ACD 509–02: Grievance Policies and Procedures for Faculty

To provide for hearing procedures for faculty

Arizona Revised Statutes § 41–1062

Arizona Board of Regents Policy Manual - 6–201

Personnel Policies and Procedures for Faculty

Faculty (except in cases of faculty dismissal or suspension without pay [see ACD 501])

1. The Board of Regents, the university president, the faculty, and the administrators of ASU recognize the importance of providing a prompt and efficient procedure for fair and equitable resolution of grievances without fear of prejudice or retaliation for initiating a grievance or participating in its settlement on the part of the person involved.

   Note:

   “Grievant” and “respondent” may refer to one or more individuals.

2. Each individual’s attempt to rectify a perceived wrong is considered consistent with ASU’s role as an upholder of individual rights.
3. The existence of a grievance process in no way diminishes the responsibility of faculty and administrators for the exercise of sound academic judgment.
4. All grievants shall have clearly defined avenues of appeal and redress which may include mediation and/or a hearing before a faculty committee that reports to the president. The president decides the matter and his or her decision is final.
5. Faculty grievance procedures shall be separated from those for staff or students.
6. The preferred option is to resolve grievances internally at the level closest to the grievant. By using the internal mediation and hearing procedures first, the grievant should be able to obtain acceptable results without escalation to a formal charge with an outside agency.
7. At each level of decision making, the grievant shall be informed of the informal and formal options available for redress and appeal if the grievance is unresolved.
8. The faculty at each unit level shall be involved in the preparation and/or periodic review of equitable and mutually agreed upon written policies and procedures for faculty grievance resolution.
9. The process of resolving faculty grievances shall be approved by the Academic Senate.
10. Mutually agreed upon grievance procedures shall be fully explained and placed in the Academic Affairs Policies and Procedures Manual. Amendments to the procedure, proposed by the faculty or the administration, shall be brought to the Senate Personnel Committee at its January meeting of each year, although changes may be proposed at any time.
11. Grievant may choose either a mediation route that may then be followed by a grievance route or may choose a grievance route alone.
12. If grievant chooses not to follow the mediation route, he or she may choose to have legal counsel at his or her expense.
13. The right of a faculty member to be heard by the appropriate board or committee as described under Bylaw I of the Academic Constitution shall not be restricted.
14. Each grievant has the right to a fair, full, and reasonably speedy investigation and judgment by members of the appropriate board or committee experienced in resolving the type of faculty grievance brought to that body.
15. Two or more faculty members experiencing the same grievance have the right to seek redress jointly or individually, unless the basis for the grievance is release solely for reorganization (reduction in force) in which case, the grievants shall all seek redress jointly.
16. After a personal interview on the topic of a specific grievance, the grievant and the decision maker involved shall sign a written statement on the disposition of the grievance. This shall be done at each stage of the grievance process at the request of the grievant.
17. Written records of grievance-related matters at each level are to be kept.
18. All parties to a grievance are entitled to frequent notification of the status of their case, especially at the conclusion of each stage of the process.
19. All actions at any stage of the grievance process shall be characterized by fairness, frankness, courtesy, and respect for the dignity of each individual.
20. Consideration of released time shall be given at the unit level for faculty who chair grievance committees or boards or serve as faculty ombudsperson.
21. A frequently updated data base for all grievance-related cases shall be provided by each office, board, or committee directly involved in the grievance process. The data base shall include numbers of cases handled, number resolved, number pending, and number referred to an outside agency.
22. Grievances involving faculty members who teach off ASU at Tempe campus shall be handled by established grievance procedures prescribed herein.
23. “Retaliation” in grievance matters shall be defined for each specific case. Respondent, grievant, witnesses, and members of the grievance body handling the case shall have a clear understanding of what is meant by retaliation and be instructed that retaliation is forbidden.

    Grievants and witnesses must be assured freedom from restraint, coercion, discrimination, or reprisal in presenting their testimony.

