EWU Policy 402-05: Discrimination & Title IX Investigations & Resolutions

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Standards of Conduct

Interim EWU Policy 402-05	Authority: EWU Board of Trustees
Effective: August 1, 2024	Proponent: Vice President for Business & Finance

Purpose: This policy describes the university’s grievance procedures for responding to discrimination and Title IX complaints against EWU employees.

History: This policy updates and supersedes a former version of the policy dated December 10, 2021. It was approved by the Board of Trustees on May 20, 2022. Changes to the policy were approved on an interim basis by the President to comply with updated Title IX regulations effective August 1, 2024.

Applicability: This policy applies to all discrimination and Title IX complaints against EWU employees. Complaints of discrimination or Title IX complaints against EWU students are handled under WAC 172-125 (Discrimination & Title IX Violations by Students).

CHAPTER 1 – INTRODUCTION

1-1. Legal Requirements

EWU is committed to complying with all relevant federal and state nondiscrimination laws including, but not limited to, Title VI, Title VII, Title IX, the Americans with Disabilities Act, and the Washington Law Against Discrimination. In particular, EWU is committed to addressing and preventing hostile work or learning environments based on a person’s protected status.

EWU’s standards for employee conduct are contained in EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities), EWU Policy 402-02 (Diversity & Nondiscrimination), EWU Policy 402-03 (Accommodating Persons with Disabilities), EWU Policy 402-06 (Pregnancy & Parental Leave), EWU Policy 603-10 (Service Animals), and any other policy regarding nondiscrimination. This policy outlines the process EWU will follow when it receives a complaint that an employee has violated one of the standards identified in these policies. The standards for students relating to discrimination and Title IX, as well as the process for responding to concerns, is contained in WAC 172-125 (Discrimination & Title IX Violations by Students). EWU is committed to responding to complaints of discrimination in a prompt and equitable manner.

As the procedures outlined in this policy are required either by Title IX, 34 C.F.R. section 106.3, or the Clery Act/Violence Against Women Reauthorization Act (VAWA), 34 C.F.R. section 668.46, to the extent this policy conflicts with other EWU policies, employment contracts, or collective bargaining agreements, this policy takes precedence.

1-2. Definitions

Civil Rights & Compliance Office: includes the Associate Vice President for Civil Rights/Title IX Coordinator, Director of Civil Rights Investigations and Accessibility, and Associate Director of Civil Rights Investigations & Mediation Services.

Complainant: the person who files a complaint. A complaint may be filed by making a request to EWU’s Civil Rights & Compliance Office to initiate an investigation. The complainant must be the impacted party, Title IX Coordinator, or the university acting on its on initiative.

Dating violence: please refer to EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Discrimination: please refer to EWU Policy 402-02 (Diversity & Nondiscrimination).

Discriminatory harassment: please refer to EWU Policy 402-02 (Diversity & Nondiscrimination).

Domestic violence: please refer to EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Impacted party: this is the person who experienced the discriminatory conduct.

Informal resolution officer: university employee who is designated to facilitate an informal resolution process.

Interpersonal violence: this is a general term used to refer to domestic violence, dating violence, and stalking. These terms are defined in EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Investigator: person designated by the university to review and, if appropriate, investigate allegations of discrimination.

Reporting party: this is the person who reported potential discrimination to EWU’s Civil Rights & Compliance Office.

Respondent: the person who is alleged to have violated a university policy.

Sex-based harassment: please refer to EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Sexual assault: please refer to EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Sexual misconduct: this is a general term used to refer to sex-based harassment, sexual assault, and other forms of sexual misconduct as defined in EWU Policy 402-01.

Stalking: please refer to EWU Policy 402-01 (Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities).

Title IX complaint: a complaint against a university community member for engaging in sex-based harassment, sexual assault, domestic violence, dating violence, or stalking.

1-3. Conflicts of Interest

Individuals who play a role in investigating, presiding over, and making decisions pertaining to complaints under this policy, including, but not limited to, the Associate Vice President for Civil Rights/Title IX Coordinator, investigator, decision-maker, and appeal authority, shall not have any conflict of interest in the process or a bias for or against complainants or respondents generally or an individual complainant or respondent. This includes, but is not limited to, being a witness to the alleged misconduct or being a close family member or friend of the complainant, respondent, or a witness.

