Policy 70: Complaint Resolution

NOTE: The following procedures supplement Personnel Policy 70. Each section should be read with the related policy section  (PDF) (At Your Service).

A. GENERAL

It is in the interest of everyone--staff members and the University--to resolve differences as quickly and as informally as possible. Employees shall attempt to resolve problems through informal discussion with their supervisors. The resources of the Personnel Office Employee Relations Unit are also available. In addition, the Staff Ombudsperson, and the Title IX Coordinator are available. Contacts with these offices are separate from the Complaint Resolution process. The decision of one or more parties to use or to not use the Staff Ombudsperson's or the Title IX Coordinator's services, the discussions of the parties involved in these processes, or resolutions proposed during this process, may not be raised or cited in the formal grievance process.

C. ELIGIBILITY

Complaints regarding alleged violations of Policy 60: Layoff and Reduction in Time, section F2, "Preference for Reemployment," are only eligible for review under this policy if the employee was denied reemployment for a position that is covered by these policies.

D. TIMELINESS

Efforts to resolve potential complaints informally shall not constitute an extension of the time limits to file a formal complaint under this policy or to appeal a decision to the next step in the process.

The employee and the department head or designee may mutually agree to extend the 30 calendar day time limit for filing a grievance. The employee must submit the extension to the Grievance Coordinator before the original time limit to file the formal complaint expires. The extension must be in writing, it must be signed by both parties, and it must include the date of the precipitating incident, a description of the management action in dispute, and the period of the extension. The extension may not exceed 30 calendar days. The parties may mutually agree to further extensions, which must be submitted in writing to the Grievance Coordinator prior to the expiration date of the original extension.

Time limits which fall on a Saturday, Sunday, or University holiday are extended to the next business day.

E. APPEAL

The Director of Human Resources is the campus official responsible for administering this policy. The Grievance Coordinator is responsible for processing complaints filed under this policy. The Grievance Coordinator may extend the timeframes identified in this section.

The Grievance Coordinator will determine whether the complaint meets the eligibility criteria stated in sections B, C, D, and F of Policy 70. Within 10 calendar days of the receipt of the complaint in the Personnel Office, the Grievance Coordinator will:

1. Forward complaints determined eligible for processing to the department head. A copy of the complaint form indicating permissible levels of review shall be sent to the complainant and his/he representative with proof(s) of service; or,
2. Return complaints determined ineligible for processing to the complainant and his/her representative with a written statement of the reasons for the rejection with a proof(s) of service. Copies of these documents shall be sent to the department head
   1. The complainant may either revise and resubmit the complaint or appeal the Grievance Coordinator's decision to the Director of Human Resources. In either case, the revised complaint or appeal for reconsideration must be in writing and must be received by the Personnel Office within 10 calendar days of the date of the rejection.
   2. The campus decision regarding eligibility for processing shall be issued to the complainant and his/her representative within 10 calendar days of the date the revised complaint or the appeal is received in the Personnel Office with proof(s)
      of service. Copies of the documents shall be sent to the department head.
   3. If the complaint is rejected in whole or in part, the campus decision may be appealed to the Assistant Vice President -- Human Resources, Office of the President. The appeal shall be received within 20 calendar days of the date of the campus decision. The appeal shall be in writing and a copy of the appeal shall be sent to the Grievance Coordinator by the complainant.
   4. The Office of the President shall notify the complainant and the campus of its decision within 10 calendar days of receipt of the appeal in its office. The decision of the Office of the President Human Resources Office shall be final.
   5. Revised or appealed complaints determined to be eligible for review shall be forwarded to the department head within 10 days of the decision; a copy of the letter forwarding the complaint to the department head will be sent to the complainant and his/her representative with proof(s) of service.

F. REVIEW PROCESS

Complaints must be filed on the official Complaint form  (Word). Forms are available in the Personnel Office.

1. In addition to the requirements stated in Policy 70F: Review Process, Step 1, the complainant must:
2. State the date(s) of the event or action giving rise to the complaint or the date that he/she became aware of the event or action giving rise to the complaint.
3. List the name, address and phone number of his/her representative, if any.
4. List the dates of attempted informal resolution, except as provided in Policy 70D: Sexual Harassment Complaint Resolution.
5. Sign the complaint form.

The complaint and extensions requested by complainant may be filed:

1. In person: 2199 Addison St., Room 192 (University Hall), Berkeley, CA
2. By mail: ATTN: Grievance Coordinator, 2199 Addison St., Room 192 (University Hall), Berkeley, CA 94720-3540
3. By fax: ATTN: Grievance Coordinator at (510) 642-2888

Note: The complaint will not be processed until a copy with an original signature is received by the Grievance Coordinator. If the copy with original signature is not received within 5 calendar days from the original filing deadline, the complaint will be considered withdrawn.

