Complaints with EOS : The Complaint Process

 


Discrimination & Harassment Complaint Procedures

 

STEP ONE. Self Help

An individual who believes that s/he is the subject of unlawful discrimination or harassment may choose to deal with the alleged offender directly through a face-to-face discussion, a personal telephone conversation, e-mail correspondence or letters. In some cases, this approach may resolve the situation; in others, it may be ineffective or place the individual in an uncomfortable, insecure or compromised position. Under no circumstances should an individual feel pressured to address the alleged offender directly or handle the matter alone, and a decision not to confront a person she or he believes to be discriminatory or harassing will not be viewed negatively. Other forms of self-help include taking the issue up the supervisory chain, to Human Resources or to the University's Ombudsperson. If self-help measures prove unsuccessful, the individual may choose to pursue others methods of resolution.

 

STEP TWO. Contacting EOS

To request any action under this Policy, an individual should contact EOS in a timely manner and as close to the date of the incident(s) as possible. Early reporting and intervention have proven to be the most effective methods of resolving actual or perceived incidents of unlawful discrimination and harassment and the University strongly urges the prompt reporting of complaints or concerns so that rapid and constructive action can be taken. To the extent that a concern is raised in an untimely manner, it is within EOS' discretion not to pursue the matter. At the same time, having brought a matter to EOS, an individual may ask EOS to take no further action. Depending on the facts and nature of the case, EOS may or may not be able to honor the individual's request. The University reserves at all times the right to proceed with an investigation on its own.

EOS has the authority and responsibility to gather information from all sources judged necessary for a fair resolution of a complaint. Given the scope of this authority and responsibility, confidentiality cannot be guaranteed in procedures brought under this Policy. All parties and witnesses involved in EOS procedures are urged to respect the integrity of the procedures and maintain confidentiality.

Individuals may discuss with EOS issues relating to unlawful discrimination and harassment, with or without filing a formal complaint. An individual should be aware that by contacting EOS, s/he is placing the University on notice of a potential policy violation and that, depending on the facts and circumstances of the case, EOS may not be able to keep the information confidential and may be obligated to act.

EOS may then conduct a preliminary fact-finding review. At its conclusion, EOS will inform the complainant of the available options. These options may include no further action, a mediated solution to the issues raised or a full investigation. Regardless of the recourse chosen, EOS is not authorized to address matters outside of the scope of specific allegations of unlawful discrimination and harassment, except that EOS will investigate claims of retaliation, failure to act and failure to report arising out of those allegations.

Mediation is not an option for resolution in cases involving allegations of sexual misconduct. In other cases of alleged unlawful discrimination or harassment, EOS will determine whether mediation is an appropriate mechanism of potential resolution based on the nature of the allegations. Mediation is an informal and confidential process where parties can participate in a search for fair and workable solutions. Mediation requires the consent of both parties and suspends the complaint procedures for up to 30 calendar days, a period which can be extended at the discretion of EOS upon consent of both parties. The parties may agree upon a variety of resolutions such as modification of work assignment, training for a department or an apology. If mediation results in a resolution, the complaint procedure will be concluded and the case will be closed. If the parties are unable to reach a resolution, the complaint procedure may move to Step Three.

 

STEP THREE. Formalizing the Complaint

If an individual wishes to pursue a full investigation, s/he will be asked to complete a Formal Complaint Questionnaire. The University does not limit the timeframe for filing a discrimination or harassment complaint, although it is within EOS' discretion not to pursue a matter filed more than one year after the alleged incident. It should be noted that once a complaint is filed, if a complainant decides to withdraw the complaint, the University's investigation may still proceed. UH has a responsibility to investigate reported allegations of unlawful discrimination and harassment in an adequate, prompt, reliable and impartial manner where investigation is feasible.

