Employee

Title IX and Sexual Misconduct Grievance Policy

reedc — Tue, 15 Dec 2020 14:06:28 +0000

Title IX and Sexual Misconduct Grievance Policy reedc Tue, 12/15/2020 - 09:06

7-705C

Cabinet

10-23-2020

08-14-2020

Category

Diversity & Equity

Title IX Coordinator

(585) 245-5023

This policy outlines the procedures for reporting, investigating, and adjudicating allegations of discrimination under Title IX of the Educational Amendments of 1972 at �鶹��ý�Ŷ� and applies to all faculty, staff, and students at the College.

What is the purpose of the Title IX Grievance Policy?

Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access our educational programs and opportunities.

On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:

· Defines the meaning of “sexual harassment” (including forms of sex-based violence)

· Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment, and

· Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.

See, 85 Fed. Reg. 30026 (May 19, 2020). The full text of the Final Rule and its extensive Preamble are available here: http://bit.ly/TitleIXReg

Based on the Final Rule, �鶹��ý�Ŷ� will implement the following Title IX Grievance Policy, effective August 14, 2020 until July 31, 2023 and then August 29, 2024 to current day.

How does the Title IX Grievance Policy impact other campus disciplinary policies?

In recent years, “Title IX” cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, �鶹��ý�Ŷ� must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.

�鶹��ý�Ŷ� remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.

Specifically, our campus has a Student Code of Conduct, as well as additional employment policies, that establish acceptable professional behaviors and norms, and a separate Sexual Violence Response Policy that addresses the types of sex- based offenses constituting a violation of campus policy, and the procedures for investigating and adjudicating those sex-based offenses. [Note: Any Sexual Misconduct Policy that runs parallel to the Title IX Grievance Policy, such as a policy implementing New York Education Law 129-B or other state laws or policies, can only fully govern how the institution responds to violations falling outside their Title IX jurisdiction]

To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the �鶹��ý�Ŷ� Sexual Assault and Interpersonal Violence Policies and Procedures. For employees, this includes, but is not limited to, application of the Sexual Violence Response Policy as well as procedures and processes provided for in various collective bargaining agreements, as may be applicable.

The procedural elements established in the Title IX Grievance Policy under the Final Rule have no effect on and are not transferable to any other policy of the College for any violation of the Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process.

How does the Title IX Grievance Policy impact the handling of complaints?

Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section II.

Covered Sexual Harassment

Complainant

Consent

Education Program or Activity

Employee

Formal Complaint

Relevant evidence and questions

Respondent

Privacy vs. Confidentiality

Disability Accommodations

Effective Date

This policy will become effective on August 14, 2020, and will only apply to formal complaints of incidents of sexual harassment that occurred on or after August 14, 2020 or on or after August 28, 2024. For incidents that occurred between the dates of August 1, 2024- August 28, 2024, see Title IX Policy effective 8/1/2024- 8/28/2024.

General Rules of Application

Effective Date

The Title IX Grievance Policy will apply to sexual harassment alleged to have occurred on or after August 14, 2020. Incidents of sexual harassment alleged to have occurred before August 14, 2020, will be investigated and adjudicated according to the process in place at the time the incident allegedly occurred.

Revocation by Operation of Law

Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, then this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the �鶹��ý�Ŷ� Sexual Assault and Interpersonal Violence Policies and Procedures.

Non-Discrimination in Application

The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a Complainant, Respondent, or Witness. Individuals who wish to file a complaint about the institution’s policy or process may contact the U.S. Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.

Disability Accommodations

This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process. The Title IX Coordinator will consult with the Office of Accessibility Services and legal counsel in order to engage in the interactive process and provide accommodations as appropriate. The college will not affirmatively provide disability accommodations unless requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Making a Report Regarding Covered Sexual Harassment to the Institution

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by email, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Title IX Online Reporting Form: https://cm.maxient.com/reportingform.php?SUNY�鶹��ý�Ŷ�&layout_id=2

Such a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address listed for the Title IX Coordinator.

