PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Elena Graff, General Counsel, Thornwick Medical Research Institute Grace Okenwa, Vice President, Human Resources, Thornwick Medical Research Institute
FROM: Renata Vasquez, Partner, Calderwood & Harkness LLP Nadia Petrov, Associate, Calderwood & Harkness LLP
DATE: November 4, 2024
RE: Interim Findings — Independent Investigation into Grievances Against Dr. Marcus Ellender, Director, Biomedical Engineering Laboratories
C&H Matter No.: 1029-00002
CONFIDENTIALITY NOTICE: This memorandum is a privileged and confidential attorney-client communication and attorney work product prepared by Calderwood & Harkness LLP at the direction of Thornwick Medical Research Institute ("TMRI"). It contains the mental impressions, conclusions, opinions, and legal theories of counsel. This memorandum is not to be disclosed to any third party — including but not limited to the respondent, any complainant, any government agency, or any insurer — without the prior written consent of TMRI General Counsel. Unauthorized disclosure may result in a waiver of attorney-client privilege and work-product protection. If you have received this memorandum in error, please notify the sender immediately and destroy all copies.
I. Purpose and Status of Investigation
The purpose of this memorandum is to provide TMRI's General Counsel and Vice President of Human Resources with interim findings and preliminary conclusions based on the evidence gathered to date in the independent investigation opened September 10, 2024, into formal grievances filed against Dr. Marcus Ellender, Director of Biomedical Engineering Laboratories at Thornwick Medical Research Institute. This memorandum is intended to enable TMRI leadership to assess developing risk exposure, to take any interim protective measures that may be warranted prior to the issuance of the final investigative report, and to plan for institutional response in the event that the preliminary findings set forth herein are confirmed by the remaining investigative work.
The investigation was engaged pursuant to the engagement letter executed on September 10, 2024, between Calderwood & Harkness LLP, One Federal Place, Suite 3200, Boston, Massachusetts 02110, and Thornwick Medical Research Institute, 480 Kendall Avenue, Cambridge, Massachusetts 02142. The engagement letter was signed by Renata Vasquez on behalf of Calderwood & Harkness LLP and by Elena Graff on behalf of TMRI. The terms of the engagement provide that Calderwood & Harkness will conduct an independent, thorough, and impartial investigation into the allegations set forth in the five formal grievances described herein, and will report its findings and conclusions to TMRI's General Counsel and Vice President of Human Resources.
The investigation team comprises the following attorneys: Renata Vasquez, Partner (Responsible Partner); Nadia Petrov, Associate (Lead Associate); and James Underwood, Associate (Working Associate). Each member of the investigation team has been screened for conflicts, and no conflicts of interest have been identified.
As of the date of this memorandum, the investigation has reached the following status: All complainant interviews — totaling five separate sessions — were conducted between September 23 and October 11, 2024. All corroborating-witness interviews — encompassing eight unique witnesses across eight sessions — were conducted between October 14 and October 18, 2024. The respondent interview of Dr. Marcus Ellender was conducted over the course of two days, October 23 and October 24, 2024, at Calderwood & Harkness's Boston office, with Dr. Ellender's personal counsel, Rachel Whitmore, Partner at Hadley, Brennan & Morrow LLP, present for the entirety of the interview. Document-production review of 1,247 collected documents was completed on October 21, 2024.
Three follow-up interviews remain to be scheduled in November 2024 to address discrete evidentiary gaps that were identified during the document review and initial rounds of witness interviews. These follow-up interviews are anticipated for the week of November 11, 2024.
The final investigative report, incorporating all remaining evidence and a complete analysis of each category of alleged misconduct, is expected to be delivered to TMRI by late November 2024. The final report may modify, supplement, or alter the preliminary conclusions set forth in this interim memorandum, depending on the evidence developed during the remaining investigative steps.
II. Scope of Investigation
The scope of this investigation, as defined in the September 10, 2024 engagement letter and further refined in consultation with TMRI General Counsel, encompasses four categories of alleged misconduct by Dr. Marcus Ellender in his capacity as Director of Biomedical Engineering Laboratories. Each category implicates potential violations of applicable law, regulation, or TMRI policy, as set forth below.
1. Retaliation. The investigation examines allegations that Dr. Ellender retaliated against employees who reported safety concerns or other workplace issues, in potential violation of Massachusetts General Laws chapter 149, section 185 (the Massachusetts Whistleblower Protection Act), which prohibits employers from taking retaliatory action against employees who report or threaten to report to a supervisor or public body an activity, policy, or practice of the employer that the employee reasonably believes is in violation of a law, rule, or regulation. The investigation also examines whether such conduct violated TMRI Anti-Retaliation Policy HR-2021-009, which provides broad protections against retaliation for employees who raise good-faith concerns regarding workplace safety, legal compliance, or other matters.
2. Hostile Work Environment. The investigation examines allegations that Dr. Ellender created and maintained a hostile work environment through verbal intimidation, discriminatory scheduling practices, and the imposition of punitive work assignments, in potential violation of Massachusetts General Laws chapter 151B, section 4, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and TMRI Respectful Workplace Policy HR-2021-005. The investigation has examined whether any hostile conduct was motivated by a protected characteristic, including but not limited to race, national origin, sex, gender, or any other characteristic protected under federal or Massachusetts law.
3. Safety-Protocol Violations. The investigation examines allegations that Dr. Ellender directed employees under his supervision to circumvent mandatory safety protocols, including OSHA-mandated personal protective equipment ("PPE") requirements under 29 C.F.R. § 1910.132 et seq. and biohazard-containment protocols established pursuant to the National Institutes of Health Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules. The investigation has examined whether such conduct was systemic in nature and whether it exposed laboratory personnel to unreasonable risk of physical harm.
4. Falsification or Alteration of Records. The investigation examines allegations that Dr. Ellender falsified or directed the alteration of official records, including safety-incident reports (specifically IR-2024-031 and IR-2024-038) and lab-notebook entries. The investigation has examined whether such alteration was intended to conceal safety incidents, shift blame to subordinate employees, or otherwise obstruct the accurate documentation of laboratory operations.
