Table of Contents

Introduction
Confidentiality
Independent Informal Resolution Efforts and Information
Notice and Complaints
Report Intake and Initial Assessment
Interim Remedies/Actions/Supportive Measures
Formal and Informal Resolution Procedures
1. Informal Resolution Procedure
2. Formal Resolution Procedure (also known as Administrative Resolution)
Records
Statement of Rights in the Equity Compliance Resolution Process
Consequences/Corrective Actions
Revision
Discretion
Potential or Perceived Conflicts of Interests and Other Unique Circumstances
Community Expectations
History

1. Introduction

The University of Dayton will act on any formal or informal reports or complaints of violations of the Nondiscrimination and Anti-Harassment Policy (“Nondiscrimination Policy”) that is received by the Executive Director for Equity Compliance/Title IX Coordinator (referred to throughout this process as the “Executive Director/Title IX Coordinator”).^[1] The Executive Director/Title IX Coordinator can be contacted as follows:

Maureen Anderson, JD, LLM
Executive Director/Title IX Coordinator
University of Dayton
Marianist Hall, Suite 240
300 College Park
Dayton, OH 45469-0701
937-229-3688
manderson1@udayton.edu

The Equity Compliance Resolution Process may be used to resolve reported violations of the Nondiscrimination and Anti-Harassment Policy, except qualifying allegations of Sexual Harassment (including sexual assault, dating violence, domestic violence, and stalking, as defined in the Nondiscrimination and Anti-Harassment Policy^[2]) involving students, staff, and faculty members.

The procedures described below will apply to all reported concerns involving students, staff or faculty members. For matters that may result in disciplinary action, these two exceptions may apply: First, bargaining unit employees will be subject to the terms of their respective collective bargaining agreements to the extent those agreements do not conflict with federal or state compliance obligations. Second, certain processes involving faculty may be associated with matters outlined in Section I of the Bylaws and Operating Procedures of the Faculty Hearing Committee on Grievances or Section I of the Bylaws and Operating Procedures of the Faculty Hearing Committee on Academic Freedom and Tenure. If the Equity Compliance Resolution Process indicates a finding of responsibility, that outcome will be addressed in conjunction with the procedures referenced in the prior sentence (as applicable to faculty), so long as an adequate remedy for any violation determined under the Nondiscrimination and Anti-Harassment Policy remains in place.^[3]

2. Confidentiality

Reports or notice that indicate the University’s Nondiscrimination and Anti-Harassment Policy may have been violated generally cannot be kept confidential. Generally they must be reported to the Executive Director/Title IX Coordinator and/or Deputies, or other University personnel with a duty to report such matters. All of those involved in the investigation or resolution of a matter are expected to respect and protect the privacy of those reporting or otherwise involved in any process related to the Nondiscrimination and Anti-Harassment Policy. For a list of confidential sources and further information regarding requests for confidentiality, please consult Section XIII, entitled “Mandatory Reporting and Confidentiality,” of the Nondiscrimination and Anti-Harassment Policy.

3. Independent Informal Resolution Efforts and Information

In the spirit of the Marianist charism of community, individuals may consider making reasonable effort to constructively and amicably resolve issues among the parties.^[4] In some cases, this approach may resolve the situation; in others, it may be ineffective or place the individual in an uncomfortable, insecure, or compromised position. The Executive Director/Title IX Coordinator, Deputy Coordinators, or designees can facilitate such discussions, upon request, and monitor them for safety. Such discussions may help prevent tense situations from escalating to a hostile environment. However, the University does not require a reporting party to contact the person involved if doing so is impracticable or unsafe, or if the party believes that the conduct cannot be effectively addressed through such informal or self-initiated means. Individuals are encouraged to contact the Equity Compliance Office to understand whether the problem is appropriate for independent informal resolution efforts, or to seek guidance regarding options for informal or formal resolution. If individuals choose to pursue such informal resolution and satisfactory resolution is not reached after discussion with the responding party, the Executive Director/Title IX Coordinator can assist the individuals determining next steps, which may include initiation of the formal resolution process (described in section 6 and more thoroughly in section 8 below).

Please do not wait to contact the Executive Director/Title IX Coordinator or another University official until behavior becomes sufficiently serious (i.e., severe, pervasive, or persistent) to create a hostile environment. The University will take a proactive approach to preventing and addressing harassment and discrimination. The Executive Director/Title IX Coordinator reviews all online reports received and is also available to all members of the University community for consultation.

Please be advised that if a Complainant chooses to work with the Equity Compliance Office to pursue an independent or facilitated informal resolution process, it is completely voluntary, and parties have the right to end the process at any time and request to initiate the formal resolution process outlined below.

4. Notice and Complaints

As detailed in Section I. D. of the Nondiscrimination Policy, the University encourages everyone to report concerns or complaints regarding possible discrimination, harassment, and/or retaliation.^[5]

Upon receipt of notice, a report, or a Formal Complaint of an alleged violation of the Nondiscrimination Policy, the University initiates a prompt initial assessment to determine next steps the University needs to take.

