Sex Discrimination of Agency Staff Investigation and Disciplinary Procedure

Policy Approve By

Scott McCallum, Superintendent

Policy Date (original policy date)

August 01, 2024

Policy Prepared By

Shelley Williams, Assistant Attorney General

Policy Category

Personnel

Purpose

The Washington State School for the Blind (“WSSB”, “School”, “Agency”) recognizes its responsibility to investigate, resolve, implement supportive and corrective measures, and monitor the educational environment and workplace to promptly and effectively stop, remediate, and prevent discrimination on the basis of sex, as required by Title IX of the Educational Amendments of 1972.

To this end, the Agency has enacted the Sex Discrimination of Agency Staff Prohibited Policy and adopted the following Sex Discrimination Investigation and Disciplinary Procedure for purposes of receiving, investigating, and imposing appropriate discipline regarding allegations of Sex Discrimination arising within the Agency’s educational programs and activities and workplace. Any Agency employee found responsible for engaging in Sex Discrimination in violation of Agency policy may be subject to disciplinary action up to and including termination of employment.

Application of this Procedure is restricted to allegations of Sex Discrimination that may violate the Policy. Nothing in this Procedure limits or otherwise restricts the Agency’s ability to investigate alleged misconduct and pursue discipline based on violations of other federal, state, and local laws, their implementing regulations, and other Agency policies prohibiting gender discrimination through processes set forth in the Agency’s Student Conduct Code, chapter 72-120 WAC, employment contracts, employee handbooks, and collective bargaining agreements.

Staff Responsibilities

In the event of an alleged sexual assault, the WSSB superintendent or designee, will immediately inform: (1) the Title IX Coordinator and Human Resources so that the Agency can appropriately respond to the incident consistent with its own grievance procedures; and (2) law enforcement. The superintendent, principal or designee, will notify the targeted person of their right to file a criminal complaint and a sexual harassment complaint simultaneously.

Order of Precedence

This employee discipline procedure applies to allegations of Sexual Discrimination and Sex-based Harassment subject to regulations promulgated under Title IX by the United States Department of Education. See 34 C.F.R. § 106. Disciplinary proceedings against an employee Respondent alleged to have engaged in Sex Discrimination or Sex-based Harassment shall be governed by this disciplinary procedure. To the extent this disciplinary procedure conflicts with provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other Agency policies and procedures, this disciplinary procedure will take precedence.

Prohibited Conduct

The Agency may impose disciplinary sanctions up to and including termination from the Agency against an employee who has been found responsible for committing, attempting to commit, aiding, abetting, inciting, encouraging or assisting another person to commit or engage in acts of Sex Discrimination, which include Sex-based Harassment.

For the purposes of this Procedure, the following conduct is prohibited:

Sex discrimination.
Sex-based Harassment.
Sexual Violence.
Stalking.
Retaliation.

Definitions

For the purposes of this Procedure, the following definitions apply:

“Complaint” means a written or oral request that can be objectively understood as a request for the Agency to investigate and make a determination about alleged Sex Discrimination.
“Complainant” means the following individuals who have been subjected to alleged conduct that would constitute Sex Discrimination:
1. A student or employee; or
2. A person other than a student or employee who was participating or attempting to participate in the Agency’s educational program or activity at the time of the alleged discrimination.
“Consent” means knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Each party has the responsibility to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when they know, or reasonably should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual sexual conduct.

Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.

