SHRA Grievance and Appeal

Policy 601.6

Introduction

1.1 Appalachian State University (ASU) has established this grievance and appeal process in order to comply with the NC State Personnel Commission rules and Office of State Personnel’s requirements and to ensure the fair, orderly, and prompt resolution of various work-related disputes.

1.2 This policy will be posted in the ASU Policy Manual and on ASU Human Resource’s website. It will be available in hard copy from Human Resources-Employee Relations Division. New SPA employees will be informed of these grievance and appeal procedures during the new employee orientation session. In the event there is a change to these procedures, SPA employees will be notified no later than 30 days prior to the effective date of the change.

Scope

2.1 This process applies to former employees and employees in positions that are subject to N.C. Gen. Stat. § 126-1 et seq. (the State Personnel Act). This process also applies to applicants for positions that are subject to the State Personnel Act. A covered person's rights to file a grievance under this process 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 process.

Definitions

Career State Employee

is 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.

State Employee

is any employee subject to the State Personnel Act and who is not a career State employee.

Grievable Issue

an issue that may be the subject of a grievance under this policy based on a covered person's status and as designated specifically in Section 4.

Hostile Work Environment

is one that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether the conduct unreasonably interferes with an individual’s work performance, academic advancement, or access to University services. Examples of conduct that could create or could contribute to hostile environment harassment may include:

1. Unwelcome jokes about disability, race, sex, sexual orientation, etc.
2. Offensive or degrading physical contact or coercive behavior, including stroking, patting or similar physical contact.
3. Pictures, posters, graffiti or written materials displayed in a workplace or classroom which are offensive or obscene.
4. Excluding individuals from meetings or University activities due to their religious beliefs or other protected class status.

Impermissible Discrimination

is failure or refusal to hire an applicant, discharge of an employee, or discrimination against an employee with respect to compensation or other terms, conditions or privileges of employment because of the applicant’s or employee’s sexual orientation or gender identity and expression.

Impermissible Workplace Harassment

is unwelcome and unsolicited speech or conduct based upon a person's sexual orientation or gender identity or expression that creates a hostile work environment or involves quid pro quo.

Quid Pro Quo Harassment

consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, academic advancement, or access to University services, or (2) submission to or rejection of such conduct by an individual is used as the basis for decisions affecting that individual related to employment, academic advancement, or access to University services.

Examples of quid pro quo harassment may include:

1. Promising a promotion or higher grade if an individual acquiesces to sexual advances.
2. Denying an employee a pay raise after the employee has declined a request for sexual favors from a supervisor.

Retaliation

is failure or refusal to hire an applicant, discharge or demotion of an employee, or other discrimination against an employee with respect to compensation or other terms, conditions or privileges of employment because that person filed a complaint about or otherwise opposed harassment or other forms of discrimination, or provided information relative to a complaint, or was involved in the complaint in any way.

Unlawful Discrimination

is failure or refusal to hire an applicant, discharge of an employee, or discrimination against an employee with respect to compensation or other terms, conditions or privileges of employment because of the applicant’s or employee’s race, color, religion, creed, sex, national origin, age, political affiliation, veteran status, disability, or genetic information.

Unlawful Workplace Harassment

is unwelcome and unsolicited speech or conduct based upon an employee’s race, sex, creed, religion, national origin, age, color, disability, veteran's status, political affiliation, or genetic information that creates a hostile work environment or involves quid pro quo.

NOTE: Unless the specific terms or context of this policy indicate otherwise, all references to “harassment” and “discrimination” include both unlawful harassment and discrimination and impermissible harassment and discrimination.

Policy and Procedure Statements

Grievable Issues

It shall be the policy of ASU to allow covered persons with complaints to file a grievance for the following grievable issues:

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

1. Dismissal, demotion, or suspension without pay without just cause;
2. Denial of promotion due to failure to post;
3. Failure to give promotional priority over outside applicants; and
4. Failure to give reduction-in-force (RIF) re-employment consideration.

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

1. Denial of veteran's preference in connection with RIF;
2. Discrimination in the denial of promotion, transfer, or training because of the employee’s race, color, religion, creed, sex, national origin, age, political affiliation, veteran status, sexual orientation, gender identity or expression, disability, or genetic information with respect to the employee; provided, however, that grievances based on discrimination because of the covered person’s sexual orientation or gender identity or expression will be resolved within the University pursuant to these policies and procedures and are not subject to review beyond the University;
3. Demotion, RIF, or termination in retaliation;
4. Violation of N.C. Gen. Stat. §126-17 (prohibition against retaliation for protesting a violation of ASU's obligations regarding equal opportunity for employment and compensation under N.C. Gen. Stat. §126-16);
5. Denial of a reasonable accommodation in employment in violation of State or federal law regarding persons with disabilities;
6. Unlawful or impermissible workplace harassment;
7. Denial of a request to remove inaccurate or misleading information from the employee's personnel file;
8. Any retaliatory action that violates N.C. Gen. Stat. § 126-85 (Protection for Reporting Improper Government Activities);
9. 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;
10. 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;
11. Failure to give policy-making/confidential exempt status priority reemployment consideration; and
12. Policy-making designation.