If a complainant or respondent believes one of these individuals has a conflict of interest or bias, they should immediately notify the Associate Vice President for Civil Rights/Title IX Coordinator. If the Title IX Coordinator is the person alleged to have a conflict of interest or bias, they should immediately notify the Associate Vice President of Human Resources. The Title IX Coordinator or Associate Vice President shall determine whether a conflict of interest exists and take appropriate action.

CHAPTER 2 – REPORTING & COMPLAINT PROCEDURES

2-1. Reporting

Reports of discrimination may be filed with the Civil Rights & Compliance Office in any of the following ways:

Online: www.ewu.edu/civilrights

Email: eoaa@ewu.edu

Phone: (509) 359-7496

By mail or in person:

Civil Rights & Compliance

211 Tawanka Hall

Cheney, WA  99004

Title IX reports may be filed with the Title IX Coordinator in any of the following ways:

Online: www.ewu.edu/titleix

Email: titleix@ewu.edu

Phone: (509) 359-6724

By mail or in person:

Title IX Coordinator

211 Tawanka Hall

Cheney, WA  99004

Any employee who receives a discrimination or Title IX complaint, except for confidential counselors within Counseling and Wellness Services, must forward any report of discrimination, sexual misconduct, or interpersonal violence immediately to the Civil Rights & Compliance Office or Title IX Coordinator within 24 hours.

2-2. Timely Warning

If the report involves conduct that may constitute a serious or continuing threat to the health and safety of the EWU community, the Associate Vice President for Civil Rights/Title IX Coordinator will notify the Director of Public Safety for the purposes of evaluating whether a timely warning should be issued to campus in accordance with EWU Policy 603-01 (Campus Safety, Security, and Crime Prevention).

2-3. Initial Outreach

After receiving a complaint, the Civil Rights & Compliance Office or their designee(s) will promptly reach out to the impacted party/complainant to provide information about EWU’s discrimination and Title IX process, their rights, reporting options, and available resources and supportive measures regardless of whether a complaint is filed.

This will include information about:

(a) Reporting Options: EWU encourages people to report incidents of discrimination, sexual misconduct or interpersonal violence. However, complainants are not required to file a complaint with EWU or law enforcement. People can file a complaint, with the help of the Civil Rights & Compliance Office upon request, with EWU or with local law enforcement, or both, using one of the following options:

1. EWU process: complaints may be filed with the Civil Rights & Compliance Office or Title IX Coordinator as outlined in section 2-1. This includes complaints against EWU students, employees, contractors, vendors, volunteers, and visitors.
2. Criminal: criminal complaints can be filed with the EWU Police Department or outside law enforcement agency.
3. Both: a complainant may report an incident to both EWU and law enforcement.

(b) Resources (as relevant):

1. A list of resources for obtaining protective, no contact, restraining, or similar orders, if relevant;
2. How to seek medical treatment, the importance of preserving evidence relevant to the alleged conduct or that may be helpful in obtaining a protective order and procedures to follow to preserve such evidence;
3. A list of existing on and off campus counseling, health care services, mental health services, victim advocacy, financial aid, legal assistance, visa and immigration assistance, and other services for complainants and respondents; and,
4. Information about available supportive measures as outlined in section 2-4.

(c) Overview of EWU’s Discrimination & Title IX Process: Information will also be provided about EWU’s process for responding to discrimination and Title IX complaints, including:

1. Importance of preserving evidence that may assist in investigation of the incident or that may be helpful in obtaining a protection order;
2. EWU’s policies regarding the confidentiality of discrimination and Title IX complaints as outlined in section 2-5;
3. How to request supportive measures as outlined in section 2-4;
4. Options for informal resolution;
5. EWU’s investigative process, including who will receive a copy of the investigative report; and,
6. EWU’s prohibition against retaliation and how to report retaliation.

2-4. Supportive Measures

After receiving a complaint, the Associate Vice President for Civil Rights/Title IX Coordinator or designee will review the complaint and determine whether or not supportive measures or interim restrictions are needed. Supportive measures are available regardless of whether someone wants to file a complaint. Requests for supportive measures may be directed to the Student Care Team, investigator, or Title IX Coordinator. Supportive measures may be in place before a complaint is filed, during the investigation and decision-making process, and/or after the final determination of responsibility. Supportive measures are also available for both complainants and respondents.

