August 26, 2016
FINDINGS OF FACT, RULINGS OF LAW ON PLAINTIFF'S
VERIFIED COMPLAINT FOR PROTECTION FROM HARASSMENT
Elizabeth M. Fahey, Justice
following findings of facts are based on the affidavits of
the parties, witnesses and counsel and evidence provided
during the hearings.
Gustavo German (" German"), is a fifth-year
graduate student in Biological and Biomedical Sciences
(" BBS") and approximately four months from
finishing his Ph.D. from Harvard Medical
School. He has been employed at the Rubin Lab,
which Lee Rubin (" Rubin"), directs. Rubin also
directs and trains a number of the graduate students employed
at the lab.
email on March 10, 2016 to Drew Faust (" Faust"),
President of Harvard, German raised a complaint of research
misconduct, the knowing publication of fabricated data. In
his complaint to Faust, German alleged this misconduct was
committed by Rubin, Natalia Rodriques Muela ("
Muela") and another Ph.D. candidate, now graduate, whose
publication included the allegedly false data.
has a process to deal with such complaints. On March 24,
2016, German received an email from Gretchen Brodnicki, a
Research Integrity Officer (" RIO") for Harvard
Medical School (" HMS"), indicating that she and
her colleague, Gerald Griffin,  a RIO for the Faculty of
Arts and Science (" FAS"), wanted to meet with
German. In that meeting on March 25, 2016, Brodnicki gave
German an outline of the investigation process; her estimate
was that, after a preliminary investigation, he could be
asked to testify before a panel in about three weeks,
approximately April 15, 2016. German's Fourth Affidavit,
which I credit. His affidavit does not indicate this
occurred. I credit that German was advised by Brodnicki
" to be very confidential about this information and not
report this to others, "  (his complaint to Faust
about the misconduct by Rubin and others) see page 4 of 11
pages of medical records attached to plaintiff's Second
Affidavit as Ex. 17. I also accept German's statement on
that page of Ex. 17 that Ms. Brodnicki had to make an inquiry
to the Principal Investigator (Rubin) about this
investigation which is what caused Rubin to initiate what
plaintiff believes is " Rubin's defamation
campaign" against him.
later in March 2016 and continuing through at least June 4,
2016, the evidence reveals numerous instances when Rubin
willfully and maliciously engaged in a " knowing pattern
of conduct or series of acts over a period of time directed
at" German. G.L.c. 258E, § 3(a).
serious events for German occurred as a direct result of
Rubin's acts. First, a physician, Ayse A. Atasoylu
(" Dr. Atasoylu") (who had never spoken to
plaintiff or his physician), from Harvard University Health
Services (" HUHS"), applied at 11:15 p.m. on
June 3, 2016 for an authorization of temporary involuntary
hospitalization of German pursuant to G.L.c. 123, §
12. It is undisputed that Rubin was the
primary, if not only, source of information on which Dr.
Atasoylu relied on his application. As a result of
Rubin's and HUHS' actions, the police went to
German's home at 1:00 a.m. on June 4, 2016, placed him
into custody and transported him to Cambridge Hospital, where
he spent three hours. He was found " to be of sound
mental health, " " not at imminent risk of
self-harm or harm to others and to not require
inpatient" mental health services. (Letter of Gabby Noy,
DO dated June 4, 2016: To Whom It May Concern and who
evaluated German at Cambridge Hospital).
second event, also with unfortunate consequences for German,
is that after he was found to be of sound mental health,
David Cardozo (" Cardozo"), Associate Research Dean
for Graduate Students at HMS, emailed German on June 6, 2016
informing him that he " cannot return to [Rubin's]
lab until the adversarial situation that currently exists is
completely cleared up." Claiming that he " only
want[ed] the best for" German, Cardozo barred German
from the lab or accessing lab data until " we have a
resolution." Cardozo took this action after speaking
with Rubin. The unfortunate effect for German is that he
remains effectively precluded from finishing both his
research and his Ph.D., or even accessing his three years of
record also reveals the following.
claims in his affidavit at ¶ 24 that in early 2016
German appeared " uncharacteristically disheveled and
exhausted, " and " his relations with other members
of the lab became increasing tense." I do not credit
that Rubin took this too seriously as if it occurred and were
concerning to him, he would, as German's Principal
Investigator (" PI"), have said or done something
about it. Other emails and affidavits do not support
Rubin's claim. The emails do support that by April 6,
2016, German complained in an email to Rubin of Rubin's
" misconduct towards [German]" (Ex. 2 to
defendants' counsel's affidavit) and German was
looking for Rubin's assistance with regard to other lab
members including Tobias Grass (" Grass") and Chen
Benkler (" Benkler"). Then on April 21, 2016, Rubin
and German met with HMS Ombudsperson Melissa Brodrick about
how to correct the problems German faced with three lab
members. They later agreed to meet with those lab members,
though that never occurred.
