Grievance Procedure for Complaints of Sex Discrimination

Grievance Procedure for Complaints of Sex Discrimination

Policy Statement

Durham Technical Community College does not discriminate on the basis of sex and prohibits sex discrimination in any Education Program or Activity that it operates, as required by Title IX, including in admission and employment.

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In accordance with Title IX, and consistent with Durham Tech’s commitment to upholding the highest standards of human respect and dignity, any form of sexual discrimination is taken seriously and will be investigated.

Procedure

1. Effective Date

This Procedure applies to incidents that occur on or after August 1, 2024. Any incidents reported under this Procedure that occurred on or before July 31, 2024, will be processed through the institution’s Sexual Misconduct Policy (4.7a).

Should any portion of the 2024 Title IX Final Rule (89 Fed. Reg. 33474 (Apr. 29, 2024)), be stayed or held invalid by a court of law, or if the 2024 Title IX Final Rule is withdrawn or modified to not require elements of this Grievance Procedure, the Grievance Procedure in its entirety, or the invalidated elements of this Procedure, they will be deemed revoked as of the publication date of the opinion or order from the Court and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by the date of the opinion or order publication by the Court. If this Procedure is revoked in this manner, any conduct covered under this Procedure shall be investigated and adjudicated under the previous 2020 Title IX Grievance Policy/Sexual Misconduct policy and procedure (for reports of Sexual Misconduct that reportedly occurred on or after August 14, 2020). Durham Tech will update this Grievance Procedure as soon as practicable to reflect any court rulings or changes that invalidate parts of the Grievance Procedure, if applicable.

2. Scope of Procedure

Durham Tech has adopted a grievance procedure that provides for the prompt and equitable resolution of sex discrimination Complaints made by students, employees, or other individuals who are participating or attempting to participate in its Education Program or Activity, or by the Title IX Coordinator, alleging any action that would be prohibited by Title IX or the Title IX regulations.

Sex discrimination, as defined by Title IX, includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

Title IX’s prohibition on sex discrimination includes sex-based harassment in the form of quid pro quo harassment, hostile environment harassment, and four specific offenses (sexual assault, dating violence, domestic violence, and stalking). For the prompt and equitable resolution of Complaints of sex-based harassment involving a student Party, the institution will utilize Durham Tech’s Sex-Based Harassment Grievance Procedure 4.7c.

3. Jurisdiction of Procedure

This Procedure applies to all sex discrimination occurring under Durham Tech’s Education Program or Activity in the United States.

Conduct that occurs under Durham Tech’s Education Program or Activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by Durham Tech and conduct that is subject to Durham Tech’s disciplinary authority.

Durham Tech has an obligation to address a sex-based hostile environment under its Education Program or Activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient’s Education Program or Activity or outside the United States.

In the limited circumstances in which Title IX permits different treatment or separation on the basis of sex, Durham Tech must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm, except as permitted by law.

4. Basic Requirements of Title IX Grievance Procedure:

• Equitable Treatment: Durham Tech will treat Complainants and Respondents equitably.
   
• Conflicts and Bias: Durham Tech requires that any Title IX Coordinator, investigator, or decisionmaker not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. A decisionmaker may be the same person as the Title IX Coordinator or investigator.
   
• Presumption: Durham Tech presumes that the Respondent is not responsible for the alleged sex discrimination until a determination is made at the conclusion of its Grievance Procedure.
   
• Reasonably Prompt Timeframes: Durham Tech has established timeframes for the major stages of the grievance procedures: The College will make a good faith effort to complete the resolution process within a 60 to 90 business day time period, including appeal if any, which can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate, as well as an estimate of how much additional time will be needed to complete the process. Following receipt of notice or a complaint of an alleged violation of this Policy, the Title IX Coordinator engages in an initial assessment, typically within five business days.
   
• The Title IX Coordinator reaches out to the Complainant to offer supportive measures and works with the Complainant to ensure they are aware of their rights, the process ahead, and determine whether an informal resolution option is appropriate. If an informal resolution option is preferred, the Title IX Coordinator assesses whether the complaint is suitable for informal resolution, which informal mechanism may serve the situation best or is available, and may seek to determine if the Respondent is also willing to engage in informal resolution.
   
• If a Formal Grievance Process is preferred by the Complainant, the Title IX Coordinator determines if the misconduct alleged falls within the scope of the applicable Title IX regulations, based on the date of the alleged conduct. The investigation is typically initiated within 5 business days after the Responding party receives a Notice of Allegations. However, in some cases, the Title IX Coordinator may determine that a risk assessment tool for behaviors of concern should be conducted. Threat assessment is the process of evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. This assessment may add 3 to 5 business days to the timeframe of the initiation of the investigation. 
   
