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Investigative and Adjudicative Procedure

Investigative and Adjudicative Procedure to Address Employee, Faculty Member or Third- Party Complaints of Sexual Misconduct

These are the Procedures to Address Complaints of Sexual Misconduct against an Employee, Faculty Member or Third-Party (Procedures) that provides a process for the prompt and equitable investigation and adjudication of complaints of sexual misconduct. The Procedures ensure that UMGC is compliant with federal and State law as well as UMGC’s Policy 041.00 - Sexual Misconduct (the Policy).

Any person alleging Sexual Misconduct against a UMGC Employee, UMGC Faculty Member, or a visitor or guest to a UMGC location may submit a report to the Title IX Coordinator.

Additionally, UMGC, on its own, may also initiate, investigate, and adjudicate complaints of Sexual Misconduct against a member of the faculty, an employee or a third party under these Procedures. The Procedures also address reports of Retaliation.

Complaints against a student shall not proceed under these Procedures. Such complaints will be reviewed using the Investigative and Adjudicative Procedures to Address Student Complaints of Sexual Misconduct.

When an incident of Sexual Misconduct is reported to the Title IX Coordinator, UMGC is on Notice and it will take immediate and appropriate action to investigate the report or otherwise determine what occurred. This obligation applies to any allegation of Sexual Misconduct covered by the Policy regardless of whether a law enforcement investigation or action is pending.  UMGC will initiate the following steps:

