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UNIVERSITY REGULATION
PART IV – HUMAN RESOURCES
Chapter 04.08 - Dispute and Grievance Resolution

This regulation supercedes previous Regulation 04.08 as to all grievances arising on or after May 4, 1999, or in which the Step 3 filing is made on or after May 4, 1999, and to all ongoing grievances in which the grievant and the èßäÊÓƵ agree to elect to proceed under this regulation and Regents' Policy 04.08 dated May 4, 1999.

R04.08.030. Time Limits

The deadline for filing a grievance at Step 3 is 45 days from the date the grievant learned of, or should reasonably have learned of, the act or omission giving rise to the grievance, whichever is earlier. Actions should be initiated by the grievant at Steps 1 and 2 in sufficient time to allow processing prior to the Step 3 deadline.

The time periods established in this regulation should be enforced under normal circumstances. The decision-maker to whom a matter is addressed at Step 4 or above has discretion to extend or waive the deadlines to accommodate schedules or promote justice. All time limits specified in this regulation may also be extended by mutual agreement of all parties to the grievance. Any waiver must be in writing. The respondent's representative is never required to extend or waive deadlines.

(11-19-99)

R04.08.060. Definitions

Unless expressly stated otherwise, the following terms in this chapter will be given the following specific meanings. 

1. Chancellor
   
   Wherever the word "chancellor" appears, it is understood to mean a chancellor of the grievant's MAU unit or a person specifically designated in writing by the president to handle a matter or issue within the grievance process. 
2. Day
   
   A "day" is a day the MAU from which the grievance arises is open for business, even if classes are not scheduled. 
3. Dispute
   
   A "dispute" is a disagreement or complaint related to employment by an employee or group of employees of the èßäÊÓƵ that may or may not constitute a grievance.
4. Employee
   
   An "employee" includes anyone hired and placed on the èßäÊÓƵ payroll to perform work for pay for the èßäÊÓƵ, including faculty, staff and student employees. To be an "employee" an individual must meet the definition of employee at the time the grieved act or omission occurred. 
5. Final Decision
   
   A "final decision" is a decision of a chancellor or the president on a matter which is not subject to further èßäÊÓƵ review and which explains or is followed by written notification that review may be had by filing an appeal with the superior court of the State of èßäÊÓƵ within 30 days of the issuance of the decision in accordance with èßäÊÓƵ Appellate Rule 602(a)(2). 
6. General Counsel
   
   "General counsel" means the general counsel of the èßäÊÓƵ or a person specifically designated in writing by the general counsel or president to handle a matter or issue on behalf of the general counsel. 
7. Grievance
   
   A "grievance" is an allegation or complaint related to employment by an employee or a group of employees of the èßäÊÓƵ that there has been a specific violation of a Regents' Policy or a University Regulation, or a clear abuse of discretion arising from the application or administration of such policy or regulation, which directly and adversely affects the employee or group of employees. 
   1. The following are excluded from the definition of a grievance and cannot be processed under this Chapter: 
      1. complaints or disputes other than those defined above as grievances; 
      2. complaints or disputes which do not arise out of the employment relationship between the grievant or grievants and the èßäÊÓƵ; 
      3. actions of the Board of Regents; 
      4. complaints or disputes relating to a failure to appoint an employee to a position within the èßäÊÓƵ; 
      5. complaints or disputes related to the application or administration of a process that is subject to superior court appellate review. Such complaints or disputes will be resolved as part of such process.
   2. The following are governed by alternate processes and cannot be processed under this chapter: 
      1. complaints and disputes related to faculty promotion, renewal and/or tenure (see Regents' Policy and University Regulation 04.04.050); 
      2. complaints or disputes which may be grieved under a collective bargaining agreement; 
      3. complaints and disputes related to job classification (see Regents' Policy and University Regulation 04.05.030); 
      4. student allegations and complaints (see Regents' Policy and University Regulation 09.03.02); 
      5. complaints and disputes related to dismissal of at-will employees (see Regents' Policy and University Regulation 04.01.050 and 04.07.020); 
      6. complaints or disputes related to layoff (see Regents' Policy and University Regulation 04.07.110);
      7. complaints or disputes related to sex and gender-based discrimination (see Regents’ Policy and University Regulation 01.04.)
      The following are covered by this chapter with modification to one or more of the provisions herein:
      1. complaints or disputes related to financial exigency (see Regents' Policy 04.09.060 and 04.09.070); 
      2. complaints or disputes related to reasonable accommodation for people with disabilities (see Regents' Policy and University Regulation 04.02.030); 
      3. complaints or disputes related to "for cause" actions (see Regents' Policy and University Regulation 04.07.060 and 04.08.080).
   Subject to a contrary agreement of the parties, grievances of an employee which are being processed when a notice is issued to an employee of intent to terminate will be consolidated with and considered and decided as part of the pretermination proceeding. The record of such proceeding will be part of the pretermination proceeding.
8. Grievant
   
