008.140 - Non-Senate Academic Grievance Procedures

UCSC:APO:CAPM 2/05


A. POLICY REFERENCE

APM 140 - Non-Senate Academic Appointees/Grievances

B. DEFINITION

A grievance is defined as a complaint by an eligible non-Senate academic appointee that alleges:

  1. A specific administrative act was arbitrary or capricious and adversely affected the appointee's then-existing terms or conditions of appointment; and/or
  2. A violation of applicable University rules, regulations, or Academic Personnel policies which adversely affected the appointee's then-existing terms or conditions of appointment.

For the purposes of APM 140, an act is not arbitrary or capricious if the decision-maker exercised reasoned judgment.

A grievance alleging a violation of APM 137 (Non-Senate Academic Appointees/Term Appointment), APM 145 (Non-Senate Academic Appointees/Layoff and Involuntary Reduction in Time), or APM 150 (Non-Senate Academic Appointees/Corrective Action and Dismissal) shall be filed under Section B.2 only.

C. AFFECTED APPOINTEES

  1. APM 140 applies to all academic appointees of the University who are not members of the Academic Senate except as provided below. For non-Senate academic appointees covered by a Memorandum of Understanding (MOU), APM 140 applies only to the extent provided for in the MOU.
  2. APM 140 does not apply to Postdoctoral Scholars (see APM 390).
  3. Under APM 140, student academic appointees who are not covered by an MOU shall only be eligible to grieve matters related to their academic appointment. Complaints pertaining to academic standing or non-employment-related matters are under the jurisdiction of applicable student grievance or academic appeal procedures.

When a non-Senate faculty member receives notice of termination before the expiration of his or her appointment, he or she may select as a grievance mechanism either APM 140, as described in these procedures, or Section 103.9 of the Standing Orders of The Regents (S.O. 103.9), the procedures of which are described in Academic Senate Bylaw 337. In selecting either APM 140 or S.O. 103.9, the non-Senate faculty member waives the right to invoke the other mechanism to review the same grievance.

D. AUTHORITY

A dean or other appropriate academic administrative officer shall have authority to adjust grievances at Step I and Step II. The Campus Provost/Executive Vice Chancellor or Chancellor shall have authority to adjust grievances at Step III.

The Campus Provost/Executive Vice Chancellor shall designate the Grievance Liaison.

E. MEDIATION

The intent of this policy is to encourage voluntary resolution including mediation when both parties desire it. Contact the Academic Personnel Office Office for information and assistance. Attempts at mediation may occur at any time during the grievance process.

F. FILING DEADLINES

  1. A Step II formal grievance must be filed in writing with the Academic Human Resources Office within thirty (30) calendar days from the date on which the appointee knew, or could reasonably be expected to know, of the event or act which gave rise to the grievance, or within thirty (30) calendar days after the date of separation, whichever is earlier.
  2. A Step III formal grievance appeal must be filed in writing with the Academic Human Resources Office within fifteen (15) calendar days from the date on which the Step II response is issued.
  3. Filing deadlines shall apply unless a written extension has been granted by the Grievance Liaison. Either party may submit a written request for an extension to a filing deadline. It is the responsibility of the grievant to file a Step II formal grievance or a Step III formal grievance appeal by the filing deadline or to file a written request for an extension before the filing deadline.

G. STEP I: INFORMAL GRIEVANCE RESOLUTION PROCEDURES

  1. Informal Review - The grievant is encouraged to attempt an informal resolution with the responsible administrative officer whose action is being grieved. Attempts at informal resolution, including mediation, do not extend the time limits for filing a formal grievance unless a written extension has been granted by the Grievance Liaison. A grievance filed within the 30-day time limit may be held in abeyance by the Grievance Liaison to allow the parties to continue attempts at informal resolution. If an informal resolution is attempted but unsuccessful, a grievant may request that the Grievance Liaison assist in informally resolving the grievance.
  2. Complaints Alleging Sexual Harassment - When a grievance alleges sexual harassment, the grievant may elect to substitute the campus Sexual Harassment Complaint Resolution Procedures for Step I. If the sexual harassment procedure is substituted and the complaint is not resolved, the final date for filing a formal grievance shall be fifteen (15) calendar days from the date the grievant is notified of the result of the sexual harassment procedure or within forty-five (45) calendar days from the date the grievant filed the sexual harassment complaint, whichever is earlier.

