The procedures set forth in this Section XI apply to all reports of Prohibited Conduct, including reports of unlawful harassment, discrimination and Sex-Based Misconduct, except those which meet the parameters of a Formal Title IX Complaint of Sexual Harassment and the Formal Title IX Sexual Harassment Complaint has not otherwise been dismissed.
- Initial Review of the Complaint; Supportive Measures.
The Responsible Administrator shall conduct an initial review of the Complaint to determine whether an investigation is required and whether Supportive Measures are appropriate. An investigation is required when there is a dispute of fact which impacts the determination of whether conduct violating this Policy has occurred or it is otherwise in the best interest of the campus community to do so. Supportive Measures may include (but are not limited to): separating the parties; requiring the parties to abstain from communication with each other; modification to campus housing or work assignments; removal from on-campus housing; campus security escorts; making alternative working or academic arrangements; assistance with reporting allegations of criminal misconduct to police; and options for seeking mental health counseling or other support during the processing of a Complaint. In instances of allegations of Sex-Based Misconduct where an investigation is not conducted, the Title IX Coordinator shall provide to the alleged victim information regarding Supportive Measures, on-campus and off-campus resources and supportive services, the importance of preserving evidence and identification/location of witnesses, and the availability of assistance to file a report with law enforcement and contact information to do so.
- Assignment of Neutral Investigator; Notice of Complaint Procedures.
If an investigation is required, then the Responsible Administrator shall either directly investigate the matter or may assign a qualified neutral investigator to investigate the alleged misconduct (“Investigator”). In some cases, an investigative team may be utilized. The Responsible Administrator shall have broad discretion in selection of a neutral investigator, provided that the assigned Investigator has both the skills and resources necessary to conduct a complete investigation. The Investigator may be a University employee or a third- party investigator. All Investigators will carry out their roles in an impartial manner. Before the investigation begins, the Responsible Administrator will provide the Complainant and the Respondent with a Notice of Complaint & Investigation Procedures (“Notice of Complaint Procedures”) that, generally, includes the following information:
- The general nature of the alleged violations;
- A summary of the grievance process, including a copy of the relevant portions of this Policy (including in matters of Sex-Based Misconduct information regarding the importance of preserving evidence and the identification and location of witnesses, and that such evidence may assist in proving a criminal offense or in obtaining a protection order);
- The purpose of the investigation and a statement that the investigation is when all known and/or available evidence or information must be introduced;
- A statement that knowingly making false statements or knowingly submitting false information to the University as part of the grievance process is a violation of this Policy and the codes of conduct applicable to employees and the Student Values and Behavioral Standards policy, and may subject the person doing so to corrective measures, up to and including expulsion from the University’s academic program and/or termination from employment;
- The identity and contact information of the Investigator;
- A statement that the findings of fact will be based on a Preponderance of Evidence standard;
- A statement warning against interference with the integrity of the investigation, including, but not limited to, discussions with witnesses which may be perceived as threatening or coercive;
- Any Supportive Measures that have been imposed (including, in matters of Sex-Based Misconduct, information regarding the availability of both on-campus and off-campus resources and other supportive services);
- The option for a Support Person;
- An admonition against Retaliation;
- A statement that any new allegations that arise during the course of the investigation that could subject either party to new or additional sanctions shall be subject to the same notice requirements; and
- A statement that advises student parties of their right to consult with an attorney, at their own expense, at any stage of the process if they wish to do so and that an attorney may serve as a support person or an advisor.
- Investigation Timeline and Process; Standard of Proof.
