Grievance Procedures: Sexual Misconduct, Non-Title IX Complaints: Employee Respondent

Grievance Procedures: Sexual Misconduct, Non-Title IX Complaints: Employee Respondent

The Office of Human Resources is committed to fair and equitable responses to employee experiences; the office will follow established procedures and the use of outcomes to aid in the employee development while maintaining a standard for expectations of behaviors.  The University reserves the right to take appropriate action to protect the members of the University community and to maintain an environment conducive to learning and inquiry. 

After a complaint has been referred to Human Resources, the University will provide for a prompt and effective response to all notices of a potential violation of University policy.  The University will conduct preliminary inquiry to determine if there is reasonable cause to believe the policy has been violated and what resolution steps are appropriate. The University will conduct an investigation thoroughly and impartially.

Filing a report about sexual misconduct with the University is independent of filing a report with local law enforcement agencies.  Complainants may file reports with the University and the police, which is encouraged; with the University, only; or with the police, only.  If a Complainant files complaints with both the University and the police, the University will not wait for the criminal justice system’s process to be completed before commencing its own process, except in cases where the University temporarily delays its investigation while criminal investigators gather evidence.  Occasionally, the University and police will share information and conduct joint investigations for the sake of efficiency and convenience of the involved parties, but how they use the results will be decided independently.

Terms Used in the Process

Confidentiality 

Confidentiality must be maintained throughout the process.  The University is committed to protecting the privacy of all parties involved in complaints, to the extent possible.  It will limit the number of University members who are informed of the case to those who are involved in resolving sexual misconduct allegations.  The University will maintain the record of the case in a secure manner and limit access to it, accessible only on a need to know basis.

All comments made about another party during meetings must pertain only to the incident being reviewed.

A Respondent, Complainant, advisor of choice, and/or witness may not bring electronic devices that capture or facilitate communication (e.g., computer, cell phone, audio/video recorder, etc.) into a meeting or listening room.  

Any account of the results of the meetings must respect the privacy rights of those involved, and must comply with the restrictions imposed by the Family Educational Rights and Privacy Act of 1974 (FERPA) with regard to information relating to individual students.  Unless otherwise compelled by an applicable exception to FERPA, the University will not release specific information about conduct outcomes.

In the interest of fairness and confidentiality, all interviews, meetings, and resolution meetings are closed.  The resolution proceedings will be conducted in an impartial and unbiased manner and will meet the basic standards of impartiality without becoming indifferent or unduly legalistic.

Except in rare circumstances, materials, other than the individual's personal statement, will not be sent electronically and paper copies will not be provided for personal possession.  Parties will be given the opportunity to review all documents throughout the resolution process.

Resignation Prior to Resolution

If an employee resigns from their role from the University after a complaint is received, but before the resolution process is completed, the University reserves the right to proceed with the resolution process.  The responding party will have the opportunity to participate in the resolution process. If charges are filed then the resolution body will make a determination of responsibility based on the information they have, regardless of the participation of the respondent.  

In some specific cases, the University may choose to place the case on hold pending the employee's impending return to campus, in which case a notation will be placed on the employee's record and the employee must resolve the issue before returning as an employee, visitor, volunteer, etc.

The University will notify the responding party, and the complainant when applicable, if it will proceed with resolving the case or leave it open pending the respondent's return.  In circumstances when the University holds the case open pending return of the respondent, the University will attempt to resolve the case within two weeks of the respondent's return to campus.  Any violations of University policies while the respondent is not employed at the University may result in the opening of additional cases.

Resolution Timeline

An investigation may take up to 30 business days, depending upon the number and availability of witnesses, the academic calendar, and other factors. An investigative report will be prepared within 60 business days of the complaint being made. 

A resolution meeting, if applicable, will be held within 90 business days of the complaint being made. A written determination regarding responsibility will be issued within 10 business days of the resolution meeting. It is a goal to resolve complaints within 100 business days from notice of complaint, not counting any appeal period. The University may extend an investigation process for reasonable circumstances and will provide this information to the Complainant and Respondent in writing. 

