Procedure 406.03: Supplemental Title IX Employee Disciplinary Hearing Procedure

Order of Precedence

This supplemental employee discipline procedure applies to allegations of Sexual Harassment subject to Title IX jurisdiction pursuant to regulations promulgated by the United States Department of Education. See 34 C.F.R. § 106. Disciplinary proceedings against an employee respondent alleged to have engaged in sexual harassment in violation of Title IX shall be governed by Grays Harbor College’s administrative hearing practices and procedures, Chapter WAC 132B-108, and this supplemental hearing procedure. To the extent the supplemental hearing procedure conflicts with WAC 132B-108, and/or provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other Grays Harbor College employment policies and procedures, this supplemental hearing procedure will take precedence.

Notwithstanding the foregoing, if Respondent is a tenured or probationary faculty member and the Chief Executive of Human Resources determines that the allegations in the investigation, if true, would warrant Respondent’s dismissal from the College, the Chief Executive of Human Resources will refer the matter to the Tenure Dismissal Committee for a hearing pursuant to

RCW 28B.50.863 and applicable procedures set forth in the faculty union Collective Bargaining Agreement (CBA). To the extent the Tenure Dismissal Committee procedures are inconsistent or conflict with Sections II through VII of this Supplemental Procedure, those Supplemental Procedure sections will prevail. At the end of the hearing, the Tenure Dismissal Committee will issue a Recommendation consistent with the provisions set forth in Section VIII. Complainant shall have the same right to appear and participate in the proceedings as the Respondent, including the right to present their position on the Recommendation to the President before final action is taken.

Prohibited Conduct Under Title IX

Pursuant to Title IX of the Education Act Amendments of 1972, 20 U.S.C. §1681, Grays Harbor College may impose disciplinary sanctions against an employee who commits, attempts to commit, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of “sexual harassment.”

For purposes of this supplemental procedure, “Sexual Harassment” encompasses the following conduct:

1. Quid pro quo harassment. A Grays Harbor College employee conditioning the provision of an aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct.
2. Hostile environment. Unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Grays Harbor College’s educational programs or activities, or employment. C. Sexual assault. Sexual assault includes the following conduct:
   1. Nonconsensual sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.
   2. Nonconsensual sexual contact. Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
   3. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen (18).
   4. Statutory rape. Consensual sexual intercourse between someone who is eighteen (18) years of age or older and someone who is under the age of sixteen (16).
3. Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Washington, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of Washington, RCW 26.50.010.
4. Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors:
   1. The length of the relationship;
   2. The type of relationship; and
   3. The frequency of interaction between the persons involved in the relationship.
5. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.

Title IX Jurisdiction

1. This supplemental procedure applies only if the alleged misconduct:
   1. Occurred in the United States;
   2. Occurred during a Grays Harbor College educational program or activity; and
   3. Meets the definition of Sexual Harassment as that term is defined in this supplemental procedure.
2. For purposes of this supplemental procedure, an “educational program or activity” is defined as locations, events, or circumstances over which Grays Harbor College exercised substantial control over both the Respondent and the context in which the alleged Sexual Harassment occurred. This definition includes any building owned or controlled by a student organization that is officially recognized by Grays Harbor College.
3. Proceedings under this supplemental procedure must be dismissed if the Title IX Coordinator determines that one or all of the requirements of Section A (1)-(3) have not been met. Dismissal under this supplemental procedure does not prohibit Grays Harbor College from pursuing disciplinary action against a Respondent based on allegations that the Respondent engaged in other misconduct prohibited by federal or state law, employment contracts or handbooks, or other Grays Harbor College policies.
4. If the Chief Executive of Human Resources determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the Chief Executive of Human Resources will issue a notice of dismissal in whole or part to both parties explaining why some or all of the Title IX claims have been dismissed.

Initiation of Discipline

1. Upon receiving the Title IX investigation report from the Title IX Coordinator, the Chief Executive of Human Resources will independently review the report to determine whether there are sufficient grounds to pursue a disciplinary action against the Respondent for engaging in prohibited conduct under Title IX.
2. If the Chief Executive of Human Resources determines that there are sufficient grounds to proceed under these supplemental procedures, the Chief Executive of Human Resources will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the Chair of the Title IX Conduct Committee and by serving the notice on the Respondent and the Complainant, and their respective advisors. The notice must:
   1. Set forth the basis for Title IX jurisdiction;
   2. Identify the alleged Title IX violation(s);
   3. Set forth the facts underlying the allegation(s);
   4. Identify the range of possible sanctions that may be imposed if the Respondent is found responsible for the alleged violation(s);
   5. Explain that each Party is entitled to be accompanied by an Advisor of their own choosing during the hearing and that:
      1. Advisors will be responsible for questioning all witnesses on the Party’s behalf;
      2. An Advisor may be an attorney and/or, if the Party is a represented employee, a union representative;
      3. A represented employee who chooses an Advisor who is not a union representative must submit a signed waiver of union representation that includes consent from the union; and
      4. Grays Harbor College will appoint the Party an Advisor of the college’s choosing at no cost to the Party, if the Party fails to choose an Advisor; and
   6. Explain that if a Party fails to appear at the hearing, a decision of responsibility may be made in the Party’s absence.
3. Service of the disciplinary notice or any other document required to be served under this supplemental procedure may be done personally or by first class, registered, or certified mail, or by electronic mail to the Party’s Grays Harbor College email address.

