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814-863-0471 aao@psu.edu

Employee Disciplinary Proceeding for Reports of Discrimination or Harassment

Effective August 14, 2020

Effective August 14, 2020, the University will implement the specific procedural requirements described below to address complaints of Prohibited Conduct under University Policy AD91.  These procedures apply equally to both parties, whether the party is a faculty or staff member.

I. POLICY STATEMENT

The University is committed to equal access to programs, facilities, admission, and employment for all persons. It is the policy of the University to maintain an environment free of harassment and free of discrimination against any person because of age, race, color, ancestry, national origin, sex, sexual orientation,  gender, perceived gender, gender identity, physical or mental disability, religion, creed, service in the uniformed services (as defined in state and federal law), veteran status, marital or family status, pregnancy, pregnancy-related conditions, genetic information or political ideas. Discriminatory conduct and harassment violates the dignity of individuals, impedes the realization of the University’s educational mission, and will not be tolerated.

This policy shall not be construed to restrict academic freedom at the University, nor shall it be construed to restrict constitutionally protected expression.

Conduct prohibited by this policy may also violate applicable federal and state law. Additional information about how to pursue or report a violation of this policy, is set forth below

II. FREE EXPRESSION AND ACADEMIC FREEDOM

The University is committed to its long-standing tradition of academic freedom and free expression.  The University is an institution whose members may express themselves, while protecting and respecting the rights of others to learn, to conduct research, and to carry out the essential functions of the University free from interference or obstruction.  When addressing complaints of alleged violations of this Policy, the University will take all permissible actions to respond appropriately while respecting the rights of free expression and academic freedom.  See Penn State Policies AC64, AC47 and AD51.

III. RETALIATION PROHIBITED & CORRECTIVE ACTION

Pursuant to Penn State Policy AD67 and this Policy, Retaliation is a violation of this Policy and the law, and is a serious separate offense. Intimidation, threats, coercion, and discrimination against any individual for the purpose of interfering with any right or privilege secured by University policy, or 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 is strictly prohibited by University policy. See Penn State Policy AD67.

IV. FALSE REPORTS

Willfully making a false report of Prohibited Conduct is a violation of University Policy and is a serious offense.  Any person who willfully makes or participates in making a false or frivolous report under this Policy may be subject to disciplinary action.  False reporting may also violate state criminal statutes and civil defamation laws.

V. CONFIDENTIALITY AND DISCLOSURE

To provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, any hearings associated with the administration of these procedures are not open to the general-public.  Accordingly, documents prepared in anticipation of the hearings (including the Complaint, the Investigative Report, the notices of hearing, and any prehearing submissions referenced above) and documents, testimony, or other information introduced at the hearings may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law or legal proceedings. In particular, in order to respect the reasonable privacy of all participants, no party (or Advisor), nor any witness, may record hearing(s) or disclose any recording of the hearing(s) or any portion thereof.  Any violation of confidentiality requirements may result in sanctions.

VI. TERMS AND DEFINITIONS

 a. Advisor

An individual who has agreed to serve as an informal provider of support and advice for a Complainant or Respondent. Both parties may select an individual of their choice to serve as their Advisor. Both parties have the right to have their Advisor present during any grievance proceeding or any related meeting. The role of the Advisor is to assist and guide the party during all related Affirmative Action Office proceedings. The Advisor, upon a party’s request may (1) accompany the party in any related meeting/proceeding, (2) advise the party in the preparation and presentation of sharing of information, (3) advise the party in the preparation of any appeals.  The Advisor shall not perform any function in the process other than advising the party and may not make a presentation or represent the party. If, at any point, an Advisor becomes disruptive or fails to follow the rules for participation as set forth in these procedures, the University reserves the absolute and non-appealable right to remove the Advisor from the proceeding, and, if appropriate, any future meetings/proceedings.  In cases where selecting an advisor in accordance with this policy is inconsistent with an approved labor agreement, the labor agreement provision takes precedence.

b. Complainant

A Complainant is an individual who is alleged to be the victim of Prohibited Conduct. A Complainant may be an employee, student, or other affiliate of the University

c. Consent

Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent must be informed, freely given and mutual.  If intimidation, threats, or physical force are used there is no consent.  If a person is mentally or physically incapacitated so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent. This includes incapacitation due to alcohol or drug consumption, or being asleep or unconscious, where the respondent knew or reasonably should have known that the person was incapacitated.  Inducement of incapacitation of another with the intent to affect the ability of an individual to consent or refuse to consent to sexual contact almost always, if not always, negates consent. Silence, in and of itself, cannot be interpreted as consent.  Consent can be given by words or actions, as long as those words or actions consist of an affirmative, unambiguous, conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent can be limited, meaning consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Consent is revocable, meaning consent can be withdrawn at any time.  Thus, consent must be ongoing throughout a sexual encounter.  Whether a person has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.

 d. Days

Days refer to business days, excluding weekends and those days which are designated as holidays by the official University calendar or by action of the University President or Provost, unless otherwise specified herein.

 e. Emergency Removal.

