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Corporate Policies and Procedures Administrative and Organizational (AD)

Investigations Into Sex Discrimination and Related Misconduct Policy

Category: Conduct and Conflicts (CC)
Policy#: AD.CC.090
Applies To: All Employees (Faculty, Exempt and Non-Exempt Staff, Post-Doctoral Fellows), Students, and Third Parties

Purpose

This policy provides the procedures that the Medical College of Wisconsin (“MCW”) will follow in response to receiving a report of sex discrimination, sexual harassment, sexual assault, domestic violence, dating violence, and/or stalking.

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Definitions
See Definitions in the MCW Policy Prohibiting Sex Discrimination and Related Misconduct, which are incorporated into this policy.

The Policy Prohibiting Sex Discrimination and Related Misconduct is also referred to herein by its corporate policy number, “Policy AD.CC.080”.
Policy
This policy outlines reporting, investigation and resolution procedures used in cases where an MCW faculty member, staff member or student, or a Third Party, is alleged to have committed, or has been the victim of, a Prohibited Offense.

Victims of Prohibited Offenses have the right to report Prohibited Offenses, seek support, and utilize available resources in connection with the Offense. While victims are not required to report a Prohibited Offense, MCW strongly encourages these individuals as well as others with knowledge of a violation of Policy AD.CC.080 to do so as soon as possible after the violation occurs. Responsible Employees are always required to engage the Title IX Coordinator or a Deputy Coordinator without delay upon receipt of a reported violation of Policy AD.CC.080. The only exception to this requirement is any individual who receives a report while acting in his/her capacity as a Confidential Resource.

MCW expects truthfulness and cooperation from all individuals involved in procedures and activities conducted under this policy. Any false information provided, or obstruction of the investigation process, by any party will be viewed as a serious violation of this policy and may subject the non-compliant individual(s) to discipline in accordance with the applicable institutional policy/ies (including any found in the relevant Handbook(s)).
Procedure

Upon receipt of a reported violation of Policy AD.CC.080, the Title IX Coordinator or designated Deputy Coordinator will facilitate MCW’s response under this policy.

MCW will respond to a reported violation of Policy AD.CC.080 by conducting an initial intake and determining appropriate next steps, which may include a resolution short of an investigation, or an investigation pursuant to this policy.

Reporting Resources
Allegations of Prohibited Offenses may be reported to:

  • Police by calling 911 or 9-911 using an MCW campus phone (emergency situations only);

  • Local law enforcement as listed on the MCW Title IX / Sexual Misconduct webpage;

  • Katie Kassulke, MCW Title IX Coordinator or one of the Title IX Deputy Coordinators, all of whom are listed on the MCW Sexual Misconduct/Title IX website. Reports may also be made by emailing TitleIXCoordinator@mcw.edu;

  • MCW Public Safety (414) 955-8299. MCW Public Safety will assist in emergent and non-emergent cases, and will assist the Complainant upon his/her request in filing any criminal report;

  • Faculty and staff members may report to the Office of Human Resources or to the employee’s immediate supervisor, manager and Department Administrator, Division Chief, or Department Chair;

  • Students may report to the Dean of the student’s school;

  • MCW Compliance Line – 1 (866) 857-4943 (reports may but are not required to be provided anonymously); and/or

  • The Office of Civil Rights of the Department of Education (“OCR”), which enforces Title IX, via email at ocr@edu.gov, or via telephone by calling the local OCR office (call 1 (800) 421-3481 for local office information)

Reports made to Confidential Resources (as defined in Policy AD.CC.080) will not be reported to MCW, and thus do not constitute notice to MCW that a Prohibited Offense occurred, may occur in the future, or is ongoing. It is, however, important to note that depending on the laws and policies applicable to the individual’s role as a Confidential Resource (such as a Psychiatrist), s/he may be required to report certain information learned in the course of performing her/his role as a Confidential Resource to law enforcement or other authorities as required by law. Policy AD.CC.080 and this policy are in no way intended to limit or restrict compliance with such requirements.

