4.06 Sexual Harassment and Grievance Procedures

A.    Purpose

The purpose of this policy is the prohibition of all sexual harassment as defined by the Department of Education and to outline the steps that will be followed if there is a complaint and/or report of sexual harassment filed against a student, employee, visitor, guest, client, or third-party affiliate. To do so and to ensure compliance with federal and state civil rights laws and regulations, the college has developed internal policies and procedures as prescribed in this policy that provide a prompt, fair, and impartial process for those involved in allegations of harassment on the basis of sex.

B. Policy

The college is committed to providing a workplace and educational environment, as well as other benefits, programs, and activities that are free from discrimination, harassment, and retaliation.

In order to comply with Title IX of the Education Amendments of 1972 and its implementing regulations, the college prohibits discrimination and harassment based on sex in the college’s educational programs and activities over which it exercises substantial control within the United States. Title IX and its implementing regulations also prohibit retaliation for asserting claims of sex discrimination.

This policy applies to all college employees, students, applicants for employment, customers, third-parties, contractors, vendors, and all other persons that participate in the college’s educational programs and activities, including visitors on campus. The college’s prohibition on sexual harassment extends to all aspects of its educational programs and activities, including, but not limited to, admissions, employment, academics, housing, and student services.

C. Procedures

Sexual Harassment

Sexual harassment is considered a form of sexual discrimination under Title IX, and formal complaints of sexual harassment are subject to this grievance process when they are received by the Title IX coordinator and/or other individuals on campus with the authority to take corrective actions on behalf of the college. Those individuals/positions will be reviewed annually and communicated on the college’s website.

In order for a formal complaint of sexual harassment to be reviewed and/or resolved through the Title IX grievance process, it must consist of conduct that meets at least one of the following criteria:

  • A college employee conditioning the provision of an aid, benefit, or services of the college on an individuals’ participation in unwelcome sexual conduct;
  • Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the college’s educational program or activity;
  • “Sexual assault” as defined by the Jeanne Clery Act (20 USC § 1092(f)(6)(A)(v)), “dating violence”, “domestic violence” or “stalking” as defined by the Violence Against Women Act (34 USC § 12291(a)).

Jurisdiction

The Title IX grievance process is available when a formal complaint falls within the college’s Title IX jurisdiction. The Title IX jurisdiction includes locations, events or circumstances over which the college exercises substantial authority and control, and the sexual harassment occurs within the United States.

This policy does not apply to sexual harassment that occurs off-campus, in a private setting, and outside the scope of the college’s education programs and activities. Such conduct is prohibited by the Standards of Student Conduct if committed by a student, or other college policies and standards if committed by an employee. If a report alleges actions which fall outside of the scope and jurisdiction of this policy, the Title IX coordinator and the college will review the report under the standards of student conduct and employee code of conduct for resolution.

Regardless of the status of the complainant, when the respondent is a member of the college community, a grievance process through this policy or another college policy may be available.

Title IX coordinator

The college has designated a Title IX coordinator to coordinate its compliance with Title IX and to receive inquiries regarding Title IX, including complaints of sex discrimination.

The director of equity and compliance serves as the Title IX coordinator and ADA/504 Coordinator and oversees implementation of the college’s policy on equal opportunity, harassment, and nondiscrimination. The Title IX coordinator has the primary responsibility for coordinating the college’s efforts related to the intake, investigation, resolution, and implementation of investigations and supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this policy and policy 3.39.

The Title IX coordinator manages the Title IX team and acts with independence and authority free from bias and conflicts of interest. The Title IX coordinator oversees all resolutions under this policy and these procedures. The members of the Title IX team are vetted and trained to ensure they are not biased for or against any party in a specific case, for or against complainants and/or respondents, generally.

Additionally, the Title IX coordinator is responsible for ensuring the college’s policies relating to Title IX are made available to all current and prospective students, current and prospective employees, and the general public.

Complaints or notices of alleged policy violations, or inquiries about or concerns regarding this policy and procedures, may be made internally to:

Kevin Luebbering
Director of Equity and Compliance and Title IX coordinator
1001 E. Chestnut Expressway
Springfield, MO 65802
417-447-8188
luebberk@otc.edu

The college has also designated the following Deputy Title IX coordinator to assist the Title IX coordinator  in coordinating Title IX compliance when employees are involved and to receive inquiries regarding Title IX, including complaints of sex discrimination:

Ocki Haas
Chief Human Resources Officer
1001 E. Chestnut Expressway
Springfield, MO 65802
417-447-2631
haaso@otc.edu

Mandated Reporters
All college employees, except for those who are designated as confidential resources, are mandated reporters and must promptly share with the Title IX coordinator all known details of a report of sexual harassment made to them in the course of their employment.

Employees must promptly share all details of behaviors under this policy that they observe or have knowledge of, even if not reported to them by a complainant or third-party. Behaviors include actual knowledge or suspicion of sexual harassment suffered by an employee or student.

