History: First Issued: August 11, 2020, with an Effective Date of August 14, 2020.
NCSU POL04.25.05 – Equal Opportunity, Non-Discrimination and Affirmative Action Policy
NCSU POL05.25.01 – Faculty Grievance and Non-Reappointment Review Policy
NCSU POL11.35.01 – Code of Student Conduct
NCSU POL 04.25.07 – Title IX Sexual Harassment Policy
NCSU POL05.25.03 — Review and Appeal Processes for EHRA Non-Faculty Employees
NCSU REG11.35.02 — Student Discipline Procedures
NCSU REG04.25.06 – Discrimination and Harassment Prevention and Response Training
NCSU REG11.35.04 – Written Student Complaint
UNC System SHRA Employee Grievance Policy
Contact: Vice Provost for Institutional Equity and Diversity (919) 515-4559
This regulation serves as a companion to NCSU POL 04.25.07 (Title IX Sexual Harassment Policy) to outline the specific procedures relating to the Title IX Sexual Harassment Complaint Resolution Process at North Carolina State University (NC State). The procedures in this regulation also apply to complaints of sexual misconduct in violation of Title IX where (1) the conduct occurred prior to August 14, 2020, and (2) the matter is reported or is still pending on or after August 14, 2020.
To the extent there are any inconsistencies in the definitions in this regulation and in POL 04.25.07, the definitions in POL 04.25.07 shall control. For purposes of this regulation, the following definitions shall apply:
- “Actual Knowledge” means notice of allegations of Title IX Sexual Harassment or Retaliation provided to NC State’s Title IX Coordinator or one of NC State’s Title IX Designated Officials.
- “Complainant” means a person to whom the alleged Title IX Sexual Harassment was directed. At the time of filing a Formal Complaint, a Complainant must be participating in, or attempting to participate in, an NC State Education Program or Activity.
- “Complaint Resolution Process” means NC State’s procedures for resolving Formal Complaints of Title IX Sexual Harassment and includes the filing of a Formal Complaint, provision of Supportive Measures, preliminary review of the Formal Complaint, investigation, hearing, any informal resolution proceedings, imposition of any disciplinary and/or remedial actions, and appeals.
- “Consent” means an affirmative decision to engage in an activity given by clear action or words. It is an informed decision made freely, willingly, and actively by all parties. Behavior will be considered “without consent” if no clear consent, verbal or nonverbal, is given. Consent cannot be procured by physical force, threats, intimidating behavior, or coercion. A person cannot give consent if they are incapacitated as a result of alcohol or drug consumption (voluntary or otherwise), unconscious, unaware or asleep during the act, under the legal age to provide consent, or otherwise lack the capacity to consent. In determining whether a person is incapacitated, the analysis must include whether the Respondent knew or should reasonably have known that the person was incapacitated. Neither silence nor a lack of protest or resistance is a valid form of consent. Consent can be revoked or withdrawn at any time, even during a sexual act. If consent is withdrawn, the act is no longer consensual.
- “Day” means calendar days. If the day to take an action lands on a Saturday, Sunday, or day that the University is closed (such as a holiday), the deadline shall be extended to the next business day.
- “Education Program or Activity” includes locations, events, or circumstances over which NC State exercises substantial control over both the Respondent and the context in which the Title IX Sexual Harassment occurs (including employment), and also includes any building or property owned or controlled by NC State or a student organization that is officially recognized by NC State.
- “Formal Complaint” means a document filed by a Complainant or signed by the Title IX Coordinator alleging Title IX Sexual Harassment against a Respondent and requesting that the university investigate the allegation(s) of Title IX Sexual Harassment.
- “Hearing Officer” is a person appointed by the University to oversee the Title IX hearing and to render a determination of responsibility regarding the allegations in the Complaint. A Hearing Officer may be an employee of the University or a person from outside the University engaged specifically for this function.
- “NC State’s Title IX Designated Officials” or “Title IX Designated Officials” are personnel authorized by NC State to receive notice of Title IX Sexual Harassment and Retaliation and to institute corrective measures. Title IX Designated Officials are listed on the Title IX Designated Officials website.
- “Office for Institutional Equity and Diversity” or “OIED” is the University office responsible for, among other duties, investigating allegations of Title IX Sexual Harassment. The OIED is located at 231 Winslow Hall, 40 Pullen Drive, Raleigh NC 27607 and has a mailing address of Campus Box 7530, NC State University, Raleigh, NC 27695-7530.
- “Parties” is a collective term used to describe both Complainant(s) and Respondent(s) named in a Formal Complaint of Title IX Sexual Harassment. “Party” is an individual term used to describe either a Complainant or Respondent named in a Formal Complaint of Title IX Sexual Harassment.
- “Report” means a disclosure of information by any person to the Title IX Coordinator or an NC State Title IX Designated Official that includes allegations that may be covered by the Title IX Sexual Harassment policy. A Report is different from a Formal Complaint.