Supportive measures are provided by EWU free of charge and may include, but are not limited to, safety planning with EWU, mutual restrictions on contact between the parties, academic or workplace modifications, leaves of absence, increased security, counseling options on campus or through the Employee Assistance Program, or campus housing modifications. The purpose of a supportive measure is to provide an equitable process for both the complainant and respondent that minimizes the possibility of a hostile environment on campus. Supportive measures are designed to restore or preserve equal access to EWU’s educational programs or activities without unreasonably burdening either party, including protecting the safety of all parties and EWU’s educational environment, or deterring discrimination, sexual misconduct, or interpersonal violence.

If a complainant or respondent disagrees with the supportive measures determination, they may file a written appeal with the Associate Vice President for Human Resources within 10 calendar days of the determination by emailing hr@ewu.edu. The Associate Vice President for Human Resources, or designee, may affirm, modify, or reverse the supportive measures determination. Such decision shall be served on the appealing party in writing. If a party’s circumstances change materially, they may request new or additional supportive measures.

Supportive measures are confidential and will only be shared with those people who need to know such information to enable EWU to provide the supportive measures. The Title IX Coordinator or designee is responsible for coordinating the effective implementation of supportive measures.

All supportive measures should be documented and retained for seven years. If supportive measures are not provided, EWU must document the reasons why such measures were not needed.

2-5. Confidentiality

Information gathered during the investigation and adjudication of a discrimination or Title IX complaint will be maintained in a confidential manner to the extent permitted by law. During an investigation, complaint information will be disseminated only on a need-to-know basis. However, EWU cannot ensure confidentiality, as its legal and contractual obligations may require disclosure of complainant, witness, or respondent names. In the case of a public records request, the names and personally identifiable information of the complainant and witnesses, along with identifying information, will be redacted consistent with the Public Records Act, RCW 42.56, unless the complainant or witness request to have their names disclosed.

If a complainant wishes to remain anonymous, EWU will take reasonable steps to gather information about the complaint but may not be able to investigate the complaint due to a lack of information or witnesses. If the complainant wishes to remain anonymous, the university shall inform them that its ability to investigate and respond to the allegation will be limited and that any type of retaliation is prohibited.  The university will inform the complainant of EWU’s commitment to respond to complaints of retaliation.  If a complainant wishes to remain anonymous, the Associate Vice President for Civil Rights/Title IX Coordinator must determine whether and to what extent the university can investigate the complaint. Reports of crimes to the campus community, timely warnings, and EWU’s annual security report shall not include the names of the complainants or victims.

EWU will not require a complainant or respondent to abide by a nondisclosure agreement that would prevent the redisclosure of information related to an investigation or disciplinary action under this policy.

2-6. Filing of Complaints

(a) Who Can File a Complaint: Complaints can be filed by anyone who has been directly impacted by conduct that violates EWU’s nondiscrimination policies or by such person’s authorized legal representatives, such as a minor’s parent or legal guardian. The Title IX Coordinator can also file a complaint on behalf of the university for a Title IX issue. The university may also decide to pursue an investigation for other forms of discrimination. If a complaint is filed by the Title IX coordinator, the Title IX coordinator is not considered a “complainant” for the purposes of participating in the investigative process.

(b) How to File a Complaint: To initiate a complaint, a person must submit a request for the university to investigate their concerns either verbally or in writing to the Civil Rights & Compliance Office. Complaints must be filed in good faith.

2-7. Complaint Review and Dismissal/Referral

Upon receipt of a complaint, the Associate Vice President for Civil Rights/Title IX Coordinator will review the complaint to determine if it includes allegations of violations of EWU Policy 402-01, 402-02, 402-06, or WAC 172-125 and determine which process applies within 14 calendar days of receiving a complaint. This time may be extended if additional information is needed to make such determination or if there is an active criminal investigation. If the complaint falls within the scope of this policy, it shall be addressed in accordance with the procedures outlined in this policy. If the complainant or respondent has requested informal resolution, the Associate Vice President will determine whether or not informal resolution is appropriate and, if so, refer the matter to the person designated to handle informal resolutions. If the complaint falls within the scope of this policy and the complainant is not interested in informal resolution, the complaint will be assigned to an investigator as identified below in section 4-1. If the complaint falls outside of the scope of this policy, it shall be reviewed for potential violations of other university policies and handled under EWU Guideline 401-01 (Investigations).