Interim Remedies and Actions

OWU is committed to protecting individuals involved in sexual misconduct cases from the time a complaint is made, through the resolution process, and after an outcome has been determined.  Interim measures include, but are not limited to:

  • No Contact Orders:  a directive by the University to parties involved in the case instructing them to refrain from communicating with each other.  This directive is not a restraining order enforced by local law enforcement.
  • Additional University Reassignments: adjustments to working environments to ensure that a hostile environment is eliminated.
  • Transportation/Escort Arrangements: support for a party to be transported or escorted if there is a concern for physical safety.
  • Counseling and/or Medical Referrals: Participants may obtain access to counseling and/or medical resources.  The University employs a Survivors of Crime Assistance Counselor that specializes in trauma response and support.

The University will provide other accommodations when they are reasonably available.   

Interim Administrative Leave and/or Activity Restriction

If the Assistant Vice President for Human Resources, in consultation with other staff, determines that the presence of the Respondent presents a clear and present danger to persons or property at the University, they may issue an interim administrative leave or activity restriction to the Respondent at any point of the process from when a complaint is filed to when the case is resolved.  Ordinarily, a case involving an interim administrative leave will be expedited to resolution as quickly as possible.

The Assistant Vice President of Human Resources, or designee, may also restrict the activities (i.e.: building access, participation in University activities) of the Respondent at any point of the process from when a complaint is filed to when the case is resolved.  Activity restrictions also may be kept in place after the case is resolved. Interim suspensions and activity restrictions are operative immediately upon receipt of the notice by the Respondent.

Participation by Parties

Any person involved in a complaint has the right to decline participation in the investigation or complaint process. The University may continue with an investigation and resolution without the complainant’s and/or respondent’s participation. 

Parties are responsible for the communications they receive.  All communication will be sent through owu.edu emails unless other plans for communication have been established.  University staff will make good faith efforts to communicate with participants before moving forward, but will ultimately proceed in resolutions without a party if there is no response.

Lack of participation may result in an outcome that precludes a complainant or respondent from appealing the outcomes of the process.  

Witnesses and Witness Participation

The Respondent and the Complainant have the right to name witnesses, and present relevant evidence. A list of witnesses should be provided to the investigator upon initiation of the investigation. If additional witnesses are found prior to the conduct resolution meeting, the witnesses should be submitted to the Process Advisor no less than forty-eight (48) business hours prior to the meeting to allow the Process Advisor time to notify the witnesses and request their participation.

Character witnesses and/or statements will not be accepted for submission. A witness must attest to factual evidence in relation to the specific situation being investigated. The investigator will meet with these witnesses to gather information and statements.  

The University reserves the right to contact other witnesses deemed relevant even if a party did not request them to be interviewed.

Witnesses will only be called on during a conduct resolution meeting if there is a need for clarifying information.  Parties that believe a witness should speak with the resolution body must make the request within two (2) business days of the scheduled resolution meeting to the Process Advisor.

Witnesses will only be permitted inside the resolution meeting during their own testimony.

Standard of Proof

A "preponderance of evidence" standard, which is "more likely than not" that a violation occurred, will be utilized for resolution proceedings and determining responsibility of Respondents.

Past Sexual History/Character and Past University Policy Violations

The past sexual history, sexual character or conduct violations of a party will not be admissible by the other party in the investigation or Resolution Meeting unless such information is determined to be highly relevant by the Process Advisor (pertaining only to past or subsequent interactions between the parties that offer context).  All such information sought to be admitted will be presumed irrelevant, and any request to overcome this presumption by the parties must be reviewed in advance of the resolution meeting by the Process Advisor and Investigator(s).

Resolution Bodies

The University will make reasonable efforts to utilize a resolution panel for complaints non-Title IX sexual misconduct complaints, but reserve the right to hold a resolution meeting administratively if a panel cannot be convened in a timely manner and/or there are too many conflicts of interest with the panel pool and the involved parties.