• Extensions: Durham Tech has also established the following 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: upon receipt of a request by a party, the Investigator or Title IX Coordinator will determine whether, based on the complexity of the issues or quantity of the evidence to review, an extension is warranted.  If an extension is warranted, the Title IX Coordinator will notify all parties to the complaint and provide a reasonable amended timeframe.
   
  • Privacy: Durham Tech will take reasonable steps to protect the privacy of the Parties and witnesses during its grievance 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 the grievance procedure. The Parties cannot engage in retaliation, including against witnesses.
     
  • Objectivity: Durham Tech will objectively evaluate all evidence that is relevant and not otherwise impermissible including both inculpatory and exculpatory evidence. Credibility determinations will not be based on a person’s status as a Complainant, Respondent, or witness.
     
  • Impermissible Evidence: The following types of evidence, and questions seeking that evidence, are impermissible (i.e., will not be accessed or considered, except by Durham Tech to determine whether one of the exceptions listed below applies; will not be disclosed; and will not otherwise be used), regardless of whether they are relevant:
     
    • Evidence that is protected under a privilege recognized by Federal or State law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
       
    • A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless Durham Tech obtains that Party’s or witness’s voluntary, written consent for use in its grievance procedures; and
       
    • Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.
       

5. Disability Accommodations

This Procedure does not alter any institutional obligations under federal and state disability laws, including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Procedure that do not fundamentally alter the Procedure. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.     

If the Complainant or Respondent discloses a disability, the Title IX Coordinator may consult, as appropriate, with the college’s Accessibilities Services office to provide support to students with disabilities to determine how to comply with Section 504 of the Rehabilitation Act of 1973 in the implementation of any supportive measures.

6. Reporting Sex Discrimination to the Institution

Complaints

The following people have a right to make a Complaint of sex discrimination, including Complaints of sex-based harassment, requesting that Durham Tech investigate and make a determination about alleged discrimination under Title IX:

• A “Complainant,” which includes: a student or employee of Durham Tech who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or 
• A person other than a student or employee of Durham Tech 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 Durham Tech’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 Durham Tech’s Title IX Coordinator.

With respect to Complaints of sex discrimination other than sex-based harassment, in addition to the people listed above, the following persons have a right to make a Complaint:

• Any student or employee of Durham Tech; or
• Any person other than a student or employee who was participating or attempting to participate in Durham Tech’s Education Program or Activity at the time of the alleged sex discrimination.

Types of Complaints that may be addressed under these Grievance Procedures include, but are not limited to, sex discrimination other than sex-based harassment, such as:

• Complaints of retaliation;
• Complaints of sex discrimination that do not involve sex-based harassment;
• Complaints regarding failure to make reasonable modifications to policies, practices or procedures as necessary to ensure equal access and prevent sex discrimination on the basis of parental, family or marital status, including pregnancy or related conditions; or 
• Complaints that Durham Tech’s policies or procedures discriminate on the basis of sex.

Complaints may be submitted in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Contact Information for the Title IX Coordinator at Durham Tech: 

Name: Victoria Deaton
Title: Title IX Coordinator/Compliance Officer
Office Address:1637 E. Lawson Street, Durham, NC 27703
Email Address: deatonv@durhamtech.edu
Telephone Number: (919) 536-7200 ext. 6013

Confidential Reports

The following officials at Durham Tech will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited by Title IX: 

• Title IX Coordinator or designee(s); 
• Officials with Authority to institute corrective measures under Title IX; 
• Other required reporters

The following officials at Durham Tech may provide confidentiality: 

• Courtney D. Higgins, M.Ed.; Coordinator of Counseling, Accessibility, and 504 Services
• Karen Mosley-Lyon, M.Ed.; Assist. Dir., Student Engagement

Public Awareness Events

When Durham Tech ‘s Title IX Coordinator is notified of information about conduct that reasonably may constitute sex-based harassment under Title IX or this policy that was provided by a person during a public event to raise awareness about sex-based harassment that was held on Durham Tech ‘s campus or through an online platform sponsored by it, Durham Tech is not obligated to act in response to the information, unless it indicates an imminent and serious threat to the health or safety of a Complainant, any students, employees, or other persons.

However, in all cases Durham Tech must use this information to inform its efforts to prevent sex-based harassment, including by providing tailored training to address alleged sex-based harassment in a particular part of its Education Program or Activity or at a specific location when information indicates there may be multiple incidents of sex-based harassment.

Nothing in Title IX or this policy obligates Durham Tech to require its Title IX Coordinator or any other employee to attend such public awareness events.