The‌ ‌University‌ ‌may‌ ‌remove‌ ‌a‌ ‌Respondent‌ ‌from‌ ‌the‌ ‌University’s‌ ‌education‌ ‌program‌ ‌or‌ ‌activity,‌ ‌on‌ ‌an‌ ‌emergency‌ ‌basis,‌ ‌after‌ ‌undertaking‌ ‌an‌ ‌individualized‌ ‌safety‌ ‌and‌ ‌risk‌ ‌analysis‌ ‌if‌ ‌such‌ ‌analysis‌ ‌determines‌ ‌that‌ ‌there‌ ‌is‌ ‌an‌ ‌immediate‌ ‌threat‌ ‌to‌ ‌the‌ ‌physical‌ ‌health‌ ‌or‌ ‌safety‌ ‌of‌ ‌a‌ ‌student‌, employee ‌or‌ ‌other‌ ‌individual‌ ‌arising‌ ‌from‌ ‌the‌ ‌allegations‌ ‌of‌ ‌Prohibited Conduct.‌ ‌In‌ ‌the‌ ‌case‌ ‌of‌ ‌such‌ ‌removal,‌ ‌the‌ ‌University‌ ‌will‌ ‌provide‌ ‌the‌ ‌Respondent‌ ‌with‌ ‌notice‌ ‌and‌ ‌an‌ ‌opportunity‌ ‌to‌ ‌challenge‌ ‌the‌ ‌decision‌ ‌immediately‌ ‌following‌ ‌the‌ ‌removal.

The process for an emergency removal of employees will be managed consistent with HR and departmental policies.

f. Formal Complaint

A‌ ‌document‌ ‌filed‌ ‌by‌ ‌a‌ ‌Complainant‌ ‌‌alleging‌ ‌Prohibited Conduct‌ ‌(as‌ ‌defined‌ ‌herein)‌ ‌against‌ ‌a‌ ‌Respondent‌ ‌and‌ ‌requesting‌ ‌that‌ ‌the‌ ‌University  investigate‌ ‌the‌ ‌allegation‌ ‌of‌ ‌Prohibited‌ ‌Conduct.‌

g. Hearing Officer

The Hearing Officer charged with adjudicating alleged violations of University Policy AD91. Only individuals who have participated in Hearing Officer training conducted by the Pennsylvania State University or comparable in-depth training on these procedures will be permitted to serve as Hearing Officers.

h. Prohibited Conduct

Acts of Bias. Bias incidents refer to conduct that is in violation of a University policy, rule or regulation and is motivated by discriminatory bias against or hatred toward other individuals or groups based on characteristics such as age, ancestry, color, disability or handicap, genetic information, national origin, political belief, race, religious creed, sex, sexual orientation gender identity or veteran status.

Bias incidents may violate the Student Conduct Code, and other University policies or laws, while some acts of bias may be considered protected speech or expression. Penn State protects free expression of ideas, even if they are unpopular, because this is vital in promoting learning in an educational setting. Freedom of speech can sometimes protect controversial ideas and sometimes even offensive and hurtful language; however, it does not protect personal threats, discriminatory conduct or other acts of misconduct that violate the Student Code of Conduct, other University policies or relevant federal, state and local laws.

Discrimination is conduct of any nature that denies an individual the opportunity to participate in or benefit from a University program or activity, or otherwise adversely affects a term or condition of an individual’s employment, education, or living environment, because of the individual’s age, race, color, ancestry, national origin, sex, sexual orientation,  gender, perceived gender, gender identity, physical or mental disability, religion, creed, service in the uniformed services (as defined in state and federal law), veteran status, marital or family status, pregnancy, pregnancy-related conditions, genetic information or political ideas.

Gender-based harassment is verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile conduct based on sex, sex-stereotyping, sexual orientation or gender identity, but not involving conduct of a sexual nature, when such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities. For example, persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity or exclusion from an activity based on sexual orientation or gender identity also may violate this Policy.

Harassment means behavior consisting of physical or verbal conduct that is sufficiently severe or pervasive such that it substantially interferes with an individual’s employment, education or access to University programs, activities or opportunities and would detrimentally affect a reasonable person under the same circumstances. Harassment may include, but is not limited to, verbal or physical attacks, graphic or written statements, threats, or slurs. Whether the alleged conduct constitutes prohibited Harassment depends on the totality of the particular circumstances, including the nature, frequency and duration of the conduct in question, the location and context in which it occurs, and the status of the individuals involved.

Retaliation, as defined in University Policy AD67, is also prohibited by this policy and may subject the individual who retaliates in violation of this or other University policy to discipline or sanctions.

Sex-based harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature, when: (1) submission to or rejection of such conduct is made either explicitly or implicitly a condition of an individual’s employment or academic standing or is used as the basis for employment decisions or for academic evaluation, grades, or advancement (quid pro quo); or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities (hostile environment).

Information regarding issues of sex-based harassment specifically, including definitions and information about the University’s procedures for reporting and processing such incidents, can be found in University Policy AD85.  After an initial assessment of the facts, the Title IX Coordinator will determine if the alleged Prohibited Conduct falls under the guidelines of Title IX (Policy AD85). If not, the case will be managed subject to the procedures set forth in this Policy.

i. Respondent

A Respondent is an individual who has been alleged to be the perpetrator of Prohibited Conduct as defined herein.

j. Retaliation

Retaliation means any adverse action taken by a member of the University faculty, staff, or student body against any individual on the basis of a complaint made by such individual, or on the basis of such individual’s participation in an investigation, hearing, or inquiry by the University, or participation in a court proceeding relating to suspected Prohibited Conduct at the University. Retaliation shall include, but not be limited to, harassment, discrimination, threats of physical harm, job termination, punitive work schedule or research assignments, decrease in pay or responsibilities, or negative impact on academic progress. See Penn State Policy AD67.

k. Supervisor/Supervisory Authority.

