Policy for Investigation and Resolution of Formal Title IX Complaints Against University Employees Other Than Faculty and Academic Staff

This policy applies to the investigation and resolution of formal Title IX complaints filed against university employees other than faculty and academic staff employees. This includes employees who otherwise do not have the right to a formal disciplinary process.

The disciplinary process in Chapter UWS 4 applies to faculty employees and the process in Chapter UWS 11 applies to academic staff employees. The university may discipline an employee up to and including dismissal for cause for Title IX misconduct. The disciplinary process for employee sexual misconduct that is outside the scope of Title IX, and related definitions, are found in separate university policies.

This disciplinary procedure for Title IX misconduct will be used only when all of the following requirements are met:

1. There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.
2. The conduct occurred in the United States.
3. The conduct occurred within the university’s education programs or activities.
4. The complainant must be participating in or attempting to participate in the education program or activity of the university at the time of filing the formal Title IX complaint.
5. The complainant or Title IX coordinator have submitted a written formal Title IX complaint.

The employee is presumed to be not responsible for the alleged Title IX misconduct until a final decision regarding responsibility is made at the conclusion of the disciplinary process. The university may dismiss or discipline an employee for Title IX misconduct only after due notice and hearing. The burden of proof is on the university administration.

Definitions

As used in this policy, the following terms shall have the meaning given below:

1. “Complainant” means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.
2. “Consent” means words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in the definition of sexual assault. A person is unable to give consent if the person is in a state of incapacitation because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
3. “Consult” or “consulting” means thoroughly reviewing and discussing the relevant facts and discretionary issues.
4. “Dating violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
5. “Domestic violence” means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of Wisconsin as per ss. 813.12(1)(am) and 968.075, Stats.
6. “Education program or activity” means, for purposes of Title IX misconduct only, locations, events, or circumstances at which the university exercised substantial control over both the respondent and the context in which the relevant misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the university.
7. “Formal Title IX complaint” means, for the purposes of Title IX misconduct only, a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment, sexual assault, dating violence, domestic violence, or stalking against an employee and requesting that the institution investigate the allegations. At the time of filing of the formal Title IX complaint, the complainant must be participating in or attempting to participate in an educational program or activity. A formal complaint may be filed in person, by mail, by electronic mail, or any other method designated by the university. A formal Title IX complaint shall include a physical or digital signature of the complainant or the Title IX Coordinator.
8. “Incapacitation” means the state of being unable to physically or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of incapacitation requires an assessment of how the consumption of alcohol or drugs affects a person’s decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
9. “Preponderance of the evidence” means information that would persuade a reasonable person that a proposition is more probably true than not. It is a lower standard of proof than “clear and convincing evidence.”
10. “Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.
11. “Sexual assault” means an offense that meets any of the following definitions:
    1. “Rape” means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the complainant, without the consent of the complainant.
    2. “Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant’s age or because of the complainant’s temporary or permanent mental incapacity.
    3. “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as per s. 944.06, Stats.
    4. “Statutory Rape” means sexual intercourse with a complainant who is under the statutory age of consent as per s. 948.02, Stats.
12. “Sexual harassment” means conduct on the basis of sex that satisfies any of the following:
    1. Quid prop quo sexual harassment: When an employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct.
    2. Hostile environment sexual harassment: Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, the conduct is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution’s education program or activity.
13. “Stalking” means engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress.
14. “Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence as defined in this section and sexual harassment as defined in this section.

Disciplinary sanctions

The disciplinary sanctions that may be imposed for misconduct under this policy range from a written reprimand through dismissal.

Dismissal of formal Title IX complaint and related appeal

1. The university shall dismiss formal Title IX complaints consisting of allegations that meet any of the following conditions:
   1. The alleged conduct would not constitute Title IX misconduct if proved.
   2. The alleged conduct did not occur in a university education program or activity.
   3. The alleged conduct did not involve actions against someone physically located in the United States.
2. The university may dismiss formal Title IX complaints under any of the following conditions:
   1. The complainant formally requests in writing to withdraw the formal Title IX complaint.
   2. The employee is no longer employed by the university.
   3. Specific circumstances prevent the university from gathering evidence sufficient to reach a determination on the allegations contained in the formal Title IX complaint.
3. The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal complaint, but the university may extend that timeline as necessary. If a formal complaint is dismissed, the university shall provide notice of the dismissal and reasons therefore to the employee and complainant in writing.
4. Within 20 days of receipt of the notice of dismissal, the complainant or employee may appeal the dismissal by filing a written appeal with the chancellor’s designee (hereinafter “chancellor’s designee”). The complainant or employee may appeal on any of the following bases:
   1. Procedural irregularity that affected the outcome of the matter.
   2. New evidence that was not reasonably available at the time of the dismissal that could affect the outcome of the matter.
   3. The university employee making the dismissal decision had a conflict of interest or bias for the employee or against the complainant, or against complainants generally, that affected the dismissal decision.
5. The chancellor’s designee shall provide the employee and complainant the opportunity to provide a written statement supporting or challenging the dismissal. The chancellor’s designee shall simultaneously issue a decision to the complainant and the employee within 30 days of receipt of a written appeal. The chancellor’s designee’s decision on the appeal of a dismissal shall be final.
6. The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the employee under other administrative rules or university policies.

