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German v. Cardozo

Superior Court of Massachusetts, Middlesex

August 25, 2016

Gustavo German
v.
David Lopes Cardozo et al No. 134630

         Filed August 26, 2016

          FINDINGS OF FACT, RULINGS OF LAW ON PLAINTIFF'S VERIFIED COMPLAINT FOR PROTECTION FROM HARASSMENT

          Elizabeth M. Fahey, Justice

         The following findings of facts are based on the affidavits of the parties, witnesses and counsel and evidence provided during the hearings.

         FINDINGS OF FACT

         Plaintiff 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.[1] 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.

         By an 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.

         Harvard 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, [2] 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, " [3] (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.

         Beginning 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).

         Two 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[4] 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.[5] 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).

         The 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 data.

         The record also reveals the following.

         Rubin 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.

         On May 4, 2016, [6] 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." [7] (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[8] 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.

         On May 10, 2016, two lab members (Muela and Grass)[9] 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.

         Clearly 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 Gustavo." [10]

         Exhibit 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 Gustavo."

         I 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."

         It was 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."

         Cardozo 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 satisfaction.

         By May 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 about German.[11]

         I 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[12] 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.

         I 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.

         In a 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, " [13] 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.)

         Clearly 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.

         On May 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.)

         Since May 10, 2016, Rubin has known of the misconduct allegations and at least suspects, if not believes, German to be the complainant.

         Cardozo 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."

         Cardozo 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.

         Cardozo 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.

         Based 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; [14] until then Cardozo thought he was only dealing with personality differences between German and Rubin and a few others at the lab.

         After 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 cleared up."

         Notwithstanding 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.[15] 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.

         German 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.

         It is 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.[16] By June 3, 2016, Rubin did not have any real fear that plaintiff would sabotage experiments as Rubin acknowledged that he and Dymecki discussed ...


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