FGP User's Manual

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A User’s Manual for The Faculty Grievance Policy:

 For Faculty, Academic Staff, and Administrators

 Prepared by the Faculty Grievance Office

Revised, January 19, 2016

INTRODUCTION

This manual provides information to assist faculty, academic staff and administrators who use the Faculty Grievance Policy (FGP).  In particular, it clarifies procedural issues that are not explicitly discussed in the FGP.  Prepared by the Faculty Grievance Office and reviewed by the University Committee on Faculty Affairs (UCFA), this document reflects the legislative intent of the FGP and the administrative experience accumulated since the FGP was established in 1972.  The contents of this manual are interpretative and do not replace or supersede provisions of the FGP.

Questions concerning the FGP may be directed to the Faculty Grievance Official (FGO) at the Faculty Grievance Office.

W38 Owen Graduate Center
517-353-8884
fgo@msu.edu

 

 

Table of Contents

  1.       Who May File a Grievance and Against Whom?

  2.       What is Grievable?

  3.       Initiation of Grievances

  4.       Informal Resolution

  5.       Hearing Panel Composition

  6.       Roles of Grievance Participants

  7.       Initial Hearing Procedures

  8.       Outcome of Initial Hearings

  9.       Appeals

10.       Maintaining and Respecting Confidentiality

11.       Relationship With Other Proceedings

                        

 


 

 

SECTION 1:  WHO MAY FILE A GRIEVANCE AND AGAINST WHOM?

Article III of the FGP provides that:

A faculty or academic staff member may file a formal grievance against an administrator that alleges a violation of University, college, department, school, or unit policy or established practice.

Article II of the FGP provides the following definitions:

 Faculty member:  A person with a paid University appointment at the rank of professor, associate professor, assistant professor, or instructor, including those with fixed term and visiting status. 

 Academic Staff:  A person with a paid University appointment at the rank of academic specialist, lecturer, assistant instructor, research associate, or librarian, including those in a continuing appointment system and those with fixed term and visiting status.

Administrator: A person appointed as the head of an administrative unit, school director, department chair, dean, or separately reporting director.  The President, the General Counsel and members of the General Counsel’s staff, and the FGO are not subject to grievance under this Policy.

A grievant must be employed by the University, either on a full-time, part-time, or temporary basis, at the time the grievance is formally filed.  However, it is not required that the grievant be employed by the University at the time a final decision is rendered.

In those instances in which a respondent-administrator named in a grievance no longer holds the administrative position identified in the grievance, the grievance will be redirected against the respondent’s replacement.  However, the original respondent will be permitted to submit written evidence and participate in any formal hearing. 

A grievance must be filed by an individual regardless of whether it is filed on behalf of that individual only, or on behalf of that person and others similarly situated.  Separate grievances raising related allegations or arising from a common set of facts may be consolidated pursuant to Article III.G of the FGP.

Since the FGP is intended to resolve disputes only between faculty members and administrators, a faculty member who also holds an administrative appointment may file a grievance against an administrator only when the grievance relates to his/her status as a faculty member.  Grievances may not be filed by a faculty member against another faculty member.  However, the FGO may be requested to assist informally in resolution of inter-faculty disputes. 

 

SECTION 2:  WHAT IS GRIEVABLE?

Grievances must allege a violation of University, college, department, school, or unit policy or established practice. 

Article II of the FGP provides the following definitions:

Grievance:  A written complaint filed by a faculty or academic staff member against an administrator of the University alleging a violation of University, college, department, school, or unit policy or established practice.

Policy:  A written statement of principles and procedures that govern the actions of faculty, academic staff, and administrators, including written rules, bylaws, procedures, or standards. 

Practice:  Actions taken by the administrator within an administrative or academic unit based on customs or standards in that unit that are usually unwritten but of long-standing duration, and for whose existence the grievant can offer evidence.

Violation:  A breach, misinterpretation, or misapplication of existing policy or established practice.

