APPENDICES
APPENDIX 1: SEXUAL HARASSMENT POLICY
III. Resolution of a Complaint
- 1. Procedures
- a. Students
- b. State Classified Staff
- c. Academic Faculty, Administrative Professional, and Other Non-Student Employees (excepting State Classified Staff)
- 2. Sexual Harassment Panel
- 3. Hearing Committee
- 4. Formal Hearing Procedures
- 5. Recommendations Following Formal Hearings
- 6. Administrative Action Following the Hearing Committee Recommendations
IV. Expectations for Members of the University Community
APPENDIX 2: CONSENSUAL RELATIONSHIPS
APPENDIX 3: FAMILY MEDICAL LEAVE POLICY
APPENDIX 4: PROCEDURE FOR RESOLUTION OF DISCRIMINATION COMPLAINTS (OTHER THAN SEXUAL HARASSMENT)
V. Time Restriction and Conditions for Filing Either an Informal or Formal Complaint
VI. Resolution of Informal Complaints
VII. Resolution of Formal Complaints
VIII. Appeals and Administrative Review
IX. Expectations for Members of the University Community
APPENDIX 1: SEXUAL HARASSMENT POLICY
Colorado State University strives to create and maintain a work and study environment that is fair, humane, and responsible so that each member of the University community is treated with dignity and rewarded for such relevant considerations as ability and performance. Abusive treatment of individuals on a personal or stereotyped basis is contrary to the concepts of academic freedom and equal opportunity. Sexual harassment is one form of such abuse and cannot be tolerated.
Sexual harassment is also illegal. It is prohibited in the employment context by Title VII of the 1964 Civil Rights Act and in the education context by Title IX of the Educational Amendments of 1972.
Therefore, this policy shall apply to all persons affiliated with the University, including its students and employees. Persons who violate this policy shall be subject to corrective action.
This policy supplants and supersedes all other policies and procedures related to issues of sexual harassment.
This policy prohibits "quid pro quo" and "hostile environment" sexual harassment as defined below.
Unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature by one in a position of power or influence constitutes quid pro quo sexual harassment when (1) submission by an individual is made either an explicit or implicit term or condition of academic standing or of employment or (2) submission to or rejection of such conduct is used as the basis for academic or employment decisions affecting that student or employee. As defined here, quid pro quo sexual harassment normally arises in the context of an authority relationship. This relationship may be direct, as in the case of a supervisor and subordinate or teacher and student, or it may be indirect when the harasser has the power to influence others who have authority over the victim.
B. Hostile Environment Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature constitute hostile environment sexual harassment when such conduct is directed toward an individual because of her or his gender, is severe and/or pervasive, and has the purpose or effect of (1) creating an intimidating, hostile, or offensive academic or work environment or (2) unreasonably interfering with another's academic performance or work. Generally, a single sexual joke, offensive epithet, or request for a date does not constitute hostile environment sexual harassment; however, being subjected to such jokes, epithets, or requests repeatedly may constitute hostile environment sexual harassment.
In determining whether the alleged sexual harassing conduct warrants corrective action, all relevant circumstances, including the context in which the conduct occurred, will be considered. Facts will be judged on the basis of what is reasonable to persons of ordinary sensitivity and not on the particular sensitivity or reaction of an individual.
In cases of alleged sexual harassment, the protections of the First Amendment must be considered if issues of speech or artistic expression are involved. Free speech rights apply in the classroom and in all other education programs and activities of public institutions, and First Amendment rights apply to the speech of students and teachers. Great care must be taken not to inhibit open discussion, academic debate, and expression of personal opinion, particularly in the classroom. Nonetheless, speech or conduct of a sexual or hostile nature that occurs in the context of educational instruction may exceed the protections of academic freedom and constitute prohibited sexual harassment if it meets the definition of sexual harassment noted above and (1) is reasonably regarded as non-professional speech (i.e., advances a personal interest of the faculty member as opposed to furthering the learning process or legitimate objectives of the course) or (2) lacks accepted pedagogical purpose or is not germane to the academic subject matter.
II. Bringing a Complaint (last revised June 9, 1999)
The University can respond to harassment only if it is aware of the harassment. Any member of the University community who believes that he or she has experienced sexual harassment or reprisal shall come forward promptly with inquiries, reports, or complaints and to seek assistance from the Director or Associate Director of the Office of Equal Opportunity and Diversity (hereinafer referred to as "OEOD").
