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Employee Discrimination, Harassment or Retaliation Complaint Operating Procedure 420.01

Employee Discrimination, Harassment or Retaliation Complaint Operating Procedure 420.01
Johnson County Community College
Series: 400 Personnel
Section: Employee Complaints and Discipline

Cross-Reference: Employee Discrimination, Harassment or Retaliation Policy 420.00

Applicability: This Operating Procedure applies to complaints of prohibited conduct against an employee under the Employee Discrimination, Harassment or Retaliation Policy 420.00, except for the following circumstances:

  1. A complaint involving Sexual Harassment, as defined in the Sexual Harassment Policy 650.00, will be processed pursuant to the Sexual Harassment Complaints Operating Procedure 650.01.
  2. A complaint of prohibited conduct against a student will be processed as set forth in Student Discrimination, Harassment or Retaliation Complaint Operating Procedure 319.05.
  3. A complaint against an employee that is not based upon a protected class, as identified in Employee Discrimination, Harassment or Retaliation Policy 420.00, or retaliation based upon a complaint processed under 420.00, shall be processed in accordance with the Employee Complaint Policy 421.01.

Purpose: This Operating Procedure sets forth the process for reporting, investigating, and resolving applicable complaints.

Definitions:

“Complainant” means an individual who is alleged to be the victim of the prohibited conduct.

“Respondent” means an individual who has been reported to be the perpetrator of the prohibited conduct.

“Supervisor” is an employee of the College designated as a supervisor or division/branch administrator in accordance with the list of supervisors and division/branch administrators maintained by the Office of Human Resources.

“JCCC Ethics Report Line” is a College-implemented, confidential reporting system through a private third-party vendor.

“Preponderance of the Evidence” means the evidence shows that it is “more likely than not” that College policy was violated.

I. Grievance Process

A. Duty to Report

  1. Mandatory Report.  All Supervisors shall have a duty to report any prohibited conduct by or against an employee of which they become aware, as provided in this Operating Procedure.
  2. Permissive Report.  All other employees who have been subjected to prohibited conduct by an employee or have direct knowledge of the occurrence of such conduct are encouraged to first inform the Respondent that the behavior is unwelcome and should cease. If individual does not feel comfortable directly addressing the Respondent or if the prohibited conduct does not cease, such individual may report any prohibited conduct, as provided in this Operating Procedure.
B. Reporting Process

1. Where to Report. You are strongly urged to report any prohibited conduct you believe may have occurred to the following individuals designated for the purposes of this Operating Procedure, or by contacting a director over Human Resources (“Director”) if that individual is not listed below.

Complaints Against an Employee
Sean Burkett, Interim Director of Human Resources
Johnson County Community College
12345 College Blvd.
Overland Park, KS 66210
913-469-3690
sburkett@jccc.edu
Office of Human Resources, GEB 275		 Samantha Williams, Employee Relations Specialist
Johnson County Community College
12345 College Blvd.
Overland Park, KS 66210
913-469-3269
swilli77@jccc.edu 
Office of Human Resources, GEB 275

If you are a victim of a sexual misconduct or other crime, or someone you know may be the victim, immediate assistance can be obtained 24 hours a day, seven days a week, from:

  • Local Police
  • JCCC Police
  • Overland Park Regional Emergency Department
  • Olathe Medical Center Emergency Department

Employees interested in counseling and/or guidance may also contact the Benefits Department at 913-469-3877 to obtain information about the Employee Assistance Program.

Reports of Sexual Harassment, as defined in the Sexual Harassment Policy 650.00, should be made in accordance with the Sexual Harassment Complaints Operating Procedure 650.01.

Reports against the President and Office of Human Resources concerning prohibited conduct should be made directly to the Director of Audit and Advisory Services at 913-469-7633 in accordance with this Operating Procedure or through the JCCC Ethics Report Line.

Reports against a student concerning prohibited conduct should be made in accordance with the Student Discrimination, Harassment or Retaliation Complaint Operating Procedure 319.05.

