Â鶹Æƽâ°æ

Table of Contents

I. Scope
II. Purpose
III. Definitions
IV. Procedural Requirements
V. Processing Reports and Formal Complaints 
VI. Notification of Allegations and Pre-Investigation
VII. Investigation
VIII. Determination
IX. Appeal
X. Approval, Amendment and Interpretation
XI. Related Policies and Documents

I. Scope

This procedure applies to Â鶹Æƽâ°æ (W&M) as a whole university.

This procedure applies to qualifying allegations of discrimination, harassment, retaliation, and sexual misconduct that are alleged or suspected to have been committed by a) any type of employee, including faculty, except as provided in the following paragraph or b) third parties (e.g. vendors, contractors, alumni/ae, visitors). The Student Discrimination and Title IX Complaint Procedure is used for addressing complaints and allegations of discrimination and harassment against students.

This procedure may not be used for faculty members or former faculty to appeal or complain of decisions not to renew, tenure or promote, except as provided in Section III(C)(1)(d) of the Faculty Handbook. This procedure does not replace other university procedures or Commonwealth Procedures for employees.  The Complaint Review Team (CRT) or the Title IX Coordinator (Coordinator) may refer the matter to another university procedure. 

Any member of the campus community or third-party can file a report or formal complaint under this procedure.

Exclusions; Special Cases

1. Disability Accommodation Decisions. There are separate procedures for qualified employees or students with disabilities to request reasonable accommodation and to appeal determinations made regarding such requests.
2. This procedure does not apply to applicants for employment. 
3. External Complaints. This procedure is designed for investigations resulting from internal formal complaints.  Investigations conducted in response to a complaint, charge or other action from an external agency, such as the Equal Employment Opportunity Commission (EEOC) or the Office of Civil Rights of the Department of Education (OCR), must comply with the requirements of those agencies.  
4. Contractors or Vendors. Allegations of misconduct by an employee of a contractor or vendor with W&M, such as Aramark, are handled by the company.  In some cases, there may be contractual provisions that dictate how the matter will be handled in relationship to the university.  As a general matter, W&M does not have the authority to discipline contractors or vendors. The university notifies the appropriate entity of the reported misconduct.  W&M will also take steps to protect members of the university community who are negatively affected by the reported misconduct.
5. Third Parties. The complaint resolution process outlined in this procedure is designed, in part, to respect the due process rights of employees and to provide the university with a basis to take disciplinary action when warranted.  Due process rights and discipline are not applicable for cases involving third parties, such as visitors.  Therefore, to conserve university resources and permit prompt response to reported misconduct, allegations against third parties may be investigated through a condensed process that includes collection of information and a written response from the third-party respondent. The university may take interim or permanent actions to prevent reported misconduct from continuing to affect the W&M community (e.g directing a third-party to stay away from W&M campus and activities.)

II. Purpose

W&M is committed to providing a safe and nondiscriminatory environment for all members of the university community and to respecting the rights of those accused of misconduct. The purpose of this procedure is to provide a fair, prompt and equitable resolution process of formal complaints made by students, employees or other persons who are participating in or attempting to participate in the university’s education programs or activities.

This procedure helps the university enforce two important policies relating to discrimination, harassment, sexual harassment, sexual misconduct and retaliation (collectively the “Policies”).

1. Policy Prohibiting Discrimination, Harassment, Retaliation and Sexual Misconduct(the “Discrimination Policy”)
2. Policy Prohibiting Title IX Sexual Harassment and Title IX Pregnancy Discrimination (the “Title IX Policy”). 

This procedure complies with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972 and the 2020 Title IX Final Rule, Sections 503 and 504 of the Rehabilitation Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Vietnam Era Veterans' Readjustment Assistance Act, the Genetic Information Nondiscrimination Act by providing an impartial and transparent process for complaint response and resolution.

III. Definitions

Advisor means a person chosen by a complainant or respondent to accompany them to meetings, interviews, and hearing proceedings related to the complaint resolution process, to advise them on the process and to ask questions of participants during the Hearing Panel Resolution on their behalf.

Appellate Officer means the trained university official who responds to appeals of complaint dismissal, administrative determination, responsibility determinations and/or sanctions imposed under this procedure by the Hearing Panel.

Complaint Review Team (“CRT”) means university administrators who assess initial reports of Title IX sexual harassment as defined in the Title IX Policy and sexual misconduct in the Discrimination Policy for risk, mandatory reporting external to the university, and supportive measures and who assess formal complaints for authorization of initial inquiry, investigation of specific alleged conduct that could constitute a violation of a policy provision, or dismissal of a formal complaint as described in this procedure. The CRT operates pursuant to Va. Code §23-1-806(D) which requires the university to establish a review team for acts of sexual violence. In their review, the CRT may access confidential information, including law enforcement records and criminal history information, as provided in Va. Code §19.2-389 and §19.2-389.1; health records, as provided in Va. Code §32.1-127.1:03; university disciplinary, academic and/or personnel records; and records maintained by the Office of Compliance & Equity (OC&E), and any other information or evidence known to the university or external law enforcement. For the Employee Procedure, the CRT is composed of the Title IX Coordinator (“Coordinator”) or designee from OC&E, a member of Â鶹Æƽâ°æ Police Department (“WMPD”), a member of University Human Resources (“UHR”) and/or a member of the Office of the Provost Leadership Team. 

Complainant means an individual who is alleged to have been subjected to conduct that may meet the definition(s) of prohibited conduct listed under Section IV of each of the Policies.

Disciplinary Sanction means a Level One or Level Two sanction as described in Appendix A and one or more Level Three sanctions imposed on a respondent following a finding of responsibility for alleged conduct that constitutes prohibited conduct under Section IV of each of the Policies.

Determination Official means the trained individual who makes an Administrative Determination of responsibility or non-responsibility for each allegation investigated.

Faculty means a university employee who has teaching and/or research responsibilities and who holds academic appointments in a department, program or school of the university, and/or administrators who hold an academic appointment in a program, school or department.   Professional faculty are not faculty for the purposes of this procedure. 

Formal Complaint Form means a document filed by a complainant or signed by the Coordinator requesting an investigative resolution or a mediated resolution for alleged conduct by a respondent that may constitute prohibited conduct under Section IV of each of the Policies.

Good Faith Report means one made with the honest belief that a violation of policy may have occurred. A report is not made in good faith if it is made with reckless disregard for or willful ignorance of facts that would disprove the allegation.

Hearing Panel means the group of three trained officials, one of whom is the designated Hearing Panel Chair, who conduct a live hearing and finding of fact in determination of responsibility or no responsibility for violation of university policy 

Investigative Resolution means the process outlined in this procedure for resolving formal complaints of conduct that may constitute prohibited conduct under Section IV of each of the Policies and may result in disciplinary sanctions.

Investigator means the trained person or persons assigned to investigate alleged conduct by collecting evidence, interviewing parties and witnesses, and summarizing their findings in an investigation report.

Mandatory Reporter means all university employees (including designated student employees such as Resident Assistants, Graduate Assistants) who are obligated by federal and state law to share with the Coordinator any knowledge, notice, and/or reports of Title IX sexual harassment or sexual misconduct as defined in the Policies.

Mediated Resolution means a voluntary process between or among parties that balances support and accountability without resulting in formal disciplinary action against a respondent.

