7.5 Grievance Process for Formal Complaints of Sexual Harassment

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Equity in the Grievance Process

The grievance process treats complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent and by following the grievance process before the imposition of any disciplinary sanctions or other actions that are not supportive measures. Respondents are presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

The Title IX Coordinator, Alternate Title IX Coordinator, investigator(s), any decision- maker(s), including any Adjudicator and the Appeal Board member, and any person designated to facilitate an information resolution process may not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.  

Written Notice of Allegations

Upon receipt of a formal complaint, the Title IX Coordinator will provide written notice to known parties that includes the following:

  1. notice of this grievance process;
  2. notice of the allegations of sexual harassment with sufficient details known at the time, including,
    1. the identities of the known parties involved in the incident,
    2. the conduct allegedly constituting sexual harassment, and
    3. the date and location of the alleged incident, if known;
  3. a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
  4. notice that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney consistent with Section 7.5.7.2 below;
  5. notice that the parties may inspect, and review evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint consistent with Section 7.5.7.5 below;
  6. notice of any provision in the College’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process; and
  7. notice that making a good faith formal complaint that is not later substantiated does not constitute providing false or misleading information.

Written notice will be provided with sufficient time to prepare a response before any initial interview.

If, in the course of the investigation, the College decides to investigate allegations about the complainant or respondent that were not included in the written notice provided above, the Title IX Coordinator will provide written notice of the additional allegations to known parties.

Dismissal of Formal Complaint

While the College will investigate the allegations in formal complaints of sexual harassment, it will dismiss a formal complaint where the conduct alleged:

  1. would not constitute sexual harassment, even if proved;
  2. did not occur in the College’s education program or activity—i.e., locations or events, or under circumstances over which the College exercises substantial control over both the respondent and the context in which the sexual harassment occurs, including any building owned or controlled by a student organization that is officially recognized by the College; or
  3. did not occur against a person in the United States.
    Such mandatory dismissal, however, does not preclude action under another provision of the College’s code of conduct.

The College may dismiss a formal complaint or any allegation therein, if at any time during the investigation or hearing:

  1. a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
  2. the respondent is no longer enrolled or employed by the College; or
  3. specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
    For example, where the identity of a complainant is not disclosed, the College may not be able to gather evidence necessary to establish the elements of sexual harassment, such as whether the alleged conduct was unwelcome or without consent. In such instances, discretionary dismissal may be appropriate.
    The Title IX Coordinator will make determinations regarding dismissal and will promptly notify the parties in writing of any dismissal and the reasons, therefore.

Time Frame and Temporary Delays

Upon receipt of a sexual harassment complaint, the College will exercise good faith to investigate and conclude the grievance process in a reasonably prompt time frame.

  1. Once a formal complaint of sexual harassment has been made, an investigation into the complaint will be conducted by the investigator(s) within sixty (60) days of the complaint being made.
  2. Consistent with Section 7.5.7.5, prior to the completion of the investigative report (see Section 7.5.7.6), the Title IX Coordinator will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in electronic format or hard copy, with any redactions required by the Family Educational Rights and Privacy Act (“FERPA”). The parties will have ten (10) days to submit a written response, which the investigator(s) will consider prior to completion of the investigative report.
  3. Consistent with Section 7.5.7.6, the investigator(s) will create an investigative report that fairly summarizes relevant evidence within ninety (90) days of the complaint being made.
  4. The Title IX Coordinator will send to each party and the party’s advisor, if any, a copy of the final investigative report, in electronic format or hard copy, with any redactions required by FERPA, for their review and written response within three (3) days of completing the investigative report and at least ten (10) days prior to the hearing.
  5. A hearing before the Adjudicator will be held within one hundred and twenty (120) days of the complaint being made.
  6. The Adjudicator will issue a written determination regarding responsibility within fourteen (14) days of the hearing.

Temporary delay of the grievance process or a limited extension of time frames may be permitted for good cause. Good cause may include, but is not limited to, the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The Title IX Coordinator will provide written notice to the complainant and the respondent of any temporary delay or limited extension and the reasons for such action.

Evidentiary Standard & Evidence

Determinations regarding responsibility for all formal complaints of sexual harassment, whether against a student or employee, will be made using the preponderance of the evidence standard.