“Disciplinary Sanction” means consequences imposed on a Respondent following a determination that the Respondent violated the Agency’s policy prohibiting Sex Discrimination.
“Impermissible Evidence” means privileged communications, unless the privilege has been effectively waived by the holder, and irrelevant evidence about a Complainant’s prior sexual behavior.
1. Privileged Communications include:
  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; or
  6. Other legal privileges identified in RCW 5.60.060.
2. Prior Sexual Behavior. 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.
“Investigation Procedure” is the process the Agency uses to initiate, informally resolve, and/or investigate allegations that an individual has violated Agency policies prohibiting Sex Discrimination or Sex-based Harassment, which may include processes in applicable collective bargaining agreements.
“Mandatory Reporters” are all Agency employees. Mandatory Reporters are required to report conduct that could reasonably constitute Sex Discrimination to the Title IX Coordinator.
“Pregnancy or Related Conditions” means:
1. Pregnancy, childbirth, termination of pregnancy, or lactation;
2. Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
3. Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.
“Program or Program and Activity” means all operations of the Agency.
“Relevant” means related to the allegations of sex discrimination under investigation. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged sex discrimination occurred.
“Remedies” means measures provided to a Complainant or other person whose equal access to the Agency’s educational Programs or Activities has been limited or denied by Sex Discrimination. These measures are intended to restore or preserve that person’s access to educational Programs and Activities after a determination that Sex Discrimination has occurred.
“Respondent” means an individual who has been alleged to have violated the Agency’s policy prohibiting Sex Discrimination.
“Retaliation” means intimidation, threats, coercion, or discrimination against any person by the Agency, a student, or an employee or other person authorized by the Agency to provide aid, benefit, or service under the Agency’s education program or activity, for the purpose of interfering with any right or privilege secured by Agency policies and procedures prohibiting Sex Discrimination, or because the person has reported information, made a Complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this investigation procedure, including in an informal resolution process, in these investigation procedures, and any disciplinary proceeding for Sex Discrimination. Nothing in this definition precludes the Agency from requiring an employee to provide aid, benefit, or service under the Agency’s education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing.
“Sex Discrimination” occurs when a Respondent causes a Complainant more than de minimis (insignificant) harm by treating the Complainant differently from other similarly-situated individual(s) based on:
1. Sex stereotypes;
2. Sex characteristics;
3. Pregnancy or related conditions;
4. Sexual orientation; or
5. Gender identity.

Preventing a person from participating in an education program or activity consistent with their gender identity constitutes more than de minimis harm and is prohibited.

“Sex-based Harassment.” For purposes of this Procedure, Sex-based Harassment is a type of Sex Discrimination that occurs when a Respondent engages in the following discriminatory conduct on the basis of sex:
1. Quid pro quo harassment. An employee, agent, or other person authorized by the Agency to provide an aid, benefit, or service under the Agency’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.
2. Hostile environment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:
  1. The degree to which the conduct affected the Complainant’s ability to access the recipient’s education program or activity;
  2. The type, frequency, and duration of the conduct;
  3. The parties’ ages, roles within the Agency’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;
  4. The location of the conduct and the context in which the conduct occurred; and
  5. Other sex-based harassment in the recipient’s education program or activity.
3. Sexual violence. Sexual violence 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 (Fondling). 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. Incest. 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 (Rape of a child). Non-forcible sexual intercourse with a person who is under the statutory age of consent.
  5. Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, coercive control, damage or destruction of personal property, stalking, or any other conduct prohibited under RCW 10.99.020, 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.
  6. 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.
4. Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (i) fear for their safety or the safety of others; or (ii) suffer substantial emotional distress.
“Supportive Measures” means reasonably available, individualized and appropriate, non-punitive and non-disciplinary measures offered by the Agency to the Complainant or Respondent without unreasonably burdening either Party, and without fee or charge for purposes of:
1. Restoring or preserving that Party’s access to the Agency’s educational Program or Activity, including measures that are designed to protect the safety of the parties or the Agency’s educational environment; or
2. Providing support during the Agency’s Investigation and Disciplinary Procedures, or during any informal resolution process.
3. Supportive Measures may include, but are not limited to: counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of campus; restriction on contact applied to one or more Parties; leave of absence; change in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to Sex-based Harassment.
“Title IX Personnel” are the Title IX Coordinator and designees; Investigators; and, Decisionmakers, at both the hearing and appeal level responsible for administering this Procedure; facilitators of the Informal Sex Discrimination Resolution Process; and any other employees who are responsible for implementing this Procedure for students or employees or have the authority to modify or terminate Supportive Measures.
“Title IX Coordinator” is responsible for processing Title IX Complaints and conducting or overseeing formal investigations and any informal resolution processes under this Procedure.

Training Requirements

All Sex Discrimination training materials will be made available for review upon request.