Relevant means related evidence to the allegations of Title IX sexual harassment and/or protected class discrimination under investigation as part of these procedures. Questions and evidence in an investigative process are relevant when they aid in showing whether the alleged conduct occurred or not.

Remedy means a measure provided, as appropriate, to restore or preserve a complainant or any other person’s equal access to the university’s education program or activity when it is determined that this access was limited or denied by Title IX Sexual Harassment or protected class discrimination.

Report means information about alleged discrimination, discriminatory harassment, or retaliation, including Title IX sexual harassment or sexual misconduct, affecting any member of the university community that is communicated to the Coordinator.

Respondent means an individual who is alleged to have engaged conduct that may meet the definition(s) of prohibited conduct under Section IV of each of the Policies.

Retaliation means any material adverse action taken by a respondent, allied third party, or the university against a person because the person made a good faith report of prohibited conduct under Section IV of each of the Policies or because the person is involved in or participated in an investigation or proceeding under this procedure. Retaliation includes, but is not limited to, threatening, intimidating, harassing, coercing or any other conduct that would deter a reasonable person from engaging in activity protected under university policies. Retaliation does not include good faith counter complaints lawfully pursued in response to a report of discrimination or harassment, or non-discriminatory adverse actions taken for legitimate purposes.

Staff means a university employee who is designated as executive, professional, professional faculty, operational, classified and non-student hourly employees and who do not hold an academic appointment in a program, school, or department.

Supportive measure means non-disciplinary, non-punitive, individualized service offered as appropriate, reasonably available, and without fee or charge to the parties before or after making a report or filing of a formal complaint.  

Title IX Coordinator (“Coordinator”) means an official designated to coordinate compliance with Title IX, oversee implementation of this procedure and the related Policies, coordinate supportive measures, and monitor prompt and equitable resolution of reports and formal complaints.

IV. Procedural Requirements

A.   Rights of the Parties

The university treats complainants and respondents (collectively the “parties”) equitably.

The university offers and coordinates supportive measures for the complainant regardless of their involvement in a formal or mediated resolution process. If engaged in a resolution process, the university offers and coordinates supportive measures for both parties.

The university requires that anyone involved in the coordination, investigation, or adjudication of a complaint resolution process not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.

The university presumes that the respondent is not responsible for the alleged Title IX sexual harassment, sexual misconduct or protected class discrimination until a determination is made at the conclusion of the complaint resolution process.         

B. Evidence Evaluation

The university objectively evaluates all evidence that is relevant and not otherwise impermissible, including both inculpatory and exculpatory evidence. Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.

The following types of evidence, and questions seeking that evidence, are impermissible (i.e., will not be accessed or considered, except by the university to determine whether one of the exceptions listed below applies; will not be disclosed; and will not otherwise be used), regardless of whether they are relevant:

Evidence that is protected under a privilege recognized by Federal or State law, unless the person to whom the privilege is owed has voluntarily waived the privilege;

• A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the university obtains that person’s voluntary, written consent for use in this procedure; and
• Evidence about the complainant’s prior sexual conduct, unless the evidence is offered to prove that someone other than the respondent committed the alleged conduct or is offered to prove consent to the alleged sexual misconduct. The fact of prior consensual sexual conduct between the parties does not by itself demonstrate or imply the complainant’s consent.

C.    Timeline

The university seeks to resolve matters promptly and strives to conclude any formal complaint resolution process from the Notice of the Investigation (NOI) through the Appeal decision (if applicable) within 120 business days.

All time periods measured in days, unless otherwise specified, are in business days.  To the extent a deadline calculated in business days falls on a university holiday or scheduled closing, the deadline will be effective on the next business day. Time periods measured in hours are actual hours. 

The university allows for extension of the below timelines with reasonable delay considered carefully to maintain the prompt, equitable, and timely resolution of complaints.  Each party may receive one routine extension during the resolution process. The length of the extension will be determined by the Coordinator on a case-by-case basis in consideration of the applicable stage of the process, the associated deadline, the length of the extension requested, and the reason for the request.

Additional extensions of this timeline for extraordinary circumstances shall be documented and disclosed to the parties.

Reasons for extending the timeline include, but are not limited to, compliance with a request by law enforcement to temporarily pause our process, availability of witnesses, scheduled or unscheduled university closings or breaks (including winter and spring breaks); pause in the investigative process for attempts at mediated resolution, complexities of a specific case, including the number of witnesses and volume of information collected.

Timeframes for the major stages of the Employee Procedure are as follows with consideration for case complexity:

• Pre-Investigation Phase: 5 -10 days
• Investigation Phase: 30 - 60 days
• Determination Phase: 20 – 30 days
• Appeal Phase: 15 - 20 days

V. Processing Reports and Formal Complaints

A.   Reporting and Complaint Filing

Please see the Discrimination Policy and/or the Title IX Policy for information about who may file a report, how to file a report and options for anonymous, confidential and external reporting, as well as filing a criminal complaint with police.

B.    Reports

Initial Assessment
Upon receipt of a report, the initial assessment of risk, mandatory reporting to external entities, supportive measures, and next steps is conducted by OC&E and any appropriate administrator.

An initial determination is made as to the appropriate course of action after considering:

• the reported misconduct;
• the wishes of the complainant, if known;
• the risk to the overall university community; and
• applicable law and policy, determining which university procedure has jurisdiction over the reported misconduct.

Risk Assessment
For sexual violence reports, the CRT also assesses the threat posed by the reported conduct and determines whether external reports are required by state or federal law. The CRT makes this determination based upon the following factors (the “Risk Factors”): 

• Whether the respondent has prior arrests, reports and/or complaints of related misconduct or has any history of violent behavior;
• Whether the respondent has a history of failing to comply with any related university protective or disciplinary measures, and/or any judicial protective order;
• Whether the respondent has threatened to commit violence or any form of sexual misconduct;
• Whether the reported misconduct involved multiple respondents;
• Whether the reported misconduct involved physical violence. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking and brandishing or using any weapon;
• Whether the report reveals a pattern of misconduct (e.g., by the respondent, by a particular group or organization, around a particular recurring event or activity, or at a particular location);
• Whether the misconduct was facilitated through the use of drugs or intoxicants;
• Whether the misconduct occurred while the complainant was unconscious, physically helpless or unaware that the misconduct was occurring;
• Whether the complainant is (or was at the time of the reported incident) a minor (under 18); and/or
• Whether any other aggravating circumstances or signs of predatory behavior are present.

Supportive Measures
The Coordinator, in consultation with the CRT and UHR, oversees that reasonable supportive measures are offered and provided to the complainant by the appropriate university department.  Supportive measures are available regardless of the complainant’s engagement in a formal complaint.  If a formal complaint is submitted, supportive measures are available to all parties.

Standard supportive measures provided by the university include:

• Reassigning the complainant or respondent to another position or department;
• Modifying the work schedules of either party;
• Temporarily modifying supervisory relationships;
• Permitting remote work;
• Changing either party’s office location;
• Monitoring of the respondent to ensure no retaliation;
• Notifying Â鶹Æƽâ°æ Police to address any safety/security concerns;
• Issuing a bi-lateral no contact order.

