Equal Opportunity Grievance Procedure
I. General Policies
A. Purposes of the Metropolitan State College of Denver Equal Opportunity Grievance Procedure.
1. To provide a mechanism for prompt and fair internal resolution of complaints alleging unlawful discrimination, harassment, or retaliation; and
2. To satisfy MSCD's Equal Opportunity obligations to the College community.
B. Protection of the Parties.
1. Complaint investigations shall be treated with discretion to protect the privacy of those involved, as permitted by law.
2. Participants in EO grievance proceedings shall treat all information as confidential and shall not discuss the matter with, or provide documents to, anyone except those involved in the process and others as necessary for support and guidance, except as otherwise required by law.
3. Grievants shall not be required during the investigation to confront respondents except as provided in this grievance procedure.
4. The intimidation of a grievant, respondent, or witness during the pendency of an investigation shall constitute a violation of College policies.
5. Neither the respondent nor her or his representatives shall contact the grievant regarding allegations in the grievance unless such contact is arranged by the Equal Opportunity (EO) Office with the permission of the grievant.
C. Records and Documents.
1. Records of all discrimination, harassment, or retaliation complaints shall be maintained and stored for a minimum of three years in the EO office.
2. All information contained in the complaint file is classified as confidential to the extent permitted by law.
3. The EO Director shall provide each party with all documents filed by the other party.
D. Resort to Other Procedures.
1. Those who believe they are victims of unlawful discrimination, harassment, or retaliation, may also initiate outside legal action through private sources or the appropriate state or federal enforcement agencies. It is recommended that where time allows (before applicable statutes of limitations have run out) the internal grievance procedures of the college be used prior to using a grievance system outside the College.
2. The grievant may choose to file a complaint externally at any point before, during, or after the internal college proceedings.
3. If a charge or grievance arising out of the same incident(s) and making similar allegations of unlawful discrimination, harassment, or retaliation has been or is, at any time while an internal grievance is pending, filed outside the institution with an outside Equal Opportunity enforcement agency or in state or federal court, the President may, in her/his discretion, dismiss the internal complaint, refuse to accept an internal grievance, or discontinue any internal grievance proceeding already underway.
E. Retaliation.
1. Retaliation against any person who opposes a practice which is forbidden by College Equal Opportunity Policy, or has filed a complaint, testified, assisted or participated in any manner in an investigative proceeding or hearing under the College Equal Opportunity Policy is prohibited, and may be the subject of a grievance filed under these procedures.
2. Individuals determined to have engaged in retaliation may face disciplinary action up to and including termination of employment or expulsion from the college.
F. Consolidation of Grievances.
1. Multiple grievances, whether filed by the same or different grievants, or naming the same or different respondents, may be consolidated if:
a) the grievances arise from a common nucleus of legally significant facts or one grievance alleges retaliation for filing an earlier, still-pending grievance; and
b) consolidation would not substantially prejudice any grievant or respondent.
2. Grievances may be consolidated at the request of either party or on the initiative of and in the discretion of the EO Director, the chair of the Equal Opportunity Advisory Council, or the chair of the hearing committee, depending on what stage the grievances have reached.
G. Representation.
1. Legal counsel may not act as representatives or advocates of either party except as specifically provided in these procedures.
2. The parties may represent themselves or choose other persons to act as their representatives.
3. The parties may also choose an advocate to provide support and advice during the grievance procedures.
4. The parties may at their own expense retain legal counsel to assist them in preparing their cases, but legal counsel retained by the parties may not participate in or attend any prehearing or posthearing proceedings or participate in the hearing. Legal counsel may, however, attend the hearing for the sole purpose of conferring with and advising the parties during the hearing.
5. The EO Director and the hearing committee may be advised by the College attorney, the Office of State Colleges' Director of Legal Affairs, or by an Assistant Attorney General.