All Employees – All employees shall undergo training on the following topics:
1. The definition and scope of Sex Discrimination and Sex-based Harassment under these procedures;
2. The Agency’s obligation to address Sex Discrimination in its education programs and activities;
3. Employee responsibility, upon learning of a student’s pregnancy or related condition, to provide the student with the Title IX Coordinator’s contact information and information about available assistance;
4. Employee obligations to notify the Title IX Coordinator about conduct that may reasonably be Sex Discrimination.
Title IX Personnel - In addition to the required training for all employees, Title IX Personnel shall undergo training on the following topics:
1. The Agency’s grievance procedures for Sex Discrimination and Sex-based Harassment involving a student;
2. How to conduct an investigation;
3. How to serve impartially without prejudgment of facts, conflicts of interest, or bias;
4. Use of technology during an investigation or hearing;
5. The definition of Relevance as used for purposes of evaluating evidence and questions for purposes of this Procedure; and
6. Effective report writing.
Informal Resolution Facilitators - In addition to the required training for all employees and Title IX Administrators, informal resolution facilitators shall undergo training on the procedures for the Agency’s informal resolution process.
Title IX Coordinator and Designees – In addition to the required training for all employees and for Title IX Personnel, the Title IX Coordinator and any designees shall undergo training on the following topics:
1. How to ensure the Agency’s compliance with its Title IX obligations;
2. How to offer and coordinate supportive measures;
3. Specific actions to prevent discrimination and ensure equal access upon learning of a student’s pregnancy or related conditions;
4. The Agency’s recordkeeping system and requirements.

Investigation Procedures

Title IX Coordinator Investigation Duties

During an investigation, the Title IX Coordinator or a delegate is responsible for the following:

Accepting, evaluating, and processing all Sex Discrimination and Sex-based Harassment Complaints, reports or referrals.
Conducting an intake meeting with the Complainant and, at that time, notifying the Complainant, or the individual who reported the conduct if the complainant is unknown, of this Procedure, as well as the informal resolution process if appropriate and available. After providing this information, the Title IX Coordinator will ascertain whether the Complainant would like the Agency to proceed with an investigation of the Sex Discrimination Complaint.
Initiating a Complaint subject to the procedure and factors set forth in Section C (Title IX Coordinator Initiated Complaint of this Procedure.
Addressing and resolving, if possible, questions regarding confidentiality raised by Parties and witnesses.
Determining whether a Complaint should be dismissed during the investigation phase, and if so, notifying the Complainant or the Parties (if Respondent has been notified of the Complaint) of the reasons for the dismissal, and providing the Complainant or Parties with information about the procedure for filing an appeal of the dismissal.
Maintaining accurate records of all Complaints, reports, and referrals.
Retaining investigation files, Complaints, reports, and referrals in compliance with applicable records retention periods or federal or state law, whichever is longer.
Either conducting an impartial investigation of a Complaint or assigning the investigation to an impartial investigator and overseeing the investigation.
Engaging in an interactive process with both Parties to identify and provide Supportive Measures that ensure during the investigation and disciplinary processes that the Parties have equitable access to education programs and activities and are protected from further discrimination or retaliation.
Upon completion of an investigation, issuing or overseeing the issuance of a final investigation report to the parties and to the appropriate disciplinary authority in compliance with this Procedure.
If a Complainant or Respondent is an elementary or secondary student with a disability, consulting with one or more members, as appropriate, of the student’s Individualized Education Program (IEP) team, if any, or one or more members, as appropriate of the group of persons responsible for the student’s placement decision under 34 CFR 104.45(c), if any, to determine how to comply with the requirements of the Individuals with Disabilities Education Act and the Rehabilitation Act of 1973, throughout the Agency’s implementation of this Procedure.

Filing a Complaint

The following people have a right to make a complaint of sex discrimination, including complaints of sex-based harassment, requesting that the Agency investigate and make a determination about alleged discrimination under Title IX:

A “complainant,” which includes:
1. A student or employee of the Agency who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or
2. A person other than a student or employee of the Agency who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX at a time when that individual was participating or attempting to participate in the Agency’s education program or activity;
A parent, guardian, or other authorized legal representative with the legal right to act on behalf of a complainant; or
The Agency’s Title IX Coordinator.

If the Complaint is against the Title IX Coordinator, the Complainant should report the matter to the superintendent’s office for referral to an alternate designee.