When the impacted person’s identity is known, the University will initiate at least one of three responses:

Offer supportive measures because the Complainant does not want to file a Formal Complaint and/or because there is no reasonable cause to believe the Nondiscrimination Policy has been violated;
Offer informal resolution (upon submission of a Formal Complaint); and/or
Initiate a Formal Resolution Process including an investigation (upon submission of a Formal Complaint).

The University uses the Formal Resolution Process to determine whether or not the Nondiscrimination Policy has been violated.

All reports received by the University will be treated with the maximum possible privacy. Subject to the University’s obligation to redress violations, a reasonable effort will be made to maintain the privacy of those involved in a report of a possible violation. In all cases, the University will give consideration to the Complainant with respect to how a possible violation is pursued, but reserves the right, when necessary to protect the community and University, to investigate and pursue a resolution if the reporting party chooses not to initiate or participate in an investigation or resolution process.

No person shall make an allegation that they know to be untrue or knowingly provide false information during the course of an investigation. Making a false report or giving false information is a violation of University policy and may be a basis for discipline, including expulsion or termination. Evidence of false reports or false information can be referred to the Executive Director/Title IX Coordinator who in turn will consult with other University units as appropriate to address the concerns of false reporting.

5. Report Intake and Initial Assessment

All reports will be reviewed to determine appropriate follow-up and next steps. The scope of any investigation will be at the discretion of the Executive Director/Title IX Coordinator. Normally (i.e., assuming no unique circumstances exist), within 2-5 business days, an initial assessment or review will be done to determine if the available information shows reasonable cause to believe a policy violation may have occurred, and, if so, what policy violation(s) should be considered for investigation. Where necessary, additional inquiry or assessment may be conducted to gather sufficient information to make the determination whether there is sufficient reason to commence investigation. In most instances, the process begins with outreach to the Complainant to ensure the individual is aware of available rights and resources. If a Formal Complaint is received, the Executive Director/Title IX Coordinator will assess its sufficiency and work with the Complainant to make sure it is correctly completed.

If the reported and available information does not indicate a policy violation may have occurred, the case will be closed with no further investigation, with notification to the Complainant where known. When a Formal Complaint is filed and there is reasonable cause to believe a policy violation may have occurred, the University will initiate an investigation that is thorough, reliable, impartial, prompt and fair. Similarly, if, during the initial assessment or at any point during an investigation, the Executive Director/Title IX Coordinator determines that there is no reasonable cause to believe that policy has been violated, the process will end. The decision of whether reasonable cause to believe a policy violation may have occurred is not appealable. This decision lies in the sole discretion of the Executive Director/Title IX Coordinator. Some matters, even if they do not indicate reasonable cause to believe possible violation of the Nondiscrimination and Anti-Harassment Policy has occurred, may be referred for some form of conflict resolution, other policy action, and/or educational follow up.

For those matters that proceed, the report/Formal Complaint will be resolved through one of the processes discussed briefly here and in greater detail below:

Informal Resolution – typically used for less serious offenses and only when both parties agree to informal resolution.
Formal Resolution –formal resolution by trained administrators.

The Executive Director/Title IX Coordinator determines whether Informal Resolution or Formal Resolution may be appropriate for a matter. Informal Resolution may only occur if agreed upon by all parties; otherwise, the Formal Resolution Process applies. If Informal Resolution is desired by the Complainant and appears appropriate given the nature of the reported behavior, then the report will not proceed for further investigation unless a pattern of misconduct is suspected or there is an actual or perceived threat of further harm to the community or any of its members.

Note that the University’s ability to move forward in reviewing or investigating any matter depends on a number of factors including, but not limited to, knowledge of the complainant’s identity and/or the complainant’s willingness to participate in a formal investigation process. Thus, if the report is filed anonymously, the University’s ability to investigate will be limited, and an investigatory team likely will not be assigned. Additionally, if the Complainant does not wish to proceed or has asked that no action be taken, an initial assessment (with or without complainant participation) may be necessary to help the Executive Director/Title IX Coordinator determine if the available information indicates violence, threat, pattern, predation and/or weapon. In any matter where violence, threat, pattern, predation, and/or weapon is not indicated, the Executive Director/Title IX Coordinator may respect a Complainant’s request for no action and will investigate only so far as necessary to determine appropriate remedies. As necessary (e.g., where safety is a concern or remediation is warranted), the University reserves the right to initiate resolution proceedings without a formal report or participation by the Complainant.

If a University employee has a reasonable belief that a crime has been committed, the employee may be obligated to report that to law enforcement if police have not already been notified. In cases where a police investigation has been conducted or is being conducted, law enforcement may be able to provide some information to the Executive Director/Title IX Coordinator. The University’s investigation may be delayed for a short period of time upon a request from law enforcement, but will promptly resume as soon as possible. The University’s Equity Compliance Resolution process is separate from any law enforcement investigation or action.

The investigation and resolution shall be completed as promptly as possible, with the Equity Compliance Office and investigators ensuring a thorough process and communicating with the parties throughout the process. In complex cases, when a summer or holiday break occurs or extenuating circumstances exist, typical time frames may be extended. The parties will be generally kept informed of any scheduling delays in completing the investigation and resolution process.

