5.9 Resolution Through the Formal Procedures
Although use of the informal process is not required, the formal procedures are ordinarily used only if informal resolution is not agreed upon or fails to resolve a concern satisfactorily, or if the matter involves allegations of Title IX Sexual Harassment by a student, or involves allegations of Rape, Sexual Assault, or Sexual Imposition by any Complainant, or is otherwise so serious as to warrant an immediate use of the formal procedures. Disciplinary action will result from a finding of responsibility under the formal procedures.
The formal process for resolving a complaint should proceed using the timelines given below. The Affirmative Action Officer, in their sole discretion, may adjust any time periods as necessary to promote the proper resolution of each complaint. Time periods governing the conduct and participation of reporting parties or responding parties shall be strictly enforced, unless specifically adjusted by the Affirmative Action Officer, in their sole discretion. All other time periods shall be guidelines, and though it is important to act promptly, strict adherence to these guidelines may not be possible in some or many instances.
For purposes of Sections 5.7 - 5.10, one business day shall be any weekday school is in session, according to the University's academic calendar, including the fall, spring and summer semesters.
5.9.1. Pre-Hearing, Pre-Mediation Procedure
- Within seven business days of the determination to address a complaint using the formal procedures, the Affirmative Action Officer will provide the Respondent with a copy of the complaint. The Respondent may submit a written response to the charges of harassment to the Affirmative Action Officer within ten business days of the date the copy of the complaint was sent to the Respondent. Upon receipt of an answer by the Respondent, the Affirmative Action Officer will forward a copy of the response to the complainant. A complaint requiring use of the formal process will be resolved either through mediation or by a formal hearing. Mediation is not appropriate and will not be offered in matters involving allegations of Title IX Sexual Harassment by a student or in allegations of Rape, Sexual Assault, or Sexual Imposition by any individual under Xavier’s Interpersonal Violence policies, or in cases of complaints alleging conduct so serious as to warrant an immediate use of the formal procedures. The Affirmative Action Officer has sole discretion to determine whether the alleged conduct is so serious as to warrant immediate use of a formal hearing. In such matters, formal hearing procedures will be initiated promptly.
- The Complainant and Respondent have five business days from when they receive written notice from the Affirmative Action Officer that the formal procedures will be initiated to indicate to the Affirmative Action Officer in writing the procedure (mediation or a formal hearing) that they wish to use to resolve the complaint.
- If either the Complainant or the Respondent or both request a formal hearing, the formal hearing procedures will be initiated after the conclusion of the five day period.
- If neither party requests a formal hearing within the five business days and mediation is allowable under the terms of this HCAP, the Affirmative Action Officer will notify the Complainant and Respondent that meditation will be initiated at the conclusion of the five day period.
- The Affirmative Action Officer will designate a mediator within ten business days of receipt of such request.
5.9.2. Mediation of a Complaint
- The mediator will schedule a meeting with each of the parties, together or separately, to attempt to negotiate a settlement of the complaint. If a resolution is not reached within ten business days of the initial meeting, the Affirmative Action Officer will inform both parties in writing that either may seek a resolution of the complaint by a formal hearing.
- Upon request by the Complainant, the Affirmative Action Officer may provide for the Mediator's consideration, information regarding any conduct admitted to by the responding party while attempting to resolve, or in resolution of this or any other complaint filed by the same Complainant against the same Respondent.
- A settlement occurs when the parties agree in writing to a resolution of the complaint. A resolution may include, but is not limited to, withdrawal of the complaint without the right to re- file it; an agreement by the Respondent to terminate or not repeat specific conduct; an apology; and/or participation in counseling. The Affirmative Action Officer reviews all resolutions so that the parties are fully informed of the terms. If there is any sanction agreed to as part of the resolution, the official responsible for implementing any such sanction must also agree to the resolution in writing. Resolution need not imply an admission of violation on the part of the Respondent.
- Whether or not a settlement is reached, all information and documentation used in the mediation that is not otherwise available under other provisions of this HCAP will remain confidential and may not be used in any future proceedings involving the same or different parties. However, the fact that a complaint was filed and a settlement was reached through mediation may be used by the Affirmative Action Officer in a future formal proceeding brought by the same or a different Complainant against the same Respondent, as described in Section 5.8.3. or Section 5.9.
