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Employee Title IX Policy - Investigation and Resolution Process

XI. Investigation and Resolution Process

The University investigates and resolves issues related to Formal Complaints of prohibited conduct, and any other related violations. While the parties involved will have certain procedural rights, the procedure described is an administrative process and not intended to constitute a legal proceeding. The University shall use the process described below to determine facts and responsibility for the disclosed conduct by impartially weighing the credibility of the evidence and whether it meets the preponderance of evidence standard.

Notice of Formal Complaint and Commencement of Process/Dismissal of Complaint:

  1. A Complainant may make a Formal Complaint of prohibited conduct if they are participating in or attempting to participate in the University’s Education Program or Activity at the time the Formal Complaint is made.  Alternatively, the Title IX Coordinator may file a Formal Complaint on behalf of a Complainant. 

  1. The Title IX Coordinator will ask the Complainant questions to gather information related to jurisdiction for the Formal Complaint and will then evaluate the available information surrounding the Formal Complaint to determine whether:  (a) the conduct could, if proved, constitute a violation of Title IX Sexual Harassment; (b) the conduct occurred in the University’s Education Program or Activity, and (c) the conduct occurred in the United States.  If all three of the conditions above are met, the Formal Complaint will proceed under the Title IX Process.  If any of the conditions are not met, the Formal Complaint must be dismissed under the Title IX Process but will be forwarded to the Associate Vice President of Human Resources for review under other University policies.  The decision to dismiss a Formal Complaint under this Policy and/or to refer disclosed conduct to Human Resources will be communicated in writing to the Complainant generally within (3) days of receipt of the Formal Complaint and is subject to appeal as provided in Section XIII.

  1. If the requirements of Paragraph 2 are met for a Title IX Process to commence, the Title IX Coordinator will provide both the Complainant and Respondent with a written notice of allegations in the Formal Complaint that includes (a) a description of the Title IX Process (b) sufficient details of the disclosed conduct constituting a violation of the Policy to prepare a response, including the identities of the parties, if known, the disclosed conduct which could be a violation of the Policy, and the date and location of the disclosed conduct, (c) the potential Policy violations at issue; (d) a statement that the Respondent is presumed not responsible for the disclosed conduct and that a determination regarding responsibility is made at the conclusion of the Title IX Process; (e) the name of the assigned investigator and an opportunity to object to the investigator on the basis of bias or conflict of interest; (f) a statement that the party may have an Advisor of their choice, who may be but is not required to be an attorney, and that if the party does not have an Advisor present at the Decision Panel Meeting, the University will provide them an Advisor to ask questions of the other party and Witnesses; (g) a statement that the parties may inspect and review evidence at the conclusion of the investigation phase; (h) a statement about preservation of evidence; and (i) the prohibition against retaliation. Typically, the parties will receive notice of the allegations in the Formal Complaint within three (3) business days of the date the Formal Complaint was received by the Title IX Coordinator. If, in the course of the investigation of the Formal Complaint, information is gathered that indicates that additional violations may warrant investigation as well, the Title IX Coordinator will send revised notice to the parties to include those potential violations.  After notifying the Respondent of the Formal Complaint, the Title IX Coordinator will also meet with the Respondent to explain the investigation/adjudication process, available resources, and Supportive Measures.

  1. If a Complainant or Respondent believes that the assigned investigator(s) may have a conflict of interest or bias which could result in their inability to provide a fair investigation to the Complainant or Respondent, the Complainant or Respondent should notify the Title IX Coordinator immediately, in writing, of this concern, including an explanation or reason for the conflict of interest or bias. If the Title IX Coordinator determines an actual conflict exists, the Title IX Coordinator will assign a new investigator.

  1. At any time during the investigation or Decision Panel Meeting, certain circumstances may occur that make dismissal of a Formal Complaint appropriate, including written notification to the Title IX Coordinator that the Complainant wishes to withdraw the Formal Complaint, the Respondent is no longer employed by the University, or specific circumstances prevent the University from gathering evidence sufficient to make a determination of responsibility for the disclosed conduct.  In such cases, written notice of the decision to dismiss will be provided to the parties, and such decision is subject to appeal as provided in Section XIII of this Policy.

