10.20 – Staff Grievances/ Disciplinary Appeals

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Scope: NMSU System

Source: ARP Chapter 10 | HR - Discipline and Dispute Resolution

Rule Administrator:

Last Updated: Not Available

Related

Cross-Reference:

RPM 3.25 - Equal Opportunity and Prohibition of Unlawful Discrimination

ARP 3.25 – Discrimination, Harassment and Sexual Misconduct on Campus

Related 2013 CBA Article 19



Revision History:

2017 Recompilation, formerly Rule 4.05.11

 

A. Hostile Work/Academic Environment


A hostile environment claim may be based on offensive conduct or behavior that is sufficiently severe and/or pervasive to create an abusive work/academic environment or related activities. See below for definition.

 

B. Nondiscrimination-Based Harassment


The university prohibits any unlawful practice of harassment in work place, classroom environments, including related activities, which has the effect of creating a hostile environment based on disputes arising from nondiscrimination matters. Responsibility for such matters is designated to the appropriate directors, department heads, deans, vice presidents or vice provosts. On the occasion that nondiscrimination harassment is reported or discovered during an investigation by the assistant director of Employee Management Services, a referral to the appropriate official may be made for further review and action. Examples of nondiscrimination harassment may include conduct and behavior that is sufficiently severe and/or pervasive to create an abusive work or academic environment. (See RPM 3.25 Equal Opportunity and Prohibition of Unlawful Discrimination and corresponding administrative rules and procedures at ARP 3.25 – Discrimination, Harassment and Sexual Misconduct on Campus)

 

C. Grievance Exceptions


Grievable items do not include basic management rights such as, but not limited to, the right to manage, direct and assign employees, determine staffing patterns, rate of pay and/or tasks to be performed. Any action or complaint commenced in any state or federal agency or court (or before any state or federal employee or hearing officer) may, at the discretion of the executive vice president and provost result in a stay of any pending or filed internal proceeding (grievance, appeal, etc.) filed by or on behalf of an employee of the Board of Regents. Upon termination of the external proceeding the executive vice president and provost will review the status of the internal proceeding in the light of the results of the external proceedings. If, in the executive vice president and provost’s opinion, further action is required, the internal proceeding may continue in accordance with established procedures. If no further action is deemed necessary, the internal proceeding will cease

 

D. Nondiscrimination-Based Grievance Procedures


Employees are encouraged to resolve issues through discussion with the immediate supervisor(s) and may contact the Office of Employee Management Services for consultation on nondiscrimination matters at any time. If resolution is not attained, a formal or informal grievance may be filed with the Office of Employee Management Services. Employees shall be free to discuss matters with the Office of Employee Management Services and file grievances without fear of reprisal.

[BYPASS– If the complainant wishes to bypass STAGES ONE and TWO and go directly to STAGE THREE, a letter requesting a Human Resources board hearing may be addressed to the assistant director of the Office of Employee Management Services (or designee) within 10 working days of the occurrence. In addition to the letter, the complainant will be required to complete the appropriate grievance form and provide supporting documents. These documents will be provided to the party charged, who will prepare a response and submit any supporting documents to Office of Employee Management Services (or designee) within 10 working days of receipt of complainant’s documents. Employee Management Services (or designee) will provide the complainant with a copy of materials submitted by the party charged and provide the Human Resources Board with copies of all appropriate documents.]

STAGE ONE

A. Informal Complaint

The complainant may elect to pursue an informal complaint by meeting with the Office of Employee Management Services within 15 working days of occurrence of the grievable item. During the informal stage, the complainant may elect not to self identify. The remedy may include seminars, exchange of information, newsletter articles, memorandums, administrative review, or counseling. Informal settings (where the parties are identified) may also include mediation at the departmental level or other direct communication with both parties. If the informal filing does not result in resolution, the complainant may exercise the formal grievance process within 5 working days of completing the informal complaint process.