Additionally, even if a complaint falls within the scope of this policy, the Associate Vice President/Title IX Coordinator may dismiss the complaint if:

(a) EWU is unable to identify the respondent after taking reasonable steps to do so;

(b) The respondent is not a university employee, volunteer, contractor, or program participant;

(c) The complainant voluntarily withdraws any or all of the allegations in the complaint in writing, the Title IX Coordinator and/or university decline to initiate a complaint on behalf of the university, and, without the complainant’s withdrawn allegations, the conduct that remains alleged in the complaint, if any, would not meet the definition of discrimination, discriminatory harassment, sex-based harassment, sexual misconduct, interpersonal violence, or retaliation under university policy even if proven; or,

(d) The conduct alleged in the complaint, even if substantiated by a preponderance of the evidence, would not constitute a violation of EWU’s nondiscrimination policies. Prior to making this determination, the Associate Vice President/Title IX Coordinator or investigator must make reasonable efforts to clarify the allegations with the complainant.

The Associate Vice President/Title IX Coordinator or designee will inform the complainant in writing of the reason for dismissing the complaint. If the respondent has already received a notice of investigation, the respondent will also be simultaneously served with notice of the dismissal and the reasons for the dismissal.

Even if a complaint is dismissed, the complainant will be offered supportive measures. If the respondent has already been notified, the respondent will also be offered supportive measures. The Associate Vice President/Title IX Coordinator will also take other appropriate prompt and effective steps to ensure that discrimination does not continue or recur within EWU programs or activities.

The Associate Vice President/Title IX Coordinator may consolidate complaints under this policy when the allegations of discrimination, harassment, sexual misconduct, interpersonal violence, or retaliation arise out of the same facts or circumstances. When more than one complaint is involved, all references to the “complainant” throughout this policy include all individuals who have filed a complaint against the respondent that are consolidated into one investigation.

Appeal of Dismissal : If a complainant or respondent does not agree with the Associate Vice President/Title IX Coordinator’s dismissal of the complaint, the party can appeal the decision by filing an appeal within three (3) calendar days with the Associate Vice President for Human Resources by emailing such appeal to hr@ewu.edu. Appeals may be filed for one or more of the following reasons:

(i) Procedural irregularity that would change the outcome of the decision to dismiss the complaint;

(ii) New evidence that would change the Associate Vice President/Title IX Coordinator’s decision that was not reasonably available when the dismissal was made; or,

(iii) The Associate Vice President/Title IX Coordinator or designee had a conflict of interest or bias for or against complainants or respondents generally or the individual parties that would change the outcome.

If the respondent has not been notified of the complaint prior to the dismissal, the respondent will not be notified of the dismissal or appeal. If the respondent has been notified of the complaint, the respondent will be provided with notice of the dismissal and given the same opportunity to appeal the determination. They will also receive notice if the complainant appeals. If one party appeals and the other party is entitled to notice, the other party will be given notice of the appeal and three calendar days to provide a response to the appeal. The Associate Vice President for Human Resources can affirm, reverse, or remand the Associate Vice President for Civil Rights/Title IX Coordinator’s decision and such decision must be served in writing simultaneously on the parties who participated in the appeal.

2-8. Interim Restrictions & Administrative Leave

The Associate Vice President/Title IX Coordinator or designee, in conjunction with the relevant appointing authority, will review the information provided in the complaint and any supplementary information provided by the complainant, witnesses, EWU police department, or other entities, to determine whether the employee should be placed on administrative leave and any conditions of such leave.

Additionally, the Associate Vice President/Title IX Coordinator and appointing authority should determine whether or not, in addition to administrative leave, any interim restrictions on the respondent’s ability to utilize campus resources or be on campus are needed.

Student employees can be restricted from participating in university programs or activities on an interim basis in accordance with WAC 172-125.

2-9. Extensions & Timelines

EWU must respond to discrimination and Title IX complaints in a prompt and equitable manner. To assist the university in achieving this goal, this policy identifies timelines for each part of the grievance process. If the university, complainant, or respondent, wishes to temporarily delay the grievance process or extend a timeline, the person seeking the extension must file a written request with the Associate Vice President for Civil Rights/Title IX Coordinator, Director of Civil Rights Investigations, or Associate Director of Civil Rights Investigations. The request must identify the reason for the delay. The appropriate individual from the Civil Rights & Compliance Office or designee may extend the timeframes for good cause. Good cause includes situations such as the absence of a party, party’s advisor, or witness at a hearing; concurrent law enforcement activity; or the need for language assistance or accommodations. If the respondent requests a delay because of a related criminal proceeding, the Civil Rights & Compliance Office or designee will engage in a balancing process based on the particular circumstances of the case consistent with state law. The Civil Rights & Compliance Office or designee will issue a written response to the request and state the reasons for why the request has been granted, modified, or denied. A copy of this decision will be provided to the complainant and respondent.