    Examples of retaliation include, but are not limited to:

    1. refusal to communicate with grievant about matters not related to the grievance without justification
    2. overt or covert hostility or rudeness directed toward grievant
    3. refusal to provide research or teaching assistantships to grievant for reasons relating to grievance
    4. criticism or reprimand of grievant when not appropriate or justified
    5. finding fault with grievant for conduct that would not be addressed if another faculty member engaged in similar conduct
    6. adverse performance reviews of grievant without justification

       and

    7. denial of salary increments or merit pay to grievant without justification.

24. If a person is transferred from staff status to faculty status or vice versa while a grievance is pending, and wishes to present a grievance, he or she may choose, with the aid of the ombudsperson, which process (staff or faculty) is appropriate for the grievance in question.
25. Sexual Harassment

    A faculty member alleging sexual harassment may file a written complaint with the Office of Diversity, Human Resources by following the procedures developed by that office. Filing a complaint or otherwise reporting sexual harassment shall not cause any reflection on the individual’s status as a faculty member nor shall it affect future employment, compensation, or work assignment (see ACD 402, “Sexual Harassment”).

1. A grievance may be filed if the grievant believes:
2. 1. There has been a violation, a misinterpretation, an arbitrary, or discriminatory application of university policy, regulation, or procedure which, applied personally to that faculty member, infringes upon his or her privileges, responsibilities, or terms and conditions of employment.
   2. He or she has been discriminated against on the basis of sex, gender identity, sexual orientation, race, religion, national origin, age, disability, other protected veteran status, special disabled veteran status, and/or Vietnam-era veteran status.
   3. There has been an infringement on his or her academic freedom.

2. The proposed structure differentiates between mediation and grievance hearings. Mediation is a less formal process involving the faculty and others (e.g., department chair, dean, other faculty members) who are assembled by a neutral ombudsperson. In a grievance hearing, the faculty member requests a formal hearing by one of the three faculty grievance committees.
3. Under the proposed plan, a faculty member may choose either the mediation route followed (if necessary) by the grievance hearing route or the grievance hearing route alone.
4. “Faculty” shall mean all employees of the Arizona Board of Regents in teaching, research, or service whose notice of appointment is as lecturer, instructor, assistant professor, associate professor, professor, or otherwise designated as faculty on the notice of appointment. Faculty associates and graduate students who serve as assistants, associates, or otherwise are academic appointees, but are not members of the faculty (ACD 501, “Conditions of Faculty Service”).

   “Grievant” is the individual with a complaint under 1 (above). “Respondent” is the department or official alleged to have caused or been responsible for the action leading to the complaint.

5. The recommended starting point for resolving grievances is at the chair or dean level. If, however, the grievant does not wish to follow this route, or this route has not provided acceptable resolution, he or she may use the Mediation/Grievance Hearing Procedures.

Introduction

Mediation may be requested by a faculty member who requires informal assistance in the resolution of a complaint. An ombudsperson from the ASU Ombudsperson Committee will mediate, conciliate, and coordinate communication among the grievant, respondent, and those related to the complaint. The purpose of this process is to air differences between the parties and to resolve the complaint to the satisfaction of both parties without resorting to formal hearings. Mediation is strongly recommended.

The names of members of the ASU Ombudsperson Committee are listed in the ASU Directory and the ASU Roster of Boards, Committees, and Councils.

Mediation Process

1. The faculty member seeking mediation shall file a complaint with the ombudsperson within 30 days of the occurrence of the actions which form the basis of the complaint.
2. Mediation shall proceed according to procedures outlined in ACD 509–01, “University Ombudsperson Committee Guidelines.”
3. If mediation does not result in a successful resolution of the complaint, the faculty member may file a grievance with the Clearinghouse Committee within thirty (30) days of receipt of the ombudsperson’s report.
4. In addition to data called for in the policy statement, the Clearinghouse Committee shall keep records of the number of cases referred to it where the grievant sought resolution at lower levels, and the number of cases referred to it where the grievant did not seek resolution at lower levels. Grievant may or may not choose to give reasons to the Clearinghouse Committee for not following the recommended option. The Clearinghouse Committee shall report annually to the Academic Senate and the president. The report shall include the collected data.
5. During mediation, the grievant shall not be represented by an attorney. He or she may have an adviser chosen from the university community who will attend meetings and review written documentation.
   
