Discrimination Complaint - Procedure 2.1800

Purpose:

This procedure is intended to provide employees, students, and applicants for employment or admission to the College an opportunity to file a complaint of discrimination and to seek a resolution of that complaint through a procedure devoid of coercion, interference, restraint, discrimination, or reprisal.

This procedure shall apply only to complaints of discrimination based on race, color, religion, gender (including sexual harassment), national origin, age, marital status, or disability. Employment termination is not covered by this procedure.

Procedure:

1. Definitions:
   
   
   1. Alleged Discriminating Party (the respondent): The person acting individually or as a representative of the College who is believed by the complainant to be creating, or to have created, the incident of discrimination.
      
      
   2. Complainant: An individual employee or group of employees having the same complaint.
      
      
   3. Complaint: A dissatisfaction wherein a person feels he/she has been adversely affected by discrimination at the College. The words "complaint" and "grievance" are interchangeable; however "complaint" is used in this procedure to reflect current usage.
      
      
   4. Contact Person: The Coordinator of Equity and Employment Services or if s/he is unavailable, the Director of Human Resources.
      
      
   5. Discriminate: To act with partiality or prejudice either for or against a person or group based on race, color, religion, gender, national origin, martial status, age or disability.
      
      
   6. Duty Day: A duty day as defined by the College District Board of Trustees' approved calendar.
      
      
   7. Coordinator of Equity and Employment Services (Coordinator): A person employed by the College to assist the administration in avoiding situations of discrimination and in resolving situations where discrimination is alleged.
      
      
   8. Evidence: As applied in this procedure, any information, including documents and testimony, which relates to the alleged circumstances which gave rise to the complaint.
      
      
   9. File Date: The date the Discrimination Report Form is received by the Coordinator of Equity and Employment Services which initiates the inquiry process, or the date the Hearing Request Form is received by the Coordinator of Equity and Employment Services, which initiates a hearing.
      
      
   10. Grievance: See "Complaint."
       
       
   11. Hearing: A process used by the complainant in which a hearing panel is convened to hear a discrimination complaint.
       
       
   12. Hearing Panel (Panel): The five-member panel, chosen to hear a discrimination complaint.
       
       
   13. Inquiry: A process used by the complainant in an endeavor to amicably resolve a discrimination complaint.
       
       
2. General Information
   
   
   1. A person may informally discuss an alleged situation or incident with a contact person prior to or without initiating an inquiry or hearing.
      
      
   2. The Coordinator shall assume a neutral role during an inquiry or hearing. The Coordinator's role shall include assisting involved persons, arranging meetings, and processing documents. In the event that the Coordinator is a complainant, a named respondent, or is on leave, the President shall appoint a full-time employee to perform the Coordinator's duties as defined in this procedure.
      
      
   3. Inquiries and hearings shall be processed and conducted during regularly scheduled hours of employment whenever possible; however they may be held in the evenings or on weekends to accommodate the schedule of the complainant and/or the supervisor/administrator.
      
      
   4. The failure of any individual, or group of individuals, to communicate a written decision to the complainant within specified time constraints shall permit the complainant to proceed to the next step in the complaint process.
      
      
   5. The failure of the complainant to appeal a decision to the next step of the process within the specified time constraint shall constitute withdrawal of the complaint and bar further action on the complaint.
      
      
   6. Specified time constraints at each step of an inquiry or hearing are the maximum times allowable, but may be extended by the Coordinator upon written approval of the complainant and the respondent. Requests for extensions shall be processed through the Coordinator.
      
      
   7. All communications, documents, and records paper or electronic, pertinent to the complaint process shall be filed in Human Resources in a designated complaint file. The Director of Human Resources is the custodian of all documents and other evidence connected with a complaint of discrimination. Such communications, documents, and records may be released only upon written request as required by F.S. 240.337, Records of Personnel.
      
      
   8. The complainant shall be responsible for the costs of preparing and presenting his/her case. If the respondent is accused of a discriminating act while acting in an official capacity for the College, the costs of preparing and presenting the respondent's case shall be paid by the College. A respondent accused of a discriminating act in his individual capacity, shall be responsible for the costs of preparing and presenting his/her own case.
      