Resolution Administrator(s)

One or more trained professional staff or faculty members of the University.  A Resolution Administrator facilitates resolution meetings and determines whether employees are responsible for the charges raised against them.  The Resolution Administrator recommends outcomes to the Assistant Vice President for Human Resources and/or the Provost following a resolution meeting. 

Resolution Administrators may also serve as an appeals administrator if they were not involved with the initial resolution of a case.

Resolution Panel

Consists of three trained professional staff or faculty members who make findings and recommend outcomes following a resolution meeting.  

The panel will be chaired by a University staff member as a Process Advisor. They will not have voting power on the outcome of the case, but will be present through the resolution meeting to ensure consistency and equity.

The Resolution Panel typically reviews relatively more serious cases. The Panel will consult with the Process Advisor to ensure that outcomes are consistent and equitable with University conduct standards.  The Process Advisor will consult with the members of the Human Resources staff to ensure cases are being resolved consistently with University precedents before issuing an outcome letter to the party(ies).

Conflicts of Interest and Bias

The University is committed to ensuring that the resolution processes (e.g.: investigation, resolution, appeal, etc.) are free from actual or perceived bias and/or conflicts of interest that would materially impact the outcome. 

Any party who feels that there is bias and/or conflict of interest that would materially impact the outcome may submit a written petition to the Assistant Vice President of Human Resources, or designee, to seek the person's removal from the process.  If a person wants to petition for removal of the Assistant Vice President of Human Resources, written requests may be submitted to the University President.  The recipient of the petition will review the information and make a final determination if a conflict of interest and/or bias exists.

The petition should include specifics as to the bias and/or conflicts of interest, and why the petitioner believes the bias or conflict could materially impact the outcome. 

Types of Resolution

Alternative Resolution Process

The alternative resolution process is designed to eliminate a hostile environment without taking formal action against a Respondent and to reach a mutually-agreeable resolution to the complaint.  Both parties have the option to pursue an alternative resolution process and it may be initiated any time prior to reaching a determination regarding responsibility.  Both parties must agree to participate in the alternative resolution process.

If alternative efforts are unsuccessful, the formal resolution process may be initiated. Either party has the right to end the information resolution process and begin the formal process at any time prior to an agreed-upon resolution.  The University reserves the right to determine a situation is not eligible for an alternative resolution process and eliminate this grievance process option.

As part of the alternative resolution process, the University official facilitating the alternative resolution process may:

  • Resolve the complaint through the implementation of remedies when there is sufficient information about the nature and scope of the conduct to support such a response.
  • Act promptly to meet with the parties involved to inform them of the corrective actions.
  • Institute other potential remedies including targeted or broad-based educational programming or training.
  • Conduct facilitated conversations with the parties.

Formal Resolution

Notice of a formal report can be made in person, by phone, via email or in writing to the Office of Human Resources. As necessary, the University reserves the right to initiate a report and to initiate resolution proceedings without a formal report or participation of the harmed person.

A formal resolution includes an investigation, if applicable, and a resolution meeting. Resolution meetings will be conducted by trained staff or faculty member(s) who will review the allegations, reports and supporting documentation, and hold a meeting with parties involved to determine the Respondent's level of responsibility for the allegations.

Upon receipt of a report, the Vice President for Human Resources, or designee, will conduct a preliminary inquiry to determine whether a more comprehensive investigation will occur. The Vice President for Human Resources, or designee, will take preliminary statements from the Complainant and sometimes from the Respondent and witnesses, as necessary, in making the determination of the appropriateness of a formal investigation.

Following the preliminary inquiry, if the Complainant wishes to pursue a formal resolution or if the University, based on the alleged policy violation, determines the need to pursue a formal resolution, then the Vice President for Human Resources, or designee, will appoint a trained investigator(s) to conduct the investigation, which will begin in a timely manner.

Parties will be notified in writing, via OWU email of the following:

  • Investigations: the allegations against them, the Complainant(s) if applicable, the date(s) of the alleged violation(s), and information about the investigative process.  In some cases, general inquiry will occur before a formal investigation is initiated. The University is not obligated to notify parties if general inquiries are occurring.
  • Resolution Meetings: charged policy violations, the date(s) of the alleged violation(s), and the date, time, place of the resolution meeting.
  • Resolution Meeting Outcomes: finding of charges, rationale for finding(s), and the right of appeal.

