Investigation and Resolution of the Formal Complaint
Members of the Title IX team participating in the investigation shall be relieved of his or her obligations under these complaint resolution processes within a reasonable timeframe fairly and impartially. If a member of the team determines that he or she cannot apply these processes fairly and impartially because of the identity of a Complainant, Respondent, or witness, or due to any other conflict of interest, the Title IX Coordinator will designate another appropriate individual to participate in the processes.
Mercy College reserves the right to utilize external resources to assist in the investigation and resolution of the formal complaint.
The purpose of the investigation is to determinate whether it is more likely than not that the alleged behavior occurred and, if so, whether it constitutes Sexual Harassment in violation of this policy.
In a case where the Complainant files a Formal Complaint, the Title IX Coordinator will evaluate the Formal Complaint and must dismiss it if the Title IX Coordinator determines:
The conduct alleged in the Formal Complaint would not constitute Sexual Harassment, even if proved; or
The conduct alleged in the Formal Complaint falls outside the scope of the policy.
In the event the Title IX Coordinator determines the Formal Complaint should be dismissed, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other College offices, as appropriate.
Within five (5) business days of the Title IX Coordinator receiving a Formal Complaint, the Title IX Coordinator will send a written notice to the Complainant and Respondent that includes:
A physical copy of this policy or a hyperlink to this policy;
Sufficient details, including (if known) the identities of the parties, the conduct at issue and the date and location of the alleged incident.;
A statement indicating the respondent is presumed not responsible for the alleged Sexual Harassment and that a determination of responsibility will not be made until the conclusion of the resolution process and any appeal;
The requirement that all statements must be accurate.
The parties right to an advisor of their choice. Should a party not have an advisor, one will be provided, free of charge, for the purpose of conducting the cross examination.
Information for the Complainant and Respondent of their right to inspect and review evidence and information about resources available on campus and in the community.
Should Mercy College elect, at any point, to investigate allegations that are materially beyond the scope of the initial written notice an additional written notice will be provided describing the additional allegations to be investigated.
After the written notice of Formal Complaint is sent to the parties, an Investigating Officer will be selected by the Title IX Coordinator, who will undertake an investigation to gather evidence relevant to the alleged misconduct, including inculpatory and exculpatory evidence.
The Investigating Officer will begin the investigation as soon as practical. During the course of the investigation, the Investigating Officer may receive counsel from College administrators, College’s attorneys, or other parties as needed.
The burden of gathering evidence sufficient to reach a determination in the resolution lies with Mercy College and not with the parties.
Parties of the investigation and any witnesses will receive a written notice of any interview, meeting or hearing they are expected to attend with sufficient notice to prepare. The notice will include dates, time and location, the participants and the purpose.
During the investigation, both parties will have equal opportunity to present witnesses including both fact and expert witnesses, along with relevant evidence and to present other inculpatory and exculpatory evidence. The investigator retains discretion to limit the number of witness interviews the investigator conducts if the investigator finds that testimony would be unreasonably cumulative, if the witnesses are offered solely as character references and do not have information relevant to the allegations, or if the witnesses are offered to provide information that is categorically inadmissible, such as information concerning sexual history of the Complainant. The investigator will not restrict the ability of the parties to gather and present relevant evidence on their own.
A party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the resolution absent a showing of mistake, inadvertence, surprise, or excusable neglect.
All parties and witnesses involved in the investigation are expected to cooperate and provide complete and truthful information.
The investigator will take reasonable steps to ensure the investigation is documented. Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed. The particular method utilized to record the interviews of the Complainant, Respondent, and witnesses will be determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.
The Complainant and the Respondent have the right to be accompanied by an advisor of their choice during interviews and meeting.
The Complainant and the Respondent have equal opportunity to inspect and review any evidence gathered during the investigation directly related to the allegations in the formal complaint, including any evidence the College does not intend to rely upon in a hearing. Each party and the advisors will be sent, electronically, the evidence and will have ten (10) business days to submit a written response. The Complainant and Respondent and their advisors are permitted to review the evidence solely for the purposes of this process and may not duplicate or disseminate the evidence.