B. Formal Grievance

Completion of the Office of Employee Management Services Grievance Form is required within 15 working days after the occurrence or within 5 working days following the informal complaint process. The complainant will include the basis of the grievance which identifies specific employment practices and procedures. The grievance will be accepted or denied in writing by the Office of Employee Management Services (or designee). If denied, the complainant may appeal in writing to the Office of General Counsel (or designee) within 5 working days of receipt of written denial letter. If accepted, the party charged will be provided with a copy of the complaint documents and will be extended 10 working days to respond. Additional time may be granted on a case-by-case basis by written request. The complainant will be provided a copy of the response, and may amend the initial grievance within 2 working days of receiving the response. If amended, the party charged will also be extended 2 working days to provide any additional documentation. The Office of Employee Management Services (or designee) will investigate relevant issues, secure appropriate statements, and prepare a report for administrative review.

C. Disclosure of Witness Statements

All witness statements are the responsibility of the person filing or responding to the grievance(s). Witness statements provided by either complainant or the party charged must be provided to the opposing party at the time the statements are presented to the Office of Employee Management Services. The Office of Employee Management Services may conduct any further investigation deemed appropriate, which may include additional witness statements. The result of that investigation is the work product of the investigator and not subject to disclosure.

 

STAGE TWO – Administrative Review

The assistant vice president for human resource services (or designee) will review the report provided by the Office of Employee Management Services and render a decision. The determination letter will be transmitted in writing by the Office of Employee Management Services (or designee) to the complainant, party charged and appropriate administrators. If the complainant or respondent is not in agreement with the decision, new or additional documentation may be provided through the Office of Employee Management Services to the assistant vice president for human resource services (or designee) within 5 working days of receiving the determination letter. Following the review of the new or additional information, a final decision will be issued from the assistant vice president for human resource services (or designee) within 5 working days of receipt of the information to the complainant and party charged.

 

STAGE THREE – Board Review

[The Human Resources Board may be convened to address: terminations, suspensions, demotions, and related issues resulting in reduction/loss of wages and/or appeals of overall unsatisfactory, needs improvement, or does not meet expectations performance evaluation ratings for regular non-probationary staff employees.]If the complainant does not agree with the assistant vice president for human resource service decision in STAGE TWO, a request to convene the Human Resources Board may be submitted in writing to the Office of Employee Management Services within 5 working days of receiving the decision from the assistant vice president of human resource services. The complainant and party charged will be required to provide all documentation to be reviewed by the Human Resources Board according to procedures cited herein. The Human Resources Board will hold a hearing and issue a recommendation to the executive vice president and provost (or designee) within 5 working days of said hearing. Should the Human Resources Board require additional time, the chair will notify the complainant, party charged, and executive vice president and provost. The executive vice president and provost (or designee) will issue a final decision in writing to both complainant and party charged within 5 working days of receiving the Human Resources Board’s recommendation. STAGE THREE concludes the appeal process for non-probationary staff employees at the university.

 

HUMAN RESOURCES BOARD OPERATING PROCEDURES


A. The Complainant is Responsible for Providing The Office of Employee Management Services (or Designee) with

  1. A written request for a Human Resources Board hearing within 5 working days of completing STAGE TWO or within 10 working days if STAGES ONE and TWO are bypassed.
  2. A list of witnesses (by name, title, employer, telephone number, and order of appearance at the hearing). It is the complainant’s responsibility to secure permission from and arrange for attendance of named witnesses prior to submittal.
  3. Seven copies of all documentation to be reviewed during the hearing, plus an additional copy for each individual named in #2 above.
  4. The name(s) of legal counsel and/or other representative(s) who will be in attendance at the hearing. Legal counsel or representative(s), who are not university employees, may only actively participate in the hearing process for appeals involving termination, demotion, or suspension. Cross examination of witnesses will be permitted through the chair. Any questions for parties charged/complainant(s) may be channeled through the chair, who will determine the relevance and appropriateness of the question.
  5. A written request for an open or closed hearing.
    1. Open Hearing – an open hearing is one in which the public may attend, but may not participate in the hearing. In an open hearing, witnesses may stay only after completing their testimony.
    2. Closed Hearing – a closed hearing is one in which only the complainant and party charged may be present to offer testimony to the Human Resources Board. In a closed hearing, witnesses will be present only during their testimony.
  6. A request for special accommodation(s), if needed.

