Sexual Harassment Investigation Procedure

This document describes the investigation process for complaints arising from the Sexual Harassment Policy. It assumes the definitions and processes established in the policy document.

The procedure in this document is utilized to investigate and resolve all allegations of misconduct that violates Seminary policy regarding sexual harassment as defined in the Sexual Harassment Policy. Allegations of misconduct that do not involve sexual harassment are handled by the Human Resources Office based on applicable policies.

The Complainant is the person alleging a violation of this sexual harassment policy.

The Respondent is the person who is alleged to have violated this sexual harassment policy.

1. Notice to Institution

Reporting an alleged violation to one of following persons constitutes a formal report and the Seminary is obligated to investigate the report.

• president
• provost
• executive vice president
• senior vice president for finance and administration
• senior vice president for seminary advancement
• director of human resources
• dean of ministerial formation
• dean of advanced studies

The Title IX Coordinator and the Complainant review the event(s) and make a written record of the incident.

2. Initial Inquiry

After receiving notice that an incident is alleged to have occurred, the Title IX Coordinator shall promptly contact the Complainant confidentially to discuss the availability of supportive measures, determine whether such measures are requested, and explain the process for filing a formal complaint. Following the conversation, the Coordinator will provide to the Complainant a written summary of the discussion and any supportive measures that are to be implemented.

All investigations of sexual harassment allegations must be based on a formal (written) complaint document, whether submitted by the Complainant or produced by the Title IX Coordinator on the Complainant’s behalf.

• After receiving a formal complaint, the Title IX Coordinator conducts an initial inquiry to determine whether there is an adequate basis to proceed with a formal investigation.
• If the initial inquiry indicates that the allegation does not involve a matter of sexual harassment, the allegation is processed according to regular Human Resources procedures. The procedures this document do not apply to complaints that do not violate the Sexual Harassment Policy.
• If the initial inquiry establishes an adequate basis to proceed with a full investigation, the Title IX Coordinator identifies the specific provisions of the policy regarding sexual harassment that will be the basis for proceeding with the formal investigation.

Supportive Measures

Depending on the seriousness of the matter, the Seminary has the right and responsibility to take actions that ensure the safety of a Complainant until the investigation process is concluded.

• If the Respondent is a staff or faculty member, the Seminary may take any of the following actions: reassign the Respondent to alternate duties, make scheduling changes that avoid contact with the Complainant, suspend the employee with pay, prohibit the Respondent from entering or being on Seminary property, or prohibit contacting the Complainant.
• If the Respondent is a student, the Seminary may require a change in the Respondent’s student status, class schedule, or residency (if the Respondent lives in campus housing), prohibit the Respondent from entering or being on Seminary property, or prohibit contacting the Complainant.

3. Notifications

Prior to conducting the formal investigation, the Title IX Coordinator or an Investigator sends to the Complainant and the Respondent a written statement of the alleged policy violations and the process that is used to conduct the investigation. The written notice also informs them that each party may select an advisor (who may be, but does not need to be, an attorney), and that the parties will have an equal opportunity to submit and review evidence throughout the investigation.

If the incident is potentially reportable under the Clery Act (crime reporting), the Title IX Coordinator notifies Campus Safety.

If the Respondent is a staff member, the Title IX Coordinator reports the matter to the employee’s immediate supervisor and also to the senior vice president for finance and administration. If the Respondent is a faculty member, the Title IX Coordinator reports the matter to the provost and also to the dean of faculty. If the Respondent is a student, the Title IX Coordinator reports the matter to the dean responsible for the student’s program.

The Seminary will keep confidential the identity of complainants, respondents, and witnesses, except as necessary to provide supportive measures, carry out necessary administrative responses, and proceed with the processes of investigation and a hearing.

[Informal Resolution]

In some situations it may be desirable to reach an informal resolution of the incident. An informal resolution would typically involve using a mediator to facilitate a resolution of the situation.

The Title IX Coordinator may invite the Complainant to consider an informal resolution if the situation seems appropriate and arrange for a resolution process if the Complainant and Respondent are willing. Both parties must give written consent to participate in this process. No one will be coerced into an informal resolution. This option is not available when assault is alleged, and it is not available when the allegation involves an employee and a student.

4. The Grievance Process in General

Concordia Seminary’s sexual harassment grievance process (investigation, hearing, appeals) is based on the following principles.

• All relevant evidence, whether appearing to support the Complainant or the Respondent, will be evaluated objectively.
• All Title IX personnel will be free from conflicts of interest or bias for or against Complainants or Respondents.
• A presumption that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
• The grievance process (investigation, hearing, appeals) will be concluded as promptly as circumstances permit. Normally this will be within 60 days.
• The grievance process must not use or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

5. Formal Investigation

If the initial inquiry establishes a basis for initiating a full investigation of the reported sexual harassment policy violations, the Title IX Coordinator directs the Investigators to conduct an investigation that is thorough, reliable, and impartial.

The Investigators document the matter in detail and interview the parties and witnesses, based on these principles.