5.9.3. Initiation of the Formal Hearing Process
- A formal hearing process is initiated 1) once the Affirmative Action Officer has been notified by either the Complainant or Respondent or both of their desire to proceed with a formal hearing; 2) instances in which where mediation is not permitted; 3) where mediation was attempted and the matter was not resolved; and 4) once the Affirmative Action Officer notifies the Respondent that they will proceed as the Complainant under Section 5.6 Pattern of Harassment.
- Where mediation was attempted and the matter was not resolved, either party may request appointment of a Harassment Hearing Panel (Hearing Panel) to resolve the complaint by a formal hearing. The request for a hearing must be made no later than seven business days after the party receives written notice of the right to proceed. The request must be in writing, signed by the party making the request. A formal hearing process is initiated once the request is received by the Affirmative Action Officer.
5.9.4. Pre-Hearing Timeline
- Within ten business days of the initiation of the formal hearing process the Affirmative Action Officer will notify the Complainant and Respondent of the members of the Hearing Panel. The Complainant and Respondent will then have three business days to object in writing to any one or more of the members of the Hearing Panel, or raise potential conflicts of interest. Any decision to change a member or members of a Hearing Panel will be in the sole discretion of the Affirmative Action Officer. If any objections are raised, the Affirmative Action Officer will notify the Complainant and Respondent of the final Hearing Panel members (whether changed or not) within five business days after receiving the last objection.
- The Affirmative Action Officer will notify the Complainant and Respondent of the hearing date, time and place, which shall be set for no less than 10 but no more than 21 business days after the date the Hearing Panel members are finalized. The hearing may be set for an earlier or later time for good cause as determined in the discretion of the Affirmative Action Officer or by agreement of the Complainant and Respondent.
- At least 5 business days before the hearing the Complainant and Respondent will be provided with the documents gathered to date to be presented to the Hearing Panel (including the Interpersonal Violence Investigation Report in matters of Interpersonal Violence). FERPA protected information may be redacted.
- At least three business days before the hearing, the Complainant and Respondent must submit to the AAO any additional documents or other materials they want considered in the hearing as well as a written list of witnesses they want to testify at the hearing.
- At least three business days before the hearing the Complainant and Respondent will be provided a list of all witnesses who will be called at the hearing, including witnesses submitted by the Complainant, Respondent, and Xavier.
- As soon as possible after their selection, the Hearing Panel shall select a Chairperson from among the members of the Panel to serve for the duration of the Hearing procedures for which this Panel was selected. The Chair may then consult with the Affirmative Action Officer about the complaint to determine the need for any consultants to assist the Hearing Panel during or after the formal hearing.
5.9.5. Composition of Harassment Hearing Board
- The Harassment Hearing Board consists of 24 members and are selected and serve as described in Xavier University Committees. For employee committee membership, see http://www.xavier.edu/employees/faculty/committee-groups. For student committee membership, see. Information specific to Title IX Sexual Harassment and Interpersonal Violence matter will be included in the Harassment Hearing Board members’ annual training. Certain members of the Harassment Hearing Board will receive additional, specific training to serve as the Hearing Panel Chair.
5.9.6. Selection of a Harassment Hearing Panel
- The Affirmative Action Officer maintains the roster for each category of Harassment Hearing Board members (faculty, staff, and students).
- The Affirmative Action Officer will select a Hearing Panel of three members of the Harassment Hearing Board to hear each complaint set for a formal hearing. The Affirmative Action Officer will adhere to the following guidelines in making the selection:
- A Panel will include one student, one faculty, and one staff member. Either the faculty or staff member of the Hearing Panel will be trained to serve as the Chair.
- No member of the Panel may hear a case involving a party if the Affirmative Action Officer deems it to be a conflict of interest.
- Any member who has a conflict of interest will be removed and may be replaced by another member from the same category in the same manner that the conflicted member was selected.
5.9.7. Harassment Panel Hearing Procedures
- Consistent with customary standards of fairness and with procedures specified in this HCAP, the Hearing Panel will determine the most appropriate manner to proceed with a case. In all formal hearings, the following guidelines are intended to protect the rights of both parties and to assure the fairness of the process. For information specific to Title IX Sexual Harassment Hearings, see Section 4.7.14.