      
   9. As a result of an inquiry or hearing, a finding that a respondent has discriminated shall form the basis for disciplinary action.
      
      
   10. The complainant and testifying individuals shall be protected from any form of retaliation from any person or group of persons connected with the College.
       
       
   11. Should the working or instructor/student relationship between the complainant and the respondent become strained, a temporary reassignment of specified duration of either person will be considered by the President and, if necessary, implemented with the agreement of the person being reassigned.
       
       
   12. In the event that the President is a named respondent, the Board shall designate an individual to perform the President's duties as defined in this complaint procedure.
       
       
   13. The complainant may determine that the inquiry process may not provide a satisfactory resolution, and proceed directly to the formal hearing procedure.
       
       
3. Informal Complaint
   
   
   1. Any individual covered by this policy who believes that s/he has been discriminated against for any or all of the reasons set forth in "Purpose" above, must notify the Coordinator of the complaint, either orally or in writing, within fifteen duty days of the alleged incident. The file date for the inquiry is the date the complaint is received by the Coordinator.
      
      
   2. The Coordinator will then engage in informal discussions with the complaining party, and any other individuals involved, for purposes of settling differences in a timely and direct manner. The Coordinator may involve the Director of Human Resources, administrators, supervisors, or any other individuals at this step of the proceeding. The Coordinator shall endeavor to resolve the matter at this step within thirty duty days of receiving the complaint.
      
      
4. Formal Complaint
   
   
   1. If the complaint is not resolved through the informal process in the thirty duty day period allowed, the complainant may render a formal written complaint within forty-five days of the date that the informal complaint was filed.
      
      
   2. To invoke the formal complaint the complainant must complete a Discrimination Report Form which is available from the Coordinator or Human Resources. The formal complaint must contain at a minimum the following:
      
      
      1. A complete statement of the complaint and the facts upon which it is based;
         
         
      2. An indication of what type of discrimination the complainant is alleging;
         
         
      3. An identification of the individual or individuals responsible for the alleged discrimination; and,
         
         
      4. The remedy or correction requested.
         
         
   3. The Coordinator shall formally investigate the complaint and meet with those individuals allegedly involved in the discrimination (respondent). If discussions have been already held with the respondent during the informal step, the Coordinator may require additional meetings to secure more information, or clarify that information previously given. The Coordinator shall then provide a written report to the President containing at a minimum:
      
      
      1. The basis of the complaint;
         
         
      2. The names of the persons involved;
         
         
      3. Disputed facts;
         
         
      4. Undisputed facts; and,
         
         
      5. The final disposition of the inquiry.
         
         
   4. The Coordinator shall complete the process within forty-five duty days from the date of the Discrimination Report Form, unless granted additional time by the President. A copy of the Coordinator's report must be given to the complainant and the respondent at the time it is submitted to the President.
      
      
5. Complaint Hearing Panel
   
   
   1. If either the complainant or the respondent is not satisfied with the report of the Coordinator, either party may request a hearing before a Complaint Hearing Panel. Such a hearing must be requested within fifteen duty days of the report date of the Coordinator in the Formal Complaint step.
      
      
   2. The request for a Complaint Hearing Panel must be made by completing and submitting to the Coordinator a Hearing Request Form which is available from the Coordinator's office or Human Resources.
      
      
   3. The Complaint Hearing Panel (Panel)
      
      
      1. Within fifteen duty days of filing the Hearing Request Form, the complainant and the respondent shall each provide to the Coordinator the names of four persons selected from among current college employees and/or students as candidates for the Panel. The Coordinator will promptly submit these names to the President who will promptly appoint two names from each list to serve on the Panel and a fifth person of his/her choosing to serve as chair. If the names submitted to the President are not acceptable, s/he may request different lists. The members of the Panel may not be relatives, as defined in Board Rule 2.095, of any party to the proceeding.
         