Initial Intake in Response to a Report
MCW will complete an initial intake of a report from a Complainant, responsible employee or other individual. If the report was provided by someone other than the Complainant, the Title IX office will reach out to the Complainant to invite them to meet to provide a report, provide information about the use of an advisor, and to provide supportive resources including information about their right to report information to external agencies such as the police and the Office of Civil Rights. MCW will make all efforts to respond to and do an initial evaluation of all reports of violations of Policy AD.CC.080 within ten (10) days of receiving the report. MCW will immediately take all reasonable actions necessary to protect the Complainant and any other individuals, assure his/her wellbeing, and address any hostile environment at MCW and in its educational programs.

If the The Complainant meets with the Title IX office they will be informed of his/her right to file a criminal complaint, and will be provided information on reporting resources (such as filing a police report), the MCW Title IX / Sexual Misconduct resources (including available counseling and support services as listed on the MCW Title IX/Sexual Misconduct website), and applicable institutional policies.

During the evaluation process, the Complainant may request certain interim measures be implemented. MCW will evaluate all such requests and will implement those requests it deems appropriate, and consistent with this policy and applicable law. Possible interim measures are described below. MCW may also implement certain interim measures regardless of whether it receives a request for the same. The Complainant and Respondent (as appropriate) will be notified in separate, concurrent written communications of any such measures.

During the initial intake and evaluation process, MCW will interview the Complainant. MCW may also interview the Respondent, depending in part on whether the Complainant requests confidentiality, whether MCW determines it can comply with such a request for confidentiality, and/or whether the safety of the Complainant and/or other individuals, and/or MCW working and learning environments would be jeopardized by interviewing the Respondent.* In the event MCW does interview the Respondent, MCW will provide the Respondent with the MCW Title IX / Sexual Misconduct resources (including available counseling and support services), Policy AD.CC.080 and this policy. The Complainant and Respondent* will each have the right to name witnesses and provide evidence. MCW may interview any / all such witnesses and will evaluate any evidence provided, at all times in furtherance of ensuring due process in a fair, impartial and thorough process. MCW does not typically interview character witnesses.

All evaluations will be conducted in a fair, impartial manner. The Complainant and Respondent* will be promptly, concurrently and separately informed of the outcome of the initial evaluation, including whether a facilitated resolution will be pursued or investigation conducted.

*Depending on the circumstances and/or Complainant’s request, MCW may determine it inappropriate or unnecessary to notify the Respondent of the report or certain interim measures (such as a parking re-assignment requested by and granted to the Complainant). At all times, MCW will act in accordance with applicable law, this policy, and in furtherance of its commitment to a safe environment, and a fair and impartial process for both the Complainant and Respondent.

Information for Allegations Involving Third Parties
MCW’s ability to take action against a person who is not a faculty member, staff member or student (i.e. a “Third Party”) who is alleged to have violated Policy AD.CC.080 will depend in part on the nature of the relationship of the Third Party to MCW. MCW will determine the appropriate manner of resolution of allegations against such Third Parties based upon MCW’s commitment to a prompt and equitable process consistent with law, to maintaining a safe working and learning environment, and Policy AD.CC.080.

MCW will evaluate and investigate (as appropriate) reports made involving Third Parties who are victims of Prohibited Offense(s) on MCW premises or in connection with an MCW educational program, or activity.

Reports Occurring at an Off-Site Educational Programs
In instances where the Complainant is participating in an off-site educational program, such as an away elective, MCW may be limited in its ability to fully enforce Policy AD.CC.080 and the procedures set forth in this Policy, due to MCW not controlling the site and/or not having authority over the accused party(ies). In such instances, MCW will make all efforts to align its actions with the Complainant’s stated wishes, which may include permitting the Complainant to return to MCW without completing the elective, and /or working with the site institution to mitigate any negative impact on the student’s learning environment. In the event the Complainant does not wish to, or cannot, return to MCW prior to completing the away elective, MCW will make all efforts to enforce the Policies to the extent possible under the circumstances. The foregoing provisions are subject to the general disclaimer that MCW may determine alternative or additional action is required when a threat to its educational programs and learning environment exists.

