1B.1.1 Investigation and Resolution

Responsible Position

Human Resources Officer

RELATED ITEMS

Minnesota Statute Chapter 14

Minnesota Statute 363A.03, subd. 23

Minnesota State Board Policy 

1B.1 Equal Opportunity and Nondiscrimination in Employment and Education

Minnesota State System Procedure 

1B.1.1 Investigation and Resolution

PROCEDURES

Purpose

To implement ATCC Policy 1B.1 Equal Opportunity and Nondiscrimination in Employment and Education and provide a process for investigating and resolving allegations of violations of the policy.

Definitions

Complainant
An individual who alleges they are the subject of discrimination, harassment, or retaliation as defined by ATCC Policy 1B.1.

Decision-maker
An administrator who:

  • Completed decision-maker training provided by the system office within the past three years,
  • Is designated by the president or chancellor to review investigation reports,
  • Determines whether ATCC Policy 1B.1 has been violated based upon the investigation, and
  • Determines or recommends the appropriate action for the college to take based upon the findings.

Designated officer
An individual who:

  • Completed training provided by the system office within the past three years,
  • Is designated by the president or chancellor to be primarily responsible for conducting an initial inquiry,
  • Determines whether to offer informal resolution,
  • Determines whether to proceed with an investigation under this procedure, and
  • Investigates or coordinates the investigation of reports/complaints of discrimination, harassment, and retaliation as defined by ATCC Policy 1B.1 in accordance with this procedure.

Investigator
A person who:

  • Has completed training provided by the system office within the past three years,
  • Is designated by the designated officer to conduct an inquiry, investigate, or coordinate the investigation of reports/complaints of discrimination, harassment, and retaliation as defined by ATCC Policy 1B.1 in accordance with this procedure,
  • Determines or recommends whether to proceed with an investigation under this procedure,
  • Prepares investigation reports, and
  • May be the designated officer.

Respondent
An individual who is alleged to have engaged in conduct that could constitute discrimination, harassment, or retaliation as defined in ATCC Policy 1B.1

Reporting Discrimination/Harassment/Retaliation

Reporting

Individuals who believes they or others have been or are being subjected to conduct prohibited by ATCC policy 1B.1 are encouraged to make a report of the incident to a designated officer. Reports should be made as soon as possible after the alleged conduct occurs. Any student, faculty member, or employee who knows of, receives information about, or receives a complaint of discrimination/harassment is strongly encouraged to report the information or complaint to the designated officer at ATCC.

Duty to Report

Administrators and supervisors report allegations of conduct that they reasonably believe may constitute discrimination, harassment, or retaliation as defined by ATCC Policy 1B.1 to the designated office. Additionally, administrators and supervisors, in consultation with the designated officer, may inquire into and resolve such matters.

Reports/complaints against the president

A report/complaint against the ATCC president must be filed with the Minnesota State system office designated officer. However, complaints against the ATCC president may be processed by ATCC if the president’s role in the alleged incident was limited to a decision on a recommendation made by another administrator, such as tenure, promotion, or non-renewal, and the president had no other substantial involvement in the matter.

False Statements Prohibited

Any individual who is determined to have provided false information in filing a report/complaint or during the investigation of such a complaint may be subject to disciplinary or corrective action.

Withdrawn Complaints

If a complainant withdraws their complaint, ATCC, may at their discretion, continue to investigate and take appropriate action.

Right to representation

In accordance with federal law and applicable collective bargaining agreement and personnel plan language, represented employees may have the right to request and receive union representation during an investigatory meeting.

Nothing in this procedure is intended to expand, diminish or alter in any manner whatsoever any right or remedy available under a collective bargaining agreement, personnel plan or law. Any disciplinary action imposed as a result of an investigation conducted under this procedure will be processed in accordance with the applicable collective bargaining agreement or personnel plan.

Investigation and Resolution

ATCC has an affirmative action duty to take timely and appropriate action to stop behavior prohibited by ATCC policy 1B.1, conduct investigations and take appropriate action to prevent recurring misconduct.

Personal resolution

This procedure neither prevents nor requires the use of informal resolution by an individual who believes they have been subject to conduct in violation of ATCC policy 1B.1. In such a situation, the individual should clearly explain the alleged offender as soon as possible after the incident that the behavior is objectionable and must stop. If the behavior does not stop or if the individual believes retaliation may result from the discussion, the individual should report to the designated officer. Under no circumstance shall an individual be required to use personal resolution to address prohibited behaviors.

Information privacy

Confidentiality of information obtained during an investigation cannot be guaranteed; such information, however, will be handled in accordance with applicable federal and state data privacy laws.

Processing the complaint

The designated officer must be contacted in order to initiate a report/complaint under this procedure. The scope and process used in each report/complaint shall be determined by the designated officer based on the complexity of the allegations, the number of relationship of individuals involved, and other pertinent factors.