Investigation of Title IX misconduct allegations

1. Unless the university dismisses a formal complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal complaint.
2. The investigator shall provide the employee and the complainant with a notice of investigation. The notice shall include all of the following:
   1. The grievance process, including informal resolution options.
   2.  The allegations of Title IX misconduct with sufficient detail for the employee to prepare a response to the allegations, including the identity of the complainant as well as the date and location of the incident if available.
   3. A statement affirming the employee is presumed not responsible for the alleged violation until the disciplinary process finds otherwise.
   4. The employee and the complainant have the right to an advisor of their choice.
   5. The employee and the complainant have the right to inspect and review the evidence.
   6. Information about any code of conduct rules which prohibit the employee or the complainant from knowingly making false statements or submitting false information during the disciplinary process.
3. The parties shall receive an amended notice of investigation any time additional charges are added during the course of an investigation. Formal Title IX complaints involving more than one complainant or respondent may be consolidated if they arise out of the same facts or circumstances.
4. The university’s investigator shall do all of the following:
   1. Provide both the employee and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses who may be interviewed by the investigators and other inculpatory and exculpatory evidence.
   2. Not restrict the ability of either the employee or complainant to discuss the allegations under investigation or to gather and present relevant evidence.
   3. Provide the employee and complainant the same opportunity to be accompanied by an advisor of their choice during meetings relating to the investigation but may limit the participation by the advisor so long as those limits are applied equally.
   4. Provide both the employee and the complainant an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence whether obtained from an employee, complainant, or other source, so that the employee and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.
5. As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use an employee’s or complainant’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the employee or complainant, unless the university obtains the employee’s or complainant’s voluntary, written consent to do so in relation to the investigation and disciplinary process.
6. The university’s investigator generally shall complete the investigation and issue a final investigative report within 90 days of the investigator’s appointment. However, the investigator may extend the investigation’s time frame where circumstances warrant.

Review of evidence

1. Prior to completion of the final investigative report, the investigator shall send to the employee and complainant and their respective advisors, if any, the evidence gathered during the investigation for inspection and review by the employee and the complainant. The evidence may be provided in an electronic format or a hard copy. The evidence provided includes evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence, whether obtained from the employee, complainant, or other source, to permit the employee and complainant to meaningfully respond to the evidence prior to conclusion of the investigation.
2. The employee and the complainant shall have at least 10 days to submit a written response to the evidence. The investigator will consider any written responses prior to completion of the final investigative report.

Final investigative report

The investigator shall create a final investigative report that fairly summarizes relevant evidence and send the report to the employee, the complainant, and their advisors, if any, for their review and response at least 10 days prior to a hearing. The written report shall be delivered simultaneously to the employee and complainant at least 10 days prior to a hearing. The university shall, upon receipt of the final investigative report, proceed to schedule a live hearing on the matter. A hearing shall be conducted unless both the employee and the complainant both waive, in writing, the right to such a hearing.

Hearing examiner or hearing committee

1. The chancellor of each university shall designate a Title IX conduct hearing examiner or hearing committee to hear employee dismissal and discipline cases. The university shall have the right to decide whether the matter will be heard by a hearing examiner or a hearing committee.
2. The hearing committee or hearing examiner shall conduct the hearing, make a verbatim record of the hearing, and transmit such record along with factual findings and decision to the chancellor. The hearing shall be held not later than 45 days after completion of the final investigative report except that this time limit may be extended by the hearing committee or hearing examiner.

