Next Steps: DOE- Covered Conduct

For complaints of Sexual Harassment and Sexual Violence that occurred on or before August 14, 2020, this webpage provides an overview of the process for receiving and responding to concerns. This process was initiated following the federal Title IX regulations that went into effect on 8/14/2020. 

For the overview of the process for non-DOE Covered Conduct and discrimination concerns, please go to the webpage Next Steps: Non-DOE-Covered Conduct and Discrimination Concerns for more information.
 

What is DOE-Covered Conduct?

Conduct is DOE-Covered Conduct if all of the below are true:

•  Date
• The alleged conduct occurred on or after August 14, 2020.
• Territoriality
• The Complainant was in the United States when the conduct allegedly occurred.
• Program or Activity
• The conduct occurred in a University program or activity, meaning the location was either:
  • on-campus, or
  • off-campus, and the conduct occurred:
         o in the context of University operations;
         o at a location, event or circumstance over which the University exercised substantial control over the Respondent and the context in which the conduct occurred; or
         o at a building owned or controlled by a student organization that is officially recognized by the University.

DOE Sex-Based Misconduct 

• The alleged conduct is DOE Sex-Based Misconduct, meaning it is any of the following:
   
• • conduct by an employee that meets the definition of Quid Pro Quo Sexual Harassment;
  
  • unwelcome sexual or other sex-based conduct (as defined in Section II of the Policy) that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denied the Complainant equal access to the University’s programs or activities;
  
  • conduct that meets the definition of Sexual Assault-Penetration, Relationship Violence, and/or Stalking;
  
  • intentionally touching Complainant’s intimate body part (genitals, anus, groin, breast, or buttocks) without the Complainant’s consent (as defined in Section II of the Policy);
  
  • sexual intercourse with a person under the age of 18; or
  
  • conduct that meets the definition of Invasion of Sexual Privacy, and that a reasonable person would determine was so severe, pervasive, and objectively offensive that it effectively denied the Complainant equal access to the University’s programs or activities.

Initial Assessment 

The Title IX Officer will assess the report to determine whether to open a DOE Grievance Process, Alternative Resolution, or other Resolution Process. For a flowchart that provides a summary of the initial assessment, please click here to get the PDF summary of the process.
 

•  Formal Complaint from a Qualified Complainant 
• The Title IX Officer will first determine whether they received a DOE Formal Complaint from a qualified Complainant. To be such, the report must:
  • allege conduct that occurred on or after August 14, 2020;
  • be in writing;
  • be made by the person who allegedly experienced the harassment, and not by a third party;
  • be made by a person qualified to make it under the DOE Regulations, meaning someone participating or attempting to participate in a University program or activity;
  • be against an identified Respondent;
  • request an investigation; and
  •allege DOE Sex-Based Misconduct, as defined above.
  
  Yes DOE Formal Complaint: If the report is a DOE Formal Complaint from a qualified Complainant, the Title IX Officer must next determine whether they are required to “dismiss” it (Required Dismissal of Formal Complaint, below).
  
  No DOE Formal Complaint: If the report is not a DOE Formal Complaint from a qualified Complainant, the Title IX Officer must still determine whether the alleged conduct is DOE-Covered Conduct (DOE-Covered Conduct, above); if it is, the Title IX Officer may need to themselves “sign” a DOE Formal Complaint (Decision to Open or Close, below). Note: Before signing themselves, the Title IX Officer will inform a qualified Complainant of how to make a DOE Formal Complaint, and give them that opportunity.
• Required Dismissal of Formal Complaint
• If the report is a DOE Formal Complaint from a qualified Complainant, the Title IX Officer will next determine whether they must “dismiss” the complaint or any of its allegations. They must “dismiss” the complaint if the conduct, even if true, is not DOE-Covered Conduct, as defined in Section B (DOE-Covered Conduct, above).
  
  This “dismissal” is required by the DOE regulations, and means the Title IX Officer will no longer consider the allegations DOE-Covered Conduct. It does not necessarily mean the Title IX Officer will close the matter. Rather, the Title IX Officer will decide whether and how to continue resolution of the dismissed allegations, as explained below.
  
  No Dismissal: If dismissal is not required, the Title IX Officer will begin either a DOE Grievance Process or Alternative Resolution.
  
