Initially approved: June 3, 2013
Revised and effective as interim policy: February 1, 2016
Revised and effective upon notice: March 2, 2016
Revised and effective upon notice: May 1, 2017
Revised and effective upon notice: October 15, 2020
Policy Topic: Personnel
Administering Office: Office of Human Resources and Payroll
It is the policy of the University of North Carolina (UNC) and Western Carolina University (WCU or the University) to ensure that a grievance process exists to allow for prompt, fair and orderly resolution of disputes arising out of employment. WCU has therefore adopted the University SHRA Employee Grievance policy to further these goals as approved by the State Human Resources Commission.
This policy applies to all WCU employees who are subject to the State Human Resources Act (SHRA employees). In adopting this policy, the University seeks to achieve the following objectives: (1) provide procedural consistency across the University System; (2) ensure SHRA employees have access to an internal process to address grievable issues timely, fairly, cost effectively, and without fear of reprisal; and (3) resolve workplace issues efficiently and effectively.
The following are definitions of terms used in this policy:
“Applicant”: a person, including a current state employee, who submits an application for an initial hire, promotion or reemployment for a SHRA position within the University.
“Career state employee”: a state employee who is in a permanent position with a permanent appointment and has been continuously employed by the State of North Carolina or a local entity as provided in G.S. 126-5(a)(2) in a position subject to the North Carolina Human Resources Act for the immediate 12 preceding months. Employees who are hired by a state agency, department or university in a sworn law enforcement position and who are required to complete a formal training program prior to assuming law enforcement duties with the hiring agency, department or university shall become career state employees only after being employed by the agency, department or university for 24 continuous months.
“Complainant” (EEO Only): an applicant, probationary state employee, former probationary state employee, career state employee or former career state employee who initiates an informal complaint through the EEO Informal Inquiry process.
“Contested case issue”: a grievable issue that may be appealed to the State Office of Administrative Hearings (“OAH”)
“EEO/AA Officer”: the University official who is responsible for Equal Employment Opportunity/Affirmative Action programs, specifically including the administration of University Policy #53. The University EEO/AA Officer may be reached at (828) 227-7116 and the office is located in 520 HFR Administration Building.
“Equal Employment Opportunity Informal Inquiry” (“EEO Informal Inquiry”): an informal process for addressing unlawful discrimination, harassment, or retaliation allegations that may facilitate a resolution prior to the filing of a grievance. This process is equivalent to the institution’s internal complaint process for allegations of a violation of an institution’s non-discrimination and equal opportunity policy. {Note: Complaints or reports of Title IX Sexual Harassment and appeals of Title IX determinations of responsibility are investigated and resolved through the institution’s title IX complaint process.
“Final University decision”: the final decision authorized by the Chancellor or their designee that concludes the University internal grievance process.
"Grievable issue": a statutorily defined workplace event or action as defined by NC State statute that allows the alleged workplace event or action to be grieved through established grievance procedures for resolution.
“Grievant”: an applicant, probationary State employee, former probationary State employee, career State employee or former career State employee who initiates a grievance.
"Hearing officer": an officer appointed by the Chancellor or designee to oversee the proceedings of a hearing and submit a proposed recommendation for a final University decision.
“Hearing panel”: a University-appointed panel of no fewer than 3 members selected to conduct a hearing. The designated panel chair has the responsibility to oversee the proceedings of the hearing and submit a proposed recommendation for a final University decision.
“Impasse”: an impasse occurs when mediation does not result in an agreement.
“Informal discussion”: means an informal process for addressing grievable issues that may facilitate a resolution prior to the filing of a grievance.
“Internal grievance process”: the process available to an applicant, probationary state employee, former probationary state employee, career state employee or former career state employee to file a formal grievance based on issues that are defined as grievable by NC State statute.
“Internal grievance process timeframe”: the internal grievance process must be completed within 90 calendar days. Time spent in the informal discussion with supervisor and the EEO Informal Inquiry process is not included in the 90-calendar day timeframe.
“Mediation”: the process in which the grievant and respondent use an approved Office of State Human Resources (“OSHR”) mediator to attempt to resolve a grievance in a mutually acceptable manner. Responsibility for resolving the grievance rests with the parties.
“Mediation agreement”: the written agreement resulting from the successful resolution of a grievance reached in mediation. The mediation agreement is legally binding on both parties.
“Mediator”: the neutral third party(s) approved by OSHR whose role is to guide the mediation process, facilitate communication, and assist the parties to generate and evaluate possible outcomes for a successful resolution. A mediator does not act as a judge and does not render decisions.
“Probationary state employee”: a state employee who is exempt from the provisions of the North Carolina Human Resources Act only because the employee has not been continuously employed by the state for the time period required to become a career state employee.
“Respondent”: a designated University representative who will have the authority to negotiate an agreement on behalf of the University to resolve a grievance.
“Title IX Sexual Harassment”: A type of unlawful discrimination which is described under Title IX of the Education Amendments of 1972 at 34 C.F.R. 106.30(a) (2020). Title IX Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following: a) an employee of the institution conditioning the provision of an aid, benefit, or service of the institution on an individual’s participation in unwelcome sexual conduct; b) unwelcome conduct determined by a reasonable person to be so sever, pervasive, and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity; or c) “sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).(34 C.F.R. 106.30(a) (2020)). This is distinct from sexual harassment as defined by Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e
“University”: a constituent institution or employer unit within the University of North Carolina System.
A. University Level Grievances
The following issues may be grieved at the University level only.
1. Career state employee or former career state employee
2. Probationary or former probationary employee
3. Applicant for University employment (initial hire, promotion, or reemployment)
B. University and OAH Level Grievances
The following issues must first be grieved through the internal University process. If the grievant is not satisfied with the final University decision, the grievant may appeal to the Office of Administrative Hearings.
1. Career state employee or former career state employee may grieve the following:
2. Probationary state employee or former probationary state employee may grieve the following:
3. Applicant for University employment (initial hire, promotion, or reemployment) may grieve the following:
Any grievance or complaint that alleges unlawful discrimination, harassment or retaliation shall be addressed and completed through the University EEO Informal Inquiry process before being considered in the formal internal grievance process.
A. Option 1 - EEO Informal Inquiry Process for Unlawful Discrimination, Harassment or Retaliation
An applicant for state employment, probationary state employee, former probationary state employee, career state employee or former career state employee (hereafter referred to as Complainant) alleging unlawful discrimination, harassment or retaliation shall first file a complaint with the University EEO/AA Officer within 15 calendar days of the alleged discriminatory, harassment or retaliatory act that is the basis of the complaint. If the complainant alleges facts that would constitute unlawful discrimination, harassment, or retaliation as prohibited by law or university policy, the complaint will be investigated under the institution’s existing non-discrimination/equal opportunity investigatory process (hereafter referred to as the EEO Informal Inquiry). The EEO/AA Officer will investigate the complaint and determine if the facts related to the allegations support a finding of reasonable cause or no reasonable cause to believe that unlawful discrimination, harassment or retaliation occurred.
The EEO Informal Inquiry should be completed within forty-five (45) calendar days from receipt of complaints.
If there is reasonable cause to believe that discrimination, harassment, or retaliation as prohibited by lay or university policy occurred, management shall take appropriate action to resolve the matter.
The EEO/AA Officer shall inform the Complainant in writing regarding the conclusions of the investigation. If the complaint is not successfully resolved, the Complainant has 15 calendar days from receipt of the conclusions of the investigation to file a formal grievance, which will commence with Step 1 mediation.
At any point in the grievance process, the Complainant/Grievant has the right to bypass discussions with or review by the alleged offender.
Time spent in the EEO Informal Inquiry process is not a part of the formal internal grievance process.
B. Option 2 - External Filing of a Discrimination Charge
The complainant alleging discrimination, harassment or retaliation as prohibited by law or university policy has the right, at any time, to bypass or discontinue the EEO Informal Inquiry process or the formal internal grievance process and file a charge directly with the Equal Employment Opportunity Commission (EEOC) or the Office of Administrative Hearings – Civil Rights Division (OAH-CRD). The complainant may not, however, file a contested case with the Office of Administrative Hearings if the internal process has not been completed. Filing deadlines may vary.
Information about filing an EEOC charge and deadlines for filing the charge can be found at: http://www.eeoc.gov/employees/charge.cfm or by calling the EEOC regional offices located in Raleigh, Greensboro and Charlotte at 1-800-669-4000.
Information about filing through the Civil Rights Division of OAH can be found at: http://www.ncoah.com/civil/ or by calling 919-431-3036.
C. Option 3 – Simultaneous Internal and External Filing of a Discrimination Charge
An applicant for state employment, probationary state employee, former probationary state employee, career state employee or former career state employee may file simultaneously with the EEOC at any point in either the EEO Informal Inquiry process or the formal internal grievance process.