• The purpose of the investigation is to establish the facts and circumstances regarding the reported incident(s). There are no “charges” and it proceeds on the assumption that the Respondent is innocent until the hearing process determines whether there has been a policy violation.
• The burden of gathering evidence and moving the grievance resolution process forward is upon the Seminary, not on the parties.
• The two parties may each select an advisor of the party’s choice, who may be an attorney. (In this document, “advisor” refers to an advocate who assists the party during the grievance process, not to an academic or formation advisor.)
• Advisors may help their advisees prepare for each meeting, and must participate in the hearing.
• The investigation is conducted by both Investigators when possible.
• The Seminary does not restrict the ability of the parties to discuss the allegations or gather evidence (e.g., no “gag orders”).
• The Seminary protects the privacy of a party’s medical, psychological, and similar treatment records by stating that the grievance process cannot access or use such records without the party’s voluntary, written consent to do so.
• The Seminary provides equal opportunity for the parties to present fact, identify witnesses, and present other evidence.
• The Seminary sends both parties, and their advisors, evidence directly related to the allegations, with at least 10 days for the parties to inspect, review, and respond to the evidence.
• The Seminary sends both parties, and their advisors, the final investigative report that fairly summarizes relevant evidence, with at least 10 days for the parties to respond.

Dismissal of the Matter

Under the following circumstances the grievance process (investigation, hearing, appeal) will be terminated.

• The Complainant desires to withdraw the formal complaint or allegations.
• The Respondent is no longer enrolled or employed by the school.
• Specific circumstances prevent gathering sufficient evidence to reach a determination.
• The formal investigation demonstrates that this is not a matter of sexual harassment as defined in the Sexual Harassment Policy.

The Title IX Coordinator is responsible for informing the parties in writing that the formal sexual harassment grievance process is terminated. The Seminary will consider whether the circumstances warrant further action based on the Seminary’s Human Resources policies and procedures.

6. Formal Hearing

Decision-Makers Panel

Decision-Makers are the campus leaders who form a panel of three persons to conduct formal hearings regarding allegations of sexual harassment. One member is a supervisor of the Respondent and one member serves as the chair of the panel.

If a Panel member as listed above is unable to serve, the other two members will select a replacement from the remaining two Decision-Makers.

Appeals shall be directed to the Executive Vice President.

Hearing Procedures

Federal regulations require that after the investigation has been concluded, a formal hearing must be conducted. The three Decision-Makers designated to serve on the Panel, as described above, are the body that will hear the evidence and decide upon the outcome of the matter.

• Prior to the hearing, the Panel confers to select one of themselves to chair the hearing and to determine any specific logistical matters.
• The hearing must be “live,” although any or all parties, witnesses, and other participants may appear at the live hearing by electronic means.
• At the request of either party, the Seminary must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
• The Panel must arrange for an audio or audiovisual recording, or transcript, of any live hearing.
• If a party does not have an advisor at the time of the live hearing, the Seminary will provide, without fee or charge to that party, an advisor of the school’s choice to attend the hearing on behalf of that party.
• An advisor may not make a presentation or answer questions on behalf of his or her advisee in a meeting.
•  The chair must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
• Only relevant cross-examination and other questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the chair must first determine whether the question is relevant.
• Advisors are expected to maintain the privacy of the records shared with them by the Seminary. These records may not be shared or discussed with any party other than the advisee unless explicitly authorized by the Seminary.

When determining whether the Respondent has violated the Sexual Harassment Policy, the Panel shall decide whether preponderance of the evidence supports the allegation of sexual harassment. In other words, the Panel decides whether it is more likely than not that sexual harassment occurred.

7. Findings and Disciplinary Sanctions

The chair of the Panel issues a written report that summarizes the facts, states conclusions about whether the alleged conduct occurred and the rationale for the conclusions, any disciplinary sanctions imposed on the Respondent, and when the sanctions take effect..

The Panel considers the possibility that Supportive Measures (as described above) should be initiated or continued to provide assistance to the Complainant.

The written report must be sent simultaneously to the Complainant, Respondent, and the Title IX Coordinator, along with information about how to file an appeal.

Student Sanctions

If a student Respondent is found to be in violation of the Sexual Harassment Policy, the student may be required to participate in counseling, be required to take a leave of absence, or be dismissed from the Seminary.

Employee Sanctions

If an employee Respondent is found to be in violation of the Sexual Harassment Policy, the penalty will range from mandatory counseling to termination, depending on the nature of the violation, and utilize the Seminary’s system of reprimands and work plans where appropriate.

8. Appeal

The Complainant and Respondent have five business days to appeal in writing the result of the formal hearing or a dismissal of the matter prior to the hearing. The appeal request must identify its basis in one or more of the following reasons.

• A procedural irregularity that affected the outcome of the matter
• Newly discovered evidence that could affect the outcome of the matter
• Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.

Appeals shall be directed to the Title IX Coordinator, who informs both parties. The Executive Vice President is responsible for handling all appeals.

The outcome of any appeal shall be communicated to the Complainant and the Respondent in writing.

9. Records and Storage

The Title IX Coordinator prepares a summary report after the grievance process (investigation, hearing, appeal) is complete. This report summarizes the allegations and states the outcomes of the hearing (and appeal), but not details of the investigation.

In addition, a complete confidential record shall be established for every allegation of sexual misconduct that has been investigated. It shall include:

• A copy of the initial report that includes the facts and circumstances alleged by the Complainant.
• A copy of the investigative report and the facts as established by the investigation.
• A copy of the hearing report and any subsequent report from an appeal.

This complete file shall be retained as a confidential record in the custody of the Title IX Coordinator.