32.01.02 Complaint and Appeal Process for Nonfaculty Employees
June 25, 1998
Revised January 14, 2002
Revised November 19, 2002
Supplements System Policy 32.01
1. ADMINISTRATIVE PROCESS
1.1 System employees have the right to present complaints concerning their wages, hours of work, or conditions of work. This regulation applies to complaints by nonfaculty employees of the System and its components, including agency employees with faculty titles who are not in tenure-track positions. Complaint and appeal procedures for faculty members are governed by System Policy 12.01 and System Regulation 32.01.01. Employees who have been subject to a reduction in force are governed by System Regulation 33.99.15. This regulation does not apply to temporary and wage employees.
1.2 Any retaliatory action, including a reprimand, taken against an employee for exercising this right is prohibited and may be considered a separate and distinct cause for complaint.
1.3 Most problems or complaints can be resolved through discussions between the employee and the immediate supervisor. If this does not produce a satisfactory result, the employee may present a complaint under the provisions of this regulation.
1.4 The human resources officer or other officer performing that function for the System component will be responsible for administration and interpretation of this System regulation. The human resources officer is authorized to appoint representatives to perform any or all of the duties described in this regulation. All references in this regulation to "human resources officer" include any such representative. If circumstances warrant, the Chief Executive Officer (CEO) may arrange for another appropriate designee to perform the duties of the human resources officer.
1.5 This regulation includes procedural steps that may need to be modified to provide a fair and workable process for employees stationed away from the System component's headquarters. The CEO is authorized to modify this process when required by the organizational structure or geographical dispersion of employees. Any modified procedures must conform in principle with the procedures established in this regulation.
1.6 Each System component will publish a rule establishing specific responsibilities and timing for each of the steps outlined in this regulation, including specific mediation procedures. Component rules must be reviewed by the System Office of General Counsel (OGC) and System Human Resources Office (SHRO).
1.7 If at any stage of this process the employee files a formal complaint with an external compliance agency alleging that he or she has been illegally discriminated against, the human resources officer will immediately advise the System Office of Equal Opportunity of the complaint. Complaints of illegal discrimination are to be handled in accordance with applicable laws.
1.8 If the employee intends to have a representative present at any of the meetings described in this procedure, he or she must notify the person with whom the meeting is to be held (or the human resources officer) of the name of such person and whether or not that person is an attorney. If a representative of the employee is to attend any meeting, the administration may request that a representative from the Office of General Counsel be present. If the employee appears with a representative without having given the notice described above, the employer may postpone the meeting.
1.9 System employees may present complaints individually and/or through a representative. Any representative of an employee under this process may not be acting as an official representative of an organization that claims the right to strike. If a representative is a coworker of the employee, the representative may not receive reimbursement for salary, travel, or per diem for activities related to such representation. The representative employee may take vacation leave, compensatory leave, or leave without pay to represent the aggrieved employee, in compliance with the policies, regulations, and rules for such leaves.
1.10 In the informal process, if a supervisor is a department head, or higher, any reference to "department head" will refer to the next higher-level administrator. In the formal process, if the complainant or respondent is the individual who would decide the complaint under section 3.3, the CEO will appoint an appropriate senior level administrator to decide the complaint. If the complainant or respondent is the CEO, the complaint will be directed to the Chancellor.
1.11 The following acts on the part of the employee may constitute abandonment of a complaint:
(1) failing to respond or take an action required by the process within the time limit specified by the component's rule;
(2) failing to appear for a meeting scheduled under Sections 2 or 3 without adequate cause; or
(3) otherwise failing to advance the complaint in a timely manner, as determined by the human resources officer. The human resources officer may unilaterally declare a complaint to be abandoned and close the file, or may undertake a review of the status of the complaint upon request of the department head or other representative of the System component. No further action or appeal will be allowed following such determination of abandonment and closure of the file.
1.12 An employee may submit to the human resources officer a written request for a delay or extension of time because of inability to appear for a scheduled meeting, or inability to comply with an established deadline for action under the component rule. Such request must state the circumstances that caused the employee to be unable to meet the time requirement. The human resources officer may approve such a request only when the delay is reasonably justified. An employee may make more than one request for a delay during the course of a complaint proceeding, but each request will be considered separately by the human resources officer for purposes of determining whether the delay is reasonably justified.
1.13 The employee and the department head may mutually agree to a rescheduling or delay of any action or meeting required by this regulation or a component rule, and shall notify the human resources officer in writing of such agreement.
2. INFORMAL COMPLAINTS
2.1 An employee is encouraged to first discuss a complaint with his or her immediate supervisor or, if the employee does not feel comfortable discussing the complaint with his or her supervisor, the employee may request a meeting with the human resources officer. The human resources officer may take a statement from the employee and provide the statement to the supervisor. In addition, the human resources officer may provide information and assistance to the employee concerning policies, regulations, rules and procedures, including an explanation of available options, and may assist the employee with any other step in the complaint and appeal process.
2.2 If the complaint is not resolved through informal discussions with the supervisor, the employee may request a meeting with his or her department or unit head. The purpose of the meeting will be to seek a mutually satisfactory resolution through discussion. The employee may request the meeting personally or may request that the human resources officer make the arrangements.
2.2.1 The human resources officer may attend the meeting to serve as a facilitator and/or to provide assistance in interpreting polices, regulations, rules and procedures. The human resources officer may not serve as advisor to either party at the meeting.
