North Dakota Administrative Code › Title 4 - Management and Budget, Office of › Article 4-07 - Organization of Human Resource Management Services › Chapter 4-07-20.2 - Appeals of Discrimination › Section 4-07-20.2-07 - Procedure for appeals of discrimination or reprisal to human resource management services

Current through Supplement No. 393, July, 2024
1. A probationary
				or regular employee shall file the properly completed prescribed appeal form
				with the director, human resource management services. The appeal form must be
				delivered, mailed, or transmitted by electronic means and must be received in
				the human resource management services office by five p.m. within fifteen
				working days of service of the notice of results of the agency grievance
				procedure or within fifteen working days from the date of the waiver. An
				additional fifteen working days is not available if the requested waiver is
				denied. The date of service of the notice shall be considered to be the date
				the notice was mailed or the date transmitted by electronic means, or absent
				proof of the date of mailing or delivery through electronic means, the date of
				actual delivery. The agency shall prepare a certificate of service, or provide
				reliable means, to show proof of the date of mailing, transmittal by electronic
				means, or hand delivery.
2. An
				applicant shall file the appeal form by delivery, mail, or transmittal by
				electronic means, and the form must be received in the human resource
				management services office by five p.m. within fifteen working days of the
				service of notice of the agency appointing authority's response to the alleged
				discriminatory or reprisal action. The date of service of the notice shall be
				considered to be the date the notice was mailed or the date transmitted by
				electronic means, or absent proof of the date of mailing or delivery through
				electronic means, the date of actual delivery. The agency shall prepare a
				certificate of service, or provide reliable means, to show proof of the date of
				mailing, transmittal by electronic means, or hand delivery.
3. An employee in a nonclassified position
				may appeal claims of reprisal by filing the properly completed prescribed
				appeal form with the director, human resource management services. The appeal
				form must be delivered, mailed, or transmitted by electronic means and must be
				received in the human resource management services office by five p.m. within
				fifteen working days of service of the notice of results of the agency
				grievance procedure, or within fifteen working days of the date of the reprisal
				action if an agency does not have an established grievance process. When an
				employee is using an agency internal grievance procedure, the date of service
				of the notice shall be considered to be the date the notice was mailed or the
				date transmitted by electronic means, or absent proof of the date of mailing or
				delivery through electronic means, the date of actual delivery. The agency
				shall prepare a certificate of service, or provide reliable means, to show
				proof of the date of mailing, transmittal by electronic means, or hand
				delivery.
4. The director, human
				resource management services, shall within two working days submit a written
				request to the director, office of administrative hearings, to conduct a
				hearing on behalf of human resource management services and shall forward a
				copy of the appeal form to the affected appointing authority.
5. The administrative law judge shall
				initially consider whether the appeal was filed within required time
				limitations. If the administrative law judge determines the time limitations
				have not been met, the administrative law judge shall prepare an appropriate
				order dismissing the appeal, which shall be final, and provide a copy of it to
				the parties. The administrative law judge may, for good cause shown, waive the
				time limitations for filing an appeal. Good cause means those circumstances
				that reasonably and without any fault on the part of the appellant prevented
				the filing of an appeal in a timely fashion. In no event may an appeal be
				deemed timely after sixty days have elapsed from the date of the employer
				action.
6. The administrative law
				judge shall consider whether human resource management services has
				jurisdiction over the subject matter of the appeal and whether all rules and
				regulations were followed in the internal agency grievance process. If the
				administrative law judge is unable to establish whether human resource
				management services has jurisdiction over the subject matter of the appeal or
				whether the appropriate rules were followed, a hearing may be conducted to
				ascertain the facts related to those issues.
7. If the administrative law judge determines
				that human resource management services does not have jurisdiction in the
				matter of the appeal, the administrative law judge shall prepare findings of
				fact and conclusions of law, if appropriate; issue a final decision dismissing
				the appeal; and provide a copy of them to the parties.
8. If it is determined that human resource
				management services has jurisdiction over the appeal, the administrative law
				judge shall schedule a hearing. The administrative law judge shall conduct the
				hearing and related proceedings, receive evidence related to the issues,
				prepare findings of fact and conclusions of law, and issue a final decision.
9. The administrative law judge
				shall notify the employee or the applicant and the affected appointing
				authority of the final decision by sending each of them the findings of fact,
				conclusions of law, and final decision. Notification shall be accomplished in
				the same manner as for notification of final orders required by subsection 3 of
				North Dakota Century Code section
				28-32-39. The parties shall
				implement the final decision within any time periods specified by the
				administrative law judge.
10. The
				administrative law judge shall return the completed appeal file to human
				resource management services.
11.
				Any party to the appeal may review the recordings of the hearing by making a
				request to human resource management services.
General Authority: NDCC
					 54-44.3-12(1)
Law Implemented: NDCC
					 34-11.1-04(5),
					 54-44.3-12.2