Posted on by bedelman

The FRB withheld “the evidence gathered” and mischaracterized evidence.

This post is part of Summary Judgment Motions and Evidence.

The P&P draws a critical distinction between what the FRB should do and what it must do.  It provides that the FRB’s draft report “should include the evidence gathered,” but then states that “[t]he faculty member… will have an opportunity to review the allegation, the evidence gathered, and the draft report, and to respond in writing.” (emphasis added)

The difference matters.  The report “should” include evidence, leaving open the possibility that certain materials may not be appropriate for a document circulated to dozens of readers.  But whatever evidence might be withheld from the report, the P&P is unambiguous about disclosure to the faculty member: the faculty member “will” get to see “the evidence gathered.”  Not just the evidence the FRB considers important, not just the evidence it cites or relies on, but “the evidence gathered”—all of it.

This may sound like a generous promise.  But it did not arise by accident.  The FRB was created in response to concerns that prior allegations against faculty had been mishandled.  (Healy Dep 35: “there had been a controversial case … a few years prior …”)  Against that backdrop, it is entirely unsurprising that the P&P established meaningful protections including a firm guarantee about what evidence would be shared with the faculty member under review.  Remarkably, an earlier draft of the P&P called for providing “a summary of the evidence gathered,” a rule that was changed, in a later draft carried through to the final version, to “the evidence gathered” without qualification.  The change from “a summary of the evidence gathered” to “the evidence gathered” shows that this provision means exactly what it says.

Harvard emphasizes the P&P’s separate discussion of confidentiality.  But nothing in the P&P’s confidentiality discussion even approaches the mandatory “will” commitment to provide “the evidence gathered.”  Any accommodation for privacy must fit within what the P&P makes mandatory.

The evidence the FRB withheld and mischaracterized

There is no serious dispute that HBS withheld “the evidence gathered” in 2017.  HBS leaders concede that FRB notes of witness interviews were part of the evidence gathered. (SF 22.)  The FRB interviewed 21 witnesses, yet provided me with neither the interview notes nor even the identities of the witnesses.  The problem extends beyond witness interviews: The FRB also gathered other documents but did not share those either. (Id.)  Some of those materials were of dubious reliability.  (See e.g. Schlesinger Dep. admitting circulating criticisms of me from an author he admitted he didn’t know, whose opinion he admitted having no reason to credit.)

By withholding interview notes, the FRB was able to mischaracterize evidence.  My Motion offers three examples:

(1) The FRB suggested that Plaintiff mistreated staff but was deferential to faculty, relying on a quote, “With his superiors, he has more of a filter.”  But the full statement in the notes was, “With his superiors, he has more of a filter (as we all probably do).”  Far from the sharp criticism presented in the report, the witness actually reported a normal tendency to speak differently in different contexts.  Furthermore, the interview notes make clear that the interviewee specifically flagged this as “2nd/3rd hand” information (although the FRB sought only personal knowledge), and this witness confirmed in his deposition that the comment was not based on anything he witnessed firsthand, as all his interactions with Plaintiff were favorable. (SF 59.)

(2) The report included another professor’s remarks: “He’s abrupt. He lacks grace. He’s more apt to pressure others—he asks questions the way you might in a seminar,” but left out the further statement: “But he’s intellectually sharp. Asks great questions. He agrees to disagree.”  The excerpt suggests closed-mindedness, but the full statement indicates the opposite.  (Tellingly, Edmondson’s contemporaneous summary of this interview was strongly positive. (SF 58 citing Ex. 40.))

(3) An IT staff member was quoted as: “He can have a tendency to threaten to take something to the next level.” But the full quote continues: “… the next level, but he has taken a step back.” (SF 60.) Far from indicating that Plaintiff was harsh as of 2017, this witness actually indicated improvement. Since the FRB was allegedly examining evidence of changed behavior, it misled readers when it omitted information about timing and change.

Specific evidence that I now know the FRB gathered in 2017, but that it did not share with me:

But there are so many more! Consider this evidence of the FRB cherry-picking negative quotes from witnesses whose true views were positive.  From one faculty member’s interview, the FRB selected the single quote “He has worked on being less harsh, but his views are still quite clear to those who hear him.” But this witness also wrote a letter about his views on my candidacy.  When not filtered through note-taking (in this case, by FRB member Len Schlesinger) and selecting quotation (by FRB staff Jean Cunningham), this witness said he “strongly support[ed] the case for tenure.”  If HBS had provided me with “the evidence gathered,” as the P&P required, I could have demonstrated that the true interview was positive and the FRB’s quote was unrepresentative and hence unreliable.