Adequate due process

1. A fair hearing for an employee against whom dismissal or other discipline is sought shall include all of the following:
   1. Service of written notice of a live hearing on the allegations in the formal complaint at least 10 days prior to the hearing.
   2. A right to the names of witnesses and of access to documentary and other evidence which serve as the basis for seeking dismissal or other discipline.
   3. A right for the complainant and employee to be heard on their own behalf.
   4. A right to an advisor, counsel, or other representatives, and to offer witnesses. The employee’s or complainant’s advisor or counsel may ask all witnesses relevant questions and follow-up questions, including those challenging credibility. Credibility determinations, however, may not be made based on a person’s status as a complainant, respondent, or witness. If the employee does not have an advisor, the university shall provide the employee, without charge, an advisor of the university’s choice to conduct cross-examination on behalf of the employee. The advisor may be an attorney.
   5. A right to confront and cross-examine adverse witnesses. The employee’s or complainant’s advisor shall conduct cross examination directly, orally, and in real time. The employee and the complainant may not personally conduct cross-examination. If the employee, the complainant, or a witness does not submit to cross-examination at the hearing, the hearing committee or the hearing examiner may not rely on any statement of the employee, complainant, or witness in reaching its findings and recommendations. However, the hearing committee or hearing examiner may not draw a negative inference in reaching its findings and recommendations based solely on the absence of an employee, complainant, or witness from the hearing or refusal to answer cross-examination or other questions.
   6. A verbatim record of all hearings, which might be a sound recording, made available at no cost for inspection and review.
   7. Written findings of fact supporting the decision based on the hearing record. The written findings of fact and decision shall include all of the following:
      1. Identification of the allegations potentially constituting Title IX misconduct.
      2. A description of the procedural steps taken from the receipt of the formal complaint through the hearing committee’s or hearing examiner’s decision, including any notifications to the employee and the complainant, interviews with the employee, the complainant, and witnesses, site visits, methods used to gather evidence, and hearings held.
      3. Conclusions regarding the application of the university’s conduct rules and policies to the facts including the following: a determination regarding responsibility for each allegation and the rationale behind each decision, any disciplinary sanction recommended to be imposed, any remedies recommended to restore or preserve equal access to the university’s educational program or activity, and the university’s procedures and permissible bases for complainant and employee to appeal.
   8. Admissibility of evidence governed by s. 227.45 (1) to (4), Stats. Only relevant questions may be asked of the employee, the complainant, and any witnesses. The hearing committee or hearing examiner shall determine whether a question is relevant and explain the decision to exclude a question as not relevant. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions or evidence are offered to prove that someone other than the employee committed the conduct alleged by the complainant, or unless the questions or evidence concern specific incidents of the complainant’s prior sexual behavior with the employee and are offered to prove consent.
   9. Upon the employee’s request, the university shall provide for the hearing to occur with the employee and complainant located in separate rooms with technology enabling the hearing committee or hearing examiner, the employee, and the complainant to simultaneously see and hear witnesses answering questions.
2. The complainant shall have all the rights provided to the employee in sub. (1)(a) to (i).

Procedural guarantees

1. Any hearing held shall comply with the requirements set forth in the preceding section. All of the following requirements shall also be observed:
   1. The burden of proof of the existence of just cause to support dismissal, or of grounds to support other discipline, is on the university administration.
   2. The standard of proof shall be a preponderance of the evidence.
   3. No employee who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to sit on the hearing committee in that case.
   4. No university employee or other person who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to serve as the hearing examiner in that case.
   5. The hearing shall be closed unless the employee requests an open hearing, in which case it shall be open.  Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.
   6. The hearing committee may, on motion of the complainant or the employee, disqualify any one of its members for caused by a majority vote. If one or more of the hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of employees equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the rules and procedures.
   7. The hearing committee or the hearing examiner may not be bound by common law or statutory rules of evidence and may admit evidence having reasonable probative value but shall exclude immaterial, irrelevant, or unduly repetitious testimony, and shall give effect to recognized legal privileges unless the person holding the privilege has waived it. The hearing committee or the hearing examiner shall follow the evidentiary rules outlined in this appendix.
   8. If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the hearing committee concerning its wishes in this regard. The function of legal counsel shall be to advise the hearing committee, consult with them on legal matters, and such other responsibilities as shall be determined by the hearing committee within the provisions of the rules and procedures.
   9. Nothing in this section shall prevent the settlement of cases by mutual agreement between the university administration, the complainant, and the employee.
   10. Delay or adjournment of the hearing for good cause may be granted. Good cause includes any of the following:
       1. The need to investigate evidence as to which a valid claim of surprise is made.
       2. To ensure the presence of the employee or the complainant, an advisor, or a witness.
       3. To provide language assistance or accommodation of disabilities.
       4. To accommodate concurrent law enforcement activity.

Hearing committee or hearing examiner findings and recommendations to the chancellor’s designee

The hearing committee or hearing examiner shall simultaneously send to the chancellor’s designee, to the complainant, and to the employee concerned, within 30 days after conclusion of the hearing, or otherwise as soon as practicable, a verbatim record of the testimony and a copy of its factual findings and recommendations.

