INITIATION OF COMPLAINT
Filing of a formal complaint
Any person may report alleged sex discrimination to the Title IX Coordinator or to a responsible employee. Once HCN has actual knowledge of alleged sexual harassment, the Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures; consider the complainant’s wishes with respect to supportive measures; inform the complainant of the availability of supportive measures with or without the filing of a formal complaint; and explain the process for filing a formal complaint.
Only a complainant may file a formal complaint alleging sexual harassment against a respondent and requesting that HCN investigate the allegation. In some circumstances and in the absence of the complainant filing the formal complaint, the Title IX Coordinator may sign a formal complaint if it otherwise would be deliberately indifferent for HCN not to proceed with an investigation.
Complainants have the right to file concurrently a criminal complaint with appropriate law enforcement agencies and a formal complaint with HCN. Any formal complaint filed with HCN shall specify to the greatest extent possible the alleged Title IX Offense, the name of the individual(s) who engaged in the alleged Title IX Offense, if known, and such other information as may assist HCN in promptly investigating the alleged Title IX Offense. The complainant may request confidential treatment and the Title IX Coordinator shall evaluate all such requests as set forth in Section 5 of the Policy.
Notice of the allegations
Upon receipt or initiation of a formal complaint, HCN will provide the following written notice to the parties who are known: notice of the Sexual Harassment Grievance Procedures; notice of the allegations of sexual harassment potentially constituting sexual harassment, including sufficient details known at the time (e.g., identities of involved parties, date and location of incident) and with sufficient time to prepare a response before any initial interview. The written notice will also include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
The written notice additionally will inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney and may inspect and review evidence. In accordance with HCN’s codes related to honor and ethical conduct, it is a violation to engage in, condone, or assist others in any act of dishonesty. Additionally, it is a violation of the Code of Business Conduct and Ethics to use any reporting procedures in bad faith or in a false or frivolous manner. Any violation of HCN’s codes may result in disciplinary action, up to and including expulsion (for students) and termination (for faculty and staff).
If in the course of investigation HCN decides to investigate allegations about the complainant or respondent that are not included in the notice requirements above, then HCN will provide notice of the additional allegations to the parties whose identities are known. HCN may consolidate formal complaints of alleged sexual harassment where the allegations arise out of the same facts or circumstances.
Dismissal of a formal complaint
HCN must investigate the allegations in a formal complaint. If the conduct alleged in a formal complaint would not constitute sexual harassment even if proven; did not occur in HCN’s education program or activity; or did not occur against a person in the United States, then HCN must dismiss the formal complaint with regard to that conduct for purposes of the Sexual Harassment Grievance Procedures. However, such a dismissal does not preclude action under HCN’s Title IX Generally Applicable Grievance Procedures, HCN’s student conduct policies, HCN’s anti-discrimination and harassment policy, or any other HCN conduct-related policy.
HCN may dismiss a formal complaint or any allegations therein if at any time during the investigation or hearing: a 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 HCN; or specific circumstances prevent HCN from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Where HCN has determined to dismiss a formal complaint, it will promptly notify the parties.
INFORMAL RESOLUTION PROCESS
Mediation is never appropriate in cases of alleged sexual assault and shall not be utilized by HCN in such cases. However, in other circumstances, the Title IX Coordinator may informally discuss possible remedies and sanctions with the complainant and the respondent separately to ascertain if a satisfactory informal resolution can be reached, only after a formal complaint is filed and the parties receive a full disclosure of the allegations and options for formal resolution. HCN shall refrain from asking a complainant to resolve problems directly with the respondent.
HCN may facilitate an informal resolution process that does not involve a full investigation and adjudication after providing written notice to the parties that discloses: the allegations; the requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations (provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the formal resolution process and resume the grievance process with respect to the formal complaint); and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
Parties must provide voluntary, written consent to participate in the informal resolution process and at any time may end the informal resolution process and begin the formal investigative process described in Section 4. If an informal resolution can be reached, the remedies and sanctions to which the parties agree shall be imposed. If resolution cannot be reached, the Title IX Coordinator shall proceed with the investigative process described in Section 4.
HCN will not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
The Title IX Coordinator or designee (Investigator) shall promptly investigate the alleged sexual harassment in accordance with Section 6 of the Policy and additional procedures outlined herein. It is HCN’s goal to provide for an adequate, reliable, and impartial investigation and resolution of each formal complaint.
Retaliation against the complainant, alleged perpetrator, witnesses, or any other participant involved in a Title IX investigation is prohibited. In the event HCN is unable to conduct a full investigation, such as when the alleged perpetrator is a visitor to HCN property or is not otherwise affiliated with HCN, HCN shall take steps to provide remedies for the complainant and the broader student and employee populations, as HCN may deem appropriate.
Investigation and investigative report
When investigating a formal complaint and throughout the grievance process, HCN will:
- Assume the burden of proof and the burden of gathering evidence. HCN must obtain voluntary, written consent of a party to access records made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party.
- Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
- Provide an equal opportunity for the parties to present witnesses and evidence, and to inspect and review any evidence directly related to the allegations raised in a formal complaint.
- Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
- Provide the same opportunities to the parties to have others present during meetings or proceedings (including the opportunity to be accompanied by an advisor of each party’s choice) and provide details and advance notice of any meetings or proceedings. HCN may establish restrictions regarding the extent to which an advisor may participate in grievance proceedings and will apply such restrictions equally to all parties.
The Investigator will objectively evaluate all relevant evidence and create an investigative report that fairly summarizes relevant evidence. Prior to completion of the investigative report, HCN will send each party and the party's advisor, if any, the evidence subject to inspection and review and HCN will provide the parties at least 10 days to submit a written response, which the Investigator will consider prior to completion of the investigative report. HCN also will provide a copy of the investigative report to each party and the party’s advisor, if any, at least 10 days prior to a hearing, for their review and written response.
