1997 Grievance Policy

Posted in "final" form Apr. 22, 1997; Modified further Mar. 3, 1998

The version of the Grievance Policy shown below was approved by the Academic Senate on March 19, 1997 for implementation on July 1, 1997. The Academic Senate also approved a resolution calling for annual review of the operation of the grievance system. (The new Grievance Policy replaces the section called 2.5a in the 1987 Faculty Handbook with sections called 2.5a and 2.5b. The old 2.5b was not modified and presumably would now become 2.5c.)

Additional change (February 1998): The President of the University requested deletion of the underlined text and his proposal was accepted by the Senate at the February 18, 1998 meeting.

NEW GRIEVANCE POLICY FOR THE USC FACULTY HANDBOOK

2.5 Faculty Grievances

a. What may be the subject of a faculty grievance? A grievance may be filed for a violation of rights provided by law, stated in the Faculty Handbook, or contained in the faculty member's contract.

Grievances relating to reappointment, promotion or tenure are limited to (1) a claim that the person was not fairly evaluated because of procedural defects (including inadequate procedural considerations) which materially inhibited the review process, or (2) a claim that the person was not fairly evaluated on the merits because the decision was based significantly on considerations violative of academic freedom or because of bias or prejudice based on considerations prohibited by law, or (3) a claim that tenure was revoked without sufficient cause, except if there has been a hearing where cause for termination was determined.

Grievances concerning sexual harassment are handled under the separate procedures provided within the sexual harassment policy.

1. Preliminary proceedings

When reason arises for a faculty member to question whether his/her rights as a faculty member have been violated or are about to be violated, the aggrieved faculty member should ordinarily discuss the matter with the relevant chairperson, dean, or other administrator(s) in personal conferences looking to mutual settlement. Normally, this should include at least the direct administrative officer against whom the formal grievance may be filed, and if settlement is not reached, the administrator to whom the first is accountable. If settlement does not result, and the faculty member is satisfied that there is probable cause for grievance, he/she may file a grievance, as described in the next paragraph. The faculty member is encouraged, at any early stage, to seek the counsel of the chairperson of the Academic Senate Committee on Faculty Rights and Responsibilities. Because the grievance process has substantial costs to all involved, faculty members are strongly encouraged to attempt mediation prior to filing a grievance. The Academic Senate and the Provost make available the option of a neutral Faculty Mediation Officer to assist in settling disputes prior to the filing of grievances.

2. Initiating the grievance

Formal proceedings for a faculty grievance shall commence by the filing of a grievance. A faculty member must file a grievance by submitting it in writing to the Academic Senate President within nine calendar months of the discovery of the action on which the grievance is based. The Academic Senate Office shall maintain grievance records in a confidential manner.

The grievance must clearly state the right that allegedly has been infringed, the way in which the right has been infringed, the relief being sought, and the first administrative officer able to resolve the problem. The written statement may be revised by the grievant at any time prior to the hearing. The Academic Senate President shall assure that any revision is distributed to all appropriate parties.

Two or more persons with essentially the same grievance may file a single grievance, covering all of them. If an individual files a grievance, and it is later discovered that one or more others are similarly affected, the others may ask to join the original grievant at any stage of the grievance procedure. The Academic Senate President or the Chair of the Faculty Tenure and Privileges Appeals Committee may also combine the grievances of two or more persons into a single grievance with the consent of the grievants, if the either finds that the grievances can be combined without prejudice to the rights of any of the grievants or the University.

3. Resolving the grievance prior to arbitration or a grievance hearing

The Academic Senate President shall, within five working days, deliver a copy of the grievance to the first administrative officer stated in the formal grievance as able to solve the problem, the Provost, and the Chair of the Academic Senate Committee on Faculty Rights and Responsibilities.

