Hearing for Non-reappointment, Non-promotion and Denial of Tenure

The scope of review by the faculty Committee on Discharge and Non-reappointment (hereafter, the "Committee") is specified in Section VI, Unfavorable Decision for Tenure-Track Faculty Members.

The Committee's role is not to "second-guess" the professional judgment of administrators and colleagues responsible for making the non-reappointment, non- promotion, decision. The Committee does not re-examine the merits of the Faculty Member's candidacy. Its sole function is to determine if the decision was based on one of the three Impermissible Grounds or if the process was materially flawed or if procedural errors occurred.

The burden of proof in non-reappointment, non-promotion cases rests with the Petitioner (faculty member) and not with the Respondent (university).

The standard of proof is proof by a preponderance of the evidence or greater weight of the evidence. This means that the Petitioner must prove that his or her allegations of impropriety are more likely true than not true. The Committee determines whether this burden of proof has been met by weighing all of the evidence and the demeanor and credibility of the witnesses, in the light of experience and common sense judgments.

Upon receipt of a request for hearing, the Committee chair shall convene the committee for the purpose of determining whether a hearing shall be granted. A hearing shall be granted, if the Committee determines that the request contains a contention that the decision was impermissibly based as set out herein above and (b) the facts offered, if established, will support the contention. A denial of the request finally confirms the decision and the Petitioner shall be advised by a simple statement of the Committee’s decision and his or her appeal rights. A copy of the letter shall be sent to the Respondent. If the request for hearing is approved, the Respondent shall be provided a copy of the written request for hearing, and a hearing shall be scheduled within 30 Days of the date the request was received. The committee chair may seek agreement of the Petitioner and Respondent to extend these time limits if the limits are impractical.

For purposes of preservation of a record of the hearing, the Committee chair through the Office of Legal Affairs will arrange for the availability of a court reporter. Upon request, the university will provide the Respondent with a copy of a Transcript of the hearing.

The hearing shall be conducted informally and in private. Only the members of the committee, the Faculty Member, the provost, and such witnesses as may be called may attend, except that both the Faculty Member and the provost may be accompanied by one person of their choosing. Witnesses shall remain outside the hearing chamber except when testifying.

In the spirit of avoiding unfair surprise, and to facilitate the hearing process, the parties should provide a list of witnesses and copies of exhibits they intend to introduce at the hearing, to each other, and to the Committee chair, at the beginning of the hearing. Copies of exhibits should also be made for each Committee member. The failure to list a witness, or to provide advance copies of all exhibits, will not preclude a party from calling the witness or from introducing a document. However, the opposing party may be granted a temporary adjournment of the hearing if the Committee deems a delay necessary in order for that party to adequately respond to the new evidence. It is important to note that the Committee has no authority to compel the attendance of witnesses. However, the chair may request that the chancellor ensure that all witnesses who are employees of the University are given permission to attend the hearing.

Both the provost and the Faculty Member are allowed one person of their choosing to accompany them to the hearing. Neither party shall be actively represented in the hearing by an attorney.

1. Call to Order-Quorum

   The chair will call the hearing to order, determine whether a quorum exists, and explain procedures. A quorum consists of a simple majority of the total Committee membership, exclusive of alternates.

2. Challenge to Committee Membership

   Hearing Committee members who: (1) hold an appointment in the Petitioner's department or school (the latter only applies for schools which have no departments), (2) who will testify as witnesses, or (3) who have any other conflict of interest, are disqualified from participating in that hearing. Upon receipt of the notice of hearing and following the call to order, each party will be given an opportunity to challenge any Committee member's qualifications to serve. The Committee (excluding the Committee member under challenge) will decide whether to grant or deny that challenge based on a majority vote.

3. Court Reporter Swears Witnesses

   The court reporter shall swear in all witnesses at the beginning of the hearing or as witnesses appear to give testimony.

4. Opening Remarks

   Starting with the Petitioner, each party will be given the opportunity to make opening remarks limited to five minutes each. The purpose of opening remarks is to orient the Committee to the nature of the case and to the facts the party intends to establish. Opening remarks are not evidence.

5. Petitioner's Case in Chief

   At the conclusion of opening remarks, the Petitioner will present evidence (witnesses, documents, his or her own testimony, etc.) in support of his or her allegations. All witnesses may be questioned by members of the Committee, by the Petitioner and Respondent, and by the representatives of the Petitioner and Respondent. Except under extraordinary circumstances, Petitioner will be limited to a total of three hours to present his or her case. Petitioner may reserve a portion of those three hours for rebuttal at the conclusion of Respondent's evidence. If the Petitioner wishes to reserve rebuttal time, Petitioner must notify the Committee of that fact at the beginning of the hearing.

6. Determination of Whether a Prima Facie Case Has Been Presented

   After the Petitioner concludes his or her presentation, the Committee will recess the hearing and withdraw into closed session to determine whether Petitioner has established a prima facie case. A prima facie case is established if the Petitioner's evidence, standing without rebuttal and with the most reasonably favorable inferences to be drawn from them, proves his or her contention. The Committee's decision will be by majority vote. If the Committee determines that the Petitioner has not established a prima facie case, the chair will orally notify the parties of that decision and thereby end the hearing. That decision confirms the decision not to reappoint, not to promote, or not to confer Permanent Tenure and will be confirmed in writing to both parties. If the Committee determines that Petitioner has established a prima facie case it will resume the hearing.