Parties are provided an equal opportunity to participate fully and robustly in the investigation process by gathering and presenting evidence, including fact and expert witnesses and other evidence, reviewing the evidence gathered, responding to the investigative report that summarizes relevant evidence, and asking questions of other parties and witnesses before the Adjudicator has reached a determination regarding responsibility.

However, while not a party to the proceedings, the College bears the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility provided that the College cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the College obtains that party’s voluntary, written consent to do so.

This Policy also does not require, allow, rely upon or otherwise use questions or evidence that constitute or seek disclosure of information protected under legally recognized privilege, such as the attorney-client privilege or the doctor-patient privilege, unless the person holding such privilege waives it.

Investigator(s) must objectively and impartially gather and present any relevant evidence to the Adjudicator in an investigative report, who, in turn, must objectively and impartially evaluate relevant evidence and reach a determination regarding responsibility.

All relevant evidence discovered during this grievance process, including inculpatory and exculpatory evidence, will be evaluated on an objective basis. All credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.

Consolidation of Formal Complaints 

The College may consolidate formal complaints as to allegations of sexual harassment 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 allegations of sexual harassment arise out of the same facts or circumstances.

Where a grievance process involves more than one complainant or more than one respondent, references in this Policy to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.

Investigation of a Formal Complaint

Investigators

Following the receipt of a formal complaint of sexual harassment, the Title IX Coordinator will designate one or more investigators to conduct the investigation. Eligible investigators include faculty or staff who have been trained in this Policy and the role of an investigator. When the complaint is made against an employee, at least one of the designated investigators will be a member of the Office of Human Resources.

Investigators are responsible for objectively and impartially gathering evidence and presenting any relevant evidence to the Adjudicator in an investigative report as set forth in Section 7.5.7.6 below.

Choice of Advisor

In any related meeting or grievance proceeding, the parties have an equal opportunity to be accompanied by the advisor of their choice, who may be, but is not required to be, an attorney. An advisor may be a member of the College community, an attorney, or another individual not affiliated with the College. During any related meeting or proceeding, however, an advisor’s role is limited. Except as permitted during hearings as set forth in Section 7.5.8 below, an advisor is not permitted to engage in the grievance process on the party’s behalf or participate directly in any related meeting or proceeding. An advisor may quietly consult with his or her advisee during a related meeting or proceeding in a manner that does not disrupt or interfere with the meeting or proceeding. If an advisor fails to act in accordance with these procedures, he/she/they may be asked to leave the meeting or proceeding.

Gathering of Evidence

During  the  investigation, both  the complainant and the respondent may present written and oral statements, names of witnesses, and other evidence to the investigators. The complainant, respondent, and witnesses may be interviewed as part of the investigation. The interviews will be supplemented by the gathering of any physical, documentary, or other evidence, as appropriate and available. Follow-up interviews will be conducted by the investigators as needed.

All parties and witnesses are expected to provide truthful information. Knowingly providing false or misleading information is a violation of the College’s policy and can subject a student or employee to disciplinary action. Making a good faith report to the College that is not later substantiated does not constitute providing false or misleading information.

Any employee respondent is expected to participate and cooperate in the investigation, including submitting to any requested interview by the investigators. If an employee refuses to participate or cooperate in the investigation, that person will be subject to discipline, up to and including termination. Consistent with Section 7.4.7, the investigation may still go forward if a respondent, whether an employee or a student, refuses to participate or cooperate.

Notice of Interviews and Hearings

The College will provide written notice of the date, time, location, participants, and purposes of all investigative interviews, hearings, or other meetings, to a party whose participation is invited or expected. Such notice will be provided with sufficient time for the party to prepare to participate.

Inspection and Review of Evidence

All parties shall have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient 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. Prior to completion of the investigative report set forth in Section 7.5.7.6 below, the Title IX Coordinator will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, with any redactions required by FERPA. The parties will have at least ten (10) days to submit a written response, which the investigator(s) will consider prior to completion of the investigative report.

The College shall make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.

Investigative Report

The investigator(s) will create an investigative report that fairly summarizes relevant evidence. Within three (3) days of the completion of the final investigative report and at least ten (10) days prior to the hearing or other time of determination regarding responsibility, the Title IX Coordinator will send to each party and the party’s advisor, if any, the final investigative report in electronic format or hard copy, with any redactions required by FERPA, for their review and written response.

The final investigative report will include all the written responses provided by the parties involved, with any redactions required by FERPA.

