This post is part of Summary Judgment Motions and Evidence.
My complaint alleges several forms of bad faith: People serving both as FRB members/staff and as witnesses. Misrepresenting evidence. Imposing rules different from, and beyond, the governing policy. Discovery confirms these claims, and more.
Improper dual role as both FRB member/staff and as witness
HBS Executive Dean for Administration Angela Crispi had a personal interest in ensuring that I did not receive tenure. In her deposition, she affirmed that it was “a reasonable goal for the FRB to have” to stop me from criticizing HBS’s IT organization—a department that reported to her. This goal has no basis in the P&P. To the contrary, suppressing faculty feedback on institutional improvements subverts the school’s mission. Since I was likely to continue to recommend IT improvement as long as I remained at HBS, Crispi’s only path to “stopping” me was to ensure my termination.
A particularly obvious example of Crispi’s manipulation of both evidence and process is her insertion of “quotes” from “interviews” that were not quotes and were not from interviews. (See separate post about manipulation of evidence.) Her manipulation also included characterizing my assistance to faculty with disabilities as “situations” for the FRB to evaluate (first bullet, redacted, in her June 28, 2017 notes), a conclusion she reached without speaking to affected faculty about why they sought my help or whether they felt HBS was adequately meeting their needs. Crispi testified that I’m “not an expert” on disability accommodations, and for that reason she was “concern[ed]” about what I was doing. But multiple faculty with disabilities thought HBS wasn’t doing enough to help them, and they came to me both for advocacy (it’s often easier to speak up for a friend) and creativity (as I had ideas beyond what others had suggested). These faculty said they preferred my approach, and my top priority was helping them. That isn’t a “situation” calling for FRB evaluation, and if it’s relevant to my character, it is only positive.
In parallel, Crispi told the FRB her understanding of my supposed interactions with staff, but over and over, her understanding was wrong. Consider her claim about projection screens in MBA classrooms. I had objected that it was unwise to reduce screen size, both because some instructors used detailed slides (e.g. diagrams), and because some students had less-than-perfect vision. Closely related, I just couldn’t wrap my head around an “upgrade” that made screens smaller. When I offered these concerns, Crispi scolded me in an email: “Perhaps everyone’s effort to be polite has led you to believe there remains an opening. There is not, and thus I ask and urge you to put this matter to rest.” She provided this email to the FRB, too. As a result, the 2015 FRB report stated that “the project did move ahead.” (FRB 2015 Report.) Despite Crispi’s strong words, her claim was incorrect. When the Academic Technology Steering Committee (“ATSC”) saw a demonstration of how the project would shrink screens, chair Felix Oberholzer-Gee decided to keep the screens as they had been, just as I proposed. Crispi knew that was the outcome even before Oberholzer-Gee announced it, yet she didn’t tell the FRB that my recommendation was in fact followed. Quite the contrary, she suppressed emails showing that she was chagrined and frustrated to be overruled, and that HBS’s CIO praised my conduct in the ATSC meeting where this decision was made.
One might hope careful investigation by the FRB would uncover Crispi’s misstatements. It did not. Upon receiving the FRB’s draft 2015 report, I contacted the ex-Senior Associate Dean who had led the MBA program when IT first proposed to reduce screen size. In parallel with speaking with me, the ex-SAD sent the FRB remarks about my role, portraying me favorably (quite differently from what Crispi had told her FRB colleagues). Reviewing the ex-SAD’s message, Edmondson remarked to FRB colleagues: “we are likely to face a need to revise.” Instead, the FRB decided to dig in its heels. That left me to attempt to rebut in my reply—grounded, in part, in ex-SAD Yougme Moon’s effusive praise for my contribution: “I am SO grateful that you alerted me to this. I am also grateful that you were able to help Media Services come up with such a win-win solution. You are a freaking genius when it comes to this stuff. I’m really so grateful.” But my reply was no substitute for FRB accuracy from the start. Ultimately the 2015 FRB got this situation totally wrong, and discovery reveals how it happened: Because Crispi led them astray. See also Opp to MSJ 3-4.