6. Interim Remedies/Actions/Supportive Measures

At any time during the process, the Executive Director/Title IX Coordinator may recommend interim protections, remedies, or supportive measures for the Complainant, Respondent, or witnesses be provided by appropriate university officials. These measures may include, but are not limited to, separating the parties, placing limitations on contact between the parties (e.g., no contact orders, access restrictions), implementing interim suspensions or reassignments, referral to counseling or health services, referral to Employee Assistance Program (for employees) or making alternative workplace or student housing arrangements. Failure to comply with the terms of interim protections may be considered a separate violation of University policies.

During an interim suspension or administrative leave, a student or employee may be denied access to University housing and/or University campus/facilities/events. As determined by the Executive Director/Title IX Coordinator, this restriction can include classes and/or all other University activities or privileges to which the individual might otherwise have access. At the discretion of the Executive Director/Title IX Coordinator, alternative coursework options may be pursued to ensure as minimal an impact as possible on either party.

The University will maintain the privacy of any interim actions or protective measures, sharing necessary information only with those who need to know so as not to impair the University’s ability to provide the interim actions or protective measures. Every reasonable effort will be made to protect privacy.

7. Formal and Informal Resolution Procedures

The University has developed both an informal and formal resolution procedure to respond to potential violations of the University’s Nondiscrimination and Anti-Harassment Policy. The use of the informal resolution procedure is optional. In instances where parties involved do not wish to engage in the informal procedure, where informal resolution is not appropriate, or in situations where attempts at the informal procedure are unsuccessful, the formal procedure will be followed.

a. Informal Resolution Procedure

The University encourages informal resolution options when the parties desire to resolve the situation cooperatively and expeditiously. Regardless of whether the informal resolution procedure or formal resolution procedure is chosen, the respondent will be advised of the substance of the allegations made against them. If, when using the Informal Resolution Procedure, the parties have failed to achieve progress toward resolution within 10 working days and have not agreed to an extended timeframe, the Equity Compliance Office may commence formal resolution. Where the parties opt to attempt informal resolution, information shared during informal processes will not be included if the matter proceeds to formal investigation. The Executive Director/Title IX Coordinator will keep records of any process undertaken and resolution that is reached. Failure by the parties to abide by any agreed outcome can result in appropriate responsive actions.

Please be advised that the Informal Resolution Procedure is completely voluntary and that either party has the right to end the Informal Resolution Procedure at any time and request to initiate the Formal Resolution Procedure. Also note that some reports of discrimination or harassment, particularly reports involving physical violence, may not be appropriate for informal resolution, but may require use of the Formal Resolution Procedure described below.

b. Formal Resolution Procedure (also known as Administrative Resolution)

In response to Formal Complaints where there is indication of policy violation(s) and the Complainant does not seek to engage in informal resolution; informal resolution is not appropriate; or attempts at informal resolution have been taken but proven unsuccessful, the Executive Director/Title IX Coordinator will implement a formal resolution procedure, which will consist of two parts: (i) the investigation and (ii) the disposition/resolution.

i. Investigatory Team

The Executive Director/Title IX Coordinator in consultation with appropriate campus authorities will appoint a trained investigatory team from the Resolution Process Pool, consisting of two trained investigators, to conduct an adequate, reliable and impartial investigation.^[6]

Any real or perceived conflict of interest between an investigator and a party must be disclosed to the Executive Director/Title IX Coordinator; whether an investigator with a real or perceived conflict of interest can nonetheless serve on an investigatory team will be assessed on a case-by-case basis. When it is determined an investigator can appropriately be appointed despite a real or perceived conflict of interest, protective measures may be put in place to ensure fairness in the investigation, where such measures are warranted. If the bias or conflict relates to the Title IX Coordinator, concerns should be raised with the Associate Vice President of Audit, Risk & Compliance and Chief Risk Officer:

Robin Oldfield
Associate Vice President of Audit, Risk & Compliance and Chief Risk Officer
University of Dayton
Phone: 937-229-4348
roldfield1@udayton.edu

The investigatory team will act under the supervision of the Executive Director/Title IX Coordinator and/or a Deputy Coordinator.

As noted above, in Section 6, if at any point it is determined that there is no reasonable cause to believe a policy violation may have occurred, at the discretion of the Executive Director/Title IX Coordinator, the case will be closed with no further action and the Complainant and Respondent will be so notified in writing.

The investigatory team serves as the fact finders and may assist with initial inquiry and, where applicable, be tasked with investigating the report, preparing written documents, making findings of fact, including analysis of the facts gathered.

ii. Investigation

The investigation generally will include interviews with the parties, if available; interviews with other witnesses as needed; and a review of relevant evidence, as appropriate. Disclosure of facts to witnesses shall be limited to what is reasonably necessary to conduct a fair and thorough investigation. Participants in an investigation are encouraged to maintain privacy of such details so as to protect the integrity of the investigation and the privacy of involved parties; however, such encouragement is not meant to impinge on any legal rights participants may have.

