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Standard Operating Procedures for Resolution of Employee Complaints Alleging Discrimination
Administration | Approved October 1, 2015
Effective October 1, 2015
I. Purpose and Scope
The University of Maryland, Baltimore (“UMB”) has adopted multiple policies recognizing various employee rights and protections. For example, UMB prohibits discrimination against and by employees (faculty or staff) on the basis of race, color, religion, national origin or ancestry, sex, sexual orientation, gender identity or expression, physical or mental disability, marital status, protected veteran’s status, or age. UMB will take prompt and effective steps to prevent the occurrence of discrimination and remedy its discriminatory effects. Furthermore, UMB prohibits retaliation against employees exercising protected rights (e.g., FMLA). A UMB faculty or staff employee found responsible for violating these policies may be subject to appropriate disciplinary action up to and including discharge.
These Procedures provide a process for the prompt and equitable investigation and resolution of complaints alleging discrimination or retaliation against UMB employees that are not subject to other UMB complaint resolution procedures. These Procedures are intended to comply with, and will be interpreted under federal and state law and USM and UMB policies prohibiting unlawful discrimination.
These Procedures do not supersede policies and procedures addressing issues specifically governed by other UMB policies. Employees are expected to present such complaints in accordance with applicable UMB policy and procedure. Where it is unclear, the Executive Director, Diversity and Inclusion can assist employees in determining where a complaint should be presented.
II. Reporting Complaints
A. Complaints by UMB Employees should be reported to:
Mikhel A. Kushner, JD, MSW
Executive Director, Diversity and Inclusion / Title IX Coordinator
University of Maryland, Baltimore
Office of Accountability and Compliance
620 W. Lexington Street, Fifth floor
Baltimore, MD 21201
410-706-1852 (Direct Line)
866-594-5220 (Anonymous Reporting)
B. The Executive Director, Diversity and Inclusion will review all complaints to determine if the allegations are subject to these Procedures or are instead allegations subject to other UMB policies and procedures. The Executive Director, Diversity and Inclusion will ensure that complaints determined to be subject to these Procedures are investigated and resolved in accordance to these Procedures.
C. UMB encourages prompt reporting of an allegation of discrimination whenever possible. Reporting an incident close in time to its occurrence will enhance UMB’s ability to promptly and effectively investigate complaints, protect employees and students, and educate and discipline offenders.
D. In certain circumstances Interim Measures may be available. Interim Measures are reasonably available steps UMB may take to protect the parties while a complaint is being investigated. Requests for Interim Measures should be directed to the Executive Director, Diversity and Inclusion. The Executive Director, Diversity and Inclusion will contact appropriate UMB personnel to coordinate and implement appropriate Interim Measures.
III. Complaint Response and Investigation
A Complainant should refer to the procedures below to file a complaint to allow the process to begin as soon as practicable. UMB is committed to working with the Complainant and the Respondent throughout the investigation.
Deviations from these procedures that do not materially prejudice the rights of a participant will not invalidate findings or other actions taken in implementation of this process or other UMB policies.
A. Informal Resolution
Once a complaint has been made, the parties may elect to informally resolve the complaint. The Executive Director, Diversity and Inclusion will work with the parties to come to a mutually agreeable resolution. At any point during an informal resolution, the parties may request a formal investigation in accordance with the procedures contained herein.
- After receiving a complaint and doing a preliminary review, the Executive Director, Diversity and Inclusion will determine whether the complaint alleges discrimination or retaliation and is subject to these Procedures. The Executive Director, Diversity and Inclusion will ensure that complaints subject to these Procedures are promptly investigated and resolved.
- The Executive Director, Diversity and Inclusion or another designee will conduct the investigation (“Investigator”).
- The Investigator will interview the Respondent, Complainant and other relevant persons regarding their factual knowledge of the circumstances surrounding the complaint. The parties will be given the opportunity to present relevant witnesses and evidence. The Investigator is authorized to require UMB offices to produce relevant documentary evidence (e.g., emails, work records, prior grievances) relevant to the allegation.