  1. Preliminary Inquiry by the Title IX Coordinator. The purpose of the Preliminary Inquiry is to gain a basic understanding of the nature and circumstances of the report and to provide the Person subjected to Sexual Misconduct with information about resources, procedural options and supportive. During the Preliminary Inquiry, the Title IX Coordinator will specifically:
    1. Review information provided by the Reporting Party (the person may or may not be the person subjected to the Sexual Misconduct).
    2. Provide and review the Policy and Procedures with the person subjected to the Sexual Misconduct.
    3. Address any immediate physical safety and emotional well-being needs.
    4. When applicable notify the person subjected to Sexual Misconduct of the right to contact law enforcement.
    5. When applicable identify resources for medical treatment.
    6. Inform the Person subjected to Sexual Misconduct of the importance of preservation of evidence.
    7. Discuss available options with the person subjected to the Sexual Misconduct.
    8. Provide the person subjected to the Sexual Misconduct with information about Supportive Measures as described in the Policy.
    9. Inform the Person subjected to Sexual Misconduct of the right to have an advisor, advocate, or support person present during any meeting throughout the process.
    10. Provide the person subjected to the Sexual Misconduct with a copy of the Notice of Rights for Complainants.
    11. Explain UMGC's policy prohibiting retaliation.
    12. If practical, within 48 hours determine applicability to Sexual Misconduct policy after assessing the nature and circumstances of the allegations reported.
    13. Notify the person subjected to the Sexual Misconduct of initial determination regarding applicability of the Policy.
      1. Non-Applicability. The Policy is not applicable under Title IX if:
        1. If the alleged conduct as described by the person subjected to the Sexual Misconduct does not constitute sexual harassment as defined in the Definition section of the Policy.
        2. The described incident does constitute sexual harassment as defined by UMGC Sexual Misconduct policy, but it did not occur at a UMGC program or activity.
          1. The described incident will be reviewed by the Title IX Coordinator under a Title VII analysis.
        3. The described incident does constitute sexual harassment, but it did not occur against a person in the United States.
          1. The described incident will be reviewed by the Title IX Coordinator under a Title VII analysis.
        4. The Title IX Coordinator is required to dismiss Title IX Sexual Harassment Complaints as defined by UMGC Sexual Misconduct policy, for any of the reasons described paragraphs a through c above
          1. The Title IX Coordinator must promptly send written notice of the dismissal and reason.
      2. Applicability.
        1. If the Policy is applicable, the Title IX Coordinator will ascertain whether the person subjected to the Sexual Misconduct wishes to pursue a Formal Complaint.
        2. A Sexual Misconduct incident that it not applicable under the Title IX definition of Sexual Harassment of the Policy may be applicable under the Title VII definition of Sexual Harassment of the policy.
  2. Informal Resolution (not applicable in cases of sexual violence occurring). Informal resolution includes but is not limited to targeted or broad-based educational programming or training, direct confrontation of the Respondent and/or indirect action by the Title IX Coordinator or UMGC. Depending on the form of informal resolution used, it may be possible for the person subjected to the Sexual Misconduct to maintain their anonymity.
    1. UMGC will not compel a person subjected to Sexual Misconduct to participate in any form of informal resolution.
  3. Options to Dismiss a Formal Complaint. The Title IX Coordinator may dismiss the formal complaint or any allegations therein for the following reasons:
    1. At any time during the investigation or hearing: Complainant notifies the Title IX Coordinator in writing that Complainant would like to withdraw their formal complaint or any allegations therein.
    2. Respondent is no longer employed at UMGC.
    3. Specific circumstances prevent UMGC from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
    4. Both Complainant and Respondent will be notified in writing, if the Title IX Coordinator decides to dismiss a formal complaint for any of the above reason(s).
  4. Investigation. The investigation will provide for a prompt, thorough, impartial, and equitable gathering of the facts. All individuals interviewed during the Investigation, including the Parties and any witnesses, will be treated with appropriate sensitivity and respect. Consistent with the need for a full assessment of the facts, the investigation will safeguard the confidentiality of the individuals involved as much as possible.
    1. Title IX Coordinator will provide written notice, in the form of a Notice of Investigation to both parties. The Notice of Investigation will include the following information:
      1. Detailed description of the Allegations including:
        1. Name of the Complainant unless anonymity has been requested.
        2. To the extent known, date, time, and place of the alleged Sexual Misconduct incident(s)
        3. Identification of the specific Policy provision(s) alleged to have been violated
      2. Range of potential sanctions for the alleged violations
      3. Identification of assigned Title IX Investigator
      4. Information about the right to be assisted by an attorney, advocate, or personal supporter.
        1. The Parties have the right to be assisted by an attorney, advocate as well as a personal supporter of their choice ("supporter") throughout the investigation and adjudication of a Sexual Misconduct complaint.
        2. Advocates may not be a witness or other party in the proceeding.
        3. Advocates and supporters may accompany the parties to any meeting or interview.
        4. Parties may not have more than two people, including a supporter and advocate, at any meeting or interview.
        5. Advocates and supporters have no speaking role in a meeting or interview and are not permitted to ask or answer questions.
        6. All communication regarding the resolution process will be directed to the Parties.
        7. UMGC will only respond to communications received from the Parties. An advocate will not be permitted to communicate on a Party's behalf except if a Hearing is required as discussed in Paragraph VIII of the proceedings.
        8. In the context of serving as an advocate or supporter to a Party, their statements are solely made as an advocate and/or supporter for a Party. It is important, when one chooses an advocate or supporter, to ask for the individual's consent to serve in that capacity before divulging any confidential information.
  5. Advocate Roles. In addition to attending meetings and interviews, advocates are permitted to assist parties through:
    1. Private consultations with the party during meeting and interviews.
    2. Providing advice to the party in a non-disruptive manner (such as communicating in writing).