Parties who elect not to participate in the investigation or who withhold information from the investigation do not have the ability to offer evidence later as an attempt to appeal if the information could have been offered during the investigation. Failure to offer evidence prior to an appeal does not constitute grounds for appeal on the basis of new evidence.

The respondent will be informed of the substance of the reported information and related policies that may have been violated. If the respondent cannot be located (i.e, not currently enrolled and/or the University has outdated contact information), attempts at notification shall be documented.

Witnesses (as distinguished from the parties) are expected to cooperate with any notice to meet with regard to a University investigation and the Equity Compliance Resolution Process. Failure of a witness to cooperate with and/or participate in the Equity Compliance Resolution Process may constitute a violation of policy and may be subject to discipline. Witnesses may provide written statements in lieu of interviews during the investigation and/or may be interviewed remotely by phone, Skype (or similar technology), if the investigators determine that the situation, timeliness, or efficiency dictates a need for these options in interviewing.

During the investigation, both the Complainant and the Respondent will be asked to provide oral (through an interview) statements and may also choose to provide written statements. A Complainant or Respondent may opt not to participate in the investigation or to provide a written statement in lieu of or in addition to any interview with the investigators. However, it is important to note that any decision by a party not to participate or to limit participation in turn limits the ability of the University to discover facts that may support their version of the key events.

The parties may each have an Advisor of their choice present with them for all meetings and interviews within the formal resolution process, if they so choose. The parties may select whoever they wish to serve as their Advisor as long as the Advisor is eligible and available. The University may permit parties to have more than one Advisor upon special request to the Executive Director/Title IX Coordinator. The decision to grant this request is at the sole discretion of the Executive Director/Title IX Coordinator and will be granted equitably to all parties.

The Advisor may be a friend, mentor, family member, attorney, or any other supporter a party chooses to advise them who is available and eligible. Choosing an Advisor who is also a witness in the process creates potential for bias and conflict-of-interest. A party who chooses an Advisor who is also a witness can anticipate that issues of potential bias will be explored by the Resolution Team. The parties may choose an Advisor from inside or outside the campus community. If one or both of the parties does not have an Advisor, they may request that the Executive Director/Title IX Coordinator assign a trained Advisor for any party if the party chooses. An advisor may be present with the respective party at scheduled interviews and other meetings but is not permitted to speak on behalf of the party. Advisors may confer quietly with their advisee or in writing as necessary, as long as they do not disrupt the process.

Both the complainant and the respondent will be asked to provide a list of possible witnesses as well as any written or physical evidence (e.g., texts, social media, emails, photos, medical reports, etc.) that they wish to be considered by the investigatory team. Any evidence that the investigatory team believes is relevant and credible may be considered, including history and pattern evidence. The investigatory team may exclude evidence that is improperly prejudicial, irrelevant or immaterial. Unless the investigatory team determines it is appropriate, the investigation and the outcome determination generally will not consider: (1) incidents not directly related to the possible violation, unless they show evidence of a pattern, (2) the sexual history of the reporting party (though there may be a limited exception made in regards to the sexual history between the parties, if applicable), or (3) the character of parties. While previous conduct violations by the respondent are not generally admissible as information about the present allegation, the investigators may supply the resolution team (defined below, under “Formal Resolution”) with information about previous good faith allegations regarding the respondent and/or findings to consider as evidence of pattern and/or predatory conduct.

SUMMARY OF THE INVESTIGATION PROCESS:

All investigations will be thorough, reliable, impartial, prompt and fair. Investigations entail interviews with all relevant parties and witnesses, obtaining available evidence and identifying sources of additional information, as necessary.

The Equity Compliance Office will provide the complainant and respondent with a description of the alleged violation(s), a list of all policies that may have been violated, a description of the applicable procedures, description of interim measures (if applicable), and a statement of the potential sanctions/responsive actions that could result. Each party will have the opportunity to ask questions or clarification regarding policy and procedure. Both parties are advised of process, including their rights and that they may have a support person of their choosing present for all meetings attended by the individual.

The investigators will typically take the following steps, if not already completed (not necessarily in the order presented):