- “Respondent” means a person who has been reported to have engaged in conduct that could constitute Title IX Sexual Harassment.
- “Retaliation” is intimidating, threatening, coercing, or discriminating against any person for the purpose of interfering with any right or privilege secured by Title IX or POL 04.25.07 because the person made a report or complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this policy or the companion regulations.
- “Support Person” is a person selected by a Party who may accompany the Party to any meeting, interview or hearing as part of the Complaint Resolution Process and who will provide emotional support and/or comfort to the Party. A Support Person may not be a witness in the same proceeding.
- “Supportive Measures” means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the Education Program or Activity without unreasonably burdening the other party and include measures designed to protect the safety of all parties or the educational environment or to deter Sexual Harassment. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties (no contact orders), changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
- “Title IX Coordinator” is the Vice Provost for the Office for Institutional Equity and Diversity and is the person designated to coordinate NC State’s efforts to comply with its responsibilities under Title IX of the Education Amendments of 1972 and its related regulations. As used in this regulation, reference to the Title IX Coordinator also includes their designee. The Title IX Coordinator’s contact information is contained on the OIED website.
- “Title IX Sexual Harassment” is defined in NC State POL 04.25.07, Title IX Sexual Harassment Policy
3. UNIVERSITY’S RESPONSE TO TITLE IX SEXUAL HARASSMENT
3.1 NC State will respond as appropriate to allegations of sexual harassment whether those allegations are the subject of a Report or are submitted as a Formal Complaint of Title IX Sexual Harassment.
3.2 When a Formal Complaint is filed, NC State will follow its Complaint Resolution Procedures as described in this regulation and will:
- treat Complainants and Respondents equitably;
- provide Supportive Measures to Complainants and Respondents;
- provide remedies to the Complainant where a determination of responsibility for Title IX Sexual Harassment has been made against the Respondent;
- follow the Complaint Resolution Process described in this regulation before imposing any disciplinary sanctions or other actions that are not Supportive Measures against a Respondent;
- require that any person designated as a Title IX Coordinator, investigator, decision-maker, or other person authorized to facilitate an informal resolution not have a conflict of interest or bias for or against Complainants or Respondents either generally or in particular;
- require training that meets the requirements established by federal law for Title IX Coordinators, investigators, decision-makers, and any person who is authorized to facilitate an informal resolution;
- presume that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Complaint Resolution Process;
- use the preponderance of evidence standard to determine responsibility, that is, whether the information available demonstrates that it is “more likely than not” that the Respondent violated the Title IX Sexual Harassment policy;
- provide an objective evaluation of all relevant evidence and not base any credibility decisions on a person’s status as a Complainant, Respondent or witness;
- not require, allow, rely upon or otherwise use questions or evidence that would elicit information protected under a legally recognized privilege, unless the person holding the privilege has waived it;
- not allow, rely upon or otherwise use questions or evidence about a Complainant’s prior sexual behavior, unless such questions or evidence are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if they concern specific incidents of the Complainant’s prior sexual behavior with the Respondent, are offered to prove consent;
- when making a determination of responsibility regarding an allegation of Title IX Sexual Harassment, not rely on any statement of a party or witness who does not submit to cross-examination at a hearing;
- not draw any inference about the determination of responsibility based solely on a party’s or witness’s absence from a hearing or refusal to answer cross-examination or other questions;
- establish a reasonable time frame for the completion of the Complaint Resolution Process and any appeals and provide for delays or extensions of time for good cause;
- describe the range of possible disciplinary actions or remedies that may be implemented following a determination of responsibility;
- describe the range of Supportive Measures available to Complainants and Respondents; and
- provide an appeal process.
Except as required or allowed by law, or as necessary to conduct any investigation or hearing, the University will not disclose the identity of any individual who has made a Report or filed a Formal Complaint alleging Title IX Sexual Harassment, any Complainant(s), any Respondent(s), or Witnesses.
Anonymous Reports may be submitted to the OIED and Title IX Designated Officials; however, NC State’s ability to respond or take further action from an anonymous Report may be impacted by the level of information available about the incident or the individuals involved.
Complete confidentiality cannot be guaranteed during the Complaint Resolution Process as information about Title IX Sexual Harassment may be shared with others when necessary to investigate or address the prohibited conduct or to prevent its recurrence.