Name: Sean McCormick

Office: Washington State School for the Blind

2214 East 13^th Street MS: S-27

Vancouver, WA 98661-4120

360-947-3308

sean.mccormick@wssb.wa.gov

Title IX Coordinator Initiated Complaint

In the absence or withdrawal of any or all allegations in a Complaint, the Title IX Coordinator may file a Complaint based on their evaluation of the following factors:
1. A Complainant’s request not to proceed with initiation of a Complaint;
2. A Complainant’s reasonable safety concerns regarding initiation of a Complaint;
3. The risk additional acts of Sex Discrimination would occur if the Complaint is not initiated;
4. The severity of the alleged Sex Discrimination, including whether the discrimination if established, would require the removal of the Respondent from campus or imposition of other disciplinary sanction(s) to end the discrimination and prevent its recurrence;
5. The age and relationship of the parties, including whether the Respondent is a Agency employee;
6. The scope of the alleged Sex Discrimination, including information suggesting a pattern, on-going Sex Discrimination, or Sexual Discrimination alleged to have impacted multiple individuals;
7. The availability of evidence to assist a Decisionmaker with determining whether Sex Discrimination occurred; and
8. Whether the Agency could end the alleged Sex Discrimination and prevent its recurrence without initiating an investigation and disciplinary procedure.
If, upon evaluating these and any other relevant factors, the Title IX Coordinator determines that the alleged conduct poses an imminent threat to the health or safety of the Complainant or to other members of the WSSB community or that the alleged conduct prevents the Agency from ensuring equal access on the basis of sex to its educational programs and activities, then the Title IX Coordinator may initiate a Complaint.
When initiating a Complaint, the Title IX Coordinator will provide the Complainant with advance notice of this decision and an opportunity to appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including the provision of Supportive Measures.
Regardless of whether a Complaint is initiated under this section, the Title IX Coordinator must take other prompt and effective steps, in addition to those steps necessary to effectuate remedies for the individual Complainant, to ensure that Sex Discrimination does not continue or recur within the Agency’s educational programs and activities.
The analysis set forth above need not be performed if the Title IX Coordinator reasonably determines that the alleged conduct could not constitute Sex Discrimination.

Principles of Investigation Applicable to Sex Discrimination Complaints

The Agency shall provide an adequate, reliable, and impartial investigation of complaints of sex discrimination by:

Treating Complainants and Respondents equitably.
Presuming that the Respondent is not responsible for the alleged sex discrimination until a determination of responsibility is made at the conclusion of the investigation and disciplinary processes.
Having the investigation conducted by a neutral and unbiased investigator without a conflict of interest or bias for or against Complainants or Respondents generally, or an individual Complainant or Respondent.
Having the decisionmaker make findings of fact based on the preponderance of the evidence standard.
Placing the burden on the Agency—not on the Parties—to conduct an investigation that gathers sufficient evidence to determine whether Sex Discrimination occurred.
Objectively evaluating all evidence that is Relevant and not otherwise impermissible — including both inculpatory and exculpatory evidence — and provide credibility determinations that are not based solely on a person’s status as a Complainant, Respondent, or witness.
Providing an equal opportunity for Parties to present fact witnesses and other inculpatory or exculpatory evidence that is relevant and not otherwise impermissible.

Timeframes for Major Stages of the Procedure

The Agency has established the following timeframes for the major stages of this Procedure:

The Title IX Coordinator will decide whether to dismiss or investigate a complaint within ten (10) business days subject to exigent circumstances and/or applicable collective bargaining agreement considerations relevant to the situation.
The Title IX Coordinator will complete the investigation within sixty (60) business days subject to exigent circumstances and/or applicable collective bargaining agreement considerations relevant to the situation.
The decisionmaker will make a determination of responsibilities within thirty (30) business days after the investigation’s completion subject to exigent circumstances and/or applicable collective bargaining agreement considerations relevant to the situation.
A party may appeal the determination by submitting a notice of appeal to School’s superintendent or designee within twenty-one (21) calendar days.
The superintendent will make a decision on the appeal within ten (10) business days subject to exigent circumstances and/or applicable collective bargaining agreement considerations relevant to the situation.

The Agency has also established the process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay:

The Title IX Coordinator, decisionmaker, or superintendent, may send written notice to the parties stating the extension of the timeframe for a major stage and the reason for the extension.
A party may submit a written request to the Title IX Coordinator asking for an extension of the timeframe for a major stage and the reason for requesting the extension.