General Provisions

1. Extensions of Timeframes
   1. A complainant may request an extension to appeal a complaint to Step II or Step III prior to the deadline for the appeal. The written request must be sent to the Grievance Coordinator stating the reason(s) for the extension and the proposed new deadline. The Grievance Coordinator, in consultation with the control unit head or department head, as appropriate, shall either approve or disapprove the extension. The decision of the Grievance Coordinator shall be in writing and shall be sent to the complainant and his/her representative with proofs of service and to the control unit head or the department head as appropriate.
   2. The timeframes for management actions outlined in Steps I, II and III of these procedures, including the timeframes for the submission of factfinding reports, may be extended by the department head or designee, the control unit head or designee, or the factfinder, as appropriate. The extension must be in writing, state the reason for the extension, and state the new deadline. Copies of the extension must be sent to the complainant and his/her representative and to the Grievance Coordinator. Extensions by a designated Step II reviewer or a factfinder shall also be sent to the control unit head.
2. Appeals not received within the time limits outlined below or within the timeframe of the extension will be considered resolved on the basis of the last University response.
3. Settlement offers made during informal attempts at resolution or during the formal steps of the complaint resolution process shall not be introduced as evidence in any subsequent steps of the procedure.
4. Materials generated as a result of the filing of a complaint, including the complaint itself, shall be maintained by the University in a file separate from the employee's personnel file. The official complaint file shall be maintained by the Grievance Coordinator.
5. Individual complaints of two or more employees may be combined when the complaints arise from the same action, as deemed appropriate by the Grievance Coordinator.
6. The University may raise the issue of timeliness of the complaint or the appropriateness of a complaint to be heard at a specific step in the procedure at any time during the complaint resolution process.
7. Complainants may be represented by one individual at any or all steps of this procedure. Complainants may be represented by persons not affiliated with the University. Within the University, however, supervisors can only represent and be represented by supervisors, managers can only represent and be represented by managers, and confidential employees can only represent and be represented byconfidential employees.
8. The complainant and/or the complainant's representative who are University employees shall be in a without-loss-of-straight-time-pay status for time spent in meetings convened by the University and in hearings and for reasonable travel time provided they are scheduled to work during that period and have the prior approval of their supervisor(s). When complaints of multiple individuals are combined, only one complainant and one representative shall be in a without-loss-of-straight-time-pay status.
9. Complaints of employees who voluntarily terminate their employment shall be considered immediately withdrawn.
10. Step I may be waived as described in Policy 70D: Sexual Harassment Complaint Resolution.

Step I

1. The department head may elect to review the complaint himself or herself or may designate a Step I reviewer.
2. The Step I reviewer may, at his/her discretion, meet with the complainant and his/her representative, if any, to discuss the complaint.
3. The Step I reviewer shall issue a response to the complaint within 15 calendar days of the date the complaint was forwarded to him/her. The response shall be in writing and shall be sent with a copy of the complaint form to the complainant and his/her representative with proof(s) of service and to the Grievance Coordinator.