   

   Access shall not be given to information deemed confidential under federal or state laws, or if access would constitute an invasion of privacy. If the ombudsperson denies access, all parties will be given a written explanation. If the grievant disagrees with the ombudsperson’s determination, the grievant may terminate mediation and remove the complaint within 15 days to a hearing committee.

6. The ombudsperson shall have 30 days after receiving written statements from the grievant and respondent to try to resolve the conflict.
7. If a mutually satisfactory resolution results from the mediation, the process ends. If the parties cannot resolve the differences, the grievant may, if he or she chooses, seek a hearing before one of the grievance committees.
8. The result of the mediation process is a report prepared by the ombudsperson and sent to the parties and to the president stating:
9. 1. the names of grievant and respondent
   2. the length of time mediation was attempted
   3. that mediation was or was not successful
   4. notice that grievant may initiate grievance hearing procedures within 30 days of receipt of the ombudsperson’s report (see below)
   5. the name and office address of the chair of the Clearinghouse Committee (see below).

1. Whether or not a grievant has sought mediation, he or she may request a hearing by a panel of one of three grievance committees: The Committee on Academic Freedom and Tenure (CAFT), the Governance Grievance Committee (GGC), or the Board on Equal Opportunity (BEO). The hearing committee shall be selected by the Clearinghouse Committee consisting of the chairs of the CAFT, GGC, and BEO. The chair of the Clearinghouse Committee shall be rotated: chair of the CAFT first, followed by the chair of the BEO, and then the chair of the GGC.
2. The membership of the respective grievance committees is described under Bylaw I of the Academic Constitution. No fewer than three faculty members of a given grievance committee shall constitute a hearing panel for that committee.
3. Chairs of grievance committees will be chosen annually by the members of the respective committees.
4. The grievance committee jurisdiction:
5. 1. Within 30 days of receipt of the ombudsperson’s report or within 30 days of the occurrence of the actions which formed the basis for the grievance, the grievant shall make a written request for a formal hearing to the Clearinghouse Committee. Written requests should be marked confidential and sent to the Chair of Grievance Clearinghouse Committee, Academic Senate Office (mail code 1703). If any policies of the Board of Regents or ASU provide shorter time limits, the shorter limits will apply.

      The request must be filed by the grievant by hand delivery or by certified mail, return receipt requested, with the chair of the Clearinghouse Committee at the Academic Senate Office address and shall state: grievant’s name, address, telephone number, a statement of the complaint, remedies sought, and the name and address of grievant’s attorney, or that grievant is proceeding without an attorney.

   2. The Clearinghouse Committee shall decide which committee will hear the case based on the following jurisdictional guidelines:
   3. 1. Alleged discrimination.

         If discrimination in employment, program, or activity based on race; color; religion; sex, gender identity; national origin; age; disability; or Vietnam-era or other protected veteran status is the essence of the grievance, the Board on Equal Opportunity shall hear the case.

      2. Alleged infringement on academic freedom and tenure.

         All complaints of, or recommendations against a faculty member, unless specifically excepted below, shall be heard by the Committee on Academic Freedom and Tenure whether the dispute involves the substance of a decision or the fairness of the procedures by which the decision was made, including complaints alleging discrimination.

         1. The committee shall hear any faculty allegation that a decision affecting his or her employment relation with the university was not determined in substantial compliance with regular university procedures. This includes nonrenewal of contracts, denial of tenure or promotion, and denial of sabbatical and other leaves. When, however, the matter concerns the basis or reasons for administrative decisions on promotion, sabbatical leaves, and leaves, the committee shall not have jurisdiction.
         2. If the allegation asserts that a decision on nonretention or denial of tenure was not determined in accordance with regular university procedures or was based on discriminatory or other unconstitutional grounds, the committee may hear the case. In performing its function of assessing the procedural regularity of the tenure and promotion process, the Academic Freedom and Tenure Committee plays an important fact-finding role, similar to that of a board of inquiry. To the extent possible, this role should be carried out in a non-adversarial, collegial way.
         3. The committee shall hear disputes on the amount of salary due a nontenured faculty member who has been suspended or dismissed before the expiration of the employment period.
         4. When dismissal is considered for a faculty member who has satisfactorily completed any probationary period established under the existing personnel policies of the university, or a faculty member whose contract period has not expired, the Committee on Academic Freedom and Tenure shall proceed under ACD 501, “Conditions of Faculty Service.”
      3. Alleged abuse of governance procedures.