   A "grievant" is the employee or group of employees asserting a grievance. 
9. Hearing Officer
   
   The "hearing officer" is an individual, who has the experience necessary to adjudicate disputes, is appointed by the general counsel, conducts the grievance hearing and makes a recommendation to the chancellor or president.
10. Mediator
    
    A "mediator" is any appropriate neutral individual voluntarily chosen jointly by the parties to assist them in reaching a mutually acceptable resolution of the dispute or grievance. 
11. Party or Parties
    
    The "parties" to the grievance are the grievant(s) and the respondent. 
12. President
    
    Wherever the word "president" appears, it means the president of the University of èßäÊÓƵ. 
13. Respondent
    
    The "respondent" in all grievances is the University of èßäÊÓƵ. A grievance may not be directed against another employee in their individual capacity. The respondent's representative will be determined from time to time by the applicable chancellor, senior administrator, or the president, and this decision may not be contested in the grievance proceedings and is not grievable. 
14. Supervisor
    
    The "supervisor" is the individual with direct supervisory authority over the employee whose act or omission is being grieved.

(08-14-20)

R04.08.070. Dispute and Grievance Resolution Process

The following process will be used for the resolution of employment-related grievances as defined in this chapter.

In order to eliminate multiple proceedings and to expedite resolution of all related complaints, grievances that have not been finally decided when a notice of intent to discharge for cause is issued to an employee will be considered and decided as part of the pre-termination proceeding.

1. Step 1: Informal Dispute Resolution
   
   The grievant should notify the person responsible for the occurrence of the dispute and attempt resolution at the lowest administrative level having the authority to resolve the matter. The parties may use the assistance of a facilitator or mediator. 
2. Mediation
   
   Any party to the grievance may request that an appropriate individual mutually agreed to by the parties assist the parties to reach resolution of the grievance. No party is required to participate in mediation. Mediation should normally occur at an early stage of a grievance; however, requests for mediation will be considered at any step of the process.
   
   Efforts at mediation will not preclude the processing of the grievance in the manner provided by this procedure. Nor will participation in mediation excuse compliance with grievance timelines absent agreement of both parties. The mediator will have no power to compel any action by any party.
   
   Prior to mediation, the participants and the mediator are encouraged to reach a written agreement regarding confidentiality of the mediation process. The èßäÊÓƵ will provide a sample confidentiality agreement on request and will abide by an agreement making the mediation confidential for purposes of the grievance process to the extent allowed by law. 
3. Step 2: Review with Supervisor
   
   If the dispute is not resolved in Step l and the grievant elects to proceed, the grievant should discuss the dispute informally with the immediate supervisor of the person responsible for the action. If the grievant's immediate supervisor is a chancellor or the president, the grievant should only discuss the dispute with the supervisor if the grievant consents to further participation by such decision-maker in the grievance process. 
4. Step 3: Grievance 
   1. Filing 
      1. If the dispute is not resolved in Steps 1 or 2, the matter involves a grievance as defined above, and the grievant elects to proceed, the grievant must file a written grievance within 45 days of the date on which the grievant learned, or should reasonably have learned, of such act or omission, whichever is earlier. 
      2. The written grievance must be filed with the supervisor of the person responsible for the act or omission. If the grievance concerns an action or failure to act of a chancellor or the president, the grievance must be timely filed with the chancellor or president, respectively, who will be considered "supervisors" for the purposes of this section.
   2. Contents of Grievance
      
