02.2.22 - Title IX Misconduct and Grievance Procedures

Human Resources: Academic Freedom, Affirmative Action & Equal Employment

Last Updated: 08/12/2020

Original policy date: 08/12/2020

Applies to: Faculty, Staff, Residents & Clinical Postdoctoral Fellows, Postdoctoral Fellows, Students

 

Policy/Procedure Status, Date of Last Review

Current, as of August 12, 2020

Next Scheduled Review Date

July 1, 2022

  

 

I. Rationale
This Procedure has been established by the Office of Title IX & Disability Services in consultation with the Office of the General Counsel for the purpose of implementing the Title IX Misconduct and Grievance Policy (02.2.20).
 
II. Stakeholders Affected by this Policy
This Procedure applies to all BCM Community Members. This Procedure also applies to any allegations of Title IX Misconduct brought by or against BCM Community Members under the BCM Title IX Misconduct Policy (02.2.20), which may include a third party unaffiliated with BCM (e.g., patients, guests, invitees) as a Complainant or Respondent. This Procedure does not apply to allegations of sexual misconduct that may occur in any location that is outside the borders of the United States of America, or to alleged incidents that occur outside the scope of an Education Program or Activity sponsored by BCM, even if a BCM Community Member is involved as a Complainant or Respondent. Such allegations shall be governed by the Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26), if applicable, or other applicable policies of the College (e.g., 02.2.25). 
 
III. Definitions
(a)   This procedure adopts all of the following applicable definitions, as established in Section III of the Title IX Misconduct Policy (02.2.20):
·         Advisor,
·         BCM Community Members,
·         Complainant,
·         Consent,
·         Dating Violence,
·         Domestic Violence,
·         Education Program or Activity,
·         Formal Complaint,
·         Title IX Misconduct,
·         Reporter,
·         Respondent,
·         Retaliation,
·         Sexual Assault,
·         Sexual Harassment, and
·         Stalking.
 
Consult the corresponding policy for the most up-to-date list of defined terms.
 
IV. Policy
Refer to Section IV of the Title IX Misconduct Policy (02.2.20).
 
V. Responsibilities
Refer to Section V of the Title IX Misconduct Policy (02.2.20).
 
VI. Procedures for Implementation and Review
A.    Standard of Proof. All investigations and adjudications conducted pursuant to this Procedure will apply the “preponderance of the evidence” standard (i.e. a fact is more likely than not to be true), which requires that the Evidence support a finding of responsibility be more convincing than the information in opposition to it.
 
B.    Presumption. Every investigation includes a presumption that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
 
C.    Initial Report. After receiving a report of alleged Title IX Misconduct, the Title IX Coordinator will promptly contact the Complainant (if identifiable) to discuss the availability of Supportive Measures. The Title IX Coordinator will consider the Complainant’s wishes with respect to Supportive Measures and explain to the Complainant the process for filing a Formal Complaint, as well as the grievance and adjudication process set out in this Procedure.
 
D.    Formal Complaint. A Formal Complaint is required to initiate an Investigation of alleged Title IX Misconduct. At the time of filing a Formal Complaint, the Complainant must be participating in or attempting to participate in an Education Program or Activity at BCM.
1.     The Formal Complaint may be either signed by the Title IX Coordinator or filed by the Complainant. The Complainant’s wishes with respect to whether or not to file a Formal Complaint will be respected, unless the Title IX Coordinator determines that signing a Formal Complaint to initiate an investigation over the wishes of the Complainant is not clearly unreasonable in light of the known circumstances.
2.     The Title IX Coordinator’s decision to sign a Formal Complaint is made on behalf of the College, not in support of the Complainant or in opposition to the Respondent, or as an indication of whether the allegations are credible, have merit, or whether there is evidence sufficient to determine responsibility. In determining whether to sign a Formal Complaint, the Title IX Coordinator shall consider: (1) the seriousness of the alleged incident; (2) whether the institution has received other reports of sexual harassment, sexual assault, dating violence, or stalking committed by the alleged perpetrator or perpetrators; (3) whether the alleged incident poses a risk of harm to others; and (4) any other factors BCM determines relevant.
3.     The Investigation will be assigned to an Investigator in the Title IX Office.
 