5. REPORTING TITLE IX SEXUAL HARASSMENT
5.1 Filing a Report
Any person may make a Report at any time, including during non-business hours, regarding Title IX Sexual Harassment (whether or not the person reporting is the person impacted by the alleged conduct) or Retaliation through any of the following mechanisms:
- In person by speaking to the Title IX Coordinator, any of the Equal Opportunity and Equity (EOE) investigators (whose offices are located in the OIED), or any of NC State’s Title IX Designated Officials;
- By delivering, mailing, or otherwise transmitting the Report to the OIED;
- By calling OIED at (919) 513-0574;
- By emailing the Report to email@example.com;
- By completing the OIED online Discrimination, Harassment, and Retaliation Report Form, found at go.ncsu.edu/safe, or
- Through any other means that results in the Title IX Coordinator receiving the person’s verbal or written Report.
5.2 Upon receiving a Report containing allegations of Title IX Sexual Harassment, the Title IX Coordinator will promptly contact the Complainant to discuss the availability of Supportive Measures (whether or not a Formal Complaint is filed), consider the Complainant’s wishes with respect to Supportive Measures, and explain the Title IX Complaint Resolution Process, including the option to file a Formal Complaint.
6. FILING A FORMAL COMPLAINT OF TITLE IX SEXUAL HARASSMENT AND INITIAL RESPONSE
6.1 Filing a Formal Complaint
A Complainant or the Title IX Coordinator may file a Formal Complaint at any time by submitting any written document that is physically or electronically signed by the Complainant or Title IX Coordinator, alleges Title IX Sexual Harassment or Retaliation, and requests that the university investigate the allegation. The Formal Complaint may be submitted to the OIED through any of the following mechanisms:
- By delivering, mailing, or otherwise transmitting the Formal Complaint to the Title IX Coordinator;
- By emailing the Formal Complaint to firstname.lastname@example.org;
- By completing an OIED Formal Complaint Form; or
- Through any other means that results in the Title IX Coordinator receiving the person’s signed Formal Complaint.
6.2 As soon as practicable after receiving a Formal Complaint, and with sufficient time to prepare for any interview or meeting, the Title IX Coordinator will provide a written notice to all known Parties that will include: NC State’s Title IX Sexual Harassment Complaint Resolution Process; the allegations potentially constituting Title IX Sexual Harassment, including information known at the time about the identities of the Parties involved, the conduct allegedly constituting Title IX Sexual Harassment, and the date and location of the incident (if known); and other pertinent information. Should additional allegations arise after the original notification has been provided to the Parties, the University will supplement the notification to the Parties.
6.3 In appropriate circumstances, to address imminent threats posed to any person’s physical health or safety as a result of the Title IX Sexual Harassment allegations, NC State may evaluate whether to remove a Respondent from its Education Program and Activities on an emergency basis or to place an employee on administrative leave with pay during the Title IX Sexual Harassment Complaint Resolution Process.
- Emergency Removal. NC State may remove a Respondent from its Education Program or Activity on an emergency basis following an individualized safety and risk analysis that determines there is an immediate threat to the physical health or safety of any individual arising from the allegations of Title IX Sexual Harassment. The Respondent shall have the opportunity to challenge the decision immediately following the removal. The procedures related to this emergency removal are contained in Appendix F of the Student Discipline Procedures (NCSU REG 11.35.02).
- Administrative Leave. NC State may place an employee on administrative leave with pay (or investigatory placement with pay for SHRA employees) during the Title IX Sexual Harassment Complaint Resolution Process.
7. PRELIMINARY REVIEW OF FORMAL COMPLAINTS
Once a Formal Complaint has been submitted, the OIED will conduct a preliminary review of the Formal Complaint to determine whether:
- The conduct is alleged to have occurred in the United States;
- The conduct is alleged to have occurred in an Education Program or Activity; and
- the Formal Complaint alleges facts that, if true, may constitute a violation of NCSU POL 04.25.07 (Title IX Sexual Harassment Policy).
When the preliminary review of the Formal Complaint indicates the allegations within the Formal Complaint would not constitute Title IX Sexual Harassment, even if all the facts alleged are true, OIED must dismiss the Complaint consistent with Section 11 of these procedures. If dismissed, OIED will provide a Notice of Dismissal of the Formal Complaint to the Parties and information regarding how to appeal the decision.
The dismissal of a Formal Complaint under the university’s Title IX Sexual Harassment procedures does not preclude action under another university policy such as the Code of Student Conduct (POL 11.35.01) or the Equal Opportunity, Non-Discrimination and Affirmative Action Policy (NCSU POL 04.25.05).
8. INFORMAL RESOLUTION
Except for matters asserted by a student Complainant against an employee Respondent, at any time after the filing of a Formal Complaint but before a determination regarding responsibility is reached, the Parties may choose to participate in an informal resolution process facilitated by the university.
An informal resolution is an informed, signed, voluntary agreement between the Parties and NC State to resolve a Formal Complaint utilizing strategies such as facilitations, educational interventions, or other restorative principles to address the concern, prevent its recurrence, and/or restore the community. The informal resolution process allows the parties an opportunity to resolve the issue without a formal hearing and the process is facilitated by a trained, neutral facilitator provided by NC State. The facilitator may be an NC State employee or an external third-party. The informal resolution process does not result in a determination regarding a Title IX Sexual Harassment policy violation.