A. Any member of the University community who believes that he or she has been subjected to sexual harassment ("Complainant") shall contact the OEOD, to request advice and information about possible ways to proceed and to put the University on notice. Such discussion will be kept confidential to the full extent permitted by law. Complainants are advised that there are some instances in which the University has a responsibility to act even if the Complainant requests that no action be taken as, for example, where other members of the University community may be at risk. In those cases, the University may investigate and take action on the basis of facts it discovers.
B. To avoid liability to the University and the employee and to correct problems of sexual harassment, it is critical that any employee who believes that he or she has observed an incident of sexual harassment in the University's learning and working environments involving a member of the University community or who receives a report of alleged sexual harassment from an employee or student immediately report this information to the Director or Associate Director of the OEOD or to any vice president.
C. The initial discussion between the Complainant and the Associate Director of OEOD, will be kept confidential to the full extent permitted by law. The claim should be made as promptly as possible after the alleged harassment occurs. Complaints must be filed no later than one hundred eighty (180) days after the last incident considered to be sexual harassment. One consequence of the failure to present a complaint promptly is that it may preclude recourse to legal procedures should the Complainant decide to pursue them at a later date.1
D. If the Complainant, after the initial meeting decides to proceed with a formal complaint, he or she shall submit a written statement (the "Statement") to the Director or the Associate Director of OEOD.2 The Statement must describe the conduct that is the basis of the complaint, including the name of the alleged offender (hereafter termed the "Respondent"), the date(s), time(s), and location(s) of the conduct, and the names of witnesses. If the Respondent is a student, the Associate Director of OEOD will refer the matter to the Director of Conflict Resolution and Student Conduct Services in the Office of Student Affairs for resolution. (Hereafter, the Associate Director of OEOD and the Director of Conflict Resolution and Student Conduct Services are termed the "Responsible Officer".)
E. The Responsible Officer must promptly inform the Respondent of the allegation and the identity of the Complainant and provide a copy of the written Statement of the Complaint and any related material.
F. Reprisals against an individual who in good faith files a charge of sexual harassment are expressly prohibited and shall be treated as a separate violation of University policy. Intentionally false or malicious charges, however, are grounds for disciplinary action against the Complainant.
III. Resolution of a Complaint (last revised January 27, 2006)
The University shall take immediate and appropriate steps reasonably calculated to end any harassment that has occurred, remedy its effects, and prevent harassment from occurring again.
Informal resolution of a sexual harassment complaint is encouraged whenever possible. The procedure might involve giving advice to the Complainant, the arrangement of a discussion between the Complainant and the Respondent in the presence of the Responsible Officer, or attempted mediation by the Responsible Officer.
Possible outcomes of an informal resolution may include explicit agreements about future conduct, changes in workplace assignments, substitution of one class for another, or other appropriate relief.
The applicable procedure for formal resolution of a sexual harassment complaint following submission of a Statement depends upon the Respondent's status as a student, a member of the State Classified staff, a tenured faculty member, an untenured faculty member, an administrative professional, or an other non-student employee.
Complaints against students will be handled in accordance with the administrative hearing procedures established in the Office of Conflict Resolution and Student Conduct Services.
Appeals of a decision by the Hearing Officer may be made to the University Discipline Committee, and the decision of that committee is final.
For purposes of this policy, complaints against graduate students arising out of their employment status will follow the procedures specified for untenured faculty, administrative professionals, and other non-student employees (excepting State Classified staff).
Complaints against State Classified staff, following an objective and impartial preliminary investigation by the Associate Director of OEOD, will be handled in accordance with the procedures in the State Personnel Board Rules. Appeal rights, together with timing limitations, are described in those rules.
c. Academic Faculty, Administrative Professional, and Other Non-Student Employees (excepting State Classified Staff)
Complaints against academic faculty members, administrative professionals, and other non-student employees (excepting State Classified staff) shall be referred to the Associate Director of OEOD. That officer shall conduct an objective and impartial preliminary investigation with such assistance from an appropriate administrator as needed. The administrator shall be from a higher administrative unit than that of the Respondent. Pending the results of the preliminary investigation, the Respondent will be suspended or assigned to other duties in lieu of suspension, by his or her immediate supervisor, only if immediate harm to the Complainant or others is threatened by continuance. Salary will continue during the period of the suspension. Following the preliminary investigation, the Associate Director of OEOD shall notify the Complainant and the Respondent of the finding and shall attempt to effect an informal resolution of the complaint. The Complainant and the Respondent also shall be provided with a full copy of the report. If the Associate Director of OEOD cannot arrange a mutually acceptable resolution and/or if that Officer has concluded that there is reasonable cause for further action, the Respondent will be given five business days after receipt of the report to either request a hearing or to prepare a response to the report before it is forwarded to the Respondent's immediate administrative supervisor and to the senior administrative officer of the Respondent's administrative unit (the vice president or, if the Respondent is a vice president, to the President). If the Respondent requests a hearing, the report will be referred to the Hearing Committee described below or, for cases in which the Respondent is tenured faculty member, handled in accordance with Section E.10.7 Disciplinary Action for Tenured Faculty of the Manual.
