Policy 703 - Title IX and N.Y. Education Law Article 129-B Sexual Misconduct Policy and Procedures

Section: Employee Relations
Policy Number: 703
Responsible Office: Public Safety and Equal Opportunity and Compliance
Responsible Official: Director of Equal Opportunity, Compliance, and Title IX Coordinator
Effective Date: 6/27/16
Revised: 8/25/16; 8/1/17; 11/1/17; 3/13/18; 8/14/20

Adapted from and replaces former policy #703 Sexual Misconduct Policy and Procedures

Table of Contents

Appendices

I. Policy Statement

This Sexual Misconduct Policy and Procedures (“Policy”) is enacted pursuant to Title IX of the Education Amendments of 1972, the Final Rule titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” and published in the Federal Register on May 19, 2020 (collectively, “Title IX”); New York Education Law Article 129-B (“N.Y. 129-B”); Title VII of the Civil Rights Act of 1964; the New York State Human Rights Law; the New York City Administrative Code; and all applicable laws, rules, and regulations. 

This Policy applies to Sexual Misconduct that allegedly occurs on or after August 14, 2020.  Sexual Misconduct that allegedly occurs on or before August 13, 2020 shall be governed by the prior version of this Policy, which is published here.

Inquiries concerning this Policy and the laws referenced in this Policy may be referred to:

Keaton Wong
Director of Equal Opportunity, Compliance and Title IX Coordinator
St. John’s University
Office of Human Resources, University Center Suite C
8000 Utopia Parkway
Queens, NY 11439
Phone: 718-990-2660
[email protected] or [email protected]

Jackie Lochrie
Associate Dean for Student Services and Deputy Title IX Coordinator
St. John’s University
Student Affairs, Peter J. Tobin College of Business, Garden Level-Judiciary Suite-17C
8000 Utopia Parkway
Queens, NY 11439
Phone: 718-990-6568
[email protected]

Kathleen F. Meehan
Senior Deputy Athletics Director/Senior Women’s Administrator and Deputy Title IX Coordinator
St. John’s University
Athletic Department
Lou Carnesecca Arena, Room 157
8000 Utopia Parkway
Queens, NY 11439
Phone: 718-990-6173
[email protected]

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II. Scope of the Policy

This Policy applies to all members of the University Community regardless of their sex, race, national origin, disability, sexual orientation, gender identity and gender expression, or other status protected under federal, state or local law.  In event of a conflict between this Policy and an applicable law(s), the law(s) will control.

Alleged conduct that does not fall within the scope of Title IX and/or N.Y. 129-B may still violate other laws and/or University rules, regulations, and/or policies.  The University reserves the right to determine at all stages of a matter which laws and/or University rules, regulations, and/or policies, if any, apply.  Conduct that falls within the scope of Title IX and/or N.Y. 129-B may also violate the University’s Student Code of Conduct, and in such instances the University may initiate a separate proceeding to adjudicate such alleged violations. 

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III. Policy Definitions

Affirmative Consent (referred to herein as “Consent”) is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance, in and of itself, does not demonstrate Consent.  The definition of Consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression. 

The following principles provide guidance on the notion of Consent:

  • Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
  • Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  • Consent may be initially given but withdrawn at any time.
  • Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity.  Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent.  Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent. 
  • Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
  • When Consent is withdrawn or can no longer be given, sexual activity must stop.

Bystander is a person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of University rules or policies.

Complainant is the individual who is alleged to be the victim of conduct that could constitute Sexual Misconduct under this Policy.

Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant, and where the existence of such of a relationship shall be determined based on a consideration of the length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship.

Domestic Violence includes felony or misdemeanor crimes of violence committed by (i) a current or former spouse or intimate partner of the Complainant, (ii) a person with whom the Complainant shares a child in common, (iii) a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner, (iv) a person similarly situated to a spouse of the Complainant under applicable domestic or family violence laws, or (v) any other person against an adult or youth Complainant who is protected from that person's acts under applicable domestic or family violence laws.

Education Program or Activity includes locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which the Sexual Misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University.

Formal Complaint is a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Misconduct against a Respondent and requesting that the University investigate the allegation of Sexual Misconduct.

Preponderanceof the Evidence is the burden of proof applicable to proceedings brought pursuant to this Policy. A determination based on the preponderance of the evidence is a determination based on facts that are more likely true than not.

Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Misconduct.

Retaliation is an action to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, N.Y. 129-B, and/or any applicable law, rule, regulation and/or policy, or because the individual has made a complaint of Sexual Misconduct or participated in an investigation or proceeding related to alleged Sexual Misconduct.

Sexual Activity without Consent is any conduct or act of a sexual nature perpetrated against an individual without their Consent, as set forth in N.Y. 129-B.

Sexual Assault is any offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation, which includes:

  • Rape:  The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the Consent of the Complainant.
  • Fondling:  The touching of the private body parts of the Complainant for the purpose of sexual gratification, without the Consent of the Complainant, including instances where the Complainant is incapable of giving Consent because of their age or because of their temporary or permanent mental incapacity.
  • Incest:  Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory rape:  Sexual intercourse with a person who is under the statutory age of Consent.

Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following: 

  1. An employee conditions the provision of an aid, benefit, or service of the University on the Complainant’s participation in unwelcome sexual conduct.
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity.  In evaluating severity, pervasiveness, and offensiveness, the University will consider the totality of known circumstances, including, but not limited to:
    • The frequency, nature and severity of the conduct;
    • Whether the conduct was an isolated incident or repeated;
    • Whether the conduct was physically threatening;
    • The effect of the conduct on the Complainant’s mental or emotional state;
    • Whether the conduct was directed at more than one person;
    • The relationship of the individuals involved in the conduct;
    • Whether the conduct arose in the context of other discriminatory conduct;
    • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities; and
    • Whether the conduct implicates concerns related to academic freedom or protected speech.