Appropriate Course of Action
The CRT may recommend one of the following courses of action for a report:

• No further action under this procedure. No action under this procedure may be appropriate for reports that do not allege conduct that violates applicable university policy, reports for which there is insufficient information to initiate an investigation, reports where the university does not have jurisdiction over the respondent or the context in which the conduct occurred, or reports where the person reported to have experienced the misconduct has requested no action and the CRT’s assessment concludes that this request may be honored. If the complainant has requested that there be no investigation or requested to remain anonymous or is not participating in the process, in most cases this request will result in no action being taken.   
• Remedial, but non-disciplinary action. Upon notice to the complainant, the Coordinator or designee may take non-disciplinary remedial actions in response to a report.  Examples of non-disciplinary remedial actions include supportive measures or modifications provided to the complainant, educational activities designed to heighten awareness of specific policies or procedures or to clarify institutional expectations, modifications to institutional policies or practices, notice to the respondent of the unwelcome conduct and instruction to stop the conduct.  These recommended actions may be appropriate to address reports of unwelcome conduct of an unprofessional nature or retaliatory conduct that is not materially adverse.
• Referral to UHR. The CRT may refer a matter to UHR to evaluate through the performance management or employee conduct processes, the Commonwealth Department of Human Resource Managements’ Employment Dispute Resolution grievance program, or referral to mediation.
• More Information Needed. The CRT may recommend that the Coordinator or designee gather more information including statements from the complainant or potential witnesses or records from IT, UHR, or supervisors. Upon review of additional information gathered, the CRT may recommend that the formal complaint is dismissed or approved for investigation.
• Coordinator Files Formal Complaint. If the complainant has requested that there be no investigation or is not participating in the process, the CRT will determine whether a formal complaint should be filed by the Coordinator under this procedure to protect the health and safety of the campus community and/or individual students or employees, or to fulfill the university’s obligations to provide a campus environment free from harassment.  In making this determination, the CRT will consider the risk factors and any evidence showing that the respondent made statements of admission or otherwise accepted responsibility for the misconduct, the existence of any independent information or evidence regarding the misconduct, and any other available and relevant evidence other than the complainant’s report. If the CRT determines to authorize an investigation against the request of the complainant, the Coordinator will file a formal complaint and will notify the complainant in writing promptly.  A complainant is not required to participate in an investigation initiated when the Coordinator files a formal complaint on their behalf.

C.    Formal Complaint

A complainant may choose to file a formal complaint for either mediated resolution or investigative resolution. Mediated resolution is only available for formal complaints made by an employee or third-party against an employee. Formal complaints made by a student against an employee are not eligible for mediated resolution.

Upon receipt of a formal complaint filed by a complainant or filed by the Coordinator, within two (2) days the Coordinator sends to the respondent written notification of OC&Es receipt of the formal complaint with sufficient details of the alleged conduct, including who filed the formal complaint, when the alleged conduct occurred, and what conduct was reported; the policy provision(s) which may have been violated and the complainant’s choice of either mediated resolution or investigative resolution.

If the complainant has selected mediated resolution, the Coordinator will review the formal complaint for appropriateness for mediated resolution. If approved for mediated resolution, the Coordinator shall designate an internal or external mediator to lead the mediated resolution process. If not approved for mediated resolution or the respondent does not accept to participate in mediated resolution, the Coordinator informs the parties in writing that the formal complaint is not approved for mediated resolution, including the rationale. If not approved for mediated resolution, within five (5) days, the complainant may withdraw the formal complaint. If no withdraw is taken, on the sixth (6) day, the Coordinator shall initiate the process for investigative resolution.

If the complainant has selected investigative resolution or the Coordinator initiates the process as stated above, the respondent has at least two (2) business days to submit objective exculpatory evidence that refutes the conduct that was reported and/or the parties involved, or refutes that the formal complaint was not made in good faith. The Coordinator initiates an assessment of the formal complaint by the CRT within three (3) days.  Extension of this timeline for extraordinary circumstances shall be documented and disclosed to the parties.

The CRT reviews and disposes of a formal complaint for investigative resolution in one of the following ways:

• Authorization of Investigative Resolution of specific alleged conduct that potentially violates specific prohibited conduct as defined in Section IV of each of the Policies.
• Required dismissal of the formal complaint.
• Discretionary dismissal of the formal complaint.

Authorization of an Investigation
Formal complaints authorized for investigation by the CRT shall follow the procedural requirements under Sections VI through X of this procedure. Parties are notified in writing of the authorized investigation. In the event of required dismissal as described below, the CRT may review the alleged conduct and authorize an investigation for prohibited conduct under Section IV of the Discrimination Policy.
Required Dismissal of Formal Compliant for Title IX Sexual Harassment
The university must dismiss a formal complaint or any allegations therein if, at any time during the process, it is determined that:

• The conduct alleged in the formal complaint would not constitute sexual harassment as defined in the Title IX Policy.
• The conduct alleged did not occur in the university’s education program or activity.
• The conduct alleged did not occur against a person in the United States, or
• At the time of filing a formal complaint, a complainant is not participating in or attempting to participate in the education program or activity of the university.

In the event that the formal complaint is dismissed under this provision, the Coordinator shall notify the parties in writing within three (3) days. Complainants may appeal this decision per Section IX of this procedure.  

Discretionary Dismissal of Formal Complaints
If the CRT determines that the information available does not provide a reasonable basis for conducting an investigation under this procedure, that the university does not have jurisdiction over the respondent, or that this procedure is not applicable to the conduct alleged, the Coordinator will notify the parties in writing promptly that the formal complaint is not authorized for investigation. Complainants may appeal this decision per Section IX of this procedure.

D. Procedural Considerations  

Academic Freedom 
If the reported misconduct involves a faculty member and consists in significant part of conduct potentially protected by academic freedom, such as research activities, classroom discussion, course subject matter, or public writings, the CRT will consult with the appropriate Dean, the Provost or the Provost’s designee prior to finalizing the determination to take investigative action under this procedure.

Jurisdiction
The university has jurisdiction to investigate and adjudicate alleged misconduct committed by a respondent when the conduct:

• occurs on campus or on property owned or controlled by the university (university property);
• occurs in the context of university employment or an educational program or activity;
• uses university resources, such as workplace applications or e-mail; or
• occurs off-campus and outside a university program or activity, but such conduct has continuing adverse effects that may create a hostile environment for any member(s) of the campus community while on university property or in any university educational program or activity.

The CRT determines whether the university has jurisdiction and/or authority to conduct an investigation. Even if the university does not have jurisdiction to investigate a formal complaint, the university will take steps, when appropriate, to protect the complainant’s rights to participate in the university’s programs and activities such as by providing supportive measures for the complainant and preventing recurrence of conduct that could constitute discrimination, discriminatory harassment, including sexual harassment, retaliation or sexual misconduct by the respondent.

VI. Notification of Allegations and Pre-Investigation

The initiation of an investigation is a decision to collect evidence regarding a report; a respondent is presumed not responsible until a final determination is made.