Confidential Disclosure

The following resources will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:

Office of the Dean of Students
Title IX Office
Office of Human Resources & Payroll Services
University Police

The following resources may provide confidentiality:

Counseling Services: 585-245-5716, Lauderdale Health Center,

/health/counseling_services_home

Physicians, licensed medical professionals or supervised interns when they are engaged in a physician/patient relationship: Health Services: 585-245-5736, Lauderdale Health Center, /health

College advocate from RESTORE: (800) 527-1747 (24/7 hotline)

College advocate from Chances & Changes: (888) 252-9360 (24/7 hotline)

Supportive Measures

Complainants (as defined above), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from �鶹��ý�Ŷ� regardless of whether they desire to file a complaint, as appropriate. Supportive measures are non- disciplinary and non-punitive.

As appropriate, supportive measures may include, but not be limited to:

Counseling
extensions of deadlines or other course-related adjustments
modifications of work or class schedules
campus escort services
restrictions on contact between the parties (No Contact Orders)
changes in work or housing locations
leaves of absence
increased security and monitoring of certain areas of the campus

See 85 Fed. Reg. 30401.

Emergency Removal

�鶹��ý�Ŷ� retains the authority to remove a respondent from �鶹��ý�Ŷ�’s program or activity on an emergency basis, where �鶹��ý�Ŷ� (1) undertakes an individualized safety and risk analysis and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.

If �鶹��ý�Ŷ� determines such removal is necessary, as established in the Final Rule, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal.

Complaints Involving Employees as Respondents

�鶹��ý�Ŷ� retains the authority to suspend or place a non-student employee respondent on alternate assignment during the Title IX Grievance Process, consistent with the applicable collective bargaining agreement and/or employment policies.

Alternative Resolution Option

Administrative Resolutions may be offered as a path to resolve allegations of Title IX-covered misconduct. Generally speaking, this resolution option is less time intensive than a live hearing, while still affording students an opportunity to actively participate in a process led by the College for the resolution of the complaint(s). Administrative Resolutions are to be utilized at the discretion of the College and may not be an appropriate method to resolve all cases of alleged misconduct.

Should the participating parties agree to utilize an offered Administrative Resolution option, the College will work with the participating parties to determine agreed-upon outcomes that are in compliance with applicable State and/or Federal law and policy. Administrative Reviews may require the Respondent to claim responsibility for violating College policy. All participating parties will be provided a written agreement, and once signed, the terms of the agreement are final and no appeals will be considered.

Alternative means of Resolution will not be available in matters involving students and employees.

The Title IX Grievance Process

Filing a Formal Complaint

The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded within a reasonably prompt manner, and no longer than 180 business days after the filing of the Formal Complaint, provided that the Process may be extended for a good reason, including but not limited to the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for applying for extensions is described below.

To file a Formal Complaint, a complainant must provide the Title IX Coordinator or their designee, a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this Policy if they are currently participating in, or attempting to participate in, the education programs or activities of �鶹��ý�Ŷ�, including as an employee. For complainants who do not meet these criteria, the College will utilize the �鶹��ý�Ŷ� Sexual Violence Response Policies and Procedures.

If a complainant does not wish to make a Formal Complaint, the Title IX Coordinator or their designee, may determine a Formal Complaint is necessary. �鶹��ý�Ŷ� will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this Policy and Process.

Nothing in the Title IX Grievance Policy prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.

Multi-Party Situations

The institution may consolidate Formal Complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.

Truthfulness

All individuals in the reporting and resolution processes have the responsibility to be truthful with the information they share at all stages of the process. A report of a violation under this Policy is not considered a bad faith report merely because the evidence does not ultimately support the allegation. Individuals are prohibited from knowingly making a false report, filing a false Formal Complaint, or making misrepresentations. If an investigation results in a finding that a person has willfully filed a bad faith report, filed a false Formal Complaint or made misrepresentations as part of the reporting or resolution process, the person may be subject to appropriate Disciplinary Sanctions under the Code of Conduct in the case of Students or other relevant policies and collective bargaining agreements in the case of employees.

Determining Jurisdiction

The Title IX Coordinator or their designee will determine if the instant Title IX Grievance Process should apply to a Formal Complaint. The Process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:

1. The conduct is alleged to have occurred on or after August 14, 2020;

2. The conduct is alleged to have occurred in the United States;

3. The conduct is alleged to have occurred in the college’s education program or activity; and

4. The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.

If all of the elements are met, �鶹��ý�Ŷ� will investigate the allegations according to the Title IX Grievance Process.

Allegations Potentially Falling Under Two Policies:

If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and prohibited conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied in the investigation and adjudication of all of the allegations.