7. Supportive and Interim Measures

Providing Supportive Measures

Complainants who report allegations of sex-based harassment have the right to receive supportive measures from Durham Tech regardless of whether they file a Complaint. Supportive measures are non-disciplinary and non-punitive. Supportive measures may vary depending upon what is reasonably available at Durham Tech.

As appropriate, supportive measures may include but not be limited to: 

• Counseling services;
• Extensions of deadlines or other course-related adjustments;
• Modifications of work or class schedules;
• Campus escort services, as available;
• Restrictions on contact applied to one or more Parties (no contact orders)
• changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative;
• Leaves of absence;
• Increased security and monitoring of certain areas of the campus; or
• Training and education programs related to sex-based harassment.

Supportive measures must not unreasonably burden either Party and must be designed to protect the safety of the Parties or Durham Tech’s educational environment, or to provide support during Durham Tech’s sex-based harassment grievance procedure under this policy or during informal resolution under these procedures.

Durham Tech may modify or terminate supportive measures at the conclusion of the grievance procedure or at the conclusion of the informal resolution process or may continue them beyond that point within Durham Tech’s discretion.

Durham Tech will not disclose information about any supportive measures to persons other than the person to whom they apply, including informing one Party of supportive measures provided to another Party, unless necessary to provide the supportive measure or restore or preserve a Party’s access to Durham Tech’s Education Program or Activity, or there is an exception that applies, such as:

• Durham Tech has obtained prior written consent from a person with the legal right to consent to the disclosure; 
• When the information is disclosed to an appropriate third Party with the legal right to receive disclosures on behalf of the person whose personally identifiable information is at issue; 
• To carry out the purpose of the policy when it is necessary to address conduct that reasonably may constitute sex-based harassment under Title IX in Durham Tech’s Education Program or Activity; 
• As required by Federal law, federal regulations, or the terms and conditions of a federal award; or 
• To the extent such disclosures are not otherwise in conflict with Title IX, when required by State or local law or when permitted under the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g, or its implementing regulations, 34 CFR Part 99).  

Process for Review of Supportive Measures

Durham Tech provides for a Complainant or Respondent to seek modification or reversal of Durham Tech’s decision to provide, deny, modify or terminate a supportive measure.  

This review will be done by an impartial employee of Durham Tech , who did not make the challenged decision on the original supportive measure request. The impartial employee of Durham Tech who makes this determination will have the authority to modify or reverse the decision if that impartial employee determines that the decision to provide, deny, modify or terminate the supportive measure was inconsistent with the procedure as outlined above for providing supportive measures in accordance with the Title IX regulations.

Parties are only allowed to challenge their own individual supportive measures. Challenges by one Party will not be heard to supportive measures afforded to the opposite Party, unless that supportive measure directly impacts the Party making such challenge (i.e., two-way no contact orders).

8. Emergency Removal

Durham Tech retains the authority to remove a Respondent from Durham Tech’s Education Program or Activity on an emergency basis, where Durham Tech (1) undertakes an individualized safety and risk analysis, and (2) determines that an imminent and serious threat to the health or safety of a Complainant or any students, employees, or other persons arising from the allegations of sex-based harassment justifies removal.

Threat Assessment Team

A Threat Assessment Team is called together whenever a member of the College community reports a potential threat to the safety of members of the College community. This assessment can aid in critical and/or required determinations, including but not limited to the following:

• Emergency removal of a Respondent on the basis of immediate threat to an individual or the community’s physical health/safety
• Whether the Title IX Coordinator should pursue/sign a formal complaint absent a willing/able Complainant
• Whether it is reasonable to try to resolve a complaint through informal resolution, and if so, what approach may be most successful
• Whether a Clery Act Timely Warning/Trespass order is needed

The team’s ideal composition should be limited to a few individuals to protect confidential information yet ensure a diverse and informed assessment. The Threat Assessment Team typically consists of three or four individuals, depending on the nature of the perceived threat, with one representative from each of the following areas:

• Student Conduct – This representative is normally the Dean of Student Services.
• Public Safety – This representative is normally the Chief/Director of Campus Police and Public Safety. In their absence, another public safety employee (e.g., Sergeant, Security Supervisor, or Police Officer) may serve.
• Counseling – this representative is typically the Assistant Director of Student Services or one of the counseling staff.
• Division Head – This representative is normally the appropriate division head (e.g., Vice President/Chief Academic Officer) related to the academic area(s) for the student(s) involved.
• Title IX Coordinator – If the perceived threat is related to sexual misconduct or a Title IX-related concern, the Title IX Coordinator should be involved.

If Durham Tech determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal. The individual who hears the challenge to the removal determination shall not be an individual involved in any decision regarding responsibility or appeal of that decision regarding responsibility.