A request for an informal discussion must occur within 15 calendar days of the alleged event or action that is the basis of the grievance. Prior to filing a grievance about any issue which does not involve an allegation of unlawful discrimination, harassment or retaliation, or a disciplinary action, or a non-disciplinary separation due to unavailability, the employee shall first discuss the grievable issue with the immediate supervisor, other appropriate supervisor in the employee's chain of command, or other appropriate personnel or agency that has jurisdiction regarding the alleged event or action that is the basis of the grievance.
The employee must clearly declare to the supervisor or other appropriate personnel that the informal discussion request is regarding an alleged event or action that is the basis of a potential grievance. The supervisor or other appropriate personnel shall confirm the intention of the requested informal discussion with the employee before beginning the process.
The informal process should be completed within a 15-calendar day timeframe. However, if progress is being made toward a successful resolution to the dispute or if unavoidable circumstances (e.g., illness or the academic calendar) require an extension in the timeframe, both parties may agree to an extension. This extension must be agreed to in writing and approved by the Office of Human Resources and Payroll (“Human Resources”).
The supervisor or other appropriate personnel shall notify Human Resources when an employee requests an informal discussion. The supervisor is responsible for attempting to resolve the grievable issue with the employee.
Human Resources will serve as a content and procedural resource advisor during these discussions, and work with both parties to strive for a timely resolution to the workplace dispute. The outcome of the informal discussions must be clearly communicated to the employee by the supervisor or other appropriate personnel in writing.
If the informal discussion is unsuccessful in resolving the grievable issue, the employee may choose to file a formal grievance. If no written response is provided by the supervisor within the 15-calendar day timeframe, the employee may proceed by filing a formal grievance. Time spent in the informal discussion with supervisor is not a part of the formal internal grievance process.
The formal internal grievance process begins when a grievant files a formal grievance request in accordance with this policy. The grievant must begin the formal internal grievance process by filing a written grievance to the Associate Vice Chancellor for Human Resources and Payroll or his/her designee. The grievant must complete the required informal processes before filing a formal grievance.
The University, upon approval by OSHR, has the discretion to bypass Step 1 and proceed directly to Step 2 in situations involving discipline for jeopardizing campus safety, personal misconduct, or other similar egregious workplace issues. A decision to request bypassing mediation must be approved by Human Resources and authorized by the Chancellor. The decision to bypass Step 1 only occurs after careful consultation
1. Purpose of Mediation
Mediation provides the grievant and the University respondent an opportunity to openly discuss the grievance in a neutral environment with the goal of reaching a mutually acceptable resolution.
2. Mediation Process
Human Resources shall submit the request for mediation within 3 business days of receipt of the grievance. The mediation process shall generally be concluded within 35 calendar days from the filing of the grievance unless the grievant and the University mutually agree in writing to extend the time due to extenuating circumstances. Any extension of Step 1 will not extend the 90-calendar day timeline.
3. Location and Time Allocation
Mediation shall be conducted at a location identified by the University and approved by the OSHR Statewide Mediation Coordinator or his/her designee. The mediation shall be scheduled for an amount of time determined by the mediator(s) to be sufficient. Mediation may be recessed by the mediator(s) and reconvened at a later time.
4. Office of State Human Resources - Approved Mediators
Only OSHR-approved mediators will mediate SHRA employee grievances for the University. OSHR will maintain a pool of qualified mediators to facilitate mediations. Mediators will not be selected from the University requesting the mediation.
5. Permitted Mediation Attendees
The following persons are permitted to attend the mediation: (1) grievant; (2) respondent for the University; (3) the OSHR-appointed mediator(s); and (4) the OSHR Statewide Mediation Coordinator and designees may attend as observers.
The emergency substitution of a mediator must be approved by the OSHR Statewide Mediation Coordinator or his/her designee.
Attorneys and other advisors may not attend the mediation. Either the grievant or respondent may ask for a recess at any time in order to consult with an attorney or other advisor.
Audiotape, videotape, recording devices, and transmission devices are not permitted during mediation.
6. Post-Mediation
If an agreement is reached, the following shall occur:
If an agreement is not reached (Impasse), the following shall occur:
7. Confidentiality of Documents Produced in Mediation
All documents generated during the course of mediation and any communications shared in connection with mediation are confidential to the extent provided by law.
