Conduct that Does Not Fall Under Title IX of the Education Amendments of 1972 - Formal Investigations in Which a Student is the Complainant and an Employee is the Respondent

The following is a description of the rights and options available in formal investigations in which the complainant is a student, the respondent is an employee, and the conduct does not fall under Title IX of the Education Amendments of 1972.

a. Advisor of Choice

In addition to the Administrative Support Person assigned to students when particular reports of sexual and related misconduct are received (see Section VII(A), “Assignment of an Administrative Support Person to Students”), the complainant and respondent may each be accompanied by an Advisor of Choice during any meeting under this policy. The Advisor of Choice may assist, advise, and support the party throughout this formal investigation process and be present for related meetings or proceedings. For conduct falling under this portion of the policy, VIII(C)(2)(a), Advisors of Choice are not permitted to communicate with University officials participating in this formal investigation process. The decision on whether to select an Advisor of Choice is solely that of the complainant or respondent. A person may not serve as an Advisor of Choice if they are involved in the underlying matter, including serving as a party or potential witness.

The availability of an Advisor of Choice to attend a meeting, interview, or hearing shall not unreasonably interfere with or delay the proceedings. If the Advisor of Choice’s conduct is not consistent with these guidelines, they may be excluded from the University’s investigation and adjudication process.

b. Requesting the University Not Investigate

If a person reports an incident of sexual or related misconduct to a non-Confidential Resource at the University but wishes not to participate as a party or witness, or does not want the University to proceed with a formal investigation, the University will attempt to honor that person’s wishes. Please note that:

• For instances in which an ASP is customarily assigned to a student, the University may assign an ASP to the complainant even if a formal investigation is not conducted;
• The University will take all reasonable steps to respond to the report consistent with the complainant’s request and will determine whether supportive measures are appropriate or necessary;
• The University will consider broader remedial action, such as increased monitoring, supervision of security at locations where the reported sexual and related misconduct occurred, increased training, education, and prevention efforts, and conducting climate surveys; and
• By honoring the request, the University will not be able to meaningfully investigate and pursue misconduct or disciplinary proceedings to find anyone responsible for the violation.

In limited circumstances, the University may be unable to honor a request that it not investigate a report of sexual or related misconduct. The University may conduct its own investigation when it determines in good faith that it is in the best interest of the reporting party or University community to do so. In these instances, the University will serve as the complainant in the matter. The reporting party will, though, receive all notices issued under this Policy and Procedures.

When deciding whether the request can be honored, the University will weigh that request against its obligation to provide a safe, non-discriminatory environment for the University community.

The factors considered when determining whether the University has an overriding responsibility to proceed despite a reporting party’s wishes include:

• Whether the accused has a history of violent behavior or is a repeat offender;
• Whether the incident represents escalation in unlawful conduct by the accused from previously noted behavior;
• The increased risk that the accused will commit additional acts of violence;
• Whether the accused used a weapon or force;
• Whether the reporting individual is a minor;
• Whether the institution possesses other means to obtain evidence such as security footage; and
• Whether available information reveals a pattern of perpetration at a given location or by a particular group.

If possible, the University will make attempts to inform the reporting party prior to proceeding with an investigation in which the University is the complainant. The University may proceed with an investigation and adjudication process in which a respondent could be found responsible for a policy violation even though a complainant does not participate in the process and does not want to proceed.

Under certain circumstances, the University may be required by law to report and/or file a complaint with external authorities. However, any complainant or witness can decide whether or not to cooperate with the external authority (e.g., law enforcement).

c. Sexual Assault Public Awareness Events

The University is not obligated to begin an investigation based on information a person shares during public awareness events designed to be safe spaces for people to share their experiences. These events could include candlelight vigils, “Take Back the Night” events, protests, or other public events. The University may decide to use the information learned to inform its efforts for additional education and prevention efforts.

d. Formal Investigations

The following portion of the Policy and Procedures describes the rights and options available to parties once the formal investigation begins. The Title IX Office, or their designee, will prepare a Formal Complaint letter for the complainant to sign. The signed Formal Complaint will initiate the formal investigation process.

1. Notification of Proceedings and Meetings

If the complainant selects the Formal Resolution Process, the complainant and respondent will be:

• Informed that there is a formal investigation into the conduct in question;
• Given notice describing the date, time, and location of the reported misconduct, if known, as well as relevant facts pertaining to the elements of the behavior that will be evaluated;
• Informed of the portions of the Policy and Procedures the behavior may violate;
• Informed of the possible sanctions;
• Notified that they will be provided the time and place for all meetings in relation to the University’s investigation and adjudication process.

The University will ensure that complainants and respondents are afforded the right to a fair process during the formal investigation and throughout the Formal Resolution Process.

