ERP Investigation

Upon receipt of an ERP complaint, the EDEC typically appoints one or more investigators from among the OEC staff to conduct an investigation overseen by the OEC staff. Notwithstanding the foregoing, certain instances (such as conflicts of interest, logistical, or other concerns) may cause the University to utilize an outside consultant or expert to facilitate the investigation. In such instances, all policies, procedures, and standards in the Comprehensive Policy will apply.

The University strives to resolve all Equitable Resolution Procedures ("ERP") complaints in a prompt and timely manner; however, the precise timeline for an ERP case may vary based on the circumstances at hand.

The ERP may be delayed and/or individual time frames may be extended to a limited extent for good cause and with written notice to the parties of the delay or extension and the reasons therefor. Good cause may include various considerations, including but not limited to, the absence of a party, or a witness; extraordinary complexity or scope of the case; concurrent law enforcement activity; the need for language/translation assistance; or accommodations for disabilities or health conditions.

Throughout any delay or extension, the University may implement supportive measures as deemed appropriate, and parties are periodically updated on the status of their case.

One of the most critical investigative steps is meeting with and interviewing the primary parties in a case (complainant and respondent). The purpose of these interviews includes collecting as much information as possible about the relevant details of the allegation(s); asking probing and clarifying questions; soliciting suggested witnesses or other individuals with whom the investigator may wish to follow up to corroborate information; reviewing and exploring available relevant documentation or other physical evidence (including video footage, digital communications, photographs, etc.); and assessing the credibility of the parties.

Investigative interviews may be conducted in-person or remotely/virtually, using available audiovisual technology such as Zoom™. Parties are interviewed separately, as the University maintains that the Equitable Resolution Procedures ("ERP") is an administrative, non-adversarial process, separate and distinct from any criminal or civil court process. To afford both parties the opportunity to present questions of one another, the investigator invites parties to propose questions that they believe should be asked of other parties or witnesses. Such questions must be submitted in writing to the investigator before the conclusion of the investigation phase.

Upon receipt of requested/proposed questions, the investigator either (a) presents the question (re-worded as needed) to the intended party/witness, or (b) indicates to the requesting party the reasons why the question will not be asked. The investigator has absolute discretion to determine which questions are relevant to the investigation and may decline to pose or permit certain questions. Responses to questions – including a refusal to answer a given question – are noted and included in the final investigation report.

No audio or video recording of any kind is permitted by anyone other than the investigator, during any meetings or interviews associated with the ERP. If the investigator elects to audio and/or video record interviews, all parties present are first made aware of and must consent to the recording. If a party does not consent to the recording of an interview, the interview may be facilitated through the exchange of written questions and answers. Transcriptions of recorded interviews are included as part of the Preliminary Investigation Report and Final Investigation Report, and may be accessed by the parties, hearing administrator(s), or appeal administrator(s) during any hearing or appellate review.

Interview recordings remain a part of the case file through the final resolution of the matter (including any applicable appeal), and may be accessed as needed by any ERP administrator who takes part in the process (including appellate officers), upon request.

Both parties have an equal opportunity to present relevant witnesses and recommended questions for the witnesses to be considered by the investigator. Upon the presentation of relevant witnesses, parties are asked to explain what relevance the witness has to the allegation(s) under investigation. Investigators are not compelled to interview all presented witnesses, but if an investigator declines to interview a witness for lack of relevance, the investigator must provide a rationale for determining that the witness was not relevant.

Witnesses (as distinguished from the parties) who are students or faculty or staff employees are expected to cooperate with and participate in the University’s investigation and administration resolution processes. Failure of such witnesses to cooperate with and/or participate in good faith in an investigation – absent good cause such as a superseding safety interest – may warrant discipline.

Investigative interviews may be conducted in-person or remotely/virtually, using available audiovisual technology such as Zoom™. Witnesses are interviewed separately. In some cases, witnesses may also provide written statements in lieu of interviews, but written statements may be afforded limited weight as an investigator may not be able to assess credibility without interviewing a witness.

Though investigations vary in nature based on the context of the underlying allegations, parties have a full and fair opportunity to present evidence and to review and respond to all relevant evidence that will be relied on by any investigator or other administrator in making a decision.

Formal rules of evidence do not apply. Any evidence that the investigator believes is relevant and credible may be considered, with the following exceptions: (1) other incidents not directly related to the possible violation, unless they evidence a pattern or cumulative impact on a protected class in the aggregate; (2) the sexual history of an individual (though a limited exception may be made regarding sexual history between parties when related to past practices of communicating consent); or (3) the general character of an individual (as distinct from evidence that goes towards credibility, which may always be considered).

The investigator is responsible for addressing any evidentiary concerns prior to and/or during the investigation, and the investigator may exclude irrelevant or immaterial evidence and/or disregard evidence lacking in credibility or that is improperly prejudicial. The investigator will consult with the Executive Director for Equity & Compliance on all questions of procedure and evidence.

Prior to the conclusion of the investigation, investigators will provide parties a reasonable opportunity to respond to relevant evidence that has been collected. Investigators may draft a preliminary investigation report (“PIR”) that includes or summarizes the relevant evidence that will be relied on in making a decision.

When a PIR is drafted, parties are invited (though not required) to review the PIR and provide a written response to the report within five business days. Upon receiving responses from either party, the investigator may share information in the response with the other party to solicit additional information, or may otherwise conduct further inquiry as needed. Investigators then add any additional relevant information to the PIR and finalize the investigation by converting the PIR to a final investigation report (see Article 2, subsection IV(I)). The University also reserves the right to redact or limit information shared with parties or other individuals (including withholding a PIR), to protect privacy or safety interests.

Upon the conclusion of the investigation, the investigator drafts a comprehensive final investigation report (“FIR”) which includes a credibility assessment (when applicable) and a balanced, impartial analysis of the facts as supported by available evidence. Credibility determinations may not be based in any way on an individual’s mere status as a complainant, respondent, or witness.

The FIR concludes with the investigator’s findings, based on the investigator’s professional expertise and understanding of the Comprehensive Policy as applied to the relevant facts under a preponderance of the evidence standard. The FIR clearly indicates whether the respondent is found to be RESPONSIBLE or NOT RESPONSIBLE for each allegation, and these findings are accompanied by an analysis and rationale.

Once the FIR has been finalized, the investigator, EDEC, or other designee, sends the parties a written notice of findings (“NOF”), providing access to review the FIR, informing the parties of the outcome of the investigation, and either referring the matter for administrative resolution and/or informing the parties of their rights to appeal (if applicable). The University reserves the right to redact or limit information shared with the parties or other individuals to protect privacy or safety interests.