9. Administrative Leave

Durham Tech retains the authority to place a non-student employee Respondent on administrative leave during the Title IX Grievance Procedure, consistent with college policy, procedures, and the Employee Handbook.

Note on student employees: when a Complainant or Respondent is both a student and an employee of Durham Tech, Durham Tech must make a fact-specific inquiry to determine whether these procedures apply to that student employee. If the Complainant or Respondent’s primary relationship with Durham Tech is to receive an education and whether the alleged sex-based harassment occurred while the Party was performing employment-related work.

10. The Title IX Grievance Procedure for Sex Discrimination

Filing a Complaint

Who can make a Complaint?

• A Complainant, which includes: a student or employee of Durham Tech who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or a person other than a student or employee of Durham Tech 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 Durham Tech’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 Title IX Coordinator.

Title IX Coordinator initiated Complaints: In the absence of a Complaint or the withdrawal of any or all of the allegations in a Complaint, and in the absence or termination of an informal resolution process, the Title IX Coordinator must determine whether to initiate a Complaint of sex-based harassment. This determination is fact-specific, and the Title IX Coordinator must consider:

• The Complainant’s request not to proceed with the initiation of a Complaint; 
• The Complainant’s reasonable safety concerns regarding initiation of a Complaint; 
• The risk that additional acts of sex-based harassment would occur if a Complaint were not initiated; 
• The severity of the alleged sex-based harassment, including whether the sex-based harassment, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the sex-based harassment and prevent its recurrence; 
• The age and relationship of the Parties, including whether the Respondent is an employee of the recipient; 
• The scope of the alleged sex-based harassment, including information suggesting a pattern, ongoing sex-based harassment, or sex-based harassment alleged to have impacted multiple individuals; 
• The availability of evidence to assist a decisionmaker in determining whether sex-based harassment occurred; and 
• Whether Durham Tech could end the alleged sex-based harassment and prevent its recurrence without initiating these grievance procedures.

If after considering these and other relevant factors, the Title IX Coordinator determines that the conduct as alleged present as an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents Durham Tech from ensuring equal access on the basis of sex to its Education Program or Activity, the Title IX Coordinator may initiate a Complaint.

If the Title IX Coordinator does initiate the Complaint after making this determination, the Title IX Coordinator must notify the Complainant prior to doing so and appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including by providing supportive measures as listed in Section 7 of these procedures.

Format of Complaint

As defined in Section 6 of these procedures, a Complaint can be an oral or written request to Durham Tech that objectively can be understood as a request for Durham Tech to investigate and make a determination about alleged sex discrimination at the institution.

Who can I report a Complaint to?

Confidential Reports

The following officials at Durham Tech will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited by Title IX:
•    Title IX Coordinator or designee(s);
•    Officials with Authority to institute corrective measures under Title IX;
•    all other employees at Durham Tech that are not designated as confidential resources

The following officials at Durham Tech may provide confidentiality:
•    Courtney D. Higgins, M.Ed.; Coordinator of Counseling, Accessibility, and 504 Services
•    Karen Mosley-Lyon, M.Ed.; Assistant Director, Student Engagement

Consolidation of Complaints

Durham Tech may consolidate Complaints of sex discrimination against more than one Respondent, or by more than one Complainant against one or more Respondents, 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 below to a Party, Complainant, or Respondent include the plural, as applicable.

Allegations Potentially Falling Under Two Policies:

If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment.

Notice of Allegations

Upon initiation of Durham Tech’s Title IX grievance procedure, Durham Tech will notify the Parties of the following: 

• Durham Tech’s Title IX grievance 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); 
• That Retaliation is prohibited; and 
  The Parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence. The Parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any Party.]

If, in the course of an investigation, Durham Tech 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, Durham Tech will notify the Parties of the additional allegations.

Investigation

Durham Tech will provide for adequate, reliable, and impartial investigation of Complaints. The burden is on Durham Tech —not on the Parties—to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred. 

Durham Tech will provide an equal opportunity for the Parties to present fact witnesses and other inculpatory and exculpatory evidence that is relevant and not otherwise impermissible. Durham Tech will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance. 

Durham Tech 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:

Durham Tech will provide an equal opportunity to access either the relevant and not otherwise impermissible evidence, or an accurate description of this evidence. Durham Tech will provide the Parties with an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any Party.

Investigative Report:

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence and will provide that Report to the Parties at least 10  calendar days prior to the hearing in an electronic format for each Party’s review and written response.

The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of the relevant evidence.