Confidentiality

The Agency will seek to protect the privacy of the Complainant to the fullest extent possible, consistent with the legal obligation to investigate, offer appropriate Supportive Measures and/or take disciplinary action, and comply with the federal and state law, as well as Agency policies and procedures. Although the Agency will attempt to honor Complainant requests for confidentiality, it cannot guarantee complete confidentiality. Determinations regarding how to handle requests for confidentiality will be made by the Title IX Coordinator.
The Title IX Coordinator will inform the Complainant about the Agency’s Sex Discrimination investigation and disciplinary processes and attempt to obtain consent from the Complainant before commencing an investigation of alleged Sex-based Harassment. If a Complainant asks that their name not be revealed to the Respondent or that the Agency not investigate the allegation, the Title IX Coordinator will inform the Complainant that maintaining confidentiality may limit the Agency's ability to fully respond to the allegations and that retaliation by the Respondent and/or others is prohibited. If the Complainant still insists that their name not be disclosed or that the Agency not investigate, the Title IX Coordinator will determine whether the Agency can honor the request and at the same time maintain a safe and nondiscriminatory environment for all members of the WSSB community, including the Complainant.
If the Agency is unable to honor a Complainant’s request for confidentiality, the Title IX Coordinator will notify the Complainant of the decision and disclose the Complainant’s identity only to the extent reasonably necessary to effectively conduct and complete the investigation in compliance with this Investigation Procedure.
If the Agency decides not to conduct an investigation or take disciplinary action because of a request for confidentiality, the Title IX Coordinator will evaluate whether other measures are available to address the circumstances giving rise to the Complaint and prevent their recurrence, and implement such measures if reasonably feasible.
While the Agency will take reasonable steps to protect the privacy of the parties and witnesses during this Procedure, these steps will not restrict the ability of the parties to obtain and present evidence, including by speaking to witnesses; consult with their family members, confidential resources, or advisors; or otherwise prepare for or participate in this Procedure. The parties cannot engage in retaliation, including against witnesses.

Notice of Allegations and other Notice Requirements

Notice of Allegations. Upon initiation of this Procedure, the Title IX Coordinator will notify the parties of the following:

The Agency’s Sex Discrimination Investigation and Disciplinary Procedure and any informal resolution process;
Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), the conduct alleged to constitute sex discrimination, and the date(s) and location(s) of the alleged incident(s);
Retaliation is prohibited; and
The parties are entitled to an equal opportunity to access a description of the Relevant, not otherwise impermissible evidence and that both parties shall have an equal opportunity to review such evidence upon request.

Notice of Additional Allegations. If during the course of the investigation, the Agency decides to investigate additional allegations of sex discrimination by the respondent toward the complainant that are not included in the notice provided or that are included in a complaint that is consolidated, the Agency will notify the parties of the additional allegations.

