3.5.0 Faculty Grievance Procedure

A. Purpose

The purpose of this policy is to provide a timely, efficient, and equitable method for resolving faculty complaints arising out of some condition or aspect of the employer-employee relationship.

B. Persons Affected

Faculty

C. Definitions

Not applicable.

D. Policy and Procedures

It is important to collegiality that problems arising out of administrative decisions or actions affecting the academic standing or conditions of employment of members of the faculty be reviewed and resolved in a fair, efficient and equitable manner.

A. Policy

  1. The Faculty Grievance Procedure is intended to provide an effective process for the review and equitable resolution of contentions of a faculty member that an administrative decision or action affecting the faculty member has not been made in substantial compliance with established University criteria or procedures; that there is no rational basis for the decision or action; or that the decision or action was based upon criteria that were unlawful under the state or federal constitution, laws or court decisions. All faculty are entitled to present a grievance pursuant to this procedure.
  2. Each faculty member may express a grievance through the following procedure with the assurance of timely and thorough consideration. Grievants utilizing the grievance procedure in good faith shall not be subject to retaliation related to the filing of a grievance.
  3. The grievance procedure described replaces all other formal departmental, college or University grievance procedures except those related to matters to which this procedure does not apply, as listed in B.(2). A faculty member has the right of self-representation at any step in the grievance procedure and/or may choose to present a grievance through legal counsel or personal representative at any stage of the procedure.

B. Issues Subject to Grievance Procedures

  1. The primary purposes of the Faculty Grievance Procedure are to protect academic freedom and promote academic responsibility. The Faculty Grievance Procedure is available for review of complaints related to an administrative decision or action that affects a faculty member and relates to wages; hours of work; working conditions; merit salary increase; promotion; assignment or reassignment of duties; the denial or withdrawal of a University benefit or privilege; assignment of University facilities, University equipment or support staff; or a reduction in salary or rank.
  2. The Faculty Grievance Procedure does not apply to
    1. Evaluations of a faculty member's professional performance made by a faculty member, faculty committee or administrator acting pursuant to University policy or procedures unless such evaluations are made in violation of the policy set forth in A.(1).
    2. Adverse actions or decisions that result from procedures provided for in Sections 6.3 (termination for cause), Section 6.(11) (program abandonment) or Subsection 6.(12) (reductions due to financial exigency) of Rules and Regulations of the Board of Regents of The University of Texas System.
    3. Decisions that are reviewable pursuant to Subdivision 6.35 (non-reappointment of tenure track faculty) of Rules and Regulations of the Board of Regents of The University of Texas System.
    4. Actions or decisions described in Section B(1) that are reviewable pursuant to procedures provided by the University's Handbook of Operating Procedures or the Rules and Regulations of the Board of Regents of The University of Texas System.

C. Faculty Grievance Panel

  1. In order to be eligible to serve as a member of a Grievance Panel a faculty member must
    1. be a full-time member of the faculty with the rank of Assistant Professor or above,
    2. not be appointed to an administrative position of department chair or above,
    3. not be a member of the Faculty Affairs Committee of the Faculty Senate, and
    4. not be a faculty member of the same department as the faculty member who files a grievance.
  2. The Faculty Grievance Panel (hereafter Panel) shall consist of five faculty members, no fewer than three of whom shall be tenured. Four members shall be chosen by the Faculty Affairs Committee as required by drawing names one at a time, at random, from the twelve (12) members of the Hearing Committee as described in the section entitled "Hearing Committee" in the Handbook of Operating Procedures. If, during the drawing process, two (2) untenured faculty members are already on the list any further untenured faculty member drawn shall be replaced by another name drawn at random. After selecting four members in this manner, the Faculty Senate President shall appoint the fifth member from the remaining tenured faculty of the Hearing Committee to serve as the Chairperson of the Panel. The President of the Faculty Senate shall notify the members of the Panel and the parties to the grievance that the Panel has been selected.
  3. Each party to the grievance may challenge the impartiality of any member of the Panel. A challenge for impartiality must be in writing and must state the facts upon which the challenge is based. The challenged member shall be the sole judge of whether he/she is capable of considering the evidence and determining the facts with impartiality.
  4. When a member of a Panel determines that he/she is not capable of considering the evidence and determining the facts with impartiality, he/she may be excused, and the vacancy will be filled in the same manner as the original appointment.