II. Definitions.
A. Day means calendar day.
B. Grievance means a dispute which
1. is filed by a grievant on a form set forth in Appendix 1 to this EO Grievance Procedure; and
2. alleges that a respondent engaged in discrimination, harassment, or retaliation based upon race, color, religion, national origin, sex, age, disability/handicap, Vietnam-era or disabled veteran status, sexual orientation or preference, or on any other basis proscribed by College policies concerning equal opportunity in employment and education.
C. Grievant means
1. any employee or student of the College and any applicant for employment or admission who alleges unlawful discrimination or harassment by an employee or student of the College; or
2. any person who has been threatened with or subjected to retaliation by an employee or student of the College as a result of
a) opposing any unlawful discrimination or harassment;
b) filing a grievance or charge under this procedure;
c) representing a grievant under this procedure; or
d) testifying, assisting, or participating in any manner in an investigation, proceeding, hearing, or lawsuit alleging unlawful discrimination or harassment; and who has filed a grievance under these procedures.
D. Party means a grievant or respondent.
E. Respondent means any student or employee who is alleged to have engaged in unlawful discrimination, harassment, or retaliation.
F. Unlawful means in violation of College policies, which include a requirement that College employees and students comply with federal and state laws prohibiting discrimination in employment and education.
G. Working Day means a day on which the College holds regular class sessions or exams, and excludes Saturdays, Sundays, and College holidays.
III. Time Limits.
A. Grievances should be filed as soon as possible after the event(s) which gives rise to the grievance, but in no event later than 300 days following the earlier of the date of the act or omission giving rise to the grievance or the date on which the grievant knew or reasonably should have known of such act or omission.
B. A grievance alleging acts of discrimination, harassment, or retaliation that began before the 300 day time limit may be filed if the acts are a continuing violation.
1. A continuing violation may exist if at least one of a series of closely related acts that began more than 300 days before a grievance was filed satisfies the time limit; or pervasive, institutionalized, or systemic discriminatory practices or procedures result in at least one discriminatory act that comes within the 300 days.
2. Generally, the present effects or consequences of past discrimination do not constitute a continuing violation.
3. Court decisions interpreting Title VII and other civil rights laws shall guide the EO Director, College Attorney, and Director of Legal Affairs in determining whether a grievance properly alleges a continuing violation.
C. Because jurisdiction under this procedure is restricted to grievances alleging unlawful discrimination, harassment, or retaliation, complaints alleging other infractions of Trustee or College policy or other types of unfair or inequitable treatment will be dismissed and returned to the grievant for disposition under the appropriate grievance or complaint procedure. However, any limitation periods established by those procedures shall be counted as tolled from the date the grievance is incorrectly filed with the Equal Opportunity Office until the date the grievant is notified of its dismissal.
D. In computing any period of time, the day of the act or event from which the designated period begins to run shall not be included in the period. The last day of the period shall be included, unless it is a Saturday, Sunday, legal holiday, vacation day or other nonworking day, in which event the period shall run until the next day which is a working day.
E. When an act must be done by a certain day, it shall be done by the 5:00 p.m. on that day.
F. The EO Director or chairs of the Equal Opportunity Advisory Council or the hearing committee, as appropriate, may extend or shorten the time periods prescribed herein except that provided for the initial filing of a grievance.
IV. Informal Resolution.
A. The EO Director shall designate two present or past Council members, who shall not serve on the hearing committee, to attempt to resolve the grievance through mediation.
B. Mediation is essential to this grievance process, and every effort shall be made to resolve the grievance in this manner.
C. The grievant and respondent may be required by the Chair of the Equal Opportunity Advisory Council or the EO Director to attend a mediation conference.
D. At the mediation conference, the grievant and respondent will be encouraged to explain their positions to one another, clarify any misunderstandings or misconceptions which may have played a part in the matters complained of, and formulate a mutually acceptable resolution.
E. Mediation may begin at any time and may continue after the mediation conference until such time as the President provides a final decision on the matter.