Confidentiality
MCW recognizes the importance of confidentiality, which includes a request by a Complainant that his/her name not be shared with the Respondent, and/or that no investigation to be conducted. A Complainant may request that MCW comply with his/her desire for confidentiality. MCW will consider the request in the context of its responsibility to provide a safe and nondiscriminatory working and learning environment for everyone. Factors involved in this consideration include the seriousness of the allegation, whether MCW has received other reported misconduct by the accused, and whether MCW is required by law to disclose the reported misconduct. MCW will inform the Complainant of the extent to which confidentiality can be maintained.

Where MCW determines that a Complainant’s request for confidentiality can be honored, MCW may nevertheless take other appropriate steps designed to maintain confidentiality while eliminating the reported misconduct, preventing its recurrence, and remediating its effects on the Complainant, campus, in MCW educational programs and in the MCW community. Those steps may include offering appropriate interim or permanent measures to the Complainant, providing targeted training or prevention programs, and/or providing or imposing other remedies tailored to the circumstances. Any instance in which MCW agrees to comply with a request for confidentiality following a thorough evaluation of the circumstances may result in limitations on the extent to which MCW can effectively respond to the report and mitigate related circumstances and/or a hostile environment. The Complainant may revoke this request for confidentiality and/or seek the additional measures provided herein at any time by contacting the Title IX or a Deputy Coordinator.

Where MCW determines that the Complainant’s request for confidentiality cannot be honored, MCW shall determine the need to implement any interim and/or permanent measures, take other lawful actions it deems appropriate in furtherance of its commitments stated herein, and offer the Complainant an opportunity to utilize the processes available under this policy. If the Complainant does not wish to utilize those processes, the Title IX Coordinator may proceed pursuant to this policy, and will notify Complainant of its decision to do so. The Complainant will be kept apprised in accordance with this policy.

All participants (including the Complainant and Respondent, witnesses, advisors, and investigators) in any part of the processes set forth in this policy are expected to respect the sensitivity of the proceedings and circumstances giving rise to the report. Failure to do so (or allegations of the same on the part of any individual) will be evaluated in the context of the specific facts and circumstances, and may be deemed retaliatory in nature.

Advisors
Complainants and Respondents are each permitted the involvement of one advisor throughout the processes described in this policy. The advisor’s role in any meeting with MCW is limited to quietly conferring with the individual they accompany (Complainant or Respondent) through written correspondence or whisper. Advisors may not address any other participant in the process, in writing or otherwise. Advisors shall not serve as witnesses during the process. The advisor may be any person, including an attorney (at Complainant or Respondent’s expense). MCW reserves the right to exclude any individual assisting the Complainant or Respondent who does not follow the aforementioned guidelines, who is otherwise disruptive, or who represents a conflict of interest that could jeopardize the integrity of the process.

Interim Measures
Interim measures instituted under this policy are designed to preserve the safety of the MCW working and learning environment as well as the MCW community, and minimize the burden on the Complainant.

At any time after the receipt of a report made under this policy, MCW may impose interim measures regardless of whether requested to do so, including but not limited to, restrictions on contact between the Complainant and the Respondent, a hold on salary increases and promotions, change in role and responsibilities and title, a leave of absence or suspension, changes to parking areas, availability of campus escorts, exclusion from areas of campus, interim suspensions and/or academic/work schedule modifications. Complainants and Respondents may request changes to academic, parking and/or working situations and will be informed separately of accommodations reasonably available to each.

In all instances, MCW reserves the right to broaden or lessen any range of interim measures in the event of serious mitigating circumstances or egregiously offensive behavior.

Supportive Resources
MCW encourages Complainants and Respondents separately to seek counseling and support available through resources listed in the MCW Title IX / Sexual Misconduct brochure and webpage. Questions regarding support services may be directed to the Title IX Coordinator or a Deputy Coordinator. Additionally, inquiring employees may direct questions to the Office of Human Resources or the Office of the Ombuds, and inquiring students may direct questions to the Dean of students (or equivalent) in the school in which he/she is enrolled.