A University employee who has the power to control or influence another person’s academic advancement, employment, or extracurricular participation, including but not limited to, admission, grades, assignments, evaluations, hiring, work conditions, compensation, promotion, discipline, supervision of dissertations/theses, recommendations, financial support, or participation in extracurricular programs.

 l. Supportive Measures

Supportive‌ ‌Measures‌ ‌are‌ ‌non-disciplinary,‌ ‌non-punitive,‌ ‌individualized‌ ‌services‌ ‌offered‌ ‌as‌ ‌appropriate,‌ ‌as‌ ‌reasonably‌ ‌available,‌ ‌and‌ ‌without‌ ‌fee‌ ‌or‌ ‌charge‌ ‌to‌ ‌the‌ ‌Complainant‌ ‌or‌ ‌the‌ ‌Respondent‌ ‌before‌ ‌or‌ ‌after‌ ‌the‌ ‌filing‌ ‌of‌ ‌a‌ ‌Complaint‌ ‌or‌ ‌where‌ ‌no‌ ‌Complaint‌ ‌has‌ ‌been‌ ‌filed.‌ Supportive‌ ‌Measures‌ ‌are‌ ‌designed‌ ‌to‌ ‌restore‌ ‌or‌ ‌preserve‌ ‌equal‌ ‌access‌ ‌to‌ ‌the‌ ‌University’s‌ Education‌ ‌Program‌ ‌or‌ ‌Activity‌ ‌without‌ ‌unreasonably‌ ‌burdening‌ ‌the‌ ‌other‌ ‌party,‌ ‌including ‌measures‌ ‌designed‌ ‌to‌ ‌protect‌ ‌the‌ ‌safety‌ ‌of‌ ‌all‌ ‌parties‌ ‌or‌ ‌the‌ University’s ‌educational‌ ‌environment, ‌or‌ ‌to‌ ‌deter‌ ‌sexual‌ ‌harassment.‌  ‌ ‌

m. Time Periods

The University will make every reasonable effort to resolve complaints in reasonably prompt timeframes. Stated timelines are not binding and create no rights for the parties. The University can extend the deadlines at its discretion.

There is no time limit on a Complainant’s decision to file a Complaint.

 VII. REPORTING

The‌ ‌Affirmative Action Office ‌is‌ ‌the‌ ‌designated‌ unit within ‌the‌ ‌University‌ ‌designated to‌ ‌coordinate‌ ‌its‌ ‌efforts‌ ‌to‌ ‌address allegations of employee misconduct occurring under University policy AD91. ‌ ‌ ‌

‌Any‌ ‌person‌ ‌may‌ ‌report‌ ‌discrimination or harassment‌ ‌(whether‌ ‌or‌ ‌not‌ ‌the‌ ‌individual‌ ‌reporting‌ ‌is‌ ‌the‌ ‌person‌ ‌alleged‌ ‌to‌ ‌be‌ ‌the‌ ‌victim‌ ‌of‌ ‌conduct‌ ‌that‌ ‌could‌ ‌constitute‌ ‌discrimination‌ ‌or‌ ‌harassment),‌ ‌in‌ ‌person‌1‌,‌ ‌by‌ ‌mail,‌ ‌by‌ ‌telephone,‌ ‌or‌ ‌by‌ ‌email,‌ ‌using‌ ‌the‌ ‌contact‌ ‌information‌ ‌listed‌ ‌below. ‌ ‌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 ‌Affirmative Action Office.‌ ‌[1]

The Affirmative Action Office
328 Boucke Building
University Park, PA 16802
(814) 863-0471
Affirmativeaction.psu.edu

 A. Supportive Measures

Throughout the processes and procedures outlined below, the Complainant(s) and Respondent(s) shall be offered appropriate Supportive Measures and protection from retaliation (see Penn State Policy AD67).

 Supportive Measures are designed to restore or preserve equal access to the University’s education programs and activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter sexual harassment. Upon notice that any person has allegedly experienced actions that could constitute Prohibited Conduct as defined herein, the Affirmative Action Office will respond promptly by offering Supportive Measures and an explanation of the Complainant’s option to request a formal investigation, subject to an initial assessment of the complaint.

The party is not required to request a formal investigation to receive Supportive Measures. The provision of Supportive Measures will not be conditioned on the Complainant’s participation in any formal investigation.

Supportive Measures are not designed or permitted to be punitive or disciplinary measures (sanctions) imposed against a Respondent.  The Respondent is presumed to be not responsible pending the outcome of a fact-finding process.  Both a Complainant and a Respondent may have good-faith bases for requesting Supportive Measures. The University will consider the request of either party for Supportive Measures and implement them where it is deemed reasonable and appropriate.