My Response to Harvard’s Second Interrogatories offers eight single-spaced pages critiquing specific quotes in the FRB’s report, one by one, explaining what was wrong with each.  Representative categories of problems: Incomplete quote changing the meaning of full sentence or section, contrary to email evidence, contrary to contemporaneous summary, broader interview is positive, contrary to witness’s true views expressed elsewhere in his own words, speculation outside the scope of the witness’s knowledge.

Quotes not found in interview notes

Two of the negative “quotes” in the FRB’s report do not appear anywhere in the FRB’s interview notes.  These are the words that were inserted late in drafting by HBS Executive Dean for Administration Angela Crisp, who in her transmission email said the insertions were “quotes” from her “interviews.”  Asked in deposition, she admitted that they are not quotes: “they were not direct quotes”, “these aren’t direct quotes”, “they’re not here as a direct quote”.  She also admitted that they’re not from interviews: “It was not so much that it would be an interview, but we would be looking back [at emails]”; “Is your read that these are not actual comments that were made by witnesses in their interviews?” “I don’t know”; “Do you have a memory of where you found these two quotes to add them?” “No, I don’t”.  (MPSJ 13.)  My motion calls it “fabrication” for the FRB to include non-quotes not from interviews, when readers and even the other FRB members all understood these to be quotes from interviews.  I stand by the term.

After I called out that these “quotes” from “interviews” did not appear in interview notes, Harvard attempted to justify them by pointing to similar language found in emails Crispi had received months earlier. (Memo IOT MPSJ 8.)  That explanation only underscores the problem.  FRB Chair Amy Edmondson instructed other FRB members that certain witnesses “need to be interviewed” (emphasis added)—and using a specific “interview protocol”, at that.  New interviews, according to a standardized protocol, are plainly not the same as searching historic email discussions.  Every other FRB member did the assigned work: Every other quote in the FRB report matches something found in interview notes (albeit some taken out of context, artfully excerpted, or otherwise mischaracterized, including as discussed above).  It’s just these two last-minute insertions by Crispi that are, inexplicably, not found in interview notes.

Harvard now contends that the FRB report did not purport to provide verbatim quotes.  But the FRB report introduced the remarks with formulations such as “comments such as”, “using phrases such as,” and “expressed as” (pages 4-5)—each reasonably signaling words taken directly from interviews. (MPSJ 13.)  And everyone involved understood them to be quotes at the time: Crispi said she added “a few additional quotes from my interviews” (emphasis added), Edmondson discussed “the quotes”, Schlesinger commented on “the quotes” in a draft FRB report, Nohria took notes about “quotes,” and Gilson used the word “quotes” seven times in his deposition. (Dep. 67:4, 112:12, 155:3-4, 155:11, 155:25, 156:21-22, 157:10.)  Only in litigation did Harvard begin to claim these weren’t quotes.  Harvard’s position is ex-post rationalization, contrary to what everyone understood at the time.

Had I been provided the interview notes, I would have immediately challenged the fabricated quotations as well as the other mischaracterized quotes.  My Response to Harvard’s Second Interrogatories shows the precision and power this critique would have had.  The FRB’s criticism, grounded in these supposed quotes, would have collapsed under examination.

Thin evidentiary basis

Withholding information about which quotes came from which witnesses, the FRB also concealed the thinness of its factual foundation.  For example, of the FRB’s 21 interviews, only one was from HBS’s large IT department, with which I worked closely.  That fell well short of Edmondson’s instructions that Crispi interview HBS’s CIO plus “1-2 other IT representatives.”  Nothing in the FRB report disclosed (or even suggested) that the CIO was not interviewed or that only one IT staff member was interviewed.

Nor did readers have any way to find out that nearly half of the FRB’s negative quotations—six of thirteen—came from just two of the 21 witnesses. (MPSJ 13.)

Neither I nor readers of the report could know that the FRB’s discussion of staff interactions rested on such a narrow base.  The HBS Standing Committee later sought precisely this information—according to the FRB debrief, asking “Who did we [the FRB] really talk to.”  But the FRB’s report did not say, and the FRB’s representative to the Standing Committee says he declined to answer. (Schlesinger Dep. 135.)

In fact Edmondson went on to misrepresent how many staff the FRB talked to.  Earlier in 2017, I provided the FRB with a list of people it could interview.  Edmondson’s notes, which appear to be her planned remarks to the Appointments Committee (the best evidence of what she actually said, since no witness seems to remember), claimed that the FRB supplemented my list with “two to three added staff interviews.”  This was not true, either: Crispi interviewed exactly four staff, all from my list—so Edmondson’s notes (and, presumably, her remarks to the AC) dramatically overstate the number of staff interviewed.  A reader of the FRB’s report certainly could not know that the FRB interviewed only four staff.  Seeing that my list suggested 14 staff, and hearing from Edmondson that the FRB had added “two to three” more, a reasonable Appointments Committee member would expect the number of staff interviews to be considerably larger.