Identification of Complainants
Five employees of Thornwick Medical Research Institute filed formal grievances against Dr. Ellender through TMRI's Human Resources department during the period of August 12 through September 4, 2024. The complainants and their respective allegations are as follows:
1. Dr. Yuna Sakata, Senior Research Scientist, Lab B-2. Grievance filed August 12, 2024. Dr. Sakata alleges retaliation following her report of a chemical spill in Lab B-2, including unjustified reassignment from her role on an NIH-funded research project to a lower-profile internal assignment.
2. Trevor Hollins, Lab Technician III, Lab B-3. Grievance filed August 19, 2024. Mr. Hollins alleges hostile work environment, including verbal intimidation during lab meetings and in front of colleagues, as well as falsification of safety-incident reports that attributed equipment malfunctions to his operator error.
3. Dr. Priya Chandrasekaran, Postdoctoral Fellow, Lab B-1. Grievance filed August 26, 2024. Dr. Chandrasekaran alleges discriminatory scheduling (disproportionate weekend and holiday shifts), denial of conference-attendance opportunities extended to similarly situated colleagues, and a retaliatory negative performance review.
4. Miguel Ferreira, Lab Technician II, Lab B-4. Grievance filed August 30, 2024. Mr. Ferreira alleges that Dr. Ellender directed him and other lab technicians to bypass OSHA-mandated PPE protocols during aerosol-generating procedures and threatened him with termination for raising safety concerns with the Environmental Health & Safety ("EHS") office.
5. Sandra Nix, Research Associate, Lab B-2. Grievance filed September 4, 2024. Ms. Nix alleges hostile work environment and reports that she directly witnessed Dr. Ellender instruct staff to alter lab-notebook entries to conceal a biohazard-containment breach that occurred in September 2023.
Identification of Respondent
The respondent in this investigation is Dr. Marcus Ellender, Director of Biomedical Engineering Laboratories at Thornwick Medical Research Institute. In his capacity as Director, Dr. Ellender oversees Laboratory Units B-1 through B-4 and directly or indirectly supervises approximately 43 individuals, including 23 research scientists, 14 lab technicians, and 6 postdoctoral fellows. Dr. Ellender has been employed by TMRI since January 2018. He was placed on paid administrative leave effective September 18, 2024, by decision of the Vice President of Human Resources in consultation with General Counsel, pending the outcome of this investigation.
During the course of this investigation, Dr. Ellender has been represented by personal counsel, Rachel Whitmore, Partner, Labor & Employment Practice Group, Hadley, Brennan & Morrow LLP, 75 Ashbury Asset Advisors, Suite 1400, Boston, Massachusetts 02109. Ms. Whitmore has been responsive and cooperative in scheduling matters and was present for the entirety of the October 23–24 respondent interview.
III. Summary of Evidence Gathered
A. Witness Interviews
A total of fourteen unique witnesses have been interviewed across sixteen sessions to date. Three additional follow-up sessions remain pending and are scheduled for the week of November 11, 2024. The interviews conducted are summarized as follows:
Complainant Interviews (5 sessions; September 23 – October 11, 2024). Each of the five complainants identified in Section II above was interviewed individually by Renata Vasquez and Nadia Petrov. The interviews ranged in duration from approximately 90 minutes to 3 hours. Each complainant was interviewed at Calderwood & Harkness's Boston office in a private conference room. Interviews were memorialized through detailed contemporaneous notes taken by the interviewing attorneys; no audio or video recordings were made, consistent with the standard protocol established in the engagement letter.
Corroborating-Witness Interviews (8 witnesses, 8 sessions; October 14–18, 2024). Eight corroborating witnesses were identified through the investigation team's review of the grievance filings, documents collected pursuant to the litigation hold, and information provided during the complainant interviews. The corroborating witnesses interviewed include the following:
• Karen Ashby, Lab Technician IV, Lab B-4
• Derek Loomis, Research Associate, Lab B-4
• Alan Murdoch, Director, Environmental Health & Safety, TMRI
• Joanna Pratt, Lab B-2 Supervisor
• Four additional laboratory personnel and administrative staff members whose names and titles are withheld from this interim memorandum for privacy purposes but are documented in the investigation file
Each corroborating-witness interview was conducted by Nadia Petrov and James Underwood at Calderwood & Harkness's Boston office. Interview durations ranged from approximately 45 minutes to 2 hours.
Respondent Interview (1 witness, 2 sessions; October 23–24, 2024). Dr. Marcus Ellender was interviewed over the course of two days — October 23 and October 24, 2024 — at Calderwood & Harkness's Boston office. The total interview time was approximately 7.5 hours across both sessions. Dr. Ellender's personal counsel, Rachel Whitmore of Hadley, Brennan & Morrow LLP, was present throughout both sessions. The interview was conducted by Renata Vasquez, with Nadia Petrov present for note-taking and follow-up questioning. The interview addressed each of the four categories of alleged misconduct, and Dr. Ellender was given a full and fair opportunity to respond to each allegation and to provide any exculpatory information or documentation he wished to offer.
Upjohn Warnings. At the outset of each interview, all interviewees — including complainants, corroborating witnesses, and the respondent — received Upjohn warnings (also known as corporate-Miranda warnings). Each interviewee was advised that Calderwood & Harkness LLP represents Thornwick Medical Research Institute as the employer in this matter; that the attorney-client privilege belongs to TMRI and not to the individual interviewee; that TMRI may choose to waive the privilege at its discretion; and that confidentiality could not be guaranteed to the individual interviewee. Each interviewee acknowledged understanding of these advisements before the interview proceeded. Dr. Ellender received these advisements in the presence of his personal counsel, Ms. Whitmore, who confirmed her client's understanding.
B. Documentary Evidence
A total of 1,247 documents were collected pursuant to the litigation-hold memorandum issued by Elena Graff, General Counsel, on September 13, 2024. The litigation hold directed the preservation of all documents and electronically stored information potentially relevant to the grievances filed against Dr. Ellender, including but not limited to emails, lab notebooks, safety-incident reports, scheduling records, performance evaluations, meeting minutes, and grant-related correspondence. The document-production review was completed on October 21, 2024.