Sexual Misconduct includes:

  • Dating Violence, as defined in this Policy;
  • Domestic Violence, as defined in this Policy;
  • Sexual Activity without Consent, as defined in this Policy and N.Y. 129-B;
  • Sexual Assault, as defined in this Policy;
  • Sexual Harassment, as defined in this Policy; and
  • Stalking, as defined in this Policy.

Supportive Measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed.

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (1) fear for their safety or the safety of others; or (2) suffer substantial emotional distress. For purposes of this definition:

  • “Course of conduct” means two or more acts, including, but not limited to, acts in which the respondent directly, indirectly, or through third parties, by any action, method, device, or other means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property.
  • “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
  • “Reasonable person” means reasonable person under similar circumstances and with similar identities to the complainant.

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IV. On-Campus Confidential and Non-Confidential Reporting Options

The University offers a number of confidential and non-confidential resources on-campus.  The available reporting and confidential disclosure options are described below so individuals can make informed choices about where to turn should they become the victim of Sexual Misconduct.  If you are unsure of a person’s reporting obligations, please ask.

Confidential resources can connect you with other on or off-campus resources and explain the options for assistance that are available to you as well. 

If you choose to report an incident to the Title IX Coordinator, a Deputy Title IX Coordinator and/or the Department of Public Safety, these individuals will document the incident, offer Supportive Measures, and explain the process of filing a Formal Complaint. To the extent the Title IX Coordinator is unavailable to perform their duties, they may assign a designee where appropriate.

These individuals and offices are not confidential resources.  However, even University offices and employees who cannot guarantee confidentiality will maintain your privacy to the greatest extent possible.  This means that the information you provide in connection with a report will be shared only as necessary and on a need-to-know basis. Complainants are not required to make a Formal Complaint if they choose not to do so.

A Title IX Coordinator may also prepare and file a Formal Complaint if warranted, in cases in which the Complainant chooses not to do so, after having considered the Complainant’s wishes and evaluated whether an investigation is not clearly unreasonable in light of the specific circumstances. However, where the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a party under this Policy.

All University employees (except for those employees who have a recognized confidentiality privilege) are required to report incidents of Sexual Misconduct to the Title IX Coordinator, a Deputy Title IX Coordinator and/or the Department of Public Safety.

A. Title IX Coordinators – Non-Confidential

The following offices and individuals have been trained to receive and respond to allegations of violations of this Policy.

  • Keaton Wong, Director of Equal Opportunity, Compliance and Title IX Coordinator, Office of Human Resources, University Center, Suite C, (718) 990-2660, [email protected] or [email protected]
  • Jackie Lochrie, Associate Dean for Student Services, Deputy Title IX Coordinator, Division of Student Affairs, Peter J. Tobin College of Business, Garden Level-Judiciary Suite-17C, (718) 990-6568, [email protected]
  • Kathleen Meehan, Senior Deputy Athletics Director/Senior Women’s Administrator, Deputy Title IX Coordinator, Department of Athletics, Lou Carnesecca Arena, Room 157 (718) 990-6173, [email protected]

Once any of these individuals or offices is notified of an incident of Sexual Misconduct, they will address the matter in accordance with the procedures outlined in this Policy, including implementing any appropriate reasonable Supportive Measures and serving as the point of contact to ensure Supportive Measures are implemented effectively. 

B. Public Safety – Non-Confidential

Anyone may contact the Department of Public Safety 24 hours a day, 7 days per week, 365 days a year.  Certain personnel are former police officers who have prior experience working with crime victims. 

  • St. John’s Department of Public Safety, Public Safety Emergency Hotline: (718) 990-5252, or if on campus Ext. 5252. 
  • Campus Public Safety
    • Queens Campus, ROTC Building: (718) 990-6281
    • Staten Island Campus, Spellman Hall, Room 116: (718) 390-4487(8)
    • Manhattan Campus, Front Desk: (212) 277-5155
    • Hauppauge location: (718) 990-5252
  • Global Sites Local Police and Emergency Assistance – Call 112
    • Rome, Italy, Security Desk: +39-06-393-84299       
    • Paris, France, Security Desk: +33-(0)-1-7745-8901
    • Limerick, Ireland, director of international office, Mary Immaculate College: (011) 353-61774787, (011) 353-860428088 (cell). 

C. Anonymous Reporting – Non-Confidential

Reports of Sexual Misconduct can be made anonymously by filling out the online form available here.   Reports submitted via the online form are reviewed by the Title IX Coordinator, who will promptly evaluate the matter in accordance with the procedures outlined in this Policy.  However, when a Formal Complaint is initiated by a Complainant or signed by the Title IX Coordinator with knowledge of the Complainant’s identity, the Complainant’s anonymity cannot be maintained.

D. Center for Counseling and Consultation (for students) – Confidential

The Center for Counseling and Consultation has licensed mental health professionals available to provide free, confidential mental health counseling to students who have been affected by Sexual Misconduct.  However, state law requires professional counselors to report when: (i) there is an imminent threat of harm to self or others; (ii) the conduct involves suspected abuse of a minor under the age of 18; or (iii) as otherwise required or permitted by law or court order.

