Section 0240-06-01-.09 - INVESTIGATIONS OF FORMAL COMPLAINTS(1) ETSU will investigate, to the extent necessary or possible, the allegations in a formal complaint.(2) If the conduct alleged in a formal complaint would not constitute sexual harassment even if proved, did not occur in ETSU's education program or activity, or did not occur against a person while in the United States, ETSU will dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX; such a dismissal does not, however, preclude action under another provision of ETSU's codes of conduct or other policies.(3) ETSU may dismiss a formal complaint or any allegations therein, if at any time during the investigation a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein, the respondent is no longer enrolled or employed by ETSU; or specific circumstances prevent ETSU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.(4) If ETSU dismisses a formal complaint during the investigation phase, ETSU will promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.(5) ETSU may consolidate formal complaints as to allegations of sexual harassment against more than one (1) respondent, or by more than one (1) complainant against one (1) or more respondents, or by one (1) party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.(6) The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on ETSU and not on the parties.(7) ETSU will not access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and are made and maintained in connection with the provision of treatment to the party, unless ETSU obtains that party's voluntary, written consent to do so for a grievance process.(8) ETSU will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.(9) ETSU will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.(10) ETSU will provide the parties with the same opportunities to have others present during any interview or investigative process, including the opportunity to be accompanied to any related investigation meeting by the advisor of their choice, who may be, but is not required to be, an attorney.(11) ETSU will not limit the choice or presence of an advisor for either the complainant or respondent in any investigative meeting; however, ETSU may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.(12) ETSU will provide to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.(13) ETSU will provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which ETSU does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.(14) Prior to completion of the investigative report, ETSU will send to each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy.(15) ETSU will allow the parties ten (10) business days to submit a written response, which the investigator will consider prior to completion of the investigative report.(16) ETSU will create an investigative report that fairly summarizes relevant evidence.(17) At least ten (10) business days prior to a hearing or other time of determination regarding responsibility, ETSU will send the investigative report in electronic format or a hard copy to each party and the party's advisor, if any, for their review and written response to the investigative report.Tenn. Comp. R. & Regs. 0240-06-01-.09
Emergency rules filed August 14, 2020; effective through February 10, 2021. Emergency rules expired effective February 11, 2021, and the rules reverted to their previous statuses. New rules filed May 4, 2021; effective 8/2/2021.Authority: T.C.A. §§ 49-8-101(a)(2)(A), 49-8-203(a)(1)(D), and 49-8-203(a)(4).