The key categories of documentary evidence reviewed are as follows:
• Email correspondence: 312 email threads retrieved from Dr. Ellender's TMRI email account, spanning the date range of January 1, 2023 through September 18, 2024 (the date Dr. Ellender was placed on administrative leave). These emails include communications with complainants, corroborating witnesses, EHS personnel, HR personnel, and external parties. A subset of these emails — discussed in detail in Section IV below — constitute key evidence relevant to the retaliation and record-falsification allegations.
• Safety-incident reports: 47 safety-incident reports filed for Laboratory Units B-1 through B-4 during calendar years 2022, 2023, and 2024. Of these, two reports are directly at issue in this investigation: IR-2024-031 and IR-2024-038, both of which relate to equipment malfunctions in Lab B-3 and are alleged to contain falsified narratives attributing the malfunctions to operator error by Trevor Hollins.
• Lab-notebook pages: 15 lab-notebook pages from Lab B-2 that have been flagged for potential alteration. These pages cover the period of September through October 2023 and relate to the biohazard-containment breach alleged by Sandra Nix. A forensic comparison of original entries and subsequently scanned versions has been conducted and is discussed in Section IV.D below.
• Performance-evaluation forms: 28 performance-evaluation forms authored by Dr. Ellender during his tenure as Director, covering evaluations of personnel across Labs B-1 through B-4. These evaluations include the negative performance evaluation of Dr. Priya Chandrasekaran referenced in Section IV.B below.
• EHS audit reports: 6 EHS audit reports prepared by TMRI's internal Environmental Health & Safety office for calendar years 2022, 2023, and 2024. These reports document the findings of routine and for-cause safety inspections of laboratory facilities.
• Additional documents: Scheduling records for Labs B-1 through B-4, lab-meeting minutes, grant-progress reports for NIH grants on which Dr. Ellender is named PI, and HR personnel files for the respondent and each of the five complainants.
C. Haverford Safety Consulting Group EHS Audit Findings
In October 2024, TMRI engaged Haverford Safety Consulting Group, LLC, located at 22 Trapelo Road, Suite 310, Waltham, Massachusetts 02452, as an independent environmental health and safety consulting firm to conduct a parallel safety-compliance audit of Laboratory Units B-1 through B-4. The Haverford engagement was initiated by TMRI's EHS Director, Alan Murdoch, at the direction of General Counsel, and is being conducted under a separate flat-fee engagement at a total cost of $34,500. The principal consultant assigned to the Haverford engagement is Liam Garrett, CIH, CSP.
Preliminary findings from the Haverford audit were received by Calderwood & Harkness on October 28, 2024. The Haverford preliminary report identified nine PPE-compliance deficiencies across Labs B-1 and B-4 and three biohazard-containment protocol violations in those same facilities. While the specifics of the Haverford findings are the subject of a separate report that will be finalized in the coming weeks, the preliminary results are significant because they independently corroborate certain witness testimony — particularly the testimony of Miguel Ferreira, Karen Ashby, and Derek Loomis — regarding systemic safety-protocol breakdowns under Dr. Ellender's supervision.
The Haverford audit is independent of the Calderwood & Harkness investigation. However, because the Haverford findings are directly relevant to the safety-protocol violation allegations under investigation, the investigation team has reviewed the preliminary findings and has incorporated them into the analysis presented in Section IV.C below. The full Haverford audit report, when finalized, will be analyzed and referenced in the final investigative report.
IV. Preliminary Findings by Category
The investigation team has organized its preliminary findings according to the four categories of alleged misconduct set forth in Section II. For each category, we summarize the relevant evidence gathered to date, identify areas of corroboration and conflict, and state our preliminary conclusions. These conclusions are subject to revision based on evidence developed during the remaining investigative steps described in Section VI.
A. Retaliation — Preliminarily Substantiated
Dr. Yuna Sakata's Allegation
Dr. Yuna Sakata, Senior Research Scientist in Lab B-2, reported a chemical spill in Lab B-2 to EHS Director Alan Murdoch orally on August 2, 2024. Dr. Sakata's report constituted protected activity under M.G.L. c. 149, § 185 and TMRI Anti-Retaliation Policy HR-2021-009. Within eleven business days of that report, on approximately August 19, 2024, Dr. Sakata was reassigned from her role on NIH Grant No. 5R01-EB029174 — a five-year, $2.9 million grant for the period 2022–2027, on which Dr. Ellender is the named Principal Investigator — to a lower-profile internal project, specifically the sterilization-protocol review. The sterilization-protocol review is an administrative task with no grant funding, no publication potential, and no alignment with Dr. Sakata's research expertise or career development goals. Dr. Sakata's grievance characterizes this reassignment as a punitive action taken in direct response to her safety report.
Key Documentary Evidence. The investigation team identified an email from Dr. Ellender to Lab B-2 Supervisor Joanna Pratt dated August 9, 2024, at 2:47 PM. The email states, in relevant part: "Sakata is becoming a problem — move her off the grant and onto the sterilization-protocol review." This email provides direct contemporaneous documentary evidence linking the reassignment decision to Dr. Sakata personally and using language ("becoming a problem") that is strongly suggestive of retaliatory intent. The timing of this email — seven days after Dr. Sakata's oral safety report to EHS Director Murdoch — reinforces the inference that the reassignment was motivated by Dr. Sakata's protected activity rather than by any legitimate operational consideration.
Absence of Documented Performance Basis. A thorough review of Dr. Sakata's personnel file, including all performance evaluations authored by Dr. Ellender and by other supervisors, revealed no documented performance deficiency, disciplinary action, or other legitimate non-retaliatory justification for the reassignment. Dr. Sakata's most recent annual performance evaluation, completed by Dr. Ellender in March 2024, rated her overall performance as "Exceeds Expectations" and commended her contributions to the NIH-funded research project. No interim performance concerns were documented between the March 2024 evaluation and the August 2024 reassignment.
Respondent's Position. During the October 23–24 interview, Dr. Ellender was presented with the allegations regarding Dr. Sakata's reassignment and was given a full opportunity to respond. Dr. Ellender stated that Dr. Sakata's reassignment was a routine staffing decision driven by the operational needs of the NIH-funded project. He denied having knowledge of Dr. Sakata's August 2, 2024 safety report at the time he made the reassignment decision. When confronted with the August 9, 2024 email, Dr. Ellender stated that the phrase "becoming a problem" referred to interpersonal conflicts between Dr. Sakata and other members of the research team, not to her safety report. He did not identify any specific interpersonal conflicts or provide documentary evidence supporting this characterization. His counsel, Ms. Whitmore, did not object to this line of questioning.