Supportive‌ ‌Measures‌ ‌may‌ ‌include‌ emotional support and ‌counseling with a confidential resource,‌ ‌‌modifications‌ ‌of‌ ‌work‌ ‌schedules,‌ ‌campus‌ ‌escort‌ ‌services,‌ ‌mutual‌ ‌restrictions‌ ‌on‌ ‌contact‌ ‌between‌ ‌the‌ ‌parties,‌ ‌changes‌ ‌in‌ ‌work‌ ‌‌locations,‌ ‌leaves‌ ‌of‌ ‌absence,‌ no-contact directives, emergency removal ‌and‌ ‌other‌ ‌similar‌ ‌measures.‌ ‌The‌ ‌University‌ ‌must‌ ‌maintain‌ ‌as‌ ‌confidential‌ ‌any‌ ‌Supportive‌ ‌Measures‌ ‌provided‌ ‌to‌ ‌the‌ ‌Complainant‌ ‌or‌ ‌Respondent,‌ ‌to‌ ‌the‌ ‌extent‌ ‌that‌ ‌maintaining‌ ‌such‌ ‌confidentiality‌ ‌would‌ ‌not‌ ‌impair‌ ‌the‌ ‌ability‌ ‌of‌ ‌the‌ ‌University‌ ‌to‌ ‌provide‌ ‌the‌ ‌Supportive‌ ‌Measures.‌ ‌ ‌

‌The‌ ‌Associate Vice-President for Affirmative Action‌ ‌is‌ ‌responsible‌ ‌for‌ ‌coordinating‌ ‌the‌ ‌effective‌ ‌implementation‌ ‌of‌ ‌Supportive‌ ‌Measures. ‌ ‌

B. Emergency Removal/ Individualized Safety and Risk Analysis

In rare circumstances, the‌ ‌University‌ ‌may‌ ‌remove‌ ‌a‌ ‌Respondent‌ ‌from‌ ‌the‌ ‌University’s‌ ‌education‌ ‌program‌ ‌or‌ ‌activity,‌ ‌on‌ ‌an‌ ‌emergency‌ ‌basis but only after‌ ‌undertaking‌ ‌an‌ ‌individualized‌ ‌safety‌ ‌and‌ ‌risk‌ ‌analysis‌ and only ‌if‌ ‌such‌ ‌analysis‌ ‌determines‌ ‌that‌ ‌there‌ ‌is‌ ‌an‌ ‌immediate‌ ‌threat‌ ‌to‌ ‌the‌ ‌physical‌ ‌health‌ ‌or‌ ‌safety‌ ‌of‌ ‌a‌ ‌student‌ ‌or‌ ‌other‌ ‌individual‌ ‌arising‌ ‌from‌ ‌the‌ ‌allegations‌ ‌of‌ ‌‌Prohibited Conduct.‌

For matters involving employee Respondents, the Affirmative Action Office (AAO), in consultation with the employee’s Supervisor and other relevant University officials, ‌will‌‌‌ ‌undertake‌ ‌an‌ ‌individualized‌ ‌safety‌ ‌and‌ ‌risk‌ ‌analysis‌ ‌to‌ ‌determine‌ ‌whether‌ ‌the‌ ‌allegations‌ ‌indicate the‌ ‌Respondent‌ ‌poses‌ ‌an‌ imminent ‌threat‌ ‌to‌ ‌the‌ ‌physical‌ ‌health‌ ‌or‌ ‌safety‌ ‌of‌ ‌any person‌ ‌arising‌ ‌from‌ ‌the‌ ‌allegations‌ ‌of‌ ‌Prohibited Conduct.‌ ‌If‌ ‌the‌ ‌University‌ ‌determines‌ ‌removal‌ ‌is‌ ‌appropriate,‌ ‌the‌ employee ‌Respondent‌ ‌will‌ ‌be‌ ‌provided‌ ‌with‌ ‌notice‌ ‌and‌ ‌an‌ ‌opportunity‌ ‌to‌ ‌challenge‌ ‌the‌ ‌decision‌ ‌immediately‌ ‌following‌ ‌the‌ ‌removal.‌ ‌ ‌

Affirmative Action Office Response to Reports Received

Upon‌ ‌receipt‌ ‌of‌ ‌a report of Prohibited‌ ‌Conduct‌ ‌(which‌ ‌may‌ ‌come‌ ‌from‌ ‌any‌ ‌individual and be made in person, by email or by telephone call),‌ ‌the‌ ‌Affirmative Action Office will‌ ‌promptly‌ ‌contact‌ ‌the‌ Complainant to‌ ‌discuss‌ ‌the‌ ‌availability‌ ‌of‌ ‌Supportive‌ ‌Measures and other rights and options. ‌

C. Request for a Formal Investigation

 A Complainant may request a formal investigation into allegations of Prohibited Conduct subject to an objective initial assessment of the known facts by the Associate Vice-President for Affirmative Action or designee. There is no deadline for a Complainant to request a formal investigation however, the passage of time may impact the University’s ability to gather information related to the incident.

In order to conduct a formal investigation, the Complainant must provide a description of the alleged Prohibited Conduct, including the name or names of persons allegedly responsible for the misconduct, the time, date and location of the alleged misconduct, if known, and the names of any potential witnesses, if known.

The‌ ‌University’s‌ ‌response‌ ‌must‌ ‌treat‌ ‌Complainants‌ ‌and‌ ‌Respondents‌ ‌equitably‌ ‌by‌ offering‌ ‌Supportive‌ ‌Measures,‌ ‌by‌ ‌providing‌ ‌Remedies‌ ‌to‌ ‌a‌ ‌Complainant‌ ‌where‌ ‌a‌ ‌determination‌ ‌for‌ ‌Prohibited‌ ‌Conduct‌ ‌has‌ ‌been‌ ‌made‌ ‌against‌ ‌the‌ ‌Respondent,‌ ‌and‌ ‌by‌ ‌following‌ ‌the‌ ‌grievance‌ ‌process‌ ‌as‌ ‌set‌ ‌forth‌ ‌herein‌ ‌before‌ ‌the‌ ‌imposition‌ ‌of‌ ‌any‌ ‌disciplinary‌ ‌sanctions‌ ‌or‌ ‌other‌ ‌actions‌ that‌ ‌are‌ ‌not‌ ‌Supportive‌ ‌Measures,‌ ‌against‌ ‌a‌ ‌Respondent.

