Staff Employee Mediation, Grievance, and UPPS No. 04.04.41

Complaint Policy Issue No. 14

Effective Date: 02/03/2012

Review: April 1 E4Y

01. POLICY STATEMENT

01.01 This UPPS provides policies and procedures for staff employee mediation, grievances and complaints except for the following:

a. UPPS No.04.04.42, Prohibition of Sexual Harassment, contains procedures for complaints or allegations of sexual harassment. Racial harassment and illegal discrimination on the basis of race, color, national origin, age, religion, sex, disability, veterans’ status, or sexual orientation (and any resulting disciplinary action) are included in UPPS No. 04.04.46, Prohibition of Discrimination or Harassment Based on Race, Color, National Origin, Age, Sex, Religion, Disability, Veterans’ Status, or Sexual Orientation.

The mediation procedures of this UPPS do not apply to complaints covered by UPPS Nos. 04.04.42 and 04.04.46 which contain the remedies for these types of complaints.

b. Grievances of involuntary terminations of employment by administrative officers are covered by Section 3.2 of Chapter V, of the Rules and Regulations of the Board of Regents, The Texas State University System (TSUS).

02. DEFINITIONS

02.01 Mediation: Mediation is a form of alternative dispute resolution outside of the university’s formal grievance and complaint processes in which an impartial person, a mediator, facilitates communication between disputing parties to promote reconciliation, settlement, and understanding.

02.02 Complaint: A complaint is any disagreement affecting an employee's wages, hours of work, or conditions of work other than a grievance. Appeals of oral and written reprimands and non-disciplinary terminations are also considered complaints. Appeals of “at-will” terminations will also be addressed through the complaint process.

02.03 Grievance: A grievance is an appeal of the following disciplinary actions: suspensions without pay, reductions in pay, demotions, or discharges.

NOTE: If disciplinary action is imposed on an employee for illegal discrimination or harassment on the basis of race, color, national origin, age, sex, religion, disability, veterans’ status, or sexual orientation, the employee may appeal only the severity of the disciplinary action.

02.04 Grievance Review Board: A Grievance Review Board is a temporary committee that is convened to investigate the details of a specific grievance and render findings and recommendations to the appropriate vice president. A Grievance Review Board is convened when 1) a grievant appeals a determination provided on a Step Two Grievance Form, or 2) an employee files a grievance as a result of an involuntary termination.

02.05 Staff Employee: A staff employee is any employee other than a student employee or a faculty employee as defined in the Rules and Regulations of the Board of Regents, The Texas State University System.

02.06 Director of Human Resources: The term "director of Human Resources" means either the director or a representative appointed by the director.

02.07 Director: For the purposes of this policy, this term describes the director with line authority for the employee involved in the action or condition against which the grievance or complaint is filed. Director indicates a staff position identified as a “director” in the University Pay Plan.

02.08 Dean: For the purposes of this policy, this term describes the position with line authority over a college and its academic chairs, faculty, and other staff and is identified as “dean” in the University Pay Plan.

02.09 Vice President: For the purposes of this policy, this term describes the vice president with line authority for the employee involved in the action or condition against which the grievance or complaint is filed and is identified as “vice president” in the University Pay Plan.

02.10 Employment At-Will: Staff employees serve without fixed terms and at the pleasure of the president or Board of Regents. As “at-will” employees, either the university or the staff employee may terminate the employment relationship at any time with or without cause and without liability for failure to continue the employment.

03. MEDIATION PROCEDURES

03.01 The Mediation Process: The mediation process will follow the procedures contained in the Mediation Guidelines for Staff found on the Human Resources Website. Both regular and non-regular staff employees may use mediation (see UPPS No. 04.04.03, Staff Employment, for a definition of "non-regular" employees).

03.02 Participation is Voluntary: While the university encourages mediation, participation is voluntary and both parties must agree to the process.

03.03Confidentiality: Human Resources will retain information pertaining to mediation and may share it with supervisory officials managing the employees involved as well as any other university official Human Resources deems appropriate.

03.04 The Mediator: When mediation is requested and agreed to by the mediating parties, Human Resources will secure certain administrative record data and the services of a trained mediator to facilitate the mediation of the conflict or dispute at no expense to the mediating parties.

