1001.7 Discrimination Grievance Procedure
Effective: June 22, 2000
Revised: February 2007
Review Date: February 2009
Responsible Party: Chancellor/HR Director
"Affirmative Action Officer," as stated in policy 1001.1, "The Chancellor will appoint an Affirmative Action Officer to assist university personnel to implement its Affirmative Action and Equal Opportunity policies."
"Appeals Committee" means the ad hoc committee to which a respondent may appeal findings of probable cause in a Report of Findings.
"Applicant" means any individual who applies for admission to the University or any of its programs or services as well as any applicant for employment.
"Complaint/Discrimination Complaint" means a formal or informal statement of facts and circumstances that a complainant believes constitutes a violation of the University's Equal Opportunity/Affirmative Action Policy or any federal or state civil rights law; or any regulation, contractual provision, or other University policy that imposes nondiscrimination requirements upon the institution and its representatives.
"Complainant" means the individual bringing a formal or informal complaint of discrimination under these policies and procedures.
"Corrective Action" means the administrative steps taken by the University to remedy a complained-of situation, stop alleged discriminatory behavior, preclude the recurrence of discriminatory actions, and prevent retaliation.
"Designee" means the Human Resources Director at Montana State University-Northern.
"Disciplinary Action" means any steps taken by a respondent's supervisor to reprimand respondent for inappropriate or impermissible behavior which has violated University policy and/or to preclude or prevent further acts of discrimination.
"Discrimination" means treating a person differently than other similarly situated individuals because of their race, color, national origin, sex, marital status, sexual orientation or preference, age, religion, creed or political belief, mental or physical disability, or status as a Vietnam era or disabled veteran in admission, access to or conduct of University programs and employment.
"Effective Date" means the date a complaint becomes active, specifically the date the Affirmative Action Officer or designee signs a formal complaint as officially received.
"Equal Opportunity" means nondiscrimination on the basis of race, color, national origin, sex, marital status, sexual orientation or preference, age, religion, creed or political belief, mental or physical disability, or status as a Vietnam era or disabled veteran.
"Faculty", for the purpose of this policy only, means any individual who teaches at the University, including anyone employed as a graduate teaching assistant.
"Formal Complaint" means a signed written statement of allegations of discrimination which is investigated by an Investigator or the Affirmative Action Officer and about which a formal Report of Findings is issued. Findings of probable cause that discrimination occurred or University policies and procedures were violated may result in official disciplinary action against the respondent.
"Informal Complaint" means an oral statement which is discussed with an Investigator or the Affirmative Action Officer but is not formally investigated and does not result in official disciplinary action against the respondent.
"Investigator" means the individual assigned by the Affirmative Action Officer to conduct the investigation of formal complaints of discrimination, normally the Human Resources Director, but may be the Affirmative Action Officer.
"Person with a Disability" means an individual who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. "Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
"Probable Cause" means reasonable grounds to believe a violation of policy has occurred, based upon a preponderance of credible evidence.
"Report of Determinations" means the report prepared by the Appeals Committee after a hearing has been conducted. It summarizes the hearing and makes a determination whether the findings of probable cause and recommendations for disciplinary action, contained in the Report of Findings, were reasonable and based on the preponderance of the evidence.
"Report of Findings" means the report prepared by the Affirmative Action Officer or designee which summarizes the investigation of a formal complaint of discrimination, concludes whether there is probable cause to conclude prohibited discrimination occurred, and, if so, makes recommendations for corrective and/or disciplinary action.
"Respondent" means the individual against whom a formal complaint of discrimination is filed.
"Staff" means any individual who is employed by Montana State University-Northern, including graduate research assistants but excluding student labor.
"Student," for the purpose of this policy only, means any individual enrolled in a course or program of study at MSU-Northern, including student labor.
The procedures described in this document apply to all complaints of discrimination alleging violations of federal and state civil rights laws and the Montana State University-Northern Equal Opportunity/ Affirmative Action Policy (see policy 1001.1), including complaints of sexual harassment and harassment based on race, color, national origin, sexual orientation or preference, age, religion, or disability. The University has adopted these procedures to provide:
- impartial investigation of complaints alleging prohibited discrimination,
- appropriate due process for any individual against whom a formal complaint of prohibited discrimination is made, and
- prompt and equitable resolution of complaints when prohibited discrimination has been confirmed.