         The Governance Grievance Committee shall hear all complaints, unless specifically excepted below, alleging unfair treatment because no policies or procedures exist, or existing policies or procedures have been misinterpreted, misapplied, or violated by a university administrator. Where the jurisdiction of the Governance Grievance Committee overlaps with that of the Committee on Academic Freedom and Tenure, the latter committee shall hear the matter.

   Timelines and Steps of Hearing Process

   1. The chair of the Clearinghouse Committee shall forward the request for a hearing within seven days after it is filed to respondent with instructions to respond within 15 days. The response shall contain the name, address, telephone number of respondent, and a statement of respondent’s position on the issue, the name and address of the respondent’s attorney if grievant elects to be represented by an attorney. Respondent is not obligated to have an attorney.
   2. Within 15 days of the original request, the grievant and respondent will receive written notification from the chair of the Clearinghouse Committee as to which committee will hear the case and a statement of procedures of that committee.
   3. The grievant may ask the Clearinghouse Committee to reconsider its decision on case assignment. Any reconsideration by the Clearinghouse Committee is final.
   4. The chair of the designated hearing committee will set a hearing date in conjunction with all parties involved in the case. The hearing should begin within 60 days of the date of the original request. The sixty-day period includes only the time when school is in session. Semester breaks and summer recess are not included. The parties shall receive notice of the hearing date at least 20 days before the hearing date.
   5. The chair may meet with the parties and/or counsel before the hearing to narrow the issues, discuss number of witnesses and documents and any related matters.
   6. A grievance shall not proceed if the grievant, after due notice, fails to be present or fails to obtain continuance. A grievant may withdraw his or her grievance at any stage in the grievance procedure by writing the chair of the committee designated to hear the grievance.
   7. The grievant shall be advised of relevant statutes of limitation that would affect his or her ability to file for a hearing outside the university. Specifically, in the case of discrimination, that the grievant must file a complaint with the Arizona Civil Rights Division, U.S. Dept. of Education Office of Civil Rights, or the U.S. Dept. of Labor within 180 days of the occurrence of the action complained of. He or she has 300 days from the date of occurrence to file with the U.S. Equal Employment Opportunity Commission.
   8. If a grievant commences a grievance with an outside agency based on the same or other grounds, the ombudsperson or the chair of the hearing committee, depending on the progress of the internal grievance, will continue the internal grievance, unless the grievant desires to postpone the hearing process or withdraw the internal grievance. The ASU Office of General Counsel will handle complaints filed with outside agencies.

      Grievant shall be advised by the chair of the hearing committee to consider filing charges with an outside agency if the deadline to file may pass pending the outcome of the internal process.

   9. No later than 15 days before the hearing date, the grievant and respondent will submit complete written documentation of the complaint and a list of witnesses to the chair of the hearing committee.
   10. The chair of the hearing committee shall send a copy of the written documentation and witness lists submitted by the grievant and the respondent to the committee members within three working days after receipt. Grievant’s witness list and documentation will be forwarded to respondent and respondent’s witness list and documentation will be forwarded to grievant by the chair within three working days after receipt.
   11. The chair of the committee may call witnesses upon request of either party or on the chair’s initiative. The chair may also require the production of books, records, and other evidence. Request shall be made either by personal delivery or by certified mail. In the interest of fair treatment, it is expected that any member of the university community called to testify shall testify and any university community member or university office that has access to relevant documents will produce them to a requesting party or the Grievance Committee. In the event such cooperation is not forthcoming, the hearing committee chair has subpoena power to do one or more of the following:
   12. 1. compel the attendance and testimony of witnesses called by the parties or the hearing committee who refuse to appear without a subpoena;
       2. compel either party to produce relevant documents if a party refuses to do so without a subpoena;
       3. compel a university office/representative who is in possession of relevant documents desired by a party or the hearing committee to produce such documents to the hearing committee, if the office/representative refuses to do so without a subpoena.

