# Title 4 — Management and Budget, Office of

## Article 4-07 — Organization of Human Resource Management Services

## Chapter 4-07-20.2 — Appeals of Discrimination or Reprisal

Discrimination in Employment
Agency Appointing Authority
Management Services
Services
### § 4-07-20.2-01. Scope of chapter.

This chapter applies to applicants for positions classified by human resource management
services, probationary employees or regular employees in classified positions who want to appeal
reprisal or who want to appeal discrimination in employment because of race, color, religion, sex,
national origin, age, genetics, the presence of any mental or physical disability, status with respect to
marriage or public assistance, participation in lawful activity off the employer's premises during
nonworking hours which is not in direct conflict with the essential business-related interests of the
employer, or political opinions or affiliations.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.2-01.1. Employees not in the classified service may appeal claims of reprisal.

This chapter also applies to employees not in the classified service who appeal a claim of reprisal
under subsection 5 of North Dakota Century Code section 34-11.1-04.
History: Effective July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 34-11.1-04(5)
### § 4-07-20.2-02. Definitions.

The terms used throughout this chapter have the same meaning as in North Dakota Century Code
chapter 54-44.3, except:
1. "Applicant" means a person who has applied for a position classified by human resource
management services and who has complied with the application procedures required by the
employing agency.
2. "Date of service" means the date the notice was mailed or the date transmitted by electronic
means, or absent proof of the date of mailing or delivery of electronic means, the date of
actual delivery.
3. "Regular employee" means a person who has completed the probationary period and who is
or was in a position classified by human resource management services at the time the
alleged action occurred.

4. "Working days" means Monday through Friday exclusive of holidays.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.2-03. Statutory definitions.

Unless otherwise defined, or made inappropriate by context, all words used in this chapter have
meanings given to them under North Dakota Century Code chapter 14-02.4 and subsection 5 of North
Dakota Century Code section 34-11.1-04.
History: Effective November 1, 1996; amended effective July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2
### § 4-07-20.2-04. Applicants, probationary employees, or regular employees may appeal reprisal

or discrimination in employment.
Applicants for positions classified by human resource management services and probationary or
regular employees in classified positions may appeal reprisal or may appeal discrimination in
employment because of race, color, religion, sex, national origin, age, genetics, the presence of any
mental or physical disability, status with respect to marriage or public assistance, participation in lawful
activity off the employer's premises during nonworking hours which is not in direct conflict with the
essential business-related interests of the employer, or political opinions or affiliations.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.2-04.1. Procedure for applicant appeals of discrimination or reprisal in employment

to agency appointing authority.
1. An applicant who has completed a timely and properly completed application for a classified
position within an agency and who alleges discrimination or reprisal in employment shall file a
written appeal to the agency appointing authority. The letter of appeal must specify what
alleged discriminatory or reprisal action against the applicant was taken by the agency. The
appeal information must be delivered, mailed, or transmitted by electronic means and must be
received in the office of the agency appointing authority by five p.m. within fifteen working
days of the alleged discriminatory or reprisal action.
2. The agency appointing authority has fifteen working days from the receipt of the appeal to
review the appeal and provide a written response to the applicant.
3. If the applicant does not agree with the response of the agency appointing authority, the
applicant may further appeal to human resource management services in accordance with
section 4-07-20.2-07.
History: Effective July 1, 2008; amended effective July 1, 2010.
General Authority: NDCC 54-44.3-12
Law Implemented: NDCC 54-44.3-12
### § 4-07-20.2-05. Completion of agency grievance process prior to appeal to human resource

management services.
A probationary or regular employee shall complete the agency grievance process prior to
submitting an appeal to human resource management services for an appeal hearing, unless a waiver

is granted as provided for in section 4-07-20.2-06. The employee shall begin the agency grievance
procedure within fifteen working days from the date of the alleged discriminatory or reprisal action.
Failure to begin the procedure within time limitations may cause the employee to lose the right to
appeal to human resource management services. The agency appointing authority or designee, for
good cause shown, may waive the time limitations for filing a grievance. Good cause means those
circumstances that reasonably and without any fault on the part of the grievant prevented the filing of a
grievance in a timely fashion. In no event may a grievance be deemed timely after sixty days have
elapsed from the date of the employer action. If an agency does not have an established written
grievance procedure, the employee shall submit the appeal to human resource management services
within fifteen working days from the date of the alleged discriminatory or reprisal action.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.2-06. Waiver of agency grievance procedure.

A waiver of the agency grievance procedure is allowed by mutual agreement of the probationary or
regular employee and appointing authority. The waiver must be signed by both parties within fifteen
working days of the alleged discriminatory or reprisal action. Upon obtaining the waiver, the employee
may appeal directly to human resource management services in accordance with section 4-07-20.2-07.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.2-07. Procedure for appeals of discrimination or reprisal to human resource

management services.
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.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2