If the Parties reach an agreement during the informal resolution process, the resolution is binding. Any breach to any terms identified in the signed, voluntary agreement may result in disciplinary action.
To participate in the informal resolution process, all Parties must provide voluntary, written consent after reviewing a written notice disclosing the allegations, the parameters of the informal resolution process, and the Parties’ right to withdraw from the informal resolution process and resume the formal Title IX Sexual Harassment Complaint Resolution Process.
9.1 Throughout the Title IX Sexual Harassment Complaint Resolution Process, Parties are allowed to have, at their own expense, an Advisor of their choice, who may be, but is not required to be, an attorney.
9.2 After the final investigative report is prepared and the University and Parties are preparing for a hearing, if a Party has not yet secured an Advisor of their choice, the University will provide an Advisor to the Party.
9.3 Role of an Advisor.
- The role of an Advisor is to assist and to advise the Party.
- Each Party may be accompanied by their Advisor to any interview, meeting, hearing, or proceeding they have during the Title IX Sexual Harassment Complaint Resolution Process.
- The Advisor’s name and relationship to a Party (e.g., family member, attorney, friend, etc.) must be disclosed to the OIED prior to the first interview, meeting, hearing, or proceeding for which they will serve as the Advisor. Advisors are not permitted to speak on the behalf of a Party during any interview or meeting prior to a hearing. The University reserves the right to remove an Advisor from any interview or meeting should these expectations be violated.
- The Party’s Advisor may inspect and review any evidence directly related to the allegations raised in the Formal Complaint and any investigative report prepared.
- At a hearing, each Party’s Advisor is permitted to ask the other Party and any witnesses relevant questions. Parties may only question other Parties or witnesses through an Advisor, and the Advisor must pose the questions in a respectful, non-intimidating, and non-abusive manner.
- Each Party will be provided with information concerning hearing procedures at least ten (10) days in advance of a hearing. These procedures will outline expectations for conduct of a Party and that Party’s Advisor during the hearing, including but not limited to, expectations with regard to confidentiality, decorum, prohibitions on interruptions of testimony, the procedure for conferring with a Party and/or Advisor and/or requesting a break, and order of presentation of evidence. The University reserves the right to remove an Advisor and/or Party from a hearing should they fail to abide by the hearing procedures.
9.4 The University will not intentionally schedule meetings or hearings on dates where the Advisor for a Party is not available, provided that the Party’s Advisor acts reasonably in providing available dates and works collegially to find dates and times that meet all schedules. The University’s obligations to investigate and adjudicate in a prompt time frame under Title IX and other college policies apply to matters governed under this Policy, and the University cannot agree to extensive delays solely to accommodate the schedule of an Advisor. The determination of what is reasonable shall be made by the Title IX Coordinator. The University will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an Advisor, and may offer the party the opportunity to obtain a different Advisor or use one provided by the University.
10. INVESTIGATION OF FORMAL COMPLAINTS, REVIEW OF EVIDENCE, AND INVESTIGATIVE REPORT
In cases where a Formal Complaint is filed and not dismissed as described in Section 11 or otherwise resolved through an informal resolution process described in Section 8, NC State will investigate the allegations of Title IX Sexual Harassment. During the investigation, NC State will:
- provide an equal opportunity for the Parties to present witnesses and evidence in the investigation;
- allow the Parties to have an Advisor of their choice to be present at any interview, meeting or related proceeding;
- provide written notice of the date, time, location, participants and purpose of any investigative interview or meeting to a Party whose participation is invited or expected, with sufficient time for the Party to prepare to participate;
- provide the Parties (and their Advisors, if applicable) with an equal opportunity to inspect and review any evidence obtained in the investigation that is directly related to the allegations raised in the Formal Complaint, and allow the Parties a period of at least ten (10) days to review the evidence in an electronic or hard-copy format (the format determined at the sole discretion of the University), and to allow the Parties to provide a written response to the University to consider prior to the conclusion of the investigation;
- make available at hearing any evidence obtained in the investigation that is directly related to the allegations raised in the Formal Complaint;
- not access, consider, disclose or otherwise use a Party’s medical, psychological, and similar records made or maintained by a physician, psychiatrist, psychologist, or other recognized professional unless the Party provides a voluntary, written consent to do so for purposes of the Title IX Sexual Harassment Complaint Resolution Process;
- create an investigative report that summarizes the relevant evidence, allow Parties to review the drafted report and provide clarifications or feedback and, at least ten (10) days prior to a hearing (if a hearing is to be held) send a copy of the investigative report to each Party (and their Advisor, if applicable) for their review and written response; and
- review any written responses received relating to the investigative report, finalize the report; and include the written responses as attachments to the report
11. DISMISSAL OF COMPLAINT
11.1 Mandatory Dismissal. As required by law, a Formal Complaint for Title IX Sexual Harassment must be dismissed if the conduct alleged in the Formal Complaint:
- would not constitute Title IX Sexual Harassment even if the allegations are true;
- did not occur as part of an NC State Education Program or Activity; or
- did not occur in the United States.