Corroborating Witness Testimony. Joanna Pratt, Lab B-2 Supervisor, confirmed during her interview that she received the August 9, 2024 email from Dr. Ellender and carried out the reassignment as instructed. Ms. Pratt stated that she was not aware of any performance-related reason for Dr. Sakata's reassignment and that Dr. Ellender did not provide her with any explanation other than the instruction contained in the email. Separately, Alan Murdoch, Director of Environmental Health & Safety, confirmed that he received Dr. Sakata's oral report of the chemical spill on August 2, 2024, and further stated that he communicated the substance of that report to Dr. Ellender on the same day. Mr. Murdoch's testimony directly contradicts Dr. Ellender's claim that he was unaware of Dr. Sakata's safety report at the time of the reassignment decision.
Legal Framework and Preliminary Conclusion. The evidence gathered to date supports a preliminary finding that Dr. Ellender's reassignment of Dr. Sakata from the NIH-funded project constituted retaliation in violation of M.G.L. c. 149, § 185 and TMRI Anti-Retaliation Policy HR-2021-009. The elements supporting this conclusion include: (a) Dr. Sakata engaged in protected activity by reporting a chemical spill to the EHS office; (b) Dr. Ellender was aware of the report, as confirmed by Alan Murdoch; (c) an adverse employment action — reassignment to a lower-profile project with no grant funding or career advancement potential — was taken within eleven business days; (d) the August 9, 2024 email provides direct evidence of retaliatory motive; and (e) no legitimate non-retaliatory justification for the reassignment has been identified. This finding is preliminarily substantiated.
Miguel Ferreira's Allegation of Threatened Termination
Miguel Ferreira, Lab Technician II in Lab B-4, alleged that Dr. Ellender threatened him with termination for raising PPE safety concerns to the Environmental Health & Safety office. Specifically, Mr. Ferreira stated that Dr. Ellender told him, in substance, that if he continued to raise safety issues with EHS, he would be terminated or removed from the laboratory.
Two corroborating witnesses — Karen Ashby, Lab Technician IV in Lab B-4, and Derek Loomis, Research Associate in Lab B-4 — independently confirmed that they heard Dr. Ellender make statements to Mr. Ferreira consistent with this allegation. Both witnesses recalled Dr. Ellender making a statement to Mr. Ferreira along the lines of: "if you go to EHS again, you won't have a lab to come back to." Ms. Ashby and Mr. Loomis provided these accounts independently, without prior coordination, and their descriptions of the statement were substantially consistent with each other and with Mr. Ferreira's account.
This conduct, if confirmed through the follow-up interviews scheduled for November, constitutes retaliation in violation of M.G.L. c. 149, § 185 and TMRI Anti-Retaliation Policy HR-2021-009. The threat of termination for reporting safety concerns to a designated internal compliance function is a paradigmatic example of prohibited retaliatory conduct. The investigation team considers this allegation preliminarily substantiated based on the complainant's testimony and the independent corroboration of two witnesses, but will seek additional confirmation during the follow-up interviews before issuing a final conclusion.
B. Hostile Work Environment — Substantiated as Policy Violation; Insufficient Evidence of Statutory Discrimination
General Findings on Workplace Conduct
Multiple witnesses — including complainants and corroborating witnesses — described a pervasive pattern of conduct by Dr. Ellender that is inconsistent with the expectations of professional and respectful supervisory behavior as set forth in TMRI Respectful Workplace Policy HR-2021-005. The specific conduct described includes the following:
• Raising his voice to a shouting level during lab meetings and in one-on-one interactions with subordinates;
• Using demeaning and belittling language directed at lab technicians, including referring to them as "replaceable" in front of their peers;
• Publicly criticizing employees' work product, intelligence, and competence in the presence of colleagues, rather than providing constructive feedback in private settings;
• Creating an atmosphere of fear and intimidation in which subordinate employees were reluctant to raise concerns, ask questions, or challenge directives — including safety-related directives — for fear of punitive consequences.
This pattern of conduct was described by witnesses across all four laboratory units (Labs B-1 through B-4) and was not limited to any single complainant or any single time period. The evidence indicates that the conduct was a persistent feature of Dr. Ellender's management approach throughout much of his tenure as Director.
Trevor Hollins's Allegation
Trevor Hollins, Lab Technician III in Lab B-3, described verbal intimidation during lab meetings and a generally hostile atmosphere in his working environment. Mr. Hollins stated that Dr. Ellender singled him out during group meetings for criticism that was disproportionate to any actual performance issue and that was delivered in a manner intended to humiliate him in front of his colleagues. Corroborating witnesses confirmed instances of Dr. Ellender publicly berating Mr. Hollins during group meetings. The evidence supports a finding that Mr. Hollins was subjected to unprofessional and demeaning supervisory conduct in violation of TMRI Respectful Workplace Policy HR-2021-005.
Dr. Priya Chandrasekaran's Allegations
Dr. Priya Chandrasekaran, Postdoctoral Fellow in Lab B-1, alleged that she was subjected to discriminatory scheduling — specifically, a disproportionate assignment of weekend and holiday shifts — and that she was denied conference-attendance opportunities that were extended to similarly situated colleagues. She further alleged that Dr. Ellender authored a retaliatory negative performance evaluation in early 2024 in response to her complaints about scheduling and conference-attendance issues.
Scheduling Records. A review of scheduling records for Labs B-1 through B-4 confirmed that Dr. Chandrasekaran was assigned a disproportionate number of weekend and holiday shifts compared to other postdoctoral fellows and research scientists in her laboratory unit during the relevant period. The disparity is significant enough to warrant concern.
Conference Attendance. A review of conference-attendance records and approval documentation confirmed that Dr. Chandrasekaran's requests for conference attendance were denied on at least two occasions during 2023–2024, while comparable requests from similarly situated colleagues in the same lab unit were approved. No written justification for the denials was found in the documentation reviewed.