4, 2016,  RIO Griffin and Professor Peter
Ellison (" Ellison"), both on the Committee for
Professional Conduct (" CPC"), finally met with
Rubin; Rubin claims that " until that meeting, I was
entirely unaware of any allegations against me."
(44 of Rubin Aff., dated July 4, 2016.) On May 10, 2016,
Muela and Rubin met Griffin and Ellison and received a
redacted copy of German's March 10, 2016 email to
Faust with German's identity redacted. Notwithstanding
the redactions, Rubin suspected that " German might be
behind the allegations of research misconduct against
[him]." (¶ 48 of Rubin's Affidavit.) I credit
that whenever Rubin first learned of the allegations of
misconduct against him, he suspected German was involved.
10, 2016, two lab members (Muela and Grass) contacted Dr.
William Lensch (" Lensch"), Executive Director of
the Department of Stem Cell and Regenerative Biology, the
Department to which the Rubin Lab belongs. Although the
identity of those two members is known to Harvard, and likely
known by Cardozo and Rubin, they have not identified those
lab members to this court. Defendants' counsel provided
Lensch's May 11, 2016 email (Ex. 5 to Defendant's
Affidavit of Counsel) to Cardozo, Garth McCavana and Allen
Aloise, both of FAS, but not Rubin, in which Lensch reports
the concerns two lab members had expressed to him. He
indicated that " over the past week the members of a lab
in SCRB have come to me with serious concerns about the
erratic and threatening behavior of another lab member who is
a BBS student. The faculty member [Rubin] is among the
concerned parties. Yesterday at 5:00 p.m. two lab members
[Muela and Grass] came to me abruptly and expressed serious
concerns for their personal safety, the self-welfare of the
student and fear of sabotage." I accept that the faculty
member to whom Lensch refers is Rubin, the Director of the
Rubin Lab. I also accept that Muela and Grass, who expressed
to Lensch concern about German, did so at Rubin's
instigation and direction as Rubin at least suspected German
to be the complainant. I accept that Muela and Grass
complained on May 10, 2016 to Lensch after Muela had
been at the meeting earlier in the day with Rubin, Griffin
and Ellison. Clearly that day Muela and Rubin both suspected,
if not believed, that German was the source of the claim that
they had knowingly allowed false data to be published.
Lensch's email concerned German. Cardozo's response
three hours later on May 11, 2016 (Ex. 6 to Affidavit of
Counsel) stated, after speaking with the lab manager, "
while there are real concerns about Gustavo, they don't
consider him an immediate threat. I'll be speaking with
Lee Rubin (PI) tomorrow and then will get together with
10 of Defendants' Counsel's Affidavit includes a long
note (unclear if it is an email) dated May 11, 2016 from
Grass concerning his work with German at the lab over the
past three months. He claimed that about two months prior,
i.e., approximately March 11, 2016, German totally changed
his behavior towards him. He wrote that German was then
telling him that " Rubin was trying to manipulate me to
turn me against Gustavo." He added " just for the
record, I would like to mention that Prof. Rubin never ever
tried to manipulate me to change my behavior toward
credit Cardozo's testimony that on approximately May 11,
2016, he received an email from Allen Aloise, Dean of
Administration and Finance, that stated he had received an
email from the administrator, William Lensch, at Rubin's
lab, which Aloise oversees, expressing concern by one or two
lab members (i.e., Muela and Grass) that plaintiff was "
acting strangely" and that " there had been an
abrupt change in his behavior." Cardozo "
forgets" the name of the person he called to get more
information but was told plaintiff was " paranoid."
Though it may well be Rubin that he called, I decline to draw
the inference. This caused Cardozo to call HUHS on May 12,
2016 to see if plaintiff has a doctor/counselor there and if
Cardozo should be concerned. Cardozo was informed that
plaintiff does see a doctor there for ADHD. Cardozo also
called Barbara Lewis (" Lewis") (head of HUHS
mental health) who advised him that German is fine, has no
" red flags, " has a therapist who Cardozo asked to
check in with German to see if he is alright. Cardozo also
spoke with the Rubin Lab Administrator, Jane LaLonde ("
LaLonde"), who said plaintiff is " odd sometimes in
his behavior but nothing requiring immediate action, no
danger to himself or anyone."
after this that Cardozo phoned German to be sure he is okay.