The University's investigation or resolution will not typically be altered or precluded on the grounds that civil or criminal charges involving the same incident have been filed or that charges have been dismissed or reduced. However, the University may undertake a short delay (several days to weeks) in its investigation or resolution process to comply with a law enforcement request for cooperation (e.g. to allow for criminal evidence collection) when criminal charges based on the same behaviors that invoke this process are being investigated.  If delayed, the University will promptly resume its investigation and processes once notified by law enforcement that the initial evidence collection process is complete.

All investigations will be thorough, reliable, and impartial, and will entail interviews with all relevant parties and witnesses, obtaining available evidence and identifying sources of expert information, if necessary.

At any point during the investigation, if it is determined there is no reasonable cause to believe that University policy has been violated, the Vice President for Human Resources, or designee, has authority to terminate the investigation and end resolution proceedings.

Following the preliminary inquiry and initiation of a formal complaint process, the following procedures will be used, not necessarily in order:

Investigation

Investigations will be coordinated in a prompt and impartial manner.  When the participant meets with the investigator, they will ask them to share their experience or knowledge of the complaint. Following the interview, the participant will receive a summary of their statement electronically via OWU email. The participant will have the opportunity to review the statement and provide corrections as appropriate. 

Following the completion of the initial investigation, the Complainant and Respondent will be invited to review their statement, the other party statement, and the witness statement(s).  The parties will be given the opportunity to submit additional questions, clarification, and/or more information. If additional information is submitted then the investigator will conduct follow up interviews with relevant parties.

If there is no additional information to collect, the investigator will present the investigative report to the Respondent and Complainant. Both parties will have the opportunity to review the information and will receive an investigative outcome letter if there is sufficient information that indicates policies have been violated.  

Following the completion of the investigation, a policy analysis will be conducted with the investigator, Assistant Vice President for Human Resources, or designees.  The analysis will examine the statements and relevant evidence.  The review will determine if there is sufficient evidence that rises to the level of a policy violation.  If there is sufficient information, then charges will be issued or, if there is not sufficient information, no charges will be issued.

The Assistant Vice President for Human Resources, or designee will issue an Investigation Outcome letter to both parties. Charges and notice of a resolution meeting will be included in the letter, if applicable.

The Respondent will be given the opportunity to accept responsibility for the charges.  If the Respondent is a staff member and accepts responsibility for the charges against them, the Assistant Vice President of Human Resources, or designee, will determine an outcome and appropriate resolution.  If the Respondent is a faculty member and accepts responsibility for the charges against them, the Provost, or designee, will determine an outcome and appropriate resolution.

Resolution Meeting

Information about the resolution meeting procedures and other logistical matters will be provided to relevant parties at an appropriate time if or when the University decides to hold a resolution meeting.  The University will make reasonable efforts to utilize a resolution panel for meetings, but reserves the right to hold a resolution meeting administratively if a panel cannot be convened in a timely manner and/or there are too many conflicts of interest with the panel pool and the involved parties.

The parties will be notified of the resolution body in a timely manner. If a party objects to a member of the resolution body  based upon a conflict of interest, the party must provide written notice to the Process Advisor, identified in their resolution meeting notice, within two business days from the meeting notification, explaining the conflict of interest.  The Process Advisor will make a determination regarding the merits of the alleged conflict of interest. If the alleged conflict of interest involves the Process Advisor, the party should send their written notice to the Vice President for Human Resources, or designee.

Using a preponderance of the evidence standard, the resolution body will determine whether it is more likely than not that the Respondent violated the policies forming the basis of the charge. The goal of the meeting is to provide a resolution via an equitable process, respecting the rights of all participants.

Following the completion of the resolution meeting, the Process Advisor will notify the appropriate administrator that will issue an outcome.  The Assistant Vice President of Human Resources, or designee, will determine an outcome if the respondent is a staff person.  The Provost, or designee, will determine an outcome if the respondent is a faculty member.

