UNITED STATES DEPARTMENT
OF EDUCATION
OFFICE FOR CIVIL RIGHTS , R EGION IV
6 1 FO RSYTH ST., SOUTHWEST.
SU ITE 19TIO
ATLANTA.
GA 30303 - 8927

R EG IO N IV

A LAB ,\MA
FLORIDA
GEO R G IA
TENNESSEE

September 13, 2017
l(bX6)
; (bX7(C)

Re: Complaint #04-16-2147
Dea~ (b)(6);(b)(7(C)
5

l

On!(b)( ); (b)(?(C)
the U.S. Department of Education, Office for Civil Rights (OCR), received
your complaint of sex discrimination filed against Motlow State Community Colle e
II r ).
You Complainant) alleged that you were sexually assaulted by a male student o (b)(5); (b)(?(C)
(b)(5);
nd the College failed to provide adequate protective measures for you to remain at the
College and that the College failed to conduct an adequate investigation.
As a recipient of Federal financial assistance from the Department , the College is subject to Title
lX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq, (Title lX) and its
implementing regulation , 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex.
Accordingly , OCR has jurisdiction to inve stigate this complaint. Additional information about the
laws OCR enforces is available on our website at http://www .ed.gov/oc r.
Because OCR has determined that it has jurisdiction and that the complaint was filed timely , it is
opening the se allegations for investigation. Please note that opening the allegation s for
investigation in no way implies that OCR has made a determination with regard to their merits.
During the investigation , OCR is a neutral fact-finder, collecting and analyzing relevant evidence
from the complainant , the recipient , and other sources , as appropriate. OCR will ensure that its
investigation is legally sufficient and is dispositive of the allegations, in accordance with the
provisions of Article III of the Case Processing Manual.
OCR will proceed with an investigation of the following legal issues:
l. Whether the University fail ed to provide a prompt and equitable response to the
Complainant's complaint of sexual harassment thereby subjecting her to a hostile
environment in noncompliance with the Title IX implementing regulation at 34 C.F.R. §§
106.8, l 06.31 .
Under the Freedom of Information Act, it may be necessary to relea se this document and related
correspondence and records upon request. If OCR receives such a request , we will seek to
protect, to the extent provided by law , personal information that, if released, could constitute an
unwarranted invasion of privacy.

 Page 2 of2
OCR f/04-16-2147

The College has been informed that Title VI prohibits recipients from intimidating, coercing,
threatening or discriminating against any individual for the purpose of interfering with any right
or privilege secured by the laws OCR enforces, or because one has made a complaint, or
participated in an investigation in connection with a complaint.
In keeping with OCR 's commitment to resolve allegations of discrimination promptly and
appropriately, Ms. Lewis will communicate with you periodically regarding the status of your
complaint. Please refer to the docket number listed above in any contacts with this office.
If you have any questions , please contact Ms. Lewis, at (404) 974-9332, or me, at (404) 9749376.

Arthur Manigault ,' sq.
Compliance Team Leader

The Departme111
of Ed11ca1
io11's mission is 10promolc s111dc111
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enl and preparalionfor global compeliliveness
by foslering educalional excellence and ensuring equal access.
www.etl.gov

 UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS, REGION IV
6 1 FORSYTII ST. , SOUTHWEST. SUIT E 19TIO
ATLANTA,
GA 3030 3-8927

REGIO N I\'
AL A DAM A
FLO RI DA
GE OR GI A

TENNESSE E

September 13, 2017
Dr. Anthony Kinkel, President
Motlow State Community College
6015 Ledford Mill Road
Tullahoma, TN 37388

Re: Complaint #04-16-2147
Dear Dr. Kinkel:
j (b)(6); (b)(7(C)