Information for Complainant
Complainants will be treated with respect before, during, and after any process conducted under this policy. Complainants will be provided with information in this policy, Policy AD.CC.080, available counseling and support services, the MCW Title IX / Sexual Misconduct webpage, interim measures, and possible outcomes. MCW will communicate to the Complainant regarding the MCW’s response to the report as MCW deems appropriate, but in all instances will keep the Complainant reasonably updated.

The alleged policy violation may be criminal in nature, and the Complainant has the right to file a criminal complaint with the local police department and any other appropriate law enforcement agency. Upon request, the MCW Office of Public Safety may assist the Complainant in filing such a report. A criminal report, or lack thereof, will not impact MCW’s action under this policy or Policy AD.CC.080. Additionally, regardless of whether a Complainant pursues a criminal complaint and/or the options available under this policy, MCW may choose to investigate and/or take mitigating steps with respect to the reported policy violation, and will take appropriate action to uphold the integrity of its ongoing commitments as provided for herein and in Policy AD.CC.080.

Remedies available to the Complainant hereunder include, but are not limited to, reasonable work and/or academic accommodations, leave of absence, parking re-assignments, escort services, , and thea request for a no contact order. MCW may take disciplinary action against the Respondent if it is determined he/she is responsible for violating this or Policy AD.CC.080, as well as any other action(s) MCW deems appropriate and in compliance with institutional policies and the law.

Information for Respondent
Respondents will be treated with respect before, during and after any process conducted under this policy. Respondents will be provided with the information in this policy, Policy AD.CC.080, this policy, available counseling and support services, interim measures (as appropriate, except measures such as but not limited to specifics of a parking re-assignment for the Complainant), as well as possible outcomes. MCW will communicate to the Respondent regarding MCW’s response to the report as MCW deems appropriate, but in all instances will keep the Respondent reasonably updated.

The alleged policy violation may also be criminal in nature, and the Respondent may be subject to a criminal investigation by the appropriate law enforcement agency concurrently with an investigation by MCW under this policy. The Respondent can expect a presumption of innocence throughout any process conducted hereunder unless and until they are found responsible for a violation of this or Policy AD.CC.080.

MCW may take disciplinary action against the Respondent if it is determined he/she is responsible for violating Policy AD.CC.080, as well as any other action MCW deems appropriate and in compliance with institutional policies and the law.

Report Resolution

Alternatives to Investigation
Alternative resolutions to the investigation process may be appropriate following the initial intake in the event the Complainant does not wish to proceed with a full investigation, and MCW believes alternative measures would effectively and finally resolve the reported misconduct and any resulting hostile environment. Examples of alternative resolutions include converting interim measures to permanent measures.

Investigation
Following the initial intake, MCW will investigate any reported violation of Policy AD.CC.080 in the event the Complainant desires such an investigation. In the event an investigation is initiated, the investigation and resolution will be tailored to the specific facts of the case, and will be prompt, fair and impartial.

A. Time Frames
MCW will make all efforts to complete an investigation instances of complex cases, delays due to semester or holiday breaks, inclement weather, or other circumstances. Th timeframe, and any exceptions thereto, will be promptly and concurrently communicated to the Complainant and Respondent in separate notifications.


B. Investigation
An investigation will be conducted by one or more investigator(s) as determined appropriate and appointed by the Title IX Coordinator. The Title IX Coordinator may also serve as an investigator. in unique circumstances. In MCW’s sole discretion and in cases where circumstances warrant, a qualified external individual(s) may serve as an investigator(s). All investigator(s) will be appropriately trained and vetted in advance to ensure no known conflict of interest exists. During the course of an investigation, MCW may as it deems appropriate institute interim measures designed to minimize interaction or contact between the Complainant and Respondent, and preserve the safety of the working and learning environment, and community.