When an incident of discrimination or harassment is reported, the University will consider providing interim accommodations to protect the complainant as necessary while the incident is adjudicated through this Policy. EOS and other appropriate University administrators will work together to identify alternative arrangements that will preserve the rights of both the complainant and the respondent, as well as provide a safe overall educational or working environment until (and perhaps after) the complaint is investigated and adjudicated. Failure to adhere to the parameters of any interim measure may be considered a separate violation of this Policy and may result in disciplinary action.

 

STEP FOUR. EOS Investigation

EOS will begin a formal investigation upon its receipt of a formal complaint. EOS will attempt to interview the complainant, the respondent and any witnesses. EOS will also gather and review any pertinent documents as well as electronic information submitted by the complainant, the respondent and/or any witness.

 

STEP FIVE. Response to the Complaint

Within five business days after receiving a formal complaint, EOS will contact the respondent to obtain the respondent's response. The respondent will be specifically warned not to retaliate against or harass the complainant in any way. The response is due to EOS within 10 business days from the respondent's receipt of the complaint. The response should address and respond to the specific allegations made in the complaint and can include any other rebuttal information. Failure to respond may result in an EOS finding of violation and the imposition of appropriate sanctions on the respondent.

 

STEP SIX. EOS Determination

EOS will issue a finding as soon as practicable and make every effort to issue its finding within 60 calendar days. The finding will be determined by a preponderance of the evidence; that is, whether it is more likely than not that the respondent violated this Policy. Even if EOS determines that this Policy was not violated, EOS may recommend that the respondent undertake educational initiatives and/or trainings. If EOS does determine that this Policy was violated, EOS will recommend sanctions for the appropriate university administrator to implement.

 

STEP SEVEN. Appeal to Discrimination, Harassment and Misconduct Board

If the complainant or the respondent is dissatisfied with EOS' finding and/or recommended sanctions, the party can appeal to the Discrimination, Harassment and Misconduct Board ("Board"). An appeal must be filed with EOS within 10 business days of receiving EOS' finding. The appeal must specify the basis of the appeal (i.e., the finding, the recommended sanction or both). EOS will then forward its investigatory file to the Board. Absent extenuating circumstances, EOS will schedule a hearing to be held within 30 calendar days from the filing of the appeal. Written requests for rescheduling the hearing will be considered by the Board Chair in consultation with EOS. No later than five business days prior to the hearing, the parties must submit to EOS all the materials that the parties intend to use at the hearing, which EOS will forward to the Board and simultaneously provide to the other party. The materials must include the names of any witnesses they intend to call during the hearing (along with a brief summary concerning the subject matter of the witness' expected testimony), a copy of all documents in which the parties intend to reference and the name of any advisor to be in attendance at the hearing (and whether that advisor is an attorney).

 

STEP EIGHT. Designation of Hearing Panel

The hearing will be conducted by a Hearing Panel ("Panel"), which is charged with either upholding or rejecting EOS' determination and/or recommended sanction, and with providing the appropriate university administrator with its decision. The Panel will use "preponderance of the evidence" as the standard of proof to determine whether to uphold or reject EOS' finding and/or recommended sanction. The Board Chair is responsible for selecting the Panel members from available Board members. The Panel will be comprised of three Board members; one faculty member, one staff member and one student. The Board Chair will select the Panel Chair. The complainant and respondent shall be notified of the Panel's composition. Within five business days of such notification, the complainant and respondent shall have an opportunity to challenge in writing any Panel member for cause. The Board Chair, in consultation with EOS, will consider any challenge and replace the Panel member if appropriate.

 