          If a party needs a subpoena, the party will request a subpoena form from the hearing committee chair, complete the form, and submit it to the chair for signature. The party will then give the signed subpoena to the appropriate witness or university representative. The chair may also serve subpoenas on the chair’s initiative.

Hearing Rules

Hearings by the three grievance committees shall be conducted according to the following rules:

1. Hearings shall be recorded on tape. Deliberations are not part of the hearing.
2. Unless overriding reasons are given to grievant, respondent, and other appropriate parties, all parties shall have access to all information that is presented to the hearing body at no expense to them.
3. While a grievance is being processed, grievant and respondent should be informed about the status of the grievance.
4. Either party may have the advice of counsel prior to the hearing. On counsel participation, the grievant must elect one of the following four options in making a presentation to the hearing committee:
5. 1. The grievant may proceed without counsel at the hearing. In this event, the respondent will proceed without counsel.
   2. The grievant may be accompanied by counsel who will act as an advisor during the hearing. The grievant will be responsible for presenting the case (witnesses, exhibits, and statements) and counsel may advise the grievant. In this event, the respondent may proceed with counsel as an advisor.
   3. The grievant may be represented by counsel at the hearing; counsel may present statements, question witnesses called by both parties and present documents. In this event, the respondent may be represented by counsel in the same manner.
   4. Regardless of which option the grievant elects, the committee has the right to speak to the parties and witnesses during the hearing, including the right to question and to receive responses from the parties and witnesses directly.

   If neither party is advised or represented by counsel and the university general counsel has not been involved in the case on behalf of either party, the university general counsel may provide advice to the grievance committee and/or grievance committee chair; however, legal advice is limited to procedural, not substantive, issues related to the case.

   If the grievant has counsel, generally, an attorney in the University Office of General Counsel will advise/represent the respondent. In order to avoid a potential conflict of interest, the university general counsel will not advise the grievance committee or chair; rather, the University Office of General Counsel will secure an outside counsel to advise/represent the committee or chair at the chair’s request, if the committee desires such assistance.

5. Members of grievance committees shall not participate in deliberations when they have a conflict of interest.
6. In the interest of fair treatment, it is expected that any member of the university community called to give testimony shall testify.
7. The grievant and respondent shall hear all testimony.
8. Upon request of either party and for good cause shown, the chair may continue the proceedings to another time.
9. Either party may demand that witnesses be excluded except while testifying. Generally, the committee will allow all witnesses to testify and documents to be presented which are related to the complaint or the response.
10. Each party or counsel may present an opening statement of his or her position. Generally, the grievant or counsel will then present all of his or her witnesses and documents. The committee members may question the witnesses and ask questions about documents presented. The respondent or counsel may question the grievant. After the grievant has presented his or her case, the respondent or counsel shall have an opportunity to present witnesses and documents, and the committee members may question the witnesses and ask questions about documents presented. The grievant or counsel may question the respondent. The members of the committee may question the parties throughout the hearing.
11. At the completion of the hearing, the chair will notify the parties that within 30 days the committee will forward a recommendation and report to the president, who will make the final decision.
12. Within 30 days after the completion of the hearing, the committee shall submit a report to the president which will include its findings, conclusions, and recommendations.
13. Within 45 days of receipt of the committee report, the president shall decide the matter and forward a written statement to the grievant, the respondent, and the members of the hearing committee. If the president cannot issue a decision within the 45-day period, the president will notify the parties within the 45-day period of a delay in the issuing of the decision, the reasons for the delay, and the date on which the decision can be expected. The decision of the president shall be final.
14. The grievant who is dissatisfied with the decision of the president may request reconsideration by filing a written request with the president no later than 15 working days following the receipt of the president’s written decision. The request shall be based on the following grounds:
15. 1. irregularities in the proceedings, including but not limited to any abuse of discretion or misconduct by the committee which has deprived the employee of a fair and impartial process;
    2. newly discovered material evidence, which could not have been available for the presentation;
    3. the decision is not justified by the evidence or is contrary to law;
    4. the severity of the sanction.