Step II

1. If the Step I response is not issued within the time limits, including extensions if any, or if the complaint is not resolved at Step I, the complainant may appeal the decision to Step II.
2. The appeal to Step II must be received by the Grievance Coordinator within 10 calendar days of the date the Step I response was given or due, whichever is earlier.
3. The appeal must be on the complaint form. The complainant must state the reason(s) for the appeal and identify the unresolved issues.
4. Factfinding Options
   1. Professional and Support Staff Employees may request the appointment of a factfinder to review the complaint if it is not reviewable at Step III. (See Policy 70F Step III a.-m.) Such request must be made at the time the complaint is filed at Step II.
   2. Managers and Senior Professional Employees may request review of alleged violations of the policies listed in Policy 70F Step III2 and may request evidentiary factfinding. Such requests must be made at the time the complaint is filed at Step II.
5. The Grievance Coordinator shall forward the complaint to the appropriate control unit head within 10 calendar days of receipt of the appeal in the Personnel Office. A copy of the letter forwarding the complaint will be sent to the complainant and his/her representative with proof(s) of service.
6. The control unit head may elect to either review the complaint himself/herself or designate a Step II reviewer. Such designation must be made within 10 calendar days of receipt of the complaint in the control unit head's office and it must be in writing. Copies of the letter designating a Step II reviewer and forwarding the complaint shall be sent to the complainant and his/her representative with proof(s) of service and to the Grievance Coordinator.
7. Complaints--No Factfinding
   1. The Step II reviewer will issue a written response to the complaint within 15 calendar days of the date the complaint was forwarded to him/her. The Step II reviewer will send the response with a copy of the complaint form to the complainant and his/her representative with proof(s) of service and send copies of these documents to the Grievance Coordinator.
   2. For complaints ineligible for Step III review, the Step II decision shall be final.
8. Complaints--Factfinding-Professional and Support Staff Employees
   1. Within 10 calendar days of receipt of the complaint, the control unit head will appoint a factfinder. A copy of the letter appointing the factfinder and forwarding copies of the complaint shall be sent to the employee and his/her representative with proof(s) of service with copies to the Grievance Coordinator.
   2. The factfinder shall investigate the grievance and prepare a written report which shall be sent to the Step II reviewer within 30 calendar days of the date of his/her appointment letter. The factfinder's report should contain the following information:
      1. A clear statement of the issues under review
      2. The alleged violations of policy, if any
      3. The positions of the parties
      4. A brief summary of the information received
      5. Findings of fact
      6. Policy violations, if any
   3. The Step II reviewer will issue a written response to the complaint within 15 calendar days of the date the factfinding report was sent to him/her. The Step II reviewer will attach a copy of the complaint form and a copy of the factfinder's report to the Step II response. The documents shall be sent to the complainant and his/her representative with proof(s) of service with copies to the Grievance Coordinator.
   4. The Step II decision shall be final.
9. Complaints--Factfinding-Managers and Senior Professional Employees
   1. Within 10 calendar days of receipt of the complaint, the control unit head will appoint a factfinder from outside the department where the alleged action was taken. A copy of the letter appointing the factfinder and forwarding copies of the complaint shall be sent to the employee and his/her representative with proof(s) of service with copies to the Grievance Coordinator.
   2. The factfinder shall review the written statement of the complainant and the written responses, if any.
   3. Evidentiary Factfinding.
      At the request of either the complainant or management, or at the factfinder's own discretion, the factfinder shall conduct an evidentiary factfinding. The employee and the manager shall have the right to:
      1. Appear personally before the factfinder
      2. Present evidence
      3. Be present when witnesses testify, and examine and cross-examine witnesses
      4. Be represented by counsel or a person of his or her own choosing
      5. Make oral or submit written arguments in support of his or her position

      Within 15 calendar days of the factfinder's selection, the evidentiary factfinding shall be scheduled. The Grievance Coordinator shall be responsible for the scheduling.

   4. The factfinder shall determine the admissibility of evidence. Formal rules of evidence need not be followed, but the factfinder shall give appropriate weight to any objections made.
   5. The factfinder shall prepare a written report which shall be sent to the Step II reviewer within 30 calendar days of the date of the date of his/her appointment letter or within 30 calendar days of the conclusion of the evidentiary factfinding,as appropriate. The factfinder's report should contain the following information:
      1. A clear statement of the issues under review
      2. The positions of the parties
      3. A brief summary of the information received
      4. Findings of fact

      Copies of all documentation received by the factfinder shall be attached to the report. The report shall not contain any recommendations or remedies.

   6. The Step II reviewer will issue a written response to the complaint within 15 calendar days of the date the factfinding report was sent to him/her. The Step II reviewer will attach a copy of the complaint form and a copy of the factfinder's report to the Step II response. The documents shall be sent to the complainant and his/her representative with proof(s) of service with copies to the Grievance Coordinator.
   7. The Step II decision shall be final.

