Discrimination/Harassment Formal Resolution Process

The Office of Institutional Compliance/Title IX or Office of Human Resources as applicable is responsible for overseeing and coordinating the formal resolution process by issuing written notice of allegation, reminders, notice of completion of the investigation, answering questions about the investigation process, checking in with the parties and the assigned investigator, providing interim measures and resources to the parties, and providing parties with Notice of Outcome, the Final Investigation Report, and Written Notice of Final Outcome. The investigator who is assigned to conduct the investigation is responsible for gathering relevant evidence, writing an investigative report that fairly summarizes all relevant evidence, and making a determination as to whether it is more likely than not that a violation of policy 1005 occurred and if so, determining appropriate sanctions and remedies.

• Every effort will be made to complete the formal resolution process (excluding any appeals, pauses for exploration of informal resolution, federal and state holidays and days CNU is not open for regular business operations) no later than 90 business days after Written Notice of Allegation is issued to the parties. Parties will be informed in writing of any extensions of timeframe and the rationale for such extensions. Parties may also request extensions by contacting the Office of Institutional Compliance/Title IX or Office of Human Resources, as applicable. If an extension is granted it will be extended to both parties and parties will receive written notice of the extension.
• Meetings and interviews conducted by external investigators are conducted over the phone or using video conferencing technology.
• Evidence and information are shared with the complainant, respondent, and their advisors of choice using a secure electronic platform such as Google Drive.
• The complainant and respondent may have an advisor of choice with them at all meetings and proceedings for the investigation complaint.

Formal Resolution Phases

The formal resolution process is divided into distinct phases:

• Phase 1 Evidence collection
• Phase 2 Evidence Review and Response
• Phase 3 Draft Investigation Report Review and Response
• Phase 4 Final Investigation Report with Determination of Outcome

Formal Resolution Initiated by the University

In situations where there is an immediate threat to the physical health and safety of the complainant or other individual and the complainant does not wish to pursue formal resolution, the university may direct the Director or Assistant Director of the Office of Institutional Compliance/Title IX or as applicable the Director or Assistant Director of Human Resources to initiate the formal resolution process even if the complainant does not wish to initiate the process. In such situations, the Office of Institutional Compliance/Title IX and Office of Human Resources Personnel do not serve in the role of the complainant. The complainant maintains their role as the complainant and will be notified of the decision of the university to initiate the process and will retain all rights to participate in the process.

CNU will offer appropriate, reasonably available, temporary interim measures for complainants, respondents, and other individuals involved in reports after receipt of a report and/or during an informal or formal resolution process. Interim measures may include but are not limited to restrictions on contact between parties or temporary changes to work schedule, location, or duties. Interim measures may also include temporary restrictions for students to programs and activities or administrative leave with or without pay for employees. Interim measures will be reassessed on an ongoing basis. The Office of Institutional Compliance/Title IX will collaborate with appropriate university officials on the coordination and implementation of interim measures. Some interim measures may be implemented as remedies at the conclusion of a formal resolution process.

If the formal resolution process will be used to determine an outcome for a report alleging discrimination and harassment under Policy 1005 the Office of Institutional Compliance/Title IX will issue written notice of allegation to the respondent and the complainant. The Office of Institutional Compliance/Title IX will make reasonable efforts to contact and discuss interim measures, resources, and these procedures with the respondent and complainant including encouraging each party to schedule an appointment to meet with the Office of Institutional Compliance/Title IX to review procedures and interim measures. During the formal resolution process, the Office of Institutional Compliance/Title IX will contact the complainant and respondent at regular intervals to check in and provide information about interim measures.

• If other allegations are identified for investigation after the written notice of allegation has been issued, notice of additional allegations must be provided to the parties whose identities are known.

Notification of allegation generally states and includes:

