ELIZABETH K. ABDNOUR March 7, 2018 Mr. Rick Fanning, Director of Employee Relations Michigan State University East Lansing, Michigan 48824 RE: _ Investigation Dear Rick: I am writing to provide you with information which is relevant to the investigation you are conducting. Since Jayne Schuiteman was named Acting Director of OIE on January 15, 2018, there have been serious problems in the office which have caused me to have significant concerns with regard to how the office is handling our responsibilities. The issues include the following: © Jayne lacks the required knowledge and skill to provide appropriate and timely guidance and direction to investigators in their investigations. Jayne's lack of knowledge and delayed or nonexistent guidance have caused serions delays to investigators’ ability to complete their investigations expeditiously, causing the timeline in a number of eases to far exceed the necessary investigatory timeline, even when considering that good cause requirements may have been met for some delay. These delays and lack of proper guidance have caused OIE to repeatedly violate both federal Title IX requirements and University policy for timeliness in investigations.’ MSU Title IX website: “Contact claimant within 2 business days after receipt of report... The university will maintain regular communication with the claimant and respondent about the progress of the investigation and its resolution.” RVSM Policy p. 38: “The University will use its best efforts to complete its investigations of relationship violence, stalking, of sexual misconduct within 60 calendar days, although this timeframe may be extended for good cause Good cause forthe extension of an investigation timeline may exist fora variety of factors, including the complexity of the circumstances of each allegation, the integrity and completeness of the investigation, to comply with a request by law enforcement, to accommodate the availablity of witnesses, to account for University breaks or vacations, or to-address other legitimate investigatory reasons. The University will maintain regular communication with the claimant and respondent about the progress of the investigation and its resolution...”ELIZABETH K. ABDNOUR ¢ Jayne’s investigative skills are lacking to the point that she has completed investigations where she has failed to consider all relevant evidence in her analysis, failed to cite to the appropriate policy violation, and produced investigation reports with conclusions which are not properly supported by the facts. Jayne’s inadequate investigation skills do not meet the requirements of either federal Title IX requirements or University policy as she has completed investigations where she did not consider the totality of the circumstances, did not properly analyze credibility, and/or improperly applied the preponderance of the evidence standard” That may have been a workable situation for OIE when Jayne was an investigator whose work was being reviewed by a director and OGC. It is not acceptable when Jayne is the individual who is reviewing all other investigators’ work, and putting all investigators at risk due to her lack of the necessary both basic and nuanced Title IX, ADP, and legal knowledge to effectively review investigative reports. Jayne lacks the ability to properly manage the flow of cases into and through OIE, due to her inability to understand how to use the case management system, her failure to review and assign cases in a timely manner, and her inability to understand which cases are inappropriate to be assigned to investigators. ‘These delays have caused a number of reports made to OLE to fall behind the required timelines both in University guidance and federal Title IX guidelines and the MSU/OCR resolution agreement. These documents require that OIE will respond to complaints within five business days and complete investigations within 60 days absent good cause. An OIE director’s failure to review and assign cases in a timely manner does not constitute “good cause” under either University policy or federal guidance © Jayne has misrepresented the reasons for the “backlog” in OTE to both OTE staff and to Interim President Engler. As of my last day in the office, a number of incoming reports had been sitting for several weeks without being assigned, and there were numerous cases which were on hold pending advice or guidance from Jayne for a number of weeks. One significant reason for the backlog has been due to Jayne’s inability to review and assign cases in a timely and accurate manner. Jayne’s failure to either recognize or USDOE OCR September 2017 Q&A on Campus Sexual Misconduct: “Question $: What time frame constinutes a “prompt” investigation? Answer: There is no fixed time fame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.” ? RVSM Policy p. 8: “The investigator reviews all of the information and applies the preponderance of the evidence standard to determine whether the conduct at issue occurred and, ifso, whether the conduct constitutes @ violation of ‘the RVSM Policy. Determinations are made based on a totality of the information.” RVSM Policy p. 36: “The University uses a preponderance of the evidence standard during the investigation process..."ELIZABETH K. ABDNOUR acknowledge this major issue has contributed to a situation where, when investigators finally receive case assignments, they are unable from the start to meet the required investigatory timeline. ‘© Jayne has advised investigators not to include the real reasons for going beyond the 60- day timeline in their 60 day notice letters to parties, and has directed investigators not to provide parties with the information that investigations were going beyond 60 days because of investigators’ lengthy caseloads, thus putting investigators in the situation where they were forced to mistepresent information to parties about the status of their investigations and the real reasons for delays in OIE in order to comply with their director's orders.” © Jayne has failed to properly document all investigative steps taken in her files as an investigator, and has failed to include all relevant documentation in files which she has closed. Her failure to properly maintain her files violates intemal OIE procedures, the RVSM policy, and has led to a situation where the files the University is providing to OCR via the requirements in the resolution agreement are incomplete and inaccurate.’ Jayne has provided inaccurate and incomplete information to claimants and reporters with concerns about a faculty respondent, and wrongly advised a reporter that a claimant would have to refile a claim in order for OIE to investigate the matter, leading to a situation in which harassment known to the University went unaddressed. This is a violation of both federal Title IX guidance and University policy.’ © Jayne has failed to properly analyze the required policy elements in making determinations that OTE did not need to investigate certain complaints in which claimants 3 RVSM Poliey p. 36: FRYISUIOCR Reschiton Aseemeatp. “Dy Jan 30, 206, nd these den 2017 and 201, he Universi will submit to OCR copies ofall grievances fled with the University during the 2015-2016, 2016-2017, and 2017- 2018 academic yeas, respectively, that allege sexual or gender-based harassment, assault or violence, Pursuant to this requirement, the University will provide to OCR, for review and approval, documentation related to the investigation of each complaint; such as witness interviews, investigator notes, evidence submitted by the partes, investigative reports and summaries, documentation regarding interim measures provided or offered, any final disposition letters, hearing records, disciplinary records, documentation regarding any appeals, and documentation regarding additional steps taken to stop harassment found to have occured, prevent its recurrence and remedy its effects on complainants and others as appropriate 8 RVSM Policy p. 21: “Choosing to make a complaint, and deciding how to proceed after making @ complaint, can be a process that unfolds over time.... The University can most effectively investigate and respond to alleged relationship violence, stalking, or sexual misconduct ifthe complaint is made as promptly as possible after the alleged violence, stalking, or misconduct occurs. However. the University does not limit the time frame for reporting” joth parties will be provided with regular updates regarding the status of the investigationELIZABETH K. ABDNOUR did not wish to participate, basing the decision solely on the wishes of the claimant and failing to consider the required policy factors. © Jayne has provided inaccurate and incomplete information to four student claimants reporting a concern against the same faculty respondent who stated that they wished to remain anonymous and failed to follow up with those claimants to provide them with the policy and federally required information regarding their options as anonymous claimants. Jayne further failed to notify these claimants that the reason an investigation info their claim was not going forward was because they wished to remain anonymous, and did not provide them with the opportunity to be named and moved forward with an investigation, which they stated they would have done had she told them this information. Jayne’s failure to appropriately advise these claimants and to properly identify this as a situation which may require an investigation led to a situation where the respondent then continued to harass a new, fifth claimant the following academic year. ‘This is a violation of both federal Title IX guidance and University policy.’ ® RVSM Policy p. 29: “Victims of relationship violence, stalking, or sexual misconduct may request confidentiality of anonymity. inching that their name not be shared with the respondent, that the respondent not be notified of the report, or that no investigation occur... ‘The Deputy Title IX Coordinator for Lavestigations will weigh the victim's request for confidentiality or anonymity against the University’s obligation to provide a safe, non-discriminatory environment for all students and employees, including the victim, The Deputy Title IX Coordinator for Investigations will consider a range of factors in weighing the request, including: ©The increased risk that the alleged perpetrator will commit additional acts of relationship violence, stalking, or sexual misconduct, such as: © Whether there have been other relationship violence, stalking, or sexual misconduct complaints about the same alleged perpetrator: © Whether the alleged perpetrator has a history of arrests or records indicating a history of violence; © Whether the alleged perpetrator threstened further relationship violence, stalking, or sexnal misconduct against the victim or ethers © Whether the relationship violence, stalking, or sexual misconduct was committed by multiple perpetrators: and/or © Whether there have been threats to kill or harm the victim. @ Whether the relationship vielence, stalking, or sexual misconduct was perpetrated with a weapon © Whether the victim is a minor © Whether the University possesses other means to obtain relevant evidence of the relationship violence, stalking, or sexual misconduct (¢ ., security eameras or personnel, physical evidence) © Whether the victim’s report reveals a pattem of relationship violence, stalking, or sexual misconduct” 7 USDOE OCR 2011 Revised Sexual Harassment Guidance: “If the student continues to ask that his or her name not bbe revealed, the school should take all reasonable steps to investigate and respond to the complaint consistent with the student's request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students, OCR enforces Title IX consistent with the federally protected due process rights of public school students and employees. Thus, for example, if a student, who was the only student harassed. insists that his or her name not beELIZABETH K. ABDNOUR © Since being named Acting Director, Jayne has incorrectly cited very basic information which should be known by anyone investigating Title IX matters (including the timeline required under OIE and prior OCR guidance to investigate claims, MSU’s requirements under the OCR resolution agreement, and what information should be provided to parties in updates). These errors might be excusable for an investigator, but are cause for serious concern when made by the director of OIE. Jayne has attempted to interfere with NLRA-protected concerted activity. © Jayne has repeatedly forgotten and/or failed to follow up on tasks she was responsible for completing to ensure that investigators were able to move forward in their investigations. Again, this has led to a situation where investigators are unable to comply with federal Title IX and University policy requirements for timeliness in