calendar days of the receipt of the decision on jurisdiction by the respondent(s).  The response shall include a brief statement of facts for each element of the Non-Reappointment Review Petition that the respondent denies and should name the respondent’s observer, if any.  For good cause, the Panel Chair may grant an extension of time for the respondent(s) to file a written response.  Any request for an extension of time must be submitted in writing to the Panel Chair within the original ten (10) calendar day response timeframe.

Pre-Hearing Meeting – (Panel Chair and Parties Only)

  1. The Panel Chair shall consult with the parties to schedule a pre-hearing meeting.  The pre-hearing meeting is intended generally to handle preliminary matters and to establish expectations for the hearing.  The Panel Chair does not hear evidence or arguments about the merits of the matter at the pre-hearing meeting.  The Panel Chair will also instruct the parties to provide a proposed witness list, including a brief description as to what each witness will be expected to testify to and an estimated time for each witness’s testimony, at the pre-hearing meeting.
  2. At the pre-hearing meeting, the Panel Chair shall confirm the names of the parties’ observers (if applicable), establish the date, time, and location for the hearing when the parties and all Panel members are available, and instruct the parties that it is their responsibility to secure the availability of their witnesses for the hearing.  The Panel Chair may also make procedural rulings with respect to the hearing such as the number of witnesses that may be called by a party, the length of each party’s presentation, etc.  In addition, the Panel Chair may explore whether the parties can agree to any stipulated facts or other items that can reduce the time required to hear the matter.  If the parties are able to agree to any stipulations, such document should be introduced as a joint exhibit by the parties at the onset of the hearing.
  3. The Panel Chair shall instruct the parties to exchange proposed exhibits a certain amount of time prior to the hearing (the exchange should be at least five (5) calendar days before the hearing).  On the specified date, one hard copy of a party’s proposed exhibits must be exchanged with the other party, with a copy also provided to the Panel Chair.  The parties and the Panel Chair may agree to another format (i.e., e-mail with pdf attachments, thumb drive, disk, etc.) for the exchange.  Proposed exhibits should be marked sequentially by each party on the front page (i.e. Petitioner Exh. 1, Respondent Exh. 1) and the pages of each exhibit should be numbered for easy reference.  The Panel Chair shall not share the exhibits with the other members of the Panel at this point in time.

Non-Reappointment Review Hearing

  1. The purpose of the hearing is to provide the parties with the opportunity to present their respective cases to the Review Panel.  Generally, the hearing consists of four parts: 1) opening statements; 2) petitioner’s case; 3) respondent’s case; and 4) closing statements.  The Panel Chair has the authority and discretion to oversee the hearing process.  The hearing shall be closed to the public and witnesses to the proceeding shall be sequestered until such time as they testify.
  2. Hearings will be closed to the public.  The parties may bring an observer in accordance with section 6 of NCSU REG 05.25.04 (Faculty Grievance/Non-Reappointment Review Procedures).  The observer may not actively participate (including active “coaching” of the party) during the hearing.  Should a party desire to consult with his or her observer, the party may request a brief recess.  It is in the discretion of the Panel Chair to grant any requested recess.
  3. The Panel Chair shall exercise control over the proceedings to avoid repetitive information and to achieve orderly completion of the hearing. The Panel Chair may exclude any person, including the petitioner or respondent, who disrupts the hearing.
  4. Hearings shall be recorded by a court reporter.  The recorded transcript shall become part of the official record of proceedings.
  5. Prospective witnesses, other than the petitioner and respondent, will be sequestered at the beginning of the hearing and excluded from the hearing during the testimony of other witnesses.  In addition, all parties and witnesses shall be excluded during the Review Panel deliberations.
  6. Upon timely request by a party or a witness and for good cause, the Panel Chair may allow for testimony to be presented through closed-circuit or web-based technology (particularly where a party or witness would otherwise be unable to participate in the hearing).  Testimony through this mode is at the sole discretion of the Panel Chair.
  7. The formal rules of evidence or civil procedure shall not apply in Non-Reappointment Review hearings.  Unduly repetitious or irrelevant information or witnesses may be excluded by the Panel Chair.  Hearsay information may be presented unless the Panel Chair determines it is too unreliable. The opposing party shall have an opportunity to rebut any hearsay information.
  8. The Review Panel may take notice of commonly known information within the general experience of University faculty members, provided that the respondent is informed of any such information and given an opportunity to address it at the hearing.
  9. The Review Panel’s deliberations take place in closed session after the hearing phase has been completed.  The Panel Chair does not vote, and only serves to oversee the deliberations.  The Review Panel’s legal advisor will observe deliberations, and may answer questions from or otherwise advise the Review Panel members of applicable University polices, regulations and rules or relevant law; the legal advisor will not participate in discussions or attempt to influence the outcome of the hearing.  The Review Panel should consider all of the competent evidence presented by the parties in support of their respective positions; evaluate conflicting evidence and place appropriate weight on the evidence; vote on whether the petitioner met the burden of proving his/her case by a preponderance (greater weight of) the evidence; and should make findings that resolve the material issues presented and provide a recommendation regarding the disposition of the matter.
  10. The Panel Chair is responsible for drafting the report of the Review Panel. A dissenting member of the Review Panel may include a minority report, which is attached to the primary report.  The Panel Chair is also responsible for working with the Faculty Senate administrative staff to compile the official record of the Non-Reappointment Review.
  11. The Panel Chair shall provide the report and the official record to the Chancellor within fourteen (14) calendar days after receipt of the transcript from the court reporter.  The Panel Chair shall also provide a copy of the report to the Faculty Grievance/Non-Reappointment Review Committee Chair and to both parties.
  12. The sequence of a Non-Reappointment Review Hearing shall be as follows:

(a) The Panel Chair shall remind the parties and their witnesses of the expectation for truthfulness and confidentiality, swear or affirm them, then sequester the witnesses in the case.