At the request of a complainant, notice may be given by a mandated reporter to the Title IX coordinator anonymously, without identification of the complainant. The mandated reporter cannot remain anonymous themselves.

If a complainant desires to talk confidentially, the college’s Counseling Services office can be contacted at (417) 447-6974 or by emailing counseling@otc.edu. Counseling Services will not report the circumstances without the complainant’s permission, unless otherwise required by law (such as when the victim is a minor). Notwithstanding, a non-identifying report may be made to the Title IX coordinator so that the college can identify any patterns of sexual misconduct on campus and, if the conduct is a crime, it can be included in the college’s annual crime statistics disclosure.

The college will maintain the confidentiality of all individuals who make a report or complaint of sex discrimination, who make a report or file a formal complaint of sexual harassment, any complainant, respondent, or witness participating in a Title IX grievance process, except as may be permitted by FERPA, or as required by law, or as required to conduct any investigation, hearing or other campus judicial arising from 34 CFR Part 106.

The grievance process is activated by the receipt of a complaint. Complaints may be filed in person at the college’s Title IX office, by email to the Title IX coordinator, or online by visiting https://students.the college.edu/title-ix/report-a-concern/

Formal Complaint

A complainant may file a formal complaint with the Title IX coordinator requesting that the college investigate and adjudicate a report of sexual harassment. In order to be considered a formal complaint, the complainant must be participating in, or attempting to participate in, one or more of the college’s education programs or activities at the time the complainant submits a complaint.

A complainant may file a formal complaint with the Title IX coordinator in person, by regular mail, or by email using the contact information specified above. No person may submit a formal complaint on the complainant’s behalf.

In any case, including a case where a complainant elects not to file a formal complaint, the Title IX coordinator may file a formal complaint on behalf of the college if doing so is not clearly unreasonable.  Such action will normally be taken in limited circumstances involving serious or repeated conduct or where the alleged perpetrator may pose a continuing threat to the college community. Factors the Title IX coordinator  may consider include (but are not limited to): (a) was a weapon involved in the incident; (b) were multiple assailants involved in the incident; (c) is the accused a repeat offender; (d) does the incident create a risk of occurring again; and (e) is there a danger posed to the college.

If the complainant or the Title IX coordinator files a formal complaint, then the college will commence an investigation as specified below and proceed to adjudicate the matter through hearing. In all cases where a formal complaint is filed, the complainant will be treated as a party, irrespective of the party’s level of participation.

In a case where the Title IX coordinator files a formal complaint, the Title IX coordinator will not act as a complainant or otherwise as a party for purposes of the investigation and adjudication processes.

The Title IX coordinator has the authority to consolidate formal complaints involving more than one complainant, or against more than one respondent, where the allegations of sexual harassment arise out of the same facts or circumstances.

Initial Assessment

Upon receipt of a report, the Title IX coordinator will conduct a preliminary assessment to determine:

  • Whether the conduct, as reported, falls or could fall within the scope of the policy;
  • Whether the conduct, as reported, constitutes or could constitute sexual harassment as defined in this policy.

If the Title IX coordinator determines that the conduct reported could not fall within the scope of the policy, and/or could not constitute sexual harassment, even if investigated, the Title Coordinator will close the matter and may notify the reporting party if doing so is consistent with the Family Educational Rights and Privacy Act (“FERPA”). The Title IX coordinator may refer the report to other college offices, as appropriate. If the Title IX coordinator determines more information is needed before making a determination as to whether the activity meets the jurisdiction or definitions of sexual harassment as outlined in this policy, the Title IX coordinator will contact the complainant for more information.

If the Title IX coordinator determines that the conduct reported could fall within the scope of the policy, and/or could constitute sexual harassment, if investigated, the Title IX coordinator will proceed to contact the complainant.

As part of the initial assessment, the Title IX coordinator may take investigative steps to determine the identity of the complainant, if such identity is not apparent from the report.

Contact the Complainant

Following receipt of notice of a complaint of an alleged violation of this policy, the Title IX coordinator will engage in an initial assessment. Receipt of notice does not constitute a formal complaint. The steps in an initial assessment can include:

  • Whether a formal complaint has been filed or not, the Title IX coordinator  reaches out to the complainant to offer confidential supportive measures, including but not limited to information on filing a formal complaint if one has not already been filed, the rights and responsibilities of a complainant throughout the grievance process, and the availability of informal resolution options.
  • The Title IX coordinator seeks to determine if the person prefers a supportive and remedial response, an informal resolution option, or a formal investigation and grievance process and provides assistance in whichever avenue they wish to pursue.
  • If a complainant does not wish to file a formal complaint and pursue a formal investigation and grievance process, or wishes to withdraw a formal complaint, the Title IX coordinator determines whether to initiate a complaint because a compelling threat to campus health and/or safety exists.

