IV:07:11 Employee Grievance/Complaint Procedures

I. PURPOSE

The purpose of this procedure is to provide a clear, orderly, and expedient procedure through which employees of the institution may process bona fide complaints or grievances.

II. POLICY STATEMENT

It is the policy of Middle Tennessee State University ("MTSU") to provide an effective procedure for resolution of problems arising from the employment relationship or environment. To this end, a formal grievance/complaint procedure has been established for the use and benefit of employees in addressing certain workplace concerns. It is the responsibility of supervisors to inform and make available to employees information concerning these procedures. Employees should seek resolution of problems through this procedure without fear of coercion, discrimination, or reprisal.

III. IMPLEMENTATION

A. The President of MTSU has the ultimate responsibility for implementing the grievance and complaint procedures set forth herein and will provide the final decision at the institutional level.

B. No employee shall retaliate or discriminate against another employee because of the latter employee's filing of a grievance or complaint. In addition, no employee shall coerce another employee to interfere with the action of another employee in the latter employee's attempt to file a grievance or complaint. Administrative, academic, and supervisory personnel are also responsible for ensuring that the employee is free from retaliation, coercion, and/or discrimination arising from the employee's filing or intent to file a grievance or complaint.

C. Administrative, academic and supervisory personnel are responsible for ensuring that they inform and make available to all employees information concerning their right to file a grievance or complaint and their right to be protected from retaliation.

D. For purposes of this policy, the term "working days" refers to Monday through Friday. Official MTSU holidays shall not be included as "working days" for purposes of this policy.

IV. SCOPE

A. Covered Employees

This grievance and complaint procedure is available to all regular employees. Regular employees shall be defined as administrators, faculty (including full-time faculty on term or temporary contracts), professionals, clerical and support personnel. Probationary employees are also included in this definition. Student workers, graduate assistants, adjunct faculty, and temporary workers are not included in the definition of employees for purposes of this policy.

All employees are encouraged to discuss any problem with their supervisor or unit head prior to utilizing any grievance/complaint procedure. It is the policy of MTSU to make every effort to resolve a grievance/complaint at the lowest possible step in the procedure.

B. Concerns Excluded from the Grievance and Complaint Procedure

Not all categories of employment concerns are included in this policy. The following are examples of situations that are not covered:

1. A termination procedure initiated against a tenured faculty member under MTSU Policy II:01:05A Policies and Procedures for Tenure, Section V. I. (Procedures for Termination for Adequate Cause).

2. Appeals of negative recommendations for tenure and promotion. The procedures for these concerns are set forth in MTSU Policy II:01:05C Tenure and Promotion Appeals Process.

3. Reappointment of tenure track faculty. The procedure for review of these concerns is set forth in MTSU Policy II:01:05C Tenure and Promotion Appeals Process.

4. The issuance of temporary contracts for faculty.

5. Claims of unlawful discrimination or unlawful harassment based on protected class status. The procedures for these concerns are set forth in MTSU Policy  I:01:22 Discrimination and Harassment โ€“ Complaint and Investigation Procedure.

6. Grievances of support staff employees who are demoted, suspended without pay, terminated or contend that their work assignments violate statute or policy but do not claim unlawful discrimination or harassment. Under TENN. CODE ANN. ยง 49-8-117, the grievance procedure for these types of concerns is set forth in MTSU Policy IV:07:23 Support Staff Grievance Procedure.

C. Employment Concerns Subject to Review as a Grievance

An employee may only grieve those matters defined in 1-3 below. All employees wishing to present grievances that are not covered by this policy should follow the procedures set forth in the applicable policy or procedure, if any. Employees may also proceed under the complaint procedure of this policy.

A grievance may result from any action MTSU has taken against the employee that the employee contends:

1. Violates MTSU or TBR policy, or involves an inconsistent application of these same policies.

2. Violates state or federal laws not covered by MTSU Policy I:01:22 Discrimination and Harassment โ€“ Complaint and Investigation Procedure.

3. Violates any constitutional right. The most likely areas of concern are the First, Fourth or Fourteenth Amendment of the federal constitution when that action hampers free speech, freedom of religion, the right to association, provides for improper search and seizure or denies constitutionally required notice or procedures.

D. Employment Concerns Subject to Review as a Complaint

A complaint is any employment concern that an employee wants to discuss with supervisory personnel in an effort to resolve the matter. Personnel actions such as performance evaluations, rates of pay, position re-classifications, or position terminations due to reduction in force do not fall under the definition of complaint. Committee review not available for complaints.