Decision Making of Formal Complaints

Adjudicator

Prior to the finalization of the investigative report, the Title IX Coordinator will designate a third-party decision-maker trained in this Policy (“Adjudicator”) to conduct the live hearing and make a determination regarding responsibility.

The Title IX Coordinator shall provide the investigative report to the Adjudicator. The Adjudicator is responsible for reviewing the investigative report, conducting the live hearings set forth in Section 7.5.8.2, making a determination regarding responsibility, and determining remedies and sanctions. In reaching a determination, the Adjudicator will apply the preponderance of the evidence standard as set forth in Section 7.5.5. The Adjudicator will determine, based on the complete record and applying a preponderance of the evidence standard, whether or not the evidence is sufficient to support a conclusion that the conduct occurred and that there was a violation of this Policy. Following the close of the hearing, if the Adjudicator determines that there was a violation, the Adjudicator will also determine the appropriate remedies and sanctions that should be imposed consistent with Section 7.5.12. In doing so, the Adjudicator may consult with the Title IX Coordinator to obtain information about College precedent for such remedies and sanctions.

Live Hearing

Consistent with Section 7.5.4, a live hearing before the Adjudicator will be held within one hundred and twenty (120) days of the formal complaint being made.

The reporting party and the accused are entitled to the same opportunities to have others present during the hearing, including the opportunity to be accompanied by an advisor pursuant to Section 7.5.7.2.

Cross Examination

Both parties have an equal opportunity to cross examine the other party and any witnesses—i.e., to ask relevant questions and followup questions, including those challenging credibility—through his/her/their advisor. Cross examination must be conducted directly, orally, and in real time by the party’s advisor. A party may never personally cross examine another party or witnesses. If a party does not have an advisor present at the live hearing, the College will provide an advisor of the College’s choice, who may or may not be an attorney, without fee or charge, to conduct cross examination on behalf of the party.

Only relevant cross examination and other questions may be asked of a party or witness. As such, before a party or witness answers a cross examination or other question, the Adjudicator must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

Where a party or witness does not submit to cross examination at the live hearing, the Adjudicator must not rely on any statement of that party or witness in reaching a determination regarding responsibility. However, the Adjudicator cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross examination or other questions.

Cross-examination that may reveal faulty memory, mistaken beliefs, or inaccurate facts about allegations does not mean that the party answering questions is necessarily lying or making intentionally false statements. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the Adjudicator, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party.

Virtual and Remote Hearings

Live hearings may be conducted with all parties physically present in the same geographic location or, at the College’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

At the request of either party, the College will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the Adjudicator and parties to simultaneously see and hear the party or the witness answering questions.

Record of Hearing

All live hearings, whether they occur in person or virtually, will be recorded via audio or audiovisual recording or transcribed. The record shall be the property of the College. Such recording or transcript will be made available to the parties for inspection and review.

Informal Resolution

Use of Informal Resolution

Where a formal complaint is filed, and at any time prior to reaching a determination regarding responsibility, the College may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication. An informal resolution process may not be utilized unless:

  1. The parties are provided written notice that discloses the following:
    • the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and
    • any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
  2. The parties provide voluntary, written consent to the informal resolution process.
    An informal resolution process may not be utilized to resolve allegations that an employee  sexually harassed a student.

Informal Resolution Process

Where an informal resolution process may be utilized in accordance with Section 7.5.9.1 above, such process will be overseen by The Title IX Coordinator or Alternate Title IX Coordinator. The complainant and respondent have the right to an advisor as set forth in Section 7.5.7.2 above.

At any time prior to agreeing to a resolution under this process, any party may withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. In addition, any party can resume the grievance process where the party is dissatisfied with a proposed informal resolution.

As described in Section 7.4.7 above, the College may elect to pursue a formal resolution process even if the complainant does not wish to pursue a formal resolution.

Determination Regarding Responsibility

Written Determination Regarding Responsibility

The Adjudicator must issue a written determination regarding responsibility to be provided simultaneously to the parties that must include the following:

  1. Identification of the allegations potentially constituting sexual harassment;
  2. 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 hearings held;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of the College’s code of conduct to the facts;
  5. A statement of and rationale for the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the respondent, and whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided to the complainant; and
  6. The College’s procedures and permissible bases for the complainant and respondent to appeal.

The Title IX Coordinator is responsible for effective implementation of any remedies herein.