    3. Assisting a party's exercise of any right during the investigative and adjudicatory process.
    4. If a Party wishes to have an advocate accompany the Party to a meeting or interview, Parties are asked to give notice to the Title IX Coordinator or Investigator at least twenty- four (24) hours prior to any meeting or interview that an advocate will attend. Parties may select and retain an advocate at any time before the conclusion of a formal Sexual Misconduct complaint is resolved.
  6. Investigation. At the commencement of the Investigation, the Title IX Coordinator will provide the Investigator(s) with a copy of the Formal Complaint and/ or a copy of the Title IX Coordinator's Preliminary Inquiry memorandum. The Investigation ordinarily will include interviews of the Parties and any witnesses who may have relevant information, unless clearly unreasonable or duplicative of information already gathered; a review of any pertinent documents, medical records, and communications; and may include other actions deemed appropriate by the Investigator(s).
    1. Title IX Investigator will contact parties within 48 hours, if practical, to schedule an interview
    2. Title IX Coordinator will also provide Respondent with a copy of the Sexual Misconduct Policy and a copy of the Notice of Rights for Respondents.
    3. If additional allegations are revealed during the Investigation, the Title IX Coordinator will send a revised Notice to the Parties.
    4. If additional allegations are made by witnesses during an investigation, the Title IX investigator will refer the witness(es) to the Title IX Coordinator to conduct a preliminary inquiry into the witness(es) allegation(s) to ascertain if the witness(es) wish to pursue a complaint against the Respondent.
    5. Sexual Misconduct investigation completed within a reasonable time.
      1. Limited extension of time frames for good cause are permitted with written notice to the Complainant and the Respondent of the time extension and the reason(s) therefore.
        1. Good cause may include considerations such as:
          1. The absence of a party, a party's advisor, or a witness.
          2. Concurrent law enforcement activity.
          3. The need for language assistance.
          4. Accommodation of disabilities.
    6. At the beginning of the interview, the Title IX Investigator will explain the following:
      1. Meaning of Confidentiality
      2. Non-Retaliation provision
      3. Non-recording of Interview
      4. Parties and witnesses will be provided with a written copy of their responses to Investigator's questions within 48 hours of interview.
      5. Opportunity for parties and witnesses to correct and amend investigator's interview notes and return to Investigator within 48 hours.
      6. Parties provided with a redacted copy of the Investigator's report to review.
        1. Parties will be permitted to amend the Investigator's Report with new and/or rebuttal information.
        2. Parties will have 72 hours to return the redacted Investigator's Report with any revisions to Investigator.
      7. Investigator prepares Summary of Investigation and Findings Report.
        1. Summary of Investigation and Findings Report is reviewed by Title IX Coordinator.
  7. Outcome and Standard of proof.  In determining whether the alleged conduct constitutes a violation of the Policy, the Title IX Coordinator will look at the record of the allegations as a whole and the totality of the circumstances based on the information gathered during the Investigation, including but not limited to, the nature of the behavior, the particular facts of the case, the nature of the relationship and interactions between the Parties, and the context in which the alleged conduct occurred. This standard will be applied from the perspective of a reasonable person within UMGC's community. The standard of proof in all Sexual Misconduct cases initiated under the Policy shall be "preponderance of the evidence" (i.e., that it is more likely than not that the Respondent is responsible for violation(s) of the Policy).
    1. Notice of Outcome provided to the Parties by the Title IX Coordinator (Subject to Employee Confidentiality if applicable) by 1st class mail and/or electronic mail
  8. Adjudicative Hearing. Under certain circumstances a live hearing is required instead of the Investigative process described in Paragraph VI of these Procedures. The Title IX Coordinator will notify parties in writing if a live hearing is required prior to the beginning of the investigatory stage,
    1. All relevant evidence, including the Investigative Report that fairly summarizes relevant evidence in an electronic format or a hard copy, will be provided to the parties for inspection and review at least 10 days prior to the hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
    2. At the hearing, the decision-maker(s) must permit each party's advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including challenging credibility.
      1. Cross-examination at the hearing must be conducted directly, orally, and in real time by the party's advisor of choice and never by a party personally, notwithstanding the discretion of the UMGC under paragraph IV(A)(4)(h) of these procedures to otherwise restrict the extent to which advisors may participate in the proceedings.
      2. At the request of either party, UMGC must provide for the hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.
      3. Only relevant cross- examination and other questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a cross- examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
      4. If a party does not have an advisor present at the hearing, per paragraph V(E) of these procedures MHEC provides without fee or charge to that party, an attorney, to conduct cross-examination on behalf of that party.
      5. Questions and evidence about the 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 by the Complainant, or if the questions and evidence concern specific incidents of the Complainant's prior sexual behavior with respect to the Respondent and are offered to prove consent.
      6. If a party or witness does not submit to cross-examination at the hearing, the decision- maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the hearing or refusal to answer cross-examination or other questions.
    3. Hearings may be conducted with all parties physically present in the same geographic location or, at UMGC's discretion, any or all parties, witnesses, and other participants may appear at the hearing virtually, with technology enabling participants simultaneously to see and hear each other.
      1. UMGC shall create an audio or audiovisual recording, or transcript, of any hearing and make it available to the parties for inspection and review.
      2. The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant.
    4. Determination regarding responsibility.
      1. The decision-maker(s) must issue a written determination regarding responsibility.
      2. The written determination must include:
        1. Identification of the allegations potentially constituting sexual harassment.
        2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held.