H. STEP II: FORMAL GRIEVANCE REVIEW PROCEDURES

1. Submitting a Written Grievance - A grievance that is not resolved at Step I may be presented by the grievant for formal review. The grievance must be filed in writing on a form provided by the Academic Personnel Office and submitted to the Academic Personnel Office within thirty (30) calendar days from the date on which the appointee knew, or could reasonably be expected to know, of the event or action which gave rise to the grievance, or within thirty (30) calendar days after the date of separation, whichever is earlier.

The formal written grievance must include the following information:

  • a. If the grievance alleges that a specific administrative act was arbitrary or capricious and adversely affected the grievant's then-existing terms or conditions of appointment, the grievance must state the specific administrative act(s) to be reviewed, the name of the person(s) alleged to have carried out the administrative act(s), the date(s) the alleged act(s) occurred, and a description of how the administrative act(s) were arbitrary or capricious.

  • b. If the grievance alleges that a violation of applicable University rules, regulations, or Academic Personnel policies occurred which adversely affected the grievant's then-existing terms or conditions of appointment, the grievance must state the applicable University rules, regulations, or Academic Personnel policies the grievant believes have been violated; the name of the person(s) alleged to have violated the applicable University rules, regulations, or Academic Personnel policies; the date(s) the alleged violation(s) occurred; and a description of how the rules, regulations, or Academic Personnel policies have been violated.

  • c. All grievances must state how the alleged act(s) and/or violation(s) adversely affected the grievant's then-existing terms or conditions of appointment and the remedy requested.

2. Review of a Formal Grievance - Upon receipt of a formal written grievance, the Grievance Liaison shall complete an initial review of the grievance and determine whether the grievance is complete, timely, within the jurisdiction of APM 140, and contains sufficient facts that support the allegations made in the grievance. Within ten (10) calendar days of receipt of the written grievance, the Grievance Liaison shall notify the grievant in writing of the acceptance of the grievance and identify the Step II reviewer.

If the grievance is not accepted, the reasons shall be specified as follows:

  • a. If the grievance is incomplete or factually insufficient, the grievant will have ten (10) calendar days from the date of the written notice to provide information to make the grievance complete, including additional facts. If the grievant fails to make the grievance complete or provide sufficient facts within the ten calendar days, the grievance will be dismissed.

  • b. If the grievance is determined to be untimely or outside the jurisdiction of APM 140, the grievance will be dismissed.

  • c. If the grievance raises multiple issues, the Grievance Liaison will make a determination as described above with regard to each issue. Some issues may be accepted and others dismissed pursuant to this review process.

  • d. If all or part of a grievance is dismissed at this stage, the grievant will be provided with a written explanation of the basis for the dismissal.

3. If a Step II grievance raises allegations of discrimination, harassment, or retaliation in violation of APM 035 ("Affirmative Action and Nondiscrimination in Employment"), the Grievance Liaison shall forward a copy of the grievance to the appropriate campus office (e.g., Equal Employment Opportunity - Affirmative Action Office or the Title IX Office). The grievant will be provided the opportunity to elect a review by the EEO/AA or Title IX Office. A review by the EEO/AA or Title IX Office will extend the deadline for the Step II response by forty-five (45) calendar days. The results of any review shall be provided to the Grievance Liaison, who will forward information to the Step II reviewer for consideration in making a Step II decision.