The parties will receive written notification of the outcome, to the extent permitted or mandated by law. In cases involving non-consensual sexual intercourse, non-consensual sexual contact, intimate partner violence, and/or stalking, the written notification includes the findings, any resulting sanctions, and the rationale for the decision. This written notification of final decision is delivered to the parties without undue delay between the notifications, explains appeals options and procedures, and any changes to the results that could occur before the decision is finalized.

The University will continue to act to end the discrimination, prevent its recurrence, and remedy its effects on the Complainant and the University community, as applicable.

Witness Participation in a Resolution Meeting

Any witness who declines to participate in or cooperate with an investigation will not be permitted to offer evidence or testimony during the resolution meeting. Witnesses may provide written statements in lieu of interviews during the investigation and may be interviewed remotely by phone or web conferencing if they cannot be interviewed in person. Parties who elect not to participate in the investigation will not have the opportunity to offer evidence during the resolution meeting and/or appeal stages of the process.  Failure to offer reasonably available evidence prior to an investigation  does not constitute grounds for appeal on the basis of new evidence. Any witness scheduled to participate in a resolution meeting must have been interviewed first by investigators (or have offered a written statement), unless all parties consent to the participation of that witness in the meeting.

Witnesses will not always be called for resolution meetings.  The resolution body determines if they need to ask additional questions of a witness.  If a party believes that the resolution body needs to speak with a witness, they should make a request to the Process Advisor no less than forty-eight (48) business hours from the scheduled meeting.

Character statements about the involved parties will not be accepted.  Witness statements must pertain to the specific incident and/or complaint.  In some cases, witnesses may provide a statement to discuss a pattern of behavior from a party.  The investigator and/or Process Advisor will determine if this is relevant to the complaint.

​Alternative Testimony Options

For sexual misconduct reports, and other reports of a sensitive nature, alternative testimony options may be offered, such as placing a privacy screen in the resolution meeting room, or allowing the Complainant to testify outside the physical presence of the Respondent, such as by video conference or phone. These options are intended to help make the parties more comfortable and they are not intended to work to the disadvantage of any participants.

Outcomes

Individuals will be notified of outcomes by their owu.edu email.  Outcomes will be issued without undue delay and simultaneously.

Notification of Outcomes to Parties Other than Respondent

When a community member is accused of a policy violation that would constitute a crime of violence or forcible or non-forcible sex offense, the University will inform the party bringing the complaint in writing of the final results of a resolution meeting regardless of whether the University concludes that a violation was committed.

Parties to complaints under this policy have a right to be informed of the outcome, essential findings/rationale, and any sanctions that may result, in writing, without condition or limitation, and without substantial delay between notifications to each party.

"Crimes of violence" include:

  • Arson
  • Assault offenses (includes stalking)
  • Burglary
  • Criminal Homicide—manslaughter by negligence
  • Criminal Homicide—murder and non-negligent manslaughter
  • Destruction/damage/vandalism of property
  • Kidnapping/abduction
  • Robbery
  • Forcible sex offenses
  • Non-forcible sex offenses

Such release of information may only include:

  • The respondent’s name.
  • The violation committed, if applicable.
  • The outcomes imposed, if applicable.


Sanctions

The following disciplinary sanctions are a formal action imposed on the Respondent in response to policy violation(s), and may be imposed upon individuals found to have violated any University policies.  While not an exhaustive list, the following are the typical sanctions that may be imposed upon individuals singly or in combination:

  • Warnings:  An official letter of warning that is placed on a employee record and/or in an employee file that the Respondent has been found responsible for a policy violation.
  • Learning-Based Intervention: Outcomes that encourage self-reflection and enable the individual and/or organization to evaluate decision making and impact on their community.
  • Educational/Health Interventions: Requirement for a Respondent to engage in conversations with healthcare professionals to address concerns about behavior.
  • Probation:  A specified period of time during which the Respondent’s conduct must be exemplary.
  • Loss of pay during administrative leave period.
  • Changes in employment terms and/or responsibilities.
  • Restrictions on activities or behaviors.
  • Recommendation for loss of tenure or termination of employment.