2. Sexual Harassment Panel (last revised May 1, 2001)
The members of the Sexual Harassment Panel are elected to three (3) year terms by their respective councils, the Administrative Professional Council and the Faculty Council. Nominations shall be solicited in February with elections conducted in April. Terms of office will begin July 1 following election. Terms shall be staggered so that approximately one-third (1/3) will be elected each year. The panel will consist of ten (10) administrative professionals from at least four (4) administrative units and (10) ten faculty members from at least four (4) colleges, including the libraries. Each member will receive annual training on sexual harassment by the Associate Director of OEOD. The Sexual Harassment Panel shall constitute a pool of individuals from which the Hearing Committee will be drawn.
A committee of five members of the Sexual Harassment Panel will be chosen by lot by the Chair of Faculty Council if the Respondent is an untenured faculty member and by the Chair of the Administrative Professional Council for administrative professionals and other non-student employees (excepting State Classified staff).The Hearing Committee for an untenured faculty member will be composed of faculty members and for administrative professionals of administrative professionals. Hearing Committees for other non-student employees (excepting State Classified staff) will be selected by lot from the entire Panel.
Any person from the same administrative unit or department as either the Complainant or the Respondent will be replaced by another drawn by lot. Members deeming themselves disqualified for bias or interest will remove themselves from the case. The Complainant and the Respondent will have a maximum of one (1) challenge each without stated cause.
a. Hearings will commence no later than ten (10) working days after the Hearing Committee chair notifies the Complainant and the Respondent. The Hearing Committee shall elect its own chair from among its members and shall be advised by legal counsel for the University or from the Colorado Department of Law.
b. The Hearing Committee may hold organizational meetings in private, which may include meetings with the Respondent and Complainant as needed to (1) clarify the issues, (2) effect stipulations of facts, (3) provide for the exchange of documentary or other information, (4) formulate a list of potential witnesses, and (5) achieve such other appropriate pre-hearing objectives as will make the hearing fair, effective, and expeditious.
c. The Associate Director of OEOD will be called first to present the results of the preliminary investigation. The committee also may conduct its own informal inquiry, call witnesses, and gather whatever information it deems necessary to assist it in reaching a determination on the merits of the allegations. The hearing shall be closed, and the proceedings shall remain confidential to the extent permitted by law.
d. Excepting pre-hearing organizational meetings and those for final deliberation, finding of fact and preparation of recommendations, the Respondent is permitted to be present during all meetings of the committee, to call witnesses, to confront and cross-examine any adverse witnesses, and to be accompanied by an advisor and/or legal counsel. Such advisor or counsel is free to advise the Respondent fully throughout the proceedings, to assist in formulating any required written documentation, and to help prepare for any oral presentation, but they may not actively participate in the proceedings such as making objections and attempting to argue the case. A full verbatim record of the hearing will be kept and made available to the Respondent upon request.
At the conclusion of the hearing, the Hearing Committee shall meet privately for final deliberation, finding of fact, and preparation of recommendations. These deliberations shall remain confidential to the extent permitted by law. The committee shall decide, by majority vote and by the preponderance of the evidence (more likely than not) whether (1) the complaint is substantiated, (2) the complaint is unsubstantiated, or (3) the complaint is intentionally false or malicious. The finding, together with the basis for this finding, and recommendations shall be communicated in writing to both parties, the Associate Director of OEOD, the Respondent's immediate administrative supervisor, and the senior administrative officer of the Respondent's administrative unit (the vice president or, if the Respondent is a vice president, to the President). A finding by the majority of the Hearing Committee that the Respondent has, more likely than not, violated the Sexual Harassment policy must be accompanied by recommendations for remedial action reasonably calculated to stop the harassment or disciplinary sanctions up to and including termination of employment. If the committee finds that the complaint was deliberately false and malicious, this finding, together with a recommendation for appropriate disciplinary action against the Complainant, shall be forwarded to the senior administrative officer of the Complainant's administrative unit.