STEP NINE. Hearing

  1. The general course of the hearing procedure will be as follows, subject to the discretion of the Panel Chair:
    • the Panel Chair will convene the hearing, introduce the individuals, give a brief description of the process and invite questions about the process
    • the complainant may make an initial statement
    • the Panel may question the complainant
    • the respondent may make an initial statement
    • the Panel may question the respondent
    • the Panel Chair will call for an investigative summary to be presented by EOS
    • the Panel may question the EOS representative
    • additional witnesses may be presented by the complainant and then the respondent to provide testimony and answer questions from the Panel
    • the complainant may make a closing statement
    • the respondent may make a closing statement.
  2. The Panel Chair may impose time limits on any stage of the procedure. The Panel Chair may also determine the relevance of, and place restrictions on, any witness or information presented.
  3. Only the Panel may ask questions of the parties and witnesses. Parties may question their own witness, but not the other party or the other party's witness. Both parties may request that the Panel Chair ask questions of the other party or the other party's witness by submitting proposed questions to the Panel Chair in writing. The Panel Chair may determine which questions are relevant and the Panel Chair has the discretion to revise a question or to decline asking the question.
  4. The past disciplinary history of a party will not be admissible unless such information is determined to be highly relevant by the Panel Chair. All such information sought to be admitted will be presumed irrelevant, and any request to overcome this presumption must be in writing an included in the materials provided EOS at least five business days before the hearing.
  5. Although previous conduct violations by the respondent are not generally admissible as information about the present alleged violation, the appropriate administrator may supply previous conduct violation information to the Panel if:
    1. the previous incident was substantially similar to the present allegation; and
    2. the information indicates a pattern of behavior and substantial conformity with that pattern by the respondent.
  6. An audio recording of the hearing will be kept for the use of the Panel and for purposes of appeal.
  7. In cases where a complainant and/or respondent refuse to participate in the hearing, the Panel will convene and make a finding based on the evidence and testimony available to the Panel.
  8. Because the hearing process is an internal UH process and not a formal courtroom process in which rules of evidence and courtroom procedures apply, this procedure is intended to reduce the adversarial nature of the hearing. The complainant and respondent may bring an advisor. Advisors may attend the hearing and sit near their respective advisee during the hearing; communicate quietly orally and/or in writing with their respective advisee during the hearing; and may respond to a direct question from the Panel. An advisor will not be permitted to make an oral presentation, including an opening or closing argument, or to question witnesses during the hearing.
  9. Alternative testimony options will be available, such as placing a privacy screen in the hearing room, or allowing an alleged victim to testify from another room via closed circuit. Although such options are intended to help make the alleged victim more comfortable, they are not intended to work to the disadvantage of the respondent.

 

STEP TEN. Panel Findings/Sanctions

After the hearing has concluded, the Panel will deliberate in private and determine by the preponderance of the evidence whether to uphold or reject EOS' finding and/or recommended sanctions. The Panel's decision will be by majority vote. The Panel may also make additional findings, including alternative sanctions.

A respondent found to have violated this Policy will be sanctioned. Consideration may be given to the nature of the violation, any mitigating circumstances, prior disciplinary violations, precedent cases, the University's safety concerns or any other information deemed relevant by the Panel. The available sanctions may include, but are not limited to; counseling, training, warning, reprimand, probation, suspension or termination.

 

STEP ELEVEN. Final Appeal to Vice Chancellor

The complainant and the respondent may appeal the Panel's decision and/or sanction to the appropriate Vice Chancellor in writing within 10 business days of the Panel's decision only under the following limited circumstances:

  1. the party has substantive new evidence that was not available at the time of the hearing and the new evidence could change the outcome of the decision;
  2. the party believes that a significant procedural error occurred that affected the outcome of the decision; or
  3. the party contends that the sanction is disproportionate to the Policy violation.

The Vice Chancellor will render a decision within 10 business days from the date that the appeal is filed. The Vice Chancellor uphold the Panel's decision and/or sanction if:

  1. the Panel's decision is consistent with the evidence;
  2. the hearing was conducted in a fair manner; and
  3. the sanction is commensurate with the Policy violation.

 

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EOS Sexual Misconduct Complaint Procedures

The University provides procedures through which victims of sexual misconduct may file a formal complaint with EOS and seek disciplinary sanctions.

 

STEP ONE. Filing a Complaint

If the victim wishes to pursue a sexual misconduct complaint with EOS, s/he will be asked to complete a Formal Complaint Questionnaire. The University does not limit the timeframe for filing a complaint of sexual misconduct. Complaints can be submitted at any time following an incident, although the University's ability to take any action may be limited because of the passage of time. Once a complaint is filed, if a complainant decides that s/he wants to withdraw the complaint, the University's investigation may still proceed.