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

1. Denial of veteran's preference in State employment;
2. Denial of employment because of the applicant’s race, color, religion, creed, sex, national origin, age, political affiliation, veteran status, disability, sexual orientation or gender identity and expression, or genetic information with respect to the employee or; and
3. Denial of a reasonable accommodation in the application process in violation of State or federal law regarding persons with disabilities.

Grievance That Does Not Allege Unlawful Discrimination

4.2.1 An employee with a grievance that does not allege unlawful discrimination as defined by G.S. 126-16 (Equal opportunity for employment and compensation) or G.S. 126-36 (Appeal of unlawful State employment practice), that does not allege a violation of posting requirements, or denial of reduction in force rights or priority consideration rights under G.S. 126-7.1, that does not allege a denial of veteran’s preference under G.S. 126-82, or that does not allege a denial of employment or promotion in violation of G.S. 126-14.2 shall be required to first discuss the problem with the immediate supervisor. Where the grievance does not fall within the administrative or decision-making authority of the immediate supervisor, the immediate supervisor, shall within 48 hours of receipt of the grievance, refer the grievance to the lowest level supervisor with administrative or decision-making authority over the subject matter of the grievance and notify the employee of the fact of and the basis for the referral.

4.2.2 All notices of University decisions referenced in these policies and procedures must be written and contain information about applicable appeal rights, if any.

Appeals to Agencies Outside of the University

4.3.1 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 (Grounds for contested case under the State Personnel Act) may appeal the decision to the Office of Administrative Hearings (OAH). A State employee or former State employee who is not satisfied with the University's final decision on a grievance involving alleged discrimination or denial of removal of inaccurate or misleading information from the employee’s 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 with the OAH within 30 calendar days after receipt of the University's final decision.

4.3.2 An employee alleging unlawful discrimination has the right to bypass the University's grievance process 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 with the OAH within 30 calendar days after receipt of notice of the alleged discriminatory action. Any employee who files a grievance through the University's grievance process must comply with the University's timeline to file a grievance.

4.3.3 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 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 with the OAH within 30 calendar days after receipt of notice of the decision regarding the request for accommodation.

4.3.4 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 State employee priority consideration pursuant to N.C. Gen. Stat. §126-7.1(c) may appeal the University’s final decision to the OAH by filing a petition for a contested case hearing with the OAH within 30 calendar days of notice of the denial of promotion.

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

4.3.6 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 with the OAH within 30 calendar days of receipt of notice of the exempt designation.

4.3.7 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 30 calendar days after the complainant receives written notice that the position in question has been filled.

Non-Grievable Issues

4.4.1 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.

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

Grievance Procedure

Filing Requirements

4.5.1.1 A party with a grievable issue (“grievant”) other than unlawful discrimination under this policy must file a grievance within 15 calendar days from the date the grievant receives notification of the action or occurrence forming the basis of the grievance. A grievant alleging unlawful discrimination must file a grievance within 30 calendar days of the action or occurrence that is alleged to constitute unlawful discrimination. For purposes of this policy, 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 grievant 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 grievant of any rights under this procedure. The time limit for filing may be extended by mutual agreement. In the event that a grievance is not accepted for processing based on the grievant'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.

Completion of Grievance Form

4.5.2.1 A 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 the employee’s 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 from the Human Resources Division-Employee Relations Unit 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.

4.5.2.2 A grievant must be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of an internal grievance, without loss of pay, vacation leave or other time credits. Prior supervisory approval is required. Employees are not allotted time off from regular duties for preparation of external grievances or complaints unless using annual leave, bonus leave or compensatory time which has been approved by the employee’s supervisor.

4.5.2.3 Referral of Discrimination/Harassment Allegations to Office for Equity, Diversity and Compliance (EDC). If a completed SPA Employee Grievance Form indicates an allegation of unlawful or impermissible discrimination, harassment or retaliation (any of which is considered a “discriminatory act”), the allegation shall be referred to the Office of Equity, Diversity, and Compliance (EDC) for an investigation. The grievance shall be held in abeyance during any investigation by the EDC. Upon completion of any investigation by the EDC, the EDC 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, harassment or retaliation may also be filed with the State Personnel Commission within 30 calendar days after receipt of notice of the occurrence of the alleged discriminatory act forming the basis of the grievance.

Representation

4.5.3.1 Neither party to a grievance may be represented by an attorney or other person during the internal agency grievance process (including at any hearing before a grievance panel).

Abandonment

4.5.4.1 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 process, (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.