If a formal complaint has been filed, the Title IX coordinator is responsible for providing written notice to the respondent regarding all pertinent details of the complaint. In order to treat both parties equitably, the Title IX coordinator will meet with the respondent to provide advice for the following: availability of confidential supportive measures, availability of informal resolution options, assumption of non-responsibility throughout the grievance process, the rights and responsibilities of a respondent throughout the grievance process. Supportive measures may include: counseling, extensions of academic or other deadlines, course-related adjustments, modifications to work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. Supportive measures may also include mutual restrictions on contact between the parties implicated by a report.

Mandatory Dismissals
Complaints which do not meet the definition of sexual harassment included in this policy, or detail events which occurred outside of an educational program or activity within the United States, will be dismissed. However, such complaints may be subject to review and/or resolution under other college grievance polices in accordance with Title VII for employees and standards of student conduct. Both the complainant and respondent will be notified, in writing, of the dismissal decision by the Title IX coordinator.

Discretionary Dismissals
Complaints may be dismissed at the discretion of the Title IX coordinator  if a complainant communicates in writing their desire to withdraw the formal complaint and allegations within, the respondent is no longer under the control or authority of the college, or in situations when gathering evidence sufficient to make a determination is not possible. Both the complainant and respondent will be notified, in writing, of the dismissal decision by the Title IX coordinator.

Informal Resolution
At any time after the parties are provided written notice of the formal complaint as specified above, 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 the goal of which is to enter into a final resolution resolving the allegations raised in the formal complaint by agreement of the parties.

An informal resolution to a formal complaint of sexual harassment can be reached when the complainant and respondent are equally and voluntarily agreeable to reaching a resolution without a full investigation or live hearing. The option of resolving a formal complaint through informal resolution will be offered to both parties by the Title IX coordinator at the initial assessment meetings. However, the decision to stop formal proceedings and engage in an informal resolution may be made at any time during the grievance process, with the voluntary, written consent of both parties. Likewise, the parties have the right to withdraw from an informal resolution process and resume the Title IX grievance process at any time with respect to the formal complaint.

The specific manner of any informal resolution process will be determined by the parties and the Title IX coordinator, in consultation together. Prior to commencing the informal resolution process agreed upon, the Title IX coordinator will transmit a written notice to the parties that:

  • Describes the parameters and requirements of the informal resolution process to be utilized;
  • Identifies the individual responsible for facilitating the informal resolution (who may be the Title IX coordinator, another college official, or a suitable third-party);
  • Explains the effect of participating in informal resolution and/or reaching a final resolution will have on a party’s ability to resume the investigation and adjudication of the allegations at issue in the formal complaint; and
  • Explains any other consequence resulting from participation in the informal resolution process, including a description of records that will be generated, maintained, and/or shared.

Informal resolution can include but is not limited to the following three approaches:

  • When the parties agree to resolve the matter through an alternate resolution mechanism (including mediation, restorative practices, etc.);
  • When the respondent accepts responsibility for violating policy, and desires to accept a sanction and end the resolution process; or
  • When the Title IX coordinator resolves the matter informally by providing supportive measures to remedy the situation.

Participation in an informal resolution process in lieu of the full investigation and live hearing associated with the Title IX grievance process shall not be a condition of enrollment or continuing enrollment, employment or continuing employment, or waiver of the right to an investigation and live hearing of the formal complaint.

An informal resolution process is not allowed in regards to formal complaints of sexual harassment of a student by an employee and is not appropriate in all cases.

Assignment of Investigator(s)
At the filing of a formal complaint, a reasonably prompt, fair and impartial investigation will commence. This process may be paused while informal resolution options are pursued. The Title IX coordinator will assign investigators who are free from conflicts of interest, or bias for or against either party. The investigators may be members of the college community, or the duties may be delegated to outside personnel. The number of investigators assigned is at the discretion of the Title IX coordinator. The investigators will meet with both parties individually, to engage in the objective collection of relevant evidence. Both parties are entitled to the identification of witnesses and submission of inculpatory and exculpatory evidence.

The Title IX coordinator will vet the assigned Investigator(s) to ensure impartiality by ensuring there are no actual or apparent conflicts of interest or disqualifying biases. The parties may, at any time during the resolution process, raise a concern regarding bias or conflict of interest of the investigators, and the Title IX coordinator will determine whether the concern is reasonable and supportable. If bias or a conflict of interest is found to have emerged, the Title IX coordinator will reassign an investigator and any impact of the bias or conflict will be remedied accordingly.

The burden of proof and the burden for gathering sufficient evidence to reach a determination of responsibility for sexual harassment rests with the college.

The college operates with the presumption that the respondent is not responsible for the reported misconduct unless and until the respondent is determined to be responsible for a policy violation by a preponderance of the evidence as defined below.

