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Equal Opportunity Complaint Procedure (for cases after 9/21/2017)

Policy Statement

The University of Maine System is committed to maintaining a respectful, fair work and educational environment, free from discrimination and discriminatory harassment. The goal of the University is to prevent discrimination or harassment from occurring and to provide a means of raising and resolving complaints. The Equal Opportunity Complaint Procedure may be used by any employee or student of the University of Maine System who believes that Ze has been discriminated against or harassed by a University employee or the University based on race, color, religion, sex, sexual orientation, including transgender status or gender expression, national origin or citizenship status, age, disability, genetic information or veteran status. Sex discrimination complaints alleging discrimination based on marital status, pregnancy, or parental status may be raised through this procedure; additionally, sex discrimination or sexual harassment complaints alleging sexual assault, stalking, dating violence, and domestic violence may be raised through this procedure.

Applicability

These procedures provide a mechanism for employees and students (including current and former employees and students) to file complaints related to violations of Board of Trustee’s policies including Discrimination and Harassment and/or Consenting Relationship and/or Workplace Violence policies against an employee or the University and for investigation and resolution of such complaints. It shall also provide an avenue of redress for third parties complaining of discriminatory harassment or discrimination in connection with the University.

The University is responsible for providing an accessible environment free of discrimination and harassment whether or not an employee or student chooses to file a complaint using these procedures. The University will take steps to end and prevent recurrence of violations and to correct their discriminatory effects on the Complainant and others. Nothing in this document should be construed to limit the University’s ability to prevent a violation or to take corrective action when the University’s Equal Opportunity Policy or Policy on Sex Discrimination, Sexual Harassment, Sexual Assault, Relationship Violence, Stalking and Retaliation is violated.

Allegations about discrimination or harassment by a student will be handled by the Student Judicial Officer on campus who will apply the provisions in the Student Conduct Code for informal resolution or formal investigation. In such cases the Equal Opportunity Director or Equal Opportunity Administrator may serve as a consultant.

Allegations about discrimination or harassment by a Third Party, such as a campus guest, vendor, or contractor, should be made to the Equal Opportunity Director, Administrator or Officer on campus. Upon receipt of a report or complaint, the University will respond appropriately depending on the nature of its relationship to the Third Party.

More detailed information about complaints alleging sex discrimination, including sexual assault, sexual harassment, relationship violence (i.e., domestic violence and dating violence) or stalking is provided in the University policy which is linked here.

Definitions

  1. Advisor: A person who advises or supports any party involved in the complaint investigation and adjudication process. Examples of advisors include, but are not limited to, family members, friends, University staff or faculty, union representatives, and legal counsel.
  2. Board of Trustees policies: Such policies include Policies 401, 402, 414, and policies referenced therein.
  3. Complainant: Any person who submits a charge alleging that an employee or the University violated a policy or misconduct occurred. When a person alleges Ze has been harmed by an employee or the University’s misconduct, the person who alleges Ze has been harmed will also be considered to be a Complainant, even if another person submitted the charge itself. In cases of gender discrimination, sexual harassment, sexual assault, domestic violence, dating violence, or stalking, however, the word “Complainant” shall refer only to the person who allegedly has been harmed by the Respondent’s misconduct.
  4. Equal Opportunity Officer: The person who serves as the lead Equal Opportunity representative on one of the UMS campuses. This title can sometimes differ from campus-to-campus and may also be known as Human Resource Partner.
  5. Employee of the University: Employees, including both current and former faculty, staff, student employee, board of trustees, volunteers, and agents of the University, herein referred to as “employee.”
  6. Equal Opportunity Complaint Procedure: This entire document.
  7. Investigations Coordinator: Person(s) or designee(s) responsible for investigating complaints and making written conclusions and recommendations,
  8. Preponderance of the Evidence: The standard of evidence used to determine whether a violation of Board of Trustee’s Discrimination and Harassment and/or Consenting Relationship and/or Workplace Violence policies has been committed. Under the preponderance of the evidence standard, a violation will be determined to have occurred if, based upon the evidence presented, University authorities conclude that it is more likely than not that the violation was committed.
  9. Respondent: An Employee that has been charged with allegedly violating University policy or misconduct.
  10. Responsible Administrator: The Responsible Administrator is the administrator (for example, the dean, director, vice president, or president), who is responsible for acting on the findings and who may also be responsible for making a decision regarding discipline of the Respondent and/or other appropriate corrective action. In the event of an actual or perceived conflict of interest, the Equal Opportunity Officer shall designate an alternate. In the case of dating violence, domestic violence, stalking, or sexual assault involving the Responsible Administrator, the Equal Opportunity Officer must designate an alternate.
  11. Third Parties: Third Parties include University vendors, contractors and members of the public.
  12. Title IX Coordinator/Officer: A role outlined by the Department of Education, this is the individual on the campus who has oversight of Title IX responsibilities. Typically this individual is also the Equal Opportunity Officer for the campus. There may be Deputy Title IX Coordinator/Officer(s) on a campus as well, who have expertise in the area of Title IX and assist in responsibly handling key Title IX compliance
  13. Ze, hir: General neutral pronouns that do not imply male or female.