Time for Issuance of Final Decision

1. The University's final decision shall be issued 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 30 calendar days of the applicable deadline.
2. Final decisions on grievances involving suspension, demotion or dismissal shall be issued no later than 90 calendar days from the date the grievance was filed.
3. Final decisions on grievances involving unlawful discrimination or harassment shall be issued no later than 60 calendar days from the date the grievance was filed. 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.
4. Final decisions on grievances involving any other grievable issue shall be issued no later than 120 calendar days from the date the grievance was filed.

Prohibition Against Retaliation

4.6.4.1 Employees have the right to use this process free from threats or acts of retaliation, coercion, restraint, discrimination, or reprisal. Retaliation against an employee for participating in a Grievance is prohibited.

Two-Step Process

4.7.1 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.

Step One

1. Step One Designee - After the Human Resources Division-Employee Relations Unit 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, Human Resources 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 when the Step One designee is the person alleged to have subjected the grievant to harassment, discrimination or retaliation.
2. Step One Meeting - The Step One designee shall meet with the grievant within ten (10) calendar days of written notification from Human Resources 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 the Human Resources Division-Employee Relations Unit of completion of the meeting by the end of business on the day following the date of the meeting.
3. Step One Response - Within ten (10) calendar days of the Step One meeting, the Step One designee shall provide a written response to the grievant, with a copy to the immediate supervisor (or other supervisor as applicable) and the Human Resources Division-Employee Relations Unit. If necessary, the Step One designee may submit to the Human Resources Division-Employee Relations Unit a written request for an extension of time to issue the response. The request will be forwarded to the grievant, and the time for a Step One designee to provide a written response to the grievant may be extended upon the grievant’s approval of the request as initially made or subsequently modified. If applicable, the Step One response shall include any recommendations to resolve the grievance with a time frame for implementing the recommendations. The Step One designee shall consult with the Human Resources Division-Employee Relations Unit if any recommendation in the response would deviate from University policy. The Step One written response 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 response, the grievance will be administratively closed. Any recommendations set forth in the Step One written response should be implemented within the time frame specified in the response. The Step One designee must give the grievant written notification that if the grievant is not satisfied with the Step One response or fails to receive a response in a timely manner, he or she may proceed to Step Two, which involves a hearing before a grievance panel.

Step Two

1. Within five (5)calendar days of receipt or second attempted delivery of the Step One response, the grievant must provide written notice to the Human Resources Division-Employee Relations Unit that he or she wants to proceed to Step Two, a hearing before an SPA Grievance Panel.
2. Grievance Panel - The University 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 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 grievance panel will not be comprised only of supervisors, and shall contain at least 2 non-supervisory employees as part of its makeup. The grievant may disqualify up to two (2) of the initial members of the grievance panel 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.

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 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.

Pre-Hearing

1. 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 normal 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, shall determine the reasonableness of any information requests to management from the grievant and notify the parties of such determination.
2. The Grievance Coordinator will provide each party 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.
3. The Grievance Coordinator will schedule a pre-hearing meeting with the grievance panel in order to discuss the documents submitted 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.

Grievance Hearing

1. 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 or other resources); request that a party provide testimony of additional witnesses; and to take any other action necessary to ensure a fair grievance hearing.
2. 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, a representative from the University Police Department upon request of the Grievance Coordinator, and witnesses. Witnesses shall be excluded from the hearing room except when giving testimony.
3. 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.
4. 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 15 minutes in length.
5. The grievant bears the burden of proving by the greater weight of the evidence that the challenged act or decision violated an applicable State or federal law or regulation, or University policy. Following opening statements, the grievant shall make the first presentation. Each presentation should include the party's own statement and direct examination of witnesses, and opportunity for 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 15 minutes. The party with the burden of proof shall make the last statement. The Chair shall conclude the hearing.

Post-Hearing Deliberations

1. 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.
2. The grievance panel Chair shall submit a written report to the Director of Human Resources within ten (10) calendar days of the conclusion of the hearing. Within five (5) calendar days of receipt of the report, the Director of Human Resources shall review the report to ensure that any recommendations are in compliance with applicable laws and regulations, and University policies. The Director of Human Resources or designee will forward the final report to the Chancellor or the Chancellor’s designee. Within fifteen (15) calendar days of receipt of the grievance panel's report, the Chancellor or the Chancellor’s designee shall issue the University's final decision in writing to the parties, with a copy to the Grievance Coordinator. The University’s final decision shall include information about the grievant’s appeal rights, if any.

Appeals of Final Decision

4.8.1 A career State employee 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 (Grounds for contested case under the State Personnel Act), or any employee who is not satisfied with the University’s final decision in a case alleging discrimination or the presence of misleading or inaccurate information in the employee’s personnel file, may file an appeal with the Office of Administrative Hearings.

4.8.2 An employee may appeal a final decision described in section 4.8.1 to the Office of Administrative Hearings by filing a petition for a contested case hearing with the OAH [Office of Administrative Hearings, 1711 New Hope Church Road, Raleigh, North Carolina 27609-6285] within 30 calendar days of receipt or last attempted delivery of the University's final decision.