The procedures contained in the FGP are not intended to be used to challenge the desirability of unit or University policies.  For example, a faculty member should not file a grievance under the FGP to disagree with the fact that the University has established an Outside Work for Pay policy.  Such challenges should be addressed through the academic governance system and/or appropriate administrative offices.  The faculty member may, however, file a grievance to allege that an administrator has violated a particular policy or has established a practice in violation of University, college, and/or department policy.

If a grievance alleges violation of an established practice rather than a policy violation, the FGO will determine as part of his/her initial jurisdictional decision whether such a practice exists.  This provision is not intended to require the FGO to conduct an elaborate fact-finding hearing.  Such an exercise is most appropriately conducted as part of the grievance hearing.  Rather, the purpose of this provision is to require that the grievant provide the FGO with some tangible evidence that a practice has existed over a period of time and clearly something more than a mere assertion that a practice exists.   

The procedures contained in the FGP are not intended to replace or diminish the role of the academic unit in making decisions about a faculty/academic staff member’s professional competence.  For example, a grievance panel hearing a case involving promotion and tenure should appropriately consider whether the unit’s bylaws and promotion and tenure standards were followed.  The grievance panel should not, however, seek to substitute its own judgment for that of the academic unit regarding the substance of the promotion and tenure decision.  In other words, it is not the role of the grievance panel to determine whether the administrator reached the same decision the panel would have reached regarding promotion and tenure.  Rather, the role of the grievance panel is to determine whether the grievant has proven by a preponderance of the evidence that there has been a violation of a policy or established practice.

 

SECTION 3:  INITIATION OF GRIEVANCES

Article III.A of the FGP provides:

A faculty /academic staff member who feels aggrieved may discuss his/her complaint in a confidential conference with the Faculty Grievance Official (“FGO”). The FGO shall inform the faculty /academic staff member if the potential grievance falls under the jurisdiction of another University policy rather than this Policy.

Article III.B of the FGP provides:

To file a grievance, an individual faculty or academic staff member must submit a written, signed statement (the “grievance”) to the FGO within 28 days of the date that the grievant knew or should have known of the alleged violation.   The grievance must contain the following information:

    1. the specific policy or established practice that has allegedly been violated;
    2. the date of the alleged violation and the date on which the grievant became aware of the alleged violation;
    3. the facts relevant to the alleged violation;
    4. the person(s) against whom the grievance is filed (the “respondent”); and
    5. the redress sought.

 

Articles III.B and III.C of the FGP describe the process by which both parties may submit documents to the FGO regarding the FGO’s initial jurisdictional decisions.  The FGO makes initial jurisdictional decisions within 14 days after the grievance is filed regarding the following requirements:

    • Whether the grievant has standing under the Faculty Grievance Policy;
    • Whether the grievance has been filed in a timely fashion;
    • Whether the grievance identifies an appropriate respondent(s);
    • Whether the grievance adequately identifies the existing policies and/or established practices alleged to have been violated;
    • Whether the grievance contains a reasonably adequate statement of the facts relevant to the complaint; and
    • Whether any other jurisdictional issue(s) need to be decided in connection with the initiation of the grievance and, if so, an explanation of such issues.

Both parties have the right to appeal any of the FGO’s decisions on these matters by filing a written statement, accompanied by supporting rationale, with the FGO within 14 days of the issuance of such decisions.  In the event of an appeal, the FGO submits his/her initial decisions, together with the appeals from the parties,  responses to the appeals by the opposing parties and a written response by the FGO, to a three-person  jurisdictional appeals panel drawn by the FGO from the membership of the University Hearing and Appeals Boards.  This jurisdictional appeals panel will deliberate and submit to the FGO its written decisions on the issue(s) being appealed within 7 days of its convening by the FGO.  The FGO will then forward these decisions to the parties within 7 days of their receipt from the jurisdictional appeals panel. 

During the pendency of a grievance, parties to the grievance and/or their representatives should not communicate with any University administrator(s) responsible for making decisions on any matter related to the pending grievance.