General Information

  1. Who may file a complaint? Any employee, student, or third party with a concern about discrimination or harassment by an employee or the University should contact the University Equal Opportunity Officer as soon as possible after the alleged incident. Complaints made later than one year after the alleged discrimination or harassment will not result in disciplinary action, absent extraordinary circumstances. Concerns about sex discrimination, including sexual assault, sexual harassment, stalking, dating violence, and domestic violence, may also be raised with the Title IX Coordinator (if Ze is different than the Equal Opportunity Officer) or a Deputy Title IX Coordinator.A complaint may be filed by an employee or student who feels Ze has experienced discrimination or discriminatory harassment by an employee or the University, or by anyone with knowledge of an incident. When a supervisor or administrator becomes aware of allegations of discrimination or harassment and the person who may have experienced discrimination or harassment is unwilling to file a complaint, the supervisor or administrator must report (as in section 3(b) Who must report allegations, below) and may request that an administrative investigation be conducted. When the Complainant is not the person who may have experienced discrimination or harassment, the University’s ability to investigate and resolve the situation may depend on that person’s willingness to participate in the investigation.Concerns about off-campus or off-duty conduct may be raised when there is a connection between the alleged conduct and the employment, education, job responsibilities, or campus safety of the parties involved or others.The Equal Opportunity Officer will provide information about University policy, start an interactive process, including possible accommodations that may be provided, relevant laws, suggest ways to handle the complaint either informally or formally, and provide referrals to counseling or other support services, as needed.
  2. Who must report allegations? All University employees, except for licensed counselors and health care professionals and designated researchers, are required to promptly report alleged incidents of sex discrimination and sexual misconduct, including sexual assault or sexual harassment, of which they become aware.
  3. Alternate contact. The University will provide a qualified alternate contact in the event that the Equal Opportunity Officer is the subject of a complaint or has a substantial conflict of interest in connection to the Complainant or the Respondent. The Director of the Equal Opportunity Center of Excellence shall be the alternate contact: (207) 581-1226 In the event that ze is the Equal Opportunity Officer, the Equal Opportunity Administrator shall be the alternate contact: (207)581-1226.
  4. Confidentiality. Informal resolution and investigations will be conducted as confidentially as possible to protect the privacy rights of both the Complainant and the Respondent. Consultation with and involvement of other employees, supervisors, Human Resources, and others will be strictly limited to those who may have information about the alleged incident, who need to know that a complaint has been made, or whose job responsibilities include equal opportunity matters. In order to protect the privacy of those involved in the complaint and the effectiveness of the investigation, all individuals involved are strongly encouraged not to discuss information about the complaint within the University except with the investigator, Equal Opportunity or Human Resources staff, advisors, or their union representative. The Complainant and Respondent may discuss the matter with family and others outside the University as necessary for support and guidance and may obtain assistance from University counseling professionals or the Employee Assistance Program.