         
      2. A hearing shall be held within twenty duty days of appointment of the Panel, unless otherwise agreed to by a majority of the panel members.
         
         
      3. At least ten duty days prior to the hearing date, both parties shall submit to the Coordinator, copies of all documents to be introduced as evidence at the hearing, as well as a list of all witnesses, except rebuttal witnesses, who will be called to testify at the hearing. No witness or documentary evidence may be presented at the hearing, other than rebuttal witnesses or documents, which has not been identified in this document, absent good cause shown.
         
         
6. The hearing shall be conducted in the following manner:
   
   
   1. As presiding officer, the chair shall have control of the proceedings.
      
      
      1. The chair shall take whatever action is necessary to insure an equitable, orderly and expeditious hearing. The parties shall abide by the chair's decisions.
         
         
      2. In the event that a member of the Panel objects to a decision by the chair, a majority vote of the Panel shall govern.
         
         
   2. The hearing shall be fact finding and strict courtroom procedures shall not be followed.
      
      
   3. Testimony of witnesses shall be under oath or affirmation.
      
      
   4. The Coordinator shall serve as a resource person to the Panel.
      
      
   5. The Chair or any member of the Panel may direct questions to either party at any time during the proceedings.
      
      
   6. Either party may submit evidence in addition to presenting witnesses. The following rules shall apply.
      
      
      1. The rules of evidence shall be liberally interpreted and construed.
         
         
      2. Either party may object to irrelevant material but no technical objections will be allowed, except as provided below. The chair shall decide if material is relevant.
         
         
      3. Cross examination of witnesses shall be allowed.
         
         
      4. No witness or documentary evidence may be presented at the hearing that was not revealed fifteen duty days before the date of the hearing as provided in section 6, C, (3) above.
         
         
      5. In a hearing regarding disciplinary action for performance matters, the competency of an employee's supervisor to evaluate the employee shall not be an issue. In this instance, an employee's burden shall be to prove that his performance was satisfactory. If employee performance evaluations are to be introduced as evidence, the employee must give written consent under the provisions of F.S. 240.337, Records of Personnel. If employee consent is given and the respondent uses employee performance evaluations as evidence, these evaluations shall be presumed accurate in the absence of clear and convincing evidence to the contrary.
         
         
7. The hearing proceedings shall be in the following order:
   
   
   1. The Chair of the Hearing Panel shall open the hearing upon determining that all members are present.
      
      
   2. The Chair shall state the general rules of the procedures to be followed in the conduct of the hearing.
      
      
   3. The party requesting the hearing shall give his/her opening statement.
      
      
   4. The other party shall give his/her opening statement.
      
      
   5. The party requesting the hearing shall present evidence and testimony in support of his/her case.
      
      
   6. The opposing party may then present evidence and testimony in response.
      
      
   7. The party requesting the hearing will then be offered an opportunity to offer any rebuttal evidence.
      
      
   8. The party requesting the hearing will be offered an opportunity to provide a closing statement.
      
      
   9. The opposing party will be offered an opportunity to provide a closing statement.
      
      
   10. At the conclusion of the taking of evidence and the closing statements of the parties, the Chair shall close the hearing.
       
       
8. Immediately after the hearing is closed, the Panel shall conduct its deliberations in an open meeting and reach it's decision by majority vote. The Chair shall present the Panel's written report, signed by each panel member, to the President, complainant, and respondent within five duty days of adjournment. The report shall contain a brief summary of the hearing, the issues in dispute, the issues not in dispute, and a recommended resolution.
   
   
9. Review by the President
   
   
   1. The President shall, after receipt of the Panel's report, make a decision to either affirm, deny or modify the recommendation of the Panel. The President shall endeavor to issue a decision within thirty duty days of receiving the Panel's report. Copies of the President's decision shall be given to all parties.
      
      
   2. No additional evidence or witness testimony shall be submitted or given consideration by the President, unless it can be shown that the party or parties seeking to introduce the new evidence could have had no knowledge of its existence at the time of the hearing.
      
      
   3. The President's decision is final and may not be appealed.

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