The University seeks to resolve all complaints within a reasonable time frame. All time frames expressed in this policy are meant to be guidelines rather than rigid requirements. Extenuating circumstances may arise that require the extension of time frames. Extenuating circumstances may include the complexity and scope of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, any intervening school break or vacation, or other
In general, a Complainant and Respondent can expect that the process will proceed according to the time frames provided in this Policy and accompanying procedures. The University will keep all parties updated on the status of resolution procedures throughout the process.
1. Initial Title IX Response
Upon receipt of a report, the University’s Title IX Team will conduct an initial Title IX assessment. The goal of this assessment is to provide an integrated and coordinated response to reports of sexual harassment, including sexual violence, stalking, and dating or domestic violence. The assessment will consider the nature of the report, the safety of the individual and of the campus community, and the Complainant’s expressed preference for resolution in determining the appropriate course of action to eliminate any hostile environment presented, stop the conduct at issue, prevent its recurrence, and address its effects.
Both informal and formal options are available to resolve the complaint. When a report of sexual harassment is received, the Title IX Coordinator will respond promptly to provide supportive measures and options for the resolution of complaints. The Title IX Coordinator, or designee, will contact the Complainant to discuss the availability of supportive measures regardless of filing a formal complaint and will explain the process for filing a formal complaint. A Formal Complaint is required to initiate a formal or informal process for resolution.
2. Formal Complaint
A formal complaint is a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation of sexual harassment. In order to file a formal complaint, a Complainant must physically or digitally sign the complaint, or otherwise indicate that the Complainant is the one filing the complaint and intends to file a formal complaint. A formal complaint is required to initiate either the formal resolution process, including an investigation and hearing or an informal resolution under Title IX. A Complainant cannot file a formal complaint and remain anonymous; however, a formal complaint may be filed without knowing the identity of the Respondent. A formal complaint must allege sexual harassment as defined by this policy.
3. Written Notice of Allegations
Both the Complainant and the Respondent will receive written notice of an allegation if a formal complaint is filed. This notice includes a written document to the Respondent outlining, the Complainant, the nature of the incident and how it constitutes sexual harassment (as previously defined), and information pertinent to the incident (date, time, location, etc.) if known. The Respondent is not presumed responsible for the alleged conduct, and only at the conclusion of the grievance process will there be a determination of responsibility. Both parties will at this time be made aware of their right to an advisor and detailing evidence, as well as prohibition of making false statements or providing false information. Following the filing of a formal complaint, the Title IX Coordinator will contact the Respondent and provide written notice of allegations, including sufficient details known at the time with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident (if known); the conduct allegedly constituting sexual harassment; the date and location of the alleged incident. The Written Notice of Allegations will also include options for resolution, including formal investigation and adjudication or informal resolution.
4. Informal Resolution Options
Informal resolution is an alternative dispute resolution option that is a remedies-based approach, including mediation or arbitration, and designed to eliminate a hostile environment and prevent future harassment. Both the Complainant and Respondent must submit written consent and agree on the type of informal resolution. Informal resolutions may not be used to resolve complaints submitted by students against employees. An informal resolution process does not involve a full investigation and adjudication and may be initiated at any point prior to reaching a determination regarding responsibility. The University will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the Complainant’s access to the educational and extracurricular activities at the University, eliminate any hostile environment issues, and prevent future misconduct. Other potential remedies include targeted or broad-based educational programming or training.
The Title IX Coordinator will work with the Complainant and Respondent to determine the best and most appropriate option for informal resolution based on the individual circumstances of the situation. Participation in informal resolution is voluntary, and parties can request to end informal resolution at any time, resume the formal process or choose an alternative informal process. The informal resolution process will include a document outlining action steps to address current and prevent future hostile environment concerns. Informal resolutions can include No-Contact Orders, educational requirements, and other supportive measures as well. The Title IX Coordinator will maintain records of all reports and conduct resolved through the informal resolution process. The University will keep all parties informed of the progress of the informal resolution process. Informal resolutions can never be forced upon a party for fear of retaliation.
5. Formal Resolution Options
Formal resolution begins with a formal investigation. The goal of the investigation is to gather all relevant facts and determine if there is sufficient information to refer the report to an adjudication or grievance process in order to determine responsibility and impose appropriate sanctions or outcomes. If the Complainant files a formal complaint and chooses to pursue a formal resolution process, the University will initiate a prompt, thorough, and impartial investigation. The Title IX Coordinator will have oversight over the investigation. Prior to any investigation meetings, the Title IX Coordinator, or member of the Title IX team will meet with both the Complainant and Respondent to inform both parties of their rights and responsibilities, the name of the investigator(s) appointed to the case, the policy provisions alleged to have been violated, the range of potential sanctions for the alleged violations, the name of the parties alleging violations, and the date, time, and place of the alleged sexual harassment, to the extent known.