  1. Jurisdiction. The designated officer shall determine whether the report/complaint is one which should be processed through another procedure available to the complainant; if appropriate, the designated officer shall direct the complainant to that procedure as soon as possible.
  2. Conflicts. The designated officer should identify to the president any real or perceived conflict of interest in proceeding as the designated officer for a specific complaint. If the president determines that the conflict exists, another designated officer shall be assigned.
  3. Information provided to complainant. At the time the report/complaint is made, the designated officer shall:
    1. inform the complainant of the provisions of ATCC policy 1B.1 and this procedure;
    2. provide a copy of or web address to ATCC policy 1B.1 and this procedure to the complainant;
    3. determine whether other individuals are permitted to accompany the complainant during investigatory interviews and the extent of their involvement; and
    4. inform the complainant of the provisions of ATCC policy 1B.1 prohibiting retaliation.
  4. Complaint documentation. The designated officer shall ensure that the complaint is documented in writing. The designated officer may request, but not require the complainant to document the complaint in writing using the complaint form of the college.
  5. Information provided to the respondent. At the time initial contact is made with the respondent, the designated officer shall inform the respondent in writing of the existence and general nature of the complaint and the provisions of the nondiscrimination policy. At the initial meeting with the respondent, the designated officer shall: 
    1. provide a copy of or web address for ATCC policy 1B.1 and this procedure to the respondent;
    2. provide sufficient information to the respondent consistent with federal and state data privacy laws to allow the respondent to respond to the substance of the complaint;
    3. explain to the respondent that in addition to being interviewed by the designated officer, the respondent may provide a written response to the allegations;
    4. determine whether other individuals are permitted to accompany the respondent during investigative interviews and the extent of their involvement; and
    5. inform the respondent of the provisions of ATCC policy 1B.1 prohibiting retaliation.
  6. Investigatory process. The designated officer shall:
    1. conduct a fact-finding inquiry or investigation into the complaint, including appropriate interviews and meetings;
    2. inform the witnesses and other involved individuals of the prohibition against retaliation;
    3. create, gather and maintain investigative documentation as appropriate;
    4. disclose appropriate information to others only on a need to know basis consistent with state and federal law, and provide a data privacy notice in accordance with state law; and
    5. handle all data in accordance with applicable federal and state privacy laws.
  7. Interim actions.
    1. Employee reassignment or administrative leave. Under appropriate circumstances, the president may, in consultation with system legal counsel and labor relations, reassign or place an employee on administrative leave at any point in time during the report/complaint process. In determining whether to place an employee on administrative leave or reassignment, consideration shall be given to the nature of the alleged behavior, the relationships between the parties, the context in which the alleged incidents occurred and other relevant factors. Any action taken must be consistent with the applicable collective bargaining agreement or personnel plan.
    2. Student summary suspension or other action. Under appropriate circumstances, the president, in consultation with system legal counsel, summarily suspend a student at any point in time during the report/complaint process. A summary suspension may be imposed only in accordance with ATCC policy 3.6 and associated ATCC procedures. After the student has been summarily suspended, the report/complaint process should be completed within the shortest reasonable time period, not to exceed nine (9) class days. During the summary suspension, the student may not enter the campus or participate in any ATCC activities without obtaining prior permission from the president or designee. Other temporary measures may be taken in lieu of summary suspension where the president or designee determines such measures are appropriate.
  8. No basis to proceed. At any point during the processing of the complaint, the designated officer may determine there is no basis to proceed under ATCC policy 1B.1. The designated officer shall refer the complaint as appropriate. The designated officer shall notify the complainant and respondent of the outcome as appropriate, in accordance with applicable data privacy laws.
  9. Timely completion. ATCC must provide resources sufficient to complete the investigative process and issue a written response 

Resolution

After processing the complaint, the designated officer may consider one or more of the following methods to resolve the complaint as appropriate:

  1. conduct or coordinate education/training:
  2. facilitate voluntary meetings between the parties; 
  3. recommend separation of the parties, after consultation with appropriate college personnel;
  4. other possible outcomes may include recommending changes in workplace assignments, enrollment in different course or program, or other appropriate action;
  5. ATCC may use alternative dispute resolution or mediation services as a method of resolving discrimination or harassment complaints. Alternative dispute resolution and mediation options require the voluntary participation of all parties to the complaint;
  6. upon completion of inquiry, the designated officer may dismiss or refer the complaint to others as appropriate. 

  1.  

