Responding to Incidents Involving Allegations of Faculty or Staff Sexual Misconduct

The University will promptly respond to all complaints of Sexual Misconduct alleged against a University employee according to the University Sexual Misconduct Policy. Any individual reporting that they have been a victim of sexual violence will be informed of how to, and provided assistance in, making a criminal complaint with the appropriate law enforcement agency. Individuals who identify as vicitms/survivors and all members of the Indiana University community are also encouraged to visit the Stop Sexual Violence website at http://stopsexualviolence.iu.edu  for more information on reporting, campus resources and services available on their campus.All parties will have equal opportunities to present information, have advisors present, and pursue an appeal, if applicable. All procedures, excluding any appeal, should be completed within 60 days, absent any special circumstances.

Throughout this process, the University will have as a priority, the interests of all parties involved, in regard to fairness, dignity, privacy, and due process. Students reporting sexual misconduct against an employee will be provided interim and remedial measures as described in this policy, where appropriate and necessary.

For the purpose of these procedures, relevant officials with key responsibilities are:

Investigator - the Deputy Title IX Coordinator(s) for the respective campus, or an appropriate designee, will conduct fact-finding as the Investigator.

Decisional Official (DO) - will issue the decision determining responsibility and assigning appropriate sanctions, if applicable. The DO will be as follows:

  1. For complaints against staff employees, including temporary (hourly), the DO will be the appropriate Campus HR Director.
  2. For complaints against faculty and academic employees, the DO will be the Vice Provost/Vice Chancellor for Academic Affairs of the respective campus.
  3. For complaints against a Dean, a Vice Provost, or a Vice Chancellor, the DO will be the Provost/Chancellor of the respective campus.
  4. For complaints against a University Vice President, a Provost, a Chancellor, or equivalent, the DO will be the President.
  5. For complaints against the President, the DO will be the Board of Trustees.

Faculty Board of Review – constituted on each campus, in faculty cases may review action of DO.

Appellate Official – may review action of DO on each campus following appeal by either party. The Appellate Official will be as follows:

  1. For an appeal in a complaint against staff employees, including temporary (hourly), the Associate Vice President of University Human Resources.
  2. For an appeal in a complaint against faculty or academic employees, the Provost/Chancellor of the respective campus.
  3. For an appeal in a complaint against a Dean, a Vice Provost, or a Vice Chancellor, the President.
  4. For an appeal in a complaint against a Vice President, a Provost, a Chancellor, or equivalent, the Board of Trustees.

All relevant officials and any review board members will receive annual University training on issues related to sexual misconduct and be familiar with University policies and procedures. The University Title IX Coordinator shall be informed of each complaint and be available to all relevant officials and review board members for consultation during this process.

Complaint
Initial Assessment: Upon receipt of a complaint against faculty or staff, an Investigator will conduct an initial assessment to determine whether it falls within the scope of the Sexual Misconduct Policy, and whether it rises to the level of an allegation of sexual misconduct. The initial assessment will include informing complainants and respondents regarding the nature of allegations and explanation of this policy and procedures.

The process that follows shall apply if the Investigator determines that this threshold has been met. If a complaint raises allegations that are outside the scope of the Sexual Misconduct Policy, but may violate other University policy(ies), the Investigator will refer the complaint to the appropriate University office.

In the event the Investigator determines not to pursue an investigation under this Policy, that decision may be appealed by either party to the DO, requesting a review of the decision not to proceed in an investigation. Upon review, the DO may uphold that decision or order an Investigation to proceed.

Interim Action: If, upon the receipt of a complaint, the University Title IX Coordinator and/or the Deputy Title IX Coordinator(s) for the respective campus, or their designee, determines a need for immediate interim action, e.g. removal, reassignment, administrative leave, or suspension, they shall consult with the DO. The DO may administer such interim action at any point in this process pending final outcome.

Alternative Resolution Options: In appropriate cases, the University may pursue informal resolution with the consent of all parties at any point in the investigation process. Informal resolution options may include, but are not limited to, mediation, development action plans, and voluntary resolutions. Under informal resolution, the complainant will not be required to resolve the problem directly with the respondent, unless desired by the complainant. All parties must be notified of the right to end the alternative resolution process at any time, and begin the formal process. Mediation may not be used in cases involving any sexual violence or where the complaint is made against an employee with a position of authority over the complainant. The Investigator shall document the outcome of any alternative resolution and share with the University Title IX Coordinator and the DO.

Investigation
When an investigation is initiated, the Investigator will conduct fact-finding as to the allegations made against the respondent employee. The investigation may include, but is not limited to, interviews with the complainant, the respondent, and other witnesses identified as having information relevant to the allegations made, as well as the examination of written statements by the parties, relevant documents, and other relevant information. Information for the investigation may be provided by complainants, respondents, witnesses identified by any party, or the University. The Investigator shall ensure that the respondent is informed of all allegations raised and is provided the opportunity to respond. The University may consider information relating to prior complaints of misconduct known to the University. Evidence regarding a party’s past sexual behavior or activity is prohibited, except in connection to evidence of past sexual activity between the parties where the exclusion of such information would adversely affect the integrity or fairness of the finding. Previous consensual relationships between the parties will not in itself establish consent or preclude a finding of sexual misconduct.

All members of the University are required to cooperate fully with the investigative process. Failure to do so may result in disciplinary measures pursuant to applicable University policy and procedure.

Report of Investigation
The Investigator will create a report of the investigation setting forth:

  1. factual determination(s);
  2. recommendation as to whether the respondent is responsible for the sexual misconduct using a preponderance of the evidence standard (more likely than not); and
  3. recommendation as to appropriate sanctions, if any, as set forth below.
  4. The report will be forwarded to the DO.