Generally, the investigation shall be complete within ninety (90) business days from the issuance of the Notice of Complaint. This deadline and all deadlines contained in this Policy may be extended by the University for good cause. The University shall not unreasonably deny a student party’s request for an extension of a deadline related to a complaint during periods of examination or school closures. The Complainant and Respondent will be notified in writing of any such extensions, the reasons for the extension and the projected new timeline. During the investigation, the Investigator will meet separately with the Complainant, Respondent, and witnesses who may have relevant information, and will gather other available and relevant evidence and information. The Investigator will make findings of fact based on a preponderance of the evidence. The interviews may be electronically recorded at the discretion of the Investigator and will be maintained by the Responsible Administrator. It will be the sole electronic recording permitted; the parties and witnesses are not permitted to make their own recording of their interview. No recording devices, including cell phones, will be permitted in the room where the interview is taking place other than the Investigator’s recording device. To the extent a student who is a Respondent declines to participate in the investigation, non-participation may not be used as a basis for appeal and the Investigator will make findings of fact without the input of the Respondent. Employees of the University are required to participate in the investigation process. The Investigator may bring support staff to investigative interviews or other proceedings to assist in the process. Parties and witnesses may bring an Advisory Support Person, as described below. No other persons are permitted at an investigatory interview or other proceeding unless granted permission by the Responsible Administrator.
- Consent Required for Privileged Information.
The Investigator cannot access, consider, disclose, or otherwise use a Party’s records which are protected by a legally recognized privilege, including, but not limited to, the following: the attorney-client privilege, questions and evidence 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 the Investigator obtains that party’s voluntary, written consent to do so.
- Sexual History.
The Investigator may not consider a Complainant’s prior or subsequent sexual history with the following two exceptions: if such information is 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.
- Prior Dating Relationship.
The Investigator may not consider the existence of a dating relationship or prior or subsequent consensual sexual relations between the Complainant and Respondent unless the evidence is relevant to how the parties communicated consent in prior or subsequent consensual sexual relations. Where the Investigator allows consideration of evidence about a dating relationship or prior or subsequent consensual sexual relations between the Complainant and the Respondent, the mere fact that the Complainant and Respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual. Before allowing the consideration of any evidence of a prior dating relationship, the Investigator shall provide a written explanation to the parties as to why consideration of the evidence is appropriate.
- Investigation Documentation.
The Investigator shall prepare a written summary to the Responsible Administrator that includes a statement of the allegations and issues, the perspectives of the parties (e.g., admissions or denials), a summary of the evidence, findings of fact and information supporting such findings, credibility determinations for all witnesses, including the Complainant and Respondent without basing such determination on the person’s status as a Complainant, Respondent or witness. At the request of the Responsible Administrator, the Investigator may also make a recommendation regarding whether any University policy violations occurred.
- Investigation File.
The investigation file, including the final report, interview recordings and any documentary evidence relied upon by the Investigator, shall be maintained by the Responsible Administrator and shall not be made available to the Complainant, Respondent or any witness unless otherwise required by law (including, but not limited to, requirements under the Violence Against Women Act). The Responsible Administrator may share the investigation file with others as needed to carry out their obligations under this policy.
- Preventative and Corrective Measures.
If no investigation is required, or following the completion of an investigation, the Responsible Administrator shall: 1. forward the investigation file and/or other appropriate documentation for all matters involving employees (including student-employees) to the Office of Human Resources; and 2. forward the investigation file and/or other appropriate documentation for all matters involving students to the Department of Student Development, for the purpose of determining whether a policy violation has occurred and, if so, what Preventative and Corrective Measures should be implemented. The Office of Human Resources and the Department of Student Development may issue Preventative and Corrective Measures or may refer the matter for further adjudication or resolution under other applicable University policies, and shall provide the Parties notice of the decision in writing (“Notice of Decision”), as appropriate. The Notice of Decision shall set forth the findings of fact and, if appropriate, all Preventative and Corrective Measures imposed. In cases of Sex- Based Misconduct involving a student Respondent, the Notice of Decision shall also set forth credibility assessments, if such assessments determined the outcome of the matter. Preventative and Corrective Measures may include, but are not limited to: training and education, counseling, suspension, participation in a voluntary restorative process, separation from employment, expulsion from the University’s academic programs, or as otherwise defined in this Policy. Except as otherwise provided below in Sections XI.I. and XI.J., the Notice of Decision shall be final.
- Right to Request a Student Judicial Board Hearing in Cases of Sex-Based Misconduct Where the Preventative and Corrective Measures Include Student Suspension or Expulsion from An Academic or Extracurricular Program.
In situations where the Preventative and Corrective Measures to be imposed include suspension or expulsion from the University’s academic program or University-controlled extracurricular programs, a student Respondent who disagrees with the Notice of Decision may request a hearing in writing submitted to the Responsible Administrator within five (5) business days only. The Title IX Coordinator shall establish procedures for the conducting of Student Judicial Board Hearing’s for this purpose. Such procedures shall include, at a minimum, the following: 1. an external hearing officer may be, but is not required to be, utilized as part of the Student Judicial Board Hearing process; 2. at hearing the Respondent may indirectly question the Complainant and/or witnesses before a neutral decision-maker with the power to independently find facts and make credibility assessments; 3. the hearing shall be informal, and rules of evidence shall not apply; 4. questions for each person must be submitted to the Responsible Administrator by the Respondent at least three (3) days in advance of the hearing; 5. only questions that are relevant will be permitted at the hearing; 6. only the Parties, witnesses, Advisory Support Persons, the Title IX Coordinator, University support staff, and support staff of external professionals involved in the proceeding may attend the hearing; and 7. generally, the parties may not introduce evidence, including witness testimony, at the hearing that the party did not identify during the investigation and that was available at the time of the investigation unless permitted by the discretion of the hearing officer for good cause. However, the hearing officer has discretion to accept for good cause, or exclude, such new evidence offered at the hearing. Following the hearing, the Responsible Administrator will communicate the outcome to the Respondent with a Notice of Student Judicial Board Hearing Decision, which shall include the decision as to findings of fact and credibility. If the Respondent wishes, they may appeal the Notice of Student Judicial Board Decision as described in Section J below.
- Appeal Rights.
Either the Complainant or the Respondent may appeal the Notice of Decision or Notice of Student Judicial Board Hearing Decision in writing submitted to the Responsible Administrator within five (5) business days from the date of the notice based on one or both of the following criteria: 1. new evidence has come to light that was not available at the time of the investigation; or 2. procedural errors or unfairness, including, but not limited to, bias of an investigator, Responsible Administrator, hearing officer or decision-maker. Only appeals which raise new evidence or procedural issues that may alter the findings of fact or decision regarding Preventative and Corrective Measures will be considered. Upon receipt of an appeal, the Responsible Administrator will review the appeal to determine if it meets the required criteria and, if so, forward the appeal to an appeal adjudicator. The appeal adjudicator may affirm the finding, affirm but modify the Preventative and Corrective Measures, or remand the matter back for further investigation and/or other proceedings. All appeals adjudicator decisions are final.
All notices and communications to FPU faculty, staff, administration, and students will be delivered via the University’s email system. All such parties have a responsibility to promptly read all University emails. For individuals outside of the FPU community (including former employees and former/withdrawn students), notices and communications will be sent to the most recent email and physical home address on file with the Responsible Administrator.
- Advisory Support Person.
The Complainant and/or Respondent may choose anyone (including legal counsel, a colleague, friend, family member or other representative) to voluntarily serve as an advisory support person (“Support Person”). The Complainant and Respondent may be accompanied by their advisory support person to any meeting or proceeding under this Policy; however, the advisory support person may not speak on their behalf, advise them on how to answer a question of the Investigator, or otherwise engage with the Investigator or others participating in any part of the process under this Policy. The Complainant and Respondent must notify the Responsible Administrator at least three business days in advance if they wish to bring an advisory support person and must disclose their name and contact information to the Responsible Administrator. The Responsible Administrator may require the Complainant and/or Respondent to select a different advisory support person if the person selected is a witness to the matters contained in the Complaint.