investigations. © Jayne has failed to review OIE responses to FOIA requests, leading to a situation where the only individuals reviewing the information provided to respond to requests were administrative staff members. This has led to a situation where FOIA requests were not reviewed by anyone in OIE with knowledge about specifically what should be included in files to ensure that the public is receiving all of the information necessary via the FOIA. request process. revealed, and the alleged harasser couild not respond to the charges of sexual harassment without that information, in, evaluating the school’s response, OCR would not expect disciplinary action against an alleged harasser. At the same time, a school should evaluate the confidentiality request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. The factors that a school may consider in this regard include the seriousness of the alleged harassment, the age of the student harassed, whether there have been other ‘complaints or reports of harassment against the alleged harasser, and the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result.” USDOE OCR 2017 Q&A on Campus Sexual Misconduct: “Question 6: What constitutes an “equitable” investigation? Answer: In every investigation conducted under the school’s grievance procedures. the burden is on the school—not ‘om the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct hhas occurred and, if so, whether a hostile environment has been created that must be redressed. A person fiee of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on ‘behalf of the school. Schools should ensure that institutional interests do not interfere with the impartiality of the investigation. An equitable investigation of a Title IX complaint requires a trained investigator to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence—including both inculpatory and exculpatory evidence—and take into account the unique and complex circumstances of each case.” RVSM Policy p. 29: “If the claimant continues to ask that their name not be revealed, the University will take all, reasonable steps to investigate and respond to the complaint consistent with the request as long as doing so does not prevent the University from responding effectively to the harassment and preventing harassment of others. Regadless of whether the request for confidentiality is honored, the University will take steps to limit the effects of the alleged relationship violence, stalking, or sexual misconduct and prevent its recurrence when possible..."ELIZABETH K. ABDNOUR © When Ande was the director of OIE, he assigned Jayne the fewest investigations of all senior investigators (jf not all investigators total) and did not assign her ADP investigations due to her lack of skill and knowledge. When I assigned cases for Ande when he was out of the office, he specifically directed me not to assign ADP cases to Jayne — no other directives were provided regarding the assignment of cases to any other investigators. OIE investigators are in a state of constant risk, both legally and professionally, due to the very nature of the job function. This risk has vastly increased with Jayne being named as Acting Director of OIE. OIE’s reputation, which has already been harmed by misinformation in the press, has suffered additional damage due to Jayne’s poor leadership and mismanagement in jjust the past month and a half. In an effort to protect OIE and my colleagues from lasting reputational and professional damage and to address these problems, I have discussed various aspects of the concems above, as well as concems about Jayne’s poor leadership and management, serious issues other investigators and I have observed and leaned about regarding the Kroll investigators, and concerns about possible misconduct and/or unethical actions I was aware of regarding the actions of several other current and former MSU leaders with respect to the University’s Title IX respouse, with the following people: all other investigators in OLE; several friends and mentors 1 have in and outside of the MSU community; Melanie Trowbridge in Academic Human Resources; Lydia Weiss in the WorkLife Office; Jennie Yelvington in Employee Relations; several union leaders with whom T have been communicating regarding the possibility of unionization for senior investigators; former OTE director Ande Durojaiye, as well as Jayne herself; due to my serious concems about how Jayne’s mismanagement and lack of basic Title IX knowledge and skills were severely negatively impacting OIE and its investigators. Additionally, I am alarmed at the fact that I was suspended and banned from speaking with any OIE staff just one day after I leaned that OCR investigators would be visiting OTE, at which point T had stated to a number of OTE staff that I hoped that I would have the opportunity to speak with the investigators to notify them of my concems, and believe T am being retaliated against and silenced not only for being vocal about the many concerns I have repeatedly raised and attempted to address but also for stating that I planned to bring my concerns to the attention of federal investigators I believe the stated reason for my suspension ~ that there are “concems reported relating to [my] conduct and communications in the workplace” — results directly from my efforts to raise my concerns about and address the issnes outlined in this letter. The information I provided in this letter will assist yon with understanding the fall nature and scope of the dysfunction in OTEELIZABETH K. ABDNOUR caused by Jayne leading the office and the drastic nature of the risk both the investigators and the University are exposed to with Jayne acting in her current role. Finally, please provide me with specific information regarding why I have been placed on suspension and why I am being investigated. At present, I am unable to respond to your request regarding when I am available to meet and whether I will be bringing a representative as I do not currently know what I will need to do to prepare for the three hours you and Amy plan to spend with me. All lam able to surmise at present is that I am being retaliated against and silenced for iny efforts to raise and address the concems outlined in this letter. Thus, I need specific information about what allegations you are investigating so that I can determine what I will need to do to prepare for the meeting. Sincerely, Liz Abdnour