A.   Written Notification

The Coordinator issues to the complainant and the respondent written notification of the allegations of conduct that potentially constitute a violation of prohibited conduct under the Policies. The Notice of Investigation (NOI) contains:

• the alleged conduct to be investigated, including the specific policy provision(s) at issue, the identity of the complainant, and available information regarding the date and location of incident(s);
• notice that allegations are subject to change based on information collected, but additional written notification must be provided if new policy provisions are being investigated for a potential violation;
• the process to be used (this procedure)
• the parties’ rights to available resources, including counseling, health, mental health, visa and immigration assistance, financial aid assistance and other services available within the institution and in the community;
• the right to choose an advisor of the party’s choice and a description of the role of the advisor in this process;
• prohibition against retaliation of the other party or witnesses;
• prohibition against knowingly making false statements or knowingly submitting false information during this process;
• a presumption that no misconduct has occurred and a determination regarding responsibility of a policy violation is made at the conclusion of this process;
• the party’s right to provide a written response to the allegations prior to the start of the investigation process;
• the party’s right not to incriminate themselves, and for silence not to be held against them.

The NOI is provided to the parties within ten (10) days of the authorization of the investigation by the CRT. Extension of this timeline for extraordinary circumstances shall be documented and disclosed to the parties.

B. Pre-Investigation Process Meetings with Parties

The Coordinator or designee communicates separately with each of the parties and their advisors prior to the commencement of the investigation. The purpose of the initial meeting is to review the process for formal complaint investigation and adjudication, to review the roles of the individuals involved in the process, and to provide the parties with information about preparing for meetings with investigators and submission of evidence to the investigation, including the importance of preserving evidence for investigators to evaluate.  Parties are not expected to provide statements, produce evidence, or respond to the allegations at this initial meeting. Pre-investigation process meetings shall be conducted within five (5) days of the NOI. Extension of this timeline for extraordinary circumstances shall be documented and disclosed to the parties.

C. Rights and Responsibilities of Parties

Faculty Respondents
OC&E will notify the Provost’s Office and the Chair of the Faculty Hearing Committee (FHC) for purposes of preparing for possible hearing. No other information about the parties involved, the allegations or the policy provisions will be shared with the Provost or the Chair of the FHC at this time.

Advisors and Silent Supporters
Each party has the right to an advisor of their choice. The advisor may attend meetings and interviews with the party.  Each party may also have a silent supporter.  The advisor and silent support may attend the live hearing.

Advisors and silent supporters may not participate as a witness in the investigation or live hearing. If the party chooses a potential witness to serve as their advisor, that person may not participate as a witness in the investigation to avoid potential conflict within the process. The party must decide whether to change their advisor or to forgo them serving as a witness who provides relevant evidence to the investigation.  A person selected by a party as an advisor of choice may decline to serve as the advisor, in which case the party has the right to choose another advisor.

The university expects parties to speak on their own behalf; an advisor does not respond to questions on the party’s behalf.  An advisor who disrupts a meeting, interview or proceeding may be required to leave.  

Parties may share records and investigation communications with their advisor. The advisor must sign a written agreement to maintain confidentiality.

Because of the importance of prompt processing of reports, advisors are expected to be reasonable and work with OC&E when scheduling meetings, interviews or the hearing.

In a live determination hearing, the party’s advisor is permitted to directly ask the other party and any witnesses all relevant questions and follow-up questions, including questions that challenge the person’s credibility.

Confidentiality and Limited Disclosure
Reports of misconduct are treated discretely. Confidential information is disclosed to others outside the process when required by law or when personal safety is at risk.

Disclosure of the authorization of an investigation without details of the alleged conduct or prohibited conduct is provided to the parties’ Department Chair, Program Coordinator, Dean, supervisor and/or unit head, to inform them that an investigation is being conducted, enlist their assistance with supportive measures and retaliation prevention. Such individuals may also be witnesses. 

Duty to Cooperate 
Parties and witnesses are expected to comply with all parts of this procedure throughout the investigation and resolution process.  The duty to cooperate includes at minimum communication with the Coordinator their desire not to participate as a witness and prohibition from influencing others not to participate. Employees may be required by their supervisor or second level supervisor to participate as a witness.

Retaliation, Witness Intimidation, or Other Abuse of Process
Employees and others involved in an investigation are prohibited from contacting witnesses or parties with the intent to intimidate them, influence testimony, harass, or circumvent the process in any way. Advisors are prohibited from contacting or communicating with witnesses or potential witnesses during the process.

If reports or evidence of retaliation or misconduct relating to the investigation itself (witnesses collaborating, for example) arise during the course of the investigation, the investigator or other administrator will notify the Coordinator and the Chief Compliance Officer of the behavior.  The Coordinator and the Chief Compliance Officer will determine whether additional supportive measures are necessary to respond to the reported retaliation or misconduct and will decide whether to address the reported retaliation or misconduct as a separate matter or as part of the current investigation. If they are addressed as part of the current investigation, the investigation may take additional time to conclude.

Meetings, Interviews, Communications and Notifications
Unless otherwise provided in this procedure, meetings and interviews with parties will be in person.  Exceptions may be made on a case-by-case basis.  Interviews will be recorded, and recordings of interviews will be shared during the Evidence Review phase as described in Section VII.D. of this procedure. Meetings may be recorded if requested by the party, and the administrator conducting the meeting will share the recording with the party at the conclusion of the meeting.

Notifications and communications about the process are made in writing and sent simultaneously to each party.  

Combined or Multiple Violations
In cases where more than one respondent is investigated for alleged conduct that is the same or substantially similar or related, the university typically will conduct a consolidated investigation process. Parties may sign a release to allow evidence to be shared among the respondents. Findings are specific to each respondent.

Similarly, reports of similar or related misconduct by multiple complainants regarding the same respondent typically will be investigated together. Parties may sign a release to allow evidence to be shared among the complainants.

Complainant Withdrawal of Participation or Request to Halt Investigation/Adjudication Process
Complainants have the right to participate or decline to participate in the investigation process, and to withdraw from participation. The university may proceed forward without the complainant’s participation. 

If the complainant no longer wants the process to continue, the Coordinator will consider carefully whether the university is obligated to proceed forward or whether the complainant’s wishes may be respected, based on the risk factors described in Section V.B.

Pre-Determination Conference Resolution 
Upon authorization of a formal complaint for investigative resolution by the CRT and at any point prior to the Determination Phase, either party may request resolution of the allegation(s) through a negotiated process wherein both parties agree to the terms, the complainant agrees to withdraw the formal complaint and the respondent either:  

• Accepts a finding of responsibility for the original allegations or other policy provisions under Section IV of the Policies and accepts appropriate sanctions, which may or may not be within the proscribed range of sanctions in this procedure, and which may or may not include a Level One or Two sanction, provided both parties agree to the terms of the resolution as approved by the Coordinator; or   
• Accepts one or more Level Three sanctions under Appendix A without a finding of responsibility for a violation or sanction notation in the employee personnel file, as approved by the Coordinator. 

Rules of Evidence
University proceedings are not bound by strict rules of legal evidence.  Reasonable efforts will be made to obtain the most reliable evidence available.  Information that does not come from a first-hand source (hearsay) may be considered.  Lie detector/polygraph evidence is not permissible.  Except as specifically provided in this procedure, the university is not required to consider evidence and may decide which evidence to exclude. 

As a general matter, evidence of character or reputation is not relevant. 

A complainant’s prior sexual history, character, or reputation is not relevant and will not be admitted as evidence. Where there was a relationship between the complainant and the respondent and consent is at issue, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties or to explain physical evidence. Sexual history of the complainant with other individuals is not relevant and will not be permitted, except to explain injury.