CHAPTER 3 – INFORMAL RESOLUTION

3-1. Referral 

The Associate Vice President/Title IX Coordinator or investigator may refer any report or complaint to the informal resolution process. It is not necessary that a formal complaint be filed for a report to be referred to this process. A report/complaint may be referred to the informal resolution process at any time prior to the completion of an investigation. The Associate Vice President/Title IX Coordinator may determine informal resolution is not appropriate, even if requested by both parties, if the alleged conduct could present a future risk of harm to others or other circumstances are present that make informal resolution inappropriate. This decision is not subject to appeal.

3-2. Voluntary Participation

Informal resolution processes may include a variety of voluntary processes that are structured to facilitate dialogue between impacted parties while balancing support and accountability. The various types of informal resolution options available at EWU and procedures for resolution are available on the EWU Civil Rights and Title IX websites. In all cases, the impacted parties must agree in writing to participate in the informal process and EWU will not require or pressure a party to participate in the informal process. A party is not required to waive the right to an investigation and/or hearing to participate in this process.

3-3. Informal Resolution Officer

Informal resolutions will be handled by an EWU employee who is trained to facilitate such processes. In no case will the informal resolution officer be the same person as the investigator or any EWU employee who will make a decision regarding the complaint if informal resolution is not successful. The informal resolution officer must also not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.

3-4. Written Information About the Process

Before beginning the informal resolution process, EWU will provide both parties with the following information in writing:

(a) Summary of the alleged conduct;

(b) The requirements of the informal resolution process;

(c) Notice that, prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and to initiate or resume the investigative process;

(d) That the parties’ agreement to a resolution at the conclusion of the informal resolution process will preclude the parties from initiating or resuming a formal complaint process arising from the same allegations;

(e) The potential terms that may be requested or offered in an informal resolution agreement, including notice that an informal resolution agreement is binding only on the parties; and

(f) What information EWU will maintain and whether and how EWU might use such information if the formal complaint process is initiated or resumed.

3-5. Options for Resolution

Potential terms that may be included in an informal resolution agreement include, but are not limited to:

(a) Restrictions on contact;

(b) Restrictions on the respondent’s participation in university programs or activities or attendance at specific events;

(c) Training; or

(d) Any other terms the parties agree upon that the informal resolution officer deems appropriate.

3-6. Written Agreement

Any informal resolution agreement must be in writing and signed by the parties and the informal resolution officer. In the agreement, the parties must be advised in writing that:

(a) The agreement is final, and they are waiving any right to a formal complaint process, including any right to appeal; and

(b) If a party does not successfully complete all aspects of an agreement, they may be disciplined for failure to comply with the agreement, and/or any possible violation of university policy for the conduct that was the basis for the informal resolution.

3-7. Referral Back to the Formal Complaint Process

If any party decides to leave the informal resolution process or the informal resolution officer determines the process is no longer appropriate, then the matter shall be referred back to the Associate Vice President/Title IX Coordinator to determine the next steps under this policy.

CHAPTER 4 – INVESTIGATION

4-1. Designation of an Investigator

After reviewing the complaint as set forth above, the Associate Vice President for Civil Rights/Title IX Coordinator may assign the complaint to an investigator. The Associate Vice President may be the investigator. The investigator must not have a conflict of interest or bias as set forth in section 1-4.

The complainant or respondent may request a different investigator by contacting the Associate Vice President for Civil Rights/Title IX Coordinator within five (5) calendar days of receiving notice of the designation of the investigator. The request must identify the reason the person is seeking a different investigator. If the Associate Vice President for Civil Rights/Title IX Coordinator is the investigator, the request should be addressed to the Associate Vice President of Human Resources. A written decision will be provided to the requestor.