Investigation Timeline

Investigations are completed expeditiously, though some investigations may take weeks or even months, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, etc. Although the length of each investigation may vary depending on the totality of the circumstances, the college strives to complete each investigation within thirty (30) to forty-five (45) days of the transmittal of the written notice of formal complaint.

The college will make a good faith effort to complete investigations as promptly as circumstances permit and will communicate regularly with the parties to update them on any delays.

The college may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include but are not limited to: a request from law enforcement to temporarily delay the investigation, the need for language assistance if an interpreter is needed, the absence of parties and/or witnesses, and/or accommodations for disabilities or health conditions.

The college will communicate in writing the anticipated duration of the delay and reason to the parties and provide the parties with status updates if necessary. The college will promptly resume its investigation and resolution process as soon as feasible. During such a delay, the college will implement supportive measures as deemed appropriate.

The college action(s) are not typically altered or precluded on the grounds that civil or criminal charges involving the underlying incident(s) have been filed or that criminal charges have been dismissed or reduced.

The investigation is a party’s opportunity to present testimonial and other evidence that the party believes is relevant to resolution of the allegations in the formal complaint.  During the investigation, the investigator will provide an equal opportunity for the parties to be interviewed, to present witnesses (including fact and expert witnesses), and to present other inculpatory and exculpatory evidence. Notwithstanding the foregoing, 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 at issue, or if the witnesses are offered to render testimony that is categorically inadmissible, such as testimony 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.

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.

Grievance Process Advisors
Both parties have equal rights to engage the assistance of a grievance process advisor of their choosing during any meeting or proceeding including the investigation and live hearing. If either party is not able to identify an advisor of their choice, a trained Title IX grievance process advisor will be appointed by the Title IX coordinator to assist them during the live hearing at no cost to the individual. The presence of such a grievance process advisor, either self-selected or college-appointed, is required on behalf of both parties to conduct cross examination during the live hearing. At no time will a party be allowed to conduct cross examination of witnesses or the other party personally.

The college places no restriction on the choice or presence of a self-selected grievance process advisor for either party. However, any and all individuals serving as an advisor (either self-selected or college-appointed) will be required to adhere to rules of decorum as outlined and communicated by the Title IX coordinator. Failure to comply with the rules of decorum could result in delays in the grievance process or removal from the role of advisor.

Except for the questioning of witnesses during the hearing specified below, the advisor will play a passive role and is not permitted to communicate on behalf of a party, insist that communication flow through the advisor, or communicate with the college about the matter without the party being included in the communication. In the event a party’s advisor of choice engages in material violation of the parameters specified in this policy, the college may preclude the advisor from further participation, in which case the party may select a new advisor of their choice.

Review of Evidence and Comment Period

At the conclusion of the evidence-gathering phase of the investigation, but prior to the completion of the investigation report, the Investigating Officer will transmit to each party and their advisor, in either electronic or hard copy form, all evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including evidence the college may choose not to rely on at any hearing and inculpatory or exculpatory evidence whether obtained from a party or some other source. Thereafter, the parties will have ten (10) days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.

The parties and their advisors are permitted to review the evidence solely for the purposes of this grievance process and may not photograph or disseminate the evidence to the public.

Review of Investigation Report

After the period for the parties to provide any written response has expired, the investigator will complete a 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 transmit a copy to the Title IX coordinator. The Title IX coordinator will transmit the investigation report to each party and their advisor, in either electronic or hard copy form.Live Hearing and Cross Examination
The default process for adjudicating formal complaints is the hearing process outlined in this section. The hearing process will be used to adjudicate all formal complaints unless both parties timely consent to administrative adjudication or informal resolution.

At the conclusion of the review of the investigation report, a live hearing will be conducted by a hearing officer(s) in order to reach a final determination of responsibility for the allegations in the formal complaint at the conclusion of the hearing process. The hearing officer may be a contractor or a member of the professional/administrative staff of the college, and will participate in ongoing training with regards to their role in the grievance process. The Title IX coordinator will ensure that the hearing officer is provided a copy of the investigation report and a copy of all evidence transmitted to the parties by the investigator.

Hearing Notice and Response to the Investigation Report

The hearing officer will transmit notice to the parties setting a deadline for parties to submit any written response to the investigation report and setting a date for the pre-hearing conference and a date of the hearing.

A party’s written response to the investigation report must include:

  • To the extent the party disagrees with the investigation report, any argument or commentary regarding such 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 party contends should be requested to attend the hearing pursuant to an attendance notice issued by the hearing officer;
  • A list of any witnesses that the party intends to bring to the hearing without an attendance notice issued by the hearing officer;
  • Any objection that the party has to the college’s hearing procedures;
  • Any request that the parties be separated physically during the pre-hearing meeting and/or hearing;
  • Any other accommodations that the party seeks with respect to the pre-hearing meeting and/or hearing;
  • The name and contact information of the advisor who will accompany the party at the pre-hearing meeting and hearing;
  • If the party does not have an advisor who will accompany the party at the hearing, a request that the college provide an advisor for purposes of conducting questioning.