- For a hearing to proceed, a quorum of no less than five members must be present. If quorum is not achieved, the hearing will be rescheduled.
- Both parties have the right to attend the hearing. Failure of one party to appear will have no effect on the hearing proceeding, and the Hearing Panel will reach a decision based on the evidence available.
- Neither party may be compelled to testify.
- Both parties have the right to present evidence and to call a reasonable number of witnesses as determined by the Hearing Panel.
- Witnesses may be present only when testifying.
- The Complainant, Respondent, and Xavier may identify witnesses to be called at the hearing. Only witnesses with knowledge directly related to the pending allegation will be allowed to testify at the hearing. Witnesses may be dismissed from the hearing if their statements is based on opinion or perceived character alone. A Hearing Panel may reasonably limit the scope and time devoted to each case or item of discussion during the hearing, including the number of people testifying or providing information. Specifically, corroboration provided by witnesses shall be allowed where appropriate, but repetitive, discussion, or witness material may be limited.
- In matters involving Sex Discrimination the Title IX Coordinator or Title IX Program Director will serve as a witness in the hearing and will answer questions from the parties and/or Hearing Panel members related to the investigation report only. The Title IX Coordinator or Title IX Program Director will not offer an opinion or conclusion as to whether they believes the responding is responsible for violating any provisions of this HCAP.
- Both parties have the right to question all witnesses.
- In matters involving Interpersonal Violence, the Complainant has the right to request to be separated from the responding during the hearing. The Complainant's request will be accommodated at the discretion of the Hearing Panel, so long as the Complainant's rights to hear all information presented and confront all witnesses who testify at the hearing are preserved. For example, the Complainant may be in a separate room from the Hearing Panel and the Respondent, where by use of closed circuit television or other technology, the parties in each room may communicate with each other without being in close proximity to one another.
- Using a general measure of relevance and credibility to the complaint being heard, the Hearing Panel will determine what statements will be permitted at the hearing.
- In matters involving Interpersonal Violence, other than those complaints brought by the Affirmative Action Officer alleging a Pattern of Harassment under Section 5.6, the only sexual history evidence that may be used in the hearing is that of the parties with each other, if it is relevant. However, if a party introduces their own sexual history in furtherance or defense of their position, the other party may then discuss that party's sexual history, if it is relevant.
- Upon request by the Complainant or the Hearing Panel, the Affirmative Action Officer may provide for the Hearing Panel's consideration, information regarding any conduct admitted to by the Respondent while attempting to informally resolve, or in an informal resolution of a complaint filed by the same Complainant against the same Respondent.
- At the Affirmative Action Officer's discretion, multiple incidents involving the same individual may be considered in one hearing.
- Hearing Panel proceedings are not governed by the rules of evidence used by the courts.
- A non-party witness may not testify about any misconduct by the parties except the conduct alleged in the complaint.
- Each party has a right to an advisor from the student body, faculty, administration or staff. This representative, not functioning as legal counsel, may help with preparation of the case, may be present when the case is heard, and may confer with the party during the hearing. Neither party may have legal counsel present at the hearing. In matters involving allegations of Interpersonal Violence, the Complainant and Respondent have the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, including an attorney. The advisor may help the party prepare their position but may not present it or speak for or on behalf of the party in the meeting or proceeding.
- Hearings will be audio tape recorded by the University. No audio or video recording of any nature may be taken by parties or witnesses.
5.9.8. Standard of Evidence
To find a violation of Xavier University's HCAP, the Hearing Panel must find sufficient evidence to conclude by a preponderance of the evidence that the Respondent violated the policy. While the Hearing Panel does not draw a negative inference from the failure of either party to attend a hearing or to testify, a choice not to appear or testify does not change the burden of proof.
5.9.9. The Hearing Panel's Deliberation
In deciding whether a violation of the HCAP has occurred, the Hearing Panel attempts to reach a consensus. If consensus cannot be reached, a vote is taken. All decisions of the Hearing Panel are made by a majority.