11.2 Permissive Dismissal. A Formal Complaint may be dismissed at any time during the Title IX Sexual Harassment Complaint Resolution Process if:
- Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any of the allegations therein;
- Respondent is no longer enrolled or employed at NC State; or
- specific circumstances prevent NC State from gathering evidence sufficient to reach a determination regarding the allegations in the Formal Complaint.
11.3 Notice of Dismissal. If the Formal Complaint is dismissed under the university’s Title IX Sexual Harassment procedures, OIED will provide a simultaneous Notice of Dismissal of Formal Complaint to the Parties in writing with the reason for the dismissal.
11.4 Effect of Dismissal. The dismissal of a Formal Complaint under the university’s Title IX Sexual Harassment procedures does not preclude action under another university policy such as the Code of Student Conduct (POL 11.35.01) or the Equal Opportunity, Non-Discrimination and Affirmative Action Policy (NCSU POL 04.25.05).
11.5 Appeal of Decision to Dismiss. Either Party may appeal the decision to dismiss the Formal Complaint.
12.1 The procedures governing the hearing process for student Respondents are contained in Appendix G of the Student Discipline Procedures, REG 11.35.02.
12.2 The procedures governing the hearing process for employee Respondents are contained in Appendix A of this regulation.
13. DETERMINATION OF RESPONSIBILITY
13.1 The decision-maker (i.e., hearing officer) will apply a preponderance of the evidence standard in determining whether the Respondent is responsible for engaging in Title IX Sexual Harassment.
13.2 The decision-maker’s written determination will include a description of the allegation(s) at issue; a description of the procedural steps taken since receipt of the Formal Complaint; findings of fact to support the determination; conclusions regarding the application of the University’s policy or policies to the facts; conclusions relating to each allegation, including a determination regarding responsibility and rationale; any disciplinary action to be imposed upon the Respondent; any remedies to be provided to the Complainant for the purpose of restoring or preserving equal access to an Education Program or Activity; and the procedures and permissible bases for appeal.
13.3 The procedures governing the determination of responsibility for student Respondents are contained in Appendix G of the Student Discipline Procedures, REG 11.35.02.
13.4 The procedures governing the determination of responsibility for employee Respondents are contained in Appendix A of this regulation.
Either Party may appeal the decision to dismiss a Formal Complaint (or any allegations therein) or a determination regarding responsibility.
14.1 The procedures governing the appeals for student Respondents are contained in Appendix G of the Student Discipline Procedures, REG 11.35.02.
14.2 The procedures governing the appeals for employee Respondents are contained in Appendix A of this regulation.
15. RECORD KEEPING
NC State will maintain for a period of at least seven (7) years all of the following Title IX Sexual Harassment records:
- Title IX Sexual Harassment investigation documents;
- any determination of responsibility;
- any hearing recording or transcript;
- any disciplinary action or sanction imposed on the Respondent;
- any remedies provided to the Complainant;
- any appeal and appellate decisions;
- any informal resolution and their results;
- any actions taken in response to a Report or Formal Complaint of Title IX Sexual Harassment (including any Supportive Measures); and
- any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.
16. RELATIONSHIP TO OTHER NON-DISCRIMINATION LAWS AND POLICIES
This regulation and its companion policy set forth the process to address complaints of Title IX Sexual Harassment at NC State.
Reports of discrimination or harassment on the basis of sex or of a sexual nature that do not meet the definition of Title IX Sexual Harassment may be prohibited by other policies, including but not limited to, the Equal Opportunity, Non-Discrimination and Affirmative Action Policy (NCSU POL 04.25.05).
Nothing in this regulation is intended to (a) restrict any rights that would otherwise be protected from government action by the First Amendment of the United States Constitution; or (b) deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution; or (c) restrict any other rights guaranteed against government action by the United States Constitution.
Nothing in this regulation diminishes any person’s rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq or any regulations promulgated thereunder.