Only relevant evidence (including both inculpatory and exculpatory – i.e., tending to prove and disprove the allegations - relevant evidence) will be referenced in the Investigative Report.

The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant.

Durham Tech will provide a reasonable opportunity to respond to the evidence or the accurate description of the evidence; and Durham Tech will take reasonable steps to prevent and address the Parties’ unauthorized disclosure of information and evidence obtained solely through the grievance procedures. Disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the Complaint of sex discrimination are authorized.

Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are impermissible (i.e., will not be accessed or considered, except by Durham Tech to determine whether one of the exceptions listed below applies; will not be disclosed; and will not otherwise be used), regardless of whether they are relevant:

Evidence that is protected under a privilege recognized by Federal or State law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;

A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless Durham Tech obtains that Party’s or witness’s voluntary, written consent for use in its grievance procedure; and

Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s consent to the alleged sex discrimination or preclude determination that sex discrimination occurred.

Questioning Parties and Witnesses to Aid in Evaluating Allegations and Assessing Credibility

When a party or witness’s credibility is in dispute, and such dispute is relevant to evaluating one or more allegations of sex discrimination, the investigator and/or decisionmaker must have an opportunity to question any party or witness whose credibility is in dispute in a live format.

The investigator/decisionmaker will 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 will occur during individual meetings with a Party or witness.

Each Party shall have the opportunity to propose questions that the Party wants asked of any Party or witness and have those questions asked by the investigator/decisionmaker during one or more individual meetings, including follow-up meetings, with a Party or witness, subject to the appropriate procedures outlined herein regarding the decisionmaker’s advance evaluation of all questions. Each Party will be provided with an audio or audiovisual recording or transcript with enough time for the Party to have a reasonable opportunity to propose follow-up questions.

Determination Regarding Responsibility

Following an investigation and evaluation of all relevant and not otherwise impermissible evidence, Durham Tech 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 by the evidence, under the applicable standard, 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, if applicable;
• Not impose discipline on a Respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the grievance procedure that the Respondent engaged in prohibited sex discrimination.

If there is a determination that sex discrimination occurred, the Title IX Coordinator will, as appropriate: 

• Coordinate the provision and implementation of remedies to a Complainant and other people Durham Tech identifies as having had equal access to Durham Tech’s Education Program or Activity limited or denied by sex discrimination; 
• Coordinate the imposition of any disciplinary sanctions on a Respondent, including notification to the Complainant of any such disciplinary sanctions; and 
• Take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within Durham Tech’s Education Program or Activity. 
• Comply with the grievance procedure before the imposition of any disciplinary sanctions against a Respondent; and 
• Not discipline a Party, witness, or others participating in the grievance procedure for making a false statement or for engaging in consensual sexual conduct based solely on the determination of whether sex discrimination occurred.

Informal Resolution

Procedures for Entering and Exiting Informal Resolution Process

At any time prior to determining whether Sex-Based Harassment occurred under this Grievance Procedure, including prior to making a Complaint, Parties may instead seek Durham Tech’s assistance to resolve allegations of Sex Discrimination, and may elect to enter the informal resolution process.

The Parties may voluntarily elect to enter Durham Tech’s informal resolution process at any time through an informed written Consent. This informed written Consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.

No Party may be required to participate in informal resolution, and Durham Tech may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.

The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the Grievance Procedure that the Parties paused will continue. In participating in the informal resolution process, the Parties understand that the timeframes governing the Grievance Procedure will temporarily cease, and only reinstate upon reentry into the Grievance Procedure.

Supportive Measures will be available, or continue to be available if already provided, during an informal resolution process, if elected to proceed. The Title IX Coordinator will also, to the extent necessary, take other appropriate prompt and effective steps to ensure that Sex Discrimination does not continue or recur within Durham Tech’s Education Program or Activity.

Notice Prior to Entry Into Informal Resolution Process

Before the initiation of an informal resolution process, the Title IX Coordinator must provide to the Parties a written notice that explains:

• 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 to initiate or resume Durham Tech’s Grievance Procedure.
• That the Parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude the Parties from initiating or resuming Durham Tech’s Grievance Procedure arising from the same allegations;
• The potential terms that may be requested or offered in an informal resolution agreement, including notice that an informal resolution agreement is binding only on the Parties; and
• What information Durham Tech will maintain and whether and how Durham Tech could disclose such information for use in its Grievance Procedure if they are initiated or resumed.

Determination to Approve Entry into Informal Resolution Process

Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator or other designated official  may approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator or other designated official may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, whether the alleged conduct would present a future risk of harm to others, and whether the Parties are participating in good faith. This determination is not subject to appeal.

Informal resolution processes may never be applied where the allegations include Sexual Assault: Penetration or the equivalent.