Mandatory Dismissal

If any one of these elements are not met, the Title IX Coordinator or their designee will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal in writing or electronically to the college’s Chief Diversity Officer, who serves as the supervisor of the Title IX Coordinator, within five (5) business days of the determination.

Discretionary Dismissal

The Title IX Coordinator or their designee may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within that Formal Complaint, at any time during the investigation or hearing, if:

A complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations raised in the Formal Complaint;
The respondent is no longer enrolled or employed by �鶹��ý�Ŷ�; or,
If specific circumstances prevent �鶹��ý�Ŷ� from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.

Each party may appeal this dismissal in writing or electronically to the college’s Chief Diversity Officer, who serves as the supervisor of the Title IX Coordinator, within five (5) business days of the determination.

Notice of Dismissal

Upon reaching a decision that the Formal Complaint will be dismissed, the institution will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation within the Formal Complaint, and the reason for the dismissal, simultaneously to the parties by their institutional email accounts if they are a student or employee, and by other reasonable means. It is the responsibility of parties to maintain and regularly check their email accounts.

Notice of Removal

Upon dismissal of the formal complaint, for the purposes of Title IX, �鶹��ý�Ŷ� retains discretion to utilize the Student Code of Conduct or an appropriate employment policy to determine if a violation has occurred. If so, �鶹��ý�Ŷ� will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to the conduct process.

Notice of Allegations

The Title IX Coordinator or their designee will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable, but no more than five (5) days after the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances.

The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means if they are neither.

The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.

The Title IX Coordinator or their designee may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.

Contents of Notice

The Title IX Coordinator or their designee is responsible for providing the Notice of Allegations to the parties. The Notice of Allegations will be sent to both parties at the same time and include the following:

Notice of the institution’s Title IX Grievance Process and a hyperlink to a copy of the process, including any informal resolution process and a hyperlink to a copy of the process.
Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment and concomitant prohibited conduct; and the date and location of the alleged incident, if known.
A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi);

Ongoing Notice

If, in the course of an investigation, the institution decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations and are otherwise covered "sexual harassment” falling within the Title IX Grievance Policy, the institution will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means.

The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.

Advisor of Choice and Participation of Advisor of Choice

�鶹��ý�Ŷ� will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.

�鶹��ý�Ŷ� has a long-standing practice of requiring the parties to participate in the process directly and not through an advocate or representative. Individuals Students participating as Complainant or Respondent in this process may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice does not take an active role as an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, Advisors of Choice shall not participate directly in the process as per standard policy and practice of �鶹��ý�Ŷ�.

�鶹��ý�Ŷ� will not intentionally schedule meetings or hearings on dates where the Advisors of Choice for all parties are not available, provided that the Advisors of Choice act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.

�鶹��ý�Ŷ�’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other college policies apply to matters governed under this Policy, and �鶹��ý�Ŷ� cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. �鶹��ý�Ŷ� will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by �鶹��ý�Ŷ�.

Notice of Meetings and Interviews

�鶹��ý�Ŷ� will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.

Delays

Each party may request a one-time delay in the Grievance Process of up to five (5) days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Dean of Students, or designee) provided that the requestor provides reasonable notice, a legitimate explanation for the delay, and the delay does not overly inconvenience other parties. The Title IX Coordinator, Dean of Students, or designee may temporarily delay the commencement of an investigation or adjudication should the matter interfere with a concurrent law enforcement proceeding and/or related employee proceeding.

For example, a request to take a five day pause made an hour before a hearing for which multiple parties and their advisors have traveled to and prepared for shall generally not be granted, while a request for a five day pause in the middle of investigation interviews to allow a party to obtain certain documentary evidence shall generally be granted.

The Title IX Coordinator, Dean of Students, or designee, shall have sole judgment to grant further pauses in the Process.

Investigation

General Rules of Investigations

The Title IX Coordinator, or designee, will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.

�鶹��ý�Ŷ� and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from �鶹��ý�Ŷ� and does not indicate responsibility.

�鶹��ý�Ŷ� cannot access, consider, or disclose medical records without a signed waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. �鶹��ý�Ŷ� will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations, respectively) as described below.

Investigative Report

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence, will and provide that Report to the parties at least ten (10) business days prior the hearing in an electronic format for each party’s review and written response.