B. The Party Charged is Responsible for Providing to the Office of Employee Management Services (or Designee) with

  1. A list of witnesses (by name, title, employer, telephone number, and order of appearance at the hearing). It is the responsibility of the parties charged to secure permission from and arrange for attendance of named witnesses prior to submittal.
  2. Seven copies of all documentation to be reviewed during the hearing, plus an additional copy for the complainant.
  3. The name(s) of legal counsel and/or other representative(s) who will be in attendance at the hearing. Legal counsel or representative(s), who are not university employees, may only actively participate in the hearing process for appeals involving termination, demotion, or suspension. Cross examination of witnesses will be permitted. Parties charged will not be subjected to cross examination.
  4. A written request for an open or closed hearing.
  5. A request for special accommodation(s), if needed.

C. The Office of Employee Management Services (or Designee) is responsible for ensuring that

  1. The Human Resources Board has been notified in writing of the hearing.
  2. The parties charged, complainant(s) and Human Resources Board members are advised in writing of the date, time, and location of the hearing.
  3. The complainant and party charged are informed in writing of time constraints of 2 hours each to present material, including witness testimony and rebuttal. (Additional time may be considered, if requested).
  4. Grievance procedures and exchange of statements are provided to both the complainant and party charged at least 48 hours prior to the hearing.
  5. A pre-hearing orientation is provided to the Human Resources Board for purposes of receiving documents, instructions, and appropriate policies and procedures.
  6. An agenda is prepared for the hearing and time constraints are monitored.
  7. An official tape recording of the hearing is available, upon written request, to the complainant and/or party charged.
  8. Reasonable accommodations are made, upon request.

D. The Chair is Responsible for ensuring that

  1. An open or closed hearing is stated for the record during the hearing.
  2. Instructions at the hearing are recorded for the record.
  3. The nature of the charge is clearly understood.
  4. All issues presented during testimony are relevant to the charge. It is the chair’s prerogative to determine when issues have been clarified and may terminate the process accordingly.
  5. Additional documentation (if provided by either party after documents have been submitted) is pertinent and reasonable.
  6. Both parties are extended an opportunity for an executive Session at the end of the Human Resources Board hearing (not recorded). An executive session provides the complainant and party charged with an opportunity to present any relevant extenuating or mitigating matters after closing statements, not to exceed 5 minutes each. During an executive session, only the voting board members and party requesting executive session will be present.

E. The Human Resources Board is responsible for ensuring that

  1. An open or closed hearing is designated after considering the sensitivity of the issues, in conjunction with any specific requests from the complainant or party charged.
  2. A conflict of interest situation is called any time a Human Resources Board member’s relationship or association (personal or business) with either the complainant or party charged may interfere with the process.
  3. A written Human Resources Board recommendation is forwarded to the executive vice president and provost within 5 working days following the hearing.

F. Nonexempt Human Resources Board

The Nonexempt Human Resources Board members are restricted to two consecutive terms of 3 years each. The Nonexempt Human Resources Board will hear grievances from nonexempt employees only. Representatives include:

  1. Chair: Dean selected by the executive vice president and provost to serve for 3 years. The previous chair will serve as alternate and assume all duties of the chair in case of absence. [Note: The same chair will serve on both nonexempt and exempt boards.]
  2. Member: Nonexempt employee and alternate selected from and by the NMSU Employee Council to serve for 3 years.
  3. Member: Nonexempt employee and alternate selected from and by the Institutional Equity/EEO Advisory Committee to serve for 3 years.
  4. Member: Nonexempt employee and alternate appointed by the Chancellor to serve for 3 years.
  5. Member: The Office of Employee Management Services (or designee), permanent, ex officio member.
  6. Member: Assistant Vice President for Human Resource Services permanent, ex officio member.

G. Exempt Human Resources Board

Exempt Human Resources Board members are restricted to two consecutive terms of 3 years each. The Exempt Human Resources Board will hear grievances from exempt employees only. Representatives include:

  1. Chair: Dean selected by the executive vice president and provost to serve for 3 years. The previous chair will serve as alternate. [Note: The same chair will serve on both nonexempt and exempt boards.]
  2. Member: Exempt employee and alternate selected from and by the NMSU Employee Council to serve for 3 years
  3. Member: Exempt employee and alternate selected from and by the Office of Institutional Equity/EEO Advisory Committee to serve for 3 years.
  4. Member: Exempt employee and alternate appointed by the Chancellor to serve for 3 years.
  5. Member: The Office of Employee Management Services (or designee), permanent, ex officio member.
  6. Member: Assistant vice president for human resource services, ex officio member.