Performance Evaluation. Dr. Ellender authored a negative performance evaluation of Dr. Chandrasekaran in early 2024 that rated her overall performance as "Needs Improvement." This evaluation was inconsistent with Dr. Chandrasekaran's prior performance reviews, which rated her as "Meets Expectations" or "Exceeds Expectations," and was also inconsistent with informal assessments from other supervisors who had supervised Dr. Chandrasekaran's work on collaborative projects. The negative evaluation was not supported by documented instances of performance deficiency.
Insufficient Evidence of Protected-Characteristic Motivation. While the differential treatment of Dr. Chandrasekaran is concerning and may constitute arbitrary or unfair management, the evidence reviewed to date does not establish that the scheduling disparities, conference-attendance denials, or negative performance evaluation were motivated by Dr. Chandrasekaran's national origin, gender, or any other protected characteristic under M.G.L. c. 151B, § 4 or Title VII of the Civil Rights Act of 1964. Dr. Ellender's pattern of harsh and arbitrary management appears to extend broadly across his subordinates, irrespective of protected characteristics. The evidence is more suggestive of arbitrary and capricious supervisory behavior than of discriminatory animus directed at a particular protected class.
Preliminary Conclusion on Hostile Work Environment
Based on the evidence gathered to date, the investigation team has reached the following preliminary conclusions regarding the hostile-work-environment allegations:
Policy Violation — Substantiated. Dr. Ellender's pattern of verbal intimidation, demeaning language, public criticism, and arbitrary management constitutes a violation of TMRI Respectful Workplace Policy HR-2021-005, which requires all supervisors and managers to maintain a professional and respectful workplace environment. The policy specifically prohibits "public humiliation, intimidation, or belittling of employees" and requires that performance feedback be delivered constructively and in private settings.
Statutory Hostile-Work-Environment Claim — Insufficient Evidence. On the evidence gathered to date, the conduct does not rise to the level of an actionable hostile-work-environment claim under M.G.L. c. 151B or Title VII. To establish a statutory hostile-work-environment claim, a complainant must demonstrate that the hostile conduct was motivated by a protected characteristic — such as race, national origin, sex, or gender — and that the conduct was sufficiently severe or pervasive to alter the conditions of employment. While the conduct here was clearly severe and pervasive, the evidence is insufficient to establish that it was motivated by any protected characteristic. The evidence instead indicates that Dr. Ellender's hostile supervisory conduct was applied broadly and indiscriminately across subordinates of varying backgrounds.
This assessment is preliminary and may be revisited pending the follow-up interviews scheduled for November 11–13, 2024. If additional evidence is developed during those interviews suggesting a protected-characteristic motivation, the investigation team will reassess whether the statutory threshold is met.
C. Safety-Protocol Violations — Preliminarily Substantiated
Miguel Ferreira's Allegation Regarding PPE Bypass
Miguel Ferreira, Lab Technician II in Lab B-4, alleged that on at least three separate occasions between March and July 2024, Dr. Ellender directed lab technicians in Lab B-4 to proceed with aerosol-generating procedures without the required respiratory protection. According to Mr. Ferreira, Dr. Ellender characterized the PPE requirements as excessive and time-consuming and instructed technicians to omit respiratory protection in order to maintain the pace of time-sensitive experiments. Mr. Ferreira identified specific dates and procedures during his interview, and his account was detailed and internally consistent.
Corroborating Witness Testimony
Karen Ashby, Lab Technician IV in Lab B-4, and Derek Loomis, Research Associate in Lab B-4, each independently confirmed in their respective interviews that Dr. Ellender instructed laboratory personnel to bypass required respiratory PPE on multiple occasions during time-sensitive experiments in Lab B-4 during the March through July 2024 period. Ms. Ashby described Dr. Ellender as dismissive of PPE requirements, stating that he characterized them as "unnecessary delays" that impeded the progress of critical research. Mr. Loomis provided a substantially similar account. Both witnesses stated that they felt pressured to comply with Dr. Ellender's directives because of his position of authority and because of the intimidating environment described in Section IV.B above.
The consistency of these three independent accounts — from Mr. Ferreira, Ms. Ashby, and Mr. Loomis, each of whom was interviewed separately and without knowledge of the others' testimony — provides strong corroboration for the allegation that Dr. Ellender systematically directed the bypass of PPE requirements.
Documentary Evidence. Review of safety-incident reports and EHS audit records for Labs B-1 through B-4 revealed gaps in PPE-compliance documentation during the March through July 2024 period. Specifically, PPE-use logs for Lab B-4 during that period were incomplete, with multiple entries missing for dates on which aerosol-generating procedures were conducted. While the absence of documentation does not, standing alone, establish that PPE was not used, the gaps are consistent with witness accounts describing a culture in which PPE compliance was not consistently enforced or documented under Dr. Ellender's supervision.
Haverford Safety Consulting Group Findings
The preliminary findings from the Haverford Safety Consulting Group EHS audit, received on October 28, 2024, independently identified nine PPE-compliance deficiencies across Labs B-1 and B-4 and three biohazard-containment protocol violations in those same facilities. These findings were developed through Haverford's independent audit process — including physical inspections, interviews with current laboratory personnel, and review of safety documentation — and were not based on information provided by Calderwood & Harkness or the complainants. The convergence of the Haverford findings with the testimonial evidence gathered in this investigation provides significant independent corroboration of the allegation that safety protocols were systematically undermined under Dr. Ellender's supervision.
Legal Framework. The directed circumvention of respiratory protection during aerosol-generating procedures constitutes a violation of OSHA standards under 29 C.F.R. § 1910.132 et seq., which establishes general requirements for the provision and use of personal protective equipment in workplaces where employees are exposed to hazards. The specific directive to omit respiratory protection during aerosol-generating procedures also implicates 29 C.F.R. § 1910.134, which establishes detailed requirements for respiratory protection programs and the use of respiratory protective equipment.
The biohazard-containment protocol violations identified by Haverford implicate the NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules. Compliance with these guidelines is a condition of TMRI's receipt of NIH research funding, and violations may trigger reporting obligations to the NIH Office of Biotechnology Activities.