17. TIMELINES WITHIN THE PROCEDURES
The University will conduct its Title IX Sexual Harassment Complaint Resolution Process in a reasonably prompt manner, generally not exceeding one-hundred twenty (120) days after the filing of a Formal Complaint. For any timelines or deadlines included in these procedures for the Title IX Sexual Harassment Complaint Resolution Process, the timelines may be extended and/or the Complaint Resolution Process may be temporarily delayed for good cause. In the case of such an extension, the Parties will receive notification in writing and the reason(s) for the extension. Examples of good cause could include, but are not limited to, the unavailability of Parties or witnesses, the need for language assistance, or the need to accommodate disabilities.
|General Timelines for Title IX Complaint Resolution Process|
|Review evidence and investigative report before report is finalized
|Notice prior to a hearing
Appendix A – Notice and Pre-Hearing #1
Student Discipline Procedures, REG 11.35.02, Appx. G, Section 4.6
|Opportunity for Parties to appeal
Appendix A – Appeals #6
Student Discipline Procedures, REG 11.35.02, Appx. G, Section 7.2
|Opportunity for additional Party to appeal following notice of initial Party appeal
Appendix A – Appeals #6
Student Discipline Procedures, REG 11.35.02, Appx. G, Section 7.4
HEARING PROCEDURES FOR EMPLOYEE RESPONDENTS
Notification and Pre-hearing
- The Title IX Coordinator will appoint a Hearing Officer to hear the matter and will confirm the Hearing Officer does not have a conflict of interest that would prevent them from remaining neutral. The Title IX Coordinator has the discretion to appoint a trained University employee or an external adjudicator to serve as the Hearing Officer.
- The Parties will receive written notice of the allegations of Title IX Sexual Harassment to be reviewed at the hearing, the name of the Hearing Officer, and the date(s) of the hearing at least ten (10) days prior to the hearing.
- Either Party must notify the Title IX Coordinator within five (5) days of delivery of the notice if they believe the Hearing Officer assigned to the case has a conflict of interest or bias such that the Hearing Officer could not provide for a fair hearing. The Title IX Coordinator shall have the discretion to remove or re-appoint a Hearing Officer if deemed necessary to address a reported conflict of interest or bias.
- A Respondent, Complaint, Advisor, or Support Person should not engage in ex parte communications with the Hearing Officer.
- Prior to the hearing, the Hearing Officer may ask the Parties whether they are able to stipulate or agree to any undisputed facts that would be entered into the record and intended to expedite the hearing.
- Each Party shall have the opportunity to present their case at the hearing, including an equal opportunity to present fact and expert witnesses and any inculpatory and exculpatory evidence.
- If a Complainant or Respondent fails to appear at the hearing after receiving the appropriate notice and there are no extenuating circumstances that explain the failure to appear, the Hearing Officer may proceed with the hearing. The Hearing Officer will not draw any inferences about the Party’s responsibility from their failure to appear at hearing.
- The determination of responsibility will be made based on the allowable information contained in the record and presented at the hearing. There is a presumption that the Respondent is not responsible for the alleged conduct until a determination of responsibility is made at the conclusion of the hearing.
- The Investigator for the case and/or University Police may be called as a witness by either Party and may provide witness testimony as allowed regarding their investigatory fact findings.
- The Parties and/or the Hearing Officer may request the attendance of witnesses. No witness may be compelled to provide testimony.
- The Hearing Officer shall exercise control over the proceedings to maintain decorum, to avoid redundancies, and to achieve the orderly completion of the hearing. The Hearing Officer may recess the hearing if they determine that the presence of additional information or witness testimony is needed to make a decision. The Hearing Officer may exclude any person, including a Party, who disrupts a hearing or fails to follow procedures.
- Hearings shall be recorded by the Hearing Officer. No other recordings or broadcasts shall be permitted. The recording will be maintained with the Respondent’s case file and will be available to the employee as part of their personnel file and to the Parties for consideration during any appeal.
- Witnesses shall be asked to affirm or swear that their testimony is truthful. Witnesses (faculty, staff or students) who intentionally provide false information may be subject to University disciplinary action.
- Parties and/or Witnesses will be provided the opportunity to provide additional or clarifying information pertaining to the investigative report at the hearing. The Witnesses should not restate information previously provided in the investigative report.
- Witnesses will be excluded from the hearing during the testimony of other witnesses. Witnesses may not discuss the testimony they provided with other witnesses.
- The University will make all directly related evidence available to the Parties at the hearing.
- Formal rules of evidence or civil procedure shall not apply in hearings.
- The Hearing Officer will consider all relevant evidence presented and will allow each Party’s Advisor to pose relevant questions to the Parties and witnesses. Before a witness or Party answers a question directed to them by an Advisor, the Hearing Officer must first determine if the question is relevant. The Hearing Officer will exclude any irrelevant information or testimony (including duplicative questions), and when excluded, the Hearing Officer will provide an explanation for the decision to exclude the information or question. The Hearing Officer reserves the right to provide additional reasons for the exclusion of information after the hearing concludes. The Hearing Officer will also supervise the proceedings to ensure that the Advisor adheres to the rules of decorum and is not abusive or intimidating.