Dismissal of Complaint

Discretion to Dismiss. During an investigation, a Sex Discrimination Complaint may be dismissed, in whole or in part, for the following reasons:
1. The Respondent cannot be identified, after the Agency has taken reasonable steps to do so;
2. The Respondent is not participating in the Agency’s educational programs or activities and is not employed by the Agency.
3. The Complainant has voluntarily withdrawn any or all of the allegations in the Complaint, and the Title IX Coordinator has declined to initiate their own Complaint, and any remaining allegations would not constitute Sex Discrimination, even if proven. In cases involving allegations of Sex-based Harassment, the Agency must obtain the Complainant’s withdrawal in writing before dismissal.
4. The conduct alleged by the Complainant, even if proven, would not constitute Sex Discrimination. However, before the dismissing the complaint, the Agency will make reasonable efforts to clarify the allegations with the complainant; or
5. The conduct alleged by the Complainant falls outside the Agency’s disciplinary jurisdiction.
Notice of Dismissal. Upon dismissal, the Agency will promptly notify the complainant of the basis for the dismissal. If the dismissal occurs after the Respondent has been notified of the allegations, then the Agency will also notify the Respondent of the dismissal and the basis for the dismissal promptly following notification to the Complainant, or simultaneously if notification is in writing.
Notice of Right to Appeal Dismissal. The Agency will notify the Complainant that a dismissal may be appealed and will provide the complainant with an opportunity to appeal the dismissal of a complaint. If the dismissal occurs after the Respondent has been notified of the allegations, then the Agency will also notify the Respondent that the dismissal may be appealed. Dismissal may be appealed on the following bases:
1. Procedural irregularity that would change the outcome;
2. New evidence that would change the outcome and that was not reasonably available when the dismissal was made; and
3. The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against Complainants or Respondent generally or the individual Complainant or Respondent that would change the outcome.
Appeal of Dismissal. If the dismissal is appealed, the Agency will:
1. Notify the parties of any appeal, including notice of the allegations, if notice was not previously provided to the Respondent;
2. Implement appeal procedures equally for the parties;
3. Ensure that the decisionmaker for the appeal did not take part in an investigation of the allegations or dismissal of the complaint;
4. Ensure that the decisionmaker for the appeal has been trained consistent with the Title IX regulations;
5. Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and
6. Notify the parties of the result of the appeal and the rationale for the result.
Post-Dismissal Actions. When a complaint is dismissed, the Agency will, at a minimum:
1. Offer supportive measures to the Complainant as appropriate;
2. If the Respondent has been notified of the allegations, offer supportive measures to the respondent as appropriate; and
3. Take other prompt and effective steps, as appropriate, through the Title IX Coordinator to ensure that sex discrimination does not continue or recur within the Agency’s education program or activity.
Alleged Violations of Other Laws or Regulations. Dismissal of a Sex Discrimination Complaint does not preclude the Agency from investigating and pursuing discipline based on allegations that a Respondent violated other federal or state laws and regulations, Agency conduct policies, and/or other codes and contractual provisions governing student and employee conduct.

Consolidation of Complaints

The Agency may consolidate complaints of sex discrimination against more than one respondent, or by more than one complainant against one or more respondent, or by one party against another party, when the allegations of sex discrimination arise out of the same facts or circumstances. When more than one complainant or more than one respondent is involved, references to a party, complainant, or respondent include the plural, as applicable.

Investigation Process

The Agency will provide for adequate, reliable, and impartial investigation of complaints.
The burden is on the Agency – not on the parties – to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred.
The Agency will provide an equal opportunity for the parties to present fact witnesses and other inculpatory and exculpatory evidence that are relevant and not otherwise impermissible.
The Agency will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance.
The Agency will provide each party with an equal opportunity to access the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, in the following manner:
1. The Parties are entitled to an equal opportunity to access a description of the Relevant, not otherwise impermissible evidence and that both parties shall have an equal opportunity to review such evidence upon request.
2. The Agency will provide a reasonable opportunity to respond to the evidence or the accurate description of the evidence; and
3. The Agency will take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through this Procedure. Disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex discrimination are authorized.

Questioning the Parties and Witnesses

The Agency will provide a process that enables the decisionmaker to question parties and witnesses to adequately assess a party’s or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination. This process involves:

The decisionmaker will request the party or witness to attend an interview.
During the interview, the decisionmaker may ask questions that do not seek irrelevant or impermissible evidence.

Determination Whether Sex Discrimination Occurred

Following an investigation and evaluation of all relevant and not otherwise impermissible evidence, the Agency will:

Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred. The standard of proof requires the decisionmaker to evaluate relevant and not otherwise impermissible evidence for its persuasiveness. If the decisionmaker is not persuaded under this standard by the evidence that sex discrimination occurred, whatever the quantity of the evidence is, the decisionmaker will not determine that sex discrimination occurred.
Notify the parties in writing of the determination whether sex discrimination occurred under Title IX including the rationale for such determination, and the procedures and permissible bases for the Complainant and Respondent to appeal;
Not impose discipline on a Respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the grievance procedures that the respondent engaged in prohibited sex discrimination.
If there is a determination that sex discrimination occurred, the Title IX Coordinator will, as appropriate:
1. Coordinate the provision and implementation of remedies to a Complainant and other people the Agency identifies as having had equal access to the Agency’s education program or activity limited or denied by sex discrimination;
2. Coordinate the imposition of any disciplinary sanctions on a Respondent, consistent with applicable collective bargaining agreements and policies, including notification to the complainant of any such disciplinary sanctions; and
3. Take other appropriate prompt and effective steps to ensure that sex discrimination does not recur within the Agency’s education program or activity.
Comply with the grievance procedures and applicable collective bargaining agreements before the imposition of any disciplinary sanctions against a Respondent.