Reports against a third party who is not a student or employee of the College concerning prohibited conduct should be made to: Keeping our People Safe-KOPS Watch report line at 1-888-258-3230, or by contacting any of the College’s Title IX Coordinators. Do not use KOPS Watch reporting to report events presenting an immediate threat to life or property. In those instances, contact:

Emergency: Dial 911 or ext. 4111 for JCCC Police Department
Olathe Police Department: 913-971-7500
Overland Park Police Department: 913-895-6300
Law Enforcement in the municipality where conduct occurred or where you reside

2. Form of Report. The initial report may be either written or verbal. If a verbal report is made to a Supervisor, the Supervisor shall promptly document and forward the report and may also inform the Complainant that the Complainant’s own written report can be submitted directly to the Director, Employee Relations Manager (“Manager”), Audit and Advisory Services (for reports against the President of the Office of Human Resources) or JCCC Ethics Report Line, as appropriate. To the extent possible, a report should include a specific description of the conduct, the party or parties involved, the location of the alleged incident, and the date(s) and circumstances under which the alleged conduct occurred. The written report should be dated and signed to acknowledge completeness and accuracy.

3. JCCC Ethics Report Line. Once a report of prohibited conduct is received by the Office of Human Resources or Audit and Advisory Services, it will be entered into the JCCC Ethics Report System in accordance with the rules established for such reporting.  Any complaint may also be submitted directly through JCCC Ethics Report Line by the individual filing the report.

The JCCC Ethics Report Line permits individuals to report information related to JCCC through the privately-run call center or web-based reporting system. The JCCC Ethics Report Line serves as an alternative reporting channel for complaints under this Operating Procedure. A report of prohibited conduct may be submitted anonymously through the JCCC Ethics Report Line. Reports submitted through the JCCC Ethics Report Line will be processed as provided in this Operating Procedure. In the event that the complaint provides information insufficient to conduct an investigation, the College will take reasonable steps to solicit additional information from the person reporting the issue through the JCCC Ethics Report Line.

4. False or Malicious Reports. It shall be considered a violation of College policy for any individual to knowingly file a false or malicious complaint of prohibited conduct.

II. Jurisdiction; Timing; Criminal Proceedings

A. Jurisdiction

The College will promptly respond under this Operating Procedure when it has actual knowledge of alleged prohibited conduct allegedly caused by an employee of the College (1) if such employee is employed by the College at the time of the alleged prohibited conduct (including conduct that is alleged to have occurred during any leave or academic recess, provided that there is an expectation of continued employment at the College) and (2) where the alleged prohibited conduct allegedly occurred in or impacts an education program or activity of the College.

B. Timing and Availability of Procedures

Individuals are encouraged to report alleged prohibited conduct immediately in order to maximize the College’s ability to obtain evidence, and conduct a thorough, impartial and reliable investigation.  Failure to promptly report alleged prohibited conduct may result in the loss of relevant evidence and witness testimony and may impair the College’s ability to enforce this Operating Procedure.

Employees and students who make reports or complaints of prohibited conduct, or participate in any investigation process, whether as parties to the proceedings or as witnesses, are expected to provide truthful testimony in accordance with the College’s policies and operating procedures.

Due dates under this Operating Procedure shall be calculated based upon calendar days. If the due date specified falls on a weekend or holiday, the next business day will be the due date for the action. Either party may request a reasonable extension of time for any of the deadlines set forth in this Operating Procedure. The College’s intention is to provide for the prompt reporting and investigation of claims of prohibited conduct. These deadlines are not meant to penalize. Therefore, failure by the College to comply with the deadlines set forth herein will not invalidate a complaint, investigation or disciplinary action.

C. Effect of Criminal Proceedings

Because prohibited conduct may constitute both a violation of College policy and criminal activity, the College encourages employees to report alleged criminal prohibited conduct promptly to local law enforcement agencies. Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of College policy, criminal investigations or reports are not determinative of whether criminal prohibited conduct, for purposes of this Operating Procedure, has occurred. Conduct may constitute prohibited conduct under College policy and this Operating Procedure even if law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute.

The filing of a complaint of prohibited conduct under this Operating Procedure is independent of any criminal investigation or proceeding, and (except that the College’s Investigation may be delayed temporarily while the criminal investigators are gathering evidence) the College will not wait for the conclusion of any criminal investigation or proceedings to process a complaint under this Operating Procedure. Nothing in this Operating Procedure is intended to limit the authority of JCCC to take appropriate disciplinary action against any individual who violates College rules or policies.