      At a minimum, the written grievance must include: 
      1. The name, title, address and work phone number of the grievant; 
      2. The name and title of the person responsible for the act or omission being grieved; 
      3. A description of the act or omission being grieved, including a clear and concise statement of the facts giving rise to the grievance, the date of the occurrence and the date the grievant learned of the occurrence; 
      4. A citation of the specific policy and/or regulation believed to have been violated, misinterpreted and/or improperly applied, and an explanation of how the policy or regulation has been violated, misinterpreted or improperly applied; 
      5. A description of the relief sought; and 
      6. The grievant's signature and the date. 
   3. Process
      
      If the grievant has not complied with Steps 1 and 2, the Step 3 supervisor may notify the grievant in writing that processing will be delayed for up to 10 days to provide an opportunity for informal dispute resolution.
      
      If the grievance is not resolved informally, the Step 3 supervisor will investigate the grievance as he/she deems appropriate and respond to the grievant in writing within 10 days from the date the grievance was presented, or the end of any informal dispute resolution period provided by this paragraph, whichever is later.
      
      If the supervisor does not respond within such period, the grievance is deemed denied. 
5. Step 4: Request for Hearing 
   1. Grievant Responsibilities
      
      If the grievance is not resolved at Step 3, the grievant may proceed with the grievance only if the grievant requests a hearing as set forth in this paragraph within 10 days of the receipt by the grievant of the supervisor's decision at Step 3, or of the date the decision was due, whichever is earlier.
      
      The grievant will present a written request for a hearing, including a copy of the written grievance and the supervisor's response, if any, to the following senior administrator:
      
      -- the provost or MAU equivalent, if the respondent’s reporting line is academic;
      -- the chief student affairs officer or MAU equivalent, if the respondent’s reporting line is student affairs;
      -- the vice chancellor for administration or MAU equivalent, if the respondent’s reporting line is administrative;
      -- the statewide chief human resources officer if the grievant is a statewide employee.
      
      If the grievance concerns an action or failure to act of the person with whom the request would be filed at Step 4 as set forth above, the request for hearing will be filed with the respective chancellor or, in the case of statewide employees, with the president.
      
      If the grievance concerns an action or failure to act of a chancellor or the president, the request for hearing will be filed with the president. 
   2. Senior Administrator Responsibilities
      
      The person with whom the request for hearing is to be filed at Step 4 will: 
      1. Promptly provide a copy of the request for hearing and all other documentation submitted with the request to the person alleged to be responsible for the act or omission, the general counsel, the applicable campus personnel director, and the statewide chief human resources officer. 
      2. Determine, within 10 days of receiving the request for a hearing, whether there is a reasonable possibility that the matter complained of was a violation of a policy or regulation or clear abuse of discretion arising from the administration of such policy or regulation as applied to the grievant, and whether the matter is grievable and has been properly filed and processed under this policy. 
      3. Grant a hearing unless a determination is made that: 
         1. there is no reasonable possibility that there has, in fact, been a violation or clear abuse of discretion arising from the administration of a policy or regulation as applied to the grievant; or 
         2. the matter is not grievable or not properly filed and processed under this Chapter, within deadlines imposed upon the grievant by Regents' Policy and University Regulation.
            
            Base the determination as to whether a hearing will be granted on a review of the written request for a hearing, all other documentation and responses submitted by the grievant, and the written responses and documentation submitted by the person alleged to be responsible for the act or omission and/or that person's supervisor. Questions may be directed to the parties to assist in the determination. 
      4. Provide a written explanation of the determination to the grievant, the person alleged to be responsible for the act or omission at issue, and the chancellor or president as applicable. Any delay in making and/or issuing this determination will not affect the outcome of the process, but a written explanation of the reason(s) for the delay will be provided.
         
         If the Step 4 decision is to dismiss the matter, notification of the dismissal will state the basis of the decision and will be transmitted to the parties and the general counsel within 5 days of the decision.
         