Appeal of Determinations

The Agency offers the following process for Title IX appeals from a determination whether sex discrimination occurred:

A Complainant or Respondent may request the superintendent to review the decisionmaker’s determinations.
A Complainant or Respondent must submit a written Notice of Appeal to the superintendent’s office within five (5) business days of the determination.
The superintendent will make a decision on the appeal within five (5) business days of receiving the Notice of Appeal.

This appeal process will be, at a minimum, the same as the Agency offers in all other comparable proceedings, including proceedings relating to other discrimination complaints.

Informal Resolution

The Parties may pursue informal resolution during the investigation of a concern. Informal Resolution is not appropriate when the allegation involves:

A Respondent who poses an immediate threat to the health, safety or welfare of a member of the WSSB community;
An employee, who is alleged to have engaged in Sex-based Harassment of a Student Complainant; or
When informal resolution would conflict with Federal, State or local law.

If Informal Resolution is appropriate, the Parties may explore resolution through:

Guided conversations or communications conducted by the Title IX Coordinator, a Human Resource Representative, or some other mutually agreed upon third party;
A structured resolution process conducted by a trained mediator; or
Voluntary agreement between the Parties to alter either or both Parties’ School work or class schedules or residential housing arrangements.

A proposal to engage in Informal Resolution should be provided to the Parties in the Notice of Allegations, or after the Notice of Allegations has been served on both Parties.

Before engaging in Informal Resolution, WSSB must provide written notification to the Parties of their rights and responsibilities. This notice will explain:

The allegations;
The requirements of the informal resolution process;
That, prior to agreeing to a resolution, any Party has the right to withdraw from the informal resolution process and initiate or resume the formal resolution process;
That the Parties’ agreement to a resolution at the conclusion of the Informal Resolution process would preclude the Parties from initiating or resuming the Formal Resolution process;
That the potential terms that may be requested or offered in an informal resolution agreement, including notice that any Informal Resolution agreement will only be binding on the Parties to the agreement; and
What information WSSB will retain from the Informal Resolution process and how that information will be used, if the process is not successful and the formal resolution process is initiated or resumed.

Because the Informal Resolution process is voluntary, either Party may withdraw from the Informal Resolution process at any time, at which point the formal investigation process will resume.

If the Parties voluntarily resolve a Complaint, WSSB will record the terms of the resolution in written agreement signed by both Parties and provide written notice to both Parties that the Complaint has been closed.

If the Parties agree to an Informal Resolution process, WSSB will commence informal resolution within ten (10) calendar days after the parties agree to this option and conclude within sixty (60) calendar days of beginning that process subject to reasonable delays and extensions for good cause shown.

Supportive Measures

The Agency will offer and coordinate supportive measures as appropriate for the Complainant or Respondent to restore or preserve that person’s access to the Agency’s education program or activity or provide support during this Procedure or the information resolution process.

For complaints of sex-based harassment, these supportive measures may include, but are not limited to: counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of campus; restriction on contact applied to one or more Parties; leave of absence; change in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to Sex-based Harassment.

Disciplinary Procedures

Rights of Parties

The provisions of this Procedure shall apply equally to the Respondent and the Complainant.

The Agency bears the burden of offering and presenting sufficient evidence to establish that the Respondent is responsible for engaging in sex discrimination, sex-based harassment, or retaliation related to or arising from such allegations by a preponderance of the evidence.

The Respondent will be presumed not responsible until such time as the disciplinary process has been finally resolved.

Disciplinary Process for Sex-Based Harassment

Following a determination that sex-based harassment occurred, the determination will be provided to the Respondent’s Appointing Authority for review and a disciplinary decision consistent with the Collective Bargaining Agreement.

Disciplinary Sanctions and Remedies

Following a determination that sex-based harassment occurred, the Agency may impose disciplinary sanctions, which may include the full range of progressive discipline up to and including termination. The Agency may also provide remedies, which may include alternate work assignment or location, flexible/alternate work hours, additional training related to sex-based harassment.