Informal resolution may be available to address allegations of Student-on-Student and is not allowed to address allegations of employee-on-Student Sex-Based Harassment.

At any time after the commencement of the informal resolution process, the [Title IX Coordinator or other designated official] may determine that the informal resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the Grievance Procedure. This determination is not subject to appeal.

If informal resolution is approved or denied, Durham Tech will provide the outcome in writing simultaneously to the Parties. If informal resolution is approved, the Title IX Coordinator shall also provide the information of the facilitator in writing to the Parties in a reasonable timeframe once the facilitator is assigned.

Role of the Facilitator

Informal resolution processes are managed by trained facilitators. All facilitators must not be the same person as the investigator or the/a decisionmaker(s) in Durham Tech’s Grievance Procedure. Any person designated to facilitate informal resolution must not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. The Title IX Coordinator may serve as the facilitator, subject to these restrictions.

All facilitators must have specialized training, required by law and regulation. Such training includes:

• Durham Tech’s obligation to address sex discrimination, including Sex-Based Harassment, in its Education Program or Activity;
• The scope of conduct that constitutes sex discrimination, including Sex-Based Harassment, under Title IX, including the definition of Sex-Based Harassment;
• All applicable notification and information requirements related to parental, family, or marital status, including pregnancy and related conditions, and Durham Tech’s response to sex discrimination;
• The rules and practices associated with Durham Tech’s informal resolution process; and
• How to serve impartially, including by avoiding conflicts of interest and bias.

Contents of Informal Resolution Agreements

Potential terms that may be included in an informal resolution agreement between the Parties include but are not limited to:

• Restrictions on contact; and
• Restrictions on the Respondent’s participation in one or more of Durham Tech’s education programs or activities or attendance at specific events, including restrictions Durham Tech could have imposed as Remedies or Disciplinary Sanctions had Durham Tech determined at the conclusion of the Grievance Procedure that Sex-Based Harassment occurred.

Breach of Informal Resolution Agreements

If a Party breaches the resolution or if Durham Tech has other compelling reasons, such as if it learns of any fraud by a Party in entering into the agreement, Durham Tech may void the agreement and initiate or resume the Grievance Procedure.

Confidentiality

In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the Complaint are confidential while the Parties participate in the informal resolution process. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization. Should the Parties withdraw from the informal resolution process, information disclosed or obtained for purposes of the informal resolution process may be incorporated into the Grievance Procedure, provided that this information is disclosed and reviewed by the Parties under Durham Tech’s Grievance Procedure.

Informal Resolution Options

Durham Tech offers the following informal resolution procedures for addressing Complaints of Sex-Based Harassment described under this Grievance Procedure

Administrative Resolution

Should the Parties mutually determine to enter the informal resolution process, and the Respondent elects to accept responsibility for the allegations of the Complaint at any point during the informal resolution process, the institution may administratively resolve the Complaint.

Where the Respondent admits responsibility, the Parties will receive simultaneous written notification of the acceptance of responsibility, and a decision-maker will convene to determine the Respondent’s sanction and other Remedies, as appropriate and consistent with institutional policy. The Parties will be given an opportunity to be heard at the sanctions hearing, including without limitation, the submission of impact statements, and the Parties may be accompanied by their Advisor, but questioning of Parties or witnesses will not be permitted. The Parties will receive simultaneous written notification of the decision regarding sanctions and Remedies, which may be appealed according to the process described below in  Section I. Appeal of Dismissals and Determinations.

Mediation

The purpose of mediation is for the Parties who are in conflict to identify the implications of a Student’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate Remedies to address them. Either Party can request mediation to seek resolution; mediation will be used only with the Consent of both Parties, who will be asked not to contact one another during the process. The Title IX Coordinator or designee will also review any request for mediation, and may decline to mediate based on the facts and circumstances of the particular case. Either Party has the right to terminate the mediation process and choose or resume another option for resolution at any time.

The mediation process will typically commence within 10 days after the Title IX officer receives Consent to mediate from both Parties, and has made its determination to allow informal resolution to go forward.  Mediation will continue until concluded or terminated by either Party, the facilitator, or the Title IX Officer. During mediation, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded, and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the Dean of Student Services to re-evaluate other options for resolution, including investigation or proceeding forward with the Grievance Procedure.

During mediation, a facilitator will guide a discussion between the Parties. In circumstances where the Parties do not wish to meet face to face, either Party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the Parties agree to meet face to face, each Party will be permitted to bring an advisor of their choice to any meetings who may be, but is not required to be, an attorney.

At the conclusion of the mediation, the facilitator will memorialize the agreement that was reached between the Parties. The Title IX Office will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.