III. The Process: Initial Steps

A. Intake Meeting with Complainant 

Upon receipt of a report of any allegation of prohibited conduct, the Director, Manager, Director of Audit and Advisory Services (as appropriate) or a designee (each referred to individually as the “Officer”) will first schedule an individual intake meeting with the Complainant in order to provide to the Complainant a general understanding of Employee Discrimination, Harassment, or Retaliation Policy 420.00 and Operating Procedure 420.01, as well as the option and process to file a formal complaint; to identify supportive measures available to the Complainant including, but not limited to, counseling, written rights and options document, altering schedules, working with supervisor to adjust work load/objectives or any other action as deemed appropriate by the Officer.  The Officer will also explain that the Complainant may elect to not file a formal complaint or later withdraw a formal complaint, and in such case, the Officer will retain the discretion to address alleged conduct informally and non-punitively, or to proceed with investigation and resolution through a formal complaint.

B. Formal Complaint
  1. Form of Complaint. The filing of a formal complaint of prohibited conduct initiates the grievance process outlined in this Operating Procedure. A formal complaint may be filed by the Complainant in person, by mail or by email and must include the Complainant’s physical or digital signature.  Alternatively, a formal complaint may be initiated by the Officer for the purposes of investigating and resolving alleged prohibited conduct, however, the Officer will not become a party to the grievance process.  The filer of a formal complaint may withdraw the formal complaint at any step in this process.
  2. Notice. Upon the filing of a formal complaint, the Officer will send written notice of the formal complaint to both parties, which will include the names of the Complainant and Respondent, if known; the date, location and nature of the alleged prohibited conduct; statements that the Respondent is presumed not responsible and that determination of responsibility will be made at the conclusion of a grievance process; that knowingly making false statements or submitting false information during the grievance process is a violation of College Policy; and that additional notice will be provided if any additional allegations arise during the process.
  3. Intake Meeting with Respondent. The Officer will schedule an individual intake meeting with the Respondent in order to provide the Respondent a general understanding of the Employee Discrimination, Harassment or Retaliation Policy 420.00 and Operating Procedure 420.01 and the complaint and resolution process; to address and provide supportive measures equally available to the Respondent including, but not limited to, counseling, written rights and options document, altering schedules, working with supervisor to adjust work load/objectives or any other action as deemed appropriate by the Officer; and to explain at a high level how the allegation of prohibited conduct could potentially be addressed at both the College level and, if applicable, as a criminal matter with local law enforcement.

IV. Investigation

Following the filing of a formal complaint, the Officer will appoint a trained individual to investigate the alleged prohibited conduct (“Investigator”).  This Investigator will interview witnesses, summarize information learned from those involved, collect related documents and submit summary findings to the Officer that are likely to be helpful in determining whether dismissal of the complaint is appropriate (the “Investigation”).

A. Investigator. The Investigator is a neutral fact-finder, who during the course of the Investigation, typically conducts interviews with the Complainant, the Respondent and third party witnesses; visits and takes photographs at relevant sites; and, where applicable, coordinates with law enforcement agencies to collect and preserve relevant documentation and other evidence.

B. Investigation Procedures

  1. Submissions.The parties may provide the Investigator with a list of witnesses they propose to be interviewed, a list of relevant documents to be obtained, and a description of any other information they believe to be relevant to the Investigation on or before a date set by the Investigator. In the absence of good cause, as determined by the Investigator’s sole discretion, the parties may not introduce witnesses, documents or other information after the deadline set by the Investigator.

    If the parties agree in writing that there are no facts in dispute, the complaint shall be forwarded to the Officer to process the Final Outcome and any Sanctions, as appropriate, pursuant to this Operating Procedure.
  2. Investigation. During the ongoing Investigation, each party may submit a written statement to the Investigator, with any documentation deemed relevant, or if the Investigator determines that unresolved issues exist that would be clarified by the submission of additional information, the Investigator may request such additional information be submitted. The Respondent has the option not to provide a written statement; however, the exercise of this option will not preclude the Investigation from proceeding.
  3. Investigative Report. The Investigator shall summarize the factual findings in a report, typically within sixty (60) days from receipt of the complaint, unless additional time is needed in which case the parties will be notified of the extension, and then provide the evidence and investigative report to the Officer upon the conclusion of the Investigation.
C. Third Parties 

Third parties may assist each party in the Investigation process, however, third parties may not participate other than to support and confer privately with the individual the third party is intended to support, unless they are witnesses in the Investigation.

V. Grounds for Dismissal

At any time during the grievance process under this Operating Procedure, the following Dismissal provisions apply.