A party’s written response to the investigation report may also include:

  • Argument regarding whether any of the allegations in the formal complaint are supported by a preponderance of the evidence; and
  • Argument regarding whether any of the allegations in the formal complaint constitute sexual harassment.

The parties will be given a list of the name(s) of hearing officer(s) at least five (5) business days in advance of the hearing. All objections to any hearing officer(s) must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX coordinator as soon as possible and no later than one day prior to the hearing. Hearing officers will only be removed if the Title IX coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).

The hearing officer may convene a pre-hearing meeting(s) with the parties and/or their advisors to invite them to submit the questions or topics they (the parties and/or their advisors) wish to ask or discuss at the hearing, so that the hearing officer can rule on their relevance ahead of time to provide recommendations for more appropriate phrasing. The topics that will be discussed by the hearing officer may include but are not limited to:

  • hearing procedures with the parties;
  • address matters raised in the parties’ written responses to the investigation report, as the hearing officer deems appropriate;
  • discuss whether any stipulations may be made to expedite the hearing;
  • discuss the witnesses the parties have 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 hearing officer determines, in the hearing officer’s discretion, should be resolved before the hearing.

The pre-hearing meeting will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the pre-hearing meeting will be conducted with the hearing officer, the parties, the advisors, and other necessary college personnel together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio. However, this advance review opportunity does not preclude the advisors from asking at the hearing for a reconsideration based on any new information or testimony offered at the hearing. It further does not prohibit advisors from asking previously undiscussed but relevant questions. The hearing officer must document and share their rationale for any exclusion of questioning or evidence at this pre-hearing meeting. At the pre-hearing meeting, the parties may come to an agreement in writing on the relevance of any evidence at the hearing or the need to hear relevant witnesses live. If the parties agree, statements of witnesses may be allowed without the need for live testimony from the witness. No evidence will be considered at the live hearing which was not introduced previously during the investigation and summarized in the investigative report for review.

After the pre-hearing meeting, the hearing officer will transmit notices of attendance to any college employee (including administrator, faculty, or staff) or student whose attendance is requested at the hearing as a witness. The notice will advise the subject of the specified date and time of the hearing and advise the subject to contact the hearing officer immediately if there is a material and unavoidable conflict.

The subject of an attendance notice should notify any manager, faculty member, coach, or other supervisor, as necessary, if attendance at the hearing will conflict with job duties, classes, or other obligations. All such managers, faculty members, coaches, and other supervisors are required to excuse the subject of the obligation, or provide some other accommodation, so that the subject may attend the hearing as specified in the notice.

The college will not issue a notice of attendance to any witness who is not an employee or a student.

The live hearing may be conducted in one room at any of the college’s campuses or centers, or may be conducted through video conferencing technology when the presence of the complainant and respondent in the same room is not reasonable, feasible, or if such arrangements are requested by either party. Live hearings conducted virtually must ensure that all parties can simultaneously see and hear each other. Disability-related accommodations relating to participation in a live hearing will be coordinated with the Disability Support Office. An audio or audiovisual recording of the live hearing will be made available equally to both parties.

While the hearing procedures and rulings from the hearing officer will govern the particulars of the hearing, each hearing will include, at a minimum:

 

  • Opportunity for each party to address the hearing officer directly and to respond to questions posed by the hearing officer;
  • Opportunity for each party’s advisor to ask directly, orally, and in real time, relevant questions, and follow up questions, of the other party and any witnesses, including questions that support or challenge credibility;
  • Opportunity for each party to raise contemporaneous objections to testimonial or non-testimonial evidence and to have such objections ruled on by the hearing officer and a reason for the ruling provided;
  • Opportunity for each party to submit evidence that the party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect;
  • Opportunity for each party to make a brief closing argument.

During the live hearing, each advisor will ask relevant questions directly to the other party and/or witnesses, including follow-up questions and those challenging credibility. Any question asked that was not previously approved by the hearing officer during the pre-hearing meeting will be considered for its relevance by the hearing officer prior to the witness or party answering said question. Any question the hearing officer finds not to be relevant will not require an answer from the party or witness being questioned and the hearing officer is to provide their rationale for withdrawing the question in writing.

The hearing officer will not consider or otherwise rely on statements from any individual who does not participate in the live hearing or who refuses to submit to cross examination. Additionally, the hearing officer cannot reach a determination of responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to submit to cross examination. Notwithstanding the foregoing, the hearing officer may consider the testimony of any party or witness, whether given during the investigation or during the hearing, if the parties jointly stipulate that the testimony may be considered or in the case where neither party requested attendance of the witness at the hearing.