In coordination with campus partners (e.g., the Executive Director/Title IX Coordinator and/or Deputy Title IX Coordinator, who in turn might work with Student Development, Human Resources, the Provost’s Office, etc.), initiate or assist with any necessary supportive measures;
Identify relevant policy (and policy provisions) that may have been violated;
Assist the Executive Director/Title IX Coordinator with an initial assessment to determine if there is reasonable cause to believe the Respondent has violated policy;
Commence a thorough, reliable, prompt, and impartial investigation, strategically planning and identifying a witness list, evidence list, intended timeframe, and order of interviews for all parties and witnesses;
Prepare the initial Notice of Investigation and Allegation (NOIA) on the basis of the initial assessment. Notice may be amended, depending on how the investigation unfolds, and potential policy violations may be added or dropped as more is learned. Investigators will update the NOIA accordingly and provide it to the parties.
Notice should inform the parties of their right to have the assistance of a Pool member as a process Advisor appointed by the University or other Advisor of their choosing present for all meetings attended by the advisee.
When formal notice is being given, it should provide the parties with a written description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures, and a statement of the potential sanctions/responsive actions that could result;
Meet with the complainant to gather information and/or finalize their statement, if necessary;
Meet with the respondent to gather information and obtain/finalize their statement;
Give an instruction to the parties to preserve any evidence that is directly related to the allegations;
Gather from each party suggested evidence or witnesses (and what information they believe such witnesses may have);
Interview all relevant individuals and conduct follow-up interviews as necessary;
Prior to the conclusion of the investigation, advise the complainant and respondent of a list of witnesses whose information may be included in the investigation report;
Ask each party to suggest questions they wish the investigators to ask of the other party and/or witnesses;
Make good faith efforts to notify the parties of any meeting or interview involving the other party, in advance when possible;
Write a comprehensive investigation report fully summarizing the investigation and all evidence;
Provide parties with a Draft Investigation Report which will contain all relevant information and evidence to be used in rendering determination and provide each with a full and fair opportunity to address the evidence, during the investigation and in review of the Draft Investigation Report. The investigators may incorporate feedback from the parties, as appropriate;
Investigators may choose to respond in writing in the report to the responses of the parties, and/or to share the responses between the parties for their responses, while also ensuring that they do not create a never-ending feedback loop;
The Draft Investigation Report will, at a minimum, include a statement of charges (potential policy provisions that may have been violated), and a description of the applicable standards, a summary of the information considered, and where applicable, may include an assessment of credibility of parties, witnesses, and information provided;
Complete the investigation promptly, and without unreasonable deviation from the intended timeline;
Provide regular updates to the parties throughout the investigation, as appropriate;

At any point during the investigation, if it is determined there is no reasonable cause to believe that University policy has been violated, the Executive Director/Title IX Coordinator has authority to terminate the investigation and conclude resolution proceedings and/or refer the matter for informal resolution, other policy action, and/or educational follow up. Parties would be advised if an investigation is being closed (if the allegations involved domestic violence, dating violence, sexual assault or stalking, each party will be notified in writing that the investigation has concluded).

The investigation process affords equitable rights to parties, in providing and reviewing information to inform decision making. Upon review of the investigatory summary, the resolution process described below will be undertaken or the respondent may choose to accept responsibility for violation of policy in which case the matter will proceed to referral for resolution statement, corrective action, and/or consequences.

iii. Formal Resolution

At the conclusion of the investigation, the investigatory team will share the Investigatory Summary with a trained investigator from the Resolution Process Pool (Deputy Coordinator or designee not otherwise involved with the given investigation), who will review the information. This third investigator has the option to ask questions of the investigatory team or suggest further contact with the parties or witnesses if that investigator finds it appropriate to obtain more information or to clarify the information gathered and documented by the investigatory team. This third investigator together with the investigatory team are referred to throughout this process as the “Resolution Team”, and it is that team that will determine whether it is more likely than not that a policy violation(s) has occurred.

The investigatory team will prepare an Investigation Report. The Investigation Report will include the content provided in the Draft Investigation Report shared with the parties, as previously stated, including at a minimum a statement of charges, a description of the applicable standards, a summary of the information considered and, where applicable, may include an assessment of the credibility of parties, witnesses, and the information provided. The report also will include the Resolution Team’s analysis of the information and decision making. In the report, the team may, at their discretion, include guidelines for interpreting or weighing any evidence (such as scientific evidence, if any such evidence has been provided or gathered).

In determining whether a policy violation has occurred, the Resolution Team will apply the preponderance of the evidence standard; that is, they will determine whether the evidence gathered indicates it is more likely than not a violation has occurred. In this formal resolution process, legal terms like “guilt,” “innocence,” and “burdens of proof” are not applicable; nonetheless the university never assumes a Respondent is in violation of university policy. The resolution process is conducted to take into account the totality of all evidence available, from all relevant sources for review in making determination of responsibility or not. The Resolution Team’s decision is determined by a majority vote.

For charges of policy/policies violation, the possible outcomes are:

Responsible: It is determined that the evidence/information available to the University indicates violation of policy.
Not Responsible: It is determined that there is insufficient evidence/ information available to the University to indicate violation of policy.

The Resolution Team will finalize the Investigation Report to include a written resolution statement indicating the finding and rationale for the finding. The resolution statement, written in consultation with the Executive Director/Title IX Coordinator, may include recommendations for proposed remedial actions, including but not limited to, educational programs, counseling/coaching intervention, mediation, and remedies for the complainant, as appropriate.

In instances where there is a “Responsible” outcome indicating policy violation, the Executive Director/Title IX Coordinator will share the Investigation Report with the appropriate office, e.g., the Provost, the Vice President for Human Resources, the Vice President for Student Development, or Office of Legal Affairs (or specified designee of each such official or office), depending on the identity of the respondent (i.e., whether faculty, staff employee, student, or visitor) to determine disciplinary consequences or corrective action. Consequences/corrective action determination will be made in consultation between the Executive Director/Title IX Coordinator and respective office, and consider both the nature and outcome of the case and relevant conduct status or disciplinary history of the individual.