F. If an informal resolution is agreed to by the parties, it shall be reduced to writing, signed by the parties, and forwarded to the EO Director for approval. If approved, the grievance shall be dismissed. If not approved, the parties shall continue informal resolution and the grievance process shall continue.
G. At such time as the EO Director determines that the grievants remedies have been provided, or the issue has otherwise become moot, the EO Director may dismiss the grievance.
V. Initial Procedures.
A. Filing.
1. All EO grievances shall be filed on the EO grievance form set forth in Appendix 1 of this document and shall be filed in the Office of Equal Opportunity.
a) Complaints that are not related to discrimination, retaliation, or harassment should be filed in accordance with the appropriate procedures provided in the Student Handbook, the Trustee's Handbook for Professional Personnel, or the MSCD Handbook for Professional Personnel.
b) Classified personnel may file a complaint under this grievance procedure or the State Personnel grievance procedure. Classified personnel may also contact the Classified Advocacy Program for assistance.
2. The grievance form shall
a) be signed by the grievant;
b) describe in detail the specific incident(s), occurrence(s), decision(s), and other factual matters believed to constitute unlawful discrimination, harassment, or retaliation;
c) name as the respondent(s) the individual, department, committee, or other body whom the grievant believes to have engaged in prohibited behavior; and
d) include a brief statement describing the resolution, relief or action requested by the grievant.
B. Jurisdiction.
1. Jurisdiction under these procedures is met when:
a) the allegations of the grievance meet the definition of a grievance as defined in the EO Grievance Procedure; and
b) the grievance was timely filed; and
c) grievant has complied with section A above.
2. Upon receipt of a signed EO grievance form, the Director of EO in consultation with the College Attorney, the OSCs Director of Legal Affairs, or an Assistant Attorney General shall determine whether the jurisdictional requirements have been met, but may defer the timeliness issue to the hearing committee.
3. The grievance shall be dismissed if the EO Director determines that the EO Office does not have jurisdiction over the grievance.
4. There shall be no appeal of the Directors jurisdiction determination; provided, however, that either party may request the Director to reconsider the decision, and the grievant may pursue the matter in other forums outside the College.
C. EO Office Investigation.
1. If the EO Office assumes jurisdiction over the grievance, the Director shall provide a copy of the grievance to the respondent and the respondents vice president, and shall investigate the grievance as soon as practicable. The investigation should include an interview with the grievant, the respondent, and other persons who may have relevant information.
2. If the EO Director determines that there is no substantial factual basis for the grievance, the grievance shall be dismissed.
3. If the EO Director determines that there is a substantial factual but not legal basis for the grievance, the grievance shall be dismissed. An example of such includes a finding that an adverse action was taken for reasons other than prohibited discrimination. However, in such case the Director may provide the parties and the supervisor of the respondent with recommendations regarding resolution of the underlying dispute.
4. If the EO Director determines that there is a substantial factual and legal basis for the grievance, but that the allegations do not warrant disciplinary action, the Director shall forward to the supervisor of the respondent the findings, conclusions, and recommendations of the Director.
a) The supervisor shall take such corrective action as the supervisor in consultation with the EO Director determines appropriate under the circumstances, but such action shall not be disciplinary.
b) If the EO Director approves the corrective action taken, the grievance shall be dismissed.
c) If the EO Director does not approve the corrective action taken, the grievance shall proceed as provided in paragraph 5 below.
5. If the EO Director determines that there is a substantial factual and legal basis for the grievance, and that disciplinary action may be warranted if the allegations are determined to be true,
a) the parties shall be notified that the grievance shall be forwarded to a hearing committee;
b) the respondent shall have fifteen (15) days to file a response to the grievance; and
c) temporary action may be taken by the College (e.g., a student may be removed from one class and placed in another). Such action may not be used as evidence in this or any subsequent proceeding.