4. A formal written grievance accepted for processing shall be forwarded by the Grievance Liaison to the Step II reviewer for response. The Step II reviewer and the grievant shall be notified of the date the Step II decision is due. The Step II reviewer will be the dean or other appropriate academic administrative officer as determined by the Grievance Liaison, in consultation with the Assistant Vice Chancellor for Academic Personnel .

The Step II reviewer shall review the grievance and, if appropriate, shall investigate and/or meet with the parties. Within thirty (30) calendar days from the date of receipt of the formal grievance by the Academic Personnel Office, the Step II reviewer shall send a written response to the grievant and the Grievance Liaison. The response will include a statement that the grievance is denied or upheld in whole or in part and that the grievant has the right to appeal the decision to Step III of the grievance procedure. The written decision shall be issued in letter or memo format and forwarded by U.S. Mail, or in person, to the grievant and the grievant's representative (if any), with a Proof of Service form.

I. STEP III: FORMAL GRIEVANCE APPEAL PROCEDURES

1. A grievance not resolved to the satisfaction of the grievant at Step II may be appealed in writing to Step III with the Academic Personnel Office within fifteen (15) calendar days from the date on which the Step II response was issued or due. The Step III grievance appeal must set forth the unresolved issue(s) and the remedy requested. Except by written mutual agreement of the parties, no issues shall be introduced in the appeal that were not included in the original written grievance.

All grievance appeals will be subject to Step III-A administrative consideration unless there is a written request for a Step III-B hearing and the issue(s) appealed are eligible for a Step III-B hearing (see Section 3.a below).

2. Step III-A: Administrative Consideration

  • a. Within seven (7) calendar days from receipt of an appeal to Step III-A, the Grievance Liaison shall forward the grievance and the Step II response (if any) to the Campus Provost/Executive Vice Chancellor for review and written decision.

  • b. Based on the record, the Campus Provost/Executive Vice Chancellor shall determine whether the Step II grievance was properly reviewed and whether the decision made at Step II shall be upheld, rejected, or modified. If no Step II decision was issued, the Campus Provost/Executive Vice Chancellor shall investigate the grievance and determine whether the grievance is denied or upheld in whole or in part.

  • c. The Campus Provost/Executive Vice Chancellor shall provide a final written decision to the grievant within thirty (30) calendar days from receipt of the grievance appeal from the Academic Personnel Office. If the Step II decision is rejected or modified in whole or in part, the Step III decision shall state the reasons. The Step III decision shall include a statement that this decision is final and binding. The Step III written decision shall be issued in letter or memo format and forwarded by U.S. Mail, or in person, to the grievant and the grievant's representative (if any), with a
    Proof of Service form.

3. Step III-B: Hearing

a) Only the following issues are eligible for appeal to a Step III-B hearing:

  • non-reappointment (see APM 137-30-c);
  • layoff or involuntary reduction in time (see APM 145);
  • written censure, suspension, reduction in salary, or demotion (see APM 150);
  • dismissal (see APM 150);
  • allegations of discrimination in violation of APM 035 involving non-reappointment, layoff, involuntary reduction in time, written censure, suspension, reduction in salary, demotion, or dismissal;
  • allegations that procedures in a personnel review were not inconsonance with the applicable rules and requirements of the University and/or that the challenged decision was reached on the basis of impermissible criteria, including (but not limited to) race, color, national origin, religion, sex, sexual orientation, gender identity, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), genetic information (including family medical history), ancestry, marital status, age, citizenship, service in the uniformed services as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994 or political conviction.

b) Within seven (7) calendar days from receipt of a written request for hearing, the Grievance Liaison shall determine whether the grievant has identified an issue eligible to be appealed for hearing. If the Grievance Liaison determines the appeal does not identify an issue eligible to be appealed for hearing, the Grievance Liaison shall notify the grievant and submit the appeal for determination under Step III-A administrative consideration.

