Handbook - prior to January 2019

CONFLICT AND GRIEVANCE PROCEDURE

PREAMBLE

Conflict is a part of life in any healthy community.  Conflict may arise whenever individuals work closely with each other. They may result from philosophical disagreements, personality differences, habitual behaviors, miscommunication, misunderstanding, or willful intent to promote one’s own agendas with insufficient regard to the well-being of others.  When handled poorly, conflicts can create exclusion, harm, and violence; when handled well, they can produce growth, safety, and healthy community life.

Grievances, for purposes of this document, are a specific and potentially more serious, kind of dispute.  They may arise from inadequate or missing institutional policies, the misapplication of policies, or the failure to apply policies, which may result in discriminatory or harmful outcomes.

Eastern Mennonite University is committed to maximizing the positive energy of conflict while minimizing its negative consequences.  To this end, we strive to create a community of conflict-competent persons living and working in systems that promote repair of harms and restoration of relationships as a preferred response to conflict.

At EMU, the first approach to any conflict or grievance should be non-adversarial, undertaken with careful attention to fostering understanding and promoting problem solving. Our hope is that the majority of conflicts or grievances can be resolved through an informal process of conflict resolution.  Nonetheless, individuals have the right to request a formal process at any time.  In some instances, especially for particular kinds of grievances (for example, sexual harassment or misconduct), more formal processes may be necessary and appropriate as the first response.

The following informal and formal procedures are applicable to all students, faculty and staff of Eastern Mennonite University as well as applicants for faculty, staff or student status. These procedures are intended to comply with the requirements of Title IX of the Education Amendments of 1972 and the general employee grievance policy of Eastern Mennonite University.  These procedures are subject to amendment and/or pre-emption by applicable law to the extent required to achieve compliance with existing or future regulations, statutes or court decisions and nothing  herein is intended to deny or limit any person’s right to any remedy under any state or federal law now or hereafter in effect.   Furthermore, nothing contained in this document should be construed as legal advice.  Persons are advised to seek legal counsel should they have specific legal questions or concerns.

INFORMAL RESOLUTION

Informal Resolution for Interpersonal Conflicts or Grievable Issues

The following informal procedures for interpersonal conflict or grievable issues[1] in the workplace with coworkers and students are intended as a process to initiate a conversation between the involved parties. For grievable issues, the aggrieved person, the person who caused the alleged offense, or an involved third party may propose moving from informal to formal procedures at any time. While we encourage movement toward restoration of the relationship or situation, we recognize that there are situations in which that is not possible, at least not in the first instance.  For example, when there is a grievable issue and a real or perceived difference in power, the aggrieved person may move from using Step 1 directly to Step 4 in the informal procedure outlined here or may bypass the informal procedure altogether and proceed to the appropriate step of the formal process as may be required by law.  At all times, we strive to protect those who may have been harmed by a grievable action while maintaining the due process rights of those accused of a particular offense.

Procedure

Step 1:  Before initiating contact with the person who has caused the alleged offense, the aggrieved person should be clear about the offense taken, become familiar with the conflict and grievance process, obtain guidance in effective communication strategies, and learn more about other tools for working with conflict.  The ombudsman and/or the human resource office are available to assist an aggrieved individual to approach the person who caused the offense, or to advise whether a formal grievance procedure may be more appropriate as the initial step.

Step 2: If the person who has caused the offense recognizes it, she/he should take the first step to contact the aggrieved person.  If the aggrieved person is initiating contact, she/he should contact the alleged offender in a professional manner as soon as possible in order to set up a face-to-face meeting. If email is used for the first contact, it should merely include an invitation for a conversation about the specific incident. It should not be a list of grievances or narration of the specifics; the specific issues should be discussed in a manner that allows both persons to share their perspective.

Step 3: In the meeting, each person is encouraged to describe in his/her words, using “I-language”[2], what happened and how he/she would like to work towards solving the conflict or issue. Conversations should continue until all questions on both sides are addressed.  If either person is unsatisfied with the result, he/she should proceed to step 4. 

Step 4: Either person may request a mutually acceptable third party to help facilitate the conversation.  For example, a third party may be an informal facilitator, immediate supervisor, or trained mediator within the university to help each side be heard fairly by the other.  If desired, parties may invite an additional support person into these informal conversations.  These confidential conversations should continue until a mutually-acceptable solution is reached. 

Step 5: In the case of a grievable issue, if no mutually acceptable solution is found, parties may initiate the formal grievance procedures.

FORMAL GRIEVANCE PROCEDURE

Introduction

Formal grievance procedures are intended for situations in which there is the possibility of: 1) a lack of appropriate institutional policy; or 2) an error in institutional policies, in prescribed procedures for carrying out the policies, in the administration of those procedures, or in varying combinations of these, such that a discriminatory or harmful outcome may have resulted.  They are applicable to all students, faculty and staff of Eastern Mennonite University, as well as applicants for faculty, staff or student status.  The procedure provides a system to determine appropriate redress for the grievant while protecting the due process rights of the alleged offender.