If the Resolution Team finds that the Nondiscrimination and Anti-Harassment Policy was not violated but they found that intentionally disruptive, bullying, or harassing behavior occurred, or a relationship was harmed that could be mended, they may recommend additional action to address the troubling behavior and/or to prevent recurrence. They may, in consultation with the Executive Director/Title IX Coordinator, recommend mediation, counseling or other restorative steps be taken. If based upon the investigation the resolution team believes another University policy may have been violated such that corrective action may be warranted, appropriate content from the investigation may be shared in referral to the appropriate office.

The complainant and the respondent shall be informed of the outcome, upon completion of the investigation, by the Executive Director/Title IX Coordinator. In most instances, the complainant may be notified generally that the matter has been referred for disciplinary action and related actions, such as no contact expectations, and may be notified of disciplinary action and related actions to the extent permitted by law. For matters that include charges of sexual assault, intimate partner violence (dating/domestic violence), or stalking, the outcome will be communicated in writing of the findings and of consequences and/or other actions taken or recommended to resolve the matter, such as an expectation that the respondent not contact the complainant. The respondent shall be informed of the findings and of actions taken or recommended to resolve the matter and related disciplinary consequences and/or corrective action and/or shall be notified if other actions identified during the investigatory process necessitate referral for other policy consideration. Any remedy will be consistent with the seriousness of the offense, and will be designed and imposed in a manner reasonably calculated to end harassment and to prevent future policy violation.

The Executive Director/Title IX Coordinator, designee, and/or Deputy Title IX Coordinator will oversee the implementation of any remedy. The Executive Director/Title IX Coordinator and/or Deputy Title IX Coordinator will also follow up to ensure that the remedy is effectively preventing recurrence of the harassment and serving as the proper remedy for any discriminatory effects on the complainant and others, as appropriate. All situations are subject to follow-up after a period of time to assure that remedies and any other resolution measures have been implemented effectively.

iv. The Appeal Process

If a “Responsible” outcome is determined, the respondent may file a request for appeal (“Request for Appeal”) of the findings and consequences. If the respondent accepted responsibility, the request for appeal will only be considered for the consequences imposed. For cases where the matter involves sexual assault, dating violence, domestic violence or stalking, the complainant and respondent may request an appeal of the findings, whether Responsible or Not Responsible, and/or consequences imposed. If one party submits a request for appeal, the other party will also have the opportunity to submit a response as well.

Grounds for appeal shall be based on the emergence of new evidence that was previously unavailable, or based on the grounds that some aspect of this Equity Compliance Resolution Process was not adequately followed, as described in further detail below.

All appeals will be conducted in an impartial manner by a “Appeal Review Committee” (“ARC”), consisting of (a) a designee from either the Provost’s Office, Vice President of Student Development Office or the Office of Human Resources (depending on whether the respondent is a student, faculty or a staff employee); (b) a deputy coordinator who was not involved in the investigatory or resolution team; and (c) a Resolution Process Pool member who was not involved in the investigatory or resolution team. The ARC appeals process is as follows:

The appealing party must submit a request for appeal, describing the basis of their request and all supporting documentation within 5 business days of the date of notice from the Equity Compliance Office of the outcome of the investigation. This request is to be submitted to the Executive Director/Title IX Coordinator (using the link or instructions provided in the outcome letter) who will review the request to determine whether sufficient reason is presented to consider an appeal. If so, the Executive Director/Title IX Coordinator will appoint the ARC for considering the particular appeal. Mere disagreement by the appealing party with a finding of fact by the investigatory or resolution team is insufficient to support an appeal.

Only those requests that are determined to meet the following criteria will be forwarded to the ARC for appeal consideration:

The appealing party has submitted/presented information that indicates a clear error in the Equity Compliance Resolution Process that may have affected the final outcome of the investigation and resulting actions taken. To establish the possibility of a clear error, the appealing party must point to a specific step in the investigatory process that was not undertaken in accordance with the procedure set forth above.
The appealing party has submitted/presented new evidence or new information that did not exist at the time of the investigation that would have had a bearing on the investigatory team’s findings of fact. Information or witnesses that were known to the appealing party at the time of the investigation will not be considered new evidence for an appeal.

(2) The investigator appointed to the ARC will undertake an initial review of the appeal. In doing so, this investigator may consult with the original resolution team on the case, review the Investigation Report, make other inquiries of the Executive Director/Title IX Coordinator and consider other information as provided by the appealing party, all as they deem relevant.

(3) The ARC will deliberate over the issues presented by the appealing party(ies), with the benefit of any clarifications or other information gathered by the investigator member of the ARC in appeal step #2. The ARC will not reweigh the evidence. The actions that may be taken by the ARC include but are not limited to:

Determination that no corrective action is needed as the new evidence/information and/or error would not change the original findings in the case.
Determination that the original resolution team is to be reconvened to consider the new evidence/information.
Determination that the case should be taken up by a new investigatory team or referred back to some other step in the Equity Compliance Resolution Process.