Treatment Records and Other Privileged Information

During the investigation and adjudication processes, the investigator and adjudicator, as the case may be, are not permitted to access, consider, disclose, permit questioning concerning, or otherwise use, unless the college has obtained the party’s voluntary, written consent to do so for the purposes of the investigation and adjudication process:

  • ·                       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;

Notwithstanding the foregoing, the investigator and/or adjudicator, as the case may be, may consider any such records or information otherwise covered by this section if the party holding the privilege affirmatively discloses the records or information to support their allegation or defense, as the case may be.

Sexual History

During the investigation and adjudication processes, questioning regarding a complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged, 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.  Notwithstanding the foregoing, a complainant who affirmatively uses information otherwise considered irrelevant for the purpose of supporting the complainant’s allegations, may be deemed to have waived the protections of this section.

Final Determination and Remedies

After a thorough examination of the evidence and after the hearing is complete, the hearing officer will utilize the preponderance of the evidence burden of proof standard in making a final determination as to whether it is more likely than not that a violation of this policy occurred as alleged in the formal complaint.  The hearing officer 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 officer will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference or during the hearing.

The hearing officer is responsible for drafting a final determination letter, outlining the rationale for their decision. The letter will be distributed simultaneously to both parties by the Title IX coordinator. In addition to details relating to the allegations constituting sexual harassment, procedural steps, findings of fact, conclusions and rationale, the final determination letter will include the range of sanctions to be decided upon and administered by the proper disciplinary office (i.e. if the respondent is a student, the dean of students will decide disciplinary sanction(s) while the chief human resources officer will decide and administer employment sanctions). It is the responsibility of the appropriate campus or center administrator to enforce disciplinary sanctions and the responsibility of the Title IX coordinator to provide effective implementation of any remedies as needed.

Factors considered when determining a sanction/responsive action may include, but are not limited to:

  • The nature, severity of, and circumstances surrounding the violation(s)
  • The respondent’s disciplinary history
  • Previous allegations or allegations involving similar conduct
  • The need for sanctions/responsive actions to bring an end to the discrimination, harassment, and/or retaliation
  • The need for sanctions/responsive actions to prevent the future recurrence of discrimination, harassment, and/or retaliation
  • The need to remedy the effects of the discrimination, harassment, and/or retaliation on the complainant and the college community
  • The impact on the parties
  • Any other information deemed relevant by the decision-maker(s)

To ensure the safety of either party the sanctions will be enforced as soon as is feasible. However, all parties will have the ability to appeal, and no sanctions will infringe on either party’s ability to appeal.

The sanctions described in this policy are not exclusive of, and may be in addition to, other actions taken or sanctions imposed by external authorities.

Possible Student Sanctions

The following are the customary sanctions that may be imposed upon students or organizations singly or in combination:

  • Warning: A formal statement that the conduct was unacceptable and a warning that further violation of any college policy, procedure, or directive may result in more severe sanctions/responsive actions.
  • Required Counseling: A mandate to meet with and engage in either the college -sponsored or external counseling to better comprehend the misconduct and its effects.
  • Probation: A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the student or organization is found in violation of any institutional policy, procedure, or directive within a specified period of time. Terms of the probation will be articulated and may include denial of specified social privileges, exclusion from co-curricular activities, exclusion from designated areas of campus, no-contact orders, and/or other measures deemed appropriate.
  • Suspension: Termination of student status for a definite period of time not to exceed two years and/or until specific criteria are met. Students who return from suspension are automatically placed on probation through the remainder of their tenure as a student at the college.
  • Expulsion: Permanent termination of student status and revocation of rights to be on campus for any reason or to attend the college-sponsored events.
  • Withholding Diploma: the college may withhold a student’s diploma for a specified period of time and/or deny a student participation in commencement activities if the student has an allegation pending or as a sanction if the student is found responsible for an alleged violation.
  • Revocation of Degree: the college reserves the right to revoke a degree previously awarded from the college for fraud, misrepresentation, and/or other violation of college policies, procedures, or directives in obtaining the degree, or for other serious violations committed by a student prior to graduation.
  • Organizational Sanctions: Deactivation, loss of recognition, loss of some or all privileges (including the college registration) for a specified period of time.
  • Other Actions: In addition to or in place of the above sanctions, the college may assign any other sanctions as deemed appropriate.

Possible Employee Sanctions

Responsive actions for an employee who has engaged in harassment, discrimination, and/or retaliation include:

  • Warning – Verbal or Written
  • Performance Improvement/Management Process
  • Required Counseling
  • Required Training or Education
  • Probation
  • Loss of Annual Pay Increase
  • Loss of Oversight or Supervisory Responsibility
  • Demotion
  • Suspension with pay
  • Suspension without pay
  • Termination
  • Other Actions: In addition to or in place of the above sanctions, the college may assign any other sanctions as deemed appropriate.

