29.6 Grievance

(Amended 9/16)

1. Introduction.
   1. Scope. The procedures described in this section constitute the exclusive remedy within the University for a faculty member who wishes to challenge the legitimacy of some University administrative action or non-action that affects the faculty member, except for a complaint about:
      1. a decision to deny the faculty member tenure, promotion, or reappointment (which falls under III-29.5), or a decision to terminate a clinical faculty member, or to deny promotion or reappointment to a clinical faculty member (which falls under III-29.9);
      2. any action insofar as it was taken under the Regents Rules;
      3. any action or non-action insofar as it is subject to the Iowa Tort Claims Act; or
      4. any action or non-action on any ground other than one or more of the grounds stated in paragraph (2) below.
   2. Grounds for a Challenge to the Legitimacy of Some Administrative Action or Non-Action. A challenge by a faculty member to the legitimacy of some University administrative action or non-action that affects the faculty member may be made through these procedures only on one or more of the following grounds:
      1. Violation of a University Obligation: that the action or non-action is in violation of a written promise to the faculty member by an authorized administrator of the University,
      2. Unfair Impediment: that the action or non-action significantly impairs the ability of the faculty member to do what is expected of a faculty member, and that the action or non-action is not related to a reasonable institutional need or to the faculty member's performance as a faculty member,
      3. Improper Reason: that the action or non-action is based in part or in whole on the faculty member's race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives a person of consideration as an individual.
      4. Violation of Academic Freedom or Tenure Rights: that the action or non-action is in violation of the faculty member's academic freedom or tenure rights.
   3. Stages in these Procedures. The stages in the procedures in a faculty member's challenge to the legitimacy of some administrative action or non-action that affects the faculty member are:
      1. Informal Discussions
      2. Exchange of Letters and Further Discussion
      3. Investigation, Hearing, and Faculty Judicial Panel Recommendation
      4. President's Decision
2. Informal Discussions. A faculty member who wishes to challenge the legitimacy of some administrative action or non-action is expected to make every reasonable effort to settle the matter through informal discussions with the departmental executive officer, the collegiate dean, the Academic Officer, or anyone else connected with the matter. In any such informal discussion, the faculty member may be accompanied by legal counsel and/or another faculty member of their choice. As a part of the informal discussion stage, either party may request the services of the Office of the University Ombudsperson (see also VI-2).
3. Exchange of Letters and Further Discussion. If the matter is not settled to the faculty member's satisfaction by informal discussions, the faculty member may proceed only by submitting to the administrator who is chiefly responsible for the action or non-action about which the faculty member is complaining a written request for a written statement of the reasons for the action or non-action. In the request, the faculty member must state in some detail the nature of the complaint and the remedy that is sought. Within twenty business days of receiving this request, the administrator shall inform the faculty member in writing and in reasonable detail of the reason or reasons for the action or non-action. If this exchange of letters does not settle the matter to the faculty member's satisfaction, a meeting between the faculty member and the administrator shall take place in a further attempt to settle the matter. At this meeting, the faculty member may be accompanied by another faculty member of their choice.
4. The Nature of the Investigation.
   1. Request for an Investigation. If the exchange of letters and further discussion do not settle the matter to the faculty member's satisfaction and the faculty member wishes to pursue the challenge, the faculty member may request an investigation by a faculty judicial panel. The request shall be directed to the Presiding Officer of the Faculty Judicial Commission, who shall forward copies of the request to the faculty member's departmental executive officer, the collegiate dean, the Academic Officer, and the administrator with whom the exchange of letters took place. In the request, the faculty member must specify the ground or grounds for the challenge with as much specificity as possible on the basis of evidence or information available to the faculty member when the request is submitted and describe the remedy that is sought. The request for an investigation must be sent within twelve months of the faculty member's receipt of the administrator's reasons for action or non-action.
   2. Claim Within Scope of Procedures. Upon receiving the request for an investigation, the Presiding Officer shall review it to confirm that it falls within the scope of this section. Notwithstanding the preceding sentence, the judicial panel shall have sole authority to determine whether the faculty member's request for investigation states a frivolous claim or falls outside the Grounds for Challenge, as provided in paragraph (3) below.
      1. If the Presiding Officer determines that the request does fall within the scope of this Section, then the Presiding Officer shall appoint a faculty judicial panel to review and decide the case.
