Resolution Processes for Gender Discrimination and Harassment Allegations

The University will seek to complete the appropriate resolution process as promptly as possible, consistent with the need to conduct sensitive and informed fact-gathering to ensure an equitable and unbiased resolution. This Policy designates reasonably prompt timeframes for the major stages of the investigation and resolution process (typically set forth in business days), but the University may extend any timeframe in this Policy for good cause. An extension may be required for good cause to ensure the integrity and thoroughness of the investigation; to comply with a request by law enforcement; in response to the unavailability of the parties or witnesses; or for other legitimate reasons, such as intervening breaks in the University calendar, University finals periods, the complexity of the investigation, the volume of information, number of witnesses, length of the written record, and/or the severity and extent of the alleged misconduct.

While requests for delays by the parties may be considered, the University cannot unduly or unreasonably delay the prompt resolution of a report under this Policy. Reasonable requests for delays by the parties may serve to extend the time period for resolution of the report. The Title IX Coordinator has the authority to determine whether an extension is required or warranted by the circumstances. The unavailability of a party’s advisor or conflicts in the advisor’s schedule will not be presumed to constitute good cause and will be subject to a fact-specific review of the circumstances. The University will notify the parties in writing of an extension of the timeframes for good cause, the reason for the extension, and the length of the extension.

Under a Level Two Grievance Process, parties are notified that they may have an advisor of their choice who may be, but is not required to be, an attorney.

Advisor Requests must be submitted to the Title IX Coordinator or Hearing Officer at least 48 hours before the Individual Meeting. It is the responsibility of the person requesting the advisor to ensure the advisor attends the Individual Meeting or Hearing. If an advisor does not appear at the scheduled date and time of the Individual Meeting or Hearing, the Individual Meeting or Hearing will continue without the participation of the advisor. Although an advisor may be requested to attend the Individual Meeting or Hearing, they are not required or obligated to attend or participate. Retaliation against any requested advisor is strictly prohibited. The Title IX Coordinator or Hearing Officer will assess requests by a party for more than one advisor and retains full discretion whether to approve such requests.

The advisor is not permitted to directly address anyone other than their advisee, at any time, including asking any question or speaking on behalf of their advisee. Should an advisor violate the terms of this role they will be asked to leave by the Hearing Officer or by the Hearing Chairperson. The Complainant and Respondent must ensure that their advisor complies with this Policy.

Whenever possible, the advisor will receive written information prior to the Individual Meeting or Hearing regarding their participation in the Individual Meeting, resources, retaliation, and nondisclosure information.

The Title IX Coordinator is responsible for an Initial Review of disclosures and/or reports of potential violations of this Policy. The goal of this Initial Review is to provide an integrated and coordinated response to reports of Prohibited Conduct. The Initial Review will consider the nature of the report, the safety of the individual and of the campus community, and the Complainant’s expressed preference for resolution. The Initial Review will proceed to the point where a reasonable assessment of the safety of all involved parties and the community can be made. The Title IX Coordinator must seek to ensure that no acts of sex discrimination are denying equal access to its education program or activity.

In order to protect the safety of the campus community and ensure equal access to the University’s education program or activity, the Title IX Coordinator may need to proceed with an investigation even if a Complainant specifically requests that the matter not be pursued. The Title IX Coordinator may also initiate an investigation of potential violations of this Policy even absent an identified Complainant or Respondent and even if a report has been withdrawn. In such a circumstance, the Title IX Coordinator will take into account the Complainant’s articulated concerns, the safety of the campus community, fairness to all individuals involved, and the University’s obligations under Title IX. The Title IX Coordinator will balance the Complainant’s request against the following factors in reaching a determination on whether the request can be honored:

• The totality of the known circumstances;
• Whether the Respondent has a history of violent behavior or is a repeat offender;
• The scope of the alleged discrimination, including information suggesting a pattern, ongoing discrimination, or the conduct is alleged to have impacted multiple individuals;
• Whether the incident represents escalation in unlawful conduct on behalf of the Respondent from previously noted behavior;
• The increased risk that the Respondent will commit additional acts of violence;
• Whether the Respondent used a weapon or force;
• The age and relationship of the parties, including whether the Complainant is a minor and whether the Respondent is an employee; and
• Whether the University possesses other means to obtain relevant evidence such as security footage;
• Whether available information reveals a pattern of perpetration at a given location or by a particular group;
• Fairness considerations for both the Complainant and the Respondent;
• The University’s obligation to provide a safe and non-discriminatory environment and equal access to its education program or activity;
• The severity of the alleged misconduct or sex discrimination, including whether, if established, it would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the discrimination and prevent its recurrence;
• Whether the University could end the alleged misconduct or discrimination and prevent its recurrence without initiating an informal resolution or grievance procedure; and
• Any other available and relevant

If, after considering these and other relevant factors, the Title IX Coordinator determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents the University from ensuring equal access on the basis of sex to its education program or activity, the Title IX Coordinator may initiate a Complaint.

Based upon the Title IX Coordinator’s Initial Review, if a Complaint is issued, the University will proceed with one of the following options:

1. Proceed with Informal Resolution. This will always require the parties’ voluntary written consent to participate in this form of a resolution process.
2. Proceed under the Level 1 Grievance Process.
3. Proceed under the Level 2 Grievance Process (only in complaints alleging sex-based harassment involving a student Complainant or a student Respondent).
4. If outside the scope of this Policy, refer the matter to another appropriate office or department for resolution under the relevant policy.
   1. In the event that a report alleges violations of both the St. John Fisher University Code of Conduct and Title IX sex discrimination (in accordance with amnesty for alcohol and drug use as specified in this Policy), the allegations will be separated and documentation will be appropriately redacted to preserve the privacy of individuals involved. The charges relevant to the Code of Conduct will be referred to the Student Conduct Office or Office of Human Resources for resolution.
5. If the Complainant expresses a preference to share information, but not pursue any action at this time, and the Title IX Coordinator finds that no threat to an individual or the campus community exists, the disclosure will be documented with the Title IX Coordinator only.

In certain instances, the University may dismiss a Complaint and not proceed further with an Informal Resolution Process or Title IX Grievance Process. In the event that the University dismisses a Complaint, it still retains the right to take all appropriate actions and processes under any other code of conduct or policy, including the Employee Handbook.

The University may dismiss a Complaint, but is not required to do so, if at any time during the investigation or hearing processes or Informal Resolution Process: (i) the Complainant notifies the Title IX Coordinator or appropriate designee in writing that the Complainant would like to withdraw the Complaint or any of its allegations and the Title IX Coordinator or designee declines to initiate a complaint, and the alleged conduct, even if proven would not constitute misconduct or Prohibited Conduct, (ii) the Respondent is not or no longer participating in the University’s education program or activity or a University employee, (iii) the University is unable to identify the Respondent after taking reasonable steps to do so; (iv) the University determines the conduct alleged in the Complaint, even if proven, would not constitute Prohibited Conduct under Title IX; or (v) specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Complaint or its allegations, including if the University is unable to identify the Respondent after taking reasonable steps to do so.

Right to Appeal the Dismissal of a Complaint

The Complainant will receive written notice of the dismissal of a Complaint and decision not to proceed further with a Resolution Process, which will state the University’s reasons for the action. If the Complaint is dismissed after the Respondent has been notified of the allegations, both parties will be notified. Either party may appeal the dismissal of a Complaint. Within five (5) business days after the written notice of the dismissal, an appeal may be submitted in writing to the Vice President of Student Affairs and Dean of Students, Campus Center 206, or mthornton@sjf.edu in cases involving a student Respondent. In any case involving an employee Respondent, the appeal must be submitted to the Assistant Vice President of Human Resources or Provost, as designated by the Title IX Coordinator.

The limited grounds for an appeal of the dismissal of a Complaint are as follows:

• A procedural irregularity affected the outcome of the dismissal determination;
• New evidence that was not reasonably available at the time of the dismissal determination that could have affected its outcome;
• The Title IX Coordinator or the person who made the dismissal determination had a conflict of interest or bias against an individual party, or for or against Complainants or Respondents in general, that affected the outcome.