The Investigating Officer will review the statements and evidence presented, review documentary materials, and take any other appropriate action to gather and consider information relevant to the Formal Complaint. The investigation will end in a written report that will be submitted to the Hearing Panel.
After the period for the Complainant and Respondent and their advisors to provide a written response as has expired, the investigator will complete another written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree. When the investigation report is complete, the investigator will send a copy to the Title IX Coordinator. The investigator will also send the investigation report to each party and their advisor, in either electronic or hard copy form.
Although the length of each investigation may vary depending on the circumstances, the College strives to complete each investigation within thirty (30) to forty-five (45) business days of sending the written notice of Formal Complaint.
After the Investigating Officer has sent the report to the parties, the Title IX Coordinator will send to each party a notice advising them of two different resolution processes: a live hearing, which is the default process, and an Administrative Resolution process. Administrative Resolution is in lieu of a live hearing. The Complainant and Respondent must consent to utilizing the Administrative Resolution process. A written consent form will be sent to all the Complainant and Respondent who will have three (3) business days, from the date of the consent form, to return the signed form. If either the Complainant, Respondent or both do not return the signed consent form within the timeframe, it will be determined that the Administrative Resolution process is not desired and a live hearing will be used. The Complainant and Respondent are encouraged to seek advice from their advisor or others prior to consenting to an Administrative Resolution process.
The Title IX Coordinator will appoint an Administrative Officer. The Administrative Officer will send written notice to the Complainant and Respondent of his/her appointment; a deadline for the Complainant and Respondent to submit any written response to the investigation report, date and time to meet with the Administrative Officer, separately. The meetings will not be held any earlier than ten (10) days from the date of the written notice.
The written response must include the extent the Complainant or Respondent disagrees with the report; if any evidence should be excluded from consideration; whether any allegations are supported by a preponderance of the evidence; and whether the allegations constitute Sexual Harassment.
After reviewing the written responses, the Administrative Officer will meet separately with each party to provide an opportunity to make any statements or ask questions. After reviewing the information, The Administrative Officer will determine the resolution.
At any time after the Complainant and Respondent are provided written notice of the Formal Complaint and before the completion of any appeal, the parties may voluntarily consent, with the Title IX Coordinator’s approval, to engage in mediation, facilitated resolution, or other form of dispute resolution with the goal of determining a final resolution of the allegations raised in the Formal Complaint and agreed upon by the Complainant and Respondent in writing.
Informal resolution may be used in lieu of the formal investigation and determination procedure.
The Title IX Coordinator will consider the following factors to assess whether an informal resolution is appropriate:
The amenability to the informal resolution by the Complainant and Respondent;
The likelihood of a resolution, taking into account the dynamics between the Complainant and Respondent;
Cleared violence risk assessment/ongoing risk analysis;
Rationality of the Complainant and Respondent; and
Goals of the Complainant and Respondent.
Prior to initiating an informal resolution process, the Complainant and Respondent will be given a written notice of the allegations, a description of the informal resolution process, information regarding the individual responsible for facilitating the informal resolution (Title IX Coordinator or designee), explanation of the effect of participating in informal resolution and/or reaching a final resolution will have his/her ability to resume the investigation and resolution of the allegations at issue in the Formal Complaint, and description of any other consequence resulting from participation in the informal resolution process, including a description of records that will be generated, maintained, and/or shared.
During the informal resolution process, the investigation and resolution processes that would otherwise occur are halted and all related deadlines are suspended.
The Complainant will not be required to resolve the issue directly with the Respondent.
If the Complainant and Respondent reach a resolution through the informal resolution process, and the Title IX Coordinator agrees that the resolution is not clearly unreasonable, the Title IX Coordinator will provide a written document with the terms of the agreed resolution and present the resolution to the Complainant and Respondent for their written signature. Upon their signatures and the Title IX Coordinator’s signature, the resolution is considered final, and the allegations addressed by the resolution are considered resolved and will not be subject to further investigation, remediation, or discipline by the College, except as otherwise provided in the resolution itself, absent a showing that the Complainant or Respondent induced the resolution by fraud, misrepresentation, or other misconduct or where required to avoid an injustice to either or to Mercy College.
The Complainant or Respondent may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized.
Absent an extension by the Title IX Coordinator, any informal resolution process must be completed within twenty-one (21) business days. If an informal resolution process does not result in a resolution within twenty-one (21) business days, and there has been no further extension, temporary suspension, or other contrary ruling by the Title IX Coordinator, the informal resolution process will be deemed terminated, and the Formal Complaint will be resolved using the investigation and resolution processes. The Title IX Coordinator may adjust any time periods or deadlines in the investigation and/or resolution process that were suspended due to the informal resolution.
Informal resolution cannot be used in situations in which an employee is accused of Sexual Harassment against a student.
The investigation will be followed by a live hearing in which the hearing panel, Complainant, Respondent, advisors and witnesses attend. Hearings will be recorded and available to the parties of the investigation for inspection and review on reasonable notice, including for use in preparing any subsequent appeal. The Title IX Coordinator provide the Hearing Panel a copy of the investigation report and a copy of all evidence sent to the parties by the investigator.
The Title IX Coordinator will select the appropriate Hearing Panel depending on whether or not the Respondent is an employee or a student. One of the panelists will be appointed as Hearing Panel Chair.
After the Hearing Panel is appointed, the Chair will promptly send a written notice to the parties notifying them of:
·The Hearing Panel appointments;
·Deadline for to submit any written response to the investigation report;
·Date for the pre-hearing conference;
·Date and time for the hearing.
Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten (10) business days from the date this written notice was sent.
The Complainant’s or Respondent’s written response to the investigation report must include:
- The extent he/she disagrees with the investigation report, any argument or commentary regarding the disagreement;
- Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
- A list of any witnesses that the Complainant and Respondent wants to be sent an attendance notice to attend the hearing;
- A list of any witnesses attending the hearing without an attendance notice issued by the Hearing Panel Chair;
- Any objection to the policy or procedures;
- Any request that the Complainant and Respondent be separated, physically, during the pre-hearing conference and/or hearing;
- Any other accommodations with respect to the pre-hearing conference and/or hearing;
- The name and contact information of the advisor who will accompany the Complainant and Respondent at the pre-hearing conference and hearing;
- If an advisor is not available, a request that the College provide an advisor for purposes of conducting questioning.
A written response to the investigation report may also include:
• Information regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and
• Information regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
Prior to the hearing, the Hearing Panel Chair will conduct a pre-hearing conference with the Complainant, Respondent and their advisors. The pre-hearing conference will be conducted live, with simultaneous participation by the Complainant and Respondent their advisors. However, upon request of the Complainant or the Respondent, separate rooms can be used to separate them. Technology will be used to enable them to participate simultaneously by video and audio.
In the Hearing Panel Chair’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously.
During the pre-hearing conference, the Hearing Panel Chair will discuss the hearing procedures; address matters raised in the written responses to the investigation report, as the Hearing Panel Chair deems appropriate; whether any stipulations may be made to expedite the hearing; the witnesses requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the Chair determines, in his/her discretion, should be resolved before the hearing.
After the pre-hearing conference, the Hearing Panel Chair will send notices of attendance to the witnesses. The notice will advise the individual of the date and time of the hearing and to contact the Hearing Chair immediately if there is a material and unavoidable conflict.
The individual who is requested to attend should notify his/her manager or instructor, if attendance at the hearing will conflict with job duties, classes, or other obligations. Managers and instructors are required to excuse the individual of the obligation, or provide some other accommodation, so that the individual may attend the hearing.
Mercy College will not issue a notice of attendance to any witness who is not an employee or a student.
Participants at the hearing include the Hearing Panel Chair, the Hearing Panel, any additional panelists (if applicable), the hearing facilitator (if applicable), the Investigating Officer, the Complainant and Respondent, advisors, witnesses, the Title IX Coordinator and anyone providing authorized accommodation or assistive services as determined by the College. Except as otherwise permitted by the Hearing Panel Chair, the hearing will be closed to all persons except those identified above. With the exception of the investigating Officer, the Complainant and the Respondent, witnesses will be sequestered until they have completed their testimony.
The Complainant and Respondent will be given the names of individuals participating in the hearing, all pertinent evidence and the final investigation report at least ten (10) business days prior to the hearing. Names of the Hearing Panel will be given to them at least five (5) business days prior to the hearing. Objections to the Hearing Panel must be submitted to the Title IX Coordinator no later than one (1) business day prior to the hearing. The Title IX Coordinator will determine if the objection is one of bias or conflict and warrants removal from the hearing process.
The Hearing Panel will be given a list of the names of the Complainant and Respondent, witnesses and advisors at least five (5) business days in advance of the hearing. Any panelist who cannot make an objective determination must recuse themselves from the hearing.
The hearing will be conducted live, with simultaneous participation by the Complainant and Respondent and their advisors. By default, the hearing will be conducted with the participants together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling them to participate simultaneously by video and audio.
In the Hearing Panel Chair’s discretion, the hearing may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously by use of technology.
Each Complainant and Respondent will have the opportunity to address the Hearing Panel directly and to respond to questions posed by the Hearing Panel.
Advisors will be permitted to cross examine the other party and any witnesses with relevant questions and follow-up questions, including those bearing on credibility. The Complainant and Respondent are not allowed to cross examine. Cross examination must occur in real time, directly and orally. The Complainant and the Respondent will have the opportunity to raise objections to testimonial or non-testimonial evidence and to have such objections ruled on by the Hearing Panel Chair and a reason for the ruling provided.
The Complainant and Respondent and their advisors will have access to the investigation report and evidence that was sent to them. While the Complainant and Respondent have the right to attend and participate in the hearing with an advisor, a Complainant, Respondent and/or advisor who materially and repeatedly violates the rules of the hearing in such a way as to be materially disruptive, may be barred from further participation and/or have their participation limited, as the case may be, in the discretion of the Hearing Panel Chair.
Subject to the minimum requirements specified in this section, the Hearing Panel Chair will have sole discretion to determine the manner and particulars of any given hearing, including the length of the hearing, the order of the hearing, and questions of admissibility. The Hearing Panel Chair will independently screen questions for relevance in addition to resolving any objections raised by the parties and will explain the rational for any evidentiary rulings.
The hearing is not a formal judicial proceeding and strict rules of evidence do not apply. The Hearing Panel Chair will have discretion to modify the procedures when good cause exists to do so, provided the minimal requirements specified in this section are met.
The Complainant and Respondent will be have an opportunity to submit evidence that the party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect.
If the Complainant, Respondent and/or witnesses prefer not to attend or cannot attend the hearing in person, he/she should request alternative arrangements from the Title IX Coordinator at least five (5) business days prior to the hearing. The Title IX Coordinator will allow remote testimony without compromising the fairness of the hearing.
Should the Complainant, Respondent or witness refuse to submit to cross-examination, that individual’s statement will not be considered and a decision will be reached based on the remaining relevant evidence. A conclusion will not be reached solely based on the fact that the individual refused to be cross examined.
The Complainant and Respondent will be given the opportunity to make a brief closing argument. After the hearing is complete, the Hearing Panel will objectively evaluate all relevant evidence collected during the investigation, including both inculpatory and exculpatory evidence, together with testimony and non-testimony evidence received at the hearing, and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The Hearing Panel Chair will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference, or during the hearing. The Hearing Panel will resolve disputed facts using a preponderance of the evidence standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.
In the event the Hearing Panel determines the Respondent is responsible for violating this policy, the Hearing Panel Chair will, prior to issuing a written decision, consult with an appropriate College Cabinet member with disciplinary authority over the Respondent. This individual will determine any discipline to be imposed. The Hearing Panel Chair will also, prior to issuing a written decision, consult with the Title IX Coordinator who will determine whether and to what extent ongoing support measures or other remedies will be provided to the Complainant.
At the conclusion of the hearing, the Hearing Panel will issue a written determination of responsibility using preponderance of the evidence. The determination will include identification of the allegations potentially constituting Sexual Harassment made in the Formal Complaint, description of the process taken upon receipt of the Formal Complaint, including notification to the parties, interviews with the parties and witnesses, site visits, methods used to gather non-testimonial evidence, and the date, location, and people who were present at or presented testimony at the hearing, findings of fact made under a preponderance of the evidence standard that support the determination, a statement and rationale for each allegation that constitutes a separate potential incident of Sexual Harassment, including a determination regarding responsibility for each separate potential incident, a statement of any disciplinary actions taken , whether any ongoing support measures or other remedies will be provided to the Complainant, and a description of the appeal process and grounds for appeal.
The Hearing Chair’s written determination will be sent to the Complainant and the Respondent which concludes the hearing process, subject to any right of appeal as specified below.
Although the length of each resolution by hearing will vary depending on the circumstances, the College strives to issue the Hearing Panel Chair’s written determination within fourteen (14) business days of the conclusion of the hearing.
The notice of outcome will be shared with the Complainant, Respondent and advisors within seven (7) business days of receiving the determination from the Hearing Panel Chair. The notice will include the determination, rationale and any applicable sanction(s).
The written determination will be become final upon the earlier of when: the parties are notified of the determination on appeal; or the time to file an appeal has passed with neither party appealing.
During the investigation and resolution processes, questioning regarding a Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence is offered to prove that someone other than the Respondent committed the conduct alleged, 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. A Complainant who uses information otherwise considered irrelevant by this section for the purpose of supporting the Complainant’s allegations, will be determined to have waived the protections of this section.
Treatment Records and Other Privileged Information
During the investigation and resolution processes, the investigating Officer and Hearing Panel, are not permitted to access, consider, disclose, permit questioning concerning, 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 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; or
•Information or records protected from disclosure by any other legally-recognized privilege, such as the attorney client privilege unless the College has obtained the party’s voluntary, written consent to do so for the purposes of the investigation and resolution process.
The Investigating Officer and/or Hearing Panel may consider any such records or information otherwise covered by this section if the Complainant or Respondent holding the record consents to disclosing the records or information to support their allegation or defense.
Some instances of Sexual Harassment may also constitute criminal conduct. In such instances, the Complainant is also encouraged to file a report with the appropriate law enforcement authorities. The pending criminal investigation, does not relieve the College of its responsibilities under the law. Therefore, to the extent doing so does not interfere with any criminal investigation, the College will proceed with its own investigation and resolution of the Formal Complaint.
Dismissal During Investigation or Resolution
Mercy College will dismiss a Formal Complaint at any point during the investigation or resolution process if the Title IX Coordinator determines that one or more of the following is true:
The conduct alleged in the Formal Complaint would not constitute Sexual Harassment, even if proved; or
The conduct alleged in the Formal Complaint falls outside the scope of the policy.
A Formal Complaint may dismiss, at any point, during the investigation or resolution process if the Title IX Coordinator determines that any one or more of the following is true:
The Complainant provides the Title IX Coordinator written notice that the Complainant wishes to withdraw the Formal Complaint or any discrete allegations therein (in which case those discrete allegations may be dismissed);
The Respondent is no longer enrolled or employed by Mercy College,; or
Specific circumstances prevent Mercy College from gathering evidence sufficient to reach a determination as to the Formal Complaint, or any discrete allegations therein (in which case those discrete allegations may be dismissed).
In the event the Title IX Coordinator dismisses a Formal Complaint pursuant to this Section, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other College offices, as appropriate. A dismissal pursuant to this Section is presumptively a final determination as it pertains to this policy, unless otherwise specified in writing by the Title IX Coordinator in the written notice of dismissal.
Sanctions and Remedies
The College will impose reasonable steps to correct the effects of such conduct on the Complainant and others and to prevent the recurrence of discrimination, harassment and retaliation. Those include no-contact orders, change in class schedule for students, the provision of counseling or other support services, training and discipline for appropriate parties, including up to termination for employees or dismissal from the College for students.