Grant-Compliance Implications. The safety-protocol violations carry significant grant-compliance implications. Dr. Ellender is the named Principal Investigator on two active NIH R01 grants:
• NIH Grant No. 5R01-EB029174, a five-year grant in the amount of $2.9 million for the period 2022–2027.
• NIH Grant No. 1R01-EB034851, a five-year grant in the amount of $1.9 million for the period 2023–2028.
The combined total funding of these two grants is $4.8 million, with approximately $3.1 million in remaining funds across both awards. Safety-protocol violations under the supervision of the named PI — particularly violations of NIH biohazard-containment guidelines — could jeopardize the continued viability of these grants. TMRI may be required to report the violations to the relevant NIH Institute or Center, and the NIH may require a change in PI, impose additional oversight conditions, or, in extreme cases, suspend or terminate the grants. These implications are addressed further in the risk assessment set forth in Section VII below.
Preliminary Conclusion. The evidence gathered to date — including consistent testimony from three independent witnesses, documentary gaps in PPE-compliance records, and independent corroboration from the Haverford EHS audit — supports a preliminary finding that Dr. Ellender directed laboratory personnel to bypass mandatory safety protocols, including OSHA-mandated respiratory protection requirements, in violation of 29 C.F.R. § 1910.132 et seq. and 29 C.F.R. § 1910.134. This finding is preliminarily substantiated.
D. Falsification or Alteration of Records — Preliminarily Substantiated
Lab-Notebook Alteration (Sandra Nix's Allegation)
Sandra Nix, Research Associate in Lab B-2, alleged in her grievance and during her interview that Dr. Ellender instructed staff to alter lab-notebook entries to conceal a biohazard-containment breach that occurred on September 14, 2023, in Lab B-2. The breach involved BSL-2 (Biosafety Level 2) materials. Ms. Nix stated that she personally authored the original lab-notebook entries documenting the September 14, 2023 breach, including the nature and scope of the incident, the materials involved, and the remedial actions taken. She alleged that Dr. Ellender subsequently directed her and other staff to alter the notebook entries to minimize the scope of the incident — specifically, to omit reference to the BSL-2 materials involved and to characterize the incident as a minor procedural deviation rather than a containment breach.
Forensic Comparison. The investigation team conducted a forensic comparison of the original lab-notebook entries authored by Sandra Nix (documenting the September 14, 2023 breach) with subsequently scanned versions of those same notebook pages that were maintained in the laboratory's digital records. The comparison revealed material alterations to the entries. The altered entries, which are in Dr. Ellender's handwriting as confirmed through handwriting comparison with other documents authored by Dr. Ellender, minimized the scope of the biohazard-containment incident. Specifically, the alterations removed references to the BSL-2 materials involved and replaced descriptions of the containment breach with language characterizing the event as a routine procedural correction. A total of fifteen lab-notebook pages from Lab B-2, covering the period of September through October 2023, were flagged for potential alteration.
Safety-Incident Report Falsification (Trevor Hollins's Allegation)
Trevor Hollins alleged in his grievance and during his interview that safety-incident reports were falsified to attribute equipment malfunctions in Lab B-3 to his operator error. Two safety-incident reports are specifically at issue: IR-2024-031 and IR-2024-038. Mr. Hollins alleged that the equipment malfunctions documented in these reports were the result of mechanical failures unrelated to operator conduct, and that Dr. Ellender authored or directed the authoring of narrative descriptions in the reports that falsely attributed the malfunctions to Mr. Hollins's negligence.
Documentary Analysis. Review of safety-incident reports IR-2024-031 and IR-2024-038 revealed narrative descriptions that are materially inconsistent with contemporaneous email communications among laboratory staff describing the same incidents. Specifically:
• IR-2024-031 attributes a centrifuge malfunction to "operator failure to follow standard pre-use inspection protocols" by Mr. Hollins. However, a contemporaneous email thread among Lab B-3 personnel, including an email from Joanna Pratt to Dr. Ellender dated the same day as the incident, describes the malfunction as "an apparent mechanical failure in the rotor assembly" with no mention of operator error.
• IR-2024-038 attributes a biosafety cabinet airflow disruption to "improper operator adjustment of sash height" by Mr. Hollins. However, contemporaneous emails from lab personnel describe the disruption as resulting from a maintenance-related issue with the cabinet's HEPA filter and note that a maintenance work order had been submitted prior to the incident.
The discrepancies between the incident reports and the contemporaneous email communications are significant and support the inference that the incident-report narratives were crafted to shift blame from equipment failures to operator error by Mr. Hollins.
Respondent's Position. During the October 23–24 interview, Dr. Ellender denied altering lab-notebook entries. He stated that any corrections he made to lab notebooks were standard scientific-notation corrections — such as striking through errors with a single line, initialing, and dating the correction — and were consistent with accepted laboratory record-keeping practices. When presented with the forensic evidence of material alterations to the content of the September–October 2023 lab-notebook entries, Dr. Ellender maintained his position that the changes were routine corrections. He did not provide a substantive explanation for why the alterations removed references to BSL-2 materials or changed the characterization of the September 14, 2023 incident from a containment breach to a procedural correction.
Regarding the safety-incident reports, Dr. Ellender denied authoring false narratives. He stated that the descriptions in IR-2024-031 and IR-2024-038 accurately reflected his understanding of the incidents at the time the reports were prepared. He did not provide an explanation for the discrepancies between the report narratives and the contemporaneous email communications.
Rachel Whitmore, Dr. Ellender's personal counsel, objected to certain lines of questioning regarding the lab-notebook entries on the grounds that the questions called for speculation, but she ultimately permitted Dr. Ellender to respond after the investigation team explained the factual basis for the questions.
Preliminary Conclusion. The evidence strongly supports a preliminary finding that lab-notebook entries were altered in Dr. Ellender's handwriting to minimize the scope and severity of the September 14, 2023 biohazard-containment breach in Lab B-2, and that safety-incident reports IR-2024-031 and IR-2024-038 contain narrative descriptions that are materially inconsistent with contemporaneous evidence and appear to have been designed to shift blame to Trevor Hollins. The forensic evidence of alteration, the inconsistencies between the incident reports and contemporaneous emails, and the respondent's inability to provide a plausible explanation for the discrepancies collectively support this finding. The record-falsification allegation is preliminarily substantiated.
