MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS RUBIN
AND PRESIDENT & FELLOWS OF HARVARD COLLEGE'S MOTIONS
Elizabeth Fahey, Justice
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").
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forcibly withdrawn as a student.
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.
August 25, 2016, German obtained a harassment
prevention 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.
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.
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
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
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.
Harvard's Alleged Conduct
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,
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.
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.
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.
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.
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
Rubin's Alleged Conduct
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, "  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.
Allegations against the Defendants ...