03.05 Time Limits:

a. Requests for mediation are subject to the same ten working day time limit for complaints and grievances as specified in Section 04.05.

b. The staff member has five working days after receipt of 1) the mediator notification to all parties involved and Human Resources that the mediation has failed, or 2) notification from Human Resources that one party has declined the mediation to pursue a grievance or complaint.

03.06 Failed Mediation: Mediation fails when any party declines the mediation process, declines further participation once the process has begun, or the mediator notifies all parties and Human Resources in writing of failure to reach an acceptable mediation agreement.

04. GRIEVANCE AND COMPLAINT PROCEDURES

04.01 Regular employees may use the grievance or complaint procedures as appropriate within time limits as noted below. Non-regular employees are not eligible to use the grievance procedure and must use mediation or complaint procedures to resolve problems relating to wages, hours of work, and conditions of work (see UPPS No. 04.04.03, Staff Employment, for a definition of "non-regular" employees). Non-disciplinary terminations of non-student, non-regular employees are not grievable.

04.02 Informal Resolution: Staff employees should discuss work-related problems with their supervisors. Employees and supervisors should cooperate to resolve problems efficiently and informally. An employee may use these grievance and complaint procedures only if he or she has first discussed the problem with the supervisor and they are unable to resolve the problem informally. The employee should begin informal resolution as soon as possible, and supervisors need to respond promptly to the employee's request for resolution.

Attempts at informal resolution do not change the ten working day time limit for filing grievances and complaints as discussed in Section 04.05. If for any reason informal resolution is not obtained within the ten working day time limit, the employee must file a grievance or complaint as appropriate within the ten working day time limit if he or she wants to pursue such action.

04.03 Complaint Procedures Distinguished: Employees should use the same procedures for resolving complaints as for resolving grievances except that a Grievance Review Board will hear only grievances and not complaints.

04.04 Due to the organizational structure in areas where an associate or assistant vice president functions as the head of the department (examples: Library, Facilities Department and the Treasurer’s office), the appropriate vice president may designate these officials as the first level of review of a personnel action that results in an employee filing a grievance or complaint.

In academic departments, the dean over the academic department will serve as the first level of review for all grievances and complaints. The provost will serve as the second and final level of review.

The appropriate assistant or associate divisional vice president will initially address all other staff complaints and grievances within the office of the provost and vice president for Academic Affairs.

If a complaint or grievance is filed against an assistant or associate vice president, or dean, the divisional vice president will serve as the first and only level of review.

04.05 Step One: Within ten working days after learning of the action or condition giving rise to the grievance or complaint, the employee must present the incident's details on a Step One Grievance/Complaint Form to the director of Human Resources. The director will not attempt to resolve the problem, but will meet with the employee to review the information presented and classify the problem as a grievance or complaint. The director will also assist the employee in clarifying the issues, answer the employee's policy and procedure questions, and explain the process. The director will complete and sign the Step One Form and return it to the employee.

04.06 Step Two: Within two working days after receiving the signed form from the director of Human Resources, the employee must present the Step One and Step Two Forms and attachments to their director or dean and send copies to the director of Human Resources. The director or dean must meet promptly with the employee to discuss the issues and attempt to resolve the problem. The director or dean should also consult with and advise his or her supervisor.

a. As part of the process, the director or dean should investigate the issues thoroughly, conducting meetings and interviews, and using the Human Resources Checklist for Investigating a Grievance or Complaint.

b. The director or dean must inform the employee of his or her decision in writing on the Step Two Form within five working days of its receipt. The director or dean must send a copy of his or her decision to the director of Human Resources.

04.07 Step Three – Complaints:

a. If the decision of the director or dean is unacceptable to the employee, the employee must, within five working days after receipt of the decision on the Step Two Form:

1) present a Step Three Complaint Form to the appropriate vice president, attaching copies of the completed Step One Form and Step Two Form; and

2) present copies of the Step Three Complaint Form and attachments to the director or dean and to the director of Human Resources.

b. The vice president will consider the complaint and investigate in a manner deemed appropriate (see the Human Resources Website for checklist for investigating a grievance or complaint).

c. The vice president must inform the employee of his or her decision in writing on the Step Three Form within five working days of its receipt. The vice president will send copies of his or her decision to the director or dean and to the director of Human Resources. The decision of the vice president is final.