7. Respondent's Case

   The Respondent may present evidence (witnesses, documents, his or her own testimony, etc.) in support of his or her allegations. All witnesses may be questioned by members of the Committee, by the Respondent and Petitioner, and by the representatives of the Respondent and Petitioner. Except under extraordinary circumstances, the Respondent will be limited to a total of three hours to present his or her case.

8. Petitioner's Case in Rebuttal

   At the close of the Respondent's case, the Petitioner may submit evidence limited to rebuttal of Respondent's evidence.

9. Closing Remarks

   At the conclusion of all the evidence, Petitioner may make closing remarks to the Committee, followed by the closing remarks of Respondent. Since Petitioner bears the burden proof, Petitioner may also make brief final remarks in response to Respondent's closing. Closing remarks shall not exceed fifteen minutes per side.

10. Committee Deliberations and Decision

    After the closing remarks are concluded, the Chair will close the hearing and the Committee will withdraw into closed session. If the Committee wants to read the Transcript, the chair will adjourn the hearing and reconvene the Committee after the transcript is available, otherwise, the Committee may begin its deliberations immediately. The Committee's decision will be by majority vote. As discussed earlier, the Petitioner bears the burden of proving, by a preponderance of the evidence, his or her contention that the Non-reappointment and Non- promotion decision was impermissibly based. The committee must determine (1) whether the decision not to reappoint was based on impermissible reasons and (2) whether the procedure to reach the decision materially deviated from the prescribed procedures such that doubt is cast on the integrity of the decision not to reappoint.

If the Committee decides that the Petitioner has not established his or her case, it will so notify Petitioner and Respondent by a simple, unelaborated written statement. If the Committee determines that the Petitioner has established his or her case, it will so notify the Petitioner and Respondent by a written notice that includes a recommendation for corrective action by the Provost.

Within 10 Days after receiving such a recommendation, the Provost shall notify the Faculty Member and the chair of the committee what modification, if any, he or she will make with respect to the original decision not to reappoint.

If the Provost fails to make a recommended modification in the original decision, the committee shall submit a report to the chancellor containing the committee’s findings and recommendation and what it considers to be appropriate action by the chancellor to resolve the matter.

The chair of the hearing panel shall assemble the case file consisting of all documents and correspondence received, sent or accepted by the panel as part of its consideration of the case, including, the Petitioner’s initial statement, the hearing transcript and documents introduced as evidence and any report and recommendation. The chair will deliver the case file to General Counsel within five days after all the foregoing procedures are complete.

The chancellor will issue a final written opinion within 30 Days after receiving the hearing documents including the transcript of the hearing. The Chancellor’s decision shall be based on the recommendations and evidence received from the hearing committee including the Transcript of the hearing.

A Faculty Member’s appeal on non-reappointment beyond the chancellor is to the Board of Governors.
If the Chancellor concurs in a recommendation of the committee that is favorable to the faculty member, then the Chancellor’s decision shall be final. If the Chancellor either declines to accept a committee recommendation for non-reappointment that is favorable to the faculty member or concurs in a committee recommendation that is unfavorable to the faculty member, then the faculty member may appeal by filing a written notice of non-reappointment appeal with the Board of Governors, by submitting such notice to the President by a method that requires proof of delivery, within 14 calendar days after the faculty member’s receipt of the Chancellor’s decision.

The notice must contain a brief statement for the basis for the appeal.

A Faculty Member’s appeal on only a non-promotion or denial of tenure beyond the chancellor is to the Board of Trustees.  If the Chancellor either declines to accept a committee recommendation for non-promotion that is favorable to the faculty member or concurs in a committee recommendation that is unfavorable to the faculty member, then the faculty member may appeal by filing a written notice of non-promotion appeal with the Board of Trustees, and submitting such notice to the Board of Trustees Chair, by certified mail, return receipt requested, or by another means that provides proof of delivery, within 14 calendar days after the faculty member’s receipt of the Chancellor’s decision. The notice must contain a brief statement for the basis for the appeal.

The purpose of the appeal is to assure (1) that the campus-based process for reviewing the decision was not materially flawed, so as to raise questions about whether the faculty member’s contentions were fairly and reliably considered, (2) that the result reached by the Chancellor was not clearly erroneous, and (3) that the decision was not contrary to controlling law or policy.

A tape recording and/or transcript made of each hearing before a panel shall be preserved by the Office of Legal Affairs so long as the possibility of appeal including the filing of a law suit remains open. The tape and any Transcript or other written record remains the property of the University.

An appeal in a Nonreappointment case must be made by sending written notice of appeal to the Board of Governors by a method producing proof of delivery, c/o the UNC President, PO Box 2688, 910 Raleigh Road, Chapel Hill, NC 27515. Notice must be sent within 14 calendar days of receipt of a final opinion from the chancellor.

An appeal in a promotion only case may be made by sending written notice of appeal to the Board of Trustees, c/o WSSU Chancellor 200 Blair Hall, Winston-Salem State University, Winston-Salem, NC 27110 Notice must be sent within 14 calendar days of receipt of a final agency decision from the chancellor.