Discrimination Grievance Procedure

GRIEVANCE PROCEDURE FOR DISCRIMINATION COMPLAINTS

Informal Procedure

  1. Initiating the Complaint. Any faculty member, student, staff member, or applicant for employment or admission to the University who claims to have been unlawfully discriminated against due to any University regulation or policy or the official action of any University employee may, within sixty (60) calendar days of the alleged discriminatory occurrence, initiate informal complaint proceedings by submitting a written summary of complaint to the Policy Number 55.0 Page 5 University's Equal Opportunity Officer, University Hall, Room 123. Telephone: 243-5710 (Voice/Text: 243-2311). This complaint procedure is also available in braille, tape cassette, a large print format, and electronic text.
  2. Action on Complaint. The University Equal Opportunity Officer will conduct a prompt and thorough investigation, ordinarily within ten (10) days of receipt of the complaint, as follows:
  • Investigate and determine the nature and extent of the problem, including whether or not the problem, if any, warrants investigation under this procedure:
    • Immediately upon initiating an investigation, the Equal Opportunity Officer will inform the individual accused of discrimination (hereafter "Respondent") of the identity of the complainant, and of the specific charges. Adverse action cannot be taken based on an anonymous complaint.
    • The Equal Opportunity Officer will provide the Respondent with an opportunity to answer the allegations.
    • The Equal Opportunity Officer will investigate allegations made of specific discriminatory actions by the Respondent(s), but limit the investigation to acts within the jurisdiction of this policy.
    • The Equal Opportunity Officer will conduct an impartial investigation of the facts alleged in the complaint, and afford the Respondent fair opportunity to respond to them.
  • Convene meetings of appropriate personnel, including the Complainant and the Respondent, if necessary, in order to seek informal resolution of the complaint;
  • Notify the Complainant and the Respondent in writing of the current status of the complaint, including whether a specified amount of additional time is needed to investigate or resolve complaint, and of any further remedial action contemplated.
  • The Equal Opportunity Officer may encourage and facilitate informal resolution through discussion, mediation and agreement when appropriate and desired by the Complainant and/or Respondent, without making a finding of whether or not prohibited discrimination has occurred. When informal resolution is not feasible or appropriate, the Equal Opportunity Officer will determine whether or not prohibited discrimination has occurred based on the evidence obtained through investigation. The determination will be made in accordance with applicable law, based on a preponderance of substantial, credible evidence, and will be stated in writing. If the Equal Opportunity Officer finds that prohibited discrimination has not occurred, the Complainant may appeal this determination through the Formal Procedure below. If the Equal Opportunity Officer finds prohibited discrimination has occurred, the Respondent may appeal any discipline recommended for Respondent through the appropriate disciplinary procedure under applicable collective bargaining agreement or University Personnel Policy at the time he or she is notified disciplinary action will be taken.
  • Both Complainant(s) and Respondent(s) may have privacy rights and reasonable expectations of confidentiality in the investigation of matters subject to this procedure. In addition, appropriate, reasonable expectations of confidentiality are an element of due process provided. The Equal Opportunity Officer keeps confidential the complaint, witness statements, and any other information provided by the Complainant or Respondent and discloses such information only to the Complainant or Respondent or witnesses, as necessary to give fair notice of the charges and to conduct the investigation. The report and conclusion after investigation are disclosed only to the Complainant, individual Respondent, and University officials as necessary to prepare for subsequent proceedings (e.g., University President and University Legal Counsel). The Equal Opportunity Officer will advise Complainant, Respondent and witnesses that the information discussed is confidential, and should not be released or discussed except with the Complainant or Respondent for the purposes of the investigation or preparation for subsequent proceedings. An individual Complainant or Respondent may choose to waive his/her individual right to confidentiality in information personal to him/her by disclosing it to others outside the process. However, an individual waiving his/her own right of privacy is not thereby free to breach the confidentiality rights of others in the process. Neither the other party to the complaint, nor the University shall be considered responsible for breach of confidentiality by reason of such a waiver by the individual Complainant or Respondent. A subsequent appeal hearing may be open or closed, according to the provisions of B.4. below.