• The date, time, and location of the alleged incident and the names, if known, of the complainant and respondent.
• A description of the incident(s) that is(are) the focus of the formal resolution and access to the full report submitted by the complainant to the Office of Institutional Compliance/Title IX so that the respondent and complainant have full access as soon as possible and before they would be expected to make statements for an investigation or agree to participate in the alternative resolution procedure.
• The specific policy alleged to have been violated and that if other allegations are uncovered during the course of an investigation, the Office of Institutional Compliance/Title IX will send written notification of additional allegations to the parties.
• Information regarding formal resolution investigation procedures and informal resolution procedures.
• Information about reasonably available interim measures.
• The right of the complainant and respondent to bring an advisor of their choice to any meetings and proceedings, information on the role of the advisor in procedures, and how to notify the Office of Institutional Compliance/Title IX of their choice of advisor so the advisor may have access to all formal resolution materials the parties have access to.
• The presumption that no policy violation has occurred unless proven otherwise by a preponderance of the evidence and that in conducting the investigation and reaching a determination the assigned investigator serves fairly and impartially and that the Office of Institutional Compliance/Title IX oversees and conducts formal resolution processes in a fair and unbiased manner.
• The right of the respondent to inspect and review the report submitted by the complainant, before participating in an investigative interview or submitting a response.
• The name of the individual assigned to conduct the investigation.
• The equal opportunity of both parties to have sufficient time to prepare before participating in investigative interviews.
• The equal opportunity of both parties to submit evidence and inspect and review evidence submitted.
• The equal opportunity of the complainant and respondent to have 10 business days upon receipt of access to the evidence to submit a response to the evidence collected before the investigator drafts the investigation report.
• The equal opportunity of the complainant and respondent to have 10 business days upon receipt of the draft investigation report to submit a response to the investigator.
• Information on rights of appeal.
• The prohibition against retaliation for parties participating in procedures under policy 1005.
• That parties are instructed to preserve any potentially relevant evidence in any format.
• How to schedule an appointment with the Office of Institutional Compliance/Title IX to ask questions regarding the procedures and discuss interim measures.
• Notification that participation in either the formal resolution process is voluntary and that the Office of Institutional Compliance/Title IX and assigned investigator welcome and encourage participation by parties but have no mechanism to compel parties to participate or provide information.
• How to request reasonable accommodations for a disability in order to be able to participate in the formal resolution process.
• Information about applicable transcript notation for the respondent.

Transcript Notation

If a student respondent withdraws while under investigation for an allegation of discrimination and harassment, a notation will be placed on the student ’s transcript. The notation will read:

• Withdrew while under investigation for a violation of University Policy 1005

In cases where a student is found responsible for and suspended or dismissed for discrimination and harassment, a notation will be placed on the student’s transcript. Such notations will read, as applicable:

• Dismissed for a violation of University Policy 1005
• Suspended for a violation of University Policy 1005

Removal of transcript notations is governed by Policy 9045: Transcript Notation Removal Policy.

The role of the advisor of choice during the formal resolution process is to serve as a support person to the party they are serving as advisor for. The advisor of choice may speak directly with the party they are providing support for and may ask clarifying questions about policy and procedure of the Office of Institutional Compliance/Title IX and the investigator. However, an advisor of choice may not speak for the party they are supporting during the investigation of the formal complaint. The complainant and respondent may need to provide written permission for their respective advisor of choice to directly receive access to the investigation report and the evidence by contacting the Office of Institutional Compliance/Title IX at titleixic@cnu.edu and completing the “Advisor of Choice Authorization” form.

An advisor of choice may be anyone a party chooses and may be but is not required to be an attorney. An individual may choose different individuals to serve as their advisor of choice for different phases of the investigation and overall process. Each time a party changes advisors of choice during the formal resolution process, the party is asked to contact the Office of Institutional Compliance/Title IX at titleixic@cnu.edu and complete and submit the Advisor of Choice Authorization form. Generally, a witness should not be an advisor of choice.

If the allegation(s) in a report do not fall within the scope of policy 1005, the report will be dismissed. If a report, or a portion thereof is dismissed, the Office of Institutional Compliance/Title IX or Office of Human Resources will promptly send written notice of the dismissal, including the reason for the dismissal, to the complainant(s) and any parties notified of the report. If the dismissed allegations may constitute a violation of another university policy, the report may be referred to the appropriate university authority, and the parties and/or the appropriate university authority may proceed under the applicable policy and procedures.

If the conduct alleged in the formal complaint, even if true, would not constitute harassment and discrimination under Policy 1005 the report will be dismissed.

A report may also be dismissed for any of the following reasons:

• The Respondent is no longer enrolled at or employed by CNU
• The Complainant is no longer enrolled at or employed by CNU
• At the time of the incident, the Complainant was not accessing the programs and activities of CNU for employment and/or as a participant in an education program of CNU
• At the time of the incident, the Respondent was not accessing the programs and activities of CNU for employment and/or as a participant in an education program of CNU
• A Complainant notifies the Title IX Coordinator or Deputy Title IX Coordinator in writing that the Complainant would like to withdraw the report or any allegations therein
• Specific circumstances prevent CNU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Dismissal of a report is final but nothing precludes a complainant from refiling a report if new information becomes available or there is information that was not considered for the dismissal process.

The complainant(s) may request to withdraw a report at any time prior to an outcome being reached in an informal or formal resolution process by contacting the Office of Institutional Compliance/Title IX in writing or as applicable the Office of Human Resources. Withdrawal of a report may result in dismissal of the report. Once a complaint is dismissed it is closed and cannot be reopened for informal or formal resolution.