2. Individuals Conducting the Investigation and Adjudication Process

Trained, qualified investigators will serve as fact finders during the formal investigation phase. The Labor and Employee Relations Specialist / HR Deputy Title IX Coordinator, Title IX Coordinator, or their designee, conducts investigations into reports in which a student is the complainant and a faculty member, staff member, or administrator is the respondent.

The investigator will handle complaints impartially and objectively, perform fact finding, and follow all relevant procedures. The investigator evaluates information based upon the nature and context of the conduct after assessing the credibility of witnesses and weighing the relevant information obtained. If there is a significant conflict of interest in which the investigator cannot be impartial, another investigator will be assigned to the investigation.

In matters involving faculty, staff, or administrators as respondents, the Labor and Employee Relations Specialist / HR Deputy Title IX Coordinator, Title IX Coordinator, or their designee, will make a finding of the facts and make a recommendation for resolution to either the area Vice President, or their designee, or the appropriate decision-maker as per the applicable collective bargaining agreement or University Statutes. The applicable decision-maker has the authority and responsibility to impose discipline or any other resolution they deem appropriate based upon the circumstances and severity of the findings of fact.

3. Use of a Designee as the Fact Finder

The University may, at its discretion, designate trained, experienced people to act as the fact finder. Administrators involved in the formal investigation process receive training, at least annually, on issues regarding sexual and related misconduct, including sexual assault, sexual harassment, dating violence, domestic violence, and stalking. These administrators are also trained in conducting an investigation that protects the safety of the participants, ensures fairness, and promotes accountability.

4. Information and Evidence Used During the Formal Investigation Process

The formal investigation process is designed to obtain information that will be used to determine: (1) the conduct that occurred; and (2) whether that conduct violates the terms of the Policy and Procedures.

i. Presumption of “Not Responsible” for Violating the Policy: The respondent is presumed not to have violated the Policy and Procedures until an outcome is issued.

ii. The “Preponderance of Evidence” Standard of Review: The evidentiary standard in determining the facts will be based upon the preponderance of the evidence standard (i.e. that it is more likely than not that the alleged misconduct occurred).

iii. Opportunity to Review Evidence and Offer Information: The parties are provided an opportunity to review and present relevant evidence. Evidence must be relevant to the allegation. A meaningful opportunity to respond to the evidence includes providing reasonable opportunity to provide responsive evidence and information. The opportunity to review evidence is subject to applicable federal, state, and local laws.

iv. Past Findings: Past findings of misconduct may only be considered in the portion of the adjudication process in which the sanction is determined.

v. Prior Sexual History/Mental Health Diagnosis: Generally, a party or witness’ prior sexual history or mental health diagnosis and/or treatment may not be introduced during the investigation or adjudication phase. Determinations on exclusions and redactions of such information during the investigative phase are made by the investigator.

5. Possible Sanctions

Employees. Possible sanctions for employees include, but are not limited to, a letter of reprimand or warning letter, mandatory training, a reduction in pay, probation, suspension, termination of employment from the University, or other appropriate sanctions.

*When a person maintains multiple roles (i.e., student and employee), a determination of the person’s status in a particular situation will be made in the context of the surrounding facts. Where an individual represents both roles in a matter, employee and student sanctions may be issued.

6. Remedies

In addition to possible disciplinary or conduct sanctions, the University may impose supplemental remedies in accordance with applicable collective bargaining agreements, University statutes, or other University policies.

7. Notification of Outcome

Both the complainant and the respondent will be simultaneously advised in writing of the outcome, including:

• Written notice of the findings of fact;
• Decision and any sanctions;
• Rationale for the decision and any sanctions; and
• Information on how to file an appeal.

Disclosure of Outcomes: The University considers Gender Equity and Title IX matters to be sensitive and private. Unless required by law, the University does not publicly release underlying information regarding investigations. Disclosures of facts to witnesses shall be limited to what is reasonably necessary to conduct a fair and thorough investigation. The University does not provide witnesses with the resolution of the proceeding. Participants in an investigation shall be advised that maintaining confidentiality is essential to protecting the integrity of the investigation and will be advised that it is usually best to refrain from discussing the matter during the pending investigation. After the parties are provided with the outcome, either party may choose to disclose or discuss the outcome of the Formal Resolution Process.

8. Time Frame for Investigation and Resolution

While the time to resolve a reported incident will vary from matter to matter depending on the specific facts and circumstances, it is expected that in most instances Formal Complaints will be resolved within 120 business days of the day the complainant requests that the University’s investigation and adjudication processes commence. If these processes will take longer than 120 business days, both the complainant and the respondent will be notified in writing as to the delay and the reason for the delay. Delay can sometimes, but not always, be imposed by complexity of the Formal Complaint, holiday closures of the University, breaks in class schedule, midterm and final examinations, the need to coordinate multiple parties for interview meetings and hearings, or other appropriate reasons as determined by the University.