The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence.

Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove and disprove the allegations - relevant evidence) will be referenced in the Investigative Report.

The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See, 85 Fed. Reg. 30026, 30304 (May 19, 2020).

Inclusion of Evidence Not Directly Related to the Allegations:

Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the Formal Complaint will be included in the appendices to the investigative report.

Inspection and Review of Evidence

Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.

Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:

1. Evidence that is relevant, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility;

2. inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.

All parties must submit any evidence they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins. See, 85 Fed. Reg. 30026, 30307 (May 19, 2020).

The College will send the evidence made available for each party and each party’s advisor, if any, to inspect and review through an electronic format. �鶹��ý�Ŷ� is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.

The parties will have ten (10) business days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will consider the parties’ written responses before completing the Investigative Report. Parties may request a reasonable extension as their designated extension request.

�鶹��ý�Ŷ� will provide copies of the parties’ written responses to the investigator to all parties and their advisors, if any. See, 85 Fed. Reg. 30026, 30307 (May 19, 2020).

�鶹��ý�Ŷ� will provide the parties five (5) business days after the initial inspection and review of evidence, and before the investigator completes their Investigative Report, to provide additional evidence in response to their inspection and review of the evidence, and then provide the parties five (5) business days to inspect, review, and respond to the party’s additional evidence through a written response to the investigator. Those written responses will be disclosed to the parties. See, 85 Fed. Reg. 30026, 30307 (May 19, 2020).

Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.

The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).

Hearing

General Rules of Hearings

�鶹��ý�Ŷ� will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing unless otherwise resolved through an informal resolution process.

The live hearing may be conducted with all parties physically present in the same geographic location, or, at �鶹��ý�Ŷ�’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through videoconferencing. This technology will enable participants simultaneously to see and hear each other. At its discretion, �鶹��ý�Ŷ� may delay or adjourn a hearing based on technological difficulties not within a party’s control.

All proceedings will be recorded through an audio recording. That recording will be made available to the parties for inspection and review.

Continuances or Granting Extensions

�鶹��ý�Ŷ� may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is/are needed to complete a hearing. If so, �鶹��ý�Ŷ� will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Newly-discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing.

If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.

The hearing body will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the hearing body answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.

Participants in the live hearing

Live hearings are not public, and the only individuals permitted to attend the hearing are as follows:

Administrative Hearing Officer

The Administrative Hearing Officer will serve as a non-voting position responsible for opening and establishing the rules and expectations for the hearing.
The Administrative Hearing Officer is responsible for answering any procedural related questions raised by the parties, advisors of choice, or decision-makers.
In matters involving employees, the Vice President for Finance and Administration will designate an individual to serve in this capacity. In matters involving students, the Vice President of Student and Campus Life will designate an individual to serve. In matters involving both an employee and a student, the case will be referred to the Vice President for Finance and Administration to designate an Administrative Hearing Officer.
In Title IX related matters, the Administrative Hearing Officer, in consultation with the hearing body, will be responsible for writing the Determination Regarding Responsibility (see below).

Advisor of Choice

The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
In addition to selecting an advisor to conduct cross-examination, the parties may select an advisor who may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party.
The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the institution will select an advisor to serve in this role for the limited purpose of conducting the cross- examination at no fee or charge to the party.
The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
The advisor is not prohibited from being a witness in the matter.
If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. See 85 Fed. Reg. 30026, 30340 (May 19, 2020).
If neither a party nor their advisor appears at the hearing, �鶹��ý�Ŷ� will provide an advisor to appear on behalf of the non-appearing party. See 85 Fed. Reg. 30026, 30339-40 (May 19, 2020).
Advisors shall be subject to the institution’s Rules of Decorum, and may be removed upon violation of those Rules.

Complainant and Respondent (The Parties)

The parties cannot waive the right to a live hearing.
The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party. See 85 Fed. Reg. 30026, 30361 (May 19, 2020).
�鶹��ý�Ŷ� will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation. See 34 C.F.R. § 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020).
If a party does not submit to cross-examination, the decision-maker may rely on any prior statements made by that party in reaching a determination regarding responsibility, but may assign lower weight to statements that have not been subject to cross examination.
The hearing body cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions. See 34 C.F.R. §106.45(b)(6)(i).
The parties shall be subject to the institution’s Rules of Decorum.