8. Limitations on a Mediation Agreement
The mediation agreement shall serve as a written record and shall:
9. Mediation Agreement Approval
The approval of the director of OSHR or designee is required for mediation agreements that need a personnel transaction to be processed, except where the only personnel action is the substitution of resignation for dismissal. If a mediation agreement involves an exception to State Human Resources Commission policy, the approval of the director of the OSHR or designee is required.
10. Grievant Responsibilities at Mediation
A Grievant who has an unexcused failure to attend mediation as scheduled forfeits the right to proceed with the internal grievance process.
11. Respondent Responsibilities at Mediation
12. University Human Resources Responsibilities at Mediation
13. OSHR Responsibilities at Mediation
1. Hearing Process
If mediation does not result in a resolution at Step 1, the grievant has the ability to proceed to Step 2 of the internal grievance process. Human Resources will notify the grievant of the opportunity to present the grievance orally to a hearing panel/hearing officer outside of the employee's chain of command. The Step 2 filing must be received by Human Resources within 5 calendar days of the date of the completion of mediation. The hearing process shall be concluded within 35 calendar days of filing Step 2 of the grievance.
2. Right to Challenge Appointed Hearing Officer or Hearing Panel Members
The grievant has one opportunity to challenge the appointed hearing officer or up to two members of the hearing panel if the grievant believes they cannot render an unbiased recommendation due to a real or perceived conflict of interest. The grievant must submit the basis for the challenge in writing. Human Resources will review the challenge and replace the member(s) as appropriate. If the grievant wishes to make a challenge, it must be done within 5 calendar days of receiving the notification of hearing panel/hearing officer.
3. Hearing Attendees
Attorneys and other advisors may not attend the hearing.
Audiotape, videotape, recording devices, and transmission devices are not permitted during the hearing unless approved by the Chancellor, or designee.
4. Grievant’s Responsibilities
5. Hearing Officer’s/ Hearing Panel Chair’s Responsibilities
6. University Human Resources’ Responsibilities
7. Grievance Presentation
The hearing officer or hearing panel chair will preside over the hearing to allow the parties to present information relevant to the nature of the grievance, facts upon which the grievance is based, and the remedies sought. Each party shall be given a fair opportunity to present evidence on the issues to be heard and to question witnesses.
8.Hearing Report, Proposed Recommendation, and Final University Decision
9. Settlement Approval
The approval of the Director of the Office of State Human Resources or designee is required for settlements that need a personnel transaction to be processed, except where the only personnel action is the substitution of a resignation for a dismissal. If a settlement involves an exception to the State Human Resources Commission policy, the approval of the Director of OSHR or designee is required.
A. University Requirements to Notify Grievant of Appeal Rights
The final University decision shall inform the grievant in writing of any appeal rights through the Office of Administrative Hearings (OAH) for contested case issues. The grievant must be specifically informed of the following:
(1) the appeal is initiated by filing a "petition for a contested case" hearing with OAH;
(2) the appeal must be filed within 30 calendar days after the grievant receives the final University decision; and
(3) a fee is charged for filing a Petition for a Contested Case Hearing.
B. Grievant Access to the Office of Administrative Hearings
1) If the grievant is not satisfied with the final University decision, the grievant may file a petition for contested case hearing with OAH in cases where the grievable issue may be appealed. An administrative law judge will conduct a hearing and render a final decision.
2) A petition for contested case hearing must be filed within 30 calendar days after the grievant receives the final University decision. The appeal must be filed at:
Office of Administrative Hearings
1711 New Hope Church Road (Physical Address)\
Raleigh, NC 27609
6714 Mail Service Center (Mailing Address)
Raleigh, NC 27699-6700
(919) 431-3000
3) Hearing procedure requirements and filing forms (OAH Form H-06A) can be obtained from the OAH at: http://www.ncoah.com/hearings/ or by calling (919) 431-3000.
A. University Human Resources’ and AA/EEO Office’s Responsibilities
B. Office of State Human Resources Responsibilities
This policy shall be regularly reviewed and revised as may be necessary in connection and in accordance with changes to State Human Resources Commission policies or rules, University policies or rules, UNC policies or rules or applicable state and federal law.
University Policy #78, Disciplinary Policy and Procedures for SPA Employees
Office of State Human Resources
Office of State Human Resources Policies
North Carolina Office of Administrative Hearings
University of North Carolina Policy Manual