If a Dismissal is appealed:

• Both parties will be notified of the appeal, including a notice of allegations if the notice was not previously provided to the Respondent;
• Appeal procedures will be implemented equally for the parties;
• The trained decisionmaker for the appeal will not have had a role in an investigation of the allegation or the dismissal of the complaint;
• Both parties will have a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and
• The parties will be notified of the result of the appeal and the rationale for the result.

If a Complaint is dismissed, the Title IX Coordinator will still assess appropriate prompt and effective steps to ensure that Prohibited Conduct does not occur or continue.  The Title IX Coordinator will offer Supportive Measures to the Complainant as appropriate.  If the Respondent is notified of the dismissal, the Title IX Coordinator will offer Supportive Measures to the Respondent as appropriate. 

If all parties voluntarily agree in writing to participate in an Informal Resolution and if the University determines that the particular Complaint is appropriate for such a process, the University may facilitate an Informal Resolution, including mediation, to assist the parties in reaching a voluntary resolution. Before the parties agree to participate in an Informal Resolution, the University shall inform them in writing of the extent of confidentiality parameters that will apply to the process and whether any statements or evidence discussed or exchanged during the process may be used in a Title IX Grievance Process. Upon its completion, the result of an Informal Resolution may not be appealed by either party. An Informal Resolution is available any time up to a final decision under a Title IX Grievance Process. 

Please refer to the Policy document for additional details related to the Informal Resolution Process.

This website provides an abbreviated overview of the University’s Gender Discrimination and Harassment Policy and Procedures. For full details, refer to the Title IX Gender Discrimination and Harassment Policy [pdf]. 

The University is committed to providing a prompt, thorough, equitable, and impartial resolution of all reported alleged violations of the Policy. 

Level One Grievance Process

The University’s Level One Grievance Process applies to Complaints of sex discrimination, other than a sex-based harassment Complaint involving a student Complainant or a student Respondent.  

• Complaints of sex-based harassment involving an employee Complainant and an employee Respondent will be addressed under the University’s Level One Grievance Process.
• Complaints of sex-based harassment involving a student party will be addressed under the University’s Level Two Grievance Process.

Level Two Grievance Process

The Level Two Grievance Process applies to Complaints of sex-based harassment, as defined above, involving a student Complainant or a student Respondent.

The University has adopted two levels of grievance procedures that provide for the prompt and equitable resolution of Complaints made by students, employees, or other individuals who are participating or attempting to participate in its education program or activity, or by the Title IX Coordinator, alleging any action that would be prohibited by Title IX or the Title IX regulations.  If any provision in this Policy may be deemed to be inconsistent with the Title IX Regulations, the Title IX Rule’s requirements supersede and control the application of the University’s Title IX Grievance Process.

Throughout their participation and responsibilities in either process, the Title IX Coordinator, the investigator, the decisionmaker, the Hearing Officer, members of the Hearing Committee, or any other person designated to facilitate the Grievance Process, may not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. The Respondent is presumed to be not responsible for the alleged conduct until a determination of responsibility is made at the conclusion of the applicable Grievance Process.  The University will treat Complainants and Respondents equitably throughout the Grievance Process.

This is an overview of the components of the Sexual Misconduct Committee Hearing process. For complete details, refer to the Title IX Gender Discrimination and Harassment Policy [pdf].

Investigation

The University will designate the Title IX Coordinator, the Assistant Vice President for Human Resources, or an appropriately trained University representative or outside party as the investigator(s).

The University will conduct a prompt and equitable investigation to gather relevant but not otherwise impermissible evidence to the determination, by a preponderance of the evidence, whether Prohibited Conduct occurred. The investigation will be impartial and will be conducted by trained individuals who have no actual bias or conflict of interest against any party or against Complainants or Respondents generally. The University has the discretion to have the investigation conducted by either a trained internal or external investigator.