 

SECTION 4:  INFORMAL RESOLUTION

Following the jurisdictional decision process, the FGO and the parties generally attempt to resolve the grievance informally.  Such efforts usually include meetings between the FGO and the parties, both separately and, if appropriate, jointly.  These discussions enable the FGO to engage in additional fact-finding, clarify questions that either party may have about the FGP, and determine whether the dispute can be resolved to the mutual satisfaction of both parties without resort to the formal hearing mechanisms. 

During the informal resolution stage, the FGO may forward suggestions for bridging the gap between the parties. Discussions regarding informal resolution may not be disclosed at subsequent formal proceedings.  The FGO may also recommend that the grievance be dropped for lack of merit or another just cause.  Such recommendation, however, is not binding on the grievant.

If the FGO determines that the grievance cannot be resolved informally, both parties will be so notified.  A grievant wishing to pursue the grievance further must then submit to the FGO within 14 days of receipt of such notice a written request for a formal hearing.  Failure to submit such request will constitute a waiver of the faculty member’s right to pursue the grievance.

 

 

SECTION 5:  HEARING PANEL COMPOSITION

Formal grievance and appeals hearings are conducted by five member faculty panels randomly selected by the FGO pursuant to Article III.H of the FGP.  The FGO takes necessary precautions to avoid any conflict of interest on the part of the hearing panel members.  In particular, no member of the hearing panel shall be from the same department(s) (or college in the case of the non departmental colleges) as the grievant or respondent.  A faculty member or librarian who also holds an appointment as an administrator is not eligible to serve. 

A hearing panel selected for a grievance involving the denial of reappointment or tenure in the tenure system shall be comprised solely of tenured faculty members.  A hearing panel selected for a grievance involving the denial of promotion to full professor shall be comprised solely of tenured faculty members who hold the rank of full professor. The FGO will inform both parties of the names of the proposed hearing panel and the presiding officer and their rights to challenge the proposed names, either peremptorily and/or for cause. 


SECTION 6:  ROLES OF GRIEVANCE PARTICIPANTS

A. The Role of Counsel

While both parties are entitled to counsel of their choice, the presence of counsel at hearings is not required.  It is the responsibility of the parties to secure their own counsel, and to inform the FGO as soon as possible, but not later than seven days prior to the hearing date, of their identity.  Counsel will be provided with copies of all communications sent to the parties.  Counsels are most commonly faculty members at Michigan State University who volunteer their service in a spirit of collegiality.  The Faculty Grievance Office keeps on file names of individuals who have served as counsel and will share this information with either party upon request.

The role played by counsel in hearings is a matter to be jointly determined by counsel and the grievant/respondent.  The role has ranged from passive observation of the formal proceedings to active participation in presentations of the party’s case and cross-examination of witnesses.

B. The Role of the FGO

The FGO attends hearings to ensure compliance with the procedures set forth in the FGP.  All hearings are taped by the FGO and are available to the parties by request.  At the end of the procedure, the tapes and all other documents relating to the grievance must be deposited in the Faculty Grievance Office.

C. Presiding Officers

Presiding officers, while not voting members of the panel, may ask questions of parties, witnesses, and counsels during the hearing and have authority to assist the hearing panel to make rulings on procedural issues after consulting with the parties and/or the FGO.  Presiding officers also convene and chair the deliberative sessions of panels at the end of formal hearings, and with the assistance for the FGO, coordinate the writing of the panel’s report.

D. Hearing Panel Members

Panel members are expected to review all materials provided to them by the FGO in preparation for the hearing, to bring such materials to the hearing, and to treat them with utmost respect for confidentiality.  All such materials should be returned to the Faculty Grievance Office upon completion of the hearing panel’s report.  Panel members should not communicate directly with either party and/or its counsel about the grievance at any time other than during the course of the formal hearing, nor should they receive direct communication from such individuals about the grievance at any time other than during the formal hearing.  All such communications are to be handled through the Faculty Grievance Office.

Any hearing panel member who is unable to attend a scheduled hearing due to an emergency, or who may feel that his/her participation in the hearing raises issues of conflict of interest, should so inform the FGO as soon as possible after receipt of the notice of the scheduled hearing.  If a hearing panel loses two or more members during the course of a hearing, the hearing shall be terminated, and a new panel selected. 