C. Investigation Procedures

1. The Complainant and Respondent will be provided with a written notice of the commencement of an investigation. The notice will include the name of the investigator(s), information available thus far about the allegations, the policy that is alleged to have been violated, ability to secure an advisor, and who to contact with questions.
2. An investigation under this policy will include reviewing all available evidence, and may include some or all of the following steps as appropriate and in furtherance of a fair, impartial and thorough investigation:

a. hold one or more meetings between the investigator(s) and the Complainant and Respondent (separately);
b. review of any written submissions;
c. interview of relevant witnesses;
d. collection of additional information;
e. consultation with technical advisors; and/or
f. consultation with the Title IX Coordinator and/or appropriate institutional official(s) as to actions and sanctions available under the applicable policies / Handbook, provided the consultation shall be limited to the same and at no time shall breach the confidentiality and sensitivity provisions stated herein.

3. The standard of evidence for each investigation shall be a preponderance of the evidence.
4. The Title IX Coordinator and a Deputy Coordinator (as necessary) will monitor investigations on an ongoing basis to ensure compliance with this policy.
5. Upon a thorough review of, and conclusion based on, the information available, the investigator(s) shall provide a written summary description of the investigation, findings, including rationale, list of witnesses, information provided, a credibility assessment of all parties involved, and other information gathered to the Title IX Coordinator.
6. The Title IX Coordinator will provide the Complainant and the Respondent will with be promptly and concurrently provided a summary of the written description of the findings investigation report in draft form without the findings along with exhibits and statements obtained during relevant evidence from the investigation concurrently, including the rationale and any sanctions, in separate communications.

 - As a general disclaimer, in the event the Complainant or Respondent is a Third Party (i.e. not an MCW faculty or staff member, or student), his/her degree of cooperation with the investigation may impact MCW’s ability to fully investigate the reported misconduct. At all times, MCW will conduct the most thorough investigation possible under the circumstances.

7. The Complainant and Respondent will be provided time to review the investigation information and respond to the Title IX Coordinator with comments made directly on the documents and up to 51 pages (one sided, single spaced, in reasonable font size) of further information about the investigation.
8. After reviewing the information provided by the Complainant and Respondent, the Title IX Coordinator or designee will determine if any amendments are needed to the investigation documentation, if further investigation is needed, and then will determine findings, sanctions and how to proceed with interim measures.
9. The Title IX Coordinator how to proceed with interim measures made will provide the findings, sanctions and status of any interim measures to the Complainant and Respondent concurrently.
10. In the event the reported misconduct is found to have occurred based on a preponderance of the evidence, the Title IX Coordinator shall work with the appropriate institutional official(s) to implement the recommended sanction(s), and shall also institute any additional measures (such as but not limited to a parking re-assignment for the Respondent) as recommended and appropriate.

D. Possible investigation outcomes include:

1. Interim or permanent measures designed to (among other things) address any hostile environment and preserve the safety of the MCW working and learning environment, and community;
2. Recommended counseling (EAP, student mental health services), recommended education and training, and/or other administrative actions deemed appropriate by MCW;
3. Sanctions of an appropriate nature for a finding of responsibility on the part of the Respondent, which are found in the institutional policies and Handbooks applicable to the individuals, and which include but are not limited to:

a. Students: administrative leave of absence, disciplinary actions including probation pursuant to the applicable student handbook, drug / alcohol testing, recommended counseling, restricted access, parking re-assignment, monitoring, no contact order(s), suspension, temporary withdrawal, and/or other educational sanctions including but not limited to expulsion.
b. Faculty: administrative leave of absence, letter of non-renewal, restricted access, monitoring, no contact orders, drug/alcohol testing, recommended counseling, parking re-assignment, monitoring, no contact order(s), and/or other sanctions as determined appropriate by MCW and in accordance with applicable institutional policies, up to and including discipline, suspension or termination for cause.
c. Staff: administrative leave of absence, recommended counseling, restricted access, monitoring, no contact order(s), drug/alcohol testing, parking re-assignment, and/or other sanctions as determined appropriate by MCW and in accordance with permitted actions under institutional guidelines, such as discipline, suspension or termination.
d. Third Party who is not an MCW faculty member, staff member or student: sanctions include but are not limited to, being reported to law enforcement and being banned from MCW premises and activities.
e. In all instances, MCW reserves the right to broaden or lessen any range of recommended sanction(s) in the event of serious mitigating circumstances or egregiously offensive behavior.