The following types of evidence of previous or other misconduct or related conduct by the respondent may be considered, including in a hearing, to the extent considered relevant:

• evidence of conduct similar in nature to the alleged misconduct by the respondent,
• evidence of a pattern of conduct or previous misconduct that should be considered together with the alleged conduct in determining whether a hostile environment was created, and/or
• evidence relevant to proving intent, state of mind, or identity.

Individuals with Disabilities
The university is committed to providing reasonable accommodations for students and employees with documented disabilities, in accordance with the Accommodation Policy and Procedure. Such accommodations may include, but are not limited to, administrative assistance, additional time, and/or reasonable accommodations during an interview, meeting or live determination hearing. Complainants or respondents with disabilities who need reasonable modifications to address alleged conduct are encouraged to meet with the ADA Coordinator or Student Accessibility Services as early in the process as possible to identify and plan specific accommodations.

Records Retention
Records produced or collected pursuant to this procedure shall be maintained in accordance with federal and state law, including the Records Retention Schedules of the Library of Virginia, which implement the Virginia Public Records Act.  Under General Schedule GS-103, Series 100479, investigative files relating to discrimination complaints against an employee are to be retained for three years.  Under Title IX regulations, the Final Investigation File relating to Title IX sexual harassment are to be retained for seven years. 

Precautions are taken to protect sensitive, confidential information including the investigation report and related communications, such as the use of secure file transfer technology.  Additional steps may be taken when sharing information with people who are not university employees or students, such as providing access to documents rather than copies.   

Recusal
The individuals specified in this process who are assigned with responsibilities relating to the initial review, investigation, assigned advisor, determination or appeal may recuse themselves or delegate their roles to others as necessary to ensure neutrality or to accommodate leave or professional or personal conflicts. Individuals must disclose potential conflicts of interest at the time they are assigned a role in the process, and the Coordinator may require an individual to recuse themselves to ensure neutrality or avoid the appearance of a conflict of interest in the process.

VII. Investigation

A. Investigators; Investigation Plan

Investigators
The investigators are objective, neutral individuals responsible for the collection of evidence. All investigators receive annual training in investigation technique, relevant law, university policies and procedures, evaluating credibility assessment, and other relevant topics.   Investigators typically work as a two-person team. In extraordinary circumstances, external investigators may be used to ensure a fair, prompt and equitable investigation that is free from bias. The investigators’ job is to gather evidence relevant to the allegations and to document their investigation, the evidence collected and the finding of facts in a final  investigation report. The investigators do not make a determination of responsibility.

Investigation Plan
Prior to evidence collection, including interviews with parties and witnesses, investigators develop an investigation plan that is reviewed by the Coordinator. The investigation plan is finalized within seven (7) days of the pre-investigation process meetings with the parties.  Extension of this timeline for extraordinary circumstances shall be documented and disclosed to the parties. Investigation plans may be updated during the course of the investigation as necessary.

B.   Evidence Collection

Interviews with Parties and Witnesses
Investigators conduct interviews with the parties and witnesses.  Interviews with the parties typically are in person. Exceptions may be made on a case-by-case basis.  Interviews will be recorded and recordings of interviews will be shared during the Evidence Review phase as described in Section VII.D. of this procedure. Third-parties other than an advisor are not permitted to be present during interviews; interviews are attended by the interviewee, the advisor of choice, and the investigator(s), and a note-taker (in the discretion of the investigator(s)).

Parties may submit names of individuals who are able to provide relevant information regarding the allegations. The party should specify the nature of the information the individual may provide. Investigators make the determination on who will be interviewed and may decline to interview individuals proposed by the parties. This determination is made based on the relevancy and reliability of the anticipated information. Investigators are not required to interview individuals that provide only information about the party's character, that cannot offer information relevant to the scope of the investigation, whose anticipated information is duplicative, and/or limited to undisputed facts. Interviews with witnesses may be conducted in-person, via Zoom or teleconference, or through written interrogatories.

Documentary Evidence
Investigators collect documentary evidence that is deemed relevant to the investigation.  Investigators may contact other departments and units to collect documentary evidence.  Collection and review of documentary evidence can include photographs, text messages, social media postings, medical records, emails or audio recordings, comparisons of timelines of events, visual evaluation of relevant locations and recording of observations through investigative photographs or other means. Students and employees are required to produce any relevant records upon request.

Each party may introduce evidence during the investigation. Parties are not required to themselves uncover and produce evidence; if a party has cause to believe certain evidence exists, they shall disclose it to an investigator as soon as they become aware of the potential evidence.

Evidence that is available during the investigation and not submitted to investigators shall not be considered as new evidence for an appeal.

Questions for Other Party
Each party has the right to suggest issues to be explored with or questions to be asked of the other party. The investigators determine which issues or questions are relevant and the appropriate investigative method for acquiring information. 

Expert Witnesses
Investigators may seek information from university officials or others with relevant scientific or other specialized knowledge, to help understand evidence, evaluate medical records, or determine a disputed issue.  Parties may provide or suggest an expert witness as well. 

Credibility Assessment
Investigators may assess the credibility of evidence provided by a party or witness based on consistency of statements, corroboration of statements by witnesses or documentary evidence, plausibility of statements made, and conflicting documentary evidence provided.  An investigator’s assessment that certain evidence lacks credibility is provided as information to assist the Hearing Panel or Determination Official in considering the relative weight and value of that evidence. 

C. Modification or Dismissal of Alleged Conduct

Investigators may modify the alleged conduct over the course of the investigation in response to information collected.  Investigators provide written notification the parties of any significant modifications to the alleged conduct being considered and provide them with an opportunity to respond.  If the modification includes a potential violation of additional prohibited conduct other than prohibited conduct listed in the original NOI, Investigators will refer the information to the Coordinator, who will review the information with the CRT and determine whether to issue a modified NOI. If a modified NOI is issued, the process for the new prohibited conduct and alleged conduct begins at the Investigation Plan stage as described in Section VII.A.

The investigators may recommend discretionary dismissal to the CRT of some or all of the alleged conduct during the course of the investigation if objective, documentary evidence disputes the alleged conduct. Investigators will provide a summary of the objective documentary evidence and a rationale for the recommendation of dismissal, along with the enclosures of the documentary evidence to the CRT. The CRT will decide if there is a reasonable basis for discretionary dismissal of the previously approved alleged conduct. 

If the CRT discretionarily dismisses one or more of the allegations, the Coordinator communicates in writing to the parties the CRT’s decision within three (3) days. If the CRT approves discretionary dismissal of some of the alleged conduct, but not all, the investigation will continue per the procedure and the decision to dismiss the alleged conduct may be appealed at the conclusion of the determination.  If the CRT approves discretionary dismissal of all of the alleged conduct, the parties may review any evidence obtained as part of the investigation and submit an appeal per Section IX of this procedure within ten (10) days of receipt of the evidence for review.

D. Evidence Review and Preliminary Investigation Report

At the conclusion of the evidence collection and prior to the distribution of the final investigation report, the investigator provides all parties with a preliminary investigation report that summarizes the relevant evidence gathered, evidence that is not disputed and facts that are disputed and access to any evidence obtained as part of the investigation, including the formal complaint and the investigation plan, that is directly related to the allegations raised in a formal complaint, including the evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and exculpatory evidence whether obtained from a party or other source.