4-2. Notice of Investigation

The investigator shall provide the respondent and complainant with a written notice of investigation that includes:

(a) A written list of the allegations with sufficient details of the allegations based on current information, including, if known, date and time of the incident, description of the conduct, and the specific sections of university policies or expectations allegedly violated;

(b) Contact information for the investigator;

(c) Parties’ rights during the process, including:

• Right to a fair and equitable process.
• Right to have decision-makers that do not have a conflict of interest or bias against the parties.
• Right to remain silent during the investigation.
• Right to have an advisor of their choice, at their cost, during the investigation. The advisor may be, but is not required to be, an attorney or union representative. During the investigative process, the advisor may be present and advise the party, but may not answer questions on the party’s behalf.
• Right to be presumed not responsible and that a conclusion of responsibility is not made until the conclusion of the investigative process.
• Right to request an accommodation or interpreter for the process

(d) Notify both parties that complainants, respondents, and witnesses are prohibited from knowingly furnishing false information during the investigative process. A person will not be disciplined for making a false statement based solely on whether or not EWU determines a complaint under this policy is substantiated.

(e) EWU’s prohibition on retaliation and how to report acts of retaliation;

(f) Information about how the parties will be provided an equal opportunity to access relevant information gathered during the investigation; and,

(g) Information about supportive measures and resources available to both parties.

4-3. Investigative Process

The investigator has discretion in determining the formality, scope, and process of the investigation. If additional allegations are discovered during the course of the investigation, the investigator shall issue an updated notice of investigation. Before scheduling an interview with a complainant or respondent, the investigator must provide the party with written notice of the date, time, location, participants, and purpose of all meetings with sufficient time for the party to prepare. The investigative process must include:

(a) Contacting the complainant to review the complaint, gather more information, and to identify relevant witnesses and relevant evidence (e-mails, social media posts, photos, etc.). If necessary, the investigator may contact the complainant on more than one occasion during the course of the investigation to obtain additional information and clarification. If the investigator is not able to obtain sufficient information or if the complainant withdraws the complaint during the investigative process, the investigator may refer the complaint back to the Associate Vice President for Civil Rights/Title IX Coordinator to determine whether or not dismissal is appropriate.

(b) Contacting the respondent to review the complaint, gather more information, and to identify relevant witnesses and relevant evidence (e-mails, social media posts, photos, etc.). The respondent may choose to respond verbally, in writing, or not at all.

(c) Conducting interviews with witnesses who have knowledge of the alleged behavior and gathering relevant evidence.

(d) Parties and witnesses may be contacted once or numerous times as necessary to gather the relevant information.

(e) Parties may identify fact witnesses, expert witnesses, and other inculpatory and exculpatory evidence. If a party wishes to provide information from an expert witness, the party is responsible for any costs associated with the expert witness.

(f) The investigator must have the ability to question parties and witnesses to assess their credibility to the extent credibility is both in dispute and relevant. The investigator may ask questions during individual meetings with a party or witness.

(g) Only for Title IX cases involving allegations of sexual misconduct or interpersonal violence, the investigator will also allow each party to propose questions that the party wants asked of any party or witness. The investigator will then ask those questions of the party/witness, subject to the limits below, during an individual meeting and will provide each party with an audio or audiovisual recording or transcript of the investigative interview with enough time for the party to have a reasonable opportunity to propose follow-up questions. The investigator may determine a proposed question is not relevant or is otherwise impermissible and must explain their decision to exclude a question in the investigative report. If the party’s proposed question is relevant and not otherwise impermissible, then the question must be asked unless the question is unclear or harasses the party or witnesses being questioned. If the investigator believes the question is unclear or harassing, they must give the proposing party an opportunity to clarify or revise the question.

(h) The investigator may choose to place less or no weight upon statements by a party or witness who refuses to respond to the investigator’s questions. The investigator, however, must not draw an inference about whether or not this code was violated based solely on a party’s or witness’s refusal to respond to the investigator’s questions.

(i) After gathering the relevant evidence, the investigator must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is relevant to the allegations raised in the complaint and not otherwise impermissible. The investigator must take reasonable steps to prevent and address the parties’ and their advisors’ unauthorized disclosure of information and evidence obtained solely through this process.

(j) The investigation shall not include evidence nor shall any information provided be disclosed to another person if such information:

(1) Is evidence protected under a legal privilege recognized by federal or state law, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;

(2) Records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless EWU obtains that party’s or witness’s voluntary, written consent for use of the information in the investigation;

(3) Information about the complainant’s sexual predisposition or prior sexual behavior, unless the evidence is relevant to demonstrate that someone other than the respondent committed the conduct alleged by the complainant, or the evidence concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and is relevant to the question of consent. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant’s consent in the incident under investigation.

4-4. Investigative Report and Determinations of Responsibility

(a) Neither the complainant nor the respondent has the burden of proof. This means the respondent is presumed to be not responsible and does not have to prove they are not responsible. Rather, the university has the burden of collecting evidence to establish whether or not the respondent is responsible based on a preponderance of the evidence.

(b) After gathering the relevant evidence, the investigator must objectively evaluate the information gathered and determine the credibility of the parties. Credibility determinations must not be based on a person’s status as a complainant, respondent, or witness. The investigator will prepare an investigative report that accurately summarizes the information gathered and makes determinations on whether or not university policy has been violated or the employee has engaged in misconduct based on a preponderance of the evidence. A  preponderance means that it is more likely than not (50+%) that something did or did not occur.

(c) If the investigator determines the respondent has not violated a university policy, the investigator will simultaneously serve the investigative report on the complainant and respondent along with information about how to appeal the investigator’s decision.

(d) If the investigator determines the respondent has violated university policy, the investigator will send the investigative report to Human Resources and the respondent’s supervisor. A copy of the report will also be simultaneously sent to the complainant and respondent.

4-5. Disciplinary Decision

(a) Pre-disciplinary Meeting. If the respondent is entitled under an applicable collective bargaining agreement to meet with their supervisor to provide additional information before a disciplinary decision is made, the complainant must be notified in advance of the time and place of such meeting.  The complainant and the respondent shall have an equal opportunity to provide additional information for the supervisor’s consideration at the pre-disciplinary meeting.  If the respondent is afforded the opportunity to provide additional information in writing, the same opportunity must be afforded to the complainant.

(b) Disciplinary Decision. After the pre-disciplinary meeting (if necessary), the supervisor will consider the investigative report, the complainant’s response, the respondent’s response, and any other relevant information in consultation with Human Resources to determine whether discipline or corrective is warranted and, if so, the appropriate level. This may include, but is not limited to, corrective/constructive action or discipline, including letters of expectation, letters of coaching and counseling, performance improvement plans, verbal or written reprimand/warning, temporary suspension, demotion, reassignment, mandatory training, and/or termination.

A copy of the university’s written counseling or disciplinary decision shall be provided simultaneously to the complainant and the respondent. The decision shall include the rationale for the result and the discipline imposed. The complainant and respondent shall be simultaneously informed in writing of any changes made to the disciplinary decision and when the results become final.

(c) Remedies. The supervisor must also determine whether or not remedies for the complainant or other impacted individuals are appropriate. Remedies must be provided to the complainant and other impacted members of the university community if needed to restore or preserve equal access to the university’s educational programs or activities.

(d) Complainant’s Rights for Title IX Complaints. During any disciplinary meeting where the respondent has a right to be present, the complainant also has the right to be present as required by federal law. The complainant may also, upon request, be provided with access to any information reviewed by the supervisor in determining whether to impose discipline.

(e) Notice to Civil Rights & Compliance. The supervisor’s decision must be provided to the Associate Vice President for Civil Rights/Title IX Coordinator within 3 business days of its issuance.

4-6. Personnel File            

In accordance with RCW 28B.112, any substantiated findings of sexual misconduct must be included in the respondent’s personnel file. Personally identifiable information that reveals the identity of the complainant and any witnesses is exempt from public disclosure. In accordance with RCW 28B.112, the university will disclose substantiated findings of sexual misconduct to any employer conducting reference or background checks on a current or former employee for the purposes of potential employment, even if the employer conducting the reference or background check does not specifically ask for such information.

CHAPTER 5 – APPEAL PROCESS

5-1. Filing an Appeal

The complainant or respondent may appeal the supervisor’s decision by filing a written appeal within seven (7) calendar days of service of the supervisor’s decision. If the investigator did not determine the respondent violated university policy or engage in misconduct, and thus did not refer the matter on to a supervisor, the complainant or respondent may appeal the investigator’s decision by filing a written appeal within seven (7) calendar days of service of the investigator’s decision. The decision is served when it is emailed to the parties at their official university email address. To file an appeal, the complainant or respondent must email eoaa@ewu.edu. The appeal must set forth why the person believes the supervisor or investigator’s decision was incorrect, how its fits within the basis for appeal set forth in the next section, and the relief requested.