In a footnote, I offer three more examples of Crispi mischaracterizing my interactions with staff:
Crispi told the FRB that Plaintiff’s request to access his office computer from outside the HBS campus was rejected. (Ex. 163, Crispi Dep. 53-54.) In fact, Plaintiff and HBS IT staff devised a narrowly-tailored exception. (BGE19181.)
She was also incorrect in her claim that Plaintiff’s request for an office projector was rejected as “not something we do.” (Crispi Dep. 23-25.) In fact, Plaintiff and HBS staff identified a way to install an office projector and did so successfully. (BGE19163, BGE19220, BGE19218).
Crispi similarly claimed Plaintiff “wanted to submit case to HBP w/o assigning copyright.” (Ex. 163.) Plaintiff’s actual objection was that, in violation of Harvard University policy, HBS claimed cases were work product owned from the outset by the university. After consulting counsel, HBS changed its approach. (BGE9886, BGE9876, BGE9903, BGE9914; Ex. 6 at 18.)
Crispi’s contemporaneous notes confirm her personal preference that I be pushed out of HBS: “doesn’t seem worthy of being an HBS faculty member.” She even criticized me for things that would ordinarily be seen as positive “Find him disingenuous … brings in candy.” Yes, I have a terrible sweet tooth. Yes, I sometimes brought snacks to enjoy with others. That’s not disingenuous and shows nothing wrong with my character. This was neither a proper subject for FRB to evaluate, nor a proper basis to criticize me.
On weightier questions, too, Crispi repeatedly presented me in the worst possible way. A June 2010 discussion about dental insurance for long-serving staff is illustrative. I had learned from a HBS food-service worker that she and a dozen colleagues lacked dental insurance. HBS provided dental insurance to all faculty and all other staff, but oddly claimed these staff were ineligible because they began working at HBS in the 1980’s, before dental insurance was available. I wrote a brief memo explaining why the governing union agreement, by its terms superseding all prior agreements, required HBS to provide dental insurance. Presented with this authority and argument, HBS to its credit soon provided the benefit that these staff had requested for years. (Though I never heard of HBS reimbursing staff’s prior dental expenses! Well, it’s never too late.) I am proud that I brought the matter to the attention of appropriate people, and proud also that when I laid out the arguments supporting the workers’ request, there was little further delay in getting them what they sought. Nonetheless Crispi called this an “event” and an “incident” for the FRB to evaluate. And when my unit head Brian Hall contacted FRB to urge that my positive activities (this among others) be considered as the FRB evaluated my character, Crispi opposed that suggestion, claiming I had created “problems” “including labor relations” and “managers having to look like bad cops.” Here too, it’s easy to see why Crispi took offense: The entire HBS staff reports to her including, yes, the managers who had withheld dental insurance from the long-serving staff. But I was right, and her team got it wrong. However convenient it was to blame me, the real problem was HBS’s own errors, i.e. the inexplicable prior decision to withhold dental insurance from senior staff.
Influenced by Crispi’s remarks, the FRB ultimately rejected my claim that projects like this showed my good character, instead arguing that my efforts to help others were “not really relevant” and “could actually carry institutional risk for HBS.” Here the FRB badly misunderstood the true “risk” HBS faced. The risk to HBS wasn’t the possibility of paying a dozen staff a few hundred dollars extra per year. No, the risk was that if food-service workers became more frustrated about the incorrect denial of benefits, they could seek help from a journalist. Indeed, most people would have found it outrageous that full-time Harvard employees in 2010 lacked dental insurance (not to mention staff who had worked there for 20+ years), so this would have received (and deserved) a harsh headline. My efforts to resolve the problem confidentially, directly, and with integrity served to reduce that risk, the real risk. Ultimately HBS’s problem came not from me helping affected employees get what they were plainly entitled to, but from improperly denying those benefits in the first place.
Meanwhile, Cunningham called me a “sore spot” for her, revealing her personal preference against my candidacy. When she acted as a witness for FRB, she too omitted relevant information. For example, the FRB in 2017 criticized me for failing to get permission before filing a class action lawsuit. As the FRB discussed that criticism, Cuningham should have reported that in 2008 (just one year into my time at HBS), I had asked her what approval was required to serve as an attorney, and she told me no such approval was required. (Opp to SJ 24.) Instead it appears she was silent. The FRB thus criticized me for failing to seek approval without mentioning, and seemingly without knowing, that I had asked Cunningham years earlier, and she had said no approval was required.