Formal Procedure

  1. Appeal from the Informal Procedure to the Formal Procedure:
    • Written Appeal. If the Complainant chooses to appeal the decision of the Equal Opportunity Officer, a written request for a hearing before the University Discrimination Grievance Committee must be filed within ten (10) days of receipt of the decision. The request for a hearing must be filed with the Equal Opportunity Officer.
    • Notice of Hearing. Within ten (10) days of receipt of the written request for a hearing, the Equal Opportunity Officer will notify the Complainant and the Respondent of the time and place of the formal hearing before the Discrimination Grievance Committee. The hearing will be scheduled with thirty (30) days of receipt of the written appeal. Policy Number 55.0 Page 7
  2. Preparation for the Hearing
    • Complainant's Statement. At least ten (10) days prior to the hearing the Complainant must submit to the Equal Opportunity Officer and Respondent the following information: detailed statement of facts upon which the allegations of discrimination are based; names and addresses and anticipated testimony from witnesses to be called; copies of any documents which will be submitted as evidence; additional materials the Complainant wishes the committee to obtain prior to the hearing; reference to the law or regulation alleged to be violated; specific remedy(ies) requested; preferences for an open or closed hearing; whether he/she will be represented by legal counsel and the identity of the counsel.
    • Respondent's Statement. At least ten (10) days prior to the hearing the Respondent(s) will submit to the Equal Opportunity Officer and Complainant the following: a statement of facts relevant to the Complainant's allegations; names and addresses of witnesses and summary of testimony; copies of documents or other materials to be submitted as evidence.
    • Legal Counsel Representation. If the Complainant chooses to be represented by counsel, the Respondent will be represented by University Legal Counsel.
    • Forwarding Appeal Documents. The Equal Opportunity Officer will forward copies of the above materials to the members of the Discrimination Grievance Committee at least five (5) days prior to the hearing. At that time the Equal Opportunity Officer may submit any additional evidence relevant to the complaint.
  3. Pre-hearing Conference:
    • At any time within five (5) days prior to the date of the formal hearing the chairperson of the University Discrimination Grievance Committee may call a pre-hearing conference of all committee members and any other persons (including the Complainant).
    • The committee will discuss and decide the following: whether the President of the University should be requested to appoint legal counsel to the hearing committee; whether the evidence presented is complete, an additional investigation should be required, or additional witness called; whether the University Discrimination Grievance Committee should conduct a meeting of the Complainant and other appropriate parties in an effort to settle the complaint without a formal hearing.
    • With concurrence of a majority of the University Discrimination Grievance Committee, the Chair may decide to: set aside the hearing date for any period up to ten (10) days for additional investigation, to obtain additional witnesses or evidence, or to schedule a settlement conference with the Complainant and any other appropriate parties for purposes of settlement of the appeal without a formal hearing.
  4. The Hearing. The hearing will be conducted by the Chair of the University Discrimination Grievance Committee. The hearing will be a non-adversarial proceeding, and strict rules of evidence will not be applied. The hearing will nevertheless be conducted to assure fairness and accuracy in fact-finding. The Chair will be the final arbiter of all matters of procedure. In the absence of strong reasons to the contrary, preference will be given to the Complainant's request for an open or closed hearing.
  5. The Decision. Within ten (10) working days of the conclusion of the formal hearing the University Discrimination Grievance Committee will submit a decision in writing to the President, the Complainant, the Respondent, and the University Equal Opportunity Officer. A finding of discrimination and recommendation for redress must be supported by a majority of the committee members voting. The determination will be made in accordance with applicable law, based on a preponderance of substantial, credible evidence. The written decision will contain the following: a. a summary of the allegations of the Complainant; b. a summary of the Respondent's position; c. a statement of the relief sought by the Complainant; d. specific citations of any laws or regulations alleged to be violated; e. a statement of the findings of fact and conclusions of the committee regarding whether the evidence substantiated the allegations of the Complainant; f. recommendations regarding redress of the Complainant's grievance as well as policy or procedural changes required in order to preclude further discrimination.
  6. Action on Decision. Within ten (10) days of receipt of the committee's decision, the President will notify the committee Chair, the Equal Opportunity Officer, and the Complainant in writing of the decision relative to each of the recommendations forwarded by the University Discrimination Grievance Committee. The decision will include (1) the actions which have been or will be taken regarding each recommendation; and (2) the time frame in which these actions will be accomplished. The Equal Opportunity Officer will distribute copies to committee members and the Respondent.
  7. Appeal to Regents. Within thirty (30) days of receipt of the President's response to the recommendations of the University Discrimination Grievance Committee, a Complainant may appeal the President's decision to the Commissioner of Higher Education of the Montana University System. (See Policy Number 55.0 Page 9 Addendum A, the Board policy on appeals).
  8. Signed Acceptance of Resolution. Prior to implementation of any remedial action approved by the President, the Complainant will sign a release indicating acceptance of the proposed remedial action as complete satisfaction for any and all claims or causes of action relative to the complaint.

ADDENDUM A

SECTION: 203.5.2 Appeals (page 1 of 3)

EFFECTIVE: 10/25/90

ISSUED: 12/26/90

PROCEDURE

  1. Appeals must be in writing, addressed to the Commissioner, and shall state the decision being appealed, the basis for the appeal, and the relief desired. Upon receipt of the appeal, the Commissioner shall notify the party of the scope of review and the procedure to be followed.
  2. A party must use the procedures established at the campus level before appealing to the Commissioner. In the absence of applicable procedures, the party may appeal a determination by a university official to the immediate supervisor. The final administrative decision at the campus level is that of the director or president.
  3. The Commissioner may attempt to achieve an informal disposition of the appeal. An informal disposition is binding only if the appealing party and the campus president agree to the proposed resolution.
  4. Subject to the provisions of paragraph 5, the appeal will be decided based upon materials submitted by the appealing party and by the director or president. The parties to the appeal have no right to introduce materials or raise issues that have not been part of the campus record. A full or partial hearing may be conducted, if
  • a) the right to a hearing is established by a Board of Regents' policy on the particular subject; o
  • b) failure to conduct a hearing would violate the party's constitutional due process rights.
  1. The Commissioner may request that the parties submit additional materials or he may on his own initiative take notice of other relevant matters. The Commissioner may remand the matter back to the campus or he may affirm, reverse, or modify the campus decision or he may present the appeal to the Board for its consideration.
  2. Within 30 days of the Commissioner's decision a party may appeal the decision to the Board. Such appeals must be in writing, be addressed to the Board in care of the Commissioner, shall state the decision being appealed, the basis for the appeal, and the relief desired. The Commissioner shall place the matter on the Board's agenda, though the Board may choose not to entertain the appeal. If the Board accepts the appeal, it will specify the scope of review and may request a full or partial hearing. The decision of the Board affirming, reversing, modifying or refusing to hear the appeal is the final administrative determination.
  3. No matters subject to this policy shall be considered final until the procedures of this policy have been used to present the matter to the Board of Regents. When a party fails to exercise the appeal rights guaranteed by this policy the party accepts Policy Number 55.0 Page 12 the lower level decision as final and waives the right to contest the matter further.

HISTORY

By-laws, Article VIII (rescinded February 15, 1977); Item 15-001-R0277, February 15, 1977 (rescinded). Item 21-003-R0778, Appeals; Montana University System, November 2, 1979, June 21, 1985, and October 25, 1990.