German v. Rubin, et al. (Lawyers Weekly No. 12-118-17)
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 16-01640
GUSTAVO GERMAN
vs.
LEE L. RUBIN & others1
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S EMERGENCY
MOTION FOR AN ORDER DISALLOWING ADMINISTRATIVE PROCEEDINGS
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
David Lopes Cardozo and President & Fellows of Harvard College
This court relies not only on the facts recited in the Motion, but also those al 2 leged in German’s Verified Complaint
for Civil Contempt (Paper No. 124).
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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 BACKGROUND2
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
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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
denied him access to the facilities he needs for his research, his mouse colony, and the animal testing
facility.
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DISCUSSION
German’s Motion amounts to an emergency request to enforce this court’s December 5, 2016
Order. Every court of superior jurisdiction in this Commonwealth has the inherent power to compel
obedience to its decrees. E.g., New England Novelty Co. v. Sandberg, 315 Mass. 739, 746 (1944).
See Mass. R. Civ. P. 70.
The central question this court needs to address is whether Harvard’s institution of
administrative proceedings against German, and its eventual withdrawal of German from the
university for failure or refusal to hold the DAC meeting, the express purpose of which was to assign
a new “thesis advisor” to German, would have violated the December 5, 2016 Order.
The December 5, 2016 Order provided 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 Paper No. 78 at pars. 2,3.
This court finds that the action by Harvard, without modification of the December 5, 2016
order, or leave of court, would have violated the express language of the order. Further, this court
finds Harvard’s action was an attempt to frustrate the clear language, and well known objective, of
the December 5, 2016 Order. Harvard has participated in these proceedings since September 2016.
It was well aware of the obligations imposed by the December 5, 2016 Order. Further, German
communicated repeatedly with Harvard officials and employees his willingness to hold the DAC
meeting provided there was no attempt by Harvard to change his academic/thesis advisor. This court
finds that Harvard’s decision to engage in proceedings to disaffiliate German from the university,
without seeking leave of court, where German based his objection on the language of this court’s
Order, violated the Order and should be legally unwound so that German may resume the position
See Paper No. 33 (“During the hearing on September 6, 2016, this c 3 ourt learned that plaintiff has not yet been fully
restored to his position as of [sic] March 2016. Should that still be the case by September 16, 2016, the plaintiff may
request a further hearing… at which [Rubin] and Harvard will submit a pleading/affidavit as to what efforts have
been made to fully restore plaintiff to the position he was in in March 2016 and why that has not yet occurred.”);
Paper No. 50 (“Until plaintiff has completed his research to his satisfaction, including a thesis he is willing to submit
for publication, plaintiff is not to be transferred from the [lab] without plaintiff’s consent or court order.”); Id.
(“Harvard agrees that it will work with German and do everything it can to be sure that he promptly has the
necessary equipment for his research.”); Paper No. 58 (Prior court orders were “issued to restore Plaintiff to a lab at
Harvard where he had been banned by Harvard since June 6, 2016, so he may complete his research and achieve his
Ph.D.”).
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he occupied prior to the administrative proceeding.
As this court has repeatedly said, the goal of the harassment prevention order, and subsequent
amendments thereto, remained clear and unchanged throughout these proceedings: 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
This court does not credit Harvard’s arguments that (a) it was free to ignore the Order prior
to May 31, 2017, (b) that the terms of the Order exceed this court’s authority under G.L. c. 258E, or
(c) that German’s removal was an emergency “of Mr. German’s own making.” Instead, this court
agrees with German, that the crisis caused by Harvard’s complete frustration of the terms and clear
intent of the court’s December 5, 2016 order was an emergency completely of Harvard’s own
making. By withdrawing German, Harvard knew he would be unable to complete his research,
thesis, or Ph.D., as he was doing prior to Rubin’s harassment, per the Order.
While Harvard is correct that German was not exempted from the requirements of his
academic program, on this record, it is not clear that he has violated those requirements. German
offers a convincing argument that he was not required to hold a DAC meeting, as one was not due,
but he was open to doing so, at Harvard’s request, as long as that meeting did not violate the terms
of the December 5, 2016 Order. This court is not, as Harvard argues, attempting to “assume
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management of Mr. German’s Academic program” or unnecessarily “interfere with Harvard’s
Enforcement of its Academic Rules and Policies.” Far from it. This court is not ordering Harvard
to give German his Ph.D. The court is only looking at the clear language of its Order and the actions
of Harvard, and trying to effectuate the status quo German is entitled to under this court’s Order.
Placing German on academic probation for failing to attend a DAC meeting, under these
circumstances, has the appearance of a pretext. It is clear to this court that, by their actions, neither
Rubin nor Harvard have much interest in restoring German to the status quo he enjoyed on March
10, 2016. Nevertheless, that has been the clear intent of every order issued by this court since
August 25, 2016.
Harvard was aware of the Order and its purpose, had ample opportunity to seek modification
or clarification if it felt it had cause to alter German’s status as a graduate student at the Rubin Lab,
but nevertheless chose to remove German while ignoring German’s valid concerns and argument that
forcing him to change his thesis advisor violated the Order. All German has sought is the chance
to resume his research and continue his work in the same position he was in prior to the harassment
by Rubin. It appears to this court that as of today, ten months after this court ordered just such relief
for German, Harvard and Rubin continue to frustrate German’s efforts.
ORDER
It is, therefore, ORDERED that Plaintiff’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 is ALLOWED, nunc pro tunc to May 4, 2014, the original
date of German’s request for relief. Further, additional relief granted to German on the basis of this
motion is provided in the Revised Order, issued this day as a separate document.
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_________________________
Elizabeth Fahey
Justice of the Superior Court
DATED: July ____, 2017