         The general counsel may overrule a determination dismissing a grievance without a hearing within 20 days of receipt of the determination, whether or not requested to do so by the grievant. If the general counsel overrules dismissal of a grievance without a hearing, a Step 5 hearing will be held.
         
         Notification of a Step 4 decision to hold a hearing, along with a request to the general counsel to appoint a hearing officer, will be transmitted by the person making the determination to the parties and the general counsel within 5 days of the decision.
         
         The general counsel may give the parties notice of an intent to overrule a Step 4 determination and dismiss a grievance without a hearing within 5 days of receipt of the Step 4 determination, whether or not requested to do so by a party.
         
         If the general counsel gives the parties notice of intent to overrule a Step 4 determination and dismiss a grievance without a hearing, the parties may respond within 5 days. If no response is submitted within 5 days, the grievance will be considered finally dismissed by the èßäÊÓƵ at that point. If a response is received, the general counsel will decide the matter within 5 days. If the general counsel consults with the president concerning whether a hearing should be held that will not disqualify the president as a decision-maker. A decision of the general counsel to dismiss a grievance without a hearing is the final decision of the èßäÊÓƵ. 
      5. Appointment of the Hearing Officer
         
         If the final determination is to hold a Step 5 Hearing, the general counsel will appoint a hearing officer.
      6. Disqualification of a Hearing Officer
         
         Any party may seek the disqualification of any hearing officer assigned to consider a grievance. To be valid, a request for disqualification of a hearing officer must be made at the earliest possible time. The hearing officer will consider all requests for disqualification and will rule on the question as soon as reasonably practicable. Rules pertinent to disqualification requests include: 
         1. In the absence of written consent of the grievant, current service as a representative of the èßäÊÓƵ in an adversary proceeding will require disqualification of the hearing officer.
         2. In the absence of written consent of the grievant, past or current service as a representative or advisor to the èßäÊÓƵ pertaining specifically to the grievant will require disqualification of the hearing officer. 
         3. Past or current service as a hearing officer or advisor to a èßäÊÓƵ administrator while acting as an adjudicator will not be grounds for disqualification. 
         4. Past service as a representative of the èßäÊÓƵ in an adversary proceeding will not be grounds for disqualification if the service has been completed. 
         5. A request for disqualification may be denied based upon delay, especially if the delay caused detriment to a party. 
         6. If a timely request for disqualification claiming lack of impartiality is made, the hearing officer will disqualify him/herself unless he/she expressly determines that he/she is and will be impartial. 
         7. Knowledge of circumstances or facts giving rise to the grievance is not sufficient to justify disqualification unless it precludes the hearing officer from being impartial. 
         8. The general counsel may, with or without a request to do so, disqualify a hearing officer for any reason or no reason prior to a ruling on a matter of importance in the proceeding. 
         9. The president may disqualify a hearing officer at any time. 
         10. If the general counsel consults with a chancellor or the president relative to disqualification of a hearing officer, that will not disqualify the chancellor or president from acting as decision maker.
6. Step 5: Hearing Process 
   1. Hearing Officer Responsibilities
      
      The hearing officer will conduct a formal hearing that may be preceded by prehearing proceeding(s). The process set forth with respect to Step 5 may be amended or supplemented by written agreement of the parties. The hearing officer may construe or reject any modifications of the process which are not clear and unambiguous.
      
      Otherwise, the procedures for the hearing:
      1. will be determined by the hearing officer; 
      2. will be made known to the parties; 
      3. will afford all parties to the hearing a meaningful opportunity to present their cases; and 
      4. may include an opportunity prior to an oral presentation of evidence to decide, in whole or in part, the merits of the case where the hearing officer determines there are no issues of material fact.
      Within 5 days of the conclusion of the hearing or submission of any briefing ordered by the hearing officer, whichever is later, the hearing officer should submit his/her recommended findings of fact and conclusions of law for the resolution of the matter in writing, along with all materials considered by the hearing officer in reaching his/her recommendations, to the chancellor or president. A failure of the hearing officer to do so within 5 days will not affect the outcome of the process, but a written statement of reasons for the delay will be submitted by the hearing officer to the chancellor or president before or with the findings and recommendations.
      
      The hearing officer will submit a copy of the explanation for any delay and the recommended findings and conclusions to the grievant, the person responsible for the act or omission complained of, the respondent's representative and the èßäÊÓƵ general counsel.
      
      The hearing officer's recommendations will include a statement of the grievance, the procedural history of the grievance, a statement of the issues considered by the hearing officer, the reason for the recommendation, the statement of remedy, and timelines for implementing the remedy
   2. Conduct of Hearings
      1. Pre-Hearing Conference
         
         Not less than 5 days before the hearing, the hearing officer may convene the parties for a pre-hearing conference if, in his/her judgment, such a prehearing conference would be beneficial to the parties or to the hearing officer. During the pre-hearing conference, the hearing officer may: 
         1. consider requests for disqualification of a hearing officer; 
         2. clarify and, where possible, simplify the issues to be heard; 
         3. frame the issues and allocate burden of proof; 
         4. establish the facts, to the extent possible; 
         5. provide for the exchange of documents and other information;
         6. arrange for witnesses and representatives or advisors;
         7. establish deadlines for providing appropriate materials; 
         8. determine whether the hearing will be open or closed in accordance with e. below; 
         9. review the procedures for conducting the hearing; and 
         10. conduct other appropriate business to ensure a fair, effective, and expeditious hearing. 
      2. Hearing
         
         The hearing will be conducted in such a manner as to permit the parties a reasonable opportunity to present their perspectives on the issues in dispute and to provide sufficient information for the hearing officer to make a recommendation.
         
         Parties to the grievance will be afforded a reasonable opportunity to call and examine witnesses, introduce exhibits, and ask questions of the opposing party and witnesses for the opposing party.
         
         The technical rules of evidence will not apply to the hearing. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons rely in the conduct of serious affairs. Irrelevant or unduly repetitious evidence may be excluded. The rules of attorney/client privilege apply to the same extent as in civil actions.
      3. Representatives or Advisors
         
         Any party may, but need not, be represented by any person including legal counsel. Parties using representation will be responsible for payment of all associated fees. 
      4. Record of Proceedings
         
         Hearings will be recorded by the hearing officer; however, the hearing officer will not be responsible for technical problems, and such technical problems will not affect the outcome and will not form the basis for challenge as to the adequacy of the proceedings. Any party may request copies of the tape recordings at cost. Any party may tape record the proceedings at the party's expense, provided that such recording does not unduly disrupt the proceedings. 
      5. Public and Witness Access
         
         Hearings conducted under these procedures will normally be open to the public. The hearing officer will close the hearing to the public only upon a finding that a closed hearing either is legally required or would result in a fairer and more just hearing process. The hearing officer may direct that witnesses, but not the parties and their representatives, be excluded from a hearing except while providing testimony. The deliberations of the hearing officer will be closed to the public and the parties to the grievance. 
      6. Burden of Proof
         
         The grievant bears the burden of proof in all hearings by a preponderance of the evidence. If, however, the respondent has evidence about the facts giving rise to the grievance which are not known by the grievant, the respondent may be allocated the burden of producing such evidence. The grievant bears the burden of persuasion on all issues. 
      7. Cooperation
         
         All èßäÊÓƵ personnel have the responsibility to cooperate with the grievance process and may not refuse a lawful direction of the hearing officer to disclose information. 
7. Step 6: Decision of the Chancellor or President
   
   The chancellor or president will review the recommendations of the hearing officer and adopt them in whole or in part and/or render a separate written decision within 15 days of the receipt of the recommendations. Should findings or recommendations of the hearing officer not be accepted, the decision will indicate the reasons for rejection or reversal. The decision of the chancellor or president and a copy of the recommendations of the hearing officer will be furnished to the parties, the hearing officer and the èßäÊÓƵ general counsel. In the case of a grievance filed against the president, these materials will also be provided to the chair of the Board of Regents. A decision by the president is the final decision of the èßäÊÓƵ.
   