6. Administrative Action Following the Hearing Committee Recommendations(last revised January 27, 2006)
The senior administrative officer may accept the recommendations of the Hearing Committee or may recommend disciplinary actions more or less severe than those recommended by the Hearing Committee for persuasive reasons that shall be stated in writing to the Respondent and the Hearing Committee. If the Respondent accepts the recommendation of the senior administrative officer, the remedial action or disciplinary sanction shall be implemented without further review by the President. If the Respondent rejects such officer's recommendation, the President shall review the case and recommendation and shall make the final decision on the disposition of the case. Since the procedures herein are designed to provide appropriate relief and due process, appeals through other grievance procedures such as Section K of the Manual cannot be made by either party.
IV. Expectations for Members of the University Community (new section added December 14, 2004)
A. Cooperation and participation by the members of the University community in the resolution of a complaint under these procedures is necessary.
B. The Complainant, Respondent, and all witnesses shall be truthful in their testimony. Failure to comply with this expectation may result in the imposition of University sanctions.
C. No person shall restrain, interfere with, coerce, attempt to intimidate, or take any reprisal against a participant under these procedures. Failure to comply with this expectation may result in the imposition of University sanctions.
1 Any individual involved in a sexual harassment incident has the right to pursue the matter in Courts or before governmental agencies. The procedures herein are designed to preclude the need to utilize external agencies and to provide appropriate and effective remedies.
2 Cases involving sexual harassment are particularly sensitive and demand special attention to issues of confidentiality. Dissemination of information relating to the case should be limited in order that the privacy of all individuals involved is safeguarded as fully as possible.
APPENDIX 2: CONSENSUAL RELATIONSHIPS
The University does not interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the University. However, consensual romantic or sexual relationships in which one party retains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships shall assure that decisions and evaluations concerning the person of lesser authority are conducted by another person.
There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent does not remove grounds for a charge of a violation of applicable parts of Section D.9; Code of Ethical Behavior, or sexual harassment based upon subsequent unwelcome conduct.
APPENDIX 3: FAMILY MEDICAL LEAVE POLICY (new section added February 6, 2001)
Introduction:
Colorado State University recognizes that its faculty and staff strive to balance the responsibility of their work and personal lives. This Family Medical Leave Policy is designed to support those efforts and to comply with the provisions of the Family Medical Leave Act of 1993 (FMLA) and applicable implementing regulations.
Covered Appointment/Employee Types:
Other than State Classified, all employees, including those with academic faculty, administrative professional, graduate assistant, post-doctoral fellow, veterinary intern or resident, non-student hourly or student hourly, including work study, appointments, or a combination thereof are covered by this policy and are eligible for Family Medical Leave (hereinafter referred to as "FM Leave") in accordance with the criteria listed below under "Eligibility." FM Leave policies relating to the University's State Classified employees are contained in the procedures adopted by the Executive Director of the State Department of Personnel/GSS.
Eligibility:
Any faculty member or employee who has been appointed or employed for at least twelve (12) months and who has worked at least 1040 hours during the twelve (12) months immediately preceding the commencement date of the leave is eligible for FM Leave under this policy for the purposes set forth below under Leave Entitlement. The appointment or employment may have been in one or any combination of the covered appointment/employment categories listed above. Academic Faculty members and Administrative Professional staff with regular or special nine (9) month, part-time appointments of half-time (0.5) time or greater are deemed to meet the 1040 hour standard.
Leave Entitlement:
Eligible faculty and employees are entitled to a total of twelve (12) work weeks of FM Leave during a rolling twelve (12) month period, measured forward from the first date the faculty member/employee uses FM Leave to the same date twelve (12) months later. FM Leave may be taken for any one (1) or a combination of the following reasons:
a. The birth of a son or daughter, and to care for the newborn child (leave must be completed within twelve (12) months of the date of birth);
b. The placement of a son or daughter for adoption or foster care with the employee and to care for the newly placed child (leave must be completed within twelve (12) months of the date of placement);
c. To care for a spouse, son, daughter, or parent with a serious health condition; and
d. Because of a serious health condition which causes the faculty member or employee to be unable to perform one or more of the essential functions of his or her position.
Leave Requests:
Requests for FM Leaves must be submitted in writing to the appropriate department or unit head at least thirty (30) days prior to the requested beginning date of the leave except in those cases where notice of this length is not reasonably possible. Foreseeable leaves for planned medical treatment are to be scheduled so that the disruption to assignments is minimized. Medical documentation confirming the reason(s) for the leave, the anticipated duration, or the medical necessity for any requested intermittent leave schedule and/or the fitness to return to work may be required. Medical documentation requested must conform to the requirements of the FMLA. Departments and units must maintain records of FMLA Leave, and requests therefore, in the manner specified in the FMLA.
Departments and units receiving requests for FM Leave must immediately contact the Benefits Office for assistance in ensuring compliance with this policy and with the underlying requirements of the FMLA.
Paid/Unpaid Leaves:
Leaves taken under this policy may be either paid or unpaid depending on whether the employee taking the leave is eligible for paid sick, annual or injury-leave under applicable University Policy. For those eligible for such paid leaves, periods of FM Leave will be with pay to the extent permissible under the specific leave policy or policies and will run concurrently with such leaves. All FM Leaves not covered by paid leave will be without pay.
Intermittent or Reduced Leave Schedule:
FM Leave time may be taken on an intermittent or reduced leave basis if approved by the appropriate department or unit head. However, FM Leaves to care for an ill family member or due to the faculty members' or employees' own serious illness must be approved on an intermittent or reduced leave schedule basis if "medically necessary."
Continuation of Benefits:
Faculty members, administrative professional staff, post-doctoral fellows and veterinary interns receiving Ben-Pay and graduate assistants and veterinary residents receiving the Graduate Assistant Medical Insurance Supplement at the time that a period of FM Leave commences will continue to receive those benefits during periods of FM Leave regardless of whether the leave is with or without pay.
Return From Family Medical Leave:
Faculty members and employees granted FM Leaves under this policy shall be returned to their same positions, or positions of comparable pay and status, upon completion of leaves provided:
a. Employees whose employment is conditional upon student status (e.g. graduate assistants, veterinary residents, student hourlies) shall be returned to their former positions or to positions of like pay and status upon completion of their FM Leaves if their student status at the time of return qualifies them for their former employment status; and
b. Faculty members and employees with appointments subject to specified ending dates or appointments which may be otherwise terminated during the period of FM Leave may not, in accordance with the provisions of the FMLA, be entitled to reinstatement. Departments and units must coordinate questions regarding the status of returning employees with the Benefits Office.
APPENDIX 4: PROCEDURE FOR RESOLUTION OF DISCRIMINATION COMPLAINTS (OTHER THAN SEXUAL HARASSMENT) (last revised January 27, 2006)
It is the policy of Colorado State University that no member of the University community may discriminate against another member of the community on any basis for which discrimination is prohibited by state or federal law or University policy, including, but not limited to, race, color, religion, gender, age, national origin, veteran status, sexual orientation, and disability. Therefore, this appendix provides an internal mechanism at Colorado State University for the expeditious resolution of complaints or discrimination involving actions that are either unlawful or violate University policy, excepting claims of sexual harassment, against the University or any of its academic faculty, administrative professionals, state classified employees, or student employees (separate and apart from this policy, claims of sexual harassment are dealt with in accordance with Appendix 1). It is also possible to pursue complaints through avenues external to the University. These avenues have their own restrictions and time limitations. However, the pursuit of any outside remedy precludes involving the provisions of this appendix.
A. Students
Complaints against students shall be handled in accordance with procedures set forth in Students Rights and Responsibilities in the University General Catalog.
B. State Classified Staff
Complaints against State Classified Staff shall be handled in accordance with procedures set forth in Chapter 8 of the State Personnel Board Rules.
C. Academic Faculty, Administrative Professionals, Other Non-Student Employees (Excepting State Classified Staff), and Student Employees
Complaints against these individuals will be handled in accordance with the policy set forth in this Appendix.
III. Definitions (last revised January 27, 2006)
A complainant is a current or former Colorado State University: student, student employee, academic faculty member, administrative professional, or employee who files a complaint. Volunteers and others who encounter issues covered by this policy are encouraged to contact the OEOD for guidance regarding appropriate channels to pursue.
A respondent is a Colorado State University: academic faculty member, administrative professional, employee, or student employee against whom a complaint is filed.
C. Discriminatory Act or Policy
A discriminatory act or policy is an act or policy that violates state or federal law or University policy with regard to discrimination, including, but not limited to, discrimination based on race, color, religion, gender, age, national origin, veteran status, sexual orientation, and disability.
D. Office of Equal Opportunity and Diversity ("OEOD")
This office is a unit of the University that reports to the President. It is administered by the Director and Associate Director, it attempts to conciliate informal complaints of discrimination, and it investigates and hears formal complaints of discrimination.
The Associate Director of OEOD receives all complaints, both informal and formal, extends all deadlines as deemed appropriate, coordinates the procedures listed under this policy, and informs all parties of the procedures and deadlines under this policy.
The Director of OEOD shall serve as the Hearing Officer for formal complaints that are referred for a hearing. Any party to the Hearing may submit to the vice president of his or her administrative unit a written statement claiming that the Director has a conflict of interest. If the vice president agrees, then he or she shall appoint a different Hearing Officer after consultation with the Office of the General Counsel. If the vice president is a party to the Hearing, then this duty shall be assumed by the President.
A complaint is a written, signed allegation by a Complainant that one (1) or more Respondents has committed one (1) or more discriminatory acts and/or pursued one (1) or more discriminatory policies against the Complainant during the performance of the Respondent's official duties as a University employee. Complainants are advised that there are some instances in which the University has a responsibility to act, even if the Complainant request that no action be taken, such as, for example, where other members of the University community may be at risk.
There are two (2) types of complaints:
1. Informal Complaint
If the Complainant designates the complaint as informal, he or she thereby requests the Associate Director to review and conciliate the matter with the Respondent(s) in the alleged discrimination. The Complainant may change his or her informal complaint to a formal complaint at any time during the process in Section VI or within thirty (30) calendar days after the completion of the process in Section VI, even if this extends beyond the time limit of one hundred eighty (180) calendar days mentioned in Section V.A. A failure to file a formal complaint within this time frame constitute a waiver of the right to file a formal complaint.
2. Formal Complaint
If the Complainant designates the complaint as formal, he or she thereby requests a hearing before the Hearing Officer with the right to appeal the decision to the vice president who oversees the Respondent's area of employment (or the President, if the Respondent is a vice president).
To file either an informal or formal complaint, a prospective complainant must submit to the Associate Director a written signed dated document containing the following information:
A. Identification of the Complainant and Respondent(s) and the nature of their relationships to the University;
B. The type of discrimination alleged (see Section III.C);
C. A description of the circumstances of the alleged discrimination, including the dates(s) and location(s), witnesses, and supporting documents, if available; and
D. A designation of whether the complaint is informal or formal.
V. Time Restriction and Conditions for Filing Either an Informal or Formal Complaint (last revised January 27, 2006)
A. Both informal and formal complaints shall be submitted to the Associate Director within one hundred eighty (180) calendar days from the time the Complainant becomes aware of the alleged discrimination. The Associate Director has the discretion to consider a complaint outside this time frame, but compelling reasons must be given for extending the deadline.
B. The Associate Director shall, within ten (10) working days after the filing of a formal complaint, review the complaint and determine whether the issues raised are of a discriminatory nature (but not whether the claims are true or whether any action is required). If, in the opinion of the Associate Director, discriminatory issues are not present in the complaint, the complaint will not be forwarded to the Hearing Officer, and the Complainant and Respondent(s) shall be notified in writing of this decision. Otherwise, the Associate Director will certify in writing that the issues raised are of a discriminatory nature.
C. A Complainant who has filed a formal complaint that has been heard and resolved has invoked these procedures in lieu of any other internal procedures.
VI. Resolution of Informal Complaints
Informal resolution of discrimination complaints is encouraged whenever possible. In order for an informal complaint to proceed, the parties must have agreed to participate. When an informal complaint is received by the Associate Director, the following steps shall be completed within twenty (20) working days of receipt;A. The Associate Director shall interview the Complainant.
B. The Associate Director shall notify each Respondent in writing that an informal complaint has been filed against him or her and arrange for an interview with each Respondent.
C. The Associate Director shall interview each Respondent.
D. The Associate Director shall interview relevant witnesses as identified by the Associate Director, including, but not limited to, witnesses named by the Complainant and Respondent(s).
E. After the Associate Director conducts the above investigation, the Associate Director will examine the evidence. If the Associate Director finds the complaint to be without merit, it will be dismissed, and all parties shall be notified in writing of the dismissal. If the Associate Director finds merit in the informal complaint, the Associate Director shall attempt to negotiate and conciliate the matter in a manner satisfactory to all parties. Possible outcomes of an informal resolution may include, but are not limited to, an explicit written understanding about future conduct, changes in workplace assignment, or the substitution of one class for another.
F. Any written understanding that is created to resolve an informal complaint requires mutual acceptance by the Complainant, the Respondent(s), and the Associate Director. Such a written understanding shall state that the acceptance of the document by the parties does not imply an admission of wrongdoing or a clearance of charges. It shall also state which issues are being resolved by the document and which issues remain unresolved. Only issues that remain unresolved may be raised later in a formal complaint.
G. If an informal resolution is not achieved, the Associate Director shall notify all parties in writing that the informal process has terminated without a resolution. The Complainant has thirty (30) calendar days from the date that this notification is received to file a formal complaint.
A brief summary of the informal process shall be kept on file in the archives of the OEOD for the duration of the employment of the Complainant and Respondent(s), and it shall be considered to be part of the official Personnel Files of the Complainant and Respondent(s). If the Complaint is dismissed, the summary shall include the reasons for dismissal. If an informal resolution is achieved, the summary shall include the conditions of the resolution, including any written understandings. If a resolution is not achieved, the summary will include a statement to this effect.
VII. Resolution of Formal Complaints
When a formal complaint is filed within the allowed time frame (see Sections III.G.1 and V.A), the Associate Director shall send a written acknowledgment to the Complainant and provide a copy of the formal complaint to each Respondent within five (5) working days after certification of the complaint as set forth in Section V. B.
Each Respondent shall submit a written reply to the Complaint to the Associate Director within fifteen (15) working days from the date of receipt. A copy of each reply shall be sent to the Complainant by the Associate Director within five (5) working days from the date of receipt.
The Complaint and the Reply shall define the issue(s) to be addressed at the Hearing. The Associate Director shall inform the Complainant of this limitation prior to the filing of the Complaint. The Respondent shall be informed of this limitation when the Complaint is sent to him or her. The Associate Director shall forward the Complaint and Reply and other appropriate materials to the Hearing Officer within five (5) working days from the date of receipt.
The Hearing Officer shall notify all parties of the date, time, and location of the hearing at least thirty (30) working days prior to the Hearing date.
E. Submission of Names of Witnesses and Exhibits by the Parties
Within ten (10) working days of being notified of the Hearing date, each party shall submit to the Associate Director a list of proposed witnesses, together with the relevance of each, and all exhibits that he or she intends to present at the Hearing. The Associate Director shall make this material available to all other parties and the Hearing Officer within five (5) working days of the date of receipt. Within five (5) working days after receipt of this material, the parties shall provide a list of rebuttal witnesses to the Associate Director, who will then forward them to the Hearing Officer.
1. Rights of Participants (last revised January 27, 2006)
a. Hearing Officer
The Hearing Officer shall be advised by a representative from the Office of the State Attorney General or the Office of the General Counsel.
b. Complainant and Respondent(s)
Each party may seek the aid and assistance of counsel, both legal and peer, at his or her expense. Legal counsel refers to those counselors selected by the parties who are licensed to practice law, whether or not they are members of the University Community. Peer counsel refers to a member of the University community at the time the complaint was filed. A member of the University community is a current employee or a matriculating student. Each party may select one legal counsel and one peer counsel to serve as advisors during the Hearing.
c. Questioning of Witnesses
The Complainant, each Respondent, and the Hearing Officer shall have the right to hear all testimony and question all witnesses. Furthermore, each Respondent must be afforded the opportunity to question the Complainant. If the Complainant refuses to appear as a witness, then the Hearing shall conclude immediately, and no disciplinary action shall be taken as a result of this Hearing. If the Hearing Officer decides that special circumstances warrant it, the questioning of one or more witnesses may occur with the parties being in different physical locations, but the questioning must occur in a real-time, spontaneous format (e.g., a video conference or a teleconference).
d. Role of Advisors
All advisors shall have the right to be present during the proceedings, to advise their client(s), and to present written material on behalf of their client(s), but they may not speak on behalf of their client(s) during the proceedings.
2. Rules of Evidence
The Hearing Officer shall not be strictly bound by state law governing the use and admissibility of evidence. However, he or she shall not allow evidence that is irrelevant to the issues defined by the Complaint and Reply.
3. Identification of Witnesses and Exhibits
The Hearing Officer shall review the list of witnesses submitted by the Complainant and Respondent(s). The Hearing Officer may add additional witnesses that he or she believes may have knowledge of facts pertinent to the charge. The Hearing Officer shall submit to all parties the names of all witnesses, together with the relevance of each, at least ten (10) working days prior to the Hearing date. Each party shall have five (5) working days from the date of receipt to submit to the Hearing Officer a list of additional rebuttal witnesses, together with the relevance of each. The Hearing Officer shall make this material available to all other parties within five (5) working days of receipt, and at least two (2) working days prior to the Hearing date.
4. Notification of Witnesses
Each proposed witness shall be informed in writing by the Associate Director of the date and place of the formal Hearing and the approximate time the witness is expected to give testimony.
5. Role of Hearing Officer
During the Hearing, the Hearing Officer shall call witnesses, receive exhibits into evidence, and rule on objections, as needed.
6. Hearing
a. Attendance at the formal Hearing shall be limited to the Hearing Officer, Complainant, Respondent(s), advisors, representative from the Office of General Counsel, representative from the Office of the State Attorney General, recorder, and any others the Hearing Officer may deem appropriate (the Hearing Officer shall provide a justification for each such additional attendee).
b. Witnesses other than those persons listed in Section VII.F.6.a shall not be present at the formal Hearing, except when giving testimony before the Hearing Officer.
c. The duplication and dissemination of the formal Complaint, Reply, list of proposed witnesses, and exhibits to be presented at the formal Hearing shall be limited to the Complainant, Respondent(s), Hearing Officer, Associate Director, and advisors. Witnesses may be given access to relevant materials as deemed appropriate by the Hearing Officer. All documents shall be considered confidential to the extent permitted by law.
d. A verbatim record of the Hearing shall be taken, and a printed copy shall be made available, without cost, to the Complainant and each Respondent at his or her request. The University shall bear the cost.
7. Issuance of Hearing Officer's Written Report
The Hearing Officer shall issue a written report within ten (10) working days after the close of the Hearing. The report shall include the Hearing Officer's factual findings and conclusions of law. If the Hearing Officer finds that discrimination did occur, the report shall also contain recommended remedial or disciplinary action, which may include, but is not limited to, training, letter of reprimand, salary reduction, demotion, suspension, or termination of employment. The report shall be sent to all parties and the vice president who oversees each Respondent's area of employment (or the President, if the Respondent is a vice president).8. Written Records
All written records, including the Complaint and each Reply; the verbatim record of the Hearing; supporting documents; the written report of the Hearing Officer; administrative reviews of the Hearing Officer's recommendations; appeals, replies, and results of appeals; and final actions, shall be kept on file in the archives of the OEOD for the duration of the employment of the Complainant and Respondent(s), and these shall be considered to be part of the official Personnel Files of the Complainant and Respondent(s).
VIII. Appeals and Administrative Review
1. Appeal of Hearing Officer's Recommendations
If either the Complainant or any Respondent wishes to appeal the Hearing Officer's recommendations, he or she must file such an appeal in writing with the Hearing Officer and the vice president charged with overseeing each Respondent's area of employment (or the President, if the Respondent is a vice president) within ten (10) working days of the receipt of the Hearing Officer's report. The Hearing Officer shall prepare a written reply to the Appeal within ten (10) working days after receipt. No remedial measures or disciplinary action related to this complaint shall occur until the appeals process has been completed.
2. Vice President's Review of Hearing Officer's Report
Within ten (10) working days of receipt of the Appeal, the Hearing Officer shall forward the Appeal, the reply, and the record of the Hearing to the vice president charged with overseeing each Respondent's area of employment (or the President, if the Respondent is a vice president). The vice presidential (Presidential) review shall be completed within twenty (20) working days. The decision from this review is final. Each party and the Hearing Officer shall be provided with the written result of the vice presidential (Presidential) review, specifying in writing the reasons for support or modification of the Hearing Officer's recommendations with regard to the Respondent(s) overseen by him or her.
3. Administrative Action Following Review of Hearing Officers's Report
If remedial measures are recommended, the vice president (President) will work with the Respondent's supervisor to implement these measures. In the event that disciplinary action is recommended, the vice president will forward the matter to the Respondent's supervisor for consideration of appropriate action as provided for in the Manual or the State Personnel Rules.
1. Vice President's Review of Hearing Officer's Report
If the Hearing Officer's report is not appealed pursuant to Section VIII.A, the vice president (or the President, if the Respondent is a vice president), at his or her sole discretion, may send a written statement to all parties and the Hearing Officer making modifications to the recommendations contained in the report with regard to the Respondent(s) overseen by him or her and providing a written rationale for these modifications.
2. Administrative Action Following Review of Hearing Officer's Report
If remedial measures are recommended, the vice president (President) will work with the Respondent's supervisor to implement these measures. In the event that disciplinary action is recommended, the vice president (President) will forward the matter to the Respondent's supervisor for consideration of appropriate action as provided for in the Manual or the State Personnel Rules.
IX. Expectations for Members of the University Community (last revised January 27, 2006)
A. Cooperation and Participation by Members of the University Community: Cooperation and participation by the members of the University community in the resolution of a Complaint under these procedures is necessary.
B. Truthful Testimony: The Complainant, Respondent(s), and all witnesses shall be truthful in their testimony. This includes statements made in the Complaint and each Reply. Failure to comply with this expectation may result in the implementation of University sanctions.
C. Protection of Participants: No person shall restrain, interfere with, coerce, attempt to intimidate, or take any reprisal against a participant under these procedures. Failure to comply with this expectation may result in the implementation of University sanctions.
D. False or Malicious Charges: Intentionally making false or malicious charges may result in the implementation of University sanctions against the Complainant.