The University is committed to providing both parties with appropriate and adequate notice at all phases of the process and an equal opportunity to provide information to the investigator(s) during the investigatory process and review documents gathered as part of the investigation.  Each party will be provided with an equal opportunity to review and respond to such information.

During the investigative process, the University investigator(s) will gather and review all relevant evidence, taking into consideration both the inculpatory (incriminating) and exculpatory (information that demonstrates no wrongdoing) aspects of that information prior to rendering a final decision.  In all cases, the Respondent is presumed to be not responsible for the alleged conduct unless and until a determination is made of responsibility at the conclusion of the grievance process.

 i. Initial Assessment.

 The‌ ‌Associate Vice-President for Affirmative Action or designee shall‌ ‌make‌ ‌an‌ ‌initial‌ ‌assessment‌ ‌as‌ ‌to‌ ‌whether‌ ‌the‌ ‌report‌ ‌on‌ ‌its‌ ‌face‌ ‌alleges‌ an‌ ‌act‌ ‌of‌ ‌Prohibited‌ ‌Conduct‌ ‌and‌ ‌whether‌ ‌the‌ ‌Prohibited‌ ‌Conduct‌ ‌is‌ ‌covered‌ ‌by‌ ‌University Policy.‌ This assessment may include consultation with other University administrators and officials as required by University Policy, or as deemed necessary by the Associate Vice-President.  ‌If‌, at the conclusion of the initial assessment,‌ the Associate Vice-President for Affirmative Action determines the alleged Prohibited Conduct, even if true, would not constitute a violation of University Policy, the Affirmative Action Office will not initiate a formal investigation.  If such a determination is made, the Complainant will receive an explanation in writing, including information regarding referrals to other appropriate administrative units, University officials, or resources to assist the Complainant.

VIII. INFORMAL RESOLUTION

Complaints or reports that do not meet the threshold for a formal investigation may still involve behavior that negatively impacts a specific work unit, individual employee, or group of employees.  The Affirmative Action Office may take action to resolve such matters informally by employing such measures designed to adequately address the behavior.  These measures may include , but are not limited to the following:

  • A meeting between the employee alleged to have engaged in the conduct and their Human Resources Strategic Partner. The purpose of this meetings will be to discuss the alleged behavior and review policy with the employee.  A letter of conversation or other documentation memorializing the meeting may occur and will be provided to the employee and the Affirmative Action Office.  If there is a known complainant, the Affirmative Action Office will notify the Complainant regarding the resolution of the matter consistent with University policies governing the release of personnel records information (see University Policy HR60).
  • A meeting with a staff member in the Affirmative Action Office. The purpose of this meetings will be to discuss the alleged behavior and review policy with the employee.  A letter of conversation or other documentation memorializing the meeting may occur and may be provided to the employee’s supervisor and HR Strategic Partner.  If there is a known complainant, the Affirmative Action Office will notify the Complainant regarding the resolution of the matter consistent with University policies governing the release of personnel records information (see University Policy HR60).
  • Attendance at a relevant training or similar educational program. Upon review of the behavior, the Affirmative Action Office may determine that the employee should receive additional training.  These trainings will be offered at no cost to the employee utilizing University resources.

IX. INVESTIGATION OF FORMAL COMPLAINT

In all formal investigations, the burden of gathering facts and evidence rests solely with the University and not the individual parties.  The parties are encouraged to provide all information to the investigator that is directly related to the allegations.  Such information may include the names of potential witnesses and documentary evidence such as emails, text messages or other similar electronic communications.  The information may also include, in some cases, medical, psychological, or other treatment records provided that the party provides the investigator with written consent to consider and include the treatment records in the investigation.  If the party provides the investigator with written consent, the treatment documents will become part of the evidentiary file, which both parties have the right to review.

The University will take reasonable steps to gather initial facts and evidence by providing both parties with an opportunity to meet with the investigator.  The investigator may request additional interviews with a party or parties based on information gathered during the investigation.  During every interview, the Complainant and Respondent will have opportunities to provide the investigator with their recollection of the alleged incident(s), the names of witnesses and copies of documents to the investigator.  Providing information to the investigator, whether submitted verbally or by the submission of documents or both, is voluntary for all parties.  The University cannot compel a party or witness to answer any questions during the interview or submit documents or otherwise make any statements.  However, the parties are encouraged to provide relevant information to the investigator.  A party or witness’s decision not to participate in the investigatory process, in whole or in part, will be documented in the investigative report.

The University will seek to complete the investigation and any additional necessary processes within a prompt and reasonable amount of time, typically not to exceed 120 days. This timeline is not binding and creates no rights for the parties. The University can extend deadlines at its discretion.  If temporary delays occur, the Complainant and Respondent will be notified in writing regarding the reason(s) for the delay.  The parties will be notified, in writing, when the investigation resumes.

The‌ ‌University‌ ‌may,‌ ‌in‌ ‌its‌ ‌discretion,‌ ‌consolidate‌ ‌complaints ‌where‌ ‌the‌ ‌allegations‌ ‌arise‌ ‌out‌ ‌of‌ ‌the‌ ‌same‌ ‌facts.‌  The‌ ‌Associate Vice-President for Affirmative Action or designee will‌ ‌designate‌ ‌an‌ ‌individual‌ ‌‌to‌ ‌conduct‌ ‌a formal investigation,‌ ‌when‌ ‌the facts and circumstances presented warrant such a measure, either based on a request from a Complainant or based on the initial assessment of the known facts.