E. Appeal

1. The Complainant and Respondent may each submit an appeal to the Title IX Coordinator via email at TitleIXCoordinator@mcw.edu within seven calendar days of MCW’s provision of the investigation final report that includes the outcome and sanctions (if any) to the parties. In computing the seven-day period, the day on which MCW provides the outcome and sanction(s) (if any) shall not be included, and the last day of the seven-day period shall be included.

2. The appeal process is not a hearing or a review of the entire matter; rather, it is a review of the record and process only. Appeal decisions shall be deferential to the original investigation findings, remanding or modifying only for a clear and compelling reason. Further, any sanction(s) shall be modified only for a clear and compelling reason.

Grounds for appeals are limited to:

a. Procedural error or omission that significantly impacted the outcome and/or sanction(s) (if any) of the investigation; and/or
b. Discovery of new evidence unknown or reasonably unavailable during the investigation that could substantially impact the original finding and/or sanction(s).

3. The appealing party/ies may submit a statement not to exceed one page, single spaced in reasonable size font, setting forth the reason(s) for appeal. The appealing party/ies must submit his/her statement(s) to the Title IX Coordinator along with the notice of decision to appeal. Untimely appeal notifications, and/or any statements or portions thereof that do not comply with this section, will not be considered.

The non-appealing party shall promptly be notified of the appealing party’s appeal, and will receive a copy of the appealing party’s statement (if any). If both parties appeal, each may review the other’s statement.

4. MCW shall make every effort to conclude the appeal process

5. The appeal adjudicator will be vetted to ensure no known conflict of interest exists. The Title IX Coordinator may serve in this role, unless a known conflict of interest exists, s/he served as an investigator, or extenuating circumstances warrant. He/she may take one of three possible actions: a) dismiss the appeal as having no merit, upholding the original investigation finding(s) and any sanction(s); b) remand to the original investigator(s) for further investigation and fact-finding; and/or c) modify the finding(s) and/or sanction(s).

6. The appeal adjudicator (if not the Title IX Coordinator) shall provide a written copy of his/her finding(s) and rationale to the Title IX Coordinator for action. The Title IX Coordinator shall promptly and concurrently provide a written copy of the finding(s) to the Complainant and Respondent in separate communications.

The appeal outcome (including any sanction(s)) is final

Training
Individuals serving as investigators, the Title IX Coordinator, Title IX Deputy Coordinators, and Appeal Adjudicator(s) shall receive appropriate training (including trauma-informed training) on the issues of sex discrimination, sexual assault, domestic violence, dating violence, and stalking, and how to conduct an investigation process and appeal review that protects the safety of the MCW working and learning environments, the MCW community, and in a way that promotes accountability. The Title IX Coordinator and Title IX Deputy Coordinators’ names and contact information are provided on the MCW Title IX / Sexual Misconduct website. MCW may select and train faculty or other MCW employees or individuals to serve as an investigator(s) and Appeal Adjudicators as needed and in MCW’s sole discretion. The Complainant and Respondent will be informed separately of the identities of the investigator(s).

Retaliation Prohibited
Retaliation by or against anyone named or involved in a report, investigation, or process under this policy or Policy AD.CC.080 is strictly prohibited. Reports of retaliation should be made immediately to the Title IX Coordinator or a Title IX Deputy Coordinator.

Compliance with Institutional Policies
MCW recognizes institutional policies and/or procedures, including those provided in applicable Handbooks, and may vary in applicability depending on an individual’s status as faculty or staff member, student or Third Party. Regardless of any policy or Handbook provision or process to the contrary, reports of sex discrimination and responses thereto will be handled under Policy AD.CC.080 and this policy.

Attachments
Not Applicable

Policy Revisions

Effective Date: 07/02/2015
Revision History: 07/09/2015, 10/15/2015, 12/18/2015, 04/01/2016, 11/03/2016, 07/01/2018
Supersedes Policy: N/A
Review Date: N/A
Approved By: /S/ John R. Raymond, Sr., MD, President and CEO Medical College of Wisconsin