Parties are provided with simultaneous access to the evidence in electronic format.  Neither the complainant nor the respondent (or their advisors) may print, copy, take photos or video of the screen, audio or video record a reading of the material, or otherwise use analog or technological methods - known or unknown - to capture the content of evidence provided for inspection and review. The parties and their advisors will be asked to execute an evidence sharing agreement that includes these restrictions. Any party who fails to abide by the terms of the evidence sharing agreement may be subject to disciplinary action, if available, and/or excluded from further participation in the process.

Parties will have ten (10) days to review and respond to the preliminary investigation report and the evidence provided by submitting any or all the following to the investigators:

• Written comments on the preliminary investigation report;
• written comments, corrections, or clarifications to any party or witness statement;
• request for the university to rely on particular evidence for specific reasons that may not be evident in the information;
• new information or evidence not already provided;
• submit questions that they believe should be directed by the Investigator to a party or to any witness;
• object to evidence that has been included or excluded as an exhibit to the preliminary investigation report;
• request for further investigation or evidence collection with regards to specific information (e.g. a specific witness not interviewed, or a specific detail not queried of a witness previously).

Any response provided by a party will be shared with the other party. Parties’ written responses to the preliminary investigation report and the evidence are not included as enclosures in the final investigation report.

Additional evidence submitted by a party or collected by the investigators after the response to the evidence review phase shall be provided to parties upon receipt by investigators. Parties will have three (3) additional days to review and respond to any additional evidence submitted or collected after the original evidence review phase.

In the absence of good cause, evidence that is reasonably available to the Parties that is not provided to the Investigator at this juncture will not be considered at the hearing or on any appeal.

E. Final Investigation Report

When the investigation is complete, the investigators will provide the Determination Official/Hearing Panel Chair, the parties and their advisors with a final investigation report summarizing the investigation process and the relevant evidence collected.  The report typically will:

• describe the alleged conduct investigated including the elements of each alleged policy violation;
• provide relevant information regarding the parties, key witnesses (if any), and other contextual matters such as locations or specific events;
• describe the investigation process, i.e., the witnesses interviewed and evidence collected
• include a timeline of events, if useful; relevant records, such as photographs, emails, text messages, or access records, and
• summarize the finding of fact and the corresponding evidence that supports it.

The final investigation report may include evidence of impact of the alleged conduct on the complainant, to the extent such evidence is relevant in determining whether the complainant was denied equal access to the university’s educational programs or activities. 

Law or policy requires protection for certain types of information, including information derived from medical records.  Redactions or summaries of relevant information may be made to ensure confidentiality in certain records. 

The final investigation report may include the investigators’ assessment of the credibility and strength of specific evidence.   

The parties have five (5) days to review and provide a written response to the final investigation report and enclosures. Parties may also submit with their response to the final investigation report a personal statement not to exceed 3,000 words, including any relevant information about personal circumstances to the Coordinator. Any written response or personal statement provided by a party will be shared with the Determination Official/Hearing Panel Chair and the other party.

VIII. Determination

A.   Method of Resolution

An Administrative Resolution is utilized when there is not a Level 1 (major) sanction that would potentially be imposed on a respondent for formal complaints involving prohibited conduct under Section IV of the Discrimination Policy.  Additional Level 3 sanctions may be imposed in addition to Level 2 sanction.

A Hearing Panel Resolution is required for all formal complaints involving prohibited conduct under Section IV of the Title IX Policy or formal complaints involving prohibited conduct under Section IV of the Discrimination Policy where a Level 1 (major) sanction is possible if there is a finding of responsibility.  

B.    Standard of Review

The Determination Official or the Hearing Panel is responsible for issuing a determination of whether the respondent violated university policy provisions established by the preponderance of the evidence.  Preponderance of the evidence means that it is more likely than not that the alleged conduct occurred and that the conduct constituted a violation of the prohibited conduct as defined in Section III of each of the Policies.

C.    Administrative Resolution

The Determination Official resolves alleged conduct that potentially violates Discrimination Policy provisions and that does not include a major sanction through an Administrative Resolution. Notification of Determination is provided to the parties within ten (10) days of receipt of the parties’ response to the final investigation report and/or personal statements.

In the Notification of Determination, the Determination Official either finds the respondent responsible for a policy violation or not responsible for policy violation based on the Final Investigation File, which consists of the final investigation report, report enclosures, parties’ written responses to the final investigation report, and parties’ personal statements, if any. A finding of not responsible for a policy violation may be appealed per Section IX of this policy. 

Upon the finding of responsibility of one or more policy violation(s), the Determination Official imposes a primary sanction (Level 1 or Level 2 sanction) one or more Level 3 sanctions. The finding of responsibility for a policy violation and/or the sanctions may be appealed by either party per Section IX.

Upon a finding that the conduct occurred as alleged but that it did not rise to a policy violation under the Title IX or Discrimination Policy, the Determination Official may refer the findings to the respondent’s supervisor for verbal or written counseling memo per Appendix A of this procedure.

D. Hearing Panel Resolution

The Hearing Panel resolves alleged conduct that potentially violates any Title IX Policy Provision and alleged conduct that potentially includes a Level 1 sanction through a Hearing Panel Resolution that includes a live hearing. The live hearing is not intended to be a courtroom-like process, nor is it intended to be adversarial in nature. 

The Provost designates a trained administrator to serve as Hearing Manager. The Hearing Manager assists in the conduct of the hearing, ensuring compliance with the procedure and adherence with the Rules of Decorum. 

Hearing Preparation

Parties are provided Notification of Hearing, which includes:

• The name and title of the trained administrator who is appointed as the Hearing Manager.
• The alleged conduct and policy provisions proceeding to hearing.
• The right to request witnesses’ participation at the hearing to the Hearing Manager within three (3) days of receipt of the notification.
  • Requests for witnesses who did not participate in the investigation must be justified by explaining the purpose and relevance of the witness and providing email and telephone contact information of the witness at the time of the request. 
• The right for the party’s advisor to directly ask relevant questions of any party or witness.
  • Questions for parties and witnesses must be submitted to the Hearing Manager at least 72 hours prior to the scheduled hearing.
  • The Chair of the Hearing Panel will review and determine relevancy for pre-submitted questions.
  • Follow up questions for parties and witnesses are permitted in the hearing, but each question must be vetted by the Chair and a determination of relevancy made prior to the party or witness answering the question.
• The right to suggest topics to be explored by the hearing panel, by submitting topics in writing to the Hearing Manager within three (3) days of the Determination Official’s notification.
• The right to request one postponement of the hearing, citing the reasons for the request in a written statement to the Hearing Manager at least 72 hours in advance of the hearing, except in the case of emergency. The party may be requested to provide supporting documentation of the need for delay. The Hearing Manager, in his or her discretion, may grant a postponement for good cause.

Empaneled Committee Members and Bias
All Hearing Panels consist of three (3) members and are conducted via Zoom or other video conference technology.  For a faculty respondent, the Hearing Panel members are selected from the standing Faculty Hearing Committee members, who are trained annually.  For a staff respondent, the Hearing Panel members are selected from university administrators or FHC members who are trained annually. The Chair of the FHC shall select three members of the FHC who are assigned to serve on the Hearing Panel and participate in the live hearing of a faculty respondent.  The empaneled FHC members shall select the Chair of the Hearing Panel.