  1. For a Formal Complaint that is dismissed under this subsection which is subsequently found after full investigation pursuant to other University policy to constitute severe or pervasive harassment based on sex (including sexual orientation, gender identity, or gender expression), the Formal Complaint will be reinstated to determine any responsibility under this Policy in accordance with the provisions below.

Investigation of a Formal Complaint:

  1. The investigators shall conduct a fair, impartial and thorough investigation, which may include, but is not limited to, interviews or written statements with the Complainant, the Respondent, and relevant Witnesses, as well as collection of available evidence, including electronic and social media communications, documents, photographs, and communications between the parties. The investigation is designed to provide both parties a full, equal, and fair opportunity to be heard, to submit relevant inculpatory or exculpatory information, and to identify fact or expert witnesses.  Neither party’s ability to discuss the disclosed conduct under investigation or to gather and present relevant evidence will be restricted.  

  1. The Complainant and the Respondent are encouraged to have an Advisor(s) to assist during the investigation and adjudication of a Formal Complaint. The Advisor may be an attorney. The University will provide a list of trained Advisors from its administrative staff, and can assist in connecting the Employee and an Advisor from the list if requested by an Employee. An Advisor accompanying an Employee at any meeting may provide support, guidance or advice to the Employee during the meeting, but may not otherwise participate in the meeting except as provided below regarding questioning during a Decision Panel Meeting in the Title IX Process or unless requested to do so by the University.  An Advisor may not in any manner delay, disrupt, or interfere with meetings and/or proceedings. Advisors should plan to make themselves reasonably available, and the University will not unduly delay the scheduling of meetings or proceedings based on the Advisor’s unavailability. An Advisor may be asked to meet with a University administrator in advance of any participation in the proceedings to understand the expectations of the role, privacy considerations, and appropriate decorum.  Advisors who are unable or unwilling to adhere to the University’s expectations may not be permitted to continue participating in the Title IX Process.

  1. The University, not the parties, is responsible for the burden of proof and the burden of gathering relevant evidence to the extent reasonably possible. Both the Complainant and Respondent will be asked to identify Witnesses and provide other relevant information, such as documents, communications, photographs, and other evidence. Both parties are encouraged to provide all relevant information in a timely manner to facilitate prompt resolution. In the event that a party declines or delays in voluntarily providing material information, the University’s ability to conduct a prompt, thorough, and equitable investigation may be impacted.  All parties or Witnesses whose participation is invited or expected will be provided written notice of the date, time, location, participants, and purpose of all meetings, including investigative interviews or Decision Panel Meetings, with sufficient time for the party to prepare to participate.

  1. The investigators may visit relevant sites or locations and record observations through written, photographic, or other means. In some cases, the investigators may consult medical, forensic, technological, or other experts when expertise on a topic is needed in order to achieve a fuller understanding of the issues under investigation. The University will not consider polygraph results.

  2. In general, the University cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, attorney, clergy member, or other recognized professional or paraprofessional acting or assisting in that capacity, and which are maintained in connection with the provision of services to the party, unless that party gives their voluntary, written consent to do so.   In those instances, the relevant information from the records must be shared with the other party.

  1. The investigators will review all information identified or provided by the parties and will determine the relevance of the information developed or received during the investigation. 

  1. Prior or subsequent conduct of the Respondent may be considered in determining pattern, knowledge, intent, motive, or absence of mistake. For example, evidence of a pattern of prohibited conduct by the Respondent, either before or after the incident in question, regardless of whether there has been a prior finding of a policy violation, may be deemed relevant to the determination of responsibility for the prohibited conduct under investigation. The determination of relevance of pattern evidence will be based on an assessment of whether the previous or subsequent conduct was substantially similar to the conduct under investigation or indicates a pattern of similar prohibited conduct. The investigators (and the Decision Panel chair during a Decision Panel Meeting) will determine the relevance of this information and both parties will be informed if evidence of prior or subsequent conduct is deemed relevant.