6. Neither party may appeal the decision of the Director to dismiss a grievance under this Section C; provided, however, that either party may request the Director to reconsider the decision, the grievant may pursue other avenues of redress outside the College, and respondent may file a grievance or complaint under other College or Trustee procedures to contest any corrective action taken under paragraph
4. D. Response to Grievance.
1. The response to the grievance shall be filed with the EO Office within said fifteen (15) days and shall admit or deny each of the factual allegations of the grievance, or state that the respondent has insufficient knowledge or information to admit or deny the allegation.
2. The respondent shall include in the response a narrative
a) stating why the respondent denies that the alleged incidents, occurrences, or decisions were unlawfully discriminatory; and
b) proffering non-discriminatory reasons or explanations therefor.
VI. Prehearing Procedures.
A. Selection of the Hearing Committee.
1. A hearing committee shall be selected within 10 days after respondents response is received by the EO Office.
a) The grievant (or group of co-grievants) and the respondent (or group of co-respondents) shall each select two members from the Equal Opportunity Advisory Council to serve on the hearing committee.
b) If a committee member is not selected by a party within 5 days, the EO Director may select that committee member.
c) Those four members shall select a fifth person from the Council to act as Chair of the hearing committee.
d) The EO Director may strike a selection for good cause shown.
2. Consolidated grievances shall be heard by a single hearing committee.
a) If grievances are consolidated before a hearing committee has been selected, the committee members shall be chosen in accordance paragraph 1 above.
b) If a hearing committee has already been selected to hear a grievance, the committee shall also hear any grievance or grievances which are consolidated with the original grievance.
3. No hearing committee member may be a faculty, staff or student in the same department or program area as any of the parties.
4. If a conflict of interest question is raised about any member of the hearing committee, the EO Director will obtain an opinion on the question from the College attorney, the OSCs Director of Legal Affairs, or an Assistant Attorney General.
5. If any Council member selected to serve on the hearing committee is unable or unwilling to do so, a substitute shall be selected by the person(s) who selected the member.
6. As soon as practicable after the committee has been selected, the EO Director shall transmit copies of the grievance and response to each committee member.
7. Duties of the Chair. The chair of the hearing committee shall preside over all prehearing and hearing procedures, decide all controversies arising in connection therewith, and write the committees finding, conclusions, and recommendations.
8. The EO Director shall assist the chair in such matters as scheduling rooms, mailing or delivering notices or other papers, arranging for tape recording, etc.
B. Schedule of Proceedings.
1. The chair of the hearing committee shall promptly provide the parties and the EO Director with a Schedule of Proceedings on the form set forth in Appendix 2.
2. Ordinarily the hearing shall be scheduled for a date no later than one hundred twenty (120) days from the date the grievance was filed. If holding the hearing within such time is not practicable, the chair of the hearing committee may schedule the hearing for a later date.
3. Changes to the Schedule of Proceedings may be made by the Chair of the hearing committee or the EO Director for good cause shown.
C. Discovery.
1. Interrogatories.
a) Parties may serve upon one another one concise set of written interrogatory questions which are calculated to lead to the discovery of evidence relevant to the issues raised by the grievance and response. A second set of interrogatories may be permitted by the chair of the hearing committee upon written request of a party.
b) Written answers to interrogatory questions shall be served within fifteen (15) days after the interrogatories are served upon a party.
c) Copies of interrogatories and answers shall be simultaneously filed with the EO Office and delivered to each party to the grievance.
d) Objections to interrogatories shall be made to the EO Office as soon as practicable but shall not extend the time to answer unless the Chair of the hearing committee or the EO Director so specifies in writing.
2. Documents.
a) Each party, with notice to the other party, may obtain from the College copies of any non privileged document or file otherwise open to the public under the Colorado Public Records Act and the Family Educational Rights and Privacy Act relevant to the issues raised by the grievance and response.
b) The College will deliver to each party to the proceeding copies of the documents or files sought within fifteen (15) days after the request has been received.
D. Prehearing statement.
1. At least fifteen (15) days before the hearing, each party shall serve a prehearing statement on the other party, and shall file a copy with the EO Office.