Pre-Hearing Procedure

1. Upon receiving the disciplinary notice, the Chair of the Title IX Conduct Committee will send a hearing notice to all parties in compliance with WAC 10-08-040. Pursuant to WAC 132B- 120-340, the hearing date may not be scheduled less than ten (10) days after the Title IX Coordinator provided the Final Investigation Report to the Parties. The College may at its discretion, contract with an administrative law judge or other person to act as the chair of the Title IX Conduct Committee.
2. A Party is entitled to be accompanied by an Advisor of their choice during the disciplinary process at the party’s own expense. The Advisor may be an attorney and/or, if the Party is a represented employee, a union representative.
   1. If the Advisor is an attorney, the Advisor must file a notice of appearance with the Chair of the Title IX Conduct Committee with copies to all parties and the Chief Executive of Human Resources at least five (5) days before the hearing. If a notice of appearance is not filed within this timeframe, the Party will be deemed to have waived their right to have an attorney as an Advisor.
   2. If a Party is a represented employee who chooses not to use a union-provided Advisor, the Party must provide the Chair of the Title IX Conduct Committee with a signed waiver of union representation, including written consent from the union.
3. In preparation for the hearing, the Parties will have equal access to all evidence gathered by the investigator during the investigation, regardless of whether Grays Harbor College intends to offer the evidence at the hearing.

Rights of Parties

1. The provisions of this supplemental procedure shall apply equally to all parties.
2. Grays Harbor College bears the burden of offering and presenting sufficient testimony and evidence to establish that the Respondent is responsible for a Title IX violation by a preponderance of the evidence.
3. The Respondent will be presumed not responsible until such time as the disciplinary process has been finally resolved.
4. During the hearing, the Complainant and the Respondent shall be represented by an Advisor. These Parties are entitled to an Advisor of their own choosing and the Advisor may be an attorney or, if the Respondent holds a represented position, a union representative. If a party does not choose an Advisor, then the Title IX Coordinator will appoint an Advisor of Grays Harbor College’s choosing on the Party’s behalf at no expense to the Party.

Evidence

The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:

1. Relevance: The Committee Chair shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
2. Relevance means that information elicited by the question makes a fact is dispute more or less likely to be true.
3. Questions or evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
   1. Is asked or offered to prove someone other than the Respondent committed the alleged misconduct; or
   2. Concerns specific incidents of prior sexual behavior between the Complainant and the Respondent, which are asked or offered on the issue of consent.
4. No negative inference: The Chair of the Title IX Conduct Committee may not make an inference regarding responsibility solely on a witness’s or party’s absence from the hearing or refusal to answer questions.
5. Privileged evidence: The Chair of the Title IX Conduct Committee shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
   1. Spousal/domestic partner privilege;
   2. Attorney-Client and attorney work product privileges;
   3. Privileges applicable to members of the clergy and priests;
   4. Privileges applicable to medical providers, mental health therapists, and counsellors;
   5. Privileges applicable to sexual assault and domestic violence advocates; and
   6. Other legal privileges identified in RCW 5.60.060.

Initial Order

1. The Chair of the Title IX Conduct Committee will be responsible for drafting an Initial Order that:
   1. Identifies the allegations of sexual harassment;
   2. Describes the grievance and disciplinary procedures, starting with filing of the formal complaint through the determination of responsibility, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and hearings held;
   3. Makes findings of fact supporting the determination of responsibility;
   4. Reaches conclusions as to whether the facts establish whether the Respondent is responsible for engaging in Sexual Harassment in violation of Title IX;
   5. Contains a statement of, and rationale for, the Committee’s determination of responsibility for each allegation;
   6. Describes any disciplinary sanction or conditions imposed against the Respondent, if any;
   7. Describes to what extent, if any, Complainant is entitled to remedies designed to restore or preserve Complainant’s equal access to Grays Harbor College’s education programs or activities; and
   8. Describes the process for appealing the Initial Order to the Grays Harbor College President.
2. The Chair of the Title IX Conduct Committee will serve the Initial Order on the Parties simultaneously.

Appeals

1. All Parties, including the Chief Executive for Human Resources in their capacity as a representative of the college, have the right to appeal from the determination of responsibility and/or from a dismissal, in whole or part, of a formal complaint during the investigative or hearing process. Appeals must be in writing and filed with the President or designee within twenty-one (21) days of service of the initial order or notice of dismissal. Appeals must identify the specific findings of fact and/or conclusions of law in the initial order or dismissal being challenged and must contain argument as to why the appeal should be granted. Failure to file a timely appeal constitutes a waiver of the right to appeal and the initial order or dismissal shall be deemed final.
2. Upon receiving a timely appeal, the President or designee will serve a copy of the appeal on all non-appealing parties, who will have ten (10) days from the date of service to submit written responses to the President or designee addressing issues raised in the appeal. Failure to file a timely response constitutes a waiver of the right to participate in the appeal.  Upon receipt of written responses, the President or designee shall serve copies of the responses to the appealing party.
3. The appealing party shall have five (5) days from the date of service to submit a written reply addressing issues raised in the responses to the President or designee.
4. The President or Designee, based on their review of the parties’ submissions and the hearing or investigation record, will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanctions and conditions imposed in the Initial Order are affirmed, vacated, or amended, and, if amended, set forth the new disciplinary sanctions and conditions.
5. The President or designee shall serve the Final Decision on the parties simultaneously.
6. All decisions reached through this process are final and may be judicially appealed pursuant to applicable provisions of RCW 34.05, including, but not limited to, the timeliness set forth in RCW 34.05.542. No decisions or recommendations arising from this disciplinary procedure will be subject to grievance pursuant to any Collective Bargaining Agreement.