D. Grievance Procedure--General

  1. The grievant may elect to take one of two (2) courses of action in the grievance process
    1. The faculty member may request that a mediator assist parties in reaching an acceptable settlement, or
    2. The faculty member may present his or her concerns in writing to the administrator responsible for the action that is the subject of the grievance.
  2. Mediation
    1. The Faculty Senate Executive Committee will be charged with the appointment of a mediator who is a tenured member of the faculty but not a current member of the Faculty Senate, the Faculty Affairs Committee or the University Hearing Committee. The mediator will serve for a term of one year.
    2. When a grievance is referred to a mediator, the mediator shall have a period of no more than ten (10) work days to assist the parties in reaching an acceptable settlement. The mediator shall report the results of the mediation to the Chairperson of the Faculty Affairs Committee. If a settlement acceptable to the parties has not been reached, the grievant may proceed with the formal grievance procedure as described in D.(3).
  3. Formal Grievance Procedure
    1. A faculty member affected by a grievable decision or action may request from the administrator who made the decision or took the action that is the subject of the grievance a written explanation of the reasons for the decision or action within ninety (90) days after the date he or she knew or reasonably should have known of the decision or action. The request must be in writing, must include the faculty member's specific questions and concerns, and must state the resolution or relief sought. The administrator must respond in writing within ten (10) working days, either stating the reasons for the questioned decision or action and explaining the procedures, standards and criteria used or providing an opinion that the matter at issue is not grievable under this policy. It is expected that the majority of grievances will be resolved at this stage.
    2. If the response of the administrator responsible for the grievable decision or action does not result in a satisfactory resolution of the matter, the faculty member may, within ten (10) working days of being notified of the decision, appeal the administrator's decision to the next higher level of administration in the same manner as specified in D.(3).(a) until it has been reviewed by the Provost and Vice President for Academic Affairs. A response shall be provided in writing to the faculty member within ten (10) working days at each level of appeal.
    3. The faculty member may elect to appeal the decision of the Provost and Vice President for Academic Affairs to the President of the University or may proceed to initiate a request for Grievance Hearing pursuant to Section E. The appeal to the President must be made within ten (10) work days after the decision of the Provost and Vice President for Academic Affairs. The decision of the President of the University will be final and the faculty member will not be entitled to further pursue the Grievance Procedure with respect to the decision or action that is the subject of this grievance process.
    4. Except as provided in Section E, if no appeal has been made within ten (10) working days from the response at the last administrative level, the decision of the administrator at that level will stand and no further appeals shall be available and no further formal grievance will be processed.

E. Pre-Hearing Procedures

  1. A faculty member who is unwilling to accept the decision made by the Provost and Vice President for Academic Affairs in the grievance process may initiate the Grievance Hearing Procedure within thirty (30) days after receiving the written response required by Section D.(3).(b) by notifying the Chairperson of the Faculty Affairs Committee in writing of the request for a hearing.
  2. The Faculty Grievance Panel is selected and the involved parties are notified as required in Section C.(2).
  3. The Faculty Affairs Committee may, at its discretion and with the consent of all parties, consolidate the grievances of two (2) or more faculty members who make allegations of the same type against the same administrator and who petition the Faculty Affairs Committee to have their individual grievances heard by the same Panel. In such situations the Panel shall make separate findings and recommendations regarding the grievance of each faculty member.
  4. After receiving notification of the final constitution of the Panel, the faculty member has five (5) working days in which to file the following documents with the Chairperson of the Panel:
    1. The faculty member's written request to the administrators pursuant to Sections D.(3).(a) and D.(3).(b).
    2. The written response of the administrators under Sections D.(3).(a) and D.(3).(b).
    3. A written statement of specific factual allegations that the faculty member contends establish that the contested decision or action
      1. was not made in substantial compliance with established University criteria or procedures,
      2. has no rational basis, or
      3. was based upon criteria that are unlawful under the state or federal constitution, laws, or court decisions.
    4. Notice of whether the faculty member will be represented by legal counsel or a personal representative in the Formal Grievance Procedure with the name and address of such person.
  5. On the basis of the material filed by the faculty member pursuant to Section E.(4), the Panel shall determine and notify the faculty member within ten (10) working days whether the decision or action is reviewable under this Procedure. Unless the Panel determines that the subject of the decision or action is covered by this Procedure and that the facts alleged by the faculty member, if proven by credible evidence, support a conclusion that the decision or action (a) was not made in substantial compliance with established University criteria or procedures, or (b) has no rational basis, or (c) was based upon criteria that are unlawful under the state or federal constitution, laws, or court decisions, the Panel shall dismiss the grievance. Four members of the five member panel may decide to dismiss the grievance. Such dismissal decision shall be transmitted in writing to the faculty member and shall conclude the Faculty Grievance Procedure. A decision by the Panel to hear the faculty member's grievance shall be transmitted to the faculty member in writing. Copies of the document filed pursuant to Section E.(4) shall be forwarded by the Chairperson of the Panel to the administrator who made the decision or took the action that is the subject of the grievance. The faculty member may then begin to request documents from the administration pursuant to Section E.(12) of this Procedure.
  6. After a formal grievance is filed, members of the Grievance Panel shall refrain from contact with the parties regarding the subject matter of the grievance. Questions regarding procedures of the hearing should be in writing and addressed to the Chairperson of the Panel.
  7. The Chairperson of the Panel will schedule the grievance hearing at the earliest practical date. The Chairperson will notify the parties to the grievance of the date, time, and place for the hearing at least ten (10) working days prior to the hearing date.
  8. The date for the grievance hearing may be postponed only for good cause. Requests for postponement must be in writing addressed to the Chairperson of the Panel and shall state the reasons for the requested postponement. If the Chairperson determines that there is good cause for postponement a new hearing date shall be selected and the parties to the grievance notified.
  9. At least five (5) working days prior to the date for the hearing, the parties to the grievance shall each furnish the other the names of the witnesses that they intend to have testify; a summary of their expected testimony; and a copy of each document, record, or exhibit that they intend to offer as evidence at the hearing.
  10. A faculty member has the right of self-representation at any step in the Grievance Hearing Procedure and may choose to present a grievance through legal counsel or personal representative. If and only if the faculty member is represented by legal counsel during the Grievance Hearing Procedure, the University administrator will be represented by the Office of General Counsel of The University of Texas System.
  11. The parties to the grievance shall be responsible for notifying the witnesses who will testify on their behalf of the date, time, and place for the hearing.
  12. Upon written request and in accordance with the Texas Public Information Act, the University shall provide a faculty member with copies of University documents that the faculty member intends to offer as evidence in the hearing before the Panel unless such documents contain information that is made confidential by statute or court order.
  13. University employees who are requested to be witnesses at a grievance hearing are encouraged by the University to testify regarding matters within their personal knowledge.

F. Formal Grievance Hearing Procedures

  1. The Chairperson of the Faculty Grievance Panel shall preside at the hearing and has final authority with respect to all proceedings before the Panel, including the responsibility for ensuring that the grievance hearing is conducted in accordance with this Procedure and that the parties to the grievance, their legal counsel or personal representative, and witnesses conduct themselves in an orderly manner. The Chairperson should begin the hearing by briefly outlining the hearing procedures and informing the parties that all procedural questions and all objections regarding testimony and exhibits are to be directed to and ruled upon by the Chairperson.
  2. All proceedings before the Grievance Panel will be recorded by the University. This recording, the documents filed by the faculty member pursuant to Section G.(1), and documents and exhibits admitted into evidence during the hearing shall be the official record of the grievance hearing. The parties to the grievance may have access to the official record and will be furnished a copy at cost.
  3. The hearing will be closed to everyone except the parties to the grievance, their legal counsel or personal representatives, the Faculty Grievance Panel, witnesses while giving testimony and the person operating the recording equipment.
  4. Witnesses should testify from personal knowledge and without regard to what other witnesses may say. Therefore, the Chairperson will require all potential witnesses except the parties to the grievance to leave the hearing room until such time as they are called to testify. Witnesses called by one party may be cross-examined by the other party. The Chairperson and members of the Grievance Panel may ask questions of a witness after the parties have concluded their examinations.
  5. In all cases, the faculty member shall have the burden of proof.
  6. After the hearing has been called to order by the Chairperson, the hearing shall proceed as follows:
    1. The faculty member, legal counsel or personal representative may make a brief statement explaining the basis for the grievance and what he or she contends that the evidence will show.
    2. The administration or legal counsel may make a brief statement explaining the basis for the challenged decision or action and what he or she contends that the evidence will show.
    3. The faculty member, legal counsel or personal representative may call witnesses to testify and may offer documentary evidence.
    4. After witnesses and evidence have been presented by the faculty member, the administrator or legal counsel may call witnesses to testify and may offer documentary evidence.
    5. Each party may call witnesses or offer documentary evidence in rebuttal to the testimony of witnesses or documentary evidence of the other party.
    6. After the presentation of evidence has been concluded by both parties, each party may make a brief statement that summarizes the evidence that was admitted and the conclusion(s) that the Grievance Panel is requested to reach on the basis of that evidence. As the party with the burden of proof, the faculty member has the right to address the Panel first and may also make a closing statement after the statement of the administrator. The Chairperson shall determine the appropriate time limit for the statement by each party and shall require that the time limit be observed.
    7. The Chairperson will adjourn the hearing and, upon the basis of the evidence admitted at the hearing, the Panel will make a written report of its findings within ten (10) working days after the hearing is adjourned. The findings and recommendations of the Panel shall be limited to the issues contained in the documents filed by the faculty member pursuant to Section E.(4).(a). The Panel may submit majority and minority findings and recommendations as appropriate.
    8. Although the Panel is constrained to act within the rules contained in this Faculty Grievance Procedure, the Panel is expected to report, by a memorandum to the President of the University and the President of the Faculty Senate that is separate from its written grievance report to the President of the University, issues arising from grievances that are not adequately or appropriately addressed by the applicable University rules.
  7. Each member of the Faculty Grievance Panel is required to be in attendance throughout the hearing. After the hearing has begun, any member who is unable to continue in attendance because of illness or extenuating circumstances shall not participate further in the hearing or other proceedings under this Procedure. Provided at least three Panel members continue to serve, the proceedings under this Procedure shall continue to completion.
  8. The Chairperson must rule upon objections that are made to the admissibility of evidence offered by the parties.
    1. In order to be admissible, the documents or testimony offered must be relevant to issues that are to be decided by the Panel. Generally, evidence is relevant if it tends to prove or disprove a fact that is at issue. There must be some logical connection between the offered evidence and a fact that is in dispute. Upon objection, evidence that is not relevant should be excluded.
    2. Testimony of a witness should be based upon statements of the parties personally heard or events personally observed by the witness. Fundamental fairness requires that a witness offered by a party be subject to cross-examination by the other party in order to determine whether the witness is testifying from personal knowledge and to test the credibility of the witness. If the knowledge of a witness regarding statements attributable to a person or the occurrence of an event is based upon what the witness has read or has been told by someone rather than what the witness personally heard or observed, testimony of the witness should be excluded upon objection. Written or recorded testimony of a witness will not be admitted except by agreement of the parties to the grievance.
    3. University records and correspondence of University administrators produced in the ordinary course of business shall be admissible, subject to objections as to relevancy.
    4. Evidence that is admissible but is merely cumulative of evidence already in the record should be excluded by the Chairperson upon objection or upon determination by the Chairperson that additional evidence of the same nature as that already admitted is merely repetitious. It is within the discretion of the Chairperson to determine when further testimony on an issue becomes a waste of time.
    5. It is the responsibility of the Panel to make fair and impartial findings and recommendations to the President of the University. When irrelevant evidence is offered without objection, the Panel should recognize it as such and disregard it in its deliberations.
  9. As the party with the burden of proof, the faculty member has the burden of going forward with the evidence at the grievance hearing and has the burden of proving by the greater weight of the credible evidence that: the decision or action that is the subject of the grievance was not made in substantial compliance with established University criteria or procedures; or that there is no rational basis for the decision or action; or that the decision or action was based upon criteria that are unlawful under the state or federal constitution, laws, or court decisions.
    1. Failure to comply with established University criteria or procedures will not be considered substantial if the administrator who made the decision or took the action in question proves by the greater weight of the credible evidence that the same decision or action would have resulted even if the omitted criteria or procedure had been applied or followed.
    2. In determining whether a decision or action is without a rational basis, the Panel may not concern itself with whether the decision or action is wise or whether the Panel agrees with the decision or action. The greater weight of the credible evidence must show that the decision or action is arbitrary and irrational. If reasonable minds could differ as to whether the basis given by the administrator supports the decision or action, it is not arbitrary and irrational.
    3. A decision or action is based upon criteria that are unlawful if the greater weight of the credible evidence demonstrates that the decision or action was made because of the faculty member's race, religion, national origin, disability, sex, age, veteran status, protected speech activity, protected right of association or other basis that may be prohibited by the state or federal constitution, laws or court decisions.
  10. The Faculty Grievance Panel is the sole judge of the credibility of a witness. A witness is credible when he or she is believable. In determining the credibility of a witness the Panel may consider the demeanor of the witness, the opportunity of the witness to observe events or to acquire personal knowledge that is the subject of the testimony, any interest that the witness may have in the determination of the issues or any other factor that is relevant to whether the witness is believable.
  11. Facts at issue may be proven by direct or indirect evidence. Direct evidence is testimony by a witness who saw the events occur or who heard words spoken that establish the fact in question. Indirect evidence includes testimony of a witness who saw events occur or who heard words spoken that establish a collateral fact or circumstance from which the fact at issue may be logically inferred from common knowledge or experience.