Appeals of Final Determinations and Dismissals

All appeals of findings of responsibility, non-responsibility, disciplinary sanctions, and dismissal of complaints involving student respondents are handled in accordance with Student Discipline and Appeals detailed in policy 5.16. All appeals involving employee respondents are to be made pursuant to appropriate Employee Disciplinary policy. Appeals may be made on the following grounds only:

  • New information that alters the finding and was not reasonably available at the time of issuance of the written decision;
  • A procedural error that unfairly and materially affected the outcome of the investigation;
  • The sanction imposed is excessive or disproportionate to the offense(s); and/or
  • Conflict of interest or bias on the part of the person(s) who participates in the preparation and/or completion of the written decision

Emergency Removals
In limited situations, the Title IX coordinator may remove a respondent from the college on an emergency basis because they pose an immediate threat to the college community, or cannot otherwise safely participate in an educational program or activity while the sexual harassment grievance process is being conducted. In cooperation with the college’s Behavioral Intervention Team (BIT), an individualized risk/threat assessment will be conducted to determine whether an immediate physical threat to the health or safety of the respondent or the college community arising from the formal sexual harassment complaint would justify removal from campus. When the determination for an emergency removal is reached, the Title IX coordinator must provide the respondent with written notice of the decision and an opportunity for an expedited appeal of the determination.

A non-student employee may be removed from campus for any part, or the full duration of, the Title IX grievance process through administrative leave in cooperation with the chief human resources officer. No risk/threat assessment is required in these circumstances.

Retaliation
No person having made a report or formal complaint, participated in or refused participation in any part of the Title IX grievance process should be subjected to intimidation, threats, coercion, or discrimination for the purpose of interfering with any right or privilege secured by Title IX. Such conduct is strictly prohibited and will be subject to review and/or resolution under other college policies.

Exercising rights protected under the First Amendment alone does not constitute retaliation. Complaints of retaliation arising from a Title IX grievance process may be reported directly to the Title IX coordinator or through the college’s secure web-based reporting platform.

Grievance Process Personnel Training
The Title IX coordinator is responsible for ensuring ongoing training for all college personnel or contractors associated with the Title IX grievance process, including investigators, advisors, hearing officers and appellate officers. Such training may be conducted internally or through organizations and agencies outside the college, and includes all policies and practices associated with the college’s Title IX grievance process, best practices in investigative and hearing panel processes, determining credibility and relevance, impartiality and implicit bias, updated guidance relating to Title IX, among other topics. The college will retain all materials used to train Title IX grievance process personnel for no less than seven years and provide those materials on its website.

Retention of Title IX Grievance Process Files
The college will maintain electronic copies of the following documents/records relating to formal complaints of sexual harassment for no less than seven years:

  • Investigation reports and evidence gathered;
  • Audio or audiovisual recordings of live hearings;
  • Final determination letters and disciplinary sanctions imposed on the respondent;
  • Remedies provided to the complainant in order to restore or preserve equal access to the college education program or activity;
  • Any appeal and the determination;
  • Informal resolutions agreements;
  • Supportive measures offered in response to a report or formal complaint of sexual harassment;
  • Written basis for the conclusion that the college was not deliberately indifferent in its response to reports or formal complaints of sexual harassment.

D.    Definitions

Student are all persons taking courses with Ozarks Technical Community College, for college credit or non-credit, for continuing education, personal development, adult education and literacy or professional development, whether or not pursuing any degree or program offered by Ozarks Technical Community College. The college has jurisdiction for disciplinary purposes over persons who were enrolled students at the time they allegedly violated the Standards of Student Conduct. Individuals who withdraw after allegedly violating the Standards of Student Conduct, who are not officially enrolled for a particular term but who have a continuing relationship with the college, or who have been notified of their acceptance for admission are considered students under this policy

Advisor is a person chosen by a party or appointed by the institution to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct cross-examination for the party at the hearing, if any.

Appellate Officer is an individual who hears and decides appeals of dismissals, findings, and sanctions made in accordance with this policy.

College Community includes students, faculty and staff of the college, the Board of Trustees, visitors, contractors and consultants performing work or services on college owned or leased properties and all other invitees of the college.

Complainant is an individual who is alleged to be the victim of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.

Confidential Resource is an employee who is not a mandated reporter of notice of harassment, discrimination, and/or retaliation (irrespective of Clery Act Campus Security Authority status).

Consent is an affirmative agreement through clear actions or words to engage in intimate activity. A person who is incapacitated unconscious, unaware, or otherwise physically helpless cannot give effective consent to sexual activity. One who is coerced, a minor, incapacitated due to disability, intoxicated, under the influence of drugs, or asleep cannot give effective consent.

  • Consent is active, not passive.
  • Silence, in and of itself, cannot be interpreted as consent.
  • Previous relationships or prior consent cannot imply consent to future sexual acts.
  • Consent can be withdrawn once given, as long as that withdrawal is clearly communicated.