Decision process

If the above methods have not resolved the complaint within a reasonable period of time to the satisfaction of the designated officer, or the designated officer feels additional steps should be taken, these procedures should be followed:

  1. Designated officer. The designated officer shall:
    1. prepare an investigation report and forward it to the decisionmaker for review and decision;
    2. take additional investigative measures as requested by the decisionmaker; and
    3. be responsible for coordinating responses to requests for information contained in an investigation report in accordance with the Minnesota Government Data Practices Act and other applicable law including, but not limited to, the Family Educational Rights and Privacy Act (FERPA). In determining the appropriate response, the designated officer shall consult with the campus data practice compliance official and/or the Office of General Counsel.
  2. Decision maker. After receiving the investigation report prepared by the designated officer, the decisionmaker shall:
    • determine whether additional steps should be taken prior to making the decision. Additional steps may include:
      • a request that the designated officer conduct further investigative measures;
      • a meeting with the complainant, respondent or other involved individuals. If a meeting involving a represented employee is convened, the complainant or respondent may choose to be accompanied by the bargaining unit representative, in accordance with applicable collective bargaining agreement and federal and state law; and
      • a request for additional information which may include a written response from the complainant or respondent relating to the allegations of the complaint.
    • take other measures deemed necessary to determine whether a violation of ATCC policy 1B.1 has been established;
    • when making the decision, take into account the totality of the circumstances, including the nature and extent of the behaviors, the relationship(s) between the parties, the context in which the alleged incident(s) occurred, and other relevant factors;
    • determine the nature, scope and timing of disciplinary or corrective action and the process for implementation if a violation of the nondiscrimination policy occurs. This may include consultation with human resources or supervisory personnel to determine appropriate discipline.
    • As appropriate, consistent with applicable state and federal data privacy laws, report in writing to the complainant, respondent and the designated officer their findings, and the basis for those findings as to whether ATCC policy 1B.1 has been violated.
    • Conduct that is determined not to have violated ATCC policy 1B.1 shall be referred to another procedure for further action, if appropriate.

 

    ATCC action

    ATCC shall take the appropriate corrective action based on results of the investigation, and the designated officer shall make appropriate inquiries to ascertain the effectiveness of any corrective or disciplinary action. Complainants are encouraged to report any subsequent conduct that violates ATCC policy 1B.1, as well as allegations of retaliation.

    Written notice to parties relating to discipline, resolutions, and/or final dispositions resulting from the report/complaint process is deemed to be official correspondence from ATCC. In accordance with state law, ATCC is responsible for filing the complaint disposition concerning complaints against the employees with the Commissioner of Employee Relations within 30 days of the final disposition.

    Appeal

    Filing an appeal

    The complainant or the respondent may appeal the decision of the decisionmaker. An appeal must be filed in writing with the president or designee within ten (10) business days after notification of the decision. The appeal must state specific reasons why the complainant or respondent believes the decision was improper. In a complaint against a president or other official who reports directly to the chancellor, an appeal may be considered by the chancellor whether or not the chancellor served as the decisionmaker.

    Effect of review

    For employees represented by a collective bargaining agreement, an appeal under this procedure is separate and distinct from, and is not in any way related to, any contractual protections or procedures. During the pendency of the appeal, disciplinary or corrective action taken as a result of the decision shall be enforced. In addition, in cases involving sanctions of suspension for ten (10) days or longer, students shall be informed of their right to a contested case hearing under Minnesota Statutes Chapter 14.

    Appeal Process

    The president or designee shall review the record and determine whether to affirm or modify the decision. The president or designee may receive additional information if the president or designee believes such information would aid in the consideration of the appeal. The decision on appeal shall be made within a reasonable time and the complainant, respondent and designated official shall be notified in writing of the decision, consistent with applicable state and federal data privacy laws. The decision on appeal exhausts the complainant’s and respondent’s administrative remedies under this procedure except as provided herein.

    Education and training

    ATCC shall provide education and training programs to promote awareness and prevent discrimination/harassment, such as educational seminars, peer-to-peer counseling, operation of hotlines, self-defense courses, and informational resources. Education and training programs should include education about ATCC policy 1B.1 and this procedure. ATCC shall promote awareness of ATCC policy 1B.1 and this procedure, and shall publicly identify the designated officer.

    Distribution of ATCC policy 1B.1 and this procedure

    Information regarding ATCC policy 1B.1 and this procedure shall, at a minimum, be distributed to students at the time of registration and to employees at the beginning of their employment. Distribution may be accomplished by posting on an internet Web site, provided all students and employees are directly notified of how to access the policy and procedure by an exact address, and that they may request a paper copy. Copies of the policy and procedure shall be conspicuously posted at appropriate locations at the college at all times and shall include the designated officers’ names, locations and telephone numbers.

    Designated officers also must be identified by name, location and phone number in informational publications such as student catalogs, student and employee handbooks, bulletin boards, campus Web sites and other appropriate public announcements.

    Maintenance of report/complaint procedure documentation

    During and upon completion of the complaint process, the complaint file shall be maintained in a secure location in the office of the designated officer for ATCC in accordance with application records retention schedules. Access to the data shall be in accordance with the respective collective bargaining agreement or personnel plan, the Minnesota Government Data Practices Act, the Family Educational Rights and Privacy Act or other applicable law.

    Annual Report to Board of Trustees

    ATCC annually submits pertinent ATCC Policy 1B.1 information to the Minnesota State system Office of Equity and Inclusion. The Offices and General Counsel and Equity and Inclusion submit an annual report to the Board of Trustees of summary data showing Minnesota State Board Policy 1B.1 complaints, categories of complaints, and findings of violations.