 

STEP TWO. Consideration of Interim Accommodations

Although interim accommodations may have already been considered and made, EOS will consider interim accommodations at this step to protect the complainant while the incident is investigated and adjudicated through this Policy. EOS and other appropriate University administrators will work together to identify alternative arrangements that will preserve the rights of both the complainant and the accused, as well as provide a safe overall educational or working environment until (and perhaps after) the complaint is investigated and adjudicated. Failure to adhere to the parameters of any interim measure may be considered a separate violation of this Policy and may result in disciplinary sanctions.

 

STEP THREE. EOS Investigation

EOS will begin an investigation upon its receipt of the complaint. EOS will attempt to interview the complainant, the respondent and any witnesses. EOS will also gather and review any pertinent documents as well as any electronic information submitted by the complainant, the respondent and/or any witnesses.

 

STEP FOUR. Response to a Complaint

Within five business days after receiving a complaint, EOS will contact the respondent to obtain the respondent's response. The respondent will be specifically warned not to retaliate against or harass the complainant in any way. The response is due to EOS within 10 business days from the respondent's receipt of the complaint. The response should address and respond to the specific allegations made in the complaint and can include any other rebuttal information. Failure to respond may result in an EOS finding of violation and the imposition of appropriate sanctions on the respondent.

 

STEP FIVE. EOS Determination

EOS will issue a finding as soon as practicable, and make every effort to issue its finding within 60 calendar days. The finding will be determined by a preponderance of the evidence; that is, whether it is more likely than not that the respondent violated this Policy. Even if EOS determines that this Policy was not violated, EOS may recommend that the respondent undertake educational initiatives and/or trainings. If EOS does determine that this Policy was violated, EOS will recommend sanctions for the appropriate university administrator to implement.

 

STEP SIX. Appeal to Discrimination, Harassment and Misconduct Board

If the complainant or the respondent is dissatisfied with EOS' finding and/or recommended sanctions, the party can appeal to the Discrimination, Harassment and Misconduct Board ("Board"). An appeal must be filed with EOS within 10 business days of receiving EOS' finding. The appeal must specify the basis of the appeal (i.e., the finding, the recommended sanction or both). EOS will then forward its investigatory file to the Board. Absent extenuating circumstances, EOS will schedule a hearing to be held within 30 calendar days from the filing of the appeal. Written requests for rescheduling the hearing will be considered by the Board Chair in consultation with EOS. No later than five business days prior to the hearing, the parties must submit to EOS all the materials that the parties intend to use at the hearing, which EOS will forward to the Board and simultaneously provide to the other party. The materials must include the names of any witnesses they intend to call during the hearing (along with a brief summary concerning the subject matter of the witness' expected testimony), a copy of all documents in which the parties intend to reference and the name of any advisor to be in attendance at the hearing (and whether that advisor is an attorney).

 

STEP SEVEN. Designation of Hearing Panel

The hearing will be conducted by a Hearing Panel (“Panel”), which is charged with either upholding or rejecting EOS’ finding and/or recommended sanction, and with providing the appropriate university administrator with its decision.  The panel will use the “preponderance of the evidence” standard of proof to determine whether to uphold or reject EOS’ finding and/or recommended sanction.  The Board Chair is responsible for selecting the Panel members from the available Board members.  The Panel will be comprised of three Board members; one faculty member, one staff member and one student.  The Board Chair will select the Panel Chair.  The complainant and respondent shall be notified of the Panel’s composition.  Within five business days of such notification, the complainant and respondent shall have an opportunity to challenge in writing any Panel member for cause.  The Board Chair, in consultation with EOS, will consider any challenge and replace the Panel member if appropriate.

