Category: Outset of Litigation

Today I filed a lawsuit in Massachusetts court about Harvard Business School’s failure to follow its own procedures in a disciplinary proceeding against me a few years ago.  I’d like to offer a few remarks about why I’m suing and why this matters — to me, to other faculty members who may be subjects of future charges, and, I hope, to others.

We should all be concerned when a person is incorrectly accused in a disciplinary proceeding.  Perhaps some readers of this piece have been incorrectly accused of something at some point in their life, or know others who have been incorrectly accused.  In most proceedings, procedures are designed to increase the likelihood that a person incorrectly accused is, correctly, cleared.  This is as it should be: No one trusts a process that routinely endorses incorrect allegations.  Conversely, we’d all like to be confident that a person found to have committed some violation in fact did what is alleged.  An investigatory system has to work, almost all the time, to earn and deserve trust and deference.

The importance of getting it right is revealed by the many terms the English language uses to describe broken investigations: sham, charade, kangaroo court, witch hunt, hatchet job.  We have these many terms not just because the concept captures the imagination, and not just because it’s the stuff of grocery store novels and TV crime shows, but because it could happen to any of us—bogus allegations and flawed investigations at our schools, workplaces, clubs, or almost anywhere else.

To give an investigatory system a reasonable probability of accuracy, the best approach is to establish procedures that assure fairness to anyone accused, then follow them strictly.  In the system that investigated me, the rules were pretty simple, and were plainly designed to assure fairness from start to finish.  They’re available here for anyone interested.  Of particular relevance to my case:

1. The rules require the investigators to declare at the outset what they’re investigating, then stick with it.  That rules out “fishing expeditions” where a committee looks and looks until finally it thinks it found something – a process that could probably find some defect in almost anyone, making such a process an unreliable way to find genuine concerns.
2. The investigators must actually conduct an investigation and determine whether a given allegation has merit.  It is insufficient to merely collect opinions, grievances, or personal attacks. The essence of the investigation is to evaluate those criticisms.
3. Whatever evidence there is against the target of an investigation, the investigators must share that evidence with the person.  That way the person accused can offer whatever explanation or mitigating factors might apply.  Perhaps that context will cause the evidence to be seen differently.

My complaint alleges, and I stand ready to prove in court, that HBS’s 2017 proceeding fell short in all these regards (and others).  Those interested can read the complaint, and I expect that further evidence will become available in the coming months.  Portions may get a bit complicated, like what exactly a given policy required, or how a given academic project related to some consulting matter.  But much of it is quite clear-cut: Either the proceeding gave me (and readers) “the evidence gathered”, as the policy guaranteed, or it did not.  There will be no real dispute that it did not. That alone proves that the proceeding did not follow its rules—and that alone should compel that the proceeding be done over, properly. It’s equally clear-cut that the P&P required the FRB to “investigate” — yet the FRB looking at me declared its work was “not an investigation”, affirmatively admitting falling short of what the P&P required.

Some will wonder why it’s worth my time to sue.  Indeed, this case will surely take considerable effort.  But I invested 11 years at HBS, and in many respects I designed my professional activities to fit what the school most valued.  To HBS’s credit, it offers a distinctive emphasis on practical, applied, impactful research; I joined HBS because I valued that practicality, and my time there confirmed that that’s the kind of research I like to do.  Meanwhile, many people know the special demands of HBS teaching—and while I frankly struggled with teaching for a few years, by the end I hit my stride, including both being highly effective as an MBA teacher, and also genuinely enjoying it.  Bottom line is it’s a job I did well, and I more than met the standards to continue. Were it not for the incorrect FRB report about me, I would have been able to continue and would have stayed indefinitely.  This lawsuit is the way to set things right—to reclaim what I fairly earned, and to clear my name of the incorrect allegations.  Anyone who believes in the importance of fair disciplinary proceedings—of those incorrectly accused having a meaningful opportunity to clear their names, of every proceeding following the stated rules to increase the likelihood of a correct outcome—should want my case to succeed. Wish me luck!

In summer 2017, in preparation for my possible promotion to tenure that fall, HBS reconvened a “Faculty Review Board”, the school’s disciplinary procedure for evaluating possible faculty misconduct. The FRB is governed by its “Principles & Procedures for Responding to Matters of Faculty Conduct” rules (the “P&P”), which establish significant protections for faculty members. On the whole, the P&P requires a careful, organized, evidence-backed procedure designed to find the truth — guaranteeing that the faculty member have meaningful notice of the claimed infraction, access to relevant evidence, and a fair opportunity to respond. The 2017 FRB flouted the clear requirements as it sought what seems to have been a predetermined conclusion.