Dismissal of a Complaint

Bases for Dismissal

Durham Tech may dismiss a Complaint of sex discrimination for any of the following reasons: 

• Durham Tech is unable to identify the Respondent after taking reasonable steps to do so; 
• The Respondent is not participating in Durham Tech’s Education Program or Activity and is not employed by Durham Tech; 
• The Complainant voluntarily withdraws any or all of the allegations in the Complaint, the Title IX Coordinator declines to initiate a Complaint under the bases described in these procedures, and Durham Tech determines that, without the Complainant’s withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute sex discrimination under Title IX or these grievance procedures even if proven; or 
• Durham Tech determines that the conduct alleged in the Complaint, even if proven, would not constitute sex discrimination under Title IX or these procedures. Note: Durham Tech must make reasonable efforts to clarify the allegations with the Complainant before dismissing under this basis.

Notice of Dismissal

Upon dismissal, Durham Tech 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 Durham Tech 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. 
Durham Tech 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 Durham Tech will also notify the Respondent that the dismissal may be appealed. Dismissals may be appealed on the following bases: 

• Procedural irregularity that would change the outcome; 
• New evidence that would change the outcome and that was not reasonably available when the dismissal was made; and 
• The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that would change the outcome.

Appeal rights must also be outlined in any notification of dismissal of a Complaint, as outlined below.

Appeal of Dismissals and Determinations

Durham Tech offers the following process for appeals from a dismissal or a determination whether sex discrimination occurred:

If the dismissal or determination is appealed, Durham Tech will: 

• Notify the Parties of any appeal, including notice of the allegations, if notice was not previously provided to the Respondent; 
• Implement appeal procedures equally for the Parties; 
• Ensure that the decisionmaker for the appeal did not take part in an investigation of the allegations or dismissal of the Complaint; 
• Ensure that the decisionmaker for the appeal has been trained consistent with the Title IX regulations;
• Provide the Parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and 
• Notify the Parties of the result of the appeal and the rationale for the result.

When a Complaint is dismissed, Durham Tech will, at a minimum: 

• Offer supportive measures to the Complainant as appropriate.
• If the Respondent has been notified of the allegations, offer supportive measures to the Respondent as appropriate; and 
• Take other prompt and effective steps, as appropriate, through the Title IX Coordinator to ensure that sex discrimination does not continue or recur within Durham Tech’s Education Program or Activity.

The submission of appeal stays (or pauses) any sanctions for the pendency (or duration while the appeal is being deliberated and decided upon) of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.

If a Party appeals, the institution will as soon as practicable notify the other Party in writing of the appeal, however the time for appeal shall be offered equitably to all Parties and shall not be extended for any Party solely because the other Party filed an appeal.

Appeals may be no longer than 2000 characters or 8 pages, (including attachments). Appeals should be submitted in electronic form using Arial or Times New Roman, 12-point font, and single-spaced. Appeals should use footnotes, not endnotes. Appeals that do not meet these standards may be returned to the Party for correction, but the time for appeal will not be extended unless there is evidence that a technical malfunction caused the appeal document not to meet these standards.

Appeals will be decided by an appeals committee that will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter.

The outcome of the appeal will be provided in writing simultaneously to both Parties and include rationale for the decision. The determination of the Appeal Decision-making Body is final.

Retaliation

Durham Tech prohibits retaliation, including peer retaliation, in its Education Program or Activity. Upon receiving a Complaint alleging retaliation or upon receiving information about conduct that reasonably may constitute retaliation under Title IX, Durham Tech will initiate its grievance procedure or, as appropriate, an informal resolution process.

Definitions

Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an Education Program or Activity operated by Durham Tech.

Consent – For the purposes of this policy, “consent” means informed, freely, and actively given and mutually understandable words or actions that indicate a willingness to participate in mutually agreed-upon activity. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a clear and unambiguous agreement between them to engage in certain conduct with each other. Consent cannot be gained by ignoring or acting in spite of the objections of another. Consent cannot be inferred from:

1. Silence, passivity, or lack of resistance alone; 
2. A current or previous dating or sexual relationship alone (or the existence of such a relationship with anyone else); 
3. Attire; 
4. The buying of dinner or the spending of money on a date; or 
5. Consent previously given (for example, consenting to one sexual act does not imply consent to another sexual act).
6. Consent is not effective if it is obtained through the use of physical force, violence, duress, intimidation, coercion, or the threat, expressed or implied, of bodily injury. Whether a party used intimidation or coercion to obtain consent will be determined by reference to the perception of a reasonable person found in the same or similar circumstances. Consent may never be given by:
7. Minors, even if the other participant did not know the minor’s age; 
8. Mentally disabled persons, if their disability was reasonably knowable to a sexual partner who is not mentally disabled; or 
9. Persons who are incapacitated.