In all cases, Montana State University-Northern seeks to fully meet its dual obligations to stop or prevent discrimination and to provide appropriate due process for any person against whom a complaint of prohibited discrimination is made. These complaint procedures are internal to the University. Individuals may file either informal or formal complaints as outlined below. The Affirmative Action Officer or designee will not investigate or take official action on anonymous complaints.
C. Jurisdiction of the Affirmative Action Officer
The jurisdiction of the Affirmative Action Officer or designee is specifically limited to issues of discrimination. The Officer has sole and exclusive responsibility to investigate and recommend remediation of any complaint of discrimination that is filed with him/her by an individual or referred to it by a university official, agent or committee.
The jurisdiction of the Officer is limited to complaints arising under the University's Equal Opportunity/Affirmative Action Policy (1001.1) or any state or federal nondiscrimination law or regulation that imposes non-discrimination requirements.
D. Complaintant's Right to File with Agencies Outside the University
Complainants have the right to file charges of discrimination directly with a state or federal government without filing a formal complaint with the University. The state agency where such complaints may be brought is the:
Montana Human Rights Commission
P.O. Box 1728
Helena, MT 59624-1728
Physical Address is:
1625 11th Avenue, 2nd floor
Helena, MT 59601
Generally, a complaint must be filed with the Montana Human Rights Commission within 180 calendar days of the last act of discrimination, although this deadline may be extended to 300 calendar days if a person has filed a complaint under MSU-Northern policies and procedures.
Depending on the nature of the allegations, complaints of discrimination may also be filed with the Equal Employment Opportunity Commission (EEOC) or the Office of Civil Rights (OCR). Information about filing with these agencies may be obtained from the Montana Human Rights Commission or directly from the EEOC or OCR.
E. University's Right to Suspend or Terminate Co-Filed Complaints
If an individual files a complaint according to these procedures and simultaneously or subsequently files a similar or inclusive complaint with a government agency, state or district court, the University may elect to suspend or terminate its proceedings pending a decision from or a negotiation with the court or agency.
F. University's Right to Initiate an Investigation
Since the University may be liable for harassment or discrimination about what it knows or should have known, the University has the right to investigate a complaint at any time when, in the opinion of the Affirmative Action Officer or designee or Chancellor, such action is warranted. The Chancellor may initiate a formal investigation by issuing a written memorandum to the Affirmative Action Officer or designee specifying the charges or allegations to be investigated. The investigation shall follow the procedures for the conduct of a formal investigation outlined below with such modifications as may be appropriate under the circumstances.
The time frames and deadlines identified in these procedures will be met to the institution's best ability. However, circumstances may require that some time lines be extended. Notice of such extension shall be made in writing to all parties.
H. Corrective Action
Corrective action means the administrative steps taken by the University to remedy a complained-of situation. The purposes of corrective action are to:
- prevent serious and immediate harm to the complainant and others,
- prevent retaliation against the complainant, respondent or any witnesses,
- end discriminatory behavior,
- prevent its recurrence, and
- provide appropriate training in issues related to discrimination.
At any time during the formal or informal complaint procedures described herein, the Affirmative Action Officer or designee and/or other appropriate administrator may take appropriate corrective action to ensure that these purposes are achieved. Respondents may not appeal corrective actions. Corrective action may include, but shall not be limited to:
- altering the complainant's work or academic environment,
- conducting workshops on discrimination or harassment for the unit, division or department,
- meeting with the respondent and her or his supervisor(s) to discuss ways in which the complained-of behavior can be changed,
- mediating or conciliating the complaint;
- assisting the complainant in taking steps which may stop the behavior, including writing a letter to the harasser,
- reassigning or transferring one or more of the parties to another work location or reporting relationship,
- moving students to different rooms in the residence halls,
- transferring students or faculty to different course sections,
- assigning alternate advisors or evaluators,
- issuing an informal, verbal reprimand,
- suspending an employee with pay, and
- providing retroactive relief for the complainant.
The complainant shall be informed of any corrective action undertaken.
The Affirmative Action Officer or designee may encourage and facilitate informal resolution of a complaint at any time, without making a formal finding regarding allegations of discrimination.