Both parties have the right to have their Advisor present during any grievance proceeding or any related meeting.  An Advisor should not be selected with the actual or effective purpose of disrupting or attempting to disrupt the grievance process, or of causing emotional distress to any party.   The advisee may consult with their Advisor quietly or in writing during any meetings, but the Advisor may not speak on behalf of the advisee or directly participate otherwise in the proceedings. Delays in the conduct process will not normally be allowed due to scheduling conflicts with Advisors.

 A. Investigation Process

 i. Notice of Investigation

 Both parties will simultaneously receive written notification that the University has initiated a formal investigation.  The “notice of investigation” will include:

  • A reasonably detailed description of the alleged behavior including the names of relevant parties, description of the alleged offending behavior(s) and the date, time, and locations of the incident(s), if known. It will also include 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 regarding the standard of evidence to be used in considering the facts and evidence. “Preponderance of the evidence” is the standard applied in formal investigations of Prohibited Conduct.  Assessing facts and evidence using this standard means that the investigator will carefully, thoroughly, and objectively consider all of the evidence, then determine which facts and evidence are more credible. A “preponderance” standard means that it is more likely than not, based upon the totality of all relevant evidence and reasonable inferences from the evidence that the Respondent engaged in the Prohibited Conduct.
  • A statement apprizing the party of their opportunity to present relevant facts and witnesses. In all formal investigations, both parties will have an equal opportunity to present information to the investigator, including the names of witnesses and other relevant information.
  • A description of the University’s investigative procedures and a list of the parties’ rights, including the right to inspect and review all evidence obtained by the investigator(s), whether the investigator relied on the evidence or not, and the right for each of the parties to have an Advisor of their choice present.
  • The range of possible sanctions and remedies.
  • The bases for appeal and procedures associated with the appeal process, if applicable.
  • Information regarding non-disciplinary and non-punitive supportive measures available to both Complainants and Respondents.
  • A statement regarding the University Policy prohibiting retaliation (See Penn State Policy AD67).
  • A statement regarding the University’s requirement for all parties that they will not make false statements or knowingly submit false information as prohibited by University rules and regulations.

ii. Amended Notice

If, during the course of the investigation, the University acquires information previously unknown or unavailable to the investigator at the time of the original notice (e.g. names of previously unknown relevant parties, dates of incident(s); the times or locations of incident(s), or additional allegations of misconduct involving the Respondent), the University will revise the notice of investigation to include this information and simultaneously provide the parties with an amended copy of the notice.

If the University acquires information that suggests that additional misconduct may have occurred, in addition to the alleged misconduct raised in the initial complaint, the University may investigate the additional allegations concurrently with the initial allegation. All parties will be provided with a reasonable amount of time to respond to the new allegations, including the right to present relevant information to the investigator.

 iii. Preliminary Draft of Investigative Report

 At‌ ‌the‌ ‌conclusion‌ ‌of‌ ‌the‌ ‌initial‌ ‌investigation, ‌the‌ ‌investigator will draft a preliminary Investigative Report that‌ includes all ‌‌evidence gathered and will send the preliminary Investigative Report to each party in an electronic format other than email, such as a secure file-sharing platform of the University’s choosing, with‌ ‌at‌ ‌least‌ ten (‌10) ‌days‌ ‌for‌ ‌the‌ ‌parties‌ ‌to‌ submit a written response.‌  The parties and their Advisors will not be permitted to download, copy, photograph or take other measures designed to retain copies of the evidence.

The investigator will consider the parties’ responses prior to drafting a final Investigative Report.  At the conclusion of the review period, the University will remove the parties’ electronic access to the preliminary Investigative Report.  If the University is unable to provide the parties access to the materials due to extraordinary and unforeseen circumstances, the investigator will provide the parties with a hard copy of the evidence in person or, if the distance between the parties and the investigator prohibits such delivery, a copy will be sent to the parties using registered mail requiring the recipient’s signature. Parties who receive a hard copy of the draft Investigative Report by registered mail will be required to return the copy to the investigator at the conclusion of the review period by using registered mail requiring a signature by the recipient.

iv. Final Investigative Report

 The investigator, after reviewing and considering the parties’ responses to the draft Investigative Report, will complete the final Investigative Report that fairly summarizes the relevant evidence and will send the report to the Associate Vice-President for Affirmative Action.

The investigator will send to each party the final Investigative Report (including the Associate Vice-President’s determination) for their inspection and review using a secure file-sharing platform of the University’s choosing.  The parties and their Advisors will not be permitted to download, copy, photograph or take other measures designed to retain copies of the final Investigative Report. If the University is unable to provide the parties access to the materials due to extraordinary and unforeseen circumstances, a hard copy of the evidence will be provided to the parties in person or, if the distance between the parties and the investigator prohibits such delivery, a copy will be sent to the parties using registered mail requiring the recipient’s signature.  The same restrictions regarding copying, photographing or otherwise making attempts to retain a copy of the draft Investigative Report apply under these circumstances.  Parties who receive a hard copy of the final Investigative Report by registered mail will be required to return the copy to the investigator at the conclusion of the review period by using registered mail requiring a signature by the recipient.