A. Mandatory Dismissal 

If at any time, the Officer determines that such alleged conduct, if proved, would be Sexual Harassment, as defined by the Sexual Harassment Policy 650.00, the Officer must dismiss the complaint under this Operating Procedure but shall transfer it to be processed under the Sexual Harassment Complaint Operating Procedure 650.01.

B. Permissive Dismissal

The Officer may dismiss the report, if (1) even if proved, the alleged behavior would not constitute prohibited conduct; or (2) the alleged behavior did not occur in the College’s work environment; (3) Complainant notifies the Officer in writing that the Complainant would like to withdraw the report or any allegations therein; (4) Respondent is no longer employed by or enrolled in the College; or (5) specific circumstances prevent the College from gathering sufficient evidence to reach a determination as to the formal complaint or allegations therein

C. Dismissal Procedures

Upon dismissal, the Officer shall promptly send written notice of dismissal and the reasons for the dismissal simultaneously to the parties. 

VI. Resolution

JCCC has established both formal and informal procedures to resolve prohibited conduct complaints.  The Officer must determine if the Complainant wishes to proceed through an Informal or Formal Resolution process or to withdraw the complaint, which may result in no resolution of process of any kind.  Alternatively, if a Complainant becomes unavailable or withdraws a formal complaint, the Officer may pursue resolution as deemed appropriate and in the best interest of the parties pursuant to this Operating Procedure.

Under either resolution process, all involved parties have a duty to cooperate with the review or investigation, and they are not to knowingly impede, obstruct or delay the investigation. Both the Complainant and the Respondent have the responsibility to provide all relevant information and facts to the matter under review.

A. Informal Resolution

A party may request a less formal proceeding, known as Informal Resolution.  If Informal Resolution is selected, the Officer may involve the Respondent’s Supervisor, if appropriate.

  1. Purpose. Informal Resolution provides an opportunity for the Complainant and the Respondent to seek resolution informally and will provide an opportunity for Complainant and Respondent to communicate their feelings and perceptions regarding the incident, the impact of the incident, and their wishes and expectations for the future.
  2. Informal Resolution Process. If the parties agree to Informal Resolution, the Officer and/or Supervisor will neutrally facilitate communication with the parties (either separately or together, as appropriate) to reach a mutually agreeable resolution, which will be memorialized in an Informal Resolution agreement, and the complaint will be resolved. The Informal Resolution agreement will generally be reached within ninety (90) days from initiation of the Informal Resolution process. The Officer and/or Supervisor shall follow up with the Complainant and Respondent at reasonable times to determine the status of the resolution. The Supervisor will report the results of these follow-up inquiries to Human Resources, if appropriate. The Officer will determine if Formal Resolution is warranted by the circumstances or required by law, or if a mutually agreeable resolution between the Complainant and the Respondent cannot be reached, the complaint will proceed through Formal Resolution.
  3. Third Parties. The Complainant and the Respondent each may bring a third party for support as the party participates in the Informal Resolution process; however, third parties may not participate other than to support and confer privately with the individual the third party is intended to support.
  4. Privacy of Informal Resolution. In order to promote honest, direct communication, the parties will be encouraged to keep information disclosed during Informal Resolution private while the Informal Resolution is pending, except where disclosure may be required by law or authorized in connection with duties on behalf of the College.
  5. Conversion to Formal Resolution. At any time prior to the conclusion of the Informal Resolution, the Officer elect to end such proceedings and initiate Formal Resolution instead. Alternatively, the Complainant or Respondent also may request that the Officer, in the Officer’s discretion, convert the proceedings to the Formal Resolution process.
B. Formal Resolution

Following the filing of a formal complaint, if not dismissed or resolved by some other process, the complaint will be resolved through Formal Resolution.

  1. Standard of Proof. Evidence of alleged prohibited conduct will be evaluated pursuant to the Final Outcome process under the “Preponderance of the Evidence” standard. In the context of a review of the investigative report, the Respondent will only be found to be responsible for the alleged prohibited conduct if the Officer concludes that such prohibited conduct more likely than not occurred based upon careful review of all information presented.
  2. Conversion to Informal Resolution.At any time during the Formal Resolution process, the Complainant or Respondent may request to convert to Informal Resolution, by making such request to the Officer prior to a Final Outcome.
  3. Final Outcome. The Officer shall review the investigative report and supporting evidence and within no more than ten (10) days following the receipt of the investigative report, make a determination and prepare a Final Outcome Letter. The Final Outcome Letter shall be provided to both parties and must contain (1) a summary of the findings of fact; (2) conclusion on whether the conduct occurred; (3) rationale for conclusion.
  4. Sanctions. Not every complaint will warrant disciplinary or other action. However, if the investigation reveals that prohibited conduct has occurred, the Respondent will be subject to discipline in accordance with Suspension, Demotion and Termination Policy 415.08. In determining an appropriate disciplinary action, any record of past violations of College policies and procedures, as well as the nature and severity of such past violation(s) may be taken into consideration. The purpose of the discipline will be to: (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation on the Complainant and the College community. Any discipline imposed by the Officer will be explained or supported in the Final Outcome Letter.