In the investigation process, a Complainant and Respondent should expect that:

• The investigation will be prompt, and equitable;
• The investigation will include interviews with all reasonably available involved parties, including witnesses and other persons with first-hand knowledge;
• The Complainant and Respondent shall have an equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
• There will be a complete review of any related, relevant documents;
• The disclosure of facts to parties and witnesses will be limited to what is reasonably necessary to conduct a fair and thorough investigation;
• Participants in the investigation will be advised of the importance of maintaining privacy throughout the process, but the University shall not restrict the ability of each party to discuss the allegations under investigation or to gather or present relevant evidence;
• At any time during the investigation, the investigator will make recommendations to appropriate University officials for Supportive Measures for the Complainant, Respondent, and/or witnesses;
• An investigation will result in a written report that, at a minimum, includes a statement of the allegations, the issues, and a summary of the information being forwarded to the decisionmaker, Hearing Office or Hearing Committee; and
• The University will inform the parties at regular intervals of the status or progress of the process.

The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests with the University, not the Complainant and Respondent. The University cannot access, consider, disclose or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity or assisting in that capacity, and which are made and maintained in connection with the provision to the party, unless the University obtains that party’s voluntary, written consent to do so.

Review of Case Materials

The University will provide each party with an equal opportunity to access the evidence that is relevant to the allegations and not otherwise impermissible, in the following manner:

• The University will provide an equal opportunity to access an accurate description of the relevant and not otherwise impermissible evidence. The University will provide the parties with an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party;
• The University will provide a reasonable opportunity to respond to the evidence or to the accurate description of the evidence; and
• The University will take reasonable steps to prevent and address the parties' unauthorized disclosure of information and evidence obtained solely through the Grievance Procedures. 

Live Hearing or Individual Meetings

Relevant to a Level Two Grievance Process: 

For sex-based harassment complaints involving an employee party and a student party, at the conclusion of the investigation phase, the parties will proceed to Individual Meetings conducted by the Hearing Officer or Hearing Committee. 

For sex-based harassment complaints involving two or more student parties, at the conclusion of the investigation phase, the parties will proceed to a Live Hearing.    

Procedure for Determining Responsibility

Level One Grievance Process 

Following an investigation and evaluation of all relevant and not otherwise impermissible evidence, the University will:

• Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred;
• Notify the parties in writing of the determination whether sex discrimination occurred including the rationale for such determination, and the procedures and permissible bases for the Complainant and Respondent to appeal, if applicable.

The University will not impose discipline on a Respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the Grievance Procedures that the Respondent engaged in prohibited sex discrimination.

In order to determine responsibility regarding any alleged violations, the decisionmaker will review all relevant information (inculpatory and exculpatory) and not otherwise impermissible evidence presented through the investigation. The decisionmaker will not consider a Respondent’s previous findings of responsibility when determining responsibility in the current matter. The determination of responsibility for a violation of this Policy and/or the student code of conduct will be made if in the judgment of the decisionmaker, that the conduct was more likely than not to have occurred. 

Level Two Grievance Process

The Hearing Officer or Committee will use the preponderance of the evidence standard of proof to determine whether sex-based harassment occurred The University will provide the determination whether sex-based harassment occurred in writing to the parties simultaneously.

The written determination must include:

• A description of the alleged sex-based harassment;
• Information about the policies and procedures that the University used to evaluate the allegations;
• The Hearing Officer or Hearing Committee’s evaluation of the relevant and not otherwise impermissible evidence and determination whether sex-based harassment occurred;
• When the Hearing Officer or Hearing Committee finds that sex-based harassment occurred, any disciplinary sanctions the University will impose on the Respondent, whether remedies other than the imposition of disciplinary sanctions will be provided by the University to the Complainant, and, to the extent appropriate, other students identified by the University to be experiencing the effects of the sex-based harassment; and
• The University’s procedures for the Complainant and Respondent to appeal.

The Hearing Officer or Hearing Committee does not consider a Respondent’s previous findings of responsibility when determining responsibility in the current matter.

Potential Outcomes

When there is a finding of responsibility, University remedies and/or sanctions will be assigned by the appropriate University administrator, Hearing Officer, or Committee. These may include, but are not limited to: written warnings, disciplinary probation, suspension, expulsion, termination, as well as educational assignments and referrals. The complete list of University sanctions applicable to students is listed on the Student Code of Conduct website.