04.08 Step Three – Grievances:

The Step Three process, detailed below, addresses an appeal of suspensions without pay, reductions in pay, and demotions. Appeals of involuntary terminations are addressed in Section 04.09, Grievances (Involuntary Termination), below.

a. If the decision of the director or dean is unacceptable to the employee, the employee must, within five working days after receipt of the decision on the Step Two Form:

1) present a Step Three Grievance Form to the director of Human Resources to send to the appropriate vice president via a Grievance Review Board, attaching copies of the completed Step One Form and Step Two Form; and

2) present copies of the Step Three Grievance Form and attachments to the director or dean.

b. The director of Human Resources will inform the vice president of the general nature of the grievance.

c. The director of Human Resources will obtain the names of the Grievance Review Board members appointed by the president and the chair of the Staff Council (see Section 06).

d. The director of Human Resources will forward copies of the Step Three Grievance Form and attachments to each member of the Grievance Review Board within five days of receiving the Board members’ names.

e. The Grievance Review Board will meet with the grievant within ten working days after receiving the Step Three Grievance Form and attachments. The Grievance Review Board will consider the grievance, investigate in an appropriate manner, and present its report to the vice president within five working days after its initial meeting with the grievant (refer to the Human Resources Website for instructions on proper format). Within one business day, the Grievance Review Board will also present a copy of its report to the director of Human Resources. Upon receipt, the director of Human Resources will distribute copies of the report to the grievant and the grievant’s director, associate vice president or dean as appropriate.

f. The vice president will consider the grievance and the Grievance Review Board’s recommendations, and may meet with the employee, management representatives, and other appropriate persons.

g. The vice president must inform the employee of his or her decision on the Step Three Grievance Form within five working days after receiving the Grievance Review Board’s recommendations. The vice president must send a copy of the form to the director of Human Resources who will distribute copies to the grievant, the grievant’s director or dean, and members of the Grievance Review Board. The vice president's decision is final.

04.09 Grievances (Involuntary Termination):

a. Within ten working days after receiving notice of the involuntary termination, the employee must present a Step Three Grievance Form (Involuntary Termination) with attachments to the director of Human Resources to send to the appropriate vice president via a Grievance Review Board.

b. The director of Human Resources will inform the vice president of the general nature of the grievance.

c. The director of Human Resources will obtain the names of the Grievance Review Board members appointed by the president and the chair of the Staff Council (see Section 06).

d. The director of Human Resources will forward copies of the Step Three Grievance Form and attachments to each member of the Grievance Review Board within five days of receiving the Board members’ names.

e. The Grievance Review Board will meet with the grievant within ten working days after receiving the Step Three Grievance Form and attachments. The Grievance Review Board will consider the grievance, investigate in an appropriate manner, and present its report to the vice president within five working days after its initial meeting with the grievant. Refer to Section 07.02 for instructions on the proper format. Within one business day, the Grievance Review Board will also present a copy of its report to the director of Human Resources. Upon receipt, the director of Human Resources will distribute copies of the report to the grievant and the grievant’s director, associate vice president or dean as appropriate.

f. The vice president will consider the grievance and the Grievance Review Board’s recommendations, and may meet with the employee, management representatives, and other appropriate persons.

g. The vice president must inform the employee of his or her decision on the Step Three Grievance Form within five working days after receiving the Grievance Review Board’s recommendations. The vice president must send a copy of the form to the director of Human Resources who will distribute copies to the grievant, the grievant’s director or dean, and members of the Grievance Review Board. The vice president's decision is final.

05. RULES FOR GRIEVANCES AND COMPLAINTS

05.01 One Subject and Forms: An employee may present only one subject in each grievance or complaint. He or she must use the appropriate forms, and must include: 1) a clear statement of the problem; 2) a description of the event that gave rise to the problem, including its date and location; 3) the identity of persons involved; and 4) the relief sought. A director or dean who receives a Step Two Form that does not have a Step One Form attached and signed by Human Resources should refer the employee to Human Resources. Once submitted, the employee cannot amend the forms or the attachments unless the reviewing authority agrees to the amendment.