The Center for Counseling and Consultation is located:

  • Queens Campus, Marillac Hall, Room 130, (718) 990-6384
  • Staten Island Campus, Flynn Hall, Room 115, (718) 390-4451

E. Campus Ministry

For non-confidential spiritual support:

Campus ministers are available for spiritual support and referrals for follow up assistance outside of Campus Ministry. 

  • Queens Marillac Hall, Room 239, (718) 990-6255
  • Staten Island, Notre Dame House, (718) 390-4475

F. Medical Assistance or Support for Students – Confidential

Student Health Services has staff available for medical assistance or support:

  • Queens, DaSilva, First Floor, (718) 990-6360
  • Staten Island, Campus Center, Room B-17 (718) 390-4447

G. Campus Support Advisor for Students - Confidential

The Campus Support Advisor (CSA) is a trained University administrator who serves as a confidential resource to students who have experienced Sexual Misconduct.  The CSA will provide information on University procedures, discuss all available Supportive Measures, and facilitate referrals for other support services. You do not need to disclose any information or personal details about an incident of Sexual Misconduct to access or receive Supportive Measures or other support from the CSA. 

The CSA is located on the Queens Campus in Marillac Hall, Room 130, (718) 990-6384.

The CSA will maintain an individual’s disclosures as confidential, and will not report crimes to local law enforcement or the University, unless: (i) they are given permission to share information by the person who experienced the Sexual Misconduct; (ii) there is an imminent threat of harm to self or others; (iii) the conduct involves suspected abuse of a minor under the age of 18; or (iv) as otherwise required or permitted by law or court order. 

H. Confidential Support and Resources for Employees

Employees who have experienced Sexual Misconduct are encouraged to obtain emotional support and/or counseling.  Professional counselors are available for full-time faculty, administrators and staff through the free, confidential Employee Assistance Program (EAP) 24 hours a day, 7 days a week, 365 days per year.  St. John’s University’s employees may speak with a counselor on the phone or schedule an appointment by calling: 1 (800) 833-8707 or go online to www.myccaonline.com. (Log in with company code: STJOHNS). 

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V. Off-Campus Options for Assistance

The University strongly encourages anyone who has experienced Sexual Misconduct or who has been the victim of a crime to seek immediate assistance to ensure physical safety and to obtain medical or other support services.  There is a wide range of community resources available.  Reports to these off-campus community resources will not constitute a report to the University and will not result in the University taking any action against the Respondent.  Some of those options and resources, which may or may not charge service fees, include: 

A. Medical or Emergency Assistance and Resources

Assistance is available 24 hours a day, 7 days a week from:

  • Police and Emergency Assistance - Call 911
  • Mount Sinai - Elmhurst Hospital Sexual Assault and Violence Intervention Program (SAVI), 79-01 Broadway Queens, NY 11373, 718-334-1418
  • NYPD Special Victims Division - 646-610-7272
  • Safe Horizon Rape and Sexual Assault Hotline - (866) 689-HELP (4357)
  • Safe Horizon Domestic Violence Hotline - (800) 621-HOPE (4673)
  • New York State Office of Victim Services Toll Free Number – (800) 247-8035
  • New York State Sexual Assault and Domestic Violence Hotline (800) 942-6906; Spanish: (800) 942-6908
  • New York State Police Sexual Assault Hotline – (844) 845-7269

In addition to the above list, there are many other available resources, including the Sexual Assault Resource Guide: Sexual Assault: You Are Not Alone.

B. Medical Examination for Preservation of Evidence

In instances involving physical injury or sexual assault, the University strongly encourages the Complainant to obtain a medical examination to determine the extent of injuries. A hospital, with the Complainant’s permission, will collect physical evidence in a sexual offense evidence collection kit. Consenting to the completion of a sexual offense evidence collection kit does not obligate the Complainant to pursue criminal charges with the police; it is a way to preserve evidence should there be a choice to pursue criminal charges at a later time. Hospitals are required by law to preserve such evidence for a minimum of 30 days.

C. Law Enforcement Notification

  • In keeping with its commitment to taking all appropriate steps to eliminate, prevent, and remedy Sexual Misconduct, the University urges the Complainant to report all instances of Sexual Misconduct or criminal activity to local law enforcement (NYPD Special Victims Division - 646-610-7272)/New York State Police Sexual Assault Hotline – (844) 845-7269).  Timing is a critical factor in collecting and preserving evidence that may assist in proving that the alleged Sexual Misconduct or crime occurred and may also be helpful in obtaining a protection or restraining order from the police.  The Complainant may contact local law enforcement directly, whether or not a complaint has been filed with the University.  If requested, University representatives are available to assist the Complainant in notifying law enforcement or legal service organizations to learn about these remedies.  The Complainant may also decline to notify law enforcement.

A person may report an incident to either the police or the University or to both.

Effect of Law Enforcement Notification: The filing of a complaint of Sexual Misconduct under this Policy is independent of any criminal investigation or proceeding. The University may not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation or to take any necessary measures to protect a party and the University community.  However, the University may temporarily delay its investigation to enable law enforcement to gather evidence and to engage in a preliminary investigation of Sexual Misconduct matters that may also violate state or federal law. 

The standards for finding a violation of criminal law are different from the standards for finding a violation of this Policy. Therefore, criminal investigations or reports are not determinative of whether Sexual Misconduct, as defined in this Policy, has occurred. In other words, conduct may constitute Sexual Misconduct under this Policy even if law enforcement agencies lack sufficient evidence of a crime and/or decline to prosecute.

Court Orders of Protection: Family court is an option for a person to seek a civil court order of protection in many circumstances.  Upon request, Public Safety Officers are available to provide employees with information on how to seek an Order of Protection or a Temporary Restraining Order, but a public safety officer cannot request an Order of Protection or Temporary Restraining Order on behalf of an employee.  A Public Safety Officer may provide a student with assistance in obtaining an order of protection.

If an Order of Protection is granted, the party will have the right to receive a copy of the Order of Protection when it is received by the University. The parties will also have the opportunity to speak with an appropriate University official who can explain the order and the consequences for violating the order (including but not limited to arrest, additional conduct charges, and interim suspension), and answer any questions about the order, including information about the party’s responsibility to stay away from the protected person(s). Additionally, if a party violates the Order of Protection, the other party may receive assistance from the University in calling local law enforcement to inform them of the violation.

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VI. Alcohol and Drug-Use Amnesty Policy

The health and safety of every student at the University is of utmost importance.  The University realizes that students who have been drinking alcohol and/or using drugs (whether such use is voluntary or involuntary) at the time Sexual Misconduct occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct.  The University strongly encourages students to promptly report any incident of Sexual Misconduct to University officials.  A Bystander acting in good faith or a reporting individual acting in good faith who discloses any incident of Sexual Misconduct to University officials or law enforcement will not be subject to the University’s Code of Conduct for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the Sexual Misconduct.

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VII. When the University Receives a Report of Sexual Misconduct

The University encourages reporting Sexual Misconduct to the University in accordance with this Policy regardless of whether the incident took place on or off campus, and even if it is also reported to local law enforcement.

There is no time limit for reporting Sexual Misconduct to the Title IX Coordinators under this Policy. Nevertheless, any member of the University community who believes that they have been a victim of Sexual Misconduct is encouraged to report the alleged Sexual Misconduct immediately. 

When the University receives a report of alleged Sexual Misconduct, the Title IX Coordinator will promptly evaluate the matter and handle it in accordance with this Policy and applicable law.

A. Supportive Measures

The University offers a wide range of Supportive Measures for students and employees designed to protect the safety and well-being of the individuals involved and the University Community, and to deter Sexual Misconduct.  Supportive Measures are non-disciplinary and non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Supportive Measures may be temporary or permanent and are available regardless of whether a Complainant chooses to report the crime to law enforcement or files a Formal Complaint under this Policy.  The determination of appropriate Supportive Measures is based on the specific facts and circumstances of the situation. Such measures include, but are not limited to:

  • access to counseling services;
  • extensions of class or work deadlines or other course-related adjustments;
  • adjustments to academic or University work schedules;
  • transportation assistance including security escorts;
  • mutual restrictions on contact between the parties (No Contact Orders);
  • changes in housing or work locations;
  • leaves of absence;
  • issuing No Trespass Orders; and
  • increased security and monitoring of certain areas of campus.

Requests for Supportive Measures in connection with an incident of Sexual Misconduct should be made to the University’s Title IX Coordinator.  The Title IX Coordinator will pursue a meaningful dialogue with the Complainant to determine which Supportive Measures may restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party. Such requests are kept private, and information will be shared as needed to facilitate providing the Supportive Measures.  

B. No Contact Orders

The Title IX Coordinator may impose a No Contact Order, which typically will include a directive that the parties refrain from having contact with one another, directly or indirectly, including personal contact, e-mail, telephone, text message, social media, or by means of a third party.

Both the Complainant and Respondent may request a prompt review, reasonable under the circumstances, of the need for and terms of a No Contact Order or other Supportive Measures.  Such a request may be made in writing to the Title IX Coordinator, providing the basis for that request and any evidence to support the request.  Upon receipt of such a request, the Title IX Coordinator will inform the other party of the request and allow the other party to respond, including the submission of evidence if desired.  The Title IX Coordinator will determine whether a modification is appropriate.

An individual who wishes to report a violation of a No Contact Order can contact the Title IX Coordinator.  Any individual who violates a No Contact Order may be subject to disciplinary action up to and including expulsion (or termination of employment).

C. Emergency Removal (Students)

The University may remove a Respondent from the University’s education program or activity on an emergency basis if the University, after an individualized safety and risk analysis, determines the Respondent poses an immediate threat to the physical health or safety to the University community arising from the allegations of Sexual Misconduct justifying removal.  In such cases, the University will provide the Respondent with written notice of the emergency removal.  The Respondent may challenge an emergency removal by writing to the Title IX Coordinator, providing the basis for the request, and any evidence to support the request.  Upon receipt of such a request, the Title IX Coordinator will inform the Complainant of the request and allow the Complainant to respond, including the submission of evidence if desired.  The Title IX Coordinator will determine whether a modification is appropriate.

D. Administrative Leave (Employees)

The University may place an employee-Respondent on administrative leave (with or without pay) upon receipt of allegations of Sexual Misconduct against the employee Respondent, and pending an investigation of such allegations pursuant to this Policy, and the grievance process outlined below.

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VIII. Filing a Formal Complaint

A. How to File

A Complainant may file a Formal Complaint alleging Sexual Misconduct against a Respondent and requesting that the University investigate the allegation of Sexual Misconduct. Such a complaint may be filed with the Title IX Coordinator in person, by mail, or by e-mail to:

Keaton Wong
Director of Equal Opportunity, Compliance and Title IX Coordinator
St. John’s University
Office of Human Resources, University Center Suite C
8000 Utopia Parkway
Queens, NY 11439
Phone: 718-990-2660
[email protected] or [email protected]

A Formal Complaint may also be submitted to the Title IX Coordinator via the online Sexual Misconduct reporting form available here.

B. Option to Decline Filing a Formal Complaint

A Complainant may decline to file a Formal Complaint or request that the University not investigate the Formal Complaint. The Title IX Coordinator will weigh the Complainant’s request against the University’s obligation to provide a safe, non-discriminatory environment for the University community and decide whether the request can be honored. In evaluating the request, the Title IX Coordinator may consider the following factors:

  • whether there have been other Sexual Misconduct complaints about the same Respondent;
  • whether the Respondent has a history of arrests or records from a prior school indicating a history of violence;
  • whether the incident represents escalation and unlawful conduct on behalf of the Respondent from previously noted behavior;
  • whether there is an increased risk that the Respondent will commit additional acts of violence;
  • whether the Sexual Misconduct was committed by multiple perpetrators;
  • whether the Complainant’s report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group;
  • whether the alleged Sexual Misconduct was perpetrated with a weapon;
  • the age of the Complainant;
  • the seriousness of the offense;
  • whether the University has other means to obtain relevant evidence (e.g., security cameras or personal, physical evidence).

If the Title IX Coordinator determines that the University will honor the request not to investigate, the Title IX Coordinator will notify the Complainant of the decision.  Ultimately, the University retains the right to act upon any information that comes to its attention, and the Title IX Coordinator may sign a Formal Complaint alleging Sexual Misconduct against a Respondent and order an investigation of the alleged Sexual Misconduct.

The University may also consider broader remedial action, such as increased monitoring and/or security at locations where the reported Sexual Misconduct occurred, increasing training, education and prevention efforts, and conducting climate surveys.

C. Consolidating Formal Complaints

The University may consolidate Formal Complaints when there are allegations of Sexual Misconduct that arise out of the same facts or circumstances, whether the allegations are against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party.  Formal Complaints arise out of the same facts or circumstances where the multiple Complainants’ allegations are so intertwined that their allegations directly relate to all the parties.

D. Dismissal of a Formal Complaint

The University must dismiss a Formal Complaint filed pursuant to this Policy if the conduct alleged in the complaint would not constitute Sexual Misconduct as defined in this Policy, even if proven.  However, conduct that does not rise to the level of a violation of this Policy may violate Policy #704, Policy Against Bias, Discrimination and Harassment, the Student Code of Conduct, or other University policies.

The University may dismiss a Formal Complaint or any allegations therein if at any time during the investigation or hearing:

  • the Complainant withdraws the Formal Complaint or any allegations therein by notifying the Title IX Coordinator in writing;
  • the Respondent is no longer enrolled or employed by the University; or
  • specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.

In all cases of dismissal, the Title IX Coordinator will promptly send written notice of the dismissal and the reasons for the dismissal to the Complainant and the Respondent simultaneously.  The Complainant and the Respondent may appeal any dismissal using the appeal procedure set forth in this Policy.

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IX. Process for Investigating and Resolving Complaints of Sexual Misconduct

The University will promptly, thoroughly, and impartially investigate and address complaints of Sexual Misconduct by and against its students, employees and third parties (including visitors and community members), in order to stop prohibited conduct, prevent its recurrence and address its effects.

Any University officials involved in the complaint resolution process, including the Title IX Coordinator, the Investigator, and the Hearing Officer shall receive appropriate training consistent with this Policy. 

A. Notice of Investigation

After making a threshold determination that the conduct alleged, if proved, may constitute Sexual Misconduct under this Policy, the Title IX Coordinator will commence an investigation by issuing a Notice of Investigation to the Complainant and the Respondent. 

The notice will state the following:

  • the identities of the parties involved, if known;
  • a description of the alleged conduct that if proven, would violate this Policy, including the date(s), time(s), and location(s) of the alleged conduct, if known;
  • a description of the grievance process;
  • an instruction to preserve any relevant evidence;
  • the specific University policy alleged to have been violated and possible sanctions;
  • the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the complaint resolution process;
  • where to review the New York State Student Bill of Rights;
  • the parties may have an advisor of their choice throughout the investigatory and/or hearing processes, who may be, but is not required to be, an attorney;
  • the parties will have an opportunity to inspect and review evidence;
  • the availability of Supportive Measures;
  • the prohibition against retaliation;
  • the University policy or provision that prohibits knowingly making false statements or knowingly submitting false information during a University investigation or hearing, which in the case of students would be adjudicated through the Student Code of Conduct process (or in the case of employees through the applicable policies and/or Collective Bargaining Agreement); and
  • the parties’ option to select informal resolution of the complaint (except in cases involving allegations that an employee sexually harassed a student).

The Investigator will provide to any party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

B. Advisors

During an investigation and at any hearing conducted pursuant to this Policy to adjudicate a Formal Complaint of Sexual Misconduct, the Complainant and Respondent have the right to an advisor of their choice. 

The Complainant and Respondent may request that the University provide them with an advisor at no expense, or they may choose their own advisor or hire one at their own expense.  The advisor may be any person who is not otherwise a party or witness involved in the investigation.  The advisor may also be, but is not required to be, an attorney.

If any advisor’s conduct is not consistent with these guidelines, they may be excluded from the process, and the party will have the right to use a different advisor or will be assigned a new advisor by the University. The University reserves the right to have its own legal counsel (in-house and/or retained) present at any point in the process.

Any faculty member who is accused of Sexual Misconduct will be advised that they may choose to be accompanied by an AAUP-FA representative, as their advisor of choice under this Policy, to any interviews in connection with the subject matter of the complaint in accordance with the procedures outlined in the University’s Collective Bargaining Agreement.