After written notice of allegation is delivered to the complainant and respondent, the assigned investigator will begin the investigation by making contact with the complainant and respondent separately. The assigned investigator is responsible for gathering information for the investigation and writing the investigation report, and will generally follow the procedures listed here. The investigator is responsible for weighing the relevant evidence and assessing credibility in order to determine by a preponderance of the evidence whether it is more likely than not that a violation of policy has occurred.

The complainant, respondent, and witnesses are invited to participate in the investigation process and may submit any information, including their own written statement, that they would like to submit for the investigation with the understanding that the complainant, respondent, and their advisors of choice will have full access to all materials collected by and submitted to the investigator for the formal complaint investigation.

The investigator will collect information and evidence which includes interviewing parties who elect to participate and collecting and accepting documentation, information, and statements from parties.The time frame for evidence collection may vary depending on the overall scope of the investigation, the volume of evidence, and the availability and responsiveness of the complainant, respondent, and witnesses to requests made by the investigator.

At any point during the investigation, the investigator in consultation with the Office of Institutional Compliance/Title IX or Office of Human Resources as applicable, may determine it is necessary to extend or reopen the periods for evidence collection and/or review. In such cases, timelines for evidence collection or review may be modified by the Office of Institutional Compliance/Title IX or Office of Human Resources as applicable. Parties will be notified of any such decisions and rationale in writing.

Voluntary participation, submission of information, and evidence

Participation in the formal resolution investigation process is voluntary for the complainant, respondent, and witnesses and CNU, as well as the assigned investigator, have no mechanism for compelling individuals to participate.

The assigned investigator is responsible for collecting evidence for the investigation and does not have a mechanism for compelling individuals or agencies to share documents, video, and audio that may be relevant to the investigation of a report including but not limited to medical reports, educational records, correspondence (either electronic or mailed) that may have taken place between parties involved, surveillance video, police reports, personal text messages, phone records, other electronic communication, pictures, video, maps, room layouts, etc. If the assigned investigator or the Office of Institutional Compliance/Title IX or Office of Human Resources is unable to obtain such information, parties who wish to include any such information may submit it directly to the investigator.

Participation of witnesses-collection of witness statements and documents

During the investigation all witnesses are treated as incident witnesses who are invited to share any information they have and to represent their own and not another party’s perspective. Incident witnesses are individuals who are believed to have information about the incident(s) that is (are) the focus of the formal resolution investigation. Generally, the investigator will identify incident witnesses to contact for the investigation of the report. The complainant and respondent may also identify witnesses. However, such witnesses will not be classified by the investigator as “complainant witnesses” or “respondent witnesses” and instead will be considered incident witnesses. The complainant and respondent may also elect to submit statements they have gathered independently from witnesses for the investigation. The statements may be classified as incident witness statements and the investigator may still attempt to make contact with the incident witness for information gathering purposes. While the investigator will make reasonable attempts to reach out to all potential witnesses, there is no mechanism to compel witnesses to participate. Generally, a witness should not be an advisor of choice.

All evidence collected during the information/evidence collection period will then be made available to the complainant and respondent and their respective advisors of choice for review for a period of 10 business days via a secure electronic platform such as Google Drive.

The complainant and respondent will each have until the conclusion of the 10-business day period to submit a written response to the evidence directly to the investigator. The investigator is not required to accept late submissions.

Upon receipt of timely responses, the investigator will determine whether evidence collection and review should continue or whether to proceed to writing the investigation report. If evidence collection and review will continue, the investigator will notify the parties of the continuation.

The investigator will then write the draft investigation report. Upon completion of the draft investigation report, the investigator will make the draft investigation report available to the complainant and respondent and their respective advisors of choice via the secure electronic platform being used for the investigation for review and response. The complainant and respondent will each have until the conclusion of the 10-business day period to submit a written response to the draft investigation report directly to the investigator. The investigator is not required to accept late submissions.

Upon receipt of timely responses, the investigator will determine whether investigation activity should continue or if the draft investigation report can be finalized to include a determination. If investigation activity continues, the investigator will notify the parties of the continuation.

The draft investigation report will contain a summary of the relevant evidence but will not contain a finding.

After receiving timely responses to the draft investigation report the investigator will objectively and fairly weigh all evidence in order to determine, by a preponderance of the evidence, whether it is more likely than not that a violation of policy has occurred and only if the determination is that a violation of policy has occurred, to impose sanctions and remedies. The investigator will determine the outcome in a fair, impartial, thorough, and efficient manner. There is no set time frame for this phase. Once the investigator has reached a determination, the investigator will provide in writing to the Office of Institutional Compliance/Title IX, the final investigation report detailing the determination, rationale, the evidence used in support of the determination, the evidence disregarded, credibility assessments, and any sanctions within ten (10) business days of the conclusion of finalizing the investigation report. The decisionmaker may request an extension and the parties will be notified of the extension.