- All participants are free to consult personal or legal advisors, at their own expense. Each participant may have one advisor of the participant’s choice present in meetings during the investigative process. The advisor is present as a support and may not speak for a participant during meetings. The schedule for the investigation will allow time for the participants to consult with and obtain advice from personal and legal advisors.
- Records of the investigation, including copies of evidence and related communications, are confidential and shall be kept secure in the office of the Executive Director, Diversity and Inclusion.
- The investigation will be completed as expeditiously as possible, generally within a period of sixty (60) calendar days from receipt of the complaint unless circumstances warrant a longer period.
- Upon timely completion of the investigation conducted in an impartial manner, a draft written Report shall be prepared that summarizes the information gathered and synthesizes the areas of agreement and disagreement between the parties with any supporting information or accounts. Prior to finalizing the Report and before reaching a finding, the Investigator will provide the Complainant and Respondent an opportunity to review the draft Report (absent a finding). The Complainant and Respondent may submit any additional comment or information in writing within five (5) business days of receiving the draft Report. This is the final opportunity for the parties to identify any additional information or witnesses and review their statements for accuracy.
- Once the draft Report is reviewed by the parties and any additional pertinent information is incorporated, or after the five (5) business day comment period has lapsed without comment by either party, the Investigator will finalize the Report and make a finding as to whether there has been a violation of the Policy.
- The finding will be based on the Investigator’s assessment of the evidence gathered in the course of the investigation, using the preponderance of evidence standard (i.e., whether it is more likely than not that a violation of the Policy has occurred). The finding will be added to the final Report.
- The final Report will be directed to the appropriate UMB dean, vice president, unit head, or designee. The Report will also be given promptly and concurrently to the Complainant and the Respondent. The Report shall notify the parties of their rights of appeal.
If the Complainant or Respondent wishes to appeal the finding, the Complainant or Respondent must submit their written appeal to the appropriate dean, vice president, unit head, or designee detailing the basis for the appeal within five (5) business days of receiving the final Report. Appeals submitted after five (5) business days may be denied.
Appeals must be based upon either (1) procedural error, (2) production of previously unavailable relevant evidence that could significantly impact the outcome of the case, or (3) a violation of substantive due process (e.g., the decision was based upon an illegal or constitutionally impermissible consideration such as a party’s gender, race, age, national origin, sexual orientation, or exercise of First Amendment rights).
Appeals are not intended to allow for a new investigation of the matter. Instead, the review will be narrowly tailored to the specific grounds requested for in the appeal. In most cases, appeals are confined to a review of the written record and the pertinent documentation.
Upon receipt and prompt review of the Report and any written appeals, the UMB dean, vice president, unit head or designee may (a) affirm the finding; (b) alter the finding; or (c) return the matter to the Executive Director, Diversity and Inclusion with instructions to cure a procedural or substantive error or to assess the weight and impact of newly discovered evidence. In the event that a matter is returned to the Executive Director, Diversity and Inclusion under this section, the investigative steps set forth in Section III. B(8) - (10) of these Procedures shall apply.
D. Final Outcome Notice
At the conclusion of the investigative and appellate process after the finding has become final, the Executive Director, Diversity and Inclusion, or designee, shall issue a Final Outcome Notice to both parties separately and concurrently, in writing, and in person, when possible. Issuance of the Notice completes the investigation and adjudication under these Procedures.
IV. Sanctions or Remedial Action
Discipline or sanctions may be imposed if the Final Outcome Notice reflects a violation of the Policy. Additional administrative or remedial measures, including environmental changes and educational programing, may be required where, in consultation with the Executive Director, Diversity and Inclusion the UMB dean, vice president, unit head, or designee determines that these measures will improve compliance with and understanding of the Policy.
V. Grievance Rights
UMB Employees may grieve disciplinary actions depending on the rights afforded to them based on their employee status and the applicable USM or UMB Appointment, Rank and Tenure Policies, other faculty policies, applicable collective bargaining agreements, or other procedures under state law or USM or UMB policy.