        3. Findings of fact supporting the determination.
        4. Conclusions regarding the application of the Sexual Misconduct policy to the facts.
        5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the Respondent, and whether remedies designed to restore or preserve equal access to UMGC's education program or activity will be provided to the Complainant; and
        6. Notice of the procedures and permissible bases for the Complainant and Respondent to appeal.
        7. Written determination of the Appeal must be provided to the parties simultaneously.
        8. The determination regarding responsibility becomes final either on the date that the written determination of the result of the appeal is provided to the parties. If an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
      3. The Title IX Coordinator is responsible for effective implementation of any remedies
    5. Outcome and Standard of proof. In determining whether the alleged conduct constitutes a violation of the Policy, the Decision Maker(s) will look at the record of the allegations as a whole and the totality of the circumstances based on the information gathered, including but not limited to, the nature of the behavior, the particular facts of the case, the nature of the relationship and interactions between the Parties, and the context in which the alleged conduct occurred. This standard will be applied from the perspective of a reasonable person within UMGC's community. The standard of proof in all Sexual Misconduct cases initiated under the Policy shall be "preponderance of the evidence" (i.e., that it is more likely than not that the Respondent is responsible for violation(s) of the Policy).
  9. Appeal
    1. Either Party may appeal the Outcome, including the finding of responsible or not responsible and/or the sanctions, in writing, within 10 calendar days of the date of written notification.
    2. The appeal will be reviewed in an equitable manner by an impartial Appeal Hearing Officer. The person designated to review the appeal will have received specific training and experience with Sexual Misconduct matters.
    3. Upon receipt of an appeal, a copy of the appeal will be sent to the non-appealing Party within one (1) business day. The non-appealing party will have three (3) business days to submit a written response.
    4. If an extenuating circumstance warrants an extension, a request for an extension to appeal must be submitted in writing no later than the original deadline for the Appeal. Such requests will be evaluated on a case-by-case basis by the person designated to review the appeal.  If a request for extension is granted to the appealing Party, the non-appealing Party will be provided the same amount of additional time to submit the Response to the Appeal. Appeals or responses submitted after the deadlines without an extension having been granted will be denied.
    5. A written decision will be issued within 30 days after receiving the appeal and appropriate action will be taken.
    6. A copy of the appeal letter and the appeal decision shall be forwarded to the Title IX Coordinator for the file.
  10. Requirements for Appeal and Response to Appeal. The appeal shall consist of a plain, concise, and complete written statement outlining the grounds for appeal, all relevant information to substantiate the basis for the appeal, and appellant's desired outcome. The appeal shall not exceed 10 double-spaced pages with a minimum 12-point font. Dissatisfaction with the Outcome is not a valid basis for appeal.
    1. Grounds for appeal are limited to the following:
      1. Procedural error that significantly affected the outcome.
      2. New evidence that is substantial enough to alter the facts and findings and that could not have been previously discovered and presented by the appellant through reasonable diligence.
      3. Disproportionate sanction such that the sanction was either too severe or not severe enough as compared to the findings and facts of the case.
      4. The Title IX Coordinator, Investigator or a Decision Maker had a conflict of interest or bias for or against Complainant or Respondent, which affected the outcome.
    2. A response to an appeal shall consist of a plain, concise, and complete written statement outlining the reasons that the appeals should be denied, all relevant information to substantiate the basis for the response, and non-appealing Party's desired outcome. The response shall not exceed 10 double-spaced pages with a minimum 12-point font.
      1. If both Parties appeal, each party is permitted to file a response to the other Party's appeal.
    3. Exclusion of Improper Information Submitted on Appeal.
      1. Any information submitted by the appealing or non-appealing Party if it is not relevant or material to one of the specified grounds for appeal, the information will be excluded. The basis for the exclusion of any information will be included in the Appeal Decision letter.
    4. Burden of Proof.
      1. In any request for an appeal, the burden of proof lies with the appealing Party, as the Notice of outcome reached in Summary of Investigation and Findings (and Sanction, if assigned) are presumed to have been decided reasonably and appropriately.
    5. Outcome of Appeal
      1. May affirm or alter the original decision depending based on the requested appeal.
        1. If the appeal is based on procedural error, the Formal Complaint may be returned to the Investigator(s) with instructions to cure the error, or, in rare cases where the error cannot be cured, a new investigation may be requested.
          1. If a new investigation is ordered, the Title IX Coordinator will appoint different Investigator(s) to conduct a new investigation in accordance with these Procedures.
          2. The new investigation shall be expedited to the maximum extent possible while ensuring that a thorough and complete investigation is conducted.
        2. In the case of new and relevant information, the case may be remanded to the original Investigator(s) to assess the weight and effect of the new information, conduct any additional investigation as appropriate, and render a revised report after considering the new and relevant information.
        3. If an appeal is based on an assertion that an imposed Sanction was not appropriate to the violation for which the Respondent was found responsible, a decision to affirm or alter the Sanction may be rendered.
        4. If an appeal is based on the assertion of conflict of interest or bias by the Title IX Coordinator, Investigator or a Decision Maker, the case may be remanded to an external party for adjudication.
          1. The new adjudication shall be expedited to the maximum extent possible while ensuring that it is thorough and complete.
      2. Appeal Decisions are final unless the case is returned for further adjudication.
        1. If the case is subject to further adjudication, a Party may appeal only the portions of the Outcome that have been subsequently changed.
      3. A copy of the appeal letter and the appeal decision shall be forwarded to the Title IX Coordinator for the file.

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