  1. The sexual history of the Complainant is not relevant, except in two circumstances:  (1) to show that someone other than Respondent committed the conduct; and, (2) where the Respondent alleges the sexual contact was consensual, evidence of the manner and nature of how the parties communicated consent in the past may be relevant in assessing whether consent was communicated in the reported conduct.  As set forth in the consent definition, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent and, even in the context of a relationship, consent to one sexual act does not constitute consent to another sexual act, and consent on one occasion does not constitute consent on a subsequent occasion. 

  1. The University expects all members of the University community to cooperate fully with the investigation and Title IX Process. It is understood that there may be circumstances in which a Complainant or Respondent wish to limit their participation, and the University will respect the choice of the Complainant or Respondent as to how to engage in the Title IX Process. The University may, however, move forward with the investigation without the participation of a party or parties.  No adverse inference will be drawn from a party’s election to not participate in the Title IX Process.

  1. The University may consolidate Formal Complaints of prohibited conduct against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the prohibited conduct arises out of the same facts or circumstances. 

  1. At the conclusion of the fact-gathering portion of the investigation, the investigators will provide to each party and their Advisor, if any, the opportunity to review evidence that is directly related to the disclosed prohibited conduct, including any evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence, whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.  The parties will have ten (10) business days to submit a written response, which the investigators will consider prior to completion of the investigative report. The investigators will consider requests made in writing for additional Witnesses or submission of new evidence, and the investigators will provide each party notice of the submission of additional information and provide an abbreviated opportunity to review and respond. The investigators will also consider written requests for additional time to review the evidence.    The Complainant and Respondent are not permitted to remove evidence from its secure physical location, nor make copies, downloads, screenshots, printouts, photographs, or any other reproduction electronic or otherwise, of the information provided for review.

  1. The investigators will prepare an investigative report that fairly summarizes relevant evidence, both inculpatory and exculpatory, and provide the Complainant and Respondent, and their Advisors, with an opportunity to review the investigative report and provide a written response. Access to the final investigative report will be provided to each party and their Advisor, if any, at least ten (10) business days prior to the Decision Panel Meeting for the parties’ review and written response.

Decision Panel Meeting and Determination Regarding Responsibility:

  1. Upon completion of the investigation of a Formal Complaint, the Title IX Coordinator shall assign a Decision Panel consisting of three (3) members (including the Decision Panel Chair) to hold a live meeting (“Decision Panel Meeting”) during which they will review evidence and hear live statements from the parties and Witnesses including answers to relevant questions. The Title IX Coordinator will provide the parties and all Witnesses who will be requested to participate written notice including details on the date, time, and location of the Decision Panel Meeting, the anticipated Witness list, and the names of the Decision Panel members, at least ten (10) business days in advance of the Decision Panel Meeting.  The Title IX Coordinator will consider written requests from either party for a reasonable delay in the date of the Decision Panel Meeting, if such delay is necessary to maintain the fairness and integrity of the Title IX Process.  The request must be made no later than three (3) business days before the original scheduled date of the Decision Panel Meeting. 

  1. A party may add Witness(es) to the list of those named in the notice only if they were not known at the time of the completion of the final investigative report.  The party must provide the Witness’s name, contact information (if not a University Student or Employee), an explanation of why the Witness was previously unavailable, and a brief description of what information the Witness is expected to provide at the Decision Panel Meeting, at least three (3) business days prior to the date of the Decision Panel Meeting.  The Witness will be interviewed by the investigators and an addendum to the investigative report completed.  The Title IX Coordinator has the discretion to reschedule the Decision Panel Meeting to allow the parties equal and timely access to any new information.

  1. If a Complainant or Respondent believes that an assigned Decision Panel member may have a conflict of interest or bias which could result in their inability to provide a fair determination regarding responsibility and/or sanctions to the Complainant or Respondent, the Complainant or Respondent should notify the Title IX Coordinator immediately, in writing, of this concern, including an explanation or reason for the conflict of interest or bias. If the Title IX Coordinator determines an actual conflict exists, the Title IX Coordinator will assign a new Decision Panel member.