An individual’s participation as a member of a hearing panel, counsel, or presiding officer is one of the highest forms of civic service that faculty members can provide to their colleagues.  Accordingly, such service is recognized as one of the elements that is to be taken into account in performance evaluations with respect to decisions regarding promotion, granting of tenure, and annual salary adjustments.  The FGO acknowledges the importance of such service to academic governance at Michigan State by providing letters of commendation to panel members, presiding officers, and counsels.  Copies of such letters are also transmitted to panel member’s department chair, dean and the Office of the Provost. 

 

SECTION 7:  INITIAL HEARING PROCEDURES

Hearings are scheduled at a time that is mutually convenient to both parties and are held in the Faculty Grievance Office, W38 Owen Graduate Center.  While neither party is required to be present at a hearing, the presence of both parties and/or their representatives is highly encouraged for the effective presentation of their case.

 Hearing Documents

Consistent with Article III.I of the FGP, the following documents will be provided to the hearing panel, presiding officer, parties, and their respective counsel prior to the hearing: 

    • Statement of grievance (including any amendments);
    • Statement of response by the respondents(s), if any;
    • Documents concerning procedural and jurisdictional issues;
    • Documents submitted as evidence by both parties;
    • A copy of relevant unit, college, or University policies;
    • A copy of the FGP and this User’s Manual; and
    • Any other documents deemed relevant by the FGO.

Additional documents may be received during the course of the hearing pursuant to Article III.I of the FGP. 

Hearing Structure

Grievance hearings will follow the format outlined below:

Please note that times listed below are intended as a recommendation so that hearings can generally be kept to a single four hour session.  This is done out of respect for parties to the grievance process who have volunteered their time to serve the University community.  These are suggested guidelines that will be administered at the discretion of the presiding officer on a case by case basis.

  1. Introductory remarks by the FGO  (5 minutes)
  2. Introductory remarks by the presiding officer  (5 minutes)
    1. At this point, the presiding officer will explain the format of the hearing and remind all participants that the burden of persuasion, in accordance with Article III.I.11 and footnote 12 of the FGP, rests on the grievant.  That is, the grievant has the duty to establish by a preponderance of the evidence that the administrator (respondent) has violated existing policy or established practice. 
  3. Opening statement by grievant  (10 minutes)
  4. Opening statement by respondent  (10 minutes)
  5. Resolution by the presiding officer and hearing panel of procedural or jurisdictional issues raised by the parties, after providing each party the opportunity to be heard in the matter.  However, neither party may advance any issue that has already been adjudicated through the procedures outlined in Article III.D. of the FGP.  (As needed)
  6. Presentation of the grievant’s case  (30 minutes)
    1. Cross-examination of grievant’s witnesses by respondent  (15 minutes)
    2. Re-direct examination by grievant  (5 minutes)
    3. Re-cross examination by respondent  (5 minutes)
    4. Questions from the panel members directed at grievant and/or grievant’s witnesses  (10 minutes)
  7. Presentation of the respondent’s case  (30 minutes)
    1. Cross-examination of respondent’s witnesses by grievant  (15 minutes)
    2. Re-direct examination by respondent (5 minutes)
    3. Re-cross examination by grievant  (5 minutes)
    4. Questions from the panel members directed at respondent and/or respondent’s witnesses  (10 minutes)
  8. Summation and closing argument by the grievant  (10 minutes)
  9. Summation and closing argument by the respondent  (10 minutes)

 

The panel will then excuse the parties and deliberate and reach its findings and recommendations either in a session immediately thereafter or at a later meeting convened by the presiding officer at a mutually agreeable time.  The FGO will then remind the panel of its obligation to produce a written report within 21 days of the completion of the hearing.

 

 

SECTION 8:  OUTCOME OF INITIAL HEARINGS

The initial hearing panel should make a finding on each of the allegations contained in the grievance as to whether it is or is not supported by the preponderance of the evidence.  If the panel finds that there has been a violation of existing policies or established practices, it shall recommend the appropriate redress, taking into account, but not necessarily limited to the redress sought by grievant.  Panel members are reminded that all recommended redresses must be consistent with existing policies, procedures, or practices in the University and/or appropriate unit in question.

