Complaint Procedures

SEXUAL HARASSMENT AND ASSAULT-STUDENT PROCEDURES

DEFINITION OF TERMS

1.  Sexual Harassment

As defined by Title IX, unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature.

a.  Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment or education; or

b.  Submission to or rejection of such conduct is used as the basis for making employment or educational decisions about a person; or

c.  Such conduct has the purpose or effect of substantially and unreasonably interfering with an individual's work or academic performance or creating an intimidating, hostile or offensive working or educational environment. For such conduct to constitute sexual harassment in the teaching context, the behavior must also be persistent, pervasive, and not germane to the academic subject matter and affect a student’s class participation, or ability to participate in or benefit from an education program, opportunity or activity, or create an intimidating, threatening or abusive educational environment.

d.  Sexual assault/sexual violence refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.  Sexual harassment shall also be defined to include retaliation against an individual for reporting sexual harassment or cooperating in a sexual harassment investigation.

2.  Sexual Violence

Sexual violence is a form of Sexual Harassment. Sexual Violence can include rape, sexual assault, sexual battery, and sexual coercion.

3.  Sexual Assault

Physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent.

4.  Complainant

Person making a written or oral allegation of violation of Title IX or the Anti-Discrimination Policy.

5.  Respondent

For the purpose of these procedures, a student who is alleged to have violated the University’s Policy Prohibiting Sexual Harassment.

6.  Report or Complaint

Informal notification of an alleged incident of sexual harassment. The University does not view a report or complaint as a formal grievance and will not result in unwanted formal or legal action. It can be anonymous, and is confidential.

If the complainant requests confidentiality or asks that the complaint not be pursued, the University should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the University should inform the complainant that its ability to respond may be limited.

7.  Formal Grievance

Formal notification to the Office of Student Affairs and/or the Title IX Administrator, or the Gunnison Police Department will initiate a formal investigation by the University and may result in adjudication.

Based upon the victim's preference, a grievance filed with the Gunnison Police Department may be held confidential or be provided to the University for review.

8.  Hostile Environment

Harassing conduct that is sufficiently severe, pervasive/persistent and patently/objectively offensive that it substantially interferes with the conditions of education or employment, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.

9.  Stalking

Stalking is a repetitive pattern of unwanted, harassing, following or threatening behavior committed by one person against another.  Stalking may also take the form of, but is not limited to, harassing telephone calls, computer communications, letter-writing, etc.

10.  Retaliation

The University prohibits and will not tolerate retaliation against any person who opposes or reports a discriminatory practice which is forbidden by law or this policy or who has filed a grievance, testified, assisted or participated in any manner in an investigation or proceeding conducted under this policy.  Acts of retaliation may be the subject of a complaint or grievance under this policy.  Retaliation may include intimidation, threats or harassment, whether in person or via electronic means.  Retaliation should be reported promptly to the Office of Student Affairs or Security Office or the Gunnison Police Department and may result in disciplinary action independent of and in additions to any sanction imposed in response to the underlying allegations of sexual harassment.

11.  Preponderance of the Evidence

Just enough testimony and evidence to make it more likely than not that the fact sought to be proven is true. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.

ADJUDICATION PROCESS

Any person may file a complaint against a student for violations of the Standards of Conduct, including violations of the Sexual Harassment Policy.  This procedure applies to any allegation of sexual harassment, sexual assault, sexual misconduct, sexual exploitation, and/or sexual exposure by a student, regardless of where the alleged violation occurred.  For the purpose of this procedure, the Respondent must have been registered or enrolled at the University at the time of the alleged violation (including during an academic recess), and at the time that the complaint is made to the University.

1.  Where to File a Complaint

  • Complaints about Student Behaviors:  All complaints alleging sexual harassment or retaliation committed by students should be submitted to the Office of Student Affairs, 301 Taylor Hall, 970.943.2011.
  • Complaints about Employee or Third Party Behaviors:  All complaints alleging sexual harassment or retaliation committed by employees and/or third parties should be submitted to the Director of Human Resources, 321 Taylor Hall.

TITLE IX ADMINISTRATOR

Whenever a complaint is received, the Title IX Administrator will be advised of the complaint and may assist in the investigation or resolution of the complaint as directed by the School.  The Title IX Administrator is:

Chris Luekenga
301 Taylor Hall
cluekenga@western.edu
970.943.2616

Office of Student Affairs:
970.943.2011

1.  Deputies:

  • Human Resource Director
  • Director of Residence Life
  • Assistant Athletic Director

2.  Responsibilities: Compliance of sexual harassment policies for matters involving students, including training, education, communication, may assist in the investigation and administration of grievance procedure for all complaints against students.

EFFECT OF CRIMINAL PROCEEDINGS

Because certain acts of sexual harassment may constitute both a violation of School Standards of Conduct policy and a criminal offense, the University encourages, but does not require students to report alleged criminal acts (e.g., sexual assault and sexual violence) promptly to appropriate law enforcement authorities. The standards for findings violations of criminal law are different from the standards for finding a violation of the University’s.