I allege that the P&P has the force of contract, and my lawsuit flags five distinct violations of that contract:

1. The 2017 FRB failed to provide me, or its readers, with “the evidence gathered.” The P&P instructs that any FRB report must include “the evidence gathered.” The word “gathered” means that the evidence must be provided in the same form in which is it was gathered, e.g. full interview transcripts, full interview recordings, and full emails. All these must include both those sources that the FRB relied on, and also those that it gathered (or otherwise received) but for whatever reason did not rely on.

   The 2017 FRB did not provide the evidence that it gathered either with its draft report or its final report. In fact it attached no evidence whatsoever. Thus neither I nor the Appointments Committee ever received the evidence the FRB gathered.

   Most glaringly, the FRB criticized me with 12 derogatory bulleted entries (nine of them just one sentence each), purportedly summarizing remarks by people the FRB spoke to. The FRB knows who it spoke to, kept notes of all discussions, and I believe even made recordings. But the FRB didn’t tell me, or readers, who made these remarks. Nor did the FRB tell me, or readers, what contexts the speakers were talking about. Maybe all 12 came from one person, or maybe from 12 different people; the report gives no way to know. This decontextualized anonymous criticism is plainly contrary to the P&P obligation to provide “the evidence gathered.”

2. The 2017 FRB lacked a proper scope consistent with the P&P. The P&P instructs that the FRB may be invoked to investigate “instances of egregious behavior or actions, or incidents that indicate a persistent and pervasive pattern of problematic conduct.” (emphasis in original). But the 2017 FRB alleged neither of these. Indeed, the 2017 FRB was convened in the absence of any alleged misconduct whatsoever.

   If HBS wanted to convene a FRB to investigate me in 2017, it needed to allege either egregious behavior, or persistent and pervasive problematic conduct. But neither of those prongs would have been plausible. Tellingly, the FRB did neither. The P&P allows no such thing.

3. The 2017 FRB failed to begin by stating “a summary of the allegation, as it is known at the time.” The word “allegation” has real meaning — an affirmative claim of misconduct. The FRB made no such claim at the start of its 2017 proceedings, failing to put me on notice of what, specifically, they would be investigating. Instead, months into its proceeding, the FRB unveiled a host of spurious complaints. In contrast, the P&P requires that the scope be provided at the outset, which would have let me better defend myself and would have kept the FRB (properly) limited to those matters serious enough that they were known at the outset.

4. The 2017 FRB improperly expanded its scope midway through its proceedings.

   The P&P requires the FRB to investigate the same “the allegation” that it stated when commencing its process, thus giving the faculty member notice of the scope of its inquiry at the outset and a fair opportunity to be heard during the process.

   Instead, the FRB expanded its scope at the last minute. The 2017 FRB began as an inquiry into my progress since 2015 and compliance with requirements agreed to in 2015. But late in the 2017 process, the FRB became an inquiry into my outside activities.

5. The P&P requires the FRB to “investigate the allegation” (emphasis added), yet the 2017 FRB in its own words admitted that it was “not an investigation.” That much the 2017 FRB got right — it genuinely did not seek to get to the truth of the matter or weigh evidence, for it instead resorted to anonymous attacks and collecting grievances. But the P&P required the FRB to actually investigate. Having admitted not conducting the “investigation” that the P&P required, the FRB plainly and by its own admission did not comply with the P&P.

   So too for the FRB’s failure to reach “conclusions” as the FRB required. The FRB admitted that it “did not seek to pass judgment on [my] particular outside activities and work.” And the FRB collected and reported grievances about me, without even attempting to determine whether the complaints were correct. In contrast, the P&P required the FRB to provide “conclusions,” which it plainly and again by its own admission did not.

Details are in my complaint, especially paragraph 24 (as to the governing rules), 45 to 68 (as to the FRB’s violation of these rules), and 84 to 102 (laying out my breach of contract claim arising from the FRB’s violation of these rules).

My complaint also alleges that HBS breached the duty of good faith and fair dealing, requirements which are implied in all contracts. I allege multiple violations of that duty: HBS incorrectly included staff in or supporting the FRB who had conflicts of interest in that they were witnesses or complainants in the same matters the FRB was to investigate. The FRB misrepresented evidence and failed to correct incorrect statements even when I specifically flagged those errors. The FRB mischaracterized a governing HBS policy by failing to explain the limited situations in which that policy applied and by assuming, incorrectly, that it applied to my situation. I claim that the FRB’s procedural errors amount to a denial of basic fairness and undermined my rights under the P&P. Details in my complaint, paragraphs 108 to 111.