Corrective Action vs. Discipline

 

Last year, the FA negotiated a new, comprehensive article in our contract, Article L.3.0: Investigations, Due Process, and Discipline. Over the past several years, the number of Investigations in which faculty is involved, whether as a respondent, witness, or complainant has been increasing. We now have solidified language which outlines the procedures, defines critical terms, and ensures the rights of the faculty involved are protected through such proceedings.

 

Two key items that were defined in the Article include Corrective Action and Discipline. These terms needed to be clearly differentiated as each triggers a different response and have unique due process implications. The terms are defined in the Article as follows:

Corrective Action: The following items are considered corrective actions and not disciplinary actions: verbal counseling or written counseling memo, which may also include reasonable training, professional development, and/or an off-cycle evaluation.

 

Discipline: Written reprimands, suspensions or dismissals [see K.5.0] based on a violation of law or District Policy, or pursuant to sections 87732 and 87734 of the Education Code, are considered disciplinary action(s). The district will only discipline faculty by the means listed in this definition.

The District has also committed that all actions taken “shall be guided by the principles of due process and progressive discipline as appropriate to each circumstance.”
 

A Scenario

Let’s look at an imaginary scenario: A student files a CARE report claiming sexual harassment against an instructor because of the use of multiple sexually-based examples and images in class. Upon intake, the issue is routed to Hayley Schwartzkopf, Director of Labor Relations and Title IX Coordinator. After reviewing the claim, the District makes an initial determination of whether the allegations in the complaint could rise to the level to violate district policy or procedure, local, state or federal law. For our scenario, let us assume the complaint is deemed worthy of an investigation. The student bringing the claim is interviewed as well as the faculty member under investigation (respondent) and perhaps other witnesses. 

 

Upon conclusion of the investigation, the claim is deemed UNSUBSTANTIATED, meaning after a preponderance of the evidence, the claim did not rise to the level of a Title IX violation. No Disciplinary action is taken. However, there might be some Corrective Action which includes some verbal counseling by the faculty member’s dean (likely in consultation with Hayley) to provide some guidance and suggestions for the discussion of sexual matters in the classroom and recommending the instructor clearly links the use of such material with course content. This is NOT discipline and will not result in any punitive actions against the faculty member nor will the investigation report or summary of verbal counseling be placed in the faculty member’s personnel file. 

 

It is important to note that by law, the District must maintain in a separate investigation file any investigative reports that do not result in discipline, as is the case in our scenario, in a secure location in Human Resources. These records shall remain separated from the personnel file but kept in HR for the period required by the  Department of Education’s regulation, currently seven years for Title IX complaints and five years for Title V complaints.

 

If you find yourself the subject of an Investigation, please contact me immediately to discuss your situation, prepare for interviews, and ensure your rights are protected in accordance with Article L.3.0.

 

 

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November 15, 2020

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