Appeals

Respondents have the right to appeal the outcome of a resolution meeting. When Complainants in the original resolution meetings are individuals who are not University officials acting in their official capacity to enforce University policies and regulations, they also have the right to appeal. The appeal is not meant to re-hear or reargue the same case and is limited to the standards below. Written appeals must meet one or all of the following standards:

  • A procedural (or substantive) error occurred that significantly impacted the outcome of the resolution meeting (e.g.  substantiated bias, material deviation from established procedures, etc.);
  • To consider new evidence, unavailable during the original resolution meeting or investigation, that could substantially impact the original finding or outcome.  A summary of this new evidence and its potential impact must be included.
  • Outcomes imposed are grossly disproportionate to the violation(s) committed.

Parties may not appeal under the following circumstances:

  • Non-attendance at meetings;
  • Dissatisfaction with a decision and/or outcome.

Appeals must be submitted electronically to the Office of Human Resources.  The written appeal must state the specific grounds for the appeal and be received within five (5) business days from the date of the outcome letter from the resolution meeting.The Assistant Vice President for Human Resources, or designee, will appoint an Appeal Officer to consider the appeal. The University reserves the right to appoint a trained external agent to review the appeal.

The Assistant Vice President for Human Resources, or designee, will share the appeal request with the other party (e.g. if the Respondent files an appeal, the appeal is shared with the Complainant, who may also wish to file a response and/or bring their own appeal on separate grounds; this response or appeal will be shared with the initial appealing party). If the ground for appeal is a procedural error, the relevant University official who is alleged to have violated procedures will be asked to file a response or respond to questions from the Appeal Officer.  

Appeals will be reviewed by a trained staff person who was not previously involved in the complaint.  A different appeal officer may be appointed in extenuating circumstances. An in-person meeting with the Appeal Officer or other parties will occur only at the discretion of the person reviewing the appeal. 

The parties will be notified of the appointed Appeal Officer. If a party objects to the appointed Appeal Officer based upon a conflict of interest, the party must provide written notice to the Assistant Vice President for Human Resources, or designee, within two (2) business days from the notification, explaining the conflict of interest.

Appeals are not intended to be a full renewed resolution meeting of the allegation. Except in rare cases, appeals are not heard in-person, but instead are confined to a review of the written documentation or record of the original resolution meeting, and pertinent documentation regarding the grounds for appeal. Appealed decisions are to be deferential to the original resolution panel, making changes to the findings only where there is clear error or newly-available evidence. An appeal is not an opportunity for Appeal Officers to substitute their judgment for that of the original resolution panel merely because they disagree with the finding and/or sanctions.

The Appeal Officer will typically render a written decision on the appeal to all parties within five (5) business days from receipt of the appeal.  The Appeal Officer's decision to deny an appeal request is final.

The Appeal Officer can take one of two possible actions:

  1. Dismiss an appeal request as untimely or ineligible, or
  2. Grant an appeal and refer the finding for further investigation or reconsideration at the resolution meeting level.

The original findings and outcomes will stand if the appeal request is not timely or substantively eligible.  The party requesting appeal must show clear procedural error or new relevant information that was not available at the time of the original resolution meeting, as the original resolution meeting is presumed to have been conducted in a thorough, reliable, and impartial manner.

Every opportunity to return the appeal to the original resolution body for reconsideration will be pursued and appeal cases, if eligible for appeal, will be reheard by the original resolution body.  The results of a reconvened resolution meeting with the original resolution body cannot be appealed.  In rare cases where a procedural (or substantive) error cannot be cured by the original resolution body (as in cases of bias), the Appeal Officer may order a new resolution meeting with a different resolution body. The results of a new resolution meeting (with a new resolution panel) can be appealed, once, on either of the applicable grounds for appeals.

Failure to Comply with Outcomes

Employees who fail to comply and/or complete the assigned outcomes may be subject to additional action by the Office of Human Resources up to and including termination of employment if terms are not met.