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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 PLAINTIFF'S EMERGENCY MOTION FOR AN ORDER DISALLOWING ADMINISTRATIVE PROCEEDINGS

          Elizabeth Fahey, Justice

         INTRODUCTION

         The pro se plaintiff, Gustavo German (" German"), obtained a harassment prevention order, pursuant to G.L.c. 258E, on August 25, 2016. The most recent revision of that order was issued on December 5, 2016. See Paper No. 78.

         Before this court is German's Emergency Motion for an Order Disallowing Lee L. Rubin and/or Any Employee at Harvard Corporation to Initiate Administrative Proceedings Against Plaintiff without Leave of Court (" Motion"). For the reasons below, the Motion is ALLOWED nunc pro tunc to May 4, 2017.

         PROCEDURAL BACKGROUND

         The Motion was filed on an emergency basis on May 4, 2017, after German was put on notice that administrative proceedings were underway, which could lead to his ultimate removal from Harvard as a Ph.D. candidate. President & Fellows of Harvard College (" Harvard") and Lee L. Rubin (" Rubin") filed a response and opposition to the Motion on May 11, 2017. Harvard filed a written request for hearing, but did not call the court to obtain a hearing on an expedited basis. A flurry of additional motions and oppositions were filed in the two weeks following May 10, 2017 related to Harvard's withdrawal of German, and a hearing was held on all such motions on May 30, 2017. As concerns the instant Motion, following the hearing, this court declined to act, writing a margin order that states, " This Court was first alerted by the RAJ on 5/30/17 to participate in the hearing scheduled for 5/30/17, by which time Harvard had already acted. No action taken at this time." The action to which the order referred was Harvard's withdrawal of German from the university on May 16, 2017.

         This court now takes up German's Motion.

         FACTUAL BACKGROUND [2]

         On December 5, 2016, this court issued its most recent revision of the harassment prevention order in this case. See Paper No. 78 (" Order"). It provided, in relevant part, that German was to " immediately be fully restored to and remain in his position and research in the Rubin Lab, " and that " German shall remain working in the Rubin Lab, supervised by [ ] Dr. Rubin." See id. at pars. 2, 3.

         On March 2, 2017, German's program advisors requested that German hold a Dissertation Advisory Committee (" DAC") meeting. On March 3, 2017, German agreed to hold the DAC meeting on March 30, 2017, on the condition that Sheila Thomas, whom Harvard had designated as German's interim thesis advisor, not attend as German believed the Order required Rubin to be his thesis advisor. 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." German rejected the condition and refused to attend the DAC meeting, stating it would violate the court's Order that directed he was to be " supervised by Dr. Rubin." 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. German was also concerned that replacing his thesis advisor may alter 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."

         In response, Harvard and Rubin both took the position that the court had not ordered Rubin to be German's thesis advisor. Dean Garth McCavana then told German if he would not agree to hold the DAC, and replace his thesis advisor, German would face administrative proceedings and possible withdrawal from the university. 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.

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

         On May 16, 2017, following the filing of the instant Motion, and without waiting for the court to schedule a hearing, Harvard withdrew German from his graduate program and disaffiliated him from the university. Although Harvard claims in open court that it has invited German to reapply, Harvard and its faculty have told German he is no longer a student at Harvard and have ...


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