I

011
the U.S. Department of Education, Office for Civil Ri hts OCR received
a complaint filed against Motlow State Community College (College) b (b)(5); (b)(?(C)
"''--------.....1
(Complainant), a former student of the College. The Complainant alleged that the College
discriminated against her on ti
·
cifically she alleged that she was sexually
assaulted by a male student o (b)(5); (b)(?(C)
nd the College failed to provide adequate
protective measures for her to remain at the College and that the College failed to conduct an
adequate investigation.
As a recipient of Federal financial assistance from the Department, the College is subject to Title
IX of the Education Amendments of 1972, 20 U.S.C. §§1681 el seq , (Title IX) and its
implementing regulation, 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex.
Accordingly, OCR has jurisdiction to investigate this complaint. Additional information about the
Jaws OCR enforces is available on our website at http://www.ed.gov /ocr.
Because OCR has determined that it has jurisdiction and that the complaint was filed timely, it is
opening these allegations for investigation. Please note that opening the allegations for
investigation in no way implies that OCR has made a determination with regard to their merits.
During the investigation , OCR is a neutral fact-finder, collecting and analyzing relevant evidence
from the complainant, the recipient, and other sources, as appropriate. OCR will ensure that its
investigation is legally sufficient and is dispositive of the allegations, in accordance with the
provisions of Article III of the Case Processing Manual.
OCR will proceed with an investigation of the following legal issue:
1. Whether the College failed to provide a prompt and equitable response to the
Complainant's complaint of sexual harassment thereby subjecting her to a hostile
environment in noncompliance with the Title IX implementing regulation at 34 C.F.R. §§
I 06.8, l 06.31.

 Page 2 of 3
OCR #04-17-1377

Please note that opening the allegations for investigation in no way implies that OCR has made a
determination with regard to their merits. During the investigation , OCR is a neutral fact-finder ,
collecting and analyzing relevant evidence from the complainant , the recipient, and other
sources, as appropriate . OCR will ensure that its investigation is legally sufficient and is
dispositive of the allegations, in accordance with the provisions of Article lII of the Case
Processing Manual.
Please read the enclosed document entitled "lnfonnation about OCR's Complaint Resolution
Procedures," which includes information about:
•

OCR ' s complaint evaluation and resolution procedures;

•

Regulatory prohibitions against retaliation , intimidation and harassment of persons
who file complaints with OCR or participate in an OCR investigation; and ,

•

Application of the Freedom of Information Act and the Privacy Act to OCR
investigations.

OCR intends to conduct a prompt investigation of this complaint. The regulation implementing
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., at 34 C.F.R. § 100.6(c),
requires that a recipient of Federal financial assistance make available to OCR information that
may be pertinent to reach a compliance detennination. This requirement is incorporated by
reference in the Title IX regulation at 34 C.F.R. § I 06.71. Pursuant to the Title VI regulation at 34
C.F.R. § 100.6(c) and the regulation implementing the Family Educational Rights and Privacy Act
(FERPA), 20 U.S.C. § 1232g, at 34 C.F.R. § 99.3 l(a)(3)(iii) , OCR may review personally
identifiable records without regard to considerations of privacy or confidentiality.
Accordingly, OCR is requesting that you forward the following information within 15 days of
the date of this letter. Please note that in this request , the term "correspondence " includes, but is
not limited to, e-mail, meeting notes , interviews, notes of telephone conversations, and all related
memoranda. Electronic submissions are acceptable.
(b)(7)(A)

The Depar tment of Education 's mission is to pr omote student achievement and pr eparation fo r g lobal competitiveness
by f ostering educational excellence and ensuring equal access.
www.ed.gov

 Page 3 of3
OCR 1104-17-1377
(b)(7)(A )

OCR works to investigate allegations of discrimination promptly and appropriately. Please notify
OCR of the name, address, and telephone number of the person who will serve as the College's
contact person during the investigation of this complaint. We would like to talk with this person
as soon as possible regarding the information requested in this letter. In addition, OCR may need
to request add itional information and interview pertinent personnel. If an on-site visit is
determined to be necessary, you will be contacted to schedu le a mutually convenient time for the
visit.
In addition , when appropriate, a complaint may be resolved before the conclusion of an
investigation after the recipient asks OCR to resolve the complaint. In such cases, a resolution
agreement signed by the recipient and submitted to OCR must be aligned with the complaint
allegations or the information obtained during the investigation and it must be consistent with
applicable regulations. Information about this is in the enclosure to this letter.
Under the Freedom oflnformation Act, it may be necessary to release this document and related
correspondence and records upon request. If OCR receives such a request, we will seek to
protect, to the extent provided by law, personal information that, if released, could constitute an
unwarranted invasion of privacy.
Title VI prohibits recipients from intimidating, coercing, threatening or discriminating against
any individual for the purpose of interfering with any right or privilege secured by the laws OCR
enforces, or because one has made a complaint , or participated in an investigation in connection
with a complaint.