C. Investigation

The Title IX Coordinator will assign an Investigator to conduct an investigation.  An investigation may include all or some of the following steps, depending on the determination of the appropriate scope of the investigation for each circumstance, as well as any additional steps determined to be appropriate: Meetings or other communication with the Complainant, the Respondent, and any other appropriate individuals who may have knowledge of the situation, as well as review of documents and materials that may relate to the situation.  

The Complainant and the Respondent will have an equal opportunity to gather and present relevant evidence, participate in the investigation and present witnesses and any inculpatory (implying or imputing guilt) and exculpatory (to clear from alleged fault or guilt) evidence.  The Investigator will have the discretion to determine the relevance of any proffered witnesses and evidence, and accordingly, will determine which witnesses to interview and what evidence to obtain. 

The Investigator will request interviews with the Complainant, the Respondent, and witnesses by sending written notice of the date, time, location, expected participants, and purpose of the interview.  The parties will receive notice of interviews with sufficient time to prepare to participate in the interviews.

The Investigator will also gather relevant evidence, which may include physical evidence, documentary evidence, communications between the parties, and electronic records and media as appropriate.  The Investigator may request evidence in the possession of the parties if there are no other means to obtain such evidence.  The University cannot 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 (or someone acting or assisting in professional or paraprofessional’s capacity) and which are made and maintained in connection with the provision of treatment to the party, unless the party provides the University with their voluntary, written consent to do so.

All members of the University community are expected to cooperate with an investigation pursuant to this Policy.  However, parties may refuse to participate in the grievance process.

D. Opportunity to Review and Inspect Evidence

The Complainant and the Respondent will each have an equal opportunity to inspect and review evidence obtained as part of any investigation conducted pursuant to this Policy, which is directly related to the allegations raised in a Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, except for evidence that is protected by a legally recognized privilege (e.g., attorney-client privilege, doctor-patient privilege) unless the party has given their voluntary, written consent.

Towards the end of the investigative process, but before finalizing the investigative report, the Title IX Coordinator will send to each party and their advisors, if any, the evidence subject to inspection and review in an electronic format or a hard copy.  The Complainant and the Respondent will each have 10 calendar days to submit a written response to the evidence, which will be incorporated into the investigative file and considered by the Investigator in compiling the investigative report. 

E. Opportunity to Review Investigative Report

At the conclusion of the investigation, the Investigator will create an investigative report that fairly summarizes relevant evidence. The Complainant and the Respondent will each have an equal opportunity to review the investigative report.  The Title IX Coordinator will send to each party and their Advisors, if any, the investigative report in an electronic format or a hard copy at least 10 days prior to a hearing or other time of determination regarding responsibility, for their review and written response. The Complainant and the Respondent, and the parties’ advisor, if any, will each have 10 calendar days to submit a written response to the report, which will be incorporated into the investigative file. If parties wish to make an impact statement, they should include it as part of their written response.

F. Notice of Hearing

Once the investigative process has concluded, the Title IX Coordinator will schedule a hearing and provide the Complainant and Respondent, and their advisor(s), if any, with written notice of the hearing, allowing sufficient time to prepare for the hearing.

G. Transfer of Investigative Record

Within a reasonable time prior to the scheduled hearing, the Title IX Coordinator will transfer the investigative record to the Hearing Officer.  The investigative record will include, at a minimum, the following:

  • the Formal Complaint of Sexual Misconduct;
  • the Notices of Investigation sent to the parties;
  • relevant evidence collected during the investigation;
  • any written responses provided by the parties upon inspection and review of evidence;
  • the investigative report;
  • any written responses provided by the parties upon review of the investigative report; and
  • the hearing notices sent to the parties.

The investigative record and information contained therein may be redacted by the Investigator, to exclude information not directly related to the allegations or that is otherwise barred from use under this policy, such as information protected by a legally recognized privilege, or a party’s treatment records if the party has not given written consent. The investigative record will be made available to the Complainant and the Respondent at the hearing, and each party will have equal opportunity to refer to any information in the investigative record during the hearing.

H. Evidentiary Standard

The evidentiary standard in determining the facts will be based upon a preponderance of the evidence, i.e., a finding that it is more likely than not that the alleged Sexual Misconduct occurred or did not occur.

The Respondent is presumed to be not responsible for the conduct alleged in a Formal Complaint of Sexual Misconduct until a finding of responsibility is made pursuant to the procedures set forth in this Policy.

I. Hearing Procedure

An impartial, live hearing will be held to give the Complainant and the Respondent, through their advisors, equal opportunity to present relevant evidence to the Hearing Officer, who will determine whether the Respondent is responsible or not responsible for the Sexual Misconduct alleged by the Complainant.  The Hearing Officer will not be the Title IX Coordinator or the Investigator assigned to the case.

At the University’s discretion and with consideration for requests made by the parties, the hearing may be conducted with all parties physically present in the same location, or any or all participants may appear at the hearing virtually, with technology enabling participants to simultaneously see and hear each other in real-time.  The participants in the hearing will generally be limited to the Hearing Officer, the Complainant, the Complainant’s advisor, the Respondent, the Respondent’s advisor, the Investigator, and witnesses (who will only be present for their own testimony).  If a party’s chosen advisor does not appear at the hearing, the University will appoint an advisor to represent the party at the hearing.  The hearing will be recorded.

The hearing will typically proceed as follows:

  • Introduction by the Hearing Officer, including an explanation of the hearing process, the rules of decorum, and any other rules governing the hearing.
  • Testimony by the Investigator, with questioning by the Hearing Officer and cross examination by the parties’ advisors.
  • Testimony by the Complainant, with questioning by the Hearing Officer and cross examination by the Respondent’s advisor.
  • Testimony by the Respondent, with questioning by the Hearing Officer and cross examination by the Complainant’s advisor.
  • Testimony by witnesses, with questioning by the Hearing Officer and cross examination by the parties’ advisors.
  • Closing statement by the Complainant.
  • Closing statement by the Respondent.
  • The Hearing Officer closes the hearing, informing the parties that a written decision will be forthcoming.

The Hearing Officer may not consider any statements pertaining to the alleged Sexual Misconduct at issue made by individuals (including the Complainant, the Respondent, and witnesses) prior to the hearing if those individuals are not present at the hearing or decline to be cross-examined.  In determining responsibility, the Hearing Officer will not draw any inferences based solely on the absence of a party or witness, or the refusal of a party or witness to answer questions or be cross-examined. This exclusion shall not apply to a Respondent’s alleged verbal conduct, that itself constitutes the alleged sexual harassment at issue.

During the testimony phases of the hearing, the Hearing Officer will question the testifying individual first.  The Complainant’s advisor will then have an opportunity to question or cross-examine the testifying individual, followed by the Respondent’s advisor.  The Hearing Officer will give both parties’ advisors the opportunity to ask any follow-up questions before moving to the next round of testimony.  Only relevant cross-examination and other questions may be asked of a party or witness. The Hearing Officer must decide on the relevancy of any questions asked by the parties’ advisors before they are answered, and will provide an explanation whenever questions are excluded as not relevant.  In general, questions and evidence about either party’s sexual predisposition or prior sexual behavior are not relevant. However, such questions and evidence may be permitted if offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove Consent.  At no time may the Complainant and the Respondent question each other directly.

The Hearing Officer will have the discretion to admit or not admit any new evidence introduced by either party that had not been included in the investigative record on the basis of relevance.  Formal rules of evidence will not apply to the hearing.

J. Decision Regarding Responsibility

Upon consideration of the investigative record and the hearing record, the Hearing Officer will issue a written decision regarding responsibility.  The Complainant and the Respondent will receive copies of the written decision simultaneously.

The decision will include the following:

  • the allegations potentially constituting sexual harassment, sexual assault, dating violence, domestic violence, or stalking as defined in this Policy;
  • a description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
  • findings of fact supporting the determination;
  • conclusions regarding the application of University Policies to the facts;
  • a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility;
  • any disciplinary sanctions to be imposed on the Respondent;
  • whether remedies designed to restore or preserve equal access to the University’s education program or activity or employment will be provided to the Complainant; and
  • the University’s procedures and permissible bases for the Complainant and the Respondent to appeal.

K. Transfer of the Hearing Record

Upon issuing the written decision regarding responsibility, the Hearing Officer will transfer the hearing record to the Title IX Coordinator.  The hearing record will include, at a minimum, the following:

  • the recording of the hearing;
  • any information admitted by the Hearing Officer during the hearing that had not been included in the investigative record;
  • the written decision; and
  • the notices sent to the parties regarding the outcome.

L. Appeals

All appeals will be heard by a three member panel.  The panel shall not include the Hearing Officer, the Title IX Coordinator, or the Investigator assigned to the case. 

The Complainant and the Respondent have the right to appeal a determination regarding responsibility, sanctions, or the dismissal of a Formal Complaint or any allegations therein, by submitting a written appeal to the Title IX Coordinator within 10 calendar days of the determination or dismissal.  If a party does not file an appeal within that period, their right to appeal is waived.  If neither party files an appeal within that period, the determination regarding responsibility or dismissal is considered final as of the date the ability to appeal expired.

Appeals must be based on one or more of the following bases:

  • procedural irregularity that affected the outcome;
  • new evidence that was not reasonably available at the time the decision regarding responsibility or dismissal was made, that could affect the outcome;
  • the Title IX Coordinator, Investigator, or the Hearing Officer had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent, that affected the outcome.

Upon receipt of a party’s appeal, the Title IX Coordinator will promptly send a Notice of Appeal to both parties, informing them in writing that an appeal has been filed and that each party may submit a written statement in support of, or challenging the decision regarding responsibility within 10 calendar days of the Notice of Appeal. 

After 10 calendar days from issuance of the Notice of Appeal have passed, the Title IX Coordinator will share each party’s statement, if any, with the other party.  The Title IX Coordinator will also send such statements, if any, along with the investigative record, the hearing record, and the written appeal to the appeal panel.

The appeal panel will review the investigative record, the hearing record, and all written submissions provided by the parties on appeal, and within a reasonable time, issue a written decision describing the result of the appeal and the rationale for the result.  The appeal panel may:

  • affirm the decision of the Hearing Officer;
  • reverse a finding; or
  • change a sanction or remedy.

The Complainant and the Respondent will be simultaneously notified of the appeal result, which shall be final and binding on all parties.

M. Time Frame for Investigation and Complaint Resolution

While the time to resolve a reported incident will vary from case to case, depending on the specific facts and circumstances, the University will investigate and resolve complaints as expeditiously as possible.  The grievance process may allow temporary delays and limited extension for good cause with written notice to the Complainant and the Respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.

The Complainant and the Respondent may request reasonable extensions on deadlines set forth in this Policy, to be granted at the University’s discretion.  