  1. The Decision Panel Meeting will be conducted with the parties located in separate rooms with technology enabling the Decision Panel and participants to simultaneously see and hear each other.  However, if all parties and the Title IX Coordinator agree, the Decision Panel Meeting may alternately be conducted with all parties physically present in the same location.  An audio or audiovisual recording or transcript of the Decision Panel Meeting will be created and maintained by the Title IX Administrators and will be available to the parties for inspection and review. 

  1. Decision Panel Meetings shall not be publicized or open to the public; only participants in the meeting (Decision Panel members, the parties, their respective Advisors, and Witnesses), the Title IX Coordinator, or another University Employee as deemed appropriate by the Title IX Coordinator  may be present. All participants shall hold matters relating to the Decision Panel Meeting in strict confidence. Witnesses are not permitted to attend Decision Panel Meetings to observe; their role is limited to giving their statements and answering questions. 

  1. The Complainant and Respondent shall have the opportunity to attend the hearing and to hear and respond to evidence and questions posed by the Decision Panel, and will be provided copies of all directly related evidence for reference at the hearing. The Complainant and Respondent may not directly question one another.  However, each party’s Advisor is permitted to directly ask the other party and any Witnesses relevant questions and follow up questions, provided that the Decision Panel will determine whether any question to be asked by an Advisor is relevant prior to the party or Witness answering.  If a question is determined to not be relevant, the Decision Panel chair will explain the decision to exclude the question.  If a party does not have an Advisor present at the Decision Panel Meeting, the University will provide a trained member of its administrative staff at no cost to the party to serve as the party’s Advisor for purposes of asking questions of the other party and Witnesses during the Decision Panel Meeting.

  1. If a party or witness does not submit to questioning by the other party’s advisors at the hearing, the Hearing Officer may exercise their judgment in evaluating whether their statements have a sufficient indicia of reliability to be admissible, and if so, in evaluating what weight, if any, to give to the statements of a party or witness not subject to cross-examination. In determining the relevance, admissibility, and weight, the Hearing Officer may consider longstanding principles of jurisprudence and evidence.  The Hearing Officer may not draw any adverse inference from the decision of a party or witness to not participate at the hearing.  If deemed reliable and relevant by the decision-maker, and not otherwise subject to exclusion under this Policy, the decision-maker may consider the statements of persons who were not present at the hearing, or persons who were present at the hearing but who nevertheless were not subject to cross-examination.  This includes, but is not limited to, opinions and statements in police reports or other official reports, medical records, court records and filings, investigation notes of interviews, emails, written statements, affidavits, text messages, social media postings, and the like.

  1. At the conclusion of the Decision Panel Meeting, the Decision Panel will assess the credibility and weight of the evidence and make a determination regarding responsibility for a violation of University Policy.  If the Decision Panel determines that the Respondent is responsible for violation of University Policy, it will also make a determination regarding appropriate disciplinary action to be taken (see Section XII Disciplinary Actions below).  The Complainant may submit a statement about the impact of the prohibited conduct on them to the Decision Panel for consideration in its determination regarding disciplinary action, and the Respondent may submit a statement about factors that could mitigate the disciplinary action taken.  Decisions regarding responsibility will be made by a preponderance of the evidence standard by majority vote of the Decision Panel.  The decisions regarding responsibility and disciplinary action will be provided simultaneously in writing to the Complainant and Respondent and will include (a) identification of the disclosed prohibited conduct; (b) a description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and Witnesses, site visits, methods used to gather other evidence, and meetings held; (c) findings of fact supporting the determination; (d) conclusions regarding the application of this Policy to the facts; (e) a statement of, and rationale for, the result as to each potential violation of University Policy, including a determination regarding responsibility, any disciplinary action to be issued to the Respondent, and whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided to the Complainant; and (f) the procedures and permissible bases for the Complainant and Respondent to appeal.