c) Election of Hearing Officer - The grievant shall elect whether a University or a non-University hearing officer hears the grievance. Election by the grievant shall be in writing and shall be final. Whenever possible, within forty-five (45) calendar days from the date of the grievant's written election, a hearing officer shall be appointed or selected, and within sixty (60) calendar days thereafter a hearing date shall be scheduled. The hearing officer shall coordinate the hearing process through the Grievance Liaison.

d) University Hearing Officer - If the grievant elects a University hearing officer, there shall be no cost to the grievant. The Campus Provost/Executive Vice Chancellor shall appoint the hearing officer from this or another UC-campus. The University Hearing Officer shall receive instruction from the Grievance Liaison on how to conduct an orderly hearing, including swearing in witnesses, receipt of testimonial and documentary evidence, ruling on objections, and other such matters.

The Campus Provost/Executive Vice Chancellor shall provide the Grievance Liaison with the names of three University appointees who are willing to serve as the University hearing officer, who are not from the same academic division as the grievant, and who have experience as an academic administrative officer with a practical understanding of academic employer-employee relationships and academic personnel policies. The grievant and the Grievance Liaison shall each strike one name from the list, and the remaining individual shall be appointed as the University hearing officer.

e) Non-University Hearing Officer - If the grievant elects a non-University hearing officer, the hearing officer shall be selected by mutual agreement between the parties. If there is no agreement, the Grievance Liaison shall request a panel of prospective non-University hearing officers from the American Arbitration Association. The Grievance Liaison and the grievant shall alternately strike names from the panel until one name remains. The individual whose name remains shall be the selected non-University hearing officer. The services of the American Arbitration Association shall be limited to providing the parties with the panel of prospective non-University hearing officers.

f) Hearing - The hearing officer shall convene a hearing in which each party shall have the opportunity to present evidence, cross-examine witnesses, and submit rebuttal evidence. Evidence may be oral and/or documentary. Issues regarding the admissibility and weight of evidence shall be decided by the hearing officer. The hearing officer shall handle all procedural issues which arise before and during the hearing. In advance of the hearing, the parties shall attempt to stipulate in writing issues to be submitted for review at the hearing. If the parties cannot agree on the issues, the hearing officer shall define them.

Upon request, each party shall provide the other with copies of materials to be introduced at the hearing and names of witnesses who will testify on the party's behalf in its case. To the extent possible, such materials and names of witnesses shall be exchanged at least ten (10) calendar days prior to the hearing.

In cases alleging a violation of APM 137-30-c, APM 145, or APM 150, the University's representative shall proceed first in presenting the University's case at the hearing. In all other cases, the grievant shall proceed first in presenting his or her case at the hearing.

The hearing shall be closed unless both parties agree in writing to the presence of additional persons. In the absence of such an agreement, the hearing shall be closed to all persons other than the principal parties to the grievance, their representatives, and the Grievance Liaison.

All materials, reports, and other evidence introduced into the hearing and recorded by an audio recorder, stenographic services, or by other means shall be considered confidential to the extent allowed by law and University policy.

The hearing officer shall be bound by the provisions of APM 160-20-d (2) pertaining to the Academic Senate Committee on Privilege and Tenure regarding access to records.

An audio recording will be made by the University unless the parties agree in advance to share the costs of making a stenographic record. The grievant shall be permitted to arrange for stenographic recording at the grievant's expense if the University does not agree to share the cost. The parties should be made aware that an audio recording is being made, who will have custody of the recording, and how copies may be obtained.

g) Hearing Officer's Authority - The hearing officer shall provide the parties in the case and the Campus Provost/ Executive Vice Chancellor with a written statement of findings and recommendation(s) within thirty (30) calendar days of the close of the hearing. In cases alleging a violation of APM 145 or 150, the hearing officer shall determine whether the University has established by a preponderance of evidence that it had good cause to take such action. In cases alleging a violation of APM 137-30-c, the hearing officer shall determine whether the University has established by a preponderance of evidence that it met the standard set forth in APM 137-30-c. In all other cases, the hearing officer shall determine whether the grievant has established that (1) a specific administrative act was arbitrary or capricious (see APM 140-4-b) and adversely affected the appointee's then-existing terms or conditions of appointment; and/or (2) a violation of applicable University rules, regulations, or Academic Personnel policies occurred which adversely affected the appointee's then-existing terms or conditions of appointment.