  Yes Dismissal: If dismissal is required, the Title IX Officer will “dismiss” the complaint per Required Dismissal of Formal Complaint, below.
• DOE-Covered Conduct
• If the report is not a DOE Formal Complaint from a qualified Complainant, the Title IX Officer will determine whether the report is nonetheless of DOE-Covered Conduct, as defined above.
  
  No DOE-Covered Conduct: If the conduct is not DOE-Covered Conduct, this is the end of the DOE process. The Title IX Officer will continue their assessment under Section V.A.3 of the Policy and decide whether to open a different Resolution Process. For more information about this process, please go to Next Steps: Non-DOE Covered Conduct & Discrimination Concerns.
  
  Yes DOE-Covered Conduct: If the conduct is DOE-Covered Conduct, the Title IX Officer will decide whether to close the matter or, instead, open a DOE Grievance Process, Alternative Resolution, or Other Inquiry (Decision to Close or Open, below).
• Decision to Close or Open
• If the Title IX Officer did not receive a DOE Formal Complaint from a qualified Complainant, yet the alleged conduct is DOECovered Conduct, then they must either:
  • close the matter,
  • “sign” a DOE Formal Complaint themselves and open either a DOE Grievance Process or Alternative Resolution, or
  • open an Other Inquiry (if it applies).
  
  Decision to Close. The Title IX Officer may decide to close the matter when, for example, the Complainant does not want an investigation and the Title IX Officer determines one is not necessary.
  
  Decision to Sign. The Title IX Officer may decide to sign a DOE Formal Complaint themselves when, for example:
  • the Complainant does not want an investigation, but the Title IX officer determines one is necessary (see Section V.A.5.b)
  • the Complainant does want an investigation, but is not qualified to make a DOE Formal Complaint themselves because they are not participating or attempting to participate in a University program or activity (for example, they are a former employee or student, or third party)
  • the Complainant’s identity is unknown (for example, when the Complainant reported anonymously or a third party report did not identify the Complainant)
  
  Decision to Open Other Inquiry. The Title IX Officer may decide to open an Other Inquiry when the University cannot discipline the Respondent—for example, when the Respondent is not an employee or a student. Complainant Rights. If the Title IX Officer signs the DOE Formal Complaint, they will notify the person who allegedly experienced the conduct, if known, who will be and have all rights of a Complainant in the Resolution Process.

Dismissal of Allegations

The Title IX Officer must (i.e., is required to) “dismiss” allegations in a DOE Formal Complaint if:

• they determine during the Initial Assessment that the alleged conduct, even if true, is not DOE-Covered Conduct, or
• they determine during the investigation that the alleged conduct, even if true, did not occur in a University program or activity or that the Complainant was not in the United States at the time of the alleged conduct.

• Significance of Dismissal
• As noted above, “dismissal” means the Title IX Officer will no longer consider the allegations DOE-Covered Conduct. It does not necessarily mean the Title IX Officer will close the matter. Rather, the Title IX Officer will decide whether and how to continue resolution of the dismissed allegations.
  
  If as a result of dismissal there are no allegations of DOE-Covered Conduct, then any further investigation will be as Formal Investigation (see Section V.A.5 of this Policy).
  
  If after the dismissal there are still other allegations of DOE-Covered Conduct, then the Title IX Officer will continue following the procedures in the DOE Grievance Process for all allegations, per  Consolidation of DOECovered Conduct Allegations with other Prohibited Conduct Allegations below; that is, the Title IX Officer will notify the parties that the dismissed allegations are not covered by the DOE Regulations, but will still process all allegations under the DOE Grievance Process for clarity and consistency.
  
  If the matter is in Alternative Resolution, the Title IX Officer may continue with that process, but will notify the parties which allegations were dismissed and which (if any) continue to be considered DOE-Covered Conduct.
• Notice of Dismissal
•  If the Title IX Officer is required to “dismiss” allegations from a DOE Formal Complaint, they will notify the parties in writing:
  
  a. of the allegations dismissed and the reasons;
  b. whether they will continue resolution of the dismissed allegations and, if so, under what Resolution Process;
  c. that the parties can appeal the dismissal on the grounds listed below;
  d. that the parties will be notified in writing if the other party appeals;
  e. that the parties will have equal rights during any appeal process, including the opportunity to submit a written statement in support of, or challenging, the dismissal;
  f. that a written decision on the appeal and the rationale will be issued simultaneously to both parties;
  g. contact information for the appeal officer; and
  h. that this Policy prohibits Retaliation.
• Grounds for Appeal of Dismissal
• The appeal should identify the reason the party is challenging the dismissal on one or more of the available grounds:
  
  a. there was procedural error that affected the decision to dismiss; procedural error refers to alleged deviations from University policy, and not challenges to policies or procedures themselves;
  b. there is new evidence that was not reasonably available at the time of the decision to dismiss that could affect the decision; or
  c. the Title IX Officer or investigator had a conflict of interest or bias that affected the decision.

Appeal of Dismissal

• Commencing an Appeal of Dismissal
• An appeal must be submitted to the appeal officer within 5 business days after notice of dismissal. The appeal must identify the grounds for appeal and contain specific arguments supporting each ground. The appeal officer will notify the other party of the appeal and that the other party can submit a written statement in response to the appeal, within three business day.
• Standards for Deliberation
•  The appeal officer will decide whether the appealing party has proven the asserted grounds for appeal. They will consider the notice of dismissal, the appeal statements of the parties, and any additional information from the Title IX Officer.
• Decision by Appeal Officer.
• The appeal officer may:
  
  a. uphold the dismissal;
  b. overturn the dismissal; or
  c. in appeals alleging new evidence, send the case back to the Title IX Officer with a request to determine whether the new evidence affects the dismissal and report back to the appeal officer.
• Notice of Decision
•  Within 10 business days of receiving the appeal, the appeal officer will provide their written decision to the parties and the Title IX Officer, to include:
  
  a. a statement of the grounds identified on appeal;
  b. a summary of the information considered by the appeal officer; and
  c. the decision of the appeal officer and the rationale for the decision.

Review of Information 

For all concerns, the Title IX Officer/Chief Compliance Officer may consult with other offices (e.g.,Academic Personnel Offices, Student Affairs Offices, Human Resources or Employee and Labor Relations Offices, etc.) as necessary to determine next appropriate steps and to assess immediate health and safety concerns. This can be done once a report is received, after an intake, or before/after an intake. 

• Consultation/Immediate Health and Safety Assessment
• The Title IX Officer/Chief Compliance Officer, in coordination with the Case Management Team, and in consultation with the Complainant when possible, will:
  • make an immediate assessment of the health and safety of the Complainant and the campus community,
  • determine and oversee interim measures that are immediately necessary (including no contact orders), and
  • provide to the Complainant a written explanation of rights and reporting options (including the right to report to the police), and available campus and community resources.

Paths for Resolution

Paths for Resolution

For concerns that are not closed after initial assessment, they may be addressed through one of our resolution pathways outlined below. Regardless which path is chosen to resolve the concern, the named complainant would be informed of the action taken.  Resolution Processes are non-adversarial proceedings.

ll pathways are available to all complaint types with the exception of Alternative Resolution only being available for sexual violence and sexual harassment cases. 

• Mitigating Measures
• This can be the informal response to SVSH concerns where when the Complainant is a student and the Respondent is an employee, but an investigation is not charged.
  
  Mitigating Measures can include remedies such as:
  • Helping you communicate directly with the other person.
  • Arranging for a UCD official to talk with the other person (a “no-fault” or “notice” conversation.)
  • Helping parties agree to certain changes in how you interact.
  • Separating you and the other person.
  • Negotiating a disciplinary agreement with the other person.
  • Conducting training on discrimination for an individual, department or group.
  • Using Student Health and Counseling Services (SHCS) or the Academic and Staff Assistance Program (ASAP) for emotional support.
  • Other strategies you and the University agree to try.
  
  Please note at this stage, if allegations are shared with the respondent, no complainants are named. However, respondents may be informed of allegations at this stage and can assume based on the information provided who the complainant is. That is why we emphasize retaliation is prohibited. For information on retaliation, please see Understanding the Process.
• Alternative Resolution (only Sexual Violence and Sexual Harassment cases)
• Alternative Resolution is not available when the Complainant is a student and the Respondent is an employee.
  
  After an initial assessment of the alleged facts, the Title IX Officer may—if the Complainant and Respondent agree in writing—begin an Alternative Resolution process. The Title IX Officer will, if appropriate, begin the process in consultation with other offices depending on whether the Complainant and Respondent are faculty, other academic appointees, staff, student employees, or students.
  
  Alternative Resolution may include, among other responses:
  • separating the parties;
  • providing for safety;
  • referring the parties to counseling;
  •mediation (except in cases of sexual violence);
  • referral for disciplinary action;
  • an agreement between the parties;
  • conducting targeted preventive educational and training programs; and
  • conducting a follow-up review to ensure that the resolution has been carried out effectively.
  