Finding and Decision
Upon receiving the Investigator’s report, the DO may consult with the Investigator concerning his or her recommendations. If the DO wishes further consultation with the parties, the Investigator will facilitate consultations to ensure equal opportunities for the parties to meet with the DO.

The DO will issue one of the following findings, using a preponderance of the evidence standard:

  1. Finding of “No Violation” of the University’s Sexual Misconduct Policy:
  2. If there is a determination that the behavior alleged and investigated did not violate the Sexual Misconduct Policy, the parties will be so informed of the finding. The parties will receive a summary of the information considered during the investigation. In the event the investigation reveals that the employee may have violated a different University policy, the DO may address any such potential violation through other applicable University policies. Documentation regarding a finding of “No Violation” shall be maintained with the respective Deputy Title IX Coordinator’s office, and not in the employee’s personnel file.
  3. Finding of a “Violation” of the University’s Sexual Misconduct Policy:
  4. If there is a determination that the behavior alleged and investigated was in violation of the Sexual Misconduct Policy, the DO shall issue the finding and sanction(s) (based on the level of sanctions set forth below) and notify all parties. The parties will receive a summary of the information considered during the investigation.

Sanctions
Sanctions for a violation of the University’s Sexual Misconduct Policy include the following:

  1. Level One Sanctions include sanctions that do not directly modify job duties or actual salary, such as informal discussions, additional training, periodic review, letter to personnel file (other than to promotion and tenure dossier which is included in Level Two Sanctions below). Level One Sanctions shall not be appropriate in the event the respondent was found responsible for sexual assault or other sexual violence.
  2. Level Two Sanctions include sanctions that directly modify job duties, salary or job status, including withholding compensation, consideration in tenure or promotion decisions, suspension and termination.

When determining the appropriate sanctions, consideration shall be given to the nature and severity of the behavior and the existence of any prior incidents or violations.

Appeals

Appeals to Appellate Officer
Following a finding of “No Violation” any party may request an appeal directly to the Appellate Officer on the basis of:

  1. Significant procedural error that reasonably would have affected the outcome.
  2. Significant bias in the process.

Following a finding of “Violation” and Level One Sanction: any party may request an appeal directly to the Appellate Officer on the basis of:

  1. Significant procedural error that reasonably would have affected the outcome.
  2. Significant bias in the process.

Following a finding of “Violation” and Level Two Sanction: any party may request an appeal directly to the Appellate Officer on the basis of:

  1. Significant procedural error that reasonably would have affected the outcome.
  2. Significant bias in the process.
  3. The finding of responsibility is in error.
  4. The appropriateness of the sanctions.

All requests for appeal must be submitted in writing within 10 calendar days of receiving the DO’s decision. The request must set forth the basis for seeking an appeal, and include information to support such basis(es). If an appeal is requested, all concerned parties will be notified. The Appellate Officer shall first determine whether the basis of appeal has been met, and if so, shall review the findings, and any applicable sanctions, in making a decision. The Appellate Officer shall not revisit findings of fact as determined in the investigation.

The Appellate Officer shall make a final determination within 10 calendar days of the receipt of any appeal, indicating one of the following:

  1. Affirming the DO’s original finding(s).
  2. Setting aside the DO’s original finding(s) and imposing a new finding and/or sanctions.
  3. Setting aside the DO’s original finding(s) and ordering a new investigation (this option will generally be reserved for cases where significant procedural error has been identified to have affected the outcome).

To the extent possible, the parties will be notified simultaneously in writing of the final decision following an appeal.

Request for Review to Faculty Board of Review
In cases involving a faculty member as a respondent, any party may request review by a Faculty Board of Review prior to an appeal to the Provost or Chancellor according to the provisions below. This request must be made within 10 calendar days of receiving the decision from the DO.

Level One Sanctions are only eligible for review by the Faculty Board of Review if the requesting party can show significant bias in the process or significant procedural error that reasonably would have affected the outcome. For an appeal of “No Violation” or Level One Sanctions, the Faculty Board of Review may decline a request for review at which point, the requesting party may appeal to the Provost or Chancellor. For Level Two Sanctions, the grounds for review by the Faculty Board of Review may also include the finding of responsibility and the appropriateness of the sanctions. The Board may not conduct new fact-finding, and may not revisit the factual determination. The Board will only receive the Report of the Investigation, but may consult with the DO and Title IX Coordinator about further questions.

Throughout the Faculty Board of Review process, hearing members and participants shall ensure that the privacy of the matter and the parties is upheld. Hearings shall be closed to the public to protect the privacy of all parties. In addition to faculty members serving on the Board of Review hearing panel, others present during a hearing may include the party requesting review, the Investigator, the DO, the University Title IX Coordinator, and any other University official necessary to the proceedings. No witnesses will be allowed in the Faculty Board of Review. If the party requesting review is the faculty employee, the other party may choose to participate in the Faculty Board of Review by either being present and/or by submitting a written statement. All parties may have an advisor present, but the advisor will not be allowed to participate or speak during the Review, unless for the purpose of reading the party’s written statement, if provided and requested.

A Faculty Board of Review must be concluded promptly, and within no more than 60 days of the request. After review, the Faculty Board may support the decision of the DO or make an alternative recommendation regarding the finding or sanctions to the Provost or Chancellor, (or relevant official). The Provost or Chancellor (or relevant official) will make a final determination within 10 days of receiving the Faculty Board of Review recommendation.

Note: Adversary hearings, including confrontation, cross-examination by the parties and active advocacy by attorneys or other advocates, are neither appropriate nor permitted during the investigation or appeal phase of these processes.

Further information and definitions of key terms can be found in the
University Sexual Misconduct Policy.