- Relevant evidence and questions do not include the following categories, which are deemed “irrelevant” at all stages of the Complaint Resolution Process:
- Evidence and questions about the Complainant’s sexual predisposition or prior sexual behavior, unless they are offered to prove that someone other than the Respondent committed the alleged conduct or they concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent;
- Evidence and questions that constitute or seek disclosure of information protected under a legally-recognized privilege; and
- Any Party’s medical, psychological, and similar records unless the Party has given voluntary, written consent.
- If a witness (including a Party) is not present at the hearing or refuses to submit to cross examination at the hearing, any statement provided by the witness (or Party) as part of the investigation cannot be considered by the Hearing Officer.
- Parties and/or Witnesses must participate in the hearing face-to-face or via video conferencing technology. At the request of either Party, the live hearing (including cross-examination) may occur with the Parties located in separate rooms with technology enabling the Parties to see and hear each other.
- Allegations against multiple employees involved in the same incident may be consolidated and considered in a single hearing.
- The sequence of a Hearing shall be as follows:
- The Hearing Officer shall read statements regarding the expectations for the hearing, including expectations regarding truthfulness and confidentiality, and the allegations as listed in the notice which are to be considered at the hearing.
- The University shall present the information alleged in the Formal Complaint and evidence gathered through the investigation process. This may be done by presenting the Investigative Report and relevant evidence and/or through witnesses.
- The Hearing Officer shall allow the Parties to make a short, opening statement summarizing their cases.
- The Complainant shall present their case, including any witnesses. The Hearing Officer and Respondent’s Advisor may question the Complainant and witnesses following each of their respective testimonies.
- The Respondent shall present their case, including any witnesses. The Hearing Officer and Complainant’s Advisor may question the Respondent and witnesses following each of their respective testimonies.
- The Hearing Officer may limit or exclude questioning that is irrelevant. The Hearing Officer may also enforce the rules of decorum, requiring all Parties and Advisors to participate respectfully and non-abusively.
- The Witnesses, including the Parties, shall wait to be informed by the Hearing Officer whether the question is permitted in the hearing before responding.
- The Parties may make a closing statement. A closing statement is a short summary of the information previously presented and conclusions the speaker wishes the Hearing Officer to draw from the information.
- Following closing statements, the hearing will be considered closed.
DETERMINATION OF RESPONSIBILITY
24. The Hearing Officer’s determination of responsibility shall be made on the basis of the preponderance of the evidence, that is, whether the information presented has shown that it is “more likely than not” that the Respondent engaged in the alleged conduct and therefore violated the Title IX Sexual Harassment Policy.
25. The Hearing Officer’s written decision, including an explanation of the findings and reasoning to support the decision, whether any remedies will be provided to the Complainant, and any disciplinary action against the Respondent will be sent to the Parties through a means where delivery can be verified. The Parties’ University email address will be the official primary mode of communication. A copy of the decision will also be provided to Employee Relations and to the Title IX Coordinator.
26. The time limit for filing an appeal begins upon delivery of the written decision to the Parties, respectively.
27. If the Hearing Officer issues a determination of responsibility for a Respondent who is an SHRA employee:
- The Hearing Officer shall recommend a proposed sanction for consideration by the Respondent’s supervisor and University Employee Relations through the processes provided for in the SHRA Disciplinary Action Policy (DAP), if applicable. The written determination of responsibility and any referral from the Hearing Officer may become the official recommendation of the supervisor for any required Pre-Disciplinary Conference (i.e., for sanctions of disciplinary suspension without pay; demotion; or dismissal).
- Any Appeal from a Title IX determination regarding responsibility or from dismissal of a formal complaint based on an allegation that Title IX personnel had a conflict of interest or bias shall be resolved within the Title IX Complaint Resolution Process and shall not constitute a grievable issue under the SHRA Grievance Policy.
- Following the issuance of formal disciplinary action, an SHRA employee may file a grievance in accordance with the University of North Carolina SHRA Grievance Policy (SHRA Grievance Policy).
- In grievances involving disciplinary sanctions imposed based upon the Title IX Complaint Resolution Process, the SHRA Grievance Panel may receive as evidence the written record of the Title IX Complaint Resolution Process and written determination of responsibility. The review by the SHRA Grievance Panel shall be limited to the question of whether the discipline is supported by just cause.
28. If the Hearing Officer issues a determination of responsibility for a Respondent who is an EHRA non-faculty employee, the recommended sanction will be referred to the Respondent’s supervisor and Employee Relations for implementation. The conclusions of the Complaint Resolution Process are not grievable under Section 611 of The Code.
29. If the Hearing Officer issues a determination of responsibility for a Respondent who is a faculty member who is the beneficiary of institutional guarantees of academic tenure:
- The determination shall constitute misconduct under Section 603(1)(C) of The Code. Once the written decision in the Complaint Resolution Process becomes final (either as issued or following the completion of any Title IX Complaint Resolution Process appeal(s)), the Hearing Officer’s sanction shall be a referral to the Chief Academic Officer for appropriate disciplinary sanction, if any.