E.    Notice of Investigation. Upon BCM’s receipt of a Formal Complaint, Complainant and Respondent will receive simultaneous written notice of the initiation of an investigation, which includes the identities of the parties involved (if known), a description of the alleged Title IX Misconduct, date and location of the alleged incident(s) (if known), the Policy provisions alleged to have been violated, and information about the grievance process set forth herein. The notice must inform parties of the right to have an advisor of their choice, the right to inspect and review evidence, and that knowingly making false statements or submitting false information during the grievance process may be subject to additional disciplinary action up to and including dismissal or separation from the College. If additional allegations are added to the scope of the investigation, BCM will provide supplemental written notice to the parties. In addition, BCM will provide written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate, which in no case will be less than three business days.
 
F.    Mandatory and Optional Dismissal:
1.     If the conduct alleged in the Formal Complaint would not constitute Title IX Misconduct even if proved, did not occur in BCM’s Education Program or Activity, or did not occur against a person in the United States, then BCM must dismiss the Formal Complaint with regard to that conduct for purposes of Title IX Misconduct under this Procedure, but such a dismissal does not preclude action under another provision of BCM’s policies or code of conduct.
2.     BCM may dismiss a Formal Complaint or any allegations therein, if at any time during the investigation or hearing: the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; the Respondent is no longer enrolled or employed by BCM; or specific circumstances prevent BCM from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
3.     Upon a dismissal required or permitted under this subsection, BCM must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. The parties will be provided an opportunity to appeal any such dismissal pursuant to the appeal procedures described below.
 
G.    Consolidation: BCM may consolidate Formal Complaints against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Title IX Misconduct arise out of the same facts or circumstances. Where a grievance process involves more than one Complainant or more than one Respondent, references in this Procedure to the singular “party,” “Complainant,” or “Respondent” include the plural, as applicable.
 
H.    Investigation. BCM will carry the burden of gathering evidence to allow the Decision-Maker to make a determination regarding responsibility. During the Investigation, both parties will have the opportunity to identify witnesses, including fact and expert witnesses, and submit evidence relevant to the alleged incident. BCM will use its best efforts to investigate all reports of Title IX Misconduct, but unavailability of witnesses or any refusal by the Complainant, Respondent, or Reporter to provide relevant information may impede or undermine BCM’s ability to produce a complete and thorough investigation. The investigation shall be an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
1.     Advisors. Complainant and Respondent may, but are not required to, have an Advisor of their choosing present throughout the Investigation and during any meetings related to the Investigation and/or adjudication of a report of Title IX Misconduct. During the Investigation, Advisors may not ask questions or participate directly in the Investigation.
2.     Resolution of Investigation. Generally, BCM will strive to complete investigations within sixty (60) days of a report or complaint of Title IX Misconduct to the College. Delays to the investigation for good cause and the reason for the action will be communicated in writing to both Complainant and Respondent. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; the need for language assistance or accommodation of disabilities; or the overall complexity of the matter in light of the nature of the allegations, number of witnesses, and volume of evidence.
3.     Evidence. BCM will make available to the parties, and their Advisors, Evidence directly related to the allegations in the Formal Complaint with at least ten (10) days for the parties to inspect, review, and submit a written response, which the Investigator will consider prior to completion of the investigation report. Evidence may be redacted as necessary to comply with applicable state or federal confidentiality laws (e.g., HIPAA, FERPA). Relevant Evidence may include statements made by the parties or other witnesses, written or electronic communications pertaining to the incident, social media posts, physical or other Evidence.
4.     Privilege. BCM cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless BCM obtains that party’s voluntary, written consent to do so.
 
I.      Investigation Report. Once the investigation is complete, the Investigator will prepare a written report of the investigation. The investigation report will include a statement of the allegation(s), the persons involved, a summary of the Evidence reviewed, factual findings with respect to each allegation of Title IX Misconduct, and a determination by the Investigator(s) as to whether the Policy has been violated. The Title IX Coordinator will review and then accept or reject the investigation report. Rejected investigation reports may result in the initial Formal Compliant re-entering the investigation process, although an alternate trained investigator will complete the second investigation. Accepted investigation reports and the corresponding evidence are used in Live Hearings, which may lead to appropriate sanctions or remedies, if warranted. For any accepted or rejected investigation report, the Title IX Coordinator may offer the Complainant and Respondent an alternate resolution process to the Live Hearing, wherein the parties participate in an unofficial mediation process with the Title IX Coordinator acting as mediator. Both parties must agree to this alternate process, and, in doing so, the parties waive their right to a Live Hearing. BCM will send the investigative report to each party and each party’s advisor for the parties’ review and written response, and the parties will each have ten days to elect either the alternate resolution process or request a Live Hearing.
 