If you have any questions, please contact Vicki Lewis, Senior Attomey, vicki. lewis@ed.gov at
(404) 974-9332, or me, at (404) 974-9376.
(b)(6); (b)(7(C)

Arthur Ma111gault
yEsq:---"
Compliance Team Leader
Enclosure

71,e Depart111
e111
of £d11catio11's 111is
sio11is to promote s111d
ent achievement and preparation .for global competitiveness
by .fostering educational excellence a11densuring equal access.
www.ed.go v

 OCR COMPLAINT 'PROCESSING PROCEDURES

LAWS ENFORCED BY OCR

OCR enforces the following laws:
•
•
•
•
•
•

Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the
basis of race, color or national origin;
Title IX of the Education Amendm1::ntsof 1972, which prohibits discrimination on
the basis of sex;
Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on
the basis of disability;
Age Discrimination Act of 1975, which prohibits discrimination on the basis of
age;
Title II of the Americans with Disabilities Act of 1990, which prohibits
discrimination on the basis of disability;
Boy Scouts of America Equal Access Act, part of the No Child Left Behind Act
of 200 l, which prohibits denial of access to or other discrimination against the
Boy Scouts or other Title 36 U.S.C. youth groups in public elementary schools,
public secondary schools, local education agencies, and state education agencies
that have a designated open forum or limited public forum.

EVALUATION OF THE COMPLAINT

OCR evaluates each complaint that it receives in order to determine whether it can
investigate the complaint. OCR makes this determination with respect to each allegation
in the complaint. For example, OCR must determine whether OCR has legal authority to
investigate the complaint; that is, whether the complaint alleges a violation of one or
more of the laws OCR enforces. OCR must also determine whether the complaint is filed
on time . Generally, a complaint must be filed with OCR within 180 calendar days of the
last act that the complainant believes was discriminatory. 1 If the complaint is not filed on
time , the complainant should provide the reason for the delay and request a waiver of this
filing requirement. OCR will decide whether to grant the waiver. In addition, OCR will
determine whether the complaint contains enough information about the alleged
discrimination to proceed to investigation. If OCR needs more information in order to
clarify the complaint, it will contact the complainant ; the complainant has 20 calendar
days within which to respond to OCR ' s request for information.
OCR will dismiss a complaint if OCR determines that:
•
•

OCR does not have legal authority to investigate the complaint;
The complaint fails to state a violation of one of the laws OCR enforces;

' Complaints that allege discrimination based on age are timely if filed with OCR within 180 calendar days
of the date the complainant first knew about the alleged discrimination.
January 20 I 0

 Page 2 - OCR Complaint Processing Procedures
•
•

The complaint was not filed timely and that a waiver will not be granted;
The complaint is unclear or incomplete and the complainant does not provide the
information that OCR requests within 20 calendar days of OCR's request;
The allegations raised by the complaint have been resolved;
The complaint has been investigated by another Federal, state, or local civil rights
agency or through a recipient's internal grievance procedures, including due process
proceedings, and the resolution meets OCR regulatory standards or, if still pending,
OCR anticipates that there will be a comparable resolution process under
comparable legal standards;
The same allegations have been filed by the complainant against the same recipient
in state or Federal court;
The allegations are foreclosed by previous decisions of the Federal courts, the U.S.
Secretary of Education, the U.S. Department of Education's Civil Rights Reviewing
Authority, or OCR policy determinations.