STANDARD OF PROOF

The standard of proof is the amount of evidence needed to establish a violation of policy has occurred.  In the adjudication of student conduct issues, the University uses a “preponderance of evidence” standard, which means that the evidence demonstrates that it is more likely than not the alleged conduct or policy violation has occurred.

IMMEDIATE RESPONSE

Depending on the nature of the complaint, the University reserves the right to take any and all interim steps it deems necessary to protect the Complainant, witnesses, or the Respondent.  Examples of these interim measures may include, but are not limited to the following:

  • Issuing “no contact” directives;
  • Issuing temporary “PNG” or  “no trespassing” directives
  • Temporarily suspending a student’s enrollment; and
  • Obtaining restraining or similar protective orders through appropriate law enforcement and judicial mechanisms

INTAKE MEETINGS WITH COMPLAINANT AND RESPONDENT

Within seven (7) school days of receipt of the complaint, the Title IX Administrator or deputy will schedule an intake meeting with the Complainant in order to provide the Complainant a general understanding of the policy, and to identify forms of support available and appropriate for the Complainant. The Title IX Administrator or Deputy will also seek to determine whether the Complainant wishes to pursue adjudication through the University’s Standards of Conduct.

Title IX Administrator or Deputy will schedule an intake meeting with the Respondent within seven (7) school days following the meeting with the Complainant in order to provide the Respondent a general understanding of the policy, and identify forms of support available to the Respondent. Following these initial meetings with the Complainant and Respondent, the Title IX Administrator or Deputy may conduct additional investigation by meeting with other individuals involved and witnesses. Any such investigation will normally be completed within 15 school days following the Title IX Administrator or Deputy intake meeting with the Complainant.

If the Complainant does not wish to pursue adjudication or requests confidentiality, Title IX nevertheless requires the University to investigate and take reasonable and appropriate action in response to the complaint.

When confidentiality is requested or the Complainant does not wish to pursue adjudication, the University’s ability to respond and resolve the matter of concern may be more limited. Further, Title IX requires the University to consider the Complainant’s request for confidentiality in the context of its commitment to provide a reasonably safe and non-discriminatory environment for all community members. Although full confidentiality cannot be guaranteed, the Title IX Administrator will advise the Complainant regarding the degree of confidentiality that may be possible, and the measures that will be taken to try to ensure this confidentiality.

INFORMAL ADJUDICATION PROCESS

A Complainant who wishes to file a complaint with the Title IX Administrator, but who does not wish to pursue Formal Adjudication, may request a less formal proceeding known as “Informal Adjudication,” as described below. Although informal, this is an adjudicative process; it is not mediation.

  • Purpose and Timing: Informal Adjudication provides an opportunity for the Complainant to provide the Title IX Administrator or Deputy with information about the subject incident, the impact of the incident, his/her wishes and expectations regarding future interactions with the Respondent, and needed support and protective measures. If approved by the complainant, the Title IX Administrator or Deputy will communicate this information to the Respondent and allow the Respondent an opportunity to respond. The Informal Adjudication Process is expected to be completed in a reasonably brief period of time, usually within 15 school days of the date the complaint is received by the Title IX Administrator or Deputy. If additional time is needed for this informal process, the Title IX Administrator or Deputy will communicate this to the Complainant and Respondent in writing, citing the reasons for the additional time and providing an estimated date of completion.
  • Outcome of Informal Adjudication: Informal Adjudication cannot result in a formal sanction involving suspension or expulsion of the Respondent. Informal Adjudication may, however, result in the imposition by the Office of Student Affairs protective measures and other appropriate actions based on the information derived from the proceedings, and any other relevant information known to the School at the time of the Informal Adjudication.
  • Election of Formal Adjudication: The University or the Complainant may, at any time prior to the conclusion of the Informal Adjudication, elect to end such proceedings and initiate Formal Adjudication instead.

FORMAL RESOLUTION PROCEDURES

The Formal Adjudication Process is utilized when a Complainant wishes to file a formal complaint with the University regarding the behavior of a student. The Formal Adjudication process, including the issuance of a written decision, should normally be completed within 60 calendar days of the Title IX Administrator or Deputies receipt of the formal complaint. If additional time is needed for this process, the Title IX Administrator or Deputy will communicate this to the Complainant and Respondent in writing, citing the reasons for the additional time and providing an estimated date of completion.