Chancellor’s designee’s decision

1. Within 10 days after receipt of the record and findings and recommendations from the hearing examiner or hearing committee, the complainant and the employee may submit written exceptions. The chancellor’s designee shall review those materials and their decision shall be based on the record created before the hearing examiner or hearing committee without consideration of any new evidence submitted by the complainant or the employee. The chancellor’s designee shall prepare a written decision within 20 days after the deadline of submission for the written exceptions by the complainant or the employee. If the chancellor’s designee’s proposed decision differs substantially from those recommendations, the chancellor’s designee shall promptly consult the hearing examiner or hearing committee and provide the hearing examiner or hearing committee with a reasonable opportunity for a written response prior to making a decision.
2. The chancellor’s designee may adopt the hearing examiner’s or hearing committee’s findings and recommendations as the chancellor’s designee’s decision. The chancellor’s designee shall explain in the decision any substantial differences from those findings and recommendations.
3. The chancellor’s designee’s decision shall be simultaneously sent to the complainant, employee, and to the hearing examiner or hearing committee within 45 days of the chancellor’s designee’s receipt of the hearing examiner’s or hearing committee’s materials.

Appeal to chancellor

1. The employee or complainant may appeal the dismissal of a formal Title IX complaint or the chancellor designee’s decision by filing a written appeal with the chancellor within 20 days of receiving the decision.
2. The employee or complainant may appeal to the chancellor on the following bases:
   1. Procedural irregularity that affected the outcome of the matter.
   2. New evidence that was not reasonably available at the time of the live hearing that could affect the outcome of the matter.
   3. The Title IX coordinator, investigator(s), chancellor’s designee, or the hearing examiner or hearing committee members had a conflict of interest or bias for or against the employee or complainant, or against complainants and respondents generally, that affected the outcome.
3. The complainant and the employee shall be notified of any appeal to the chancellor.
4. The chancellor shall permit the complainant and employee to file a written statement on the appeal. The chancellor shall review the appeal based on the record before the hearing examiner or hearing committee. The complainant and employee shall be simultaneously provided the final written decision of the chancellor, which shall include the rationale for the decision.

Chancellor’s decision

1. After reviewing the matter on record and considering any arguments submitted by the parties, the chancellor shall issue a decision. The chancellor may adopt the hearing committee or hearing examiner’s findings and recommendations as the chancellor’s decision. The chancellor shall explain in the decision any substantial differences from those findings and recommendations. If the chancellor’s proposed decision differs substantially from those recommendations, the chancellor shall promptly consult the hearing committee or the hearing examiner and provide the committee or the hearing examiner with a reasonable opportunity for a written response prior to making a decision. In that decision, the chancellor may order dismissal of the employee, may impose a lesser disciplinary action, or may find in favor of the employee. The employee shall be notified of the chancellor’s decision in writing. The complainant shall be notified of the chancellor’s decision at the same time as the employee. This decision shall be deemed final unless the Board of Regents for the University of Wisconsin System (“board”), upon request of the employee or complainant, grants review based on the record.
2. The chancellor’s decision shall be based on the record created before the hearing committee or hearing examiner, and the chancellor shall include the chancellor’s rationale in the decision. The chancellor decision shall be simultaneously sent to the employee concerned, the complainant, and to the hearing committee or the hearing examiner within 45 days of the chancellor’s receipt of the hearing committee’s or hearing examiner’s materials. A decision by the chancellor ordering dismissal shall specify the effective date of the dismissal.

Appeal to the Board of Regents of dismissal of university staff respondent

1. In matters where a university staff member is the respondent, the university staff member or complainant may file an appeal of the chancellor’s decision to dismiss the staff member to the board. Any appeal must be made within 30 days of the date of the decision of the chancellor to dismiss. The board shall provide the university staff member and complainant an opportunity for filing written exceptions to the chancellor’s decision, and for oral arguments, unless the university staff member and the complainant waive in writing the right to file exceptions and for oral arguments. The hearing of any oral arguments shall be closed unless the university staff member or the complainant requests an open hearing.
2. The university staff member or complainant may file exceptions to the chancellor’s decision, and the board shall conduct its review of the chancellor’s decision, on any of the following bases:
   1. Procedural irregularity that affected the outcome of the matter.
   2. New evidence that was not reasonably available at the time of the live hearing that could affect the outcome of the matter.
   3. Conflict of interest or bias for or against the university staff member or complainant, or against complainants and respondents generally, by the Title IX coordinator, investigator, the chancellor, the hearing examiner, or the hearing committee members that affected the outcome.
3. If the board decides to take action different from the decision of the chancellor, then before taking final action the board shall consult with the chancellor.
4. The board shall make its decision based on the record created before the hearing committee or hearing examiner. Within 60 days of receipt of the chancellor’s decision, or otherwise as soon as practicable, the board shall simultaneously notify the university staff member and the complainant of the board’s final decision, which shall include the board’s rationale for its decision.
5. A decision by the board ordering dismissal of a university staff member shall specify the effective date of the dismissal.

Administrative leave

Pending the final decision on the allegations in the formal complaint, the employee/respondent may be placed on administrative leave.