05.02 Time Limits:

a. Since it is important to resolve problems as rapidly as possible, persons involved should consider time limits in this procedure as maximums. They should strive to expedite the process.

b. An employee must present his or her grievance or complaint to the director of Human Resources within ten working days after learning of an action or condition giving rise to the grievance or complaint. Although the parties involved may still resolve the matter informally, they may not use the formal procedures in this UPPS after that time.

1) A Grievance Review Board may only consider grievances filed within the appropriate time limits.

2) The parties may, by written agreement, extend or shorten time limits at any step in the process. The director of Human Resources may extend time limits at any step in the process for good cause.

3) If management fails to act within the time limits stated in this UPPS, the employee may proceed to the next step in the process.

05.03 Representatives: In accordance with Section 617.005 of the Texas Government Code, an employee may present a grievance or complaint individually or through a representative who does not claim the right to strike. The employee may name this representative by entering the representative's name on the proper Representative Certification Statement. As the employee’s representative, the designee may both speak and observe during the proceedings. However, the Board may remove a disruptive representative from the premises and not allow further opportunity to represent the grievant.

The director of Human Resources must receive the Representative Certification Form at least three working days prior to the first meeting that the representative will attend. The director of Human Resources will certify receipt of the properly completed and signed form. After certification by the director, the employee must include this form with the materials presented at each step in the process.

If the form is certified after submission of the grievance or complaint materials to the director or dean, chair of the Grievance Review Board and vice president, the employee must provide a copy of the certified form to the director or dean, chair of the Grievance Review Board and vice president, as appropriate, no later than one working day prior to any meeting the representative will attend.

Administrators and Grievance Review Board members may only meet with representatives certified by the director of Human Resources.

a. If the representative is representing the employee on behalf of an organization, the representative must have an organization officer complete and sign a Representative Certification Statement (Employee Organization Representative) and submit it to the director of Human Resources.

b. If the representative is not representing the employee on behalf of an organization, the representative must complete and sign a Representative Certification Statement (Non-Employee Organization Representative) and submit it to the director of Human Resources.

05.04 Time Off for Grievances and Complaints: Grievants and complainants are permitted time off from their regular duties with pay to attend meetings under this process. These meetings include conferences with representatives of Human Resources and supervisors and meetings of the Grievance Review Board. The employees should notify their supervisors in writing when meetings are scheduled. These meetings do not include meetings with attorneys or those selected to represent the grievant.

a. Employees are not allowed time off with pay to research or otherwise prepare for grievances or complaints. They may, however, take annual leave, compensatory leave, or leave without pay under normal leave procedures for these purposes.

b. Employees who serve as representatives in grievances and complaints must take annual leave, compensatory leave, or leave without pay under normal leave procedures for meetings and preparations.

05.05 Retaliation Prohibited: No person may penalize, discipline, or otherwise retaliate against an employee for 1) presenting a grievance or complaint, 2) testifying on behalf of another employee, or 3) representing or assisting another employee with a grievance or complaint.

05.06 Confidentiality: Grievances and complaints are confidential unless the employee chooses otherwise. Those involved in the process should maintain this confidentiality to the extent permitted by the Texas Public Information Act.

05.07 Records: The director of Human Resources and the administrators involved will maintain records of grievances and complaints.

05.08 Notifications: All notifications to the grievant or complainant in this UPPS are complete when the notice is given to him or her directly or deposited in the U.S. or campus mail, addressed to the grievant or complainant at his or her department address or home address on file in Human Resources.

05.09 Recording: Recording by electronic means is not permitted during meetings with the Grievance Review Board.

05.10 In the case of an at-will termination of an employee who is 40 years of age or older and who is offered a termination agreement, the ten working day time period to initiate the complaint will begin 30 days from the date of the termination action.