The Coordinator shall select three university administrators who are assigned to serve on the Hearing Panel and participate in the live hearing of a staff respondent and shall designate the Chair of the Hearing Panel.

Hearing Panel members are required to disclose any personal or professional relationship with either party to the Chair upon appointment. Professional interactions with a party do not automatically constitute a conflict of interest for the Panel member.  Disclosures will be evaluated on a case-by-case basis with the Chair of the FHC and/or the Coordinator and the Hearing Manager. Any Panel member with a conflict of interest or bias shall be excused.

Hearing Logistics
The Hearing Panel members review the Final Investigation File.

The Hearing Manager sets a hearing time and date, and notifies the parties, advisors, and witnesses of the time, date, and names and titles of all potential participants and provides the teleconference link. The Hearing Manager provides confirmation of participants at least 48 hours prior to the hearing. The university will aim to hold the hearing within 15 days from receipt of the Notification of Hearing. Parties are given at least ten (10) days’ notice of the hearing date and time. 

The Hearing Manager conducts an optional pre-hearing meeting with each party and their advisor to review the process and the Rules of Decorum and to answer any procedural questions.

Questions for parties and witnesses submitted in advance by each party will be reviewed and approved for relevancy purposes by the Chair of the Hearing Panel.  The Hearing Manager will provide the Hearing Panel Chair’s determination of relevancy at least three (3) hours before the start of the hearing.

New evidence submitted by a party after the distribution of the final investigation report, including during live hearing, shall not be considered by the Determination Official/Hearing Panel in reaching its determination.  New evidence is permissible as a basis for appeal under Section IX.  The Chair of the Hearing Panel will prohibit the presentation new evidence during the live hearing either through direct questions to the parties or witnesses or through the party’s closing statement.

Hearing
Neither party is required to attend the hearing.

Live hearings are private and confidential. Parties and their advisors must be in a private space free from distraction and only the party, the advisor and the party’s silent supporter may be present in the room during the live hearing. Advisors and silent supporters may be present with the party during the hearing or may sign-in separately to the teleconference. Parties and advisors are required to have their camera turned on when speaking.

If a party’s advisor is not present at the live hearing, the Hearing Manager shall appoint a neutral third-party to ask questions of the parties and witnesses on the party’s behalf. The parties may not question each other directly.

The Hearing Panel members ask relevant questions to the parties and any witnesses, which may include the investigators.

The parties’ advisors are permitted to directly ask the other party and any witnesses all pre-approved questions and relevant follow-up questions, including questions that challenge the person’s credibility.

All persons who appear before the Hearing Panel, whether as parties to the proceedings or as witnesses, are expected to provide truthful and accurate information.

Parties are permitted to make a closing statement to the Hearing Panel that is no more than ten minutes in duration.

The live hearing will be recorded and provided to the parties within three (3) days of the conclusion of the live hearing.

Determination

The Hearing Panel determines by a preponderance of the evidence whether the conduct occurred as alleged, and if so, if the respondent violated one or more prohibited conduct provisions under Section IV of each of the Policies. The Hearing Panel deliberates in private.  The Hearing Panel makes its determination by a simple majority vote. 

Upon reaching a determination, the Hearing Panel chair issues a written Notification of Determination. The Hearing Panel either finds the respondent responsible for a policy violation or not responsible for a policy violation based on the full investigative record.  The full investigative record consists of the final investigation report, report enclosures, parties’ written responses to the final investigation report, parties’ personal statements provided, and the live hearing recording.

The Hearing Panel documents their determination, rationale and sanctions, if applicable, in the Notification of Determination. The Notification of Determination is communicated to the parties within five (5) days of the live hearing.

Upon a finding of responsibility for one or more policy violation(s), the Hearing Panel imposes a Level 1 or Level 2 sanction permissible under the Faculty Handbook or under UHR offense chart. The Hearing Panel may also impose one or more Level 3 sanctions.

Upon a finding that the conduct occurred as alleged but that it did not rise to a policy violation under the Title IX or Discrimination Policy, the Hearing Panel may refer the findings to the respondent’s supervisor for verbal or written counseling memo per Appendix A of this procedure.

Sanctions are intended to address the conduct and responsibility for violation of policy provision and to prevent future misconduct.  Sanctions may or may not be the action that the complainant requests or prefers.  Sanctions must be effective and fair.  The appropriate discipline will depend on the facts and circumstances of the case, including the nature and severity of the conduct, its impact on the campus community, other conduct by the respondent that violates the university policy or standards of conduct, any disciplinary history of the respondent, and other aggravating or mitigating factors.

The Hearing Panel recommends remedies to mitigate the impact of the violation of a policy provision and to ensure the complainant has equal access to the university educational programs and activities. Remedies may be specific to the complainant, such as revocation of an action determined to have been discriminatory, or may relate to a larger group or to the community as a whole, such policy revisions or outreach activities. OC&E is responsible for evaluating and coordinating with UHR any remedies that are granted. 

 

IX.  Appeal

The appeal is an objective, independent review designed primarily to detect any significant errors in the investigation or determination. The appeal is not a de novo review—the appellate officer does not review the case as if considering it for the first time. Instead, the appeal is made with deference to the determination and to investigators’ actions, such as decisions regarding relevance of evidence, within the scope of this procedure. Both parties have the right of appeal. The appellate officer reviews and decides all appeals. All information provided by a party during the appeal is shared with the other party.  

A.    Decisions Available for Appeal

Dismissal of a Formal Complaint. Parties may appeal any determination to dismiss under Section V (C)(2), V(C)3 or VII(C) of this procedure.

Determination of Responsibility or No Responsibility and/or Sanction. Either party may appeal the determination of the Determination Official or Hearing Panel and/or the sanction imposed to an appellate officer.  

B.    Appeal Grounds & Outcomes

Appeals for any of the above reasons must be based on the following grounds:

Material procedural error.  The appeal must specify the procedural provision that was violated and the impact of this violation; procedural or technical deviations that do not affect the outcome of the determination will not be sufficient to sustain an appeal.  Examples of procedural errors that may be sufficient to sustain an appeal include failure to provide a party with an opportunity to review all evidence, including exculpatory evidence collected, failure to provide a party to respond to the final investigation report or inclusion of polygraph results as evidence. If the appellate officer grants an appeal on the basis of procedural irregularity, they typically will remand the matter to remedy the irregularity, if appropriate. 

Weight of the evidence. In reviewing an appeal based on the Determination Official’s or Hearing Panel’s determination being inconsistent with the weight of the evidence, the appellate officer does not replace the Determination Official’s/Hearing Panel’s judgment with their own; they review the matter to determine whether the evidence presented appears sufficient to support a finding of responsibility or insufficient to support a finding of no responsibility by a preponderance of the evidence standard.  If the appellate officer grants an appeal on this basis, they may modify the determination or may order re-consideration by the Determination Official or Hearing Panel. 

New material evidence. New evidence that (a) is not merely corroborative or repetitive and (b) was previously unknown or unavailable to the party and pertinent to the case that affected the outcome of the determination may be considered by the appellate officer. The party must provide an explanation as to why the evidence was unknown or unavailable during the investigation.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Determination Official or Hearing Panel for re-consideration of the determination with the new evidence. 