Discrimination (the denial of equal access to goods, services or benefits on the basis of: 1) race, sex, ethnicity, age, or disability; or 2) the violation or misapplication of institutional policies) violates federal and state laws. The university has designed its grievance procedure as an internal method for seeking redress of complaints that may arise within the community.  Use of this procedure should facilitate a prompt and direct address to allegations of discrimination.

While the judicial and other external enforcement systems generally prefer that the aggrieved party exhaust internal grievance procedures where possible, aggrieved or alleged offender parties have the right to and may choose to use external processes to resolve their grievances. Parties may contact the Equal Employment Opportunity Commission, or the United States Department of Education Office for Civil Rights (OCR). The aggrieved party should note that the statute of limitations for discrimination charges is typically 180 days from the date of the discriminatory event, or, for the OCR, 60 days after the conclusion of internal procedures, although that period may be  extended by Virginia and Federal law in some cases of alleged employment discrimination. 

Eastern Mennonite University is committed to maintaining a community that is free from harmful discrimination on the basis of race, color, sex, national or ethnic origin, age, or disability.  University policies on affirmative action and nondiscrimination reflect that commitment, and describe our responsibilities under the law. These policies reject discrimination on the noted categories, and also include prohibitions against sexual harassment or harassment on any other basis. Any member of the university community who believes that he or she has experienced discrimination (including sexual harassment) on the basis of any of the above mentioned categories is encouraged to make inquiry or lodge a complaint using the grievance procedures outlined here.

Situations of alleged or perceived discrimination or grievable issues can often be resolved through the informal procedures described above, involving the parties to the complaint and others such as the ombudsman, immediate supervisor, department chair, member of the Student Life staff, or Human Resources. However, in cases of alleged discrimination or harassment, the parties are not required to use the informal procedures set out above.

Procedure

The formal grievance procedure is intended to provide resolution for situations where the informal resolution procedures have not brought about resolution or are not appropriate. When a university employee becomes aware of a situation of alleged discrimination (and that situation is not resolved promptly on an informal basis), university employees familiar with the situation should encourage the aggrieved party to contact one of the complaint coordinators and to bring a complaint via the Level I or Level II procedure outlined below.  When both parties are students, cases of alleged discrimination are normally resolved through the student judicial process. However, members of the student body may elect to utilize the procedures set forth in both Level Iand Level IIbelow.

Designated Complaint Coordinators for filing of complaints are as follows: 

(a)   Complaints against students – Vice President for Student Life

(b)  Complaints against faculty – Provost

(c)   Complaints against staff – Vice President for Finance

In any situation involving the university president as either the aggrieved party or the alleged offender, the duties in this procedure normally carried out by the president will be carried out by the chair of the EMU Board of Trustees.

Important Protections

Protection of the Aggrieved Party.  Retaliation against the aggrieved party for filing a charge of discrimination in good faith is a violation of the university’s discrimination policy and applicable law. Any act of retaliation directed against the aggrieved party, respondent, witnesses, or participants in the process will be treated as a separate and distinct event and will be subject to the grievance procedure.

Protection of the Alleged Offender.  The lodging of a complaint is not in itself evidence of guilty behavior. A complaint shall not be taken into account during reappointment, promotion, merit, or other evaluation or review unless and until the grievance process is completed and a document concerning the matter is placed in the alleged offender's personnel file.  However, at the discretion of the appropriate complaint coordinator, a final decision on such reappointment, promotion, merit or other evaluation or review may be deferred pending the outcome of the grievance process.

Confidentiality.  All participants in the grievance process, including the aggrieved party and the alleged offender, witnesses, advisors, negotiators, members of the panels, and officers, shall respect the confidentiality of the proceedings. Participants are authorized to discuss information developed through the proceedings only with those persons who have a genuine need to know in order to assist the parties through the process. This requirement is intended to protect the confidentiality of information developed through the grievance process (e.g., through mediation sessions, reports, interviews, etc.) and to permit the parties to speak freely in resolving their issues. Moreover, to encourage the free exchange of information and reach resolution, any offers to compromise any grievance shall not be admissible in any subsequent legal proceedings unless all parties to the grievance agree.  

Timelines.  Time limits outlined in this procedure are designed for expeditious resolution. Failure to strictly adhere to time limitations shall not be grounds for objection or appeal of findings by any parties involved in this process unless the parties can demonstrate prejudice to their abilities to present their case. Timelines cited in this document are intended to serve as outside limits for actions to occur.  Time limitations may be waived by mutual agreement or when good cause is shown for them to be extended.