Within ten (10) days of receipt of the final Investigative Report, the Associate Vice-President for Affirmative Action will make a determination that: (1) the University will convene a hearing before an impartial fact-finding Hearing Officer who will hear testimony from the parties and relevant witnesses, review the relevant evidence, and make a determination as to responsibility OR (2) the matter will be closed without a finding because the investigation revealed facts that demonstrate that the alleged behavior, even if true, is not Prohibited Conduct as defined by University Policy.  Prior to making this determination, the Associate Vice-President may contact and ask questions to the investigator, the parties or any other relevant individuals associated with the matter to help inform their decision.

X. FORMAL HEARING PROCESS

A. Receipt of Investigative Report. Within five (5) days of receipt of the Final Investigative Report, the Associate Vice-President for Affirmative Action or their designee will select a Hearing Officer and will provide a copy of the Investigative Report to the Hearing Officer for their review. Promptly after selection of the Hearing Officer members, the Associate Vice-President for Affirmative Action or their designee will provide concurrent written notice to the parties of the date, time, and location of the hearing.

B. Responsibilities of Hearing Officer & Parties. The Hearing Officer is required to objectively evaluate all relevant evidence both inculpatory and exculpatory, and to independently reach a determination regarding responsibility.

 C. Responsibilities of the Hearing Officer:

i. To ensure that only relevant cross-examination questions must be answered by a party or witness before the party or witness answers. The Hearing Officer may exclude questions that are irrelevant or duplicative.

ii. To ensure that the hearing process is administered in a fair and impartial manner and that all participants observe basic standards of decorum and that all questions are asked and answered in a respectful, non-argumentative and non-abusive way. The Hearing Officer will be responsible for ensuring that all parties and witnesses are protected from answering questions designed to be harassing, intimidating or abusive.

iii. To render a decision using a preponderance of the evidence standard using the facts as presented through careful examination of the investigative report, witness testimony, including cross-examination and the review of all relevant evidence.

Responsibilities of the parties (Complainant and Respondent):

i. Truthfully answer questions posed by the Hearing Officer.

ii. Truthfully answer relevant questions posed by the other party via their Advisor.

iii. Attend the hearing in its entirety, being present for all witness testimony.

iv. Adhere to basic standards of decorum by answering questions posed by the Hearing Officer or a party’s Advisor in a respectful, non-argumentative and non-abusive way.

D. General Rules

  1. Technical rules of process and evidence, such as those applied in criminal or civil court, are not used in these proceedings.
  2. Evidence permitted at the live hearing is limited to only that relevant to the allegations in the Formal Complaint. Evidence not previously provided in advance of the hearing may be accepted for consideration at the discretion of the Hearing Officer.
  3. Parties have the right to cross-examine any witness, including the investigator. Only the party can conduct cross-examination; the party’s Advisor may be present, at the discretion of the party, but may not directly question the other party or witnesses.
  4. Cross-examination is designed to allow a party to challenge the consistency, accuracy, memory and credibility of the opposing party or witness. Cross-examination must be relevant, respectful, and conducted in a non-abusive way. The University retains discretion rules of decorum at a live hearing that require participants (including parties, witnesses, and Advisors) to refrain from engaging in abusive, aggressive, or disruptive behavior. Failure to adhere to the rules outlined by the Hearing Officer may result in a decision to cease the hearing and reconvene once the disruptive behavior has been addressed.
  5. Parties will ask each question one at a time and allow the Hearing Officer to determine the relevance of the question before the other party or witness is asked to answer. This process will be strictly adhered to throughout the entire hearing process.
  6. At the request of one or both parties, the Complainant and Respondent will be permitted to participate in the hearing in separate rooms, assisted by technology that allows each party to see, hear and ask questions of the other party live and in real-time. Witnesses may also appear in separate rooms, but also must be clearly visible and audibly clear to the Hearing Officer and the parties.
  7. All witnesses will be considered the University’s witnesses. Names of witnesses may be provided by either party or others who may have been involved with the case.  To assist this process, those who have not met with the investigator will be requested to provide a brief statement to the Affirmative Action Office outlining the relevant information they will share at least three (3) days in advance of the hearing.
  8. There shall be a single audio record of all Affirmative Action Office hearings. The parties are not permitted to record the hearing.  The recording shall be the property of the University and will be maintained with all records of any actions, including any supportive measures, taken in response to a report or Formal Complaint of Prohibited Conduct for no less than seven (7) years.  Accordingly, documents prepared in anticipation of the hearings (including the Complaint, the Investigative Report, the notices of hearing, and any prehearing submissions) and documents, testimony, or other information introduced at the hearings may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law. In particular, to respect the reasonable privacy of all participants, no party (or representative), nor any witness, may record the hearing or disclose any recording of the hearing or any portion thereof.  Any violation of confidentiality requirements shall constitute a violation of    this Policy, which may result in disciplinary action.
  9. If a party or witness, with notice, does not appear before the Hearing Officer, the hearing will take place in their absence. The Hearing Officer may not draw any inference as to the responsibility of the Respondent based on any party or witness’s absence or refusal to undergo cross-examination.
  10. If the matter involves more than one Respondent, the Associate Vice-President for Affirmative Action, in their discretion, may permit the hearing concerning each Respondent to be conducted either jointly or separately.E. Conclusion of the Hearing.
    Following the conclusion of the hearing, the Hearing Officer will determine whether the evidence (including the information provided in and by the Investigative Report, the parties’ written statements, if any, the evidence presented at the hearing, and the testimony of the parties and witnesses) establishes that it is more likely than not that the Respondent committed a violation of University Policy. The Hearing Officer will typically submit their finding of responsibility or non-responsibility and rationale in writing to the Associate Vice-President for Affirmative Action within five (5) days of the hearing.  Decisions made by the Hearing Officer are final pending the normal review and appeal process.