After issuing the Report of Findings, if there are unresolved issues between the parties, the Affirmative Action Officer or designee may, with the agreement of both parties, attempt conciliation.
J. Informal Complaints
A person with concerns about discrimination may meet informally with the Affirmative Action Officer or designee to discuss options available for dealing with those concerns. Notes will be taken of the meeting with the complainant and strategies for eliminating the discrimination will be discussed.
The Affirmative Action Officer or designee will review formal complaint procedures with the complainant and give him or her a complete copy of these procedures. The complainant may elect to file a formal written complaint at any time during the informal complaint resolution process.
- Deadlines for Filing Informal Complaints
Informal complaints or concerns may be brought to the attention of the Affirmative Action Officer or designee at any time. Nonetheless, complainants are encouraged to bring concerns about discrimination to the office as soon as possible after the incident in question.
- Disciplinary and Corrective Action
The University shall not take disciplinary action against a respondent as the result of an informal complaint of discrimination.
The University may take corrective action as the result of an informal complaint to stop discriminatory conduct and prevent its reoccurrence.
The Affirmative Action Officer or designee may encourage and facilitate resolution of informal complaints when appropriate and may notify the respondent's supervisor or unit administrator if necessary to facilitate resolution of the matter.
- Responsibilities of University Faculty and Staff
Often individuals who experience discrimination and harassment will discuss their experiences with a trusted advisor, teacher, staff member, or administrator rather than with the Affirmative Action Officer or designee. Department chairs/deans are especially likely to receive such complaints and should be aware of their responsibility to deal with such complaints in a manner consistent with these procedures.
Complaints of discrimination are not like academic complaints and shall not be referred back to the offending party. Instead, any individual receiving a complaint of discrimination or harassment should:
- Take the report seriously and keep a written record of the contact.
- Refer the complainant to the Affirmative Action Officer or designee.
- Respect the complainant's confidentiality.
- Follow up as appropriate, in consultation with the Affirmative Action Officer or designee.
At the complainant's request, the Affirmative Action Officer and/or Investigator shall make every reasonable effort to keep confidential the identity of the complainant, respondent and any witnesses during the informal complaint resolution process.
K. Formal Complaints
A formal complaint is a signed written statement of allegations of discrimination. The allegations are investigated by the Affirmative Action Officer or designee, and a formal Report of Findings is issued by the Affirmative Action Officer or designee. Findings of probable cause that discrimination occurred or University policies and procedures were violated may result in official disciplinary action against the respondent.
A complainant must file a formal written complaint with the Affirmative Action Officer or designee within one hundred twenty (120) calendar days of the last act of alleged discrimination. The Affirmative Action Officer or designee may decide to accept a complaint filed after this deadline if he or she (1) believes the alleged discrimination may be continuing or (2) determines in writing there is good cause to do so.
- Allegations of Discrimination Asserted Within Other Grievance Proceedings
Complaints of discrimination may arise during a proceeding brought before a University administrator, committee or hearing. In such cases, the administrator, committee chair or the presiding officer of the hearing body shall refer the discrimination allegations to the Affirmative Action Officer or designee for an investigation. In such cases, the committee or hearing process shall be suspended until the Affirmative Action investigation is completed and the Report of Findings has been transmitted to the committee or hearing of origin.
If discrimination is alleged in an academic, personnel, retention, promotion or tenure decision, the Affirmative Action Officer or designee shall not make findings as to the merits of the decision. Instead, the findings shall be limited to determining whether the decision was impermissibly influenced by discriminatory considerations or resulted from discriminatory actions.
The complainant and respondent have reasonable expectations of confidentiality in the investigation and hearing of matters subject to this procedure. The Affirmative Action Officer or designee shall keep confidential information learned as a result of the investigation and shall disclose such information only to the complainant, the respondent, potential witnesses, and appropriate supervisors and administrators as necessary to give the respondent fair notice of the charges and to conduct a thorough investigation.
All parties involved in an investigation or hearing, including witnesses, shall keep information concerning the investigation confidential.
An individual involved in the investigation of a formal complaint may waive her or his individual right to confidentiality by disclosing information to others outside the complaint investigation process. However, any individual waiving her or his right to privacy is not free to breach the privacy rights of others. Violations of the confidentiality of other persons involved in a formal complaint, if identified and confirmed, may result in disciplinary or corrective action taken against the offending party.