Employees may not grieve administrative and/or other remedies that do not constitute formal disciplinary action.
UMB recognizes that complaints alleging discrimination are a sensitive subject matter for all parties involved. However, persons should be aware that UMB may need to disclose information in order to conduct an investigation, resolve a complaint and comply with applicable law. UMB shall share details about investigations with those who have a need to know. Investigations of complaints of discrimination often require the Complainant’s identity to be known by the party or parties whose conduct is being reviewed.
VII. Retaliation and Bad Faith Complaints
UMB prohibits retaliation against anyone who files a complaint, anyone against whom a complaint is filed, or anyone who participates in a complaint investigation. Likewise, UMB will not tolerate or condone the deliberate filing of false accusations. An individual found to have made a bad faith complaint is in violation of UMB Policy and may be subject to disciplinary action.
VIII. Complaints Involving UMB Affiliates and Third Parties Not Affiliated with UMB
UMB's affiliates will be informed of UMB's commitment to provide UMB Employees and others with a workplace free of discrimination and will be asked to work with UMB in confidence to investigate complaints and eliminate illegal discrimination through education and, if need be, employee sanctions.
UMB affiliates and affiliates' employees are encouraged to report complaints involving UMB Employees to the Executive Director, Diversity and Inclusion. UMB cannot discipline employees of its affiliates, but UMB will cooperate with its affiliates to resolve such complaints and take reasonable steps to prevent further discrimination that may be directed toward the Complainant and others. UMB will attempt to resolve the issue, as soon as practicable, and may reassign the Complainant to another area or supervisor, if a resolution is not feasible. If necessary, UMB may also work with the affiliate to co-investigate the complaint under the affiliate’s process. UMB Employees are subject to discipline for discriminatory conduct directed toward employees and others in the affiliate’s workplace.
Failure to file a complaint with one's own employer may jeopardize legal remedies. Therefore, employees of affiliates should be aware that their complaints involving UMB Employees should be filed with their own employer as well as with UMB. Likewise, UMB Employees should file complaints involving affiliates' employees with UMB as well as with the affiliate.
UMB Employees who believe they have been subjected to discriminatory conduct by a third party not affiliated with UMB, should report a complaint to the Executive Director, Diversity and Inclusion. After discussion with the Complainant and a review of the circumstances, UMB will take reasonable steps to prevent discriminatory conduct that may be directed toward the Complainant and others, which may include requesting from the UMB President’s Office a formal letter to the third party denying access to UMB buildings or grounds for acting in a manner that disrupts or disturbs the normal operational or educational functions of UMB. The UMB President is authorized by State law to deny campus access to a third party engaged in disruptive behaviors (see Sections 26-101 and 26-102, Education Article, Annotated Code of Maryland).
IX. External Complaints
UMB Employees have the right to file complaints with external government agencies. UMB investigations may offer the potential of more timely resolutions of complaints. Complaints of employees may be directed to the following agencies:
Office of the Statewide EEO Coordinator (OSEEOC), Maryland State Department of Budget and Management, 301 West Preston Street, Room 607, Baltimore, MD 21201, (410) 767-3800
Maryland Commission on Civil Rights (MCCR), 6 Saint Paul Street, Suite 900, Baltimore, MD 21202, (800) 637-6247
Equal Employment Opportunity Commission (EEOC), 10 South Howard Street, 3rd Floor, Baltimore, MD 21201, (800) 669-4000
To protect legal rights and remedies, certain time deadlines must be met in connection with external filings. Failure to meet these deadlines can result in a loss of all rights to seek a legal remedy for one's complaint.
The Employee Assistance Program or personal counselors can be useful in helping employees cope with the stress resulting from experiencing discriminatory conduct or participating in an investigation of a complaint. Please call (667) 214-1555 for information about employee counseling services. More information can also be found at www.umb-eap.org.
XI. Education and Consultations
Through the Office of Accountability and Compliance, educational programs and preventive consultations with employees can be arranged. Contact the Executive Director, Diversity and Inclusion at 410-706-2281.