The Decision-maker

The hearing body will consist of a panel of three decision-makers.
No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
The parties will have an opportunity to raise any objections regarding a decision- maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Witnesses

Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
Witnesses shall be subject to the institution’s Rules of Decorum.

Hearing Procedures

For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:

The Administrative Hearing Officer will open and establish rules and expectations for the hearing;
The Parties will each be given the opportunity to provide opening statements;
The hearing body will ask questions of the Parties and Witnesses;
Parties will be given the opportunity for live cross-examination after the decision maker(s) conduct their initial round of questioning; during the Parties’ cross- examination, the hearing body will have the authority to pause cross- examination at any time for the purposes of asking their own follow up questions; and any time necessary in order to enforce the established Rules of Decorum.
Should a Party or the Party’s Advisor choose not to cross-examine a Party or Witness, the Party shall affirmatively waive cross-examination through a written or oral statement to the hearing body. A Party’s waiver of cross-examination does not eliminate the ability of the hearing body to use statements made by the Party.

Live Cross-Examination Procedure

Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Before any cross-examination question is answered, the hearing body will determine if the question is relevant. See Model Relevance Policy. Cross-examination questions that are duplicative of those already asked, including by the hearing body, may be deemed irrelevant if they have been asked and answered.

Review of Recording

The audio recording of the hearing will be available for review by the parties within two business days, unless there are any extenuating circumstances. Copies of the audio recording of the hearing will not be provided to parties or advisors of choice.

Determination Regarding Responsibility

Standard of Proof

�鶹��ý�Ŷ� uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Policy occurred.

General Considerations for Evaluating Testimony and Evidence

While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the Decision-maker.

Decision-makers shall not draw inferences regarding a party or witness’ credibility based on the party or witness’ status as a complainant, respondent, or witness, nor shall it base its judgments in stereotypes about how a party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.

Still, credibility judgments should not rest on whether a party or witness’ testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.

Decision makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.

A witness’ testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.

�鶹��ý�Ŷ� allows parties to call “expert witnesses” for direct and cross examination. While the expert witness will be allowed to testify and be cross-examined, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross examination and regardless of whether all parties present experts as witnesses.

The Final Rule requires that �鶹��ý�Ŷ� allow parties to call character witnesses to testify. While the character witnesses will be allowed to testify and be cross-examined, the decision-maker will be instructed to afford very low weight to any non-factual character testimony of any witness. The parties may elect to submit a written statement by any identified character in lieu of their live testimony.

�鶹��ý�Ŷ� will accept and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed to testify and be cross- examined, the decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.

Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the hearing body may draw an adverse inference as to that party or witness’ credibility.

Components of the Determination Regarding Responsibility

The written Determination Regarding Responsibility, finalized by the Administrative Hearing Officer in consultation with the voting hearing body, will be issued simultaneously to all parties through their institutional email account, or other reasonable means as necessary. The Determination will include:

Identification of the allegations potentially constituting covered sexual harassment;
A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
Findings of fact supporting the determination;
Conclusions regarding which section of this policy and/or the Student Code of Conduct, if any, the respondent has or has not violated.
For each allegation:

a. A statement of, and rationale for, a determination regarding responsibility;

b. A statement of, and rationale for, any disciplinary sanctions �鶹��ý�Ŷ� imposes on the respondent; and

c. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to �鶹��ý�Ŷ�’s education program or activity will be provided by �鶹��ý�Ŷ� to the complainant; and
�鶹��ý�Ŷ�’s procedures and the permitted reasons for the complainant and respondent to appeal (described below in “Appeal”).

Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by �鶹��ý�Ŷ� within ten (10) business days of the completion of the hearing.

Finality

The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.

Appeals

Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. To appeal, a party must submit their written appeal within five (5) business days of being notified of the decision, indicating the grounds for the appeal.

The limited grounds for appeal available are as follows:

Procedural irregularity that affected the outcome of the matter (i.e. a failure to follow �鶹��ý�Ŷ�’s own 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, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter.
Incorrect conclusion as to the extent of the wrongdoing.
Extremely and unfairly punitive or lenient sanction(s). (In this case, it is necessary to distinguish between severe or mild action, which does not constitute grounds for appeal, and extremely punitive or lenient action, i.e., out of all proportion to the misconduct, which occurred.)
An appeal may be based on the unfairness of the rule, which was violated, in which case a decision on the appeal is made after the rule itself is reviewed by appropriate College personnel.