Information concerning a formal complaint, including any reports and recommendations generated as a result of an investigation, may be released only to the following:
- the complainant and respondent,
- if appropriate, the respondent's and/or complainant's supervisor,
- if appropriate, members of any committee from which the complaint originated,
- the Appeals Committee,
- University officials who have a need to review the report to perform official University business
- attorneys for the complainant and respondent, and
- officials of the Montana University System, the Montana Board of Regents of Higher Education or other duly constituted board, the Montana Human Rights Commission, the EEOC, and officers of state and federal courts.
- Rights and Responsibilities of the Parties
Both parties shall receive a complete copy of these procedures and will be informed of the progress of the investigation.
Both parties have the right to have a non-attorney present or professional assistance at their own expense during interviews with the Investigator.
a. Rights and Duties of the Complainant.
The complainant is responsible for submitting a written complaint that:
- states the specific charge(s) of discrimination,
- describes the alleged discriminatory incident(s),
- identifies witnesses to the alleged violation(s),
- provides documentation in support of the allegations,
- states the relief sought or outcome desired.
The complaint must be dated and signed by the complainant.
The complainant is expected to cooperate with the investigation and be honest and reasonable in pursuing the complaint. A complainant found to have knowingly filed a false complaint may be subject to disciplinary action.
b. Rights and Duties of the Respondent
The respondent shall receive written notice of the complaint. A copy of the complaint will be submitted with the notice, or if too lengthy, the respondent may review it in the investigator's office.
The respondent will have the opportunity to respond to the allegations during an interview with the Investigator.
The respondent is expected to cooperate with the investigation, present documentation on his or her behalf, and identify witnesses to the complained-of incident(s).
- Investigatory Procedures
The investigation officially begins on the effective date of the complaint. Before signing the complaint, the Affirmative Action Officer or designee may limit the complaint to the allegations over which the Affirmative Action office has jurisdiction. The complainant shall be informed in writing of any limitations of the original complaint.
The investigation shall proceed as follows:
- The Investigator shall meet with the complainant to review the complaint, clarify the allegations, and obtain detailed information about the allegations.
- Within five (5) working days of the effective date of the complaint, the Affirmative Action Officer or designee shall notify the respondent of the complaint, the identity of the complainant, and the allegations which will be investigated.
- The Investigator shall collect and review written documentation related to the complaint, interview the complainant and respondent, and identify and interview witnesses.
- The Investigator shall make every reasonable effort to complete the investigation within forty-five (45) working days from the effective date of the complaint. If the investigation is not completed within this time period, the Investigator shall notify the parties in writing explaining the reasons the investigation could not be completed during this time.
- The Investigator shall prepare a written report of the investigation and submit this, with documentation and evidence, to the Affirmative Action Officer.
- Report of Findings
The Affirmative Action Officer or designee shall receive the written report of the investigation, review applicable laws and regulations, and prepare a Report of Findings within thirty (30) working days of receiving the investigation report. If the Affirmative Action Officer or designee cannot complete the Report within the thirty (30) day period, he or she shall notify the parties in writing of the reason(s) for the delay.
The Report of Findings will:
- present the contentions of the parties,
- summarize the testimony of witnesses, if any,
- state the findings of fact,
- cite applicable laws,
- find whether there is probable cause to believe that prohibited discrimination occurred, and
- if appropriate, make recommendations for disciplinary and/or corrective action.
The Affirmative Action Officer or designee will send the Report of Findings to the complainant and the respondent. If the respondent does not appeal the findings within ten (10) working days, in accordance with Section L. of these procedures, the Affirmative Action Officer or designee may then release the Report of Findings to the respondent's supervisor and/or other appropriate University administrator with jurisdiction over the respondent.
The Affirmative Action Officer or designee shall not release the Report of Findings to parties other than those listed in Section K.2., without the written authorization of the complainant and respondent.
