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Ellis E. v. Finn F.

Appeals Court of Massachusetts, Middlesex

November 8, 2019

ELLIS E.
v.
FINN F. [1] (and a companion case [2] ).

          Heard: December 4, 2018.

          Complaint for protection from harassment filed in the Superior Court Department on June 8, 2016. The case was heard by Elizabeth M. Fahey, J.

          Michael R. Byrne & Robert J. Cordy for the defendant.

          Ellis E., pro se.

          Daniel J. Cloherty for President and Fellows of Harvard College.

          Present: Meade, Agnes, & Englander, JJ.

          AGNES, J.

         The defendant and his employer, Harvard University (university), appeal from civil harassment prevention orders issued pursuant to G. L. c. 258E, § 3 (a.) .[3] This case presents another opportunity for us to clarify the requirements for obtaining relief under that statute, [4] as well as the scope of relief that is available. The plaintiff was a fifth-year graduate student in the Ph.D. program in the biological and biomedical sciences program (BBS program) at the university. The defendant is a professor and the director of the plaintiff's research laboratory (lab) at the university.

         The case involves the plaintiff's relationship with the defendant and other lab members. The plaintiff sought a c. 258E harassment prevention order against the defendant in June of 2016, alleging a series of actions described more fully in the discussion section, infra. In August of 2016 a Superior Court judge found that the defendant had met the standards for harassment under G. L. c. 258E, and entered a harassment prevention order against him; in addition, the judge ordered that the plaintiff "immediately be fully restored to his position and research . . . with all [his] assistance, equipment, and supplies." Thereafter the judge entered six more orders directed to the plaintiff's relationships with the university, culminating in an order that the university, among other things, "vacate" the plaintiff's withdrawal from the university and "restore" the plaintiff's status as a graduate student. Because the evidence does not support the conclusion that the plaintiff was harassed by the defendant, as defined by c. 258E and subsequent case law, and because the expansive relief ordered by the Superior Court judge far exceeded that authorized by the statute, we vacate the harassment prevention orders.

         1. Background.

         a. Facts.

         There are two overarching but interrelated factual narratives. The first is that on March 10, 2016, the plaintiff filed a confidential complaint with the president of the university alleging research misconduct by the defendant and other lab members. The second is that at roughly the same time, if not before, the plaintiff's relationships with at least some of his fellow lab members became acrimonious, which eventually led to serious disruptions within the lab.

         As to the research misconduct complaint, the plaintiff alleged the knowing publication of false data by the defendant and two other Ph.D. candidates. In accordance with the university's process for investigating such complaints, two university officials met with the plaintiff on March 25 concerning his allegations. The defendant did not become aware of the complaint until May 4, when university officials advised him that he was the subject of an inquiry into allegations of research misconduct. Although the defendant was not advised that the plaintiff was the complainant, the defendant suspected that the complainant was the plaintiff. The university's investigation did not substantiate the plaintiff's allegations; this fact was communicated to the defendant on or around May 16.

         From March through June of 2016, the plaintiff's relationship with the lab, and the lab members, deteriorated significantly. The plaintiff wrote an e-mail to the defendant on April 6, 2016, in which he described hostile interactions between himself and three different lab members, which at that point had been occurring for at least several weeks. The plaintiff's complaints included that other lab members had called him "immoral" and a "hypocrite," and that he had been accused both of lying about a potential collaboration and of trying to steal a lab member's research assistant. The plaintiff also stated in this e-mail that some lab members had stopped communicating with him altogether. On April 21, the plaintiff and the defendant met with a university ombudsperson to discuss ways to alleviate the tensions. The meetings were initially considered positive and plans were made for a future meeting between the plaintiff and the other lab members, but the plaintiff later declined a joint meeting, and relations did not improve.

         In granting the c. 258E order, the judge found five acts of harassment. The first two were based on the following. In early May, around the time when the defendant definitively learned of the research misconduct allegations, the defendant met with two of the lab members whom the plaintiff had accused of acting hostile toward him; both of these lab members also had been accused of involvement in the defendant's research misconduct. The judge found that on May 10, at the defendant's suggestion, the two lab members spoke to William Lensch, the executive director of the department of stem cell and regenerative history, and expressed concerns about the plaintiff's behavior -- including concerns regarding the plaintiff's welfare, their personal safety, and the potential sabotage of their work. The judge found that the defendant's suggestion that the lab members speak with Lensch was the first act of harassment. Later on May 10, the defendant spoke with Lensch regarding the plaintiff, and expressed his own concerns about the plaintiff's erratic behavior. The judge found that this conversation was the second act of harassment. The judge also found that these acts were done maliciously with the goal of intimidating and discrediting the plaintiff.

         These May 10 conversations with Lensch started a series of communications among several university administrators, and culminated in a meeting between the plaintiff; David Cardozo, the associate dean for graduate studies; and Susan Dymecki, the head of the BBS program.[5] The meeting was reportedly productive, but any positive effects were short lived. On May 18, the plaintiff sent an e-mail to the defendant and ombudsperson Melissa Brodrick, in which the plaintiff requested that future meetings with his fellow lab members be supervised, that he receive lab mice for his experiments, and that he receive additional research assistants. The defendant believed that the tone of the e-mail was confrontational. He informed Cardozo and Lensch of the e-mail and indicated he was still concerned about the plaintiff's behavior. The plaintiff, Cardozo, and Dymecki had another meeting on May 20 to discuss the situation -- plans were made to meet again on May 25.

         On May 21, the plaintiff stopped coming to the lab altogether; he canceled the May 25 meeting with Dymecki and Cardozo, he canceled a meeting with the defendant, and he canceled an appointment with his psychiatrist at the university health services (HUHS). Following the cancelations, Dymecki and Cardozo contacted the plaintiff out of concern for his welfare. The plaintiff informed them that he was "alright," but that he would only be "dealing with the [o]ffice of the [p]resident"[6] for now. He requested that Dymecki and Cardozo refrain from contacting him.

         The judge found that the defendant's actions on June 3, 2016, formed the basis of the third, fourth, and fifth harassing acts against the plaintiff. Over the course of the afternoon on June 3, the defendant reached out to Dymecki and others to express alarm at the plaintiff's "hostile and erratic behavior."[7] That evening at 8:27 P..M., after deliberating as to the best course of action, the defendant suggested to Dymecki that they should "get advice from a mental health professional." The judge found that this suggestion from the defendant to Dymecki was the third act of harassment. After Dymecki contacted HUHS at the defendant's request, a clinician from HUHS called the defendant twice on the evening of June 3. The defendant told the HUHS clinician that the plaintiff was exhibiting increased paranoia and ideation and that the plaintiff had abruptly canceled several meetings, and the defendant recounted the plaintiff's conflicts with other lab members. The judge found these two telephone calls to be the fourth and fifth harassing acts.

         At 11:15 £.M. on June 3, Dr. Ayse Atasoylu, a physician at HUHS, authorized the temporary involuntary hospitalization of the plaintiff pursuant to G. L. c. 123, § 12. That authorization was based on information provided to Atasoylu by the HUHS clinician who spoke with the defendant earlier in the evening. Atasoylu never examined or spoke with the plaintiff prior to authorizing the § 12 hospitalization. In the early morning hours of June 4, three police officers arrived at the plaintiff's home and brought the plaintiff to Cambridge Hospital against his wishes. The plaintiff was examined and released several hours later after physicians concluded that he was not at "imminent risk for self-harm." On June 6, following his release from the hospital, the plaintiff was barred from returning to the lab.

         b. Proced ...


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