Each of these subjects was easy to investigate, and these errors were correspondingly easy to avoid. If the FRB had asked me, I would have told them. If the FRB had checked with other sources, they could have easily learned the truth. If the FRB had asked Crispi and Cunningham follow-up questions, as they did to other witnesses, they could have uncovered inconsistencies that would have led to the full picture. But Crispi was an FRB member, and Cunningham the FRB’s sole staff. What they said went unchallenged, and the FRB sought no corroboration with other sources.
Harvard protests that no P&P provision forbids a single person from serving as both a witness and as a FRB member or staff. Of course—which is why I raise these arguments as part of my good faith and fair dealing claim, not part of my breach of contract claim. I reasonably expected a fair and orderly procedure where evidence would be verified. By accepting the uncorroborated testimony of Crispi and Cunningham—both of whom had personal interests in the outcome—the FRB subverted the contractual benefits I was promised.
Selective enforcement and discriminatory scrutiny
Discovery confirms that the FRB subjected me to scrutiny not applied to other faculty. Ben Esty, HBS’s self-proclaimed chief compliance officer, stated that HBS singled me out, remarking “one could interpret the selective enforcement of our community standards on a single candidate as discriminatory.” (attribution to Esty.) Cunningham corroborated this admission: “to be fair to Ben, we haven’t audited any faculty member for compliance with the [conflict of interest] policy.”
Selective enforcement is a prima facie violation of the duty of good faith. Evaluating me under a unique, heightened set of rules—while ignoring the conduct of others—is the antithesis of the fair process the P&P contemplates.
Predetermined conclusion
Documents indicate that the FRB made up its mind before the 2017 proceedings even began. In 2015, FRB members discussed—and memorialized in their notes—the prospect of getting me to leave HBS voluntarily by “put[ting] a structure of resources in place that [I] would find onerous and leave.” In the FRB’s first meeting in 2017, before the FRB collected a single piece of evidence, Stu Gilson said that I had “priors”, “thought the Blinkx incident alone should have been enough to fire [me],” described himself as “seething,” and viewed me as “irredeemable.” In that same meeting, Edmondson stated that it was “obvious that we shouldn’t have him on the senior faculty.” When Schlesinger expressed a desire for “affirmative evidence that [I have] changed … behavior,” another member responded, “At face value, we don’t see the evidence”—all this still before collecting a single piece of evidence.
These internal communications undermine Harvard’s claim of a legitimate process in 2017. Stating these views before the 2017 process began, the FRB members revealed their predetermined conclusion. Predetermining the conclusion denied me the fair, evidence-backed proceeding the P&P calls for.
Manipulation of evidence
Discovery reveals that the FRB intentionally skewed its 2017 report to diminish the overwhelming volume of positive witness remarks. When Cunningham first drafted the 2017 report, her draft contained 27 positive and 7 negative remarks, which she intended to be “representative” of the interview notes. To that, FRB member Len Schlesinger objected that “the positive comments overwhelm the less-than-positive feedback,” instructing that more negative comments be added to shift the balance. Cunningham and Crispi then added six more negative comments, nearly doubling the volume of negative comments and bringing the final report to 27:13.
It was Cunningham’s task, not Schlesinger’s, to read all the notes of witness interviews. In fact, Schlesinger’s deposition nowhere indicates receiving notes of anyone else’s interviews. If other FRB members received each others’ notes, that’s not apparent in the record, and Crispi specifically indicated not receiving copies of other FRB members’ interview notes. If Schlesinger hadn’t even read notes from others’ interviews, his recommendation of more negative comments could not have been driven by a bona fide assessment of the substance of those interviews. Rather, his call for more negative comments stems directly from his (and the FRB’s) predetermined conclusion.
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The duty of good faith and fair dealing calls for a reasonable and fair process even in areas where P&P is silent. In the areas described above, the 2017 FRB fell far short.
References: Opp to MSJ 23-25.