1.  Investigation and Conduct Meeting: If the Complainant notifies the University that he/she wishes to pursue Formal Adjudication during the Intake meeting, the Title IX Administrator or Deputy will conduct an investigation to determine if the charges have merit. Any such investigation will normally be completed within 15 school days following the intake meeting. If the charges have merit, the Title IX Administrator will send the violation to an adjudication meeting in accordance with the procedure outlined below.

a.  The adjudication meeting will be scheduled following the Title IX Administrator or Deputy investigation, but no later than 20 calendar days after the intake meeting with the Complainant. Any extension of this time frame requires written notification to all parties involved by the Title IX Administrator , and should only be needed for unusual circumstances or scheduling conflicts that cannot be otherwise resolved.

b.  The Title IX Administrator or Deputy will notify the Respondent in writing that an official adjudication meeting will take place. The notification will provide the Respondent with the charge(s) against him/her and set a date and time for the meeting.

c.  When appropriate, the Respondent, whether living on or off campus, may be temporarily suspended by the Vice President for Student Affairs or a designated member of the administrative staff, pending disposition of the case by the Title IX Administrator or Deputy.

d.  With the approval of the Judicial Hearing Officer or Title IX Administrator or Deputy, an advisor or support person of his/her choosing at the Respondent’s personal expense may accompany the Respondent. Such advisor may be an attorney. Since direct interaction with the Respondent involved is essential to this student’s educational relationship with the School, the advisor’s roles is limited to advising the Respondent. The advisor may not act as a representative of the Respondent, speak on the Respondent’s behalf, or participate directly in any meeting. Additionally, the advisor may not serve in a dual role in the meeting. For example, the advisor may not also serve as a witness. The Title IX Administrator or Deputy holding the meeting may consult with or choose to have the University’s Legal Counsel present at the meeting in a similar advisory capacity.

e.  In advance of the adjudication meeting, the Complainant and Respondent may each submit a list of relevant witnesses to the Title IX Administrator or Deputy. The Judicial Hearing Officer or Title IX Administrator or Deputy will make a determination as to whether a particular witness will be permitted to provide information related to the matter. If permitted, the Judicial Hearing Officer, Title IX Administrator or Deputy will arrange for witnesses to meet with them independently.

f.  Adjudication meetings associated with a complaint of sexual harassment are considered private, educational interactions between the Respondent and the University. All meetings are considered closed to anyone not directly involved in the proceedings. Admission of any other persons to the meeting shall be at the sole discretion of the hearing officer.

g.  Pertinent records, exhibits and written statements may be accepted as information for consideration. The Respondent will be allowed to review and respond to any such records the hearing officer (s) considers as the basis for the charges.

h.  The Respondent will be afforded the opportunity to present his/her own version of the incident or events by personal statement, as well as through written statements of witnesses to the incident.

i.  At the Judicial Hearing Officers sole discretion, an Adjudication meeting may be recorded. This recording is the property of the University. If such a recording exists and the Respondent wishes to obtain a copy of the recording, a request must be submitted in writing to the Vice President of Student Affairs. Once such request has been received, the Vice President of Student Affairs will follow the applicable provisions of the Colorado Open Records Act, C.R.S. §§ 24-72-200.1, et seq., to respond to the request.

j.  If information presented in the Adjudication meeting creates the need for clarification or additional investigation, or to accommodate scheduling conflicts with witnesses, the Judicial Hearing Officer may schedule additional meetings and/or continue the meeting at a later time and date.

k.  If the meeting involves more than one student offender or multiple Respondents, the Judicial Hearing Officer may permit the meeting concerning each student to be conducted either jointly or separately.

l.  The Judicial Hearing Officer may make special accommodations to address concerns regarding the personal safety, well-being, or fears of confrontation or retaliation on the part of the Respondent(s), Complainant(s), and/or other witnesses during any meetings.

m.  Formal rules of process, procedure, or evidence as established and applied in the civil or criminal justice system do not apply to the Adjudication Meeting.

n.  If the Respondent does not appear for the scheduled Adjudication Meeting, a decision may be reached taking into consideration the totality of the information related to the charges available at the time of the meeting.

o.  Unless otherwise directed in this policy and procedure, all materials and documents prepared or compiled by the Judicial Hearing Officer, Title IX Administrator or Deputy during the course of investigation and adjudicating a sexual harassment complaint hereunder shall be kept confidential to the fullest extent of the law in order to protect participants and promote candor.

p.   Decision after the Adjudication Meeting with the Respondent and consideration of all pertinent information, the Judicial Hearing Officer, Title IX Administrator or Deputy will issue a written decision. The decision, including sanctions, if any, for the Respondent, will be provided concurrently to the Respondent and Complainant. This decision will normally be provided within 15 calendar days from the conclusion of the Adjudication Meeting. If additional time is needed, the Judicial Hearing Officer, Title IX Administrator or Deputy will notify the Respondent and Complainant in writing, citing the reasons for the additional time and providing an estimated date of completion.

q.  Both the Respondent and the Complainant have the right to appeal the Judicial Hearing Officer decision. All requests for an appeal must be submitted in writing to the Office of the Student Affairs within seven (3) class days of the date of the Judicial Hearing Officer, Title IX Administrator or Deputy’s written decision. The Student Appeal Process will govern any appeals (refer to section V.C of the Student Handbook).