In rare cases, the ARC may find it reasonable to suggest that the consequences/sanctions communicated in the outcome letter should be administratively altered. To be implemented, any such suggestion shall be done in consultation with the Executive Director/Title IX Coordinator. The ARC will prepare a rationale for such alteration and forward the modified report to the University official who received the original report (e.g., the Provost, the Vice President for Student Development, the Vice President for Human Resources or Office of Legal Affairs, depending on the identity of the respondent).

(4) Decisions rendered by the ARC or actions taken following the ARC’s decision are final and not subject to further appeal. Cases that are sent back to the resolution team or another step in the Equity Compliance Resolution Process are not eligible for a second appeal.^[7]

Notification will be provided in writing of the outcome of the appeal, including whether the appeal request was eligible for appeal and, if it was eligible, the ARC’s determination.

8. Records

In implementing this process as the means of enforcing the University’s Nondiscrimination and Anti-Harassment Policy, records of all reports, information submitted, investigations, resolutions, and related records of remedy or follow up will be confidentially maintained by the Equity Compliance Office for seven years as part of their records. Outcomes that include findings of responsibility for students will be noted in the student conduct records maintained by the Office of Community Standards & Civility. Records of all reported concerns, regardless of whether resolved through formal or informal processes, will be kept in the Equity Compliance Office records.

9. Statement of Rights in the Equity Compliance Resolution Process

Complainant’s and Respondent’s Rights

To be treated with respect by University officials.
To appropriate resolution (which may include a formal investigation) of all reports of discrimination and/or harassment made in good faith to the appropriate University official(s).
To receive, when applicable, notification that the respondent has been officially notified of charges of violating the University’s Nondiscrimination and Anti-Harassment Policy.
To take advantage of campus support resources (such as Campus Ministry, the University Health and Counseling Centers for students, and Employee Assistance Program services for employees).
To experience a safe living, educational and work environment, and a collaborative process to explore options, when needs arise.
To have an Advisor of their choosing during any meeting they attend with investigators.
The Advisor may be present, but is not permitted to speak/participate on behalf of the party.
To decline to participate in informal resolution as the means for resolving a matter.
To receive amnesty for minor student misconduct (such as alcohol or drug violations) that is ancillary to the incident.
To be free from retaliation for reports made, or otherwise participating in an inquiry or investigation, in good faith.
To have reports heard in substantial accordance with these procedures.
To full participation in this process, including opportunity to provide evidence, suggest witnesses, and respond to fact finding included in the investigation process report.
To be informed of the outcome/resolution of the investigation process, sanctions where permissible and the rationale for the outcome, where permissible. If the matter involved charges of intimate partner violence (dating/domestic violence), sexual assault or stalking, this will be in writing.
For residential students, the ability to request housing and living alternatives, if appropriate.
A “no contact order,” if appropriate. A no contact order is an order from a University Official to have no contact with a particular person or persons.

Additional restrictions may be imposed as supportive measures, to include restricted access to University facilities or specific areas as appropriate. The University may add terms to the no contact order as necessary and in its discretion based on the reported incident as well as based on any concerns that arise during any investigation.

10. Consequences/Corrective Actions

Factors considered when determining a consequences/corrective action may include:

The nature, severity of, and circumstances surrounding the violation
An individual’s disciplinary history
Previous allegations or allegations involving similar conduct
Any other information deemed relevant by the decision makers
The need for sanctions/responsive actions to bring an end to the misconduct
The need for sanctions/responsive actions to prevent the misconduct
The need to remedy the effects of the misconduct on the reporting party and the community

The sanctions or other responsive actions recommended may range from a reprimand up to and including suspension or expulsion/termination. Generally, the University considers non-consensual sexual intercourse violations to be the most serious and therefore typically imposes the most severe sanctions on such violations, including suspension or expulsion for students and termination for University employees.

Please see the Student Handbook, the Staff Corrective Action Policy and the Faculty Policy & Governance Handbook for more detailed information regarding the range of possible sanctions and/or responsive actions. Should a student or employee withdraw or resign while a formal investigation is pending, the resolution process may continue at the discretion of the Executive Director/Title IX Coordinator, and the individual will not be permitted to return to the University until the matter has been fully resolved and all sanctions (if any) have been satisfied.

11. Revision

These procedures, along with the Nondiscrimination and Anti-Harassment Policy, will be reviewed and updated (if necessary) annually, by the Executive Director/Title IX Coordinator. The presumption is that such review and update will be concluded each summer, with appropriate input received and reviewed throughout the preceding academic year. The Executive Director/Title IX Coordinator may make minor modifications to procedure that do not materially jeopardize the fairness owed to any party. However, the Executive Director/Title IX Coordinator may also vary procedures materially with notice (on the University’s website, with appropriate date of effect identified) upon determining that changes to law or regulation require policy or procedural alterations not reflected in the Nondiscrimination Policy and this procedure. Procedures in effect at the time of the reporting or other notice of an incident will apply. Policy in effect at the time of the offense will apply even if the policy is changed subsequently, unless all parties consent to be bound by the current policy.