 

XI. SANCTIONS

 Within five (5) days of receipt of the Hearing Officer’s finding, the Associate Vice-President for Affirmative Action or their designee will review the finding and provide a copy of the finding to the appropriate sanctioning authority, if applicable. The sanctioning body will assign sanctions within five (5) days of receipt of the finding.

A. Findings of Responsibility. If the Respondent is found to be responsible for the Prohibited Conduct as an outcome of the hearing, the Associate Vice-President for Affirmative Action or their designee will provide a copy of the Hearing Officer’s finding to the Respondent’s immediate Supervisor and other appropriate University officials.  The Supervisor, in consultation with the relevant University officials will determine the appropriate remedy and/or sanction to be imposed.  If disciplinary action is imposed, the Supervisor will notify the Affirmative Action Office, Human Resources, and other University officials, as appropriate, when such action has been completed (i.e., training, probation, suspension).  Sanction(s) may include written warning, loss of privileges, mandatory training or education, No Contact order, loss of salary increase, administrative leave, revocation of tenure, and/or termination of employment depending on the circumstances and severity of the violation.

When the Respondent is an employee subject to the terms of a collective bargaining agreement, the matter shall be referred to Labor and Employee Relations to ensure that any discipline and/or sanctions are imposed in accordance with the collective bargaining agreement applicable to the Respondent.

When the Respondent is a tenured or tenure-eligible faculty member, and the sanction imposed is dismissal of the Respondent’s employment and/or revocation of tenure, the matter shall be referred to the appropriate academic administrator to initiate dismissal pursuant to Penn State Policy AC70.

XII. WRITTEN NOTICE OF OUTCOME AND SANCTIONS

 Within five (5) days of receipt of the notice of sanctions issued by the sanctioning body, the Associate Vice-President for Affirmative Action or their designee will review the decision of the Hearing Officer and the sanctions, if applicable, and will send written notice of both simultaneously to the parties.  The written notification will include:

  1. If the Respondent is found responsible, the specific behaviors deemed to be Prohibited Conduct.
  2. 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.
  3. Findings of fact supporting the determination.
  4. Conclusions regarding the application of the employee handbooks and other applicable University policies (for employee-related matters).
  5. Statement of, and rationale for, the result of each allegation, including a determination regarding responsibility, and whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided by the University to Complainant.
  6. Sanctions, if applicable.
  7. Procedures and bases for the Complainant and Respondent to appeal.
     

XIII. APPEAL RIGHTS OF PARTIES

The University offers to both parties appeal rights from a determination regarding responsibility. Appeals must be grounded in one or more of the following rationales:

  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time the determination regarding responsibility was made has come to light that could affect the outcome of the matter;
  3. The investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual parties in particular, and that bias affected the outcome of the matter; and/or,
  4. The sanction(s) imposed was (were) outside the University’s sanction range for such violations and/or not justified by the nature of the violation.

Appeals must be submitted in writing to the Associate Vice-President or their designee within five (5) business days of the date of the Notice of Outcome.  The Associate Vice-President or their designee shall immediately provide notice of the appeal to the non-appealing party, who has five (5) days to submit a written response to the appeal which addresses solely the ground(s) alleged for the appeal. The non-appealing party shall be limited to one and only one written response to the appeal. Upon receipt of the non-appealing party’s response to the appeal, the Associate Vice-President or their designee will submit the appeal and the non-appealing party’s response to the appeal officer, who shall not be the same individual who issued the Finding of Responsibility, or Sanction.

The appeal officer for staff is the Vice President for Human Resources or their designee.

The appeal officer for faculty and postdoctoral scholars/fellows is the Vice Provost for Faculty Affairs or their designee.

The appeal officer’s review will be based only on the written record and will not include meetings or discussions with the parties or Affirmative Action Office personnel directly involved in the investigation.  Therefore, the appealing party should include any supporting documents with their written appeal.  The appeal officer may consult with the Associate Vice President regarding matters of procedure, as appropriate.

Within five (5) days of receipt of the appeal packet, the appeal officer will issue a final written decision simultaneously to both parties and the Associate Vice-President describing the result of the appeal and the rationale for the result. The decision of the appeal officer is final.

If the appeal officer upholds an appeal related to the dismissal of a Formal Complaint, the appeal officer will return the Formal Complaint to the Associate Vice-President, and the complaint process shall proceed consistent with the procedures outlined above.  If the appeal officer upholds an appeal related to a finding of the Hearing Officer, the appeal officer will issue a decision that will correct any identified procedural irregularities, conflicts of interest or bias, and/or ensure that any newly discovered evidence will be included in their decision.  The appeal officer may revise the sanctions previously imposed in accordance with their rationale for the result.

If the appeal is denied, the matter is closed.

XIV. RECORD-KEEPING PROVISION

 The University will retain a full record of all complaints filed under these provisions for a period of no less than seven (7) years from the date of the Formal Complaint.  This includes records of any actions, including any supportive measures, taken in response to a report or Formal Complaint of Prohibited Conduct.  The parties may request to inspect and review the records for a closed matter at any time during the retention period.  The University will provide the parties with access to the records within a reasonable timeframe, not to exceed forty-five (45) days from the date of the request.