Right to Representation

  1. General. The Complainant and Respondent have the right to an Advisor of their choice.
  2. Bargaining unit members. The University shall inform a bargaining unit member who is the Complainant or Respondent of the right to be accompanied by a union representative.
  3. Students and non-represented employees. A student or non-represented employee, as either Complainant or Respondent, shall have the right to be accompanied by an advisor of their choice. An advisor, including an attorney, may attend any meeting with the Complainant or Respondent.

Access to Materials; Time Limits; Retaliation

  1. Access. The University shall provide timely and equal access to the Complainant, Respondent and appropriate officials to any information that will be used during informal and formal disciplinary meetings.
  2. Time limits. University staff responsible for this process will respond to complaints as expeditiously as possible and will attempt to meet all deadlines, but failure to do so will not prevent the complaint process from continuing. Deadlines in this procedure are intended to serve as outside limits for actions to occur. All deadlines refer to calendar days.
  3. Retaliation. Retaliation against anyone who makes a complaint of discrimination or harassment or who is involved in a complaint process is illegal and constitutes a serious violation of University policy. Retaliatory action will be regarded as a basis for a new complaint under these procedures.

Informal Complaints

The University’s experience is that most complaints can be resolved through an informal process. By its nature an informal process is less procedurally detailed than a formal process. The informal process provides the maximum privacy and an opportunity for the earliest possible resolution for everyone concerned. Informal resolution is never appropriate in sexual assault cases.

If the Complainant wishes to explore an informal investigation or resolution of the matter the Equal Opportunity Officer will provide assistance without fully investigating the allegation. The objective of the informal process is to seek a resolution to which all parties involved can agree or to otherwise resolve the problem. The Equal Opportunity Officer may suggest that the Complainant speak directly to the Respondent or may act as an intermediary or set up a structured mediation. A Complainant may request that the Respondent not be informed of the Complainant’s identity if this is not essential to resolve the complaint informally. The Equal Opportunity Officer may also gather information from other sources in an effort to resolve the complaint.

A person who files a complaint may choose to withdraw the complaint. Alternatively, a Complainant may decide at any time to stop the informal process and file a formal complaint.

If a Respondent elects not to participate in an informal process, that choice will not be regarded as evidence of anything. However, a Respondent’s non-participation does not alter the University’s responsibility to investigate and to make decisions based on available information.

Attempts to resolve an informal complaint will normally be completed within sixty (60) days from the date of the complaint.

If a complaint cannot be resolved informally, the Complainant or the Equal Opportunity Officer may request a formal investigation.

Formal Complaints

  1. Filing a complaint. An Employee, student, or Third Party who wishes to file a formal complaint about an employee or the University should contact the Equal Opportunity Officer. Investigation of a formal complaint about an employee or the University will normally be conducted by the Investigations Coordinator in the System Office of Human Resources. If the Investigations Coordinator is the subject of the complaint or is not available, a qualified alternate investigator will be designated by the University of Maine System (UMS) Director of the Equal Opportunity Center of Excellence (EO COE).
    An employee or student who wishes to file a formal complaint about a student should contact the Student Judicial Officer on campus. See section 1, Applicability.
    The complaint should be filed as soon as possible after the alleged incident or unsuccessful efforts to resolve the situation informally. A formal complaint must be put in writing and signed by the Complainant. The complaint shall specify the incident(s) giving rise to the complaint. When possible, dates and location of incidents and potential witnesses shall be identified.
    A person who files a complaint may choose to amend or withdraw a complaint any time before the Investigator’s report is issued. The University will attempt to balance the wishes of a Complainant who does not want to file a formal complaint or who wishes to withdraw a complaint after it has been filed with the University’s responsibility to investigate serious allegations and take prompt corrective action.
    If you are a student, staff, or faculty of the University OR if you are an individual who wishes and to initiate a complaint or investigation, please click here
  2. Notifying the Respondent. The Respondent named in a formal complaint will be informed in writing within seven (7) days of the filing of the formal complaint of the nature of the complaint and the Complainant’s identity. The Respondent shall also be notified of any changes in the nature of the complaint.At any point in the complaint process, the University may place the Respondent on leave with pay. When necessary, the University may issue a timely warning notice to the campus community which will not include identifiable information about the Complainant or Respondent.
  3. Investigative process. The Investigations Coordinator or hir designee will communicate with the Complainant and Respondent. The Investigations Coordinator shall provide prior notice to a party of investigatory meetings between the Investigations Coordinator and the other party. The Investigations Coordinator may also interview witnesses, supervisors, or other persons who have information about the alleged incident, and may review personnel, public, or other records relevant to the complaint. Prior allegations made about the Respondent and findings about prior incidents of discrimination or harassment involving the Respondent shall not be considered in determining whether the present allegation is substantiated.
  4. Findings. The Investigations Coordinator will use a preponderance of the evidence standard in determining whether any University of Maine Board of Trustees policy has been violated or other misconduct has occurred. The Investigations Coordinator will submit findings in writing to the Responsible Administrator, the Complainant, the Respondent, the University Equal Opportunity Officer, and the University Human Resources Director normally within sixty (60) days of receiving the formal complaint. If an extension is necessary for good cause, a delay may occur. Written notice of the delay and the reason for the delay shall be provided to the Complainant and the Respondent.
  5. Responsible Administrator duties: The role of the Responsible Administrator is to determine whether to agree with the Investigator’s findings. The Responsible Administrator shall review the Investigator’s Report, may meet with Complainant and Respondent, and may consult with the Investigation Coordinator. For Title IX, domestic violence, dating violence and stalking violations, if the Responsible Administrator meets with one party, he or she must meet with the other. The Responsible Administrator must notify the parties in writing of hir decision within 14 days of receipt of the investigator’s report. The letter of decision shall include a description of the applicable appeal rights.