2.2.2 The supervisor may attend the meeting if agreeable to the employee and department head.
2.2.3 The department or unit head may advise the employee of the decision at the time of the meeting and soon after must provide a written decision to the employee and send copies to the human resources officer and supervisor.
3. FORMAL COMPLAINTS
3.1 Although employees are encouraged to follow the informal complaint process first, employees may file a formal complaint by the deadline set by the component without first going through the informal process. The formal process begins when the employee completes a complaint form and delivers the form to the human resources officer. Delivery may be by telefax, personal delivery, campus mail, or U.S. mail (certified mail, return receipt requested). The forms are available from the component human resources offices.
3.2 The human resources officer is available to answer questions regarding the complaint form and policies, regulations, rules and procedures and to provide assistance as needed, such as when an employee has communication difficulties due to language barriers or has a disability.
3.3 The human resources officer will retain the original complaint form and forward copies to the head of the department or unit, the respondent and to the administrator designated to review complaints under this regulation. The human resources officer also will facilitate and coordinate the investigation of the complaint.
3.3.1 The administrator who reviews formal complaints for academic institutions of the System will be the appropriate vice president.
3.3.2 The administrator who reviews formal complaints for agencies of the System will be the director, or designee.
3.3.3 The administrator who reviews formal complaints for the System Administrative and General Offices (SAGO) will be the appropriate vice chancellor. If there is no vice chancellor in the employee's administrative chain of command, the Chancellor will designate a vice chancellor to perform the functions of reviewing the complaint under this regulation.
3.4 The administrator will review the complaint and provide a written decision to the employee based on the merits of the complaint. A copy of the decision will be sent to the human resources officer. This will be the final decision on the complaint.
4.1 At any point in the informal or formal complaint process before the administrator issues a decision an employee may request a facilitated discussion or mediation.
4.2 The following actions are not eligible for mediation under the terms of this regulation:
(1) nonrenewal of a written contract of employment for a specific term,
(2) termination of an employee due to lack of grant funds,
(3) termination of a probationary employee's employment, and
(4) the voluntary resignation of an employee due to the employee's perception of unsatisfactory working conditions.
4.3 Mediation is not available for complaints regarding anyone missing a deadline stated in a policy, regulation or rule, or a supervisor's failure to follow all steps in System Regulation 32.02.02, Discipline and Dismissal Procedures for Nonfaculty Employees.
4.4 Each System component will establish procedures for designating an appropriate person(s) to represent it during the mediation process. This will generally be the head of the department or unit involved or a more senior administrator. The System component representative must be authorized to resolve the issues and have the authority to enter into a memorandum of understanding.
4.5 Each System component has an obligation to allow co-mediators from their own and other System components to participate in mediations for training purposes.
4.6 Each System component may choose to maintain its own pool of mediators or to participate in a System-wide pool administered by the SHRO. Any System employee may be considered for inclusion in a component or System-wide pool if the employee:
(1) has completed at least 40 hours of dispute resolution training as required by Texas Civil Practice and Remedies Code Section 154.052,
(2) has participated in at least three cases of mediation as an intern, mediator or co-mediator, and
(3) has his or her department head's, or next higher manager's, approval to serve as a mediator.
4.7 If an employee fails to appear for a scheduled meeting for mediation, the human resources officer may cancel the mediation if the mediator determines that the employee had been given adequate notice of the time, place, and purpose of the mediation. The informal and formal complaint procedures will remain available to the complainant, but mediation is no longer an option.
4.8 A settlement by the parties of some or all issues in the case, at any stage of the proceedings, will close the mediation with regard to any issues settled. Issues settled in the informal or formal stages of the complaint procedure will not be reopened during mediation. Issues not settled before or during mediation will be resolved through the process in section 5 of this regulation.
4.9 Agreements will be set forth in a memorandum of understanding. All parties must agree to the wording of the memorandum. Once the memorandum of understanding has been reviewed by the OGC and the System component human resources office, parties to the mediation must sign the memorandum stating their understanding and full agreement of these terms.
4.10 Consistent with the provision of the Governmental Dispute Resolution Act (Tex. Govt. Code 2009.001, et seq.), the mediation will be confidential and will not be open to the public. In addition, the mediator and all parties will not make public any matters discussed or any records made during the mediation. Generally, a mediator will not be called as a witness in any subsequent proceedings or hearings, either internal or external to the System. Settlement agreements set out in a memorandum of understanding under section 4.9 are subject to public disclosure.
5. RESOLUTION IF MEDIATION AGREEMENT IS NOT REACHED
5.1 If mediation ends without full agreement, all information related to the complaint, except that which was revealed during the mediation process, will be passed on by the human resources officer to the appropriate vice president of a university, the director, or designee of an agency or the appropriate vice chancellor for SAGO (see paragraph 3.3). This administrator will make the final decision on the complaint. If both parties agree in writing, information from the mediation may be passed on to the administrator who will make the final decision. If either party does not agree to pass on information from the mediation, that information will not be provided to the administrator. Any full or partial agreements resulting from the mediation (see Paragraph 4.8) will remain binding and will not be settled by the administrator.
5.2 The administrator, or designee, will notify the human resources officer of his/her decision. The human resources officer will notify the complainant, the respondent and the head of the complainant's department or unit of the final decision.
CONTACT FOR INTERPRETATION: System Human Resources Office
HISTORY: Last version: January 14, 2002
Component Rules Relating to this Regulation