Time limitations may also be altered if, in the judgment of the complaint coordinator, additional time is needed to reasonably accommodate the schedules of the parties involved (including the principal parties, witnesses, committee members, etc.) due to schedule or availability issues such as sickness, vacation, personal leave, etc.  In the event that the time limitations are extended, the complaint coordinator will notify both the aggrieved party and the alleged offender of the length and the reasons for the extension.  (Note that complaint coordinators do not have the ability to extend any deadlines for legal proceedings that may exist under applicable law.)

Bringing a Complaint

An aggrieved party may bring a complaint to the appropriate complaint coordinator by means of the formal grievance form, including a written report of the alleged incident(s).  EMU grievance procedures are designed to be as responsive as possible to grievances that might arise within the university community and to be sensitive to the needs of both parties.  The procedures provide both for mediation and/or for a hearing with a committee. Mediation is EMU’s preferred approach in most cases where the grievance process is necessary.  However, use of the mediation process is purely voluntary and can be terminated at any time by either of the parties.

LEVEL I PROCEDURES -- MEDIATION PROCESS

The Level I procedures are designed to achieve a mutually agreeable solution and are entirely voluntary on the part of the aggrieved party and the alleged offender.

Step 1: Initiating the Process

Level I procedures must be initiated within 90 days of the alleged incident or the last act of the particular situation giving rise to the grievance.  The aggrieved party can initiate the process by contacting the appropriate complaint coordinator.  Again, either party may bypass or end the Level I procedure at any time and move directly to the Level II procedure.

Step 2: Mediation Sessions

The appropriate complaint coordinator works with the aggrieved party and alleged offender to identify a mutually acceptable mediator.  Mediation sessions are held as quickly as possible. Every effort should be made to conduct the mediation session and reach resolution within one month of the request for mediation.

Step 3: Reaching an Outcome

The mediation sessions end when a resolution has been reached, or when the aggrieved party or the alleged offender has terminated the process. Some examples of possible resolutions include discussion of the feelings and perceptions of the parties; agreement to terminate specific behavior(s); letter to the file; and/or withdrawal of the complaint. Upon successful resolution of the grievance, the mediator should provide a summary of the resolution agreement to the complaint coordinator and have the parties sign the same or any other document memorializing the agreement. (See above for appropriate complaint coordinator.)

LEVEL II PROCEDURES – FORMAL GRIEVANCE COMMITTEE

Step 1: Initiating the Process

The alleged offender may bring the matter to a grievance committee through a formal grievance form filed with the appropriate complaint coordinator. The university ombudsman or complaint coordinators for the particular grievance are available to assist with completing the formal grievance form. Complaint coordinators will submit the written complaint to the Director of Human Resources. The complaint should indicate the desire for formal action or a hearing with a grievance committee. The Level II process must be initiated within 90 days of the grievable incident or within 90 days of the conclusion or termination of a Level I mediation process, whichever is later.

Step 2: The Grievance Committee

Human Resources will promptly inform the provost of the receipt of the complaint, and may consult directly with the respective vice-president(s) of the division of the University to which the parties belong.  If a hearing is requested with the grievance committee, Human Resources or the provost will contact the president immediately.  Unless the President is alleged to have been involved in the grievable incident, the president will convene a grievance committee comprised of three persons.  If the President is alleged to have been involved in the grievable incident, the Chair of the Board of Trustees will convene the grievance committee.  The committee is selected from a pool consisting of all university employees who have been employed full time for more than 12 months.  The aggrieved party will select one person from this pool, the president (or Chair of the Board of Trustees if the President is alleged to have been involved in the grievable incident) will select a second person and the two appointees together select a third committee member.  The committee will appoint one of its members to serve as the chair.  As appropriate, either the provost or Director of Human Resources will brief the committee on matters of discrimination prohibited by the university policy, matters of grievance, questions on the grievance process, and on evidentiary standards.  The committee will have 21 days from the time the complaint was filed to complete the hearing.

Step 3: Hearing Procedures

The committee will determine the most appropriate manner to proceed with the case. Options include the examination of written evidence, interviews with the aggrieved party and the alleged offender, or further investigation, if needed. When the hearing is scheduled, the following guidelines serve to protect the rights of the parties and to assure the fairness of the process:

(a) The alleged offender will receive a copy of the aggrieved party's formal grievance form at least ten days in advance of the first meeting of the committee.

(b) Each of the parties will receive notice of the time and place of the hearing in order to prepare at least ten days in advance of such hearing.

(c) Each of the parties has the right to be present when the case is heard.

(d) Each of the parties has the right to present evidence and to call a reasonable number of witnesses as determined by the grievance committee. Witnesses may be present only when testifying or being questioned.

(e) Each of the parties has the right to question all witnesses.

(f) In cases of alleged sexual harassment, the only sexual history admissible as evidence is that between the parties.