The Final Investigation Report contains:

A description of the alleged policy violation(s) and the policy(s) allegedly violated;

• A description of the procedural steps taken by CNU from the receipt of the report to the determination, including any and all notifications to the parties, interviews with the parties and witnesses, site visits, and methods used to gather evidence.
• Finding of each alleged policy violation and the findings of fact that support the determination(s);
• Conclusions regarding the application of the relevant policy to the facts at issue;
• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility;
• Any sanctions issued that CNU is permitted to share according to state or federal law;
• Any remedies provided to the complainant designed to ensure access to CNU’s educational or employment programs or activities to the extent CNU is permitted to share according to state or federal law. (This information is normally not shared with the respondent unless the remedy directly relates to the respondent.);
• Information on when the determination of the decisionmaker is considered final; and
• The procedure and permissible bases for any available appeal for either party.

Notice of Outcome

The Office of Institutional Compliance/Title IX or Office of Human Resources as applicable, will provide written notice of outcome to the parties via email. The notice will include secure electronic access to the final investigation report, instructions for submitting an appeal including deadline for submission of the appeal, and the date that, absent an appeal, the investigator’s determination becomes final.

Sanctions and Remedies

Sanctions

Sanctions will only be imposed after a determination of responsibility and will depend on the facts and circumstances of each particular situation, the frequency and severity of the offense, and any history of past misconduct. Sanctions may include penalties up to and including dismissal for students and dismissal from employment for employees.

Sanctions for Students are listed in the Student Handbook and may include but are not limited to disciplinary probation, deferred sanction, restrictions, loss of and/or delay of privileges, educational and reflective experiences, fees/fines and/or restitution, suspension, dismissal.

Sanctions for Instructional, Administrative Professional, and Adjunct Faculty are listed in the applicable section of the University Handbook and may include but are not limited to admonition, written warning, suspension, dismissal.

Sanctions for Classified and Wage staff are listed in Virginia Department of Human Resource Management Policy 1.60 Standards of Conduct and may include, but are not limited to, verbal warning, written warning, suspension, dismissal.

Remedies

Remedies may be provided in addition to any sanctions as determined by the investigator that are designed to preserve or restore equal access to the university’s education programs and activities, including employment, for the complainant. The Office of Institutional Compliance/Title IX oversees effective implementation of remedies.

Once the Notice of Outcome with access to the final investigation report has been provided, both parties have seven (7) business days from the date notice is received into the party’s email account to file an appeal.

An appeal of the determination of the decisionmaker is available only based on one or more of the following grounds:

• Procedural irregularity that affected the outcome of the matter; and/or
• New evidence that was not reasonably available at the time the determination regarding responsibility was made, that could affect the outcome of the matter; and/or
• Office of Institutional Compliance/Title IX staff, Office of Human Resources staff, and/or investigator had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

A request for an appeal must be submitted in writing to the Office of Institutional Compliance/Title IX or Office of Human Resources, if applicable, by the deadline stated in the notice of outcome and must set forth the grounds upon which the appeal is based and the evidence supporting the appeal.

If a party files a timely appeal, the Office of Institutional Compliance/Title IX or Office of Human Resources, if applicable, will promptly notify the other party in writing and provide a copy of the appeal. The non-appealing party may, but is not required to, submit a written response regarding the appeal within five (5) business days from receipt of the copy of the appeal. At the expiration of the deadline for the non- appealing party’s written response, the Office of Institutional Compliance/Title IX or Office of Human Resources, as applicable shall confirm that the appeal and written response, if any, is timely and shall forward it and any written response to the appeal officer within 5 business days of receipt. If an extension beyond 5 business days is necessary, all parties will be notified in writing of the expected time frame. The appeal officer will be a trained and qualified individual who has not had any previous involvement with the formal complaint.

If adequate grounds for appeal have been stated, the appeal officer will consider the merits of the appeal. In considering the merits of the appeal, the appeal decisionmaker may review any pertinent materials in the record and meet with the parties and witnesses as needed (meetings may be conducted over the phone or using video conferencing technology). Any information included in the appeal that does not support one of the permissible grounds for appeal shall not be considered in the appeal process.

The decision of the appeal officer shall be final. The decision and the rationale for the decision shall be provided in writing to the Office of Institutional Compliance/Title IX or Office of Human Resources as applicable who will then make it available to both parties via a secure electronic platform such as Google Drive within 5 business days of having received the decision from the appeal officer.

The appeal officer will make every effort to complete their work within 20 business days of having received the appeal. However, depending on the volume of information produced and that the appeal officer maker must review in order to determine an outcome, it may take longer. If an extension beyond 20 business days is necessary, all parties will be notified in writing of the extension.

If an appeal is not filed within the appeal period, the determination of the investigator becomes final and is not subject to further review.

Any sanctions imposed by the investigator are stayed during the appeal process.

The decision of the appeal officer is final.