Administrative Investigation

  1. Filing a complaint. A supervisor or administrator who wishes to request an Administrative Investigation should contact the Equal Opportunity Officer. The investigation will normally be conducted by the Investigations Coordinator in the System Office of Human Resources. If the Investigations Coordinator is the subject of the complaint, has a conflict of interest or is not available, a qualified alternate investigator shall be designated.The Administrative Investigation should be requested as soon as possible after the alleged incident(s) or unsuccessful efforts to resolve the situation have occurred. An Administrative Investigation request must be put in writing and signed by the supervisor and/or administrator(s).
  2. Notification of the Respondent, Investigative Process, and Findings. The procedures outlined in the Notification of the Respondent, Investigative Process, and Findings sections concerning Formal Complainants shall also apply to Administrative Investigations.

Appeals of Formal Complaints and Administrative Investigations.

Either the Complainant or Respondent may file an appeal if:

(1) relevant procedural errors are alleged, and/or
(2) factual errors or omissions of relevant facts provided to the investigator; or
(3) new evidence has become available which was not available at the time of the investigation.

An appeal must be made in writing to the University System Equal Opportunity Director or hir designee within seven (7) days of being notified of the Responsible Administrator’s decision. If the Equal Opportunity Director did the intake of the complaint, then the University of Maine System Equal Opportunity Administrator shall review and decide the appeal.  The appeal may be filed electronically or via US Mail.  The appeal must state the reason(s) for the appeal. The University System Equal Opportunity Director will review the written record utilizing the preponderance of evidence standard and may request additional information from the Investigations Coordinator, Complainant, Respondent, Responsible Administrator, or others with direct knowledge about the complaint. The Equal Opportunity Director’s review and decision will be completed within fourteen (14) days and will be reported in writing to the Complainant, Respondent, Investigations Coordinator, Equal Opportunity Officer, Responsible Administrator, and University President. The final decision on an appealed complaint rests with the System Equal Opportunity Director; the Equal Opportunity process is complete following the review and decision by the Equal Opportunity Director.

Remedies

If the Responsible Administrator determines that there was a violation of Board of Trustee policy, the Responsible Administrator must refrain from imposing discipline or holding a pre-disciplinary hearing until the Equal Opportunity process is complete.

Upon completion of the Equal Opportunity process, if the Responsible Administrator concludes that there was a violation of Board of Trustee policy, he or she must hold a pre-disciplinary hearing, consulting with the Human Resource partner for hir department. In considering the appropriate corrective action, the Responsible Administrator may consider properly established records of previous conduct and the seriousness of the violation. A complaint made more than twelve (12) months after the incident shall not normally be the basis for disciplining a Respondent. However, where there are allegations of discrimination or harassment made within the twelve (12) month period and a longer pattern or practice of discrimination or harassment exists; or the substantiated misconduct is egregious, the Responsible Administrator shall consider the totality of events in determining appropriate discipline. Appropriate discipline may range from an oral reprimand up to and including termination, or any other appropriate remedial action.

Following any pre-disciplinary hearing on a complaint of sexual assault, domestic violence, dating violence, or stalking made under this procedure, both the Complainant and the Respondent will be simultaneously informed, in writing, of: (1) the outcome of any disciplinary proceeding that arises from the alleged violation including all sanctions and the rationale for the result and sanctions; (2) the procedure for the Respondent and Complainant to appeal the results of the disciplinary proceeding; (3) any change to the results that occurs prior to when they become final; and (4) when the results are final. Neither party will be required to abide by a non-disclosure agreement in writing or otherwise regarding the final results of the disciplinary proceeding.

A Respondent who is disciplined after a complaint has been substantiated may grieve the discipline by filing a grievance according to the procedures in the appropriate collective bargaining agreement or non-represented employees’ grievance procedure. In any case of sexual assault, domestic violence, dating violence, or stalking, the Complainant may also appeal the appropriateness of the disciplinary decision within seven (7) days to the administrator responsible for determining the discipline to be imposed.

Written Records

The kinds of written records relating to a charge of discrimination or harassment that may be placed in an employee’s official personnel file include: any document that has been mutually agreed to by the University and the employee; a letter issued by the Responsible Administrator to the employee at the conclusion of a formal investigation, which notifies the employee about discipline to be imposed or other remedies; or a settlement agreement between the parties. As applicable, inclusion of such information in the personnel file shall be in accordance with the relevant collective bargaining agreement.

Other written records of informal or formal complaint investigations will be retained in a secure file by the Equal Opportunity Officer and Investigations Coordinator.

Alternative Procedures

Employees and Third Parties are encouraged to use the Equal Opportunity Complaint Procedure to address any complaints of discrimination or harassment based on protected class status. As an alternative, an Employee or Third Party may also elect to file a grievance under the provisions of the applicable collective bargaining agreement or non-represented employees’ grievance procedure, if the alleged incident is also a violation of the agreement or handbook. This action may be in addition to, or in the place of, the procedures described above. A grievance alleging illegal discrimination or discriminatory harassment will be investigated by the Investigations Coordinator as described above (Section 10, Remedies) in accordance with the applicable grievance procedure.

An Employee or Third Party who wishes to use the Equal Opportunity Complaint Procedure but also to preserve hir right to file a grievance must ask for, and normally will be granted, an extension of the initial deadline for filing a grievance. Such a request shall be made in writing before the initial deadline for filing a grievance passes by the bargaining agent or the non-represented employee to the University administrator with authority to grant an extension.

A Complainant may also file criminal charges or a complaint or suit with an outside agency, including the Maine Human Rights Commission, U.S. Equal Employment Opportunity Commission, or U.S. Department of Education Office for Civil Rights even if ze files a complaint of discrimination or harassment under these procedures; in such an event, the University shall proceed with the complaint using this complaint procedure. If an Employee or Third Party elects to file a complaint with an outside agency instead of going through these procedures, the University shall initiate an administrative investigation upon receipt of the outside agency complaint.

Academic Freedom

Harassment based on sex, race, or other protected characteristics includes verbal conduct which unreasonably interferes with an individual’s work or academic performance or creates an intimidating, hostile, or offensive work or educational environment. However, harassment does not include verbal expression which is relevant to course subject matter, and University procedures for handling harassment complaints shall not abridge academic freedom.

Dissemination of Procedures

A summary of the Equal Opportunity Complaint Procedure is available to all employees, students, and Third Parties. Periodic notices sent to students, employees, and supervisors about the University’s Board of Trustee policies will include information about the complaint procedure and will refer individuals to the Title IX Coordinator, Equal Opportunity Officer, or the University website for additional copies.

Revised OHR 1/9/17