The hearing officer shall make findings of fact based upon the evidence presented at the hearing. The hearing officer shall not recommend adding to, deleting from, or otherwise modifying the provisions of University rules, regulations, or Academic Personnel policies. No evidence other than that presented at the hearing shall be considered by the hearing officer or have weight, except that notice may be taken of any facts that are commonly known and accepted by the parties.

The hearing officer shall not substitute his or her judgment for the academic judgment of a peer review committee or administrative officer, nor shall he or she be empowered to evaluate the academic qualifications or competence of academic appointees.

The Campus Provost/Executive Vice Chancellor shall review the hearing officer's findings and recommendations and issue a final written decision within thirty (30) calendar days of receipt of the hearing officer's findings and recommendation(s). If the hearing officer's recommendation(s) is rejected or modified, the Campus Provost/ Executive Vice Chancellor shall provide to the grievant a statement of the reasons. If a decision is based on facts different from those found by the hearing officer, the decision must be based on materials in the record.

h) Fees - There shall be no cost to the grievant for a University hearing officer. In the case of a grievance heard by a non-University hearing officer, the hearing officer's fees shall be borne equally by the University and the grievant if the Campus Provost/Executive Vice Chancellor accepts the hearing officer's recommendation(s). The fee shall be borne entirely by the University if the Campus Provost/Executive Vice Chancellor rejects or modifies the recommendation(s) of the non-University hearing officer.


J. REPRESENTATION

Grievants may represent themselves or may be represented by another person at any stage of the grievance process. The University shall be represented as the Campus Provost/Executive Vice Chancellor deems appropriate.


K. TIME LIMITS

Prior to expiration of a time limit, extensions may be granted by the Grievance Liaison upon written request by either party. If the grievant fails to meet a deadline, the grievance will be considered resolved on the basis of the last University response. If a University official fails to meet a deadline, the grievant may move the grievance to the next step in the process. Time limits which expire on days that are not business days at UCSC shall be automatically extended to the next UCSC business day.


L. PAY STATUS

The grievant and the grievant's representative, if employed by the University, shall be granted leave with pay based on their regular pay status to attend hearings and meetings convened by the University to consider grievances under this policy. Time spent by the grievant and the grievant's representative in investigation and preparation of a grievance shall not be on pay status. Time spent by University employee-witnesses in meetings and hearings convened by the University shall be taken as leave with pay based on their regular pay status.


M. REMEDY

If the grievance is sustained in whole or in part, the remedy shall not exceed restoring to the grievant the pay, benefits, or rights lost either as a result of the violation of University rules, regulations, or Academic Personnel policies, or as a result of an arbitrary or capricious administrative action, less any income earned from any other employment. If the hearing officer's findings and recommendation(s) include a remedy for back pay, the amount of back pay shall be determined by the University. Disputes over the amount of back pay due may be referred back to the hearing officer for a separate recommendation. Any claim of back pay by a grievant must be supported by appropriate documentation. Payment of attorney's fees shall not be part of the remedy. Unless specifically authorized by the Grievance Liaison, after consultation with the Campus Provost/Executive Vice Chancellor, compensation shall not be paid for any period that is the result of extension(s) of time requested by or on behalf of the grievant.


N. CONSOLIDATION OF GRIEVANCES

The following may be consolidated in one review: grievances of two or more academic appointees, where the grievances are related and consolidation is appropriate under the circumstances; two or more grievances filed by the same grievant which are based on the same incident, issues, or act; or two or more grievances filed by the same grievant which are based on the same pattern of conduct. The Grievance Liaison shall decide whether grievances will be consolidated.