V. Respondent's Overall Position
During the respondent interview conducted on October 23 and October 24, 2024, Dr. Marcus Ellender, with his personal counsel Rachel Whitmore of Hadley, Brennan & Morrow LLP present, provided the following responses to the four categories of allegations:
Retaliation. Dr. Ellender denied any retaliatory intent in connection with Dr. Sakata's reassignment from the NIH-funded project. He characterized the reassignment as a routine staffing decision driven by the operational needs of the project and stated that he was unaware of Dr. Sakata's August 2, 2024 safety report at the time the decision was made. When confronted with the August 9, 2024 email, Dr. Ellender attributed the phrase "becoming a problem" to interpersonal conflicts rather than the safety report, but did not identify any specific interpersonal conflicts or provide supporting documentation.
Hostile Work Environment. Dr. Ellender acknowledged that he maintains high standards for the performance of his laboratory personnel and that he can be "direct" in his communication style. He denied, however, that his management approach constituted a hostile work environment or that it was motivated by discriminatory animus toward any employee based on any protected characteristic. He stated that any instances in which he raised his voice or was critical of employees' work reflected his commitment to scientific rigor and research excellence.
Safety-Protocol Violations. Dr. Ellender stated that he occasionally exercised professional judgment to allow "Abbreviated" PPE procedures when time constraints on critical experiments warranted flexibility. He denied directing employees to violate OSHA regulations or any other applicable safety standards. He characterized his approach as a reasonable exercise of supervisory discretion in a high-pressure research environment and stated that he always prioritized the safety of his personnel.
Falsification or Alteration of Records. Dr. Ellender denied altering lab-notebook entries for any purpose other than standard scientific-notation corrections. He denied falsifying or directing the falsification of safety-incident reports and stated that the descriptions in IR-2024-031 and IR-2024-038 reflected his honest understanding of the incidents at the time the reports were prepared.
The investigation team notes that Dr. Ellender's accounts are contradicted or significantly undercut by multiple pieces of documentary and testimonial evidence as described in Section IV above. In particular, Dr. Ellender's claim that he was unaware of Dr. Sakata's safety report is contradicted by Alan Murdoch's testimony; his characterization of safety-protocol flexibility as reasonable supervisory discretion is contradicted by the consistent testimony of three independent witnesses and the Haverford audit findings; and his denial of record alteration is contradicted by the forensic comparison of lab-notebook entries and the discrepancies between incident-report narratives and contemporaneous email communications.
VI. Outstanding Investigative Steps
The following investigative steps remain to be completed before the final investigative report can be prepared and delivered:
1. Follow-Up Interviews. Three follow-up interviews are scheduled for November 11–13, 2024, to address specific evidentiary gaps identified during the document review and initial rounds of witness interviews. These interviews are anticipated to provide additional detail regarding the timeline and frequency of PPE-bypass directives, the circumstances surrounding the preparation of safety-incident reports IR-2024-031 and IR-2024-038, and the events surrounding the September 14, 2023 biohazard-containment breach in Lab B-2.
2. Haverford Final Audit Report. The final comprehensive EHS audit report from Haverford Safety Consulting Group, LLC, is expected to supplement the preliminary findings received on October 28, 2024. The investigation team will review and analyze the full Haverford report and incorporate relevant findings into the final investigative report.
3. Forensic Analysis of Remaining Lab-Notebook Pages. Completion of the forensic analysis of the remaining flagged lab-notebook pages from Lab B-2 is ongoing. This analysis will confirm the scope and nature of alterations across all fifteen flagged pages and will be documented in the final report.
4. Draft Final Report. Preparation and internal circulation of the draft final investigative report within Calderwood & Harkness is anticipated for approximately November 18, 2024. The draft will be subject to internal review by the investigation team and the responsible partner before submission to TMRI.
5. Delivery of Final Report. The final investigative report is anticipated to be delivered to TMRI General Counsel and Vice President of Human Resources by late November 2024.
VII. Preliminary Risk Assessment and Institutional Considerations
Based on the interim findings set forth above, the investigation team identifies the following areas of institutional risk and consideration for TMRI leadership. These assessments are preliminary and are provided to assist TMRI in evaluating its current risk posture and determining whether any interim actions are warranted prior to issuance of the final report.
Regulatory Exposure. If safety-protocol violations are confirmed in the final investigative report, TMRI may have mandatory-reporting obligations to the Occupational Safety and Health Administration. Under OSHA's reporting requirements, employers are required to report certain workplace injuries, illnesses, and hazardous conditions, and the failure to report may itself constitute a violation. The scope of any OSHA reporting obligation will depend on the specific nature and severity of the safety-protocol violations as confirmed in the final report and applicable reporting thresholds. Separately, the biohazard-containment violations identified in the investigation and in the Haverford preliminary audit should be referred to TMRI's Institutional Biosafety Committee ("IBC") for review. The IBC has oversight responsibility for compliance with the NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules, and the IBC's assessment will be relevant to determining TMRI's NIH reporting obligations.
NIH Grant-Compliance Risk. Confirmed safety violations and record falsification by the named Principal Investigator on two active NIH R01 grants present significant grant-compliance risk. As noted in Section IV.C, Dr. Ellender is the named PI on NIH Grant No. 5R01-EB029174 ($2.9 million, 2022–2027) and NIH Grant No. 1R01-EB034851 ($1.9 million, 2023–2028), with combined remaining funds of approximately $3.1 million. Under 45 C.F.R. Part 75 and the NIH Grants Policy Statement, grantee institutions are required to maintain compliance with applicable safety and regulatory requirements as a condition of continued funding. Confirmed violations — particularly those involving the PI's directed circumvention of safety protocols and falsification of records — could trigger mandatory reporting to the NIH, necessitate a change in PI on both grants, result in additional compliance conditions imposed by the NIH, or, in the most severe scenario, lead to suspension or termination of the grants. TMRI's Office of Sponsored Research should be consulted regarding the institution's specific NIH reporting obligations once the final findings are confirmed.