Bias.  The Coordinator, investigator(s), Determination Official or Hearing Panel member 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. The appealing party must provide details or examples of why the individual had a conflict of interest or bias and how that conflict of interest or bias affected the outcome of the determination.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Coordinator for reassignment to a different investigator, Determination Official or Hearing Panel committee and to re-start the process at the stage in which the conflict of interest or bias impacted the determination. If the appellate officer determines that the Coordinator was found to have a conflict of interest or bias that affected the outcome of the case, the appellate officer will determine if the matter should be dismissed entirely or can be remanded for a fair and equitable outcome with another university administrator serving as the Coordinator. If the appellate officer is someone other than the Provost, the appellate officer shall make the decision of dismissal or remand in consultation with the Provost. 

C.     Appeal Process and Timeline

Appeals must be submitted to the Coordinator within five (5) days of the Determination Official’s or Hearing Panel’s issuance of the Notification of Determination. All appeals must be in writing and clearly cite the ground(s) for the appeal and include supporting evidence. Appeals are limited to 3500 words, unless an exception is granted by the Coordinator. The appeal is shared with the other party, who has the right to provide a written response to the appeal within three (3) days.  Written responses to the appeal are limited to 3500 words, unless an exception is granted to the appealing party by the Coordinator.

The Coordinator or designee submits the appeal, the response to the appeal, and the Final Investigation File to the appellate officer.

D.   Appellate Officer Determination

The appellate officer’s determination may be:

There is insufficient basis to grant the appeal. The decision to dismiss a formal complaint, the decision to refer one or more allegations to a Hearing, or Determination Official’s or Panel’s determination stands.

Substantial procedural error or Bias occurred that denied a party a fair process. The appellate officer may direct relief or may order a new investigation, a new hearing, or a new deliberation. The appellate officer may dismiss the formal complaint.  The decision to dismiss is not appealable.  

New evidence should be considered. The appellate officer may order a new review by the Determination Official or new deliberation by the Hearing Panel to consider the determination and rationale in light of the new evidence.

The panel’s determination was not supported by the evidence.  The appellate officer reviews the determination for clear error, including error in evaluation of the evidence. The appellate officer may modify the determination or may order a new hearing or re-submit the matter to the Hearing Panel to conduct a new deliberation.   

X.  Approval, Amendment & Interpretation 

This procedure replaces the procedure formerly included in the Faculty Handbook (Section III(F)(2)), and replaces the Discrimination Grievance/Complaint Procedure.  This procedure was approved by the President.    

The President has authorized the Provost, with the approval of the Faculty Assembly and the Personnel Policy Committee, to amend this procedure; provided that amendments relating solely to non-faculty employees or third parties do not require Faculty Assembly or Personnel Policy Committee approval.  The President has authorized the Compliance Officer, with notification to the Provost and the Faculty Assembly, to make minor, technical revisions to this procedure such as updates to office titles, references to other policies, appendices, or hyperlinks. 

Internal policies must comply with applicable law and no internal governance process (including those under the Faculty Handbook) should be understood to abrogate applicable state and federal law.

This procedure was approved as an interim procedure per the Creating and Maintaining Whole University Policies & Procedures by the President effective August 14, 2020, to comply with Department of Education amendments to part 106 of title 34 of the Code of Federal Regulations and to Code of Virginia Amendments to §23.1-900.

This procedure was amended by the Executive Vice President and Chief Operating Officer per the university’ Creating and Maintaining Policies & Procedures effective October 21, 2026. Substantive changes include expanded due process rights and procedural protections; two distinct pathways established for formal complaint resolutions – investigative resolution and mediated resolution; two distinct adjudication methods based on potential sanction level; standardized hearing procedures regardless of policy provision; revised sanction framework, and appeal logistics and timeframe.

This procedure shall be interpreted for consistency with other policies of the university (including its Discrimination Policy and Title IX Policy). In the event of a conflict, this procedure shall control. 

XI. Related Policies, Procedures & Other Documents

Appendix A: Sanctions

Appendix B: Substantive Changes to Procedure in 2026

Faculty Handbook

Policy Prohibiting Discrimination, Harassment, Retaliation and Sexual Misconduct

Policy Prohibiting Title IX Sexual Harassment and Pregnancy Discrimination

Creating and Maintaining Whole University Policies & Procedures

Appendix A: Sanctions

Faculty

The potential sanctions, specified in Section III(F) of the Faculty Handbook, are:

Level 1: Major Sanction

• Removal from a research project (including long-term disbarment), suspension of access to laboratories, or other reassignment of duties;
• Loss of office, travel funds, research funds, etc.;
• Denial of a pay increase;
• Reduction in rank, salary or loss of endowed chair;
• Probation;
• Suspension (administrative leave) with or without pay; or
• Dismissal

Level 2: Minor Sanction

• A letter of reprimand (written counseling) in personnel file for a finite number of years.
• A verbal warning not to repeat the offending conduct;

Level 3: Supplemental Sanctions

• Special monitoring of teaching or research;
• Separation of the parties involved, typically through a unilateral no-contact order;
• Required participation in an educational program (for example, about discrimination) or training;
• Removal or modification of supervisory responsibilities;
• Additional monitoring or supervision;
• Relocation of office or work location;
• Reassignment/transfer;
• Consideration of the violation in future awards, recognition, honors or opportunities for a finite number of years;
• Limitation or monitoring of relevant responsibilities or work activities.

Staff

Level 1 Sanctions: 

• Suspension without pay up to 30 days
• Demotion or transfer with disciplinary salary action of at least 5%
• Dismissal

Level 2 Sanctions:

• Suspension without pay up to 5 days and letter of reprimand (written counseling) in personnel file for a finite number of years.
• A letter of reprimand (written counseling) in personnel file for a finite number of years.

Level 3 Sanctions:

• A verbal warning not to repeat the offending conduct.
• Separation of the parties involved, typically through a unilateral no-contact order;
• Required participation in an educational program (for example, about discrimination) or training;
• Removal or modification of supervisory responsibilities;
• Additional monitoring or supervision;
• Relocation of office or work location;
• Reassignment/transfer;
• Consideration of the violation in future awards, recognition, honors or opportunities for finite number of years.

 

Appendix B: Substantive Changes to the Procedure in 2026

The 2026 draft transforms the procedure from a relatively traditional investigation/hearing model into a highly structured grievance process with expanded due process protections, formal mediation options, stronger complaint-screening procedures, standardized hearing requirements, tiered sanctions, and detailed timelines. The most consequential policy changes are the introduction of mediated resolution, the CRT-driven complaint authorization process, the new sanction-based adjudication model, and the substantially expanded procedural rights afforded to parties.

The 2026 revision represents a major restructuring and modernization of the process. The most significant changes are:

1. Creation of two resolution pathways: Mediated Resolution and Investigative Resolution.
2. Replacement of the Review Team with a Complaint Review Team (CRT) with a narrower, more defined gatekeeping role.
3. Much more prescriptive timelines and process management requirements.
4. Expanded due process protections and evidence review requirements.
5. New adjudication structure tied to sanction level, including mandatory hearings for Title IX matters and cases involving potential major sanctions.
6. Hearing process rewritten and standardized.
7. Sanction framework completely reorganized into Level 1, Level 2, and Level 3 sanctions.
8. Additional procedural rights, documentation requirements, and appeal procedures.