   The written decision of the chancellor or president may: 
   1. grant relief requested by the grievant in whole or in part; or 
   2. deny relief requested by the grievant; or 
   3. award such other relief as is suitable to the matter; and/or 
   4. return the matter to the hearing officer for clarification or for the taking of further evidence as to specified issues.
8. Step 7: Discretionary Review by the President
   
   A grievant not satisfied with a decision of a chancellor may request discretionary review by the president. Such request must be in writing and must be submitted to the president within 10 days of the issuance of the decision of the chancellor. The president has no obligation to accept review or to follow any particular process if review is accepted.
   
   If the president does not grant a request for review within 20 days of the issuance of the decision of the chancellor, the decision of the chancellor becomes the final decision of the èßäÊÓƵ on the 20th day.
   
   If the president notifies the grievant within 20 days of the issuance of the decision of the chancellor that the president will review the chancellor's decision, the president will consider the record of the grievance before the hearing officer and before the chancellor and take such action as the president deems appropriate.
   
   Both the decision of the president with respect to whether to review the chancellor's decision and the president's substantive decision are final decisions and may not be grieved. A failure of the president to accept review of a decision of a chancellor may not be reviewed.

(08-17-01)

R04.08.080. Review of a Proposed Termination for Cause

1. Procedure 
   1. Written Statement In the event of a decision to terminate an employee for cause, the supervisor will provide the employee with a written statement of:
      1. the reason(s) for the planned action;
      2. a statement of the evidence supporting the reason(s) for the planned action; and 
      3. notice of the employee's right to request a hearing in accordance with policy and regulation at the time the employee is notified of the èßäÊÓƵ's intention to terminate the employee's employment. 
   2. Request for Hearing
      
      Within 5 days following receipt of the notice, the employee may request a hearing to contest the termination by submitting a written request to the regional personnel officer for the unit at which the individual is employed, or to the statewide chief human resources officer in the case of the termination of a statewide employee. The written request for a hearing may either be hand delivered, mailed, transmitted by facsimile or by electronic mail, but must be received within the specified time limit. 
   3. Hearing
      
      If a timely request is received, a hearing will be scheduled not less than 3 days from the date of the request before a hearing officer appointed by the èßäÊÓƵ general counsel.
      
      At the hearing, the èßäÊÓƵ will have the burden of proof of demonstrating by a preponderance of the evidence that just cause exists for the termination of the employee. The employee will be afforded an opportunity to present testimony and other evidence as to why the action should not be taken and may be represented by legal counsel or another advisor of the employee's choosing.
      
      The hearing will be recorded. Additionally, the other specific provisions of this Chapter will apply as appropriate to the hearing, except that continuances granted at the request of the employee will not necessarily delay the implementation of the proposed termination. 
   4. Hearing Officer Responsibilities
      
      The hearing officer will consider the evidence presented and the proposed action and submit a recommended decision within 5 days of the close of the hearing to the chancellor for the unit at which the individual is employed, or to the statewide chief human resources officer in the case of the termination of a statewide employee. The time may be extended by the hearing officer with the agreement of the parties. Absent such agreement, failure of the hearing officer to comply with this time limit will not affect the validity of the process if the employee remains in pay status. 
   5. Decision
      
      The chancellor or statewide chief human resources officer, as appropriate, will consider the recommendation of the hearing officer and issue a decision in the matter. 
2. Termination of Pay
   
   Employees will normally remain in pay status until the decision of the chancellor or statewide chief human resources officer, as appropriate, is made unless a prior proceeding affording minimum due process has been made available.
   
   Additionally, nothing in this provision will be construed to preclude the èßäÊÓƵ from suspending an employee with pay pending the outcome of this review process. 
3. Appeal of Termination Decision
   
   A party not satisfied with the decision of the chancellor or statewide chief human resources officer, as appropriate, may appeal the decision in writing to the president. Such appeal must be submitted within 10 days of the issuance of the decision.
   
   The president will consider the record before the hearing officer, the decision on appeal, and the appeal and take such action, as the president deems appropriate. The decision of the president is final.

(11-19-99)

R04.08.100. Appeal of Final Decisions Issued Under This Chapter

Pursuant to èßäÊÓƵ Appellate Rule 602(a), a final decision issued under this chapter may be appealed to the superior court for the State of èßäÊÓƵ within 30 calendar days of the date on which the decision was issued.

(05-04-99)