If any party releases the Report of Findings to any unauthorized person, that action may result in disciplinary or corrective action taken against the party releasing the document.
a. Standard of Proof
The determination of whether prohibited discrimination has occurred will be made on a case-by-case basis. A finding of probable cause shall be based on the preponderance of credible evidence in relation to applicable laws, administrative guidelines, and/or relevant court holdings and interpretations.
b. Transmission to the Committee of Origin
If the complaint originated through some other campus procedure under section K.1., the Report of Findings shall be transmitted to the committee from which it originated. At the discretion of the committee chair, the Affirmative Action Officer or designee may be called before the committee to discuss the Report of Findings.
- Findings of "No Probable Cause"
A finding of "no probable cause" means either that the preponderance of the evidence failed to support a belief that unlawful discrimination occurred or there was insufficient evidence to make an assessment as to whether unlawful discrimination occurred.
If the finding is "no probable cause," the case shall be closed. If the complainant disputes the finding of "no probable cause," he or she may file a complaint with an outside agency, such as the Montana Human Rights Commission, the Equal Employment Opportunity Commission, other appropriate state or federal administrative agency, or state or federal court.
- Findings of "Probable Cause"
A finding of "probable cause" means that the preponderance of the evidence supports a belief that impermissible discrimination occurred.
If there is a finding of "probable cause" and the respondent does not request a hearing, the case shall be closed.
A respondent who disagrees with the finding of "probable cause" may request a hearing before the Appeals Committee by submitting a written request for a hearing to the Chancellor within ten (10) working days of receiving the Report of Findings. (See Section L.)
- Disciplinary Action
Disciplinary action may result from findings of "probable cause." Disciplinary action may be taken by the appropriate administrator or supervisor after due consideration of the recommendations of the Report of Findings.
If the respondent appeals the Report of Findings, the respondent's supervisor shall delay taking disciplinary action until notified by the Chancellor of his or her decision concerning the determinations of the Appeals Committee (see Sections L.7. and L.9.).
A respondent may appeal disciplinary action taken against her or him through the grievance procedures applicable to her or his employment status, status as a student, or status as an applicant
L. Appeals Procedures
A respondent who believes that the investigation was conducted not in accordance with these procedures or thinks that the findings of probable cause were not based on the preponderance of the evidence shall appeal to the Appeals Committee. This Committee serves as the impartial body empowered to (1) review the Report of Findings, (2) determine if its findings of fact and conclusions were supported by a preponderance of substantial, credible evidence and (3) ascertain if the recommendations for corrective and disciplinary action are reasonable.
- Appeals Committee
The specific responsibilities of the Appeals Committee are to:
- Read and review the Report of Findings.
- Conduct a formal discrimination grievance hearing according to the procedures outlined in Section L.6.
- Use the discrimination grievance hearing to examine the evidence and documentation obtained through the investigation and consider testimony from the complainant, the respondent, and witnesses.
- Determine if the respondent's actions constituted impermissible discrimination or violation of University policy.
- Determine the appropriateness of the recommendations for disciplinary or corrective action made in the Report of Findings and/or make new or additional recommendations for disciplinary or corrective action.
- Issue a Report of Determinations according to Section L.7.
The jurisdiction of the Appeals Committee is specifically limited to questions of discrimination and to making determinations as to the accuracy and reasonableness of the Report of Findings. Neither the hearing, the Committee's Report of Determinations, nor its recommendations shall address any substantive matters other than those directly related to the allegations of discrimination, the investigation, and the Report of Findings.
If discrimination has been alleged in a personnel, promotion or tenure decision, the Appeals Committee shall not rule on the merits of that decision. Instead, the Committee's inquiry shall be limited to determining whether the decision was impermissibly influenced by discriminatory considerations or resulted from discriminatory actions.
Committee is not a standing committee but is selected on a case-by-case basis. It shall be composed of no fewer than seven voting members including:
- The Chair of the committee, and
- One male and one female representative from each of the three recognized employment categories of: (a.) faculty, (b.) professional staff, and (c.) classified staff.
If a student is involved in the complaint as the complainant or the respondent, one female and one male student shall be appointed to the Committee, making a total membership of nine voting members.
c. Appointment and Term of Service
The Chancellor shall select members for the Appeals Committee from recommendations submitted by the Academic Senate for faculty, and the American Federation of State, County, and Municipal Employees (AFSCME) President for classified employees. The Chancellor will also select two members from the Professional Staff. When student membership is required, recommendations shall be made by the Associated Students of Northern. The Chancellor will appoint the Chair of the Appeals Committee.