Educational program or activity are locations, events, or circumstances where the college exercises substantial control over both the respondent and the context in which the sexual harassment or discrimination occurs and includes any building owned or controlled by a student organization that is officially recognized by the college.

Exculpatory evidence is evidence which exonerates an individual for a college policy violation.

Finding is a conclusion by the standard of proof that the conduct did or did not occur as alleged.

Formal Complaint is a document filed/signed by a complainant or signed by the Title IX coordinator alleging harassment or discrimination based on a protected class or retaliation for engaging in a protected activity against a respondent and requesting that the college investigate the allegation.

Formal Grievance Process/Title IX Grievance Process is a method of formal resolution designated by the college to address conduct that falls within the policies included below, and which complies with the requirements of 34 CFR Part 106.45.

Hearing Officer/Decision-Maker are those who have decision-making and sanctioning authority within the college’s formal grievance process.

Inculpatory evidence is evidence that implicates an individual with responsibility for a college policy violation.

Investigator is the person or persons charged by the college with gathering facts about an alleged violation of this policy, assessing relevance and credibility, synthesizing the evidence, and compiling this information into an investigation report and file of directly related evidence.

Mandated Reporters are employees of the college who are obligated by policy to share knowledge, notice, and/or reports of harassment, discrimination, and/or retaliation.

Notice is when an employee, student, or third-party informs the Title IX coordinator or other college official with authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.

Parties mean the complainant(s) and respondent(s), collectively.

Preponderance of Evidence is the burden of proof utilized in all college investigations. Burden is met when it is more likely than not that a policy violation occurred.

Remedies are post-finding actions directed to the complainant and/or the college community as mechanisms to address safety, prevent recurrence, and restore access to the college’s educational program.

Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.

Resolution is the result of an informal or formal grievance process.

Sanctions are a consequence imposed by the college on a respondent who is found to have violated this policy.

Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

(i) A college employee conditions education benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);

a. Quid Pro Quo: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a person having power or authority over another constitutes sexual harassment when submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational [or employment] progress, development, or performance; This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational [or employment] program.

(ii) Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the college’s educational program or activity;

(iii) Sexual assault as defined in the Clery Act, and dating violence, domestic violence, or stalking as defined in the Violence against Women Act (VAWA).

a. Dating Violence/Intimate Partner Violence (IPV): Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the complainant’s statement and with consideration of the length of relationship, the type of the relationship, and the frequency of the interaction between the persons involved in the relationship.

b. Domestic Violence: A felony or misdemeanor crime of violence committed

i. By a current or former spouse or intimate partner of the victim;

ii. By a person with whom the victim shares a child in common;

iii. By a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;

iv. By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred;

v. By any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.

c. Sexual Assault: Any nonconsensual sexual act proscribed by Federal, Tribal, or State law, including when the victim lacks capacity to consent. Sexual assault includes rape, sodomy, sexual contact such as touching or fondling, sexual assault with an object, incest, statutory rape, and the forced performance of sexual acts involving bodily contact between the parties.

i. “Rape” is the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.  There is “carnal knowledge” if there is the slightest penetration of the vagina or anus by the sex organ of the other person.  Attempted rape is included.

ii. “Sodomy” is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

iii. “Sexual assault with an object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.  An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.

iv. “Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

v. “Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Missouri law.

vi. “Statutory rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Missouri law.

d. Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others or suffer substantial emotional distress. A course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates.

i. Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

ii. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily require, medical or other professional treatment or counseling. Examples of stalking include, but are not limited to:

iii. Sending unsolicited or unwanted letters or emails.

iv. Showing up at places without a legitimate reason.

v. Following, spying, or waiting at places the victim.

vi. Leaving unwanted items, presents, or flowers.

Supportive measures are non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to the college’s educational programs and activities without unreasonably burdening another party, including measures designed to protect the safety of all parties implicated by a report or the college’s education environment, or to deter sexual harassment.

Title IX coordinator is at least one official designated by the college to ensure compliance with Title IX and the college’s Title IX program.

E.    Authority

This policy and these procedures are maintained under the authority of the vice chancellor for administrative services, chief human resources officer, and the vice chancellor of student affairs

F.    Related Policies

3.03 –Sexual Harassment Prevention Training

3.32 – Disciplinary Action, Suspension and Dismissal

3.33 – Dismissal Procedure

3.34 – Suspension Procedure

3.36 – Employee Grievance

3.39 – Anti-Harassment and Anti-Discrimination

5.15 – Standards of Student Conduct

5.16 – Student Discipline and Appeals

G.    Implementation

Purpose, Procedures, Definitions, Authority and Related Policies approved and adopted by the Chancellor’s Cabinet on 2/24/2009; revised on 6/17/2012, 5/11/2015, and 07/28/2020.

Policy approved and adopted by the Board of Trustees on 9/2/2001; revised on 4/10/2005, 11/17/2015, and 08/10/2020.

Set for review and every year.