The use of alcohol or drugs does not diminish one's responsibility to obtain consent and does not excuse conduct that constitutes sexual misconduct under these procedures.

If at any time during a sexual act any confusion or ambiguity is, or should reasonably be, apparent on the issue of consent, it is incumbent upon each individual involved in the activity to stop and clarify the other's willingness to continue and capacity to consent. Neither party should make assumptions about the other’s willingness to continue.

Complainant means:

1. a student or employee who is alleged to have been subjected to conduct that could constitute sex-based harassment as defined in this procedure and who was participating or attempting to participate in Durham Tech’s Education Program or Activity; or  
2. a person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex-based harassment under these grievance procedures and who was participating or attempting to participate in Durham Tech’s Education Program or Activity at the time of the alleged b.

Complaint means an oral or written request to Durham Tech that objectively can be understood as a request for Durham Tech to investigate and make a determination about alleged sex discrimination at the institution.

Confidential Employee means:  

1. an employee of Durham Tech whose communications are privileged under Federal or State law. The employee’s confidential status is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies;  
2. an employee of Durham Tech whom the recipient has designated as confidential for the purpose of providing services to persons related to sex discrimination. If the employee also has a duty not associated with providing those services, the employee’s confidential status is only with respect to information received about sex discrimination in connection with providing those services; or  
3. an employee of Durham Tech who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination. The employee’s confidential status is only with respect to information received while conducting the study.

Disciplinary Sanctions means consequences imposed on a Respondent following a determination under this grievance procedure that the Respondent violated Durham Tech’s prohibition on sex discrimination.

Education Program or Activity means all of the operations of a college, university, or other postsecondary institution, or a public system of higher education.

Party means Complainant or Respondent.

Peer Retaliation means retaliation by a student against another student.

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.

Relevant means related to the allegations of sex discrimination under investigation as part of this Grievance Procedure. 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, as appropriate, to a Complainant or any other person Durham Tech identified as having had their equal access to Durham Tech’s Education Program or Activity limited or denied by sex discrimination. These measures are provided to restore or preserve that person’s access to Durham Tech’s Education Program or Activity after Durham Tech determines that sex discrimination occurred.

Respondent means a person who is alleged to have violated Durham Tech’s prohibition on sex discrimination.

Retaliation means intimidation, threats, coercion, or discrimination by any person by Durham Tech, a student, or an employee or other person authorized by Durham Tech to provide aid, benefit, or service under Durham Tech’s  Education Program or Activity, for the purpose of interfering with any right or privileged secured by Title IX, 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 Grievance Procedure including an informal resolution process.

Sex-Based Harassment means sexual harassment and other harassment on the basis of sex, including harassment because of gender identity, sexual orientation, sex characteristics, sex stereotypes, and/or pregnancy and other conditions, that is:  

1. Quid pro quo harassment. An employee, agent or other person authorized by Durham Tech’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 harassment. 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 Durham Tech’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 Durham Tech’s Education Program or Activity;  
   2. The type, frequency, and duration of the conduct;  
   3. The Parties’ ages, roles within Durham Tech’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 Durham Tech’s Education Program or Activity.
3. Sexual Assault (as defined in the Clery Act) means any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent;
4. Dating Violence (as defined in the Violence Against Women Act (VAWA) Reauthorization of 2022 and the VAWA Amendments to the Clery Act) means any violence committed by a person:
   1. who is or has been in a social relationship of a romantic or intimate nature with the victim; and  
   2. where the existence of such a relationship shall be determined based on a consideration of the following factors: The length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship.
5. Domestic Violence means any felony or misdemeanor crimes committed by a person who:
   1. Is a current or former partner of the victim under the family or domestic violence laws of North Carolina, or a person similarly situated to a spouse of the victim; 
   2. Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; 
   3. Shared a child in common with the victim; or  
   4. Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of North Carolina; or
6. Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:  
   1. fear for the person’s safety or the safety of others; or 
   2. suffer substantial emotional distress.

Student means a person who has gained admission.

Supportive Measures means individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a Complainant or Respondent, not for punitive or disciplinary reasons, and without fee or charge to the Complainant or Respondent to:

1. Restore or preserve that Party’s access to Durham Tech’s Education Program or Activity, including measures that are designed to protect the safety of the Parties or Durham Tech’s educational environment; or 
2. Provide support during Durham Tech’s Grievance Procedure for sex discrimination or during the informal resolution process. 
    

Durham Tech uses Title IX training materials provided by SUNY, which are available for review.