      2. If the request does not fall within the scope of this section, then the Presiding Officer shall notify the faculty member and the Academic Officer, and the President of the University shall decide whether or not the claim falls within the scope of this Section. The Presiding Officer shall provide the President with a copy of the faculty member's request for an investigation and the Presiding Officer's decision that the request does not fall within the scope of this Section. In making the final determination, the President may, at their discretion, request oral or written statements from the parties. The President shall notify the Presiding Officer of their decision. If the President determines that the request for investigation falls within the scope of this Section, then the Presiding Officer shall appoint a faculty judicial panel to review and decide the case. If the President determines that the request for investigation does not fall within the scope of this Section, then the Presiding Officer shall notify the faculty member and the Academic Officer. In any case, the Presiding Officer shall forward copies of the President's decision to the faculty member and the Academic Officer.
   3. Claim Within Grounds. Once a panel has been appointed, the Presiding Officer shall direct the panel to review the request for investigation and to decide, as soon as possible, whether, regardless of its validity, it states a frivolous claim or falls outside the Grounds for Challenge stated under paragraph (a)(2). To make this determination, the panel may, in its discretion, request oral or written statements from the parties. If the panel decides that the request for investigation states a frivolous claim or falls outside the Grounds for Challenge, the panel shall end its investigation and make its report. If the panel decides that the request for investigation does not state a frivolous claim and does fall within the Grounds of these procedures, it shall notify the Presiding Officer, who shall direct the Investigating Officer to begin the investigation.
   4. Stay of Proceedings. The Presiding Officer shall have the power to suspend the deadlines specified under this Section or to stay any proceeding under this Section when requested to do so in writing by either or both parties or the Ombudsperson and when, in the judgment of the Presiding Officer, the resulting delay would significantly advance the possibility of achieving an agreed-upon settlement by the parties.
   5. Submission of Preliminary Statements. The Investigating Officer shall begin the investigation by requesting each party to provide, within ten business days of the request, a Preliminary Statement which shall include the following:
      1. a statement of the issues of fact or judgment, segregated according to the applicable Ground for Challenge, that identify any point or points of disagreement between the University and the faculty member;
      2. a list of the relevant non-testimonial evidence which each party seeks from the opposing party or from others not party to the dispute;
      3. copies of any relevant non-testimonial evidence in the party's possession, custody or control; and
      4. the identity and location of witnesses each party plans to call.
   6. Obtaining the Evidence.
      1. Based on the information received under paragraph (5) above, the Investigating Officer shall obtain the relevant non-testimonial evidence requested by the parties in their Preliminary Statements. The Investigating Officer is empowered to request and to receive the cooperation of the Academic Officer, the collegiate dean, the departmental executive officer, the grieving faculty member, other faculty members, and other University employees and to request and to receive from such persons all non-testimonial evidence of possible relevance to the case, including personnel records concerning teaching, scholarship, or professional service of other faculty members. Faculty members, staff, students and officials of the University have a duty to deliver promptly any such documents, including personnel files that are requested by the Investigating Officer and otherwise to cooperate with the investigation.
      2. If the parties dispute the relevance of any document or part of a document, then the Investigating Officer shall discuss with the parties the possible resolution of the dispute and try to reach an agreement. If no agreement can be reached, then the document or part thereof in question shall be provided to the panel pursuant to the procedures under paragraph III-29.6d(12), together with each party's brief statement regarding its relevance.
   7. Distribution of Materials to the Parties. The Investigating Officer shall provide each party with a copy of the opposing party's Preliminary Statement submitted under paragraph (5) above. The Investigating Officer also shall provide the parties with a copy of all the relevant non-testimonial evidence that the Investigating Officer has obtained under paragraph (6) above.
   8. Confidentiality. During the investigation, all non-testimonial evidence obtained for a case shall be presumed to be confidential with respect to all persons who do not need to have access to the evidence in performing their duties or exercising their rights under these regulations. Prior to the beginning of a hearing or the termination of the panel's responsibilities, whichever occurs first, each party shall be afforded an opportunity to designate evidence or portions of evidence that should continue to be regarded as confidential, and this evidence shall be so marked. Neither party may disseminate or allow to be disseminated any evidence presumed or marked as confidential under this paragraph while a case is pending or after the case has been completed. Documents that were written with an explicit or implied expectation that they were confidential or would not be revealed to the faculty member shall be made available to the parties only after the name of the author or authors of the document is excised and only, to the maximum extent possible consistent with providing the substance of the contents of the document to the parties, after identifying aspects or portions of the documents have been excised.