Employment Practices Liability Insurance (EPLI) Coverage. TMRI should consider whether the circumstances warrant early notice to its Employment Practices Liability Insurance carrier, Meridian Indemnity Group, under EPLI Policy No. MIG-EPLI-2024-00417. The policy provides a per-occurrence limit of $5,000,000 and carries a self-insured retention of $250,000. The policy period is January 1, 2024 through December 31, 2024. EPLI policies typically require that the insured provide notice to the carrier as soon as practicable after becoming aware of circumstances that may give rise to a covered claim. If any of the five complainants pursue external claims — whether through the Massachusetts Commission Against Discrimination ("MCAD"), the Equal Employment Opportunity Commission ("EEOC"), or through private litigation — the EPLI policy may provide coverage for TMRI's defense costs and, potentially, any resulting liability. Failure to provide timely notice could jeopardize coverage. The notice obligation should be reviewed in consultation with TMRI's insurance broker, Crestline Brokerage Partners, Inc., located at 155 Seaport Boulevard, Suite 800, Boston, Massachusetts 02210, to ensure compliance with the policy's notice provisions.
Personnel Actions. Pending the final investigative findings, TMRI should consider whether interim protective measures beyond the paid administrative leave currently in effect (since September 18, 2024) are warranted. The primary objectives of any interim measures should be: (a) to protect the five complainants and other laboratory personnel from any further retaliatory conduct or intimidation; (b) to preserve the integrity of the ongoing investigation, including the follow-up interviews scheduled for November; and (c) to safeguard the institution's regulatory compliance posture. TMRI HR should evaluate whether additional communications to laboratory personnel regarding anti-retaliation protections, reporting channels, and the institution's commitment to a safe and respectful workplace are appropriate at this time.
Dr. Ellender's Compensation at Risk. Dr. Ellender's total annual compensation is $285,000, comprising a base salary of $247,000 and a research-leadership stipend of $38,000. If the preliminary findings set forth in this memorandum are confirmed in the final report and termination for cause is recommended pursuant to TMRI Employee Handbook § 9.2, the financial implications should be evaluated in advance. Section 9.2 of the Employee Handbook provides that termination for cause — defined to include, among other things, violation of institutional policies, falsification of records, and conduct that endangers the health or safety of employees — is not subject to severance-payment provisions. However, TMRI should evaluate any accrued-benefit considerations, including unused vacation or paid time off, deferred compensation, and any rights under TMRI's retirement or benefit plans. These considerations should be reviewed in consultation with TMRI's benefits counsel.
VIII. Recommendations for Immediate Action
Based on the interim findings and preliminary risk assessment set forth above, the investigation team recommends the following immediate actions:
1. Continue Paid Administrative Leave. Dr. Ellender should be maintained on paid administrative leave pending completion and delivery of the final investigative report. Premature restoration to duty would risk further retaliatory conduct, could compromise the integrity of the remaining investigative steps, and would be inconsistent with the seriousness of the preliminary findings.
2. Maintain Litigation Hold. TMRI should ensure continued compliance with the litigation-hold memorandum issued on September 13, 2024, by Elena Graff, General Counsel. The litigation hold applies to all 1,247 documents already collected and to any additional documents identified during the remaining investigative steps. All custodians identified in the litigation-hold memorandum should be reminded of their preservation obligations.
3. Reinforce Anti-Retaliation Protections. Anti-retaliation protections for all five complainants should be reinforced under TMRI Anti-Retaliation Policy HR-2021-009 and M.G.L. c. 149, § 185. Vice President of Human Resources Grace Okenwa, in coordination with David Chu (HR's designated point of contact for the complainants), should communicate to the complainants and to supervisory personnel in Labs B-1 through B-4 that any form of retaliation — including but not limited to adverse changes in work assignments, schedules, evaluations, or interpersonal treatment — will not be tolerated and will be subject to immediate disciplinary action. This communication should be documented in writing.
4. Review EPLI Notice Obligations. TMRI should consult with its insurance broker, Crestline Brokerage Partners, Inc., to determine whether the circumstances warrant early notice to Meridian Indemnity Group under EPLI Policy No. MIG-EPLI-2024-00417. Given the seriousness of the allegations and the number of complainants, early notice may be prudent to preserve coverage rights, even in the absence of a formal claim to date.
5. Prepare for Board Briefing. TMRI General Counsel should prepare for a potential briefing of the Board of Directors' Governance & Compliance Committee, chaired by Raymond Alcott, following delivery of the final investigative report. The Committee should be apprised of the interim findings at an appropriate time to be determined by General Counsel, taking into account the need to preserve privilege and the Committee's oversight responsibilities.
IX. Reservation of Rights and Limitations
This memorandum reflects the interim preliminary findings of Calderwood & Harkness LLP based on the evidence gathered to date in the investigation into formal grievances filed against Dr. Marcus Ellender. The conclusions expressed herein are preliminary in nature and are based on the investigation team's assessment of the evidence as of November 4, 2024. The final investigative report may modify, supplement, or alter these preliminary conclusions based on additional evidence developed during the remaining investigative steps, including the follow-up interviews scheduled for November 11–13, 2024, the final Haverford Safety Consulting Group audit report, and the completion of forensic analysis of remaining flagged lab-notebook pages.
This memorandum and the investigation it describes are governed by the laws of the Commonwealth of Massachusetts. Calderwood & Harkness LLP expresses no opinion regarding the application of the laws of any other jurisdiction.
The client in this engagement is Thornwick Medical Research Institute as the employer. Calderwood & Harkness LLP does not represent, and has not represented, any individual employee, officer, or board member of TMRI in connection with this matter. The attorney-client privilege and work-product protection applicable to this memorandum belong exclusively to TMRI and may be waived only by TMRI through its General Counsel.
Nothing in this memorandum constitutes legal advice to any individual other than the designated recipients acting in their official capacities on behalf of TMRI.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Renata Vasquez Partner, Labor & Employment Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, Massachusetts 02110
By: ________
Nadia Petrov Associate, Labor & Employment Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, Massachusetts 02110
DISTRIBUTION
TO: Elena Graff, General Counsel, Thornwick Medical Research Institute Grace Okenwa, Vice President, Human Resources, Thornwick Medical Research Institute
CC: Bernard Crawford, Billing Partner, Calderwood & Harkness LLP (internal copy)
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT