REG 04.25.02 - Resolution Procedures for Discrimination, Harassment and Retaliation Complaints

Authority: Issued by the Chancellor. Changes or exceptions to administrative regulations issued by the Chancellor may only be made by the Chancellor.

History: First Issued: August 30, 1999. Last Revised: August 12, 2014.

Related Policies: 
NCSU POL04.25.05 – Equal Opportunity and Non-Discrimination Policy
NCSU POL05.25.01 – Faculty Grievance and Non-Reappointment Review Policy
NCSU POL11.35.01 - Code of Student Conduct
NCSU REG11.35.02 -- Student Discipline Procedures
NCSU POL05.25.03 -- Review and Appeal Processes for EPA Non-Faculty Employees
NCSU REG11.40.02 – Grievance Procedure for Graduate Students
NCSU REG11.40.01 – Grievance Procedure for Undergraduate Students
NCSU REG04.25.06 - Discrimination and Harassment Prevention and Response Training
UNC System SPA Employee Grievance Policy

Additional References:
Title IX Website

Contact Info: Vice Provost for Equal Opportunity and Equity (919) 515-4559

Additional Contact Information:
Title IX Coordinator   jgwoodar@ncsu.edu (919) 515-4559
Deputy Title IX Coordinator (Complaints/Investigations/Training) accircos@ncsu.edu (919) 513-1234
Deputy Title IX Coordinator (Athletics) swmlee2@ncsu.edu (919) 515-5076
Deputy Title IX Coordinator (Student Development, Health & Wellness) lpzapata@ncsu.edu (919) 513-3403


1. INTRODUCTION

 North Carolina State University (NC State) prohibits discrimination, harassment and retaliation as defined by NCSU POL 04.25.05 - Equal Opportunity and Non-Discrimination Policy. NC State will investigate allegations of discrimination, harassment and retaliation in a prompt, thorough and impartial manner.  NC State will take appropriate steps to address policy violations whenever substantiated to stop the discrimination, harassment or retaliation, to remedy its effects and to prevent its recurrence. This regulation describes the procedure for filing, processing and resolving complaints that allege discrimination, harassment or retaliation. This regulation additionally describes how NC State handles informal reports or concerns of possible discrimination, harassment or retaliation that are not submitted as a complaint for formal processing.

2. DEFINITIONS

2.1 Complaint:  Allegations of discrimination, harassment, or retaliation submitted directly to the Office for Institutional Equity and Diversity (OIED) or referred to the OIED pursuant to a university grievance procedure (as defined below) for formal processing. An EEO Informal Inquiry submitted by an employee covered by the State Human Resources Act (SHRA) (see section 5.4) will be treated as a Complaint. 

2.2 Complainant: An individual (or individuals) who submits a Complaint of discrimination, harassment, or retaliation to the OIED for formal processing pursuant to this procedure.

2.3 Respondent:  The individual (or individuals) named by the Complainant as the person (or persons) who engaged in the alleged discrimination, harassment, or retaliation.

2.4 University Grievance Procedure:  For purposes of this regulation, “university grievance procedure” includes NCSU POL 05.25.01 (Faculty Grievance and Non-Reappointment Review Policy) and NCSU POL 05.25.03 (Review and Appeal Processes for EPA Non-Faculty Employees).  See section 5.4 relating to the SPA Employee Grievance Policy

3. UNIVERSITY’S RESPONSIBILITY

The university has a duty to investigate and to respond appropriately to allegations of discrimination, harassment, or retaliation whether those allegations are reported informally as concerns or are submitted formally as a Complaint.  In other words, the university’s responsibility to investigate allegations of discrimination, harassment or retaliation is not obviated even when, for example:

·         an individual reports a concern involving possible discrimination, harassment, or retaliation, but does not wish to file a Complaint;

·         an individual reports a concern involving possible discrimination, harassment, or retaliation and asks that either his/her identity or the information provided be kept confidential; or

·         an individual anonymously reports possible discrimination, harassment, or retaliation and the report includes sufficient specificity to allow the university to investigate the report.                

4. CONFIDENTIALITY

Allegations of discrimination, harassment, or retaliation will be handled in a manner that balances an individual’s preferences regarding confidentiality with the university’s legal obligations. Complete confidentiality cannot be guaranteed, and information about discrimination, harassment and retaliation allegations may be shared with others when necessary to investigate or address the prohibited conduct or to prevent its recurrence. Sharing of information will be limited to persons with a need to know basis. If an individual requests complete confidentiality and/or asks that the university not investigate or seek action against the alleged perpetrator, such request may limit the university’s ability to respond fully to the complaint, including pursuing any disciplinary action against the alleged perpetrator.  The university ultimately determines whether or not it can honor such a request while providing a safe and nondiscriminatory environment for the university community.  Such determination shall be made by the OIED, in consultation with the Office of General Counsel, and, in cases of sexual violence, with the Title IX Coordinator. 

Individuals bringing forth allegations of sexual violence who request complete confidentiality are strongly encouraged to consult with individuals, who by law have special professional status, such as mental health counselors, physicians, clergy or private attorneys.

In an effort to protect privacy as well as the integrity of the Complaint process, Complainants, Respondents, witnesses and any other individuals who may have information about a Complaint are expected to maintain confidentiality to the extent permitted by law.

5. FORMAL PROCESS(ING) 

The submission (filing or referral) of a Complaint to the OIED initiates the formal process/formal processing (preliminary review, investigation, determination) as provided for in this procedure.  

5.1 Filing a Complaint.

Any individual may file a Complaint by:

·         Bringing the Complaint to the OIED office located at 231 Winslow Hall, 40 Pullen Drive, Raleigh NC 27607;

·         Mailing or otherwise transmitting the Complaint to the OIED at Campus Box 7530, NC State University, Raleigh, NC 27695-7530; or

·         Completing the OIED’s online OIED Complaint Intake Form.

For formal processing, Complaints must be submitted to the OIED within 30 calendar days of the alleged action that forms the basis of the Complaint.  Complaints submitted outside of the 30-day time limit will be reviewed and addressed as determined by OIED. 

*Note:  Pursuant to the SPA Employee Grievance Policy, SPA employees must file a Complaint with the OIED within 15 calendar days of the alleged discriminatory, harassing or retaliatory action that forms the basis of the Complaint before initiating a formal internal grievance to preserve their rights under State law.  Employees who do not meet the 15-day time limit may still file a Complaint with the OIED; such Complaint will be reviewed and addressed through either formal processing (if filed within 30 calendar days of the action) or through the informal resolution process, as may be required by Federal law.  See section 5.4.        
5.2 Referral of Student Complaints to the Office of Student Conduct

Complaints filed against students will be referred to the Office of Student Conduct (OSC) to be processed through the Student Discipline Procedures.  Referrals to the OSC will usually occur within three university business days from receipt of the Complaint.  Complaints filed by students against university employees (administrators, faculty or staff) will proceed through formal processing as provided for in this procedure.

5.3 Referral of Employee Complaints to the OIED (through a University Grievance Procedure).

Allegations of discrimination, harassment, or retaliation (not previously filed directly with the OIED as a Complaint) that are included in a grievance filed pursuant to a University Grievance Procedure will be considered a Complaint and referred to the OIED for formal processing (and handling as otherwise provided for in the applicable University Grievance Procedure).  In order to expedite OIED’s formal processing of the Complaint, the referral should occur as soon as possible after the grievance is filed. 

5.4 Equal Employment Opportunity Informal Inquiry (SPA Employees Only).

Employees and applicants covered by the university’s SPA Employee Grievance Policy who want to file a grievance that includes allegations of discrimination, harassment, or retaliation, must first file an Equal Employment Opportunity (EEO) Informal Inquiry with the OIED prior to filing the internal grievance. For purposes of this regulation and unless otherwise noted, an EEO Informal Inquiry is the same as a Complaint.  An EEO Informal Inquiry must be filed with the OIED within 15 calendar days of the alleged action that forms the basis of the Complaint.  Due to the timelines imposed by the SHRA for internal grievances, the university has 45 calendar days from receipt of the EEO Informal Inquiry to conduct its investigation and respond back to the Complainant.  The 45-day time limit may be extended due to unavoidable delays or occurrences; the Complainant and the university must mutually agree in writing to an extension, which may not exceed 15 calendar days. 

5.5 External Filing of Discrimination Charge, Civil Suit or Criminal Charge

The submission of a Complaint to the OIED pursuant to this procedure does not preclude an individual from filing an external charge of discrimination, harassment, or retaliation directly with the Equal Employment Opportunity Commission (EEOC), the Office of Administrative Hearings-Civil Rights Division (OAH-CRD), U.S. Department of Education, Office of Civil Rights (OCR), or other relevant agency, nor does it prevent an individual from pursuing a related civil action or criminal charge.

6.  PRELIMINARY REVIEW

6.1 Once a Complaint has been submitted to the OIED, an investigator will conduct a preliminary review of the Complaint to determine whether the Complaint alleges facts that, if true, might constitute a violation of NCSU POL 04.25.05 (Equal Opportunity and Non-Discrimination Policy). The Complainant is responsible for providing the basis of his or her Complaint to the investigator. Where the allegations are unclear or require clarification, the OIED investigator may seek additional information from the Complainant as part of the preliminary review.

6.2 When a preliminary review of a Complaint indicates that the allegations, if true, might constitute a violation of the Equal Opportunity and Non-Discrimination Policy (“policy violation”), the OIED will initiate an investigation to determine if the facts are true and to determine whether a policy violation has occurred.

6.3 When the preliminary review of the Complaint indicates the allegations within the Complaint would not constitute a policy violation, the investigator will administratively close the formal processing of the Complaint.  The investigator will notify the Complainant in writing that the formal process has been administratively closed because the allegations, even if taken as true, would not constitute a policy violation. When a Complaint is administratively closed following a preliminary review, the closure precludes the issues raised in the Complaint from proceeding through the university grievance procedure. When appropriate, the OIED will consult with the supervisor to ensure that any inappropriate conduct is addressed, even when the allegations do not rise to the level of a policy violation.

6.4 If the Complaint raises issues (i.e. health/safety, research misconduct, tort claims) that would fall outside the OIED’s area of responsibility but within the responsibilities of another campus unit, the OIED can refer the issues to the appropriate, responsible university administrator. 

6.5 If administrative action is taken to address an employee’s conduct prior to the commencement or completion of an OIED investigation, the OIED will make a determination as to whether to pursue the investigation or to administratively close the formal process.

7. INVESTIGATION

7.1 If the preliminary review indicates that an investigation should be initiated, the OIED will, at such time as is appropriate, notify the supervisor(s) of the respondent about the investigation. The OIED will also notify the respondent(s) after the investigation has been initiated and that the respondent will be provided with the opportunity to respond to the allegations.

7.2 Every effort will be made to complete the investigation within 60 calendar days of the filing or referral of the Complaint, however, the investigation period may be extended when deemed necessary by the OIED (e.g., due to university holidays or breaks, based on availability of witnesses). (See section 5.4 regarding the time to complete formal processing of an EEO Informal Inquiry pursuant to the SPA Employee Grievance Policy.)

7.3 If a Complainant fails to respond to the OIED’s  requests to provide information regarding the Complaint or fails otherwise to participate in the investigation, the OIED may administratively close the formal process without issuing a determination or may issue a determination based on the information available in the record.

7.4 If during the course of the investigation the OIED becomes aware of any retaliation or interference in the investigation by the Complainant, Respondent or any witness, the OIED will refer such issue to Employee Relations, the appropriate supervisor, or, in the case of students, to the Office of Student Conduct.

8. NOTIFICATION

8.1 Once the investigation has concluded, the OIED will evaluate the information collected during the investigation (e.g., documents, interview notes) and apply a preponderance of evidence (more likely than not) standard to determine whether a policy violation is substantiated. 

8.2 For Complaints involving sexual misconduct, the Complainant’s past sexual history will not be considered in determining whether a policy violation occurred.  
8.3 The OIED investigator’s findings and determination will be included in a written report.

9.  DETERMINATION

9.1 Notification to Parties

The OIED will notify the parties in writing of the outcome of the investigation and determination as to whether any policy violation was substantiated.  If the OIED determines there has been no policy violation, the notification to the parties concludes the formal process. If the Complaint was referred to the OIED through a University Grievance Procedure, the OIED will notify the appropriate entity that the formal process has concluded.    

9.2 Written Report.

The OIED’s written report will be provided to the appropriate supervisor(s), with a copy provided to Office of General Counsel and Employee Relations. 

9.3 Confidential Information.

The  notification letters to the parties and the OIED written report shall be treated as confidential to the extent that they contain student information protected under federal privacy law (i.e. FERPA) or employee information protected under state law (i.e. SHRA). Violation of the confidentiality requirement may result in disciplinary action for anyone disclosing such confidential information. Confidential student and employee information includes information that can identify persons who are Complainants, Respondents or witnesses.

10. CORRECTIVE ACTION

10.1 In cases where a policy violation is substantiated, the OIED investigator will meet with the appropriate supervisor(s) and others as needed (e.g., Office of General Counsel, Employee Relations) to discuss taking appropriate corrective action, including possible disciplinary action, to resolve the policy violation and prevent its recurrence.

10.2 The appropriate supervisor(s) will notify the OIED of what corrective action(s) have been taken to address the policy violation.

10.3 Complainants will be notified that the corrective action taken to address the policy violation, however, Complainants are not authorized to access to the confidential employment information contained in another employee’s personnel file, unless as permitted by law.

11.  COMPLAINT RESOLUTION

11.1 If the corrective action taken meets the university’s obligations to address the policy violation and resolves the Complaint to the Complainant’s satisfaction, the formal process will be concluded and closed. 

11.2 If the corrective action taken meets the university’s obligations to address the policy violation, but the Complainant remains unsatisfied, the Complainant may seek to pursue any rights he or she may otherwise have available.

12. INFORMAL PROCESS(ING)

12.1 At any time after submission of a Complaint to the OIED, a Complaint may be resolved through an informal process provided that: (1) the Complainant(s) and Respondent(s) mutually agree to the terms and conditions of any proposed resolution agreement, and (2) the OIED approves the proposed resolution agreement.

12.2 At any time from the submission of the Complaint, either party or the OIED may suggest a confidential, non-binding mediation of the dispute.  Both parties must agree to participate in the mediation and agree to the resolution that arises from the mediation.  In addition, OIED must approve the proposed resolution agreement. Mediation is not an option for resolution of allegations of sexual harassment that involve sexual violence.

12.3 Allegations of discrimination, harassment, or retaliation that are untimely or that are reported to the OIED as concerns (and not submitted as a Complaint for formal processing) will be reviewed, investigated as appropriate, and addressed through corrective action (if applicable) to meet the university’s legal obligations. However, the OIED is not required to follow the formal process and has greater flexibility in handling and resolving these types of allegations.