The Chair of the Academic Senate Committee on Faculty Rights and Responsibilities shall then begin procedures for mediation, unless mediation has already been attempted and proven futile. Mediation looking toward settlement shall begin with the first administrative officer and shall proceed successively, as needed and appropriate, to higher levels within the University. The Chair of the Committee on Faculty Rights and Responsibilities may appoint a mediator.

If the grievance is resolved to the satisfaction of the grievant by an administrator, the grievant shall report this fact, in writing, to the Academic Senate President, and the case is closed. If the grievant at any time requests, in writing, to the Academic Senate President that a grievance hearing be held, or if mediation has not led to settlement within 45 days of the filing of a grievance, the Academic Senate President shall forward the grievance to the Provost, indicating that mediation has not been successful and requesting that an arbitration proceeding or a grievance proceeding be held. The Provost will forward the grievance to the Chair of the Faculty Tenure and Privileges Appeals Committee requesting that formal proceedings be commenced as discussed below. Upon written agreement of both the Provost's Office and the grievant, an extension of the 45 day mediation period may be granted. At any time during extended mediation, the grievant shall have the right to request, in writing, the commencement of formal proceedings. In no case shall the total time for mediation exceed 90 days.

In the event that new, pertinent, and substantive information is discovered after mediation has been declared unsuccessful, the matter may be returned to mediation upon written agreement of both the Provost's Office and the grievant, provided that neither arbitration nor a grievance hearing has not begun. At any time during renewed mediation, the grievant shall have the right to request, in writing, the formation of a Hearing Board, but in no case shall the renewed mediation exceed 45 days.

b. The grievant and the President of the University shall be given 10 business days in which to notify the Chair of the Faculty Tenure and Privileges Appeals Committee that they have elected arbitration. If both have not given notice that they have elected arbitration at the end of this period, the Chair of the Faculty Tenure and Privileges Appeals Committee shall convene a grievance hearing, as discussed below.

c. If both sides agree to submit the matter to binding arbitration, the Chair of the Faculty Tenure and Privileges Appeals Committee shall arrange for the appointment of an arbiter designated by the American Arbitration Association. The American Arbitration Association shall designate an arbiter in accord with its proceedings and inform the Chair of the Faculty Tenure and Privileges Appeals Committee of the arbiter's identity. The Chair shall then inform both the grievant and the respondent of the arbiter's identity. Either side shall have three working days to reject that arbiter. However, neither side may reject more than one arbiter in any case. If the arbiter is rejected by either party, the American Arbitration Association will be asked to designate another individual. The same procedure will be followed, except that the party having rejected the earlier arbiter may not reject a second individual.

d. Once chosen, the arbiter, together with the parties and the Chair of the Faculty Tenure and Privileges Appeals Committee, shall convene the arbitration at an appropriate time and location. The arbitration shall be conducted in accord with the rules of the American Arbitration Association.

e. Within 20 days after the completion of the arbitration, the arbiter shall notify, in writing, the parties and the Chair of the Faculty Tenure and Privileges Appeals Committee of his/her ruling.

f. The University of Southern California shall be responsible for all of the costs of the arbiter and in no event may the grievant be held responsible for these charges. The University is not responsible for costs and expenses incurred by the grievant in the process of arbitration, such as expert witness fees and attorneys' costs.

If arbitration is not elected by both parties, the Chair of the Faculty Tenure and Privileges Appeals Committee shall convene a grievance hearing.

a. The Committee on Faculty Tenure and Privileges Appeals

The Committee on Faculty Tenure and Privileges Appeals is a standing University body. Its membership is made up of at least 40 full-time tenured faculty, nominated by the Academic Senate and approved by the President. At least four committee members shall have law degrees and at least six other members shall have had prior service on a Hearing Board. Nominations and appointments shall be at annual intervals for a three-year term. However, the Committee shall continue in existence until its successors have been appointed. The President shall appoint the chair of the Committee who shall serve for a three-year term. By agreeing to serve on the Committee on Faculty Tenure and Privileges Appeals, faculty members are making a commitment to be available to serve on grievance panels and will accept such requests to serve whenever possible.