- In proceedings under Section 603 of The Code involving the imposition of serious sanction based upon the Complaint Resolution Process, the Title IX written decision may be included as evidence of the grounds for the sanction, however, the Title IX determination of responsibility is not subject to review.
30. If the Hearing Officer determines that the Respondent is not responsible for a violation of the Title IX Sexual Harassment Policy, the Hearing Officer shall then consider whether the conduct constitutes a violation of the Equal Opportunity, Non-Discrimination and Affirmative Action Policy (NCSU POL 04.25.05). In reaching this determination, the Hearing Officer shall consider all relevant evidence presented during the Hearing, including exhibits and testimony, as well as the Investigative Report and any accompanying exhibits. The Hearing Officer’s determination will be made in accordance with NCSU REG. 04.25.02, Section 9.2, with the Hearing Officer serving in the role of the OIED investigator; however, Section 9.2(b) shall not apply, because the Parties will have had an opportunity to review all relevant evidence, the investigative report, and pose questions during the Hearing. The Hearing Officer’s final report will be transmitted to the OIED, which will proceed in accordance with NCSU REG 04.25.02.
31. The Parties shall be notified in writing of their appeal rights when provided with the Hearing Officer’s written decision. Either Party may appeal from a Hearing Officer’s determination regarding responsibility and from a dismissal of a Formal Complaint (or any allegations therein) based on one or more of the following grounds:
a. Procedural irregularity that affected the outcome of the matter;
b. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
c. The Title IX Coordinator, investigator(s) or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent that affected the outcome of the matter.
32. Any appeal should be directed to the Title IX Coordinator, who will notify the other Party in writing when an appeal has been filed. An appeal must be received within ten (10) days from the date that the written decision is issued to the Parties through any delivery method where receipt can be verified. If the tenth (10th) calendar day falls on a Saturday, Sunday, or University holiday, the deadline for filing the appeal will be extended to the next University business day. If no timely appeal is filed, the Hearing Officer’s written decision will be final. An extension of time to file an appeal may be requested in writing within the ten-day limit, and it is within the discretion of the Title IX Coordinator to grant or deny such requests.
33. The opposing Party shall have ten (10) calendar days from receipt of the notification of appeal from the Title IX Coordinator to provide a written response to the appeal. Upon receipt of an appeal and any written response to the appeal, the Title IX Coordinator shall appoint an Appeal Officer to review the appeal. The Appeal Officer may be a University employee or external third party at the discretion of the Title IX Coordinator. The Title IX Coordinator will send a notice to both Parties identifying the Appeal Officer. Either Party must notify the Title IX Coordinator within five (5) days if they believe the Appeal Officer assigned to the case has a conflict of interest or bias such that the Appeal Officer could not conduct a fair review of the appeal. The Title IX Coordinator shall have the discretion to remove or re-appoint an Appeal Officer if deemed necessary to address a reported conflict of interest or bias.
34. The appeal must contain the following:
- A copy of the decision being appealed;
- A detailed written statement specifying the grounds for appeal, a list of alleged errors in the decision or procedure, an explanation for why those decisions are in error, and the complete factual basis for the appeal;
- A requested remedy; and
- The signature of the appellant and date the appeal is being submitted.
35. The Title IX Coordinator will provide the documents submitted on appeal to the Appeal Officer. Appeals will be decided on the record of the original proceedings. New hearings will not be conducted on appeal. However, the Appeal Officer may choose to ask the parties to submit additional information about their positions on appeal, beyond the information in the appeal notice. If the Hearing Officer is alleged to have violated these procedures, the Appeal Officer may ask the Hearing Officer to submit a written response to the appeal. Any written statement submitted must be drawn on information in the record and cannot include new information bearing on responsibility that was not presented at the hearing, except to the extent that new information pertains to the grounds for appeal, was not reasonably available prior to the hearing, and could affect the outcome of the matter. These written statements become part of the record.
36. Following their review, the Appeal Officer may:
- Affirm the findings imposed by the Hearing Officer;
- Remand the case to the Hearing Officer based on:
(i) Procedural errors that affected the outcome of the proceeding; or
(ii) New and significant material information that has become available and was not available previously to a person exercising reasonable diligence, which information could have affected the outcome of the proceeding.
- Remand the case to a new Hearing Officer if the Appeal Officer finds that the Hearing Officer had a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent that affected the outcome of the matter.
37. The Appeal Officer will review the appeal documentation and any other information required (i.e. investigative report, hearing transcript, new evidence identified, etc.) to render a decision on the appeal. The Appeal Officer will issue a written decision on the appeal and the rationale for the result within fifteen (15) days of receipt of all documentation required to decide the appeal, but that deadline may be extended for good cause. The decision on appeal will be provided simultaneously to both Parties.