5-2. Basis for Appeal

A complainant or respondent may file an appeal from the decision to dismiss a complaint and/or from the investigator or supervisor’s decision on the following bases:

1. Procedural irregularity or failure to comply with a collective bargaining agreement that affected the outcome of the case;
2. New evidence that was not reasonably available at the time of the decision that could affect the outcome of the case; or,
3. The Title IX Coordinator, investigator, or hearing board had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent and such bias/conflict affected the outcome of the case.

5-3. Response to Appeal

Upon receipt of an appeal from a complainant or respondent, the Labor Relations Manager shall notify the other party of the appeal, provide them with a copy of the appeal, and then give them an opportunity to respond. The responding party may submit a response to the appeal or a counter-appeal within seven (7) calendar days of receiving the appeal.

5-4. Appellate Authority

The university shall appoint a senior administrator to serve as the appellate authority. Typically, this will be the appointing authority for the division under which the respondent is employed. The appellate authority cannot be the supervisor who made the disciplinary decision or the investigator. For cases involving Title IX issues, the appellate authority must have completed training on issues relating to sexual misconduct and interpersonal violence, Title IX, and the Violence Against Women Reauthorization Act and must be free of conflict or bias as set forth in section 1-4.

5-5. Decision on Appeal

The appellate authority shall review all of the evidence presented during the investigation and reviewed by the supervisor. The appellate authority shall also review the appeal and the response from the responding party, if any. If issues are raised during the appeal regarding the procedures followed and such information was not contained in the investigative record, the appellate authority may ask the parties, the investigator, or the Title IX Coordinator for additional information, but is not required to do so. If additional evidence is requested and obtained, a copy should be provided to both parties. With respect to findings of fact, the appellate authority must give due regard to the investigator’s opportunity to observe the witnesses.

The appellate authority may affirm, reverse or modify the investigator/supervisor’s decision based on the grounds for appeal. The appellate authority may also remand the case back to the investigator to take additional evidence. The appellate authority must issue a written decision describing the result of the appeal and the rationale of the result. A copy of the decision must be simultaneously provided to the respondent, complainant, respondent’s supervisor, and Associate Vice President for Civil Rights/Title IX Coordinator. The appeal decision must be issued within thirty (30) calendar days of receipt of the responding party’s response to the notice of appeal.

The appellate authority’s decision is the final decision of the university. If an employee has a right to arbitration under a collective bargaining agreement, their respective union may demand arbitration of the university’s final decision in accordance with the applicable collective bargaining agreement. To the extent required by federal law for Title IX complaints involving sexual misconduct or interpersonal violence, the complainant has the right to fully participate in any arbitration from a decision made under this policy.

CHAPTER 6 – RESOURCES & REFERENCES

The following resources may be helpful if you have concerns involving sexual misconduct.

6-1. Non-Confidential Campus Resources

Student Accommodation & Support Services

019 Hargreaves Hall
(509) 359-6871

Title IX Coordinator

211 Tawanka Hall

(509) 359-6724

 

University Police

101 Red Barn

Emergency:  Dial 911

Office:  (509) 359-6300

6-2. Confidential Resources

Counseling and Wellness Services

225 Martin Hall

(509) 359-2366

 

24/7 Regional Crisis Line

(877) 266-1818

 

Washington State Employee Assistance Program

(877) 313-4455

 

YWCA Alternatives to Domestic Violence- 24 hour crisis line

(509) 326-2255

 

Lutheran Community Services, Sexual Assault & Family Trauma Response Center;

(509) 747-8224

6-3. Federal Agencies

Department of Education, Office for Civil Rights

915 Second Avenue, Room 3310

Seattle, WA 98174

(206) 442-1636

OCRSeattle@ed.gov

http://www.ed.gov/ocr/complaintprocess.html

6-4.  References

1. EWU Policy 402-01, Sexual Misconduct, Interpersonal Violence & Title IX Responsibilities
2. EWU Policy 403-05, Employee Leave Related to Domestic Violence, Sexual Assault & Stalking
3. EWU Policy 603-01, Campus Safety, Security & Crime Prevention
4. Titles VI and VII of the Civil Rights Act of 1964
5. Title IX of the Education Amendments of 1972
6. Campus Sexual Violence, RCW 28B.112
7. Discrimination & Title IX Violations by Students, WAC 172-125
8. Washington State Laws on Discrimination, RCW 49.60
9. Collective Bargaining Agreements
10. Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act