This post is part of Summary Judgment Motions and Evidence.
These interrelated procedural violations led the FRB to hasty conclusions that were both muddled and wrong, all to my detriment.
The FRB opened without an allegation in 2017.
The P&P unambiguously required the FRB to begin every case by drafting an allegation and providing it to the faculty member. But the 2017 FRB did not provide me with a summary of an allegation that it intended to evaluate, violating the P&P and impeding my effort to defend myself.
Without a specific allegation to investigate, the FRB should have stopped its work. Instead, its initial 2017 letter resolved to “assess” three subjective criteria: whether I understood why my conduct was “problematic,” whether there was evidence of changed behavior, and whether such changes would be “sustained.” (SF 19.) These are matters of opinion, outside the questions that the P&P authorizes an FRB to consider. Notice that the P&P calls for inquiries on questions of fact: “whether misconduct has occurred” and “whether [the] candidate has upheld the School’s Community Values.” (MPSJ 15.)
The 2017 letter also fails to state an “allegation” because the word “allegation” means a claim of specific wrongdoing. The FRB’s vague letter stated no such claim.
Harvard claims the 2017 FRB was merely a continuation of the 2015 proceedings: “when the FRB reconvened in 2017, there was no need for a new allegation.” (Memo IOT MPSJ.) This is incorrect as a matter of procedure because the P&P authorizes an FRB to prepare “a draft report” (singular, emphasis added), not a series of reports over several years. It is also wrong because contemporaneous documents recognized that the 2015 and 2017 FRBs were distinct. In particular, HBS called the 2015 and 2017 proceedings “reviews” (plural) (Ex. 151), and Deans Nohria and Healy both testified that the 2017 proceeding was “another FRB” (Nohria twice: 69:15 and 71:1; Healy). While the 2015 report addressed specific incidents, the 2017 report did not—confirming a shift in scope. (Reply ISO PMSJ 5.) As a new proceeding, the 2017 FRB was required to follow the P&P from the start, beginning with a formal allegation.
This is no technicality. Drafting the P&P, Dean Cunningham noted that a defined allegation is a “key element” that establishes the FRB’s “scope of work.” By treating the scope as infinite or indefinite, Harvard denied me fair notice, prevented the timely gathering of relevant evidence, and subverted the P&P’s requirement for an organized, orderly procedure.
The FRB expanded its scope improperly and at the last minute.
The FRB dramatically expanded its scope on September 1, 2017. This expansion was egregiously untimely: it occurred 22 days after witness interviews had concluded, 18 days after my own interview, and with the deadline looming for the FRB’s report. By this point, the FRB should have begun, carefully, drafting its report. Instead, the FRB was back to the drawing board—collecting new evidence on new subjects. Despite the lateness, the shift was substantive: With this expansion, the FRB suddenly began investigating my legal service and general outside activities.
Even Dean Cunningham, staff to the FRB, initially objected, noting that these additions were “in effect an allegation” and “outside the mandate of the current FRB review.” (SF 36.) Nevertheless, these subjects were included and ultimately comprised approximately 40% of the final report. (MPSJ 15.)
The FRB’s late expansion compelled tight deadlines at all subsequent stages, and the FRB ultimately granted me only four business days to respond—a stark departure from the weeks or months allowed for prior requests. That duration was well outside the norm for FRB or other important HBS procedures. Later, when the FRB finally sent me its draft report, it for the first time identified specific work products with allegedly-insufficient disclosures. Yet, there too the FRB granted inadequate time for me to get to the bottom of their claims—just six business days despite the complex multi-part document requiring all manner of other responses too (e.g. as to the anonymized decontextualized quotes). The end date of this compressed schedule was arguably necessitated by HBS’s promotion timeline—ultimately, by when the President would evaluate promotion recommendations from the Dean. But start of the schedule resulted from the FRB’s untimely expansion. Had the FRB fixed its agenda at the start, there would have been plenty of time and no need to rush.