 

STEP EIGHT. Hearing

  1. The general course of the hearing procedure will be as follows, subject to the discretion of the Panel Chair:
    • the Panel Chair will convene the hearing, introduce the individuals, give a brief description of the process and invite questions about the process
    • the complainant may make an initial statement
    • the Panel may question the complainant the respondent may make an initial statement
    • the Panel may question the respondent
    • the Panel Chair will call for an investigative summary to be presented by EOS
    • the Panel may question the EOS representative
    • additional witnesses may be presented by the complainant and then the respondent to provide testimony and answer questions from the Panel
    • the complainant may make a closing statement
    • the respondent may make a closing statement.
  2. The Panel Chair may impose time limits on any stage of the procedure. The Panel Chair may also determine the relevance of, and place restrictions on, any witness or information presented.
  3. Only the Panel may ask questions of the parties and witnesses. Parties may question their own witness, but not the other party or the other party's witness. Both parties may request that the Panel Chair ask questions of the other party or the other party's witness by submitting proposed questions to the Panel Chair in writing. The Panel Chair may determine which questions are relevant and the Panel Chair has the discretion to revise a question or to decline asking the question.
  4. The past disciplinary history, sexual history or sexual character of a party will not be admissible unless such information is determined to be highly relevant by the Panel Chair. All such information sought to be admitted will be presumed irrelevant, and any request to overcome this presumption must be in writing and included in the materials provided EOS at least five business days before the hearing.
  5. Although previous conduct violations by the respondent are not generally admissible as information about the present alleged violation, the appropriate administrator may supply previous conduct violation information to the Panel if:
    1. the previous incident was substantially similar to the present allegation; and
    2. the information indicates a pattern of behavior and substantial conformity with that pattern by the respondent.
  6. An audio recording of the hearing will be kept for the use of the Panel and for purposes of appeal.
  7. In cases where a complainant and/or respondent refuse to participate in the hearing, the Panel will convene and make a finding based on the evidence and testimony presented to the Panel.
  8. Because the hearing process is an internal UH process and not a formal courtroom process in which rules of evidence and courtroom procedures apply, this procedure is intended to reduce the adversarial nature of the hearing. The complainant and respondent may bring an advisor. Advisors may attend the hearing and sit near their respective advisees during the hearing; communicate quietly orally and/or in writing with their respective advisee during the hearing; and may respond to a direct question from the Panel. An advisor will not be permitted to make an oral presentation, including an opening or closing statement, or to question witnesses during the hearing.
  9. Alternative testimony options will be available, such as placing a privacy screen in the hearing room, or allowing an alleged victim to testify from another room via closed circuit. Although such options are intended to help make the alleged victim more comfortable, they are not intended to work to the disadvantage of the respondent.

 

STEP NINE. Panel Decision/Sanctions  

After the hearing has concluded, the Panel will deliberate in private and determine by the preponderance of the evidence whether to uphold or reject EOS' finding and/or recommended sanctions. The Panel's decision will be by majority vote. The Panel may also make additional findings, including alternative sanctions.

A respondent found to have violated this Policy will be sanctioned. Consideration may be given to the nature of the violation, any mitigating circumstances, prior disciplinary violations, precedent cases, the University's safety concerns and any other information deemed relevant by the Panel. The available sanctions may include, but are not limited to; counseling, training, warning, reprimand, probation, suspension or termination.

 

STEP TEN. Final Appeal to Vice Chancellor

The complainant and the respondent may appeal the Panel’s decision and/or the sanction to the appropriate Vice Chancellor in writing within 10 business days of the Panel’s decision only under the following limited circumstances:

  1. the party has substantive new evidence that was not available at the time of the hearing and the new evidence could change the outcome of the decision;
  2. the party believes that a significant procedural error occurred that affected the outcome of the decision; or
  3. the party contends that the sanction is disproportionate to the Policy violation. 

The Vice Chancellor will render a decision within 10 business days from the date that the appeal is filed.  The Vice Chancellor uphold the Panel’s decision and/or sanction if:

  1. the Panel’s decision is consistent with the evidence;
  2. the hearing was conducted in a fair manner; and
  3. the sanction is commensurate with the Policy violation.

 

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