The Appeals Committee shall be disbanded upon the completion of the particular complaint for which it was convened.
d. Challenges for Cause
The Chancellor shall notify the Affirmative Action Officer or designee, original complainant and respondent-grievant of the persons appointed to the Appeals Committee within fifteen (15) working days of the receipt of the request for hearing.
The complainant or the respondent may challenge the members of the Committee for cause by submitting a written statement to the Chancellor within three (3) working days of receipt of the list of Committee members. The statement shall state the specific reasons for challenging the appointment of any member. The Chancellor shall have sole and absolute authority to rule as to challenges for cause and may elect to replace a challenged member if cause is shown.
e. Orientation and Training
Prior to the hearing, members of the Appeals Committee shall receive training on the issues of discrimination, harassment, sexual harassment and/or sexual intimidation relevant to the complaint.
f. Appointment of a Hearing Officer
The University may elect to hire a hearing officer to conduct the hearing. The hearing officer shall be a non-voting member of the Committee and may function as the Chair's designee to perform certain functions defined in subsequent sections of this policy.
- Role of the Affirmative Action Officer
Since the respondent is appealing the Report of Findings written by the Affirmative Action Officer or designee, the role of the Affirmative Action Officer or designee, in relation to the appeals process, is to present the evidence that led to the conclusions reached in the Report of Findings.
- Pre-Hearing Conference
The Chair of the Appeals Committee or the hearing officer may convene a pre-hearing conference. The purposes of the pre-hearing conference are to:
- Narrow and define the specific sections or aspects of the Report of Findings to be considered.
- Identify and list any and all witnesses for the hearing. No witness may be called at the hearing who has not been identified at the pre-hearing conference. Limitations on the number of witnesses may be established by the Chair or hearing officer during the pre-hearing conference.
- Identify and list any and all documents and evidence, in addition to the Report of Findings and its exhibits and enclosures, to be presented at the hearing. No documents may be submitted at the hearing which were not identified at and exchanged as a result of the pre-hearing conference.
- Provide for a pre-hearing exchange (between all parties) of any documents or other information to be presented at the hearing.
- Set a time and place for the formal hearing.
- Authority of the Chair or the Hearing Officer
The Chair of the Appeals Committee or the hearing officer has the responsibility to ensure that the pre-hearing conference, the hearing, and any other associated activities are conducted in as fair, timely, and courteous a manner as possible. He or she may adjourn the hearing or remove any witness, attorney or advisor from attendance at her or his discretion. The Chair or the hearing officer may also limit or exclude documentation or testimony that falls outside the purview of the Committee.
a. Authority to Dismiss
The Chair or the hearing officer has the authority to dismiss the case if the respondent fails to cooperate with the process or to participate in the pre-hearing conference.
If the original complainant fails to cooperate with the appeals process, the Chair or the hearing officer may either dismiss the case or order the Appeals Committee to hear the case and reach a decision based on the available evidence.
b. Authority to Postpone
With the concurrence of a majority of the members of the Appeals Committee, the Chair or the hearing officer may decide to:
- Set aside the hearing date for any period up to ten (10) days for additional investigation,
- Obtain additional witnesses or evidence or schedule a settlement conference with the complainant and any other appropriate parties for purposes of settlement of the appeal without a hearing, or
- Extend the hearing or any hearing related deadline for good cause.
c. Authority to Close the Hearing
The Chair or the hearing officer shall determine whether the hearing will be an "open meeting." Generally, because of the privacy interests of the complainant, respondent and/or witnesses, hearings are closed to the public.
- Rights and Responsibilities of the Parties
a. Rights of the Respondent
A respondent who has filed an appeal of the Report of Findings has the following rights relative to the hearing :
- The right to be present during the hearing.
- The right to give testimony and present evidence on her or his own behalf.
- The right to respond to any testimony or evidence presented in the hearing and to question witnesses.
- The right to have an attorney or advisor present during the hearing, at his or her own expense. Legal counsel for the respondent may not participate in the proceedings of the hearing and shall be present only to advise the respondent.
