Guideline 3-22 Protection from Retaliation for Reporting Suspected Wrongdoing
I. Scope of Policy
Retaliation is workplace conduct or employment decisions that a reasonable employee would view as materially adverse and whose purpose or effect is to discourage employees from exercising their rights under this policy or under the law. These rights include, but are not limited to, filing a complaint under this policy; reporting a violation of law to an appropriate law enforcement agency; assisting another employee in the filing of a complaint; providing information during an investigation or testifying in a legal proceeding; and filing an EEOC charge. Retaliation against employees who engage in protected conduct is expressly prohibited. The protection against retaliation applies to all good-faith complaints, even if the complaints ultimately are not sustained.
Employee complaints about an employee’s terms or conditions of employment, including complaints related to harassment, discipline, compensation, and leaves of absence, generally should be raised using the College’s employment practices, policies and procedures, including the Policy on Harassment (IV-B-3b), the Policy on Workplace Bullying (IV-B-3c), the Policy on Concerns (IV-I), and the Policy on Grievances (IV-J0.
Student complaints about grades, discipline, or academic records generally should be raised using the College’s student services policies, including the Policy on Harassment of Students (IV-3a), the Policy on Grade Appeals (IV-N), the Policy on Student Discipline (VI-O), and the Policy on Student records (IV-P).
II. Procedure for Submitting a Retaliation Complaint
Informal resolution: Any employee may seek advice or information on matters related to this policy without having to lodge a formal complaint. Employees may seek informal guidance by contacting the Vice Chancellor of Human Resources or the Vice Chancellor of Fiscal Affairs. The administrator responding to the informal complaint shall maintain a written record of the terms and conditions of any informal resolution.
Formal Complaints: Formal complaints may be submitted to any of the following: the Vice Chancellor of Human Resources, the Vice Chancellor of Fiscal Affairs, or the Chancellor. Use of the informal resolution process is not a prerequisite to filing a formal complaint.
Employees who are subjected to conduct in violation of this policy are encouraged to report the conduct at the earliest possible stage, before the conduct becomes severe or pervasive, so that the College may take appropriate action to investigate and remedy the improper conduct. A delay in reporting may impair the College’s ability to investigate or to take meaningful corrective action.
Formal complaints shall be in writing and shall contain the following information:
- Complainant’s name and contact information;
- Name and work location of the person(s) accused of retaliation;
- Date(s) of the alleged retaliation; 2
- A description of the alleged retaliation, including specific details regarding the conduct that is alleged to be retaliatory;
- A description of any other relevant information tending to show a retaliatory motive for the conduct;
- Copies of pertinent documents and physical evidence, when applicable;
- Names of material witnesses;
- Remedy requested by the complainant;
- Complaint’s signature and date of submission.
The following communications do not constitute a retaliation complaint for purposes of this policy: oral allegations; anonymous complaints; courtesy copies of correspondence filed with other agencies; and informal inquiries seeking advice or information only.
III. Investigation of Formal Complaints
- All formal complaints shall be transmitted to the Vice Chancellor of Fiscal Affairs for evaluation and processing, unless the Vice Chancellor of Fiscal Affairs is the subject of the complaint. If the Vice Chancellor of Fiscal Affairs is the subject of the formal complaint, then the complaint shall be transmitted to the Vice Chancellor of Human Resources for evaluation and processing. Each person who receives a retaliation report shall treat the information confidentially and shall share the information only with others in the administration who have a legitimate need to know. Confidentiality is necessary to prevent the destruction, removal, or alteration of evidence; to protect witnesses who have come forward from retaliation; and to minimize the risk of premature disclosure of information that may adversely impact individuals who may be erroneously accused.
- Within five working days of receipt of the complaint, the Vice Chancellor of Fiscal Affairs, in consultation with the Vice Chancellor of Human Resources, shall determine (i) whether the allegations in the complaint are subject to this policy and (ii) whether the complaint shall be handled internally and administratively or whether an outside auditor, investigator, or other consultant shall be engaged to conduct the review. If the Vice Chancellors of Fiscal Affairs and Human Resources determine that the complaint is subject to this policy, the Vice Chancellor of Fiscal Affairs shall inform the complainant and shall identify the individual(s) who will conduct the investigation. If the Vice Chancellors of Fiscal Affairs and Human Resources determine that the complaint does not fall within the policy or does not comply with the requirements of this policy, the Vice Chancellor of Fiscal Affairs shall notify the complainant and state the reason for that determination. In the event that the complainant submits a deficient complaint that lacks the information required by this policy, the Vice Chancellor of Fiscal Affairs shall provide the complainant a reasonable opportunity to submit a corrected complaint.