If the Hearing Panel finds that the Respondent violated the University's HCAP, it will determine the appropriate remedial action, taking into consideration all of the circumstances of the Respondent's conduct. Once it has determined that the Respondent violated the HCAP, it may seek a statement from the Affirmative Action Officer about prior procedures brought against the Respondent by a Complainant alleging harassment. The Affirmative Action Officer's statement will be limited to the following:
- The fact that a complaint was filed by the same or a different Complainant against this same respondent and the outcome of that complaint;
- Any conduct admitted to by the Respondent while attempting to informally resolve or in an informal resolution of a complaint filed by the same Complainant against this same Respondent;
- The fact that a complaint was made by the same or a different Complainant (whose name will be redacted) against this same Respondent and the outcome
The Hearing Panel may consider this information in determining an appropriate sanction.
Examples of the types of sanctions that the Hearing Panel may issue include, but are not limited to the following: participation of the Respondent in counseling; required community service; prohibition of the Respondent from participating in grading, honors, recommendations, reappointment and promotion decisions, or other evaluations of the Complainant; letter of reprimand and copy of grievance record placed in the Respondent’s permanent file; restrictions on the Respondent's access to University resources, such as merit pay or other salary increases for a specific period; or suspension or dismissal from the University.
In addition, the Hearing Panel may seek to make the Complainant whole by requiring a review of the Complainant's grade, denial of promotion or similar benefit denied to the Complainant, in whole or in part by the Respondent. Any such decision by the Hearing Panel shall be given to the Respondent's supervisor in a position to conduct such a review to determine if a change is proper, and to effect the change.
126.96.36.199 Benchmark Sanctions for Interpersonal Violence
If an employee is found responsible for violating the Interpersonal Violence provisions of the HCAP, the following benchmark sanctions are a starting point for determining the appropriate sanction. Actual sanctions imposed are determined on a case-by-case basis and may be greater or lesser than the benchmark sanctions. These benchmark sanctions are intended to offer guidance to the individuals and panels imposing and recommending sanctions, and to alert the Xavier community of the serious nature of certain violations. Although benchmarks are only provided for certain violations, sanctions may be imposed for violations which are not included in this list.
Sexual Harassment. Given the potential range of behaviors that constitute Sexual Harassment sanctions may range from a Letter of Reprimand to Termination.
Public Indecency. The benchmark sanction for an employee who is found responsible for public indecency is Letter of Reprimand to Termination.
Sexual Exploitation. The benchmark sanction for an employee who is found responsible for sexual exploitation is Letter of Reprimand to Termination.
Rape. The benchmark sanction for rape is Termination.
Sexual Assault. The benchmark sanction for sexual assault is Termination.
Domestic Violence. Given the potential range of behaviors that constitute Domestic Violence (see definition) sanctions may include any sanction from Letter of Reprimand to Termination.
Dating Violence. Given the potential range of behaviors that constitute Dating Violence (see definition) sanctions may include any sanction from Letter of Reprimand to Termination.
Stalking. Given the potential range of behaviors that constitute Stalking (see definition) sanctions may include any sanction from Letter of Reprimand to Termination.
Interpersonal Violence- Other. Sanctions for an employee who is found responsible for other Interpersonal Violence may range from Letter of Reprimand to Termination.
A written report of the Hearing Panel's findings and determination of sanctions is recorded and signed by all members of the Hearing Panel. No minority opinion will be recorded, nor will dissenting members be noted or identified.
This report is then delivered by the Chair of the Hearing Panel to the Affirmative Action Officer. The Affirmative Action Officer then notifies the official(s) responsible for implementing the Hearing Panel's decision, the Complainant, and the Respondent.
Members of the Hearing Panel also receive a copy of this report with the stipulation that any written documentation remain confidential for use only in connection with the duties of a member of the Hearing Panel.
The Hearing Panel's findings and sanctions are subject to an appeal by either party (Section 5.10 Appeals). If neither the Complainant nor the Respondent submits a written request for an appeal with the University President or designee within five business days after the decision is delivered by the Affirmative Action Officer under 12.9.7, the Panel's findings and sanctions shall be final and binding.
5.9.11. Notification of Outcome
In cases of Interpersonal Violence, the Affirmative Action Officer will provide the Complainant and Respondent simultaneous written notification of the outcome of the hearing.