SUNY Downstate Medical Center
Office of Diversity & Inclusion
Complaint Procedure Process
The State University of New York Downstate Medical Center ("SUNY Downstate" or "The University"), in its continuing effort to seek equity in education and employment and consistent with Federal and State anti-discrimination legislation, has adopted a complaint procedure for the prompt and equitable investigation and resolution of allegations of unlawful discrimination on the basis of race, color, national origin, religion, creed, age, gender, sexual orientation, disability, gender identity, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction. Harassment on the basis of the above categories is one form of unlawful discrimination.
Employees, who observe or become aware of sex discrimination, including sexual harassment and sexual violence, should report this information to the campus Title IX Coordinator. Conduct that may constitute harassment is described below (see Definitions and Prohibited Behavior). More detailed information may be obtained from the Office of Diversity and Inclusion (ODI).
Jurisdiction of the Office of Diversity and Inclusion
Complaints of discrimination should be made to the Assistant Vice President (AVP) of the Office of Diversity and Inclusion or designee. Complaints of sex discrimination and sexual violence should be made to the Title IX Coordinator. Complaints or concerns that are reported to a University administrator, manager, or supervisor concerning an act of discrimination or harassment or acts of discrimination or harassment that administrators, managers, or supervisors observe or become aware of shall be immediately referred to the Office of Diversity and Inclusion. Complaints may also be made directly to the Assistant Vice President and/or Title IX Coordinator by anyone who experiences, observes, or becomes aware of discrimination or harassment. ODI will also receive initial inquiries, reports, and requests for consultation. ODI will respond as appropriate in a timely manner.
SUNY Downstate is committed to providing a learning and working environment free from discrimination. SUNY Downstate, through the Office of Diversity and Inclusion, reserves the right to pursue any complaint of discrimination about which it becomes aware. Based on information received, the Assistant Vice President and/or Title IX Coordinator may exercise her/his discretion and initiate a complaint on behalf of the SUNY Downstate community, regardless of complainant cooperation or involvement.
In addition, the ODI may determine that a specific complaint of unlawful discrimination or harassment is of such a serious or potentially criminal nature that the investigative steps outlined in the process should be accelerated or eliminated. Such a circumstance will be communicated to the President (or his/her designee) and to the Department of Human Resources and/or the Office of Labor Relations for appropriate action, including the initiation of disciplinary action. If the Respondent is a student, the referral will be to the Dean of Students.
The Assistant Vice President, or in instances involving sex discrimination, the Title IX Coordinator, is available to assist in preparing the complaint. The Title IX Coordinator will ensure that complainants are aware of their Title IX rights and available resources on and off-campus, and the right, if any, to file a complaint with local law enforcement. SUNY Downstate will comply with law enforcement requests for cooperation and such cooperation may require the campus to temporarily suspend the fact-finding aspect of an investigation while the law enforcement agency is in the process of gathering evidence. The campus will resume its Title IX investigation as soon as it is notified by the law enforcement agency that it has completed the evidence gathering process.
SUNY Downstate will take steps to prevent discrimination and harassment, to prevent the recurrence of discrimination and harassment, and to remedy its discriminatory effects on the victim(s) and others, if appropriate. SUNY Downstate recognizes and accepts its responsibility in this regard and believes that the establishment of this internal, non-adversarial complaint process will benefit students, faculty, staff, and administration, permitting investigation and resolution of problems without resorting to the frequently expensive and time-consuming procedures of State and Federal enforcement agencies or courts. These measures are intended to balance the rights of those bringing complaints of discrimination, harassment, and retaliation (the "Complainant") with those against whom claims are brought (the "Respondent"). The Complainant is not required to pursue the SUNY Downstate internal procedure before filing a complaint with a State or Federal agency.
This procedure may be used by any SUNY Downstate student or employee, as well as by third parties who apply for employment with the University, when the respondent is a Downstate employee or student. Employee grievance procedures established through negotiated contracts, academic grievance review committees, student disciplinary grievance boards, and any other procedures defined by contract will continue to operate as before. This procedure does not in any way deprive a Complainant of the right to file with outside enforcement agencies, including but not limited to the New York State Division of Human Rights, the Equal Employment Opportunity Commission, the Office for Civil Rights of the United States Department of Education, and the Office of Federal Contract Compliance of the United States Department of Labor. Additionally, the Title IX Coordinator can provide additional information and resources to any complainant that may have been a victim of sexual harassment or sexual assault.