(b) The Panel Chair shall allow both the petitioner and the respondent(s) to make a short, opening statement summarizing their cases.

(c)  The petitioner shall present his or her case, including any witnesses.  The Review Panel and respondent may question the petitioner and witnesses during the presentation.

(d)  Following the petitioner’s presentation of evidence, the Review Panel shall excuse all others present and go into closed session.  The Review Panel shall determine whether the petitioner has presented sufficient evidence at that point –that if assumed true–would establish that the non-reappointment was based upon material deviations in the process or was based on impermissible reason for non-reappointment.

(e) If the Review Panel decides that the petitioner has not met his/her burden, the Review Panel shall notify the parties and terminate the proceedings (such determination would result in confirmation of the non-reappointment decision).  The Panel Chair shall compile the official record and submit a report to the Chancellor recommending dismissal of the petition.  The Panel Chair shall also provide a copy of the report to the Faculty Grievance/Non-Reappointment Review Committee Chair and to both parties.  If the Review Panel has determined that the petitioner has met his/her burden, the hearing shall proceed as described below.

(f) The respondent shall present his or her case including any witnesses.  The Review Panel and petitioner may question the respondent and witnesses during the presentation.

(g) Questions from the parties shall be directed through the Panel Chair to the extent possible.  The Panel Chair may limit questioning that is redundant, irrelevant, or abusive.

(h) The petitioner and respondent may make a closing statement.  A closing statement is a short summary of the information previously presented, and conclusions the speaker wishes the Non-Reappointment Review Panel to draw from the information.

(i)   The Review Panel will enter into closed session for deliberation.  A decision will be made by majority vote.  Only the Panel members and the Panel’s legal advisor may be present at deliberations.  Deliberations are not recorded.

Chancellor’s Decision

  1. The Chancellor shall base his or her decision on a thorough review of the official record evidence from the hearing and the Review Panel report recommendations.  While the Chancellor should give appropriate deference to the Review Panel’s recommendations, the final campus-based decision is the Chancellor’s.  If the Chancellor is considering taking an action that is inconsistent with the recommendation of the Review Panel, the Chancellor should consult with the Review Panel—either in person or in writing—before making a decision.  The Chancellor’s decision shall be provided to the parties in writing; the notice of the decision is to be conveyed to the faculty member by a method that produces adequate evidence of delivery.  Every attempt will be made for the Chancellor to complete and deliver the decision within 30 calendar days following receipt of the official record and Review Panel report.
  2. The Chancellor’s decision shall inform the petitioner (1) of the permissible grounds for appeal to the Board of Trustees; (2) that any appeal must be filed with the Board of Trustees (with a copy to the Chancellor and the respondent(s)) within ten (10) calendar days of receipt of the Chancellor’s decision; (3) that a simple written notice of appeal with a brief statement of the basis of the appeal is all that is required to file the appeal; and (4) a detailed schedule for the submission of relevant documents will be established by the Board of Trustees if the notice of appeal is received in a timely manner.

APPENDIX C

Step 2 – Grievance Process

Unless a Grievance is withdrawn or resolved at mediation, the procedures for the Non-Reappointment Review Process, outlined in Appendix B, will be followed for the Grievance Process, except that “grievant” shall be substituted for “petitioner,” and “Grievance” shall be substituted for “Non-Reappointment Review.”  In addition, the below provisions shall be substituted for the corresponding above-numbered sections:

Grievance Panel

  1. The Faculty Grievance/Review Committee Chair (“Chair”) will form a panel to review the matter (“Grievance Panel”).  The Chair will select four members of the Faculty Grievance/Review Committee to serve on the Grievance Panel.  The Chair shall select the chair of the Grievance Panel from among the four Grievance Panel members (“Panel Chair’).  When the Grievance pertains to a decision not to promote to the rank of tenured professor, the Grievance Panel shall include only tenured professors and shall not include any faculty member who has participated in the promotion review that is the subject of the Grievance.  If the respondent of a Grievance is the head of a department and/or dean of the college in which the grievant holds his/her appointment, the Grievance Panel shall not include faculty members from the respondent’s department (in the case of the head) or college (in the case of the dean).  The Chair shall request that legal counsel be assigned to the Grievance Panel from the Office of General Counsel to provide advice on procedural matters and substantive law.

Grievance Panel’s Initial Meeting:  Determination of Jurisdiction

  1. The Grievance Panel shall review the Grievance to determine if it has jurisdiction over the Grievance, that is, the Grievance Panel shall determine if the Grievance was timely filed, if the grievant has met the pre-requisites for filing the Grievance, and if the grievant has stated proper grounds for the Grievance as provided for in section 4.1 in the  NCSU POL 05.25.01 – Faculty Grievance and Non-Reappointment Review Policy (including whether the named respondent is an appropriate party to the Grievance).  If the grievant has not provided sufficient information to show that the matter may be heard, the Grievance Panel may dismiss the matter or request that the grievant or the respondent provide additional information if it appears likely that such information could help inform the jurisdictional decision.

Grievance Hearing

  1. Following the grievant’s presentation of evidence, the Grievance Panel shall excuse all others present and go into closed session.  The Grievance Panel shall determine whether the petitioner has presented sufficient evidence at that point –that if assumed true–would establish that the administrator’s decision (for general grievances) violated the law, or a university policy, regulation or rule and that decision adversely affected the grievant, or (for post-tenure review) was based upon material deviations in the process or was based on impermissible reason.