The written report of the hearing panel should be a self-contained document that sets out the facts of the grievance, the main arguments of both parties, the findings of the panel, and the recommended redress, so that the administrator who receives the report and who makes a decision can determine what the grievance was about and why the panel reached its conclusions.

The panel’s findings, recommendations, and report do not have to secure the panel’s unanimous support.  If a panel is divided, dissenting opinion(s) should accompany the report of the majority.  Reports of initial hearing panels are submitted, along with relevant documentary materials, by the FGO to the Provost for his/her decision.  The panel’s report is advisory and non-binding to the Provost.  The Provost shall decide the grievance in writing within 28 days of receipt of the hearing panel’s findings and recommendations. 

 

 

SECTION 9:  APPEALS

The FGP recognizes the right of either party to appeal within 28 days of the Provost’s decision.  The appeal must allege at least one of the following:

    1. That there has been a prejudicial violation of procedures established for the conduct of the initial hearing; or
    2. That the decision of the Provost is not consistent with the preponderance of the evidence presented at the initial hearing. 

A randomly selected three-member panel (per FGP Section III.H.3) will consider appeals based upon the following: the written appeal, the record of the original hearing, the Provost’s decision, any written response to the appeal submitted by the parties, and a recommendation provided by the FGO.  An appeal panel must first decide if the appeal has met at least one of the jurisdictional requirements listed in Section IV.A.1 of the FGP (see above bullet points).  If it is determined that a jurisdictional requirement has not been met, the appeal will be dismissed and the decision of the Provost shall stand.  Such reaffirmation, along with the underlying rationale for the appeal panel’s decision, must be stated explicitly in the appeal panel’s report of its finding and recommendations.

There will be no oral arguments presented and the parties may not submit new information or evidence unless the information/evidence is relevant to the appeal and was previously unavailable to the party although the party acted with due diligence to obtain such evidence.  The appeal panel will determine, on a case-by-case basis, whether to accept such new information or evidence.  

If the newly discovered evidence is deemed such that its omission may have constituted prejudicial error if not considered by the original hearing panel or if it is determined that there was a prejudicial violation of the procedures established for the conduct of the initial hearing, the appeal panel may recommend that the case be reheard by a new grievance hearing panel which is a binding decision.

When a panel determines it has jurisdiction to consider an appeal they will deliberate on the merit of the arguments/record and by majority opinion recommend affirmation, reversal, or modification of the Provost’s decision on the grievance.  The FGO will then remind the panel of its obligation to produce a written report within 21 days of the completion of the panel convening for deliberations.  

In preparing the written report, appeal panels are to be guided by the relevant guidelines for initial hearing panels (see Section 8 in this Manual).  Reports of appeal hearing panels are submitted, along with relevant documentary materials, by the FGO, to the President for a final decision.  The President shall decide the appeal within 28 days of the receipt of the appeal panel’s findings and recommendations.  For stated cause the President may return the findings and recommendations to the appropriate panel once for reconsideration.  The FGO will forward a copy of the President’s decision to the parties, their counsel and the members of the appeal panel within three days.  



 

SECTION 10:  MAINTAINING AND RESPECTING CONFIDENTIALITY

All records and information related to grievance proceedings under the FGP shall be kept confidential to the degree permitted by law.  The FGO, parties to the grievance, their counsel, and other relevant administrators and faculty (including witnesses, presiding officers, and panel members) shall respect the confidentiality of information and records, and the privacy of all parties whose interests are affected by a grievance.  The indiscriminate and/or public revelation of grievance outcomes is inconsistent with respect for collegiality and confidentiality.

 

SECTION 11:  RELATIONSHIP WITH OTHER PROCEEDINGS

Article VI of the FGP describes the relationship between the FGP and other University policies such as the Procedures Concerning Allegations of Misconduct in Research and Creative Activities, the Anti-Discrimination Policy, and the Faculty Conflict of Interest Policy.  Article VI also describes what happens when a grievant initiates litigation against the University while a grievance is pending.