- The right to receive a copy of the Report of Determinations.
b. Rights of the Original Complainant
The person who brought the original complaint of discrimination has the following rights relative to the hearing:
- The right to be present during the hearing.
- The right to give testimony and present evidence.
- The right to respond to any testimony or evidence presented in the hearing.
- The right to have an attorney or advisor present during the hearing, at his or her own expense. Legal counsel for the original complainant may not participate in the proceedings of the hearing and shall be present only to advise the original complainant.
- The right to receive a copy of the Report of Determinations.
The members of the Appeals Committee, the respondent, the original complainant, and any other parties, witnesses or other participants in the process shall maintain the confidentiality of all matters pertaining to the hearing. Failure to do so, if identified and confirmed, may result in disciplinary action.
- Conduct of the Hearing
The hearing will be conducted within twenty (20) working days of the appointment of the Committee. The Chair or hearing officer is responsible for conducting the hearing. The decisions of the Chair or hearing officer regarding procedural and evidentiary questions are final. The Chair or hearing officer may consult with the members of the Committee and the MSU-Northern Affirmative Action Officer and/or the MSU-Northern Legal Counsel as necessary to rule on issues which arise during the proceedings. The hearing shall proceed as follows:
- The respondent and the Affirmative Action Officer shall have the opportunity to make opening statements.
- The Affirmative Action Officer shall summarize the complaint, the investigation and the Report of Findings.
- The respondent shall present his/her case following the presentation of the Affirmative Action Officer.
- The Affirmative Action Officer and the respondent shall each be given a reasonable opportunity to present their cases, including presenting testimony of witnesses and documentary evidence. However, the Chair or hearing officer may preclude or limit the presentation of duplicative, irrelevant or unnecessary evidence or testimony.
- The Affirmative Action Officer and respondent shall each have the opportunity to question the other party's witnesses.
- Every reasonable effort will be made to elicit and consider the most reliable evidence.
- Hearsay evidence is generally not admissible.
- Witnesses are generally expected to be present to give testimony. However, sworn written statements may be admitted in lieu of testimony, if the witness is not available and the statement is necessary to a resolution of the matter.
- The decision of the Chair or hearing officer regarding questions of admissibility of evidence shall be final.
- The Chair or hearing officer may grant adjournments as necessary.
- The Affirmative Action Officer and respondent may make closing statements in the order specified by the Chair or hearing officer.
- An audio recording of the proceedings shall be made. The Chair or hearing officer shall retain that recording and all written or other physical evidence for the record at a location of his/her choice until the Appeals Committee's Report of Determinations is transmitted to the Chancellor.
- The Affirmative Action Officer or designee and/or the respondent may request that the audio tape be transcribed. The requestingparty shall pay the costs of the transcription.
- All written communications to and from the Chair or hearing officer shall be copied and sent to all parties.
- Determinations of the Appeals Committee/Report of Determinations
The Appeals Committee shall prepare a Report of Determinations on the questions brought before them. The Report must be supported by a majority of the committee members; dissenting opinions shall be summarized in the Report.
Within ten (10) working days of the conclusion of the hearing, the Appeals Committee shall submit to the Chancellor its determinations as to probable cause of discrimination. The Report of Determinations shall be signed by each member of the Appeals Committee who supports its conclusions. Dissenting opinions submitted with the report must also be signed by the appropriate committee member(s).
The Report of Determinations shall contain the following:
- A statement of the facts, findings, conclusions, or recommendations contested by the respondent.
- A summary of the evidence presented by the Affirmative Action Officer and the respondent.
- A determination of whether or not the evidence presented at the hearing substantiated the Report of Findings and conclusions of probable cause.
- Recommendations regarding the redress of the complaint, including recommendations as to disciplinary or corrective actions.
- Transmission of the Report of Determinations to the Committee of Origin. If the complaint of discrimination was initiated within a procedure under Section K.1., the Report of Determinations shall be forwarded to the committee from which the complaint originated. That committee shall use the Report of Determinations to inform its deliberations but shall not re-hear the allegations of discrimination or the findings of probable cause. The committee shall complete its proceedings in light of the Report of Determinations, and submit its report to the Chancellor or appropriate administrator.
- Transmission of the Report of Determinations to the Chancellor. If the allegations of discrimination did not originate within another grievance or appeal, the Report of Determinations of the Appeals Committee may be transmitted directly to the Chancellor.