The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.

If a party appeals, �鶹��ý�Ŷ� will as soon as practicable notify the other party in writing of the appeal, however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.

Appeals will be decided by a three-person Appellate Board, who will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decision-maker in the same matter.

Outcome of appeal will be provided in writing simultaneously to both parties, and include rationale for the decision.

Retaliation

�鶹��ý�Ŷ� will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this Title IX Grievance Policy.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. /handbook/amnesty-sexual-and-interpersonal- violence-cases

Complaints alleging retaliation may be filed through the Title IX Office by submitting a Title IX Incident Report:

https://cm.maxient.com/reportingform.php?SUNY�鶹��ý�Ŷ�&layout_id=2

Disability Accommodations

This policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX grievance process that do not fundamentally alter the process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other institutional programs and activities.

Approved by College Council: 5/5/23.

This policy will be reviewed for updates annually.

08-14-2020

Mike Taberski

Vice President for Student and Campus Life

08-01-2024

Accident Reporting Policy

Anonymous — Thu, 26 Sep 2019 18:08:49 +0000

Accident Reporting Policy Anonymous (not verified) Thu, 09/26/2019 - 14:08

6-604

Cabinet

01-02-2013

10-31-2023

Employees

When an employee is involved in a work related accident resulting in injury or illness, the below listed procedures shall be followed:

Employees shall notify their supervisor immediately, or as soon as they are able. If this is not possible and a witness is on the scene, the witness can contact:

The employee’s supervisor, if known;
Department of Human Resources (585-245-5616); and the
Department of Environmental Health and Safety (585-245-5663).

The University Police Department should be contacted only when an employee’s supervisor is not available or in extreme emergency cases. Failure to immediately report accidents resulting in injury or illness can compromise the employee’s occupational injury or illness claim, and can be a violation of this policy.
Regardless of the severity level, the Accident Report Form is to be completed in full by the injured employee for all injuries or illnesses. In instances where an employee is not capable of reporting an injury or illness, the employee’s supervisor will complete the form. All completed forms should be forwarded to Human Resources, Doty 318 where originals shall be kept on file. If medical attention is required or if the employee will miss time from work and the form cannot immediately be delivered to Human Resources, the supervisor should contact Human Resources at 585-245-5616.

*Note: Incomplete forms will be returned to the supervisor for further corrective action. Employees must report an injury or illness to the NYS Accident Reporting System (ARS) at 1-888-800-0029. The employee will be given an ARS incident number which they must record. In instances where an employee is not capable of calling ARS, the supervisor will make the call on their behalf and record the ARS incident number. The ARS Call Center is open 8:00 a.m. to 5:00 p.m. EST, Monday through Friday and the Call Center will be closed on State holidays. Callers will be able to leave a message after hours and on weekends/holidays. A Call Center Representative will return an employee’s call the next business day in order to report the injury or illness and obtain an ARS incident number. Calling the ARS Call Center remains the first step in expediting the workers’ compensation claims process.

Supervisors should ensure that corrective action for unsafe conditions or unsafe behaviors are either remedied as soon as possible or referred to the appropriate department for action. The Department of Environmental Health and Safety should be contacted for situations that require special attention.
If applicable, the employee will also be notified of their rights under the Family Medical Leave Act (FMLA). For more information, see Employee Rights and Responsibilities under the Family Medical Leave Act.
For absences from work five (5) days or more due to a work-related injury or illness, CSEA employees must charge the first (5) work days of their absence to sick or vacation accruals. The employee is then placed on the workers’ compensation payroll after the five (5) working days or seven (7) calendar days, whichever is greater. If the employee does not have any accruals to use, they will be placed on leave of absence without pay effective the first full day of absence (partial days do not count) and then on leave without pay. There is no way to avoid going on workers’ compensation payroll if an employee will be out of work for more than five (5) work days.
Employees represented by bargaining units other than CSEA should contact Human Resources for specifics on their workers’ compensation benefits.
Injured employees must provide medical documentation to support all absences related to the work-related injury or illness.