2. The prehearing statement shall:
a) list the witnesses the party intends to call at the hearing;
b) give a brief summary of the matters to which each witness is expected to testify; and
c) identify and describe any document(s) or file(s) that party intends to introduce in evidence.
3. Failure to include a witness or document in the prehearing statement will not preclude additional witnesses or documents if new information is uncovered after serving the prehearing statement is filed.
E. Failure to Comply With Prehearing Procedures.
1. The failure to timely comply with requests for discovery, file the prehearing statement, or comply with any other prehearing procedure will subject the individual to sanctions imposed by the hearing committee.
2. Such sanctions may include, but are not limited to, drawing an adverse inference and/or barring the presentation of certain evidence.
VII. Hearing Procedures.
A. Hearings may be closed upon the written request of a party, and shall be electronically recorded.
B. Issue. The principal issue at the hearing shall be whether the unlawful discrimination, harassment, or retaliation alleged in the grievance and denied or otherwise disputed in the response occurred.
C. Opening statements. Each party, beginning with the grievant, may make an opening statement summarizing the grievance or response and stating what the party expects the testimony and other evidence to prove.
D. Witnesses. It is the responsibility of all parties to ensure the attendance of their witnesses at the hearing.
E. Burden of proof and order of presentation.
1. The grievant shall have the burden of proving the alleged discrimination, harassment, or retaliation by a preponderance of the evidence.
2. The grievant shall proceed first and shall present his/her case through the testimony of witnesses and the introduction of documentary evidence.
3. If the committee concludes at the close of the grievant's case that reasonable persons could not infer from the evidence presented that the grievant suffered unlawful discrimination, harassment, or retaliation, the committee may dismiss the grievance before the respondent presents his/her case.
4. If the committee concludes at the close of the grievant's case that a reasonable inference could be made from the evidence presented that the grievant suffered unlawful discrimination, harassment, or retaliation, the burden of producing evidence to the contrary shall shift to the respondent who may present his/her case through witnesses and documentary evidence.
5. At the close of the respondents case the grievant shall be permitted to present rebuttal testimony and other evidence.
F. Evidence and Objections.
1. Each party shall have the opportunity to cross-examine the witnesses presented by adverse parties.
2. Each party may object to any proffered testimony or other evidence as irrelevant or otherwise inadmissible. The committee Chair shall rule on all objections and reject any testimony or other evidence it deems irrelevant or otherwise inadmissible.
3. The committee may pose questions to any witness at any time, and may call any person or any party as a witness.
G. Closing Argument. After all the evidence has been presented, each party may make a closing argument explaining to the committee why s/he believes that the evidence proves or fails to prove that unlawful discrimination, harassment, or retaliation occurred. The grievant goes first, and the respondent follows.
H. Decision of the Committee.
1. Following the hearing, the committee shall meet in one or more closed sessions to consider the evidence and arguments presented by the parties and to make findings, conclusions, and recommendations.
2. The committee's findings and conclusions shall be based solely on the evidence admitted at the hearing.
3. Within twenty-one (21) days after the hearing, the chair of the hearing committee shall transmit the committees written findings, conclusions, and recommendations to the President with copies to all parties and the EO Director.
4. The committee shall have no power to make, amend, or repeal any College policy although it may recommend such action to the President.
VIII. Decision of the President.
A. The President shall review the findings and conclusions of the committee and provide a written decision. If the President does not concur with the committee, the decision shall state reasons for modifying reversing, or remanding the committee's decision. The President's decision shall also give reasons for any corrective action ordered or for any omission to order such action.
B. The President's decision shall be transmitted to each party, the committee, and the EO Director as soon as practicable.
IX. Appeals.
A. There is no formal appeal from the President's decision, but a party may request reconsideration of the decision.
B. A grievant dissatisfied with the decision has the right to file a charge with an external Equal Opportunity enforcement agency.
C. A party facing a disciplinary action as a result of this grievance procedure may have the right to contest the action under Trustee policies or in an external administrative or judicial proceeding.