Disciplinary action and sanctions for staff employees and faculty members will be determined by the Assistant Vice President of Human Resources, the employee’s manager, and/or higher administration. Sanctions against a faculty member are subject to the Faculty Statutes as applicable.

If a student Respondent is suspended, the student may not re-enroll at the University for a prescribed period of time. Before re-enrollment at the University, the student will need to meet with the Title IX Coordinator to discuss the student’s progress in completing any assigned sanctions associated with the suspension and eligibility to resume enrollment at the University. Upon any re-enrollment, the student will be placed on Disciplinary Probation for the remainder of the academic career. The student’s transcript will reflect “W” (withdrawn) for all courses in which the student was enrolled for the semester. Tuition, room and board charges, as applicable, will be prorated based on the University Refund Policy. The date used to determine any refund is the date of this finding or the date of any interim action related to this finding, whichever date is earlier. Persons suspended from the University are considered to be Persona Non Grata (PNG) from the University until any successful re-enrollment at the University.

Both parties have the right to one level of appeal. Requests for an appeal should be made by completing an Appeal Request Form.

The Appeal Request Form must be received within five (5) business days of the delivery of the written notification of outcome letter.

When requesting an appeal, the appealing party must demonstrate in writing that one or more of the following applies to their situation:

• Procedural irregularity that affected the outcome of the matter (i.e. the University’s failure to follow its procedures);
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
• The Title IX Coordinator, the investigator(s), or decision-maker(s) had a conflict of interest or bias against for or against an individual party, or for or against Complainants or Respondents in general, that affected the outcome of the matter; or
• The sanction imposed was not in keeping with the gravity of the

Both parties are notified when an appeal is requested and notified again within five (5) business days if the appeal request has been granted. From the time of the notification that the appeal is requested, parties have five (5) business days to review and respond to the request.

An impartial reviewer, free from conflicts of interest, reviews the Appeal Request Form.  The reviewer will be an individual who has not served as an investigator or decision-maker in the proceeding. The reviewer can dismiss the appeal for failing to state grounds for appeal, affirm the original findings, amend the original sanctions, send the case back to the decisionmaker, or convene a new decisionmaker. In cases where sanction(s) are amended or rejected, a rationale will be specified. The Respondent and Complainant will be notified simultaneously of the written outcome of the appeal request within a prompt timeframe, reasonable under the circumstances. The reviewer does not rehear cases.

The determination regarding responsibility becomes final either on the date the University provides the parties with the written notification of the outcome of the appeal or, if no party appeals, the sixth business day following the delivery of the written notification of the outcome.

For those crimes of violence, as defined by the Clery Act, that St. John Fisher University is required by federal law to include in its Annual Security Report, the transcripts of students found responsible after a hearing and appeal, if any, shall include the following notation:

• “Suspended after a finding of responsibility for a code of conduct violation”
• “Expelled after a finding responsibility for a code of conduct violation”

Additionally, the transcript of any student who withdraws from the University following the receipt of a notice of investigation and declines to complete the disciplinary process shall include the following notation:

• “Withdrew with conduct charges pending”

Transcript Notation Review Process

When a student is suspended from the University, a notation has been placed on their transcript and the student may request a review of the notation for removal.

To request a review, the student must submit a letter to the Title IX coordinator requesting the removal of the notation which also includes the following information:

• A personal statement detailing the student’s time away from the University and outlining both positive contributions the student has made to the community and personal growth.
• Two (2) character reference letters. (Letters from family members are not acceptable.)

The Title IX coordinator will review the request and may require additional information. Following a review of the request, the Title IX coordinator may subsequently require speaking to or meeting with the student regarding the request before making a decision.

If a notation is removed from a transcript this does not erase the student's conduct history; it modifies the student's transcript upon the request being granted. In no case shall the transcript notation for suspension be removed prior to one year after the conclusion of the suspension. Notations for expulsion shall not be removed from transcripts.