G. Review and Decision of the President of the University

  1. The findings and recommendation of the Faculty Grievance Panel (majority and minority if appropriate), the tape recording of the grievance hearing, the documentary evidence admitted during the grievance hearing, and the documents filed by the faculty member to initiate the Formal Grievance Procedure shall constitute the record of the grievance hearing and will be forwarded to the President of the University by the Chairperson of the Panel within ten (10) working days after the grievance hearing is adjourned.
  2. The President of the University will review the record and the findings and recommendations of the Panel. Based upon the official record, the President of the University may approve such findings and recommendations, may make modifications, or may make different findings and conclusions. Within 20 working days after receipt of the record of the grievance hearing and the findings and recommendations of the Panel, the President of the University will make findings of fact based upon the record and render a decision on the issue(s) that are the subject of the grievance hearing. The decision of the President of the University is final and will be delivered to the parties to the grievance, the Chairperson of the Faculty Grievance Panel, the Chairperson of the Faculty Affairs Committee, the President of the Faculty Senate, the dean of the school and the Provost and Vice President for Academic Affairs.

H. General Provisions/Definitions

  1. Any time limit provided for in this Procedure may be extended for no more than ten (10) working days by written agreement of the parties to the grievance filed with the appropriate Chairperson at least two (2) working days prior to the expiration of the applicable time limit.
  2. If a faculty member who has filed a grievance fails to pursue the grievance to the next appropriate step within the time limit prescribed by this Procedure or fails to file a written agreement extending the time for taking such action, the faculty member shall be presumed to have accepted the decision that has been made at the previous stage of the Procedure.
  3. A faculty member who does not receive a response to a grievance within the time limit prescribed by this Procedure or within an agreed extension to such time limit, may proceed to pursue his or her grievance to the next step of the Procedure.
  4. Resort to this Procedure does not prevent a faculty member from pursuing the issues of his or her grievance in any non-University proceeding. However, if a faculty member seeks resolution of the issues in a non-University forum, he or she shall not be entitled to file a grievance under this Procedure or to pursue a grievance under this Procedure that was filed prior to presenting such issues to a non-University forum for resolution.
  5. The term "working day" means a day on which classes or examinations are scheduled on the official academic calendar of the University. The term "day" means a calendar day.

E. Responsibilities

See Policies and Procedures for delineation of responsibilities of various committees, panels, university administrators, and other interested parties.

F. Review

The Divisional Head for this policy is the Provost. This policy shall be reviewed every five years or sooner if necessary by the Provost and Vice President for Academic Affairs, the Council of Academic Deans, the Faculty Senate President and the Student Government Association President.

ORIGINALLY APPROVED: 12/01/2001
LAST AMENDED: 04/22/2009