German said he was fine; Cardozo was satisfied he was fine
and they agreed to meet. When they met on May 13, 2016,
Cardozo found German to not be in any distress, though upset
at his lab schedules. This meeting went fine and ended with a
" group hug."
emailed Rubin and the others at Harvard who knew of this
issue. Cardozo advised them that plaintiff is " alright,
not a threat, and would build bridges with his lab
colleagues." Cardozo thought the problem with German
" was solved." All but Rubin expressed relief and
11, 2016, Cardozo had " followed up with all the folks
involved including HUHS (Harvard University Health Services)
and Gustavo and there [did not] appear to be an immediate
concern." Cardozo met with German and Susan Dymecki
(" Dymecki") on May 13, 2015 which he reported the
next day to others including Rubin (Ex. 18 to Defendants'
Counsel's Affidavit), Cardozo wrote: " Our meeting
with Gustavo was very positive. While Gustavo has clearly
been under a great deal of stress, he doesn't present a
danger to himself or others. In addition, he has no intention
of disrupting other lab members' experiments. He
understands that his recent behavior has not been in
accordance with good lab working protocols and that it's
harming his own development as a scientist . . ." On May
12, 2016, Cardozo and Rubin spoke by phone concerning
complaints made by Muela and her boyfriend, Grass, to Lensch
accept that plaintiff's psychiatrist, Dr. Arash Ansari,
M.D., telephoned German on May 13, 2016 at 2:25 p.m. after
Dr. Ansari had been contacted about German by Cardozo.
Cardozo led Ansari to believe plaintiff " was going
through some sort of mental crisis that required urgent
intervention." (Plaintiff's Sixth Affidavit, page
8.) Dr. Ansari inquired of plaintiff about his mental health.
When plaintiff said he was fine, Dr. Ansari expressed that he
could " not believe Cardozo could have made such an
inquiry about my mental health if it were
unsubstantiated." It was this call revealing
Cardozo's concern about plaintiff's mental health
that caused German, on May 13, 2016, to believe
Cardozo and Rubin " intend[ed] to
defame [him] and retaliate against [him] after [he] raised
the research misconduct complaint." At all times
thereafter, whatever concerns Cardozo had been told by
others, including Rubin, about plaintiff's mental health,
were allayed by Cardozo's own subsequent personal contact
with plaintiff. I accept that German's legitimate fear of
Rubin's " defamation campaign" against him is
what caused German to stop attending Harvard by May 21, 2016.
accept that German, prior to June 4, 2014 was already fearful
that Grass, a bodybuilder, would cause a physical
confrontation with German, a very slight individual, even
though German did not then know that Grass had already acted
at Rubin's direction, when he complained to Lensch.
May 14, 2016 email (Ex. 19), Cardozo reported to Lewis that
in his Friday, May 13, 2016 meeting, German " although
under a great deal of stress, seemed completely reasonable
and aware of his situation, "  and was "
going to try to work things out with the lab members with
whom he's fallen out." Lewis replied that
plaintiff's psychiatrist thought German was doing okay
and he did not find any paranoia (in German). (Ex. 19.)
by May 14, 2016, excluding Rubin, all those at Harvard
dealing with German were satisfied that his mental health is
not concerning, at least not immediately concerning.
19, 2016, Rubin sent Cardozo the email German sent on May 18,
2016 to Rubin which Rubin thinks was "
confrontational" and Cardozo thinks was " unusual
in tone" for a grad student. In the email, German sought
mice for his research and more (than the two he had)
assistants for help with his experiments. When Rubin received
German's May 18, 2016 email, he wrote to Cardozo and
Dymecki that he " had discussions with several members
of my lab."
I guess my position for now, based on my discussions with
several members of my lab, is that I honestly can't risk
a situation in which multiple people (at least 6) feel
concerned and unsafe in the lab. I also think Gustavo is
unhappy and likely to remain that way in that I won't
want to provide a solution that's positive for him and
negative for everyone else. I still think he believes that
I've caused all of his problems and therefore can fix
them without any acknowledgement from him that he has at
least contributed to them and may change in his behavior
towards others in the lab. I can't emphasize enough that
none of these problems, or any other problems in the lab, did
exist or would have existed in his absence. (See Ex. 25 to
Defendants' Counsel's Affidavit.)