Step III

1. If the Step II response is not issued within the time limits, including extensions if any, or if the complaint is not resolved at Step II, and if the complaint alleges a violation of the policies cited in Policy 70 F Step III1a-m, the complaint may be appealed to Step III.
2. The appeal to Step III must be received by the Grievance Coordinator within 10 calendar days of the date the Step II response was given or due, whichever is earlier. The complainant must indicate on the complaint form whether he/she wishes the complaint reviewed by a University hearing officer or by a non-University hearing officer. The complainant may propose either a University hearing officer (from the approved list) or a non-University hearing officer for the University's consideration.
3. Within 10 calendar days of receipt of the Step III appeal, the Grievance Coordinator shall either:
   1. Notify the complainant and his/her representative of the University's acceptance of the proposed hearing officer; or,
   2. Send a notification to the complainant and his/her representative acknowledging receipt of the appeal and enclose either the University hearing officer list with biographies or a copy of the letter to the American Arbitration Association requesting a list of non-University hearing officers. The notification shall be sent with proof(s) of service.
4. Administrative fees assessed by the American Arbitration Association for the production of non-University hearing officer lists shall be shared equally by the complainant and the University.
5. If the parties do not mutually agree to the selection of a hearing officer, the complainant or his/her representative shall contact the Labor Relations Unit of the Personnel Office within 15 calendar days of the appeal to Step III to schedule a meeting to select a hearing officer. The parties shall alternately strike names from the list until a hearing officer is selected. The hearing officer selection process shall be completed within 30 calendar days of the appeal to Step III. The parties may mutually agree to extend the timeframe for selecting a hearing officer. The extension must be in writing, it must be signed by both parties and it must state the period of the extension. If the complainant or his/her representative fails to participate in the hearing officer selection process or fails to request an extension to select a hearing officer, the complaint shall be considered to be withdrawn and resolved on the basis of the Step II response.
6. The hearing officer shall issue a written decision on the complaint within 30 calendar days of the close of the record of the hearing.
7. The hearing officer may extend the timeframe for his/her decision after consultation with the parties.
8. The hearing officer shall send copies of the decision to the representatives of the parties.
9. The decision of the hearing officer shall be final and binding on the parties.

G. HEARING AND FACTFINDING PROCESSES

Note: The factfinding processes are outlined above in Step II of Section F.

Hearing Process

At the discretion of the Grievance Coordinator, multiple complaints filed by one complainant which relate to a single incident or issue may be combined at Step III.

Unless there is mutual agreement by both parties to modify the scope of the hearing, the issue(s) to be heard by the hearing officer shall be restricted to the issue(s) determined eligible for review by the Grievance Coordinator.

The hearing shall provide an opportunity for the complainant and the University to examine and cross-examine witnesses under oath or affirmation and to submit relevant evidence. Evidence or facts which were known to the complainant but not introduced during Step II shall not be introduced during the hearing process.

In all cases appealed to Step III with the exception of issues regarding actions taken by the University under Policies 62 and 64, the complainant shall have the burden of proceeding first and shall have the burden of proof.

Each party shall be represented by only one person. Other persons may be admitted to the hearing only if mutually agreed to in advance by both parties.

A representative of the University shall also be present to tape record the hearing. Unless the parties mutually agree to having a stenographic record of the hearing, the tape recording of the hearing shall be the official record.

If only one party requests stenographic services and pays for those services and the other party subsequently requests a copy of the transcript, the transcript may be purchased by the requesting party at one-half the cost of the original fees plus the cost of duplication of the transcript(s).

Hearings shall be closed unless the parties mutually agree otherwise in advance in writing.

The arbitrator may receive and consider evidence but shall give proper weight to any objections made.

All documents to be considered by the arbitrator shall be filed at the hearing.

Either or both parties may, at their discretion, file briefs with the hearing officer. The order and time limits of briefing shall be mutually agreed to by the parties or as specified by the hearing officer. Briefing time limits may be extended by mutual agreement of the parties or by order of the hearing officer.

The hearing officer's decision should include a brief description of:

1. Each management action grieved
2. The alleged violation(s) of policy
3. Each issue under submission
4. The positions of the parties
5. The finding(s) of fact and policy violation(s), if any
6. Remedy, if any, for each issue under submission in the complaint

Witnesses who appear at the hearing and are University employees shall be in a without-loss-of-straight-time-pay status for time spent giving testimony and for reasonable travel time.

If the complaint is sustained in whole or in part, the remedy shall not exceed restoring to the complainant the pay, benefits, or rights lost as a result of a violation of these policies less any compensation from any source, including, but not limited to, Workers' Compensation, disability benefits, and Unemployment Insurance benefits. The complainant shall have the duty to make reasonable attempts to mitigate damages.

With regard to a complaint appealed to hearing for which in whole or in part the remedy sought involves back wages or other monetary reimbursement, the University shall not, in providing such a remedy as a result of a hearing officer's award, be required to make any payment of wages or other monetary reimbursement for:

1. Any period of time during which an extension of time limits has been granted at the request of the complainant or his/her representative
2. Any period of time between the date a hearing was originally scheduled to be held and the rescheduled date due to a request from the complainant or his/her representative to postpone or change the scheduled hearing
3. Any period earlier than 30 days prior to the date of the filing of the complaint

The hearing officer shall not award any payment of interest.

Costs related to the cancellation or postponement of a hearing are
borne entirely by the requesting party unless the parties mutually agree otherwise.

FORMS:

• Grievance form  (Word) (Instructions)
• Proof of Service Forms (Instructions):
  • By Mail  (Word)
  • By Personal Delivery  (Word)

RESOURCES:

• Policy Coordinator
• Labor Relations