N. Possible Sanctions

For Staff and Administrators:
Any staff or administrator who has been found to have violated this Policy will be subject to disciplinary action including, but not limited to: letter of reprimand or warning; probation; suspension (with or without pay); termination; or other discipline or resolution deemed appropriate based on the circumstances and severity of the findings of fact. 

For Faculty:

The University will follow applicable University procedures, including those provided in the Collective Bargaining Agreement and University Statutes, in taking any disciplinary action against faculty members found to have violated this Policy.  Potential sanctions will range from a letter of reprimand or warning to termination of employment.

For Students:
Possible sanctions for students can include, but are not limited to, a formal warning, housing probation, University premises restriction, suspension or expulsion from the University’s housing, student life probation, University disciplinary probation and suspension or expulsion from the University.

Where required by federal, state and/or local law, the transcripts of students found responsible after a hearing and appeal, if any, or who withdraw from the University while certain disciplinary charges are pending, shall include the following notation:

  • Suspended after a finding of responsibility for a code of conduct violation;
  • Expelled after a finding of responsibility for a code of conduct violation; or
  • Withdrew with conduct charges pending.

Transcript notations for suspensions may be removed at the discretion of the University, but no earlier than one (1) year after the conclusion of the suspension.  Transcript notations for expulsion shall not be removed.

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X. Informal Resolution

After a Formal Complaint has been filed, but before any determination regarding the respondent’s responsibility has been made, either the complainant or the respondent may request by writing to the Title IX Coordinator that the University facilitate an informal resolution process that does not involve a full investigation and adjudication.  Upon receiving such a request, the Title IX Coordinator will notify the other party. 

To proceed with informal resolution, the Title IX Coordinator will provide both parties with written notice disclosing the following:

  • the allegations,
  • the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the Formal Complaint, and
  • any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

If both parties agree to resolve the Formal Complaint through an informal resolution process, they must provide the Title IX Coordinator with their voluntary, written consent to participate in the informal resolution process.

Before the conclusion of any informal resolution process, either party has the right to withdraw from the informal resolution process and resume the Formal Complaint resolution process. Informal resolution is not permissible to resolve allegations that an employee sexually harassed a student.

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XI. Application of this Policy

The complaint resolution procedures set forth in this Policy apply to complaints made against students, staff, administrators, employees of the University, and other persons with or without affiliation with the University.  Complaints against faculty members will also follow this Policy’s procedures, as well as any additional procedures set forth in the Collective Bargaining Agreement and University Statutes.

In cases where the person accused of Sexual Misconduct is neither a student nor an employee of the University, the University’s ability to take responsive action is extremely limited.  However, the University shall take all appropriate steps within its control and in accordance with the law to ensure a safe and nondiscriminatory campus community such as restricting the visitor’s access to campus, and/or referring the matter to local law enforcement for legal action, where appropriate.

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XII. Prohibition on Retaliation

The University prohibits retaliation against any person who reports Sexual Misconduct or participates in the investigation of any allegation of Sexual Misconduct, including participating as a witness.

No member of the University community or third party may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or Formal Complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by this Policy, constitutes retaliation. Any member of the University community or third party who engages in such retaliation will be subject to prompt and appropriate disciplinary action, including possible termination or expulsion from the University.

Retaliation should be reported promptly to the University’s Title IX Coordinator in accordance with this Policy. Reports of retaliation will be investigated, and such conduct may result in disciplinary action independent of the sanction(s) or measures imposed in response to the underlying allegations of Sexual Misconduct.

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XIII. Prevention and Awareness Education Programs

Creating a safe and respectful environment is the responsibility of all members of the community. To promote and maintain this environment, the University engages in comprehensive educational programming to prevent Sexual Misconduct. The University provides primary prevention and awareness programs for all incoming students and employees, and ongoing prevention and awareness campaigns for all students and employees.
The University educates the student community about Sexual Misconduct through its mandatory new student orientation program that includes an online learning component and interactive peer theater and ongoing programming initiatives throughout the students’ time at the University.  Such programming and courses provide students with information about safety and security procedures, the University’s procedures for responding to reports of Sexual Misconduct, options for safe and positive bystander intervention, and information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks. Public awareness events, such as “Take Back the Night” candlelight vigils or other forums in which students disclose incidents of sexual violence, are not considered notice to the University of Sexual Misconduct for purposes of triggering its obligation to investigate any particular incident(s). Such events may, however, inform the need for further campus-wide education and prevention efforts, and the University will provide information about an individual’s Title IX rights at these events.  For additional information about the University’s Sexual Misconduct prevention and awareness programming, please contact the University’s Title IX Coordinator.

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XIV. Clery Act Compliance

The University is required to include for statistical reporting purposes the occurrence of certain incidents in its Annual Security Report (ASR). Names of individuals involved in incidents are not reported or disclosed in the ASR.  In the case of an emergency or ongoing dangerous situation, the University will issue a timely warning to the campus. In such circumstances, the name of the Respondent may be disclosed to the community, but the name of the Complainant will not be disclosed. The University’s ASR is publicly available and posted to the St. John’s University website, via a link on the Public Safety webpage.

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XV. Policy Compliance

Questions regarding Title IX, the Campus SaVE Act and/or Article 129-B of the New York State Education Law may be referred to the University’s Title IX Coordinator. Questions regarding Title IX may also be referred to the U.S. Department of Education’s Office for Civil Rights (OCR).  OCR may be contacted at 400 Maryland Avenue, SW, Washington, DC 20202-1100 or (800) 421-3481.

St. John's University, New York
Human Resources Policy Manual

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