   9. Final Statements and Rebuttal.
      1. The parties shall submit to the Investigating Officer and to the opposing party and counsel their respective Final Statements in writing according to the schedule set forth below. In their Final Statements, the parties shall set forth their respective positions on the opposing party's Preliminary Statement and on the evidence provided by the Investigating Officer.
      2. The faculty member shall submit their Final Statement first, within fifteen business days following their receipt of the non-testimonial evidence. Within fifteen business days following the University's receipt of the faculty member's Final Statement, the University shall submit its Final Statement, which may respond to the arguments raised in the faculty member's Final Statement.
      3. The faculty member may submit a written Rebuttal to the University's Final Statement, provided that the faculty member does so within ten business days following the faculty member's receipt of the University's Final Statement. If submitted, the Rebuttal shall be limited to the arguments raised in the University's Final Statement.
      4. The parties may not submit any additional pre-existing evidence with their Final Statements or Rebuttal, although they may attach exhibits such as charts, tables, graphs or summaries created for purposes of these proceedings. No witness statements or affidavits may be submitted with these Final Statements or Rebuttal. When addressing the need for a hearing, the parties may characterize the testimony they anticipate would be presented at such a hearing. Such characterizations in the parties' Final Statements and Rebuttal, however, are argument on the issue of the need for a hearing, and the panel shall not consider them as evidence on the merits of the case.
   10. Assistance to the Parties. Throughout the investigation, the Investigating Officer may meet with the parties together or separately and may assist them in complying with the requirements of paragraph (6) above, as seems appropriate to the Investigating Officer. The Investigating Officer may extend deadlines for submissions by the parties when doing so, in the Investigating Officer's judgment, will expedite the case and/or improve the quality of the material presented to the panel.
   11. Report to the Panel. The Investigating Officer shall report to the panel in writing, with copies to the parties and counsel, any failure, delay or other obstruction by a party in any part of these procedures and shall indicate to the panel whether the failure, delay or obstruction appears to be justifiable. Taking into account the Investigating Officer's report concerning the failure, delay or obstruction, the panel may draw negative inferences and take appropriate action on the basis of a failure of a party to provide relevant documents or other materials or information. Excessive delays or other obstruction to providing documents or other materials or information may be treated by the panel as a failure to provide the document. The parties shall not submit any response to the report to the panel.
   12. Distribution of Materials to the Panel. The Investigating Officer shall provide each member of the Judicial Panel with:
       1. a copy of the Preliminary Statements submitted under paragraph (5) above;
       2. a copy of the Final Statements and Rebuttal, if any, submitted under paragraph (9) above;
       3. a copy of any item of the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (6) above which either party has referenced in its Final Statement or Rebuttal submitted under paragraph (9) above; and
       4. access to a complete copy of all the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (6) above.
   13. Conference Regarding a Hearing. After Final Statements and the Rebuttal, if any, have been submitted, the parties and their attorneys shall meet with the Investigating Officer to discuss:
       1. the desirability of a hearing before the judicial panel at which oral testimony will be taken from witnesses on one or more of the grounds, and the factual issues to be addressed by such testimony; and
       2. the desirability of oral argument by counsel or the parties to the judicial panel regarding the issues presented under one or more of the grounds and the time constraints reasonably to be imposed on such argument.
          
          The judicial panel shall hold a hearing and/or entertain oral argument if the panel or either party desires it. The Investigating Officer shall impose any limitations on the time for argument to the panel. The Investigating Officer shall advise the parties of the Judicial Panel's limitations on the factual issues to be considered in the hearing.
   14. Communication between the Panel and the Parties. A copy of all communication regarding the matter in dispute by the Judicial Panel or any of its members to either party shall be given to the opposing party, all counsel and the Investigating Officer. All communication regarding the matter in dispute by either party or counsel, to the Judicial Panel or to any of its members, shall be directed through the Investigating Officer, except at any hearing held in the case. This rule shall apply even if such communication is responsive to a prior communication from the Judicial Panel or any of its members.
5. The Nature of the Hearing.
   1. Open Hearing. The hearing shall be open unless:
      1. both parties request that it be closed, in which case it shall be closed; or
      2. it is necessary to close the hearing temporarily to preserve the confidentiality of documents or other matters or to protect witnesses who fear reprisals.
      The decision to close the hearing for any of the reasons specified in this paragraph shall be made by the Investigating Officer in consultation with the panel. A closed hearing shall be closed to all except the panel, the parties and their counsel, the Investigating Officer, the testifying witness and the recorder of the proceedings.
   2. Recording. The hearing shall be recorded by videotape. The Investigating Officer shall ensure that the recording process maintains the confidentiality of the evidence, and that the resulting videotape is maintained in a secure manner, protecting its confidentiality. The record of the hearing may, at the discretion of the panel, exclude the discussion of procedural matters. Either party or the panel may request that the proceedings also be recorded by a stenographic reporter. The party requesting such additional recording shall bear its cost; if the panel requests it, then the Investigating Officer shall bear its cost. If either party requests a transcript, that party shall bear its cost. If the panel requests a transcript, the office of the Investigating Officer shall bear its cost.
   3. Confidentiality. In any hearing or portion of hearing that is closed, all testimony shall be presumed to be confidential with respect to all persons who do not need to have access to that information in performing their duties.
   4. Sequestration of Witnesses. At the request of either party, witnesses shall be sequestered from the hearing prior to their testimony, unless the panel, in the interests of justice, objects to such sequestration.
   5. Rights of the Parties. Subject to the Investigating Officer's power to control the hearing, described in paragraph (6) below, the faculty member may be accompanied by another faculty member of their choice, subject to paragraph (4) above, regarding sequestration of witnesses. In addition, each party shall have the following rights:
      1. to decide which witnesses to call to testify on behalf of that party;
      2. to present evidence through the testimony of a party's own witnesses;
      3. to present any other relevant evidence;
      4. to cross-examine any witness called by the other party;
      5. to make an opening statement before and a closing statement after the presentation of evidence;
      6. to submit a written argument at the conclusion of the presentation of evidence; and
      7. to be consulted and to present oral and/or written argument for the purpose of influencing any decision made by the Investigating Officer in the exercise of the Investigating Officer's power to control the hearing.
   6. Investigating Officer. The Investigating Officer shall have the power to control the hearing, in consultation with the panel, including but not limited to the power:
      1. to ask questions of any witness;
      2. to limit the presentation of evidence on grounds of irrelevancy or redundancy when necessary to avoid an excessively long hearing, but the investigating officer shall not exclude evidence on the basis of formal rules of evidence that would govern a judicial proceeding;
      3. to limit the length of opening and closing statements;
      4. to limit the length of any written arguments submitted;
      5. to limit the time after the conclusion of the presentation of evidence for submission of written arguments to the panel;
      6. to set the date, time, and place for conducting the hearing, including the beginning, ending, adjournments, and any reopenings, in the interest of achieving an expeditious proceeding and accommodating the convenience of the parties.
      7. to take such action as seems appropriate to preserve the confidentiality of marked documents or other confidential matters to the maximum extent possible consistent with a full opportunity of each party to present and hear relevant evidence.
   7. The Panel. The panel shall have the power to ask questions of any witness.
6. Burdens of Proof and Standards of Judgment. The Judicial Panel shall make findings of fact and shall draw conclusions based on those findings, consistent with the burdens of proof and standards of judgment applicable to each Ground for Challenge, as set forth below.
   1. Violation of a University Obligation. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, that on the basis of a written promise to the faculty member by an authorized administrator of the University, the faculty member was justified in believing that the administrative action or non-action would not occur and that the faculty member relied detrimentally on that promise. The faculty member must either present in evidence the document or documents upon which the claim of a violation of a University obligation is based or else justify the failure to do so.
   2. Unfair Impediment. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, both 1) that the action or non-action significantly impairs the ability of the faculty member to do what is ordinarily expected of a faculty member, and 2) that the action or non-action is not significantly related either to any reasonable institutional need or to the faculty member's performance as a faculty member.
   3. Improper Reason. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, both 1) that the occurrence of the administrative action or non-action was substantially affected by an improper reason, and 2) that the action or non-action adversely affects the faculty member. If the faculty member shows only that there exists or existed a condition that might have been involved improperly in the action or non-action, the panel shall not find in favor of the faculty member on this ground.
   4. Violation of Academic Freedom or Tenure Rights. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, that some administrative action or non-action did violate the faculty member's academic freedom or tenure rights.
7. Report of the Panel.
   1. The panel shall make its recommendations in a written report which shall be prepared and sent to the Presiding Officer as soon as possible after the conclusion of the investigation and hearing. If the panel has found in favor of the faculty member on any ground, it may make any recommendations that it judges to be required by the equities of the case, except that it may not recommend the paying of counsel fees.