J.     Adjudication.
1.     Live Hearing Procedure
a.     A Live Hearing may be conducted with all parties physically present in the same geographic location, or, at BCM’s discretion, any or all parties, witnesses, and other participants may appear at the Live Hearing virtually. At the request of either party, BMC must provide for the Live Hearing to occur with the parties located in separate rooms with technology enabling the Hearing Office and Decision-Maker and parties to simultaneously see and hear the party or the witness answering questions.
b.     BCM will make all evidence subject to the parties’ inspection and review available at the Live Hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
c.     At the Live Hearing, the Hearing Officer must permit each party’s Advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. Only relevant cross-examination and other questions may be asked of a party or witness, and questions may be asked only by a party’s Advisor or the Hearing Officer. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the Hearing Officer must first determine whether the question is relevant and explain to the party’s Advisor any decision to exclude a question as not relevant.
d.     If a party does not have an Advisor present at the Live Hearing, BCM must provide, without fee or charge to that party, an Advisor of BCM’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
e.     Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
f.      If a party or witness does not submit to cross-examination at the Live Hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the Live Hearing or refusal to answer cross-examination or other questions.
g.     BCM will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.
2.     Written Determination. The Decision-Maker will apply the preponderance of the evidence standard and issue a written determination regarding responsibility, which will be provided simultaneously to Complainant and Respondent. The written determination must include: (i) identification of the allegations potentially constituting Title IX Misconduct; (ii) a description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; (iii) findings of fact supporting the determination; (iv) conclusions regarding the application of BCM’s code of conduct to the facts; (v) a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions imposed on the Respondent, and whether remedies designed to restore or preserve equal access to BCM’s Education Program or Activity will be provided to the Complainant; and (vi) BCM’s procedures and permissible bases for the complainant and respondent to appeal and a clear deadline for requesting an appeal (e.g., date, time).
 
K.    Response to Adjudication and Appeals. Complainant and Respondent each have three (3) days from the date of receipt of the written determination to decide whether to accept its stated findings, sanctions, and remedies, or to request an appeal. However, the Decision-Maker has discretion to modify the response period on a case-by-case basis, taking into account all relevant facts. Complainant and Respondent must state their position, in writing, to the Decision-Maker.
1.     If Complainant and Respondent both choose to accept, then the findings and imposed sanctions and/or remedies will be implemented immediately.
2.     If either Complainant or Respondent chooses not to accept, then the dissenting party may request an appeal according to the procedures described in this Procedure.
3.     All requests for appeal must be submitted directly to the Decision-Maker prior to the deadline stated in the written determination, or the appeal will be denied.
 
L.     Decorum in Proceedings. Anyone participating in any proceeding arising out of an alleged violation of this Procedure is expected to exhibit civility and decorum commensurate with the serious subject matter, and BCM has the authority and discretion to remove any participant who fails to adhere to this standard of conduct.
 