The FRB’s compressed schedule also caused a second problem: Working in a hurry, they made extra mistakes. Three that are particularly galling:
- False citation. The FRB claimed negative media coverage of my 2017 class action lawsuit, but the claim was without basis in fact. In support of that claim, the FRB mistakenly cited a blog post regarding an entirely different subject. (Details.)
- Web page versus article. The FRB cited a brief disclosure on a publisher’s web page linking to an academic article, but ignored a more detailed disclosure within the article itself. (Details.)
- HBR editorial decision. My disclosure in a publication in Harvard Business Review (HBR) was drafted by an HBR editor, not me. I had timely provided full information to the editor, a Harvard employee. He in turn was constrained by HBR’s internal IT system, which on HBR’s web site called for a single author disclosure rather than a separate disclosure for each article. (Details.)
My Affidavit (beginning at ¶16) reviews these and other errors in the FRB’s criticism of my disclosures.
In my reply to the FRB, I alerted the FRB to the inaccuracies I had found. I informed the FRB that their criticism of negative media coverage of the lawsuit was totally wrong, citing an article about something else completely (first bullet above). I pointed out that the HBS Conflict of Interest (COI) policy did not require disclosure on the identified articles because none met the policy’s “directly related” test. I further noted that my work for Microsoft had concluded before those articles were even published—a fact the FRB either ignored or hadn’t learned at all.
Despite my reply, the FRB made no revisions. They refused to acknowledge the timeline of my Microsoft work or correct the erroneous media citation. Their refusal to revise is telling: the irrelevant blog post was their only “evidence” of negative media coverage. Without it, their critique was revealed to be mere speculation. Alarmingly, they chose to retain the error rather than rework this section.
With more time—as there would have been if FRB hadn’t expanded at the last minute—FRB would more likely have avoided these mistakes. Or more time would have allowed me to find additional mistakes including those laid out in my affidavit.
By its own admission, the FRB did not reach conclusions.
The FRB’s final report failed to reach the conclusions required by the P&P. Under the P&P, a report must include “conclusions on whether misconduct has occurred” and, in tenure cases, “whether a candidate has upheld the School’s Community Values.” Rather than make these determinations, the FRB offered only vague intimations that I had, in some unspecified way, fallen short.
Had the FRB attempted to reach the required conclusions, it would have had to do the rigorous work of applying specific policies to my actions. To claim that I had violated the Conflict of Interest Policy, the FRB would have needed to identify the relevant parts of the policy, and explain how my conduct purportedly did not comply. If the FRB wanted to criticize the class action I originated, it would have needed to identify what policy was allegedly implicated by the lawsuit or its supposed “PR risk to Harvard”.
Remarkably, the FRB explicitly admitted its own failure to investigate and reach conclusions. On the first page of its report, the FRB wrote: “this process was not an investigation, and we did not seek to pass judgment.” But the P&P allows no such disclaimer; it expressly mandates both “investigation” and “conclusions.” Resorting to implication and innuendo in lieu of a formal finding was a direct breach of the P&P’s promises.
Harvard’s Reply claims the FRB fulfilled its obligations because it interviewed witnesses and wrote a report. Ordinarily, that might constitute an investigation. But here we have the puzzling fact that the report states on page one that it “was not an investigation.” Surely that remark has meaning, and with that prominent admission, Harvard cannot easily claim the report was, in fact, an investigation. The FRB faculty are all distinguished scholars. If they believed they had conducted a proper and complete investigation, why would they say they didn’t? Whether this disclaimer was intended as an apology to colleagues or an effort to deflect criticism of gaps and violations, the result is the same: The P&P required an “investigation,” and the FRB explicitly stated its work “was not an investigation.” Harvard is stuck with the FRB’s admission on its first page, and this is a breach of contract.
References: MPSJ at 14-18, Opp to MSJ at 18-21