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German v. Rubin

Superior Court of Massachusetts, Middlesex

July 14, 2017

Gustavo German
v.
Lee L. Rubin et al. [1]

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS RUBIN AND PRESIDENT & FELLOWS OF HARVARD COLLEGE'S MOTIONS TO DISMISS

          Elizabeth Fahey, Justice

         INTRODUCTION

         Pursuant to Mass.R.Civ.P. 65.3, the pro se plaintiff, Gustavo German (" German") then a fifth-year doctoral candidate at Harvard, filed a Verified Complaint for Civil Contempt (" Complaint") on June 14, 2017. German previously obtained a harassment prevention order issued pursuant to G.L.c. 258E against Dr. Lee L. Rubin (" Rubin") on August 25, 2016, in which this court directed that German be fully restored to the position he occupied in Rubin's lab (" the Rubin Lab") as of March 10, 2016, before the harassment began. That order was amended on September 9, October 4 and 14, and December 5, 2016, after repeated requests by defendants Rubin and President & Fellows of Harvard College (" Harvard, " together with Rubin, " the defendants").

         German's Complaint alleges, generally, that the defendants violated several directives contained in the most recent Revised Order dated December 5, 2016 (" Order"), and as a result (1) German has not yet been restored to the position he was in prior to the harassment, (2) he has been prevented from completing his research and thesis, and (3) he has now been forcibly withdrawn as a student.

         Before the court are Rubin's and Harvard's separate motions to dismiss the Complaint. After hearing and careful review of the parties' submissions, both motions are ALLOWED in part and DENIED in part.

         PROCEDURAL HISTORY

         On August 25, 2016, German obtained a harassment prevention[2] order against Rubin following German's report of Rubin's research misconduct, i.e., his knowing publication of fabricated data. Rubin is a tenured professor at Harvard and the primary investigator (" P.I.") of the Rubin Lab, the facility in which German works while pursuing his Ph.D. The resulting August 25, 2016 harassment prevention order consisted of two directives. First, Rubin was to stay at least 100 feet away from German and have no contact, direct or indirect, with him. Second, German was " to immediately be fully restored to his position and research in the Rubin Lab with all the assistance, equipment, and supplies he had on March 10, 2016." See Paper No. 19, p. 27.

         Both Rubin and Harvard filed motions seeking to vacate or modify the Order citing the impracticalities of implementation in both the academic and lab environments. See Paper Nos. 22, 31, 47, 51, 55, 62, 63, and 114. These motions led to several hearings before this court in the fall of 2016 and an interlocutory appeal, which resulted in some modification of the original August 25, 2016 Order. As the court stated in its October 17, 2016 Memorandum and Order, it " made substantial efforts to fashion an order that appropriately satisfied Defendant Rubin for the harm he caused Plaintiff and to restore Plaintiff as much as possible to the position he was in at the Rubin Lab . . ." See Paper No. 58, p. 1. Throughout the parties' interactions with this court, this court's oft repeated goal remained clear and unchanged: to return German to the status quo he enjoyed as of March 10, 2016, and allow him to complete his research, thesis, and his Ph.D.[3]

         The last Revised Order was issued on December 5, 2016, and states " [p]laintiff be immediately and fully restored to and remain in his position in the Rubin Lab, with all the assistance, equipment, and supplies he had on March 10, 2016" and that " Mr. German shall remain working in the Rubin Lab, supervised by the [sic] Dr. Rubin, though all physical meetings shall include a third party . . ." It states, further " [w]ithin 48 hours, defendant Rubin is to release to Harvard . . . whatever funds are necessary to provide plaintiff with the same resources he had on March 10, 2016, i.e., two . . . research assistants he had been approved for and then had, and the S.M.A. mice . . . necessary for his research." It also directs that " [p]laintiff's key card access to the Rubin Lab is not to be disturbed or withdrawn and is to remain in full force and effect."

         The Order also provides guidelines for the limited meetings between Rubin and German that the parties previously explained were necessary. The Order states " all physical meetings shall include a third party, which shall be one of those listed by German, all of whom Harvard accepts and [Rubin] does not oppose. As no meeting between German and Rubin occurred between 10/14/16-11/30/16, their meetings are not to occur more than every six weeks, absent any emergency or good cause. Besides this physical contact in the presence of a third party, all other contact between German and Rubin shall be by email, text messages or Lab meetings as described above."

         BACKGROUND

         When deciding a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), the court reviews the motion in accordance with the principles articulated in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). As such, the court accepts the allegations of the Complaint as true. Spinner v. Nutt, 417 Mass. 549, 550, 631 N.E.2d 542 (1985). German's Complaint alleges that Harvard and Rubin have violated the terms of the Order, as follows.

         I. Harvard's Alleged Conduct

         German alleges that Harvard took actions to contravene the Order's directive that German be " immediately" and " fully restored to and remain in his position and research in the Rubin lab . .., " by (1) revoking his key card access to certain research facilities; (2) instituting administrative proceedings against German for failing to attend his Dissertation Advisory Committee (" DAC") meeting; and (3) withdrawing him as a graduate student at Harvard based upon the same refusal to attend the DAC meeting without leave of court. Compl., at pars. 42, 55, 62.

         Concerning his academic suspension and withdrawal from the Ph.D. program, German alleges the following. On March 2, 2017, German's program advisors requested that German hold a DAC meeting. Id. at par. 16. On March 3, 2017, German agreed to attend the DAC meeting scheduled for March 30, 2017, on the condition that Sheila Thomas, whom Harvard had designated as German's interim thesis advisor even though her field appears very different from German's, not attend as German believed the Order required Rubin to be his thesis advisor. Id. at par. 17. On March 6, 2017, the program administrators informed German " as a condition for the DAC meeting that German accept to have a new thesis advisor in Rubin's stead." Id. at par. 18. German rejected the condition and refused to attend the DAC meeting, stating it would violate the Order that he was to be " supervised by Dr. Rubin." Id. at par. 19. On March 10, 2017, German emailed his DAC, the program advisors, and Rubin (through counsel), objecting to the requirement that Rubin be replaced as his thesis advisor and expressing his concern that it violated the court's Order. Id. at par. 20. German further alleges that he was concerned that replacing his thesis advisor may have altered the already approved schedule for completing his research. Even if the new thesis advisor were not acting in bad faith, " he or she may have a different scientific understanding (or misunderstanding) than the one German agreed [to] with Rubin and his DAC." Id. at pars. 25-27.

         In response, the defendants both denied that the court ordered Rubin to be German's thesis advisor. Id. at par. 31. German alleges he was then threatened with administrative proceedings by Dean Garth McCavana if he would not agree to hold the DAC and replace his thesis advisor. Id. at par. 32. On March 30, 2017, German again emailed his program advisors and Dean McCavana stating his objection to holding the DAC meeting " to assign German a new thesis advisor" and his belief that doing so would violate the Order. Id. at pars. 31-32.

         On April 6, 2017, Harvard, through Dean McCavana, initiated administrative proceedings against German and threatened him with academic probation. Id. at par. 34. On April 25, 2017, Harvard placed German on academic probation. Id. at par. 35.

         On May 4, 2017, German filed an Emergency Motion for an Order Disallowing Lee L. Rubin and/or Any Employee at Harvard Corporation to Initiate Administrative Proceedings Against Plaintiff Unless Prior Leave is Granted by the Court. Id. at Par. 37. See Paper No. 105. On May 10, 2017, Harvard filed a written request for hearing with this court, requesting a hearing " at the earliest practicable time." See Paper No. 107.2. German alleges that Harvard's counsel intentionally did not call the clerk's office, as is customary, to schedule a hearing on an emergency basis. Compl. at pars. 39-41. No hearing was held on German's emergency motion until May 31, 2017.

         On May 16, 2017, without waiting for the court to schedule a hearing on German's emergency motion, Harvard withdrew German from his graduate program and disaffiliated him from the university. Id. at par. 42. Once Harvard withdrew German from the program, it notified the Department of Homeland Security of German's disaffiliation, as German's legal presence in the United States is solely based on his student visa, which was rendered inoperable by Harvard's having withdrawn him. Although Harvard has invited German to reapply, Harvard and its faculty have told German that he is no longer a student at Harvard and have denied him access to the facilities he needs for his research, his mouse colony, and the animal testing facility. Id. at pars. 58, 59, 64, 68, 69, and 73.[4]

         II. Rubin's Alleged Conduct

         German alleges that Rubin has failed to fully restore him to his position at the Rubin Lab or supervise his work, and as a result, he has been unable to continue and complete his research. Specifically, Rubin has held lab meetings without including German, as contemplated in the Order. Id. at par. 79 . Rubin refuses to supervise German, act as German's " thesis advisor, " [5] and attend his DAC meetings. Id. at par. 78. Finally, Rubin has not released any of the funds he was ordered to release to Harvard " to provide plaintiff with the same resources he had on March 10, 2016." Id. at par. 77.

         III. Allegations against the Defendants ...


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