Wash. Admin. Code § 132U-300-020 - Complaint procedure - Discrimination and/or harassment/intimidation

(1) Purpose

(a) Those employees of Whatcom Community College who believe that they have been harassed/intimidated and/or discriminated against in employment or the employment application process, or any applicants for admission or students/members of the public who believe that they have been harassed/intimidated by or discriminated against by an employee or a student of the Whatcom Community College, are encouraged to report that belief to Whatcom Community College under this procedure's complaint process which follows.

(2) Definitions.

(a) Designated officer. Designated officer means an individual who is primarily responsible for conducting an initial inquiry, determining whether to proceed with an investigation under this procedure, and investigating or coordinating the investigation of reports and complaints of discrimination/harassment in accordance with this procedure.

(i) The human resources director is the designated officer for all issues except as follows: a) Student-to-student complaints, for which the vice-president for educational services is the designated officer; b) complaints against the human resources director for which the president is the designated officer.

(ii) A report/complaint against the president of the college shall be filed with the chair of the board of trustees. However, complaints against a president shall be processed by the college if the president's role in the alleged incident was limited to a decision on a recommendation made by another administrator, such as tenure, promotion or nonrenewal, and the president had no other substantial involvement in the matter.

(b) Decision maker. Decision maker means a high level administrator who reviews the investigative reports, to make findings whether board policy (132U-300-10.2.3. [WAC 132U-300-010 ]) has been violated based upon the investigation, and to determine the appropriate action for the institution to take based upon the findings.

(i) The appropriate vice-president with whom the complainant jurisdiction is the decision maker.

(ii) The president is the decision maker when the accused is an administrator.

(iii) The chair of board of trustees is the decision maker if the accused is the president.

(3) Complaint process.

(a) Incident notification form: Whatcom Community College has developed an Incident Notification Form on which any person may report complaints of discrimination and or harassment/intimidation, regardless of the complaint's basis. The form which includes directions on how to complete and route it properly is widely available and can be readily obtained from the human resources director. The form also identifies the limits of confidentiality and the Whatcom Community College's nonretaliation policy. Any supervisor or administrator is authorized to accept and forward the form, or it may be submitted directly to the human resources director for all issues except student-to-student complaints, which shall be forwarded to the vice-president for educational services.

(b) Filing a complaint/officers designated to receive complaints: Any employee/student or member of the public who believes he/she has been subject to harassment/intimidation and/or discrimination has the right to file a complaint. This complaint should be filed in a timely manner, but no later than one hundred eighty calendar days from the most recent incident of the alleged behavior or action. Any supervisor or administrator is authorized to accept or take a complaint. If the complainant does not feel comfortable with filing a written complaint, the complaint may be verbally made, and the supervisor/administrator the supervisor/administrator will then document the verbal complaint on the Incident Notification Form which the complainant shall sign. If the employee or student believes he/she is being harassed or discriminated against by a supervisor, administrator or employee, he/she should notify the human resources director directly. All complaints, regardless of the perceived merit or basis, are to be forwarded for review and processing, without exception, directly to the human resources director for all issues except student-to-student complaints, which shall be forwarded to the vice-president for educational services. In the event that the human resources director's conduct is the subject of the complaint, the president or his/her designee shall be the designated officer to receive such complaint.

(c) Complaint consideration: Although isolated incidents of harassment/intimidation and/or discrimination may not violate federal or state law, such incidents may nevertheless create a knowing and willful course of conduct which seriously alarms, annoys, harasses or is detrimental to that person or the work environment, serves no legitimate or lawful purpose, or is in direct violation of board values or the college's Affirmation of Inclusion (WCC Policy 1023) regarding mutual respect. Such complaints will be taken seriously and considered under this procedure.

(d) Addressing complaints: The administration of the college has an affirmative duty to take timely and appropriate action to stop behavior, conduct investigations and take appropriate action to prevent recurring misconduct. The human resources director, as the designated officer, is authorized to consider complaints of harassment and discrimination and to assess and/or investigate them for all of Whatcom Community College, with the exception of student-to-student complaints, which are under the jurisdiction of the vice-president for educational services, or his/her designee. All complaints, regardless of the perceived merit or basis, are to be forwarded to the appropriate office for review and processing, without exception. The designated officer shall determine whether the report/complaint is one which should be mediated or processed through another designated officer; if appropriate, the designated officer shall direct the complainant to that area as soon as possible.

(e) Assessment: The designated officer will, within thirty working days of receipt of the Incident Notification Form, (a) assess the written complaint; (b) determine the appropriate process necessary to ensure all relevant evidence is obtained and all critical elements are addressed; and (c) notify the appropriate vice-president with whom the complainant jurisdiction resides when the accused is a faculty or classified staff; the president when the accused is an administrator; and the chair of board of trustees if the accused is the president.

(i) This normally begins with an initial interview with the complainant. The goal is to obtain sufficient information to determine the next steps, which may include, but is not limited to obtaining clarification, providing mediation and/or consultation services, making referrals for mediation and/or consultation services, and/or initiating a formal fact-finding investigation.

(ii) If a formal investigation is undertaken, the complainant and the accused will be alerted to the existence of a formal complaint and that an investigation of the complaint is underway.

(iii) This formal investigation may take up to sixty calendar days after the receipt of the Incident Notification Form, unless extended by mutual agreement in writing between the complainant and the designated officer.

(iv) Under appropriate circumstances, the administration may, in consultation with system legal counsel and labor relations committee, reassign or place an employee on administrative leave at any point in time during the report/complaint/investigation process. In determining whether to place an employee on administrative leave or reassignment, consideration shall be given to the nature of the alleged behavior, the relationships between the parties, the context in which the alleged incidents occurred and other relevant factors. Any action taken must be consistent with the applicable collective bargaining agreements.

(v) Employees, as a condition of employment, are required to be truthful and to fully cooperate in the investigation process.

(f) Other complaints: Conduct covered by this policy and procedure are those discriminatory and/or harassment/intimidation actions that occur as delineated in WAC 132U-300-010, 2.3 [WAC 132U-300-010 ]. Complaints alleging conduct not covered by this policy and procedure will be remanded to the appropriate vice-president/administrative officer for consideration and investigation as a performance-based issue.

(i) Harassment/intimidation and/or discrimination allegations based upon union activities are not included in this procedure, but covered by the various collective bargaining agreements between the board of trustees and its recognized faculty and employee representatives.

(g) Records: Copies of all complaints of harassment/intimidation and/or discrimination, and records related to a subsequent formal investigation conducted pursuant to that complaint, if any, shall be maintained confidentially to the extent allowed by law for an indeterminate period of time in the human resources office.

(h) Confidentiality and nonretaliation.

(i) Confidentiality: To the extent possible, proceedings will be conducted in a discreet and sensitive manner. Anonymity and complete confidentiality cannot be guaranteed once a complaint is made or unlawful behavior is alleged. Files pertaining to the complaints will be maintained in confidence to the fullest extent of the law. Whatcom Community College cannot guarantee complete confidentiality.

(ii) Nonretaliation: Retaliation by, for or against any participant (accused, accuser or witness) is expressly prohibited. Retaliatory action of any kind taken against individuals as a result of seeking redress under the applicable procedures or serving as a witness in a subsequent investigation dealing with harassment/intimidation and/or discrimination is prohibited. Any person who thinks he/she has been the victim of retaliation should contact the human resources director immediately.

(i) Rights of accused--Notice of complaint: If a formal investigation is undertaken, the accused will be alerted to the existence of a formal complaint and that an investigation of the complaint is underway. During the investigative process, the accused will be informed of his/her right to representation during any investigatory meeting.

(j) Findings report: Within sixty calendar days of the commencement of a formal investigation, to the extent appropriate, a findings report will be submitted to the appropriate vice-president with whom the complainant jurisdiction resides and the president. This findings report will include the complaint and a synopsis of the investigation. The reporter is not precluded from providing specific recommendations in the findings report as to disciplinary actions or other actions to be done (i.e. training for everyone in a department where sexual jokes have gotten out of hand, etc.). The complainant and the accused will be informed of the results of the investigation in summary form.

(k) Corrective action: The decision maker (the appropriate vice-president with whom the complainant jurisdiction resides when the accused is a faculty or classified staff, the president when the accused is an administrator, or the chair of board of trustees if the accused is the president), will take appropriate corrective and/or disciplinary action in situations where it is proven or is reasonable to believe that harassment/intimidation and/or discrimination took place. Any action taken will follow the due process provisions of applicable contracts or state law and regulations and will be reasonably calculated to end harassing/intimidation and/or discriminatory behavior and correct inappropriate behavior.

(4) Appeal process.

(a) Any corrective and/or disciplinary action in situations where it is proven or is reasonable to believe that harassment/intimidation and/or discrimination took place on any level, except decisions by the board of trustees, may be appealed in writing to the president within fifteen working days of the corrective and/or disciplinary action by either the complainant or the accused. The appeal must state specific reasons why the complainant or accused believes the decision was improper. Within fifteen working days of the appeal, the president shall:

(i) Take actions recommended by the decision maker (vice-president);

(ii) Reject the recommendations;

(iii) Modify the recommendations; or

(iv) Remand the recommendations to the decision maker (vice-president) for further consideration; and

(v) Report in writing to the complainant, accused and vice-president

(b) The decision of the chair of the board of trustees as to any complaint against the president may be reviewed by filing a complaint with the appropriate tribunal listed in section (5) noncollege options, provided all time periods applicable to the tribunal are met.

(c) The actions of the president or, if applicable, the chair of the board of trustees, shall constitute final Whatcom Community College disposition of the matter. Upon action of the president, the complainant and accused shall have exhausted their administrative remedies within the college.

(d) However, in the event disciplinary action is undertaken against faculty member, the appeal process will be conducted in accordance with the standing faculty negotiated agreement.

(5) Noncollege options.

(a) At any point during these proceedings, the complainant may choose to file with the Washington state human rights commission, the Equal Opportunity Commission, and/or the U.S. Department of Education, Title IX.

(i) For anyone (employees, students, public): The Washington State Human Rights Commission, 711 S. Capitol Way, Suite 402, P.O. Box 42490, Olympia, WA 98504-2409; (360) 753-6770 or 1-800-233-3247; TTY 1-800-300-7525; web site: www.hum.wa.gov

(ii) For employees: The United States Equal Opportunity Commission, Federal Office Building, 909 First Avenue, Suite 400, Seattle, WA 98104-1061; (206) 220-6883 or 1-800-669-4000; TTY 1-800-669-6820; web site: www.eeoc.gov/seattle

(iii) For students: Office for Civil Rights, U.S. Department of Education, 915 2nd Avenue, Room 3310, Seattle, Washington 98174-1000; (206) 220-7900; TTY (206) 220-7907; web site: www.edu.gov

Notes

Wash. Admin. Code § 132U-300-020

Repealed by WSR 14-11-029, filed 5/13/14, effective 6/13/2014

Statutory Authority: RCW 28B.50.130, 28B.50.140, and chapter 49.60 RCW. 07-19-038, § 132U-300-020, filed 9/13/07, effective 10/14/07. Statutory Authority: RCW 28B.50.130 and 28B.50.140. 88-15-005 (Order 88-03), § 132U-300-020, filed 7/8/88.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules, and deems ineffectual changes not filed by the agency in this manner. The bracketed material in the above section does not appear to conform to the statutory requirement.