06. GRIEVANCE REVIEW BOARD COMPOSITION

06.01 A Grievance Review Board consists of three members. A Board is appointed to hear an individual grievance only. While employees may serve on more than one Board, they do not serve for a particular term. Each grievance review hearing requires appointment of a three-member Board. In order to ensure a fair and representative panel, the university will consider diversity when selecting board members. Upon notification from the director of Human Resources:

a. the president will appoint a staff director to chair a Board; and

b. the Staff Council will appoint two of its members to the Board. At least one of the two appointees must have the same classification (non-exempt/classified or unclassified/exempt) as the grievant.

If Staff Council is unable to provide the required appointees, the president will select an appropriate appointee to complete the Board.

No board member may be assigned to the same division as the grievant.

06.02 Board members must serve when appointed and only the president may excuse Board service and only for extraordinary reasons. Service on a Board takes precedence over regular work.

07. BOARD PROCEDURES

07.01 General

The Grievance Review Board process is an administrative investigation by the Board appointed for the particular grievance at hand. It is not a court proceeding permitting cross examinations by the grievant and the disciplining official. Likewise, Board decisions are not required to meet a defined legal standard such as “preponderance of the evidence.” The process provides an opportunity for the Grievance Review Board to meet separately and privately with the grievant. It also affords the Board the opportunity to meet separately and privately with the disciplining official and any other employees, if deemed necessary, to complete its investigation of the issues and present its recommendations to the appropriate vice president. The Grievance Review Board should make every effort to meet with the vice president to deliver and discuss their findings and recommendations.

07.02 In considering grievances, the Board will:

a. Make such recommendations to the vice president as it deems appropriate; and

b. Answer the following questions:

1) Has the grievant clearly established that the discipline was an abuse of the supervisor's discretion and authority?

2) Has the grievant clearly established that one or more of the following reasons were a substantial motivating factor for imposing the discipline? (If yes, specify which reason or reasons were factors.)

a) because of the grievant's race, color, national origin, age, religion, sex, disability, veterans’ status, or sexual orientation;

b) in retaliation for the employee’s having filed an EEOC complaint in good faith;

c) for union or non-union membership;

d) for military service or any university authorized leave;

e) for exercising rights concerning fair labor standards;

f) for reporting unsafe working conditions;

g) to avoid paying employee benefits;

h) for jury duty or for complying with a subpoena to appear at a hearing;

i) because he or she failed to purchase goods from a particular store or merchant;

j) because of a child support or child custody order;

k) for reporting a violation of law to an appropriate law enforcement agency;

l) for refusing to commit an illegal act;

m) because the employee's earnings are subject to garnishment;

n) for attending a political convention;

o) in retaliation for the employee’s having filed a workers’ compensation claim in good faith;

p) for refusing to participate in an abortion; or

q) for any other reason recognized by law as an exception to the doctrine of employment at-will.

NOTE: Consultation with the chief diversity officer and director, Equity and Access is required for a) and b) to determine if investigation under UPPS No. 04.04.46, Prohibition of Discrimination or Harassment Based on Race, Color, National Origin, Age, Sex, Religion, Disability, Veterans’ Status, or Sexual Orientation, is appropriate. If so, the grievance is closed and the issue is referred to Equity and Access to handle as appropriate under the provisions of UPPS No. 04.04.46.

07.03 If the Board finds the termination was based on the items listed c) – q) above, the Board chair must contact the director of Human Resources and the TSUS Associate General Counsel. The Board report must include specific evidence in support of their determination.

07.04 Procedural Defects: A supervisor’s failure to follow the university’s procedures for imposing disciplinary sanctions is not grounds for recommending changes to the sanction unless the grievant clearly establishes that the disciplining official failed to give the grievant notice of the allegations of misconduct and an opportunity to respond to the allegations.

07.05 Grievance Review Board meetings are closed to the public.

08. FORMS

08.01 All forms referred to within this document are available on the university’s Human Resources Web site located at: http://www.hr.txstate.edu/Forms.html.

09. REVIEWERS OF THIS UPPS

09.01 Reviewers of this UPPS include the following:

Position Date

Director, Human Resources April 1 E4Y

TSUS Associate General Counsel April 1 E4Y

Chief Diversity Officer April 1 E4Y

and Director, Equity and Access

Chair, Staff Council April 1 E4Y

10. CERTIFICATION STATEMENT

This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.

Director of Human Resources; senior reviewer of this UPPS

Vice President for Finance and Support Services

President