However, after filing with an outside enforcement agency, or upon the initiation of litigation, the complaint shall be referred to the campus Title IX Coordinator for investigation with the Office of General Counsel.
Employees. Employees of SUNY Downstate and third parties who apply for employment with the University, must file a written complaint with the Office of Diversity and Inclusion (ODI) within 45 calendar days following the alleged discriminatory act or the date on which the Complainant first knew or reasonably should have known of such act. All such complaints must be submitted on the forms provided by SUNY Downstate.
Students. Students must file a complaint within 45 calendar days following the alleged discriminatory act, or 45 calendar days after a final grade is received for the semester during which the discriminatory acts occurred, if that date is later. For alleged discriminatory acts in a spring semester, students will have 45 calendar days from the beginning of the following fall semester to file a complaint.
It is the Complainant's responsibility to be certain that any complaint is filed within the 45-day period.
If the Complainant brings a complaint not involving sex discrimination beyond the period in which the complaint may be addressed under these procedures, ODI may in its discretion, on a case-by-case basis, review the matter.
Should a complaint of sexual violence or sexual harassment be filed later than 45 days following the alleged act, the complainant will still be offered all appropriate and available services and resources for victims of sexual violence, including interim measures to protect the parties. In addition, the matter will be investigated and may be referred for appropriate employee or student disciplinary action.
As soon as reasonably possible after the date of filing of the complaint, the Title IX Coordinator will provide notice of the complaint to the respondent.
Anyone who participates in the procedure has the right to do so without fear of or actual retaliation. It will be made clear to all parties that retaliation against an employee or a student, or third parties who apply for employment with the University, who has filed a discrimination complaint, or against any witness or other participant in this process, will result in appropriate sanctions or disciplinary action as covered by SUNY Downstate policies or applicable collective bargaining agreements. These sanctions will be invoked for retaliation regardless of the merits of the original complaint.
Retaliation is an adverse action taken against an individual as a result of complaining about unlawful discrimination or harassment, exercising a legal right, and/or participating in a complaint investigation as a third party witness. Participants who experience retaliation should contact the Assistant Vice President and/or Title IX Coordinator.
To the extent practicable or allowable by law, all aspects of the complaint and investigation conducted in accordance with these procedures will be confidential. All affected parties shall cooperate fully in the investigation and shall maintain and preserve the confidentiality of the investigation.
No party, complainant or respondent shall employ audio or video taping devices during any portion of the procedures detailed below.
Procedures for Resolving Complaints
Complaint Consultation and Review
Any student or employee of SUNY Downstate, or any third party who applies for employment with the University, may consult with the Assistant Vice President and/or Title IX Coordinator regarding potential discrimination or harassment. ODI will assist the individual in understanding the nature of the incident, the complaint process, resources available to the individual, and other options to resolve the issue. The individual need not take any further action.
Investigation and Mediation of Informal Complaints
The individual may elect to have the matter resolved informally through mediation, if appropriate. If mediation is successful, ODI will send a written notice to that effect to both parties. The matter will then be closed. Should mediation be unsuccessful ODI will advise the complainant of her or his right to proceed with a formal complaint.
SUNY Downstate may take interim measures to protect the parties during the investigation process. Interim measures will not disproportionately impact the complainant. Interim measures involving employees in collective bargaining units should be determined in consultation with campus labor relations.
Complaints of sexual violence will not be resolved by using mediation, but instead must be referred immediately to the campus Title IX Coordinator.
At any time in this process, the Complainant may elect to file a formal complaint, as long as it is within the 45-day time limit. (See "Time Limits" above.)
Investigation of Formal Complaints
If there is a formal complaint filed, ODI will take all reasonable steps necessary to complete the investigation and file a written report within forty-five (45) calendar days after receipt of the complaint. When appropriate, ODI may extend this deadline for a reasonable period of time to conclude its investigation. Both the Complainant and the Respondent(s) shall be entitled to submit written statements or other relevant and material evidence. An informal investigation will only be used with the consent of both parties and only where its use is deemed appropriate by ODI (complaints of sexual violence will not be resolved by using mediation, but instead must be referred immediately to the Title IX Coordinator).
For reasons of confidentiality, anonymous complaints may be reviewed at ODI's discretion. However, ODI's will not forward finding, evidence, and/or documents to anonymous complainants.
The burden of proof in cases of sex discrimination is preponderance of the evidence.