It is the responsibility of the employee to obtain appropriate medical documentation. All medical documentation shall be submitted to the Department of Human Resources at �鶹��ý�Ŷ�, Human Resources, Doty 318 Hall, �鶹��ý�Ŷ� NY 14454. The doctor’s office may fax the information to 585-245-5998. Medical documentation will remain confidential and Human Resources will in turn notify the employee’s supervisor of their status. All medical documentation must be submitted on the Certification of Health Care Provider for Employee’s Serious Health Condition (WH380-E).

Prior to returning to work, the Return to Work Form from the employee’s physician must be received by the Department of Human Resources at least 48 hours (during business days) prior to the employee’s anticipated return to work date. Human Resources is responsible for reviewing return to work certification. This form must be completed in full and reviewed by Human Resources 48 hours prior to the employee returning to work. If there are restrictions, they must be specific and state when they can be lifted.
Light duty may be considered when a person is considered 50% disabled or less, and full recovery is expected within 45-60 days. A Physical Capabilities form, which can be obtained from Human Resources, must also be completed by the employee’s physician. Human Resources will discuss with the employee’s supervisor the restrictions to determine if light duty is possible. An employee may be required by the college to undergo a medical examination by a New York State Civil Service doctor at any time during their workers’ compensation leave.
It is critical that the employee remains in contact with the Human Resources office throughout their workers’ compensation leave.
The Department of Human Resources will post information related to occupational injury/illness, job safety, and health protection, and will maintain injury/illness records as required by the New York State Department of Labor. The Department of Human Resources will also assist in completing regulatory surveys involving injuries and illnesses.
The �鶹��ý�Ŷ� Accident Report Form will be reviewed by the Department of Human Resources. Human Resources will forward copies of completed forms to the Department of Environmental Health and Safety for further review.
The Department of Human Resources is responsible for reviewing all return to work documentation (with or without restrictions/light duty). Human Resources will work in conjunction with the employee’s supervisor to coordinate the return to work. Every effort will be made to accommodate the employee’s return to work on light duty. However, in some instances, due to the nature of the job duties, this may not be feasible, and the return would be delayed until they are able to be released for full duty.
1. The Department of Human Resources will transact in various employment and reporting systems all necessary transactions to affect a worker’s compensation leave without pay and report such to the New York State Insurance Fund.
2. Human Resources will ensure that employees with illness or injury who have medical services or lost time have access to the Claimant Information Packet which includes information and forms. After hours, employees can print a Claimant Information Packet from the New York State Insurance Fund’s website.
3. The Claimant Information Packet contains a Workers’ Compensation Temporary Prescription Services ID form. This form may be substituted for an incident number and presented to a participating Express Scripts pharmacy in order to receive a limited supply of a needed prescription. This form may only be used during times when the ARS Call Center is closed.
In the event of a work-related fatality or a hospitalization event involving two or more employees, the Department of Environmental Health and Safety will report within eight (8) hours the relevant information to the New York State Department of Labor, Division of Safety and Health.

Forms

The following forms may be utilized for accidents involving employees:

�鶹��ý�Ŷ� Accident Report Form
Certification of Healthcare Provider Form (WH380-E)
Return to Work Form
Physical Capabilities Form

Students and Visitors

When a student or visitor is involved in an accident resulting in injury or illness, the following procedures shall be followed:

Dial 585-245-5222 or 911 for immediate response to the incident location by the University Police Department.
The responding University Police Officer shall:

Determine if immediate medical attention is required;
ensure the safety of all parties present;
and complete Parts I and II of the Accident Report Form and submit for supervisory review and approval.

After supervisory review and approval of the completed Accident Report, the University Police Department shall maintain the original report forms for incidents involving students and visitors. Electronic copies shall be forwarded to the College’s:

Department of Environmental Health & Safety
Controller’s Office

Notifications

The Controller’s Office shall make the following notifications as noted:

SUNY Counsel’s Office (for incidents involving serious injury or fatality);
The Dormitory Authority for incidents involving serious injury or fatality which occurred on or about a residence hall. Such reports may be mailed to:

Director of Risk Management

Dormitory Authority

State of New York

515 Broadway

Albany, NY 12207-2964; or

*Note: In the event that a serious injury or serious fire occurs at a campus residence hall, the Director of Risk Management at the Dormitory Authority shall be notified as soon as possible at (518) 257-3702.

Policy will be reviewed every five years.

Julie Briggs

Associate Vice President for Human Resources

10-31-2023