- Transmission of the Report of Determinations to the Parties. The Report of Determinations shall be sent to the Affirmative Action Officer or designee, the original complainant, and the respondent. As appropriate, the Chancellor may share the Report with University officials who have a need to review it in order to conduct official University business.
- Record of the Hearing
The record of the hearing for the appeal shall consist of the audio tape recording of the hearing; all evidence or exhibits presented at the hearing; all communications to or from the Chair or the hearing officer in reference to the hearing; and any other graphic, written, or tape recorded information relevant to the grievance hearing and its procedures. The Chair or the hearing officer shall transmit all records pertaining to the hearing, including the audio recording, to the Chancellor when he or she transmits the Report of Determinations.
- Responsibilities of the Chancellor
The Chancellor shall receive the Appeals Committee's Report of Determinations and may:
a. adopt it as the final report of the University,
b. reject the determinations and/or recommendations, or
c. modify the conclusions and/or recommendations.
The Chancellor shall issue the final decision of the University within ten (10) working days of receipt of the Report of Determinations from the Appeals Committee. A copy of the Chancellor's decision will be sent to the complainant, the respondent and the Affirmative Action Officer or designee.
If the Chancellor believes, based on the preponderance of the evidence, that the respondent engaged in prohibited discrimination, he or she shall forward the report to the respondent's supervisor or other university official for appropriate disciplinary or corrective action.
If the Chancellor believes, based on the preponderance of the evidence, that there is no probable cause for the complaint, the complainant may exercise his/her rights under Section D.
M. Disciplinary Action
Disciplinary action means any steps taken by a respondent's supervisor to reprimand respondent for inappropriate or impermissible behavior which has violated University policy or to preclude or prevent further acts of discrimination.
In cases where probable cause of discrimination by an employee or student has been identified and confirmed through an investigation of a formal complaint, the appropriate supervisor or University administrator may elect to take disciplinary action against the employee or student.
Discipline of an employee is the responsibility of the employee's supervisor and shall be appropriate to the nature and severity of the infraction. Discipline of a student or person not employed by the University shall be the responsibility of the appropriate University administrator, disciplinary board, or committee.
Disciplinary actions may include, but are not limited to:
- permanent reassignment or relocation,
- formal reprimand,
- formal warning,
- appearance before a student conduct board,
- reduction in pay,
- suspension, and/or
If more than one individual is involved in the same complaint, disciplinary action may differ from person to person depending on the role of the person in the discriminatory conduct, the severity of an individual's behavior, the frequency of the misconduct, and the nature of the evidence of misconduct.
An individual may be subject to both corrective and disciplinary action for the same prohibited conduct. Please refer to sections A., H., and M. of this policy for an explanation of those actions.
The supervisor or administrator shall inform the Affirmative Action Officer or designee of any disciplinary action that is imposed. The Affirmative Action Officer or designee shall inform the original complainant, in general, of the corrective and/or disciplinary actions taken by the University.
An individual subject to disciplinary action may appeal that action by using the grievance process appropriate to his or her employment status, according to the deadlines and procedures established for that process. In appeals of disciplinary action, the grievance hearing body shall focus only on the disciplinary action; it shall not reinvestigate or rehear issues pertaining to the findings of discrimination. Thus, the body shall accept the findings of fact contained in the Report of Findings, the Report of Determinations, and/or the Chancellor's Report and address only the appropriateness of the proposed disciplinary action.
Corrective action may not be appealed.
N. Right to Appeal
- Any grievant may, within 30 days after receipt of the Chancellor's response to the recommendation of the Appeals Committee, appeal the Chancellor's decision to the President of Montana State University in Bozeman.
The Chancellor shall be notified in writing by the grievant that the letter of appeal has been forwarded to the President of Montana State University in Bozeman. Upon receipt of notice of appeal, the Chancellor shall forward to the President of Montana State University in Bozeman all documents involved in the proceedings.
- If the complainant is dissatisfied with the corrective and/or disciplinary action taken by the University, he or she may file a complaint with an outside agency, such as the Montana Human Rights Commission, the Equal Employment Opportunity Commission, other appropriate state or federal administrative agency, or state or federal court.