(g) Each party has the right to an advisor of his or her choice from the student body, faculty or staff of the university. This person may help with the preparation of the case, may be present when the case is heard, and may confer with the advisee during the hearing. The advisor, however, may not address the grievance committee or question witnesses.

  The hearing is closed to all persons other than the parties, advisors, witnesses while testifying, and any person designated by the Committee as assisting the Committee or as necessary to the conduct of the hearing.  All parties to the hearing are expected to comport themselves with appropriate decorum consistent with a judicial proceeding.  The Committee is charged with the conduct of the proceeding and has the right to limit or terminate questioning that it deems irrelevant, harassing, or duplicative.   After appropriate warnings, the Committee may also exclude witnesses for misconduct and in extreme cases of misconduct, may exclude the parties and/or their advisors. 

Step 4: Decisions

The committee shall make a finding as to whether the act or acts alleged in the complaint occurred, and whether such an act or acts violate the university’s policies.

Standard of Proof.  A violation of the university policies shall be found by the committee only when there is a preponderance of evidence that a violation occurred.  Preponderance of the evidence means that it is more likely than not that the alleged violation occurred. 

 Deliberation.  In all deliberations, the grievance committee shall attempt to reach a unanimous decision. If a unanimous decision cannot be reached, a vote shall be taken. All decisions of the committee shall be made by a majority. When the committee is not unanimous in its findings or penalties, the report shall record both majority and minority opinions. The report shall be signed by all members of the committee. In the report there will be no recording by name of the negative or affirmative votes of any individual members of the committee.

Report of Decision.  No later than one week after the hearing concludes, the committee shall submit to the provost a written report of its finding(s) as described above, and a summary of the reasons for its judgment and its decision. If the provost does not concur with the grievance committee regarding the finding(s), the provost shall immediately convene a meeting with the committee to resolve the matter.  (The provost’s discretion in objecting to the report is limited to matters of policy – for example, whether the facts as determined constitute a violation of policy, whether the policy was construed properly by the committee, etc.)  No later than two weeks after the conclusion of the original hearing, the committee shall report its finding(s), a summary of the reasons for its judgment, and its decision in a written statement to the aggrieved party and to the alleged offender. The report shall also be sent to Human Resources for implementation as necessary.

Where possible, the decision shall be designed to remedy the harm done to the aggrieved party and to the greater university community where appropriate, and to protect other members of the university as necessary. Grievances often involve unique elements, and the remedy fashioned will depend on the findings and the nature of the case.

The following are examples of possible outcomes for faculty and staff:

(a)    University decision is upheld if one has been rendered;

(b)   Permanent prohibition to participate in grading, honors, recommendations, reappointment and promotion decisions, or other evaluations concerning the aggrieved party;

(c)    Oral warning or probation;

(d)   Letter of warning or reprimand and copy of the grievance record placed in the personnel file of the alleged offender;

(e)    Denial of access to University resources, such as funds for research and travel, merit pay or other salary increases for a specified period, and/or;

(f)    Suspension without pay or dismissal from the University.

Consequences for students will be consistent with those authorized for the student disciplinary system, up to and including dismissal.

Step 5: Implementation of the Decision

Ordinarily, the Director of Human Resources will consult with appropriate university officials, as needed, in implementing the decision of the grievance committee.

Appeal Procedures

Either party to the complaint may appeal the decision of the grievance committee to the president. The president will review the record of the grievance process with any fact-finding and conclusions that have occurred. The president, at his or her discretion, may hear statements from witnesses who have not yet been heard, and may re-interview witnesses previously heard. In all cases where an appeal has been received, written notice of the president’s decision shall be sent to both parties and to the grievance committee that heard the case, as well as to the provost and Director of Human Resources. The notice shall include a statement of the reason for the appeal and the findings of the president. 

The appeal must be filed with the president within 10 calendar days of the report of the committee decision.  The president will have 30 days to conclude work on the appeal and render a decision. 

If either party to the complaint continues to be unsatisfied with the decision, he/she may appeal it to the EMU Board of Trustees within 10 calendar days of the president’s decision. The chair of the board of trustees, in consultation with other board members, will have 30 days to review written records of the appeal, background and the decisions of the committee and the president. He or she will have the same discretion as the president to interview or re-interview witnesses as deemed necessary and appropriate.  After completion of the review, the chair will render a decision. The decision of the chair of the board of trustees will be final.

Record

A copy of the report shall be placed in the appropriate files (Student Life or Human Resources) at the conclusion of the grievance process.

Abuse of Process

Any person determined to have invoked the grievance procedures in bad faith, or to have knowingly presented false or misleading testimony, will be subject to disciplinary action, up to and including dismissal from the university.

                                                                                                                                              Approved by President’s Cabinet, June 5, 2014
                                                                                                                                              Approved by Board of Trustees, June 21, 2014