HCN is required under Title IX to have a live hearing as part of its Sexual Harassment Grievance Procedures. The hearing is conducted by an individual designated as the decision-maker (Decision-maker); the Decision-maker cannot be the same individual as the Title IX Coordinator, nor can it be the same individual as the Investigator.
During the hearing, HCN will permit each party’s advisor (not the party himself or herself) to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility (Cross-examination). Only relevant cross-examination and other questions may be asked of a party or witness, and the Decision-maker will determine the relevance of such questions (and explain any decision to exclude a question as not relevant). If a party does not have an advisor present at the live hearing, HCN will provide an advisor of HCN’s choosing to the party, without fee or charge to the party, to conduct cross-examination on behalf of that party. The advisor is not required to be an attorney.
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. 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. Credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
At the request of either party, HCN will conduct the hearing in physically separate rooms with appropriate technology to simultaneously see and hear the proceedings. For all hearings, HCN will create an audio or audiovisual recording or transcript and make it available to the parties for inspection and review.
The Decision-maker will apply the preponderance of the evidence standard to determine whether the alleged sexual harassment occurred, and issue a written determination regarding responsibility that includes the following:
- Identification of the allegations potentially constituting sexual harassment
- A description of the procedural steps taken, from formal complaint to determination (including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held)
- Findings of fact supporting the determination
- Conclusions regarding the application of the relevant HCN code of conduct policy to the facts
A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions HCN imposes on the respondent, and whether remedies designed to restore or preserve equal access to HCN’s education program or activity will be provided by HCN to the complainant
HCN’s procedures and permissible bases for the complainant and respondent to appeal (See Section 6 below)
Either party may appeal the dismissal of a formal complaint (or any allegations therein) or a written determination on the following bases:
- Procedural irregularity that affected the outcome of the matter
- 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
- The Title IX Coordinator, Investigator, or Decision-maker had a conflict or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter
Student appeals may be submitted via written statement of appeal to the Senior Vice President, Academics overseeing the student’s program, and must be received by the appropriate Senior Vice President, Academics within seven (7) days following the date on which the parties received notice of the dismissal or determination. Employee appeals may be submitted via written statement of appeal to the Director, Human Resources, and must be received by the Director, Human Resources within seven (7) days following the date on which the parties received notice of the dismissal or determination. The Senior Vice President, Academics or Director, Human Resources shall notify the other party in writing when an appeal is filed, and give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome. The Senior Vice President, Academics or Director, Human Resources shall have twenty (20) days from receipt of the appeal request to grant or deny the appeal by issuing a written determination, or request additional information from the appealing party and the Title IX Coordinator that the Senior Vice President, Academics or Director, Human Resources deems necessary to decide the appeal request. Regardless of which party files the appeal, the Senior Vice President, Academics or Director, Human Resources may reverse the dismissal or determination only if the Senior Vice President, Academics or Director, Human Resources finds that the decision was arbitrary or capricious or was not otherwise supported by the preponderance of the evidence. If the appeal is granted, the Senior Vice President, Academics or Director, Human Resources shall make such instructions to the Title IX Coordinator as may be appropriate.
The decision of the Senior Vice President, Academics or Director, Human Resourcesdecision on the appeal shall constitute the final action by HCN, and HCN shall send written notice of the Senior Vice President, Academics’ or Director, Human Resources’s decision and its finality via email concurrently to the parties. If neither party appeals a dismissal or determination within the seven (7) day appeal window, HCN shall send notice via email concurrently to the parties that the time for an appeal has expired and that the dismissal or determination is deemed final.
Individuals involved in the appeal process cannot be the same individuals as the Title IX Coordinator, Investigator, or Decision-maker for the matter being appealed.
IMPOSITION OF REMEDIES, ACCOMODATIONS AND SANCTIONS
After a determination has become final, HCN shall take steps necessary to implement it, including the remedies, accommodations, and sanctions. In the event supportive measures are offered to the complainant or respondent at any point prior to HCN’s final determination, the Title IX Coordinator may implement such measures, a non-exhaustive list of which are set forth in Exhibit E of the Policy.
Prior to reaching a determination, HCN may remove a respondent from HCN’s education program or activity on an emergency basis, provided that HCN has undertaken an individualized safety and risk analysis; determined that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal; and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. HCN may place a non-student employee respondent on administrative leave during the pendency of the Sexual Harassment Grievance Procedures.
Exhibit E of the Policy also sets forth a non-exhaustive list of potential remedies for complainants that HCN may impose. Those remedies include but are not limited to the reprimand, suspension, or expulsion of a student respondent, the reprimand, suspension, or termination of an employee respondent, and complainant’s options to avoid contact with the alleged respondent and to change academic, professional, and extracurricular activities as well as complainant’s living, transportation, dining, and working situation, as appropriate. Examples of counseling, advocacy, and other support services and assistance options also are provided in Exhibit D of the Policy.
Implementation of these Sexual Harassment Grievance Procedures may result in additional remedies for the HCN community, including greater emphasis on student awareness, educational, and professional development courses for students, faculty, and staff, and other steps designed to address the specific issues raised by a Title IX complaint received by HCN.
HCN requires that the Title IX Coordinator, Investigator, Decision-maker, or any person who facilitates an informal resolution process receive training on the definition of sexual harassment; the scope of HCN’s education program or activity; how to conduct an investigation and grievance process; and how to serve impartially. Such individuals also must receive training on issues of relevance and technology. Training materials promote impartial investigations and adjudications of formal complaints of sexual harassment and do not rely on sex stereotypes. HCN’s training materials are available at: https://www.hondros.edu/titleix/training.html.