  Alternative Resolution may be especially useful when:
  • an Investigation is not likely to lead to a resolution;
  • both parties prefer an informal process; or
  • a case involves less serious allegations
  
  Once the parties have agreed to the terms of an Alternative Resolution, the University will not conduct a DOE Grievance Process unless the Title IX Officer determines that the Respondent failed to satisfy the terms of the Alternative Resolution, or that the Alternative Resolution was unsuccessful in stopping the Prohibited Conduct or preventing its recurrence. 
  
  For alternative resolution to be successful, both parties must agree to the outcome. This means that no action, including referral for discipline, will typically occur unless both the Complainant and Respondent agree. Sometimes, though, alternative resolution includes actions by the University to support the Complainant—the Respondent need not agree to or know about these. Either party can terminate the alternative resolution process at any time before it is completed. Additionally, the Title IX Officer can terminate the process if it appears that the process will not be successful. If the process is terminated, the DOE grievance process will generally be used to resolve the conflict
  
  For more information on Alternative Resolution, please see this document: Sexual Violence and Sexual Harassment Resolution Process Frequently Asked Questions
• DOE Grievance Process
• Most complaints are resolved through Mitigiating Measures or Alternative Resolution, but some cases may need to be investigated before they can be resolved. 
  The Title IX Officer will begin a DOE Grievance Process when they determine it is necessary per Appendix IV. This may happen after an Alternative Resolution to address DOE-Covered Conduct that ends before the parties agree on terms. The DOE Grievance Process begins with an investigation.
  
  If the Complainant does not want an Investigation, the Title IX Officer will seriously consider this preference. However, the Title IX Officer may determine an investigation is necessary to mitigate a risk to the campus community. If the Title IX Officer/Chief Compliance Officer begins an Investigation despite the Complainant’s request, the Title IX Officer/Chief Compliance Officer will provide the Complainant with all information required by this Policy unless the Complainant states in writing that they do not want it.
  
  If the Title IX Officer does not begin a an investigation, they will inform the Complainant that this limits possible remedies. The Title IX Officer will nonetheless provide Mitigating Measures as appropriate and consistent with Complainant’s privacy and the absence of a an investigation.
  
  If the University decides an investigation is necessary, the Title IX Officer appoints an official investigator. The complainant and the respondent will be notified of the investigation. The investigator will conduct separate interviews with the complainant, the respondent, and other potential witnesses. The investigator may recommend that certain steps (interim measures) be taken to protect the complainant or witnesses at any time during the investigation. The investigator will prepare and submit a report addressing whether or not University policy was violated. If there is a finding of a policy violation, the University will consider disciplinary action against the respondent and/or other remedies that may be appropriate. 
• Other Inquiry 
• When a report is not closed after initial assessment yet is not appropriate for DOE Grievance Process because there is no individual identifiable Respondent over whom the Title IX Officer has jurisdiction, the Title IX Officer will:
  • conduct an inquiry to try to determine what occurred, and
  • take prompt steps reasonably calculated to stop any substantiated conduct, prevent its recurrence, and, as appropriate, remedy its effects.
  
  Such an inquiry may be appropriate when, for example, the Complainant alleges Prohibited Conduct by an organization, a person whose identity is unknown, or a third party, or alleges conduct by multiple people that rises to the level of Prohibited Conduct only when considered in the aggregate. The extent of the inquiry and responsive steps will depend on the specific circumstances.
  
  This includes, for example:
  • the nature and location of the alleged conduct,
  • the University’s relationship to the Complainant, and
  • the University’s relationship to and level of control over the organization or person alleged to have engaged in the conduct. 

Case Consolidation 

The following provisions apply when the University opens a DOE Grievance Process.

• Consolidation of DOE Formal Complaints.
• The Title IX Officer may consolidate allegations of DOE-Covered Conduct against multiple respondents, by multiple complainants, or by one party against the other party, when the allegations arise out of the same facts or circumstances.
• Consolidation of DOE-Covered Conduct Allegations with other Prohibited Conduct Allegations
• When allegations of DOE-Covered Conduct and allegations of other Prohibited Conduct or of violations of other University policies arise from the same facts or circumstances, the Title IX Officer will process all allegations under the DOE Grievance Process procedures for clarity and consistency. The Title IX Officer will clearly document and inform the parties of which allegations are and are not DOE-Covered Conduct.