The Adjudicator will issue the written determination regarding responsibility, which will be provided simultaneously to the parties by the Title IX Coordinator within fourteen (14) days of the hearing. The complainant will be informed of any specific sanctions imposed on respondent directly relating to the complainant in a manner consistent with the requirements of FERPA. The determination regarding responsibility becomes final either on the date that the College provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

Appeal to the Appeal Board

Either the complainant or the respondent may appeal any determination and/or sanction of the Adjudicator or any dismissal of a formal complaint or any allegations therein to the Appeal Board on any of the following bases:

  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
  3. The Title IX Coordinator, Alternate Title IX Coordinator, investigator(s), or the decision-maker, including the Adjudicator, had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

Appeal Board

Upon receipt of a written request for appeal under Section 7.5.11.2, the Title IX Coordinator will designate an Appeal Board to conduct an appeal. The Appeal Board shall include three (3) members comprised of faculty and administration/support staff, all of whom have received training on this Policy. The Appeal Board may not include the investigator(s), the Title IX Coordinator, or the Adjudicator involved in the grievance process at issue.

The Appeal Board is responsible for reviewing the complete record of the investigation, the live hearing, and the determination of the Adjudicator.

Filing the Appeal

The appeal must be made in writing to the Title IX Coordinator within ten (10) days from when the party receives the written decision of the Adjudicator, including the day on which the party receives the written decision. The written appeal must include the bases for the appeal, as set forth in Section 7.5.11 above, and all relevant information and arguments in support. The Title IX Coordinator will promptly notify the other party in writing when an appeal is filed.

If an appeal is not filed within this time frame, the right to appeal is waived and the determination and/or sanction of the Adjudicator or any dismissal of a formal complaint or any allegations therein becomes final.

Review and Approval of Appeal

The Appeal Board will review the written appeal for scope and determine permissibility of the appeal, which will be limited to the bases set forth in Section 7.5.11 above, and notify the parties regarding whether the appeal is permitted or denied within ten (10) days of the written appeal.

Appeal Procedure

Upon notification that an appeal is permitted, the appellee will be provided with the written appeal and shall have ten (10) days, including the date of receipt, to respond in writing to the statement of the appellant.

The Appeal Board will determine the merit of the appeal, based on its review of the complete record and applying a preponderance of the evidence standard. Such determination shall be made by a majority vote of the Appeal Board. The Appeal Board may affirm, reverse, or modify the determination and/or sanction of the Adjudicator, or remand the matter for further investigation and/or analysis. If the matter is remanded, the process will repeat, generally beginning at the appropriate stage of the investigation or grievance process as indicated by the Appeal Board’s remand.

The written decision of the Appeal Board describing the result of the appeal and the rationale for the result will be sent simultaneously to both parties, typically within five (5) days following the Appeal Board’s determination and no more than thirty (30) days after approval of the written appeal under Section 7.5.11.3. The complainant will be informed of any specific sanctions imposed on respondent directly relating to the complainant in a manner consistent with the requirements of FERPA.

Remedies and Disciplinary Sanctions 

This grievance process treats complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent, and by following a grievance process prior to the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent.

The College is committed to taking action to eliminate all sex discrimination and sexual harassment. Where a determination of responsibility for sexual harassment has been made against the respondent, remedies are designed to restore or preserve equal access to the College’s education programs or activities, to stop the conduct, prevent its recurrence, and address it effects. Such remedies may include the same individualized services that constitute supportive measures in Section 7.4.4 above but may also be disciplinary or punitive and need not avoid burdening the respondent. To that end, when determining the appropriate remedies or sanctions to be imposed, consideration shall be given to the principle that the sanctions should be proportionate to the offense and seek to provide a remedy to the complainant and to prevent recurrence of the offense for the protection of the campus community. Any student or employee determined to be responsible for violation of this Policy should expect the imposition of remedies and/or sanctions.

Remedies and sanctions for students may include any of those set forth in the Student Handbook and Student Code of Conduct, including modification of living arrangements, dismissal, suspension, reporting to the local police, and other remedies and sanctions determined by the College to be appropriate.

Remedies and sanctions for employees may include any of those set forth in the Faculty Handbook or Staff Handbook, including termination, suspension, removal from campus, cancellation of contract, written reprimand, oral reprimand, and other remedies and sanctions determined by the College to be appropriate.