b. Convening a hearing

After the time elapses for the election of binding arbitration, the Chair of the Faculty Tenure and Privileges Appeals Committee shall, within five business days, generate a list of six names for members of the panel and a list of three names for chair who will be available to serve on the grievance panel. A chair shall either be a person holding a law degree or a person with prior service on a grievance panel. The grievant and the respondent may each strike two names from the list of panel members and one name from the list of possible chairs. If after the exercise of these peremptory challenges more names remain than needed for a grievance panel of two members and one chair, the members and chair shall be chosen randomly. The Chair shall inform the parties of the panel as soon as its selection is completed.

c. Motion to dismiss

Within 10 days of notification of the identity of the grievance panel, the respondent may make a motion to dismiss a grievance for failure to state a right upon which relief can be granted or for lack of jurisdiction because the grievant was not a faculty member at the time the grievance arose and is not currently a faculty member and thus is not eligible for this process. The respondent may argue that the grievant failed to allege a violation of a right as a faculty member protected by law, the Faculty Handbook, or the faculty member's contract. The grievant shall have 10 days to respond to a motion to dismiss the grievance.

If there is such a motion to dismiss, the grievance panel shall consider it before hearing the merits of the grievance. The grievance panel, at its discretion, may do this on the basis of written submissions from each side or upon hearing arguments. In deciding whether to grant a motion to dismiss, the grievance panel shall accept all of the grievant's allegations as true and shall dismiss only if there is no jurisdiction because the grievant is not a faculty member or if there is no allegation of a violation of right protected by law, the Faculty Handbook, or the faculty member's contract. The grievance panel shall not examine or evaluate the evidence as to the merits of the grievance in ruling upon a motion to dismiss.

The Chair of the Faculty Tenure and Privileges Appeals Committee has no authority to dismiss grievances under any circumstances.

d. Grievance hearing

If the grievance is not dismissed, a grievance hearing shall be conducted. The chair of the grievance panel, together with the Chair of the Faculty Tenure and Privileges Appeals Committee, shall schedule the hearing at a time and location convenient for all involved.

Either party may be represented by legal counsel at the grievance hearing (i.e., by a person who holds a law degree.) If either side intends to be represented by legal counsel, it shall notify the other party of this intention at least 10 days prior to the hearing. Failure to notify will entitle the other party to a reasonable continuance to secure its own legal counsel.

The grievant and the respondent, and their legal counsel if any, shall have the opportunity to be present during all argument and presentation of evidence.

Each party shall have the opportunity to present its evidence, including witnesses, and to make an argument to the grievance panel. Each party shall have the right to confront and question the witnesses of the other. Each party shall have the right to inspect and respond to all written and documentary evidence offered. Technical rules of evidence are not applicable.

The chair of the grievance panel shall be responsible for presiding over the hearing and shall rule on all evidentiary questions. The chair shall set the order of argument and of presentation of evidence and may exclude irrelevant or unduly repetitious evidence or argument.

Grievance panels will be instructed that their decisions must be in accord with all relevant federal, state, and local law, the Faculty Handbook, and University policies and regulations. The grievance panel will be instructed to decide only the grievance before them; that is, the grievance panel should hear only evidence that is relevant to the grievance and shall decide only the issues presented.

The grievant shall be given an opportunity to obtain necessary witnesses and documentary or other evidence. The University shall use its persuasive power and the Hearing Board its good offices to help the grievant obtain pertinent evidence or witnesses, but the University has no obligation to incur undue expenses for thus purpose.

No member of the grievance panel shall disclose any of the evidence received during the grievance hearing nor any aspect of the deliberations, except as provided below.