V. PROCEDURE

A. General Matters

1. A grievance or complaint must be presented to the employee's immediate supervisor (Step 1) within fifteen (15) working days after the occurrence of the incident claimed to have given rise to the grievance/complaint. Any claim not presented within the time frame provided shall be deemed to have been waived and will not be considered. (For repetitive or ongoing incidents or circumstances, the grievance or complaint must be filed within fifteen (15) working days of the last occurrence of such incident or circumstance.)

2. The employee is entitled to be accompanied by another employee or an advisor at each step of the grievance or complaint procedure; however, the other employee or advisor may not act as an advocate on behalf of the employee.

3. So long as it does not interfere with the normal workflow of MTSU, employees shall be given reasonable opportunity to pursue grievances or complaints during their assigned work time. The parties to the grievance/complaint proceeding will be given access to all persons, places and official records for information necessary to the determination and processing of the grievance/complaint with specified time limits.

4. The President may grant reasonable extensions of the applicable time limit at each stage of the procedure upon a timely showing of good cause. The request for an extension must be in writing. The approval or denial of the request shall also be in writing.

5. The grievance or complaint, whether oral or written, should be stated in reasonable and temperate terms.

6. Grievance/complaint forms are available upon request in the Office of Human Resource Services ("HRS"). No grievance or complaint may be denied because the standard form has not been used.

7. A grievance or complaint can be withdrawn in writing at any stage of the process.

8. Once a final determination is made on a grievance or complaint, the employee may not later challenge the same employment concern in an attempt to gain a more favorable outcome.

9. Grievances that are processed through the grievance committee are appealable to the Chancellor only where they fall within the parameters set out in MTSU Policy I:02:02 Appeals and Appearances Before the Board. Complaints are not subject to this review.

B. Steps for Filing the Grievance or Complaint

Step 1: Discussion with Immediate Supervisor

A grievance or complaint must be brought to the attention of the employee's immediate supervisor within fifteen (15) working days after the employee becomes aware of the problem. The employee and the supervisor shall discuss the grievance or complaint in an attempt to resolve the matter in a mutually satisfactory manner. The supervisor shall conduct any necessary or appropriate investigation and inform the employee in writing of a decision based upon full and fair consideration of all the facts within ten (10) working days of the initial discussion. The supervisor will assure that the decision is communicated to, and receipt acknowledged by, the employee. If the employee is not satisfied, the employee may proceed to Step 2. (If no decision is communicated to the employee within ten (10) working days of the initial discussion, the employee may proceed directly to Step 2.)

Step 2: Discussion with Higher-Level Supervisor

If the employee and the immediate supervisor are not able to reach a mutually satisfactory resolution to the grievance or complaint, the employee may proceed to discuss the matter with the next-higher-level supervisor within five (5) working days of the date of receipt of the decision of the immediate supervisor. Failure to comply with Step 2 in a timely manner shall be deemed a waiver by the employee and the grievance or complaint shall be deemed resolved at Step 1 and may not be raised again. The procedures and time limits for the supervisor's response shall be the same as in Step 1.

If the employee is satisfied with the decision reached by the next-higher-level supervisor, no additional action is required. If the employee is not satisfied, the employee may proceed to Step 3. (If no decision is communicated to the employee within ten (10) working days of the initial discussion between the employee and the next-higher-level supervisor, the employee may proceed directly to Step 3.)

Step 3: Written Grievance or Complaint Statement

If the employee and the higher-level supervisor are not able to reach a mutually satisfactory resolution to the grievance or complaint, the employee may file a written grievance or complaint with the Director of HRS on the designated form. The grievance or complaint must be filed within five (5) working days of the date of the decision of the higher-level supervisor. Failure to comply with Step 3 in a timely manner shall be deemed a waiver by the employee, and the grievance/complaint shall be deemed resolved at Step 2 and may not be raised again.

HRS shall give a copy of the grievance or complaint, along with any supporting documentation to the immediate supervisor and the next-higher-level supervisor. The Director of HRS may request either or both supervisors to respond in writing to the grievance/complaint statement. The Director of HRS will forward grievances to the President and complaints to the appropriate Vice President.