•
•

•
•

OPENING THE COMPLAINT FOR INVESTIGATION

If OCR determines that it will investigate the complaint, it will issue letters of
notification to the complainant and the recipient. Opening a complaint for investigation
in no way implies that OCR has made a determination with regard to the merits of the
complaint. During the investigation, OCR is a neutral fact-finder. OCR will collect and
analyze relevant evidence from the complainant, the recipient, and other sources as
appropriate. OCR will ensure that investigations are legally sufficient and are dispositive
of the allegations raised in the complaint.
INVESTIGATION OF THE COMPLAINT

OCR may use a variety of fact-finding techniques in its investigation of a complaint.
These techniques may include reviewing documentary evidence submitted by both
parties , conducting interviews with the complainant, recipient's personnel, and other
witnesses, and/or site visits. At the conclusion of its investigation, OCR will determine
with regard to each allegation that:
•

There is insufficient evidence to support a conclusion that the recipient failed to
comply with the law, or

•

A preponderance of the evidence supports a conclusion that the recipient failed to
comply with the law.

OCR ' s determination will be explained in a letter of findings sent to the complainant and
recipient. Letters of findings issued by OCR address individual OCR cases. Letters of
findings contain fact-specific investigative findings and dispositions of individual cases.
Letters of findings are not formal statements of OCR policy and they should not be relied
upon, cited, or construed as such. OCR's formal policy statements are approved by a
duly authorized OCR official and made available to the public.

 Page 3 - OCR Complaint Processing Procedures

RESOLUTION OF THE COMPLAINT AFTER A DETERMINATION OF
NONCOMPLIANCE
If OCR determines that a recipient failed to comply with one of the civil rights laws that
OCR enforces, OCR. will contact the recipient and will attempt to secure. the recipient's
willingness to negotiate a voluntary resolution agreement. If the recipient agrees to
resolve the complaint, the recipient will negotiate and sign a written resolution agreement
that describes the specific remedial actions that the recipient will undertake to address the
area(s) of noncompliance identified by OCR. The terms of the resolution agreement , if
fully performed, will remedy the identified violation(s) in compliance with applicable
civil rights laws. OCR will monitor the recipient's implementation of the terms of the
resolution agreement to verify that the remedial actions agreed to by the recipient have
been implemented consistent with the terms of the agreement and that the area(s) of
noncompliance identified were resolved consistent with applicable civil rights laws.
If the recipient refuses to negotiate a voluntary resolution agreement or does not
immediately indicate its willingness to negotiate, OCR will inform the recipient that it
has 30 days to indicate its willingness to engage in negotiations to voluntarily resolve
identified areas of noncompliance , or OCR will issue a Letter of Finding to the parties
providing a factual and legal basis for a finding noncompliance.

a: after the issuance of the Letter of Finding of noncompliance , the recipient continues to
refuse to negotiate a resolution agreement with OCR , OCR will issue a Letter of
Impending Enforcement Action and will again attempt to obtain voluntary compliance.
If the recipient remains unwilling to negotiate an agreement, OCR will either initiate
administrative enforcement proceedings to suspend, terminate , or refuse to grant or
continue Federal financial assistance to the recipient, or will refer the case to the
Department of Justice. OCR may also move immediately to defer any new or additional
Federal financial assistance to the institution.

RESOLUTION OF THE COMPLAINT PRIOR TO THE CONCLUSION OF THE
INVESTIGATION
Early Complaint Resolution (ECR) :
Early Complaint Resolution allows the parties (the complainant and the institution which
is the subject of the complaint) an opportunity to resolve the complaint allegations
quickly; generally , soon after ·the complaint has been opened for investigation. If both
parties are willing to try this approach, and if OCR determines that Early Complaint
Resolution is appropriate, OCR will facilitate settlement discussions between the parties
and work with the parties to help them understand the legal standards and possible
remedies. To the extent possible, staff assigned by OCR to facilitate the Early Complaint
Resolution process will not be the staff assigned to the investigation of the complaint.
OCR does not approve, sign or endorse any agreement reached between the parties as a
result of Early Complaint Resolution, and OCR does not monitor the agreement.
However , if the recipient institution does not comply with the terms of the agreement, the

 Page 4 - OCR Complaint Processing Procedures
complainant may file another complaint with OCR within 180 days of the date of the
original discrimination or within 60 days of the date the complainant learns of the failure
to comply with the agreement, whichever date is later.
Resolution of the Complaint Prior To the Conclusion of an Investigation

.

A complaint may also be resolved before the conclusion of an investigation, if the
recipient expresses an interest in resolving the complaint. If OCR determines that
resolution of the complaint before the conclusion of an investigation is appropriate, OCR
will attempt to negotiate an agreement with the recipient. OCR will notify the
complainant of the recipient's request and will keep the complainant informed throughout
all stages of the resolution process. The provisions of the resolution agreement that is
reached must be aligned with the complaint allegations and the information obtained
during the investigation, and must be consistent with applicable regulations. A resolution
agreement reached before the conclusion of an investigation will be monitored by OCR.
REQUEST FOR RECONSIDERATION OR APPEAL OF OCR'S
DETERMINATIONS

OCR is committed to a high quality resolution of every case. OCR affords an opportunity
to the complainant to submit a request for reconsideration· or an appeal of OCR
determinations that are not in the complainant's favor. The reconsideration and appeal
processes provide an opportunity for complainants to bring information to OCR' s
attention that would change OCR' s decision. The reconsideration and appeal processes
will not be a de nova review of OCR's decision. The specific process for requesting a
review differs depending on the nature of OCR's determination:
Requests of reconsideration of Dismissals:

If the complainant disagrees with OCR's decision to dismiss a complaint for any reason
(e.g., jurisdiction, timeliness, other administrative reasons), he or she may send a request
for reconsideration to the Director of the Enforcement Office that issued the
determination. If the complainant has documentation to support the request for
reconsideration, the documentation must be submitted with the compiainant's request for
reconsideration. In the request for reconsideration, the complainant must explain why he
or she beHeves the factual information was incomplete, the analysis of the facts was
incorrect, and/or the appropriate legal standard was not applied, and how this would
change OCR's determination in the case. Failure to do so may result in the denial of the
request for reconsideration.
In order to be timely, a request for reconsideration (including any supporting
information) must be submitted within 60 days of the date of the dismissal letter. The
Office Director may exercise discretion in granting a waiver of the 60-day timeframe
where :

 Page 5 - OCR Complaint Processing Procedures
l . the complainant was unable to submit the request for reconsideration within
the 60-day timeframe because of illness or other incapacitating circumstances and
the request was filed within 30 days after the period of illness or incapacitation
ended;or
2. unique circ~stances generated by agency action have adversely affected the
complainant.
A written response to a request for reconsideration will be issued as promptly as
possible. The decision of the Director of the Enforcement Office constitutes the agency's
final decjsion with respect to dismissals.
Appeals of Administrative Closures and Letters of Findings:

If the complainant disagrees with OCR' s decision in an investigative determination
(either an administrative closure or a letter of findings) he or she may send a written
appeal to the Deputy Assistant Secretary for Enforcement within 60 days of the date of
OCR' s determination letter. If the complainant has documentation to support the appeal,
the documentation must be submitted with the complainant's appeal. In an appeal, the
complainant must explain why he or she believes the factual information was incomplete ,
the analysis of the facts was incorrect, and/or the appropriate legal standard was not
applied, and how this would change OCR's determination in the case. Failure to do so
may result in the denial of the appeal. Appeals should be sent to:
· Deputy Assistant Secretary for Enforcement
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington , D.C. 20202-1100
In order to be timely, an appeal (including any supporting documentation) must be
submitted within 60 days of the date of the letter of findings or administrative closure
letter. The Deputy Assistant Secretary for Enforcement may exercise discretion in
granting a waiver of the 60-day timeframe where:
l. the complainant was unable to submit the appeal within the 60-day timeframe
because of illness or other incapacitating circumstances and the appeal was filed
within 30 days after the period of illness or incapacitation ended; or
2. unique circumstances generated by agency action have adversely affected the
complainant.

A written response to an appeal will be issued as promptly as possible. The decision of
the Deputy Assistant Secretary constitutes the agency' s final decision with respect to
letters of findings or administrative closure letters.
ADDITIONAL INFORMATION

 Page 6 - OCR Complaint Processing Procedures
Right to File a Separate Court Action

The complainant may have the right to file suit in Federal court, regardless of OCR's
findings. OCR does not represent the complainant in case processing , so if the
complainant wishes to file a court action, he or she must do so through his or her own
attorney or on his or her own through the court's prose clerk's office.

If a complainant alleges discrimination prohibited by the Age Discrimination Act of
1975, a civil action in Federal court can be filed only after the complainant has exhausted
administrative remedies. Administrative remedies are exhausted when either of the
following has occurred:
l) 180 days have elapsed since the complainant filed the complaint with OCR and
OCR has made no finding; or
2) OCR issues a finding in favor of the recipient. If this occurs, OCR will promptly
notify the complainant and will provide additional information about the right to
file for injunctive relief.
Prohibition against Intimidation or Retaliation

An institution under the jurisdiction of the Department of Education may not intimidate,
threaten , coerce, or retaliate against anyone who asserts a right protected by the civil
rights laws that OCR enforces, or who cooperates in an investigation. Anyone who
believes that he or she has been intimidated or retaliated against should file a complaint
with OCR.
Investigatory Use of Personal Information

In order to investigate a complaint, OCR may need to collect and analyze personal
information such as student records or employment records. No law requires anyone to
give personal information to OCR and no formal sanctions will be imposed on
complainants or other persons who do not cooperate in providing information during the
complaint investigation or resolution process. However, if OCR is unable to obtain the
information necessary to investigate a complaint, we may have to close the complaint.
The Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA),
5 U.S.C. § 552, govern the use of personal information that is submitted to all Federal
agencies .and their individual components, including OCR. The Privacy Act of 1974
protects individuals from the misuse of personal information held by the Federal
government. It applies to records that are maintained by the government that are
retrieved by the individual's name, social security number, or other personal identifier. It
regulates the collection , maintenance , use and dissemination of certain personal
information in the files of Federal agencies.
The information that OCR collects is analyzed by authorized personnel within the agency
and will be used only for authorized civil rights compliance and enforcement activities.
However , in. order to investigate or resolve a complaint , OCR may need to reveal certain

 Page 7 - OCR Complaint Processing Procedures
infonnation to persons outside the agency to verify facts or gather additional infonnation.
Such details could include the age or physical condition of a complainant. Also, OCR
may be required to reveal infonnation requested under FOIA, which gives the public the
right of access to records of Federal agencies. OCR will not release any infonnation to
any other agency or individual ex~ept in the one of the 11 instances defined in the
Department's regulation at 34 C.F.R. § 5b.9(b).
OCR does not reveal the name or other identifying infonnation about an individual unless
it is necessary for completion of an investigation or for enforcement activities against an
institution that violates the laws, or unless such information is required to be disclosed
under the FOIA or the Privacy Act. OCR will keep the identity of complainants
confidential except to the extent necessary to carry out the purposes of the civil rights
laws, or unless disclosure is required under the FOIA, the Privacy Act or otherwise by
law.
FOIA gives the public the right of access to records and files of Federal agencies.
Individuals may obtain items from many categories of records of the Federal government ,
not just materials that apply to them personally. OCR must honor requests for records
under FOIA, with some exceptions. Generally, O~R is not required to release documents
during the case evaluation and investigation process or enforcement proceedings, if the
release could affect the ability of OCR to do its job. 5 U.S.C. § 552(b)(7)(A). Also, a
Federal agency may refuse a request for records if their release would result in an
unwarranted invasion of privacy of an individual. 5 U.S.C. § 552(b)(6) and (7)(C). Also,
a request for other records, such as medical records, may be denied where disclosure
would be a clearly unwarranted invasion of privacy.