    Following receipt of the request for reconsideration, the president shall conduct whatever reconsideration is deemed necessary to resolve the issues that have been raised. The president will provide a written response to the request to all parties within 20 days of receipt of the grievant’s request. The decision following reconsideration is final.

15. To pursue the case outside the university, the employee must file a legal action in Maricopa County Superior Court in accordance with Arizona Revised Statutes,§ 12–901, et seq. The action must be filed in court within 35 days after receipt of the president’s decision, if the grievant does not request reconsideration, or within 35 days after receipt of the president’s response following reconsideration, if requested by the grievant.
16. The hearing report shall be provided to the parties by the president on request.
17. When the Academic Freedom and Tenure Committee determines that there has been a material failure by an academic unit to adhere to procedures governing the tenure and promotion process, it should advise the executive vice president and provost of the university through its report to the president, so that the following steps can be taken.
18. 1. The executive vice president and provost of the university will consult with the faculty and/or head of that unit to ensure that such a failure does not happen again.
    2. If the Academic Freedom and Tenure Committee determines that such a failure was a deciding factor in a recommendation that the candidate be denied tenure or promotion, it should so advise the executive vice president and provost of the university.
    3. The advice is not the functional equivalent of a recommendation to grant tenure or promotion. Tenure and promotion can only be granted when there has been an appropriate showing that the candidate has met the standards of the academic unit in which he or she is to be tenured or promoted. A determination by the executive vice president and provost of the university, based on the recommendation of the Academic Freedom and Tenure Committee or otherwise, that a candidate’s review has been procedurally flawed is not a showing that the standards of the academic unit have been met.
    4. The executive vice president and provost of the university will take steps to determine whether the standards have been met. He or she may return the application to the academic unit from which it arose, with instructions to reconsider the application in the following academic year in accordance with proper procedures.
    5. If, based on the advice of the Academic Freedom and Tenure Committee or otherwise, the executive vice president and provost of the university determines that it is not likely that the candidate can receive fair reconsideration from the academic unit to which the application would ordinarily be returned, the executive vice president and provost of the university, in consultation with the candidate and the chair of the Academic Freedom and Tenure Committee, will devise an ad hoc procedure to determine if the candidate has met the standards of the academic unit. Such a procedure, for example, might involve submitting the candidate’s tenure (or promotion) application and the unit’s standards to a committee consisting of faculty in the relevant discipline from another university.
    6. When the executive vice president and provost of the university determines that an application for tenure must be reconsidered under points (d) and (e), above, the candidate’s contract should be adjusted to ensure that he or she will have an additional year under the terminal contract in which to find a new position (if the reconsideration results in a denial of tenure).

Appeal of Dismissal

1. When reason arises to question the fitness of a faculty member who has tenure or whose term of appointment has not expired, the appropriate administrative officers, as designated by the president on a case-by-case basis, should ordinarily discuss the matter with the faculty member in personal conference. The matter may be disposed of by mutual consent at this point.
2. If an adjustment does not result and the faculty member is recommended for suspension without pay or dismissal, ACD 501, “Conditions of Faculty Service,” applies.
3. Other procedures for dismissal:
4. 1. When an individual has been placed on disability status for more than 18 months, there is no assurance of reemployment with the university. At this stage, the university may utilize the procedures above for termination.
   2. Suspension of the faculty member during the proceedings is justified if, in the judgment of the president, immediate harm to the faculty member or to others is threatened by continuance or if continued performance of duties would result in extreme harm to the academic program. Unless prohibited by law, any suspension shall be with pay.

For the composition of grievance committees, see ACD 112–01, “Academic Constitution and Bylaws.”

For the Board of Regents’ official conditions policy, see ACD 501, “Conditions of Faculty Service.”