- The Vice Chancellor of Fiscal Affairs and the Vice Chancellor of Human Resources together shall inform the individual accused of retaliation (the “respondent”) of the nature of the allegations and the status of the complaint at the point and to the extent that the Vice Chancellors of Fiscal Affairs and Human Resources determine that notification will not compromise the integrity of the investigation. The respondent shall be informed in writing by the Vice Chancellor of Human Resources that contacting the complainant about the complaint is prohibited and that retaliation of any kind may result in discipline, including termination. In some instances, temporary suspension or removal of the respondent from the work site may be implemented during the pendency of the investigation.
- The designated investigator, whether internal or external, shall promptly investigate each complaint, demonstrating appropriate urgency. Prompt investigation means that the investigation is commenced and completed as expeditiously as possible given the nature and complexity of the allegations. The designated investigator shall interview the complainant, the respondent, and other persons whom the investigator determines may possess pertinent factual information. The complainant and respondent shall cooperate in the scheduling of an interview and shall promptly respond to the investigator’s requests for information.
- To maintain the integrity of an on-going investigation, all individuals who are involved in the investigation, including the complainant and the respondent, shall exercise good judgment and refrain from discussing the matter with third parties and other employees or students who do not have a legitimate, business-related need to know. Persons who violate the confidentiality rights of other individuals or who engage in conduct that reasonably may be perceived as witness intimidation or retaliation may be subject to discipline.
- The College’s objective is to complete the investigation within 35 calendar days of receipt of the complaint. If the investigator determines that additional time is needed, he or she shall promptly notify the complainant, the respondent, and the administrator facilitating the investigation.
- Retaliation complaints against the Chancellor or a Board member shall be submitted directly to the Chairman of the Board of Trustees. If the Chairman of the Board of Trustees is the individual accused of retaliation, then the report shall be submitted to the Vice Chairman of the Board of Trustees. The board shall take appropriate action to investigate the complaint.
IV. Report of Findings
The designated investigator shall submit a proposed statement of findings and copies of relevant documents to the Vice Chancellors of Fiscal Affairs and Human Resources. The investigator and the Vice Chancellors of Fiscal Affairs and Human Resources shall meet to determine whether further investigation is needed. Once the investigation is determined to be concluded, the investigator shall provide a summary of the fact-finding report to the Vice Chancellors Fiscal Affairs and Human Resources. In collaboration with the Vice Chancellor of Fiscal Affairs, The Vice Chancellor of Human Resources shall determine whether there is evidence of a policy violation and whether corrective action or other remedy is warranted. The Vice Chancellor of Human Resources shall communicate his or her recommendations in writing to the Chancellor. In the event of a complaint against the Chancellor or a Trustee, the Board shall make these determinations.
The Vice Chancellor of Human Resources shall notify the complainant, respondent, and supervisor of the respondent of the findings and the administration’s response to the findings. If the complainant or respondent is dissatisfied with the administration’s response to the findings, the affected employee may appeal in writing to the Chancellor or his or her designee. The grievant must file his or her appeal within five business days of receipt of the administration’s response. The appeal must be received by the Chancellor prior to the deadline. The Chancellor or designee shall schedule a meeting with the employee within five business days of receipt of the appeal. The Chancellor or designee shall reply in writing within five business days after the meeting. The meeting with the Chancellor shall be based on the investigation. No new information will be received by the Chancellor unless the grievant establishes good cause for not having submitted the information during the investigation. The deadlines in this paragraph may be extended by mutual consent.
If the decision of the Chancellor or his or her designee is not satisfactory to the employee, the employee may present the grievance to the Board at the next regular meeting in accordance with the policy for hearing of citizens.
V. Deadlines Applicable to Texas Whistleblower Act Complaints
The Texas Whistleblower Act prohibits retaliation against public employees who in good faith report violations of law to an appropriate law enforcement agency. (Section 554.002 of the Texas Government Code.) A public employee may file suit for damages and/or reinstatement, lost wages, court costs, and legal fees.
An appropriate law enforcement authority is one that the employee believes in good faith is authorized to regulate or enforce the law alleged to be violated or to investigate or prosecute a violation of criminal law. Before filing suit relating to a suspension, termination, or other adverse personnel action, a public employee first must file a complaint using the employer’s complaint procedure. The employee must invoke the complaint procedure “not later than the 90th day after the date the alleged violation [of the Whistleblower Act] occurred or was discovered using reasonable diligence.”
If the College does not render a final decision on the complaint before the 61st day after the complaint procedure was invoked, the employee may elect to:
- Exhaust the College’s complaint procedure, in which case the employee must sue not later than 30th day after those procedures are exhausted (i.e., completed all steps of the College complaint process); or
- Terminate the College complaint procedure, in which event the employee may sue within the time remaining (i.e., file suit not later than the 90th day on which the alleged violation occurred or was discovered by the employee through reasonable diligence).
Additional information regarding the Texas Whistleblower Act is available on the web page of the Office of the Texas Attorney General.
VI. Prevention of Retaliation
The College shall annually notify all employees that retaliation is prohibited against employees who report suspected wrongdoing. Additionally, the College shall publish on its web page information that informs employees how to file a complaint.