VII. Appeals

A. Grounds for Appeal

Either party may petition to appeal the formal complaint or the dismissal of a formal complaint only on the following grounds: (1) procedural irregularity that affected the outcome of the matter; (2) new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and (3) the Officer or Investigator had a conflict of interest or bias for or against Complainant or Respondent generally or the individual Complainant or Respondent that affected the outcome of the matter.

B. Appeals Process

Where grounds for appeal exist, the appealing party must submit an appeal to the Office of the Vice President of Human Resources in writing within ten (10) business days of the date the Final Outcome Letter is delivered to the parties. The notice of appeal must describe in detail the grounds for appeal. Either the Vice President or designee (the “Reviewing Officer”) will be responsible for overseeing the review and making the final determination. Upon receipt of a valid appeal request, the Reviewing Officer will accept such appeal request, will put the non-appealing party on notice allowing the non-appealing party to submit a response directly related to the appeal notice and will review the notice of appeal and any additional documentation with respect to the procedural appeal prior to determining whether a procedure was appropriately followed. If the Reviewing Officer determines that the alleged basis for appeal affected the outcome, then the Reviewing Officer will put the parties on notice of such determination, will allow for such basis to be corrected as appropriate (which may include allowing for additional witness statements and/or documentation in certain circumstances). The Reviewing Officer will then review the entire set of documents created and collected in the Investigation and the Final Outcome Letter before making a determination regarding the original complaint. The Reviewing Officer will make an initial ruling with respect to the questioned procedure within fourteen (14) business days of the date the appeal is submitted. If additional time is needed to complete this review, the Reviewing Officer shall notify the Complainant and the Respondent that the review has been delayed and indicate the reasons for the delay. The Reviewing Officer, if not the Vice President, shall provide the initial ruling to the Vice President with the Reviewing Officer’s factual findings, and within thirty (30) days of the date of the appeal, the Vice President will make a final ruling/determination whether the Final Outcome is supported by the evidence and if additional action is necessary. Decisions by the Vice President are final and not subject to appeal by either party.

If the report was against the President, the request for review shall be submitted to Audit and Advisory Services, instead of the Office of the Vice President of Human Resources. Upon receipt of the request for review, Audit and Advisory Services shall appoint a Reviewing Officer. The Reviewing Officer will follow the review procedures in this Subsection B Appeals Process and submit the initial ruling to Audit and Advisory Services for communication to the Board of Trustees. The Board of Trustees will determine whether the Final Outcome is supported by the evidence and if additional action is necessary. The decision of the Board of Trustees will be final.

Disciplinary actions resulting from this Operating Procedure may be appealed by the employee in accordance with applicable College policies or the Master Agreement, should it contain applicable provisions.

VIII. Miscellaneous

A. College’s Counsel

The Officer may seek advice from the College’s legal counsel throughout the process on questions of law and procedure. The College’s legal counsel will not make factual determinations under this Operating Procedure.

B. Privacy 

Participants in the complaint resolution process should respect the matter as confidential. All information revealed and all discussions held shall be considered as confidential as reasonably possible within legal requirements and organizational responsibilities, and within limits allowing for the review to occur.  The College cannot guarantee confidentiality of the information received and the privacy of the individuals involved due to potential legal obligations to report, investigate and take appropriate action regarding such matters.

C. Policy Enforcement Training

JCCC trains all College personnel selected to assist in the resolution process. Any Investigator or Officer selected from outside the College shall have demonstrated expertise in conducting such investigations.

Signature on File in Policy Office
President

Date of Adoption: 05/15/1997
Revised: 03/02/2000, 07/09/2002, 03/15/2007, 05/08/2009, 05/14/2015, 04/20/2017, 10/09/2018, 07/16/2020 (effective 08/14/2020), 07/14/2022