Failure to Cooperate: If the Respondent refuses to cooperate and/or respond in an untimely manner, AVP may terminate any further processing of the complaint and refer the matter to the Office of Labor Relations. Failure to cooperate meaningfully in a review of a complaint of discrimination may be grounds for discipline.
Inaction by Complainant: If at any time during an investigation, a Complainant declines to cooperate with the ODI, or if ODI determines that the Complainant no longer wishes to pursue her/his complaint, the matter may be considered closed, with appropriate notification.
Neither Complainant or Respondent's attorney may participate or be present at any meeting convened by ODI. Respondents and Complainants are expected to communicate with the ODI directly, not through legal counsel or other intermediaries.
Resolution of Formal Complaint
In concluding a formal investigation of a complaint of discrimination or harassment, ODI's determination may be that:
- The complaint was not substantiated. If ODI determines that there is insufficient credible evidence to support the allegation of discrimination, the complaint shall be dismissed and SUNY Downstate shall take no further action.
- The complaint was substantiated. For Respondents who are students, ODI may determine that sufficient information exists to refer the matter to the Dean of Students for review and appropriate action under the student conduct code.
For Respondents who are employees (including those in collective bargaining units), ODI may determine that sufficient information exists to recommend disciplinary action. The matter may then be referred to the Office of Labor Relations for further investigation and appropriate action under the applicable bargaining agreement. Corrective action may include, but is not limited to: reprimand, mandatory counseling, written counseling, probation, suspension, termination of employment, or non-renewal of contract.
The decision of the Office of Diversity and Inclusion is the final decision of the University; there are no internal appeals. However, a complainant may elect to file a complaint with one or more State and Federal agencies.
Kevin Antoine, JD
Assistant Vice President
450 Clarkson Avenue/MSC 1220
Shaundelle Moore Goldsmith, JD
EEO Advisor & Title IX Coordinator
151 E 34th Street
Definitions and Prohibited Acts and Behaviors
Consent / Affirmative Consent – Affirmative consent is clear, unambiguous, knowing, and voluntary agreement between all participants to engage in sexual activity. Silence or lack of resistance cannot be interpreted as consent. When consent is withdrawn or cannot be given, sexual activity must stop. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
Harassment on the Basis of Protected Characteristic(s) other than Sex / Gender – harassment based on race, color, age, religion, national origin, disability, sexual orientation or other protected characteristics is oral, written, graphic or physical conduct relating to an individual's protected characteristics that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the educational institution's programs or activities.
Sex Discrimination – behaviors and actions that deny or limit a person's ability to benefit from, and/or fully participate in the educational programs or activities or employment opportunities because of a person's sex. This includes but is not limited to sexual harassment, sexual assault, and sexual violence by employees, students, or third parties. Employees should report sexual harassment that they observe or become aware of to the Title IX coordinator.
Sexual assault is defined as a physical sexual act or acts committed against a person's will and consent or when a person is incapable of giving active consent, incapable of appraising the nature of the conduct, or incapable of declining participation in, or communicating unwillingness to engage in, a sexual act or acts. Sexual assault is an extreme form of sexual harassment.* Sexual assault includes what is commonly known as "rape," whether forcible or non-forcible, "date rape" and "acquaintance rape." Nothing contained in this definition shall be construed to limit or, conflict with the sex offenses 'enumerated in Article 130 of the New York State Penal Law, which shall be the guiding reference in determining if alleged conduct is consistent with the definition of sexual assault.
Sexual Harassment in the Educational Setting – unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student denies or limits, on the basis of sex, the student's ability to participate in or to receive benefits, services, or opportunities in the educational institution's program.
Sexual Harassment in the Employment Setting – unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature when any of the following occurs:
- Submission to such conduct is made a term or condition of an individual's continued employment, promotion, or other condition of employment.
- Submission to or rejection of such conduct is used as a basis for employment decisions affecting an employee or job applicant.
- Such conduct is intended to interfere, or results in interference, with an employee's work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual Violence – physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent.
Preponderance of the Evidence – the standard of proof in sexual harassment and sexual assault cases, which asks whether it is "more likely than not" that the sexual harassment or sexual violence occurred. If the evidence presented meets this standard, then the accused should be found responsible.
Office of Diversity and Inclusion|
450 Clarkson Avenue, MSC 1220|
Brooklyn, NY 11203
Tel (718) 270-1738
Fax (718) 270-2276