12. Discretion

Where an issue is encountered at any juncture of a case that is not addressed specifically by this Equity Compliance Resolution Process or the Nondiscrimination and Anti-Harassment Policy, the University has the discretion to determine, in a good faith effort to comply with applicable legal requirements, how to address such an issue.

13. Potential or Perceived Conflicts of Interests and Other Unique Circumstances

Situations may arise where a conflict of interest potentially exists or is perceived to exist, depending on the parties and reporting relationships involved; where the complexity of a matter may impede the University’s ability to complete an investigation in a timely manner; or where the matter is otherwise sensitive. In any circumstance where such need arises, administrators other than the staff of the Equity Compliance Office, such as someone from the University’s Office of Legal Affairs or someone retained by that office, may play a role in managing the investigation of the matter.^[8] At times, this may include the retention of an external investigator/investigation team. An external investigator may be retained if a report names certain officers of the University (e.g., certain Vice Presidents, the Provost, the President) as a respondent, or if anyone who reports to or supervises the Executive Director/Title IX Coordinator is a party to a report. Other measures may be adopted, as warranted and in the University’s discretion, in an attempt to avoid or otherwise manage any perceived or actual conflict of interest. Anyone who is a party to a report will not play any role (decision-making or otherwise) in the University’s handling of the report.

In certain rare circumstances (depending on the parties involved), the Chair of the Audit Committee of the University’s Board of Trustees may need to be notified about a report and involved in the resolution of the matter.

14. Community Expectations

The University encourages all members of its community, as well as visitors, to embrace and abide by the concepts of fairness reflected in this document. Accordingly, the University encourages honesty and candor on the part of anyone participating in any investigatory process. Further, where the investigatory process finds that no policy violation occurred yet wounds nonetheless are known to exist, the University encourages the parties involved to participate in attempts to bring healing to the fractured relationship, and in so doing, to exercise patience, cooperation and compassion.

Where an issue arises that is outside the scope of this Equity Compliance Resolution Process – i.e., an issue not related to misconduct directed at a protected class – staff employees should refer to the employee Dispute Resolution Process; faculty should present the matter to the Faculty Hearing Committee on Grievances; and students should contact the Dean of Students Office at 937-229-1212 or by email at deanofstudents@udayton.edu. Any visitor to campus who experiences perceived misconduct should consult with their contact on campus, or contact the Office of Legal Affairs (legalaffairs@udayton.edu). In any situation where an emergency exists, contact Public Safety at 911 or 937-229-2121.

Ideas for improving this process, as well as any other comments, should be directed to the Executive Director/Title IX Coordinator (equitycompliance@udayton.edu).

15. History

These procedures were adopted December 10, 2013, implemented January 1, 2014, amended on October 27, 2014, August 19, 2015, July 10, 2017, August 1, 2018, September 3, 2019, and August 13, 2020.

^[1] Terms defined in the Nondiscrimination Policy carry those same definitions in this process. Where a term is used in this process but the precise meaning is not known, please consult the Nondiscrimination Policy and refer to the definition there. Also, references to the “Title IX Coordinator” throughout this process should be read to include a trained designee.

^[2] The Sexual Harassment Resolution Process may be used to resolve qualifying allegations of Sexual Harassment (including sexual assault, dating violence, domestic violence, and stalking, as defined in the Nondiscrimination and Anti-Harassment Policy) involving students, staff, and faculty members. If the Sexual Harassment Resolution Process is not applicable, the Equity Compliance Resolution Process may be used, at the discretion of the Executive Director/Title IX Coordinator.

^[3] Note that the process described in this document is not meant to subject parties to multiple proceedings.

^[4] Parties refers to the Complainant and Respondent, as defined in the Nondiscrimination and Anti-Harassment Policy.

^[5] And, with respect to University employees, the University’s Mandatory Reporting Policy requires that ALL employees except doctors, counselors, and ordained members of the clergy acting in that capacity report possible discrimination or harassment to the Executive Director/Title IX Coordinator.

^[6] A description of the Resolution Process Pool can be found in the Nondiscrimination Policy. As explained in the Nondiscrimination Policy, in some circumstances, Resolution Process Pool members can be external to the University.

^[7] If the respondent is a tenured faculty member, and the matter implicates academic freedom, the Faulty Handbook affords an option for appeal of the appropriateness of the sanction imposed. Effort will be made to work collaboratively in such appeal requests.

^[8] Importantly, when such individuals have a role in managing an investigation, they do not play a decisional role. Rather, they serve as a resource for the investigators in helping to ensure that the University’s policies and processes are followed. In addition, the Office of Legal Affairs, in their ordinary role as legal counsel for the University, may provide legal advice regarding the University’s compliance obligations and general legal risks.

CONTACT

Equity Compliance Office Rm 240

Marianist Hall
300 College Park
Dayton, Ohio 45469 - 0701

937-229-3622
Email

Equity Compliance Resolution Process