At the conclusion of the investigation, an investigation report will be compiled with relevant evidence included and submitted to the hearing panel prior to the hearing and after documents have been reviewed by both parties. The investigation is designed to provide a fair and reliable gathering of the facts. All individuals in the investigation, including the Complainant, the Respondent, and any third-party witnesses, will be treated with appropriate sensitivity and respect. Consistent with the need for a full assessment of the facts, the investigation will safeguard the privacy of the individuals involved as much as possible.
The investigator(s) will coordinate the gathering of information from the Complainant, the Respondent, and any other individuals who may have information relevant to the determination. The investigator(s) will also gather any available physical or medical evidence, including documents, communications between the parties, and other electronic records as appropriate. The Complainant and Respondent will have an equal opportunity to be heard, to submit evidence, and to identify witnesses who may have relevant information.
Evidence regarding a party’s sexual behavior or predisposition that is directly related to the allegations raised in a formal complaint should be offered for review to all parties for consideration of inclusion in the investigative report. The Complainant’s prior sexual behavior is considered irrelevant; however, it must be shared if it is considered directly related to the allegations.
At the conclusion of the investigation, the investigator(s) will prepare a written investigation report synthesizing the facts that will be submitted for review by the Hearing Board to determine responsibility outcomes and sanctions.
Advisor of Choice
Complainants and Respondents have the right to be assisted by an advisor to provide support through the grievance process. Advisors may be any member of the campus community but may not be a witness or other party in the proceeding. Complainants and Respondents who wish to consult with an attorney may do so at their own expense; the attorney may act as the party’s advisor and accompany the party to any investigation meeting and/or hearings. An advisor may be present for any investigation, meeting, or hearing. If a party does not have an advisor, the University will provide the party with an advisor at no cost for the purpose of cross-examination during the live hearing. The advisor will conduct cross-examination for the Complainant or Respondent during the hearing.
Before the investigator(s) issues a final report, both parties will be provided with 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. Prior to completion of the investigative report, the University 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, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The Recipient must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party an equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination. Upon completion of the investigative report, the parties will have another opportunity to review evidence documentation prior to the live hearing.
Preponderance of evidence is the required standard for determining a policy violation. Administrators charged with rendering a decision of policy violation must be convinced based on the information provided that a policy violation was more likely to have occurred than to not have occurred in order to find a Respondent responsible for violating a policy.
Hearing Board Panels and Decision-Makers
The hearing board panel typically consists of three members drawn from a pool of faculty and staff, selected and trained by the Title IX Coordinator. All decision-makers and hearing board members must participate in annual training on non-discrimination; the dynamics of sexual harassment, sexual violence, stalking, and intimate partner violence; the factors relevant to a determination of credibility; the appropriate manner in which to receive and evaluate sensitive information; the manner of deliberation; evaluation of consent and incapacitation; the application of the preponderance of the evidence standard; sanctioning: and the University’s policies and procedures. The training will be coordinated by the Title IX Coordinator.
The Complainant, Respondent, and the hearing board all have the right to call witnesses, including expert witnesses. Witnesses must have observed the conduct in question or have information relevant to the incident and cannot be called solely to speak about an individual’s character. The Decision Maker will determine if the proffered witness(es) has relevant information. If witnesses are approved to be present, the Respondent and Complainant are provided with a list of witnesses and any relevant documents related to their appearance at the hearing no later than five (10) business days before the hearing. All parties have the opportunity to ask questions of witnesses through the party’s advisor, regardless of which party requested the witness.
Disciplinary action may include, but is not limited to, a letter of reprimand, instructions to draft and send a letter of apology, termination of a contract, demotion, termination of employment, or expulsion from University programs. The decision notification will also advise the Complainant and the Respondent of the right to appeal the decision.
Written notice of the outcome, the rationale for the decision, relevant sanctions imposed, and instructions for filing an appeal will be provided to both parties following the decision. Both parties also will be notified of any change to the outcome that occurs prior to the final resolution, and when the outcome becomes final.
A Respondent or Complainant has up to five business days from the date of the decision notification to submit an appeal in writing to the Decision Maker. An appeal may be made on the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- 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
- The Title IX Coordinator, investigator(s), or decision-maker(s) 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.
This notification must clearly identify the grounds for the appeal and give clear support for this reason. Appeals will be heard through the Shepherd University Appeal Board. The Shepherd University Appeal Board will consist of three faculty or staff members, one of which will serve as chairperson. The appeals process will be limited to the content of the appeal request, a review of hearing recordings (if any), supporting documents, and related information.
Decisions of the Shepherd University Appeal Board may take one of the following three forms:
- Affirm the original decision and sanctions.
- Change the original decision and/or sanctions.
- Void the original decision and order a new formal hearing.
The Title IX Coordinator will retain records of all reports and complaints, regardless of whether the matter is resolved by means of Title IX assessment, informal resolution, or formal resolution. Affirmative findings of responsibility in matters resolved through formal resolution are part of a student’s conduct record. Such records shall be used in reviewing any further conduct, or developing sanctions, and shall remain a part of a student’s conduct record. Records will be retained for seven years or may be retained for longer periods of time or indefinitely at the discretion of the University.