May 10, 2016, Rubin has known of the misconduct allegations
and at least suspects, if not believes, German to be the
reached out to German and Dr. Dymecki, Prof of Genetics, for
a second meeting, likely on May 20, 2016, which was very
collegial. German had also been working with an ombudsperson
who did not propose the same plan Cardoza had suggested.
Cardozo then suggested that all four meet together, which was
initially agreed upon. German later cancelled that meeting
and other meetings. Plaintiff told Dymecki he did not want to
communicate with anyone except Faust. On May 25, 2016.
Cardozo emailed plaintiff that " I just want to make
sure you are alright." German responded, " David, I
am alright. Thank you for your concern."
left on May 27, 2016 for vacation, having provided names if
any " health-related assistance with Gustavo" was
needed. (Ex. 37 to defendants' counsel's affidavit.)
Cardozo left for vacation, having notified Dean McCavana,
Dumecki, Leah Simons, and Jackie Yun, Head of Student
Services, but not Rubin.
described that the PI for any grad student, including Rubin
and his Rubin Lab, has " discretion in all
decisions." He denied giving German an example of a
Harvard PI being able to back out/dismiss a grad student
based on his/her hair color. I accept that at least Rubin, as
PI for plaintiff and a number of grad students and because he
is head of the Rubin Lab, brings in a lot of funding and has
a lot of authority at Harvard. So much authority that Cardozo
would likely be deferential and not interfere with
Rubin's choice to dismiss a grad student.
on complaints to him made by German and others about
conditions at the Rubin Lab, Cardozo has twice consulted with
German's Dissertation Advisory Committee ("
DAP"), once at the beginning of May and the second,
later in May. Cardozo also consulted with Dean McCavana about
German as well as about other grad students at other times;
in all cases but this one, he has always found a resolution.
Cardozo did not know until June 8, 2016, when he was served
with German's complaint in this case, that plaintiff had
made a claim of Rubin's scientific misconduct;
 until then Cardozo thought he was
only dealing with personality differences between German and
Rubin and a few others at the lab.
he returned from vacation and learned on June 6, 2016 of
German's June 4, 2016 hospitalization, Cardozo wrote to
him. German responded formally, informing Cardozo that he
would " not attend Harvard until these serious matters
are resolved." It was in response to this that Cardozo
informed German that he " cannot return to [Rubin's]
lab until the adversarial situation that currently exists, is
defendants' claims and the affidavits of five lab
members, including Muela, Grass and Benkler, that some were
concerned regarding whether German was " unpredictable,
could manipulate experiments, fear of sabotage or harm to
those in the lab, " plaintiff provides excerpts in his
affidavits of emails from other lab members which do not
evidence any such concern. In his Fifth Affidavit
dated July 5, 2016, plaintiff also provides excerpts of
emails from lab members who had good relations with him and
do not appear to have any concerns in working with him.
also provides in his Fifth Affidavit at p. 7 text messages
sent to him on June 3, 2016 from freshman Alex Pai ("
Pai"), seeking to get together. Plaintiff responded:
Hi Alex, unfortunately, due to personal matters I'm off
from school. I don't know when I'm coming back.
Meanwhile, you have to find another mentor. I highly
recommend you to contact Becca (Rebecca Gibbs) for a mentor
since she is a very bright scientist (mentored by me) and she
was interested in having an undergraduate. This is the most I
can do for you at the moment. I'm very sorry about this.
My best, Gustavo.
unclear if Rubin actually saw or received plaintiff's
actual text to Pai. Rubin's Paragraph 58 in his affidavit
does not clarify this. German's first response, "
While due to personal matters, I'm off from school. I
don't know when I'm coming back, " could in some
situations indicate the possibility of self-harm. However,
the context of German's entire text plus his direct
response to Pat's second inquiry, " Are you okay?,
" " I'm okay, Alex please don't worry about
me, " would likely leave one relatively unconcerned.
Certainly any concern could have been clarified by a phone
call, text or even email to German, as Dymecki had suggested
that very day to Rubin. Instead, what Rubin did on June 3,
2016, was to contact Brodrick and Dymecki and mention only
his concern about plaintiff's absence from the lab and
the possibility that plaintiff accessed the lab at night when
no one was there. By June 3, 2016, Rubin did not have
any real fear that plaintiff would sabotage experiments as
Rubin acknowledged that he and Dymecki discussed ...