All employees shall have access to the grievance and complaint procedure as long as the employment concern is covered by this policy and the process was initiated within the time frame set out herein. Within five (5) work days of receipt of a grievance or complaint, HRS, in consultation with the Office of the University Counsel, shall conduct a facial review of the grievance or complaint to ensure that the grievance/complaint was timely submitted and that the employment action stated therein is subject to this procedure. In the event that HRS determines that, on its face, the grievance/complaint is untimely or that this process is not available for the challenged employment action, HRS shall dismiss the grievance/complaint and shall inform the employee and his/her supervisor in writing.

Other than the review of the grievance described above, HRS shall not conduct any further review of the grievance or evaluate the factual merits of the grievance. In the event that there is question as to the timeliness of the grievance or complaint or whether the challenged employment action is subject to this procedure, HRS may require the employee to provide additional details.

If an employee/grievant attempts to bring a grievance under this policy and it is later determined by HRS that this policy does not apply the grievant may continue to pursue his/her grievance under such other policy as may be applicable, if any, provided that the grievance was timely filed pursuant to either the time limitations set forth above or those set forth in the applicable grievance policy.

Step 4A: Complaint Review and Resolution

Upon receipt of a written complaint from HRS, the appropriate Vice President, shall within ten (10) working days of its receipt, review all pertinent information presented by the Director of HRS. The employee shall also be allowed to present additional facts for consideration by the appropriate Vice President. The Vice President shall investigate the dispute and attempt to find a solution to the Complaint. The Vice President will issue a written decision directed to the employee, and copies will be provided to all parties involved and to HRS. The Vice President's decision shall be final and binding as to all parties concerned.

Step 4B: Grievance Committee Process

Upon receipt of a written grievance, the President, or his/her designee, shall immediately appoint a grievance committee to review the grievance and advise the President of their findings. The committee shall consist of five (5) employees at least one of which is a peer of the employee/grievant. If the employee/grievant is a faculty member, at least three of the committee members shall be tenured faculty holding professor or associate professor rank.

No committee member will be selected who has an interest in the outcome of the decision. Should it be discovered that a member has a particular interest in the outcome of the decision, that committee member will be replaced to avoid a biased decision. Every effort will be made to include ethnic minorities and women in the composition of the committee to reflect the diversity of the university community.

The five committee members shall elect one of themselves to serve as chairperson of the committee.

The committee may review the material presented and the decisions rendered in the prior stages of the grievance process. The committee shall conduct an independent and thorough investigation and shall fully and fairly consider all pertinent facts and circumstances. In order to do so, it has the power to receive evidence from the employee/grievant, call witnesses, and request that additional testimony, documents, or other evidence be presented. The committee may allow all witnesses to be present at one time; or, in the alternative, may determine to hear each witness, including the employee/grievant, separately. The parties to the hearing (the employee/grievant and the representative of MTSU) shall be allowed to be present for all proceedings.

The employee/grievant should be allowed to present any pertinent evidence to the committee and to have the committee call those witnesses who have testimony pertinent to the decision. During the committee hearing, MTSU shall be represented by the Department Head, who will be permitted to put on evidence in opposition to the grievance.

The committee will provide the employee and MTSU with advance notice of the time and location of all proceedings before the grievance committee, presentations of proof by the employee and MTSU. MTSU and the employee/grievant shall be permitted to cross-examine all witnesses called by the other. The burden of proof is on the employee/grievant to establish the validity of the grievance by a preponderance of the evidence.

The committee shall, within fifteen (15) working days of the hearing, make a written report of its recommendation and reasons supporting its recommendation, signed by all members of the committee, to the President. In the event that the members of the committee are unable to reach a unanimous decision, the committee may present additional reports and recommendations to the president and each report shall include the signatures of all committee members joining in its recommendation.

The President may then adopt any recommendation of the committee, in whole or in part, or may arrive at a different conclusion. The employee/grievant should be provided a copy of all Committee reports and recommendations along with the President's decision within five (5) working days of the President's receipt of the Committee's recommendation.

VI. MAINTENANCE OF RECORDS

Copies of written grievances and complaints and accompanying responses shall be maintained in the office of HRS. Copies of grievances/complaints and accompanying responses should be maintained for a least three years.

Revised: August 1, 1996; August 20, 2003; July 1, 2011.

Cross-references: MTSU Policy II:01:05A Policies and Procedures for Tenure; MTSU Policy II:01:05C Tenure and Promotion Appeals Process; MTSU Policy I:01:22 Discrimination and Harassment โ€“ Complaint and Investigation Procedure; MTSU Policy IV:07:23 Support Staff Grievance Procedure; MTSU Policy I:02:02 Appeals and Appearances Before the Board.