   2. The report shall contain findings of fact and conclusions drawn from those findings as well as the panel's recommendations, if any. The report shall include findings of fact and conclusions drawn from those findings that resolve each and every ground raised by the faculty member, even if the conclusion reached on one ground is sufficient to support the Panel's recommendation. The report shall specifically include the following:
      1. an express statement of each ground raised by the faculty member, including the identity and definition of each ground specified in III-29.6a(2);
      2. an express statement of the burden of proof governing each ground raised by the faculty member as specified in III 29.6f; and
      3. an opinion explaining the reasons for the panel's conclusions and recommendations, if any, based on the findings of fact and the burden of proof and standard of judgment applicable to each ground raised by the faculty member.
   3. The report shall be written in a manner that satisfies the requirement of protecting confidentiality to the maximum extent possible as provided in III-29.4h and III-29.6d(8). In preparing its report, the panel may, in its discretion, seek the assistance of the Investigating Officer.
   4. If the panel has not found in favor of the faculty member on any ground, the Presiding Officer shall send copies of the report only to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, and the Investigating Officer. The case is then closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review.
   5. If the panel has found in favor of the faculty member on any ground, the Presiding Officer shall send copies of the report to the persons named in paragraph (4) above, and shall also send a copy of the report to the President.
8. The President's Decision. If the panel has found in favor of the faculty member on any ground, the President of the University shall decide whether or not the University will accept the recommendations of the panel. The President may seek advice of counsel concerning the decision, but the Office of General Counsel shall not provide that advice if it had previously advised the University Representative concerning the matter.
   1. Basis for President's Decision. The President's decision shall be based on all documents, testimony, and other matters presented to the panel. The President shall not hold a hearing, but may meet with the panel. Furthermore, either party may submit a brief to the President within ten business days of receiving notice that the Presiding Officer has transmitted the panel's report to the President. In making the decision, the President shall give great weight to the recommendations of the panel. Like the panel, the President shall be bound by the burdens of proof and standards of judgment stated in paragraph (f) above.
   2. President Accepts All Recommendations in Favor of Faculty Member. If the President accepts all of the panel's recommendations in favor of the faculty member, the President shall direct that the panel's recommendations be implemented. The President shall so inform the Presiding Officer in writing, and shall send a copy thereof to the panel members. The Presiding Officer shall send copies of the President's final decision to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, each of the members of the panel, and the Investigating Officer. The case will then be closed.
   3. President Does Not Accept the Panel's Recommendation. If the President does not accept one or more of the recommendations of the panel, the President shall inform the panel members in writing of the reasons for not accepting the panel's recommendation and shall send a copy thereof to the faculty member, the University Representative, the Presiding Officer and the Investigating Officer. Within five days of receiving the President's decision, either party may submit a brief to the Investigating Officer for the panel's consideration. The Investigating Officer shall send copies of any brief so submitted to the opposing party, each member of the judicial panel and the Presiding Officer. The panel then shall reconsider its recommendations and report the result of its reconsideration to the President in a supplementary written report. The panel shall send copies of its report to the parties, the Presiding Officer and the Investigating Officer. The panel shall respond within ten business days of the date on which the panel's chair receives the President's letter or the parties' briefs, whichever is later. Within five days of receiving the panel's report, either party may submit a brief to the President, with copies to the opposing party, the Presiding Officer and the Investigating Officer. The President then shall make a final decision on the matter. In making this final decision, the President shall give great weight to the views of the panel.
      1. After Panel Reconsideration, President Decides Against Faculty Member. If, after panel reconsideration, the President decides against the faculty member on all grounds, the President shall inform the panel members in writing of the final decision and of any additional reasons supporting the decision and shall send a copy thereof to the Presiding Officer. The Presiding Officer shall send copies of the President's final decision and reasons to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, each of the members of the panel, and the Investigating Officer. The case will then be closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review.
      2. After Panel Reconsideration, President Accepts At Least One, But Not All, Recommendations in Favor of Faculty Member. If, after panel reconsideration, the President accepts at least one, but not all, of the panel's recommendations in favor of the faculty member, the President shall direct that those recommendations that the President accepts be implemented. The President shall inform the panel members in writing of those recommendations that the President accepts, and of those that the President does not accept, and of any additional reasons supporting the decision. The President shall send a copy of the decision to the Presiding Officer. The Presiding Officer shall send copies of the President's final decision to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, and the Investigating Officer. The case will then be closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review with regard to those recommendations not accepted by the President.