Meanwhile, interview evidence indicates that I worked well with staff.  From Crispi’s notes: “nothing but positive things to say” (staff witness 1), “good to work with” (2), “great ideas and they come from a good place” (3), “worked very well with teams and students” (4).  Remembering the interviews, Crispi affirmed that witnesses 1 through 4 had positive reflections about working with me: “she had had positive experiences”, “interview generally positive”, “mostly positive”.  (Her deposition did not discuss her impression of witness 1, but the notes are entirely positive.)  Nonetheless, and contrary to both Crispi’s notes and her recollection, the FRB report suggested that I did not work well with staff.  This was not even supported by Crispi’s impression, as the only FRB member present for the staff interviews.  Nor was it supported by other evidence gathered by the FRB.

How I would have used the evidence

In my Response to Harvard’s Second Interrogatories and in an Affidavit, I explained other ways that interview notes would have allowed me to rebut or contextualize witness remarks.  I identified quotes that were misleadingly truncated, based on limited interactions, contrary to the thrust of the overall interview, contrary to the email evidence, based on limited interactions in the period at issue, and speculation outside the scope of the witness’s knowledge.

An example illustrates the prejudice.  Three negative comments came from one witness, with whom I interacted in exactly two in-person meetings in the relevant period.  The FRB’s interviews included two other witnesses (1, 2) who were present at all times and reported nothing amiss in my conduct.  Harvard responds that two meetings could be enough to form a view, and Harvard block-quotes witness’s stated rationale. (Memo IOT MPSJ 9.)  But the witness’s rationale is simply wrong.  The witness criticized me for requesting that certain classes be recorded, as if I sought to record for my own enjoyment.  In fact I requested recordings to assist a colleague slated to teach the same material the next semester.  I provided my suggestion to my unit head, who checked with a then-Dean, and both thought the suggestion was valuable for the colleague’s professional development.  Had HBS provided “the evidence gathered,” as the P&P required, I could have demonstrated this that the recording was entirely proper and the witness’s critique was, at best, confused.

Instead, the FRB reduced these remarks to anonymous, decontextualized snippets.  I was left unable to identify who was criticizing me, based on what interaction, or why.

My Response to Harvard’s Second Interrogatories also lays out the importance of the positive quotes.  It’s not easy to rebut negative claims about character.  But overwhelmingly many positive claims—from witnesses in a strong position to assess, thanks to extended interactions—would have been persuasive.  For example, to the criticism “I’ve never seen him change his mind,” I found three quotes in which other witnesses specifically report having seen me change my mind, learn, or agree to disagree.  I would also have called out positive remarks from 18 different people, a page-and-a-half single-spaced, some in the strongest possible terms: “Most ethical person I know on the faculty”, “Always there to help”, “No negatives at all”, “Unsurpassed”, “Honesty++ … Integrity++ … Willingness to help colleagues is extraordinary. … #1 among non-senior faculty”, “Most generous… fiercely ethical”, “might uphold standards more than most of us in ways that are challenging for us.”  If anyone had suggested I was arrogant, I would have cited a colleague’s remark that I am “very quick to be modest.”  And I would have pointed out that the staff I worked with most closely, such as the assistant who sat outside my office (witness 2 in Crispi’s notes), had only positive things to say about me.

If I had access to notes about FRB’s discussions, I would have called out gems like Edmondson’s September 4, 2015 remark “everyone loves him because he gets them free stuff.”  Indeed, I often went out of my way to help where my skills aligned with others’ needs.  (Representative examples: Guidance on processing large datasets and navigating the boundaries of fair use.  Drafted letters to landlord, insurance company, and car dealership as to faculty and staff personal disputes.  Help staff prepare their annual state and federal tax returns.  Taught a RA’s low-income non-native-born parents how to rent a car cost-effectively in the US.)   There’s nothing wrong with any that.  The FRB’s criticisms are hard to reconcile with Edmonson’s report that “everyone” “loves” me.  If Edmonson had shared that assessment—her distillation of evidence the FRB gathered—I would have incorporated it in my defense.

Ultimately, “the evidence gathered” means what it says.  I was fighting hard for my chosen career, and I would have used every bit of available evidence to the utmost.  HBS promised to provide the evidence and was required to do so.  It did not.

References: MPSJ 11-14, Opp to MSJ 14-17.