A full stenographic or tape record of the hearing shall be maintained and made available upon request only to the parties, the grievance panel, or the President of the University. The stenographic or tape record shall be given to the Academic Senate office, where it shall be kept for at least a year, after which it can be destroyed or erased unless either party or the University requests that it be kept for a longer period of time. Copies of the stenographic or tape record shall be made for either party at its request, and if the grievant is the requesting party, upon the payment of the expenses of copying. In addition, with a person appointed by the Academic Senate office present, either party may, at any time before a stenographic or tape record is destroyed, read or listen to the original, at a time and place set by the Academic Senate office.

A grievance process will be terminated if a faculty member files a lawsuit in court over the same matter that is the subject of the grievance.

e. Burden of Persuasion

Except in cases involving the revocation of tenure for cause, the grievant has the burden of persuasion and it shall be satisfied if a preponderance of the evidence, considering the record as a whole, establishes that the University violated rights provided by law, stated in the Faculty Handbook, or contained in the faculty member's contract.

f. Decision of the grievance panel

The findings of fact and decision of the grievance panel shall be based solely on the hearing record.

At the conclusion of the hearing, as is promptly as is consistent with due deliberation, the grievance panel shall make its decision. The recommendations shall be in writing, shall state the basis for the decision, and shall recommend any proposed remedial action. The panel shall provide its written decision within ten business days after the completion of the grievance hearing. The written decision shall be provided to each party and to the Chair of the Faculty Tenure and Privileges Appeals Committee. Each party shall have two weeks from receipt of the decision to append an additional statement on to the decision.

In considering grievances related to reappointment, promotion, or tenure, the grievance panel shall not substitute its judgment on the substantive merits of the decision, including the requirements of the academic unit or of a candidate's professional qualifications, for that of the appropriate faculty body or bodies. If the grievance panel concludes that the grievant's claim is proven, it will recommend reconsideration by the appropriate faculty body or bodies, indicating respects in which it believes the review process was inadequate. If a grievance panel concludes that there was an unfair evaluation because of considerations violative of academic freedom or prejudice, it will recommend reconsideration by a new faculty body, indicating the respects in which it considers unfair judgments to have taken place.

g. Forwarding recommendation to the University President

All grievance panel decisions are recommendations to the President of the University. After allowing the parties one week to append additional statements, as described above, the Chair of the Faculty Tenure and Privileges Appeals Committee shall forward the panel's decision and the appended statements, if any, to the Provost, the President of the University, and both parties. The President may request and receive any evidence presented and the stenographic or tape record of the proceedings.

h. Decision of the President of the University

The President's decision shall be made as promptly as possible, generally within 30 days of the President receiving the grievance panel's recommendation. The President shall retain ultimate decision-making authority as to all grievances and the discretion to accept or reject grievance panel recommendations, except those where there is mutually agreed upon binding arbitration, as discussed above. The President shall assume that recommendations from grievance panels reflect the best judgment of an impartial faculty body and therefore shall generally defer to panel recommendations, subject to the President's authority under this section to accept or reject grievance panel recommendations.

If the President intends to not follow the panel's recommendation, the President shall notify the panel of this in person or in writing and shall state the reasons for intending to not follow this recommendation. The President shall provide an opportunity for response by the grievance panel before reaching the final decision. If the President finally decides not to accept the recommendations of the grievance panel, he/she shall state in writing, as part of his/her final decision, his/her reasons for rejecting them and for rendering a different decision.

The final report of the grievance panel and the President's final decision on the grievance shall be made known to the grievant, the respondent, the Provost, the Academic Senate President, the Chair of the Faculty Tenure and Privileges Appeals Committee, and the members of the grievance panel. The Academic Senate President, upon receipt of written consent from the grievant, will forward to the Chair of the Senate Committee on Faculty Rights and Responsibilities a copy of the decision and a copy of the report of the grievance panel. This Senate Committee shall have the right to refer these reports to the Academic Senate, provided that the names of persons mentioned therein are deleted. In appropriate circumstances, where the privacy of students, other faculty members, or administrators would be compromised by disclosure, the President of the University or the chair of the grievance panel may ask that all parties keep the report confidential.