M.   Appeal of Adjudications.
1.     Procedure. There is one centralized appeal procedure for all stakeholders contesting a written determination or dismissal. All written determinations or dismissals, including any sanctions or remedies imposed due to violations of this Procedure (i.e., findings of responsibility for engaging in Title IX Misconduct), may be appealed using this procedure, which supersedes procedures for appeal described in other BCM policies with respect to grievances and adverse actions arising out of Title IX Misconduct. Appeal procedures described in the following policies may not be used to contest remedies, sanctions, or findings of responsibility imposed by the Decision-Maker: 02.5.25 - Faculty Grievance Procedures, 02.5.26 - Staff Grievance Procedure, 27.4.12 – GME Mistreatment and Grievances Policy, 23.1.08 – Student Appeals and Grievances Policy, and 27.6.2 – [GME] Appeal of Adverse Actions Policy.
2.     Scope of Appeal. Appeals are intended to afford Complainant and Respondent the opportunity to ensure that procedures described in this Procedure are performed consistently and documented correctly. Appeals are not intended for use as a substitute adjudication process, and therefore Complainant and Respondent may not pursue appeals based on mere disagreement with adjudication findings or sanctions. Valid grounds for appeal are described below.
3.     Requests for Appeal. Complainant and/or Respondent may request an appeal in writing to the Title IX Coordinator within three (3) days of the date they receive written determination or dismissal. Requests can be submitted online or via email, interoffice mail, or postal service. A request for appeal must be based on at least one of the following grounds, or the request for appeal will be denied:
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. A summary of this new evidence and its potential impact must be included in the appeal submission;
c.     The Title IX Coordinator, Investigator(s), Hearing Officer, or Decision-Maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter; or
d.     The sanctions imposed are disproportionate given both the severity of the Title IX Misconduct proven and a consideration of previous Respondent conduct (e.g., documented in personnel file or academic record).
4.     Appeal Procedure. Except where newly discovered evidence is the basis for the appeal, appeals are limited to a review of the Evidence and written documentation created and acquired during the investigation and Live Hearing (e.g., investigation report, written determination, and related Evidence) and documentation supporting the grounds for appeal. Appeals are not a full re-investigation of the allegation (i.e., de novo).
a.     The non-appealing party will receive written notice that a request for appeal has been approved. The notice must include the grounds for appeal, a copy of the request, and a clear deadline for submitting a written response. The non-appealing party will have three (3) days from the date of notice to submit a written response to the Appeal Officer.
b.     The Appeal Officer will have seven (7) days to render a decision after receiving appeal documents which may include, but are not limited to, the Formal Complaint, Investigation Report, written determination from Decision-maker, related Evidence, request for appeal, and non-appealing party’s response.
c.     The Appeal Officer has the ability to:
1)    Determine that none of the grounds for appeal have been plausibly asserted and deny the appeal;
2)    Affirm the findings, sanctions, and/or remedies imposed during adjudication;
3)    Modify the sanctions and/or remedies imposed during adjudication;
4)    Remand the case to the Title IX Coordinator and/or Decision-Maker with corrective instructions to address the procedural deviations, which could include a new investigation and/or a new hearing;
5)    In the event of new evidence, accept and affirm findings, sanctions and/or remedies;
6)    In the event of new evidence, modify finding(s) based on the standard of proof and remand to the Decision-Maker for new sanctions.
5.     Notice of Appeal Decision. Complainants and Respondents will receive simultaneous written notice of the decision of the Appeal Officer which will take effect immediately. 
 
N.    Finality. The determination regarding responsibility becomes final either on the date that BCM provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
 
O.    Sanctions for Violations of this Procedure.
1.     Respondents found to have engaged in Sexual Assault will be removed from the BCM community, i.e., employees will be terminated and students and trainees will be dismissed.
2.     Respondents who are found to have engaged in other Title IX Misconduct may face one or more of the following sanctions, depending on the severity of the reported incident and consideration of any previous policy violations:
a.     Mandatory educational programs (e.g., sexual harassment education seminar);
b.     Mandatory training programs (e.g., sensitivity training);
c.     Issuance of a No Contact Order;
d.     School and/or program-specific disciplinary action, such as:
1)    Formal Warnings,
2)    Professionalism citation,
3)    Adverse Actions, e.g., probation, suspension, non-reappointment, failure to promote, dismissal;
e.     Administrative leave of absence;
f.      Restriction(s) on or removal from a work, academic, or extracurricular activity, duty, or environment;
g.     Employment-specific disciplinary action, such as:
1)    Verbal or written warning,
2)    Probation, and
3)    Termination of employment.
 
P.    Recordkeeping. The College shall maintain records of each investigation under this Procedure. Any record created to investigate an allegation, regardless of later dismissal or other resolution of the allegation, will be maintained for a minimum of seven years, and maintained in accordance with BCM’s Record Retention Policy (08.4.05).
 
Q.    Procedure Review and Update. This Procedure shall be reviewed and revised as necessary jointly by the Office of General Counsel and the Title IX Coordinator, and in consultation with the Office of the President.
 
VII. Stakeholder Compliance
N/A
 
VIII. Tools
N/A
   
 
IX. Related Procedures
N/A
 
 
X. Applicable Laws, Regulations & Standards
A.    Federal and State Laws:
·         20 U.S.C. § 1681 et seq (Title IX of the Education Amendments of 1972);  
·         34 U.S.C. §§12291 – 12512 (Violence Against Women Reauthorization Act of 2019);
·         20 U.S.C. § 1092 (Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act); See also 20 U.S.C. § 1092(f) (Campus Sexual Violence Elimination Act);
·         20 U.S.C. § 1232g (Family Educational Rights and Privacy Act);
 
B.    Regulations:
·         34 C.F.R. Part 106, as amended (Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance)
·         34 C.F.R. Part 668; see § 668.46 (Institutional Security Policies and Crime Statistics); see also Appendix A to Subpart D of Part 668 (Crime Definitions in Accordance with the FBI’s UCR Program).
·         34 C.F.R. § 99 (FERPA regulations);